Symposium Honoring Justice Ruth Bader Ginsburg

Abstract

I must, at outset, disclose my multiple partiality ... I have been an unconditional admirer of Justice Ginsburg and her jurisprudence since she was appointed to Supreme Court of United States Since older, a fortiori our respective backgrounds as early career women in law offer a lot of similarity, and I was myself second woman to sit on Supreme Court of Canada Further disclosure: Justice Ginsburg and I share a passion: opera and a fate (or is it a curse?)--dissents. Her vision of equality and, in particular, gender justice has inspired many. I am one of those Gender justice is part and parcel of much larger issue: that of equality. A discussion about equality must start with question: why is equality so important both for law and people? The answer for me is simple: inequality is injustice, it is negation of human dignity My own definition of gender equality is extraordinary notion that women are human beings entitled to same respect, consideration and opportunities as other members of society That definition applies, mutatis mutandis, to all those subject to discrimination by reason of their ethnicity, sexual orientation, religion, social status, etc. (1) Justice Brennan said it this way: Human relations are extremely complex and the law is there to serve ... realization of man's ends, ultimate and 'immediate ... realization of human dignity through full opportunity and eradication of bias.' (2) Full opportunity for women is a theme that resonates more than once in Justice Ginsburg's jurisprudence. (3) It does resonate also in Canadian Supreme Court jurisprudence based on Section 15 of Charter of Rights and Freedoms, which does not parallel vague and laconic language of Fourteenth Amendment of United States Constitution guaranteeing all persons right to protection under law. Instead, it is clearly elicited in Section 15 of Canadian Charter of Rights and Freedoms that: 15: (1) Every individual is before and under law and has fight to protection and benefit of law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. (4) I must add that Canadian women were obviously sensitive to language of equality provisions of Charter and lobbied for broader language, for distinctions based on sex to be subject to a stringent review, and for inclusion of a general statement of equality between men and women. Their proposed wording was accepted and now forms part of Section 15(1) of Charter. (5) Contrary to jurisprudence under Fourteenth Amendment that had developed separate but equal standard since Plessy v. Ferguson, (6) Supreme Court of Canada rejected this approach and opted at outset for a large and purposive interpretation of Charter, adopting Lord Sankey's metaphor in Person's Case (7) of a constitution as a living tree, (8) which Court reiterated as recently as December 22, 2011. (9) I am aware that this metaphor does not make for unanimity among justices of United States Supreme Court. Justice Breyer and Aharon Barak's controversial views on role of judge in a democracy, (10) as well as their references to foreign jurisprudence, (11) are not widely accepted (Justices Ginsburg and Breyer excepted). Canada has readily embraced such views without any controversy. Many constitutions, particularly those of more recent vintage such as those of India, South Africa, and Canada, have used as their model framework set out in Universal Declaration (12) and international human rights conventions, (13) rather than civil liberties model found in United States Bill of Rights. The Court, in its first decision under Section 15 of Charter in Andrews v. …