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Nigeria: What Role for Canada in the Conflict With Boko Haram?

CEE-Hope Chibok Campaign

Wikicommons: #BringBackOurGirls

By William Onyeaju, JD candidate, Osgoode Hall Law School

As the Western gaze has shifted away from the conflict in the Lake Chad region of Nigeria, Boko Haram’s assault on the Nigerian state has continued unabated. On 19 February 2018, 110 schoolgirls were abducted by Boko Haram in a repeat of the Chibok kidnapping which shocked the world and led to the social media campaign to secure their release, #BringBackOurGirls. Following negotiations with the Boko Haram faction which seized the schoolgirls, the Nigerian government secured the release of 101 girls, except those who allegedly died and another schoolgirl (Leah Sharibu) who defied Boko Haram by refusing to renounce her Christian faith. The rescue of over 100 girls has been met with statements of relief by the Nigerian state and the families of the rescued schoolchildren. However, this tragic incident marks another sad reminder of the human cost of Nigeria’s war with Boko Haram. A cost which is brought to bear with statements from victims of Boko Haram such as Leah Sharibu’s father, Lathan, who says, “I expect the federal government to bring her back to me the way they brought the others home.”

The crisis in North-East Nigeria requires significant international attention if we truly desire to see a betterment of the human rights situation in the region. Canada could play a significant role in improving the conditions of the people who have been horribly affected by nearly ten years of war.

 

The Boko Haram Insurgency

Beginning in 2009, ‘The Islamic State in West Africa’ or Boko Haram has terrorized Northern Nigeria and has become one of the deadliest militant groups in the world. The group began as a religious sect under the leadership of Mohammed Yusuf in the early 2000s. Yusuf preached that it was forbidden (haram) for Muslims to participate in activities associated with the Nigerian state and Westernization, including Western education.

Following clashes with Nigerian security forces, Yusuf was killed in 2009 and the surviving members of the group went into hiding only to re-emerge as a terrorist group, under the leadership of Abubakar Shekau, which aspired to destroy the Nigerian state and replace it with their version of an Islamic society. Led by Shekau, Boko Haram began a campaign of terror characterized by suicide bombings, assassinations, kidnappings and the targeting of minority groups in Northern Nigeria such as Christians.

In 2014, Boko Haram gained enough strength to start seizing control of territory in North-East Nigeria and by the middle of that year it had kidnapped more than 200 Chibok Girls, declared a caliphate and expanded its attacks to the neighbouring countries of Chad and Cameroon. Furthermore, the group had declared its allegiance to the so-called ‘Islamic State’, prompting the name change to the ‘Islamic State in West Africa’. The following year, Nigeria, Chad, Cameroon and Niger formed a coalition to recapture the territory that had been seized by Boko Haram and to defeat the group’s insurgency. The coalition was successful in recapturing territory from the militant group, starting in 2015, but at a grave cost for the civilians living in the region.

 

The Humanitarian Cost of Boko Haram’s War

The Boko Haram insurgency has led to horrific consequences for the people of the Lake Chad region in the countries of Chad, Cameroon, Niger and especially Nigeria. According to the Council on Foreign Relations’ ‘Global Conflict Tracker’, more than 20,000 people have died since 2011. Approximately 2.4 million people have been displaced in the Lake Chad region. An additional 7.2 million people have been left food insecure because of the conflict. There are over 200,000 Nigerian refugees in neighbouring countries such as Cameroon and Chad.

There have been additional consequences from the Boko Haram insurgency that has significantly harmed human rights in the Lake Chad region. Boko Haram’s attacks, especially their violent acts towards students and schools, have deprived hundreds of thousands of children from accessing the human right of education.

Concerning gender dynamics of the conflict, female survivors of Boko Haram have given detailed accounts of their sexual abuse and forced marriages to Boko Haram militants. Moreover, Boko Haram fighters have also become notorious for enslaving their kidnap victims. Dozens of women and girls have been exploited as suicide bombers for the militant group. Regarding male victims of Boko Haram, the group has reportedly kidnapped 10,000 boys during the insurgency. Many of these children are forced to become child soldiers for the group. Boko Haram recruited up to 2,000 child soldiers in 2016 according to UNICEF.

Boko Haram is not the only actor who has contributed to the human rights crisis in North-East Nigeria. The Nigerian state has been accused of harming Nigerian citizens in their pursuit of ending the insurgency and in their treatment of Boko Haram survivors. Nigerian government officials have allegedly abused Boko Haram survivors in internally displaced persons (IDP) camps and some officials have been accused of stealing food aid, creating double-victimization for the survivors of Boko Haram. Furthermore, Amnesty International has repeatedly stated that the Nigerian Army should be investigated for its abuses of suspected Boko Haram fighters, which led to the deaths of 8,000 people in detention centres. Its report, Stars on their Shoulders, Blood on their Hands: War Crimes Committed by the Nigerian Military accuses the Nigerian military of extrajudicially killing more than 1,200 Nigerian citizens. Thousands of suspected Boko Haram militants have been subjected to mass trials which, the Nigeria Ministry of Justice itself has pointed out, suffer from poor investigation techniques and an over-reliance on confessions to confirm guilt. The tragic bombing of an IDP camp in January 2017 by the Nigerian Air Force, killing over 100 people, highlights the extreme danger faced by civilians in the conflict zone.

The people of North-East Nigeria find themselves in an extremely precarious situation. On one hand, Boko Haram has sparked a humanitarian crisis which has left millions of people in a destitute state. However, the Nigerian government, which has a mandate to protect its people, is contributing to a deadly cycle of violence, harming inhabitants of a region who have already suffered greatly.

 

What Canada can do for the people of North-East Nigeria?

Canada could play an effective role in mitigating the gross harms done by Boko Haram and the Nigerian government by advocating on behalf of the people of North-East Nigeria. Already, Canadian-Nigerian bilateral relations have seen millions of dollars in development assistance flow to Nigeria. In 2015-2016, over $100 million of aid was provided to Nigeria from Canada. In 2017, over $27 million of humanitarian assistance was contributed to the Nigerian government by the Canadian government in relation to the Boko Haram insurgency. Moreover, increasingly the Canadian Armed Forces are involved in operations in West Africa aimed at combating militant groups which have links to Boko Haram. Canada’s significant involvement with Nigeria’s development and humanitarian needs (as well as West African regional security) necessitates that Canada press upon its Nigerian partners to not engage in action which worsens the conflict for Nigeria’s citizens.

There are several things that Canada could do to help Nigerian civilians in the conflict zone. First, the Canadian government could increase its international assistance funds to the millions of IDPs and food insecure individuals in the region. Moreover, it can help the Nigerian government in developing tracking tools that would ensure that funds and desperately needed items, such as food aid, are not stolen by public officials.

Additionally, the Canadian government could press upon Nigeria, and its President & Commander-in-Chief Muhammadu Buhari, to have the country’s security forces observe proper rules of engagement with enemy combatants, and to respect the rights of Nigerian citizens in the Lake Chad region. This is especially pertinent now that Canada is involved with training West African militaries. Moreover, Canada should warn against impunity for Nigerian security forces who violate the human rights of suspected militants and civilians alike, and inform Nigeria that such impunity worsens the conflict and creates popularity for Boko Haram among aggrieved Nigerians.

Finally, the Canadian government (in its efforts to help Nigeria) should recognize that Boko Haram’s actions will leave the North-East region scarred for years to come. A great deal of effort will be required of the Nigerian state and international partners to rebuild the lives of Boko Haram survivors. To aid this rebuilding process, the Canadian state must go beyond offering assistance to IDPs. In addition to that important endeavour, Canada should consider funding the rehabilitation for Boko Haram fighters (some of whom may have been forced to fight for the group) so that ex-fighters are not incentivized to re-join Boko Haram or other militant groups in West Africa. Also, suspected Boko Haram fighters who have allegedly committed crimes should have their rights to a fair trial upheld by the Nigerian state, with support from the Canadian government. Furthermore, Canada should play a role in mending relations between the multi-faith communities in the region which have been torn apart because of violent sectarianism.

The Nigerian state has been severely challenged by the Boko Haram insurgency. Africa’s most populous country, of over 190 million people, and its largest economy will struggle for years to repair the damage which has been done by Boko Haram. Additionally, the structural assistance that Canada can provide to Nigeria will be fraught with difficulties regarding implementation and the generation of beneficial outcomes. However, with the assistance of partners such as Canada, Nigeria’s recovery from Boko Haram could successfully integrate the restoration of human dignity and flourishing for all the peoples of the Lake Chad region.

WO

By |May 10th, 2018|Blog|

UNDRIP: Canada, Indigenous Rights, and the Meaning of Endorsement

by Arron Chahal, JD Candidate, University of Toronto Faculty of Law

In May 2016, the Canadian government announced that it was a full supporter of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It remains unclear the extent that Canada’s pre-existing framework of indigenous law will be impacted through implementation of the declaration.

What is UNDRIP?

UNDRIP is an international declaration that sets out “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world (Article 43 of UNDRIP).” It is a legally non-binding document but it does outline norms and principles to guide state interactions with indigenous peoples. The 46 articles include recognition of the rights of indigenous peoples to self-determination, equality, protection of their respective cultures, a collective identity, and economic and social development. One key principle embedded throughout the document is “Free, Prior, and Informed Consent.

Canada’s Changing Position

UNDRIP was adopted by the UN General Assembly on September 13, 2007. At the time Canada was one of four states in opposition to the agreement: Canada, Australia, New Zealand, and the United States. In 2010, the Canadian Government issued a statement of support of the agreement but remained a listed objector. This statement of support outlined areas of the declaration that the Canadian Government was still concerned about, which included:

“… provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties.”

In May 2016, the Canadian government became a full supporter of UNDRIP and was no longer listed as an objector. Finally, in November 2017 the Liberal government announced its support of Bill C-262: “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.” The second parliamentary reading of Bill C-262 occurred on February 7, 2018.

Impacts on Canadian Law

Implementation of UNDRIP may have consequences for Canada’s statutory regime, administrative policies, and Canadian common law. That being said, since UNDRIP is a collection of broad principles and norms, which leave much room for interpretation, it is unclear whether implementation will have a significant impact on Canada’s status quo indigenous relations.

If Bill C-262 is to receive Royal Assent it will enact four different requirements:

  • Affirm UNDRIP as a universal international human rights instrument with application in Canadian law.
  • Require the Canadian Government to, in consultation and cooperation with indigenous peoples, ensure that the laws of Canada are consistent with UNDRIP.
  • Require the Canadian Government to, in consultation and cooperation with indigenous peoples, develop and implement a national action plan to achieve the objectives of the UNDRIP.
  • Require the Minister of Indigenous Relations and Northern Affairs to provide annual reports to Parliament on the implementation of UNDRIP.

Unrelated to Bill C-262, the Canadian Government has already begun a Review of Laws and Policies Related to Indigenous Peoples. A Working Group of ministers is to review all “relevant federal laws, policies, and operational practices” to ensure that Canada “is meeting its constitutional obligations with respect to Aboriginal and treaty rights; adhering to international human rights standards, including [UNDRIP]; and supporting the implementation of the Truth and Reconciliation Commission’s Calls to Action.” It is important to note that a broad interpretation of UNDRIP could result in finding many inconsistencies between Canadian statutes/policies and the declaration, while a conservative interpretation may result in finding little to none.

UNDRIP will influence the interpretation of domestic law in Canada. As outlined by the Supreme Court in R v. Hape (para 53), “It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law.” First, in interpreting legislation, courts are to avoid a construction that would place Canada in breach of its international obligations. Second, [the] “legislature is presumed to comply with the values and principles of customary and conventional international law.” UNDRIP is a legally non-binding document but is a part of customary international law and has increased in its relevance to Canada once Canada became a full supporter of the declaration. Even before Canada adopted UNDRIP, Canadian courts already used the declaration to aid in the interpretation of domestic statutes as outlined in Nunatukavut Community Council Inc. v. Canada (Attorney General) (Nunatukavut) (para 96 and 103).

It is unclear whether UNDRIP will impact Canada’s obligations to aboriginal peoples set out under section 35 of the Constitution Act 1982. Including, whether courts will determine that Canada’s “duty to consult,” as defined by the Supreme Court in Haida Nation v. British Columbia (Minister of Forests), must be altered to better reflect the principle of free, prior, and informed consent that is embedded within UNDRIP. The Federal Court in the case of Nunatukavut, which occurred prior to Canada becoming a full supporter of UNDRIP, found that the declaration had no bearing on Canada’s constitutional obligations to aboriginal peoples. It will be important to continue to monitor the courts on this issue, especially if Bill C-262 receives Royal Assent and officially affirms that UNDRIP has application under Canadian law.

Conclusion

Implementation of UNDRIP could affect every sphere of Canadian and indigenous relations. The significance of these changes is yet to be determined as legislators, courts, and state administrators determine how the principles outlined in UNDRIP are to be integrated within Canada’s pre-existing legal regime for interacting with indigenous peoples.

AC

 

 

By |May 2nd, 2018|Blog|

Google v Equustek: Are Courts Behind the Digital Revolution?

Equustek v Google on Google

 

By Isabel Dávila, JD Candidate, Osgoode Hall Law School

On June 28, 2017, the Supreme Court of Canada (SCC) released its judgement in Google Inc. v Equustek Solutions Inc. The SCC outlined what remedies are available when there is a clash between one party’s legitimate intellectual property rights (here, Equustek) and a third party’s (Google’s) role in accessing the information that is infringing the other party’s IP rights. Ultimately, the SCC’s decision in the case may set a potentially concerning precedent regarding access to information online, by enabling domestic courts to effectively censor the internet’s content.

Overview of the Case

On April 12, 2011, Equustek, a small technology company, launched an action against Datalink, a former distributor of Equustek’s products, alleging a violation of its intellectual property rights. Equustek claimed that while acting as a distributor, Datalink began to pass a product off as its own, using confidential information and trade secrets it had acquired from Equustek to design and manufacture the competing product. After having submitted its statement of defence in 2012, Datalink then abandoned the proceedings and left the province. After Equustek communicated with Google, the internet giant agreed to voluntarily de-index 345 individual web-pages from its Canadian search engine, google.ca. However, Google refused to de-index all web domains from its international search engines. Equustek then obtained an interlocutory injunction forbidding Google from displaying any part of Datalink’s websites on any of its global search results.

The SCC’s Findings

At the SCC, Google argued that the injunction was not effective in preventing irreparable harm and that a global injunction violates international comity. Google argued that the order may clash with the laws of foreign jurisdictions, particularly as it might impinge freedom of expression. The SCC dismissed both arguments, stating that, “[t]he interlocutory injunction in this case is necessary to prevent the irreparable harm that flows from Datalink carrying on business on the internet, a business which would be commercially impossible without Google’s facilitation.” The SCC further found that Google lacked evidence for its claim that complying with such an injunction would require it to violate the laws of another jurisdiction.

Shortcomings in the SCC’s Reasoning

The majority’s reasoning appears to misunderstand a key feature of search engines, specifically, their role as functional intermediaries, rather than owners of online content. The Court failed to grasp that by compelling Google to de-index certain websites, the content does not cease to exist, nor does it become inaccessible in other ways. As Google set out in its submissions, which were also recognised in the dissent of Justices Côté and Rowe, Datalink’s websites can still be found using other search engines, such as Yahoo or Bing, or through links from other websites, bookmarks, emails, social media, printed material, word-of-mouth, or other indirect means. While Google is generally a dominant search engine, the injunction is largely an ineffective remedy because Datalink’s websites are still accessible on the internet regardless of whether Google lists them or not.

Furthermore, the SCC’s decision is worryingly overbroad. While Equustek’s intellectual property claims are valid, by dismissing Google’s arguments of the possible ramifications on freedom of information and the right to freedom of speech, the majority failed to adequately address the subtle but fundamental issue of competing rights. As explained by the Electronic Frontier Foundation, an intervenor in the case, by mandating that Google de-index entire websites, the SCC is not only restricting access to Datalink’s illegal content, but also to its legitimate content which users around the globe arguably have a right to access. Imagine that an Amazon or eBay seller engaged in certain illegal practices, and Google was mandated to de-index those entire websites from its search engine. Such de-indexing would essentially block all consumers from seeing the seller’s other completely legal content or products.

New Evidence and the Future of Internet Governance

Furthermore, new evidence is available to demonstrate that the injunction would be incompatible with the laws of another jurisdiction. In November 2017, a California federal judge granted Google’s request for a preliminary injunction against the original SCC order and stated that, “[b]y forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals […] and threatens free speech on the global internet.” It remains to be seen what Google will do with the US judgement, but it is important to understand that not all internet actors or intermediaries have access to the resources that Google does. Hopefully, future Canadian court decisions will better identify how important it is for individuals to access information online and the fundamental role of the internet in facilitating freedom of speech and expression.

ID

By |April 18th, 2018|Blog|

Canada Gets Progressive With Its Trade Agenda

Bay St. at King St., in the heart of Toronto's financial district [Wikimedia]

Bay St. at King St., in the heart of Toronto’s financial district [Wikimedia]

By Cassandra Knapman, JD Candidate, University of Western Ontario

Canada has approached its recent trade negotiations with the goal of forming treaties that both benefit Canadians and advance its progressive trade agenda (hereafter, the “Agenda”). The Agenda integrates gender equality, labour standards, environmental protections, and human rights more broadly into Canada’s trade agreements.[1] Despite its potential human rights advantages, critics say the Agenda has presented a significant hurdle to Canada’s trade negotiations. It has been partly blamed for crippling trade negotiations with China, and for stalling the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP, formerly the TPP).[2] The Agenda is also becoming a contentious issue in the North-American Free Trade Agreement (NAFTA) renegotiation.[3] Critics have suggested that if Canada wishes to successfully negotiate trade deals, it will need to either abandon or loosen the requirements set forth in the Agenda.[4]

The Agenda’s Principles Are Based in Progressive Policy Measures

China, which has been involved in discussions about a possible Free Trade Agreement (FTA) with Canada, has been vocal in its criticism. Chinese embassy spokesperson Xiaozhong Zhu has said, “China always maintains that non-trade issues should not be brought in the FTA negotiation no matter in what kind of name.” However, contrary to China’s hard-line approach, gender, labour, and environmental concerns have been shown by research and other trade agreements to be intertwined with trade.

The relationship between gender, economies, and trade is a growing area of economic research and policy.[5] For example, sixteen per cent of global income is lost due to gender inequality.[6] Researchers have also identified 943 laws worldwide which have an impact on the economic advancement of women.[7] When considering trade treaties specifically, it is important to note that women tend to be concentrated in different industries from men, and primarily own small and medium-sized businesses.[8] Trade agreements rarely provide the same treatment to all industries: they affect businesses in different ways, depending on both the nature of the business and its size.[9] Recognizing gender as part of trade requires that treaties acknowledge and address the unequal impact on those industries and businesses in which women are most frequently involved.[10]

Preventing a Race to the Bottom

Trade similarly affects labour and the environment. Treaty clauses in these areas attempt to homogenize standards between trading states. While this may improve standards in some countries, there are serious concerns about domestic downward pressure on standards and on circumvention.[11] For example, weak labour and environmental protections are perceived to lower operating costs for businesses.[12] Under trade agreements, it becomes more feasible for businesses to relocate operations to take advantage of lower operating costs in foreign states.[13] This strong possibility of operation migration, when coupled with a lack of labour and environmental treaty clauses, can lead to a “race to the bottom.” In such cases, countries find they must reduce their more stringent standards so as to decrease operating costs and keep their workforce and market globally competitive.[14]

On the other hand, trade agreements may allow states to limit importation where the goods or their manufacturing processes do not comply with domestic laws, including environmental and labour standards.[15] This prevents goods manufactured in countries with lower labour and environmental standards from being imported into states with more stringent standards.[16] To maintain domestic environmental and labour protections, states with higher standards, such as Canada, have included clauses on these standards in their trade agreements.[17]

Criticism of the Agenda

Where Canada has been successful in incorporating the Agenda in its trade agreements, the resulting clauses have been criticized for being largely symbolic in nature with no real enforcement. Yet in cases where Canada has been less successful, bringing the Agenda to the negotiation table has created an impression of virtue signalling and arrogance.[18]

Canada’s own track record on the principles set out in the Agenda is spotty. On the environmental front, Canada has faced complaints before the North American Commission on Environmental Cooperation for failing to uphold its environmental laws. Canada has also been criticized for the possible Kinder Morgan Pipeline expansion. With respect to gender, inequality continues in the workplace, affecting female Canadian employees through such issues as gendered workplace violence and lack of childcare options. There has been increased non-compliance with labour law, due to low fines, lack of resources to address complaints, and the lack of a monitoring system.

Canada’s negotiating partners have also criticized Canada for imposing its values and regulations on them.[19] Many of these potential trade partners are embracing the values of the Agenda in their own ways. China is currently projected to meet its Paris Agreement goals ahead of its deadline. Mexico and the United States are party to the International Labour Organization, which sets labour standards and promotes decent work.[20] All but two states involved in the CPTPP supported the recent Buenos Aires Declaration on Women and Trade, aiming to improve economic conditions for women.[21] Canada’s efforts to include the Agenda in trade agreements, thus requiring particular action by the treaty parties, has been perceived as interference with state sovereignty.[22]

Conclusion

The Agenda is a statement of Canadian values and a somewhat vague effort to bring more human rights protections into Canada’s trade agreements. Critics argue that it has hindered Canada’s trade negotiations, and that it fails to provide meaningful protections. Nevertheless, it has set an important precedent for including environmental, labour, and gender standards in trade treaties, and has signalled Canada’s willingness to take these concerns seriously in future negotiations. Now, as Canada continues to promote the Agenda, it should endeavour to achieve mutual trade and human rights goals without alienating its potential trade partners.

CK

References

[1] John Chipman and Willow Smith, “Trudeau’s ‘progressive’ trade agenda with China seen as arrogant, say critics”, CBC (December 8, 2017), online: http://www.cbc.ca/radio/thecurrent/the-current-for-december-08-2017-the-current-1.4437902/trudeau-s-progressive-trade-agenda-with-china-seen-as-arrogant-say-critics-1.4438225. [Chipman]

[2] Marie-Danielle Smith, “Discussions underway within Canadian government about reworking ‘progressive trade agenda’: former ambassador to China”, National Post (January 17, 2018), online: http://nationalpost.com/news/politics/discussions-underway-within-canadian-government-about-reworking-progressive-trade-agenda-former-ambassador-to-china. [Smith]

[3] Ibid.

[4] Chipman, supra note 1.

[5] Alicia Frohmann, “Gender Equality and Trade Policy” (December 2017). SECO/WTI Academic Cooperation Project Working Paper Series 2017/24. Available at SSRN: https://ssrn.com/abstract=3113197.

[6] Ibid. Citing Ferrant, Gaëlle and Alexandre Kolev (2016), The economic cost of gender-based discrimination in social Institutions, OECD Development Center, Paris. https://www.OECD.org/dev/developmentgender/SIGI_cost_final.pd.

[7] Ibid. Citing World Bank (2015) Women, Business and the Law 2016 http://wbl.worldbank.org/~/media/WBG/WBL/Documents/Reports/2016/Women-Business-and-theLaw-2016.pdf.

[8][10] Ibid.

[11] Richard H. Steinberg, “Trade-Environment Negotiations in the EU, NAFTA, and WTO: Regional Trajectories of Rule Development” The American Journal of International Law Vol. 91, No. 2 (Apr., 1997), pp. 231-267. Available at: http://www.jstor.org/stable/2954211. [Steinberg]

[12][17] Ibid.

[18][19] Chipman, supra note 1.

[20] “About the ILO”, International Labour Organization, online: http://www.ilo.org/global/about-the-ilo/lang–en/index.htm.

“Alphabetical list of ILO member countries”, International Labour Organization, online: http://www.ilo.org/public/english/standards/relm/country.htm.

[21] “Comprehensive and Progressive Agreement for Trans-Pacific Partnership” Government of Canada, online: https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/index.aspx?lang=eng.

Buenos Aires Declaration on Women and Trade outlines actions to empower women”, World Trade Organization (December 12 2017) online: https://www.wto.org/english/news_e/news17_e/mc11_12dec17_e.htm.

[22] Chipman, supra note 1.

By |April 2nd, 2018|Blog|

Dispatches: Canadian International Law Students Conference 2018

CILSC logo

 

By Isabel Dávila, JD candidate, Osgoode Hall Law School (York University)

Photos by Sarah Cormack

On March 9, CLAIHR student chapters at Osgoode Hall Law School and the University of Toronto Faculty of Law co-hosted the annual Canadian International Law Students Conference (CILSC). CILSC provides a forum for law students, academics, practitioners, and other leaders in international law to exchange ideas in an open, engaging environment. As always, the event was a major success, generating fruitful discussion and insights on international human rights law. Here, we provide an overview of the main events, with a special acknowledgment and warm CLAIHR congratulations to:

Brenda Chang, Calum Agnew, Yinka Oyelowo, Christie McLeod, and everyone else who contributed to putting on such a great event!

Cynthia Khoo, founder and principal at Tekhnos Law

Cynthia Khoo, founder and principal at Tekhnos Law

Things kicked off with a panel on International Cyber Law featuring Cynthia Khoo, lawyer founder of Tekhnos Law, and Adam Kardash, Partner on Privacy and Data Management at Osler. The panelists talked about the rapidly changing nature of technology and the law, and the challenges of keeping apace with seemingly daily developments in the field. There is a fundamental ethical question here: Khoo and Kardash agreed that you cannot be a trusted adviser to your clients unless you truly are the most up-to-date in your area of law.

Mr. Kardash mentioned how when he first started working in cyber law, there was essentially no one practicing in this specific field. Today, working at Osler, he has a team of ten people who work on it exclusively. Ms Khoo in turn described her “unorthodox” experience in the legal world, having been involved in NGOs, regulation committees and now in her own legal practice. She highlighted how, in this line of work, a significant proportion of her time is devoted to policy and factual research, rather than traditional legal research.

The panelists then delved into ethics questions pertaining to internet companies – the panel coincidentally occurred just days before the Facebook/Cambridge Analytica story broke – and to what degree corporate ethical codes should be held accountable to government entities. They both worry that the internet’s dramatic changes are happening faster than policy is being developed. Mr. Kardash argued that the biggest challenge is the incalculable amount of data that exists today, while Ms Khoo focused on the question of transparency. She argues for a set of rights specific to the digital ecosystem, such as the right to an explanation when there is a decision that affects you in a major way. This is increasingly important as more decisions are made through automated process; as Ms Khoo asks, “should there be a right to human intervention in automated decision-making processes?”

Shin Imai, Justince and Corporate Accountability Project (York University)

Shin Imai, Justice and Corporate Accountability Project (York University)

The day’s keynote presentation on Treaties, Mining and International Law was presented by Professor Shin Imai of the Osgoode Hall Law School. Imai, an expert on human rights law, Aboriginal law, and clinical legal education, presented several cases of human rights violations by Canadian extractives companies in Latin America. Among other cases, Imai discussed the widely-disseminated allegations of sexual violence, environmental abuses, and civilian killings at Barrick Gold’s Porgera mine in Papua New Guinea.

For Imai, one of the major challenges in this field of law is how much it intersects with other domains. In order to do his job well, he needs to be versed in human rights law, public international law, corporate law, securities law, tax law, and more. His presentation continued with practical tips and advice for law students on how to get involved in these issues and in international legal advocacy in general. Imai concluded by discussing the Canadian Ombudsperson for Responsible Enterprise (CORE) (readers can find CLAIHR’s overview of CORE here), a new independent officer with the power of investigating human rights abuses linked to Canadian corporations operating abroad. Imai highlighted the importance of CORE’s ability to not only investigate corporate abuses abroad, but potentially recommend measures be taken against companies.

The third and final panel’s topic was Gender-Related Violence in Conflict. The speakers were Vasanthi Venkatesh (University of Windsor), an expert on marital rape laws, public international law, and refugee law; Paula Tenaglia, Director of Operations for Action against Hunger, and Jasteena Dhillon (Humber College/University of Windsor), an experienced NATO and UN advisor. The panelists began by reflecting on the progress and challenges that exist today, emphasizing that March 8th – International Women’s Day – cannot be the only day of the year to emphasize women’s rights or gender-based violence in conflict.

Professor Dhillon highlighted the way in which gender is not prioritized during conflict situations. While this may sometimes be justifiable in the most extreme and urgent circumstances, it is still a major and dangerous oversight. Too many services and structures are ill-designed to handle serious gender-based concerns in conflict. Next, Professor Venkatesh highlighted the intersection between international law and domestic laws or customs. This can often represent a problem for a gender-based approach, with practitioners needing to learn how to leverage laws to find common ground. Inevitably, the panel turned to the Oxfam scandal – in which aid workers stand accused of sexual misconduct while on duty – which Ms Tenaglia described as a long-overdue wake-up call for the sector. She is optimistic that change is coming, given the pressures now being brought to bear on Oxfam and other organizations. Many actors in the not-for-profit world are going to have to revise their policies on sexual misconduct, design altogether new ones, or implement ideas that have been sitting on paper for far too long.

Gender-Based Violence panel; L-R: Vasanthi Venkatesh, Paula Tenaglia, Jasteena Dhillon discuss

Gender-Based Violence panel; L-R: Vasanthi Venkatesh, Paula Tenaglia, Jasteena Dhillon

International law today is facing a series of challenges in several respects. For the packed audience at the 2018 CILSC, key among those included the development of online technologies, accountability for corporate violations of human rights, and the behaviour of not-for-profits in conflict situations. Based on the day’s discussions, there are a number of highly prepared and enthusiastic lawyers – and lawyers-to-be! – ready to take on these challenges.

See you next Spring for CILSC 2019!

ID

By |March 23rd, 2018|Blog|

CORE Mandate: Canada’s Responsible Enterprise Ombudsperson

Pictured: Khaleda, a survivor of the Rana Plaza collapse, in her new job as dressmaker

Pictured: Khaleda, a survivor of the Rana Plaza collapse, in her new job as dressmaker. [Wikicommons]

By Madeline Torrie, JD candidate, University of Toronto Faculty of Law

On April 24, 2013, Rana Plaza, an eight-storey garment factory in Bangladesh, collapsed, killing an astonishing 1,138 people. Aid workers searching through the wreckage found labels for Canadian brand names, including Joe Fresh apparel linked to the Canadian company Loblaw’s. Five years on, the collapse ranks as the deadliest garment factory accident ever, and one of the deadliest industrial accidents of the 21st century.

Since Rana Plaza, companies have scrambled to improve the transparency of supply chains with mixed results. For example, Canadian Tire still refuses to publish information on its supply chain. While there has been intense public pressure for greater transparency from Canadian companies, activist groups such as Amnesty International have demanded a government response.

The federal government recently announced the creation of the Canadian Ombudsperson for Responsible Enterprise, or CORE, to replace the Office of the Extractive Sector Corporate Social Responsibility, on January 17th, 2018. The latest incarnation of the corporate responsibility watchdog will have the authority to investigate Canadian companies abroad, and the power to recommend federal sanctions, such as withdrawal of consular services and services from Export Development Canada. The mandate of CORE will focus on the mining, oil, and gas, and garment sectors, and later expand to other industries. Furthermore, its advisory body will include members from civil society and industry backgrounds.

Among those who welcomed the announcement were Oxfam, Amnesty International, mining company Barrick Gold (itself subject to repeated accusations of human rights violations), and the Federal New Democrats. However, others have raised a range of criticisms. Writing in the Toronto Star, Jenifer Wells wonders whether CORE will be much better than its poorly funded and ineffectual predecessor, and expresses concern about the pace of choosing an ombudsperson. In the Financial Post, Neil Hindra expressed scepticism about CORE’s power to serve as both investigator and judge, and claims the only benefit of the new ombudsperson will go to the legal community who will profit from “frivolous lawsuits.”

Globally, other countries are experimenting with similar solutions to supply chain transparency, but Canada is one of the first countries in the world to propose such strong measures, including the power to investigate corporate conduct abroad and publish its findings. In 2013, as part of the Modern Slavery Act, Britain appointed an anti-slavery commissioner. Businesses with a turnover of more than £36 million are required to comply with the transparency requirements in the Modern Slavery Act, by publishing a slavery and trafficking statement prominently on their websites which sets out the steps the company has taken to ensure there is no slavery or trafficking in its supply chain. The commissioner does not have the same enforcement and investigative power as the proposed mandate for CORE.

Corporate Responsibility and Canadian Law

This announcement comes as the Supreme Court of Canada considers hearing Araya v Nevsun (readers can find CLAIHR’s overview of the case here). In Nevsun, two Eritrean refugees have alleged they were subject to forced labour at a mine indirectly owned by Vancouver-based Nevsun Resources. The British Columbia Court of Appeal considered that “international law is in flux” and held that Canadian corporations could be liable in tort damages for breaches of jus cogens norms committed abroad.[1] This marks growing development in the law to hold corporations liable for infringements of human rights overseas. Some legal experts believe that the Ombudsperson is a better way to seek resolutions than lawsuits against Canadian Companies by the disadvantaged few who are affected.

Increasingly, companies have started self-reporting their supply chains. Pressure from advocacy groups, such as USW Canada’s No More Operating in the Dark and the Follow the Thread coalition, have worked to pressure Canadian Companies which are not being transparent with their supply chains. However, critics are skeptical that self-reporting can ever be enough.

Internationally, the situation is not much better, with only 7% of publicly listed companies reviewed by The Guardian newspaper disclosing labour problems in their supply chains. Canada currently has no legislation requiring companies to report their supply chains, and advocates have encouraged them to adopt transparency measures, like the United Kingdom’s Modern Slavery Act and the California Transparency in Supply Chain Act.

At the time of writing, the government has not released CORE’s full mandate. Time will tell whether its introduction will usher in meaningful change to enforce corporate responsibility for Canadian companies abroad.

MT

 

References

[1] Araya v. Nevsun Resources Ltd., 2017 BCCA 401, Newberry J, at para 197.

By |March 14th, 2018|Blog|

Forum Non Conveniens and Judicial Corruption: Key Developments at BCCA

Legal Gavel (27571702173)

By Arron Chahal, JD candidate, University of Toronto Faculty of Law

A pair of 2017 decisions by Canadian courts have made it harder for Canadian companies to avoid liability for human rights violations allegedly committed by their subsidiaries in foreign jurisdictions.

When actions are brought against corporations on this basis, the corporation will often argue that the case should be heard in the jurisdiction in which the alleged human rights violation occurred. Two recent decisions by the British Columbia Court of Appeal (BCCA) suggest that judicial corruption in the foreign jurisdiction will play a significant role in determining how successful this argument will be.

The doctrine of forum non conveniens “is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction”, where another forum is better suited to hear the case.[1] International corporations have used forum non conveniens to avoid having complaints against them heard in Canadian courts. This approach benefits corporations where the judicial system of the relevant foreign jurisdiction is not independent, particularly where the state’s interests align with those of the corporation. Therefore, corporate defendants subject to allegations of international harm may seek to stay a claim on the grounds of forum non conveniens.

The current test to stay an action on the basis of forum non conveniens comes from the Supreme Court of Canada in Van Breda v. Village Resorts Ltd and its companion decision Black v. Breeden. This test provides that the defendant has the burden to show that another jurisdiction must be “clearly more appropriate,”[2] and in weighing the evidence, the court must consider “all relevant concerns and factors.”[3]

Before, the 2017 decisions of the BCCA in Garcia v. Tahoe Resources Inc. (“Tahoe”) and Araya v. Nevsun Resources Ltd. (“Nevsun”) “there [was] no binding authority” on how judicial corruption was to be incorporated into a forum non conveniens analysis.[4] In those cases, the BCCA rejected applications to stay the actions on the basis of forum non conveniens. In doing so, the Court explained how judicial corruption factors into the forum non conveniens analysis, concluding that judicial corruption in Guatemala and Eritrea was significant enough as to justify refusing to stay the proceedings on the grounds of forum non conveniens.

Background: Tahoe and Nevsun

In Tahoe, seven Guatemalan men are suing the Canadian mining company for injuries they allegedly suffered during a violent suppression of a protest at a mine in Guatemala that is wholly owned by one of Tahoe’s subsidiaries.[5] The BCCA overturned the lower court’s decision granting Tahoe’s application to stay the action on the basis of forum non conveniens.

In Nevsun, the plaintiffs claim that they were subject to forced labour at the Bisha Gold Mine in Eritrea, which Nevsun Resources partially owns.[6] A detailed overview of the facts has been provided in a previous blog post. The BCCA upheld the British Columbia Supreme Court’s ruling, rejecting an application to stay the action on the basis of forum non conveniens.

BCCA Accepts General Evidence of Judicial Corruption

In each case, the plaintiffs introduced general evidence of judicial corruption in the host countries – Guatemala for Tahoe and Eritrea for Nevsun – that was accepted by the BCCA, demonstrating a new willingness to admit less tailored proof of judicial corruption abroad. In Tahoe, the Court found that the evidence of the expert witnesses on Guatemala’s judicial system was only “general in nature,” as the “appellants ha[d] not produced detailed evidence showing instances where the Guatemalan judiciary ha[d] been corrupted by the power of foreign corporations.”[7] In spite of this weakness, the Court found that the evidence was sufficient to establish that “corruption in the Guatemalan justice system is widespread.”[8] However, the Court tempered this finding by noting that “broad assertions of corruption should be given limited weight, whereas detailed and cogent evidence of corruption should attract significant weight.”[9]

In Nevsun, the BCCA again admitted general evidence of judicial corruption. The plaintiffs submitted secondary reports by organizations such as Human Rights Watch to show that they would not receive a fair trial in Eritrea. The Court found that these reports, despite their general nature, could be used “for the limited purpose of providing a social, historical and contextual framework.”[10] The Court further explained that even though the reports did not allow for testing of “the facts and opinions expressed through cross-examination or otherwise,” they could be admitted to establish judicial corruption because they were the only means of adducing the necessary “social” evidence.[11] Recognizing how difficult it is for plaintiffs to provide detailed, first-hand evidence of corruption by state actors, the BCCA was flexible in the evidence it would accept to establish judicial corruption.

The Weight Given to Judicial Corruption

Before Tahoe and Nevsun, it was unclear how judicial corruption would factor into the forum non conveniens test. In Tahoe, the BCCA found that evidence of judicial corruption only has to show that there is “a real risk that the alternate forum will not provide justice.[12]” Furthermore, this factor is to be considered alongside all other relevant factors “with the overall burden on the defendant to establish that the proposed alternate forum is in a better position to dispose fairly and efficiently of the litigation.”[13]

The BCCA in Nevsun not only endorsed this test, but found that judicial corruption in Eritrea outweighed “the expense, inconvenience and practical difficulties of mounting a trial in British Columbia” when deciding not to grant a forum non conveniens action. The Court explained that “the cost, inconvenience and expense that would be involved must be looked at in the light of the grave allegations that the plaintiffs’ claims comprehend.”[14]

Conclusion

The Tahoe and Nevsun decisions demonstrate a new, flexible approach to the types of evidence that will be admitted to establish judicial corruption in a foreign court and the significance of this evidence to the forum non conveniens analysis. This flexibility will make it easier for plaintiffs to combat stays on the grounds of forum non conveniens. In this way, the BCCA’s decisions in Tahoe and Nevsun have made it significantly more difficult for Canadian companies to use forum non conveniens to avoid liability for the actions of their subsidiaries in allegedly corrupt foreign states. With this procedural hurdle weakened, international corporations that disregard human rights abroad will have more difficulty avoiding liability for their actions.

AC

 

References

[1] Van Breda v. Village Resorts Ltd, 2012 SCC 17 at paras 103 and 104, [2012] 1 S.C.R. 572 [Van Breda].

[2] Van Breda, supra at 108.

[3] Van Breda, supra at 109.

[4] Garcia v. Tahoe Resources Inc, 2017 BCCA 39 at para 124, [2017] 5 WWR 631 [Tahoe].

[5] Tahoe, supra at 1.

[6] Araya v. Nevsun Resources Ltd, 2017 BCCA 401 at paras 2-3, 285 ACWS. (3d) 847 [Nevsun].

[7] Tahoe, supra at 109.

[8] Tahoe, supra at 113.

[9] Tahoe, supra at 125.

[10] Nevsun, supra at 113.

[11] Nevsun, supra at 98.

[12] Tahoe, supra at 124.

[13] Tahoe, supra at 120.

[14] Nevsun, supra at 118.

By |February 20th, 2018|Blog|

The ICC’s Africa Problem:
What to make of Burundi’s exit

International Criminal Court building (2016) in The Hague

By William Onyeaju, JD candidate, Osgoode Hall Law School

On October 27, 2017, the Republic of Burundi became the first country to leave the International Criminal Court (ICC). As one Burundian activist lamented, “The decision to withdraw Burundi from the Rome Statute comes at a time when the machine continues to kill with impunity in Burundi. Today, Burundian justice, as it is so called, has lost contact with life. It has become a mere tool of repression of any dissenting voice.” In contrast, a Burundian government spokesman called the withdrawal “a great victory for Burundi because it has defended its sovereignty and national pride.”

About the ICC

The ICC was created by the Rome Statute in 2002 to try individuals for war crimes, crimes against humanity, and genocide. Generally, the ICC takes on those cases that participant countries are unable or unwilling to handle domestically. Of the 123 countries that are State Parties to the Rome Statute, 33 are from Africa. In the fight against impunity, the ICC has brought charges against high-profile individuals, ranging from warlords to heads of state, including Joseph Kony (Ugandan rebel leader), Omar al-Bashir (President of Sudan), Muammar Gaddafi (former leader of Libya), and Laurent Gbabgo (former President of Côte d’Ivoire).

The ICC was established to ensure “that the most serious crimes of concern to the international community do not go unpunished.” Burundi’s departure threatens to hamper the ICC’s work, not only within that country’s borders, where leaders stand accused of serious human rights violations, but also across the African continent. Its withdrawal has only served to exacerbate tensions between the ICC and Africa, where countries are increasingly turning their back on the institution.

Africa and the ICC

The ICC has been disparagingly labelled the “African court”, with critics alleging it disproportionately targets African countries while ignoring serious human rights abuses in other parts of the world. Critics point to the fact that ten out of the eleven current investigations at the ICC involve African countries, and that most of those indicted in its two-decade history have been from the continent. (However, as we will see below, this criticism appears to be at least partly misguided.)

Things came to a head in 2013, after the ICC indicted Kenya’s sitting President, Uhuru Kenyatta, and Vice-President, William Ruto, for crimes against humanity during the 2007 Kenyan elections. Kenya’s leaders accused the ICC of targeting Africans, with Kenyatta going so far as to call the ICC “a toy of declining imperial powers.”

Following the indictments, leaders at an African Union summit in 2013 unanimously agreed that no sitting African head of state should stand trial during his or her tenure, further expressing their support for Kenya’s embattled politicians. Ethiopia’s Prime Minister said, “On a number of occasions, we have dealt with the issue of the ICC and expressed our serious concern over the manner in which the ICC has been responding to Africa’s considerations.”

The Threat of Other Departures

Shortly before Burundi’s withdrawal, South Africa’s ruling African National Congress also announced that it was planning to pull out of the ICC. This was in response to the court’s ruling that South Africa had violated its ICC obligation to arrest Sudanese president Omar al-Bashir, who had visited the country the previous year. al-Bashir had been indicted by the ICC in 2009 for crimes against humanity, war crimes and genocide relating to the Darfur conflict. In a surprising turn of events, in 2017 the South African High Court declared the government’s withdrawal announcement not valid due to lack of parliamentary approval, leading the government to rescind its planned exit. As of 2018, South Africa’s long-term future as a signatory of the Rome Statute remains uncertain.

At one point, The Gambia also threatened to exit the ICC, following the lead of Burundi and South Africa. In late 2016, Gambia’s then-Information Minister described the ICC as “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.” However, after a new government was elected in 2017, The Gambia announced it will retain its membership with the court.

Rumblings of further African departures persist, although so far no countries have taken any meaningful steps towards doing so.

Understanding the Criticism

The criticisms of the former Gambian Information Minister, while hyperbolic, may be partially born out of frustration with perceived geopolitical biases at the ICC. Some of the world’s most powerful countries, including the United States and Russia, did not ratify the Rome Statute, and so are largely outside the court’s jurisdiction. African governments also point to conflicts and grave human rights situations in countries such as Venezuela, Iraq, and Myanmar which have not led to ICC indictments.

The ICC has defended itself against these criticisms by stating that the victims, to whom they are providing justice, are Africans, and that indictments by the ICC come from referrals to the court by African governments. For instance, the governments of Uganda, Mali and the Democratic Republic of Congo have referred cases and assisted with investigations that have led to convictions. The current chief prosecutor of the ICC (and Gambian national) Fatou Bensouda has said, “Any time I hear this about ICC targeting Africa, ICC doing double justice (standards), it saddens me, especially as an African woman.” She went on to say, “Most of these conflicts are happening on the continent … The ICC’s concentration on Africa is always a result of the engagement of the African people with ICC.”

Burundi’s Withdrawal from the ICC: Understanding the Context

In October 2016, Burundi’s parliament voted by a large majority to exit the ICC, leading to Burundi’s withdrawal in the fall of 2017. Burundi’s exit from the ICC came at a pivotal time in the country’s history. After decades of conflict between ethnic Tutsis and Hutus, the country was plunged into a twelve-year civil war which lasted until 2006. The end of the civil war ushered in multi-party elections with Pierre Nkurunziza (a former Hutu rebel leader) becoming Burundi’s new president. However, in 2015, Nkurunziza’s decision to seek a controversial third term in office sparked a new crisis which led to attacks on human rights.

According to a United Nations Commission of Inquiry, there are reasonable grounds to believe that crimes against humanity, such as extrajudicial killings, torture and sexual violence, have occurred. An estimated 500,000 refugees have fled the country. Investigations by Human Rights Watch (HRW) suggest that youth members of the ruling party, the Imbonerakure, are some of the main instigators of the violence. HRW’s research further indicates that Burundian police and intelligence officers are utilizing the Imbonerakure to identify opponents of the regime who have then been tortured and, in some cases, killed.

The timing of Burundi’s exit suggests the decision was driven by apprehension regarding international condemnation for human rights abuses, and the looming possibility of an ICC investigation. If this was Burundi’s strategy, it was ineffective. On October 25, 2017, the ICC opened an investigation into the Burundian crisis, asserting that the court had jurisdiction over human rights violations which occurred while Burundi was still a State Party.

Burundi stands alone (for now)

Burundi’s departure from the ICC has added another dimension to the sometimes difficult relationship between the court and the African continent. Although Burundi’s relatively small size may lead to perceptions that the country is less influential than other countries in the region, its exit can still be seen as another blow to the ICC’s legitimacy in Africa.

Meanwhile, many African states, including Nigeria, Tanzania, Botswana, Senegal, and Sierra Leone, have re-affirmed their commitment to the ICC. Their support suggests that calls from African governments to leave the ICC may be the statements of a “vocal minority.” With The Gambia rescinding its withdrawal, and with South Africa’s future at the court uncertain, it remains to be seen what kind of precedent the Burundi withdrawal will actually set.

WO

By |January 26th, 2018|Blog|

Legal Literacy in the Digital Age

Sample search for legal information.

Pictured: the future of legal access?

 

By Katherine Golobic, JD candidate, University of Toronto

Cody (not her real name) is a PhD student renting a basement apartment in Toronto. She struggles to balance her academic workload with two jobs and endless personal obligations. One evening in early December, her landlord came over to complete some repairs. During the visit, Cody introduced the landlord to her fiancée, Ellen. Cody could immediately tell that the landlord was not comfortable with their relationship, and he left soon after the introduction.

In the weeks that followed, Cody noticed that the landlord became increasingly negligent in his duties – he would wait days before replying to her messages and rarely acknowledged her maintenance requests. Cody is certain that her landlord’s behaviour has changed since his visit in December.

A few weeks ago, Cody’s hot water stopped working. She sent the landlord multiple urgent messages and received only vague replies stating that he was out of the country. The lack of hot water has forced Cody and her fiancée to shower at friends’ homes and at a local gym. Neither Cody nor her fiancée believe they have the resources to find another apartment or access legal help. They were not even aware that a legal remedy for their problem might exist. Feeling overwhelmed and at her landlord’s mercy, Cody wishes that she could access definitive answers and solutions without spending inordinate amounts of money or wasting time in a legal system that she does not trust to begin with.

 

Legalese, or Legal ease?

Cody’s story (some details have been modified to protect the individuals involved) exemplifies the threats to personal welfare that may arise where individuals lack knowledge about their rights or the availability of legal aid services. According to the Canadian Bar Association (CBA)’s 2013 Reaching Equal Justice Report, over a three-year period of time, 45 per cent of Canadians will experience a legally relevant event. Research has also shown that legal issues tend to “cluster” and disproportionately effect marginalized people (who also tend to be the least well-informed about the justice system).2 For Cody and other vulnerable Canadians, the access to justice crisis is far more complex than merely overcoming economic barriers to legal aid. It lies in a fundamental lack of public legal education. This often manifests itself in distrust of the judicial system, as well as the perception that the law only works for those with a certain degree of social or economic capital. As Cody’s story demonstrates, many people who experience legal problems may even fail to identify them as such. In such cases, lack of knowledge about one’s rights effectively nullifies them.

Research has shown that Canadians tend to view the justice system as untrustworthy, person-dependent, and difficult to navigate. The most commonly cited barriers to access include language, literacy, education, and disability. However, in most circumstances, the absence of basic knowledge of one’s rights is the largest initial hurdle.3 While lack of information is not the sole factor contributing to the realization of legal rights, addressing it may prove to be an efficient and cost effective strategy.

The Digital Future is Now

Comprehensive expansion of public legal knowledge should be as uniform as it is robust, in order to account for the diverse needs of those it serves. Digital technologies and internet platforms are well suited to such a role. According to the Canadian Internet Registration Authority, Canadians are among the top internet users globally, with over 87 per cent of Canadian households having access to online services.4 Mobile and web-based applications have the potential to educate and empower even the most remote citizens at every stage of the legal process. Efforts are currently underway to integrate new technologies into every step of the legal process. The CBA’s 2013 report outlines over thirty distinct targets to be reached between 2020 and 2030,5 including the use of technology in dispute resolution6 and the integration of online legal education into the delivery of services.7

Globally, Canada still trails behind many members of the European Free Trade Association and other developed nations in the accessibility, affordability, and timeliness of its civil justice system.8 While the CBA’s action plan involves harnessing the power of well-established technologies such as the internet, telephone, and audio-visual technology, on the international stage even more innovative projects are underway.

Tech Companies Take the Lead

Private organizations both within and outside Canada are shaping smart phones, cloud computing, and social media into useful tools for citizen engagement with the civil justice system.9 One example is LegalSwipe, a mobile application that provides public legal education and builds community engagement. While the developers concede that only a lawyer can provide legal advice, their goal is to inform citizens of their rights instantaneously and in plain language. The company also operates a not-for-profit called The LegalSwipe Foundation, which offers free legal rights workshops.

Other organizations are challenging ideas of access at even more complex stages of the legal process. The web-based “e-negotiation” application Smartsettle, developed in Vancouver, tackles mediation and dispute resolution, even in cases of multiple parties and/or issues. In the UK, a legal artificial intelligence tool called CaseCrunch is making legal decision predictions with alarming accuracy, exceeding the predictions of lawyers by more than 20 per cent.

Legal Literacy and Digital Literacy: Paths Forward

Ideally, applications such as these will reduce delays through the early management of disputes and help to overcome physical and social isolation from the justice system. However, it remains important to consider inequalities in technological literacy and distribution, as well as ideological backlash from those concerned that technological determinism will become the dominant trend in solving the legal aid crisis.13

These fears are not unwarranted. Many of those who lack access to justice are vulnerable citizens, and saturating the justice system with technological developments could exacerbate its complexity for this population. This demographic also tends to prefer acquiring legal advice from a human.14

Anticipating these issues before they arise and accommodating them will be no easy task, particularly because both traditional and modern approaches face the challenge of ensuring uniformity of information within and across jurisdictions. Nevertheless, a healthy interplay between law and technology can create more opportunities for public participation in the justice system and help to ease the burden of facing such a complicated system in complete isolation.

KG

 

By |January 19th, 2018|Blog|

Access to Abortion:
An International Human Rights Perspective on Canadian Law

Logo for the Committee on the Elimination of Discrimination against Women (CEDAW)

Logo, UN Committee on the Elimination of Discrimination against Women (CEDAW)

By Isabel Dávila, J.D. candidate, Osgoode Hall Law School

Canadian abortion policy historically derives both from case law and international instruments. In 1969, Parliament partially legalised abortion under s. 251 of the Criminal Code, which permitted abortion as long as a Therapeutic Abortion Committee decided the abortion was necessary for the woman’s health. In 1981, Canada ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which sets out a woman’s right to reproductive choice, although it does not specifically refer to a right to abortion.

The ratification of CEDAW was followed shortly by the 1982 adoption of the Canadian Charter of Rights and Freedoms. The Charter, combined with CEDAW and other new legal developments, opened up the possibility of a Supreme Court challenge to Canadian abortion laws. This challenge was eventually launched by famed Montreal physician Henry Morgentaler in the late 1980’s.

Dr. Morgentaler had founded the first freestanding clinic to offer safe abortion services in Canada in 1968. In 1970, the clinic was raided by police and he was charged with performing illegal abortions. Over the following decades, he was charged several times more, at one point serving ten months in jail. Then, in R v Morgentaler [1988] 1 SCR 30, Morgentaler’s appeal of his most recent criminal conviction led the Supreme Court to strike down s. 251 of the Criminal Code. This meant the full decriminalization of abortion in Canada.

Nevertheless, women continue to face many barriers to accessing abortion. According to constitutional law expert Martha Jackman,

Few Canadian hospitals provide abortion services, with most of these located in urban areas near the US border. The process for obtaining an abortion, wait-times, gestational limits, and the availability of counselling services vary greatly between provinces/territories and from hospital to hospital. Uninformed and anti-choice hospital staff members and health care professionals create additional barriers for women seeking abortions.[1]

Similarly, in 2016, the CEDAW Committee, a UN human rights body that monitors implementation of the CEDAW Convention, raised concerns that, even as Canada had taken “measures taken to facilitate access to legal abortion services,” there remained significant disparities in access across the country. The Committee recommended that Canada: “a) Ensure access to legal abortion services in all provinces and territories; [and] b) Ensure that the invocation of conscientious objection by physicians does not impede women’s access to legal abortion services.”

Other UN human rights bodies have declared that the denial of abortion can constitute a form of torture under the UN Convention Against Torture (CAT), which Canada ratified in 1987. In April 2016, the UN Working Group on Discrimination Against Women in Law and in Practice observed that “[i]n some situations, failure to protect women’s rights to health and safety may amount to cruel, inhuman or degrading treatment or punishment or torture, or even a violation of their right to life.” Furthermore, “[t]he Committee Against Torture and the Human Rights Committee have determined that, in some cases, being forced to carry an unwanted pregnancy to term amounts to cruel and inhuman treatment.” More recently, the CEDAW Committee’s general recommendation No. 35 stated,

[v]iolations of women’s sexual and reproductive health and rights, such as […] denial or delay of safe abortion and post-abortion care, […] abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.

Thus, there is a significant possibility that Canada’s current practice on the provision of abortion services does not comply with its international human rights obligations. (For more on the role of international law in the domestic context, readers are encouraged to check out a recent CLAIHR overview on applying international law in Canada.)

Improving Access

Several jurisdictions in Canada have implemented plans to improve access to abortion. Ontario passed a bill in late 2017 to forbid anti-abortion protests near clinics, with the aim of protecting patients from harassment and violence. In September, the premier of Nova Scotia announced a plan to implement universal cost coverage for the medical abortion drug Mifegymiso; since November 2017, women are now able to access reimbursement for the cost of the pill. This brings Nova Scotia in line with existing policies in New Brunswick and Alberta.

The Canadian government can also take action to continue these positive trends by ensuring that provinces meet the country’s international human rights obligations. While the division of powers means that the federal government cannot enact abortion service laws specific to every province, it can provide general guidance, in accordance with sections 3, 4, and 22(1) of the Canada Health ActHealth Canada has recently exercised this power by announcing changes to how Mifegymiso is prescribed and dispensed nationwide.

In their advocacy for more accessible abortion services, many Canadian civil society organisations have called on the federal government to develop a national gender equality plan addressing all forms of discrimination against women and girls, including access to abortion services. The Native Women’s Association of Canada has documented some of the most serious challenges:

We are very concerned about access to abortion, including access to both medical and surgical abortions, particularly in rural and northern areas. Canada is one of the only countries with a public health care system that does not have a national pharmacare program. Because of the cost of some drug regimes, this has penalizing effects for certain groups of women, including pregnant women seeking medical abortions and women with HIV.

The provision of general minimal guidelines for provinces would help satisfy these concerns by improving Canada’s compliance with several UN recommendations on women’s human rights. Federal guidance could also help to address the issue of disparate services and protection across the country.

Whatever steps come next, it is clear that, despite the legal provision for abortion, its actual provision remains limited and inconsistent nationwide. As civil society and academia call for further access, Canada remains at serious risk of violating its international human rights obligations.

ID

[1] Martha Jackman, “The Future of Health Care Accountability: A Human Rights Approach” 47 Ottawa L. Rev. 437

By |January 10th, 2018|Blog|