As reported on Slaw, the Women’s Court of Canada embarked on a western Canadian tour last week, including stops in Edmonton on March 12 and Calgary on March 13. According to Michael Lines’ post on Slaw, “As a rock group they are pretty unplugged, but as an educational experience, they … rock!”So who is the Women’s Court of Canada (WCC)? Taking our inspiration from Oscar Wilde, who said “the only duty we owe to history is to rewrite it”, we are a group of academics, litigators and activists who are re-writing equality rights law. The first six judgments of the WCC (in Symes v. Canada, [1993] 4 S.C.R. 695; Native Women’s Association of Canada v. Canada, [1994] 3 S.C.R. 627; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Law v. Canada, [1999] 1 S.C.R. 497; Gosselin v. Quebec, [2002] 4 S.C.R. 429; and Newfoundland v. NAPE, [2004] 3 S.C.R. 381) are published in volume 18(1) of the Canadian Journal of Women and the Law and are available electronically on Hein On-Line. Three of the judgments are available on The Court as well. The WCC has plans for a website, including a blog, and students who attended last year’s launch of the WCC in Toronto have created a Facebook group.
On its western tour, the WCC has been speaking about current issues in equality rights law and litigation, and about how the Women’s Court project advocates for substantive equality in Canadian law and policy. The WCC is also running workshops for law students where they compare the WCC decisions with their original Supreme Court of Canada counterparts. Students are encouraged to think about whether the Supreme Court’s judgments could have written another way. Using the same precedents and evidence that were before the Supreme Court, authors with the WCC project have crafted alternative versions of the original judgments that take substantive equality seriously. In the common law tradition, the judgment writers seek to develop a constitutional theory of substantive equality case by case.
What Alberta decisions might benefit from a more robust approach to equality rights? The WCC is not restricting itself to reconsiderations of Supreme Court cases, or even Charter cases for that matter. Perhaps Walter v. Alberta, a pre-Charter case where Alberta’s Communal Property Act, R.S.A. 1955, c. 52 was upheld in spite of its adverse impact on Hutterites, would have been decided differently if the constitutional value of equality had been taken into account. Spracklin v. Kichton, 2003 ABQB 992, which followed Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325 in finding that the exclusion of common law couples from matrimonial property legislation was not a violation of equality rights, would also qualify. The Supreme Court’s recent decision in Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9 would be worthy of a re-write as well (see The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges for analysis of the equality rights aspect of this case by Jonnette Watson Hamilton and myself).
The Women’s Court is always interested in hearing about what decisions merit reconsideration, so if ABlawg readers have any ideas about which Alberta cases fit the bill, you are encouraged to post responses.
