IFLS Profile: Prof. Daphne Gilbert, U Ottawa

This is a new semi-regular IFLS feature which will profile Canadian legal feminists. I got the idea when I was reading the Supreme Court of Canada’s latest section 15 (constitutional equality) decision.  Daphne’s quite critical work is cited twice! How did she do it? I wanted to know. So I sent her a set of questions (developed with my colleague Kate Sutherland) and here’s the result! Enjoy. I think we can learn a lot by learning some of what’s behind the scholarship, how it happens, and how we connect our scholarship with other aspects of our feminist identities.  I hope these features help us get to know each other, even though we’re separated by some pretty fearsome distances.

In this installment,Daphne tells us who we should be reading, what she should be reading, and lets us in on what co authoring with Diana Majury is like.   Next up, U Vic’s Maneesha Deckha.

What’s on your desk?

On my desk [at home] as I answer your questions (in no particular order and suggesting no order at all):  A cup of chocolate-mint tea, photos of my kids, my iPhone binging away with texts and emails (not exactly a distraction-free zone!), a pile of clean soccer clothes to put back in the soccer backpack, a birthday card I am overdue at writing (just like all of my other overdue deadlines!), a football that needs to be pumped up for the ten-year-old-son, a box of chocolates for I allow myself one for every two straight hours I sit at my desk, two journal articles I mean to read someday, a package of gum I confiscated from my seven-year-old’s backpack, and a posted note affixed to my monitor that says (in faded ink):  “NO EMAILING BEFORE NOON” (ignored from day one).

[i asked for details and Daphne said the articles were Reva Siegel and Neil Siegel, Pregnancy and Sex-Role Stereotyping, From Struck to Carhart,70 OHIO ST. L.J. 1095 (2009) and Shannon Sampert, Let Me Tell You a Story: English- Canadian Newspapers and Sexual Assault Myths, (2010) 22 CJWL, vol. 2, 301.  “I actually have the entire volume of the CJWL sitting on my desk but the Sampert piece is the last one I have to read!  I loved that conference in honour of Jane Doe— it was such a fantastic positive space”]

Fiction book you read in last 12 months that you recommend?

I loved “The Guernsey Literary and Potato Peel Pie Society” by Mary Ann Shaffer.

Tell us about the birth and development of the ideas in the articles that the SCC cited:

Gilbert, Daphne.  “Time to Regroup:  Rethinking Section 15 of the Charter” (2003), 48 McGill L.J. 627.

Gilbert, Daphne, and Diana Majury.  “Critical Comparisons:  The Supreme Court of Canada Dooms Section 15” (2006), 24 Windsor Y.B. Access Just. 111.

Time to Regroup” was a follow-up piece to my first published article on section 15, which itself was part of a tribute to Justice Claire L’Heureux-Dube.  In that first article, I had described her approach to section 15 and her emphasis on groups and de-centering of a grounds-based analysis.  As I wrote that piece, I found I had more to say and so “Time to Regroup” was born.  I was particularly intrigued by the idea that a focus on groups could highlight the unique experience of those historically disadvantaged in our society.  Grounds, as described in section 15 and by the SCC, are “neutral” in content (with the exception of the ground of “disability”).  I liked the idea that groups were more fluid, multi-dimensional and welcoming to an intersectionality analysis.

The piece Diana and I co-wrote was a post-Hodge contemplation on the rising role of comparator groups and the corresponding demise of substantive equality in the Supreme Court’s section 15 jurisprudence.  It was born out of a meeting organized by LEAF.  Feminist academics and activists from across the country met in Ottawa for a workshop on how to move forward in a post-Nancy Law era of equality rights.  The role of comparator groups was one of the issues discussed at that workshop and Diana and I planned a three part article series (shoot for the stars!).  “Critical Comparisons” was the first part, outlining the problems with the Hodge approach to comparator groups.  We were concerned at how narrow and formulaic the Court’s approach to comparison was becoming, as evidenced in particular by Hodge and Auton. Part II of our planned trilogy was supposed to be a larger “think” piece on the contextual role of comparison in equality analysis.  We wanted to take one of the concluding paragraphs of “Critical Comparisons”, wherein we name-dropped some alternate approaches, and expand that into a more contextual and broader discussion on the role of comparison.  We then planned a third piece on what the Court could do differently, specifically within a section 15 rubric, but considering our more theoretical musings from part II.  And so… as you can see, we landed firmly on earth in our “shoot for the stars” goal of three comparison-centred articles!  We got seriously mired in part II, reading philosophy, sociology and comparative legal analyses. In the end, we couldn’t work ourselves out of the “conundrum of comparison” (our working title for part II). When I sat down to work on the factum for LEAF’s intervention in the Withler case, I really bemoaned our failure to write the theoretical analysis.  I could have used it as we tried to craft a post-comparator-group option for the Supreme Court.

How do you describe your feminism?

I think my politics align with the second wave feminist spirit, but my feminism is not just a political statement.  Feminism infuses my career, the friendships I hold most dear, my relationship, my parenting… and so it is difficult to describe in the abstract.  I am grateful that my job allows me space to write and teach about feminism, so that the constant, underlying foundation of my life is made manifest in an active


Name the course you took in law school that you think about most now and why.

I always joke with my students that I can lay honest claim to those stereotypical complaints:  “In my day, we walked to school.  Uphill.  Both ways.”  : ) I went to law school at the University of Manitoba at a time when both first and second year were a prescribed set of courses.  As a result I took classes like tax and business organizations, that I might never have taken otherwise, and it was a healthy challenge!  Perhaps not surprisingly though, the course that most influenced my career was “Gender and the Law” with Karen Busby.  It was my first exposure to an out feminist teaching about feminist issues.  I realized academia could be the place to do really interesting work.

Qualities you appreciate most in your students?

I love teaching.  It is my favourite part of the job.  I love students who are enthusiastic and passionate about law school.  I love it when they dive into the whole experience and really challenge themselves by taking courses outside their comfort zones.  On the one hand, I really applaud the students who come in with a firm sense of direction.  But on the other hand, I celebrate those who find their heart in law school and head off on a new adventure, different from the life they had charted for themselves.  Law school can be just such a turning point for so many students, and I love being part of that journey.

[Image is of three of Daphne’s most difficult students – her kids]

Qualities you appreciate most in your colleagues?

I appreciate the dedication and innovative spirit that so many of my colleagues bring to teaching and other faculty projects.  So many of my colleagues are making a huge public impact with their work in technology law, environmental law, international law, and of course the feminist-equality rights advocacy that our faculty is known for.

Name one Canadian academic whose work inspires you and who could be more widely known/read/loved.

Only one?!  I am a big fan of Maneesha Deckha’s work on animal rights issues and feminism.


How do you think your professional roles – scholar, lawyer, activist, feminist, teacher –   relate to each other? Do they ever all come together?  Have I left some out? Are there ways in which they don’t fit together very comfortably?

I feel pretty comfortable about the way all of those roles have combined in my professional life.  It is my work on the legal committee of LEAF that has really given fruition to my lawyer role, and I love that I can bring an academic eye to the litigation LEAF engages in.  My work on the Withler intervention was one of the most rewarding professional activities of my career (and it allowed me to simultaneously add and then check “appearing before the SCC” off my bucket list—an aspiration that hadn’t even made it on, I considered it so unlikely!)  Our faculty at uOttawa has such a strong feminist cohort, so it is easy to bring my feminism into teaching and activist work within the community.  That same feminist community also enabled my scholarly work by ensuring I both attended and presented at feminist legal conferences early in my career.  From the beginning of my appointment, I had so many feminist mentors in my own faculty, giving me the strength in numbers to feel secure in teaching and writing with a strong feminist focus.

What is your process for co authoring with Diana?

The setting is important and so you need to picture it:  a beautifully warm and sunny backroom with a roaring woodstove in the winter, Diana’s cuddly dog Ella (now sadly passed away) hogging one end of the couch, two pairs of feet propped up on the coffee table, and mugs of fabulous coffee at hand with sweet treats (my only contribution) for I can’t work without sugar (see the list of what is on my desk).  We usually tried to stick to a “gossip for an hour and then get right to work” rule, but with mixed success.  We talk our arguments out for hours together, and then divide up the writing.  We each write portions of the piece, but usually not entire sections on our own.  I may take the first half of an argument, for example, with Diana rounding it out.  Our articles aren’t severable into distinct “hers and mine” parts, but rather are totally integrated.  We don’t sit down and write together, but by the time the piece is done, it is truly a joint writing experience.  We go over the final draft together and work on the nuances of language.

[the image is of the cake Daphne made for Diana, in honour of Diana’s hon doc from the Law Society of Upper Canada.  Diana spoke to newly called lawyers using the Wizard of Oz as her theme]

Did you imagine when you were writing them that you might be writing for an audience of judges?  The title of the co authored piece does suggest that you didn’t!

We did not think the Court would ever cite our piece!  As a former clerk, it behooves me to say that I assumed judges might read our work.  I did not think however, that it would be cited.  Our co-authored piece “Critical Comparisons:  The Supreme Court of Canada Dooms Section 15” does draw its title right from the language that Justice Binnie uses in Hodge to describe the conundrum of comparator groups, so we felt a little less provocative in using the word “doom” then we might otherwise have felt.  I was really glad to see the Supreme Court cite so many great feminist authors in its Kapp decision, even if it didn’t use that opportunity to flesh out the arguments (or more specifically the critique) that we were offering.

Which section 15 case are you looking forward to and/or What’s your fantasy section 15 case – the case you think would be winnable, important, fabulous, but no one’s bringing it?

I am so disheartened by the Withler decision that I can’t say I feel optimistic either about section 15 or about fantasy cases.  A case I liked, that I thought was bravely written, was the Falkiner decision at the Ontario Court of Appeal.  I appreciated the recognition that “receipt of social assistance” could be an analogous ground.  I think poverty challenges are unwinnable at the Supreme Court of Canada (think Gosselin!) but they are so important.  Welfare, homelessness, mental health, child poverty, education rights… all of these issues and more haunt the true realization of section 15’s potential.

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