Cover Image: Black and white photograph of Toronto Women's March, from the CWMA Collection (10-001), Archives and Special Collections, University of Ottawa.
***Note on content: This section of the exhibit contains examples of sexism, racism, and some graphic descriptions of sexual assault and violence against women.
NAWL’s presentation to the Joint Committee on the Constitution in 1980, contending that all levels of the courts should contain a representative number of women, addressed more than simple diversity or visibility. Not only were women underrepresented in the Supreme Court of Canada, but women in the legal profession struggled to gain appointments to the bench in provincial, civil, and criminal courts.
Throughout the 1980s and 1990s, NAWL collected an enormous amount of research on the Canadian legal system’s bias against women, especially in cases of domestic violence and sexual assault. In response to gender equality rights entrenched in the Charter of Rights and Freedoms, the 1980s would see three of the first-ever female justices appointed to the Supreme Court of Canada: The Hon. Bertha Wilson in 1982, The Hon. Claire L'Heureux-Dubé in 1987, and The Hon. Beverley McLachlin in 1989 (falling notably short of NAWL’s goal, articulated by Monique Charlebois, of 52.4% representation). However, despite these incremental changes, NAWL argued that Canadian laws continued to sanction violence against women, compounding the violence that many had experienced in their own homes.
This year, in partnership with NAWL, the University of Ottawa Archives and Special Collections celebrates NAWL’s 50th anniversary by delving into the organization’s history, including their landmark achievements, legal interventions, organizational challenges, and their undeniable impact on Canadian society. While this section will focus primarily on NAWL’s struggle to end Violence Against Women in Canadian law, you may click the following links to learn about The Founding of NAWL, and their projects on Women and Work, Reproductive Justice, and Marriage Equality.
In the 1980s, NAWL “was actively involved in... Criminal Code amendments which reclassified sexual assault [and] repealed the marital rape exemption, the requirement of corroboration, and the recent complaint doctrine,” all of which either denied women the right to their own bodies or denied their credibility as witnesses to the crimes committed against them. For example, in 1980, the Canadian Criminal Code stated that "No accused shall be convicted of an offence under section 148, 150, 151, 152, 153, 154, or 166 upon the evidence of only one witness unless the evidence of the witness is corroborated in a material particular by evidence that implicates the accused.” [1]
Corroboration thus applied to the evidentiary rules for incest, seduction of a female between 16 and 18, and sexual intercourse with a stepdaughter or employee, alongside other similar offences. Additionally, most Criminal Code provisions governing sexual crimes stated that the complainant had to be of ”previously chaste character,“ and could not be the wife of the accused. In fact, women were not protected by Canadian laws against marital rape until 1982, the same year that the Charter of Rights and Freedoms became legally binding. [1]
Despite prejudicial laws which regarded testimony by women and children with doubt and suspicion, it was often women who were presumed to hold legal biases against men. In a piece of internal correspondence written on March 5th, 1992, NAWL’s Manitoba chapter reported on their meeting with the Manitoba selection committee for judicial appointments: “We were told unofficially... that significant involvement in the women’s movement is likely to disqualify one on the basis that one is likely biased in favour of women. The converse with men of course is not the case.” [2] In response, by February of 1994, NAWL had collected numerous examples of Canadian judge’s biased comments from the bench, outlined by the following internal document [3]:
One significant example of sexism in the courts came from Manitoba Provincial Court Judge Ken Peters in Dauphin, 1989, when he made the following declaration during a convicted man’s sentencing hearing:
How does a person admonish his wife if she goes out on the town with other people, to wit: guys, drinking, and comes home late when she should have been home looking after the children or cooking, or whatever else she is expected to do. Sometimes a slap in the face is all that she needs and might not be such unreasonable force after all; but here there was at least a slap in the face to which he has pleaded guilty and is prepared to suffer the consequences.
In a statement published in response to Judge Peters' comments, NAWL argued that “it is totally unacceptable that a judge should voice stereotypical opinions as to the role and place of women in society” and that “Judge Peters’ statement seems to condone rather than condemn violence in the family unit.” [4]
Similarly, in 1995, NAWL and other human rights’ groups reacted in uproar at comments from the bench of Quebec Superior Court Justice Jean Bienvenue, who managed to craft remarks that were equal parts antisemitic and sexist during his sentencing of a woman who had killed her husband: “People say, and I believe it, that when they fall, women reach a level of baseness that the most vile man couldn’t reach,” Bienvenue stated, noting further that “At the Auschwitz-Birkenau concentration camp in Poland, which I once visited with horror; even the Nazis didn’t kill millions of Jews in pain or in blood. They died without suffering, in the gas chambers.” [5]
In an article published in the Ottawa Citizen on December 9th, 1995, Jack Branswell recorded the response of Françoise David, head of the Quebec Federation of Women, who stated bluntly that “Not only is it profoundly sexist but it’s also stupid.” David further explained that “I was more horrified by what he said about how Nazis treated the Jews.” The Quebec Federation of Women would go on to file a complaint against Bienvenue with the Canadian Judicial Council, eventually leading to Bienvenue’s resignation when the Council recommended his removal from the bench. [5] It is worth noting, however, that this kind of professional discipline was exceptionally rare; more often than not, the sexist remarks which NAWL had collected over the years were not subject to judicial review.
Left: "Controversial comments by judges often in headlines" (15 January 1994), The Edmonton Journal, box 58, file 13, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
NAWL documented judges’ sexist comments as part of their effort to demonstrate the need for significant judicial reform. In response to Justice Bienvenue, NAWL made the following public statement which condemned the government’s lack of action on legal bias against women, and outlined their strategies for change:
"The National Association of Women and the Law has been calling for years for mandatory anti-sexism and anti-racism training, something that [Judge Bienvenue] is badly in need of.
It’s time for the federal government to keep their 1993 election promise of mandatory sensitivity training for judges.
This is a wake-up call: Sexism and racism are alive and well and living in our judiciary. And the government needs to respond with a clear message that behaviour of this kind is not acceptable and will not be tolerated.
Getting at this type of biased behaviour requires a three-pronged approach: 1) mandatory anti-sexism and anti-racism training; 2) more women being appointed to the bench, which will help to ensure that women who come into contact with the justice system will not be subjected to this type of biased thinking; 3) comprehensive programming in law schools to ensure this sort of thinking is exposed and challenged.
Traditionally, judges have opposed mandatory judicial training because it interferes with their neutrality. But judges who hold these types of stereotypes aren’t neutral, and they don’t have the right to hold views that discriminate against women." [6]
Nevertheless, it was not until 2021 that the federal government implemented mandatory anti-racism and anti-sexism training with the passing of Bill C-3, an amendment to the Judges Act and the Criminal Code that also requires judges to issue written decisions in sexual assault cases. [7] The bill focuses specifically on sexual assault because such trials are often the catalyst for judges’ public declaration of harmful social biases inconsistent with the value of impartiality.
In 2016, for example,Justice Robin Camp resigned after the Canadian Judicial Council recommended his removal from the bench for infamously asking a sexual assault complainant why she why she “couldn't just keep [her] knees together,” among other inflammatory comments. During his judicial misconduct review by the CJC, Judge Camp admitted that he had a “non-existent knowledge of criminal law,” and noted that he was especially ignorant in cases of sexual assault and violence against women. Yet it still took five more years for mandatory training to come into effect. [8]
Despite sustained efforts by NAWL and other human rights groups starting in the early 1980s, there were many who fought against these kinds of reforms on the grounds that training judges would bias the courts. For example, in a Financial Post article titled “Supreme Court now telling us what sexism is” published on January 15th, 1994, journalist Ted Byfield argued that the courts should not be forced to uphold equality between men and women. Citing American sociologist Steven Goldberg’s book Why Men Rule (1993), Byfield argued that “It is a thoroughly documented work, holding the contention that ‘boys will be boys’ and that educational attempts to turn them into something else may turn them into monsters. Their aggressiveness can be directed and controlled but not eliminated. They can’t be psychologically turned into little girls.” [9]
Byfield contrasted the views of this “credible sociologist” with the views of “many modern feminists,” stating that a judge who believed the former would be incorrectly labelled as “sexist” simply because “he would consider a certain aggressiveness normal in a male that he would not consider normal in a female. He would condone conduct in one sex that he might not condone in the other. In sexual relations, for instance, he would expect the male to initiate and the female to respond. He would consider male aggressiveness as normal. He would not consider ‘equality.’” Byfield also criticized the Canadian Constitution itself, lamenting that “... the court is now dictating to us, not only the law, but which views of sociology and psychology are to be the allowable ones in Canada and which views aren’t. That is the price we are paying for our wondrous Charter of ‘Rights and Freedoms.’” [9]
Byfield’s article demonstrates that NAWL not only had to contend with biased perspectives from the bench, but also had to counter the erroneous sociological and biological theories which permeated the Canadian legal system. For example, theories of “natural male aggression” manifested in law through the defense of provocation in section 232 of the Criminal Code, for which NAWL expressed vehement and sustained opposition. According to NAWL Director of Legislation and Legal Reform Andreé Côté, writing in 1996:
The statutory defense of provocation partially excuses murder committed in a fit of anger, if the accused lost his self-control and if the legal authority is of the opinion that an ‘ordinary man,’ in the same circumstances, would also have been provoked by the victim to the point of losing his self-control and killing his spouse." [10]
Invoked as a means of reducing charges from first or second-degree murder to the lesser charge of manslaughter, NAWL noted that “provocation bestows on anger a special status in criminal law,” and that “the vast majority of reported cases on provocation, including most of the Supreme Court rulings on provocation concern situations of spousal homicide.” [11]
Image: Louise Shaughnessy's editing notes for NAWL's brief about the defense of provocation (c. 2000), box 37, file 7, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
In their Brief on the Defence of Provocation published in April 2000, NAWL outlined the following history of provocation in Canadian criminal law:
“Historically, the defence of provocation was constructed on the paradigm of the ‘crime of passion,’ the husband who kills in ‘hot blood’ because he finds his wife in the act of adultery. The right of men to appropriate the woman of their choice and to respond vehemently to any threat to their control and possession of her, was the underlying rationale for the defence. Adultery was a favorite theme for provocation law of the 19th century, but until the First World War only married men could ‘justifiably’ be provoked by a spouse’s infidelity; that ‘right’ was not granted to men in relation to mistresses or girlfriends over whom they had no legal ‘claim.’ However, since the Second World War, the scope of provocation has been expanding steadily...Indeed, the defence had widened to encompass a great number of scenarios.” [11]
By way of evidence, NAWL cited a selection of Canadian cases in which provocation was accepted as legitimate defense:
Krawchuk, 1942: The Supreme Court of Canada “expended provocation beyond its historical limits to include a situation where the accused was told of his wife’s infidelity and where the wife had announced her intentions to leave the marriage.” The Court ordered a new trial and said that provocation should have been offered because “this episode [constituted] the ultimate destruction of the distracted husband’s hopes that he might yet rescue his wife from temptation.”
Taylor, 1947: The Supreme Court of Canada ruled that a woman’s refusal to obey the orders of her husband, and her implication that he could not force her to obey, constituted grounds for provocation.
Galgay, 1972: The defence of provocation was allowed by the Ontario Court of Appeal because the victim had told her boyfriend, after he had returned from prison, that she was leaving him due to his alcoholism.
Thibbert, 1996: The Supreme Court of Canada allowed the defence of provocation because the wife of the accused had left him for another man. When the accused stalked his wife and tried to corner her into talking to him, her new partner got in between them. The accused then shot and killed her new partner. According to the courts, this behavior was that of “an ordinary person who was a married man faced with the break-up of his marriage.” The “provocation” in this case was that the victim was “mocking him and preventing him from his private conversation with his wife which was so vitally important to him.”
Stone, 1999: The Supreme Court “did not question the appropriateness of submitting a defense of provocation to the jury in a case that was framed as a ‘nagging wife’ scenario” and reduced a murder charge to manslaughter for a man who had allegedly blacked out and stabbed his wife 47 times, because she threatened to denounce him to the police for wife assault and file for divorce. In this case, provocation was also sued to mitigate the charges for manslaughter. [11]
Citing these cases, NAWL argued that “These cases point to a jurisprudence that considers women’s autonomy – her drive for independence, self-respect, and security – as provocative insults, which call for compassion for the accused... as many authors have argued, this jurisprudence vindicates men’s proprietary interest in their spouses and legitimates murderous ‘loss of self-control' as a response to a woman’s attempt to assert her autonomy.” [11]
These cases also demonstrate the harms inherent to Byfield’s assertion that “male aggressiveness” should be considered “normal,” predicated on sociological theories that presented male dominance as an inevitable fact. NAWL argued that male rage had been privileged in the law to the detriment of other emotional responses, such as killing due to fear or compassion.
Similarly, NAWL noted their inability to find cases in which women had successfully used the defense of provocation after killing their abusive spouses, since Canadian law had “narrowly interpreted provocation to consist of a single ‘sudden’ or ‘immediate’ provoking event.” Thus, women who killed to stop the abuse of themselves or their children were not permitted to invoke the defense of provocation. NAWL’s brief also criticized homophobic applications of the defense of provocation, which reduced sentences for men convicted of killing other men due to perceived homosexual advances. [11]
Left: Notes on the defense of provocation (c. January 2000), box 34, file 3, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
It is for these reasons that NAWL sought the outright abolition of this defense in Canadian criminal law. Since 2015, Canada has significantly limited the defense of provocation, which can now only be used when the provoking conduct would constitute an indictable offense, and specifically excludes adultery and separation. However, it is clear from these examples that myths of male “aggression” saturated the Canadian legal system, allowing male violence to be excused as "ordinary,” while female violence, even in self-defense, was held under strict scrutiny.
NAWL had been struggling against these legal myths, and their unjust scrutiny of women's behavior, since their inaugural conference in 1975 when they passed a resolution that “the evidence of the complainant’s past sexual conduct, habits and associations be inadmissible in assessing the credibility of her testimony at the trial of a sexual offence.” [12]
NAWL argued that, in cases of sexual assault, complainants were routinely subjected to cross-examinations which sought to determine their credibility, while the accused were not assessed in this manner. NAWL thus “consistently advocated the necessity of rape shield legislation in order to ensure that irrelevant and prejudicial evidence is not improperly brought before the court in sexual assault trials.” In the 1990s, the organization sought to further strengthen rape shield laws in response to “an aggressive practice of seeking private, personal records of complainants in sexual assault trials,” including medical records, psychiatric records, past disciplinary records (such as those obtained through schooling), personal diaries, and the notes written by counsellors at rape crisis centers. [12]
NAWL lobbied successfully for rape shield legislation with the passing of Bill C-39 in 1992, which protects sexual assault complainants from cross-examination regarding their past sexual behavior: “The court now states that the accused can never raise irrelevant evidence. If an accused wants to cross-examine a woman about her past sexual history, he must first file an affidavit stating the connection between that evidence and his defence, and has to be prepared to be cross-examined on that affidavit by the Crown." [14]
Left Image: NAWL's Notes on records disclosure legislation (c. 1990s), box 25, file 6, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
However, NAWL was particularly appalled by the 1995 Supreme Court Decision in O’Connor v. The Queen, which set a precedent for the easy retrieval of complainants' personal records. Such records could then be viewed by both the defense counsel and the accused themselves. In response to this decision, Teressa Nahanee of the Aboriginal Women’s Center made the following statement:
In O’Connor, the four complainants were Aboriginal women who attended a residential school at which O’Connor was their priest, principal, and later employer. Some of their records were made, by O’Connor, at this school. We cannot understand how the Court failed to recognize the inherent offensiveness of records that were produced in an institution dedicated to the annihilation of Aboriginal people. A truly equal justice system would not demand unlimited access to these women’s entire life histories as their purchase price for obtaining white justice." [15]
NAWL argued that this “liberalized disclosure regime” not only discouraged women from reporting sexual assault, but also “increased the vulnerability and decreased the protections afforded to those with mental health histories and to those who had been extensively documented by state agencies, including aboriginal women, women living in poverty and women with disabilities.” [15] Rape Crisis Centers and other women's organizations expressed similar concerns throughout the 1980s and 1990s, leading to legal action against some RCCs for shredding their clients' confidential files.
Sean Fine, "Civil disobedience backfires for Ontario rape crisis centres" (6 December 1994), The Globe & Mail, box 25, file 7, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
While it was certainly important to consider the rights of the accused, NAWL argued that the law’s use of personal records in such cases was discriminatory, in part because complainants of other crimes were not required to have their credibility tested in this manner. While rape shield legislation has been successful in many cases, challenges remain in protecting women’s personal records from undue scrutiny by the defense counsel and the accused themselves. At NAWL’s 14th Biennial Conference in 2002, University of Alberta Professor Lise Gotell stated that “resisting disclosure remains a crucial site in the struggle against coercive sexuality.” Today, ending Violence Against Women remains a key pillar of NAWL’s mandate for legal reform.
Enshrining women’s right to bodily autonomy in Canadian law has always been an important and extensive part of NAWL’s mandate. While this section has focused on legal reforms surrounding sexual assault and domestic violence, you can CLICK HERE to learn about their influence on the fight for Reproductive Justice in Canada.
This exhibit was created by Meghan Tibbits-Lamirande, ARCS storyteller-in-residence
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WORKS CITED
[1] “1980 Criminal Code, R.S.C. 1970, c. C-34,” A History of Canadian Sexual Assault Legislation, from the website of Canadian legal scholar Constance Backhouse, https://www.constancebackhouse.ca/fileadmin/website/1980.htm
[2] Manitoba Association of Women and the Law, Correspondence to the National Office, 5 March 1992, box 58, file 14, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[3] Addario, Lisa. “Judge's Sexist Comments,” 17 February 1994, box 58, file 13, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[4] National Association of Women and the Law, “Draft response to judge’s sexist comments,” box 58, file 13, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[5] Branswell, Jack. "Quebec judge unapologetic for remarks about Jews and women,” The Ottawa Citizen, 9 December 1995, box 58, file 13, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[6] National Association of Women and the Law, “Response to the comments of Judge Bienvenue,” box 58, file 13, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[7] Jones, Ryan Patrick. “Sexual assault training now required for new federally appointed judges,” CBC News, 7 May 2021, https://www.cbc.ca/news/politics/law-training-sexual-assault-1.6017711#:~:text=A%20long%2Dawaited%20bill%20requiring%20that%20new%20judges%20agree%20to,third%20reading%20in%20the%20Senate.
[8] Graveland, Bill. “Judge in 'knees together' case admits 'non-existent' knowledge of criminal law,” The Edmonton Journal, 12 September 2016, https://edmontonjournal.com/news/local-news/judge-in-knees-together-case-admits-non-existent-knowledge-of-criminal-law
[9] Byfield, Ted. "Supreme Court now telling us what sexism is," The Financial Post, 15 January 1944, box 58, file 13, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[10] Côté, Andreé, except from Criminologie 24.2 (1996) box 34, file 4, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[11] Côté, Andreé, Diana Marjury and Elizabeth Sheehy. “Stop Excusing Violence Against Women: NAWL’s Position Paper on the Defence of Provocation,” April 2000, Pub_Report_Provoc00_en.pdf (nawl.ca)
[12] National Association of Women and the Law, “Notes on resolutions passed in discussion workshop,” January 1975, box 2, file 2, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[13] National Association of Women and the Law, “Draft of Submission on proposed legislation governing access to complainants’ records in sexual assault trials,” March 1996, box 25, file 7, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[14] National Association of Women and the Law, “Rape Shield Provisions Upheld,” 2 February 2001, https://nawl.ca/rape-shield-provisions-upheld/
[15] NAWL Press Release, “Supreme court dodges the issues in records decisions, women’s groups claim,” 14 December 1995, box 25, file 6, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.