Jurisfemme
Volume 19, No. 2 Winter 2000
ISSN 0835-0892

In this issue:

The Importance of Respecting the Substantive Equality Rights of Lesbians

Donating Stocks to The NAWL Trust

25th Anniversary Profile:  Carole Curtis

New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] S.C.J. No. 47 (QL) - Case comment

CHRA Review Panel About to Submit Report

Speaking your mother tongue: language as a women’s issue

Budget 2000: Entering a New Millennium?

The NAWL Alternative

Protecting Women's Equality Rights: Refugee Determination

News from the Nova Scotia Caucus: The Frances Fish Award for Women Lawyers

NAWL share communications skills with women in China

JURISFEMME

The Importance of Respecting the Substantive Equality Rights of Lesbians
 NAWL’s presentation to the Standing Committee on Justice and Human Rights,
Bill C-23
by Andrée Côté

Lesbians are women who, simply by the fact that we love and live with other women, sometimes experience a heavy burden of prejudice, disrespect and violence. Coming out at any time makes a lesbian vulnerable. Silence and invisibility is often the only viable strategy, yet it carries a heavy toll and places us in a position of constant vulnerability.  

Lesbians share specific experiences with women, as women: diminished social and economic status, sexist wage discrimination, a division of labour along sexist lines, the brunt of racism and the edge of poverty. Lesbian sexuality is systematically represented in the pornographic form, lesbians get raped, sexually harassed in the workplace, fired when pregnant and are dependant on child support. But the fact that we are lesbians may make us more vulnerable to different forms of discrimination. Sometimes, paradoxically, this may help us to confront it.
We are women who have stepped outside the bounds assigned to our gender. And yet we fall in love, commit to relationships, create families and sometimes have kids together. Lesbians yearn to be recognized, and to have our individual and collective realities honoured and respected. In this, we aspire to universal claims to dignity and freedom. Bill C-23 is a symbolic step in that direction. 

Bill C-23  purports to establish formal equality for gay and lesbian couples. While we do not discount the value of formal equality, this Bill is incomplete and fails to live up to its own promise in this regard. Indeed, it maintains the ongoing ban on lesbian and gay marriage, despite the fact that the Supreme Court has stated that governments must respect the equality of same-sex spouses.

We are concerned that this Bill will negatively impact the substantive equality rights of lesbians. However, NAWL has not had the opportunity to conduct an in-depth study of this aspect of Bill C-23, given the expeditious nature of the process relating to its passage. Nevertheless, we wish to draw your attention to the following problems.  

We are concerned about the omissions in the recognition of equality rights of lesbians in family law. For example, the federal, provincial and territorial governments have apparently failed to co-ordinate on necessary reforms in the area of adoption, custody and access, the fair division of property rights and matrimonial assets.

NAWL fears that the changes to the definition of spouse in the Income Tax Act will result in a tax grab for the government. Although some lesbians will pay less tax, many will pay more and this will result in an overall benefit to the government. In particular, those in relationships where both partners have relatively low incomes will lose the most.  Entitlement to the GST tax credit and the Child Tax Benefit is based on joint family income and as the income of the couple increases, entitlement to either of these tax credits diminishes and disappears. This will mean loss of the GST tax credit for many of those with low incomes who are currently receiving the credit as individuals. The most negative impact will be experienced by lesbians, because women tend to earn less than men do.

Lesbians couples in which one partner is economically dependent on the other will benefit from being included as common law partners because they will have access to the spousal tax credit and be able to transfer unused tax credits to their partners. However, we are concerned that this Bill will in effect force some lesbians to live within a patriarchal family model that is predicated on one partner executing most of the unpaid labour in the family and thus becoming a “dependant”. Because of government cuts to public services, there have been more and more demands on the unpaid labour traditionally done by women in the family. Lesbian families have to deal with these same pressures, and they will now have fiscal incentives as well as legal imperatives to structure themselves like traditional families. This traditional division of labour has not been beneficial to wives, often limiting their economic freedom, and increasing their social isolation and vulnerability to spousal violence. Will lesbians ultimately benefit from this model?

In the present context, the state is relying more heavily on the family and on the spouse to provide basic economic security and social services, and recent Supreme Court decisions in the area of family law have been expanding the scope of the spousal support obligations after divorce (Moge, Bracklow.). This Bill will therefore thrust lesbians into a system where they will have to start suing each other for support and compensation. What interests do lesbians have in relinquishing their claim against the state and relying primarily on their spouse and their families? This question is indeed of concern to all women.

Experience has shown that forcing women to rely on their spouses and ex-spouses for their basic economic and social well being is not an avenue of empowerment and equality and it makes us more vulnerable to abuse of power and spousal violence. This approach also guarantees class and race inequalities and posits that each woman's right to have her needs met will be determined by the means, situation and, to a large extent, good-will of her ex-husband. Forcing women to depend on their spouses for their basic economic security places us in a position where our human rights entitlements are subject to individual capacity and whim.

NAWL believes that we need to collectively reassess the economic role of marriage in Canadian society, in light of Charter and international human rights law obligations to universally accessible and publicly funded social security programs.

The Supreme Court of Canada has clearly stated that government action must not limit itself to formal equality: law and policy must be tailored to take into consideration their impact on the substantive equality rights of disadvantaged groups that are protected by section 15 of the Charter.  We are concerned that this Bill may not ultimately achieve this objective. 

NAWL recommends that, at the very least, a preamble be drafted for this Bill, on the model of the preambles to Bills C-49 and C-46, acknowledging past and ongoing discrimination against lesbians and women, and clearly stating government’s intention to achieve the effective protection of lesbians’ substantive equality rights.

We also recommend that an opting out provision be added to the Bill, sufficiently tailored to allow for lesbian autonomy and choice vis-à-vis the heterosexual model of the family.

Finally, should this Bill be adopted in the absence of a full and complete analysis of its impact on the substantive equality rights of lesbians, NAWL recommends that a provision be added obligating the government to evaluate the Bill's impact within five years.

Andrée Côté is  NAWL’s Director of Legislation and Law Reform

Reproduction of articles from this site is permitted, provided that the source is cited.

Donating Stocks to The NAWL Trust

The scope of charitable giving can be much broader than simply giving a sum of money to the NAWL Charitable Trust for Research and Education.   One opportunity to give is through donating property  rather than cash.   Such a gift is called a gift in kind and is for tax purposes normally valued at its fair market value at the time it is made, in order to determine the tax credit generated by your gift.   You are deemed to have disposed of the property at the time of giving - meaning that you must recognize any capital gain or income that would apply had you sold the property for that price.  

But changes in the last few years have made charitable giving of securities more attractive to philanthropically minded investors. In particular, the new tax rule reduces the amount of the capital gain resulting from the disposition of a gifted security from 75% to 37.5%. 

This rule applies only to a direct gift of specific publicly traded securities. If you were to sell the security and then make a cash donation, the normal capital gains of 75% would have to be reported on the sale.  

You can receive a total tax credit (federal and provincial combined) worth about 50% of the donation in most cases. As always, talk to a tax professional or your financial advisor to see if this strategy of giving to the NAWL Charitable Trust and receiving an attractive tax credit is right for you.

Geri Moss-Norbury (MA Legal Studies) is a member of NAWL and a Financial Consultant at Wood Gundy Private Client Investments in Ottawa. She can be reached at (613) 783-7870.  Her views do not necessarily reflect those of CIBC World Markets Inc.  This article is for information for investors only; specific advice should be obtained from your tax professional or financial advisor.

Reproduction of articles from this site is permitted, provided that the source is cited.

25th Anniversary Profile:  Carole Curtis
By Ariella Hostetter

Carole Curtis decided to become a lawyer in the early seventies during her undergraduate studies when she saw the boozy  jocks she hung around with get into law school so easily.  So, why not?  

The why not  turned itself into a career in family law and, rather than joining the jocks, she’s dedicated herself to defending the legal rights of women and children; always keeping  in mind her father’s advice that she could be and do whatever she wanted ....... provided she was willing to take the consequences. Carole now gets in your face, uses her righteous indignation and lets you know that it’s not the end, all for the benefit of women. 

As a bencher of the Law Society of Upper Canada since 1991, she’s used her position to support positive change for women  in Ontario family law. In her seven year role as architect of Ontario’s new family law rules, she has won the respect of both her friends and sparring partners in the Law Society.   

At the end of the day Carole doesn’t shut the door on the assaulted and abandoned  women and sexually abused children whom she sees every day in her independent law practice. She continues to lobby on their behalf.
To help bring about the legislative change necessary to help women and children, Carole gives her time and expertise to the National Association of Women and the Law and speaks out publicly on NAWL’s behalf.  As with so many of NAWL’s dedicated members, the organization had a hand in shaping her early experiences as a law student at the University of Windsor.

“There were few feminist lawyers way back then,” says Carole. The few women who took up the cause attracted a lot of adverse attention. “I had  women friends in other law schools, at the time, and that helped.”  So did her association with a truly fledgling NAWL.  Yes, she did attend the founding meeting in Windsor and the conference in Winnipeg in 1974. Like most students she was flat broke and made it to the Winnipeg conference on a  scholarship. Since then she hasn’t looked back on her commitment to women’s issues.

It hasn’t been easy. As Carole says, "Despite my high energy level and commitment, I’ve had to make difficult choices to do what I wanted to do. My advice to young women entering the profession?  Have the confidence to define your own measures for success." 

To Carole, all of us at NAWL can only say ... thank you.

Reproduction of articles from this site is permitted, provided that the source is cited.

Thanks in part to the efforts of the interveners  NAWL, LEAF and the Disabled Womens’ Network of Canada, the Supreme Court of Canada has recognized a limited right to state-funded counsel in child protection cases, depending on the seriousness of the interests at stake, the complexity of the proceedings and the capacities of the appellant.

Chief Justice Lamer (as he then was), writing for the majority, found that failing to provide state-funded counsel to a parent in a highly complex child protection hearing amounted to a breach of the appellant’s right to security of the person under section 7 of the Charter.  That breach was not saved by s. 1 of the Charter, as the Court found that the “deleterious effects of the policy far outweighed the salutory effects of any potential budgetary savings.”

The majority did not address the issue of whether the appellant’s right to liberty was also engaged in this case. Madame Justice L’Heureux-Dubé, in a separate concurring judgment, found that the liberty interest of the appellant was also breached by the failure to provide state-funded counsel. She accepted the analysis advanced by Carol Curtis and Anne Dugas-Horsman who represented NAWL, LEAF and the Disabled Women’s Network Canada, that child protection proceedings raise issues of gender equality, because women and especially single mothers are disproportionately and particularly affected by these proceedings.  Issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, Aboriginal people and people with disabilities.

In light of this, Madam Justice L’Heureux-Dubé held that when considering the section 7 rights at issue and the principles of fundamental justice that apply, it is “important to ensure that the analysis takes into account the principles and purposes of the equality guarantee in promoting the equal benefit of the law and ensuring that the law responds to the needs of those disadvantaged individuals and groups whose protection is at the heart of s. 15.  The rights in s. 7 must be interpreted through the lens of ss. 15 and 28, to recognize the importance of ensuring that our interpretation of the Constitution responds to the realities and needs of all members of society.”

From a practical standpoint, and as a practitioner who works in the area of child protection, it is difficult to conceive of a contested child protection hearing that is not complex or that does not have extremely serious interests at stake.  And, as recognized by L’Heureux-Dubé J., requiring a parent to prove that she lacks the capacity to represent herself can be seen as counter-productive to that parent’s case at best.  Hopefully, judges will take a common sense approach to these criterion and order that state-funded counsel be provided in most if not all contested child protection matters, if a parent does not have the ability to retain counsel and the provincial Legal Aid scheme does not cover it .

The case is important for those of us representing parents in the child protection field, as it is a recognition by the Supreme Court of Canada of the fundamental rights and freedoms affected in these proceedings and the entitlement of often overwhelmingly disadvantaged parents not to be deprived of these rights except in accordance with the principles of fundamental justice.  In Ontario at least, with the upcoming passage of the amendments to the Child and Family Services Act granting even more power to Children’s Aid Societies to apprehend children and obtain orders finding them in need of protection, the importance of this recognition cannot be underestimated.

Jane Anweiler is a member of NAWL’s National Steering Committee

Reproduction of articles from this site is permitted, provided that the source is cited.

After a year of work, the Canadian Human Rights Act (CHRA) Review Panel, headed by former Supreme Court Judge Gérald Laforest, is about to submit its report to the Minister of Justice.

Working in coalition with Action travail des femmes and the Table féministe francophone de concertation provinciale de l’Ontario, NAWL played a role in the cross-Canada consultation process. NAWL also submitted a comprehensive brief to the Panel.

The NAWL brief addresses issues of procedure, such as speedier complaint processing and guaranteed access to the Canada Human Rights Tribunal, as well as substantive changes to the Act. Currently the Canadian Human Rights Commission’s marked reluctance to adjudicate complaints results in a process that is often long and drawn out. Delays and the complexity of the process whittle away at complainants’ rightful expectations to obtain a remedy for the violation of their rights.

Drawing on a series of case studies, NAWL’s brief illustrates how the Act itself is in fact a source of discrimination. For example, more than 50 women Fujian Chinese refugee claimants detained by Immigration Officials suffered human rights violations in a B.C. prison. Some were separated from their children who had been placed in foster homes. However, no recourse is available to these women, as the Act states that the Commission may not deal with a complaint unless the “victim” was lawfully present in Canada. 

Discriminatory practices carried out pursuant to the Indian Act are also excluded from the protection of the Act, closing the door on Indian women who might wish to affirm their right to equality within their communities. There is no rationale to justify this denial of justice to Indian women.

Women whose employers are covered by the Employment Equity Act are also afforded less or no protection by the Human Rights Act. For example, even when a complaint of systemic discrimination in the workplace is substantiated before the Canadian Human Rights Tribunal, the Tribunal does not have the power to order the employer to adopt policies designed to ensure that women (or other designated groups) achieve increased representation in the workforce, nor to adopt goals and timetables for achieving that representation. The Act simply does away with these women’s individual human rights.

The Review Panel was mandated to submit a report to the Minister of Justice on April 1, 2000. In the coming months, NAWL will be following the CHRA reform process closely.  A copy of NAWL's brief can be ordered through the national office. 

Rachel Cox is a community organizer with ‘Action travail des femmes” in Montreal, Quebec. She worked with NAWL for the preparation of the Human Rights Brief for the CHRA Review Panel

Reproduction of articles from this site is permitted, provided that the source is cited.

Working in coalition with Action travail des femmes and the Table féministe francophone de concertation provinciale de l’Ontario, NAWL played a role in the cross-Canada consultation process on reform to the Canadian Human Rights Act.   NAWL submitted a comprehensive brief to the Panel, (see article, "CHRA Review Panel About to Submit Report") and also a discussion paper on the question of including language as a prohibited ground of discrimination under the Canadian Human Rights Act. 
Language rights are situated on the border between collective and individual rights, which makes their inclusion as an individual right in the CHRA a complex issue. Any reform of the Act should serve to uphold the rights of people belonging to linguistic minorities, and not the rights of individuals belonging to linguistic majorities who might, for example, want to contest the provisions of the Official Languages Act. 

Language is also closely related to culture, ethnicity and national origin. Increasingly, French or English is no longer the second-most important language spoken in any given geographical area of Canada.

Women have traditionally played a key role in the transmission of language to future generations, as witnessed by the expression “mother tongue”. NAWL’s research reveals that in the international law arena, language rights are increasingly being seen as fundamental human rights. More research and, especially, consultation with Canada’s minority language communities is needed to develop a feminist analysis of how to best articulate the notion of language as a human right in Canadian law.

Rachel Cox is a community organizer with ‘Action travail des femmes” in Montreal, Quebec. She worked with NAWL for the preparation of the Human Rights Brief for the CHRA Review Panel

Reproduction of articles from this site is permitted, provided that the source is cited.

In the fall of 1999 one might have thought that fixing the focus of the 2000 budget would be a battle between advocates pushing for  increased investment in Canada's social programs on one side, and business  lobbyists and  high?income earners pushing for tax cuts on the other side. But the  terrain had dramatically  narrowed by January 2000.  The terrain for budget debate no longer included the question of whether taxes would be cut at the expense of  increased  investment in social programs. Instead, it was dominated by a discussion  of  which taxes would be cut and by how much. 

This shift in debate was foreshadowed by the release of the Finance  Committee's pre?budget recommendations in December 1999.  That document  recommended personal and business tax cuts to be phased in over five years  including: an increase in the basic and spousal exemptions by 15%; a cut  in  the middle tax rate from 26% to 23%; a 15% increase in the thresholds  at which the middle and high?tax rates take effect; an increase in RRSP  contribution limits to $15,500 (from $13,500); a reduction in the taxable  portion of capital gains to 65% from 75%; a reduction in the general  corporate income tax rate by 5%; and the elimination of the 5% individual  surtax on high?income Canadians.  The Finance Committee dismissed any new  spending by the government until Canada's debt is further reduced. 

 Paul Martin's seventh budget was delivered on February 28, 2000.  The tone  set by the Finance Committee in December ? tax cuts at the expense of  increases in social spending ? was reflected in the budget resolutions.   The budget proposes to reduce federal corporate tax rates from 28% to 21%;  lower the capital gains inclusion rate from 75% to 66 2/3%; and eliminate  the surtax on high?income individuals.   

 Despite the fact that the deficit was largely eliminated through  cuts to social programs, new infusions into Canada's social safety network  were  limited.  The Canada Health and Social Transfer, the mechanism the federal  government uses to transfer funds to the provinces for health and  education, will receive an additional supplement of $2.5 billion.  This  limited infusion of funding was provided despite evidence that although  federal taxes increased slightly from 15% to 16% of national income under  the Liberals, program spending has been dramatically cut from 16% to 12%  of  gross domestic product.  In fact, Canada's program spending fell  faster than that of all other G?7 countries (United States, Japan, United  Kingdom, Italy, Germany, and France) between 1992 and 1998 ? falling 8.3% relative to the  gross domestic product.  Federal program spending is now at the lowest  level since 1949?1950.

What was perhaps more surprising about budget 2000 was the absence of  significant measures directed at reducing child poverty.  The Liberal  government has made much of its commitment to Canada's poor children  (generally ignoring the fact that these children have poor parents and  often, poor single?parent mothers).  Although Paul Martin announced  increases to the Canada Child Tax Benefit in the budget, that benefit is  currently clawed back by provincial and territorial governments where the  recipient is not working in recognized, paid employment (with the  exception of Newfoundland and New Brunswick).  Therefore, most families living on  low  incomes will not benefit from this limited spending measure.  
NAWL made several submissions to committees in 1999 dealing with  issues  related to the "children's agenda".  Notably, we addressed the lack of  government commitment to supporting women by working to eliminate the  social deficit created in the wake of the 1995 introduction of the Canada  Health and Social Transfer and the repeal of the Canada Assistance Plan.
Our concerns have not been heard.

1. Stronger social programs and a more progressive tax system that addresses  the growing  gap between the rich and the poor in Canada;

2. Reinstatement and expansion of core funding for women's  equality?seeking organizations;

 3. Increased funding of the Status of Women Canada's Women's Program to $30  million;

4. Allocation of the promised $50 million to grassroots, feminist services  to deal with violence against women;

5. Abolition of the $975 head tax to which new immigrants have been  subjected to for the past 5 years, reinstatement of  funding for immigrant and refugee settlement programs, and commitment to fair and just immigration and refugee policy;

6. Enhancement of funding to: legal aid for family law, immigration and  refugee law, and other non?criminal matters; programs to combat violence  against women, including counselling services, shelters and second stage  and transition housing for women leaving abusive relationships; and  attendant and respite services for people with disabilities and their caregivers;
 
 7. Restoration of funding for health, education and welfare to levels in  place before the 1995 budget cuts with national standards (outside Quebec).  In the case of Medicare, this requires a determined defense of the  standards in the Canada Health Act, and a parallel act to introduce  homecare and pharmacare. In the case of welfare, it means prohibitions  against workfare and the provincial claw back of the Child Tax Benefit  from  those most in need, including single mothers receiving social assistance; 

8. Guarantees that the provinces cannot claw back the Canada Child Tax  Benefit from social assistance payments.  From there, begin to enhance the  actual benefit, by such measures as reinstating the universal family  allowance;

9. Introduction of a National Early Years Education and Care Program, a  child care program with national standards (outside Quebec) which would  provide universal, non?profit, high?quality services to all parents of  pre?school children regardless of the parents' labour force status;

10. Extension and enhancement of parental leave benefits under  Unemployment  Insurance;

11. Repayment of $26 billion the government has borrowed from the UI (EI)  account surplus since 1994; 

12. A publicly?funded training program for the unemployed, including those  on social assistance who want to re?train or upgrade, with special  initiatives for those most disadvantaged in the labour market, including  women, based on national standards (outside Quebec);

13. Increased and adequate funding for the Canadian Human Rights  Commission  to enforce human rights and pay equity claims; 

14. Allocation of 1% of the federal budget to the creation of social,  affordable and subsidized housing as part of a new social housing initiative with national standards (outside Quebec);

15. Stronger public pensions that would assure women's economic well?being  from OAS, GIS and CPP/QPP;

16. Extension of all public benefits and tax?subsidized private benefits  to  gay and lesbian couples; and  

17. Student grants, not loans, and new measures to phase in the  elimination  of the tuition/courses fees that have left too many students with record  levels of debt.  The promise of limited tax cuts for some Canadians provides only marginal relief for Canadian women when achieved at the cost of dramatic cuts to social programs.  Eliminating the fiscal deficit at the expense of the  social deficit is not good enough.  The Liberals should not bask in  tax?cut  glory.  They must be held accountable for the damage done as a result of  the dramatic cuts to social programs in 1995.

NAWL's Working Group on Fiscal Policy

Reproduction of articles from this site is permitted, provided that the source is cited.

Pursuant to the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Canada provides international protection to refugees only if the persecution is "on account of" race, religion, nationality, membership in a particular social group or political opinion...This definition of refugee has been incorporated into Canada's Immigration Act with only minor changes. As a lawyer for refugee claimants, how can I effectively argue that women's persecution comes within the refugee definition when in most states women are disempowered, have no access or influence on the religious hierarchy, are virtually excluded from the political process and do not hold positions of influence and power in social groups?  How can I show that their persecution is "on account of" one of the stated reasons, when they have been expressly excluded from participation in these very groups in their own societies? 

limitations of the human rights approach
Refugee law seeks to protect against violations of "core or fundamental human rights".  These rights are tied closely to those areas where the individual interacts with the state.  The requirement that persecution be "on account of" certain activities, is a clear reflection of this link to public activities.  The rights considered to be "core" human rights, are those where the person's interaction is in the public arena: freedom of expression, freedom to practice organized religion, freedom to change the government, and freedom to organize rallies, form trade unions, carry placards and demonstrate in the streets.  These are universally understood to be public acts, and violations of these rights are often the basis for the recognition of refugee claims.

Human rights activists tie persecution to the deprivation of fundamental human rights, the markers of which are recognized in international instruments.  These include the Universal Declaration of Human Rights, and the International Covenants on Economic, Social and Cultural Rights.  In Canada, the Supreme Court has acknowledged this human rights underpinning for refugee status in the case of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. This analytical framework does not present difficulties when women's activities mirror those of men, where they are persecuted for their participation in the religious, social or political hierarchies and institutions of their societies. But the traditional human rights approach does not protect women who flee extreme spousal abuse, forced abortions and sterilization, female genital mutilation, arranged marriages, or violations of dress and behaviour codes in fundamentalist states. Where women's persecution is predicated upon acts that are private, not public, women remain unprotected.  Women's choices to wear make up, or to dress and behave as they choose, even when they bring the approbation and severe punishment of their society, up to and including death, are not actions regarded as engaging core human rights. 

An Immigration and Refugee board member in Canada summarized the situation in this way: 

Significant numbers of the world population, just like the claimant, who is a woman, have suffered persecution and are routinely subjected to torture, starvation, terrorism, humiliation, mutilation and even murder simply because they are females.  If this group were any other group being maimed and killed, other than women, it would be recognized as a civil and political emergency and a gross violation of their humanity. Yet, here we see despite a clear record of deaths and demonstrable abuse, women's rights are not understood or classified as human rights despite the grave consequences it has on the fundamental issue of women's lives. (Re X. (I.N.), [1992] C.R.D.D. No. 481)

It is estimated by the United Nations that two-thirds of the world's refugees are women and girls, yet the majority of refugees who make their way to Canada are men, and it is their cases that form the basis of our refugee jurisprudence.  Women and children are far more likely to remain in countries of first asylum in the United Nation's refugee camps, than they are to find their way to Canada to seek asylum. Therefore, overall, our refugee jurisprudence does not reflect the experience of women refugees.

cultural and traditional justifications
Culture has been the major justification for the failure to afford refugee protection to women. It has been argued that the social control of women in the private sphere and the control of their dress, behaviour and actions is a cultural practice.  That women should be veiled, must marry whom they are told, are executed for adultery, have no legal right to custody of their children, or that young girls should be subject to female circumcision, is thus beyond the scope of the refugee definition. 

While international human rights instruments recognize a basic code of conduct between governments and their people, they fail to recognize a similar code of conduct between the individuals in a society, even where the state is engaged in enforcing conformity to the conduct, or fails to provide protection from it.  Thus, where the state fails to intervene to provide protection to battered wives, to young girls fleeing female circumcision or a host of other types of non-state action, we fail to recognize the victims as refugees. 

I am sometimes asked, how can we "judge" other cultural practices and traditions?  I am always disturbed by this question, because it ignores the very real struggles of women within their own cultures to bring about change.  While there is ready acceptance of this characterization of women's persecution as "cultural", it is not without significance that culture is not advanced as a justification for other forms of persecution, for instance, where the cultural practices violate the rights of racial or religious minorities. In my experience, it is always those activities that affect women's lives that are labelled as cultural and traditional practices.

Thus, Nada, a Saudi Arabian woman, was denied refugee status in Canada after being persecuted because she refused to wear a veil, and wished to pursue a university education.  Her claim failed because such practices, even where they were enforced by public stoning and arrest by Saudi Arabia's unofficial religious police, were seen to be merely cultural differences.  In rejecting her claim, two male Board members advised Nada that she "would do well to comply with the laws of her homeland .... and to show consideration for the feelings of her father, who opposed the liberalism of his daughter." To proponents of cultural relativity, culture trumps all. 

the gender guidelines
While Nada herself was not recognized as a refugee, her case and the public outcry that ensued prompted the chairwoman of the Canadian Immigration and Refugee Board to issue guidelines in 1995 on Women Refugee Claimants fearing Gender-Related Persecution. The guidelines address four critical issues: the extent to which women fearing gender related persecution can rely on the five enumerated grounds of persecution; when does sexual violence or other forms of prejudicial treatment of women amount to persecution; what evidence is required; and what special problems do women face in advancing their refugee claims. 

Most important however is the official recognition that severe discrimination on the grounds of gender, at the hands of either private citizens or the government, can be considered persecution, and that women who are persecuted for failing to conform to religious, social and cultural practices can also be recognized as refugees.  Hence, officially at least, we have rejected an approach that sanctifies cultural and traditional practices, and adopted one which recognizes private persecution.

Despite the promise of the Gender Guidelines, however, the past four years have shown that they have not lived up to initial expectations.  Unfortunately, the Gender taskforce set up to develop the guidelines and to oversee their implementation has been disbanded, and many Board members choose to ignore the Guidelines in their decisions, even in cases which call out for their application.  

severe spousal abuse
Probably the most difficult cases involve women who flee extreme domestic violence, one of the most widespread human rights violations committed against women.  When women flee this type of violence, coming from countries which are similar to our own, their claims challenge practices and discrimination against women which closely mirror our own practices.  How can spousal assault be a violation of human rights when we have spousal assault in Canada?  We find that the universality of discrimination against women acts as a barrier to the recognition of their individual refugee claims, because they are inevitably judged in reference to Canadian standards.  To recognize women refugees under these circumstances challenges our comfortable notions about Canadian society.  The universality of women's oppression forces us to re-examine our own smug notions about which nations are "refugee-producing", and which are not. 

The pervasiveness of the discrimination against women worldwide challenges this belief.  The sheer size of the group affected militates against the recognition of the individual claimant's persecution. 

towards real protection for women
Instead of trying to characterize an individual woman as a member of a particular social group, or to stretch her less traditional means of political expression into a political act, it would be preferable to recognize outright that women are persecuted because of their gender, simply because they are women. If the refugee definition were to include "on account of gender" as an additional ground, women would no longer have to show that they were persecuted as a member of a social group, or because of some expanded notion of political opinion. 

To provide such protection would constitute a concrete commitment by the international community to many of the United Nation's declarations, treaties and conventions that address gender-based discrimination and the rights of women.  The failure to include gender in the refugee definition in its own right, leaves all of these international commitments without remedial mechanisms, and makes hollow the promise of equality for women.  At the end of the day one cannot help asking the question - why are women's human rights the last to be protected?

Chantal Tie is an Ottawa lawyer who has been preparing and presenting refugee claims for over 20 years.

**On 6 April 2000, the Minister of Citizenship and Immigration, Elinor Caplan, introduced a new Immigration and Refugee Protection Act (Bill C-31). NAWL will study the proposed legislation in view of developing recommendations to ensure that immigrant and refugee women’s equality rights are effectively respected.

News from the Nova Scotia Caucus: The Frances Fish Award for Women Lawyers
 by Chantal Richard

The Nova Scotia caucus of NAWL ("NSAWL") held its second  Frances Fish Women Lawyers' Achievement Awards dinner on October 21, 1999.   The awards dinner honoured Dawn Russell, Dean of Dalhousie Law School, and Anne Derrick, a partner at the law firm Beaton, Derrick & Ring in Halifax, who has been a legal activist for equality issues.   

The Frances Fish Awards were established in 1997 by NSAWL in honour of the first female law graduate from Dalhousie Law School.  The awards are presented to women with a connection to Nova Scotia who have achieved professional excellence and have demonstrated a commitment to the advancement of women's equality in or through the legal profession.  

The 1999 recipients, Anne Derrick and Dawn Russell, were selected for their outstanding accomplishments in the course of their careers.  Anne Derrick is a prominent lawyer and social activist on the local and national scene who has used her legal skills to effect social change and promote the equality of women and minority groups.  Dawn Russell is the first female
Dean of Dalhousie Law School, and in this position has been a trail blazer for women entering and continuing in the profession.   
The keynote address was delivered by the Honourable Constance Glube, Chief Justice of the Nova Scotia Court of Appeal, one of the first recipients of the Frances Fish Awards.
The NSAWL caucus was very pleased to be able to contribute proceeds from the Frances Fish Awards Dinner and silent auction towards the ongoing work of NAWL. 

Chantal Richard is member of NAWL National Steering Committee and a member of Nova Scotia Caucus on Women and the Law

NAWL share communications skills with women in China
by Bonnie Diamond

The National Association of Women and the Law (NAWL), in partnership with the Association of Canadian Community Colleges, Queen's University and the University of Alberta is working on the Canada/China Women's Law Project.  This project is funded by the Canadian International Development Agency (CIDA) to promote women's rights in China through improved awareness and implementation of the 1992 Law on the Protection of the Rights and interests of Women and other relevant laws and regulations.  

NAWL is sharing skills with Chinese women who are working on the public information dissemination component of the project. In January 2000, NAWL's executive Director, Bonnie Diamond, and NAWL Communications Consultant Sylvia Spring travelled to China to conduct workshops with grassroots Chinese women on the information dissemination techniques used by women's groups in Canada.

Bonnie Diamond is NAWL’s Executive Director

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JURISFEMME

Volume 19, No 2 Winter 2000

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