Jane Doe's new op-ed on sexual assault
Friday, March 24, 2017
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.
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Perspectives on Legal Responses to the Sex Trade II
Monday, March 13, 2017
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 22nd, 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.
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Valuing Discourse: Senators Discuss INAC’s “Unstated Paternity” Policy
Friday, March 10, 2017
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.
[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
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Perspectives on Surrogacy 3
Tuesday, March 7, 2017
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.
_________________________________________________________________________________
Eman Jeddy*
Eman Jeddy is a first
year common law student at UOttawa.
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.
_________________________________________________________________________________
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.
[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.
[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/>.
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Perspectives on Surrogacy 2
Friday, March 3, 2017
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.
________________________________________________________________________________
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
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.
________________________________________________________________________________
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.
[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 >.
[3] Erin Lepine, “Reproductive Labour? The Law and
Policy of Surrogacy” (16 November 2016), online: YouTube <https://www.youtube.com/watch?v=Dpfp--_cXoQ >.
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No Half Measures: Why Canadian Police Services Must Implement the Philadelphia Model to Improve Handling of Sexual Assault Cases
Wednesday, March 1, 2017
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.
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