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20 years and counting section 15 of the Charter of Rights and Freedoms

by Lisa Rundle | April 15, 2005

Imagine a country where women are forced to take their husband’s name. Where a committee of doctors decides whether or not a woman can end her pregnancy safely. Where some women who marry outside of their cultural group lose their own identity in the eyes of the government, which dictates that they must fold themselves into their husband’s culture for the rest of their lives. Where a wife who’s run the family business for more than two decades has no right to a share when the marriage ends …

Now imagine Canada just over two decades ago. For most of us, the two pictures won’t have much in common – but they should.

Before Canada’s Charter of Rights and Freedoms came into effect, women’s rights didn’t enjoy much protection under the country’s laws. In fact, they didn’t enjoy protection under the law at all.

Canada’s then Bill of Rights, explains Queen’s University law professor Beverly Baines, said women were equal before the law, which meant, in essence, that, as long as all women were being treated the same before courts, no right was being infringed.

According to the Women’s Legal and Education Action Fund (LEAF):

The phrase, as it turned out, meant that women should be treated equally in the administration of justice when they found themselves “before the law.” The law itself might discriminate against women, but so long as the law was applied in the same way to all women, the Bill of Rights was not violated.

This, of course, lead to some really unfair, sexist court decisions that were fully sanctioned, legally speaking. “We needed some way of saying, ‘We need a new test for equality, guys (and it was guys); we’re not the second sex,’” says Baines.

When the Trudeau government produced a draft of the new charter – something that could make equal rights part of the constitution, and much harder than regular law to change – women acted quickly. They knew that the proposed wording – similar to what was already in place – wouldn’t help advance equal rights for women or any other discriminated-against group. So a bunch of law students and lawyers, women’s organizations and activists – and women across the country who were outraged by the way women were treated by the law – set out to change the very wording of Canada’s constitution.

That was just 26 years ago.

It’s easy to think that equality rights for everyone just came about one day because the country realized it wasn’t okay to treat groups of people by different standards. It’s only logical, after all. Like that day in childhood when you realize that the boys are treated differently than the girls. “That’s unfair,” your very rational brain tells you. “It must stop.”

Your logical brain is right, of course, but as you’ve likely realized, in the adult world – much like the little-kid world – achieving that kind of direct change often ends up taking a rather circuitous path, which takes a lot longer to travel than you’d ever expect.

Draft charter in hand, women met, strategized, organized and debated. Was it smart to participate in a document that would put so much power in the hands of unelected judges, they wondered. If it’s going to happen, isn’t it better to participate?

When the government cancelled a planned conference organized by the government-affiliated Canadian Advisory Council on the Status of Women, then-head of the council, Doris Anderson, quit (despite being a single mum) and made a public ruckus. With barely two and a half weeks to pull it together, and few resources, a group of women begged, borrowed and stole to set up an alternative conference on Parliament Hill, February 14, 1981.

More than 1,000 women attended.

What emerged was new wording for equality that has come to define what Canadians think of as fair treatment, and how the world defines Canada.

Judy Rebick, in her new oral history of the Canadian women’s movement, notes that participating in the creation of the charter would “bring the women’s movement into mainstream political debates with an impact no one ever imagined.” (And keep them there.)

The equality provision, section 15, now sets out four kinds of protection – equality before and under the law, and equal benefit and protection of the law – on seven grounds, including sex. It means that equality can’t just be equal treatment, it needs to actually produce equal results.

It was a momentous achievement, but there was a catch. The government – anticipating challenges of laws across the country based on the new charter – instituted a three-year waiting period on just section 15. Which is why, while some celebrated the 20th anniversary of the charter coming into effect four years ago, April 17, 2005, marked the true 20th anniversary of equality protection.

What did women at the time think of this three-year delay? “We were pissed off!” says lawyer Beth Symes. “But we used the time very productively.” Not trusting that the various levels of government would really review all their own laws and make the appropriate changes, women did their own audit. “We educated ourselves and made a list of litigation priorities,” Symes explains.

Women readied themselves to challenge unfair laws under the charter and to set the kind of legal precedents that would be needed to enact the full scope of equality they had envisioned. LEAF was created to continue the work they had begun and, in 1985, the challenges began.

Since that turning point, there have been many successes and there’s much to be proud of.

  • Women in the Yukon no longer are forced by law to take their husband’s name.
  • Marital property laws recognize women’s contribution.
  • We know we deserve equal pay for work of equal value.
  • Women’s reproductive rights are legally protected.
  • The Criminal Code limits how a woman’s past sexual history can be used at a sexual assault trial.

All done. Equality entrenched. Ancient(ish) history.

If only. More like living history, subject to endless reinterpretation. (And definitely not ancient – our abortion law didn’t get struck down until 1988, and sexual orientation wasn’t read into the charter as a grounds for discrimination until 1995, just 10 years ago.)

Symes recalls one of LEAF’s first charter cases, a challenge of the “spouse in the house” rule for women receiving social assistance in Ontario, whose benefits could be cut if there was a man in her household – the assumption being he’d support her. “That case has a 20-year history,” says Symes. The challenge began, then the provincial government changed and revoked the rule, the government changes again and reinstates it, and then …

Politics and the charter “often work hand in glove,” says Symes. The charter is not immune to the political climate – so the same goes for our equality rights.

Judges, of course, are not immune to the political climate either. And it’s our Supreme Court judges who rule on charter appeals, setting precedents and shaping our rights under the law. (The Supreme Court, by the way, has never had a female majority.)

There has been a wave of criticism in recent years of what critics call “activist judges.” The complaint, almost always in reaction to progressive decisions, is that judges are, through their interpretations, creating new law.

There’s been nary a peep from those critics, however, about Supreme Court decisions in Newfoundland and British Columbia. LEAF litigator Fiona Sampson calls them bad decisions for women, and for everyone seeking equality rights under section 15. In each case, while discrimination was proven, the potential cost to government (a positive financial responsibility) trumped the protection of rights. Of the Newfoundland case – a pay equity issue – Sampson says, “They’ve chosen to balance budgets on the backs of women.”

“We knew this day was coming,” says Marilou McPhedran, a member of the Canadian Human Rights Tribunal and co-founder of LEAF. “You can’t go up against the holders of power and money in the way the equality guarantees in the charter obviously do without expecting overt backlash and more covert pushback.”

Cynthia Pay has seen government’s attempts to limit the scope of the charter in her work as a staff lawyer at Parkdale Community Legal Services in Toronto. The Social Benefits Tribunal in Ontario, which hears claims around social assistance, is actually barred from considering the charter in its rulings. “It’s a common problem with pursuing social justice through legal means,” says Pay. “The government tries to sneak by with minimum compliance.”

Pay, who is also a past president of the Chinese Canadian National Council, points out that this is not the only trouble with the charter process for achieving equality. “The law is an important tool,” she acknowledges (in fact, it’s why she became a lawyer), “but it’s not a panacea.” Access to the legal system is an issue for many who are members of disadvantaged groups.

“It’s not easy to enforce rights through this mechanism,” says Pay. Charter cases go on for years and years, and it’s hard to get governments to prioritize rights protection when money is on the line.

Lara Karaian, a teaching assistant in Women in the Law at York University, points out that, while she feels she’s directly benefited from charter decisions, “I have access to this kind of rights-based equality in a way that those without my degree of privilege do not.”

McPhedran notes that, in spite of international laws and treaties signed by Canada, socio-economic equality is not protected under section 15 – or anywhere else in the charter.

But, she says, now that “the house of equality is starting to crumble,” we’ve got to use all available tools, including section 28, which those women 20-some-odd years ago fought to have added to that draft charter, just in case. It reads:

“notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

With all that the charter offers, women fighting for fairness in the law have only gotten started.

"It’s far from over," says McPhedran.

This feature was first published on section15.ca’s predecessor site CoolWomen.

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