Equality Rights and the Charter: Reconceptualizing State Accountability for Ending Domestic Violence

Abstract

Given that law as the major terrain of state reform and of much feminist advocacy in relation to domestic violence, how is it that this prominent and concrete expression of gender inequality has been largely untouched by a direct constitutional equality rights challenge in Canada? Why has section 15 of the Canadian Charter of Rights and Freedoms been virtually dormant in relation to the specific legal reforms undertaken to respond to domestic violence and in relation to the broader political and legal challenges around this issue? An equality rights analysis has infused much significant legal reform work in the area of sexual violence, most especially regarding sexual assault law, yet in terms of the violence perpetrated against women in their intimate adult relationships (“domestic violence”) there has not to date been a direct constitutional challenge based on the section 15 equality provision of the Charter.

In this paper I outline the nature of the gendered problem of domestic violence within an equality framework. I then outline in broad terms the kinds of initiatives that need to be undertaken in order to move towards eradicating violence against women in intimate relationships. I juxtapose the kinds of redress and remedies needed against the inadequate conceptual framework offered by the current legal approach to equality articulated by the Supreme Court of Canada. Finally, I offer some initial and broad suggestions about what some possible legal strategies might look like which engage equality and other Charter rights to address and end the problem of domestic violence in women’s lives. Specifically, I suggest that even though the opportunity of posing a direct section 15 challenge in relation to domestic violence has yet to materialize or be seized, the failure of state action in this area - the absence of adequate legal protections for assaulted women - poses a violation of a number of Charter rights that should be actionable.

These suggestions for legal claims are necessarily ambitious and difficult, given the current state of the law, and given the Supreme Court’s tendency to treat the remedying of certain social problems as not justifiable. But in spite of how formidable the challenges might be, I offer these considerations as part of a dialogue on how to advance towards the realization of substantive equality for women in Canada and how law might play a significant, if partial, role in that advance.