Many of the women who fought for the inclusion of equality guarantees in Section 15 of the Canadian Charter of Rights and Freedoms knew that it was critical for a feminist voice to be heard as the courts across Canada interpreted this new overarching constitutional provision. The founding mothers of LEAF knew that a profound shift in how the courts understand inequality and remedies had to occur for these provisions to actually protect and promote women’s equality. When Section 15 was included in the Charter, men were still allowed to rape their spouses, women were sent to jail for “welfare fraud” if they were collecting benefits while dating a male, “no” meant “yes” to sexual assault far too often, and women could be sexually harassed in the workplace without protection or redress.
The day after Section 15 of the Charter came into effect on April 17, 1985, LEAF filed a court challenge to the way the Ontario government dispensed welfare and family benefits in a challenge to the “spouse in the house” welfare rule. From that moment on, LEAF brought court challenges using Section 15 and intervened in key cases, particularly at the Supreme Court, brought by others who often tried to use the equality provisions to try to roll back any progress that had been made for women.
As Helena Orton, LEAF’s Litigation Director in 1989, stated: “LEAF’s approach to equality has always been based on the view that women, as a disadvantaged group, suffer inequalities in life due to systemic discrimination or deep-rooted sex bias which pervades society’s institutions and attitudes rather than to inequality on the face of the law…The lower courts have generally viewed equality as a question of sameness and difference..Those who tended to gain the most from the “similarly situated” test, as this is known, were white, privileged men and corporations.” The Supreme Court of Canada in its first ruling on the interpretation of Section 15 adopted much of LEAF’s arguments in the Law Society of British Columbia v. Andrews et al. The Court rejected the “similarly situated test” as seriously deficient, arguing that it frequently produces serious inequality. Over time, the courts have largely adopted a substantive equality approach such that what is important in determining if a law, regulation, or policy discriminates against women or other disadvantaged groups is whether or not its impact undermines equality or produces inequality.
In the first years of operation, LEAF protected women from cross-examination about previous sexual activities and reputation in the Seaboyer and Gayme interventions. Employers were held responsible for allowing a poisoned work environment such that sexual harassment thrived in the Janzen and Govereau. Ontario Workers’ Compensation was required to compensate for loss of income in the wake of stress-related illnesses caused by sexual and racial harassment. Health benefits were secured for same sex partners. Discriminatory treatment of women prisoners, pension rights, family law provisions, equal pay, income support for low income women, domestic workers’ exclusion from labour laws, hate law challenges, and sexual assault provisions have all been the subject of LEAF’s unabashedly feminist legal critique.
Much has been gained, and progress has been protected by LEAF and other champions of women’s equality. However, what LEAF and other feminists fought for thirty years ago and the gains made then are surprisingly fragile in the face of the still pervasive biases and systemic sex discrimination women and girls still face in Canada. The same spectre of discriminatory treatment ofthat women and children who have been sexually assaulted still face in our courts means that most women and children still do not report rape as we know too well how we will be treated by the criminal justice system. Fortunately, LEAF is still fighting the good fight, as are many others.
Executive Director of LEAF from 1986 to 1992
To read more about some of LEAF‘s cases, click here.