THREE STRIKES BUT NOT OUT: JUDICIAL LOSSES AND WOMEN'S POLITICAL ACTIVISM AHEAD OF THE CHARTER A Thesis Presented to The Faculty of Graduate Studies of The University of Guelph by TOM HOOPER In partial fulfillment of requirements for the degree of Master of Arts April, 2008 © Tom Hooper, 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-41828-4 Our file Notre reference ISBN: 978-0-494-41828-4 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. 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Canada ABSTRACT THREE STRIKES BUT NOT OUT: JUDICIAL LOSSES AND WOMEN'S POLITICAL ACTIVISM AHEAD OF THE CHARTER Tom Hooper Advisor: University of Guelph, 2008 Professor Alan Gordon This thesis examines how the Canadian women's movement utilized judicial losses to achieve long-term political and social gain. The Lavell, Murdoch and Bliss Supreme Court cases of the 1970s were pivotal in galvanizing the women's movement ahead of the Charter of Rights and Freedoms. Each case demonstrated the movement's growing frustration with the limited interpretation of the Canadian Bill of Rights, which was seen as inadequate in protecting the rights of women. These cases also helped to demonstrate the movement's discomfort with the perceptions, expectations and attitudes toward women, and challenged traditional gender roles both in the family and in the broader society. When the Supreme Court decided against the women involved in each case, the movement's strategy went from legal to political, and thus helped to reshape Canada's constitution. As a result, the women's immediate losses at the Supreme Court aided in achieving the movement's longer-term policy objectives. Acknowledgements First and foremost, I would like to extend my deepest and most sincere appreciation toward my advisor, Dr. Alan Gordon. It was not only his advice and support that got me through this project, but also got me thinking of grad school in the first place. I would also like to thank the other members of my committee: to Dr. James W. St. G. Walker, for giving me a valuable appreciation for the history of Canadian human rights; and to Dr. Matthew Hayday for his academic and professional advice. Dr. William Cormack and Dr. Stuart McCook greatly aided in keeping my sanity throughout this program with their incredibly insightful advice and support. Also I wish to send my thanks to Dr. Stephanie Bangarth for giving me motivation and support, especially through the more arduous periods of my program. This work was a product of archival research that required the support and cooperation of many individuals both at the Supreme Court Records Office and the Canadian Women's Movement Archives at the University of Ottawa. My research trips were also helped by my friend and gracious host, Tisha Ashton. This intensive program could not have been completed if it were not for the support of many individuals in my personal life, who sacrificed their time and energy as I worked through this. To Matt Demers and the Demers family, thank you so much for your love, patience and support. Also, thank you to Annette Demers, BA LLB MLIS, of the Paul Martin Law Library at the University of Windsor, for taking the time to introduce me to legal research. Thank you to my friends, particularly David Pearce, for providing me with much needed love and stress relief. This would not have been possible without the support of my loving family: especially Mom and Dad, for always believing in me. i Table of Contents Introduction Chapter 1 21 Indian Status and the Indian Act: The case of Jeanette Lavell Chapter 2 63 Matrimonial Property: The case of Irene Murdoch Chapter 3 83 Maternity Leave Benefits and the Unemployment Insurance Act: The case of Stella Bliss Conclusion 101 Bibliography 108 n Introduction The Canadian women's movement was emerging on the political scene as a powerful force in the early 1970s. With hundreds of women's organizations formed in the 1960s, the 1970s was a period where women were able to galvanize, strengthen and coordinate in order to become politically active. While traditional activism forced the government to move on certain issues relating to women's equality, in the 1970s, women's groups attempted to bring equality issues to the public's attention via a different forum. This forum was that of the Supreme Court. When equality cases were brought to the Supreme Court, challenged under the 1960 Canadian Bill of Rights, it did not necessarily matter whether women won or lost. This is because the women's political campaign did not end with their losses at the Supreme Court, it was only just beginning. In 1985, just prior to the Charter's equality clauses coming into force, section 12(l)(b) of the Indian Act was repealed by Parliament. The system by which Indian status was granted and removed was changed so that the Indian Act did not discriminate based on sex. For Jeanette Lavell, this change represented her moral victory from a case that she took to the Supreme Court in 1973 that challenged the Indian Act's provisions against the Canadian Bill of Rights. By 1 January 1981, each province had implemented legislation that protected matrimonial property for women in the event of divorce. For Irene Murdoch, who lost her case in Murdoch v. Murdoch at the Supreme Court in 1973, the implementation of these measures ensured that no other woman would be faced with the same challenges that she endured. She was left with $200 per month in maintenance and no claim to her half of her and her husband's ranch. 1 In the 1989 case of Brooks v. Safeway Canada, the Canadian Supreme Court declared that the 1978 decision of Bliss v. Canada (Attorney General) "was wrongly decided."1 For Stella Bliss, this decision represented a vindication that she was wrongfully discriminated against under the Unemployment Insurance Act's maternity leave provisions. Those provisions made it more onerous to claim maternity benefits than that of benefits for work shortage, or other reasons as covered in the Act. None of these three women had any idea that well after the fact scholars would be discussing their cases. In fact, the Women's Legal Education and Action Fund (LEAF) states that it was these three cases that led to the formation of a new Charter of Rights and Freedoms that would ensure "that women be treated the same before the law." While scholars have used the example of these three cases to highlight the many facets of the Canadian women's movement in the 1970s, little has been written which would provide a historical basis to explain how three major losses at the Supreme Court could assist the women's movement, and lead to the drafting of strong rights protections for Canadian women under the Charter. These cases highlighted to the women's movement many of the areas of Canadian law that required fundamental change. These three losses galvanized the women's movement, and in the 1980s Canadians saw legislative and legal change that reversed their negative outcomes. As a result, despite their losses at the Supreme Court in the 1970s, the Lavell, Murdoch and Bliss cases offered an opportunity for the women's 1 Chief Justice Brian Dickson's judgment states, "With the benefit of a decade of hindsight and ten years of experience with claims of human rights discrimination and jurisprudence arising therefrom, I am prepared to say that Bliss was wrongly decided or, in any event, that Bliss would not be decided now as it was decided then." Brooks v. Safeway Canada [1989] 1 S.C.R. 1219. 2 "LEAF history," Women's Legal Education and Action Fund, http://www.leaf.ca/about/history.html [Accessed: January 30, 2008] 2 movement to change the minds of judges, lawmakers, and the Canadian public. But their goal was not simply legislative and legal change; it was also to seek broader social change. Each case goes well beyond the simple sections and subsections of federal and provincial legislation; they reveal deeply-rooted patriarchal values within Canadian society.