Person's Day 2009

Person’s Day is an important opportunity to remember those Famous Five women who challenged Canadian law by insisting that women, too, were persons and so had legal rights.

Each year since 1979, the Governor General’s Awards in Commemoration of the Persons Case honour ongoing contributions made to women’s equality rights in Canada.

Women’s equality can be and is achieved in many different arenas – all of them equally important. Past recipients of the Person’s Day Award include such notable women as scientist Ursula Franklin, journalist Michelle Landsberg, lawyer Marilou McPhedran, Rosemary Speirs, founder of Equal Voice and Bonnie Diamond past executive director of NAWL.

Of course, the work towards women’s equality continues today and will likely continue long past the end of my life. While achieving equality often seems like an illusory goal, perhaps never to be achieved, we have passed a number of important milestones and Person’s Day provides a good opportunity to reflect on some of those.

In particular, I want to look at how we have advanced women’s equality in different areas of law.

Before 1973, married women in Canada did not have an automatic right to an equal share of the matrimonial property if their marriage ended. Because property was most often owned by men, who were the ones with the full time, better paid jobs, women often left a marriage with almost nothing to show for their hard, unpaid and largely unacknowledged work raising children, running the household and supporting the husband’s career.

However, this changed because of a woman named Irene Murdoch – an Alberta “farm wife” as she was called at the time, although I am sure her husband was not called a “farm husband.”

Irene had worked the 480-acre family farm alongside her husband for the 25 years of their marriage. When she and he husband divorced, she made a claim for half the cattle ranch. As she said: “I just thought when you went into a marriage, it was a partnership basis, 50/50.”

The Supreme Court of Canada did not agree with her and gave her a paltry $200/month in support. A later ruling gave her a lump sum payment of $65,000 but took away the monthly support.

Irene Murdoch’s case made headlines and began the fight to change family laws related to property division. By the late 1970s, provincial legislation, including Ontario’s Family Law Act, had been rewritten to reflect Irene’s understanding of marriage as a partnership. Now, in Ontario and elsewhere in Canada, women who are in married relationships have a legal right to an equal share of the family property that has accumulated over the course of the marriage.

This was one large step towards increased equality for women.

In 1979, Stella Bliss left her job 4 days before giving birth. Because of this, she was not entitled to full benefits under the Unemployment Insurance Act. Stella did not accept this rejection, and challenged the limitation of benefits as discriminating against her because of her sex. Now remember, both this case and the Irene Murdoch case were making their way through the courts before the Charter of Rights and Freedoms, so these women did not have section 15 to rely on. Instead, they had to rely on the Bill of Rights, which offered more limited protection against discrimination.

Stella was unsuccessful in her appeal, because the Federal Court of Appeal found that the discrimination she had experienced was not against her as a woman but was against her as a pregnant person, which was not a protected ground.

The decision in this case influenced the development of the equality provisions in the Charter less than a decade later. And, a few years after that in 1989, the Supreme Court overturned the Bliss decision in a case called Brooks v Safeway. In this important case, then Supreme Court Justice Dickson announced the startling scientific discovery that only women can become pregnant, therefore discrimination on the basis of pregnancy is discrimination on the basis of sex.

Another large step towards women’s equality.

In 1973, the Supreme Court of Canada ruled against Aboriginal women in Canada when it found that the Indian Act was valid even though it denied native status to Indian women who married non-natives. (Indian men did not lose their status by marrying non-native women.) It took more than 10 years of hard, courageous work by Aboriginal women, but in 1985, with the backing of the Charter, they won full status.

Another large step towards women’s equality.

In terms of criminal law, rape is probably the area where women have faced some of the largest barriers but have also achieved some of the most significant victories.

Historically, women have been considered the property of their husbands. As a result, men were free to treat their wives pretty much as they wanted. With respect to rape specifically, this patriarchal bias assumed that husbands had unlimited sexual access to their wives. As a result, before 1983, it was legal in Canada for a man to rape his wife.

Interestingly, historically, rape was seen largely as an offshoot of abduction and to be a greater offence to the woman’s husband or father than to the woman herself.

Since 1983, we have seen considerable improvement to the rape laws in Canada:

• it is no longer legal for a man to rape his wife
• women do not require a corroborating witness when they make an allegation of rape
• women cannot be questioned about their sexual history
• the gendered language of rape in the Criminal Code was replaced by the gender neutral language of sexual assault, which covered a wide range of sexual activities
• the need for a woman to file her complaint soon after the assault was eliminated
• the privacy of women’s therapy records has been greatly increased

More important steps forward for women’s equality.

In 2006, the provincial government made important changes to family law. It amended the Children’s Law Reform Act and the Arbitration Act.

Amendments to the CLRA made it mandatory for judges to consider violence within the family when making custody and access decisions.

The Arbitration Act changes required all family law arbitrations to be based on Canadian and Ontario family law, thus bringing to an end the use of other systems of law, including religious law, when resolving family disputes.

Both these changes are important steps forward for women’s equality.

In 2009, the provincial government implemented changes to restraining order legislation that will keep women and their children safer when they leave an abusive family situation.

Another important step forward for women’s equality.

These are but a few examples of how women’s equality has been advanced through reforms to criminal, family and other laws.

So – are we persons yet? Well, I would say that while we have made enormous progress in that direction, we are not yet fully persons:

• we earn only 73 cents for every dollar earned by men and, for women with post-secondary education only 69 cents
• we do not have a national child care system
• we do not have real access to abortion, despite having the legal right to choose to terminate a pregnancy
• we are underrepresented politically
• a lack of legal aid means that many women must make their way through family court without legal representation
• ongoing myths and stereotypes about women, sexuality and rape mean that rape remains the most underreported crime in Canada

Perhaps most importantly, we still face high levels of male violence, particularly from men we know.

The need for us to continue to work together for women’s equality is as great as ever. Person’s Day is an excellent and appropriate time for us to recommit ourselves to the struggle. We will succeed – of that I have no doubt, because our strength when we work together, across our many diversities, cannot be defeated.

As Marge Piercy puts it in her poem “The Low Road:”

“It goes on one at a time

It starts when you care to act

It starts when you do it again after they said no

It starts when you say we and know who you mean

And each day you mean one more.”