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Reviews / Comptes Rendus
| Radha Jhappan, ed., Women's Legal Strategies in Canada (Toronto: University of Toronto Press 2002)
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| WHEN PIERRE TRUDEAU repatriated Canada's constitution in 1982 and included a Charter of Rights and Freedoms, politicians, political activists, and academics all debated the potential legal and political consequences of entrenching liberal rights into Canada's legal system. A quarter-of-a-century later, it is unclear whether the egalitarian provisions of the Charter (Section 15 and 28) have had a cumulatively positive or negative impact on strengthening the status of minorities. In this context, Radha Jhappan, a professor of Political Science at Carleton University, has assembled a collection of essays that examine the successes and failures of Canadian feminist legal strategies since the inception of the Charter. The women-centred volume is divided into four sections, focusing on issues of equality, race, citizenship, family, and reproduction. The overall tone of the work is one that reflects "on the questions of whether women should persevere with legal projects despite their dangers, whether women's litigation strategies have been successful or unsuccessful and from whose point of view, and whether and how the strategies pursued to date might be improved, the better to represent the complexity of different women's situations and interests." (28) |
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The various essays reveal that the processes by which feminists seek legal reform, and the legal system itself are fraught with difficulties that often undermine the egalitarian aims of legal advocates. For those who ponder the social utility of rights, this collection is engrossing. The authors write as feminists who are bluntly honest about the hazards of their practice and passion. The value of this book lies in their capacity to dissect not only judicial responses but also, more importantly, the role that activists' strategies played in both poor and laudatory legal outcomes. It is this unrelenting focus on and critique of feminist legal strategy that gives the volume cohesion and energy. |
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Two leading essays by Jhappan and Sheila McIntyre form the introduction. They provide the contextual and analytical backbone for the rest of the chapters. Jhappan's and McIntyre's discussions reveal an intimate knowledge of the Canadian feminist legal movement during the last two-and-a-half decades — Jhappan's is more academic, while McIntyre's has a basis in legal activism, as she was a long-time member of LEAF (Women's Legal Education and Action Fund). Their pieces lay out the details of the various social movements and organizations as well as the legal cases that form the substance of feminist jurisprudence over the past 25 years. As with many of the essays in the book, they reveal the weaknesses of much feminist theorizing and legal advocacy about equality that has gone on in Canada since the inception of the Charter. The most glaring of these has been essentialism, in which a white middle- class woman came to represent the category of "woman" for all Canadian women, thereby obscuring women of different ethnic, racial, and class backgrounds. Consequently, this essentialist error has created forms of advocacy that reinforce legal and political systems that insist on splintering the disadvantages and identities of race and gender when dealing with women of aboriginal or ethnic backgrounds. Despite these pitfalls, both authors argue that women should continue to seek social and political redress through legal channels. McIntyre encourages broadening the processes of consultation that lead to feminist litigations by seeking advice from national public interest groups that are accountable to their constituents and are representative of the diverse demographics of Canadian society. In referring to the difficulties inherent in this type of social activism, she states "it is not whether to use the law for social change, but how to do so accountably." (74) Jhappan, in a later chapter entitled "The Equality Pit," also contends that women would be wise to broaden the normative basis of their legal petitions and to replace a highly disputed and often narrowly defined claim of equality with a more universalized rhetoric of "justice." |
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In another chapter, Diane Majury addresses specific debates about equality in the Canadian context. She even questions the privileging of gender equality in Section 28 of the Charter, arguing that its presence is a reflection of the relative political power of feminist activists in comparison to other minority representatives during the late 1970s and early 1980s. The critical debate in equality legislation asks whether law demands similar treatment, or whether it recognizes substantive differences between people and the need to remedy socially constructed inequalities. In 1989, the Supreme Court ruled in a pivotal case that the legal doctrine of equality required that the social context of disadvantage be taken into account. The formal theory of equality thus became muddied and destabilized by an increasing focus on the source and manifestation of social inequities. Marjury reasons that this has only partially transformed the judiciary's responses to discrimination. Decisions increasingly indicate a divergence between dissenting and majority decisions, between contextual approaches and more formalized ones. Nonetheless, she argues that the shifting debates about equality represent an ongoing and vital negotiation about its meaning both inside and outside the courts. |
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The latter sections of the book cover race, citizenship, family, and reproduction issues. One chapter examines the "Live-In Caregiver Program" (LCP) that allows foreign domestic workers to apply for landed immigrant status after serving as live-in caregivers in Canadian homes. According to the authors, although the courts have been sympathetic to workers in LCP cases, the judiciary has not adequately addressed the arbitrary, discretionary, and often discriminatory powers that are vested in the Department of Immigration. Another chapter scrutinizes the intersection of gender and race in equality-seeking efforts. Here, Joanne St. Lewis observes that Canadian jurisprudence is largely silent about racism in society and that there is little effort to have racially diverse law schools, law firms, and judges. Moreover, she draws attention to a record of LEAF's inability to theorize the role of ethnicity and race in its interventions on women's equality. She argues that while women's racial identities are essential, it is imperative that racialized women attend to traditions of oppression (especially those of colonialism and imperialism) that arise in a wide variety of cultures. In doing so, they will find common rather than disparate identities in their pursuit of equality. |
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Women's Legal Strategies in Canada ends with a chapter by Susan Phillips, an academic in public administration, who maintains that despite the many flaws inherent in the legal system and feminist pursuits of justice, the legal challenges are an essential aspect of political negotiation. At the very least, judicial disputes provide forums in which equality issues can be scrutinized and re-constructed. This is true even if one agrees with Sheilah Martin's position in this volume that "laws are not the only, or perhaps even the primary way of shaping human behaviour, and some significant sites of gender-based struggle may not be amenable to legally framed action." (354) This collection makes it apparent that the conflictual and imperfect struggle of feminists to achieve gender equality through the courts has added a welcome and beneficial complexity to political discourse and disputation in Canada. As a result, this volume will be of interest to those intrigued by the evolution of the Charter and of feminist activism in Canada. The essays are cogent and insightful. They speak with an authority grounded in an intimately detailed and candid assessment of Canadian feminist legal struggles. |
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C.G.K. Atkins
University of Calgary |
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