Background

This paper is a revised version of the Background Paper “The Potential for Feminist Engagement on VAW Law Reform in Canada” prepared by Jennie Abell for the NAWL Consultation on VAW, held in Ottawa in April 2018. The initial paper (and this revised version) benefitted substantially from the significant contributions, suggestions, and careful editorial work of Suki Beavers, Project Director at NAWL.

The paper was also informed by inputs provided by the sixteen (16) participating feminist and equality-seeking organizations via an electronic survey, in writing, and orally during the consultations.

NAWL-led Consultation Participants

The NAWL led consultation on VAW included participants representing the following organizations:

  • The National Association of Women and the Law (NAWL/ANFD): Anne Levesque, Suki Beavers, Sasha Hart, Pam MacEachern, Jennie Abell, Josée Madéia, Isabel Juergensen
  • The Canadian Association of Elizabeth Fry Societies (CAEFS/L’ACSEF): Kassandra Churcher, Savannah Gentile
  • The Canadian Council of Muslim Women (CCMW/CCFM): Farhat Rehman
  • The Canadian Federation of University Women (CFUW/FCFDU): Geneviève de Breyne-Gagnon
  • The Canadian Feminist Alliance for International Action (FAFIA/AFAI): Shelagh Day
  • The Canadian Research Institute on the Advancement of Women (CRIAW/ICREF): Jackie Neapole
  • The Canadian Women’s Foundation (CWF/FCF): Anuradha Dugal
  • Law Needs Feminism Because (LNFB/DBFC): Stephanie Tadeo
  • The Native Women’s Association of Canada (NWAC/ L’AFAC): Elana Firestone, Arina Roudometkina
  • Pauktuutit Inuit Women of Canada: Tracy O’Hearn
  • Women’s Legal Education and Action Fund (LEAF/FAEJ): Lise Gotell, Suzanne Lacroix
  • Women’s Shelters Canada (WSC/HFC ): Lise Martin
  • Action Canada for Sexual Rights and Health (Action Canada SRH): Sarah Kennell
  • Action ontarianne contre la violence faite aux femmes (AOcVF): Maïra Martin
  • Amnesty International Canada (AI Canada): Jackie Hanson, Alex Neve
  • Canadian Labour Congress (CLC-CTC): Vicki Smallman, Marie Clarke Walker
  • Hon. Shelia Malcolmson
  • Senator Kim Pate
  • Rebecca Caldwell, Chief of Staff for the Hon. Maryam Monsef, Minister SWC
  • Nathalie Levman, Counsel, Criminal Law Policy, Department of Justice
  • Erin Brady, General Counsel, Human Rights Law Section, Department of Justice
  • Dr. Dubravka Šimonović, UN SR VAW
  • Sara Cavallo
  • Maria Vivar Aguirre

Introduction

Dr. Dubravka Šimonović, the United Nations Special Rapporteur on Violence Against Women, its Causes and Consequences (SR VAW), undertook an official country visit to Canada from 11 to 23 April 2018, to examine and assess how the Government of Canada is implementing its international human rights obligations relating to the elimination of violence against women.1Office of the High Commissioner for Human Rights (United Nations), “Call for submission – Visit to Canada, April 2018” (1996-2019).

The National Association of Women and the Law is an incorporated not-for-profit feminist organization that promotes the equality rights of women in Canada through legal education, research, and law reform advocacy.

On April 15, 2018, NAWL organized a meeting of the SR VAW with national feminist and equality-seeking groups, Members of Parliament and Senators to discuss potential areas of law reform to strengthen the legal framework to prevent and respond to VAW in Canada. Prior to this meeting, on April 13, 2018, NAWL convened a consultation in Ottawa of national feminist and equality-seeking women’s groups to identify the range of areas where law reform would potentially strengthen the legal framework in Canada to prevent and respond to violence against women, and to prepare for the meeting with the UN SR VAW and select MPs and Senators on VAW law reform.

Purpose and Process of Consultation

These two consultations were convened as part of NAWL’s project: Rebuilding Feminist Law Reform Capacity: Substantive Equality in the Law Making Process, and were designed to highlight the importance of, and provide stakeholders with the opportunity to discuss relevant VAW law reform issues. The focus on law reform was intended to complement other stakeholder meetings that were being organized with the SR VAW on a range of VAW issues.

The consultations provided an opportunity for us to learn more about the law reform work, priorities and capacities with respect to violence against women of various national feminist and equality-seeking groups working in the area, to help inform our individual and/or some collective VAW law reform priorities.  This consultation also helped inform an engagement with the UN Special Rapporteur on Violence Against Women, its causes and consequences, and with law makers in Canada on the opportunities to advance law reform in Canada to strengthen the prevention and response to violence against women.

Given the defunding of feminist and equality-seeking groups by the Harper government over the last nine years and the challenges that posed, this opportunity to bring together a range of feminist and equality-seeking organizations was especially significant as a preliminary step to rebuilding alliances and conversations about capacities and about law reform and social change. This kind of meeting had not been possible for many years. So, bringing together sixteen national feminist and equality-seeking groups was a wonderful opportunity.

It is also striking that this consultation group could reach consensus on a robust agenda to tackle violence against women, including capacity building and law reform recommendations. These unanimous recommendations are outlined in “Recommendations from the NAWL consultation on VAW law reform in Canada to the UN SR VAW: Considerations and context relevant to framing feminist engagement in VAW law reform in Canada” prepared by NAWL’s Project Director, Suki Beavers, and appended to this report. They are also highlighted in the relevant sections of this paper, after the discussion of specific VAW issues.2For further background on those recommendations, see generally: Suki Beavers, “Recommendations from the NAWL consultation on VAW law reform in Canada to the UN SR VAW: Considerations and context relevant to framing feminist engagement in VAW law reform in Canada” (Ottawa: NAWL, April 2018) [Suki Beavers, Recommendations from the NAWL consultation on VAW

This consultation background paper does not attempt to provide a comprehensive analysis of all VAW law reform issues or options.  Rather, it provides a snapshot intended to offer some common context for the consideration by feminist and equality-seeking groups in Canada, of the range of VAW law reform opportunities that exist.  It reflects that in relation to some forms and/or experiences of VAW, significant work has already been done, and well-developed recommendations for law reform exist.

However, in relation to other experiences or forms of VAW, while some feminist analysis is available, there are not yet many (or any) concrete law reform recommendations. In still other areas, there is both a gap in feminist analysis, and specific recommendations have yet to be developed.  Even where recommendations for law reform do exist, in some cases, the recommendations have achieved consensus, in others, they may be contested. This background paper explores some of those issues and then highlights specifically the unanimous recommendations that did emerge from the NAWL Consultation. While it is striking that some issues were not surfaced in a fulsome way in the discussions at the Consultation, some of those absent issues were identified in the preliminary survey (of equality-seeking groups) done by NAWL about organizational capacities, expertise and activities.3For example, discussions at the consultation did not highlight issues with respect to violence and sexual abuse against girls; yet, in the survey, 6 of the groups had identified their work as engaged with these issues.Additional work needs to be done to probe and elaborate more fully the specificity of violence issues for particular groups of women, for example, women living with mental and/or physical disability.

As DAWN has powerfully argued, feminist research on VAW has not been sufficiently attentive to the issues confronting women with disabilities. In their campaign, More than a Footnote, they highlight key findings of a recent review:4DAWN, More than a Footnote, research findings to be released May 2018: online: <https://www.dawncanada.net/media/uploads/news_data/news-237/call_to_action.pdf>

  1. Disability is absent in VAW information
  • VAW information available to the public rarely reflects an understanding of disability or Critical Feminist Disability (CFD) perspectives
  • VAW literature does not exclusively focus on women with disabilities. In some cases disability is only a footnote.
  • None of the literature reviewed exemplifies the use of an intersectional lens that incorporates disability as a key factor in enhancing understandings of VAW, its causes, consequences and potential remedies.
  • Disability is absent even in literature that otherwise acknowledges the importance of an intersectional approach and/or the identification of marginalized populations.
  1. Noting disability as a gap in research can be tokenistic

Disability is sometimes noted as a gap in the literature or the research study being presented. While this may seem to be a good first step toward valuing the voices of women with disabilities, it may at the same time be construed as an easy, tokenistic practice that works to further marginalize and isolate women with disabilities and other vulnerable women who may experience disability.

  1. Disability as a risk [factor] for increased violence is unexplored

Some publications identify disability as a factor that increases the likelihood of experiencing VAW but provide little context as to how and why disability experiences increase vulnerability to VAW.

Therefore, this background paper and the consultation discussions are intended to:

  • identify and discuss the range VAW issues where advancing some aspect of law reform has been prioritized by national organizations, coalitions and/or networks,
  • explore areas of divergence, emerging issues and gaps areas on VAW law reform that may benefit from further research and feminist analysis, and
  • identify national feminist and equality-seeking organizations that have the expertise to lead law reform on specific VAW issues, as well as capacity gaps that need to be filled to advance feminist reform agendas on VAW.

As the CEDAW Committee concludes in General recommendation No. 35, “…gender-based violence against women is one of the fundamental social, political and economic means by which the subordinate position of women with respect to men and their stereotyped roles are perpetuated.”5Committee on the Elimination of Discrimination against Women, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 CEDAW/C/GC.35 (26 July 2017), article 10.However, not only does violence against women perpetuate inequality, but also inequality in its various forms buttresses and supports violence against women. That inequality is clearly gendered, but also shored up by other power relations of inequality including poverty and colonization. For example, a root cause of inequality for Indigenous women is the Indian Act, the imposition of which has structured a deeply gendered matrix of relations both between Indigenous peoples and between Indigenous people and non-Indigenous Canadians. Women experience varying and intersecting forms of discrimination and women’s rights with respect to VAW are indivisible from other human rights.

As Suki Beavers details, participants highlighted the following themes and requested that the SR VAW reflect the following in her report:

  • The realities of women in Canada experiencing violence remain dire, and require immediate and systematic actions by all levels of government;
  • Women in all their diversity must explicitly and specifically be at the centre of all VAW law reform in Canada;
  • All VAW law reform in Canada must reflect intersectional feminist analysis, and be grounded in human rights and specifically women’s human rights;
  • Particularly because of the jurisdictional issues between federal/provincial and territorial governments in relation to VAW, it is all the more important that the federal government take leadership in ensuring that Canada meets its international and domestic obligations to prevent and respond to VAW in a systematic, comprehensive, coordinated and coherent way;
  • All analysis of the legislative framework required to prevent and respond to VAW must be framed to also recognize and redress women’s poverty and economic insecurity, which structures and shapes women’s experiences of violence, and especially those of groups of women that are particularly vulnerable to VAW in its many forms. Ensuring that the historic and current context is well understood is essential to informing this analysis, particularly in relation to colonialism and the ongoing impacts of colonialism, including as they impact on violence against Indigenous women; and
  • Law on the books is very important to framing responses to issues of violence against women, and, as feminist and equality-seeking groups have clearly identified, it is also extremely important to systematically monitor the impacts that law in practice is having on women, paying particular attention to the impacts of the law, and law in practice, on specific groups of women.6Suki Beavers, “Recommendations from the NAWL consultation on VAW law reform in Canada to the UN SR VAW: Considerations and context relevant to framing feminist engagement in VAW law reform in Canada” (2018) [unpublished] at 2 [Suki Beavers, Recommendations from the NAWL consultation].

Violence Against Women Consultation Law Reform Recommendations

Definition of Violence Against Women (VAW)

In their Blueprint for a National Action Plan on Violence Against Women and Girls, the Canadian Network of Women’s Shelters and Transition Houses (along with a coalition of NGOs, Trade Unions and independent experts)7The Blueprint process was coordinated by the Canadian Network of Women’s Shelters and Transition Houses, and developed by the following contributors: Action Ontarienne contre la violence faite aux femmes: Marie Poirier; Alberta Sexual Assault Association: Deb Tomlinson; Canadian Association of Sexual Assault Centres: Louisa Russel; Canadian Centre for Policy Alternatives: Kate McInturff; Canadian Council of Muslim Women: Alia Hogben; Canadian Federation of University Women: Tara Fischer; Canadian Labour Congress: Rashida Colins, Vicky Smallman; Canadian Network of Women’s Shelters and Transition Houses: Lise Martin; Canadian Women’s Foundation: Anuradha Dugal; DisAbled Women’s Network of Canada: Bonnie Brayton; Ending Violence Association of BC: Tracy Porteous; Fédération des maisons d’hébergement pour femmes: Manon Monastesse; Native Women’s Association of Canada: Teresa Edwards; Ontario Association of Interval & Transition Houses: Clare Freeman; Ontario Coalition of Rape Crisis Centres: Julie S. Lalonde; Regroupement des maison pour femmes victimes de violences conjugale: Louise Riendeau; Regroupement québecois des centres d’aide et de lutte contre les agressions à caractère sexuel: Nathalie Duhamel; United Food and Commercial Workers Canada: Emmanuelle Lopez; University of Ottawa and FAFIA: Holly Johnson; Violence Against Women Survivor: Eva Kratochivil; Women’s Legal Education and Action Fund: Kim Stanton; YWCA Canada: Ann Decter, and subsequently also endorsed by Amnesty International Canada, EVAW Canada and NAWL.defines violence against women as follows:

Violence against women [and girls] is a form of gender-based discrimination, a manifestation of historical and systemic inequality between men and women, and the most widespread human rights violation in the world. It refers to any act, intention or threat of physical, sexual or psychological violence that results in the harm or suffering of women and girls, including restrictions on their freedom, safety and full participation in society. It is inflicted by intimate partners, caregivers, family members, guardians, strangers, co-workers, employers, healthcare and other service providers [and within the criminal justice system]. It occurs in the home, at work, in institutions and in our communities. Women’s [and girls’] experiences of violence are shaped by multiple forms of discrimination and disadvantage, which intersect with race, ethnicity, religion, gender identity, sexual orientation, immigrant and refugee status, age, and disability.8Canadian Network of Women’s Shelters & Transition Houses, A Blueprint for Canada’s National Action Plan on Violence Against Women and Girls (February 2015), online: Canadian Network of Women’s Shelters & Transition Houses <https://endvaw.ca/wp-content/uploads/2015/10/Blueprint-for-Canadas-NAP-on-VAW.pdf> at 3 [Blueprint]

This definition could usefully be expanded to reference violence against girls as well as women, and to identify the criminal justice system as another site of the infliction of violence. Also, an important additional underpinning inequality is poverty and economic insecurity, which structures and shapes the experience of violence against women and effectively often amounts to violence.

Background: A National Action Plan [NAP] for Canada on VAW

In 2011, the United Nations clarified the call on all countries to have a National Action Plan [NAP] on VAW by 2015 to shape a coherent, coordinated and gender-based response to VAW9United Nations, Handbook for National Action Plans on VAW (2011: New York, UN Women). While there have been some important developments provincially and federally, including the development of various provincial action plans10For an analysis of the provincial and territorial action plans on VAW, see Canadian Network of Women’s Shelters & Transition Houses, appendix 1 detailing those action plans. At the point of that writing, PEI, Saskatchewan, Yukon and Nunavut did not have action plans on VAW. Since then, there have been some new initiatives announced, including the It’s Never Okay: Ontario’s Gender-based Violence Strategy in 2018 in Ontario. Alberta, Saskatchewan, Manitoba, Nova Scotia, PEI, Newfoundland and Labrador and all three territories have now enacted specific legislation to address family violence: FAFIA, “Overview of the Legislative and Policy Response to Violence against Women in Canada” (FAFIA: April 2018) at note 42., they fall short of the urgently needed coordinated national plan.

In Canada, such a NAP would entail federal leadership but engage provincial, territorial and municipal levels of government to develop a consolidated and coherent response to violence against women, including a rationalization of law reform in related areas. As the Canadian Network of Women’s Shelters and Transitions Houses and a coalition of NGOs, trade unions and independent experts have argued, this response must be grounded in a feminist intersectional analysis of violence and the process of constructing the NAP must include the involvement of the violence against women sector and be attentive to diverse experiences and needs of women survivors, particularly those of the most marginalized groups of women, those most at risk with respect to violence on the basis of structural factors and of multiple and intersectional identities (including for example, Indigenous women, women with disabilities, LGBTQI2S+11While usage varies in terms of referencing diverse sexual orientations and gender identities in the Canadian context and internationally, we have chosen to refer to LGBTQI2S+ (lesbian, gay, bisexual, transgender, queer, intersex, and 2-spirited) as being inclusive of a range of sexual identities and the issues raised by participants at the Consultation on VAW (and specifically issues confronting Indigenous people in Canada)., poor women, immigrant and refugee women, racialized women, young women, older women, sex workers, women in prison, women with language barriers, etc., and women who are of more than one of these identities)

Further, as they note, federal initiatives to address violence have historically been overly reliant on criminal law. A coherent coordinated legal framework is crucial to a reliable and effective response and importantly would provide “consistency across and within jurisdictions in policies and legislation that address VAW.”12Blueprint, supra note 9 at 8. A gendered feminist intersectional lens also illuminates the need for supporting other areas of service provision as well, and a NAP provides the framework for collaboration and response. Finally, any NAP must be adequately resourced to provide for the development of appropriate responses, including the need for research to identify the scope of issues and to measure progress.

  1. is capable of understanding the sexual nature of the act and the risks associated with that act, and
  2. is capable of realizing that he or she may choose to decline participation; and
  3. is capable of communicating her voluntary agreement.
  • Given that independent legal advice has been shown to improve justice responses to sexual assault complainants, and given that federal-provincial cost-shared pilot projects providing independent legal advice for survivors are now in place some provinces, but not in others, the federal government must ensure at least four hours of legal aid is provided to all sexual assault survivors in all provinces and territories.
  • In collaboration with the provinces and territories, the federal government must work to ensure that all police officers receive specialized sexual assault training that includes awareness about rape myths and accurate information about the legal standard for consent. Federal funding must be made available for training of police.
  • In collaboration with the provinces and territories, the federal government must work towards the creation of civilian oversight of police, as an important step in monitoring police response to sexual assault and sexual assault survivors.

In collaboration with the provinces and territories, the federal government must work to ensure that all Crown Prosecutors who prosecute sexual assault receive specialized training. Each province and territory must include a sexual assault policy section in the Crown Prosecutors manual. This section should include substantive directions to Crown Prosecutors responding to the specificities of addressing the treatment of sexual assault complainants and compelling the protection of complainants’ equality and privacy rights.

  • Investigate allegations of forced or coerced sterilizations in Canada, with particular attention to cases involving Indigenous women and girls, ensuring justice and reparations to survivors and their families;
  • Ensure non-repetition by changing government policies and practices to explicitly prohibit sterilization without free, full, and informed consent, and through the application of applicable criminal laws;
  • Enforce healthcare professional accountability through medical college regulations; and
  • Implement Truth and Reconciliation Commission Calls to Action 23 and 24 on increasing the number of Indigenous healthcare professionals and providing cultural competency training to all healthcare professionals.