Amici Curiae: This One’s For The Girls: The Persons Case Turns 81

Monday, October 18, 2010 represents the eighty-first year anniversary of one of the most famous cases in Canadian constitutional jurisprudence: Edwards v. Canada (Attorney General), [1930] A.C. 124, otherwise known as the Persons case. The case is significant for two main reasons. First, by accepting that women fit the definition of “qualified persons,” and could therefore be admitted to the Senate pursuant to s.24 of the British North America Act, 1867, the Judicial Committee of the Privy Council (Canada’s then highest Court) substantially advanced gender equality in Canada. Second, by adopting the now-famous “living tree” interpretive principle, Lord Sankey provided the mechanism by which our constitutional framework has developed and maintained an organic character.  This characteristic is crucial for the Constitution to remain compatible with Canadian society amidst natural changes and evolution.

In light of this significant anniversary, TheCourt.ca is pleased to bring you, in no particular order, the ten most significant women’s rights cases since the Persons case.

R. v. Ewanchuk, [1999] 1 S.C.R. 330

In Ewanchuk, the accused made repeated sexual passes at a seventeen-year-old girl. Though she initially rejected each of the accused’s attempts, fearing for her safety, she eventually acquiesced. In finding that the accused had obtained “implied consent,” McClung J.A. of the Alberta Court of Appeal remarked, “it must be pointed out that the complainant did not present herself … in a bonnet and crinolines” and that the accused’s conduct was better characterized as “hormonal” than “criminal.” The SCC overturned the Court of Appeal’s decision, rejecting the defence of implied consent. In a blistering condemnation of the Court of Appeal’s judgment, L’Heureux-Dube J. commented that, “The majority of the Court of Appeal … relied on inappropriate myths and stereotypes. Complainants should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.”

Thibaudeau v. Canada, [1995] 2 S.C.R. 627

Suzanne Thibaudeau, a divorced mother of two, challenged regulations in the Income Tax Act which required her to pay income tax on child support payments, although her ex-husband was allowed to deduct the payments from his taxable income. The practical result of the provision was to significantly disadvantage women since 98% of the people who paid tax on child support payments were female. Interestingly, though Thibaudeau lost at the SCC, the subsequent public outcry persuaded the government to pass new and fairer tax laws.

Murdoch v. Murdoch, [1975] 1 S.C.R. 423

The SCC held that a recently divorced and abused farm wife did not have an implied trust resulting from years of labour on the farm which would entitle her to half the interest of the ranch.  This resulted in significant public outcry. As the sole dissenter, Justice Laskin argued that, rather than assess whether an implied trust existed as a result of the wife’s labour, the Court should have found the existence a constructive trust based on equity. Laskin later attributed his eventual promotion to Chief Justice to his dissent in the case.

DBS v. SRG, [2006] 2 S.C.R. 231

DBS concerned the issue of child support and the entitlement of recipient spouses, predominantly mothers, to increased child support following an increase in the income of payer spouses, who are predominantly fathers. The SCC ruled unanimously that ex-spouses could face significant retroactive child support payments if they failed to declare their increased earnings.

R. v. Morgentaler, [1988] 1 S.C.R. 30

Possibly the most well-known decision regarding women’s rights in the Charter era, this Morgentaler decision may also be one of the least understood. While, in actuality, only Justice Wilson went so far as to declare a constitutional right to abortion or “freedom of choice” (the four other justices in the majority overturned Quebec’s prohibition using essentially procedural considerations), given the unwillingness or inability of successive federal and provincial governments to pass laws to the contrary, the decision has had the practical effect of giving women in Canada control over their own bodies.

Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252

After Diana Janzen and Tracey Govereau were sexually harassed at work, they took their case all the way to the SCC, where the Court ruled that sexual harassment is a form of sex discrimination.

Brooks v. Canada Safeway Ltd., [1989], 1 S.C.R. 1219

When three female Safeway cashiers became pregnant, they were denied benefits for loss of pay because the Safeway insurance plan did not give full benefits for 17 weeks for those who were unable to work due to pregnancy. They subsequently brought claims against against Safeway for discriminating on the basis of pregnancy and on gender. The Court held unanimously that the insurance policy was discriminating against pregnant women, in violation of the provincial Human Rights Act.

R. v. Darrach, [2000] 2 S.C.R. 443

Andrew Darrach was charged with sexual assault in 1994. At trial, he challenged provisions in the Criminal Code limiting the use of a woman’s sexual past history as evidence. The SCC ruled that using a woman’s sexual past as evidence in a sexual assault was an attack on her dignity and a violation of her right to equality. The decision represented a definitive rejection of the proposition that a complainant’s past sexual history could be used to dismiss her complaint or imply consent.

R. v. Lavallee, [1990] 1 S.C.R. 852

Angelique Lavallee got into a serious altercation with her abusive common law husband, during which he slapped her, pushed her, hit her in the head, and threatened, “either you kill me or I’ll get you.” At some point during the exchange Lavallee discovered a gun; as he turned around to leave the room she shot him in the back of the head. Following testimony from a psychiatrist, the SCC upheld the battered woman syndrome as a defence to the charge of murder.

Moge v. Moge, [1992] 3 S.C.R. 813

In this case, the SCC determined that the termination of spousal support, pursuant to s. 17 of the Divorce Act, R.S.C., 1985, c.3, should consider the merits of the recipient’s economic status as a result of the marriage breakdown rather than a simple “sink or swim” policy regarding self-sufficiency.  This decision has provided considerable protection for recently divorced women from becoming impoverished.

Honourable Mention: The Queen v. Seaboyer and Gayme, [1991] 2 S.C.R. 577.