The Martlet

“I’ll be a post-feminist in a post-patriarchy” reads the bumper sticker positioned top centre on one UVic professor’s filing cabinet.

It’s how you’d picture a law professor’s office: a legal dictionary sits handy near the computer, there are more bookshelves than floor space and the air smells of legal tradition. But in this office, the thinking is far from traditional.

The woman at the desk, glasses atop her head, fits right in — a tidy face and sharp eyes stare back. A feminist legal theorist, she studies attempted legal solutions to problems of the inequality of women. Professor Hester Lessard has been teaching law at UVic for 20 years now.

Her students give her credit for being a pioneering catalyst for change in the legal faculty, but Lessard says she’s mostly just been part of new legal viewpoints ushered in by the introduction of the Charter of Rights and Freedoms.

“I went to law school right at the point at which most of the Charter came into force,” she said.

Prior to 1982, the Canadian Constitution was British legal property, meaning that Canada couldn’t do things like make constitutional amendments without British formal approval. Political will for constitutional changes grew after Canada’s 1967 centennial, including the idea of patriating the constitution, which removed the need for British approval, and adding a safeguard of rights.

Fifteen years later, a Liberal government under Pierre Trudeau oversaw the patriation of the Canadian Constitution. Adding rights to the legal freedoms set forth was a pet project of Trudeau’s. It was also a defining moment for Canada.

Lessard said Section 15, which deals with equality rights, was similarly defining for the Canadian women’s movement. She graduated from her three-year LL.B. at Dalhousie in 1985, when the delayed equality provision came into force. There was a lot of interest in exploring the Charter when she was in school, she said.

“As a student, I did work on what might be the perils of articulating feminist political claims in the language of equality rights,” Lessard said. “At that moment the Charter of Rights was a huge unknown.”

Since 1985, the discourse around rights has greatly changed — and Section 15 has fulfilled some of its perils.

“Sec 15 is pretty problematic, and you would think it would be the go-to section [for rights cases],” said Patricia Weber, a student of Lessard.

For the first few years of its existence, Section 15 was the go-to section for rights cases. Now, it’s rarely used. A recent exception was the debate around legalizing gay marriage. Section 15 was invoked there because the argument presented was written in the legal language of equality rights.

“The fact that there are Constitutional equality rights seems to promise a lot, and herald the beginning of a new era, but actually in some ways it has made it harder [for the feminist movement],” said Lessard, who calls rights legislation “double-edged.”

What makes Section 15 problematic is the fact that legal proceedings are shaped by precedent — that which has has happened before in similiar cases. This limits the potential outcomes of new cases.

On the flip side, Lessard said Section 15 became a rallying point for the feminist movement around the idea that sex equality rights were entrenched in the law.

“But at the same time it tended to sort of capture a lot of the slim resources that the women’s movement has in terms of political struggle,” she said.

Lessard also noted that while the courts aren’t always the most effective places for rights struggles, the legal arena is sometimes one of the few places where the gladiator of civil rights can match up to the lion of the state.

“I was hired here in 1989, and specifically one of the objectives in hiring me was to get someone on faculty to teach feminist legal theory,” said Lessard. “And I think that was typical at that moment.”

Lessard said the shift in hiring probably had something to do with an increased number of women attending law school: for a few years, she said more than half of law students were women. Today, the number has fallen back to about half. The result: a change in the climates of law schools and legal work.

“That doesn’t mean that gender issues and discussing gender issues is any less polarizing, but it does mean that in a subtle kind of intangible way the climate around discussing those issues changes,” she said.

The climate change opened up discourse on issues such as family law, she said.

Weber said she and other students appreciate the presence of Lessard’s non-mainstream viewpoint in the department to contrast what other professors teach.

“We have a couple professors who always somehow find a way to bring in regular black-letter law, just sort of the standard stuff, and present it differently, with a feminist or against a hetero-normative framework,” she said.

Although the question of rights in Canadian law is an old one, it’s more than relevant today, said Weber. She’s about to leave school and start a job at Pivot Legal in Vancouver.

She said her view of law wouldn’t be the same without an introduction to alternative perspectives on law.

“Having a school that shows you that there are other possibilities for reading [law] or other effects [from the law or ruling] which you may not be taking into account ... before you go out in the world is so necessary,” she said. “And I feel like this is the really great stuff and where the [legal] change is going to come.”