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Gender Equality I Gender EqualityI.,. ,!Sa*=fl q J$ * ."" &,j & ;"<$$p "" !:A"- %* BY MICHELLE FALARDEAU-RAMSAY, Q.C, Pour montrer I'Pvolution des droits a I'PgalitP, lkuteure the future." In the early years of Confederation, women utilise, h commencer par les '5fameuses"du cas Personne en faced severe discrimination under the law and were sys- 1929, la tradition chez les Canadiennes, de se seruir du tematically excluded from the judicial system. Certain systi.me judiciaire incluant les tribunaux administratifj. criminal laws, such as infanticide, applied only to women, and different punishments for crimes were meted out When I graduated from law school in the late '50s, I was depending on the sex of the offender. Family law, under one of only six women in a class of 200. I was asked at the both civil law in Quebec and common law in other parts time, on more than one occasion, whether I was studying. - of Canada, treated women entirely as dependents. For law because I wanted to marry a lawyer, a question that example, a husband's permission was necessary for a wife would be inconceivable today. The first time I appeared in to engage in business, or even to administer or sell prop- court on behalf of a client, I was asked by a colleague erty which she had owned before marriage. whether I would cry if I lost the case. And I remember one Nor could women have any influence over the laws that occasion in the Montreal courthouse when three male affected them. Women could not vote or hold public colleagues stood guard while I used the men's washroom, office, and it was not until 1897 that the first woman- because it had not occurred to anyone to put aladies' room Clara Brett Martin-was admitted to the Bar of a Cana- in the area reserved for lawyers. dian province. In some provinces, the prohibition on It is ironic that in spite 0-f the barriers women faced in women practising law lasted well into the twentieth the legal profession until very recently, it is that very century. profession-in the form oflawyers, judges, and the judicial This was the backdrop to the Persons Case, which was system as a whole-that has .played . a crucial role in launched in 1928. As you are no doubt well aware, the case advancing equality for Canadian women over nearly seven involved five women who successfully challenged the decades. The role of the law in advancing gender equality provision in the British North America Act that made is even more ironic in light ofthe fact that even after 1929, women "non-persons" in the matter of rights and privi- women were still denied the equal benefit ofthe law in so 1eges.lWhile the actual challenge dealt with the right of many different areas, including family law and property women to be named to the Senate, the case had signifi- rights. Yet I would maintain that over the past two cantly broader implications. The question the "Famous decades, women have had as much, if not more, progress Five" put in front of the Supreme Court was simply this: promoting equality through the courts than they have "Does the word 'person' in Section 24 ofthe British North through the legislatures. America Act, 1867, include female persons?" The Court In this article, I will look at the deliberated for a month, and on April 24, 1929, it ruled what the role ofthe courts has been that the actdid did not include women. The Famous Five On Octo 8l in pmmotinggender equality; how then persuaded the government of Canada to appeal the 1929, the Judicial women in the legal profession- decision to the British Privy Council, then the highest Committee from Nellie M~CI~&to Claire court of appeal. L'Heureux-Dubi-have succeeded On October 18, 1929, the five Lords of the Judicial unanimously in advancing- the cause ofwomen's Committee unanimously decided that theword "persons" decided that the rights; and finally, what are the in Section 24 of the Act "included members both of the word N~ersonsrrlegal challenges still facing women male and female sex." They went on to describe the as we a~~roach.- the dawn of a new exclusion of women from public office as "a relic of days included millennium? more barbarous than ours." members both of From a legal perspective, the Persons Case is significant The Famous Five not only because it allowed women to be named to the the male and Senate, but because it gave women's srruggle for equality female sex." Nellie McClung herself once a legitimacy in law. It inspired future generations of said, "people must know the past women to continue to fight for their rights in the legisla- to understand the present and face tures, the courts, and in all areas of society. 52 CANADIAN WOMAN STUDIESILES CAHIERS DE LA FEMME and the Law 9 p~~ztgd,~.Aq . $3W&S A Q@ a a.,b, ,@izi:ikrA~& Gender equality and the courts ment efforts and in the way women are treated when they arrive. We continue to work with the Forces in their ef- The Persons Case was the beginning of what has forts to integrate women. become a tradition of Canadian women using the judicial In addition to the numerous cases that have been dealt system, including administrative tribunals, to advance with under provincial and federal human rights legisla- equality rights. There have been literally dozens of tribu- tion, there have also been a significant number ofconsti- nal and court decisions-before and after the coming into tutional cases that have advanced the cause of gender force of Sections 15 and 28 of the Canadian Charter of equality. The Supreme Court's Mor-entalerdecision, which Rights and Freedom-which have advanced the cause of struck down the Criminal Code provisions on abortion, gender equality. comes immediately to mind. So does the Court's decision A prime example ofthis has been the historyofjurispru- in Andrews v. Law Society ofBritish Columbia, which did dence related to sexual harassment. In 1980, an Ontario not directly involve gender equality, but established the Human Rights Board of Inquiry ruled in the Cherie Bell principle that s.15 of the Charter is meant to overcome case that sexual harassment was a form of discrimination conditions of disadvantage created by law in our society. based on sex. Later in the decade, the Supreme court The Court went on to say that equality-. under the Charter decisions in Robichaudand Janzen further established an does not require that all laws apply in the same way to employee's right to a harassment-free working environ- everyone; such as a system would fail to take into account ment. Although the Canadian Human Rights Commis- differences among individuals and might, in fact, increase sion had accepted sexual harassment complaints since its disadvantages. establishment in 1977-and the Canadian Human Rights In short, Andrews confirmed the important human Act was amended in 1983 to specifically prohibit sexual rights principle that treatingpeople equally does not mean harassment-these two Supreme Court decisions were treating people in exactly the same way, a principle that without a doubt the single most important developments has since been the basis of countless tribunal and court in the area of harassment law. decisions on matters and gender equality. Similarly, the Court's 1987 decision in Action Travail In 1990, the Court's decision in R. v. Lauallke forever des Femmes v. CN Rail, which, like Robichaud, began- as a altered the concept of "reasonableness" in cases involving complaint under the Act, broke new ground for women self-defence by victims of domestic violence. In this case, seeking employment in non-tra-ditional occupations. The an appeal of the conviction of an abused woman accused Action Trauailcase was significant in that it established the ofkilling her common-law husband, authority of a human rights tribunal to order special Madam Justice Wilson made it clear measures in cases of systemic dis-crimination. This deci- that what is considered "reasonable" sion not only benefited women, but other traditionally- for a man may not be "rea-sonable" It was the disadvantaged groups as well, as evidenced by this year's for a woman. She wrote: beginning of tribunal decision in NC~RRV.Health Canada, in which the what has tribunal ordered special measures aimed at visible minori- If it strains credulity to imagine ties seeking management and administrative jobs with what the "ordinam man" would become a that government department. do in the position of a battered tradition of Two years later, the human rights tribunal decision in spouse, it is probably because men the Gauthier case ordered the Canadian Armed Forces to do not typically find themselves in Women using integrate women into all combat-related positions, with that situation. Some women do, the judicial the exception ofsubmarines. The Canadian Armed Forces however. The definition ofwhat is system to have not made as much progress toward integration as we reasonable must be adapted to cir- would like to see. It is clear that commitment at the top is cumstances whichare, by and large, advance equality crucial if the principle of integration is to be translated foreign to the world inhabited by rights." into reality. That commitment must be filtered down the hypothetical reasonable man. through all levels of the Forces, both in terms of recruit- (874) VOLUME 19, NUMBERS 1 & 2 Other decisions have provided not only important But there is another issue to be raised in the "gender precedents, but also social commentary relating to wom- equality and the law" equation: and that is whether the en's status.
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