As Bertha Wilson, the first woman appointed to Canada’s Supreme Court, said: “Change in the law comes slowly and incrementally; that is its nature. It responds to changes in society; it seldom initiates them.” For decades, glaciers moved more quickly than the lot of women under Canadian law. Then, seemingly out of nowhere, comes the “landmark” case that turns the world on its head. Sometimes it’s a clear, triumphant victory, and sometimes the big cases capture attention and outrage because the court does not respond to changes in society.
What was it that pushed these women, even when their lawyers said their fight was hopeless?
Somewhere, lost in the legal verbiage behind those landmark cases, is a woman who decided, late one night, after her partner had knocked her about one time too many, or after she got nowhere with her fifth polite letter to someone in an office in Ottawa, or after she was arrested, or after she simply had had enough of whatever, decided to push back, put herself on the line, and fight for a change in the law. That’s what and who this book is about, those stubborn, bold women who plunged in. Few, if any, of the women behind the cases in this book—neither the lawmakers nor the lawbreakers—would have had any idea of what they were letting themselves in for, what getting on the witness stand would mean, how the years of appeals and delay would wear on them. They were certainly not expecting the public attention and, often, criticism, that followed them. Nor could they have anticipated that the process would take on a life of its own, often leaving them alone and on the sidelines. Going to court or being taken to court, if she was a witness or charged with an offence, was sometimes fatally difficult.
Somewhere, lost in the legal verbiage behind those landmark cases, is a woman who decided, late one night, after her partner had knocked her about one time too many, or after she got nowhere with her fifth polite letter to someone in an office in Ottawa, or after she was arrested, or after she simply had had enough of whatever, decided to push back, put herself on the line, and fight for a change in the law.
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What would it have been like for that woman who was trying to convince a jury in a tiny courthouse in Nova Scotia that it was self-defence when she killed her partner? Or for the young woman walking into the palais de justice in small-town Quebec to argue that it was her choice, not his, to have an abortion? What would the woman who sat watching from the gallery of the Supreme Court of Canada have been thinking as nine white, black-robed men determined whether she could be a Status Indian after she married a white man? What was it that pushed these women, even when their lawyers said their fight was hopeless? Law in Canada is made by both the courts and the legislatures. There is constant tension between the two and frequent condemnation of “activist” courts. “Appointed” judges, it is reasoned, should not overturn decisions of elected parliamentarians. But then there are issues that are too politically hot for elected members of Parliament: Are women persons? Could anyone other than the pregnant woman veto an abortion? It was the courts, spurred on by pushy women, not parliament, that settled those questions. We owe them.
It was the courts, spurred on by pushy women, not parliament, that settled those questions. We owe them.
Not surprisingly, all but one of the cases discussed in this book spring from marriages and sex. If a marriage ended—and for decades, not many did—for one thing, women were dependent on their husbands for support. The other reality was that divorce, for a woman, was hard to come by. Her grounds for divorce were limited. A woman who managed to circumvent, if not definitively change, the law—like Eleanora Tudor-Hart—must have been exceptional. How did she manage to hold on to her children (divorced women usually lost custody) and divorce her philandering husband at a time when no other women could?
Who was Irene Florence Murdoch, the Alberta woman who fought for half the ranch where she had laboured? And why was she so damn tenacious? Then there’s Stella Bliss, the Vancouver hippie in a flowered dress who needed her hundred-and-something dollars a week in government maternity benefits to stay afloat. Little did she know it, her fight for maternity benefits would redefine women’s equality under the Charter of Rights. How did that happen? These women are the accused, complainants—what some would call victims, and plaintiffs. All of them, because they went to court, changed some aspect of the lives of women in this country.
How did that happen? These women are the accused, complainants—what some would call victims, and plaintiffs. All of them, because they went to court, changed some aspect of the lives of women in this country.
The law can be a blunt instrument. The consensus is that these days, society expects more of a solution-oriented form of justice, a justice system that is less adversarial, where winners and losers give way to common lessons learned. Nonetheless, judges and juries can, should, and do change the law, and women and their lawyers must and will continue to advocate.
“Who was the woman trying to convince a jury in a tiny courthouse in Nova Scotia that it was self-defense when she killed her partner; and who was the young woman walking into the palais de justice in small-town Quebec arguing that it was her choice, not his, to have an abortion? What was it that pushed these women on, even when the lawyers said it was hopeless?”
From the award-winning author of The Abortion Caravan and More Than a Footnote, Karin Wells once again pulls us into the lives—and this time, the legal trials—of a group of women integral to the advancement of women’s rights in Canada. Eliza Campbell, Chantale Daigle, Jeannette Corbiere Lavell—these Women Who Woke Up the Law often had no idea what they were facing in the courts, or the price they would have to pay. Some never saw justice themselves, but they left a legal legacy. Their bold determination is something we need now more than ever to guard the hard-won gains in women’s rights.
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