- Rewriting Equality II
The idea of the Women's Court of Canada (WCC) was hatched fourteen years ago, and since then, rewriting judgments from a feminist perspective has swept the globe. The idea has been taken up in England and Wales,1 Australia,2 Ireland and Northern Ireland,3 the United States,4 and Aotearoa New Zealand.5 A collection of rewrites of international judgments is forthcoming.6 A project is starting up in India7 and Scotland8 as well as one focused on Africa,9 and a Latin American project is planned.10 Feminist doctrinal scholarship is enjoying a resurgence in part through this creative form of critique. Equally exciting is the project underway to rewrite Canadian Aboriginal rights cases.11 [End Page i]
The WCC is distinctive beyond having been first. At the project's origins, we decided to take up "rewriting equality"—that is, reconsidering Supreme Court of Canada judgments about section 15 or equality, more generally, as a constitutional norm. Other projects have ranged over a wide array of legal issues—from contracts to criminal law to tax—and have traversed the centuries. We decided to take advantage of the relative youth of our constitutional equality jurisprudence to focus more narrowly but, as we hoped in our heart of hearts, perhaps with more transformative potential. In principle, it is possible to rewrite every Supreme Court of Canada equality judgment—after all, there are not that many of them. Doing so might just allow the emergence of an intelligible competing vision of how substantive equality should unfold as a constitutional norm. Or so we hope. The first volume of WCC judgments was meant to blaze a path to be pursued by future members of the court. With this second volume, we carry the project forward. It includes some continuing members of the court and some newcomers. Indeed, we are especially pleased to celebrate the appointment to the WCC of one of our former clerks, Kasari Govender. We welcome this opportunity to remind old friends of our existence and introduce a new generation of feminist scholars and advocates to the possibilities of feminist judgment writing.
Our project was born of frustration at the wheel-spinning that characterized Canadian equality jurisprudence. Diana Majury eloquently evokes that feeling in her beautifully crafted introductory article to the first volume of the WCC judgments.12 That was the mood in 2004 in the wake of cases like Law v Canada, Gosselin v Quebec, Granovsky v Canada, Hodge v Canada, and Auton v British Columbia.13 The ideal of substantive equality that feminist scholars, lawyers, and activist organizations had tried so hard to plant in Canadian law was not taking root. Lip service and obfuscatory rhetoric could not disguise the fact that substantive equality seemed further and further out of reach. We thought, at that workshop dinner in 2004, that we could do better. We set out to show how to breathe life into the ideal.
But no sooner had the first volume of judgments been published than the Supreme Court of Canada (SCC) handed down its decision in R v Kapp.14 [End Page ii] Although the Supreme Court clearly thought it was protecting the ability of governments to act affirmatively to create programs designed to foster equality for disadvantaged groups, the judgment instantly set off alarm bells in equality-seeking circles. The Court signalled its retreat from a line of section 15(1) jurisprudence that itself had been unpopular, but when the other shoe dropped—the new approach to section 15(2)—the cheers turned to tears. The Supreme Court, in undertaking an excursion into section 15(2) without the benefit of full argument, seemed not to have grasped the implications of its new approach. But it got worse; the regressive tendencies in the Kapp approach were aggressively exploited by government lawyers to brand, as "ameliorative," programs with eligibility criteria that reinforced existing inequalities rather than dismantling them.15 Worse still, the Supreme Court case law post-Kapp seemed to be narrowing the remedial reach of section 15 yet again.16
Indeed, rereading Majury's article in 2018 brings home how little has changed. Equality law...