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Six Ways to Kick-Start a New Policy Agenda for Women   by Shelagh Day
Six Ways to Kick-Start a New Policy Agenda for Women

Now that Canada has a government in which 50 percent of cabinet ministers are women, feminist expectations are running high.

At the top of any feminist wish list will be initiatives to repair the damage done under former prime minister Stephen Harper, a decade that a featured a series of program assaults that set back advancements on equality in Canada.

What follows are some policy initiatives that feminists will be looking to the new Liberal government to undertake, in the short term, to ameliorate some of the damage that has been done.

(Pictured above are Janette Corbiere Lavell of the Native Women’s Assocation of Canada, left, and Sharon McIvor, right, who took their complaint about discrimination in the Indian Act to the United Nations.)

Some of the initiatives described were part of the Liberal platform, others were not; but most could be implemented quickly and would improve the lives of women for years to come.

1. Discrimination in the Indian Act

In 2009, Sharon McIvor challenged some of the sex discrimination in the status registration provisions of Canada’s Indian Act. As a result of McIvor’s case, An Act to Promote Gender Equity in Indian Registration was passed, and an estimated 40,000 Aboriginal women and their descendants became newly eligible to register as status Indians.

Unfortunately, the Harper administration used the B.C. Court of Appeal’s narrow ruling to justify leaving some sex discrimination intact. The result of this narrow approach is that some 140,000 Aboriginal people are still denied status, solely because their Indian ancestor is a woman and not a man.

Sex discrimination was entrenched in the Indian Act 140 years ago, when Canada first defined an Indian as “a male Indian, the child of a male Indian, or the wife of a male Indian.”

For more than 100 years, Indian women, on their own, could not legally transmit Indian status to their children or grandchildren. Women also lost their Indian status if they married non‑Indians. Men with Indian status, however, could transmit status to their children and grandchildren. Male Indians not only did not lose their status when they married non‑Indians but endowed Indian status on their non‑Indian wives. Some of these provisions have been changed, but some sex discrimination against Indigenous women remains
in the act.

The Inter-American Commission on Human Rights and the UN Committee on the Elimination of Discrimination against Women (CEDAW) both concluded last year that, because of the social dislocation and trauma the act has caused, “Indian Act sex discrimination is a root cause of high levels of violence against Indigenous women and the … vulnerabilities that make Indigenous women more susceptible to violence.”

The UN CEDAW recommended that Canada amend the Indian Act to remove the sex discrimination completely. The UN Human Rights Committee repeated this recommendation last July.

Canada’s Indigenous women have been fighting this discrimination since the 1960s, and important Indigenous women leaders such as Mary Two-Axe Earley, Jeannette Corbiere Lavell, Sandra Lovelace and Sharon McIvor have lead the way. However, discriminatory provisions remain, and so the federal government
must act immediately to remove all sex discrimination from the Indian Act once and for all.

2. Court Challenges Program

Court Challenges Program, established in 1985, was once a vital expression of Canada’s commitment to the equality rights enshrined in the Constitution. It was a key mechanism for making those rights accessible to women and other marginalized groups because it provided funds to support test cases of national importance.

Unfortunately, the program has been a mere shadow of its former self since 2006, when the Harper government cut funds for any new equality rights cases. Now the Court Challenges Program should be brought back to life quickly. If Charter equality guarantees for women and disadvantaged minorities are to be more than window dressing in the Trudeau era and beyond, we need that support back.

Before 2006, the Court Challenges Program also provided an important forum for discussion and exchange on emerging human rights issues among grassroots equality rights and language rights groups. The program is critical to
advancing equality and diversity in Canada and is also important to fostering a healthy democracy.

3. Inquiry into Missing and Murdered Indigenous Women

A national inquiry into murdered and missing indigenous women was among the Trudeau administration’s first announcements, and it is crucial that this inquiry is done right.

The inquiry should include a human-rights framework, one that builds on the reports on the murders and disappearances that were issued by the Inter‑American Commission on Human Rights and the UN CEDAW. These reports, issued in January and March of 2015, found that Canada failed to respect, protect and fulfill the rights of Indigenous women to life, equality and security of the person.

The inquiry should also deal fully and honestly with Canada’s failures to safeguard the rights of Indigenous women and, in particular, with the failures of governments to meet their obligations, under international human rights law, to address the root causes of the violence, including the social and economic marginalization of indigenous women and girls.

In order to be successful, the inquiry must also examine thoroughly Canada’s failure to respect the rights of the families who have been affected by this violence. The inquiry must deal with nothing less than the impact of settler Canada on Indigenous women. It must examine how entrenched sexism and racism cause epidemic violence and death.

It is crucial that Indigenous women and their organizations are consulted before the inquiry begins and all the way along. The Native Women’s Association of Canada, as well as other Indigenous women’s organizations, will require adequate financial resources and opportunities to play a key role in the inquiry, which is expected to begin within a few months.

4. Pay Equity for Federal Civil Servants

In 2009, the Harper administration, as part of an omnibus budget bill, brought in legislation that drastically altered federal pay-equity protections for women public servants and weakened the regime for making pay-equity claims.

Prior to 2009, federal public-sector employees could make pay equity complaints under the Canadian Human Rights Act. This process was protracted and expensive. But, rather than improving the effectiveness of pay equity law, as was recommended by the federal Pay Equity Task Force in 2004, the Harper administration passed the Public Service Equitable Compensation Act, which severely limited the right to pay-equity for its own female employees.

This regressive legislation has not yet come into full force, and some legal experts have speculated that this is because officials have not been able to figure out how to make it workable.

Under the new act, pay equity is to be dealt with through collective bargaining. This makes pay equity for women a bargaining chip, thereby putting women union members in competition with male members over benefits that will form part of a bargaining package. This legislation also forces women to file complaints alone and actually stipulates that unions that support female members filing a pay-equity complaint can be fined $50,000.

The Public Service Alliance of Canada (PSAC) has challenged the constitutional validity of the act, arguing that it violates the constitutional equality rights of working women. Also, PSAC claims that the provisions that prohibit union assistance violate the right to freedom of association in Section 2 of the Charter.

In 2009, the Parliamentary Standing Committee on the Status of Women recommended that Harper’s law be replaced with proactive federal pay-equity legislation. The Trudeau government should repeal the act and introduce the proactive federal pay-equity legislation that female civil servants, and other federal sector workers, deserve.

5. Improve Access by Women to Legal Aid

Canada’s legal aid system is in crisis. In fact Beverley McLachlin, the chief justice of the Supreme Court, has said that  the most pressing challenge
for the administration of justice is ensuring that Canadians have access to it.

The Canadian Bar Association has also raised concerns that access to justice is dwindling and the issue is a gendered one. Civil law legal aid is mainly used by women, unlike criminal law legal aid, which is mainly used by men. The federal government ostensibly shares the cost of civil legal aid with the provinces and territories through the social transfer, which is about 12 billion dollars for
2015–16. However, the federal government no longer designates where social transfer money is spent by provinces and territories.

As a result, civil legal aid regularly loses out to other provincial priorities. For women, the cuts and restrictions applied to civil legal aid have been devastating. Women rely on civil legal aid, particularly for family law matters. However, when income thresholds for qualifying for legal aid are set at very low levels, or when legal aid coverage is restricted to cases involving domestic assault, most women cannot access legal aid.

As a result, more and more women appearing in court are unrepresented by a lawyer in family law matters. Because of this, they are often settling for less than they are entitled to receive.

Women also need civil legal aid for poverty law issues including housing, welfare, disability pensions or debt. But in some provinces, like British Columbia, civil legal aid for poverty law matters has been eliminated entirely. This means that for low-income women access to justice is severely restricted. These restrictions further deepen inequalities for Indigenous women, women of colour, women with disabilities, immigrant women and single mothers.

Unfortunately, a thorough review of legal aid is not in the mandate letter of Justice Minister Jody Wilson‑Raybould. However, this issue must be tackled if women are to enjoy access to justice and equal protection of the law.

6. Fund Women's Advocacy

Stephen Harper severely weakened the mandate and funding criteria for Status of Women Canada’s women’s program. As a result, women’s organizations were not able to obtain funds for advocacy, for lobbying of federal, provincial and municipal governments, or for research related to advocacy and lobbying during Harper’s tenure.

Also, the independent policy research fund, a small but important fund dedicated to research on issues of women’s equality, was cancelled by Harper.
The effect of these changes has been to muzzle the organized women’s movement and in, so doing, to severely diminish women’s capacity to participate in public policy debates on issues that affect them.

When it was established in 1976, the purpose of the women’s program was to ensure that women could engage with governments and participate in the development of public policies that would improve our lives and conditions.
The capacity of women to participate in political debate through community organizations is critical to a healthy democracy. Unfortunately, the mandate letter of Status of Women Minister Patricia Hajdu does not mention bringing back the policy research fund or include revising the funding criteria of the women’s program.

The Liberal government has promised to improve the functioning of democracy in Parliament. However, extra‑parliamentary democracy is just as crucial, and this is why public support for women’s participation in the democratic process must be renewed. 

Shelagh Day was the first president of the Women’s Legal Education and Action Fund (LEAF) and a founder of the Court Challenges Program of Canada. Currently, Day is a director of the Poverty and Human Rights Centre and
the chair of the human rights committee of the Canadian Feminist Alliance for International Action.