For the first time in eight years the Committee on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has reviewed Canada’s record on women’s rights. The Concluding Observations on Canada are remarkable not only in the breadth of issues it covers but also its attention to detail and the specificity of its recommendations. In part this is due to an extraordinarily high level of participation by civil society organisations (CSOs) in the periodic reporting process. Almost thirty CSOs submitted shadow reports to the Committee explaining where Canada had failed to uphold CEDAW. UN human rights treaty bodies are often criticized for providing weak oversight and offering generic and arguably even meaningless recommendations. Drawing on the wealth of knowledge from CSOs, the Committee has been able to transcend this critique and offers innovative recommendations.
One of the most striking features is the Committee’s focus on intersectionality. Indigenous women and girls are one of the most disadvantaged groups in Canadian society. To break the cycles of gender oppression and colonialism, the Committee recommends a cross-cutting approach and encourages Canada to, inter alia, ensure that indigenous women enjoy the same rights as men to transmit their indigenous status and that indigenous women organizations be included in the national nation-to-nation relationships. The Committee also provides advice on how to structure the inquiry into murdered and missing indigenous women. It encourage Canada to develop a national gender equality strategy which should have special focus not only on First Nations, Inuit and Metis women but also other disadvantaged groups of women and girls including ‘Afro-Canadian, disabled, migrant, refugee, asylum-seeking, single parent, lesbian, bisexual, transsexual and intersex women and girls.’
Although CEDAW has no specific provisions requiring states to address the gender-based aspects of poverty, the Committee is working towards an interpretation of the treaty that holds states to account for the role that poverty plays in perpetuating gender inequality. First, it calls on Canada to ensure that civil legal aid covers not only women who are well below the poverty line but also low-income women who are unable to afford legal representation. This points towards a robust concept of gender-based poverty in CEDAW. Second, in response to housing shortages, high rents, the lack of clean water on indigenous reserves and the limited availability of affordable, quality childcare, the Committee recommends that: (i) Canada engage with indigenous women on water issues; (ii) that the federal government increase the amount of transfer payments to the provinces; and (iii) to make the transfer payments conditional on the provinces increasing the social assistance rates to prevent discriminatory effects of inadequate incomes for women. Third, there are no justicable socio-economic rights in the Canadian Charter of Rights and Freedoms. There is a push to interpret the right to security of the person (section 7 of the Charter) to include socio-economic rights. However, there remains some uncertainty and possibly even resistance to this interpretation. The Court Challenges Programme (CCP), which is a federally funded programme that provides assistance to cases that advance equality rights, has recently been reinstated. The Committee advices that the CCP should be provided funding for claims that develop the relationship between right to security, socio-economic inequality and poverty. This is a bold recommendation as the Committee is directing the future development of Canadian jurisprudence.
The Concluding Observations are also keenly attuned to some of the newest threats to women’s rights in Canada and around the world. It suggests that Canada reinstate Article 13 of the Canadian Human Rights Act to ensure a civil remedy is available for victims of cyber gender-based violence. In another innovative move, the Committee advocates that Canada take a public health rather than criminal law perspective to drugs and controlled substances, particularly ‘in light of the ongoing nation-wide opioid overdose crisis’ and the over-population of women in prison. Its recommendations are tailored: it suggests that Canada repeal specific legislation that acts as a barrier to women being able to access supervised consumption services and to exempt drug users from arrest when calling 911 to get assistance for an overdose.
As another example of the Committee’s commitment to a dynamic approach to CEDAW, it is concerned that transnational companies, particularly mining corporations, that are registered in Canada are violating women and girl’s rights in other countries. It recommends that Canada strengthen legislation to govern the conduct of Canadian corporations when acting overseas and introduce effective accountability mechanisms so that women whose rights have been violated by a Canadian corporation can access justice. Although there are no obligation requiring states to co-operate to realize women’s rights, it seems the Committee is interpreting a duty of co-operation into CEDAW. Given the power of transnational corporations and their ability to perpetuate poverty and gender inequalities, this is a significant development not just for CEDAW but for the entire UN human rights framework.
The Committee has developed a strong voice and offers a rich vision on gender equality. In the past the Canada has been willing to follow the recommendations of the Committee, hopefully it continues in this tradition.