While our most recent women’s court came about in 2004, it’s not the first such body in Canada.
The lawyers and legal scholars who comprise the new Women’s Court of Canada regret what they consider the limitations of the Supreme Court of Canada’s judgments on equality issues and s. 15 of the Charter of Rights and Freedoms. So at womenscourt.ca, they’ve begun issuing their own judgments.
The women’s court, they declare, operates as a virtual court rendering alternative decisions on the leading cases “as a means of articulating fresh conceptions of substantive equality.”
Theirs is not, however, the first women’s court Canada has seen. Recently, I’ve been reading Amanda Glasbeek’s Feminized Justice: The Toronto Women’s Court, 1913-34. The book is a history of the women’s court that existed in Toronto during that time period.
This was no virtual court. It had very real authority matched by similar women’s courts in Edmonton, Vancouver, and other major cities in Canada and the United States.
Female judges led the courts, which wielded significant power over many women and some men and even had the authority to ban male spectators.
As with the new virtual women’s court, an explicitly feminist critique inspired those of the early 20th century.
Advocates of women’s courts deplored the male-dominated justice system in which young women who had been corrupted and debauched by men appeared before leering male spectators to be swiftly and unsympathetically tried and sentenced on terms that sent them toward, rather than away from, further criminal and immoral behaviour.
Women’s court advocates wanted a court, preferably with a woman magistrate, that focused on reform and deterrence rather than punishment and criminalization for women corrupted by men.
They promised it would provide girls in trouble with moral authority, social casework, and friendly counsel, none of which were available from the cold legal precedents and unsympathetic male authority of the regular system.
Glasbeek shows this was a powerful and persuasive critique. Toronto got a women’s court on those lines in 1913. By 1922, a woman, Margaret Norris Patterson, led it, as was the case with similar courts elsewhere.
The women’s court’s legitimacy came from its promise of social justice rather than judgment. The plan was to support and reform women and save them from male vice and iniquity. Patterson, like most women’s court judges, was proud not to be a lawyer.
Glasbeek shows, however, that the women’s court experiment didn’t go well. Women’s court feminism, she points out, was explicitly maternal.
The girls who came before the court were innocent lambs victimized by men. It would save them from vice, criminalization, and oppression by deferentially accepting the motherly moral authority of the white, middle-class women whose ideology underpinned it.
The court’s press clippings tended to emphasize the story of the young girl just in from the country whom it saved from drink, prostitution, and other evils of the big city.
But Glasbeek’s copious statistics show they were hardly typical. Many of the court’s defendants, in fact, came from a permanent underclass for whom drink, petty theft, and illicit or disapproved sexuality were a way of life. Many came before the court time and again unreformed and undeterred.
They refused labels as lambs or girls or to allow a court they found at least as hostile and threatening as traditional male justice to mother them.
Moral authority, of course, wasn’t the women’s court’s only power, and Patterson rendered harsh judgment on women who refused to be innocent victims of men or grateful recipients of maternal correction. In some cases, she added a year to their reformatory sentences if they seemed less than appreciative of her efforts.
The inability to fulfil its social-reform promises undermined the women’s court’s legitimacy before a skeptical legal establishment. Before the Second World War, the women’s court’s moment had passed. The Toronto one came to an end in 1934.
The new virtual Women’s Court of Canada of the 21st century proudly and with good reason cites a long heritage of women asserting equality principles before hostile courts on issues like the Persons Case. It makes no mention, however, of the actual women’s courts of the early 20th century.
Glasbeek’s book suggests reasons why. In the end, the original women’s court isn’t a persuasive precedent for a new kind of equality jurisprudence.
Christopher Moore’s newest book is The British Columbia Court of Appeal: The First Hundred Years. His web site is www.christophermoore.ca.
