Réforme féministe du droit/Feminist Law Reform course - update

Saturday, August 27, 2016

Prof. Martha Jackman is offering an exciting course in feminist law reform, open to English or French Common law students. The course is now open to students who wish to AUDIT the course, as well as those who wish to enroll for credit. Please contact Prof. Jackman at: mjackman@uottawa.ca.

Réforme féministe du droit/Feminist Law Reform course

Tuesday, July 26, 2016

Below you will find the syllabus for Prof. Martha Jackman's exciting feminist law reform/Réforme féministe du droit course at the University of Ottawa Faculty of Law. Interested students should sign up!

Études intensives: Thème choisi en droit - Réforme féministe du droit (CML4914)
Automne 2016
______________________________________________________________________________
PROFESSEURE :                              Martha Jackman (FTX383)
Téléphone/courriel :                           613-562-5800 poste 3299; mjackman@uottawa.ca
Horaire et salle de cours :                 mercredi 17 h 30 à 20 h 30; FTX 102
______________________________________________________________________________

DESCRIPTION DE COURS :

La réforme du droit fait partie intégrante de la lutte pour l’égalité des femmes au Canada. Ce cours séminaire bilingue (avec conférencier(e) invité(e)s et quelques visites hors campus) offrira aux étudiant(e)s l’occasion de développer des connaissances et habiletés nécessaires pour la poursuite de stratégies systémiques de réforme du droit au niveau fédéral. Profitant de l’expertise de juristes féministes et d’autres personnes activement impliquées dans le processus de réforme du droit fédéral, les sujets de discussion et d’apprentissage comprendront : l’accès à l’information et la recherche; représentations et comparutions devant des comités parlementaires; lobbying; campagnes médiatiques et de relations publiques; éducation juridique populaire; liaison communautaire; sensibilisation et autres outils et pistes clés pour la défense de la réforme féministe du droit. (3 crédits)

EXIGENCE PRÉALABLE :

Droit constitutionnel I ou un cours équivalent portant sur la Charte canadienne des droits et libertés. Ce cours et bilingue. Les étudiant(e)s doivent posséder une bonne compréhension (passive) des deux langues officielles.  La professeure changera de langue chaque semaine et les conférencier(e)s invité(e)s feront leurs présentations soit en anglais, soit en français. Les étudiant(e)s peuvent employer la langue de leur choix en classe. Les étudiant(e)s du programme français devront cependant faire leur présentation orale et rédiger leur travail écrit en français.

DOCUMENTATION :

Matériel de cours en version électronique disponible sur le site Web de la professeure.

MÉTHODE D’ÉVALUATION :

La méthode d’évaluation comporte cinq volets :
1) la préparation et la présence en classe (10 % de la note finale);
2) une lettre à la rédaction, d’au plus 200 mots, remis avant 16h le 7 décembre (5 % de la note finale);
3) un commentaire à la rédaction, d’au plus 700 mots, remis avant 16h le 7 décembre (15 % de la note finale);
4) une lettre à un ministre/au premier ministre, d’au plus 200 mots, remis avant 16h le 7 décembre avril (5% de la note finale); et
5) un mémoire écrit, d’au plus 3 000 mots (5,000 mots pour répondre à l’exigence du mémoire de recherche), portant sur un sujet d’intérêt personnel dans le domaine de la réforme féministe du droit, remis avant 16h le 22 décembre (65 % de la note finale.)


Intensive Study: Select Legal Issues - Feminist Law Reform (CML4914)
Fall 2016
______________________________________________________________________________
PROFESSOR :                                  Martha Jackman (FTX 383)
Telephone/e-mail :                             613-562-5800 ext. 3299; mjackman@uottawa.ca
Class schedule and location :            Wednesday 5:30 p.m. – 8:30 p.m.; FTX 102
______________________________________________________________________________

COURSE DESCRIPTION :

Law reform is an essential component of the struggle for women’s equality in Canada.  This bilingual seminar course (with guest speakers and some off-campus visits) will provide students with an opportunity to develop the knowledge and skills necessary for the pursuit of systemic legislative remedies at the federal level.  Drawing on the expertise of feminist lawyers and others actively engaged in the federal law reform process, areas of discussion and training will include: access to information and research; submissions and appearances before parliamentary committees; lobbying; media and public relations campaigns; public legal education; grassroots outreach and other key tools and avenues of feminist law reform advocacy.  (3 credits)

PREREQUISITE :

Constitutional Law I or an equivalent course on the Canadian Charter of Rights and Freedoms.  This is a bilingual course.  Students must have a good (passive) knowledge of both official languages.  The instructor will switch between languages each week and presentations by guest speakers will be in English or in French. Students may use the language of their choice in class. 

COURSE MATERIALS :

Course materials available electronically on the Professor’s faculty web-site.

METHOD OF EVALUATION :

The method of evaluation includes five components:
1) class preparation and attendance (10% of the final grade);
2) a letter to the editor, of a maximum 200 words in length, due by 4 p.m. on December 7 (5% of the final grade);
3) an op-ed, of a maximum 700 words in length, due by 4 p.m. on December 7 (15% of the final grade);
4) a letter to a minister/prime minister, of a maximum 200 words in length, due by 4 p.m. on December 7 (5% of the final grade); and

5) a written brief, of a maximum 3,000 words in length (5,000 words to fulfil the major paper requirement), on a feminist law reform topic of the student’s choice, due by 4 p.m. on December 22 (65% of the final grade). 

Reporting Order Insufficient to Stop Canada from Discriminating against First Nations Children

Tuesday, July 19, 2016


This is cross-posted from the View Point column from the May/June 2016 issue of the Human Rights Digest, with permission.

Anne Levesque

On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) released a historic decision (‘’decision’’) finding that Canada is racially discriminating against over 163,000 First Nations children and their families by providing flawed and inequitable child welfare services ("FNCFS Program") and by failing to implement Jordan's Principle to ensure equitable access to government services available to other children.1 In a subsequent order issued on April 26, 2016, the CHRT commented on Canada’s failure to take sufficient immediate action to comply with its January decision. It wrote: “[i]t is unclear why and how some of the findings [of discrimination] have not been addressed within the three months since the [January] decision. Instead of being immediate relief, some of these items may now become mid-term relief”.2

In response to this inaction, the CHRT ordered Canada to confirm that it had fully implemented Jordan’s Principle and to report on the steps it had taken to comply with its January decision. Such reporting orders are exceptional and are generally issued only in cases where the failure to promptly comply with an order may cause irreparable harm, particularly to a vulnerable group, as was the case in Doucet-Boudreau.3  Similarly, in Caring Society (No. 15), the CHRT heard and accepted evidence that Canada’s discriminatory FNCFS Program was causing First Nations children to be removed from their families and communities and put into care at alarming rates.4 It ordered Canada to immediately cease its discriminating conduct towards against First Nations children in accordance with its ruling.5

It is disappointing that in the face of these tragic circumstances and such an exceptional legal measure, Canada failed to take the immediate action necessary to lessen the discrimination experienced by First Nations children receiving child welfare services following the CHRT’s April reporting order. By way of example, the 2016 Budget allocates $71.1 million to First Nations child welfare services in 20162017, only $60.38 million of which will be directed to service delivery for children and families. By contrast, Canada’s own internal documents estimated that a minimum of $108.1 million plus an annual 3 percent increase for inflation was required (in 2012 dollars) to provide First Nations children with child welfare services comparable to those available off reserve.  The largest funding allocation in the 2016 Budget for child welfare services for First Nations children will not be conferred until 20202021 and that depends on whether the current government gets re-elected. When asked why First Nations children needed to wait five years — or a quarter of their childhood — to receive services comparable to those available to others, Prime Minister Trudeau stated that the government needed to “create the capacity” before providing additional funds to FNCFS agencies.6 Yet, none of the evidence presented before the Tribunal supports the Prime Minister’s claim that First Nations agencies do not have the capacity to deliver equal services to First Nations children. From a human rights perspective, the claim, which is akin to stating that discrimination against certain groups is acceptable because they are not, in the eyes of the party responsible for the discrimination or the public, ready for equality, is also very problematic.

Canada’s inaction with respect to the implementation of Jordan’s Principle is equally disconcerting. In its May 10, 2016, compliance report to the CHRT, Canada claimed that it had fully implemented Jordan’s Principle. Yet, Canada has failed to take the measures necessary to ensure that First Nations children not longer experience discrimination as a result of jurisdictional disputes. For example, the INAC website directs the public to contact a series of telephone numbers for Indigenous and Northern Affairs Canada (“INAC”) regarding Jordan’s Principle cases. The Caring Society called each number to test the accessibility of INAC’s Jordan’s Principle reporting system. Results revealed out of service telephone numbers, automated answering machines that did not include a Jordan’s Principle option and government officials who were not aware of Jordan’s Principle or referred the caller to a First Nations organization. Only one INAC office was able to send contact information for officials several hours after the original call.7  The results of the calls were immediately brought to INAC’s attention and the Caring Society sought confirmation from INAC that the matter has been addressed but no response has been received. This raises significant concerns regarding Canada’s compliance with the CHRT January order. More importantly, it suggests that First Nations children will continue to experience discrimination when seeking access to government services, or simply be denied those services altogether.8 This is not surprising given that the CHRT found that jurisdictional disputes caused First Nations children to be denied services available to other children due to poor or complete lack of coordination between and within governments. Such ongoing systemic and widespread discrimination cannot be remedied simply by making grandiose statements.

On June 14, 2016, faced with this continued inaction, and upon receipt of Canada’s compliance report regarding the CHRT’s findings of discrimination relating to its FNCFS Program, the CHRT cancelled an upcoming case conference it had scheduled with the parties to discuss the implementation of the January decision. In particular, it wrote:

The Panel finds there are far more unresolved issues to deal with th[a]n it had expected and is now questioning the benefit of having a meeting at this time. Therefore, the Panel proposes to use its limited resources to address as many of the outstanding issues as it can now.9

The CHRT is expected to rule upon the Caring Society’s requests for immediate relief later this year. It is unfortunate that such requests are even necessary and that Canada remains unwilling to comply voluntarily with the CHRT’s decision by ceasing its discriminatory conduct towards some of the most vulnerable members of our society, First Nations children.

Anne Levesque, B.A., LL.B., MSt (Oxon)
is proud to have been one of the lawyers who represented the
 First Nations Child and Family Caring Society of Canada in this case.
___________________
1.     First Nations Child and Family Caring Society of Canada v. Canada (Attorney General) (No. 15), 2016 CHRT 2, CHRR Doc. 16-3003 (“Caring Society (No. 15)”). When there is a dispute as to which level of government must fund a particular service, Jordan’s Principle states that the service must be immediately provided by the government that is contacted first, and that jurisdictional issues must be sorted out later. For more information on Jordan’s Principle, visit https://fncaringsociety.com/jordans-principle.
2.     First Nations Child and Family Caring Society of Canada v. Canada (Attorney General) (No. 16), 2016 CHRT 10, CHRR Doc. 16-3033, para. 21.
3.     In Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 (“Doucet-Boudreau”), the Supreme Court of Canada upheld an order of a trial judge from Nova Scotia in a language rights case to retain jurisdiction to hear reports on the status of the effort of the province to provide adequate school facilities and programs for Francophones. In so doing, the Supreme Court noted that for every school year that governments do not meet their obligations under s. 23 of the Canadian Charter of Rights and Freedoms, there was an increased likelihood of assimilation which carries the risk that numbers might cease to “warrant”, and thus extinguishing the right to school instruction in a official minority language. 
4.     Caring Society (No. 15), at para. 344.
5.     Ibid, at para. 481.
6.     APTN Interview with Prime Minister Justin Trudeau dated June 3, 2016, available at:  http://aptn.ca/news/2016/06/03/pm-trudeau-faces-wide-array-of-question-during-aptn-town-hall/.
7.     For more information about the calls, see APTN story which aired on June 21, 2016, available at http://aptn.ca/news/2016/06/21/indigenous-affairs-help-lines-dont-work-advocates-say/.
8.     On June 7, 2016, the Caring Society contacted the regional offices and numbers on the website and asked to speak to the person in charge of Jordan’s Principle cases noting that the INAC website says that persons with questions regarding Jordan’s Principle should call the regional INAC office. The object of the exercise was to ensure members of the public with Jordan’s Principle cases were able to bring them to INAC’s attention and have them addressed. The Caring Society contacted the 1-800 number listed under the Atlantic, Quebec and Manitoba Regions and the person receiving the call advised that they did not have a contact person and that they would send out a general email. The number listed for Quebec Region (1-800-263-5592) yielded a completely automated system with five options to leave messages about specific topics. None of the topics included Jordan’s Principle inquiries. The number listed for the Atlantic Region appeared to be out of order as multiple calls yielded only a tone at the end of the line. Calls to the remaining regional offices of Ontario, Saskatchewan, Alberta, and the Yukon revealed polite responses from staff but did not yield a person to speak to about the cases. The Caring Society received responses ranging from options only to leave messages on voice mail to staff saying they did not know what Jordan’s Principle was, to being referred to the First Nations Health Authority (in BC) and suggesting they leave a message for a person who would not be back in the office for several days. Ontario region did contact the Caring Society several hours after our call with the names and addresses of persons to reach.

9.     Letter from the CHRT to the parties dated June 14, 2016. 

Time to Break New Ground and Regulate Canada’s Extractive Companies Operating Abroad

Thursday, July 7, 2016


The new Trudeau government has had its hands full dealing with a number of important and pressing concerns both domestically and internationally. However, the federal government must soon turn its eye to the glaring hole in Canadian law that allows Canadian extractive companies to engage in, and profit from, human rights and environmental abuses in their overseas operations, often with impunity. Canada hosts a significant majority of the world’s largest exploration and mining companies, as well as a large number of oil and gas companies, many of which have operations in developing countries. Over the last five years an increasing number of civil cases have been launched in Canadian courts alleging egregious conduct, including murder, gang rape, forced labour, torture and complicity in war crimes, on the part of Canadian extractives, their subsidiaries and their security contractors.[1] The most well known case is Choc v Hudbay Minerals Inc., which has been attracting significant media attention over the past six months.[2] The case concerns three related civil actions initiated by indigenous Mayan plaintiffs from the Guatemalan community of El Estor. The plaintiffs allege that the security personnel employed by HudBay’s Fenix mining project shot and killed Angelica Choc’s husband, Adolfo Ich, shot and left paralyzed another plaintiff, German Chub Choc, and along with police and military, gang raped Margarita Caal Caal and 10 other Mayan women.[3] Two other cases against Canadian extractive companies are currently before British Columbia courts, one alleging complicity in forced labour and torture, and another, alleging the use of excessive force by security personnel against peaceful protesters.[4]

These cases represent only the tip of the iceberg. Complaints about the overseas conduct of Canadian extractive companies are far from rare. Individuals, groups and non-governmental organizations have also brought complaints in non-judicial fora or reported allegations of harmful conduct, including human rights violations on the part of members of Canada’s extractive sector.[5] A report commissioned in 2009 by the Prospectors and Developers Association of Canada, which was leaked in 2010, identified 171 high profile incidents between 1999 and 2009 in which “international mining and exploration companies were involved in community conflict, human rights abuses, unlawful or unethical practices, or environmental degradation in a developing country”. According to the study, Canadian mining companies had been involved in 33% of such incidents, which amounted to four times as many incidents as companies from India, Australia, the US or the UK.[6]

What has Canada done to address this problem? Very little indeed. There is no legislative framework in place requiring Canadian extractive companies to adhere to human rights standards in their overseas operations. Nor does Canadian law provide foreign victims of alleged corporate-related human rights violations with access to an effective remedy. Foreign victims of abuses by Canadian extractive companies who choose to sue in Canada face enormous obstacles in accessing justice. Most cases have been dismissed on jurisdictional issues. Of all the civil suits brought so far in Canada, only Choc v Hudbay case has proceeded to the merits. Moreover, there is no independent quasi-judicial complaint mechanism with the capacity to receive complaints of human rights abuse and other misconduct by Canadian extractives, to investigate allegations and to report on its findings, as an alternative to the court system. Instead, Canada continues to rely on extractive companies to regulate themselves and the government only provides for mediation between companies and foreign affected communities with the aim of easing the way forward for extractive projects.

Back in 2005, the Standing Committee on Foreign Affairs and International Trade, recommended, among other things, that the federal government “[e]stablish clear legal norms in Canada to ensure that Canadian companies and residents are held accountable when there is evidence of environmental and/or human rights violations associated with the activities of Canadian mining companies” and implement incentives to ensure corporate compliance.[7] In 2006, the Liberal government initiated nation-wide consultations, know as the National Roundtables on Corporate Social Responsibility (CSR) and the Canadian Extractive Industry in Developing Countries. In early 2007, following the conclusion of the consultations, the Roundtables Advisory Group, made up of leading representatives from civil society, the extractive industry and academia, issued a series of recommendations to the government for establishing a comprehensive and robust CSR policy framework for extractives operating overseas.[8] The Conservative government took two years to respond, and in 2009 launched its CSR strategy, “Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector”, which disregarded the most important recommendations made by the Advisory Group, including the establishment of an independent ombudsman with a mandate to receive and investigate complaints of corporate misconduct abroad.[9] Instead, the 2009 Strategy merely encouraged extractive companies to adopt or sign on to certain intergovernmental and multistakeholder initiatives and established the Office of the CSR Counsellor, an ineffectual dispute resolution mechanism with no power to compel companies, against whom allegations had been made, to come to the table.

In November 2014, the government launched a revised version of the CSR Strategy called “Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad”.[10]  The new Strategy is an improvement on the 2009 version. It sets out some expectations of conduct of Canadian extractive companies operating overseas and indicates that diplomatic support and certain types of economic support provided by the government may be withdrawn where such companies fail to adhere to the expectations of conduct or to participate in the dispute resolution process.

Despite these important changes, the Strategy does little to prevent corporate misconduct and to hold those that do not comply accountable.[11] First, the expectations of conduct are far from clear. Among other things, companies are expected to “respect human rights”, but the Strategy fails to provide specific and crucial guidance on what this might entail or to explicitly refer companies on this issue to the UN Guiding Principles on Business and Human Rights (UNGPs) (the widely accepted global standard on this issue) or the OECD Guidelines for Multinational Enterprises (which, in its chapter on human rights, explicitly draws on the language of the UNGPs). Rather, the Strategy simply refers companies more generally to a variety of diverse multistakeholder and intergovernmental initiatives, including the UNGPs and OECD Guidelines, “with the expectation that Canadian companies will align their practices as applicable”.[12]

Second, the 2014 CSR strategy strengthened the CSR Counsellor’s dispute settlement powers by making government economic and diplomatic support conditional on a company’s participation in its “review process”. But it did not transform the Counsellor’s Office into a much needed independent complaint mechanism, with the capacity to receive and investigate and report on allegations brought by victims of alleged corporate-related violations of human rights or breaches of the other expectations of conduct set out in the Strategy. The Counsellor’s review process remains a dialogue facilitation process. He may receive complaints from “project-affected individuals or communities” (or even extractive companies complaining about vexatious allegations against them) and “bring the disputing parties together to help them resolve their differences for a mutually beneficial result”.[13] Of course this can be a valuable exercise and help extractive companies and local communities to understand each other’s positions, to compromise and come to an agreement on how to move forward. But it does not provide victims with an effective remedy.

Finally, the Strategy does nothing to address the often insurmountable hurdles that victims of alleged human rights abuses face in having their claims considered on the merits in Canadian courts.[14]

The ball is now in the Trudeau government’s court to move beyond the approach of self-regulation and to take meaningful steps to ensure that Canadian extractive companies do respect human rights in their overseas operations, and, where the latter do not, to ensure accountability and to provide effective remedies for victims. In the past year, both the UN Human Rights Committee and the UN Committee on Economic Social and Cultural Rights have called on Canada to take legislative action to address the overseas conduct of Canadian extractives and provide remedies for victims.[15] The government must go further than simply tinkering with the current CSR strategy and the CSR Counsellor’s review process. It must adopt a comprehensive legislative framework with clear standards for Canadian companies operating abroad and develop incentive, facilitative and even coercive legal mechanisms to ensure compliance.[16] In addition to addressing the problem of access to justice in Canadian courts (perhaps by exploring Federal Court jurisdiction and a federal cause of action, or changes to the Uniform Law Conference of Canada’s Court Jurisdiction and Proceedings Transfer Act), the government must also establish an independent complaint mechanism, such as an ombudsman, as an alternative to the courts. The approach by the new Liberal government taken in addressing this pressing issue will be a litmus test for its commitment to the protection international human rights.





[1] See Bil’in (Village Council) v Green Park International Inc, 2010 QCCA 1455, leave to appeal to SCC refused [2010] SCCA No 364; Piedra v Copper Mesa Mining Corp (2011), 332 DLR (4th) 118, affirming 2010 ONSC 2421; Association canadienne contre l'impunité (ACCI) c Anvil Mining Ltd, 2011 QCCS 1966, rev’d [2012] JQ no 368 (QCCA), leave to appeal to SCC refused, 34733 (November 1, 2012); Choc v Hudbay Minerals Inc, 2013 ONSC 1414; Gize Yebeyo Araya v Nevsun Resources Ltd (20 November 2014), Vancouver S-148932 (BC SC) (Notice of Civil Claim); and Garcia v. Tahoe Resources Inc., 2015 BCSC 2045.
[2] Suzanne Daley, ‘Guatemalan Women’s Claims Put Focus on Canadian Firms’ Conduct Abroad’, New York Times (2 April 2016), online: http://www.nytimes.com/2016/04/03/world/americas/guatemalan-womens-claims-put-focus-on-canadian-firms-conduct-abroad.html?_r=0. Marina Jimenez, “Mayan families’ quest for justice against Canadian mining company HudBay”, Toronto Star (20 june 2016) online: https://www.thestar.com/news/world/2016/06/20/the-mayans-vs-the-mine.html; and Marina Jimenez “How a Guatemalan murder trial could forever change Canadian overseas mining”, Toronto Star (20 June 2016) online: https://www.thestar.com/news/world/2016/06/20/how-a-guatemalan-murder-trial-could-forever-change-canadian-overseas-mining.html.
[3] Choc v. Hudbay, note 1.
[4] Araya v Nevsun and Garcia v. Tahoe note 1.
[5] For the cases (called Specific Instances) brought against Canadian companies before Canada’s National Contact Point under the OECD Guidelines for Multinational Enterprises see http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/index.aspx?lang=eng&menu_id=1&menu=R. With respect to NGO and other reports on Canadian extractive companies see Human Rights Watch, “Papua New Guinea - Gold’s Costly Dividend: Human Rights Impacts of Papua New Guinea’s Porgera Gold Mine” (2010),  https://www.hrw.org/report/2011/02/01/golds-costly-dividend/human-rights-impacts-papua-new-guineas-porgera-gold-mine; Geoffrey York, “Barrick’s Tanzanian Project Tests Ethical Mining Policies” The Globe and Mail (Toronto, 29 September 2011) http://www.theglobeandmail.com/report-on-business/rob-magazine/barricks-tanzanian-project-tests-ethical-mining-policies/article559188/?page=all; Georgette Gagnon, Audrey Macklin and Penelope Simons, ‘Deconstructing Engagement: Corporate Self-Regulation in Conflict Zones - Implications for Human Rights and Canadian Public Policy’ (January 2003) University of Toronto Public Law Research Paper No. 04-07, http://ssrn.com/abstract=557002; and Working Group on Mining and Human Rights in Latin America, “The Impact of Canadian Mining in Latin America and Canada’s Responsibility: Executive Summary of the Report Submitted to the Inter-American Commission on Human Rights” (3 April 2014), http://www.dplf.org/sites/default/files/report_canadian_mining_executive_summary.pdf.
[6] Canadian Centre for the Study of Resource Conflict, “Corporate Social Responsibility: Movements and Footprints of Canadian Mining and Exploration Firms in the Developing World” (October 2009) at 6-7, http://miningwatch.ca/news/2010/10/18/suppressed-report-confirms-international-violations-canadian-mining-companies.
[7] Canada, Parliament, House of Commons, Fourteenth Report of the Standing Committee on Foreign Affairs and International Trade: Mining in Developing Countries - Corporate Social Responsibility, 38th Parl, 1st Sess (2005) http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=e&Mode=1&Parl=38&Ses=1&DocId=1961949&File=0.
[8] National Roundtables on Corporate Social Responsibility (CSR) and the Canadian Extractive Industry in Developing Countries, “Advisory Group Report” (29 March 2007) http://www.pdac.ca/docs/default-source/public-affairs/csr-national-roundtables-advisory-group-report.pdf?sfvrsn=6.
[9] Foreign Affairs, Trade and Development Canada, “Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector” (March 2009), http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse-2009.aspx?lang=eng.
[10] Foreign Affairs, Trade and Development Canada, “Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad” (14 November 2014), http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse.aspx?lang=eng.
[11] For a full assessment of the 2014 CSR Strategy, see P. Simons, “Canada’s Enhanced CSR Strategy: human Rights Due Diligence and Access to Justice for Victims of Extraterritorial Corporate Human Rights Abuses” (2015) 56(2) CBLJ 167, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2631158.
[12] “Doing Business the Canadian Way”, p. 6.
[13] “Doing Business the Canadian Way”, p. 12. Where formal mediation is needed, the Counsellor will support the parties to bring the issue to Canada’s National Contact Point, a body it is required to maintain under the OECD Guidelines for Multinational Enterprises. For a discussion of the self-imposed limitations and other shortcomings of the NCP process see Simons, “Canada’s Enhanced CSR Strategy”, note 11, pp. 194-198.
[14] For a discussion of these obstacles and the various cases that have been launched in Canadian courts, see Simons, “Canada’s Enhanced CSR Strategy”, note 11, pp. 198-205.
[15] See UN Human Rights Committee, “Concluding Observations on the Sixth Periodic Report of Canada”, UN Doc. CCPR/C/CAN/CO/6 (13 August 2013) para 6; and UN Committee on Economic Social and Cultural Rights, “Concluding Observations on the Sixth Periodic Report of Canada”, UN Doc. E/C.12/CAN/CO/6 (6 March 2016) para 16.
[16] See P. Simons and A. Macklin, The Governance Gap: Extractive Industries, Human Rights and the Home State Advantage (Routledge 2014) chapter 5.

Between the Lines - a new blog by uOttawa law feminist alumni

Monday, July 4, 2016





As taken from the Between the Lines website (btllaw21.com):

"Between the Lines, [is] a public legal education initiative undertaken by three feminists who met while attending law school in Canada’s Capital. This is an effort to unravel legislation enacted by our governments and to make the legislation accessible to the communities impacted by the legislation.

As Tamil, Grenadian-Trinidadian and Indigenous women, we choose to begin with the new carding legislation since parts of these regulations come into force on July 1, 2016.

Overall, the Regulation provides for extremely wide discretion of the municipal police boards or Commissioner (i.e., Ontario Provincial Police) in terms of policies, procedures and other items related to overseeing carding regulation. In fact, this Regulation does little to address concerns raised by individuals and communities about police abuse, police violence, and police harassment."

Follow us at @btllaw21 to find out what we are up to and check out www.btllaw21.com for more information on the carding legislation and how to get involved.

Monday, June 20, 2016

TRIGGER WARNING This article or section, or pages it links to, contains information about sexual assault and/or violence which may be triggering to survivors.



Presencing on (and Beyond) Our Turtle’s Back
In Memory of Hilary Bonnell (1983- 2009)

Josephine L. Savarese

Dr. Eve Tuck, currently an Associate Professor of Critical Race and Indigenous Studies at the Ontario Institute for Studies in Education (OISE), University of Toronto, visited New Brunswick in 2014 and gave a talk on her decolonizing research.[1] Since meeting Eve Tuck, I have been thinking about her call for an end to “damage-centred” studies on Indigenous women. For Tuck, this fixation is part of the colonial violence faced by women. I wondered whether her challenge might be taken up in a variety of contexts, even in relation to Indigenous women who have gone missing and have been found murdered.  A chapter I wrote in Forever Loved: Exposing the Hidden Crisis of Missing and Murdered Indigenous Women and Girls in Canada (Demeter 2016) examines the homicide of New Brunswick teenager, Hilary Bonnell. While writing, I worked to find something beyond a story of only tragedy.[2]

Many readers will know that Hilary disappeared in September 2009 while walking on a road on the Esgenoôpetitj (Burnt Church) First Nation one early morning. She was sixteen and had spent the evening celebrating the end of summer with friends. After weeks of frantic searching, an adult relation, Curtis Bonnell, admitted to detaining Hilary against her will, sexually assaulting her, suffocating her on the lawn in the backyard of his home and disposing of her body.  Hilary’s remains were found deep in the woods of the Acadian Peninsula after Curtis revealed the location. Accompanied by an Elder and by members of the Royal Canadian Mounted Police, Curtis led the team to the burial site.

In the face of the terrible, heartbreaking facts, the temptation to see only Hilary’s victimization is clear. Admittedly, it was a sad task to track Hilary’s agency while researching the case. It also seemed an important one given Tuck’s challenge to researchers who want to foster de-colonial aims. To learn more about Hilary’s life, I listened to her mother, Pam Fillier, share memories of happy moments with her beloved daughter with the Native Women’s Association of Canada.  In this moving passage, Pam described a day they spent together when Hilary was around eleven years old.  Pam stated that the pair “loved lilacs” because they were “so beautiful”. While driving in a large car, they spotted a lilac bush filled with blooms.  Pam continued “And we took them, as many as we could. We filled the whole back seat full of lilacs. We had lilacs in almost every room”. [3]

Dr. Sandrina de Finney might cite this poignant recollection of a mother and daughter collecting flowers to beautify their home as an example of what she terms “presencing”, after Leanne Simpson’s Dancing On Our Turtle's Back: Stories of Nishnaabeg Re-Creation, Resurgence, and a New Emergence.[4] de Finney uses this concept to help us understand indigenous girls’ ways of communicating to the world that they are vital, valuable, alive and self-determining through seemingly ordinary gestures.[5] Their varied acts of presencing range from “avoiding, protecting, contesting, laughing, hoping” to “dreaming, connecting, documenting, imagining, challenging”.[6]  Because de Finney emphasizes the importance of situating “Indigenous girls’ everyday processes of resurgence and presencing” in the context of the “intersecting forms of traumatic violence that colonial states and societies produce”, her insights help contextualize Hilary Bonnell’s life and last moments.[7]

For me, Hilary Bonnell’s presencing strategies as a young Indigenous woman are also evident in the details that emerged during the prosecution of Curtis Bonnell. For example, the last time that Pam Fillier heard from her daughter was the night before her death.[8] Sandrina de Finney would likely see particular significance in the fact that Hilary called her mother at 3:00 AM to discuss their shopping trip scheduled for the next day. Witnesses confirmed that Hilary appeared happy about the plan. Fillier reported the conversation ended with both parties expressing love for the other. Fillier never heard from her only daughter again. That some of Hilary’s last known statements were expressions of love might, in de Finney’s view,  complicate settler narratives of Indigenous girls’ as existing in ‘ungrievable bodies’ (citing Butler 2009) which possess no “hope” or “capacity” as “victim bodies, disenfranchised bodies”. [9]

The evidence established that Hilary fought back against Curtis and attempted to resist his sexual violence. One way she did this was to call for support. Text messages Hilary sent to her first cousin and close friend, Haylie, over the course of the evening into the early morning started from a “party atmosphere theme” to her final messages that “demonstrated that she was afraid of something or someone”.[10] Hilary’s bids for assistance went unanswered because her cousin’s cell phone was dead.

From a presencing perspective, the text messages are important. They work against the characterization of Hilary’s state as one of absolute victimization. Even though Hilary’s extreme fear is obvious, she also had the strength and presence of mind to call for help. These moments show Hilary’s courageous efforts to counter the very real and terrifying violence she encountered using the limited means available, her resolve and her cell phone.

Hilary’s legacy of resistance has the potential to benefit future generations. In response to her death, her friends and family dreamed of building a youth centre they planned to name “Hilary’s House” on the Esgenoôpetitj (Burnt Church) First Nation. While they were not able to realize this goal, their efforts to remember Hilary are inspiring. This is particularly so in the broader context of Atlantic Indigenous resurgences. There are many examples including the formation of a Peace and Friendship Alliance, a coalition of Indigenous and non-indigenous supporters, in March 2015. The coalition is working towards environmental justice and sovereignty guided by Peace and Friendship treaties.

Forever Spirit Dancing

By highlighting presencing, de Finney works to counter “the pervasive image of indigenous girls as exploitable and dispensable”.[11] Joining her quest to highlight agency seemed especially important when conveying a story about a previously missing and found to be murdered young indigenous woman who loved many things, including lilacs.  It seems worth acknowledging that irrespective of the scale, Hilary’s actions were brave given the powerful forces she confronted.

It is my hope that this effort to honour Hilary’s precious (and too few) acts of presencing might offer a sliver of comfort to her grieving family and community. The impact of her death on those who loved her is made obvious in many ways, including that over five hundred people attended her funeral. As her mother and community have made clear, Hilary Bonnell will be forever loved, as she spirit dances on and beyond the turtle’s back, in perpetual acts of presencing.

Josephine L. Savarese is an Associate Professor in the Department of Criminology and Criminal Justice, St.  Thomas University in Fredericton,  New Brunswick. In the chapter, “Analyzing Erasures and Resistance Involving Indigenous Women in New Brunswick, Canada” (in Forever Loved: Exposing the Hidden Crisis of Missing and Murdered Indigenous Women and Girls in Canada, Demeter 2016), she combines a focus on environmental justice and criminal justice in the examination of two Atlantic case studies on “missing” Indigenous women, from the homicide outlined in this text to the criminalization of a land defender. As she writes this blog, the lilacs are coming into bloom in New Brunswick.

Josephine can be reached at savarese@stu.ca.




[1] Eve Tuck “Respect and Risk: Chasing the benefits of research in Indigenous communities”,  November 13, 2014,
Marshall d'Avray Hall, Room 143, Faculty of Education, Colloquium Series.
[2] Edited by D. Memee Lavell-Harvard and Jennifer Brant.
[3] Digital Life Story of Hilary Bonnell, Native Women's Association of Canada, Youtube<https://www.youtube.com/watch?v=nZVKataQp10> 
[4] Arbeiter Ring Pub. 2011.
[5] de Finney, S. (2014). “Under the shadow of empire: Indigenous Girls' presencing as decolonizing force”. Girlhood Studies, 7(1), 8-26.
[6] At 22.
[7] At 20.
[8] R v Bonnell, NBQB 289 para 10.
[9] De finney, supra, at 10.
[10] R v Bonnell, NBQB 376, para 6. 
[11] De Finney, supra, at 20.
Designed by Rachel Gold.