Twenty Years Ago on Saturday- a Queer Rights Landmark

Monday, October 29, 2012

October 27th, 2012 marks the 20th anniversary of the landmark decision that ended the policy that discriminated against LGBT persons serving openly in the Canadian Armed Forces. The case was brought by Michelle Douglas.

 Read an archived story from Xtra! for a description of how Douglas was ousted from the military despite a stellar career, but found her voice as an equality activist.

Thanks to Prof. Nicole LaViolette of the University of Ottawa Faculty of Law for this information.

Bedford Case Granted Leave to Appeal to the SCC

Thursday, October 25, 2012

Today the Supreme Court of Canada granted leave to appeal to the Attorney General of Canada in the case of Attorney General of Canada et al. v. Terri Jean Bedford et al.. The Court stayed the decision of the Ontario Court of Appeal until the Supreme Court decision is handed down.

Cuts to Refugee Health Care Hurt the Most Vulnerable








Cuts to Refugee Health Care Hurt the Most Vulnerable
Nicole LaViolette
  Parliament Hill was the site this week of yet another rally by health care workers to protest cuts made by the Conservative government to the Interim Federal Health Program (IFHP). The spark for this most recent protest was a political flyer sent out by Conservative MP Kelly Block praising recent Conservative cuts to refugee health benefits. Block suggests in her mailout that taxpayers should no longer pay for health care for refugees when such services are not available to Canadians.   
The IFHP is a federal health insurance program designed to cover refugees and refugee claimants who are not eligible for provincial or territorial health insurance plans. In April 2012, Jason Kenney, the Minister of Citizenship and Immigration, announced that the federal government would substantially cut the program by ending supplemental healthcare benefits, including pharmaceutical care, dentistry, vision care and the provision of wheelchairs, for refugee claimants and privately sponsored refugees. In addition, cuts have been made to basic primary health care, like prenatal care, cancer treatments, health checkups for children, and mental health services. Some refugees will receive emergency care only if their condition is deemed a threat to public health. 
Health care workers are rightly concerned that the cuts are jeopardizing the health of a very vulnerable population. Dr. Philip Berger, Chief of Family and Community Medicine at St. Michael’s Hospital has warned that “these program cuts would reduce care, increase costs to other areas of the health system and needlessly threaten public safety.” Since the cuts have taken effect, Canadian Doctors for Refugee Care have documented cases where individuals have been denied access to care, and medical clinics have refused to treat patients, even those with IFHP coverage.
Along with many other Canadians, I have been amazed at the site of protesters in white lab coats confronting politicians about the harm they are inflicting on a very vulnerable population. While I have been researching and writing about refugee law issues for many years, this time my interest is far more personal than academic. I have come to know only too well what doctors and medical students have denounced because of my involvement in sponsoring and resettling two women refugees as a member of Capital Rainbow Refuge. Capital Rainbow Refuge is a group founded by more than a dozen members of the lesbian and gay communities of Ottawa. We are a diverse group of professionals, lawyers, law students and community activists who have a strong commitment to Canada’s long tradition of welcoming refugees. Ironically, we came together at a time when Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, was challenging LGBT Canadians to sponsor sexual minority refugees to Canada. We took him up on his challenge and committed to supporting a lesbian refugee couple for one year as they settle into a safe life in Canada after fleeing persecution from family and society in their country of origin.
When Minister Kenney called on Canadians to privately sponsor LGBT refugees, he did not tell us he intended to make that commitment harder than we expected. Indeed, the lesbian women we have sponsored face serious health challenges. Before arriving in Canada, they spent over a year hiding from abusive family in a third country, after leaving their own country where women, and especially lesbians, are denied many basic human rights. They did not have access to health or dental care for many years and the care they now need surpasses what the provincial plan will cover (thankfully, Ontario does provide them with OHIP coverage).
Our group had to first advocate with federal bureaucrats to have the two women covered under what remains of the IFHP; the rules are unclear about what happens to refugees who are sponsored jointly by government and a private group, as in our case. While we succeeded, we are now navigating a refugee health care system where confusion, unnecessary costs and compromised care reigns, as documented by Canadian Doctors for Refugee Care. Not only has this meant that the two women continue to struggle with serious health issues, and health and dental care continues to be denied or delayed, it impedes their ability to fully integrate into the work place and Canadian society.
We expected challenges in resettling a lesbian couple who had fled a country that criminalizes and persecuted sexual minorities. But we did not expect that one of the significant hurdles we would confront would be our very own Canadian health care system. So the next time health care workers gather on Parliament Hill to protests unequal health care for refugees, I will find a white lab coat and join them.

                       

UOttawa Social Justice Soccer Cup

Wednesday, October 24, 2012


By Professor Suzanne Bouclin, University of Ottawa Faculty of Law
La deuxième Coupe de soccer en justice sociale est un franc succès !
Le 12 octobre 2012,  l’Assemblée en justice sociale de la faculté de droit, Université d’Ottawa  a accueilli la deuxième Coupe de soccer en justice socialedédié aux avocat-e-s, aux professeur-e-s et aux étudiant-e-s œuvrant en justice sociale.   Environ 70 participant-e-s ont donné leur meilleur sur le terrain de jeu pour remporter la très convoitée Coupe de soccer en justice sociale (achetée de seconde main, faut-il le préciser).  On a très rapidement découvert que même les passionnés de justice sociale – tant les étudiants que les professeur(e)s et les practicien(nne)s - peuvent se montrer, quand il le faut, des compétiteurs acharnés, mais aussi des fervents de la collégialité.  Le tournoi était un levé de fond pour ACORN Ottawa, un organisme indépendant et à but non –lucratif et œuvre pour et avec les familles à faible revenu et à revenu modéré :   www.acorncanada.org/ottawa. Cette rencontre sportive amicale a permis de favoriser le réseautage (les données empiriques permettre de croire que la Coupe aide aux étudiant-e-s à ce trouver des emplois!) et le renforcement communautaire parmi tous ceux et celles qui se passionnent pour la justice sociale. 

The Second Annual Social Justice Soccer CupNets Success 
On October 12th 2012, the Social Justice Caucus at the University of Ottawa’s Law Faculty hosted its second annual Social Justice Cup.  Over 70 participants, including law students, law professors and local social justice practitionerscame together to battle for the coveted Social Justice Soccer Cup (a recycled trophy) and the Spirit Award (bestowed by the Collegiality Judiciary).This year’s proceeds were donated to ACORN Ottawa, an independent national organization of low and moderate income families focused on effecting meaningful socio-economic change in its members’ lives: http://www.acorncanada.org/ottawa. The event is a fun, informal, and successful (anecdotal evidence suggests it helps students find jobs!) way to solidify Ottawa’s already impressive social justice community.  

Carleton University panel on Women, Race and Class in Academic Life

Rally Tomorrow for National Action Plan to End Violence Against Women and Girls

Dear Ottawa area Coalition for Gun Control supporters,

Our partner organizations the Ontario Association of Interval and Transition Houses and the Canadian Federation of University Women are hosting a rally on Parliament Hill tomorrow, Thursday October 25th, calling for a National Action Plan to End Violence Against Women and Girls. 

The march starts at the Delta Downtown Ottawa at 3:00pm. The rally on Parliament Hill will begin at 3:30pm.

Articling and Access to Justice in Ontario: From Crisis to Disappointment

Tuesday, October 23, 2012


By Professor David Wiseman, the joint co-ordinator of the Social Justice Caucus at the Faculty of Law, University of Ottawa.
Articling and Access to Justice in Ontario: From Crisis to Disappointment


The Law Society of Upper Canada’s Articling Task Force has recently released its Final Report Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario.  The Task Force was set up in response to the perceived ‘crisis’ of a roughly 10% shortage of articling placements.  After releasing a discussion paper, the Task Force went on a consultation tour and received over 100 written submissions from individuals and groups.  Ultimately, the Task Force finds itself split and, in my view, each camp’s attention to another crisis – of access to justice – is disappointing.

The majority is recommending a two-pronged initiative that, first, seeks to improve regulatory oversight and evaluation of articling, principally through an end-of-articling lawyer-skills assessment program.  The second prong would establish a pilot project for a ‘Law Practise Program’ (LPP) as an alternative to articles, using third-party providers.   The LPP would involve 4 months of skills-oriented education in a simulated context, followed by a 4-month co-op placement in a legal practise.  Licensing candidates (i.e. law grads) will bear the full cost of both of these prongs, but the costs will be equalized across the two alternatives.  The majority estimates that licensing fees will increase from $2,950 (for 2013, in the articling-only current system) to $5670.

A minority report of the Task Force recommends the abolition of articling and the establishment of a post-licensing program that will aim regulatory oversight and assistance, including systemic mentoring, to new lawyers working in high-risk contexts, especially sole practise.  Supplementary material released by the minority indicates that the costs of the post-licensing regime would mostly be borne by candidates but would increase the fees by a lesser amount than the majority’s proposals – from $2950 to $4,040.

From the perspective of access to justice, neither the majority’s nor the minority’s positions have much to recommend them.   Both positions do at least offer to address one existing barrier to access to the profession, namely, the tying of available articling positions to a combination of market forces (the job market for private articles) and government finances (government and legal aid articling).  Under the present system, where the medium-to-large firms provide the lions-share of articling positions, the number of available positions is determined by market forces and leaves significant numbers of academically qualified candidates unable to secure articles and therefore unable to enter the profession – and there is long-standing evidence that members of equality-seeking groups suffer discrimination in hiring as well.  Establishing an LPP or abolishing articling will provide a pathway for avoiding these barriers.

However, the increase in licensing fees associated with the majority’s proposals may establish or exacerbate an alternative barrier to entry to the profession.  Indeed, if medium and large law firms continue their existing practise of paying the cost of licensing for their articling students, the financial differential between articling and LPP stream candidates will be significant (not to mention the fact that the latter will not be receiving salaries).  There is no mention of bursaries or financial assistance for the LPP in the majority report.  There are also concerns, voiced by the minority, that LPP stream candidates may be stigmatized as having had to take a ‘second-best’ route to licensing.

From a broader access to justice lens, neither the majority nor the minority offer any meaningful recommendations for addressing the now well-documented crisis in unmet legal needs in Ontario.  This ‘other’ crisis was of particular concern to an ad hoc working group on access to justice and articling set up at the Faculty of Law at the University of Ottawa to make submissions to the Task Force.  As well as discussing the abovementioned existing and potential barriers to access to the profession, the working group argued that the Task Force ought to give priority to those proposals for changes to professional licensing that would make a meaningful improvement to access to justice. We suggested, for instance, that Ontario lawyers pay a levy of $100-$200 to fund either 100-200 stand alone access to justice articling positions or a civil law mega-clinic (offering a similar number of articling positions).  We also suggested that any LPP type program ought to be specifically geared to providing real-client service in areas of unmet civil legal needs. 

The majority report was dismissive of the idea of levying the profession, speculating that the levies required would not be ‘viable’ and pointing out that to the extent that high debt loads are a problem for new law grads seeking articling positions, this is the fault of the law schools for raising tuition and is beyond the jurisdiction of the LSUC.   As for the underlying suggestion that articling reforms become a vehicle for improving access to justice, the majority asserted that it lacked the mandate to give meaningful consideration to combining the objectives of articling reform and access to justice.  It also took the position that the access to justice obligations of the LSUC needed to be looked at ‘holistically’ and pointed to other LSUC committees charged with examining access to justice.  In my view, hiding behind a supposed lack-of-mandate and crossing-collective-fingers for a holistic review is unfortunate – a holistic review would surely benefit from a diversity of perspectives on the relevance of access to justice from across the spectrum of LSUC committees.   Unfortunately, the majority has taken the Articling Task Force out of the conversation.   It must be acknowledged that the majority does suggest that the 4 month co-op placements of the LPP be undertaken in areas of unmet civil legal needs, but this can hardly be expected to make much of a contribution at a systemic level.

The minority at least purports to be more concerned about broader access to justice, but the results are no better.  In particular, the minority takes the position that abolishing articles will allow more people to enter the profession and, therefore, there will be more legal service providers and so unmet legal needs will be met.  This is hard to believe – the existing crisis in unmet civil legal needs is not caused by a shortage of lawyers, it is caused by a shortage of affordable (including free) legal services.   More lawyers may produce some price competition in parts of the legal services market, but it is hard to believe that this will trickle down to many who cannot currently afford a lawyer. 

Overall then, from an access to justice perspective, the work of the Articling Task Force is disappointing.

Canadian pro-choice advocates on high alert

Wednesday, October 17, 2012

Thanks to Professor Martha Jackman of the University of Ottawa for the heads up on this news story related to a recent motion in Canadian Parliament.

The Law Society of Upper Canada Responds to Articling Shortage

Monday, October 15, 2012

The Law Society of Upper Canada Articling Task Force today released a report outlining their proposed plans to assist graduates who have difficulty finding articles.

Professor Carissima Mathen on HIV and solicitor-client privilege

Watch University of Ottawa Faculty of Law's  Professor Carissima Mathen on Law Times TV speaking about HIV and solicitor-client privilege.

The Mother-Baby Coalition for Justice invites you to join us on Wednesday, October 17th, noon.

Location: Madeline Meilleur's Constituency Office, 237 Montreal Rd.

Mothers and children, pregnant women, fathers, caregivers, and anyone who cares about the well being of mothers and children, join us in front of Madeleine Meilleur's office on Wednesday at noon to demonstrate that mothers and babies belong together and to demand justice for Ms Bilotta and for women prisoners more generally

Bring soothers, dirty diapers and placards so we can tell the Minister of Community Safe
ty and Correctional Services what we think of this:

***By now most people in Ottawa are familiar with the case of Julie Bilotta, the pregnant woman incarcerated in Ottawa’s infamous Ottawa-Carleton Detention Centre (OCDC) who gave birth to her son after laboring for nine hours in her cell and then in solitary confinement while being ignored and/or taunted by staff. (http://cbc.sh/we56rGm)


According to news reports, Ms. Bilotta was only allowed to hold her baby in the ambulance on the way to the hospital after his birth and has not seen or held him since. Because of the nature of OCDC, she will only be able to see her baby through 20 minutes ‘closed visits’ (ie behind a sheet of Plexiglas).

Not only is Ms. Bilotta not given a chance to establish a bond with her newborn son, he is also denied the right to be breastfed, something which is now widely recognized for its importance to the health of newborns.

Join other outraged mothers, their babies and supporters in front of Madeleine Meilleur's office on Wednesday at noon to demonstrate that mothers and babies belong together and demand justice for Ms Bilotta and for women prisoners more generally***

Please share this invite with your networks. If you aren’t able to participate on Wednesday please send a message to the Hon. Madeleine Meilleur by email at mmeilleur.mpp.co@liberal.ola.org or contact her office at 613-744-4484.

Delivering a Baby in Custody: Constitutional Dimensions











Delivering a Baby in Custody: Constitutional Dimensions
Vanessa MacDonnell*
On Wednesday, CBC news reported that a woman who was being held pending trial at the Ottawa-Carleton Detention Centre (OCDC) delivered a baby in her cell.[1]Earlier that day, OCDC medical staff had determined (wrongly) that the woman was not in labour. Rather than taking her to the hospital,correctional staff told her to “shut up”[2] and “transferred her from a shared cell to a segregation cell.”[3] The child was born breech.
            It is no secret that women experience the criminal justice system differently than men. This is especially so when a woman is pregnant, and statistics show thatat any one time, as many as one in ten women in the provincial correctional system are pregnant.[4]The Minister of Community Safety and Correctional Services has gone on record this week stating that “[p]regnant inmates should expect to receive the same level of care that expecting mothers in the community receive.”[5]The Minister also conceded, however, that correctional facilities are not equipped to deliver babies.[6]This means that an appropriate level of care can only be provided in a hospital, and that pregnant women are dependent upon correctional staff to effect a transfer.
The information currently available suggests that OCDC staff repeatedly disrespected the pregnant woman in their care and ignored her requests for proper medical attention, placing both her life and the life of her unborn child at risk.[7] This is not the first time a pregnant woman has been denied proper medical care while in custody.[8]Nor are complaints about the denial of medical care in general a rare occurrence. In recent years there have been several cases in which offenders have received extra credit for time spent in pre-trial custody during which medical care was improperly withheld.[9]
            It is worth recalling that the woman involved in this incident has yet to go to trial on the charges she faces and thus benefits from the presumption of innocence.In any event, access to adequate health care should (and as a matter of law, must[10]) be provided to both persons who are awaiting trial and to those who have been convicted. Moreover, although individuals may lose their liberty when they detained or incarcerated, they do not lose access to their Charter rights.[11]The incident that occurred at the OCDC this week raises serious s 7 issues.
            Earlier this week the Supreme Court of Canada heard a constitutional challenge to s 243 of the Criminal Code, which makes it an offence to“conceal the dead body of a child.”[12]The appeal concerns actions taken by the accused, Levkovic, shortly after she gave birth.In defending the charges, the accused argued that s 243 violates s 7 the Charter that it is unconstitutionally vague. As might be expected, some of the Charter arguments made in Levkovic apply equally to the OCDC incident.[13]In arguing that the s 7 liberty and security of the person interests were engaged by s 243, the appellant submitted that
A woman’s decisions concerning her own pregnancy - including choices whether to becomepregnant and concerning medical treatment or conduct while pregnant - unquestionably fall within “the core of what it means to be an autonomous human being blessed with dignity and independence in ‘matters that can properly be characterized as fundamentally or inherently personal.’”[14]
In making this submission, Levkovic was relying upon the Court’s prior jurisprudence in which it had concluded that the liberty and security of the person interests “protect[] a core of intimate or private decisions that are fundamental to personal autonomy.”[15]
In my view, the OCDC incident engaged the woman’s life, liberty and security of the person interests. The woman was detained pending trial, and was thus deprived of the freedom to make and implement choices about the delivery of her child.This engaged her s 7 liberty interest. Her physical security of the person was engaged because she had no control over the physical circumstances of the birth – she was at the mercy of the state to ensure the safe delivery of her child. Her psychological security was also engaged, for many of the same reasons discussed in Levkovic. On the authority of cases like Morgentaler, Rodriguez, Chaoulli and Insite, moreover, security of the person is engaged when the state “prevent[s] access to health care.”[16] The argument is even stronger in the correctional context, where health care cannot be accessed without state support.And finally, the woman’s life interest was engaged by the actions of correctional staff in refusing to provide appropriate medical care, with the result that the accused was forced to give birth in a jail cell.
Was this deprivation of s 7 interests in accordance with the principles of fundamental justice? The short answer seems to be no, given that the “individual’s rights [were]deprived for no valid purpose.”[17] This suggests that the state’s actions were both arbitrary and grossly disproportionate.[18] As counsel for both Levkovic and the intervener Criminal Lawyers Association pointed out in oral and written argument, a contextual approach to the s 7 inquiry requires the Court to be alive to the “gendered nature” ofthe “interest[s]” at stake[19] as well as to other potentially relevant Charter rights, including ss 15 and 28.
On the human, statutory, and constitutional levels, therefore, what happened at the OCDC this week is cause for great concern. The Ministry says that it has commenced an investigation into the treatment of this woman.[20]Let us hope that the publicity this incident has garnered prompts broader changes in the way that pregnant women are treated in custody.



* Assistant Professor, University of Ottawa Faculty of Law (Common Law Section). Thank you to Jula Hughes and Leo Russomanno for helpful comments.

[1]“Inmate’s Rights Allegedly Violated in Jailhouse Birth” CBC News, October 10, 2012, online: http://www.cbc.ca/ news/canada/ottawa/story/2012/10/10/ottawa-jail-baby-born-cornwall-woman-complaint.html (last accessed 13 October 2012) [“Inmate’s Rights”].

[2] Joanna Smith, “Ottawa Prison Investigating Allegations that Guards Ignored Woman who Gave Birth in Jail Cell,” Toronto Star, October 12, 2012, online: http://www.thestar.com/news/canada/article/1270213--ottawa-prison-investigating-allegations-that-guards-ignored-woman-who-gave-birth-in-jail-cell (last accessed 13 October 2012) [Smith, “Ignored Woman”]. Thanks to @lawandlit for posting this article on Twitter.

[3]“Inmate’s Rights,” supra.

[4] Council of Elizabeth Fry Societies of Ontario, “Facts and Figures: Profile of Provincially Sentenced Women In Ontario,” online: http://www.cefso.ca/facts-figures.html (last accessed 13 October 2012), citing Margaret Shaw et al, “A Survey of Women in Institutions and Under Community Supervision in Ontario” (Toronto: Research Services Strategic Policy and Planning Division, Ministry of the Solicitor General and Correctional Services, 1994). A more recent study put the number at one in 40. See Alison Cunningham and Linda Baker, “Waiting for Mommy: Giving a Voice to the Hidden Victims of Imprisonment” (London, ON: Centre for Children & Families in the Justice System, 2003) at 6, online: http://www.lfcc.on.ca/WaitingForMommy.pdf (last accessed 13 October 2012).

[5]Smith, “Ignored Woman,” supra.

[6]Inmate’s Rights,” supra.

[7]Ibid; Smith, “Ignored Woman,” supra.

[8] For another example in which the Ontario Ombudsman was involved, seehttp://www.ombudsman.on.ca/Investigations/Selected-Cases/2012/Pre-labour-pains.aspx(last accessed 13 October 2012); see also “Inmate’s Rights,” supra.

[9]Thank you to Leo Russomanno for pointing this out to me. See, eg, R v McKeon, [2009] OJ No. 4189 (CJ); R v Lammi, [2007] OJ No. 2911 (CJ); R v King, 2007 ONCJ 447; R v Dodd, [2004] OJ No. 6074 (CJ).

[10]Section 24(1) of the OntarioMinistry of Correctional Services Act, RSO 1990, c M.22, provides that “Where an inmate requires medical treatment that cannot be supplied at the correctional institution, the superintendent shall arrange for the inmate to be conveyed to a hospital or other health facility.” More detailed provisions exist federally. See Corrections and Conditional Release Act, SC 1992, c 20ss85-89, cited in Debra Parkes, “A Prisoner’s Charter? Reflections on Prisoner Litigation Under the Canadian Charter of Rights and Freedoms” (2007) 40 UBC L Rev 629 at 630 [Parkes, “Prison’s Charter”].

[11]Parkes, “Prisoner’s Charter,supra at 635.

[12]Section 243 of the Criminal Code.The decision under appeal is R v Levkovic, 2010 ONCA 830, 271 OAC 177.

[13] The parallels between the Supreme Court of Canada appeals and the incident at the Ottawa-Carleton Detention Centre came to me after misreading a tweet of @BrendaCossman’s!

[14]Factum at para 16.

[15]Ibid at para 15, citing, inter alia,R v Malmo-Levine, 2003 SCC 74,[2003] 3 SCR 571 at para 85, Blencoe v British Columbia(Human Rights Commission), 2000 SCC 44,[2000] 2 SCR 307at para 82; New Brunswick (Minister of Health and Community Services) vG.(J), [1999] 3 SCR 46, 177 DLR (4th) 124 at paras 58-64; Rodriguez v Attorney-General of British Columbia, [1993] 3 SCR 519 at 587-588, 107 DLR (4th) 342.

[16]Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 at para 93 [Insite], citingR v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385, Rodriguez, supraand Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791, 2005 SCC 35.

[17]Rodriguez, supra at 594.

[18] See Insite, supra.

[19] Factum at n 20.

[20]Smith, “Ignored Woman,” supra.

Professor Catherine Dauvergne named Trudeau Scholar

Thursday, October 4, 2012






Feminist Professor Catherine Dauvergne of the University of British Columbia Faculty of Law was  recently named a Trudeau Scholar. Professor Dauvergne's research is in the areas of immigration and refugee law.  She has been involved in internationally collaborative work regarding first instance refugee decision making and she led an interdisciplinary project examining gender issues in Canada's refugee decision making system. Congratulations!

Update on Windsor Gender Equality Initiative

Tuesday, October 2, 2012

See the Windsor Star for an update from Dean Cameron of the University of Windsor Faculty of Law. Dean Cameron explains the faculty's decision regarding representing men accused of violence against thier partners in opposite sex relationships at their legal clinic.
Designed by Rachel Gold.