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Creating Trialogue Women's Constitutional Activism in Canada

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Creating Trialogue Women's Constitutional Activism in Canada Creating Trialogue Women’s Constitutional Activism in Canada MARILOU MCPHEDRAN Les droits constitutionnels à l’égalité des droits ont évolué depuis democracy.4 Before returning to Canada to enter politics, une dizaine d’années grâce aux féministes qui militaient dans Michael Ignatieff observed how Canadian constitutional leur quotidien. Toutefois, ce militantisme constitutionnel des development accommodated diversity, femmes a souvent été traité comme marginal durant ces périodes formatrices de la démocratie. L’auteure décrit l’ardeur déployée The rights revolution makes society harder to control, par ces femmes pour amender les clauses sur l’égalité des droits more unruly, more contentious. This is because rights dans la Charte canadienne des droits et libertés. equality makes society more inclusive, and rights protection constrains government power.… What We now have a Charter that defines the kind of makes the Canadian political story so interesting is country in which we wish to live, and guarantees the way in which women’s organizations, Aboriginal the basic rights and freedoms which each of us groups, and ordinary citizens have forced their way shall enjoy as a citizen of Canada. It reinforces the to the table and enlarged both the process of consti- protection offered to French-speaking Canadians tutional change and its results.5 outside Quebec, and to English-speaking Cana- dians in Quebec. It recognizes our multicultural Women’s Activism and Constitutionalism character. It upholds the equality of women, and the rights of disabled persons. From the early 1980s through the mid 1990s, the crumbling —Pierre Elliott Trudeau (1982)1 of the Berlin Wall released a flood of newly independent states embarked on constitution-making, South African Women’s constitutional equality rights have evolved from apartheid officially ended when the interim constitution decades of women’s activism, drawn up from the grass was put in place, and the Canadian constitution was roots of the daily lives of women and children, reaching “patriated”—following the prime minister’s promise to into the exclusive corridors of malestream2 political and “bring the constitution home”6 from under England’s legal institutions, to impact on constitution-making and authority. While the last mentioned event was hardly on constitution-working. In the past 25 years, the world’s the same scale of human upheaval as the first two, they strongest, clearest articulations of commitment to equal- are all examples of the progression of constitutionalism ity-based democratic rights and freedoms have been and constitution-making around the globe, including developed—including Canada’s Constitution Act 1982.3 Afghanistan, Brazil, Eritrea, Nicaragua, Rwanda and Intensely focused women’s activism during negotiations Uganda.7 Women mobilized on every continent, around over text yielded substantive amendments in our much their vision of women’s constitutional equality rights, as heralded constitution. Yet women’s constitutional activ- a means to live their rights. ism has often been treated as a “sidebar” in mainstream Questions about both sides of women’s constitutional accounts of these formative periods in democratic evolu- activism arise—one side being women’s impact on consti- tion. Official records have little on Canadian women’s tution-making and thus on final constitutional text; but influential contributions in those intensely political the other side being the impact of constitution-making arenas—at each drafting stage and, as integration of the on women and their social movements. In the hope that constitution proceeded, to the country’s legal system, this article will be a useful contribution to the rather thereby affecting national aspirations for this constitutional sparse discourse on women’s activism and democratic 6 CANADIAN WOMAN STUDIES/LES CAHIERS DE LA FEMME reform, observations are prompted by the following four to ensure for women equal opportunities with men in all practical questions.8 aspects of Canadian identity.”16 But a year into the Commission’s mandate, Pauline 1. What conditions generated women’s readiness for Jewitt queried why governments were avoiding the public constitution making; what characteristics influenced hearings, “They [commissioners] know that a basic re- the nature of women’s constitutional activism? examination of the role of men in the status of women 2. What was wrong with early draft equality provi- problem, while it may terrify the men, does not terrify sions; how did women activists succeed in attaining the women. And they know the hearings, far from being amendments? a catharsis, have given women a new determination to 3. What kinds of engagement (alliances) proved ef- ensure that they may yet be treated, in dignity and worth fective in the social movement toward the best textual as equals of men.”17 protection possible; were strategies time limited, were alliances sustained? 4. What about “results”—what was generated from Women’s constitutional activism activism that had a demonstrated impact on the con- stitutional drafting/amending/follow-up/processes? has often been treated as a “sidebar” in mainstream accounts of formative Putting Women on the Constitutional Agenda periods in democratic evolution. The following is a brief summary of key events and indicators from the decades of activism that rolled up to the crucial moments of influence when the constitution Dissatisfaction with the Commission’s 167 final recom- of Canada was finally constructed as the 1970s slid into mendations culminated in April 1972, when hundreds the 1980s. from across the country gathered to form a new non- governmental, activist umbrella organization—known as Whenever I don’t know whether to fight or not, I NAC—the National Action Committee on the Status of fight. —Emily Murphy9 Women.18 A year later the federal government established the Canadian Advisory Council on the Status of Women The “Famous Five” Persons (CACSW), then several provinces appointed women to In 1928, five women10 collectively petitioned the Su- advisory councils, which became crucial in family law preme Court of Canada, to ask: Does the word “person” reforms that moved to centre-stage in the 1970s, when in Section 24 of The British North American Act include the Supreme Court of Canada made decisions under the female “persons?” Canadian Bill of Rights that spoke volumes to Canadian Chief Justice Anglin answered for a unanimously nega- women about the difference between “justice” and the tive Supreme Court of Canada.11 The five petitioners had “law.”19 to choose between strategies, to a) convince the govern- ment to legislate in their favour or b) litigate further to Readiness—Women Lost Every Bill of Rights Case the Judicial Committee of the Privy Council of England. The Five opted to appeal, but could not afford to be pres- Aboriginal Women and Children ent.12 On October 18, 1929, Lord Chancellor Sankey of With their appeals heard together and rejected by the the Privy Council, provided the English lords’ unanimous Supreme Court, Jeanette Lavell and Yvonne Bédard, Ab- answer,13 “…and to those who would ask why the word original women who had married non-Aboriginal men, [persons] should include female, the obvious answer is, argued that s.12 (1)(b) of the federal Indian Act discrimi- why should it not?”14 nated against women of Indian status making them lose Litigation was a strategic choice that few Canadian that status upon marriage to a non-Indian, when Indian women of the time could have made. Long years of women’s men could extend status to non-Indian wives, and in turn, rights activism, relatively advantaged social positions and their children.20 This loss under the Bill of Rights prompted political access made such high impact litigation possible national concern—and a dramatic activist response by a for these five activists.15 group of Aboriginal women, who took their small children, fathered by non-status men, to walk in protest from the Building National Women’s Rights Machinery Tobique reserve to the federal capital of Ottawa. One of In 1967, decades after the Persons Case, responding to their leaders, Sandra Lovelace (appointed to the Senate pressure from disgruntled women’s groups, a Royal Com- of Canada in 2005), successfully petitioned the United mission on the Status of Women was mandated to “inquire Nations Human Rights Committee21 alleging violations into the status of women in Canada and to recommend by Canada under the Optional Protocol to the International what steps might by taken by the Federal Government Covenant on Civil and Political Rights.22 VOLUME 25, NUMBERS 3,4 7 International Women’s Day, 2004. Photo: courtesy of Vancouver Rape Relief. Just a Wife ernment cancelled the CACSW women’s constitutional In dismissal of her lifetime of work in ranching with conference, the high stakes were widely understood by her husband for more than 25 years, the Supreme Court Canadian women. awarded Irene Murdoch just two hundred dollars a month, agreeing with the trial judge that her “routine” work of The issue—whether women would have a share in “any ranch wife”23—was insufficient to create a legal the future of the nation—knit up all kinds of raggedy claim to the matrimonial property.24 Irene Murdoch’s ends…. “A lot of us sensed it and not just in the or- loss galvanized family law reform in every province and ganized women’s movement. It had been building.… territory for the rest of the 1970s. this shoddy treatment of a strong and honest woman [Doris Anderson] at the same time as denying us our No Protection for a “Pregnant Person” rights as citizens…. Boom.”27 Stella Bliss was fired because she was pregnant. After her baby was born, she sought, but did not find, appro- Five Years of Constitution-Making, 1981-86: The priate employment, but the Unemployment Insurance Shift to Constitution-Focused Women’s Commission turned down her application—because she Activism had been pregnant when she lost her job and she did not meet the more stringent criteria applied to pregnancy Executive Constitutionalism v.
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