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Top court split on gender lines

Study calls women judges 'outsiders' in many decisions

The two women on the male-dominated Supreme Court of Canada are "outsiders" who seem to be on a different wavelength than the men, concludes a study based on seven years of rulings.

Justices Claire L'Heureux-Dube and Beverley McLachlin were most likely to disagree with decisions by signing the majority opinion less than half the time, says the study, published in the latest edition of the Osgoode Hall Law Review.

"The two women judges appear to be isolated at one edge of the court," wrote the author, Peter McCormick, a University of Lethbridge political scientist.

Mr. McCormick's findings come at a time when the Chretien government is about to start searching for a replacement for retiring Justice Peter Cory. The appointment is widely expected to be a woman to provide better gender balance on the nine-member bench.

The study, however, notes that the two women do not appear to stick together against the men.

"It's clearly not the case that men look at things one way and women do the other," Mr. McCormick, a well-known political commentator, said in an interview.

"Maybe the argument is a very simple one. Maybe to have succeeded as a woman lawyer and judge in the early days of the sexual equality revolution has required very strong and forceful personalities. Maybe the women who have survived are the ones who have learned to dig into their own foxhole and stand everybody off and the lone-wolf style carries over onto the bench."

Retired justice Bertha Wilson, the only other woman to sit on the Supreme Court, also seemed to be out of sync with the majority, said Mr. McCormick.

"It's not knee-jerk but it puts them off the same wavelength as the men over and over again."

Judges on the high court handed down split decisions slightly more than 40 per cent of the time, says the study, which is based on 770 reported rulings.

The two judges most likely to side with the majority were Judge Cory and Justice Frank Iacobucci, who did so more than three-quarters of the time.

"Summed over hundreds of panel appearances, these differences are significant and it must mean for lawyers arguing their cases before the court that they usually have greater optimism if Cory and Iacobucci are nodding their heads than if McLachlin or L'Heureux-Dube are looking pleased," the article says.

Judge L'Heureux-Dube is described as the "most marginal member" of the court who is the least likely to agree with any other judge.

Although there is no pattern of her teaming up with Judge McLachlin to champion women's rights, there are examples.

The women joined forces in 1995 to disagree with the seven men in a ruling that struck down Susan Thibaudeau's bid to avoid paying taxes on child support.

In 1993, the case of Toronto mother Elizabeth Symes pitted the two women judges against the seven men, who ruled child-care costs aren't a tax-deductible business expense for self-employed women.

On the other hand, feminists felt betrayed when Judge McLachlin wrote the 1991 majority opinion striking down the federal rape shield law which protected sexual assault complainants from being questioned about their past sexual history. Judge L'Heureux-Dube wrote for the minority.

Judge L'Heureux-Dube and Judge McLachlin were both appointed to the Supreme Court by former prime minister Brian Mulroney.

Judge McLachlin, 55, was chief justice of the B.C. Supreme Court and a former academic when she was named in 1989.

Judge L'Heureux-Dube, 71, who was appointed in 1987, had been on the Quebec Court of Appeal and had practised family law in Quebec.

Judge L'Heureux-Dube has been described as intuitive and passionate while Judge McLachlin is viewed as a methodical thinker who bases her decisions on the letter of the law.

Mr. McCormick, who is currently writing a book about the Supreme Court, did an earlier study about judges on the Alberta Court of Appeal and found no pattern differentiating men and women.

Studies in the United States, however, have turned up significant differences, concluding that women judges tended to be less punitive, except in sexual assault cases, where they were more prone to convict.