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Alternate Formats
In this issue:
World March of Woman plans worldwide
action in 2005
Addressing trafficking in women and
children in Canada
The struggle for equality in the job
market goes on: CHRC declines to enforce Supreme Court order against CN
The American Convention on Human Rights
is part of the "regional solution"
Bill-C-22: Update
Commentary on Canada (Attorney General)
v. Lesiuk
UN special rapporteur visits Canada,
15-26 September 2003
How fair is the MBM to women?
JURISFEMME
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WORLD MARCH OF WOMEN PLANS WORLDWIDE ACTION IN 2005
By Bonnie Diamond
The World March of Women (WMW) is a global network for feminist action that
had its genesis in the Quebec women's movement. WMW focuses on struggles
against poverty and violence against women. In 2000, the WMW carried out
a series of national actions including popular education, national marches
and international mobilization. The climax occurred on October 17, 2000,
when women from around the world marched in New York City and delivered
five million signatures in support of the 17 world demands of the March
to UN headquarters. Representatives of the WMW also met with representatives
of the UN Secretary General and the World Bank and the International Monetary
Fund to present "2000 Good Reasons to Change Course," which addresses
the policies of these institutions.
Canadian women also joined the World March 2000. The Canadian Women's
March Committee, of which NAWL is a member, joined the world action in
2000 and made its own demands of the Canadian federal government in a
document entitled It's Time for Change. Over 30,000 women from
across Canada marched onto Parliament Hill in Ottawa in October 2000 in
solidarity with women around the globe and in support of the Canadian
Women's March demands to end violence and eradicate poverty. WMW recognizes the urgent need to propose economic, political, social and cultural
alternatives to make possible a world that is founded on gender equality,
equality of all human beings and peoples, and the respect of our planet's
environment. WMW also recognizes the necessity to debate our vision among
ourselves as women and with allied organizations, locally, nationally,
regionally and internationally. Consequently, WMW adopted a new international
action that will be carried out in 2005.
The action will include three components: drawing up a Women's Global Charter
for Humanity through a process of popular education based on the 17 World
Demands of the March; organizing relay marches starting on March 8, 2005,
within participating countries, from one country to another, and one world
region to another, to publicize the Charter and gather support for the
alternatives being proposed by feminists; and producing a solidarity quilt
made of pieces of cloth on which each participant will be invited to illustrate
her dream for humanity. The pieces of cloth will be joined together to
form a quilt and used during the simultaneous global actions that will
take place at the end of 2005.
Women will use the Charter to address their domestic governments and
also international institutions. For more information consult the WMW
website at http://www.ffq.qc.ca/marche2000/en/index.html.
At its meeting in Ottawa in September 2003, the Canadian March Committee
unanimously confirmed participation in the World March of Women's Action
of 2005 and in events leading up to 2005. Additionally, the Canadian March
Committee reaffirmed its determination to work together as Canadian national
women's organizations and with women at provincial/territorial and local
levels to secure the Canadian Women's March demands of the March 2000.
It is still "Time for Change."
Bonnie Diamond is the executive director of NAWL.
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ADDRESSING TRAFFICKING IN WOMEN AND CHILDREN IN CANADA
By Denise Sayer
Trafficking in women and girls is a significant global problem to which
Canada is unfortunately not immune. It is an illegal yet highly profitable
industry, which recruits, transports and sells human beings for the purpose
of exploiting their labour and/or their sexuality. The victims of trafficking
are overwhelmingly women and children. In its Brief on the Proposed
Immigrant and Refugee Protection Act (Bill C-11) (online at http://www.nawl.ca/brief-immig.htm),
NAWL expressed concern that government initiatives to combat smuggling
and trafficking activities as transnational crime might add to the abuse
experienced by the victims of these activities. NAWL recommended that
victims be provided with interim immigration relief in the form of minister's
permits and that they be allowed to apply for permanent residence from
within Canada on "humanitarian and compassionate" grounds.
Unfortunately, these recommendations were not followed and Canada continues
to treat trafficked persons as criminals or "illegal immigrants". However,
efforts are being made in Canada to address this issue. The Canadian Council
for Refugees has undertaken a project, which seeks to assist immigrant
and refugee-serving organizations to respond to the needs of trafficked
persons and to work towards the eradication of forced labour in Canada
(see http://www.web.ca/~ccr/trafficking).
The objectives of the project are ambitious, bringing together interested
parties who will work towards providing concrete recommendations to help
solve this complex and multi-faceted problem. As part of the Council's
project, the Coalition in Ottawa for Refugees hosted a consultation in
late September that sought to accomplish two key goals: to create an environment
which facilitates the exchange of experience and knowledge and to develop
resources to address the problem both locally and nationally. The conference
explored the complex issues surrounding trafficking in four modules, looking
at what drives the individual trafficked person, the supply and demand
factors which facilitate trafficking, Canada's legal framework and potential
improvements, and enforcement.
The first issue raised at the consultation was the definition of trafficking,
which is distinguished from smuggling in migrants. While smuggling in
migrants is characterized as a crime against the state as it violates
immigration laws, trafficking is a crime against the person-a violation
of human rights. The United Nations Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children Supplementing
the United Nations Convention Against Transnational Organized Crime ("Palermo
Protocol") contains the most widely used definition, defining trafficking
in persons as:
the recruitment, transportation, transfer, harbouring or receipt
of persons, by means of the threat or use of force or other forms
of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving
of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation.
Given the complexity of the issue and the diversity of voices expressed
at the conference, the participants had many issues and recommendations
for moving forward. The following is a summary of some of the key issues
and recommendations.
- Canada re-victimizes trafficked persons by failing to provide victim
protection and criminalizing their actions. Canada has failed to domestically
adopt the victim protection articles of the Palermo Protocol (article
6) and, while the Immigration and Refugee Protection Act (R.S.C.
2001, c. C-27, ss. 117-121) criminalizes the actions of traffickers,
it fails to provide protections for victims. Thus, in amending our legislation
we must focus on providing victim protection.
- Strict immigration laws fuel trafficking by taking away viable legal
alternatives to individuals who face persecution or dire economic conditions
in their countries of origin. An effective response to trafficking must
include considerations to ensure the requirements for legal immigration
and claiming refugee status are not unduly strict.
- The age for child protection is not harmonized domestically or with
Canada's international obligations. In addition, children are particularly
vulnerable to the lack of safe return mechanisms, there is no guarantee
that when they are returned it is to a safe and secure environment.
Therefore, special consideration must be given for trafficked children
and their increased risk of being re-trafficked.
- There is currently a lack of funding in Ontario for support services.
Lack of funding hurts our ability to provide an effective response,
especially on the front lines. Trafficking is estimated to be a multi-billion
dollar business run primarily by organized crime and groups combating
it require funding to properly assist victims.
- "No action on its own will resolve the trafficking situation. We
need to work as a team at all levels: prevention, protection, monitoring
and policing" (Patti Haughian & Robert Libbey, "Trafficking in Women
and Girls: An Initiative of the Canadian Council For Refugees" (Ottawa
Meeting Report, September 2003), unpublished, at page
- It is important to see the "big picture" of trafficking and create
a national network which encompasses various government, NGO and community
groups to develop consistent policies. 6. Canadians profit from the
labour of trafficked persons. In addition to the trafficked persons
who enter the country illegally, there is a concern about government
sanctioned, institutionalized exploitation of labour such as domestic
workers, migrant workers and mail order brides. Combating demand is
a critical part of the education and legal response.
Trafficking is a complex and daunting issue. The initiative taken by
the Canadian Council for Refugees is a solid start to identifying the
issues, the key players and potential solutions. It provides hope that
this issue will gain prominence on the national legislative and funding
agendas. However, it is important to focus on what Canada can do now and
how we can make the necessary domestic changes as soon as possible. The
identification of tangible domestic solutions is the most important step
to assist in protecting victims of trafficking. This conference was a
first step in that direction. The next step is a national meeting that
will take place in Winnipeg in late November to follow up on the local
meetings held across Canada.
Denise Sayer is a law student at Queen's University. Currently volunteering
with NAWL, she is also actively involved in the Women & the Law club at
Queen's.
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The struggle for equality in the job market goes
on: CHRC declines to enforce Supreme Court order against CN
By Rachel Cox
In 1984, in response to a complaint filed by Action travail des femmes
(ATF), the Canadian Human Rights Tribunal (CHRT) ordered Canadian National
Railways (CN) to put an end to its discriminatory practices against women
in blue-collar positions. In 1987, in a stunning victory for women's rights,
the Supreme Court upheld this order.
Under its terms, CN must hire one woman for every four non-traditional positions until such time as "the desired objective
of having 13% non-traditional positions filled by women is achieved." The order mandates the Canadian Human Rights Commission (CHRC)
to receive quarterly progress reports from CN during this period.
But on April 2, the CHRC notified ATF that given the "significant passage
of time" and, in particular, a conflict of interest with respect to its
obligation to audit CN under the terms of the Employment Equity Act
(EEA), it is closing the file for once and for all.
Yet the 13% objective is far from having been from reached. Despite the 1988 order, women's under representation in blue-collar positions at CN is as glaring as ever: their share of these positions has risen only one-tenth of a percentage point, from 2.4% in 1987 to 2.5% in 2000. At
that rate, the 13% target will not be attained for another 1365 years!
Not only does the CHRC decision contravene the Supreme Court order, the
allegation of a conflict of interest contradicts the Commission's own
recommendations in the context of the legislative review of the EEA. As
it states on its website, "There would be little difficulty in integrating
any Tribunal decision requiring remedial action into the context of a
compliance audit." Easy in theory, but impossible at CN?
Undeniably, CN's grudging cooperation has often made the work of following up on the court order arduous. For example, in 1997, women candidates referred by ATF reported that CN uses a selection test closely resembling the Bennett Mechanical Comprehension Test. Given the prejudicial effect of the Bennett Test on women, and since it has not been validated, the order forbids the use of this test as well as any other mechanical aptitude test having similar effects. But in response to formal and repeated inquiries from the CHRC about these tests and other issues, CN blithely repeats the same laconic response: "CN assures that all
selection tools are directly related to the job requirements."
CN has now stopped producing quarterly reports. In fact, for several
years now, these reports have left much to be desired in terms of their
regularity and content as well as the accuracy of the data they contain.
For example, to name but a few of the problems with the reports, ATF has
received an annual report containing six photocopies of an incomplete
list, no information on the changes to the status of certain women employees
(information known since it concerns members of ATF), not to mention recruitment
by CN's hiring office in collaboration with ATF but not mentioned anywhere
in the report. And while in 2001, in its last analysis, the CHRC timidly
expressed the hope that CN would provide more information on its compliance
with the order, today it has simply decided to close the file.
The CHRC's decision amounts to sanctioning the flippant attitude displayed
by CN management for the last several years. Without the support of a
public institution like the CHRC, how are women supposed to ensure that
an employer like CN will hire them to non-traditional positions and provide
them with harassment-free work conditions? And what about the principle
that no one is above the law, regardless of whether he or she is an ordinary
citizen or represents a powerful corporation?
Part of the problem is that the Canadian Human Rights Act does
not currently contain any mechanism enabling the parties to go back to
the Tribunal for clarification or amendment of an order. So what will
it take for ATF to keep up the campaign against CN's discriminatory hiring
system? Does the group have to go back to Square One and file yet another
complaint? Unfortunately, since 1995, the CHRT no longer even has the
power to issue a similar order (see CHRA, par. 54.1(2)). Should the CHRC
be accused of contempt of court? Is this really the only recourse open
to ATF at this point?
In 1999, in a brief submitted to the CHRA review committee, NAWL, ATF,
and the Table Féministe called for amendments to the CHRC in order to
remedy some of its shortcomings. For the time being, however, the review
of the Act is at a standstill. The recent announcement by the new President
of the CHRC, Mary Gusella, to the effect that the Commission will focus
on mediation and prevention and will distance itself from a litigation-based
model does not augur well for amendments to the CHRA in the near future.
If you want the Canadian Human Rights Commission to continue to respect
the terms of the order and to require CN to do the same, write an e-mail
to the president of the CHRC, Ms. Mary Gusella, at info.com@chrc-ccdp.ca.
Tell her that:
- CN's hiring system has been at the root of serious violations of women's
rights;
- women are not willing to wait another 1 365 years to achieve equality;
while awaiting amendment of the CHRA so that the Tribunal can update
the terms of the order, the CHRC must continue to oversee it.
Rachel Cox is a lawyer specializing in human rights and labour laws
from Montreal, and is a member of NAWL.
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The American Convention on Human Rights is part of
the "regional solution"
By Lucie Lamarche
The Preamble to the Declaration of the Summit of the Americas, adopted by the
heads of state in Quebec City in 2001, calls on all the states to commit
to full respect for human rights and fundamental freedoms. To this end,
they agree to strengthen and refine the effectiveness of the inter-American
human rights system, including the Inter-American Commission and Court
of Human Rights (Preamble, par. 2). These institutions belong to the Organization
of American States (OAS), of which Canada has been a member since 1991.
The commitment is reminiscent, to some extent, of the "European model,"
in which human rights instruments are recognized as a fundamental concern
of the states integrated economically and institutionally within the Council
of Europe and the European Union.
The Summit of the Americas is not an OAS initiative but rather a stage
in the "heads of state summit process" designed to create a free trade
area of the Americas (FTAA).
No one can predict precisely what will become of the FTAA project or
in what form this integration will be concretized, but everyone agrees
that integration is happening. The proliferation of bilateral trade treaties,
the creation of subregional institutions, the proliferation of democracy-building
initiatives, the emphasis on security issues and, in general, cooperation
initiatives among the states of the hemisphere are all undeniable signs
of it.
Whether one vilifies or lauds the integration process, which-and this
is important-is not strictly economic in nature, one cannot deny its existence.
This trend appears irreversible to us. Yet Canada seems to be playing
cat and mouse with its regional human rights commitments. It can boast
of being one of the few countries that saw fit to ratify the American
Convention Against Terrorism as its first regional convention!!! How exactly can the regional transposition of a convention designed to fight terror be seen as an asset when deprived of its essential counterpart: the ratification of the (ACHR)? Canada is an important player in democracy promotion in the Americas. It actively supported the adoption of the Inter-American Democratic Charter by the OAS General Assembly in 2001. But this Charter is not a human rights treaty. And, as to the reasons why it has hesitated to propose ratification of the ACHR to Canadian civil society and the provinces since joining the OAS, the Canadian government has certainly not been guilty of excessive transparency. Canada is now sufficiently involved in the hemispheric integration process to embark on an urgent dialogue on this issue.
It must be admitted, though, that certain segments of Canadian civil
society still have confused ideas about the importance of ratification.
Many people still have their sights set on the United Nations and, for
some of us, identification with the Americas is still a rather hazy proposition.
The question often raised is: Why ratify a regional human rights instrument
that would have the same scope as international instruments of the same
nature to which Canada is already a party? The answer is clear. Where
Canada is concerned, the strengthening of democracy and human rights-friendly
regimes flows from a dual imperative: not only must we help strengthen
such regimes in Latin America, but we must step up our guarantees of the
rights of Canada's own nationals, which are put in jeopardy as the hemispheric
security agenda clashes with the human rights agenda.
It might be replied that Canada is bound by the American Declaration
on the Rights and Duties of Man. While this is true, it merely amounts
to saying that Canada would not want to submit to the jurisdiction of
the Inter-American Court of Human Rights, which it cannot recognize unless
it ratifies the Convention. So what does Canada fear?
In the debate over the advisability of Canada's ratification of the ACHR,
it would be wrong to isolate the Convention from the other inter-American
human rights instruments. Of particular note are the Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social
and Cultural Rights (San Salvador Protocol 1998, in force as of 2000)
and the Additional Protocol to the American Convention on Human Rights
to Abolish the Death Penalty (1990). The OAS has also adopted the Inter-American Convention on the Prevention, Punishment and Eradication
of Violence Against Women (Belém Do Pará Convention, 1994).
Since the Protocols are subordinate to the ACHR, the ratification of
the former depends on that of the latter. In the case of the San Salvador
Protocol, the stakes are high for Canada. In view of the considerable
deficiencies in the Canadian Charter of Rights and Freedoms around
the protection of economic and social rights, and the general unwillingness
of the Supreme Court to recognize, even indirectly, the existence of social
rights, the only logical conclusion is that by failing to take the necessary
steps to adopt this protocol, Canada inexplicably misses out on an opportunity
to keep in step with Europe and, as well, a chance to inscribe its involvement
in the hemisphere within a context that affirms the interdependence and
indivisibility of all human rights.
It is true that a few passages of the ACHR are not perfectly compatible
with the state of Canadian law. For this purpose, there are ratification
techniques (reservations, interpretative clauses) that we can use to protect
ourselves against interpretations that might jeopardize domestic human
rights protections. The use of these techniques would certainly be appropriate
in regard to the wording of ACHR Article 4(1) on the protection of life
"in general, from the moment of conception."
Some might be tempted to propose the ratification of less fundamental
or thematic instruments so as to buy time while stepping up Canada's presence
in the OAS. For example, it might be suggested that only the Inter-American
Convention on the Prevention, Punishment, and Eradication of Violence
Against Women or the Convention Against Torture ought to be
ratified at this time. But how strong is a tree without its roots? Besides,
this would be tantamount to denying the jurisdiction of the Inter-American
Court (the culmination of this human rights regime, whose counterpart
is absent from the UN system), depriving victims of rights violations
of a fundamental remedy. Moreover, it would promote a surgical vision
of human rights protection systems, contrary to the Vienna principles
on the interdependence of all rights. In the case of Canada, it would
amount, for all practical purposes, to a refusal to protect the social
and economic rights guaranteed by the San Salvador Protocol.
In conclusion, the debate over Canada's ratification of the ACHR concerns
not only the Canadian government but also civil society and the provinces.
With the exception of the NGOs that have long been working in solidarity
with Latin America, one often gets the impression that these actors behave
as if their citizenship were frozen in time and space. Human rights are
not chosen-they are respected! That is why the commitment of the heads
of state at Quebec City in 2001 must be taken at face value. We must demand
that the Canadian government invite civil society and the provinces to
take part in an effective dialogue leading to ratification of the ACHR.
There is no reason why this necessary ratification cannot be achieved
while also preserving Canadian human rights law and women's gains around
reproductive rights.
Lucie Lamarche is a professor in the Département des sciences juridiques
at the Université du Québec à Montréal and Director of CEDIM (the Centre
d'études sur le droit international et la mondialisation).
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Bill-C-22: Update
By Pamela Cross
NAWL's ongoing work in the area of custody and access has been focused
on Bill C-22, An Act to Amend the Divorce Act, since Justice Minister
Martin Cauchon introduced it into the House of Commons in December 2002.
We have prepared a brief responding to the legislation, which has been
submitted to the Standing Committee on Justice and Human Rights for consideration.
We have prepared and distributed a comprehensive education and lobby kit
to women's organizations across the country (You can read and download
this material on NAWL's Web site at www.nawl.ca). We have also met with women's equality-rights and anti-violence organizations
across the country from British Columbia to Newfoundland and Labrador.
These meetings, which have been well attended and vibrant, have provided
women with an opportunity to receive updates about Bill C-22, discuss
local concerns about custody and access and develop organizing strategies.
NAWL has come away from these meetings with a very clear understanding
of the key issues facing women who must deal with the family court system
in this country.
First and foremost, we are hearing from women that the present Divorce
Act does not reflect the needs of women and children who are leaving
abusive husbands/fathers. The "friendly parent rule" coupled with the
absence of any reference anywhere in the Act to family violence makes
the realities of these women and children invisible, and leads to expectations
that women will engage in shared parenting with men who have been and
often continue to be abusive to them and/or their children. Overwhelmingly, we have heard that access to legal representation is a huge
problem for women. In almost every part of the country, legal aid for
family law matters is either extremely limited or virtually non-existent.
Lawyers are generally very uninformed about the issue of violence against
women and children. Court processes and officials often discourage women
from bringing up violence in their custody applications.
Women across the country are struggling with a family court system that acts
as though joint custody/shared parenting is a legal presumption (which
it is not). Joint custody orders have become the norm, with sole custody
or limited access a hard-to-achieve exception.
Mobility is a challenge for women everywhere, but especially in remote parts
of the country, where women often need to relocate considerable distances
to keep safe from their abuser or to find employment or training/education
opportunities.
In every meeting, women talked about the importance of amending the Divorce
Act to reflect the needs and rights of women and children.
Opinions varied as to whether or not Bill C-22 addresses all of the concerns
with the present Divorce Act. Generally, women expressed concern
about the elimination of the terms custody and access, about the narrow
definition of family violence to include physical violence only, about
the ongoing emphasis on alternative dispute resolution and about the lack
of commitment to money to support legal aid and other court supports for
women and children. On the other hand, women were very happy to see that
the bill does not introduce a legal presumption in favour of shared parenting
and that it does provide criteria for the application of the best interests
of the child test. Bill C-22 had passed Second Reading and had been sent to the Standing Committee
on Justice and Human Rights for hearings, before returning to the House
of Commons for Third (and final) Reading.
However, the House of Commons had prorogued, thereby ending this session
of Parliament. As a result, all Bills on the Order Paper (including BillC-22)
have died.
When the House reconvenes, it will do so with a new Leader of the Liberal
Party. The Cabinet is likely to undergo considerable change; and the Liberals
will be focused on the next election.
The Divorce Act needs amendment, and with the death of C-22, the
government will need to move at some point to create new legislation to
speak to this. However, it is difficult to predict what priority a Paul
Martin government will give to this issue. It is also difficult to predict
what approach it would take to such reforms.
Women across Canada are clearly very concerned about the way in which
custody and access are dealt with in the courts. Even in this time of
uncertainty about the future of the Bill, we need to continue to speak
to politicians, the media and the public about the necessity of reforming
the Divorce Act to ensure it reflects the interests and rights
of women and children.
Please keep in touch with NAWL via our Web site for ongoing updates on
Bill C-22 and by email to pam@nawl.ca
to let us know what is happening in your community.
Pamela Cross is a feminist lawyer working as the Legal Director of
the Metropolitan Action Committee on Violence Against Women and Children
and the Ontario Women's Justice Network. She is presently serving as NAWL's
Family Law Reform Coordinator, and has been actively involved with custody
and access law reform for many years.
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COMMENTARY ON CANADA (ATTORNEY GENERAL) V. LESIUK
By Kerri A. Froc
Before becoming known by a section 15 Charter case bearing her
name, Kelly Lesiuk was a registered nurse, and worked part-time in Brandon,
Manitoba. She and her husband had a small child, and she was the primary
caregiver. In 1997, her husband obtained employment in Winnipeg. Although
they initially decided that Kelly would stay in Brandon with the child
and her husband would commute to Winnipeg on a weekly basis, it soon became
apparent that financially they could not continue to do so. After her
move to Winnipeg in 1998, Kelly became pregnant and her doctor recommended
that she not work. She applied for Employment Insurance ("EI"), only to
be told that she did not qualify. She had worked 667 hours in her previous
52-week qualifying period. The 1996 changes to the Employment Insurance
Act meant that Kelly's entitlement would be judged by how many hours
she had worked in total during her qualifying period, rather than how
many weeks she had worked (with a 15-hour per week minimum). The requisite
number of hours also varied depending on the unemployment rate in the
region from which she was applying. The required number of hours for those
applying from Winnipeg was 700. In other words, she missed qualifying
by 33 hours. Had the family stayed in Brandon, she would have qualified.
The impact of this decision on the Lesiuk family was substantial. In
Kelly's own words:
At a time when we needed the system most, we were left out in the
cold. To make it through, we've had to deplete our savings, RRSP's,
max out our credit cards and borrow money. I had to return to work
just six weeks after having my baby boy born by caesarian section…We
made a costly assumption, that our government would be there when
we needed them. We were terribly wrong.(1)
Kelly was not alone. The numbers of unemployed women receiving EI benefits
plummeted as a result of the 1996 changes, much more steeply than the
fall in the number of unemployed men receiving benefits. This ratio of
"beneficiaries to unemployed" (the "B/U ratio"), was utilized by the government
to measure the effectiveness of the (un)employment insurance system. Using
this measure, it was clear that the EI system was failing women:
From 1989 to 1998, the B/U ratio for unemployed men and women who
received benefits declined from 83% to 42%. A significant portion
of the decline occurred after the implementation of the impugned provisions,
with women being affected more than men. Between 1996 and 1998 the
B/U for women changed from 46.06% to 37.93% (an 8.1% decline) compared
to 49.77 to 45.96% for men (a 3.8% decline).(2)
In 1999, the government changed the manner in which B/U ratio was calculated.
Even so, the numbers still showed that there was a 15% gap between the
number of unemployed women who were eligible for benefits and the number
of unemployed men.
Kelly appealed the decision to deny her benefits to the Board of Referees,
and ultimately to an Umpire. Her argument was that the eligibility requirements
discriminated against her based on a combination gender and her status
as a parent. The Umpire agreed, stating:
In my view, the eligibility requirements demean the essential human
dignity of women who predominate in the part-time labour force because
they must work for longer periods than full-time workers in order
to demonstrate their workforce attachment…. Since women continue to
spend approximately twice as much time doing unpaid work than men,
women are predominantly affected. Thus, the underlying message is
that, to enjoy equal benefit of the law, women must become more like
men by increasing their hours of paid work, notwithstanding their
unpaid responsibilities. (In the Matter of a Claim by Kelly Lesiuk
(November, 1998) CUB 51142, at paragraph 64)
The Umpire's decision was appealed to the Federal Court of Appeal where
LEAF was granted intervener status. LEAF advocated a highly contextualized
analysis to determine whether the legislation discriminated against women.
LEAF situated the case within a historical context of (un)employment insurance,
which traditionally regarded women's claims with suspicion and deflected
their claims based on fears of "misuse" of the system. LEAF also situated
the case within a context of women's poverty, and the vulnerability to
poverty and unemployment experienced by female lone parents, and women
who are Aboriginal, members of a visible minority, or recent immigrants.
Following Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252
("Janzen"), and Brooks v. Canada Safeway, [1989] 1 S.C.R.
1219 ("Brooks"), LEAF explained that, in determining whether a legislative
provision discriminates, it matters not whether all members of an affected
group are women, nor whether all women are in the group of those adversely
affected. Rather, it is important to consider both the quantitative impact
of the legislation upon women (whether statistics show more women than
men are affected), and the qualitative impact (whether the impact of the
legislation is felt by women in a uniquely negative manner for reasons
related to gender).
LEAF argued that, not only was the quantitative disproportional impact
on women of the 1996 changes manifest, but the reasons for this disproportional
impact were intimately linked to gender. More women than men make up the
part-time workforce (70% of part-time workers are women). This is explained
in part by the fact that a vast majority of those primarily responsible
for care giving responsibilities in Canadian households are women, reducing
the amount of time they have available for paid employment. Women also
comprise the vast majority of "involuntary" part-time workers (70%).(3)
When women become unemployed, their bouts of unemployment are longer than
men's. This constellation of gender-related factors means that women are
not able to accumulate as many hours of paid employment per year as men
and are not able to work as intensively as men. Ironically, the 1996 changes
made it easier to qualify for those with intensive seasonal work who previously
could not meet the weeks-based requirement, primarily men.
LEAF argued that the eligibility criteria's exclusive reliance upon hours
as a measure of workforce attachment is based upon and valorizes male
patterns of work. The eligibility criteria do not recognize that women
might be just as attached to the workforce as men even though they do
not have as many hours of employment.
However, the Federal Court of Appeal found no discrimination against
women.[omit](4) The Court considered the issue only from the perspective
of "women in a parental status," and not women as a whole. This meant
that the Court did not have to fully consider the statistical information
that compared women as a whole with men. Nevertheless, the Court
found that Kelly individually, as a woman with parental responsibilities,
and others like her, did suffer differential treatment. However, the Court
found that the legislation did not demean her human dignity because the
eligibility criteria were not "rooted in stereotype and prejudice" and
would not make a woman feel less valued as a worker: "[r]ather, I would
imagine that a reasonable person would simply feel that they had narrowly
missed qualifying because of an unfortunate confluence of events" (at
paragraph 45). Further, the Court stated that the criteria responded to
the actual needs of women because they permitted greater flexibility in
recognizing work arrangements. This was presumably a reference to the
fact that the 1996 changes resulted in all hours of employment counting
towards eligibility-likely to benefit women who hold multiple jobs (who,
as a practical matter, must lose all jobs simultaneously in order to receive
benefits anyway). The Court also referred to the lack of "severe and localized
effect" because the differential treatment was really between those who
qualified and those who did not, and was "not localized on women and/or
women in parental status in any statistically significant manner" (at
paragraph 50).
The implications of Lesiuk, unfortunately, represent a retreat
from the analysis of adverse-effects discrimination found in such cases
as Brooks, Janzen and British Columbia (Public Service Employee Relations
Commission) v. BCGSEU, [1999] 3 S.C.R. 3. Arguably, the historical
analysis presented in Lesiuk demonstrates how the eligibility criteria
operated on the basis of the system's historic stereotype of women as
"secondary earners." Although the Court did not agree, it was erroneous
for the Court to place undue emphasis on whether the legislation functioned
on the basis of "stereotype or prejudice" in a case of adverse-effects
discrimination. This borders perilously close to requiring that Parliament
intended the adverse-effects against a particular group in order for discrimination
to be made out.
As a second example of this retreat, the Court relied almost exclusively
upon the "objective" aspect of the subjective-objective test for demonstrating
the infringement of human dignity. Consequently, Kelly probably would
not have been able to succeed unless she could have shown that the eligibility
criteria were unreasonable or unfair, a requirement that was rejected
early in s.15 Charter jurisprudence. This would have been difficult,
considering the Court's conclusion, peppered throughout its decision on
section 15, that this was an "administratively necessary tool tailored
to correspond to the requirements of a viable contributory insurance scheme."(5)
This echoes Safeway's arguments in Brooks that it made an administrative
decision to compensate some health-related risks and not others (i.e.
pregnancy) in the course of providing a viable disability insurance scheme.
As a whole, the Federal Court of Appeal's discrimination analysis is
very formalistic, with the Court commenting that most women who applied
qualified for benefits, that some women benefited from the change, that
the group affected did not appear to have unifying characteristics and
were not "uniformly disadvantaged." As noted above, none of these factors
exclude a finding of discrimination, and to suggest otherwise is contrary
to previous jurisprudence. Comparing those who were denied benefits to
those who received benefits rarely sheds light on whether there is substantively
differential treatment, as the Ontario Court of Appeal recently recognized
in Falkiner v. Ontario (2002), 59 O.R. (3d) 481.
It is likely no coincidence that Lesiuk dealt with EI benefits.
The Federal Court of Appeal has interpreted s.15 in other cases concerning
EI benefits in the same formalistic manner, and on some occasions with
tacit approval by the Supreme Court of Canada (by refusing leave to appeal,
as was the case in Lesiuk). On three different occasions, the Federal
Court of Appeal ruled that the statutory cap on the weeks of regular benefits
received by a woman who has previously received maternity benefits did
not violate women's s.15 Charter rights.(6) In Solbach, the Court
found no discrimination because the statutory cap also applied to men
on parental leave and to those with a disability who received sickness
benefits, and because the distinction was based not on sex, but entitlement
to regular benefits. Similar reasons were employed to reject women's claims
that other sections of the Employment Insurance Act discriminated
against them. (7)
While space does not allow an analysis of the cases here, it should be
noted that the Supreme Court of Canada, in addition to giving its tacit
approval of the Federal Court of Appeal's reasoning in the EI cases, has
itself recently rejected s.15 challenges to the provision of welfare benefits
in Gosselin v. Quebec (Attorney General), [2002] S.C.J. No. 85
(discussed in a previous issue of Jurisfemme, volume 22, no. 1, Fall 2002)
and Canada Pension Plan ("CPP") disability benefits in Granovsky v.
Canada, [2000] 1 S.C.R. 703. Significantly, Law v. Canada,
[1999] 1 S.C.R. 497, which introduced the requirement to show an infringement
of a claimant's "human dignity" in the section 15 analysis, rejected a
claim that CPP discriminated on the basis of age with respect to the entitlement
to survivor's benefits.
Even if this trend cannot be reversed, I share the opinion of other academic
commentators that it is important for equality-seeking groups to continue
to insist that courts bring the proper principles to bear in determining
s.15 claims of discrimination in the provision of government benefits.
If nothing else, it brings such issues into the public consciousness so
that political remedies may be pursued where legal remedies fail.
References
1. Personal Statement by Kelly Lesiuk, filed in the judicial review
before the Federal Court of Appeal as part of the Applicant's Record,
Volume 1, Tab 2 at p. 62.
2. Women's Legal Education and Action Fund's (LEAF) Memorandum of Fact
and Law filed in the Federal Court of Appeal, at paragraph 17, based on
the evidence of Dr. Paul Phillips in the case before the Umpire.
3. LEAF's Memorandum of Fact and Law, at paragraphs 12-13 and 16, derived
from the evidence of Dr. Paul Phillips in the case before the Umpire and
figures compiled by Statistics Canada.
4. See Canada (Attorney General) v. Lesiuk (2003), 299 N.R. 307.
5. At paragraphs 16 and 51.
6. See Solbach v. Canada (Attorney General) (1999), 252 N. R. 137 [hereinafter
"Solbach"]; Canada (Attorney General) v. Brown (2001), 286 N.R. 395, and
Miller v. Canada (Attorney General) (2002), 220 D.L.R. (4th) 149.
7. See Krock v. Canada (Attorney General) (2001), 273 N.R. 228, leave
to appeal to the Supreme Court of Canada denied, (2001), 289 N.R. 387,
and Périgny v. Canada (Attorney General), [2003] F.C.J. No. 295.
Kerri A. Froc is a lawyer from Regina, Saskatchewan, and acted as
counsel for LEAF in Lesiuk. However, the opinions she expresses in this
article are purely her own.
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UN SPECIAL RAPPORTEUR VISITS CANADA, 15-26 SEPTEMBER
2003
By Marlène D. Balthazar
At the invitation of the Canadian government, the Special Rapporteur
of the UN Commission on Human Rights, Mr. Doudou Diene, visited Canada
from 15-26 September 2003. During his stay, the former Senegalese diplomat
and UNESCO delegate went to Ottawa, Toronto, Halifax, Vancouver and Montreal
and met with the government representatives, individuals, organizations,
and groups interested in the issues of racial discrimination and respect
for human rights.
In Montreal, as part of a meeting held by the Institut d'Études Internationales
at the Université du Québec à Montréal on September 16, Mr. Diene spoke
on strategies for fighting racism, racial discrimination, and intolerance.
Racism and discrimination persist today despite significant progress
in the field of human rights, Mr. Diene stressed. The situation has in
fact worsened since 11 September 2001, both in Canada and around the world.
And with the advent of Internet, more subtle forms of racism have appeared.
Certain cultures are being demonized, and cultural superiority theories
are raising their ugly head once again.
It seems that the legal strategy adopted by numerous countries to combat
racism and discrimination has not yielded the intended results. The adoption
of human rights charters and domestic laws to implement and enforce international
conventions against racism is indeed necessary, but it has proven totally
insufficient to combat this scourge of the planet. Mr. Diene cited the
case of South Africa; there, oppressors and victims joined forces to draft
various laws and regulations, but these were insufficient to grant full
equality to the former victims of apartheid. He congratulated the Government
of Canada on its rights charter and its multiculturalism and human rights
laws, but argued that the legalistic strategy for combating racism will
not suffice by itself; an intellectual strategy is necessary in order
to pull this evil out by the roots.
For Mr. Diene, such an intellectual strategy consists in combing through
history to identify the historical, cultural, and psychological roots
of racism. In so doing, the definition of culture itself must come in
for a reworking. It must no longer be seen as the embodiment of a dominant
ideology but, instead, must allow for the expression of all the cultures
in a society. Nearly all of the world's recent conflicts can be seen to
be pervaded by a pernicious concept of identity in which this last is
defined by a dominant group and becomes a sort of default identity, a
referent forced upon the other cultures in question.
These identities must be reconstructed to make them more pluralistic
and multicultural. The meeting between two cultures gives rise to cultural
tension stemming from ignorance, fear of the unknown, lack of knowledge
about the other. This tension can serve as a source of dialogue, as a
springboard toward greater rapprochement and openness to the other. It
is important to recognize and value cultural specificity in all its forms,
to promote universal values, to favor discussion and dialogue among all
communities, and to stress the need to live together in peace, for this
is the only way to ensure harmonious relations between persons of different
cultures.
Such an intellectual strategy will only be effective if it is championed
by human rights promoters, thinkers, philosophers, intellectuals, artists,
and the scientific community. These and other individuals must reflect
on the issues with a view to developing new theories, proposing new ways
of living and building a viable multiculturalism that can ensure respect
for and self-affirmation of all communities and cultures.
Update
Judge Fred Kovach sentenced Dean Edmondson to a mere two-year house arrest
for sexually assaulting a 12-year-old Cree girl. Judge Kovach agreed that
in a case such as this, a conditional sentence is rare but stated that
he felt given that since the girl was sexually abused before, that she
was the sexual aggressor in this case. Two other men were charged in this
case but were found not guilty. NAWL and other women's organizations are
outraged by Judge Kovach's reasoning in issuing this sentence and encourages
women to speak out. The Crown in Saskatchewan is appealing this decision.
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How fair is the MBM to women?
By Andrée Côté
On May 27, 2003, Human Resources Development Canada released its new approach
to measuring low income, the so-called Market Basket Measure (MBM). This
method calculates the cost of food, clothing, shelter and other essentials
deemed necessary for a family of four, and adjusts the amount for different
cities. This amount basically becomes the poverty line. The MBM method
is said to be "absolute", in contrast to Statistics Canada's "Low Income
Cut-Off"(LICO), which considers a person to be in "straightened circumstances"
if she allocates 20% or more of her income than an average person would
spend on food, clothing and shelter. The LICO is thus a relative measure
of poverty that takes into consideration the real changes in consumption
as well as the increase in the population's standard of living. A third
measure, the "Low Income Measure"(LIM) is even more equitable, since it
measures poverty as being less than one half of the median gross income.
To everyone's surprise, the Market Basket Measure did not decrease the
poverty rate, when compared to the LICO (calculated after tax). Thus the
overall rate of low income rose to 13.1% from 10.9%, and child poverty
is up to 16.9% from 12.6%. (However, when compared to the LICO before
income tax which has been, until very recently, the most commonly used
barometer of low income, the overall poverty rate would indeed decrease
from 14.7%).
This may reassure some anti-poverty activists, who feared that the government
would cave into the Fraser Institute and right wing lobby proposals with
an absolute method that would artificially lower the poverty rate. However,
a preliminary analysis seems to indicate that the MBM will indeed "disappear"
the poverty of some groups of people, in particular elderly women.
The effect of the MBM on unattached women who are over 65 years of age
is indeed important: 21% of these women were low income under the after
tax LICO (and 46.4% before tax) in the year 2000. However, under the MBM,
only 11% of unattached, elderly women will be considered "low income".
Thus the number of unattached, elderly women living in poverty has basically
been cut by half, without any substantive change in their real living
conditions. Does this make sense?
The MBM is said to be more sensitive to provincial variations, and in
Québec the poverty rate of unattached elderly women is down from 37.6%
when measured with the after tax LICO (64.6% when measured to the before
tax LICO), to only 5.1% with the MBM. On May 28, 2003, Le Devoir
carried a headline proclaiming that the statistics released by HRDC prove
that Québec has improved its record on the anti-poverty front (Dufour,
Valérie (2003). Le Québec s'améliore au tableau de la pauvreté. Le
Devoir, May 28, 2003.). How will the new provincial Liberal government
use this data in its plan to "re-engineer" the Québec state? Recently,
it announced that it is abolishing the universality of the much-loved
$5 a day daycare program, and imposing drastic cuts in its welfare budget.
It may now be tempted to use the MBM statistics to justify further cuts
in programs or reductions in funding.
Has HRDC taken into consideration the specific needs of elderly, unattached
women when constituting their market basket? Have they done a gender-based
analysis of the impact of this policy? Is the MBM a realistic assessment,
or will it throw more confusion on the assessment of the poverty rates
and on the development of policy initiatives for older women?
This problem illustrates the basic flaw of the MBM: it is an ad hoc approach,
where items are put into a basket according to the priorities of a particular
moment in time, and standards and limits are set for many years to come.
While in some regards the basket may now seem well-stocked, the ploy of
imbedding long-run deterioration in a short-run enhancement will result
in short-lived gains. Indeed, the MBM is an absolute, rigid measure of
poverty that will not age well, unless it is revised and updated by people
who have hands-on experience with, and expertise on, poverty. In a briefing,
Federal government officials admitted that there is currently no process
or plan to amend the list of items in the market basket. But the MBM is
already behind the times: it does not include a family computer or access
to the Internet. While the Federal government is proposing "e-democracy",
its Human Resources Department proposes a method to measure low income
that excludes one of the modern signposts of citizenship.
The Market Basket Measure is a lot less fair than the LICO or the LIM,
and it begs the question: why did HRDC decide that we need a poverty measure
that falls short of social inclusion?
Andrée Côté is NAWL's Director of Legislation and Law Reform.
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JURISFEMME Volume 22, No. 3 Fall 2003
Jurisfemme is a publication of the
National Association of Women and the Law (NAWL),
1066 Somerset West,
suite 303,
Ottawa, ON, K1Y 4T3
Telephone: (613) 241-7570,
Fax: (613) 241-4657
E-mail: info@nawl.ca
Website: http://www.nawl.ca
NAWL is a national non-profit women's organization which promotes
the equality rights of women through legal education, research and law
reform advocacy. We recognize that each woman's experience of inequality
is unique due to systemic discrimination related to race, class, sexual
orientation, disability, age, language and other factors. In our view,
a just and equal society is one which values diversity and is inclusive
of it. We are committed to working collectively and in coalition with
other groups to dismantle barriers to all women's equality.
Editors
Marlène Dubuisson-Balthazar, Kecia Podetz, Ros Salvador
Jurisfemme Co-ordinator
Sharmila Biswas-Mistry
Publication Co-ordinator
Sharmila Biswas-Mistry
Contributions of articles, notices and resource information are encouraged.
We reserve the right to edit submissions.
NAWL gratefully acknowledges the financial support of the Women's
Program, Status of Women Canada.
ISSN 0835-0892
NAWL Staff and National Steering Committee
Executive Director Bonnie Diamond
Director of Legislation & Law Reform Andrée Côté
Administrative Officer Pam Mayhew
Communications Officer Sharmila Biswas-Mistry
National Steering Committee
Kim Lewis (Ottawa)
Kim Brooks (Kingston)
Claudine Barabé (Québec)
Catherine Meade (Ottawa)
Kecia Podetz (Ottawa)
Patricia Doyle Bedwell (Halifax)
Regional Representatives
Ontario Ruth Magenda Goba, Toronto, ON
West/NWT Yvonne Peters, Winnipeg, MB
Quebec Marlène Dubuisson-Balthazar, Montreal, QC
Atlantic Janice Brown, Halifax, NS
BC/Yukon Ros Salvador, Victoria
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