Jurisfemme
Volume 20, no 1 - Winter 2001
ISSN 0835-0892

In this issue:

The Not-So-Mini-Budget

Women's Election Website

The National Women's Lobby Interim Report to Canadian Women, October 15-17, 2000

The Year 2000 Women's March - the TFFCPO was there!

Students' Work with NAWL: Trans. What?

Student Internship at NAWL

Bringing Beijing + 5 Home to Canada

Custody and Access Project in Ontario

On Losing Lesbian Rights

Same-Sex Marriage

The Women's Economic Equality Project

Update on the Pamela Jean George Case

Rape Shield Provisions Upheld

Ten Good Reasons to Oppose Granting Criminal Immunity to Police

Winners of NAWL's Trust 15^th Essay Competition

The Not-So-Mini-Budget

NAWL's Finance Working Group

In the midst of the worst-kept secret in Canada, that an early election call was pending, and in what can only be seen as reaction to regressive proposals for tax cuts proposed by the Canadian Alliance Party, Paul Martin introduced Canada's economic statement and budget update on October 18, 2001. In its particular measures, the mini-budget contained some bad news and some good news for women; however, to the extent that this document might be used as an indication of the direction of the federal government's policy agenda, the mini-budget provides some clear warning signals for gender equality in Canada.

Rates and Brackets

The government tinkered with Canada's tax rates and brackets. The lowest tax rate will drop effective January 1, 2001 from 17% to 16%, and the middle rate will drop from 25% to 22%. An additional tax rate was introduced. Without the changes proposed in the mini-budget, Canadians earning in excess of $61,509 would be taxed on income earned above that level at a rate of 29%. After January 1, 2001, Canadians earning between $61,509 and $100,000 will be taxed at a rate of 26% on that income, and will be taxed at a rate of 29% on income in excess of$100,000. In short, the rates have all been slightly reduced, and the highest tax rate will not until an earner hits the $100,000 income mark.

Prior to the February 2000 Budget, a 5% high-income surtax was imposed on taxpayers with basic federal tax over $12,500. A surtax is a tax imposed on the tax paid by income earners whose basic tax exceeds $12,500. With a top federal marginal tax rate of 29%, the 5% surtax resulted in an increase in the tax rate of high-income earners of approximately 1.5%. The February 2000 Budget announced the elimination of this surtax by 2004. The mini-budget accelerated the removal of the surtax by proposing its elimination effective January 1, 2001.

The following table compares the tax brackets and rates set to apply in January 1, 2001 before and after the tabling of the economic statement and budget update:

*the difference here is the effect of the elimination of the 5% surtax on high-income earners

The mini-budget proposals continue the federal government's reduction in Canada's tax progressivity (although admittedly these changes are relatively minor erosions to the progressivity of Canada's income tax system). Reductions in progressivity, even minor ones, always effect women's equality dramatically because women make up the vast majority of low-income earners.

The elimination of the 5% surtax provides a good example of how reductions in progressivity affect women. Although unfortunately, the available figures don't break down perfectly, in 1996, 1,914,010 men earned income in excess of $50,000 and their taxable income was $143,288,111,000. In contrast, 618,220 women earned income in excess of $50,000 and their taxable income was $39,643,517,000.

What do those figures mean? Basically, women made up a little less than 24% of the highest income earners in Canada, and had a little less than 22% of the income earned by that category of taxpayers. Therefore, of the gains to be obtained by the removal of the high-income surtax, women stand to receive less than a quarter of the taxes saved.

The point that there are fewer high-income women than men who might gain from the elimination of the 5% surtax is a trite one. The more significant point is that the failure to collect those additional taxes will directly affect the amount of revenue that the government has to reinvest in Canada's social programs. The government has predicted that the elimination of the surplus will cost approximately $650 million per year.

Capital Gains Inclusion Rate

The federal government proposes to reduce the capital gains inclusion rate from the 662/3% rate set in the February budget to 50%. The reduction in the capital gains inclusion rate results in a dramatic decrease in the progressivity of Canada's income tax system.

Individuals realize capital gains (to put it simply) when they sell capital property. The most common form of capital property is shares in a company. When shares are sold, the seller is required to pay tax, but only on a portion of that gain. Prior to the 2000 budget, a person who sold capital property was required to include 75% of the gain in their income, and then pay tax at their marginal tax rate on that gain. The February 2000 budget reduced the capital gains inclusion rate from 75% to 66%, and (as noted above) the mini-budget proposes to reduce this inclusion rate further to 50%.

Another way to think about the capital gains inclusion rate is to think of it as an"exclusion" rate. From this vantage point, before the 2000 Budget taxpayers could exclude from tax 25% of any income received from capital gains, after the 2000 Budget they could exclude 33% and after the mini-budget they will be able to exclude a full 50%.

As greater amounts of income in the form of capital gains are generally received by high income earners, this reduction in the inclusion rate for capital gains makes the income tax system significantly less progressive. Again, it is clear from the numbers that men will disproportionately benefit from this change. In 1996, 796,720 men reported taxable capital gains in the amount of $6,593,146,000. In contrast, 707,630 women reported taxable capital gains in the substantially lesser amount of $3,241,021,000. In other words, women earn about half as much income in the form of capital gains as men do.

This reduction will also dramatically affect the revenues the government collects from capital gains. In addition to reducing the amount that will be collected from capital gains realized by persons who already hold capital property, the reduced rate of tax that is applied to capital gains will encourage more high-income earners to invest in instruments that will result in capital gains rather than other forms of income. In other words, as capital gains will now be taxed at a lower rate than dividends or ordinary income, more Canadians will invest in shares, for example, rather than bonds or other income investments. This switch in investment strategy will result in additional erosion to the government's tax revenues.

Support for Caregiving Activities

There was some good news in the mini-budget. The government proposes to provide additional funding to the Canada Child Tax Benefit and National Child Benefit. The federal government proposes to increase the National Child Benefit by $100, to a total of $300 per child. The income level at which the National Child Benefit is phased out has also been raised, and the government proposes to reduce the rate at which the benefit is phased out. Of course, the effectiveness of this transfer will depend on how the provinces claw back the payments made under these programs.

The mini-budget also proposes an increase in the tax credits for persons with severe and prolonged disabilities from $730 to $960, and an increase in the tax credits to caregivers from$406 to $560.

General Trends and the Consultative Process

As noted at the beginning, there was bad news and good news for women on October 18^th. The reduction in the progressivity of Canada's tax system is bad news for women - both because men will largely be the beneficiaries of the governments "largesse" but also because the government will raise less revenue through taxes that can be redistributed through Canada's social programs. Increased spending to support caregiving activities is welcomed, although the effectiveness of spending programs delivered through the tax system should be questioned.

In addition to these general reflections, it is also important to note that the government's decision to introduce a "mini-budget" in October without a consultative process is alarming. Unlike the annual February budget, where the federal government has at least implemented consultative process (however flawed), this October budget afforded no time for consultation and reflection.

NAWL continues to advocate for direct discussions between the Minister of Finance and women's equality-seeking advocates and organizations with expertise in economic policy issues. We also believe that women's equality seeking advocates and organizations would benefit from receiving resources to formulate collective recommendations that could be provided to the government as part of the consultative process.

NAWL's Finance Working Group

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

Women's Election Website

by Bonnie Diamond

During the recent federal election NAWL helped operate a women's bilingual website,"Women's Election -2000 reasons to vote". This site was produced by a coalition of equality seeking women and women's organizations in partnership with Womenspace and the National Association of Women and the Law. The initiative was born out of a discussion of feminists who wanted to provide a space for women to discuss, research and share information about women and the federal election. Neither NAWL nor Womenspace had money to provide the real "bells and whistles" but a number of equality seekers worked tirelessly on a volunteer basis to get the site up and to feed it constantly.

The site included overviews of the issues written by women and women's groups, questions for women to think about and to ask candidates at community all-candidate meetings; a listing of the 13 Demands put to the Government of Canada during the World March of Women with a link to the detailed background document and web site; links to research documents giving in-depth insights into issues and links to the websites of women's and other equality seeking groups; a section on women's human rights identifying Canada's obligations and an assessment of its compliance; the Party Platforms with observations on how they address women's issues; information on elections and voting, including material on voting if you are a person with a disability. In addition, the site was linked to media articles addressing women's issues.

Two companion listserves, in French and English, were also made available which facilitated a lively exchange of views in a women-friendly environment.

This site is still available as a resource to women at <http://canadaelection.net/>

Bonnie Diamond is the Executive Director of the National Association of Women and the Law

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

The National Women's Lobby Interim Report to Canadian Women, October 15-17, 2000

By Nancy Peckford

Ottawa rocked for three days in October, as the National Women's Lobby (the national Canadian campaign that was part of the World March of Women Against Violence and Poverty) met with Members of Parliament, party leaders and federal Cabinet Ministers to discuss the thirteen immediate demands contained in It's Time for Change,the platform for the campaign, and to seek concrete commitments to end poverty and violence against women.

The lobby was divided into three parts: the Ministers' lobby, the MP lobby, and meetings with leaders. Participants also had the chance to watch a debate on a motion regarding the thirteen demands in the House of Commons.

The Ministers' Lobby

Various member organizations of the Canadian Women's March Committee and affiliated groups met with nine Ministers over the course of two days to talk specifically about concrete commitments from the federal government. Meetings averaged an hour and fifteen minutes in length. While none of the Ministers were prepared to fulfill any of the thirteen immediate demands, we certainly made some gains. In our meeting with The Hon. Claudette Bradshaw about her Homelessness Secretariat, we pointed out that women's organizations have not been invited to participate in the Secretariat's consultations. She immediately agreed to correct this problem. In our meeting with Health Minister Allan Rock, we pointed out the severe deficiencies in health care services for women with disabilities and Francophone women outside of Quebec. As a result, Rock agreed to establish working groups to address the specific needs of these two communities.

Some Ministers were prepared to go further than a commitment to consultation. Minister of Justice Anne MacLellan announced a review of the current federal pay equity legislation with an aim to strengthening the obligations of employers to pay women a wage of equal value. Maria Minna, Minister responsible for CIDA, promised an increase in foreign aid, one of the March Committee's demands.

Party Leaders' Lobby

Members of the March Committee also met with the leaders of the Liberal Party, the Bloc Québecois, and NDP. We asked the leaders for specific responses to each of the thirteen demands. Gilles Duceppe of the BQ outlined his party's multi-billion dollar strategy to implement the 13 demands over five years. The Bloc committed a specific response in writing to each of the thirteen demands. NDP leader Alexa McDonough announced that many of the 13 demands would be reflected in her party's election platform.

Unfortunately, Prime Minister Chretien did not exhibit this kind of enthusiasm. He provided no response to the thirteen immediate demands, was not eager to discuss the longer document, It's Time for Change, and failed to demonstrate an understanding of why the fulfilment of these demands was necessary for the well-being of women in Canada. While this was very disappointing, it was nevertheless the first time in many years that a Canadian Prime Minister has met with women's groups. As such, we regard it as a significant moment for the Canadian women's movement.

The March Committee also held a meeting with representatives of the Liberal Women's Caucus, a formal association of primarily female MPs within the federal Liberal party. In this meeting, Liberal MP's and members of our Committee discussed how to further advance the demands contained in It's Time for Change over the next year and to ensure that the eradication of poverty and violence against women becomes a priority of the federal government.

MP Lobby

On Tuesday morning, we held the MP Lobby. Seventy-five women met for a short briefing session before breaking into small groups (between 3 and 8 women) that met with over thirty MP's from almost every province and territory, and from all five mainstream political parties. Sessions lasted anywhere from thirty minutes to an hour. Women asked MP's to respond specifically to the thirteen immediate demands and to speak about their longer-term commitment to ending poverty and violence against women. At noon, women reconvened for a debriefing session during which one woman from each lobby session reported to the group on the outcome. Meetings with MP's had been so fascinating that our debriefing session lasted for two hours! For many women, this was the first time they had lobbied a Member of Parliament, let alone on Parliament Hill, and, as a result, it proved to be a morning rich in insights about their federal representatives and the political process in general. Filled with the excitement of meeting an MP one on one, women vowed to follow up with MP's when they returned home and agreed to encourage other women to do the same. The MP lobby served as an excellent tool in reaffirming the importance of regularly lobbying one's local MP. MP's need to hear women's stories and to be convinced of the importance of promoting women's rights in Parliament.

The National Women's Lobby was a resounding success, both in terms of the numbers of women and women's groups mobilized to lobby, and in terms of the number of MP's we reached. Many women's organizations had the opportunity to meet Ministers for the first time, and were able to discuss the thirteen demands in the context of their own work on women's equality rights. MPs were confronted with an array of enthusiastic, diverse and knowledgeable women from their communities who will be sustaining the political pressure from home. Political leaders were asked to put their money where their mouths are and outline their partys' plans to end poverty and violence against women. These are no small accomplishments. They are a testimony to the political power women can exercise in this country.

Despite this success, the 13 immediate demands have not yet been met, even in the face of a multi-billion dollar surplus. This demonstrates the need to continue to consolidate the power of women's voices into a coherent, comprehensive and broad campaign that reflects the reality of all women's lives in Canada. We hope that the campaign It's Time for Change is the beginning of something larger and more profound. We must as a women's movement continue to work together, locally, provincially and nationally and across and within communities in order to keep the pressure up and ensure that we are heard.\

On behalf of the Canadian Women's March Committee, thank you to all of the women in Canada who made the Canadian Women's March and its lobby campaign so invigorating. The momentum must continue. We look forward to the next round.

Nancy Peckford is the Lobby Coordinator for the Canadian Women's March Committee

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

The Year 2000 Women's March - the TFFCPO was there!

By Ghislaine Sirois

Thirty thousand women marched on Ottawa's Parliament Hill on October 15, 2000, demanding immediate action from the feds to end poverty and violence against women. Among them was a contingent of 240 French-Ontarian women marching behind the banner of the Table féministe francophone de concertation provinciale de l'Ontario (TFFCPO).

The March offered the Table an opportunity to raise awareness on the key issues of poverty and violence. In association with Action ontarienne contre la violence faite aux femmes, they created resource materials on poverty, employment and job-seeking, social security, globalization, mothering, lesbian rights, sexual violence, wife-battering, State violence against women, sponsorship, child custody and municipalities.

The Table also initiated a quilting project, which allowed hundreds of French-Ontarian women to learn, to discuss and to build solidarity in preparation for the March. Quilting squares were received from women throughout the province demanding an end to poverty and violence, freedom of choice, dealing with the pressures on immigrant women by their sponsors, education, hope, and women's spirituality. The squares were assembled by the Union culturelle des Franco-Ontariennes in three large, vibrant and colourful panels.

A pre-March rally brought together French-Ontario women from Cornwall, Kapuskasing, Timmins, Toronto, Thunder Bay, Marathon, Geraldton, Hawkesbury, Hamilton, Welland, Windsor, Ste-Anne de Prescott, Alexandria, Casselman, Green Valley, St-Isidore, Sault-Ste-Marie, Ste-Catharines, Vanier . . . They came to take stock of national and international demands and to put forth their own demands to government on the bases of equality, universality, respect for diversity and Francophone rights.

• on the povertization of women: right to guaranteed income, implementing child care services, improving the labour conditions of currently paid or unpaid home care workers, access to subsidized housing, welfare reform including the abolition of workfare, EI reform, and access to education.
• on violence against women: access to services in French for all women, prevention and public education programs, children's prevention, services to immigrant women, access to justice, reforming the judiciary to improve women's safety, and amending divorce legislation taking into account women's needs and rights.
• on the specific needs of immigrant women: educating service providers and the public about their specific needs, ensuring access to culturally-appropriate services, supporting Francophone immigrant community organizations, improving the labour conditions of houseworkers, ending head tax and administrative fees, ending spousal sponsorship and minimal revenue rules for sponsorship, and improving access to legal aid in family and immigration law cases.
• on national and international solidarity: abolishing the debt of the world's 53 poorest countries, eliminating the trafficking in women and children, environmental protection including refusing to send Toronto's garbage to Kirkland Lake, creating a women's international organization (like the UN) and saying no to FTAA (Free Trade Area of the Americas), decriminalizing sex trade related activities, and raising awareness about discrimination on the basis of sex orientation.

Participants who spoke at the rally supported these demands and the urgent need for state intervention. First-person testimonies included accounts of the dependency created by the sponsorship of immigrant women and of the incredible extent of violence against women: one woman recounted being told by an abuser holding her at gunpoint that she was "too ugly for him to waste a bullet on her." One woman, then two, then three cried among us . . .

A hundred, a thousand, two thousand reasons to march . . . Seeing 30,000 women on Parliament Hill made me wonder if this wasn't a rebirth of feminism. But of course, feminism had never died! Rumours of its demise - on the grounds that women now had everything, or that feminism was about a handful of women disconnected from their peers - had been greatly exaggerated! It was clear from listening to women's demands and hearing their testimonies that equality remains a long way off. But the Women's World March 2000 was an extraordinary moment of national and international solidarity. And it signaled the beginning of a renewal of feminist action, that in its accessibility and inclusiveness, will finally accomplish the changes we all need.

Ghislaine Sirois is the Provincial Coordinator of Action Ontarienne contre la violence faite aux femmes

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

Students' Work with NAWL: Trans. What?

By C.J. Rowe

There have been a number of important test cases recently decided in Canada at the tribunal level concerning transgender human rights, including Ferris v. Office and Technical Employees Union, Local 15, [1999] B.C.H.R.T.D. No. 55; Mamela v. Vancouver Lesbian Connection, [1999] B.C.H.R.T.D. No. 51 (B.C.H.R.T.); Sheridan v. Sanctuary Investments Ltd.[1999] B.C.H.R.T.D. No. 43 (B.C.H.R.T.) These decisions have affirmed the rights of Male-To-Female (MTF) transsexuals to use women's washrooms, to continue to work while transitioning, and to participate in lesbian centres.

The inclusion of transgendered women in women's facilities and organizations strikes at the heart of the feminist movement and has awoken numerous debates within the feminist community. The most recent case, between K. Nixon and the Vancouver Rape Relief Society, is pushing feminists and those working in women's only spaces, such as sexual assault centres, to consider opening the definition of woman to include women who self identify as women.

At NAWL's general meeting in Calgary in May, 2000, the Association adopted the following resolution:

"BE IT RESOLVED THAT NAWL study recommendations regarding human rights protections for transgendered persons with attention to NAWL's commitment to substantive equality rights of women."

Shortly after the conference, Bonnie Diamond and Andrée Côté prepared a funding application to the NAWL Trust Fund in order to get funding for background research on transgenderism and the law. I was hired to compile information, literature, relevant case law, legislative reform, and other legal developments in Canada, the United States and the United Kingdom on the issue.

To date I have assembled an annotated bibliography which consists of the most influential literature on transgender, feminist and postmodernist theories regarding gender issues. It also includes a broad-based internet search and annotated case law from various countries. This research is the first step in educating members of the Lesbian Rights working group on relevant gender and transgender issues and theory.

My task was to compile this information and forward it onto the Lesbian Rights Caucus. We have chosen to start the discussion in this forum because of the lengthy debates that arose during our discussions on Bill C-23, the Modernisation of Benefits and Obligations Act.

The Caucus has just begun our discussion on the human rights of transgendered persons and their relation to the substantive equality rights of women. NAWL has agreed to launch a discussion group among its members and to participate in a national consultation with other organisations. We intend on finding the best way to develop an egalitarian approach to the issue, one that protects and promotes the equality rights and human rights both of women and transgendered persons.

Carolyn J. Rowe is a Master's of Arts student in Legal Studies at Carleton University and is a member of the Lesbian Rights Caucus of NAWL.

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

Student Internship at NAWL

By Nancy Peckford

I came to NAWL rather fortuitously. I had just finished a ten month stint on Parliament Hill as a full time parliamentary intern and was eager to get involved in the community. I also needed some summer work. After meeting NAWL's Executive Director Bonnie Diamond at a local tenant support program in Ottawa, I decided to drop off a resume to NAWL. Shortly after, NAWL invited me to work there as a summer student.

I had two main tasks during the summer. The first was to identify possible sources of funding for further research on the State's retreat from providing health care, child care, income support and other public services. I conducted this search primarily via the internet. While I found quite a few organizations who had a record of financially supporting our approach, many of them are American and cannot fund Canadian research. There are a few international organizations, however, whose mandates include the exploration of the effects of globalization on the role of the State around the world. Given NAWL's strong record and national influence, these organizations are definitely worth pursuing as possible funders.

The remainder of my time was devoted to preparations for the World March of women. Andrée Côté, NAWL's Director of Legislation and Law Reform and our representative on the Canadian Women's March Committee agreed to edit the March Committee's main lobby document, It's Time for Change: Demands to the Federal Government to End Poverty and Violence Against Women. I assisted Andrée in this task by pulling together many of the comments and suggestions which had been submitted by women's organizations across the country in response to the first draft of the document (which had been released in March). Together, we worked to incorporate as many of the suggestions as possible, so that the document truly reflected the diversity of women's lives in Canada. Once this task was done, we worked closely with the drafting committee to produce a final draft in time for the reconvening of Parliament in early September.

Spending my summer at NAWL was an amazing opportunity. A year on Parliament Hill had dulled some of my passion for public policy (the games and antics I had seen used in the House of Commons around matters of public interest were most often discouraging) and I was in great need of inspiration. My feminist sensibilities were reinvigorated at NAWL, an organization solidly rooted in its analysis of women's lives and firmly committed to equality for all women.

I can't imagine having had such a rigorous experience anywhere else, and I leave NAWL with a better sense of myself and a greater understanding of what work needs to be done on behalf of women in Canada - and around the world.

Nancy Peckford was a summer student assisting NAWL in activities related to the Canadian Women's March.

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

Political Parity and the Charter of Rights

by Andrée Côté
Notes prepared for the "Stages of Citizenship " Conference
University of Ottawa, November 2-3, 2000

Women's underrepresentation in politics is a well-known fact. It is a historical phenomenon, which remains characteristic of all modern democratic systems. Currently, only 21% of Canadian MP's are women. This disparity has many causes, but the State clearly must shoulder its share of responsibility.

Indeed, it is by direct legislative action that governments have historically excluded women from the conduct of public affairs, as bear witness the various laws forbidding women to vote during the 19th and 20th century. The judicial system has also played an important role in the political marginalization of women; in 1928, for instance, the Canadian Supreme Court ruled in the Edwards case that women were not persons and could therefore not sit in the Senate.

Thus, the State has positioned itself as an active agent of women's exclusion from the political sphere, and it maintains, to a large extent, this practice. Indeed, the issue of"women" is marginalised in the very structure of government since there is no Department of the Status of Women at the federal level. The funding of women's groups is precarious and very restricted. Women from minority groups receive only minimal amounts from the overall budget envelopes allocated to the entire, mixed minority group, for example Native and French-speaking organizations. Moreover, Parliament refuses to seriously examine the issue of women's political involvement, despite a private bill presented to this effect in November 1999 by Caroline St-Hilaire, MP for the BlocQuébécois (Bill C-290, An Act to Amend the Canada Elections Act).

To raise the issue of women's political parity and its relationship with the Canadian Charter of Rights and Freedoms leads us to question the State's responsibility to prevent, stop and remedy sexual discrimination against women in the political sphere. This issue also raises both the negative legal duties incumbent on the State - not to enact laws that discriminate against women - and the more delicate question of the State's positive obligations to adopt remedial action, designed to transform social reality.

Although the provisions of section 15 of the Charter have been interpreted by the Supreme Court of Canada as prohibiting the adoption of any law, policy or practice whose effect is to exacerbate the inequality of a historically underprivileged group, it is debatable whether the Charter can be used to pressure governments into adopting proactive legislation in order to remedy discrimination against women in the political arena. Indeed, the S.C.C.'s decision in the case of the Native Women's Association of Canada (Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627) does not indicate a substantive judicial awareness of women's political interests.

On the other hand, international human rights law offers a number of statements that may justify a more favourable interpretation of the Charter. The Supreme Court itself recently showed itself willing to look to international treaties and declarations to justify a liberal interpretation of the Charter in Ewanchuk (R. v. Ewanchuk, [1999] 1S.C.R. 330) and Baker (Baker v. Canada (Minister of Citizenship and Immigration),[1999] 2 S.C.R. 817). Thus, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by Canada in 1981, states in its Preamble that "discrimination against women violates the principles of equality of rights and respect for human dignity" and that discrimination "is an obstacle to the participation of women, on equal terms with men, in political life." Moreover, Section 7of the Convention asserts the principle that "State Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right . . .(b) to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government."

The Beijing Platform for Action, adopted following the Fourth World Conference on Women, commits Canada to "take all necessary measures to eliminate all forms of discrimination against women and the girl child and remove all obstacles to gender equality and the advancement and empowerment of women" (para 24). It acknowledges that "the equitable distribution of power and decision-making at all levels is dependent on Governments" and that "equality in decision-making is essential to the empowerment of women." (para 187). The Platform states that governments should "take measures, including, where appropriate, in electoral systems that encourage political parties, to integrate women in elective and non-elective public positions in the same proportion and at the same levels as men." (para 190 b). Finally, the Platform commits governments to "remove all barriers that directly or indirectly discriminate against the participation of women," "consider incorporating gender issues in their political agenda, taking measures to ensure that women can participate in the leadership of political parties on an equal basis with men." Last summer, during the Special General Assembly of the UN organized in New York City to ensure a follow-up to the State parties Platform commitments("Beijing+5"), Canada once again agreed to specific measures designed to ensure women's equality in the political sphere.

These commitments from the Canadian government should have more than symbolic value. They ought to be argued in Canadian courts to support equality-based interpretations of governments' constitutional obligations when it comes to political parity for women. The issue for us is whether to adopt such a strategy. It has met with great success recently in France. There certainly is room for discussing the various options we are faced with, options which are not mutually exclusive. Should we go on building on the development of the women's movement, or take steps toward the adoption of a proactive law that would ensure women's political parity, or look into a more radical option, such as the creation of a feminist party? This is certainly a matter for discussion, one that should prove most interesting.

For more and related information, see the Women's Human Rights international web site at

Andrée Côté is NAWL's Director of Legislation & Law Reform.

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

Bringing Beijing + 5 Home to Canada

What Was the Beijing + 5 Process About?

By Suki Beavers

Women in Canada and around the world worked hard to prepare for the 1995Fourth World Conference on Women, held in Beijing China. For many women in Canada, the Conference and parallel NGO forum sparked interest in the United Nations system. That World Conference resulted in 189 UN member states, including Canada, committing themselves to the Platform for Action (the PFA), which defines strategic objectives and actions to be taken by governments, the international community, NGOs, and the private sector to achieve fundamental changes to advance women's equality by the year 2000.

In June 2000, the United Nations held a Special Session of the General Assembly called Women 2000: Gender Equality, Development and Peace for the 21^st Century to review and assess the progress made in the 5 years since countries committed themselves to the PFA. The Beijing +5 process, as it came to be known, was meant to renew and build on commitments contained in the PFA, to examine obstacles to the implementation of the goals of the PFA, and to look at further actions and initiatives needed to achieve global gender equality. However, as preparations for the Special Session began, many women were concerned that it could provide an opportunity to rollback gains made, particularly given that it was clear that no country in the world, including Canada effectively implemented the commitments made under the PFA.

Preparing for Beijing +5

In the five years since the Beijing conference, some equality-seeking women's groups began focusing on strategies to participate effectively and strategically at the international level. One such strategy was to establish the Canadian Feminist Alliance for International Action (FAFIA). Over 40 Canadian equality-seeking nongovernmental organizations, including NAWL, founded FAFIA at a February 1999national consultation of women's organizations in Ottawa. The FAFIA alliance is coordinated through an elected Steering Committee and is anchored in a secretariat located in Ottawa.

FAFIA's goals are to:

• develop the capacity of Canadian equality seeking women and women's groups to participate in current and future domestic policy debates as those debates are informed and affected by globalization trends and the liberalization of trade;
• facilitate the ability of Canadian women's NGOs to intervene effectively at the United Nations and other international fora
• to assist women to develop strategies, methods of working, and means of coordinating their activism to strengthen the international dimension of the work of women's NGOs for gender equality,
• hold our governments (federal, provincial and territorial) accountable to the international commitments and obligations signed by Canada. These include the Beijing Platform for Action (Fourth World Conference on Women), the Universal Declaration of Human Rights and its accompanying covenants, including the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Covenant on Social, Economic and Cultural Rights and the Convention on all Forms of Racial Discrimination(CERD). FAFIA seeks the full implementation of all international human rights instruments and agreements in Canada in order to address the economic and social inequalities that women in Canada continue to face.

In preparation for the Beijing +5 process, FAFIA undertook coordination of Canada's NGO Alternative Report. This involved gathering information on where and how successfully the Beijing PFA has been implemented in Canada, where and how it has not been implemented, and where gender equality has been eroded since 1995.

The Canadian Alternative Report is divided into two parts. The preliminary portion of the report is entitled The Other Side of the Story: A Feminist Critique of Canada's National Response to the UN Questionnaire on the Implementation of the Beijing Platform for Action. This report was completed in December 1999.

The second portion of the Alternative Report is entitled Toward Women's Equality: Canada's Failed Commitment. This report was prepared for the UN General Assembly Special Session in June 2000. The FAFIA report was included in the global alternative report, which made clear that no country in the world has implemented the commitments contained in the PFA. Government inaction rather than implementation was the global norm. Toward Women's Equality was launched in Canada at a press conference held in Ottawa on September 27, 2000. The report more fully documents the progress, failures, obstacles and issues of concern for women in Canada and makes concrete recommendations on what Canada must do to comply with its international obligations, in particular the full implementation of the PFA.

As part of the "Beijing + 5" activities, FAFIA held its second national consultation in Ottawa from February 11-14, 2000. Building on the work of the 1999 national consultation, the February 2000 consultation marked an historic effort in coalition building and making the links between international and domestic efforts to achieve gender equality. In addition, a training session on UN meetings and mechanisms was held.

FAFIA led teams of equality seeking women in Canada to preparatory meetings held prior to the Special Session, including the Economic Commission of Europe and North America (ECE) and the Commission on the Status of Women (CSW) meetings whichwere held in Geneva in January 2000 and New York in March 2000.

As a result of the FAFIA consultation, for the first time, Canadian equality-seeking women's NGOs had agreed upon common positions for the CSW meeting held in NewYork in February-March 2000. The delegation of equality seeking women who participated in the CSW in March 2000 held agreed upon positions on the Outcomes document (the UN document under consideration), in all 12 critical areas of concern and took a coordinated approach to working at the UN. Finally, the consultation provided an important venue for dialogue between government and equality-seeking NGOs in relation to the international work on gender equality.

Where Do We Go From Here?

In June 2000, FAFIA led a group of equality-seeking women to participate in the Special Session in New York, including women in mentored positions. Making the links between domestic priorities of the women's movement in Canada and the government's foreign policy is new to many equality seeking NGOs. Effective lobbying at the UN is a skill that must be developed over time. The "Beijing+5" process provided invaluable opportunities for equality-seeking women's groups in Canada to work and lobby at the UN. We must continue to develop the capacity of equality-seeking women in Canada to work at the UN.

One of the most important aspects of participating in the Beijing +5 process was the opportunity for equality-seeking women in Canada to work with and learn from women of the south. Too often, the racism that permeates the government negotiations can also be replicated in the NGO caucuses. Understanding those dynamics and having the opportunity to work with NGOs from the south provides invaluable perspectives for our domestic and international equality work in Canada.

The UN system is difficult to navigate and the government negotiations at the June Special Session almost broke down entirely. However, after much last minute negotiating, a new Further Actions and Initiatives document was agreed to which did not roll back the PFA. In many instances, the new document repeated the language of the PFA verbatim but there were some areas where advances were made. For further information on the Beijing +5 Special Session, copies of FAFIA's Fall 2000 newsletter entitled from Beijing to Beijing +5 are available, or feel free to consult the FAFIA website at .

As was the case in 1995, when the UN meeting ends, women face the enormous task of taking international commitments home and holding our respective governments accountable to implement the international commitments made. The Beijing +5 process has demonstrated that nowhere in the world has the PFA been adequately implemented. In the post Beijing +5 period, it is paramount that PFA standards are turned into actions and outcomes of Canadian policymaking. In this implementation phase, the importance of ongoing and consistent equality-seeking women's contributions cannot be overstated.

One strategy that women's groups in Canada can employ is to ensure that they include references to the international commitments that Canada has made in all of the lobbying work that is done at the municipal, provincial/territorial and federal levels. We can also refer to intensest that the links be made between the Canadian Demands of the World March of Women and the international commitments that Canada has already pledged itself to.

In February 2001, FAFIA will be holding a think tank on Implementation Models which will focus on developing and proposing appropriate models for the domestic implementation of Canada's international commitments on gender equality using an integrated feminist analysis through participatory research.

Strategic international participation by equality-seeking women requires a continued commitment to press Canada to live up to the commitments it has made. This will be an ongoing struggle but an important one if Beijing and "Beijing+5" are to have any real impact for women in Canada.

Suki Beavers is the Executive Director of the Canadian Feminist Alliance for International Action, FAFIA

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Custody and Access Project in Ontario

By Marsha Sfeir

Since September 2000, representatives from seven Ontario organizations have been meeting to explore ways of working together to more effectively respond to the needs of women and children involved in custody and access issues.

The National Association of Women and the Law, Ontario Association of Interval and Transition Houses, Northwestern Ontario Women's Centre, Education Wife Assault, Action ontarienne contre la violence faite aux femmes, METRAC, and the Durham Region Custody and Access Project have come together to develop an action plan that will lead to a province wide strategy for a consistent coordinated response to custody and access issues faced by woman, especially those who have been abused.

The idea grew out of a national consultation on Child Custody and Access that the Vancouver Custody and Access Support and Advocacy Association held in April 2000. Throughout the three days of meetings in Vancouver women from across Canada described the fragmented voice of those working on violence against women as groups individually respond to custody and access issues. Repeatedly, a call for a national strategy was heard as women shared their experiences.

It was clear prior to and during the consultation that organizations working on custody and access issues faced by women who are abused in Ontario were frustrated by the lack of a consistent, coordinated response to the needs of abused women with children. This is particularly true when they attempt to separate from the abuser who is often the father of their children.

As a result of the consultation, a number of groups in Ontario (especially those who have received grants from Status of Women) became aware of the fact that several of us were doing complimentary work on custody and access issues, but we were not systematically sharing research, resources, and experiences. It became clear that a Provincial strategy was the necessary first step before a national strategy could be realized.

A network of groups would provide a key opportunity to provide leadership in developing a concerted provincial response to federal government consultations on custody and access law reform. This provincial coalition, if properly resourced, has the ability and the expertise to inform provincial and federal decision-makers on the important issues that affect women's human rights in the context of custody and access, and to influence the outcome of future legislative reform.

The network plans to enhance the effectiveness of the work of women's advocates on custody and access issues by sharing information and data collected through previous local initiatives. Creating a common body of information will ensure that we do not re-invent the wheel and waste valuable resources. Recommendations from the various sector reports will be consolidated and priorities already determined on custody and access issues will be identified. This will make it easier and more efficient to set collective priorities and develop an action plan.

We are now trying to identify other women's equality seeking groups in Ontario who work on custody and access issues affecting woman abuse survivors and their children, and individual woman abuse survivors. However, we recognize that custody and access issues affect women differently depending on their race, class, sexual identity, ability/disability, and immigration status. We are, therefore, making every effort to include organizations that can reflect the needs of immigrant women, women of colour, Aboriginal women, women living in poverty, lesbians, women with disabilities and Deaf women.

If the network receives funding a two day working meeting of women's equality seeking organizations working on custody and access issues will be held to develop a province-wide strategy to respond to the priority recommendations.

To maximize participation, the two-day meeting will be held in a fully accessible space. French and ASL interpreters will be available. If additional needs are identified during the planning process, the steering committee will do whatever possible to accommodate the individuals.

For more information or if you are interested in participating, please contact Marsha Sfeir, Education Wife Assault, 416 968 3422 ext. 26 or e-mail info@womanabuseprevention.com

Marsha Sfeir is the Coordinator of Training for Education Wife Assault in Toronto

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On Losing Lesbian Rights

by Andrée Côté

While the Fourth World Conference of Women held in Beijing in 1995 fell short of formally recognising the rights of lesbians and gay men, many United Nations bodies and programs - such as the UN Commission on Human Rights, the Human Rights Committee, the High Commission for Refugees, the ILO, UNESCO - have since addressed sexual orientation in a number of forums and mechanisms. In Canada, we have also seen a series of important legal victories recognizing the equality rights of lesbians and gays in the Supreme Court of Canada and in federal and provincial legislation (albeit, far from satisfying).

It is in this context that the Canadian delegation sent by the Feminist Alliance for International Action (FAFIA), of which NAWL was part, traveled to the Special Session of the U.N. General Assembly entitled "Women 2000: gender equality, development and peace for the twenty-first century", more commonly referred to as the "Beijing+ 5" meeting. Some of us were hopeful of winning some form of recognition for lesbians' human rights. Indeed, the proposed "Outcomes Document", the final version of which is entitled "Further actions and initiatives to implement the Beijing Declaration and the Platform for Action", that had been submitted by the Commission on the Status of Women (acting as the Preparatory Committee for the Beijing + 5 UN Special Assembly) contained several references to sexual orientation. Specific proposed articles recognized the human rights of lesbians through anti-discrimination legislation, would have prohibited the criminalization of homosexuality and ensured protection against homophobic violence. One article also provided for a recognition of women's diversity as well as the additional barriers faced by lesbians. Finally, the "Outcomes" document proposed to ensure that "women of all ages can fully realize their sexuality, free of coercion, discrimination and violence" (article 108a). We went to New York united behind a strong Canadian consensus in favour of defending lesbian rights, and throughout the week, we actively pressured Canadian government delegates and officials to take a firm stand on the inclusion of sexual orientation in the "Outcomes Document".

The U.N. small working group meetings were marked by delegates often trying to justify their lack of respect for women's human rights by invoking national "sovereignty". Sexual orientation was not discussed until the twelfth hour, literally at midnight on June 8, when the Special Assembly was due to end on June 9. The debate lasted all of 45 minutes, was highly emotional, almost hysterical, and focussed exclusively on a preliminary statement in the section on the "achievements and obstacles" in the implementation of the Beijing Platform for Action (PFA) that read as follows: "in a growing number of countries legal measures have been taken to prohibit discrimination on the basis of sexual orientation". The oral debate was dominated by opinions of countries who chose to speak as individuals rather than aligning with other countries. Canada, the USA, and European countries, many Latin American and African countries formed "blocs" which were represented by one spokesperson. This had the effect of distorting the debate by giving far more public attention to opinions advanced by individual countries and obscuring the range of opinions of countries whose individual voices were subsumed by a "bloc" position. Religious fundamentalists of all stripes prevailed, supported by the intimidating presence in the halls of right-wing Christian fundamentalists and the "pro-family" lobby.

The Further Actions document that was finally adopted has excised all reference to sexual orientation and in this sense, we were not able to win an explicit universal recognition of the human rights of lesbians. Many of us left New York with a deep sense of having lost an important battle. However, Further Actions does promote the elimination of all forms of discrimination against women and several member states, including Canada, have declared to the General Assembly that they would interpret Further Actions and the Beijing Platform for Action as applying equally to lesbians. Unfortunately, this offers little help to the millions of lesbians around the world who continue to face discrimination, violence and oppression because they dare to love women, and live independently of men.

Andrée Côté is the Director of Legislation and Law Reform for the National Association of Women and the Law

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Same-Sex Marriage

By CJ. Rowe and Ros Salvador

My partner Carolyn Moffat and I (Carolyn Rowe) decided to participate in the Ontario test-case on marriage for same-sex spouses. This past spring, we drove down to Toronto's City Hall where we applied for a marriage license. We were not granted or denied our marriage license, but were asked to wait for further clarification. The Clerk at the Marriage Registry Office is now seeking direction from the Superior Court of Justice by way of an application.

To date, my partner and I are one of eight couples seeking the right to marry in Ontario. The Clerk's application has been stayed and our application for judicial review to the Superior Court of Justice (Divisional Court) is proceeding. We anticipate a long road ahead that will hopefully culminate with Canada recognizing that same-sex couples have the same rights as opposite sex couples and allowing us the choice to legally marry. Challenges like this one have surfaced across Canada in British Columbia, Ontario and Quebec.

There is currently no statute in Ontario that denies same-sex couples the right to marry. There are a few cases (none at the Supreme Court of Canada level) that hold that marriage between two persons of the same sex is void. Provinces have relied on these decisions to deny marriage licenses to same-sex couples.

The federal government's Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, is the first federal act to affirm the common-law prohibition. The interpretation section of the Act states:

s. 1.1 [f]or greater certainty, the amendments made by this Act do not affect the meaningof the word "marriage", that is, the lawful union of one man and one woman to the exclusion of all others.

This interpretation is not consistent with Charter values. Furthermore, the federal government's restriction of marriage to opposite-sex couples and the provinces' refusal to register same-sex marriages constitutes state (in)action and therefore attracts Charterscrutiny. In light of recent case law addressing discrimination against lesbians, gays, and bisexuals, it is likely that the failure to allow same-sex couples to marry will be found to violate section 15 of the Charter and not justifiable under section 1.

In addition to conferring a variety of benefits, the institution of marriage confers social acceptance. Depriving same-sex couples of the right to marry deprives gays, lesbians, and bisexuals access to one of the most valued institutions in Canadian society. As Greer J. stated in her dissenting reasons in Layland v. Ontario (1993), 104 D.L.R. (4th) 214(Ont. Ct. (Gen. Div.)) at 231:

In my view, the impact of the denial of the granting of a marriage certificate to the Applicants, is discriminatory. It is burdensome on the Applicants and others who wish to marry persons of the same sex. The message they receive must surely give them the perception that they are inferior persons in our society.

Recently, in Baker v. State of Vermont, [1999] VT-QL 77, the Vermont Supreme Court held that the state's failure to exclude same-sex couples from the benefits and protections provided to married couples was discriminatory and ordered Vermont to extend all the benefits of marriage to same-sex couples. The Court stated that this could be done by extending marriage to same-sex couples or through registered domestic partnerships (RDPs). The Court did not consider whether same-sex couples should be able to obtain marriage licenses per se because the plaintiffs focused their arguments on the benefits attached to marriage rather than the validation conferred by the right to actually marry.

In Canada (Attorney General) v. Moore (T.D.), [1998] 4 F.C. 585(T.D.), Canada's Federal Court ruled that an employer attempting to resolve the discriminatory practice of withholding benefits to same sex couples continues to discriminate by providing a separate benefits scheme for "same sex partners." Rather, the definition of "spouse" and "common law spouse" had to be understood to include spouses of the same sex. Although decided pursuant to human rights legislation and not section 15 of the Charter, if the reasoning in this case is followed, it is unlikely that providing same-sex couples in Canada with RDPs and continuing to prevent us from marrying will satisfy equality requirements.

Furthermore, the reasoning of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3,provides a strong basis for arguing for same-sex marriage. The majority of the Court held at paragraph 124 of the decision that the exclusion of same-sex couples from the definition of "spouse" in Ontario's Family Law Act violated section 15 of the Charter and was not saved by section 1. The majority of the Court recognized that exclusion from the statutory regime has moral societal implications in addition to economic ones, stating at paragraph 73:

The societal significance of the benefit conferred by the statute cannot be overemphasized. The exclusion of same-sex partners from the benefits of s. 29 of the FLA [Family Law Act] promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances. As the intervener EGALE submitted, such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.

Martha McCarthy and Joanna Radbord who were counsel for "M", write in "Reflections on the Impact of M. v. H." (1999) 14:7 Money & Family Law 49 at 51, that: "[i]t will be impossible, on a substantive equality rights analysis, to distinguish the S.C.C.'s reasoning in M. v. H. when same-sex marriage steps up to the bar".

While the history of discrimination against same-sex couples may explain the current exclusionary interpretation of the freedom to marry, it does not justify the continuation of discrimination.

NAWL's Lesbian Rights Caucus is involved in a lively discussion on the issue of same-sex marriage. The controversial issue that has emerged is whether we should support the inclusion of same-sex couples into the legal construct of marriage or whether we should have a more in-depth discussion on family and the privilege associated with marriage. This debate is ongoing and will prove to be a challenging and exciting endeavor.

CJ Rowe and her partner Carolyn Moffatt have applied for a marriage license in the City of Toronto. Rowe is also a Master's of Arts student in Legal Studies at Carleton University and is a member of the Lesbian Rights Caucus.

Ros Salvador is a third year law student at the University of Victoria. She has a B.A. in Women's Studies from the University of Ottawa and is a member of NAWL's Steering Committee and Lesbian Rights Committee.

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The Women's Economic Equality Project

By Leilani Farha

In conjunction with the United States Centre on Economic and Social Rights and the Centre on Housing Rights and Evictions (Geneva), NAWL is a partner in the newly established Women's Economic Equality Project. The goals of the Project are to improve understanding, recognition and implementation of women's right to equality, to define equality as a right that encompasses economic, social and cultural rights as well as civil and political rights, and to introduce a gender perspective to economic and social rights.

Our first event is an international consultation in Cape Town, South Africa (December 7 - 10, 2000)which will bring together 30 women's human rights advocates from every region of the world, with strong representation from Canada. The overarching aim of the consultation is to create a much needed space and process to encourage and support work specifically focused on women's economic, social and cultural rights. The consultation will provide an opportunity for participants to discuss women's economic inequality and to strategize about injecting women's perspectives in the interpretation and application of economic and social rights.

For more information about the Women's Economic Equality Project and the Capetown Consultation, please contact: Shelagh Day <sheday@unixg.ubc.ca>,

Leilani Farha <farwise@attglobal.net> or Sarah Zaidi <szaidi@cesr.org>

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Update on the Pamela Jean George Case

By Diane Rowe

In the early morning hours of April 17, 1995, on the outskirts of Regina, Saskatchewan, Pamela Jean George was beaten to death by two young white men. One of the two men convicted of killing her recently received full parole on November 10, 2000. Once more, this case triggers outrage in Aboriginal and women's communities, as it remains an example of the failure of the Canadian criminal justice system's capacity to address crime based in racism and misogyny.

Pamela George was 28 years old, a member of the Saulteaux First Nation, and single mother of two children. Occasionally, she was a sex trade worker. On the night of her death, George was approached for a "date" by Steven Kummerfield. Unknown to George, Alex Ternowetsky was hiding in the trunk of Kummerfield's car. Both men were drinking heavily.

The two men demanded oral sex from George, and then began beating her, but said they didn't know why they struck her. Hours later she died of cerebral hemorrhaging.

The men were charged with first degree murder, committed in connection with sexual assault and forcible confinement. Two friends of the accused gave evidence that each accused had bragged of the killing, with Kummerfield quoted as stating "... she deserved it. She was an Indian."

However, in December 1996, Kummerfield and Ternowetsky were convicted by jury of manslaughter, rather than murder, and sentenced to six and a half years each by Justice Ted Malone, with a delay placed on their ability to obtain parole as an extraordinary sanction.

Justice Malone instructed the jury to remember that George was "indeed a prostitute" when considering whether she consented to a sexual assault. His comments lead a coalition of Saskatchewan women's groups, including NAC, to file a complaint to the Canadian Judicial Council. Vigils were held for George across Canada in at least nine cities.

In 1998, Justice Malone's decision was appealed by the Crown, on the grounds that the judge's instruction to the jury amounted to a direction to acquit the accused of murder. The accused counter-appealed on sentence. The Saskatchewan Court of Appeal held that the instruction to the jury was proper, but noted the Crown should have made its objection at the time of instruction. It declined to review the sentence.

Unfortunately, the Criminal Code hate crime sentencing provisions (Part XXIII of the Criminal Code,R.S.C. 1985, c. C-46) that came into force September 3, 1996, three months before the conviction and sentencing of the accused, were not applied or considered by either court in the George case.

Section 718.2 (1) (a) provides that a sentence should be increased to take into account relevant aggravating circumstances relating to the offence or the offender. The provisions state evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or other similar factors shall be deemed by the Court to be an aggravating circumstance. It is certainly arguable that if the aggravating factors of racism and misogyny were considered, the requisite intent to cause bodily harm likely to cause death may have been proven on the charge of murder, or in the alternative, the sanction imposed for George's manslaughter would have been more substantial.

Kummerfield was granted parole after serving less than four years of his sentence. Tellingly, when considering him for parole, the Parole Board asked Kummerfield about his participation in a violent gay-bashing police had questioned him about prior to George's death.

Diane Rowe is a member of the Saulteaux First Nation, Manitoba. She practices with White Ottenheimer & Baker, in St. John's, NF, and is a Co-Coordinator of NAWL.

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Rape Shield Provisions Upheld

By Cynthia Devine

The Supreme Court of Canada upheld the rape shield provisions of the Criminal Code (s. 276, 276.1and 276.2) in R. v. Darrach, 2000 SCC 46, released October 12. Except in one respect, the decision does not extend protections to women; its importance lies in the fact that it entrenches and mainstreams protections we already fought for and won. The decision in Darrach was unanimous and was written by Justice Gonthier. It appears that the era has passed in which women's point of view concerning sexual assault could be found only in the dissenting judgments of the Supreme Court of Canada.

The rape shield provisions protect women from routinely being cross-examined on the witness stand about their past sexual histories. The practice of this type of cross-examination did not depend on the bloody-mindedness of defence lawyers as a group or the meanness of particular defence lawyers. It was part of Canada's evidentiary and procedural law adopted from Britain and firmly based on rape myths as old as the crime of rape itself. The twin myths underlying the old law, and now prohibited by rape shield, imply that women who had sexual intercourse on other occasions, firstly, always consented to sex, and secondly, were more likely to lie. This meant that every sexual assault complainant who had ever had sex (either consensually or against her will) could expect to be cross-examined about her past sexual history if she reported the crime. Men who sexually assaulted women could rely on their victims' fear of getting "whacked" a second time in court. In the case discussed here, Andrew Darrach told the complainant, "Are you thinking of accusing me of rape, because if you are, I'll see you in court."

In 1991, Parliament's earlier rape shield provisions had been struck down by the Supreme Court inR. v. Seaboyer, [1991] 2 S.C.R. 577. Immediately following that decision, NAWL and other women's groups lobbied the then Justice Minister Kim Campbell to introduce a new rape shield. Within four months the Minister introduced Bill C-49 and by early 1992 the House of Commons and the Senate unanimously passed the new bill into law.

Both the substantive and procedural provisions of the 1992 rape shield law were challenged by the Ontario accused, Andrew Darrach, and both were upheld by the Supreme Court. The following summarizes the substance and procedure for s. 276:

1. The accused may not adduce evidence of the complainant's other sexual activity to show that by virtue of that activity being sexual in nature: i) that she is more likely to have consented, or ii) that she is less credible;
2. Specific evidence of other sexual activity may be adduced if it is relevant and if it has significant probative value. If the relevance of the other sexual activity is trifling, it is not admissible.
3. The accused makes an application in writing particularizing the evidence he intends to adduce and how it is connected to the defence he is raising;
4. The judge will review the written application to see if the evidence is capable of being admissible - i.e. the accused is not trying to adduce the evidence for the twin myths noted above, is adducing evidence of specific instances of sexual activity, and is relevant to the defence the accused is relying on and has significant probative value;
5. If the evidence passes this threshold stage, then the judge must hold a voir dire to determine admissibility. The judge must consider 8 factors listed in s. 276(3), which involve a balancing of the rights of the accused to a fair trial, the purposes of the section to protect the privacy and dignity of sexual assault complainants and to encourage the reporting of sexual offences, and society's interest in fair trials.

In Darrach, the Supreme Court clarified one issue over which there had been conflicting judgments by trial and appellate courts and which represents one victory for women. The decision is clear that rape shield applies not only to consensual, but also to non-consensual sexual activity. The Legal Education Action Fund(LEAF) in their intervention advocated strongly for this interpretation.

It seems there has also been a larger victory. The feminist viewpoint which NAWL, LEAF and other women's groups have long advocated in the criminal law, particularly with respect to sexual offences, seems now to be accepted as part of standard evidentiary law and common sense procedure.

We're finally getting to the nitty gritty of what a rape shield law really is. The court now states that the accused can never raise irrelevant evidence. If an accused wants to cross-examine a woman about her past sexual history, he must first file an affidavit stating the connection between that evidence and his defence, and hahas to be prepared to be cross-examined on that affidavit by the Crown. The Court also stated that evidence of past sexual history would rarely be relevant to a defence of consent, because the determination of consent"is only concerned with the complainant's perspective. The approach is purely subjective." (citing R. v.Ewanchuk, [1999] 1 S.C.R. 330). Gonthier J. observed that s. 276 applications will most often arise in cases where the defence is 'honest but mistaken belief' in consent. In such a case, the accused must provide some evidence of what he believed at the time of the alleged assault.

What feminists may find heartening in Darrach is that Gonthier J's reasons aren't yet another tome in feminism101. It was neither necessary to detail yet again the inequality faced by sexual assault victims, particularly women and children, in the criminal justice system; nor that rape, the fear of rape, and the double jeopardy faced by women who report rape to the police, serve to keep women oppressed; nor that reliance on the rape myths results in a miscarriage of justice and pillory individual women on the witness stand. This time the Court felt no compulsion to restate that the Charter protects not only the rights of those accused of sexual assault, but also the rights of the complainants. It seems like we've gone past that. I hope.

Cynthia Devine is a National Steering Committee Member with NAWL and is the editor of Jurisfemme. She represented the Manitoba Attorney General who was one of the interveners in R. v. Darrach.(the views expressed here are her own and not necessarily those of the Manitoba government.)

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Ten Good Reasons to Oppose Granting Criminal Immunity to Police

By Liz Sheehy

I attended a round table hosted by the Department of Justice on October 5, 2000 on the government's White Paper on Criminal Liability and Law Enforcement, along with a number of other academics and legal activists.

The White Paper proposes legislation that would allow "designated" officers to commit offences during the course of investigations, where they believe on reasonable grounds that the crime is for the purpose of assisting the officer in law enforcement. This class of "designated" officers would potentially include any police and law enforcement agents who enforce federal schemes, such as the Criminal Code, the Controlled Drugs and Substances Act, the Fisheries Act and the Immigration Act. "Designated" officers could commit offences during investigations or in course of executing their law enforcement duties without prior approval or authorization, if the officer "reasonably believes that it is reasonable and proportionate to the criminal activity being investigated". The legislation would, however, require prior approval from a senior law enforcement official in some cases, but only for offences likely to cause serious bodily harm or serious loss or damage to property.

Prior approval to inflict force likely to cause bodily harm would be granted if the officer and supervisor believed on reasonable grounds that it was necessary to preserve the life or safety of another, to prevent the compromise of the identity of an undercover officer, a confidential informant or a person acting covertly under an officer's direction, or to prevent the loss or destruction of evidence of an indictable offence (this will include all hybrid offences, because they are deemed indictable until the prosecutor elects to proceed by way of summary conviction). The White Paper contemplates that in emergency circumstances prior approval will not be necessary if it is not "feasible".

The only offences excluded from the proposed immunity from criminal law are intentional or reckless causing of death or grievous bodily harm and sexual assault. Thus, even some forms of manslaughter are not clearly excluded from the proposed immunity for police.

A flavour of what has motivated this law was provided by RCMP Inspector Raf Souccar who presented first at the round table. He asserted that the Supreme Court of Canada decision of R. v. Campbell and Shirose,[1999] 1 S.C.R. 565 "changed the law" and "took away" police powers to break the law in order to investigate crime. He presented statistics on RCMP investigations to support his contention that police had dramatically curbed their undercover operations because they now felt vulnerable to criminal charges. He suggested that the new judge-made law impeded Canada's police from being cooperative partners in fighting international"organized crime." He also used anecdotes about undercover experiences to illustrate the criminality of the people they are policing and how imperative it is to give undercover officers all the tools they need. Representatives from Canada Customs, Fisheries and the Environment gave brief presentations to explain why their law enforcement officials also need immunity from criminal prosecution. One example provided was of fisheries officers who are trying to enforce the law in Burnt Church, New Brunswick sitting in fishing boats without lights in order to catch Aboriginal lobster fishers.

We spent the rest of the day arguing with the Department of Justice and law enforcement people about whether we "need" new legislation and whether that contemplated by the White Paper could withstand legal and policy-based scrutiny. Below are "twelve reasons" we opposed, and I think all Canadians should oppose, this proposed legislation to immunize police and other federal law enforcement officers when they commit criminal offences.

1. No crisis

Our preliminary objection to the legislation is that it is unnecessary. Campbell and Shirose didn't "change" the law; we have known at least since the McDonald Commission reported on the activities of the RCMP in1981 that police are subject to the criminal law, that there is no residual common law authority or defence to exempt them and that to determine otherwise would amount to a serious abrogation of the "rule of law". One wonders what the possible basis in law the Department of Justice had for apparently advising the RCMP in Campbell and Shirose that their criminal actions of selling drugs were above the law.

In other words, it is not a development in the law that has created the "crisis". The real crisis may perhaps be for the Department of Justice, since they seem to have provided the police with questionable legal advice in Campbell and Shirose. The Ontario Court of Appeal stated that if they had indeed advised the RCMP that their actions were legal, then this advice would amount to "an aggravating factor" in the abuse of process argument, because the "full might of the Crown resources were set upon the task of illegal conduct."

Law enforcement itself also seems to be generating a crisis in response to Campbell and Shirose: it was suggested that officers are loathe to continue undercover operations unless they receive carte blanche immunity from criminal prosecution.

2. No negative effects of Campbell and Shirose

Second, there is no evidence of any actual negative effects of Campbell and Shirose. Police and prosecutors continue to exercise their discretion such that only egregious police criminality is prosecuted. The Department has no evidence to suggest any surge in criminal charges against police. The law enforcement representatives acknowledged that they have not experienced an increase in charging of police after Campbell and Shirose.

Moreover, Campbell and Shirose has not resulted in any increase in the rate at which stays of proceedings are granted on the basis of abuse of process. In fact, the Supreme Court in Campbell and Shirose said simply that crimes committed by police during an operation were only one factor, not a determinative factor, to be considered when deciding whether the prosecution should be stayed on the basis of abuse of process.

3. Democratic principles

Third, we oppose the law proposed by the White Paper because it contemplates a serious derogation of the"rule of law". It thus strikes a blow against democratic principles of separation of executive and police powers, the notion that no one is above the law, and the requirement that democratic institutions operate openly, publicly, and be accountable to the electorate. It is further disconcerting in the extreme that the proposed legislation states its purpose as to ensure that "public officers may effectively carry out their law enforcement duties in accordance with the rule of law" [italics added].

This proposal represents the biggest threat to the civil liberties of Canadians since the invocation of the War Measures Act in 1970. Unlike that measure, however, this suspension of democratic principles will not bea temporary but rather an indefinite expansion of police powers in Canada.

4. Charter violations

Fourth, the Department of Justice acknowledged that the proposed legislation raises significant s. 7 Charter concerns in that it would permit the violation by police of individuals' rights to security of the person and to privacy. Beyond these violations, it will also permit violations of the Charter rights to be protected against unreasonable search and seizure (s. 8), the right to be protected against arbitrary detentions (s. 9), and the right to equality before and under the law (s. 15). The Department proposes that s. 1 can be invoked to justify any breaches. Whether s. 1 can be successfully invoked for such broad legislation, without elaborating upon each specific law enforcement context that requires such drastic legal measures, is, at best, a dubious legal proposition. It is certainly untenable in policy terms to justify serious violations of constitutional principles by reference to law enforcement's resistance to a Supreme Court ruling.

5. Breadth of the proposed legislation

Fifth, we opposed the proposed legislation on the basis of its astonishing breadth, which we believe to b eunequaled in any non-police state. We are unaware of any jurisdiction that has adopted a sweeping law that covers all manner (except intentional or reckless causing of death or grievous bodily harm or sexual assault) of crime by police in the enforcement of any and all legislation. The proposed legislation will ensure that nearly all criminal acts by police will be hidden from public scrutiny, even more so than is already the case, and that there is no mechanism to ensure record-keeping or reports to Parliament when police commit offences. Thus, we will not even know how much and what forms of police criminality are being shielded by the law.

6. Scope exceeds its purpose

Sixth, although the proponents of the White Paper continually focused on the crisis of "organized crime" and the dangers and need for "undercover operations", they admitted, when pressed, that the proposed law is far broader than the policy basis presented. The very broad language of the proposed law should worry all Canadians who are concerned about police brutality in the exercise of law enforcement. We have only recently seen the first homicide conviction for an on-duty shooting of a person from a racial minority group. (Deane,who was convicted in 1998 of criminal negligence causing death to Dudley George in the Ipperwash stand-off). Meanwhile, police are involved in intense and political struggles against special investigations units mandated to inquire into police violence and homicides related to killings of African-Canadian men. The proposed immunity will, arguably, shield the excessive use of force even by officers in uniform, if they work in designated units.

7. No judicial prior authorization required

Seventh, the law makes no provision for a neutral party such as a judge to determine when it is reasonable and proportionate for law enforcement officers to break the law, and thus does not even provide the most basic safeguards for Canadians. The determination is left to individual officers and occasionally senior law enforcement officials, in spite of the fact that these crimes may violate important Charter rights of innocent third parties or persons who police believed to be engaged in crime. As mentioned, the right to security of the person, freedom from arbitrary detention, and equality before and under the law, are all at risk under the proposal. For other serious invasions of Charter-protected interests such as search and seizures, we insist that police first obtain search warrants through a process of prior authorization by a party capable of acting judicially, using a standard of probability.

8. Negative effects on police and increased crime

Eighth, we know, based upon ample criminological literature, that undercover work is damaging to police as individuals. There is a predictable rate at which undercover officers cross over and become "rogue cops", and many suffer the personal fallout of their immersion in a criminal world. This proposal will increase the scope of undercover operations because it grants such a wide immunity, and it may thereby increase the opportunities for police to "cross over". For example, the work of Mark Carter investigates the factors that produce police corruption in the enforcement of drug laws, and one such significant influence is the "invulnerability factor". There is nothing in the proposal that recognizes the personal risks to undercover officers nor the real risk that creation of a vast criminal immunity may well work to generate more crime.

9. Unequal impact on marginalized communities

Ninth, the dramatic expansion of police powers contemplated here will have an unequal impact on marginalized communities. Data on policing and prosecutions already identifies systemic racism in the exercise of discretion at almost every turn. African- Canadian and Aboriginal communities as well as women who work in prostitution, are already the subject of questionable undercover investigations in specific contexts such as drug trafficking, smuggling, hunting and fishing enforcement, and prostitution, and we should worry about whether these communities will be even more severely affected by an expanded police immunity. The Department of Justice has not apparently undertaken a s. 15 Charter impact analysis of the proposed law. That in itself is worrisome.

10. Increased wrongful convictions

Tenth, there is a documented link between increased police powers and immunities and the rate at which criminal justice systems produce wrongful convictions. We have already unearthed several significant wrongful conviction cases in Canada -namely those of Donald Marshall Jr., Wilson Nepoose, and Guy Paul Morin, among others- where the convictions were at least partly the result of reliance on the evidence of police informants. The U.S. evidence also suggests that increased reliance upon the evidence of informants increases the risk of erroneous conviction. By granting criminal law immunity to informants the proposal will further increase the unreliability and dangerousness of informant evidence.

As well, the U.S. experience indicates that "noble cause corruption", whereby police commit crimes of obstructing justice, perjury, and falsification of evidence in order to convict those they believe to be "guilty",is at the heart of most wrongful convictions. This law reform proposal in fact exempts these very crimes from criminal responsibility. Further, it will clearly bolster the ideology of "noble cause corruption" and it is not speculative to state that it will increase the incidence of police misconduct.

11. No redress for victims of police wrongs

Eleventh, the proposal provides no redress whatsoever to the inevitable victims of police criminality--third parties who are injured themselves or whose property is damaged, innocent persons who police mistakenly believe to be involved in crime, and even "criminals" whose rights are compromised or who are seriously injured in the name of law enforcement. Not only does this law immunize the officers from criminal responsibility, but also it declares that no crime is thereby committed, dis-entitling victims to provincial criminal injuries compensation. While the proposal does not purport to remove tort or civil responsibility, there is no guarantee that a private law remedy will be available for those who suffer the consequences of police criminality.

12. No proportionality

Twelfth, the law will authorize police to commit very serious crimes out of all proportion to the purpose for committing those crimes. For example, offences causing grievous bodily harm and perhaps even death (as long as not intended) could be committed to prevent the mere loss or destruction of evidence of a wide range of offences.

Law enforcement representatives at the round table were adamantly opposed to lowering the bar to exclude from criminal law immunity other serious offences beyond those currently exempted in the proposal. In fact, their position was even more frightening: they want no offences to be excluded from the new criminal law immunities. They argued that the exclusion of sexual assault, for example, will raise the bar for loyalty tests such that the excluded offence will become the new loyalty test for gang membership.

It is likely that the Government will move quickly to introduce legislation in this area when the new Parliament is convened. To oppose this frightening law reform, communicate your views to the Minister of Justice, c/o House of Commons, Ottawa, Ontario

Liz Sheehy teaches law at the University of Ottawa Faculty of Law and is currently a Visiting Professor at Osgoode Hall Law School.

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

Winners of NAWL's Trust 15^th Essay Competition

On the theme: Women March 2000: To End Poverty and Violence Against Women

We are pleased to announce the winners of the 14^th Annual Essay Competition organised by NAWL's Charitable Trust for Research and Education:

First prize ($750): Land Reform and Gender in South Africa by Annette Fox
Sponsored by Borden & Elliot, Toronto, Ontario

Second prize ($350): L'égalité et la place de la femme au sein de la magistrature, by Mélanie Grenier
Sponsored by Blakes, Cassels & Graydon, Toronto, Ontario

Third prize ($125): Rape and Forced Pregnancy: Sexual Crimes Under the International Crimes Court, by Kristen Boon
Sponsored by Woman Newsmagazine, Toronto, Ontario

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

JURISFEMME

Volume 20, No. 1
Winter 2001

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

Cynthia Devine, Diane Rowe, Ros Salvador

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

Communications Officer
Maggy Razafimbahiny Pallen

Administrative Officer
Judith Kerridge

National Steering Committee

Sheila Greckol, Edmonton, AB

Ros Salvador, Victoria, BC

Havi Echenberg, Ottawa, ON

Kim Brooks, Toronto, ON

Claudine Barabé, Montréal, QC

Catherine Meade, Ottawa, ON

M. Chantal Richard, Halifax, NS

Regional Representatives

Ontario
Jane Anweiler, Toronto, ON

West/NWT
Cynthia Devine, Winnipeg, MB

Quebec
Marlène Dubuisson-Balthazar, Montreal, QC

Atlantic
Diane Rowe, St John's NF