On March 17, 2010, LEAF intervened in the Supreme Court of Canada case of Withler v. Canada.  The case is significant since it is the first appeal heard by the Supreme Court of Canada in over two years in which the only basis for the challenge is a violation of 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.  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 allege 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 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, their caregiving roles and the limited participation of women in the workforce historically.  LEAF argued that the exclusion of predominantly elderly single women from a scheme 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.

On April 12, 2010, LEAF filed its intervener factum in the sexual assault case of N.S. v. R..  The appeal is scheduled to be heard in June 2010.  LEAF has been granted leave to make oral submissions. 

 

N.S involvesa sexual assault complainant who wears a niqab - a veil which covers the face, with the exception of the eyes.  N.S. alleges that she was sexually abused as a child from the ages of six - 12.  She is now in her early 30s.  The accused are the complainant's uncle and cousin.   N.S. reported the alleged abuse to a teacher when she was a child, but her father convinced the police not to lay charges.

 

The accused object to N.S. wearing her niqab while giving evidence at the preliminary inquiry and trial, asserting a right to "demeanour evidence", including N.S.'s full facial expressions.  The preliminary inquiry judge ordered the complainant to remove her niqab.  On appeal to the Ontario Court of Appeal, N.S. seeks an Order that she is entitled to wear her niqab at the preliminary inquiry and trial.  

 

LEAF's factum argues 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 argues 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 which re-victimize sexual assault complainants and reinforce their inequality.  In particular, the objection must be seen in the context of defence tactics to "whack the complainant", in an attempt to humiliate and intimidate complainants so that they withdraw from participating at trial or are diminished and beaten down as witnesses for trial.

 

LEAF argues 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.