Status of Women Committee on May 1st, 2013

[David Langtry]

Let me say that we certainly advanced a similar position regarding the repeal of section 67. All Canadians—and it should not be restricted to non-aboriginal or non-first nations—should have the same rights as all other Canadians. That was the argument we advanced then for the repeal of section 67. We welcomed the repeal of section 67 and the process it went through.

When I appeared in the past, I was asked a question about whether the repeal of section 67 would address all of the issues in first nations communities. I'm paraphrasing the question somewhat. I answered that question the same way I answered this one.

Legislation alone will not deal with all of the root causes of issues in first nations communities. But as we said in the opening, it has been identified that the need for a fair, available, and accessible system of dealing with matrimonial real property is an urgent human rights issue.

So yes, it is necessary, from everything I've heard. There is no disagreement that there's a need for it. Some have suggested different ways to go about achieving that, but I would personally agree, based on my background, and on behalf of the commission, that there is certainly a need for that. But everybody should be mindful that it will not address the root causes, in many situations.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

We say the same. Just because it won't address all the causes, that doesn't mean it's safer to be at a standstill. We want to proceed with this too.

Before I got to be a member of Parliament, I was a teacher on a reserve. I would often see the hardship and the heartache, which of course a breakup in a family anywhere would cause. In dealing with the children, I saw that there was an awful lot of violence and heartache for these kids.

Do you agree that the presence of children in the family should be considered when determining who gets to maintain the occupation of a family home upon the breakup of a marriage or relationship?

[David Langtry]

If I may be permitted to put on the hat of my past practice, family law, I would say yes, certainly.

I was assistant deputy minister of Child and Family Services in Manitoba, which had responsibility for child welfare, domestic violence prevention programs, child day care, and so on.

In legislation, and in the courts, the most important thing is always the best interests of the child. Many courts, many decisions, and many writers will acknowledge that keeping a child in the matrimonial home is far better than requiring them to move. It has always been my position that possession of the marital home should follow the custody of the children.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Shelters will only provide them with shelter; that's all.

I agree with you, as we all do, that children need to stay in their homes, where they feel comfortable and at ease and there's not such a big mixup for the poor little ones as there would be if they had to go into a different environment. I'm happy to hear you say that you also feel that the children are better off in their homes, even better off than going to a shelter.

Does the CHRC agree that access to emergency protection orders will help to ensure the safety of a person who is in a situation of family violence?

[David Langtry]

Again, if I may be permitted to say so not on behalf of CHRC, protective orders are always wanted in urgent or emergency situations. Unfortunately, we know that whether in a first nations community or beyond, the protective orders do not always provide safety and security for the person. I'm in no way, shape, or form saying that they shouldn't be available. That's just the reality.

As we heard from aboriginal women, the concern is that even if they have all the protective orders but are perhaps required or still want to remain within their community, they may be subject to retribution for taking these actions, and their health and safety and security may well be at risk.

So yes, I would support the protective order, but then it becomes an issue of enforcement and observance within that first nations community.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madame O'Neill Gordon.

Madame Bennett, you have seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thank you very much, and thank you for our testimony.

I think the last comment was very important. Whether it's in cities...or in rural communities in particular, where everybody knows where somebody lives, unless there's 24/7 protection, a piece of paper doesn't really do it in those situations. Women have to make their own decisions based on their safety and their perceived risk of retribution.

As you know, those of us on our side felt that Wendy Grant-John was very eloquent in stating that the legislation on its own wouldn't do the job, that there needed to be provisions for the non-legislative outstanding issues that you've outlined.

I guess we have to say on this side, and on the record, that our answer to your three questions will be no, no, and no. Unless there is an actual commitment, we cannot allow the government to think they can pass this piece of legislation—which allows for a protection order but then walks away without any further commitment. There's not a lot of trust that this will happen, whether it's water or matrimonial real property.

I guess the government is going to push this thing through anyway. We need to know, how can you help us fix it? I guess one issue would be the capacity for first nations to build the capacity. As you said in the repeal of section 67, there was a three-year transition period to allow people to build the capacity. Certainly, what we've heard is that 12 months will not be enough.

I guess they're also talking about a centre of excellence that won't even be up and running when this bill is passed. Would you believe that 12 months is enough to create capacity in enough communities to make this at least work a little bit, or would you suggest that it be 36 months, like it was for the repeal of section 67?

[David Langtry]

Again, from the experience we had, we welcomed the 36 months. We found it very helpful to be working with first nations, both people and governments, in providing the information and so on.

In terms of providing capacity, capacity, of course, is a very broad catch-all, if you will, for a number of things, so for the human and financial resource issue, no. But in terms of developing capacity, again, I would hearken back to the comments I made about having an alternate dispute mechanism in place. Many first nations, because of the work we have been doing with them and that they've been doing on their own...we have offered assistance to those communities who may wish for some help and guidance. We developed the tool kit in conjunction with first nations, with their input. They're well on their way.

It would seem to me that if they are faced with the potential of it becoming provincial-territorial after one year, and they choose not to have that—they would rather govern it themselves—they might either avail themselves of the tool kit that I saw the AFN develop for model legislation or they may move toward having an alternate dispute mechanism that may deal with some of the issues.

As I said before, our experience in working with first nations communities is that many of them look for a fulsome engagement with their communities. One year just doesn't provide that when you have the limitations and the restrictions that face first nations communities right now in this country. Would a longer period of time be welcome? Yes, but I think first nations have proven resilient in the past, and I think they would work as hard as they can.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Commissioner, I know when we did the study on the changes to the Divorce Act and custody, certainly there was very poignant testimony that if there's violence or if there's a par differential like that, the ADR process is sometimes not appropriate. People actually need to have a different route. Do you have any views on that, with your experience?

[David Langtry]

Absolutely. Certainly that's been identified in the cases that come now, with the existing ones, where there's an alternate dispute. Oftentimes, because of a particular vulnerability, whether because of mental health issues or a sexual harassment or sexual abuse complaint, we will hear from the complainant that they don't want to be put into that ADR process. The reality is, of course, that many ADR practitioners address power imbalance, but some of the other issues.... So if it were to put a woman at risk at all by being required to go through that process, then we would say, in the circumstances of this particular case, that this would not be a viable option to refer out and we would receive that complaint.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thank you.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. Bennett.

You still have 30 seconds, if you have one last question.

[Carolyn Bennett, Liberal, St. Paul's, ON]

No.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Fine.

So now we'll begin the second round of questions. Ms. James has the floor.

You have five minutes.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Madam Chair. Welcome to our committee. I missed the last meeting, so it's a pleasure to see you today, and also, Mr. Langtry, our guest.

I listened to your opening remarks and some of the answers you've given to my colleagues and also across the way. You mentioned something about a lack of domestic shelters. I'm just trying to get a handle on this. What would be the reason that a woman on a reserve, or a woman and her children, would need to go to a shelter? Perhaps you could just explain why that is, because I heard you say it and I want to understand why a woman would need to go there in the first place.

[David Langtry]

Certainly. A victim of domestic violence who is afraid to be in her own home will, on an emergency basis, need to seek out for herself, and oftentimes her children, a safe place to go, a safe house, which would be a domestic violence shelter.

The difficulty, of course, of not having one in a community, particularly in a remote community is, how do the woman and children make their way to another centre? I would have to say, having been responsible, that there aren't likely enough shelters in Manitoba generally anywhere, not just in first nations communities.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

I live in the riding of Scarborough Centre; it's part of the GTA. I do not live on a reserve. If I were in a situation of domestic violence, I would not have to leave my home; I would not be there living in fear. Most times the person who is accused, or the abuser, is actually removed from the home and the person who is subjected to the violence has the opportunity to stay in that home. It's a right that I and everyone in this committee and everyone here in this room has equal rights to: the matrimonial property, or where they live with their family.

So when I hear that one of the reasons a woman might have to go to a shelter is because she can't stay in her home, or she's afraid to be there, I can only think that this legislation, Bill S-2, is going to help that issue in particular. There is no legislation that's going to cure all situations and all issues, neither in the rest of Canada nor off reserve.

In your opinion, do you not believe that Bill S-2 will reduce the need for many women living on reserves to have to flee their own homes and go to a shelter?

[David Langtry]

I'm not sure about that, again because of what we've heard from aboriginal women, not just for me.

You're absolutely right that a woman would have every right to go to court and get an order of sole occupation in an urgent situation, or the police would come and remove the husband from the home, and those kinds of things. Sometimes they don't avail themselves of that because they're afraid that if they try contacting the police, they will come to very, very serious harm. The same problems would occur but perhaps be even greater in a first nations community.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

So it's a real issue. I think in some cases, when we think of domestic violence, the people who abuse do it because they can get away with it. If someone thinks for a moment that they're going to lose total access to their matrimonial property, or the home they live in or share with their wife or their spouse, and they think there's an opportunity that they might actually lose that possession, do you think that would curb someone so that they would actually take a second look and stop the abuse, or treat the other person in a more respectable way?

Generations and generations back, women fought to have the right to vote. When I think back—before my time, obviously—women were not always treated equally in the family home either. But times have changed.

I have to tell you, though, that not too long ago I spoke to my husband about this very issue, about the need for Bill S-2. He could not believe that in this day and age, here in Canada, a country like Canada, there are women living here—in Canada—who do not have equal rights to matrimonial property and are forced out of their home. He could not believe it.

I guess I'm asking you that question, because although Bill S-2 may not solve all the problems on reserves, certainly it will help some. Do you agree?

[David Langtry]

I would again draw an analogy. When I told people that before June 2008, 700,000 aboriginal people in this country did not have access to the Canadian Human Rights Act, did not have equal access to human rights protection and the ability to seek redress for abuse, they also were astounded that this would happen.

That changed, of course, and at that time I also said the mirror legislation won't necessarily.... But legislation absolutely is needed.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

[The Chair, NDP, Lysane Blanchette-Lamothe]

I have to interrupt you.

Madame Ashton, for five minutes.

[Niki Ashton, NDP, Churchill, MB]

Thank you very much.

Thank you for your presentation.

On the legal side of things, Mr. Langtry, I know you obviously have quite a bit of experience there. One of the concerns that's been raised is the provincial court's capacity to deal with what are the complex land arrangements, land codes, that first nations have that differ across the board. We've heard about the very limited transition period, but there isn't much talk around the provincial court's capacity to deal with these codes.

I wonder if you could speak to that, and if you perhaps share that concern.

[David Langtry]

I don't feel I am in a position to be able to speak to that, only because, apart from a limited jurisdiction that we may have in terms of dealing with transfer of certificates of possession and the like...if we received a complaint on that. But beyond that, in terms of the lack of fee simple and ownership, certificates of occupation, and certificates of possession, it's not something within our experience.

I don't know if you have any....

[Niki Ashton, NDP, Churchill, MB]

I can move on to another question. Thank you.

You do raise questions around the capacity, and you certainly make reference to the real inequalities that exist on very basic levels in first nations when it comes to capacity and resources.

I wonder if you could speak to that for just a minute, to some of those root causes, but also the inequities that exist in terms of capacity and resources on first nations that are problematic.