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)²The 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.³Canadian 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 VAW⁴United 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 plans⁵For 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+⁶While 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.”⁷Blueprint, 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.

Bill C-5 uses the language of “matters related to sexual assault law and social context” in two places (paragraph 3(b) and 60(2)(b)). The development and delivery of judicial social context education has a twenty-five-year history in Canada. “Social context” is a compendious phrase intended to capture the background factors that may inform judicial decision-making in all contexts in which judicial education occurs. The language in the amendment is not clear.

NAWL recommends the legislation be amended to reflect current best practices in judicial education. Comprehensive and in-depth judicial education on a particular topic requires attention to three elements – the substantive law, the social context of the law, and the relevant judicial skills. Precise language will make both the applicant’s undertaking and the CJC’s power clear. In addition, clearer language here will make section 60(3)(b) superfluous.

NAWL recommends the following amendments to C-5:

3(b) undertakes to participate in continuing education on matters related to:

• the law of sexual assault;
• the social context of sexual assault and the criminal justice response to it; and
• the judicial skills required to impartially preside over sexual assault trials.

including by attending seminars established under paragraph 60(2)(b).

60 (1) The objects of the Council are to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts.

Powers of the Council

(2) In furtherance of its objects, the Council may …

(b) establish seminars for the continuing education of judges, including seminars on matters related to the law of sexual assault, the social context of women’s experiences of sexual assault and the criminal justice response to it, and the judicial skills required to impartially preside over sexual assault trials.

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.