Daniel gets personal with his old mentor and senior partner at his firm, Goldwater, Dubé. She discusses her career highlights such as the same-sex marriage case of Hendricks and Leboeuf v. Quebec and the reasonable accommodation case of Bruker v. Marcovitz. Identity, minority rights and secularism are themes of the episode.
Full Episode Transcript
Daniel: Hi, welcome to Viva Voce. I’m here with my guest today, maître Marie-Hélène Dubé, my former articling supervisor. Hi, Marie-Hélène.
Marie-Hélène: Hello Daniel!
Daniel: How are you?
Marie-Hélène: Very well!
Daniel: Okay. So we know each other.
Marie-Hélène: You think? Yes, we know each other since well before your internship.
Daniel: Long before.
Marie-Hélène: Long before!
Daniel: So how many years now, more or less?
Marie-Hélène: Do you want me to reveal your age?
Daniel: So since I was a newborn, actually.
Daniel: You work with me at the office.
Daniel: And as I just said, you were my articling supervisor. You are the partner at the Goldwater, Dubé firm, but I’m not the other partner. There is another Goldwater.
Marie-Hélène: You are THE maître Goldwater, but there is a SHE maître Goldwater, the one and only Anne-France Goldwater.
Daniel: Ah! There is another Goldwater!
Daniel: I know her too, since I was a newborn.
Marie-Hélène: Yes I think she knows you even before I met you.
Daniel: That raises existential questions. So, how did you know my mother?
Marie-Hélène: In fact, she represented my mother when my parents divorced. And after that – your mother was very young at that time as she was barely starting her practice – your sister Samantha was already born, she attended my mother’s daycare. And after that, when you were born, after you spent your first year at the office, you too, came to daycare. And so, the history of our families goes back very far.
Daniel: Yes, it makes me a little emotional, telling the story. There are some funny parallels, because your mother, Thérèse whom I call, with great affection, Mamie Thérèse, Mamie T, was always for me a second mom. Even my mother was for you not a mother exactly, maybe...
Marie-Hélène: No, rather like a big sister.
Daniel: A big sister, that’s it.
Marie-Hélène: And, must I add, my second daughter Béatrice saved her first word for you. The first word she uttered was Daniel.
Daniel: Oh, I remember. And now, Béa is a woman today, it’s been several years, it’s too personal there. So you became associated with my mother in which year?
Marie-Hélène: I had all the titles. I worked as a student when I was at university. Subsequently, I did my internship. She was my articling supervisor and she offered to keep me at her employment. At that time, I was employed. Exactly, when I was pregnant with my daughter Béatrice, and that I took maternity leave, when I came back, she offered another young lawyer and me to become associates at the firm, which we did. So I got all sorts of titles.
Daniel: You know, I think it’s pretty clear that you have, you and my mother, a very different style, a very different aura, a very different energy. So I think a lot of my fellow gals and guys, my friends, will easily notice that there is almost a Ying and a Yang. How is it, in fact, working with my mother? Is there some complementarity? Or sometimes do you find it rough?
Marie-Hélène: We complete each other perfectly. But also, certainly, when we are so different, sometimes it can be difficult to understand or to accept reactions that are the opposite of those we may have. Of course it’s not always a long calm river.
Daniel: So if I asked you to reveal a bit of the differences in your humble opinion of style, in a legal way between you two.
Marie-Hélène: As a lawyer, I think she has a lot more creativity than me. But I’m much more diligent.
Daniel: That is true... Much more caution, it’s true. As I have already said twice, you were my supervisor and I do not say that just to flatter you in front of the cameras, but it was very important to me in my development, because I think I have qualities a little bit from my mother, for better and for worse, and sometimes I thought I was a little too impulsive, even arrogant, at some point. I remember many times when I wrote a request or a letter and I brought it to you, there was a well-thought warning in each review you gave me. “- Daniel, did you really think it through here? - Of course! - What about the step after this step? - Oh yes, the step after the first step!”
Marie-Hélène: It touches me deeply. It’s true that since a few years I have this chance to work with interns and young lawyers, and that’s something that teaches me a lot as a lawyer, because that makes me question what I have learned, to ask myself questions, and also to find the meanings of what I find important, to be able to share it with lawyers who are still in training. I would say that it’s hard to be a lawyer. It’s a profession that not only is very stressful and takes time and energy, but also this interaction with the generations of lawyers who are developing, it is something that is very dear to me.
Daniel: Let’s talk about your career. There was a big deal, I think, it was Hendricks-Leboeuf. That was the case with same-sex marriage between two men, and it was a very important case I think in your career. What was so important and convincing to you in this case?
Marie-Hélène: Our clients.
Daniel: Maybe just explain the facts a bit, roughly speaking. It’s not that complicated I think.
Marie-Hélène: No. It is very simple. In fact, it’s a couple, René and Michael, who lived together for 27 years and then who were very involved in defending the rights of homosexuals. In particular, they lived in the time when unfortunately the community has been decimated by the AIDS epidemic and that led them to become even more committed to defending the rights of homosexuals. They tried a few times to get married. Each time they were opposed by the clerk. Finally, they hired lawyers when the Supreme Court delivered judgment in the M versus H case. I know it goes back a long time, we were in 1999 at that time. It’s been almost twenty years. So the M against H case, it was two lesbian spouses, de facto spouses, and there was one who claimed the right to ask for alimony, which the Supreme Court gave her. And your mother was invited to comment on the Supreme Court’s decision on the radio. Michael and René heard her talking, were seduced by her energy, by all she said, and came to consult her about their own desire to get married. I remember when your mother, I was not present at the first consultation, but when she asked me to come to her office and that she told me about the file, at first I had the classic reflex to think that it would be impossible to obtain, and even to conceive marriage between two people of the same sex. So it forced me to confront myself, and to really think what defines marriage. And that’s why my answer was the clients because it’s by meeting these two people, seeing them together, by noting the quality of their bond, that I was absolutely convinced that it was absolutely discriminatory to refuse them the same title, to have the same title at the bottom of their relationship than any heterosexual couple. Because unfortunately, what we often see in our reality, you know it very well, it’s difficult for couples who end up separating. And even in our personal lives we also see how difficult it is. So to have in front of me two people who had been together for 27 years, and who had reached such maturity and good repute in their relationship, for me, it’s not even a question of studying law or anything, but it’s their relationship that convinced me that they were facing discrimination against which I wanted to fight.
Daniel: So it was more a question of being inspired by the depth of their relationship, by the personalities of the clients themselves, rather perhaps to have a social mission that you had in mind for a long time. I imagine you were sympathetic to the questions, but there was always this civil training, the positive law and what is possible.
Marie-Hélène: Yes! For me, it was my initiation towards all equality issues. And today, I think it’s the legal side of it all that reaches out to me. I say legal because, of course, at the human level, there are all kinds of questions that arise in our cases. But legally, I would say that where I feel that I have a mission is to try to make sure that discrimination in all its forms becomes less and less present.
Daniel: But let’s talk about equality and social issues. Tell me about the stakeholders in this case. There were religious groups?
Marie-Hélène: Yes! In fact, after we have filed our request it ended up on the front page of the media. A whole surprise. We filed the application and the next morning at 7 o’clock in the morning, requests for interviews from the journalists started and everything. It was an issue that sparked a lot of curiosity. And in the course of the file, there were two players in the Catholic League and an alliance with the Protestant Church, who have applied for stakeholder status, to be able to assert the point of view of religious institutions that they represented, with respect to the traditional definition of marriage.
"Legally, I would say that where I feel that I have a mission is to try to make sure that discrimination in all its forms becomes less and less present. "
Daniel: I’m going to ask you a question before you continue to describe exactly the stakeholders and their arguments and the spirit. It’s a personal question, so you have a choice to answer it, however, you want to answer it. I understand your religious heritage is Catholic.
Daniel: Do you define yourself as a Catholic?
Marie-Hélène: It’s not a determining factor of my identity that is very important to me, so much as a common point, because I have a Haitian mother and a Quebecer father. One of the reasons, in fact for which Haitians came to Quebec, there is the French language and then the Catholic religion too, who were common points a few decades ago. It may be less true today, but in the 1960s, yes. So, in my story, it’s something that is somewhat important, but I am not, myself, an extremely practising person. Of course, from a cultural point of view, there are religious holidays we celebrate and it’s part of me that way, but I would not say that it is necessarily the thing that weighs the strongest. So that’s for sure that religious teachings with regard to homosexuality were not for me an obstacle really difficult to overcome.
Daniel: Thank you for answering the question with so much class. The reason why I actually asked the question it was because we were talking about the Catholic League and the Protestants, and so sometimes, just to reveal why I asked the question is that, being of a Jewish heritage but being also atheist, for the most part, sometimes I ask myself the question if it affects my judgments in relation to other religions, other cultures and to have some sympathy and see it in their own way. Especially since I’m from Montreal, I was born and raised here in the “Belle Province”, so there is a certain secularism I think here, which is perhaps more pronounced than elsewhere. So to have these speakers sometimes, it takes diligence, an intellectual patience to see it in their own way. So what was their argument and how was it that you reacted to it?
Marie-Hélène: First, we did not agree. We opposed their intervention because precisely, we believed that we had to let the religions treat their notion of marriage separately from the evolution of the civil conception of marriage. We were, of course, considering that there would be, at some point, a clash between the conceptions that some religions have of marriage, in relation to the civil definition of marriage. So for us, as a reflex, when I say we, I’m talking as much about our clients than your mother and I who were working on the case, it was to put forward the secularism, to put forward the separation between church and state. To our surprise, our argument was rejected and Judge Rolland said, wrote in his judgment that the lining is not that thin and we must not forget that in the constitution, Canada is said to rest on the supremacy of God, and until 1969, marriage could only be celebrated in Quebec by ministers of religious worship, so from the point of view of different religions the marriage was relevant, even though the case concerned only a civil marriage.
Daniel: It’s a little provocative, it’s a little sexy as an observation for me. Because for me it’s too attractive so I will not go into it too much because actually I want to carry on the other topics, because you already had a career quite defined. So, let’s talk about the other case. There was another case that was very striking and also that is overlapping with your questions of religion and reasonable accommodation. That was the Marcovitz versus Bruker case. What was at stake in this case, just to give an idea?
Marie-Hélène: Simply put, it’s a couple, both were Jewish, and in their agreement of divorce, they had a provision that said they had to go to Beth Din, the Jewish religious court, to get their Jewish religious divorce, the Guett. Neither has done anything for many years. At one point, the ex-wife asked the ex-husband to give her the Guett, he did not do it, she sued him for damages. So the case aimed to determine whether or not she was entitled to damage claims because she had not had her Jewish religious divorce.
Daniel: Finally, she won at the Supreme Court.
Marie-Hélène: She won on the principle. But in terms of demand, his request was $1,350,000 and she got $50,000 so it was really a gain in the principles but without being a recognition that lady in question had suffered significant damage.
Daniel: So the difference, and correct me if I’m not exactly right, because in fact I think I was not even in law school at the time, but we studied it even at the University of Montreal, in fact, you can suffer damage for the default of a religious contract.
Marie-Hélène: Exactly. So that’s where the two files overlap at some point. There is a common thread. In the case of same sex marriage we talked about the very nature of marriage, in Marcovitz we talked about divorce. But we are in the same continuum and in both cases, the question of the duality between civil-religious marriage and divorce opposed. We stayed consistent with each other and in the Marcovitz case, we asked the courts, in fact, we had asked that be declared unconstitutional the article of the law on divorce which aims to remove obstacles to religious marriage.
Daniel: Explain that for the audience, because it’s striking in my humble opinion, when I knew that there is this article, this provision, this article in the act of divorce. So can you just explain it for the audience? I think there may be some ignorance in this matter.
Marie-Hélène: Yes! In fact, at the beginning, during the 1980s, there were several people from the Jewish community who submitted to the federal government the request that the law on divorce solves the problem of some Jewish women, who cannot get their Jewish religious divorce. And the impact is terrible in their lives because not only can they not remarry but they cannot be with men either. So they are
Daniel: I think an expression in the community is “agouna”.
Marie-Hélène: Agouna, that’s it. So they remain chained to a marriage that is dead. This is really a tragedy for women who find themselves in these situations.
Daniel: And some men too, but it’s very rare.
Marie-Hélène: Some men, but there is a remedy for men. In fact, the situation is worse for women too, because a woman who does not have his Jewish religious divorce, her Ghett, and who has a child, that child, even if she is remarried civilly, let’s say that she said “I will leave aside for myself the religious aspect”, but if she remarries civilly and has children, her children are considered bastards. So the consequences are also much more serious for women than for men.
Marie-Hélène: Which is not the case of the Jewish man, because the Jewish man can remarry him civilly but if his wife is not herself an agouna, their child will not be bastards.
Daniel: I understand, because it’s matrilineal.
Marie-Hélène: No, but because in fact I do not want to pretend to be an expert in the field, but the Jewish religion, at the time, was not monogamous, historically, as I understand it. Now the Jewish communities are all monogamous, but religion does not require monogamy from the man.
Daniel: In fact, Bruker, it was the woman in this case, won in principle as you said. And just a quantum of 50,000, but still, it’s a big quantum for the average person, but it depends on the facts of the case, she asked for a lot more, I understand. So, to make a comeback now, it’s like the judge...
Marie-Hélène: Again, just to finish the link, the reason we argued that the law about divorces by intervening to allow people to get a religious divorce, the reason we argued it was unconstitutional is that it allowed a state intervention to obtain a religious remedy. We said, again, it’s about going beyond this separation between church and state. So we remained true to ourselves.
Daniel: In fact, I understand that. That was the fact that Judge Rolland was correct. That perhaps the line separating the church and the state is a little blurry, it’s not exactly that seamless. And maybe the example there and again this provision in the law on divorce and also, obviously in our constitutional act, there is a reference to God and so actually, that intellectual feature that you still have today I guess, there is always a question to ask. It’s still not 100% answer, so where to draw the line?
Marie-Hélène: No, and that’s the wisdom of our courts, even if sometimes it’s a challenge to understand exactly why such judge decides such thing at some point in time. But indeed, I think we have to ... actually, I’m going back for a minute to an anecdote during the trial in the Hendricks and Leboeuf case. Judge Leblanc asked your mother, “but maître Goldwater, is there one marriage or two marriages?” And your mother answered, “There is one marriage, but there are two celebrations.”
Daniel: Religious celebration and civil celebration?
Marie-Hélène: That’s it. So, of course, I come today, today we come to 2018, to the conclusion that we have to find the right balance. And that’s why I was talking about the wisdom of judges, because the Supreme Court, when we talk about constitutional law and rights and freedoms, always reminds us that it’s a question of balance. And it’s hard to find that balance between opposing rights.
Daniel: Let’s talk about balance. I’m going to purposely speak right now, because I want to wind down on your story, because I know you, and there’s a theme your career of trying to find equilibrium between different identities and almost fractured identities. And that’s why I’m speaking in English, considering the hybridity on Montreal’s culture in Quebec, in Canada. We are bicultural and bi-juridical, maybe multicultural, there’s a whole discussion on that. Anyway, not to get too cheeky, you referred to the fact that you are biracial. So Mamie T is obviously Haitian. And your father is of French-Canadian descent. To lead you into this, do you find that your experience as a proud Québécoise, and also you’ve devoted your life to these questions of justice here in our courts and our jurisdiction effect on you, your story, your personal biography and raised here with these different you’ve had to deal with?
Marie-Hélène: Yes, definitely. You will allow me to answer in French because you are going to be a bit personal, it’ll be a little easier.
Daniel: Go for it!
Marie-Hélène: But it’s certain that for a young girl who did not have the most common journey I have not been to primary school, my mother homeschooled me, as well as my sisters, and who also started high school while I was two years younger than the others, so I arrive at ten years old in high school, whereas I’ve never been at school, I am perceived differently. But in my child’s eyes, it’s not entirely obvious why other children around me, the other girls around me, treat me differently. Is it because of my age? Is it’s because I do not have quite the same accent? Is it because I have different hair? Is it because my mother has black skin? So there are all kinds of questions that I am well aware of, but I do not necessarily have the answers. The only thing I’m sure of is that I’m identified as different and this story led me to understand, I believe, the position of all groups in society who can feel like a minority, whatever the reason, be it the colour of the skin, be it the language we speak, the way we speak, a disability, because of sexual orientation. My life story made me aware of this status of being a minority. I started for the first time to fight against discrimination, as we said earlier in the context that was for homosexual people, even if it’s not a group to which I belong, it was not important for me to fight only for a group, and in fact it’s something that I’m proud, to have had this chance and to have been able to help people, not because they are like me, but because as a society, I think that we are stronger when we give the same respect, the same dignity to everyone.
Daniel: I will answer in English just to wind down, because we are getting to things that are intimate stories, and I’m different from you. I also feel very similar in Montreal, Quebec is my home. And I’m an Anglophone, clearly, and bilingual, and I’m Jewish, I have Jewish features, and while being an atheist. I’ve also had to, in my own way, juggle different identity points. And I’m also a man and all the privilege that entails. I do have white skin and that does afford privilege me. And I know that that’s a discourse that’s out there with mostly our youth, which I think is good discussion to have. And one thing that I’ve always taken from you is your, I don’t want to objectify you too much, but your dignity and your wisdom, that I find myself much more eccentric and putting things out there and being deliberately obtuse and secretly provocative, not so secretively sometimes. And I find that you manage to... Everyone has pain, I think that’s part of being human. Hopefully as we age, the pain is better to manage.
Daniel: Hopefully. And I just find that you strike me as very strong. And in this presentation, you’re still a woman, and you’re tiny, and very chill. And my mother gets a lot of attention for being the more bombastic one and your strength is so much more subtle, and desirable to me.
Marie-Hélène: It’s not a competition. I love her the way she is, I want her to be able to be eccentric or for you to be provocative. I want for me true equalities. A woman wants to stay at home and wants to take care of her family shouldn’t be penalized for it. A woman who wants to wear a hijab shouldn’t be penalized for it. A person who is attracted to someone of the same sex shouldn’t be penalized for it. A person, like my son, who has black skin, shouldn’t be targeted by the police. As a mother of a black son, I find it extremely painful that when I see a police officer, I feel threatened for my son. And I think that this is actually where we are alike you, your mom, and I think we want this kind of society where there wouldn’t be any of these type of discrimination. For me it’s important that a woman can be different doesn’t have to answer to stereotypes. I think it’s something that is unfair to your mother.
Daniel: Well I am sometimes unfair to my mother. I love her, I think, more than anybody, even my sister. But to wrap this up, because I think this gets something to the core of our relationship in many ways. Granted those are the goals, and sure I don’t want little Olivier, who I see as my nephew in a way, to be harassed or feel othered in a society that’s his home. The question always becomes, what do we do with this pain? Do we double down on a sense of victimhood? Do we become overbearing towards others? Do we go in the other direction? Everybody has different layers of pain that they have to struggle with in their development. And the best way to resolve it is, I think, the question of ethics and how to live a good life. And I think that’s why, I meant, it wasn’t to take away from my mother, it was to thank you, because I find that whatever anger you may have against the world, which everybody does, not to make you different, I just find you process in a way I seek to emulate, which is dignified, and purposeful and cautious.
Marie-Hélène: Thank you, Daniel. Those are beautiful comments. I will treasure them.
Daniel: Alright. Well, thank you for tuning in guys, this was an emotional episode. I’m not crying, I just have something in my eye.