The Agenda with Steve Paikin (Audio) - The Forgotten Fighters for Women's Rights in Canada

Episode Date: March 8, 2025

Who are the people behind the cases that paved the way for women's rights in Canada today? Karin Wells shares their stories in her new book, "Women Who Woke Up the Law: Inside the Cases that Changed Women's Rights in Canada."See omnystudio.com/listener for privacy information.

Renew your 2.0 TVO with more thought-provoking documentaries, insightful current affairs coverage, and fun programs and learning experiences for kids. Regular contributions from people like you help us make a difference in the lives of Ontarians of all ages. Visit tvo.me slash 2025 donate to renew your support or make a first-time donation and continue to discover your 2.0 TVO. The rights of women enjoying Canada today often came as a result of hard-fought battles by women who came before them. But just as we tend to overlook Canadian history, many of those struggles and the real people who wage them aren't well known today. A new book from journalist and author Karen Wells brings many of those stories to life.

It's called Women Who Woke Up the Law, Inside the Cases That Changed Women's Rights in Canada, and it brings Karen Wells to our studio tonight. So nice to meet you. Nice to meet you. Terrific, terrific book. Thank you, thank you. I could not put it down.

Oh, lovely. So many great women. And also, it kind of made me aware of how soon some of this history is... Oh, it's outrageous. Right? It's just outrageous. The things that continued to go on for so many years. Yeah. And now these cases are truly monumental. Why don't more people know these stories? Legal cases tend to be a bit dry, you know, you kind of have to struggle through it all But the stories behind are really interesting

You know why these women put themselves out there and why they were so damn themselves out there and why they were so damn annoyed that they were going to press their point but those stories don't tend to get told often those women just want to forget about it all and go away again because I mean as you know from reading the book the they had a hard time it was there wasn't these weren't triumphant struggles, in particular. It wasn't the environment that we had a few years ago with like hashtag me too, where you get support from people around the world because we have a global community. And the way that you told the stories, you said that law can be boring,

but these stories are fascinating. The stories of the women are really fun. Not fun, they're intriguing. I wanted to read something that you wrote in the book. May I? Somewhere lost in the legal verbiage behind those landmark cases is a woman who decided late one night after her partner has 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. Changes in law can happen through the courts setting new precedents, but also through governments enacting new laws. How have those two different pathways been balanced throughout history? We have more legislation that provokes change now, I think. But what I found in digging around for this book is that what would happen was if you had a contentious issue that was

politically difficult and therefore politicians didn't want to go for the legislation, it took the court to make a decision that pushed things. And I'm thinking particularly of the Murdoch case. She was the ranch wife from Alberta who wanted a share of the ranch. She'd worked that ranch for 20 years. She'd dehorned cattle. She'd vaccinated. She'd pushed. She'd just worked her butt off. But only his name was on the deed. And the money too for the ranch was for her mother, right? And she had put some money in that was contentious. Was it really a loan or did she give it? And when the marriage broke up, and it broke up after he broke her jaw, she wanted that slice of the ranch.

She didn't just want a lump sum payment that you get with a divorce. And she dug in her heels. And all the way up to the Supreme Court, took five years, she lost. She did not get a thing. But the fact that she lost and the fact there was such an outcry from women's groups and not only urban eastern women, the women who were prominent at the time, but the conservative women's groups from Alberta, which is where she was from. There was such a push back that the legislation changed in every province in the country within about two

years. So it took the courts to push the legislation. And yeah, throughout her fight too, there was this idea that well this is what women do on the ranch, it's nothing exceptional. And as this case picks up momentum, the public perception awareness even changes. Well that's what made people angry. This comment from the court, she just did what any ranch wife would do. And I mean people hit the roof. Well do you think that the courts actually keep up with the court of public opinion? There's a nice line from Bertha Wilson who was the first woman who was appointed to the Supreme Court who basically said the two have to go in lockstep. And sometimes, often one gets ahead of the other.

Usually society gets ahead of the other. Usually, society gets ahead of the courts. Occasionally, the courts or legislation get ahead, and society can't handle it. And even like when we're talking about, I think a lot of women in those times, they depended on their husbands. Totally. Totally right.

And if you were to get divorced it was very salacious and scandalous. How do women fight to change divorce law in Canada? Well, I mean the book spans about 1863 till today looking at different issues along the way. So obviously times change with divorce which is where we start. This is just after Confederation, so 1870s, and in Ontario there was no divorce court. This became a political decision in terms of unifying the country, Quebec unifying with Ontario, Upper and Lower Canada. And Quebec would not permit

divorce under the strength of the Catholic Church, demanded you couldn't do that. Therefore John A. MacDonald was very very careful not to push for a divorce court because that could fracture a flimsy union. So I mean we didn't get a federal divorce act until 1968. Up till then, women in Quebec could not get a divorce, nor Newfoundland. So, they couldn't really fight in many ways. You had to be married, as you said, because you needed your husband to take care of you financially, etc. The children were his property at

that time. Women never got custody. So the two cases that I look at are where they were two women who basically put issues before the public and made people talk about it. I mean this little Eliza Campbell who married a very conservative hair shirt Protestant Scottish immigrant who'd come from Scotland to Whitby and he decided she was messing around on him. She wasn't. He spied on her and he brought an action for criminal conversation which meant sleeping with another man's wife against a young man. And that was on the books until 1970?

Yeah, I didn't know that. That is shocking because that is like, you know, our time. It was so soon in the history books. Yeah. There's a lot of stuff that's like that. I mean, when I went to law school, the Murdoch case had not yet been decided and women didn't have the right to have the matrimonial property that was acquired during the course of marriage. But no, I mean all women could do at that point in terms of divorce was take their case to the Senate. And in

Ontario at the time when Eliza Campbell fought against her divorce, her husband wanted to divorce her and get rid of her, only four couples had ever been divorced. And was it the guy, the man who initiated it? It was the instigation of the man. Of course. When Canada became a country, women were not legally considered persons. How did that change? No, well that was Emily Murphy. Emily Murphy and Nellie McClung whose name is more familiar because of pushing for

the vote and all of that and Henrietta Edwards, Irene Parleby and whoever the other one was, there were five of them. They, well, Emily was a magistrate. She became the first magistrate in the British Empire. Alberta was a brand new province. They really didn't care if she was qualified or not and she wasn't. And she made decisions that caused people to object and say, but you are not a person. You are not under the definition of person in the statute. You don't fall under that definition. So they fought.

And Emily Murphy had a brother who was sitting on the Superior Court in Ontario. They were a legal family, all except Emily. And he told her there was a way you could appeal to the Supreme Court. So they did. The Supreme Court of Canada turned them down and said, no, you're not persons under the definition of the legislation. And they appealed it to Britain, which you could do at the time. And the judge who decided the case there came,

was basically a human rights defender, although that didn't exist at the time, and ruled in our favor and women were judged persons. So long-winded answer, but that's how. Well, she is a very interesting person because she saw... Oh, she's difficult. She saw a need and she filled it. She's like, I'm going to practice the law even though I'm not... I don't have the qualifications, right?

Oh, she didn't think you needed to be a lawyer. She had lots of opinions and she leaves a very complicated legacy. I have a few photos here that I wanted to share. We have a photo from 2021 where a statue of Emily Murphy in Edmonton was vandalized. You can see there it's covered in red paint and someone has written racist on the bottom. We do have another picture here and this photo was taken very recently just last week showing just two stumps of feet because the statue was removed and stolen. What did Murphy do to earn the label

of racist? She was of the opinion that some people were born criminals and could never be reformed and others could be reformed and it was based on ethnicity. It was based somewhat on, to some degree on ethnicity. Others, if they were simple-minded, she felt they were criminals and couldn't be reformed. But yes, and she certainly felt all indigenous people fell under that heading. She was vehemently anti-Chinese when there was Chinese immigration into Alberta. She felt that this was bringing in the drug trade and it was Emily Murphy who lobbied for the criminalization of marijuana ten years ahead of anything in the States. And she was a vehement proponent of the Sexual Sterilization Act in Alberta, which targeted

Indigenous women, immigrants in particular, and had them sterilized. It was horrendous. Which impacted a lot of people. Totally. Yes, a great many people. And so, you know, Emily Murphy championed or not. Now, all of the famous five were big proponents of the sexual sterilisation. Probably Emily Murphy, the most vehement. So that's why you get the bucket of red paint that was poured over her statue.

And we can't talk about laws and courts and women without talking about abortion rights. Right. In the chapter on abortion rights you focus on the stories of two women in particular. Why were their stories so important? The case that's best known and that went all the way to the Supreme Court was that of Chantal Degue and she was, when all this began, a barely 20 year old waitress from Chibougamou, Quebec, eight hours north of Montreal, population 8,000, a small-town girl who came down to Montreal, met this

guy, Jean-Guy Tremblay, lived with him for five months, became pregnant. Now the Morgenthaler case, which gave women the ability, they didn't get the right to an abortion, women do not have the right to an abortion, but it decriminalized it. The ruling was that it violated the Charter of Rights. And so there it was on the books. And so she said to Jean-Guy Tremblay, I'm going to have, I'm leaving you, I'm going to have an abortion. And he, because there had been another case in Ontario knew that he had a chance of going to court to try and veto the abortion and his point was that the father could veto the abortion. It I mean never has a case gone through the court so quickly. Because of the time. Because of the time abortion was only permissible in Quebec to 20 weeks and

abortion was only permissible in Quebec to 20 weeks and there she was. So it went trial of first instance appeal and then all the way to the Supreme Court right at that 20 week mark. And the other thing that's worth mentioning all of these landmark cases nearly all of them the lawyers acted pro bono or they were legal aid lawyers. The women were waitresses, nurses aides, flight attendants, you know, well-heeled women don't tend to wash their dirty linen in public. And these little everyday guys. Now, I mean, one of them was Clay Clay Ruby who became a very well-known and respected human rights lawyer but the case he acted on which was the case

of Jeanette Corbière Laval who was a status Indian who'd married a guy who wasn't a status Indian and so she'd lost her status was his first time at the Supreme Court of Canada. I want to talk a little bit more about allies but the other woman was Barbara Dodd. Can you tell us about us? Barbara Dodd, she also wanted to have an abortion and the man she lived with said no. The right to life lawyer acted on his behalf. Ultimately he lost and Barbadon won as it were because she was deaf. She was profoundly deaf and

when she was served the documents and she was served the documents, and she was served the documents by the lawyer, not by process service, which is usually the case, nobody served her in sign language. She didn't know what she was being handed. They spoke to her. She had no idea what was going on. So when he sought the injunction preventing her having the abortion, she had no idea what was happening. That must have been really traumatic. It's hard not to have this conversation out and think about what's happening in the United States.

We're seeing the courts roll back a lot of rights for women and after Roe v. Wade was overturned in the United States, many experts started to think about the future of abortion rights in Canada. Do you think something similar could happen here? It depends on the groundswell of public opinion because that's obviously what motivates political decisions and that's what would push it. Now I think all of our leaders of political parties have said no but you know the the underlying theme in all of this is don't take your rights for granted. Be prepared to fight, put your

hand up, be counted, all of that. So who knows but... Are you worried? Certainly to some degree, yeah. You've got to keep your eye on the ball. You write that this book was not intended to be a tirade against abusive men. They just keep showing up. This Florence Murdoch's lawyer, who I think is an ally, Borah Laskin, a judge who eventually became a Chief Justice in the Supreme Court of Canada. How has the law surrounding intimate partner violence shifted over time

and what role have allies played in changing the laws? Shifted in terms, there is more time given to the defense, to accepting that intimate partner violence isn't on. Juries have stepped forward. I mean, we know the issue in this province about having intimate partner violence declared an epidemic, which isn't a legal term and hasn't happened. But a coroner's jury in the Ottawa Valley

was very, very strong in the case of a man who killed three women in one weekend. But it's still not great. I mean there's one case in there about the change in the law of self-defense, whereas self-defense initially was sort of two men fighting it out in a bar, basically equally matched. It took years until it was accepted that a woman's approach to violence from a man would have to be different simply because she wasn't as physically able. And that defense still is not used or accepted as much by the courts as it should be. Women in Canada, we have a lot in common, but we also have a lot of differences that we celebrate.

How does the law apply to women who are also Indigenous or Black or disabled or gay? With difficulty. We now have the recognition of what's called intersectionality, the recognition of what's called intersectionality, which is somewhat complicated and still isn't thoroughly settled. So recognition that if a black woman is sexually assaulted, and there's one case in the book about that, went to the Ontario Human Rights Commission, she is not merely a woman, She is not merely a woman. She is not merely a black person.

She is a black woman. And that is different. That is an intersection of violation of two grounds of prohibited discrimination. So those things are starting to be recognized. There was another case where an indigenous woman who also had a disability, three grounds of prohibited discrimination, that this makes a difference. And we're still coming to terms with that.

Throughout the book, you write about these exceptional women during times when women were to be seen and not heard, who pushed back and said, this is wrong. I were to be seen and not heard who pushed back and said this is wrong, I want to be treated fairly. We see the impact. Some of them are shunned from their families. Some of them have... They all had a horrible time.

They had a really bad time. There's one person that might have died by suicide, another person who died from an illness because of all the stress that they endured. What work is still being done today to create equality in the legal system? Maybe that doesn't depend so much on women screaming, saying, we just want to be treated fairly. Hard to say. One case that points to something better hopefully happening was the mass murder

in Porta Picc in Nova Scotia, mass casualty inquiry. The inquiry report on that is something like 3,000 pages long and it talks a great deal in its findings about preventative measures and you, obviously that's the kind of stuff you have to go for. Karen, it's been an absolute pleasure having you here. The book is terrific. Thank you. One of the best books I've read in a while. So thank you so much and we appreciate you making the time to come into the studio today.

Thank you. Thank you so much.