Most Recent or Active Cases
LEAF Intervening in Johnstone v. Canada Border Services Agency at the Federal Court of Appeal (February 7, 2014)
LEAF has been granted leave to intervene in Johnstone v. Canada Border Services Agencybefore the Federal Court of Appeal. In this case, the complainant, Fiona Johnstone, asked her employer, the CBSA, to allow her to have a regular shift in order that she could make ongoing child care arrangements. Both she and her husband are employed by the CBSA, and their shifts can start at any one of six times in the day or night, any day of the week, and these shifts change every six weeks. There is no predictability whatsoever that would enable Johnstone to arrange for regulated or reliable childcare for her children. Despite accommodating the request of a set shift for other workers, who made the request based on religious or medical grounds, the CBSA refused to do so for Johnstone, on the basis that her decisions related to childcare are in the realm of personal choice.
The Canadian Human Rights Tribunal agreed with Johnstone that the CBSA had discriminated against her on the basis of her family status. Evidence before the Tribunal indicated that the CBSA could easily have accommodated her request (as they had for other employees) and that it would not have cost the employer any money to do so. Further, Johnstone was forced to reduce her full-time position to part-time in order to ensure childcare for her children, and the Tribunal awarded damages to her for her lost benefits and pension. The Federal Court upheld the Tribunal decision and the CBSA appealed the decision to the Federal Court of Appeal.
Why LEAF’s Voice Needs to be Heard
The law in Canada is unsettled with respect to family status discrimination. The key issue on appeal is whether childcare obligations fall within the scope of family status protection under the Canadian Human Rights Act, and if so, the appropriate test for determining whether an employer has discriminated on this ground. The case is expected to clarify the scope of family status protection, as there are competing lines of authority, making this a case of significant national importance for caregivers across Canada. Regarding the test for showing prima facie family status discrimination in human rights cases, the CBSA is urging the Court to adopt a test that would place an additional burden on family status claimants. LEAF will argue that there should be no higher threshold for family status cases. LEAF will explain how a different threshold for proving family status discrimination will disproportionately and adversely impact women.
Given that caregiving obligations predominantly fall to women in Canada, LEAF will assert that family status discrimination is intertwined with sex discrimination. LEAF will argue that family status discrimination is compounded for racialized women, women living in poverty, women with disabilities, Indigenous women and women with other intersecting identities. LEAF will also challenge the rhetoric of and assumptions around the matter of ‘choice’ for women regarding employment and caregiving, and urge the Court to acknowledge how we as a society benefit from accommodating the ‘choice’ to have children.
LEAF recognizes the profound lack of affordable, quality daycare in Canada as well as the challenges we all face in caring for our family members at all stages of life. Johnstone is an important opportunity for women to address these issues and to ensure that discrimination on the basis of family status is understood in all its complexity.
LEAF’s oral argument will be presented to the Federal Court of Appeal in Toronto on March 11, 2014, by our pro bono counsel Kate Hughes and Danielle Bisnar of the firm Cavalluzzo, Shilton, McIntyre, Cornish LLP. Our factum is available here.
Saskatchewan Human Rights Commission v. Whatcott (SCC) (Judgment February 27, 2013)
In Whatcott, the Supreme Court of Canada upheld the constitutionality of the prohibition of hate speech in human rights legislation, stating “words matter”. LEAF intervened in this appeal to the SCC, submitting that hate speech causes deep harm to vulnerable groups and to society at large and that hate speech prohibitions in human rights legislation are justified. LEAF’s arguments in this case focused on hate speech as a form of discrimination and the multiple ways that hate speech harms women, especially amplified at the intersection of race, sexual orientation, class, ethnicity or other status.
The facts of the case are as follows. In 2001 and 2002 William Whatcott published four flyers under the name of Christian Truth Activists, which he placed in mailboxes in homes in Saskatoon and Regina. The flyers contained homophobic messages including “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools” and referring to LGBTQ persons as “dirty,” “filthy,” “degenerate” and as pedophiles. Four complaints were made to the Saskatchewan Human Rights Commission alleging that the flyers promoted hatred against individuals because of their sexual orientation in violation of s.14(1)(b) of The Saskatchewan Human Rights Code. The Saskatchewan Human Rights Tribunal found that the flyers constituted hate speech. The Saskatchewan Court of Queen’s Bench upheld this finding. The Saskatchewan Court of Appeal, however, held that the flyers did not contravene the Code. The Court of Appeal was of the view that in the context of a debate about policy and morality, the flyers could not be considered a hate publication. The Saskatchewan Human Rights Commission appealed to the SCC. At the Supreme Court level, Whatcott challenged the constitutionality of the hate speech provision in the Code, arguing that the provision breached his freedom of expression and freedom of religion, and could not be justified.
In a unanimous decision, the Supreme Court held that the Saskatchewan hate speech provision (with some words removed because they were overbroad) was justified and constitutional.
The Court considered the definitions of “hatred and contempt,” affirming the analysis of the Court in 1990 in R. v. Keegstra and Taylor v. The Canadian Human Rights Commission, and setting out the approach that courts and tribunals should use in interpreting these terms. The Court explained that they refer to expression of an unusual and extreme nature, involving vilification, dehumanization, and reviling. This interpretation excludes merely offensive expression.
The Court noted that freedom of expression is central to our democracy, but it is not absolute, and limitations may be justified under s. 1 of the Charter. In considering justification for the limit, the Court held that the objective of the legislation is pressing and substantial. The Court recognized the harm caused by hate speech, not only to the targeted group, but also to society at large. “Hate speech lays the groundwork for later, broad attacks on vulnerable groups,” Justice Rothstein wrote. “These attacks can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.” A “particularly insidious” effect of hate speech is that it inhibits the expression of the targeted group, Justice Rothstein noted.
The Court noted that framing speech as arising in a “moral context” or “within a public policy debate” does not cleanse it of its harmful effect. The Court rejected Whatcott’s argument that the flyers were critical of same-sex behaviour, as distinct from sexual orientation, and therefore did not contravene the legislation. Justice Rothstein wrote that attacks on conduct stand as proxy for attacks on the group itself, and that the distinction between sexual conduct and sexual orientation should not serve to avoid the hate speech prohibition.
The Court went on to hold that the prohibition against hate speech involves balancing between freedom of expression and equality rights. The Court concluded that the limitation on freedom of expression by the prohibition of hate speech, when properly defined and understood, is demonstrably justified in a free and democratic society.
The Court applied the same justification analysis to the infringement of freedom of religion. The Court held that it does not matter whether the expression at issue is religiously motivated or not; if, viewed objectively, it exposes or is likely to expose the vulnerable group to detestation and vilification, then the religious expression is captured by the hate speech prohibition.
The Court went on to conclude that two of Whatcott’s flyers contravened the hate speech prohibition, but two flyers did not. The Court upheld the Tribunal’s remedy relating to the two flyers that contravened the legislation and the Tribunal’s prohibition on further distribution of those flyers.
LEAF had submitted to the Court that hate speech, like sexual harassment, is a practice of discrimination which is properly limited by human rights statutes. LEAF’s factum addressed the gendered harms of hate speech, including the relationship between hate speech and violence against women, like the December 6, 1989 massacre at the Ecole Polytechnique in Montreal, the murder and disappearance of Indigenous women in Canada and targeted violence against lesbians. LEAF argued that the prohibition of hate speech is constitutionally valid. The significant Charter equality, security of the person, freedom of expression and other rights of groups targeted by hate speech are protected and promoted by limits on hate expression. LEAF’s factum focused on the importance of the case from the perspective of access to justice for women.
LEAF has a long history of equality analysis and advocacy with respect to the importance of statutory limitations on freedom of expression. LEAF intervened in the Supreme Court of Canada cases of Keegstra and Taylor in 1990. In December 2009, LEAF made submissions to federal government on the importance of s.13 of the Canadian Human Rights Act which also prohibits hate speech [see link below].
Eric v. Lola (SCC) (Judgment January 25, 2013)
LEAF intervened in this appeal.
The case involved a s.15 equality rights Charter challenge to the exclusion of de facto (common law) spouses from the articles of the Québec Civil Code (“CCQ”) Book on the Family which provide for spousal support, sharing of property and rights to the family residence on separation and divorce of married and civil union spouses.
In Québec, women in de facto unions are not entitled to any of these family law protections, regardless of the length of the relationship, the number of children born into the union, the level of economic interdependence, and the disadvantages and corresponding advantages arising from the relationship, particularly where gendered child-bearing and caregiving roles result in women contributing the bulk of unpaid work in the home.
“Lola” and “Eric” were common law spouses for 7 years and had three children together. Lola wanted to marry, but Eric refused, saying that he didn’t believe in the institution of marriage. Lola argues that her exclusion from the CCQ provisions discriminates against her on the basis of marital status.
LEAF supported Lola’s claim that the exclusion of de facto spouses is discriminatory by focusing on the gendered effects of the differential treatment of married and unmarried spouses. LEAF will argue that an examination of lived effects and systemic outcomes shows that the CCQ perpetuates prejudice and disadvantage experienced by women in de facto unions by disregarding their contributions and needs. The exclusion of de facto spouses from this legislative protection exacerbates the feminization of poverty by leaving many cohabiting women economically devastated by relationship breakdown.
LEAF challenged the government’s justification for the differential treatment of married and cohabiting spouses. The government of Québec argued that the CCQ respects the “choices” of couples who decide not to marry and thus avoid the rights and obligations of support and sharing of property. LEAF argued that choices are not made in the abstract but in real lived conditions of inequality, including relationships of power and powerlessness which may seriously limit or constrain women’s choices with respect to the structure of their relationships (as in the facts of this case). LEAF will argued that choice cannot justify systemic inequalities which are created, perpetuated or reinforced by an impugned law.
The SCC decision was disappointing. Despite the majority finding that the lack of protection for spouses in Quebec does represent a breach of the equality provisions of s. 15 of the Canadian Charter of Rights and Freedoms, the impugned provisions have been deemed constitutional. Section 1 of the Charter allows for laws to be upheld even if they do breach our guaranteed equality rights because there are “reasonable limits” to those guarantees within a free and democratic society.
Of the justices who considered s. 1, only one found that it “saved” the laws she found to be discriminatory. As a minority of the court had not found that s. 15 was breached, they did not consider s. 1. As a result, the impugned provisions were saved.
Justice Abella, writing for the majority who find a breach of s. 15, wrote: “fairness requires that we look at the content of the relationship’s social package, not at how it is wrapped”. Further, she noted that: “the right to support – and the obligation to pay it – did not rest on the legal status of either husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship had created.”
R. v. Ryan (SCC) (Judgment, January 18, 2013)
The Canadian Association of Elizabeth Fry Societies (CAEFS) and the Women’s Legal Education and Action Fund (LEAF) have been granted leave to intervene in Coalition at the Supreme Court of Canada in R. v. Ryan, as the Court considers for the first time, the availability of the defense of duress in the domestic violence setting.
At trial the judge accepted the testimony of the Defendant (Ms. Doucet) regarding the extensive history of physical, psychological and sexual violence at the hands of her husband, including instances of death threats, stalking, strangulation and assault with a weapon. Mr. Ryan told Ms. Doucet that he would kill her and their daughter if she ever tried to leave. When she finally left Mr. Ryan after 15 years, she feared for her and her daughter’s life and repeatedly sought the assistance of the police and victim services for protection. Her pleas went unheeded. With no place left to turn, Ms. Doucet sought the assistance of a third party to protect herself and her daughter. But the third party turned out to be a police officer working under cover. On the basis of her discussions with that undercover officer, Ms. Doucet was charged with counseling to commit murder.
Both the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal acquitted Ms. Doucet on the basis of duress, recognizing she had been subjected to a “reign of terror” and reasonably feared that she and her daughter would be killed by Mr.Ryan, she made repeated attempts to seek the protection of the state, and that she had “no other safe avenue of escape open to her”.
CAEFS and LEAF intervened in the appeal in order to raise fundamental issues about the availability of defences to abused women who take action to protect themselves and their children. Far too many women and children who experience violence at the hands of their abusive male partners or fathers are not protected by the state. Decisions not to prosecute abusive men too often reflect stereotypical assumptions about battered women and the options available to them. CAEFS and LEAF maintain that sections 7 and 15 of the Charter require that criminal law defences be defined in a manner that address the realities of abused women’s lives, including the defense of duress.
This case was heard by the Supreme Court of Canada on June 14, 2012 and judgement rendered on January 18, 2013.
The Court has held that the defence of duress does not apply but has ordered a stay of proceedings. Thus Ms Ryan does not have to endure further prosecution.
Unfortunately, while the SCC says the case is exceptional, there is good reason to believe it is not. “Every six days a woman in Canada is killed by an intimate partner. Repeatedly those deaths have been tied to inaction or inappropriate action on the part of the criminal justice system. The Canadian government has unmet obligations under international law to show due diligence in protecting women from sexist violence.” advised Lee Lakeman, speaking on behalf of the Canadian Association of Sexual Assault Centres (CASAC). “Women escaping abuse are entitled to defend against their attackers and the law must change to ensure that they are not criminalized for acting in their life threatening desperation”, continued Ms Lakeman.
While the stay ends the prosecution of one woman, unfortunately the Court’s analysis of criminal defences does not hold out hope for the evolution of defences generally. The Court focuses on a doctrinal analysis and some clarification of defences, but does not address concerns that they fail to capture the diversity of human experiences to which they need to be applied.
N.S. v. R. (SCC) (Judgment December 20, 2012)
N.S v. R. involves a sexual assault complainant who wears a niqab – a veil that covers the face, with the exception of the eyes. The question before the SCC was whether N.S. can access the Canadian justice system wearing her niqab.
LEAF intervened before the Ontario Court of Appeal and the Supreme Court of Canada.
N.S., who is now in her 30s, alleges that she was repeatedly sexually abused as a child from the ages of 6 – 12 by her uncle and cousin (the accused). N.S. reported the alleged abuse to a teacher when she was a child, but her father convinced the police not to lay charges. As a result, charges were not laid until 2007.
On the first day of the preliminary inquiry, the accused objected to N.S. wearing her niqab while giving testifying, asserting a right to “demeanour evidence”, including N.S.’s full facial expressions.
The preliminary inquiry judge ordered the complainant to remove her niqab. The Ontario Superior Court of Justice and the Ontario Court of Appeal quashed that order. The lower courts, however, did not hold that N.S. has a right to wear the niqab. Instead both courts directed that the accuseds’ objection be re-considered by the preliminary inquiry judge. N.S. is appealing to the SCC for an order that she is entitled to wear the niqab at the preliminary inquiry and trial.
LEAF argued that N.S. is entitled to wear her niqab at the preliminary inquiry and trial, and that an Order requiring N.S. to remove her niqab as a precondition to testifying would violate her rights under ss.7 and 15 of the Charter.
LEAF argued that the accuseds’ objection to the complainant testifying in her niqab must be situated in the context of the historical and ongoing legal and procedural norms that re-victimize sexual assault complainants and reinforce their inequality.
In particular, LEAF argued that the objection must be seen in the context of defence tactics to “whack the complainant.” In other words, the removal of the niqab in this context is best understood as an attempt to humiliate, degrade and intimidate the complainant. Such intimidation can force a complainant to withdraw from participating at trial, likely putting an end to the prosecution.
LEAF’s submission was that whatever one’s personal views are on the niqab, effectively disenfranchising sexual assault complainants who wear the niqab from the criminal justice system is inconsistent with promoting their substantive equality and respecting and protecting their s.7 Charter rights to life, liberty and security of the person.
In a split decision, the SCC imposed a test aimed at balancing the complainant’s rights against those of the accused.
Dovigi v. Razi (Ont. CA) (Judgment May 31, 2012) (SCC Leave Denied)
Appeal from 2012 ONSC 1199
This case has important repercussions for the equality, autonomy, and mobility rights of pregnant women.
In this case, a woman who became pregnant in Ontario decided to move to California when she was seven months pregnant. She gave birth to the child in California, and they continue to reside there together. Immediately following the birth of the child, the father started custody and access proceedings in Ontario.
An Ontario family law judge found that Ontario has jurisdiction over custody and access issues related to the child. In her reasons, the judge stated that the mother’s move was “analogous to child abduction.”
The judgment was successfully appealed. If the judgment had been upheld, it would have had serious consequences for women. It would have meant that pregnant women were effectively prevented from moving without the consent of the father. If a pregnant woman moved without consent, she would have risked being dragged back to litigate custody in a jurisdiction where she may have no home or support. The requirement to obtain the father’s consent would be particularly dangerous in situations where women are abused. Further, if moving without consent is tantamount to abduction, women could find themselves subject to criminal prosecution if they leave the jurisdiction and refuse to return.
Requiring a woman to obtain permission from a man with whom she may have no ongoing relationship or contact is a serious infringement of women’s Charter rights. The trial decision flew in the face of Supreme Court of Canada jurisprudence that repeatedly affirms women’s rights to control our own bodies, including the right to decide whether to continue or terminate a pregnancy. Surely the right to bodily autonomy must include the right to decide where to live while pregnant, and where to give birth.
LEAF was ultimately denied leave to intervene in the appeal. However, many of the above arguments were raised at the appeal, and LEAF applauds the decision of the Ontario Court of Appeal upholding the appeal and the Supreme Court of Canada’s refusal to hear further appeal.
R. v. D.A.I. (SCC) (Judgment February 10th, 2012)
On February 10, 2012 the SCC released its decision in R. v. D.A.I. confirming the importance of access to justice for sexual assault complainants with intellectual and other disabilities. LEAF intervened in Coalition with the Disabled Women’s Network Canada (DAWN-RAFH) to address access to justice for women with mental disabilities (who are a group of women that are disproportionately targeted for sexual assault). LEAF-DAWN argued that the Canada Evidence Act must be interpreted in a manner consistent with equality, which in this case means ensuring that those most marginalized are heard in Court. LEAF-DAWN also addressed the discriminatory stereotypes affecting sexual assault complainants with disabilities. In the past, these women were excluded from testifying if they couldn’t explain the meaning of concepts like promise, truth and falsehood. No other category of witness is required to meet this test. LEAF and DAWN argued that women’s voices must be heard and that excluding women with mental disabilities who are able to describe their experiences of abuse, exacerbates their victimization, devalues them as human beings and allows their abusers to continue the abuse with impunity. The Court put an end to arbitrary barriers to the receipt of testimony from these women and confirmed the critical importance of their evidence to the societal goal of stopping pervasive sexual assault and prosecuting sexual offenders to justice.
D.A.I. involves an adult sexual assault complainant with an intellectual disability. She reported to a teacher that her step-father played “games” with her that involved him touching her genitals, breasts and buttocks. She gave a videotaped statement to the police and she gave evidence at the preliminary inquiry. At trial, the accused challenged the complainant’s competence to testify. Under the Canada Evidence Act, if an adult witness cannot understand the meaning of an oath or solemn affirmation, that person can still testify provided they can communicate the evidence and they promise to tell the truth.
The legal question in this appeal was whether a promise to tell the truth requires the witness to explain or demonstrate an understanding of “truth” and the promise to tell the truth. The judge in this case asked the complainant questions like “what do you think about the truth” and “if you don’t tell the truth do you go to jail”. The judge was not satisfied with the complainant’s responses to these questions and held that she was not competent to testify. The complainant’s evidence was therefore not before the Court and the accused was acquitted. The SCC allowed the appeal and ordered a new trial
R. v. Rhodes (Man. C.A.) (Motion for Leave to Intervene Nov. 3, 2011)
This case has been referred to by many as the “sex is in the air” case. On October 12, 2010 the appellant Rhodes was convicted of sexually assaulting the complainant, a young Aboriginal woman half his size, on the side of a deserted highway north of Thompson, Manitoba. During the assault the complainant cried that Rhodes was hurting her (he responded it would only hurt for a little while) and asked Rhodes if he planned to kill her. She had bruises and cuts on her backside and scrapes from running through the forest half-dressed to escape from him. On February 18, 2011, he was sentenced to a conditional sentence (no jail-time). In sentencing, the judge referred to various mitigating factors including that “sex was in the air”, the complainant was wearing a tube top with no bra, high heels and makeup, and referred to Rhodes as a “clumsy don juan” who “misread signals” and engaged in “inconsiderate behaviour”. These statements invoke discriminatory beliefs about sexual assault complainants, including that women fantasize about rape and that women are to blame for our assaults by the way we dress, for being intoxicated or in a bar, or if we engage in what is perceived to be “risky” behaviour.
The accused appealed conviction and the Crown ultimately conceded that there should be a re-trial. Both parties argued that the Court of Appeal could overturn the conviction on the basis of an alleged technical legal error by the trial judge in assessing the evidence in his reasons for judgment (for the criminal lawyers who are reading this, a W.(D.) error).
LEAF sought leave to intervene in the appeal to address the ongoing influence of rape mythologies in the prosecution of sexual assault, particularly in cases where the complainant is an Aboriginal woman. LEAF argued that the grounds for overturning the conviction proposed by the Crown and the Respondent were themselves fatally informed by the very rape mythologies that emerged in the trial judge’s reasons and that the application of the W.(D.). test in sex assault cases is influenced by discriminatory views and gender bias.
LEAF was ultimately denied leave to intervene, primarily on the basis that the Crown had conceded a retrial. LEAF’s motion for leave to intervene, which was front page news, nevertheless had a significant impact in raising public awareness of the systemic under-reporting and under-prosecution of sexual assault and the prevalence of discriminatory beliefs about sexual assault complainants at every stage of the criminal process, from the response by police to reports of sexual assault, to prosecution, to trial and appeal.
L.M.P. v. L.S. (SCC) (Judgment, December 21, 2011)
L.M.P. v. L.S. is an important Supreme Court of Canada family law appeal regarding entitlement to spousal support. The appeal concerned a lower court Order terminating a disabled wife’s spousal support four years following the parties’ divorce. At the time of divorce, the parties had negotiated a Consent to Judgment which provided, among other things, for spousal support on an indefinite basis and no requirement that the wife seek employment. The wife argues that these terms reflected her permanent disability.
Four years later, when the wife learned of the commercial litigator husband’s increased income, she applied to vary child support. The husband responded by seeking to vary and terminate support on the basis that the wife was never really too disabled to work. Despite the terms of the negotiated Consent to Judgment and the fact that there had been no change in the wife’s medical condition since the Judgment was entered, the Court accepted the husband’s arguments and reduced and then terminated support (subject to any further review). Further, the Court terminated support despite the fact that the wife: was a caregiver for the children and household during 13 of the 14 years of the parties’ marriage, had very limited education and work experience, has suffered from multiple sclerosis since the first year of the marriage, and was diagnosed by her physician and a private insurer as permanently disabled. There was also no evidence before the Court that the wife could or would earn a meaningful income, if she could obtain employment at all.
LEAF intervened in Coalition with the Disabled Women’s Network Canada because LEAF is concerned that the decisions below represent a significant backwards shift in family law to a “clean break” approach to support, which ignores the economic disadvantage experienced by women at relationship breakdown caused by women’s caregiving roles and systemic labour market inequalities. If the Supreme Court of Canada upheld the lower court decisions, the judgment would have had particularly serious consequences for women with disabilities.
LEAF and the Applicant were successful, in that the SCC restored the indefinite spousal support to the disabled mother of two (which had been terminated by the lower courts). The SCC also rejected any new principles of material change that effectively shift us back to the days of the clean break approach to support, which was another significant concern motivating the LEAF-DAWN intervention.
Cunningham v. Alberta (SCC)(Judgment July 21, 2011)
On December 16, 2010, LEAF intervened in this Supreme Court of Canada appeal to address the interpretation and application of s.15(2) of the Charter which protects ameliorative programs (sometimes referred to as affirmative action programs) from s.15(1) Charter claims. The case involved an equality rights challenge to the exclusion of those who “voluntarily” obtain status under the Indian Act from Metis Settlement Membership under the Alberta Metis Settlements Act. LEAF took no position on the ultimate disposition of the case, but intervened to argue that the case should be decided on the basis of s. 15(1), not 15(2) of the Charter. LEAF contended that deference to government under s. 15(2) should be reserved for instances where the objection is to the existence of an ameliorative program. LEAF argued that claims by members of disadvantaged groups who have been excluded from such programs should be subject to full s.15(1) Charter scrutiny of the alleged discriminatory effects. LEAF’s concern was that deference in cases of underinclusion will improperly shield discriminatory legislation from Charter scrutiny and will allow the Court to look only at the purpose of ameliorative legislation, as opposed to its effects on the equality seeking claimant group. LEAF argued that protection of ameliorative programs even from claims by disadvantaged groups will almost certainly have a disproportionate impact on women (and others) who experience multiple layers of discrimination, and are thus more likely to be excluded from a targeted “affirmative action” program. LEAF also intervened to address the importance of residual sex discrimination under the Indian Act to a full contextual analysis of the appeal. In its judgment rendered on July 21, 2011, the SCC declined to follow LEAF’s arguments and upheld the impugned legislative provisions on the basis of s.15(2).
R. v. J.A. (SCC) (Judgment May 27, 2011)
This appeal involved the interpretation of “consent” under the sexual assault provisions of the Criminal Code of Canada. The Supreme Court of Canada in its seminal decision in 1999 in R. v. Ewanchuk, unanimously confirmed that consent to sexual activity must be active, voluntary and revocable, meaning that a woman can say “no” at any time. The Supreme Court in Ewanchuk held that consent cannot be implied, whether from a complainant’s dress or the fact that she said “yes” on an earlier occasion. R. v. J.A. involves a woman who reported that she was sexually assaulted by her common-law spouse. On the night in question, the accused strangled the complainant into unconsciousness. The complainant estimated that she was unconscious for approximately three minutes. When she awoke, she found herself bound and being anally penetrated with a dildo. The accused argued that the complainant consented “in advance” to the strangulation and the anal penetration that would take place while she was unconscious.
LEAF argued that by definition there can be no consent to sexual activity when a woman is unconscious and unable to say “no”. LEAF argued that “advance consent” would re-introduce the discredited notion of “implied” consent into Canadian law. LEAF also situated the strangulation and unconscious penetration of the complainant in the context of domestic abuse and systemic violence against women.
In its judgment rendered on May 27th, 2011, the Supreme Court of Canada agreed and held that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…. requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement”.
R. v. L.B. (Ontario C.A.) Judgment March 2, 2011
R. v. L.B. involves the interpretation of the infanticide provisions of the Criminal Code. The crime of infanticide is one of only two gender-specific crimes in the Code. The offence recognizes the reproductive functions and caregiving roles of women and the unique stressors accompanying those roles. LEAF intervened in the case to ensure that the offence is interpreted in a manner which acknowledges the gendered context of the crime.
LEAF argued that the young, socially isolated and otherwise marginalized women, who commit the offence often in desperate and tragic circumstances, should have access to the reduced culpability offence of infanticide that carries a maximum sentence of 5 years (as opposed to life imprisonment for murder). LEAF’s factum argued that the offence of infanticide recognizes the overlapping social, economic, psychological, medical and other effects of childbirth and lactation in the commission of the crime and, accordingly, that infanticide continues to play an important role as a reduced-culpability homicide offence that is separate and distinct from murder.
The Crown application for leave to appeal the Ontario Court of Appeal judgment was denied by the Supreme Court of Canada.
Withler v. Canada (SCC Judgment March 4, 2011)
On March 17, 2010, LEAF intervened in the Supreme Court of Canada case of Withler v. Canada.
The case was significant because it was the first appeal heard by the Supreme Court of Canada in over two years in which the only basis for the challenge was a violation of s.15 equality rights under the Charter.
LEAF intervened to advance the equality rights analysis to ensure that the legal test fully accounts for the lived realities of marginalized groups. Specifically, LEAF’s factum focused on the role of comparison in the discrimination analysis. LEAF also intervened to emphasize the gendered dimension of the age-based discrimination challenge.
Withler involves a federal government supplementary death benefit (“SDB”) paid to spouses of deceased civil servants and armed forces members.
The claimants alleged that the legislation discriminates based on age because the death benefit payout decreases by 10 per cent each year for ten years once the participant lives beyond the age 60 or 65, at which point the participant’s spouse is entitled only to a minimum paid–up benefit.
The claimant class members are spouses of deceased civil servants and armed forces members. Noting that the overwhelming majority of surviving spouses are women, LEAF argued that the Supreme Court must consider the specific impact of the reduced benefit on elderly women. LEAF emphasized the financial vulnerability of elderly women, arising from the effects of:
- Systemic labour market discrimination.
- Women’s caregiving roles.
- The historically limited participation of women in the workforce.
LEAF argued that the exclusion of predominantly elderly single women from a plan which is intended to offer transitional funding upon the death of a spouse is discriminatory; the exclusion exacerbates their already existing economic and social inequality.
The Supreme Court of Canada released its decision on March 4, 2011. The Court dismissed the Appellants’ claim. In its ruling, however, the Court responded to concerns raised by LEAF with respect to the comparator group analysis under s.15 of the Charter.
Caron v. Alberta (SCC Judgment February 4, 2011)
In this case at the Supreme Court of Canada, LEAF intervened in coalition with the Council of Canadians with Disabilities, the Charter Committee on Poverty Issues and the Poverty and Human Rights Law Centre.
The appeal concerned the discretion of the Courts to award advance costs to claimants who would otherwise be unable to litigate their public interest claims.
The test for advance interim costs, also referred to as Okanagan costs, was set out by the Supreme Court of Canada in its 1993 decision in British Columbia (Minister of Forests) v. Okanagan Indian Band. The Coalition factum argues that the Okanagan test must be considered in light of:
- A contemporary understanding of the rule of law.
- The norm of substantive equality.
- The principle of access to justice.
- The legal principles underlying Canada’s international human rights obligations.
Over the past decade, the elimination of the Court Challenges Programme, restricted access to legal aid, and the decreased availability of any other sources of funding for equality seekers to enforce and advance their constitutional rights, have increased the barriers to access to justice for marginalized groups. Systemic barriers to the court process reinforce the subordination of poor litigants who are members of historically marginalized groups, such as women, people with disabilities, racial minorities and Aboriginal people, and as a consequence subvert justice in a constitutional democracy. The Coalition factum argues that the interests of justice require that legal claims that seek to advance the full social and political participation of marginalized and minority groups fall within the class of “exceptional” cases which are deserving of advance costs.
The Supreme Court of Canada upheld the jurisdiction of the lower courts to award advance costs on the facts in Caron. The Court held that whether a case is sufficiently “exceptional” to justify an award of advance costs must be determined on a case by case basis.