The Charter of Rights and Freedoms 20 Years Later by Debra Parkes and Sara Lugtig
The federal government wants you to mark April 17, 2002 on your calendar. On that day, the Canadian Charter of Rights and Freedoms will turn 20. There will be ceremonies on Parliament Hill, academic conferences and media retrospectives commemorating this milestone in Canada's constitutional history.
The Department of Justice will even produce a commemorative poster featuring photos of young Canadians who share the Charter's birth date of April 17, 1982.
Although many feminists will celebrate on April 17th, many will also reflect on the mixed success of feminist litigation and law reform efforts in the age of the Charter. For many women, the Charter will not be a success until it is interpreted and applied in a way that meaningfully addresses the growing social and economic inequalities in Canada. The rights to free expression, equality and freedom of association mean little to women whose right to an adequate standard of living is ignored by courts and legislators.
The success of pending Charter claims for "economic and social rights"-rights to adequate food, shelter and health care, for example-will tell us a lot about whether the Charter is really something to be cheered. Apparently, we are proud of our Charter of Rights. A recent survey found that 77 percent of Canadians approve of the Charter. Some of us are aware that substantial portions of the Charter served as a model for the 1996 South African Bill of Rights.
No doubt many feminists remember the heady days in February and March 1981 when 1,300 women converged on Ottawa to demand stronger provisions for women's equality in the draft Charter, ultimately leading to the inclusion of Section 28 which provides that "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."
Yet a claim brought by a young Quebec woman named Louise Gosselin demonstrates that the 20-year-old Charter has some considerable room to grow. Gosselin is waiting to hear whether the Supreme Court of Canada will overturn a Quebec court decision which held that slashing her welfare cheque in 1988 from $466 per month to $163 per month was a reasonable restriction of her right to equality and was not an infringement of her right to security of the person.
The National Association of Women and the Law has intervened in support of Gosselin's class action, saying in its press release, that the Quebec regulation "exacerbates women's existing inequality, poverty and vulnerability to sexual and racial violence and discrimination." What is really at issue in Gosselin is the scope of the Charter itself, the nature of its rights and the limits of its ability to protect vulnerable individuals and groups. The first two decades of Charter litigation have taught feminists and poverty activists something about those limits, causing many to be skeptical about the possibility of a good result for Louise Gosselin at the Supreme Court. However, some recent trends in Canadian and international law may offer some hope.
20 Years Later: Gains and Losses
When the Charter became law in 1982, the transformation in Canada's legal, political and democratic landscape was immediate and profound. If we could convince a court that the government had violated our rights, the court could now take immediate and direct action to stop the abuse.
On its face, the Charter represented an unprecedented shift in the power balance between government and the people. For women and other disadvantaged groups, however, the impact was less immediate. Section 15, the equality rights provision, did not become law until 1985.
In addition, hiring a lawyer to take the government to court was a pipe dream for most individuals who experience inequality. For this reason, women's groups and other equality-seeking groups successfully lobbied the federal government to provide funding through the Court Challenges Program for precedent-setting equality rights challenges to federal laws and policies. Originally set up to promote constitutional rights relating to Canada's official languages, the Winnipeg-based Court Challenges Program provides financial assistance for cases which advance the Charter's equality and language rights.
What have women gained after 20 years of the Charter? Thanks to an early win in the Morgentaler case, we no longer face the threat of going to jail for having an abortion. The Court ruled in 1988 that hospital therapeutic abortion committees were a violation of women's constitutional rights. Discrimination based on pregnancy (Brooks v. Canada Safeway) and sexual harassment (Janzen v. Platy) are recognized forms of sex discrimination - an idea that seems obvious to us today, but was revolutionary in 1989!
Women and girls are better protected in court when helping to bring perpetrators of sexual assault to justice. Child support payments are no longer taxed in the hands of the women who receive them. Women with disabilities have the right to accessible health care. Aboriginal women have increased protection for their voting rights in band council elections. Immigration officials cannot deny women the ability to stay in Canada with their children without taking into account the impact on the mother-child relationship.
These gains resulted in large part from the involvement of women's advocacy groups appearing before the courts. Public interest interventions are allowed when a court feels it can benefit from a broader perspective on the impact of its decision. Groups like the Congress of Black Women, DisAbled Women's Network, National Association of Women and the Law, Native Women's Association of Canada and Women's Legal Education and Action Fund (LEAF), to name a few, urged the courts hearing these cases to take women's rights into account. As we know, a win in court does not necessarily result in comprehensive changes on the ground.
Aboriginal women still face obstacles. Immigrant and refugee women still face biased officials who have a great deal of discretion. Still, in two short decades, we have convinced our courts and governments to rid our laws of some of the more blatant forms of unequal treatment for women. Women have definitely lost ground, however, when it comes to systemic forms of discrimination that are found in economic and social policies. In the mid-90s, the federal government got rid of the Canada Assistance Plan, which set national standards and adequate funding for social assistance, and reduced its share of health and social spending to the provinces. Meanwhile, Ottawa made qualifying for Unemployment Insurance more difficult, especially for women in part-time employment or who leave the paid workforce to give birth or to care for children. The government said these cuts were needed to get our deficit under control and to compete in a global marketplace. In practice, however, women are paying the price for these economic policies.
Protecting Social and Economic Rights
What government and the media often pass off as inevitable economic consequences are actually serious violations of our rights. In 1976, Canada signed on to the International Covenant on Economic, Social and Cultural Rights, a United Nations document that guarantees the right to adequate food, clothing, housing and other necessities of life for all people. Anti-poverty advocates maintain that Canada has so far evaded its international responsibilities under the Covenant by relying on the fact that Canada's Charter does not set out specific entitlements to the necessities of life.
The Charter contains broad rights to equality and security of the person. What is in question in the Gosselin case is whether these guarantees encompass the right to an adequate standard of living, consistent with our country's international commitments. Indeed, the United Nations Committee charged with monitoring compliance with economic and social rights thinks so. It has sharply criticized Canada-a country that spent five years at the top of the United Nations Human Development Index-for allowing persistent and growing poverty.
Under international law, civil rights such as freedom of expression and the right to vote are considered 'indivisible' from these social and economic rights. Civil rights like the ability to read and engage in public life mean little without food in one's stomach. The same logic applies to our own Charter.
Kate Stephenson, co-chair of LEAF's National Legal Committee, sees the pursuit of social and economic rights as a critical aspect of LEAF's mandate to promote women's equality in Canada through Charter litigation. She notes that "women are frequently the targets of restrictions and cuts to social programs. Such cuts and restrictions threaten women's security of the person and impede women's equality and are, thus, clearly subject to challenge under the Charter."
Unfortunately, Canadian courts have steadfastly maintained that social and economic rights are not rights at all; they are merely policy goals to which Canada aspires. In 1995, an Ontario court held that Mike Harris' 22 percent cut in welfare rates did not threaten the rights of 120,000 families who would be dislocated or even homeless due to the drastic reduction in income. The desperate circumstances of these recipients of income assistance, 67,000 of whom were sole-support mothers, supposedly resulted from their inability to provide for themselves. In the court's view, the Charter had nothing to say about their plight.
The sharp distinction drawn by these judges between civil rights and economic/social rights has a long history in the law, which lays stock in the difference between so-called 'negative' and 'positive' rights. Negative rights, such as the right to silence and the presumption of innocence, protect people from the coercive power of the state while positive rights to social assistance or health care require government action and expenditure. Critics of positive rights say that they are more ideological and controversial, largely because they interfere with private individuals' and business' rights to spend their money as they see fit. Supporters of positive rights reject this distinction, not only because it is incoherent in a society where government is involved in every aspect of our lives, but also because it maintains the class structure and patriarchal status quo.
The state's intrusion in women's lives can create serious inequalities, making equal recognition of women's civil rights important. Lawyers for Henry Morgentaler were able to convince the Supreme Court that the criminal law that made abortion illegal without the approval of deeply-flawed and often unavailable hospital abortion committees violated women's right to security of the person.
The Charter constrained the government's ability to enact laws that threatened women's bodily integrity in such a fundamental way. This case nonetheless shows the limits of negative rights in addressing important issues for women. Women still face barriers to accessing abortion services in many regions of this country. What happens when women argue that the government has violated their rights by failing to act?
The results are somewhat hopeful. The New Brunswick government recently learned in a more traditional civil rights case that the line between positive and negative rights is fading at the Supreme Court of Canada. Cuts to legal aid that resulted in a woman attending court without a lawyer when faced with losing custody of her child to the state were not without constitutional consequences. According to the Supreme Court, the Charter right to be represented by a lawyer includes government footing the bill for a lawyer in such a case. Even more encouraging is the Supreme Court's robust interpretation of the Charter's equality guarantees. The Court has interpreted section 15 to force governments to recognize that law is often created to meet the needs of those with power and access to our democratic institutions.
In many cases, treating everyone the same is not equality at all, but, rather, a way of propping up privilege. Dealing with this problem requires further steps by government to make sure that benefits and protections in our laws are equally meaningful for everyone. For example, Robin Eldridge and other deaf patients convinced the Supreme Court that the B.C. government's elimination of publicly funded sign language interpretation for medical and hospital visits violated their equal right to Medicare.
The Supreme Court ordered the government to take all necessary steps to provide the service. Positive change is occurring, if slowly, says Sharon McIvor. As a board member for the Native Women's Association of Canada, McIvor launched a Charter challenge based on the exclusion of Aboriginal women from consultations between government and national Aboriginal organizations leading up to the 1992 Charlottetown Accord. Though the challenge was ultimately unsuccessful, McIvor maintains that, "We can't forget that 20 years is a short time and we have achieved a lot. In those early cases, we had to get up our courage just to make arguments that are now established principles in equality law. The first judges thought we were irrational, while today's judges use our language in their equality rights judgments."
The Way Forward
Where does this leave Louise Gosselin and other women who have been dislocated and marginalized through the unravelling of our social safety net? Women's advocacy groups now have the tools and the experience they need to meet the challenges presented by social and economic rights claims. The Court Challenges Program stands to be an even more valuable resource in that fight if it is expanded to cover challenges to discriminatory provincial laws, as well as federal ones. Despite economic losses for women on the political front in recent years, we should not give up the battle to hold legislators accountable, both at the polls and in the courts. Now, more than ever, it is time for the Charter to grow up and address these most pressing human rights issues for women.