Judging Without the Law

By  John Pepall

This article originally appeared in the print edition of THE DORCHESTER REVIEW, Vol. 8, No. 2, Autumn/Winter 2018.


Claire L’Heureux-Dubé: A Life. Constance Backhouse. University of British Columbia Press, 2017.

The lives of judges are not generally very interesting. Some judges were famous lawyers or prominent politicians before ascending to the bench and that gives their lives interest. But the principal interest of judges sitting on the bench is in their decisions and the reasons they give for them in which some, particularly law professors, try to find them “shaping the law” or “making law.” This project premises particular understandings of what law is and should be, many of which are questionable but unquestioned.

The arrival of The Charter in 1982 and its far reaching application by the Supreme Court of Canada has drawn unprecedented attention to the judges of the Court. Though most Canadians would be hard put to name a single Supreme Court of Canada judge and I, though I was a lawyer and continue to follow its decisions closely, could not name them all, their appointment has been big news and there has been an insatiable demand for a process of appointment to satisfy the questions of who they are and why they should have so much say in our national life.

The judges of the Supreme Court of Canada before The Charter are now only remembered by entries in The Dictionary of Canadian Biography, with the exception of the somewhat exceptional Sir Lyman Duff, who was the subject of a biography published in 1984, in the same Osgoode Society Series as this book.

But the two first Chief Justices of the Charter era, Bora Laskin and Brian Dickson, have both had biographies and now the first two women appointed to the Supreme Court of Canada, Bertha Wilson and Claire L’Heureux-Dubé, have both been the subjects of lengthy biographies.

Constance Backhouse spent nine years working on this book. She interviewed L’Heureux-Dubé at length several times, and practically everyone still living who knew her, had access to all her papers, and tracked down whatever could be found in print or other media about her.

The result is a life in full of a remarkable woman who had a more than usual share of sorrows and success. There is interest in getting to know so well someone one does not know. And then there is her work on the bench. Backhouse has more and more to say about this as L’Heureux-Dubé advances from the Quebec Superior Court to the Quebec Court of Appeal and finally the Supreme Court of Canada. There is remarkably little law in this part of the book, which may relieve lay readers, but raises serious questions.


CLAIRE'S PATERNAL GRANDFATHER Napoléon was born in 1885 in St. Paul, Minnesota in a rather remote branch of the French-Canadian diaspora. His father died in a construction accident and his mother brought her ten children back to a Quebec City orphanage. Rather improbably given his age he claimed to have fought in the Boer War. He certainly served in the Great War and Backhouse writes that his claim to have saved Chubby Power’s life is verified, though in a book with 160 pages of notes there is no note. He made Liberal connections and rose to the rank of major.

He married a bit of money, but ran through that and somehow managed to find more money to run through. His improvidence meant that he could not pay for his son Paul, Claire’s father, to go through Laval, but his connections meant that he was able to get him a job with Customs and Excise.

Napoléon’s exuberant character may partly explain what Backhouse calls Claire’s flamboyant personality. And her father’s stern character. Paul joined the militia in 1924 and served throughout the Second World War, rising to Lieutenant-Colonel. His career with Customs and Excise was modestly successful.

The family of Claire’s mother, Marguerite Dion, were rather grand and quite comfortable. Marguerite’s mother Antoinette née Fortin is described as “an adherent of Jansenism, an austere, prohibition-laced, heretical theological movement.” Claire describes her grandmother as “an intellectual” and “a very powerful woman” who was “interested in everything.” She was also apparently a profligate spender.

Marguerite’s father, Victor Dion, ran the Hôtel Saint-Louis in Quebec City, an “intellectually invigorating environment.” Unfortunately he invested $60,000, perhaps $750,000 today, in a dud mine and the family was reduced to such a state that the Dions and L’Heureux’s became neighbours and Claire’s parents met in their teens and fell in love. They were married in 1926 and Claire was born in 1927. There were three more daughters.

In 1935 Paul L’Heureux was appointed collector of Customs and Excise in Rimouski and the family moved there to a comfortable house overlooking the St. Lawrence.

In 1936 Marguerite was diagnosed with MS and sent for treatment in Montreal. Her daughters were sent to an orphanage run by very uncharitable Sisters of Charity. The episode only lasted a few months but left its mark. Marguerite returned to Rimouski in the fall and lived with her disability to 1983.

In 1937 Claire went into boarding at the Ursuline Convent in Rimouski. For the next nine years she was educated by nuns under a strict regime, but she thrived and excelled at her studies. Of the Ursulines Claire says “They were dedicated educators and extraordinary women. I loved being there.”

Woman were only admitted to the practice of law in Quebec in 1942. But expanding possibilities for women were in the air and the nuns at the Collège Notre-Dame-de-Bellevue where Claire was finishing her baccalaureat in 1946 invited the recently called lawyer Jeanne d”Arc Lemay-Warren to speak to her class. She decided to become a lawyer. He father disapproved and her mother was supportive, but in 1948 Claire enrolled in law at Laval.

Backhouse gives a bleak and condescending account of law at Laval around 1950. “It was dedicated to the formation of a professional and social elite, rather than meant as a centre for intellectual and critical inquiry.” she writes. Yes. They were training their students for an elite profession — rather than preparing them to be a presumptuous intellectual elite to assume command of our national discourse. The faculty just taught the law as it was, early in the morning and at the end of the day, as many of them were in practice, allowing Claire to work during the day to help pay her way. They were “technicians of the law,” uninterested in criticizing it or in theories then fashionable in American law schools like legal realism. It was very boring.


I CAN TESTIFY that the law can be very boring. Criticising it can be fun. But criticising the law is not much use in the practice of law or for clients. Law schools across Canada underwent a revolution in the 1950’s as they were taken over by full time academics who used their control over access to a lucrative and expanding profession to impose their ideology of what the law should be and how it should be made, by judges, often themselves, or their favourite students. Claire, always an excellent student, learned the law and graduated well prepared to practice it.

Just after Claire’s final bar exam her younger sister Lucie died of heart failure. She had had rheumatic fever as a child and seems not to have received the best medical attention, but her death confirmed Claire in her loss of faith as she graduated from the instruction of nuns. According to Backhouse she became “strongly opposed to religion.” All that remained from her Catholic upbringing was an obscure sense that collective rights” could be “more important than individual rights.” Backhouse writes “This view strengthened with time: “I’m against…all religions, not only the Catholic one.…I think religion is destructive. … I don’t believe in anything. The one thing that remained with me,…is the portrait of the community coming together.


BACKHOUSE COVERS IN detail, what has been in part her specialty, the history of women’s admission to law and advancement in the profession. Up to a point this is useful context, but as it goes on it seems she may be writing for young people who don’t know, despite the roughly centennial commemoration of women’s suffrage, that women didn’t always have the vote. L’Heureux-Dubé is a refractory witness for Backhouse’s story as she has downplayed the challenges she faced in taking on her career. A reporter who interviewed her on her first becoming a judge reported:

Elle n’a jamais senti le besoin de joindre les rangs des ‘Women’s lib’ qui se proposent de faire l’émancipation de la femme. ‘Pour moi, la discrimination n’a jamais été un problème. J’admets qu’elle existe et que de tels mouvements peuvent réveiller la population mais j’ai l’impression que personne ne croit vraiment à ces mouvements’ dit-elle.

On leaving Laval Claire quickly got a job as a legal secretary to Sam Bard, a Jewish lawyer practicing in Quebec City. While her father resisted her plan to go to law school she had trained and briefly worked as a secretary. She was bilingual. Within a year Bard took her into his practice as a lawyer.

In the 1950’s there was no surplus of lawyers and there was work for all. Bard’s practice was busy and Claire soon had clients of her own. Her practice received complimentary notice in newspapers.

Claire always worked very hard, but she was gregarious and in Backhouse’s phrase a “femme fatale.” After a brief engagement that her mother frowned on, she met Arthur Dubé, a metallurgist who became a professor at Laval and according to Claire “the brightest man I ever met.” She had gone with friends to the bar of the Chateau Frontenac. They argued about the existence of God: Arthur for, Claire against. It was “love at first sight.” But it would be six years before they married. A daughter, Louise, was born in 1960 and a son, Pierre, in 1964. Claire became Claire L’Heureux-Dubé.

Québecois society was small and particularly the society of Quebec City. L’Heureux-Dubé and Arthur Dubé knew everyone. He had known Pierre Trudeau since they had both worked in Ottawa in the early fifties. In 1972 Trudeau turned up at L’Heureux-Dubé’s home to ask her to run for the Liberals in the upcoming election. He was offering her a safe seat. She declined and suggested Albanie Paré Morin, who was easily elected. L’Heureux-Dubé’s diffidence was admiringly reported in the newspapers.

Shortly after the election Morin called L’Heureux-Dubé to ask whether she would accept appointment as a judge. There was an opening on the Superior Court of Quebec and they were looking for a woman. L’Heureux-Dubé said no. A judge’s salary of $38,000 (say $210,000 in 2018 dollars) was less than she was making in practice. Maybe in five years.

A few days later she returned a call from Otto Lang, the Minister of Justice, who had been trying to reach her for three days. Lang told her that she had been appointed. L’Heureux-Dubé accepted her fate. This is one of several incidents in the book where multiple sources give differing accounts of how something happened.

After only eight months on the bench she took leave to conduct an Inquiry into the Montreal office of the Department of Manpower and Immigration. There had been reports of corruption, immigration officers seeking sexual favours from or having improper relationships with applicants whose files they were handling, and corrupt or improper behaviour by immigration consultants, sometimes with the connivance of immigration officers. Just over two years after her appointment L’Heureux-Dubé submitted her report to general satisfaction.

Backhouse is critical of her failure to explore themes of racism and sexism. The applicants were generally black women from the Caribbean. The immigration officers were all white men. She muffles her criticism by directing it at “the Commission,” obscuring the fact that the Commission was L’Heureux-Dubé. There were no other commissioners. She directed the inquiry, hired the staff and wrote the report, with her usual application and decisiveness. She followed her terms of reference, did what she was appointed to do, and was respected for it. Later Royal Commissions have taken the specific matters they were appointed to inquire into as a starting point for a general inquiry into the state of society.

L’Heureux-Dubé returned to the bench. But her marriage was in trouble. Arthur Dubé was an alcoholic and depressive. They lived increasingly separate lives. On July 11, 1978 he “shot his head off with a hunting rifle” in the basement of the family home. His 18 year old daughter Louise discovered him and her younger brother Pierre could not be kept from coming to see what was going on.

Indomitable, L’Heureux-Dubé got through the funeral, not prevaricating about what had happened, and carried on her work as a judge. In October 1979 she was appointed to the Quebec Court of Appeal by Joe Clark’s Progressive Conservative government. The Minister of Justice, Senator Jacques Flynn, was another Quebec City lawyer. L’Heureux-Dubé was an obvious candidate to be the first woman on the Quebec Court of Appeal and the second woman on a Court of Appeal in Canada after Bertha Wilson in Ontario. In Backhouse’s exhaustive account it is suggested that Maureen MacTeer had some influence on the appointment.

Backhouse reviews L’Heureux-Dubé’s decisions on the Superior Court and Court of Appeal, particularly family law decisions. In many cases she sided with women’s claims. In some cases she sided with men who had fallen on hard times. But there is no discussion of the law she was applying, which was radically changed in all provinces and in Ottawa while she was on the bench. L’Heureux-Dubé had herself worked on a committee preparing family law revisions to the Quebec Code Civil before she became a judge. The discussion is what it might have been at a dinner party of lay people expressing their sympathies.


IN APRIL 1987 a call came from Brian Mulroney offering her an appointment to the Supreme Court of Canada. He gave her to 8:00 the next morning to decide. He said “she would have an “opportunity to shape the future of this country unlike few others,” and to “enter the history books of Canada big-time.” She spoke to other senior judges and friends and accepted.

Some quoted by Backhouse describe L’Heureux-Dubé as ambitious. Others thought her a workaday judge only elevated because it was time for a French-Canadian woman on the Court and she was an obvious choice.

Backhouse has a lot of tendentious gossip about how L’Heureux-Dubé was received by her new colleagues on the Court and how they worked together over the years. Some of it appeared in the press at the time. But Backhouse’s book has attracted attention by repeating and adding to it. What is clear is that the Supreme Court of Canada is not the happy billet many resentful people think it is. Nine strong personalities are called from their home towns to take on heavy work and responsibilities in which they must work closely together. On the Quebec Court of Appeal L’Heureux-Dubé was at home with people she knew, generally sitting in panels of three and mindful that they didn’t have the last say. There was the Supreme Court of Canada above them. Many Supreme Court of Canada judges have resigned well before retirement age, sometimes after only a few years on the Court. By contrast judges of the Supreme Court of the United States almost always serve to death or near it.

By the time of L’Heureux-Dubé’s appointment the Supreme Court of Canada had been applying the Charter for five years and its equality provisions for two. But it took a couple of years for her to realise that she was no longer bound by precedents and had “an opportunity to shape the future of this country.” She became obsessed by her work, even sleeping on a cot in her office to keep up with her reading and writing. Some of her colleagues thought this was grandstanding.

In addition to seeing how her colleagues on the Court handled cases she now had clerks, top students from law schools promoted by their professors, who knew best what the law should be and for whom there is no distinction for judges between what they think the law ought to be and what it is.

To Backhouse’s chagrin, L’Heureux-Dubé “refused to identify as a feminist.” Indeed, until she started giving reasons on the Supreme Court of Canada, it would be hard to know what she thought apart from “There is no God.” Backhouse writes that there were lively exchanges of ideas in her family, amongst her friends and with her colleagues, but we are never given any detail on what those ideas were. In 1972 Trudeau and the Liberals assumed she was a federalist Liberal, and she declined the nomination for personal rather than political reasons, but she had no detectable political leanings. Any associations she joined were dedicated to good works without any ideological tendency. Some of us may have an idea of the intellectual culture she was given by the nuns, and what was in the air before and during the Quiet Revolution, but what she thought of it all is a blank.


BACKHOUSE REVIEWS THE principal cases in which L’Heureux-Dubé gave reasons on the Supreme Court of Canada. She begins her biography with R. v. Ewanchuk and returns to it near the end. The case brought her her most public attention.

Ewanchuk was, unbeknownst to the judge who tried him, a serial rapist. In 1994 under the pretext of offering his 17 year old victim a job in his wood working business her lured her into his trailer to show her his work. From the outset Ewanchuk was “quite tactile.” He proceeded to ask for a massage from and then massage his victim. Matters proceeded from there in stages with the victim repeatedly saying “No” and Ewanchuk backing off briefly but then proceeding until he had his hand inside her shorts and his penis out. She said “No. Stop” and he did. He gave her $100, saying it was for the massage. She went home and called the police.

The trial judge held that the Crown had not proved beyond a reasonable doubt that there had not been what he called “implied consent.” The Crown appealed the acquittal to the Alberta Court of Appeal. The Chief Justice of Alberta, Catherine Fraser, would have allowed the appeal and substituted a verdict of guilty. Her male colleagues dismissed the appeal. “Buzz” McClung, as it happened the grandson of the suffragist Nellie McClung, wrote in his reasons that “it must be pointed out that the complainant did not present herself to Ewanchuk … in a bonnet and crinolines,” and noted that “she was the mother of a six-month-old baby …”

The acquittal was appealed to the Supreme Court of Canada, which allowed it unanimously and sent the case back for sentencing. Backhouse writes that L’Heureux-Dubé had wanted to write the Court’s judgment but the job was given to John Major, who was himself from Alberta. Several different versions of why this happened are given us and we must decide for ourselves what may have happened.

Major, in reasons signed by five other justices, set out clearly how the trial judge and the majority in the Court of Appeal had got the law wrong despite efforts made in amendments to the Criminal Code to clarify and restrict the defence of honest but mistaken belief in consent. There was no defence of implied consent. L’Heureux-Dubé wrote concurring reasons also signed by Justice Charles Gonthier.

She agreed “generally” with Major’s reasons but wished “to add some comments and discuss some of the reasoning of the trial judge and the Court of Appeal.” She quoted and condemned all of McClung’s egregious comments, which reached their peak in the suggestion that “In a less litigious age going too far in the boyfriend’s car was better dealt with on site - a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee.”

Stung, McClung fired off a brief letter to The National Post in which he accused L’Heureux-Dubé of a “graceless slide into personal invective.” and suggested “The personal convictions of the judge, delivered again from her judicial chair, could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the Province of Quebec.”

There was an uproar. McClung claimed not to have known of Arthur Dubé’s suicide eighteen years before. In a public apology printed in The Globe and Mail a couple of weeks later he wrote “I immediately conveyed my explanation and apology to her later the same day.” Prominent defence lawyers led by Edward Greenspan weighed in to defend McClung and criticise L’Heureux-Dubé. Others from the Canadian Bar Association to law professors to commentators in the press rallied to her support and condemned McClung.


McCLUNG HAD BEEN a judge for twenty years and before that a top criminal defence lawyer. Like many in the criminal defence bar he was a “character,” as flamboyant in his way as L’Heureux-Dubé in hers. Such types know the law as a tool kit for getting their clients off. They can make good trial judges, but perhaps don’t belong on courts of appeal.

But L’Heureux-Dubé’s reproof to McClung was only part of her concurrence in Ewanchuk. She began by citing statistics on violence against women. She cited an international convention on the Elimination of All Forms of Discrimination against Women and a United Nations General Assembly Resolution. She proceeded to cite academic writing on “myths and stereotypes,” and such things as “The Standard of Social Justice as a Research Process” (1997), 38 Can. Psychology 91, K. E. Renner, C. Alksnis and L. Park who “make a strong indictment of the current criminal justice process, at p. 100”:


The more general indictment of the current criminal justice process is that the law and legal doctrines concerning sexual assault have acted as the principle [sic] systemic mechanisms for invalidating the experiences of women and children. Given this state of affairs, the traditional view of the legal system as neutral, objective and gender-blind is not defensible. (L’Heureux-Dubé’s emphasis.)

This was nothing new for L’Heureux-Dubé, now in her twelfth year on the Supreme Court of Canada. But her reproof of McClung and his intemperate response drew public attention to her jurisprudence and reaction was divided.

Major was able to dispose of the case correctly by analysing and applying the law as he found it in the Criminal Code and the cases. L’Heureux-Dubé “generally” agreed with him. How did her comments aid in understanding the case before the Court? How could they in any way help it to dispose of it correctly? The connection is not made. The best that can be said for her reasons is that they were a kind of editorial comment on the errors that led to its taking five years before Ewanchuk got his just deserts. But the law having been authoritatively settled did the “justice process” still stand indicted?

The Court has shown an increasing tendency to go way beyond what may be necessary to decide a case in its reasons. Reference re Supreme Court Act, ss. 5 and 6, which decided that Marc Nadon was not eligible for appointment to the Court as a Quebec member, a narrow technical question of interpreting the Supreme Court Act, as its short title shows, was inflated in pages of blather from the majority into a case going to the the very foundations of the nation and Quebec’s place in it, and the august role of the Court as guardian of the nation.

As she settled in to her role as a Supreme Court of Canada judge L’Heureux-Dubé became known for bringing “social context” into her judgments, a pile of social science studies and academic theory whose connection with the facts and the law in any specific case was usually as unclear as it was in Ewanchuk. This was a practice well established when she arrived on the Court and keenly pursued by others, but she stood out. She regularly denied being a feminist and there is no evidence she read such stuff before she reached the Supreme Court of Canada, or took it as holiday reading when she was on the Court. She found such stuff in play on the Court when she arrived and her clerks had imbibed it at law school.


L’Heureux-Dubé had no formation from which to assess critically the salience of the ideas she met at the Supreme Court of Canada. Had she even heard of Catherine MacKinnon before she reached the Court? What the nuns had taught her she had left behind. But she took to it all with her usual application. Her clerks sometimes drafted reasons for her, though “I edited everything, word for word. I never let anything out [of which] I was not sure 100 percent.” She was “very open” to whatever they may have thought.

Much of the language of The Charter being vague and broad, and the Court having decided to make the most of it, cases have come to be decided based on “evidence” from the social sciences and related theory. As there is little that is “settled” in the social sciences and new theories are constantly being elaborated the Court’s decisions often do not settle the law. Thus Criminal Code provisions on prostitution were upheld in the Prostitution Reference in 1990 and thrown out in Canada v. Bedford in 2013 and assisted suicide was not a right in Rodriguez v. British Columbia in 1993 and became one with Carter v. Canada in 2015.

The Court obscures the line between law, and facts based on social context evidence, by claiming that the law “evolves”, “doctrines of arbitrariness, overbreadth and gross disproportionality” are cited in Bedford, and new legal arguments are raised, making social facts that were not material material. Another phrase from Bedford: “social and legislative facts — that is, facts about society at large, established by social science evidence …” illustrates the confusion.

If Charter, and other, cases are going to be decided largely on the basis of “social facts” we might wonder why they should be decided by lawyers. Would it not be better to appoint social scientists to the Supreme Court of Canada? What’s law got to do with it? And is politics and our rough democracy not our common effort to understand ourselves and what’s going on and settle our common affairs together? Why should nine lawyers on a bench get the last say?

Not surprisingly Backhouse’s review of five of the most important cases in which L’Heureux-Dubé wrote reasons on the Supreme Court of Canada says little about anything one could call law. It’s all about L’Heureux-Dubé’s understanding of the social context.

Well before she retired from the Supreme Court of Canada in 2002 L’Heureux-Dubé had joined the international confraternity of top judges who meet regularly to exchange compliments and compare notes on how they are doing at keep their respective countries in order, or sometimes, as with the European Court of Human Rights, many countries. They come from radically different legal traditions and countries facing great challenges. She hung with the Chief Justices of Pakistan and Zimbabwe.

The presumption of these get-togethers is that there is something above the law that the various countries have inherited or their peoples have adopted that the judges know and should impose, universal rights, which may be expressed in broad language in charters or bills of rights, but need not be. The judges encourage each other to fill in the broad language with the latest social theory. They never think what the people who pay them might want them to do. They are supreme. They do not discuss the nitty gritty of mortgage law or construction liens.

On this circuit L’Heureux-Dubé became an enthusiast for further education of judges. By this was not meant updates on new legislation or Supreme Court of Canada decisions they were bound to follow. In Bedford and Carter the Court was insistent that lower judges should not feel bound to follow its decisions “like a straightjacket” but should be open to new arguments and new social facts their benighted predecessors had missed.

What judges needed was enlightenment on the social science and theory that L’Heureux-Dubé was so keen on. Some called it indoctrination. The government must see to it that judges are woke.

In the middle of L’Heureux-Dubé’s time on the Court came another personal tragedy, the death of her son Pierre who was in a Quebec prison for armed robbery. Claire took a “mountain of files” when she visited him in hospital and barely missed a beat in her work. Pierre had always had severe mental troubles and had a long criminal record. There had been brief happy times. But Claire’s commitment to her family was as strong as her commitment to her work.

In the years after her retirement in 2002 L’Heureux-Dubé received widespread media attention again when she spoke out against Sikhs being allowed to wear kirpans to school and Jews allowed to build sukkahs on their balconies. In 2013 she endorsed the Parti Québecois Charter of Values, which would have banned all religious garb in the public service. Haroon Siddiqui accused her of “extreme anti-Muslim bigotry” in The Toronto Star. Another former Supreme Court of Canada judge, Louise Arbour, took issue with her in the press.

The kirpan issue reached the Court after L’Heureux-Dubé had retired. We may surmise that she would have been a lone dissenter on the case, in which the Court unanimously held that the boy had a right to wear his kirpan to school. Freedom of religion is a right expressly set out in the Charter. What social context would she have invoked to circumscribe it? What would she have had to say about “collective rights,” a belief in whose importance we are told was all that remained with her from her religious upbringing?

When it was argued that a watered down version of the Charter of Values introduced by the Quebec Liberals would be struck down under The Charter, L’Heureux-Dubé argued that a “government of courts” should not trammel the “democratic choice of society.”


THE IMPLICATION OF this weighty tome is that we should put our faith in judges. That, if we can by some process get the right ones, and will respect their decisions, all will be best in the best of all possible worlds. That by their supreme understanding of society we can be confident that the people and their politicians in Parliament and the Legislatures will be saved from all folly. After all, in the fallback position the Court often adopts, our politicians gave them the power. But the assumption was that there was something called the law that judges understood best and law would be supreme. Not judges. In Backhouse’s book and L’Heureux-Dubé’s Supreme Court of Canada judgments there is no concept of law.

If there is law that the Court is applying one can imagine a judge saying, in private if not from the bench, that while she thinks X law is fine, she felt bound by The Charter to strike it down, or while she felt Y law was bad, she felt there were no grounds in The Charter for striking it down. But since around 1990 one cannot imagine that any judge has held against a law he was OK with or for a law he didn’t like. All this is done on the basis of “social context” of which the judges have no greater understanding than the average people at a bar on a Friday night.


BACKHOUSE IS A professor of law at the University of Ottawa Law School. So far as I can make out, she teaches criminal law there. No doubt she knows more law, “black letter law” as it used to be called, than I now do. But for her that is only a subject for criticism. She is on the “long march through the institutions” to bolster an ideological hegemony. Perhaps she is right, and her ideology should be accepted as “settled social science.” But her book is intellectually feeble. It sees no need to analyse and argue its assumptions.

Backhouse’s last sentence is “A truly singular woman and an extraordinary judge, her influence was demonstrably and undeniably transformative.”

Claire L’Heureux-Dubé is a singular woman. But she did not “shape the future of this country.” She was shaped by her times, and her life. Reliance on oral history has its limits. People speaking on the record about someone still living and the subject of a sympathetic biographer often give a bland account. Only a handful of Blackhouse’s sources, recounting judicial indiscretions, asked to be anonymous. But the facts of L’Heureux-Dubé’s full life and the many photographs in the book enable us to know and respect her.

Her reasons will be read and cited by law professors and students and lawyers trying to make a case for many years. But as they treat so little of the law and more and more law books fall from the presses while the authority of old law fades, whatever influence they have will fade too. Pace the law schools, judges do not make law. They find it. When they start making it, there is no law. Judges should find only a small place in our history books. 

Originally published in the Autumn-Winter 2016 print edition of THE DORCHESTER REVIEW.

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