Feminist Argumentation Before the Supreme Court of Canada in R. v. Seaboyer; R. v. Gayme: The Sound of One Hand Clapping
Elizabeth Sheehy, “Feminist Argumentation Before the Supreme Court of Canada in R. v. Seaboyer; R. v. Gayme: The Sound of One Hand Clapping” (1992) 18 Melbourne University Law Review 391 450.
19 Pages Posted: 5 Jun 2013
Date Written: 1992
The Canadian Charter of Rights and Freedoms and, more specifically, the sections which 'guarantee' equality, sections 15 and 28, present Canadian feminist litigators with a unique opportunity to articulate women's realities within a constitutional framework and to demand a legal response. The recent decision of the Supreme Court of Canada in R. v. Seaboyer; R. v. Gayme makes it plain, however, that the right to speak and make an argument does not include a corresponding obligation on the part of judges to listen, to understand, or even to answer feminist analysis.
The case law decided pursuant to the Charter attests to the prescience of those Canadian academics who articulated a critique of Charter rights. These authors warned that the Charter would prove most advantageous to the interests already served by law, to those with wealth and wherewithal to use legal means, and to those whose 'rights' in fact present little by way of challenge to our economic and political structures. Furthermore, they predicted that legislative gains achieved through the democratic process such as social welfare legislation, workplace safety laws and collective bargaining rights would become vulnerable to Charter challenge, and that our ability to recover from such losses would be extremely limited given that other forms of political struggle have been weakened by the emphasis on the Charter.
The negative implications of the Charter are starkly illustrated in the area of women's rights. Feminist litigators have had an influence upon the shape of equality doctrine as it emerges from the Supreme Court and there have been several victories which benefit women. However, not one of the successful cases was decided in reliance upon women's section 15 equality rights. The narrowness of those cases and the overall patterns of Charter litigation suggest that the gains which women have made through the political process are in jeopardy.
In this comment, I roundly criticize the majority opinion in Seaboyer, both in terms of result and in terms of failure to grapple with the challenging feminist arguments put to the court. I argue that the result in Seaboyer is reflective of larger patterns of Charter outcomes which are shaped by, among other things, the underlying structures of the criminal trial and the Charter itself. This is not to suggest that feminists should disengage altogether from Charter litigation: we do not have much choice other than to defend legislative gains against Charter challenge and Charter test cases may be one of several significant strategies available to oppose repressive laws and policies. I am, however, arguing that the structures and patterns of Charter litigation pose significant limitations on what we can achieve or preserve through this avenue. And, while our efforts in this regard will provide valuable lessons for our future strategies, in some areas of the law - and rape may well be one of them - decisions like Seaboyer may demand that we shift our focus away from reliance on litigation, and perhaps away from law altogether, in light of these constraints.
Keywords: section 15, equality rights, Charter, section 28, R. v. Seaboyer, R. v. Gayme, feminist analysis, shape of criminal trial, restraints of law, Charter as limiting
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