S. 15 of the Charter of Rights and Freedoms and The Pursuit of Gender Equality in Canada

Share

Canadian Charter

In 1982, the Canadian Constitution was repatriated and supplemented with the Charter of Rights and Freedoms.  Despite the inclusion of Section 15, which prohibits discrimination on the basis of sex while allowing affirmative action, and Section 25 that ensures that all rights inherent in the Charter are guaranteed equally to men and women, Second Wave feminism, which had been critical to improving the Charter, remained concerned about legal equality. While many Canadian feminists were ‘charter pragmatists’ (Majury, 2002), they remained aware that the symmetrical, universal, abstract, and individual nature of rights could render power, domination, and disadvantage depoliticized at best and justified at worst, in other words that ‘the ideology of formal equality masks and neutralizes inequality’ (Majury, 2002, 301).

Feminists foresaw the possibility that the Charter, for all its good work, would not ensure that rights were not interpreted in such a way as to reproduce or stabilize existing inequalities.   In fact, the first cases involving s. 15 that came forward to the Supreme Court of Canada (SCC) addressed men’s rights.  In R. v. Nguyen and R. v. Hess, which involved men charged for sexual intercourse with girls under age 14, both defendants claimed that the Criminal Code violated s. 15 because it applied only to male perpetrators and female victims.  In another case, Weatherall v. Canada (Attorney General), a male plaintiff objected to the frisking and surveillance of male prisoners by female guards when female inmates were not subject to the same attention by male guards.  In both cases, however, no violation was found – in the first because of a “biological fact” (4) and in the second because “differential treatment may be called for in certain cases to promote equality” (3).  These rulings recognized differential need and gendered power dynamics.

Between the date of the initial cases (1990) and 2013, the SCC has heard seven cases involving women’s rights and one involving men’s.  Of the seven, only two violations were found and one was deemed justifiable “in a free and democratic society” (Section 1).   In the only case – Brenner v. Canada (1997) – that involved claims to citizenship, where the requirements were much more onerous for the children of Canadian women than they were for offspring of Canadian men was a violation was found and deemed unjustifiable.  Although the appellant and claimant  (and eventual recipient) of the benefit was a man, the distinction in the legislation, was recognized as discriminating against women as mothers.

In the second case finding a violation , Newfoundland vs. N.A.P.E. (2004), Newfoundland’s largest union was challenging the deferral of the province’s promise of pay equity. The Court agreed that inaction violated sex equality but accepted  the provincial justification of  a “pressing and substantial” financial crisis.   This case embodied the early concerns of women’s groups about the “Mack Truck” implications of s. 1.  As the Court itself recognized, budgetary pressures will always be present, meaning that the formal right to equality may not be enforceable. One other case, Trociuk v. British Columbia (2003), found a violation of s. 15. As in Brenner, this was deemed unjustifiable in a way that benefited men. Concluding that men’s dignity was affected, the SCC ordered a suspension of BC regulations that permitted the absolute exclusion of fathers from birth registration and the naming of children.

In the two cases where no violation was found, the female minority (Justices L’Heureux‑Dubé and McLachlin) of Supreme Court Justices dissented. In 1993 Symes v. Canada asked whether women could deduct childcare expenses as business costs.  While agreeing that women were responsible for a disproportionate amount of childcare, the SCC male majority argued there was no proof of disproportionate responsibility for the cost of childcare.   The dissent provided a pragmatic reminder of real life. In 1995 Thibaudeau v. Canada, the unequal tax burden on single parents, the majority of whom were and are women, was not found to violate s. 15. Again, both female judges dissented. The majority decisions suggest that women’s groups, along with first female Supreme Court Justice Bertha Wilson (1992) were correct in anticipating that female judges would bring another perspective to deliberations.[1]    In Eric V. Lola, all four female judges (and one male judge) found that family law in Quebec did violate women’s s. 15 rights, but Justice McLachlin found that the violation was justified under s. 1 and the legislation under question was saved.

Women’s legal activism extends beyond the judicial bench and has thrived since the establishment of the Charter. Established in in 1984 and incorporated in 1985, the Women’s Legal Action and Education Fund (LEAF) aimed to “use litigation as a vehicle for change” (LEAF).  Since then, LEAF and its ten member organizations, like West Coast Leaf, has acted as an intervener in 150 cases where substantive equality for women and girls is at stake.  In recent years LEAF has served as an intervener regarding the definition of consent, access to justice, the substantive effect of social programs on equality, and the consequences of family law for women (Leaf Cases, 2012, 2013).

While LEAF continues to use litigation to pursue change, the administration of Conservative Stephen Harper discontinued the Court Challenges program designed to assist individuals in pursuing a legal case against Ottawa in 2006. The cancellation occurred despite an independent review that endorsed the program’s purpose and operation. The loss of the program has significantly undermined the capacity for legal action against any level of government.

As a prized piece of contemporary Canadian identity and a supposed tool for the equality, the Charter has failed to live up to early hopes.  In over three decades, s. 15 has lead to changes in just one piece of legislation. With the cancellation of the Court Challenges Program and the failure of challenges to produce meaningful changes, LEAF’s role as an intervener in cases involving women’s rights, but not necessarily based on s. 15 challenges, is critical in the pursuit of gender equality. Its leadership confirms the value of an active women’s movement in monitoring governments that otherwise too often seem oblivious or even hostile to the pursuit of gender equality.

 

CASE

RIGHTS INVOLVED

VIOLATION

S. 1 JUSTIFICATION

INVALIDATION OR AMENDEMENT

WOMEN JUDGES

Nguyen and Hess (1990)

Men’s

Majority found no violation, because of ‘biological fact’. Minority found S. 15 violation but that limitation was justified under s. 1 to protect young girls and society N/A Both the minority and majority groups contained female justices.
Weatherall (1993)

Men’s

No violation.   Equality does not require identical treatment. Even if violation had been found, it would  justified under s. 1 to achieve employment equity and because of humanizing effect of female guards. N/A Decision was unanimous.
Symes (1993)

Women’s

Majority found no violation, because it was not proven that women are responsible primarily for childcare costs.  Minority dissent claimed the law did have a different effect on women. Not applicable to majority opinion.   Minority found no justification could be made under s. 1 N/A Both female judges dissented, finding a s. 15 violation of women’s right to equality.
Native Women’s Association (1994)

Women’s

No s. 15 or s. 28 violation found because government was under no positive obligation to provide funding. N/A N/A Decision was unanimous.
Thibaudeau (1995)

Women’s

Majority found no violation, because differential burden not proven.  Minority dissent claimed there was a s. 15 violation because of adverse effect on single custodial parents (analogous grounds) who were primarily women (enumerated grounds). Not applicable to majority opinion.   Minority found no justification could be made under s. 1 Both female judges dissented, finding a s. 15 violation of women’s right to equality.
Brenner v. Canada (1997)

Women’s[2]

Violation of s. 15 established – more onerous process and requirements required of children of Canadian mothers than Canadian fathers. Limitation not justifiable under s. 1, since the means were not rationally connected to the objective. The legislation was found to be of no force and effect. 

 

Decision unanimous
Vancouver Society of Immigrant and Visible Minority Women v. M.N.R. (1990)

Women’s

No violation found.  Decision on status on charitable organization based on activities not clients characteristics. N/A N/A Ruling on s. 15 was unanimous.
Trociuk v. British Columbia (2003)

Men’s

The absolution exclusion of father’s from birth registration and the naming of children inflicts harm to the dignity of men and is a violation of s. 15 Limitation on men’s right to equality not justifiable under s. 1 because it did not impair the rights as little as possible. Specific provisions were suspended for 12 months, to become of no force and effect without the necessary changes.   In fact, amendments had been made by BC vital statistics before the decision. Decision was unanimous.
Newfoundland (Treasury Board) v. N.A.P.E. (2004)

Women’s

S. 15 violation found, since the legislation imposed a financial burden on women. Limitation of women’s right to equality justified on the basis of s. 1 as a result of the exceptional fiscal crisis. N/A Decision was unanimous
Eric v. Lola (2013)

Women’s

Majority found S. 15 violation, because as Justice Abella wrote “fairness requires that we look at the content of the relationship’s social package, not at how it is wrapped”. Limitation was deemed justifiable by one judge who found violation.  As a result, legislation was deemed constitutional. All four women Justices (and one man) decided there was a s. 15 violation. Three of the four women justices (and one man) decided it was not justifiable.

 

Table 2 –

Women

Men

Number of cases

7 (70% of all cases)

3 (30% of all cases)

Violation Found

2

(29% of cases involving women’s right)

1

(33% of cases involving men’s right)

Violation Justified 1  (33% of violations of women’s rights)

0

(0% of violations of men’s rights)

 

 

 

Note: Parts of article initially submitted as a paper for Political Science 504C at the University of British Columbia

 

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.


[1] Justice Bertha Wilson argues that there are large portions of the law (including contract law, for example) where a unique female perspective does not exist, but in other areas of law,  “I think that a distinctly male perspective is clearly discernible and has resulted in legal principles that are not fundamentally sound and should be revisited as and when the opportunity presents itself” (1992).

[2] The appellant and claimant to the benefit was a man. The distinction in the legislation, however, discriminated against women.

Lore, Grace

Lore, Grace

PhD Student in the Department of Political Science - University of British Columbia

This article was written by: Lore, Grace

PhD Student in the Department of Political Science - University of British Columbia