Women’s Equality and the Charter of Rights and Freedoms
Introduction: Canadian women began mobilizing in anticipation of constitutional reform in 1980. After a series of mass actions, conferences and lobbying, women across Canada were successful in achieving significant amendments to the Section 15 equality rights by January 1981. Between 1982 and 1985, women worked to get additional provisions added to the charter which were needed to guarantee equality to male and female persons. These were eventually accomplished with the acceptance of Section 28 which, together with Section15, established women’s constitutional right to equality.
Nancy Ruth, Linda Palmer Nye and Marylou McPhedran talked to Rise Up about the importance of the struggle and also explained the importance of Section 15.
Sue: Today, we’re discussing Women’s Equality and the Canadian Charter of Rights and Freedoms. And I want to start with all of you introducing yourselves, as I know that you played very important roles in this process.
So let’s start with you, Nancy Ruth.
Nancy: I moved to Toronto in 1978 and ran into the [National Action Committee on the Status of Women] NAC, and all the anxiety about the possibility of the repatriation of the British North America Act and a possible charter. I got involved.
Sue: Okay, and Linda, do you want to introduce yourself, say a few words about yourself?
Linda: Well, I’d probably start with being the co-coordinator of Women for Political Action at the time all of this event blew up to some extent.
And we were working already with women, helping to prepare them for office at any level that they were interested in. So we were pretty busy with political issues at that time to prepare them for the answers that they would need.
And other than that, I also was working with CCLOW, the Canadian Council on Learning Opportunities for Women (CCLOW), a Canadian organisation, because my background as a teacher led me there.
And we ended up presenting to the hearing, so that was probably my biggest tie-in at that point in the seventies. Everything started to happen in the seventies.
Sue: Thank you. How about you, Marilou, can you introduce yourself, please?
Marilou: I had quite recently graduated from law school in Toronto. I was born and raised in Manitoba, but I went to university and law school in Toronto.
And I went to a meeting to listen to women talking about concerns. Prior to that, I had been at the Women for Political Action dinner, which followed a study day at Toronto City Hall, that was facilitated by Doris Anderson and her legal counsel – her primary legal counsel, Mary Eberts.
And I had just been captivated by what they were saying about the importance of the new Constitution for women. And that night was the dinner, so that was the first time I ever saw Linda Nye, one of the co-hosts for the dinner.
And at the dinner, the keynote speaker was the then Minister for the Status of Women, Lloyd Axworthy. And it was truly offensive, the condescending way in which he responded to women in the audience.
Sue: Nancy Ruth, why don’t you start with this? Maybe you can provide us with the background to what was happening in government? What was it proposing that was going to be so detrimental to women?
Nancy: Trudeau was repatriating the British North America Act and proposed a new Charter of Rights and Freedoms. In it, part of the Equality Clause was based on Diefenbaker’s Bill of Rights, and that had been seen by various legal cases as insufficient.
Women did not win under it, and so women were concerned; this was not good enough. And as a result of that, Linda and I, and others, called the Cow Café meeting, and we all met.
Sue: Okay, so that was what was proposed, was the Bill of Rights, right? This is the –
Nancy: Something similar to it.
Marilou: The charter.
Nancy: And all the experts that had been asked about it, of course, were men. There weren’t any women’s voices in that discussion of whether that was sufficient.
Linda: In September 1980, women, and mostly women in women’s organisations – we had a number of them by then – were promised by the CACSW, [Canadian Advisory Council on the Status of Women] a conference on Constitutional issues.
They postponed it in September and we were given reasons, but many women did not buy those reasons. Then in October, to celebrate October 18th Person’s Day, Women for Political Action, we were having our monthly meeting. NAC (National Action Committee on the Status of Women) asked to join us.
So we had a double meeting with about two hundred women. And we focused on the Constitution, so there was some discussion. And then the dinner speaker was, as Marilou has pointed out, the minister responsible for the status of women, and that was Lloyd Axworthy.
So we had had a chance before dinner to really come to terms with the major issues in this Charter of Rights, which seemed to be the 1961 Bill of Rights, with the Bill of Rights scratched out and the Charter of Rights written in.
And our biggest concern was that this was now going to be probably inside the Constitution, and therefore more powerful than the Bill of Rights, which had never proven any usefulness for women.
So what happened at that dinner was that I asked Mr Axworthy for his speech, and he told me he was going to wing it – his words. During the speech, he asked these two hundred knowledgeable women, worried women, to take a leap of faith. And that was the beginning of everything, I think.
And then in November, NAC and a number of other organisations went to the hearings and presented at the hearings. And those hearings were televised. And as I mentioned to you, to watch, to see the expertise of women in their presentations, it was such a moment of being proud and being very moved by how much we knew and how much we knew what we needed.
So when Harry Hays responded to NAC’s brilliant presentation with, well, if all you girls are working, who’s looking after the babies? That, on top of Lloyd, gave us our two men to, you know, initiate a lot of anger.
And that anger was propelled into a mass movement when Lloyd Axworthy cancelled in January, the conference that we – we had our bags packed and ready.
Sue: Yeah, thank you.
Linda: So I just called a couple of women to meet at the Cow Café and the next thing you knew, there were a dozen women there. And we said, they don’t tell us whether we can go to Ottawa, and we –
Sue: Thank you, Linda.
Marilou: I want to reinforce how Linda described the importance of the dinner in October of 1980.
And in fact, I think it’s also very important in terms of understanding feminist history, the role that Doris Anderson, then Chair of the Canadian Advisory Council on the Status of Women, and her two main legal advisors, Mary Eberts and Bev Baines, played in preparing women with the knowledge that they needed to understand the significance of putting a Charter of Rights and Freedoms inside the Constitution.
And the other context that’s important, is to remember that exactly this time was when American women were about to lose their latest attempt to change their Constitution and to create an equal rights amendment in their Constitution. So that heightened our awareness for many of us. And then the knowledge that was shared by Doris Anderson across the country, made for a very informed activist movement potentially.
And I remember very well, Kay MacPherson taking me aside and saying, the moment you get to Ottawa – when are you going? I said, I could go tomorrow. The moment you get to Ottawa, you need to call a woman named Pat Hacker. And that was what, in turn, led me to the ongoing involvement with the conference in 1981.
Linda has mentioned the NAC presentation when Senator Harry Hays, who was co-chairing the Joint Constitutional House of Commons and Senate Committee, which was in fact, the first parliamentary committee ever to be televised in Canada. And they had millions of viewers.
So the way in which this rippled throughout the country, when Harry Hays was so condescending and dismissive towards the women at that meeting, I was sitting right behind Lynn McDonald, then the President (of NAC), because I had gotten into Ottawa and had heard about this, and had contacted someone, and they told me to come down to this hotel, because they were preparing their presentation, and nobody was a lawyer.
So we worked through the night on the NAC presentation. And so I happened to be physically present in the room when Harry Hays made that statement. And it had a tremendous impact on me as a young lawyer, and completely changed the course of what I decided I needed to be doing.
I didn’t know it was going to go on for more than a year, but I certainly saw that this Constitutional committee and whatever was going to happen afterwards, that we had to get in there and make the changes.
But at the time, the Canadian Advisory Council on the Status of Women, was really leading on a lot of this. And so although NAC and others had a very strong presence, I certainly didn’t have the impression at that point that we were in a crisis.
That didn’t happen until January of 1981, and that’s when Doris Anderson quit as the head of the Canadian Advisory Council on the Status of Women.
Sue: So can you tell us about the background to Doris resigning, Nancy Ruth?
Nancy: Yes, I’d also like to say that Doris was always committed to public education. When she’d been the editor of Chatelaine, which was the largest-selling magazine in the Mclenas setup, she put all kinds of issues for women on the public agenda, like, abortion, for instance.
So Doris had this huge commitment and she wasn’t going to be shut up, she wasn’t going to be shut up at Macleans when she worked for that organization in Chatelaine, and she wasn’t going to be shut up by the minister who said, you can’t have your conference.
Now, I don’t remember the details, and perhaps the others do, as to why Lloyd Axworthy found it necessary to tell Doris she couldn’t hold her national conference. She had Beverley Baines and Mary Eberts; they had gone to the Victoria conference on the Constitution and they had done other things.
They had all kinds of background papers prepared, and here was this minister saying, nu-huh, no way.
Perhaps the other two could fill in why Axworthy found it necessary to politically shut Doris down.
Linda: Yes, there were a couple of things at work there, Nancy. One was that the Liberal government was about to hold their own kind of discussions and meetings, and they thought that women meeting at the same time in the middle of February might be an embarrassment.
And if they let us have the quiet research kind of conference, we probably would never have been an embarrassment.
The issue for Doris at that time was – what she said to me was – “I gave up the effort to change the CACSW, which is the main reason I took it on, took the leadership on in the first place”. So, when there was the postponement, she was upset at that. And then when there was the cancellation in January, that was the end for her.
Sue: So there was a whole year of organising before you actually got the changes to the wording, right.
Marilou: Oh, I’m just nodding back and forth to say that that’s not really correct. The organising happened in an incredibly short period of time, and it’s part of the miracle of Ad Hoc that it happened. I think a lot of the preparation that Linda was describing in 1980. But the actual lobbying focusing on changing the Charter was this amount of time.
Linda: Yeah, it was three weeks. Now, what went on for a year or so, Sue, were the efforts by CACSW to do good research and prepare good research papers. And also, you had all of these women’s organisations. There were about twenty that ended up appearing before the Joint Senate House of Commons Committee.
And we were all busy writing our briefs and seeing what changes needed to be made. But the actual Ad Hoc conference was in fact ad hoc. It was done between about January 21st and –
And we decided we would have it on the same day, because we felt that we should be able to have our conference when we were promised it. And we actually thought there might be just a couple of dozen women.
Sue: Okay, so what was decided at that conference, Marilou, can you tell us that?
Marilou: Yes, and again, I really mean it when I say that this conference was a miracle in itself. First of all, there was no funding. Second of all, we really weren’t welcomed in any way by the government of the day and it was NDP, Pauline Jewett, and Conservative, Flora MacDonald, and one Conservative senator, Martha Bielish, from Alberta, who stepped up and used their parliamentary privilege in order to secure a meeting place for us. And indeed, it turned out to be exactly the same place as where the Joint Constitutional Conference Committee had been meeting.
And out of that miraculous day, with a tremendous amount of dissention and different points of view and long line-ups at the microphone, and it was co-chaired by three of us who kind of moved in and out of the chairing, French, English, highly spontaneous. We actually ended up with an eleven by fourteen inch legal-sized piece of paper with resolutions. And those resolutions were voted upon and accepted by consensus by the end of the day. And that became the guiding document for those of us who stayed on and lobbied, Linda and I being among them. And that lobbying continued on day after day after day, and that went right through from the conference on February 14th, right through to the point at which we actually got a call to go to the Department of Justice building and to sit down with government lawyers to look at drafting the equivalent of an equal rights amendment to add into the charter.
And that was largely a result of the lobbying that we did with each of the political caucuses after the Ad Hoc conference. And we traded off different organisations, got in volunteers who, again, not funded, who found a way to stay in Ottawa if they weren’t from Ottawa, to be part of that really daily lobbying effort on the hill.
Sue: Fantastic, okay.
Nancy: Marilou, some of those people who lobbied for you, the civil servants that were so active in helping get women to Ottawa?
Marilou: It was a really interesting thing that happened after the Ad Hoc conference. For the Ad Hoc conference we had opposition members. Members of parliament, senators and some of their staff, who guided us and launched the lobbying process.
But because we were lobbying and we were inside the parliament buildings and the offices, what started to happen was that staffers in different government MPs’ offices started to quietly approach us, hand us telephone numbers and we got some brown envelopes.
And so all of this happened very much under the radar, because for the most part, women who were working as civil servants knew that they would be punished if it was found out that they were helping us.
And so we had one-on-one meetings off the hill for example, in nearby cafés, and many of those staffers would say, no, no, no, don’t emphasise that. These are the points that they’re talking about in caucus, so you need to speak to these points.
So it was invaluable, but we couldn’t give credit to anyone, because they were at risk.
Sue: Okay, so what happened next?
Linda: On the inside, we had all of those great women in government and in the civil service, that Marilou was talking about, and on the outside, we had a mass movement behind us.
I can remember going into the first lobby meeting and feeling, like, even though I was only there with a couple of other Ad Hoccers, I was really there with about thirteen hundred women who showed up on their own dime, you know, for Saturday’s meeting.
And all of the women who had written in, sometimes sent a dollar bill saying, “It’s all I’ve got, but go for it”. And to know that you were supported in that way, you understood this had nothing to do with a few of us, or even just the thirteen hundred at the conference. It had to do with all Canadian women saying that this is our Constitution too, and we need some changes so that it’ll work better for us than the Bill of Rights and the Constitution has worked for us in the past.
Sue: So can one of you tell us about what changes were needed, and how you went about getting them? I mean, it’s probably in the wording of the charter, right.
Sue: Marilou can you tell us what actually was it about the wording of the Charter that made it difficult for women to be recognised as equal, and what did you do about it?
Marilou: Well, as Linda pointed out earlier, the draft of the Charter that was being considered by the Senate House of Commons Joint Constitutional Committee, had exactly the same wording on discrimination as was in the Canadian Bill of Rights.
And every single woman who brought a case under the Canadian Bill of Rights, lost that case – every single one. So there wasn’t a shred of doubt that this was not going to help, and also as Linda mentioned, it’s embedded in the Constitution. And we were seeing American women lose yet another battle to try and get an equal rights amendment.
So we understood that we had to change the wording, and the Ad Hoc resolutions were very clear, that the wording of what became Section 15 in the Charter, which was headlined the same way as the Bill of Rights had been. But one of the big successes that happened before the Ad Hoc conference in February, was as a result largely of what women presented to the Joint Constitutional Committee, including NAC.
And I would say, in particular, the Canadian Advisory Council on the Status of Women – because of the extent of the legal expertise – they were able to make the parliamentarians, and in particular the then Attorney-General, Jean Chretien, understand the risk to generations and generations.
So Chretien – I think it was January 12th – announced that indeed, he had been persuaded by these presentations and he would make changes to Section 15, which was the equality rights section. And that included changing the name to Equality Rights, and that was also a specific recommendation of the CACSW.
And so we went into the Ad Hoc conference about a month after that, knowing that it was possible to get these changes made. And so following the conference, having our list of resolutions, what we were told by the conference – and we’re talking more than thirteen hundred women and men, but mostly women – who were at that conference, that it wasn’t enough. That somehow the equality rights had to be strengthened.
So those of us who were doing the lobbying, took from that that we either had to go back into Section 15 and add even more to it than what Chretien had agreed to in the month previous, or we had to do the equivalent of a made-in-Canada equal rights amendment and get something added into the Charter that was specifically about discrimination based on sex.
And I want to make, maybe a picky legal point, but it’s an important point: discrimination based on sex – not gender – that was not the terminology of the time and that could have made quite a significant difference.
The other thing that ultimately happened in what was negotiated was the drafting and the insertion of a brand new clause – Section 28. And that is a very clear equal rights amendment. But it is an equal rights amendment that addresses male and female persons.
And there are two significant aspects of that change. One, unfortunately that covers corporations that are also seen as legal persons. But better is that male and female persons – we pushed hard for that wording, and that was because we wanted to make sure that children – girls particularly – were covered potentially by the Charter under that section.
Nancy: Lou, could you say something about the American Fourteenth Amendment and the business of the sameness test, and our wanting to have a different test?
Marilou: So when you go to law school, one of the first things that happens is, you are told about Aristotle. And you’re told about the wisdom of Aristotle. But one of the most powerful writings, influential writings of Aristotle, was about sameness.
And the measurement at that time in the United States of what equality meant, was that equality applied to being the same. And that was the reasoning that was so dangerous for women under the Bill of Rights, and why there were so many cases that we lost.
But the one that probably most powerfully demonstrated how risky that is for women, was the case dealing with pregnancy and taking leave – the Stella Bliss case. And in that case, the court at the appeal level, actually based their decision, denying the woman equivalent rights to leave for unemployment coverage, on the basis of her pregnancy, because they held that all pregnant persons were being treated the same and therefore it was equality.
So a lot of what went into changing Section 15, and feeling the need for Section 28, was to move Canada completely away from the way in which the United States had been pursuing bringing equality into law. Because it wasn’t equality in result. It wasn’t actually the living of rights. It was a formalisation that allowed discrimination to continue as had been so demonstrated in the Stella Bliss case.
Linda: And if I could add to that, because those are incredibly important points for women to understand. Organizations – who talk to each other – were determined that we were not going to be in conflict when we presented to the committee – the Joint Committee. So that they got the same message over and over again, which was really obviously important.
And part of that message was that the Section 15 should be about non-discrimination, which is not as powerful as being about equality. But equality is more. And there was also the request to open Section 15 with a very strong statement about gender equality.
However, one of the things that happened that, for me, meant that there needed to be a second, more powerful clause – which ended up being 28 – was that in the charter, the Liberals put an overriding statement about multicultural heritage.
And there’s a lot in multicultural heritage, as well as in our own Canadian heritage, that is not good for women. So we began to understand that we needed a clause about the equality of male and female persons, that would override all of these other overriding things, that were not as clear, and could very well undermine equality rights and more.
Linda: Yeah, this is where you, Nancy, came into – you know, it was so great that you started up that Charter of Rights Coalition and you allowed us to go across the country and educate.
Because the lobbying was critical, and we had to lobby every time the premiers got together. But the education of women across the country, that we had learned from the thirteen hundred women that day in Ottawa, was essential, because they could stand up and chat with their premier and say, no, that’s not going to be good enough. Because they all knew what was good enough and what was not.
Marilou: And if I could just add to that, one of the other organisational elements of that effectiveness, was in fact because Doris had also gone across Canada. And I think it is important to appreciate the capacity that existed across our country for the mobilization that occurred. And one of the reasons for that capacity was the battle that had occurred in the late 1970s around reform to divorce and marriage laws.
And in each province – in most of the provinces and some of the territories – there were advisory councils – provincial advisory councils on the status of women, and then there was the federal. Many of them were shut down in later years, but they were active and they were, I would say, fresh in the imagination of people across the country.
And they played a very important role in the reforms that were needed. And again, they basically stood down the government of the day, from what was proposed to what was finally amended and passed.
And so then you have Doris in 1980, going across the country, building awareness, coordinating and cooperating with these same advisory councils. And so by the time Doris quit, we had Ad Hoc in early 1981, and there were many of the women that managed to pay their way to get to Ottawa for Ad Hoc. They were all connected in some way to these advisory councils.
And so when the mobilisation started to build, there were very good linkages across national civil society organisations, like, NAC, like Women for Political Action. But there were also these quasi-governmental organisations that could actually access a lot of their government leaders, and that was part of their mandate.
So it was this combination, and it was the level of cooperation that really galvanized the movement. And let’s remember, there were no fax machines in those days. The only way of communicating was by telephone, by letter and by telegram.
And so again, this is really quite miraculous that you were able to have this social movement. But there were these mechanisms that had existed that was the level of cooperation that Linda was referring to.
And so when Nance and others added into that – every time where there was that kind of infusion – there would be coalition-building. And sometimes it was regional, like, the West Manitoba group, sometimes it was within a city.
The other crucial element that we haven’t mentioned so far, which made a phenomenal difference, was the media was interested. And women journalists were basically given a licence to write. For the most part, those who covered all of this were women journalists, and some of them were very early on in their careers.
And so we were the news. And that was another way in which we were able to overcome essentially no resources, and reach out to thousands and thousands and thousands of women across the country.
Nancy: After the Queen and Trudeau signed this Constitution and this Charter, and brought it into law, there was a moratorium for three years on the Constitution. And women knew we had this time before the equality section kicked in.
So, what we were doing during that time was taking actions that would reinforce our rights. There were a number of things that were done. It really started with a conference, which Marilou was one of the leaders at, Toronto City Hall, with about twenty four legal scholars, lawyers and activists.
And they sat around brainstorming, as I remember the story, figuring out what had to be done. And from that, flowed the Charter of Rights Coalition, which I was involved with, and several other things as well.
What we did in our little group was to have a coalition of – I think it was eighteen – usually national women’s groups, groups of faith, service clubs, just various – the Ys and so on – across Canada. And each of them had political officers.
And so we prepared a slide tape show – this is how primitive technology was in those days – a slide tape show that went across the country in basements of churches and synagogues, and recreation rooms in schools. There was a speakers team, and they started educating their membership as to what the Charter could mean for them and their children.
And because one of the recommendations was that there’d be statute audits of provincial and federal regulations and laws, the other thing that the CRC (Charter of Rights Coalition) did was to become the lobby group for the information that the lawyers prepared, as to what statutes needed to be changed.
And as Marilou said, they knew they were often involved with their political masters, and they used that power to go and say, this is not good enough, you’ve got to do this and not do that.
We were concerned that they would just do facial changes like changing the word manhole to – I don’t know what it’s called now – those holes in the street….Yeah, there were facial changes of the law or regulations, and we wanted substantial changes, and so that’s what that group did. And I can talk about what the other groups did too, if you like.
Marilou: And I think just to build on what Nancy Ruth just said, in that period of time, the moratorium was placed not on the entire Constitution. The moratorium was placed on equality rights.
And that signalled very strongly to us that this was just the beginning of a battle that had the next phase, I would say. The battle began with the Bill of Rights and all those failures.
And then, once we had a Charter and it was entrenched in the Constitution – and this is another one of these brown envelope situations, where someone inside the government actually came and told us that from a federal-provincial meeting of premiers and the prime minister of the day – that they were very clear they had no intention of auditing the laws in the way that they had used as justification for the moratorium.
So we knew that we were being played. The whole country was being played. And that was part of the rationale for mobilising and, you know, back to the song, “Women are doing it for themselves”. It was this whole sense that, we had to stay ahead of this curve, we had to be the ones who were thinking ahead to the cases that were going to be brought to court. We had to be the ones to develop the expertise, we had to be the ones to publish the first textbooks, we had to be the ones to hold the conferences.
And in that same period of time -1982 – when the moratorium started, and then when it was to end on April 17th 1985 – there was also all the organising and thinking that was going into founding the Women’s Legal Education and Action Fund, to actually be in a position, as we were. On the very first day that it was possible, we brought three cases under Section 15 of the Charter.
Linda: Sue, if I could speak to that from a slightly different angle, being the token non-lawyer, I guess. I want to literally read two sentences, from Penney Kome’s book, The Taking of Twenty Eight. Because they are the two sentences that, for me, they’re what I believe about what happened back then, and what hopefully is going to happen again in the next couple of years.
She writes in her introduction that “women’s involvement in Canadian Constitution-making was a mass involvement. Not the undertaking of a handful of women, as has sometimes been portrayed. And then her last sentence of that same paragraph: at bottom therefore, the greatest achievement of women’s Constitutional struggle may not have been the rewriting of the law, but the process of strengthening mass collective action whereby the anger of women was crystallized into law”.
We were angry beyond – and in number beyond – what we even could envision, and that’s what brought us together. Without that anger turning into action, we’d probably still be trying to make some changes to some of this, you know. But it’s very hard to deal with women when we get together in mass numbers.
Nancy: I’d add to that too, the anger had been there for years. I mean, before all this happened, the Royal Commission on the Status of Women had come out and that was ten years prior. And to this day, fifty years later, not every one of the recommendations of that Royal Commission has been implemented by the government.
We still should be angry, and we still are angry.
Linda: And we still are. Look at the MeToo Movement.
Marilou: And let me bring that right up to today, that what we’re seeing right now is, we’re in the midst of the COVID-19 pandemic. We’ve never faced any kind of economic devastation like we are facing right now. And we have a national recovery plan that’s in process, and nobody has mentioned and brought into that National Recovery Plan, gender-based analysis-plus. Even though that’s recognised now, has been developed and has a lot to do with Nancy’s work in the Senate, in bringing this in as an analytical tool, and it is not being used.
Linda: No and not only have we seen the effect of the economic problems on women, but the rise in violence against women is just hard for the heart to deal with.
A few of us in Toronto, and now that we’ve got the internet, beyond Toronto, are starting to realise that we have similarities today that we had back then. And one of the things that we are starting to talk about with just a few of us across Canada right now, is that if the world gets reimagined as it needs to, if it gets reimagined without gender equality, we’re in more serious trouble than maybe we’ve ever been before.
With gender equality in the new normal, as they’re being called, there’s a chance for climate justice, there’s a chance for racial justice, there’s a chance for gender justice. But without gender equality, I just don’t know what the future can hold for us.
But the bottom-most for us here, is that in 1980, the Constitution of Canada was an umbrella that we could all stand under. It’s my Constitution, it’s yours, whether you belong to a party or not, whether you have an affiliation, whether you’re a woman of faith or not, it was all our Constitution. And right now, this new normal belongs to all of us.
And the last point I would add to that is, the men didn’t know what they were doing when they tried to repatriate or tried to patriate the Constitution. And that gave us pathways that we discovered and took advantage of.
And they don’t know how to do this reimagining either. So if we can become part of that reimaging of the future, that would be the next greatest mass movement of women.
Sue: Okay, so before you jump to today, perhaps you can say what difference you think – you know – the changes to Section 15 and 28 made in the lives of women since 1980 to today, when things may change, but up to today.
Marilou: Sue, can I just ask for some guidance?
Marilou: The guidance that I’m seeking is, how you want us to – if at all – discuss Section 28, the Equal Rights Amendment that was secured at the very last moment before the Constitution was finalised, and which became the focus of the subsequent battle and the whole remobilisation of Ad Hoc that became necessary in November of 1981, when the Section 33 override clause was added in at the federal-provincial meeting in November.
And you know, there are different points of view on 28, but when you invited us to speak with you, you specifically mentioned Penney Kome’s amazing book, and that’s what the book has a lot to do with, the remobilisation all over again of Ad Hoc, months after the February conference.
Sue: Okay, so can you say more about 28, Marilou? This was an Equal Rights Amendment, and yet you’re saying it was controversial. What was the controversy about it?
Marilou: The controversy was about whether or not the Equal Rights Amendment, Section 28, separate from the main Equality Rights Section 15, whether the override, the new Section 33 override that became the way to make the deal, that was – except for Quebec – how the premiers and the prime minister reached an agreement on the new Constitution, by adding in this Section 33 override.
And the prime minister, Prime Minister Trudeau, Pierre Elliot Trudeau, when questioned in the House of Commons by Pauline Jewett, who was one of the hosts for our Ad Hoc conference in February of that year, 1981, asked what exactly Section 33 override would cover.
Because what the override gave governments in Canada – every government in Canada – provincial and federal – was the right to override equality rights. There were certain rights that were protected, which they couldn’t override – language rights being one of them – but they could override any of the listed equality rights.
So right away, discrimination on the basis of sex became something that governments could go, hmm, you know, we don’t have the money, we don’t have the time, we just don’t care. And it gave them that option. And all they had to do was follow the Constitution with this new Section 33 override clause, so they could just pass a law and say, we’re not going to do that. And there were some protections, but that’s more detail than we probably need.
So the battle – what ended up happening in November, the so-called November Accord, became all about Section 28. And it was a little difficult in some ways. We had some very intense discussions, strategic discussions about this, because we always saw 28 as the amendment that worked in tandem with 15.
So when the prime minister said, definitely the override applies to 15, but was equivocal about whether or not it applied to 28 – and Linda will probably remember this, because we were part of the actual negotiating of the wording for Section 28 – we insisted that Section 28 had to start with the word, Notwithstanding anything in this charter.
And by then, when they brought Section 33 in, it started with “Notwithstanding”. So then we had two clauses in the Constitution – the only two that were basically pitched against each other with exactly the same kind of override power in the wording.
And so that battle – and it really was a battle that went from roughly November 5th – when we realised the implication – and it was every day in the House of Commons, in speech after speech, and all kinds of remobilisation. This time we had a woman Minister for the Status of Women, who was really on the side of women, Judy Erola.
But we still had only a volunteer network and had to convince not only the federal government, but enough of the premiers in the provinces, to actually back off and leave Section 28 alone. We succeeded in the end, but it was right up to literally the last minute as to whether or not that 33 override would sit on top of all women’s rights.
Linda: Yeah, and Sue, you were asking what kind of difference the changes in the law and the Charter had meant for women?
I think anybody watching this video, who cares about that, probably has to look at LEAF, because that was the organisation that was created to try and make sure that the courts came down on the side of women when they were dealing with equality issues – equality rights issues.
But you know, off-hand, all I can remember is that some of the women lawyers told me that the first people to try and use 28 and 15, were men, and they’re very good at this.
But I’m presuming, Marilou, that LEAF finally and wonderfully has great victories that would not have come without the changes to 15, and certainly nothing would have come without an overriding clause to keep their hands off her.
Marilou: So I really, really wish that that was true. It’s more nuanced than that. And I told Sue I will share if they want to post. I’ve done a number of articles on this – academic articles tracking it all – so I won’t go into too much detail on that. But really what this boils down to is that 28 – and Linda you were actually prescient at the time – because you actually said at the time that “28 wasn’t a hell of a lot to gain, but it was a hell of a lot to lose”.
Linda: Yeah.
Marilou: And that’s actually the title of one of my academic articles. Because the loss – you understood, in that one sentence. What was really at issue was that without that Equal Rights Amendment, without that overarching Section 28 clause, I don’t think we could – I mean, we have no way of proving what it actually did.
But I speak for myself and the other person that’s done quite a lot of research work on this, Beverly Baines, one of the original lawyers for Doris in 1980, 1981. And of course, she volunteered and was our legal advisor for Ad Hoc as well.
And Beverly Baines, more than any other academic – legal academic – has tracked 28. And what it really seems to have been up until now – and we’re talking thirty five years – is a prophylactic. So you see –
I know. Pun intended, pun intended. Because everybody knows it’s there. Everybody knows that very simple, notwithstanding anything in this charter, all the rights and freedoms herein are guaranteed equally to male and female persons. Basically one sentence.
But it’s very seldom been cited by judges as their reason for a decision, whereas the interpretation of 15 and the use of 15 is all over the place. And there have been major losses for women, even with 15 and 28 in the charter.
But I often ask, if you didn’t have it there, if the judges knew that it wasn’t there, and it wasn’t that clear and simple, would that have just given them all the more latitude to mess around with women’s rights?
And what you said about the use of – yes, of course, I mean, people who have resources are the people who do well under our legal system. And so we’ve got cases where they are primarily about men. Some of them were very helpful to us in terms of developing the equality jurisprudence.
And so 28, you were right about 28. We needed to fight for it, we needed it to be there. It’s almost impossible to measure just what kind of positive impact it’s actually had.
Nancy: I’m going to put my oar in here. and go back to what Linda said about being able to control the agenda.
It was very difficult for us to do that, because in those days, in the late eighties, it cost about half a million dollars to take a case up to the Supreme Court. You had to, you know, make discovery books, you had to – no, do all kinds of stuff.
But one case I remember was the Globe and Mail, the Canadian Newspapers case. The Globe and Mail decided it was going to challenge women. They wanted the right to publish the name of a woman who’d been raped in all their media outlets, and LEAF was quite angry about it and went to court and said, “No”. And that was one case they did win.
But we didn’t control the agenda on it, the newspapers did. And that was part of the problem that LEAF had. Now, LEAF has taken about a hundred and fifty five cases, and some of them in coalition with other groups, particularly the Disabled Women’s Network and aboriginal groups.
And I would say about fifty five of those hundred and fifty five, have been wins of some sort.
Now, this change in the law is, like, inch by inch, or quarter-inch by quarter-inch, you know. You build on it. And so without LEAF, those things would not have happened.
I mean, the increase in maternity leave is a result of LEAF’s work. There’ve been all kinds of things that have been a result of LEAF’s work.
It’s a good thing it’s there. And go up on its website and find out more. And complain about the size of the print on it too. I can’t read it now.
Linda: Yeah, that’s a really important perspective, Nance. And I would say that when you’re looking at the positive results of all this, you can’t just look at the legal changes. Back then, I think a lot of us felt we were looking for equality in the structure that was, and that’s basically looking for equality in a patriarchal world. Now I think we’re beginning to get excited about, perhaps we could get equality in a post-patriarchal, post-pandemic world.
But the fact that as women, we could see that if we stood side-by-side – and I think discovering expertise that we knew how to do, and we knew what we needed, that we had accomplished an incredible amount of change in way more than the law. And a lot of that change was in ourselves and in our organisations.
We actually fired Lloyd Asworthy, and Trudeau accepted that firing and he moved him. Because we said he was not being a minister who was responsible for us.
And we did other things that weren’t actually part of any changes in the law. But women across Canada were politicised in a way, and like Helen Reddy sang, “I know too much to go back.” And there are a lot of women still alive and kicking, who know that we can do what we need to do if we do it together. And that’s the hope.
For me, it’s not just the hope for women, it goes beyond women. I think if women don’t save the world, then I don’t know if it can be saved – I don’t think it can be saved without us. So I’m hoping we stand up again.
And you see, the Me Too movement, the Time’s Up movement? Women, once again, when they learn that things haven’t changed – I mean, we got letters that said, I can’t believe in 1981, that this was the case for women, and now it’s, I can’t believe in the year 2020 that this is where we are, that the violence is worse, that the economic ruin is worse and that, no matter what happens that’s bad,, it’s worse for women.
So that politicising is very, very critical.
Marilou: I’d like to add to that by just referencing the generations that I call the Charter Babies. There’s a definite difference between those of us who are all pre-charter, we were adults at the time, that we managed to make changes to the Charter and to the Constitution.
But now I spend a lot of my time with young people, and I have a very large and diverse youth advisory council for my senate office. And they breathe the air of the Charter.
And that’s not to say that they’re experts on it, but it is to say that the way they view the world as global citizens, the way they expect opportunities to be equally available, the way in which, for younger generations, across the gender continuum, that they’re very comfortable with gender fluidity, gender diversity.
And their view of what they are entitled to, you know, the living of their rights, is so much more developed, of course, because they’re Charter Babies. Everything that they’ve lived through up until this point in their lives, whether they’re eight years old or whether they’re twenty two years old or twenty five years old – actually thirty five years old, because I have a Charter baby. (I gave birth to one of my kids right exactly when the Constitution was activated and the Charter became something we could use to litigate for equality.
And so for thirty – those thirty five and under, they’re all Charter babies. And it has shifted. What we also see in polling in Canada, is that when Canadians are asked about values: what does it mean to be Canadian, equality is always ranked either one, or in the top three of the values that Canadians hold.
Sue: Thank you. So we have mixed reviews, I would say, about the conclusions that we can draw from the Constitutional changes. In some ways they have been generationally moving and interesting; in other ways we’re still fighting for the same rights for economic equality. Is that the interesting story for the young generation today.
Sue: I think you probably have told it, but I’m just trying to see if anybody wants to sort of summarise what the story of this is in the history of the women’s movement, and for the benefit of people in the future?
Marilou: I’ll jump in. I think that there is a generational difference. I think that the lens, the filter that we brought to the Constitution and the Charter in the 1980s, right, all the way through, I would say arguably, even today, is a filter of sex equality.
So essentially women and girls not experiencing discrimination, negative discrimination that limits their choices and doesn’t allow them to actualise their full potential. And we use an equality lens for that, and it’s a sex equality lens.
In my experience with younger generations, the Charter Babies, thirty five and under, they use a very different lens. They still also have a lived experience that’s part of their measurement. What is happening, what are my opportunities?
I think that we look now at Black Lives Matter and the expansion of that movement to indigenous peoples and people of colour and examining systemic racism, which is very actively going on right now in a way that we haven’t seen before in Canada, at the level of both street activism, but also thoughtful commentary and to some extent, research.
But the lens that they’re using, is a lived equality lens, and it applies to everything. And it’s very seldom a sex equality lens now.
Sue: Okay, does anyone want to –
Nancy: I want to say that Rosemary Brown, who was a Jamaican legislative member in British Columbia, used to say that until race and gender had made it together, there would be no equality.
And I sit here in Black Lives Matter right now, and I have two black godsons, and I listen to the press night after night after night, and there’s nothing about gender in it. What happened?
And I’m going back to Linda’s point that in this rebuilding of the new economy, and Marilou’s about where is the GBA+, why is it that women are somehow almost forgotten?
That is my perception of what is going on in COVID-19 time.
Linda: Yeah, yeah, absolutely true, Nancy. Not only are we finding ourselves more invisible than we could hope for in 2020, but we’re suffering more than anyone, more than the other gender, from as I say, the violence and the economic issues for women now, are just – they’re just beyond the pale.
And I think that what we have to do is find the way to make sure that with the recovery, gender equality has some equality in that reimagining and that recovery.
It’s very difficult. I listened to a woman the other day – an American woman – a black American woman – working on the issue of violence against women. And she said, you know, we have to find a way to make sure that things don’t just change for black, indigenous and people of colour. They have to change for women, and it’s not going to be easy, because Me Too and Time’s Up have disappeared off the table, and Black Lives Matter – and of course the COVID – is front and centre.
So we have some work to do, and I think all of us, at every age, I think we need some mixed age, mixed race groups of women. You know, the younger women that I work with occasionally, sometimes I think they’re just fascinated with the little bit of, you know, the elder position. They’re also fascinated that I didn’t have a smartphone, let alone fax.
But I think that we have something to bring to them. Sometimes it’s just the courage and the bravery and the experience that we can make a difference, that we can change things. And once they see the reasons for changing, just like when we realised that the Charter needed to be changed dramatically, now we know that the world needs to change dramatically. And so you know, my hope is that that’s what’s going to happen, we’re going to find the ways, and to make sure, you know –
Just to give a very quick example, I don’t know if there’s a recovery plan for Toronto, or whatever. But anyway, whatever they’re doing in the mayor’s office, is being done by three men. Two men have been hired and they’re working for the mayor to figure out the future. And they don’t even understand that they can’t do it without us. So we have to meet with them and explain to them the very basics, and then demand.
So first of all – and we just have to be angry enough. That anger has to turn into action, and then that action has to turn into change.