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2 - Using the Canadian Charter of Rights and Freedoms to Constitute Women

Published online by Cambridge University Press:  14 January 2010

Beverley Baines
Affiliation:
Associate Professor in the Faculty of Law, Queen's University, Kingston, Ontario, Canada
Beverley Baines
Affiliation:
Queen's University, Ontario
Ruth Rubio-Marin
Affiliation:
Universidad de Sevilla
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Summary

In 1867, Britain gave its Canadian colonies a written Constitution that imposed a federal system of parliamentary government. While making jurisdiction a constraint on law-making, this Constitution did not provide Canadians with human rights protections (although rights such as freedom of contract and private property received common law protection). The legislatures could pass laws denying women the right to vote, hold public office, serve on juries or in the armed forces, immigrate, perform certain jobs, have an independent domicile or continue to work after marriage, dispose of property, have an abortion, receive unemployment insurance after giving birth, retain aboriginal status on marrying a non-aboriginal, or retain Canadian citizenship on marrying a non-Canadian. Whenever litigants challenged these laws by invoking international, statutory, or unwritten human rights protections, most Canadian judges refused to recognize their claims. Thus, constitutional litigation was not a viable strategy for women.

This picture changed significantly when the existing Constitution was supplemented by new constitutional provisions in 1982. Prominent among these changes was the Charter, which delineates seven major rights: political (religion, expression, assembly, and association), democratic, mobility, legal, equality, language (official and minority educational), and aboriginal rights. Canadians may assert Charter rights against both levels of government, albeit not against private actors unless they are carrying out a governmental function. This rights protection regime transformed the system of government from parliamentary to constitutional supremacy by assigning the enforcement of Charter rights to the regular courts.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2004

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References

Ellen Anderson, Judging Bertha Wilson: Law as Large as Life (Toronto: University of Toronto Press, 2001)
Baines, Beverley, “Formatting Equality” (2000) 11 Constitutional Forum65Google Scholar
Anne F. Bayefsky and Mary Eberts, eds., Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985)
Susan B. Boyd, Child Custody, Law, and Women's Work (Don Mills, ON: Oxford University Press Canada, 2003)
Canadian Journal of Women and the Law (1985) Volume I and following
Macklin, Audrey, “Symes v. M.N.R.: Where Sex Meets Class” (1992) 5 Canadian Journal of Women and the Law498Google Scholar
Randall, Melanie, “Accountability of Public Authorities, Sex Discrimination and the Public/Private Divide in Tort Law: An Analysis of Doe v. Metropolitan Toronto (Municipality) Commissioners of Police” (2001) 26 Queen's Law Journal451Google Scholar
Julian V. Roberts and Renate M. Mohr, eds., Confronting Sexual Assault: A Decade of Legal and Social Change (Toronto: University of Toronto Press, 1994)
Lynn Smith and Eleanor Wachtel, A Feminist Guide to the Canadian Constitution (Ottawa: Canadian Advisory Council on the Status of Women, 1992)
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