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Jurisfemme
Volume 21, No. 2 Summer 2002
ISSN 0835-0892
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Jurisfemme |
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In this issue: NAWL's 14th Biennial Conference: Women, the Family and the State: Opening address Minority women, family law and the state The struggle for pay equity in New Brunswick Transgender Human Rights and Women's Substantive Equality Mothers as Secondary Defendants in Child Sexual Abuse Claims World Conference Against Racism: New Obligations to Remedy Racism Confidential Records and Sexual Assault Complainants post-Mills: Still Vulnerable? "Bridging Visions" of Law and Art for Women, the Family and the State HATS OFF TO CLAIRE L'HEUREUX- DUBE NATIONAL ASSOCIATION OF WOMEN AND THE LAW CONFERENCE 2002 RESOLUTIONS |
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Conference Overviewby Bonnie DiamondFrom March 7 - 10, 2002, over 400 participants from throughout Canada and from Germany, China, and Brazil, gathered at the Ottawa Congress Centre for NAWL's 14th Biennial Conference on Women, the Family and the State. By all accounts, the conference was a success, featuring a dynamic program, diverse participation, spirited policy discussions, visual, sonic and performance art, and an evening of celebrating the stellar career of a Supreme Court Judge, the Honourable Madame Justice Claire L'Heureux-Dubé. (More detailed accounts of these events are found throughout this edition of Jurisfemme.) On opening night at Ottawa City Hall, Chief Lisa Ozawanimke welcomed participants to Algonquin Land and shared some of her experiences as an Algonquin woman exercising leadership in her own community. Chantal Tie, the conference program chair, delivered an inspiring and very well received introductory keynote address (see page 1) which situated the conference theme and workshops in a globalized context and set a tone of anticipation for the workshops to come. Guests, participants, and local Ottawa supporters enjoyed a period of networking and refreshments and then had an opportunity to explore the art exhibit, Templates for Activism, and to experience the live performance piece, the Rape Maze. Throughout the next two-and-a-half days, legal practitioners, academics, students, frontline workers, government policy people, and feminist activists from different communities, described what globalized restructuring has done to women in all regions of Canada and around the world. It was especially clear how women who belong to historically disadvantaged communities such as Aboriginal women, women of colour, poor women, women living in rural and isolated communities, women with disabilities, and lesbians are hard hit by neo-liberal policies in Canada. Apart from the regular workshops, a special series of workshops were organized on the Americas. This was a follow-up discussion to a dialogue that began at the Quebec City Summit (2001) around the context of hemispheric integration and discussions surrounding the Free Trade Agreement of the Americas (FTAA). One particular point of discussion centred on Canada's possible ratification of the American Convention on Human Rights (ACHR) in the face of some feminists' concerns that this might jeopardize hard won rights to abortion and contraception. NAWL continues to seek a way to simultaneously preserve abortion rights in Canada and promote reproductive rights for women in the Americas. Workshops in the Americas series also explored the possible advantages of ratification of the ACHR and other regional human rights instruments in regards to the protection of social and economic rights, and the elimination of violence against women in all signatory countries. As a first time feature at this conference, participants took part in nine strategic workshops. This allowed participants to plan strategies to help guide NAWL in key areas of law reform, such as lobbying on custody and access, gauging impacts of policy decisions and funding cuts on women with disabilities, state action and women's poverty, litigating women's equality claims, women friendly law firms, restorative justice from a women's equality perspective, follow-up on action against racism after the Durban conference, formulating questions for a consultation on transgender human rights and women's substantive equality, and options for change on women and electoral politics. Several keynotes and panel presentations added energy and inspiration to the conference. Vivian Barbot, president of the Fédération des femmes du Québec, addressed the challenges that feminists face in struggling to address the legitimate needs of different communities of women. Her talk underscored the value of "inclusion" in the women's movement, but also candidly addressed the difficulties that arise in trying to fully consider the diverse views that result from being inclusive. At the closing banquet, Maude Barlow delivered a spirited address entitled Taking of the Commons, in which she described the systematic plundering for profit of the earth's resources that were once held in common as natural gifts to all living creatures. She warned of the hazards of turning to bottled drinking water rather than requiring that our waters be rendered safe and safeguarded, of the wholesale commercialization of the world's water, and of the ruthless patents on living lifelines such as the cancer gene. Her hard words delivered a difficult message but one well received by the audience. The conference culminated with a policy setting plenary in which issues were debated and resolutions passed. The resolutions that were passed are listed in this edition of Jurisfemme p.17. NAWL was very pleased with the number and diversity of conference participants. Twenty-six women activists who identified as having a disability attended the conference. Thanks to the DisAbled Women's Action Network of Canada (DAWN) for assisting NAWL with conference organizing and helping to facilitate member attendance. NAWL wishes to thank the conference organizing team, particularly the Conference Organizing Chair, Kim Lewis and the Conference Program Chair, Chantal Tie, and their committees for the countless hours that went into this wonderful event. As well, we are very grateful to Catalyst Research for the organizational support provided to the committees. We would also like to thank Louise Allaire for volunteering her time to take photographs during the conference. Committee members: Kim Lewis (co-chair), Chantal Tie (co-chair), Jennie Abell, Constance Backhouse, Natasha Bakht, Andrée Côté, Bonnie Diamond, cj fleury, Ritu Gambhir, Gina Hill, Laurie Joe, Diana Majury, Kathy Marshall, Kay Marshall, Catherine Meade, Celeste McKay, Carolyn J Rowe and Jackie Steele. Bonnie Diamond is the Executive Director of NAWL. [Four photos included in this article] |
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The following are a few summaries of workshops and discussions that were presented during NAWL's 14th Biennial Conference. All the workshops and discussions will be available in the coming months. Stay tuned. . . |
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W(h)ither Motherhood, W(h)ither Feminism:Child Custody Law ReformSpeaker: Susan B. BoydThis presentation addressed the 'disappearance' of mothers in custody law reform debates over the past decade in Canada, and also looked at the 'disappearance' of related issues such as women's caregiving responsibility and woman abuse. Law reform initiatives in the field of custody and access law are proceeding in a climate of 'backlash' towards feminism and, arguably, towards mothers in family law. Backlash signifies resistance to social change by those who say that feminists control the law reform agenda, that legal change has gone too far in empowering women, that special rights are being given to women, and that the 'family' and fathers are under threat. Many participants in the law reform debates assume (incorrectly) that mothers are now favoured inappropriately in child custody law. They argue that law reform must therefore be directed at encouraging fathers to be involved with children after separation or divorce and at facilitating the concept of shared parenting (which is the new terminology for joint custody). This trend raises complex issues for women, as they are increasingly tied to men from whom they have separated through legal devices such as access, joint custody, and shared parenting. Mothers continue to struggle in this field of law to have their caregiving work and relationships recognized, especially as shared parenting enters the legal system as a normative objective with a renewed emphasis on the importance of fathers to children's well-being. A traditional patriarchal definition of "family" that marginalizes many women along the lines of sexual orientation, class, and race/culture is being re-asserted in the legal system. Some jurisdictions, such as Australia, England, and Washington State, have introduced laws that no longer refer to 'custody' and 'access,' but rather, emphasize fragmented components of custody and access through such mechanisms as residence and contact orders, and parenting plans. These new legislative models tend to emphasize shared parental responsibilities as the normative ideal. Although studies have identified serious problems with these law reforms, and their impact on abused women and children in particular, the Special Joint Senate and House of Commons Committee appointed in 1997 to review custody and access law uncritically adopted a similar approach. It remains an open question what the results of extensive lobbying by women's groups, pointing out the gendered implications of these law reform initiatives, will be. Arguably, the voices of feminists, women's groups, and battered women's advocates have been overlooked in the cacophony of interventions in the law reform field. To assert that the specific position of women, and the disproportionate responsibility that women have for childcare, is relevant in child custody and access law is increasingly seen as anachronistic, and as contrary to a focus on the best interests of children. This presentation suggested that it would be a travesty if gendered power relations were not taken into account in this law reform process. It also suggested that the trends in child custody law reform are related to broader trends towards privatization of economic responsibility, including retrenchment of the welfare state. In general, the family law system in Canada and other countries such as Australia has 'tilted' more and more against women, particularly due to legal aid cutbacks and the trend in custody laws to reinforce the 'post-divorce family unit.' Susan B. Boyd holds the Chair in Feminist Legal Studies, and is Director of the Centre for Feminist Legal Studies at the University of British Columbia's Faculty of Law where she teaches courses in Feminist Legal Studies, Sexuality and Law, and Family Law. |
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Minority women, family law and the stateSpeaker: Merav ShmueliWomen belonging to cultural minorities sometimes seek state support regarding inequalities they experience in their communities. Such inequalities, justified in the name of "culture", are often especially evident in the family law arena, and in particular in marriage and divorce laws. Marriage and divorce laws deal with personal matters, with questions such as who may marry whom and who may be considered a member of a given group. As such, these laws are important for the minority community's self-determination and are seen as crucial to its survival as a distinct cultural entity. At the same time, marriage and divorce laws in many cultures disadvantage women, since they function as major tools for controlling women's behaviour. This workshop examined the ways in which various democratic states respond to minority women's legal challenges of marriage and divorce laws of their communities, by analyzing three legal cases. The first two cases are an American Supreme Court decision regarding Aboriginal women who marry outside their communities, and an Indian Supreme Court decision and subsequent legislation regarding Muslim women's rights upon divorce. In the American case, the court decided not to intervene in a discriminatory marriage law of an Aboriginal community, stating that such an intervention will endanger the cultural continuity of the community. I argued that in this decision, the court ignored the strong influence of the American state on the development of that law. Indeed, it ignored the "external intervention" that had already reshaped the minority culture. In the Indian case, both the court and the legislature took into account a particular version of Muslim divorce law, offered by male spokesmen of the Muslim community, as representing the "true" Muslim tradition, and ignored the alternative versions suggested by Muslim women. By assuming a clear dichotomy between state "intervention" and "non-intervention" into minority cultures, the legal systems in both cases employed a simplistic and essentialist view of "culture". They mistakenly regarded the cultures of the relevant minority communities as something unchanging and homogeneous. A more sensitive approach, I argued, should acknowledge the dynamic character of cultures. Culture is not fixed but a process. Cultural norms constantly develop and reshape as a result of various factors, including external influences. It should also be recognized that culture is a rich resource that contains many alternative, sometimes contradictory components, and may offer a variety of readings to choose from. In many cases, it is inaccurate to present a single norm or practice as representing the "real" essence of a given culture. The selective use of specific cultural components, and not others, by some members of a group, may serve the interests of dominant sectors of a given community and may silence alternative readings of cultural norms. This is highly relevant regarding cultural norms that address women's behaviour, since women in many cultures are excluded from the process of interpretation of traditional teachings. The question of how a legal system should address both the dynamic character of cultures and the diversity of opinions within cultures is very difficult and challenging. The third case involves South African post-apartheid legislation regarding the recognition of African customary marriages. I discussed the approach of the South African Law Commission during the legislative process, an approach that addressed both the extent of Western intervention into the development of African customary law, and the diversity of views within African communities. I argued that the law that had resulted from this process provides at least the genesis of a more productive approach to the challenge of traditional family laws discriminating against women. Merav Shmueli is a S.J.D candidate at the Faculty of Law at the University of Toronto. |
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The struggle for pay equity in New BrunswickSpeaker: Louise AucoinNo one can deny that the pay inequities which women experience on the labour market pose great social challenges. Equal pay remains a dream for many women. In New Brunswick as elsewhere in Canada, we are currently seeing important gaps between the wages paid to women and to men for work of equal value. The Coalition for Wage Equity brings together a number of New Brunswick citizens and organizations who seek to correct this unfairness and demand that the New Brunswick government legislate in this matter. Pay equity legislation requires employers to compare the worth of male and female dominant occupations. If this worth is equal or comparable, the salaries paid must be the same. The Coalition is demanding that the provincial government legislate to ensure pay equity in all economic activity sectors. At this time, New Brunswick's Pay Equity Act only covers Part 1 of Annex 1 of the Public Service Labour Relations Act. It applies neither to school districts, nor to hospitals or other corporations. The Coalition's goals are to obtain a proactive pay equity legislation covering 1) all of the public service, and 2) private sector employers. Failing such proactive legislation, the record indicates minimal progress. Between 1980 and 1999, approximately two decades, we have only seen a 5 per cent increase of women's salary with regard to men. In the year 2000, New Brunswick women's hourly wage amounted to only 78 per cent of men's. If women's salaries are inferior to men's because they are taking care of children, there should be no wage gap in the case of women who have not yet married and who are, for the most part, childless. This group of women includes recent university graduates who also experience salaries inferior to those of men by 16 per cent, as soon as they enter the labour force. At this rate, we will never attain equality, nor will our daughters. Yet, pay equity is not a novelty suggestion but a standard advocated for by the Geneva-based World Trade Organization since 1919. What is the goal of pay equity? Why are we setting our sights on provincial pay equity legislation? Because we see it as a tool, a means to attain this dream of equality between female and male New Brunswickers. It is in this spirit that the Coalition for Pay Equity outreaches to various constituencies, approaching labour unions, employers, the media, the public and political women and men. We work at situating and giving context to the problem of pay inequity experienced by women on the labour market, in order to convince all stakeholders to correct this sorry situation. Louise Aucoin teaches labour law, environmental law, municipal law and testamentary law at the Faculty of Law at the Université de Moncton, in New Brunswick. |
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Transgender Human Rights and Women's Substantive EqualityWorkshop conducted by the NAWL Working Group on Transgender IssuesThrough a number of successful cases -- specifically involving male-to-female transsexuals -- provincial courts and human rights tribunals have acknowledged discrimination against transgendered persons, although specific protections have yet to be encoded in law. Developing appropriate analysis and strategies for advancing the rights and securing protections for transgendered persons remains a critical question engaging equality-seeking groups. The aim of this workshop was to engage women's equality advocates on specific questions of relevance to group policy and law reform initiatives, pertaining to the relation between transgender human rights and the substantive equality rights of women. To facilitate the workshop, a discussion paper was made available to participants at the beginning of the conference. The members of the NAWL Working Group collectively wrote the paper on Transgender Issues, and it reflects our different opinions and approaches to a selection of issues and debates. The paper posed a number of questions that have emerged from our investigation and discussions of transgender issues. The workshop was designed to enable conference participants to formulate additional questions that may guide a national consultation on areas such as: the relation between transgender rights and women's rights; women-only spaces; (de)racialized notions of "woman"; negotiating the grounds for protection of transgender human rights (such as sex, sexual orientation, or disability); possible connections between racism and transphobia; the problems with medical intervention and invasive surgery; and, the paradox of transgender marriage. Recent litigation favouring the extension of statutory human rights protections to transgendered persons has raised a number of issues pertaining to the substantive equality of women. Various members of women's groups and support services have urged consideration that the extension of protections on the basis of 'gender identity', such as would require the acceptance and inclusion of male-to-female transgender women in 'woman-only' spaces, has a bearing on women's ability to create and maintain 'safe spaces'. Most women's organizations acknowledge the oppression and discrimination faced by transgendered individuals, and they support the extension of human rights protections to them. There is little consensus, however, among the organizations on how to further the equality rights of both disadvantaged groups. Moreover, little work has been done to relate such questions to specific challenges for law reform, on such issues as gender-based violence, the racial politics of self-definition, the medical control of sexuality and sexual identity, and the judicial deference to, and reinforcement of, surgical intervention. The brief presentations by each member of the working group offered an overview of the debates on the above topics. The participants, including representatives from rape crisis centres and from the transgender movement, focussed primarily on the politics of 'woman-only' spaces related specifically to the recent case of Nixon v. Vancouver Rape Relief Society, [2002] B.C.H.R.T.D. No.1. They identified areas of concern and interest emerging from this case, which they considered important to include in a national consultation. Margaret Denike, Diana Majury, Sal Renshaw, Carolyn Rowe and Ros Salvador provided brief presentations. [One photo included in this article] |
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Mothers as Secondary Defendants in Child Sexual Abuse ClaimsSpeakers: Denise Réaume & Shauna Van PraaghA new development has emerged as adult survivors of child sexual abuse turn to civil litigation as a tool in obtaining redress for their injury: the joinder of the plaintiff's mother as a defendant, either by the plaintiff herself or by the primary defendant, usually the father or father figure. The mother is, in a sense, a secondary defendant in these cases, since the wrongdoing attributed to her is that she failed to prevent the primary defendant from committing the abuse. These cases raise interesting challenges for tort doctrine. How civil litigation is likely to play out in this context must be analyzed against the backdrop of an understanding of the needs of survivors of child abuse. To this end, we draw on the recent work of the Law Commission in identifying the needs of victims of institutional abuse. However, we should not be too quick to assume that whatever the benefits of litigation for victims of institutional abuse, they will automatically carry over to the context of litigation between family members. The capacity of tort law to play a positive role must be assessed by comparison with other response mechanisms - both familial and governmental - that may be available. While it may be obvious that greater effort to intervene to prevent violence in the family is the best approach, in the short term, it seems unlikely that state intervention is likely to be improved. Therefore, we can expect more litigation, and must take on the task of working through the available tort arguments for and against liability. We argued that we are only beginning to appreciate the complexities of using tort law standards to assess events within a family. The doctrine of intra-familial immunity has made it unnecessary until recently to confront these complexities. Seeking redress for child sexual abuse through civil litigation requires dealing with the family at its most complex. In this presentation, we explored the resources within the law of negligence for properly contextualizing family relationships, including the conditions of inequality that often characterize relationships between women and their male partners. We concluded that some of this work could be done through the use of the traditional requirement of reasonableness by asking whether the defendant's conduct was reasonable in the circumstances. Through such contextualization, we may be able to prevent courts from relying on gender stereotypes in assessing the behaviour of women who are alleged to have failed to protect their child from abuse. This will require us to develop a richer understanding of the challenges facing women in detecting and responding decisively to evidence of child abuse. To begin this task, we turned to the available empirical literature recounting women's experiences as mothers of child abuse victims. It is illuminating to set these issues in the context of other areas of recent tort developments that have used the duty concept to limit tort liability in particular areas of activity or with respect to particular kinds of damage. In recent years, courts have appeared open to the possibility of recovery in areas traditionally not covered by tort liability, such as negligence causing pure economic loss and negligence by public authorities, only to begin to pull back when faced with some of the complexities of using negligence law in these contexts. More recently, the complexities of inserting negligence standards into the family context were discussed in Dobson v. Dobson [Dobson v. Dobson, [1999] 2 S.C.R. 753]. These trends led us to speculate about the feasibility of a revised doctrine of partial intra-familial immunity, under the rubric of determining whether a duty is owed to prevent a third party from committing abuse against one's child. Denise Réaume teaches law at the University of Toronto. Her main areas of focus are Torts, Discrimination Law, and Language Rights. Shauna Van Praagh is an associate professor and member of the Institute of Comparative Law at McGill University. She teaches Civil Liability, Children and Law, Social Diversity and Law, and Feminist Legal Theory. [One photo included in this article] |
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The UN Declaration on the Elimination of Violence Against Women and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against WomenSpeaker: Isabelle Solon HelalCanada has been a leader in women's human rights in the international human rights arena for several years. Indeed, Canada backed the campaign at the 1993 United Nations World Conference on Human Rights that led to the recognition that women's rights are an inalienable, integral and indivisible part of universal human rights in the Vienna Declaration and Programme of Action. The Vienna Declaration urged the UN General Assembly to adopt a draft declaration on violence against women and encouraged the UN Commission for Human Rights to appoint a special rapporteur on violence against women. In accordance with the Vienna Declaration, the General Assembly adopted the Declaration on the Elimination of Violence Against Women by consensus on December 20, 1993 (resolution A/48/104). In 1994, the UN Economic and Social Council (decision 1994/45) endorsed the Canada-led resolution of the UN Human Rights Commission (resolution 1994/45) to appoint the Special Rapporteur on Violence against Women, Its Causes and Its Consequences. To this day, Canada continues to provide leadership on this important resolution. More recently, in October 2000, Canada sat on the Security Council when it unanimously adopted Council Resolution 1325, which has been heralded internationally as a far-reaching and substantive document. Resolution 1325 sets out a comprehensive agenda on women, peace and security issues, including the full participation of women in peace processes and peace building. However, from a regional perspective the participation of Canada in the Organization of American States (OAS) has been weak. In this regard, Canada joins the United States, as being one of the few American States not to have signed the American Convention on Human Rights (1969); the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, also known as the San Salvador Protocol (1988); and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (1994). The latter convention, also referred to as the Belem do Para Convention, is the only international treaty to specifically address the issue of violence against women. The presentation looked at the only two international instruments that specifically address violence against women: the United Nations Declaration on the Elimination of Violence Against Women and the Convention of Belem do Para. These instruments have been used both at the national, regional and international levels. Belem do Para, as a convention, offers extensive strategies and enforcement mechanisms that go beyond the realm of those offered by the UN Declaration. The strength of Belem do Para can be enhanced by creatively combining it with norms contained in other instruments of the Inter-American Human Rights system. For Canadians, the challenge will be to examine how these norms and mechanisms can be used to secure, and perhaps go beyond, the rights and guarantees contained in the Charter of Rights and Freedoms and in Canadian law more generally. Beyond this, I believe that Canada could participate richly in the Inter-American system by engaging in a process of interaction and the construction of shared expectations across borders. From inside Canada, we can join with those outside in efforts to ensure that states are truly accountable to women's human rights norms in the Americas. Isabelle Solon Helal has been working as a lawyer for the Programme droits des femmes at Droits et Démocratie since 1997. |
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Test-Case Litigation, Social and Economic Rights, and the American Convention on Human Rights: What Difference can it Make?Speaker: Reem BahdiIn the Fall of 2001, the Supreme Court of Canada heard Louise Gosselin's Charter claim to an adequate level of social assistance (Gosselin v. The Attorney General of Québec, 27418, decision reserved). Gosselin raises important questions regarding whether states have a positive duty to provide social and economic rights and whether these rights are justifiable. In turning down Louise Gosselin's claim to social assistance, the Quebec Court of Appeal noted, "these are issues upon which elections are won and lost" ([1999] J. Q. no 1365 (Que. C. A.). The Court of Appeal's decision reflects the long-standing position of most governments in Canada, namely, that social and economic rights are best left to legislatures. (For more information on the Gosselin case, see Jurisfemme, Volume 20, no 4 - Spring/Summer 2001, online at http://www.nawl.ca/v20-no4.htm. As a member of the Organization of American States (OAS), Canada is bound by the OAS Charter and the Declaration on the Rights and Duties of Man. However, Canada has not ratified other human rights treaties relevant to the Americas. This is unfortunate because the Inter-American system recognizes that governments have a duty to protect and secure social and economic rights for those living within their jurisdiction, and that these rights are enforceable by courts. One of the most pressing questions for advocates is how the social and economic norms recognized within the American system can be creatively harnessed. In particular, how can they be used to persuade Canadian judges that governments have a positive obligation to provide social and economic rights, and that courts can enforce these rights where governments fail to act? Can advocates appeal to unratified as well as ratified treaties? If so, how? An analysis of the rationales invoked by judges who have used international human rights law in their decisions indicates that international law influences judicial decision-making in five interdependent yet discrete ways. Each of these rationales says something about the ways in which norms from the Inter-American system can be woven into domestic advocacy and how these norms work as instruments of persuasion. The following five rationales are invoked by judges to justify their reliance on international norms.
At the same time that we turn to the Inter-American system to promote social and economic rights, we must acknowledge that neither domestic nor international human rights law maintains an exclusive hold on progressive human rights norms. The challenges for human rights advocates and scholars in the era of globalization extend beyond understanding the creative advocacy potential available through international human rights norms. We must develop a set of principles that frames the relationship between the national and international in a way that secures the progressive development of social and economic rights. The principle of non-retrogression represents the starting point. The principle of non-retrogression is a principle of international law that holds that a rights claimant is entitled to the rights regime that affords the highest level of available protection. This principle is included as a specific clause in numerous international conventions including the American Convention on Human Rights. One of the primary objectives of human rights advocacy should be to entrench the principle of non-retrogression as a general principle applicable to all human rights adjudication. Reem Bahdi is director of the Women's Human Rights Resources at the University of Toronto and the Equality Advisor of the Canadian Bar Association. She is Vice Chair of CultureLink Settlement Services and a member of the Board of Directors of The Ontario Council of Agencies Serving Immigrants (OCASI) and the Near East Cultural Education Foundation. |
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World Conference Against Racism: New Obligations to Remedy RacismSpeaker: Dr. Liz PhiliposeThis presentation was a series of reflections on my participation in the World Conference Against Racism (WCAR) non-governmental organization process, and what I thought the valuable outcomes were. The title, "new obligations to remedy racism" should prompt one to wonder who is obligated, and what remedies to racism would look like. I suggested that, more significant than what governments do in the world conference process to remedy racism, is what social movements and activist communities did together in our efforts to rethink our communities. As we saw through the WCAR process, the states will not offer remedies for racism. For this reason, public discussions on racism and intersecting oppressions are crucial. We need to continuously learn analytic strategies to understand how racism structures our communities, feminist and otherwise, and how we ourselves negotiate our own race and nation investments. Race is a highly volatile topic because it is personal, it speaks to our emotional commitments, and it structures our relations of power and privilege. Race is one of the bases on which brutalities are enacted, and there is nowhere and no one immune from racism. The important work of advocating on behalf of aggrieved populations, while not necessarily exclusive, is also not necessarily the same as an analysis of the structures of racism and the lens of race through which we see each other. It is also crucial that we be creatively imaginative in public discussions about race because, as Ann Stoler says, race as a discourse vacillates, it operates at different levels, it moves between different political projects, and it seizes upon different elements of earlier discourses, reworking them for new political ends. For instance, we do not live in the Euro-colonized world of 1890, but in a country that continues to colonize Indigenous peoples. We live the realities of colonial structures through the local and global distribution of rewards and deprivations, through economic globalization, migration patterns, the feminization of migration, and contemporary forms of slavery such as guest worker and live-in caregiver programs. We live in a world in which privilege within Canada translates into the dispossession of racialized women both in Canada and elsewhere--a pattern that is at least as old as European colonialism. Law is more than a series of protections and prohibitions. Law embodies a subjectivity that speaks of a community; of whom we think we are, of who belongs and who is excluded. In speaking to and through law, our sense of community as activists and our sense of social movements have to expand beyond the narrow parameters of our race and nation investments if we are to shift the euro-centric/colonial subjectivity of international law as it stands. And so, we need to ask: is this the kind of community to which I wish to belong? Is this the kind of community that we characterize as ethical? It occurred to me that the obligations do not solely rest with the states and governments. To remedy racism means to transform the structures in which we live. As Frantz Fanon says: "the proof of success will be to transform structures from top to bottom." The WCAR process was understandably controversial with such issues as reparations for the Atlantic Slave Trade and the Israeli occupation on the table. Precisely because of these controversies, the WCAR process is crucial to promoting possibilities of transforming the racial/colonial consciousness that pervades our sensibilities, and for rethinking the kinds of communities to which we wish to belong. Liz Philipose is professor of Women's Studies at California State University, Long Beach. Her research is in international human rights and humanitarian law and critical social movements. |
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Confidential Records and Sexual Assault Complainants post-Mills: Still Vulnerable?Speaker: Lise GotellDuring the 1990s, the scope of access to complainant's confidential records was radically widened in a series of decisions of the Supreme Court of Canada that relied upon an almost inviolable interpretation of the right to a fair trial (R. v. Osolin, [1993] 4 S.C.R. 595; L.L.A. v. A.B., [1995] 4 S.C.R. 536; R. v. O'Connor, [1995] 4 S.C.R. 411; R.v.Carosella, [1997] 1 S.C.R. 80). This liberalized disclosure regime made Canada unique in comparative terms, allowing for almost routine legally sanctioned intrusions into the extra-legal domains where complainants have chosen to tell their stories of assault. As several analysts have demonstrated (Gotell 2001; Busby, 2000; Aboriginal Women's Council et al., 1995), liberalized disclosure increased the vulnerability and decreased the protections afforded to those with mental health histories and to those who had been extensively documented by state agencies, including aboriginal women, women living in poverty and women with disabilities. Bill C-46, passed by the federal government in 1997, sought to restrict access to private records and to affirm the equality and privacy rights of complainants. Yet the ink on this legislation was barely dry before a series of controversial lower court decisions struck down the bill, finding that it violated defendants' legal rights. The issue of disclosure was thrust back to the Supreme Court in R. v. Mills ([1999] 3 S.C.R. 668). Some Canadian feminists have hailed the resulting decision as a victory because it upheld the statutory test for disclosure set out in Bill C-46. However, careful analysis of Mills reveals its ambiguity. While the effect of the Court's decision in Mills is to require the defence to establish an evidentiary foundation to ground any assertion of the likely relevance of confidential records, the decision also privileges defendant's rights and emphasizes the importance of judicial discretion in decisions about access to complainant's records. The workshop explored issues involved in access to complainants' records post-Mills in 15 trial and appeal level decisions on records disclosure and production since December 1999. The analysis revealed:
Overall, the findings of this study suggest that complainants are still vulnerable post-Mills. Resisting disclosure remains a crucial site in the struggle against coercive sexuality. At issue is our very ability to speak about and understand sexual violation outside the narrow confines of legal discourse. A more complete analysis of these cases will be available on my Web site: http://www.arts.ualberta.ca/~gotell. Lise Gotell is an associate professor of Women's Studies at the University of Alberta. |
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"Bridging Visions" of Law and Art for Women, the Family and the Stateby cj fleuryAn exhibition of visual, sculptural, sonic and performance art by artists: Audrey Churgin, Dawn Dale, Ngoc Tuyen Dang, Kathy Gillis, Gayle Kells, Douglas Samuel, Cindy Stelmackowich and cj fleury who collaborated with members of the law community: Elizabeth Sheehy, Elizabeth Pickett, Kimberley Lewis, Joanne St.Lewis, Rosemary Cairns Way, Llana Nackonechny, Bonnie Diamond, Kay Marshall, Ghislaine Sirois and saxphonist Melissa Pipe. The programming of a contemporary art exhibit linking feminist visions of law and art within the context of NAWL's conference was seen by many as a daring and innovative move by Ottawa's Public Art Programme. The first group show in the city's new public gallery was also an exciting risk for the NAWL Conference planning committees and the eight participating artists, including myself. The pieces in the exhibit corresponded with eight legal quotes. Bringing the law community's text based vision to the gallery walls, these quotes also functioned as connectors, or points of entry, to the symbolic production of the artists. The launch of Template #2: Bridging Visions, after the conference's opening remarks, was special and new for everyone present. Bridging Visions is a component of an ongoing Templates for Activism project sponsored by the Canadian Research Institute for the Advancement of Women (CRIAW). On the opening night of the conference, as well as during the seven-week run of the show, the wider arts community and general public gained an introduction to the 'concept' of law from a feminist perspective. Good press coverage, the gallery's ideal downtown City Hall location, and its long hours contributed to remarkably high viewer traffic. The gallery's comment book swelled with strong feedback about this interdisciplinary venture. Many wrote how the exhibition felt so "right" to them, emphasizing the intensity of the subject matter, or the meeting of difficult issues through art, as good, highly thought provoking experiences. Conference attendees responded positively to the show and the participation of the artists in conference sessions. These were seen as significant and valuable additions to the NAWL event, bringing diverse people from different backgrounds to the discussion of law and social activism. Several comments suggested that the art provided a sense of seeing and feeling about law that was different from the usual intellectualized viewpoint. There was keen interest in knowing more about how ideas related to women and the law could be expressed through art's language. Although they expressed a desire for more time to have realized the project, participating artists found the research, preparation, exhibition and conference phases highly enriching. The growing awareness of the feminist legal community and its work stretched the artists' perceptions about the law and its relation to public and private spheres of their own lives and their individual artistic practices. Artists' responses to conference presentations ranged from compassion or distress over the immensity and complexity of the struggles to strong feelings of stimulation and encouragement to bring this experience into their future art and educational work. Other artists from Ontario, Quebec, BC and the UK have begun to communicate their ideas and interest in the ongoing Templates for Activism project. Using contemporary art and developing co-creative models with activists and legal practitioners to express feminist visions of law has been an incredibly interesting journey with brilliant thinkers, whose work I truly respect and endeavour to support. Thanks to NAWL for this opportunity to extend the dialogue through your conference. Stay tuned for the Templates Web site. Support from CRIAW, Ontario Arts Council, Canada Council for the Arts, and the City of Ottawa is gratefully acknowledged. cj creates through drawing, shields, performance, public sculpture commissions and community projects. Her artwork is in many collections including the Canada Council Art Bank. HATS OFF TO CLAIRE L'HEUREUX- DUBEBy: Bonnie DiamondOn International Women's Day (March 8th), at the NAWL conference, over 300 equality activists came together to say "Hats Off" and "Thank You" to Madame Justice Claire L'Heureux-Dubé, of the Supreme Court of Canada, for her contributions to the advancement of equality. This honour was in anticipation of the announcement of her retirement from the Court in the summer of 2002: she reaches the official judicial retirement age of 75 this autumn. Throughout the evening, Madame Justice L'Heureux-Dubé demonstrated the grace, commitment and dedication that defines both the woman and her career. She urged us to pause and reflect on ordinary women in daily settings, and she commented on equality gains over her lifetime, acknowledging NAWL's work in helping to secure them. She also reminded us that much work remains for equality seekers. By way of proof, she indicated that 19 per cent of adult women are poor, the highest rate of poverty since the 1970s, and she highlighted such problems as trafficking in women, unequal access to health care, gender-targeted violence, and gender-based disparate treatment of refugees. Martha Jackman, law professor at Ottawa University and longtime supporter of NAWL, hosted the evening's program. Nathalie DesRosier, president of the Law Commission of Canada and Constance Backhouse, law professor and Director of the Human Rights Centre, University of Ottawa, gave tributes to Madame Justice L'Heureux-Dubé. Lori Pope, on behalf of NAWL, presented the Justice with an antique portrait of Nellie McClung containing an inscription of Nellie's own words: "Never retreat; never explain; never apologize; get the thing done and let them howl." No words could better describe the courage demonstrated by Madame Justice Claire L'Heureux-Dubé. Ottawa social justice activist, Joan Gullen, and Ottawa playwright and anti-poverty activist, Dorothy O'Connell, wrote and presented a skit entitled "McClung's Dream" which portrayed a chastening visit by the ghost of Nellie McClung to her sleeping grandson, now a retired Alberta Court of Appeal Justice, John McClung. The performance was very entertaining, and also revealed the errors in law and the sexist myths and stereotypes inherent in Justice McClung's decision in Ewanchuk (2000), 91 Alta. L.R. (3d) 221 (C.A.), errors that the Supreme Court of Canada highlighted when it overturned the decision ([1999] 1 S.C.R. 330), much to the chagrin of Justice McClung. The evening was a significant fundraiser for NAWL and thanks are owed to the following members of the volunteer Organizing Committee: Naylor Ashley, Constance Backhouse, Sharmila Biswas-Mistry, Wendy Byrne, Brenda Cameron Couch, Melissa.Coleman, Bonnie Diamond, Joan Gullen, Marilyn Lister, Sara Neamtz, Dorothy O'Connell and Jane Shakespeare Horner. A special thanks to Pam Mayhew, for her support in ticket sales and finance, to Kathleen Stephenson for her photography, and to Michael Cullen for his assistance with mailing lists. [Five photos included in this article] |
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NATIONAL ASSOCIATION OF WOMEN AND THE LAW CONFERENCE 2002 RESOLUTIONSTUITION INCREASES:BE IT RESOLVED that the National Association of Women and the Law strongly opposes the tuition increase approved by the Faculty Council of the Faculty of Law at the University of Toronto, to $22,000 over 5 years. NAWL recognizes that high tuition has a disparate impact on women's ability to access legal education and the profession, in particular on women from disadvantaged groups. NAWL calls upon the Canadian Bar Association and its provincial counterpart, provincial law societies and their members, to condemn and take action against law school tuition increases which are a form of privatization of legal education and have a discriminatory impact. NAWL calls upon federal and provincial governments to stop cuts to university funding and significantly re-invest in post-secondary education. NAWL calls upon law schools in Canada to suspend further increases in view of their disparate impact. CARRIED INUIT AND MÉTIS WOMENBE IT RESOLVED that NAWL lobby the Government of Canada to fully recognize, fund, contract and negotiate with Pauktuutit (Inuit Women's Association) and the Métis National Council of Women as official and autonomous organizations representing Inuit and Métis women in Canada. CARRIED CHILD CUSTODY AND ACCESS:BE IT RESOLVED that NAWL coordinate a national initiative to link provincial and territorial women's groups and networks in a national strategy to respond to the Divorce Act and Family Law Reforms on Child Custody and Access. CARRIED DURBAN PLUS 5BE IT RESOLVED that NAWL join other NGOs in pressuring the Government of Canada to implement the Declaration and Program of Action from the World Conference Against Racism. CARRIED BE IT RESOLVED that NAWL pressure the Government of Canada to support a Durban Plus 5 conference in 2006. CARRIED MIGRANT WORKERS:BE IT RESOLVED that NAWL calls upon the Government of Canada to immediately ratify the Convention on the Rights of Migrant Workers and their families. BE IT RESOLVED that NAWL calls upon the Government of Canada to immediately honour the spirit of the Convention and extend all rights and benefits under the Convention to all migrants. RESTORATIVE JUSTICE:BE IT RESOLVED that NAWL strike a working group (in coalition with equality seeking women's organizations) to study the federal/provincial Restorative Justice Initiatives and the implications of the Restorative Justice programs for women, particularly criminalized women, women who have experienced misogynist violence, and Aboriginal women. FURTHER, BE IT RESOLVED that NAWL does not support any implementation of restorative justice programming without prior government consultation with criminalized women, women who have experienced misogynist violence, Aboriginal women and women's equality seeking groups. CARRIED ABORIGINAL WOMEN:BE IT RESOLVED that NAWL, when requested to do so by equality seeking Aboriginal women's organizations, support and where possible collaborate on lobbying governments for full access and participation by Aboriginal women in all consultations, policy development and negotiations in connection with Aboriginal issues. CARRIED KIMBERLY ROGERS:BE IT RESOLVED that NAWL commemorate Kimberly Rogers and all women living in poverty, annually, on a date to be determined in collaboration with other interested groups. NAWL will work together with such groups in communicating information and media efforts about the case. CARRIED LEGAL AID:BE IT RESOLVED that NAWL continue its efforts in lobbying and mobilization around the issue of women's access to legal aid at the federal, provincial and territorial levels. BEST INTERESTS OF THE CHILD TEST:BE IT RESOLVED that NAWL supports an approach to the best interests of the child test which encompasses consideration of the impact of racism on the lives of racialized children. INCOME SECURITY:BE IT RESOLVED that NAWL continue its research and lobbying efforts in relation to national standards for income security and effective mechanisms for their enforcement. QUEBEC CONFERENCE:BE IT RESOLVED that in order to further develop and strengthen ties with Quebec feminist organizations, NAWL will facilitate a workshop or conference in Montreal in advance of the next Biennial Conference. ACCESS TO JUSTICE:BE IT RESOLVED that NAWL coordinate a national initiative to address the issue of reduced access to justice for all women through cuts to legal aid and women's advocacy groups and increased privatization of dispute resolution. LEGAL AID:BE IT RESOLVED that NAWL contact the Premier of British Columbia to strongly condemn the drastic cuts to legal aid, specifically in the area of family law, which will disproportionately impact women's access to justice and their equality rights. |
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Meet the BoardThroughout the years, the National Steering Committee has been made up of dynamic women from diverse backgrounds. The new committee is no exception. NAWL is pleased to introduce the 2002-2004 NSC members: Claudine BarabéClaudine Barabé is an attorney and political scientist advocating for the judicial and social rights of unemployed persons, workers, EIC and welfare recipients and traditionally underprivileged groups. Her profession has caused her to focus on social, administrative, labour, federal and constitutional law. She has also appeared as counsel before various courts. She defines herself as a practitioner and a litigant with expertise at the judicial level and in courtroom advocacy for fundamental rights. Kim BrooksKim Brooks has been an active member with the National Association of Women and the Law since she began her law degree at the University of British Columbia in 1994. She has worked with the Vancouver caucus of NAWL in the past, and currently is a member of the National Steering Committee and the fiscal policy-working group, and acts as a trustee on the NAWL trust. Kim began her teaching career at Queen's University Faculty of Law in 2001, where she teaches tax and torts. Her research areas focus on tax law and policy. She does research from law and economics and equality perspectives. Prior to joining Queen's, Kim practiced tax law at a large Bay Street firm (1997 - 2001). As a tax lawyer, she focused on corporate and international tax, and in particular on cross-border investments and transactions. Kim has an LL.B. from the University of British Columbia and an LL.M. from Osgoode Hall. She is also active as a member of the editorial board of the Canadian Journal of Women and the Law, and the Court Challenges Program's Equality Advisory Committee. Janice BrownJanice Brown is a lawyer who lives in Dartmouth, Nova Scotia. She has worked for private law firms, government and the Nova Scotia Court of Appeal. In addition to her law degree, Ms. Brown holds an MA in Public Administration from Carleton University. Prior to attending law school, she worked for a number of years in the field of international development. During that time, her work focused primarily on gender issues in development. In particular, she worked closely with women's organizations in Canada and overseas, developed resource materials and provided training for managers of international development organizations, and coordinated public education initiatives dealing with the role of women in development. She has also worked as a consultant with a number of federal government departments and commissions, including the Canadian International Development Agency and the Royal Commission on New Reproductive Technologies. Over the years, Ms. Brown has been an active volunteer and board member for a variety of non-government organizations, including Oxfam Canada, CUSO, the People's Summit (Halifax, 1995), the Ecology Action Centre and, of course, the Nova Scotia caucus of NAWL. Ms. Brown brings to NAWL a deep commitment to advancing women's equality rights, a sound understanding of the gendered nature of our legal system, and extensive experience working with both government and NGOs. Patricia Doyle BedwellMadame Patricia Doyle-Bedwell est une femme Mi'kmaq, originaire de Bangor (Maine). Elle possède un baccalauréat ès arts (sociologie et anthropologie sociale), ainsi qu'une licence et une maîtrise en droit de l'Université Dalhousie. Elle dirige actuellement le programme de l'année de transition de l'Université Dalhousie et l'Indigenous Black and Mi'kmaq Program à la Faculté de droit de Dalhousie. Patricia a déjà présidé le Nova Scotia Advisory Council on the Status of Women. Elle a eu l'honneur de servir au sein de l'équipe de représentantes des ONG qui se sont rendues défendre les droits internationaux des femmes aux Nations Unies, à Genève. Patricia a également participé, en mai 2000, à la Tournée d'étude canadienne de la Gouverneure générale, ce qui l'a amenée à parcourir les Territoires du Nord-Ouest. Sa thèse de maîtrise portait sur la politique d'éducation des Mi'kmaq et sur la compensation due aux personnes ayant survécu aux écoles résidentielles. Ses domaines d'intérêt comprennent les femmes Autochtones et les questions environnementales, dans les dossiers de l'autodétermination et des revendications territoriales. Patricia est mariée et a un fils. Marlène Dubuisson Balthazar |
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JURISFEMMEVolume 21, No 2 Summer 2002 Jurisfemme is a publication of the 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
Publication Co-ordinator Sharmila Biswas-Mistry NAWL Staff and National Steering Committee National Steering Committee Regional Representatives |
