Aboriginal women

International Day for the Elimination of Violence Against Women 2015

By Jessica Mank

The United Nations has designated November 25 as the International Day for the Elimination of Violence Against Women. The day recognizes women around the world who are subject to rape, domestic abuse, and other forms of violence. [1] This day also marks the start of the White Ribbon Campaign (men against violence against women) in Canada. In addition to raising awareness, one of the goals of this day is to highlight that violence against women and girls is not inevitable; prevention is possible and essential.

On the international stage, Canada has supported resolutions calling for the elimination of violence and women. For instance, Canada’s work at the United Nations has supported the development of the Declaration on the Elimination of Violence against Women and the mandate for a UN Special Rapporteur on Violence against Women, its Causes and Consequences. At home, the Government of Canada advances a plan of action with undertakings in prevention, protection and prosecution. To read more about the Government of Canada’s general strategy to eliminate violence against women, click here.

With the recent culmination of this year’s federal election, Prime Minister Justin Trudeau is now faced with the challenge of implementing the reforms he pledged during his campaign, including those for the prevention of domestic violence and sexual assault. Prime Minister Trudeau has announced the launch of a national public inquiry into missing and murdered Indigenous women in Canada by summer 2016. Other policies promised in the Prime Minister’s electoral platform include developing a federal gender violence action plan, increasing investments in growing and maintaining Canada’s network of shelters and transition houses, and establishing a tougher stance on intimate partner violence. [2] The new government has also spoken out against Bill C-36. [3]

Missing and Murdered Indigenous Women

Nearly 1,200 Indigenous women were murdered or went missing between 1980 and 2012, according to an RCMP report issued in May 2014. A 2015 update has since been released including statistics and analysis on new cases of missing and murdered Indigenous women that have occurred since then. The update also addresses the initiatives and preventative developments the RCMP has taken in meeting the “Next Steps” outlined in the 2014 Overview.

The previous government did not undertake a federal inquiry into missing and murdered Indigenous women. Part of the action taken by the previous government was extending the Canadian Human Rights Act to cover Indigenous peoples on reserves, launching an RCMP database of missing persons and unidentified remains intended to help police services across the country investigate unsolved disappearances and suspected homicides, and toughening laws related to violent crime. [6]

Craig Benjamin, campaigner for the human rights of Indigenous peoples at Amnesty International Canada, says its time to move past “simplistic explanations,” such as attributing the phenomenon to crime. “We have to get to the point of understanding the violence is far more pervasive, that it has multiple causes and that it does in fact have deep roots in our society and the relationships between aboriginal and non-aboriginal people.” [7]

At this point, Indigenous and Northern Affairs Minister Carolyn Bennett has announced that Prime Minister Trudeau expects to launch pre-inquiry consultations with families, civil society groups and other stakeholders in the next few weeks regarding the national inquiry on missing and murdered Indigenous women in Canada. The government plans to make an announcement on its findings in early December 2015. [8]

Domestic Abuse

In January 2007, the United Nations General Assembly adopted a resolution that called for National Action Plans to end violence against women. The resolution provides that all states should adopt National Action Plans in order to address gaps in current policies, programs and services, to involve various women’s organizations in identifying the necessary solutions, and to ensure accountability in delivery. [9]

Trudeau has pledged to develop and implement a comprehensive federal gender violence strategy and action plan, though it is not yet clear what this plan will look like. His government has also pledged to increase investments in growing and maintaining Canada’s network of shelters and transition houses as part of a broader investment in social infrastructure, and to amend the Criminal Code to reverse onus on bail for those with previous convictions of intimate partner violence. [10]

The UN resolution recognizes that violence against women is rooted in historically unequal power relations between men and women and urges states to take action to eliminate all forms of violence against women by means of a more “systemic, comprehensive, multisectoral and sustained approach, adequately supported and facilitated by strong institutional mechanisms and financing.” [11]

In its 2013 report, the Canadian Network of Women’s Shelters and Transition Houses made the case for a Canadian National Action Plan in Violence Against Women, noting:

  • The federal government does not currently identify women as an at-risk population in terms of partner violence or sexual assault.
  • Focus at the federal level is on gender-neutral victims of crime and family violence.
  • Federal initiatives offering support and services to victims of violence against women maintain gender neutrality
  • There are many needs that remain unmet by the traditional justice system, social services, and health care system. [12]

The report states that some of the most pressing issues for victims of domestic violence include the financial impact of crime and violence:

  • Many women living with abuse cannot afford to escape the violence and, for economic reasons, may be forced to remain in homes with violent partners.
  • Women’s shelters often suffer from inadequate funding to meet the demand in communities for women and their children.
  • There a is a lack of safe, affordable community housing for those fleeing violence. [13]
  • Victims who require mental health support to deal with the trauma they have suffered must often seek help at their own expense.

Sex Work and Bill C-36

In December 2013, the Supreme Court of Canada struck down Canada’s prostitution laws. The court held that the provisions violated the Charter by threatening sex workers’ rights to life, liberty and security of the person. Significantly, critics of Bill C-36 argue that the new bill largely recreates the problems in Bedford and actually limits the safe ways for sex-trade work. Trudeau and the Liberal Party voted against Bill C-36, and have spoken to repealing it while in office. [15]

In Bedford the SCC acknowledged that prostitutes in Canada face a high risk of physical violence, and held that ss. 210, 212(1)(j) and 213(1)(c) not only deprived applicants of their liberty in light of the availability of imprisonment as a sanction, but also made any security enhancing actions or methods illegal.

Evidence demonstrated that working in-call is the safest way to sell sex, yet those who attempted to increase their level of safety by working in-call faced criminal sanction. Out-call work may be made less dangerous if a prostitute is allowed to hire a bodyguard, but these business relationships were illegal. The law prohibited street prostitutes, largely the most vulnerable prostitutes, from screening clients at an early stage in the transaction, putting them at an increased risk of violence. [16]

Bill C-36 criminalizes the sale of sexual services in public spaces where persons under the age of 18 could be present. The act also makes it illegal for a person to get a “material benefit” from the sale of sexual services by anyone other than themselves. The enacting federal government maintained that the intention of the bill was to target johns, pimps and traffickers, but critics warn that the bill criminalizes prostitution and its effect will be placing sex workers in jail. [17]

Prior to being elected, Trudeau campaigned on repealing Bill C-36. It is unclear what his government will propose in its place.

Will Trudeau make an impact on the elimination of violence against women?  

Questions remain as to whether Trudeau’s government will be able to deliver on campaign promises to bring reform to the issue of violence against women, and also as to what these reforms will look like. The selection of a gender-equal cabinet signifies a commitment to change and diversity, and holding a majority government will certainly assist the Liberals in implementing reform. However, it also means that expectations for reform remain high. [18]

So far it is clear that the new government is making the national inquiry into missing and murdered Indigenous women one of its first priorities. How quickly this inquiry will materialize and whether it will lead to more purposive action on the part of the federal government remains uncertain.

No timelines have yet been given to a National Action Plan to end violence against women, or to addressing Bill C-36. It regard to the former, it is unclear whether such a National Action Plan will respond to the areas identified in the Canadian Network of Women’s Shelters and Transition Houses’ 2013 report on violence against women.

As to Bill C-36, Pivot, a legal group that helped fight for sex workers’ rights at the SCC has recently stated they will launch a Constitutional challenge if the Liberal government does not act immediately to repeal the bill. [19] Justice Minister Jody Wilson-Raybould recently commented that the government would look at possible changes to Bill C-36. She stated, “we’ve had some preliminary discussions around the Bedford decision and how we approach it more broadly, and . . . that is going to involve having substantive discussions with people who are fundamentally impacted by this. And that’s something that we’re definitely going to look into and have further to say on that.”[20]

 

 

By |November 25th, 2015|Blog|

Thirty Years Since the Charter’s Equality Provisions and LEAF’s Founding. Where is Equality Now?

By Elizabeth Shilton

Women’s rights activists and advocates worked hard during the pre-Charter constitutional negotiations to gain broad equality rights provisions in the 1982 Charter of Rights and Freedoms. When those provisions came into effect on April 17, 1985, the Women’s Legal Education and Action Fund opened its doors to ensure that they would be given real meaning by the courts.

In its initial cases, LEAF addressed such relics as laws that prevented women from retaining their birth names after marriage. LEAF then quickly moved to tackle the pervasive problem of sexual violence. In the 1988 Canadian Newspapers Co. v. Canada (Attorney General) case, LEAF intervened to ensure that sexual assault victims would have a right to prevent publication of their names. Since then, LEAF has appeared before the courts many times to advocate for women who have been sexually assaulted. LEAF helped to convince the Supreme Court that silence does not mean consent (M(ML), 1992) that rape myths have no place in Canadian courts and that consent must be affirmatively communicated (Ewanchuk, 1999), that survivors of residential school sexual assault should be compensated (Blackwater v. Plint, 2005), that women sexual assault complainants with intellectual disabilities deserve equal access to justice (R. v. D.A.I., 2010), that unconscious women cannot consent (R. v J.A., 2011) and that women should not be deterred from reporting their assaults because they wear a niqab (R. v. N.S., 2012).

LEAF also went to court  to ensure that women’s past sexual history (Seaboyer, 1991) and medical records (O’Connor, 1995) were not fair game in sexual assault trials for defence counsel seeking evidence of sexual history or mental health problems to impugn their credibility. I was co-counsel in both these cases. In O’Connor, LEAF intervened in coalition with the Aboriginal Women’s Council, the Disabled Women’s Network of Canada (DAWN) and the Canadian Association of Sexual Assault Centres. We argued that the counselling records of women alleging sexual assault should not be accessed by lawyers defending Bishop O’Connor, a priest and former residential school principal subsequently convicted of rape. In our view, the records sought had no relevance either to the facts of the case, or to the credibility of the witnesses. Although we were unsuccessful in court in both these cases, our courtroom advocacy formed the basis for our law reform work which resulted in legislative protections in the Criminal Code to prevent courtroom violations of women’s privacy from compounding the violations of their bodies from sexual assault.

But law reform on issues involving sexual violence is still very incomplete, as we have recently been reminded by the horrendous death of Edmonton woman Cindy Gladue and by the treatment her death received at the hands of the law. The Crown’s extraordinary and unprecedented introduction of the most intimate of a woman’s body parts into evidence in that trial, along with arguments from defence counsel that Ms. Gladue died because she consented to the “rough sex” that resulted in a mortal wound to her vagina, show us how far the criminal justice system still has to go before women are respected and protected by its processes.  The jury verdict in that case, acquitting the man who inflicted that wound, reinforces a harsh reality of which we are already well aware in a country where over 1100 Indigenous women and girls have gone missing or been murdered since the Charter became part of our constitution – the reality that women cannot count on the law to protect them from sexual violence either inside and outside the courtroom.

I became involved with LEAF in its heady early days when the Charter was new and the winds of change seemed to carry the promise that women’s equality was just over the horizon. Some gains have indeed been made over the three decades since the Charter’s equality rights provisions came into effect, but not for all women in Canada and certainly not for Cindy Gladue. There are very few national feminist organizations in Canada, and fewer still that fight in the courts to ensure women’s equality rights are considered when legal decisions are made. I believe that LEAF’s work is more necessary than ever. Until women like Cindy Gladue and their families are treated by the law with respect, compassion and equality, we must continue that work.

Elizabeth Shilton is a Senior Fellow with the Centre for Law in the Contemporary Workplace at Queen’s University and an Adjunct Professor at Queen’s Law.  Prior to returning to school to complete her doctorate in law, she was the long-time managing partner of the Toronto law firm of Cavalluzzo Hayes Shilton McIntrye & Cornish, where she practiced labour/employment and equality law. While in practice, she represented LEAF and other equality-seeking organizations before the Supreme Court of Canada in a number of cases.  In the late 1980s and early 1990s she served as a board member of both LEAF and the LEAF Foundation, and twice co-chaired LEAF’s National Legal Committee. In 2010, she was among the “lawyers who have made a difference” honoured by LEAF as part of its 25th Anniversary celebrations.

This piece was originally published at leaf.ca, and appears here with permission.

 

By |May 17th, 2015|Blog|

Canada in Violation of International Human Rights Law – Pressure mounts to hold national inquiry

By Lara Koerner Yeo

On Friday, 6 March 2015, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) released an unprecedented report. The report finds Canada in violation of articles 2, 3, 5, 14, and 15 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[1] The CEDAW Committee states that Canada has failed to take sufficient action to respect and protect the human rights of Aboriginal women, including their rights to life and personal security. Thus, by omission, Canada is in contravention of its obligations under the Convention to eliminate all forms of discrimination against women, including the obligation to equally protect Aboriginal women under the law and provide effective remedies when they are subject to violence.

This is the first time an international human rights expert body has found Canada to be in contravention of international human rights norms. The report has been recognized as “extremely important” for Canada, and an “embarrassment for Prime Minister Stephen Harper’s Conservative government.”

The report is the result of a summer 2013 inquiry undertaken by CEDAW members Niklas Bruun and Barbara Bailey into the situation of violence against Aboriginal women and girls in Canada. Canada gave its permission for CEDAW Committee members to investigate in spring 2013, two years after the Canadian Feminist Alliance for International Action (FAFIA) and the Native Women’s Association of Canada (NWAC) requested a CEDAW Committee inquiry into missing and murdered Aboriginal women under article 8 of the Optional Protocol to CEDAW.

For those who devote their professional lives to the advancement and domestic implementation of international human rights law, this kind of report is game changing. As Shelagh Day, a long-standing, outspoken advocate on the issue at the UN and Inter-American Commission on Human Rights writes, “for those of us who have been working on equality rights law for a long time, this decision includes analysis and findings that we have been seeking since section 15 of the Charter was introduced.” Day highlights three key ideas that the report brings to the fore: the interconnectedness and indivisibility of economic, social, cultural, political and civil rights for the practical realization of women’s human rights; systemic discrimination, including the finding that State actors and institutional mechanisms can be engaged in, and thus perpetuating, such discrimination; and that the failure of a State to act can be the violation. Such explicit recognition of these things, and their role in connection to States’ violations of women’s rights, is norm-advancing.

National Aboriginal Organizations, including NWAC and the Assembly of First Nations (AFN), have been quick to respond to the report release. Dawn Harvard of NWAC, in a joint NWAC-FAFIA press release, questions, “What more does Canada need?” The AFN affirms that the issue of violence is “a Canadian issue,” and the particular findings of the CEDAW report “cannot be ignored.” The Union of BC Indian Chiefs writes that Canada is in “DENIAL” about the efficacy and comprehensive nature of its current response to the situation of violence against Aboriginal women and girls; and both Amnesty International and Human Rights Watch responded to the release with statements critiquing Canada’s response to the report.

The responses by these Aboriginal and human rights organizations both highlight the great need for improved state response, and reflect the general sentiment of civil society in Canada today. Myriad public and private actors, policy and civil society stakeholders, call for a national inquiry into violence against Aboriginal women and girls. In a recent Angus Reid poll, almost three-quarters of Canadians supported a national inquiry.

While the CEDAW Committee report recommends that Canada launch a national inquiry, Canada rejected the three recommendations regarding a national inquiry and action plan.[2] Canada disagrees that it has violated the Convention,[3] and did not make any comment on how it would proactively change its current policy and programmatic response on the issue to better align with its human rights obligations.

The CEDAW Committee report recommendations will be the newest set of recommendations to be added to the compendium of report recommendations on the subject amassed by the Legal Strategies Coalition. The Coalition’s study, recently released in late February, found that only a few of the over 700 recommendations on improving State response to violence against Aboriginal women in Canada have been implemented by Canadian governments. The Coalition reviewed fifty eight reports, studies and inquiries and found that there is a consensus among reports on the systemic nature of the root causes of violence and a need for a national inquiry—something the CEDAW Committee report unequivocally reaffirms.

The release of the Legal Strategies Coalition report, on 26 February 2015, was followed by the national roundtable on missing and murdered Aboriginal women on, 27 February 2015. The roundtable was framed as a “beginning” – a way to start dialogue between provincial, territorial, and federal ministers, and with representatives from affected Aboriginal families. The outcome led to no substantive change on the federal government’s position vis-à-vis an inquiry—a position that unsurprisingly mirrors Canada’s response to the CEDAW Committee report.

The federal government is set to roll out its Action Plan to Address Family Violence and Violent Crimes Against Aboriginal Women and Girls on 1 Apr 2015. Of concern, however, is how federal leadership continues to frame the issue and response initiatives. Amnesty International Canada has characterized Federal Status of Women Minister Kellie Leitch’s framing of aspects of the issue, such as the perpetrators of violence, as “incorrect and dangerous.” The Action Plan—something that bears no evidence of being comprehensive and national in scope, but instead a plan that maintains a “piecemeal and fragmentary” status quo—does not heed the recent Inter-American Commission on Human Rights, Legal Strategies Coalition and CEDAW Committee report recommendations for a comprehensive national inquiry and/or a national action plan.

Advocates maintain that the February 2015 roundtable, Action Plan, and decision to hold another roundtable before the end of 2016, do not lessen the need for an inquiry. There is no question that Canadian governments are taking action, Ontario serving as an example; however, in light of the current findings by the CEDAW Committee, there is legitimate cause to question the adequacy of regional responses, rather than a comprehensive, national inquiry and/or action plan. The federal government remains opposed to such national action—a stance in perpetual opposition to the provinces, territories, key Aboriginal and non-Aboriginal civil society stakeholders, and international and regional human rights expert bodies.

[1] Committee on the Elimination of Discrimination against Women, Report of the inquiry concerning anada of the Committee of the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination, CEDAW/C/OP.8/CAN/1, 6 March 2015, at para 211, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_1_7643_E.pdf>.

[2] Committee on the Elimination of Discrimination against Women, Observations of the Government of Canada on the report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/CAN/2, 6 March 2015, at para 122, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_2_7644_E.pdf>.

[3] Ibid at para 6.

Lara Koerner Yeo is a first year student at the University of Toronto, Faculty of Law. She was a research assistant in the women’s rights division of Human Rights Watch and worked on the report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada.” She currently works with the Canadian Feminist Alliance for International Action.

By |March 31st, 2015|Blog|