Insight

Canadian Women in the Legal Profession: From Non-‘Persons’ to Chief Justices

We take an in-depth look at the challenges and optimistic future of women in the Canadian legal sector.

Canadian Women in the Legal Profession
SC

Sara Collin

August 24, 2022 03:30 PM

In the prologue to former Chief Justice of the Supreme Court of Canada Beverley McLachlin’s 2019 memoir, Truth Be Told, she recounts her first encounter with the late former United States Supreme Court Justice Ruth Bader Ginsburg (a.k.a. the “Notorious RBG”).

When the two women met, Ginsburg pointedly asked: “What is the history of women’s legal rights in Canada?” McLachlin paused before replying, “It started with the Famous Five and the Persons Case.”

What About “Persons”?

The colloquially known Persons Case, as most first year law students soon discover, refers to the 1929 decision that recognized that women were, in fact, “persons” under Canada’s constitution and thus capable of holding public office.

The constitutional challenge arose after Emily Murphy, a member of the so-called Famous Five, was appointed as a city magistrate in Alberta in 1919. On her first day on the job, a male lawyer reportedly questioned her ability to preside over the courtroom, arguing that she was not a “person” under the law and could therefore not sit as a judge.

Exactly 70 years after the Famous Five began their fight to be recognized as “persons”, McLachlin was sworn in as the third female justice of the Supreme Court of Canada. In 2000, she was the first woman to be appointed Chief Justice of Canada.

And while Canada’s first female lawyer, Clara Brett Martin, was admitted to the Law Society of Upper Canada in 1897, today it is estimated that nearly half of all Canadian lawyers are women.

However, women’s representational equality in the legal profession belies numerous remaining inequities and challenges.

What About Pay Equity?

For instance, pay equity remains a pressing issue in the legal profession. According to the most recent data, Canadian women earned 93% of men’s salaries across all stages of their careers among all types of law firms and, in the largest private firms, women earned 91% of men’s salaries.

Marie-Claude Landry, a former Quebec lawyer and current Chief Commissioner of the Canadian Human Rights Commission, commented on the issue, stating: “Pay inequity is first and foremost a difficult issue and it’s multi-factorial. We have multiple explanations, many of which fall into one of two categories that economists refer to as the ‘glass ceiling’ or the ‘sticky floor’.”

Canada Women In The Law

Erin Cowling, an Ontario lawyer who left big law to eventually found her own company of freelance lawyers, Flex Legal, opined that a lack of pay transparency, along with inequities in discretionary payments such as bonuses, exacerbate the issue. She said, “I think it’s getting better but I think pay transparency would really help. If I knew my male colleague of the same year or junior to me was making more money, then for sure I’d go in and negotiate a better salary. But if I don’t know what other people are making then how do I know I’m not making as much?”

What About the “Exodus”?

In addition to the issue of pay equity, statistics point towards what has been called the “exodus” of women from the legal profession. The Canadian Bar Association has cited three main reasons why women leave law: discrimination, carrying a heavier load of childcare and domestic duties, and a lack of work-life balance.

Kristen Greer, who is Best Lawyers’ senior research manager, notes that a large number of female associates who start out in firms tend to not matriculate into senior roles. In fact, according to the Law Society of Ontario’s 2018 annual report, about 12.4% of lawyers in Ontario were male law firm partners, compared to only 4.3% of female partners.

Landry, who left her position as a lawyer at a mid-size firm to start her own practice prior to joining the Canadian Human Rights Commission, identified with some of these issues. She observed, “I had to fight all my life to prove that I was as good as men.”

For her part, Cowling stated, “The exodus of women, or the pushing out of women from law, is kind of a chicken or egg scenario. Do women leave because we don’t want to put up with the crap anymore, or is it the firms who are kind of expecting the women to leave so that’s why the crap starts?”

Cowling also expressed frustration at narratives that imply that women leave law because they can’t “hack it”. In her view, the issue needs to be reframed, stating, “It’s not a problem that women need to fix, that we need to fit into this archaic model. I think the law firm model needs to change.”

What About Diversity and Intersectionality?

The challenges women face, however, are far from homogeneous. As noted by both Landry and Cowling, the issue must be viewed through an intersectional lens. Referring to her blog series, Women Leading in Law, in which she has interviewed many female lawyers about their experiences, Cowling observed, “Everyone in that series had different challenges than, let’s say, a white male. I wouldn’t say that all were child-bearing related or work-balance related, a lot was discrimination and unfair treatment, either from their clients or the law firms.”

Landry expanded on the issue, stating, “The intersectional lens is really important. We know as an example that racialized women will face challenges more than non-racialized women. We know that women with disabilities will face more challenges than a person with no disability. Where we need to be careful is not being trapped into thinking that there is just one answer. It’s a multi-factored thing and we need to address all of that. Men and women and everyone need to be involved, from leaders to managers to CEOs.”

Greer echoed this observation, opining that the issues faced by female lawyers cannot be solved in isolation.

What About Good News?

However, both Landry and Cowling also expressed an optimistic view of things, with Cowling stating, “With technology, and now with the pandemic, we can all work from home and set up our own firms. It’s pretty easy to have a little more control over your legal career now than maybe previously. So I think there are more opportunities now as well.”

For her part, Landry observed, “I’ve seen some positive conversations in organizations and big firms about how they will retain [women]. Because it’s one thing to hire a woman, but the challenge is often to make sure that she will stay in the firm, and she will have the same opportunity to thrive as a male associate. We are seeing positive change because I think that people understand that if women have the same opportunity as men, then the economy, society and the country will be better.”

Greer echoed this sentiment, stating that her research over the past three to five years has shown a growing desire for diversity in law, noting “more of an awareness of a need to adapt better” and that law firms are looking around and observing “wait a minute, [the current model] isn’t sustainable or appropriate”.

Finally, while Landry expressed hope that the existing culture of law will change to better adapt to the needs and rights of women, Cowling observed that women are simply forging their own paths, stating, “I think women are doing their own thing now, we’re doing our own networking, we’re doing our own stuff.”

Sara Collin is a Quebec-based lawyer, specializing in legal writing, editing, research, and translation throughout Canada.

Related Articles

The Inaugural Best Lawyers: Ones to Watch in Canada


by Justin Smulison

Best Lawyers: Ones to Watch in Canada's inaugural edition is here. We talk with Kristen Greer, Best Lawyers Senior Research Manager, on the prestige of these awards.

Best Lawyers: Ones to Watch in Canada 2022

Memphis Bar Gets First Black Female President


by Anissa Cordova

Best Lawyers is celebrating listed lawyer Tannera George Gibson who has become the first ever black female president of the Memphis Bar Association.

First Black Female President for Memphis Bar

The 2021 "Law Firm of the Year" Awards in Canada


by Best Lawyers

We are excited to announce the recipients of the 2021 "Law Firm of the Year" awards in Canada.

2021 Law Firm of the Year Awards in Canada

Broken Glass


by BAL

BAL's commitment to equality in the workplace.

Law Firm Profile: BAL

The Future of Litigation Is Changing for Female Solicitors in the U.K.


by Catherine Baksi

The support of entire law firms, organizations and senior counsel members will be the key to encouraging female solicitors and positive change in the industry.

Changing Litigation for UK Female Solicitors

Announcing the 7th Annual Women in the Law Publication


by Best Lawyers

The 7th Annual Women in the Law publication is a celebration of all the female legal talent across the country, honoring every woman listed in The Best Lawyers in America and Best Lawyers: Ones to Watch in America.

Honoring Female Lawyers in the United States

We Are Women, We Are Fearless


by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

Canada “Lawyer of the Year” 2022


by Best Lawyers

Richard Vachon is honored as 2022 "Lawyer of the Year" in Montréal, Canada for Defamation and Media Law.

Canada “Lawyer of the Year” 2022

Announcing the 2022 Canada's Best Lawyers Publication


by Best Lawyers

Featuring the top legal talent in Canada.

2022 Canada's Best Lawyers Publication

Washington D.C. 2022 "Lawyer of the Year"


by Best Lawyers and Best Lawyers

Subhashini Bollini is honored as 2022 "Lawyer of the Year" in Civil Rights Law for Washington, D.C.

Washington D.C. 2022 Lawyer of the Year

The 2021 Best Lawyers in Canada


by Best Lawyers

Featuring the top legal talent in Canada.

Best Lawyers Canada 2021 Homepage Image

What Are Examinations for Discovery


by Salvatore Grillo

This article explores the importance of an examination for discovery in civil lawsuits.

Illuminated lightbulb in a maze

Best Lawyers Through the Ages: Our past. Our today. Our future.


by Rachel Shrewsbury

Best Lawyers is celebrating its 29th edition for 2023 continuing to be the original, trusted source for legal awards.

Skyscrapers against evening sky with water

New Sheriff in Town on ESG


by Patricia Brown Holmes

Various regulatory agencies within the Biden Administration are stepping up enforcement of corporate malfeasance in the ever-trendy ESG space.

ESG Enforcement in the Corporate Environment

Follow the Money


by Rachel F. Sifuentes

Women are the future of fintech—but in the here and now, they’re still being underserved in an industry otherwise marked by explosive growth. Here’s why that must change.

Women and the Future of Fintech

Privacy Practice


by Casey Waughn

Data protection is all the rage among tech companies and state, national (and even transnational) governments alike. Is it a passing fad or here to stay? And how should businesses and groups of all sizes handle compliance with a blizzard of new laws?

Data Protection Prompt New Privacy Laws

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Could Reign Supreme End with the Queen?


by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

IN PARTNERSHIP

2022: Another Banner Year


by John Fields

Block O’Toole & Murphy continues to secure some of New York’s highest results for personal injury matters.

Three men in business suits standing in office

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Thirteen Years of Excellence


by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Caffeine Overload and DUI Tests


by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing The Best Lawyers in Australia™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing The Best Lawyers in Germany™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes