Gender Equality Litigation – Who’s Counting?
This morning’s Globe and Mail features a prominent advertisement for Queen’s University:
The bold statement is hard to miss:
But is it quite true? To get a definitive answer we will need to wait for Kerri Froc‘s book. She is writing the first comprehensive examination of its history, interpretation and potential application with the goal of ensuring the Charter delivers on its promise of a fair, equal and democratic society for all Canadians.
In the interim, we can argue about why cases like M. v. H., 1999 CanLII 686 (SCC), [1999] 2 SCR 3, won by Martha McCarthy and Lynn Lovell or Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] 2 SCR 418, won by (now Justice) Giovanna Roccamo, don’t count.
The one about whether the charter’s equality guarantees extend to same sex relationships, and the latter on whether standard automobile insurance policies set by provincial legislation which extended benefits only to married “spouses” of policy holder breached the Charter rights of unmarried couples. The entire extension of gay rights was built on M. v. H.
Perhaps these cases aren’t about women’s rights, but they are about how equality rights should be interpreted and extended.
The larger point made by Professor Froc is clearly valid – she contends that women’s rights “have languished despite the Charter’s general equality clause, s. 15. It really has been a disappointment for women”. She wonders about the potential use of section 28, which has not informed much recent jurisprudence.
The quote ends with the statistic I’m quibbling with: “For example, there hasn’t been a successful sex equality case brought by a woman at the Supreme Court of Canada.”
Can any Slaw readers find any other cases? Or explain what counts as a “sex equality case won by women at the Supreme Court of Canada”.
Of course there have been important equality law victories, some of them involving women as plaintiffs or advocates. But Kerri Froc is talking about Charter claims by women alleging discrimination based on sex. She is correct – none have been successful in the Supreme Court.
In response to your inquiry, I would suggest that pay equity cases may fall under the general heading of “sex equality cases”. In that regard, there has been mixed success at the Supreme Court of Canada. Three cases come to mind:
– Newfoundland (Treasury Board) v. N.A.P.E. 2004 S.C.C. 66
– Public Service Alliance of Canada v. Canada Post Corp. 2011 S.C.C. 57
– Canada (Human Rights Commission) v. Canadian Airlines International Ltd. [2006] 1 S.C.R. 3.
I think that if you have to parse hairs about whether or not a case is about women’s rights or if you have to redefine what a “women’s rights” case is (eg. that it’s about “equality rights”), then you’ve kind of proven Professor Froc’s point.
Actually Emanuela, Professor Froc’s comment was about the gender of the successful advocate.
And the three cases that you cite are gender equality cases, but they weren’t won by female advocates.
In Newfoundland (Treasury Board) v. N.A.P.E. 2004 S.C.C. 66, the party represented by Sheila H. Greene and Paula M. Schumph (that is the appellants) lost.
In Public Service Alliance of Canada v. Canada Post Corp. 2011 S.C.C. 57, David Yazbeck, James Cameron, Andrew Raven and Andrew Astritis were the successful counsel for the Union.
In Canada (Human Rights Commission) v. Canadian Airlines International Ltd. [2006] 1 S.C.R. 3, one of the three counsel for the successful respondent (the appeal being dismissed) was a woman (Andrew Raven, David Yazbeck and Karen E. Ceilidh Snider, for the respondent the Canadian Human Rights Commission) but my recollection was that she was junioring to the two senior counsel.
If Professor Froc’s comment was about the gender of the successful advocate, I think the Queen’s U. Press ad is at best unclear, at worst misleading; and for me, the original comment did not clarify it.
I suppose we’ll have to wait for Professor Froc’s book to see how many cases of ‘pure’ sexual discrimination have made it to the SCC, and how widespread is the reaction that the cases had more merit than the court concluded they had.
I disagree with Andrea’s implied (to me, anyway) suggestion that one cannot judge the Court’s commitment to freedom from discrimination on the grounds of sex by looking at other s. 15 cases like those on sexual orientation or marital status or pay equity.
I certainly did not read the original post or the comments up to #4 to suggest that the concern was about the sex of the advocates. Neither s. 15 nor s. 28 speaks to the choice of counsel, so long as a man or a woman (or someone in between) can qualify as a lawyer and appear before the court.
Just to clarify “won by women” refers to women as claimants, not women as counsel.