In the run up to the repatriation of the Canadian constitution, feminist organizations were influential in the mega-constitutional politics that led to the adoption of the Canadian Charter of Rights and Freedoms, the most significant constitutional change since 1867. As Murphy (2004) argues, constitutional rights differ critically from non-constitutional rights – as “supreme law”, they stand above regular law and are generally beyond the reach of elected representatives. Constitutional debates offer key opportunities to define the political community and for that community to ‘consent’ to being governed and bound by the laws and institutions. Women’s ability to “achieve space” at such critical moments may well have far-reaching implications (Murphy, 23).
During the repatriation of the Canadian constitution in the 1980s, fifteen women’s groups, a significant expression of Second Wave feminism, addressed the Special Joint Committee on the Constitution (SJCC). Although demands were diverse and many appeals went unaddressed, their combined efforts ultimately produced the equality rights enshrined in the Charter in s.15 and s. 28 (Manfredi, 2004).
Lobbyists represented a range of individual constituencies, including women in business and the professions (National Association of Women and Law [NAWL] and the Canadian Federation of Business and Professional Women) and First Nations women (the Native Women’s Association and Indian Rights for Indian Women) as well as those tackling questions of education and training (Canadian Congress for Learning Opportunities for Women) and religion and social welfare (the Catholic Women’s League and Young Women’s Christian Association). Despite differences, groups nevertheless shared important demands and concerns.
Many submissions condemned the Charter’s focus on negative rights. NAWL criticized the proposed title of Section 15–‘non-discrimination rights’ –for its reference only to what should be avoided (inequality) rather than that which should be actively sought (equality) (NAWL, 1980). The original phrasing “equal before the law” was deemed to imply the equal application of the law without requiring the positive approach of “equality under the law”, which necessitates equality within legislation and policy (NAC, 1980; Voice of Women, 1980; Women for Political Action, 1980; Women’s Habitat, 1980; NAWL, 1980; Canadian Federation of Business and Professional women, 1980). Groups also demanded that the benefit and protection of the law apply equally to both men and women. Such appeals for a more proactive approach were largely affective. Still more significantly, the interveners demanded the inclusion of subsection 2 of section 15 to ensure the constitutionality of affirmative action. Some groups sought to replace ‘everyone’ with ‘every person’ throughout the Charter to guarantee the equal application to both men and women (because ‘person’ had been so defined in the 1929 Persons case). While this demand was denied, s. 28 was added to the Charter, explicitly stating that all rights apply equally to men and women, albeit ‘notwithstanding anything in this Charter’.
While women’s organizations clearly shaped the final product of the macro-constitutional process, their apprehension regarding lack of reference to positive, substantive, equality remained. Three particular concerns are worth noting. First, some groups, including Women’s Habitat, the NAC, and the YWCA worried that the protection from discrimination in s. 15 would not apply if only some, rather than all, of a given group were adversely affected. They proposed, but were denied, an additional clause to explicitly state that it was not necessary for all women’s right to equality to be affected for a s. 15 violation to occur. A second more significant critique was made of s. 1 of the Charter, the general limitation clause. Several groups referred to s. 1 as the ‘Mack truck clause’ since its broad wording permitted numerous interpretations of limitations, creating ‘the potential for driving a truck through it’ (NAC, 1980, 2). Critics proposed either the removal of the clause or much more explicit and narrowed justifications for limitations. Finally, there was alarm over the lack of representation of women on the Supreme Court, since a court ‘fully understanding’ of the Canadian people would not be possible with only one sex over-represented (NAWL; 1980). Requests for a quota to ensure the representation of women on the Supreme Court bench were rejected.
Murphy (2004) argues that the discourse surrounding the repatriation was a site of contestation for women’s groups; issues of racism and classism formed the basis of a critique of feminism throughout the process. Although the NAC and LEAF initially assumed gender to be the single determinative social category, groups seeking to represent the poor or Aboriginal and visible minority women identified exclusion, essentialization, and appropriation, in other words, “another form of oppressive treatment” (25). This conflict forced many feminists to turn a critical eye on themselves, admitting that white and middle-class power and privilege infused dominant discourses. In the process, Murphy agues, the category “women” was destabilized and the women’s movement became more democratic.
Almost 120 years after Confederation, Canadians obtained a Charter of Rights and Freedoms. Suffragists would not have been happy (although perhaps not entirely surprised) to see that women had to be vigilant to gain official and explicit commitment to gender equality. It could still not be taken for granted as a standard for would-be democracies. The creation of the Charter was equally important for the occasion it offered for feminist self-criticism: feminists, like Canada itself, needed to admit internal diversity and different experiences. Without that, ‘rights and freedoms’ would remain partial rather than inclusive.
Women’s organization that submitted a brief to the Special Joint Committee:
Advisory Council on the Status of Women, Canadian Congress for Learning Opportunities for Women, Canadian Federation of Business and Professional Women, Canadian Federation of University Women, National Action Committee on the Status of Women, National Council of Women, National Association of Women and the Law, Voice of Women, Women’s Action Committee for Human Rights, Women for Political Action, Women’s Habitat, Women’s Christian Association, Women’s Research Centre (Vancouver). Only Advisory Council on the Status of Women, Canadian Congress for Learning Opportunities for Women, National Action Committee on the Status of Women, and National Association of Women and the Law appeared before the Commission. (Brooke et al., 1981; Canada’s Human Rights History, n.d.; University of Alberta Index, n.d.).
References and Further Readings
Baines, B. (2005). Section 28 of the Canadian Charter of Rights and Freedoms: A Purposive Interpretation. CJWL, 55-80.
Baines, B. (2000).Law v. Canada: Formatting Equality. Constitutional Forum, 11 (No. 3), 65-73
Bell, S. Women for Political Action. (1980). Letter to Senate-Commons Special Joint Committee on the Commons.
Brenner v. Canada (Secretary of State), (1997) 1 S.C.R. 358.
Brooke, J. Lessard, A., MacDonald, D., Sholsberg, A., & Wright, A. (1981). The Special Joint Committee on the Constitution of Canada. A statistical Account of Written Submissions. Research Branch, Library of Parliament.
Canadian Constitution Act (1982). Retrieved February 1, 2011 from http://laws-lois.justice.gc.ca/eng/Const/page-11.html#inc
The Canadian Charter of Rights and Freedoms. Retrieved February 1, 2011 from http://laws-lois.justice.gc.ca/eng/charter/
Canada’s Human Rights History. (n.d.). Special Joint Committee on the Constitution, 1980-1. Retrieved (April 4, 2012) from http://www.historyofrights.com/docs_committee.html.
Canadian Federation of Business and Professional Women. (1980). Women and the Charter of Rights. A Submission to the Special Joint Committee on the Canadian Constitution.
Hurly, M. (2007). Charter Equality Rights: Interpretation of Section 15 in Supreme Court of Canada Decisions. Library of Parliament (BP-402E). Retrieved February 10, 2012 from http://www.parl.gc.ca/Content/LOP/ResearchPublications/bp402-e.htm.
Law v. Canada (Minister of Employment and Immigration), (1999). 1 S.C.R. 497.
Manfredi, C. (2001). Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism. Oxford: Oxford University press.
Manfredi, C. (2004). Feminist Activism in the Supreme Court. Vancouver: University of British Columbia Press.
Majury, D. (2002). The Charter, women and equality rights: equivocation and celebration. Osgood Hall Law Journal, 40 (3, 4).
National Action Committee on the Status of Women. (1980). Presentation to the Senate and House of Commons Special Joint Committee on the Constitution of Canada. Ottawa, Ontario.
National Association of Women and the Law. (1980). Women’s Human Right to Equality: A Promise Unfulfilled. Submitted to the Special Joint Committee on the Constitution.
Native Women’s Association of Canada v. Canada, (19940. 3 S.C.R. 627.
Newfoundland (Treasury Board) v. N.A.P.E. (2004). 3 S.C.R. 381.
Northcote, A. Young Women’s Christian Association. (December 8, 1980). Letter to Senator Lamontage.
Roach, K. (2001). The Charter’s influential response to judicial activism. In The Supreme Court on Trial: Judicial Activism or Democratic dialogue. Toronto: Irwin Law.
Sawer, M. and Vickers, J. (2001). Women’s Constitutional Activism in Australia and Canada. Canadian Journal of Women and the Law, 13(1), pp. 1-36.
Smieciuch, D., Executive Director of Voice of Women. (November 21, 1980). Letter to Clerk of Committee of the Special Joint Committee on the Constitution.
Symes v. Canada, (1993) 4 S.C.R. 695.
Thibaudeau v. Canada, (1995). 2 S.C.R. 627.
Trociuk v. British Columbia (Attorney General), (2003) 1 S.C.R. 835.
University of Alberta. Index of Constitutional Submissions. Retrieved April 8, 2012 from http://www.ualberta.ca/~clement2/.
Vancouver Society of Immigrant and Visible Minority Women v. M.N.R, (1999) 1 S.C.R. 10.
Wilson, B. (1990). Will women judges really make a difference? Osgoode Hall Law journal, 28.
 Subsection (2) states: “Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.