Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund

Margaret Conrad is Canada Research Chair in Atlantic Canada Studies at
the University of New Brunswick. She is the author of Atlantic Canada: A
Region in the Making, and co-author of Intimate Relations: Family and
Community in Planter Nova Scotia, 1759–

Unlike their American counterparts, who failed to entrench the Equal
Rights Amendment in the U.S. Constitution, Canadian feminists mobilized
to articulate a doctrine of substantive equality, secured equality
rights in the Charter of Rights and Freedoms, and then expanded
women’s rights through litigation. This book examines how Canadian
feminists became key constitutional actors after 1980. The research
focuses particularly on the Women’s Legal Education and Action Fund
(LEAF), an organization established to reverse the litigation defeats of
the 1970s and to sustain and extend women’s rights under the Charter
by intervening in high-profile cases on such issues as abortion, family
law, gay and lesbian rights, pornography, and sexual assault.

Using the broader literature on legal mobilization as a framework,
political scientist Christopher Manfredi analyzes both Charter
litigation and feminist participation in the politics of constitutional
change. The result is a remarkably comprehensive picture of the
evolution of women’s legal rights in Canada over two decades. Students
of Canadian law will be particularly grateful for the 21 tables that
summarize information such as “Individual judicial support for LEAF”
and “Supreme Court use of LEAF material and arguments.” As the
evidence shows, LEAF was not always successful in swaying court judges
(due process conflicted with the construction of sexual-assault trial
procedures, for example), but it had a surprisingly good track record,
especially on cases dealing with abortion rights and the provision of
benefits. Readers unfamiliar with the impact that organized movements
can have in shaping legal thought may well be surprised by the extent to
which Supreme Court opinion was influenced by LEAF intervention as well
as by LEAF’s significant role in introducing into Canada the notion
that courts should incorporate new legal and political theories in
deciding cases.

Not surprisingly, LEAF could not please all feminists, with the result
that its positions (on freedom of expression, for example) caused
considerable stress within the movement. Moreover, LEAF’s success,
Manfredi is quick to point out, occurred in a historical context. In
other times, other movements and other Supreme Courts might well yield
different results.