University of Alberta Faculty of Law Blog

Edmonton Event: "You Can't Keep a Good Woman Down"

In honour of International Women’s Day, and of Edmonton women, Metro Cinema is presenting a three-night event, “You Can’t Keep a Good Woman Down.” This event is being held to celebrate and highlight the creativity, resilience, and advocacy of women from all over the world.

This event takes place on March 8^th,15^th, and 22^nd and includes: a presentation by an array of Edmonton women authors to discuss and sign their books, an exhibition of Edmonton women’s artwork and discussion with filmmakers, and a variety of advocacy and enhancement opportunities to support Edmonton women and girls. This is an event you cannot miss!

You can access their website or Facebook page to buy tickets, or to obtain more information about this event.

Gender Representation in Canadian Politics - Why is there such Disparity?

Last week CBC News Edmonton posted a photo of Edmonton’s City Council welcoming their newest member, Moe Banga. However, the addition to council was not the only notable feature in the photograph. What stood out the most was the disparate gender representation within the City Council - specifically, that there was only one female amongst twelve men. Although the story of representation of Canadian women in politics is generally told as one of progress, this example proves that we still have a long way to go. Today’s post aims to show the extent of female underrepresentation in Canadian politics as well as explanations behind the disparity.

The 2015 federal election marked a significant change to the political landscape in Canada as voters put an end to the almost ten years of Conservative rule. The Liberal Party won in a landslide, naming Justin Trudeau as Prime Minister of Canada. Trudeau is known to advocate for gender equality, and this was publicized at his swearing-in ceremony. At the ceremony, Trudeau was questioned on why he named fifteen women and fifteen men to his cabinet. His response, which made headlines around the world was, “because its 2015.”[1] Even though Trudeau’s promise of a gender-balanced cabinet was honoured, the election was no real leap forward for women. Out of the elected 388 Members of Parliament, 88 of those were women - this translates into female Members of Parliament composing 26 per cent of all members, which is a mere one percentage increase from the last Parliament. In response to these numbers, Joan Wienman, the national vice-chair of Equal Voice stated that, “it’s a slight nudge of 1 per cent… A lot of work needs to be done. These numbers have not really changed, are we encouraged, no, not really. We are stuck in the mud.” She noted that the problem was, “that there were only 33 per cent women on the ballot for the major five parties.”[2]

On the other hand, the 2015 election in Alberta marked not only a historic victory for the Alberta New Democratic Party, but also for women in Canadian politics. The provincial NDP, “set the record for the party with the highest percentage of women elected in any federal or provincial government, according to a national organization that tracks those numbers.” Even though the Alberta NDP had the most women in any party, they only had a 33 per cent representation of women serving in the legislature, which demonstrates that gender disparity persists.[3]

Having seen the aforementioned photograph of Edmonton’s City Council, it comes as no surprise that Edmonton has become known for their lack of women in city leadership positions. In Edmonton’s 2013 municipal election, out of the 73 ward council candidates on the ballot, only fifteen were women; the twelve men to one woman sitting on City Council reflects that ratio. Bev Esslinger is currently the only woman on City Council, which was noted by the Canadian Centre for Policy Alternatives in their study on the best and worst places to be a woman in Canada. Accordingly, Edmonton appeared near the bottom of their 2015 ranking of Canadian cities.[4]

This raises the questions of what is discouraging women from going into politics, and how can we fix it? One explanation for this, that has been largely discredited, is that women’s levels of representation are due to voter preferences, meaning “that women are more or less likely to win office than men because voters may or may not show a preference for male candidates.”[5] In particular, “studies have found that voters are as likely to support male as female candidates.”[6] Since the voter preferences theory is not subscribed to, an alternative explanation for this disparity may be that parties are not selecting female candidates since they do not believe that they are the “best” or “winnable” candidates. It may be that “Canadian politics operate in a highly masculinized environment which privileges power and competition… male candidates are more likely to fit the perceived criteria simply by conforming to the norms associated with their gender.”[7] Further, women may not be willing and able to step forward to stand for office because of perceived “gender norms or lack of opportunity, financial resources and political interest.”[8]

Although these barriers exist, there are also opportunities and remedies which aid in alleviating them. Certain opportunities have appeared to work, which include “campaign schools, limits on campaign spending, and mentorship - and to raise awareness about the barriers women face in politics.”[9] Organizations such as Equal Voice, which is dedicated to electing more women to all levels of political office in Canada, also provide support and encouragement to women wanting to become part of the political spectrum.[10] Hopefully, we can continue to implement these opportunities for women, and thereby have greater female representation in the next municipal, provincial and federal elections.

If you enjoyed this post, stay tuned for an interview later this week with the first female prime minister of Canada, Kim Campbell! In this interview, she discusses her thoughts on gender disparity in politics and leadership roles.

 

[1] Adam Frisk, “‘Because it’s 2015’: Trudeau’s gender-equal cabinet makes headlines around world, social media” (5 November 2015), online: <http://globalnews.ca/news/2320795/because-its-2015-trudeaus-gender-equal-cabinet-makes-headlines-around-world-social-media/>.

[2] Peter Edwards,”Election proved no leap forward for women” (20 October 2015), online: <“http://www.thestar.com/news/federal-election/2015/10/20/election-proved-no-leap-forward-for-women.html>.

[3] Peter Edwards, “Record number of women elected in Alberta election” (6 May 2015), online: <http://www.thestar.com/business/2015/05/06/alberta-election-record-number-of-women-elected.html>.

[4] Kate McInturff, “The Best and Worst Places to be a Woman in Canada 2015:The Gender Gap in Canada’s 25 Biggest Cities” (July 2015), online: <https://www.policyalternatives.ca/sites/default/files/ uploads/publications/National%20Office/2015/07/Best_and_Worst_  Places_to_Be_a_Woman2015.pdf>.

[5] Brenda O'Neill, “Unpacking Gender’s Role in Political Representation in Canada” (2015), online: <http://revparl.ca/english/issue.asp?param=223&art=1643>.

[6] Ibid.

[7] Ibid.

[8] M Thomas, "Barrier To Women's Political Participation In Canada" (2013) 64 UNBLJ 218.

[9] Ibid at 232.

[10] http://www.equalvoice.ca/mission.cfm

"The Church has Spoken and Says No... That Door is Closed"

As discussed in yesterday's post, for the first time in the country’s history, Saudi Arabia granted women the right to vote in the 2015 election. This was a landmark decision made by King Abdullah, and it marked a significant and progressive achievement towards equal participatory rights for women in Saudi society. The right to vote for Saudi women thus leaves but one country to update its antiquated voting laws. Vatican City, the smallest country in the world and the Roman Catholic Capital, where the Pope wields strong political influence worldwide, has yet to grant women the right to vote.

The voting process in Vatican City is distinctly different from other countries. Only cardinals, who are men appointed as leaders of the Roman Catholic Church, have the right to vote in Vatican City for matters such as the election of a new pope.[1] Since women cannot become cardinals, they cannot legally vote in Vatican City. Notably, some men also do not have the right to vote since not all men are papal conclaves. Therefore, it seems this is not a quintessential gender equality issue, but also an issue of politics tied with religious precepts. Moreover, a movement for women’s suffrage in Vatican City has remained almost nonexistent. Unless women can expand their role in the church, they will be unable to comply with the strict policy providing that only cardinals have the right to vote. Women’s suffrage does not seem promising in the near future, as Pope Francis released a statement in 2013 that upheld the rule that women cannot become priests, clergy, or lay cardinals. His exacts words were that “the Church has spoken and says no… that door is closed.”[2] Further, Pope Francis stated that, “women in the Church must be valued, not ‘clericalized.’ Whoever thinks of women as cardinals suffers a bit from clericalism.”[3]

The Vatican’s refusal to grant women the right to vote is influenced by historical ideologies. The Catholic Church was and continues to be an active opponent of women’s suffrage. It argued that, “the Church wanted to prevent a moral deterioration which suffrage could bring and feared the development of a political structure and social climate deleterious to Catholicism.”[4] The Church also believed that a “traditionally constructed society was ordained by God, and any move by either sex on the terrain of the other was viewed as unnatural and a threat to the universal order.”[5] In addition, “the fundamental reason for the Church’s refusal to admit women to the priesthood is that it’s bound by the example of Christ. Jesus did not include women among his original 12 apostles, so the argument runs, and the Church is compelled to follow that example, restricting the priesthood today to men.”[6]  Unfortunately, these ideologies have had a persuasive impact on politics in many countries and is arguably one of the reasons why gender disparity still exists today.

Despite the refusal to grant women the vote, the Catholic Church and Vatican City have come a long way. Even though women are not qualified to vote in the country’s elections, they are increasingly being recognized as positive contributors to society. Last year, while speaking at the World Meeting of the Families in Philadelphia, Pope Francis called Catholic women “the future of the church”, praising their gifts and value to the church:

We know that the future of the church, in a rapidly changing society, now calls for a much more active  engagement on  the part of the laity. In a particular way, it means valuing the immense contribution that women, lay and religious, have made and continue to make to the life of our communities.[7]

Further, Pope Francis recognized that more women should hold leading positions in Vatican City. Specifically, he stated that there needs to be “a greater role for women in making decisions and holding responsibilities in the Church. [This] is one of the many ‘construction sites’ opening up in the Vatican.”[8] In addition, “there are about 750 women working in the Vatican, which means that one fifth of Vatican employees are women, [many] of which are in leading positions or in the curia.”[9] As such, even though women still do not have the right to vote in elections and are often refused powerful positions, they are increasingly being recognized as influential and prominent members of Vatican City.

Although Vatican City remains the last country to grant women the right to vote, this is by no means an indicator that the world is not ready to recognize equal rights for women. Vatican City’s religious political climate is unique and as discussed in our previous posts, women’s suffrage has increasingly gained more traction throughout the world. The increasing recognition of women’s rights, albeit often small and incremental, is indicative that society as a whole is working to diminish the bright line that maintains gender inequality. By studying and celebrating the history of women’s suffrage around the world, we continue to uphold and commit ourselves to equality between the sexes.

 

[1] Lauren Holter, “There's 1 Country Where Women Can't Vote & It's Seriously Time For It To Break With ‘Tradition’” (20 August 2015), online: <http://www.bustle.com/articles/105598-theres-1-country-where-women-cant-vote-its-seriously-time-for-it-to-break-with>.

[2]John L. Allen, Jr. “Why Pope Francis Won’t Let Women Become Priests” (6 March 2015), online: <http://time.com/3729904/francis-women/> [Allen].

[3] Ibid.

[4] Karen O’Connor, Gender and Women's Leadership: A Reference Handbook (SAGE Publications, 2010) at 64.

[5] Ibid.

[6] Allen, supra note 2.

[7] Lauren Barbato, “Pope Francis Says Women Are The Future Of The Church So Where Are They?” (26 September 2015), online: <http://www.bustle.com/articles/113294-pope-francis-says-women-are-the-future-of-the-church-so-where-are-they>.

[8] Christa Pongratz-Lippitt, “Women in leading positions at Vatican increasing” (3 December 2015), online: <http://ncronline.org/blogs/ncr-today/women-leading-positions-vatican-increasing>.

[9] Ibid.

#SaudiWomenVote

With the end of World War II, the political landscape in many countries changed. Women across the world were granted the right to vote both to repay them for their wartime work and as a result of the belief that women’s enfranchisement was fundamental to a growing society. Interestingly, some countries initially held out, continuing to deny women voting rights. Saudi Arabia was one of the last countries to hold out, as they prohibited women from participating in the country’s first municipal election in February 2005.[1] However, on December 12, 2015, women in Saudi Arabia were able to run for public office and vote for the first time. Although this was an empowering moment for women in Saudi Arabia, it was arguably a mere symbolic victory. Nonetheless, it was still an unprecedented achievement for Saudi women.

Saudi women did not easily gain this achievement - as was the case with rights granted to women previously in other areas of the world, they had to relentlessly demand it. In 2011, King Abdullah made an announcement that women in Saudi Arabia would be able to vote and run in future municipal elections.[2] It was argued that this move, “which came with a set of political decisions, was a temporary response to the region's political unrest, rather than real reform.”[3] As such, it was not surprising when political participation was denied to women in the 2011 election. The government justified this ban on female voters “on the same premise used to prevent them from voting in the 2005 elections; lack of institutional preparedness.”[4] In response to that exclusion, women in Saudi Arabia launched a grassroots campaign called the Baladi Campaign. Headed by women’s rights activists, the Baladi Campaign’s mandate was to achieve effective and full political participation through awareness. Through this campaign, women throughout Saudi Arabia aimed to effectuate change by actively demanding the right to vote. For example, some women showed up at voter registration offices insisting they receive voter identification cards.[5] In response to this campaign and other societal pressures, King Abdullah officially granted by decree, women the right to vote and run in elections starting in 2015.

It was no surprise that on December 12, 2015, the hashtag #SaudiWomenVote was trending on Twitter. Women from all over Saudi Arabia documented this historic event by posting pictures of themselves standing at the ballot box for the first time. Although many Saudi women shared this iconic moment, the electoral process hindered the effective participation of many others. Despite having women on the elections planning committee who could ensure full participation with affirmative measures and accommodation of female voters, women faced many challenges in the political process. Specifically, social and gender barriers prevented many Saudi women from fully participating.

There were many obstacles that women had to overcome in order to register to vote. One major difficulty was that the window for registration was very short. Voter registration took place August 22 to September 14, 2015, which was the country’s most popular travel period. The registration window also ended just before the annual Hajj pilgrimage, an annual event where Muslims travel to the city of Mecca. The Hajj pilgrimage is a mandatory religious duty for those who are financially able to make the journey.[6] Moreover, even if women were able to register in the short time period, the required documentation was too onerous. Women were required to bring an official identification card and proof of residency. This was a complicated and daunting task as “most women rely on a guardian to own property, and if female voters couldn’t secure any proof of residency in their own names, the municipality demanded a stamped certification from the local government. But some women were told that it was not a service anyone was equipped to provide.”[7] As well, many women faced equally prohibitive social pressures from family members with antiquated beliefs that politics is a male domain. Even if women were able to overcome all of these obstacles, they were left with yet another hurdle - their inability to get to the polling stations. Women in Saudi Arabia are not allowed to drive, and with just one day allocated to vote, it was almost impossible to vote during this designated time period. Women not only had to meticulously plan their commute in advance, but also faced the possibility that their male partner could simply refuse to drive them on voting day.

In addition to the barriers that female voters faced, qualified female candidates confronted their own challenges. Specifically, the main hurdle female candidates faced was “unjustified rejection based on an anonymous review by a ‘specialized entity’, also known as the Saudi Ministry of Interior. Just 979 female candidates, compared with 5,938 male candidates, managed to reach the final list, and the ability of female candidates to promise their platform was limited.”[8] The national election committee also demanded certain requirements from female candidates before they could promote their programs, “including gender-segregated campaign sites, no displaying of personal pictures, and assigning men as representatives for female candidates to interact with male voters during the promotional period.”[9]

As a result of these obstacles, only 130,000 Saudi women ultimately registered to vote. That figure fell far below male voter registration, which was 1.35 million.[10] Although voter registration for women was low, it seemed to be less a reflection of Saudi women’s interest in the electoral process, and more of an indication of the many barriers they continue to face. Attaining political power and a voice in the political process is not always as simple as having or not having the right to vote. As we have discussed in our previous posts, suffrage is gradual, and through incremental steps women can thereby improve their position in society. Hopefully, there will be a higher voter turnout for women in the next Saudi election, which could coincide with greater rights generally, such as the ability to drive oneself to the polling station!

[1] Pamela Paxton & Melanie M. Hughes, Women, Politics and Power: A Global Perspective (CQ Press, 2016)

[2] Jesse Howe, “For Saudi Women, Suffrage is Finally a Reality” (20 January 2016), online: <http://atlaslens.com/index.php/2016/01/20/how-saudi-arabia-became-the-last-country-on-earth-to-let-women-vote/>.

[3] Hala Aldosari, “Analysis: The value of women voting in Saudi Arabia” (13 December 2015), online: <http://www.aljazeera.com/news/2015/12/analysis-women-voting-saudi-arabia-151213055435453.html> [Aldosari].

[4] Jadaliyya Reports, “ Women Respond to Exclusion from Voting: Baladi Campaign” (16 May 2011), online: <http://www.jadaliyya.com/pages/index/1600/saudi-women-respond-to-exclusion-from-voting_balad>

[5] Ibid.

[6] Elizabeth Dickinson, “ A Long Road to Women’s Suffrage in Saudi Arabia” (4 November 2015), online: <http://foreignpolicy.com/2015/11/04/why-saudi-arabias-women-have-suffrage-in-name-only/>

[7] Ibid

[8] Aldosari, supra note 3.

[9] Ibid.

[10] BBC, “Saudi Arabia’s Women Vote in Election for First Time” (12 December 2015), online: <http://www.bbc.com/news/world-middle-east-35075702>.

Which Group in Canada Was Restricted from Voting Until 1960?

On Monday we discussed the disenfranchisement of Asian Canadians under the Electoral Franchise Act of 1885, and yesterday’s post introduced the history of First Nations groups as it relates to suffrage in Canada. In the case of Aboriginal peoples, it was the Indian Act which prevented First Nations, Inuit, and Métis people from voting. Under the Indian Act, Aboriginal groups were wards of the state rather than Canadian citizens.[1] The reserve land upon which many First Nations lived was vested in the Crown rather than being owned by First Nations individuals. Due to property ownership being a criteria for voting eligibility, First Nations peoples were excluded.

If an Aboriginal man wished to qualify for the vote, he needed to apply for “enfranchisement”. In the context of the Indian Act, enfranchisement means removal of one’s categorization as a “Status Indian”, and granting citizenship equal to that of a British subject.[2] An Aboriginal man who applied for enfranchisement had to abandon his reserve rights, and would receive an allotment of reserve lands which would be subject to taxation.[3] If the sacrifice of leaving one’s home and culture was not a steep enough price, enfranchisement was also “dependent upon proof of literacy, education, morality and solvency. Consequently, the requirements for enfranchisement constituted discriminatory conditions imposed on Indians, preventing them from qualifying for the right to vote.”[4] If an enfranchised Aboriginal male did not meet the land qualifications necessary to vote, and most did not, then he was still unable to vote. Further, at the provincial level, enfranchised Aboriginal people were unable to vote in most provinces due to discriminatory provincial legislation which barred anyone with “Indian blood” from voting.[5]

In 1885 when the Electoral Franchise Act was created, there was a divide as to whether Aboriginal Peoples should receive the vote. One argument against granting the vote to “Status Indians” was tax-based: those living on reserves did not pay tax and therefore were not entitled to certain citizen rights, including the vote.[6] Another argument made by the Opposition Members in legislative debates was that Prime Minister Macdonald’s government wished to give the vote to Aboriginal Peoples simply so that they would support his government.[7] This fear was supported by the historical tendency for groups to vote en bloc (meaning the entire group will vote together) upon first receiving the right to vote. These arguments and others, such as that those who were under the government’s care did not deserve the vote, carried the day. The Electoral Franchise Act excluded:

Indians in Manitoba, British Columbia, Keewatin and the North-West Territories, and any Indian on any reserve elsewhere in Canada who is not in possession and occupation of a separate and distinct tract of land in such reserve, and whose improvements on such separate tract are not of the value of at least one hundred and fifty dollars, and who is not otherwise possessed of the qualifications entitling him to be registered on the list of voters under this Act.[8]

As seen above, the Métis were never barred from voting, because the population did not have “Indian status”. Being of a mixed ancestry of First Nations and French-European descent, “the Métis in Manitoba exercised the right to vote as far back as 1873, when they voted to elect Louis Riel to Parliament.”[9]  

Unlike the fight for suffrage of immigrant populations and women, Aboriginal groups did not fight vigorously for the vote. In fact, there was opposition by First Nations peoples to the franchise because they already had systems of government in place, rendering the European-based government system redundant in their eyes.[10] Conforming to this new government system was a step towards assimilation which was not welcomed, especially in light of the fact that assimilation was already being forced upon Aboriginal groups in the spheres of education, work, culture and family.

In 1960 voting rights were finally extended to all Aboriginal groups at the federal level under the Act to Amend the Canada Elections Act.[11] This legislation was passed under the reign of Prime Minister Diefenbaker, who had long advocated for Aboriginal suffrage that did not forfeit Indian status.[12] Several provinces had already enfranchised Aboriginal groups provincially, but others were slow to follow. For example, in Alberta the provincial franchise was granted in 1965, and Quebec was the last province to do so in 1969.[13] However, “there were reports that Indians hesitated to exercise their right to vote for fear of weakening their claims to treaty rights and tax exemptions.”[14] Claims to treaty rights continue to this day in Canada, and the fear of exercising the right to vote is understandable in light of the overt discrimination in legislation which was in place only 56 years ago.

Aboriginal Peoples are still seeking recognition of their traditional systems of government, and the right to use them over the European-based system. Parliament has recently begun to acknowledge such traditional political institutions, but struggles to accommodate them into its own system.[15] The Aboriginal right to self-government reflects similar struggles for Aboriginal Peoples as those of suffragists in the fight for women’s enfranchisement 100 years ago.

[1] Heidi Bohaker & Franca Iacovetta, “Making Aboriginal People ‘Immigrants Too’: A Comparison of Citizenship Programs for Newcomers and Indigenous Peoples in Postwar Canada, 1940s–1960s” (2009) 90:3 Canada Historical Review 427 at 434 [Bohaker & Iacovetta]; The Indian Act, 1880, S.C. 1880, c. 28.

[2] Aboriginal People: History of Discriminatory Laws: http://publications.gc.ca/Collection-R/LoPBdP/BP/bp175-e.htm#(6)txt at s A [History of Discriminatory Laws].

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Bohaker & Iacovetta, supra note 1 at 454.

[7] Minister of Public Works and Government Services Canada. A History of the Vote in Canada  (Ottawa: Canadian Government Publishing, 1997) at 84 [A History of the Vote].

[8] The Electoral Franchise Act, SC 1885, c 40, ss 2, 11.

[9] A History of the Vote, supra note 7 at 85.

[10] Ibid at 84.

[11] History of Discriminatory Laws, supra note 2 at s A.

[12] A History of the Vote, supra note 7 at 86.

[13] History of Discriminatory Laws, supra note 2 at s A.

[14] Ibid.

[15] http://www.lop.parl.gc.ca/content/lop/researchpublications/962-e.htm.

Indigenous Women's Suffrage

    The women’s suffrage movement effected tremendous change in Canada, but unfortunately this change was not universal among all women’s groups. The majority of women’s suffrage groups focused on the right to vote for women of European descent and they did not initially insist on suffrage for Aboriginal women. In today’s post we will provide a background to the discrimination faced by Aboriginal women in Canadian law as a precursor to tomorrow’s post, which will explore the suffrage movement of Aboriginal women in Canada.

    The Indian Act (IA), among other pieces of legislation, repeatedly discriminated against Aboriginal women, and resulted in diminished rights for multiple generations of both Aboriginal men and women.[1] As part of the colonial policy aimed at the control and assimilation of Aboriginal Peoples, the Canadian government developed criteria to determine who would be legally defined as an Indian. Section 6 of the IA identifies who qualifies as a Status Indian, and not all Aboriginal persons are necessarily qualified. By separating Status Indians from Aboriginal people without status, the Canadian government attempted to monitor and control Aboriginal eligibility for treaty and reserve lands. The legal definition of Status Indian under the former Civilization Act of 1867 and the IA used patrilineal familial descent informed by European cultures.[2] The IA was revised in 1985 in an attempt to remove discrimination against women. However, it had to be amended again in 2011, as the 1985 amendments discriminated against newly reinstated Indian women by denying status to their descendants whose lineage had no other Indian status.[3]

    Prior to Confederation in 1867 and the introduction of the IA in 1876, Canadian legislation did not specifically discriminate against Aboriginal women as compared to Aboriginal men, but instead acted as a broad measure to identify and control populations of Aboriginal Peoples.[4] By labeling all Aboriginal men and women with the same legislative identity and entitlement, the government had not yet addressed the differences that would arise from reproductive partnerships between Aboriginal and non-Aboriginal persons. Therefore, when the offspring of mixed parents needed identification, the Canadian government set up patrilineal rules for distinctive identification. In 1869, the government introduced the first statute that discriminated against Aboriginal women, but maintained the rights of Aboriginal men.[5] Under the statute, when an Aboriginal woman married a non-Aboriginal man, the government revoked her and their children’s identities as Indians with legal status, and also revoked their entitlement to reserve rights and other benefits to livelihood.[6] In contrast, when an Aboriginal man married a non-Aboriginal woman, not only did he and their children retain Indian status, his non-Aboriginal wife also attained entitlement as a Status Indian. Further, children of unmarried parents were denied status and entitlement as a Status Indian.

    In 1951, the existing methods of assigning legal status to Indians was replaced by the introduction of an official register, which kept the patrilineal sex discrimination intact.[7] Concurrent with general Canadian women’s rights movements and the American civil rights movement in the 1960s and 1970s, Aboriginal women in Canada started campaigning for change.[8] Their efforts eventually led to the 1985 amendments to sex discrimination, which came under the auspices of the 1982 Canadian Charter of Rights and Freedoms. This led Aboriginal women to presume that their rights as Indians would be fully reinstated.[9]

    The 1985 IA reinstated all women who had lost Indian status as a result of marrying a non-status man, as well as that of children resulting from such unions.[10] However, the IA did this by stratifying the first and second generations of mixed-heritage unions. This stratification classified status under subsection 6(1) or 6(2) of the IA. A person registered under s 6(1) could pass status to his or her children even if the other parent was non-status, and these children would be registered under s 6(2). This second generation was the cut-off, meaning that their children would not be eligible for status if the other parent was non-status. As well, women who previously had their Indian status removed as a result of “marrying out” of their heritage or culture had their status retroactively reinstated in 1985. Nevertheless, the IA continued to discriminate against the same reinstated women because their children were registered under s 6(2), whereas children of Indian men in the same position were registered under s 6(1). The IA was revised again in 2011 to remove this discrimination, and ensure reinstated women and their children continued to receive the benefits of status.[11] Prior to the 2011 amendment, children born on or after September 4, 1951, to a woman whose status had been reinstated were automatically classified under s 6(2). However, since Aboriginal men did not need to reclaim their status, their children were automatically classified under s 6(1).[12] Finally, if two persons each with Indian status registered under s 6(2) have children, those children will be registered with Indian status under s 6(1).

    These and other provisions of the IA were built upon an official policy of assimilation and integration, with the intention of enforcing European legal customs.[13] In her seminal study on Aboriginal women’s rights, Janet Silman notes that many Aboriginal communities had matrilineal family structures that were overruled by European-based patrilineal family structures.[14] Just as non-Aboriginal women were considered inferior to European men and undeserving of the right to vote, so were Aboriginal women to Aboriginal men. Moreover, Aboriginal women who were denied status were often caught between two opposing identities. Although they were biologically or culturally Aboriginal, their legal status did not reflect that reality. Specifically, despite being of Aboriginal heritage, they were not entitled to certain treaty rights, such as residing on reserve lands among their communities. Finally, although Aboriginal women and men were eventually given the right to vote without giving up their treaty rights under the Act to amend the Canada Elections Act, as you will see in tomorrow’s post, this may not have been a priority for some Aboriginal women.[15]

[1] Indian Act, RSC 1985, c I-5 [Act]; Mary Hurley & Tonina Simeone, Legislative Summary of Bill C-3: Gender Equity in Indian Registration Act (Ottawa: Library of Parliament, 2010) [Hurley].

[2] Hurley; Lynn Gehl, Canada’s court system: A hostile place for Indigenous people (Toronto: rabble.ca, 2012) [Gehl 2012].

[3] Hurley, supra note 1; Gehl 2012, supra note 2.

[4] Hurley, supra note 1; Gehl 2012, supra note 2.

[5] An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, chapter 42, SC 1869, c 6, 32–33 Vict, s 6, cited in Hurley, supra note 1.

[6] Janet Silman, Enough is Enough: Indigenous Women Speak Out (Toronto: Canadian Scholars' Press and Women's Press, 1992) [Silman].

[7] Hurley, supra note 1.

[8] Ibid.

[9] Silman, supra note 6.

[10] Hurley, supra note 1.

[11] Gehl 2012, supra note 2.

[12] Lynn Gehl, “One little, two little, three little Indians… 45,000 more”,  Anishinabek News (North Bay: Union of Ontario Indians, April 2010) [Gehl 2010].

[13] Shauna Troniak, Addressing the Legacy of Residential Schools (Ottawa: Library of Parliament, 2011) [Troniak].

[14] Silman, supra note 6.

[15] Act to amend the Canada Elections Act, SC 1960, c 7.

Disenfranchisment of Asian Immigrants: Qualified to Die for Our Country but Not to Vote in It

2016 marks the centennial of women’s enfranchisement in Canada, but women were by no means the last marginalized group to receive the vote. Canada has a legacy of discriminatory legislation which was used to disenfranchise various groups that were perceived as a threat to European values. Today’s post discusses the disenfranchisement of several ethnic minorities, many of whom were not enfranchised until 1948. Tomorrow we will be discussing the traditional roles of Aboriginal women prior to European settlement, and on Wednesday, we will discuss the government legislation which restricted Aboriginal Peoples from voting until 1960.

When British Columbia joined Confederation in 1871, its Japanese citizens were not qualified to vote provincially.[1] Several years later, Chinese and First Nations peoples were also disenfranchised in British Columbia.[2] Incorrectly using the term “Hindus”, the province restricted voting of people of Indian origin who were not anglo-saxon, regardless of their religious affiliation.[3] The Military Voters Act, which gave male and female members of the Canadian armed forces the vote while abroad, consequently permitted British Columbian soldiers of Asian origin to vote. Despite this incidental federal enfranchisement, the British Columbian government decided against enfranchising these veterans following the war.[4] Although they were deemed worthy of laying down their lives for Canada, citizens of Asian origin were seen as a threat to ‘Canadianness’. British Columbia was the province which had the most restrictions on Asian suffrage, although Saskatchewan also prohibited Chinese immigrants from voting. The restrictions in British Columbia were likely rooted in the concern of losing European ideological dominance, given that people of European origin constituted less than one third of British Columbia’s population. In 1920, the federal government passed the Dominion Election Act, which held that individuals excluded from voting in their province on racial grounds would also be barred from voting federally.[5]

Further, Prime Minister John A Macdonald saw to it that the Electoral Franchise Act, which was passed in 1885 to govern the franchise, excluded “a person of Mongolian or Chinese race” from voting federally.[6] This exclusion was meant to ensure European dominance over the Chinese values which Mcdonald opposed. Although many Members of Parliament and the Senate, as well as his predecessor Prime Minister Alexander Mackenzie vehemently opposed defining “some classes of the human family [as] not fit to be residents of this Dominion”, the fear of losing control of the vote in British Columbia to the Chinese population carried the day.[7]

Like the quest for women’s suffrage, the success of ending racialized disenfranchisement was largely dependent on the beliefs of the politicians in power at the time. As some political members opposed ethnic-based government restrictions on voting, others sought to increase such restrictions. In 1936, when Japanese Canadians sought to be enfranchised, the response was not positive. One Member of Parliament “suggested that the whole affair was a plot to enable the Japanese government to plant spies in British Columbia.”[8] The situation for Japanese Canadians worsened in the advent of World War II. Alongside the tragedy of expulsions and the use of internment camps, the federal government denied the vote to Japanese peoples who relocated from British Columbia, even if the province they relocated to had not disqualified them from voting.[9] It was not until the close of WWII, when “the most virulently anti-Japanese MPs lost their seats to more moderate members”, that public opinion began to shift.[10] Racial discrimination in the franchise was finally removed in 1948.  

The common theme between the resistance to enfranchising Asian and other racial minority citizens, and enfranchising women, is that both threatened the status quo of a society explicitly ruled by white men. Although discriminatory voting qualifications are a relic of the past, they are less than seventy years behind us in the case of immigrants to Canada. The population which was excluded for a further decade, Canada’s First Nations, will be our focus for the next two days.  

 

[1] A History of the Vote in Canada: http://publications.gc.ca/collections/collection_2007/elections/SE3-36-2006E.pdf at 78.

[2] http://142.165.149.53/index.php/resource-centre/electoral-history-of-bc/#top.

[5] A History of the Vote in Canada, supra note 1 at 79.

[3] Ibid.

[4] Ibid.

[8] Ibid at 80.

[9] Ibid at 80.

[6] Timothy J Stanley, “John A Macdonald and the Invention of White Supremacy in Canada” (Fall 2014) Canadian Issues 29 at 30.

[7] Ibid.

[10] A History of the Vote in Canada, supra note 1 at 81.

What the Jian Ghomeshi Trial Says About Our Society and the Progress Still Needed

Next month Justice Horkins will deliver his decision as to whether Jian Ghomeshi has been proven guilty beyond a reasonable doubt of four counts of sexual assault as well as one count of overcoming resistance by choking. This trial dealt with allegations made by three complainants, and another trial is scheduled later this year to address allegations made by other women. Media discourse on the trial demonstrated that when an accused person is tried for sexual assault, society places the sexual assault victims on trial as well.

The witnesses in the Ghomeshi trial have been disbelieved for not fitting into the box which society has defined for victims. The women did not describe the event as one which involved tears and attempts to fight off their alleged attacker. They did not flee from the scene of the crime and run straight to police. They did not faint at the thought of having to encounter their attacker again; in fact, all complainants reached out to Ghomeshi after the alleged sexual assaults. Upon hearing this inconceivable post-incident conduct, many concluded that Ghomeshi was falsely accused, because it makes no sense for a victim to behave in any other way than a damsel in distress.

A common thread between the three complainants who testified is that they each tried to normalize the assault immediately after it had happened. Witness 1 wondered if the first time he pulled her hair was intentional, as she had just finished an enjoyable date with Ghomeshi who had been charming and charismatic. The second woman, Lucy DeCoutere, “didn’t want to be rude” after Ghomeshi pulled her hair and slapped her, so she continued the evening activities with him, and saw him on several more occasions.[1] She did not report what had occurred because “I always thought assault meant you were beaten to pieces. I didn’t think this qualified.”[2] Finally, witness 3 continued the trend of blaming herself for seeing Ghomeshi after the alleged assault against her. She stated that the incident was out of character for him, and that she typically gives people second, third, and fourth chances.[3] Like DeCoutere, witness 3 did not know that the incident would count as sexual assault or that there was any criminal act against which to press charges.[4]

Marie Henein, defence counsel for Ghomeshi, used witness 1’s post-attack correspondence with Ghomeshi to destroy her credibility. This is an understandable legal tactic because witness 1 falsely stated in her evidence that she did not communicate with Ghomeshi after the assault.[5] However, DeCoutere made no such statement, so why were her emails and letters to Ghomeshi displayed and read to the Court? The correspondence revealed that DeCoutere sought Ghomeshi out after the alleged offence and that she tried to initiate sexual contact the following day. Despite DeCoutere’s explanation of trying to normalize what had occurred, and that at the time she felt that “I put myself in this place”, Henein’s cross-examination had the effect of turning many into disbelievers of DeCoutere’s evidence.[6] If this post-offence conduct were not enough to cast doubt on DeCoutere, Henein continued by highlighting DeCoutere’s humorous tweets and interviews on the subject of her alleged assault. Henein suggested that the assault never occurred, which is odd, given that she did not draw out any evidence to contradict DeCoutere’s version of the events in question.[7]

DeCoutere explained in court that just like an intimate relationship where a person still loves the person who physically abuses them, or stays in an abusive relationship, sexual assault victims may respond in a variety of ways.[8] Continued contact, referencing the event in a joking way, or expressing excitement about testifying are examples of possible responses, and DeCoutere has been chastised for all of the above.

Witness 3 had her credibility questioned because she did not inform police that she went out with Ghomeshi subsequently, which involved further sexual contact. She explained that she did not think it was relevant and that it was also embarrassing. Why witness 3 left out the “embarrassing” fact that she later performed manual stimulation on Ghomeshi reflects what women are taught about sexual activity in our current society: sexual promiscuity is not ladylike behaviour. Perhaps it was the witness’s concern about being perceived as promiscuous that caused her nondisclosure to police, or perhaps it can be attributed to rape culture, wherein a victim is expected to flee an attacker and to know better than spending further time with the man who traumatized her.

Whether Jian Ghomeshi is legally innocent (committed the acts but cannot be proven beyond a reasonable doubt), factually innocent (did not commit the acts alleged), or found guilty of committing the assaults, it can be safely said that our society is guilty of perpetuating rape culture. This trial has demonstrated that the average citizen commenting on the witnesses’ behaviours has neglected to become informed on an issue which plagues our society and disproportionately victimizes women – sexual assault.

Here is a crash course on the elements of sexual assault: non-consensual + application of force (touching another person in a non-trivial, non-trifling way) or threat of force + violation of one’s sexual integrity = sexual assault.

Further requirements such as reporting immediately and giving the attacker the cold shoulder are not realistic for several reasons. One extremely troubling theme in the three victims’ testimony is that they felt ashamed of how they had acted after the assault, and that they did not know that the incident constituted sexual assault. In a country which does not include consent in educating youth on sexual assault, it is unreasonable to place requirements on victims to respond instantly and logically. When society shames female sexual promiscuity and ignores the prevalence of sexual assault, it is inappropriate to place the burden on victims to recognize the full spectrum of assaultive behaviour and to report embarrassing incidents candidly and objectively.

The lesson to be taken from the Ghomeshi trial is that 100 years after women’s enfranchisement, we must continue to fight for equality. We must fight to remove gendered stereotypes of appropriate sexual behaviour, and a pivotal step in this direction is education. Ontario is the first province to introduce consent into their new sex-education curriculum for adolescents, which was implemented this year.[9] All 61 school boards of Alberta approve of introducing consent into the curriculum, and hope that the Alberta government will implement mandatory instruction.[10] Until education is delivered to youth, boys and girls will continue to receive inaccurate information from media and their peers, which further perpetuates harmful gendered stereotypes about sexual activity and sexual assault. As a result, victims will likely wonder what they did wrong to encourage the assault, and will refrain from sharing their experience for fear of how they will be perceived. Eliminating rape culture is the battle of this generation, similar to the fight for suffrage 100 years ago. Education is a promising step to this end.   

 

[1]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[2]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[3]http://www.macleans.ca/news/ghomeshi-day-5-a-jenga-tower-implosion/

[4]http://www.macleans.ca/news/ghomeshi-day-5-a-jenga-tower-implosion/

[5]http://www.macleans.ca/news/ghomeshi-day-2-an-email-bombshell-and-sidestepping-consent/

[6]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[8]http://www.macleans.ca/news/canada/ghomeshi-day-4-real-conversation-or-distracting-chatter/

[7]http://www.macleans.ca/news/canada/ghomeshi-day-4-real-conversation-or-distracting-chatter/

[9]https://www.ontario.ca/page/sex-education-ontario

[10]http://www.cbc.ca/news/canada/edmonton/alberta-school-boards-want-consent-added-to-sex-education-curriculum-1.3324110

He Said / She Said: Voting, Voicing, and Testifying

Studying the history of the women’s suffrage movement reveals many social factors that affected and continue to affect Canada’s legal system. As readers of the Ms. Suffragette blog are aware, 2016 celebrates one hundred years of women’s voting rights in Canada. Significant progress in this area has been made over the last century, as women and men now represent approximately equal numbers of voters [1].

By enacting voting rights for women, Canadian society recognized that women and men had equal voices in the political sphere. The ability to express one’s voice in a political forum reflects the fundamental right to express one’s personal opinions on important, public matters.Therefore, the right to vote is tied to the core of personhood. However, it is essential that equality between men and women extends outside the political sphere. Just as women are considered equal to men politically, they must also be considered equal to men individually, in social situations, and under the law.

In Canadian courts, the evidentiary testimony of a witness is presented through viva voce evidence, which is the legal term referring to oral testimony in court. In the search for the truth, a witness’s factual views on an event can be compared to another’s understanding of the same event. This comparison of views often occurs in the context of sexual assault trials. A complainant of sexual assault can relay the events as he or she views them, and the accused can also testify as to his or her version of the events in question. Courts are sometimes presented with a diametrically opposed, he-said/she-said version of events. In assessing the truth, the court will consider the credibility of the witnesses. In the Canadian legal system, the testimony of women and men is assessed equally, irrespective of their gender [2]. However, in countries that include Islamic Shari’a law in their legal systems, a woman's testimony is not accorded equal weight to a man’s testimony. For example, in countries such as Bahrain, Jordan, Kuwait, Lebanon, Saudi Arabia, Syria, and the United Arab Emirates, women are not perceived to be as credible as men in regards to their testimony [3].

Further, sexual violence tends to be perpetrated by men upon women, and this gender-based trend is fairly uniform globally [4]. In legal systems where women are viewed as having equal voices to men, victims of sexual violence may have better access to justice, and perpetrators are more likely to be reprimanded or rehabilitated. However, in countries that incorporate Shari’a law into their legal systems, victims have less opportunities to have their voice heard under the law. As women are more likely to be victims and as men are more likely to be perpetrators, women have less chances to effect retribution against male perpetrators.

In traditional Shari’a religious courts “the testimony of two women is required to match the value of one man’s testimony” [5]. In Jordan, for example, a woman who applies for a divorce on the basis of domestic violence must provide the court with “two male witnesses” because her own evidence is insufficient [6]. Lebanon, Kuwait, and Syria have civil and criminal court systems for most claims and offences. However, the systems are supplemented with a Shari’a court system [7]. The Shari’a courts, where a woman’s testimony is worth only half of a man’s testimony, prosecute moral crimes. Moral crimes in these religious courts include adultery, marital rape, and “honor” [sic] crimes. An example of a potential honour crime is “the murder or beating of [a woman] for alleged sexual misconduct” [8].

Due to international pressure, especially from the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), many countries have moved away from purely Shari’a-based legal systems in order to increase the legal and political rights of women [9]. Bahrain ratified CEDAW in 2002, but with reservations concerning “family law, equality, freedom of movement, and residence” [10]. Generally, women in Bahrain are equal to men in the legal courts, but Shari’a courts still “state that a valid witness should be two men, or two women and one man” [11]. Egypt ratified much of CEDAW in 1981, and a woman’s testimony is legally equal to that of a man [12]. However, conservative power structures still make access to justice difficult for women when bringing assault claims to the courts [13]. The United Arab Emirates ratified many of the CEDAW Articles in 2004, but retain “precepts of Shari’a regarding [certain traditional] rights” [14]. For example, despite Dubai’s international appeal, in the absence of a confession to sexual assault, four adult male witnesses must supplement a female complainant’s testimony in order for a court to proceed with a conviction [15].

In Canada’s legal system, a woman’s voice is equal to that of a man in regards to court testimony. However, female complainants of sexual assault still face a stigma that is not attributed to complainants of non-sexual violence. Since sexual violence is a gender-based phenomenon, women are often disproportionately affected and negatively treated when they allege that they were sexually assaulted. The highly-publicized Jian Ghomeshi sexual assault trial was completed last week, and the judgment will be released on March 24th. Check back tomorrow for Ms. Suffragette’s analysis of the treatment of the female complainants and why the history of women’s positions in society is so important to the study of law.

 

[1] “Estimation of Voter Turnout by Age Group and Gender at the 2011 Federal General Election” (17 February 2016), online: <http://www.elections.ca/content.aspx?section=res&dir=rec/part/estim/41ge&document=report41&lang=e>.

[2] Sameena Nazir & Leigh Tomppert, Women's Rights in the Middle East and North Africa: Citizenship and Justice (New York: Rowman & Littlefield Publishers, 2005) [Nazir].

[3] Ibid.

[4] “The Facts: Gender Inequality and Violence Against Women and Girls Around the World” (17 February 2016), online: <http://www.advocatesforyouth.org/publications/publications-a-z/1556-the-facts-gender-inequality-and-violence-against-women-and-girls-around-the-world>.

[5] Nizar, supra note 2 at 44.

[6] Ibid at 114.

[7] Ibid at 44, 128, 278.

[8] Ibid at 278.

[9] Ibid at 54.

[10] Ibid at 52, 54.

[11] Ibid at 53.

[12] Ibid at 73.

[13] Ibid at 71.

[14] Ibid at 317.

[15] “Dubai sentences Norwegian woman who reported rape” (17 February 2016), online: <http://www.bbc.com/news/world-middle-east-23381448>.

“Pyrotechnic” Eloquence: Maritime Provinces Part II [1]

"For years we agitated gently," but it was "surprising to find otherwise delightful people fly into terrific rages and order us out of their offices, when they learnt what our mission was" [2].

Today we continue the discussion on the suffrage movement in the Maritime provinces. In addition to the challenges that the “weight of indifference” presented, conservative opposition among the provinces’ legislatures delayed the vote for women, especially in Prince Edward Island, as well as Newfoundland and Labrador. Nova Scotia and New Brunswick enfranchised women in 1918 and 1919, respectively. Women in Prince Edward Island, along with Newfoundland and Labrador, waited until 1922 and 1925.

The Nova Scotia Attorney-General, Honourable J.W. Longley, was the province’s most vocal opponent to women’s suffrage. His “force and eloquence” were “a brilliant pyrotechnic display” of his views on women’s traditional roles [3]. During one legislative debate, Longley argued that voting would interfere with women’s four roles:

[F]irst, the bearing and bringing up of children, and this is the highest. Second, the creating of home and the beautifying of home life…. Third, to charm men and make the world pleasant, sweet and agreeable to live in. Fourth to be kindly and loving, to be sweet and to be cherished, to be weak and confiding, to be protected and to be the object of man’s devotion. [4]

Therefore, in the years prior to enfranchisement it was thought that a woman’s main purpose was to serve her husband, and her political opinion would be superfluous to that of his. In many regions, unmarried women were initially able to vote, only to lose that power upon marriage [5].

Voting rights for women were achieved in the Maritimes not because lawmakers considered women to be equal or to be deserving, but rather, they were able to “earn” the right to vote by helping the men in the war effort between 1914 and 1918 [6]. Many male supporters of women’s suffrage, such as politicians and news editors, helped appeal to the legislature to give women the vote in order to repay them for their wartime work.

As in most of Canada, Maritime women’s voting rights were granted before the Persons Case and before modern ideals of equality between the sexes developed. During a time when some men did not consider women to be equal citizens, radical liberals presented a strong opposition by maintaining that women had worked hard, just like men, and for men’s benefit, and therefore should be reimbursed with greater political rights [7]. The appeal to equality between the sexes was not as persuasive as it is today, and some men loudly voiced their disdain.

The Nova Scotia General Assembly finally acceded to calls for women’s suffrage in 1918. Catherine Cleverdon, in her seminal study “The Woman Suffrage Movement in Canada”, describes the movement as “sporadic” and as a “by-product” of the Women’s Christian Temperance Union’s campaign for prohibition [8]. This is not surprising given the “customary link between prohibition and equal franchise”, as legislators who were opposed to prohibition tended to oppose women’s suffrage as well [9].

New Brunswick, who had separated from Nova Scotia in 1784, granted women the vote in 1919, just a year after Nova Scotia. New Brunswick has been compared to “a younger sister who often patterns her actions after those of an older member of the family, [and] frequently looked for guidance to the senior province lying eastward” [10]. The women’s suffrage movement in New Brunswick struggled less than its counterpart in Nova Scotia for several reasons. First, the general apathy toward women’s suffrage was less of a “dead weight” than that of Nova Scotia’s because the New Brunswick legislature looked to progress in Nova Scotia with admiration. Second, New Brunswick women benefitted from more petitions and frequent delegations to the legislature, indicating that a significant number of women sought voting rights. Third, the Saint John Daily Telegraph provided public, male support for the suffrage movement. And fourth, the Enfranchisement Association in Saint John, New Brunswick, had a stronger public recognition than the same organization did in Nova Scotia. This was partially due to the fact that the women’s suffrage movement had finally gained better publicity by extending past western and central Canada to the conservative stronghold of the Maritimes [11].

Prince Edward Island’s geographic isolation and small population “built up a complete immunity to outside suffrage influences and was well content that no native variety of feminism root in its soil” [12]. The Prince Edward Island press reported on suffrage issues including women’s federal enfranchisement, voting rights’ correlation with educational enrichment, and the public benefit to gaining women’s “advice on matters pertaining to health, morals, and the home” [13]. Thus, although the newspapers brought attention to suffrage in Prince Edward Island, women continued to be siloed into customary roles. In 1919, the legislature promised that it would consider granting women the right to vote by 1922. Despite much opposition and rhetoric about women’s traditional roles in the home, the debt owed to women’s work during the war convinced conservative opponents to grant women the right to vote.

Finally, in 1925 Canada’s oldest colony, Newfoundland and Labrador, followed the other three Maritime provinces and granted women the right to vote. The active campaign in Newfoundland and Labrador lasted thirty-five years, starting with the formation of the Women’s Christian Temperance Union in 1890 [14]. Conservative male attitudes resisted the campaigns for suffrage partially because they were coupled with prohibition campaigns. Temperance suffragists found a correlation between alcohol, domestic violence, and women’s lack of political rights, making prohibition a natural co-campaign. Likewise, women’s suffrage was a natural co-campaign for many clergymen [15]. Many conservative men in positions of power contested the increase of women’s liberty which was coupled with a restriction on men’s freedom. After granting women the right to vote in municipal elections in 1921, the provincial legislature finally granted full voting rights to women in 1925.

The four Maritime provinces had long been considered more conservative than Ontario and the provinces to the west. At the same time, the low numbers of women actively involved in the suffrage movement exhibited an air of indifference toward attaining the right to vote. Politicians used this perception of indifference and the Victorian views on traditional gender roles to delay granting women full voting rights. Nova Scotia and New Brunswick, with their stronger ties to the rest of Canada, granted women voting rights sooner. Prince Edward Island along with  Newfoundland and Labrador retained their isolated, conservative cultures until the 1920s.

Political rights for women relate not only to a voice on a ballot. Political equality translates into being treated equal on an individual level. Stay tuned tomorrow and Friday for discussions on how women’s voting rights affect women’s personal lives under the law!

[1] Catherine L Cleverdon, The Woman Suffrage Movement in Canada (Toronto: The University of Toronto Press, 1974) at 161 [Cleverdon].

[2] Ibid at 211.

[3] Ibid at 161.

[4] Ibid.

[5] Ibid.

[6] Ibid at 169, 170, 176, 193, 206.

[7] Ibid.

[8] Ibid at 158-159

[9] Ibid at 159.

[10] Ibid at 178.

[11] Ibid at 156.

[12] Ibid at 198.

[13] Ibid at 206.

[14] “Women’s Suffrage”, Heritage Newfoundland and Labrador (16 February 2016), online: <http://www.heritage.nf.ca/articles/politics/women-suffrage.php>.

[15] Cleverdon, supra note 1 at 210.

The “Weight of Indifference”: Maritime Provinces Part I [1]

“If there’s one thing [my husband] can do alone, for goodness’ sake, let him do it!” [2]

This “why bother” attitude illustrates the indifference in a region that was long considered a “stronghold of conservatism” among the Canadian provinces [3]. The uphill battle for women’s suffrage against conservative, Victorian-era attitudes is understandable. That said, when suffragists met strong opposition west of the Maritime provinces, they gained publicity and support. The suffrage movement in the Maritimes faced greater struggles due to the general apathy in both men and women in the late 19th century, despite concerted efforts by suffragists [4]. Today’s post discusses indifference as a barrier to suffrage in the Maritime provinces. Check back tomorrow for “Pyrotechnic Eloquence”, which discusses conservative Maritime attitudes that opposed suffrage [5].

In her detailed and heralded study, The Woman Suffrage Movement in Canada, Catherine Cleverdon cites several theories for the “weight of indifference” to women’s political rights in the Maritimes [6]. One theory is that the “leaders of all organized work among women in those days were all women of outstanding intelligence and social leaders. It was never in any true sense ‘a popular movement’” [7]. Therefore, although pro-suffrage groups repeatedly presented signed petitions to legislators, their attempts failed to represent enough of the population for the legislators to be swayed. Politicians simply contended that not enough women wanted the vote, so they saw no reason to grant it [8].

A second theory relates to the Maritime provinces’ isolation from the rest of Canada and the United States. Conservatives in the Maritimes felt no need to follow the same course as the more radical, large provinces to the west. As well, although many prominent British suffragists visited the Dominion of Canada to rally support, they “generally by-passed the east coast [even though they travelled all the way to] Victoria, on the other side of the continent” [9].

Third, New Brunswick tended to follow in the footsteps of Nova Scotia’s political and legal culture. Nova Scotia and New Brunswick delayed enfranchising women until after the First World War, even though both provinces were aware of recent changes in voting rights in the rest of Canada. Moreover, Prince Edward Island and Newfoundland and Labrador exhibited further conservatism as a result of geographic isolation [10].

Fourth, in many Maritime municipalities women were granted the right to hold office in local school councils long before the right to vote. Many legislators considered this to be a sufficient concession for women’s political equality. Governments viewed it as a right granted to women, but it was also based upon, and further reinforced, a traditional gender stereotype - that women know what is best for childhood education [11].

A fifth theory is rooted in the fact that although women had been entitled to vote and hold office until the mid-1800s, there is virtually no record that any women took advantage of it [12]. From Nova Scotia’s first General Assembly in 1758 until 1851, and from New Brunswick’s first council in 1784 until 1848, the respective provincial statutes did not expressly restrict voting rights to men [13]. In both cases, the legislation “had been so worded as to make it appear that women had both the rights of voting and office-holding” [14]. This was yet another reason for lawmakers to avoid giving women express voting rights, as they claimed that there was no need for it.

When looking back at the history of any suffrage movement, it is easy to imagine that ultra-conservative attitudes presented a major barrier to those vying for progress. However, the history of women’s suffrage in the Canadian Maritime provinces demonstrates that the “weight of indifference” can be just as difficult to push through.

Check back tomorrow for “Pyrotechnic Eloquence” which discusses conservative attitudes during the women’s suffrage movement, as well as which year each Maritime province granted women voting rights.

 

[1] Catherine L Cleverdon, The Woman Suffrage Movement in Canada (Toronto: The University of Toronto Press, 1974) at 156 [Cleverdon].

[2] Ibid, at 157.

[3] Ibid, at 156.

[4] Ibid, at 157, 180.

[5] “Women’s Right to Vote in Canada” (15 February 2016), online:<http://www.lop.parl.gc.ca/ParlInfo/Compilations/ProvinceTerritory/ ProvincialWomenRightToVote.aspx>.

[6] Cleverdon, supra note 1 at 161.

[7] Ibid, at 157.

[8] Ibid, at 181, 186.

[9] Ibid, at 158.

[10] Ibid.

[11] Ibid.

[12] Ibid, at 178, n 58.

[13] Ibid, at 158, 178.

[14] Ibid, at 177.

Scalia RIP

US Supreme Court Justice Antonin Scalia is dead at 79.  My condolences to his family and loved ones. He will be missed by many. His death also presents President Obama with a chance to alter the Supreme Court for quite a while (depending on who wins the election and who else leaves). Till now there has been a 5-4 somewhat conservative bloc since the mid 80s. Now, this could shift. Watch for a possible filibuster. If the replacement goes through, watch many areas of the law to fundamentally change.

Justice Scalia spoke at the Center for Constitutional Studies' conference in Banff many years ago, which resulted in this book (edited by Tsvi Kahana and Richard Bauman). I then met him many years later a Federalist Society conference and he still remembered his trip here fondly. I was fortunate to have met him a few times and to be taught by at least one of his clerks. He was known for his sharp wit, amazingly written opinions, and a larger than life personality. He never shied away from answering questions and discussing the law  with anyone, including (what I can only imagine was my punkish-20 something self) me many years ago. I could go on, but I am sure there will be many many eulogies and memories shared by others.

Alas, everything in this life, like life itself, comes to an end. Goodbye, you will be missed.

The Women's Suffrage Movement in Switzerland

“Changing the situation was not possible without the vote of the women and the women didn’t have the vote” [1].

In any given country, the fight for women’s suffrage is greatly influenced by the electoral system, societal views and political climate. As the above quotation by a Swiss suffragette named Marthe Gosteli illustrates, Switzerland's unique electoral system significantly hindered the women’s suffrage movement at both a federal and cantonal level. Specifically, it was arguably the result of Switzerland’s use of principles of direct democracy that prevented women from gaining the right to vote at the federal level until 1971. Thus, while Switzerland is often regarded for having one of the “most advanced” systems of direct democracy [2], it was also “one of the last countries in the world to allow women to vote” [3]. Although this post will focus on the women’s suffrage movement in Switzerland, a brief explanation of its electoral system is also required.

While Switzerland’s political structure is similar to Canada’s in many respects, as it consists of 26 cantons that are “united under a national government”, it is also different in one significant way [4]. Specifically, in “Direct Democracy: What Legislative Role Can and Should National Direct Votes Play in Canada?”, University of Alberta Law Professor Barbara Billingsley explained that “while the national legislative power in Switzerland rests with a bicameral Federal Assembly (composed of a National Council and a Council of States), the constitution of Switzerland places ultimate power with the people through frequent access to the referendum process, making Switzerland the ‘home of the referendum’. The Constitution of Switzerland relies on the principles of direct democracy for both constitutional change and ordinary legislation to a degree which is unrivaled by any other country” [5]. Thus, through the referendum process, Swiss citizens have the power to vote on constitutional changes and proposed legislation. An example of a referendum that will be held in June 2016 asks whether an unconditional income for all adult residents of Switzerland should be introduced [6].

The women’s suffrage movement in Switzerland can be traced back to the mid-19th century. Swiss Suffragette Marie Goegg-Pouchoulin founded the Association Internationale des Femmes in 1868, which was the first women’s organization in Switzerland and also the first international women’s organization [7]. It quickly dissolved in 1871 because the organization’s goals of “full legal, economic and educational equality… [were] not shared by women steeped in bourgeois ideology” [8]. However, many other women’s organizations subsequently formed, and in 1893 the Swiss Female Workers’ Association demanded that women be granted the right to vote [9]. However, despite these early efforts of Swiss suffragettes, no significant advancements were made.

A national referendum held on February 1, 1959, asking whether women should be granted the right to vote failed, with 67% voting “no” [10]. By this time a few cantons had granted women the right to vote, but enfranchisement was not achieved at the federal level until February 7, 1971 [11]. The reasons underlying why Switzerland granted suffrage much later than other countries was largely due to its use of the principles of direct democracy. In particular, in order for women to be granted the right to vote, there would need to be constitutional change via a national referendum. This was problematic because “the rights of Swiss women were at the mercy of those who could vote in such a referendum - that is, men” [12]. As well, due to Switzerland’s neutrality in both World Wars, women largely maintained their domestic roles [13]. In comparison, women in other countries such as Canada transcended their traditional gender roles as part of the war effort, which influenced the extension of voting rights to women.

The enfranchisement of women at the federal level on February 7, 1971, was a monumental moment in history, as “66 per cent of Swiss men voted in favour of allowing women to vote” [14]. Although Swiss women received the vote very late compared to other countries, it was the first country to grant women this right “as a result of a male-only vote” via a referendum [15]. However, the fight for women’s suffrage continued in Switzerland’s smallest canton, Appenzell Innerrhoden, until 1990. After men denied women the right to vote through referendums in 1973, 1982 and 1990, a legal action was brought to the Federal Supreme Court in Lausanne. On November 27, 1990, the Court agreed that the prohibition on women’s suffrage was unconstitutional and thereby granted women in Appenzell Innerrhoden the right to vote [16].

The history of the women’s suffrage movement in Switzerland, at both the federal and cantonal level, demonstrates the unique and lasting struggles that Swiss suffragettes faced. As a result of Switzerland’s use of principles of direct democracy, women were at the mercy of male voters and had this additional hurdle to face in obtaining suffrage. Their goal was ultimately achieved in 1971 at the federal level, which was a huge accomplishment because for the first time, women were enfranchised by the men of their country via a referendum!

[1] Emma Gatten, “Swiss suffragettes were still fighting for the right to vote in 1971” (25 September 2015), online:<http://www.independent.co.uk/news/world/politics/swiss-suffragettes-were-still-fighting-for-the-right-to-vote-in-1971-10514445.html> [Gatten].

[2] Claudine Goncalves, “The Perfect system does not exist” (11 December 2015), online: <http://www.swissinfo.ch/eng/the-perfect-system-does-not-exist/41780896>.

[3] “Who is entitled to vote”, online: <https://www.ch.ch/en/voting-rights/> [Who is entitled to vote].

[4] Barbara A Billingsley, “Direct Democracy: What Legislative Role Can and Should National Direct Votes Play in Canada?”, Master of Laws Thesis (Edmonton: University of Alberta, 1995) at 23.

[5] Ibid, at 23-24.

[6] ”Swiss to vote on guaranteed income for all” (27 January 2016), online: <http://www.thelocal.ch/20160127/swiss-to-vote-on-guaranteed-income-for-all>.

[7] Gatten, supra note 1.

[8] Leo Schelbert, Historical Dictionary of Switzerland, 2nd ed (Lanham: Rowman & Littlefield, 2014) at 152.

[9] Susan Vogel-Misicka, “Swiss women celebrate 40 years of suffrage” (6 June 2011), online: <http://www.swissinfo.ch/eng/swiss-women-celebrate-40-years-of-suffrage/30401734> [Vogel-Misicka].

[10] “Switzerland’s Long Way to Women’s Right to Vote”, online: <http://history-switzerland.geschichte-schweiz.ch/chronology-womens-right-vote-switzerland.html>.

[11] Vogel-Misicka, supra note 9.

[12] Gatten, supra note 1.

[13] Ibid.

[14] Vogel-Misicka, supra note 9.

[15] “Inner Rhoden women celebrate 25 years of the vote” (27 November 2015), online: <http://www.swissinfo.ch/eng/women-s-suffrage_inner-rhoden-women-celebrate-25-years-of-the-vote/41802282>.

[16] Ibid.

The Suffrage Movement in Quebec

    Quebec, as always, has a unique and solitary history, and was the last province in Canada to achieve women’s suffrage. Despite the extension of federal franchise to women in 1918, and the Persons Case in 1929 which made women eligible to be members of the House of Commons and Senate, women in Quebec were not permitted to vote in their own province until 1940. Significantly, this late extension of provincial suffrage “had the future unfortunate result of making it practically impossible for the federal government to appoint any women of the province to the senate, to federal commissions, or to judicial positions”[1].

    Some women in the province voted as early as 1809, since the Constitutional Act of 1791 which governed the area defined votes only as “persons” [2]. But by 1827, there were objections to the validity of women’s votes, and the Elections Act in 1834 removed the right of any female to vote in any election within the province. The Elections Act of 1834 was disallowed for other (non-suffrage) grounds, yet the public opinion barred women from voting as effectively as any statute would have.[3].

    As women’s educational backgrounds improved in the late 1800s, so too did their demand for equality in politics and elsewhere. The Women’s Christian Temperance Union (WCTU) organized a branch in Montreal in 1883, and the Montreal Local Council of Women organized in 1893, in effort to improve the status of women [4]. Yet despite both group’s objections, the Schools Act was amended in 1899 to ban women from holding office as a school trustee. Fortunately, the right to vote in school elections was not stripped with the amendment, and at the same time, some women were permitted to vote in municipal elections; however, municipalities still had the right to choose to utilize an exclusively male electorate and ignore the votes of women in the area [5].

    The early 20th century in Quebec saw no legislative attempts to extend suffrage to women, despite the newly formed Montreal Suffrage Association’s (MSA) active petitions for women’s provincial and federal suffrage [6]. The MSA frequently distributed suffrage articles through the Herald and Daily Telegraph, in attempt to educate the general public about women’s issues and the necessity of women’s suffrage [7]. Yet, the province's population was approximately seven-eighths French, so the MSA, as an English-speaking organization, could not have a broad effect. Notwithstanding the passing of the federal An Act to confer the Electoral Franchise upon Women in 1918, a bill for provincial suffrage was not introduced in Quebec until 1927. Between that time, the MSA disbanded, and a group of both French and English women formed the Provincial Franchise Committee in 1922 [8]. The group was completely unsuccessful in its 1922 attempt to have a member sponsor a suffrage bill, but in 1927 the Marchand Bill was introduced, which sponsored women’s provincial franchise and, although defeated, opened the door for the 14 other suffrage bills that followed [9]. At the same time, several bills attempting to allow women to practice law in Quebec were rejected (until 1941), although women could attend law school in the province.

    The League for Women’s Rights in Quebec, headed by Thérèse Casgrain from 1929 to 1942, took up the suffrage cause, distributing leaflets, petitioning the government, and educating the public [10]. In 1938, Casgrain was invited to speak at the annual convention of the Women’s Institutes of Quebec, and was successful in convincing rural women to support women’s suffrage; yet urban support, and most significantly support in Montreal, was necessary to achieve full success [11]. After the 1939 provincial election, suffragists were hopeful that the new Liberal government would be supportive of electoral franchise. When then-Premier Godbout included women’s suffrage in his speech in the opening of the legislative session of 1940, the Roman Catholic Church in Quebec, among other groups, campaigned against the introduction of a new bill. The Church opposed suffrage for four main grounds: “that it would militate against family unity; that it would expose women to all the passions of elections; that the great majority of women in the province did not want it; and finally, that social and economic reforms could be as well achieved by women’s organizations operating outside the realm of politics”[12]. Premier Godbout refused to go back on his word, and introduced a dual suffrage and eligibility to hold office bill on April 9, 1940, which received royal assent on April 25, 1940.

Check back tomorrow for the exciting history of the country with the distinguished title of being the first to grant women's suffrage!

 

[1] Cleverdon, Catherine L & Ramsay Cook. The Woman Suffrage Movement in Canada, 2d ed (Toronto: University of Toronto Press, 1974) at 252 [Cleverdon].

[2] Cleverdon, page 214

[3] Cleverdon, page 216

[4] Cleverdon, page 218

[5] Cleverdon, page 219

[6] Cleverdon, pages 219-222

[7] Cleverdon, page 225

[8] Cleverdon, page 228

[9] Cleverdon, page 233

[10] Cleverdon, pages 246-252

[11] Cleverdon, page 254

[12] Cleverdon, page 257

 

The Zombies are Here!

Because good lawyers think of everything, Amazon's lawyers have now inserted a Zombie clause in their standard terms of service.  Clause 57.10 states:

57.10 Acceptable Use; Safety-Critical Systems. Your use of the Lumberyard Materials must comply with the AWS Acceptable Use Policy. The Lumberyard Materials are not intended for use with life-critical or safety-critical systems, such as use in operation of medical equipment, automated transportation systems, autonomous vehicles, aircraft or air traffic control, nuclear facilities, manned spacecraft, or military use in connection with live combat. However, this restriction will not apply in the event of the occurrence (certified by the United States Centers for Disease Control or successor body) of a widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.

Good work and very cool!

"We, the People"

    The United States has an extensive history of suffrage movements, not only for women but also for other disenfranchised groups. Each state has its own story, with some granting women full suffrage early on and others granting only limited forms of suffrage (such as presidential suffrage, which is the right to vote for electors who in turn vote for the president, and primary election suffrage, which is the right to vote in the primary election but not the general election). The United States Constitution begins with the phrase “We, the people”, yet the people this refers to has been a fickle concept throughout the country’s history [1].

    In the 1700s, prior to the Constitution, each (sovereign) state determined who had the right to vote – a right that was solely based on the possession of property. Women were capable of holding property, and thereby participated in elections in the first part of the century. However, in the latter part of the century, states began to base the right on gender and race, and subsequently removed women’s right to participate in the political process [2]. By 1790, 7 of the 14 states identified voters based on gender, and by 1855, 27 of the 31 states had a gender restriction on voting [3]. During this time, nearly every state held constitutional conventions to revise (or create) voting clauses, and the debates indicated that suffrage rights were defined in relation to acts of service to the state such as serving in the military, paying taxes, and working on road crews - which women often were not permitted to do[4]. Moreover, “as politics shifted to distinctly gendered spaces such as taverns, women’s political actions were interpreted as untimely, unwelcome intrusions from creates whose biological roles precluded logical political thought and action” [5].

    The United States Constitution, written in 1787, initially used gender-neutral language and maintained that each state had the right to determine its voting class. It was not until 1866 that the language of the Constitution was changed to refer to “male” in section 2 of the Fourteenth Amendment, and thereby implicitly indicated that women were not considered legitimate voters [6]. When the Fifteenth Amendment was ratified in 1870, explicitly prohibiting voting discrimination based on race or colour, gender was not identified as a parallel right. African American suffrage and women’s suffrage, though both working towards the same freedom, were often a dichotomy. African American activists would argue that, as men, they too deserved the right to vote, yet women suffragists argued that men and women are created equal [7]. The two major women’s suffrage groups at the time were also split in their techniques. The National American Woman Suffrage Association became known as a confrontational group, and the American Woman Suffrage Association was a Republican-based group focused on state by state enfranchisement.

    Similar to Canada, at the onset of the 20th century, women pursued higher education and entered the workforce in unprecedented numbers [8]. Suffragists recognized that in order to affect change in areas such as working conditions and social problems, obtaining enfranchisement was a necessity. In both Canada and the United States, western women share the distinction of having first won the vote, with 9 states west of the Mississippi river enfranchising women by 1913 [9]. This achievement in the west is often attributed to the notion that conditions of pioneering made those societies more progressive [10].

    Further, “the passage of the 19th Amendment in 1920, which secured the right to vote for American women, can be directly linked to the White House pickets” orchestrated by Alice Paul [11]. Paul launched the National Women’s Party in 1916, and focused her attention on gaining President Woodrow Wilson’s sponsorship of women’s suffrage, as she believed that the President could “compel his party, which controlled both the Senate and the House in 1917, to pass a suffrage amendment” [12]. While Woodrow initially ignored the picketers, also known as the Silent Sentinels, after war was declared and the Espionage Act was passed to penalize political dissenters, picketers were routinely arrested. While imprisoned, the Silent Sentinels were subject to physical abuse and rancid food. In response, the suffrage prisoners began a hunger strike, eventually leading Wilson to respond by ordering all of the prisoners to be released. Soon after, Wilson declared his support for a federal suffrage amendment, at a time when half of the states already permitted women to vote [13]. The process was also hastened by “women’s contributions to the war effort, including working in factories, running farms, serving overseas as nurses and ambulance drivers” [14]. The 19th Amendment was ratified on August 26, 1920, a day now deemed as Women’s Equality Day across America.

    See below for a copy of the 19th Amendment, and check back tomorrow for the history of a province that is often viewed as its own independent state, and has a markedly different suffrage timeline than the rest of Canada!

 

[1] Laura E Free, Suffrage Reconstructed: Gender, Race, and voting rights in the Civil War Era (Cornell University Press: Ithaca and London), 2015 at 1 [Free]

[2] Free, page 3

[3] Free, page 10

[4] Free, page 11

[5] Free, page 15

[6] Free, pages 1-2

[7] Free, page 35

[8] JD Zahniser, “How Long Must We Wait”, (2015) 50:5 American History Periodical 51 at 54 [How Long]

[9] How Long, page 55

[10] Tracy Kulba & Victoria Lamont, “The Periodical Press and Western Women’s Suffrage Movements in Canada and the United States: A Comparative Study, (2006) 29:3 Women’s Studies International Forum 265

[11] How Long, page 53

[12] How Long, page 57

[13] How Long, page 58

[14] How Long, page 59

[15] Joint Resolution of Congress proposing a constitutional amendment extending the right of suffrage to women, May 19, 1919; Ratified Amendments, 1795-1992; General Records of the United States Government; Record Group 11; National Archives. www.archives.gov

Interview with Len & Suzy Rodness

We recently had the privilege of interviewing Len and Suzy Rodness, the Co-Chairs of Magna Carta Canada, on the relevance of Magna Carta to the women’s suffrage movement and women’s rights generally. As well, we would like to take this opportunity to thank Mr. and Mrs. Rodness for their support of both our Ms. Suffragette and Ms. Magna Carta projects. We are so grateful to have had the opportunity to work with them over the last year, and are excited to share our interview below.

 

1. What was the significance of Magna Carta in regards to the development of women’s rights? How was it an impetus for the further recognition of women’s rights, including the right to vote?

To answer this question, we need to understand the context of life in the 13th century in England. Women’s rights as we understand them today did not exist. Women had a narrowly defined role in society and in the home, and little thought was given to “rights” that they may or may not have. Kings were always looking for ways to augment their treasuries to fund defence of the realm, or aggressive pursuit of new territories. One method of raising revenue was to sell to the highest bidder the hand in marriage of a widowed noblewoman. This was a serious concern for women, as obviously no one wanted to be auctioned off to a stranger. However, it was also a concern for noblemen, who feared a stranger coming into their home to potentially disrupt or usurp the inheritance intended for their children. While this practice had been disavowed by prior kings, the Plantagenet kings resurrected it. By including in Magna Carta the prohibition of this practice, coupled with the guarantee that a noblewoman must receive her inheritance before she had to vacate the ancestral home, these rights were enshrined in a way that ensured the king was subject to them. The king could not thereafter simply ignore these rights on a whim when the need arose.

This was the first step on a long and arduous journey towards enhanced and guaranteed recognition of women’s rights, but a very important one given the impact of the king expressly agreeing that he would be subject to the rule of law. This set the stage for the gradual expansion of women’s rights over the ensuing centuries.

 

2. What significance can be drawn from the fact that Magna Carta primarily recognized the rights of noble women?

We have to remember that noblemen imposed the terms of Magna Carta on King John. Of course, it then stands to reason that they would be most concerned with addressing the rights of noblewomen. For the most part, Magna Carta was primarily focused on the rights of noblemen. In fact, it took almost four centuries for the rights afforded in Magna Carta to extend to all men. So the fact that the provisions which applied to women only applied to noblewomen is not surprising. You have to start somewhere!

 

3. What clause of Magna Carta do you think afforded the most protection to women?

Clause 7 of the 1215 engrossment of Magna Carta provided that a widowed woman must receive her dower (which was her portion of her inheritance from her husband) before she had to leave her ancestral home, and that she had the right to stay in the home for at least 40 days. These were important rights for women’s security and safety. While the provisions set out in Clause 8, that a widow not be forced to marry someone who paid the king for the right to do so, is important, it is important to remember that it was as much about the preservation of inheritance for noblemen as it was about protecting the rights of women.

 

4. Was Magna Carta really an important step along the road to contemporary women’s rights in Canada, or is its importance exaggerated?

We would argue that it is an important initial step along that road, for two main reasons. First, the inclusion of women’s rights in Magna Carta set the stage for future charters, laws, declarations and constitutions. If women’s rights were important enough to be recognized in Magna Carta, there could be no justification for ignoring them when formulating and negotiating future rights and laws.

Second, Magna Carta stands for the principle that “no one is above the law”, or, expressed another way, the rule of law is supreme. By ensuring that even the highest ruler in the land was subject to the law, the platform from which contemporary women’s rights would evolve was set. The principle was established that the king could no longer, on a whim, do whatever suited him at the moment, regardless of whether it was lawful. With laws ultimately being established by the will of the people, and with the rulers being subject to those laws, the rights and freedoms of the people were able to be advanced.

For a more scholarly consideration of this issue, we direct you to the wonderful essay by Dr. Carolyn Harris about the importance of Magna Carta in connection with women’s rights, to be found on the Magna Carta Canada website at www.magnacartacanada.ca/women-and-magna-carta.

The Energy East Climate Test

How should the federal government evaluate the Energy East pipeline project? What is the appropriate test, both in terms of the science of climate change mitigation and our international environmental law commitments? Check out my recent op-ed in the Toronto Star here.

Assault is Assault is Assault: Critiquing "Return of Kings" with Canadian Jurisprudence

Recently, social media and organized media sensationalized a story about a man who rallied support for contentious anti-feminist views on his website [1]. These views, apparently gaining support around the world, suggest that when sexual assault occurs on private property, it should be exempt from criminal law [2]. Moreover, the website argues that women should not have the right to vote, stating that "women have no business voting in elections for public office… this may seem like a quixotic idea. But remember - so was women's suffrage, once" [3].

This provides a timely opportunity to remind ourselves why celebrating women's suffrage is relevant 100 years later. The principles underlying women's suffrage include the recognition that a woman has a voice to be counted equally to the vote of a man, as well as that women and men deserve equal protection under the law.  

The Return of Kings rhetoric provides ample opportunity for criticism within the framework of Canadian case law. The case law has evolved from society's views on personal boundaries [4]. In a broad-sweeping nutshell, the Return of Kings web site has published views that suggest heterosexual men are strong, virile, and entitled: sexual assault should be legal once a woman steps onto private property [5]. Perhaps subscribers of this theory forget that all assault is illegal on private property.  

The problem with this opinion is that it views sexual activity in a vacuum and pretends that women are sexual/procreating beings rather than persons with individual voices. For clarity's sake, let's leave aside the general attack on femininity and the personal fear this would invoke if, in some obscure regression of Canada's laws, this hateful and discriminatory concept actually became a reality [6].  

First and foremost, it's pretty clear that the law is not going backward with respect to autonomy of the person and equality among persons. Even when we take away the sexual nature, assault is still assault. In the words of Supreme Court of Canada Justice L'Heureux-Dube in the landmark 1998 sexual assault case from Edmonton, R v Ewanchuk [7]:

Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the [Criminal Code of Canada] expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle....  It follows that any intentional but unwanted touching is criminal.  

Assault is defined and prohibited pursuant to section 265(1) of the Criminal Code of Canada: "a person commits an assault when … without the consent of another person, he [or she] applies force intentionally to that other person, directly or indirectly" [8]. As noted in Ewanchuk above, the threshold for applying force is low: "intentional but unwanted touching" [9]. This ensures that the person being touched has complete physical control over his or her person.  

Moreover, intentional but unwanted touching can also be actionable in civil law, under the tort of battery, where a complainant can sue a transgressor for monetary damages. For example, when battery is imposed in a medical context, it becomes medical battery. When it is of a sexual nature, it becomes sexual battery. Supreme Court of Canada Chief Justice McLachlin concluded in the landmark 2000 case that [10]:

There is no justification in cases of battery of a sexual nature for departing from the traditional rule that the plaintiff in a battery action must prove direct contact, at which point the onus shifts to the defendant to prove consent. To do so would be to place a burden upon plaintiffs in battery actions of a sexual nature which plaintiffs in other battery actions do not bear.  

The logic behind the view that sexual assault should somehow be treated differently from non-sexual assault and non-sexual battery is flawed; it is based on the premise that sexual touching somehow does not fall within the category of unwanted touching or that somehow it is less offensive.  

In the case of the Return of Kings website, the inflammatory words spread like wildfire. Whether the article in question was intended as only "a satirical thought experiment" [11] or whether it truly reflects the views of the author is irrelevant. The major problem is that people took the views seriously, which resulted in polarized reactions. By understanding the history of judicial decisions as it relates to the topics in the article, one can appreciate that an idea like this cannot become reality without a regressive, chaotic, and draconian alteration of legal principles and judicial decisions. Finally, although Canadian women's suffrage began only 100 years ago, it serves as a modern temporal benchmark to remind people that at our core, humans are equal. As society evolves to recognize equality, so too must the law.

[1] "Extreme Misogynistic Group Denounced in Edmonton" (3 February 2016), Canadian Broadcasting Corporation, online: <http://www.cbc.ca/news/canada/edmonton/extreme-misogynistic-group-denounced-in-edmonton-1.3431916> ["Extreme Misogynistic"].  

[2] This Ms. Suffragette post is written assuming that the views critiqued in this post are supported by some people notwithstanding the fact that the original author of the articles claimed, after the fact, that the article was "a satirical thought experiment" [infra note 11]: Roosh Valizadeh, "How to Stop Rape" (16 February 2015), online: Roosh V http://www.rooshv.com/how-to-stop-rape.  

[3] Steve McMahon, "Women Should not be Allowed to Vote" (15 May 2014), online: Kings Media <http://www.returnofkings.com/34330/women-should-not-be-allowed-to-vote> ["Women Should"].  

[4] R v Ewanchuk, [1999] 1 SCR 330 (25 February 1999), online: Judgments of the Supreme Court of Canada <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1684/index.do> [Ewanchuk].  

[5] "Extreme Misogynistic", supra note 1; Women Should, supra note 3.  

[6] Winnipeg lawyer Bob Sokalski says this might be hate-speech, which is a crime: "Lawyer: Return of Kings Doctrine Could be Illegal" (3 February 2016), online: Corus Radio <http://www.inews880.com/syn/107/115939/115939>.  

[7] Ewanchuk, supra note 4, at para 28.  

[8] Criminal Code, RSC, 1985, c. C-46 (29 January 2016), online: Government of Canada <http://laws-lois.justice.gc.ca/eng/acts/C-46/page-61.html#docCont>.  

[9] Ewanchuk, supra note 4, at para 28.  

[10] Non-Marine Underwriters, Lloyd's of London v Scalera, [2000] 1 SCR 551 (3 May 2000), at para 43, online: Judgments of the Supreme Court of Canada <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1786/index.do>.  

[11] Roosh Valizadeh, "Everything You Wanted to Know about Roosh but were Afraid to Ask" (4 February 2016) online: Kings Media <http://www.returnofkings.com/79719/everything-you-wanted-to-know-about-roosh-but-were-afraid-to-ask>.

Call me Old but not Traditional [1] - Henrietta Muir Edwards

The fifth member of the Famous Five women shares her name with the "Persons Case", Edwards v Canada (Attorney General), simply because her surname occurs first in the alphabet [2]. Henrietta Muir Edwards challenged mainstream Victorian-era Christian attitudes that accepted the exclusion of women. Refusing to accept women's subordinate position to men, Edwards considered everyone equally "coworkers with God" [3]. Her activism directly helped those in need and she rallied others to join.

The oldest of the Famous Five women prided herself on challenging traditional, antiquated beliefs in society. Edwards was born in 1849 to a wealthy, cultured, and religious family in Montréal, but spent her adult life relatively poor compared to her four colleagues. Her legal research and activist work always went unpaid [4]. Although most young, wealthy women of her day followed their privileged and traditional trajectory, Edwards used her Evangelical Christian principles to provide relief for less fortunate women. Rather than marry young, she convinced her father to buy a large house in downtown Montréal where she and her sister provided rooms, meals, reading classes, job training, and legal advice for young single women [5]. Edwards provided these services by creating the Working Girls Association, which eventually became the Young Women's Christian Association (YWCA). Edwards and her sister also founded "Working Woman of Canada", the first Canadian magazine for working women [6].

After marrying Dr. O.C. Edwards in 1876, Edwards and their three children accompanied Dr. Edwards as he practiced medicine throughout Canada, including the Northwest Territories, Ontario, Manitoba, and Alberta. Wherever they lived, she uplifted women and children who were at a disadvantaged position in society [7]. She engaged family, friends, and activists in discussing social issues. To advance her goal of women's equality, Edwards followed and researched Canadian law [8]. She earned the reputation of being well-versed in laws affecting women [9], and wrote organizational bylaws and letters to garner support for women's foundations [10]. In 1899, she became Convenor of Laws for the National Council of Women, compiling provincial laws affecting women and children [11].

Edwards was able to use her social position to leverage support for women's issues. With the assistance of Lady Aberdeen, the wife of the Governor General of Canada, Edwards founded the National Council of Women, the Victorian Order of Nurses, and the YWCA [12]. She lobbied extensively for the Alberta legislature to pass the Dower Act, SA, ch 14, in 1917 which gave property rights to widows. Edwards recognized that to gain rights equal to men, women needed to be recognized under property law, as suffrage was historically granted to property-owning men. In her post as Chair of the Provincial Council of Alberta, she furthered her cause to gain equal rights for parents in divorce matters and for women in prison [13].

When she was not working hard for equal rights, Edwards spent her leisure time painting and was known widely for her talent therein. She painted portraits of Lord Strathcona and Sir Wilfrid Laurier, among others. Much of her work was exhibited in Montréal, Ontario, and Chicago [14]. She was a loving wife and mother, and considered herself blessed to have had her husband's companionship "in perfect accord" for 39 years, as well as her three remarkable children, only one of whom outlived their mother [15].

It might seem that Canadian society's views "changed" with the introduction of voting rights for women in 1916 and with the Persons Case in 1929. However, we must remember that changes in law reflect societal values and that laws are not enacted in a vacuum. The women's suffrage movement preceding the 20^th century and the work of the Famous Five forced society to recognize that a woman should be viewed as equal to and distinct from all other men, including her husband, father, brother, or son. Women's organizations such as those founded by Edwards and Lady Aberdeen, along with the Women's Christian Temperance Union, the Women's Canadian Club, and the Women's Press Club, not only effected social change, but reflected the general progressive attitudes emerging out of Victorian-era Canada and Britain. The driving force behind the legal reform which gave women voting rights and the right to be appointed to the Senate can be attributed to notable members of the movement, including the Famous Five.

 

[1] Nancy Miller, The Famous Five: A Pivotal Moment in Canadian Women's History, "Henrietta Muir Edwards, First to Sign" (Cochrane: Deadwood Publishing, 2003) [Miller] at 66.

[2] Edwards v The Attorney General of Canada [1929] UKPC 86, [1930] AC 124 (PC) [Edwards v AG]; Miller, supra note 1.

[3] Miller, supra note 1 at 69.

[4] Ibid.

[5] Library and Archives Canada, Celebrating Women's Achievements, "Henrietta Muir Edwards", https://www.collectionscanada.gc.ca/women/030001-1106-e.html [Collections Canada].

[6] Canadian Women Artists History Initiative, "Edwards, Henrietta Muir", Concordia University, http://cwahi.concordia.ca/sources/artists/displayArtist.php?ID_artist=136 [CWAHI].

[7] Miller, supra note 1.

[8] Ibid.

[9] Collections Canada, supra note 5; Miller, supra note 1.

[10] Miller, supra note 1.

[11] Ibid.

[12] Ibid.

[13] CWAHI, supra note 6.

[14] Ibid.

[15] Miller, supra note 1.