The gateway to a fresh millennium seems a fair vantage point from which to survey the path recently taken in womenʹs struggle for legal equality in Canada.¹ Among many of those hitherto excluded from the full perquisites of citizenship, the hope for social justice was somewhat refreshed by the entrenchment of equality and other rights in the Canadian constitution in 1982.² Yet disenchantment was soon to follow, induced by years of constitutional litigation that, with some notable exceptions, has seemingly packed the winnersʹ circle with those already privileged by their structural positions, their socioeconomic, racial, gender, heterosexual, and able-bodied statuses....

Long before any women in Anglo-American legal systems acquired legal personhood, were permitted to enrol in law schools or, having graduated, permitted to practise law, were allowed to serve on juries or hold public office, or acquired the right to vote, the written and unwritten constitutional norms that distinguish Anglo-American legal systems had been elaborated and endlessly debated by privileged, white, male constitution drafters and theorists.² Central among the matters elite men debated was the appropriate division of constitutional powers between the (white, male, rights-holding, and propertied) voters and legislators entrusted with enacting laws in the public interest and the...

Equality is an amorphous concept – slippery, uncertain, flexible, dynamic, by definition comparative, by implication restrained. These attributes are at the same time the potential and the limitations of equality, and the reason equality is controversial, both as a goal and as strategy for women.

Equality has been, and continues to be, a cornerstone and watchword of feminist struggles, particularly in the context of the law. But, all the while, there has been ongoing disagreement among feminists about the appropriateness and effectiveness of the focus on equality. Even among feminists who have adopted equality, as either a means or an...

The new millennium is a time for reflection and for looking forward. As we enter the twenty-first century, many of us have begun to look back on some of the earlier arguments that we made about Canadian feminism and theCanadian Charter of Rights and Freedoms. With the benefit of more than fifteen years of feminist constitutional litigation to reflect on, we are in a position to craft more complex and nuanced analyses of the potential opportunities and constraints of legal strategy as feminist practice. There is no doubt that Canadian feminists must continue to engage in constitutional legal struggles....

Many years ago, I heard an account of a creative approach to problem-solving that concerned complaints about the slowness of the elevators in a very tall office building that accommodated thousands of employees of various businesses. The architects and engineers consulted about the problem proposed solutions (such as installing extra elevators on the outside of the building) that would have cost millions of dollars. Eventually, the owners called in the well-known psychologist and virtuoso problem-solver, Edward de Bono, who had made ʹlateral thinkingʹ famous and rather trendy in the 1970s.² De Bono solved the problem for a few thousand dollars...

The first case concerning live-in caregivers and equality rights under theCanadian Charter of Rights and Freedoms² ever to reach the Supreme Court of Canada was decided in 1993 inSymes v. Canada.³ Beth Symes, a self-employed lawyer, litigated for the right to deduct the full salary of her live-in nanny as a business expense, rather than the much smaller annual child care deduction allowed under the federalIncome Tax Act.⁴ While the Federal Court of Canada had ruled in Symesʹs favour in 1989,⁵ two years later, the Federal Court of Appeal reversed that ruling.⁶ In 1993, Symes lost the...

Racialized women are a heterogeneous group. Their unity is found in their shared experience of vulnerability to the racist attitudes and practices of whites – both women and men. Racialized women live diverse lives, as do white women, where class, culture, citizenship, religion, sexual identity, and different abilities should preclude presumptions of a racialized monolith. The law has played a pivotal role in determining the nature and scope of the rights of women who are not white: the law has racialized women of colour. During the colonial period they were regarded by whites as mere property, indigenous (sub)peoples to be...

Over the years women have engaged with law across a wide range of issues in various contexts and – with mixed results. While the main purpose of this book is to provide an overview of salient areas, issues, and opinions, the focus of my chapter is litigation on abortion. Litigation is only one of the many legal strategies available and actually employed in relation to abortion. Nevertheless, the decided cases merit special attention.¹ Litigated cases have figured prominently in determining access to abortion and defining public debate on this subject in both Canada and the United States.² They are dramatic...

Legal strategies, as efforts to address injustices in individual cases, are also political strategies. Conceived of as political strategies, legal tactics potentially serve three purposes: to frame issues so as to establish particular sets of meanings or discourses; to mobilize support in the form of allies, public opinion, and financial resources; and to have an impact on legal, policy, and procedural outcomes. For a social movement, litigation can be used directly or indirectly as a vehicle for enhancing its political objectives. First, a social movement organization may use the law and legal methods proactively by taking a case to the...