On the evening of March 6, 2008, a group of mostly female lawyers and law students arrived at the downtown Toronto campus of York University’s Osgoode Hall Law School for the official launch of the Women’s Court of Canada. Columnist Heather Mallick hosted the event, which was followed by a wine and cheese reception.
Instead of hearing passionate speeches about women’s rights and the challenges of seeking equality, the crowd listened to Rosemary Cairns Way of the University of Ottawa’s faculty of law – a trained opera singer – sing Section 15 of the Canadian Charter of Rights and Freedoms as an aria. Then, Natasha Bakht, also of the University of Ottawa law faculty, performed an original dance to the prerecorded sound of the members of the women’s court reading out judgments. Then dub poet Evalyn Parry delivered an original piece called “Parry v. revision: who will win?”
It was an unexpected – and by all reports, very entertaining – official start to a unique project.
The Women’s Court of Canada is not a bricks-and-mortar court, nor a legally binding one, but a loose collective of female lawyers, academics and activists who rewrite judgments. The court began with 10 women, most of them well-known in the field, such as activist Shelagh Day, academic Denise Réaume and Native rights lawyer and activist Sharon McIvor. Its first six judgments reworked six key equality-related decisions of the Supreme Court of Canada and were published in 2008 in the Canadian Journal of Women and the Law.
The goal of these parallel judgments is to see what equality – as defined under Section 15 of the charter, enacted into law in 1982 – could look like if it took priority in these decisions. All the verdicts came to different conclusions than the original court judgments. Using equality-based arguments, the women’s court, for example, awarded a young widow full Canada Pension Plan survivor benefits when her husband died, allowed a businesswoman to claim childcare costs as a business expense, and maintained pay equity payments for government workers in Newfoundland despite budgetary constraints.
Court members say writing judgments has helped them to better understand equality, as well as to see the law from a judge’s perspective. For the women involved who have a connection to academia – which is most of them – the judgments have become a teaching tool and also a form of academic writing that posits concrete solutions instead of just being critical.
“This is just an academic exercise dressed up as judgments,” says Kasari Govender, legal director of the West Coast Women’s Legal Education and Action Fund (known as LEAF), and a newer member of the woman’s court. And while these shadow judgments have no legal standing, they’ve been almost universally well received as an exercise that embodies democratic and critical thinking and moves forward the fuzzy notion of true equality.
Four years before the launch, on a less joyous occasion, a group of women working in equality jurisprudence met in Toronto for a LEAF-organized colloquium, “In Pursuit of Substantive Equality.” The lawyers, academics and activists present discussed the landmark 1999 case that saw 30-year-old widow Nancy Law challenge the government to offer her full Canada Pension Plan survivor benefits. Under the CPP, a surviving spouse below the age of 35, not disabled and without dependents, does not qualify for benefits until the age of 65. Citing Section 15 of the charter, Ms. Law claimed she was being discriminated against on the basis of age. She lost; the Supreme Court concluded that the distinction drawn by the law is not discriminatory.
This was a pivotal case. Prior to 1982, under the Canadian Bill of Rights, equality was narrowly defined and led to verdicts such as the 1979 case that said discriminating against someone who was pregnant was not sex discrimination. Section 15 was supposed to remedy this by offering a broader definition.
Experts call this definition substantive equality – it takes into account the disadvantages related to gender, race and other differences; and the Supreme Court had previously embraced the idea of substantive equality. But its precise meaning was unclear, so in the Nancy Law verdict, the Supreme Court tried to clarify by outlining a three-step test for determining whether equality rights were infringed. Now, lawyers had to show that the law treated the claimant differently based on one of the grounds identified by the charter as potentially discriminatory – such as gender or race – and that the differential treatment led to a violation of the claimant’s “human dignity.”
“The way that this new test has been used has made it harder to prove inequality,” says Denise Réaume, professor of law at the University of Toronto. Subsequent verdicts were being influenced by this decision, and plaintiffs were losing equality cases. “There was a real sense that there was a continual retreat into a very formal definition of equality,” says Fay Faraday, a social justice lawyer and adjunct professor at York University’s Osgoode Hall Law School. “Every time we made two steps forward, it was two steps back.”
After day one of the colloquium, the mood was grim. “We were feeling very discouraged,” recalls Shelagh Day, director of the Poverty and Human Rights Centre in Vancouver. A group went out for dinner to talk about the legal mess they were in.
Someone made a snide comment about the Supreme Court and its incomprehensible writing. Then Ms. Day said: “We could do a better job of writing these decisions than they do!” Everyone laughed. Yet this had been done before: groups in the U.S. had rewritten the abortion case Roe v. Wade and the racial segregation suit Brown v. Board of Education, plus lawyers often run mock trials and war-crimes tribunals. Soon enough, the women were asking each other which case they’d like to tackle.
The women’s court began to take shape as participants picked their cases. Professor Réaume chose Law v. Canada, as she’d written about dignity in human rights cases and wanted to see how her definition would influence the pivotal judgment. Jennifer Koshan, associate professor in the faculty of law at the University of Calgary, had run workshops on the 2004 case Newfoundland v. NAPE (Newfoundland Association of Public Employees) and already knew how she’d argue that equality rights should never be sacrificed because of monetary concerns. Ms. Day and three others got to work on Gosselin v. Quebec, a 2002 case that challenged the fairness of the Quebec government paying lower social assistance rates to people under 30. Although not present at the LEAF meeting, Sharon McIvor was quickly convinced to rewrite the 1994 case Native Women’s Association of Canada v. Canada, which challenged the fairness of not funding Native women’s groups in the Charlottetown Accord, as it had men’s groups (she was president of the association at the time the case was tried). Diana Majury, a law professor and associate dean of the faculty of public affairs at Carleton University, took over administrative duties and wrote the introduction to the women’s court.
Although similarly driven to write decisions, everyone had their own ideas of the point of the project. “I confess I thought this would make for great teaching materials,” says Professor Réaume. Calgary’s Professor Koshan wanted to take control of trials that equality lawyers kept losing. “We’ve all been working in this area a long time, feeling that our work wasn’t having an impact. It was time to try something different.”
Eighteen months later, in the fall of 2005, Melina Buckley, a Vancouver lawyer, policy consultant and lecturer who was writing about the 1993 Symes v. Canada childcare tax case, had secured enough funding for a two-day meeting at a resort outside Toronto where women’s court members could read each other’s drafts, debate the meaning of equality, and dance and drink wine. (Professor Koshan arrived first, and the staff member at the front desk asked: “Are you one of the judges?” “Oh my God, we’re going to get caught!” Professor Majury thought when she heard this.)
By this point, everyone was writing, nights and weekends. “It took months and months to write these judgments. Everyone was surprised at how much work it was,” recalls Professor Réaume.
By early 2008, the decisions were done. The women’s court got funding from the Law Society of Ontario for the launch, and the 10 members waited for everyone to call them a bunch of angry radicals. Several members had argued in front of the Supreme Court in the past and were worried there’d be repercussions when they did again. Instead, other lawyers and even judges told them they thought the project was a great idea and that the judgments were crafted well enough to be cited in a real court.
“The main reason they’ve been well received is that they have taken such care to engage respectfully with the challenges of adjudication,” says Bruce Ryder, assistant dean at Osgoode Hall Law School. He thinks the extensive peer review process the women’s court follows shows in the quality of the judgments, which he uses in classes on anti-discrimination law and equality rights.
There have been some quibbles. A judge told LEAF’s Ms. Govender: “No way judges can write a decision like that” – a comment she didn’t fully understand and felt it was disrespectful to ask for clarification. Professor Ryder would have liked a different name for the court, because he feels equality rights experts like himself have been excluded.
Along with Professor Ryder, women’s court members Koshan, Majury and Réaume have taught the judgments – Professor Majury has even heard of women’s studies classes using them – and all have found students are initially shocked that it’s possible to question a high court.
“When students read a Supreme Court decision, they think that it’s written in stone,” says Professor Majury. The decisions, she says, help “get them to be more critical of what’s going on, to see other ways they could go.” For Professor Koshan, the lead author on an article for Canadian Legal Education Annual Review 2010 on teaching the decisions, they also inspire students who are passionate about social justice.
“These people are very encouraged by the women’s court. They want to feel … they can work in the law in a way that moves society along, in a way that seems progressive and positive.”
In the three years since its launch, the women’s court has become known across Canada and the world. Groups are now setting up versions in Australia and South Africa. Three female academics in the U.K. put together an impressive 23 judgments and published them in a book last year. Rosemary Hunter of the University of Kent and Clare McGlynn and Erika Rackley of Durham University heard about the Canadian project before the launch, in 2007, quickly organized the Feminist Judgment Project, and put out a call for writers. The three made the project a priority and secured significant funding. “We just said this is our academic work,” says Professor Hunter.
But here in Canada, the women’s court is still very much a corner-of-the-desk affair. A new bunch of lawyers, activists and students are penning new judgments; court membership is now around 20. Some, like Fay Faraday, are writing individual judgments to be published one by one. Ms. Govender and others, meanwhile, are tackling two pivotal cases: the first Section 15 case, 1989 Andrews v. Law Society of British Columbia, where British-born Mark Andrews challenged the fairness of being refused admission to the bar in B.C., and the most recent one, the 2008 R v. Kapp decision, which challenged that Native fishing rights on the Fraser River were unfair to commercial fisherman. Several writers are tackling different aspects of these complex cases, and they’ll be published in a book in 2012.
In the meantime, court members are blogging on the Women’s Court of Canada website, editing other members’ writing, and seeking more funding. Professor Majury wants to hire someone to write plain-language summaries of the existing cases. She’d like to rework lower-court decisions and postulate what a women-run court would actually look like. Professor Réaume wants to see all Section 15 Supreme Court cases rewritten (there are about 50) so students could seek out recurring themes and criticize parallel bodies of jurisprudence.
It’s not surprising that the members of this loose, imaginary court have varied ideas of what they’d like to do and what it all means. The women’s court deals with equality, a fuzzy notion that has been with us under the law for a relatively short time. “The only way the legal system is able to handle complex issues is by doing it for a long time,” says Professor Réaume.
Court members are trying their best to speed up that timeline and help themselves, the legal system and all of us get a better grasp on what it means to truly treat people equally and fairly under the law.
Diane Peters writes on health, business, women’s issues and parenting for national publications. She teaches feature writing at Ryerson University.