R. v. Jarvis: Cyberviolence against women – can criminal law respond?

Wednesday, February 10, 2016

R. v. Jarvis:  Cyberviolence against women – can criminal law respond?
By Carissima Mathen and Jane Bailey

In 2011, Ryan Jarvis, a London Ontario high school teacher, used a pen camera to surreptitiously record brief videos of students engaged in various activities around the school without their permission.  After reports from another teacher, the school principal personally witnessed Jarvis recording two female students, and demanded that he turn over the camera.  Police analysis of the device revealed 17 active videos, 2 videos which had been deleted but subsequently recovered and other videos that were not recoverable.  Of the 30 individuals depicted in the videos, 27 were female students; five of the images focused specifically on their breasts.  Some days later, police searched Jarvis’ home and found that most of the files on a hard drive located in Jarvis’ room had been placed there after the pen camera was seized.

Jarvis was charged with one count of voyeurism under s. 162(1) of the Criminal Code.  A trial was conducted on the basis of an agreed statement of facts, with no live witnesses.  In November 2015, despite describing Jarvis’ behaviour as “morally repugnant and professionally objectionable”, the trial judge, Goodman J., acquitted him.   The acquittal has attracted strong criticism from one of the young women who was recorded, as well as from the London Sexual Assault Centre and Western University’s Centre of Research and Education on Violence Against Women and Children.

R. v. Jarvis joins a long list of cases that raise serious questions about the ability of the criminal law to meaningfully address sexual offences against women.  To be sure, we were heartened by the trial judge’s carefully reasoned conclusion that the privacy rights of the students targeted had been violated despite the fact that the photographs were taken in a public place.  Goodman J. correctly recognized the fundamental difference between moving through a public space like a school (regardless of whether the school employs stationary surveillance cameras) and being singled out for surreptitious recordings by a trusted authority figure.  Nonetheless, he interpreted the voyeurism offence unduly narrowly.  Furthermore, even if his legal interpretation was correct, his treatment of the evidence was very concerning.

What is the crime of voyeurism about?
Section 162(1) defines voyeurism as secretly observing or recording someone in circumstances that give rise to a reasonable expectation of privacy where (a) the person is in a place (such as her home) where she might reasonably be nude, have exposed genitals, or be engaged in sex; (b) the person is actually in one of those three states; or (c) the observation or recording is done “for a sexual purpose.” 

Because the secret recordings in this case were of clothed young women engaged in school activities, the Crown had to prove that the recordings were made “for a sexual purpose.”  Goodman J. was not convinced of this beyond a reasonable doubt.

In analysing that conclusion it is essential, first, to note the gravamen of the voyeurism offence – what it is intended to punish, and the values that it protects.  In our view, voyeurism protects both personal privacy and a person’s right to control the exposure and use of their bodies by others.  Section 162 is, thus, an important safeguard for sexual integrity, and a way to punish wrongful objectification.   
Problems with the judge’s analysis
Turning next to the interpretative issue, it is important to understand the term “for a sexual purpose” and, in particular, “purpose”.  In criminal law, “purpose” can describe more than one state of mind. It can either describe a person’s bare intention to do something, or her ulterior reason for doing it. Most criminal laws require proof only of bare intention, and “purpose” is understood in this sense (“I did it on purpose”).   Less frequently, the term may require proof of the accused’s ulterior reason (“I did the act to achieve a particular purpose”).  This latter understanding is sometimes called “specific intent”.  (Aside from mental states, “purpose” can also denote a characteristic of somethingOne could, for example, use the words “for a purpose dangerous to the public” to describe an explosive device.)

The trial judge quite properly considered other offences that use the term “for a sexual purpose”, in particular, sexual interference, invitation to sexual touching, and child pornography.  But his treatment of them was inadequate.

First, Goodman J. accepted defence counsel’s argument that voyeurism is analogous to the offences of sexual interference with, or sexual exploitation of, a young person.  Because those offences have been held to require proof of specific intent, he found, specific intent should also be required before convicting someone of voyeurism under section 162 (1) (c).

Goodman J.’s analysis failed to properly consider two points.  First, sexual interference and sexual exploitation are types of assault. Specifically, they target wrongful sexual touching between adults and young persons.  In order to avoid catching otherwise innocent contact between an adult and young person, the offences require proof of a particular, sexual mindset. In contrast, in order to convict someone of voyeurism, the Crown must first prove that the accused’s behaviour was both surreptitious and an invasion of a reasonable expectation of privacy.  Thus, even without proof of a specific sexual purpose, the accused’s actions are difficult to characterize as innocent or benign.   In our view, this lessens the need to interpret the words “for a sexual purpose” in the crime of voyeurism in the same way. 

Second, the trial judge failed to properly consider child pornography.  Though he did mention the offence, Goodman J. did not appreciate its utility in interpreting voyeurism.  This was unfortunate, because child pornography appears to be far more closely aligned with voyeurism than either sexual interference or exploitation of young persons.  Like voyeurism, child pornography is concerned with a type of wrongful exploitation, and, like voyeurism, it is not dependent upon physical contact between the accused and the victim.  The structure of child pornography is also similar to voyeurism in that it contains multiple definitions of the proscribed materials.  In particular, for audio-visual pornography, the law includes materials that depict (a) a young person engaged in explicit sexual activity or (b) the genital organs or anal area of a young person as a dominant characteristic and for a sexual purpose. 
In the first decision interpreting the offence of child pornography, R. v. Sharpe, the Supreme Court of Canada did not find the words “for a sexual purpose” to require proof of specific intent. Rather, it treated the words as a characteristic of the materials.  “For a sexual purpose”, the Court said, should be interpreted as “reasonably perceived as intended to cause sexual stimulation to some viewers.”  The Court thought this both necessary, and sufficient, to prevent the law from catching otherwise innocent depictions, such as family photos of children in a bath.

Goodman J. cited the Sharpe decision, but not its clear implication that the words “for a sexual purpose” did not require proof of specific intent.  While he appeared to accept that one can determine sexual purpose from the surrounding context, he ultimately focussed on whether Jarvis himself had had a specific, sexual intent when he made the recordings.  Because Jarvis did not testify, the trial judge said, inferences had to be drawn from circumstantial rather than direct evidence.

In concluding that the words “for a sexual purpose” require proof of specific intent, then, the judge interpreted voyeurism too narrowly. It is true that voyeurism uses the term “the recording is done for a sexual purpose” which could imply that the words refer to an accompanying state of mind.  But we think this is inconsistent with the underlying objective of the offence.   Certainly, section 162(1)(c) requires that the circumstances have a sexual context, and this can be satisfied by proof of a specific sexual mindset.  But, as with the offence of child pornography, a recording or observation should be eligible to be characterized as “sexual” without such proof. (Otherwise, it seems that many voyeurism prosecutions will fail so long as the accused declines to testify.)  A better interpretation of the “sexual purpose” element in voyeurism would look to the overall context to determine whether, in an objective sense, the activity entailed the sexual objectification of the victim.

Even if one were to accept the trial judge’s finding that the term “for a sexual purpose” requires proof of specific intent, his application of that standard to the facts was very concerning.  Goodman J. found that Jarvis could only be convicted if a sexual purpose was “the only reasonable conclusion” to be drawn from that evidence.  While Goodman J. found it was “most likely” that Jarvis had recorded images of these young women’s breasts for a sexual purpose, the judge thought that other inferences were possible (although he did not suggest any).  Based on that possibility, Goodman J. found, Jarvis was entitled to an acquittal. 

Goodman J.’s conclusion is extremely problematic. Most of the surreptitiously-taken photographs focused on young women students, and several of the photographs fixated specifically on their breasts.  In such circumstances we find it mystifying to suggest, let alone form a reasonable doubt, that the accused might have had a non-sexual purpose in making those recordings.  The Crown properly bears the heavy burden of proving each element of the offence beyond a reasonable doubt.  It does not bear the impossible burden of disproving fanciful theories that rely on speculation about the inner workings of the accused’s mind.  “Proof beyond a reasonable doubt” does not extend that far. 

Jarvis is a highly problematic decision. At a time of increasing recognition of how cyber-violence undermines the equality rights of women and girls, the case is a strong candidate for correction and clarification by a higher court.  Without such correction and clarification, decisions like this simply reaffirm the viewpoint that criminal law has no capacity to play a role in a broader strategy to end sexual violence against women and girls.  Accepting that viewpoint lets law and legal institutions off the hook far too easily.  Women and girls have a right to expect more.

Towards Equality for Indigenous Children

Sunday, February 7, 2016

Towards Equality for Indigenous Children

Jeffery Hewitt*

Heroes come in many forms. Sometimes the hero is a small boy with a lightening scar on his forehead who defeats a dark lord. Other times he is a strongman with an ‘S’ on his chest or maybe a young shepherd fighting a giant with only a slingshot. But sometimes a hero comes in the form of a confident, bespectacled Indigenous woman.

In 2007 Dr. Cindy Blackstock, for the First Nation Child and Family Caring Society along with the Assembly of First Nations, filed a human rights complaint alleging discrimination by the federal government against First Nation children on-reserves in relation to the delivery of child welfare programs. These are vulnerable Indigenous children taken away from their families. Dr. Blackstock stepped in front and called Canada out. Canada’s response was predictable. Denial. And why not? At the 2009 G20 in Pittsburgh, former Prime Minister Harper stated, “Canada has no history of colonialism.”

Denial is a deeply embedded theme in our history. Fortunately, the Canadian Human Rights Tribunal is not populated with deniers and yesterday found the federal government has discriminated against First Nation children, as alleged in this complaint. The needs of Indigenous children have not been met as a result of underfunded and inadequate child welfare services.

Canada has a long-standing practice of taking Indigenous children away from their families. In 1883, Sir John A. MacDonald infamously quipped that so long as an Indigenous child lives with his parents “he is simply a savage who can read and write.” Canada created the Indian Residential School system that oversaw the state-sponsored removal of tens of thousands of Indigenous children from their families – as though taking other peoples’ children is a hallmark of civility. Some deny any responsibility by reassuring themselves that Residential Schools are a thing of the past. Why should anyone today be responsible?

Aside from decency, recall the last Residential School closed in 1996. I teach first year law students at Osgoode Hall Law School, a number of whom were born in the 1990s. They could have a peer among them who attended Residential School. This is not history. It is ongoing. Moreover, when you are removed from your family and raised by a violent institution, starting a healthy family of your own is almost impossible, meaning the damage and intergenerational trauma is ongoing, complicated and growing. Indeed, there are more First Nation children in care now than there were at the height of Residential Schools – notwithstanding a 2008 apology from former Prime Minister that this would never happen again. It is happening. Right now.

The Tribunal acknowledges the complicated mess we are in by seeking further input from the Caring Society and the Assembly of First Nation on remedies. Will the Tribunal order remedies aimed at eradicating discrimination against First Nation children? Will it monitor their implementation to ensure progress towards substantive equality? Based on their ruling, it seems so. But is Canada ready to stop denying? The federal government’s initial agreement with the decision is a positive indicator. Yet the litmus test is in the doing, not the talking. The government’s response requires commitment and will set the tone of its relationship with Indigenous Peoples for a long time to come. The ruling has implications not only for Indigenous child welfare; a host of similar allegations of discriminatory service provision in reserve communities, relating to issues such as education, housing and access to safe drinking water, were held in abeyance by the Canadian Human Rights Commission pending the outcome of this case.

As for individual Canadians who might wonder how they may positively contribute, calling out deniers is a good start. This requires the acknowledgment that we are all responsible and can no longer in good conscience leave the burden of Canada’s discrimination to be carried on the backs of Indigenous children. We should anticipate remedies from the Tribunal that are constructed like their decision: unprecedented. The Tribunal needs to set concrete goals, establish inclusive procedures, and monitor progress towards equality.

My father was one of the Indigenous children placed in foster care as an infant in the 1940s. Amazingly, he did not pass his hurt onto my brother and me. So, it seems we don’t need to attend a school for wizards. We don’t need a flying man in a cape to save us. We don’t need to be capable of felling giants with a single stone. What we need to do is to follow Dr. Blackstock’s lead and my father’s. Let’s be brave. Together.

* General Counsel, Rama First Nation; Visiting Professor, Osgoode Hall Law School.

Impacts of Digital Communications Technologies in relation to the Missing and Murdered Indigenous Women Crisis

Wednesday, January 27, 2016

On January 30 and 31 the Native Women’s Association of Canada, the Canadian Feminist Alliance for International Action, and the Canadian Journal of Women and the Law will host a symposium at uOttawa on murders and disappearances of Indigenous girls and women.  The event will bring together Indigenous women, allies and international human rights experts to strategize on how to move forward the National Inquiry on Missing and Murdered Indigenous Women and Girls, now that the federal government has committed itself to establishing that inquiry.  In this entry I discuss the impacts of digital communications technologies on this national crisis.

While violence against women (VAW) affects a broad spectrum of women and girls in Canada, indigenous women and girls are particularly vulnerable (Canadian Women’s Foundation, 2014), resulting in more than 1100 missing and murdered indigenous women and girls in Canada (RCMP, 2014). Systemic factors such as colonialism, misogyny, and racism have been identified as root causes of the missing and murdered indigenous women crisis.  Emerging research is focusing on the role technology plays in VAW (Fairbairn et al, 2013), including research showing how digital communications technologies are used to facilitate the trafficking of indigenous women and girls (Sethi, 2007). Without simplistically blaming technology, there is a need to explore the ways that digital communications technologies interact with other factors in the complex historical, sociocultural environment that incubates the national crisis of missing and murdered Indigenous women.

In its 2015 report on missing and murdered indigenous women, CEDAW stressed the need for Canada to take all forms of violence against indigenous women seriously.  In addition to international standards and definitions of VAW that are broad enough to include acts perpetrated through technology (Fairbairn, 2015), there is increasing evidence of policy shifts toward specifically recognizing and addressing the role that technologies can and are playing (APC, 2015). These shifts have led to initiatives focused on cyber-violence and its differential impacts on women and girls from diverse communities (OCTEVAW, 2015; YWCA, 2015). More research is needed to understand the particular impacts of cyber-violence on indigenous women and girls, particularly in the following three areas.

A. Human trafficking – CEDAW (2015) recommended that Canada “pay special attention to the needs and situation of aboriginal women in prostitution” and to conduct studies to better understand and develop mechanisms to combat trafficking of aboriginal girls and women. Since the data about domestically trafficked persons is at best partial (due in no small part to the frequent characterization of the trafficking of indigenous women as an issue of sex work or prostitution (Sethi, 2007)), an understanding of the scope of the issue is sometimes gained through analysis of other statistics.  These include statistics showing that Aboriginal girls and women are over-represented in prostitution (Sethi, 2007; NWAC, 2015) and that 60% of sexually exploited youth are Aboriginal (Sethi, 2007). Developing a better understanding and a concrete action plan for addressing the ways in which indigenous girls and women are recruited into and kept in human trafficking will also require understanding the role of digital communications technology in those processes. 

Research shows that digital technologies, such as the internet, are used to facilitate human trafficking of young people in a variety of ways.  Traffickers use the internet to recruit indigenous girls, especially those in rural communities, often with promises of a job and the excitement of life in the city, but with the goal of isolating them from family and community, thus rendering them more vulnerable to being trafficked (Sethi, 2007; NWAC, 2015). Traffickers also use the internet, including social media platforms such as Craigslist and Facebook to “advertise” sexually trafficked youth (Thorn, 2015). Traffickers communicate with trafficked youth using mobile technologies and track their activities by checking these young people’s text histories and phone logs (Thorn, 2015).

Obviously, technology is but one factor interacting with a variety of root causes that render indigenous girls and women disproportionately vulnerable to human trafficking.  Sethi (2007) identifies the inter-generational impacts of colonization (including increased sexual abuse, violence, substance abuse and suicide rates), a lack of awareness and acknowledgment of sexual exploitation, poverty, isolation, racism, gangs, gaps in services and insufficient housing as root causes that must be addressed. In an increasingly technologically facilitated society, understanding the role that technology plays in relation to identified root causes of trafficking indigenous women and girls and of the crisis itself could play an important role in responding meaningfully. 

B. Impact of online pornography & child abuse imagery – Some research suggests that the widespread dissemination of “hard-core, body-punishing sex in which women are demeaned and debased” facilitated by the internet needs to be understood as a legitimator of VAW (Dines cited in NWAC, 2015).  As a prime source of information for young people, messaging on the internet can shape young people’s expectations of themselves and others, including in relation to the conflation of sex and violence. It may also facilitate desensitization and increased interest in depictions of escalating levels of violence, including child sexual abuse (Bailey, 2007). Moreover, online inculcation of youth with mainstream representations of thin, white, heterosexualized femininity can negatively affect girls’ and young women’s self esteem and sense of belonging (Steeves, 2015). Research also suggests that these same representations can also form a basis for peer-to-peer harassment online (Bailey, 2015), the consequences of which are discussed in part C below.

C. Online hate and harassment – CEDAW (2015) identified stereotyping as one of the root causes of the missing and murdered indigenous women crisis in part because stereotypes of indigenous women that depict them as “prostitutes, transients or runaways … [living] high risk lifestyles” undermine public and law enforcement willingness to treat these cases seriously. For this reason, they recommend that Canada take measures to address racism and sexism “with a view to eliminating negative stereotypes against aboriginal women” (CEDAW, 2015). Racist and misogynist stereotypes familiar in offline spaces are also reflected in online spaces, sometimes with greater vitriol that some attribute to the apparent anonymity of online spaces, as well as the “mob mentality” they can facilitate (Bailey, 2010). Moreover, sexually violent online attacks, such as rape threats, are disproportionately targeted at women (Fairbairn, 2015), and indigenous persons in Canada and internationally are targeted with extreme and hateful stereotyping and threats can lead to withdrawal from online participation and, in extreme cases, to suicide (Carson et al, 2015; Chapin, 2015). These kinds of attacks can work to undermine the self-esteem and self worth of indigenous girls and women, contributing to an environment that enhances vulnerability to trafficking and exploitation (NWAC, 2015).

In addition to interacting with other socio-cultural and historical forces in ways that expose indigenous women and girls to vulnerabilities recognized as root causes of the missing and murdered indigenous women crisis in Canada, digital technologies can also be used as tools for addressing the crisis and root causes underlying it, as well as to enhance public access to the impending inquiry.

To that end, questions that the inquiry might consider include:

(1) how are digital communications technologies being used to facilitate sexual trafficking of indigenous girls and women, to disseminate violent pornography, and to distribute online hate and harassment aimed at indigenous women and girls?

(2) how are internet service providers responding to these uses of their platforms?

(3) what further steps can be taken to diminish use of digital communications technologies for these purposes?

(4) how can digital communications technologies be harnessed for purposes of raising public awareness, education, and privacy-respectful investigation?

(5) how can the impending inquiry make use of digital communications technologies to expand access to its goals, processes and results, while respecting the dignity and integrity of families and victims, including the maintenance of the level of privacy and confidentiality they may desire in relation to their stories?

Friday, January 22, 2016

January 27th
-Lunch & Learn Workshops
13:00 - 16:00 — FTX 147

Three workshops will be held to facilitate active, engaging, and critical dialogue on mental health and the gaps in th
e current mental health campaign discourse. These workshops will be free, drop-in, and light food will be provided. Access needs available upon request.

Workshop #1: Disability and Racial Justice
- Roselyne Dougé-Charles is a fourth year student who is deeply interested in critical race theories. Disability has often been described as a form of ethnic minority or race. This workshop will refute this idea and explain the ways that race and disability may intersect but are not alike.

Workshop #2: LGBTQ Youth Mental Health
- Zac Johnstone, a third year student and the Dare to Dream Coordinator at the Ontario Centre of Excellence for Child and Youth Mental Health, is facilitating a workshop that will
focus on building positive mental health outcomes for LGBTQ+ youth. This workshop will aim to provide a closer look at the many barriers LGBTQ+ youth face, and how those barriers might be overcome through an anti-oppressive lens.

Workshop #3: Issues of Trauma and Navigating the Legal system
- Lieutenant Colonel and Honourable Randy Callan specializes in operational law, administrative law,and military justice. His presentation covers trauma issues and takes a closer look at cases of PTSD and how they are handled in the legal system, with respect to witnesses and the accused.

-Art Therapy
13:00 - 16:00 — UCU terminus and UCU Agora

Expressive therapy that uses the creative process of making art to improve a persons physical, mental, and emotional wellbeing. The process involved can help resolve issues as well as develop and manage behaviour, feelings, and manage stress. 

-Mental Health 101
18:00 - 20:00 — 116 Alex Trebek Johnson Hall (English) and UCU 215 (French)

Want to be able to better recognize when you or someone you know may need psychological help and how to get it? Come and attend this brief interactive workshop held by Initiative 1in5 for some tips and tricks! A light snack will be provided.

January 28th
-Mental Health Action Forum
11:00 - 14:00 — UCU Agora

This Forum gives students the opportunity to meet with key stakeholders of the University of Ottawa - working together to provide input, assess and share ideas and feedback around the current mental health resources on campus. In an ongoing effort to be a proactive and responsive community, the Forum will contribute to plans to work more collaboratively across the University of Ottawa around mental health and wellbeing, and to further develop policies, programs, services and informational resources at the University of Ottawa.Come to provide your voice, input and to ask questions – either for the full forum or for whatever time you can spare

-Let’s Talk About Bell Let’s Talk
18:00 - 20:00 — UCU Alumni Auditorium

This free panel brings together active student leaders, organizers, and mental health advocates who will speak to their lived experiences, including issues of stigma on campus and in our various communities. The panel will then discuss Bell Let's talk, which will allow for critical, open, dialogue on the successes and drawbacks of hashtag activism and the facilitation of these types of fundraising initiatives. PWYC donations encouraged. Access needs available upon request.

An introduction to the panelists:

Alex Neufeldt
- Alex Neufeldt is a 2nd year student at the University of Ottawa studying political science and economics. She works as a french tutor and a model. When she's not working or studying, she loves creating fashion sketches, watching or performing in musical theatre productions, skiing, and reading about political theory. As an anorexia survivor, Alex is committed to raising awareness of eating disorders, as well as advocating for improved access to treatment for people with eating disorders

- Elsa is a queer brown femme who is living with depression. When she is not fighting for life she likes to spend time making music and dancing with her friends. She is recognized within the community for her work as a musician, promoter, community organizer, and friend.

- Recently graduated, Christine is a feminist, support worker, artist, and an activist who has spent a large portion of her time advocating for her rights to accommodations as per the Ontario Human Rights Tribunal. She identifies as having post traumatic stress disorder and borderline personally disorder, she is also a survivor of incest and childhood sexual abuse. Christine believes in challenging labels and stereotypes about those with similar issues by direct confrontation with those labels and stereotypes in public settings. Christine is a big fan of coping through art and humour and tries to address the issues mentioned above with those coping strategies in mind.

Dustin Garron
-     Dustin is a third year Communication student here at the University of Ottawa. Named One of Canada’s Future Leaders by Maclean’s Magazine in 2013, Garron has been speaking on youth mental health and mental illness for the last five years. He was appointed to the Mental Health Commission of Canada in 2013 and was part of the National Faces of Mental Illness Campaign in the same year. To date he has shared his story with Depression, General Anxiety Disorder and Borderline Personality Disorder with over 20,000 students.

January 29th
-Services Fair
13:00 - 16:00 — UCU Concourse

An opportunity for students to browse around and gain knowledge about the mental health resources offered to them in the Ottawa community.

-Charity Gala
18:00 - 23:00 — 112 Tabaret Hall

The Students Against Stigma Gala will be a charity event where all proceeds raised will go towards Wabano, YSB, and sponsoring students who wish to partake in courses like ASIST training and SafeTalk, which are normally expensive on a student budget.

Student Price: $15
Community Price: $30

Dress code: Semi-formal, formal

Gala Itinerary:

6PM: Doors open
6:30PM: Buffet Dinner Served
8PM: Speaker - Chris Mihney
8:30PM: Performance
8:45PM: Dessert Served
9:00PM: Speaker: Wabano Centre for Aboriginal Health

9:30PM: Raffle Winners announced

Imminent Release of the First Nations Child Welfare Human Rights Decision

Wednesday, January 20, 2016

Jeff Hewitt *

Charles Dickens originally released A Tale of Two Cities in a weekly journal costing two pence. It was doled out as a serial from April to November 1859. After he himself was subjected to brutal child labour in a factory, Dickens offers unflattering portrayals of aristocrats, illustrating the vast socio-economic gap between the haves and have-nots. There is a strong social justice theme. Sowing and reaping is a reoccurring metaphor.

The novel is a warning.

There is a Canadian story being written right now about First Nations children, which is also about sowing and reaping. It too is a warning and illustrates the vast socio-economic gap between Aboriginal and non-Aboriginal Canadians. In this story, the Canadian Human Rights Tribunal is set to release the next chapter within days.

Until amendments in 2008 to the Canadian Human Rights Act took effect in 2010, Aboriginal Peoples in Canada did not carry the same breadth of human rights all Canadians enjoy. Since 2010, the number of complaints filed by Aboriginal Peoples has risen dramatically. One such complaint, laced with Dickensian woe, is widely viewed as precedent setting. Dr. Cindy Blackstock and the Assembly of First Nations filed a complaint alleging discrimination against Canada for underfunding First Nation child-welfare services for children on-reserves.

The seeds of this story were sown when Aboriginal children were stolen from their families and placed in residential schools in order to be ‘civilized’ – because stealing other peoples’ children is the epitome of civility. Students were denied a family environment to model love and kindness resulting in many Aboriginal families still dealing with the multi-generational effects. The Truth and Reconciliation Commission of Canada’s final report tells us that at residential schools, studies were too often secondary to violence, unpaid labour and brutal living conditions under the rule of a well-resourced state. Sound familiar?

To appease the stirring masses, Canada offered an apology to residential school students in 2008 – apparently the sort where you cross your fingers behind your back so it doesn’t really count. Simultaneously, the state continues to take vast numbers of First Nation children from reserves and place them in an under-funded child welfare program.

And now comes the reaping. Given the evidence of the complaint, the Tribunal should find discrimination. As such, attention should be paid to creating systemic remedies for a systemic problem. There is a lot to be done here that could potentially narrow the socio-economic gap. Consider Aboriginal child welfare laws, such as those presented to the Tribunal by Elder Robert Joseph. Such laws should be accessed in structuring remedies that centrally place Aboriginal Peoples as the solution, not the problem. The Tribunal should advance the federal government’s commitment to renew a nation-to-nation relationship with Aboriginal Peoples by ordering time-sensitive, Kelowna-style roundtable negotiations. These negotiations should include Elders, Aboriginal and non-Aboriginal child-welfare experts, representatives from impacted Aboriginal families and key government decision-makers prepared to commit real resources. The objective would be to create culturally relevant child welfare programs that heal the ongoing hurt and restore healthy Aboriginal families, thereby reducing the flow of Aboriginal children into child welfare in the first instance.

Canada has not been kind to Aboriginal Peoples but this legacy does not have to continue. Indeed, it cannot. Sydney Carton was a cynical lawyer in A Tale of Two Cities, who ultimately overcame his thorny troubles and became a selfless hero. Like Sydney, perhaps the Tribunal may confront Canada’s past of using Canadian law against Aboriginal Peoples by showcasing the potential equalizing power of human rights. In so doing, the Tribunal might transform this story from one of warning to another of Dickens’ themes: redemption.

For today though, we are left to wonder. Will the Tribunal find discrimination? Will the remedies set a strong precedent worthy of Canada’s human rights record? Will the decision be worth two pence? We shall soon see. 

*Jeffery Hewitt is mixed-blood Cree, in-house legal counsel for Rama First Nation and a Visiting Scholar at Osgoode Hall Law School, whose LLM thesis examined remedies in relation to Indigenous Peoples and human rights in Canada.

Cross-Post: Ottawa Police Should Adopt the ‘Philadelphia Model’ to Give Sexual Assault Victims Justice

Thursday, January 7, 2016

This post first appeared on Feminist Current.


Elizabeth Sheehy
University of Ottawa Faculty of Law 

The Ottawa Police Service’s recently announced decision to charge the man who allegedly raped, strangled, punched, and spat upon Mélodie Morin on the University of Ottawa campus last fall may reassure the public that police are responding effectively to sexual violence in our city. Should we rest easy?

In November 2015, Ottawa police told this young student that they would not be laying charges because they spoke to the alleged perpetrator and he told them it was a “misunderstanding.” After Morin went to the media and her friends started a petition to demand re-investigation, police stated publicly that they had not closed the investigation and would be continuing to investigate her report.

The man was reportedly represented by counsel through the continuing investigation that followed. We are told that he then left the country, seemingly without legal restraint. Thereafter police decided to lay charges of sexual assault against him. They warn that he will be arrested if he returns to Canada.

Despite Morin’s evident relief that her efforts produced at least some justice, her experience ought to tell us that we have a serious problem here. Rarely will women who have experienced sexual assault be able to fight the police when they decide not to pursue a sexual assault report. Further, most women cannot marshal the resources to do so successfully.

Nor should they have to. No woman reporting this crime should have to pay the kind of price Morin paid to see a proper investigation. She gave up her right to anonymity and privacy and put her name and face in the media. Doubtless she is paying a price for her public exposure — one that we should wish on no woman. Morin also lost her fall semester in her first year of university. Very few women can withstand the “second rape” — what our justice system puts them through.

We should be deeply concerned about the standard used by Ottawa police to make their initial determination that charges would not be filed. If an alleged perpetrator’s claim that the woman’s reported experience was a “misunderstanding”  is the police yardstick for whether a crime has been committed then almost none will be charged. They all offer some version of “misunderstanding”  — “She consented,” “She didn’t fight,” “I thought she consented.”

The fact that it took this long for police to reach a conclusion is also worrisome. She reported on September 25; they declined to lay charges more than a month later on November 7; they then took two additional months to determine that charges were in fact warranted. Those months allowed this man to leave the jurisdiction and left her in fear and limbo all that time. The fact that they have laid charges rings rather hollow — he is not here to answer to them.

The window provided into the state of policing sexual assault by this case tells us that major structural changes are needed if our police are to respond professionally to women’s reports. If this is what happens when a young, white university student reports allegations as serious as these, then imagine what happens when the woman is working class, disabled, homeless, or Indigenous. Or when she is reporting her husband, her boyfriend or her boss.

Nothing short of adoption of what advocates call the “Philadelphia model” — a model that requires activists from the violence against women movement to review police decisions on these files on an ongoing basis and to work in equal partnership with police to correct such egregious errors — can fix the problem we have here.

This model was adopted by Philadelphia 14 years ago in an effort to clean up a scandalous police record of sweeping women’s sexual assault reports under the rug. It has received the ongoing endorsement of both frontline women’s groups and Philadelphia police and has been credited with countless corrected investigations, an increased charge rate, interventions for serial predators, and enhanced confidence on the part of women to report sexual violence.

Ottawa women deserve no less. The problem of policing violence against women in our community is as deep and as resistant to change. Failures like the one in Morin’s case endanger us all, and Ottawa police cannot assure us that this is not commonplace. Here’s hoping Minister Naqvi will listen and respond at the provincial level with a model for policing violence against women that ensures transparency and accountability. 

Elizabeth Sheehy, LL.B., LL.M., LL.D. (Honoris causa), FRSC, is Vice Dean Research and Shirley Greenberg Chair for Women and the Legal Profession at the University of Ottawa Faculty of Law. Her research record includes her most recent books: the edited collection Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (Ottawa: University of Ottawa Press, 2012)and Defending Battered Women on Trial: Lessons from the Transcripts (Vancouver: UBC Press, 2014).
Designed by Rachel Gold.