Taxing Choices [1 ed.] 9780774850346, 9780774809566

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Taxing Choices

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Law and Society Series W. Wesley Pue, General Editor Gender in the Legal Profession: Fitting or Breaking the Mould Joan Brockman Regulating Lives: Historical Essays on the State, Society, the Individual, and the Law Edited by John McLaren, Robert Menzies, and Dorothy E. Chunn Taxing Choices: The Intersection of Class, Gender, Parenthood, and the Law Rebecca Johnson The series will grow to include works in legal culture, critical social theory and law, law and governance, law and economics, law and the environment, First Nations legal issues, feminist legal studies, legality in plural societies, political science and law, postcolonialism, critical race theory, the consequences of globalization for legal order, and critical legal history.

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Rebecca Johnson

Taxing Choices: The Intersection of Class, Gender, Parenthood, and the Law

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© UBC Press 2002 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from CANCOPY (Canadian Copyright Licensing Agency), www.cancopy.com. 09 08 07 06 05 04 03 02

5 4 3 2 1

Printed in Canada on acid-free paper

National Library of Canada Cataloguing in Publication Data Johnson, Rebecca, 1963Taxing choices (Law and society series, ISSN 1496-4953) Includes bibliographical references and index. ISBN 0-7748-0956-6 1. Women – Legal status, laws, etc. – Canada. 2. Sex discrimination against women – Canada. 3. Child care – Government policy – Canada. 4. Feminist jurisprudence – Canada. I. Title. II. Series: Law and society series (Vancouver, B.C.) KE509.J63 2002 346.7101’34 C2002-910676-1 KF478.J63 2002

UBC Press gratefully acknowledges the financial support for our publishing program of the Government of Canada through the Book Publishing Industry Development Program (BPIDP), and of the Canada Council for the Arts, and the British Columbia Arts Council. This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 604-822-5959 / Fax: 604-822-6083 www.ubcpress.ca

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Contents

Acknowledgments / vii Introduction: The Intersection of Power and Wound / ix Part 1: Prelude 1 Theoretical Foundations / 3 2 Childcare Politics in Canada / 16 3 Legal Manoeuvring and the Development of Litigation Strategies / 33 Part 2: “The Play’s the Thing” 4 Strategy and Practice: The Play’s the Thing / 57 Part 3: Sorting Out the Aftermath 5 The Limits of Judicial Power: The Court as Constrained / 109 6 Power, Constraint, and the Rhetoric of Choice / 125 7 Multiple Solitudes: Intersectionality in the Nonexpert Public Response / 142 8 Class and Gender on the Terrain of Need: Intersectionality in Expert Public Response / 159 9 Lessons to Be Learned and a Case to Be Remade / 174 Appendices A Selected Statutory Provisions / 197 B Selections from the Dissent in Symes v. Canada / 201 Notes / 205 Bibliography / 223 Index / 231

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Acknowledgments

It is commonplace to remark that one does not just write a book, one gives it birth. Since the past several years have been very much filled with the experiences of giving birth to both my two boys and this book, I have often reflected on the similarities. But there are also some significant differences. In particular, babies come with a certain inexorable force; whether or not one is ready, the delivery day eventually arrives. Not so with a book. This book was nourished, teased, coaxed, and indeed dragged into the world through the supportive interventions of many. And the interventions came in a multiplicity of forms, some obviously related to the book, others less clearly so, but no less crucial. Friends, colleagues, and family not only read drafts and asked questions which opened up new avenues of inquiry, they also fed me when I was cranky, tried to encourage me to exercise, tolerated my addiction to red licorice, provided a sounding board for my angers and insecurities, entertained me when I needed more human contact, and babysat when I was in crisis. Christina Whitman, James Boyd White, and Deborah Malamud influenced the shape of the book by asking very difficult (if sometimes painful) questions – questions that forced me to grapple with my material in a more complicated manner. My colleagues at the University of New Brunswick Faculty of Law created a vibrant and supportive physical and intellectual space within which to write. I am very grateful to my friends Lori Beaman, Ruth Buchanan, Charley Feild, Orit Kamir, Gayle MacDonald, Jo Ann Majerovich, Margaret McCallum, Norman Siebrasse, and Marc Spindleman for the hours spent listening to me work through various problems, and providing valuable feedback. Elizabeth Symes, her court challenge placing her at the centre of a very public debate about childcare and taxation, opened the door for my inquiry into the difficult intersection of privilege and disadvantage. The debts to family are innumerable: my mother Arta, for her ability to use stories, games, and life to teach the most complex of lessons; my father

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Kelvin, for his invaluable editorial eye; my husband Steve, for his need to be convinced; and my seven siblings and many aunts, uncles, and cousins, for reminding me often of the need to think about the connections between children, family, and work. But above all, to Alex and Duncan, who have shifted the way I understand the world, providing me not only with immeasurable joy and laughter but also a healthy dose of fear and anxiety. Arriving in the world at various points during this project, my two boys put a very concrete face on the difficulties that, until then, I had struggled with only on paper.

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Introduction: The Intersection of Power and Wound Living

in the earth-deposits

of our history

Today a backhoe divulged out of a crumbling flank of earth one bottle amber perfect a hundred-year-old cure for fever or melancholy a tonic for living on this earth in the winters of this climate Today I was reading about Marie Curie: she must have known she suffered from radiation sickness her body bombarded for years by the element she had purified It seems she denied to the end the source of the cataracts on her eyes the cracked and suppurating skin of her finger-ends till she could no longer hold a test-tube or a pencil She died a famous woman denying her wounds denying her wounds came from the same source as her power – Adrienne Rich, “Power,” Dream of a Common Language: Poems 1974-19771

In poetry’s exploration of the paradoxes, contradictions, and complexities of human existence, we are provided with moments of insight and starting points for further thinking. I find just such a moment in the insight that Adrienne Rich illuminates in this poem: specifically, that wounds and power may come from the same source and may coexist at the same location. In this poem, she suggests that some are blind to or deny the relationship between power and wound: they see only the one or the other. To understand life, she says, we must see not only its wounds, and not only its power. We must seek to understand how power and wound are linked – we must understand the complexity of their intersections. And so, this work is a study of intersectionality. In particular, it is a study of the intersection of power and wound. It is motivated in no small measure by my own desire to understand the perils and potentials such intersections pose for those who wish to use the law as a tool of social

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justice. How are legal notions of justice and equality applied in contexts where people carry not merely the scars of their woundings, but also the insignias of relative privilege and power? To contextualize the study, I begin by foregrounding the legal problem that started me rethinking the implications of Rich’s poem. Elizabeth Symes v. Canada (Minister of National Revenue) In December of 1993, the Supreme Court of Canada released its decision in the case of Symes v. Canada. The case was significant for many reasons. Among these, it marked the first occasion in Canadian history that hearings before the Supreme Court of Canada were taped and televised. This was the first opportunity for most Canadians to observe such proceedings, and the case selected for this venue was one that had ignited significant public interest. Even before its arrival at the Supreme Court, the case had generated heated commentary in the legal, academic, and feminist communities, as well as the public at large. In this highly publicized case, Mary Beth Symes, a well-known feminist activist and lawyer, launched a constitutional challenge to the business deduction sections of the Income Tax Act. She urged the Court to interpret the Income Tax Act in a manner that would allow her to deduct her childcare expenses as a business expense. She argued that any other interpretation would violate her right to equality under s. 15(1) of the Canadian Charter of Rights and Freedoms. She was successful at trial and unsuccessful at the Court of Appeal, and was then granted leave to appeal to the Supreme Court of Canada. The case was accompanied by a maelstrom of controversy and conflict. The feminist community was torn over whether or not “support” was the appropriate stance vis-à-vis the case. Symes argued that current interpretations of the Income Tax Act had an adverse discriminatory impact on women. The very notion of business expense, she argued, was premised on a model of the ideal worker as (a male) without primary responsibility for children. Given this model, Symes was marginal within the category of “businesspersons” as a result of her sex and her status as a mother. The case engaged issues not only of gender, however, but also of class. Symes was an upper-middle-class businessperson. Her membership in this social/economic class gave her access to tax advantages that were unavailable to wage earners. While suffering gender disadvantage, she was also the beneficiary of class privilege. The deduction she sought, if granted, would be available only to the relatively small category of women who earned income from business. Symes’s gender-based claim would provide no benefit to wage earners, a category into which the vast majority of women fell. But did Symes’s class advantages erase the gender disadvantages she suffered?

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In addition to the troubling intersection of gender and class, the case raised other difficult questions. Should the government be responsible for subsidizing childcare, or are childcare needs the private responsibilities of individual parents? Was it appropriate to blur the traditional distinction between the “public” domain of work and the “private” domain of home and children? Even if government were to subsidize childcare, should the subsidy take the form of limited tax deductions, or should it take the form of a national daycare system? What were the needs and responsibilities of mothers who work for pay? Was there any distinction to be drawn between the childcare needs of wage earners and business-income earners? What about the women providing care for their own children in their own homes? Should their childcare work not also be valued? Should the discussion of childcare focus on the needs of mothers or the needs of parents? Should gender neutrality be fostered by treating all parents equivalently, or were there differences between being a mother and being a father? If there was an unequal division of childcare labour within families, was this a legal or social problem? Should those struggling to advance the cause of equality in the domain of the family deploy the strategy of litigation or pursue other strategies of social/legislative reform? The case became the site of a national public discussion about issues of childcare, equality, justice, work, taxation, social responsibility, and the restructuring of family and economic relationships in a changing world. The Symes case was a site at which a number of discourses central to legal, social, and feminist theorizing intersected and coalesced. At the intersection, some saw the potential for power, others saw the danger of wound. At the Supreme Court of Canada, Symes lost. In a rare gender split, the seven male justices found against Symes and the two female justices for her. In the flurry of editorials and commentaries that followed the Supreme Court judgment, the gender split on the Court was very much the subject of public attention. While some critics suggested that the split was “unfortunate” and argued against a gendered reading of the decision,2 it would have been hard not to speculate about such a stark and rare gender division on the Court. Both of the female justices on the Court had been widowed with young children. Each had firsthand experience with the problems of trying both to work and to care for children – the very issue highlighted by the case. While the seven male justices also had children, all were married, and none of the men had been solely responsible for the care of their children. Whether or not one saw gender as the defining feature of the case, it was difficult to avoid the conclusion that the majority and dissenting judgments reflected more than just different opinions about a tax issue. The judgments seemed to reflect different ways of seeing and understanding the situation of women with childcare responsibilities in modern society,

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and the role of the Court with respect to that situation. Indeed, the author of a comment on the case referred to the majority and dissenting judgments as “two solitudes.”3 Aside from the glaring divide on the Court, the case did not generate clearly gendered lines in the larger legal and social communities. The Symes case was not uniformly supported by women and opposed by men. Support and opposition was rendered much more complex by the intersection of various dimensions of disadvantage and privilege across the lines of both gender and class. And, though there were disagreements between those who supported and those who opposed the case, there was also some commonality in response: the Symes case was widely perceived to have been a failure. Some saw a faulty litigation strategy, others evidence of the Court’s unwillingness to acknowledge gender-based discrimination. Some perceived a failure of feminist theorizing and others, evidence of law’s inability to resolve complex inequalities. The Symes case, it was argued, revealed the dispiriting impasse faced by those who wish to use litigation as a tool of progressive social change in the context of complex intersectional facts. But a dismissal of the Symes case comes too quickly and at too high a cost. The case involved a complex mixture of privilege and disadvantage and, as Patricia Williams reminds us, “that life is complicated is a fact of great analytic importance.”4 A central theme of this work is that the period of time in which we live requires that we give more attention to what Patricia Mann calls gendered “micro-politics.” Her micro-political moments are ones in which multiply engaged individuals seek to create their daily lives out of “a bricolage of competing and conflicting forms of agency,” operating within various institutional discourses while not being fully inscribed in any.5 These micro-political moments are marked by numerous intersections. Indeed, they are often located precisely at the complex and troubled intersections of what Rich calls “power and wound.” An examination of such micro-political moments may better reveal a variety of contradictory pulls, as well as the possibilities for reconstruction and reconceptualization offered at these locations, thus better helping us to understand such moments in their context, and to learn from them rather than to merely judge and dismiss them. In this work, using Mann’s micro-political approach and the Symes case, I attempt to do just that. Because of the high number of questions involved, and their intersection with other questions, Symes is a particularly useful location at which to study complexity in law. Applying the insights of intersectional theorists, I explore the concrete ways that gender disadvantage is complicated by other forms of privilege, in ways that are relevant to the development of legal strategies to advance progressive social change. There are things to be learned from studying the intersection of

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power and wound. What do we see about the field of action? What questions can we develop concerning the politics of intersectionality and struggles for legal change? The point is to look closely at localized resistance tactics, to figure out what larger “environmental factors” tend to hold certain networks in place, and to see how different tactics might link up to weaken those environmental factors. In this way, I approach the case from multiple angles: history, politics, law, discourse, and popular culture. In the “Prelude” (Part 1), I focus on the theoretical foundations and historical antecedents of the Symes case. In Chapter 1, I clarify the theoretical foundations of this study by describing the contours of intersectional theory, a description drawing in large measure on a history of discussions in the feminist community about essentialism and identity. I also provide a brief introduction to tax expenditure theory and the theories of the “public/private divide” that undergird the work. This theoretical background is relevant to our understanding of the Symes case and of the kinds of conflict it generated. In Chapters 2 and 3, I consider the history of debates about childcare, as well as the legislative and litigative efforts of women in a number of countries to have law acknowledge the relationship between women’s employed work and their childcare responsibilities. This history reveals the persistent emergence of arguments about the public/private divide and highlights the recurrent mobilization of the language of choice, responsibility, and selfishness. I argue that this genealogy situates both the strategic plan adopted by Symes and the politics that divided the feminist community. In Part 2 (Chapter 4), “The Play’s the Thing,” I use the narrative device of a play to explore how the strategy adopted by Symes worked in practice. In the dramatic unfolding of the case through the various levels of Court, one can see the intersection and competition of numerous discourses, each asserting the primacy of its vision of Symes as either powerful or wounded, victimizer or victimized. Indeed, I suggest that there is more to be learned in the telling of the tale than there is in the legal reasoning that was eventually adopted. In particular, there is much to learn from examining the ways that equality claims were met with arguments rooted in the language of choice, responsibility, and selfishness. In Part 3, I consider what there is to be learned about intersectional problems through an exploration of the aftermath of the Symes case. In Chapters 5 and 6, I focus on the legal result reached by the Supreme Court. Was the Court, as some suggested, powerless to do more than what it did? Or was the Court, like Symes, marked by the intersection of power and wound? In Chapter 5, I focus on the constraints facing the Court and argue that any critique of the majority judgment needs to account for the ways in which the Court was limited by the case before it. In Chapter 6, I focus on the powers that were nonetheless open to the Court. Though

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limited in some important ways by the shape of the legal field and the facts of the case before it, the Court was also the possessor of significant discursive power. In particular, I show that the discourse of “choice” plays a significant role in the way that the Court explains its judgment and in the ways it chooses to characterize itself and the other players in the case. In Chapters 7 and 8, I turn my attention to popular culture and the public debate generated by the case. In Chapter 7, I examine nonexpert public responses as a way of articulating the multiple issues involved in the case, and of gaining a better understanding of the differing sources of both support for and opposition to Symes. I show how the case was variously framed to direct attention to different issues: equality, childcare needs, choice and obligation, and the public/private divide. In Chapter 8, I explore responses coming from the expert public: women’s groups, feminists, activists, and academics who had a more intimate familiarity both with the Symes case itself and with the legal issues involved. Here, it is evident that the public face of expert disagreement sometimes served to obscure a significant amount of agreement about the issues involved. Indeed, when one examines the expert responses in terms of the discourse of needs rather than the discourse of rights, one sees less a conflict between class and gender interests than a conflict over the most appropriate strategy to best meet the needs of both class and gender interests. I conclude in Chapter 9 by asking not whether Symes should have won or lost, but rather by asking what remains to be made of the case. Applying the insights of gender micro-politics and intersectional theory, I suggest that the Symes case can profitably be reclaimed by feminists and other social activists as an important site of struggle. The case has great potential for helping us theorize uses of law that can acknowledge and utilize the potential present in the intersection of privilege and disadvantage. Intersectional theory plays an important role here in providing analytic tools designed to provide insights into the role that these problematic intersections play both in maintaining systems of oppression and in providing opportunities for resistance and rebellion. My close attention to the Symes case is driven by the desire to do two things: first, to demonstrate that the case has been too quickly judged and dismissed, both by progressive and conservative forces; and, second, to persuade the reader that an intersectional approach to complex social problems may provide ways to move past what Jürgen Habermas refers to as the exhaustion of utopian energies.6 The Symes case, particularly when approached with the insights of intersectional theory, has a great deal to teach us and should be seen as much more than a failure of the judiciary, of feminist theory, or of progressive activism. The chapters that follow reflect my efforts to think through the particular problems posed by the intersections of privilege and disadvantage by

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focusing on one such intersection. I began this discussion with Adrienne Rich’s visionary insight that power and wound may come from the same source. To return to her metaphor, to benefit from the power of radium, it was necessary to acknowledge and understand radium’s capacity to wound, and to understand it well enough to develop ways of using it that would not leave us, as it did Marie Curie, with cracked and supprating fingers, unable to hold a test-tube or a pencil. Denying the wounds that attended the intersection of privilege and disadvantage in the Symes case will not help us, nor will demonizing the powers. If the goal is to use law as a tool of social reform, then the intersection of privilege and disadvantage must be taken seriously. In the chapters that follow, I endeavour to do just that.

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Part 1 Prelude

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1 Theoretical Foundations [One can’t conceal one’s past/parents.] They inevitably come along for the ride and are part of a shadow government that always occupies part of our being. They are, like the aspects of our fate that arrive before we know they are there, residues that we either learn how to make use of or else allow to poison us in one way or another. They cannot be expunged, for they are part of our fate, part of what made us what we are. – James S. Hans, The Fate of Desire1

The term “intersectionality” has recently become prominent in critical literature.2 However, feminist attention to intersections is not a new phenomenon. As Angela Miles points out, many feminists have long attended to intersections in an attempt to construct an integrative vision of feminism.3 Like Hans in the above quote, Miles reminds readers of the importance of attending to the past. Too often, she argues, feminist theorizing ignores its own past, minimizing the complexity of debates within feminism about the need to work constructively and creatively with the tension between difference and specificity – a tension arising from the intersections of privilege and disadvantage. In this chapter, taking Miles’ observation to heart, I clarify the theoretical foundations of this study by commenting on some moments in the history of feminist thought, scholarship, and practice – moments that are part of the shadow government that has made us what we are. Here, following Foucault, my goal is to attempt a genealogy of moves that have been made in the development of intersectional theory.4 That is, I propose a conceptual “history of the present” in feminist intersectional scholarship, rather than a comprehensive history of the women’s movement. The point here is to provide a brief introductory description of the contours of intersectional theory, a description drawing in large measure on a history of discussions in the feminist community about essentialism and identity. Current intersectional theory is best understood as part of feminism’s ongoing dialogue with the past that gave birth to it. Indeed, the theory carries the visible markings of a very specific kind of past, a past in which women have grappled with issues of power, essentialism, and identity – issues that were at the heart of the Symes case. At its best, intersectional theory represents a valiant effort to prevent some of the painful parts of feminism’s past from poisoning its present and future.

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Intersectional Theory: Acknowledging the Shadow Government One of the main concerns of early second-wave feminism was with the widespread exclusion of women from positions of power in public life.5 This exclusion, its proponents argued, was revealed not only by the numerical absence of women in politics and the professions, but also in the partiality of society’s written records of its history and its knowledge. That written record, feminists argued, was “his” story, a story that purported to be universal, but which was in truth partial. Dale Spender put it thus: “Males, as the dominant sex, have only a partial view of the world and yet they are in a position to insist that their view and values are the ‘real’ and only values; and they are in a position to impose their version on other human beings who do not share their experience. This is one of the crucial features of dominance ... it is the means by which one half of the human population is able to insist that the other half sees things its way.”6 Women’s experiences, feminists argued, were not reflected in the records of supposedly universal human knowledge. Women were sometimes completely absent from the record, and at other times were represented in terms that did not accord with women’s often unrecorded experiences of themselves or their lives. In the face of this partial universality, women began articulating their differences from men. Feminists argued that women shared common experiences of oppression and exclusion. Women from a wide number of disciplines began exploring and documenting these exclusions. The exclusion of women was not simply a physical absence of women in certain professions, though it was that as well. It was also an absence of women and their perspectives in the construction of knowledge across a wide body of disciplines: philosophy, history, science, the arts, law, religion, linguistics, politics, and psychology. Slogans like “sisterhood is global” asserted a common female identity and were the rallying cry for united political activism designed to bring about political change, and to end a history of gender-based exclusion.7 But if there was widespread agreement that women were absent in many fields of human endeavour, there was less agreement about what that absence meant and how it should be rectified. One can see this in what has commonly been referred to as the “sameness/difference” debates.8 The problem involved theorizing the meaning of women’s difference. What difference should those differences make? Historically, women’s “difference” had been one excuse for women’s exclusion from the public world of work and politics. Arguing that women’s difference should not be made the source of their oppression, one strand of thought was that the best strategy was to assert that men and women were similar in the most relevant (legal) ways. That is, women’s difference could not provide a justification for exclusion. Here, the strategy was to remove the barriers that

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excluded women by labelling them “different.” The false universality would be resolved by simply adding women into the mix. Once women were represented in power, professions, and politics, their presence would make a difference. Women would transform the structures of power from within.9 However, a second strand of thought suggested that this strategy might not resolve the problem of false universality. While, given a chance, women might well be able to be successful on the terms of the male world, what if the problem was with the terms themselves? Perhaps the addand-stir method could only accommodate women through assimilation, erasing differences that really did matter. That is, the system could adjust itself to allow women to compete with men, but only on the already established terms. What if one significance of women’s difference lay in the ability it gave women to see the need for radical restructuring? Perhaps a strategy of inclusion would lead only to assimilation, leaving the deeper structures of oppression and exclusion untouched.10 The better strategy, some argued, was to affirm and value women’s differences from men. In the midst of these ontological and political debates within feminism, cautionary notes began to sound. In particular, women of colour began speaking up within the feminist community, warning that feminism was replicating some of the very errors it had identified in “male-stream” thought. Audre Lorde warned that feminists tended to speak of women’s oppression in universal ways, and that this language of universality sometimes effaced the experiences of women of colour. Asking that feminists be more attentive to the presence of difference not just between men and women, but also between women themselves, she said: “Differences expose all women to various forms and degrees of patriarchal oppression, some of which we share, and some of which we do not ... The oppression of women knows no ethnic nor racial boundaries, true, but that does not mean it is identical within those boundaries.”11 Indeed, women of colour began speaking up about the specificity of their oppression, of their feelings of exclusion within the feminist community, and of their concern that claims of universal sisterhood often seemed premised on an unspoken norm of white sisterhood. And, based on their history, women of colour had good reasons to be cautious of feminism’s claims of a global sisterhood. In both Canada and the US, nineteenth-century discourses of women’s emancipation had dovetailed with other discourses about race and class.12 Racist assumptions and strategies were deeply implicated in much of the reproductive and sexual politics of the early feminist movements. For many women of that time, reproduction was seen as inextricable from racial and imperial politics: women reproduced the race. The suffrage movement was often the call for votes for specific kinds (and colours) of women.13 One only had to

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look at the history of the birth control movement, Angela Davis argued, to understand why women of colour were nervous about joining the fight for “women’s” abortion rights.14 Of course, if problems of race were not easily addressed within feminist communities, neither were questions of gender easily addressed within communities of colour.15 Women of colour were often high-centred on the rocks of racism and sexism. But women of colour were not the only ones questioning the false unity in “sisterhood.” The issue of difference among women percolated to the surface and claims of exclusion proliferated. Many groups of women – Aboriginal, francophone, Third World, lesbian – articulated their sense of marginalization within mainstream feminism. Feminists began applying the essentialist critique to feminism itself, even to its “mother” texts. Elizabeth Spelman, for example, noted that Simone de Beauvoir’s rightly famous work proceeded as if the viewpoint of a white, Western middleclass heterosexual woman was the viewpoint of all women.16 Just as Aristotle’s discussions of the nature and equality of men did not include women or slaves, de Beauvoir’s discussion of woman was similarly, if unintentionally, partial. In taking this position, Spelman did not dismiss the insights contained in de Beauvoir’s work. She did warn, however, against false essentialism, an essentialism that would leave feminism without the tools to dismantle structures of oppression. While this “anti-essentialist” critique provided an important avenue for the exploration of differences between women, some feminists worried that the flight from false unity was leading feminism towards the equally dangerous trap of false difference.17 Feminists needed to remember that the goal of attending to the particular was to identify commonalities that crossed the borders of different experiences. Kim Crenshaw argued: “When we pierce the veil of race and class and look to find women’s issues behind that veil we will find unexpected opportunities to better women’s lives and to build a coalition ... When we begin to see that a problem initially conceived somewhat narrowly has broader manifestations, we also see that problems we thought unrelated are actually somewhat familiar and that in fact feminism might have some conceptual tools to address them.”18 While feminism needed to be wary of essentialism, it also needed to remember that essentialism was not always a tool of oppression and exclusion. As Debbie Epstein noted, “Essentialising slogans have played a necessary part in the construction of positive identities by people in subordinated groups and the development of oppositional strategies has often rested on these identities.”19 Essentialism was a double-edged sword, which could be part of a strategy of resistance and necessary in certain political contexts. The point was, according to intersectionality theorists, that anti-essentialism for its own purpose was a weak insight. As Sherene

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Razack put it, to have any political value, the critique had to be combined with a strategy of antisubordination.20 Intersectional theory attempts to do just that. It does so by focusing on the very specific ways that gender intersects with a number of other dimensions in the lives of women. This has often meant focusing on the lives of women who had been at the margins of mainstream theorizing. The point of this focus has not simply been to document difference, nor to encourage guilt amongst the groups at the centre of traditional theorizing – though guilt and denial have been common responses to intersectional critiques. The point of intersectional analysis is to see whether or not the experiences of those located at the intersections can provide insights crucial to the construction of better theories. The increased attention to the concrete experiences of women who have been caught between multiple systems of oppression has generated some important insights. One is the importance of focusing not only on the specific kinds of victimization that occur at these intersections, but also focusing on the unique strategies of resistance that emerge there. A view that focuses only on the double victimization of women often fails to reveal that these women have crafted innovative strategies of resistance. A view that reveals both the victimization and the resistance reminds us of Adrienne Rich’s insight that power may come from the same location as wound. A second related insight concerns the need to connect a study of exclusion with a study of privilege.21 In what ways have the privileges of some women been implicated in the marginalization and exclusion of other women? And further, how can one distinguish between privileges that need to be extended to more people, and privileges that need to be dismantled? Patricia Hill Collins has woven these two insights together in her work examining the ties that bind different forms of oppression together.22 Her focus is on violence as one of the mechanisms, and her study concentrates on the ways this mechanism functions at the intersection of privilege and disadvantage. The Hill Collins approach emphasizes the importance of paying as much attention to the ways that women are privileged as to the ways that they are disadvantaged. That is, one needs to examine not simply black women, but also black men, white men, and white women in order to understand how the various patterns of oppression, resistance, and benefits combine to hold these systems of disadvantage in place. She argues that each of these groups experiences specialized kinds of harm, and develops specialized traditions of resistance. The implication is that we should focus on the kinds of resistance that may be possible in specific locations. This shifts attention from a search for universal strategies towards particular locations. We may then discover the specific strategies and different kinds of resistance that might be available to people

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who are inflected by varying currents of advantage and disadvantage. That is, if it is useful to look at those who are marked by multiple axes of disadvantage, it is equally necessary to examine those who are pulled by and pull on the threads of both power and wound. Since modern theories of power have been influenced by the work of Foucault, a few observations on Foucault’s approach to power may be in order. Foucault argued that many theories of power were riven with reifying metaphors, metaphors that spoke of power as if it were something that could be held, accumulated, possessed, or found.23 Foucault argued that the use of such metaphors allowed “an extremely complex configuration of realities ... to escape.”24 Foucault, attempting to avoid the use of these metaphors, laid out his theory of power in five propositions. The five propositions are: power is not something that is held, but something that is exercised in relations; relations of power are not exterior to other types of relationships, but are immanent and productive of those relationships; power comes from below and is rooted in the social nexus; power relations are both intentional and nonsubjective; and where there is power, there is resistance.25 The propositions combine to generate two important insights. First, Foucault argued that if the powerless are produced by the operations of power, so too are the powerful. Second, power is not a capacity owned so much as a process shared. While individuals (whether we label them the powerful or the powerless) are the effects of power, they are at the same time the element of its articulation. All individuals both enact power and are acted upon by it. Power is not a commodity possessed only by some and wielded against others. It is a property of a system of social relations, a shared resource that can be activated from many different positions within that system. The implication is that the search for the unitary opponent is misguided; so too, the search for the unitary victim. Some critics have argued that this view tends to erase inequalities by suggesting that all people are similarly situated with respect to power. This rests on a misreading of the insight. To say that power is a process shared is not to say that all individuals are equally situated with respect to their abilities to act. The costs of acting are not distributed evenly throughout society and the costs of participation are much higher for some than for others. However, to acknowledge that there are important differential costs is not to imply that only some selves have agency or the power to act. Foucault’s approach centres on a different problem. The issue is not to figure out “who has power” but to examine different options for action available to different people at different locations, the costs associated with those options, and how these options are connected to other locations and options. In Patricia Hill Collins’ terms, it becomes crucial to pay

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attention to the connections in order to gain a sense of how specifically located individuals both benefit from current configurations of power and can avail themselves of specific opportunities to resist or reconfigure current patterns. Of particular importance is Foucault’s insistence on attention to the local mechanisms through which power is enacted. The crucial insight involves a decentring of the search for “who is responsible” and a focus instead on the processes that give meaning to encounters. This decentring of the question “Who is responsible?” does not mean that there are no actors or that choice becomes a meaningless concept. On the contrary. This view accepts that selves are agents and must take responsibility for actions, but responsibility becomes a weaker notion. All people are situated at such locations, having variable potential for effective resistance and variable abilities to benefit from the actions of (even unknown) others. Further, it suggests that metaphors of power and wound should reflect the primacy of exactly this kind of experience. These Foucauldian insights on power and the self are reflected in the work of intersectional theorist Patricia Mann. Mann argues that one of the pressing challenges for feminists is the crafting of new terms to represent a struggle without the unitary political subject “Woman,” and without the unitary political opponent “Patriarchy.”26 This focus is part of her attempt to create a theory of individual agency that better responds to gendered social transformations. Current social and political frameworks of modernism, she argues, are “exhausted and incapable of making sense of most important contemporary problems.”27 Indeed, as the debate about the essential nature of woman has revealed to many, the modern notion of a unified self no longer seems plausible. To modern sensibilities, the self seems to have fragmented, to have dissolved. At the same time, the sense of dissolution is coupled with the lingering conviction that there is something at the core. As Hans puts it, “To dissolve the self completely is obviously an absurdity, for we clearly are in some sense, even if how we are and what it means to be are problematic.”28 Mann suggests that one of the first important steps is to take the focus off the self and put it instead on action. As she puts it: “Insofar as social identities are presently unstable we should stop focusing so intently upon these fragile notions of selfhood. Instead, I suggest we think more about the quality of our actions ... We should think of ourselves as conflicted actors rather than as fragmented selves.”29 Rather than seeing individuals as fragmented selves, her approach views individuals as conflicted actors, involved in site-specific embodied struggles over issues of race, class, and sexual preference as well as gender. Any approach to oppositional politics, she asserts, must begin with the reality of this embodiment. Under her theory, the relevant questions deal less with who we are than with what we do. The concern is with the significance and meaning of the actions

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available to us. An embodied focus is crucial to such questioning, since embodiment takes seriously the colour, race, sex, class, and physical ability of specific bodies in specific contexts. This focus also emphasizes the crucial nature of attention to the conjuncture of multiple dimensions of both oppression and agency within concrete institutional settings. Her approach acknowledges that politically engaged individuals act in contextually interested ways. Indeed, she suggests that it can only be such interest that moves people to act, whether that action be characterized as acquiescence or resistance. Her suggestion does raise some challenging questions about the use of the language of selfishness to talk about intersectional struggles, questions I will return to in Chapters 6 and 9. At this point, however, I shift the theoretical focus and address some questions about tax theory and the public/private divide, as both feature prominently in discussions of the Symes case. A Taxing Theory In the process of working on the Symes case, I was reminded time and time again that, despite the pervasive reach of tax law into the day-to-day life of the average citizen, many people feel completely intimidated by taxation. Friends who would ordinarily leap into discussions about law and politics – often beginning with a wry “Of course I know nothing about the topic, but I won’t let that stop me from expressing a strongly held view!” – were quiet when the conversation turned to questions of tax. One of the barriers to discussion about tax policy is that tax law, as Neil Brooks puts it, “is embedded in a statutory scheme that few can grasp by the exercise of pure intuition.”30 Certainly, efforts to explain my subject material to friends, family, and acquaintances revealed all too clearly that, for many, tax law is experienced as a bewildering technocratic maze of dangerous traps and hidden loopholes. However, despite being cloaked in dry technocratic legalese, questions of tax are also questions of politics. Tax is deeply implicated in social and economic policy, indirectly to the extent that there is a tax angle to nearly every social and economic policy, and directly to the extent that tax provisions themselves are often vehicles for the delivery of social services. Indeed, as Claire Young notes, the income tax regime may be one of the most important vehicles of social as well as fiscal policy.31 And the policies embedded in the tax act are indicators of the social values pursued by our society. Joseph Schumpeter was led to argue that “nothing shows so clearly the character of a society and of a civilization as does the fiscal policy that its political sector adopts.”32 Nevertheless, many people feel that their lack of familiarity with technical tax rules disentitles them from participating in debates about tax. While acknowledging that what I sometimes refer to as “tax-trauma” is

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common, the serious social and political implications of our tax regime suggest that there are good reasons to push past a tax-induced sense of unease or intimidation. A few background comments may give the reader with little expertise in tax a greater measure of confidence to engage more actively with the tax-based debates raised in this study. In particular, let me briefly address two issues that frequently came up in debates about the Symes case: tax expenditure theory and the regressive nature of tax deductions. On the first of these, tax theorists argue that the multitude of rules in the tax system can be separated into two distinct categories: technical tax provisions and tax expenditures. The technical tax provisions (sometimes referred to as the “normative tax system”) are the rules that establish and define the basic structural elements of the tax regime: base, unit, period, rates, and administrative apparatus. These are the rules that deal with the raising of government revenue. Tax expenditures, on the other hand, are provisions that function not to raise revenue but to “spend it.” Stanley Surrey, who developed the concept of the tax expenditure, saw tax expenditures as the special preferences found in every income tax: These provisions, often called tax incentives or tax subsidies, are departures from the normal tax structure and are designed to favor a particular industry, activity, or class of persons. They take many forms, such as permanent exclusions from income, deductions, deferrals of tax liabilities, credits against tax, or special rates. Whatever their form, these departures from the normative tax structure represent government spending for favored activities or groups, effected through the tax system rather than through direct grants, loans, or other forms of government assistance.33

Some of the debates in the Symes case involved the categorization of the childcare expense. Was it part of the normative or part of the tax expenditure system? The categorization matters in part because provisions from the two different categories are evaluated using different tools. Elements of the technical (normative) tax system are assessed using the traditional tax policy criteria of equity, neutrality, and simplicity.34 Elements of the tax expenditure system, on the other hand, are assessed using budgetary criteria, such as target efficiency, government control, and administrative cost.35 So, for example, those who saw the childcare deduction as part of the normative tax system might ask questions about equity and neutrality of application, focusing on the unfairness of applying the deduction in ways that ignored the centrality of childcare to the ability of the businesswoman to conduct her business. Those who saw the childcare deduction as part of the tax expenditure system, on the other hand, might focus on the need for courts to defer to governmental decisions as to the appropriate

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amounts of money to divert (or not divert) to social programs such as childcare spending. But whether one theorizes the deduction as part of the normative or tax expenditure side of the system, one is still dealing with the support of childcare through the tax system rather than through a more direct spending program. And, as Claire Young notes, “any challenge to the tool used to deliver the subsidy for childcare is constrained by the limitations of that tool.”36 And one can see that a second set of debates raised by the Symes case focused on the limitations of the tool and, particularly, on the inequities inherent in tax deductions. Tax deductions are regressive. That is, the value of a tax deduction to a taxpayer varies with the economic position of the taxpayer. Given this, a win for Symes might only exacerbate pre-existing inequities in a system that already privileges wealth and responds to economic power. One can see one way that this is so by examining the operation of a tax deduction. Imagine that two friends have their children in the same daycare facility and each pays $10,000 a year for this service. Woman A has a yearly taxable income of $100,000 and Woman B has a yearly taxable income of $30,000. Woman A pays tax in the 50 percent bracket, while Woman B is in the 30 percent bracket. Let us assume that the Income Tax Act allows each woman to deduct the full $10,000 paid for childcare. Though each can deduct the $10,000 before calculating her taxable income, the value of this deduction is different for each. To Woman A, the deduction is worth $5,000. To Woman B, the deduction is worth only $3,000. This difference is related to the amount of money each makes and the rate at which she pays tax. Had Woman A been unable to deduct her childcare expenses, she would have paid $50,000 in taxes (50 percent of $100,000). But the $10,000 deduction reduces her taxable income to $90,000, and so she pays only $45,000 in tax (50 percent of $90,000). The $10,000 deduction has given her a “tax savings” of $5,000. Had Woman B been unable to deduct her childcare expenses, she would have paid $9,000 in taxes (30 percent of $30,000). Because the $10,000 deduction reduces her taxable income to $20,000, she pays only $6,000 in taxes (30 percent of $20,000). The $10,000 tax deduction has given her a “tax savings” of $3,000. The childcare deduction, through reducing the amount of tax payable, acts in effect like a childcare subsidy. But, counterintuitively, the larger subsidy goes to the woman who makes more money, rather than to the woman who makes less. Woman A is effectively paying only $5,000 for childcare (because of her $5,000 subsidy), while Woman B is paying $7,000 for that care (because of her $3,000 subsidy). I look in more detail at the Income Tax Act in Chapters 2 and 3 but, for now, the point I would like to emphasize is this: because taxation is such

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a powerful vehicle of social policy, it is important not to let fear of technical detail stand as an impediment to vigorous debate. It is also important to keep clearly in mind that the technical design of the tax system is built on socially contested visions about the appropriate structure of fiscal and political life. Debates about taxation legitimately require one to ask questions about the theories that inform the deep structures of social life. Thus, in the Symes case, it was not surprising that the debates frequently turned to the ways that concrete tax provisions reflected specific constructions of the public/private divide. Because debates about this theoretical divide surface at several junctures in this work, it is useful to provide a few background comments. The Public/Private Divide At the heart of social and political life in any modern liberal state is the notion that important distinctions must be drawn between public and private domains. The public/private divide provides a conceptual framework for drawing the boundary between these different domains and the activities that occur within them. On the one side fall those activities or matters appropriate to public or political concern. On the other side fall those activities or matters appropriate to private or personal concern. Of course, it can be argued that activities themselves do not have an ontological “publicness” or “privateness”: “public” and “private,” like beauty, can be said to exist only in the eye of the beholder. And the eye of the beholder often views the world through the lens of some dominant ideology.37 Although standards for beauty may vary with time and place, and though there may be individuals with unusual visions or preferences, there can be generally widespread social agreement as to what is beautiful.38 So too, there is often widespread social agreement as to what is public and what is private. This agreement reveals less about the nature of the activity in question than it reveals about the influence of a dominant ideology on how people conceptualize the world in which they live. Now, to call the public/private divide “ideological” is not to say that the divide is only a mental construct: it is a mental construct but with significant material consequences. The divide involves the allocation of tasks and responsibilities in both ideological and physical terms. Significantly, even those who do not subscribe to the ideological framework justifying a given allocation of tasks will find themselves nonetheless subjected to it. Even the most cursory review of women’s activism reveals a persistent concern with how tasks and responsibilities have been allocated under various manifestations of the public/private divide.39 The divide has been drawn, women have often argued, using the pen of gender: men have claimed the public for their own concerns, relegating women’s concerns to the private.40 Men’s concerns have not only dominated but

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also defined the political realm. Women’s concerns, to the extent that they have diverged from men’s, have been characterized as personal. And, as Gavison puts it, the labelling of something as private or personal has had far-reaching material, that is, social, economic, and political, consequences: One of the functions of dubbing something “personal” is to define that activity, decision, or complaint outside of the social, political, or public arena, and to connect it with the particular circumstances and responsibilities of the individual or individuals concerned. This definition, in turn, identifies the proper way to address the complaint or problem: The individual suffering from personal difficulties may need aid or therapy. Although the general availability of such help may be a social concern, the particular problem is of no public interest or concern.41

One of the central arguments in the Symes case involves exactly this issue: the politics of labelling childcare as “personal.” Symes was arguing that the business/personal distinction in the Income Tax Act (a distinction examined in more detail in Chapters 3 and 5) is yet another instance of a gender-inflected public/private divide. The Income Tax Act language of “business/personal” resonates in significant ways with the public/private divide as it is traditionally understood. Whether the line has been business/personal or public/private, it has often been interpreted in ways that have left women and children to fare for themselves. By defining childcare expenses as “personal,” Symes argued, the government was excluding it from the public world of business, designating it as the private responsibility of individual mothers. Symes’s strategy was to draw heavily on the famous rallying cry, “the personal is the political.” This classic statement has always served to challenge those manifestations of the public/private divide that suggest that women’s problems are personal or private ones. As Carol Hanisch argues: “Personal problems are political problems.”42 But while the rallying cry has been effective at foregrounding the politics inherent in any drawing of the public/private divide, it has not resolved complicated questions arising from challenges to those drawings. So, for example, is childcare more like a business expense, or more like a personal expense? Such a question does not dispute the legitimacy of dividing the world of expenses into public and private ones. Rather, it focuses on the correctness of positioning a given expense in one or the other category. Such a challenge is in the form of an internal critique of the divide. An external critique, on the other hand, questions or challenges the legitimacy of the distinction itself, suggesting that no distinction can be drawn or rather, that the process of dividing things between the two categories is so unremittingly harmful or

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discriminatory in the resulting distribution of benefits and burdens, that the distinction itself should be dissolved. Both internal and external challenges to the divide raise pressing questions in a context where it is becoming increasingly clear that the implications of labelling something as private or public can vary significantly to the extent that gender intersects with class, race, sexual orientation, and physical ability. Indeed, if some women are disadvantaged through their relegation to the private, others are harmed through a denial of access to any sphere of privacy.43 Neither public nor private realm is necessarily better for women. Rather, these realms function in contradictory ways. Further, the benefits or burdens attached to any given division seem to be historically contingent and contested. Thus, statements like “the personal is the political” are not simply assertions that given issues should fall to the public rather than private side of the line. Rather, they are assertions that the drawing of the line is itself political. Their greatest value lies in their ability to trouble the obviousness of the division, and to force a social articulation of the rationale for drawing the line in any given place. The important point may be that, while there is perhaps little in life that is inherently “public” or “private,” important implications flow from how the boundaries are drawn. What is of concern in this work is less the descriptive question of whether something is public or private, but rather the implicational question of what it would mean to identify childcare as an expense falling on the public side of the public/private divide.

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2 Childcare Politics in Canada

When Mary Beth Symes appeared before the Federal Court in 1989, she argued that childcare could qualify as a tax-deductible business expense. This argument had been unsuccessfully raised in Canada in the 1950s and 1960s.1 Similar questions had been raised by plaintiffs in Britain and the US without success.2 One wonders what led Symes to believe that her challenge might succeed before the Canadian courts in the waning years of the twentieth century. In this chapter, I begin to sketch an answer to that question by exploring various political factors that may have shaped Symes’s strategic legal decisions: both her decision to bring the case and her decisions about the kinds of arguments that would have to be made. In this chapter I consider the context against which she made those decisions. This involves an exploration of the history of childcare debates in Canada and the history of Canadian women’s attempts to bring about change in the childcare arena through legislative reform. The goal of this chapter is to paint a picture of the state of the Canadian landscape of childcare activism in the late 1980s. Background on the Childcare Debates On 27 June 1983 the federal government publicly announced the establishment of the Royal Commission on Equality in Employment. In the terms of reference establishing the commission, the Privy Council commented that “demographic trends indicate that women will constitute the majority of new entrants into the Canadian labour force in the 1980s and it is therefore imperative from an economic point of view to ensure that women are employed to the full extent of their productive potential and from a social point of view to ensure that women receive an equitable share of the benefits of productive work.”3 Given this demographic trend, coupled with the perception that current measures designed to eradicate discriminatory employment practices had not resulted in sufficient change, the government determined that it was “desirable that an inquiry

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be made into the opportunities for employment of women, native people, disabled persons and visible minorities in certain crown corporations and corporations wholly owned by the Government of Canada.”4 While the terms of reference directed the commission to focus only on matters within federal jurisdiction, the commissioner soon concluded that problems of inequality in employment could not be so easily circumscribed, and the recommendations were eventually directed at both the federal and provincial governments. Over the course of a year, the commission received hundreds of written submissions, letters, and documents, and crossed Canada, meeting with groups of women, native people, disabled persons, visible minorities, government employees, human rights officials, and representatives of business and labour. Based on the “urgency and unanimity” of submissions made, the commission paid special attention to the relationship of childcare to employment equity. In its 1984 report, the commission stated one of the central problems: “For women who are mothers, a major barrier to equality in the workplace is the absence of affordable childcare of adequate quality.”5 Remedial measures, it said, were required if women were to enjoy the benefits of equality. As the commission put it: By Canadian law both parents have a duty to care for their children, but by custom this responsibility has consistently fallen to the mother. It is the mother, therefore, who bears any guilt or social disapprobation for joining the workforce. And it is the mother who normally bears the psychological and actual responsibility for making childcare arrangements ... Women are not only inhibited from working by this absence of [adequate childcare] but the quality of their participation is impaired. Childcare is the ramp that provides equal access to the workforce for mothers.6

The commission concluded that the lack of adequate childcare was one of the major impediments to women’s full participation in the workforce. This was not a new insight. In fact, the federal government had well understood that the lack of childcare was a serious barrier to women’s employment when it established day nurseries during the Second World War. Wartime Ramps and Postwar Barriers As noted in Chapter 1, the notion that there is an important distinction between public and private matters has been central in the development of modern Western societies. Throughout the nineteenth century and much of the twentieth, questions related to the internal workings of the family have generally fallen on the side of the private. There has often, however, been vigorous debate about the precise location of the boundary between public and private. Certainly, in Canada prior to the Second

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World War, childcare was understood to be a private concern and to be the concrete responsibility of women who had chosen to have children. Individual childcare problems, while of pressing importance to individual mothers, were not generally thought to be matters for public intervention. This is not to say that there were no public interventions in matters relating to the care of children. Indeed, there was a history of public intervention in childcare; interventions by both governments and charitable organizations that generally took the form of incentives, disincentives, and punishments aimed at assuring the proper care of children by women within the home.7 However, the terms of public interventions in childcare (particularly government intervention) were understood to be limited in certain ways: to cases of extreme poverty, maternal illness, or abuse of children. During the 1940s a more extended government intervention in the private domain of childcare was justified on the basis of a war emergency. Canada had been an early entrant into the Second World War and by 1942 was suffering very real labour shortages. With high numbers of men serving overseas, there was a critical need for women workers.8 The phenomenon of single working women had become common by the 1940s, and although industry absorbed all the single women it could, this was not enough. In spite of the strong social and ideological pressures against the employment of married women, government, industry, and the National Selective Service increasingly sought to employ married women, even those with children. With Canada suffering a very real crisis in work because of its involvement in the war, childcare was seen as not just a “personal matter” but as a larger question of the public domain, public needs, and public goods. Industries were experiencing worker shortages and the war effort required workers. In order for Canada to win the war, it would need to draw these women away from the home and into the factories. Early on, both federal and provincial governments understood that the needs of married women and women with children would have to be accommodated if these women were to be drawn into the labour force. A first accommodation was the 1942 Amendment to the Income War Tax Act.9 This amendment removed certain provisions that served as disincentives to married women. Prior to the amendment a married woman could only earn $750 per year without her husband losing his claim to the married-status exemption. As a special wartime concession designed to encourage married women to take up employment, the amendment allowed a married man to claim the full married-status exemption no matter how much his wife made. A second accommodation came with the enactment of the 1942 War Time Day Nurseries Act.10 This act authorized the federal minister of labour to enter into agreements with any of the provinces to establish daycare

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facilities for children of mothers employed in war industries. The ensuing Dominion-Provincial Wartime Day Nurseries Agreement provided that capital and operating costs for the day nurseries would be shared equally by provincial and federal governments. The responsibility for the particulars of the nurseries would rest with the provincial governments. Ontario and Quebec, the two most heavily industrialized provinces, established nurseries under the agreement. Federal and provincial governments understood that lack of childcare was a barrier to employment. But in jointly providing women with access to childcare during the war, these governments were not acknowledging any ongoing federal responsibility in the area. According to s. 92(16) of the Constitution Act, 1867, provinces have exclusive legislative jurisdiction over “Generally all Matters of a merely local or private Nature in the Province.” Thus, according to a 1943 report, Day Care of Children, childcare was “normally the responsibility of the Province, in cooperation with its local groups.”11 It was only the additional burden on the provinces caused by war conditions that justified the federal government’s decision to share the responsibility. Further, the fact that the provinces had the constitutional authority to legislate with respect to childcare did not impose upon them an obligation to provide or subsidize any particular form of childcare. As the director of the National Selective Service put it, the daycare nurseries were a war emergency measure designed “to secure the labour of women with young children” for “war industry.”12 Thus, the federal government’s original position was that the daycare nurseries “should be strictly limited to provision for the children of women employees in war industries.”13 The government policy of limiting the availability of daycare to women who held jobs that were rated as a high priority met with a great deal of resistance. Faced with a rising tide of public sentiment that held that all working mothers were doing war work (either directly or indirectly by freeing men up to fight), the governments amended the agreement to include children of all working mothers.14 Though this amendment increased the number of women who could access the wartime nurseries, the amendment did not shift the government’s view that its involvement in childcare was fundamentally tied to a war emergency. The nurseries were necessary in order to recruit women but this massive recruitment of women into jobs outside the home was seen as only temporary and was not intended as an acknowledgment that mothers were part of the peacetime employment economy. With the end of the war, the prewar status quo began to reassert itself, and the joint cost-sharing daycare program was rapidly dismantled. First, the federal government took the position that childcare was a matter “of a local nature” under s. 92(16) of the Constitution Act, 1867, and thus within

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exclusive provincial jurisdiction. The federal government withdrew its funding from what it had seen as a wartime project. The provinces agreed that the subject matter of childcare was generally within their legislative domain, but determined not to remain involved in the provision or subsidization of daycare. Rather, provincial governments expressed the view that the responsibility for childcare rested firmly with the family. In the absence of wartime emergency, according to those in charge of the wartime nurseries, the responsibility went back to women “to make their own arrangements for the care of their children, with the help of relatives and neighbours.”15 Both levels of government saw childcare as primarily a private matter to be dealt with by individual families. The Quebec nurseries were closed by October of 1945. In Ontario there was greater public resistance to the proposed closures and activists managed to keep some of the wartime daycare nurseries open for six years after the war. The discursive battlefield for this struggle reveals the mobilization and deployment of competing rhetorical strategies: discourses of need were met by discourses based on maternal responsibility and selfishness. It is worthwhile to take a brief look at the confrontation of these competing discursive strategies in the 1940s, since very similar rhetoric about need, responsibility, and selfishness swirled around the Symes case more than forty years later. In examining the public struggles surrounding the dismantling of wartime nurseries, Prentice points out that governments sought to focus attention on maternal responsibility and selfishness. In the context of the postwar years, confronted with public opposition to the closing of the daycare nurseries, the Ontario provincial government emphasized the responsibility of families in general (and mothers in particular) to take care of their own childcare needs: “While the Provincial Government has expressed concern that any deserving cases should suffer from the cessation of the plan, welfare officials are agreed that whenever possible mothers shouldn’t shirk their responsibility in caring for their children at home in order to boost what is already an equitable income by working daily. ‘We believe that a child should be brought up in the proper environment in its own home, when possible,’ said one official.”17 Government increasingly limited access to the day nurseries by providing subsidies only to the children of mothers who had to work in order to support the family. In a news release, the Ministry of Public Welfare emphasized the need to prevent state benefits from going to “chisellers” and “undeserving families.”17 The fee structure for the nurseries was doubled to “eliminate from care those children of mothers who work from choice rather than from economic necessity.” The provincial minister of public welfare stated that setting daycare fees too low could “discourage parental responsibility,” and added, “it seems inequitable that, simply

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because the parent in the family wished to work for some purpose, public funds should provide a means of caring for their children if there is no real economic or social need for them both working.” In opposition to these discourses, childcare activists attempted to focus public attention on families and their “needs.” They were successful in weakening the familial rhetoric of maternal responsibility, but only to the extent that they were able to construct daycare as a support to the family (as opposed to a simple benefit to the mother) and a measure of prevention against juvenile delinquency. However, as Prentice notes, the connection of unions to daycare allowed governments to use the rhetoric of communism in response, tainting daycares through their connection to union organizers and supporters. Further, the collective nature of daycares dovetailed well with notions of collectivist kibbutz and other “communist” inventions that threatened to terminate the more natural relationship of child to mother. Thus, despite attempts by childcare activists to shift the focus to questions of delinquency and childcare as a support for families, daycares were portrayed not only as evidence of maternal neglect, but also as a communist threat. Public funding was finally stopped altogether and the last of the nurseries closed down. Childcare politics in the postwar years went beyond the day nurseries. Not only did both federal and provincial funding for daycare dry up, but the 1947 amendments to the Income Tax Act instituted a Draconian regime, penalizing married women who attempted to remain in the workforce.18 Indeed, the amendments serve as a reminder that taxation statutes are not mere income-generating devices, but are also vehicles of social policy. Recall that before the war a woman could earn up to $750 before her husband lost his married-status exemption. The 1942 amendments allowed a husband to claim the full married-status exemption no matter what his wife’s earnings were. But, with the 1947 amendments, once a woman’s income exceeded $250, her husband’s exemption would be reduced by the amount of her income in excess of $250. Now, a married woman’s economic activity would have direct implications for the tax position of her husband. Indeed, many husbands would have an economic interest in discouraging their wives from working. The 1947 amendments established a set of rules that sustained and reinforced the ideology of “separate spheres” – the belief that the public world of work and employment was no place for married women with children. The rules provided economic incentives in support of a regime in which married women were understood to be dependent on their breadwinner husbands, and were further understood to be responsible for caring for their own children within their own private homes. The 1947 amendments sustained widely held social understandings of the world as divided into quite particular and very gendered public and private domains. These

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amendments were not, of course, the only tax rules that participated in the drawing and sustaining of distinctions between public and private realms, or of marking childcare as located firmly in the realm of the private. Taxation rules governing business deductions operated in a similar fashion. The general rule was that business expenses were deductible from income for the purposes of calculating the amount of tax payable. Notions of public and private were used to distinguish legitimate business expenses from nondeductible personal expenses. Expenses such as childcare were characterized as personal (private) expenses, as expenses falling outside the boundaries of the legitimate business (public) domain. Though the public/private divide does not map perfectly with the business/personal distinctions in the Income Tax Act, there are significant resonances between the two.19 Both the line between business/personal and the line between public/private have often been interpreted in ways that have left women and children beyond the realm of economic assistance. The implications and impact of this line drawing are clear when one looks at early challenges made to taxation’s separation of public and private, whether in Britain, Canada, or the US. In the section that follows, I examine the nature of the challenges that attempted to move questions of childcare from the realm of the private to the realm of the public. Early Challenges to Taxation’s Separation of Public and Private In Britain, one of the early challenges occurred in the 1891 case Bowers v. Harding.20 Here, a married couple was employed in the operation of a school and received a joint salary. Mr. Harding employed a household servant in order “to enable his wife to have time to perform her duties as school-mistress.”21 Because the English common-law doctrine of coverture (or marital unity) applied, the existence of a wife was legally absorbed by her husband, and the joint salary was treated as Mr. Harding’s alone. Thus, he sought to deduct the expense for the servant from his taxes as an expense incurred “wholly, exclusively, and necessarily in the performance of the duties of his ... employment.”22 The Hardings used what became known as the “but for” test. That is, “but for the housekeeper” they would have been unable to earn the income. The Court neither accepted the argument nor allowed the expense. According to the Court: When a man and his wife accept an office there are certain detriments as well as profits, but this is in no sense an expenditure which enables them to earn the income in the sense of its being money expended upon goods, or in the payment of clerks, whereby a tradesman or a merchant is enabled to earn an income ... If we were to go into these questions with great nicety, we must consider the district in which the person lives,

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the altitude at which he lives, the price of meat, and the character of the clothing that he would require, in many places indeed the character of the services and the wages paid to particular servants, and the style in which each person lives, before we could come to any conclusion.23

Here, we see a Court troubled by the notion that personal choices could be reinterpreted as business necessities. In the holding, the Court addresses this concern by reinscribing a rigid divide between the domains of “business” and “personal” life. Things dealing with the household were not things that had anything to do with business and earnings. Childcare would by extension fall into this domain of “the personal.” It was not something of concern to business nor government. It was a matter to be dealt with by and within the family. In 1950 the first Canadian case to address this question, No. 68 v. Minister of National Revenue, drew on the same reasoning.24 The appellant was a married woman and optometrist who sought to deduct from her income the wages paid to the woman who tended her two infant children while she was at work. There was some room for this argument since, post-1948, the wording of the British and Canadian provisions permitting the deduction of expenses were different. The UK provision was much more specific about the connection between the expense and the income it generated. But, despite the more expansive language in the Canadian tax provisions, the Tax Appeal Board determined that the reasoning in Bowers applied to the case. Though accepting that the appellant would have been unable to pursue her occupation in the absence of childcare, boardmember Fordham went on to say: “[She] might well have had such an employee at her home even if she had not been following the occupation of an optometrist; the wages paid would then have constituted a ‘personal or living expense’ ... I am unable to see how the classification of these wages could become altered by reason of the appellant’s choosing to continue in business as an optometrist. This circumstance does not convert them into a business expense.”25 Fifteen years later the question came before the board again in Macquistan v. Minister of National Revenue.26 The appellant, again a married woman with children, was a practising physician and surgeon. She sought to deduct the amounts paid for babysitting, arguing that without such expenditures she would have been unable to earn income from her profession. Oddly enough, the case was heard before R.S.W. Fordham, the same boardmember who had written the reasons in No. 68 v. Minister of National Revenue. In a brief judgment, Fordham asserted that the question was already well settled. The childcare expenses incurred by a woman, whether or not they were earning income from business, were clearly personal expenses and thus disallowed. Childcare, he said, “is no more an

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expense of earning income than is the employment in a private residence of a cook or a housemaid.”27 In the early 1940s this question also came before the US courts in Henry C. and Lillie M. Wright Smith v. Commissioner.28 In this case the husband and wife were both employed and sought to deduct from their taxes the amounts they spent employing nursemaids to care for their young child. Again, the Smiths argued for the application of a “but for” test: they proposed that but for the nurses, the wife could not leave her child; that but for the freedom so secured, she could not pursue her employment; and but for that, there would be no income and no tax. Like the British courts before it, the US court rejected the test, saying that the expense in question was by its “very essence” a personal one. Personal expenses, according to the tax act, were expressly excluded. The court went on to say: We are not prepared to say that the care of children, like similar aspects of family and household life, is other than a personal concern. The wife’s services as custodian of the home and protector of its children are ordinarily rendered without monetary compensation. There results no taxable income from the performance of this service and the correlative expenditure is personal and not susceptible of deduction ... Here the wife has chosen to employ others to discharge her domestic function and the services she performs are rendered outside the home. They are a source of actual income and taxable as such. But that does not deprive the same work performed by others of its personal character.29

The court commented further on the distinction between business and personal expenses, noting that the line between them is sometimes difficult to draw. However, it held that for practical purposes, there is a line between those activities that “as a matter of common acceptance and universal experience” are ordinary or usual as the direct accompaniment of business pursuits, and those that are “personal in their nature, of a character applicable to human beings generally, and which exist on that plane regardless of the occupation.”30 The latter category would include, the court went on to say, payments made to servants or others occupied in looking to the “personal wants of their employers.”31 Nursemaids retained to care for infant children fall within this group. These challenges in Britain, Canada, and the US illustrate the role played by tax courts in policing and maintaining the borderlands between personal and business, a policing that left questions related to the care of children firmly on the side of the personal. All these courts rejected an approach that would link childcare to the ability to do business. Certainly, if one were thinking about reform to childcare, case law from other jurisdictions revealed that courts were uniformly reluctant to advance change

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through reinterpreting notions of public and private. The reluctance points in the direction of concerns related to the public/private, gendered roles with respect to family, and a latent sense that children were a matter of choice, and that deductions were perhaps inappropriate with respect to costs that were chosen rather than mandatory. Indeed, the courts revealed themselves more commonly as adhering to traditional notions of private, and as sustaining a separate private realm for questions related to children and their care. Political Action around Taxation and Childcare Reform Given the early courtroom failures of claimants in their own and other jurisdictions, it is not surprising that, following the closure of the wartime day nurseries, Canadian childcare activists did not actively pursue strategies of change through litigation aimed at the business-expense provisions of the tax code. They understood the negative impacts of the then current tax regime, and focused their energy on lobbying and grassroots pressure designed to encourage both legislative reform of the tax act, and greater attention to the development of comprehensive childcare programs. In response to just such pressure, the government introduced two initiatives. The first was the Canada Assistance Plan (CAP) of 1966.32 Through this program, the federal and provincial governments shared the costs of subsidizing the fees paid by low-income parents who used daycare services. The second was a 1972 amendment to the Income Tax Act providing a childcare expense deduction to working parents.33 The possibility of implementing a tax deduction for childcare was raised in the mid-1960s, when the Canadian government set up a Royal Commission on Taxation (the “Carter Commission”) to investigate reform of the taxation system.34 Amongst other things, the Carter Commission looked at tax reform efforts under way in the United States and the US allowance of a limited childcare deduction. Section 214 of the Internal Revenue Code (IRC) allowed certain categories of people (women, widowers, persons with incapacitated spouses) to take a deduction in respect of monies they paid for childcare where the childcare was necessary to enable the person to be gainfully employed.35 The deduction was capped at $600 per year, $900 if there were two or more dependants. A further requirement of joint filing penalized those couples with a combined income of $6,000 per year or greater. When the Carter Commission released its report in 1966, it did not recommend that Canada follow the US example of providing a childcare deduction. The commission articulated the three objectives appropriate to a system of income taxation: to maximize the current and future output of goods and services desired by Canadians; to ensure the equitable distribution of output; and to protect the liberties and rights of individuals.36

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The commission expressed the view that the highest priority should be assigned to the second of these three objectives, concluding that unless there was a high degree of equity, all other achievements would be of little account.37 In the interests of ensuring equity as understood at that time, the commission took the explicit position that there should be no deduction for childcare. With respect to allowable deductions, the commission said: For greater certainty, and to ensure that some obvious personal living expenses would not be deducted, the Regulations should specify those expenses that could not be deducted from gross income by employees, or any other individual, under any circumstances. Such things as commuting expenses, the costs of child care, and recreational club memberships should be explicitly denied as deductions from income.38

In the eyes of the Carter Commission, childcare was an obvious personal expense. It would be inequitable to allow personal childcare expenses to be deducted while prohibiting other kinds of personal expenses. The Canadian government’s 1969 White Paper on Tax Reform came to a quite different conclusion.39 This document spoke more explicitly about the nexus of employment and childcare, and expressed the view that childcare was something more than just personal. The paper proposed that there should in fact be a deduction available for childcare: We propose to permit deduction of the child care expenses that face many working parents today. The problem of adequately caring for children when both parents are working, or when there is only one parent in the family and she or he is working, is both a personal and a social one. We consider it desirable on social as well as economic grounds to permit a tax deduction for child care expenses, under carefully controlled terms, in addition to the general deduction for children.40

To understand this seeming shift in perspective, it is significant to recall that the consultations for the 1969 White Paper were conducted around the same historical juncture as the Royal Commission on the Status of Women. The RCSW, established in 1967, functioned as a lightning rod for feminist and women’s group activity across Canada. According to its terms of reference, the commission was to inquire into the status of women in Canada and to recommend “what steps might be taken by the Federal Government to ensure for women equal opportunities with men in all aspects of Canadian society.”41 Before its report was submitted in 1970, the commission received 468 briefs, around one thousand letters of opinion, and held a series of public hearings in fourteen cities in the ten provinces. Eight

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hundred and ninety witnesses appeared before the commission. In some cities, hot-line telephone services were set up so that people unable to attend the hearings could talk directly to a commissioner. The commission also reviewed existing research and commissioned an additional forty studies of specific areas. The hearings of the RCSW received a great deal of media attention. Members of the press travelled with the commission and much of what was said at the hearings began to filter into public discourse. The relationship of women, children, and the economy was an issue that received more than a little foregrounding. Pressure was mounting to acknowledge the financial and economic costs carried by women because of childcare responsibilities. Indeed, the briefs submitted to the commission were virtually unanimous in their demand for more generous treatment of the expenses of childcare for working mothers.42 The final report tabled by the RCSW was wide ranging and included chapters on Canadian women and society, women in the Canadian economy, education, women and the family, poverty, participation of women in public life, immigration and citizenship, criminal law and women offenders, and taxation and childcare allowances. Interestingly enough, the chapter on taxation did not recommend tax deductions for childcare, as had the 1969 White Paper. Indeed, on the question of childcare, the RCSW showed perhaps greater commonality with the 1966 Carter Commission on Taxation. While the RCSW would have strenuously disagreed with the proposition that childcare was a personal matter, it would have agreed with Carter that tax deductions posed some very specific equity problems. The reports made to the RCSW explicitly spelled out a problem that was widely understood: tax deductions were regressive. That is, because the value of a deduction was linked to the rate at which one paid tax, higher income earners would receive a greater tax subsidy in terms of tax dollars saved.43 In short, a system of childcare tax deductions would favour more economically advantaged women over less economically advantaged ones, providing the least benefit to those who needed it most.44 There was widespread understanding that a deduction for childcare would create inequities. And so the RCSW did not unilaterally oppose change through taxation, but it did argue against a system that would address childcare primarily through the use of tax deductions. As Hartle put it, “It is desirable to remove the unfair tax discrimination against women relative to men. It is equally important to treat women fairly relative to one another.”45 The RCSW concluded that if the tax route was to be followed, a tax credit would be preferable to a tax deduction, since tax credits were worth the same in terms of tax dollars saved to all taxpayers, regardless of the rate at which they paid tax.46 However, there was a route to childcare relief that the commission preferred to taxation, the origin of which was in

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the Canadian war nurseries experience. According to Recommendation 181, relief should be in the form of a government-funded national daycare system.47 This was not a recommendation that the government acted upon. Instead, as part of the tax reform of 1972, the Canadian government followed an approach similar to that taken in the US and introduced a limited childcare deduction to the Income Tax Act.48 Section 63 of the Act now provided a limited deduction available to women who incurred childcare expenses in order to work. The deduction was capped at $500 and was available to working mothers, whether they were wage earners or earned income from business.49 The deduction was available to all women who needed childcare in order to earn income, as well as to a very limited subcategory of men: working fathers whose wives were incapacitated, institutionalized, imprisoned, or dead.50 While this amendment was arguably an improvement over no relief at all, women’s groups did not see tax deductions as an adequate answer to the childcare problem. Women’s groups across Canada increasingly placed pressure on governments to develop solutions to the childcare problem. Canadian women continued to work for change through political channels: organizing conferences, presenting briefs before legislative committees, lobbying for change. At the 1972 Strategy for Change Conference, which marked the founding of the National Action Committee on the Status of Women (NAC), the “radical caucus of women” proposed the holding of a future conference in support of “child care in state-supported child care centres as a right for every child, as education is a right.”51 Indeed, after seeking recommendations from its member groups, NAC reported that “general and accessible child care” was one of its top four priorities.52 The government response to this pressure included the establishment of new councils, committees, and task forces to study the kinds of childcare problems confronting women in the workforce. In 1973, acting on the recommendation of the Royal Commission on the Status of Women, the federal government established the Canadian Advisory Council for the Status of Women (CACSW) to provide ongoing advice to the government on matters relating to the status of women. When it came to the question of women and children, CACSW identified the same problems identified by earlier commissions and councils: “The CACSW notes that child care services are urgently required throughout Canada. It is concerned that lack of child care services is a barrier to the reentry of women into the labour force.”53 It went on to recommend that the federal government establish childcare centres in federal government workplaces, and that it cooperate with provincial and territorial governments to establish effective childcare programs. It also advised that the childcare expense provisions in s. 63 of the Income Tax Act were inadequate in many respects. CACSW said:

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First, the benefit is given as a deduction, which means the same expense will give rise to a larger tax saving for women having the highest incomes. Second, since receipts are not available from most babysitters, many women cannot claim those expenses. Third, the present system discriminates against men who can only claim the deduction if they are single parents or if their wives are disabled or institutionalized. Finally, the present system totally fails to recognize the value of child care services provided by homemakers who are not in the labour force.54

They recommended that the present deduction should at least be replaced by a flat-rate, no-receipts credit to be granted to working parents of young children. If we return to the comments of the 1985 Royal Commission on Equality in Employment that appeared in the beginning of the chapter, it is clear that its recommendations were a seamless piece in the fabric of the ongoing debate over the form and financing of childcare in Canada. The RCEE had recommended the enactment of a National Childcare Act to guarantee consistent standards of childcare across Canada, arguing that “the ideal child care system should be publicly funded, of acceptable quality, and universally accessible, though not compulsory. It should provide care for children from birth until the age at which they are legally permitted to remain home unattended by an adult.”55 Given the traditional complexities of division of powers under Canadian federalism, the RCEE suggested that the federal government cooperate with the provinces and territories to develop appropriate funding mechanisms for this new childcare system. The RCEE also spoke out against funding this new system via the Canada Assistance Plan (CAP) since funding through this mechanism would perpetuate the suggestion that childcare was an aspect of the welfare system. The commission did acknowledge that tax law formed a piece of the picture, and also recommended that “childcare expenses should be fully deductible by either parent.”56 In the reports of the RCSW, the RCEE, and those of various women’s groups, one can see the articulation of a strategy focusing on the need for some system of universal daycare. The reports seemed to acknowledge that the goal of universal daycare was still relatively far off, that it might take time to bring about. Thus, recommendations were coupled with shorterrun views that spoke to the need to also address the role played by taxation. The short-run acknowledgment that taxes did and might continue to play a role did not mean a failure to understand the weakness of the tax system as a method of providing childcare. The form of these recommendations appeared again and again, even in the 1986 “Cooke Report,” the most comprehensive and important report on childcare in Canada.57 In 1984 the Liberal government appointed Katie

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Cooke to chair the Federal Task Force on Child Care. The task force turned its attention to the weaknesses of the tax deduction system. The Background Papers for the task force report once again emphasized that the s. 63 Income Tax Act childcare deduction was worth more money to those who had more money.58 When the Cooke Report was issued in 1986 it came out strongly against any solution that would simply increase the limits on the childcare deduction. What was required, according to Katie Cooke, was the development of a childcare system: “Tax measures, in whatever form, cannot provide the basis for development of a child care system.”59 Nonetheless, however reluctantly, Cooke recommended that in the short term and in the absence of other alternatives, the current system be continued with the limits intact: “We wish to make quite clear our view that current resources devoted to child care are so inadequate that no measure that assists families with their child care costs – no matter how flawed that measure might be – should be abandoned until fuller public financing for child care is in place, and access to quality licensed services is assured.”60 Throughout the 1970s and early 1980s, the Liberals dominated federal politics. Despite strong and consistent recommendations in favour of a nationally funded daycare system and against using the tax system for childcare policy, all that followed from the Liberal government were refinements of the childcare deduction in s. 63 of the Income Tax Act. The monetary limits in s. 63 continued to be increased, reflecting the increasing costs of childcare. The section was also amended to make the deduction available not just to mothers but to parents. However, the amendment also directed that the deduction had to be claimed by the parent earning the lower income. While the facial discrimination was gone, left in its place was a system that, given the well-documented gender income gaps and gender-segregated job markets, continued to produce essentially the same end results. Beyond these tinkerings, government did not act. Advocacy groups seemed unable to bring about the much hoped-for daycare solution. The federal election of 1985 saw the Liberal government displaced by the Conservatives led by Brian Mulroney. Childcare did not fare any better under this new political regime. The newly Conservative-dominated House of Commons established its own Special Committee on Child Care, which issued a report in 1987.61 One interesting dimension of the report is the use of some important elements of conservative ideology about the relationship of families and states, ideology that deployed the language of choice and responsibility. These same elements were ascendant in the postwar debates about childcare. The report’s title, Sharing the Responsibility, reflected the views of the new government about the appropriate relationship between family and state. The report began by stating that “the primary responsibility for child

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care must rest with the family.”62 The Conservatives were of the view that there was a role in childcare for communities, governments, and society as a whole, but emphasized that this role should be merely to give parents as much support as possible. The goal was to help parents “make choices that meet the varied needs of their children as well as their own diverse preferences.”63 Childcare run completely by governments, in their view, would fail to enhance parental choice or encourage parental involvement in a process of vital concern to them. With respect to costs, the report emphasized that childcare was really a provincial matter, but that the federal government could address concerns about affordability of care by delivering child-related benefits through the tax system and other expenditure programs. Unlike commissions before it, the Conservative government’s Special Committee on Child Care did not expressly support a system of national daycare. However, like commissions before it, it did identify problems of equity inherent in the current system of childcare tax deductions. Based on the submissions it heard, the committee concluded that the distribution of benefits from the system was widely perceived to be unfair. In spite of this conclusion, the committee recommended that taxation continue to be one of the primary means by which the government fulfilled its share of the responsibility for childcare. The recommendation was that some of the inequity in the current system be reduced by replacing the childcare expenses deduction with a childcare expense credit. Second, the committee recommended the creation of a new refundable childcare tax credit that would be available to families where one of the spouses remained at home to care for the children. Parents should be able to choose between a childcare expense credit and the refundable childcare tax credit. This option, the committee concluded, “would demonstrate the federal government’s commitment to support parents’ choices about child care options.”64 The committee members were not, however, of one mind. Indeed, the two non-Conservatives on the committee wrote dissenting opinions. Liberal MP Lucie Pépin felt the committee had failed to create a policy framework for effective federal leadership in childcare, saying that Canadians “need a national program for child care similar to existing national programs supporting health and education.”65 New Democrat Margaret Mitchell said the recommendations made would perpetuate problems rather than contribute to solutions. She added, “Although the majority invokes the language of choice, their recommendations do not increase real choice for parents whether they work inside or outside the home.”66 In using the rhetoric of choice to give priority to individual subsidies through the tax system, she argued, the majority was merely perpetuating the continued use of unlicensed care of unknown quality. Sharing the Responsibility is of interest for more than the fact that it

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marks a shift away from a pro-active national governmental policy on childcare. The Liberal government, though it established commissions and task forces to study childcare, did not act on the basis of those recommendations. It had, however, at least espoused a symbolic commitment to problems of childcare. In this context, the 1987 report is interesting because it marks the resurfacing of a kind of reprivatizing discourse. With a Conservative government back at the helm, governmental rhetoric around childcare began to change. While women continued their political efforts to get better childcare, the political climate was changing. Throughout the 1980s, women’s groups found that work with the Progressive Conservatives at the helm was not proceeding as smoothly as it had under earlier Liberal governments. Indeed, at both the provincial and federal levels, the discourse of restructuring had begun to take hold.67 The Progressive Conservative government gutted and even dismantled many social programs as part of a program of reprivatization. Services once delivered by the province were increasingly being delivered by “the family” – and most frequently by female members of the family.68 Against the tide of this rhetoric, women’s groups and childcare advocacy groups continued their calls for a more national daycare system. In 1988 the National Council of Welfare put out a report entitled “Child Care – A Better Alternative.”69 The report recommended government freeze tax expenditures and increase the supply of childcare spaces. But despite calls for reform, government-provided services established during the earlier Liberal governments were increasingly being shifted back towards the public. The issue of childcare, having risen to number three on opinion polls about important election issues, was displaced by the controversy over free trade that sprang up around the same time.70 The issue of childcare seemed to slip once more from the public agenda. In the 1989 Budget Papers, the federal government announced that it had decided not to proceed with funding for additional childcare spaces. The abandonment of the National Strategy on Child Care was confirmed in the Conservative government’s February 1992 budget. Though the government was shortly replaced, the election of a Liberal government did not lead to a renewed commitment to national childcare. Indeed, the new government announced that no childcare program would be put in place until the economy grew by 3 percent in a given year.71 In this climate, the possibilities for a national daycare system were seeming more and more remote, and a political solution less and less likely. As Steele notes, it would have been hard at that time to hold fast to the view that the federal government was amenable to addressing childcare in any comprehensive fashion.72 Facing this seeming impasse, some Canadian feminists began to wonder whether litigation might offer a way of getting childcare reform back on the political agenda. In the next chapter, I examine this question.

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3 Legal Manoeuvring and the Development of Litigation Strategies

In this chapter, I explore how the childcare landscape reviewed in Chapter 2 may have influenced Symes in her decision to bring a challenge before the courts, and influenced the litigation strategy she eventually adopted. What risks and opportunities might Symes have seen in the challenge she brought? What pitfalls would she have attempted to avoid? What politics surrounded her decision to litigate? How did feminist activists react to Symes’s decision to bring a business-expense challenge to the Income Tax Act? In the following, I examine the early US equality-based challenges to taxation legislation and comment on the Canadian litigation landscape of the late 1980s. In light of these, I detail the three major hurdles a legal challenger would have to clear and discuss the feminist politics surrounding the challenge that Symes eventually brought. The Possibility of an Equality-Based Challenge: The US Experience As noted in the previous chapter, early legal challenges to taxation’s business/private distinction proved unsuccessful in Britain, Canada, and the US. Was it possible to make a more direct challenge, arguing that the public/private distinction itself violated the constitutional value of equality? Equality-based constitutional challenges to the limited childcare deduction had in fact been attempted in the US in the 1970s. In Namack,1 and again in Baldwin,2 taxpayers attempted to deduct the full amount of their childcare expenses, amounts in excess of that allowed by the limited deduction available under s. 214 of the US Internal Revenue Code. In both cases, the argument was that the limited childcare deduction in s. 214 was “unconstitutional” to the extent that it limited the ability of businessincome earners to deduct the full amount of their childcare expense. This limitation, they argued, was a violation of the petitioners’ constitutional right to due process under the Fifth Amendment. In neither case was the argument successful. While both cases pre-date most of the development in US constitutional sex-discrimination law, it remains useful to consider

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the reasons behind the failures, since the failures would provide information to Canadian feminists about the potential arguments that might arise in a tax challenge framed in the context of equality law. In Namack, a childcare expense was disallowed as a tax deduction because the Namacks made too much money – their combined income was over the allowed limit for entitlement to the childcare deduction. Mrs. Namack argued that s. 214(b) violated the Fifth Amendment to the United States Constitution. Childcare had usually been the woman’s responsibility and the costs of such care was a necessary expense of a woman’s employment. Her expenses should be allowed as either a childcare expense under s. 214(a) or as an ordinary business expense under s. 162. The Court began its decision by noting that historically, childcare expenses were considered “essentially personal in nature and therefore nondeductible” even when incurred to enable a taxpayer to work.3 In s. 214, the government had chosen to nonetheless allow a limited deduction for childcare. Suggesting a certain level of ingratitude on the part of the petitioners (a failure to recognize the benefit that the government had extended to the needy), the Court concluded that s. 214(b) was constitutional and disallowed the s. 214(a) deduction. The Court then turned to the argument that the expenses were ordinary and necessary business expenses under s. 162. The problem for the Namacks, the Court found, was s. 262. This section specified that no business deduction could be taken for “personal, living or family expenses.” Certainly, it was a difficult problem to separate business from personal expenses: some business expenses undoubtedly had a personal component. The limited childcare deduction, in the Court’s view, was intended to give recognition to the reality that in some circumstances, childcare expenses might be somewhat analogous to business expenses.4 The Court concluded that Congress acted reasonably in extending a deduction at all, and that the classification restricting the deduction to less affluent families had a reasonable basis. Furthermore, it concluded that when a classification has some reasonable basis, “it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.”5 The Court specifically stated that it was not finding the s. 214 deduction to be the best possible solution, noting that conflicting claims of morality and intelligence could be raised by proponents of every measure. However, in its view, “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.”6 Nor was the Court troubled by the gendered impact of the provision: “A different conclusion is not called for simply because the nondeductibility of certain child care expenses might impose a particular burden on working women ... in view of the fact that men and women

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sometimes perform different roles in our society, it is not unusual for particular applications of those provisions to affect members of one sex more than members of the other.”7 Through its reference to different roles, the Court invokes echoes of the nineteenth-century notion of separate spheres. Further, in its comment that a provision may legitimately affect members of one sex more than the other, the Court discloses a vision of equality carrying traces of the notion of “different but equal.” The Court here expresses its sympathy for the fact that the laws sometimes work to the detriment of different women, but states that “the remedy is in legislation.”8 Such comments reveal another deep thread – the division between legislators and courts, and the different roles played by them. The Court stops the effort to bring about social change through litigation, directing the participants to a different field of battle. As the judge in Namack said, Congress may not have gone far enough in its legislation, but such concerns should be addressed to Congress and not to the court. A second US attempt to use constitutional arguments in the domain of tax law occurred in Baldwin.9 In this case, the Court held that childcare was neither deductible as a business expense (s. 162 IRC) nor as an expense incurred for the production of income (s. 212 IRC). Again, the “but for” test seen in earlier taxation challenges was argued for and rejected. The Court drew a distinction between expenses that “enable” a taxpayer to carry on business, and those incurred “in the conduct” of that business. The Court was unmoved by the argument that the taxpayers were compelled by law to provide childcare. Such compulsion, it found, “does not change the personal nature of the expenses.” Childcare, it concluded, was a personal expense and allowable only to the extent provided for under the limited s. 214 IRC childcare deduction. The Court then turned to the equality argument, finding that the petitioners had failed to prove that any arbitrary or invidious discrimination existed as a result of this limitation. Referring to comments in Namack about the different roles sometimes performed by men and women in society, the court declared that s. 214 “does not necessarily violate working women’s rights simply because it might impose a particular burden on them.” A further problem, according to the Court, was that the Baldwins had filed a joint return, and therefore the disadvantage was to both of them and not just to her – she had not, then, shown discrimination on the basis of sex since both she and her husband were mutually disadvantaged by the limitations of s. 214(b). The Court again concluded by saying that concerns about inequity in taxation were more properly addressed to Congress than to the courts. Three kinds of arguments emerged in these two unsuccessful US equalitybased challenges, and these arguments would be critical as Canadian feminists theorized the challenges that might occur in a Canadian context.

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The first kind of argument involves the tax code distinction between business and personal expenses. As I noted earlier, the business/personal distinction does not map cleanly onto the public/private divide. Nonetheless, the statutory language of the business/personal distinction resonates with the deeper public/private divide in ways that bear exploration. Indeed, the cases suggest that the business/personal distinction may serve to reinscribe and re-enforce the gendered dimensions of the public/private distinction. The second category of argument raises the matter of judicial deference. Again, the courts emphasized the importance of deferring to legislative choice to provide only limited childcare deduction. The third kind of argument deals with claims based on equality. Both cases reveal dissonance among various visions of equality. The petitioners argued that the limitation of the benefit resulted in substantively different treatment of men and women. However, the judicial view of equality argued that, because the deductions could be claimed by either men or women, there was no discrimination and no inequality. Clearly, a contender would have to confront the reality of differing visions and conceptions of equality. The overlap of the business/personal with the public/private divide, judicial deference to legislative choice, questions of equality; these were the issues that had emerged in British, Canadian, and US case law. A Canadian challenger would have been alert to the need to address these issues in any attempt to deal with questions of childcare through a constitutional challenge to the Canadian Income Tax Act. The Canadian Litigation Landscape In the US, given the language of its Bill of Rights and constitutional texts, equality-seeking through the courts was an established feature in politics.10 Women’s groups in Canada, unlike their counterparts in the US, did not have a history of making significant use of litigation as a major location for political action. In part, this was because US and Canadian women had somewhat different experiences of the State, and these experiences produced women’s movements with slightly different political cultures.11 The Canadian orientation was towards what Vickers calls “radical liberalism”: “A commitment to the ordinary political process, a belief in the welfare state, a belief in the efficacy of state action in general to remedy injustices, a belief that change is possible, a belief that dialogue is useful and may help promote change and a belief that service or helping others is a valid contribution to the process of change.”12 The political culture of Canadian women developed in a constitutional context without an explicit text of “rights,” a context influenced by issues of parliamentary supremacy and federalism. The discourse of rights did not fit easily into this constitutional context. A challenge similar to the one in Namack or Baldwin simply would not have arisen in Canada at the

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time that the Namack case was argued. Not only was there not a culture of rights-based constitutional challenges but, in the absence of the Charter, there would have been no foundation for the claim and no mechanism for bringing such a challenge. In short, equality-seeking through the courts was not a common feature in Canadian politics before the 1960s. Canadian women adopted equality-seeking rhetoric in a series of cases under the federal government’s Canadian Bill of Rights in the 1960s and 1970s. However, these cases proved disappointing. In the Lavell case, for example, the Court found no inequality in provisions of the Indian Act that stripped Indian women of their registration under the Act if they married non-Indian men.13 And, in Bliss, the Court found no discrimination in provisions of the Unemployment Insurance Act that increased the length of the qualifying period for women claiming pregnancy benefits.14 Any inequality between the sexes, according to Justice Ritchie, was “not created by legislation, but by nature.”15 Despite the high hopes of many, the Canadian Bill of Rights ultimately proved unsuccessful as a vehicle for equalitybased change. However, the Canadian legal landscape of the late 1980s was quite different from that of the 1970s. In 1982 the Canadian Charter of Rights and Freedoms became a solid and entrenched feature of the legal landscape and the explicit rhetoric of rights began to be deployed in the courts. Feminist litigation through the 1980s showed some success. Indeed, the landmark case of Andrews brought about a significant change in the interpretation of a key legal concept – equality.16 However, as Brodsky and Day point out, the majority of sex equality cases in the first five years of Charter litigation most often gave men access to rights or entitlements that had been achieved for women over the years, without going any distance towards alleviating concrete inequality for women.17 It was already patently clear that, to a large extent, economic differentials remained and were often kept in place by the divisions of public and private that constructed childcare as the private responsibility of mothers/families, as a matter outside of government concern. Indeed, though symbolically progressive, equality discourse was sometimes leading to the dismantling of services originally put in place to assist women. Without dismissing the importance of the symbolic gains, there were good reasons why feminists also sought gains that would result in material economic restructuring and challenge the structure maintaining gendered economic differentials. But there were interesting implications of the new Charter that remained to be fully developed. The Court’s new substantive vision of equality suggested new obligations on government and a destabilizing challenge to the traditional distinction between positive and negative liberties.18 The Charter guaranteed not simply “equal protection” but also “equal benefit of the law.” The government could not claim that it was obligated to

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conform to principles of equality only in the context of legislative schemes imposing burdens. The Charter would also apply in the context of benefitgranting legislation. While the government was under no initial obligation to provide benefits, where it chose to do so, it would be required to do so in conformity with the principles of equality set out in the Charter. The question being posed by legal feminists was, then, whether or not there was now sufficient flexibility and openness in the Canadian legal system to bring an equality-based challenge via the Income Tax Act. Was it possible to use equality arguments directly in the socioeconomic realm – to challenge the traditional boundaries of public and private? What were the possibilities of approaching the problem with the new legal tools available under the Charter? Was there a means to use these tools – either to free up additional government funds for childcare or to push the issue back onto the public agenda? On the basis of case law from Canada and other jurisdictions, it was likely that any challenger would have to meet three main assertions: • •

•

Childcare expenses are personal expenses, not business expenses, therefore they cannot be deducted from revenues. Courts must defer to legislative will, and therefore childcare expenses (whether characterized as business expenses or personal expenses) can be deducted only to the extent set out in the limited deduction section. The limitation of deductibility is not discriminatory since either parent can claim the deduction.

How might these assertions be met in the Canadian context? What specificities in Canadian law might allow for challenges to the interpretations made in previous court decisions? What strategies might be available to a challenger hoping to meet and defeat the above three assertions? Calculating Profits: Thinking Business, Thinking Personal The first line of attack for a challenger would be to contest the characterization of childcare as a personal (private) expense. Previous challengers in Bowers, Smith, and No. 68 unsuccessfully argued that childcare expenses were deductible from business income in the form of business expenses. They were defeated in part by the claim that childcare expenses were personal expenses, not business expenses. Any challenger in the Canadian legal arena would have to start squarely with the text of the Income Tax Act as it was in the 1980s. And thus, it is first useful to have some sense of the taxation context in which the childcare deduction provisions are situated. The general rule of taxation in Canada is that tax is calculated on an individual basis: married couples do not file joint returns.19 While deductions are in place that recognize the

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interrelationships of people, the rule is that each individual must file his or her own return. Section 3 of the Income Tax Act requires that each taxpayer compute separately the income from every relevant source (business, property, wages, etc.). Separate subdivisions in the Act set out the rules for computing income from different sources. Subdivision (a) sets out the rules for income from office or employment, while subdivision (b) sets out the rules for business or property. Capital gains or losses are dealt with in subdivision (c). Once income has been calculated from all sources, the totals are aggregated and taxpayers are allowed the general deductions under subdivision (e). According to s. 4(2), subdivision (e) deductions (that is, ss. 60 to 63) are not applied until the taxpayer has calculated the aggregate of net income from all sources. Section 4(1) states that deductions can only be made prior to the aggregation of income if those deductions are wholly applicable to a specific source of income. While it is possible to claim a deduction under more than one section, s. 4(4) specifies that no deduction can be claimed twice. Thus, to construct the argument that childcare expenses can be deducted as business expenses, a challenger would have to start with subdivision (b), which sets out the rules on how to determine income from business. The rules most relevant to a challenge are contained in sections 9 and 18. Section 9(1) says business income is a taxpayer’s “profit” from his or her business. The term “profit” is not defined by the Act – it is a question of law left to judicial interpretation. Profit, according to the Canadian courts, is found by subtracting business expenses from business revenues. But this begs the question: what is a business expense? In part, Canadian courts have answered this question by asking whether the deduction is consistent with ordinary business principles or accepted business practices.20 Of course, since ordinary principles and accepted practices tend to simply reflect a status quo, they are not the final word. Further guidance comes in s. 18(1)(a) and (h): expenses may be deducted only to the extent that they are made “for the purpose of gaining or producing income,” and expenses of a “personal or living” nature are specifically prohibited. It is in this text and its judicial interpretation that the beginnings of a challenge would be found. In Baldwin and Namack, US courts concluded that childcare was a personal or family expense. A Canadian challenger would have to defeat precisely this conclusion. How might a challenger argue that childcare was a business expense, an expense not precluded by being of a personal or living nature? A challenger in the late 1990s would have some useful artillery going into the battle. Most notably, Canadian taxation judgments had seen a liberalization with respect to business expenses and courts had been taking an increasingly relaxed approach to the division between “business” and “personal.”

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Before 1948, the predecessor business-expense section of the Act disallowed deductions for “disbursements or expenses not wholly, exclusively and necessarily laid out or expended for the purpose of earning income.” To be deductible under the older regime, an expense had to be productive of actual income. However, with the 1948 revisions, the focus gradually moved away from the process of earning income, concentrating instead on the purpose of the taxpayer making the expenditure. There was no requirement that the expenses generate specific revenues, only that they were made with the expectation that the expense would assist in the generation of revenue. In fact, the court concluded that an expense could be deductible even if it were not productive of any profit at all. The concept of “profit,” and its related concept of proper business deductions, had expanded over the years, responding to changing ways of doing business. Things that were not previously considered business expenses – damages, club dues, conference expenses, management fees, and charitable donations – were now recognized by the courts as business expenses in certain circumstances.21 The fact that such expenses, such as business lunches, might have a personal component as well as a business component did not lead courts to disallow the expenses. Would this liberalizing trend apply to childcare, something which popular wisdom and history had placed so firmly within the separate sphere of home and family? Though the text of the Income Tax Act had become more open, courts carried with them remnants of their historical past. Even in the face of the more open language, courts continued to use language such as “in the process of earning income.” The older, more restrictive understandings of business expenses had not simply vanished in the light of a newly emerging more liberal trend. Still, cutting against the historical weight of these older cases were the new and more contextual interpretive approaches being adopted by the courts. From a strategic point of view, then, it would be important that a court be provided with evidence illustrating that childcare – something not previously considered a business expense – was an expense assisting in the generation of revenue. The goal would be to establish that these expenses were incurred for the purpose of earning income. To de-centre the presumption that childcare was “clearly personal,” it would be necessary to introduce evidence establishing the presence of a connection between childcare expenses and the business practices/needs of businesswomen. The hurdle to leap would be the argument that childcare simply was not within the realm of business. The “personal” nature of childcare had, in earlier cases, been a dominant reason for finding that such expenses did not fall within the realm of business. There appear to be two concepts wrapped up in such decisions: first, that business is a gender-neutral concept and childcare is a gendered one (thus, not neutral); second, that there

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is a line that separates the public from the private and childcare is located squarely in the private. A challenger would have to argue that the meanings had to change because the situation had changed. This, again, would require the introduction of material about the concrete situation of women. Certainly, from 1972 to 1988, there were changes in the social, political, and business environments that would open up room for redebate. In particular, there was the massive entry of women (and particularly of women with children) into the paid workforce.22 This shift in workforce demographics suggested the need to reexamine policies based on assumptions of distinctly different spheres of public and private life. There was also a burgeoning literature exploring the gender specificity of society and illustrating that business was not gender-neutral, but was rather “androcentric” – that its norms were male norms.23 One argument for a challenger would be that the concept of “business expense” must reflect the business practices of both men and women, and that women’s business practices and needs might be different from men’s. In other words, the challenge would be in part to illustrate that older ideas about the content of business expenses were shaped by the needs and practices of businessmen only: that the concept was underinclusive, denying the business needs of women to the extent that they differed from those of men. To be successful a challenger would have to defeat a significant body of precedent to the contrary. This would mean arguing that the definition of business was not neutral, rather, that it reflected the needs and interests of businessmen and that it should also accommodate the needs of businesswomen, even if these were different from the needs of businessmen. Here, there would be a need to provide expert evidence establishing the change in the workplace and discussing the relationship for mothers of work and childcare responsibilities. Again, there would be some legal support for this approach. In several Charter cases, the Court had already made statements that would seem to undermine the notion that children were simply a personal matter. In Brooks, for example, the Court stated that it was wrong to equate pregnancy with voluntary lifestyle choices and so impose the burden of procreation (which benefits everyone in society) solely on the shoulders of women.24 The Supreme Court had affirmed that, in considering the interpretation of taxing statues, courts should look not simply at “juristic classification of forms” but, rather, at “commercial and economic realities.”25 Such language opened room for the argument that the commercial and economic realities for businesswomen included a consideration of their childcare needs. Such an approach would resonate with the conclusion of the RCEE that opened Chapter 2: childcare responsibilities were the single most significant barrier to women’s successful workforce participation.

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In short, it might not be necessary to say that childcare had no personal aspect to it. It might be sufficient to argue that childcare was a hybrid expense, capable of having a business dimension to it as well as a personal dimension. The wording of s. 18(1)(a) of the Income Tax Act indicates that no deduction can be made “except to the extent it was made or incurred by the taxpayer for the purpose of gaining or producing income from the business” (emphasis added). At least in theory, this suggests that one should allow the allocation of a hybrid expense into a deductible business part and a non-deductible personal part: one should be able to say “60 percent is business, 40 percent is personal, and therefore 60 percent is deductible.” And indeed, hybrid expenses are not uncommon, though they have sometimes been subject to very stringent tests, or limits as to the percentage deductible. So, for example, the test for a home-office expense under s. 18(12) is quite stringent and s. 67.1 limits the deductible portion of meal and entertainment expenses to 80 percent. However, despite these limits, hybrid expenses are allowed, albeit in a manner that acknowledges the mixed character of the expense. Indeed, given the requirement in s. 67 that the outlay for a business expense must be reasonable, there would be strong grounds for an argument that the presence of a personal dimension to childcare should not disqualify the expense in contexts where it could also be shown to be a legitimate business expense. Playing the Trump Card? Legislative Intent in the Face of Hybrid Expenses The second hazard to a challenger would be the presence of s. 63 of the Income Tax Act: the provision authorizing a limited childcare deduction for those requiring childcare services in order to earn income. In the US, courts concluded that equivalent sections in their tax code provided evidence of legislative intention to allow only a limited childcare deduction, regardless of the business or personal nature of the expense. Following this line of reasoning, even if a challenger could successfully argue that childcare was not a prohibited personal expense, she might find herself confronting an argument that the business nature of these expenses was trumped by s. 63 – that s. 63 was a legislative “final word” on childcare, and childcare expenses could be claimed only under s. 63. A challenger would have to convince a court that nothing in the language of the Act revealed a legislative intent that childcare be dealt with exclusively within the boundaries of s. 63. In the Canadian context, courts had made many pronouncements about ascertaining legislative intent. While courts would admit evidence such as Hansard proceedings or committee reports from the government about its intentions, they most often claimed that it was notoriously difficult to ascertain intent from such documents. In general, intent was to be

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ascertained from the legislation itself, using standard principles of statutory interpretation. The text of the Income Tax Act could certainly be interpreted in ways favourable to a challenger. The structure of the Act worked against viewing s. 63 as a complete code for childcare. Section 63 deductions were taken after the aggregation of all sources of income, which was itself done only after the calculation of income from specific sources. Arguably, if a childcare expense could be characterized as a business expense, it would be deducted much earlier in the game. There was no language in s. 63 specifying that it was the sole avenue for the treatment of these expenses. Further, s. 4(4) stated that a deduction could not be deducted twice. This statement implied that there were deductions that might fall under two or more sections of the Act. In support of this interpretation, there was Olympia Floor and Wall Tile.26 Here, a company had made substantial donations to Jewish charitable organizations in the Montreal area and had deducted the total of these donations as business expenses. At the time, s. 27(1)(a) of the Income Tax Act permitted the deduction of charitable donations up to 10 percent of income. As in the case of the limited childcare deductions, the charitabledonations deduction was to be taken after income was calculated. The Minister of National Revenue concluded that the donations were to be deducted under the “charitable donations” section, rather than as business expenses: the company could not deduct the full amount of the donations. The company protested, arguing that the donations were more than just a form of charitable giving. Rather, the donations were a form of advertising or promotional expense designed to create goodwill and enhance the company’s prestige in the Montreal Jewish community, in hopes that business contracts would then flow to the company. The Court was thus called upon to consider the relationship of the limited charitabledonation deduction to the general provisions dealing with the deduction of business-expense provisions. As the Court articulated the question in that case, “Must one infer from the existence of s. 27(1)(a) a prohibition against any deduction of a charitable contribution in the computation of income?” The Court, in this case, did not draw such an inference. The Court found that certain expenditures might have both personal and business aspects to them. The issue was not the intrinsic nature of the expense but whether or not the expense was made for a business purpose. A given expense with a mixed purpose, though personal from one perspective, could nonetheless be legitimately deducted in circumstances where the gift was made for the purpose of producing income. The Court accepted the taxpayer’s argument that, in the Montreal context where he was doing business, the rules required him to invest in the community. Though he was making charitable donations, he was doing so because of

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an interest in his business and not for a specifically charitable purpose. Thus, the taxpayer was not limited to the amounts permitted under the charitable-deduction provision, but was able to claim the full amount of those donations as a business expense. Based on Olympia, a challenger could make the argument that the limited childcare deduction in s. 63 did not prohibit the claiming of childcare expenses under the general business sections. If a given childcare expense could be shown to have been made for a bona fide business purpose, it should be able to escape the limitation of s. 63. Two interpretive principles might assist a challenger making this argument. In Bronfman Trust v. The Queen, the Supreme Court commented that, when dealing with ambiguity resulting from a lack of explicitness in taxation statutes, ambiguity should be resolved in favour of the taxpayer.27 On the question of whether or not s. 63 was a complete code for childcare, a challenger could argue that the text of the Act was at best ambiguous. Further support could be found in case law holding that the interpretation of statutes should be informed by the values underlying the Charter.28 That is, in the face of ambiguity or multiple interpretations, the courts should not choose an interpretation that is inconsistent with the Charter and its values. This last interpretive principle would focus a challenger’s attention on the third hurdle: crafting an argument to illustrate that, as it was then being interpreted, the Income Tax Act violated the equality provision of the Charter. Equality and Discrimination The third problem would be to convince a court that, even if s. 63 did reflect a legislative intention to limit the deductibility of childcare expenses, this intention violated the equality guarantees of the Charter: the very act of limiting the deduction was discriminatory and therefore unconstitutional. In the US cases, the discussion of equality seemed to be inflected by three tendencies: to prefer formal to substantive equality approaches, to require evidence of a governmental intent to discriminate, and to only reluctantly apply equality doctrines to taxation statutes. Beginning with the third of these tendencies, one must note that even in the heyday of the judicial use of the due process clause to oversee legislation regulating private business, the US Supreme Court virtually deprived the equality guarantee of any jurisdiction over the federal taxing power. In Brushaber v. Union Pacific Railroad, the Court stated that “the Constitution does not conflict with itself by conferring upon the one hand a taxing power and taking the same power away on the other by the limitations of the due process clause.”29 To be sure, the Court went on to say that courts could intervene if the taxing provision “was so arbitrary ... that it was not the exertion of taxation but a confiscation of property,”30 but this reservation of the residual judicial function in extreme cases became

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a virtual dead letter. Generally, the courts did not intervene, even while they held that numerous regulatory statutes violated the due process clause. According to Boris Bittker, the courts sensed that the federal income tax code was “so full of debatable distinctions that any attempt to police the Code in the name of substantive due process would lead them from one provision to another in a never ending process of judicial review.”31 Would the Canadian Supreme Court take a similarly reluctant approach to the application of equality doctrine to the Income Tax Act? In Canada as in the United States, while deference to legislative decisions was the general rule in Canada, legislative distinctions remained subject to constitutional scrutiny. Prior to the entrenchment of the Charter in 1982, judicial scrutiny focused primarily on questions of federalism and the appropriate division of legislative powers. However, s. 52 of the Charter declared that any legislation or governmental action that violated the provisions of the Charter was of no force or effect. In 1987, one Canadian trial court judge used language somewhat like that coming out of the US courts in suggesting that some forms of legislative scrutiny risked “trivializing the Charter.”32 However, nothing in the text of the Charter suggested that fiscal or social welfare legislation should be immune from equality scrutiny. While the question remained to be answered by the Supreme Court, few commentators suggested that taxation statutes could be seen as immune from scrutiny. Presuming, however, that courts would not find taxation legislation immune from equality scrutiny in Canada, the question for a challenger would be how to frame an equality challenge so as to avoid the other two hazards that were seen in both Namack and Baldwin, namely a focus on intention to discriminate and a concern with formal equality. Recall that in those two cases the courts concluded that, since the deduction could be claimed by either men or women, there was no evidence of sex-based discrimination. As mentioned earlier, Canadian equality law followed a new path of development throughout the 1980s, and this new path would open up some different possibilities on an equality challenge. In order to better articulate the kinds of strategic possibilities available to the childcare constitutional challenger, it may be helpful to briefly review the state of 1980s Canadian equality law. The text of the Charter sets out a number of freedoms and rights that are guaranteed to people in Canada. These rights and freedoms, though articulated in broad and expansive terms, are not absolute: s. 1 of the Charter declares that the rights and freedoms enumerated within are subject only to “such limitations as can be demonstrably justified in a free and democratic society.” In its seminal decision in R. v. Oakes, the Court determined that Charter

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claims required a two-stage analysis.33 At the first stage, the Court deals with “the right” allegedly violated (be it equality, mobility, expression, etc.). The question is whether the right has in fact been limited by government action. Canadian courts have taken a broad approach at this stage, giving generous interpretations to these rights. This generosity of interpretation is limited by the requirement that the analysis be purposive: that the rights be interpreted in a manner that advances the purpose for which the right was designed.34 This purposive approach allows the Court to be generous in its interpretation but at the same time manages to stem the flow of wasteful or frivolous litigation. Questions of justification are not relevant at this stage of the analysis. The only question is whether or not the right has been infringed, and here, the burden of proof lies on the person alleging the violation. Where the Court concludes that a complainant has successfully shown that one of his or her rights or freedoms has been limited, it moves to the second stage of analysis to determine whether or not the limitation can be justified under s. 1 of the Charter. At this stage the burden of proof shifts to the government.35 The government has the responsibility to show that the law is a reasonable limit on the right or freedom, a limit that can be “demonstrably justified in a free and democratic society.” The government must persuade the Court that: the law pursues an objective that is sufficiently important to justify limiting a Charter right; the law is rationally connected to the objective; the law impairs the right no more than is necessary to accomplish the objective; and that the law does not have a disproportionately severe effect on the persons to whom it applies.36 The standard that the government must meet is the civil burden of proof, and it is required to adduce evidence on each point in its case. Generally, the courts have placed a high burden of proof on governments seeking to justify discrimination and a relatively lower burden on individuals attempting to establish a violation of a right or freedom. There is a certain kind of common-sense appeal to this approach. Individuals have far fewer resources than governments and it is thus more difficult for them to bring legal actions of the Charter kind. Where the claim of discrimination is one with some merit, the serious work of balancing competing interests occurs at the second rather than the first stage of analysis. When a court is able to examine a claim in the context of a s. 1 analysis, it generally has the advantage of extensive background information. Because the government is required to adduce evidence concerning its objectives, the impact of its legislation, and its attempts to minimize those impacts, the issue is richly contextualized. The court can get a much more thorough appreciation of the factors on all sides of the case, as well as a better sense of the issues that are at stake. The court also has flexibility to deal with both the problem and possible solutions. Using evidence provided at

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the s. 1 stage, the court can effect remedies that meet governmental concerns without unduly infringing the rights of citizens. What then had the courts said about equality rights in particular? First, they found that a plaintiff had discharged his or her burden where the legislation in question was discriminatory on its face, or where there was a clear statement of legislative intention to discriminate. This would be of little assistance to a challenger in crafting a strategy because the Income Tax Act did not discriminate against women on its face: the legislation explicitly extended the “benefit” of the childcare deduction to both men and women. However, courts also determined that Canadian equality rights focused not only on formal equality and fair process, but also on equality of condition: a complainant could successfully show a violation of the equality guarantee by establishing that a law had a discriminatory adverse impact.37 Here, the courts concluded that the focus should be on effects, not intention.38 Lack of intention to discriminate (while admirable) was irrelevant to the matter of whether or not discrimination existed. The question was only whether the complainant could show the existence of intentional or adverse-impact discrimination on the basis of one of the prohibited grounds under s. 15 of the Charter (which includes race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, citizenship, and sexual orientation). Thus, if the court were to continue its line of development, the question would not be whether the Charter applied to taxation legislation. The question would be, rather, whether a challenger could establish that the legislation violated the equality guarantee and, if so, whether the government could justify that violation. How then would a challenger apply this theory? A challenger would have to show that the Income Tax Act, as interpreted by the Minister of National Revenue, violated the equality guarantee in one of two ways: either through its characterization of women’s childcare expenses as “personal” or through the limitation of childcare expenses in s. 63. The essential argument at this point would be that a restrictive interpretation at either of the steps above (whether via seeing childcare as excluded because of its “nonbusiness” or “personal” nature, or excluded via treating s. 63 as a trump card) would constitute a violation of the equality guarantee. Because of the Canadian shift from merely formal to substantive visions of equality, this sort of claim would be much easier to bring in Canada than in the UK or the US. The challenger would be working in the realm of adverse impact, attempting to establish that this restriction had a more detrimental impact on women than on men. Again, it would be necessary to produce some evidence on this point. However, given the number of studies generated during the childcare debates of the 1970s and 1980s, there was certainly evidence available to show that

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women carried the disproportionate burden of childcare in Canadian society. And, if this evidence were persuasive, the government would be required to establish that this adverse-effect discrimination was justifiable. From a strategic perspective, the equality challenge seems to offer real possibility. Of course, there would be some very thorny equality issues to deal with and the challenge would thus also pose some very real threats and hazards. The first of these hazards would concern the relationship of gender and parenthood. In establishing discrimination, should the focus be on women as women, women as mothers, or women as gender-neutral parents? That is, was the discriminatory impact based on “gender status” or was it based on “parental status?” Recall that in the US case of Baldwin the court found that, since there had been a joint tax filing, both husband and wife were equally disadvantaged.39 A challenger would have to be prepared to show that there was adverse-impact discrimination even though there were cases where the legislation might have a detrimental impact on both women and men. In this context, it would be important to think about the remedy sought. If a man were solely responsible for childcare, should he also be able to claim the deduction under this section? If a child had two working parents, which one of them should be permitted the deduction? Was the goal to allow only women to fully deduct childcare expenses, or was the goal to allow either the mother or father to make these deductions? Such questions would push a challenger square into the complexity of the legal problem before the court. A second very real hazard in the equality claim would be the class-based implications of success based on gender. A win on the grounds of business expense might produce positive economic implications, but only for a rather limited category of women (and possibly men). First, the deduction was only available to those earning income from business and, in that category, there were still a relatively small number of women. Second, deductions being what they are, the possibility of deducting these expenses would remain illusory to those businesswomen who could not afford to make childcare payments in the first place. Thus, it is arguable that, in the interests of gender equality, there would be an increase in class inequality. The gender-disadvantaged woman did come complete with her own less sympathetic, class-privileged shadow double – the “discriminating” woman. A third hazard might centre on questions of who caused the “harm” and the role played by “choice.” In the US cases, the courts implied that any burdens in tax law are related to the roles that men and women choose to perform. It would be expected that the Canadian government would similarly argue that, if there were any disadvantage to women, it was not disadvantage caused by governmental action but disadvantage caused either by society or by the choices women themselves made about childrearing and employment. Such an argument would be reminiscent of Sears

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v. EEOC,40 where Sears argued that the relative absence of women in higher-paying commission sales jobs was a result not of any action by Sears but the result of women’s own preferences about work and family. A challenger would have to be prepared for arguments that any disadvantage in the Income Tax Act found its roots in the voluntary choices of women to have children and to assume primary responsibility for their care. In short, an equality challenge in Canada might avoid some of the pitfalls of the American, British, and Australian experiences, but there would be some complex problems to be confronted: the relationship of women to parenthood, the intersection of privilege and disadvantage, and the role of choice. The Politics Surrounding the Actual Challenge Mary Beth Symes and Mary Eberts were well-known figures in the feminist community. Both had been actively involved in the Canadian litigation campaigns to establish progressive equality decisions for women, were early members of the executive board of the Women’s Legal Action and Education Fund (LEAF), and, indeed, Eberts was the lawyer who appeared for LEAF in its first Supreme Court intervention in the Andrews case. Symes and Eberts, like other feminists, had struggled over ways to use the law to bring about changes with concrete economic benefits for women. Both had long understood that taxation was one of the many arenas that caused harsh economic consequences for women. The two, strategizing about ways to challenge the law, focused on the limits to the child-deduction provisions of the Income Tax Act.41 In their early strategizing, they conceived of bringing the case as a three-pronged attack on the Act, using three different income-earning female plaintiffs: a businesswoman, a wageearning woman, and a student earning stipend/fellowship income. The point was to illustrate the multiple ways that the Act’s treatment of childcare discriminated against women. There were, however, some problems from a legal point of view. The case for the businesswoman was built on provisions in the Act dealing with business income. These provisions left open the possibility that childcare could be characterized as a deductible business expense. But the wording of the provisions dealing with employment income were much more rigid. Indeed, s. 8(2) of the Income Tax Act expressly prohibited income earners from deducting any expense in computing their employment income unless the expense was one listed in s. 8(1). Further, the provisions of the Act dealing with wage income did not directly raise issues of public and private. A woman earning employment income simply could not make the same kind of technical tax argument being made by Symes.

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One possibility might be to suggest that wage earners were discriminated against on the basis of their membership in a certain class. But this avenue was not promising since a challenge had already been brought arguing that the class structure enforced by the Income Tax Act violated the equality guarantee in the Charter: the Ontario Court of Appeal had dismissed the argument out of hand.42 Thus, it would have been difficult at this juncture to raise the class issue directly. However, if full deductibility were to be garnered for businesswomen, it might be possible to use the case to launch a second challenge to the business/wage-earner distinction, given the similarities between the childcare needs of businesswomen and employed women. An additional pragmatic problem would be the difficulty of trying to find not simply one but three “right” plaintiffs for the case. They decided that the best strategy was to go with just one plaintiff – the businesswoman – and to bring the case with Symes as the plaintiff. Again, there may have been a variety of reasons behind this decision. First, there was not as much “softness” in the law to bend things on a class basis and the business argument may have seemed the strongest legal argument. The development of equality law suggested that this was an opening and that, if successful, the creation of a “hole” here would create space to bring further cases seeking to extend the ruling to wage-earning women. Second, Symes had standing to make the claim and her claim had already been laid with a solid factual foundation. She was a self-employed lawyer and, between 1982 and 1985, (like some other women in her position) filed income tax returns in which she claimed a childcare deduction as a business expense. These claims had initially been accepted but in 1985, Revenue Canada reassessed her claims and disallowed the childcare expenses, allowing only the smaller amounts permitted under s. 63 of the Income Tax Act. Symes seemed to be the ideal plaintiff. Her nanny, Mrs. Simpson, had been employed exclusively for the care of Symes’s children and had not performed housecleaning or other duties not clearly tied to the care of the children. Mrs. Simpson was an employee of Symes and Symes had not only incurred wage expenses but had also made all other related payments to the Unemployment Insurance Fund and the Canada Pension Program on behalf of Mrs. Simpson. Third, the process of doing feminist test-case litigation emphasized the difficulties of finding the right plaintiff, as well as the sometimes tortuous task of balancing the possible conflicting interests of the plaintiff and “the cause.” Some of these difficult problems might be subverted by having Symes as plaintiff. Symes not only knew and understood the sometimes harsh rules of the litigation game but her personal interests (while they included receiving tax relief for childcare costs) were also consonant with many of the interests of the women’s movement.

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Thus, in 1988, Symes, represented by Eberts, filed a claim in the Federal Tax Court. Symes challenged the Minister of National Revenue’s reassessment and denial of her childcare expenses, and controversy began to flare up around the case. Some people were troubled by her approach, which sought to address the problems of childcare through taxation – an approach that had been specifically rejected time and time again by the Canadian Day Care Advocacy Association as being beneficial to middleand upper-class women at the expense of other women. Others were troubled by complex questions of class and economic privilege. Symes was basing her case in part on information about the costs to women of childcare and yet, some pointed out, she was a member of a subgroup of businesswomen who had a sufficiently high level of income that they could afford to pay for childcare. Other women in the same category, some argued, would be unable to afford to pay for childcare even with the deduction. The rhetoric of privilege raged around Symes being “rich” or “middle-class.” Certainly, as one followed the case, the complexities of talk about class became apparent. While many have pointed out the disparate, classbased implications of taxing statutes, the mapping of tax categories onto categories of class is not simple. So, for example, while the Act draws a distinction between wage earners and business-income earners, those categories do not always map with poverty and wealth, nor with lower-middle and upper-middle class. Put another way, members of the various classes can be found in both categories, as can both the wealthy and the poor. Nonetheless, these complexities were skirted over in much of the discussion of the case. The categories of wage earner and business-income earner became a convenient shorthand for the categories of lower- and upper-class. Certainly, many people identified Symes as belonging to the privileged class: based on her income level, professional status as a lawyer, status as a business-income earner, and, indeed, on the class standing of her husband (a well-paid employee of a community college). There were other issues troubling some activists. Not only did the case involve an explicit challenge to the public/private divide as reflected in the Income Tax Act’s distinction between business and personal expenses, the case was also located uncomfortably on another boundary of public and private: public and private litigation. This was a private case brought personally by Beth Symes. However, it was far from being clearly private. It was not irrelevant that both Symes and Eberts were at the centre of this case. At the time, both Symes and Eberts were public, influential, and central members of both LEAF and the National Action Committee on the Status of Women. The case was not, however, taken up by LEAF as a test case. A variety of reasons may lie behind this decision: it could have been seen as a conflict of interest since Symes was on the executive; LEAF was

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embroiled in an internal debate concerning its guidelines for selecting future cases;43 and given the controversy surrounding the allocation of limited feminist monetary resources, it may have seemed appropriate to pursue the case individually, rather than to pull feminist organizational politics directly in to the mêlée. Of course, given the high profiles carried by Symes and Eberts, it was perhaps inevitable that feminist organizational politics would of necessity be engaged, and that the case, despite being brought personally by an individual, would take on the coloration of test-case litigation. Indeed, early in the process, members of NAC childcare committee approached Symes and specifically asked her not to go ahead with the case.44 There were undoubtedly a number of reasons behind such a request. For one thing, reform through taxation could only contribute to the increasing privatization of childcare, a direction NAC opposed. Second, since NAC’s experience with government had shown the greatest success where women spoke with a unified voice, the request may have reflected NAC’s desire to maintain a united front in favour of a national daycare system. Part of this desire may have been bound up with the fear that a success for Symes might produce a splintering in the daycare coalition: if wealthier women could have their childcare needs better met through taxation, they might stop pushing for more radical childcare reform. Third, NAC may have been conscious of the possibility that the case would exacerbate race and class splits already present in the Canadian women’s movement. At the time, white middle-class feminists were starting to hear the claims of immigrant women, women of colour, and low-income women that the women’s movement was exclusionary, expending its energy and capital only on the needs and desires of middle- and upper-middle-class women. NAC may have feared that the Symes case would contribute to the belief that organized feminism in Canada was only for able-bodied, heterosexual, middle-class white women. Symes declined to drop the case, lines of affiliation were drawn, and there was discussion throughout feminist circles in Canada about the case. The major feminist organizations were not officially involved in the case. The case was, however, supported by a number of women and organizations, and a fund was set up for those who wanted to contribute to the legal costs. It was not simply a matter of feminists being opposed to the case. There are often significant political differences between ordinary litigation and test-case litigation. The Symes case blurred those distinctions. While Symes brought the case as an individual (using individual resources, not the resources of NAC or LEAF), the case was treated as if it were a piece of organizationally based test-case litigation. Though neither NAC nor LEAF was officially involved, they were involved through implication:

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Symes and Eberts as executive members of LEAF; NAC by requesting them to withdraw the case. Thus, while Symes had only her own resources to use (supplemented by donations from interested others), she would be held to standards of test-case litigation (in terms of paying attention to the needs of the community), and judged accordingly. In the chapter that follows, a chapter using the narrative device of a play, I explore how this pre-trial strategic thinking worked itself out when the various players involved in the case entered the legal arena.

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Part 2 “The Play’s the Thing”

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4 Strategy and Practice: The Play’s the Thing

Didi Herman, in her book on Canadian struggles for queer equality, focuses on the relationship between social movements and law reform. She avoids prioritizing what goes on in court and explores “how diverse texts, actors, strategies, and politics affect this engagement.”1 Chapter 2 examined how the relationship between Canadian social movements and law reform influenced the emergence of Symes in the early 1990s. In Chapter 3, I suggested that any successful strategic attack on the Income Tax Act would require evidence: evidence about the disproportionate burden of childcare responsibility carried by women; evidence about the relationship between childcare responsibilities and the world of work; and evidence about the ways that the division of the world into separate public and private domains obscures the ways that these worlds, for many women, are very much connected. Canadian women’s experience with litigation had shown time and again the importance of placing information – evidence to rebut established presumptions about women – before the court. Expert evidence was essential. Here, I have two goals. The first is to follow the strategies suggested in Chapter 3 through all levels of the legal arena. How did the strategies articulated in theory function once they were put into practice? Was Symes able to negotiate the hazards and pitfalls identified earlier? My second goal is to expand the analysis to include an explicit focus on “talk” – on the discourses that emerged in the three courtrooms. I do so because of a belief that language matters. It is not just a transparent tool for expressing facts but is also the material in which facts are constructed.2 This materiality means that language is central to the construction of knowledge itself. Discourse matters because it is in discourse that power and knowledge are joined together.3 The treatment that follows is therefore influenced by the view that law is not simply a code of rules but is also an arena – an arena in which diverse communities struggle over the meaning to be given to words and over political distributions of social power.4 In these struggles, language functions both as capital deployed and as object of struggle.

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The pivotal role of language is revealed in this case in the tension between arguments seeking to invoke a sociological explanation and those relying on a liberal individualist paradigm. C. Wright Mills captures the differences between these two explanations of social life by drawing a distinction between “the personal troubles of milieu” and “the public issues of social structure.” He describes them as follows: Troubles occur within the character of the individual and within the range of his immediate relations with others; they have to do with his self and with those limited areas of social life of which he is directly and personally aware. Accordingly, the statement and the resolution of troubles properly lie within the individual as a biographical entity and within the scope of his immediate milieu – the social setting that is directly open to his personal experience and to some extent his wilful activity. A trouble is a private matter: values cherished by an individual are felt by him to be threatened. Issues have to do with matters that transcend these local environments of the individual and the range of his inner life. They have to do with the organization of many such milieu into the institutions of an historical society as a whole, with the ways in which various milieu overlap and interpenetrate to form the larger structure of social and historical life. An issue is a public matter: some value cherished by publics is felt to be threatened. Often there is a debate about what that value really is and about what it is that really threatens it. This debate is often without focus if only because it is the very nature of an issue, unlike even widespread trouble, that it cannot very well be defined in terms of the immediate and everyday environments of ordinary men. An issue, in fact, often involves a crisis in institutional arrangements, and often too it involves what Marxists call “contradictions” or “antagonisms.”5

To conclude that something is either an issue or a trouble is to determine the range of possible solutions. To characterize a problem as an issue is to focus not on individual solutions but on social structures and their influence on outcomes in daily life. It is to turn attention away from “individual pathology” and towards the “ills of society.”6 The battle to determine whether any given problem is one or the other is a battle over language and meaning, a battle conducted on a politically loaded discursive terrain. Some argue that professional languages (e.g., law) are examples of single-voiced discourses.7 I argue in favour of troubling this assumption, of trying to reclaim the other voices present in legal discourse. Indeed, I argue in favour of reading judgments in a way that is more dialogic than monologic.8 Thus, in the unfolding of the Symes case through the courts, I follow Herman’s lead, focusing on discourse as a means of illuminating

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the way the various judgments were affected by diverse texts, actors, strategies, and politics. In the unfolding, the ways that sociological, liberal individualist, conservative, feminist, patriarchal, and economic-capitalist discourses interact in the legal arena become evident. Even the evidence presented is less a simple display of “facts” than the intersection and competition of different discourses for the power to define the implications of these facts. Each discourse suggests differing ways of identifying and understanding the mixtures of privilege and disadvantage in the case. PROLOGUE Ladies and Gentlemen, following the Symes case from the Trial Court through the Court of Appeal to the Supreme Court, we will reveal how intersecting discourses gradually narrow into the language and vocabulary of law. This narrowing will show how legal language functions not only by validating elements of certain discourses but also by obscuring some and erasing others. However, while this narrowing is part of the story, it is not the whole story. The unfolding of the case will reveal as well the unruly and rebellious nature of discourses fighting against silence and erasure. In the three judgments, we will see a language of expansion as law shifts in response to complex challenges, modifying itself (even if ever so slightly) to incorporate dimensions of these different discourses. In the struggle of voices over the unfolding and interpretation of “the facts” in the Symes case, we will see evidence of Richard Terdiman’s insight that “no discourse is a monologue.” 9 In this drama, the Symes case will unfold in five acts. Act I will examine the evidence produced at the Trial Court level. We will see the emergence of several themes: the struggle between individual and sociological explanations, the importance of naming, and the recurrence of discourses of choice, obligation, equality, and privilege. Act II will articulate the legal arguments mustered, summarize the Trial Court judgment, examine early academic responses, and summarize the judgment of the Court of Appeal. In doing so, we will explore the differences in how both the trial and appeal judges filter and distil the evidence and the arguments presented in the courtroom. Act III will examine the arguments of the groups that were given status to intervene in the case and comment on critical moments from the Supreme Court hearing. Act IV will summarize how members of the majority characterize the material before them and resolve the case against Symes and in favour of the Crown. Act V will play out the dissenting judgment, clarifying the shape of the catastrophe from Symes’s point of view. ACT I Nobody Knows the Troubles I’ve Seen ( ... or was that “Issues”?) A Trial Courtroom: Initial Incident Our play begins in medias res. The setting is the trial courtroom and the case before the Court is Symes v. Canada (Minister of National Revenue).

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SCENE 1 The Expert Testifies Introducing the case, Mary Eberts, counsel for Mary Beth Symes, observes that this is the first case where a superior court has had the opportunity to consider expert evidence on the social and economic context in which childcare expenses are claimed as a deduction.10 The expert called in this case is Dr. Patricia Armstrong, a well-established authority on women and work.11 In her evidence, the sociological paradigm demands its day. Dr. Armstrong asserts that social structures create situations of disadvantage for women who function both as mothers and workers. She states that there has been massive change over the past twenty years with respect to women’s employment.12 In 1951, only 24 percent of Canadian women participated in the labour force, whereas by 1987, 56 percent of women fifteen years and over were counted as part of the labour force (a shift from 22 percent to 43 percent of the total labour force). According to her, it is married women and especially married women with children who account for much of the change. In fact, in 1986, nearly 70 percent of all married women with children were in the labour force for all or part of the year. The past twenty years have seen new patterns of female labour force participation. Having described these patterns, she goes on to discuss childcare needs, the absence of licensed care facilities, and the cost to employed mothers of providing for the care that enables them to participate in the labour force. Here, she adverts to the average income for women working for the full year (just under $20,000) and points out that the least expensive form of care (a babysitter at $3,900 yearly) would consume one-fifth of such a woman’s pretax income while a nanny (at $9,000 yearly) would consume half of this salary. Dr. Armstrong discusses general patterns of parenting in Canada, pointing out that research has shown that childcare remains primarily “women’s work,” even when women work outside the home. Even when men shoulder a larger portion of the childcare burden, they still retain more choice about their time commitments.13 Women’s paid work, she notes, is strongly affected by childcare responsibilities: childcare has a major impact on the continuity of work for the majority of women but little impact on men.14 Dr. Armstrong then makes comments about specific problems confronting self-employed women. There has been a significant increase in the number of self-employed women. These women tend to be found in the service sector, for example, in daycare centres, beauty salons, craft boutiques, and catering operations. While self-employed women carry the same responsibilities for childcare as their wage-earning counterparts, they encounter additional problems related to the nature of their work.

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Self-employment in the kinds of businesses that women operate require long and variable hours. The result is that care services are expensive and difficult to find. Further, women’s businesses run on a smaller profit margin and thus, childcare expenses consume a large part of their profits, often meaning the difference between survival and closure. In brief, her expert evidence is that the major burden of childcare in Canadian society still falls on women. She speaks to the general patterns of these burdens, which we will see echoed in the evidence given by Beth Symes about her household. Dr. Armstrong’s evidence provides concrete support for the argument that childcare dilemmas are far from being personal troubles for women – rather, they are significant public issues. Dr. Armstrong’s evidence invokes threads from several discourses. Not only does she discuss the social roots of childcare dilemmas, she does so from a perspective that draws on insights from feminist discourse and socialist studies. SCENE 2 Three Liberal Responses to the Sociological Paradigm John Power, QC, lawyer for the Crown, responds to Dr. Armstrong from a platform of liberal individualism. The Court, he observes, is not oblivious to the relationship between individuals and society. The law, after all, has worked out notions of responsibility that have accounted for this relationship through such things as reduced sentences and acquittals. It is, however, the individual who must be the starting point of the analysis. The Crown makes three kinds of responses to the sociological paradigm. The third of these is the characterization of the case so as to render the expert evidence irrelevant. The first two responses attempt to diminish the credibility and qualifications of the expert. Of particular interest is that one of these attacks on expertise takes place in the domain of “class” and the other in the domain of “gender.” Response One Class and the “Evil Empire” During Power’s cross-examination on qualification, vocabularies related to class filter into the discourse. In commenting on Dr. Armstrong’s publication list, John Power draws her attention to the fact that several of her articles use the term “Marxism.” His focus on Marxism is interesting when one recalls that the final closures of the Toronto daycare nurseries were related to the success of their opponents in drawing links between daycare and a communist threat. There are a variety of ways of thinking about Power’s concern with Marxism. One possibility is that Power may be highlighting Marxism as a way of trying to discredit Dr. Armstrong. Certainly, Dr. Armstrong seems to think this is what he was doing and meets this

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challenge by clarifying the distinction between an analytical framework and a political strategy. In response to a question about one of her “Marxist” articles, she says: The article is about the theoretical debates that have been going on about how analysis and understanding of work policies are done in Canada. One of the most popular ways of analyzing is to use a theoretical framework called Marxism. I think that it should be clear that this is separable from some kind of political strategy. There are a number of theoretical frameworks used in sociology. The most common one that has been used to study women and work is one that draws on a theoretical work that has been what is often called The Debate with the Ghost of Marx.15

Another way of reading Power’s comments are to see them not as an attempt to discredit via politics but via irrelevancy. Dr. Armstrong, in response to further questioning about the word Marxism in the title of an article, asks Power again if he is making a political suggestion. Again she states that there is a distinction between using analytical tools and having a “politics.” Power responds: And what I’m suggesting to you is not political and it’s restricted very specifically, and I’ll repeat it for you, Dr. Armstrong, is: What relationship do those subject matters in those refereed journals have specifically to the question of child care expenses specifically in the context of the present case of Ms. Symes’s child care expenditures?16

Power seems to be asserting that Marxist analysis has nothing to do with the Symes case. Rather than suggesting that Armstrong is not believable because of her Marxist leanings (a strategy that strikes Amstrong as odd in a country with strong socialist policy), Power may be focusing on Marxism as a way of emphasizing the irrelevance of Dr. Armstrong’s evidence to issues of children and childcare. If so, Power is demonstrating an interesting lack of awareness concerning class and labour principles. In fact, one might say he “performs” an erasure of class through his characterization of it as irrelevant to the case. Response Two What’s in a Name? A Doctor by Any Other Name ... Feminists and nonfeminists have worked on the issue of naming and on how language can be used to undermine the authority of a speaker. At several points in the proceeding, Power refers to Dr. Armstrong as “Miss Armstrong.” Eberts responds to this devaluation in two different fashions. On the first occasion, Eberts challenges the use of the more diminutive

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term “Miss” by asking Power whether his intention is to challenge the credentials of the doctor: Just in passing, I don’t know if my friend intends to challenge the fact that Dr. Armstrong received a doctorate, but he was calling her Miss Armstrong. As he gave me no advance notice of his intention beyond his comments yesterday to challenge the expertise of this witness, I don’t know the extent and depth to which he intends to go. I intend to refer to the witness as “Dr.” Armstrong, however, and will establish in evidence that in her testimony that she did receive a doctorate.17

When Power again uses the term “Miss,” Eberts again objects, this time focusing the Court’s attention more directly on the devaluation implicit in Power’s fashion of addressing the witness: I’m sorry to spring to my feet again, but my friend seems to be pursuing – he now has done this twice – he calls this witness “Miss Armstrong”; he’s done it twice. We raised this at the outset, and he said he would call her “Dr. Armstrong” as is proper because he is not challenging the fact that she has a doctorate, and I would really respectfully submit that this sort of playfulness of his with her prefix is an attempt to – although he has not, there has been a ruling on her expertise – still, it’s an indirect attempt by my friend to diminish her expertise and, as such, it is improper.18

The trial judge Justice Cullen agrees and says he knows how Dr. Armstrong feels in this situation, referring to the time that he (Minister of Employment prior to being appointed to the Bench) was referred to as the Minister of Unemployment. Power provides his excuses, saying that Armstrong had not added “Dr.” when signing the affidavit and that he was using “Miss” as a sign of respect. Possibly, the second time, Power made a simple slip of the tongue rather than a calculated strategic attempt to subtly undermine the credibility of the expert. However, Eberts is clearly alert to the harm of such language usage. Whether Power is making a strategic decision or a slip, Eberts makes use of the moment by alerting the Court that such language tends to diminish credibility. Response Three Characterization and Irrelevance The government’s third response to the proposed sociological evidence is to argue that the evidence is irrelevant. Rather than finding its own expert to put a different spin on the sociological evidence, the Crown chooses to not call any experts. Instead, the Crown takes the position that

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the sociological evidence has no relevance to the issues. The government attempts to characterize the case so as to obviate the need for any expert at all. Questions about women and work, it argues, are not the legal questions involved in this case: the case is not about childcare burdens but about the meaning of business expense under the Income Tax Act. Dr. Armstrong should not be qualified as an expert witness because there is no role for her in the case. Justice Cullen disagrees. He states that the case does engage questions about the relationship of women and children to work, determining that Dr. Armstrong is qualified to speak as an expert. The Crown enters an omnibus objection to Dr. Armstrong’s evidence, claiming it is irrelevant to the issues before the Court and laying the foundation for a later appeal. Given its approach to characterization, it is not so important for the government to raise a serious challenge to Dr. Armstrong’s credentials. It will accept that she is an expert on women and work and simultaneously argue that her area of expertise has nothing to do with the case. The Crown’s cross-examination of Dr. Armstrong is thus rather cursory, to establish a record that will allow it to argue later that all the sociological evidence is beside the point. Thus, the Crown’s operative strategy is an attempt to alter the direction of the Court’s attention. While Dr. Armstrong’s evidence focuses on the social context of the case, the Crown seeks to narrow that focus to Symes as an individual. In this tactic, the Crown relies heavily on the dominant assumptions of liberal ideology and on powerful Western notions of individual freedom, choice, and responsibility, of equity, privilege, and desert. That the Crown has narrowed the scope of enquiry, to place attention on the choices made by Symes, becomes clearer in the light of the Crown’s response to evidence provided by her. SCENE 3 Symes Takes the Stand With Dr. Armstrong having provided a context for the relationship between women and work, Symes gives evidence. She attempts both to tie her concrete expenses to the business-expense provisions of the Income Tax Act and to do so in a manner that situates that experience against the context of the sociological foundation already laid, a foundation that demonstrates the disproportionate burden of childcare responsibilities placed on women in Canadian society. Symes testifies that she is solely responsible for childcare. Her evidence tends to establish that she is typical of the picture of the working mother presented by Dr. Armstrong: she is primarily (solely) responsible for childcare in her family and requires childcare in order to work. She also gives evidence that the absence of childcare would leave her unable to work. In

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her testimony, she says: “There was never a question that my husband would not continue in full-time work. It was never a question that if there was a choice as to which of us would have to remain at home after the children were born, it would be me.”19 Presumably to anticipate the argument that decisions about childcare are a matter of choice rather than obligation, she refers to both the Child and Family Services Act of Ontario, and the Criminal Code of Canada.20 These, she argues, impose upon her a legal obligation to ensure that her children are properly cared for. Ensuring that her children are cared for is not just a choice but a legal obligation. This evidence is presented in terms that relate to the Income Tax Act: evidence about the relationship of her expenses to her work, of the nondiscretionary nature of the expenses, of the reasonable amounts being claimed, of the need for her to choose the services of a nanny rather than make use of daycare facilities, and of the type of work the nanny did. The tasks performed by the nanny, Mrs. Simpson, she tells us, are solely related to the care of the children. Mrs. Simpson does no general housekeeping and no tasks that would lead one to conclude that her work was a “living expense” for Symes. Much of the evidence provided here is concrete: evidence that Symes made the actual childcare payments and that she made the contributions required of an employer to the Unemployment Insurance Fund and the Canadian Pension Fund. This evidence is necessary to meet the traditional requirements that business expenses be documented and be reasonable. On the question of “reasonableness,” Symes gives evidence concerning her decision to make use of the services of a nanny rather than the services of a traditional daycare facility. In this evidence, she attempts to lay a foundation like that in Olympia Floor and Wall Tile: that is, that the nature of her work demands these specific kinds of expenses. Traditional daycare facilities have fairly rigid hours of operation, requiring children to be picked up by a certain hour. The demands of Symes’s work makes it impossible for her to meet the requirements of these facilities. Her business requires her to be available at irregular hours not only for Court appearances, but also to be available to clients during extended hours. Indeed, her evidence is that, without the services of a nanny, she would be unable to work. Throughout the direct examination, Symes frames the problems using the language of the Income Tax Act. Her testimony is couched in the language of business needs, business expenses, and reasonable amounts. However, it also pulls in threads from Charter equality jurisprudence and from feminist scholarship on the relationship of women to work and childcare. Symes deploys the language of responsibility and obligation, of disproportionate burdens, and of links between her ability to work and the need to care for her children.

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SCENE 4 The Cross-Examination In his cross-examination of Symes, Power deploys discourses that rest on certain assumptions about the relationship between women, work, and motherhood. In doing so, he makes two specific moves. The first involves the notions of choice and obligation. Symes, he argues, is under no legal obligation to be primarily responsible for childcare – she simply chooses to do so. This choice, he claims, is a personal choice rather than a business choice. In the second move, Power characterizes Symes as a privileged woman who is already overly advantaged and who is undeserving of the benefit she seeks. Move One Choice and Obligation Symes uses the notion of legal obligation to buttress her claim that her childcare expenses are not personal expenses: because she is legally obliged to provide this care, her childcare expenses cannot be seen as the kind of discretionary personal expenses prohibited by s. 18(1)(h) of the Income Tax Act. Power also evokes the discourse of obligation and responsibility, but he links it with the discourse of choice. The result is quite different. Power uses the discourse of choice to counter the allegation that governmental action contributes to unequal burdens for women. The discourse of choice shifts the focus away from systemic social pressures, placing it on specific choices made by Symes and her spouse. Power begins firmly within the realm of obligation. However, his approach tends to de-centre the characterization of these obligations as specifically legal ones by arguing that they arise at least in part in the moral realm: Q. And you regarded the obligation being on you both as a moral and as a legal one to take care of your children? A. It is both a moral and a legal obligation.21

With respect to those responsibilities, whether legal or moral, Power argues that they are a joint burden on husbands and wives: Q. And I assume that you regard that moral and legal obligation as also being applicable to your husband during those years – or was it only on you? A. I’m sure that he has a moral and legal obligation as I do as well. Q. So there’s no one higher than the other? You’re not saying that? You’re not suggesting to the Court that one of you has a higher legal and moral obligation to take care of the children?22

In her response, Symes attempts to take attention off the formal equality

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of spousal obligation and focus it back on the substantive reality of her concrete circumstances, circumstances that, according to the expert sociologist, parallel the circumstances of other women. She responds to his questions about variable legal obligations as follows: No, but the burden of that joint legal obligation fell to me ... It was my responsibility to find the nanny; to secure the nanny; and to ensure that child care was there so I could go to work ... Technically it’s shared responsibility. The actual burden of it rests mainly with me.23

Again, Power returns to the question of legal obligation. This obligation, he argues, is a shared one. Symes responds that there is a difference between the legal prescription and the concrete reality: Q. My suggestion to you is that your husband had the same responsibility, and I suggest to you that it is a joint shared responsibility. Are you disagreeing with that? A. I’m saying that it is a joint responsibility of which I bore most of the burden.24

Power responds by deploying an equality-based argument. Both parents are equally obliged at law. Since the law mandates equal responsibility, the law has done all it can do. If Symes is carrying more of the burden, it is not because the law requires her to do so: Q. Are you saying under oath today that your husband would have refused or did refuse to pay any of those expenditures during the years under appeal? A. No, I’m saying that the burden of paying those – of ensuring that there was child care – fell to me, came out of my business income. Q. Who imposed that burden upon you? Did your husband say he would not share? Did you decide he would not share? Who imposed that burden upon you? The Minister of National Revenue? Who imposed that [...] is my simple question to you.25

The law, Power suggests, dictates that the childcare burden is to be equally shared between Symes and her husband. If Symes is carrying an excess portion of the burden of childcare, it can only be because she chooses to do so. Recalling that s. 18(1)(h) of the Income Tax Act disallows the deduction of personal or living expenses, Power attempts to characterize these childcare expenses as personal rather than business expenses. In the crossexamination, Power uses the vocabulary of personal choice and Symes resists:

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Q. And you assumed that as a personal choice that you would make those deductions from your salary – your income? A. No, it’s not a matter of personal choice. It’s a matter of family circumstances. The reality of how the family operates.26

Power’s strategy involves an attempt to tie Symes’s language of family circumstances with the language of personal choice: Q. Did you and you husband discuss at all about his sharing in the child care expenditures that were incurred during the years under appeal? A. I am sure that they were discussed and it was determined that they would come out of my business income. Q. Was that a joint determination between you and your husband or was that imposed from some external source? A. It was a family decision. Q. So, therefore, it was a personal family decision between you and your husband that your revenues would bear the child care expenditures? A. As a result of the dynamics of the family, yes. Q. Well, would you explain to me what you mean by “dynamics of the family”? A. In most families – Q. No, your family we’re talking about – not the dynamics of other families. Your family. A. The responsibility for certain household tasks – let me say this: the doing of certain household tasks falls on me as opposed to falling on my husband. Q. And my question comes right back to you, “Who decided that?” You and your husband, I suggest to you, together decided that. In your household, did anybody impose that decision on you and your husband except you and your husband? A. No one external did, no.27

Throughout the cross-examination, the language of choice and responsibility is mobilized by both sides. Using C. Wright Mill’s language, Power uses the language of choice in his attempt to characterize the problem of childcare as Symes’s own personal “trouble.” Symes uses the same language in an attempt to characterize childcare as an unequal responsibility “issue.” Move Two Equality and the “Privileged White Woman” The notion of equal obligation emerges in Power’s questions about choice and responsibility. Debates about “equality” arise directly in a set of questions that focus on Symes and on her character. In these interactions, Power suggests that

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Symes has not established that she is the victim of discrimination. Three threads emerge: one focuses on Symes’s access to the income of her husband, the second on her character as a privileged exploiter of other women’s labour, and the third on white-race privilege. Weaving all three threads together, Power paints the portrait of a privileged white woman – not the victim of discrimination or disadvantage. First, Power argues that Symes cannot be disadvantaged given the amount of money generated within her family. She has access to resources beyond her own income-earning power: Q. Does it follow from that ... that your husband could have been making enough income at least to support you if you had stayed at home? A. My husband makes enough income to have supported me and a child or two children, yes. He would earn above the poverty line.28

This line of questioning seems designed to counter the argument that Symes needed to work in order to contribute to the family income. After all, her husband is making enough to support her and the children. In this line of questioning, one can hear echoes of traditional conservative patriarchal presumptions about the roles of husbands and wives. A husband’s role is to be the primary income earner. A wife’s income, though desirable, is not essential: she works for “pin money.” These patriarchal presumptions resonate in Power’s argument that Symes is not disadvantaged. On the contrary, she is a woman with a number of choices open to her. She is free to work but work is not necessary given her husband’s incomeearning power. She is not disadvantaged. Second, Power focuses on the economic details of Symes’s daycare arrangements with Mrs. Simpson. Again, he does so as a way of emphasizing Symes’s relative privilege: Q. So I can assume correctly that generally we’re in the minimum wage area as to the wages that were paid by you to the nanny, Mrs. Simpson? A. Yes, the minimum wage under the laws of Ontario, yes ... Q. And at no time did you regard that minimum wage, I assume – I’m talking to you personally – as being nonsufficient for the services that she was rendering to you as child care expenses? A. Yes, they are insufficient. Yes, they are underpaid. Q. Why didn’t you pay her more? A. Why didn’t I pay her more? A. Yes. You regarded them as insufficient. A. Child care, I think, is undervalued and I would have been pleased to

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Q. A. Q. A. Q. A. Q. A.

Q. A.

have paid more and perhaps if I were more generous I would have paid more. My question was very simple. You paid her approximately the minimum wage? Yes. And I have asked you a simple question – did you regard that as sufficient for the services she was rendering? No. Fairly, no. Therefore, why did you not pay her more? I paid her based upon ability to pay in large part. Did you pay what the market going rate was? Depending upon what the market is. That varies. In other words, the wage was sufficient – on pure market principles, the wage was sufficient that she stayed with me and she didn’t seek alternative employment ... it probably reflects the market for child care in the City of Toronto – the wage I paid ... And that is all you paid – that minimum wage? Yes, just slightly above the minimum wage.29

According to Power, not only is Symes a privileged woman who does not need to work, she is also a privileged exploiter of other woman’s labour, paying less for childcare than the work is worth.30 In her responses, Symes makes it clear that she understands the dilemma. Childcare labour is generally a devalued form of work, whether provided by a mother or a paid childcare giver. This means that, as an employer, Symes is able to take advantage of this devaluation in order to procure childcare services she can afford. The third thread in Power’s challenge to Symes’s claims of discrimination evokes important questions of race privilege. Power goes on a “fishing expedition,” looking for evidence that Symes has employed a foreign domestic: Q. Now, during those years from 1982 to at least 1987 while Mrs. Simpson was your nanny, at no time – she was a Canadian citizen – Canadian resident – she was not what we call “a foreign domestic”? A. Mrs. Simpson was born in Canada. She is a Canadian. Q. To your knowledge since you have engaged her to perform these nanny services, you have no information whether she was here in Canada on an immigration or employment authorization certificate of any sort? A. Yes, I have the information that she was here; she was a Canadian; and she has the same right as I have to negotiate.

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Q. She didn’t then need any employment authorization or anything of that nature? A. No. Q. And at any time did you hire what we would call a non-Canadian domestic to perform nanny services during the years 1982 to the present? A. No.31

This fishing expedition does not turn up the evidence that Power is hoping for, evidence of a “non-Canadian domestic.” Such evidence would be valuable to Power since the childcare deduction in s. 63 of the Income Tax Act includes a number of limitations based on immigrant status. In particular, the person seeking to claim the deduction must provide the social insurance number of the person doing the childcare work. Power’s motivation may be to find out whether Symes had violated this rule. However, the cross-examination has further effects. Significantly, it enables racialized discourses to be evoked indirectly. In the previous exchange, Power never mentions colour. He uses terms like “foreign domestic” and “non-Canadian domestic.” Ostensibly, the only issue is citizenship status. However, talk of “immigration” is also talk of “race” and so Power’s questions are deeply coded with assumptions about colour.32 While there is nothing to suggest that Power is concerned with the serious problems facing immigrant domestic workers in Canada, his questioning resonates with those who are so concerned.33 His questions hint that Symes, as a privileged (white) woman, is benefiting from the exploitation of women suffering the doubly disadvantaging effects of gender and race/immigrant status. Indeed, Power’s cross-examination seems to foreshadow the controversy that would shortly arise in the US over the failed appointment of Zoe Baird as Attorney General for having hired Lillian Cardero – “an illegal alien” – as a childcare worker.34 Important questions about racial and immigrant disadvantage in domestic service are not directly engaged in this case since Mrs. Simpson, Symes’s nanny, is both white and a Canadian citizen. Nonetheless, the case does directly raise issues of class privilege. Indeed, the previous cross-examination reveals these tensions and arguments, suggesting that economically advantaged women like Symes are maintaining a servant class. Such women, Power suggests, are less than deserving subjects for public concern. The discourse of equality is evoked by both sides but in quite radically different ways. Symes focuses on the indicia of discrimination and disadvantage while Power turns attention to establish privilege and advantage. Symes seeks a remedy for a breach of equality rights while Power characterizes her as a privileged woman undeserving of remedy rooted in equality.

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SCENE 5 Making the Legal Arguments Against the backdrop of the various ideologies, texts, and themes emerging from the evidence, the parties make their “legal” arguments. In light of the concrete factual record and the prior case law, we are led to wonder how the Court will interpret the childcare provisions of the Income Tax Act. We remember that a challenger will have to meet three main assertions: first, that childcare expenses are personal expenses, not business expenses and thus cannot be deducted from revenues; second, that courts must defer to legislative will, and that childcare expenses can thus be deducted only pursuant to s. 63; and finally, that any limitation on the tax deductibility of childcare expenses is not discriminatory since either parent can claim the deductions.35 The first claim, that childcare expenses are personal expenses, requires Symes to fight established precedent: childcare has historically been constructed as a personal issue. As part of the strategy to defeat this claim, Symes brings a deconstructive argument to bear on the notion of “business expenses.” Using Dr. Armstrong’s evidence in conjunction with other material, Symes seeks to establish that gender exclusion and bias shape the Court’s approach to business. Business, she argues, has traditionally been done by men. Men’s ways of doing business have shaped what people understand to be legitimate business expenses. That is, the very notion of business expense reflects the male experience. Using Dr. Armstrong’s assertions about the changing work environment and the large influx of women into the once predominately male world of business, Symes argues that businesswomen have additional business concerns and in fact may do business differently than men. This reality should not mean that women’s business expenses should be discounted. Rather, the meaning of “business expense” should be broadened to include the legitimate expenses of all businesspersons. In response, the Crown raises the arguments used in other countries. First, it argues that the business-expense provision of the Income Tax Act should not be stretched to the point of meaninglessness simply to include childcare expenses. Such expenses have nothing to do with business but are simply personal. Here Power relies on comments from Symes about the “family decision” that she be responsible for children as evidence of the personal nature of the expense. Business is a neutral concept, the interpretation of which should not be shaped by the personal needs of those doing business. Surprisingly, the second of the three assertions explored in Chapter 3 (that the s. 63 is a complete code for childcare) is not raised at the trial level. Indeed, in response to a query by the trial judge, Power states that the government concedes the s. 63 issue: the government agrees with

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.

Symes that if childcare expenses can properly be characterized as business expenses, then nothing in s. 63 limits their full deductibility. Both sides agree that Olympia is dispositive of the issue. The government’s third claim is that there is no equality breach where the deduction is available to both women and men. This assertion is significant for Symes, who has the burden of establishing that an interpretation of business expenses precluding deductibility of her childcare expenses violates the equality provisions of the Charter. Symes makes two arguments. The first examines the differential treatment of parent/ employers and other employers. An interpretation disallowing the deduction of childcare business expenses, she asserts, draws an invidious distinction between the parent/employer and other employers. Employers, she points out, are permitted to deduct from business revenues the wages paid to employees as well as the employer share of Unemployment Insurance (UI) and Canada Pension Plan contributions (CPP). Parent/employers also pay wages to employees, provide T-4 forms, and make remittances of the employee and employer portion of UI and CPP. However, unlike other employers, parent/employers are required to make these payments from income rather than from revenues. This difference in treatment constitutes a denial of equal benefit of the law. Her second equality argument is rooted in gender inequality: the disallowance as a business expense of the childcare expenses incurred to permit a parent to earn income from business has a disproportionate impact on women, who in fact remain primarily responsible for childcare. This disproportionate impact constitutes a denial of equal benefit of the law on the basis of sex. Symes relies on the evidence of Dr. Armstrong and on the Court’s own jurisprudence on adverse-impact discrimination. Again, the government responds by narrowing the issues. Therefore, the primary question is whether or not childcare is a business expense in terms of income determination. If any distinctions are being drawn, it asserts, they are not the kinds of distinctions prohibited under s. 15 of the Charter. That is, the text of the Income Tax Act is facially neutral and does not draw explicit distinctions based on personal characteristics like sex, race, or religion. Any distinctions are based on economic commercial practices and these practices are neutral, applying equally to all expenses. No breach of equality rights has been shown. Further, the government maintains, even if distinctions are being drawn, s. 63 is designed by Parliament to provide childcare deductions subject to statutory conditions. Such an action, it argues, is a proper exercise of legislative function in the social-economic field and the courts should defer to that choice. Section 63, far from being discriminatory, provides a benefit to all people with childcare needs.

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If Symes can show that the legislation is discriminatory then the government has the burden of establishing that the limitation of her equality rights is demonstrably justified under s. 1 of the Charter. The government must establish first that it has a pressing and substantial legislative objective, and second, that the limitation is proportional to the objective (that it is rationally connected to the objective, minimally impairing of the right in question, and that the deleterious effects do not outweigh the salutary ones). In order to save its legislation in the event that a narrow definition of business expense is found to violate the equality guarantee in the Charter, what does the government provide by way of justification under section 1 of the Charter? The Crown argues that the denial of the deduction is justified when viewed in the context of Parliament’s total fiscal responsibilities, its actions done to date, and the amounts it expends on childcare in general. The government refers to its White Papers on taxation and to the Royal Commission on Taxation. It also relies on comments made by various members of Parliament about the childcare deduction and provides evidence of amounts actually expended on programs concerning child welfare in general. This is far from the kind of material one traditionally expects in support of a s. 1 justification. At best, it only explains how the government came to presume that childcare would not be deductible. It does not reveal the existence of a pressing objective, much less any evidence that the government has turned its attention to questions of minimal impairment or deleterious effects of its legislation. At this point, one is left wondering how the tension between the competing individual and sociological explanations will be resolved. How will the arguments, discourses, threads, and currents in the case be sorted and filtered by the Federal Trial Court, the early academic commentators, and the Federal Court of Appeal? ACT II Filtering the Arguments The Early Judgments: The Rising Action SCENE 1 Federal Court, Trial Division36 Justice Cullen begins by determining that the central issue is the characterization of the childcare expenses. Are these expenses consistent with ordinary principles of commercial trading or well-accepted principles of business practice? In the language of s. 18(1)(a) of the Act, are the expenses incurred “for the purpose of gaining or producing income from the business”? Referring to the extensive judicial consideration on this question, he finds that the case law illustrates an increasing tendency

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to interpret s. 18(1)(a) more liberally, supporting Symes’s position. After reviewing many cases, he rejects the Crown’s approach, an approach suggesting the concept of a business or revenue-producing circle, a circle with a fixed content of meaning. Parliament, he comments, in its decision not to provide a fixed definition for the word “profit,” has determined that “judicial interpretation shall infuse the term with meaning, which will reflect the realities of the times.”37 Justice Cullen acknowledges the existence of the cluster of cases raised by the Crown in support of the proposition that childcare expenses are not business expenses. Here, Justice Cullen agrees with Symes that the roots of these cases are to be found in Bowers v. Harding, adding: The Bowers case arose at a time when there were very rigid restrictions on women and very fixed ideas about what was proper for women and what was the position of men, in terms of employment and income. The case came from another age, from another system dealing with a tax question that related to employment rather than profits from a business. Moreover, the case is full of illustrations of the subordinate position of women in that society and that law.38

Pointing to Dr. Armstrong’s evidence of significant social changes in the 1970s and 1980s, Justice Cullen concludes that earlier cases on childcare expenses have been overcome by a changed social reality. Thus, he does not consider himself bound by those cases. Looking at the case before him, and at Symes’s evidence about her business needs, Justice Cullen finds that the nanny expense has been made for the purpose of producing income: “There is a causal relationship between the dedication of resources generated in her practice to child care and the generation of these resources.”39 Her expenses fall within the scope of s. 18(1)(a). Justice Cullen then asks whether the expenses are nonetheless precluded by s. 18(1)(h). Are they personal or living expenses? First, he asserts that it is important to draw a distinction between childcare “which allows one to participate in the economy and generate income” (falling under s. 18(1)(a) of the Act), and childcare “which allows one to go out on social occasions or the hiring of a maid to ease one’s life.”40 Second, he points to the legal obligation imposed on Symes to care for her children. In his view, this legal obligation “distinguishes the provision of child care from other kinds of expenses that have been or could be characterized as personal living expenses.” Her expenses, therefore, are proper business expenses under sections 3, 9, and 18 of the ITA. Justice Cullen is satisfied that Symes has exercised good business judgment in deciding to dedicate resources to the provision of childcare and that the amounts paid are not unreasonable.

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Does the presence of s. 63 have any impact on the deductibility of these expenses? Justice Cullen finds it does not, referring to the Crown’s concession: “I would like to note at this point in my reasons that the defendant has admitted that if the nanny expense is a proper business expense pursuant to sections 3, 9 and 18 of the Act, then section 63 cannot prevent it from being allowed as such.”41 But even had there been no concession, he concludes that s. 63 was enacted not to limit the deductibility of business expenses but “to facilitate the entry of women into the labour force,” thereby promoting “economic equality between men and women, and providing relief for low income families.”42 In short, nothing in the Act prevents an interpretation allowing the deduction of childcare expenses as a business expense. Justice Cullen adds that even if he had come to a different conclusion on the question of interpretation, he would have found the interpretation advanced by the Minister of National Revenue to be inconsistent with the guarantee of equality under s. 15(1) of the Charter. Here, Justice Cullen uses the Charter in two different ways: as an interpretive aid and as a standard against which to scrutinize legislation for constitutional conformity. First, Justice Cullen uses s. 15 of the Charter as an aid in interpreting the Income Tax Act, stating that the Act must be interpreted in a way that recognizes the specific experience of women as principally responsible for childcare. An interpretation of the Act that ignores that fact or that the costs of childcare are a major barrier to women’s participation, runs contrary to the guarantee of equality in s. 15 of the Charter. He rejects the Crown’s contention that he is “reading in” a provision of the Act to bring it into conformity with the Charter or amending the definition of “profit.” Rather, he asserts that he is merely providing an interpretation of the word “profit” that conforms with the demands of the Charter. Justice Cullen also uses the Charter in the more traditional manner: as a standard against which to measure governmental action. Symes, he concludes, has demonstrated both unequal treatment before the law and the discriminatory impact of this treatment. The government refusal to allow the deduction shows the government to be treating Symes “differently from other taxpayers with expenses that are considered necessary to generate business income.”43 The government, he stated, is not treating Symes like a serious businessperson with a genuine expense incurred for a legitimate purpose. Instead, the government is treating her “like some frivolous person hiring a maid or going for a manicure.”44 He finds that such treatment violates the Charter’s equality guarantee. He concludes that this differential treatment has left Symes paying more tax than she is obliged to pay. Though she is an employer incurring a business expense, she has been prevented from deducting that expense. This, in effect, requires her to pay more in taxes. Justice Cullen concludes

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that such treatment is contrary to the purpose of s. 15 of the Charter – to promote a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration. Symes, he determines, has made out a prima facie case that her s. 15 equality rights have been violated by the government’s interpretation of the Income Tax Act. The effect of this interpretation is, based on Symes’s personal characteristics both as a parent and a woman, to impose upon her burdens, obligations, and disadvantages not imposed on others. Justice Cullen turns next to the Crown’s argument that, in enacting s. 63, Parliament has properly exercised its legislative function in the socialeconomic field, creating a deduction to assist both men and women with childcare needs. Justice Cullen replies by noting Dr. Armstrong’s evidence that the present system fails to deliver on its childcare promise. The cost of childcare, he comments, constitutes a barrier to women’s access to the economy. The Crown’s approach – an approach blind to this reality and to the reality of women’s major responsibility for providing this care – violates s. 15 of the Charter: “The Act cannot be interpreted as if parents mostly female) are the same as other workers, or entrepreneurs (i.e., without child care responsibilities); it must be interpreted in a way which recognizes their specific experience as principally responsible for child care.”45 Lastly, he turns to s. 1 of the Charter: Is the limitation on Symes’s right to equality reasonably justified in a free and democratic society? He begins by noting that “the onus of justifying the infringement is on the party seeking to uphold the provision.” His review of the evidence shows that the Crown has offered no pressing and substantial objective to justify denying Symes’s nanny costs as a business expense. Indeed, he finds no evidence that Parliament has ever made a legislative choice against full deductibility of nanny expenses. Rather, the lack of definition of “profit” in the Act supports the view that “the courts are left to decide, in accordance with the Charter, whether the concepts of profit and business expenses permit such a deduction.”46 He does not conclude that nanny expenses will be treated as business expenses in all situations, nor does he invalidate s. 63 of the Act. He finds simply that the concepts of profit and business expense permit the deduction of the nanny’s salary in this case. SCENE 2 Early Commentary on the Case The decision of Justice Cullen generates comment in both the popular press and the legal academic community. Some of these commentaries will be specifically referred to by the Court of Appeal and, since the arguments made by the commentators are selectively taken up by the Court, are considered here. In each of these commentaries, the authors articulate some of the difficult questions that

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are circulating around the case, including questions of gender disadvantage and class privilege. Joe Hershfield argues that the Symes judgment, though well thought out, is nothing more than an interesting anomaly, “a misguided judgment looking to apply modern social attitudes to achieve economic parity in a tax system which has historically defined the issues in question so as to preclude the taxpayer’s success.”47 For him, the issue is not whether the expenses are personal but whether they are expenses of the trader or the trade. Referring to the Charter issues, he suggests the case is overly complex and shows the limited scope for tax-deduction theory to expand its boundaries to eliminate the many inequities in the tax system. Alan Dickson emphasizes that the interpretation given to s. 18(1)(a) of the Income Tax Act by Justice Cullen is without precedent but correctly identifies a liberalizing trend in the interpretation of business expenses. Dickson believes that the resolution of the case depends on broad political questions rather than narrowly legal ones. The question of whether or not Justice Cullen is “correct” in his interpretation must “ultimately depend on a value judgment rather than legal analysis.”48 Kathleen Hanley sees a similar set of political problems and raises a string of questions about some of the troubling intersectional problems present in the case, questions about choice, obligation, and equality: Should a nanny’s salary be considered a personal or living expense on the ground that one makes a “personal choice” to have children? ... Why is the existence of a legal obligation to care for one’s children important in determining that a nanny’s salary is not a personal or living expense? ... Does it make sense that a female employee cannot deduct a nanny’s salary, whereas a woman who owns a business can? ... Can a person now pay his or her spouse to look after their children and deduct the expense?49

Faye Woodman, a professor of tax law, suggests that feminists should not be too quick to assess the case as a success.50 She focuses first on the doctrinal legal arguments, finding some to be less than compelling. In particular, she argues that Justice Cullen too easily dismisses the s. 63 issue.51 The courts, she says, should spend more time considering the relationship between the various tax provisions. However, these legal questions are not the centre of her focus. “The most obvious question arising out of the Symes case itself,” she asserts, “is whether the different treatment in the Act between employees and the self-employed violates the equality provisions of the Charter.”52 Worrying that deductions for the wealthy could tend to increase vertical inequities in the Act between the

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self-employed and wage earners, she asks if the new distinction might not be particularly invidious since three-quarters of the self-employed are male. She also expresses concern about the boundaries of judicial review of taxation statutes and the (in)ability of judges to engage in the complex kind of analysis necessary to deal with these statutes. Judges are, she argues, “venturing into difficult and unmapped territory.”53 SCENE 3 The Federal Court of Appeal54 Justice Décary, writing for the unanimous Federal Court of Appeal, reverses the decision of Justice Cullen, resolving the case in favour of the government. In the judgment we see Justice Décary (like Justice Cullen in the earlier judgment) sift and choose from the discourses, arguments, and vocabularies mobilized around the case. Justice Décary begins with “obligation.” The existence of a legal obligation to care for one’s children is, he says, no reason for treating childcare expenses as a business expense. Indeed, in his discussion, the category of obligation shifts yet again – from legal, to moral, to natural: “The legal obligation in the case at bar – which I stress is imposed equally on both spouses and is in any case a natural obligation – is imposed on the parents as parents, and follows them wherever they may be, whether they are absent on business, pleasure or for any other reason.”55 Here, the very notion of “obligation” itself shifts across categories: imposed by society or by ethics, imposed by Nature herself. The emergence of natural obligation here is interesting in part because it emerges not from the evidence but from the ideological context in which the entire case is situated. Indeed, the notion of such a natural obligation has deep roots, appearing in both The Institutes of Justinian and Gratian’s Treatise on Laws.56 Further, the notion of natural obligations to care for children was mobilized during the movements for suffrage in the early part of the twentieth century. These natural obligations lead to women’s higher moral character and the need for their civilizing influence. Justice Décary does add that this natural obligation affects both parents equally. In doing so, he marks an earlier and very gendered notion of natural obligation with the gender-neutral equality theory of modern times, a theory that speaks against targeting only mothers as the natural caregivers of children. Of course, Justice Décary’s assertion that the obligation is both natural and equally shared runs directly contrary to the evidence presented in the case. Though the law does impose obligations “jointly” on parents, the evidence was quite clear that the burdens of this obligation are not shared equally by both sexes. The evidence also supports the view that the obligation to care for children, far from being “natural,” is very much a socially

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constructed one, enforced through a number of interwoven social, legal, religious, and structural rewards and penalties. Justice Décary is silent about this evidence. In this instance, judicial response to the intervention of experts is ambiguous at best. This is not to say that Justice Décary rejects the sociological evidence concerning “new realities.” Indeed, he agrees with Justice Cullen that judicial interpretation should be sufficiently flexible and sensitive to adapt to changing circumstances. However, he is of the view that the circumstances relating to business expenses have not changed. Childcare needs, he argues, are completely independent of business. In his words: “The concept of a business expense has been developed exclusively in relation to the commercial needs of those in charge of the business, and I have difficulty in seeing how a change in the particular needs of these persons could justify modifying an interpretation which has nothing to do with these needs.”57 Justice Décary articulates the view that “business need” is an unbiased and objective category, an ungendered category. Clearly, the expert evidence of Dr. Armstrong does not influence the perceptions of the Court of Appeal. Far from seeing childcare as related to business, Justice Décary concludes that childcare is a “particular need.” He does not go so far as to say explicitly that this particular need is a “personal” need under s. 18(1)(h) of the Income Tax Act. Rather, he decides that it is unnecessary to draw any conclusion on this point because s. 63 is dispositive. Justice Décary is not troubled by the Crown’s earlier concession that s. 63 could not prevent the deductibility of legitimate business expenses. As he puts it, a concession on a point of law “certainly cannot bind the Court.”58 In any event, the Crown withdraws the concession on appeal. In reexamining s. 63, Justice Décary refers to a passage from Woodman’s comment on the case, a passage in which she said: “Surely the existence of section 63 is very important, if not determinative, in the interpretation of sections 9 and 18.”59 He returns to the wording of s. 63(3)(a)(i) that, he states, authorizes the deduction of child care expenses “to enable the taxpayer, or the supporting person of the child for the year, who resided with the child at the time the expense was incurred, (a) to perform the duties of an office or employment, (b) to carry on a business either alone or as a partner actively engaged in the business.”60

By adopting this wording in 1972, he concludes, Parliament has expressly covered self-employed parents as well as salaried parents. Government’s policy objectives, he concludes, led it to craft s. 63, a complete legislative response to the matter of childcare: “Section 63 is really a code in itself, complete and independent.”61 It is interesting to note that both Justices

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Décary and Cullen base their decisions in part on the policy objectives behind s. 63. Of course, as Arnold notes, these objectives can be characterized in ways that support quite different interpretations.62 Justice Cullen found that s. 63 was designed not to limit the deductibility of business expenses but to promote economic equality between men and women. Justice Décary identifies a quite different policy objective: providing parental childcare expenses. Justice Décary concludes that Symes’s childcare expense is not a business expense under s. 18(1)(a) but a parental expense under s. 63. Justice Décary comments that s. 63 of the Act has been amended many times, in accordance with the social and economic changes identified by Dr. Armstrong. Section 63, he states, is part of the liberalization designed to accommodate these changes. Though Symes may prefer “for obvious monetary reasons” to see the liberalization take the form of a businessexpense deduction, Parliament has determined that childcare deductions will occur exclusively within s. 63. Justice Décary determines that Parliament indeed adapted the Income Tax Act to contemporary reality “when it established a system favouring salaried mothers and self-employed mothers.”63 In this language, we see the Court accepting Power’s earlier attempts to characterize s. 63 as favouring rather than harming women. And what of the Charter? Does this interpretation violate the guarantee of equality? It was never intended, Justice Décary says, that “legislation should be minutely examined to determine whether, by an extreme interpretation, it might not be possible to implicate the Charter directly or indirectly.”64 By using the vocabulary of “extreme interpretation” and “minute examination,” Justice Décary implies that Symes’s equality argument is extreme. Much economic and social policy making is simply beyond the institutional competence of the courts, and he argues that Symes’s approach “risks trivializing the Charter.”65 To accept her arguments would be to overshoot the purposes of the Charter. Symes, he tells us, is suggesting that legislatures are under some kind of Charter obligation to remedy social and economic inequality. He disagrees: “The Charter imposes on legislatures no obligation to redress all social and economic inequalities.”66 Here, the language of obligation intersects with the language of inequality, as Justice Décary suggests differences among various types of inequality. Governmental obligation does not arise in the face of mere social or economic inequalities. It is only legal inequality that a government is obliged to address. Justice Décary finds that s. 63 was designed by the government to alleviate certain social and economic inequalities. The Charter allows governments to adopt laws, programs, and activities that seek to improve the condition of disadvantaged individuals or groups. Section 63, in his view, is just such a law. However, he adds, no one could have required Parliament

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to adopt this ameliorative section: “Parliament adopted section 63 in the enlightened exercise of its discretion.”67 Justice Décary characterizes s. 63 as a benefit rather than as itself a source of inequality: “I do not see on what basis a particular group of professional women or parents, benefiting from the deduction allowed by that section, could require that the section be amended by the legislature or interpreted by the Courts so as to give the group the right to take a further deduction ... I do not see how a provision which favours all women could directly or indirectly infringe the right of women to equality.”68 In a series of comments, the language of privilege and ingratitude evoked at trial bubbles to the surface. He says: “The respondent, who is in some measure claiming privileged treatment for professional women and parents, does not argue that the Income Tax Act would create unlawful discrimination between professional and salaried taxpayers if her argument was allowed.”69 Symes has not complained, he also points out, about the fact that s. 63 “favours women more than men.” Again using language like “privileged treatment” and “favours women,” Justice Décary identifies s. 63 as a benefit rather than a burden, even though the evidence shows that more women than men claim the s. 63 deduction since they still find themselves to be the “lower-earning supporting parent.” To see s. 63 as an unequivocal benefit, one first has to accept that childcare expenses are not already business expenses; however, his characterization of s. 63 as a complete response to childcare glosses over this issue. Furthermore, Justice Décary’s phrase “unlawful discrimination” also glosses over the reality that tax-based distinctions between professional and salaried taxpayers had not been found to violate s. 15 of the Charter. In any event, he characterizes Symes as a privileged and favoured person, one who refuses to acknowledge her privilege, and in fact seeks to unfairly extend her privileges. And he does not see any discrimination in the evidence before him: “I am not prepared to concede that professional women make up a disadvantaged group against whom a form of discrimination recognized by s. 15 has been perpetrated by the adopting of s. 63.”70 Justice Décary adds that, even if there is discrimination within the meaning of s. 15 of the Charter, it can be justified under s. 1 of the Charter. This is interesting since the government did not make a full argument under s. 1. Is Justice Décary saying that no argument is required because the justification is so obvious, or is he saying that the Court should defer to the legislature even in the absence of evidence? Certainly, he does not see it as the Court’s function to substitute its own choice of tax regime for the regime chosen by Parliament. In the trial and appeal judgments, we see quite different ways of sorting and filtering the discourses and arguments. Justice Cullen focuses on a changed social

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reality, disproportionate gendered childcare burdens, and a government failure to justify legislative choices. He sees the wounds of gender disadvantage. Justice Décary emphasizes gender neutrality and deference to legislative decision making. He sees the power of class privilege. ACT III Heading Towards the Final Judgment Crisis and Turning Point The Federal Court of Appeal’s judgment, like the trial judgment before it, sparks public discussion and academic comment. Many of the themes and concerns swirling through these debates are picked up and extended by the three groups granted intervener status by the Supreme Court of Canada. The Canadian Bar Association (CBA) and the Charter Committee on Poverty Issues (CCPI) intervene in support of Symes; the Attorney General of Quebec intervenes in support of the Attorney General of Canada. Each of these interveners focuses attention on different equality dimensions of the case. The CBA focuses on gender, parenthood, and work; the CCPI on poverty and judicial deference; the A. G. Quebec on formal equality and evidence. SCENE 1 Gender, Parenthood, and Work The intervention of the CBA is not without controversy. Some suggest that the intervention is self-serving, that the CBA’s goal is nothing more than to increase tax breaks for its already advantaged members.71 There are other competing explanations for the CBA intervention. One of these is the insistent pressure being exerted on the CBA to demonstrate its commitment to gender equality. Indeed, throughout the 1980s gender issues were repeatedly raised by women in the legal profession. In the early 1990s, the CBA established the Task Force on Gender Issues Within the Legal Profession. Headed by former Supreme Court Justice Bertha Wilson, the task force was to examine longstanding allegations of gender bias in the profession. As part of this effort, law societies across Canada began surveying their own members and collecting and sharing material concerning the work experiences of male and female lawyers. The CBA was thus developing a body of evidence documenting complex systemic and structural gender bias in the world of law. This body of evidence forms the core of much of its legal argument in the Symes case. The CBA factum focuses primarily on the interpretation of the businessexpense deduction in the Income Tax Act. It emphasizes the history of women’s exclusion from the world of business and the continuing gender biases that are still manifest in the workforce. The CBA places before the Court the results of its own surveys and studies of bias in the legal profession.72 According to this information – information that supports and

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supplements the evidence provided by both Dr. Armstrong and Symes – the presence of children has a very different impact on the careers and prospects of male and female lawyers. They document a connection between childcare responsibilities and a woman’s ability to negotiate her working life in the legal profession. The evidence focuses on the dilemmas facing women in the legal profession, one subgroup of the category “the self-employed.” The CBA material documents how primary responsibility for children has an adverse impact on the ability of a lawyer to work and how such responsibility continues to fall most heavily upon women. The CBA does not argue that business-expense deductions for childcare should be available exclusively to women. Its argument is that childcare expenses can be properly characterized as business expenses in certain circumstances. By implication, the deduction could be available to any businessperson, male or female, whose childcare expenses fit within the definition. It adds, however, that given the current structuring of responsibility for childcare, women will more often be primarily responsible and thus more often be able to legitimately make the claim that their childcare expenses are business expenses for the purposes of the Act. The CBA argues that an interpretation of the Act that fails to recognize the connection between childcare and business works against women by erasing the fact that business realities for women may differ from men. In its view, the Act should be interpreted in accordance with the constitutional right to equality. Any other interpretation constitutes a violation of s. 15 of the Charter. In its factum, the CBA notes that the discriminatory impact of a narrow interpretation can be grounded not only in the enumerated category of “gender” but also in the analogous category of “parental status.” That is, in characterizing childcare expenses as personal, the Act discriminates against those who are parents and have different ways of doing business. Thus, the CBA suggests two ways of characterizing the discrimination in this case. First, one can say that discrimination is suffered by parents responsible for childcare, many of whom are women. Alternatively, one can say that discrimination is suffered by women, many of whom have childcare responsibilities. SCENE 2 Poverty and Judicial Deference The CCPI is a national coalition of low-income activists and equality advocates who volunteer their time and energy to the protection of the rights and interests of individuals living in poverty. One might have suspected that the CCPI would intervene against Symes rather than in support of her position. However, it does not. The CCPI addresses the issue of economic privilege head on. While Symes does not represent one of the more than

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half-million women living in poverty in Canada, her case raises childcare responsibility as an equality issue. This issue, it notes, is one of great importance to the most disadvantaged women in Canada. The CCPI further justifies its intervention because of the kinds of arguments used against Symes by Justice Décary at the Court of Appeal. These arguments, the CCPI argues, threaten to foreclose the possibility of future povertybased Charter challenges. It expresses three concerns with comments by the Court of Appeal concerning the applicability of the Charter to the social and economic spheres, arguing that, if affirmed by the Supreme Court, the decision will deprive the poor of the equal benefit and protection of the Charter. First, it expressly rejects Justice Décary’s argument that to interpret legislation in accordance with the Charter is to overshoot its purpose or trivialize it. On the contrary, it argues, social and economic legislation must be interpreted in a fashion consistent with the Charter. The goal is to interpret legislation so as to ameliorate rather than perpetuate disadvantage. Second, it disagrees with Justice Décary that courts should defer to Parliament in the social and economic spheres. The CCPI notes the argument that the judiciary should defer because it does not have the democratic legitimacy to “meddle” in social and economic policy. However, it argues that judicial intervention is necessary to protect the interests of those who are disenfranchised by the democratic process as constituted. It suggests that while legislatures may be “representative” institutions in the sense that they are popularly elected, they may not be representative in other important ways. In particular, they often fail to represent the poor. Though the Charter guarantees the rights to vote and run for office, the poor are not always able to exercise these rights, and are often effectively denied involvement. As the CCPI states in its factum: Those who are homeless or who are unable to read and write are often unable to vote. Financing required to run in an election precludes a poor person being a candidate. The Constitution Act itself bars poor people from the office of senator by means of property qualification. Poor people’s relationship to democratic institutions is still, essentially, that of petitioners from the outside rather than full participants within.73

Social and economic inequities, it argues, result from a democratic politics increasingly dominated by the interests of a relatively affluent majority. The equality guarantee in the Charter mandates a role for the judiciary in safeguarding the interests of disadvantaged minorities in this area. Third, it argues that Justice Décary is wrong to conclude that the Charter does not impose positive obligations on governments to promote equality for disadvantaged groups. On the contrary, particularly where the

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democratic process is not well suited to safeguard the rights of such groups, the Charter imposes exactly such obligations. However, since the Symes case can be resolved through statutory interpretation alone, the CCPI points out that it is not necessary for the Court to determine what positive steps might be required by s. 15 to alleviate the disadvantage of women and parents within the tax system. The simpler solution is found by remaining focused on the question of business expenses. The Court of Appeal, say the CCPI, wrongly decided the case on the basis of s. 63. The issue in this case is the statutory interpretation of the business-expense provisions. It urges the Court to adopt Symes’s interpretation, finding it to be the interpretation most in conformity with Charter values. SCENE 3 Formal Equality and Missing Evidence In any constitutional challenge to government legislation, each of the provincial and federal attorneys general is entitled to intervene as of right. In this case, only Quebec chooses to do so. This choice makes good business sense because Quebec has its own personal tax system and therefore has a great interest in the outcome of the case – success for Symes could have a major impact on the provincial tax code. Quebec disagrees with the “business expense” focus being taken by the other two interveners, taking instead an approach similar to that of Justice Décary, arguing that the case should be resolved by s. 63. This section, it points out, is facially neutral, and allows a deduction for childcare regardless of sex or method of earning income, even though in Canadian equality jurisprudence, facial neutrality is irrelevant if a piece of legislation has an adverse impact on an identifiable group. However, for Quebec, issues of adverse impact are inseparable from issues of evidence. In its view, Symes has failed to produce any evidence of adverse-impact discrimination. Symes is required to establish, it says, not simply that women are engaged most often in the care of children but that they systematically assume a more significant share of the financial burden of that care.74 Quebec argues that Symes has failed to show any link between being responsible for the care of children and being responsible for the cost of that care. It would be ideologically dangerous, it argues, to extend the benefit sought by Symes, as it would risk the promotion of inequality by suggesting that women should be responsible for childcare. Such a result would fly in the face of legislative reform: [trans] To give a specific deduction to women alone on the supposition that they assume the primary financial responsibility for child care, as

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the appellant suggests, would have the effect of legislatively imposing such a responsibility, where both federal and provincial legislatures have expressly stated that this obligation belongs equally to both parents.75

Quebec maintains that Charter protection is irrelevant here because Symes has also failed to establish that the discrimination of the type she suffers is related to one of the personal characteristics listed in the Charter. Even if she does suffer discrimination, it is based on her membership in the group “business-income earners.” This is not a personal characteristic meriting protection under s. 15. Quebec also echoes the sentiments of Justice Décary. Symes, it says, seeks to compel the government to extend a benefit and to do so in a fashion that will exacerbate the distinction between business income and wage earners. Since wage-earning women won’t get any benefit, Quebec asserts that Symes is asking not for equal treatment but for preferential treatment, treatment that itself would work against the promotion of equality: [trans] In asking for the total deductibility of her child care costs as a business expense, the appellant is asking not that the law should not have a less beneficial impact, but demanding that the law should confer on her an advantage not extended to wage earners, nor to business men who, like the appellant, could assume the expenses linked to child care. Such preferential treatment would not assure equality between all categories of income earners, nor assume the right to equal protection and benefit of the law.76

Finally, Quebec raises the familiar theme of “choice,” arguing that even if a difference in financial costs could be established, and even if the differences were related to a prohibited ground of discrimination, this difference could not ground a Charter challenge: although Symes may carry the total financial cost of childcare, she does so as the result of a “family decision.” This is not quite the same as Power’s argument at trial. While he had also argued that Symes was responsible for childcare as the result of a family decision, his emphasis was on showing the “personal” as opposed to “business” relationship of the costs. Quebec’s argument is slightly different. Rather than focusing on the “personal” nature of a decision, it focuses on the “choosing” nature of an obligation. It argues that where a distinction is the direct result of a voluntarily assumed obligation – the result of a choice – the equality guarantee of the Charter has no application. Obligations that are voluntarily assumed by an individual cannot provide evidence of discrimination.77

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SCENE 4 The Hearing Before the Supreme Court of Canada For the first time in Canadian legal history, the Supreme Court has decided to allow a televised broadcast of its proceedings. The case selected for this experiment is Symes v. Canada, already at the centre of an ongoing public debate. The judges know the material in front of them and keep the lawyers busy with questions from the bench. Themes that were raised during the cross-examination at trial reemerge. One of these is the issue of “naming” and its gendered implications. Madame Justice L’Heureux-Dubé interrupts John Power, who addresses the Court using the phrase “My Lords” instead of “My Lords, My Ladies,” and pointedly asks him whether he is speaking only to the men on the Court or if he also wishes the two female justices to listen. Like Eberts responding to Power’s use of “Miss” rather than “Dr.,” Madame Justice L’Heureux-Dubé is alert to the politics of naming. The issue of “choice” also reemerges with force. In response to CBA comments about the economic burdens of caring for children, Justice Major echoes the argument expressed in the factum of the Attorney General of Quebec. MAJOR, J.: Let me ask you, to what extent does it matter that the question of having children is a matter of choice? The woman in the work force has a choice. Does it make the society have an obligation to encourage her to make the choice to have children, compared to her counterpart who wants a career without children? MR. CAMP: No. I don’t think society encourages one way or another, but society should not disadvantage her from doing so. MAJOR, J.: No, but who are they disadvantaging? Not all women. It is women who elect to have children. MR. CAMP: Yes. MAJOR, J.: Isn’t that a matter of their choice, knowing that having a child is going to bear some costs in time and money? MR. CAMP: Mr. Justice Major, I am tempted to say and I will say it is the future of our society at stake. We cannot enjoy a future unless we have children, we cannot enjoy it unless those children are properly cared for. They are us, they are our future. MAJOR, J.: But surely there is an element of personal choice in a decision to have children. It serves two purposes: one may be the future that you describe, the other is whatever comfort may arise out of having children. My simple question is: To what extent does the element of choice play any part in your submission?

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MR. CAMP: The element of choice as you have described it plays no part in my submission.78

It is clear from this particular interchange that “choice” is some sort of trump card: if Symes chose to have children, then questions of inequity are not relevant. She has made a choice and thus is solely responsible for her situation; what could look like an inequity is really no inequity at all. In reply, Mary Eberts, lawyer for Symes, takes up the issues raised by Justice Major’s question. She draws the Court’s attention to the complexities posed by talk about women and choice, illustrating the ways that a focus on the question “Didn’t she choose?” draws attention away from the constraints shaping women’s choices. The last point that I wish to make addresses the questions of my Lord Mr. Justice Major and my Lord Mr. Justice Gonthier on this issue that having children is a matter of choice. It is unfortunately true that if a couple chooses to have children the woman must bear them. There is no option. There is no choice there. Our social arrangements are such that women, by and large, also must rear them. In spite of the contention of counsel for the Attorney General of Quebec that men and women now, by statute, are equally responsible for the expenses of child care, I would ask that you not take the statutory prescription for the factual reality. There is ample documentation in this record that women still must bear the responsibilities for child care. She has no choice, or at least a false choice, if she wants to participate in the labour market. If she puts her child care responsibilities first, she chooses either to stay out of the workforce or to work part time because it is simply not possible to stay in it, or she chooses to pay a higher proportion of her income for child care than a man would have to do. On the issue of childlessness, it is not a choice for a woman to be childless in order to participate in the work force. Men do not have to choose to be childless in order to participate in the work force. It is a false and cruel choice to say that a woman voluntarily chooses to be childless. She is in fact responding to the structural inequities of the labour market that make it very difficult for women to participate in it while they have child care responsibilities. This Honourable Court has recognized that in recognizing the ability of women to choose reproductive freedom, because often women are in a situation where they cannot afford to raise children, so they will seek abortions. Until we have a society where women are equal and can equally afford to raise their children in the same circumstances as men do, that “sombre choice” – and I put it in quotation marks – must all too unfortunately still be available to them.79

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In her response to the question of choice, Eberts explicitly attempts to resituate choice in the context of reproductive decisions, reshaping the discourse to take the attention once again off personal troubles and focus it instead on social issues. How are these intersecting matters resolved in what is supposedly the moment of finality? The Supreme Court releases its judgment late in the winter of 1993. An aspect of the judgment that comes to immediate prominence is the fact that the Court has split on gender lines: the seven men find against Symes; the two women, for her. In Acts IV and V, we will consider separately the judgments some refer to as “two solitudes.”80 ACT IV The Majority Judgment Falling Action and Catastrophe Writing for the majority of seven, Justice Iacobucci articulates the three principal questions raised by this case: 1) Are childcare expenses deductible as business expenses under the Income Tax Act? 2) If not, is there a violation of s. 15(1) of the Charter? 3) If there is a violation, is it justified under s. 1 of the Charter? Answers to these questions will unfold in two scenes: one addressing the tax challenge, another addressing the Charter issues. In these two scenes, the Court will address three related matters: the meaning of “business” and “personal,” deference to legislative choices, and the problem of the “discriminating” woman. SCENE 1 The Tax Challenge To determine whether or not childcare expenses are deductible under the Income Tax Act, Justice Iacobucci considers three questions: first, the historical classification of childcare expenses as personal expenses under s. 18(1)(h); second, the indicia by which one might identify a legitimate business expense; and third, the relationship of the limited childcare deduction in s. 63 of the Act to the business-expense provisions. Are childcare costs personal expenses precluded by s. 18(1)(h)? Justice Iacobucci reviews the case law, noting that the Symes appeal deals with an expense that has been traditionally characterized as personal in nature. He adds: “If, in coming to a decision, this Court stated that since such expenses have always been personal, they must now be personal, the conclusion could be easily and deservedly attacked.”81 Historical reality does not bind the Court to conclude that contemporary childcare expenses should continue to be thus characterized. He refers to Dr. Armstrong’s evidence about the significant social change in the late 1970s and 1980s and the influx of women of child-bearing years into the workplace. He asserts that the existence of this trend is noncontroversial, saying that “the point

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could have been accepted even without the assistance of an expert.”82 Childcare expenses, he finds, are not necessarily prohibited by prior jurisprudence: the changing social trend provides a justification to reconsider the characterization of childcare. What then is the indicia for a business expense? Can childcare qualify? Justice Iacobucci extensively canvases the case law and the various tests that have been proposed, concluding that none of the tests provide more guidance than does the wording of s. 18(1)(a) itself, “for the purpose of gaining or producing income.” It is to this wording that he returns. Without providing an exhaustive list, he suggests that there are a variety of objective manifestations of purpose that the Court can use to determine the intention of the taxpayer. Amongst these, he notes: whether the deduction is ordinarily allowed as business expense by accountants, whether it is the type of expense normally incurred by others in that line of business, and whether the need that the expense meets would have been incurred had the taxpayer not been in business. The point of all these tests and objective measures of analysis is to help determine whether the expense in question is really a business need. The tax system, he notes, “seeks to prevent deductions which represent personal consumption. To the extent that a taxpayer can make a lifestyle choice while maintaining the same capacity to gain or produce income, such choices tend to be seen as personal consumption decisions, and the resultant expenses as personal expenses.”83 In light of his discussion, he returns to Symes’s childcare expenses, finding a balance of factors for and against seeing the expenditure as a business expense. He adds: “I am uncomfortable with the suggestion that the appellant’s decision to have children should be viewed solely as a consumption choice ... Pregnancy and childbirth decisions are associated with a host of competing ethical, legal, religious, and socioeconomic influences, and to conclude that the decision to have children should – in tax terms – be characterized as an entirely personal choice, is to ignore these influences altogether.”84 While it might be factually accurate to say that Symes chose to have children, Justice Iacobucci concludes that “it is more appropriate to disregard any element of personal consumption which might be associated with it.”85 Suggesting that there is little utility in arguments that rely on legal obligations to care for children, as well as those that compare children to suits or pets, he asserts that childcare expenses raise very specific and unique problems: I am of the view that child care expenses are unique: expenditures for child care can represent a significant percentage of taxpayer income, such expenditures are generally linked to the taxpayer’s ability to gain or produce income, yet such expenditures are also made in order to make a taxpayer

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available to the business, and the expenditures are incurred as part of the development of another human life. It can be difficult to weight the personal and business elements at play.86

If he were “compelled” to reach a conclusion with respect to the proper classification of childcare expenses, he would be forced to deal with competing policy considerations. Indeed, referring to arguments about the gender bias reflected in the development of business expenses, he makes the following comment: It is difficult to argue that history has not conflated the “needs of businessmen with the needs of business” ... It might be correct to assert that the changing composition of the business class and changing social structure demand a reconceptualization. However, I find it unnecessary to determine whether reconceptualization is appropriate having regard to the presence of s. 63 in the Act.87

Like Justice Décary in the Federal Court of Appeal, he finds that s. 63 of the Act functions as a complete code: taxpayers are confined to the deductions allowed within s. 63. Thus, it is not necessary for him to address conflicting policy considerations, nor to determine whether or not the childcare expenses can fall within the scope of business expenses. And what of Olympia Floor and Wall Tile, a case that supported Symes’s interpretation that s. 63 did not preclude deductibility of childcare as a business expense? Justice Iacobucci distinguishes the case, saying it stands simply for the proposition that a particular expenditure may be made for more than one purpose. While a charitable donation may have more than one purpose, he find that childcare expenses have only one purpose – a purpose fitting squarely within s. 63. He provides a number of rationales for his interpretation of s. 63 as a complete code for childcare. First, he finds that the language of the section “specifically comprehends the purpose for which [Symes] incurred her nanny expenses.”88 Second, in the context of families with two supporting parents (one of whom earns income from business), he finds that Symes’s approach would defeat the structure of s. 63 itself by allowing a higher income earner to take advantage of the business-expense provisions: “To the extent that s. 63 intends to limit child care expense deductions to lower earning supporters, the appellant’s position could substantially undermine that intent.”89 Worrying also about the possibility of strategically motivated behaviour, he finds Symes’s approach invites couples to make a “family decision” that the business-income earner has sole responsibility for childcare: “Without casting aspersions upon the appellant, I fear that in many cases there would be more bookkeeping than reality

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about such a decision. The courts [are] poorly suited to assess the validity of “family decisions” of this sort.”90 Further, his review of the legislative record leads him to conclude that Parliament intended childcare deductions to be extended equally to all Canadians: “I am not impressed by the suggestion that Parliament intended s. 63 to limit deductibility only for employees.”91 Rather, he believes that s. 63 was intended to be a complete legislative response to the childcare expense issue. In light of that conclusion, he finds it unnecessary to decide whether, in the absence of s. 63, childcare expenses could come within the category of business expense. SCENE 2 The Charter Challenge In this scene, having lost her tax challenge, Symes pushes her equality challenge to centre-stage. The Court must consider the Charter challenge: does the nondeductibility of childcare as a business expense violate the equality guarantee of the Charter and, if so, can this violation be justified under s. 1? Here we see a court struggling with issues of complex inequality and concerns about clean hands. The scene opens with Justice Iacobucci noting two propositions that were set forth by Justice Décary at the Federal Court of Appeal – propositions that had so troubled the CCPI: that the application of the Charter to the Income Tax Act would risk “overshooting” the purposes of the Charter, and that the courts should defer to legislatures with respect to difficult economic questions. Justice Iacobucci summarily dismisses both propositions, finding that neither “can withstand even brief critical analysis.”92 The Income Tax Act is not immune from Charter review simply because it involves difficult economic questions, nor is the application of the Charter in such contexts a trivializing matter. He then turns to s. 15 of the Charter itself and affirms some basic propositions concerning equality jurisprudence in Canada: that equality is a comparative concept, that discrimination may occur through adverse impact, and that disadvantage must be analyzed in context. These are noncontroversial. But the conflict before the Court is less over questions of theory than questions of application. Justice Iacobucci begins his application of equality theory, asserting that the focus of Symes’s s. 15(1) attack “is by no means obvious.”93 The proper focus for Symes’s equality challenge, he asserts, is s. 63 alone. Sections 9 and 18 vanish from the formulation, as does much of the historical and legal context in which s. 63 was enacted. This narrowing has important implications for the Charter analysis that follows. Justice Iacobucci looks for inequality in s. 63 of the Act. Facially, s. 63 does not draw any distinction based on sex: the section applies equally to men and women. Does the section have an adverse impact upon women

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who must incur childcare expenses to enable the pursuit of business income? He reviews all the evidence before the Court and says: “Based upon this information – indeed, even based upon judicial notice – I have no doubt that women disproportionately incur the social costs of child care.”94 But, this information does not lead him to the conclusion that discrimination has been shown: “In my view, in order to establish such an effect, it is not sufficient for the appellant to show that women disproportionately bear the burden of child care in society. Rather, she must show that women disproportionately pay child care expenses.”95 Since s. 63 defines a childcare expense as an actual expense of money, discrimination can only be established by showing that women are disproportionately paying these expenses. Justice Iacobucci is unwilling to use evidence of social burdens to infer that a positive childcare expense burden is placed directly upon women. In his words: “We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision ... Unfortunately, proof that women pay social costs is not sufficient proof that women pay child care expenses. Those social costs, although very real, exist outside of the Act.”96 Symes did of course provide evidence that she had paid these costs. But this is not the kind of proof Justice Iacobucci seeks. Indeed, he posits that it would be difficult to establish that women disproportionately pay childcare expenses. The issue of “choice” plays a significant part in his determination. Though Symes did pay these expenses, she did so because of choice – because of a family decision. This decision was not mandated by law or public policy. The law, he argues, views parents as being jointly responsible for their children. Parents simply cannot (at law) make a family decision reallocating that legal responsibility. This argument, first articulated by lawyer John Power and then extended by the Federal Court of Appeal and the Attorney General of Quebec, is adopted by the majority: “Parents (and particularly parents living with children) are viewed as having joint legal responsibility to care for children. In most households involving more than one supporting person, therefore, regardless of ‘family decisions,’ the law will impose the legal duty to share the burden of child care expenses, if not necessarily a duty to share the child care burden itself.”97 There may be differential burdens in the social world, but Justice Iacobucci finds that Symes has not established any violation in the legal world of s. 15(1) of the Charter: she has failed to prove that s. 63 draws any distinction based on sex. Symes having failed to make a prima facie case of discrimination under s. 15 of the Charter, the Court finds it unnecessary to turn to questions of justification under s. 1. Justice Iacobucci makes a number of additional comments. In these

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comments, one can hear echoes of the privileged-woman discourse first evoked by Power at trial, a discourse that characterized Symes as selfishly pursuing her own narrow interests. Symes, Justice Iacobucci tells us, belongs to a particular subgroup of women (married women who are entrepreneurs), adding: “It is important to realize that her evidentiary focus was skewed in this direction. I pause to note that the appellant’s focus upon self-employed women to the exclusion of women employees is a very curious aspect of this case ... the appellant thought it desirable to distance herself from employees in this case. When considering her arguments with respect to statutory interpretation, this approach is understandable. When considering her Charter arguments, it is less so.”98 A wider focus, he says, might have led to a different result: “A different subgroup of women with a different evidentiary focus involving s. 63 might well be able to demonstrate the adverse effects required by s. 15(1).”99 Again, taking Symes to task, he notes that “no particular effort was made in this case to establish the circumstances of single mothers.”100 Symes weakened her own argument, he suggests, by focusing only on gender equality and failing to consider the many other distinctions drawn by s. 63: “The appellant’s equality argument before this Court effectively ignored the relevance of a parental status distinction. The same is certainly true with respect to business people in a loss position and farmers.”101 Commenting on inequities between families with high and low overall income, he notes that Symes also made “no attempt to involve the circumstances of low income Canadians in the Charter challenge.”102 Justice Iacobucci does agree that the s. 63 deduction is more often denied to women: when both husband and wife work, the woman is more often the lower income earner and is thus more commonly denied the deduction. Section 63 does “affect” women, but this gender effect does not necessarily violate s. 15: it would exaggerate societal inequality only if the woman in question “actually paid more child care expenses.”103 Given his conclusion that in this case there was no evidence presented that women pay disproportionately more money in childcare, he finds the genderbased argument fails. He adds a further comment concerning the kind of s. 15 Charter analysis that might occur in another case. If s. 63 of the Income Tax Act were shown to have an adverse impact on some but not all women, it might be possible to show a s. 15 Charter violation: an adverse effect felt by a subgroup of women can constitute sex-based discrimination.104 However, he adds, while an adverse-effect approach might reveal the presence of a distinction based on sex, it might also reveal both men and women to be negatively affected by the limited deduction. Thus, while it may be possible to show that there is a distinction based on sex, it would be nearly impossible to establish that the distinction imposed on one group (women) is a

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burden not imposed on others (men). “I cannot imagine,” he says, “how such disadvantage could be located for both men and women at the same time.”105 While the issue was moot since the majority had found no breach of s. 15, Justice Iacobucci closes with a few remarks respecting s. 1 of the Charter. First, he comments on the inadequacy of the government’s response: I must express some concerns with the extent to which the [government] presented a s. 1 argument. The government, of course, bears the burden of proving that a Charter infringement is a reasonable limit, demonstrably justified in a free and democratic society ... Although a variety of information was placed before this Court which could be used in a s. 1 analysis, ... most of this information was not specifically related to s. 1 of the Charter in any way ... Courts should not be left in a factual vacuum.”106

This brief critique of the government is followed by a more extended critique of Symes, a critique that again evokes themes of privilege and selfishness: The appellant’s Charter arguments did not consider the importance of viewing s. 63 as a complete response to child care expenses. I believe that one effect of this approach is that the appellant’s arguments were presented in a curious isolation. We were invited to consider the Charter only with respect to self-employed women, and it was suggested to us that a remedy could be granted, without the need to consider the position of other women, other parents, or the government’s overall response to child care needs. Instead of focusing upon the manner in which s. 63 of the Act operates as a child care system, the present appeal focused only upon the propriety of an instrumental result. This Court was invited to use the Charter to rectify a disadvantage allegedly suffered by businesswomen vis-à-vis businessmen, and, in the process, this Court was invited to ignore the effect of allowing a complete deduction on the rest of the system ... such an instrumental approach is inappropriate.107

In the majority judgment, the Court picked up the themes of choice, privilege, and selfishness: the individualizing model won out over the sociological one. In the dissent, other themes will be dominant. Justices L’Heureux-Dubé and McLachlin (the two women on the Court), will register explicit challenges to certain dimensions of the majority analysis, to the majority’s characterization of the issues, and to the majority’s assessment of legitimate legal responses.

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ACT V The Dissenting Judgment Dénouement: A Revisioning Justice L’Heureux-Dubé disagrees with the result reached by Justice Iacobucci, as well as with his conclusions regarding s. 63 of the Income Tax Act and s. 15 of the Charter. In Scene 1 she considers the tax challenge, and in Scene 2 she comments on Justice Iacobucci’s assessment of the Charter challenge. In both scenes, there are echoes of earlier discussions of the difference between what C. Wright Mills called “troubles” and “issues.” Madame Justice L’Heureux-Dubé speaks of childcare not as a personal problem but as a social issue. She also focuses on the importance of revealing the hidden gender that has structured the content legal categories such as “business expense.” SCENE 1 The Tax Challenge Justice L’Heureux-Dubé begins by framing the appeal – an appeal that not only concerns the statutory interpretation of the Income Tax Act but also “requires that we ask fundamental and complex questions about the visions of equality and inclusivity that mould our legal concepts.”108 With these questions articulated, she asks what constitutes a business expense. She explicitly rejects Justice Décary’s view that business expenses are neutral – that they have nothing to do with the particular needs of those in charge of business: “What, in my view, has traditionally been recognized as a ‘commercial need’ has everything to do with those persons who have traditionally held positions in the commercial sphere – primarily men.”109 Commenting on the gendered analysis entangled in the statutory interpretation in this case, Justice L’Heureux-Dubé notes that while Symes is a woman, s. 9 of the Act is gender-neutral; a similar claim could have been made by a businessman in the same situation. If such a businessman were the primary caretaker of his children, the rationale as well as the end result would have been the same, since the ability to deduct a legitimate business expense should not be based on one’s sex. Having made this point, Justice L’Heureux-Dubé goes on to say: The reality, however, is that generally women, rather than men, fulfil the role of sole or primary caregiver to children and, as such, it is they alone who incur and pay for such expenses. Men, until very recently, have rarely been primary caregivers, nor single parents and, as a result, they have not incurred direct child care expenses. In many traditional family situations child care issues were not concrete business expenses for men in business, as most often their wives stayed home to care for their children or made such child care arrangements. Consequently, such a businessman would

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have no basis on which to claim child care expenses as a business expense. However, in light of our changing society, in which men are being called upon to bear a greater burden of child care responsibilities and expenses, which may impede their ability to earn a profit, it is quite possible that businessmen will accordingly be entitled to claim such expenses should they meet the criteria for business expense deductions, as set out in s. 18(1)(a). Regardless of this future possibility, however, at this time the reality is that it is primarily women who incur the cost, both social and financial, for child care and this decision cannot, as such, ignore the contextual truth when examining whether child care may be considered a business expense.110

Returning to the question of what constitutes a business expense, Justice L’Heureux-Dubé points out that the definition of a business expense has expanded over time “as the needs of those pursuing business have changed.”111 She canvases the case law, illustrating the expansion of the category of business expense to include items ranging from home offices, to entertainment and meal expenses, charitable donations, legal and accounting fees and damages, club dues and initiation fees, to Rolls Royces, BMWs, and employee benefit packages (including daycare centres). Though this expansion has been coextensive with changes in the needs of those doing business, Justice L’Heureux-Dubé notes that courts in the past nonetheless assumed that commercial needs were objectively neutral; courts did not examine the close relationship between childcare and women’s business income. A review of the evidence before the Court reveals the importance of this relationship: “One of the critical differences in the needs of business men and business women is the importance of child care for business people with children, particularly women.”112 The close relationship between childcare and women’s business income has not been reflected in the characterization of business expenses. It is clear, she says, that this area of law “is premised on the traditional view of business as a male enterprise and that the concept of a business expense has itself been constructed on the basis of the needs of businessmen.”113 She adds: This is neither a surprising nor a sinister realization, as the evidence well illustrates that it has only been in fairly recent years that women have increasingly moved into the world of business as into other fields, such as law and medicine. The definition of “business expense” was shaped to reflect the experience of businessmen and the ways in which they engaged in business. As Dorothy Smith points out, ... when only one sex is involved in defining the ideas, rules and values in a particular domain, that one-sided standpoint comes to be seen as natural, obvious and general.

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As a consequence, the male standard now frames the backdrop of assumptions against which expenses are determined to be, or not to be, legitimate business expenses. Against this backdrop, it is hardly surprising that child care was seen as irrelevant to the end of gaining or producing income from business but rather as a personal nondeductible expense.114

Against the experience of many men’s lives, Justice L’Heureux-Dubé finds it to be clear why childcare has historically been understood as personal. The evidence before the Court revealed that few men reported making work-related decisions on the basis of child-raising responsibilities. For most men, childcare responsibility did not impact the number of hours they worked, nor their ability to work. The same could not be said for women.115 But the experience of women’s lives, a reality in which childcare arrangements are crucial, suggests a need to reconsider the traditional line drawn between “business” and “personal.” The current line reflects the experiences of those who have done the drawing. Looking at this line, she asks whether current business deductions available for cars, substantial charitable deductions, club dues and fees, lavish entertainment, and the wining and dining of clients and customers are so obviously business rather than personal expenses. Though potentially personal, each has been accepted as a legitimate expense reflecting a real cost incurred by businesspeople in order to produce income. She notes: “The real costs incurred by business women with children are no less real, no less worthy of consideration and no less incurred in order to gain or produce income from business.”116 Justice L’Heureux-Dubé gives short shrift to the idea that such expenses should be disallowed because they flow from a personal choice to have children. Like Justice Iacobucci, she rejects the notion that “choice” should be used to analyze childcare expenses: While there is a personal component to child raising, and while the care of children may be personally rewarding, this “choice” is a choice unlike any others. This “choice” is one from which all of society benefits, yet much of the burden remains on the shoulders of women. Women “choose” to participate in an activity which is not for their benefit alone, and, in so doing, they undertake a function on behalf of all society.117

Given the unique nature and complexity of raising children, she finds that it is “inappropriate to adopt the language of voluntary assumption of costs” particularly where those costs may be allocated in a discriminatory fashion with the burden falling primarily on women.118 Having concluded that nothing in ss. 9, 18(1)(a), or 18(1)(h) would preclude a determination that childcare costs could be deducted as a business expense, Justice L’Heureux-Dubé turns to s. 63: is it a complete code,

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trumping other sections defining business expenses? She concludes that it is not. First, she rejects an approach that considers s. 63 in isolation. The Court cannot, she tells us, narrow the focus on s. 63 so as to avoid answering questions about the myth of gender neutrality rooted in current interpretations of ss. 9, 18(1)(a), and 18(1)(h). Such an approach is inconsistent with the purpose of s. 63 itself, inconsistent with traditional approaches to deductions under the Act, and inconsistent with the goal of equality in the Charter itself. An interpretation of s. 63 that so clearly ignores the context in which the 1972 revisions were made and the subsequent societal evolution, is an interpretation guided by the same “myth of neutrality”119 that influenced judicial pronouncements that childcare expenses were clearly personal. Despite the Crown’s initial concession that nothing in s. 63 would preclude the deductibility of otherwise legitimate business expenses, both Justices Décary and Iacobucci found that the mere existence of s. 63 prevented childcare from being a business deduction under s. 9. Justice L’Heureux-Dubé rejects this conclusion and points out that nothing in the structure of the Act or the language of s. 63 implies that s. 9 deductions are abolished or restricted in this respect. Had Parliament intended such a result, it could have expressed it in clear language. Nor, Justice L’Heureux-Dubé finds, does the Court’s jurisprudence accord with such an approach to s. 63. In particular, she is unimpressed with Justice Iacobucci’s explanation of the holding in Olympia Floor and Wall Tile. There, the Court concluded that the presence of a limited charitable deduction did not preclude deductibility under s. 9. Justice Iacobucci explained the seeming inconsistency with his interpretation of s. 63 by concluding that while a charitable deduction could be made for more than one purpose, there was only one purpose for a childcare deduction. Justice L’Heureux-Dubé disagrees, making extensive reference to the actual words and reasoning of the judge in that case. The point of Olympia is that people may do business in different ways and that these different ways of doing business should be acknowledged under the Income Tax Act. Finding that s. 63 is at the very least ambiguous with respect to its effect on s. 9(1), she concludes that the only correct approach is to resolve the ambiguity in favour of the taxpayer. Justice L’Heureux-Dubé also finds that a historical and purposive exploration of the legislation militates against the complete-code thesis. Justice Iacobucci based his interpretation of s. 63 in part on the presumption that Parliament could not have intended to limit deductibility only for employees. Justice L’Heureux-Dubé approaches the history of s. 63 from a different angle, noting that the section was enacted to provide assistance to working parents in a context where courts had disallowed childcare as

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a business expense. The purpose of the section was to assist parents in general, not to reinforce the gendered construction of business expenses. Indeed, when the deduction was implemented, she doubts that the legislators even considered the possibility that childcare might ever be viewed as anything other than a personal expense. Would the purpose of s. 63 be undermined by an interpretation of business expense allowing for the deduction of childcare expenses in appropriate cases? Noting that one’s analysis depends on one’s view of the purpose of the section, Justice L’Heureux-Dubé questions Justice Iacobucci’s determination that such an interpretation would defeat the goal of allowing an equitably based general deduction. She does not find the goal of equity to lead one to the conclusion that s. 63 should preclude childcare from being deductible under s. 9. For one thing, even if s. 63 were a complete code, it would undermine the goal of equity on its own terms since it provides a larger benefit to those who have higher incomes. A concern that businesspeople and employed persons may not receive identical treatment regarding childcare expenses flows not from s. 63 but from the rationale of the Act itself – the Act distinguishes the two categories of income earners, allowing one group to claim deductions that are unavailable to the other. While noting that the tax system is based on a commitment to principles of horizontal and vertical equity, Justice L’Heureux-Dubé finds it apparent that the system also creates and perpetuates many inequalities.120 Any discussion of the differential tax treatment of wage and business-income earners must acknowledge that the Act operates in a discriminatory fashion. Indeed, she adds, the Act may never have attempted to maintain equilibrium between the income and wage earner, and some of these distinctions in treatment may constitute a real difficulty within the tax system. In distinguishing employment from business income, however, the tax system does acknowledge that there are expenses incurred by businesses (such as overhead) that are simply not incurred by employees. The realities of doing business cannot be ignored and business deductions are thus a regular occurrence. The question of what constitutes a business deduction is not cast in stone but adapts with the realities of doing business. The central issue here, Justice L’Heureux-Dubé finds, is that the concept of a business expense must take account of the realities of both businessmen’s and businesswomen’s expenses: “This case is most fundamentally not about the many vertical inequities that may exist, but rather a question of horizontal equity and the need to treat all businesspersons alike.”121 Justice L’Heureux-Dubé also challenges the hidden presumption that the business expense would perpetuate inequalities by offering a deduction to the already overadvantaged wealthy businessperson. She says:

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We must not assume that most self-employed entrepreneurs, whom the Act favours, are multi-millionaires – they are not, as the evidence of Dr. Armstrong demonstrates. Dr. Armstrong indicated that self-employed women generally work in small businesses of three to four persons. Their businesses are mostly in the service sector, where, if they are not physically present at the work site, the business could not operate, for example: beauty salons, shops, doctors, lawyers, caterers, etc. As a result of long hours and the requirement to work at the place of business, rather than at home, child care needs are extremely critical for these women. Businesswomen and, for that matter, men who legitimately incur child care expenses for the purpose of gaining or producing income from business must not be deprived of the benefit of a business deduction for their expenses.122

Justice L’Heureux-Dubé also rejects Justice Iacobucci’s concern that allowing a childcare deduction would result in a fictitious distribution of childcare – one that reflected an accounting measure rather than reality. She points out that the taxpayer seeking the deduction will have to prove that childcare is necessary for her or him to gain or produce income from business, as well as establish to what extent he or she actually is responsible for childcare: “Such scrutiny is really no different from the procedure which the MNR undertakes to determine the deductibility of home office expenses and numerous other expenses.”123 In short, Justice L’Heureux-Dubé finds no support for the majority conclusion that s. 63 is a complete code for childcare. She finds nothing in the wording of s. 63 that excludes the application of s. 9 and concludes that the majority interpretation runs contrary not only to the purpose and historical basis for the enactment of s. 63, but also to traditional approaches to diverse deductions under the Act. She also says that one cannot overlook the gendered effect of an interpretation that concludes that s. 63 overrides the possibility of a business deduction for childcare. The Court cannot, she says “simply pay lip service to equality” and leave intact an interpretation that “continues to deny the business needs of businesswomen with children.”124 A consideration of Charter values when interpreting the Act only strengthens her conviction that Symes should be able to deduct her childcare expenses as a business expense. SCENE 2 The Charter Challenge Because she reaches her decision on the basis of statutory interpretation, Madame Justice L’Heureux-Dubé is not required to answer the Charter questions. In this scene, however, she will nonetheless enter into Charter waters in order to respond to the majority’s findings. In her comments, there is a suggestion that the

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majority approach may have been influenced by assumptions about female selfishness and selflessness, as well as by the “myth of the wealthy businesswoman.” While agreeing with Justice Iacobucci’s discussion of the basic principles of Charter analysis, Justice L’Heureux-Dubé disagrees with his application of those principles. In particular, she is troubled by the focus on s. 63 rather than on business deductions as a whole; by the finding that there was insufficient evidence of a gendered economic childcare burden; and by the focus on the childcare costs incurred by all women rather than simply businesswomen. Justice L’Heureux-Dubé rejects the majority assertion that the Charter focus is on s. 63 alone and that a s. 15 violation can be shown only by proof that s. 63 disproportionately limits the deduction of actual expenses incurred by women. However, even if she were to agree with such a focus, she would still disagree with the majority’s finding that there was insufficient evidence of discrimination. Justice Iacobucci had claimed that “proof that women pay social costs is not sufficient proof that women pay child care expenses.” Justice L’Heureux-Dubé says: I beg to differ. Such inference is, in my view, inescapable and, further, in this case, it was proven that Ms. Symes did incur the expenses for which she claims the deduction. Such inference is part and parcel of a recognition that child care responsibilities present a significant obstacle for women in the social and economic domain, that this issue is an equality issue and that the interpretation of legislation can and must accommodate equality and the changing realities of our society.125

She sees no inadequacies in Symes’s evidentiary case. Nor does Justice L’Heureux-Dubé agree with the majority assertion that the equality challenge raised the issue of the childcare costs suffered by all women. That is not to say that she is unaware of the complex problems of discrimination raised by the case: I certainly agree that all women suffer severe social and financial costs associated with child-bearing and rearing and that these costs are incurred whether a woman is a self-employed small business owner, a lawyer, an employee or a fulltime homemaker and caregiver. In fact, it is my view that all women, as a consequence of gender, suffer disadvantages associated with caring for children. Further, I am not unaware that income tax deductions are undoubtedly not the best way for government to provide assistance with regard to the high cost of child care ... Neither am I ignorant of the fact that the

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disparate treatment of employed persons and businesspersons under the Act is problematic and may require future examination ... If these many and complex issues were before the Court, a critical examination of the interplay of socio-economic class in the income tax system, the position of all women in society and the implications of child care would have to be examined.126

However, Justice L’Heureux-Dubé concludes that none of these broader questions are before the Court. Symes has raised questions only about the disadvantage suffered by businesspersons – primarily women – who are disallowed an expense incurred for the purpose of gaining or producing income from business. That issue, she says, must be answered. It cannot be addressed “simply by pointing to the greater issue of the position of women generally.”127 She agrees with Justice Iacobucci that single mothers may provide a more clear example of hardship, but notes that “discrimination cannot be justified by pointing to other discrimination.”128 Justice L’Heureux-Dubé reminds her readers that such a standard was not applied to white, British lawyer Mark Andrews in the landmark equality case, Andrews v. Law Society of British Columbia. There, the Court did not justify the infringement of Andrews’s equality rights on the basis that he, as a white male lawyer of British descent, was better off than most other non-Canadians. Not only is this not the standard to which other equality claimants have been held, Justice L’Heureux-Dubé argues, but such a focus mis-states the issues raised by the case: This is not a case about the advantageous position in society some women garner as opposed to other women, but, rather, an examination of the advantaged position that businessmen, hold in relation to businesswomen. If each claim under s. 15 of the Charter required that all the problems of discrimination with respect to a particular group be remedied as a result of one investigation, Andrews would probably not yet have been decided. The fact that Ms. Symes may be a member of a more privileged economic class does not by itself invalidate her claim under s. 15 of the Charter. She is not to be held responsible for all possible discriminations in the income tax system, nor for the fact that other women may suffer disadvantages in the marketplace arising from child care. As the appellant argues, we cannot hold every woman to the position of the most disadvantaged women, apparently in the name of sex equality.129

Constitutional questions, she reminds the reader, must be examined in their broader political, social, and historical context. In this case, she says: “We must keep foremost in our minds the unequal cost of child care that

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women have traditionally borne, the effect of such cost on the ability of women to participate in business or otherwise be gainfully employed and, finally, the impact of child care on women’s financial ability and independence.”130 A focus on s. 63 alone without reference to the general provisions governing business expenses obscures this context. A proper approach must incorporate the perspective of the group suffering discrimination, and equality, in her view, demands “that the experience of both women and men shape the definition of business expense.”131 The issue before the Court is not the adverse gendered impact that might flow from the generally available limited childcare deduction. It is rather the gender bias inherent in an approach that defines s. 63 in such a way as to preclude women from claiming legitimate business expenses. Turning from her critique of the majority’s Charter analysis, Justice L’Heureux-Dubé provides a brief review and summary of evidence before the Court dealing generally with women and childcare. This evidence, she points out, demonstrates that women remain primarily responsible for childcare, that this responsibility has a very real impact on women’s patterns of employment, and that women suffer financial losses as a result of these responsibilities. The cost of childcare alone consumes a large portion of women’s income and this is so whether they work inside or outside the home, whether they are wage earners or self-employed. She then turns to evidence before the Court dealing more particularly with self-employed women. These studies emphasize the modest nature of women’s ventures, their relatively low incomes, their long work hours, and the extensive discrimination they encounter in obtaining financing and dealing with creditors. While these women confronted many difficulties, childcare responsibilities were identified as one of the primary obstacles preventing them from realizing their full potential as entrepreneurs. Justice L’Heureux-Dubé cites one study’s description of the typical Canadian businesswoman as: a white woman, married, with two children, and owning 100% of a retail business. She is a high school graduate who worked in a related field before starting her business but had no experience as a manager. Her current venture is her only one, which she founded six to ten years ago with less than $25,000 in start-up capital, financed by her own savings. She continues to finance the operation herself, taking less than $30,000 annually in salary, even though she works 50 to 70 hours a week. The business employs an average of three people. The strongest impression remaining after talking with hundreds of entrepreneurs is the modest nature of the business.132

These studies suggest that many of the comments heard during the case about “privileged businesswomen” are based on myth and stereotype

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rather than on the lives of the majority of businesswomen. The Charter analysis, Justice L’Heureux-Dubé concludes, must be approached not with regard to myth but to a context shaped by “the reality of women’s lives and the severe implications of child care.”133 EPILOGUE The Sound of Silence And so our courtroom drama comes to a close. The players pack up their briefcases, hang up their robes, exchange a few words in the halls, and go their separate ways. The echo of distant heels and closing doors gradually fades. For a lingering moment, the memory of the earlier clamour of voices hangs in the sterile air of the corridor, but it too wafts away, and the courthouse settles into silence. And the silence carries its own message: law is neither static nor monolithic. Rather, it is an arena in which multiple discourses interact in a competition to have their vision accepted as persuasive. Certainly, the competition of discourses in this drama has revealed continually shifting characterizations of the mixture of power and wound, privilege and disadvantage. And while established powers often speak with a louder voice, those voices are themselves coloured by interaction with other discourses. Our play has aimed to reveal how the courtroom discourses flowing through the Symes case were mobilized and consolidated in ways that both reproduced and challenged existing social relations of power. For while the Supreme Court majority may seem to have silenced the cacophony of voices in order to speak “as one,” even that voice remains inflected with traces of the multiple discourses that shaped the contest.

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5 The Limits of Judicial Power: The Court as Constrained

In the previous chapter, the question “Can childcare be classified as a business expense?” took us deep into the murky discursive waters of courtroom litigation. Symes’s challenge to the historical characterization of childcare expenses as personal opened a proverbial can of worms, engaging complex questions about the distribution of productive and reproductive labour within the family and across society as a whole. It raised difficult questions about class privilege and disadvantage and about the way gender shapes the supposedly gender-neutral experience of parenthood and the supposedly gender-neutral construct of “business.” The case left people asking whether childcare was a personal trouble or a public issue; whether the social and/or economic costs of children should be borne by individuals, by business, or by society as a whole; and whether solutions could be crafted by individual families or if governmental intervention was required. In the midst of the public furore over the outcome in the Symes case, legal critics Hutchinson and Carpenter warned people against overestimating the Court’s ability to bring about change for those who need it most, saying that there are limits to what a court can or should be expected to do.1 Indeed, to the extent that commentators often neglected to consider the shape and structure of the legal field, thus effacing the constraints that limit the ways legal texts are created and can be read, some of the public discussion can be seen as misguided criticism of the Court on matters in which it was constrained. In this and the next chapter, accepting the argument that courts are subject to important constraints, I offer an analysis of the Supreme Court’s judgment in the Symes case. I do so in a context that continues to focus on the intersection of power and wound and the role of discourse in characterizing those located at the intersection as primarily marked by power or constraint. I suggest that one can look at the Court in much the same

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way that many commentators looked at Symes: as marked by privilege and disadvantage – by power and constraint. In this chapter, I explore the structure of the legal field and the constraints this structure placed on the Court. While it would be misguided to ignore the very real powers that the Court possesses, it would be equally misguided to ignore the social, political, and legal constraints under which it operates. Such constraints should be accounted for as they place limitations on the possibilities open to the Court and, while they do not predetermine a result in the case, they do have an important shaping effect. However, I also suggest that in the judgment, the Court asserts it was constrained in ways it was not, while simultaneously denying the existence of some significant limits to its power. The Rules To a large extent, the Court is the prisoner of the case which the parties and interveners have presented to us. – Chief Justice Antonio Lamer, Reference Re Remuneration of the Judges of the Provincial Court (P.E.I.)2 I make up the rules of a game, and then I attempt to play it. If I seem to be losing, I change the rules. – Michael Snow, The Michael Snow Project: Visual Art, 1951-19933

Rules and restrictions give shape to the judicial field, the realm governing the world of legal possibility and probability. In this realm there are limits placed on what judges can and cannot do. Even if one doesn’t go quite so far as to call the Court a prisoner, one must concede that courts do operate under a set of constraints. The rules of the legal game require that judges are subjected to the discipline of the facts and evidence, work within the limits set by the texts before them, and take account of relevant law. Judges are required to play by the rules of the game, rules that sketch out the boundaries of the realm of the possible. Of course, to say that rules and restrictions shape legal texts is not to suggest that judges have no freedom to move around within the legal field, nor to suggest that rules determine specific results in specific cases. It is clear enough that, in matters of judicial interpretation, there is a great deal of freedom. As all first-year law students quickly learn, in applying case law a court has the leeway to choose among cases, follow those that support a position, distinguish away those that do not, and even to

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overrule older cases. Facts rarely speak for themselves and courts have flexibility in determining what the facts mean. The tools of statutory interpretation give the courts similar flexibility regarding the interpretation of legislative texts.4 Far from dictating answers, they allow courts to take narrow or more expansive approaches to the language of a text. And, where judges find it necessary, they (like Michael Snow) have the power to overrule themselves, to change the rules of the game. The range of possibility open to the judge well illustrates the elasticity inherent in the common law. But if it is a mistake to overestimate the constraining effect of legal rules, so too is it a mistake to overestimate this elasticity and flexibility. As many commentators have noted, this flexibility is not always exercised.5 The law often illustrates a strong tendency towards the status quo, with its practitioners often feeling themselves bound to operate within specific frameworks.6 One of the very important felt constraints is the need to maintain the legitimacy and integrity of juridical decision making itself. Interpretive choices are thus constrained, for example, by the Court’s sense of the boundary between judicial and legislative action: Is the Court acting like a court or like a legislature? Is it interpreting the law or is it making the law? In the next section, I explore possible areas of constraint confronting the Court as it struggled to resolve the Symes case. With respect to the tax and equality questions, I suggest that the jurisprudence was not the primary constraining force. The primary constraints, I argue, arose from the complexity of the equality problem and the shape of the case as argued by the government, coupled with the perceived need to maintain an appropriate division of judicial and legislative labour. A Brief Review of the Logical Structure of the Case As Chief Justice Lamer said, the Court is, in some measure at least, a prisoner of the case brought before it. At the very least, the Court is required to address the legal questions raised by the case before it. Thus, I begin with a brief review of one of the first and most obvious constraints on the Court: the logical structure of the case. The logical structure of the Symes case required the Court to answer five questions. The Tax Questions: 1 Is childcare “personal or private”? A. Symes wins (go to question 2). B. Government wins (go to question 4). 2 Can childcare be a business expense? A. Symes wins (go to question 3). B. Government wins (go to question 4).

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3 Is childcare precluded as business expense by s. 63? A. Symes wins. End of case. B. Government wins (go to question 4). The Charter Questions: 4 Is the preclusion of childcare a violation of equality rights? A. Symes wins (Go to question 5). B. Government wins. End of case. 5 Is the violation of s. 15 justified under s. 1? A. Symes wins. End of case. B. Government wins. End of case. The relationship between the questions can be sketched out as follows:

Tax Questions 1. Is childcare personal? ♥

♥

YES

NO ♥

2. Can childcare be a business expense? ♥

♥

NO

YES

♥

♥

YES

NO: SYMES WINS

♥

♥

♥

3. Is full deductibility precluded by s. 63?

Charter Questions 4. Does this interpretation violate equality rights? ♥

♥

YES

NO: CROWN WINS ♥

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5. Can the violation be justified by s. 1 of the Charter? ♥

♥

YES: CROWN WINS

NO: SYMES WINS

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The logical structure of the argument provided that a win or loss would have to follow a certain route. For Symes to succeed, she would have to win on either the tax route or the Charter route. The tax route required that she be successful on all three tax questions. If she was, the Charter questions would be moot. If, however, Symes were to lose any one of the three tax questions, the Charter route would become available. To win on this route, she would need to be successful on both remaining questions. First, she would need to establish that ss. 18(1)(a), 18(1)(h), or 63 of the Income Tax Act violated the equality guarantee in s. 15 of the Charter. If she could meet the generally low burden of proof for establishing such a violation, the burden would shift to the government to establish that the violation could be justified under s. 1 of the Charter using the Oakes test. That is, the government would need to establish that: the legislation advanced a pressing and substantial objective; that it was rationally connected to the objective; that it impaired the right no more than necessary to accomplish the objective; and that the law did not have a disproportionately severe effect on the persons to whom it applied. If the government failed thus to justify its legislation, Symes would win. While Symes could follow two routes to possible success, the government really had only one: the Charter route. If the government were to win on any single tax question, the matter would automatically shift to the Charter route. Government success would require one of two things. Either Symes would have to be unsuccessful in establishing any discriminatory adverse impact or the government would have to justify the exclusion under s. 1. The next question then is: To what extent was the Court constrained in the range of possible answers open to it at any of the five points? Would prior tax law have placed any constraints on the answers possible to questions 1, 2, or 3? The Tax Route Recall that there were three tax questions. The first was to determine whether childcare expenses would be excluded under s. 18(1)(h) of the Income Tax Act as being “personal or private.” The second (necessary only if childcare was not excluded as personal or private) was whether or not childcare expenses could be expenses made “for the purposes of business” under ss. 9 and 18(1)(a) of the Act. The third was to give meaning to s. 63 of the Act. Was it a complete code precluding the deduction of childcare under any other section? Was the Court constrained in answering any of these three questions by its own prior tax jurisprudence? I suggest that the actual tax-case law was not much of a constraint on the Court in this case. Indeed, the Court had a variety of cases that could provide authority for it to move in a number of directions.

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Let us look at the first question: Is childcare personal? That is, did s. 18(1)(h) exclude childcare as a personal or private expense? Since the legislative text offered few clues, the Court would have to make reference to other sources. On the one side was the fact that, historically, courts have characterized childcare as a personal expense. Given the weight of case law, it was open to the Court to simply apply this law. On the other side, the Court had the evidence of Dr. Armstrong, who argued that such characterizations reflected a narrow and biased vision of the relationship of women to children and women to paid labour. This evidence addressed the increasing critique of the old divisions of public and private. In its own jurisprudence, the Supreme Court had begun moving towards substantive equality (an approach focusing on fostering actual and not only formal equality), and the evidence suggested that the privatizing of childcare was a factor in the current barriers to actual equality for women. In short, to declare childcare to be a personal matter would be problematic and highly controversial. The Court would have to look at competing policy concerns for either choice. And now to the second question: Can childcare be a business expense under ss. 9 and 18(1)(a)? Again, the case law illustrates that an interpretation of these sections could legitimately go in either direction, and that an answer in either direction would be controversial. Iacobucci concludes that the answer essentially involves competing policy considerations. Factors tending to push towards rejecting the claim would include the question of implications: the result could be significant changes in tax revenue, changes that the Court would rather see made by a legislative body. On the other hand, it would be problematic to say that children have nothing to do with business. This would be a difficult conclusion to reach in light of the government studies that identify childcare as the most significant barrier to female employment. Depending on where one placed the emphasis, it would be possible to interpret childcare as falling inside or outside the category of business expense. The third question asks: Is full deductibility precluded by s. 63? The majority says yes, the dissent says no. Despite Iacobucci’s claim to have been lead ineluctably to his conclusion, there is again plenty of room for discussion concerning this section. On the one hand, the text of s. 63 mentions both employed and self-employed parents. The section seems clearly to allow the deduction to both. This arguably suggests that the language leans towards exclusivity. However, there is no language precluding the coexistence of the s. 63 limited childcare deduction with a separate business-expense deduction. At best, the statute is silent on this point. While legislative silence is sometimes given positive meaning,7 an accepted principle of construction in tax law is that, where the statute is

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silent or ambiguous, it is to be construed in favour of the taxpayer.8 There is also the fact that s. 63 was conceded at trial by the MNR. That is, the government agreed that if childcare expenses could be characterized as business expenses, s. 63 would not operate to limit deductibility. The government itself did not initially understand its own legislation as precluding other legitimate business expenses. In sum, a review of the substantive law touching on the narrow Income Tax Act questions shows that “the law” did not conclusively determine the outcome on any of questions 1, 2, or 3. Given legitimate elasticity in interpretation, the Supreme Court (like the Trial Court and Federal Court of Appeal) would be able to find support for conclusions in either direction. The Charter Route If the Court was not greatly constrained on the tax route by the weight of prior tax jurisprudence, was the same true of the Charter route? The Court would have to answer the final two questions. Question 4 required it to ask whether the Court’s interpretation of the tax questions resulted in adverse-impact discrimination contrary to s. 15 of the Charter. In the event that the result was indeed discriminatory, question 5 required the Court to ask whether the equality violation could nonetheless be justified under s. 1 of the Charter. Would the Court be constrained in answering either of these two questions by the weight of its own jurisprudence? In a comment on the Federal Court of Appeal’s decision in the Symes case, Audrey Macklin concluded that the equality problem confronting the Supreme Court was doctrinally and politically troubling.9 On the doctrinal front, the Symes case brought with it a mess of real-world complexities. One of these involved the fact that the discrimination identified was being suffered by only a subgroup of the category women, in this case, businesswoman. One would not expect this fact to pose a stumbling block. The Court had been developing an equality jurisprudence that had addressed similar issues, though in slightly different contexts.10 In those contexts, the Court found that an equality claim could be made out even where the discrimination suffered was experienced only by a subset of women. Further, as I pointed out in Chapter 3, there was no requirement of government intention to discriminate. It would be sufficient if Symes could show that the government legislation (or the Court’s interpretation of that legislation) had an adverse impact on a subgroup of women. The case was marked by difficult complexities and involved a troubling intersection of power and wound at the same site as the intersection of gender and class. Recall that the courts had widely divergent views as to whether or not Symes was privileged or disadvantaged. Macklin suggested that diverging views depended on the “different glasses” that one wore:

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When the trial judge looked at her, he saw a business women standing next to a business man. When the judges of the Court of Appeal looked at her, they saw a self-employed, professional woman standing next to a salaried woman. In the former scenario, Symes was disadvantaged by her sex contrary to section 15 and deserved to have her business expenses treated the same as a businessman’s. In the latter, she was privileged by her status as a business woman to obtain greater benefits than those available to salaried women.11

The Supreme Court would have to provide a justification for its choice of lens through which to view Symes and, whichever pair it chose, would undoubtedly be open to criticism. Though the Court had been working hard to develop a sophisticated and contextual set of equality tools, it had not yet resolved many cases where the resolution of one equality problem ran the risk of so obviously fostering the conditions for the creation of a new problem of inequality. The equality problem squarely raised another complex issue for equality theory: the problem of gender neutrality. How was the Court to theorize the relationship of gender, childcare, and parenthood? If childcare imposed differential burdens, were those burdens carried by (genderspecific) “women” or by (gender-neutral) “parents”? Much of the Court’s jurisprudence on equality had emerged in contexts that sometimes involved biological difference. But while pregnancy may be biologically determined, childcare is not. Men can and do raise children. In this case the Court would have to theorize the issue of the father/caregiver. Should the Court look at childcare burdens as attaching to the more neutral group of “parents” rather than to the gender-specific subgroup of “women?” Or would the use of gender neutrality in this context be sexist? Would a focus on parenthood tend to obscure the social reality that the burdens of caring for children fall disproportionately on mothers? However, if the Court linked childcare to women, would it be perpetuating the assumption that it was natural that women should carry these burdens? While these complexities would pose some real problems for the Court, there was little in the way of prior doctrine concerning equality that would function as a constraint. The complex facts suggested only that the Court would have to come to some position on the mix of power and wound, as well as on the relationship of sex to parenting. As Chief Justice Lamer said, the courts are prisoners of the case presented to them, and this case came before the Court with “real facts.” The Court would simply have to do its best to work through a complex equality problem, and would have at its assistance the very best of the Court’s own s. 15 equality jurisprudence. Recall that Macklin pointed out that the equality problem was not only

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doctrinally troubling, but also politically troubling. It is at the level of political complexity that one can identify issues that would exercise some constraining force on the Court. First, the Symes case was clearly part of a long political struggle over childcare. Was the question before the Court a legal one or was it more properly a political question? While there is no “political questions” doctrine in Canada that would immunize such questions from judicial review, the sense that the issue was primarily a political one might lead to a judicial reluctance to intervene in an activist fashion.12 Second, the Court was being asked to apply its equality tools to the Income Tax Act, a highly technical piece of social legislation. Further, it was being asked to apply an equality analysis to a provision that might be part of the normative or part of the tax expenditure side of the system. The Federal Court of Appeal had dealt with the issue by expressing the view that such legislation was simply immune from Charter review. For the Supreme Court to affirm such a conclusion would place a whole host of legislative enactments beyond the scope of judicial review. On the other hand, it was also clear that the judiciary might not wish to be called upon to continually rethink such legislation. A third issue was the question of economic costs. Even if the Court were to find an equality violation, what would be the political ramifications of action that would place serious economic burdens on the government? A perception that there might well be excessive economic implications might increase judicial pressures to defer. Finally, there would be the question of remedy. What kind of remedy could a court impose that would not risk making the situation worse instead of better? Some of these politically troubling questions would undoubtedly have an impact on individual judicial decisions to take a more or less activist stance with respect to the doctrinal equality problem. Such concerns bring one naturally to the fifth question confronting the Court: Could any potential equality violation be justified under s. 1 of the Charter? When determining whether or not a right or freedom has been violated, Canadian courts have generally steered away from relying on political considerations like those noted above. Instead, such questions arise after a court has already concluded that there has been a violation of a right or freedom. That is, these issues are relevant to the question of whether or not a particular violation of a protected right or freedom can be justified. There are several reasons for deferring consideration of these political questions. First, if these issues arose in the context of establishing a violation of a right or freedom, a higher burden of proof would be placed on the individual litigant, who is obviously without the resources available to the government. The litigant should not be required to prove that the government solution is unreasonable. Second, by addressing these issues at the stage of justification, the Court generally guarantees that it

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will have a more thorough record to assist it in the crafting of a remedy. It is generally the government that possesses the necessary information about factors including economic impacts, alternative resolutions, political history, and the objective of the legislation. Thus, assuming that a violation of the equality provision had been established, the Court would deal with the complexity of the problem and with any important political issues in the context of a s. 1 analysis. In such a context, the Court would have reference to a variety of information: governmental purposes and objectives, other alternatives, the impacts of different measures, etc. Indeed, it could craft quite sophisticated remedies. Clearly, any action by the Court would have some economic impact. In Schachter, however, the Court set out an entire regime of rules that would allow it to craft remedies that would fix the legislation in such a manner as to minimize the economic implications.13 Having set out some of the “politically and doctrinally troubling” dimensions of the case, I return to the question of constraint. The Court was indeed confronting a big constraint: the failure of the government to provide a s. 1 justification. The Big Constraint In Chapter 2 I noted that the Court, in the development of its Charter jurisprudence, had crafted a distinctive approach to problems of burden of proof. The burden of establishing a Charter violation – be it of equality, freedom of expression, or freedom of religion – lay with the person asserting the claim. The burden of proof, however, was set relatively low.14 The burden of establishing a s. 1 justification lay with the government. This was a significant burden and the government was required to adduce evidence on all the relevant points. The Court had been fairly rigorous with respect to governmental obligations under s. 1. It had established substantive law rules about the burden of proof in Charter cases and dictated that a Court could not craft a solution under s. 1 unless the government had successfully discharged its burden of showing the limitation to be justified. Where the government did not provide the necessary elements of a justification, the Court would be very reluctant to step in to help out. There are good reasons behind judicial reluctance to intervene directly in a s. 1 analysis. Suppose that a government failed to make a s. 1 argument. It may well be that the Court could provide an adequate justification on its own. However, to do so, it would have to step well beyond its role as an adjudicative body. If the Court were to propose its own reasons for upholding discriminatory legislation, there would be a definite blurring of the established boundaries between legislative and adjudicative branches of governance. The maintenance of the integrity of the boundary between

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legislative and judicial roles would require that courts not be seen as doing the government’s work. In light of the constraining weight of the Court’s own developed Charter jurisprudence, both the majority and dissenting judges were faced with a rather large problem: the government in the Symes case did not make a complete s. 1 argument. This is not to say that the government was completely silent. It did refer to Hansard Reports showing governmental discussion of the issue of childcare, as well as the reports of its own Task Force on Childcare. This information at best might have served to establish that the government had an interest in thinking about childcare. However, the government provided no evidence linking this interest to a narrow interpretation of s. 63, nor was there evidence showing that the discrimination was required in order to meet another pressing social issue, nor that the government’s approach to childcare was designed to minimally interfere with a protected right. The information provided by the government was clearly inadequate to meet the demands of the quite stringent Oakes test. One might argue that, despite the absence of evidence, the Court could have tried to fill in the gaps in the government’s argument. In fact, this is exactly what the Federal Court of Appeal suggested, declaring that even if any discrimination could be shown, it could surely be justified under s. 1. The Intervener Attorney General of Quebec also declared that the legislation could be justified under s. 1. These assertions miss the point. The burden of establishing a s. 1 justification is on the government and the government did not provide the kinds of evidence expected in a s. 1 argument. To fill in the very extensive blanks, the Court would have had to make findings that were not “common-sense,” but which were in fact contested by the parties. Surely this option was not really available. The Court was stuck with the record before it – a record with a truly inadequate s. 1 argument. While the Court of Appeal avoided addressing the problem of the government’s failure to meet its burden of proof, it is clear that the Supreme Court was aware of the problem. Recall that in the majority judgment, Iacobucci expresses his irritation with the lack of adequate s. 1 argument.15 Because the government failed to argue s. 1, the Court was dealing with additional constraints. Return again to Figure 1. In order for the government to win the case, it had to be successful on at least one of the tax questions and then be successful on either Charter question 4 or 5. In order for Symes to win, she had to win on all three tax questions or lose any of those three tax questions, but then win on both of the two Charter questions. Since the government had not met its burden under s. 1 (question 5), the Charter issue would be totally resolved by the answer to the equality

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question (question 4). Assuming that Symes could meet her burden under question 4, the possibilities at question 5 were strongly limited. The only way the government could win would be for the Court to eviscerate its approach to s. 1 and change the rules of the game, or put its own legitimacy into issue by explicitly doing the government’s work for it. Put bluntly, at this point in the logical structure, there was not a great deal of choice open to the Court. The question “Can the adverse effects of this legislation be justified under s. 1?” could be answered only with a simple and unequivocal “no.” But the government’s failure to argue s. 1 did not simply limit the possibilities for a resolution under s. 1. This failure also reaches back past question 5 to question 4, leaving the Court with a “factual vacuum” in which to explore the complex equality problem. The Court was thus facing constraints not only on the question of justification but on the question of discrimination itself. Recall that the traditional approach to equality is to set a low threshold for the identification of discrimination at the first stage of analysis. The difficult analysis is meant to take place under s. 1 where the government (which generally has more resources to rely on than the individual complainant) is to have provided the Court with a significant record of objectives, research, studies, and statistics. Because the Court will have access to this more detailed record in assessing justification under s. 1, it can afford to set a low threshold of proof for the individual asserting that a Charter right has been violated. However, in this case, the absence of a s. 1 argument left the Court hamstrung – it had insufficient argument about the complex dimensions of the equality problem and a limited palette of alternatives. The Court had already held that complex remedial options set out in the Schachter case were only available where the government had successfully established at least a portion of its justification argument.16 The government here had failed to make the arguments. Suppose a judge believed that the narrow interpretation of the Income Tax Act did have a discriminatory impact, but also believed that such discrimination was far too complex to be resolved by judicial fiat. Suppose a judge feared that the resulting tax loophole would increase inequality between rich and poor, reducing tax revenues available for social programs and redistribution. Such a judge might see an inequality in the current situation but believe it to be the height of judicial irresponsibility to intervene without having had full argument about the potential impact of its interpretation. Deprived of the tools available under s. 1, the only way to uphold the legislation would be to conclude that the legislation had no discriminatory adverse impact at all. If a judge were to resolve the problem in this fashion, he or she would have to find some way of dealing with the mass of evidence in the record. Having worked for many years to craft an

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expansive approach to equality issues, there are many reasons why a judge would not want to narrow the approach to equality issues, particularly where the problem is partly a result of the government’s failure to provide a s. 1 argument. Even for a judge who was persuaded that the current jurisprudence supported Symes’s tax claim, the case would remain problematic as a tool for the development of equality jurisprudence. The case raised very complex questions of equality and it came to the Court without a s. 1 analysis. In the absence of a solid factual matrix, there would be the risk that the resolution of the case on Charter grounds might result in a step backwards rather than a step forwards. Even someone supporting Symes might argue that the case offered only difficulties for the expansion of Charter principles. The Charter issues actually could be avoided altogether, but only if one resolved the matter on the basis of statutory interpretation. Returning to the Judgments In hearing the Symes case, the Court was indeed facing two very significant constraining forces: a politically and doctrinally complex equality problem and the absence of a s. 1 argument from the government. In this context, the dissenters produce a narrowly focused judgment, restricting their holdings to the tax issues. The dissenters conclude that childcare is not exclusively personal, that a childcare expense might be made for the purposes of earning income from business, and that the limited childcare deduction in s. 63 did not preclude deductibility of childcare as a business expense: the trial judge was thus correct to conclude that Symes could deduct her childcare expenses as a business expense. A solution having been reached on the tax questions, the dissent finds it unnecessary to make any determinations on the equality question, thus avoiding the potential pitfall of the complex equality problem, as well as the fallout of the government failure to provide a context for a s. 1 analysis. The majority holding is even more narrow, making only two binding determinations: first, s. 63 of the Income Tax Act is a complete code for the tax treatment of childcare expenses; second, Symes has failed to provide evidence that women carry a disproportionate burden of childcare expenses. One must appreciate the elegance of the majority’s solution. Dealing with the very difficult tax questions, Justice Iacobucci suggests that the traditional exclusions of women and children from business are problematic and that it may be time to de-centre the traditional notion that childcare is personal. However, even if these expenses could be classified as business expenses, he finds that Parliament has expressed the intention to treat all childcare expenses exclusively within s. 63. Childcare expenses are excluded as business deductions, not because the Court believes them to be intrinsically personal, nor because the Court sees them

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as unrelated to business, but because Parliament intends these expenses to be allowed only within s. 63. The majority uses s. 63 to neatly finesse the difficulties raised by the first two tax questions. It also uses s. 63 to finesse the difficult Charter questions. Rather than asking about the impact of the tax provisions as a whole, the majority restricts its analysis to the impact of s. 63. Since s. 63 concerns monetary payments for childcare, discrimination can be shown only through evidence that women disproportionately pay childcare expenses. Symes has established that women carry disproportionate social burdens but has failed to provide evidence showing that women also carry disproportionate economic burdens. The majority finds only that the evidential record in the case before them is wanting: there is a simple lack of evidence. In both the dissent and the majority, the judges seek solutions in a context where they are subject to some very specific legally and politically complex constraints. In both cases the judges find solutions that allow them to avoid dealing directly with the very difficult Charter questions before them. In both cases these solutions are dependent on a more narrowly legalistic and technical approach to statutory interpretation than is commonly used and, in both cases, s. 63 is the place where the action happens. As a matter of legal analysis, it is arguable that the dissent interpretation of s. 63 is the better one. However, whether a reader supported or opposed Symes’s claim, one cannot understand the importance given s. 63 without a clear understanding of the constraints imposed on both majority and dissent by the complex equality problem, and the absence of a s. 1 argument. It is interesting that, when the judges speak of themselves as constrained, they do so in ways that tend to misidentify the most important of the constraints, focusing not on the complex equality problem or the absence of government justification but on the text of the Income Tax Act, or the inferences to be drawn from the evidence provided by Symes. For example, Justice Iacobucci declares: “My analysis of the Income Tax Act has ineluctably led me to conclude that the Act does not permit a business expense deduction in respect of child care as part of its s. 9 profit calculation, but instead limits the child care deduction in accordance with s. 63.”17 It is the word “ineluctably” that catches my attention here. While I have argued that there are limits to a court’s powers, it would be difficult to maintain that the text of s. 63 was an ineluctable force that limited alternative interpretations. Certainly, the dissent did not find this conclusion ineluctable. The same assessment can be made of similar language used in the dissent. In her reasons, Justice L’Heureux-Dubé challenges the majority’s determination that proof that women pay social costs is not proof that women pay childcare expenses. She argues that such an

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inference is “inescapable.” Again, such an inference is not inescapable for the majority. This judicial use of the language of “ineluctability” and “inescapability” has the effect of drawing attention to constraints, while simultaneously drawing attention away from constraints. The constraints identified by both the majority and dissenting judges – the text of the Income Tax Act and inferences to be drawn from evidence – are far less powerful than the constraints that go unnamed. For the most part, little mention is made in either judgment of how the complex equality problem and absence of a s. 1 argument posed nearly crippling obstacles for the Court. Indeed, there is nothing ineluctable about placing s. 63 (rather than the businessdeduction provisions as a whole) at the centre of the Charter argument. Here, the majority made a choice that might have been based on considerations of the extra-legal constraints involved. Indeed, one might conclude that it was Justice Iacobucci’s analysis of the structural and strategic limitations on the Court that led him “ineluctably” to choose s. 63 as the linchpin of his reasons. Confronted with both a majority and a dissent who avoid some of the crucial issues before them, one may be tempted to ask why the Court bothered to grant leave to appeal in the first place. If the issues were too complex and the facts troublesome, perhaps the Court should have denied leave and waited for a better case. However, such a choice was not really open to it given the troubling judgment of Justice Décary at the Court of Appeal. He had said that the application of equality principles to issues like childcare expenses “trivialized” the Charter and suggested that economic and social legislation was immune to Charter review. Even if the Supreme Court did not have a good solution for the facts in the case, it needed to intervene in order to take care of damage at the Court of Appeal level. A solution of some sort had to be crafted, despite the fact that the Court was operating in the face of some significant constraints. In this context, even if one were dissatisfied with the failure of the Court to deal with the equality problem, it would be hard not to be influenced by echoes of the old adage, “If you can’t say something nice, don’t say anything at all.” Given these complexities, it is not clear that the Court had a good answer. Perhaps, at the end of the day, discretion was the better part of valour. In this chapter, I have argued that judges have significant flexibility and power when dealing with matters of legal interpretation, but that there are also a number of legal and social forces that constrain courts and give shape to legal judgments. These constraints leave a court with several ways of arriving at a judgment, ways that are consistent with the shape of the legal field. In examining any given judgment, it is useful to consider the

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way judges are influenced by the mix of power and wound that characterizes not only the litigants before them but the court itself. In the next chapter, putting aside the question “Was the majority right or wrong?” as well as questions about the actual constraints confronting the courts, I explore the language used in the process of getting to that conclusion. My interest is primarily in the language and symbols of law and the ways that the Court mobilized the discourse of choice and constraint.

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6 Power, Constraint, and the Rhetoric of Choice To what extent does it matter that the question of having children is a matter of choice? The woman in the workforce has a choice. – Justice Major, Symes v. Canada,1 Power is tolerable only on condition that it mask a substantial part of itself. Its success is proportional to its ability to hide its own mechanisms. – Michel Foucault, The History of Sexuality, Volume 1: An Introduction (1978)2

The Rhetoric Much contemporary legal thought reflects a profound commitment to a conception of the self as relatively autonomous and self-directing.3 Thus, the rhetoric of “choice” is of central symbolic value in Western liberal societies. Tied so intimately to a conception of the individual as autonomous and self-directing, “choice” has great power as a discourse of liberation, freedom, and empowerment. These symbolic dimensions of choice and agency are explicitly mobilized, for example, in cases concerning abortion and reproductive rights. Similarly, advertisers attempt to tap into these positive symbolic dimensions in advertising campaigns that focus on a plethora of consumer choices.4 But since agency connotes accountability, choice also has great power as a discourse of responsibility and blame. Indeed, the rhetoric of choice has provided a relatively simple decision-making model for those called upon to resolve claims about individual behaviour and responsibility. The model focuses on identifying power, the point being “to fix responsibility for consequences held to flow from the action, or inaction of certain specifiable agents.”5 The rhetoric of choice provides a simple model for locating power and fixing responsibility for consequences. If a given situation is the result of a person’s own choosing, it would be inappropriate to intervene: the person suffering made choices – made their own bed, so to speak. If, on the other hand, the situation is the result of force or coercion, intervention may well be called for: where power obviously lies in the hands of a second party, the first person cannot be said to have meaningfully chosen. The appearance of choice in such cases may be simply the result of “an offer you can’t refuse.” The central issue is to determine where power lies by identifying who made the relevant choices.

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Certainly, this model can prove useful when one needs to determine responsibility for action where there is fairly widespread consensus about the meaning of behaviour. However, there is not always such consensus. As shown in Chapter 2, Canadian society has long been engaged in negotiations about the realm where the (so-called private) world of family and kinship relations intersects with the (so-called public) world of work. The issue is not just what social meaning will be given to a behaviour within this realm, but also what the legal implications of that behaviour are. The law is not a mere bystander to these social debates. In using the rhetoric of choice, the Court is both assigning responsibility and participating in the construction of meaning. Martha Minow makes the following argument: “A recent threat to individual freedoms and human rights, perhaps ironically, stems from a tendency among many judges and officials to assert that someone has a choice. While laudable for the respect it seems to accord individuals, the legal rhetoric of choice – including discussions of voluntariness – is too often used to assign responsibility to someone who had little power to choose, or to infer a waiver of right by someone caught in severe constraints.”6 She goes on to critique the idea that choice is either all-present, or allabsent, arguing in favour of a conception that locates human choices within varying degrees of constraints. Unfortunately, as she notes, since the goal is to assess responsibility for consequences, there is a tendency for the rhetoric to be deployed in an “all or nothing” manner: either one chooses or one is forced. Such deployments erase the complexity of constraint and the context in which choosing occurs. The simplifying tendencies of the rhetoric posed a real problem for Symes. The difficulties are evident when one returns to the trial transcript. Symes was attempting to describe the complex web of power and constraint woven into the gendered experiences of child-rearing and work, but the model did not seem able to capture the completeness of the experience. Symes stated that she carried the burden of responsibility for the care of her children. John Power argued in response that the government had statutorily decreed that childcare responsibilities were to be shared equally between parents: if Symes was carrying the heavier burden, it could only be because she had chosen to do so. There was thus no reason for the Court to intervene or shift the costs of this burden. In his cross-examination, Power returned time and time again to the question of choice: Who made that decision? ... Who said that it was your responsibility? ... Was that your choice that [the burden] rest with you? ... Did somebody force that upon you? ... [It was] at your own choice ... Who imposed that burden upon you? ... Who decided that? ... And you accepted that course of events?7

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Symes agreed that the burden of responsibility rested on her, but repeatedly rejected Power’s assertions that this was at her own choice. She refused to use the notion of choice to explain her situation. Instead, she turned attention back to the expert evidence about the preconditions of choice and the circumstances under which working mothers exercised their choices. But Power’s cross-examination remained tightly focused on Symes and her ability to make a choice. Force would negate choice. Power did ask specifically whether the Minister of National Revenue had forced her to carry the burden of childcare in her family.8 The question, on the surface, could only be answered in the negative: clearly, the minister had not physically forced Symes to carry the burden. However, Power did not foreclose the possibility that Symes was coerced, that she was forced to carry the burden of childcare. In leaving room for this possibility, he turned his attentions to her husband: You mean your husband was not willing to share with you in that responsibility? ... You are saying that your husband does not share in the duties of bringing up children? ... Do you have any reason to give to the Court why he did not pay part, half or all [of the expenses]? ... Are you saying under oath today that your husband would have refused or did refuse to pay any of those expenditures? ... Did your husband say he would not share? ... Did anybody impose that decision on you and your husband except you and your husband?9

Under this line of questioning, Power utilized the rhetoric to suggest that if Symes was forced, she was forced by her husband. In effect, Power was suggesting that the Court accept the following train of thought: Symes did not choose, but was forced to carry the burden, therefore she is entitled to redress. And, following from that finding, that redress should be directed not against the government, but against the husband who forced her. The model suggests that Symes could choose one of two alternatives: she could accept that the burden she carried was carried at her own choosing or she could name her husband as the source of her oppression. Symes resisted this simplification but the model of choice used by Power made it difficult for her to illuminate the reality she was trying to describe. In response to Power’s question, “Did somebody force [the burden of childcare] upon you?,” Symes replied that she was required to carry the burden by “circumstances.”10 Circumstances. She had some difficulty in putting her finger on precisely what those circumstances were, saying simply, “Perhaps that I was willing to do it.” I think she gets very close to the problem when she says, “It’s difficult to answer because it is a matter of how families operate.” Here, she touches on the deep, interwoven social structures that have a shaping influence on the matter of choice and are in

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the process of flux and transformation. In her reply, there is an apparent honest struggle with her own unexplored discomfort with “circumstances.” She seems at least to be aware of the difficulty that the model of choice poses for her, even if she is not able to provide a coherent path through it. This example highlights how the rhetoric of choice is often deployed as a binary decision-making model: either one chooses or one is forced. The binary model seems to allow only for total choice or its total absence. Such dichotomization draws attention away from the complexity of the middle ground between force and freedom. When articulated in this fashion, the rhetoric makes it hard to get at processes that result in decisions that are neither chosen nor visibly forced. Used in this fashion, the rhetoric also deflects attention away from claims that involve challenges to the meaning of the choice itself, placing the focus rather on issues of voluntariness. I opened this section with a quote by Foucault that suggests that power is at its most successful when it is best able to hide its own mechanisms. I suggest that the simplicity of the model of choice does in fact obscure the role played by those using the model in constructing, legitimizing, and maintaining the reigning order. The model does this in at least two ways: first, it does so by privatizing the specific problems before it. To return to the terminology of C. Wright Mills, it does so by characterizing the problems as (private) “troubles” rather than as (public) “issues.” Second, the model deflects attention from how power can shape the outcome of choice, all the while asserting that the outcome is simply the result of choices made by the chooser.11 The rhetoric does this most powerfully when it suggests that “choice” is a neutral arbiter of responsibility. But “choice” is rarely so neutral. Indeed, Williams notes that the language of choice is often employed in ways that presume and thereby reinforce the current and unequal distribution of paid work and family responsibilities.12 The attribution of responsibility based on choice depends also on assumptions about gender, class, and race. In discussions that purport to be grounded in questions of individual “choice,” we can see the sediment of struggles over meaning and the distribution of power in political, social, economic, and legal realms. Deployments of such rhetoric, which proceed as if “choice” were neutral, suggest that it is not necessary to turn attention to differentially gendered, raced, and classed dimensions of meaning and experience. The social divisions of labour seem to vanish in an equation that focuses on a woman’s “choice” to have children. It is this vanishing that leads Williams to argue that the rhetoric of choice is essential to the construction of a gender system that leaves women with a different and less desirable range of choices than those available for men. Those using the rhetoric are able to deflect challenges to the disempowerment of women by invoking choice, by drawing attention away from the constraints within which women’s choices occur.13

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For an example of this, I return to the quote from Justice Major, which opened this section: MAJOR, J.:

Let me ask you, to what extent does it matter that the question of having children is a matter of choice? The woman in the work force has a choice. Does it make the society have an obligation to encourage her to make the choice to have children, compared to her counterpart who wants a career without children? MR. CAMP: No. I don’t think society encourages one way or another, but society should not disadvantage her from doing so. MAJOR, J.: No, but who are they disadvantaging? Not all women. It is women who elect to have children. MR. CAMP: Yes. MAJOR, J.: Isn’t that a matter of their choice, knowing that having a child is going to bear some costs in time and money? ... Surely there is an element of personal choice in a decision to have children. It serves two purposes: one may be the future that you describe, the other is whatever comfort may arise out of having children. My simple question is: To what extent does the element of choice play any part in your submission?14

The first thing to note is that Justice Major’s response rests on several presumptions about women, children, and work. First, there is the presumption that women can choose to have children or not: “having children is a matter of choice.” The conditions under which women exercise their reproductive control, the history of restrictions on abortion, these all vanish in an equation that asserts simply that having children is a matter of choice.15 Second, there is the presumption that women indeed are responsible for childcare. Justice Major seems to accept that a child will impose costs on a woman. While he does not say this explicitly, it is significant that men are absent from his discussion. J.J. Camp’s comment about the inequality suffered by women is deflected by Major with the response that “not all women” are disadvantaged. The only women who suffer disadvantage are those “who elect to have children.” There may be a burden on women but it is a burden that they have chosen. Questions about “the future of our society” are set to the side in the interests of the more immediate question of “individual choice.” Mr. Justice Major, perhaps drawing on discourses from economic theory, appears to subsume questions of disadvantage in a cost-benefit model. That is, the woman who makes the choice to have children does so “knowing that having a child is going to bear some costs in time and

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money.” On the other side of the equation is “whatever comfort may arise out of having children.” Thus, we can assume that women who choose to have children have done so rationally, having weighed the costs and benefits. Starting from this perspective, Mr. Justice Major views “societal intervention” as problematic – as interfering with the preconditions of choice. To allow a woman to deduct the cost of childcare would be unfair. It would be like providing an unearned benefit to these women, a benefit not available to other women in the workforce who want “a career without children.” To give this benefit would be “to encourage her to make the choice to have children.” Even the reference to women who want “a career without children” obscures as much as it reveals. Certainly there are women who want a career without children. Just as there are certainly men who want a career without children. But this is beside the point. To compare those who want children and those who do not deflects attention from the differential costs that may influence these decisions. The evidence in front of the Court indicated that women with children were less professionally mobile than their female counterparts without children.16 At the same time, it appeared that having children had no impact on professional mobility for men. That is, the constraints on men who want to have children are significantly different from those on women who want to have children. But, in reducing the question to one of “want” or “desire” or “choice,” questions of gendered constraints disappear. The backgrounding of gendered constraints on choice has the effect of subtly reenforcing an age-old choice for women: to be constructed as “selfish” or “selfless.” Questions about the unequal gender-based costs of being responsible for children, about the societal interest in caring for children, about the disadvantages attendant on being a parent, are reduced to the question of whether or not women choose to have children – whether they choose to be selfish or selfless. It is significant that men are absent from Mr. Justice Major’s question. It is only the career woman who is required to make a choice. Her male equivalent is excused. It seems unnecessary to look at his choices or to hold him responsible in this context. Justice Major uses the rhetoric of choice as a tool of decision making and does so in ways that import elements of other gendered social, political, religious, and economic discourses. Those using the rhetoric of choice in this fashion participate in the construction of gender itself, relying on and reproducing gender by adverting to differing expectations and responsibilities for men and women – for fathers and mothers. The gendered presumptions that slide in through this example are further shaped by additional presumptions about marital status, socioeconomic class, and sexual orientation. The gendered division of labour and responsibility presumed by the response is one possible only

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for some kinds of people in specific contexts. But the need for express contextual specificity is made invisible by the seemingly universalizing rhetoric of choice. The rhetoric’s simplifying logic participates in the practice of gendering, sustaining very specific constructions of gender while at the same time appearing to rely on neutral and universal principles of choice. In her response to Justice Major’s question, Mary Eberts tries to return again to difficulties with reliance on the traditional model of choice. She uses the rhetoric of choice as an entry point for an explicit challenge to the social construction of gender. She makes a clear distinction between the biological reality that women bear children and the social reality that has made women responsible for the care of children after they are born. She challenges the statutory prescription of equality, drawing the Court’s attention back to the factual reality of inequality. She also draws attention to the forces that constrain and shape women’s “choices,” emphasizing that the structure of the labour market makes it very costly for women with childcare responsibilities to participate. She also points out that men are not required to make the choice between having children and participating in the labour market. Her comments seek to displace a rhetoric of choice that is blind to these constraints and substitute one that accounts for the ways that larger social structures interact to restrict and channel choices. Using terms like “false choice,” “cruel choice,” and “sombre choice,” she tries to de-centre an approach to choice that decontextually takes statutory prescriptions of equality of choice to be factual descriptions of reality. This deployment seeks to draw the Court’s attention to the complexities posed by talk about women and choice, illustrating the ways that a focus on the question “Didn’t she choose?” tends to take attention away from the constraints shaping women’s choices. Her use of the rhetoric seeks to prevent decision making based on unarticulated but nonetheless effectual assumptions. Here, talk about choice occurs in a context where the preconditions of choice are themselves challenged. In her reply, she seeks to shift attention away from individual choice and back towards structural inequities that leave men and women each to choose from different and, in the case of women, more limited palettes of possibility. The Supreme Court Majority and “Choice” Against this background discussion of the rhetoric of choice, I return to the Supreme Court’s judgment. In the earlier discussion, I focused on the binary possibilities at the heart of this rhetoric of responsibility: choice or no choice. However, the model does offer a third option: deflection. The deflection option allows the decision maker to avoid reaching a conclusion on the issue of who holds power. Here the Court concludes that the power lies beyond its jurisdiction, saying in effect: “You had no choice and

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you may not deserve the consequences, but we are helpless to intervene or put things right because it is outside our power to do so.” If the first option is the archetypal “you made your own bed,” and the second is “you were forced,” then the third could be called “not my department,” allowing the decision maker to present itself as the victim of constraint. Two examples of this kind of deployment are evident. The first example involves the Court’s conclusions on the tax issue, the second, its conclusions on the discrimination issue. The Tax Issue: The Meaning of Choice as Moot Much of the debate around Symes concerned the legal meaning of certain choices. According to Justice Major, “The woman in the workforce has a choice.” But even if the woman in the workforce does have a choice, what might her choice mean? What does it mean to choose to have children? What does it mean for a woman to choose employment in the paid workforce? What does it mean to expend money on childcare expenses? Is childcare a private choice or a choice with a public/business dimension? Justice Iacobucci spent a number of pages articulating and reviewing the complex problems of meaning that were raised by the case. Amongst these problems was the question raised by Justice Major: To what extent does it matter that a woman chose to have children? The majority’s answer shows it to have accepted some of Eberts’s arguments. It avoids drawing the conclusion that this choice is entirely personal: “Pregnancy and childbirth decisions are associated with a host of competing ethical, legal, religious and socioeconomic influences, and to conclude that the decision to have children should – in tax terms – be characterized as an entirely personal choice, is to ignore these influences altogether.”17 But what meaning, then, should be given to childcare? Was it a personal expense or could it be an expense incurred for the purposes of earning income from a business? Reflecting on the expert evidence about the increase of mothers in the workforce, Justice Iacobucci commented that “it might be correct to assert that the changing composition of the business class and changing social structure demand a reconceptualization.”18 This comment suggests that the Court has seen that the current tax act has been built in part on a division of public and private life that has conceptualized all things related to children as falling within the private. However, having adverted to this problem, the Court avoids an explicit consideration of the exclusionary and harmful gendered presumptions built into the law’s treatment of business expenses by using the rhetoric of choice in its third formulation: “not my department.” The Court agrees that it might be time to reconceptualize the gendered relationship between the business class and the changing social structure but finds that the task

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is just not necessary. The language of s. 63 is sufficiently clear: the Court is precluded from intervening. Parliament has made clear its intention that childcare expenses not be addressed through the business provision sections: “The Act intends to address childcare expenses, and does so in fact, entirely within s. 63. It is not necessary for me to decide whether, in the absence of s. 63, ss. 9, 18(1)(a) and (h) are capable of comprehending a business expense deduction for child care expenses.”19 Justice Iacobucci finds that the legislature has spoken clearly: childcare expenses can only be deducted pursuant to the limited s. 63 childcare deduction. Justice Iacobucci uses the rhetoric of choice to draw tightly circumscribed limits on the ability of the Court to intervene. He makes use of the classic liberal solution, one that is mandated by liberalism’s strict separation of spheres: the public from the private, the legal from the social, the judicial from the legislative. Because the legislature has spoken clearly, the Court can do nothing. The ultimate power holder is the government, not the Court. Symes must take her grievances to her elected representatives, not to the courts. This rhetoric of deflection is particularly interesting because it enables the majority to evade any responsibility for intervening or failing to intervene, while at the same time enabling them to appear supportive. In short: “We have no choice. We see your pain but are powerless to help you.” Indeed, the Court is so powerless in the face of legislative clarity that it becomes simply irrelevant to consider the gendered content of business expenses. As Justice Iacobucci put it (a quote that has so captured my imagination): “My analysis of the Income Tax Act has ineluctably led me to conclude that the Act does not permit a business expense deduction in respect of childcare as part of its s. 9 profit calculation, but instead limits the childcare deduction in accordance with s. 63.”20 The use of the word “ineluctable” drives home the point. The Court is not simply drawing a conclusion based on interpretive preference or choice. There is no choice to be made. The analysis is “ineluctable” and has rendered moot all other questions about meaning. It is simply unnecessary for the Court to reconceptualize its categories of business and business expenses. Questions about the meaning of childcare expenses were the centre of the case. But, using the rhetoric of choice, the Court manages to avoid addressing the challenges made to the legal meaning given to childcare expenses. Comments about the lack of necessity here transform central questions into matter for speculation. By focusing on the power of the government to craft a complete code for childcare, the Court is participating in legitimating the current regime of meaning by leaving definitions of public and private unchallenged turning, thus issues of meaning into issues of mootness.

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The Discrimination Issue: Invoking the Great Divide In the Court’s discussion of the Charter issue, the rhetoric of deflection is mobilized a second time and mobilized in a way that reinforces the public/private divide. Symes had the burden of establishing that the government’s interpretation of s. 63 of the Income Tax Act resulted in adverse-impact discrimination. To meet this burden she provided evidence concerning the disproportionate burdens carried by women with children. After reviewing all the evidence before the Court, Justice Iacobucci said, “I have no doubt that women disproportionately incur the social costs of child care.”21 Indeed, he concludes that it was not even necessary for Symes to provide the evidence that she did: the Court would have been willing to take judicial notice that women bear these costs. However, any suggestion that the Court is going down a progressive path is immediately dispelled. The burden of childcare, according to Justice Iacobucci, has a social and a legal dimension. The Court can act only where discrimination involves the legal dimension. Parents are viewed as having a joint legal responsibility to care for their children, but one must be careful to correctly identify the content of this legal responsibility. What then is the content of this joint legal responsibility? The responsibility to pay childcare costs. The law, we are told, “will impose the legal duty to share the burden of child care expenses, if not necessarily a duty to share the child care burden itself.”22 What does that mean for Symes? It means that her evidence has not proven a thing: “It is not sufficient for the appellant to show that women disproportionately bear the burden of child care in society. Rather, she must show that women disproportionately pay child care expenses.”23 Symes produced the wrong kind of evidence. She established a disproportionate social burden but this social burden does not constitute adverseeffect discrimination under the Charter. She needed to show the existence of a legal burden. Childcare expenses would be “legal,” while childcare burdens are simply “social.” In Justice Iacobucci’s words, “We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision ... social costs, although very real, exist outside of the Income Tax Act.”24 The Court hastily acknowledges the inequity of these social costs, costs that are disproportionately borne by women. However, under the rhetoric of choice bolstered by the public/private divide, these costs originate in society, not in law. The Court can exercise its power only in the realm of the legal; inequities in the social realm, however abhorrent, cannot be resolved by the courts. Symes, Justice Iacobucci concludes, has only shown the existence of a social burden. The Court can do nothing about this kind of burden. It can see the problem, and grieve, but it cannot act. The force

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or compulsion is caused by society, and this is outside the jurisdiction of the Court. This deployment of the rhetoric of choice is interesting. Certainly there are boundaries to the jurisdiction of the Court. However, the invocation of the boundaries here raises some interesting questions. Justice Iacobucci too easily draws the line between those matters that are ones of joint legal responsibility and those matters that fall in the realm of the social. He does not provide an explanation of the division but merely invokes it – as if the line between the social and legal dimensions of the “childcare burden” were self-evident. The public/private (or legal/social) divide is invoked as if its meaning were stable, which is of great interest precisely because the meaning and location of this divide was directly at issue in the case. Nonetheless, the rhetoric of choice is deployed in a manner that glosses over the fact that the line is highly contested. Further, the rhetoric portrays the Court as simply constrained by the very inevitability of the legal/social divide. While I have already argued that the Court was subject to several constraining forces, it may be a bit disingenuous for the Court to suggest that this specific conception of the legal/social divide is one of those constraints. The Court does play a large role in the articulation of this very boundary. It is the Court that determines the content of joint legal responsibility. It is the Court that determines what dimensions of that childcare burden will be seen as legal and what dimensions will not. It is the Court that draws the line between the social and the legal in a manner that places the majority of the childcare burden squarely on the side of the social. It is the Court that determines that these social burdens lie beyond its own power. In drawing the line between social and legal, the Court also invokes the more traditional rhetoric of choice – a rhetoric that surfaced time and time again in Power’s cross-examination of Symes. The evidence in the Symes case was not simply evidence of social burdens. Symes also produced evidence showing that she carried the burden of childcare expenses, an expense characterized by the Supreme Court as “legal.” At this point, however, the “family decision” resurfaces. Justice Iacobucci notes that, though Symes did pay these expenses, she did so because of a “family decision,” a decision not mandated by law or public policy. The law, he notes, views parents as being jointly responsible for their children (or at least, jointly responsible for childcare expenses). Childcare expenses are to be shared as a matter of law. If Symes is carrying the entirety of those costs, it is the result of her own choice, not of the law. If she is carrying a heavier burden, it can only be because she chose to. Since she chose to bear those costs, she is responsible for them. There is no reason for the law to intervene in this dimension of choice. This disposes of the evidence concerning the legal

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burden. As to the social burden, well, the Court has already established that, in that realm, it is simply powerless. Deflecting Responsibility These two “we are powerless to help” arguments show how the rhetoric of choice can be deployed as a means of avoiding decision-making responsibility. Such deployments may reflect not so much a desire to reinforce existing distributions of power as a desire to avoid becoming explicitly embroiled in the conflict. The Court paints a picture of itself as a powerless external observer. The reality is that, in using the rhetoric of choice, the Court actively participates in the construction of gender. It does so by policing a very specific boundary between law and society. This traditional boundary has allocated many forms of gender disadvantage to the realm of the social, a realm where those disadvantaged by gender have fewer resources to back up their claims for justice. The Court acknowledges the gendered implications of the boundary but portrays itself as constrained by the boundary. Such a suggestion completely obscures the crucial role that the Court plays in constructing the boundary itself.25 The Court determines which dimensions of the childcare burden will be seen as legal and which dimensions will be written off as merely social. My argument here is not that the separation of legislative from judicial powers is unimportant, nor that the concept of public and private realms is completely fraudulent. My point is simply that the Court’s supposedly neutral practice of relying on the “not my department” branch of the rhetoric of choice is not so neutral. Through its deployment of the rhetoric of choice and its invocation of the public/private divide, the Court directly participates in the social construction of gender. Blame and Shame: Choice and Punishment I turn to a final way in which the rhetoric of choice is sometimes deployed: as a punitive rhetoric of blame and shame. In its classic formulation, the rhetoric focuses on determining whether or not someone made a choice. Where choice is present, the person is responsible for the consequences flowing from the choice. But a determination that a person made a choice and is thus responsible is not necessarily coupled with the language of shame, scorn, or derision. While the rhetoric of responsibility can be used in a relatively neutral fashion, it can also be coupled with a language that functions punitively: to discipline the person (and those who read the judgment) with language of shame and blame.26 I provide one example from the trial itself. The following interchange occurred when John Power was asserting that Symes had paid childcare costs at her own choice and Symes was asserting that it was less a matter of choice than of circumstances. In Power’s response to this challenge, the

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rhetoric of choice is deployed in a defensive counterstrike. Rather than engaging in a dialogue about “circumstances” and the gendered implications of the public/private divide, Power offers the following (rather scathing) response to Symes’s realistic admission of difficulty: Excuse me, Mrs. Symes, you’re a professionally trained lawyer ... You have indicated this morning the range of your professional experience as a litigator, etc. Are you suggesting to me that you had no choice but to bear with your income the raising of these children during the years in question – the child care expenditure – and that your husband had no responsibility for that? And did not share in it? And you accepted that course of events?27

Here, we see the rhetoric of choice deployed as a mechanism of shaming. Power suggests that a professionally trained litigator could not possibly have accepted a deal as lousy as the one she is describing. Her professional credentials are held up and found to be wanting. If she really were any good as a professional litigator, she should have been able to work out a better deal! There are many interesting dimensions to this shame attack. Note that the shaming response ties gender with class. Why is being a “professionally trained lawyer” relevant to the “choosing” of childcare burdens in the first place? Are we to understand that such bad choices would be understandable if they came from a woman who was not a lawyer? Also intriguing is Power’s implication that litigation models are appropriate in the context of an ongoing relationship between two parents with respect to their children. In directing attention to the negotiation between Symes and her husband, Power glosses over other participants, enforcing the presumption that childcare responsibilities are a private matter to be partitioned between only two parties: a husband and a wife. This deflects attention from Symes’s claim that the Canadian taxation system itself is implicated in the so-called private realm of family and children. It deflects attention from her assertion that tax provisions and practices help reinforce and police the gendered division of childcare labour and responsibility. It also uses shame as a tool. Symes is attacked personally, Power’s rhetoric suggesting that either she is a liar or a fool. In any event, she certainly can’t be the litigator she thinks she is or she would never have settled for such a ridiculous bargain. This disciplining form of language also places the responsibility squarely back on Symes. If she is suffering, it is her own fault and we needn’t feel sympathy. Her own behaviour has left her worthy of blame, scorn, and derision. There are similar examples of the rhetoric of shame and blame in the majority judgment. Recall that the majority disposed of the case primarily on the basis that the government had decreed s. 63 to be a complete code

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for childcare and that Symes had not provided evidence of discrimination. The Court was powerless to help. It could have stopped there. It did not. In its final comments, the majority goes on not only to portray itself as powerless but also to portray Symes as powerful – that is, as fully responsible for her own loss. The majority deploys the rhetoric of choice as a mechanism of blame and shame. In his final comments, Justice Iacobucci steps back from the “we are powerless to help you” stance, to assert that Symes had made bad tactical and strategic choices – choices that left her at least in part responsible for her own loss. Her errors, he states, had to do with her focus on businesswomen and the inadequacy of evidence she provided in support of her case. Symes, he continues, belongs to a particular subgroup of women – married women who are entrepreneurs – and the evidentiary focus was “skewed” in this direction.28 Stating that “her focus upon self-employed women to the exclusion of women employees [was] a very curious aspect of this case,” he suggests that Symes “thought it desirable to distance herself from employees in this case.”29 Justice Iacobucci concludes that an overly narrow focus on married businesswomen was just the wrong choice – a choice that left the Court with no evidence of discrimination. Symes lost because she made bad choices. According to the Court, she should have structured the case differently and introduced different kinds of evidence. Justice Iacobucci suggests a number of scenarios under which the Court’s ruling might have been different. Symes could have established the circumstances of single mothers. She could have focused on parents rather than just mothers. He chastises Symes, saying that her focus on gender “effectively ignored the relevance of a parental status distinction.”30 Further, in focusing exclusively on her own situation, Symes failed to consider the other kinds of hardships worked by s. 63. Not only did she neglect to consider “parental status” but also “business people in a loss position” and “farmers.”31 He calls her to task for failing to consider “low-income Canadians.”32 Further, in the context of his Charter discussion, he describes her arguments as having been presented in “curious isolation”: she had invited the Court to consider the Charter only with respect to self-employed women, suggesting a remedy could be granted without considering “the position of other women, other parents, or the government’s overall response to child care needs.” Justice Iacobucci calls this “instrumental” approach inappropriate.33 Put most plainly, Symes lost because she was overly focused on her own needs. She did not pay enough attention to the needs of others. One can’t help but agree that it would be good if all members of society attended to the needs of others. However, in courts of law, attention to the needs of others has rarely been a prerequisite for success, let alone an explanation for failure. As Madame Justice L’Heureux-Dubé comments in dissent:

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In Andrews, the Court did not look at the respondent and justify the infringement of his rights under s. 15 on the basis that, in all other aspects of his life, as a white male lawyer of British descent, such discrimination on the basis of citizenship was acceptable, since he was likely better off than most other persons in the disadvantaged group of non-Canadian citizens.34

As she notes, it has generally been sufficient for applicants to establish how they have been disadvantaged by a law or program. Thus, the comments by the majority might seem unusual. They are less unusual when one foregrounds the codes for female behaviour. One of the codes for women is to “be unselfish and of service.”35 That is, women are to care for others before caring for themselves. This code, some have argued, is indeed a prescription for female shame, setting standards that cannot possibly be met: “The Code prescribes doing for others, being responsible for others, acting in the interests of others. It’s as if the Goodness Code is societal leverage that shames women into being too responsible. Being too responsible becomes the dominant definition of being good.”36 It is useful to keep this code in mind when thinking about the language used by the majority. It spoke of skewed evidence, the exclusion of women employees, inappropriate instrumental approaches, the failure to consider single mothers, wage-earning women, fathers responsible for childcare, low-income Canadians, and even farmers. Such language resonates with the pulsing echo of the familiar indictment: selfish. The rhetoric of choice is used not merely as a means of allocating responsibility but also as a disciplining rhetoric of blame. Using this rhetoric of blame, the Court participates in the construction of gender by policing the boundaries of appropriate female behaviour. The Court condemns Symes for being selfish. It is of more than passing interest that the “disciplinary method,” if I may call it that, invokes the progressive discourses of disadvantage. That is, in its rhetoric of blame, the Court alludes to the intersection of class privilege and gender disadvantage that had left many feminists feeling ambivalent about the case. On one level, one is tempted to cheer that the majority adverts to feminist discussions of intersectionality. The majority seems to see that categories of disadvantage are complexly interrelated and to recognize the need for a contextual intersectional analysis. However, such optimism may be misplaced; the Court does not itself engage in such an analysis. It does not conclude, for example, that the current tax system must be revised because it gives businesspeople unfair advantages over their wage-earning counterparts. The attention to feminist discourses of class disadvantage is superficial at best. The Court’s language draws on these feminist discourses but not as a challenge to class-based disadvantage.

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Rather, the Court invokes “class” and the rhetoric of “choice” to police the gendered codes for female selflessness. Symes failed the codes. She should be made to feel her shame. Conclusion In this discussion, I have criticized the rhetoric of choice. I would like to make it clear, however, that I do not think that talk about choice is meaningless. On the contrary. Discussions of choice and agency are of great importance. My concern is that the rhetoric of choice does not always get used in ways that advance these discussions. The rhetoric of choice may fail us to the extent that its use deflects the focus from fundamental struggles over meaning (or even the social allocation of tax monies) to simpler and more superficial questions about responsibility and blame. It fails even more when this simplification obscures the raced, classed, and gendered presumptions that produce differential conditions governing choice and then functions in a punitive fashion, dispensing shame and blame. In the Symes case, one can see how this simplifying rhetorical process works. The case was threaded through with complex intersections of privilege and disadvantage. It engaged fundamental questions about the meaning of motherhood, work, and class. Controversy surrounding the case reflected the very important ongoing dialogues in feminist and other communities about the ways that privilege and disadvantage are constructed along intersecting dimensions of class, race, sexuality, and gender. But in the courtroom, the empowering rhetoric of choice was often used as a rhetoric of individualizing responsibility and blame. In its use of the rhetoric of choice, the majority left important questions about intersectionality and meaning unanswered. The simplifying tendency of the rhetoric of choice may be one of its chief attractions. It provides a relatively uncomplicated decision-making model. Explicit struggles about the social construction of meaning are reformulated as simple problems of responsibility that can be answered with the near binary of “choice,” “no choice,” or “not my department.” This model is always attractive. Choice has the advantage of producing resolutions that appear fairly consistent with the past and suggest stability and continuity. But the simplicity of this model can only be a panacea in a world where meaning is constantly being constructed. Further, it leaves unexplored the role of power in constructing social meaning. It is possible to agree that individuals make better, worse, or indifferent choices without absolving them from some responsibility for these decisions and, at the same time, focus on the ways that inequitable preconditions for choice are created and maintained. The rhetoric of choice tends to obscure the workings of power. Intentionally or not – and I suggest that

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this deployment is much more often the result of systemic blindness rather than an intentional plan of exploitation – those using the rhetoric participate in the (re)construction of social relations of power. The Court, while painting itself as the victim of constraint, simultaneously utilizes its power and participates in the construction of gender, and this at the intersection of power and wound.

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7 Multiple Solitudes: Intersectionality in the Nonexpert Public Response

In the previous two chapters I offered a reading of the Supreme Court’s judgment that focused on the intersection of choice and constraint confronting the Court itself. In the next two chapters I continue my exploration of the intersection of power and wound by focusing on public discussions of the Symes case. How was the case understood? Did people see Symes as in the right or wrong for having brought the case? What did they think of the Supreme Court judgment? And what reasons did people publicly give for their support or opposition? The reasons given for public support of or opposition to the case provide us with an opportunity to explore two specific problems. The first of these is an extension of the presentation in Chapter 4: the complexity of the relationship between social movements and law reform. In that chapter it was shown how discourses from various quarters were selectively taken up, modified, or rejected by the courts. This and the next chapter move in the opposite direction, showing how the judgment of the Supreme Court was selectively filtered and retranslated by various segments of the public. Just as the law accepted some social discourses as persuasive while rejecting others, the public accepted some elements of the legal discourse as persuasive while rejecting others. Of course, public criticism of a judgment is not sufficient to render that judgment inefficacious. Law has the coercive power to enforce its judgments despite public disagreement.1 However, the power of law is located not only in its ability to coerce but also in its ability to persuade. Indeed, the legitimacy of law’s coercive force depends in some measure on the ability of legal discourse to convince those who hear its pronouncements that those pronouncements are justified in the light of some social reality. As Gordon reminds us, “The power exerted by a legal regime consists less in the force that it can bring to bear against violators of its rules than in its capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want

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to live.”2 Gordon’s comments bring into focus the second of our two problems: the extent to which the public – be it nonexpert or expert – was persuaded by the Supreme Court judgment. In this chapter I am interested in those insights to be gained about the intersection of power and wound through a close investigation of “nonexpert” public responses to the Symes case. By “nonexpert,” I mean those people who can be presumed to have a nonlegal and perhaps only passing familiarity with the case: the public that consumes information provided by the media. I argue that, when listening to public commentary, one can hear the echoes of quite different assumptions about what was important in the case, what was at stake, and how the issues should have been properly resolved. Indeed, one can get a better appreciation of the intersectional dimensions in the case by asking how these nonexperts framed the issues. To what extent did they make sense of the case by framing it in different ways: as a problem of (in)equality, as a matter of childcare needs, as an issue of the divide between public and private life, or as involving liberal notions of choice and responsibility? Pursuant to the assumptions operational within each of the four different frames, Symes appeared as powerful or wounded, deserving of scorn or support, marked by privilege or disadvantage. Indeed, a close examination of nonexpert public responses provides a clear illustration of how intersectional problems leave typical and very specific marks on public conversation. The intersection of power and wound, viewed through a number of varying frames, often produces a public debate that feels remarkably unlike a conversation: rather, it has the ring of simultaneous soliloquies or multiple solitudes. The Symes Case in the Press The Supreme Court judgment in Symes precipitated a flurry of articles and commentaries. Amongst them, the Montreal Gazette polled its readers about the judgment, asking them whether or not they agreed with the majority’s conclusion. In addition to providing the numeric results from its poll, the Gazette printed a sample of responses that were left on its phone lines. I spend the majority of this chapter looking at those responses in more detail. Before doing so, however, I address some questions concerning the relationship between the public response to the case and media reports about the case. I am presuming that the Gazette’s nonexpert readers did not read the actual judgment but were responding to the case as constructed in the news media. Were they responding to biased reports? Given the centrality of mass media in contemporary society, questions about the presence or absence of bias in reporting are important ones. Writers have certainly explored the shaping of the news by cultural myths.3 Such an influence is of concern, particularly since the news media, as

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Anderson suggests, has played such a powerful role in the construction of the West’s very notions of nationhood and citizenship.4 In exploring questions of media bias, however, it is useful to remain mindful of the complexity of the relationship between the news/popular media and the media-consuming public. As cultural theorists point out, researchers have too often focused on the content of media messages without taking into account the complex ways in which audiences interact with those messages.5 To use Stuart Hall’s words, audiences are not “cultural dopes.”6 They are not simply passive consumers of media messages but interact and engage with those messages in a number of ways. In my examination of the Montreal Gazette’s opinion poll, I assume the respondents to have engaged with the media reports on the Symes case in a variety of ways. It nonetheless remains useful to survey the content of those media reports since this can give us both a sense of how the case was understood by the media and the context in which the Gazette’s readers were responding. What then can be learned in a brief examination of the forty or so articles, editorials, and letters to the editor that appeared in the press in the weeks following the court judgment?7 One observation is that many of the media reports, particularly in the first few days following the judgment, convey a sense of relative neutrality with respect to the outcome of the case and can legitimately claim the title of “news report.”8 The typical article summarizes the history of the case, notes the presence of a gender divide amongst the judges on the court, and provides brief summaries of the majority and dissenting reasons, generally quoting from the same areas of each judgment. From the majority judgment, the articles typically reproduce the following passages: While it is clear that women disproportionately bear the burden of child care in society, it has not been shown that women disproportionately incur child care expenses. ... Although Symes has overwhelmingly demonstrated how the issue of child care negatively affects women in employment terms, proof that women incur social costs is not sufficient proof that they incur child care expenses. Those social costs, although very real, exist outside the Income Tax Act.

From the dissent, the typical article quotes the following passages: The definition of a business expense under the Act has evolved in a manner that has failed to recognize the reality of business women ... What, in my view, has traditionally been recognized as a “commercial need” has everything to do with those persons who have traditionally held positions in the commercial sphere – primarily men ... The real costs incurred by business women with children are no less real, no less worthy of

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consideration and no less incurred in order to gain or produce income from business.

But, within a few days, media articles begin to contain more of what one might call “editorial comment.” The articles begin to offer explanations and assessments. Some writers pick up on the language of blame that appeared in the judgment and suggest that the case had turned out badly because of the lawyers. Headlines such as “Income-tax Case Took Wrong Tack” and “Child-care Fumbling in High Court” suggest that the case had failed at least in part because of bad lawyering.9 Other articles focus on the judges themselves. Among these, more common than articles supporting the majority or dissent are articles challenging one side or the other.10 Some authors take the majority to task, focusing on what they see as the gender bias embedded in the majority reasoning.11 Here, in articles with headlines like “Tax Ruling on Child Care Offensive,” “Male Bias,” and “They Just Don’t Get It,” reporters argue that the majority’s reasoning reveals its patriarchal blindness. Further, some of these suggest, the majority avoided the main issues, resulting in a judgment one reporter called “rife with tangential arguments.”12 In other articles, the dissent is taken to task, a reporter arguing that “it is difficult to understand the argument that Ms. Symes was a member of a genuinely disadvantage group,”13 while another proclaims that “taxpayers shouldn’t foot bill for personal decision to have kids.”14 Yet others assert bias on the part of the dissenting female justices, one saying, “It’d be nice if they’d stop representing their narrow little feminist interest group, and started representing all Canadians.”15 But more common again were articles focused on the mixed public reaction to the case, and in particular, the mixed reactions of women.16 Despite headlines that sometimes suggest support for the majority (for example, “Child-care Ruling Welcomed by Some Women,” “NAC Backs Child-care Tax Ruling,” and “Women Hail Court’s Ruling on Tax Breaks”), the text of these articles reveals a much more complicated response. Indeed, there is little in these reports to suggest support for the reasoning of the majority. Rather, they seem to explore the reasons why some groups did not support Symes in spite of their agreement with her proposition that the Income Tax Act was discriminatory. If some women were opposed to a win for Symes, the articles suggest, it was for reasons quite different from those articulated by the majority. These articles do not pay much, if any, attention to the Court’s narrow legal holding (the distinction between social and legal costs). Instead, the focus is on the very broad issues raised by the case and on disputes over strategy: what is the best way of ensuring that men and women, businesspeople and wage earners alike, have equitable access to a national childcare support system? In many of these reports, the intersection of gender disadvantage and class privilege emerges as a common

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theme, as does a focus on inequities in the current tax regime and the need for the government to craft better (nontax) solutions to daycare problems. Questions of strategy emerge in other reports as writers express concern about the use of courts rather than legislatures to advance progressive change.17 General inequity in taxation emerges as a common focus and many of the articles include calls for the government to amend its tax laws, be it to address the gendered nature of business expenses, the differential treatment of working and stay-at-home mothers, inequities in the treatment of wage and income earners, or, indeed, the entire category of business expense.18 A review of the media coverage does not suggest the presence of any systemic bias. If anything, it reveals that there was a far from consistent position on the case. It was fairly common for editorials and letters to the editor to go beyond the narrow tax questions in the Symes case and to raise broader issues concerning gender, class, parenting, choice, the work world, government spending, and equity. Perhaps the clearest consistent pattern is that – even where writers took issue with one side or the other – there was a sense of discomfort with the case. The general tenor of media reports is perhaps best captured in the comment of one writer that the case was “unsettling.” As he put it, “Even if the decision was legally correct, it leaves behind a lingering sense of unfairness.”19 I turn now to a consideration of the Montreal Gazette’s opinion poll on the Symes case. Can the poll results offer us a vehicle for thinking about the nonexpert public response to the case? Nonexpert Responses On 19 December 1993, following an article summarizing the majority and dissenting reasons in the Symes case, the Montreal Gazette posed the following question to its readers: “Do you agree that self-employed women should not be allowed to deduct the cost of child care as a business expense?”20 A week later, the Gazette reported the results of the survey, including a sample of responses that were left on its info-line.21 In all, 2,006 readers called the info-line to respond: 981 said no and 1,025 said yes. That is, 981 agreed with the dissent and 1,025 agreed with the majority. While these numbers are interesting, there are of course limits to the conclusions that can be drawn from such a survey. So, for example, one cannot simply compare the 7-2 split on the Court with the nearly 50-50 split in newspaper reader opinion. Such a comparison would be a bit like comparing apples and oranges: the judgment is dealing with some specific narrow legal questions; the survey asks only whether one supports or opposes the final result. That being said, the numbers do suggest that the nonexpert population in Montreal was more closely divided about the case than was the Court. A second limitation of a survey such as this is

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that one cannot presume that it accurately reflects the sentiments of the general population. While the sample size is large, the poll was an active one rather than a randomly selected one. That is, it required people to contact the Gazette in order to register their opinion. As such, the poll at best reflects the views of 2,000 readers who held strong opinions on the issue. The same caveat applies to the comments that were printed by the Gazette. The comments printed were selected from a larger sample by a member of the newspaper staff and cannot be presumed to be statistically representative. However, for the purposes of this discussion, the comments are a valuable window into the types of arguments and explanations made by the nonexpert public following the case. In this collection of sixteen comments, one can see how the legal judgment was retranslated as it moved from the courtroom into the forums of public discussion. Second, one can identify how different explanations of support or opposition reveal different people to have framed the case in quite different ways. Because of the intersections of advantage and disadvantage in the case, there was a significant number of ways to frame the case. By examining the comments with a view to identifying the frames, one can also see why the public debate surrounding the case was so rarely productive of agreement. It would hardly be surprising if a person who was concerned with advancing a national daycare agenda might see the case differently than a person concerned with the symbolic erasure of women in the construction of supposedly gender-neutral categories like “businessperson.” In public debate about the case, those operating from within completely different frames of analysis were rarely able to address (or sometimes even identify) the concerns raised by those operating within other frames. There are four particular frames that I discuss in this section, frames that appear and disappear in the eddying discourses that characterize the Symes case. They are the Equality Frame, the Childcare Frame, the Choice and Responsibility Frame, and the Public/Private Divide Frame. From within each frame, different assumptions about the world are operational. Pursuant to these assumptions, the respondents saw the case in terms of power or wound. Within each frame, different kinds of arguments seem to be available to explain why the result in the case was justified or not. I do not argue that any one of these frames is superior to the others. Indeed, each provides a different window into a very complex case. My goal is to better understand, by looking at the public discussion in terms of frames, how a complex intersectional case such as Symes may produce a certain kind of social discussion that seems intractable. The related goal is to determine whether an ability to identify intersecting (and nonintersecting) frames would enable a more productive kind of social discussion. Here then, are the sixteen comments printed by the Gazette.

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Any expense in my business that allows me to make income I am allowed to deduct. Therefore it’s discriminatory to say that a woman should have to have her children at work with her which would make things impossible. To make a living she has to have child care and it should be deductible. Women should be allowed to claim child care expenses – let’s get rid of sexism in this country. If they allow cars and club memberships and dinners as legitimate business expense, I don’t see why a nanny should not be. Nannies give mothers the peace of mind to do the job effectively. A lot of women keep the economy moving. How can the politicians give themselves tax-free allowances and not allow a woman to deduct the money paid for watching her children while she works? These politicians should be made to pay back all the money that they stole from the people. Women should be allowed to deduct the cost of child care as a business expense. It is so tough to make a living today. When are women not going to be discriminated against because we are the child bearers? Most women who have children and stay home live in a poor-income area. Having children is a privilege and special privileges should be given to women. It’s about time that this is recognized whether you stay home or work. Deducting the cost of child care should not be limited to self-employed women. It should be for all working women who pay childcare expenses. Definitely any parent who has child care expenses relating to earning a living should be allowed to deduct them to the fullest amount. There is absolutely no connection between having children and running a business. The Supreme Court is trying to get daycare to be another taxpayer expense. Anyone who can afford to pay $50,000 for a nanny should be able to afford the tax. If they can afford to be self-employed and pay a nanny they can afford to pay the taxes.

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As a working mother who has raised children on her own without any help from anyone except my salary, I don’t see why this lawyer lady should get any help or special privileges. Self-employed women should not be allowed to deduct child care as a business expense nor should anyone else. I am 61, and we didn’t deduct a thing. We are on a bandwagon of gimme, gimme, gimme – and that is why the economy is so bad. Women should not be allowed to deduct expenses nor should selfemployed men be allowed to deduct. The Gazette is becoming very sexist regarding men – start looking at your headlines and all the women’s issues that you cover. The question should be: Are we willing to pay higher taxes so that businesswomen can claim their expenses? I am not willing. No I don’t think they should deduct it as a business expense because if a couple decide to have children that is their problem and if she chooses to work they should have to pay for it.

In the discussion that follows, I treat all sixteen comments with equal seriousness, since even those comments that seem off-the-cuff or out-ofcontext may reveal themselves to be an important piece of the larger social debate around complex intersectional problems. My goal here is not to assert what the speaker actually meant, but to look closely at the comments to identify the presence of different frames of analysis. Do the comments give us clues about how the speaker might have seen the problem? Are there clues about what the speaker saw as the focus of the case? What assumptions about men, women, children, and work are linked to these different frames? Under these assumptions, is this case about power or wound? The Equality Frame I begin with the Equality Frame. Since the case was discussed in the media as an equality case, it is not surprising that an equality frame can be seen in so many of the responses. The diversity of responses reveals, however, that those who agreed that the case should be viewed through an equality frame did not necessarily agree that the Symes case itself involved any inequality. We can see both support for and opposition to the case by those employing an equality frame. This is not surprising since the comments also document public disagreement about the very meaning of equality

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itself. In particular, should the principle of equality require that people be treated similarly or differently?22 Some of the comments reveal an equality frame that focuses on a sameness approach. These responses emphasize that similar expenses incurred by businesspeople should be treated in a similar fashion. The disagreements arise over whether or not a childcare expense is like other business expenses. For some of the respondents, the similarity seems self-evident. For example, “If they allow cars and club memberships and dinners as legitimate business expense, I don’t see why a nanny should not be.” Other comments reveal exactly the opposite conclusion but based on similar reasons: businessmen and businesswomen should be treated the same and neither should be allowed to deduct childcare expenses: “Self-employed women should not be allowed to deduct child care as a business expense nor should anyone else,” and “Women should not be allowed to deduct expenses nor should self-employed men be allowed to deduct.” Other comments reveal an equality frame based on a difference approach. Within this frame, it is assumed that there are differences between men and women and that these differences are more than superficial. In these comments, men and women are presumed to be quite different. Because of these differences, certain kinds of similar treatment constitute discrimination. Indeed, some of these respondents seem to identify the exclusion of childcare expenses as yet another instance of discrimination based in a failure to acknowledge difference. For example, “When are women not going to be discriminated against because we are the child bearers?” Within the difference frame, one also hears echoes of the earlier language of maternal feminism, a language that valued the (supposedly) unique position of women as mothers. From this perspective, equality would involve allocating certain privileges based on difference. For example, “Having children is a privilege and special privileges should be given to women. It’s about time that this is recognized whether you stay home or work.” In this articulation of the equality frame, Symes would be entitled to the childcare deduction not because she was a businesswoman with expenses similar to those incurred by businessmen but because she was a mother and thus entitled to the special privileges that should attach to motherhood. The language of privilege is also used, still within the equality frame, as a way of dismissing Symes’s claim. For some respondents, the fact of economic privilege disentitles a person from getting “special treatment”: “As a working mother who has raised children on her own without any help from anyone except my salary, I don’t see why this lawyer lady should get any help or special privileges.” In other words, all women should be treated the same. Equality mandates that businesswomen and employed women are treated the same and across generations. In addition to disputes over the use of a sameness or difference approach

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to equality, the nonexpert responses reveal a number of different views about the appropriate focus of the equality challenge. Was the case about sex, employment status, or parental status? That is, was the inequality one involving women, businesspeople, or parents? Assumptions about the proper focus are evident in the responses. Sometimes the comments refer specifically to sexism or sex equality. For example: “It’s discriminatory to say that a woman should have to have her children at work with her,” and “Women should be allowed to claim childcare expenses – let’s get rid of sexism in this country,” or “When are women not going to be discriminated against?” Attention is given to sex (or gender) in these comments. In other responses, however, the focus is on the distinction between business and wage earning, evoking concerns about class-based distinctions. Here, the comments reveal a concern that not only businesswomen should claim the expense: “Deducting the cost of childcare should not be limited to self-employed women. It should be for all working women who pay childcare expenses.” In this comment, the equality focus is one that highlights issues of class and economic equity between women. Others go further and deconstruct gender by suggesting that the appropriate equality focus is not “mothers” (whether or not they work) but the ungendered “parent”: “Definitely any parent who has childcare expenses relating to earning a living should be allowed to deduct them to the fullest amount.” While some of the comments clearly tied childcare to women, this latter comment suggests an element of gender neutrality to parenting. The notion of gender neutrality also emerges in one of the seemingly off-topic responses: “Women should not be allowed to deduct expenses nor should self-employed men be allowed to deduct. The Gazette is becoming very sexist regarding men – start looking at your headlines and all the women’s issues that you cover.” This is an interesting comment to scrutinize more closely because it reveals how gender is very much present in public constructions of neutrality. The comment starts off in a seemingly gender-neutral way: the deduction should be available to neither women nor men. They should be treated equally – in a gender-neutral fashion. However, the tag-on comment about the Gazette’s sexism reveals that neutrality may actually mean “that which is not of primary interest to women.” Here, according to this respondent, the Gazette is being sexist regarding men through excessive attention to “women’s issues.” Since the Symes case prompted this response, the Symes case must be another instance of “women’s issues.” Though the response suggested a gender-neutral solution to the matter of childcare, it would seem that the respondent does not really see childcare as a gender-neutral issue. Childcare is not an issue of importance to both men and women. Childcare is a woman’s issue and the newspaper is discriminating against men by devoting significant attention to such issues. If an issue is primarily of concern to (or involves the participation

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of) women, it cannot be neutral. Male as norm is the unarticulated assumption governing this respondent’s vision of neutrality. It was this vision of male as norm that was at the centre of Symes’s challenge to the Court’s construction of business expenses. The comment is interesting as an example of the male-as-norm assumption built into current constructions of that which is neutral. It also emphasizes the ease with which respondents may speak completely past each other, even where they frame an issue in a similar fashion. Where male-as-norm is a foundational assumption in someone’s vision of equality, a challenge like Symes’s can only be seen as an attack on equality rather than as a quest for equality. As a final point, I would emphasize that the language of equality may be employed even in cases where a respondent does not actually see the case through the equality frame. For example, consider this response: “How can the politicians give themselves tax-free allowances and not allow a woman to deduct the money paid for watching her children while she works? These politicians should be made to pay back all the money that they stole from the people.” The first half of the comment looks like a traditional sameness equality argument. If politicians get tax-free allowances, then women should get childcare deductions. However, the comment is immediately followed by one that states that those tax-free allowances are a form of theft from the people. Does the respondent think, therefore, that the deduction for women would also be a form of theft but that women should equally be entitled to steal? It is unlikely. I would suggest that in cases like these, the language of equality is mobilized but the respondent is actually using a different frame, one that sees the deduction as justified on quite different grounds. In this particular case, it may be that the respondent, though using the discourse of the equality frame, is motivated by a simple suspicion of politicians. This would not, however, explain the implication that women should be able to deduct childcare expenses. Indeed, it could be that the respondent is actually seeing the case through the Childcare Frame. The Childcare Frame From within the equality frame, it is common to hear arguments focusing on “rights.” From within the Childcare Frame, it is more common to hear arguments mobilizing discourses of “need.” The central issue is the specific need of women to have assistance with the onerous burdens of childcare. The focus is on the need of a child to have care rather than on the less tangible right of a parent to have access to assistance. Within this frame it is clear that issues of children’s needs are intertwined with assumptions about the socioeconomic class position of their parents. What kinds of comments does one hear from those operating within this framework? Certainly, the language used places heavy emphasis on need. For example: “To

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make a living she has to have child care,” and “It is so tough to make a living today.” Within this frame, the language of need is supported by discourses of desert: not only do women need the benefits, they also deserve them because of the importance of the work they do. For example, “A lot of women keep the economy moving.” Within this frame, some responses emphasize that childcare needs are not dependent on self-employed status. Thus, respondents using this frame may argue that the deduction should be available to accommodate the childcare needs of all women: “Deducting the cost of child care should not be limited to self-employed women. It should be for all working women who pay child care expenses.” A comment like this could be read as within the equality frame but it also fits well in the childcare frame, in a context where the focus is on the “need” of women for childcare assistance rather than on the equality implications of childcare. In these comments, the gendered need for childcare crosses lines of economic class (if the business/employed distinction can stand as a class distinction). In other responses the need argument goes further and is constructed less as the need of a mother than as the need of a child. Where the focus is on the child’s need for care, gender becomes irrelevant within the frame. In that case, the deduction should be available to any person who is responsible for a child: “Definitely any parent who has child care expenses relating to earning a living should be allowed to deduct them to the fullest amount.” In short, the childcare frame may, like the equality frame, allow for the deconstruction of gender, albeit for different reasons. This highlights one of the difficulties in the discussion. A comment such as the above may occur within either the equality or the childcare frame. Though the rhetoric may occasionally sound the same, different reasons motivate support or opposition. This is clear in comments that emphasize the absence of need. For example, “Anyone who can afford to pay $50,000 for a nanny should be able to afford the tax,” and “If they can afford to be selfemployed and pay a nanny they can afford to pay the taxes.” In these comments, the need argument does not necessarily support Symes’s position. For these respondents, given that Symes was not sufficiently needy, it would be inappropriate to give the deduction. So, where the woman is needy, a person might hear support expressed in the language of equality, support that would vanish when the precondition of need was no longer there. The Public/Private Divide Another framing of the case reveals a concern with the traditional public/ private divide. The Symes case was a direct challenge to the Income Tax Act’s historic categorization of childcare as falling on the private side of the business/personal divide. While a tax lawyer could protest, pointing out

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that the public/private divide does not map cleanly onto the Income Tax Act’s business/personal distinction, the nonexpert response illustrates that questions of the public/private divide nonetheless played a role in social discourse about the case. In some of the responses one hears the assertion that childcare has been inappropriately assigned to the realm of the purely personal, as well as a willingness to redraw the distinction in a manner that would place childcare self-evidently on the side of the public: “Any expense in my business that allows me to make income I am allowed to deduct.” Other responses deal with the divide by analogy, finding childcare to be sufficiently like traditional expenses to justify shifting them from one side of the divide to the other: “If they allow cars and club memberships and dinners as legitimate business expense, I don’t see why a nanny should not be.” In other responses one hears a stronger attachment to the public/private divide as currently constructed. Indeed, there is sometimes a concern at what is deemed to be an inappropriate attack on an important boundary between that which is public and that which is rightly private. For example: “There is absolutely no connection between having children and running a business. The Supreme Court is trying to get daycare to be another taxpayer expense.” In such a comment one hears the concern that Symes is attempting to push the costs of her private life into the public realm, forcing the public to bear the costs of private matters. Within this frame there is often a concern with ensuring that the public and private realms each remain pure. Certainly, there is a concern that the public not be made to pay for individual’s private choices. Indeed, for some of those seeing the case through this frame, attacks to the public/private divide are destructive of the economy itself. For example, “I am 61, and we didn’t deduct a thing. We are on a bandwagon of gimme, gimme, gimme – and that is why the economy is so bad.” While some of the responses reveal an unwillingness to examine the public/private divide, other respondents seem willing to acknowledge the fluidity of the boundary. While appearing willing to entertain debate about how the line should be drawn, they emphasize that there are economic costs associated with such a redrawing. For example: “The question should be: Are we willing to pay higher taxes so that businesswomen can claim their expenses? I am not willing.” From within this frame issues of equality or need are far from evident (or relevant). The concerns are with how society has drawn the distinction between public and private matters and the economic implications of shifts to the boundary between public and private life. Choice and Responsibility There are some strong links between the public/private frame and the fourth frame. The fourth frame focuses on liberal notions of the autonomous self, a self that makes choices and bears (without complaint) the

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responsibility for those choices. Within this frame, the emphasis is on choice and responsibility. This frame was mobilized at trial when John Power cross-examined Symes and focused on her “personal choice” to have children and at the Supreme Court when Justice Major commented about Symes having chosen to have children. A classic example from the Montreal Gazette survey was the following nonexpert response: “No I don’t think they should deduct it as a business expense because if a couple decide to have children that is their problem and if she chooses to work they should have to pay for it.” While the above comment is not supportive of a claim such as Symes’s, the frame of choice can be mobilized in quite different ways depending on the presence of differing (and often unarticulated) assumptions. I illustrate this by looking closely at the above statement and unpacking some of the assumptions woven into it. First, it is important to note that the statement assumes the existence of some sort of public/private divide and places the decision to have children firmly in the realm of the private: “If a couple decide to have children that is their problem.” This conclusion requires the assumed segmentation of the world into public and private domains and the further presumption that children are private and personal matters for a couple – difficulties in raising children are not matters of public concern. A second presumption in the above comment is that the decision at issue (to have children) is one made by a couple. This assumption places the weight of both choice and responsibility not on an individual but on a couple (“that is their problem”). This focus on couples assumes that two parents are responsible for each child. This being said, the rest of the comment reveals the presence of a third presumption governing the division of responsibility within the couple. The comment goes on to say: “If she chooses to work they should have to pay for it.” Why not, “If he chooses to work” or even “If they choose to work”? The fact that the latter two possibilities are not articulated reveals the presence of an assumption that caring for children is primarily a woman’s responsibility and a responsibility that locates her in the home. The assumption is that fathers must work: it is not a matter of choice but a matter of necessity. The phrase “If she chooses to work” suggests that women’s work outside the home, unlike men’s work, is a consumer good of sorts. If a couple decides to buy the consumer good of a woman’s wage then they have to pay the cost of that good. So, in effect, it is not really the couple but the mother who has to make a choice. She can work outside the home or not, but if she chooses to work the couple will be required to assume the full responsibility for bearing the cost of that luxury good. If the assumptions above change, the discourse of choice allows for quite different responses. If one does not assume that the income of two parents is available to the child then the discourse of choice and responsibility changes. It may be that the woman has no choice but to work. If she has no

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choice then it may be inappropriate to make her bear the costs of the care. For example, “It’s discriminatory to say that a woman should have to have her children at work with her which would make things impossible. To make a living she has to have child care and it should be deductible.” Here, the respondent does not see that the woman has a “choice.” On the contrary, it would seem that she does not have a choice about childcare and, because of that lack of option, she must have access to childcare. The frame of choice is also present in responses that emphasize economic difficulties. Where it is hard to make ends meet, the woman’s work cannot be seen as optional. Because of a tight economy, the woman’s work becomes necessity, not choice: “Women should be allowed to deduct the cost of child care as a business expense. It is so tough to make a living today.” This comment is interesting because it also serves as a reminder that the relevant assumptions can be combined in different ways. This response, which says the deduction should be available to “women” while not presuming that woman’s work is a luxury good, nonetheless does seem to accept that the responsibility for childcare does fall on the shoulders of women (as opposed to the more gender-neutral category of parents). Of course, within this frame the absence of choice does not necessarily negate an overriding responsibility. It may be that even if they didn’t choose to have children, the fact of having them brings a responsibility. For example, “As a working mother who has raised children on her own without any help from anyone except my salary, I don’t see why this lawyer lady should get any help or special privileges.” The issue of choice here seems to have been trumped by reality. Once a person has children, he or she has responsibilities and must simply accept them – he or she is certainly not thereby entitled to special assistance. Public Response to the Intersection of Power and Wound In the above exploration of the public comments about the Symes case, it is clear that difficult social questions are at the heart of what remains a heated public debate. Depending on the frame through which one understands any given combination of power and disadvantage, these social questions produce different understandings and concerns. Depending on the operational frame of analysis, some things are drawn into the spotlight and other things fade into the background. The responses also suggest that even the nonexpert public had an often nuanced understanding of the complexities raised by the case. Issues of class and gender do emerge in the responses but what we see is a public that does not necessarily conceptualize the case as a conflict between class and gender interests. While questions of class and gender do play out within each frame, they seem to play out in terms of assumptions or silences with respect to whether class/gender is or is not central to more

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pressing questions of sameness and difference, choice and responsibility, children and their needs, and the structure of public and private life. Because different frames bring different issues into relief, it is sometimes difficult to be certain about the reasons why a person supports or opposes a given claim. A comment like “Definitely any parent who has childcare expenses relating to earning a living should be allowed to deduct them to the fullest amount” provides a clear example. Here, support for the deduction could be resting in a variety of locations. There are hints of equality discourse in the suggestion that the deduction should be available to all parents (regardless of gender). But support might actually be located in a vision of the public/private divide. It may be that this respondent is unconcerned about issues of equality and simply sees childcare expenses as falling into the public category of business expense (because the expenses are related to earning a living) rather than into the realm of private expense. Alternatively, the issue may be whether or not the specific parents need childcare in order to earn a living. Support may or may not be forthcoming when the parents do not actually need to work. Finally, support may rest on specific assumptions about question of choice and responsibility. The respondent may be assuming that the parents have no choice with respect to work and thus should have their expenses reimbursed. This specific respondent, while clearly supporting deductibility, is less clear about the assumptions and frames that have lead him or her to this conclusion. But, with shifts in any of the underlying assumptions listed above, there could be a quite different mobilization of the discourse of equality, of the public/private divide, of childcare needs, and of choice and responsibility. As a result, it is difficult to draw conclusions about other contexts in which support would continue to be forthcoming. The presence of so many different frames in the nonexpert public response to the case also makes it clear that the discourses filtered out by the Supreme Court majority were not thereby filtered out of the public discussion. Though the Court may have chosen to discuss the case as involving essentially an absence of sufficient evidence, the nonexpert responses suggest a public that continued to see the problems in the case as the broader ones reflected in the discourses of equality, childcare need, public/ private divides, and notions of choice and responsibility. The number of frames present serves as a reminder that complex intersectional blends of power and wound generate complex public discussions. This chapter emphasizes the importance of attending to these multiple frames of analysis. To identify the operational frame is not to determine the result, nor to predict opposition or support to a given case. From within any given frame it is possible to arrive at different conclusions. However, frames do play an important role in shaping the kinds of arguments that are or are not seen as compelling to a person operating with that frame.

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Cases involving intersections of power and wound may in fact commonly generate responses centred in the four frames discussed in this chapter. One might argue that framing is a rather limited tool: it does relatively little to help us understand why some frames are advanced over others or how one might resolve conflicts over the most appropriate frame. Certainly, an approach that seeks only to reveal the presence of frames leaves unanswered a set of additional questions about the connections between frames, about the lines that link some frames and set others in opposition. However, by anticipating the presence of these frames, and understanding how each leads to a different way of seeing the problem, one may be better prepared to enter into debate that speaks to the kinds of issues of concern to those viewing intersectional problems through divergent frames. One may at least be able to ensure that the conversation has the ring of disagreement, rather than the ring of soliloquy.

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8 Class and Gender on the Terrain of Need: Intersectionality in Expert Public Response

The Symes case involved a challenge to the limits of the political. Within the boundaries of law, the discourse of rights has been one of the primary tools for such challenges. Certainly, equal-rights discourse was deployed by Symes, by the government, and by the courts, and was present in expert and nonexpert responses alike. It was not, however, the only form of discourse used. The language of need was also prominent throughout the case. Nancy Fraser might remark that the presence of “needs talk” was to be expected.1 Indeed, she argues that needs talk has increasingly functioned as a medium for the making and contesting of political claims, claims once articulated more commonly with “rights talk.” As she puts it, “In welfare state societies needs talk has been institutionalized as a major vocabulary of political discourse. It coexists, albeit often uneasily, with talk about rights and interests at the very centre of political life.”2 Certainly, the Symes case was characterized by this uneasy coexistence of rights and needs talk.3 In this chapter I direct my attention to struggles over the politics of need as reflected in the expert commentary on the Symes case.4 The politics of need, Fraser suggests, occurs on three intersecting axes of struggle: struggles over the politicization of need itself, over the content of need, and over the most appropriate strategies to ensure that needs are fulfilled. Against the background of Fraser’s model, I illustrate that much of the conflict among the experts can profitably be understood as conflict occurring on these different axes of struggle. The resultant conflict sometimes tends to mask a significant amount of agreement and accord among expert respondents. I argue that a focus on the politics of need reveals that much of the supposed conflict between experts over the intersection of class and gender interests was in fact more imagined than real. What conflict there was (and I do not minimize that conflict) was less a conflict between class and gender, than it was a set of conflicts about the most appropriate strategy to advance needs grounded in both class and gender.

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In developing this claim, I provide a summary of Fraser’s model of conflicting axes of struggle over the politics of need, review the expert responses to the case, and illustrate how Fraser’s model provides a useful way of understanding expert ambivalence about the Symes case. Her model, I suggest, provides one way of thinking about conflicting public responses that focuses attention less on unresolvable struggles between class and gender interests, and directs attention instead to how struggles over need play out on intersecting (and equally important) strategic axes of struggle. The Struggle over Need: Fraser’s Three-Axis Model I began this chapter with an assertion that the discourses of right and of need are two mediums for the making and contesting of political claims about the boundaries between public and private life. Each of these mediums provides different tools for those who wish to extend (or contract) the boundaries of the political. There are close links between the discourse of rights and the discourse of needs and theorists including Fraser and Young have commented on how each notion can be transmogrified into the other.5 Both discourses offer vocabularies and structures for seeing the problems (they are forms of power/knowledge). However, there is some utility in examining each discourse on its own terms since each rests on different structures of arguments and has different explanations for how the world should be understood. Certainly, the discourse of need differs from the discourse of rights in some important ways. For one thing, there are different assumptions about how government is supposed to respond. The discourse of rights implies a certain inevitability of government action: in the context of a rights-based claim, certain actions by government are considered illegitimate. However, a weakness of many rights-based claims is that they work best in the context of inaction rather than action. That is, they are most compelling when the issue is the prevention of certain government action. Needs-based claims focus rather on action by government: action that has a positive direction, which involves the expenditure of actual monies, and the creation of actual services. The goal of needs talk is to persuade the government that it should be moved to action and thus, language of petition is more common than language of entitlement. As Fraser points out, needs claims (to the extent that they are scrutinized closely and go beyond generality) tend to proliferate controversy. This is, she suggests, because the claims are nested in chains of “in-order-to” relations (i.e., Symes needs childcare in order to earn income) and, when such chains “are unravelled in the course of political disputes, disagreements usually deepen rather than abate.”6 Given the inherent difficulties of resolving these chains, Fraser suggests that those attempting to

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understand the struggles over need should focus not on need itself but on the politics of need interpretation. In other words, the issue is less to determine what childcare needs are than it is to explore the ways that we talk about need and the politics behind that talk. That is what I propose to do here. In her essay “Talking About Needs,” Fraser seeks to understand the ways that the major varieties of needs talk interact polemically with one another, as well as the opportunities and obstacles that needs talk poses for movements that seek far-reaching social transformation. She suggests that there are three interrelated moments in the politics of need: The first is the struggle to establish or deny the political status of a given need, the struggle to validate the need as a matter of legitimate political concern or to enclave it as a nonpolitical matter. The second is the struggle over the interpretation of the need, the struggle for the power to define it and, so, to determine what would satisfy it. The third moment is the struggle over the satisfaction of the need, the struggle to secure or withhold provision.7

In short, there are struggles to establish or deny a given need, to define the need and determine what would satisfy it, and to secure or withhold the means to satisfy the need. Each axis of struggle, she argues, typically involves different types of talk. The first axis involves the struggle to politicize a need. Fraser says that on this first level of struggle, the politics of needs talk commonly involves the interaction of oppositional and reprivatizing discourses. Oppositional talk, according to Fraser, is talk where needs are politicized from below. Often, the politicization of need involves the crystallization of new social identities by subordinated groups. When these kinds of needs are articulated, Fraser suggests that several things typically occur: the contestation of established boundaries, an offering up of alternative interpretations of need, the creation of new discursive publics from which to disseminate new interpretations, and a challenge to or displacement of hegemonic elements of the means of interpretation and communication. On this first axis of struggle, oppositional discourses are met by reprivatizing discourses. These discourses oppose state provision of what they see as runaway needs, seeking to de-politicize and contain these forms of needs talk. These reprivatizing discourses articulate more narrow need interpretations that could previously have gone without saying. Clearly, things shift as that which could have gone without saying is forced into articulation. Indeed, reprivatizing discourses, because they are responding to competing oppositional interpretations, must incorporate references

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to the alternatives they resist even while rejecting them. Fraser points out that reprivatizing discourses may in fact become vehicles for mobilizing social movements and reshaping social identities. In axis-1 struggles, there are questions that are left only loosely answered – questions like “What is the exact content of that need?” and “Who exactly falls within the realm of acceptable needs claimants?” There are good reasons for leaving certain dimensions of need only loosely defined in the early stages of a struggle: attempts to define a need with precision at this point may overly politicize early debates about the need and generate sufficient disagreement as to effectively prevent broad-based validation of the need as a matter of legitimate political concern. Indeed, attempts to define a need with precision on axis 1 may derail efforts to have the need acknowledged as a matter of political concern. Questions about the actual content of the need and proper recipients are questions at the centre of axis-2 struggles. On the second axis of struggle, it is accepted that the need has legitimately entered into the political. The struggle is over the content to be given to that need. Axis-2 struggles engage a wide range of participants and discourses because the interpretation given to the need may have implications for the interpretation of other needs in other struggles. Thus, on axis 2, one enters a veritable interpretive furnace. Fraser gives the US struggle over daycare as an example of an axis-2 struggle over the content of a need. She says: In one view, day care would serve poor children’s needs for “enrichment” and/or moral supervision. In a second, it would serve the middle-class taxpayer’s need to get AFDC recipients off the welfare rolls. A third interpretation would shape day care as a measure for increasing the productivity and competitiveness of American business, while yet a fourth would treat it as a part of a package of policies aimed at redistributing income and resources to women. Each of these interpretations carries a distinct programmatic orientation with respect to funding, institutional siting and control, service design, and eligibility. As they collide, we see a struggle to shape the hegemonic understanding of day care, which may eventually make its way onto the formal political agenda. Clearly, not just feminist groups but also business interests, trade unions, children’s rights advocates, and educators are contestants in this struggle.8

This description resonates with the history of Canadian debates about childcare described in Chapter 2. Axis-3 struggles involve attempts to secure the means to fulfill the need. Just as axis-2 struggles presume that the need has been legitimately politicized, axis-3 struggles presuppose both the legitimacy of politicization and

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a coherent vision of the content of the need. This level of struggle is, according to Fraser, typified by the struggle amongst expert discourses, and between expert discourses and oppositional discourses. By expert discourses, she means those that translate politicized needs into candidates for state-organized provision. Fraser suggests these are bridge discourses linking social movements to the state. These discourses offer solutions for the provision of the need. Expert discourses are, she reminds us, most often associated with professional class formation (lawyers, social workers, doctors, etc.). Axis-3 struggles usually begin in these specialized publics and are eventually disseminated to a wider spectrum of publics. Here, they encounter oppositional discourses, which sometimes express the fear that expert discourses tend to again depoliticize the struggles. Fraser gives the example of battered women’s shelters. Early oppositional activists focused on politicizing the events for the women who found their way there. However, as expert discourses moved into the area, there was a tendency to shift the focus from consciousness raising to one of treating the women as clients or victims, personalizing the battering relationships and losing sight of the larger social/political context in which the battering occurred. In this example, one can see that axis-3 struggles (to the extent that they tend to de-politicize and reconfigure need) can re-engage axis-1 and axis-2 struggles. Expert Responses In light of this model of needs struggle, I turn to the expert response surrounding the Symes case. As one might expect, there was not a unanimous or consistent feminist position on the Symes case. As Isabel Grant, a law professor at the University of British Columbia, put it, “It’s not a case on which feminists are necessarily in accord.”9 This was putting it mildly. Certainly, some of the expert responses directed attention primarily to issues of gender.10 Concern with the gender inequity in the Income Tax Act led lawyer and academic Margarit Cassin to support the case.11 Gender was also of primary concern to Professors Eansor and Wydrzynski, who argued that to leave the current deductions unchallenged was to sanction “the historically disadvantaged status of women in the economy.”12 Laura May, president of the Calgary Women’s Network, called the decision “very gender-related,” claiming that it would hurt small businesses and the women who wanted to start them.13 Lynette de Baat, publisher of the monthly Alberta Women in Business Newsletter, said that the decision gives one the impression that “men just don’t want to see women getting ahead.”14 Other experts directed attention to issues of class. One of the most vocal was Michael Mandel, who constructed the case as an archetypal contest of class versus gender. He argued that the only way for Symes (and her lawyer

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Eberts) to win their case “was to align themselves with their class at the expense of their gender.”15 Indeed, he went so far as to accuse Symes and Eberts of illegitimately using gender-equality arguments and hiding deeper questions of class disadvantage. He argued that Symes had not seriously put class disadvantage at issue because “it would have revealed that the equality she sought was equal access to a scam ... Symes was trying to use the trump card of sex equality to give her claim extra credibility, so there was no avoiding the fact that this was not just any scam, but a scam against women too, the vast majority of women who were not in business for themselves, including women like Beth Symes’s children’s nanny.”16 But while some experts saw the case as primarily about the injustices of gender, and others as primarily about the injustices of class, the majority of experts seemed to be struggling with a sense of commitment to both the class and gender issues raised by the case. Even though many of those responses express ambivalence about if not clear opposition to the Symes case, they also acknowledge the gendered experience of childcare and advert to the gendered childcare burdens experienced by the majority of mothers, whether they earn business income, are employed, or work in the home. While holding together the threads of gender and class, these responses direct attention to questions of strategy – how does one craft an approach that meets the need of social equity on the lines of both gender and class? So, for example, Martha Friendly, chairperson of the Childcare Committee of the National Action Committee on the Status of Women (NAC), claimed that the Supreme Court’s decision was not a blow to women but a victory for social equality: “It would have been very unfortunate if the existing tax breaks had been extended and made available to a very select and privileged group of people. Using tax breaks to pay for childcare doesn’t satisfy the requirements of social equality.”17 Sue Wolstenholme, co-chairperson of the Child Care Advocacy Association of Canada, made a similar statement: “This is only a very minimal kind of benefit to a very few people who have lots of other options ... So it’s not really any kind of a solution to the child-care problem in this country.”18 Proving the adage that politics makes strange bedfellows, similar concerns were given voice by Cynthia Forsyth, the national president of REAL Women (a group that is often characterized as antifeminist).19 According to Forsyth, had Symes been successful, “the decision would have resulted in discrimination against all other women.”20 Forsyth was concerned with tax laws that would support two-income families while penalizing singleincome families where the woman was at home raising children. Kathy Harvey, co-coordinator for the Kids First test case, also claimed to be pleased by the Symes decision.21 She was disturbed that a win for Symes would not have lead to a recognition of the “value of care parents give at home.”22

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The holding together of class and gender was also apparent in comments like that made by Professor Dianne Pothier: Symes’ attempt to frame her claim only in respect to self-employed taxpayers strikes me as analogous to launching a claim only on behalf of green eyed women. Just as eye colour is irrelevant to any serious issue of sex discrimination, so is self-employed status irrelevant to the issue of child care expenses inhibiting women’s earning potential.23

While this comment foregrounded the potential class-based inequality in the case, it did not suggest that gender was thus unimportant. Indeed, the implication is that gender is very relevant to the issue of childcare expenses inhibiting all women’s earning potential. That is, the issue for Pothier seems not to be one of class vs. gender but of choosing a strategy sufficiently broad to capture a gender-based claim across a broader class spectrum. Professor Faye Woodman, who had written earlier articles attacking Symes’s strategy, articulated her ambivalence about the case, stating that it was a cause for both celebration and concern.24 One of the issues at the heart of the case was whether or not tax legislation could be measured against the demands of the Charter. On the positive side, the case did illustrate that attacks to the Income Tax Act were possible. On the other hand, she felt the case also suggested that Charter-based attacks to the Income Tax Act were likely be of doubtful equity. Professor Claire Young’s critiques of the case also highlighted some of the problematic class issues involved in the case.25 Because of structural flaws in any system of deductions, she pointed out, a win for Symes would be experienced in very different ways by women with different incomeearning sources and potentials. Both she and Professor Judy Fudge worried that litigating for subsidization of childcare through income-tax deductions would potentially contribute to the privatization of childcare.26 Such privatization, they suggested, might well reinforce the subordination and oppression of the women who provide such services – very often poor women and women of colour.27 Again, these concerns about class were held in concert with an understanding of the gendered impact of childcare responsibilities and the gender of childcare providers. There were a number of expert responses that placed questions of strategy first and foremost. Professor Brenda Cossman, for example, expressed concern with the implications of the case for long-term strategies on childcare. She was worried that the case had divided the childcare lobby. For her, the issue was not equality rights but proper choice of strategy. She argued that “litigation strategies [must] be pursued in the context of, and be accountable to, the broader women’s movement.”28 To her, the strategy

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in Symes was too short-sighted: “long term political objectives ... must not be lost to the shorter term objectives of litigation strategies.”29 Professor Audrey Macklin also worried about the effect of such a narrow challenge, asserting that it could only “fragment and weaken the movement by and on behalf of all women, rich and poor, toward a comprehensive and accessible national day care program.”30 She worried that success for Symes and the few businesswomen who might be able to deduct their childcare expenses might foster a false public impression that the problem of inadequate childcare had been solved. While she concluded that the gender-based tax challenge had merit, she worried that the failure to completely consider the needs of women who were employed was quite significant in a context where poor women, immigrant women, and women of colour were disproportionately represented in the category of domestic workers. In her words, the case left feminists “at a dispiriting impasse.” In the section that follows, I argue that a focus on the politics of need can help one see more in the expert responses to the Symes case than simply evidence of a dispiriting impasse. Examining the Expert Responses to a Model of Needs Struggle As shown above, some of the experts explained their ambivalence/ opposition to the Symes case using the discourse of rights. This was hardly surprising given that the case was structured in part as a rights-based challenge. However, some elements of the expert conflict may be better illuminated through a focus on the discourse of needs. Axis 1 Let us begin with Fraser’s first axis of struggle: the struggle to politicize childcare needs. At this level, the struggle is to use the discourse of need to move the issue of childcare from the realm of the private to the realm of the public. At the outset, it is noteworthy that the Symes case was in large measure part of a paradigmatic axis-1 struggle to politicize childcare needs. Symes was seeking to challenge the current boundary between public (business expenses) and private (personal expenses) by invoking discourses of need. She did so using oppositional discourse, a discourse seeking to reveal knowledge “from below,” from the experience of those whose needs were being confined to the private. Through her expert witness, she attempted to show that childcare needs had leaked beyond the realm of the personal to become issues of larger public and political concern – she sought to establish the public nature of the need. Arguing that there had been a transformation in social life, one that had penetrated to the heart of both the family and the economy, she attempted to reveal the existence of women not as either mothers or workers, but as both mothers and workers. This involved a challenge to the gender specificity of the

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supposedly gender-neutral businessperson and the construction of a new social identity: that of the mother-worker. And certainly, the case also illustrated that this oppositional discourse was met by both the government and the nonexpert public’s deployment of reprivatizing discourses: suggestions that these needs were private or family needs, in language seeking to contain these needs in the private realm. For example, recall John Power’s assertions that Symes had made a “personal choice” or a “family decision,” and nonexpert responses like, “There is absolutely no connection between having children and running a business” and “If a couple decide to have children that is their problem.” These are classic examples of reprivatizing discourse. Though axis-1 struggles are an important presence in the Symes case as a whole, there is little evidence that the expert respondents were engaged on this axis. There is very little use of oppositional discourse by the experts, and we hear even less use of reprivatizing discourse. While many of the experts expressed agreement with the Supreme Court’s decision not to allow the childcare deduction, it is noteworthy that none of them suggested that childcare was anything other than an issue for public consideration. If the experts do not appear involved in axis-1 debates, it may be because, on this level, they are in significant agreement with Symes: the gender neutrality behind the ideal worker is false and childcare is legitimately politicized. The variety in their responses does in fact reveal areas of unanimity, and this is one of them: childcare needs are matters of public concern. There are other areas where there seems to be significant agreement. The experts agree that there are a number of injustices in the way that the Income Tax Act deals with issues of women and childcare. There is a general consensus that tax deductions are neither the best nor the only way of dealing with childcare. They agree that tax deductions are more valuable for those who have relative economic privilege, are of little or no benefit to those who have the least economic privilege, and are irrelevant to stay-at-home mothers. On these things, the experts agreed. Expert disagreement becomes visible when one turns from axis-1 struggles over the politicization of need to axis-2 struggles to define the content of that need. Axis 2 Fraser remarked that in axis-2 struggles, one enters an interpretive furnace. That furnace burns brightly in the Symes case, and the flames lick high around two intransigent and interwoven questions: “Whose needs are these?” and “What is needed?” The first of these questions sees the experts struggling with the boundaries of the need and raises questions similar to those we saw in the nonexpert responses in the equality frame: Is this a need of businesswomen? Of gender-neutral businesspeople? Of all women

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regardless of source of income? Of gender-neutral parents regardless of source of income? These questions are hard to separate from the question “What is needed?” The answer depends on the kind of injustice one seeks to remedy: Is it an injustice of distribution or of recognition?31 Theorists of justice have drawn attention to these two different kinds of injustice, one occurring most commonly in the socioeconomic realm and the other in the cultural-symbolic realm. The first form of injustice, Fraser argues, is rooted in economic marginalization, exploitation, and deprivation. The second is rooted in representation: symbolic or cultural marginalization, disrespect or erasure. Each has an organizing structure that has distributional effects; both are pervasive, rooted in systemic practices, and tend to reinforce the other. While these two forms of injustice are rarely independent of each other, for the purpose of our exploration of axis-2 struggles in the expert responses, it is useful to distinguish between them because they often suggest different reparative strategies. These differences in strategy have significant implications for the interpretation of need in axis-2 struggles. Socioeconomic injustices seem to call for a politics/strategy of redistribution, a politics that requires the removal of distinctions. That is, the remedy is to de-differentiate: women and men should be paid at the same rate; people of various hues should have access to the same kinds of jobs. The strategy is to erase false difference. Cultural/symbolic injustices, on the other hand, call for a politics/strategy of recognition. The remedy is to recognize or valorize that which has historically been devalued. Women’s contributions should be explicitly valued, as should the cultures and heritages of specific groups. Strategies of recognition value specificity. But if strategies of redistribution promote de-differentiation and strategies of recognition promote specificity, one feels caught on the horns of a dilemma. This is particularly so when one is dealing with groups requiring both redistribution and recognition. Sometimes the strategies pull in opposite directions. With this tension in mind, we can ask whether different expert responses reveal a stronger concern with redistributional or recognition based needs. What did the experts think was needed: recognition or redistribution? And who did they see as at the centre of this need: businesswomen, women in general, poor women in particular, or parents in general? How did these questions shape their disagreement with Symes about the appropriate content of childcare needs? A concern with issues of recognition is evident in the responses of REAL Women and Kids First. In both cases, these groups argue that a win for Symes would have contributed to the symbolic erasure of the traditional work of mothering that has been done by women. Evoking earlier maternal feminist discourses that emphasized the unique value of the work done by women as mothers, one can see these groups struggling to reaffirm the

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needs of women who give care in their own homes.32 In these cases, the content of need is described in ways that require the affirmation of traditional mothering and traditional families. The injustice identified is an interpretation of need that would, by distributing resources only to employed women, perpetuate the erasure of work done by nonincomeearning mothers. Symes, thus, is not only overly focused on redistribution, the group at the centre of her focus is too narrow. Her definition of need is at cross-purposes with REAL Women’s strategy to revalue mothering. Attention to issues of recognition is also evident in the response of Eansor and Wydrzynski. They had argued that to leave the deductions unchallenged was to sanction the historically disadvantaged status of women in the economy.33 For them, the lawsuit could be defended on the basis of its ability to adjust the law and thus society’s view about women with children who also work out of the home in other economic contexts. Though the case might not effect any large-scale redistribution of resources, it would advance the cause of justice by adjusting views on the recognition plane. Since the point was to foster attitudinal change, the fact that only a limited number of women might see an economic benefit was no fatal flaw. The comments by Mandel, on the other hand, show someone who is focused quite specifically on issues of redistribution. Mandel does not appear to see any issue of recognition present in the case and interprets references to gender as being nothing more than scam attempts to divert resources away from the needy and towards women like Symes and Eberts. Given his focus on injustices of redistribution rather than recognition, it is hardly surprising that Mandel interprets Symes as a “scammer”: at best, inattentive to redistributional injustice; at worst, an active participant in a class-based scam to deprive the country of a more equitable redistribution. In the responses by NAC and the Child Care Advocacy Association of Canada, the focus is also on issues of redistribution. These groups saw Symes making a redistributional claim and took issue with the group that would receive the redistribution. Their concern was that the distribution not be done in a manner that advantaged the less needy. Recall Wolstenholme’s comment: “This is only a very minimal kind of benefit to a very few people who have lots of other options.”34 Similarly, Martha Friendly saw Symes’s claim as assisting only “a privileged group of people.” As noted in Chapter 2, NAC’s goal was to increase the childcare resources available to all women, not only to those who were more economically advantaged. Its concern with issues of privilege also had a specific history in this case. During the 1980s and 1990s, mainstream feminist organizations came under attack for their lack of attention to issues of difference within the women’s community. Charges of being concerned only with issues of interest to white middle-class, heterosexual, able-bodied

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women had left NAC much more aware of its own structural biases. As such, the Symes case was of particular concern. Even if NAC saw the recognition-based injustice, many feminist groups were finding themselves at the centre of disputes about the failure to attend to redistributional injustices amongst women.35 In a new era of at least token attention to multicultural politics (if not always coupled with a very good sense of what to do about these politics), NAC may have felt a justifiable concern that it would be perceived as once again focusing only on the needs of middle-class women. NAC, functioning as an umbrella organization, had to address competing pressures: a commitment to women’s needs for childcare and the belief that the needs of the few should not come at the expense of the needs of the many. Its lack of support for the case may have thus been centred in a political decision to understand the recognition claim against the background of the redistributional injustice. NAC was not necessarily rejecting Symes’s position that childcare was a political need. Nor was it rejecting a needs-based analysis that would include issues of recognition. However, its involvement in other important needs struggles, coupled with its own need to be attentive to the class-based implications of political legal action, may have led it to direct its attention to the distributional side of the equation. In other expert responses, attention may be on the “who” half of the equation rather than on the “what” half. So, for example, it is unclear whether Dianne Pothier (with her reference to green-eyed women) is arguing for a needs interpretation based on issues of redistributional or recognitional injustice. In terms of her critique, it seems not to matter: the definition of need would be flawed in either event. If the injustice was redistributional, then Symes had drawn the boundaries too narrowly. If the injustice was recognition-based, the boundaries were still drawn too narrowly. Pothier doesn’t turn her attention to strategic differences between recognition and redistributional claims because she does not have to get that far. Symes has already failed by drawing the boundaries around “who” too narrowly. Indeed, a concern with “who” was at the centre of many of the axis-2 critiques launched against Symes. But if the experts agreed that need was being drawn too narrowly, it remains difficult to identify in their responses an answer to the question “Whose need is it”? The need, they agree, is broader than just businesswomen. But this begs the question. Is it a need of all working women, be they employees or business-income earners? Is it a need of all women whether or not they are in the workforce? Is it a gender-neutral need that should be defined in terms of parenting rather than mothering? Or, is it a targeted need, one that should be available only to those with the least resources? We hear suggestions of

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each of these possibilities in the expert responses, and these possibilities inflect the struggles on axis 3. Axis 3 Axis-3 struggles presume the legitimate politicization of need and the existence of some relatively uncontested vision of the content of that need. On this axis, the struggle is over the means chosen to fulfill the need. Strategy is the central issue; the debate is how to best meet the need. Two types of struggles seem to be common on this axis. The first type is the struggle between experts: different professionalized discourses compete for the right to determine the best means of administering services to meet the need. A second type of struggle on this axis involves the intersection of professionalized expert and oppositional discourses. Here, oppositional discourses contend with expert discourses, arguing that certain translations of the politicized need into a candidate for state-organized provision create a strong risk that the need will be decontextualized and de-politicized. The fear is that the means chosen will be sufficiently depoliticizing that a new axis-1 struggle may again become necessary. Both types of axis-3 struggle are evident in the expert responses to the Symes judgment. In some of the responses there is a clear debate between experts about the best method of providing for childcare needs. Many experts agreed that the tax regime was an appropriate location for reform but they did not necessarily agree with the form reform should take. There were expert disagreements about a number of issues, including technical questions such as the meaning of “for the purposes of business” and the appropriate interpretation of the s. 63 limited childcare deduction. Some experts argued that the Symes challenge could successfully meet certain recognition-based needs by using tax law to adjust social understandings of the relationship between mothers and the business world. Others agreed that the tax act was an appropriate location for reform and that tax law could be used to meet childcare needs, but doubted that the case could bring about a sufficiently broadranging challenge to ensure that these needs were adequately met. In particular, these experts were concerned with potential redistributional injustices: increased business deductions would be least helpful to the least well off. Further, as groups like REAL Women and Kids First suggested, a challenge to the business-deduction provisions could not attack the Tax Act’s general devaluation of women’s work in the “private” domain. The debate among experts about the specifics of tax dovetailed with debates between the experts and oppositional groups. Recall Martha Friendly’s comment that “using tax breaks to pay for childcare doesn’t satisfy the requirements of social equality.” The validity of the tax claim would be irrelevant to one asserting that tax breaks were the wrong route

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in the first place. Indeed, there were many who were concerned that the likely result of a tax challenge would be a depoliticization of childcare. The attempt to meet childcare needs through taxation might have the contrary effect of privatizing childcare and moving it out of the public back into the private. While there was agreement that taxation was an appropriate place for reform, some experts argued that the Symes case was simply not radical enough and that legislative change was required. Some of the experts seemed to oppose not simply the specific tax strategy adopted by Symes but the recourse to litigation at all. Mandel, for example, argued that rights-based litigation was inherently flawed and that reform must be pursued by activism. Hutchinson also suggested that litigation was simply unsuited as a tool for reform. It is noteworthy that axis-3 arguments about the best means of meeting a need are shaped in part by beliefs about the risks of various strategic choices. Some of the responses to Symes reflect a concern that litigation might result in symbolic gains at the expense of actual childcare needs. Even if there was merit in Symes’s approach, was there a risk that the government might respond by removing the childcare deduction completely, leaving women without even the limited benefit that s. 63 provided? Observations on the Expert Responses Fraser’s model directs our attention to various axes of conflict in the struggle over differing visions of need. An examination of expert responses against this model suggests that some of the conflict surrounding the Symes case might be the kind that follows inevitably from struggles over need. Different frames reveal different ways of seeing the case and, even if one picks just one frame – childcare needs – the presence of simultaneous axes of struggle may result in discussions that can seem to place people at cross-purposes: the kinds of arguments one makes on axis 3 about fulfilling a need may be working against axis-1 arguments focused on legitimating the political nature of the need itself. When looking at the expert response in terms of this model, it also becomes apparent that some of the “feminist conflict” may have been more imagined than real. Symes and her critics had much more in common than might be apparent on the surface. They agreed that childcare was an issue appropriately in the public arena. They opposed those who argued for the reprivatization of childcare. They agreed that tax reform was not the best method for providing childcare. They agreed that current tax provisions provided the least benefits to those who were in the greatest need. The majority of disagreements involved questions of strategy: what was the best avenue to pursue in order to gain the largest benefit for those in the greatest need?36 Certainly, they had more in common than

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is apparent if the question being asked is simply, “Should Symes have won or lost?” or, worse, which should trump – class or gender? Intersectional problems are often high-centred on the conflicting axes of needs struggle. Indeed, cases involving the intersection of power and wound – whether articulated using frames of equality, public/private, choice and responsibility, or need – may typically involve these conflictual struggles over need. Questions of limited resources are important in these debates. How should limited resources best be allocated in a world where resources are continually outstripped by needs? These needs debates typically involve discourses that assume certain visions of power, privilege, and disadvantage. Sometimes the debates explicitly address scarcity of resources. It is interesting, however, that important debates about scarcity are often deflected and replaced by more symbolic struggles about the construction of women, men, mothers, parents, selfishness, and selflessness, as well as struggles about strategy. By looking at these cases, both using frames and axes of struggle, one can better anticipate the kinds of debates that may characterize discussions around cases involving the intersection of power and wound.

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9 Lessons to Be Learned and a Case to Be Remade

In this last chapter, I return to the question that motivated my exploration in the first place: At the intersection of power and wound, can the law be used to effect progressive social change? Does a case like Symes provide social activists with any useful direction or does it leave one confronting a dispiriting impasse? In an attempt to understand the perils of this intersection, I have attempted to unpack the Symes case on a number of levels. In Chapter 1, I reviewed some moments in the history of intersectional theory, a theory born out of feminism’s attempts to deal with the tensions of universality and particularity. This theory affirms the need for a micro-political approach – one that takes seriously the race, class, sex, and physical ability of specific bodies in specific contexts, one that attends to experiences of both agency and oppression. In Chapters 2 and 3, I laid the foundation for an historicized theory of intersectionality. In order to contextualize the strategy adopted by Symes, I looked backwards and explored what came before. Here, it was shown that social discussions about mothers and children have long been complicated by issues involving the intersection of privilege and disadvantage in women’s locations based on race and class. Women’s gains and losses have been closely tied to intersecting social, economic, and cultural forces. Neither the legislative nor litigative stage has been a scene of constant success or failure. In Chapter 4, I sought to bring out the drama of the Symes case. In the unfolding of the case, multiple discourses intersect, each suggesting its own way of seeing the problem, some discourses supporting one another, others opposing. In this drama, legal discourse is shown not to be autonomous but threaded through with and sustained by discourses from many other disciplines. Certain discourses, especially those focusing on equality, privilege, and choice, emerge with significant frequency. Indeed, it may be that discourses about privilege, equality, choice, and obligation all play unusually important roles at the intersection of power and wound.

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These discourses were front and centre in Chapters 5 and 6, where I considered the options and limitations on what courts can do when confronted with complex intersections of power and wound. I asked the same question of the Court that was asked of Symes: Was the Court powerful or limited? While agreeing that the Court was limited in important ways, my focus was on the Court’s deployment of the rhetoric of choice and constraint and on the ways that this deployment served to reinforce the gendered language of selfishness and selflessness. In Chapters 7 and 8, I turned my attention from the specifics of the legal judgment to the public debate surrounding the case. Using the device of frames I demonstrated the ease with which complex intersectional problems generate public monologue as much as public dialogue. Focusing on the expert public, I also attempted to explore the ways that these kinds of problems may typically generate struggles along a number of intersecting strategic axes. Focusing on needs, I argued that the case can help illustrate how conflicts over strategy add another dimension of complexity and intersection to an already difficult problem. While this approach to the public response may help to tease out the complexity of the problem in the Symes case, the resulting complex intersections could easily leave one feeling overwhelmed by the magnitude of the problem. Indeed, it is easy to see why the case left many feeling trapped in a dispiriting impasse. However, building on the insights of the earlier chapters, I argue that a complex case like Symes need not lead to a pessimistic stance regarding the possibility of progressive social and legal change. On the contrary, I argue that the case provides significant room for optimism. I suggest that the first order of business is to reformulate the central question raised by the case, so that the focus is on what value can be found in the case. Such a reformulation, I argue, is facilitated by a shift of metaphors for thinking about power. In particular, I suggest that sports metaphors may be both appropriate and useful. Using the sports metaphor, I return to the case and ask what can be learned from asking different kinds of questions about the plays used and the participation of the major players. Reformulating the Question As I have worked on this project over the past several years, the question that has been most frequently asked of me is this: Should Symes have won or lost? I have felt a continual resistance to the question. This resistance arises from my strong sense that the very question flattens the complexity of the case in ways that make it difficult to engage in a constructive discussion. When the question comes down to “Should she have won or lost?” it becomes nearly impossible to talk about the complex intersection of power and wound or of the difficult way that social and legal

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disadvantages intertwine. The question forces one to state a preference for one of two equally unappealing options: gender disadvantage or classbased disadvantage. Such a choice makes the horizon bleak and sceptical disillusionment almost inevitable. In saying this, I am not suggesting that the question of who wins or loses is unimportant: indeed, at the end of the day, the court must grant or deny a claim and so, on one level, one is forced to stand with Symes or against her. And, were the question of win or loss to be the central one, I would have to say that I find the reasons of the Supreme Court dissent far more persuasive than those of the majority. However, one does not learn a great deal from asking simply whether greater justice would have flowed from a “win” or a “loss.” Certainly, despite my preference for the dissenting reasons, I remain unconvinced that a win for Symes would have resulted in either the progressive changes desired by supporters or the regressive possibilities feared by detractors. Even had the dissenting reasons taken the day, there would have been nothing standing in the way of a governmental decision to amend the Income Tax Act to state unequivocally that business expenses do not include childcare. A focus on the question of whether Symes should have won or lost does not take one far into the complex intersectional issues raised by the case and invariably requires a prioritization of flattened commitments. I argue that, because of the potential dispiriting impasse of class vs. gender, it is necessary to reformulate the central question and ask instead: What positive use can be made of cases located at the intersection of power and wound? Shifting the Metaphors for Power Power, Foucault argues, is not a capacity owned as much as a process shared: all individuals both enact power and are acted upon by it.1 I take Foucault to be right about power. From this perspective, the Symes case does not pose the problem of “bad facts.” It is an archetypal case: all individuals are located at the intersection of power and wound and what may be unique about the Symes case is how clearly it manifests this. Sometimes the mix of power and wound is less obvious but it is no less present. However, as Steven Winter observes, current metaphors for power make it difficult to avoid falling into the pattern of searching for the person responsible.2 Patricia Mann suggests one potentially powerful substitute metaphor – sports:3 A sports metaphor suggests the rich array of possible institutional and domestic arenas, as well as the many different regulations and game plans that may inform a particular fight. It captures the odd combination of immediate seriousness and intensity, even bloodiness, of the gendered, racial, and economic struggles in which we find ourselves embroiled, while

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at the same time suggesting the temporal and conceptual limitations of our efforts and goals on any particular day. We grapple with confusing people and situations, participating to the best of our abilities in processes whose significance may not become clear until long afterwards, in distant places ... A sports metaphor counsels us to maintain our social bearings by focusing on our footwork and our jabs, so to speak, attempting to make the best of each round. When the bell sounds, we return to our corners and our friends, reassessing strategies, marking the differential abilities and tactics of colleagues in neighbouring rings, often sharing information and learning from them.4

Mann’s metaphor makes me think of my grandfather. My grandfather would have liked Patricia Mann. Or, at least, he would have agreed with her assessment of the value of the sports metaphor. My grandfather Doral loved sports. He was an Olympic javelin thrower, boxing champion, professional baseball player, equestrian, poker player, and practical joker par excellence. He loved to play and he loved to watch. Both he and my mother sat together in the bleachers and watched every one of the basketball games I played in my short stint as centre on the grade seven girls’ basketball team. From there, I moved to the sidelines and joined my mother and grandfather in the bleachers, watching games played by my siblings and cousins. Doral never seemed too concerned about the scoreboard, pointing out good moves made by players on both sides. Nor was he bothered by the occasional bad call from the referee: no one can see the whole court and sometimes a bad play is missed. But if he suspected the referee had a blind side and was regularly missing things, he would loudly start calling the fouls out to the referee from the bleachers: “Hey, Ref! Offensive foul, number 23!” This hurt a bit when the fouls he called out were done by our team rather than to our team. Surely there was something to be said for team loyalty? “If you are going to call the fouls, you need to call them on both sides, and if the ref has a blind spot, he needs to hear about it,” he’d say. From my position on the sidelines, I listened to my grandfather and mother discuss the games, the strategies, the players, and the coaches. I listened to them identify the players who could be made mad enough to foul out and suggest strategies for shutting down the players with three-point shots. I listened to them compare the game being played with other games long past. I gradually came to suspect that the stories I was being told were not just stories about basketball but stories with a much broader meaning. Indeed, I began to see that the stories told in the bleachers had much more to teach than did the numbers recorded on the scoreboard. In the discussion that follows, I return to the Symes case through the sports metaphor and ask questions not about who should have won or lost

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the game but about what this game has to teach us. In particular, I look at the players themselves: Symes, the government, the Court, and public commentators. What can be learned by looking more closely at each of them and by thinking of them as fellow players rather than simply as friends or enemies? Postgame Analysis: Lessons to Be Learned Friends and Enemies With friends, we pay attention to what they say and do. With enemies, we treat their words as doing something. That is, we assume their language is strategic, not authentic, that they try to look truthful to avoid getting caught and losing credibility. – Joseph Vining, The Authoritative and the Authoritarian5

Much of the commentary surrounding the Symes case reflects Vining’s insight. That is, there is a tendency to treat various parties as either friends or enemies, and to extend accordingly more or less trust to the language that each uses and to the purposes being pursued. There were conflicting views about who was the real enemy in the case – Symes? The government? The Court? At this juncture, I am interested in what might be learned by looking at the public portrayal of Symes as the enemy: as an inauthentic, untruthful actor. As an example of this public portrayal, I return to Michael Mandel’s discussion of the Symes case. Mandel writes that Symes’s actions were misguided at best, disingenuous at worst. Concerned about the class-based implications of the case, he argues that Symes was perpetuating a scam on other women. He highlights what he sees as her deliberate attempt to hide the ways that a win for her would have – according to the “iron laws” of tax – led to the disadvantagement of others on a class basis, saying: There is nothing in the record to indicate that the failure to speak up for employees was merely strategic on Symes’s and Eberts’s parts, in other words that they were after anything but the goal of equal rights for businesswomen like themselves ... Why did they not claim that equality required the full deductibility of childcare expenses for all women, employers and employees alike? Because that would have been to complain about class discrimination and not just sex discrimination. Even if they had been inclined to take such a position, it would have doomed their case to failure because it would have called into question the whole basis of tax. The only way to win was to align themselves with their class

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at the expense of their gender. Of course Symes didn’t put “in issue” the question of “disadvantagement.” Would you, when it would transform your equality claim into a claim of inequality? Putting “in issue” the question of disadvantage would have doomed Symes’ case because it would have revealed that the equality she sought was equal access to a scam ... Symes was trying to use the trump card of sex equality to give her claim extra credibility, so there was no avoiding the fact that this was not just any scam, but a scam against women too, the vast majority of women who were not in business for themselves, including women like Beth Symes’ children’s nanny.6

He sees nothing more significant in Symes’s actions than an attempt to selfishly perpetuate an unfair class-based advantage. Indeed, the actions of Symes’s lawyer, Mary Eberts, are subjected to the same critique of selfishness and disingenuity. The two women failed to establish a commitment to anyone other than themselves. Their deployment of gender was nothing more than a strategic move to advance their class-based interests at the expense of other women. Mandel’s observation about the potential damage of the tax claim is important and I do not wish to diminish its significance. But what interests me here is the way that this focus on class leads him to conclude that the gender claim was a mere “scam.” His dismissal of the specific gender claim does not reflect a blindness to gender inequality. Far from it. One of his arguments against the legalization of politics is that the turn to the courts erodes democratic restrictions on private power, creating additional binds for women, particularly as one travels down the class ladder. His dismissal of the gender claim is based on his commitment to the class claim. Charter politics, he points out, has a different impact on the poor and the wealthy. But while he does not see gender as irrelevant, he sees Symes as having used it strategically. In this context of the Charter claim, Mandel see Symes as an enemy. And the language of indictment is the language of selfishness: she did not represent the interests of all women, she was concerned only about her own pocketbook. I should note here that I have chosen to look closely here at Mandel’s discussion of Symes in part because I see him as friend, not enemy. As an academic, Mandel demonstrates a deep commitment to social justice and is concerned about the implications of Charter jurisprudence in Canada. Much of his writing has emphasized the negative class-based implications of Canadian politics and his observations about class-based injustice are important. I trust his good intentions and it is for that reason that I have chosen his comments as a way of focusing on what I see as a very problematic deployment of the language of selfishness.

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The Critique of Selfishness Mandel was not the first person to accuse Symes of being selfish. Nor was Symes the first mother to have her choices assessed as being selfish in light of her maternal responsibilities and economic situation. Allegations of selfishness often emerge during debates about maternal employment. The question posed is always: Have women’s decisions to work been a matter of necessity or a matter of selfish abdication of domestic responsibilities? Following the closure of Canadian day nurseries established during the Second World War, the government urged that “mothers shouldn’t shirk their responsibility in caring for their children at home in order to boost what is already an equitable income by working daily.”7 And in Smith (1940), the Court noted that “the wife’s services as custodian of the home and protector of its children are ordinarily rendered without monetary compensation ... Here the wife has chosen to employ others to discharge her domestic function.”8 In Namack (1971), the Court took for granted “that men and women sometimes perform different roles in our society.”9 Throughout the 1960s and 1970s, even while working to eradicate gender barriers to female employment, Canadian governments continued to assert that “the primary responsibility for child care must rest with the family.”10 These same threads of choice, responsibility, and selfishness emerged throughout the conduct of the Symes case. During the trial, John Power responded to Symes’s claims about adverse-impact discrimination by wrapping the childcare burden in the larger question of “family responsibilities” and “family decisions.” Her husband, he argued, made enough money that she really didn’t “have” to work. He used the image of the privileged white woman to paint Symes as economically advantaged, choosing to work where she didn’t need to do so and seeking to make others carry the costs of her self-interested actions. Justice Décary at the Federal Court of Appeal argued that the tax provision favoured women, that Symes was asking for privileged treatment, and concluded that professional woman were not a disadvantaged group suffering discrimination. During the oral hearing before the Supreme Court, Justice Major asked whether the woman seeking a tax break wasn’t simply trying to avoid the economic costs of her own choice to have a child. Justice Iacobucci, for the majority of the Supreme Court, chastised Symes for her self-interested approach: her attempts to distance herself from other women, to skew evidence, and to avoid attention to the needs of others. Even after the case was done and finished, issues of choice, responsibility, and selfishness continued to resonate in both expert and nonexpert public discourse about the case: Symes chose to pursue her own interests to the exclusion of the interests of others – her choices were selfish. Any conclusion that a particular behaviour is selfish depends on a host of often unarticulated presumptions about the nature of the self, the scope

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of free will, and the normative standards for male and female moral conduct. These presumptions powerfully shape social assessments concerning selfishness. Certainly, Western legal and social systems reflect a profound commitment to a conception of the self as relatively autonomous and selfdirecting. This commitment has been questioned by various social theorists who have asserted that the Western sense of self is little more than a recent, particular, and contingent invention of liberal society. Indeed, the notion of the self as self-directing in the pursuit of preferences has been subjected to extensive critique based on the possible social construction of preferences themselves. If preferences are constructed, the social commitment to “choice” is in some measure undermined: a given social consensus may be the result of operations of power rather than of the exercise of free will. Feminist theorists have added to this critique the observation that the Western self is not a neutral construct but is deeply gendered. The very concept of autonomy, they argue, has been androcentrically theorized, reflecting primarily the experiences of men and inadequately theorizing issues of care and connection. And what of “virtue”? Is it, like “the self,” a concept shaped by issues of gender? Certainly, proverbial wisdom, – with its query “Who can find a virtuous woman for her price is far above rubies?” – weaves gender into the conception of virtue.11 Virtue is not gender-neutral. There are quite different codes for male and female goodness and female virtue is woven tightly to the moral imperatives of selflessness and sacrifice.12 Much of the nineteenth-century notion of separate spheres was explicitly based on the accepted wisdom that women were simply more virtuous than men, and that woman had a greater capacity for self-sacrifice. As Michelet insisted, it is women’s capacity for self-sacrifice “which places her higher than man, and makes her a religion.”13 The imperative of female selflessness and sacrifice was an explicit component of the nineteenth-century woman’s motherly virtues. The virtuous woman was not only to care selflessly for her family but to tame the chaos of modern society. At the founding convention of the National Council of Women, Lady Aberdeen instructed the women on their grand mission – “mothering”: [Woman] must learn that if the poor around her doors are not cared for, the orphans not housed, the erring not reclaimed, because she was too much engrossed in her own house to lend a helping hand, the results of her self-absorption may be in the future to provide pitfalls for her own children whom she so desires to cherish. The high ideal of a pure and holy family life is the chief strength of all nations.14

Unless woman was busy caring for the poor, the orphan, and the errant, even her selfless sacrifice in the interests of her children was reconstructed

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as self-absorption. Indeed, female virtue provided the necessary corrective to the accepted vision of male society as “nasty, brutish and short.” If the male-gendered autonomous self was theorized with inadequate attention to issues of care and connection, the female-gendered concept of virtue nonetheless provided the avenue for the provision of care. While selfless behaviour in the service of others may indeed be virtuous and provide a necessary corrective to the heartless world, a rhetoric of virtue constructed on the foundation of selflessness and sacrifice fosters and perpetuates systemic oppression.15 Not only does the rhetoric foster a gendered distribution of the socioeconomic costs of care, it also promotes the vilification of women who fail to carry their burdens without complaint: the selfish woman is responsible for personal and social failures of care. The selfish mother is particularly vilified. Indeed, the image of the selfish mother is a powerful one around which a great many social fears congeal. Indeed, the image of the selfish mother raises the fear of all that seems wrong in society; juvenile delinquency, criminality, poverty, and government deficits are seen as the result of failures of mothering. The rhetoric of selfishness, a rhetoric commonly directed against the working mother, resonates with the language of blame, scapegoating, and moral panic.16 In such a context, the emergence of the discourse of selfishness in Mandel’s analysis of Symes requires examination. To what extent does his deployment of the language of selfishness subvert his social justice agenda? Mandel, with his focus on distributional injustice, is clearly worried about a widespread legal and social failure of care. However, by invoking the discourse of selfishness against a working mother, his language dovetails seamlessly with the punishing discourse of female selfless sacrifice. In his haste to draw attention to the injustices of class-based injustice, he measures Symes’s actions against the requirements for the sacrificing virtuous woman, finds her to have failed, and constructs her as the enemy. His indictment of her reinscribes the standards for selfless female virtue – standards that are not only beyond the ability or desire of many women but are also in many ways incompatible with Western society’s own vision of the autonomous, rationally interested self. Indeed, who can find a virtuous woman? In critiquing the discourse of selfishness I am not denigrating the concept of virtue. I am not speaking against the value of altruism, nor denying the self-fulfilment and joy that may come to men and women alike through acts of selfless giving and sacrifice. My argument is not that men and women should be equally entitled to act selfishly. Nor am I suggesting that one cannot assess behaviour and conclude that it is inappropriately selfish. I am arguing simply that it is crucial to pay attention to contexts where the discourse of selfishness surfaces. The image of the selfish mother is a powerful one and the fears on which it rests can and should be taken

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seriously. There are consequences for a society that suffers from the “failure of care.” The discourse of selfishness can provide an opportunity to discuss social failures of care but it may also serve to reinscribe the imperative of oppressive selflessness and sacrifice. It is important to attend to the differences between “female selfishness” and “failure of care.” Mandel, relying on metaphors of war and constructing Symes as the enemy, is unable to provide more than a superficial analysis of the complexities of the intersection of power and wound. On his terms, the resolution appears simple: selfless action in the service of others. Treating Symes as friend rather than enemy (or at least as a fellow player), one can look at what she said and did, not for evidence of untruthfulness, but for insight into the ways self-interest plays out at the complex intersection of power and wound. This shift of focus reveals her self-interested behaviour to have greater depth of both complexity and possibility. The fact that Symes, a feminist lawyer, stood personally to lose or gain was seen by many as evidence of her selfishness: she wasn’t “really” interested in equality for women; she was “really” looking out for her own economic interests. Seeing her as friend, and foregrounding the problem of representation, I see her actions as motivated by a deeper social commitment. Feminist litigators have long struggled with difficult questions about representation and legal change. How does one go about selecting cases behind which to invest women’s resources and energies?17 How does one find the perfect plaintiff – one who can stand up to the sometimes gruelling experience of having one’s whole life up for scrutiny and assessment? How does one represent one’s client in a fashion that both advances the interests of women as a group and yet also advances the interests of that specific woman? How does one deal with situations during the conduct of a given case where the interests of women “as a group” may be quite different from the interests of the specific female plaintiff? Symes, an experienced litigator, knew the kind of scrutiny that a plaintiff making the childcare claim would be subjected to. It would not have been impossible for Symes to locate another woman to serve as the plaintiff in the case. Her economic interests would have been advanced had her client won but she would not have had to lay her own life open before the Court. By constructing herself as the plaintiff, Symes created an occasion where complex questions about childcare and the public/private divide could be litigated. Rather than search for the perfect plaintiff or subject some other less than perfect plaintiff to the legal process, she placed herself at the centre of the case. The role of interested lawyer and plaintiff converged for the purposes of this case. Symes would be the target of cross-examination. By challenging the characterization of childcare as a private issue, her personal interests could be made to serve the interests of a greater number of women. If one sees Symes as friend and pays attention to her words and

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actions, her decision to put herself at the centre of the case can be seen as an example of courageous commitment. To see her behaviour as having an element of courageous commitment is not to dismiss elements of self-interest. Self-interest must be taken seriously, if only because it serves as a reminder that the desires and needs of women are multiple. For women located at intersections of power and disadvantage, there may be a number of internal conflicts in self-interest. The conflicts should not be minimized by assessing self-interest in too simplistic a fashion. So, for example, Mandel was correct to note that Symes had an interest in being able to take advantage of a benefit available only to businesspeople. However, in light of her long-term commitment to the women’s movement, it was simplistic to suggest that her interests in gender equality would so quickly vanish in the face of a possible tax deduction. Further, there is great danger in the argument that Symes was selfish because of her failure to adequately represent all women. Symes was not representative of “all” women. Indeed, the insight of much intersectional theory is that no woman is representative of all. This does not, it seems to me, lead one to conclude that it is impossible to speak about women. It does, however, suggest the importance of women analyzing the implications of gender from the perspective of their local situations. Symes was representative of women located at the intersection of privilege and disadvantage. Because she was located at such an intersection, the case demanded a complex rethinking of the relationship between choice and exclusion. Had the case been brought by a woman who occupied a dimension of unadulterated disadvantage, this complex rethinking would not have been required. Instead, a court may have been inclined to grant a remedy on the basis that there was clear disadvantage. Such a result would merely have been an application of the principle that people should not be made responsible for things beyond their control. It would not have allowed an exploration of the more complex problem of intersectionality raised by Symes. And what of the Symes case? Symes was well aware that a win on this case would not solve the complex inequality of women in the family and the market. She also understood that a win would not provide an immediate tax benefit to employed women. This does not mean that she was unconscious of or uninterested in the needs of employed women. On the contrary. She was of the view that a reclassification of childcare expenses as business expenses would create a necessary opening to bring subsequent challenges about the childcare needs of employed women.18 One might disagree with her choice of strategy but, if one treats her as friend, it becomes clear that the discourse of selfishness is not very helpful in theorizing the kinds of strategies that may be available to those located at the intersection of power and wound.

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Recognition Meets Redistribution: A Return to the “Intersectional Impasse” A game is far more than its final score; much can be gained by reflecting on the plays conducted in the course of a game. Symes provides us with a valuable opportunity for exploring the weaving together of claims based on redistributional and recognitional injustice at the intersection of power and wound. In Chapter 8 I explored some of the conflict among experts concerning the deployment of recognition- and redistribution-based claims in the Symes case. In that context, the central question was whether or not Symes should win and, because of this, it was not surprising that a great deal of attention was paid to prioritizing the two forms of injustice. Since the focus here is on what can be made of the case rather than whether Symes should have won or lost, it is not necessary to prioritize the two forms of injustice. Indeed, it is possible to look to the intersection of recognition and redistribution not as a mistake, failure, or impasse, but as an important engagement at a crucial site of interaction. Symes, in bringing a challenge to the tax code, was making two claims, each radical to the core. One claim involved issues of economic redistribution, the other, issues of recognition. I look first at the radical core of the recognition claim. The recognition claim centres on symbolic or cultural marginalization, disrespect, or erasure. Seriously taken, it assumes the centrality of the individual’s desire for the recognition of others: to the extent that the desires, obligations, and achievements of people are not properly recognized and rewarded by others, to that same extent, human value is diminished.19 Dealing with issues of recognition in the context of the pornography debates, Mann argues that it is critical to understand asymmetries within patriarchal systems of recognition. I suggest that these asymmetries also provide a way of understanding responses to the Symes case. Mann’s argument is this: “Patriarchal power was a power that existed at its very source in the subjunctive form, in the communication of possibility.”20 That is, the social mechanisms of male sexual dominance had their roots in recognition relations. Both men and women understood the capacity of men to act upon women in ways that would leave indelible marks.21 The point is not that men raped or impregnated. It was the communication of the capacity to do so that was socially significant. Because of the shared social knowledge of this capacity, it would not be necessary for a man to act: a look could be enough to communicate threat or possibility (and this whether or not a given man wished to communicate the possibility). Women’s lives, Mann argues, have been constituted in great measure by these relations of “anticipatory recognition.” Women began by recognizing what men could potentially do to them. Their own sense of agency then depended on developing strategies within patriarchal kinship

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relations for dealing with this possibility: withdrawing from public spaces, seeking out marriage, accepting the obligations of a subsumed nurturer, nurturing and supporting male social potential. Mann emphasizes the interactive quality of these recognition relations. The ability to rape would not only gain social significance to the extent that the ability was recognized by women as having particular social implications but, in addition, a woman’s recognition of those social implications would motivate female strategies to control the conditions under which rape/impregnation might occur. Indeed, she argues this anticipatory “female recognition and encouragement of prospective male deeds served an important role in empowering the individual economic and political activities of men within liberalism.”22 This brings us to the problem. Social and technological change has altered the material conditions of women’s existence and put greater power into women’s hands. Social enfranchisement has given women rights to participate in the economic and political spheres. Technology has given women better control over their reproductive destinies. Since relations of recognition developed interactively, one might anticipate that changes in women’s control over their lives might also alter relations of recognition. But the patriarchal gaze, Mann notes, has become in many ways autonomous. Social responsibilities and burdens have been redistributed across gender lines but social recognition has not. In this new world, women are expected to position themselves at all places within the structure of society and to perform alongside men. However, the old patriarchal sign systems continue to recognize them, if at all, in the old ways. In the psychic struggle for recognition, women are confronted with a patriarchal sign system riven through with repeated instances of nonrecognition. Women’s important contributions to shared enterprises go unrecognized, with women often finding themselves recognized “in spite of their womanness” rather than as women. The patriarchal gaze, Mann points out, is newly experienced “as a denial of female selfhood ... insofar as women experience themselves as full social selves within various roles.”23 In her challenge before the courts, Symes placed the recognition problem front and centre: women share in the burdens and responsibilities of the business world but are denied full recognition of their participation through gendered codes for business. Her specific example was the Income Tax Act that, she argued, distributed not only economic resources but also social recognition. The codes for business, codes reproduced in the Act, were developed within an historical context where women were subsumed nurturers whose crucial work in the private realm facilitated the emergence of the ideal worker in the public.24 This model of the business world prescribed two separate roles for women: worker or mother. Women could be recognized as workers but only to the extent that their work reflected

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the abilities of the androcentrically constructed ideal worker. A woman’s success as a worker would be in spite of her status as a mother. The public/private divide was at the heart of the recognition claim. In demanding a redrawing of the boundary, Symes was directly challenging legal and social systems of knowledge about women and mothers. The point of such a challenge was not simply to move women’s work from the private to the public realm. Certainly, women need access to both public and private spaces and feminist analyses of the public/private divide have illustrated that neither public nor private is necessarily a source of safety for women. The point was rather that since the divide has implications for the recognition of women as full social selves, women should (at minimum) play a part in the social debates about the location of the divide and the meaning to be given to women’s experience of it; women should be recognized as equal participants in the construction of meaning, particularly in the construction of the meaning of their own lives. At its most radical, the claim that childcare was public and not private was a demand for recognition. It was a demand that the business provisions of the Income Tax Act reflect and acknowledge the contributions of women, that the government acknowledge that work cannot, for a great many women, be separated from responsibilities for childcare. The structure of the entire workplace is predicated on a failure to see those responsibilities. Women’s strategic decisions to work, to pay for childcare, or to stay home, must be understood against a context in which those decisions are sometimes determined by relations of recognition. This is an important point because it answers the concerns expressed by groups like REAL Women and Kids First that Symes’s approach failed to account for the care women provide in their own homes. The recognition claim here was not one that argued for a replacement view of what a woman was. That is, she was not devaluing the experience of women working in their own homes. Rather, her argument was that women, whether in the home or in the workforce, faced repeated instances of nonrecognition and repeated exclusion from the forums for negotiating the social meaning to be given to their actions. The recognition claim was far more radical than simply the need to recognize one specific kind of woman. Symes’s argument would have been equally apposite for those women who stayed home and found their choice to be treated as a reinscription of the stereotypical role for women. But the struggle for recognition is complicated because of the interactive nature of the enterprise. To be recognized, someone must be willing to recognize you. What is required is a shift in the lingering patriarchal views of women – for men to recognize women for what they are rather than in spite of what they are. However, the superior power of men under the patriarchal system has meant that they could (to a large extent) defensively

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maintain their power by simply ignoring those who would not recognize their power. Indeed, in some cases, nonrecognition may not be so much accidental as a refusal of recognition: a refusal to see the relations of power in a different fashion, a resistance to giving up the old set of beliefs about men and women. For women to simply accept these instances of nonrecognition, however, is to accept a position of inferiority that their activities, responsibilities, and social position belie. To write the struggle for recognition off as merely symbolic is to miss the important psychic dimensions of the project. Recognition is crucial to one’s sense of self. Indeed, the need for recognition has undoubtedly played a role in the creation of women-only (or black-only or francophone-only) groups, where there is at least some degree of recognition. While such groups may provide much needed places of temporary rest, they are just that: temporary rest. There is no “home” to which one can return. For those who have been excluded from the system – for those who suffer from societal-wide nonrecognition – a strategy of self-recognition is simply inadequate. Women thus find themselves in the position of needing to rewrite the codes of recognition. But can someone force another to see them differently when the other does not wish to see differently? Perhaps not. However, here I agree with Mann that active strategies are required in order for women to gain more appropriate forms of social recognition.25 The Symes case was an attempt to construct an active strategy. While the demand for increased social recognition is not an idle project, neither is it a complete project. If redistribution and recognition have come uncoupled in ways that have left women with a heavier burden of social responsibilities without the corresponding increase in social recognition, then it is also the case that successful recognition-based strategies may not bring with them corresponding reductions in redistributional injustice. Boyd is undoubtedly correct to note that while a focus on recognition does usefully emphasize the benefits of increasing the voice of women in politics, the legal system, and other institutions, it may allow issues of material injustice to drop off the agenda.26 Indeed, too narrow a focus on issues of signification and discourse may take the focus off the need to understand “the complex interactions between discourses and lived actuality, or social relations.”27 This leads us back to the Symes case. Symes’s challenge explicitly linked together issues of both recognition and redistribution. She sought not only recognition through the revaluation of women’s work but also a concrete monetary redistribution of economic resources to accomplish this revaluation. At its most radical, the redistributive element of the challenge was much more than a simple tax grab. Her claim was a direct challenge to the alleged gender neutrality of taxation – one of society’s major vehicles for

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the redistribution of resources. The Income Tax Act, she argued, did not, like Robin Hood, simply take from the rich to give to the poor. Its redistributional effects were far more complex and often far less just. Indeed, her challenge to the gendered interpretation of “personal” and “business” expenses foregrounded the ways that redistributional and recognitionbased injustices are woven together. Of course, gender is not the only dimension along which resources are unequally distributed.28 The redistributional critics rightly pointed out that the specific equality claim being made in the case was unlikely to lead to a concrete redistribution of social resources towards those who were in most need of redistribution. Criticism of Symes’s strategy usefully drew attention to the complexity of the public/private distinction and of redistributional injustice. And indeed, power and wound do often intersect in ways that may tend to hold some forms of injustice firmly in place. Strategic concerns, however, are not necessarily rejections of the underlying arguments that there are systemic inequities in taxation’s redistributional process nor a failure to appreciate the need for attention to the symbolic. Discursive challenges clearly relate to resource distribution in complex and dialectical ways. A truly transformative politics requires the elimination of both kinds of injustice. As Boyd argues, though it may be useful for heuristic purposes to separate strategies of recognition and redistribution, such separation “may diminish our attention to the intersectionality of indices of oppression ... In a society whose sense of social justice appears to be eroding, these intersections must be kept ever present in analyzing new developments and developing strategies.”29 There are real risks in failing to attend to either recognition or redistributional claims: both claims are partial, both are incomplete, but both are necessary. And in the Symes case, both were present. The resulting intersection of power and wound was inescapable. Critiques of the case and the heated public debate about it were not evidence of a dispiriting impasse, nor of the failure of feminist theory. On the contrary. These critiques illustrated the health of an academic and activist movement struggling to hold on to contradictory truths, struggling to identify and think through the conflicts inherent in an intersectional reality. The challenge was less to determine which truth should reign than it was to grapple with the experience of simultaneously holding on to contradictory truths. This very uncomfortable experience does provide some insights that may help dispel a sense of impasse. Certainly, it helps to resize the conflict by driving home the ways in which any particular legal game is limited. The critics were undoubtedly right that a “win” for Symes would not have unravelled the injustices riven through the Income Tax Act. Indeed, it may well have increased the depth of some dimensions of class-based injustice. But this does not mean that the case was ill-conceived or that the solution

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is to be found (as the Supreme Court majority suggested) in locating a better plaintiff. The search for a different plaintiff, a different argument, a different set of facts, is not only a search for the holy grail, but a search for a nonexistent Archimedean fulcrum. The insights of Foucauldian and intersectional theory should teach us to be suspicious of arguments that suggest we look elsewhere. The challenge is rather to look everywhere. A different plaintiff would be marked by different blends of power and wound, blends that would require us to address different questions. Symes was not the wrong case. Indeed, if one wants to better understand the intersection of gender disadvantage with class privilege, Symes was very much the right case, and her argument, the right argument. The Government as Friend If I am arguing that it is not useful to characterize Symes as the enemy, I am also arguing the same of the government. It also can profitably be seen as friend. However, to treat someone as friend is not to treat them uncritically. It is, rather, to pay attention to what they say and do, to look for the best in their actions, and to think critically about their shortcomings. It is also to do this in a context where the relationship is ongoing and where the parties have an investment in maintaining or improving their relationship. As Winter points out: “Many find politics impossible or futile without the identification of some villain who can serve as a focal point for mobilization. This is perhaps acceptable when the villain is someone to be vanquished and then relegated to the proverbial dust-bin of history. But it is quite another matter when the demonized foe is someone with whom one is deeply enmeshed on a day-to-day, even intimate basis.”30 While this comment rings with the greatest truth in the context of intimate relationships, it also may be apposite in the context of traditional politics. The government is not an entity wholly separate from the people and it may not be useful to see it as a villain to be vanquished. A brief review of the history laid out in Chapter 2 should make it clear that government has always been something more than simply an opponent of either women’s interests generally or childcare interests in particular. For while government support has rarely met the standards expected of it, it is also the case that government has listened to, considered, and debated questions about state-provided childcare benefits. While those benefits may often have fallen short of what was desired, Canadian women have had the experience of working with government and successive governments have put in place systems that have provided at least some benefits for some women. While lack of success has sometimes been attributed to lack of concern, more often the real issue has been the perennially

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political one of jockeying for limited resources. Indeed, perhaps the fairest assessment of the government’s actions in the Symes case comes from acknowledging the complexity of the redistributive argument in the context of limited resources. One of the problems in the Symes case is that the explicitly political nature of the issue was often displaced. Instead of advancing arguments about the allocation of limited resources, government often relied instead on depoliticization arguments like those made by lawyer John Power: childcare needs should be pushed back into the private. They are interesting arguments since they are not compatible with the government’s own acknowledged commitment to childcare as a matter for public concern. One suspects that, in the crisis of litigation, government lawyers simply fell back on arguments that would help them avoid the politics of acknowledging limited resources. Perhaps a fear of the implications of the politics of rights led them to reprivatizing arguments. One can understand the ease with which such arguments come to hand without simply characterizing government as an opponent of women’s interests. Valuing the Referee It is also useful to ask what can be seen in the Supreme Court majority judgment when treating the Court as friend. To see the Court as friend does require one to acknowledge the context in which the Court is required to act. The Court is indeed a participant with a role as essential to society as is a referee to a sport. However complex and layered the issues before it, a court is required at the end of the day to render a judgment, to decide the issues. In this capacity the Court, while undoubtedly powerful, is also subject to constraint. It is indeed caught between limit and possibility. However, the Court is more than neutral arbiter. While there are limits to what a court can do, its power to define and disqualify should not be underestimated. Acknowledging both its power and limitations, what can be said of the Court’s decision in Symes? First, there is more in the majority judgment than a simple unwillingness to “see women get ahead.”31 The majority understood that the historically constructed public/private divide contributed to gendered and unequal distributions of social responsibility. Indeed, it went so far as to take judicial notice of the fact that women disproportionately bear the social burdens of childcare. Though it did not make a legal holding on the issue, the majority did go some distance towards unsettling the traditional public/private divide. Further, it rejected the practice of treating children as choices like begonias, cars, or clothing – mere items of consumption. Importantly, it also rejected the proposition that social benefits legislation was immune from Charter review. For these things, the Court can and should be commended.

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The majority did not, of course, allow the deduction. It argued that it had no choice but to reach the conclusion it did. On this, I disagree. While there were undoubtedly constraints, the majority could have come to a different conclusion. However, treating the Court as friend, I can accept that the majority disallowed the deduction with the best of intentions. Indeed, the simple tax problem before it raised a host of immensely complicated issues of redistributional and recognition based injustice. The Court was not presented with the kind of information and opportunity necessary to craft a real solution and may well have feared that, in this context, discretion was the better part of valour. Because I agree with critics who cautioned that a win for Symes would not necessarily bring about largescale economic redistribution, I am moderately sanguine about the result reached by the majority. And, though I believe it could, and should, have reached a different result, I also believe that what it settled on can be defended on a number of political or pragmatic grounds. I certainly do not dismiss the fears or concerns that may have motivated the Court to reach the decision that it did. I am much less sanguine, however, about the language the Court used in arriving at its judgment. Indeed, the use of the language of selfishness causes me great concern. It is one thing to deny a tax claim. It is quite another to do so in a manner that reinforces the punishing demand of female selflessness and denies women the right to participate in the process of negotiating the legal meaning that will be given to their actions. The case involved both a recognition and a redistribution claim. For better or worse, the Court denied the redistribution claim. Then, using the rhetoric of choice, it rendered the recognition claim moot. By characterizing the business-expense issue as irrelevant, the majority denied the importance of women being participants in constructing the meaning given to their actions. This was a denial of recognition on a grand scale. I am critical of the Court’s deployment of the rhetoric of choice and selfishness. But I do not suggest that the Court is a bad-faith actor, using the rhetoric with an intention to deny recognition and to punish. Indeed, I suspect that the majority uses the language quite unselfconsciously and perhaps even without a sense of the rhetoric’s power to wound. The Court, of course, was not alone in using this rhetoric, nor was its use of it particularly egregious. The rhetoric is deeply pervasive in our society and plays a powerful role in holding intact a systemic gendered division of labour and social recognition. Indeed, it is the pervasiveness of the rhetoric across society that is so troubling. Because I believe that the Court should be treated as friend, I believe that it is important that the critique be made. The Court could have arrived at the desired redistributional result without denying the recognition claim and without deploying the rhetoric of selfishness.

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The Role of the Academic Observer This leads me to the final piece of postgame analysis. What role is there to still be played by the academic and activist community? What can be said of the role played by academics, activists, and others who see themselves as observers and critics of the law – those who stand figuratively on the sidelines or sit in the bleachers? I want to suggest that when it comes to intersectionally complex cases like Symes, it is important to understand the parts played by those who are often characterized as mere observers. The case is not made only in the playing. It is also made in the interpretations observers make of it. These interpretations can and should change over time. So, for example, when a case is making its way through the court system and one is at the stage of deciding “who will win,” there are certain kinds of arguments and critiques that need to be considered. There are good reasons why it may be necessary to ask questions about redistribution and about the potential “juridogenic” implications of certain outcomes. However, when a case is over, it is useful to carefully consider what to make of it. Once the game has been played, there is time and space to explore the more complex story and to make much more of what transpired. The question, really, concerns the meaning that should now be given to the Symes case. I suggest that it is no longer useful to see the case as primarily about a conflict between gender and class interests. Indeed, there is too much at stake to allow the case to be narrowed to the point that its more radical story is subsumed. In the telling and retelling of the tale, there is now room for the more complex story – a story without villains. There is room for a story that captures something of the difficult dilemmas of recognition and redistribution, of the mix of privilege and disadvantage. The central lesson of the story need not be that law cannot be used as a tool of social justice. To allow that lesson to dominate is to forget that the stories told about the legal process are an important part of the law itself. As Eisenstein reminds us, not only judges but also legal writers participate in formulating legal discourse by interpreting law and thereby establishing its symbolic meaning.32 While the range of possible interpretations is constrained by law itself, law has no meaning without interpretation. That is, the story-tellers participate in shaping the story. As such, the kind of talk engaged in matters. The stories we tell about how the law represents women (as powerful or powerless, as victims or selfish) matter a great deal. The point I am making dovetails with some of the arguments made by Carol Smart about the relationship of law and social change. Despite her scepticism about the potential for feminists to harness law as a means of law reform, she argues that feminists cannot afford to abandon the law as a crucial site of struggle. The focus of interest, though, should be less on law as a system of rules than as “a system of knowledge.”33 She says

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that “it is law’s power to define and disqualify which should become the focus of feminist strategy rather than law reform as such.”34 The symbolic dimensions of language, she suggests, should not be dismissed too quickly. An important strategy would then be “to challenge the power of law and to insist on the legitimacy of feminist knowledge and feminism’s ability to redefine the wrongs of women which law too often confines to insignificance.”35 In part, I am arguing for a “postgame approach” that focuses on law as part of a larger system of knowledge. In such a context, the Symes case can be seen as an important source of information. It reveals how difficult it is to come to terms with the intersection of power and wound. It can teach us that the problem is not how to avoid the mixture but how to use the law in a way that acknowledges that all people are conflicted actors. It reveals the extreme ease with which “we” (courts, governments, conservatives, liberals, radicals) slip into discourses of choice that flatten the complexity of the world we live in. It illustrates how difficult it is, particularly when women and mothers are involved, to deal with intersectional mixtures of power and wound without falling into the discourse of selfishness. And finally, it shows us that the recognition claim was potentially very radical. If recognition is about the renegotiation of codes, we participate in the renegotiations each time we tell the story of the Symes case. Whether or not she “won,” the case is a success each time it can be used to illustrate or tease out the complexity of a claim, each time it can be used to tell a story of the need to collectively continue to negotiate the codes used to socially recognize the work people do. In affirming the importance of the symbolic and the need to participate actively in negotiating the meaning of things, I am not asserting that one can simply speak a new world into existence. The uttering of The Word may have brought new worlds into existence for both God and Lilith but things are clearly less simple for mere mortals. To paraphrase Marx’s dictum, “One cannot combat the real existing world by merely combating the phrases of this world.”36 While this may be true, I would agree with McIntyre that “the power to name one’s world carries with it some power of control over it.”37 Without saying we can free ourselves by simply changing the way we talk, I am arguing that a shift in language use is important. Language is the product of historical negotiations, with all the ensuing implications about power, and it cannot be seen as just a neutral mechanism for describing an extant reality. In de Saussure’s words, “Language, far from reflecting an already given social reality, constitutes social reality for us ... meaning is constituted within language.”38 While it gives the appearance of being fixed, language is constantly being made and remade in the way that it is used.39 Clearly, our relationship with language is one of complexity and contradiction. We use it as if it had meaning and, at the same time,

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we are involved in contests over its meaning. We are in a dialectical relationship with it, being shaped by it even as we are shaping it.40 While naming is a powerful thing, it is not enough just to name one’s world; the language of the human community is a collective resource and naming is only part of establishing a changed meaning. We cannot simply speak our way to freedom or “think ourselves free.” However, as Winter notes, power is at base a hermeneutic institution. While a change in ideology does not always produce a change in materiality, it is often a necessary precursor to change because the symbolic often serves to hold material inequities in place. Language and its symbolic power should not be too readily dismissed since the symbolic importance of law may be understood, Gavigan argues, “as critical to the securing and maintaining of legitimacy of the state and the broader social order.”41 Naming the world in a different way, seeing the world in a different way, can change the way that one “knows” or organizes information about the world. Language is one of the important mechanisms through which we exercise power and through which power is brought to bear on us. The power to interpret is power indeed. Using such insights about power, particularity, and language, it is possible to think about the Symes case in a different manner. First, a micropolitical approach emphasizes the importance of maintaining a realistic sense of social change. The sense of impasse experienced by many feminists and activists may be dissipated in some measure through expanding one’s view of the nature of the struggle, by finding more to value in the struggle itself. And further, it helps to remember that neither subject, nor opponent, nor struggle is unitary. A case like Symes is but one moment in an ongoing social struggle in which people change sides depending on their perceptions of the interests at stake at that moment. Using Mann’s sports metaphor, the potential for individual or social excellence is not the outcome of a single encounter, lost or won; even a loss may be a source of pride, of learning, and of value. The (post)feminist approach suggests that there is far less despair when the focus is on the process and on creatively discovering what can be made of the event.

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3.

The Canadian Income Tax Act The income of a taxpayer for a taxation year for the purposes of this Part is his income for the year determined by the following rules: (a) determine the aggregate of amounts each of which is the taxpayer’s income for the year ... from a source inside or outside Canada, including, without restricting the generality of the foregoing, his income for the year from each office, employment, business and property;

4(1).

For the purposes of this Act, (a) a taxpayer’s income ... for a taxation year from an office, employment, business, property or other source ... is the taxpayer’s income ... computed in accordance with this Act on the assumption that he had during the taxation year no income ... except from that source ... and was allowed no deductions in computing his income for the taxation year except such deductions as may reasonably be regarded as wholly applicable to that source .. and except such part of any other deductions as may reasonably be regarded as applicable thereto.

4(2).

Subject to subsection (3), in applying subsection (1) for the purposes this Part, no deductions permitted by sections 60 to 63 are applicable either wholly or in part to a particular source.

4(4).

Unless a contrary intention is evident, no provision of this Part shall be read or construed to require the inclusion or to permit the deduction, in computing the income of the taxpayer for a taxation year or his income or loss for a taxation year from a particular source or from sources in a particular place, of any amount to the extent that amount has been included or deducted, as the case may be, in computing such income or loss under, in accordance with or by virtue of any other provision of this Part.

9(1).

Subject to this Part, a taxpayer’s income for a taxation year from a business or property is his profit therefrom for the year.

18(1).

In computing the income of a taxpayer from a business or property no deduction shall be made in respect of (a) an outlay or expense except to the extent that it was made or incurred by the taxpayer for the purpose of gaining or producing income from the business or property; ... (h) personal or living expenses of the taxpayer except traveling expenses (including the entire amount expended for meals and lodging) incurred by the taxpayer while away from home in the course of carrying on his business;

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Subject to subsection (2), in computing the income of a taxpayer for a taxation year the aggregate of all amounts each of which is an amount paid in the year as or on account of child care expenses in respect of an eligible child of the taxpayer for the year may be deducted ... (b) by the taxpayer or a supporting person of the child for the year ... to the extent that (c) the amount is not included in computing the amount deductible under this subsection by an individual (other than the taxpayer), and (d) the amount is not an amount (other than an amount that is included in computing a taxpayer’s income and that is not deductible in computing his taxable income) in respect of which any taxpayer is or was entitled to a reimbursement or any other form of assistance, and the payment of which is proven by filing with the Minister one or more receipts each of which was issued by the payee and contains, where the payee is an individual, that individual’s Social Insurance Number; but not exceeding the amount, if any, by which (e) the least of (i) $8,000, (ii) the product obtained when $2,000 is multiplied by the number of eligible children of the taxpayer for the year in respect of whom the child care expenses were incurred, and (iii) 2/3 of the taxpayer’s earned income for the year exceeds (f) the aggregate of all amounts each of which is an amount deducted, in respect of the eligible children of the taxpayer that are referred to in subparagraph (e)(ii), under this subsection for the year by an individual (other than the taxpayer) to whom subsection (2) is applicable for the year ...

63(3).

In this section, (a) “child care expense” means an expense incurred for the purpose of providing in Canada, for any eligible child of a taxpayer, child care services including baby sitting services, day nursery services or lodging at a boarding school or camp if the services were provided (i) to enable the taxpayer, or the supporting person of the child for the year, who resided with the child at the time the expense was incurred, (A) to perform the duties of an office or employment, (B) to carry on a business either alone or as a partner actively engaged in the business, ... (b) “earned income” of a taxpayer means the aggregate of (i) all salaries, wages and other remuneration, including gratuities, received by him in respect of, in the course of, or by virtue of offices and employments, and all amounts included in computing his income by virtue of sections 6 and 7, (ii) amounts included in computing his income by virtue of paragraph 56(1)(m), (n) or (o), and (iii) his incomes from all businesses carried on either alone or as a partner actively engaged in the business. (c) “eligible child” of a taxpayer for a taxation year means (i) a child of the taxpayer or of his spouse, or (ii) a child in respect of whom the taxpayer deducted an amount under section 109 for the year,

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if, at any time during the year, the child was under 14 years of age or was over 13 years of age and dependent on the taxpayer by reason of mental or physical infirmity; and (d) “supporting person” of an eligible child of a taxpayer for a taxation year means (i) a parent of the child, (ii) the taxpayer’s spouse, or (iii) an individual who deducted an amount under section 109 for the year in respect of the child, if the parent, spouse or individual, as the case may be, resided with the taxpayer at any time during the year and at any time within 60 days after the end of the year. 67.

214.

(1) (2)

262.

1.

15.(1)

(2)

24.(1)

In computing income, no deduction shall be made in respect of an outlay or expense in respect of which any amount is otherwise deductible under this Act, except to the extent that the outlay or expense was reasonable in the circumstances. The United States Internal Revenue Code EXPENSES FOR CARE OF CERTAIN DEPENDENTS (a) GENERAL RULE — There shall be allowed as a deduction expenses paid during the taxable year by a taxpayer who is a woman or widower, or is a husband whose wife is incapacitated or is institutionalized, for the care of one or more dependents ..., but only if such care is for the purpose of enabling the taxpayer to be gainfully employed ... (A) Except as provided in subparagraph (B), the deduction under subsection (a) shall not exceed $600 for any taxable year ... WORKING WIVES AND HUSBANDS WITH INCAPACITATED WIVES — In the case of a woman who is married and in the case of a husband whose wife is incapacitated, the deduction under subsection (a) — (A) shall not be allowed unless the taxpayer and his spouse file a joint return for the taxable year, and (B) shall be reduced by the amount (if any) by which the adjusted gross income of the taxpayer and his spouse exceeds $6,000. This paragraph shall not apply, in the case of a woman who is married, to expenses incurred while her husband is incapable of self-support because mentally or physically defective, or in the case of a husband whose wife is incapacitated, to expenses incurred while his wife is institutionalized if such institutionalization is for a period of at least 90 consecutive days ... Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses. The Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

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32.(1)

This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

33.(1)

Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(2)

The Constitution of the United States Amendment V [1971] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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Appendix B Selections from the Dissent in Symes v. Canada †

C. Section 18(1)(h) of the Income Tax Act: Personal or Living Expenses As previously discussed, taxation logic allows deductions from gross income for legitimate business expenses when calculating income. Personal expenses are not, however, seen as legitimate deductions. These expenses are considered to be expenses of “consumption” which should appropriately be included within the tax base. It is argued that child care is just such an expense, and that child bearing and caring decisions are private decisions, having nothing to do with business. Under this logic, it is argued that Ms. Symes should not be granted special or preferential treatment, by allowing her to deduct a personal expense — her child care cost. Although my colleague, Iacobucci J., has examined this issue, I wish to express my own views with regard to what makes an expense personal and whether child care qualifies as any other such expense. In my view, it is important to look closely at the dichotomy of business as opposed to personal expenses. If we survey the experience of many men, it is apparent why it may seem intuitively obvious to some of them that child care is clearly within the personal realm. This conclusion may, in many ways, reflect many men’s experience of child care responsibilities. In fact, the evidence before the Court indicates that, for most men, the responsibility of children does not impact on the number of hours they work, nor does it affect their ability to work. Further, very few men indicated that they made any workrelated decisions on the basis of child-raising responsibilities. The same simply cannot currently be said for women. For women, business and family life are not so distinct and, in many ways, any such distinction is completely unreal, since a woman’s ability to even participate in the work force may be completely contingent on her ability to acquire child care. The decision to retain child care is an inextricable part of the decision to work, in business or otherwise. This reality is expressed by Grace Blumberg in “Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers” (19711972), 21 Buff. L. Rev. 49, at p. 64, in similar terms: Child care ... is an expense ... which necessarily arises only when both parents are employed ... A working mother’s provision for child care is a nondiscretionary expense directly related to the fact of her employment. In the recently released study by the Canadian Bar Association Task Force on Gender Equality in the Legal Profession entitled Touchstones for Change: Equality, Diversity and Accountability (1993), the difficulties many women lawyers face when attempting to balance career and family were highlighted. The report states (at p. 65): One of the main causes of discrimination against women lawyers is the culture that surrounds work in the legal profession. That culture has been shaped by and for †

Symes v. Canada, [1993] 4 S.C.R. 695, per Justice L’Heureux-Dubé at 799-804.

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male lawyers. It is predicated on historical work patterns that assume that lawyers do not have significant family responsibilities. The “hidden gender” of the current arrangements for legal work manifests itself in many ways, including: the extremely long and irregular hours of work; assumptions about the availability of domestic labour to support a lawyer’s activities at work; promotion within law firms which is incompatible with the child bearing and child rearing cycles of most women’s lives; and the perceived conflict between allegiances owed to work and family. Particularly with respect to child care responsibilities, provincial surveys provided clear evidence that women lawyers bear by far a greater responsibility for child care than do their male counterparts, at p. 67: The proportion of responsibility borne by women lawyers for their children is almost double that borne by male lawyers. When asked about the proportion of responsibility they bear, women responded 49% (Ontario); 40% (British Columbia) and 44% (Alberta) while men responded 26% (Ontario); 20% (British Columbia); and 26% (Alberta). The Saskatchewan survey revealed that women assume primary responsibility for child care in all areas broken down by activity. For example, 59% of women report they care for children when the latter are ill compared to only 4% of men. Further, the surveys revealed that women lawyers had a much greater reliance on paid child care workers than did male lawyers, at pp. 67-68: Women lawyers are much more likely to rely on paid child care givers than are male lawyers — by a ratio of three to one. In Ontario, female respondents identified the proportion of responsibility borne by paid child care workers as 26%, while men responded 10%. In British Columbia the proportion of child care responsibility borne by paid child care workers was reported as 26% by women lawyers and 10% by men. Again, in Alberta, this proportion was 29% for female lawyers and 8% for male lawyers. In the Saskatchewan and Quebec surveys, 70% of women reported having the responsibility for making child care arrangements. Conversely, male lawyers can count on a spouse or spousal equivalent to be responsible for child care at a rate of approximately three times the spousal assistance available to women ... Although both male and female lawyers have experienced stress as a result of competing demands of career and child care responsibilities, women reported negative material effects in the form of loss of income or reduced career opportunities to a degree not reported by men. For example, a majority of women reported loss of income due to child rearing whereas only a small minority of men did so. (Emphasis in original.) The reality of Ms. Symes’ business life necessarily includes child care. The 1993 concept of business expense must include the reality of diverse business practices and needs of those who have not traditionally participated fully in the world of business. Décary J.A.’s statement that the “concept of a business expense has been developed ... without any regard to the particular needs of those in charge of the business” (p. 523), fails to recognize this reality. In this regard, comments made by Isabel Grant and Lynn Smith in a paper prepared for the Ontario Law Reform Commission (“Gender Representation in the

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Canadian Judiciary,” in Appointing Judges: Philosophy, Politics and Practice (1991), 57, at p. 79) ring true: ... no one is “objective” in the sense of being without a frame of reference, yet we sometimes fail to notice the frame of reference of those who have been in a position to define the very terms and concepts in which we think. Audrey Macklin in “Symes v. M.N.R.: Where Sex Meets Class” (1992), 5 C.J.W.L. 498, at p. 507, retorted that Décary J.A.’s above assertion: ... failed to acknowledge that as long as business has been the exclusive domain of men, the commercial needs of business have been dictated by what men (think they) need to expend in order to produce income. The fact that these expenditures also have a “personal” element was never treated as a complete bar. Thus, the courts have in the past permitted businessmen to deduct club fees because men like to conduct business with each other over golf. [Royal Trust Co. v. Minister of National Revenue, supra] ... Because some men believe expensive cars enhance their professional image, driving a Rolls Royce has been held to be an incident of a professional business. [Friedland v. The Queen, supra.] As a consequence, one must ask whether the many business deductions available, for cars, for club dues and fees, for lavish entertainment and the wining and dining of clients and customers, and for substantial charitable donations, are so obviously business expenses rather than personal ones. Although potentially personal, each one of these expenses has been accepted as a legitimate business expense and, as each reflects a real cost incurred by certain kinds of business people to produce income from business, a deduction has been allowed. The real costs incurred by businesswomen with children are no less real, no less worthy of consideration and no less incurred in order to gain or produce income from business. Finally, with regard to the potentially personal nature of child care expenses, the issue of “choice” has been raised as a barrier to the availability of a deduction. As I am in agreement with my colleague Iacobucci J.’s reasoning in this regard, I will make only a few brief points. While there is a personal component to child raising, and while the care of children may be personally rewarding, this “choice” is a choice unlike any others. This “choice” is one from which all of society benefits, yet much of the burden remains on the shoulders of women. Women “choose” to participate in an activity which is not for their benefit alone, and, in so doing, they undertake a function on behalf of all society. As Dickson C.J. very appropriately remarked in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, at p. 1243: That those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged seems to bespeak the obvious. It is only women who bear children; no man can become pregnant ... it is unfair to impose all of the costs of pregnancy upon one half of the population. The decision to have children is not like any other “consumption” decision. To describe the raising of children in comparable terms to “choosing” to purchase a certain kind of automobile or live in a certain dwelling is simply untenable. As well, the many complexities surrounding child care make it inappropriate to adopt the language of voluntary assumption of costs, where those costs may, in fact, be allocated in a discriminatory fashion — the burden falling primarily on women. In conclusion to the question of whether child care expenses are precluded from being deducted as a business expense under s. 9(1) by the interplay of either s. 18(1)(a) or s. 18(1)(h) of the Act, I answer that child care may be held to be a business expense deductible pursuant to ss. 9(1), 18(1)(a) and 18(1)(h) of the Act, all other criteria being respected.

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Introduction 1 “Power” is reprinted from Adrienne Rich, Dream of a Common Language: Poems 1974-1977 (New York: W.W. Norton and Co., 1978) 3, by permission of the author and W.W. Norton and Company. Copyright © 1978 by W.W. Norton and Company. 2 Allan Hutchinson and Pam Carpenter, “Judges Shouldn’t Be Making Social Policy,” Toronto Star, 27 December 1993, at A33. 3 Debra McAllister, “The Supreme Court in Symes: Two Solitudes” (1994) 4 National Journal of Constitutional Law 248 at 263. 4 Patricia Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991) 10. 5 Patricia S. Mann, Micro-Politics: Agency in a Post-Feminist Era (Minneapolis: University of Minnesota Press, 1994) 31. 6 Jürgen Habermas, The New Conservatism: Cultural Criticism and the Historians’ Debate (Cambridge, MA: MIT University Press, 1989) 48. Chapter 1: Theoretical Foundations 1 James S. Hans, The Fate of Desire (New York: State University of New York Press, 1990) 147. 2 Articles explicitly referring to intersectionality include: Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139; Darlene Clark Hine, “‘In the Kingdom of Culture’: Black Women and the Intersection of Race, Gender, and Class” in Gerald Early, ed., Lure and Loathing: Essays on Race, Identity, and the Ambivalence of Assimilation (New York: The Penguin Press, 1993) 337; Trina Grillo, “Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House” (1995) 10 Berkeley Women’s Law Journal 16; Marie-Claire Belleau, “L’intersectionalité: Feminisms in a Divided World (Quebec-Canada)” in Dany Lacombe and Dorothy Chunn, eds., Law as a Gendering Practice (London: Oxford University Press, 1999), 19. 3 See Angela Miles, Integrative Feminisms: Building Global Visions, 1960s-1990s (New York: Routledge, 1996). 4 See Michel Foucault, “Nietzsche, Genealogy, History” in Donald F. Bouchard, ed., Language, Countermemory, Practice: Selected Essays and Interviews (Ithaca: Cornell University Press, 1977), 130. 5 “Second-wave feminism” is a phrase used to discuss women’s activism that began growing out of the social foment of the 1960s. References to “first-wave feminism” are generally to late nineteenth- and early twentieth-century activism that often focused on issues of suffrage and married women’s property regimes. The classic Canadian text on first-wave feminism is Catherine L. Cleverdon, The Woman Suffrage Movement in Canada (Toronto: University of Toronto Press, 1950). For a collection of documents detailing many dimensions of second wave thinking, see Rosalyn Baxandall and Linda Gordon, eds., Dear Sisters: Dispatches from the Women’s Liberation Movement (New York: Basic Books, 2000).

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6 Dale Spender, Man Made Language (London: Routledge and Kegan Paul, 1985), 1-2. 7 For a valuable collection of writings documenting this period, see Barbara A. Crow, ed., Radical Feminism: A Documentary Reader (2000). 8 On the sameness/difference debates generally, see Joan C. Williams, “Dissolving the Sameness/Difference Debate: A Post-Modern Path Beyond Essentialism in Feminist and Critical Race Theory” (1991) Duke Law Journal 296. 9 Indeed, this was the rather modest argument made by Canada’s first female Supreme Court Justice: Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall Law Journal 507. Her argument remains controversial in some camps. Indeed, the right-wing conservative women’s group REAL Women (the acronym stands for “Realistic, Equal, Active for Life”) made a formal complaint to the Canadian Judicial Council about the “feminist” attitudes expressed in Justice Wilson’s speech. See REAL Women, “Letter to the Editor,” Toronto Star, 24 February 1990. 10 Taking this approach, Ferguson argued that bureaucracy could not be reformed from within. Women were in a position to see that the system itself was flawed. The liberal strategy of inclusion, while admirable, was simply unable to confront the magnitude of the problem: Kathy E. Ferguson, The Feminist Case against Bureaucracy (Philadelphia: Temple University Press, 1984). 11 Audre Lorde, “Open Letter to Mary Daly” in Cherrie Moraga and Gloria Anzaldua, eds., This Bridge Called My Back: Writing by Radical Women of Colour (New York: Kitchen Table – Women of Color Press, 1981) 94 at 97. 12 Angus McLaren, Our Own Master Race: Eugenics in Canada, 1885-1945 (Toronto: McClelland and Stewart, 1990); See also Mariana Valverde, “‘When the Mother of the Race Is Free’: Race, Reproduction, and Sexuality in First-Wave Feminism” in Franca Iacovetta and Mariana Valverde, eds., Gender Conflicts: New Essays in Women’s History (Toronto: University of Toronto Press, 1992) 3. 13 In Canada, the vote was first given to married women of British descent. See Cleverdon, supra note 5. See also Glenda Elizabeth Gilmore, Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896-1920 (Chapel Hill: University of North Carolina Press, 1996). 14 Angela Davis, “Racism, Birth Control, and Reproductive Rights” in Marlene Gerber Fried, ed., From Abortion to Reproductive Freedom: Transforming a Movement (Boston: South End Press, 1990) 15. 15 See, for example, Frances E. White, “Africa on My Mind: Gender, Counter Discourse and African-American Nationalism” (1990) 2 Journal of Women’s History 73. 16 Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988). 17 For example, see Jane Roland Martin, “Methodological Essentialism, False Difference, and Other Dangerous Traps” (1994) 19 Signs 630. 18 Kimberlé Crenshaw, “Race, Gender, and Sexual Harassment” (1992) 65 Southern California Law Review 1467 at 1474-75. 19 Debbie Epstein, Changing Classroom Cultures: Anti-Racism, Politics and Schools (Stoke-onTrent: Trentham Books, 1993) 17. 20 Sherene Razack, “Beyond Universal Women: Reflections on Theorizing Differences among Women” (1996) 45 University of New Brunswick Law Journal 209. 21 A good primer to the problem of privilege is provided in Peggy McIntosh, “White Privilege: Unpacking the Invisible Knapsack” (July/August 1989) Peace and Freedom 10. 22 Patricia Hill Collins, “The Tie That Binds: Rethinking Racism, Sexism and Violence,” class lecture given 25 October 1994, Ann Arbor, Michigan. The insights are summarized in Rebecca Johnson, “Power and Wound” (1995) 45 UNB LJ 265. 23 Michel Foucault, The History of Sexuality, Volume 1: An Introduction (1978) (New York: Vintage Books, 1990). 24 Ibid. at 217. 25 As summarized in Steven L. Winter, The “Power” Thing, 82 Va. L. Rev. 721 at 794-95. 26 Patricia S. Mann, Micro-Politics: Agency in a Post-Feminist Era (Minneapolis: University of Minnesota Press, 1994) 159.

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27 28 29 30 31 32 33

34 35 36 37

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39 40 41 42 43

Ibid. at 1. Hans, supra note 1 at 67. Mann, supra note 26 at 4. Neil Brooks, “The Logic, Policy and Politics of Tax Law” in Tim Edgar et al., ed., Materials on Canadian Income Tax (Scarborough: Carswell, 2000) 19. Claire F.L. Young, What’s Sex Got To Do With It?: Tax and the “Family” (Law Commission of Canada: Ottawa, 2000) 11. Joseph Schumpeter, History of Economic Analysis (New York: Oxford University Press, 1954) at 769, as quoted in Brooks, supra note 30 at 5. Stanley S. Surrey and Paul R. McDaniel, Tax Expenditures (Cambridge, MA: Harvard University Press, 1985) at 3. The concept was first introduced in Stanley S. Surrey, Pathways to Tax Reform (Cambridge, MA: Harvard University Press, 1973). While there have been many debates among tax theorists about the utility of tax-expenditure theory, there remains widespread agreement that the theory provides a useful set of analytical tools. For a summary of some of the criticisms and debates about the theory, see Neil Bruce, “Pathways to Tax Expenditures: A Survey of Conceptual Issues and Controversies” in Neil Bruce, ed., Tax Expenditures and Government Policies: Proceedings of a Conference Held at Queen’s University 17-18 November 1988 (Kingston: John Deutsch Institute for the Study of Economic Policy, 1988) 21-61. Brooks, supra note 30 at 64. Tim Edgar, “Distress Preferred Shares and Small Business Development Bonds: A Tax Expenditure Analysis” (1994) 42 Canadian Tax Journal 659 at 663. Claire Young, “Child Care and the Charter: Privileging the Privileged” (1994) 20 Review of Constitutional Studies 31-32. This point is powerfully made in Frank P. Tomasulo, “‘I’ll See It When I Believe It’: Rodney King and the Prison-House of Video” in Vivian Sobchack, ed., The Persistence of History: Cinema, Television, and the Modern Event (New York: Routledge, 1996) 69. Marilyn Yalom makes this point with respect to the breast, noting the distinctions between the valued “little breasts” of the Middle Ages and the often silicon-enhanced “supersized” breasts so valued in our own century. See particularly chap. 2, “The Erotic Breast” in her book, A History of the Breast (New York: Alfred Knopf, 1997). For a collection of articles exploring some of this history, see Susan B. Boyd, ed., Challenging the Public/Private Divide (Toronto: University of Toronto Press, 1997). See, for example, Jean Bethke Elshtain, Public Man, Private Woman: Women in Social and Political Thought (Princeton, NJ: Princeton University Press, 1981). Ruth Gavison, “Feminism and the Public/Private Distinction” (1992) 45 Stanford Law Review 19. Carol Hanisch, “The Personal Is Political” in Barbara A. Crow, ed., Radical Feminism: A Documentary Reader (New York: New York University Press, 2000) 114. See, for example, Anita Allen, who argues that black women have often been denied the privacy that has been the source of suffocation for many white middle-class women: Anita L. Allen, “Women and Their Privacy: What is at Stake?” in Carol Gould, ed., Beyond Domination: New Perspectives on Women and Philosophy (Totowa, NJ: Rowman and Littlefield Publishers, 1984) 233.

Chapter 2: Childcare Politics in Canada 1 These cases are discussed infra in text accompanying notes 24 to 27. 2 These cases are discussed infra in text accompanying notes 20 to 23 and 28 to 31. 3 Canada, Report of the Commission on Equality in Employment (Ottawa: Supply and Services Canada, 1984) i [hereinafter RCEE]. 4 Ibid. at ii. 5 Ibid. at 77. 6 Ibid. at 177-78 [emphasis added]. 7 See Carolyn Strange, Toronto’s Girl Problem: The Perils and Pleasures of the City, 1880-1930 (Toronto: University of Toronto Press, 1995). See also Jacques Donzelot, The Policing of Families (New York: Pantheon Books, 1979).

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8 Ruth Roach Pierson, They’re Still Women After All: The Second World War and Canadian Womanhood (Toronto: McClelland and Stewart, 1992). 9 An Act to amend the Income War Tax Act, S.C. 1942, c. 28; amending R.S.C. 1927, c. 97. 10 Wartime Day Nurseries Act, Order in Council P.C. 6242, 20 July 1942 (Pursuant to the War Measures Act, R.S.C. 1927, c. 206); amended by P.C. 2503, 6 April 1944, and P.C. 3733, 18 May 1944; revoked by P.C. 2326, 7 June 1946. 11 Pierson, supra note 8, at 53-54. 12 Ibid. at 53, citing letter from E.M. Little, Director of NSS, to G.S. Tattle, Deputy Minister, Department of Public Welfare, Ontario (30 April 1942). 13 Ibid. at 53, citing memorandum of 22 May 1942, on Proposals for Day Nurseries for Mothers Working in War Industry, for file in Deputy Minister’s Office, Department of Labour, PAC, RG 27, vol. 609, file 6-52-1, vol. 1. 14 Ibid. at 55, note 155. 15 Ibid. at 50, citing Report on Day Care of Children, 1 July 1943, PAC, RG 27, vol. 609, file 6-52-1, vol. 1. 16 Susan Prentice, “Workers, Mothers, Reds: Toronto’s Postwar Daycare Fight” in Raymond B. Blake and Jeff Keshen, eds., Social Welfare Policy in Canada: Historical Readings (Toronto: Copp Clark, 1995) 260, quoting Globe and Mail, 11 July 1946. 17 Ibid. at 270, quoting from Ministry of Public Welfare news release, 28 May 1951. 18 An Act to amend the Income War Tax Act, S.C. 1947, c. 63; amending R.S.C. 1927, c. 97. 19 For an exploration of the complex way that the public/private divide is used, see Ruth Gavison, “Feminism and the Public/Private Distinction” (1992) 45 Stanford Law Review 1. 20 (1891) 3 T.C. 22 [hereinafter Bowers]. 21 Ibid. at 23. 22 Income Tax Act, 1853 (U.K.) c. 34, s. 51. 23 Bowers, supra note 29, at 26. 24 No. 68 v. Minister of National Revenue, 52 D.T.C. 333 (T.A.B.). 25 Ibid. at 334. 26 Macquistan v. Minister of National Revenue, 65 D.T.C. 236 (T.A.B.). 27 Ibid. at 236. The reasoning in these cases also appears in Lawlor v. Minister of National Revenue, 70 D.T.C. 1248 (T.A.B.) 28 (1939), 40 B.T.A. 1038; aff’d 113 F. 2d. 114 (Court of Appeals, 2d Cir.) [hereinafter Smith]. 29 Ibid. at 1039. 30 Ibid. 31 Ibid. at 1040. 32 Canada Assistance Plan, S.C. 1966, c. 45. 33 An Act to amend the Income Tax Act and to make certain provisions and alterations in the statute law related to or consequential upon the amendments to that Act, S.C. 1970-71-72, c. 63. 34 Canada, Report of the Royal Commission on Taxation (Ottawa: Queen’s Printer, 1966) [hereinafter RRCT]. 35 See Appendix I. 36 RRCT, supra note 34, at 7-19. 37 Ibid. at 17. 38 RRCT, supra note 34, at 289 [emphasis added]. 39 Proposals for Tax Reform (E.J. Benson, Minister of Finance) (1969). 40 Ibid. at 248 [emphasis added]. 41 Canada, Report of the Royal Commission on the Status of Women in Canada (Ottawa: Information Canada, 1970) vii [hereinafter RCSW]. 42 Douglas G. Hartle, Taxation of the Incomes of Married Women (Ottawa: Information Canada, 1969) 69. 43 Recall our earlier discussion in chap. 1. Two women have their children in the same daycare facility. The first earns $100,000 per year and has a tax rate of 50 percent. The second earns $30,000 per year, paying tax at a rate of 30 percent. Assume that both women claim a $5,000 deduction for childcare. For the first woman, the deduction reduces her tax payable by $2,500 ($5,000 × 0.5). For the second woman, the very same deduction reduces her tax payable by only $1,500 ($5,000 × 0.3).

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44 Hartle, supra note 42, at 69-78. 45 Ibid. at 78. 46 For an introduction to the differing roles played by tax deductions and tax credits in the tax expenditures system, see Stanley S. Surrey, Pathways to Tax Reform (Cambridge, MA: Harvard University Press, 1973) 6-49. 47 RCSW, supra note 41, at 271. 48 For an analysis of the similarities and differences between the US and Canadian childcare deductions, see B.J. Arnold, “The Deduction for Child Care Expenses in the United States and Canada: A Comparative Analysis” (1973) 12 Western Ontario Law Review 1. 49 The limits were revised upwards on several occasions, but in no case did they reflect anything near the actual cost of childcare: 1972 = $500; 1976 = $1,000; 1983 = $2,000; 1988 = $4,000 ($2,000 over age seven); 1993 = $5,000 ($3,000 over age seven); 1999 = $7,000 ($5,000 over age 7). 50 Arnold, supra note 47, at 4. 51 Jill Vickers, Pauline Rankin, and Christine Appelle, Politics as If Women Mattered: A Political Analysis of the National Action Committee on the Status of Women (Toronto: University of Toronto Press, 1993) 75, citing the Strategy for Change Report 23 (1972). 52 Ibid. at 80, citing Status of Women News (Summer 1973: 2). 53 Canadian Advisory Council on the Status of Women, Summary of Recommendations of the CACSW (Ottawa: Canadian Advisory Council on the Status of Women, 1982) 7. 54 Ibid. at 25. 55 RCEE, supra note 3, at 267. 56 Ibid. at 286. 57 Status of Women Canada, Report of the Task Force on Child Care (Ottawa: Status of Women Canada, 1986) [hereinafter TFCC]. 58 Status of Women Canada, Financing Child Care: Current Arrangements – Background Papers for the Report of the Task Force on Child Care 674 (1985). 59 TFCC, supra note 57, at 297. 60 Ibid. 61 Special Committee on Child Care Canada, Sharing the Responsibility (Ottawa: Queen’s Printer, 1987). 62 Ibid. at 9. 63 Ibid. at 10-11. 64 Ibid. at 24. 65 Ibid. at 83. 66 Ibid. at 84. 67 Janine Brodie, Politics on the Margin: Restructuring and the Canadian Women’s Movement (Halifax: Fernwood Publishing, 1995). 68 For an exploration of discursive strategies around this offloading of collective responsibility for child welfare onto individual women’s unpaid domestic labour, see Marlee Kline, “Blue Meanies in Alberta: Tory Tactics and the Privatization of Child Welfare” in Susan B. Boyd, ed., Challenging the Public/Private Divide (Toronto: University of Toronto Press, 1997) 330. 69 National Council of Welfare, Child Care: A Better Alternative (Ottawa: Supply and Services Canada, 1988) 892, 896. 70 See Vickers et al., supra note 50, at 274. 71 See Derek Ferguson and Rosemary Speirs, “60,000 Families to Get Day-Care Subsidies,” Toronto Star, 4 December 1994, at A1. 72 David A. Steele, “The Deductibility of Childcare Expenses Re-Examined: Symes v. R.” (1991) 17 Canadian Family Law Quarterly 315, 340. Chapter 3: Legal Manoeuvring and the Development of Litigation Strategies 1 Namack v. Commissioner (1971), 56 T.C. 1379; aff’d. (1972), 459 F. 2d. 1045 (Court of Appeals, 2d Cir.) 2 Baldwin v. Commissioner, 36 T.C.M (CCH) 995 (1977) (US Tax Ct.) 3 Namack, supra note 1, at 1381.

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Ibid. at 1383. Ibid. at 1383-84. Ibid. at 1384. Ibid. Ibid. Supra note 2. On the use by US feminists of the litigation arena, see Karen O’Connor, Women’s Organizations Use of the Courts (Toronto: Lexington Books, 1980). See Jill McCalla Vickers, “The Intellectual Origins of the Women’s Movement in Canada” in Constance Backhouse and David Flaherty, eds., Challenging Times: The Women’s Movement in Canada and the United States (Montreal: McGill-Queen’s University Press, 1992) 39. Jill Vickers, Pauline Rankin, and Christine Appelle, Politics as If Women Mattered: A Political Analysis of the National Action Committee on the Status of Women (Toronto: University of Toronto Press, 1993) 36. A.G. Canada v. Lavell, [1974] S.C.R. 1349. Bliss v. A.G. Canada, [1979] 1 S.C.R.183. Ibid. at 190. Andrews v. Law Society of Alberta, [1989] 1 S.C.R. 143. See Gwen Brodsky and Shelagh Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989). Isaiah Berlin, “Two Concepts of Liberty” in Four Essays on Liberty (London: Oxford University Press, 1969) 118. It is worth noting that the integrity of the individual as the unit of taxation is compromised by over two hundred provisions in the Income Tax Act that refer to married persons and common-law partners. So, though the starting point for taxation is symbolically the individual, spousal status is taken into account for many different purposes. See Mattabi Mines Ltd. v. Ont. (Min. of Rev), [1988] 2 S.C.R. 175 at pp. 186-90 per Wilson J. In the post-Symes era, courts have focused less on ordinary business principles and more on “generally accepted accounting principles” (GAAP). See, for example, Canderel v. Canada, [1998] 1 S.C.R. 147 and Toronto College Park v. Canada, [1998] 1 S.C.R. 183. See Royal Trust Co. v. M.N.R., [1957] D.T.C. 1055 (allowing the deduction of social club dues and initiation fees for senior personnel and executives); Premium Iron Ores Ltd. v. M.N.R., [1966] S.C.R. 685; Olympia Floor and Wall Tile (Québec) Ltd. v. M.N.R., [1970] D.T.C. 6085 (Ex.Ct.) (allowing charitable donations as business expenses); Imperial Oil Ltd. v. M.N.R., (1947), 3 D.T.C. 1090 (Ex. Ct.) (allowing the deduction of damage claims arising out of a collision between the appellant’s oil tanker and another ship); Parkinson v. M.N.R., [1951] D.T.C. 323; Holmes v. The Queen, [1974] D.T.C. 6143 (F.C.T.D.) (allowing the deduction of a management fee that the owner husbands paid to their wives for performing the administrative functions of the business). Statistics Canada, Women in Canada: A Statistical Report (Ottawa: Supply and Services, 1985); Statistics Canada, Canada’s Women: A Profile of Their 1986 Labour Market Experience 1988). See also Pat Armstrong, Labour Pains: Women’s Work in Crisis (Toronto: Women’s Press, 1984); Patricia Armstrong and Hugh Armstrong, The Double Ghetto: Canadian Women and Their Segregated Work (Toronto: McClelland and Stewart, 1994). See Margrit Eichler, Nonsexist Research Methods: A Practical Guide (Boston: Allen and Unwin, 1988); Suzanne Gordon, Prisoners of Men’s Dreams (Toronto: Little, Brown and Company, 1991); Kathy E. Ferguson, The Feminist Case Against Bureaucracy (Philadelphia: Temple University Press, 1984). Brooks v. Canada Safeway, [1989] 1 S.C.R. 1219, 1243-44. See Bronfman Trust v. The Queen, [1987] 1 S.C.R. 32, 52-53. Supra note 21. Supra note 24, at 52-53. See Slaight Communications Incorporated v. Ron Davidson, [1989] 1 S.C.R. 1038, 1078 (Lamer J.); Hills v. A-G of Canada, [1988] 1 S.C.R. 513, 558(L’Heureux-Dubé J.)

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29 U.S. 1 (1916) at 24. 30 Ibid. 31 See Boris Bittker, “Constitutional Limits on the Taxing Power of the Federal Government” (1987) 41 Tax Lawyer 3, 11. 32 O.P.S.E.U v. National Citizens Coalition Inc. (1987), 60 O.R. (2d) 26. 33 R. v. Oakes, [1986] 1 S.C.R. 103. 34 The Court first articulated this “purposive” approach in Hunter v. Southam, [1984] 2 S.C.R. 145. Some critics have noted that the Court has, over time, moved away from its early generous approach to rights. For an examination of the Court’s movement over time, see F.L. Morton, Peter H. Russell, and Troy Riddell, “The Canadian Charter of Rights and Freedoms: A Descriptive Analysis of the First Decade, 1982-1992” (1994) 5 National Journal of Constitutional Law 1. 35 Oakes, supra note 33, at 136-37. 36 Ibid. at 138-39. 37 Ont. Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536; CNR v. Canada, [1987] 1 S.C.R. 1114. 38 Andrews, supra note 16, at 174. 39 Supra note 2. 40 EEOC v. Sears, Roebuck and Co, 839 F. 2d 302 (7th Cir. 1988). 41 Much of the information in this section is drawn from a conversation with Mary Beth Symes and Mary Eberts, Toronto, ON, August 1995. 42 Income Ontario Public Service Employees Union v. The National Citizen’s Coalition, 74 O.R.(2d) 260 (1990). The Court concluded that the category of “people earning income from wages” was too heterogeneous, and thus not analogous to the groups enumerated in s. 15 of the Charter. 43 See Women’s Legal Education and Action Fund, Equality and the Charter: Ten Years of Feminist Advocacy before the Supreme Court of Canada (Toronto: Emond Montgomery, 1996) xviii, for a discussion of the criteria LEAF now uses for selecting cases for intervention. 44 Supra note 41. Chapter 4: Strategy and Practice 1 Didi Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality (Toronto: University of Toronto Press, 1994) 128. 2 Chris Weedon, Feminist Practice and Poststructuralist Theory (Oxford: Basil Blackwell, 1987) 131. 3 Michel Foucault, The History of Sexuality, Volume 1: An Introduction (1978) (New York: Vintage Books, 1990) 100. See also Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 (New York: Pantheon Books, 1980). 4 Dorothy E. Chunn and Dany Lacombe, eds., Law as a Gendering Practice (Oxford: Oxford University Press, 2000). 5 From C. Wright Mills, The Sociological Imagination (New York: Oxford University Press, 1959) 8, by permission of Oxford University Press. 6 Herman, supra note 1, at 144. 7 Phyllis Margaret Paryas, “Double-Voicing/Dialogism” in Irena R. Makaryk, ed., Encyclopaedia of Contemporary Literary Theory (Toronto: University of Toronto Press, 1993) 537, 538. 8 Mikhail Mikhailovich Bakhtin, The Dialogic Imagination: Four Essays by M.M. Bakhtin (Austin: University of Texas Press, 1981). 9 Richard Terdiman, Discourse/Counter-Discourse: The Theory and Practice of Symbolic Resistance in Nineteenth Century France (Ithaca: Cornell University Press, 1985) 36. 10 Record at 27, Symes v. Canada, [1989] 3 F.C. 59 (No. T-1878-86). 11 Works by Patricia Armstrong on women and work include Pat Armstrong, Labour Pains: Women’s Work in Crisis (Toronto: Women’s Press, 1984); Pat Armstrong and Hugh Armstrong, “Beyond Sexless Class and Classless Sex: Towards Feminist Marxism” (1983) 10 Studies in Political Economy 7; Pat Armstrong and Hugh Armstrong, Theorizing Women’s Work (Toronto: Garamond Press, 1990); Patricia Armstrong and Hugh Armstrong, The Double Ghetto: Canadian Women and Their Segregated Work (Toronto: McClelland and

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Stewart, 1994). Armstrong also testified as an expert in the case Action Travail des Femmes v. Canadian National Railway (1984), 5 C.H.R.R. D/2327. Affidavit of Patricia Armstrong at par. 5, Symes v. Canada, supra note 10. Ibid. at par. 15. Ibid. at par. 17. Record at 188, supra note 10. Ibid. Ibid. at 143. Ibid. at 254-55. Ibid. at 95. The specific provisions are ss. 215 and 218 of the Criminal Code, R.S.C. 1985, c. C-46 and s. 19 of the Child Welfare Act, R.S.O, 1980, c.66. Record at 91, supra note 10. Ibid. at 91-92. Ibid. at 92 Ibid. at 93. Ibid. at 96. Ibid. at 95. Ibid. at 97. Ibid. at 99. Ibid. at 108-10. Since Power had earlier raised the spectre of Marx as a means of discrediting the expert witness, it is a bit ironic to see him later pursuing an argument that so centrally engages Marxist/socialist questions of privilege and class, questions he had earlier suggested were irrelevant to the case. Record at 82-83, supra note 10. On raced codes in legal language, see Amy H. Kastely, “Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law” (1994) 63 University of Cincinnati Law Review 269. Makeda Silvera, Silenced (1989). Kathleen A. Delaney, “A Response to “Nannygate”: Untangling US Immigration Law to Enable American Parents to Hire Foreign Child Care Providers” (1994) 70 Indiana Law Journal 305-30. See discussion in chap. 2. Symes v. Canada, [1989] 3 F.C. 59. Ibid. at 71. Ibid. at 72-73. Ibid. Ibid. at 74. Ibid. at 72-73. Ibid. Ibid. at 80. Ibid. at 81, quoting Mary Eberts’s oral argument, Record at 414. Ibid. at 84. Ibid. at 86. Joe E. Hershfield, “Recent Trends in the Deduction of Expenses in Computing Income” (1989) 41 Conference Report of the Canadian Tax Foundation 44-1 at 44-2. Alan J. Dickson, “Deduct the Nanny?” (1989) 16 Nova Scotia Law News 17. Kathleen S.M. Hanly, “A Break for Working Women: Symes v. Canada” (1989) 37 Canadian Tax Journal 733 at 736. Faye Woodman, “The Charter and the Taxation of Women” (1990) 22 Ottawa Law Review 625. Faye Woodman, “A Child Care Expenses Deduction, Tax Reform and the Charter: Some Modest Proposals” (1990) 8 Canadian Journal of Family Law 371-87. Ibid. at 379. Ibid. at 387. Symes v. Canada, [1991] F.C. 507.

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Notes to pages 79-87

55 Ibid. at 522. 56 That is, in both Roman and Canon law. See Thomas C. Sandars, ed. and trans., The Institutes of Justinian, (Westport, CT: Greenwood Press, 1970) 7. Tit. II De Jure Naturali, Gentium et Civili D.i.1.1.3 translates as “The law of nature is that law which nature teaches to all animals. For this law does not belong exclusively to the human race, but belongs to all animals, whether of the air, the earth, or the sea. Hence comes that yoking together of male and female, which we term matrimony; hence the procreation and bringing up of children. We see, indeed, that all the other animals besides man are considered as having knowledge of this law.” Gratian, The Treatise on Laws (Washington, DC: Catholic University of America Press, 1993) 6-7: 1 2

57 58 59 60 61 62 63 64 65 66 67 68 69 70 71

72 73 74

75

76

Law is either natural, civil, or that of nations. Natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment. 3 For example: the union of men and women, the succession and rearing of children, the common possession of all things, the identical liberty of all, or the acquisition of things that are taken from the heavens, earth, or sea, as well as the return of a thing deposited or of money entrusted to one, and the repelling of violence by force. This, and anything similar, is never regarded as unjust but is held to be natural and equitable. Supra note 54, at 523. Ibid. at 524. Woodman, “Modest Proposals,” supra note 51, at 377. Supra note 54, at 523. Ibid. at 525. B.J. Arnold, “The Deduction for Child Care Expenses in the United States and Canada: A Comparative Analysis” (1973) 12 Western Ontario Law Review 1. Supra note 54, at 525. Ibid. at 526. Ibid. at 528. Ibid. at 530. Ibid. Ibid. at 530-31. Ibid. at 531. Ibid. Indeed, one lawyer sends an angry letter to the Supreme Court, registering his disapproval with the actions of the CBA in becoming involved in the case. Letter on file as part of the Record. Symes v. Canada, [1993] 4 S.C.R. 695 (No. 22659). For a list of the various reports, see Factum of the Canadian Bar Association, Symes, supra note 86. Factum of the Intervener, The Charter Committee on Poverty Issues, par. 23, Symes v. Canada, supra note 71. According to the Attorney General: “L’appelante a présenté une preuve pour établir que ce sont les femmes qui s’occupent le plus souvent, dans les faits, de la garde des enfants. Toutefois, rien n’indique que ce sont elles qui assument de façon plus importante que les hommes le fardeau financier de la garde des enfants.” Factum of the Attorney General of Quebec, par. 21, Symes v. Canada, supra note 71. Ibid. at par. 25: “En outre, accorder une déduction fiscale particulière uniquement aux femmes en supposant qu’elles assument la responsabilité financière première de la garde des enfants, comme le désire l’appelante, aurait pour effet de consacrer législativement une telle responsabilité alors que les législateurs tant fédéral que provincial prévoient expressément que cette obligation appartient également aux deux parents.” Ibid. at par. 31: “En demandant de déduire la totalité de ses frais de garde à titre de dépenses d’entreprise, l’appelante demande en fait non pas que la loi n’ait pas d’effet plus contraignant ou moins favorable à son égard, mais exige que la loi lui confère un avantage qui n’est pas consenti aux contribuables dont la source de revenu provient d’une

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77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123

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Notes to pages 87-102

charge ou d’un emploi ni aux hommes qui ont un revenu d’entreprise qui, tout comme l’appelante, peuvent assumer les dépenses liées à la garde des enfants. Ce traitement préférentiel n’assure pas l’égalité entre toutes les catégories de contribuables devant ou dans la loi, ni n’assure le droit au même bénéfice ou à la même protection de la loi.” Ibid. at par. 24: “lorsqu’une distinction résulte directement d’obligations assumées volontairement, l’article 15 ne devrait pas s’appliquer.” Transcript of Oral Hearing at 63-65, Symes v. Canada, supra note 71. Ibid. at 154-55. Debra McAllister, “The Supreme Court in Symes: Two Solitudes” (1994) 4 National Journal of Constitutional Law 248. Symes, supra note 71, at 727. Ibid. at 728. Ibid. at 738. Ibid. at 740-41. Ibid. at 741. Ibid. at 742. Ibid. at 743-44. Ibid. at 745. Ibid. at 746. Ibid. at 746. Ibid. at 750. Ibid. at 753. Ibid. at 758. Ibid. at 763. Ibid. Ibid. at 764-65. Ibid. at 764. Ibid. at 765-66. Ibid. at 766. Ibid. Ibid. at 767. Ibid. Ibid. at 768. This suggestion is interesting but may also be profitably read against a history in which there has never been a successful s. 15 challenge on the basis of sex to the Income Tax Act. Supra note 71 at 771. Ibid. at 772-73. Ibid. at 773. Ibid. at 776. Ibid. at 789. Ibid. at 790-91. Ibid. at 789. Ibid. at 798. Ibid. at 798. Ibid. Ibid. at 800-3. The portion of the judgment where she reviews the evidence is included in Appendix 2. Ibid. at 803. Ibid. at 804. Ibid. Ibid. at 807. “The former requires that we tax individuals in similar circumstances the same, while the latter focuses on the similar taxation of individuals in different circumstances.” Ibid. at 815. Ibid. 817. Ibid. Ibid. at 818.

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Notes to pages 102-25

124 125 126 127 128 129 130 131 132

Ibid. at 818-19. Ibid. at 821. Ibid. at 823-24. Ibid. at 824. Ibid. at 825. Ibid. Ibid. at 826. Ibid. at 828. Ibid. at 830, citing Monica Belcourt, Ronald J. Burke, and Hélène Lee-Gosselin, The Glass Box: Women Business Owners in Canada (Ottawa: Canadian Advisory Council on the Status of Women, 1991) 10. 133 Ibid. at 831-32. Chapter 5: The Limits of Judicial Power 1 Allan Hutchinson and Pam Carpenter, “Judges Shouldn’t Be Making Social Policy,” Toronto Star, 27 December 1993, at A33. 2 Reference Re Remuneration of the Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 at 63. 3 Art Gallery of Ontario, The Michael Snow Project: Visual Art, 1951-1993 (Toronto: Power Plant and Knopf, 1993) 73-74. 4 See John Willis, “Statute Interpretation in a Nutshell” (1938) 16 Canadian Bar Review 1; Elmer A. Driedger, Construction of Statutes (Toronto: Butterworths, 1983); Pierre-André Côté, The Interpretation of Legislation in Canada (Cowansville, QC: Yvon Blais, 1991); Randal N. Graham, Statutory Interpretation: Theory and Practice (Toronto: Emond Montgomery, 2001). 5 David L. Shapiro, “Continuity and Change in Statutory Interpretation” (1992) 67 New York University Law Review 921. 6 On the constraining influence of experience, practice, memory, and habit, see Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field” (1987) 38 Hastings Law Journal 805 at 817. 7 For example, see the reasons of the majority in Mossop v. Canada, [1993] 1 S.C.R. 554. The Court used legislative silence regarding sexual orientation to infer that the term “family status” could not have been meant to extend protection to same-sex couples. See also Laurence H. Tribe, Constitutional Choices (Cambridge, MA: Harvard University Press, 1985). 8 See Estey J. in Johns-Manville Canada Inc. v. The Queen, [1985] 2 S.C.R. 46 at 72: “Reasonable uncertainty or factual ambiguity resulting from lack of explicitness in the statute should be resolved in favour of the taxpayer.” For the contrary view, see Faye Woodman, “A Child Care Expenses Deduction, Tax Reform and the Charter: Some Modest Proposals” (1990) 8 Canadian Journal of Family Law 371. 9 Audrey Macklin, “Symes v. M.N.R.: Where Sex Meets Class” (1992) 5 Canadian Journal of Women and the Law 498. 10 Brooks v. Canada Safeway, [1989] 1 S.C.R. 1219; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252. 11 Supra note 9, at 508. 12 See Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at 472. 13 Schachter v. Canada, [1992] 2 S.C.R. 679. 14 See, for example, R. v. Keegstra, [1990] 3 S.C.R. 697 and R. v. Butler, [1992] 1 S.C.R. 452. The Court has not been as generous to plaintiffs in the context of claims rooted in freedom of association. See Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997). 15 Symes v. Canada, [1993] 4 S.C.R. 695 at 772-73. 16 Supra note 13. 17 Supra note 15, at 752. Chapter 6: Power, Constraint, and the Rhetoric of Choice 1 Transcript of Oral Hearing at 63, Symes v. Canada, [1993] 4 S.C.R. 695 (No. 22659). 2 Michel Foucault, The History of Sexuality, Volume 1: An Introduction (1978) (New York: Vintage Books, 1990) 86.

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3 Generally, see Pierre Schlag, “Fish v. Zapp: The Case of the Relatively Autonomous Self” (1987) 76 Georgia Law Review 37; Pierre Schlag, “The Problem of the Subject” (1991) 69 Texas Law Review 1627; Steven L. Winter, “Foreword: On Building Houses” (1991) 69 Texas Law Review 1602. 4 On the trivialization of choice in popular culture, see Elspeth Probyn, “Choosing Choice: Images of Sexuality and ‘Choiceoisie’ in Popular Culture” in Sue Fisher and Kathy Davis, eds., Negotiating at the Margins: The Gendered Discourses of Power and Resistance (New Brunswick, NJ: Rutgers University Press, 1993) 278. 5 Steven Lukes, Power: A Radical View (London: Macmillan, 1974), as quoted in Steven L. Winter, “The ‘Power’ Thing” (1996) 82 Virginia Law Review 721 at 725. 6 Martha Minow, “Choices and Constraints: For Justice Thurgood Marshall” (1992) 80 Georgia Law Review 2093 at 2093-94. 7 Record at 91-98, Symes v. Canada, [1989] 3 F.C. 59 (No. T-1878-86). 8 Ibid. at 96. 9 Ibid. at 93-98. 10 Ibid. at 92-93. 11 John Gaventa, Power and Powerlessness: Quiescence and Rebellion in an Appalachian Valley (Urbana: University of Illinois Press, 1980) 63. 12 Joan Williams, “Gender Wars: Selfless Women in the Republic of Choice” (1991) 66 New York University Law Review 1559. 13 For a classic US example of this, see EEOC v. Sears, Roebuck and Co., 839 F. 2d 302 (7th Cir. 1988). 14 Transcript of Oral Hearing at 63-65, supra note 1. 15 For a general exploration of these constraints, see Marlene Gerber Fried, ed., From Abortion to Reproductive Freedom: Transforming a Movement (Boston, MA: South End Press, 1990). 16 The CBA provided voluminous evidence supporting the proposition that this was true of the legal profession. See, for example, Law Society of Upper Canada, Transitions in the Ontario Legal Profession: A Survey of Lawyers Called to the Bar between 1975 and 1990 (Ontario: Law Society of Upper Canada, 1991). 17 Symes, supra note 1, at 740-41. 18 Ibid. at 744. 19 Ibid. at 750-51. 20 Ibid. at 752. 21 Ibid. at 763. 22 Ibid. at 764. 23 Ibid. at 763. 24 Ibid. at 764-65. 25 Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field” (1987) 38 Hastings Law Journal 805. 26 On the role of shame in policing the boundaries of “appropriate” female behaviour, see Claudia Bepko and Jo-Ann Krestan, Too Good for Her Own Good (New York: Harper Collins Publishers, 1990). 27 Record at 96-97, Symes, supra note 1. 28 Symes, supra note 1, at 766. 29 Ibid. 30 Ibid. 31 Ibid. at 767. 32 Ibid. at 768. 33 Ibid. at 773. 34 Ibid. at 825. 35 Bepko and Krestan, supra note 26, at 9. 36 Ibid. at 49. Chapter 7: Multiple Solitudes 1 Robert M. Cover, “Violence and the Word” (1986) 95 Yale Law Journal 1601. 2 Robert Gordon, “Critical Legal Histories” (1984) 36 Stanford Law Review 57 at 109.

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Notes to pages 143-5

3 Caryl Rivers, Slick Spins and Fractured Facts: How Cultural Myths Distort the News (New York: Columbia University Press, 1996). 4 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. ed. (London: Verso, 1991). 5 Rosalind Brunt, “Engaging with the Popular: Audiences for Mass Culture and What to Say about Them” in Lawrence Grossberg, Cary Nelson and Paula Treichler, eds., Cultural Studies (New York: Routledge, 1992) 69. See also John Fiske, Television Culture (London: Routledge, 1987) and David Morley, The Nationwide Audience: Structure and Decoding (London: British Film Institute, 1980). 6 Stuart Hall, “The Rediscovery of Ideology: the Return of the Repressed in Media Studies” in M. Gurevitch et al., eds., Culture, Society and Media (London: Methuen, 1982) 56. 7 I examined articles appearing on the Symes case between 17 December 1992 and 10 January 1994 in the following francophone and anglophone newspapers and magazines: Calgary Herald, Le Devoir, Financial Post Daily, Globe and Mail, Halifax Chronicle, Montreal Gazette, Ottawa Citizen, La Presse, Victoria Times Colonist, Toronto Star, Vancouver Sun, Western Report, and Winnipeg Free Press. 8 See, for example, David Vienneau, “Woman Can’t Claim Nanny for Tax Rebate,” Toronto Star, 16 December 1993, at A1; Jean Dion, “Déductions fiscals pour frais de garde d’enfants,” Le Devoir, 17 décembre 1993, at A4; John Geddes, “Top Court Denies Child-Care Claim,” Financial Post, 17 December 1993, at 3; Bob Cox, “No Child-Care Deductions for Self-Employed Women, Split Supreme Court Rules,” Chronicle Herald, 17 December 1993, at C14; Bob Cox, “Child Care Not a Business Cost,” Winnipeg Free Press, 17 December 1993, at A2; David Vienneau, “Woman Can’t Claim Her Nanny’s Salary as Business Expense,” Toronto Star, 17 December 1993, at A15; Stephen Bindman, “Can’t Deduct Nanny’s Salary, Top Court Rules,” Montreal Gazette, 17 December 1993, at B1; “Should the Cost of Child Care Not Be Allowed as a Business Expense?” Montreal Gazette, 19 December 1993, at B3. 9 Peter Calamai, “Income-tax case took the wrong tack,” Vancouver Sun, 21 December 1993, at A10; Peter Calamai, “Child-Care Fumbling in High Court,” Ottawa Citizen, 18 December 1993, at A10. 10 See “The Taxman and the Children,” Globe and Mail, 20 December 1993, at A12 (proclaiming of the majority that “the court was right”). See also William Johnson, “The Cause of Feminism in Canada Advanced through Losses during 1993,” Ottawa Citizen Valley, 30 December 1993, at A9 (declaring the dissenting reasons to be “a feminist landmark,” and one of the high points of 1993). 11 See “They Just Don’t Get It: Decision Shows Need for More Women on the Bench,” Montreal Gazette, 19 December 1993, at B2; Karen Gram, “Tax Ruling on Child Care Offensive, Women Say,” Vancouver Sun, 17 December 1993, at A4; William Johnson, “Male Bias: Club Dues, Wining and Dining Considered Business Expenses – Why Not Child Care?” Montreal Gazette, 17 December 1993, at B3; “Some Men Never Seem to Understand,” Calgary Herald, 21 December 1993, at A4. 12 “Splitting the Court,” Calgary Herald, 4 January 1994, at A4. 13 See Cecilia Forsyth, “Parenthood and Taxes,” Globe and Mail, 10 January 1994, at A10. See also Cecilia Forsyth, “Tax Laws Should Treat All Children Equally,” Vancouver Sun, 3 January 1994, at A11. 14 R. J. Angus, “Taxpayers Shouldn’t Foot Bill for Personal Decision to Have Kids,” Vancouver Sun, 22 December 1993, at A12; as an example of a satiric response in kind, see Diane Turner, “Are Sports a More Legitimate Deduction than Child Care?” Vancouver Sun, 24 December 1993, at A16. 15 “The Princess and the Pea: A Feminist Lawyer Won’t Be Allowed to Deduct Her Nanny’s Salary,” 8: 49 Western Report, 3 January 1996, at 16. 16 See Marie-Claude Lortie, “Les travailleuses autonomes ne peuvent déduire les frais de garde comme dépenses d’entreprise,” La Presse, 17 décembre 1993, at A4; Daryl Slade, “Opinions Divided on Child-Care Vote,” Calgary Herald, 17 December 1993, at A3; Sean Fine, “Female Lawyer’s Child-Care Claims Rejected,” Globe and Mail, 17 December 1993, at A1; Agnès Gruda, “La ligne des sexes,” La Presse, 18 décembre 1993, at B2; Isabelle Paré, “Les femmes révoltées par le jugement Symes,” Le Devoir, 18 décembre 1993, at A1;

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“Child-Care Tax Ruling Welcomed by Some Women,” Vancouver Sun, 17 December 1993, at A6; “Women’s Group Backs Rejection of Tax Claim,” Toronto Star, 18 December 1993, at A16; Bob Cox, “Women Hail Court’s Ruling on Tax Breaks,” Winnipeg Free Press, 18 December 1993, at A3; “NAC Backs Child-care Tax Ruling,” Victoria Times Colonist, 18 December 1993, at I14. Allan Hutchinson and Pam Carpenter, “Judges Shouldn’t Be Making Social Policy,” Toronto Star, 27 December 1993, at A33. Stephen Bindman, “Child-care Ruling Divides Judges on Gender Lines,” Ottawa Citizen, 17 December 1993, at A1; “A Tax Break for Us All,” Vancouver Sun, 18 December 1993, at A18; Peter Calamai, “Child-care Fumbling in High Court,” Ottawa Citizen, 18 December 1993, at A10; “Subsidizing Child Care,” Toronto Star, 3 January 1994, at A14; Ann Rauhala, “Is Lunch More Legitimate than Taking Care of Kids?,” Globe and Mail, 20 December 1993, at A2; Brian Costello, “Clever Tactics Make Child Care Deductible,” Calgary Herald, 26 December 1993, at C15. “A Tax Break for Us All,” Vancouver Sun, 18 December 1993, at A18. “Should the Cost of Child Care not be Allowed as a Business Expense?” Montreal Gazette, 19 December 1993, at B3. “Question of the Week,” Montreal Gazette, 26 December 1993, at B3. Comments reprinted by permission of the Gazette. See the discussion of these debates in chap. 1.

Chapter 8: Class and Gender on the Terrain of Need 1 Nancy Fraser, Unruly Practices: Power, Discourse and Gender in Contemporary Social Theory (University of Minnesota Press, 1989) 161. This argument first appeared in her article “Talking About Needs: Interpretive Contests as Political Conflicts in Welfare-State Societies” (1989) 99: 2 Ethics 294. Copyright © 1989 by the University of Chicago. 2 Unruly Practices, ibid. at 162. 3 The reasons for the shift from discourses of rights to discourses of need is complex. In part, this shift may be the result of recent and increasing frustration with the ways that rights talk has seemed unable to deliver on some of the promises that people held for it. See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991); Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational Publishing, 1994); Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997). At the same time, it is useful to keep in mind the comments of those pointing out the irony that rights have begun to be devalued as a tool at the very moment that historically disadvantaged groups have begun using them. As one scholar put it, “Only those who least need rights in order to secure their existence have the luxury of abandoning rights as an organizing jurisprudential principle” Monica J. Evans, “Stealing Away: Black Women, Outlaw Culture and the Rhetoric of Rights” (1993) 28 Harvard Civil Rights-Civil Liberties Law Review 263, 292. A similar theme runs through Patricia Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991). 4 By “experts,” I mean those activists and academics who had a more than passing familiarity with the case and the issues it raised. 5 Fraser, supra note 1; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990). 6 Fraser, supra note 1, at 163. These chains of “in-order-to” relations were certainly present in the “but for” test that was so much discussed in the Symes case. This test was discussed as the Court determined the meaning to be given to the term “profit from business.” One argument was that “but for the availability of child care, Symes would be unable to earn income from business.” It was exactly this chain of reasoning that was under attack in the discussion seen in both US and Canadian tax courts of the proposed use of the “but for” test. 7 Fraser, “Talking About Needs,” supra note 1, at 294. 8 Ibid. at 305. 9 Quoted in John Geddes, “Top Court Denies Child-Care Claim,” The Financial Post, 17 December 1993, at 3.

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10 Elaine Newman, “Fair Tax Treatment for Child Care Takes Centre Stage in Canada” (1993) 17 Canadian Lawyer 12. 11 A. Marguerite Cassin, “Equitable and Fair: Widening the Circle” in Allan M. Maslove, ed., Fairness in Taxation: Exploring the Principles (Toronto: University of Toronto Press, 1993) at 104. 12 Donna M. Eansor and Christopher Wydrzynski, “‘Troubled Waters’: Deductibility of Business Expenses under the Income Tax Act, Child Care Expenses and Symes” (1993) 11 Canadian Journal of Family Law 249, 255. 13 Quoted in Daryl Slade, “Opinions Divided on Child-care Vote,” Calgary Herald, 17 December 1993, at A2. 14 Ibid. 15 Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational Publishing, 1994) 444, note 83. 16 Ibid. at 452. 17 “Women’s Group Backs Rejection of Tax Claim,” Toronto Star, 18 December 1993, at A16. 18 Ibid. 19 For example, REAL Women has intervened on the opposite side from feminist-influenced groups like LEAF, NAC, and EGALE in several high profile Supreme Court cases, including Mossop v. Canada, [1993] 1 S.C.R. 554, and Vriend v. Alberta, [1998] 1 S.C.R. 493. 20 Cecilia Forsyth, “Tax Laws Should Treat All Children Equally,” Vancouver Sun, 3 January 1994, at A11. 21 The group supporting the Kids First test case unsuccessfully argued for the taxation rights of stay-at-home parents. While the Kids First group agreed with Symes that the tax system needed an overhaul, it disagreed with the form her challenge took. 22 Slade, supra note 13. 23 Dianne Pothier, “M’aider, Mayday: Section 15 of the Charter in Distress” (1996) 6 National Journal of Constitutional Law 295 at 319. 24 Faye Woodman, “The Charter and the Taxation of Women” (1990) 22 Ottawa Law Review 625. 25 Claire F.L. Young, “Child Care and the Charter: Privileging the Privileged” (1994) Review of Constitutional Studies 20; Claire F.L. Young, “(In)Visible Inequalities: Women, Tax and Poverty” (1995) 27 Ottawa Law Review 99. 26 Judy Fudge expresses this concern in Brenda Cossman, “Dancing in the Dark: A Review of Gwen Brodsky and Shelagh Day’s Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back?” (1990) 10 Windsor Yearbook of Access to Justice 22. 27 See, in particular, Makeda Silvera, Silenced (1989). 28 Cossman, supra note 23, at 235. 29 Ibid. at 234. 30 Audrey Macklin, “Symes v. M.N.R.: Where Sex Meets Class” (1992) 5 Canadian Journal of Women and the Law 498 at 515-16. 31 See “From Redistribution to Recognition? Dilemmas of Justice in a ‘Postsocialist’ Age” in Nancy Fraser, Justice Interruptus: Critical Reflections on the “Postsocialist” Condition (London: Routledge, 1996). See also the discussion of distributional justice in Young, supra note 4. Fraser’s redistribution/recognition model has generated its own controversy. See Susan Boyd, “Family, Law, and Sexuality: Feminist Engagements” (1999) 8 Social and Legal Studies 369. 32 On these earlier discourses, see Carol Lee Bacchi, Liberation Deferred? The Ideas of the English-Canadian Suffragists, 1877-1918 (Toronto: University of Toronto Press, 1983); Margaret E. McCallum, “Prairie Women and the Struggle for a Dower Law, 1905-1920” in Tina Loo and Lorna R. McLean, eds., Historical Perspectives on Law and Society in Canada (Toronto: Copp Clark Longman, 1994) 306. 33 Eansor and Wydrzynski, supra note 12, at 255. 34 Supra note 17. 35 Some of these disputes are described in Jill Vickers, Pauline Rankin, and Christine Appelle, Politics as If Women Mattered: A Political Analysis of the National Action Committee on the Status of Women (Toronto: University of Toronto Press, 1993).

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36 The question of “rights” or “needs” is in fact right at the centre of these strategic debates. One might, for example, argue that Symes was misguided to deploy the discourse of need in the courtroom because courts are less likely to be swayed by the discourse of need than are politicians. But even if it were true that politicians were more likely than judges to be compelled by the discourse of need, there would still be good strategic reason for deploying the language of need in the courtroom. On the assumption that court dramas can also become public dramas, even an unsuccessful legal case could successfully generate an increased public discussion about childcare needs. In effect, one might conclude that “success” was to be measured less in terms of a “win” than in terms of an ability to use litigation to publicize an issue that had been pushed off the traditional political agenda. Chapter 9: Lessons to Be Learned and a Case to Be Remade 1 Michel Foucault, The History of Sexuality, Volume 1: An Introduction (1978) (New York: Vintage Books, 1990). 2 Steven L. Winter, “The ‘Power’ Thing” (1996) 82 Virginia Law Review 721. 3 Patricia S. Mann, Micro-Politics: Agency in a Post-Feminist Era (Minneapolis: University of Minnesota Press, 1994); see also Julia Penelope, “Language and the Transformation of Consciousness” (1986) 4 Law and Inequality 379. 4 Quoted from Patricia S. Mann, Micro-Politics: Agency in a Post-Feminist Era (Minneapolis, 1994) 161-62, by permission of University of Minnesota Press. Copyright © 1994 by the Regents of the University of Minnesota. 5 Joseph Vining, The Authoritative and the Authoritarian (Chicago: University of Chicago Press, 1986) 17-18. 6 Quoted from Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto, 1994) 443-44 (note 83), 452, by permission of Thompson Educational Publishing. 7 Chap. 2, note 16. 8 Chap. 2, note 28. 9 Chap. 3, note 7. 10 Chap. 2, note 62. 11 Proverbs 31:10. 12 Two authors summarize the “women’s code of goodness” as follows: be attractive, be a lady, be unselfish and of service, make relationships work, be competent without complaint. See Claudia Bepko and Jo-Ann Krestan, Too Good for Her Own Good (New York: HarperCollins Publishers, 1990). The codes for being a good man – the codes for masculinity – are quite different but are no less rigid than those for femininity. See Michael S. Kimmel, Manhood in America: A Cultural History (New York: Free Press, 1996). 13 Cited in Bram Dijkstra, Idols of Perversity: Fantasies of Feminine Evil in Fin-de-Siècle Culture (Oxford: Oxford University Press, 1986) 13. 14 See Wayne Roberts, “‘Rocking the Cradle for the World’: The New Woman and Maternal Feminism, Toronto 1877-1914” in Linda Kealey, ed., A Not Unreasonable Claim: Women and Reform in Canada, 1880s-1920s (Toronto: Women’s Educational Press, 1979) 30. 15 Joan C. Williams, “Virtue and Oppression” in John W. Chapman and William A. Glaston, eds., Virtue: Nomos XXXIV (New York: New York University Press, 1992) 309. See also Stephanie Golden, Slaying the Mermaid: Women and the Culture of Sacrifice (New York: Harmony Books, 1998). 16 On the construction of moral panics generally, see Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (London: MacGibbon and Kee, 1972). See also Erich Goode and Nachman Ben-Yehuda, Moral Panics: The Social Construction of Deviance (Cambridge, MA: Blackwell, 1996). See also Carolyn Strange, Toronto’s Girl Problem: The Perils and Pleasures of the City, 1880-1930 (Toronto: University of Toronto Press, 1995) on the moral panic associated with the nineteenth-century societal fear that girls were failing to emerge from their childhoods as selfless women. 17 For a discussion of the underlying principles used by LEAF to select cases in which it will intervene, see Women’s Legal Education and Action Fund, Equality and the Charter: Ten Years of Feminist Advocacy before the Supreme Court of Canada (Toronto: Emond Montgomery, 1996).

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Notes to pages 184-95

18 Conversation with Mary Eberts and Mary Beth Symes, August 1994. See also her comments in a newspaper interview in La Presse where she says : “En lançant cette cause, il y a 12 ans, pour provoquer des changements ... On a dit que ma cause était étroite, que j’étais privilégiée ... Mais imaginez si c’est un problème pour moi qu’est-ce que ça doit être pour une mère seule qui travaille chez Woolco au salaire minimum?” See MarieClaude Lortie, “Les travailleuses autonomes ne peuvent déduire les frais de garde comme dépenses d’entreprise,” La Presse, 17 décembre 1993, at A4. 19 This is one of the central concerns of Lacanian theory. For a discussion of the insights and limits of Lacan’s theory, see Mann, supra note 3, at 78-86. See also Rosine Lefort and Robert Lefort, Birth of the Other (Urbana: University of Illinois Press, 1994). 20 Mann, ibid. at 71. For a similar argument concerning the impact of violence, see William Ian Miller, Humiliation: And Other Essays on Honor, Social Discomfort, and Violence (Ithaca: Cornell University Press, 1993). 21 That is, a man was physically capable of getting and leaving a woman with child, and of being able to do this with or without her consent. “Any man could ... act upon any woman in a way she could neither refuse, nor reciprocate, nor forget (given pregnancy as a consequence).” Mann argues that the temporal asymmetry of what she calls “immediate male spermatic potency and long-term female connection and obligation” provided the basis for the development of very specific male/female recognition relations. Ibid. at 68. 22 Ibid. at 71. 23 Ibid. at 83. 24 Jean Bethke Elshtain, Public Man, Private Woman: Women in Social and Political Thought (Princeton, NJ: Princeton University Press, 1981). See also Phyllis Moen, Women’s Two Roles: A Contemporary Dilemma (New York: Auburn House, 1992). 25 Mann, supra note 3, at 79. 26 Susan Boyd, “Family, Law, and Sexuality: Feminist Engagements” (1999) 8 Social and Legal Studies 369. 27 Ibid. at 372. 28 Margrit Eichler, “The Elusive Ideal – Defining Equality” (1988) 5 Canadian Human Rights Yearbook 167. 29 Boyd, supra note 27, at 378. 30 Winter, supra note 2, at 835. 31 See chapter 8 note 13. 32 Zillah R. Eisenstein, The Female Body and the Law (Berkeley: University of California Press, 1988) 43. 33 Carol Smart, Feminism and the Power of Law (London: Routledge, 1989) 162. 34 Ibid. at 164. 35 Ibid. at 165. 36 Karl Marx and Frederick Engels, The German Ideology (New York: International Publishers, 1981) 41, as paraphrased in Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) 1. 37 Sheilah McIntyre, “Gender Bias within the Law School: The Memo and Its Impact” (198788) 2 Canadian Journal of Women and the Law 362, 370. 38 Quoted in Chris Weedon, Feminist Practice and Poststructuralist Theory (Oxford: Basil Blackwell, 1987) 22. 39 Or, as White puts it, language is perpetually remade by its speakers who are themselves remade in what they say. James Boyd White, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character and Community (Chicago: University of Chicago Press, 1985) 19. 40 Lev Semenovich Vygotsky, Thought and Language (1934) (Cambridge, MA: MIT Press, 1986). 41 Shelley A.M. Gavigan, “Women, Law and Patriarchal Relations: Perspectives within the Sociology of Law” in Neil Boyd, ed., The Social Dimensions of Law (Scarborough, ON: Prentice-Hall Canada, 1986) 107.

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Abortion, 89, 125, 129 Anderson, Benedict, 144 Andrews v. Law Society of British Columbia, 37, 104, 139 Aristotle, 6 Armstong, Patricia (Dr.): evidence at trial, 60-64, 72-73, 84, 114; expertise, 60, 210n11; expertise challenged, 63-64; referred to in court judgments, 75, 77, 80, 81, 90, 102 Arnold, B.J., 81 Attorney General of Quebec, 83, 89, 119; arguments adopted by Supreme Court, 94; factum of, 86-87; motivation for intervention, 86 Bahktin, Mikhail Mikhailovich, 210n8 Baird, Zoe, 71 Baldwin v. Commissioner, 33, 35, 36, 39, 45, 48 Basketball, 177 Bill of Rights (US), 36 Bittker, Boris, 45 Blame: in media coverage, 145; rhetoric of, 125, 136-40, 182. See also Discourse, of choice; Shame Bliss v. A.G. Canada, 37 Bowers v. Harding, 22-23, 38, 75 Boyd, Susan, 188-89 Brodsky, Gwen, 37 Bronfman Trust v. The Queen, 44 Brooks, Neil, 10 Brooks v. Canada Safeway, 41 Brushaber v. Union PaciWc Railroad, 44 Business: childcare needs independent of, 80; as gendered construct, 41, 92, 109, 126, 132; as gender-neutral concept, 40, 80 Business expense: adverse impact of

disallowing childcare as, 73-74, 76-77, 83-84, 93-96, 104-6; “but for” test, 22, 24, 35, 217n6; consistent with ordinary business principles, 39, 74; constraints on court in interpretation of, 111-21; equally available to men and women, 73, 80, 84, 93, 97-98, 150-51; gender in construction of, x, 83-84, 92, 97-99, 101-2, 146, 151-52, 167; hybrid expenses, 40, 42, 43-44; indicia for identifying legitimacy of, 39-42, 90-91; interrelationship with childcare deduction (see also Income Tax Act, s. 63, complete code for childcare), 42-44, 75-76, 78, 80-81, 86, 92, 98-103, 114-15; liberalization of, 39-40, 74-75, 78, 98; personal or living expenses excluded from, 23-24, 39-42, 66-68, 72, 75, 90-92, 114, 155; policy concerns inXuencing characterization of, 92, 114; public/private divide in determination of, 21-25, 153-54, 155; reasonable amounts, 65, 75; unavailable to wage earners, x, 49-50, 78, 87, 151; US constitutional equality challenges to, 33-35. See also Childcare expense; Income Tax Act, ss. 9 and 18 Businesspeople: challenge to genderneutrality of, 97-98, 167, 186-87; differential tax treatment of wage earners and, 49-50, 78-79, 87, 101, 103-4, 146; expert evidence regarding self-employed women, 60-61, 83-84; in a loss position, 138; myth of privileged business woman, 103, 105-6; Symes’s focus on, to exclusion of women employees, 95, 138 Camp, J.J., 88-89

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Canada Assistance Plan (CAP) (1966), 25, 29 Canada Pension Plan contributions, 50, 73 Canadian Advisory Council on the Status of Women (CACSW), 28-29 Canadian Bar Association: factum of, 83-84; report of Task Force on Gender Issues Within the Legal Profession, 83-84, 200-1; on women’s choice to have children, 88-89 Canadian Bill of Rights, 37 Canadian Day Care Advocacy Association, 51 Cardero, Lillian, 71 Carpenter, Pam, 109 Carter Commission. See Royal Commission on Taxation Cassin, A. Marguerite, 163 Charitable Donations, 43-44 Charter: application to social beneWts legislation, 93, 123, 191; application to tax legislation, 47; differential impact on poor and wealthy, 179; feminist litigation under, 37-38; framework of, 45-47; as an interpretive aid, 76; positive and negative rights under, 37-38; as standard for scrutinizing legislation, 76 Charter Committee on Poverty Issues (CCPI), 83-85, 93 Charter equality guarantee (s. 15): basic propositions, 93; burden to establish violation, 46, 118, 120; imposing obligations on government, 37-38, 81, 85-86; not violated in Symes, 81-82, 87, 93-96; and “preferential” treatment, 82, 87; prohibiting grounds of discrimination, 47, 82, 87; trivializing of, 45, 81, 85, 93, 123; violated in Symes, 47, 76-77 Charter justiWcations (s. 1): governmental obligation to establish, 46-47, 74, 96, 118, 119 in Symes: adequacy of, 73-75, 77, 82, 94, 96; complexity of, 117-24 state of law in 1980s, 45-47; Child and Family Services Act (Ontario), 65 Childcare: as devalued form of work, 70; family responsibility for, 20-21, 30, 32, 180; federalism and jurisdiction over, 19-20, 29, 31; gendered experience of, 61, 77, 103-5, 116, 137, 164, 153, 155; history of debates about, xi, xiii, 16-17, 25-32; impact on men’s employment, 60, 84, 99, 130, 201-2; impact on

women’s employment, 16-17, 19, 28, 41, 60, 84, 98-99, 102, 104-5,130, 201-2; independent of business needs, 80; legal vs. social burden of, 95, 134-36; litigation over, xiii, 22-25, 3335; lobbying and grassroots activism, 25-32; maternal responsibility for, 17, 20-21, 22, 34, 52, 77, 103, 105, 129, 131, 155-56, 180, 208n68; needs independent of economic class, 153; parental responsibility for, 20-21, 30-31, 153; as private matter, 40-41; privatization of, 32, 52, 114, 172, 191; as public concern, 15, 26, 167; social vs. Wnancial costs of, 94, 98, 103, 122, 134, 191; viewed as a “women’s issue,” 151-52; and wartime emergency, 18-21; women carrying disproportionate burden of, 47-48, 94, 103; women’s choice to carry burden of, 67-68, 99, 126-27, 129, 135. See also Obligation; Responsibility Child Care Advocacy Association of Canada, 169 Childcare deduction. See Income Tax Act, s. 63 Childcare expense: as family expense, 34; giving meaning to, 132-33; legal duty to share burden of, 94, 134-36; personal/private nature of, 14, 15, 22, 26, 35, 72, 90-91, 114; pre-Charter tax treatment of, in Canada, 23-24; tax treatment of, in Britain, 22-23; tax treatment of, in US, 24, 42; as unique, 91; women and burden of, 34, 94, 122. See also Income Tax Act, ss. 18 and 63 Childcare expense credit, 31. See also Tax credits Children, as personal/lifestyle choices, 91, 99, 129-31 Choice: childcare decisions and, 31, 65; constraints on women’s, 89-90, 127-31; inequitable preconditions governing, 140; inXuences of social structures on, 127-28, 131; negated by force, 125, 127-28, 134; not a ground for discrimination, 48-49, 87, 126-27; social meaning of, 126, 128, 132, 140; women’s choice to have children, 88-90, 91, 128-30, 132, 191. See also Discourse, of choice Citizenship, 144 Class: choice, responsibility, and, 128, 130-31, 137, 140; concern with, in expert response, xiv, 159-60, 163-66, 167-73, 178-79; concern with, in

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nonexpert response, 145-46, 152-53, 156-57; gender and childcare needs, 153; at the intersection of privilege and disadvantage, 140, 174; and Marxism, 61-62, 211n30; negative implications of success in Symes, 48, 78-79, 139-40, 163-64; not a ground for discrimination, 50; and poverty, 95, 138; splits in the women’s movement over, 52; Symes as beneWciary of privilege, x, 51, 68-71, 83, 104, 140, 178-79; tax categories and, 51, 104, 153; used to police gender codes, 139-41 Constraint. See Choice, constraints on women’s; Supreme Court of Canada, constrained by Cooke Report. See Federal Tax Force on Child Care Cossman, Brenda, 165 Crenshaw, Kimberlé, 6 Criminal Code of Canada, 65 Cullen, Justice. See Symes v. Canada, Federal Court, Trial Division Curie, Marie, ix, v Davis, Angela, 6 Day, Shelagh, 37 Day nurseries, 18-21, 27, 61, 180 de Baat, Lynette 163 de Beauvoir, Simone, 6 Décary, Justice. See Symes v. Canada, Federal Court of Appeal de Saussure, Ferdinand, 194 Dialogic readings, 58 Dickson, Alan, 78 Difference. See Equality, sameness/ difference Discourse: appropriation of progressive, 139 of choice: in assigning responsibility, xiv, 125-31; as binary decisionmaking model, 125-128, 130, 140; in deXecting responsibility, 131-36; and disciplinary tools of blame and shame, 125, 136-40; and liberal autonomous self, 125, 154-55; as mechanism of power, 128, 192; in nonexpert response, 154-56; shifting focus from social pressures to individual choice, 66-68, 88-89; simplifying tendencies of, 126, 194; and social construction of gender, 128-31, 136; in struggles over meaning, 128, 140-41, 192; symbolic value of, 125; in Special Committee on Child Care, 30-31; in Supreme Court, 124, 125-41, 192

competing discourses in legal arena, xiii-xi, 57-59, 79, 142, 156-58, 173, 174-75 (see also Choice) of constraint, 124, 132, 133, 136, 138 (see also Supreme Court of Canada, constrained by) expert, 162-63, 171-72 and material injustice, 188-89, 195 of need: and conXict over class and gender, xiv, 159; as major vocabulary of political discourse, 159-64; in expert response, xiv, 163-73; links with discourse of rights, 159-60; in nonexpert response, 152-53; used to challenge public/private divide, 166 (see also Need) oppositional, 161, 163, 166-67, 171-72 power of, 57-59 (see also Language; Meaning) reprivitization, 32, 52, 161-62, 167, 172, 191 restructuring, xi, 32 of rights: under Canadian Bill of Rights, 37; as challenge limits of the political, 159; under the Charter, 37-38; dismantling services for women, 37; emphasizing class/gender conXict, xiv; in expert response, xiv, 166; increasing deployment in Canadian courts, 37; infrequently deployed in Canada before 1960s, 36-37; links with discourse of needs, 159-60; in nonexpert response, 152 of selWshness, 20, 183, 192; as disciplinary method, 136, 139 (see also SelWshness) and sociological vs. liberal individualist explanations of social life, 158-206 Discrimination: adverse impact, x, 44, 47-48, 73, 115-16; and choice, 48-49, 87, 126-27; insufWcient evidence of adverse impact, 93-96, 103, 121-22, 134, 138 Discrimination based on: class, 115-16, 151; commercial economic practices, 73; gender, 35 77, 82, 83-84, 86, 95-96, 115-16, 137-38, 150-51; incomeearning status 87, 101, 151; parental status, 77, 79-82, 83-84, 86, 95, 116, 138, 151; parent/employer status, 73 Dominion-Provincial Wartime Day Nurseries Agreement, 19-21 Eansor, Donna M., 163 Eberts, Mary: critiqued by Mandel, 164, 178-79; development of strategy in

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Symes, 49-51; examination of Symes at trial, 64-65; involvement in feminist activism, 49, 51, 52; and politics of naming, 62-63, 88; at the Supreme Court, 88-90, 131-32 Eisenstein, Zillah R., 193 Employees: differential tax treatment of businesspeople and, 49-50, 78-79, 101, 103-4, 146; Symes’s failure to attend to needs of women, 95, 138 Enemies. See Friends and enemies Epstein, Debbie, 6 Equality: application of, to US federal taxing power, 44-45; Canadian law in 1980s, 45-47; delivering only symbolic gains, 37, 172; formal, 36, 44-45, 66-67, 73, 79, 114; and preferential treatment, 87; and privilege, 104; sameness/ difference, 4-7, 35, 149-51, 157; statutory prescriptions of, 131; substantive, 114 Equality arguments raised in Symes: doctrinal and political complexity of, 115-18, 120-21; potential hazards of, 48-49; lack of attention to women employees in, 95, 138; focus (on class, gender, parental status) in, x-xii, 48, 73, 83-87, 93-96, 97-98, 101-6, 116, 138-40, 145-46, 149-60, 163-66 Essentialism, 3-10 Evidence: asserted irrelevance of expert in Symes, 61-64; and factual foundation in Symes, 50, 64, 66; insufWcient adverse-impact evidence in Symes, 93-96, 103, 121-22, 134, 138; need for expert in Symes, 40, 41, 47-48, 57, 127, 132; of Symes, concerning actual expenses, 65 Expert responses to Symes: xiv, 78-79, 159-73, 178-79; class disadvantage, 163-64; conXicts over strategy, xiv, 164-66, 171-73; gender disadvantage, 163. See also Nonexpert responses to Symes Experts. See Discourse, expert; Evidence “Family decisions,” 92-93, 94, 135, 167 Farmers, 138, 139 Fathers: as caregivers, 48, 97-98, 116, 139; and choice to have children, 129-31; discrimination against, 29; impact of children on employment of, 60, 84, 99, 130, 201-2; obligation to work, 155 Federal Tax Force on Child Care, 30 Federalism, 19-20, 29, 31-32, 45 Feminist theory: and challenges to

gender neutrality, 4; and litigation for equality under Canadian Bill of Rights, 37; on power, essentialism, and identity, 3-10, 174; and the public/ private divide, 13-15; and the sameness/difference debates, 4-5. See also Women’s movement Foreign domestic. See Race Forsyth, Cynthia, 164 Foucault, Michel, 8-9, 125, 128, 176, 190 Frames, xiv, 143, 147, 156-58, 172, 173, 175. See also Nonexpert responses to Symes Fraser, Nancy, 159-63, 166-68, 172 Free trade, 32 Friendly, Martha, 164, 171 Friends and enemies, 178-79, 183, 190-93 Gavigan, Shelley A.M., 195 Gavison, Ruth, 14 Gender, social construction of: choice and, 130-31, 136; codes for female behaviour in, 139; participation of court in, 136, 139, 141. See also Meaning Gender bias: court accused of, 145; in interpretation of business expense, 72, 92, 97-102, 105; in the legal profession, 83-84, 130, 200-1; in media reporting, 151-52 Gender neutrality: of business needs/expenses, 72, 80, 97, 151-52, 202; challenges to, by second-wave feminists, 4-5; discourse of choice and, 128-31; in equality theory, 79; and ideal worker, x, 167, 186-87, 201; and parenthood, 48, 116, 151, 170 Gender split. See Supreme Court of Canada, gender split on Gordon, Robert, 142-43 Government: conservative vs. liberal responses to childcare, 29-32; limited economic resources of, 191; petitioning government to act, 160 Grant, Isabel, 163 Habermas, Jürgen, xiv Hall, Stuart 144 Hanisch, Carol, 14 Hanley, Kathleen, 78 Hans, James S., 39 Hartle, Douglas G., 27 Harvey, Kathy 164 Herman, Didi 57, 58 HershWeld, Joe, 78

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Hill Collins, Patricia, 7, 8 Holy Grail, 190 Hutchinson, Allan, 109, 172 Hybrid expenses. See Business expense, hybrid Iacobucci, Justice Frank: on adequacy of s. 1 argument, 119; on blame and shame, 137-40; on the court as constrained, 122-23, 134-36; judgment in Symes v. Canada, 90-96; and language of selWshness, 138, 180; and rhetoric of choice, 132-36, 138-41. See also Symes v. Canada, Supreme Court of Canada Ideal worker, x, 167, 186-87, 201. Income Tax Act: amendments to, 18-21, 21-22, 25, 28 basic structure of, 38-39 main assertions for challenger to meet: that childcare is personal, 38-42, 72, 75, 80, 90-92, 97-99, 111-14; that limited deduction is not discriminatory, 38, 44-49, 73-74, 76-77, 81-82, 93-96, 115-18; that s. 63 is a legislative complete code for childcare, 38, 42-44, 72-73, 75-76, 80-81, 92-93, 100-1, 103-6, 114-15 as major vehicle for redistribution of resources, 188-89 non-gender neutrality of, 188 s. 3: discussed in trial judgement, 75-76; pre-trial assessment of, 39; raised at trial, 67 s. 4: pre-trial assessment of, 39, 43; raised at trial, 67 s. 8, 49 s. 9: as constraint on court, 113, 114, 122, 133; discussed in Federal Court of Appeal judgment, 80; discussed in Supreme Court dissent, 97, 99-100, 101, 102; discussed in Supreme Court majority, 93; discussed in trial judgment, 75-76; pre-trial assessment of, 39; raised at trial, 67 s. 18: as constraint on court, 113, 114, 133; discussed in Federal Court of Appeal judgment, 80-81; discussed in Supreme Court dissent, 98-100; discussed in Supreme Court majority, 90-91, 93; discussed in trial judgment, 74-76; impact of obligation on, 66; pre-trial assessment of, 39, 42; raised at trial, 66-67 s. 63: available to income and wage earners, 80-81, 86, 93, 100-1, 114;

available to men and women, 28, 30, 36, 48, 97-98; beneWt to women, 73, 81-82; complete code for childcare, 42-44, 80, 92-93, 99-101, 102; conceded by government at trial, 73; as constraint on court, 112-15, 119, 121-23, 133, 134, 137, 138; discussed by commentators, 78, 171-72; discussed in Federal Court of Appeal judgment, 80-82; discussed by intervenors, 86; discussed in Supreme Court dissent, 97, 99-103, 105; discussed in Supreme Court majority, 90, 92-96; discussed in trial judgment, 75-77; historical/legal context surrounding enactment of, 93, 100-1, 102; increases to monetary limits in, 30, 208n49; pre-trial assessment of, 28, 30, 39, 42-44, 47, 50; raised at trial, 67, 71, 72-73; as tax expenditure, 11-12 treatment of women and childcare, 18, 21-25, 28, 30, 38-39, 49-50, 167, 171 vertical inequities in, 78-79, 101 See also Business expense; Childcare expense; Taxation; Tax credits; Tax deductions; Tax expenditures Internal Revenue Code (US), 33-36, 42, 44-45, 48 Intersectionality: and attention to privilege and disadvantage, xii, 7-8, 15, 71, 139, 140; historicized theory of, 174; impact of, on public debate, 143; Supreme Court adverts to feminist discussions of, 139-40; Symes as a study of, ix-xv; theoretical foundations of, 3-10. See also “Power and Wound” “Issues.” See “Troubles and issues” Judicial decision making: constrained by the social, 134-35; constraints on, 110-11, 141; legitimacy of (see Jurisdiction of the courts) Judicial notice, 94, 134, 191 Judicial reference, 11, 35, 36, 73, 82, 85, 117 Judicial review: of “political questions,” 117; of social welfare legislation, 117; of tax legislation, 44-45, 79 Jurisdiction of the courts: judicial vs. legislative role, 118-19, 120, 133, 136; legal vs. social domains, 94, 134-36 Juvenile delinquency, 21, 182 Kids First, 164, 168, 171, 187

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Lamer, Chief Justice Antonio, 110, 111, 116 Language: and authority, 62-63; and construction of knowledge, 57, 193-95; and deployment of liberal individualist and sociological paradigms (see also “Troubles and issues”), 56-106; of Income Tax Act used in Symes 65; professional, 58. See also Discourse; Meaning Lavell, A.G. Canada v., 37 Law: as arena of struggle, 57-59, 193; re-translated in public forums, 147, 157; symbolic importance of, 195; as a tool of social justice, 193 LEAF (Women’s Legal Education and Action Fund), 49, 51-53 L’Heureux-Dubé, Madame Justice Claire: challenges discourse of selWshness, 138-39; disputes inadequacy of evidence, 122; dissenting judgment in Symes, 97-106, 201-3; and politics of naming, 88. See also Symes v. Canada, Supreme Court of Canada Liberal individualism, 58-59, 61, 64, 66-68, 74, 96. See also Sociological paradigm Litigation: and the perfect plaintiff, 183-84, 190; symbolic vs. actual gains through, 172; test-case, 50-53; as tool of progressive reform, xii, 32, 36-37, 146; 172; Litigation strategies in Symes, 38-49: deploying discourse of need, 172, 219n36; inXuence of historical childcare debates on, 16-22; and language of personal choice, 68; perceived to be faulty, xii, 52, 145, 164-66; shaped by political factors, 16 Lorde, Audre, 5 Macklin, Audrey, 115, 116, 166 Macquistan v. Minister of National Revenue, 23-24 Major, Justice Jack, 88-89, 125, 155, 180; and choice, 129-31, 132 Mandel, Michael, 163, 169, 172, 178-79, 182-84 Mann, Patricia: asymmetries in patriarchal systems of recognition, 185-86, 187-88; and gendered micro-politics, xii, 9; and sports metaphors 176-77 Marx, Karl, 194 Marxism and Communist threats, 21, 61-62, 211n30

Maternal feminism, 181. See also Women’s movement May, Laura 163 McIntyre, Sheilah, 194 Meaning, construction and maintenance of: attention to action in, 9-10; legal meanings attributed to childcare choices, 132-33; rhetoric of choice deXecting attention from struggles over, 128, 140-41, 192; role of academics in, 193-95; role of courts in, xiv, 25-26, 133, 192; role of women in, 187, 192 Michelet, 181 Micro-politics, xii, xiv, 174, 195 Miles, Angela, 3 Mills, C. Wright, 58, 68, 97, 128 Minow, Martha, 126 Moral panic, 182 Mothers: advantaged by childcare deductions, 81; massive entry into paid workforce, 41, 60, 75, 90; as natural caregivers of children, 79; selWsh, 20, 182; single, 95, 104, 138, 139; and special privileges, 150; stay-at-home, 29, 31, 146, 167, 169, 187; valuing work done by women as, 168-69, 187. See also Childcare; Choice Mother-worker, 166-67, 186-87 NAC (National Action Committe on the Status of Women), 28, 51-53, 169-70 Namack v. Commissioner, 33, 34-35, 36, 39, 45, 180 Naming, politics of, 62-63, 88, 195 National Action Committee on the Status of Women. See NAC National Council of Welfare, 32 Need: and conXicts over strategy, 175; content of, 162-63, 167-71; multiple axes of struggle over, 159-63; politicization of, 160-62, 166-67; strategies for fulWlment of, 171-72, 175, 190-91; as tool of persuasion, 160. See also Discourse, of need News media: audience interaction with, 144; bias in, 143-46; coverage of Symes in, xi, 143-49; Montreal Gazette “Question of the Week,” 143, 146-49 No. 68 v. Minister of National Revenue, 23, 38 Nonexpert responses to Symes: x-xii; childcare frame in, xiv, 143, 147, 152-53; choice and responsibility in, xiv, 143, 147, 154-56; equality frame in, xiv, 143, 147, 149-52; public/private divide in, xiv, 143, 147, 153-54; value

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of, xiv, 142-43, 156-58. See also Expert responses to Symes Nonrecognition, 186, 187 Oakes, R. v., 45-46, 119 Obligation: of government, in face of social or economic inequalities, 34, 81; legal, of both parents, 66-68, 79, 87, 135; legal, to care for children, 65-67, 75, 78, 79-80, 91, 94; moral, to care for children, 66; natural, to care for children, 79-80; voluntarily assumed, no discrimination, 87, 135. See also Responsibility Olympia Floor and Wall Tile (Quebec) Ltd. v. M.N.R., 43-44, 65, 73, 92, 100 Oppositional talk. See Discourse, oppositional talk Parents: availability of childcare support to, 29, 30, 38, 100-1; and childcare choices, 3; childcare needs of, 26, 170; as employers, 73; legal duties and obligations of, 17, 67, 79, 87, 94, 126, 134-35; low-income, 25; responsibility of, for childcare, xi, 20-21, 30-31, 156; seeking special beneWts, 82. Parenthood: litigation models applied to, 137; role of gender in patterns of, xi, 48-49, 60, 109, 116, 126. See also Fathers; Mothers Personal as political, 14-15 Popular culture, xiii, xiv, 144 Pornography, 185 Pothier, Dianne, 165, 170 Poverty, 95, 138. See also Charter Committee on Poverty Issues Power: and the construction of meaning, 9, 140-41; law’s power to persuade, 142-43; Foucault and, 8-10; to interpret, 193-95; mechanisms of, 9, 128; metaphors of, 8; rhetoric of choice obscuring workings of, 140-41 Power, John: cross-examination of Symes, 66-71, 137, 155, 180; discourse of choice and obligation, 66-68, 126-27, 135-37, 180; on equality and privilege, 68-71, 81; examination of Dr. Armstrong at trial, 61-64; legal arguments at trial, 72-74, 94; and politics of naming, 62-63, 88; and shame, 136-37 “Power and Wound”: analytic importance of, ix-xv, 8, 176; and construction of gender, 141; role of discourse at intersection of, 109, 174-75; self-interest at

intersection of, 183; Supreme Court as marked by, xiii, 109-10, 124, 175; Symes as marked by, xiii, 83, 109-10, 115-16, 143 Pregnancy as voluntary lifestyle choice, 41 Prentice, Susan, 20-21 Privilege, 96: economic, in CCPI factum, 84-85; economic, and women, 51, 69-71, 82, 169; myth of privileged businesswoman, 105-6; not invalidating equality claims, 104; parents seeking special, 82; professional women seeking special, 82, 150, 180 ProWt: deWned by courts, 39; expansion of concept of, 40; undeWned in Income Tax Act, 39, 77 Proverbs, 181 Public/private divide: childcare’s location within, xiii, xiv, 17-25, 41, 132, 191; conceptual framework of, 13-15; contradictory functioning of, 15, 187; court’s participation in drawing and maintaining, 24-25, 126, 133, 135, 192; gender in construction of, 13; implications of label, 14; inXuence of ideology in, 13; reXected in tax law’s business/person divide, 14-15, 21-25, 33, 36, 51, 166; internal and external critiques of, 14-5; invoked by court to avoid responsibility, 136; material consequences of, 13, 37; in nonexpert response, 143, 147, 153-54; politics in drawing the divide, 14-15; US equality challenges to, 33-36; women’s participation in drawing the divide, 187, 192 Race: foreign domestics and, 70-71; at the intersection of privilege and disadvantage, 140, 174; Symes as privileged white woman, 68-71, 82, 145; and universal sisterhood, 5-8, 52 Rape, 185, 186 Razack, Sherene, 7 REAL Women, 164, 168-69, 171, 187, 205n9 Recognition: asymmetries of, 185-88; claim denied by court, 192; injustices based on, 168-71; participation in renegotiations of, 194-95; psychic dimensions of struggle for, 188; and rhetoric of choice, 182, 192-94; strategies to rectify injustices of, 168, 188; woven with issues of redistribution, 185, 188-89 Redistribution: claim denied by court, 192; and government response to

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Symes, 190-91; injustices based on, 168-71; juridogenic implications of, 193; strategies to rectify injustices of, 168; and tax challenge, 188-89; woven with issues of recognition, 185, 188-89 Remedies, 117, 118, 120 Representation, 183-84 Reprivitization, 32, 52, 161-62, 167, 172, 191 Reproductive politics, 56 Responsibility: decision-making model for resolving claims about, 125-31; of families for childcare, 20-22 30-31; of mothers, for childcare, 20, 21, 77, 103, 105, 208n68. See also Discourse, of choice; Obligation Restructuring, xi, 32 Rich, Adrienne ix, xv, 7 Rights. See Discourse of rights Royal Commission on Equality in Employment, 16-17, 29 Royal Commission on the Status of Women in Canada, 26-27, 29 Royal Commission on Taxation (Carter Commission), 25-26, 27, 74 Rules, 120. See also Judicial decision making, constraints on Sameness. See Equality, sameness/ difference Schachter v. Canada, 118, 120 Schumpeter, Joseph, 10 Sears v. EEOC, 48-49 Second World War, 17-20, 180 Self: denial of selfhood, 186-88; fragmented, 9-10; liberal autonomous, 154-55, 181-82 Self-employment. See Businesspeople Self-interest, 10, 183 SelWshness: accusations of, against Symes, xiii, 95-96, 138-40, 178-80, 183-84; choice for women to be selXess or, 130; court reinforcing gendered language of, 175; critique of language of, 180-83, 192-94; judges inXuenced by assumptions about female selfishness, 103; maternal selWshness and wartime nurseries, 20. See also Discourse, of selWshness Separate spheres, 35, 181 Sexuality, 130, 140 Shame: and code of female goodness/selXessness, 139, 181; and language of choice, 140; as punitive discourse, 136-40 Simpson, Mrs. (Symes’s nanny), 164;

citizenship status of, 70-71 (see also Race) ; wages paid to 69-70; work performed by, 50, 65 Single mothers, 95, 104, 138, 139 Smart, Carol, 193 Smith, Dorothy, 98 Smith v. Commissioner, 24, 38, 180 Snow, Michael, 110, 111 Social movements and law reform, 57-59 Sociological paradigm, 59-61, 64, 66-68, 74, 96 Special Committee on Child Care, 30-32 Spelman, Elizabeth 6 Spender, Dale, 4 Sports metaphors, 175-78, 189, 191, 193-95 Spousal status, 130, 138, 209n19 Statutory interpretation, 121, 122; ascertaining legislative intent, 42-43; Xexibility in, 80-81, 110-11; informed by Charter values, 44, 76, 100, 102; resolving ambiguity in favour of taxpayer, 44, 100 Steele, David A, 32 Strategically motivated behaviour, 92, 102, 178-79 Strategy, 184: active for social recognition, 188; based on recognition and/or redistribution, 168-71; conXicts over, xiv, 159, 164-66, 169-73, 175; expert discourses in formulation of, 171; in Symes (see Litigation strategies in Symes) Supreme Court of Canada, accusations of judicial bias against, 145; childcare obligations of judges on, xi-xii constrained by, 109-44; adequacy of government justiWcation, 119-24, 192; equality law precedent, 115-18; evidentiary record, 118-21; legal Weld, 109; legal/social divide, 134-36; logical structure, 111-13; political complexity, 121-24, 192; tax law precedent, 113-15. See also Discourse of constraint gender split in Symes, xi-xii, 5-6, 90, 144 Surrey, Stanley, 11 Symes v. Canada: class-based implications of a win in Symes, 12, 48, 78-79, 184, 189; discomfort with case in newsmedia, 146; economic implications for government, 117; feminist controversy surrounding, x-xii, 51-52; important site of struggle, xiv-xv, 195; legal problem in, x-xi; logical structure of, 111-13, 119-21; politics surrounding,

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49-53; reformulating issue in, 175-76, 193; televised, x Symes v. Canada, Federal Court, Trial Division: evidence of Elizabeth Symes in, 64-71, 126-27; expert evidence of Patricia Armstrong in, 60-64; legal arguments in, 72-74; judgment in, 74-77; popular response to, 77-79 Symes v. Canada, Federal Court of Appeal: CCPI response to, 84-86; Charter justiWcations, 82; Charter review of tax legislation, 117; childcare obligations, 79-80; complete code for childcare, 80-82, 92; equality, 81-82, 180; gender neutrality of business expenses, 80, 97, 202; privileged treatment, 81, 82, 180; trivializing the Charter, 81, 123 Symes v. Canada, Supreme Court of Canada: dissenting comments on equality issues, 102-6, 121; dissenting comments on tax issues, 97-2, 121; the hearing in, x, 88-90; intervenors in, 83-87; majority comments on equality issues, 93-96, 121-22; majority comments on tax issues, 90-93, 121-22; newsmedia summary of majority and dissenting judgments, 144-45; popular response to (see Expert responses to Symes; Nonexpert responses to Symes) Symes, Elizabeth: critiqued by Mandel, 178-79; evidence at trial, 64-71, 126-27; Wgure in feminist community, 49, 51-52; legal strategy, 49-50; as privileged, 51, 68-71, 95-96, 82, 145, 180; as representative of other women, 84-85; as selWsh, 95-96, 103, 138-40, 183-84

Tax credits, 27, 29, 31 Tax deductions: critiqued as inadequate basis for childcare system, 27-30, 103, 167; regressive (inequitable) nature of, 11-13, 27, 31, 51, 101, 167; US constitutional equality challenges to, 33-36, 44 Tax expenditures, 11-12, 32 “Troubles and issues,” 58-59, 61, 68, 90, 97, 109, 128

Taxation: general inequity in, 146; and the public/private divide, 14-15, 21-25, 33, 36, 51, 166; as vehicle of social policy, 10-13

Young, Claire, 10, 12, 165 Young, Iris M., 160

Unemployment Insurance, 50, 73 United States Constitution, Fifth Amendment, 33-34, 44-45, 200 Villains, 190, 193 Vining, Joseph , 178 Virtue, 181-82: and code of female goodness, 139; constructed on foundation of selXessness, 182 War Time Day Nurseries Act (1942), 18 White Paper on Tax Reform, 26, 27, 74 Williams, Joan, 128 Williams, Patricia, xii Wilson, Bertha, 83 Winter, Steven L., 176, 190, 195 Wolstenholme, Sue, 164, 169 Women’s movement: conXicts over essentialism and identity, 3-10; differing political culture of US and Canadian movements, 36-37; race and class splits present in, 52, 169-70; second-wave childcare activism; 25-32 Women’s Legal Education and Action Fund. See LEAF Woodman, Faye, 78-79, 80, 165 Wydrzynski, Christopher, 163

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