Federalism, Equality and Autonomy: Toward an Embedded Feminist Constitutional Agenda
11 Pages Posted: 24 Aug 2014
Date Written: August 22, 2014
There are no doubt thousands of pathways, direct and indirect, by which constitutions work to enforce and to unsettle the institutions, practices, and understandings that regulate social status of men and women.
In October 2005 the Supreme Court of Canada rendered its decision in Reference Re Employment Insurance Act (Can.), ss. 22 and 23. The Court had been called upon to determine the constitutionality of the maternity and parental leave benefits regime, in place in Canada since 1971, on division of powers grounds. The manner in which the question had been posed to the Court had caused considerable concern, primarily amongst Canadian feminists, and activists within the labour movement. Since the mid-1990s there have been numerous efforts to challenge the way in which the benefit was delivered using the Canadian Charter of Rights and Freedoms on the basis that its eligibility requirements were discriminatory. Yet, the question that ultimately wound its way to the highest court in Canada did not ask the justices to contemplate whether the benefit, as structured, enhanced the equality of women and other caregivers. They were asked solely to determine which body in Canada's federal system, the provinces or the federal government, had jurisdiction over this benefit regime.
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