Claire L'Heureux-Dubé (born September 7, 1927) is a retired Canadian judge who served as a
puisne justice
A puisne judge or puisne justice (; from french: puisné or ; , 'since, later' + , 'born', i.e. 'junior') is a dated term for an ordinary judge or a judge of lesser rank of a particular court. Use
The term is used almost exclusively in common law ...
on the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
from 1987 to 2002. She was the first woman from
Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
and the second woman appointed to this position, after
Bertha Wilson
Bertha Wernham Wilson (September 18, 1923April 28, 2007) was a Canadian jurist and the first female puisne justice of the Supreme Court of Canada. Before her ascension to Canada's highest court, she was the first female associate and partner at ...
. Previously, she had been one of the first woman lawyers to handle divorce cases, and was the first woman appointed as a judge to the
Quebec Superior Court
The Superior Court of Quebec (french: Cour supérieure du Québec) is a superior trial court in the Province of Quebec, in Canada. It consists of 157 judges who are appointed by the federal government. Appeals from this court are taken to the Qu ...
and the
Quebec Court of Appeal
The Court of Appeal of Quebec (sometimes referred to as Quebec Court of Appeal or QCA) (in French: ''la Cour d'appel du Québec'') is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal.
History
The Court wa ...
.
During L'Heureux-Dubé's time on the country's top court, she earned a reputation as a steadfast feminist and supporter of minority rights. Because roughly 40 percent of the 254 judgements that she wrote were dissents, she became known as the court's "great dissenter".
Early life and career
L'Heureux-Dubé was born Claire L'Heureux in
Quebec City
Quebec City ( or ; french: Ville de Québec), officially Québec (), is the capital city of the Provinces and territories of Canada, Canadian province of Quebec. As of July 2021, the city had a population of 549,459, and the Communauté métrop ...
in 1927.
She was one of four girls raised by a mother who spent fifty years as a
quadriplegic
Tetraplegia, also known as quadriplegia, is defined as the dysfunction or loss of motor and/or sensory function in the cervical area of the spinal cord. A loss of motor function can present as either weakness or paralysis leading to partial or t ...
as a result of multiple sclerosis which developed when L'Heureux-Dubé was only nine. L'Heureux-Dubé attended the
Ursuline Monastery of Quebec City and worked at a
cod liver oil
Cod liver oil is a dietary supplement derived from liver of cod fish (Gadidae). As with most fish oils, it contains the omega-3 fatty acids eicosapentaenoic acid (EPA) and docosahexaenoic acid (DHA), and also vitamin A and vitamin D. Historic ...
plant in
Rimouski
Rimouski ( ) is a city in Quebec, Canada. Rimouski is located in the Bas-Saint-Laurent region, at the mouth of the Rimouski River. It has a population of 48,935 (as of 2021). Rimouski is the site of Université du Québec à Rimouski (UQAR), the C ...
, Quebec, but quit when she was nineteen to continue her education.
In 1951, she graduated
cum laude
Latin honors are a system of Latin phrases used in some colleges and universities to indicate the level of distinction with which an academic degree has been earned. The system is primarily used in the United States. It is also used in some Sou ...
from the law faculty of
Université Laval
Université Laval is a public research university in Quebec City, Quebec, Canada. The university was founded by royal charter issued by Queen Victoria in 1852, with roots in the founding of the Séminaire de Québec in 1663 by François de Montmo ...
, despite facing gender discrimination such as not being given scholarships that were awarded to men of similar financial means. She then entered private practice in Quebec. From 1952 until 1973, she worked at L'Heureux, Philippon, Garneau, Tourigny, St-Arnaud & Associates, and was one of the first woman lawyers to work with divorce cases in the province.
In February 1973, L'Heureux-Dubé was appointed as a judge onto the
Quebec Superior Court
The Superior Court of Quebec (french: Cour supérieure du Québec) is a superior trial court in the Province of Quebec, in Canada. It consists of 157 judges who are appointed by the federal government. Appeals from this court are taken to the Qu ...
, becoming its first woman judge. From 1973 to 1976, she led a federal commission studying immigration problems in the province of Quebec. In October 1979, she was elevated to the
Quebec Court of Appeal
The Court of Appeal of Quebec (sometimes referred to as Quebec Court of Appeal or QCA) (in French: ''la Cour d'appel du Québec'') is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal.
History
The Court wa ...
and was its first female judge. In 1981, she, along with future colleague
Rosalie Abella
Rosalie Silberman Abella (born July 1, 1946) is a Canadian jurist. In 2004, Abella was appointed to the Supreme Court of Canada, becoming the first Jewish woman and refugee to sit on the Canadian Supreme Court bench. She retired from the fede ...
, published ''Family Law: Dimensions of Justice,'' about
Canadian family law. After eight years and writing 1,200 judgements for the Quebec Court of Appeal, L'Heureux-Dubé was elevated to the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
by Prime Minister
Brian Mulroney
Martin Brian Mulroney ( ; born March 20, 1939) is a Canadian lawyer, businessman, and politician who served as the 18th prime minister of Canada from 1984 to 1993.
Born in the eastern Quebec city of Baie-Comeau, Mulroney studied political sci ...
in April 1987.
Supreme Court
L'Heureux-Dubé's elevation to the Supreme Court in 1987 made her the second woman to sit on the country's highest court, after
Bertha Wilson
Bertha Wernham Wilson (September 18, 1923April 28, 2007) was a Canadian jurist and the first female puisne justice of the Supreme Court of Canada. Before her ascension to Canada's highest court, she was the first female associate and partner at ...
. According to L'Heureux-Dubé, a fellow judge on the Supreme Court refused to speak to her for the first three months after her appointment before passing her a note saying he considered her to have passed her
probationary period
In a workplace setting, probation (or a probationary period) is a status given to new employees and trainees of a company, business, or organization. This status allows a supervisor, training official, or manager to evaluate the progress and sk ...
.
L'Heureux-Dubé is typically remembered as one of the most prolific dissenters of the Court. Her judicial view was atypical for her time and often clashed with the majority of the Court. Her writing style and her tendency to use
social science
Social science is one of the branches of science, devoted to the study of societies and the relationships among individuals within those societies. The term was formerly used to refer to the field of sociology, the original "science of soc ...
research in her reasons made for opinions that were often notable for their sheer length.
Among her more controversial decisions include her reasons in ''
Moge v Moge'', where she took a major departure from the practised standard of
judicial notice
Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well-known, or so authoritatively attested, that it cannot reasonably be doubted. This is done upon the ...
by allowing for a broad range of social studies data to be given judicial notice as a legislative fact. Another famous dissent was in ''
Canada (AG) v Mossop'', where she alone acknowledged that the meaning of "family" is not fixed and should be read purposively to adapt to the changing times and it should include same-sex couples.
In a style reminiscent of
Lord Denning
Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...
MR, in the case of ''
Willick v Willick'', she quoted a ''
dictum
In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning.
Legal writing
In United States legal ter ...
'' she made in an earlier judgment, with which she "most heartily" agreed.
In the 1994 case ''
Dagenais v Canadian Broadcasting Corp
''Dagenais v Canadian Broadcasting Corp'', 9943 S.C.R. 835 is the leading Supreme Court of Canada decision on publication bans and their relation to the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freed ...
'', L'Heureux-Dubé disagreed with the majority opinion written by
Chief Justice Lamer that there was no hierarchy of rights in Canada because Charter rights – freedom of speech and the right to a fair trial in this case – had to be balanced against each other. L'Heureux-Dubé dissented, saying that in addition to CBC lacking a valid right to appeal to the Supreme Court, when freedom of expression and the right to a fair trial cannot be simultaneously fully respected, the latter should temporarily prevail.
In 1998, L'Heureux-Dubé was named president of the
Geneva
Geneva ( ; french: Genève ) frp, Genèva ; german: link=no, Genf ; it, Ginevra ; rm, Genevra is the List of cities in Switzerland, second-most populous city in Switzerland (after Zürich) and the most populous city of Romandy, the French-speaki ...
-based
International Commission of Jurists
The International Commission of Jurists (ICJ) is an international human rights non-governmental organization. It is a standing group of 60 eminent jurists—including senior judges, attorneys and academics—who work to develop national and inte ...
.
In 1999, her concurring decision in ''
R v Ewanchuk
''R v Ewanchuk'', 9991 SCR 330 is a leading Supreme Court of Canada case concerning the defence of consent to a charge of sexual assault. The Court held that there was no defence of implied consent. The case is also notable for the controversy th ...
'' became the focus of a very public debate with
Justice McClung of
Alberta Court of Appeal
The Court of Appeal of Alberta (frequently referred to as Alberta Court of Appeal or ABCA) is a Canadian appellate court.
Jurisdiction and hierarchy within Canadian courts
The court is the highest in Alberta, Canada. It hears appeals from the ...
. Justice McClung had written the decision of the Alberta Court of Appeal, upholding the acquittal of an accused person in a sexual assault case. The Supreme Court overturned the acquittal and directed a re-trial. In her concurring opinion, written on behalf of herself and
Justice Gonthier, Justice L'Heureux-Dubé described his ruling as showing outdated and stereotypical thinking about sexual assault. In response, Justice McClung wrote a letter to the ''
National Post
The ''National Post'' is a Canadian English-language broadsheet newspaper available in several cities in central and western Canada. The paper is the flagship publication of Postmedia Network and is published Mondays through Saturdays, with ...
'' attacking L'Heureux-Dubé, describing her writing as overly personal and blaming her attitude for the rise in the suicide rate of Quebec men. The letter was controversial, and drew even more furor when it was pointed out that L'Heureux-Dubé's husband had committed suicide in 1978. A few months after the debate, L'Heureux-Dubé heard McClung had fallen ill, and wrote him a supportive letter, for which he thanked her and which she considered to be the end of the debate.
Later in 1999, L'Heureux-Dubé wrote the majority decision in ''
Baker v Canada (Minister of Citizenship and Immigration)
''Baker v Canada (Minister of Citizenship and Immigration)'', 999 999 or triple nine most often refers to:
* 999 (emergency telephone number), a telephone number for the emergency services in several countries
* 999 (number), an integer
* AD 999, a year
* 999 BC, a year
Books
* ''999'' (anthology) or ''999: T ...
2 SCR 817 is a leading Canadian administrative law decision of the Supreme Court of Canada. The Court provided guidance on the standard of judicial review of administrative decisi ...
'', holding that
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, even when its provisions were unincorporated into Canadian law, could still be a source from which judges could find the values and principles behind Canadian legislation. L'Heureux-Dubé followed the decision in ''Baker'' with her majority decision in the 2001 case of ''
Hudson v Spraytech & ChemLawn'', holding that the
precautionary principle
The precautionary principle (or precautionary approach) is a broad epistemological, philosophical and legal approach to innovations with potential for causing harm when extensive scientific knowledge on the matter is lacking. It emphasizes caut ...
should be seen as part of
international customary law
Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...
. She then ruled that the municipal government of
Hudson, Quebec
Hudson is an off-island suburb of Montreal, with a population of 5,135 ( 2011 Census). It is located on the south-west bank of the lower Ottawa River, in Vaudreuil-Soulanges Regional County Municipality. Situated about west of downtown Montreal, ...
, was justified in banning Spraytech's pesticides and was not acting ''
ultra vires
('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'' the "general welfare" powers delegated to it by the Quebec provincial government.
At the time of her retirement on July 1, 2002, L'Heureux-Dubé was the most senior judge on the court in terms of time served. During her tenure on the court, she was regarded as perhaps its most controversial member, and as someone who usually only slept four hours a day so she could focus on her work.
Critics labelled her a feminist, equal-rights ideologue because of her support for the
battered woman defense
Battered woman syndrome (BWS) is a pattern of signs and symptoms displayed by a woman who has suffered persistent intimate partner violence: whether psychological, physical, or sexual, from her male partner. It is classified in the ICD-9 (code ) ...
, tax deductions for mothers in the workforce, expansive provisions for
spousal support
Alimony, also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, Canada, New Zealand), spousal support (U.S., Canada) and spouse maintenance (Australia), is a legal obligation on a person to provide financial supp ...
, and the protection of sexual-assault complainants' privacy. During her time on the court, she was a proponent of equality rights of women, immigrants,
LGBT
' is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.
The LGBT term is a ...
people, and other minority groups.
L'Heureux-Dubé heard more than 1200 Supreme Court cases, wrote 254 judgments, dissenting from the majority in about 40 percent of them, which earned her the label of the "great dissenter".
Post-Supreme Court activities
Shortly after L'Heureux-Dubé's July 2002 retirement from the Supreme Court at the age of 74, she took a Judge in Residence position with Université Laval University in Quebec City.
L'Heureux-Dubé also served as the president of La Maison de justice de Québec, a pilot project to improve access to justice in Quebec City which operated from 2004 until its 2006 closure after it failed to become financially self-sufficient. It sought to serve people who made too much to qualify for
legal aid
Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to co ...
, but not enough to afford a lawyer by offering free services provided by mostly retired legal professionals. L'Heureux-Dubé had been chosen to run the pilot project's administrative aspects and recruitment effort because of her devotion to social justice and her legal connections.
In a 2013 report for the
National Assembly of Quebec
The National Assembly of Quebec (officially in french: link=no, Assemblée nationale du Québec) is the legislative body of the province of Quebec in Canada. Legislators are called MNAs (Members of the National Assembly; french: link=no, déput ...
, L'Heureux-Dubé led a committee that recommended that
Members of the National Assembly should give up benefits such as a
golden parachute
A golden parachute is an agreement between a company and an employee (usually an upper executive) specifying that the employee will receive certain significant benefits if employment is terminated. These may include severance pay, cash bonuses, s ...
severance package in exchange for a pay raise from $88,000 to $136,000. The report proposed that this exchange of benefits for a payroll increase would be "cost neutral". L'Heureux-Dubé's report also proposed that transparency in expenditures be increased by forcing all members of the assembly to disclose their benefits, allowances, and indemnities to the public. As of December 2015, the pay raise was still not implemented, though the transition bonus given to MNAs who leave their office mid-term for any reason had been removed.
In February 2014, L'Heureux-Dubé spoke in support of the proposed
Quebec Charter of Values
The Charter of Quebec Values () was Bill 60 in the Canadian province of Quebec, introduced by the governing Parti Québécois in 2013 under Premier Pauline Marois, trying to legislate the Quebec controversy on reasonable accommodation. The PQ cab ...
during public hearings in the National Assembly. She argued that it did not infringe on human rights and was an opportunity to make Quebec a secular society. She also believed that it would withstand a constitutional challenge, saying that women's right to equality trumped the right to wear religious clothing, which was not the same right as freedom of religion.
She had earlier indicated in a 2013
Radio Canada
The Canadian Broadcasting Corporation (french: Société Radio-Canada), branded as CBC/Radio-Canada, is a Canadian public broadcaster for both radio and television. It is a federal Crown corporation that receives funding from the government ...
interview that fundamental rights such as the right to life and equality should not be abrogated by other civil liberties which could be "reduced" in a "free and democratic society". In response to email questions from ''
The Globe and Mail
''The Globe and Mail'' is a Canadian newspaper printed in five cities in western and central Canada. With a weekly readership of approximately 2 million in 2015, it is Canada's most widely read newspaper on weekdays and Saturdays, although it ...
'', L'Heureux-Dubé also cited the thesis in Israeli judge and legal theorist
Aharon Barak
Aharon Barak ( he, אהרן ברק; born Erik Brick, 16 September 1936) is an Israeli lawyer and jurist who served as President of the Supreme Court of Israel from 1995 to 2006. Prior to this, Barak served as a Justice of the Supreme Court of I ...
's book ''Proportionality''
that rights have to be given importance based on society's values.
Personal life and honours
L'Heureux-Dubé married Arthur Dubé in 1957 and gave birth to a son and a daughter. Her husband died of suicide in 1978.
Her son died in 1994; her daughter became a lawyer.
L'Heureux-Dubé considered her judicial work as a refuge for the pain in her personal life by allowing her to compartmentalize her life.
L'Heureux-Dubé was appointed
Queen's Counsel
In the United Kingdom and in some Commonwealth of Nations, Commonwealth countries, a King's Counsel (Post-nominal letters, post-nominal initials KC) during the reign of a king, or Queen's Counsel (post-nominal initials QC) during the reign of ...
by the Province of Quebec in 1969. She was made a Companion of the
Order of Canada
The Order of Canada (french: Ordre du Canada; abbreviated as OC) is a Canadian state order and the second-highest honour for merit in the system of orders, decorations, and medals of Canada, after the Order of Merit.
To coincide with the ...
in 2003.
In 2004, she was made a Grand Officer of the
National Order of Quebec
The National Order of Quebec, termed officially in French as ''l'Ordre national du Québec'', and in English abbreviation as the Order of Quebec, is an order of merit in the Canadian province of Quebec. Instituted in 1984 when Lieutenant Gove ...
, in recognition of her legal career and her contributions to equality for marginalized communities in both Quebec and Canada.
See also
*
Reasons of the Supreme Court of Canada by Justice L'Heureux-Dubé
References
External links
*
{{DEFAULTSORT:L'Heureux-Dube, Claire
Canadian King's Counsel
Justices of the Supreme Court of Canada
Grand Officers of the National Order of Quebec
Companions of the Order of Canada
People from Quebec City
French Quebecers
1927 births
Living people
Université Laval alumni
Canadian women judges
Université Laval Faculté de droit alumni