¹ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]Google Scholar.

² [1999] 1 S.C.R. 497 [Law]. No interveners, women's groups or otherwise, were heard in this “age discrimination” case. The Law test required claimants, among other things, to demonstrate differential treatment through the use of a “comparator group,” explained in later cases to be a group whose relevant personal characteristics “mirror” those of the claimant except for those used in the impugned legislative provision. It also required claimants to prove discrimination through a violation of their “human dignity,” using four contextual factors. In subsequent decisions, the analysis usually turned upon the “correspondence” factor, that is, on the correspondence between the distinction and the claimant's actual characteristics and circumstances.

³ Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703.

⁴ Nova Scotia v. Walsh, [2002] 4 S.C.R. 325.

⁵ Gosselin v. Québec, [2002] 4 S.C.R. 429.

⁶ Auton (Guardian ad litem of) v. British Columbia (A.G.), [2004] 3 S.C.R. 657.

⁷ Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357.

⁸ Trociuk v. British Columbia (A.G.), [2003] 1 S.C.R. 835.

⁹ Where I use “subordination” and “oppression” throughout this article, rather than “equality” or “discrimination,” this is a deliberate attempt to expand the discussion of anti-subordination strategy beyond the use of s. 15. Here I specifically adopt Iris Marion Young's conception of the “five faces of oppression”: exploitation, marginalization, powerlessness, cultural imperialism, and violence: Young, Iris Marion, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990)Google Scholar. To this list I would add colonization, which must be understood first as a spacialized racial domination: Razack, Sherene, “Gendered Racial Violence and Spacialized Justice: The Murder of Pamela George,” in Race, Space and the Law: Unmapping a White Settler Society, ed. Razack, Sherene (Toronto: Between the Lines, 2002), 129Google Scholar.

¹⁰ See, e.g., Fyfe, James, “Dignity as Theory: Competing Conceptions of Dignity at the Supreme Court of Canada,” Saskatchewan Law Review 70 (2007), 1Google Scholar; Faraday, Fay, Denike, Margaret, and Stephenson, Kate, eds., Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006)Google Scholar; McIntyre, Sheila and Rodgers, Sanda, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, ON: LexisNexis Canada, 2006)Google Scholar; Majury, Diana and Gilbert, Daphne, “Critical Comparisons: The Supreme Court of Canada Dooms Section 15,” Windsor Yearbook of Access to Justice 24 (2006), 124Google Scholar; Lessard, Hester, “Mothers, Fathers, and Naming: Reflections on the Law Equality Framework and Trociuk v. British Columbia (Attorney General),” Canadian Journal of Women and the Law 16 (2004), 165Google Scholar; Gilbert, Daphne, “Time to Regroup: Rethinking Section 15 of the Charter,” McGill Law Journal 48 (2003), 627Google Scholar; and Baines, Beverley, “Law v. Canada: Formatting Equality,” Constitutional Forum 11, 3 (2000), 65Google Scholar.

¹¹ [2008] 2 S.C.R. 483 at paras. 21–24.

¹² In the 1980s television series Dallas, the reintroduction of the deceased character Bobby Ewing was accomplished by explaining his death as a dream on the part of his wife, Pam.

¹³ This fruit of the feminist critique may ultimately prove bitter if these decisions, rather than encouraging courts to head in a new analytical direction, cause them to retreat to a more confined interpretation of discrimination, namely as the perpetuation of prejudice and stereotype and not “also vulnerability, powerlessness, oppression, stigmatization, marginalization, devaluation, and disadvantage more broadly”: Jonnette Watson Hamilton, “The End of Law: A New Framework for Analyzing Section 15(1) Challenges,” ABlawg.ca, posted February 20, 2009, http://ablawg.ca/wp-content/uploads/2009/10/blog_jwh_ermiskin_scc_feb2009.pdf. I recognize that these decisions carry this risk, as well as presenting opportunities.

¹⁴ See Hutchinson, Darren Lenard, “Commentary: New Complexity Theories: From Theoretical Innovation to Doctrinal Reform,” University of Missouri–Kansas City Law Review 71 (2002), 431Google Scholar.

¹⁵ Hutchinson, Darren Lenard, “Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse,” Connecticut Law Review 29 (1997), 561Google Scholar; Hutchinson, Darren Lenard, “Identity Crisis: ‘Intersectionality,’ ‘Multidimensionality,’ and the Development of an Adequate Theory of Subordination,” Michigan Journal of Race and Law 6 (2001), 285Google Scholar.

¹⁶ Ehrenreich, Nancy, “Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems,” University of Missouri–Kansas City Law Review 71 (2002), 251Google Scholar.

¹⁷ Kwan, Peter, “Jeffrey Dahmer and the Cosynthesis of Categories,” Hastings Law Journal 48 (1997), 1257Google Scholar; Kwan, Peter, “Complicity and Complexity: Cosynthesis and Praxis,” DePaul Law Review 49 (2000), 673Google Scholar.

¹⁸ Arriola, Elvia R., “Gendered Inequality: Lesbians, Gays, and Feminist Legal Theory,” Berkeley Women's Law Journal 9 (1994), 103Google Scholar.

¹⁹ Valdes, Francisco, “Sex and Race in Queer Legal Culture: Ruminations on Identities and Inter-connectivities,” Southern California Review of Law and Women's Studies 5 (1995), 25Google Scholar; Iglesias, Elizabeth M. and Valdes, Francisco, “Expanding Directions, Exploding Parameters: Culture and Nation in LatCrit Coalitional Imagination,” University of Michigan Journal of Law Reform 33 (2000), 203Google Scholar.

²⁰ Frye, Marilyn, The Politics of Reality: Essays in Feminist Theory (Trumansburg, NY: Crossing Press, 1983), 4–5Google Scholar.

²¹ The Matrix, written and directed by Wachowski, Andy and Wachowski, Larry (Burbank, CA: Warner Bros., 1999)Google Scholar.

²² See, e.g., Vasiliou, Iakovos, “Reality, What Matters, and the Matrix,” in Philosophers Explore The Matrix, ed. Grau, Christopher (Oxford: Oxford University Press, 2005)Google Scholar; Vasiliou discusses enslavement and deception as the two moral backgrounds of the film.

²³ [1994] 3 S.C.R. 627 [NWAC].

²⁴ Harris, Angela P., “Race and Essentialism in Feminist Legal Theory,” in Critical Race Theory: The Cutting Edge, 2nd ed., ed. Delgado, Richard and Stefancic, Jean (Philadelphia: Temple University Press, 2000), 263Google Scholar.

²⁵ Crenshaw, Kimberlé, “Mapping the Margins: Intersectionality, Identity, Politics and Violence Against Women of Colour,” Stanford Law Review 43 (1991), 1244CrossRefGoogle Scholar.

²⁶ Ibid., n. 7.

²⁷ Iyer, Nitya, “Disappearing Women: Racial Minority Women in Human Rights Cases,” Canadian Journal of Women and the Law 6 (1993), 25Google Scholar.

²⁸ Iyer, Nitya, “Categorical Denials: Equality Rights and the Shaping of Social Identity,” Queen's Law Journal 19 (1993), 179Google Scholar.

²⁹ Hutchinson, “Identity Crisis,” 310.

³⁰ On this point see Arriola, “Gendered Inequality,” 129.

³¹ As Nancy Levitt writes, “In one sense, post-intersectionality [multidimensionality] moved intersectional concepts to the systemic level.” Levitt, Nancy, “Introduction: Theorizing the Connections among Systems of Subordination,” University of Missouri–Kansas City Law Review 71 (2002), 227Google Scholar.

³² Hutchinson, , “Identity Crisis,” 290Google Scholar.

³³ Hutchinson, , “Out Yet Unseen,” 640–41Google Scholar.

³⁴ Kwan, “Jeffrey Dahmer,” 1281–82.

³⁵ See Eherenreich, , “Subordination and Symbiosis,” 254–55Google Scholar.

³⁶ Carbado, Devon W. and Gulati, Mitu, “The Fifth Black Woman,” Journal of Contemporary Legal Issues 11 (2001), 707Google Scholar.

³⁷ Ehrenreich's example is that of white women, who “struggle against stereotypes that suggest they are vulnerable, asexual and naturally suited to nurturing.” Ehrenreich, , “Subordination and Symbiosis,” 274Google Scholar.

³⁸ Grillo, Trina, “Anti-essentialism and Intersectionality: Tools to Dismantle the Master's House,” Berkeley Women's Law Journal 10 (1995), 18Google Scholar; Wildman, Stephanie, “Language and Silence: Making Systems of Privilege Visible,” in Critical Race Theory: The Cutting Edge, 2nd ed., ed. Delgado, Richard and Stefancic, Jean (Philadelphia: Temple University Press, 2000), 661Google Scholar.

³⁹ Nash, Jennifer C., “Re-thinking Intersectionality,” Feminist Review 89, 1 (2008), 13CrossRefGoogle Scholar.

⁴⁰ Ibid., citing Wacquant, Loïc, “For an Analytic of Racial Domination,” in Political Power and Social Theory II, ed. Davis, D.E. (Greenwich, CT: Jai Press, 1997), 221–34Google Scholar.

⁴¹ Hutchinson, “Identity Crisis,” 303.

⁴² Peterson v. Bodlovich, [2000] WL 702126 (7th Cir.).

⁴³ Hutchinson, “Identity Crisis,” 305–6 (emphasis added). In Canada, while not explicitly relying on multidimensionality theory, interveners Equality for Gays and Lesbians Everywhere (EGALE) et al. attempted to guide the Supreme Court of Canada on how sexual orientation discrimination can exist coextensively with discrimination based on family status in Canada (A.G.) v. Mossop, [1993] 1 S.C.R 554. While the Supreme Court accepted this idea in principle, it resisted seeing Mossop as anything but a case of discrimination on the basis of sexual orientation (which was not covered under the federal human rights statute). See Freeman, Jody, “Defining Family in Mossop v. DSS: The Challenge of Anti-essentialism and Interactive Discrimination for Human Rights Litigation,” University of Toronto Law Journal 44 (1994), 41CrossRefGoogle Scholar.

⁴⁴ De Santis v. Pacific Tel. & Tel. Co., 607 F.2d 327 (9th Cir. 1979).

⁴⁵ Rabidue v. Osceola Ref. Co., 805 F.2d 611 (6th Cir. 1986), cited in Arriola, “Gendered Inequality,” 138. See, however, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which a woman's dismissal for failure to act in a “feminine” way was recognized as sex discrimination.

⁴⁶ Arriola, “Gendered Inequality,” 138.

⁴⁷ [1995] 2 S.C.R. 513 at 601.

⁴⁸ (2003), 9 B.C.L.R. (4th) 338 (S.C.).

⁴⁹ Jette, Maura, “Sticks and Stones: Jubran v. Board of Trustees and the Relationship between Homophobic Harassment and Sex Discrimination,” Journal of Law and Equality 2 (2003), paras. 53–54Google Scholar.

⁵⁰ North Vancouver District No. 44 v. Jubran (2005), 253 D.L.R. (4th) 294, 2005 BCCA 201.

⁵¹ Harris, Angela P., “Gender, Violence, Race, and Criminal Justice,” Stanford Law Review 52 (2000), 785–86CrossRefGoogle Scholar. The concept of “hegemonic masculinity” is discussed in greater detail below.

⁵² [1993] 4 S.C.R. 695.

⁵³ Johnson, Rebecca, Taxing Choices: The Intersection of Class, Gender, Parenthood and the Law (Vancouver: UBC Press, 2002), ixGoogle Scholar.

⁵⁴ Ibid., 139.

⁵⁵ Ehrenreich, , “Subordination and Symbiosis,” 273Google Scholar.

⁵⁶ Ehrenreich, Nancy S., “O.J. Simpson and the Myth of Gender/Race Conflict,” University of Colorado Law Review 67 (1996), 931Google Scholar.

⁵⁷ Ehrenreich, , “Subordination and Symbiosis,” 259Google Scholar.

⁵⁸ Ibid, at 257, 292 (citing Pyke, Karen D., “Class-Based Masculinities: The Interdependence of Gender, Class, and Interpersonal Power,” Gender and Society 10 (1996), 527), 293CrossRefGoogle Scholar.

⁵⁹ Razack, Sherene, “‘Outwhiting the White Guys’: Men of Colour and Peacekeeping Violence,” University of Missouri–Kansas City Law Review 71 (2002), 334Google Scholar. See also Cho, Sumi, “Understanding White Women's Ambivalence Towards Affirmative Action: Theorizing Political Accountability in Coalitions,” University of Missouri–Kansas City Law Review 71 (2002), 399Google Scholar (criticizing the theory of compensatory subordination as giving white women a “pass” for their behaviour and discounting the material benefits accruing to their families as a result of white male privilege).

⁶⁰ Razack, , “Outwhiting the White Guys,” 340–41Google Scholar.

⁶¹ Ehrenreich, , “Subordination and Symbiosis,” 295–97Google Scholar.

⁶² See note 23.

⁶³ NWAC at 649.

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.

⁶⁵ Isaac, Thomas and Maloughney, Mary Sue, “Dually Disadvantaged and Historically Forgotten? Aboriginal Women and the Inherent Right of Aboriginal Self-Government,” Manitoba Law Journal 21 (1992), paras. 3–5Google Scholar; Anderson, Kim, A Recognition of Being: Reconstructing Native Womanhood (Toronto: Sumach Press, 2000), 65–68Google Scholar. See also Mclvor v. Canada (Registrar, Indian and Northern Affairs), 2007 BCSC 827 at para. 9, aff'd on narrower grounds 2009 BCCA 153, leave to appeal to the S.C.C. dismissed, [2009] S.C.C.A. No. 234.

⁶⁶ Thobani, Sunera, Exalted Subjects: Studies in the Making of Race and Nation in Canada (Toronto: University of Toronto Press, 2007), 49Google Scholar. See also Anderson, , A Recognition of Being, 69–70Google Scholar; Lawrence, Bonita, “Real” Indians and Others: Mixed Blood Urban Native Peoples and Indigenous Nationhood (Vancouver: UBC Press, 2004), 46–47Google Scholar. As these authors argue, this goal was achieved by reducing the numbers of status Indians through the discriminatory “marrying out” provisions of the Indian Act (discussed below) and by taking control of lands out of the hands of women, bypassing traditional systems of matrilineal inheritance and decision making, such as that among the Iroquois (Haudenosaunee).

⁶⁷ S.C. 1869, c. 6.

⁶⁸ S.C. 1876, c. 18.

⁶⁹ Lawrence, , “Real” Indians and Others, 50Google Scholar. Lawrence points out that the practice of defining “Indianness” based on marriage or descent along the male line began in 1850 in provincial legislation (Protection of Lands and Property of the Indians in Lower Canada, S.C. 1850, c. 42) prior to the passage of the British North America Act. Ibid., 32).

⁷⁰ Ernestine, LilianneKrosenbrink-Gelissen, , Sexual Equality as an Aboriginal Right: The Native Women's Association of Canada and the Constitutional Process on Aboriginal Matters, 1982–1987 (Saarbrucken, Germany: Verlag Breitenbach, 1991), 52Google Scholar.

⁷¹ Fiske, Jo-Anne, “Political Status of Native Indian Women: Contradictory Implications of Canadian State Policy,” American Indian Culture and Research Journal 19, 2 (1995), 6CrossRefGoogle Scholar.

⁷² Lawrence, , “Real” Indians and Others, 50Google Scholar.

⁷³ As Lawrence states, the Indian Act “provides a conceptual framework that has organized contemporary First Nations life in ways that have been almost entirely naturalized, and that governs ways of thinking about Native identity.” Ibid., 25.

⁷⁴ Canada (A.G.) v. Lavell; Isaac v. Bedard, [1974] S.C.R. 1349 [Lavell].

⁷⁵ R.S.C. 1970, c. 1–6.

⁷⁶ S.C. 1960, c. 44.

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

⁷⁸ Green, Joyce, “Taking Account of Aboriginal Feminism,” in Making Space for Indigenous Feminism, ed. Green, Joyce (Winnipeg: Fernwood Publishing, 2007), 26Google Scholar. Green (30) and Lawrence, “Real” Indians and Others, 57–58, document other accounts of harassment of and violence against Aboriginal women advancing their rights by male leaders and members of their communities.

⁷⁹ See, e.g., Cree leader Harold Cardinal's work, The Rebirth of Canada's Indians (Edmonton: Hurtig Publishing, 1977), 109–11Google Scholar (discussing the reaction of Aboriginal leaders to constitutional challenges to s. 12(1)(b) of the Indian Act) and Lawrence, , “Real” Indians and Others, 58Google Scholar (relating the Native Indian Brotherhood's description of the provision as “a benevolent process to protect Indians from the white men who married Indian women”).

⁸⁰ Lavell at 1360.

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.

⁸² Ibid, at para. 25, quoting the Report of the Aboriginal Justice Inquiry of Manitoba (Winnipeg: Aboriginal Justice Inquiry, 1991)Google Scholar.

⁸³ Jamieson, Kathleen, Indian Women and the Law in Canada: Citizens Minus (Ottawa: Advisory Council on the Status of Women, 1978), 91Google Scholar.

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.

⁸⁹ Green, , “Constitutionalizing the Patriarchy,” 113Google Scholar.

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).

¹¹⁴ Thobani, , Exalted Subjects, 228Google Scholar.

¹¹⁵ Monture, Patricia. Thunder in My Soul: A Mohawk Woman Speaks (Halifax: Fernwood Publishing, 1995), 147Google Scholar.

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.