Law Matters | Spring 2017



I was recently pleased to see that a good friend, Gillian Marriott, QC was appointed to the Court of Queen’s Bench, somewhat shortly into her tenure as President of the Law Society of Alberta. Upon learning of her appointment, the occasion gave me a moment to consider how the profession has changed over the last generation - where women lawyers are now common-place at the highest echelons of our profession.

And, at the same time, we now read that many law schools now report women comprising over 50% of their graduating classes. Well done legal profession, let’s all give ourselves a pat not the back. But wait…

During Editorial Committee discussions this past fall, while we were throwing around ideas for issue topics, the topic of gender equality arose. And after a brief discussion, it became very apparent that while overt sexism in our profession appears to be less and less obvious - there was a not-so-subtle and perhaps more insidious form of sexism continuing within our profession that seems to be getting “wall-papered over” by people who have become adapt at the lingo, but, perhaps, not the actual belief and practice of gender equality.

This issue speaks to that concern – namely, whether or not women are yet truly equal in a profession which professes to be the guardian of equality in our society. As the articles in this issue discuss, unfortunately, it appears we have more work yet to do.

This week, I was engaged in a challenging education session as a Law Society Adjudicator on the topic of “cultural competence.” And as part of that session, we watched a portion of a TEDx Talk by speaker Jay Smooth about how to have healthy discussions regarding race – and his comment on the issue of race struck me as relevant to the similar issue of gender equality. That our own individual biases are REAL and probably universal (sorry Twitterati) and that there is a danger when we deny that reality – that our effort to check our own biases is an never-ending work in progress:


There are many things in our day-to-day lives that lead us toward developing little pockets of prejudice, that lead us toward acting unkind to others, without having any intent to do so.

These are things that will just naturally develop in our day-to-day lives, so the problem with that all or nothing binary is it causes us to look at racism and prejudice as if they are akin to having tonsils. Like you either have tonsils, or you don’t, and if you’ve had your prejudice removed, you never need to consider it again. If someone says “I think you may have a little unconscious prejudice,” you say “No--my prejudice was removed in 2005! [Audience laughter] I went to see that movie Crash, it’s all good!”

But that’s not how these things work; when you go through your day to day lives there are all of these mass media and social stimuli as well as processes that we all have inside our brains that we’re not aware of, that cause us to build up little pockets of prejudice every day, just like plaque develops on our teeth. So we need to move away from the tonsils paradigm of race discourse toward the dental hygiene paradigm of race discourse. Basically, if I might just offer one piece of advice.

And in general I think we need to move away from the premise that being a good person is a fixed, immutable characteristic, and shift towards seeing being good as a practice, and it is a practice that we carry out by engaging with our imperfections. We need to shift from, we need to shift toward thinking of being a good person the same way we think of being a clean person. Being a clean person is something that you maintain and work on every day. We don’t assume that I’m a clean person therefore I don’t need to brush my teeth. And when someone suggests to us that we’ve got something stuck in our teeth, we don’t say “Wh-what do you mean? I have something stuck in my teeth? I’m a clean person!

The point, I think, is well taken. That we should guard against the notion that we are either “good” or “bad” as regards our own biases, but rather, like maintaining good dental hygiene, good cultural understanding requires ongoing work to clean out the stuff that otherwise might get “stuck” in the back of our mind.

It is with that perspective I would encourage you to read this issue. This is not a “finger wagging” sort of issue, I hope, implying that we, as a profession, are “bad” – but rather, it is an issue that says the effort to be fair to our colleagues – whether based upon gender or other characteristic, is always going to be a work in progress for all of us. Including your flawed editor. Good reading!

- Robert G. Harvie, QC