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Araya v Nevsun Resources Ltd: An Overview

By: Jacqueline Ting

I. Introduction

Canadian multinational corporations may have to be more diligent when it comes to suspicious dealings between their subsidiaries and foreign officials, governments, and other companies abroad. In Araya v Nevsun Resources Ltd,[1] a groundbreaking decision released October 2016, Mr. Justice Abrioux of the British Columbia Supreme Court held that victims of human rights abuses committed by corporations abroad may be able to sue for a tort based on customary international law (“CIL”). Justice Abrioux dismissed the application of Nevsun Resources (“Nevsun”), a British Columbia-based company, to strike the claims of the three Eritrean nationals. The plaintiffs allege that they were subject to forced labour and torture at the Bisha mine in Eritrea, which Nevsun partially owns. While the case is currently on appeal, in the meantime, this decision could usher in a new age of transnational civil litigation.

II. The Facts

The Eritrean plaintiffs, Gize Yebeyo Araya, Kesete Tekle Fshazion, and Mihretab Yemane Tekle, are refugees in Canada and are alleged to have been conscripted into the Eritrean National Service Program (“NSP”) which forced them to provide labour, a form of slavery, to the companies constructing the Bisha gold mine.[2] They claim that Nevsun and its Eritrean subsidiary, Bisha Mine Share Company (“BMSC”), entered into contracts with two Eritrean companies, to develop the Bisha gold mine.[3]

The plaintiffs filed suit against Nevsun in British Columbia, raising numerous causes of action. Damages are being sought under CIL for the use of forced labour, torture, slavery, cruel, inhuman or degrading treatment, and crimes against humanity.[4] This is the first time a Canadian court has had to decide whether a party to an action can receive damages for cause of action based entirely on CIL. The plaintiffs are also seeking damages for the torts of conversion, battery, unlawful confinement, conspiracy with BMSC, Segen, Mereb and the Eritrean military, and for entering into an unlawful agreement to use forced labour. They are also claiming that Nevsun is directly liable for failing to stop practices at the mine site and for condoning the conduct of the Eritrean military and affiliate companies, while alleging that it is vicariously liable for the conduct of the military, Segen, and Mereb.[6]

Nevsun applied to the Court to strike portions of the plaintiffs’ claim, denying their allegations that the Eritrean military or its subcontractors engaged in forced labour or slavery and denying that Nevsun agreed, aided, abetted, approved, or condoned any such conduct.[7] It made four applications:

  • to stay the proceedings on the grounds that Eritrea is a more appropriate forum (forum non conveniens[8]);
  • to dismiss, stay, or strike out the plaintiffs’ claims on the grounds that they disclose no reasonable cause of action because they are contrary to the “act of state doctrine”;
  • to strike the plaintiffs’ CIL-based damages because they lack a reasonable cause of action;
  • for an order preventing the plaintiffs from continuing the proceedings on a representative basis.[9]

III. Important Human Rights Issues

       A. Forum Application

In BC, the factors that a court must consider on an application for forum non conveniens are stipulated in subsection 11(2) of the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”).[10] They include:

  • The comparative convenience and expense for the parties and witnesses when litigating in the alternative court;
  • The law to be applied;
  • Enforcement; and
  • The fair and efficient working of the Canadian legal system as a whole.[11]

Accordingly, Nevsun needed to prove that Eritrea was a “clearly more appropriate forum” and that it would result in justice for the parties. After reviewing expert testimony from both parties on Eritrea’s judicial system, evaluating potential procedural barriers for the plaintiffs, and undertaking an extensive analysis of the s. 11(2) factors, Justice Abrioux found that the plaintiffs would face severe barriers to justice in Eritrea. Particularly persuasive was the evidence about the integrity of the Eritrean judicial system, leading the Court to conclude that it is not independent and does not have a constitution or functioning legislature, nor does it recognize international human rights stemming from customary international law.

While the forum application in this case can be seen as a victory, it is a small one given that Eritrea has been labelled a rogue state by the UN Human Rights Council. According to the Council’s Report,[12] the Eritrean government has committed widespread and gross human rights violations, some even constituting crimes against humanity.[13] The Report describes conditions of indefinite forced labour, noting that attempts at democracy and the rule of law have been aggressively suppressed[14]

       B. Act of State Doctrine

The act of state doctrine is a judicial rule limiting the courts’ competence with respect to a certain subject matter, in this case the lawfulness of a foreign state’s actions within its own territory.[15] The rule presents a major roadblock to recourse in international human rights disputes, including sovereign equality, reciprocity, and comity.[16] It has yet to be applied in Canada.[17]

Nevsun argued that the act of state doctrine should be applied, claiming that Canadian courts cannot evaluate the alleged involvement of Eritrean state officials and members of the military in forced labour. They argued that the matters should be left to Eritrean or international courts.[18] Justice Abrioux found that the act of state doctrine was part of Canadian common law,[19] but did not accept that the doctrine applied to the case at bar on the basis that it had yet to be applied in Canada,[20] or in any appellate level court in comparable jurisdictions such as Australia or the UK.[21]

       C. CIL Application

Nevsun’s third motion to strike was based on the grounds that a breach of CIL was not actionable and did not disclose a reasonable cause of action. Prior to this decision, a Canadian court had yet to find that a party may be entitled to damages in a civil case due to a breach of [22] CIL is unwritten law that comes from the settled practice of sovereign [23] To prove that a particular practice forms part of the CIL, a party must demonstrate a pattern of behaviour among states in conformity with the alleged rule (state practice), and a pattern of behaviour arising out of a sense of a legal obligation (opinio juris).[24]

Justice Abrioux disagreed with Nevsun that the tort allegations based in CIL were bound to fail, concluding that Nevsun had not proven that the claims disclosed no reasonable cause of action. He rejected Nevsun’s argument that customary international law norms are crimes of international law rather than torts, referring to a similar case from the Australian Federal Court which held that whether a claim is brought civilly or criminally, the common law must be developed with “emphatically expressed ideals of public policy, reflective of universal norms.”[25]

Justice Abrioux also rejected Nevsun’s argument that Parliament, through statutes such as the Crimes Against Humanity and War Crimes Act and the Justice for Victims of Terrorism Act, had intended not to recognize private law causes of action for breaches of CIL norms, finding that this legislation did not demonstrate an express derogation.[26] He disagreed with Nevsun’s claims that CIL norms are crimes at international law rather than torts, which would have meant that recourse should be in the form of sanction or punishment, rather than compensation or damages

       D. Representative Claims

Nevsun also applied for the Court to issue an order that the Plaintiffs could not proceed on a representative basis based on Rule 20-3 of the Supreme Court Civil Rules (the “Rules of Court”),[28] and that the Plaintiffs were attempting to bring a common law class action proceeding consisting entirely of non-resident class members, which the Rules of Court do not permit.[29]

The Plaintiffs argued that a representative proceeding, rather than a class action proceeding pursuant to the Class Proceedings Act (the “CPA”),[30] was the only way to achieve the goals of judicial economy, access to justice, and behavior modification with respect to the alleged wrongs.[31]

In circumstances where a province does not have a comprehensive class action legislation, if the proceeding fulfills the requirements in Western Canadian Shopping Centres Inc v Dutton (“Dutton”),[32] the case may proceed as a “common law class action”.[33]

The Dutton requirements are as follows:

  • the class is capable of clear definition;
  • there are issues of fact and law in common to all class members;
  • success for one class member means success for all and;
  • the proposed representative adequately represents the interests of the class.[34]

However, Justice Abrioux found that because British Columbia did have a comprehensive code of class action procedure, the Dutton factors did not apply.[35] Moreover, he found that the Plaintiffs were precluded from seeking relief under the CPA because of the residency requirement as per subsection 2(1) of the CPA.[36]

He further held that expanding Rule 20-3 to preclude the residency requirement non-resident plaintiffs or group members to commence a claim would not be in the role of the Courts but the Legislature.[37]

Regardless, Justice Abrioux ultimately found that the requirements for a representative proceeding on the basis of Rule 20-3 were not met in this case, since there were no principal issues of fact or law that were essentially the same with regard to all members,[38] and an individual examination of the circumstances of each plaintiff and proposed class member would be needed.[39] Justice Abrioux found that the Plaintiffs could proceed with their claims in separate actions but would likely proceed by joinder.[40]

 IV. The Importance of this Case

By permitting the plaintiffs’ claims to proceed, the Court is allowing a new cause of action to be tested, namely tort claims based on CIL. International legal scholars have been advocating for this development for years in a movement that has been coined “transnational law,” the convergence of CIL and private claims for human rights redress.[41] In the United States, much of this litigation and advocacy has focused on the creative use of the Alien Tort Statute.[42] This case may have opened the door to transnational litigation in Canada. All eyes will be on the British Columbia Court of Appeal in September 2017.

[1]             2016 BCSC 1856 [Nevsun].

[2]             Ibid at para 4.

[3]             Ibid.

[4]             Ibid at para 43.

[5]             Ibid at para 42.

[6]             Ibid at para 445.

[7]             Ibid at para 5.

[8]             Legal rule permitting a court to refuse to hear a case where there is clearly a more appropriate court available to the parties.

[9]             Nevsun, supra note 1 at para 6.

[10]            SBC 2003, c 28.

[11]            Ibid, s 11(2)(a)–(b), (e)–(f).

[12]            UN Human Rights Council, Detailed findings of the commission of inquiry on human rights in Eritrea, A/HRC/32/CRP.1, online: http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIEritrea/A_HRC_32_CRP.1_read-only.pdf.

[13]            Ibid at para 106.

[14]            Ibid at para 75.

[15]            Nevsun, supra note 1 at para 349.

[16]            Ibid at para 341.

[17]            Ibid at para 348.

[18]            Ibid.

[19]            Ibid at para 373.

[20]            Ibid at para 375.

[21]            Ibid at para 419.

[22]            Ibid at para 445.

[23]            Ibid at para 434.

[24]            Ibid.

[25]            Ibid at para 457.

[26]            Ibid at para 462.

[27]            Ibid at para 458.

[28]            BC Reg 168/2009.

[29]            Nevsun, supra note 1 at para 488.

[30]            RSBC 1996, c 50.

[31]            Nevsun, supra note 1 at para 489.

[32]            2001 SCC 46 [Dutton].

[33]            Nevsun, supra note 1 at para 490.

[34]            Dutton, supra note 30 at paras 38–41.

[35]            Nevsun, supra note 1 at para 493.

[36]            Ibid at para 510.

[37]            Ibid at para 518.

[38]            Ibid at para 524.

[39]            Ibid at para 528.

[40]            Ibid at para 571.

[41]            Ibid at para 2.

[42]            28 USC § 1350. The U.S. Alien Tort Statute is a federal law enacted in 1789 that gives U.S. courts jurisdiction to hear lawsuits commenced by non-U.S. citizens for torts committed in violation of the “law of nations”, or international law. More recently, U.S. courts have interpreted the statute to allow foreign citizens to seek remedies in U.S. courts for human rights violations committed outside the U.S.

By |April 6th, 2017|Blog|

Regulating Business and Human Rights Across Borders

By Jinny Kim

With the spread of globalization and the rise of multinational business, the adverse impact of corporate actors on human rights has been the subject of increasing attention. For Canadians, the deaths of over 1,100 Bangladeshi workers making Joe Fresh garments in a horrific factory collapse in 2013 brought these concerns front and centre.[1] In Ontario, a case concerning the murder and rape of Mayan villagers in Guatemala by security forces allegedly under the control of Canadian parent company HudBay Minerals Inc. has been ongoing since 2010.[2] As more corporations expand their operations internationally, there is a growing need to supervise their actions, and actions which may be attributed to them, so as to prevent human rights abuses and enable victims to seek redress.

In 2011, the United Nations Human Rights Council endorsed the UN Guiding Principles on Business and Human Rights (UNGPs).[3] The UNGPs set out the “Protect, Respect and Remedy” framework, which consists of the state duty to protect human rights, the corporate responsibility to respect human rights, and the right to a remedy for victims of human rights abuses.[4]

The UNGPs have received significant support from the private sector. [5] According to a 2014 survey of senior corporate management from around the world, a “large majority of executives now believe that business is an important player in respecting human rights, and that what their companies do – or fail to do – affects those rights.”[6] Over 80 percent of the respondents saw human rights as a matter for both businesses and government, while 71 percent said their companies’ responsibilities went beyond simply complying with local laws.[7]

While some regard the UNGPs as having created a positive change in corporate actors’ approach to human rights, others remain concerned about their non-binding nature.[8] In response to this concern, the governments of Ecuador and South Africa drafted a UN Human Rights Council resolution calling for a legally binding international instrument on transnational corporations and human rights.[9] In June 2014, this resolution was adopted by the UN Human Rights Council.[10] It creates an open-ended intergovernmental working group (IWG) with the mandate to negotiate a binding treaty on transnational corporations and other business enterprises that operate globally.[11] Thus far, there have been two negotiation sessions.

The most recent session was held in October 2016. Member states, intergovernmental organizations, NGOs in consultative status with the UN Economic and Social Council, and several other groups engaged in comprehensive discussions on the potential treaty. Many NGOs agreed “that any binding instrument must clearly establish the obligations of transnational corporations to comply with environmental, health and labour standards and international humanitarian law.”[12] Also discussed was the need to bolster the remedy component of the UNGPs to include “the right of individuals and affected communities to access to justice and include provisions for the accountability of parent companies, protection of human rights defenders and the right to self-determination.”[13] The session’s keynote message highlighted the need for a binding treaty on the grounds that transnational corporations can often be more powerful than governments. A treaty with the power to hold corporate actors accountable could help to “strengthen the capacity of [governments] to ensure remediation.”[14]

The first two working group sessions were “dedicated to conducting constructive deliberations on the content, scope, nature and form” of the potential treaty.[15] The Panel discussions from the latest session indicate that some of its main themes were: 1. the scope of the state’s duty to protect human rights, including extraterritorial obligations; 2. the types of human rights violations that will trigger corporate liability; 3. which transnational corporations and business enterprises will be overseen by the Treaty giving consideration to the complex corporate structures of today; and 4. the interactions between domestic and international laws in providing victims with appropriate remedies, among others.[16] It is hoped that in the result, the Treaty will lead to effective oversight of Canadian transnational firms and their subsidiaries, as well as ensuring that victims of business-related human rights abuses have access to suitable remedies.

 

[1] Matthew McClearn,“Global Report: The Uncomfortable Truth about Bangladesh; Loblaw had Plenty of Warning”, Canadian Business, (6 June 2013), online: <http://www.canadianbusiness.com/global-report/global-report-loblaw-and-the-uncomfortable-truth-about-bangladesh/>.

[2] Marina Jimenez, “Mayan Families’ Quest for Justice against Canadian Mining Company HudBay”, The Star (20 June 2016), online: <https://www.thestar.com/news/world/2016/06/20/the-mayans-vs-the-mine.html>.

[3] Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, HRC Res 17/4, UNHRCOR, 2011, UN Doc A/HRC/17/31.

[4] Ibid.

[5] Paul Kielstra, The Road from Principles to Practice: Today’s Challenges for Business in Respecting Human Rights (The Economist Intelligence Unit 2015).

[6] Ibid at 4.

[7] Ibid.

[8] Republic of Ecuador, Statement on Behalf of a Group of Countries at the 24th Session of the Human Rights Council, UNHRCOR, 24th Sess, (2013).

[9] Ibid.

[10] Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, HRC Res 26/9, UNHRCOR, 26th Sess, UN Doc A/HRC/RES/26/9, 2014.

[11] Ibid at 2.

[12] Report on the Second Session of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, UNHRCOR, 34th Sess, UN Doc A/HRC/34/47 (2017), at 6.

[13] Ibid.

[14] Ibid at 4.

[15] Ibid at 3.

[16] Ibid at 9-22.

By |March 21st, 2017|Blog|

The Canada-U.S. Safe Third Country Agreement: Canada During a Refugee Crisis

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Hundreds of protesters shut down the U.S. Embassy in Toronto on Jan. 30, 2017.

By Jeremy Greenberg

Photography by Radu Caracaleanu

While global outcry over Donald Trump’s refugee ban continues unabated, pressure has been mounting on U.S. allies to take action. For Canada, that has meant the requisite calls to take in more refugees, as well as one proposal that has recently been gaining traction: suspension of the 2004 Canada-US Safe Third Country Agreement[1].

What Is the Safe Third Country Agreement ?

Under the Agreement, refugee claimants arriving in the US or Canada are required to register in the first country they arrive in. For example, an individual who landed at JFK Airport in New York would not be permitted to file for refugee status at the Canadian border.

Much like the European Union’s Dublin Regulation[2], the Agreement grew out of a desire to prevent individuals from making refugee claims in multiple countries. The thinking went, if the U.S. and Canada are equally secure, there should be no reason for refugees to traverse one country to settle in the other. That being said, data suggests that the vast majority of these cases now involve claimants coming north. Thus, according to critics, the Agreement is really about preventing people from leaving the United States to make a refugee claim in Canada[3].

What Critics Are Saying

By issuing such a wide-ranging ban on refugees, and indeed whole classes of migrants, critics say that the United States can no longer reasonably be considered a “Safe” country. They argue that the blanket ban contravenes the 1951 UN Convention Relating to the Status of Refugees, as well as the 1984 UN Convention on Torture (by sending people back to places where they are at risk of torture).

Were Canada to rescind or suspend the Safe Third Country Agreement, the argument goes, it would enable those suffering under Trump’s ban to find safe haven north of the border. And as a question of international law, critics believe Canada may be failing its own obligations by refusing to hear the cases of those left in refugee limbo.

The growing chorus of critics ranges from leading civil society actors such as Amnesty International[4] and the Canadian Council for Refugees[5], to legal groups including the Canadian Civil Liberties Association, the Canadian Bar Association, the Canadian Association of Refugee Lawyers[6] and a national coalition of legal scholars.[7]. Critical editorials have appeared in the Toronto Star[8] and National Post,[9], among other major news sources.

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What Canada Is Doing

A day after Trump’s announcement, Prime Minister Justin Trudeau tweeted to the effect that Canada remained open for “those fleeing persecution, terror & war”.[10] Advocates took this as a promising sign, but the government later clarified that no refugee increase was planned, and that the Safe Third Country Agreement would not be reviewed.[11]

From a political perspective, that government’s hesitancy to touch the Agreement makes a certain amount of sense. Given the new president’s penchant for retributivist foreign policy, any action could lead to a serious diplomatic falling-out. Moreover, there remains a whole host of issues to be ironed out with the Trump administration that could be at risk if Canada suddenly stripped the US of its “Safe” status – everything from NAFTA renegotiations to the fate of NATO.

What Comes Next

The most immediate effect of the ban is to put a hold on thousands of pending, and in some cases already approved, refugee claims.[12] The Washington Post, for example, recently profiled a number of refugee children who had been on their way to the US for urgent medical treatment, but now find their way blocked.[13] Due to the Agreement, they are unlikely to be considered for emergency relief by Canada.

Meanwhile, at least 10 refugee claimants were recently reported to have crossed into Canada at the Minnesota-Manitoba border[14]. That group includes at least one family who may prove a crucial test case: not only did they arrive in the United States first, but they have a pending refugee claim there. Under strict application of the Safe Third Country rule, their days in Canada may be numbered.

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There are also rumblings of a Constitutional challenge, brought forward by a coalition including Amnesty International and the Canadian Council for Refugees, among others. According to Lorne Waldman, a leading immigration lawyer who worked on a previous challenge to the Agreement, such a case is “extremely likely in the near future”.[15]

Indeed, one interesting aspect of this crisis is that it has shone a light on a long-burning controversy, one that culminated in a 2007 Federal Court decision in which the Agreement was deemed unconstitutional.[16] Although that decision was later overturned, the judge at the time ruled that the US was no longer a “safe” country for refugees, and that the Agreement contravened refugees’ Charter rights to life, liberty and security of the person (section 7) and to non-discrimination (section 15).[17]

That was a decade and two presidents ago, and Trump’s order has changed things. With global condemnation mounting, it all sets up a potentially explosive showdown here in Canada, with activists pressuring politicians to legislate a suspension, and the courts once again considering whether the Agreement is legal at all.

A National Day of Action is scheduled for Saturday, February 4.

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[1] http://www.cic.gc.ca/english/department/laws-policy/menu-safethird.asp

[2] http://www.independent.co.uk/news/world/europe/refugee-crisis-eu-first-country-rule-change-puts-pressure-on-uk-to-take-more-asylum-seekers-a6822096.html

[3] http://ccrweb.ca/sites/ccrweb.ca/files/static-files/Lesssafe.pdf

[4] https://www.amnesty.ca/news/amnesty-international-canada-must-strip-usa-%E2%80%9Csafe-third-country%E2%80%9D-designation-refugee-claimants

[5] http://ccrweb.ca/en/safe-third-country

[6] http://ccrweb.ca/en/safe-third-country

[7] https://www.osgoode.yorku.ca/wp-content/uploads/2017/01/Lettre-Letter.pdf

[8] https://www.thestar.com/opinion/commentary/2017/01/31/trudeau-should-repeal-refugee-agreement-with-us.html

[9] http://news.nationalpost.com/full-comment/terry-glavin-the-very-least-trudeau-could-do-is-get-out-of-the-way-but-he-wont

[10] https://twitter.com/JustinTrudeau/status/825438460265762816

[11] http://www.cbc.ca/news/politics/ndp-kwan-trump-travel-ban-1.3959617

[12] http://www.unhcr.org/news/press/2017/1/588f78ee4/unhcr-alarmed-impact-refugee-program-suspension.html

[13] https://www.washingtonpost.com/world/africa/trumps-refugee-ban-is-a-matter-of-life-and-death-for-some-like-a-1-year-old-with-cancer/2017/01/30/4c8e4aae-e711-11e6-903d-9b11ed7d8d2a_story.html?utm_term=.5922a3a052c3&tid=a_inl

[14] http://www.cbc.ca/news/canada/manitoba/refugee-border-crossing-manitoba-1.3959558

[15] http://www.theglobeandmail.com/news/politics/advocates-lawyers-mull-court-challenge-to-canadas-refugee-pact-with-us/article33872082/

[16] http://www.cbc.ca/news/canada/safe-third-country-pact-puts-refugees-at-risk-say-critics-1.328590

[17] http://ccrweb.ca/en/safe-third-country

By |February 3rd, 2017|Blog|

Are We Getting Too Cozy With China?

By Michael Christopher Ly

On 13 September 2016, the Federal government of Canada announced that it has commenced high-level dialogue on national security and the rule of law with China. The ongoing discussions would be a mechanism for consultations concerning judicial and law-enforcement cooperation, with the objective of addressing counter-terrorism, cyber security and combatting cybercrime, combatting transnational organized crime, law enforcement issues, consular issues, judicial cooperation and exchanges on rule of law. [1]

The dialogue however is not without controversy. China has an unjust legal system that has issued death sentences after unfair trials.[2] The Toronto Star reports that Amnesty International and Human Rights Watch are questioning the dialogue’s near-term objectives, specifically Canada’s pursuit of an Extradition Treaty and a Transfer of Offenders Treaty with China. [3]

Canada has a framework of laws and policies to prevent torture and the elimination of cruel, inhuman and degrading treatment or punishment. Notable legal and operational measures include the Canadian Charter of Rights and Freedoms, the Criminal Code, the Immigration and Refugee Protection Act, the Extradition Act, and the Corrections and Conditional Release Act (CCRA).[4] The Minister of Foreign Affairs has also stated that Canada would begin a process to join the Optional Protocol to the Convention Against Torture (OPCAT).[5] The OPCAT provides for the establishment of “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”.[6]

Although its appears that Canada has been making developments for the protection and promotion of human rights, an Extradition Treaty and a Transfer of Offenders Treaty with China may be a step in the wrong direction. There are significant differences in the ways in which the two countries treat human rights advocates, and the stark contrasts between China’s Criminal Law and Criminal Procedure Law and Canada’s Criminal Code may be a telling sign of the trouble to come if Canada gets too cozy with the world’s top executioner.[7]

In the first of a three-part series, we will begin by analyzing Canada and China’s commitment to the United Nations Convention against Torture (CAT), with a particular focus on China’s criminal law system. Subsequent articles will focus on the differences between the legal systems of the two countries through a criminal law lens.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The CAT is an international human rights treaty that aims to prevent torture and other cruel, inhuman, or degrading treatment or punishment. The United Nations General Assembly adopted the CAT on 10 December 1984 and it came into force on June 26, 1987.[8]

Article 1.1 of the CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession”. [9] Article 2 of the CAT requires its parties to take measures to prevent torture under their jurisdiction, and Article 3 forbids states to transport people to any country where there is reason to believe they will be tortured.[10]

Amongst the 83 CAT signatories,[11] Canada signed the CAT on August 23, 1985, [12] and ratified it on June 24, 1987, while China signed the CAT on December 12, 1986, and ratified it on December 8, 1987.[13] Despite this, there are many concerns that torture and other cruel punishment continue to be prevalent in situations where authorities deprive individuals of their liberty in China.[14]

China: Torture and Forced Confessions

Amnesty International has raised ample evidence of problematic state action by the Chinese government in connection with the death penalty. China is statistically the world’s top executioner, but what is more concerning is the true extent of the use of the death penalty in the country. Amnesty International claims that the execution data is considered a state secret, and the official figure of 1,634 executions in 2015 excludes thousands of executions believed to have been carried out in China.[15]

There are also concerns about a number of issues with the Chinese government, including the exclusion at trial of evidence obtained through torture as well as arbitrary detention where there is a high probability of torture and other ill-treatment.[16]

The Chinese government itself has acknowledged the extent of these problems and has allegedly increased attempts to address it. Nevertheless, in a country where the fundamental problem remains at the police authority level, in combination with a criminal justice system that is heavily reliant on forced confessions,[17] critics are chastising the Chinese government for having done little to change the country’s deep-rooted practice.

In the next article, we will delve into state punishment in China by analyzing its Criminal Law and Criminal Procedure Law, with a focus on the death penalty of the ‘principal punishment’ regime.[18]

 

[1] Office of the Prime Minister, “Terms of Reference: Canada-China High Level Dialogue on National Security and the Rule of Law”, September 2016, online: http://pm.gc.ca/eng/news/2016/09/13/terms-reference.

[2] Amnesty International, “Death Penalty,” (2015), online: https://www.amnesty.org/en/what-we-do/death-penalty/.

[3] Blanchfield, Mike, “Canada Looking at Extradition Talks with Chinese,” Toronto Star, 20 September 2016, online: https://www.thestar.com/news/canada/2016/09/20/canada-looking-at-extradition-talks-with-chinese.html.

[4] UN Universal Periodic Review, “National Report – Canada,” August 2016, online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fCAN%2f7&Lang=en.

[5] Canadian Civil Liberties Association, “Canada to Join Critical Anti-Torture Protocol”, 3 May 2016, online: https://ccla.org/canada-to-join-critical-anti-torture-protocol/.

[6] UN Office of the High Commissioner, “Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,” (2016), online: http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCAT.aspx.

[7] Amnesty International, “Death Penalty 2015: Facts and Figures,” April 2016, online: https://www.amnesty.org/en/latest/news/2016/04/death-penalty-2015-facts-and-figures/.

[8] UN Office of the High Commissioner, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” (2016), online: http://www.ohchr.org/en/ProfessionalInterest/pages/cat.aspx.

[9] Ibid.

[10] Ibid.

[11] United Nations Treaty Collection, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, (2016), online: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&clang=_en.

[12] Government of Canada, “Reports on United Nations Human Rights Treaties,” (2016), online: http://canada.pch.gc.ca/eng/1448633333956#a5.

[13] Human Rights in China (HRIC), “China and the CAT,” (2016), online: http://www.hrichina.org/en/china-and-cat.

[14] Amnesty International, “China: Torture and Forced Confessions Rampant Amid Systematic Trampling of Lawyers’ Rights,” November 2015, online: https://www.amnesty.org/en/latest/news/2015/11/china-torture-forced-confession/.

[15] Supra note 5.

[16] Supra note 14.

[17] Amnesty International, “No End in Sight,” November 2016, online: https://www.amnesty.org/en/documents/ASA17/2730/2015/en/.

[18] Jianfu Chen, “Criminal Law and Criminal Procedure Law in the People’s Republic of China”, (Leiden: Koninklijke Brill, 2013) at 29.

By |January 30th, 2017|Blog|

Bill C-1: Protecting Canada’s Diverse Gender Identities

By Jinny Kim

This September, a University of Toronto professor released an online lecture series that led to heated debates and protests about gender identity. In the lectures, Professor Jordan Peterson expressed frustration regarding requests to use alternative pronouns, such as “ze” and “zir,” which some use in place of “she” and “he.” He also criticized proposed legislation that prohibits gender-based discrimination.[1] Bill C-16[2] amends the Canadian Human Rights Code[3] and the Criminal Code[4] to include gender identity and expression as prohibited grounds of discrimination, thereby protecting transgender and gender non-conforming individuals through a legal framework.

The bill echoes the New York City Human Rights Law[5] in which gender identity is a protected class. The New York City Commission on Human Rights, which enforces the city’s human rights law, sets out specific guidelines as to what constitutes discrimination based on gender identity and expression. Potential violations include the intentional misuse of preferred pronouns of transgender employees by employers[6].

Criticisms of such laws are that they enforce the use of different preferred pronouns and may criminalize pronoun misuse.[7] Some critics, like Dr. Peterson, go as far as to suggest that such legislation conflicts with freedom of expression, and that refusing to use alternative pronouns could easily be construed as hate speech under the legislation.[8]

To analyze the implications of such laws, we may turn to what international human rights bodies have said on the matter. In 2011, the United Nations Human Rights Council adopted a resolution that cautioned against violence and discrimination based on gender identity.[9] The United Nations Office of the High Commissioner for Human Rights published a report setting out the legal obligations of governments “to safeguard the human rights of LGBT and intersex people” according to the “Universal Declaration of Human Rights and subsequently agreed international human rights treaties.”[10] The UN Human Rights Council has recently adopted additional resolutions and updates on this subject.

Bill C-16 and similar legislation can thus be seen as governments attempting to meet their international commitments to protect the rights of transgender people. The intent of these laws is to provide equality for all, regardless of gender identity, as well as to “[expand] the scope of… gender-based protections” to prohibit discrimination.[11] With these goals in mind, it seems highly unlikely that individuals will be charged with hate speech simply for mistaking a pronoun. Furthermore, Bill C-16 could raise awareness about gender-based discrimination, a logical and much-needed step for Canada’s ever-more gender diverse population.

[1] Jessica Murphy, “Toronto Professor Jordan Peterson takes on Gender-neutral Pronouns,” BBC News (4 November 2016)

[2] Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2016.

[3] Canadian Human Rights Act, RSC 1985, c H-6.

[4] Criminal Code, RSC 1985, c C-46.

[5] Commission on Human Rights, NYC Admin Code §8-102(23) (2006).

[6] New York City Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression, 2002 NYC Local Law No 3, NYC Admin Code § 8-102(23).

[7] Eugene Volokh, “You can be Fined for Not Calling People ‘Ze or ‘Hir,’ if that’s the Pronoun they Demand that You,” The Washington Post (17 May 2016)

[8] Supra note 1.

[9] UN Human Rights Office of the High Commissioner, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law (New York: United Nations 2012)

[10] Ibid at 10.

[11] Supra note 2.

By |January 8th, 2017|Blog|

Bill 62: Restrictions on Freedom or Proponent of Neutrality?

By Mireille Pichette

The ban on wearing articles of clothing that cover one’s face has become a pressing domestic and international issue. The media has framed these laws as disproportionately affecting women who wear burqas or niqabs, and extend them not only to the professional sphere but to the public sphere as well. Courts in France, Spain, Italy, Switzerland, Germany, Belgium, the Netherlands, and Bulgaria have adopted similar laws.[1] Quebec now sets out to follow in the footsteps of these nations. On October 18th 2016, in the 1st session of the 41st Legislature of the Parliament of Quebec, Bill 62 was introduced.[2] Bill 62 purports to be “an Act to foster adherence to state religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies”.[3] This isn’t the first time a Bill such as this has been introduced in Quebec and many have compared this Liberal bill with the controversial secularism charter introduced by the Parti-Quebecois in 2013.[4]

Bill 62 sets out to foster the State’s religious neutrality by imposing a duty of neutrality on all personnel of public bodies whilst in the office[5]. This specifically requires that personnel members of public bodies have their face uncovered, but also extends to those receiving services from such personnel, thus including not only the professional sphere of public servants but also everyday citizens seeking services.[6]

There has been significant backlash against Bill 62. On one hand human rights organisations opine that bans on full face veils violate international human rights law. For this reason[7] Amnesty International does not support general prohibitions of this sort and urges states not to adopt such legislation because it would violate rights of freedom of expression of religion of “women who choose to wear a full face veil as an expression of their religious, cultural, political or personal identity or beliefs.”[8] According to Amnesty, not only is it wrong to compel women to dress in a certain way, it is equally wrong for women to be prohibited by law from wearing religious attire.[9] On the other hand, there are those who take the view that this Bill in fact does not go far enough in that it targets face coverings but not religious symbols more widely.[10]

To fully understand the scope and effects this bill could have in Quebec, consider the similar law enacted in France. France passed a law banning any veils that cover the face in 2013.[11] While this law was upheld by the European Court of Human Rights (ECtHR)[12] it was largely condemned in the media as a ‘travesty of justice.’[13] The ECtHR found that although the ban interfered with ‘right to private life’ and ‘freedom to manifest one’s religion’ it was justified under the state’s right to ensure conditions of “living together”.[14] This issue was recently revisited in the media with regards to the ‘burkini bans’ in France.[15] Although facing international criticism, France largely upholds such a ban as aligning with its identity as a secular state. This is a key differentiator between the European adoption of these laws and the proposed bans in Quebec. Bill 62 is aimed at conserving neutrality, not secularism.[16] Neutrality in this context would treat all religions equally, whereas secularism seeks to remove religion from the public sphere upholding the state at its core.[17]

Parliament has concluded its hearings into Bill 62, raising questions as to the ambit of the Bill with regards to its disproportionate effect on the freedom of choice of women[18], and a delineation of neutrality as compared to secularity.[19]

 

[1] Margolis, Hillary. “Intolerance Unveiled in Quebec.” Human Rights Watch. Human Rights Watch, 25 Oct. 2016. Web. 23 Nov. 2016.

[2] Vallee, Stephanie. “Bill N°62 : An Act to Foster Adherence to State Religious Neutrality And, in Particular, to Provide a Framework for Religious Accommodation Requests in Certain Bodies – National Assembly of Québec.” Bill N°62. National Assembly, 2015. Web. 23 Nov. 2016.

[3] An Act to Foster Adherence to State Religious Neutrality And, in Particular, to Provide a Framework for Religious Accommodation Requests in Certain Bodies, S. 62, 41 Cong. (2016). Print.

[4] Vallee, Stephanie. “Bill N°62 : An Act to Foster Adherence to State Religious Neutrality And, in Particular, to Provide a Framework for Religious Accommodation Requests in Certain Bodies – National Assembly of Québec.” Bill N°62. National Assembly, 2015. Web. 23 Nov. 2016.

[5] An Act to Foster Adherence to State Religious Neutrality And, in Particular, to Provide a Framework for Religious Accommodation Requests in Certain Bodies, S. 62, 41 Cong. (2016). Print.

[6] An Act to Foster Adherence to State Religious Neutrality And, in Particular, to Provide a Framework for Religious Accommodation Requests in Certain Bodies, S. 62, 41 Cong. (2016). Print.

[7] At the same time, they do recognise that some clearly defined restrictions would be legitimate. See for example http://www.amnestymena.org/en/magazine/issue16/Hijab.aspx?articleID=1021

[8] Amnesty International. “Bans on Full Face Veils Would Violate International Human Rights Law.” Bans on Full Face Veils Would Violate International Human Rights Law. Amnesty International, 2010. Web. 23 Nov. 2016.

[9] International, Amnesty. “Bans on Full Face Veils Would Violate International Human Rights Law.” Bans on Full Face Veils Would Violate International Human Rights Law. Amnesty International, 2010. Web. 23 Nov. 2016.

[10] Valiante, Giuseppe. “Quebec Government Blasted on Day 1 of Hearings into Bill on Religious Neutrality.” CBCnews. CBC/Radio Canada, 18 Oct. 2016. Web. 23 Nov. 2016.

[11] Vandoorne, Saskya. “French Senate Approves Burqa Ban.” CNN. Cable News Network, 15 Sept. 2010. Web. 23 Nov. 2016.

[12] S.A.S v France. European Court of Human Rights. 1 July 2014. ECHR. N.p., 1 July 2014. Web. 23 Nov. 2016. See also Willsher, Kim. “France’s Burqa Ban Upheld by Human Rights Court.” The Guardian. Guardian News and Media, 01 July 2014. Web. 23 Nov. 2016.

[13] International, Amnesty. “First French Fines for Veiled Women a ‘travesty of Justice'” Amnesty International Canada. Amnesty International, 2011. Web. 23 Nov. 2016.

[14] S.A.S v France. European Court of Human Rights. 1 July 2014. ECHR. N.p., 1 July 2014. Web. 23 Nov. 2016.

[15] Taylor, Adam. “7 Facts about France’s Burkini Ban That Make Outsiders Very Uncomfortable.” The Independent. Independent Digital News and Media, 2016. Web. 23 Nov. 2016.

[16] Valiante, Giuseppe. “Quebec Government Blasted on Day 1 of Hearings into Bill on Religious Neutrality.” CBCnews. CBC/Radio Canada, 18 Oct. 2016. Web. 23 Nov. 2016.

[17] Delmar, Dan. “Why Quebec Values Remain Undefined after a Decade of Debate.” Montreal Gazette. Montreal Gazette, 22 Nov. 2016. Web. 23 Nov. 2016.

[18] Sunderland, Judith. “Banning Muslim Veil Denies Women a Choice, Too.” Human Rights Watch. Human Rights Watch, 25 Sept. 2012. Web. 23 Nov. 2016.

[19] Delmar, Dan. “Why Quebec Values Remain Undefined after a Decade of Debate.” Montreal Gazette. Montreal Gazette, 22 Nov. 2016. Web. 23 Nov. 2016.

 

Works Cited

An Act to Foster Adherence to State Religious Neutrality And, in Particular, to Provide a Framework for Religious Accommodation Requests in Certain Bodies, S. 62, 41 Cong. (2016). Print.

Amnesty International. “Bans on Full Face Veils Would Violate International Human Rights Law.” Bans on Full Face Veils Would Violate International Human Rights Law. Amnesty International, 2010. Web. 23 Nov. 2016.

Amnesty International. “First French Fines for Veiled Women a ‘travesty of Justice'” Amnesty International Canada. Amnesty International, 2011. Web. 23 Nov. 2016.

Delmar, Dan. “Why Quebec Values Remain Undefined after a Decade of Debate.” Montreal Gazette. Montreal Gazette, 22 Nov. 2016. Web. 23 Nov. 2016.

Margolis, Hillary. “Intolerance Unveiled in Quebec.” Human Rights Watch. Human Rights Watch, 25 Oct. 2016. Web. 23 Nov. 2016.

S.A.S v France. European Court of Human Rights. 1 July 2014. ECHR. N.p., 1 July 2014. Web. 23 Nov. 2016.

Sunderland, Judith. “Banning Muslim Veil Denies Women a Choice, Too.” Human Rights Watch. Human Rights Watch, 25 Sept. 2012. Web. 23 Nov. 2016.

Taylor, Adam. “7 Facts about France’s Burkini Ban That Make Outsiders Very Uncomfortable.” The Independent. Independent Digital News and Media, 2016. Web. 23 Nov. 2016.

Valiante, Giuseppe. “Quebec Government Blasted on Day 1 of Hearings into Bill on Religious Neutrality.” CBCnews. CBC/Radio Canada, 18 Oct. 2016. Web. 23 Nov. 2016.

Vallee, Stephanie. “Bill N°62 : An Act to Foster Adherence to State Religious Neutrality And, in Particular, to Provide a Framework for Religious Accommodation Requests in Certain Bodies – National Assembly of Québec.” Bill N°62 : An Act to Foster Adherence to State Religious Neutrality And, in Particular, to Provide a Framework for Religious Accommodation Requests in Certain Bodies – National Assembly of Québec. National Assembly, 2015. Web. 23 Nov. 2016.

Vandoorne, Saskya. “French Senate Approves Burqa Ban.” CNN. Cable News Network, 15 Sept. 2010. Web. 23 Nov. 2016.

Willsher, Kim. “France’s Burqa Ban Upheld by Human Rights Court.” The Guardian. Guardian News and Media, 01 July 2014. Web. 23 Nov. 2016.

By |December 12th, 2016|Blog|

Canadian Responses to the Syrian Refugee Crisis: Report from a CLAIHR Panel

By Jeremy Greenberg

Photos by Rikin Morzaria and Noah Aiken-Klar

Juda Strawcynzski, President of CLAIHR, speaks as Marco Oved, Mario Calla, Jacqueline Swaisland and Louis Century look on. Photo by Rikin Morzaria.

Juda Strawcynzski, President of CLAIHR, speaks as Marco Oved, Mario Calla, Jacqueline Swaisland and Louis Century look on. Photo by Rikin Morzaria.

On November 24, Canadian Lawyers for International Human Rights co-hosted a panel discussion on “Canadian Responses to the Syrian Refugee Crisis,” in partnership with the OBA Foundation. Guests were treated to an in-depth and multifaceted overview of the ways Canadians have responded to the influx of Syrian refugees in the past twelve months.

The evening’s panelists included moderator Marco Oved of the Toronto Star, Mario Calla, Executive Director of COSTI Immigrant Services, Jacqueline Swaisland, coordinator of the Refugee Sponsorship Support Program (RSSP), and Louis Century, a former UN refugee assessor and current Associate at Goldblatt Partners.

Moderator Marco Oved asks the panelists a question. Photo by Rikin Morzaria.

Moderator Marco Oved asks the panelists a question. Photo by Rikin Morzaria.

Things kicked off with a look at what it’s like for the government-sponsored refugees who arrived this year, the largest cohort of which was welcomed by COSTI here in the GTA. Mr. Calla talked about the rewards and challenges of helping to bring in and integrate such a large and diverse group of families. He highlighted the incredible support his team received, not only from the government, civil society, and faith groups, but from the enthusiastic individuals and groups who nearly overwhelmed them with offers of support. He also underscored how hard COSTI and similar organisations had been working, long before the first group of families arrived. He finished by sharing some success stories such as Sarah’s, a Syrian refugee who just started Medical School at the University of Toronto in September.

Ms. Swaisland then spoke about the RSSP, which matches lawyers with groups seeking to sponsor Syrian refugees through the government’s private sponsorship program. The application process can be complex, and without the hundreds of legal experts partnering with the RSSP, it might not be navigable for the many dedicated people committed to sponsorship. Swaisland also talked about the uniqueness of the sponsorship program, which has garnered the attention of the UN High Commissioner for Refugees and others interested in implementing similar initiatives in their countries. She concluded by discussing the challenges of “getting it right”, and her optimism about helping to smooth out the process in the coming years.

Mr. Century, a practising civil litigator and former refugee assessor, described his recent experience watching the news out of Syria, wondering how he could help, and then finding out about the private sponsorship program. It was a short leap – but a lot of work – from there to starting up a sponsorship group at his law firm, which just welcomed a Syrian family less than a month ago. Echoing Ms. Swaisland, Century talked about the challenges and frustrations of the application process – even for an office full of lawyers – and also the incredible reward of finally welcoming the family.

Perhaps the most moving story, one shared by all the panelists, involved a raucous town hall meeting earlier this year. Back in March, the Deputy Minister for Immigration met with a group of would-be sponsors in Toronto to discuss the program. The frustrated and impatient crowd surprised the Minister with, as Century put it, “Their strong desire to help out. It was like NIMYBYism (Not In My BackYard) in reverse. A room full of people demanding ‘more refugees, in our backyards, now’. We knew Canadians were generous, but it was almost funny how ‘angry’ they were about not having more refugees, sooner. It’s a far cry from what you normally hear about ‘refugee complaints’.”

The audience listens to the panelists speak. Photo by Noah Aiken-Klar.

The audience listens to the panelists speak. Photo by Noah Aiken-Klar.

There were similar positive stories from all panelists: the Syrian who got his first ever job based on merit alone, and was so grateful he immediately signed up as a volunteer coordinator; another who could not understand why people he met in Toronto “never asked about his religion;” the many successful students; and other stories of resilience and early successes. But there have been challenges as well: the achingly slow process of refugee sponsorship. The harsh realities of life in a new country, halfway around the world. The difficulty of organising a large and enthusiastic team of volunteers.

Most pointedly, there was a lot of concern about what happens in the “13th month” for refugee families. Sponsorship groups have contracted to assume the finances of their sponsored refugees for the first 12 months.  But the transition to month 13 can be difficult. Can families afford the apartment that had been formerly subsidised for them? Have they found good work? Are they financially secure? The panel noted that while month 13 can be challenging, sponsors can take proactive measures to prepare early on for this transition point.

Given the situation in Syria and other countries, too many refugees are still waiting for their chance at as Swaisland puts it, “the lottery of a lifetime” – being resettled in Canada. The good news is, based on the discussion and the enthusiasm of the event’s audience, there is definitely a desire by Canadians to continue to contribute as they can, a year after the first Syrian refugees arrived in Toronto.

By |November 30th, 2016|Blog|

First Nations Education: First Nations Control of First Nations Education Act, the UNDRIP, and New Promises

By Tony (Hao Nan) Zhou

The education of First Nations in Canada is an ongoing issue in Canadian domestic politics and may present new challenges for Canada in meeting its international obligations if the new federal government follows through on its promise to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[1]

There are currently 518 schools on First Nations reserves in Canada.[2] Eleven numbered treaties with different First Nations contain education provisions, agreements which were subsequently recognized and affirmed by s. 35 of the Constitution Act, 1982. “The strict reading of the treaties, however, binds the government only to provide ‘a school in each reserve’ (Treaties 1 and 2) or ‘to maintain schools for instruction’ (Treaty 3 and Treaty 5) or ‘to pay such salaries of teachers to instruct the children of said Indians, and also to provide such school buildings and educational equipment as may seem advisable to His Majesty’s government of Canada’ (Treaty 9)”.[3]

Historically, there has been a lack of consensus with respect to what the Crown’s treaty obligations require and the nature of any corresponding treaty rights. The “federal government’s long-standing practice…has been to deliver educational services within the context of the education provisions of the Indian Act…[which] deal largely with truancy and make no reference to substantive education issues or the quality of education to be delivered”.[4] According to Paquette and Fallon, “[n]either party to the treaties could have foreseen… the rapid increase over the last century…in levels of educational attainment necessary for an economically prosperous, socially fulfilling, and politically engaged life”.[5]

Today, the education provided to First Nations (and Canada’s Aboriginal peoples in general) continues to underperform in both quality and outcome. According to Statistics Canada, less than half of Aboriginal people aged 25 to 64 had a postsecondary education in 2011.[6] In comparison, almost 65% of non-Aboriginals did.[7] A large portion of qualifications from Aboriginal schools are also not recognized by employers.[8] This is because the Treaties do not guarantee the funding or the standards on the provision of education to First Nations. While the former dilemma is alleviated by various financial acts, such as annually passed Appropriation Acts and the Financial Administration Act,[9] regulation on staff quality and educational standard is still a vacuum. The lack of standardization with respect to the provision of Aboriginal education makes those who fund and provide the education effectively unaccountable, and leads to barriers in acquiring employment for individuals who pass through the system.

In 2014, then-Minister of Aboriginal Affairs and Northern Development, Hon. Bernard Valcourt, introduced the First Nations Control of First Nations Education Act (Bill C-33) to address the lack of regulation in Aboriginal education.[10] The Bill proposed the establishment of standards in the quality of education that Aboriginal schools would have to provide to their students, and promised increased funding to facilitate the development of a new infrastructure.[11] The Bill also attempted to clarify roles and responsibilities to introduce accountability into the new system, in an attempt to measure progress and ensure continual improvement of both quality and employability of Aboriginal education.[12]

Many individuals, however, expressed concerns regarding how the Bill might affect Aboriginal treaty rights; caps on federal funding were met with suspicion, and there was a concern that the Bill ultimately failed to grant First Nations autonomy over education.[13] In addition, First Nations leaders desiring a nation-to-nation negotiation process held the belief that leaders of the Assembly of First Nations, with whom the federal government consulted, did not possess authority over Aboriginal affairs, or have the independent political power to negotiate on their behalf.[14] The Bill was ultimately unable to gather the wide support it required, and Canada has yet to establish guaranteed funding and standards in the provision of education to First Nations.

In November of 2015, Hon. Carolyn Bennett, Minister of Indigenous and Northern Affairs, confirmed that Canada would implement the UNDRIP.[15] With respect to education, the UNDRIP asks that States recognize the following rights:

Article 14

  1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.
  2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination.
  3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.

Article 21

  1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.
  2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.[16]

The implementation of the UNDRIP, in a way, will effectively require the federal government to enact legislation that can accomplish what its implementation demands. Any future legislation should be in accordance with and ensure the rights set out in Articles 14 and 21. This will present new challenges in negotiating legislation on First Nations education, which appears to be a priority for Prime Minister Trudeau, who promised nation-to-nation negotiations, and pledged to invest $2.6 billion dollars into First Nation education.[17]

 

[1] Joanna Smith, “Canada will implement UN Declaration on Rights of Indigenous Peoples, Carolyn Bennett says”, Toronto Star (12 November 2015), online: <http://www.thestar.com/news/canada/2015/11/12/canada-will-implement-un-declaration-on-rights-of-indigenous-peoples-carolyn-bennett-says.html> [Smith].

[2] Robert Laboucane, “Canada’s Aboriginal Education crisis” The Aboriginal Multi-Media Society (AMMSA) 28:7, 2010, online: <http://www.ammsa.com/publications/windspeaker/canada’s-aboriginal-education-crisis-column>.

[3] Jerry Paquette, Gerald Fallon, First Nations Education Policy in Canada: Progress or Gridlock (Toronto: University of Toronto Press, 2010) at 182.

[4] Report of the Standing Senate Committee on Aboriginal Peoples, “Reforming First Nations Education: From Crisis to Hope” (December 2011) at 10, online: <http://www.parl.gc.ca/content/sen/committee/411/appa/rep/rep03dec11-e.pdf>.

[5] Ibid at 182-183.

[6] The educational attainment of Aboriginal peoples in Canada, Statistics Canada, online: <http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-012-x/99-012-x2011003_3-eng.cfm>.

[7] Ibid.

[8] Katrina Clarke, “Native education problems won’t be fixed through more funding, study says”, National Post (7 August 2014), online: <http://news.nationalpost.com/news/canada/native-education-problems-wont-be-fixed-with-more-funding-study-says>.

[9] Michael Mendelson, “A Second Look at the First Nations Control of the First Nations Education Act”, Caledon Institute of Social Policy (August 2014) at 3, online: <http://www.caledoninst.org/Publications/PDF/1049ENG.pdf> [Mendelson].

[10] Indigenous and Northern Affairs Canada, ARCHIVED – Bill C-33: First Nations Control of First Nations Education Act, online: <https://www.aadnc-aandc.gc.ca/eng/1358798070439/1358798420982>.

[11] Ibid.

[12] Mendelson, supra note 9 at 7.

[13] Pamela Palmater, “Chief Shawn Atleo should tear up First Nations Education Act”, Rabble (30 April 2014), online: <http://rabble.ca/blogs/bloggers/pamela-palmater/2014/04/chief-shawn-atleo-should-tear-first-nations-education-act>.

[14] Ibid.

[15] Smith, supra note 1.

[16] UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, at Arts 14 and 21, online: <http://www.refworld.org/docid/471355a82.html>.

[17] Susana Mas, “Justin Trudeau promises $2.6B for First Nations Education”, CBC News (13 August 2015), online: <http://www.cbc.ca/news/politics/canada-election-2015-liberal-justin-trudeau-first-nations-1.3189872>.

By |October 24th, 2016|Blog|

Excluded from Justice? Immigration Detainees in Canada

By Petra Molnar and Stephanie J Silverman

Petra Molnar is a JD Candidate 2016, Faculty of Law, University of Toronto, and will be an articling fellow at the Barbara Schlifer Clinic. Stephanie J Silverman is the 2015 Bora Laskin Fellow in Human Rights Research and a Social Sciences and Humanities Research Council (SSHRC) Postdoctoral Research Fellow at the University of Ottawa.

The migrants’ rights community was rocked by two recent deaths in the Toronto area at two separate immigration detention facilities. These deaths have been shrouded in secrecy and few details have emerged other than brief biographical sketches of the deceased. What we have learned is that the first man was found unconscious and not breathing in his cell in the Toronto East Detention Centre after an apparent suicide. Guards at the Maplehurst Correctional Facility in Milton found the second man six days later in his cell with no vital signs. Both men were awaiting deportation from Canada. An official total of 14 detainees have died while in the custody of Canadian immigration officials since 2000.

Our recent research[1] into the Canadian detention system has found a growing system of incarceration ensnaring more categories of non-citizens than ever before. International human rights law stipulates that immigration detention is a measure of last resort that is non-punitive, non-arbitrary, conducted with regard to due process, and must not sweep up asylum seekers or other vulnerable people. However, although immigration detainees in Canada are entitled to monthly reviews of the reasons for their detentions, there is no express outer time limit, and rights to habeas corpus are extremely limited.[2]

Canadian Immigration Detention System

As we explain in our article, there are three official immigration holding centres (IHCs) in Canada. The Government also subcontracts beds in medium-security provincial jails, such as the aforementioned Toronto East and Maplehurst. The Canada Border Services Agency (CBSA) can detain a person if they suspect that: the person poses a danger to the public, are unlikely to appear for an examination, cannot prove their identity, or are part of an irregular arrival. A member of the Immigration Division (ID) of the Immigration and Refugee Board (IRB) reviews the grounds for detention after 48 hours, then within the next 7 days, and then every subsequent period of 30 days, as per Section 57(1) and 57(2) of the Immigration and Refugee Protection Act. The CBSA claims that 74 per cent of detainees are released within 48 hours, and that 90–95 per cent of asylum applicants are released into the community.[3] However, in 2013–2014, detainees were held on average for more than 3 weeks; as of summer 2015, 38 detainees had been held for between 1 and 2 years, 16 for anywhere between 2 and 5 years, and 4 for more than 5 years. Likewise, in summer 2014, reports showed at least 145 migrants had been detained for more than 6 months.[4]

The legal and policy construction of Canadian immigration detention is a haphazard bricolage of legislation, court rulings, informal norms, and guidance manuals that are all infused with discretion and lack of oversight. This regime has been mostly reactive with little forethought to the potentially tragic effects of this system. Prolonged periods of detention inflict lifelong psychological, physical, emotional, and social damage. Detention often exacerbates mental health issues that many detainees face, such as Post Traumatic Stress Disorder (PTSD), anxiety, and suicidal ideation. It is telling that there are no official screening procedures to prevent the detentions of vulnerable people, such as those with mental health issues, pregnant women, and young children.[5] For example, according to data obtained on March 31, 2016 by the Canadian Council for Refugees, there are at least 82 children in detention that are accompanying a parent as “guests.”[6]

Access to Justice in Immigration Detention

In our recent research, we also identify a series of systematic everyday obstacles that impede access to procedural justice for immigration detainees in Canada. Such obstacles include the arbitrariness of decision-making in detention reviews; the difficulty with gathering new evidence, the standard of proof for detainees, and prohibitive release conditions that collectively diminish the efficacy of monthly reviews of detention sentences; and the overlapping barriers to retaining high-quality legal counsel that include insufficient funding, geographical distancing, and informational hurdles.

A key building block to procedural justice is access to high-quality, affordable legal counsel. Although detainees have a right to be represented in their detention reviews, the government is not obligated to provide counsel. While a recent Canadian Bar Association report[7] and a 2013 Action Committee on Access to Justice in Civil and Family Matters report both detail the difficulties facing marginalized groups of Canadians in obtaining counsel,[8] neither report addresses the plights of non-citizens, let alone those in detention. Yet, legal counsel is found to be the chief determining factor in successful detention bail hearings across national contexts. Advocates in the United States, for example, have been keen to document the deleterious consequences of appearing in immigration court without counsel.[9] The authors of the study determined that “immigrants who are represented by counsel do fare better at every stage of the court process—that is, their cases are more likely to be terminated, they are more likely to seek relief, and they are more likely to obtain the relief they seek.”[10] Similarly, in Canada, effective representation of migrants is key to protecting their rights while in detention.

The structure of detention in Canada systematically impedes access to quality legal counsel for detained migrants. These hurdles include: difficulties with gathering case-relevant evidence from detention; one-way telephone communication out from the IHCs and prisons; unjustified and discretionary transfers between detention sites; and the increasing use of video- and teleconferencing over in-person hearings. Counsel–client meetings also vary arbitrarily across detention facilities: in the Toronto IHC, a glass partition separates visitors and detainees who must rely on a patchy two-way telephone system, but at the Laval (Montreal) IHC they are allowed to mingle in the visiting room. In both provincial prisons and IHCs, access to reliable information on available legal counsel is extremely limited, and not always in a language comprehensible to the detainee. IHC detainees are particularly isolated because there is no Internet and interpreters are made available only at IRB and CBSA proceedings.

Moving Forward?

These and other issues flag ethical and legal concerns about the current state of immigration detention in Canada. There must be a broader debate about whether immigration detention can ever be just. Until that point, however, it is our responsibility to prevent further deaths and long-lasting psychological damage by improving the everyday living conditions and lowering or eliminating access to justice barriers facing detainees in Canada.

[1] Stephanie Silverman and Petra Molnar, “Everyday Injustices: Barriers to Access to Justice for Immigration Detainees in Canada,” Refugee Survey Quarterly 2016: 35 (1): 109-127, http://rsq.oxfordjournals.org/content/35/1/109.abstract

[2] See for example the recent Ontario Court of Appeal case, Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 (CanLII.) holding that immigration detainees can apply to the Superior Court of Justice for habeas corpus to challenge their incarceration.

[3] UN High Commissioner for Refugees (UNHCR), Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, April 2011, PPLA/2011/01.Rev.1, online: http://www.refworld.org/docid/4dc935fd2.html.

[4]Nicholas Keung, “Report alleges ‘political interference’ in migrant detentions,” Toronto Star, 09 June 2014, online: http://www.thestar.com/news/immigration/2014/06/09/report_alleges_political_interference_in_migrant_detentions.html.

[5] Silverman and Molnar, supra note 1.

[6] Canadian Council for Refugees, ‘Immigration Detention Statistics 2015,” March 2016, online: http://ccrweb.ca/sites/ccrweb.ca/files/immigration-detention-statistics-2015.pdf.

[7] The Canadian Bar Association, “Reaching Equal Justice Report: An Invitation to Envision and Act,” November 2013, online: http://www.cba.org/CBA/equaljustice/secure_pdf/EqualJusticeFinalReport-eng.pdf.

[8]Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil and Family Justice: A Roadmap for Change,’ October 2013, online http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.

[9] New York Immigrant Representation Study Report: Part II, “Accessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Proceedings,” 2011, online: http://cardozolawreview.com/content/denovo/NYIRS_ReportII.pdf.

[10] Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration Court,” University of Pennsylvania Law Review 2015:164(1), online: http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9502&context=penn_law_review .

By |April 4th, 2016|Blog|

International Women’s Day: Reflecting on Human Trafficking in Canada: A Distressing Reality

By Andreina Minicozzi

March 8 is International Women’s Day, first recognized in August 1910 at the International Women’s Conference in Denmark. It was proposed by German socialists, Luise Zeits and Clara Zetkin, who sought to acknowledge women workers in America and Europe.[1] The objective of this annual event was to combat violence against vulnerable women and children and to recognize women’s struggles by forming alliances among them both domestically and internationally.[2] Today, International Women’s Day not only celebrates the actions of women throughout history, but also acts as a time of reflection.

In 2016, we must reflect in particular on the impact that human trafficking has on women. Human trafficking is a growing and significant international problem, especially in Canada. Toronto is the “common destination” for human trafficking in Ontario and a “hub for human trafficking routes.”[3] According to a study released by the Alliance Against Modern Slavery, 551 cases involved Ontario as the destination or “transit point” from 2011 to 2013. Other equally alarming highlights from the report are as follows:

  • 62.9% of victims trafficked to, through, or from Ontario were Canadian citizens;
  • 90% of these individuals were female; and
  • 63% of trafficked person were between the ages of 15-24.[4]

In 2010, 71 percent of reported human trafficking cases in Canada were related to sex trafficking and 63 percent of these victims were Canadian citizens.[5] Toronto police have advised that approximately 20 percent of victims of sex trafficking are Indigenous women, suggesting that this may be connected to their high rates of disappearance and death.[6]

While countries like Sweden and Belgium have been proactively combating and prosecuting human trafficking for decades,[7] Canada’s response has been “lethargic.”[8] Human trafficking was only registered as an offence in the Criminal Code in 2005.[9] Nevertheless, Canada has been working to improve, signing onto several international treaties[10] and instituting legislative reform.[11] In addition, in 2012, the government articulated a “4-P” action plan to combat human trafficking, consisting of Prevention, Protection, Prosecution, and Partnership. This federal anti-trafficking strategy coordinated with that of the provinces.[12] However, what is still missing is protection for survivors.

In recent years, Canada’s approach to human trafficking has focused on prosecuting the perpetrators. According to the RCMP, as of January 2015, 85 convictions were secured in cases of human trafficking, resulting in 151 individuals being convicted of human trafficking-related offences.[13] What Canada needs now is an action plan aimed at assisting survivors with housing, counselling, and financial support, as well as comprehensive training for law enforcement and the public.

Human trafficking is a form of slave labour.[14] It is not only illegal, but violates human dignity. If the Canadian government is to commit to helping victims of human trafficking, it must adopt a more holistic approach to combat human trafficking. The first step is to create an action plan that not only punishes the perpetrators, but, more importantly, provides support services to survivors recovering from their fear and trauma. Premier Kathleen Wynne has acknowledged that Ontario has fallen behind in the fight against human trafficking and needs more coordination of information and support for victims.[15] In the words of Inspector Joanna Beaven-Desjardins: “This is a Toronto problem, an Ontario problem and a Canada problem. Everyone thinks it’s not happening here, but it is.”[16] The Ontario government is expected to launch a comprehensive action plan to combat human trafficking in June, 2016. Hopefully this action plan will revise legislation, fund service centers providing survivors with shelter, psychological, legal, medical and social assistance, provide educational services to law enforcement and the public, and provide greater funding for ongoing analysis and research across Canada. This International Women’s Day, let us remember those women who survive the indignities of human trafficking by advocating for their support.

[1] T Kaplan, “On the Socialist Origins of International Women’s Day” (1985) 11:1 Feminist Studies.

[2] United Nations Women Watch, History of International Women’s Day (2015), online: <http://www.un.org/womenwatch/feature/iwd/history.html>.

[3] CBC News, Toronto a ‘Hub’ for Human Trafficking: Report Says (14 June 2014), online: <http://www.cbc.ca/news/canada/toronto/toronto-a-hub-for-human-trafficking-report-says-1.2675941>.

[4] Alliance Against Modern Slavery, The Incident of Human Trafficking in Ontario (2014) at 7, online: <http://www.allianceagainstmodernslavery.org/sites/default/files/AAMS+-+Research+Report+-+2014.compressed.pdf> [Alliance Against Modern Slavery].

[5] Ibid at 9.

[6] K Blaze & T Grant, “Ontario Government to Unveil Strategy to Tackle Human Trafficking” The Globe and Mail (12 February 2016), online: <http://www.theglobeandmail.com/news/national/ontario-government-to-unveil-strategy-to-tackle-human-trafficking/article28740329/>.

[7] See Belgium and Sweden as leaders for combatting human trafficking: Center for Equal Opportunities and Opposition to Racism (CEOOR) Belgium, Trafficking and Smuggling of Human Beings: Preface & Part I: An Integral evaluation of Policy in the fight against trafficking in human beings, report 2007 (2008); A Gould, “The Criminalization of Buying Sex: The Politics of Prostitution in Sweden” (2001) 30:03 Journal of Social Policy.

[8]  B Perrin, Invisible Chains: Canada’s Underground World of Human Trafficking (Toronto: Viking Canada, 2010) at xi [Perrin, “Invisible Chains”].

[9] Perrin, “Invisible Chains”, supra note 7 at xi; Bill C-49: An Act to Amend the Criminal Code (Trafficking in Persons, online: <http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=C49&Parl=38&Ses=1>.

[10] Notably the United Nations Convention Against Transnational Organized Crime, the Protocol Against the Smuggling of Migrants by Land, Sea and Air, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (www.un.org).

[11] Such as: (a) Bill C-49: An Act to Amend the Criminal Code (Trafficking in Persons), which came into force in 2005 creating human trafficking as a crime; (b) Bill C-11: The Immigration and Refugee Protection Act (the IRPA), which came into force in 2001 defining human trafficking and smuggling as a distinct offence; (c) Bill S-223: The Victims of Human Trafficking Protection Act, which came into force in 2009 to amend the IRPA and include the victims in the definition of human trafficking (this amendment provides victims to stay in Canada for one hundred and eighty days with open access to health care services and counseling, but no other services are mentioned); and (d) Bill C-268: An Act to Amend the Criminal Code, which came into force in 2010 launching a mandatory five-year minimum sentence for those who are convicted of trafficking of persons.

[12] Public Safety Canada, National Action Plan to Combat Human Trafficking (2012), online: <https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/index-eng.aspx#toc-02>.

[13] Royal Canadian Mountain Police, Human Trafficking National Coordination Centre (2015), online: <http://www.rcmp-grc.gc.ca/ht-tp/index-eng.htm>.

[14] A Agathangelou, The Global Political Economy of Sex: Desire, Violence and Insecurity in Mediterranean Nation States (New York: Palgrave/MacMillan, 2006) at 42-43.

[15] Queen’s Park, “Ontario in ‘Drastic Need’ of Tackling Sex Trafficking, Wynne Says” The Star (14 December 2015), online: <http://www.thestar.com/news/queenspark/2015/12/14/ontario-in-drastic-need-of-tackling-sex-trafficking-wynne-says.html>.

[16] Ibid.

By |March 4th, 2016|Blog|