As Canadians prepare to celebrate National Law Day on April 17, which this year marks the 40th anniversary of the signing of the Charter of Rights and Freedoms, Professor Beverley Baines, Law’73, provides a history lesson on a critical component. In the late 1970s and early 1980s, feminist advocate Baines was actively involved in the struggle to entrench gender rights into what would become the Canadian Charter. Professor Baines reflects on what was happening during the lead up to Charter signing and shares her perspective on the status of gender rights today. 

What sorts of issues or factors drove the advocacy for gender rights to be codified in the Charter?

How politicians and judges blatantly discriminated against women; the former when they passed laws and the latter when they applied these laws to women’s claims for basic human rights. Invariably they treated women differently from men, with the treatment of men constituting the norm for legal personality. For example, in 1960 when the Diefenbaker Conservatives enacted the Canadian Bill of Rights, the then-Minister of Justice, Davie Fulton explained that sex equality meant women and men were different, not equal. His explanation told women we were not “persons” contrary to what a British court had ruled 40 years earlier in Canada’s Persons case. 

In the 1970s the Canadian Supreme Court denied that the Indian Act discriminated against Indigenous women who married non-Indigenous men when it caused them to lose their Indian status even though when Indigenous men married non-Indigenous women, they did not lose their Indian status. In this case, the Canadian Bill of Rights, which had been enacted to provide Canadians with certain rights under Canadian federal law in relation to other federal statutes) failed to protect Indigenous women Yvonne Bedard and Jeannette Lavell. 

The Canadian Bill of Rights also failed to protect Stella Bliss’s claim for benefits under the Unemployment Insurance Act by reasoning that her pregnancy was due to nature, not the law. Fulton’s words and those the Canadian Supreme Court used to deny the women equality rights under the Canadian Bill of Rights presaged how the draft Charter of Rights and Freedoms would also fail women who asserted their equality rights under the constitution.

Why, when, and how did you get involved to have gender rights codified in the Charter?

Immediately after the Liberals published the first draft of the Charter, I sent a letter to the Canadian Advisory Council on the Status of Women (CACSW), asking them to take the leadership in proposing revisions to the Charter, especially to the sex equality rights provision in Section 15(1). At virtually the same time, Mary Eberts (a constitutional lawyer and academic who went on to co-found the Women's Legal Education and Action Fund (LEAF)) sent much the same advice to the CACSW. Mary and I appeared with CACSW at the Parliamentary Committee to argue for the changes we proposed, most of which were accepted. I also participated in the Ad Hoc Conference of Women on the Constitution in February 1981, an event that led to the addition of a new sex equality provision, Section 28, in the Charter. After 40 years, this provision has finally made it on to the constitutional law agenda with Quebec’s invocation of the override to protect the discriminatory restrictions on religious symbols and facial coverings in the Laicity Act (aka Bill 21).

What sorts of things did you do, both inside and outside the classroom, in the early 1980s for this purpose?

I was teaching a Women and the Law Course, inspired by the students who were unaware of the significance of Canada’s Constitution for women’s rights but very aware of the ways in which women were harmed by violence, underpaid for their work, and subordinated in familial contexts. I became an activist of sorts, serving on the boards of directors of several new professional and community groups that focused on gender equality: the Canadian Journal of Women and the Law (published by the National Association of Women and the Law), the Kingston Rape Crisis Centre, and Kingston’s Interval House. I also tried to write and present papers on women’s legal issues generally, as well as on our constitutional rights.

What types of challenges did advocates such as yourself face and how did you deal with them?

I focused my advocacy challenges on my colleagues across the University. We formed the Association of Women Teaching at Queen’s (AWTAQ) to do the groundwork of identifying the many ways in which sex discrimination impacted women faculty members, as well as providing a support mechanism for women faculty who were facing oppression in their “home” departments. The 1980s were hard days for faculty women who tried to address women’s issues because we were not taken seriously, we were not given recognition for trying to improve the lives of the students we taught, and we received no or paltry support from the central administration to promote our efforts to integrate women’s issues into the curriculum. 

How did you feel when you learned that gender rights would be entrenched in the Charter or what do you recall about that time?

Hopeful, but not blind to the maxim “one step forward, two steps back”, which became an accurate description of the first women’s equality cases in the lower courts and ultimately at the Canadian Supreme Court. A Queen’s Law graduate, Beth Symes (Law’76, a lawyer and LEAF co-founder), brought the first sex equality case to the Canadian Supreme Court, seeking to redefine the business tax deduction to include nanny expenses. She lost in a case that divided the Court, seven men against the two women, Justices Claire L’Heureux-Dube and Beverley McLachlin who wrote superb dissents. It took almost 30 years after Beth’s case for women to win a sex equality case at the Canadian Supreme Court and for women to win a second case that redefined job-sharing.  

What would you like to say about gender rights in Canada today?

Mention “sex equality rights” and the public reacts as if the issue is history or alternatively, as if difference is a bad idea. Either way assimilationism is their preference, one that reminds me of the era when family meant a man and a woman were one, and that one was man. Today women are still assaulted and/or murdered by family members, by strangers, by predators; women are primary caregivers in the family, forced to resign their jobs, a dynamic that COVID-19 made very visible; women receive significantly less income from employment where they remain ghettoized, and glass-ceiled; and are still minorities in political representation and other contexts. Perhaps the scholars who argue for political parity, with caps on the number of men who participate, are right, especially as we look at how it is legislators who initiate the threats to abortion rights in the United States.  

Is there anything else you would like to say about the 40th anniversary of the signing of the Charter?

What I celebrate are the law students, female and male, who care about Charter rights and believe we need both legislatures and courts to protect them. Restricting this protection to only one institution, as is sometimes argued, will not protect women. Forty years ago, the activists who lobbied for stronger constitutional protections for women knew better than to trust or give primacy to either legislatures or courts. Each new generation begins by mostly trusting, until they do not. The Charter is by no means anywhere near perfect, but it has given the courts a judicial review function that has the potential to protect, preserve and promote women’s equality-seeking under the Charter, statutory human rights codes, and a myriad of other discriminatory laws.  

Professor Beverley Baines is a public and constitutional law expert specializing in Charter rights. A long-established equality rights advocate, she served as a feminist constitutional consultant to the Canadian Advisory Council on the Status of Women and to the Ad Hoc Committee of Women on the Constitution during the Charter debates of 1980-1982. She is currently working on the project, “No Rights Are Absolute,” funded by the Social Science and Humanities Research Council.