Jane Doe's new op-ed on sexual assault

Jane Doe, who presents uOttawa law's  annual Greenberg lecture on sexual assault law and policy, has recently published an op-ed in Toronto Now.

Perspectives on Legal Responses to the Sex Trade II

Perspectives on Legal Responses to the Sex Trade II

 The Shirley Greenberg Chair in Women and the Legal Profession will present two events during the 2016-17 academic year showcasing a variety of perspectives on legal responses to the sex trade. Faculty members, staff, students, alumni and the broader University of Ottawa community hold very different opinions on the appropriate legal response to the sex trade in Canada, reflecting a spectrum of positions from abolitionism to de-criminalisation or legalisation. These events are intended to provide a venue for the respectful expression and debate of opinions along this spectrum.

The first event will take place in the fall term, on September 22^nd, 2016, and will feature three speakers whose positions reflect a diversity of abolitionist perspectives.  The second event, planned for March 29th, 2017, will reflect a variety of legalisation and de-criminalisation perspectives. The order of these events is dictated by the availability of the speakers, and does not reflect a hierarchy of ideas.

One of the most important roles of a university is to create an environment for the free, respectful expression and exchange of ideas. At the Faculty of Law we aim to foster a space of inquiry, learning, debate and exchange. These two events are designed to educate the members of the law school community on the relevant debates, and to provide a forum for respectful questioning and discussion.

Below you will find a series of links to information on the spectrum of proposed legal responses to the sex trade.

Amnesty International’s research and policy work on decriminalization (set in an international context).

Emily Bazelon writes about the history of difficult feminist discussions on the sex trade.  

Janine Benedet offers an abolitionist perspective.

The Open Society Foundations offers Ten Reasons to Decriminalize Sex Work.

The Social Action and Executive Committees of the Canadian Association of Elizabeth Fry Societies passed an abolitionist resolution.

Valuing Discourse: Senators Discuss INAC’s “Unstated Paternity” Policy

Valuing Discourse: Senators Discuss INAC’s “Unstated Paternity” Policy

By Lynn Gehl, Ph.D.

When Members of Parliament and Senators borrow, assimilate, or adopt gender-neutral language such as “unstated parentage” or “unnamed parent” when the discrimination is anything but, they potentially approve legislation that harms mothers and babies.

Prior to 1985 the Indian Act protected children born to mothers when their father’s signature was not recorded on their birth certificate in that they were considered to be an Indian. When the Indian Act was amended this protection was removed. What then resulted is the Registrar of Indian and Northern Affairs Canada (INAC) gained more control when processing applications in situations of unknown, unacknowledged, unrecognized, unnamed, and unstated paternity.[1] It was at this moment when power was more firmly in the hands of administrators rather than legislation where as a result INAC began to more easily apply its goal of the need to eliminate the Indian problem. The new low being, mothers and babies became the target.

At first there was no written policy, but eventually INAC posted on line its “unstated paternity” policy. While the name of the policy itself is an issue in that it clearly blames mothers, the policy guides people to have their birth certificate amended, or obtain a statutory declaration signed by both parents. Another option offered is a statutory declaration from the biological father’s family members.[2]

These options offered by INAC do not capture the lived reality of conception, birthing, and the failure of documents to understand the lived reality of abusive situations. For example, INAC’s policy does not account for situations of rape where mothers do not know the father best known as the offender; situations of domestic violence where mothers need to protect themselves and their child; and then there are situations where fathers refuse to acknowledge the child.

The process of naming is important to pay attention to because oftentimes power is inherent. The words people rely on shape the way people think, and therefore have the potential to shape remedies if needed. Of course this process of word use as shaping our thinking includes elected Members of the House of Commons and appointed Senators who make up the Legislative Branch of the Government of Canada.

My point is that while INAC names their policy “unstated paternity”, it is best to understand the situation from within the lived reality of mothers where “unknown paternity”, “unrecognized paternity”, “unacknowledged paternity”, and “unnamed paternity” are more appropriate word choices.

As many know, recently INAC tabled Bill S-3, An Act to amend the Indian Act. This Bill was a response to a 2015 Quebec court decision by Justice Masse[3] in the Stéphane Descheneaux, and the Susan and Tammy Yantha case.[4] Although she was embarrassed about the lack of consultation with interested parties in the development of the Bill, the Minister of INAC, Carolyn Bennett, moved the Bill forward.[5]

In late November through early December 2016, interested parties had the opportunity to speak to members of the House of Commons Standing Committee on Indigenous and Northern Affairs,[6] as well as to the Standing Senate Committee on Aboriginal Peoples.[7] Many of the parties such as Descheneaux, Sharon McIvor, the Legal Education and Action Fund (LEAF), and the Quebec Native Women Inc. were unhappy because of the lack of proper consultations where as a result the Bill failed to address all the sex discrimination in the Indian Act.

As it stands today, INAC has been granted an extension so proper consultations and reconsideration of the content of the Bill can occur.[8] Regardless, there was something rather peculiar I noticed as I listened to these House and Senate discussions specifically regarding the word choice when discussing the issue of unknown and unstated paternity. As many know I have been working on this very issue for over 31 years.

Perplexed and concerned with the word shifting process as I was I opted to complete an analysis of the language that interested parties, the Assistant Deputy Minister, the counsel for the Department of Justice, the Minister of Indigenous and Northern Affairs, and Senators relied upon when talking about the issue of “unknown and unstated paternity”.

When speaking with the House of Commons interested parties relied on the language of “unstated paternity”; “so-called unstated paternity”; “unknown paternity”; and “unacknowledged paternity”. This language correctly names the issue. Minister Bennett also relies on this language during these discussions.

When speaking with the Standing Senate Committee, INAC Assistant Deputy Minister Joëlle Montminy relied on the language of “undisclosed and unknown paternity”; and the lawyer for the Department of Justice Martin Reiher relied on “unknown parent” adding further, “which is usually an unknown father”. Bravo, like Minister Bennett they relied on language that closely represents the lived reality of Indigenous women; but this changed. See below and please pay close attention.

During these same Senate discussions interested parties, some of whom I mentioned above, relied on “unknown parents”, “unstated paternity”, and “other reasons for not identifying the father”; But one Senator, an important and potential ally relied on “unknown parent”. This is the beginning of the unfortunate language shift.

Again, a few days later during these same Senate discussions Montminy and Bennett now, in my opinion, more cognisant of their goal rely on “unstated paternity and parenthood” and “unnamed parent”. Unfortunately, the same Senator remained with using “unknown parentage”.

In sum, and my point is, the shift in language use during these important discussions from “unstated and unknown paternity” to the gender-neutral language of “unknown parentage” and “unnamed parent” was first introduced by the Minister and ADM of INAC, both of whom are guided by the goal of the need to eliminate status Indians. The danger of naming without critical thought is that it begins to shape the thinking of Members of Parliament and the Senators, potentially preventing them from understanding the sex discrimination that harms mothers and babies. It is really sad when women, mothers, and potential allies adopt the oppressor’s language as has happened during these discussions.

We must not allow the very people and organizations such as INAC who hold power over others to name reality in a way that is misleading and inadequate of the lived reality of oppressed people. I have come to know that sometimes gender-neutral language is just more of the same; more specifically, sometimes gender-neutral language is disguised patriarchy.

Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. Her book The Truth that wampum Tells: My Debwewin on the Algonquin Land Claims Process was published in 2014 with Fernwood. She has a new book coming out with University of Regina Press in the fall of 2017 called, Claiming Anishinaabe: Decolonizing the Human Spirit.

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[1] http://journals.sfu.ca/fpcfr/index.php/FPCFR/article/viewFile/187/204

[2] https://www.aadnc-aandc.gc.ca/eng/1334234251919/1334234281533

[3] http://www.canlii.org/en/qc/qccs/doc/2015/2015qccs3555/2015qccs3555.html

[4] http://www.dionneschulze.ca/wp-content/uploads/2015/09/2015-09-04_Lawyers-Weekly_Parliament-given-18-months-to-amend-Indian-Act.pdf

[5] https://www.thestar.com/news/canada/2016/11/30/carolyn-bennett-admits-bill-to-change-indian-act-was-badly-handled.html; https://www.youtube.com/watch?v=zgM9SKs7dLw

[6] http://www.parl.gc.ca/Committees/en/INAN/StudyActivity?studyActivityId=9201168

[7] https://sencanada.ca/en/committees/appa/studiesandbills/42-1

[8] http://www.cbc.ca/news/indigenous/court-extension-update-indian-act-1.3953515

Perspectives on Surrogacy 3

In December of 2017 the Greenberg Chair in Women and the Legal Profession held a panel on surrogacy, where several prominent feminist lawyers and academics discussed their perspectives. A large number of University of Ottawa Faculty of Law students attended the event, and many blogged about it as part of an assignment in first year property law. Over the next few weeks this space will feature the diverse opinions of a number of our students.

In May 2017 uOttawa law Profs Angela Cameron and Vanessa Gruben along with their colleague Alana Cattapan of Dalhousie University will host a two-day workshop on the law and policy of surrogacy in Canada featuring national and international experts. Several uOttawa law students will participate in this event, and we will post their reactions to the workshop here.

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Eman Jeddy*

Baby Mama Drama: What Canada can learn from California about Commercialized Surrogacy 

Canadian surrogacy laws are confusing at best and incomplete at worst. What is clear is that altruistic surrogacy is legal but commercialized surrogacy isn’t. Under section 12 (s. 12) of the Assisted Human Reproduction Act 2004, a surrogate mother can be reimbursed for out of pocket expenses, but cannot be paid to carry a baby for someone else^[1]. However, in the 12 years since the act was passed, Health Canada, the agency in charge of implementing the act, has yet to provide the regulations that define out-of-pocket expenses. The result is a legal grey area for intended parents, surrogate mothers, and third parties as to what costs can be legally reimbursed. The penalty for breaching s.12 can be as high as a 5-year imprisonment or a $250,000 fine^[2]. In the absence of clarity regarding the law, the surrogacy community has developed a set of ad hoc standards over what costs are acceptable for reimbursement. Medical and clothing expenses are generally thought of as reimbursable, while lost wages veer too close to compensation. But even with these ad hoc standards in practices, parties remain vulnerable to prosecution. In 2013, Leia Picard, Director of Canadian Fertility Consulting, admitted to paying between $22,000-$26,000 to three women to be surrogate mothers and was fined $60,000. In the agreed statement of facts of her case was the following sentence: “Health Canada policy permits reimbursement to donors and surrogates of expenses and disbursements related to donation or surrogacy.”^[3] However, some scholars disagree with this assertion, citing the Supreme Court’s ruling on the Assisted Human Reproduction Act, which states any sort of reimbursement cannot take place until Health Canada enacts regulations^[4].

There’s a second issue with surrogacy laws in Canada. Surrogacy agreements (or contracts) cannot be enforced in courts^[5]. This has profound implications for all parties involved in the surrogacy process. Without the safety net of legal enforcement, parties are left vulnerable to breaches. For a surrogate mother, if the intended parents decide not to reimburse her for the costs they once promised to pay for, there is no legal recourse she can seek. Alternatively, if the intended parents change their mind about having the baby, no mechanism compels them to take parental responsibility. A child’s “legal mother” is the woman who gave birth to her, regardless of whether or not her egg was used to conceive the child^[6]. The surrogate mother is forced to assume responsibility. The reverse of that situation can also occur. If a surrogate mother decides that she wants to keep a baby she carried to term, the intended parents cannot ask a court to compel her into specific performance. Under the current framework, or lack thereof, surrogacy arrangements rely completely on the good faith and honesty of the parties involved and the hope that no laws are broken in the process.

To reform the system, Canada should look to the U.S. state of California, one of the few places in the western hemisphere that has legalized commercial surrogacy. In California, only gestational carrier surrogacy – where a woman provides her womb and carries a child, biologically unrelated to her, to full-term – can be contracted for. Under state law, a surrogate mother is not recognized as having parental rights since she is not biologically related to the baby. The courts therefore hold consideration valid in gestational surrogacy contracts because the benefit to the surrogate is compensation “for her services in gestating the fetus and undergoing labor, rather than giving up ‘parental’ rights to the child.”^[7] This model not only protects both parties’ interests but also provides a better framework for what costs can and cannot be covered in a surrogacy agreement. Furthermore, under the Home Care Services Consumer Protection Act 2013, the legal parents must be established prior to the child’s birth in a parentage action delivered to a county court.^[8] Brought to Canada, this kind of law would eliminate the issues around surrogacy that currently exist. The California act also requires the intended parents and the surrogate be represented by separate council, limiting the possibility of exploitation that is inherently present in a surrogacy agreement. As a result, California enjoys a clear and regulated surrogacy industry that provides children for intended parents and upwards of $100,000 for surrogate mothers. It’s time for Canada to follow suit and provide a well-defined system that protects, rather than ignores, consenting parties looking to exchange services.  

Eman Jeddy is a first year common law student at UOttawa.

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^[1] Bill C-6, Assisted Human Reproduction Act, 3rd Sess, 37th Parl, 2004, cl 12.

^[2] Jocelyn Downie & Françoise Baylis, “Transnational Trade in Human Eggs: Law, Policy, and (In) Action in Canada” (2013) 40:1 J L Medicine & Ethics 224 at 228 [Baylis. “Transactional Trade”]

^[3] Françoise Baylis, Jocelyn Downie & Dave Snow, “Fake it Till You Make it: Policymaking and Assisted Human Reproduction in Canada” (2014) 36:1 J Obstetrics & Gynecology Can 510 at 511.

^[4] Ibid.

^[5] Susan G Drummond, “Fruitful Diversity: Revisiting the Enforceability of Gestational Carriage Contracts” (2013) Osgoode Hall Law School of York University Working Paper No 25/2013.

^[6] Ibid.

^[7] Jennifer Jackson “California Egg Toss: The High Costs of Avoiding Unenforceable Surrogacy Contracts” (2005) 15:2 J High Technology L 230 at 243.

^[8] Richard Vaughan, “California Surrogacy Law Takes Effect Jan. 1” International Fertility Law Group (26 Nov 2012), online: <https://www.iflg.net/california-surrogacy-law-to-take-effect-jan-1/>.

Perspectives on Surrogacy 2

In December of 2017 the Greenberg Chair in Women and the Legal Profession held a panel on surrogacy, where several prominent feminist lawyers and academics discussed their perspectives. A large number of University of Ottawa Faculty of Law students attended the event, and many blogged about it as part of an assignment in first year property law. Over the next few weeks this space will feature the diverse opinions of a number of our students.

In May 2017 uOttawa law Profs Angela Cameron and Vanessa Gruben along with their colleague Alana Cattapan of Dalhousie University will host a two-day workshop on the law and policy of surrogacy in Canada featuring national and international experts. Several uOttawa law students will participate in this event, and we will post their reactions to the workshop here.

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Emmett Brownscombe

The Fears about the Unreliable Stork are Overstated: The All Families are Equal Act and the Enforceability of Surrogacy Agreements

In an attempt to respond to the rising public demand for an injection of legislative clarity into the murky legal waters surrounding surrogacy, the Ontario government has enacted the All Families are Equal Act (AFEA). The act has been celebrated as an effort to limit discrimination against the rising number of families who use surrogacy to have children, but there are some members of the fertility law community who are concerned that the act may create more problems than it solves.[1]

One provision of the act garnering criticism is the declaration that all surrogacy agreements are unenforceable. The decision is likely the product of a well-intentioned desire to respect a surrogate mother’s bodily autonomy by affording her the final say over what will happen to the child she births.[2] Surrogacy agreements often place significant restrictions on the freedom of the surrogate during the nine months that she carries the child.[3] With this in mind, it is understandable that there is hesitancy to combine uncomfortably restrictive contractual terms with a rigid legal standard of enforceability. However, critics of the new legislation fear that it will put the parties of a surrogacy contract in an even more precarious legal position.

The issue stems from the AFEA’s disregard of the important distinction between traditional and gestational surrogacy. Traditional surrogacy occurs when the surrogate mother is genetically connected to the baby she is carrying.[4] The far more common type of surrogacy is gestational, where the surrogate has no genetic connection to the child.

Historically, the courts have not viewed agreements in relation to traditional surrogacy as enforceable. There has been an understandable unwillingness to enforce a contract that may force a mother to surrender a child she has a genetic connection with. Courts have been much more comfortable enforcing gestational carriage arrangements. However, the AFEA’s declaration that all surrogacy contracts are now unenforceable has given rise to a fear that the participants in a gestational surrogacy are at a greater risk of being denied parental control of a child with whom they are genetically connected. Theoretically, a surrogate mother may also be placed in the position of parenting a child she has no genetic relationship with should the intended parents change their mind.

However, there is good reason to believe that the feared consequences of the AFEA will likely never come to fruition. The declaration that all surrogacy contracts are unenforceable does not leave the parties without any legal recourse. The Act does allow for surrogacy contracts to be used as evidence of intention in any potential parentage dispute.[5] Another important element of the AFEA is that it requires a court to consider the best interests of the child when making a decision regarding parentage.[6] The combination of these two provisions suggests that the genetic parents of the child would be far more likely to be awarded parentage should a legal dispute arise.

The case law in Ontario relating to surrogacy also suggests that the genetic connection would likely be given priority in any legal dispute. In M.D. et al v L.L et al — a 2008 surrogacy case in which the genetic parents of the child sought a declaration of parentage — the Ontario Superior Court of Justice relied heavily on the terms of the gestational carriage arrangement, a contract which neither party disputed in the case.[7] The court said that genetic testing would be an appropriate tool to determine parentage in cases where the gestational carriage arrangement is under dispute.[8] This affirmed the Court’s earlier decision in J.R. et al v L.H. et al, a case in which genetic testing was conducted in support of a finding of parentage.[9] The Ontario Superior Court’s receptivity to genetic testing suggests that a situation in which an intended parent is denied parentage of their genetic offspring is unlikely to occur.

Although the AFEA’s declaration regarding the enforceability of surrogacy agreements has raised plenty of eyebrows, the combination of some of the other provisions of the Act and the Ontario case law regarding surrogacy suggests that the legal security of genetic parents is not as compromised as some critics of the Act would have you believe.

Emmett Brownscombe is a first law student at the University of Ottawa. He is from Peterborough, Ontario, and hopes to one day practice criminal law

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^[1] Sara R Cohen, “The All Families are Equal Act is Problematic for Surrogacy in Ontario. Here’s Why” (5 September 2016), Fertility Law Canada (blog), < http://www.fertilitylawcanada.com/fertility-law-canada-blog/the-all-families-are-equal-act-is-problematic-for-surrogacy-in-ontario-heres-why >.

^[2] Karen Busby, “Of Surrogate Mother Born: Parentage Determinations in Canada and Elsewhere” (2013) 25: 2 CJWL 285 at 303.  HYPERLINK

^[3] Erin Lepine, “Reproductive Labour? The Law and Policy of Surrogacy” (16 November 2016), online: YouTube <https://www.youtube.com/watch?v=Dpfp--_cXoQ >.

^[4] Dave Snow, “Measuring Parentage Policy in the Canadian Provinces: A Comparative Framework” (2016) 59:1 Can Pub Administration 5 at 9.  HYPERLINK

^[5] All Families are Equal Act, SO 2016, c C-23, s 10 (9).  HYPERLINK

^[6] Ibid at s 10 (8).

^[7] MD et al v LL et al, [2008] 90 OR (3d) 127. HYPERLINK

^[8] Ibid at para 47.

^[9] JR et al v LH et al, [2002] OJ 3998. HYPERLINK

No Half Measures: Why Canadian Police Services Must Implement the Philadelphia Model to Improve Handling of Sexual Assault Cases

Elizabeth Sheehy & Teresa Scassa

In her hugely important Unfounded series, which began appearing in early February in the Globe and Mail, investigative reporter Robyn Doolittle has meticulously documented what front line sexual assault support workers have known for a long time – that there are deep systemic issues with the way in which police across Canada investigate sexual assaults, and that sexual assault statistics, rather than shedding light on the incidence of sexual assault in Canada, can be used to “disappear” these assaults from the public record.

The Unfounded series lends considerable new support for what advocates have been seeking for some time now – the introduction of the gold-standard Philadelphia model to provide transparency and oversight around sexual assault investigations and ultimately to address and correct systemic deficiencies. Not surprisingly, the Philadelphia model also owes its origins to investigative journalism. It was detailed reporting in the Philadelphia Inquirer of the unfounding of serious sexual assault complaints that provided the impetus needed to push the Philadelphia Police Service to change its approach.

The Philadelphia model involves regular meetings between police officials and civilian experts – often front-line sexual assault workers. The team reviews all files classified as “unfounded” as well as other selected files in order to determine whether the classifications were appropriate, or whether further investigation is warranted. In the process, systemic problems are identified and addressed, improving the overall practices of the force. The model has been a success in Philadelphia and has been adopted by a growing number of police services in the United States.

Robyn Doolittle’s Unfounded series has attracted attention from provincial and federal politicians and has led a number of police services to indicate that they will take steps to improve their handling of sexual assault complaints. However, we are concerned that these steps may fall short of implementing the Philadelphia model. At their worst, they may simply be an exercise in semantics, leading to the reclassification of cases that were once unfounded as ones for which there is “insufficient evidence”. Further, we are concerned that privacy law may be asserted as a reason for not moving forward with the Philadelphia model. While the privacy of women who have been sexually assaulted is fundamentally important, it is misleading to suggest that the Philadelphia model would run afoul of privacy laws. The Philadelphia model treats those involved in case reviews as consultants and subjects them to the associated rigorous confidentiality requirements.

Our op-ed, published today in the Globe and Mail raises our concerns about measures that fall short of what is clearly the gold standard. The Philadelphia Model is not a half-measure, it is a game changer – and this is clearly what is needed across Canada.