A New Pol­icy Agenda for Women

Six Ways to Kick­start Equal­ity and Fair­ness

Herizons - - Arts & Culture Columns - By She­lagh Day

Now that Canada has a new Lib­eral gov­ern­ment in which 50 per­cent of cabi­net min­is­ters are women, fem­i­nist ex­pec­ta­tions are run­ning high. At the top of any fem­i­nist wish list will be ini­tia­tives to re­pair the dam­age done un­der the for­mer prime min­is­ter Stephen Harper, a decade that a fea­tured a se­ries of pro­gram as­saults that set back ad­vance­ments on equal­ity in Canada.

What fol­lows are some pol­icy ini­tia­tives that fem­i­nists will be look­ing to the new Lib­eral gov­ern­ment to un­der­take, in the short term, to ame­lio­rate some of the dam­age that has been done. Some of the ini­tia­tives de­scribed were part of the Lib­eral plat­form, others were not; but most could be im­ple­mented quickly and would im­prove the lives of women for years to come.

Sex dis­crim­i­na­tion in the In­dian Act

In 2009, Sharon McIvor chal­lenged some of the sex dis­crim­i­na­tion in the sta­tus reg­is­tra­tion pro­vi­sions of Canada’s In­dian Act.

As a re­sult of McIvor’s case, An Act to Pro­mote Gen­der Eq­uity in In­dian Reg­is­tra­tion was passed, and an es­ti­mated 40,000 Aboriginal women and their de­scen­dants be­came newly el­i­gi­ble to reg­is­ter as sta­tus In­di­ans. Un­for­tu­nately, the Harper ad­min­is­tra­tion used the B.C. Court of Ap­peal’s nar­row rul­ing to jus­tify leav­ing some sex dis­crim­i­na­tion in­tact. The re­sult of this nar­row ap­proach is that some 140,000 Aboriginal peo­ple are still de­nied sta­tus, solely be­cause their In­dian an­ces­tor is a woman and not a man.

Sex dis­crim­i­na­tion was en­trenched in the In­dian Act 140 years ago, when Canada first de­fined an In­dian as “a male In­dian, the child of a male In­dian, or the wife of a male In­dian.” For more than 100 years, In­dian women, on their own, could not legally trans­mit In­dian sta­tus to their chil­dren or grand­chil­dren. Women also lost their In­dian sta­tus if they mar­ried non‑In­di­ans. Men with In­dian sta­tus, how­ever, could trans­mit

sta­tus to their chil­dren and grand­chil­dren. Male In­di­ans not only did not lose their sta­tus when they mar­ried non‑In­di­ans but en­dowed In­dian sta­tus on their non‑In­dian wives. Some of these pro­vi­sions have been changed, but some sex dis­crim­i­na­tion against In­dige­nous women re­mains in the act.

The In­ter-Amer­i­can Com­mis­sion on Hu­man Rights and the UN Com­mit­tee on the Elim­i­na­tion of Dis­crim­i­na­tion against Women (CEDAW) both con­cluded last year that, be­cause of the so­cial dis­lo­ca­tion and trauma the act has caused, “In­dian Act sex dis­crim­i­na­tion is a root cause of high lev­els of violence against In­dige­nous women and the … vul­ner­a­bil­i­ties that make In­dige­nous women more sus­cep­ti­ble to violence.” The UN CEDAW rec­om­mended that Canada amend the In­dian Act to re­move the sex dis­crim­i­na­tion com­pletely. The UN Hu­man Rights Com­mit­tee re­peated this rec­om­men­da­tion last July.

Canada’s In­dige­nous women have been fight­ing this dis­crim­i­na­tion since the 1960s, and im­por­tant In­dige­nous women lead­ers such as Mary Two-Axe Ear­ley, Jean­nette Cor­biere Lavell, San­dra Lovelace and Sharon McIvor have lead the way. How­ever, dis­crim­i­na­tory pro­vi­sions re­main, and so the fed­eral gov­ern­ment must act im­me­di­ately to re­move all sex dis­crim­i­na­tion from the In­dian Act once and for all.

Court Chal­lenges Pro­gram

The Court Chal­lenges Pro­gram, es­tab­lished in 1985, was once a vi­tal ex­pres­sion of Canada’s com­mit­ment to the equal­ity rights en­shrined in the Con­sti­tu­tion. It was a key mech­a­nism for mak­ing those rights ac­ces­si­ble to women and other marginal­ized groups be­cause it pro­vided funds to sup­port test cases of na­tional im­por­tance.

Un­for­tu­nately, the pro­gram has been a mere shadow of its for­mer self since 2006, when the Harper gov­ern­ment cut funds for any new equal­ity rights cases. Now the Court Chal­lenges Pro­gram should be brought back to life quickly. If Char­ter equal­ity guar­an­tees for women and dis­ad­van­taged mi­nori­ties are to be more than win­dow dress­ing in the Trudeau era and beyond, we need that sup­port back. Be­fore 2006, the Court Chal­lenges Pro­gram also pro­vided an im­por­tant fo­rum for dis­cus­sion and ex­change on emerg­ing hu­man rights is­sues among grass­roots equal­ity rights and lan­guage rights groups. The pro­gram is crit­i­cal to ad­vanc­ing equal­ity and di­ver­sity in Canada and is also im­por­tant to fos­ter­ing a healthy democ­racy.

Na­tional In­quiry into Mur­dered and Miss ing In­dige­nous Women

A na­tional in­quiry into mur­dered and miss­ing in­dige­nous women was among the Trudeau ad­min­is­tra­tion’s first an­nounce­ments, and it is cru­cial that this in­quiry is done right. The in­quiry should in­clude a hu­man-rights frame­work, one that builds on the re­ports on the murders and dis­ap­pear­ances that were is­sued by the In­ter‑Amer­i­can Com­mis­sion on Hu­man Rights and the UN CEDAW. These re­ports, is­sued in Jan­uary and March of 2015, found that Canada failed to re­spect, pro­tect and ful­fill the rights of In­dige­nous women to life, equal­ity and se­cu­rity of the per­son.

The in­quiry should also deal fully and hon­estly with Canada’s fail­ures to safe­guard the rights of In­dige­nous women and, in par­tic­u­lar, with the fail­ures of govern­ments to meet their obli­ga­tions, un­der in­ter­na­tional hu­man rights law, to ad­dress the root causes of the violence, in­clud­ing the so­cial and eco­nomic marginal­iza­tion of in­dige­nous women and girls. In order to be suc­cess­ful, the in­quiry must also ex­am­ine thor­oughly Canada’s fail­ure to re­spect the rights of the fam­i­lies who have been af­fected by this violence. The in­quiry must deal with noth­ing less than the im­pact of set­tler Canada on In­dige­nous women. It must ex­am­ine how en­trenched sex­ism and racism cause epi­demic violence and death.

It is cru­cial that In­dige­nous women and their or­ga­ni­za­tions are con­sulted be­fore the in­quiry be­gins and all the way along. The Na­tive Women’s As­so­ci­a­tion of Canada, as well as other In­dige­nous women’s or­ga­ni­za­tions, will re­quire ad­e­quate fi­nan­cial re­sources and op­por­tu­ni­ties to play a key role in the in­quiry, which is ex­pected to be­gin within a few months.

Pay Eq­uity for Civil Ser­vants

In 2009, the Harper ad­min­is­tra­tion, as part of an om­nibus bud­get bill, brought in leg­is­la­tion that dras­ti­cally al­tered fed­eral pay-eq­uity pro­tec­tions for women pub­lic ser­vants and weak­ened the regime for mak­ing pay-eq­uity claims.

Prior to 2009, fed­eral pub­lic-sec­tor em­ploy­ees could make pay eq­uity com­plaints un­der the Cana­dian Hu­man Rights Act. This process was pro­tracted and ex­pen­sive. But, rather than im­prov­ing the ef­fec­tive­ness of pay eq­uity law, as was rec­om­mended by the fed­eral Pay Eq­uity Task Force in 2004, the Harper ad­min­is­tra­tion passed the Pub­lic Ser­vice Equitable Com­pen­sa­tion Act, which se­verely lim­ited the right to pay-eq­uity for its own fe­male em­ploy­ees. This re­gres­sive leg­is­la­tion has not yet come into full force, and some le­gal ex­perts have spec­u­lated that this is be­cause of­fi­cials have not been able to fig­ure out how to make it work­able.

Un­der the new act, pay eq­uity is to be dealt with through col­lec­tive bar­gain­ing. This makes pay eq­uity for women a bar­gain­ing chip, thereby putting women union mem­bers in com­pe­ti­tion with male mem­bers over ben­e­fits that will form part of a bar­gain­ing pack­age.

This leg­is­la­tion also forces women to file com­plaints alone and ac­tu­ally stip­u­lates that unions that sup­port fe­male mem­bers fil­ing a pay-eq­uity com­plaint can be fined $50,000. The Pub­lic Ser­vice Al­liance of Canada (PSAC) has chal­lenged the con­sti­tu­tional va­lid­ity of the act, ar­gu­ing that it vi­o­lates the con­sti­tu­tional equal­ity rights of work­ing women. Also, PSAC claims that the pro­vi­sions that pro­hibit union as­sis­tance vi­o­late the right to free­dom of as­so­ci­a­tion in Sec­tion 2 of the Char­ter.

In 2009, the Par­lia­men­tary Stand­ing Com­mit­tee

on the Sta­tus of Women rec­om­mended that Harper’s law be re­placed with proac­tive fed­eral pay-eq­uity leg­is­la­tion. The Trudeau gov­ern­ment should re­peal the act and in­tro­duce the proac­tive fed­eral pay-eq­uity leg­is­la­tion that fe­male civil ser­vants, and other fed­eral sec­tor work­ers, de­serve.

Im­prove Ac­cess to Le­gal Aid

Canada’s le­gal aid sys­tem is in cri­sis. In fact Bev­er­ley McLach­lin, the chief jus­tice of the Supreme Court, says the most press­ing chal­lenge for the ad­min­is­tra­tion of jus­tice is en­sur­ing that Cana­di­ans have ac­cess to it. The Cana­dian Bar As­so­ci­a­tion has also raised con­cerns that ac­cess to jus­tice is dwin­dling and the is­sue is a gen­dered one.

Civil law le­gal aid is mainly used by women, un­like crim­i­nal law le­gal aid, which is mainly used by men. The fed­eral gov­ern­ment os­ten­si­bly shares the cost of civil le­gal aid with the prov­inces and ter­ri­to­ries through the so­cial trans­fer, which is about 12 bil­lion dol­lars for 2015–16. How­ever, the fed­eral gov­ern­ment no longer des­ig­nates where so­cial trans­fer money is spent by prov­inces and ter­ri­to­ries. As a re­sult, civil le­gal aid reg­u­larly loses out to other pro­vin­cial pri­or­i­ties. For women, the cuts and re­stric­tions ap­plied to civil le­gal aid have been dev­as­tat­ing.

Women rely on civil le­gal aid, par­tic­u­larly for fam­ily law mat­ters. How­ever, when in­come thresh­olds for qual­i­fy­ing for le­gal aid are set at very low lev­els, or when le­gal aid cov­er­age is re­stricted to cases in­volv­ing do­mes­tic as­sault, most women can­not ac­cess le­gal aid. As a re­sult, more and more women ap­pear­ing in court are un­rep­re­sented by a lawyer in fam­ily law mat­ters. As a re­sult, they are of­ten set­tling for less than they are en­ti­tled to re­ceive.

Women also need civil le­gal aid for poverty law is­sues in­clud­ing hous­ing, wel­fare, dis­abil­ity pensions or debt. But in some prov­inces, like Bri­tish Columbia, civil le­gal aid for poverty law mat­ters has been elim­i­nated en­tirely. This means that for low-in­come women ac­cess to jus­tice is se­verely re­stricted. These re­stric­tions fur­ther deepen in­equal­i­ties for In­dige­nous women, women of colour, women with dis­abil­i­ties, im­mi­grant women and sin­gle moth­ers.

Un­for­tu­nately, a thor­ough re­view of le­gal aid is not in the man­date let­ter of Jus­tice Min­is­ter Jody Wil­son‑Ray­bould. How­ever, this is­sue must be tack­led if women are to en­joy ac­cess to jus­tice and equal pro­tec­tion of the law.

Fund­ing for Women’s Ad­vo­cacy

Stephen Harper se­verely weak­ened the man­date and fund­ing cri­te­ria for Sta­tus of Women Canada’s women’s pro­gram. As a re­sult, women’s or­ga­ni­za­tions were not able to ob­tain funds for ad­vo­cacy, for lob­by­ing of fed­eral, pro­vin­cial and mu­nic­i­pal govern­ments, or for re­search re­lated to ad­vo­cacy and lob­by­ing dur­ing Harper’s ten­ure. Also, the in­de­pen­dent pol­icy re­search fund, a small but im­por­tant fund ded­i­cated to re­search on is­sues of women’s equal­ity, was can­celled by Harper.

The ef­fect of these changes has been to muz­zle the or­ga­nized women’s move­ment and in, so do­ing, to se­verely di­min­ish women’s ca­pac­ity to par­tic­i­pate in pub­lic pol­icy de­bates on is­sues that af­fect us.

When it was es­tab­lished in 1976, the pur­pose of the women’s pro­gram was to en­sure that women could en­gage with govern­ments and par­tic­i­pate in the de­vel­op­ment of pub­lic poli­cies that would im­prove our lives and con­di­tions. The ca­pac­ity of women to par­tic­i­pate in po­lit­i­cal de­bate through com­mu­nity or­ga­ni­za­tions is crit­i­cal to a healthy democ­racy.

Un­for­tu­nately, the man­date let­ter of Sta­tus of Women Min­is­ter Pa­tri­cia Ha­jdu does not men­tion bring­ing back the pol­icy re­search fund or in­clude re­vis­ing the fund­ing cri­te­ria of the women’s pro­gram.

The Lib­eral gov­ern­ment has promised to im­prove the func­tion­ing of democ­racy in Par­lia­ment. How­ever, ex­tra‑par­lia­men­tary democ­racy is just as cru­cial, and this is why pub­lic sup­port for women’s par­tic­i­pa­tion in the demo­cratic process must be re­newed.

She­lagh Day was the first pres­i­dent of the Women’s Le­gal Ed­u­ca­tion and Ac­tion Fund and a founder of the Court Chal­lenges Pro­gram of Canada. Cur­rently, Day is a di­rec­tor of the Poverty and Hu­man Rights Cen­tre and the chair of the hu­man rights com­mit­tee of the Cana­dian Fem­i­nist Al­liance for In­ter­na­tional Ac­tion.

Jus­tice Min­is­ter Jody Wil­son-Ray­bould will fea­ture promi­nently in ini­tia­tives aimed at im­prov­ing the sta­tus of women. (Photo: CP/Sean Kil­patrick)

Fem­i­nists will be look­ing to Sta­tus of Women Min­is­ter Pa­tri­cia Ha­jdu to ramp up fund­ing for equal­ity-seek­ing women’s groups so that they can par­tic­i­pate once again in the demo­cratic process. (Photo: Justin Tang: CP Im­ages)

Janette Cor­biere Lavell, of the Na­tive Women’s As­so­ca­tion of Canada (left) and Sharon McIvor (right) took their com­plaint about dis­crim­i­na­tion in the In­dian Act to the United Na­tions. The UN said that Canada failed to re­spect, pro­tect and ful­fill the rights of In­dige­nous women to life, equal­ity and se­cu­rity of the per­son. (Photo: flickr)

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