Women and the Law
Women have looked to the law as a tool to change their circumstances, while at the same time the law is one of the instruments which confirms their dependent status as citizens (see Status of Women). The first phase of the Women's Movement, in proclaiming that women were capable of reason as well as reproduction and nurturing, claimed a place for women in the public sphere, while also relying upon the concept of "separate spheres" to delineate their areas of strength and competence.
Historical Changes in Women and the Law
Laws 200 years ago excluded women generally from public life. They did not enjoy the right to advanced education, to hold public office, to vote or to sit on a jury, to name but a few. In areas of private law, married women could not own property and mothers could not claim custody of their children, among many things. Major accomplishments of the first phase of the Women's Movement were the entrance of women into higher education, the gaining of the vote for many, the inclusion of women in the definition of persons for the purposes of the Senate Act and abolition. Although the latter proved unpopular and unworkable, during the course of the Temperance Movement women identified family violence as directly related to alcohol consumption, bringing the issue of family violence into public awareness.
Women and the Vote
By the end of the 19th century, many women and some men were questioning the severe restrictions of rights for female citizens. A loophole in the law allowing some women, particularly in Lower Canada, to exercise the franchise had been specifically removed by the 1850s throughout Canada. Feminists argued for fuller participation of women in public life, on the grounds both of moral justice and because "feminine virtues" might well bring about needed reforms. After a lengthy campaign, women in Manitoba, Alberta and Saskatchewan gained the right to vote in 1916, and in Ontario and BC, the following year. On the federal level, the vote was first given to relatives of enlisted men in 1917 and then broadened to all women in 1918. The other provinces followed suit by 1922, with the exception of Québec, where women were denied the vote until 1940. First Nations women did not earn the right to vote until the 1960s.
Women in the Legal Profession
Under the French regime, important posts in the army and the government were, by custom, granted only to men. Under the British regime, women were usually excluded by law from holding public office until the beginning of the 20th century. After their earlier successes, women began to seek public office, and through the first half of the 20th century, a few women succeeded in being elected to the federal Parliament and the provincial legislatures. They were generally marginalized, even when in positions of power. For instance, Irene Parlby, the first woman elected to the Alberta legislature, was minister without portfolio, when her qualifications suited her well to other ministries. Although in 1929 women gained recognition as persons for the purposes of appointment to the Senate, in the intervening years relatively few women have been appointed to that body. Through 1995, 342 appointees were men, while 38 were women, or 10% of the total. Twenty-three percent of the 1996 Senate are women (see Women's Suffrage).
Clara Martin led the way for women of the British Commonwealth to enter the legal profession. In 1897, after a lengthy and difficult struggle, she was admitted to practise law by the Law Society of Upper Canada. As with most female pioneers in the profession, she chose to remain unmarried in order to continue her career. Women have been slow to enter the legal profession. By the 1990s half the graduates from law schools are female, but they comprise only 20% of the practising bar. They are noted for leaving the profession in higher proportion than men and working more for corporations and governments. In large firms they comprise a small proportion of the partners. Women form about 19% of the law teaching faculty in the 19 Canadian law schools.
In 1916 Emily Murphy was appointed a magistrate by the Alberta government, the first woman to be appointed to the Bench in the British Commonwealth. Since then there have been appointments at all court levels. In 1982 Bertha Wilson was appointed as the first woman to the Supreme Court of Canada, followed by Claire L'Heureux-Dube in 1987. In 1990 Catherine Fraser was appointed chief justice for the Province of Alberta, and now half the Court of Appeal in that province is comprised of women. Women achieving positions of power within policy-making bodies such as the civil service have been less successful.
Equality and the Law
Throughout the brief 200-year history of the Women's Movement, women have sought equality with men. Until relatively recently equality has meant being treated the same as men, being accorded the same rights as men. All the achievements of the first phase of feminism were directed toward this goal. The Report of the Royal Commission on the Status of Women in Canada in 1970 re-affirmed that desire, and changes to the law until the mid-1980s followed this "sameness" philosophy.
Women and Property
Accordingly, the Matrimonial Property Acts passed in most provinces near the end of the 1970s provided for equal division of property on dissolution of marriage. Passage of these acts followed the uproar caused by the Murdoch Case, whereby Mrs Murdoch was awarded very little following 25 years of marriage as an Alberta farm wife. This case exemplifies the impression that in the area of family law women have been treated most clearly as dependants.
In New France, where 25 was the legal age of majority, a woman usually passed from the control of her father to that of her husband when she married. A husband's permission was necessary for a wife to engage in business or even to administer or sell property which she had owned before marriage. French law, however, provided that half of the common property belonged to the wife and her heirs on marriage dissolution, whereas British law gave a husband wide authority over his wife's property and made no provision for division of assets. Although Married Women's Property Acts were passed in the late 19th century in most common-law provinces giving women the right to control their own property, the laws made no provision for the equitable division of property held by the spouses in case of marriage breakdown or death. Nor did they improve the economic situation of women and children (see Women in the Labour Force).
It has taken 15 years for it to become apparent that the impact of these matrimonial property acts has been, in many cases, to deprive women of income and security. Statistics indicate that women do not fare as well economically as men upon dissolution of marriage (see Marriage and Divorce). There are many and complex reasons for this, but it is now being seen that the uneven economic circumstances of men and women, the undervaluing of housework and child care, the disruption of women's careers for childbirth and child rearing, the fact that women are often the custodial parent and other factors should be considered in the division of property.
Women in the Labour Force
By the 1970s approximately one-half of Canadian women were in the paid labour force, though, overall, women in 1996 earned 66% of what men earned. In a drive for fairer labour legislation, especially legislation recognizing equal pay for work of equal value, women's groups and unions proposed affirmative action programs to counteract employment policies that were intentionally or inadvertently discriminatory to women. Parental and pregnancy benefits became an important issue as, increasingly, women remained in the paid work force during childbearing years.
After 1971 Canada's unemployment insurance scheme provided for limited pregnancy benefits for workers. The Bliss case (1979) showed how problematic are equality claims based on women's sameness to men. In Bliss, the Supreme Court of Canada ruled that if a worker, otherwise entitled, were denied benefits because of pregnancy, it was not because she was a woman. In 1983 amendments were made to the Unemployment Insurance Act changing pregnancy to parental benefits in order to eliminate this problem. In the 1990s the Supreme Court of Canada again faced with a claim of a woman while on pregnancy leave found that equality claims did not have to be measured against whether a man could become pregnant or not.
Women's Legal Rights
In the 1970s women became more conscious of their legal rights, or lack of them, than ever before. As courts and lawyers are prohibitively expensive for most women, the federal and provincial human rights commissions proved to be an alternate and less expensive way of dealing with individual complaints of discrimination. The Bliss case as well as the earlier Lavell and Bedard cases, dealing with discrimination against female status Indians on the basis of their sex, pointed out to Canadian women how inadequate were the existing constitutional guarantees against sexual discrimination. Cases such as these, as well as a growing consciousness of the need for stronger legal measures against discrimination, fuelled the successful drive by women for better guarantees in the new Canadian Charter of Rights and Freedoms (1982).
Section 15 of the charter attempted to provide the broadest possible definition of equality rights. The Charter, women hoped, would provide a new standard of equality against which laws in Canada could be measured. In 1983, the Constitution Act guaranteed Indigenous rights to male and female persons. Section 12 of the Indian Act (female loss of status upon marrying a non-Indian) was repealed in 1985 (see also Abortion; Meech Lake Accord; Meech Lake Accord: Document; Indigenous People: Law; Pornography).
The Women's Legal Education and Action Fund (LEAF) was formed to argue s15 Charter cases and to bring before the courts the concept that equality must be considered within the context of the lived experience of the claimants and not measured against some apparently neutral but usually male standard. LEAF has intervened in many major and controversial cases, and has influenced the way equality is viewed under the law. As intervenors at the Supreme Court of Canada, LEAF has argued that pornographic representations of sex combined with violence are discriminatory to women and that women who murder their husbands who battered them may have a defence of battered women's syndrome.
Women and Violence
Rape and Sexual Assault
In the 1970s and 1980s the issue of violence claimed public attention, particularly among women. The double sexual standard was mirrored dramatically in the Criminal Code laws on rape, which permitted questions as to the victim's, but not the accused's, previous sexual history and encouraged defence counsel to argue that women had consented to sexual intercourse. In 1982 major changes to the Criminal Code addressed the situation where the victim of a sexual assault was, in effect, put on trial along with the accused. The legal concept of rape was replaced by one of sexual assault and violence.
In the 1990s changes to the Criminal Code clarified the consent issues. Domestic violence, which is almost always against women and children (see Child Abuse), has long been considered a private matter in Canada. Although wife beating is a form of assault and punishable under the Criminal Code, social attitudes and prejudices have meant that police were reluctant to intervene in domestic disputes. The courts hesitated to find a husband guilty of beating his wife without a third-party witness. In the late 1970s Women's Organizations drew public attention to wife and child battering and to the fact that laws on the books were not being applied. Across Canada, law enforcement agencies began to intervene in cases of domestic assault. It soon became evident, however, that simply punishing the offenders was not in itself a long-term solution. In many cases, the woman was dependent on the man and feared for the welfare of the family if he was sent to prison. Women's shelters, therapy and public campaigns against family violence were some of the alternate approaches developed. In the mid-1990s, books have appeared profiling the batterer, shifting the focus from the victim. In 1996, the Alberta Legislature passed an act concerning domestic violence.
Sexual harassment on the job was first considered by federal and provincial human rights commissions in the 1970s and, by the early 1980s, unions began to insist that employers enforce policies against it. In 1984 legislation providing redress for victims of sexual harassment was introduced into Canada's Labour Code.
Many believe that more women in the practice of law, the judiciary and government will alter women's status before the law. Although many changes have been made, there are still areas of law which treat women differentially, to their disadvantage.
Kim Brooks & Carissima Mathen, Women, Law, and Equality: A Discussion Guide (2010); Fay Farady, Margaret Denike, & M. Kate Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality under the Charter (2009).