I am about to join the Quarter Century Club. On March 22, 2016 I shall have been called to the Bar of Ontario for 25 years. Practising for 25 years and I’m still trying, after all these years, to get it right!
Last Monday, after I had dropped my kids off at their schools, I took a phone call (hands free, of course) from a friend who suggested I should tune in to the radio interview playing on CBC’s Metro Morning. He excitedly told me to tune in to hear the tale of the droves of women leaving criminal defence work due to discrimination. My friend was a long time criminal defence attorney – he probably clocked even more than my almost 25 years, but he is now a judge of the Ontario Court of Justice. We have been friends since I started in the criminal defence arena. He witnessed much of my storied career, and has heard, with much good humour and patience, many of my tales. My tales of being an unrepentant feminist in the ‘Alphaville’, at one point, almost exclusively, male, world of criminal lawyering. He also knew that when I started out in the criminal defence bar, I had long straight blonde hair half way down my back, and legs that caught a camera crew’s attention more than once during media scrums of some of my high-profile cases.
When I embarked on my legal career, I did it vowing to authentically embrace my womanhood with all of its dimensions. In law school, I enjoyed reading Feminist Theory. I wrote an essay entitled “Gone Fishing: Finding Herself Amongst a Sea of Men”, about the construction of ‘self’ in a liberal democracy and the development of the ‘reasonable man’ concept in law. The Morgentaler decision came down while I was in third year law school. I chaired a study group about this ground breaking decision cemented in the notion that a woman has the fundamental right to control her own body. I published in the University of Toronto Faculty of Law Review, an accomplishment in its own right, “Through Her Looking Glass: PMS on Trial.” In this essay, I wrote, “The law’s working principles of rationality, astract universality and objectivity were conceived within a liberal political tradition. Their genesis, then, owes a debt of gratitude to classical liberalism’s ideas: equality, autonomy and rights-based notions of morality. All persons are, juridically speaking, equal, having the same rights and obligations as all others. All persons are autonomous beings possessing free will.
But the law in practise does not treat men and women as equal, nor equally possessed of free will. Men, it seems, are more equal, for they do not carry the burden of ‘hysterical’ bodies nor of deficient minds…..And so from within this patriarchy has come the glorification of maleness. Maleness has been made the norm of what is human.”
It ought not to have come to any surprise to me then that when I first started walking the corridors of the Toronto Superior Court of Justice and I came upon a room with a thick wood door, labelled, ‘Barristers’ with full length lockers just behind it, and men coming out of the room in their black wool court robes, that I was stopped when I tried to enter the room. The retired male gatekeeper of the ‘ Barristers’ robing room, who ‘guarded’ the comings and goings out of this room, and sold what seemed like day old muffins and luke warm coffee at a good price, informed me, gruffly, “that room is for men. Your robing room is down there….” He pointed his aged hand down a long dank corridor. I ventured upon my robing room. It was small and confined. No windows. No full length lockers, and certainly, no showers to scrub up at after a long day litigating. Did I mention the ‘Barristers’ robing room had showers for the men? My room, had a faux metal plate affixed to the front welcoming, ‘Lady Barristers’, to its confinement. I harrumphed, snorted and promptly walked away to pen a ‘Dear So and So’ letter to the York County Lawyers Association, responsible as they were for the robing rooms. I wrote, “I might be a woman, but there is not a lot lady like about me! Might we please be accorded a space to robe that is less coffin like and please may we dispense with the ‘lady’ nomenclature?” It was with much pride that months later, I was able to ask the gatekeeper of the robing rooms for a key to the Female Barristers Robing Room, now relocated to a brighter, bigger space with good size lockers, a washroom and even a chair. Progress. 1992 style.
I often prefer pant suits to skirts and dresses. Pantyhose are suffocatingly hot in Toronto’s humid summers. They were particularly suffocating to a neophyte pantyhose wearer like me starting my on the job legal training at a prestigious downtown Bay Street law firm. In the late 1980’s, corporate attire for women consisted of a blue skirt and jacket suit, preferably with a high neckline, better if it had a flouncy ‘female’ version of a tie, sensible pumps, and of course, hose. The de rigueur look hoisted on women breaching ‘Alphaville’s walls, was its own straightjacket. Confine. Hide. Do not show your essential ‘otherness’ – your femaleness. I always loved to sew and design. I fashioned myself a wide pair of pants, and chopped off the bottoms thereby fashioning , culottes for the corporate world. Pants that would look like a skirt to the untrained eye. I hoped that no one was observant enough to note my transgression. Next, I got rid of the pantyhose. My subway ride to work seemingly 10 degrees Celsius cooler. Tepidly, I kept transgressing until one day I arrived at work in pants. Real pants. I remember the look a senior woman partner gave me as I took the escalator up to work. She was mortified but secretly, I could tell, was thrilled that someone was pushing the sartorial envelope for corporate women. Progress. 1990 style.
But pants do not define me either. In embracing my womanhood with all of its dimensions, some days, I like to wear dresses. Dresses made for a woman. I remember one day going into my senior lawyer’s office, and he quipped about my dress, he of an observant eye, “Isn’t that a rather shiny fabric?” What he termed shiny was not shiny, just silk and flowing. All the essential parts were covered up – there was nothing scandalous about this dress except that it was not some sort of stiff broadcloth constructed dress meant to obliterate my womanhood. I quipped back, “Oh, it’s not shiny, just silk and I love it, thank you for noticing it.” He said nothing. What could he say. Except that on my job review, he did note that I had a lot of self-confidence. Apparently this could be a detriment.
Did I mention this senior lawyer partner who was charged with teaching me everything I needed to know about criminal defence work, only rarely spoke to me. He much preferred to give tasks to the male articling student assigned to him. I stood for days in front of his office until I could finally somehow break him down so that he would at least give me work. The big breakthrough though came one day in the Ontario Court of Appeal, when he whipped around to finally break his silence with me. He said incredulously, “I hear you spend hours in the weight room and can bench press alot.” Aaah, now we could talk like guys do….this senior lawyer had been a varsity football player and we spoke at least some of the same language. Jock talk. Progress. 1991 style.
For my call to the Bar, I determined I wanted to wear grey pinstripe barrister pants. Not a skirt. Pants. Only there was no such thing. I had a pair of pants that were comfortable and professional. High waisted with side pockets and just enough drape over the seat and legs that they allowed for a crisp ‘statement’ march. I took this pair of pants to the robes makers to be replicated in the standard issue barristers grey pinstripe. I believe I must have been one of the first women to wear pants to their call to the Bar inasmuch as they had no pants to choose from, and I had to ‘bring my own’ as it were. However, in 1991, feminism had its sisters…and I was pleasantly surprised to be seated beside my almost namesake, who also proudly wore pants for her call to the Bar. We had never met before. We met up again later, in another chapter in my life as an unrepentant feminist. Martha McCarthy sat beside Karen McArthur at the Toronto Call to the Bar March 22 1991. Alphabetical after all. We both wore pants. Years later, Martha championed for equal rights and same sex marriage. Trailblazer. Progress.
Being a woman in a man’s world is not easy. Being authentically a woman is even tougher. I have tried for the last 25 years to do just that.
I enjoyed and still do enjoy criminal defence work. The cut and thrust. The uglier the crime the better. There’s bragging rights in really making it in the domain of murder, rape & mayhem. When the bad boys call and they want you to defend them – you’ve arrived. Intrigue. Adrenaline. Testoterone. Swish them together and it is a heady mix.
Women leaving in droves? Discrimination. Sure it is out there. Call it. Name it. Don’t back down.
Or as Nellie McClung said, “Never retract, never explain. Never apologize: Get things done and let them howl.”
I remember being conflicted about being a woman and cross-examining a complainant in my first rape trial. I then thought to myself, if I don’t do rape trials, and were all other women defence lawyers to adopt the same stance, then only men will be left cross-examining complainants, the majority of whom are women. I thought to myself I owe it to women to do this part of the job, as a woman, and embrace womanhood with all of its dimensions. And so I cross complainants, penetrating their stories for inconsistencies and holes, knowing what it is like to be penetrated.
But so too in not shying away from the ugly crimes, the sordid stuff, have I developed my forensic stealth so that when the time comes, I can use my experience and judgement to ferociously defend women who need defending. A woman charged with aggravated assault of her husband was one of my first such cases. She had been convicted of throwing boiling water on him – he was left with third degree burns all over. She came to me post-conviction. I moved to re-open her case, advancing a battered woman defence. The old time, about too retire provincial court male judge had never heard of any such thing. Regina v. Lavallee was news to him in small town Ontario. However, I pressed and pressed, and eventually he accorded my client, not a re-opening but a conditional discharge. No criminal record for my nurse. Progress. 1992 style.
Sure, many times even to this day, 25 years later, when I call a Crown’s office, the administrator will question me, “What law firm are you calling from?” As if, women themselves can not be lawyers, but only secretaries. It never ceases to amaze me.
But after almost 25 years of lawyering, “What law firm are you calling from?”, pales in comparison to some of my ‘war stories’ of being an unrepentant feminist criminal defence barrister of the ‘female persuasion’.
I am here. Hear me roar.