Equality Rights and the Charter: Reconceptualizing State Accountability for Ending Domestic Violence
| Author | Melanie Randall |
| Pages | 275-317 |
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Equality Rights and the Charter:
Melanie Randall
e entry of feminists into law has turned law into a site of struggle rather
than being taken only a s a tool of struggle.
A. INTRODUCTION
e state’s major response to the problem of violence against women in
intimate relationships — what is most commonly described as “ domestic
violence” — has been a legal one. Wh ile government initiatives have taken
place on other fronts as wel l, through for example, the f unding of shelters
for assaulted women, the commissioning of reports and the provision of
other victi m services, the mai n and most comprehensive site of state in-
tervention and response ha s been through law. is legal response largely
began with d irectives mandating that police arrest those suspected of per-
petrating “domestic violence,” and that Crowns prosecute these cases,
and progressed to legal reforms in the crimina l justice system including
the more recent establishment of specialized courts exclusively focusing on
domestic violence throughout many Canadian jurisdictions.
In addition to law reform a s a response to violence against women,
some branches of the state have a cknowledged — even if in an incomplete
and rudimentary manner — that domestic violence is a gender issue, and to
this extent, have recognized its implication in the larger problem of gender
inequality. Whi le this linking of domestic v iolence a nd gender remains
contested it is signicant that it has been ocially adopted in various state
pronouncements and this insight is certainly central to feminist a ctivist
and scholarly work in this area.
How is it, then, g iven law as the major terrain of state reform and of
much feminist advocacy in relation to domestic violence, that this promi-
nent and concrete expression of gender inequality has been largely un-
touched by a direct Charterequalityrightschallenge? Why ha s section
been virtually dormant in relation to the specic legal reforms under-
taken to respond to domestic violence and in relation to the broader politi-
caland legalchallengesaroundthisissue?Anequalityrightsanalysishas
infused much signicant legal reform work in the area of sexual violence,
most especia lly regarding sexual assault law, yet in terms of the violence
perpetrated against women in their intimate adult relationships (“domes-
tic violence”) there has not to date been a direct constitutional challenge
based on the section equality provision of the Charter.
ere has, in fact, been extensive legal reform in relation to criminal law
governing sexual assault and the direct impact of a feminist-inspired gen-
der analysis a nd section Charter equa lity rights in t his area. Advocates,
academics, and policy-makers have been both successf ul and inuential in
having courts (and the legislature) address equality concerns in sexual as-
sault law, including in challenging the traditional reliance on corrobora-
tion, the use of past sexual history, and the use of third par ty records.
While the successes are in no way complete, and while the treatment of
sexual assault surv ivors in the criminal justice system remains highly prob-
lematic, this does not negate the f act that some signicant and positive le-
gal developments have taken place in relation to equality concerns in sexual
assault law.
Given, then, that much eort to redress women’s subordination ha s
taken place in the area of equality rights in law, and given that a core feature
of this gender subordination is intimate violence aga inst women, it seems a
paradox that the legal guarantee of equality enshrined in the Charter has
barely been expressly activated in this str uggle, at least not in any direct and
explicit way. But in thin king about what such a lega l challenge would look
like, the diculties become ever more evident. is is largely because the
direction of equalit y rights interpretation taken by the Ca nadian Supreme
Court suggests an ever narrowing of the possibilities for capturing the nature
and complexities of discrimination and inequality, particularly within the
restrictive connes of the Law test and the restrictive judicial lens th rough
which many judges at the Supreme Court approach equality claims.
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inking about how to engage an equal ity rights analysis under t he
Charter in relation to the complicated and seemingly intractable social, le-
gal, and political problems of violence against women in intimate relation-
ships, then, poses a series of questions and challenges. Of greatest conceptual
diculty is t hinking about how to frame the problem in terms of the ways
in which equality claims have been understood and analyzed i n Charter
jurisprudence. It appears, in fact, t hat there is an increasing disconnect be-
tween the actual contexts and conditions of lived gender inequality and
the arid application of legal tests for and approaches to recognizing it. at
the gendered problem of domestic violence and the legal terrain of equality
rights under the Charter have yet to make much direct or meaningfu l con-
tact, then, is perhaps less surprising than it would initially appear.
is argument is not intended to disparage the Charter or to be aligned
with those Charter critics (including those on the right and le), whom
Sheila McIntyre has so eectively excoriated in an analysis of “Feminist
Movement in Law.” I am not arguing that we should abandon the language
of rights or the struggle to push the limits of the Charter a t ev ery pos sibl e op -
portunity. But it does appear, as I elaborate more fully below, that the nature
of the specic problem of intimate gendered violence and abuse in women’s
lives, its complexity and its vastness (implicating so ma ny institutions and
social relations at the macro and micro levels), exceeds the restrictive — even
anemic?—scopeofCharter rights as they are currently interpreted.
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 ag ainst women in intimate relationships. I juxtapose
the ki nds of redre ss and remed ies needed a gainst t he inadequ ate conceptua l
framework oered by the current legal approach to equa lity articulated by
the Supreme Court. Finally, I oer some initial and broad suggestions about
what some possible legal strategies might look like which engage equality and
other Charte r rights to address and end the problem of domestic violence in
women’s l ives. Specically, I suggest that even though the opportunity of
posing a di rect section challenge in relation to domestic violence has yet
to materialize or be seized, the failure of state action in this area — the ab-
sence of adequate legal protections for assaulted women — poses a violation
of a number of Charter rights that should be actionable.
ese sug gestions for legal claims are necessarily ambitious and d i-
cult, given the current state of the law, and given the Supreme Court’s ten-
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