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.
The NAWL led consultation on VAW included participants representing the following organizations:
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.
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>
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.
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:
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:
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.
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.
This law reform would benefit from a clear analysis of existing legislation and regulation, identification of principles which should underlie good legislation, and promising practices.