Second reading of Bill S-218, An Act to amend the Department for Women and Gender Equality Act

By: The Hon. Marty Klyne

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Centennial flame, Ottawa

Hon. Marty Klyne: Honourable senators, I rise in support of Bill S-218, An Act to amend the Department for Women and Gender Equality Act sponsored by Senator McCallum.

This important legislation would require the Minister for Women and Gender Equality and Youth to table a statement in Parliament on certain bills, outlining their potential effects on women and, particularly, on Indigenous women.

Senator McCallum commenced our debate with a powerful call for substantive equality for Indigenous women, considering the terrible discrimination and violence they have endured in our federation. Senator McPhedran recently added her support and insights to the discussion, and I hope we’ll hear additional debate — and I hope Bill S-218 will move to committee with a sense of urgency after having been introduced in November of 2021, and twice in the last Parliament.

Colleagues, why do we need this bill? Since 2019, following the passage of Bill C-51, federal law has required the Minister of Justice to provide a statement of Charter compliance for every government bill in Parliament. However, complying with Charter equality requirements is not necessarily the same as doing a good job of considering, and crafting, public policy that establishes equality and paves the way for all women.

As Senator McCallum told us, this is particularly the case for Indigenous women, where specific knowledge and understanding are often needed to think carefully about colonialism, discrimination, violence, risk from resource development, constitutional Aboriginal or treaty rights, and the inherent rights affirmed under the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.

In the face of many disadvantages incurred through injustice, this bill aims to help Indigenous women access the quality of life that so many others take for granted — so they can exercise, and enjoy, their individual and collective rights.

As I will discuss, the concept of GBA Plus is also broad enough to respond to contextual concerns of other groups of women who have faced disadvantage, such as other racialized groups. I trust the committee will attend to this point.

Specifically, Bill S-218 would establish a gender analysis reporting requirement for all government-initiated bills, as well as for any individually initiated House of Commons private member’s bill, Senate public bills or private bills that reach committee stage.

As Senator McCallum told us, she chose the trigger point because adoption at the second reading indicates that a non-government bill is meaningfully progressing through the legislature. In addition, this legislation requires a statement from the minister in response to amendments adopted in the chamber where the bill originated should the bill pass that chamber for the benefit of the second house. This feature of Bill S-218 is valuable to get the full picture.

Honourable senators, a legal requirement for publicly available gender-based analysis can enhance federal legislation’s value for women, including Indigenous women. In this way, Bill S-218 represents a natural progression of years of effort toward the federal government’s inclusion of gender-based analysis in formulating legislation, intersecting with reconciliation.

This is not a new issue. In 1995, the Government of Canada committed at the United Nations Fourth World Conference on Women to applying gender-based analysis to its policy decisions. Sadly, challenges linger. In 2005, the House of Commons Standing Committee on the Status of Women tabled a report outlining the uneven application of gender-based analysis by departments, resulting in the appointment of an expert panel on accountability mechanisms for gender equality. The panel’s 2005 report recommended establishing legislation to enforce the use of gender-based analysis, monitoring and reporting. With Bill S-218, we have an opportunity to fulfill the recommendation made 17 years ago.

In 2009, the Auditor General released a report on gender-based analysis indicating its application still varied significantly among departments. In 2015, the Auditor General noted ongoing barriers to Gender-based Analysis Plus, that is GBA Plus, including an absence of mandatory government requirements in relation to legislation. For persons who may be learning about this subject, the “Plus” in the term “GBA Plus” acknowledges that gender-based analysis is not just about differences between genders. It must also consider intersection with aspects of identity such as ethnicity, religion, age, language, income or disability. In this way, the concept respects diversity and inclusivity.

Bill S-218’s emphasis on Indigenous women certainly does not exclude other groups of women where considerations of social context are relevant, such as for other racialized or marginalized groups. Again, a committee can examine these details.

In 2015 and 2017, mandate letters for the Minister of the Status of Women prioritized efforts to strengthen gender-based analysis. In 2017, a report of Women and Gender Equality Canada noted that the federal government made the application of GBA Plus mandatory for all memorandums to cabinet and Treasury Board submissions.

This is a positive step. However, the analysis is not made public. This lack of transparency is the first problem with the status quo that Bill S-218 would remedy through tabling requirements.

Bill S-218 would also address a second problem. As Senator McCallum said, “any future government can stop the practice at any time.” By enshrining the analysis and tabling requirements for women in law, the practice would become hard to discontinue, only possible through repeal with democratic scrutiny.

Bill S-218 would address a third problem with the status quo, being that GBA Plus may not be happening for non-government bills that have viable prospects of becoming law in Canada. Colleagues, we, of course, need to treat any potential legislative changes with due diligence, regardless of whether the initiator is the government or an individual parliamentarian. In fact, according to Senate Procedure in Practice, our distinction between government business and other business has only been in place since 1991, when changes to the Rules prioritized government items.

Currently, a few federal statutes, such as the Immigration and Refugee Protection Act and the Impact Assessment Act, do require gender-based analysis in their application. These examples demonstrate the value of statutory requirements, as does the shift to Charter compliance statements with Bill C-51 and other examples of reporting requirements to Parliament. However, federal legislative activity is still not subject to requirements to report on a given bill’s potential effects on women. By changing this, Bill S-218 will ensure that new laws benefit all women in Canada.

Recent proceedings in this place have confirmed that there is room for improvement. On debate on Bill C-30 — legislation that enhanced the GST credit — Senator Dupuis and Senator Bellemare noted government shortcomings around GBA Plus analysis. We learned that though a summary of GBA Plus is sometimes made available to senators by the government, as Senator Dupuis said:

This practice should be extended to all bills, and the summary of this analysis should be tabled before all Senate committees. This practice should be routine, not left to the whim of individual ministers.

Honourable senators, at a meeting of the Standing Senate Committee on Social Affairs, Science and Technology on October 27 of this year, the Minister for Women and Gender Equality and Youth, the Honourable Marci Ien, discussed the value of GBA Plus and the government’s commitment to this approach. Her determination is to be commended. However, Senator Patterson noted that a 2022 report of the Auditor General stated:

. . . only 39% of surveyed departments and agencies performed GBA Plus at this critical problem definition stage more than 60% of the time. This means that the majority of departments and agencies surveyed reported not applying GBA Plus in the initial design phase of policies, programs, and initiatives, thereby reducing the impact GBA Plus could have to address or avoid inequalities experienced by diverse groups of men, women, and gender-diverse people.

Senators, with Bill S-218, the federal government can build on progress to date on GBA Plus. As Senator McPhedran told us, it is important that GBA Plus take place in all sectors, including in areas such as fisheries, national defence and infrastructure. We should therefore move Bill S-218 to committee to consider the lasting change proposed by Senator McCallum.

Honourable senators, I will add a few words on why Indigenous women require dedicated policy attention, justifying the specific mention that Senator McCallum has suggested in Bill S-218. In my view, valid reasons include the historical context of colonialism, being the genesis of the high levels of discrimination and violence we see today, as well as distinct legal frameworks applying to Indigenous women through section 35 constitutional rights and UNDRIP.

From The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, released in 2019:

The violence the National Inquiry heard amounts to a race-based genocide of Indigenous Peoples, including First Nations, Inuit and Métis, which especially targets women, girls, and 2SLGBTQQIA people. This genocide has been empowered by colonial structures evidenced notably by the Indian Act, the Sixties Scoop, residential schools and breaches of human and Indigenous rights, leading directly to the current increased rates of violence, death, and suicide in Indigenous populations.

Honourable senators, our work in this chamber has sought to address this situation, and there’s more work to do. For example, the famous six Indigenous women, including Senator Lovelace Nicholas and former Senator Dyck, have made extraordinary efforts to eliminate gender-based discrimination in Indian status registration. As the Indigenous Peoples Committee outlined in their June report entitled Make it stop!, and as Senator Lovelace Nicholas and Senator Francis wrote in Charlottetown’s The Guardian in July, the government is still not up to the principle of non-discrimination in status.

As a second example, Senator Boyer in the Standing Senate Committee on Human Rights has led efforts to end the ongoing practice of forced sterilization in this country. We know from the committee’s report last year that this practice disproportionately affects Indigenous women and other vulnerable and marginalized groups in Canada. This year, Senator Boyer introduced Bill S-250 to make this practice a specific offence under the Criminal Code.

Colleagues, the need for such a bill illustrates a terrible ongoing situation for Indigenous women in this country.

As a third example, we’re familiar with Senator Audette’s work as a Commissioner on the National Inquiry into Missing and Murdered Indigenous Women and Girls and their Calls for Justice. We are grateful for the work of the Indigenous Peoples Committee in helping to hold the government to account in answering those Calls through their June report, Not Enough: All Words and No Action on MMIWG.

I acknowledge the committee’s conclusion that their ongoing vigilance can help answer Calls for Justice 1.7, respecting a National Indigenous Human Rights Ombudsperson and Tribunal, and 1.10, respecting an independent annual reporting mechanism to Parliament.

Senators, in giving Indigenous women legislative focus through Bill S-218, we also acknowledge their distinct legal situation by virtue of section 35 constitutional rights, as well as UNDRIP, set for implementation by way of action plan. Articles 21 and 22 of UNDRIP provide that:

Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

As UNDRIP becomes federal law, this principle requires legislative attention, as proposed by Bill S-218.

To conclude, government, Parliament and Canadians must do more to approach public policy through a gender and reconciliation lens. We must do more to build a better society for all women, including Indigenous women. This legislation will help. Colleagues, I ask you to join me in supporting Bill S-218 for swift passage to committee. Thank you, hiy kitatamîhin.

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