D.T., a Christian born in Nigeria, married a Muslim. Her parents were against the marriage, and when she was pregnant, they threatened to kill the baby. After her husband died, she was forced to drink the water used to bathe his corpse and to sleep in the room with the corpse for three days. With help, she escaped and traveled to Canada where she gave birth to her son. Her son suffers from conditions, including a heart murmur, malformation of his meniscus and attention deficit hyperactivity disorder (ADHD). D.T. applied for asylum, but Canada denied her application because it found that she failed to provide materials or documentation establishing her identity and her claims. Canada dismissed her application for judicial review and ordered her to leave Canada with her seven-year-old son. To the Committee, D.T. argued that Canada’s decision violated articles 17 and 23(1) of the Covenant, that her son is also the victim of a violation of article 24(1), and that they face a risk of irreparable harm if deported to Nigeria, which has education and health care facilities inadequate to meet her son’s needs. Further, if her son remained in Canada as a citizen, it would result in family separation from his sole caregiver. The Committee concluded that given that there was no evidence that that the child had any alternative adult support network in Canada, it was foreseeable that D.T. would take her son to Nigeria. Therefore, Canada did not adequately explain why its legitimate objective in upholding its immigration policy should have outweighed the best interests of the D.T.’s child nor how that objective could justify the degree of hardship that confronted the family because of the decision to deport the mother. Acting under article 5(4) of the Optional Protocol, the Committee found the removal resulted in arbitrary interference with the right to family life in breach of article 17(1) and article 23(1) of the covenant with respect to D.T. and her son, and that it violated article 24 due to a failure to provide her son with the necessary measures of protection owed to him by Canada. Canada was ordered to provide D.T. with an effective re-evaluation of her claims, based on an assessment of the best interests of the child, including his health and educational needs, and to provide her with adequate compensation. The Committee stated that Canada also is under an obligation to avoid similar violations in the future and to publish the Views and have them widely disseminated in Canada in French and English.
Women and Justice: Jurisdiction
Andrew Scott Darrach was accused of sexually assault and “attempted to introduce evidence of the complainant’s sexual history” at trial as part of his defense. After the voir dire process, required under the Criminal Code of Canada, the trial judge refused to allow the introduction of evidence on the plaintiff’s sexual history. Darrach was convicted of the assault. Darrach appealed on the basis that the refusal impeded his right to fair trial. The Supreme Court determined that the trial judge had followed the Criminal Code provisions appropriately, dismissing Darrach’s appeal, and noted that forcing the complainant to testify on such history at trial would likely discourage individuals from reporting sexual crimes and also invade the privacy of victims.
Three female Safeway employees filed a complaint with the Manitoba Human Rights Commission stating that the company plan discriminated based on sex and family status by denying benefits for loss of pay due to accident or sickness during a 17-week period during pregnancy (even if the accident or sickness at issue was unrelated to the pregnancy). The Commission’s adjudicator dismissed the claims, and this decision was upheld by the Court of the Queen’s Bench and the Court of Appeal. The Supreme Court of Canada decided that Safeway’s plan did discriminate against pregnant women. Noting that “it cannot be said that discrimination is not proven unless all members of a particular class are equally affected,” the Supreme Court of Canada determined Safeway discriminated against the employees on the basis of sex under the Manitoba Human Rights Act.
Three women challenged three Canadian Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities. Section 210, which prohibited the operation of common “bawdy-houses,” prevented prostitutes from offering their services out of fixed indoor locations such as brothels. Section 212, which prohibited “living off the avails” of prostitution, prevented anyone, including “pimps,” from profiting from another’s prostitution. Section 213, which prohibited “communicating” for the purpose of prostitution in public, prevented prostitutes from offering their services in public, particularly on the streets. On December 20, 2013, the Supreme Court of Canada unanimously decided that all three laws were unconstitutional, reasoning that the laws infringe on sex worker’s rights under the Canadian Charter of Rights and Freedoms by depriving them of “security of the person” in a way that is not in accordance with the “principles of fundamental justice.” Starting from the position that prostitution is legal in Canada, the Court declared that the three laws: “Do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.”
Lavallee, a battered woman, killed her abusive partner after an argument in which he threatened her life. Lavallee utilized the expert testimony of a psychiatrist who testified in her defense regarding battered woman syndrome. Lavallee was ultimately acquitted. The Manitoba Court of Appeal overturned the acquittal, and the Supreme Court of Canada considered whether the expert testimony of the psychiatrist should have come before the court and whether the judge’s instructions on said testimony were appropriate. The Supreme Court held that the testimony was admissible “where the expert has relevant knowledge or experience beyond that of the lay person,” as in the case of battered woman syndrome, and where the testimony is relevant to understanding the “reasonableness” of the defendant’s perspective.
In both cases, female employees sought accommodation from their employers to attend to their childcare responsibilities. In both cases, the employers refused the employees’ requests and forced the employees to either accept part-time work or an unpaid leave to care for their children. The human rights tribunal in Hoyt and the Federal Court in Johnstone found that the employees had been discriminated against on the basis of family status when they were denied full-time employment status. The employers failed to show that they would have suffered undue hardship by adjusting the female employees’ work schedules.
Mohammad Shafia, his second wife, and his son were convicted of the June 2009 murders of his three teenaged daughters and his first wife. Their bodies were found submerged inside a car in a canal near Kingston, Ontario. The Shafia family was originally from Kabul, Afghanistan, fled to Dubai before moving to Australia, and then finally moving to Montreal, Canada in 2007. The three defendants were found guilty of four counts of first degree murder and each sentenced to life in prison with parole eligibility in 25 years. The prosecutor argued that the murders were honor killings – because the three Shafia daughters had shamed the family by adopting Western lifestyles and the two older daughters had boyfriends, and because his first wife wanted a divorce and supported the three girls in their pursuit of western lifestyles. The Crown sought to admit expert trial testimony relating to the relationship between culture, religion, patriarchy and violence against women in the Middle East, Eastern Asia and around the world, specifically as to honor killing. The Ontario Superior Court of Justice held the topic of honor killing was properly the subject of expert opinion evidence, finding the presentation of expert evidence respecting culture to be routinely admitted in Canadian trial courts and the concepts of honor, family and gender dynamics within Middle Eastern and East Asian communities to be knowledge outside the scope of a typical Canadian jury. Specific questions to the expert mirroring the facts of the case were not allowed; only generic questions relating to circumstances where honor killings might take place were allowed.
This case concerns an application for review of a decision made by the Immigration and Refugee Board, which had determined a family applying for protection, a mother and two minor children, did not have a “well-founded fear of persecution” and were not persons in need of protection. The family expressed fear of domestic violence upon a return to Mexico. During appeal, the Federal Court held that the Immigration and Refugee Board was in error “when it determined that state protection was available to the minor Applicants in Mexico.” The Court noted that the children’s individual circumstances and fear were not properly assessed and ought to have been taken into consideration by the Board: specifically, “[t]he evidence adduced with respect to the situation of each individual child should have triggered separate analyses of risk.” Furthermore, the Court noted that the Board should have considered “the ability of the Mexican state to protect these children” as individuals. The application for review was allowed to proceed.
This case concerns a decision of the Refugee Protection Division of the Immigration and Refugee Board. In response to an application for protection by Ms. Corneau, who sought protection from domestic violence perpetrated by her partner in Saint Lucia, the Board held that authorities in Saint Lucia were “capable of providing the applicant with adequate protection.” The applicant sought review of this determination. The Federal Court held that the Board’s finding was unreasonable, noting that “[t]he good intentions of a state to protect its citizens do not constitute state protection where in practice protection does not exist.” The Court stated that the Board failed to give adequate weight to contrary evidence and further noted that applicants for state protection are “not required to seek protection or assistance from non-governmental organizations or administrative agencies in order to rebut the presumption of state protection.”
The parties, Polish immigrants, divorced in Canada after approximately 25 years of marriage. The wife had a seventh grade education and no special skills or training. During the marriage, in addition to caring for their 3 children and the house, she worked evenings cleaning offices. After the separation, she was awarded custody of the children and received $150 per month spousal and child support and continued to work cleaning offices. The husband remarried in 1984 and continued to pay support to his former wife. She was laid off in 1987 and, as a result of an application to vary, her spousal and child support was increased to $400. She was later able to secure part-time and intermittent cleaning work. In 1989, the husband was granted an order terminating support. The trial judge found that the former wife had had time to become financially independent and that her husband had supported her as long as he could be required to do. The Court of Appeal set aside the judgment and ordered spousal support in the amount of $150 per month for an indefinite period. The matter was appealed to the Supreme Court of Canada to determine whether the wife was entitled to ongoing support for an indefinite period of time or whether spousal support should be terminated. The Supreme Court of Canada determined that spousal support should continue and that termination of spousal support, pursuant to sec. 17 of the Divorce Act, should consider the recipient’s disadvantaged economic status as a result of the marriage breakdown both at the time of breakdown and as it may continue, rather than a simple “sink or swim” policy premised on the wife’s having had sufficient time to become self-sufficient. This decision has provided considerable protection from impoverishment for recently divorced women.
Prior to this case, a woman had to get the approval from the therapeutic abortion committee of an approved hospital before she could get an abortion in Canada. Abortions performed without this approval were illegal. Three doctors, including Dr. Morgentaler, set up a clinic to perform abortions for women who did not have the necessary approval and the doctors were criminally charged. They argued that the abortion laws violated a woman’s right to security of the person. The Supreme Court of Canada decided that the Criminal Code’s restrictions on abortion were unconstitutional because they increased health risks to women, depriving them of the right to security of the person. Since this decision, no abortion laws have been enacted. Therefore, this decision has had the practical effect of giving women the freedom of choice.
The accused engaged in increasingly inappropriate sexual behavior toward the 17 year old complainant whom he was interviewing for a job. The teenager reported feeling afraid and stated that she repeated “no” at each advance. Despite the teen’s refusals, the accused continued to touch the complainant. The trial court acquitted the accused of sexual assault charges based on implied consent and the acquittal was upheld in the Court of Appeal. An appeal to the Supreme Court of Canada followed, in which the Supreme Court considered whether the trial court judge (1) erred with regard to his conception of consent and (2) whether the defense of “implied consent” was appropriate to this case. The Supreme Court of Canada found that the accused’s behavior did constitute sexual assault and noted that the trial judge erred in the determination that the teenager implicitly consented, stating, “the question of implied consent should not have arisen.” Specifically, the Supreme Court of Canada determined that the trial court had relied on stereotypes about women, including the problematic idea that women are “in a state of constant consent to sexual activity,” and asserted that these stereotypes “no longer find a place in Canadian law.”
The appellant waitresses had been harassed while working at Pharos Restaurant, a restaurant owned by Platy Enterprises Ltd. Multiple waitresses endured sexual harassment from the same employee. In each individual incident, the waitresses resisted the conduct and one waitress spoke to management. While the harassment stopped, the offending employee continued to behave in an “unpleasant manner.” An adjudicator for the Manitoba Human Rights Commission awarded damages to the victims of sexual harassment and found that they had been “victims of sex discrimination contrary to s. 6(1) of the Human Rights Act. The Court of the Queen’s Bench upheld the decision, but the Court of Appeal later reversed. The Supreme Court of Canada held that the lower court “should not have reduced the amount of damages given to the appellants” given the severity of the sex discrimination experienced by the employees.
After having her first child in China in 1984, Cheung had three abortions and moved to a new province in 1986 to avoid problems with local authorities on the basis of China’s one-child policy. Cheung had another child in that province. Cheung moved to Canada, knowing that she would be sterilized if she returned to China. The Immigration and Refugee Board determined that Cheung and her daughter did not have the “well-founded fear of persecution” necessary for Convention refugee status, and Cheung appealed. The Court determined that forced sterilization “is such an extreme violation of basic human rights as to be persecutory,” and determined that Cheung did in fact have the “well-founded fear of persecution” necessary for refugee status. Furthermore, the Court determined that Cheung’s young daughter also qualified for refugee status because she would have been denied appropriate medical care and other necessities if she returned to China.
This appeal involved the interpretation of “consent” under the sexual assault provisions of the Criminal Code of Canada. The Supreme Court of Canada in its seminal decision in 1999 in R. v. Ewanchuk unanimously confirmed that consent to sexual activity must be active, voluntary and revocable, meaning that a woman can say “no” at any time. Further, the Supreme Court in Ewanchuk held that consent cannot be implied, whether from a complainant’s dress or the fact that she said “yes” on an earlier occasion. R. v. J.A. involved a woman who reported that she was sexually assaulted by her common-law spouse where the accused strangled the complainant into unconsciousness. When the complainant awoke, she found herself bound and being anally penetrated. The accused argued that the complainant consented “in advance” to the strangulation and anal penetration that took place while she was unconscious. In its judgment, the Supreme Court held that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…, requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy the requirement.”
This case concerned the issue of child support and the entitlement of recipient spouses, predominantly mothers, to increased child support following an increase in the income of payer spouses, who are predominantly fathers. The Supreme Court of Canada ruled unanimously that ex-spouses could face significant retroactive child support payments if they failed to declare their increased earnings.
The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. The materials in question, consisting of audiovisual material and written stories, depicted acts of violence perpetrated against women by men. Although no explicit sexual act was depicted in the audiovisual material, the images included depictions of nude women with their genitalia exposed and with weapons protruding from their bodies. The written stories, however, depicted explicit sex and violence. The trial judge imposed a $100,000 fine and a period of probation, during which the appellant was prohibited from accessing the internet or residing in any place where internet access was provided. The appellant appealed both his convictions and sentence. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine.
Ms. Joseph is a citizen of Grenada who fled to Canada in order to escape a violent common law relationship she had been involved in for 15 years. During Ms. Joseph’s relationship with her common law spouse, she tried to leave him several times; however, he always found her and the abuse would continue. She applied for protection in Canada pursuant to the Gender-Related Guidelines of the Immigration and Refugee Protection Act, which aids determination of the risk facing women who are fleeing gender-specific persecution. Ms. Joseph based her claim on the ground that there is a substantial risk that she would face torture and cruel and unusual treatment at the hands of her former common law spouse, and there is more than a mere possibility that she would face gender-based persecution, if forced to return to Grenada. Despite the fact that the officer reviewing Ms. Joseph's application found her testimony and evidence to be credible, her application for protection was denied on the ground that she had failed to rebut the presumption of state protection in Grenada. When Ms. Joseph was informed that removal arrangements had been made, she brought a motion for a stay of removal, which was granted. The court ordered that Ms. Joseph’s application for judicial review be allowed, due to “discrepancies in logic” regarding the officer’s estimation of her evidence and his decision on her application, and remitted the matter to a different state officer for redetermination of her application for protection.
Ms. Chu is a citizen of China who was smuggled into Canada as a minor, arrested by Citizenship and Immigration Canada while she was being smuggled into the United States, and subsequently detained for eight months. Ms. Chu filed a refugee claim with the Immigration and Refugee Board, which was rejected. In rejecting her claim, however, the Board accepted that Ms. Chu was a member of a social group comprising rural young women from China, and that as such, Ms. Chu was a “very vulnerable member of society.” Ms. Chu then submitted an application for permanent resident status on humanitarian and compassionate grounds, in light of the international laws regarding the trafficking of women. After complying with a request to provide updated information about her case, Ms. Chu received word that her application had been refused on the grounds that she had not shown sufficient establishment in Canada to suggest that she would suffer undue hardship if required to leave and apply for a visa in the regular manner. Ms. Chu challenged this decision by applying for judicial review of her application, alleging that the officer who made the original decision had failed to consider all of the evidence submitted in her case. The judge dismissed Ms. Chu’s application for judicial review, holding that the officer had not made any reviewable error because Ms. Chu had not successfully demonstrated that the officer ignored any evidence.
Ms. Streanga is a citizen of Romania who was smuggled to Canada by a sex trafficking ring. After escaping from her traffickers, Ms. Streanga submitted an application for protection. Her application was denied, the deciding officer concluding that since the Romanian government had “taken serious measures” to punish those responsible for trafficking, state protection would be available to Ms. Streanga upon her return. Ms. Streanga made a motion for an order staying her removal until such time as her Application for Leave and for Judicial Review of her application could be decided. On hearing the motion, the judge found that the public pronouncements and public awareness cited by the officer, as well as services for women who have already been victimized, did not amount to state protection. The judge also found that Ms. Streanga would likely suffer irreparable harm if deported to Romania. Further, the judge found reviewable error in that the officer had applied the wrong legal test to determine state protection, and that in light of the evidence of the serious inadequacies of the Romanian police in combating and preventing human trafficking, the officer’s standard of review was flawed. The court granted the stay of removal until the deposition of the leave application, and provided that if leave was granted, the stay would remain until such time as the application for judicial review could be disposed of by the Court.
Ms. Erdogu, a Turkish national, fled to Canada and filed a claim for refugee protection to escape persecution for her political and religious activity in Turkey. Because she was both an ethnic and religious minority (Kurdish/Alevi), she was arrested in Turkey on a number of occasions, during which she was detained, interrogated, beaten, and sexually molested. Further, she claimed to be at risk because a violent ex-boyfriend had informed her father of the former couple’s sexual relationship, leading her father to declare his intent to kill her in order to preserve the family’s honor. Ms. Erdogu’s application was denied, and she applied for judicial review of that decision. The judge noted that the documentary evidence clearly demonstrated continuing problems with the Turkish government’s efforts to address the issue of honor killings, finding that the officer who had made the initial decision on Ms. Erdogu’s case had failed to consider such evidence. Because of the high risk of honor killing that Ms. Erdogu faced, and due to the officer’s failure to justify his denial of her initial application for protection, the judge ruled that judicial review would be allowed, and that the decision on Ms. Erdogu’s application was to be set aside and redetermined by another officer.
The complainant was raped by the accused, a distant relative, while unconscious in her home. Prior to the incident, out of kindness, the complainant had taken the accused to her home and had offered to let him stay with her. Just before the assault, the two were sitting on a bed talking, drinking, and watching television. The complainant then passed out, and she awoke to find the accused having sexual intercourse with her. She pushed him off and brought suit against him for sexual assault. The trial judge found the accused guilty of sexual assault. Although there is a three-year minimum sentence for serious sexual assault, the judge took the recommendation of defense counsel and sentenced the accused to 90 days imprisonment, to be served intermittently, plus three years probation. The State appealed the sentence, arguing that it should have been in the three- to four-year range. In evaluating the appropriate application of the proportionality principle to sentences for sexual assault, the Court of Appeal reasoned that the Supreme Court had never endorsed the concept of a harmless rape or other major sexual assault. The court held that non-consensual sexual intercourse under any circumstances constituted a profound violation of a person’s dignity, equality, security of person and sexual autonomy, and that under the circumstances of the instant case, the offense should have been sentenced as a serious sexual assault. However, the court also ruled that, having regard to all relevant considerations, a downward departure from the three-year minimum sentence is justified. Finding that the original sentence was inadequate, the court granted the appeal and concluded that a fit and proper sentence would be two years imprisonment plus two years probation.
The female complainant was repeatedly touched in a progressively intimate manner by the accused, despite the fact that she clearly said “no” on each occasion. Any compliance by the complainant with the accused’s advances was done out of fear, as she believed that they were locked inside the accused’s trailer. The conversation that took place between the two in the trailer clearly demonstrated that the accused knew that the complainant was afraid and that she was an unwilling participant. The complainant filed suit against the accused for sexual assault in the Alberta Court of the Queen’s Bench. Despite the trial judge’s acceptance of the complainant’s testimony regarding her lack of consent, the judge acquitted the accused on the basis of “implied consent”; the Court of Appeal affirmed. On the issue of whether the trial judge erred in his understanding of consent in sexual assault, and on whether the defense of “implied consent” was proper, the Supreme Court of Canada held that there was error and ordered that an appeal from that decision be allowed.
Ms. Bear was charged with aggravated assault for stabbing her partner more than a dozen times in his abdomen, arms, and face, leaving him in critical condition. Ms. Bear also received serious cuts to her leg and hand in the course of the altercation. In her defense, Ms. Bear claimed that she acted in self-defense and offered expert testimony that she and the victim were caught up in a cycle of violence commonly referred to as “battered woman syndrome.” Both parties were intoxicated at the time of the incident, and Ms. Bear testified that her partner was blocking the only exit. Ms. Bear had a history of assault, but she also had a history of involving herself in violent relationships. The trial judge accepted the theory of “battered woman syndrome” and found Ms. Bear not guilty on the charge of aggravated assault, holding that she had clearly acted in self-defense and that the lethality of her actions was not unreasonable given her situation.
The Supreme Court of Canada upheld a recently enacted rape shield law. Mills, a defendant in a rape case, challenged the law, arguing it violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court found that the law gave sufficient discrepancy to judges to ensure that the rights of a defendant in a rape case were not violated.