Rewriting equality at the Women's Court of Canada

Excerpts from the Lawyers' Weekly article:

What would equality look like if women's perspectives were taken seriously? What if realities of poverty, disability, racialization, exclusion and power were placed at the centre of equality law, not the margins? If we took substantive equality seriously, how would our law--and our world--be different?

These are questions the Women's Court of Canada (WCC) is challenging Canada's legal community to engage in -- and they are doing it by literally rewriting Canada's equality jurisprudence.

The WCC is a loose collection of academics, litigators and human rights activists from across the country who share a concern that Canada's jurisprudence has failed to deliver on the Charter's promise of equality because it has lost sight of the goal of substantive equality. Instead, it keeps retreating into narrow formalism and fails to recognize real-world dynamics and harms caused by systemic discrimination.

Emerging from a 2004 colloquium on Charter rights, the participants decided to constitute themselves as a virtual review court that reconsiders leading Supreme Court of Canada (SCC) rulings on equality. They aim to show that our jurisprudence can support a more truly substantive and transformative vision of equality.

By rewriting leading SCC decisions, the WCC has created an alternate vision -- and a parallel body of "case law" -- which presents a creative and rigorous critique of Canada's equality jurisprudence. While they take a novel form, the WCC judgments are serious exercises in legal scholarship. Their concern is not solely with the outcome in SCC rulings, but more deeply with the legal analysis that produced those outcomes.

The WCC's first six judgments were published in the Canadian Journal of Women and the Law and are available on the WCC website at www.womenscourt.ca. These first judgments took on the analyses in the following decisions:

- Symes v. Canada (tax treatment of child care expenses)
[Original Symes v. Canada decision]

- Native Women's Association of Canada v. Canada (Aboriginal women's right to participate in constitutional consultations)

- Eaton v. Brant County Board of Education (integration of disabled students)

- Law v. Canada (Minister of Employment and Immigration) (access to survivor's pension)

- Gosselin v. Quebec (Attorney General) (access to income assistance)

- Newfoundland (Treasury Board) v. N.A.P.E. (pay equity)