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Reflections on the UN Human Rights Committee’s Review of Canada’s Compliance with the ICCPR

By Lara Koerner Yeo

In early July, for the first time in ten years, the Human Rights Committee (the “Committee”) reviewed Canada’s compliance with the International Covenant on Civil and Political Rights (the “ICCPR”).

The Committee’s observations released on July 23rd, serve as the only United Nations treaty body review of the 2006-2015 period.[1] Leading into the election season, the observations are timely and constitute an important indication of key human rights issues that warrant domestic action.

The Committee discussed Canada’s reluctance to comply with the interim measures of the Committee under the First Optional Protocol to the ICCPR (the “OP-ICCPR”). In response to the Committee’s questions, the Canadian delegation advised that interim measures are not binding.[2] The delegation took the position that while Canada would consider the Committee’s interim measures, it cannot always agree with them, in which case it will not act on them.[3]

Canada’s response runs counter to General Comment 33 of the Committee (“GC33”). GC33 outlines that a State’s failure to comply with interim measures is incompatible with a State’s obligation to respect and act in good faith in the individual communication procedure under the Optional Protocol.[4] In short, if a State does not comply with Committee interim measures, the State is engaging in the Optional Protocol procedure in bad faith.

While Canada has a record of acceding to interim measures, in recent years this has changed. In 2011, for example, the Committee submitted an interim measure request to Canada that was not followed.[5] Canada claimed that there was no obligation to accede to the request because federal government officials received it after the claimant had been deported.[6] The Committee, in its response, noted that just as Canada has the capacity to deport individuals, so too does it have the capacity to return the deported.[7] It found that deporting the claimant had violated his Article 7 rights under the ICCPR.[8] Canada has yet to arrange for the claimant’s return.[9] There are other cases in the last two years where Canada has not acceded to interim measure requests by the Committee and the Committee against Torture.[10] In one instance, a claimant is now in hiding in Canada after the State took action to deport him irrespective of a Committee interim measure request that he not be deported.[11]

This lack of respect for interim measures indicates that, at least since 2011, Canada has engaged with the Committee in bad faith. The Committee’s observations urge Canada to “reconsider its position in relation to Views and Interim measures,” thereby complying with GC33.[12]

General Comment No. 31 (“GC31”) sets out a guiding principle and paradigm underpinning the Committee’s periodic reviews of States’ compliance with the ICCPR. The Comment clarifies that States must act in good faith when giving effect to the ICCPR.[13] It also articulates that States party to the ICCPR are under a general obligation to ensure the civil and political rights of all individuals in a State’s territory and subject to its jurisdiction.[14] Thus, complying with the ICCPR requires States to create a mechanism to monitor domestic implementation of human rights law, as well as realize a process of state response to and compliance with the recommendations and interim measures of UN treaty bodies.

There is no effective accountability mechanism to ensure that Canada complies with its international human rights obligations. While the issue of implementation was not specifically picked up by the Committee in its most current observations, numerous civil society groups recognize that implementation continues to be an overarching concern.[15] Canada’s failure to implement a transparent, accountable implementation mechanism suggests a lack of respect for international human rights law and an unwillingness to improve compliance with the law and UN treaty body recommendations.

Many of the issues the Committee highlighted as principal matters of concern are recent developments in Canada, including the crackdown on civil society dissent and evidence-based human rights advocacy.[16] The Committee also took issue with Bill C-51 and the enhanced powers of the Canadian Security Intelligence Service, failures to regulate Canadian mining companies operating abroad, excessive use of police force, insufficient independent accountability mechanisms to investigate allegations of police misconduct, indefinite detention of irregular migrants, and cuts to health care for irregular migrants and refugees.[17]

Other issues recognized by the Committee are longstanding and attributed in great part to Canada’s history of colonial displacement of Indigenous peoples and the expropriation of their lands. In fact, two of the three priority issue areas Canada is asked to report on within a year centre on Indigenous peoples, namely, the murders and disappearances of Indigenous women and girls as well as Indigenous lands and titles.[18]

In the review meetings, Canada received multiple questions about its response to missing and murdered Indigenous women and girls. The government responded by referring to the 2014 and 2015 RCMP Operational Overview reports on the subject, emphasizing the rate of violence perpetrated by Indigenous men against Indigenous women, as well as the number of Indigenous women who were intoxicated at their time of death.[19] The RCMP data is not comprehensive and the government’s choice of statistics downplays its legal responsibility, focusing instead on the tired game of victim- and Indigenous community-blaming.[20]

The Committee recommends Canada conduct a national inquiry, adding its voice to other UN actors, including the Special Rapporteur on the Rights of Indigenous Peoples and the Committee on the Elimination of Discrimination against Women (“CEDAW”).[21] In a March 2015 report on the murders and disappearances, CEDAW found Canada to be in violation of the Convention on the Elimination of All Forms of Discrimination against Women, including Articles 2, 3, 5 and 14.[22] Canada was last reviewed by CEDAW in 2008 and has an upcoming review in late 2016.

In response to a Committee question about on-going sex discrimination in the Indian Act,[23] the government replied that it was committed to an “incremental approach” to reform and, without noting a specific name or title, referenced a government special rapporteur as evidence of ongoing state action.[24]

There are fundamental problems with the government’s response in this regard. Firstly, as Sharon McIvor, who launched the first case to be decided in Court on this matter, McIvor v Canada,[25] eloquently stated in her remarks to the Committee:

There are many things that Canada should consult Aboriginal communities about. Continued Indian Act sex discrimination is not one of them. The right to be free from legislated discrimination by Canada is a non-negotiable right of Aboriginal women.[26]

By accepting an incremental approach, there is no guarantee when, if ever, legislated sex-discrimination will be eradicated from the Act. Canada’s response to this issue is antithetical to its domestic and international gender equality obligations. The use of an incremental approach as justification to the Committee is an embarrassment.

Secondly, the special rapporteur referenced by the government is Douglas Eyford, Ministerial Special Representative on Renewing the Comprehensive Land Claims Policy. Eyford’s rapporteur work and report focus is on the Comprehensive Land Claims Policy, not sex-discrimination in the Act.[27] In sum, the government’s “special rapporteur” seems not to exist.

The Committee’s observations reflect Canada’s recent failures to comply with its international human rights obligations. As affirmed by civil society, Canada has the resources, the human and financial capital to respect and implement international human rights.[28] Now all that remains is for Canada to comply.

Lara Koerner Yeo is a JD Candidate at the Univeristy of Toronto Faculty of Law. She is a Steering Committee Member of the Canadian Feminist Alliance for International Action and attended the Human Rights Committee review of Canada in July.

[1]    Human Rights Committee, “Concluding observations on the sixth periodic report of Canada,” UN Doc CCPR/C/CAN/CO/6, 23 June 2015, online at: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCAN%2fCO%2f6&Lang=en>.

[2]    Author’s personal notes from the Committee during its 114th session, 3176th meeting, 7 July 2015.

[3]    Ibid; Human Rights Committee, “Consideration of reports submitted by States parties under article 40 of the Covenant Sixth periodic reports of States parties due in October 2010 Canada,” UN Doc CCPR/C/CAN/6, 23 October 2013, at para 9, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCAN%2f6&Lang=en>.

[4]    Human Rights Committee, General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc CCPR/C/GC/33, 5 November 2008, see para 19, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC%2f33&Lang=en> (the OP-ICCPR allows individuals to submit complaints to the Committee alleging violations of their rights set out in the ICCPR; upon receipt of a complaint, the Committee follows the individual communication procedure provided for in the OP-ICCPR).

[5]    Human Rights Committee, Communication No. 2091/2011, Views adopted by the Committee at its 113th session (16 March-2 April 2015), UN Doc CCPR/C/113/D/2091/2011, 5 June 2015, online: OHCHR <http://www.ohchr.org/EN/HRBodies/CCPR/Pages/Jurisprudence.aspx>.

[6]    Ibid at para 9 (the federal government received the request in Ottawa 11 minutes after the claimant had been deported).

[7]    Ibid.

[8]    Ibid at para 11.

[9]    Supra note 2.

[10]  Email correspondence with Stewart Istvanffy (July-August 2015), counsel on individual complaints brought before UN treaty bodies.

[11]  Ibid; UNHR Committee, Communication No. 2284/2013 (a decision in this case is expected in October 2015).

[12]  Supra note 1 at para 5.

[13]  Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13, 26 May 2004, at para 3, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.13&Lang=en>.

[14]  Ibid.

[15]  The issue of implementation features in civil society submissions to the Human Rights Committee, see in particular the 5 June 2015 Amnesty International submission to the Committee, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=899&Lang=en.

[16]  Supra note 1 at para 15 (also see the Voices-Voix Dismantling Democracy report, available at http://voices-voix.ca/en/document/dismantling-democracy-stifling-debate-and-dissent-canada; Committee Member, Sir Nigel Rodley, referenced this report in his comments during the Committee’s 114th session, 3177th meeting, 8 July 2015).

[17]  Ibid at paras 6, 10, 11, 12.

[18]  Ibid at para 21.

[19]  Supra note 2.

[20]  Women’s Legal Education and Action Fund, Press Release, “Legal Strategy Coalition on Violence against Indigenous Women releases key concerns with RCMP “Missing and Murdered Aboriginal Women: 2015 Update” (29 July 2015), online: LEAF <http://www.leaf.ca/legal-strategy-coalition-on-violence-against-indigenous-women-releases-key-concerns-with-rcmp-missing-and-murdered-aboriginal-women-2015-update/> (see issue 3 “Limited data set masks RCMP failures and continues to cloud the facts”).

[21]  Supra note 1 at para 9 (also see OHCHR, Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, The situation of indigenous peoples in Canada, UN Doc A/HRC/27/52/Add.2, 4 July 2014, at para 89, online: <http://unsr.jamesanaya.org/country-reports/the-situation-of-indigenous-peoples-in-canada>).

[22]  Committee on the Elimination of Discrimination against Women, Report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination, UN Doc CEDAW/C/OP.8/CAN/1, 6 March 2015, at para 215, online: OHCHR <http://www.ohchr.org/en/newsevents/pages/displaynews.aspx?newsid=15656&langid=e>.

[23]  Indian Act, RSC 1985, c I-5 (the “Act”).

[24]  Author’s personal notes from the Committee during its 114th session, 3177th meeting, 8 July 2015.

[25]  2009 BCCA 153, 91 BCLR (4th) 1 (also see Aboriginal Affairs and Northern Canada, “Gender Equity in Indian Registration Act”, 2013, online: AADNC <https://www.aadnc-aandc.gc.ca/eng/1308068336912/1308068535844>).

[26]  Canadian Feminist Alliance for International Action, News Release, “Sharon McIvor delivers FAFIA Statement in the UN Human Rights Committee July 6, 2015” (7 July 2015), online: FAFIA <http://fafia-afai.org/en/sharon-mcivor-delivers-fafia-statement-in-the-un-human-rights-committee-july-6-2015/> (also see Sharon McIvor’s petition on the on-going legislated sex-discrimination, currently pending with the UN Human Rights Committee, Communication No. 2020/2010, online: PHRC <http://povertyandhumanrights.org/wp-content/uploads/2011/08/Mcivor-v.-Canada-Petitioner-Comments-December-5-2011.pdf>).

[27]  See Aboriginal Affairs and Northern Development Canada, “Renewing the Federal Comprehensive Land Claims Policy” (2 April 2015), online: AANDC <http://www.aadnc-aandc.gc.ca/eng/1405693409911/1405693617207>.

[28]  Ad hoc Coalition of Canadian and International NGOs, News Release, “Canada must take action on the United Nations Human Rights Committee’s Concluding Observations released today” (23 July 2015), online: Market Wired <http://www.marketwired.com/press-release/-2041376.htm>.

By |September 21st, 2015|Blog|

CLAIHR Board Member Heather Cohen Selected as Fellow at the Philippe Kirsch Institute

Our Board Member, Heather Cohen, has been selected for the role of Fellow at the Philippe Kirsch Institute (“PKI”). PKI is a legal training institute with a variety of continuing professional development (“CPD”) programs focused on international human rights and corporate social responsibility. PKI’s faculty consist of a consortium of former Supreme Court and international Judges, as well as leading lawyers.  They include such esteemed legal professionals as former Supreme Court of Canada Justice Ian Binnie, lawyer and educator John Norris, and Lorne Sossin, Dean of Osgoode Hall law school. PKI’s curriculum includes such programs as “Anti-Terrorism in Troubling Times: National Security and Secret Evidence” and “Effective Use of International Law before Canadian Courts,” along with many other topics, delivered both in person, and through webinars.

As a Fellow, Heather is looking forward to supporting future programs at PKI, developing partnerships, and designing events.  Revenues generated from PKI’s programs support the Canadian Centre for International Justice (“CCIJ”) which works with survivors of genocide, torture, and other atrocities. CCIJ also seeks redress for these individuals and works to bring perpetrators to justice.  Fellows are appointed for a two-year term.

CLAIHR is pleased with the opportunity to strengthen its partnership with the CCIJ, an organization with which it has jointly intervened in the past.


By |August 31st, 2015|Blog, News Releases|

Canada and International Criminal Law Online CPD


In partnership with Grapple Law, Canadian Lawyers for International Human Rights (CLAIHR) presents an online Continuing Professional Development session on international criminal law, and how Genocide, War Crimes and Crimes Against Humanity are prosecuted in Canada.

CLAIHR President Juda Strawczynski examines the criteria for establishing Genoicde, War Crimes, and Crimes Against Humanity, and the Munyaneza case, Canada’s first prosecution under the Crimes Against Humanity and War Crimes Act.

  • Professionalism Hours 0
  • Substantive Hours 0.5

You can purchase and view this series here.

By |July 10th, 2015|Past Events|

Torture as Tort online CPD

Torture as Tort CPD

In partnership with Grapple Law, Canadian Lawyers for International Human Rights (CLAIHR) presents an online Continuing Professional Development primer on Torture as Tort.

Learn about the criteria for establishing torture, how international bodies seek to prevent its occurrence, and how some jurisdictions allow the redress of torture as a tort. In particular, Heather Cohen from CLAIHR examines how Canadian courts have failed to allow litigants to sue in Canada for torture committed abroad and how this may be resolved in the future.

  • Professionalism Hours 0
  • Substantive Hours 0.3

You can purchase and view this series here.

By |June 21st, 2015|Past Events|

The International Law of State Immunity and Torture

The International Law of State Immunity and Torture

by Parinaz Lak


The absence of an international provision, governing State immunity in civil cases based on extra-territorial torture, has made the issue a disputed area in the law of sovereign immunity. In recent years, national courts mostly ruled in favor of State immunity and denied to hear claims of torture victims. Although being compatible with a State’s preference not to be prosecuted before foreign courts, this norm would accord the State effective freedom to avoid accountability for torture. In the unlikely emergence of a new State practice, a possible way to move the practice in a direction that is responsive to States’ obligation in international law would be to adopt an exception to the United Nations Convention on Jurisdictional Immunities of States and Their Property that expressly annuls State immunity in cases of torture.

The full paper is available here:

Parinaz Lak The International Law of State Immunity and Torture June 2015

Parinaz Lak is currently in the process of completing the National Committee of Accreditation requirements for Canada. She obtained her law degree from Shiraz University in Iran. Parinaz holds two LLM degrees from Tehran University and University of Toronto, both with a concentration in international law. In 2011, she received first prize for her paper, “The United Nations’ Sanctions and Challenges to Right to Education”, on a student competition held by The Iranian Association for United Nations Studies. She has served as a volunteer in various capacities with – The Iran Human Rights Documentation Center, the Iranian Canadian Center for Art and Culture, the Heart and Stroke Foundation and the Mahak foundation (Charity supporting children suffering from cancer). She has worked as a legal consultant in Fars Chamber of Commerce and Fars Industrial Managers Association. In that capacity she gave legal consults on trade regulations, contracts and the claims process for companies to delist from the UN Sanctions. She also served as a mediator in labour disputes.

Parinaz is also a member of the Iranian-Canadian Legal Professionals, the Ontario Bar Association and the Iranian Association for United Nations Studies. 


By |June 16th, 2015|Blog|

Access to Justice and the International Human Rights Framework

By Pamela R. Kovacs

 Access to justice is a trending topic in Canada and in many parts of the world. In the mix of current discussions, it is important to recall that access to justice is a right entrenched in international human rights law. It is also fundamental for the realization of other human rights.

Access to justice (AtoJ) is not simplistically defined, and it is “much more than improving an individual’s access to courts, or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable.”[1]

Justice and equity are intrinsically linked and shaped by human rights. The Special Rapporteur on the Independence of Judges and Lawyers has stated that a “complex fabric of rights related to access to justice” are contained in the major international human rights instruments:

The legal complexity and richness of the concept of access to justice lies in the fact that it is both a right in itself and the means of restoring the exercise of rights that have been disregarded or violated. As an indispensable component of specific rights such as the right to liberty and to personal safety, it is closely linked to the right to effective judicial protection (fair trial or due process), the right to an effective remedy and the right to equality.[2]

The triad of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights form the core of international human rights law. States ratifying the Covenants agree that they will abide by the rights enshrined in these treaties and work toward respecting, protecting, and fulfilling these obligations domestically through institutional mechanisms. Pursuant to the principle expressed in Article 26 of the Vienna Convention on the Law of Treaties, State parties are required to give effect to their obligations in good faith.[3] Canada acceded to both Covenants in May 1976.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is the cornerstone of international human rights law. The UDHR was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 as General Assembly Resolution 217A. Articles 7 and 8 provide for the right to equality before the law without discrimination, equal protection of the law, and the right to an effective remedy by competent national tribunals.

International Covenant on Civil and Political Rights

Article 2 of the International Covenant on Civil and Political Rights (ICCRP) builds on the UDHR. Similar to Article 7 of the UDHR, Article 2(1) of the ICCPR provides for non-discrimination, notably on the basis of social origin or status, meaning that ability to pay should not be a barrier to claiming rights. This is also reinforced in Article 26 which provides that all persons are equal before the law and entitled to equal protection of the law, without discrimination.

The Human Rights Committee (HRC) monitors the implementation of the ICCPR by State parties and provides guidance to States to help clarify and realize their commitments. In commentary for Article 2, the HRC has noted the positive obligations on States to ensure ICCPR rights and protect against violations.[4]

Similar to Article 8 of the UDHR, Article 2(3) of the ICCPR requires an effective remedy by competent authority. The HRC has commented that Article 2 requires that States “adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations.”[5] States are required to take steps across the spectrum of government control to ensure that rights are realized. The HRC has also stated that Article 2(3) “requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights.”[6] The addition of the term accessible complements the framework of equal and effective protection and remedy that the UDHR provides and is reinforced in the ICCPR.

The ICCPR also contains Article 14 which specifically addresses the administration of justice. The HRC has recognized Article 14 as the right to equality before the courts and tribunals and to a fair trial. The HRC has been clear that aspects of Article 14 relate to civil law matters[7] and the State is under an obligation to give effect to these rights: “A situation in which an individual’s attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of article 14…”[8]

From an AtoJ perspective, the recognition of de facto barriers is important. This requires the elimination of obstacles (e.g. financial, social, or cultural) that, in practice, erode the ability to claim justice. The removal of these barriers is the obligation of the State and requires, for instance, information about rights and laws, assistance in pursuing a legal matter, and an overarching affordable legal system. The HRC has stated:

The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While Article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings, in paragraph 3(d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so.[9]

In essence, the effective application of Article 14 is that representation and access to legal services is necessary for equal AtoJ in both civil and criminal matters. The ICCPR in Articles 26 and 14 provides for: equality before the law; equality under the law; equal protection of the law; and equal benefit of the law. This signifies “both formal equality, meaning the application of the law, and substantive equality, meaning the result and benefits of applying the law. For these equality rights to be effective, individuals must be given the ability to obtain legal assistance when required and thus effective access to the courts and the legal process.”[10]

The ICCPR adds much to a rights-based AtoJ framework. It reinforces the principles of equal (non-discriminatory) access, which entails equality of arms between parties and an effective system of competent authorities for hearing disputes, including in civil matters. De facto barriers must be removed and steps must be taken to give effect to the system from a “legislative, judicial, administrative, and educative perspective”.[11]

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR) contains no direct counterpart to Article 2 of the ICCPR, which obligates State parties to provide judicial remedy. However, the ICESCR notes in its preamble that “in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights” which includes “appropriate means of redress, or remedies … and appropriate means of ensuring governmental accountability.”[12]

Similar to the HRC, the Committee on Economic, Social and Cultural Rights (CESCR) provides guidance on interpretation of the ICESCR and its domestic application, noting that remedies may be judicial or administrative, but in the case of the latter, must be “accessible, affordable, timely and effective.”[13] With this description, the CESCR has added to a framework of AtoJ. Combining all of these elements creates a robust rights-based approach in which to view AtoJ constructed on the standards set forth in the major international human rights instruments: equal, accessible, affordable, timely, and effective.[14] State parties are under obligations to take steps to progressively realize this framework.


It is well established that the realization of some human rights is a process, while some rights, for instance, the right to be free from torture, must be realized immediately. Article 2(2) of the ICCPR, requires that State parties take the necessary steps to give effect to rights by legislating and building a system of laws and remedies that develops all human rights. This requirement is unqualified and of immediate effect: “A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.”[15]

Article 2(1) of the ICESCR outlines that States have the obligation to progressively realize rights, but “what is required from Canada is more than what is required from Chad.”[16] For many nations, rationing of justice systems and legal services has become the norm due to budgetary considerations, which, is an “overt challenge to universal equality before the law.”[17]

The CESCR indicates that States must take steps to realize their obligations and that these steps must be deliberate, concrete, targeted and appropriate.[18] Further, as reflected in Article 27 of the Vienna Convention on the Law of Treaties, State parties “may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

It is clear that there is “cost and complexity in giving effect to human rights”[19] but caution must be taken not to distract from the idea of the right itself, the aim sought, and a principled manner of realizing the right. In recent years, due to necessity, Canada has seen a surge of interest in AtoJ, particularly in civil matters. From the recent Canadian Bar Association Report on equal AtoJ to the Report of the Action Committee on Access to Justice in Civil and Family Matters to the expansion of the research agenda of the Canadian Forum on Civil Justice and burgeoning pro bono efforts. Further, there is a growing understanding that there are considerable costs to health and well-being when legal needs are not addressed and small problems morph into much larger ones.[20] In addition to a legal obligation, there is an economic argument in favour of AtoJ.

As the Special Rapporteur on the Independence of Judges and Lawyers has stated, “Access to Justice requires the establishment of a judicial system that guarantees rights, and of parallel measures such as mechanisms and programmes to facilitate free legal assistance.”[21] With the grounding that AtoJ is a human right, with a coherent framework for implementation, the importance of realization matters not only for Canadians and a system of justice, but for the larger multi-lateral environment related to human rights and accountability of the State towards its citizens as rights bearers. Canada has a legal obligation to realize these rights – they are not simply aspirational but must become concrete in practice.


Pamela R. Kovacs is currently a Research and Learning Officer with the International Development Law Organization. She formerly practiced law with McKercher LLP, was the founding Executive Director of Pro Bono Law Saskatchewan, and a member of a number of task forces and committees focused on access to justice. This post is based on her thesis: “Developed and Developing Views on Access to Justice”.


[1] United Nations Development Programme. ‘Access to Justice Practice Note’, 2004.

[2] Despouy, Leandro. ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers’, A/HRC/8/4, United Nations General Assembly, 13 May 2008.

[3] Canada acceded to this treaty on 14 Oct 1970.

[4] United Nations. ‘General Comment No. 31’, Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004) para. 8.

[5] Ibid., 7.

[6] Ibid., 15.

[7] United Nations. ‘General Comment No. 32’, Human Rights Committee, CCPR/C/GC/32 (2007) section III.

[8] Ibid., II.

[9] Ibid.

[10] See: Skinnider, Eileen. ‘The Responsibility of States to Provide Legal Aid’, Vancouver: The International Centre for Criminal Law Reform and Criminal Law Policy, Prepared for the Legal Aid Conference, Beijing, March, 1999 at 14-15.

[11] United Nations. ‘General Comment No. 31’, Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004) para. 7.

[12] United Nations. ‘General Comment No. 9’, Committee on Economic, Social, and Cultural Rights, E/C.12/1998/24 (1998) para. 2.

[13] Ibid., para. 9.

[14] See: Curran, Liz and Mary Anne Noone. ‘Access to Justice: A New Approach Using Human Rights Standards.’ International Journal of the Legal Profession, 15.3 (2008): 195-229 at 203.

[15] United Nations. ‘General Comment No. 31’, Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004) para 14.

[16] See: Hunt, Paul. ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’, A/HRC/4/28, 17 January 2007.

[17] Moorhead, Richard and Pascoe Pleasence. ‘Access to Justice after Universalism: Introduction’, Journal of Law and Society 30.1 (2003): 1-10.

[18] United Nations. ‘General Comment No. 3’, Committee on Economic, Social, and Cultural Rights., contained in document E/1991/23 (1990), para. 2.

[19] Rice, Simon. ‘A Human Right to Legal Aid.” Conference on Protection and Promotion of Human Rights Through Provision of Legal Services: Best Practices from Africa, Asia, and Eastern Europe, March 27-30, 2007 at 8.

[20] See: Pleasence, Pascoe. ‘Causes of Action: Civil Law and Social Justice’, 2nd ed. London: The Stationery Office, 2006. At 2.

[21] Despouy, Leandro. ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers’, A/HRC/8/4, 13 May 2008 at para. 23.

By |May 27th, 2015|Blog|

Thirty Years Since the Charter’s Equality Provisions and LEAF’s Founding. Where is Equality Now?

By Elizabeth Shilton

Women’s rights activists and advocates worked hard during the pre-Charter constitutional negotiations to gain broad equality rights provisions in the 1982 Charter of Rights and Freedoms. When those provisions came into effect on April 17, 1985, the Women’s Legal Education and Action Fund opened its doors to ensure that they would be given real meaning by the courts.

In its initial cases, LEAF addressed such relics as laws that prevented women from retaining their birth names after marriage. LEAF then quickly moved to tackle the pervasive problem of sexual violence. In the 1988 Canadian Newspapers Co. v. Canada (Attorney General) case, LEAF intervened to ensure that sexual assault victims would have a right to prevent publication of their names. Since then, LEAF has appeared before the courts many times to advocate for women who have been sexually assaulted. LEAF helped to convince the Supreme Court that silence does not mean consent (M(ML), 1992) that rape myths have no place in Canadian courts and that consent must be affirmatively communicated (Ewanchuk, 1999), that survivors of residential school sexual assault should be compensated (Blackwater v. Plint, 2005), that women sexual assault complainants with intellectual disabilities deserve equal access to justice (R. v. D.A.I., 2010), that unconscious women cannot consent (R. v J.A., 2011) and that women should not be deterred from reporting their assaults because they wear a niqab (R. v. N.S., 2012).

LEAF also went to court  to ensure that women’s past sexual history (Seaboyer, 1991) and medical records (O’Connor, 1995) were not fair game in sexual assault trials for defence counsel seeking evidence of sexual history or mental health problems to impugn their credibility. I was co-counsel in both these cases. In O’Connor, LEAF intervened in coalition with the Aboriginal Women’s Council, the Disabled Women’s Network of Canada (DAWN) and the Canadian Association of Sexual Assault Centres. We argued that the counselling records of women alleging sexual assault should not be accessed by lawyers defending Bishop O’Connor, a priest and former residential school principal subsequently convicted of rape. In our view, the records sought had no relevance either to the facts of the case, or to the credibility of the witnesses. Although we were unsuccessful in court in both these cases, our courtroom advocacy formed the basis for our law reform work which resulted in legislative protections in the Criminal Code to prevent courtroom violations of women’s privacy from compounding the violations of their bodies from sexual assault.

But law reform on issues involving sexual violence is still very incomplete, as we have recently been reminded by the horrendous death of Edmonton woman Cindy Gladue and by the treatment her death received at the hands of the law. The Crown’s extraordinary and unprecedented introduction of the most intimate of a woman’s body parts into evidence in that trial, along with arguments from defence counsel that Ms. Gladue died because she consented to the “rough sex” that resulted in a mortal wound to her vagina, show us how far the criminal justice system still has to go before women are respected and protected by its processes.  The jury verdict in that case, acquitting the man who inflicted that wound, reinforces a harsh reality of which we are already well aware in a country where over 1100 Indigenous women and girls have gone missing or been murdered since the Charter became part of our constitution – the reality that women cannot count on the law to protect them from sexual violence either inside and outside the courtroom.

I became involved with LEAF in its heady early days when the Charter was new and the winds of change seemed to carry the promise that women’s equality was just over the horizon. Some gains have indeed been made over the three decades since the Charter’s equality rights provisions came into effect, but not for all women in Canada and certainly not for Cindy Gladue. There are very few national feminist organizations in Canada, and fewer still that fight in the courts to ensure women’s equality rights are considered when legal decisions are made. I believe that LEAF’s work is more necessary than ever. Until women like Cindy Gladue and their families are treated by the law with respect, compassion and equality, we must continue that work.

Elizabeth Shilton is a Senior Fellow with the Centre for Law in the Contemporary Workplace at Queen’s University and an Adjunct Professor at Queen’s Law.  Prior to returning to school to complete her doctorate in law, she was the long-time managing partner of the Toronto law firm of Cavalluzzo Hayes Shilton McIntrye & Cornish, where she practiced labour/employment and equality law. While in practice, she represented LEAF and other equality-seeking organizations before the Supreme Court of Canada in a number of cases.  In the late 1980s and early 1990s she served as a board member of both LEAF and the LEAF Foundation, and twice co-chaired LEAF’s National Legal Committee. In 2010, she was among the “lawyers who have made a difference” honoured by LEAF as part of its 25th Anniversary celebrations.

This piece was originally published at leaf.ca, and appears here with permission.


By |May 17th, 2015|Blog|

Beijing+20 – a gathering of the decades for the 2015 Commission on the Status of Women

By Lara Koerner Yeo

2015 marks the 20th year anniversary of the 1995 Beijing Declaration and Platform for Action: the seminal outcome document of the Fourth World Conference on Women in Beijing. The Platform, commonly recognized as the blueprint for women’s equality, outlines actions to be undertaken by States to end gender discrimination and achieve gender equality in twelve key areas, including education, health, participation in public and political life, access to media and telecommunications technologies, and State response to all forms of violence.

In an op-ed for International Women’s Day on March 8th, Executive Director of UN Women, Phumzile Mlambo-Ngcuka, makes clear that while there has been progress towards gender equality, there remains an enormous gap in implementation across the world and a need for renewed political will to combat gender discrimination. The statistics Mlambo-Ngcuka shares are a sobering reminder: in 1990, twelve women were Heads of State; in 2015, there are fifteen. Eight out of ten parliamentarians in the world are men, and given the rate of women entering the salaried workforce around the world, we are more than eight years away from gender parity in the workforce and more than seventy-five years away from equal pay for equal work between the sexes.

International Women’s Day this year served as a gateway to the fifty-ninth Commission on the Status of Women in New York, held from 9-20 March. The gathering is recognized as CSW59/Beijing+20, and had the specific mandate to review the implementation of the Platform for Action and the outcome documents of the twenty-third special session of the General Assembly.

Notably, there is no Fifth World Conference on Women this year after UN Member States failed to pass a resolution for another conference in 2012. Many feminists were opposed to another conference: fearing that Member States would backtrack on Beijing commitments if the document were to be reopened for debate; noting that the focus must remain on continuing to implement what is in the Platform for Action now, given how far Member States still need to go to achieve gender equality; and wanting the financial resources that would be spent on a conference to be allocated to other endeavours to support women’s equality work. World conferences, however, remain a vital tool to galvanize movements and refocus international and domestic efforts on complex issue areas. While there are many who support and continue to push for another World Conference on Women, for now, State delegations, including a Canadian delegation, and women’s rights advocates and professionals have gathered in New York for CSW59/Beijing+20.

Federal Minister on the Status of Women Kellie Leitch, led the Canadian delegation. Prior to the start of the fifty-ninth session, Minister Leitch released a statement on the occasion of International Women’s Day. The statement highlights that the “Government of Canada is committed to taking actions that promote economic opportunities for all Canadians, including women… and has also committed to keeping our communities safe for all Canadians”. Canada’s National Review for the Commission includes actions by Canadian governments to achieve gender equality under ten of the twelve key issue areas identified in the Platform for Action, omitting review sections on Women and the Economy and an Institutional Mechanism for the Advancement of Women.

While a reading of Status of Women Canada statements and Canada’s National Review provide a reader with a sense that Canadian governments are taking concrete , comprehensive action to achieve gender equality—international gender indexes when compared over time provide contrast. Canada ranked 19th in the 2014 Gender Gap Index, slightly improved from 2013’s 20th ranking, though a downward departure from 2006‘s 14th ranking. Canada ranks 8th in the 2014 UN Human Development Index; while an improvement from 2013’s 11th ranking, it is a notable plummet from Canada’s 1st placed ranking throughout much of the 1990s.

Representatives of Canadian civil society, including the Canadian Federation of Univeristy Women, and the Canadian Labour Congress (CLC), submitted non-governmental organization statements to the Commission. The CLC statement provides an overview of key findings from the Canadian Centre for Policy Alternatives (CCPA) shadow report on the status of Canada’s implementation of the Beijing Declaration and Platform for Action. The CCPA, read alongside Canada’s National Review, presents a more realistic review of the challenges that continue to bar gender equality in Canada. The report notes the low rates of access to child care for Canadian families; the disproportionate burden on women to provide unpaid childcare work; the uneven access to abortion services across Canada; the relatively stagnant rate of change on women’s poverty and the gender gap in the workforce; a lack of gender analysis across government policies and programs; the disproportionate negative impact upon women following State austerity measures in the advent of the financial crisis; and the persistent barriers to women’s political representation.

Status of Women Canada notes that they consult and engage with women’s organizations throughout the National Review. While the CCPA report clearly articulates that there are lost opportunities for substantive partnerships between government and Canadian civil society stemming from changes to the SWC mandate, gender-blind policies, and funding cuts to organizations that conduct research, policy analysis, and advocacy on women’s equality and human rights issues in Canada.[1]

Indeed, in Canada today there have been funding cuts and an advocacy chill felt by social justice and environmental organizations, including charities and women’s organizations that conduct policy research and advocacy. There has also been the loss of the long form census, which has had negative impacts on data analysis, including gender data analysis.[2] Further, the Canadian government has made clear that there is inconsistent race-disaggregated data collected across the criminal justice system.[3] In sum, there is uneven access to sex- and race-disaggregated data across data indicators, which is a critical tool to understanding the nuances and intersections of sex and racial discrimination and working towards gender equality for all.

We have much to celebrate as women and men, boys and girls, in Canada. As a country, we have the human, institutional, and financial resources to achieve gender equality. However, we’re not there yet. As we celebrate the 20th anniversary of the Beijing Declaration and Platform for Action, take a moment to consider how we can take action in support of women’s equality and human rights in Canada.

One easy action includes supporting a national dialogue on gender equity and justice issues, such as that advanced by the Up for Debate campaign. Up for Debate represents a coalition of over 150 organizations in Canada calling for a national leaders debate in anticipation of the 2015 federal election on issues such as women’s economic inequality, violence against women, and the lack of support for women’s leadership and organizations. One can also choose to financially support organizations, such as the CCPA, that continue to conduct civil society policy research to augment government reporting and inform policy discussions. And one can stay tuned to on-going women’s rights controversies that arise, such as the current attack on Muslim women’s rights in Canada. In response to such occurrences, one can choose to take action in solidarity by speaking out in support of women’s equality and rights, signing petitions, and calling political representatives to state one’s position—small actions that can create substantial change when magnified by millions of similar small actions across the country.

[1]    Canadian Centre for Policy Alternatives, Progress on Women’s Rights: Missing in Action A Shadow Report on Canada’s Implementation of the Beijing Declaration and Platform for Action, October 2014, at 85, online: CCPA <https://www.policyalternatives.ca/publications/reports/progress-women%E2%80%99s-rights-missing-action>.

[2]    Ibid at 82-3.

[3]    Ibid at 45; Committee on the Elimination of Discrimination against Women, Observations of the Government of Canada on the report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/CAN/2, 6 March 2015, at para 40, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_2_7644_E.pdf>.

By |May 10th, 2015|Blog|

The Responsibility to Protect Turns 10

By Logan St. John-Smith

This year is the tenth anniversary of the 2005 World Summit, which brought together more than 170 Heads of State and Government at the United Nations (UN) Headquarters in New York.

One of the most important developments to come out of that historic meeting is encapsulated in paragraphs 138-140 of the 2005 World Summit Outcome Document, where the UN General Assembly endorsed what is known as the Responsibility to Protect (R2P), and made a commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.  Should national authorities fail in their duties to protect their citizens, and peaceful means of achieving this goal be inadequate, collective military action may be authorized through Chapter VII of the UN Charter and the Security Council.

The Responsibility to Protect doctrine was first articulated in the Report of the International Commission on Intervention and State Sovereignty in December 2001 as the result of an initiative sponsored by the Government of Canada. To its supporters, R2P represents a significant normative development and a foundational step for greater protection for human rights globally. To its detractors, R2P represents a violation of the principles of state sovereignty and a license for war.

For both sides of this debate, the 2011 NATO-led intervention in Libya that ousted Muammar Gaddafi is a watershed moment. UN Security Council Resolution 1973 authorized member states to take all necessary measures to protect civilians under threat of attack in Libya, leading to an eight month bombing campaign that culminated in the death of the Libyan leader. This explicit invocation of the Responsibility to Protect doctrine in justifying military action is viewed today both as the vindication of the principles endorsed at the 2005 World Summit, and as the proof of its potential for abuse.

The Secretary General’s Sixth Report on the Responsibility to protect was released in August 2014. Produced annually since 2009, these reports are part of an informal dialogue at the UN General Assembly regarding the further implementation and entrenchment of the Responsibility to Protect. Noting that the doctrine is being tested by the unfolding crises in Syria and elsewhere, the Secretary General this year called on member states to use the 10th anniversary of the 2005 World Summit to craft an ambitious vision for the future of the Responsibility to Protect.


By |May 4th, 2015|Blog|

Remembering the Rwandan Genocide

By Jessica Thrower

This month we commemorate the twentieth anniversary of the Rwandan genocide – an appalling atrocity where an estimated 800,000 to 1 million Rwandans were murdered in a three-month period that began April 7th, 1994. What are some of these lessons learned from the Rwandan genocide?

  1. It starts with words

One of the first lessons learned from the Rwandan genocide is that these events occurred as a result of state-sanctioned incitement to hate. The media conducted an orchestrated dehumanization and demonization of the minority Tutsi population, calling the Tutsis “cockroaches”. A private radio station, Radio-Television Libre des Mille Collines, later helped conduct the genocidal onslaught by giving specific orders on how to carry out killings, including identifying individuals to be attacked and where specifically they could be found.

Although Rwandans and international observers deplored the media campaign conducted against the Tutsis early on, no one intervened to stop the calls of hatred or the promotion of violence. In an attempt to prevent genocides before they happen, the international community must ensure that they are prosecuting individuals that are trying to incite genocide (as it is a crime under the Genocide Convention) and work to jam airwaves to prevent organized killing campaigns.

  1. Violence used against vulnerable populations

The second lesson learned is the consistent use of violence targeted at vulnerable populations. During mass atrocities, women, children, and refugees are often the first victims of oppression and brutality. The evidence presented at the International Criminal Tribunal for Rwanda showed that sexual violence and rape are regularly used as a weapon of war and a means to ensure the continued degradation, humiliation, and torture of the population.

  1. Danger of indifference and consequences of inaction

The third lesson learned is the danger of indifference and the consequences of inaction. The Rwandan genocide not only occurred because of state-sanctioned violence, but also because of international idleness regarding the establishment of an arms embargo, the stopping of aid, and use of military intervention.

In the Rwandan genocide, soldiers, the national police, and militia used small arms, grenades, and mortars. They attacked churches, schools, hospitals, and other regular gathering points for Tutsis, killing thousands of individuals. After this first wave of assaults, the survivors were then further terrorized by a second wave of attacks from civilians that wielded machetes or homemade weapons. Although the UN Security Council eventually established an arms embargo against the country, this occurred too late to prevent further genocide. Had the UN Security council imposed an embargo earlier, it would have led to fewer arms being available in the country, making attacks less effective.
In addition to establishing an arms embargo, international actors should have sent a clear condemnation of genocidal government and that they would stop aid if further violence occurred. The Rwandan regime was heavily dependent on aid and the government could not operate for long without it. If the international community announced that direct foreign assistance would be denied, it would have further called into question the legitimacy of the government and its long-term viability. This might have made it harder for the génocidaires to persuade Hutu elite and Rwandans to go along with their plans and follow their directives.

In some cases, the international community must also be willing to use force to end the killing. At the beginning of the crisis, the UN peacekeepers did not have the mandate or the personnel required for effective action. If the mandate had been broadened to allow for offensive action and had the peacekeepers received support from international troops, such as the French, Belgian, and Italian troops that were sent to evacuate their citizens, the combined forces could have saved the lives of many people and limited the number of civilians killed.

Critical reflection

In remembering the Rwandan Genocide, the international community must recommit to preventing and protecting human rights and the victims of mass atrocities. Although some of the results since Rwanda have been encouraging, such as the eventual NATO intervention in the Balkans, British troops in Sierra Leone, UN peacekeeping and French-led European troops in the Congo, the international community must continue to learn and become more effective in responding to violence. The international community must show that the pleas and concerns coming from Syria and most recently the Central African Republic are not falling on deaf ears.

By |April 26th, 2015|Blog|