- Introducing the Women's Court of Canada
The Beginning . . .
8:00 PM, 27 February 2004—the end of a long day. Ten feminist equality/ Charter1 activists, lawyers, and academics are sitting around a long table eating pasta and drinking red wine in an Italian restaurant in downtown Toronto. We have spent the day together talking about section 15 of the Charter—recent cases, recent losses. We have been pushing ourselves and our thinking, strengthening and developing our equality analysis, trying to respond to the challenges of intersectionality and of "competing rights." We have been strategizing about how to move forward with our ideas. Over the course of the day, we have had moments of exhilaration, moments of intense debate and discussion, and some break-through eureka moments. It has been an exciting, productive day full of possibilities. Yet despite all of these positives, the day has been overshadowed by an overriding sense of gloom brought on by what we all see as grievous judicial backsliding on equality. At the end of the day, we are pretty subdued. We are feeling disheartened, angry, frustrated. Women's equality is painfully far from being a reality—too many women live in poverty, unable to feed and house themselves and their children adequately; lesbians are merely tolerated, mostly regarded as a deviant lifestyle, sometimes targeted for hate and violence; women with disabilities are still denied basic access to transportation, employment, and autonomy; racialized women are stigmatized and marginalized, and, in the post 9/11 political climate, some are perceived as potential terrorists; Aboriginal women are disappearing—raped, murdered, and discarded. The issues are urgent; there is much equality work to be done. But, politicians and Supreme Court of Canada judges alike seem to think that women have largely attained equality and that other issues (balanced budgets and national security) should take priority over equality. We are losing equality ground; we are in danger of losing our equality footing.
Equality has experienced some terrible setbacks in recent Supreme Court of Canada decisions.2 The impact has been devastating, not only for the [End Page 1] claimants and the issues before the Court, but also for equality jurisprudence and advocacy more generally. Although the rhetoric of substantive equality continues, the promise of genuine substantive equality is fading and the voices of equality advocates are being muted. More and more frequently, the courts are denying intervenor status to women's and social justice groups. They think they have heard what we have to say, even though, as new and complex equality issues continue to surface in these troubling times, we are bursting with new ideas and new directions to explore in the pursuit of equality. When we are allowed in, our arguments before the court are too often dismissed or ignored.
There is a burning need for action. Yet, given the legal hierarchy—which is the power structure within which those of us at the restaurant table have chosen to fight for equality—it is hard to know where to gain the entry we are being denied and how to have our ideas accorded the serious attention they warrant. This was the conversation around the dinner table. We were in that kind of disheartened state that can spiral down into despondency or that can spark into action and energy. As we momentarily teetered on the brink of hopelessness, someone burst out with: "So why don't we show them how it could have been done, what substantive equality would look like in those cases? Why don't we rewrite these decisions that are so wrong?" The spark was ignited, and the Women's Court of Canada was created.
The Women's Court of Canada follows in an admirable tradition of Canadian women refusing to take a decision of the Supreme Court of Canada as the final word. We have a long history of determined and creative women seeking redress beyond the Supreme Court of Canada. When we have been shut out of one forum, we have sought out another venue in which to make our argument and press for equality. In 1929, in the famous Persons case, Canadian women had to...