University of Calgary PRISM: University of Calgary's Digital Repository Graduate Studies The Vault: Electronic Theses and Dissertations 2014-12-05 Bench-Breakers? Women Judges in Prairie Canada 1916 - 1980 Jakobsen, Pernille Jakobsen, P. (2014). Bench-Breakers? Women Judges in Prairie Canada 1916 - 1980 (Unpublished doctoral thesis). University of Calgary, Calgary, AB. doi:10.11575/PRISM/25108 http://hdl.handle.net/11023/1956 doctoral thesis University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca i THE UNIVERSITY OF CALGARY Bench-Breakers? Women Judges in Prairie Canada 1916 – 1980 by Pernille Jakobsen A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE DOCTOR OF PHILOSOPHY CALGARY, ALBERTA NOVEMBER, 2014 © Pernille Jakobsen 2014 ii Abstract Between 1916 and 1980 a small number of women magistrates and judges adjudicated in courtrooms across the Prairie Provinces of Alberta, Saskatchewan, and Manitoba. Often they worked in “family court,” through its historic incarnations including juvenile courts, women’s courts, and domestic relations tribunals. The first of these women, practicing between 1916 and 1935, included magistrates Emily Murphy and Alice Jamieson in Alberta, and judge Jean Ethel MacLachlan in Saskatchewan. None of these women held law degrees or membership within the legal profession, but all three had a “motherly outlook.” Murphy and Jamieson’s expertise was derived from their leading roles in influential women’s organizations and connections to the suffrage and dower campaigns. MacLachlan’s authority developed from her remunerated work with the Children’s Aid Society, and she received significant support from the Regina Local Council of Women. They worked within quasi-judicial courts, associated with volunteer-based social welfare initiatives, appended on to, rather than integrated into, existing established legal institutions. During the 1930s, these Prairie women magistrates and judges lost their positions in the midst of economic and professional rearrangements. In the meanwhile, a vibrant women’s legal culture, assisted by developments in legal education and professionalism, emerged to provide the basis for a rebirth of women judges in the 1950s. The next cohort of Prairie women judges was appointed to the bench beginning in 1957 with Nellie McNichol Sanders. In common with their early-twentieth century precursors, the media often positioned women judges as “role mothers” by highlighting their maternal, rather than ii iii professional, suitability for the courtroom even though all women judges held law degrees and were members of provincial law societies. Illustrative of continued connections with the volunteer sector, these women judges pursued human rights and advocated the re-dressing of inequitable laws and customs for children, women, and other vulnerable groups including Aboriginal persons. At the same time, women judges’ individual perspectives suggest discord with the egalitarian goals of the late 1960s and early 1970s women’s movement, and reveal that not all women judges were feminist actors. In the final analysis, this dissertation uses an unconventional timeline to argue that Prairie women judges were part of a broader movement of change associated with continuities and changes in the women’s movement and in legal professionalism. Women judges worked within the prescriptions imposed by their times, contemporary legal codes, and society’s expectation of family courts. Their public work in the Prairie Provinces reveals that legal and social change was influenced by local, national, and international influences; change did not move uniformly from Ontario to the West. iii iv Acknowledgments Over the course of this project I have been the fortunate recipient of advice and support from many individuals and organizations. I have received financial support from the Faculty of Graduate Studies, the Department of History, and the Lillian A. Jones/Whyte Museum of the Canadian Rockies. I am extending a warm thank you to the Archives and Special Collections Department at the University of Saskatchewan for scanning the contents of all three Jean Ethel MacLachlan scrapbooks, and making them available, for limited use, online. I am also grateful to numerous archivists at the Glenbow Archives, the Provincial Archives of Alberta, the Saskatchewan Archives (Saskatoon), the University Archives and Special Collections at the University of Manitoba, and the Provincial Archives of Manitoba who unearthed unprocessed and partially processed records for my benefit. Chris Kotecki and Joan Sinclair of the Provincial Archives of Manitoba provided extremely organized and timely responses to my research requests. Brenda McCafferty at the Law Society of Alberta offered research support and encouragement as did lawyer and author Sandra Petersson. This project would not have been possible if not for the support of my supervisor Nancy Janovicek. I also owe many insights to Betsy Jameson. Thanks to my supervisory committee for providing valuable feedback. I am delighted to have been a part of an unreservedly supportive and friendly academic cohort including Amy McKinney, Gretchen Albers, Alexander Herd, and Shannon Murray. Lastly, I would never have completed this project without the love and support of my extended network of friends and my family. I could always count on long-distance advice and support from by sisters Signe and Melissa, and my brother Alexander. My parents Birte and Bent spent countless hours and days providing childcare, as well as physical and moral sustenance. My husband, John Esaiw, patiently encouraged me to persevere and put his own educational plans on hold to enable iv v me to finish mine. My children Jonah and Teah were, respectively, a toddler and newborn when I began my Ph.D., and have grown into delightfully empathetic and articulate children alongside this dissertation. I appreciate all of these gifts. v vi Dedication This dissertation is dedicated to my husband John and our children Jonah and Teah. vi vii TABLE OF CONTENTS Approval Page ……………………………………………………………………… i Abstract ……………………………………………….………..…………… ii Acknowledgements ……………………………………………..………………………. iv Dedication ………………………………………….…………………………. vi Table of Contents ……………………………………….…………………..………… vii INTRODUCTION: “Judg(ing) Women in the Canadian Prairie West” ……………….. 1 CHAPTER TWO: “Setting a Precedent for Women Judges”…………………………. 47 CHAPTER THREE: “’In Absentia:’ Fiscal Constraints, Professionalization, and Court Restructuring 1930 – 1950” ……………………………………..... 100 CHAPTER FOUR: “Prescribing Family Values during the 1950s and 1960s” ……….. 146 CHAPTER FIVE: “’Equitable Claims for All?’ Human Rights, Feminism, and Legal Professionalism” ………………………………………………….. 186 CHAPTER SIX: “’Reconciled to Family Court’”: 1970s Matrimonial Reform”......... 230 CONCLUSION: “’Bench-Breakers?’ The Legacy of Voluntarism and Women’s Judicial Place” ……………………………………………………… 273 BIBLIOGRAPHY: ………………………………………………………………………. 291 vii 1 1 Introduction: “Judg(ing) Women in the Canadian Prairie West” “A man with my qualifications would never settle for magistrate’s court. He would want a higher court and a higher salary.”1 Magistrate Mary Carter, Saskatoon In offering this direct summary of her professional qualifications and judicial status in a 1975 interview, family court magistrate Mary Carter clearly indicated that gendered tensions and hierarchies existed within the Canadian legal profession and judiciary. Carter’s statement was also political, in that she realistically assessed the career opportunities available to herself and her contemporaries, including Saskatchewan native Tillie Taylor, Manitoba judges Nellie Sanders, Mary Wawrykow and Myrna Bowman, and Alberta judge Marjorie Bowker, all of whom attained judicial appointments between 1957 and 1971. As did the first female magistrates appointed in Alberta in 1916, Emily Murphy and Alice Jamieson, and Jean Ethel MacLachlan, appointed in juvenile court judge in 1917 Saskatchewan, Carter and her cohort adjudicated primarily, but not exclusively, on family matters relating to women and children. Carter’s 1975 revelation coincided, and was informed in the context of the celebration of International Women’s Year by which time many reform-oriented women had spent decades bringing greater visibility to social and legal injustices.2 By 1980, at which point this study ends, some women’s efforts contributed to the first draft of the Canadian Charter of Rights and Freedoms which, after several rounds of feminist lobbying and discussion, would grant legal 1 Gail McConnell, “University Women,” ‘The Green & White’ The University of Saskatchewan Alumni Association Magazine (Winter 1975), 7. 2 Judy Rebick, Ten Thousand Roses: The Making of a Feminist Revolution (Toronto: Penguin, 2005). 2 equality to all Canadians, including on the basis of sex.3 Also, by 1980 most provinces had overhauled outdated matrimonial property legislation which had disadvantaged women across Canada, but as scholars argue, was uniquely contextualized in the Prairie west owing to a shared legal heritage, a vigorous early twentieth century dower campaign, and influential