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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|

Celebrating the Ten Year Anniversary of the Responsibility to Protect: Battling WWII Global Displacement Rates with an Emphasis on Implementation

By Heather Cohen

Tomorrow marks the celebration of the ten year anniversary of the Responsibility to Protect (R2P). At the United Nations, the President of the General Assembly (PGA) will lead a thematic panel discussion from 10:00 a.m. to 1:00 p.m. EST in the Trusteeship Council Chamber. For those of you who will not be in New York, you can tune into the live webcast here.

The event brings together leaders and eminent experts involved in the creation, development, and implementation of the World Summit commitment. Panelists will reflect on the progress made to date, current and emerging challenges, and opportunities to accelerate implementation. Member States and observers will have the opportunity to ask questions and make brief comments from the floor.

From the International Coalition for the Responsibility to Protect:

The adoption of the responsibility to protect at the 2005 World Summit represented a significant step towards realizing the international community’s commitment to end the most horrific forms of violence and persecution. Member States affirmed their primary responsibility to protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity and accepted a collective responsibility to assist each other in fulfilling this responsibility. They also declared their preparedness to take timely and decisive action, in accordance with the United Nations Charter and in cooperation with relevant regional organizations as appropriate, when national authorities manifestly fail to protect their populations from these four crimes and violations.

Significant progress has been made during the past decade in elaborating this commitment. The Secretary-General developed a framework for implementation based on three mutually reinforcing pillars, which provides guidance on how States can best protect their populations (Pillar I), assist and encourage each other to uphold their responsibility to protect (Pillar II), and work collectively to ensure timely and decisive response (Pillar III).

Member States have also devoted considerable attention to the responsibility to protect. Since 2009, the General Assembly has adopted a resolution, held a formal debate, and convened six annual informal interactive dialogues. The Security Council has adopted more than thirty resolutions and Presidential Statements that explicitly reference the responsibility to protect. This body has also held an Arria formula meeting on the responsibility to protect. The Human Rights Council has included the principle in fourteen resolutions, covering both thematic and country-specific topics. At the regional level, the African Commission on Human and Peoples’ Rights has adopted a resolution on strengthening the responsibility to protect in Africa and the European Union has continuously supported the responsibility to protect and its operationalization.

This extensive consideration has contributed to the development of a consensus on core aspects of the responsibility to protect. Member States agree on the need to prioritize prevention, to utilize a full range of diplomatic, political, and humanitarian measures when addressing situations that feature the four crimes and violations, to consider military force only as a last resort, and to ensure that implementation of the responsibility to protect is in accordance with the United Nations Charter and other established principles of international law.

The past decade has also witnessed growing commitment to transforming the principle into practice. International engagement in cases like Cote d’Ivoire, Guinea, Kenya and Kyrgyzstan successfully mitigated the risks of genocide, war crimes, crimes against humanity and ethnic cleansing, demonstrating that the collective weight of the international community can make a difference. The responsibility to protect has also spurred the development of new institutional capacity, including global, regional, and sub-regional mechanisms dedicated to the prevention of these crimes and violations. By the end of 2015, fifty one Member States and the European Union had appointed focal points for the responsibility to protect.

Despite this progress, urgent challenges remain. Acts that may constitute genocide, war crimes, ethnic cleansing and crimes against humanity are currently occurring in far too many crises. The world has also witnessed the alarming rise of non-State armed groups that seek to spread violent extremist ideologies and are brazenly perpetrating atrocity crimes. These situations have created protection challenges of a staggering scale and produced widespread humanitarian crises, including a global migration and refugee crisis. These challenges have also stretched the ability of the international community to generate timely and decisive collective responses. The initiative by France and Mexico on restraint on the use of the veto, the Accountability, Coherence and Transparency (ACT) Group Code of Conduct, and similar proposals by the Elders have all encouraged Member States to refrain from taking action that either hinders or delays robust international responses to genocide, war crimes, ethnic cleansing, and crimes against humanity.

In more general terms, not all Member States have become party to the international conventions that set out the legal framework for the prevention and punishment of the crimes specified by the responsibility to protect, including the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions and the Rome Statute of the International Criminal Court. The Secretary-General and President of the International Committee of the Red Cross have also recently drawn attention to an alarming decline in respect for international humanitarian and human rights law, particularly in situations where national authorities have argued that exceptional security threats or political crises justify temporary abrogation from their legal obligations.

Given the ongoing occurrence of these grave international crimes and in light of the progress made over the past decade, it is clear that the responsibility to protect remains a vital and enduring commitment. As Secretary-General Ban Ki-moon has noted, it “offers an alternative to indifference and fatalism” and represents a “milestone in transforming international concern about people facing mortal danger into meaningful response.” The challenge now facing the international community is both practical and political: how to best uphold its responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity by accelerating implementation.

Ten years since the universal adoption of R2P, it remains a vital and enduring commitment, but the next decade must be about moving from commitment to implementation. Partnerships for prevention will be key and CLAIHR is proud to be a member of the International Coalition for the Responsibility to Protect. In the words of the PGA, “[a]ll of us, at the United Nations and beyond, have responsibility to take greater steps to promote tolerance, human rights, and human dignity.”

By |February 25th, 2016|Blog|

The Mandated 3-Month Wait for OHIP Coverage

By Shalu Atwal

While the Canadian health care system is widely touted for its universality, three provinces – Ontario, Quebec[1] and British Columbia – do not allow landed immigrants[2] to access provincial health care coverage until three months after their arrival.[3] According to a piece published by the Toronto Star, entitled “Ontario urged to eliminate OHIP wait,” there are two main rationales behind this policy.[4] First, the policy operates as a cost-saving measure. The three-month wait has supposedly resulted in $90 million in savings per year for Ontario. Second, delaying access to federally-funded health care serves to discourage medical tourism. In other words, the three-month wait disincentivizes persons moving to Ontario for a brief period of time solely for the purpose of taking advantage of free medical services. Instead, the Ontario Government provides alternatives for landed immigrants, including advising immigrants to obtain private insurance before arriving to Canada.[5] The government also funds several Community Health Centres (CHC), which provide primary care free of charge.[6]

However, critics of the policy maintain that these alternatives are inadequate. Private insurance is often not purchased because it is incomprehensive (e.g. emergency-oriented rather than preventative) or too costly.[7] The CHCs also have their barriers; for instance, Scarborough’s only CHC reported a waiting list of 3,000 uninsured newcomers seeking to access health care.[8] Regarding the policy itself, critics argue that it is not only arbitrary (why not impose a two-month wait instead?), but also ineffective. The Ontario Medical Association (OMA), which publicly advocates for the elimination of the wait, stated in a review paper that any immediate savings gained by not providing insurance to newcomers were subsequently depleted.[9] Immigrants without health coverage often seek primary medical care at hospital emergency departments, an expensive and already overcrowded part of the health care system.[10] Moreover, the OMA found that immigrants tend to delay seeking care until the three-month period is over.[11] Not only can this compound costs, as illnesses can worsen over time, but it also poses a danger to the broader community from a public health perspective. A former president of the OMA, Dr. Mark MacLeod, stated: “whether a person has an infectious disease, an urgent health event, an accident, or a chronic illness, the best possible outcomes will be achieved when the person seeks medical care as quickly as possible.”[12]

Critics also argue that the mandated three-month wait for health care coverage violates the right to health.[13] A right to health is recognized by numerous international instruments, including the Universal Declaration of Human Rights. However, while Canada is a signatory to the Declaration, it is not, in itself, binding law in Canada. In fact, Canada has not yet recognized a legal right to health.[14]

Even so, opponents of the three-month wait for OHIP coverage emphasize that its removal is the “right thing to do.”[15] When New Brunswick eliminated the wait, the Health Minister, Mary Schryer, echoed this sentiment, stating:

“Removing the three-month waiting period is the right thing to do… Our government recognizes that removing this barrier will enhance access to health-care services for immigrants…”[16]

 

[1] There are exemptions to the three-month wait in Quebec for infectious and communicable diseases and women are provided care for pregnancy, domestic violence, or sexual assault.

[2] This wait also applies to former residents returning from abroad.

[3] Caulford, Paul and Jennifer D’Andrade. “Health care for Canada’s medically uninsured immigrants and refugees.” Canadian Family Physician. 2012. 58: 725.

[4] Keung, Nicholas. “Ontario Urged to Eliminate OHIP Wait | Toronto Star.” Thestar.com. Toronto Star, 3 Feb. 2011. Web. 14 Jan. 2016.

[5] “OHIP Coverage Waiting Period.” Ontario Ministry of Health and Long-Term Care, 1 Dec. 2011. Web. 14 Jan. 2016.

[6] “Community Health Centres.” Ontario. Government of Ontario, 9 Sept. 2015. Web. 14 Jan. 2016.

[7] Elgersma, Sandra. “Immigration Status and Legal Entitlement to Insured Health Services.” Parliament of Canada. 2008. 7.Parliament of can not only compoitlement to Insured Health Services.”s oned: hese words: ruary 2012. , . This can not only compo

[8] Caulford, Paul and Jennifer D’Andrade 725.

[9] Ontario Medical Review. “Reviewing the OHIP Three-Month Wait.” 2011. 13.

[10] Ibid. 14.

[11] Ibid.

[12] “Three-Month Wait for OHIP.” Ontario Medical Association. 2016. Web. 14 Jan. 2016.

[13] “Right to Health Care Coalition.” Access Alliance. 2015. Web. 27 Jan. 2014.

[14] “The Health of Canadians – The Federal Role: Final Report” Parliament of Canada.

[15] Goel, Ritika and Michaela Beder. “Welcome to Canada…but don’t get sick.” CMAJ. 2012. 184(1): E103.

[16] Ontario Medical Review 17.

By |February 9th, 2016|Blog, Uncategorized|

Municipal Challenges, Global Obligations: Urban Childhood Poverty and International Treaty Law

By Kevin Laforest

The intersection of the local with the global has found a new manifestation in Canada’s urban cores. Toronto, where this writer is based, was recently crowned Canada’s child poverty capital. The report released by Campaign 2000, indicated that 28.6% of children in Toronto are living in low-income households. This is down only slightly from 2014’s 29%, a startling 149,000 children. This is not to say this is exclusively Toronto’s, or even Ontario’s concern – urban and childhood poverty can be found across the country. And despite the sheer scope of this problem, Canadians everywhere will have to act quickly as the international spotlight is fast approaching.

This coming spring, the Committee on Economic, Social, and Cultural Rights, (CESCR) the body which oversees the implementation of the ICESCR, will be conducting a review of Canada. The last time the Committee visited was in 2006. Ratified by Canada on 19 May 1976, the International Convention on Economic, Social and Cultural Rights (ICESCR) is otablene of the ten core international human rights treaties.[1]

Toronto’s involvement with the ICESCR began in the mid-1990s when local services realignment saw municipalities in Ontario take on a number of new roles as social assistance providers – something that the provincial government had previously been in charge of. The scale of this project can be seen in the table 1, above.[2]

As the city’s social assistance provider for nearly 20 years, Toronto’s response to the current child poverty crisis, entitled TOProsperity, will target six areas of need: housing stability; access to services; transportation; food access; quality jobs and living wages and; institutional change. The intersection of the Committee’s visit and the City’s poverty reduction strategy proves a timely moment to reflect on these obligations, and the different strategies employed to meet them.

There is a tension in the emergence of municipalities as international actors. The Supreme Court in 1994’s Shell Canada Products Ltd. v City of Vancouver which concerned the City’s boycott of Shell’s products due to the latter’s business interests in apartheid South Africa, held that municipalities, “must be restricted to municipal purposes and cannot extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality”[3]. The ratio in Shell Canada provides an interesting challenge for municipalities in the increasingly globalized world – global actors with a limited jurisdiction.

This emergence of municipalities onto the global stage provides opportunities for positive change, but remains shrouded in uncertainty. One the one hand, municipalities engaging with issues such as childhood poverty shows great potential for the creation and implementation of bespoke solutions to very local issues. On the other hand, as creatures of statute, cities are limited in the scope of the solutions they may implement. Given this challenge, there is the need for cooperation across provincial and federal and potentially international jurisdictions to engage with the diversity of issues which accompany poverty. This is precisely what international treaties envision.

Downloading the responsibility of urban poverty onto municipalities increases the risk that international treaties become a highly pluralistic regime, subject to localized interpretations of provisions. Nevertheless, TOProsperity and other municipally crafted anti-poverty strategies provide a much more accessible forum for lawyers and concerned citizens alike to ask that all levels of government recognize and respect Canada’s international obligations. TOProsperity, in its closing remarks, declares itself a movement, not a moment[4]. In which direction this movement is going, we have yet to find out.

[1] OHCHR Human Rights Bodies, online: http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx

[2] Andre Cote & Michael Fenn “Provincial-Municipal Relations in Ontario: Approaching an Inflection Point” (2014) 17 Institute on Municipal Finance & Governance, at 10.

[3] Shell Canada Products v Vancouver (City) [1994] 1 SCR 231 at para 101; [1994] 1 RCS 231, [Shell Canada].

[4] City of Toronto TOProsperity, online: City of Toronto <http://www.toronto.ca/legdocs/mmis/2015/ex/bgrd/backgroundfile-81653.pdf>.

By |January 19th, 2016|Blog, Uncategorized|

Bringing the Right Home? Canada’s Domestic Recognition of the International Human Right to Adequate Housing

By Lauren Pinder

Tonight approximately 30,000 Canadians will spend the night homeless. 1 in 5 low-income Canadians spend more than 50% of their income on accommodation. Paradoxically, Canada has signed and ratified several international human rights treaties that identify the right to adequate housing as a fundamental human right. There is an inherent disconnect between recognition of the right to adequate housing and the persistence of homelessness and unaffordable housing in Canada.

In 2007, the UN Special Rapporteur of Adequate Housing visited Canada and published key findings and recommendations for the country. The report identified that a key obstacle in upholding the right in Canada is that the right is not recognized in any Canadian legislation. Eight years have passed since this evaluation took place. Has Canada made any steps towards recognition?

International Recognition of the Right

Article 11 of the International Covenant on Economic, Social, and Cultural Rights outlines ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’.

Article 25.1 of the Universal Declaration of Human Rights states ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing…’

National Human Rights Act

Canada’s Human Rights Act does not outline a right to adequate housing. In regards to housing, the Human Rights Act states that the purchase of tenancy of accommodation cannot be denied based on prohibited discriminatory grounds. These include race, gender, source of income, etc. This is the only mention of accommodation of housing in the Act.

Provincial Human Rights Legislation

The Special Rapporteur’s Report identified that while no provinces outline a right to adequate housing in their human rights legislation, two provinces in some way addressed social and economic rights that are associated with housing.

Article 45 of Quebec’s Charter of Human Rights, short of directly including a right to adequate housing, guarantees for any person in need “the right for himself and his family to measures of financial assistance and to social measures provided to him by law, susceptible of ensuring such a person an acceptable standard of living.”

In Newfoundland and Labrador, the Human Rights Code was amended in 2006 to include ‘source of income’ – whether social assistance, employment insurance, wages, etc. – as a prohibited ground of discrimination for seeking occupancy.

Since the report was released, most provinces have amended their human rights legislation to include source of income and/or social class as a prohibited ground of discrimination along the lines of the national Human Rights Act and Newfoundland and Labrador. To this date, no province has taken the bigger step of including a specific right to adequate housing.

The Charter of Rights and Freedoms

In the report, the UN Special Rapporteur stated that since the 1982 induction of the Charter of Rights and Freedoms, the right to housing had seen advances. The Charter does not directly recognize a right to housing, or address housing in general. The report speculates that the section 7 right to life, liberty and security of the person or the section 15 equality right would provide an indirect route to addressing violations of the right to adequate housing.

Last year, this was put to the test with Tanudjaja v Canada Attorney General. Four homeless individuals challenged the constitutionality of the Canadian and Ontarian governments’ failure to implement strategies to address homelessness and provide affordable housing options. A successful challenge would have effectively created a positive duty for the government to create programs to provide affordable, adequate housing.

The case went to the Ontario Court of Appeal where it was dismissed in a 2-1 majority decision on two key grounds. First, the claimants did not identify legislation that violated their rights which is standard in a Charter Challenge. They instead argued that the failure to act was in violation of their right to housing. The decision states that in framing their argument this way, the claimants had made the issue one of politics and policy-making instead of a legal issue within the mandate of the judicial system. This framework could make any exploration of and determination regarding the issue resemble a public inquiry instead of a judicial application of law.

Second, the majority found that there is no law that confers a freestanding right to housing or a positive duty to establish programs that provide affordable housing. The court deferred to the legislature the ability to recognize the right to adequate housing.

In June of this year, the case was denied leave to the Supreme Court of Canada. This suggests that Canadian courts will likely only uphold the right to adequate housing if this right is directly recognized in legislation.

Building a Stronger Foundation

It does not appear that Canada has taken steps to recognizing the right to adequate housing in legislation since the Special Rapporteur’s report. However there have been positive advancements that could indicate a shift in approach. Last month a group of homeless people in British Columbia won a case at the B.C. Supreme Court that allowed them to set up tents and shelters in which to sleep in overnight. Within days of that judgement, Ontario announced that – following the recommendation from a panel of housing experts appointed in the spring – it has set a 10 year deadline to end homelessness in the province. This winter will mark the first point-in-time survey of the homeless population across Canada with the hopes of capturing the state of homelessness in Canada on any given day. The newly elected federal government ran on a platform that included a national housing strategy, which Canada does not currently have. Hopefully, these factors indicate that Canada is building a solid foundation for a future recognition of the right to adequate housing.

By |January 10th, 2016|Blog, Uncategorized|

Canadian Mining Companies and Human Rights Violations Abroad: Part I

This post is first of a three-part series examining Canadian multinational corporations, particularly within the extractive sector, and the issue regarding human rights violations caused by their actions abroad.

By Diana Norwich
In its July 2015 Concluding Observations on Canada’s compliance with the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee expressed concern over the “allegations of human rights abuses by Canadian companies operating abroad, in particular mining corporations and about the inaccessibility to remedies by victims of such violations”.(1) Last November, the Inter-American Commission on Human Rights (IACHR) released a statement on its 153rd Session, stressing its apprehension over reports of alleged human rights violations in Latin America, and urged the Organization of American States (OAS) to “adopt measures to prevent the multiple human rights violations that can result from the implementation of development projects, both in countries in which the projects are located as well as in the corporations’ home countries, such as Canada.” (2) As well as submitting reports of violations to these human rights bodies, some have turned to taking legal action against Canadian companies in Canadian courts, as seen in ongoing lawsuits against Tahoe Resources and Hudbay Minerals.

This may be considered the Canadian iteration of the chronic quandary of finding and holding legal accountability to transnational corporations (TNCs) in their home state, for the misconduct of their affiliates abroad. Over 50% of the world’s mining companies are headquartered in Canada, holding interests in properties across more than 100 countries. (3) When a violation of international humanitarian law occurs on the site of one of these mines outside of Canada, can the Canadian company be held legally responsible in their home state? Should it? The serious allegations of human rights abuses abroad, some of which are outlined in the report submitted by the Canadian Network on Corporate Accountability to the IACHR, raise pressing questions on Canada’s extraterritorial obligations. In many of these situations, the remedies that the domestic jurisdiction in which these violations occur can offer are inadequate, or entirely out of reach. In the background of the plaintiffs’ claims against Tahoe Resources, which asserted liability for severe shooting injuries allegedly caused by Tahoe’s mining security personnel, hangs concerns of the lack of judicial independence and corruption in Guatemala. Regardless, in their judgement issued November 9th, the British Columbia Supreme Court exercised forum non conveniens, declining jurisdiction in favour of Guatemala as “clearly the more appropriate forum”. (4) With these events, it is apparent that, given their considerable economic influence (in 2010, Canadian mining companies held 41% of the larger-company mineral exploration market in Latin America and the Caribbean) (5) and border-transcending dimensions, the actions of Canadian mining corporations play a significant role in the human rights conditions of their operational spaces, a role for which many stakeholders are demanding greater accountability and oversight from the Canadian government.

The business structures, multiple jurisdictions and the entangled nature of the interests of involved actors make a clear-cut division of responsibility difficult. As exactingly summarized by Professor John Ruggie, the former UN Special Representative of the Secretary General on Business and Human Rights, “[t]he root cause of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge.” (6) Professor David Bilchitz, a human rights and constitutional law professor and Chair of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, identifies three legal doctrines which exacerbate the accountability gap and prevent access to remedy for victims of human rights violations:(7)

  1.  The jurisdictional challenge: International law generally gives each state sovereignty over its own internal affairs, meaning that although the home state may have jurisdiction over a parent company that has incorporated in that state, it has no jurisdiction over the parent company’s foreign subsidiaries. Although the Maastricht Principles (8) provide that “[a]ll States must take necessary measures to ensure that non-State actors which they are in a position to regulate…such as…transnational corporations and other business enterprises, do not nullify or impair the enjoyment of economic, social and cultural rights”, there are serious considerations a state must balance when exercising extraterritoriality (as detailed by Jennifer Zerk in her report for the Special Representative of the UN Secretary General on Business and Human Rights).
  2.  Weak governance zones: Certain jurisdictions may lack an independent judiciary, or its laws may not be properly enforced. States wishing to encourage foreign direct investment may be reluctant to impose or enforce regulations on these businesses.
  3. Corporate structure and the separate legal personality: TNCs are not one entity. They are typically comprised of separate corporations constituted individually for different countries, each considered its own distinct legal entity with limited liability. As Professor Bilchitz puts it, “How does one hold the main corporate structure (or actors therein) accountable for its failure to meet its human rights obligations where it is divided into distinct legal entities across national borders?” (9)

In my next post, I will outline the current international and domestic framework of norms that have been established to address this issue, as well as transnational private regulation.

 

(1)UNHRC, “Concluding observations on the sixth periodic report of Canada”, CCPR/C/CAN/CO/6 (July 2015).

(2)OAS, “IACHR Wraps Up its 153rd Session” (7 Nov 2014), online: <www.oas.org/en/iachr/media_center/PReleases/2014/131.asp> [6].

(3)Government of Canada, “Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad” (June 2015), online: <www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/Enhanced_CS_Strategy_ENG.pdf.>

(4)Garcia v Tahoe Resources Inc, 2015 BCSC 2045, [5].

(5)Natural Resources Canada, “Canadian Global Exploration Activity”, online: <www.nrcan.gc.ca/mining-materials/exploration/8296>

(6)UNHRC, “Protect, Respect and Remedy: a Framework for Business and Human Rights” A/HRC/8/5, online: <www.reports-and-materials.org/sites/default/files/reports-and-materials/Ruggie-report-7-Apr-2008.pdf> 3.

(7) David Bilchitz, “The Necessity for a Business and Human Rights Treaty,” available at SSRN 2562760 (2014) 15-16.

(8)Maastricht Principles on Extraterritorial Obligations of States on in the area of Economic, Social and Cultural Rights. online

(9)Bilchitz, 16.

By |December 22nd, 2015|Blog, Uncategorized|

International Day for the Elimination of Violence Against Women 2015

By Jessica Mank

The United Nations has designated November 25 as the International Day for the Elimination of Violence Against Women. The day recognizes women around the world who are subject to rape, domestic abuse, and other forms of violence. [1] This day also marks the start of the White Ribbon Campaign (men against violence against women) in Canada. In addition to raising awareness, one of the goals of this day is to highlight that violence against women and girls is not inevitable; prevention is possible and essential.

On the international stage, Canada has supported resolutions calling for the elimination of violence and women. For instance, Canada’s work at the United Nations has supported the development of the Declaration on the Elimination of Violence against Women and the mandate for a UN Special Rapporteur on Violence against Women, its Causes and Consequences. At home, the Government of Canada advances a plan of action with undertakings in prevention, protection and prosecution. To read more about the Government of Canada’s general strategy to eliminate violence against women, click here.

With the recent culmination of this year’s federal election, Prime Minister Justin Trudeau is now faced with the challenge of implementing the reforms he pledged during his campaign, including those for the prevention of domestic violence and sexual assault. Prime Minister Trudeau has announced the launch of a national public inquiry into missing and murdered Indigenous women in Canada by summer 2016. Other policies promised in the Prime Minister’s electoral platform include developing a federal gender violence action plan, increasing investments in growing and maintaining Canada’s network of shelters and transition houses, and establishing a tougher stance on intimate partner violence. [2] The new government has also spoken out against Bill C-36. [3]

Missing and Murdered Indigenous Women

Nearly 1,200 Indigenous women were murdered or went missing between 1980 and 2012, according to an RCMP report issued in May 2014. A 2015 update has since been released including statistics and analysis on new cases of missing and murdered Indigenous women that have occurred since then. The update also addresses the initiatives and preventative developments the RCMP has taken in meeting the “Next Steps” outlined in the 2014 Overview.

The previous government did not undertake a federal inquiry into missing and murdered Indigenous women. Part of the action taken by the previous government was extending the Canadian Human Rights Act to cover Indigenous peoples on reserves, launching an RCMP database of missing persons and unidentified remains intended to help police services across the country investigate unsolved disappearances and suspected homicides, and toughening laws related to violent crime. [6]

Craig Benjamin, campaigner for the human rights of Indigenous peoples at Amnesty International Canada, says its time to move past “simplistic explanations,” such as attributing the phenomenon to crime. “We have to get to the point of understanding the violence is far more pervasive, that it has multiple causes and that it does in fact have deep roots in our society and the relationships between aboriginal and non-aboriginal people.” [7]

At this point, Indigenous and Northern Affairs Minister Carolyn Bennett has announced that Prime Minister Trudeau expects to launch pre-inquiry consultations with families, civil society groups and other stakeholders in the next few weeks regarding the national inquiry on missing and murdered Indigenous women in Canada. The government plans to make an announcement on its findings in early December 2015. [8]

Domestic Abuse

In January 2007, the United Nations General Assembly adopted a resolution that called for National Action Plans to end violence against women. The resolution provides that all states should adopt National Action Plans in order to address gaps in current policies, programs and services, to involve various women’s organizations in identifying the necessary solutions, and to ensure accountability in delivery. [9]

Trudeau has pledged to develop and implement a comprehensive federal gender violence strategy and action plan, though it is not yet clear what this plan will look like. His government has also pledged to increase investments in growing and maintaining Canada’s network of shelters and transition houses as part of a broader investment in social infrastructure, and to amend the Criminal Code to reverse onus on bail for those with previous convictions of intimate partner violence. [10]

The UN resolution recognizes that violence against women is rooted in historically unequal power relations between men and women and urges states to take action to eliminate all forms of violence against women by means of a more “systemic, comprehensive, multisectoral and sustained approach, adequately supported and facilitated by strong institutional mechanisms and financing.” [11]

In its 2013 report, the Canadian Network of Women’s Shelters and Transition Houses made the case for a Canadian National Action Plan in Violence Against Women, noting:

  • The federal government does not currently identify women as an at-risk population in terms of partner violence or sexual assault.
  • Focus at the federal level is on gender-neutral victims of crime and family violence.
  • Federal initiatives offering support and services to victims of violence against women maintain gender neutrality
  • There are many needs that remain unmet by the traditional justice system, social services, and health care system. [12]

The report states that some of the most pressing issues for victims of domestic violence include the financial impact of crime and violence:

  • Many women living with abuse cannot afford to escape the violence and, for economic reasons, may be forced to remain in homes with violent partners.
  • Women’s shelters often suffer from inadequate funding to meet the demand in communities for women and their children.
  • There a is a lack of safe, affordable community housing for those fleeing violence. [13]
  • Victims who require mental health support to deal with the trauma they have suffered must often seek help at their own expense.

Sex Work and Bill C-36

In December 2013, the Supreme Court of Canada struck down Canada’s prostitution laws. The court held that the provisions violated the Charter by threatening sex workers’ rights to life, liberty and security of the person. Significantly, critics of Bill C-36 argue that the new bill largely recreates the problems in Bedford and actually limits the safe ways for sex-trade work. Trudeau and the Liberal Party voted against Bill C-36, and have spoken to repealing it while in office. [15]

In Bedford the SCC acknowledged that prostitutes in Canada face a high risk of physical violence, and held that ss. 210, 212(1)(j) and 213(1)(c) not only deprived applicants of their liberty in light of the availability of imprisonment as a sanction, but also made any security enhancing actions or methods illegal.

Evidence demonstrated that working in-call is the safest way to sell sex, yet those who attempted to increase their level of safety by working in-call faced criminal sanction. Out-call work may be made less dangerous if a prostitute is allowed to hire a bodyguard, but these business relationships were illegal. The law prohibited street prostitutes, largely the most vulnerable prostitutes, from screening clients at an early stage in the transaction, putting them at an increased risk of violence. [16]

Bill C-36 criminalizes the sale of sexual services in public spaces where persons under the age of 18 could be present. The act also makes it illegal for a person to get a “material benefit” from the sale of sexual services by anyone other than themselves. The enacting federal government maintained that the intention of the bill was to target johns, pimps and traffickers, but critics warn that the bill criminalizes prostitution and its effect will be placing sex workers in jail. [17]

Prior to being elected, Trudeau campaigned on repealing Bill C-36. It is unclear what his government will propose in its place.

Will Trudeau make an impact on the elimination of violence against women?  

Questions remain as to whether Trudeau’s government will be able to deliver on campaign promises to bring reform to the issue of violence against women, and also as to what these reforms will look like. The selection of a gender-equal cabinet signifies a commitment to change and diversity, and holding a majority government will certainly assist the Liberals in implementing reform. However, it also means that expectations for reform remain high. [18]

So far it is clear that the new government is making the national inquiry into missing and murdered Indigenous women one of its first priorities. How quickly this inquiry will materialize and whether it will lead to more purposive action on the part of the federal government remains uncertain.

No timelines have yet been given to a National Action Plan to end violence against women, or to addressing Bill C-36. It regard to the former, it is unclear whether such a National Action Plan will respond to the areas identified in the Canadian Network of Women’s Shelters and Transition Houses’ 2013 report on violence against women.

As to Bill C-36, Pivot, a legal group that helped fight for sex workers’ rights at the SCC has recently stated they will launch a Constitutional challenge if the Liberal government does not act immediately to repeal the bill. [19] Justice Minister Jody Wilson-Raybould recently commented that the government would look at possible changes to Bill C-36. She stated, “we’ve had some preliminary discussions around the Bedford decision and how we approach it more broadly, and . . . that is going to involve having substantive discussions with people who are fundamentally impacted by this. And that’s something that we’re definitely going to look into and have further to say on that.”[20]

 

 

By |November 25th, 2015|Blog|