Political Parity and the Charter of Rights

Posted 2001-02-01 by Andrée Côté | Jurisfemme Publications – Volume 20, No. 1, Winter 2001

Notes prepared for the "Stages of Citizenship " Conference, University of Ottawa, November 2-3, 2000

Women's underrepresentation in politics is a well-known fact. It is a historical phenomenon, which remains characteristic of all modern democratic systems. Currently, only 21% of Canadian MP's are women. This disparity has many causes, but the State clearly must shoulder its share of responsibility.

Indeed, it is by direct legislative action that governments have historically excluded women from the conduct of public affairs, as bear witness the various laws forbidding women to vote during the 19th and 20th century. The judicial system has also played an important role in the political marginalization of women; in 1928, for instance, the Canadian Supreme Court ruled in the Edwards case that women were not persons and could therefore not sit in the Senate.

Thus, the State has positioned itself as an active agent of women's exclusion from the political sphere, and it maintains, to a large extent, this practice. Indeed, the issue of"women" is marginalised in the very structure of government since there is no Department of the Status of Women at the federal level. The funding of women's groups is precarious and very restricted. Women from minority groups receive only minimal amounts from the overall budget envelopes allocated to the entire, mixed minority group, for example Native and French-speaking organizations. Moreover, Parliament refuses to seriously examine the issue of women's political involvement, despite a private bill presented to this effect in November 1999 by Caroline St-Hilaire, MP for the BlocQuébécois (Bill C-290, An Act to Amend the Canada Elections Act).

To raise the issue of women's political parity and its relationship with the Canadian Charter of Rights and Freedoms leads us to question the State's responsibility to prevent, stop and remedy sexual discrimination against women in the political sphere. This issue also raises both the negative legal duties incumbent on the State - not to enact laws that discriminate against women - and the more delicate question of the State's positive obligations to adopt remedial action, designed to transform social reality.

Although the provisions of section 15 of the Charter have been interpreted by the Supreme Court of Canada as prohibiting the adoption of any law, policy or practice whose effect is to exacerbate the inequality of a historically underprivileged group, it is debatable whether the Charter can be used to pressure governments into adopting proactive legislation in order to remedy discrimination against women in the political arena. Indeed, the S.C.C.'s decision in the case of the Native Women's Association of Canada (Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627) does not indicate a substantive judicial awareness of women's political interests.

On the other hand, international human rights law offers a number of statements that may justify a more favourable interpretation of the Charter. The Supreme Court itself recently showed itself willing to look to international treaties and declarations to justify a liberal interpretation of the Charter in Ewanchuk (R. v. Ewanchuk, [1999] 1S.C.R. 330) and Baker (Baker v. Canada (Minister of Citizenship and Immigration),[1999] 2 S.C.R. 817). Thus, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by Canada in 1981, states in its Preamble that "discrimination against women violates the principles of equality of rights and respect for human dignity" and that discrimination "is an obstacle to the participation of women, on equal terms with men, in political life." Moreover, Section 7of the Convention asserts the principle that "State Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right . . .(b) to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government."

The Beijing Platform for Action, adopted following the Fourth World Conference on Women, commits Canada to "take all necessary measures to eliminate all forms of discrimination against women and the girl child and remove all obstacles to gender equality and the advancement and empowerment of women" (para 24). It acknowledges that "the equitable distribution of power and decision-making at all levels is dependent on Governments" and that "equality in decision-making is essential to the empowerment of women." (para 187). The Platform states that governments should "take measures, including, where appropriate, in electoral systems that encourage political parties, to integrate women in elective and non-elective public positions in the same proportion and at the same levels as men." (para 190 b). Finally, the Platform commits governments to "remove all barriers that directly or indirectly discriminate against the participation of women," "consider incorporating gender issues in their political agenda, taking measures to ensure that women can participate in the leadership of political parties on an equal basis with men." Last summer, during the Special General Assembly of the UN organized in New York City to ensure a follow-up to the State parties Platform commitments("Beijing+5"), Canada once again agreed to specific measures designed to ensure women's equality in the political sphere.

These commitments from the Canadian government should have more than symbolic value. They ought to be argued in Canadian courts to support equality-based interpretations of governments' constitutional obligations when it comes to political parity for women. The issue for us is whether to adopt such a strategy. It has met with great success recently in France. There certainly is room for discussing the various options we are faced with, options which are not mutually exclusive. Should we go on building on the development of the women's movement, or take steps toward the adoption of a proactive law that would ensure women's political parity, or look into a more radical option, such as the creation of a feminist party? This is certainly a matter for discussion, one that should prove most interesting.

Andrée Côté is NAWL's Director of Legislation & Law Reform.