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Thirty-five years of the Charter marks 32 years of equality rights

Image: Wikimedia Commons/	Marc Lostracci

Canada's 150th anniversary is also our 35th year with an entrenched Charter of Rights. Although entrenchment was hotly debated at the time (late 1970s through '82), Canadians have embraced having our own Charter with a pride -- as Supreme Court Chief Justice Beverley McLachlin noted -- matched only by our passion for hockey and health care.

However, when the Charter was proclaimed on April 17, 1982, the Equality Rights clause (Section 15) was put under a three-year moratorium, to allow the federal, provincial and territorial governments time to bring their existing laws into compliance -- just in case, you know, some legislation happened to discriminate against women or minority groups.

Women's groups certainly had voiced concerns about inequality in law and in government policies. During constitutional debates in 1980, the National Association of Women and Law (NAWL), the Canadian Advisory Council on the Status of Women (CACSW), and the National Action Committee on the Status of Women (NAC) made presentations that convinced the Justice Minister to make changes in the draft constitutional document.

Instead of "Non-discrimination Rights," Section 15 became "Equality Rights," with reinforced wording that doubles up protection for equality "before and under" the law, as well as equal "benefit and protection" of the law.

In April 17, 1985, Section 15 came into effect:
"15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability..." (Subsection (2) provides for affirmative action programs.)

Women made more changes to the constitution after that too, as described in my 1983 book, The Taking of Twenty-Eight: Women Challenge the Constitution. An Ad Hoc Committee on Women and the Constitution rocked Ottawa with political events.

  • Doris Anderson made headlines by resigning as CACSW Chair, citing political interference in an independent agency;
  • 1,300 women held a spontaneous national conference in the Senate on Valentine's Day 1981;  
  • Conference representatives lobbied the federal government until it added Section 28 to the Charter (Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons);
  • When a federal-provincial agreement tried to subordinate Section 28, women across Canada lobbied their provincial Premiers and got the Section's primacy reinstated;
  • and women set up LEAF, the Women's Legal Education Action Fund, to support pro-active litigation.  

Thirty-five years later (well, really 32), some feminists are looking back at Section 15 and trying to evaluate how well the double-wording has worked. Let's hear from the nay-sayers first.

Law professor Beverly Baines says feminists have been "disappointed" with the results of nine gender-specific cases that cited Section 15. Political scientists Naomi Black and Louise Carbert published a "counterfactual" paper saying that Sections 15 and 28 have had such little effect that the Ad Hoc Committee might as well not have happened. The Honorable Lorna Marsden published a history of Canadian women's activism that didn't mention the Ad Hoc campaign at all.

On the other hand, hindsight is easy. Every court case is a crapshoot, and unintended effects can be meaningful too. When I look back over the social changes since 1982, I see a couple of major trends that can be attributed to Section 15 and the effects of the Ad Hoc Committee. For starters, other groups have used Section 15 with stunning success.

"The Charter has been an effective tool in challenging the denial of formal legal equality of lesbians and gay men," Brenda Cossman wrote in the Osgoode Hall Law Journal. "Laws that discriminate against lesbian and gay individuals and relationships have been struck down, and legislatures have been forced to amend their laws to extend formal legal equality..."

Canada is only the fourth country in the world to recognize same-sex marriage. Our LGBTQ communities went from being vulnerable outlaws to being protected, in less than 20 years.

In 1981, Toronto police arrested 300 men for being caught naked in bathhouses. Their legal defense committee developed into a legal strategy group called EGALE. Citing Section 15, EGALE brought LGBTQ Canadians into equality, case by case. By 1998, all of Canada's Human Rights Acts protected individuals from discrimination based on sexual orientation. Section 15 does work, or at least did work for them.

As for the Ad Hoc Committee, I think it was a turning point for Canadian women, similar to the Royal Commission on the Status of Women. Ad Hockers mobilized political networks and politicized personal networks, and in so doing, they cracked the glass ceilings in politics and in the judiciary.

Let's put legal action to the side for a moment. Participation and access are other ways to measure progress, and both increased dramatically after the Ad Hoc action.  According to Equal Voice, from 1921-1980, for 60 years, the House of Commons rarely saw more than five women MPs at a time. Fourteen was the most who'd served together.

After the Ad Hoc Committee actions, women's participation in federal politics quadrupled from 1980 (14 women MPs) to 1997 (62 women elected), increasing by about a dozen each time. Women's participation dropped a bit during Stephen Harper's government, but 88 women were elected in 2015, or 26 per cent of MPs.

Likewise, women's groups had been lobbying for a woman Supreme Court Justice for years and years. Remember, until Bertha Wilson was appointed in 1982, no woman had ever served on SCOC from its founding in 1875. Since then, eight women have been Supreme Court Justices, in 35 years: Bertha Wilson, Claire L'Heureux-Dubé, Chief Justic Beverly McLachlin, Louise Arbour, Marie Deschamps, Rosalie Abella, Louise Charron, and Suzanne Coté.

Women gained greater access to lower judicial levels too, suddenly winning between 30 - 50 per cent of judicial appointments (30 percent under Harper) and nearly half of all appointments under Justin Trudeau.

So in my opinion, both Ad Hockers and Section 15 have been effective in promoting equality, just maybe not the kind of equality anyone expected. Never mind. Before 1998, members of LGBTQ communities faced overt discrimination in jobs and housing, and possible violence on the streets. We all gain from their progress.

And what about Section 28? Trudeau scholar Kerri Froc says Section 28 hasn't been given a fair chance yet.  Immediately in 1985, male plaintiffs filed complaints citing Section 28, seeking to define equality as "equal treatment" despite Section 15's promise of "equal benefit and protection" of the law. In women's cases where 28 might have been helpful, their lawyers haven't cited 28. 

But at least one other party thinks that Section 28's wording has merit. The United Nations adopted the wording for the Declaration on the Rights of Indigenous People, where it appears as Article 44: "All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals."

Thirty-five years after Charterhood, Canadians have made one great leap towards gender equality, in my opinion, and set the wheels in motion for gender parity in the legislatures and the courts. All that, and contributing a phrase to the international language of human rights. Not a bad start on a road that our LGBTQ friends have already made shorter.

Image: Wikimedia Commons/Marc Lostracci

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