Women in Law, Judicial Education, and Rising Tuition: An Interview with the Honourable Elizabeth M. Stewart

Lily Hassall (2L) & Chloe Magee (2L)

We were pleased to have the Honourable Elizabeth M. Stewart, judge at the Ontario Superior Court of Justice, as part of this year’s panel of judges for U of T’s first ever all-women Grand Moot. She was generous enough to chat with us about her time as a student at U of T Law and how the profession has changed over the years.

Chloe Magee: My favourite line in your biography for U of T is “Somehow, in between going to classes and to parties and writing exams and drinking draft beer at the Embassy Tavern and forging friendships at the law school that would last a lifetime, we were turned into trailblazers.” How conscious were you of the historic importance of your cohort of law students?

Justice Elizabeth Stewart: I think we had a sense that we were doing something in larger numbers than women had done before. We were what you might call a critical massnot enough to make any kind of majority, but enough to make a significant impact.

Lily Hassall: You’ve described how, while you were pursuing your JD, some shake-ups occurred, both at the law school and in the legal world beyond. Can you take us back to that time and describe some of the big issues in each of those realms?

ES: I think that one of the major events that happened at the law school when I was in my first year was the big confrontation with the third-year class over their graduating party, or their “stag party.” Word got around that one of the party traditions was to have a stripper present, often in judicial robes. Many of my classmates got quite up in arms about that and there was some tearing down of posters that took place, big arguments about freedom of speech, and extreme positions being taken.

I think it was a bit of a shock for the men in third year to have to deal with these young upstarts. Many of the upstarts were women, but many of them were men, too. I think there were a lot of men in the first year class who felt quite outragedin some cases, more outraged than the womenthat that kind of thing would be permitted to happen within the law school. Now it wasn’t a law school event, the people who organized the party did so on their own time and on their own dime, but it felt like a law school event.  

In the end, they went ahead and had it, but I think that was the last time it ever took place, and I think a lot of the guys who were involved started reflecting on whether or not it was an appropriate or good thing to do.

Another event I remember was forming the Law Students Action Committee, LSAC. Our purpose was just to talk about things and then maybe act once in awhileI think there was a lot more talking than acting. But one thing we did do was participate on the picket line with a strike that was taking place at an artistic woodwork factory. Most of the employees were immigrant women who were poorly paid. We weren’t tremendously well informed about the labour issues. I think we just wanted to lend our support, so we went out to support them, and one of my classmates got arrested and charged with something.

One thing that I remember was the support of then-dean Martin Friedland. He certainly wrote a letter of support andmaybe this was an urban legend, but he might have gone to court to take the stand and testify as a character witness.

But remember, this was 1974, and there were a lot of things happening in the world at this time and a lot happening on U of T campus. It was very much in the era of student activism, and I had the sense that Dean Friedland enjoyed thatI think he enjoyed the stimulation. He certainly didn’t agree with us on many things, but I think he liked being challenged.

CM: Your law school class was composed of over twenty percent women, which was revolutionary at the time. Did you and your peers encounter any obstacles as a result of your gender?

ES: Well, I’m sure that we were all attuned to that issue, but I never had any personal experiences of feeling discriminated against. I think there was a sense that there was a preference for menthat the men were automatically viewed as more likely to become young lawyersbut I don’t think there was anything really horrible that I can point to. I think all in all, most of us felt very privileged to be there.

Of course, there weren’t any women on the faculty. Maybe there was one, Mary Eberts, but I don’t think she joined the faculty until my second or third year. So the faculty was very male-dominated, but most of themnot all of them, but most of themwere quite progressive thinkers and they weren’t tuned out to issues of gender.

CM: In 2010–11, you were a member of the Chief Justice’s Education Committee at the Superior Court. How has judicial education changed during your time on the bench, and do you think more reform is necessary?

ES: Well, you wouldn’t believe the amount of opportunities that we have for judicial education. I think maybe it could be said that we could do a better job of communicating to the public just how much education we receive.

When people are appointed, there are two three-day immersion seminars on the areas that we are most likely to see. There’s also an organization called the National Judicial Institute, and they organize programs that we can attend and there’s a reasonably generous budget to permit people from across the country to attend these seminarsso we have the opportunity not only to attend the formal programs but also to meet our colleagues from across Canada, which, in and of itself, can be pretty educational.

There are also other organizations like the Canadian Institute for the Administration of Justice, which puts on special seminars, and we have, in Ontario, two mandatory court-wide seminars, one in November, one in May. Those are three days long and they usually deal with current topics and issues that are ripped from headlines. They bring in outside senior lawyers and, occasionally, social science professors and other experts.

So there is a great deal of education. I know that this issue has been getting attention lately, and I know that the Canadian Judicial Council, which is responsible for overseeing judicial education, is anxious to make sure that we’re given every opportunity to learn.

CM: Would you say the amount of judicial education has changed at all since you’ve been on the bench?

ES: I remember being really impressed when I was first appointed by how much education there was. And there still is. The topics shift depending on what’s happening in the world. But I think that those who are interested in developing have a great deal of opportunity to do so.

Also, I am a member of an organization called the International Association of Women Judges. There is a Canadian chapter which is very active, and they put on programs in Canada that are available to members and non-members. Some of the male members of my court have attended. And you can imagine that these sessions do more typically deal with some of the areas that have been talked about in the press as being areas that people need some enlightenment on.

LH: Continuing to think about education, how do you think the barriers to accessing the legal profession and legal education in general have changed since you were a student here?

ES: The one thing that I would say is that tuition is a lot higher. That I know. When I enrolled, I’m guessing that it was in the hundreds of dollarsit was maybe about six hundred dollars per year. Even controlling for inflation, it was cheaper to go to law school back then.

Whenever we have a student reunionwhich we do, every five yearsthe topic of rising tuition is often talked about at the cocktail reception. There are many people who are not in agreement with it.

CM: Do you hear arguments in favour of higher tuition at these cocktail receptions?

ES: Well, usually they’re from representatives of the law school. Many of the people there who are from large law firms, earning good salaries, might say that tuition is too high. But you’ll also hear from people who have gone to work for government, not-for-profits, or who work in less remunerative areas of practice. And they’ll often say, if tuition had been like that back in the day, “I never would have been able to go,” or, “I never would have thought to go.”

To be faced with that kind of tuition, and not being able to pay for it other than by assuming a great deal of debt with no real guarantee of any job at the end of the three yearsthat’s a real leap of faith. On the other hand, I recognize that at a place like U of T Law, I imagine most of the students would be highly sought after by potential employers. It is an excellent law school.

LH: Beyond U of T tuition, there has been an overall rise in tuition for law schools across Canada. Do you think this has implications for the legal profession in general? Do you see the body of the legal profession changing?

ES: The sense I get is that the student bodies in the law schools now are more diversea lot more so than when I was there. Whether they are diverse in terms of economic backgrounds, I’m not sure. I would hope that is the case. I would hope that there is a lot of financial assistance available. And if there isn’t, there should be. I think one of the most important characteristics of a good lawyer, and a good judge, is life experience.

LH: Speaking of being a judge, have you ever felt torn between a personal commitment to women’s rights and your professional commitment to a legal framework that, while obviously changing rapidly, sometimes lags behind society’s changing notions of gender?

ES: I think that there is a process that you go through, when you start working, of becoming a problem-solver. This is especially true if you’re doing litigation, which is the case for many of the people who seek out judicial appointments. By the time you are appointed, you still have your views and your ideals, but they’ve been buffeted about quite a bit by experience. You’ve seen cases in which the person who at first blush you would have rooted for turns out to be a complete liar. The process makes you less ideological than you might have been going in.

Having said that, you do try to hang on to a sense of what is right. Maybe that’s one of the nice things about being a judge: that, although, as a trial judge, you’re applying the law, there is a lot of room to permit the judge to do what the judge thinks is right, fair, and reasonable. You don’t have quite that much of a privilege when you’re acting as an advocate. You can maintain ethics and you can try to do what is right, and you can choose to act for certain people and causes, but most counsel like to work both sides of the street. This is because it sharpens your arsenal of arguments to know intimately what the arguments on the other side might bemakes it a little more intellectually sound.

CM: Is there a case you’ve been involved with as a litigator or as a judge that you’re especially proud of?

ES: As a judge, all the cases that come before you are important cases. Sometimes there are more interesting issues than others.

In practice, there are two areas of which I’m particularly proud. First, I did a lot of work for York University and I got involved with the Canadian Association of University Solicitors as a result. That was a very interesting part of my professional life as a litigator because it was during a time when universities were changing and growing, and all kinds of issues were coming up that seemed straight out of left field. It was wonderful to be working with people who were committed to education but still trying to run an organization in some kind of business-like way.

When I was in practice I also did a lot of defence work for physicians. I got some insight into how the medical profession works, and into the ethical and practice issues that arise. I represented doctors in medical negligence cases, and represented some of them at the College of Physicians and Surgeons. That was a great experience and a wonderful opportunity for any young lawyer.

CM: Do you have any advice for law students today?

ES: I would give law students the same advice that I give to high school students who come to visit the courtrooms. I would say, “Do what you love. Follow whatever area of interest really excites you.” If you’re doing something you love, you’ll do it well. Everything will go from there. It is a mistake to try to figure out where you’ll make the most money, or what will be easiest. Instead, although it sounds like a hackneyed cliché, follow your passion.