The Women's Court of Canada

By Prof. Denise Réaume

From the Spring/Summer 2008 issue of Nexus.

We tend to think of the Supreme Court as having "the last word" when it comes to meting out justice. And yet, Canada has a noble tradition of citizens seeking a review of "final" decisions that were respectfully overturned. The Persons Case, in which the "Famous Five" were forced to appeal to the Privy Council in England in order for Canadian women to be recognized as "persons", is the most famous example, but there have been others.

This past March 8, 2008, marked the launch of another bold initiative in pursuit of equality rights: the Women's Court of Canada.

Recognizing that any legal judgment is the product of interpretation, and interested in exploring the possible alternatives to six controversial decisions that failed to deliver on the promise of equality our laws are written to protect, a group of lawyers, legal scholars and activists have rewritten the decisions.

Bound by the same rigorous legal constraints within which Supreme Court judges themselves must work, we sought to interpret the laws through a broader, more nuanced lens that considered the different circumstances faced by women and other disenfranchised groups. In the process, we hoped to ensure that the decisions we rendered would more effectively reflect and reinforce the equitable values that Canadians hold dear.

It wasn't easy. In wrestling with the complex legal issues involved, we gained new respect for the task judges face in providing comprehensive reasons and offering an appropriate remedy. And yet the exercise was as invigorating and illuminating as it was daunting. We welcomed the opportunity to explore the potential of section 15, the Charter's equality rights provision that generated such hope when it was introduced two decades ago. Teasing out its intent, identifying precedents, extrapolating consequences and arguing alternative possibilities strengthened our commitment to, and belief in the capacity of our laws to support substantive equality.

What does that mean, exactly?

"Formal" equality refers to the idea that all persons should be treated equally, and that means applying the same rules to everyone. "Substantive" equality recognizes that women and other marginalized groups are sometimes affected differently than men by policies and laws. This may be for biological reasons, such as the capacity to bear children, or more often because of the accumulated impact of social disadvantage. For equality to be delivered, such differences must be taken into account. A 'one size fits all' policy simply reinforces and reproduces past inequalities.

We might be talking about tax policy, the design of pension benefits, access to social assistance, or the range of services provided by schools. It doesn't matter: if the rules are designed with the most advantaged in mind, the needs of disadvantaged groups will not be met. Substantive equality or real equality will be sacrificed to formal equality.

In the cases we reconsidered, members of the Women's Court of Canada found ample justification in law to support an alternative outcome to the original decision. And we respectfully argue that the Supreme Court could have arrived at similar assessments had it applied a more sophisticated analysis of the equity principles at play. In re-writing these judgments, we hope to challenge narrow and formalistic approaches, and encourage interpretations that better address the complex inequalities involved.

We also hope that by establishing the WCC, we will inspire other equality thinkers to engage in similar debates to explore the limits and opportunities of our laws; to seek to show how they can be used to deliver genuine, substantive economic and social equality for all.

Denise Réaume is a Professor of Law at the University of Toronto and a founding member of the Women's Court of Canada. The Court celebrated the release of its first six decisions on March 6-7 at the "Rewriting Equality" launch and conference at Osgoode Hall Law School and the Faculty of Law, University of Toronto.

(L-R): Kate Stephenson (holding her child, Casey), Teressa Nahanee, Diana Majury, Mary Eberts, Margot
(L-R): Kate Stephenson (holding her child, Casey), Teressa Nahanee, Diana Majury, Mary Eberts, Margot
Young, Shelagh Day, Gwen Brodsky, Jennifer Koshan, Denise Réaume, Sharon McIvor, and Melina Buckley