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Thirty years since the Charter's equality provisions and LEAF's founding, where is equality now?

| April 17, 2015
Thirty years since the Charter's equality provisions and LEAF's founding, where is equality now?

Women's rights activists and advocates worked hard during the pre-Charter constitutional negotiations to gain broad equality rights provisions in the 1982 Charter of Rights and Freedoms. When those provisions came into effect on April 17, 1985, the Women's Legal Education and Action Fund opened its doors to ensure that they would be given real meaning by the courts.

In its initial cases, LEAF addressed such relics as laws that prevented women from retaining their birth names after marriage. LEAF then quickly moved to tackle the pervasive problem of sexual violence. In the 1988 Canadian Newspapers Co. v. Canada (Attorney General) case, LEAF intervened to ensure that sexual assault victims would have a right to prevent publication of their names. Since then, LEAF has appeared before the courts many times to advocate for women who have been sexually assaulted. LEAF helped to convince the Supreme Court that silence does not mean consent (M(ML), 1992) that rape myths have no place in Canadian courts and that consent must be affirmatively communicated (Ewanchuk, 1999), that survivors of residential school sexual assault should be compensated (Blackwater v. Plint, 2005), that women sexual assault complainants with intellectual disabilities deserve equal access to justice (R. v. D.A.I., 2010), that unconscious women cannot consent (R. v J.A., 2011) and that women should not be deterred from reporting their assaults because they wear a niqab (R. v. N.S., 2012).

LEAF also went to court  to ensure that women’s past sexual history (Seaboyer, 1991) and medical records (O'Connor, 1995) were not fair game in sexual assault trials for defence counsel seeking evidence of sexual history or mental health problems to impugn their credibility. I was co-counsel in both these cases. In O'Connor, LEAF intervened in coalition with the Aboriginal Women's Council, the Disabled Women’s Network of Canada (DAWN) and the Canadian Association of Sexual Assault Centres. We argued that the counselling records of women alleging sexual assault should not be accessed by lawyers defending Bishop O'Connor, a priest and former residential school principal subsequently convicted of rape. In our view, the records sought had no relevance either to the facts of the case, or to the credibility of the witnesses. Although we were unsuccessful in court in both these cases, our courtroom advocacy formed the basis for our law reform work which resulted in legislative protections in the Criminal Code to prevent courtroom violations of women's privacy from compounding the violations of their bodies from sexual assault.

But law reform on issues involving sexual violence is still very incomplete, as we have recently been reminded by the horrendous death of Edmonton woman Cindy Gladue and by the treatment her death received at the hands of the law. The Crown’s extraordinary and unprecedented introduction of the most intimate of a woman’s body parts into evidence in that trial, along with arguments from defence counsel that Ms. Gladue died because she consented to the "rough sex" that resulted in a mortal wound to her vagina, show us how far the criminal justice system still has to go before women are respected and protected by its processes.  The jury verdict in that case, acquitting the man who inflicted that wound, reinforces a harsh reality of which we are already well aware in a country where over 1100 Indigenous women and girls have gone missing or been murdered since the Charter became part of our constitution -- he reality that women cannot count on the law to protect them from sexual violence either inside and outside the courtroom.

I became involved with LEAF in its heady early days when the Charter was new and the winds of change seemed to carry the promise that women’s equality was just over the horizon. Some gains have indeed been made over the three decades since the Charter’s equality rights provisions came into effect, but not for all women in Canada and certainly not for Cindy Gladue. There are very few national feminist organizations in Canada, and fewer still that fight in the courts to ensure women's equality rights are considered when legal decisions are made. I believe that LEAF’s work is more necessary than ever. Until women like Cindy Gladue and their families are treated by the law with respect, compassion and equality, we must continue that work.

Elizabeth Shilton is a Senior Fellow with the Centre for Law in the Contemporary Workplace at Queen's University and an Adjunct Professor at Queen's Law.  Prior to returning to school to complete her doctorate in law, she was the long-time managing partner of the Toronto law firm of Cavalluzzo Hayes Shilton McIntrye & Cornish, where she practiced labour/employment and equality law. While in practice, she represented LEAF and other equality-seeking organizations before the Supreme Court of Canada in a number of cases.  In the late 1980s and early 1990s she served as a board member of both LEAF and the LEAF Foundation, and twice co-chaired LEAF’s National Legal Committee. In 2010, she was among the "lawyers who have made a difference" honoured by LEAF as part of its 25th Anniversary celebrations.




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