CEDAW

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

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

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

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

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

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

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

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

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

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

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

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

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

Improving Access

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

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

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

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

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

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

ID

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

By |January 10th, 2018|Blog|
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Canada in Violation of International Human Rights Law – Pressure mounts to hold national inquiry

By Lara Koerner Yeo

On Friday, 6 March 2015, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) released an unprecedented report. The report finds Canada in violation of articles 2, 3, 5, 14, and 15 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[1] The CEDAW Committee states that Canada has failed to take sufficient action to respect and protect the human rights of Aboriginal women, including their rights to life and personal security. Thus, by omission, Canada is in contravention of its obligations under the Convention to eliminate all forms of discrimination against women, including the obligation to equally protect Aboriginal women under the law and provide effective remedies when they are subject to violence.

This is the first time an international human rights expert body has found Canada to be in contravention of international human rights norms. The report has been recognized as “extremely important” for Canada, and an “embarrassment for Prime Minister Stephen Harper’s Conservative government.”

The report is the result of a summer 2013 inquiry undertaken by CEDAW members Niklas Bruun and Barbara Bailey into the situation of violence against Aboriginal women and girls in Canada. Canada gave its permission for CEDAW Committee members to investigate in spring 2013, two years after the Canadian Feminist Alliance for International Action (FAFIA) and the Native Women’s Association of Canada (NWAC) requested a CEDAW Committee inquiry into missing and murdered Aboriginal women under article 8 of the Optional Protocol to CEDAW.

For those who devote their professional lives to the advancement and domestic implementation of international human rights law, this kind of report is game changing. As Shelagh Day, a long-standing, outspoken advocate on the issue at the UN and Inter-American Commission on Human Rights writes, “for those of us who have been working on equality rights law for a long time, this decision includes analysis and findings that we have been seeking since section 15 of the Charter was introduced.” Day highlights three key ideas that the report brings to the fore: the interconnectedness and indivisibility of economic, social, cultural, political and civil rights for the practical realization of women’s human rights; systemic discrimination, including the finding that State actors and institutional mechanisms can be engaged in, and thus perpetuating, such discrimination; and that the failure of a State to act can be the violation. Such explicit recognition of these things, and their role in connection to States’ violations of women’s rights, is norm-advancing.

National Aboriginal Organizations, including NWAC and the Assembly of First Nations (AFN), have been quick to respond to the report release. Dawn Harvard of NWAC, in a joint NWAC-FAFIA press release, questions, “What more does Canada need?” The AFN affirms that the issue of violence is “a Canadian issue,” and the particular findings of the CEDAW report “cannot be ignored.” The Union of BC Indian Chiefs writes that Canada is in “DENIAL” about the efficacy and comprehensive nature of its current response to the situation of violence against Aboriginal women and girls; and both Amnesty International and Human Rights Watch responded to the release with statements critiquing Canada’s response to the report.

The responses by these Aboriginal and human rights organizations both highlight the great need for improved state response, and reflect the general sentiment of civil society in Canada today. Myriad public and private actors, policy and civil society stakeholders, call for a national inquiry into violence against Aboriginal women and girls. In a recent Angus Reid poll, almost three-quarters of Canadians supported a national inquiry.

While the CEDAW Committee report recommends that Canada launch a national inquiry, Canada rejected the three recommendations regarding a national inquiry and action plan.[2] Canada disagrees that it has violated the Convention,[3] and did not make any comment on how it would proactively change its current policy and programmatic response on the issue to better align with its human rights obligations.

The CEDAW Committee report recommendations will be the newest set of recommendations to be added to the compendium of report recommendations on the subject amassed by the Legal Strategies Coalition. The Coalition’s study, recently released in late February, found that only a few of the over 700 recommendations on improving State response to violence against Aboriginal women in Canada have been implemented by Canadian governments. The Coalition reviewed fifty eight reports, studies and inquiries and found that there is a consensus among reports on the systemic nature of the root causes of violence and a need for a national inquiry—something the CEDAW Committee report unequivocally reaffirms.

The release of the Legal Strategies Coalition report, on 26 February 2015, was followed by the national roundtable on missing and murdered Aboriginal women on, 27 February 2015. The roundtable was framed as a “beginning” – a way to start dialogue between provincial, territorial, and federal ministers, and with representatives from affected Aboriginal families. The outcome led to no substantive change on the federal government’s position vis-à-vis an inquiry—a position that unsurprisingly mirrors Canada’s response to the CEDAW Committee report.

The federal government is set to roll out its Action Plan to Address Family Violence and Violent Crimes Against Aboriginal Women and Girls on 1 Apr 2015. Of concern, however, is how federal leadership continues to frame the issue and response initiatives. Amnesty International Canada has characterized Federal Status of Women Minister Kellie Leitch’s framing of aspects of the issue, such as the perpetrators of violence, as “incorrect and dangerous.” The Action Plan—something that bears no evidence of being comprehensive and national in scope, but instead a plan that maintains a “piecemeal and fragmentary” status quo—does not heed the recent Inter-American Commission on Human Rights, Legal Strategies Coalition and CEDAW Committee report recommendations for a comprehensive national inquiry and/or a national action plan.

Advocates maintain that the February 2015 roundtable, Action Plan, and decision to hold another roundtable before the end of 2016, do not lessen the need for an inquiry. There is no question that Canadian governments are taking action, Ontario serving as an example; however, in light of the current findings by the CEDAW Committee, there is legitimate cause to question the adequacy of regional responses, rather than a comprehensive, national inquiry and/or action plan. The federal government remains opposed to such national action—a stance in perpetual opposition to the provinces, territories, key Aboriginal and non-Aboriginal civil society stakeholders, and international and regional human rights expert bodies.

[1] Committee on the Elimination of Discrimination against Women, Report of the inquiry concerning anada of the Committee of the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination, CEDAW/C/OP.8/CAN/1, 6 March 2015, at para 211, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_1_7643_E.pdf>.

[2] 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 122, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_2_7644_E.pdf>.

[3] Ibid at para 6.

Lara Koerner Yeo is a first year student at the University of Toronto, Faculty of Law. She was a research assistant in the women’s rights division of Human Rights Watch and worked on the report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada.” She currently works with the Canadian Feminist Alliance for International Action.

By |March 31st, 2015|Blog|
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Missing and Murdered Aboriginal Women and Girls: A Documented Human Rights Issue in Canada

By Lara Koerner Yeo

Aboriginal women and girls are disproportionately impacted by violence in Canada. They are more susceptible to disappearance and homicide than non-Aboriginal women and girls, and some reports indicate that police are less efficient in responding to the crimes that victimize them.[1]

Violence against Aboriginal women and girls, as well as the lack of police action in effectively addressing these issues, is well documented by international human rights bodies. Numerous United Nations treaty bodies, including the Human Rights Committee (HRC),[2] the Committee on the Rights of the Child,[3] the Committee on the Elimination of Racial Discrimination,[4] the Committee on the Elimination of Violence against Women (CEDAW),[5] and the Committee Against Torture,[6] have issued reports recommending that Canada improve its response to racialized and sexualized violence against Aboriginal women and girls. In addition to the core human rights treaties monitored by these committees, there are a number of human rights instruments used to reinforce a normative framework, which imposes a positive obligation on Canada to address the issue of violence against women.[7] Canada is thus obliged by international law to “exercise due diligence to prevent, investigate, prosecute, and punish acts of violence against women and girls.”[8] These documents provide further guidance on how to interpret and implement treaty standards to better realize women’s right to security and bodily integrity.

Aboriginal and women’s organizations in Canada, among other human rights and social justice organizations, have been advocating for improved State and police response to violence against Aboriginal women and girls for over a decade. The Native Women’s Association of Canada (NWAC) and the Canadian Feminist Alliance for International Action (FAFIA) have advocated before UN treaty bodies for seven years on this issue.[9] They have also initiated and participated in two thematic briefings on this issue in 2012 and 2013, at the Inter-American Commission on Human Rights (IACHR).[10] As a member of the Organization of American States, Canada has agreed to respect and protect the rights set out in the American Declaration of the Rights and Duties of Man and respond to any rights violations under the Declaration.

In 2013, IACHR Commissioners, and the CEDAW Committee, both visited Canada to investigate the issue of violence against Aboriginal women and girls. The IACHR released a groundbreaking report on January 12, 2015, which was the first report by an expert human rights body to address the issue of missing and murdered Aboriginal women.[11] The report pointed “to Canada’s history of colonization, long standing inequality, and economic and social marginalization as the root causes of violence against Indigenous women.”[12] The CEDAW report is forthcoming.

Canada will be reviewed by the HRC, the Committee on Economic, Social and Cultural Rights, and CEDAW in 2015 through 2017. The reviews will focus on years 2006 to 2014. The upcoming reports and concluding observations flowing from these reviews are expected to be instructive and include the issue of violence against Aboriginal women and girls.

What do domestic stakeholders say?

There is an overwhelming call for a national public inquiry into the violence against Aboriginal women and girls. Many public stakeholders — such as Premiers, the Federal Ombudsman for Victims of Crime, the Canadian Human Rights Commission, National Aboriginal Organizations, and other social justice and human rights organizations— have called for a national inquiry. Domestic stakeholders are in agreement with the former UN Special Rapporteur on Indigenous Peoples, James Anaya, who also called on Canada to conduct an inquiry.

Many organizations have also advanced the need for a national action plan to complement the findings and recommendations of an inquiry. The creation of National Action Plans on Violence Against Women by UN member states by 2015 is one of the five key goals of the UN Secretary General’s UNiTE to End Violence against Women campaign. While the Canadian government has recently established an Action Plan to Address Family Violence and Violent Crimes Against Aboriginal Women, this plan does not serve as a comprehensive national-level plan.[13] The IACHR report echoes the call of advocates by strongly supporting the creation of a national-level action plan or inquiry.[14]

What is the government response?

The federal government stands by its 2014 Action Plan, and other related initiatives, such as: the special parliamentary report on the issue; the spring 2014 Royal Canadian Mounted Police report; and the on-going Civilian Review and Complaints Commission for the RCMP public interest investigation into allegations of police abuse in northern British Columbia.

Stakeholders hope that the February national roundtable on the issue of missing and murdered indigenous women will initiate a national dialogue; however, given the federal government’s current position, it is unclear whether or not this meeting, or subsequent ones, will result in substantial policy change. Time will tell.

Lara Koerner Yeo is a first year student at the University of Toronto, Faculty of Law. She was a research assistant in the women’s rights division of Human Rights Watch and worked on the report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada.” She currently works with the Canadian Feminist Alliance for International Action.

For more information see:

-The Native Women’s Association of Canada Sister’s in Spirit initiative: http://www.nwac.ca/programs/sis-research.

-The Human Rights Watch report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada,” for a comprehensive discussion on Canada’s human rights obligations to respond to violence against women: http://www.hrw.org/reports/2013/02/13/those-who-take-us-away (see section V. Canada’s Obligations Under International Law at 77).

-Amnesty International Canada’s Stolen Sisters report and advocacy: http://www.amnesty.ca/our-work/issues/indigenous-peoples/no-more-stolen-sisters.

-The Canadian Feminist Alliance for International Action’s Campaign of Solidarity for Aboriginal Women, for information on the NWAC and FAFIA IACHR submissions: http://www.fafia-afai.org/en/solidarity-campaign/.

-The Canadian Network of Women’s Shelters & Transition Houses report on the need for a national action plan on violence against women in Canada: http://endvaw.ca/NAPonVAW.

-The Canadian Centre for Policy Alternatives report, “Progress on Women’s Rights: Missing in Action,” https://www.policyalternatives.ca/publications/reports/progress-women%E2%80%99s-rights-missing-action (see the section on Violence Against Aboriginal Women and Girls, p 43).

To follow this issue on social media, popular hashtags include: #mmiw, #mmaw, #AmINext, #ImNotNext, #HwyofTears, #itstartswithus.

Footnotes:

[1]                      Vivian O’Donnell and Susan Wallace, “First Nations, Métis and Inuit Women,” Women in Canada: A Gender-based Statistical Report, Statistics Canada Catalogue no 89-503-X, July 2011, at 42-3, online: <http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11442-eng.htm>; Royal Canadian Mounted Police, “Missing and Murdered Aboriginal Women: A National Operational Overview,” Catalogue no PS64-115/2014E-PDF, 2014, at 3, online: <http://www.rcmp-grc.gc.ca/pubs/mmaw-faapd-eng.pdf>; and, Human Rights Watch, Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada (New York: Human Rights Watch, 2013), at 78, online: Human Rights Watch <http://www.hrw.org/sites/default/files/reports/canada0213webwcover_0.pdf> [Human Rights Watch].

[2]                      UN Human Rights Committee, “Consideration of reports submitted by states parties under article 40 of the Covenant Concluding observations of the Human Rights Committee Canada,” CCPR/C/CAN/CO/5, April 20, 2006, at para 23, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/CAN/CO/5&Lang=En>.

[3]                      UN Committee on the Rights of the Child, “Consideration of reports submitted by States parties under article 44 of the Convention Concluding Observations Canada,” CRC/C/CAN/CO/3-4, October 5, 2012, at paras 48, 49(b), online: OHCHR http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fCAN%2f3-4&Lang=en>.

[4]                      UN Committee on the Elimination of Racial Discrimination, “Consideration of reports submitted by States parties under article 9 of the Convention Concluding observations of the Committee on the Elimination of Racial Discrimination,” CERD/C/CAN/CO/19-20, March 9, 2012, at para 17(b), online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CAN/CO/19-20&Lang=En>.

[5]                      UN Committee on the Elimination of Discrimination against Women, “Concluding observation of the Committee on the Elimination of Discrimination against Women Canada,” CEDAW/C/CAN/CO/7, November 7, 2008, paras 32, 53, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/CAN/CO/7&Lang=En>.

[6]                      UN Committee against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, “Consideration of reports submitted by States parties under article 19 of the Convention Concluding observations of the Committee against Torture Canada,” CAT/C/CAN/CO/6, June 25, 2012, at para 20, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT/C/CAN/CO/6&Lang=En>.

[7]                      UN Committee on the Elimination of Discrimination against Women, “General Recommendation No. 19: Violence against women,” (Eleventh session, 1992), paras 24(a), (t), online: UN <http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19>; UN Human Rights Committee, “HRC, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties: general legal obligation on states parties to the Covenant,” U.N. Doc CCPR/C/21/Rev.1/Add 13, (Eightieth session, 2004), at para 8, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.13&Lang=en>; UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, A/HRC/7/3, January 15, 2008, at paras 30-32, online: UN <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/101/61/PDF/G0810161.pdf?OpenElement>; UN Declaration on the Elimination of Violence Against Women, December 20, 1993, GA res 48/104, 48 UN GAOR Supp (No 49) at 217, UN Doc A/48/49 (1993), Art 4(c), online: UN <http://www.un.org/documents/ga/res/48/a48r104.htm>; Fourth World Conference on Women, Report of the Fourth World Conference on Women (“Beijing Declaration and Platform for Action”), Beijing, 4-15 September 1995, A/CONF.177/20, October 17, 1995, at para 124 (b), online: UN <http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf>; see Human Rights Watch, supra note 1 at 78.

[8]                      Human Rights Watch, supra note 1 at 78.

[9]                      FAFIA, “Campaign of Solidarity with Aboriginal Women CEDAW Inquiry,” 2014, online: FAFIA <http://www.fafia-afai.org/en/solidarity-campaign/#reports>.

[10]                    FAFIA, “Campaign of Solidarity with Aboriginal Women, The Inter-American Commission on Human Rights,” 2014, online: FAFIA <http://www.fafia-afai.org/en/solidarity-campaign/#the-inter-american-commission-human-rights>.

[11]                    “Murders and disappearances of Indigenous women caused by inequality, marginalization – Canada must act to prevent violence: Inter-American Commission on Human Rights”, PR Newswire (12 January 2015), online: <http://www.prnewswire.com/news-releases/murders-and-disappearances-of-indigenous-women-caused-by-inequality-marginalization—canada-must-act-to-prevent-violence-inter-american-commission-on-human-rights-288271071.html>.

[12]                    Ibid.

[13]                    Inter-American Commission on Human Rights, Missing and Murdered Indigenous Women in British Columbia, Canada, OEA/Ser.L/V/II, Doc 30/14, 21 December 2014, at paras 295-7, online: OAS <http://www.oas.org/en/iachr/reports/pdfs/Indigenous-Women-BC-Canada-en.pdf>.

[14]                    Ibid at para 309.

By |March 5th, 2015|Blog|
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