juda.strawczynski

About Juda Strawczynski

This author has not yet filled in any details.
So far Juda Strawczynski has created 39 blog entries.

Canada in Violation of International Human Rights Law – Pressure mounts to hold national inquiry

By Lara Koerner Yeo

On Friday, 6 March 2015, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) released an unprecedented report. The report finds Canada in violation of articles 2, 3, 5, 14, and 15 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[1] The CEDAW Committee states that Canada has failed to take sufficient action to respect and protect the human rights of Aboriginal women, including their rights to life and personal security. Thus, by omission, Canada is in contravention of its obligations under the Convention to eliminate all forms of discrimination against women, including the obligation to equally protect Aboriginal women under the law and provide effective remedies when they are subject to violence.

This is the first time an international human rights expert body has found Canada to be in contravention of international human rights norms. The report has been recognized as “extremely important” for Canada, and an “embarrassment for Prime Minister Stephen Harper’s Conservative government.”

The report is the result of a summer 2013 inquiry undertaken by CEDAW members Niklas Bruun and Barbara Bailey into the situation of violence against Aboriginal women and girls in Canada. Canada gave its permission for CEDAW Committee members to investigate in spring 2013, two years after the Canadian Feminist Alliance for International Action (FAFIA) and the Native Women’s Association of Canada (NWAC) requested a CEDAW Committee inquiry into missing and murdered Aboriginal women under article 8 of the Optional Protocol to CEDAW.

For those who devote their professional lives to the advancement and domestic implementation of international human rights law, this kind of report is game changing. As Shelagh Day, a long-standing, outspoken advocate on the issue at the UN and Inter-American Commission on Human Rights writes, “for those of us who have been working on equality rights law for a long time, this decision includes analysis and findings that we have been seeking since section 15 of the Charter was introduced.” Day highlights three key ideas that the report brings to the fore: the interconnectedness and indivisibility of economic, social, cultural, political and civil rights for the practical realization of women’s human rights; systemic discrimination, including the finding that State actors and institutional mechanisms can be engaged in, and thus perpetuating, such discrimination; and that the failure of a State to act can be the violation. Such explicit recognition of these things, and their role in connection to States’ violations of women’s rights, is norm-advancing.

National Aboriginal Organizations, including NWAC and the Assembly of First Nations (AFN), have been quick to respond to the report release. Dawn Harvard of NWAC, in a joint NWAC-FAFIA press release, questions, “What more does Canada need?” The AFN affirms that the issue of violence is “a Canadian issue,” and the particular findings of the CEDAW report “cannot be ignored.” The Union of BC Indian Chiefs writes that Canada is in “DENIAL” about the efficacy and comprehensive nature of its current response to the situation of violence against Aboriginal women and girls; and both Amnesty International and Human Rights Watch responded to the release with statements critiquing Canada’s response to the report.

The responses by these Aboriginal and human rights organizations both highlight the great need for improved state response, and reflect the general sentiment of civil society in Canada today. Myriad public and private actors, policy and civil society stakeholders, call for a national inquiry into violence against Aboriginal women and girls. In a recent Angus Reid poll, almost three-quarters of Canadians supported a national inquiry.

While the CEDAW Committee report recommends that Canada launch a national inquiry, Canada rejected the three recommendations regarding a national inquiry and action plan.[2] Canada disagrees that it has violated the Convention,[3] and did not make any comment on how it would proactively change its current policy and programmatic response on the issue to better align with its human rights obligations.

The CEDAW Committee report recommendations will be the newest set of recommendations to be added to the compendium of report recommendations on the subject amassed by the Legal Strategies Coalition. The Coalition’s study, recently released in late February, found that only a few of the over 700 recommendations on improving State response to violence against Aboriginal women in Canada have been implemented by Canadian governments. The Coalition reviewed fifty eight reports, studies and inquiries and found that there is a consensus among reports on the systemic nature of the root causes of violence and a need for a national inquiry—something the CEDAW Committee report unequivocally reaffirms.

The release of the Legal Strategies Coalition report, on 26 February 2015, was followed by the national roundtable on missing and murdered Aboriginal women on, 27 February 2015. The roundtable was framed as a “beginning” – a way to start dialogue between provincial, territorial, and federal ministers, and with representatives from affected Aboriginal families. The outcome led to no substantive change on the federal government’s position vis-à-vis an inquiry—a position that unsurprisingly mirrors Canada’s response to the CEDAW Committee report.

The federal government is set to roll out its Action Plan to Address Family Violence and Violent Crimes Against Aboriginal Women and Girls on 1 Apr 2015. Of concern, however, is how federal leadership continues to frame the issue and response initiatives. Amnesty International Canada has characterized Federal Status of Women Minister Kellie Leitch’s framing of aspects of the issue, such as the perpetrators of violence, as “incorrect and dangerous.” The Action Plan—something that bears no evidence of being comprehensive and national in scope, but instead a plan that maintains a “piecemeal and fragmentary” status quo—does not heed the recent Inter-American Commission on Human Rights, Legal Strategies Coalition and CEDAW Committee report recommendations for a comprehensive national inquiry and/or a national action plan.

Advocates maintain that the February 2015 roundtable, Action Plan, and decision to hold another roundtable before the end of 2016, do not lessen the need for an inquiry. There is no question that Canadian governments are taking action, Ontario serving as an example; however, in light of the current findings by the CEDAW Committee, there is legitimate cause to question the adequacy of regional responses, rather than a comprehensive, national inquiry and/or action plan. The federal government remains opposed to such national action—a stance in perpetual opposition to the provinces, territories, key Aboriginal and non-Aboriginal civil society stakeholders, and international and regional human rights expert bodies.

[1] Committee on the Elimination of Discrimination against Women, Report of the inquiry concerning anada of the Committee of the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination, CEDAW/C/OP.8/CAN/1, 6 March 2015, at para 211, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_1_7643_E.pdf>.

[2] Committee on the Elimination of Discrimination against Women, Observations of the Government of Canada on the report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/CAN/2, 6 March 2015, at para 122, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_2_7644_E.pdf>.

[3] Ibid at para 6.

Lara Koerner Yeo is a first year student at the University of Toronto, Faculty of Law. She was a research assistant in the women’s rights division of Human Rights Watch and worked on the report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada.” She currently works with the Canadian Feminist Alliance for International Action.

By |March 31st, 2015|Blog|

Is CETA the Iron Curtain to freedom of movement between Canada and the European Union?

By Ashli Pinnock 

In an increasingly globalized economy, the Comprehensive Economic and Trade Agreement (CETA) currently in negotiations between Canada and the European Union seems to be a match made in heaven. This is the biggest bilateral initiative for Canada since the North American Free Trade Agreement (NAFTA) and has been in the works since 2007.

From a Canadian perspective the benefits of CETA are straightforward. As Prime Minister Harper urges that Canada’s top priority is to create jobs and opportunities for Canadians in every region of the country, Canadian citizens are likely to stop their inquiry there. However, the influence this agreement has had on international human rights is counterintuitive to the advancement of international human rights from a Canadian standpoint. Inevitably, the opening markets for Canadian goods and services that the agreement aspires to opening political borders as well. With this comes the free flow of people. Instead of asking how this trade agreement may benefit all Canadians perhaps it’s time to ask how this trade agreement will continue to affect people beyond our borders?

Although Canada has often been seen as a world leader among host country for refugees seeking asylum, nearly five years ago Canada implemented visa restrictions for a number of European countries as a means of deterring the number of “bogus” Roma asylum claimants. Was this amendment to the refugee system Canada’s way of skirting a limitation on freedom of movement or freedom from fear? Diplomats and economists explained this move as a way of ensuring that the free-trade agreement did not collapse as a result of the introduction of a visa program for Roma people – one of Europe’s most persecuted populations.

Accordingly, with the solidification of the agreement, the Canadian government has since lifted these restrictions and refurbished the system for considering asylum cases. This was spurred by the suggestion that many European nations with restricted access to Canada as a result of the visa requirements would not ratify CETA. Most recently citizens of the Czech Republic were granted travel access to Canada for up to six months without a visa. What does this mean for the Canadian refugee system?

History has shown that the Canadian response to refugees is not always based on a general policy to refugees through the Immigration and Refugee Protection Act, rather it is often contingent on the relation Canada has towards a particular nation. Is this the best way to regulate the refugee system? Obviously the decision as to whether or not access should be granted to refugees should focus on international human (i.e. on genuine principles outlined in The Convention relating to the Status of Refugees) Canada’s decision to shun the ongoing and longstanding violence faced by the Roma people living in the European Union brings into question the unclear trade-offs between economic prosperity and human rights. Has human rights been forgotten in the discourse of the CETA?

By |March 19th, 2015|Blog|

What’s IHRL Got to Do with It?

International Human Rights Law & the Charter of Rights and Freedoms

By Jena McGill

Early in the life of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada recognized international human rights law (IHRL) – including “declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms” – as a “relevant and persuasive” source for interpreting the rights and freedoms guaranteed by the Charter.[1]  Chief Justice Dickson concluded, “[t]he Charter should be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”[2]  More recently, the Supreme Court has expanded the scope of relevant IHRL sources beyond Canada’s formal commitments, confirming that the Charter should be interpreted in light of “the current state of international thought on human rights” more generally.[3]

The use of IHRL, broadly defined, is now a mainstay in the interpretation of Charter rights; indeed, the general principle that that the Charter should be interpreted, where possible, in a manner consistent with IHRL is widely accepted.[4]  Nevertheless, using IHRL to breathe life into Charter guarantees has proven easier said than done.

For starters, judicial reliance on IHRL in Charter interpretation is an entirely discretionary exercise.  In some circumstances, a court may refuse to consider IHRL sources, even where relevant documents or principles exist.  For example, in Gosselin v Quebec, the Supreme Court was faced with the question of whether Quebec’s provision of very low levels of social assistance to young adults, insufficient to meet their basic needs, infringed the section 7 Charter right to “security of the person.”[5]  In interpreting “security of the person”, the majority of the Court declined to rely on the International Covenant of Economic, Social and Cultural Rights, and in particular its right to an “adequate standard of living…including adequate food, clothing and housing”. [6]  Why the majority of the Court found it unnecessary to address this clearly relevant IHRL source in interpreting section 7 is left unexplained.[7]  When will IHRL be “relevant and persuasive” to the interpretation of Charter rights? What criteria should a court use to determine relevancy and persuasiveness in this context?

Even where IHRL is found to be “relevant and persuasive” to interpreting a Charter guarantee, it is unclear exactly how a court should make use of that source in a principled manner.  This difficulty comes into sharp relief in circumstances of competing IHRL sources or in situations where the scope of an IHRL right is narrower or more expansive than a Charter right.

In Canadian Foundation for Children, Youth and the Law v Canada, the Supreme Court had to assess whether a Criminal Code defence to assault related to the corporal punishment infringed children’s “security of the person” rights guaranteed by section 7 of the Charter.[8]  The Court divided on which IHRL sources were most compelling.  The majority relied on the fact that the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child (CRC)[9] do not “explicitly require state parties to ban all corporal punishment of children” to conclude that the corporal punishment defence was not a violation of section 7.[10] Justice Arbour, in dissent, was persuaded by the Concluding Recommendations of the Committee on the Rights of the Child, which stated that parties to the CRC ought to prohibit physical punishment of children.[11]  Should the language of formal treaties “trump” the opinions of monitoring bodies in Charter interpretation?  How should a court resolve inconsistencies between treaty language and treaty interpretation?  Does it matter that monitoring bodies like the Committee on the Rights of the Child are political, not legal entities?

To be sure, the realization of Chief Justice Dickson’s presumption of consistency between IHRL and the Charter is a highly complicated exercise, requiring courts to engage important considerations including the compatibility between IHRL and Canada’s unique constitutional order and the inherently political, often contentious, nature of the international human rights system and the various IHRL agreements born of that context.

What’s clear, however, is that the current approach to using IHRL in interpreting Charter rights leaves too many questions unanswered.  While IHRL has been an important, if inconsistently utilized, interpretive aid in Charter jurisprudence to date, the time has come for the development of a more principled, systematic approach to engaging IHRL in the Charter context.  Only then might we realize the full potential that lies at the intersection of IHRL and the Charter.

[1] Reference re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 at para 57 (Dickson CJ, dissenting).  International law is also relevant to assessing limits on Charter rights under section 1: Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 at 1056-57.

[2] Public Service, ibid.  More recently, see Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47.

[3] Ontario (Attorney-General) v Fraser, 2011 SCC 20 at para 92, citing Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 at para 78.

[4] Slaight Communications at 1056.

[5] Gosselin v Quebec (Attorney General), 2002 SCC 84.

[6] International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 11.

[7] Gosselin at para 93.

[8] Canadian Foundation for Children, Youth and the Law v Canada (Attorney-General), 2004 SCC 4.

[9] International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[10] Canadian Foundation for Children at para 33.

[11] Canadian Foundation for Children at para 187-88 (Arbour J, dissenting).

By |March 12th, 2015|Blog|

21st Annual Canadian International Law Students’ Conference

Presented by Osgoode International Law Society (OILS), Canadian Lawyers for International Human Rights (CLAIHR) Osgoode Chapter and the International Law Society at the University of Toronto Law School

Lillian H. Smith Library
239 College Street
Toronto, ON M5T 1R5
Canada

Friday, 13 March 2015 from 1:30 PM to 7:00 PM

Register at:

 

CONFERENCE HIGHLIGHTS

Panel: International Human Rights Law & Security/Anti-Terrorism

Sukanya Pillay, Canadian Civil Liberties Association

Juda Strawczynski, Canadian Lawyers for International Human Rights (CLAIHR)

Hugh Segal, Massey College, University of Toronto

 

Keynote Address: Anti-Terrorism & International Human Rights Law: Does Public International Law Matter?

Hugh Segal, Massey College, University of Toronto

 

Career Panel: Opportunities in Public & Private International Law

Kathleen Davis, Adjunct Professor, Osgoode Hall Law School

Laura Murray, Associate, Bennett Jones LLP

Christina Doria, Associate, Baker & McKenzie LLP

 

Panel: International Law & Corporate Social Responsibility

Scott Jobin-Bevans, Caracle Creek International Consulting Inc.

Cory Wanless, Klippensteins Barristers & Solicitors

Dr. Shin Imai, Professor, Osgoode Hall Law School

 

Concluding Remarks:

Juda Strawczynski, CLAIHR

 

 

 

By |March 11th, 2015|Past Events|

Missing and Murdered Aboriginal Women and Girls: A Documented Human Rights Issue in Canada

By Lara Koerner Yeo

Aboriginal women and girls are disproportionately impacted by violence in Canada. They are more susceptible to disappearance and homicide than non-Aboriginal women and girls, and some reports indicate that police are less efficient in responding to the crimes that victimize them.[1]

Violence against Aboriginal women and girls, as well as the lack of police action in effectively addressing these issues, is well documented by international human rights bodies. Numerous United Nations treaty bodies, including the Human Rights Committee (HRC),[2] the Committee on the Rights of the Child,[3] the Committee on the Elimination of Racial Discrimination,[4] the Committee on the Elimination of Violence against Women (CEDAW),[5] and the Committee Against Torture,[6] have issued reports recommending that Canada improve its response to racialized and sexualized violence against Aboriginal women and girls. In addition to the core human rights treaties monitored by these committees, there are a number of human rights instruments used to reinforce a normative framework, which imposes a positive obligation on Canada to address the issue of violence against women.[7] Canada is thus obliged by international law to “exercise due diligence to prevent, investigate, prosecute, and punish acts of violence against women and girls.”[8] These documents provide further guidance on how to interpret and implement treaty standards to better realize women’s right to security and bodily integrity.

Aboriginal and women’s organizations in Canada, among other human rights and social justice organizations, have been advocating for improved State and police response to violence against Aboriginal women and girls for over a decade. The Native Women’s Association of Canada (NWAC) and the Canadian Feminist Alliance for International Action (FAFIA) have advocated before UN treaty bodies for seven years on this issue.[9] They have also initiated and participated in two thematic briefings on this issue in 2012 and 2013, at the Inter-American Commission on Human Rights (IACHR).[10] As a member of the Organization of American States, Canada has agreed to respect and protect the rights set out in the American Declaration of the Rights and Duties of Man and respond to any rights violations under the Declaration.

In 2013, IACHR Commissioners, and the CEDAW Committee, both visited Canada to investigate the issue of violence against Aboriginal women and girls. The IACHR released a groundbreaking report on January 12, 2015, which was the first report by an expert human rights body to address the issue of missing and murdered Aboriginal women.[11] The report pointed “to Canada’s history of colonization, long standing inequality, and economic and social marginalization as the root causes of violence against Indigenous women.”[12] The CEDAW report is forthcoming.

Canada will be reviewed by the HRC, the Committee on Economic, Social and Cultural Rights, and CEDAW in 2015 through 2017. The reviews will focus on years 2006 to 2014. The upcoming reports and concluding observations flowing from these reviews are expected to be instructive and include the issue of violence against Aboriginal women and girls.

What do domestic stakeholders say?

There is an overwhelming call for a national public inquiry into the violence against Aboriginal women and girls. Many public stakeholders — such as Premiers, the Federal Ombudsman for Victims of Crime, the Canadian Human Rights Commission, National Aboriginal Organizations, and other social justice and human rights organizations— have called for a national inquiry. Domestic stakeholders are in agreement with the former UN Special Rapporteur on Indigenous Peoples, James Anaya, who also called on Canada to conduct an inquiry.

Many organizations have also advanced the need for a national action plan to complement the findings and recommendations of an inquiry. The creation of National Action Plans on Violence Against Women by UN member states by 2015 is one of the five key goals of the UN Secretary General’s UNiTE to End Violence against Women campaign. While the Canadian government has recently established an Action Plan to Address Family Violence and Violent Crimes Against Aboriginal Women, this plan does not serve as a comprehensive national-level plan.[13] The IACHR report echoes the call of advocates by strongly supporting the creation of a national-level action plan or inquiry.[14]

What is the government response?

The federal government stands by its 2014 Action Plan, and other related initiatives, such as: the special parliamentary report on the issue; the spring 2014 Royal Canadian Mounted Police report; and the on-going Civilian Review and Complaints Commission for the RCMP public interest investigation into allegations of police abuse in northern British Columbia.

Stakeholders hope that the February national roundtable on the issue of missing and murdered indigenous women will initiate a national dialogue; however, given the federal government’s current position, it is unclear whether or not this meeting, or subsequent ones, will result in substantial policy change. Time will tell.

Lara Koerner Yeo is a first year student at the University of Toronto, Faculty of Law. She was a research assistant in the women’s rights division of Human Rights Watch and worked on the report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada.” She currently works with the Canadian Feminist Alliance for International Action.

For more information see:

-The Native Women’s Association of Canada Sister’s in Spirit initiative: http://www.nwac.ca/programs/sis-research.

-The Human Rights Watch report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada,” for a comprehensive discussion on Canada’s human rights obligations to respond to violence against women: http://www.hrw.org/reports/2013/02/13/those-who-take-us-away (see section V. Canada’s Obligations Under International Law at 77).

-Amnesty International Canada’s Stolen Sisters report and advocacy: http://www.amnesty.ca/our-work/issues/indigenous-peoples/no-more-stolen-sisters.

-The Canadian Feminist Alliance for International Action’s Campaign of Solidarity for Aboriginal Women, for information on the NWAC and FAFIA IACHR submissions: http://www.fafia-afai.org/en/solidarity-campaign/.

-The Canadian Network of Women’s Shelters & Transition Houses report on the need for a national action plan on violence against women in Canada: http://endvaw.ca/NAPonVAW.

-The Canadian Centre for Policy Alternatives report, “Progress on Women’s Rights: Missing in Action,” https://www.policyalternatives.ca/publications/reports/progress-women%E2%80%99s-rights-missing-action (see the section on Violence Against Aboriginal Women and Girls, p 43).

To follow this issue on social media, popular hashtags include: #mmiw, #mmaw, #AmINext, #ImNotNext, #HwyofTears, #itstartswithus.

Footnotes:

[1]                      Vivian O’Donnell and Susan Wallace, “First Nations, Métis and Inuit Women,” Women in Canada: A Gender-based Statistical Report, Statistics Canada Catalogue no 89-503-X, July 2011, at 42-3, online: <http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11442-eng.htm>; Royal Canadian Mounted Police, “Missing and Murdered Aboriginal Women: A National Operational Overview,” Catalogue no PS64-115/2014E-PDF, 2014, at 3, online: <http://www.rcmp-grc.gc.ca/pubs/mmaw-faapd-eng.pdf>; and, Human Rights Watch, Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada (New York: Human Rights Watch, 2013), at 78, online: Human Rights Watch <http://www.hrw.org/sites/default/files/reports/canada0213webwcover_0.pdf> [Human Rights Watch].

[2]                      UN Human Rights Committee, “Consideration of reports submitted by states parties under article 40 of the Covenant Concluding observations of the Human Rights Committee Canada,” CCPR/C/CAN/CO/5, April 20, 2006, at para 23, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/CAN/CO/5&Lang=En>.

[3]                      UN Committee on the Rights of the Child, “Consideration of reports submitted by States parties under article 44 of the Convention Concluding Observations Canada,” CRC/C/CAN/CO/3-4, October 5, 2012, at paras 48, 49(b), online: OHCHR http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fCAN%2f3-4&Lang=en>.

[4]                      UN Committee on the Elimination of Racial Discrimination, “Consideration of reports submitted by States parties under article 9 of the Convention Concluding observations of the Committee on the Elimination of Racial Discrimination,” CERD/C/CAN/CO/19-20, March 9, 2012, at para 17(b), online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CAN/CO/19-20&Lang=En>.

[5]                      UN Committee on the Elimination of Discrimination against Women, “Concluding observation of the Committee on the Elimination of Discrimination against Women Canada,” CEDAW/C/CAN/CO/7, November 7, 2008, paras 32, 53, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/CAN/CO/7&Lang=En>.

[6]                      UN Committee against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, “Consideration of reports submitted by States parties under article 19 of the Convention Concluding observations of the Committee against Torture Canada,” CAT/C/CAN/CO/6, June 25, 2012, at para 20, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT/C/CAN/CO/6&Lang=En>.

[7]                      UN Committee on the Elimination of Discrimination against Women, “General Recommendation No. 19: Violence against women,” (Eleventh session, 1992), paras 24(a), (t), online: UN <http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19>; UN Human Rights Committee, “HRC, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties: general legal obligation on states parties to the Covenant,” U.N. Doc CCPR/C/21/Rev.1/Add 13, (Eightieth session, 2004), at para 8, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.13&Lang=en>; UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, A/HRC/7/3, January 15, 2008, at paras 30-32, online: UN <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/101/61/PDF/G0810161.pdf?OpenElement>; UN Declaration on the Elimination of Violence Against Women, December 20, 1993, GA res 48/104, 48 UN GAOR Supp (No 49) at 217, UN Doc A/48/49 (1993), Art 4(c), online: UN <http://www.un.org/documents/ga/res/48/a48r104.htm>; Fourth World Conference on Women, Report of the Fourth World Conference on Women (“Beijing Declaration and Platform for Action”), Beijing, 4-15 September 1995, A/CONF.177/20, October 17, 1995, at para 124 (b), online: UN <http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf>; see Human Rights Watch, supra note 1 at 78.

[8]                      Human Rights Watch, supra note 1 at 78.

[9]                      FAFIA, “Campaign of Solidarity with Aboriginal Women CEDAW Inquiry,” 2014, online: FAFIA <http://www.fafia-afai.org/en/solidarity-campaign/#reports>.

[10]                    FAFIA, “Campaign of Solidarity with Aboriginal Women, The Inter-American Commission on Human Rights,” 2014, online: FAFIA <http://www.fafia-afai.org/en/solidarity-campaign/#the-inter-american-commission-human-rights>.

[11]                    “Murders and disappearances of Indigenous women caused by inequality, marginalization – Canada must act to prevent violence: Inter-American Commission on Human Rights”, PR Newswire (12 January 2015), online: <http://www.prnewswire.com/news-releases/murders-and-disappearances-of-indigenous-women-caused-by-inequality-marginalization—canada-must-act-to-prevent-violence-inter-american-commission-on-human-rights-288271071.html>.

[12]                    Ibid.

[13]                    Inter-American Commission on Human Rights, Missing and Murdered Indigenous Women in British Columbia, Canada, OEA/Ser.L/V/II, Doc 30/14, 21 December 2014, at paras 295-7, online: OAS <http://www.oas.org/en/iachr/reports/pdfs/Indigenous-Women-BC-Canada-en.pdf>.

[14]                    Ibid at para 309.

By |March 5th, 2015|Blog|

2014 Year in Review – Tsilhqot’in Nation v. British Columbia: A Landmark Decision from the Supreme Court of Canada

By Lara Koerner Yeo

On June 26, 2014, the Supreme Court of Canada (SCC) released a landmark decision on Aboriginal title in Canada. In Tsilhqot’in Nation v British Columbia,[1] the Court establishes Aboriginal title for the first time in Canada, recognizing the Tsilhqot’in Nation as a holder of Aboriginal title across a swath of land in northwestern British Columbia. The decision further clarifies the test for determining Aboriginal title and the scope of the rights that flow from it. In addition, the Court describes the obligations of the Crown, and third parties, when these entities seek to infringe upon Aboriginal title.

Decision provides further clarity on the test for establishing Aboriginal title

Central to this decision is its determination that First Nations can legitimately hold title over large swaths of land. The ruling overturns the BC Court of Appeal “small spots” or site-specific framework for assessing Aboriginal title claims.

The Court reaffirmed and clarified the three-pronged test for Aboriginal title set out in Delgamuukw v British Columbia, which requires proof of sufficient, continuous, and exclusive occupation. An Aboriginal First Nation must illustrate: (1) that it maintained a presence over the land in such a way that a third-party would, and can, recognize that presence; (2) that it was present on the land prior to Crown sovereignty; and, (3) that it exercised exclusivity over the land.[2] Canadian courts are obliged to consider an Aboriginal title claim in a culturally sensitive way, recognizing the group’s specific custom and law, when deciding whether or not a claim satisfies the test.[3]

The Court further elaborated on the bundle of property rights flowing from Aboriginal title in the Tsilhqot’in decision. Property rights flowing from Aboriginal title include: “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”[4]

The decision further clarifies Crown and other third-party obligations when approaching use of Aboriginal title lands

The Tsilhqot’in decision changes how Aboriginal First Nations, the Crown, and third parties are required to act in regard to land use projects on Aboriginal title lands. If the Crown or third parties want to make use of Aboriginal title lands, they must seek the consent of the Aboriginal title interest claimant,[5] irrespective of whether the title claim has been recognized by the courts.[6] If the Aboriginal title claimant refuses consent, parties must have a “compelling and substantial” objective to infringe upon the lands, which must conform to the spirit of reconciliation with Aboriginal peoples in Canada and align with the State’s fiduciary duty.[7]

Canada breaches its fiduciary duty if an infringement would deprive future generations of the ability to benefit from the land and if the gravity of the infringement is not proportional to the benefits enjoyed by the Aboriginal titleholders and the public at large.[8] Courts must consider both Aboriginal and non-Aboriginal worldviews and find the party’s objectives to be consistent with the Crown’s fiduciary duty to the Nation claiming title.

A win for the realization of Aboriginal title rights in Canada

The doctrine of terra nullius, which asserts that no individual or group held title to land before European sovereignty, is not a recognized way of justifying territorial acquisition in human rights law. The Economic and Social Council of the United Nations has called for the doctrine to be “eradicated from modern legal systems;”[9] moreover, the United Nations Permanent Forum has called for a special mechanism to investigate historical land claims.

The Tsilhqot’in decision supports the call to extinguish land claims made by asserting terra nullius. Chief Justice McLachlin, writing for the unanimous Court, asserts that the doctrine never applied in Canada and can never be used as a legal foundation to establish title.[10]

Human rights treaties, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and other normative human rights instruments, establish an international framework for Indigenous rights law. This is a unique area of law within the human rights system that recognizes a differentiated set of rights for indigenous peoples, including the right to occupy and use traditional lands. United Nations treaty review bodies have recommended that Canada not infringe upon the realization and development of Aboriginal rights, including title, in Canada.[11] More recently, the former UN Special Rapporteur on Indigenous Peoples, James Anaya, recommended that Canada continue to improve the land claim process in a way that does not restrictively interpret Aboriginal rights.

The UNDRIP is the principal authority on Indigenous rights in the international human rights system. The Declaration promotes harmonious relations between States and Indigenous peoples and enshrines, in article 26, Indigenous peoples’ rights to their traditional lands and resources, including the rights to own, use, develop, and control such lands. Furthermore, Article 27 establishes that there should be a “fair, independent, impartial, open and transparent process…to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources” in a culturally sensitive way that embraces Indigenous custom, law, and worldviews.

The Supreme Court has moved the law forward on Aboriginal title in a way that better aligns with the aforementioned aspects of Indigenous rights law. The decision affirms the importance of Aboriginal custom and worldviews and strengthens Canada’s commitment to realizing Aboriginal title rights in domestic law and practice.

Footnotes

[1]                      Tsilhqot’in Nation v British Columbia, 2014 SCC 44, online: <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do> [Tsilhoqt’in Nation].

[2]                      Ibid. at para 25.

[3]                      Ibid at para 41.

[4]                      Ibid at para 73.

[5]                      Ibid at para 76.

[6]                     Ibid at para 78.

[7]                      Ibid at para 84.

[8]                      Ibid at paras 86-7.

[9]                      United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, UN Doc E/CN.4/1989/22, 8 Feb 1989, para 40(b) at 10.

[10]        Tsilhqot’in Nation, supra note 1 at para 69.

[11]                    UN Committee on the Elimination of Racial Discrimination, “Consideration of reports submitted by States parties under article 9 of the Convention Concluding observations of the Committee on the Elimination of Racial Discrimination,” CERD/C/CAN/CO/19-20, March 9, 2012, at para 20(b), online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CAN/CO/19-20&Lang=En; and, UN Human Rights Committee, “Consideration of reports submitted by states parties under article 40 of the Covenant Concluding observations of the Human Rights Committee Canada,” CCPR/C/CAN/CO/5, April 20, 2006, at para 8, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/CAN/CO/5&Lang=En>.

For more information see:
The Torys LLP Aboriginal Bulletin, “The Supreme Court of Canada’s Historic Aboriginal Title Case”

By |March 5th, 2015|Blog|

2014 Year in Review: Munyaneza – Canada’s International Criminal Justice System Comes of Age

By Juda Strawczynski

The Quebec Court of Appeal’s decision in Munyaneza was one of the most important cases to be appealed to the Supreme Court of Canada in 2014.  Désiré Munyaneza appealed his conviction and life sentence for seven separate counts under Canada’s Crimes Against Humanity and War Crimes Act, S.C. 2000, c.24 (“Act”).  The convictions arose out of his participation in the Rwandan genocide of 1994 and consisted of:

– two counts of genocide, one by murder and the other by causing serious bodily or mental harm;
– two counts of crimes against humanity, one by intentional killings and the other by acts of sexual violence;
– three counts of war crimes, the first by murders, the second by acts of sexual violence, and the third by pillage (QCCA at para. 7)

However, unlike the other top cases of 2014, in Munyaneza the Supreme Court denied leave to appeal. As reasons for denying leave are not provided by the Supreme Court, it only took Justices LeBel, Karakatsanis, and Gascon one sentence to provide closure for Munyaneza’s victims.

The Supreme Court of Canada’s decision to deny leave is itself a major victory for international criminal justice. It demonstrates that Canada’s approach to international justice has reached a level of maturity: jurisdictional issues that typically complicate prosecutions of crimes against humanity and war crimes no longer necessitate a full hearing at the Supreme Court. Rather, lower courts are entrusted with the hearing of prosecutions under the Act, despite their jurisdictional and factual complexity.  The Munyaneza trial, for example, took 8 months, the Court heard from 66 witnesses, and 200 exhibits were filed.

Canada’s trial courts also appear to be suited to review, interpret, and apply international criminal law.  In the Munyaneza trial decision, Justice Denis considered the Rome Statute, as well as case law from the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Court (ICC).  His decision demonstrates that Canadian courts at all levels are able to interpret,and participate in the transnational development of international criminal law, and thereby protect universal human rights.

The Supreme Court of Canada’s decision to deny leave to appeal sends the clear message that Canada has the proper authority under both national and international law to prosecute war crimes and crimes against humanity. Indeed, at the Quebec Court of Appeal, Munyaneza argued that certain charges against him could not be prosecuted in Canada because they were either not war crimes under international law at the time of the Rwandan genocide, or because this would give the Act retroactive effect contrary to the Charter of Rights and Freedoms. CLAIHR and the Canadian Centre for International Justice intervened at the Quebec Court of Appeal to respond to these arguments. The Quebec Court of Appeal ultimately rejected Munyaneza’s arguments.

The precedent-setting Munyaneza case stands for the principle that Canada will not allow the violation of human rights, wherever they have taken place, and even if Canada must use its own court system to see that justice is served.

 

 

By |February 20th, 2015|Blog|

2014 Year in Review: Canada’s Top Court Rejects Torture as Tort

By Heather Cohen

In Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, the Supreme Court of Canada held that Canada’s State Immunity Act, RSC 1985, c S-18 (SIA) acts as a complete bar to prevent Canadian courts from providing redress through civil claims for torture committed abroad.

In 2003, photojournalist Zahra (Ziba) Kazemi, a Canadian citizen born in Iran was taking pictures of protesters near a prison in Tehran when she was arrested, held in that very same prison, and tortured to death. In 2006, Kazemi’s son, Stephan Hashemi, on his own behalf and on behalf of his mother’s estate, filed a civil lawsuit in Montreal against Iran and three individual Iranian officials: Ayatollah Ali Khomeini, Iran’s Supreme Leader; Saeed Mortazavi, Tehran’s Chief Public Prosecutor alleged to have ordered Kazemi’s arrest; and Mohammad Bakhshi, the former Deputy Chief of Intelligence for Evin Prison, the site of Kazemi’s abuse.

Relying on the SIA as a complete bar to the plaintiffs’ action, the defendants brought a motion to strike. The decision of the Quebec Superior Court was released in 2011. Justice Robert Mongeon would have allowed Hashemi’s individual claims to go forward given that he had suffered injuries in Canada (an exception under the SIA), but dismissed the claims in the name of Kazemi’s estate, as the related abuses were suffered only outside of Canada.

On appeal to the Quebec Court of Appeal, that Court held that the SIA operated as complete bar to prevent any of the claims from going forward. The case was then appealed to the Supreme Court of Canada, at which point CLAIHR was granted leave to intervene. CLAIHR picked up the reasoning of Justice Mongeon at the Quebec Superior Court and argued that serious psychological trauma, when suffered in Canada, constitutes an exception to state immunity under s. 6(a) of the SIA. The Supreme Court of Canada ultimately rejected this argument and upheld the decision of the Quebec Court of Appeal.

Unlike the United States, Canada has no alien tort statute. The plaintiffs and certain interveners in Kazemi relied, in part, on international law, and particularly the prohibition of torture as a jus cogens norm to ground their cause of action. The Honourable Justice LeBel, for the majority, agreed that the prohibition of torture is jus cogens, but that there was no requirement under international law that Canada open its courts to permit its citizens to seek redress through civil claims for torture committed abroad.

Justice LeBel did suggest that Parliament could choose to offer the plaintiffs redress, noting:

Parliament has the ability to change the current state of the law on exceptions to state immunity, just as it did in the case of terrorism, and allow those in situations like Mr. Hashemi and his mother’s estate to seek redress in Canadian courts. Parliament has simply chosen not to do it yet. [Emphasis added.]

The “yet” at the end of the Supreme Court of Canada decision suggests that the Court itself would like to see Parliament make this change. Efforts are underway to lobby the federal government to adopt legislation that would enable Canadians to seek redress for torture suffered abroad. While such a law would not go as far as the alien tort statute, it would help Canadians hold states which commit human rights abuses accountable for their actions. In the meantime, supporters of international human rights will have to satisfy themselves with the Honourable Justice Abella’s dissent in the Kazemi decision:

In the face of universal acceptance of the prohibition against torture, concerns about any interference with sovereignty which may be created by acting in judgment of an individual state official who violates this prohibition necessarily shrink. The very nature of the prohibition as a peremptory norm means that all states agree that torture cannot be condoned. Torture cannot, therefore, be an official state act for the purposes of immunity ratione materiae.

By |February 12th, 2015|Blog|

2014 Year in Review: World Pride Toronto!

By Peewara Sapsuwan 

In 2014 Toronto hosted the third World Pride. Toronto was a natural choice to follow up on the World Pride events previously held in Rome and Jerusalem; Toronto’s annual Pride festival attacts more than 1.2 million visitors. The 10-day World Pride event was a celebration of diversity and acceptance attracted more than 350 groups, including 12,500 marchers and 400 delegates from all over the globe (source.) Political figures, including Ontario’s first openly gay premier Kathleen Wynne participated in the march.

Global LGBTQ rights took Toronto’s World Pride’s center stage, with the World Pride Human Rights Conference taking place along side the World Pride event. Some topics included two-spirited persons, asexuality, intersex persons and parents, LGBTQ refugees in Canada, and LGBTQ rights in Eastern Europe, Russia, and Uganda.

It is important to appreciate how far LGBTQ rights in Canada have come since the days when homosexuality was a capital crime. However, it is equally important to remember that the law has not always been accepting towards Canada’s LGBTQ’s communities. It was only in 1969 when homosexuality was decriminalized in Canada under the Criminal Law Amendment Act, 1968-69. Canada’s last person who was convicted for homosexuality (under gross indecency), George Klippert, was released only in 1971.

World Pride also reminded Canadians that although many LGBTQ rights are well protected in Canada, many gender and sexual identities around the world are still struggling to be recognized, and many individuals are still violently persecuted for who they are. For this reason, World Pride 2014 was an expression of Canada’s value and its solidarity with the LGBTQ communities around the world.

 

 

By |February 9th, 2015|Blog|

Applying International Law in Canadian Courts: A Pocket Guide for the Perplexed

By Azeezah Kanji

When and how is public international law relevant in Canadian courts, if it is ever relevant at all? The nutshell-portable answer is: it’s complicated! – but international law may be relevant in a variety of different contexts, and in a variety of different ways.

Broadly speaking, there are two ways of describing the relationship between domestic law and international law: “monist” and “dualist.” From a monist perspective, international law and domestic law are one unified system: international laws are automatically part of domestic law. Conversely, from a dualist perspective, international law and domestic law are two separate legal systems: while international laws may be valid internationally, they cannot be applied domestically unless they are first given force of law in domestic legislation.

Here’s another, more familiar (or should I say – familial), way of thinking about this. In monism, international law and domestic law are like blood relatives. They are automatically members of the same clan/system – even if international law is sometimes treated like the slightly eccentric distant cousin whose positions often fail to carry the day in family arguments. In dualism, however, domestic and international law are more like potential in-laws. Some legally transformative act must be performed before the two become one: marriage in the one case, domestic implementing legislation in the other.

Monism and dualism are not mutually exclusive. A domestic legal system may treat some sources of international law according to the monist model, and others according to the dualist one. English common law has usually taken a monist approach towards applying customary international law.[1] That is, international customs are generally considered to be part of the law of the land, and may be invoked in courts. In its 2007 decision in R v Hape, the Supreme Court of Canada confirmed that prohibitive rules of customary international law are part of domestic law, so long as they do not conflict with existing Canadian legislation.[2]

Treaties, in contrast, have traditionally been regarded through the lens of dualism.[3] As the Supreme Court of Canada held in the well-known Labour Conventions case, treaties signed by the state do not automatically become law in Canada: Canadian lawmakers must first domestically implement the treaty in question.[4]

The field is somewhat muddied, however, by the Canadian jurisprudence on application of international law. International law scholars Jutta Brunnee and Stephen Toope argue that “there appears to be a trend towards treating all of international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner – as relevant and perhaps persuasive, but not as determinative or, dare we say, obligatory.”[5] In other words, both types of international law – custom and treaty – seem to be “kind of, but not totally” applicable.

While treaties are not domestic law in and of themselves, judges may apply a “presumption of conformity” between domestic and international law. This means that legislation may be read so that it accords with Canada’s international treaty obligations (as far as the text of the law allows, and in the absence of express legislative intent to violate international law).[6] In Baker v Canada, Justice L’Heureux-Dube wrote for the majority: “International treaties and conventions are not part of Canadian law unless they have been implemented by statute . . . Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.”[7]

International law, particularly international human rights law, is also important in interpreting the Charter of Rights and Freedoms. In Slaight Communications Inc v Davidson, the Supreme Court held that the Charter should “generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”[8] Quite simply, Charter rights should be interpreted to at least meet, if not exceed, analogous international human rights standards. In Slaight, the Court also found that Canada’s international human rights commitments are relevant in interpreting section 1 of the Charter (to determine permissible limitations on Charter rights and freedoms).

On the other hand, the Supreme Court of Canada diminished the force of international law in Suresh v Canada, which concerned deportation to the possibility of torture. The prohibition of torture is the highest level of international norm possible – “jus cogens” (also known as “peremptory”) – meaning that states must never conduct, facilitate, or condone torture. The rule against torture is absolute and universal: no exceptions are permitted. However, in Suresh the Supreme Court did not regard the international law on torture as determinative or obligatory in its own right, but merely used it as a tool for interpreting Canadian law – and found that departure from the international norm might be permissible in exceptional circumstances.[9]

To sum up: while in theory customary international law is applied according to monism, and treaties according to dualism, the situation on the ground is (unsurprisingly) somewhat messier and less consistent.

Footnotes

[1] Ronald St. J. MacDonald, “International Treaty Law and the Domestic Law of Canada” (1975); Hugh M Kindred and Phillip M Saunders et al, International Law Chiefly as Interpreted and Applied in Canada (Edward Montgomery Publications Limited, 2006) at 187.
[2] R v Hape [2007] 2 SCR 292 at para 39.
[3] Canada (AG) v. Ontario (AG) [Labour Conventions].
[4] This may be accomplished in one of several different ways: through enactment of new legislation; through amendment of old legislation to bring it into line with international law; or through retention of pre-existing laws which fulfill the state’s obligations under the treaty.
[5] Jutta Brunnee and Stephen J Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” Canadian Yearbook of International Law (Volume 40) (2002) at 5.
[6] See, for example: Daniels v White [1968] SCR 517; National Corn Growers Assn v Canada (Import Tribunal) [1990] 2 SCR 1324; Ordon Estate v. Grail, [1998] 3 SCR 437; Canadian Foundation for Children, Youth and the Law v AG Can [2004] 1 SCR 76.
[7] Baker v Canada [1999] 2 SCR 817 at paras 69-70.
[8] Slaight Communications Inc. v. Davidson [1989] 1 SCR 1038. The Supreme Court’s decision in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia [2007] 2 SCR 391 similarly sets international human rights law as the “floor” of Charter protection (at para 70). However, the Court seemed to adopt a slightly different approach in Hape, released only the day before the Health Services judgement: “In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a conclusion” (at para 56). As Professor Craig Forcese points out, “under the [ . . . ] rule articulated in Hape, Charter protections would not simply benefit from a minimum content presumption, but would also be subject to any ‘ceiling’ or ‘walls’ implied by any of Canada’s international legal obligations. Similarly, any interpretive ‘floor’ previously indicated by Canada’s international human rights obligations could conceivably be lowered by reference to Canada’s international obligations of a non-human rights character.” Craig Forcese, “Supreme Court of Canada Clouds Rules Governing Role of Customary International Law in Domestic Law and Of International Law in Interpreting Canadian Charter,” 1 February 2009, online:.
[9] Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at para 60.

By |January 1st, 2015|Blog|