When Prime Minister Pierre Elliot Trudeau sought to bring the Constitution under Canadian control from the United Kingdom and to draft a Canadian Charter of Rights and Freedoms, the ensuing process sparked national debate, division, and activist mobilization throughout the 1970s. It was women's mass mobilization, lobbying, and protest efforts, especially, that led to the inclusion of more robust gender equality rights with the enactment of Sections 28 and 15 in 1982 and 1985 within the Canadian Charter of Rights and Freedoms.
Protest and Unrest
Prior to the patriation of the constitution and related Charter discussions, women were frustrated by their lack of legal equality vis-à-vis men. Canadian equality rights were symbolically enshrined in the 1960 Bill of Rights; however, the Bill had limited legislative power. In its wording, women were equal BEFORE the law but not UNDER it: this wording translated to women's equality vis-à-vis one another but not equality with other groups, such as men.
Several Supreme Court rulings revealed the bill's lack of prowess: In the Supreme Court case of Bliss v. Canada (AG) (1978), Stella Bliss lost her case when she filed suit after losing her employment due to pregnancy.
In the 1973 Supreme Court decision of Canada (AG) v. Lavell, Jeannette Corbiere Lavell's case was also overruled when she lost her Indigenous status after marrying a white man, despite the fact that men retained their Indigenous status when they married white women.
Protesting the Supreme Court’s decision in the Jeanette Lavell case (1973) 10-001-S3-I1368. © University of Ottawa Archives and Special Collections
In response, Canada's largest official lobbying group—The National Action Committee on the Status of Women—declared October 22, 1973 a day of mourning to protest the Supreme Court's discriminatory ruling against Jeannette Lavell.
Status of Women News (1974) 10-185-S4-F4. © University of Ottawa Archives and Special Collections
In opening Charter debates in 1980, the federal government created a Special Joint Committee on the Constitution of Canada and invited public discourse and feedback on the proposed Canadian Charter of Rights and Freedoms. Both women and men, representing a multitude of groups and interests, furthered their advocacy work through briefs, letters, and presentations before the Special Joint Committee.
Three hundred and twenty-three groups and 639 individuals submitted briefs, letters, and telegrams to the Special Joint Committee (Library of Parliament, 1981, p.2, 32). The hearings were meant to last for 30 days, but instead went on for three months; the Committee sat for a total of 267 hours, between October 1980 and February 1981.
Québécois and Indigenous feminist groups took distinct paths in their valuing of Charter rights. The Fédération des femmes du Québec absented itself from Charter debates, as constitutional patriation conflicted with Québec nationalism, although francophone women's groups outside of Québec were active in presenting recommendations to the Committee to protect women's language rights (Bonnett, 1997, p.1). Indigenous women’s groups, such as the Native Women’s Association of Canada, submitted feedback to the Committee and highlighted the need for Indigenous self-governance as part of women's equality rights and the decolonization process.
An Ad Hoc Conference on Women and the Constitution also convened on February 14, 1981 to solidify and unify several women's groups' recommendations.
Approximately 300 women were expected; instead, close to 1300 attended (Perry, 1995, p.198). The attendees determined a series of resolutions, based on votes. These resolutions were presented to party leaders and their goals were facilitated by groups like the National Association of Women and the Law (NAWL).
The federal government conceded to make women equal “before and under the law," while the National Association of Women and the Law negotiated between the federal government and the Ad Hoc Committee on Women and the Constitution.
Along with other Ad Hoc members, NAWL pushed to create a Charter statement that guaranteed equality rights applied equally to women as to men: a statement which became Charter Section 28: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons" (Canadian Charter, 1982, s 28).
1983 NAWL Conference © University of Ottawa Archives and Special Collections
Section 15 of the Charter of Rights and Freedom came into effect three years after the enactment of the bulk of the Charter to allow provinces to amend or update their legislation in compliance with the Charter.
The Women’s Legal Education and Action Fund (LEAF) was founded the day Charter equality rights came into effect to ensure that women's legal equality rights were protected.
Legal scholars and LEAF volunteers, Hamilton and Koshan (2013), have studied Charter rulings for their effect on women's substantive equality and determined that while early equality Charter rulings have at times facilitated substantive equality, courts have taken varying approaches to equality cases and sometimes used stringent criteria to determine that discrimination has taken place (Hamilton & Koshan, 2013, pp. 27-28).
Debates continue concerning how best to facilitate gender equality with many proponents arguing that efforts should take place at both grassroots and judicial levels. Further methods, activist strategies, and enquiries are also needed to address the multitudinous discriminations that women experience as also rooted in race, sexual orientation, class, (dis)ability and ethnicity (Majury, 2002, p.303).
References
Attorney General of Canada v Lavell, [1974] SCR 1349 (upholding s. 12(1)(b) of the Indian Act, RSC 1970, c I-6.
Azzi, S. (2012, February 6). Constitution Act, 1982. Retrieved July 12, 2020, from https://thecanadianencyclopedia.ca/en/article/constitution-act-1982
Barnard, C., & Hepple, B. (2000). Substantive equality. The Cambridge Law Journal, 59(3), 562-585.
Bliss v. Attorney General of Canada (1978), [1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417.
Burt, S. (1988). The Charter of Rights and the Ad Hoc Lobby. Atlantis, Vol.14 No.1, 74-81.
Canada. (1980). Canadian Constitution 1980: Proposed resolution respecting the Constitution of Canada. Publications Canada. Retrieved fromhttps://primarydocuments.ca/the-canadian-constitution-1980-proposed-resolution-respecting-the-constitution-of-canada/
Canada. Library of Parliament, Research Branch. (1981). Statistical account of written submissions to the Special Joint Committee on the Constitution of Canada. Retrieved from https://historyofrights.ca/wp-content/uploads/SJC/statistics.pdf
Canada. (1982). Canadian Charter of Rights and Freedoms, s 15 and s 28, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982. Retrieved from https://laws-lois.justice.gc.ca/eng/const/page-15.html
Canadian Department of Justice. (n.d.). Canada’s system of justice: the Canadian Charter of Rights and Freedoms. Retrieved from https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/
Clément, D. (n.d.). Special Joint Committee on the Constitution. Retrieved July 14, 2020, from https://historyofrights.ca/archives/special-joint-committee-constitution-1980-1/
Dodek, A. (2018). The Charter debates: The Special Joint Committee on the Constitution, 1980-81, and the making of the Canadian Charter of Rights and Freedoms. University of Toronto Press.
Eliadis, F. P., & Khawja, R. (2000). The evolution of women's human rights in the Supreme Court of Canada. Canadian Issues, 12. Retrieved from Proquest.
Gill, A. (2010). In their finest hour: Deciphering the role of the Canadian Women's Movement in the formulation of the Charter of Rights and Freedoms (Publication No. MR69084) [Master's thesis, University of Ottawa]. Available from ProQuest Dissertations & Theses Global.
Koshan, J., & Hamilton, J. (2013). The continual reinvention of section 15 of the Charter. University of New Brunswick Law Journal, 64, 19–53.
LEAF's history. (2017, March 7). Retrieved July 14, 2020, from https://www.leaf.ca/about-leaf/history/
Lostracci, M. (2007). Every Canadian Needs a Copy [online image] from https://commons.wikimedia.org/wiki/File:Every_Canadian_Needs_A_Copy.jpg
Majury, D. (2002). The Charter, equality rights, and women: Equivocation and celebration. Osgoode Hall Law Journal, 40 (Nos. 3 & 4), 297-336.
Majury, D. (2016). Women’s (in)equality before and after the Charter (pp. 101–134). University of Toronto Press. https://doi.org/10.3138/9781442683617-004
McConnell, W.H. (2006, February 7). Canadian Bill of Rights. Retrieved July 29, 2020, from https://www.thecanadianencyclopedia.ca/en/article/canadian-bill-of-rights
Morton, F.L. and Pal, Leslie A. (1986). Bliss v. Attorney General of Canada: From legal defeat to political victory. Osgoode Hall Law Journal, 24.1, 141-160.
Mossman, M. (2018). Gender equality and the Canadian Charter: Making rights work for women. In P. Smith (Ed.), Making rights work. New York: Routledge.
Perry, B. (1994). The role of popular mobilizations in the struggle for the Canadian Charter of Rights and Freedoms. Crime, Law, and Social Change, 22(3), 183–212.
Sheppard, R. (2012, September 3). Patriation of the Constitution. Retrieved July 14, 2020, from https://www.thecanadianencyclopedia.ca/en/article/patriation-of-the-constitution
Shilton, E. (2015). Thirty years since the Charter’s equality provisions and LEAF’s founding. Where is equality now? LEAF/FAEJ Women's Legal Education and Action Fund. https://www.leaf.ca/thirty-years-since-the-charters-equality-provisions-and-leafs-founding-where-is-equality-now/
Thomson, K. E. (1993). The masterful construction: an analysis of liberal theories of equality [LL.M. degree in Law, University of Ottawa). http://dx.doi.org/10.20381/ruor-16664
Trudeau, P. E. (1978). A time for action: Toward the renewal of Canadian Federation. Government of Canada. Retrieved from https://primarydocuments.ca/wp-content/uploads/2018/03/ActionRenewalTrudeau1978Jun12.pdf
Archival Documents
"Constitute! : women's constitutional activism," 1981. Archives and Special Collections, University of Ottawa: 10-001-S1-F4170.
"LEAF Litigation Year One: A report from the first year of operation of the Women's Legal Education Action Fund," March 1986. Archives and Special Collections, University of Ottawa: 10-001-S1-F4170.
“Resolutions Adopted at The Conference on Canadian Women and the Constitution,” February 14-15, 1981. Archives and Special Collections, University of Ottawa: 10-112-S9-F1-01.
“Women and the Constitution Agenda,” February, 1981. Archives and Special Collections, University of Ottawa: 10-112-S9-F1.
CBC Digital Archives
A Time for Action: Pierre Trudeau’s call for constitutional change. Retrieved from https://www.cbc.ca/archives/entry/a-time-for-action
(2012). Woman recalls Charter fight to play boys' hockey. Retrieved from https://www.cbc.ca/news/canada/toronto/woman-recalls-charter-fight-to-play-boys-hockey-1.1187120
Schwartz, D. (2012). 6 big changes the Charter of Rights has brought.
from https://www.cbc.ca/news/canada/6-big-changes-the-charter-of-rights-has-brought-1.1244758
Rise Up! A Digital Archive of Feminist Activism
(1982).Native women and the Constitution. Native Women's Association of Canada Newsletter, Vol. 1, (5), 7-12. https://riseupfeministarchive.ca/publications/native-womens-association-of-canada-newslettera/nwac-newsletter-1-5-june1982-ocr/
Cameron, B. (1982). The Constitution: What did women gain? Union Woman, Vol. 5 (3). https://riseupfeministarchive.ca/publications/union-women/unionwoman-05-03-mar-april-1982/
Indian Rights for Indian Women. (1981). Native Women and the Constitution: An I.R.I.W. publication. Rise Up! from https://riseupfeministarchive.ca/activism/issues-actions/indigenous-womens-rights/iriw-natwomenconstition-1981-ocr/
Jackel, S. (1985). Women: Act now for equality! Alberta Status of Women Action Committee, Vol.6 (3), 8. https://riseupfeministarchive.ca/publications/alberta-status-of-women-action-committee-newsletter/albertastatusofwomenactioncommittee-06-03-april-1985/