Jurisfemme
Volume 21, No. 1 Winter 2002
ISSN 0835-0892

In this issue:

Draft Bill on Civil Unions: Is the Quebec Government about to Create Separate Equality for Same-Sex Couples and their Children?

Feminist Perspectives on the Draft Federal Assisted Human Reproduction Act

Custody and Access Alert

Métis Women and Aboriginal Self-Governance: Entrenching Inequality Through the Devolution of Discrimination

Poverty is a Human Rights Issue

Equality Coalition to Present Arguments in Brockie case

Pursuing a Feminist Policy Agenda through Electoral Reform

Rethinking the Budgeting Process: A Call for Renewed Action

Bill C-36: The Anti-Terrorism Act

The Canadian Gender and Trade Consultation

Jurisfemme is...

Draft Bill on Civil Unions: Is the Quebec Government about to Create Separate Equality for Same-Sex Couples and their Children?

By Irène Demczuk

After 28 years of living together as a couple, Michael Hendricks and René LeBoeuf, two gay men, claimed the legal right to marry before Quebec's Superior Court in November 2001. Their claim is similar to those presented a few weeks earlier by some 10 lesbian and gay couples in British Columbia and Ontario.

Hendricks and LeBoeuf must confront not only the Canadian government in court, but also the Quebec Government, as well as the Francophone Evangelical Protestant Alliance of Quebec, and the Catholic Civil Rights League, all of which oppose their request. However, the couple can count on the support of the Quebec Coalition for the Recognition of Same-Sex Spouses, a broad coalition of trade unions, feminist organizations, and advocates for gay and lesbian rights, which was granted intervener status in the case.

A few weeks after the November hearings ended, Quebec's Minister of Justice announced his intention to present a draft bill on civil unions which would grant same-sex couples a status equivalent to that of married spouses. The "Avant-projet de loi instituant l'union civile des personnes de même sexe et modifiant le Code civil et d'autres dispositions législatives" was introduced in mid-December in Quebec's Assemblée nationale and a Parliamentary Commission held in February 2002. But what does this draft bill include in terms of rights and obligations? What advances and limitations does it suggest for the equality of same-sex couples and their children? In early February, Madame Justice Louise Lemelin sent out an order to re-open the hearings so that the possible impact of civil unions on the remedies requested can be discussed.

A LAUDABLE INITIATIVE

Through the draft bill, the Minister of Justice is proposing a new form of relationship recognition, that of civil union, and is creating a third civil status, that of partners, open only to same-sex couples. The bill would amend the Code civil to set out the conditions of formation, celebration, publication, and dissolution of civil unions, as well as its civil consequences, including contribution to household expenses, family residence, family patrimony, compensatory allowance, liability for maintenance, matrimonial contracts and regimes, and the right of succession. Civil unions would allow same-sex couples to avail themselves of many of the rights and obligations to which they have not had access because they were excluded from marriage.

Another positive element of the draft bill is the possibility of celebrating civil unions before the same authorities (judges and religious officials) as married spouses. This is a significant innovation in light of other registered partnerships in the world, which, except for the State of Vermont, do not allow union to be affected through a religious ceremony. The Quebec Government initiative answers the wishes of many lesbian and gay couples who would like to sanctify their unions and obtain the pertinent rights and duties. Some Quebec churches already bless and celebrate same-sex unions and these celebrations could finally grant legal rights.

In the opinion of the Quebec Coalition for the Recognition of Same-Sex Spouses, all of these factors contribute to democratic progress in our society. Nevertheless, the draft bill also includes some major limitations by maintaining discrimination with respect to parental rights by creating a separate civil status for same-sex couples.

FILIATION, PARENTAL AUTHORITY, AND ADOPTION

Section 21 of the draft bill grants parental authority to the partners of a civil union. Paradoxically, however, the draft bill does not allow them to be acknowledged conjointly as parents of a child. How will the biological parent's spouse be able to assume parental authority? This question is especially pertinent as many gay and lesbian couples plan to have children. Those who already have children are pinning their hopes on an acknowledgement of the right to filiation and on access to adoption.

At present, Quebec's public adoption services do not allow same-sex couples to adopt children. Nothing in the law forbids it, but nothing authorizes it either. However the discriminatory practices of the Centres jeunesses du Québec have excluded, in effect, same sex couples from accesss to adoption services. In such a context, couples must decide which of the two partners will be the child's legal parent and must settle for starting a family knowing the child to come will only be allowed legal recognition by one of the spouses.

Lesbian couples who decide to have a child together and choose one woman to give birth to the child face a similar dilemma. The partner of the biological mother will not be able to claim legal recognition of parental status. These parents provide their child with emotional, psychological, and material support, but they are deprived of filiation rights, of parental authority, and of joint adoption.

More important still, this exclusion goes against the interests of children who find themselves deprived of any social or legal recognition of their family. In this respect, numerous studies have shown that the psycho-social development of children who have a homosexual parent isn't any different from the development of children with heterosexual parents (see Monique Dubé and Danielle Julien, "Le développement des enfants de parents homosexuels : état des recherches et prospective" in Actes du colloque Parentalité gaie et lesbienne : famille en marge? (Montréal: Association canadienne pour la santé mentale - section Montréal, 2001)). These children do not show more sexual identity problems, and they are less often sexually abused than children with heterosexual parents. In other words, the homosexuality of one or both parents compromises neither the development nor the security of children. The results of these studies indicate that we should not write off same-sex couples as inadequate parents, since they provide their children with affection, support, and protection equal to that offered by one or both heterosexual parents. It is also interesting to note that these children are not more likely to develop a homosexual orientation.

The Quebec Coalition for the Recognition of Same-Sex Spouses hoped that the draft bill might correct these inequities which have no justification. To the contrary, the draft bill does not address filiation -- at most, it recognizes some degree of parental authority. What message does the Quebec Government want to send the children of these couples? That they don't have the same rights as other children in Quebec? That they are illegitimate children? That their family is not a real family?

By not granting parental rights to same-sex couples, the Quebec Government maintains unequal treatment of same-sex couples in comparison to opposite-sex couples, thus fostering a new form of discrimination that the gay and lesbian communities will continue to fight in the courts.

BEYOND SEPARATE EQUALITY

The creation of civil unions would have the effect of creating a third conjugal status, available only to same-sex cou-ples. Quebec isn't the first jurisdiction to set out on this path in response to the demands of gays and lesbians claim-ing the right to marry.

Since 1989, many jurisdictions, increasingly challenged by marriage-rights demands, have come to grant various forms of registered civil partnership that concede some form of legal recognition to same-sex couples. By the year 2000, ten jurisdictions had implemented some form of registered partnership, whether available only to same-sex couples (Denmark, Norway, Sweden, Iceland, and the State of Vermont), to same-sex and opposite-sex couples (the Netherlands, Hungary, and France), or to any co-habitants who mutually support each other (states of Hawaii and Vermont, Belgium, Spanish Catalonia, and Norway). With the exception of the Netherlands, which adopted a law in September 2000 granting civil marriage rights to lesbian and gay couples, no other country has granted same-sex couples entering a registered partnership rights identical to those conferred on married spouses. Current regimes may give same-sex spouses most of the rights enjoyed by married persons (Denmark, Norway, Sweden, Iceland, and the State of Vermont) or part of the rights granted to common-law partners (France and Hungary). For more information on registered partnerships around the world, please see Irene Demczuk, M. Caron, R. Rose, and L. Bouchard, Recognition of lesbian couples: an inalienable right, available in French and English from Status of Women Canada (Ottawa: 2002).

The principle underlying civil union, and more generally, reg-istered partnerships, is that of granting same-sex spouses some of the advantages and obligations offered to opposite-sex spouses, but in the framework of a separate regime. Thus, the notion of registered partnerships is inspired by the separate equality approach. However, this theory of separate equality has been rejected in Canada, as it was in the United States when racial segregation laws were finally abolished in 1954 (Brown v. Board of Education, 347 U. S. 483 (1954)). In the case of minorities whose oppression is so normalized and trivialized, such as gays and lesbians, the only justification for maintaining discrimination in regard to marriage, and for creating a separate marital status, would be society's low level of consciousness around these issues. Nevertheless, constitutional guarantees in the Canadian Charter of Rights and Freedoms do not allow some people to enjoy more equality than others.

The separate equality approach as a basis for creating "homo-sexual civil unions" in Quebec, would help maintain a judicial, social, and symbolic hierarchy of status based on sexual orienta-tion. It risks sending a signal to the population that lesbian and gay couples are less deserving of recognition as spouses than are heterosexual couples. If we, as a society, truly stand for the values of respect, equality, and dignity established in the Charter, we must disagree with a proposition that would give same-sex couples and their families a different status than that of the majority, but rather, a second-class conjugal status.

On the contrary, we believe that all couples should have access, without regard to partners' sexual orientation, to the same conjugal statuses, be they common-law, marriage, or an eventual civil union. It is important that the Quebec Government extend access to this third conjugal status to unmarried heterosexual couples in order not to create any difference in treatment.

CONCLUSION

Members and allies of the Quebec Coalition for the Recognition of Same-Sex Spouses have filed some thirty briefs with the Parliamentary Commission on Civil Union. All underline the importance of granting same-sex couples and their children equality in law and equality in status. The Commission will hear testimony from children of same-sex couples and from numerous lesbian mothers, along with arguments from churches, experts, and major non-govern-mental organizations. It is too soon to know whether the Quebec Government will bring substantial modifications to its draft bill in order to bring it more in line with the princi-ple of equality. However, one thing is clear -- Quebec's cur-rent pre-election climate favours some degree of progress.

Irène Demczuk is the Coordinator of the Quebec Coalition for the Recognition of Same-Sex Spouses. For more information, please contact Irene Demczuk, at idemczuk@ supernet. ca.

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

Feminist Perspectives on the Draft Federal Assisted Human Reproduction Act

In May 2001, former Health Minister Allan Rock publicized draft federal legislation on assisted human reproduction (AHR) (Health Canada documents on AHR, including the draft Act, can be found at: http://www.hc-sc.gc.ca/english/pro-tection/biologics_genetics/reproduction/index.htm).

The draft Act represents the culmination of a lengthy movement toward the regulation of reproductive technology in Canada. In 1989, the Royal Commission on Reproductive Genetic Technologies was mandated by Health Canada to engage in a nation-wide consultation. In 1993 the Royal Commission released its report containing 293 recommendations, including a call for legislation. A voluntary moratorium was declared by Health Canada in 1995. The moratorium still stands and prohibits substantially the same practices that would be prohibited under the draft Act. In 1996, Bill C-47, An Act Respecting Human Reproductive Technologies and Commercial Transactions Relating to Human Reproduction was introduced, however it died on the order paper in 1997 with the dissolution of Parliament.

Rather than introducing the Bill to the House of Commons for first reading, draft legislation was sent directly to the Standing Committee on Health to analyze the document and to lead "a non-partisan dialogue with Canadians." The Standing Committee held hearings on the draft Act and released its report in December 2001 (available online at: http://www.parl.gc.ca/InfoCom/CommitteeReport.asp?Language=E&Parliament=8&Joint=0&CommitteeID=147).

Reproductive technologies raise several issues for women since the technologies are primarily applied to women's bodies. NAWL, the National Action Committee on the Status of Women, the DisAbled Women's Network of Canada, and the Feminist Alliance had the opportunity to make submissions to the Standing Committee in 1996-1997 regarding Bill C-47, and the Lesbian Mothers Association of Quebec, the Canadian Women's Health Network, and the National Council of Women of Canada made submissions on the current draft Act. Along with testimony on the current draft Act, feedback on Bill C-47 is also referred to below where the issues raised by the two documents are substantially similar.

A description of the Act is outlined below, followed by a brief discussion of some key issues it raises for women.

STRUCTURE OF THE ACT

The draft Act prohibits 11 activities on threat of criminal sanction, including the cloning of human beings, creating an embryo solely for research purposes, sex selection processes, and commercial surrogacy arrangements.

The draft Act would control the following activities (i. e. one would need a licence to do them):

1. Alter, manipulate or treat any human reproductive material for the purpose of creating an embryo or facilitating human reproduction;
2. Make use of any in vitro (outside of the woman's body) embryo or part of one for the purpose of research or the prevention, diagnosis or treatment of a disease, injury, or disability;
3. Collect, store, transfer, destroy, import or export any sperm, ovum, or embryo for a purpose referred to in (1), or an embryo for a purpose referred to in (2);
4. Create chimeras (an organism derived from the mixture of human and animal cells), or combine animal and human genes;
5. Reimburse a donor of sperm, eggs, cells, or genes; reimburse someone for expenses incurred in the creation or maintenance or transfer of an in vitro embryo; reimburse a surrogate mother for expenses incurred in relation to her pregnancy.

The draft Act also provides for the development of a registry to collect information on sperm, egg and embryo donations in order to make it possible for children conceived with donated reproductive material to learn about their medical history.

Health Canada contemplates the development of regulations with respect to several issues, including informed consent, safety and counselling requirements, the number of embryos that may be transplanted into a woman after in-vitro fertilization, and rules governing research activities.

Health Canada anticipates that a regulatory body will be set up to implement the proposed legislative regime. The Royal Commission recommended that the regulatory body operate at arms length from government, be comprised predominantly of women, and include diverse representation.

CRIMINALIZATION OF WOMEN

The proposed Act would prohibit the following activities on threat of criminal sanction:

1. Cloning of human beings
2. Germ-line genetic alteration (changing the genetic code such that the modification is passed on to descendants)
3. Development of an embryo outside a woman's body beyond the accepted 14-day limit
4. Creation of embryos solely for research purposes
5. Creating an embryo from another embryo or fetus
6. Transplanting reproductive material from animals into humans
7. Use of human reproductive material previously transplanted into an animal
8. Gender preference (i. e. action taken to increase the probability of a particular sex)
9. Sale and purchase of human embryos
10. Purchase, barter or exchange of human gametes (sperm or eggs)
11. Commercial surrogacy arrangements

Not only does the Act prohibit doing any of the activities listed in numbers 1-8, it also prohibits a person from paying or offering to pay for those activities. The penalty for these offences, if the Crown proceeds by way of indictment, is a maximum $500,000 fine or a 10-year prison term, or both.

Bill C-47 criminalized many of the same activities that are criminalized under the draft Act. In their submissions on Bill C-47, NAWL and other feminist groups objected to the criminalization of surrogacy, the sale of gametes and embryos, and sex selection, as these could be used to restrict women's autonomy, and to criminalize women already under social and relationship pressure.( available online at: http://www.parl.gc.ca/committees352/srta/evidence/07_97-04-10/srta07_ blk101.html)

NAWL argued that the criminalization provisions are inflexible and invasive and create the danger that these practices will go underground. In addition, the criminal law tends to be more harshly used against disadvantaged members of society. NAWL agreed that these practices should be prevented, but suggested that this be accomplished through the regulatory licencing system.

In its submissions on the draft Act (available online at: http://www.parl.gc.ca/InfoComDoc/37/1/HEAL/Meetings/Evidence/healev44-e.htm), the Lesbian Mothers Association of Quebec (LMA) explained that all fertility and sperm donor clinics in Quebec serve married women only. This means that lesbians and single women are precluded from accessing these services. Because of the difficulty in finding a Quebec doctor to assist, and the expense of shipping frozen sperm from another province, many lesbians turn to "known" donors. "Known" can mean anything from a trusted friend to an acquaintance, to a complete stranger contacted through personal ads.

Although the LMA did not object to criminalization, nor did any women's organization who testified regarding the draft Act, it is difficult to overlook the fact that if the draft Act is passed, a lesbian who pays to obtain sperm could be sentenced to up to ten years in prison. The same harsh penalty could be invoked against a woman who pays to undergo a sex-selection process such as sperm sorting, potentially without regard to the social and relationship context in which she makes such a decision.

In its testimony in response to the draft Act, the Canadian Women's Health Network (CWHN) strongly concurred with the complete prohibition of commercial use of human beings or their body parts. (CWHN's testimony is available online at: http://www.parl.gc.ca/InfoComDoc/37/1/HEAL/Meetings/Evidence/healev45-e.htm and a summary is available at: http://www.cwhn.ca/hot/policy/reproduction.html)

Although it is important to discourage sexist practices and the commodification and exploitation of women, it is clearly questionable whether criminal sanctions should be invoked to penalize women for exercising reproductive autonomy within the current social context.

DISCRIMINATION

Despite the fact that the Royal Commission Report recognized that many clinics engage in discriminatory practices, the draft Act does not prohibit discrimination. Although human rights legislation prohibits discrimination, the resolution of a human rights complaint can be a lengthy process and is not proactive, but rather, is primarily complaint-driven.

The fact that discriminatory trends continue today is evidenced by the testimony of the LMA who recommended that the legislation include a specific provision stating that all women must have equal access to fertility clinics and sperm banks regardless of sexual orientation, marital status, or fertility status. However, the Standing Committee did not take up this recommendation in its report.

SURROGACY

The draft Act prohibits commercial surrogacy arrangements, but provides that a surrogate mother can be reimbursed for expenses incurred in relation to her pregnancy. The Royal Commission, on the other hand, recommended that surrogacy arrangements be prohibited under all circumstances.

As Martha Jackman, a law professor at the University of Ottawa, indicated in her testimony regarding the draft Act:

Non-commercial surrogacy arrangements have the same potential for preying upon the vulnerability of gestational mothers as commercial arrangements do. Women are under social, economic, and family pressures to enter into these types of arrangementsé[ and all surrogacy arrangements should therefore] be discouraged at all costs.

(Professor Jackman's testimony is available online at: http://www.parl.gc.ca/InfoComDoc/37/1/HEAL/Meetings/Evidence/healev43-e.htm.) The CWHN makes the same observation and urges that a moratorium on non-commercial surrogacy arrangements be put in place.

The Standing Committee recommends that provinces and territories amend legislation to recognize the birth mother as the legal mother. If acted on, such changes could afford significant protection to birth mothers and would make it clear that surrogacy arrangements have no legal force, as was held in the 1988 United States case of Re. Baby M (1988 109 NJ. 396,537 A2d 1227, online at: http://plague.law.umkc.edu/cases/cloning/baby_m.htm). In that case, the court held the surrogacy contract was invalid because it was essentially an attempt to circumvent the adoption regime. The court also noted that surro-gacy contracts require a mother to commit to surrendering her child before she knows the strength of her bond with her child.

EUGENICS

Although the draft Act specifically prohibits sex selection, it is silent with respect to selection on the basis of (dis) ability. Indeed, the Royal Commission was quite harshly criticized for taking an antidisability approach and the Standing Committee report does not speak to the issue of eugenics.

The DisAbled Women's Network (DAWN), NAWL, and other women's organizations raised concerns about the lack of attention to eugenics in Bill C-47 (DAWN testimony online at: http://www.parl.gc.ca/committees352/srta/evidence/06_97-04-09/srta06_blk101.html) In its testimony in response to the draft Act, the CWHN recommended restrictions on pre-implantation diagnosis until questions associated with such diagnoses have had full and open public discussion, and guidelines for regulation are firmly in place.

INFORMED CHOICE

The issue of informed choice has been raised by most women's organizations in their comments around Bill C-47 and the draft Act. This issue is central because of the apparent lack of information that may be offered to women who undergo AHR procedures. For instance, there is a need for the provision of information and obtaining consent for the use of "left over" gametes (and embryos) for research purposes. In addition, there is lack of standardization in the reported "success" of in vitro fertilization (IVF), resulting in a lack of clarity around whether a clinic is reporting the percentage of conceptions, or the percentage of live births, and also a lack of information around which types of infertility IVF is most appropriate for (many women undergo the invasive procedure of IVF in response to male factor infertility). In fact, concerns around the use of the technologies have led the CWHN to suggest what one would think would be an obvious approach to health care: that AHR operate under the precautionary principle so that when there is uncertainty about an activity, the onus is on the provider to demonstrate lack of harm before engaging in the procedure.

The CWHN emphasized that regulations to the Act must ensure that informed choice is a fundamental principle. The CWHN also recommended that counseling by a neutral third party be a condition of informed consent, and that individuals be advised of any potential or future commercial use of an embryo or its cells.

CONCLUSION

Reproductive technologies raise both opportunities and concerns for women. Legislation in this area would clearly offer necessary protections for women who access these services. However, legislation may also threaten women's reproductive autonomy.

As the CWHN points out, there are critical policy, social, and resource issues that cannot be addressed by legislation. Questions remain as to why adoption is not a feasible option in various circumstances for a number of reasons, including financial reasons. Who will be able to afford access to reproductive technologies since many clinics are run on a for-profit basis? Why is the demand for fertility treatment so strong, and what does this tell us about the need for attention to prevention of infertility, or more specifically, the allocation of resources for the maintenance of good health?

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

Custody and Access Alert

by Andrée Côté

This spring, the federal government will table a report to Parliament on proposed changes to the Divorce Act, relating to custody, access and child-support. This will be an important phase in the process started in 1997 when, in exchange for Senate support for the Child Support Guidelines, the Minister of Justice agreed to create the Special Joint Committee of the House of Commons and the Senate on Custody and Access. This Committee was swayed by the emotional -- at times, hysterical -- presentations from the "fathers' rights" lobby, and at times, some of its prominent members were explicitly hostile to women's rights advocates. Not surprisingly, the recommendations of this Committee, released in 1999 in the report entitled "For the Sake of the Children," clearly supported the fathers' rights agenda. Recommendations included mandatory joint custody and shared decision-making, maximum contact, parenting plans and mandatory mediation, coercive sanctions targeted against the "non-cooperative" parent, and criminal sanctions against women who make "false allegations."

The lack of balance and sound research led to widespread criticism of the report, and the minister of justice promised further consultations on proposed law reform options. In Spring 2001, the Department of Justice and the Federal/ Provincial/ Territorial Family Law Committee released a consultation document entitled "Custody, Access and Child Support in Canada: Putting Children's Interests First." NAWL and other provincial and national women's equality-seeking organizations decided to boycott these consultations, to protest the total absence of any gender-based analysis, and to mark our dissatisfaction with the undemocratic aspects of the consultation. In collaboration with the Ontario Women's Network on Custody and Access, we developed an extensive brief to the FPT Family Law Committee, that we sent to the minister of justice. An executive summary of the brief was also sent to all provincial Ministers of Justice. (A copy of this brief can be obtained at the Web site of the Ontario Women's Justice Network at: http://www.owjn.org). In November 2001, consultants tabled the report of this consultation (available on the Department of Justice Web site http://www.canada.justice.gc.ca/en/ps/cca/index.html). The Department of Justice is expected to release a report to Parliament on custody, access and child support before May 1, 2002.

Women across Canada and in Québec will be on a state of alert when this report is tabled. In light of the current neo-liberal trends of privatization and cuts to social programs, and the tendency to strengthen fathers' rights, the stakes behind the reform of the Divorce Act are very high. There is a real risk of gradually reverting back to a patriarchal model of male domination and female subordination in the family, in the name of the "best interests" of the children and the (formal) equality of the fathers. Making joint custody and shared parenting mandatory, enforcing a rule of "maximum contact" between father and children and imposing a "friendly parent rule" can all be used by abusive or dominating men to bolster their power over ex-wives, forcing them to remain in oppressive relationships.

NAWL and other feminist organizations are asking the federal, provincial territorial governments to ensure that changes to family law be made not only in the best interests of children, but also that they not jeopardize the autonomy and equality interests of women in the family. We believe that government policies must promote women's equality if Canada is to live up to its Charter obligations and to its commitments made in the Beijing Platform for Action and other international instruments.

Women will be organizing across the country to carefully analyze the proposals that the Department of Justice will put forward, and to develop a lobby campaign to target federal and provincial cabinet ministers, MP's and provincial members of the legislature. In Ontario, for example, NAWL is working with the Ontario Women's Network on Custody and Access. We are developing a campaign for activists to get training on the current law and problems with custody, access and child-support, so that women will be in a good position to analyze the changes that will be proposed by the Department of Justice in the spring. This initiative will involve two sets of provincial meetings in French and in English, as well as specific meetings in Toronto in the immigrant women's community, and in Northwestern Ontario particularly in the Aboriginal women's communities. We hope these result in a collective response, including a brief, to the proposed changes. NAWL also wants to collaborate with other provincial networks; we are planning a "strategic workshop" at our 14 th Biennial Conference in Ottawa in March.

More information on this campaign will be available in the weeks to come. Please visit NAWL's Web site at: http://www.nawl.ca

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.

Métis Women and Aboriginal Self-Governance: Entrenching Inequality Through the Devolution of Discrimination

By Kathleen A. Lahey

Like Inuit, status Indian, and non-status women, many Métis women face extreme and lifelong poverty, labour market discrimination, and tremendous barriers to education, political representation, health resources, and other social programming. Métis women also experience high rates of unemployment. These forms of inequality are the legacy of generations of genocidal and deeply sexist state policies that have affected all Aboriginal peoples.

The manner of the federal government's devolution of its constitutional responsibilities, in a purported move toward Aboriginal self-governance, is a less visible cause of the disadvantaging of Métis women. In a series of program-specific devolution contracts that date back to the early 1990s, the federal government has been handing over funding and program authority to selected Aboriginal groups that it considers to be representative of the main sectors of the Aboriginal population. Not surprisingly, these groups -- the Assembly of First Nations (AFN), the Métis National Council (MNC), and the Inuit Tapirisat (ITC) -- are all male-dominated, and are often hostile to women's issues, women's interests, and even to women leaders themselves.

The long-term impact of this sexist model of self-governance is largely hidden by what appears to be increased acknowledgment that Aboriginal women as a class are subject to severe forms of disadvantage, and that Inuit, Métis, and status and non-status Indian women each face very different obstacles due to their distinct histories and identities. As early as 1994, Mr. Justice Sopinka of the Supreme Court of Canada bluntly stated that "Aboriginal women... face racial and sexual discrimination which impose serious hurdles to their equality" (Native Women's Association of Canada v. Canada (1994), 119 D. L. R. (4 th ) 224).

Even though the federal government has historically taken the position that "Métis" peoples do not fall within its sphere of responsibility because they are not "Indian" within the meaning of section 91( 24) of the British North America Act, 1867 (the courts have held that Inuit peoples are), section 35 of the Constitution Act, 1982 declares unequivocally that Métis, Indian, and Inuit peoples are all "Aboriginal peoples." The groundbreaking report of the Royal Commission on Aboriginal Peoples (RCAP), of which Madam Justice Bertha Wilson was a member, documented obstacles faced

by Métis, Inuit, and Indian women in detail. Subsequent studies and consultations carried out by Status of Women Canada, the Department of Justice, and Health Canada have taken, as their starting point, the federal commitment to redressing the plight of Aboriginal women by addressing the distinct needs of Indian, Métis, and Inuit women.

To date, it has become clear that the rhetoric around recognizing the unique and distinct needs of Métis, Indian, and Inuit women has had almost no impact whatsoever on the model of Aboriginal self-governance that has been evolving since the early 1990s. Although the Métis National Council of Women (MNCW) has been actively representing the needs and interests of Métis women since it was formed in 1992, every time the federal government has begun the process of devolving another area of federal programming to Aboriginal groups through funding and management contracts, two things have happened: the MNC has refused to agree to enter into negotiations with the government if the MNCW is permitted to participate, and the government has refused to permit the MNCW to participate in the discussions, negotiations, contracts, management, and contract administration.

The areas of federal programming that have already been affected by this restructuring and devolution include health and healing, justice, job training and employment creation, the Riel reconciliation talks, negotiations over the directions to be taken in developing the government's "community-based" model of "self-governance," redress of past discrimination, language and heritage, and renewed constitutional discussions. As each new area of devolution is identified, and devolution agreements are generated, Métis women are pushed further away from the so-called "representative" structures with which the federal government claims it is dealing. They fall further behind in the development of the management, administrative, and leadership capacities that groups must show in order to be permitted to "transition" to "self-governance."

Both Métis and Inuit women are at a particular disadvantage in this process. In the early 1990s, the Native Women's Association of Canada (NWAC) sued the federal government for the right to participate in the funding and participation agreements the government had struck with the AFN, ITC, and MNC that enabled these groups to "represent" Aboriginal communities in the process of constitutional renewal. Although NWAC failed to persuade the Supreme Court of Canada to order the government to include NWAC in these funding arrangements, it did manage to establish that excluding Aboriginal women from such negotiations was at least litigable (Native Women's Association of Canada v. Canada). If the Department of Justice had not succeeded in delaying the appeal until after the actual constitutional process had ended, NWAC might have established even stronger legal doctrine on this issues.

As a result of this litigation, now NWAC is usually invited to participate in devolution discussions, negotiations, and, to a limited extent, funding agreements in some areas. Ironically, the federal government is now saying that to the extent that the MNC does not perhaps represent the interests of all Métis women and men, NWAC, and maybe even the Congress of Aboriginal Peoples (which also receives small funding contracts in some situations), ensure additional representation for Métis women.

Beginning in the late 1990s, both the MNCW and Pauktuutit, which represents Inuit women, began to initiate similar Charter challenges to the devolution model of self-governance. These proceedings have challenged devolution agreements from which the MNCW and Pauktuutit have been excluded in the areas of employment and job training, constitutional, and health. So far, these proceedings have been met with protracted procedural challenges. This procedural wrangling has made it possible for the federal government to claim, as it did in the NWAC constitutional challenge, that failure to get to the hearing stage during the life of the funding contract (which can often be as short as one to three years) renders such challenges moot (Métis National Council of Women v. Canada (Attorney General), [2000] F. C. J. no. 196 (T. D.), aff 'd [2001] F. C. J. No. 1761).

There is little doubt that when these Charter challenges can actually be heard by the courts, the short-term and long-term effects of devolving government funding and authority to male-dominated and sexist non-governmental groups will be found to be discriminatory. But in the meantime, the process of exposing and litigating the devolution of discrimination has become yet another way in which the historical disadvantaging of Métis women is being preserved for the future even as the essential contours of Aboriginal governance are undergoing radical transformation.

For more information on this area, please contact Sheila Genialle, president of the MNCW at info@ metiswoman. ca, or Kathleen Lahey, counsel for MNCW at kal2@ qsilver. queensu. ca

Kathy Lahey is a professor at Queen's Faculty of Law, and acts for the MNCW in its Charter litigation against the federal government.

Cites: Native Women's Association of Canada v. Canada (1994), 119 D. L. R. (4 th ) 224, per Sopinka J., McLachlin and L'Heureux-Dubé JJ. concurring as to result.

Métis National Council of Women v. Canada (Attorney General). [2001] F. C. J. No. 1761, 2001 FCA 357 (C. A.) (Court File No. A-209-01, November 21, 2001), per Stone, Evans, and Malone JJ. A., aff 'g [2000] F. C. J. no. 196 (T. D.) (Court File No. T-1804-98, November 28, 2000), per Pelletier J.

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

POSITION AVAILABLE

Trustee for the National Association of Women and the Law (NAWL) Charitable Trust for Research and Education

We are seeking applications to fill a forthcoming vacancy on the Board of Trustees for the NAWL Charitable Trust for Research and Education. The Charitable Trust for Research was established in 1984 for the purposes of:

(a) the promotion and dissemination of knowledge and understanding among the general public of the status and role of Canadian women in society;

(b) research and education regarding legal issues as they affect Canadian women within the global community in all aspects of their social, economic, and political life;

(c) preparation and dissemination of such works by all appropriate means;

(d) assistance by charitable means to persons in the protection of their civil rights and liberties;

(e) the relief of poverty.

Donations to the NAWL Trust are tax creditable and the Trustees are responsible for decisions regarding the allocation of funds. The Trust's recent activities have included the sponsorship of an annual essay contest for students at post-secondary institutions, and the development of Gender and the Law: An Introductory Handbook for Law Students.

The Board of Trustees is composed of 5 members appointed by NAWL's National Steering Committee (NSC). As set out in the constitution, the composition of the Board of Trustees must include two NSC members, two past NSC members, and one member-at-large who has not been a member of the NSC.

We are seeking applicants to fill the member-at-large position for a term commencing May 2002 and ending May 2004.

To be eligible an applicant must be a member of NAWL, in good standing for at least one year. The NSC will select and appoint from amongst qualified candidates. Meetings of the Trustees are generally held by conference call and the time demands are not onerous.

If you wish to apply, please write to us stating your interest and qualifications for the Trustee position by April 15, 2002.

We would particularly welcome applications from Aboriginal women, women of colour and women with disabilities.

NAWL
1066 Somerset West, suite 303,
Ottawa, ON, K1Y 4T3

Tel: 613-241-7570
Fax: 613-241-4657
email: info@nawl.ca

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

Poverty is a Human Rights Violation

by Shelagh Day

Longtime members and supporters of NAWL, Gwen Brodsky and I have launched a new project dedicated to strengthening the rights of the poorest people, to have the right to social and economic security recognized by law. As well, this project is intended to increase the capacity of legal and community advocates to argue for the realization of those rights.

Canada is a signatory to international human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women, which require governments to address conditions of poverty, and the social and economic inequality experienced by women and other disadvantaged groups. Government social programs are a central means of fulfilling the rights set out in these international human rights instruments. But changes or cuts to social programs which threaten the social and economic security of women and other disadvantaged groups in Canada are not necessarily understood by governments, courts, and tribunals as potential violations of rights.

There is also a lack of understanding of the connection between rights to social and economic security and the right to equality. The group denoted as "people living in poverty" is predominantly composed of women, Aboriginal people, people of colour, older people, and people with disabilities. Various forms of discrimination contribute to the poverty of these groups, and the realization of rights to social and economic security is essential to their achieving equality. Unfortunately, attempts to assert rights to social and economic security are often expressed in a gender-, race- and disability-neutral fashion which does not take into account the diversity or needs of poor people.

In recent years, United Nation's monitoring bodies for human rights treaties have expressed increasing concern about the need for enforcement of international human rights commitments within the domestic law enforcement regimes of State parties. The Supreme Court of Canada has affirmed the requirement that domestic law be interpreted consistently with international human rights law.

However, there are significant obstacles to overcome if courts and tribunals in Canada are to become effective venues for the enforcement of rights to social and economic security and substantive equality.

This is a central, but neglected area of law, and it is an important moment to devote resources to its development. An infusion of energy, research, analysis and community collaboration is needed to meet the challenges.

ACTIVITIES OF THE POVERTY AND HUMAN RIGHTS PROJECT

The Poverty and Human Rights Project is a project of the Canadian Human Rights Reporter Inc. in collaboration with the Centre for Feminist Legal Studies at the University of British Columbia. This project undertakes research, writing, and education on poverty as a human rights issue. The discussion, analysis, research and information generated by the project is intended to contribute to efforts in legal fora to promote interpretations of the Charter and other human rights instruments that will give life to rights to social and economic security. Activities include:

• Development of inventive, well-researched approaches to address the current barriers to domestic enforcement of rights to social and economic security;
• Development of methodologies most appropriate for advancing the realization of rights to social and economic security within different legislative frameworks, such as human rights codes and the Charter;
• Compilation of information on emerging case law related to rights to economic and social security; and of data to support submissions about the social and economic disadvantage of particular groups;
• Holding think tank consultations with community advocates, law students and interested academics focussed on developing approaches for addressing particular challenges that legal and community advocates are facing;
• Holding seminars on the right to social and economic security and the developing research of the project in conjunction with the Centre for Feminist Legal Studies and with community organizations;
• Providing stipends for law students and community advocates to support their involvement in the project's research and other activities;
• Creating a Web site that provides links to Internet-available information for those working on rights to social and economic security;
• Providing access to a repository of materials for those doing research or advocacy in this area;
• Disseminating the research through academic and community conferences;
• Conducting local community workshops to explain and promote understanding rights to social and economic security.

The Poverty and Human Rights Project is funded by the B. C. Law Foundation.

For more information email Shelagh Day at sheday@inter-change.ubc.ca

Shelagh Day is a human rights expert and advocate. She is the Special Advisor on Human Rights to NAWL.

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

Equality Coalition to Present Agruments in Brockie Case

In December 2001, a coalition of 12 equality-seeking groups in Ontario presented arguments in Brillinger v. Brockie, a case before the Ontario Court of Justice. The case was on appeal from the Ontario Board of Inquiry (Human Rights Code).

Scott Brockie, the owner of Imaging Excellence, a Toronto printing shop, refused to print business cards for the Canadian Lesbian and Gay Archives. Brockie says that he finds homosexuality detestable and that providing a service to a lesbian and gay organization offends his religious principles. The Ontario Board of Inquiry ruled on February 24, 2000 that the printing service was denied to the Archives on the basis of sexual orientation and ordered Brockie to do the printing and pay damages of $5000. (Brillinger v. Brockie, [2000] O. H. R. B. I. D. No. 3 (QL)). Brockie's appeal to the Ontario Court of Justice was heard in December; the decision is now reserved.

In taking on the case, the Equality Coalition's concern was that human rights protections would be substantially undermined if service-providers could refuse service to minority religious groups, people of colour, gays, lesbians and bisexuals, people with disabilities or other disadvantaged groups on the basis that providing equal service would offend the service-provider's personal beliefs. The Coalition argued in the Court of Justice that the case affects not only the lesbian, gay and bisexual communities, but also raises the broader question of whether there are circumstances in which service can be refused to members of a disadvantaged community.

The issues addressed in this appeal encompass the interpretation and interaction of rights guaranteed by the Canadian Charter of Rights and Freedoms, specifically freedom of religion, conscience, expression and association, and the right to be free from discrimination as provided for by the Ontario Human Rights Code.

"We take certain things for granted in our society, like the right to equal treatment and freedom from discrimination in the public marketplace. Those rights are guaranteed by law," says lawyer Susan Ursel of Green & Chercover, legal representative for the Coalition. "This case is an important opportunity for the court to re-affirm the values of human rights, equality and fairness which are the foundation of our society."

The Equality Coalition is made up of EGALE Canada Inc., the National Association of Women and the Law, the Canadian AIDS Society, the Canadian Association of Elizabeth Fry Societies, the Canadian Ethnocultural Council, the Coalition for Lesbian and Gay Rights in Ontario, the Council of Canadians with Disabilities, the Foundation for Equal Families, the Metro Tor onto Chinese and Southeast Asian Legal Clinic, the Metropolitan Community Church of Toronto, the Minority Advocacy and Rights Council, and the 2-Spirited People of the First Nations.

For more information, please visit http://www.egale.ca.

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Pursuing a Feminist Policy Agenda through Electoral Reform

by Nancy Peckford

Over the past few months NAWL has reviewed the issue of federal electoral reform, and how changes to the current federal system may facilitate a shift in the policy priorities of the Canadian Parliament.

NAWL is committed to advancing the policy document of the Canadian Women's March Committee, It's Time for Change: 68 Demands to the Federal Government to End Poverty and Violence Against Women. Few of the policy recommendations promoted by the women's movement were implemented by the federal government since the World March of Women in October 2000.

The lack of response to It's Time for Change by key decision-makers and elected representatives at bureaucratic and Parliamentary levels highlights the contemporary political limitations of Canadian feminist organizations.

Though many of the achievements of second wave feminism in Canada have relied upon women successfully pressuring multiple access points within the legislative, bureau-cratic and judicial structures of the federal state, the boundaries of legitimized political discussion have since shifted to exclude many equality-seeking women and their policy priorities. The women's movement is not regarded as constituting as significant a political threat as it once did. At the same time, national feminists are at odds with many of the policies and programs in which there is an increase of the state's role as a primary apparatus for market economies. Given this scenario, it is very unlikely that the rich legacy and ongoing practices of activism by diverse communities of feminist women will translate into concrete action from the Canadian Parliament without a direct challenge to our political system.

To address this phenomenon, NAWL examined three mechanisms for political reform in Canada: the establishment of a feminist political party, the implementation of legislated gender parity within the existing parties and the establishment of proportional representation within the federal electoral system. The examination of these options revealed the severe limitations of the federal riding system in Canada that is currently based on single member plurality constituencies, in which the candidate with the majority of the vote wins. This system discourages political parties from taking risks with less conventional candidates, such as grassroots activist women or women of colour, who may not have either the financial backing or 'established' networks to run a competitive campaign in which winner takes all.

As a result, many women are excluded from the formal political process at the nomination level. In fact, the number of women who have been successful in contesting nationwide constituency nominations has declined over the past decades.

Single member plurality districts also prevent the aggregation of interests that transcend geographic or party alignments. The success of a Feminist Party in Canada electing any members is highly unlikely given that popular support would not be sufficiently concentrated in any one riding to allow for a majority vote win.

Given this scenario, NAWL researched the adoption of a mixed member system. In this system voters would continue to elect a Member of Parliament for each constituency but additional seats would be distributed to parties according to the percentage of the national popular vote they attained. These seats would be filled according to a list system. Parties would prioritize individuals for office on the list who may not be successful via the current election route. These individuals would fill the extra seats. This one modification to the electoral system could eliminate the profound barriers to Parliamentary representation that single member plurality districts perpetuate.

NAWL also examined other national legislatures to determine whether the presence of greater numbers of women impacted policy choices. We discovered the increased presence of mostly feminist women facilitates significant changes in political culture, promoting women's participation in policy-making and legitimizing the experiences they bring to the legislature.

In most instances, however, this cannot happen without a critical mass of female members, which the United Nations has designated to be a minimum of 30% of any elected body. There has been a close analysis of Norway's legislature since provisions were made to increase the number of women in office. In addition to changing Norway's legislative culture, female representatives have occasionally formed cross-party coalitions to advance the interests of women's equality. In doing so, women were able to call upon 'a mandate of difference' or equality as a necessary rationale for transcending party or geographic allegiances.

In Canada, the existence of such multi-party coalitions of women have been impeded by the few numbers of women in Parliament and the severe party discipline elected Members confront. When female representatives have formed a coalition, as they did during the Mulroney government in 1989 when a Status of Women subcommittee was formed, they can successfully force action that might not otherwise be taken. The efforts and consensus reached by this all-women sub-committee resulted in the establishment of a National Taskforce on Violence against Women. Electoral reform would increase the possibilities for such collaboration among elected women with feminist policy priorities, many of whom are severely impeded from doing so at present.

Electoral reform is not marginal to political discussions in Canada. Given successive federal governments' inaction on the recommendations of the Royal Commission on Electoral Reform and Party Financing released in 1991, many organizations in civil society are beginning to seriously examine the possibilities for electoral reform.

In May of 2001 Fair Vote Canada, a national advocacy group, was established to facilitate a citizens' dialogue on the issue. The Institute for Research in Public Policy also held a national conference on Proportional Representation during the same month. Various labour unions are in the process of considering resolutions on proportional representation. Judy Rebick, former president of the National Action Committee on the Status of Women, has published a book, Imagine Democracy, on the subject.

As electoral reform appears to be on the verge of gaining some very real momentum, it is critical that equality-seeking women and organizations are central to the discussion. Women have a lot to gain from a reformed political system, but without sustained mobilization, any reforms may not explicitly include their interests.

For a copy of NAWL's discussion paper, Pursuing a Feminist policy Agenda through Electoral Reform, please visit http://www.nawl.ca

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Rethinking the Budgeting Process: A Call for Renewed Action

by Kim Brooks

THE PROCESS LEADING UP TO BUDGET 2001

NAWL has been involved in the budget-making process for years. Despite preparation and advocacy on our part, each year our submissions appear to have little effect on the policy choices ultimately made by the federal government. Perhaps it is time to rethink NAWL's approach.

Each year the federal government issues a call for submissions to the Standing Committee on Finance (House of Commons) to the public. They fax the call out to groups that have made presentations in the past and post it on their Web site.

The process for obtaining permission to present to the Committee is straightforward. If you send a written submission to the Committee by the deadline, you're on. You're then scheduled to meet with the Committee on a panel with other interested parties.

You talk to18 members of the Finance Committee for about 10 minutes. If you're lucky, there will be some women

members of the Committee in attendance, since there are approximately four women on the Committee.

This year, NAWL Executive Director Bonnie Diamond and I went before the Committee to make submissions on behalf of NAWL. We were on a panel with the Canadian Federation of Independent Business, the Canadian Trucking Alliance, the Cement Association of Canada, the Canadian Automobile Association, and the Canadian Alliance on Mental Illness and Mental Health!

Based on my experience over the past five years, I want to address three problems with the budget-making process.

The first problem with the consultation process is that most of the decisions are made even before they reach the Committee stage. For example, the Chair of the Committee, Maurizio Bevilacqua, announced before we began our submissions that the Committee was not considering any changes to its announced tax cut plan. But we know that any meaningful discussion about the allocation of government resources in times when fiscal restraint is considered important requires a discussion of a government's tax cut agenda. Without the "tax" side of the discussion, you're left simply making difficult choices between competing spending initiatives.

The second problem is illustrated by the list of "interested parties" scheduled with us. The discussion would be greatly enriched if we were paired with equality-seeking groups. That way we could ensure that the messages we deliver are consistent, to the extent that is possible. It would also mean that the Committee couldn't ignore the submissions of equality-seeking groups, by choosing to deflect their positions and address questions to groups like the Canadian Federation of Independent Business.

Related to both these concerns is the fact that women are excluded from the consultation process. Although the process is relatively open -- the Committee issues a general call for submissions, accepts written submissions without requiring in-person meetings, and consults in most of Canada's major centres -- the Committee makes no concerted effort to solicit the views of women or other equality-seeking groups. As a result, many of the groups that appear before the Committee do so because they have the required resources (time and money), and often because they have a past relationship with the Committee and have seen that lobbying the government can sometimes make a difference.

Finally, the third problem is that the Canadian budget does not reflect a serious commitment to gender equality. Once the consultation process is over, the Finance Committee releases a significant document describing its recommendations to the Minister of Finance in light of the hearings. The Committee's report is intended to assist the Minister of Finance in setting the policy agenda and specific policy choices reflected in the budget. This document never reflects a serious commitment to gender equality. The report this year, released in November, was appropriately titled Securing Our Future.

NAWL's key message for the Committee this year was: Good fiscal policy-making must take gender into account. In our written submission, we discussed the discriminatory effect of the personal income tax cuts on women, and critiqued the design of the caregiver credit. We argued that gender-sensitive budgeting may have resulted in better fiscal policy choices and more effective program design. Similarly, for example, in times of emotional stress, the concept of "security" could have included funding for mental health initiatives and homelessness that would have assisted women's economic and health security.

The report ignores Canada's commitment to gender-sensitive budgeting, and its international commitments to women's equality. We urged the federal government to consider recognizing UNIFEM's call that governments implement a gender analysis into the budgeting processes by 2015. As UNIFEM's Executive Director, Noeleen Heyzer, states, "Budgets matter because they determine how governments mobilize and allocate public resources. They are used to shape policies, set priorities and provide the means to meet the social and economic needs of all citizens. Budgets matter to women because they are an indicator of government commitment to address women's specific needs."

WHERE DO WE GO FROM HERE?

So, should NAWL abandon this process and focus efforts elsewhere? No. But we do need to rethink our involvement. The process is a valuable one, and the possible benefits are worth the frustration and effort.

First, in order to have our submissions be more than token, we need to ensure that there is wider and more diverse representation, that the equality seeking groups have hard-hitting presentations, and that the proposals are proactive instead of just reactive. NAWL has undertaken to work more actively on fiscal policy issues year-round, so that we can more easily respond to fiscal policy issues as they arise.

Second, in order to be effective, we need to present at the Finance Committee with other equality-seeking groups. We have been actively involved in the budget-process for years at NAWL, so we have numerous examples of our work to share with other groups. We should consider organizing budget submissions with other equality-seeking groups, and pressuring the Committee to hear us as a block.

Third, we need to see our work included in the final product. To this end, we need more publicity that the government is not living up to its commitments to conduct gender-sensitive budgeting, for example. There should also be more publicity about the ways in which our views are ignored, as are the views of international organizations, such as UNIFEM, who can criticize the budgeting process in a more global context.

I hope that in reconsidering our approach we are able to get more out of what could be a useful process.

Kim Brooks teaches torts and tax at Queen's University Faculty of Law and is a member of NAWL's steering committee

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Bill C-36: The Anti-terrorism Act

by Andrée Côté

At the urging of the United States after September 11 th , governments in Europe and North America adopted stringent anti-terrorism measures. Canada responded to the call by passing tough new legislation. Bill C-36, now the Anti-terrorism Act (S. C. 2001, c. 41, online at: http://www.parl.gc.ca/common/Bills_House_Government.asp?Language=E&Parl=37&Ses=1) received Royal Assent on December 18, 2001.

NAWL and the National Organization of Immigrant and Visible Minority Women of Canada voiced our concerns about Bill C-36 and its impact on the civil and political rights, and the equality rights of persons living in Canada. We presented our opinions to a special Senate Committee on December 6, 2001 (transcript available online at: http://www.parl.gc.ca/common/committee_SenProceed.asp?Language=E&Parl=37&Ses=1&comm_ id=90). The following is a summary of our comments. As there were no changes to the bill, these comments apply equally to the Act as passed.

Bill C-36 threatens human rights in Canada and does not strike the necessary balance between collective security and individual liberties. We fear the limitations on rights and freedoms will have a disparate impact on racialized minorities, immigrants and other historically disadvantaged communities in Canada. We are also concerned that it will restrict legitimate political protest in Canada, and will have a chilling effect, limiting free speech, freedom of association and political participation.

As an omnibus bill, C-36 integrates the anti-terrorist provisions into the Criminal Code, the Canada Evidence Act, the National Defense Act, the Access to Information Act, the Privacy Act, and other legislation. It therefore risks contaminating our basic legal safeguards and rules. Simply adopting a sunset clause is not sufficient because much harm will be done in the first years of the operation of the bill.

While we are relieved that the Minister of Justice amended the initially proposed definition of "terrorist activities," we think the current definition is still too vague, allowing for the arrest and detention of persons who are not terrorists.

Indeed, the definition of terrorist activities also includes an act or omission that causes "serious interference with or serious disruption of an essential service, facility or system, whether public or private." This definition is much too broad, and will result in confusion leading to the inappropriate characterization of activities as "terrorist acts." In addition, the introduction of the notion of intimidation with regard to "economic security" in the definition of a terrorist act is vague, inappropriate and may have untold ramifications.

Bill C-36 introduces the new concept of "facilitating" a terrorist activity into the Criminal Code. This new concept departs from the accepted and understood notions of aiding and abetting contained in section 21 of the Code. The concept of "facilitating" is not clear, and its introduction might "contaminate" the Criminal Code, bringing about confusion with respect to the interpretation of aiding and abetting. Indeed, the concept is so vague that it might dissuade lawyers from representing accused persons or groups out of fear of being accused themselves of providing a skill or expertise for the benefit of a terrorist group. This directly affects the most basic right to legal representation.

Bill C-36 allows for the creation of a government list of terrorist groups to include any entity that the Solicitor General has reasonable grounds to believe carried out, participated in, or facilitated a terrorist activity. Despite the fact that being placed on such a list will no doubt have drastic consequences for any organization, there are not adequate procedural safeguards to challenge the decision. On the contrary, the bill includes a presumption that if the Solicitor General does not respond within 60 days to an application challenging the placement of a group on the list, he is deemed to have decided to that the applicant will remain listed. Although the applicant may apply to a judge for judicial review of this "decision," the judge may examine in private all security or intelligence reports submitted by the Solicitor General if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person. The applicant only has a right to receive a statement summarizing the information available to the judge.

In addition, the judge may receive any evidence "even if it would not otherwise be admissible under Canadian law" and may base his or her decision on that evidence. There is no mechanism to appeal evidentiary decisions. This type of procedure is completely inconsistent with basic principles of fundamental justice, and is reminiscent of Star Chamber principles.

We are also very concerned with the preventive arrest and detention provisions of the bill, as well as the new investigative procedures. Persons under investigation are presently not compelled to answer questions outside the framework of a trial. The changes in the Bill represent a major expansion of investigative powers of law enforcement agencies. The right to silence is a hallmark of fundamental justice under common law and the bill's provisions effectively abrogate that right, forcing persons to speak and provide evidence against their will.

These provisions violate basic Charter protections, such as the right to silence. We are dismayed that this bill allows for arrest on mere suspicion. This is a highly subjective criteria that will allow for uncontrolled abuse. Given the current climate, it may also give rise to a wave of discriminatory arrests against racialized persons and groups.

The increasing secrecy of criminal trials and the expanded list of reasons why the public may be barred from aspects of a trial, along with bans on publication of proceedings are of great concern. Our worries are compounded by the power to exclude the application of access to information and privacy legislation in the interest of national security and protecting international relations. In addition, we consider that the provisions around disclosure of information regarding terrorist property offend the rights of clients to confidentiality and solicitor-client privilege. Indeed, the proposed provisions would subject lawyers to criminal charges for performing their professional duty to keep client information confidential. This would most certainly be a violation of solicitor-client confidentiality and privilege.

We are also apprehensive about the fact that the bill facilitates spying on Canadians by providing the Canadian Security Establishment with increased powers, without any provision for independent review or judicial scrutiny.

The sections prohibiting the financing of terrorist activities prevents fundraising on behalf of groups resisting oppressive regimes, or simply providing funds for community survival. The lack of protection from abuse of process in decertifying charitable organizations may also have a very negative impact on the capacity of communities to organize and provide essential support to their members.

Bill C-36 amends the Canada Evidence Act by abolishing sections 37 and 38, and replacing them with provisions that

would allow for the exclusion of evidence on the grounds of a "specified public interest" or because it may be "potentially injurious information" that could injure "international relations or national defence or national security." The new provisions allow for the complete exclusion of evidence in some cases, or the disclosure of only a part or a summary of the information. In addition, the bill provides that in making decisions on these issues, the court may receive into evidence anything that is appropriate "even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence." This reform is being proposed without any evidence that there are problems with the current provisions of the Canada Evidence Act that were adopted after extensive consultation, litigation and law reform work.

While we understand the need to protect Canadians from acts of terrorism, we ask the Senate to send a clear message to the House of Commons that these draconian measures, adopted in haste without time for a democratic debate and considered analysis, is unacceptable. This bill will profoundly alter Canadian law in many different domains, yet the government has not even established that we are faced with a real threat of terrorism.

As women and as feminists, we certainly understand the need to take action against terrorism. As a movement, we have been fighting against domestic sexual terrorism that forces approximately 100,000 abused women and children to flee from their home and seek refuge in shelters every year. Women know what terror feels like, and we have been urging our governments to take effective measures against violence against women for over 30 years. Yet we have never recommended that government infringe basic civil liberties to do so. Even though it is frustrating to see that abusers always benefit from the presumption of innocence, that guilty abusers are often freed because of procedural issues, and that it can be very difficult to obtain legal sanctions that effectively guarantee a woman's security, or that validate her experience as a victim, feminists have never called for the kind of measures that we now see in Bill C-36.

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

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The Canadian Gender and Trade Consultation

by Nancy Peckford

After the World Trade Organization wrapped up its meetings in the heavily patrolled city of Doha, Qatar this past November, Farah Khan, an observer, stated: "Compared with other international gatherings, Doha has been a remarkable and unrelenting gathering of male suits. From the opening plenary to the closing ceremony, men have dominated proceedings." Khan's comments point to the insidious phenomenon that the motives for and impacts of trade agreements are seldom evaluated from the vantage points of women.

Non-governmental organizations that focus on trade have difficulty grappling with the overwhelming and multiple effects of corporate led free trade. Few have been well equipped to focus upon how women's lives in particular are challenged and changed as a result. This is unfortunate as women's experiences have shown that corporate led trade agreements like the North American Free Trade Agreement adversely affected the quality of many women's lives and have undermined hard-won domestic commitments to women's equality rights:

"In the current international trading system women have been turned into producers and consumers of traded commodities and are even traded commodities themselves. Life support systems of household and communities have been damaged resulting in increasing burdens for women who continue to bear the social cost of reproduction. This is so because international trade that once was only a component of economic and social life now reigns supreme in the new global order."

(International Gender and Trade Network, Vol. 1, No. 5).

NAWL was invited to join in the Canadian Gender and Trade Consultation, a broad coalition of organizations that came together to address this issue in a Canadian context. Coordinated by the North South Institute and the Maquila Solidarity Network, and funded by Status of Women Canada, the Canadian Gender and Trade Consultation was designed to foster discussion between trade advocacy organizations, such as Common Frontiers and the Council of Canadians, and national women's organizations and their allies in the labour and anti-poverty movements. Also present were

international groups representing local and transnational constituencies, including the Association of Women and Development, and the International Gender and Trade Network. The aim of the weekend was to establish how organizations in Canada could enhance their capacity to evaluate trade issues from a gender perspective and participate in international coalitions, like the Hemispheric Social Alliance, that are committed to doing the same.

The primary difficulty in tackling women's equality interests within a trade context is the absence of accountable and empowered institutions at the international level. Despite the fact that many national governments are signatories to international accords on the civil, political and social rights of women, international trade agreements have regularly taken precedence over the human rights of women.

This is incredibly frustrating for domestic women's movements that after having spent decades struggling to secure commitments from their national governments now witness the displacement of these commitments by international economic agendas. As a result, trade agreements disempower, or in many cases, accommodate national governments' unwillingness to pursue women's equality, and severely impede their ability to maintain public services (many of which have provided stable, well-paying jobs for women's skilled labour), and act against corporations through the regulation of markets.

For example, in the current proposals for the Free Trade Agreement of the Americas, scheduled to be signed by the year 2005, four areas are particularly worrisome: 1) agricultural provisions that would displace domestic-oriented crop production on family farms through the elimination of farm subsidies thereby making it easier for multi-national corporations to invest money in non-traditional agricultural corporations; 2) the use of broad services language that may prohibit government subsidies for public services and have the effect of transforming health care, education and water into 'commodities' to be sold at the market; 3) Intellectual Property Rights language that promotes the exclusive use of legal patents and will compromise the use of 'community based knowledge' often held by women and aboriginal peoples; and 4) Foreign Investment provisions that will facilitate the rise in foreign-owned production and distribution via the establishment of Export Processing Zones (EPZ).

Although EPZs are often promoted as creating jobs for women, the jobs provide extremely low wages that are insufficient to support a family, and demand long hours and difficult working conditions.

All neo-liberal free trade agreements strive to increase access to local markets through provisions such as this. Free trade does not regulate markets so much as it creates new ones. As Marceline White, Women's EDGE, states these agreements "codify the increasing dominance of corporate-led free trade, which places profits and economic growth above basic human needs", including those of women and their families.

The organizations involved in December's Canadian Gender and Trade Consultation agreed to pursue additional funding for a follow up conference and to then apprise the Minister responsible for the Status of Women of the weekend's discussions. Further, three working groups were established to oversee developments in negotiations for the General Agreements on Trades and Services (GATS), monitor food security issues and evaluate the feasibility of a popular education campaign.

For more information, please contact NAWL.

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News from the National Association of Women and the Law

Volume 21, No. 1 Winter 2002

Winners of NAWL's Trust 15th Essay Competition On the Theme:

Women, the Family and the State

We are pleased to announce the winners of the 15 th Annual Essay Competition organized by NAWL's Charitable Trust for Research and Education:

1st prize ($ 750):

Préconiser l'instauration d'un système de santé privé: Sommes-nous en voie de miser sur l'atteinte aux droits à la santé et à l'égalité de la femme et de sa famille pour pallier au manque de ressources en santé publique? Par Carole St-Georges Sponsored by Stikeman Elliott, Toronto, Ont.

2nd prize ($ 350):

A Study of Ireland's Abortion Policy and the Significance of the X Case By Suzanne Bouclin Sponsored by Jamieson Sterns, Halifax, N. S.

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

JURISFEMME

Volume 21, No 1 Winter 2002

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 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
Office Administrator Pam Mayhew
Communications Officer Sharmila Biswas-Mistry

National Steering Committee
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
BC/Yukon vacant