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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|
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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|
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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|
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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|
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Philippe Kirsch Institute Event to Launch its International Criminal Law Certificate

On October 2nd, our friends at the Philippe Kirsch Institute will be launching its online International Criminal Law (ICL) Certificate with an in-person event featuring war crimes expert Dr. Joseph Rikhof, Robert Petit and University of Ottawa Professors Jennifer Bond and Timothy Radcliffe.

Event details are as follows:

 

Date: October 2, 2015, 10am-4pm
Location: 120 University Pvt, Room 4004, 4th floor, Ottawa
Price: 

  • Regular price: $400
  • Registered charities use Promo Code CharityICL at checkout for a price of: $180
  • Students use Promo Code StudentICL at checkout for a price of: $100

Morning agenda:

10:00 a.m. – 10:05 a.m. – Welcome remarks
10:05 – 10:45 a.m. – Overview of ICL around the world in both criminal and refugee proceedings
10:45 – 11:25 a.m. – ICL in Canadian criminal law
11:25 – 12:15 p.m. – The link between international criminal law and refugee law

Lunch – 12:15 – 1:00pm

Afternoon agenda:

1:00 – 1:45 p.m. – Recap of morning session and Q&A
1:45 – 3:50 p.m. – Interactive session

  • 1:45 – 1:55 p.m.

o   Regroup participants in teams of 3-4 people
o   Handout of short scenario (incorporating all three topics of morning lectures)
o   Assign roles (such as prosecutor and defence counsel) and explain assignment

  • 1:55 – 2:25 p.m. – Break for teams to discuss
  • 2:25 p.m. – 3:45 p.m. – Discussion moderated by Diana with engaged discussion with the panelists.

3:45 p.m. – 4:00 p.m – Closing remarks

You can learn more about the event and the ICL Certificate at http://www.kirschinstitute.ca.

 

By |September 29th, 2015|Blog|
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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|
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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|
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The International Law of State Immunity and Torture

The International Law of State Immunity and Torture

by Parinaz Lak

Abstract

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|
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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.

Realization

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|
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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|
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