The complainant applied for membership of the Yukon Order of Pioneers and was rejected on the ground that she was female. According to its constitution, the Order is dedicated to, among other things, the advancement of the Yukon territory, the mutual protection of its members and the collection and the preservation of literature and incidents of Yukon’s history. The historical materials and details of members are made available to the public, which is the only public-service related activity of the organization. The Board of Adjudication, constituted by the Yukon Human Rights Commission, concluded that the Order was offering or providing services to the public and concluded that the discrimination was prohibited under section 8 of the Yukon Human Rights Act. The Yukon Supreme Court set aside that decision and concluded that the complainant’s exclusion did not amount to discrimination and the Yukon Court of Appeal agreed. The Supreme Court, with two dissenters, also found in favour of the Order of Pioneers, stating that section 8 prohibits discrimination in membership of certain types of organizations that provide public services and that the Order did not provide public services.
Women and Justice: Court: Supreme Court of Canada
Domestic Case Law
Canadian National Railway Co.v. Canada (Human Rights Comm.) and Action travail des femmes Supreme Court of Canada (1987)
A Human Rights Tribunal constituted under s.39 of the Canadian Human Rights Act 1976-77 found that the recruitment, hiring, and promotion policies at Canadian National Railway Company (“CN”) prevented and discouraged women from working on blue collar jobs and as a result it imposed a special employment programme on CN. The programme required CN to increase to 13% the proportion of women working in non-traditional occupations and until that goal was achieved to hire at least one woman for every four non-traditional jobs filled in the future. On appeal, the Supreme Court had to determine whether the Tribunal has the power to impose upon an employer an “employment equity program” to address the problem of systematic discrimination in the hiring and promotion of a disadvantaged group, in this case women. The Supreme Court found that the order was within the Tribunal’s jurisdiction under s.41(2)(a) of the Canadian Human Rights Act. It said that an employment equity program such as the one in question is an attempt to ensure that future applicants and workers from the affected group will not face the same barriers and that the order in question was the only means by which the purpose of the Canadian Human Rights Act could be met.
Brooks v. Canada Safeway Ltd Supreme Court of Canada (1989)
The respondent’s group insurance plan provided weekly benefits for loss of pay due to accident or sickness. The plan covered pregnant women subject to an exclusion from coverage during the period commencing on the tenth week prior to the expected week of childbirth and extending to six weeks after it (even if the accident or sickness was unrelated to the pregnancy). The appellants, who all became pregnant in 1982, alleged that the differential treatment of pregnancy in the respondent’s plan constituted discrimination on the basis of sex contrary to s.6(1) of the Human Rights Act of Manitoba. The Supreme Court ruled that pregnancy discrimination is a form of sex discrimination and that the respondent had discriminated against the appellants on the basis of sex. It said that bearing children benefits society as a whole and women should not be economically or socially disadvantaged due to childbearing.
British Columbia (Public Service Employee Relations Commission) v. BCGSEU Supreme Court of Canada (1999)
The Government of British Colombia established minimum physical fitness standards for fire fighters. The claimant, a woman, had previously performed her work satisfactorily but failed to meet the aerobic standard. The arbitrator found that the aerobic standard constituted adverse discrimination based on sex because men as a group have a higher aerobic capacity than women and therefore are more able to reach the standard. The Court of Appeal overturned the ruling. Disagreeing with the Court of Appeal, the Supreme Court held that the aerobic standard used to test fitness of fire fighters discriminates on the basis of sex and that the Government of British Colombia failed to show that the discriminatory standard is justified as a bona fide occupational requirement.
R. v. Hutchinson Supreme Court of Canada (2014)
The complainant agreed to sexual intercourse with her partner provided that he use a condom to prevent conception. Without the complainant’s knowledge, the accused poked holes in the condom and the complainant became pregnant. The trial judge found that the complainant had not consented to sexual intercourse without a condom and the accused was convicted of sexual assault. On appeal, the majority upheld the conviction on basis that the condom was an “essential feature” of the sexual activity. The main issue before the Supreme Court was whether the act of sabotaging a condom results in there being no consent under s.273.1(1) of the Criminal Code or should it be considered as a factor to vitiate consent under s.265(3)(c). The law prescribes a two-step test for determining whether there is consent to sexual activity. The first step requires the court to determine whether there was a voluntary agreement of the complainant to engage in the sexual activity in question and if the court finds that there was consent, the court then considers the possible presence of circumstances that would negate consent. The majority of the Supreme Court found that the consent was vitiated by fraud under s.265(3)(c).
R. v. Barton Supreme Court of Canada (2019)
The accused was charged with first degree murder of an Indigenous woman who was sex worker. The deceased was found in his hotel room. The cause of death was found to be loss of blood due to an 11cm wound in the victim’s vagina. In its opening address, the prosecution referred to the deceased as a “prostitute” and discussed how she and the accused had struck up a working relationship the night before her death. In addition, without ordering a separate hearing or considering the relevance of the evidence as is required pursuant to section 276 of the Criminal Code (evidence of complainant’s sexual history), the trial judge allowed the accused to testify at length about his previous sexual activity with the deceased. The jury acquitted the accused, but the Court of Appeal ordered a new trial on first degree murder. In the Supreme Court, the majority agreed that a new trial should be ordered, but on the lesser charge of unlawful act manslaughter. This was because the trial judge’s mistakes in not considering the relevance of evidence did not affect the decision on murder. The Supreme Court said that defences to sexual assault cannot rely on things that support myths about women and consent. The first myth being that a woman’s consent to previous sexual activity means she consents to the current act in question and the second myth being that such women might not tell the truth.
R. v. Goldfinch Supreme Court of Canada (2019)
The accused was charged with sexual assault of a woman he had once dated. The complainant claimed that on the night in question, she had called to the accused’s house for drinks and that he snapped, dragged her to his bedroom, hit her, and forced her to have sex with him. At trial, the accused requested that evidence of a “friends with benefits” relationship be admitted to the jury as it was important context for the jury to know. The trial judge allowed what he called the “benign” evidence to be admitted. The jury found the accused not guilty but the Court of Appeal said the evidence should not have been allowed. On appeal to the Supreme Court, the court said the evidence should not have been allowed and that it was used to suggest that as she had agreed to sex in the past, she was more likely to agree on this occasion which is exactly what the “rape shield law” (section 276 of the Criminal Code (evidence of complainant’s sexual history)) is designed to protect. The Supreme Court said that the judge should have made the accused show that the evidence was useful for some other important reason. A new trial was ordered.
Brooks v. Canada Safeway Ltd. Supreme Court of Canada (1989)
Three female Safeway employees filed a complaint with the Manitoba Human Rights Commission stating that the company plan discriminated based on sex and family status by denying benefits for loss of pay due to accident or sickness during a 17-week period during pregnancy (even if the accident or sickness at issue was unrelated to the pregnancy). The Commission’s adjudicator dismissed the claims, and this decision was upheld by the Court of the Queen’s Bench and the Court of Appeal. The Supreme Court of Canada decided that Safeway’s plan did discriminate against pregnant women. Noting that “it cannot be said that discrimination is not proven unless all members of a particular class are equally affected,” the Supreme Court of Canada determined Safeway discriminated against the employees on the basis of sex under the Manitoba Human Rights Act.
Lavallee v. Her Majesty the Queen Supreme Court of Canada (1990)
The appellant, a battered woman, killed her abusive partner after an argument in which he threatened her life. In her defense, the appellant offered the expert testimony of a psychiatrist who testified regarding battered woman syndrome. The appellant was ultimately acquitted. The Manitoba Court of Appeal overturned the acquittal, and the Supreme Court of Canada considered whether the expert testimony of the psychiatrist should have come before the court and whether the judge’s instructions on said testimony were appropriate. The Supreme Court held that the testimony was admissible “where the expert has relevant knowledge or experience beyond that of the lay person,” as in the case of battered woman syndrome, and where the testimony is relevant to understanding the “reasonableness” of the defendant’s perspective.
Canada (Attorney General) v. Bedford Supreme Court of Canada (2013)
Three women challenged three Canadian Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities. Section 210, which prohibited the operation of common “bawdy-houses,” prevented prostitutes from offering their services out of fixed indoor locations such as brothels. Section 212, which prohibited “living off the avails” of prostitution, prevented anyone, including “pimps,” from profiting from another’s prostitution. Section 213, which prohibited “communicating” for the purpose of prostitution in public, prevented prostitutes from offering their services in public, particularly on the streets. On December 20, 2013, the Supreme Court of Canada unanimously decided that all three laws were unconstitutional, reasoning that the laws infringe on sex worker’s rights under the Canadian Charter of Rights and Freedoms by depriving them of “security of the person” in a way that is not in accordance with the “principles of fundamental justice.” Starting from the position that prostitution is legal in Canada, the Court declared that the three laws: “Do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.”
R. v. J.A Supreme Court of Canada (2011)
This appeal involved the interpretation of “consent” under the sexual assault provisions of the Criminal Code of Canada. The Supreme Court of Canada in its seminal decision in 1999 in R. v. Ewanchuk unanimously confirmed that consent to sexual activity must be active, voluntary and revocable, meaning that a woman can say “no” at any time. Further, the Supreme Court in Ewanchuk held that consent cannot be implied, whether from a complainant’s dress or the fact that she said “yes” on an earlier occasion. R. v. J.A. involved a woman who reported that she was sexually assaulted by her common-law spouse where the accused strangled the complainant into unconsciousness. When the complainant awoke, she found herself bound and being anally penetrated. The accused argued that the complainant consented “in advance” to the strangulation and anal penetration that took place while she was unconscious. In its judgment, the Supreme Court held that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…, requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy the requirement.”
D.B.S. v S.R.G. Supreme Court of Canada (2006)
This case concerned the issue of child support and the entitlement of recipient spouses, predominantly mothers, to increased child support following an increase in the income of payer spouses, who are predominantly fathers. The Supreme Court of Canada ruled unanimously that ex-spouses could face significant retroactive child support payments if they failed to declare their increased earnings.
Darrach v. Her Majesty the Queen Supreme Court of Canada (2000)
Andrew Scott Darrach was accused of sexually assault and “attempted to introduce evidence of the complainant’s sexual history” at trial as part of his defense. After the voir dire process, required under the Criminal Code of Canada, the trial judge refused to allow the introduction of evidence on the plaintiff’s sexual history. Darrach was convicted of the assault. Darrach appealed on the basis that the refusal impeded his right to fair trial. The Supreme Court determined that the trial judge had followed the Criminal Code provisions appropriately, dismissing Darrach’s appeal, and noted that forcing the complainant to testify on such history at trial would likely discourage individuals from reporting sexual crimes and also invade the privacy of victims.
Moge v. Moge Supreme Court of Canada (1992)
The parties, Polish immigrants, divorced in Canada after approximately 25 years of marriage. The wife had a seventh grade education and no special skills or training. During the marriage, in addition to caring for their 3 children and the house, she worked evenings cleaning offices. After the separation, she was awarded custody of the children and received $150 per month spousal and child support and continued to work cleaning offices. The husband remarried in 1984 and continued to pay support to his former wife. She was laid off in 1987 and, as a result of an application to vary, her spousal and child support was increased to $400. She was later able to secure part-time and intermittent cleaning work. In 1989, the husband was granted an order terminating support. The trial judge found that the former wife had had time to become financially independent and that her husband had supported her as long as he could be required to do. The Court of Appeal set aside the judgment and ordered spousal support in the amount of $150 per month for an indefinite period. The matter was appealed to the Supreme Court of Canada to determine whether the wife was entitled to ongoing support for an indefinite period of time or whether spousal support should be terminated. The Supreme Court of Canada determined that spousal support should continue and that termination of spousal support, pursuant to sec. 17 of the Divorce Act, should consider the recipient’s disadvantaged economic status as a result of the marriage breakdown both at the time of breakdown and as it may continue, rather than a simple “sink or swim” policy premised on the wife’s having had sufficient time to become self-sufficient. This decision has provided considerable protection from impoverishment for recently divorced women.
R. v. Morgentaler Supreme Court of Canada (1988)
Prior to this case, a woman had to get the approval from the therapeutic abortion committee of an approved hospital before she could get an abortion in Canada. Abortions performed without this approval were illegal. Three doctors, including Dr. Morgentaler, set up a clinic to perform abortions for women who did not have the necessary approval and the doctors were criminally charged. They argued that the abortion laws violated a woman’s right to security of the person. The Supreme Court of Canada decided that the Criminal Code’s restrictions on abortion were unconstitutional because they increased health risks to women, depriving them of the right to security of the person. Since this decision, no abortion laws have been enacted. Therefore, this decision has had the practical effect of giving women the freedom of choice.
Steve Brian Ewanchuk v. Her Majesty the Queen Supreme Court of Canada (1999)
The accused engaged in increasingly inappropriate sexual behavior toward the 17 year old complainant whom he was interviewing for a job. The teenager reported feeling afraid and stated that she repeated “no” at each advance. Despite the teen’s refusals, the accused continued to touch the complainant. The trial court acquitted the accused of sexual assault charges based on implied consent and the acquittal was upheld in the Court of Appeal. An appeal to the Supreme Court of Canada followed, in which the Supreme Court considered whether the trial court judge (1) erred with regard to his conception of consent and (2) whether the defense of “implied consent” was appropriate to this case. The Supreme Court of Canada found that the accused’s behavior did constitute sexual assault and noted that the trial judge erred in the determination that the teenager implicitly consented, stating, “the question of implied consent should not have arisen.” Specifically, the Supreme Court of Canada determined that the trial court had relied on stereotypes about women, including the problematic idea that women are “in a state of constant consent to sexual activity,” and asserted that these stereotypes “no longer find a place in Canadian law.”
Janzen v. Platy Enterprises Ltd Supreme Court of Canada (1989)
The appellant waitresses had been harassed while working at Pharos Restaurant, a restaurant owned by Platy Enterprises Ltd. Multiple waitresses endured sexual harassment from the same employee. In each individual incident, the waitresses resisted the conduct and one waitress spoke to management. While the harassment stopped, the offending employee continued to behave in an “unpleasant manner.” An adjudicator for the Manitoba Human Rights Commission awarded damages to the victims of sexual harassment and found that they had been “victims of sex discrimination contrary to s. 6(1) of the Human Rights Act. The Court of the Queen’s Bench upheld the decision, but the Court of Appeal later reversed. The Supreme Court of Canada held that the lower court “should not have reduced the amount of damages given to the appellants” given the severity of the sex discrimination experienced by the employees.
R. v. Ewanchuk Supreme Court of Canada (1999)
The female complainant was repeatedly touched in a progressively intimate manner by the accused, despite the fact that she clearly said “no” on each occasion. Any compliance by the complainant with the accused’s advances was done out of fear, as she believed that they were locked inside the accused’s trailer. The conversation that took place between the two in the trailer clearly demonstrated that the accused knew that the complainant was afraid and that she was an unwilling participant. The complainant filed suit against the accused for sexual assault in the Alberta Court of the Queen’s Bench. Despite the trial judge’s acceptance of the complainant’s testimony regarding her lack of consent, the judge acquitted the accused on the basis of “implied consent”; the Court of Appeal affirmed. On the issue of whether the trial judge erred in his understanding of consent in sexual assault, and on whether the defense of “implied consent” was proper, the Supreme Court of Canada held that there was error and ordered that an appeal from that decision be allowed.
R. v. Mills Supreme Court of Canada (1999)
The Supreme Court of Canada upheld a recently enacted rape shield law. Mills, a defendant in a rape case, challenged the law, arguing it violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court found that the law gave sufficient discrepancy to judges to ensure that the rights of a defendant in a rape case were not violated.