Placing LEAF’s Report “What It Takes” in Context: Part 2

PREFACE

This is the second part of a post placing LEAF’s recent report, What It Takes: Establishing a Gender-Based Violence Accountability Mechanism in Canada (“What It Takes” or “LEAF report)” on gender-based violence (GBV) in the context of historical efforts to address GBV (albeit fragmentary references) and more recent developments: the 2021 Joint Declaration for a Canada Free of Gender-Based Violence, signed by Canada, the provinces and the territories, leading to the 2022 National Action Plan to End Gender-Based Violence (“National Action Plan”, “NAP” or “NAPGBV”), the 2019 Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (“MMIWG Report”), particularly its Call for Justice 1.7, the establishment of a National Indigenous and Human Rights Ombudsperson, and the 2023 Mass Casualty Commission Final Report’s recommendation for a GBV Commissioner.

In Part 1, I outlined existing efforts to end GBV and the above reports, the latter as relevant to LEAF’s report. In this second part I focus on LEAF’s own report, What It Takes: Establishing a Gender-Based Violence Accountability Mechanism in Canada . What It Takes’ researcher and author is Dr. Amanda Dale.

INTRODUCTION

What It Takes, released in October this year, is the result of LEAF’s Accountability Project, intended to “hold governments accountable for taking steps to end gender-based violence in Canada”. Its main recommendation, a GBV Commissioner, builds on the MCC’s final report recommendation for a GBV Commissioner, and the MMIWG Call for Justice 1.7.

I emphasize three aspects of What It Takes:

• It does not purport to advance new or novel recommendations for addressing GBV, but rather, adopts the MCC’s recommendation for a GBV Commissioner. (See the MCC Final Report, Executive Summary and Recommendations, Recommendation V.17; also Vol. 3, pp. 454-461 for a discussion explaining the reason for the recommendation).

• Its purpose, then, is to build on the MCC’s recommendation for a GBV Commissioner.

• It ultimately recommends something less than the “ideal” GBV Commissioner functions in the hope that doing so would make the federal government more likely to accept and fund the basic recommendation of a GBV Commissioner.

It is important at the outset to note the report’s the use of terminology and who is meant when it talks about GBV:

LEAF uses the terms violence against women (VAW) and gender-based violence (GBV) as inclusive of cis women, trans women, and people of all marginalized genders, including Two-Spirit, trans, and non-binary people. However, when quoting statistics, we will use the terminology that is accurate to the measurements of the particular study. Additionally, where the terminology of international human rights law or domestic law protections differs from this preferred expansive definition, we will use the source’s precise terminology to avoid confusion about the nature of the protections. (p.6) [All citations are to the LEAF report unless otherwise specified.]

(As the report explains, VAW has now been replaced by the broader GBV; however, it uses VAW when it discusses materials or data that use VAW. The same is true of intimate partner violence or IVP.) Clearly defining what the report treats as GBV, as it does, is crucial; the report is also helpful in providing a glossary of other terms, which ensures that everyone reading the report understands terminology in the same way. (A minor addition would be to define the term “expert” [“what makes a person an ‘expert’?”] See p.16 or the lists in Appendices A and B for who is considered an “expert”).

While What It Takes acknowledges the commitments of the governments in Canada to address GBV, as reflected in the NAP, about which it is critical, and resulting provincial and territorial agreements with the federal government, it identifies GBV as an epidemic and joins the chorus calling for more to be done: “Accountability to real social and institutional change requires more” (p.14). That “more” involves, the report continues,

• The direct involvement of affected communities, community-based advocates, and experts in GBV who can recommend changed approaches,

• Independence from political favour or changes in government mandates,

• An independent budget,

• A time-horizon commensurate to solving the complex nature of the problem, and

• An accessible, independent, collaborative, responsive, data-driven, and innovative approach. (p.15).

(Compare the MCC’s similar list, Final Report, Vol. 3., p.460.)

Addressing GBV is not a matter of choice for the government. Pressure on Canada derives in part from its international legal obligations to address GBV, which are based on GBV being a form of societal discrimination and deprivation of human rights, not “merely” a harm to individual women (salient though the impact on those who have actually experienced GBV is) (p.21). It has become a matter of “customary international law”, meaning “the standard of due diligence to fulfill this obligation is binding on all states, regardless of formal agreements. In this sense, Canada has as much duty to fulfill this obligation as it does to refrain from torture, slavery, genocide, and racial discrimination. The obligation applies equally to state and non-state actors …. ” (p.21).

Thus the report’s objective is not to persuade that Canada and its jurisdictions have an obligation to address GBV; this is already recognized. It is to determine how to hold those governments accountable for what they have said they will do and what they should do to address GBV. At the same time, we cannot be complacent in accepting the status quo as far as governments’ existing commitments go.

What It Takes’ recommended mechanism for holding governments to account is a central vehicle that works with community based groups and has sufficient powers to take governments to task for failing to realize their objectives.

Adoption of the MCC’s Recommendation for a GBV Commissioner

Although the idea of “public accountability to solve GBN” began many years ago, as already indicated, LEAF’s report builds on the recent report of the MCC inquiry into the mass killing of 22 people in Nova Scotia in April 2020 and its recommendation V.17 for the creation of a GBV Commissioner (p.14). It also incorporated the MMIWG Inquiry’s Final Report’s Call for Justice 1.7 for an Indigenous and Human Rights Ombudsperson. (LEAF participated in both these inquiries [p.14].)

(A reminder that the MCC inquiry was concerned with mass casualties of all types; however, it discovered that GBV was often a component in one way or another, even when not immediately evident, and therefore made not only recommendations directed more generally at mass casualties, but also recommendations additional to the GBV Commissioner to address GBV itself.)

A “new office” is needed because existing mechanisms are inadequate: “they do not have the critical resources, focus and depth in this area for such a complex and specific role, which includes a vital function to provide education and research, as well as to promote rights”; moreover, they are too often retraumatizing for victims (p.31). (With regard to the latter, police investigations and court procedures, for example, too often force women to “relive” their experience.)

Along with other organizations, LEAF is critical of the NAP. Among other problems, crucial in the current context, it lacks an accountability mechanism and the agreements under it provide for self-reporting by the provinces and territories (pp.22-23). It does not address actions taken (or not taken) at the federal level, which are covered by the Federal Strategy to Prevent and Address GBV; there are no current reports under that latter strategy (p.22). Relying on a joint analysis by Women’s Shelters Canada and Ending Violence Association Canada, the report notes that “provincial and territorial exceptionalism and autonomy make the current NAPGBV difficult to monitor” (p.23).

The joint analysis also “highlighted that the arrangements missed some critical opportunities for a coordinated and national reach and, therefore, missed the mark on fulfilling the promise of a true NAPGBV with measurement, evaluation, accountability, and learning (MEAL)” (p.23).

Furthermore, funding is difficult to track and it is hard to determine when funding is new or funding that would have gone to GBV initiatives regardless of the NAP and the provincial/territorial agreements. It is also disappointing that infrastructure promised by the NAP has turned out to be the more familiar short-term funding (p.15).

In short, despite the NAP and the agreements, something is missing: a national accountability mechanism. And the timing may be right now to remedy that lack. There have been efforts for federal-provincial co-operation (although it would be unrealistic not to acknowledge that recently there have also been very significant provincial challenges to the exercise of federal power on the basis that it intrudes on provincial authority). The provincial and territorial agreements under the NAP, an example of the federal and provincial/territorial governments working together in a sense, are in themselves reason for optimism. (p.15) (The MCC report speaks slightly more extensively about timing at Vol. 7, p.408.).

A major aspect of What It Takes’s analysis and recommendation is the importance of inclusion of voices that have too often been marginalized (albeit increasingly included). Indigenous voices take centre stage: the MMIWG recommendations to some extent run along a parallel path to other initiatives because of the need to acknowledge and respond to the specific experiences of Indigenous communities. However, the concept of intersectionality informs both the report’s analysis of GBV and of the concept and operation of the GBV Commissioner recommendation.

It is crucial to understand how GBV plays out in different communities (persons with disabilities, LGBTQ+ or LGBTQ+ persons who live with disabilities, for example) to ensure that responses respond to the needs of the members of those communities and not reproduce the harms that perpetuate the violence and other forms of marginalization (pp.18, 20) This is of particular concern for Indigenous victims of GBV (p.19).

If these different experiences are to be integrated into responses and solutions, as they must, What It Takes emphasizes the importance of approaches based on intersectionality, as has long been recognized among those in the GBV arena, to the extent that it is almost automatic that those dealing with discrimination assume its importance: a failure to refer to it would be considered a failure of the relevant analysis or recommendation. As the LEAF report recognizes, “Intersectionality is, ultimately and overall, the approach needed in developing responses to GBV and needs to be the express approach of the accountability mechanism. It is also best guaranteed by collaborative approaches between and among ombuds-like mandates that oversee mechanisms and laws that affect populations vulnerable to human rights violations” (p.20).

An 18 member advisory group and the contributions of experts helped Dr. Dale gain an appreciation for the pragmatic impact of intersectionality – moving it beyond the academic and theoretical understanding of the term – as well as other aspects of the report, including the decision to adopt the MCC’s recommendation and to pare down the final recommendation’s scope. The significant influence of Indigenous concerns was manifested not only in Dr. Dale’s consultation with the Ontario Native Women’s Association’s (ONWA) Indigenous Women’s Accountability Table, but in the Table’s facilitator’s acting as her “guide and consultant” (p.16).

Related to intersectionality is an appreciation of the need for substantive equality. The MCC report suggests that “the most direct route to ending gender-based violence is lifting women and girls out of poverty” and notes that [t]he Canadian National Action Plan recognizes that gender-based violence is rooted in gender inequality and further intensified by systemic inequalities” (MCC Report, Vol.7, p.442). To some extent its statement about poverty is true: without economic independence, it is difficult for women to remove themselves from abusive situations. However, I suggest it misses that GBV occurs at all economic strata and is considerably more complicated than the availability of financial support.

What It Takes agrees that substantive equality is important, but also appreciates that sometimes an important goal cannot take primacy. GBV, after all, arises from inequality between men and women, and yet at the same time is itself a barrier to the achievement of substantive equality. Chicken and egg, but a decision about where to put one’s energies must be made. Here the report concludes, “we cannot wait for the achievement of gender equality as the only means to eradicating GBV. With the goal of substantive equality in mind, however, some short-term responses to GBV, such as particular legal recourses, could be off the table since they may ultimately impede that goal by leading to further racism or perverse incarceration of those seeking protection from harm” (p.25).

Accordingly, the concept of substantive equality is “how we approach and measure the outcomes of our efforts [and] [w]ithout this framing, ‘[s]ome of the best things within and about feminism get left out.’” (p.25, quoting Janet E Halley, “Preface” in Governance Feminism: An Introduction ix, p.xi.)

The LEAF report is helpful in providing a mini-primer on accountability mechanisms, including their purpose and types, including especially specific accountability mechanisms for GBV (pp.24-25). It provides detailed descriptions, as well as commentary, about three mechanisms for GBV (Finland, England and Wales, and Australia (pp.26-28). The Nova Scotia report was most impressed by Australia’s federal commissioner model and, after considering other alternatives, What It Takes agrees. The challenge is that many issues that need to be addressed fall within provincial purview (p.31). Yet, as the LEAF report reminds, it was the joint provincial-federal commission in Nova Scotia that recommended a federal commissioner.

Despite the difficulties posed by federalism, What It Takes is optimistic that it can be a benefit. Speaking of the federal ombuds, it explains,

through a federal mandate that does not overstep, the office can provide leadership, momentum, and collaborative engagement on issues of mutual concern. This is consistent with the role of ombuds as
“norm entrepreneurs” who can increase their likelihood of success and endurance through changing government mandates and commitments when they have “developed collaborative relationships with international actors, other human rights institutions, [non-governmental organizations] and other civil society actors.” (p.32, quoting Linda C Reif, “Ombuds institutions: strengthening gender equality, women’s access to justice and protection and promotion of women’s rights”, in Research Handbook on the Ombudsman, p.236 at p.254.)

What It Takes suggests actions that could address the federalism challenge, including establishing relationships between/among the GBV commissioner and relevant agencies and tracking best practices and funding (p.33). In particular, there must be “close collaboration” between the GBV Commissioner and the Indigenous Ombudsperson “with communication and information-sharing structures where mandates overlap,” a process preferably legislated (p.33).

Importantly, it emphasizes the direct involvement of those affected. How this occurs can benefit from the MMIWG’s recommendation for a National Indigenous and Human Rights Ombudsperson (“Indigenous Ombudsperson”) with its involvement of Indigenous elders/families and communities ”) (MMIWG Report, Volume 1b, Call for Justice 1.7, p.178). The office of the GBV commissioner can also be informed by accountability through those who have traditionally not been included in more conventional consultation. (p.33) (A more detailed exploration of Call for Justice 1.7 is found in the MMIWG Report, Vol. 1b, p.178.)

As a helpful report should but often does not, What It Takes acknowledges potential difficulties in implementing recommendations. For example, consultees noted several reasons why the GBV Commissioner proposal might not be successful; these included, among others, jurisdictional limitations, a risk that it would be “prone to overemphasis on criminal justice rather than community-based and preventative measures” and that it would be in competition for limited resources (p.33). The report notes that some responses to the challenges can be drawn from the way the federal Privacy Commissioner office is structured (p.34). The report also sets out the various advantages a GBV Commissioner would have in addressing GBV, including more effective use of resources, the involvement of communities particularly affected by GBV and providing on-going oversight, among others (p.35).

Advancing the GBV Recommendation

The value of the recommendation must be found in the detail. For example, the report includes a helpful comparison chart for three degrees of power; it should have “strong powers”, ranging from carrying out research to intervening in relevant court cases and having Cabinet privilege to “consider draft legislation” affecting survivors. It would have “optimal independence” (which appears to be the same as “some independence” in the comparative independence chart), appointed by a parliamentary committee with approval by both houses of parliament and removal by parliament only for limited reasons. (p.38) This was not explicit in the MCC report, although it is clear that the MCC also believed the GBV Commissioner should be independent and have the other characteristics LEAF advocates.

Qualifications for the commissioner should include expertise in GBV and “deep networks” among those involved in GBV. The appointment should be for five years minimum (long enough to outlast a government), renewable once (p.40). It should have a full range of powers, allowing for advocacy, research, consultation, reviews (with the power to compel documents and witnesses in relation to federal jurisdiction), intervene in court cases and Cabinet privilege to consider draft legislation affecting survivors of GBV (p.38).

It requires an “optimal” level of independence, akin to the privacy commissioner, appointed and removable only by Parliament (p.40; see p.34 for privacy commissioner details).

The GBV Commissioner is to be guided by principles and implementation of intersectionality and Canada’s international law obligations. It would apply the areas of focus in the NAPGBV (Support for Victims, Survivors, and their Families; Prevention; Responsive Justice System; Implementing Indigenous-Led Approaches; and Social Infrastructure and Enabling Environment) (p.39).

What It Takes makes the following three recommendations that might be termed foundational:

• Use an internationally recognized, intersectional definition of GBV in the Commissioner’s mandate, such as that used by CEDAW and any other treaties related to GBV ratified by Canada and adopted by the current NAPGBV.

• Employ an expansive and innovative approach to accountability in the mandate that imagines affected communities as the aggregate source of expertise, nuanced data collection, best practices, and the ultimate beneficiaries of an accountable response to GBV.

• Ensure clear constitutional parameters guide the Commissioner’s mandate, such as operating only within legal issues related to criminal, Indigenous, immigration, and refugee matters” [the report call these “constitutionally circumscribed areas of mandate” (p.38)]. (p.39)

Other recommendations relate to structure:

• Ensure the GBV Commissioner is structurally accountable to the Canadian public and to affected communities.

• Appropriately staff the office of the commissioner to advance necessary collaboration, research, and evaluation capabilities.

• Structure the office to favour implementation and engagement, with a robust consultation budget and back-office integration (p.41).

The office should share resources. It must ensure connection to grassroots, with an “intersectional survivor, advocacy and support sector advisory”, which itself involves grassroots participation (p.42).

The Commissioner’s office itself would constitute a bureaucratic mini-world of its own with executive support, general counsel (and a “GBV-Related Human Rights Obligations Specialist”), executive director, two directors and four managers (one a liaison with the MMIWG Indigenous Ombudsperson) (p.42; details of each role on p.43: note the specific reference to navigating federalism by the general counsel).

This would be an ambitious endeavour and that is why in the end it is not exactly what the report recommends.

Proposing Less Than the Ideal in the Hope of Success

With the goal of practicality, recognizing that the “ideal” GBV Commission arrangement could lead to delay, the report recommends something less than the “maximum”. This is a dilemma faced by many in the business of bringing about change: revolution or reform? take a plea instead of going to trial? deciding whether to propose what you think the other side will accept rather than something more in the hope that at least the lesser will be accepted (something akin to LEAF’s process)? We face this kind of decision on big and small matters almost every day, although in most cases, our thinking through the more effective way to go, rather than what we really need or want, is done quickly and may be hardly noticeable.

In this case, LEAF is trying to be realistic, recognizing that the greater “the ask”, the less likelihood of success. Despite optimistic statements about the right timing, the report acknowledges that this is a time of cutbacks and distrust of public institutions (p.10). It is hard to argue with that.

However, an alternative is to make it clear what is necessary for the GBV commissioner to be effective and, if need be, hive off less crucial aspects later in the face of insufficient federal funding, but maintaining the core. (Although the report refers to the need for adequate and stable funding and includes criticism of funding in other initiatives, such as NAP, there is little else on this important issue. Presumably, the required funding is amorphously described as “a budget commensurate with Canada’s capacity as a wealthy nation and leader in responses to the global pandemic of GBV.” [p.45]).

The desirable tactic is to put the onus on the government to justify why they won’t provide the means for the commissioner to be as effective as possible; that requires being clear about what the GBV Commissioner Office needs and why — and why something less than that fails the governments’ goal to make Canada free of gender-based violence. It is harder to ask for more later than it is to cut back. However, LEAF’s decision is to pare down the commissioner’s role somewhat in the short term in anticipation that the government is more likely to respond positively.

For the LEAF report, the important thing is to “[p]rioritize the urgent establishment of the GBV Commissioner, even if this means falling short of maximum powers and maximum independence”. This means a “quick set-up and launch of the GBV Commissioner through an initial focus on engagement, monitoring, collaboration, and NAPGBV familiarization as opposed to investigation” (p.44). Thus the report recommends “granting the GBV Commissioner full powers of review on their own initiative or upon receipt of a request to review those matters within federal jurisdiction for future use but beginning with what the MCC called a “rapid and nimble build-up period”, prioritizing getting the office in place” (p.13).

This is a trade-off and could result in the GBV Commissioner remaining at this less effective level. Indeed, this appears to fly in the face of the report’s own caution: “It may be tempting to select from among the most easily achieved recommendations and be satisfied with quick successes. But our environmental scan of past reviews and inquiries underscores the importance of resisting this temptation” (p.45, quoting from MMC report, Vol. 6, p.11).

CONCLUSION

Writing this opinion now is, sadly, fortuitous timing, coinciding with the National Day of Remembrance and Action on Violence Against Women (December 6th). As someone who worked at a female-dominated workplace dealing with a female-related issue (pay equity), the December 6th massacre at the École Polytechnique in Montreal in 1989 (a “mass casualty”, we might say now) was a vivid reminder of “woman/feminist-hatred”: 14 victims of femicide because they dared to pursue a male-dominated profession, engineering. Before and since then, men have killed individual women, often their partners, sometimes not. And women continue to be subject to sexual assault by men who do not respect their autonomy. That there is still a great deal to do to eliminate violence against women is only too evident from the statistics in all the reports referred to here (see What It Takes, p.18.).

Kristy Kirkup reported that the Ottawa police labelled the killing of a woman as “femicide”, the first time this has been done (The Globe and Mail here). This in the context of many calls to amend Canada’s Criminal Code to include femicide as a form of homicide. As LEAF’s report notes, femicide “is a legal criminal category in many parts of the world” (p.18). It is not unreasonable to conclude that What It Takes would recommend that if the report were not limited to the one recommendation to establish the GBV Commissioner.

And so we have to conclude that everything we have been doing, everything we expect governments to do, everything advocates and grassroots organizations are doing, has not adequately addressed GBV in Canada. There is a desperate need for new — dare I say, especially since I don’t have any suggestions — radical ideas. Nevertheless, it is refreshing that not everyone thinks they need to reinvent the wheel; sometimes making the wheel better makes a preferable contribution. LEAF’s recommendation is not new or novel: calls for public accountability have been made for years and LEAF’s “support[]” for the MCC’s recommendation for an independent GBV Commissioner created by statute (p.36) is in line with that (see MMC recommendation 17, Vol. 1 and Vol. 3, p.460).

It can’t be avoided, however, that the GBV Commissioner will do no more than an ombuds normally does: “providing flexibility to issue a range of recommendations, with a specific persuasive role in guiding public and private actors to their implementation” (p.37). It can monitor public institutions to ensure that they carry out their responsibilities, but it would have no power to enforce either responsibilities or promises.

Even in its lesser form, the GBV Commissioner will carry a heavy burden because of the expectations about how it will undertake its tasks, something that with the postponement of its review or investigative function will no doubt loom larger in how it is assessed.

The reality is that the office will be expected to engage with communities even if it does not have the resources required to do so, which, given the scope of the communities involved, will be considerable. In particular, although the report recognizes the precedence of the Indigenous Ombudsperson over the GBV Commissioner as far as Indigenous matters are concerned, it would be foolish to think that even with the best will in the world there will not be tensions (over where funding is going, for example, or when attention to other groups seems to contradict the needs of Indigenous women and girls or vice versa).

Its purpose is to hold government to account – how easy to hold the GBV commissioner responsible if government fails, since after all the leadership and even the obligation will have been displaced, or at least that may be the perception.

Yet there’s no question that we incorporate intersectionality into all the work; the need for grassroots involvement; the acceptance that efforts to achieve substantive equality and to eradicate GBV are interrelated, with one affecting the other; and the reliance on international obligations to justify prodding government to do what it says it will do.

The GBV Commissioner’s mandate and expected process are amorphous: they cover a lot of territory both in relation to its identified tasks and in those with whom it must (and should) engage. Despite its structure with some specialized functions and even assuming it has sufficient and sustainable funding, it will need to home in on some particular issues (already in play) that can have the greatest impact (and this is even more necessary in the likelihood that it does not receive adequate funding): for example, educating boys and young men about equitable relationships with women, so that their reaction when things do not go their way is to abuse women or to engage in sexual assault; ensuring continued and stable funding for domestic abuse shelters; training professionals to identify the signs of GBV; and others.

Even without a GBV Commissioner, though, we need to get on with working with what we’ve got, such as working towards stable funding for transition houses. And we need to be as aware of how drawbacks in obvious issues or how unrelated issues affect efforts to achieve substantive equality as we are about the advances we might make. For example, restrictions on access to reproductive care in the United States has an impact on the scope of women’s freedom to exercise economic activities and to be independent of the family unit. We cannot be complacent about how developments and backward attitudes in the United States seep into Canada. Ultimately, in the broadest sense, the eradication of GBV requires an insistence on women’s autonomy.

I opened the first part of this post with a reference to the laughter that greeted MP Margaret Mitchell’s demand to Parliamentarians that attention be paid to domestic violence. That was in 1982. It is now nearly the end of 2024, over 40 years later. There’s no question things have changed. Yet the problem persists (see stories in The Globe and Mail on December 5th and 6th, prompted by the December 6th commemoration). As far as a GBV commissioner is concerned, its emphasis needs to be on the content of that we can do to address the situation; we already have much that tells us what the situation is. What we really want, perhaps, is an “audit” of all those initiatives that are supposedly addressing a range of issue leading to or arising from GBV: who is missing from their coverage? what is working (plump them up)? what is not (either fix them or get rid of them)? and, really, why is it that we can’t be “free” of it?

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