Second reading of Bill S-209, An Act to Amend the Department for Women and Gender Equality Act

By: The Hon. Lillian Eva Dyck (retired)

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Hon. Pierre J. Dalphond: Honourable senators, I rise today to speak to Bill S-209, An Act to Amend the Department for Women and Gender Equality Act on behalf of my colleague, Senator Dyck. This will most likely be Senator Dyck’s last speech in this chamber before her retirement in August, and I am honoured to have the opportunity to deliver it for her.

All the mistakes will be those of the messenger, but the content is really Senator Dyck’s. The speech is the following:

Let me begin by stating that I support the intention of Bill S-209, which is to examine the potential effects of government and other bills on women, particularly Indigenous women and subsequently to report to Parliament.

Senator McCallum should be acknowledged for championing the issue of resource extraction and its association with higher rates of violence against women, in particular Indigenous women.

My first comments are in regard to the rationale and justification for Bill S-209. While an affirmative action for a particular group, such as women, can be proposed under the Charter, this requires evidence demonstrating the need. The sponsor of the bill did not, unfortunately, provide such data or evidence to justify the female focus of her bill.

The sponsor could have provided an example of a bill where such a female-centric focus, particularly for Indigenous women, has been justified and enacted, such as in Bill C-75: An Act to amend the criminal code. That bill was amended in May 2019 to include specific mention of women and in particular, Indigenous women, with respect to intimate partner violence and abuse in general relying on the work of the MMIW commission.

Honourable senators, there are also two fundamental problems with Bill S-209. Firstly, its operational clause, clause 5.1(1) lacks specific and clear language, and secondly, given the recent changes to the Justice Act in Bill C-51, there seems to be little or no need for Bill S-209.

On the first fundamental problem, the sponsor stated that “This bill would enshrine the requirement of the Minister for Women and Gender Equality to undertake a gender-based analysis (GBA) for every future piece of government legislation”. However, the bill itself does not actually mention GBA. Clause 5.1(1) of Bill S-209 simply requires the Minister of the Women and Gender Equality department to table for every bill, “a statement that sets out potential effects of the bill on women, particularly Indigenous women.” The bill does not specifically or clearly spell out how the Women and Gender Equality department is supposed to examine the potential effects of a bill on women.

Even if Bill S-209 was amended to include GBA or GBA+ in clause 5.1(1), there is another concern which should be noted.

It’s the underlying assumption that GBA or GBA+ is effective, but according to a 2018 paper by Professor Vanessa MacDonnell (posted on the Can LII website), GBA+ analyses are largely a marginal phenomenon in a marginalized department.

Similarly, according to the 2015 Auditor General’s report on Implementing GBA+, such analyses had been implemented in only 25 of 110 departments, so much work still has to be done to fully implement it into all departments. The Auditor General stated that Status of Women (as it was then named) needed additional resources to do the work. It is important to note that the Auditor General also stated that the effectiveness of GBA has not been assessed and its impact is unknown.

In other words, colleagues, there are significant weaknesses to GBA+ that make it worth questioning whether or not it should be enacted into law as a mandatory for all bills — government and non-government bills.

Furthermore, Professor MacDonald stated that there is a significant gap between the aspirations of GBA+ and its application. A key point she makes is that courts readily invalidate laws that infringe on rights (and S-3 would be a good example here), but on the other hand, courts rarely review the sufficiency of steps that the government takes to implement rights. Since GBA+ focuses on implementation of rights, legislation to require GBA+ may be less effective than Charter vetting.

Honourable senators, that brings me to the second fundamental problem with Bill S-209, even if it were amended to include GBA+, which is this: It will be similar to but not as good as what is already being done by the Department of Justice in connection with the Charter of Rights and Freedoms. The requirement in Bill S-209 to analyze the impacts of legislation on women, particularly Indigenous women, would be similar to the current method of Charter vetting of government bills. The latter already accomplishes the same objective as Bill S-209 and thus the bill would be redundant, except for non-government bills.

The sponsor briefly mentioned Charter vetting by stating that “in section 4.1(1) of the Department of Justice Act that requires the minister to ascertain whether any of the provisions of new legislation are “inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms . . . “. That minister is also required to report any such inconsistency to the House of Commons at the first convenient opportunity.” But these provisions have been changed recently.

On December 13, 2019, amendments made to the Department of Justice Act under Bill C-51 came into effect, which made public Charter statements mandatory, and furthermore, instituted Charter analyses for all government bills, not just those from the Department of Justice. The sponsor may not have been aware of these important changes when drafting Bill S-209.

Let me explain why these changes are important. According to information on the Justice website, as of December 2019, a new duty has been imposed on the Minister of Justice to table a statement for all government bills that set out the potential ways in which a bill engages Charter-protected rights and freedoms. The Minister of Justice previously tabled Charter statements for bills that the minister introduced, and now the minister extends this duty to all government bills.

Quoting directly from the Justice website:

“The Statements are intended to inform Parliamentary debate as well as the public more generally about the implications of new legislation from a Charter perspective. The Statements would be accessible and as plain language as possible, with a view to promoting increased awareness and public discussion of the Charter. Charter Statements would provide legal information — not legal advice — to Parliament and would be tabled in the House of Parliament in which a bill is introduced.

The purpose of the proposed new duty is to enhance the protection of Charter rights by requiring the Minister of Justice to provide information systematically and proactively about the potential Charter implications of all government bills.”

Colleagues, let me emphasize that last sentence: This new duty is to enhance the protection of Charter rights — which, of course, includes women and Indigenous women.

Resuming the quotes from Justice:

“The Minister of Justice’s Statements would become an additional resource available to support Parliament in its consideration of bills and would help foster informed debate of the key Charter issues raised by proposed legislation. This would encourage ongoing consideration and discussion by Parliamentarians and the public of the shared Canadian values embodied in the Charter, including respect for the inherent dignity of every human being, freedom, democracy, equality, inclusion, and respect for diverse cultural, religious and group identities. It would also demonstrate a firm commitment to openness and transparency.”

Colleagues, there were 25 Charter statements posted by the minister on the Department of Justice website in the last parliamentary session, and on March 8 there were five posted for this session.

From the reports that I read, it is apparent that the current method of applying a Charter analysis to all government bills and utilizing a methodology that is oriented to upholding and implementation of Charter rights is more likely to create an improvement in equality for targeted groups than the previous methodology of Charter vetting that was oriented to avoiding court challenges due to perceived violation of Charter rights. Furthermore, the current approach to Charter analysis of government bills would also be more likely to result in greater equality results than the approach envisioned in Bill S-209 which, as stated by Senator McCallum, “. . . would flag any potential adverse impacts of the bill on women, particularly Indigenous women.”

Thus, it could be argued that what is being proposed in Bill S-209 is redundant because its intention has already been implemented by the amendments in Bill C-51. Through the latter bill, the Minister of Justice is required to table a statement that sets out potential effects of government bills on the rights and freedoms that are guaranteed by our Canadian Charter of Rights and Freedoms, and this would, of course, include women and Indigenous women. Under Bill S-209, the Minister of Women and Gender Equality must table a statement that sets out the potential effects of all bills on women, in particular Indigenous women — a more limited scope of application that would exclude other groups protected by the Charter, such as those with mental or physical disabilities.

In summary, though the intention of Bill S-209 to analyze the impact of all legislation on women, in particular, Indigenous women, is laudable, it does not actually implement GBA of all bills as stated by the sponsor. Furthermore, even if Bill S-209 were amended to achieve this goal, it would be mostly redundant.

In addition, if the bill passed it would create a need for additional resources by the Department of Women and Gender Equality, the responsible authority. Is that legitimate for a Senate public bill?

Finally, and most importantly, the recent amendments through the Department of Justice Act regarding Charter analyses and Charter statements accomplish the same objective as Bill S-209, but with a methodology that is thought to be more effective in advancing women’s equality. So it may be concluded that there really isn’t any need for Bill S-209, that it is redundant except in the case of non-government bills. If it is determined that non-government bills must also undergo a Charter analysis, the Department of Justice Act could be amended to do so.

For these reasons, though the intention of Bill S-209 is laudable, I am unable to support it. Due to its fundamental shortcomings, it is questionable whether it should be sent to committee for study.

Thank you. Kinanaskomitin.

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