The Women’s Court of Canada is an innovative project bringing together academics, activists, and litigators in order literally to rewrite the Canadian Charter of Rights and Freedoms equality jurisprudence. Taking inspiration from Oscar Wilde, who once said “the only duty we owe to history is to rewrite it”, the Women’s Court operates as a virtual court, and ‘reconsiders’ leading equality decisions. The Women’s Court renders alternative decisions as a means of articulating fresh conceptions of substantive equality.
The first 6 decisions of the Women’s Court were published in the Canadian Journal of Women and the Law: (2006) 18 C.J.W.L. 27.
Introducing the Women’s Court of Canada
The Beginning . . .
8:00 PM, 27 February 2004—the end of a long day. Ten feminist equality/Charter activists, lawyers, and academics are sitting around a long table eating pasta and drinking red wine in an Italian restaurant in downtown Toronto. We have spent the day together talking about section 15 of the Charter—recent cases, recent losses. We have been pushing ourselves and our thinking, strengthening and developing our equality analysis, trying to respond to the challenges of intersectionality and of ‘‘competing rights.’’ We have been strategizing about how to move forward with our ideas. Over the course of the day, we have had moments of exhilaration, moments of intense debate and discussion, and some break-through eureka moments. It has been an exciting, productive day full of possibilities. Yet despite all of these positives, the day has been overshadowed by an overriding sense of gloom brought on by what we all see as grievous judicial backsliding on equality.
Symes v. Canada
The Supreme Court of Canada disallowed Ms. Symes, a self-employed woman, from claiming her childcare expenses as a business deduction for income tax purposes. The decision followed traditional tax analysis, which characterizes childcare expenses as personal expenses.
The Women’s Court takes a different view. Tax policy must take account of background social context. That context shows that women have suffered, and continue to suffer, social and economic inequities in their paid and unpaid work. The traditional tax treatment of childcare expenses is based on outdated cultural norms that privilege a conception of working life adapted to the needs of businessmen.
Law v. Canada
Law v. Canada uncovers the gender issues in a judgment originally decided on other grounds. Ms. Law challenged the fact that the Canada Pension Plan treats the surviving spouse of a deceased contributor differently depending on age, refusing benefits to those under 35 with no dependents.
In upholding this age exclusion, the Supreme Court failed to consider the complete picture of the program and its effects. Since most surviving spouses in all age groups are women, denying any assistance to those under a certain age affects mainly women.
In the opinion of the Women’s Court, treating women the same as men represented a misapplication of equality principles. It failed to take into account that couples tend to make life decisions that financially disadvantage the female partner. And it ignored the continuing reality that women still face more obstacles in the work arena.
Eaton v. Brant County Board of Education
Does it violate a child’s equality rights when a Special Education Tribunal confirms the placement of a disabled child in a special education class against the wishes of her parents?
The Supreme Court ruled that the Board of Education’s removal of the child from an integrated classroom was in her best interests.
In contrast, the Women’s Court of Canada finds that the “best interests” defense is not consistent with equality. In rejecting the presumption that Emily Eaton had a right to be educated in an integrated classroom, with the assistance she needed in that setting, the Supreme Court showed more concern for the interests of able-bodied children than those with disabilities.
Gosselin v. Quebec
Gosselin v. Quebec deals with an arbitrary age rule that placed citizens at risk of poverty. In the 1980s the Government of Quebec cut the welfare rate of those under 30 to 170 dollars a month. This was about a third of the amount deemed necessary to meet the basic costs of food and shelter.
The Supreme Court of Canada accepted the argument that young people could be treated differently because their circumstances were different.
The Women’s Court of Canada found that the policy’s distinction between under-30 welfare recipients and over-30 welfare recipients had nothing to do with differing needs or circumstances, but rather was based on negative stereotypes.
Newfoundland Treasury Board v. NAPE
The NAPE case is ultimately about money, and asks: is it fair to fight a deficit on the backs of women workers? In 1991, the government of Newfoundland and Labrador reneged on a pay equity agreement with women workers. The excuse was that the province faced a severe deficit.
The Supreme Court of Canada found that, ordinarily, budgetary considerations alone would not permit governments to violate equality rights. However, the Court went on to treat extraordinary cases of “fiscal crisis” as an exception.
The Women’s Court of Canada decision challenges this reasoning, from the general principle about monetary costs as a justification for rights violations to the very existence of a crisis and the assertion that alternatives were unavailable.
Native Women’s Association of Canada v. Canada
In Native Women’s Assn of Canada v. Canada, the Supreme Court of Canada upheld the federal government’s decision to exclude the Native Women’s Association of Canada (NWAC) from constitutional negotiations concerning the Aboriginal right to self-governance.
The Women’s Court of Canada decision finds that in the context of political representation, Aboriginal women’s equal right to speak requires that they not be compelled to do so through men or bargain with male dominated organizations, from a position of unequal power, for the expression of their concerns.