The Charter, Equality Rights, and Women: Equivocation and Celebration

Osgoode Hall Law Journal

Volumn 40, Issue 3-4, 2002, Pages 297-336

  Majury, Diana ^a  

^a CARLETON UNIVERSITY   (Canada)

Author keywords

Canada; Canada. Canadian Charter of Rights and Freedoms; Equality; Etc; Laws; Women Legal status

Indexed keywords

EID: 70449556423     PISSN: None     EISSN: 28175069     Source Type: Journal    
DOI: 10.60082/2817-5069.1438     Document Type: Article

References (121)

1. Canadian Charier of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
2. Ibid., s. 15. The equivocation reflected in the title, that inheres in section 15 of the Charter and in feminist responses to it, arises even in relation to the creation of this special issue of the Osgoode Hall Law Journal celebrating—or at least recognizing—the twentieth anniversary of the Charter. 2002 is not the twentieth anniversary of section 15 of the Charter, it did not come into effect until three years later, in 1985. In terms of celebration or recognition, this can be read two ways. One way is to see this as a continuing slight to section 15, the tag-along younger sister, who is included in the party but whose unique history, status, and struggles are repudiated by that inclusion. Alternatively, or 1 prefer, simultaneously, one can see this as doubling the opportunities to mark the advent of section 15. She cannot be left out of the general Charter attention, but she will have her own exclusive party in three years’ time. She is the difficult younger sister who demands more than her share of the attention because… she deserves it.
3. This is somewhat ironic, given that abstractness is a critique that many writing in this vein make of the Charter itself.
4. See infra. Part II.A., for a discussion of what I mean by this term.
5. I am engaging here only with the critiques and discussions from among what might be termed “progressives.” I am not looking at right-wing critiques, even though there are some interesting parallels and resonances among right and left critics. See Sheila McIntyre, “Feminist Movement in Law: Beyond Privileged and Privileging Theory” in Radha Jhappan, ed., Women’s Legal Strategies in Canada (Toronto: University of Toronto Press, 2002) 42.
6. Despite my tendency to portray them as oppositional, I see these positions more as interrelated and overlapping, situated along a continuum.
7. I think it is important to try to identify who articulates various positions, that is who it is that is talking positively or negatively about the Charter, as a means of contextualizing and deindividualizing these discussions and providing additional political grounding for an analysis of what is being said. As one who believes that race, gender, etc., for example, matter to who we are, how we are treated, and relatedly then to how we think about the world, I think it is important to try to factor (as best one can) our multiple identities into the analysis of academics’ work. The critique of the approach that I am advocating mirrors the more general critique of a grounds-based approach to discrimination. According to this critique, identity categories are artificial compartments that oversimplify and give rise to unwarranted assumptions and to the unreflective attribution of group characteristics. Given that the categories are the problem, relying on them inevitably reinforces the problem, that is one is actively engaging in the act one is critiquing when one categorizes people on these bases (race, gender, etc.). It is true that categorization.is the source of discrimination; it is discrimination that makes the categories matter. But that is the very point, the catch 22—discrimination does make the categories significant—the recognition that our experiences (of discrimination as well as of identity-based pride and connection) and our situation have an impact on our thinking. Group membership is not determinative, but it is a factor in forming one’s perspective.
8. Harry J. Glasbeek, “From Constitutional Rights to ‘Real’ Rights – “R-i-i-g-hts Fo-or-wa-ard Ho”!?” (1990) 10 Windsor Y.B. Access Just. 468 at 469-70.
9. Ibid. at 470.
10. The history of Canadian sexual harassment law is one example and the inclusion of sexual orientation in Alberta’s human rights legislation is another.
11. See Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: The Osgoode Society, 1991) and Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 (Toronto: The Osgoode Society, 1999).
12. The question of the extent to which the judiciary is fettered is also subject to debate. Section 33 of the Charter, the “notwithstanding clause,” leaves the final word to Parliament, if it has the courage to invoke it.
13. Joel Bakan,“Constitutional Interpretation and Social Change: You Can’t Always Get What You Want (Nor What You Need)” (1991) 70 Can. Bar Rev. 307.
14. Andrew Petter & Allan C. Hutchinson, “Rights in Conflict: The Dilemma of Charter Legitimacy” (1989) 23 U.B.C. L. Rev. 531.
15. William E. Conklin, ‘“Access to Justice’As Access to a Lawyer’s Language” (1990) 10 Windsor Y.B. Access Just. 454.
16. This is not to say that all feminists support the Charter; feminists articulate the full range of perspectives on the Charter. My comments here are generalizations and suffer the over-inclusion problem of all generalizations. Nonetheless, I think that feminists tend to be drawn to the more pragmatic, it’s-worth-a-try end of the Charter spectrum.
17. See McIntyre, supra note 5 and Didi Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality (Toronto: University of Toronto Press, 1994).
18. See e.g. Sherene Razack, “Using Law for Social Change: Historical Perspectives” (1992) 17 Queen’s L.J. 31; Carol Smart, Feminism and the Power of Law (London: Routledge, 1989).
19. Mary Ellen Turpel, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” in Richard F. Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery, 1991) 503.
20. The complexities of this dilemma are readily apparent in the case of the Native Women's Association of Canada v. Canada, [1994] 3 S.C.R. 627 [NWAC] in which NWAC sought and was denied funding and rights to participate in the constitutional review process equal to the four national Aboriginal organizations included by the federal government. The intersectional discrimination of race and sex placed some Aboriginal women in an intolerable, bifurcated position that the Court did not address or even acknowledge in its decision in this case.
21. Supra note 19 at 508.
22. Ibid. at 527.
23. I see this as a particularly suitable role for intervenors whose job it is to bring a different perspective before the court and who are not constrained by the needs and interests of clients.
24. Rosalie Abella, “Limitations on the Right to Equality Before the Law” in Armand de Mestral et al., eds., The Limitation of Human Rights in Comparative Constitutional Law (Cowansville, Qc.: Yvon Blais, 1986) 223 at 225.
25. See e.g. The Right Honourable Beverley McLachlin, “Equality: The Most Difficult Right” (2001) 14 Sup. Ct. L. Rev. (2d) 17. According to Chief Justice McLachlin, at 21, “[sjubstantive equality is recognized worldwide as the governing legal paradigm.”
26. Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143 [Andrews].
27. Radha Jhappan, “The Equality Pit or the Rehabilitation of Justice” (1998) 10 C.J.W.L. 60 at 63.
28. Jhappan argues that a justice approach would lead to the determination of a more appropriate reference group (ibid. at 95). Thus, even with justice one faces the problem of finding the appropriate reference or comparator group. While this is an ongoing problem that can seriously hamper or deflect the analysis of judges and litigators, 1 am not sure that there is anything inherent in either the justice concept or the equality concept that more, or less, effectively directs the comparative analysis.
29. Supra note 27 at 79.
30. Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III.
31. U.S. Const. [U.S. Constitution].
32. Mary Eberts, “Sex-based Discrimination and the Charter” in Anne F. Bayefsky & Mary Eberts, eds., Equality and The Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 183; Katherine J. de Jong, “Sexual Equality: I nterpreting Section 28” in Bayefsky & Eberts, ibid. at 493; and Penny Kome, The Taking of Twenty-Eight: Women Challenge the Constitution (Toronto: Women’s Press, 1983).
33. See e.g. Elmer A. Driedger, “The Canadian Charter of Rights and Freedoms” (1982) 14 Ottawa L. Rev. 366 at 373.
34. N. Colleen Sheppard, “Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms’’ (1986) 10 Dal. L.J. 195 at 222.
35. Eberts, supra note 32 at 216.
36. Supra note 24 at 232.
37. Catharine A. MacKinnon, “Making Sex Equality Real” in Lynn Smith, ed., Righting the Balance: Canada’s New Equality Rights" (Saskatoon: Canadian Human Rights Reporter, 1986) 37 at 41.
38. R. v. Osolin, [1993] 4 S.C.R. 595 at 669 [Osolin].
39. NWAC, supra note 20 at 665. The Federal Court of Appeal decision in this case providing a declaration that the federal government had restricted the freedom of expression of Aboriginal women, thus violating their section 2(b) and 28 Charter rights, is one of few decisions in which section
40. grounded an equality decision. This decision was overturned on appeal.
41. See R. v. Hess, [1990] 2 S.C.R. 906, Wilson J. [W«i] and R. v. Seaboyer, [1991] 2 S.C.R. 577, L’Heureux-Dubé J., dissenting [Seaboyer].
42. The question of the demise of section 28 is intriguing and worthy of a much fuller exploration but, sadly, 1 cannot dally with it any further in this article.
43. See e.g. Christine Boyle and Sheila Noonan, “Prostitution and Pornography: Beyond Formal Equality” (1986) 10 Dal. L.J. 225; Diana Majury, “Equality and Discrimination According to the Supreme Court of Canada” (1991) 4 C.J.W.L. 407; and Sheppard, supra note 34.
44. Dianne Pothier, “Connecting Grounds of Discrimination to Real People’s Real Experiences” (2001) 13 C.J.W.L. 37; Nitya Iyer, “Categorical Denials: Equality Rights and the Shaping of Social Identity” (1993) 19 Queen’s L.J. 179.
45. McIntyre, supra note 5 at 46.
46. Judy Fudge, “What Do We Mean by Law and Social Transformation?” (1990) 5 C.J.L.S. 47 at 58; see also Gwen Brodsky & Shelagh Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989).
47. Colleen Sheppard, “Grounds of Discrimination: Towards an Inclusive and Contextual Approach” (2001) 80 Can. Bar Rev. 893 at 908.
48. One of the most obvious problems with such an approach is that it assumes that it is always clear which is the subordinated group. Such a clear-cut distinction between oppressed and oppressor is belied by our complex and multiple identities and issues of intersectional discrimination. The possibility of excluding the dominant group from section 15 protection in relation to the sex ground was explicitly rejected by Justice McLachlin in Hess, supra note 40 at 943-44: “There is no suggestion in that language [in Turpin] that men should be excluded from protection under s. 15 because they do not constitute a ‘discrete and insular minority’ disadvantaged independently of the legislation under consideration.” She relied on section 28 to support this conclusibn and proceeded to find a breach of section 15.
49. C. Lynn Smith, “Judicial Interpretation of Equality Rights under the Canadian Charter of Rights and Freedoms'. Some Clear and Present Dangers” (1988) 23 U.B.C. L. Rev. 65 at 93-94.
50. See e.g. Kimberle Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) U. Chicago Legal F. 139; Iyer, supra note 43; Nitya Duclos, “Disappearing Women: Racial Minority Women in Human Rights Cases” (1993) 6 C.J.W.L. 25; and Carol A. Aylward, Canadian Critical Race Theory: Racism and the Law (Halifax: Fernwood, 1999).
51. Duclos, ibid.; see also Jennifer Nedelsky & Craig Scott, “Constitutional Dialogue” in Joel Bakan & David Schneiderman, eds., Social Justice and the Constitution: Perspectives on a Social Union for Canada (Ottawa: Carleton University Press, 1992) 59.
52. See e.g. Anna Pellatt’s discussion of the group-based argument that the Women’s Legal Education and Action Fund [leaf] put forward in Vriend v. Alberta, [1998] 1 S.C.R. 493 [Vriend], in Anna S. Pellatt, “Equality Rights Litigation and Social Transformation: A Consideration of the Women’s Legal Education and Action Fund’s Intervention in Vriend v. R.” (2000) 12 C.J.W.L. 117.
53. See Justice L’Heureux-Dubé’s dissent in Egan v. Canada, [1995] 2 S.C.R. 513 [Egan].
54. Pothier, supra note 43.
55. However, for an article that is all about differences among Supreme Court of Canada judges, see Marc Gold, “Of Rights and Roles: The Supreme Court and the Charter” (1989) 23 U.B.C. L. Rev. 507.
56. See e.g. Bakan, supra note 13 at 319. While there is no question that judges, almost by definition, are members of the social and economic elite in Canada, this does not preclude judges, like law professors, from having a class consciousness. Additionally, class is only one piece of a multiple and complex identity and is not determinative of one’s ideology.
57. There are as of yet so few Aboriginal and racialized judges that it is difficult to do anything more than speculate about the positive differences that these judges would bring and the personal cost to these judges. See e.g. R. v. S.(R.D.), [1997] 3 S.C.R. 484.
58. See e.g. Madame Justice Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall L.J. 507 and Justice Maryka Omatsu, “On Judicial Appointments: Does Gender Make a Difference?” in Joseph F. Fletcher, ed., Ideas in Action: Essays on Politics and Law in Honour of Peter Russell (Toronto: University of Toronto Press, 1999) 176.
59. See Constance Backhouse, “The Chilly Climate for Women Judges” (Paper presented to the “Adding Feminism to Law: The Contributions of Madame Justice L’Heureux-Dubé” workshop, Ottawa, September 2002) and Hester Lessard, “Farce or Tragedy?: Judicial Backlash and Justice McClung” (1999) 10 Const. Forum Const. 65.
60. See generally The Honourable Claire L’Heureux-Dubé, “The Dissenting Opinion: Voice of the Future?” (2000) 38 Osgoode Hall L.J. 495.
61. Supra note 54 at 508. This is an interesting statement from Gold given that his conclusions in this article espouse the contrary view and resonate with my views that split decisions and dissents in Charter cases are positive.
62. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law]. Beverley Baines, “Law v. Canada: Formatting Equality” (2000) 11 Const. Forum Const. 65 at 67, describes the consensus as “… a bland, pedantic portrayal of judicial unanimity,” as compared to earlier (and later) “… robust factionalism...” While it lasted, the Law consensus led to problematic decisions like Lovelace v. Ontario (A. G.), [2000] 1 S.C.R. 950 and Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703. However, the consensus was short-lived as evidenced by the split decision in Lavoie v. Canada, 2002 SCC 23 [Lavoie] that followed not long after.
63. Supra note 54 at 529.
64. Canada (A.C.) v. Mossop, [1993] 1 S.C.R. 554 [Mossop], Egan, supra note 52; and Vriend, supra note 51.
65. Sadly, this may be more true than I would like to admit and we may see the positive Charter decisions of the last few years become dissents in future cases. For example, the Supreme Court’s recent decision in R. v. Shearing, 2002 SCC 58 [Shearing], is, in my view, a troubling retreat from its earlier decision in R. v. Mills, [1999] 3 S.C.R. 668 [Mills].
66. Petter & Hutchinson, supra note 14 at 536.
67. For a comprehensive examination of section 15 cases, see Sheilah Martin, “Balancing Individual Rights to Equality and Social Coals” (2001) 80 Can. Bar Rev. 299.
68. See e.g. Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 (pregnancy discrimination) and Janzen v. Platy Enterpises Ltd., [1989] 1 S.C.R. 1252 [Janzen] (sexual harassment). For a more recent case see British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3 [BCGSEU] (aerobic standards for forest firefighters).
69. See e.g. R. v. Morgentaler, [1988] 1 S.C.R. 30 [Morgentaler] (abortion) which was brought and decided as a section 7 Charter case, although section 15 was discussed. Section 28 was raised as part of the constitutional questions that were before the Court and was argued by LEAF in its intervenor’s factum, but section 28 was not referred to in any one of the four separate judgments that were issued by the Court. See LEAF, Equality and the Charter: Ten Years of Feminist Advocacy Before the Supreme Court of Canada (Toronto: Emond Montgomery, 1996).
70. For example, the impossible distinction between direct and indirect discrimination that was finally dismantled in BCCSEU, supra note 67.
71. R.S.C. 1985, c. C-46, s. 251.
72. The other two Supreme Court decisions on abortion have not added to or revised the extensive discussion of the issues in Morgentaler. Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, an action to strike down subsections of the Criminal Code abortion provision so as to leave only the prohibition of abortion standing, was found tobe moot in light of the Morgentaler decision. Tremblay v. Daigle, [1989] 2 S.C.R. 530 raised the issue of the right of the would-be father of the fetus to be granted an injunction against the pregnant woman seeking an abortion. The father’s claim was dismissed under Quebec’s Charter of human rights and freedoms, R.S.Q. c. C-12, and the federal Charter was held not to apply to a private claim. 1 n addition, there have been other cases addressing reproductive issues. R. v. Sullivan, [1991] 1 S.C.R. 489 dealt with the status of a fetus in the context of criminal charges laid against midwives; Winnipeg Child and Family Services (Northwest Area) v. D.F. G., [1997] 3 S.C.R. 925 dealt with the application of child protection provisions to a fetus.
73. Fudge, supra note 45 at 55.
74. See cases supra note 71.
75. This disturbing reluctance on the part of the Court to explicitly frame an issue as one of sex equality, even when a substantive sex equality analysis is applied, runs throughout the Charter cases. For a recent example, see Shearing, supra note 64, where the issue is framed exclusively as one of privacy rather than one of sex equality.
76. Morgentaler, supra note 68 at 171.
77. It is perhaps self-serving to say this because I have been an active participant in the work of LEAF since its inception in 1985. But I think that the Court’s positive movement over the course of these sexual assault cases and its greater, albeit hesitant and not unanimous understanding of the gendered nature of the problems that infect the law's handling of sexual assault are in large part due to the arguments LEAF has put forward in its interventions in these cases and its related advocacy work. It intervened before the Supreme Court in over half of the sexual assault cases and in two of the three pornography cases.
78. As there is a separate article on sexual assault and the Charter in this issue, I will make only a few general comments on the topic. See Lise Gotell, “The Ideal Victim, the Hysterical Complainant, and the Disclosure of Confidential Records: The I mplications of the Charter for Sexual Assault Law” (2002) 40 Osgoode Hall L.J. 251.
79. See Christine Boyle, Sexual Assault (Toronto: Carswell, 1984).
80. See An Act to amend the Criminal Code (sexual assault), S.C. 1992, c.38; An Act to amend the Criminal Code (self-induced intoxication), S.C. 1995, c.32; and An Act to amend the Criminal Code (production of records in sexual offence proceedings), S.C. 1997, e.30. These lengthy preambles refer explicitly to the prevalence of sexual violence against women and children and to the particularly disadvantageous impact of violence on the equal participation of women and children in society and on the Charter rights of women and children, with specific mention of sections 7, 15, and 28.
81. Justice Lamer dissented in part.
82. Justices L’Heureux-Dubé and Gonthier dissented on this point.
83. Justice McClung’s decision in R. v. Ewanchuk, [1998] 6 W.W.R. 8 (Alta. C.A.), and the responses it generated are glaring examples that these anti-woman views are still very much in operation among judges and among the public.
84. Seaboyer, supra note 40 at 707. See also Lessard, supra note 58 and Joanne Wright, “Consent and Sexual Violence in Canadian Public Discourse: Reflections on Ewanchuk” (2001) 16 C.J.L.S. 173.
85. M. v. H., [1999] 2 S.C.R. 3 [M. v. H.].
86. R.S.O. 1990, c. F-3.
87. The decision is emphatically limited to this narrow ground. The frequency with which the Court insists that this case is not about the right to marry—that this appeal “has nothing to do with marriage per se,” that marital rights and obligations “play no part in this analysis,” that “there is no need to consider whether same-sex couples can marry,” all statements made within a single page (at 48-49) and as part of the introduction to the section 15 analysis—is staggering. The decision clearly has implications for the right to marry and will be used to further the argument for that right. While this case does not decide that issue, it is not unrelated to it, as is clear from Justice Gonthier’s dissent and his concern that “a constitutionally mandated expansion of the definition of spouse would open the door to a raft of other claims” (at 90) and from Justice Bastarache’s comments relating to the possibility that the implications of the decision in this case may be greater than initially anticipated (at 157). The Court’s discomfort with the homosexual marriage question is palpable and disconcerting, and is indicative of the entrenched position of the institution of heterosexual marriage. But the Court will have to deal with the right of gays and lesbians to marry and I sincerely hope that when it does, there is a gender analysis brought to bear on the question. The right to marry is a contentious issue among lesbian feminists because marriage has been, and arguably still is, an oppressive institution for women. From my perspective, a gendered analysis leads to the conclusion that it is not appropriate for the state to endorse marriage for anyone at all. This would leave the right to marry open to anyone but would divest it of legal significance. The state would continue to apportion rights and obligations incurred as a result of intimate and other relationships in which economic dependency may arise.
88. I think that this is appropriate—the fact that this was a lesbian couple, not a gay male couple, is irrelevant to the analysis. But I do think that the question of the potential relevance and impact on the suspect categories of discrimination should always be asked as an essential component of a substantive equality analysis.
89. Supra note 85 at 48.
90. Contrary to the implications of Justice Cory’s statement, I expect that most men who are claiming spousal support are doing so because they have undertaken primary responsibility for the traditionally female tasks of child and home care.
91. This is something the Supreme Court recognized in Janzen, supra note 67.
92. Supra note 85 at 64-69. For a feminist critique of these reforms as exacerbating the more severe gender inequalities by furthering the property interests of middle- and upper-class women at the expense of the support needs of lower-income and poor women, see Martha Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (Chicago: U niversity of Chicago Press, 1991), c. 3.
93. Supra note 85 at 104.
94. Ibid. at 189.
95. Sex is the biological division and gender is the socially constructed division. There is significant overlap but the terms are not synonymous.
96. See e.g. P.(D.) v. S.(C.), [1993] 4 S.C.R. 141 and Young v. Young, [1993] 4 S.C.R. 3, which are confusing decisions relating to the application of the Charier to the “best interests of the child test” in which the majority decisions were that the Charter did not apply or that there was no Charter violation. The “best interests of the child test” is exactly the kind of positive-sounding family law rule that cries out for a thorough gender-equality analysis.
97. Martha Fineman, The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies (New York: Routledge, 1995) at 15.
98. Many men do not fit or do not want to fit the traditional male worker model either.
99. See e.g. Naomi Klein, No Logo: Taking Aim at the Brand Bullies (Toronto: Vintage Canada, 2000).
100. 3 S.C.R. 229 [McKinney].
101. See e.g. Saskatchewan (H.R.C.) v. Saskatoon (City of), [1989] 2 S.C.R. 1297; Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103.
102. Supra note 100 at 433-34 [footnotes omitted].
103. Schachter v. Canada, [1992] 2 S.C.R. 679 [Schachter].
104. Women in the United States have had a terrible time attaining maternity leave protection and paid benefits and the impact on mothers in the paid workforce has been devastating.
105. Possibly when there is an obvious comparator group, formal equality is the appropriate analytic approach, and a substantive equality analysis should be applied when there is no such readily apparent comparison and the comparative focus should be diffused or even abandoned.
106. S.C. 1996, c. 23.
107. Canada (A.C.) v. Lesiuk (November 2002), A-281-01 (F.C.A.) (relating to part-time workers’ eligibility for benefits) and Miller v. Canada (A.G.), 2002 FCA 370 (relating to the impact of the receipt of maternity benefits on a woman’s eligibility for regular benefits).
108. See Gwen Brodsky & Shelagh Day, “Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to Poverty” (2002) 14 C.J.W.L. 185.
109. Martha Jackman, “What’s Wrong with Social and Economic Rights?” (2000) 11 N.J.C.L. 235 at 243.
110. See e.g. Schachter, supra note 103 and Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624.
111. See Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 59 O.R. (3d) 481 (C.A.) [Falkiner].
112. Symes v. Canada, [1993] 4 S.C.R. 695 [Symes].
113. See Audrey Macklin, “Symes v. M.N.R.: Where Sex Meets Class” (1992) 5 C.J.W.L. 498.
114. Symes, supra note 112 at 765.
115. It is interesting in this regard to note that Justice L’Heureux-Dube has referred to Symes as containing the first use of substantive equality in a Supreme Court decision. See The Honourable Claire L’Heureux-Dubé, “A Conversation About Equality” (2000) 29 Denv. J. Int’l L. & Pol’y 65 at 69, n. 20.
116. Gosselin c. Québec, [1999] J.Q. No. 1365 (C.A.) (QL).
117. For information on this case, see http://dawn.thot.net/Kimberly_Rogers.
118. Falkiner, supra note 111 at 514.
119. Mari J. Matsuda, “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method” (1989) 11 Women’s L. Rep. 7 at 8.
120. See McIntyre, supra note 5.
121. Supra note 19.