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Excluded from Justice? Immigration Detainees in Canada

By Petra Molnar and Stephanie J Silverman

The migrants’ rights community was rocked by two recent deaths in the Toronto area at two separate immigration detention facilities. These deaths have been shrouded in secrecy and few details have emerged other than brief biographical sketches of the deceased. What we have learned is that the first man was found unconscious and not breathing in his cell in the Toronto East Detention Centre after an apparent suicide. Guards at the Maplehurst Correctional Facility in Milton found the second man six days later in his cell with no vital signs. Both men were awaiting deportation from Canada. An official total of 14 detainees have died while in the custody of Canadian immigration officials since 2000.

By |April 4th, 2016|Blog|
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International Women’s Day: Reflecting on Human Trafficking in Canada: A Distressing Reality

By Andreina Minicozzi

March 8 is International Women’s Day, first recognized in August 1910 at the International Women’s Conference in Denmark. It was proposed by German socialists, Luise Zeits and Clara Zetkin, who sought to acknowledge women workers in America and Europe.[1] The objective of this annual event was to combat violence against vulnerable women and children and to recognize women’s struggles by forming alliances among them both domestically and internationally.[2] Today, International Women’s Day not only celebrates the actions of women throughout history, but also acts as a time of reflection.

By |March 4th, 2016|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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Beijing+20 – a gathering of the decades for the 2015 Commission on the Status of Women

By Lara Koerner Yeo

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

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

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

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

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

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

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

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

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

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

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

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

[2]    Ibid at 82-3.

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

By |May 10th, 2015|Blog|
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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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