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Multidimensionality and the Matrix: Identifying Charter Violations in Cases of Complex Subordination

Published online by Cambridge University Press:  18 July 2014

Kerri A. Froc
Kerri A. Froc
Affiliation:
University of Ottawa, [email protected]
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Abstract

The failure of the Supreme Court of Canada to give more than lip service to “context” when considering claims under s. 15 of the Canadian Charter of Rights and Freedoms arises largely from the Court's analytic framework, which resists recognizing the social relations of power inherent in complex cases of oppression. The precise nature of the flaws in the Court's analysis is demonstrated in a number of thoughtful feminist critiques that received recognition in the recent decision in R. v. Kapp. While it is too soon to tell whether the Court intends to depart completely from the past decade of s. 15 jurisprudence, equality-seeking groups now have greater opportunities to advance alternative theoretical frameworks for Charter interpretation. This article discusses one such framework, multidimensionality theory, which focuses on the interaction of systems of oppression, conceptualized as an invisible matrix—a vast network of complex, overlapping, interactive, and mutually reinforcing systems. The operation of the systems obscures their effects, and their complexity renders outcomes difficult to predict when they interconnect at sites of subordination and privilege. One can expose the operation of the systems by looking at particular sites of oppression/privilege and considering the contradictions or “inexplicability” of the circumstances based on one system alone. The author argues that the failure of the Charter claim at the heart of the Supreme Court's decision in Native Women's Association of Canada v. Canada demonstrates the need for courts to employ multidimensionality theory in cases of complex oppression. In NWAC, multidimensionality theory reveals that the “dominant” Aboriginal groups were involved in the negotiation/performance of hegemonic masculinities within a racial/colonial context that provided them with justification to suppress NWAC's independent promotion of the interests of Aboriginal women in constitutional negotiations with the government, and that the government was complicit in this performance. By framing the freedom of expression issue as whether NWAC had a “special” right to a speaking platform, and the equality issue as exclusively one of determining whether NWAC could prove the other groups were “male dominated,” the Court fragmented considerations of patriarchy from those of racism and colonization, distorting the synergistic effect of the systems of oppression and reinforcing colonial ideology.

Résumé

L'incapacité de la Cour suprême du Canada de tenir vraiment compte du « contexte » lorsqu'elle considère les demandes sous l'article 15 de la Charte canadienne des droits et libertés découle, en grande partie, de son cadre analytique, soit un cadre qui rejette le concept des relations sociales de pouvoir dans les cas complexes d'oppression. Les contraintes de ce cadre analytique ont été soulignées dans un certain nombre de critiques féministes importantes, soit des critiques ayant eu un impact sur la décision récente R c. Kapp. Bien qu'il soit encore trop tôt pour déterminer si la Cour a l'intention de se départir du type de jurisprudence de l'article 15 caractéristique de la dernière décennie, les groupes faisant la promotion de l'égalité ont désormais de meilleurs chances de mettre de l'avant des cadres théoriques alternatifs dans l'interprétation de la Charte. Cet article explore l'un de ces cadres théoriques : la théorie de la multidimensionnalité. Cette théorie examine les interactions des systèmes d'oppression, à savoir des systèmes conceptualisés comme une matrice invisible ou encore comme un réseau de systèmes complexes et interactifs qui se chevauchent et se renforcent mutuellement. Selon cette perspective, les manifestations des systèmes d'oppression sont obscurcies par leur fonctionnement tandis que la complexité de ces systèmes rend leurs manifestations difficiles à prévoir lorsque ceux-ci interagissent entre eux dans des situations impliquant des subordinations et des privilèges. Il est possible d'exposer le fonctionnement de ces systèmes en examinant les situations particulières d'oppression et de privilège et en considérant les contradictions qui existeraient si de telles conséquences découlaient d'un seul système. Selon l'auteur, l'échec de la Cour suprême du Canada dans la poursuite de l'Association des femmes autochtones du Canada c. Canada représente une preuve que les cours ont besoin d'employer la théorie de la multidimensionnalité dans les cas complexes d'oppression. La théorie de la multidimensionnalité révèle comment les groupes autochtones dominants étaient impliqués dans la négociation ainsi que la performance des masculinités hégémoniques dans un contexte racial et colonial. Ce contexte servait à justifier la suppression des efforts de l'AFAC, à savoir la promotion des intérêts des femmes autochtones au sein des négociations constitutionnelles avec le gouvernement. Ce cadre théorique révèle aussi la complicité du gouvernement dans cette suppression. En interprétant la notion de liberté d'expression comme fondée sur le besoin de déterminer si l'AFAC avait des droits « spéciaux » de faire des revendications et en interprétant la notion d'égalité comme étant exclusivement le besoin de déterminer si l'AFAC était capable de prouver que les autres groupes étaient dominés par les hommes, la Cour a écarté les considérations patriarcales des considérations raciales et coloniales, provoquant ainsi une déformation des effets synergiques des systèmes d'oppression et renforçant l'idéologie coloniale.

Keywords

multidimensionalityintersectionalityequalityAboriginal women“hegemonic masculinity”Multidimensionnalitéintersectionnalitéégalitéfemmes autochtonesmasculinité hégémonique
Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 25 , Issue 1 , April 2010 , pp. 21 - 49
Copyright
Copyright © Canadian Law and Society Association 2010

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References

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46 Arriola, “Gendered Inequality,” 138.

47 [1995] 2 S.C.R. 513 at 601.

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64 NWAC president Gail Stacey-Moore, in her affidavit before the Court, noted that this was part of a historical pattern of exclusion. With respect to the 1992 Charlottetown constitutional consultations specifically, she described how she was included in the AFN's Constitutional Working Group, but only in circumstances in which she was a “minority voice.” There were also issues surrounding AFN's withdrawal of an offer to give money to NWAC for a women's conference as part of the consultations and NWAC's having to fight to secure a small number of delegates to the other scheduled conferences. NWAC (Evidence, Affidavit of Gail Stacey-Moore, Case on Appeal) at paras. 77, 82–84.

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77 NWAC (Evidence, Affidavit of Gail Stacey-Moore, Case on Appeal) at para. 28.

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81 As Stacey-Moore stated in her affidavit, “if there is one group which represents us as off-Reserve Aboriginal women, exiles in our own land, it is NWAC.” NWAC (Evidence, Case on Appeal) at para. 32.

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84 The UN Human Rights Committee found that s. 12(b) of the Indian Act breached art. 27 of the Covenant on Civil and Political Rights, which requires that persons belonging to ethnic, religious, or linguistic minorities not be “denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”: Lovelace v. Canada, Report of the Human Rights Committee, UN GAOR, 36th Sess., Supp. No. 40, Annex 18, 16, UN Doc. AQ/ 36/40(1977).

85 An Act to amend the Indian Act, S.C. 1985, c. 27. See Mclvor, Sharon, “Self Government and Aboriginal Women,” in Ten Years Later: The Charter and Equality for Women, ed. Jackson, Margaret A. and Banks, N. Kathleen (Vancouver: Simon Fraser University, 1996), 170Google Scholar, on the impact of the coming into force of Charter s. 15.

86 Green, Joyce, “Constitutionalizing the Patriarchy: Aboriginal Women and Self-Government,” Constitutional Forum 4, 4 (1993), 113Google Scholar. The remaining discriminatory aspects, including the failure to extend full status to descendants of a matrilineal ancestor who lost status under the old legislation, were successfully challenged by Sharon Mclvor: Mclvor v. Canada, cited at note 65 above.

87 Green, “Constitutionalizing the Patriarchy”; Isaac and Maloughney, “Dually Disadvantaged and Historically Forgotten,” paras. 26–27.

88 Green, ibid. In the midst of this litigation, the court granted a mandatory interlocutory injunction requiring the Sawridge band to reinstate 11 women to their band list (Sawridge Band v. Canada, 2003 FCT 347, aff'd 2004 FCA 16). Eventually, the action was dismissed (2008 FC 322, aff'd 2009 FCA 123) because the plaintiffs decided not to call further evidence, and proceeded to the Federal Court of Appeal on an unsuccessful application for the trial judge to recuse himself on the basis of bias. Massive cost awards were made against the plaintiffs in favour of the Crown, NWAC, and other interveners as a result of the plaintiffs' conduct during the litigation.

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90 There was no dissent in NWAC. L'Heureux-Dubé J. disagreed with the majority analysis while concurring with the disposition of the case on the facts. McLachlin J. also wrote an extremely short concurring opinion on the basis that the Charter does not apply to the “freedom of governments to choose and fund their advisors on matters of policy.” NWAC at para. 91.

91 Ibid.

92 Ibid, at para. 23.

93 Two bedrock texts of legal feminism on this point are Williams, Susan, “Feminist Legal Epistemologies,” Berkeley Women's Law Journal 8 (1993), 6Google Scholar; and MacKinnon, Catharine, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987)Google Scholar.

94 Lawrence, Charles III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” Duke Law Journal (1990), 474Google Scholar, advances the argument that expression and equality are read hierarchically in dominant culture—namely, expression is included in the “regular” rights of “everyone,” whereas equality is a “special right” for “a minority of different people.”

95 NWAC at paras. 44, 45.

96 [1993] 2 S.C.R. 955 at 1041–42 [Haig], cited in NWAC at 655 [emphasis added].

97 L'Heureux-Dubé J. was hardly a proponent of a “watertight compartments” approach to Charter rights, as this excerpt might suggest. She concurred in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 195, where Mclntyre J. stated (representing the majority on this point) that “[t]he section 15(1) guarantee is the broadest of all guarantees. It applies to and supports all other rights guaranteed by the Charter.”

98 NWAC at para. 86.

99 Ibid, at para. 50.

100 See Thobani, , Exalted SubjectsGoogle Scholar, and in particular her searing analysis in chapter 5 (“Reforming Canadians: Consultations and Nationalizations”), where she outlines how the Canadian public was constructed as white during two consultations on immigration and social security policy in the mid-1990s.

101 NWAC at para. 50.

102 Ibid. at paras. 53, 54, 55.

103 In the rewritten NWAC decision by Sharon McIvor, Teressa Nahanee, and Mary Eberts (part of the Women's Court of Canada Project, Canadian Journal of Women and the Law 18, 1 (2006), 67Google Scholar, the authors also maintain that it is a matter of constitutional obligation pursuant to s. 35.1 of the Constitution Act, 1982, that federal and provincial governments consult “representatives of aboriginal peoples of Canada” before any constitutional amendments relating to the rights of Aboriginal peoples are made.

104 NWAC at para. 53. The falsity of the symmetry is not only its construction of men as the “subordinated” group when it comes to the abortion issue but also its assumption that biological “fathers” of embryos have an equal, but opposing, legal interest in the decision as to whether to terminate a pregnancy. This reasoning was rejected in Tremblay v. Daigle, [1989] 2 S.C.R. 530.

105 NWAC at para. 57.

106 Ibid. at para. 75.

107 The Court first considered this question as part of the s. 2(b) argument but later identifies it as “relat[ing] more closely to an equality argument under s. 15” and as “better characterized as a s. 15 Charter argument” (at paras. 58, 76). In its three-paragraph decision on s. 15, the Court further states that “[t]he lack of evidentiary basis for the arguments with respect to ss. 2(b) and 28 is equally applicable to any arguments advanced under s. 15(1) of the Charter in this case” (at para. 78). Therefore, I believe that the Court considered whether the four funded groups were “male dominated” as part of the s. 15 argument proper.

108 Ibid. at paras. 59, 66.

109 Ibid. at para. 59.

110 Pinard, Danielle, “Institutional Boundaries and Judicial Review—Some Thoughts on How the Court Is Going About Its Business: Desperately Seeking Coherence,” Supreme Court Law Review (2nd ser.) 25 (2004), 222Google Scholar.

111 See NWAC at para. 62: “To the best of Ron Rivard's [executive director of MNC] knowledge, NWAC does not speak for, nor represent the Metis women of Canada.”

112 It is not that the number of women in organizations is unimportant in considerations of inclusiveness but, rather, that in addition to imposing differing evidentiary standards, the Court did not conduct a probing analysis of how Aboriginal women raising gender issues were treated within the funded groups. Further, a “numbers count” in isolation does not recognize the fact that NWAC represents a marginalized and disenfranchised group of Aboriginal women whose exclusion has a particular and gendered consequence for the negotiations. In contrast to the Supreme Court's scepticism, the Federal Court of Appeal emphasized NWAC's role as a “grassroots organization founded and led by aboriginal women” and its record of national activism as the “recognized national voice of and for aboriginal women”: [1992] F.C.J. No. 715 at para. 3 [NWAC (FCA)].

113 To bolster the thin evidence on the record, the Court resorted to citing, as proof of the funded groups' representativeness, a letter from Constitutional Affairs Minister Joe Clark to NWAC seeking to convince them that “[t]he national Aboriginal associations do represent both men and women from their communities. I encourage you to work within your communities to ensure your views are heard and represented through those associations” (NWAC at para. 67).

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116 Affidavit of Gail Stacey-Moore, cited in NWAC (FCA) at para. 91.

117 NWAC (FCA). Razack raises this decision as “reveal[ing] the perils for Aboriginal women raising issues of violence within their communities while under the gaze of white society—a society engaged in drafting a constitution without recognition of Aboriginal self-determination”: Razack, Sherene, Looking White People in the Eye (Toronto: University of Toronto Press, 1998), 62Google Scholar.

118 Thobani, , Exalted Subjects, 44Google Scholar, also discusses how international law justified the conquest of Canada's Indigenous peoples on the basis that the “savage” and “uncivilized” were “incapable of self-determination.” Chartrand, Larry, “The Political Dimension of Aboriginal Rights” (LLM thesis, Queen's University, 2001), 38Google Scholar, argues that Aboriginal peoples and Europeans initially negotiated nation to nation and that the colonialist ideology of Aboriginal inferiority re-emerged only when Aboriginal communities were weakened by disease and European immigration increased.

119 See Razack, Sherene, Dark Threats and White Knights: The Somalia Affair, Peacekeeping and the New Imperialism (Toronto: University of Toronto Press, 2004), 62Google Scholar (noting that racial/colonial domination has a stabilizing effect on both personal and national identity).

120 See, e.g., Cairns, Alan C., Charter versus Federalism: The Dilemmas of Constitutional Reform (Montreal: McGill-Queen's University Press, 1992)Google Scholar, on the role of the Charter in nation building and creating an enhanced sense of Canadian (as distinct from British/French) citizenship. I acknowledge that the constructions of “nationhood” in First Nations communities are much different than Western constructs: Napoleon, Val, “Extinction By Number: Colonialism Made Easy,” Canadian Journal of Law and Society 16 (2001), 113CrossRefGoogle Scholar. However, eliminating definitions of nationhood imposed by colonization and replacing them with self-definitions would require negotiations with federal/provincial governments over self-determination and constitutional amendment. To that extent, I would argue, this would be a relationship between nationhood and constitutional discussions for Aboriginal peoples as well.

121 I am also reminded here of how governments attempted to exclude women, and specifically Aboriginal women who articulated their concerns about whether the equality guarantee would adequately protect them, from the process of negotiating the terms of the Charter: Kome, Penny, The Taking of 28 (Toronto: Women's Press, 1983)Google Scholar.

122 This is not to say that the actual gender identities of the group leaders were all male; in fact, the ITC president was a woman. The point, rather, is that the Western paradigm inherently relies on a construction of political leadership that is white and male—“political power that enables control over others” is one of the privileges of hegemonic masculinity: Angela P. Harris, “Gender, Violence, Race, and Criminal Justice,” 783–84. See also Laroque, Emma, “Métis and Feminist: Ethical Reflections on Feminism, Human Rights and Decolonization,” in Making Space for Indigenous Feminism, ed. Green, Joyce (Winnipeg: Fernwood Publishing, 2007), 66Google Scholar (on the paradox of Canadian anti-colonial movements maintaining non-traditional, gendered distributions of political power).

123 NWAC at para. 65.

124 Ibid. (Evidence, Case on Appeal, Exhibit M to the Affidavit of Gail Stacey Moore) at 279–82.

125 Ibid.

126 Ibid. at 285.

127 NWAC at paras. 62, 63, 64.

128 Cardinal, , Rebirth of Canada's Indians, 111Google Scholar.

129 As Patricia Monture states, “Understanding how patriarchy operates in Canada without understanding colonization is a meaningless endeavour from the perspective of Aboriginal people. The Canadian face is the invisible male perpetrator who unlike Aboriginal men does not have a victim face.” Monture, , Thunder in My Soul, 175)Google Scholar.

130 See the letter from Joe Clark, cited at note 126, regarding evidence of the government's complicity in marginalizing NWAC within constitutional negotiations.

131 Turpel, Mary-Ellen, “Patriarchy and Paternalism: The Legacy of the Canadian State for First Nations Women,” Canadian Journal of Women and the Law 6 (1993), 181Google Scholar.

132 Anderson, , A Recognition of Being, 97Google Scholar.

133 At first blush, this may seem contradictory to my argument that gender subordination is used to justify engaging in and perpetuating colonization. However, the distinction is in the use of women's bodies to script Western notions of civilization, which does not require an actual commitment by the colonizer to provide conditions of equality for racialized women—indeed, such a commitment is proscribed by the performance of hegemonic masculinity.

134 Kerri A. Froc, “Will Watertight Compartments Sink Women's Charter Rights? The Need for a New Theoretical Approach to Women's Multiple Rights Claims under the Canadian Charter of Rights and Freedoms” (LL.M. major paper, University of Ottawa, 2008)Google Scholar.

135 Williams, Susan, Truth, Autonomy, and Speech: Feminist Theory and the First Amendment (New York: New York University Press, 2004)Google Scholar.

136 Ibid., 160.

137 Ibid., 153, 161, 209, 212. In the Canadian context, Richard Moon has also advocated for an understanding of expression as relational and constitutive (i.e., having an effect on thoughts and perceptions): Moon, Richard, “The Relationship of Communication,” in The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000), 40–49Google Scholar.

138 That the control over construction of identity is a key aspect of reinstated women's legal struggle is supported by a study quoted by John Borrows, who notes that the primary reason people applied for registration as status Indians in the aftermath of Bill C-31 was personal identity (41%), and that 77% of those whose status was restored were women: Borrows, John, “Contemporary Traditional Equality: The Effect of the Charter on First Nation Politics,” University of New Brunswick Law Journal 43 (1994), 34Google Scholar.

139 NWAC at para. 66: “Thus, it was not exclusively the position of NWAC that the Charter be maintained.”

140 Ibid. at para. 71. As the Court itself recognized, the allocation of money for “women's issues” was not voluntary on the part of the funded groups, but required by the funding agreement with the government.

141 The Court notes at para. 69 that NWAC was able to express itself “directly to the Government” by making submissions to the Beaudoin-Dobbie Committee. The recent “rewriting” of NWAC by Sharon McIvor et al. as part of the Women's Court of Canada project highlights the disparity even in this forum: the committee spent a day with each of the funded groups, whereas NWAC was limited to written submissions. McIvor et al., para. 25.

142 Monture, , Thunder in My Soul, 217Google Scholar.

143 See, e.g., Borrows, John, “Listening for a Change: The Courts and Oral Tradition,” Osgoode Hall Law Journal 39 (2001), 1Google Scholar.

144 In the words of Edward Said, “[S]tories … become the method colonized people use to assert their own identity and the existence of their own history … As one critic has suggested, nations themselves are narrations”: Said, Edward, Culture and Imperialism (New York: Vintage, 1993), xiiiGoogle Scholar. The potency of language in subverting colonialism was recognized by the state in the Canadian residential school context, where students were punished harshly for speaking Indigenous languages: Chrisjohn, Roland D. and Young, Sherri L., The Circle Game: Shadows and Substance in the Indian Residential School Experience in Canada (Penticton, BC: Theytus, 1997), 31–33Google Scholar; Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Indian and Northern Affairs Canada, 1996), 372Google Scholar.

145 Anderson, , A Recognition of Being, 130–33Google Scholar, discusses Indigenous stories, particularly those pertaining to women, and the respectful manner in which women are addressed in Indigenous languages as colonial resistance.

146 Joyce Green speaks of the fact that Aboriginal women seeking to advance their human rights are accused of “betraying the cause of Aboriginal liberation by invoking colonial, Western, white or feminist analysis and remedies” and are subsequently defined as “non-community members, and therefore voiceless”: Green, Joyce, “Canaries in the Mines of Citizenship: Indian Women in Canada,” Canadian Journal of Political Science 34 (2001), 729CrossRefGoogle Scholar. This was NWAC's predicament in the case before the Court.

147 See Williams, Susan, “Democracy Theory, Feminist Theory, and Constitutionalism: Models of Equality and the Challenges of Multiculturalism” (Paper presented to the International Conference of Feminist Constitutionalism, February 2009)Google Scholar, for further elaboration of the process that governments may follow to ensure that internal vulnerable minorities within what Williams calls “minority cultural groups” are not harmed in implementing self-determination.

148 See note 90 above for the articulation of this principle by McLachlin J. (as she then was). Sopinka J. also quoted with approval a passage from American case law stating that a government has “freedom to choose its advisors.” NWAC at para. 56.

149 Green, Joyce, “Balancing Strategies: Aboriginal Women and Constitutional Rights in Canada,” in Making Space for Indigenous Feminism, ed. Green, Joyce (Winnipeg: Fernwood Publishing, 2007), 148Google Scholar.

150 R.S.C. 1985, c. H-6. S. 3.1 was added in 1998.

151 [1998] 1 S.C.R. 493 at para. 82.

152 [1999] 2 S.C.R. 203.

153 While sex discrimination was not addressed directly in Corbiere, the selection of this “intersectional” ground had direct implications for Aboriginal women, given their history of expulsion from reserves under the discriminatory “marrying out” provisions of the Indian Act.

154 Law. at paras. 93, 94.