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British
Columbia Moves Backwards on Women’s Equality
Submission of the B.C. CEDAW
Group to the United Nations Committee on the Elimination of Discrimination
Against Women on the occasion of the Committee’s review of Canada’s 5th Report
| January 23, 2003
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ARTICLE 2
18. All governments in Canada hold out the Charter of Rights and
Freedoms as a major vehicle through which CEDAW obligations are
fulfilled. However, the Committee should note that in recent litigation
under the Charter addressing issues of women’s equal access to
social programs, and the inadequacy of welfare provision for young women
and men, the B.C. government has argued in court in favour of interpretations
of the Charter which would narrow the government’s obligations to
address women’s inequality.
Eldridge v. B.C., [1997] 3 S.C.R. 624.
[Tab 7]
Gosselin v. Quebec (Procureur general), [1992]
R.J.Q. 1647 (Q.L.) (C.S.). [Tab 8]
Autin (Guardian of) v. British Columbia (Attorney
General), 2002 B.C.CA 538 (B.C. Court of Appeal). [Tab 9]
Article 2(c): Legislated Protection Against Sex Discrimination
19. In October 2002, the Legislature of the Province of British Columbia
passed legislation that weakens the machinery for administering and enforcing
human rights, thereby contravening the obligation in Article 2(c) to establish
legal protection of the rights of women on an equal basis with men and to
ensure the effective protection of women against any act of discrimination.
20. A fundamental principle underlying human rights legislation in all
jurisdictions in Canada is that the elimination of discrimination is in
the public interest. Discrimination is understood to be an offense against
shared public values of equality and fairness for all individuals and groups.
Because of this, the elimination of discrimination has been understood to
require a multi-faceted approach, including education and preventive measures
as well as the processing and adjudication of complaints. Further, complaints
of discrimination have been viewed not as disputes between private parties,
but rather as matters in which the community as a whole has a stake.
21. One of the central features of the new legislation is the elimination
of the Human Rights Commission. Without the Commission, there is no
independent public body with a mandate to protect the public interest in
the elimination of discrimination, or to undertake preventive strategies.
There is no independent public body with a mandate to provide education,
conduct public hearings, make special reports to the Legislature, deal with
systemic discrimination, initiate complaints, investigate complaints, or ensure
that complainants receive legal representation at hearings. The human rights
system in B.C. has been reduced to a complaint adjudication system only,
and complaints have become a private matter between complainants and respondents.
Human Rights Code Amendment Act, S.B.C. c.
62, amending R.S.B.C. 1996, c. 210, online:
British Columbia Ministry of Attorney General
(date accessed: 29 December 2002). [Tab 10]
Canadian Human Rights Digest, (October 2002) Vol.
3, No. 7, p. 2 [Tab 11]
British Columbia Ministry of Attorney General, News Release 02:18, “Human
Rights Complaints Process Streamlined” (30 May 2002), online:
British Columbia Ministry of Attorney General
(date accessed: 6 August 2002). [Tab 12]
British Columbia Human Rights Commission website, online:
British Columbia Human Rights Commission
(date accessed: 6 August 2002). [Tab 13]
K. Bolan, “Liberals to Cut Human Rights Commission” The Vancouver Sun
(30 May 2002), online:
PovNet
(date accessed: 6 August 2002). [Tab 14]
S. Day, “Rolling Back Human Rights in B.C.” (2002) Canadian Centre for
Policy Alternatives at 10, online:
Canadian Centre for Policy Alternatives
(date accessed: 2 October 2002). [Tab 15]
22. The abolition of the Human Rights Commission impacts directly on
British Columbia’s compliance with its legal obligations under CEDAW.
Discrimination in B.C. society is experienced predominantly by women, people
with disabilities, Aboriginal peoples and visible minorities. Therefore,
the elimination of the Commission removes a central institution relied on
by women and other vulnerable members of British Columbian society to articulate
and defend their right to equality, and to prevent its perpetuation.
Friends of Women and Children in B.C., Report
Card, June 15, 2002, Vol. 1 No.3, online:
University of British Columbia Centre for Women’s Studies and Gender
Relations
(date accessed: 6 August 2002). [Tab 16]
British Columbia Human Rights Commission, Remaining Vigilant: Taking
Responsibility for Human Rights, 2001-2002 Annual Report, at 13, online:
British Columbia Human Rights Commission
(date accessed: 6 August 2002). [Tab 17]
23. The adjudicative body, the Human Rights Tribunal, is now the only
human rights mechanism. Because the Tribunal is a quasi-judicial body,
pre-hearing procedures to facilitate disclosure of documents and discovery
of other evidence are likely to be more legalistic, and more difficult for
complainants to manage on their own.
24. We note further that while the government claims that these changes
have been made in order to provide British Columbians with more direct
access to hearings of their human rights complaints, there is little reason
to believe that more complaints will receive full hearings, as the Tribunal
has the authority to dismiss complaints without hearing, and has not been
given an increase in resources to support more hearings. We also note that
the barriers to the use of human rights protections by girls have not been
removed. Girls can still claim human rights protection only through a guardian
ad litem .
25. The abolition of the Human Rights Commission removes any statutory
obligation on the part of the government to provide legal representation
for human rights complainants. In the past, it was the Commission’s role
to ensure that complainants who could not afford a lawyer received legal
representation when their complaints were heard by the Tribunal. While the
government of British Columbia has promised to set up a legal clinic so
that human rights complainants will continue to receive legal representation
as needed, legal services will now be provided under a private contract with
the Attorney General. Without the Commission there is no independent public
body with a mandate to ensure that adequate legal representation is provided,
and, most importantly, there is no statutory obligation to provide it.
S. Day, “Rolling Back Human Rights in B.C.”
(2002) Canadian Centre for Policy Alternatives at 15, online:
Canadian Centre for Policy Alternatives
(date accessed: 2 October 2002). [Tab 15]
26. The new Human Rights legislation also gives the Tribunal the authority
to make the mediation of a dispute mandatory. The use of mediation
has long been recognized as problematic for women, and can lead to unfair
settlements.
Human Rights Code Amendment Act, S.B.C.
c. 62, amending R.S.B.C. 1996, c. 210, online:
British Columbia Ministry of Attorney General
(date accessed: 29 December 2002). [Tab 10]
British Columbia Ministry of Attorney General, News Release 02:18, “Human
Rights Complaints Process Streamlined” (30 May 2002), online:
British Columbia Ministry of Attorney General
(date accessed: 6 August 2002). [Tab 12]
27. In sum, a recent paper issued by the B.C. office of the Canadian
Centre for Policy Alternatives, states:
So far, the government's approach to the
human rights system is consistent with its approach to the province's other
watchdogs and advocates, including the Information and Privacy Commissioner,
the Mental Health Advocate, landlord and tenants' offices, legal aid, [the
Child, Youth and Family Advocate, the Children’s Commission] and women's
centers. Cuts to these agencies will not make them more "effective," as the
government claims. Rather, the cuts make them less able to protect British
Columbians when they encounter government policies and actions that are unfair
or discriminatory. To diminish the capacity of the human rights system at
this moment is all too convenient for the provincial government, because
the human rights system is a potential vehicle for contesting cuts to other
services on the grounds that they will have a discriminatory impact on already
disadvantaged groups.
S. Day, “Human Rights Plunge into the Past” (2002) Canadian Centre for
Policy Alternatives, online:
Canadian Centre for Policy Alternatives
(date accessed: 6 August 2002). [Tab 18]
Articles 2 (d): Legal Aid
28. The government of British Columbia has cut funding for legal aid
by 38.8%. It has also specified what the remaining funds are to be
used for. Legal aid coverage is now provided only for criminal law matters,
Young Offenders Act matters, mental health
reviews, restraining orders, and child apprehensions. No services are provided
for family maintenance or custody disputes, except where there is evidence
that violence is involved. Direct services for poverty law matters, that
is for landlord/tenant, employment insurance, employment standards, welfare,
and disability pension claims or appeals, have been eliminated. Legal
services to prisoners have also been drastically reduced.
Legal Services Society, Backgrounder,
“Legal Aid Services and Tariffs Summary of Cuts” (25 February 2002), online:
Legal Services Society
(date accessed: 6 August 2002). [Tab 19]
29. Until now the legal aid system has provided legal assistance for
“a legal problem or situation that threatens the individual’s family’s physical
or mental safety or health, the individual’s ability to feed, clothe and
provide shelter for himself or herself and the individual’s dependents,
or the individual’s livelihood” (s. 3(2)(d) of the Legal Services Society
Act). Under this mandate, a legal aid lawyer would provide assistance
in a case like this:
A woman and her children are locked
out of their apartment because of a small amount of arrears in rent, due
to a delay in the receipt of an Employment Insurance cheque. The landlord
has removed all of her belongings and refuses to return them unless she pays
the arrears. She has nowhere to go.
30. Until recently an advocate could help this woman to obtain the benefits
to which she is entitled and to find immediate shelter for herself and her
children. However, this section of the Legal Services Society Act
has now been repealed, and these services are no longer available.
Legal Services Society Act
, S.B.C. c. 30, repealing Legal Services Society Act, R.S.B.C.
1996, c. 256, online:
British Columbia Ministry of Attorney General
(date accessed: 29 December 2002). [Tab 20]
31. Concern about the unfairness of these cuts to legal aid is widespread.
The Law Society of British Columbia passed a resolution on May 22, 2002,
stating that it had lost confidence in the Attorney General as a result of
these cuts to legal aid. Such censure by the Law Society is unprecedented
in Canada. Commenting on the elimination of all poverty law services,
the President of the Law Society of British Columbia said: “How cynical
is it to create legal rights and then deny the poor any means to assert those
rights? The government is making a mockery of equality before the
law.”
Law Society of British Columbia,
Benchers Bulletin, “BC lawyers pass vote of non-confidence in the Attorney
General,” resolution passed 22 May 2002, online:
Law Society of British Columbia
(date accessed: 6 August 2002). [Tab 21]
Law Society of British Columbia, News Release, “Law Society Condemns
Sacking of Legal Society Board” (22 February 2002), online:
Law Society of British Columbia
(date accessed: 6 August 2002). [Tab 22]
32. The elimination of poverty law assistance disproportionately affects
women, who make up the majority of poor adults. The end to legal aid
for poverty law matters will effectively deny legal representation to the
most vulnerable women in matters that affect their ability to pay for food
and shelter for themselves and their children.
M. Morris, Fact Sheet “Women and
Poverty,” Canadian Institute for the Advancement of Women, online:
Canadian Institute for the Advancement of Women
(last modified: March 2002). [Tab 1]
33. Also, research shows that women disproportionately need and use
legal aid for family law matters. Poor women in British Columbia seeking
spousal support or custody of their children, in situations which do not
involve documented violence, will now have to make settlements, or enter
mediation, or litigate without representation. Further, recent changes in
policies regarding the prosecution of spousal assault (see paragraph 57)
mean that fewer cases of spousal violence will be documented, narrowing
even further the number of women who will have access to legal representation
for family law matters.
Legal Services Society, Backgrounder,
“Legal Aid Services and Tariffs Summary of Cuts” (25 February 2002), online:
Legal Services Society
(date accessed: 6 August 2002). [Tab 20]
L. Addario, “Getting a Foot in the Door: Women, Civil Legal Aid and
Access to Justice” (1998) Status of Women Canada, online:
Status of Women Canada
(date accessed: 2 October 2002). [Tab 23]
Friends of Women and Children in B.C., Report Card, May 15, 2002, Vol.
1 No.2, online:
University of British Columbia Centre for Women’s Studies and Gender Relations
(date accessed: 7 August 2002). [Tab 24]
34. Further, the Ministry of the Attorney General has indicated that
as part of the new legal aid structures, the Ministry will work with the
Legal Services Society to expand the use of mediation, and other alternatives
to court processes. While mediation can be a useful tool in resolving disputes,
research has shown that when there is an imbalance in the power of the
two parties, unfair “resolutions” can result. Therefore, the context
of the dispute must be taken into account before mediation can be considered.
In particular, mediation is not appropriate for resolving family law matters
involving abuse. When mediation is used in this context, the potential
for intimidation makes a fair settlement unlikely, and the continued contact
between the parties increases the risk of further violence. Further, when
legal disputes involving unequal parties, as is the case for a woman and
her abusive husband or boyfriend, are taken out of the courts and resolved
in informal or non-judicial settings, those unequal relationships can be
perpetuated. Women will find themselves in increasingly weakened positions
when there is no court to uphold their legal rights and no public scrutiny
of settlements. These problems will become even more dramatic when
women are expected to participate in mediation or other informal processes
without legal representation or support.. Similar issues arise with respect
to the use of family conferencing to deal with girls’ allegations of physical
or sexual abuse in the family when these processes bring together the girl
and her abuser. By expanding the use of mediation and family conferencing
without reference to the needs of women and girls, the government of British
Columbia has taken steps that will deepen and perpetuate gender inequality.
British Columbia Ministry
of Attorney General and Minister Responsible for Treaty Negotiations, Service
Plan Summary 2002/03 – 2004/05 at 8, online:
British Columbia Ministry of Attorney General and Minister Responsible
for Treaty Negotiations
(last modified: February 2002). [Tab 25]
Research Advisory on the Provincial Cuts and Violence Against Women,
“Legal Aid: Anticipated Impact on Women who Experience Violence” (2002),
British Columbia Institute Against Family Violence, online:
British Columbia Institute Against Family Violence
(last modified: 10 April 2002). [Tab 26]
Article 2(c): Access to Court
35. Since 2001, the government of British Columbia has closed approximately
1/3 of the courthouses in the province. This brings the number of
staffed courthouses down from 68 to 44. The closure of courthouses will affect
access to justice for many British Columbians, particularly in rural areas,
where people will now have to travel long distances to attend court (see
paragraph 61). A report of the Provincial Court of British Columbia
states:
A large proportion of the
Provincial Court's work involves matters of an urgent or emergent nature,
such as child apprehensions, restraining orders, applications for peace
bonds …[often no-contact or restraining orders]…domestic violence cases,
and young offender matters. Such matters require accommodation within a tight
or legislatively mandated time frame, so Court and Registry accessibility
is of paramount importance.
Thus, lack of access to courthouses has a very specific impact on rural
women and on Aboriginal women living in rural and remote areas who experience
violence in their homes, because they will have to wait longer and travel
farther in order to obtain court orders to protect themselves and their
children. With judicial services centralized in urban areas, rural
women’s access to justice is significantly curtailed, and their legal rights
and safety put in jeopardy. Further, because of the closures, rural
women and girls and Aboriginal women and girls living in rural and remote
areas who have been charged with an offence are held in holding cells further
away from their own communities, for longer periods, and in harsher conditions.
British Columbia Ministry
of Attorney General and Minister Responsible for Treaty Negotiations, Service
Plan 2002/03 – 2004/05 at 4, online:
British Columbia Ministry of Attorney General and Minister Responsible
for Treaty Negotiations
(last modified: February 2002). [Tab 27]
British Columbia Ministry of Attorney General and Minister Responsible
for Treaty Negotiations, Service Plan Summary 2002/03 – 2004/05 at 8, online:
British Columbia Ministry of Attorney General and Minister Responsible
for Treaty Negotiations
(last modified: February 2002). [Tab 25]
Provincial Court of British Columbia Judiciary, “Preliminary Assessment
of Proposed Courthouse Closures in Provincial Court” (2002) at ii, online:
Provincial Court of British Columbia
(date accessed: 2 October 2002). [Tab 28]
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