-Charter as one among a limited number of potential tools to expose and to argue for the
redress of women’s and other marginalized groups’ subordination.
- We know that when we invoke the Charter we take a calculated risk, and we try to make these
calculations carefully and thoroughly. But we also know that to ignore the Charter is to ignore an
opportunity, as well as to concede the equality terrain to those who would use it to justify and
perpetuate inequality. This Charter pragmatism is consistent with the prevailing feminist
attitude to law more generally—a strong critique of law, coupled with a recognition of the
significance of law as a site of power and hence an arena for struggle, and of the
practical impossibility of eschewing law altogether.
- The Charter has become somewhat of a lightning rod in the larger debates about
parliamentary supremacy and judicial activism and about legal, as opposed to political,
engagement. Those commentators who are negative about the Charter tend to view the legal
and the political as separate arenas, implying that intervention is an either/or proposition. Those
who are more sanguine about the Charter generally see the two arenas as highly interrelated
and are often adept at playing one off against the other. The interplay between the courts and
the legislatures opens up additional spaces for public participation and arguably strengthens the
-Charter imposes a culturally and historically specific conceptual framework on people who do
not share that culture or that history. Forces conformity.
-S. 15 of the Charter. Equality. S.15 is too abstract and open-minded to be of concrete
assistance to women. Maybe courts understanding of
- Section 15 is not central in all of the cases and decisions of greatest significance to women,
because equality is not central to the betterment of women’s lives. On the other hand, it could
be that the impact of the Charter and section 15 is much more diffuse and relational—that the
Court’s understanding of substantive equality for women is filtering into its judgments, lower
courts’ decisions, and the arguments and expectations of those who appear before the courts.
-Example of Charters application resulting in state action. Abortion is one area in which our
elected representatives showed themselves undemocratic, neither federal or provincial
governments introduced legislation that would eliminate the criminal code restriction on abortion
that were in effect until 1988. R v. Morgantaler? Abortion rights. S.251 Criminal Code.
Therapeutic Abortion Committee- TAC: 3 doctors decide if abortion should happen. A Possible
example to use that represents legal and social change. Gendered issue.
- From an anti-choice perspective, the issue is solely the recognition of fetal rights; gender is
irrelevant because the woman is irrelevant. From a fathers’ rights perspective, often articulated
in conjunction with the fetal rights position but actually in some ways contradictory to it, the
issue is gender equality based on a formal equality model. -Violence against women is probably the area in which section 15 has been most
frequently argued before the Supreme Court of Canada. there have been at least a dozen
sexual assault cases in which sex equality has been referred to and has clearly informed the
analysis. Most of these cases involve the admissibility and use of confidential records relating to
the complainant. If pornography is included as a form of violence against women, the number of
Supreme Court Charter cases in this area rises to fifteen.
- However, the more recent decision in Shearing represents a step backwards. The majority
ruled that the accused could not cross-examine the complainant on the absence of entries in
her diary relating to the abuse in order to raise the presumption that if it was not recorded it
must not have happened. Then, in a sleight of hand, the majority ruled that the accused can
cross-examine the complainant on the absence of entries in her diary in order to test the
accuracy and completeness of her recollection of the events around the time that she was
-Shearing- Example- Ivon Shearing had appealed his convictions for sexual offences against
several women and children between 1965 and 1989. Shearing was the leader of a marginal
cult called the Kalbarians and had been convicted at trial of sexually assaulting his
housekeeper’s two daughters and five other “teenage disciples”.
At the trial, Shearing’s defence lawyer tried to cross-examine one of the complainants using her
diary which had been left behind at the commune and turned over to Shearing when discovered
by a cult follower. Defence counsel had wanted to cross-examine one of the complainants on
why she had not recorded the sexual abuse in her diary. The trial judge refused the defence’s
cross-examination on the absence of references to the abuse in the diary.
Based on the specific facts of this case, the Supreme Court however said: “The defence was
rightly prohibited from asking the jury to assume that if the abuse had occurred it would have
been recorded, but it does not follow that the defence should have been prohibited from
attempting to demonstrate its evidence before the jury using the diary”.
LEAF argued that the diary should have been returned to the complainant, its rightful owner.
Cross-examination based on sexist myths should have no place in a truth seeking process.
Unfortunately, the Supreme Court of Canada ruled that the trial judge erred in restricting the
accused’s cross-examination of a complainant’s diary in the Shearing case.
-Family Law - All family law cases are sex equality cases, including those arising between
lesbians or gay men or involving bisexuals or transgendered persons.
Example: In this case, M. brought a section 15 challenge against the definition of “spouse” in
Ontario’s Family Law Act that had the effect of extending the right to support upon relationship
breakdown to members of opposite-sex couples but not to same-sex couples. The challenge,
brought on the analogous ground of sexual orientation, was successful in overturning the
heterosexual definition of spouse. Although the action was between two separated lesbian
partners, the fact that the parties were both women was not a factor in the case. Gender was, however, a major subtext. Gender enters into the case in the discussions of the purpose behind
the state requiring that in some circumstances one part pay support to the other upon
These examples together provide the challenges made to law and legislation and display the
issue of gender rights. These examples ultimately exemplify charter pragmatism and show how
legal challenges can contribute to social change.
Looking at the issue of reasonable accommodation, discuss how it responds to Canadian
diversity and to what extent it represents principles of formal equality and/or substantive
equality? Be sure to define your terms.
Bouchard-Taylor Report:An investigation conducted by two professors from Quebec, Charles
Taylor and Gerard Bouchard at the instruction of Quebec Premier Jean Charest. This commission
was conducted in 2007 and its findings were reported back in 2008. The goal of this commission
was to investigate the issue of reasonable accommodation and in order to do so, Bouchard and
Taylor travelled across Quebec interviewing people of all diversities and holding hearings,
forums etc. to get different people’s takes on reasonable accommodation.After doing this, the
goal of the report was to create real “reasonable accommodation” for all cultural and religious
groups as well as dispel misconceptions about these groups.
ReasonableAccommodation: Reasonable accommodation is making reasonable allowances in
regulations/laws in order create fairness according to the needs of different cultural/religious
groups etc. They are the necessary modifications of rules to meet the needs of different groups of
people if they are based upon a recognizable discriminatory ground as long as they don’t impose
infringements or burdens on the rights of others.An example of reasonable accommodation is
the case of Gurbaj Multani, a Sikh student from Quebec who was granted the right to wear his
kirpan (ceremonial dagger) by the Supreme Court of Canada as it was a religious symbol that
showed no harm to the rights of anyone else.
This Question looks at Formal Equality vs Substantive Equality:
Formal Equality:Applying the same treatment to all people the same way. In the context of the
law, this would mean applying the law the same way to everyone, regardless of any outstanding
circumstances. Theoretically, formal equality treats everyone the same to create fairness amongst
people but in application we find that treating all people the same actually creates more
inequality because there are different social contexts that need to be considered. Substantive Equality- Taking different social circumstances and contexts into account when
deciding cases that may affect the way different cultural/racial/religious groups etc. live in the
same society. Strives to create equality in application because substantive equality looks at cases
specifically as to uncover the circumstances of a crime or a request/demand that conflicts with
legislation or infringes upon a person’s rights. It is different from formal equality because instead
of applying the law the same way and treating everyone the same way, substantive equality
points out that in order to create true equality, differences must be taken into account.
Bouchard-Taylor Report (In Detail):
- An investigation costing about $5.1 million which served the purpose of exploring the
issue of reasonable accommodation in regards to the needs of cultural/religious minority
- 900 briefs were submitted by groups, individuals, associations.
- 241 people testified during 31 days of hearings.