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Vancouver Rape Relief’s Submission to the Public Commission on Legal Aid

By Hilla Kerner
October 7, 2010
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Formally, the women in Canada have equal rights. In reality, the journey towards equality for women in the political, economic and domestic life is still very far from its end results – equality and liberty for women.

Canada’s commitment to women equality is granted in the Canadian Charter of Rights and Freedoms:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Canada signed and ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which sets international standards for eliminating gender discrimination.

In the Concluding observations of the CEDAW (Committee on the Elimination of Discrimination against Women) to Canada Forty-second session 7 November 2008, under the section regarding Access to legal remedies the committee is critical “that financial support for civil legal aid has diminished and that access to it has become increasingly restricted, in particular in British Columbia”

The Committee also criticized the cancellation of the “Court Challenges Program, which facilitated women’s access to procedures to review alleged violations of their right to equality”

The Court Challenges Program of Canada provided financial assistance for important court cases that advance language and equality rights guaranteed under Canada’s Constitution Section 15 in the charter:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

In 1996, Roland Kruska, armed himself with a shotgun, broke into his ex wife, Bonnie Mooney’s house, killed her best friend, shot her daughter and set her house on fire. During their five-year relationship, he tried to kill her once and assaulted her three times. Only six months earlier, Kruska had choked her so badly that he burst blood vessels in her eyes.

Seven weeks before the shooting, Mooney had gone to the Prince George RCMP, after Kruska had chased her in his vehicle at high speeds following an argument. After taking her statement and consulting with his superior, the constable told Bonnie Moony that there were insufficient grounds for a complaint under the Criminal Code. Her case was then closed and left uninvestigated.

Bonnie Mooney launched a tort action for negligence against the RCMP and B.C.’s Attorney General for failing to conduct an adequate investigation of her complaint that given 7 weeks before Kruska’s deadly attack. Her action was dismissed at trial on the basis that there was no causal link between the actions of the police and the attack. She appealed, and Vancouver Rape Relief and Women’s Shelter received funding from the Court Challenges Program to participate as an Intervener.

Vancouver Rape Relief argued that cases such as this and Jane Doe demonstrate the need to hold the police civilly liable in situations where they respond inadequately to male violence against women. Sexist views about women complainants frequently prevent police officers from following their own internal policies. The lack of adequate respond from the criminal justice system contradicts to charter values such as women’s rights to equality and security of the person.

On appeal, all three justices agreed that the RCMP owed a duty of care to Bonnie Mooney and that Constable conduct breached that duty. On the critical issue of causation, however, only on e judge found that the breach caused the harm. Accordingly, the appeal was dismissed with little reference to the Charter argument.

The cancelation of the court challenge program means the women and women’s group cannot challenge state frailer to protect women and other women’s equality – to court.

Another case that received funding from The Court Challenge program Sharon McIvor challenging the duscrimnition of the Indian act  Women who married non-Indians and their children got status, but the women’s grandchildren did not, while the grandchildren of Indian men and non-Indian women did.

Sharon McIvor fight described by NWAC and other women’s group as  one of the most important equality rights cases in Canada, affecting an estimated 300,000 people who were denied Indian status.

B.C. Supreme Court agreed the 1985 Indian Act’s section that determines who is given Indian status breach the Charter of Rights and Freedoms as well as international conventions on human rights, women’s rights and children’s rights.

In June 2007, Justice Ross declared the section “of no force and effect” because it “authorizes the differential treatment of Indian men and Indian women born before April 17, 1985, and matrilineal and patrilineal descendants born before April 17, 1985.”

drawing a distinction between male and female ancestors in determining who can be registered as a status Indian, the section offends the basic notion of human dignity.

The judge wrote that the section implies that “one’s female ancestors are deficient or less Indian than their male contemporaries. The implication is that one’s lineage is inferior. The implication for an Indian woman is that she is inferior, less worthy of recognition.”

The government is now trying to respond to the court decision with the proposed legislation of Bill C-3.

With no funding, challenges of the discrimination of aboriginal women cannot be brought to court.

Violence against women has been one of the most devastating expressions of women’s inequality, a harsh effective instrument in holding women back, preventing them from living a safe and free life and from exercising their full humanity. United Nations resolution 54/134[1] states that:

“Violence against women is an obstacle to the achievement of equality… violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of their full advancement, and that violence against women is one of the crucial social mechanisms by which women are forced into subordinate positions, compared with men”.

Rape, the violation of bodily and sexual autonomy has devastating effect on the individual victim and on all women in society by reinforcing subordination of women to men, by making women fearful, and by enforcing patriarchal dictates about proper female behavior.

In 2009 23,551 cases of sexual assault were reported to police in Canada.[2] This number represents only 8% of the actual incidents of rape and sexual assaults.[3]

It is almost impossible for rape victims to reach to conviction of a rapist in the criminal justice with the burden of “beyond a reasonable doubt.”

We support the use of civil law suits as a means for victims of rape to obtain justice and to hold the rapist accountable. We argue that Legal aid will provide the funding for women to be able to take their attackers to court.

As the feminist lawyer Pamela cross states: “The family remains an institution of significant inequality for women”

Women still do most of the child rearing and housework and who are more likely to stay at home with a sick child, to participate parent-teacher meeting or to take the child to medical appointments.

In 2006, more than 26% of all women in the paid workforce worked only part time.

The OECD (Organisation for Economic Co-operation and Development) estimates that women in Canada earn 65% of men’s income, and Statistics Canada asserts that for every dollar earned by men, women earned between 67 to 71 Cents.[4] 

Many women in Canada are living in poverty. In 200, more than third of all families headed by single mothers had incomes below the after-tax low income cut-offs.[5]

“Rates of poverty are higher for Aboriginal women, racialized women, women with disabilities, immigrant women, mother led single parent families and older women. Among the many roots of women’s poverty are discrimination, the lack of access to childcare, a sex segregated labour market in which women are heavily concentrated in low-waged, precarious work and for Aboriginal women, the legacies of colonization.”[6]

Women earn less in the paid workforce, and there for have fewer savings and pensions. This economic disadvantage intensifies women’s vulnerability to the power and control that may be exercised by the male spouse after divorce.

After divorce women are seriously disadvantaged financially, to the point they must live in poverty, relying on the state and its inadequate welfare rate.

Men using “Legal bullying” in family court to punish women for leaving them. Court orders are poorly enforced and are never truly permanent, meaning women are often forced to return to court again and again to deal with undertaken by their former male partner.

The “gender-neutral” approach in family court does not recognize the realities of women’s lives within the family. The court process is long and drawn out. Women often giving in to arrangements they do not really want simply because they do not have money to continue.

We argue that in order to compensate for the economic disadvantage of women in the relationship, when the relationship ends upon separation and divorce, all women who cannot afford the needed legal representation will get legal aid funding for their divorce and custody cases in family court.


[1] International Day for the Elimination of Violence against Women, resolution 54/134 of 17 December 1999

[2] The Daily, Tuesday, July 20, 2010. Police-reported crime statistics (http://www.statcan.gc.ca/daily-quotidien/100720/dq100720a-eng.htm)

[3] Measuring Violence Against Women: Statistical Trends 2006, Statistics Canada

[4] Not my mother’s labour market: The evolution of gender pay differences, Marie Drolet, Statistics Canada, 2008

[5] Women in Canada: A Gender-based Statistical Report, Statistics Canada 2006

[6] No Cherries Grow On Our Trees: A Social Policy Research Paper for the Take Action Project to Address Women’s Poverty and Violence Against Women, October 2008

The Public Commission on Legal Aid was established by the Canadian Bar Association BC branch in June of 2010 to engage the public of British Columbia in order to determine their priorities regarding legal aid in the province of British Columbia.

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