Week 3 January 21, 2014
The Charter , Equality Rights & Women
Readings – Majury The Charter, equality rights and women – p.297336 & Women’s Court p.112 & Factum in N.S v. R
Law as a Tool of Social Change
Charter has reinvigorated debates about the place of law
Majury wants us to examine Law’s possibilities and its limitations, its seductions and its prophetic significance
Consider effectiveness, limitations, unintended consequences, political & social meanings of Charter efforts to promote social change. Examine areas where
the charter may fall short and the extent of how equality has implemented into society. This author uses a pragmatic approach to assess the charter.
pragmatism= a practical approach or analysis to problems and affair. We know that the chater is in place so its our job to look for issues and improvements of
the charter to challenge any forms of oppression and this is a pragmatic approach to assessing the chater.
Critiques of Rights Discourse & the Charter
in majurys article these are the critiques she states.
Developed primarily by white, male, Marxist left
Charter cedes power to the courts over the legislature (that is, issues of rights & citizenry wrested from the political arena)
ie rights decisions left to “unelected” judges who are largely unaccountable both a left & conservative claim
Courts as “undemocratic”
issues of citizens rights are being stripped by the political arena and we are seeing a shift in power as a result of the charter because more power is being
given to the courts to decide charter issues. These judges are not elected by the people. This may be a form of undermining democracy. Mandel made the
claim that these unelected judges are better options then legislation in deciding issues because they are closer to the citizens and have better understanding of
how laws affect society.
this critique of the charter comes from the left and the right, and that judges may be captured by political issues and more influenced by them then societal
issues, they may use the charter to promote political concerns rather then societal.
majury wants us to be cautions because the charter is a two edged sword so depending on the issue and judges there is no way to determine how a case will
be decided and both the left and the right have experienced victory and failures.
What might the problem be with electing judges?
Play to an electoral base
Promote themselves in the social & political arenas (i.e. tv ads playing to the fear of crime _ Judge So&so is tough on crime!”)
so much power is given to judges because they decide serious issues in society and they aren’t elected. There is tendency among critics to believe that judge
appointments are influence by political parties. In the U.S Supreme court the judges are appointed as in Canada but In the lower courts judges are elected.
This made judges focus on current issues in society to be reelected or elected.
Legislatures can be very bad protectors of minority rights:
Eg Canada has a long history of racist & sexist legislation; rape laws did not count for married couples before 1983, women were known as property and not
morally accountable or socially acceptable for decisions in society.
“Frequently what has happened in the courts has forced our elected representatives to take action on the human rights front” (Majury, 300).
Majury’s argument is that we shouldn’t view the legal and political arena as two separate arenas.
The courts have provided one forum in which to challenge majority dominance
There is something to be said for an independent judiciary w/ power to make unpopular decisions
This is part of the debate about parliamentary supremacy & judicial activism: are they separate arenas or is there interplay between them, does this
interplay strengthen the democratic process? (see Roach)
The Charter only applies to government action – thus it is criticized as reinforcing the distinction between public and private sphere. Rights are symmetrical:
no hierarchy of rights – which could be a positive thing or not
Ie. Discrimination on the basis of sex extends parallel, symmetrical protection to men & women equally both men and women experience sexual
discrimination and its only fair that they are both protected against discrimination; on the basis of race protects both minority & majority
When rights clash a women’s sexual history cannot be used as evidence In court. Some argue that equality provisions may violate other sections of that
charter and s.15 may clash with s.7 of the charter. When you are a defendant you have the right to make a full answer as evidence and you need all access to
any information to defend your case. In the contents of the sexual issue where consent to a sexual act is a main concern can this be used?
without substantive content: potential to be employed for almost any purpose.
Indeterminacy of rights could allow courts to reproduce and legitimize status quo
Charter only applies to government action – thus criticized as reinforcing the distinction between public and private
Who has to comply with the Charter? against whom can you bring a lawsuit for violating the Charter?
Exclusive application to government action.
Power imbalance structured along the lines of ‘equal’ private actors & a ‘heavyhanded interventionist state’
But private actors (individuals, corporations & institutions) are immune from having to adhere to Charter values
it is criticized for reinforcing certain things such as the separation of public and private sectors
Charter creates an illusion of shared values & aspirations
Ie. We all believe in freedoms: security of the person, freedom of expression, & so on
But people differ on where rights begin & end
The rights contained in the Charter are vague, and can be interpreted in very different ways
Does security of the person create a right to generous welfare benefits?
Does freedom of expression create a right to hate speech?
These are political questions…
people on the left and the right have asserted skepticism on the value of the charter because of the different interpretations it can hold because of its
Rights are individualistic
– not groupbased; thus violations are directed at the level of the individual
This understanding works to depoliticize issues of power & domination
But there has been much backlash against Charter decisions = a proof against the claim of Charter depoliticization
depoliticize – deprive something of a political nature and rendering an issue apolitical and removing it from the political arena.
the criticism here is that the depoliticalization of gender avoids a critical perspective on society and makes it easier to avoid discussion about oppression
because you have stripped something of its political nature.
A Pragmatic Approach to the Charter
Feminists have tended to see the Charter as part of a bigger picture & a longerterm strategy.
They perceive these critiques as cautions or concerns, rather than reasons to reject the Charter.
The Charter is seen as a forum for raising issues and important to develop more sophisticated analysis and mobilizing the politicalization of an issue. Majury wants to state that the outcome of the issues in cases are less important and negative charter decisions provide the opportunity for rethinking and
strategies for future action. Even in cases that don’t work in the way that we want in decisions the important thing to remember that knowledge is being
produced, and future strategies can be perfected.
being aware of the dangers or disappointments of the charter majury notes that the charter is still a limited tool to our social change and while it offers risks it
also offers opportunities.
What is “Equality” ?
Appealing to Charter =Danger of focusing on formal rather than substantive equality because everyone in the liberal paradigm is to treat everyone the same
and the problem is that we know that we are not all equal before the law and this makes it hard to fight oppression.
One of the biggest dangers of applying the charter is the dominant …. 46:52
Formal Equality: means treating likes alike & is about same treatment.
But idea that persons are formal equals, masks real social inequalities
Focuses on procedures with goal of equal opportunity.
Equal application of law
in order to further equality, policies and practices need to respond to historically and socially based difference
In order to be treated equally, dominant & subordinate groups may need to be treated differently.
Identifying equality with only equal treatment (formal equality) ignores differences in society and ignoring these differences means that we are going to
continue to disadvantage people in these groups. This is a reproduction of sexual, racial and class inequality. A further difficulty with formal equality is that
applying it to all people does not acknowledge difference. Ex. Neutral approach to make all workers work one Saturday a month does not include difference of
people including people that have religious obligations and cant work Saturdays. Applies equality neutrally and formally to all people but ignores and does not
consider the differences of people and the issues it may cause for them.
Equality isn’t just about providing opportunities but also about the outcomes of implementing that equality.
Cases: Violence Against Women
Sexual assault cases in which accused seek access to complainant’s confidential records (e.g. psychiatrist’s records; diary) Tactics
used to harass & intimidate complainants & to put complaint’s behaviour on trial
Charter rights to fair trial invoked by accused to strike down legislative limits on access designed to protect woman’s privacy
Not yet clear whether court fully favours substantive or formal equality approach
“I fear that the Court believes it has eliminated the sexual inequalities relating to sexual assault such that it can now revert to being dealt with as a gender
neutral offence” (Majury, 322).
s.15 is most used for sexual inequalities. The SCC has sent mixed signals between formal and substantive equality and its not sure what approach of equality
R. v. N.S
Allegation of sexual assault on two males who were in her community. In the original trial she was asked to removed her niqab before she could testify for
religious grounds which leads to court of appeal. She wants a right to wear it in court. The accused are part of her community and they argue that if she
testifies with her head scarf it’s a problem because the evidence of her facial expressions will be lost and will hurt the defendants case and affects their ability
to full answer and defense.
if women are not allowed to keep the head scarf on it may prevent them from bringing further matters to the court and may oppress them in society.
Mckinney is a professor and Is upset that there is a mandatory age of retirement and this is problematic for women who have to take breaks from working to
raise families etc. and forcing a retirement age is problematic for her and this is age discrimination and s.15 protects you on the basis of age and people can still function after 65. This goes to SCC and the court needs to decide is if Guelph university is even applicable to the charter and they decide that universities
are not part of government and the mandatory age of governments does not breach the charter, but the SCC goes through an analysis anyways.
They look at s.15 and the retirement policy and state that mandatory retirement violates the charter but its justified under s.1 for the public necessity to have
new professors hired.
the dissent in this decision talkes about the important gender dimsension.
Application of Charter only to state action is particularly problematic here
McKinney v. U of Guelph  3 SCR 229
Mandatory retirement case (age discrimination) turns on whether universities are public or private
But mandatory retirement is very important public policy issue
There is a disparate impact of mandatory retirement policies on poor people & on women in particular.
Important gendered dimension
Identified by female judges on SCC in dissent
Women more likely to have interrupted work histories and to be in jobs that lack pension plan coverage
Thus women are more likely to have lower pensions or no pensions & thus impact of mandatory retirement has a disproportionate impact on women
gender dimensions identified by the dissent in this case.
Cases: SocioEconomic Claims
Legislatures cutting social programs (welfare, disability)
Activists launched Charter cases to counter these efforts
These cases ask courts to find Charter right to existence of program or level of benefit
Courts reluctant to recognize these “positive rights”
(eg. Requires govt to identify right of social assistance)
Positive right = those rights which permit or oblige action.
Traditional approach to equality law prevents govt from treating people differently by reference to their personal characteristics. The prohibition on
discrimination is a classic example of a negative obligation and the purpose is to prevent certain things and we want to prevent govt from treating people
differently based on certain characteristics.
in terms of the charter the Critics and the pragmatists are both right
Cases show Charter is full “of problems, of analysis and of results”
but For all its faults, Charter can be an important tool for mobilization and reflection
Also: its restraints are same as those of mainstream society – all of those issues that the charter is struggling under are the same issues in mainstream
society. Individualism, privledges, neut