University of New Brunswick
The ability to reject traditional reasoning, to say “no”, is a central part of feminist critique and practice. Student groups introduced the “no means no” campaign into popular consciousness over two decades ago to emphasize the importance of sexual consent. While it lost purchase because of its seeming implicit burden imposed on women to communicate non-consent, the original idea behind it was to shift cultural values. Women’s “no” could no longer be devalued as meaningless, or a challenge to be overcome, worse yet, as a disingenuous way of saying “yes”.
Feminists often have to say “no” a lot, in terms of positively asserting that they reject inequitable, conventional understandings and refuse to go along. In a patriarchal culture, that becomes read as “sex negative”, as overly sensitive, or as biased (as the Chief Justice of the Quebec Court of Appeal recently discovered). While saying “no” is often powerful and sometimes a moral imperative, it wears on you. As Ahmed says:
[A] no can still be dismissed as impertinent in the sense of rudely bold or boldly rude and can be judged as an act of political vandalism. So many refusals are dismissed in these terms; you might be free to say no but your no is heard as destructive; hearings have consequences (becoming a killjoy is a consequence)… For feminism: no is political labour.
So, in the dissents I want to talk about, I celebrate the refusal to “go along” in favour of what might be professionally risky for the judge or simply a great deal of effort wasted or ignored. They represent ways of thinking that deserve another look.
Justice Frank Iacobucci in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), [2000] 2 SCR 1120
In Little Sisters, federal customs officials, under the auspices of holding back material they deemed “obscene” under the Customs Act, targeted a lesbian bookstore for discriminatory treatment. While the majority found that there was discrimination in application, this could not be attributed to the Act itself, as “Parliament is entitled to proceed on the basis that its enactments ‘will be applied constitutionally’ by the public service.” This was notwithstanding that customs officers were ill-trained to identify obscene material, and that the process for challenging improper decision-making was lengthy and cumbersome. The multipart, legalistic Butler regime to determine obscenity was deemed sufficient to guide officers – the problem was not that the Act but the individuals applying its rules.
By contrast, Iaccobucci refused this characterization – he saw the problems as systemic and “baked into” the regime established by the Act, leading to lack of training, turnover of officers, lack of procedural fairness for importers, as well as “superficial and context-insensitive” review of materials. He found accordingly that the Act “practically invites” violations of s.2(b) freedom of expression. The framework needed to be completely rethought from the perspective of expressive rights.
His seems to be an eminently appropriate approach where a regime is so flawed that it can be reasonably anticipated that its operation will very likely result in rights violations. In the same way, manufacturers cannot avoid tort liability completely where they make products with built-in design flaws, notwithstanding that harm could be avoided if those using them did so perfectly (rather than like typical human beings). Surely, fundamental constitutional rights demand at least as much protection (especially as those affected cannot avoid the state’s “product”). History proved Iacobucci J. right – Little Sisters continued to be targeted notwithstanding government promises in the Supreme Court appeal that it had improved the administration of the Act. Nevertheless, I have tried in vain to find any court decisions where his dissent on this point has been taken up and applied.
Justice Claire L’Heureux-Dubé in Thibaudeau v Canada, [1995] 2 SCR 627
To borrow a phrase, Thibaudeau is a terrible, horrible, no good, very bad equality decision, and the split amongst the judges is telling: the two female judges on the Court wrote separate dissents, with the male majority rejecting the section 15 claim. At issue was the treatment of child support under the Income Tax Act: it was taxable in the hands of custodial parents (98% of which were women) and a tax deduction for payors. Both justices analyzed the income tax regime through a gender lens, one that accounted for the realities of women raising children alone. The male judges relied on abstractions and legal fictions.
The majority and concurring decisions found that there was no negative distinction, because in most cases there was a net tax benefit to the “family unit” (which no longer existed). They thereby deemed egalitarian distribution of benefits to exist in families (even defunct ones!). This would notionally occur in separated families through “gross-ups” of child support to take into account tax consequences. If this version of “trickle down economics” did not occur and women had less money for their children, this inequality was “peculiar to specific cases” – the fault of individual judges or fathers not passing along tax benefits – and not the Income Tax Act. The justices refused to consider the unequal impact on custodial parents in their own right.
In Thibaudeau, L’Heureux-Dubé J. gestures to the doctrine of coverture in underscoring how using the couple as the unit of analysis for adverse effects of the taxation rules obscures inequality. She recognized the Act as the source of detrimental treatment because its “default” is that the benefit accrues completely to the non-custodial spouse and the detriment to the custodial spouse. The onus is on the custodial spouse to “wage an unremitting and costly battle, both emotionally and in the family law system,” if the family law system was to remedy the inequality completely through the gross-up mechanism. Not only did this require judges to perform repeated calculations perfectly, it also did not consider the practical realities of separated family life with custodial parents – women – having less money for legal fees and needing to avoid antagonizing non-custodial spouses. Despite her reasons not carrying the day in court, Parliament was persuaded: child support became non-deductible, non-taxable in 1997.
This case is emblematic of the justice’s emphatic “no” to an analysis of a woman’s Charter case that is degendered and abstracted to the point of absurdity. Constance Backhouse in her oeuvre, Claire L’Heureux-Dubé: A Life, documents the cost L’Heureux-Dubé J. pays for her rejections, including a fractious relationship with Justice (later Chief Justice) Antonio Lamer and a public, gendered attack by an appellate court judge following a sexual assault appeal popularly referred to as the “no means no” case, R v Ewanchuk, [1999] 1 SCR 330.
Her call to recognize the detrimental impact of default regimes that confer benefits to the more advantaged spouse would take nearly 20 years to be finally be recognized, in Quebec v A, 2013 SCC 5, [2013] 1 SCR 61. Even then, the majority voted to justify provincial family law legislation excluding common law spouses under section 1 because it prioritized autonomy and “choice” of couples. An approach that fully attends to conditions of subordination in which such “default” legislation operates has therefore yet to be fully embraced.
Justice Bertha Wilson in R v Morgentaler, [1988] 1 SCR 30
I wrestled with selecting the last “dissent”: do I adhere to the letter of these blog posts (dissents = a decision that is directly contrary to the majority on outcome) or the spirit (dissents = minority opinions that should have carried the day but didn’t)? There are several other decisions in which I agree with the dissenters on outcome, but their reasons are not completely compelling. In the end, I decided to keep with the spirit and discuss an opinion that technically is a concurrence.
At the time of Morgentaler (1988), Madam Justice Wilson was the only woman in a court that was not hospitable to women members, which makes her opinion even more remarkable for her refusal to “go along.” Relatively well known by now is that Justice Wilson departed from the majority by ruling that not only did the Criminal Code therapeutic abortion committee regime violate women’s security of the person due to its imposition of psychological trauma and unnecessary physical risk, any restrictions on abortion violated women’s right to liberty. She redefined liberty to include the right to make fundamental decision over one’s own life free from state interference, which included the decision as to whether to carry a pregnancy to term. In doing so, she created a more inclusive and objective conception of liberty over that gendered male. She remarked that the history of human rights had been “the history of men struggling to assert their dignity and common humanity against an overbearing state apparatus”, to the exclusion of “women’s needs and aspirations are only now being translated into protected rights”. Her conception of liberty came to inform majority decisions of the Court in cases like Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307.
Less cited, however, is how she found that the regime violated the principles of fundamental justice. She noted that Justice Lamer referred to other rights in sections 8-14 in interpreting fundamental justice in BC Motor Vehicles, thus leading her to surmise that the concept means not only procedural fairness but also consistency with other Charter rights and freedoms. Accordingly, “a deprivation of the s. 7 right which has the effect of infringing a right guaranteed elsewhere in the Charter cannot be in accordance with the principles of fundamental justice.” The abortion regime also infringed women’s freedom of conscience given that the state sought to override women’s own moral decision-making. Consideration of other rights violations as a breach of fundamental justice is profound – it recognizes that the Charter as a whole is an embodiment of what is just. In an article called “Constitutional Coalescence”, I argued this does not necessarily mean that one does, e.g. a mini-s.2(a) or s.15 analysis within section 7, but that an interpreter views the former rights through a different (potentially wider) lens, one that goes beyond a hyper-individualized and procedurally-based notion of justice to one that considers systemic structures of subordination. This is in stark contrast to other cases in which the Court has been at pains to keep rights conceptually separate and has declined to consider all rights in multiple rights claims. This led to what I refer to in my earlier work as a “watertight compartments” approach to the Charter leading to complete rejection of claims involving multiple rights. Despite its potential enrichment to our understanding of Charter rights, Wilson J’s innovation has not explicitly been taken up by other judges.
As Carissima Mathen has written in relation to equality, a divided decision “that is the result of failure to reach agreement on ‘deep’ issues is preferable to one that, as the price of unanimity, remains ‘shallow.’” The dissents that I have highlighted reflect the potential depth of dissenting decisions, and into which I hope future justices will mine for their wealth.
Double Aspect 