Notes
- Ker Conway , J. 1993 . ‘Blinky Bill and the Forgotten Females’ . The Independent Monthly , December : 80 January 1994
- Curthoys , Ann . 1993 . ‘Single, White, Male’ . Arena Magazine , December : 28 January, 1994
- Irving , Helen . 1993 . ‘Republicanism and the Feminist Voice’ . Arena Magazine , December : 26 January 1994
- Galligan , Brian . 1991 . ‘A Bill of Rights for Australia?’ . Intergovernmental Perspective , Fall : 54 The situation is not identical as Canada had experimented with a statutory bill of rights in 1960 and a good deal of Canadian feminist reaction was to the inadequacies of this bill. Still, the issues debated remain crucial to the shape of any new Bill of Rights
- Galligan . “ ‘A Bill of Rights’ ” . 54
- Vickers , J. , Rankin , P. and Appelle , C. 1993 . Politics as if Women Mattered: A Political Analysis of the National Action Committee on the Status of Women , 105 Toronto : University of Toronto Press . It is necessary to distinguish consistently between English‐Canadian and Quebec women, especially on constitutional issues. Quebec women with nationalist aspirations for Quebec believe, not surprisingly, that their interests are better protected by the goverment in power in their province
- Bacchi , C. 1991 . “ ‘Pregnancy, the Law and the Meaning of Equality’ ” . In Equality Politics and Gender , Edited by: Meehan , E. and Sevenhuijsen , S. 71 – 87 . London : Sage . On the situation in America and the difficulties this subject has raised for the feminist community there, see
- Prentice , A. 1988 . Canadian women: A History , 381 Toronto : Harcourt Brace Jovanovich . The Bliss case led to amendment of the Human Rights code so that discrimination because of pregnancy was no longer allowed
- Brodsky , G. and Day , S. 1989 . Canadian Charter Equality Rights, for Women: One Step Forward or Two Steps Back? , 1 – 4 . Ottawa : Canadian Advisory Council on the Status of Women .
- Vickers . Politics as ij Women Mattered 107
- Vickers , eds. “ ‘If NAC had not existed, Ad Hoc could not have functioned’ ” . In Politics as if Women Mattered 104 According to one of the committee members
- Brodsky and Day . Canadian Charter Equality Rights , iv
- Kome , P. 1983 . The Taking of Twenty‐Eight: Women Challenge the Constitution , Toronto : The Women's Press .
- Kome , P. 1983 . Play from Strength: A Canadian Woman's Guide to Initiating Political Action , Ottawa : The Canadian Advisory Council on the Status of Women .
- Brodsky and Day . Canadian Charter Equality Rights 17
- Razack , S. 1991 . Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality , 35 Toronto : Second Story Press .
- Atcheson , M. E. , Eberts , M. , Symes , B. and Stoddart , J. 1983 . Women and Legal Action: Precedents, Resources and Strategies for the Future , 2 Ottawa : Canadian Advisory Council on the Status of Women . The notion of a ‘legal defence fund’, taken from the experience of American Blacks, describes a type of public interest organisation. The purpose is to provide funds to assist someone bringing or defending actions ‘which will contribute to the development or elucidation of law in a particular area’
- Atcheson . Women and Legal Action , 166 – 7 .
- Fudge , J. 1989 . ‘The Effect of Entrenching a Bill of Rights upon Political Discourse: Feminist Demands and Sexual Violence in Canada’ . International Journal of the Sociology of Law , 17 : 445 – 63 .
- Summers , Anne . 1993 . “ ‘A Letter to the Next Generation’ ” . In Damned Whores and God's Police , 524 Ringwood : Penguin .
- Leon , Renee . 1993 . ‘W(h)ither Special Measures? How Affirmative Action for Women Can Survive Sex Discrimination Legislation’ . The Australian Feminist Law Journal , 1 August : 92 – 3 . Section 33 of the Australian Sex Discrimination Act (1984) stipulates that ‘Nothing in Division 1 or 2 [the antidiscrimination clauses] renders it unlawful to do an act a purpose of which is to ensure that persons of a particular sex … have equal opportunities with other persons in circumstances in relation to which provision is made by this Act’. Article 4(1) of the International Convention on the Elimination of All Forms of Discrimination Against Women (1983) reads: ‘Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards: these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved’ (emphasis added)
- Baines , B. 1981 . “ ‘Women, Human Rights and the Constitution’ ” . In Women and the Constitution in Canada , Edited by: Doerr , A. and Carrier , M. 54 – 5 . Ottawa : Canadian Government Publishing Center .
- Razack . Canadian Feminism and the Law 30 The Baines piece had been commissioned by the Canadian Advisory Council on the Status of Women and later became the brief the Council presented to the Special Joint Senate Subcommittee set up to receive responses to the proposed Charter
- 1991 . The Sound of One Hand Clapping’ . Melbourne University Law Review , 18 : 466 – 7 . While it is true that a legislature can proceed to re‐enact a piece of legislation deemed unacceptable under this section, few govenments would be inclined to challenge section 1, according to Elizabeth Sheehy. She quotes Judy Fudge to the effect that no one seriously expects the override power to be used by Parliament, ‘for what better excuse for failure to take political action than a Supreme Court pronouncement on fundamental freedoms?’. E. Sheehy ‘Feminist Argumentation Before the Supreme Court of Canada in R. v. Seaboyer; R. v. Gayme;
- Brodsky and Day . Canadian Charter Equality Rights 17 Section 29 of the Charter protects certain aspects of religious freedom by declaring that ‘nothing in this Charter’ abrogates rights to denominational schools. Section 25 declares that the guarantee of ‘certain rights and freedoms’ in the Charter ‘shall not be construed to abrogate or derogate’ from the rights of aboriginal peoples
- Bankier , Jennifer . ‘Equality, Affirmative Action, and the Charter: Reconciling “Inconsistent” Sections’ . CJWL/Rifd , 1 134 – 52 . Jennifer Bankier feels that section 28 would carry greater weight in such conflicts, but other authors are less optimistic
- Sheehy . “ ‘Feminist Argumentation’ ” . 460 According to Elizabeth Sheehy, despite section 28, there is nothing in the Charter to determine contests between competing rights
- Brodsky and Day . Canadian Charter Equality Rights , 103 117
- Brodsky and Day . Canadian Charier Equality Rights 106 It seems corporations will no longer be allowed to initiate section 15 claims but can still invoke them as a defence. Importantly, the argument that section 15 entrenches a right to unregulated free enterprise was rejected.
- Brodsky and Day . Canadian Charter Equality Rights 117
- Brodsky and Day . Canadian Charter Equality Rights 118
- Sheehy . “ ‘Feminist Argumentation’ ” . 450 Sherene Razack agrees that the Charter has been a vehicle for the advantaged with women having only minimal access to its protection
- Razak . Canadian Feminism and the Law 133
- Brodsky and Day . Canadian Charter Equality Rights 117
- Thornton , M. 1994 . “ ‘The Seductive Allure of EEO’ ” . In Feminist Issues in the 90s , Edited by: Grieve , N. and Burns , A. Oxford University Press . On the limitations of complaint‐based mechanisms see
- Sheehy . “ ‘Feminist Argumentation’ ” . 452 ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’
- Brodsky and Day . Canadian Charter Equality Rights 193
- Leon . “ ‘W(h)ither Special Measures?’ ” . 98ff. Australian women recently had experience with exactly this sort of claim in Proudfoot & Ors v. ACT, ACT Board of Health, Commonwealth of Australia & Canberra Women's Health Centre Inc. 1992). Justice Sir Ronald Wilson of the Australian High Court found that the women's health program did discriminate against men but that it was preserved by the exemptions in sections 32 and 33 of the Sex Discrimination Act, the latter of which permitted ‘special measures’ to promote equal opportunity
- Lacey , N. ‘Legislation against Sex Discrimination: Questions from a Feminist Perspective’ . Journal of Law and Society , 14 ( 4 ) 415 For the way in which gender‐neutral wording (or the symmetrical principle in antidiscrimination law delegitimizes affirmative action
- Brodsky and Day . Canadian Charter Equality Rights 193
- Brodsky and Day . Canadian Charter Equality Rights 37
- Westen , P. 1982 . ‘The Empty Idea of Equality’ . Harvard Law Review , 95 : 537 543
- Bacchi , C. 1992 . ‘Do Women Need Equal Treatment or Different Treatment?’ . Australian Journal of Law and Society , 8 : 80 – 94 . Elsewhere Bacchi has written on the problems with this understanding of discrimination. See
- Bacchi , C. 1990 . Same Difference: Feminism and Sexual Difference , Sydney : Allen & Un win . Chapter 7
- Mahoney , K. 1993 . ‘International Strategies to Implement Equality Rights for Women: Overcoming Gender Bias in the Courts’ . The Australian Feminist Law Journal , 1 : 123 – 4 .
- More , G. 1993 . ‘"Equal Treatment” of the Sexes in European Community Law: What Does “Equal” Mean?’ . Feminist Legal Studies , 1 ( 1 ) : 67
- Brodsky and Day . Canadian Charter Equality Rights 209
- Gregory , J. 1987 . Sex, Race and the Law: Legislating for Equality , 161 London : Sage .
- Martin , S. L. and Mahoney , K. E. , eds. 1987 . Equality and Judicial Neutrality , Toronto : Carswell .
- Mahoney . “ ‘International Strategies’ ” . 134
- Malcolm , D. 1993 . ‘Women and the Law — Proposed Judicial Education Programme on Gender Equality and Task Force on Gender Bias in Western Australia’ . The Australian Feminist Law Journal , 1 : 139 – 46 . for descriptions of these and other strategies. On Australian initiatives
- Brodsky and Day . Canadian Charter Equality Rights 65
- Bacchi . Same Difference 158 As just one example, in a classic case in 1873 Myra Bradwell was denied access to the bar to practise as a lawyer on the grounds that she was a married woman and that ‘the civil law, as well as nature herself, has always recognised a wide difference in the respective spheres and destinies of man and woman’
- Brodsky and Day . Canadian Charter Equality Rights 31
- McCrudden , C. , Smith , D.J. and Brown , C. 1991 . ‘Groups versus Individuals: The Ambiguity behind the Race Relations Act’ . Policy Studies , 12 ( 1 ) : 26 – 35 .
- Howe , B. 1991 . ‘The Evolution of Human Rights Policy in Ontario’ . Canadian Journal of Political Science , 24 ( 4 ) : 783 – 802 .
- Brodsky and Day . Canadian Charter Equality Rights 29 Brodsky and Day describe substantive equality as ‘not simply equality in the form of law (formal equality) but equality in the actual conditions of women's lives’
- Baines . “ ‘Women, Human Rights and the Constitution’ ” . 39 – 42 .
- Brodsky and Day . Canadian Charter Equality Rights 60
- Smith , L. , Cote‐Harper , G. , Elliot , R. and Seydegart , M. , eds. 1986 . “ ‘Making Sex Equality Real’ ” . In Righting the Balance: Canada's New Equality Rights , 37 – 43 . Saskatoon : Canadian Human Rights Reporter . Catharine MacKinnon talks about the implications of the fact that the Charter is structured primarily as a negative document in
- Brodsky and Day . Canadian Charter Equality Rights 27 – 30 .
- Clark , L. 1990 . ‘Liberalism and the Living‐Tree: Women, Equality and the Charter’ . Alberta Law Review , 28 ( 2 ) : 392
- Brodsky and Day . Canadian Charter Equally Rights 81 In Casagrande, ’the constitutional right of Roman Catholics in Alberta to establish separate schools was characterized as a “group” right, overriding the individual rights to equality in section 15
- Brodsky and Day . Canadian Charter Equality Rights 36
- Vickers . Politics as if Women Mattered 322
- Vickers . Politics as if Women Mattered 7 A theme which deserves further study in the way in which groups like LEAF and NAC have responded to demands to be representative of the diversity of women in Canada. NAC eventually adoped a Three Nations position to reflect the demands of Quebec and First Nations women; LEAF altered its Board membership and instituted a consultative process intended to make its litigation work representative of all women
- Sheehy . “ ‘Feminist Argumentation’ ” . 456
- Brodsky and Day . Canadian Charter Equality Rights , 188 – 196 .
- Brodsky and Day . Canadian Charter Equality Rights 91 – 92 .
- Brodsky and Day . Canadian Charter Equality Rights 87
- Brodsky and Day . Canadian Charter Equality Rights 208 91
- Kingdom , E. What's Wrong with Rights? Problems for Feminist Politics of Law , 138 – 140 . Edinburgh : Edinburgh University Press . There are different views about whether the enshrining of positive rights is possible. One position is that Bills of Rights are primarily directed towards the protection of civil and political rights and that it is meaningless to declare social and economic rights since these cannot be legislated. On the other side are proponents of ‘social welfare rights’. For a summary of this debate see
- Maroney , H. 1987 . “ ‘Feminism at Work’ ” . In Feminism and Political Economy: Women's Work, Women's Struggles , Edited by: Maroney , H.J. and Luxton , M. 100 Toronto : Methuen .
- Irving . “ ‘Republicanism’ ” . 26
- Sheehy . “ ‘Feminist Argumentation’ ” . 467
- Sheehy . “ ’Feminist Argumentation’ ” . 458 – 460 .
- Atcheson . Women and Legal Action 171
- Sheehy . “ ‘Feminist Argumentation’ ” . 451 Elizabeth Sheehy notes that none of these decisions depended upon section 15
- Mahoney . “ ‘International Strategies’ ” . 124 – 7 . On the anti‐pornography decision and some other victories
- McHugh , M. ‘The Law‐Making Function of the Judicial Process — Part II’ . ALJ , 62 124 This point was made by Justice McHugh in 1988 before his appointment to the High Court
- Wheeler , F. 1993 . ‘Common Law Native Title in Australia — An Analysis of Mabo v. Queensland [No 2]’ . Federal Law Review , 21 : 278
- Kingdom . What's Wrong with Rights? 140 – 1 .
- Gibson , S. 1990 . ‘Continental Drift: The Question of Context in Feminist Jurisprudence’ . Law and Critique , 1 ( 2 ) : 187
- Kingdom . What's Wrong with Rights? 115