An Open Letter to the Ministers of Justice and Canadian Heritage from Dr. Lynn Gehl

Friday, December 18, 2015

Dr. Gehl, an Algonquin Anishinaabe-kwe from the Ottawa River Valley, Ontario, Canada has posted this letter  asking for the reinstatement of the Court Challenges Program. This program formerly funded human rights litigants in challenging the Canadian government's human rights record, and its reinstatement would represent an important victory for social justice in Canada.

Revisiting Lavell and Bedard

Revisiting Lavell and Bedard


In June of 1971 Jeannette Lavell, Anishinaabe from Manitoulin Island in Ontario, took her complaint regarding the sex-discrimination in section 12(1)b of the Indian Act, that removed Indian status from Indian women when they married non-Indian men as defined by the Indian Act (the same did not apply to Indian men when they married non-Indian women), to the Ontario County Court.  Unfortunately, Lavell lost as the judge determined that she “had equal rights with all other married Canadian women” and as such there was no sex-discrimination.  Race was not factored into the court’s decision.

In the fall of 1971, Lavell appealed to the Federal Court of Appeal.  At this stage of the process the three judges determined that Indian women had fewer rights than status Indian men when they became non-status through marriage.  The judges concluded this to be a violation of the guarantee of non-discrimination within The Canadian Bill of Rights.  In this decision both gender and race were factored into the decision.

The Crown, with their goal of getting rid of Indians, was not happy with this higher court decision and appealed to the Supreme Court of Canada (SCC).

In 1971, Yvonne Bedard, Onondaga from Six Nations in Ontario, also filed a complaint in the Ontario High Court regarding the sex-discrimination in 12(1)b of the Indian Act.  Since the Lavell case had already been heard at the Federal Court of Appeal the two cases were joined together when the Crown filed their appeal to the SCC.

The SCC ruled that Lavell and Bedard had not been discriminated against as Indian women because The Canadian Bill of Rights only guaranteed equality BEFORE the law, not equality UNDER the law.  Equality before the law was interpreted by the court as meaning equality in the administration or application of the law. Another way of understanding this is a rationalization that since all Indian women are equally discriminated against it was not considered discrimination. 

In sum, Indigenous women lost, then won, then lost again because the highest court in the land defined equality in terms of the administration of law rather than the discrimination inherent in the law.  This of course is a pitifully narrow understanding of what equality in law means.  A person does not have to be a shamanic intellectual or a rocket scientist to understand this.

Four Equality Rights Established

In 1982, Canada’s Constitution was repatriated.  A part of the Constitution consists of the Canadian Charter of Rights and Freedoms which assures four equality protections:

Equality before the law;
Equality under the law;
Equal protection of the law; and
Equal benefit under the law.
      
Their Work Served All Women

It is said that the Lavell and Bedard cases informed this broader four part codification of what equality in Canadian law means.  In this way Lavell and Bedard served all Canadian women, not just Indigenous women.  We need to celebrate these women and also assure that Canada lives up to what equality means.  All Canadians, men and women, Indigenous and non-Indigenous need to continually ask ourselves, “Is this broader definition of equality rights afforded to all people?”

See Monture-Angus, P. (1995). Thunder in my Soul.  Halifax: Fernwood Publishing, 135-6.

Additional links:

RETHINKING THE RULES: MAKING ADMINISTRATIVE JUSTICE MORE ACCESSIBLE

Wednesday, December 16, 2015

by: Prof. Michelle Flaherty

It has become almost trite to say that access to justice in Canada has reached crisis levels.  While the justice system faces many challenges, one of the main pressure points has been the rise in self-representation.  For many administrative tribunals, self-representation is or has now become the norm. 

The National Self-Represented Litigants Project has very helpfully drawn attention to the plight of the self-represented litigant.  It has spawned discussion about many aspects of the justice system, from how legal services are delivered to how courts and tribunals are administered.  My particular interest is in the important role adjudicators can play in making administrative justice more accessible. 

Among other things, this has led me to think about how we use and apply the rules of procedure.  This begs a number of questions, particularly as the number of self-represented parties rise: Should self-represented litigants be held to the same standard as other parties?  Is this even possible?  If not, how can we contend with so-called universal rules that are not actually applied universally? The jurisprudence is replete with seemingly contradictory directions on these questions.  On the one hand, courts say that the same rules of procedure must be applied to all parties, including the self-represented.  But courts have also told us that fairness dictates that rules be applied more flexibly in some circumstances, and particularly where litigants are self-represented.   Attempts at reconciling these two principles have been inconclusive, creating something of a legal fiction.  For now at least, the reality is that although the same rules apply to everyone, they do not always apply in the same way to everyone.

Is there a simpler solution?  Rather than trying to explain a legal fiction, do the needs of self-represented parties call out for change?  And what if we undertook to fundamentally rethink the approach to rules of procedure?

Much work has been done to shift rules away from formalism, and introduce plain language and simpler proceedings.  Although many tribunals recognize that rules of procedure need to be both highly accessible and responsive to the needs of self-represented parties, rules of procedure continue to pose challenges.  For example: 

-     Rules of procedure are not page-turners.  In fact, they often lack any semblance of a story arc or chronology.  Even those of us who are legally trained struggle to read rules of procedure and grasp their implication in a particular case. 
  
-       They are often very technical and, to understand the rules, you may need to already be familiar with certain legal terms.  It is significant that rules are particularly inaccessible to the approximately 40% of Canadian adults who have low literacy skills.  Literacy issues are even more pronounced amongst low income adults.

-          Rules are not applied universally, even among represented parties.  The administrative decision-maker generally has the ability to derogate from the rules, where appropriate.  For example, although rules of procedure state otherwise, the late filing of documents often has no bearing on a party’s ability to rely on them.  How does this impact a self-represented party’s sense of the fairness of the proceeding?  What about cases where one party is represented by counsel and the other is self-represented?  How can the rules be applied in ways that are both accessible and fair to both parties?

-          Rules generally have to be read in conjunction with other documents, including a constituting statute, other legislation, and practice directions. It can be a challenge to find, read and reconcile all of these instruments

Many aspects of administrative justice are about empowering people to engage in the legal process without representation. In this context, rethinking the approach to rules of procedure is important, not just for self-represented litigants, but for the administrative justice system as a whole.  A clear and accessible procedure means that all parties have a better understanding of what to expect and they can be better prepared.  This may improve chances of pre-hearing settlements, limit the need for adjournments, and result in a more efficient use of adjudicative resources. 

So how can we rethink rules of procedure?

First, what if (as Ruth Sullivan has suggested in  “The Promise of Plain Language Drafting” (2001) 47 McGill LJ 97) we used the self-represented litigant’s perspective as a starting point for explaining the legal process?  But rather than having lawyers put themselves in litigants’ shoes, what if we involve laypeople in the rule-making process?  For example, the Human Rights Tribunal of Ontario (“HRTO”) commissioned a graphic artist to prepare a guide to mediation. I was struck by the level of plain language and the usefulness of the information.  The guide speaks of things I would not have thought to mention, but which I am certain helps parties better understand the mediation process and how to prepare for it.

Second, what if we considered different formats for explaining procedure?  Courts in Maine have developed Youtube videos, in which judges explain the procedures that will be followed.  In some cases, these videos are shown to parties at the outset of the hearing. Many tribunals have prepared litigation guides, which provide important contextual information and set out the rules of procedure in a narrative form.  The existence of these guides suggests that the rules of procedure themselves are not accessible or (at a minimum) that they would be more accessible in a different form.   Guides often indicate that they are not a substitute for the rules of procedure.  Why?  Other than convention, what binds rules to any particular format?  

While rethinking of rules of procedure is an incomplete answer, it seems to be an obvious step towards a more accessible administrative justice system.  Like many other access to justice initiatives, rethinking how we develop and communicate tribunal procedures calls out for innovation and creativity.  It is challenging to explain complex notions in simple terms that still convey the nuances of legal terms and processes.  However, rather than assuming that self-represented litigants can or should deal with existing frameworks, we need to recognize that access to justice calls out for change. 




Prof. Elizabeth Sheehy on Defending Battered Women

Friday, December 11, 2015

uOttawa Law Professor Elizabeth Sheehy was recently featured in this Calgary Herald article discussing violence against women.

A feminist take on the new immigration mandate

By: Jamie Chai Yun Liew

The Speech from the Throne last Friday, alongside the release of the Mandate Letter for the Minister of Immigration, Refugees and Citizenship has raised some questions for me as to whether the policy roadmap of this new government satisfies the feminist in me.

There are three things I hope the Minister will focus on during his mandate.

First, the Minister’s Mandate Letter specifically states that he should, “Bring forward a proposal regarding permanent residency for new spouses entering Canada.” As well, the government specifically stated on Friday, “the Government will introduce legislation that will provide greater support for survivors of domestic violence and sexual assault”. In making these statements, it is my hope that the Minister will take a good look at the previous government’s move to include section 72.1 of the Immigration and Refugee Protection Regulations (IRPR). This provision imposes a conditional permanent residence status on certain persons sponsored by their partners (whether common law, conjugal or married). The regulation earmarks those who have been in a relationship with a person for less than two years and who have no children with the sponsor and is a measure that imposes precariousness or temporariness to permanent status. The condition is that one must live with their sponsor for two years before their permanent resident status really becomes permanent.

Why is this problematic? It means that women who find themselves in abusive and violent relationships may not leave a dangerous situation for fear that they will lose their status in Canada. The condition can be used as a tool by abusive partners to keep persons within a violent relationship.

While a woman may seek an exemption from immigration officials, the bar is quite high both procedurally and substantively. Migrant women fleeing a violent situation not only have to contend with finding safe haven within Canada, but also need to provide evidence that “must clearly show the abuse or neglect”.

This problem with this exemption is that it presumes that women trapped in abusive relationships will have the knowledge or ability to obtain knowledge that this exemption exists. Given that some migrant women may have cultural and language barriers coupled with the isolation that may be imposed on them from an abusive partner, it is unlikely that many will take advantage of the exemption.

Beyond this, from a policy perspective, it is difficult to see how this provision meets its legislated objective – to combat fraudulent relationships. There is no evidence that relationship fraud is a significant problem in Canada and that a two-year conditional period will deter persons from entering into relationships of convenience who may simply wait out the conditional period. Further, there are other mechanisms in our immigration system that combat misrepresentation.

Second, the Minister’s Mandate Letter also emphasizes family reunification as a central objective of our immigration system. In emphasizing this, I also hope the Minister will examine whether there is a need for section 117(9)(d) of the IRPR. This provision imposes a lifetime bar on immigrants from sponsoring family members who, for a variety of tragic reasons as illuminated by the Canadian Council for Refugees, did not tell immigration officials of their existence. For example, women have been told they can never bring their children because they were afraid to tell anyone she had a child out of wedlock or at the time of their application process, thought a child was dead as a result of conflict and war. The promise of family reunification should not be shoved aside to strictly apply a law aimed at preventing fraud. Compassion and nuanced application processing should govern the process of family reunification.

Finally, the Minister is tasked with establishing “an expert human rights panel to help you determine designated countries of origin, and provide a right to appeal refugee decisions for citizens from these countries”. Such a regime allows the government to assume that all refugee claimants from a particular country are safe.

Why is this a problem? It means such persons will have to battle this presumption or bias that they are from safe countries in the eyes of their decision maker, but also gives them less access to some of the procedural rights afforded to all refugee claimants.  The persons most disadvantaged will be minority groups such as LGBT or women fleeing physical and sexual abuse.

Feminists should be optimistic that this government so far has been more consultative and transparent, releasing mandate letters, and reaching out to academics, advocates and various organizations. Only time will tell whether any of our suggestions will be implemented.

Feminist uOttawa doctoral student publishes article

Melisa Handl, a feminist doctoral candidate at the uOttawa Faculty of  Law recently published this fascinating article in the Jacobin.

Balancing Transparency and Accountability with Privacy in Improving the Police Handling of Sexual Assaults

Wednesday, December 2, 2015


A new paper by uOttawa researchers Amy Conroy and myself examines the balance between transparency and privacy in the review of police handling of sexual assault cases. The paper considers whether a successful U.S. model for the review of sexual assault cases that involves civilian experts such as front line sexual assault victim advocates could be implemented in Ontario, or whether the province’s public sector privacy legislation would prevent its adoption. We conclude that Ontario’s privacy legislation is sufficiently flexible to allow for this innovative model. This conclusion is important not just in this context, but in other areas – such as domestic violence, for example – where external expertise could improve the police response to crimes where pervasive societal biases and stereotypes can create systemic dysfunction.

The development and adoption of the innovated model in the U.S. was prompted by investigative journalism that revealed significant problems with how police in Philadelphia were dealing with sexual assault complaints. The Philadelphia Police Department introduced an innovative program designed to provide a regular and systematic review of how sexual assault complaints were handled by police. This model directly involves front-line sexual assault victim advocates working with police in systematic reviews of sexual assault records, with a particular focus on ‘unfounded’ cases. This highly specialized review committee works with police to identify cases recorded as unfounded that should be reopened and investigated. They also identify problems with the police handling of cases and work to find solutions. The model is considered to be highly successful and it has been adopted in other U.S. cities.

Problems with police handling of sexual assault complaints are not unique to the U.S. For example, a recent report by University of Ottawa Professor Holly Johnson examined the experience of women who report crimes of sexual violence in Ottawa. Her study was part of an initiative by the Ottawa Police Service to improve their response to such crimes. One of the issues highlighted in this report was the practice of police recording some complaints as “unfounded” – which leads to no further action being taken to investigate the allegations. Johnson’s study and others have raised concerns that the unfounding of complaints may be influenced by stereotypes, as well as biased and discriminatory attitudes.

Because the Philadelphia model requires civilians to work with police to review specific case files, there is a concern that public sector privacy legislation might not allow such an approach in Canada. Yet such a view misinterprets the role of the review panel. Clearly, under access to information laws, privacy principles would prevent the release of the highly confidential details of police case files to third parties. But the Philadelphia model is not premised on access to information; it is a form of civilian review board for which there is plenty of precedent in Canada, and which would have its own privacy-protective mechanisms in place. In our paper we argue that a mischaracterization of the nature of the model limits transparency and accountability in the name of misplaced privacy considerations. This argument builds upon our earlier Geothink- funded work on achieving a balance between transparency and privacy.


The adoption of the Philadelphia model by police forces in cities such as Ottawa should be seriously considered. The model is designed to identify problems in specific cases but also to work towards rectifying systemic problems. It could go a long way to helping meet the Ontario government’s goals set out in its Action Plan to Stop Sexual Violence and Harassment. While privacy remains an important value, it should not be used as an excuse to limit the adoption of innovative new models for transparency and accountability.

Ontario Teacher’s Surreptitious Video Recording of Female Students’ Cleavage was not “For a Sexual Purpose”

Wednesday, November 25, 2015

Ontario Teacher’s Surreptitious Video Recording of Female Students’ Cleavage was not “For a Sexual Purpose”

By: Prof. Teresa Scassa

Justice Goodman of the Ontario Superior Court has ruled that a high school teacher who used a pen camera to surreptitiously record interactions with female students – with an emphasis on their cleavage – was not guilty of voyeurism because he was not persuaded, beyond a reasonable doubt, that “the observation or recording is done for a sexual purpose” (Criminal Code, s. 162(1)(c)).

The videotaping in question took place at a high school in London, Ontario in 2011. The teacher used a pen camera to make seventeen video ranging from 6 seconds in length to over 2.5 minutes. The students captured in the videos were all female, and all between the ages of 14 and 18 years of age. The teacher, Ryan Jarvis, was caught when one of his colleagues became suspicious of his actions and reported Jarvis to the school principal. The principal sought out Jarvis. He crossed paths with him twice. The first time was while he was leaning against a locker, in conversation with a female student, with his arms crossed and holding up a pen from which a red recording light was shining. The second time was while he was in a computer lab, standing near a seated female student. The principal “noted that Jarvis had his arms crossed and was holding the pen so that the top, non-writing part of the pen was visible.”(at para 12) The principal took possession of the pen on June 21. Seventeen active videos were found on the pen. Police obtained a warrant to search Jarvis home over a week later on June 29. Although they seized various electronic devices, they found no more images or videos. Jarvis’ computer system was missing its hard drive.

The defence advanced two main arguments. The first of these was that the students at the school had no reasonable expectation of privacy, as they were in a public place and were already subject to daily surveillance via security cameras installed throughout the school. Justice Goodman made relatively short work of this argument. He noted that while there might be some instances at school where students have no reasonable expectation of privacy, this was not one of those instances. He wrote:  “the recordings are of diverse and somewhat prolonged duration in circumstances where the students’ spatial integrity in or about the school was impacted in a most surreptitious manner.  All this gives rise to an expectation of privacy by the students.” (at para 49)

The second argument of the defence was that it could not be established beyond a reasonable doubt that the video recordings were made for a sexual purpose. It was this argument that ultimately proved successful.

The images captured by the pen camera included a number of clips that focussed exclusively on the students’ breasts or cleavage. Other clips moved from the students’ faces to their breast area. Justice Goodman wrote:  “it is arguable that a reasonable viewer, looking at the clips objectively and in context, would perceive that these depictions of the students’ cleavage were intended to cause sexual stimulation to some viewers.” (at para 59) Nevertheless, he still found that the Crown had not established its case. He stated: “While a conclusion that the accused was photographing the student’s [sic] cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rationale [sic] conclusion required to ground a conviction for voyeurism.” (at para 77) Because of this, he found that guilt beyond a reasonable doubt could not be established. No examples were given of “other inferences that might be drawn”.

In reaching his conclusion Justice Goodman acknowledged that his decision might be “the subject of lay or judicial criticism” (at para 60). Good call. Implicit in the concept of “beyond a reasonable doubt” is that any doubt has to be reasonable. It is frankly difficult to conceive of any explanation for a male high school teacher’s surreptitious recording of his interactions with female students, in violation of their privacy rights, and with a focus on their breasts and cleavage, that does not involve sexual purposes. Any doubt that ‘sexual purposes’ motivated this behaviour would seem frankly unreasonable.


It is difficult to explain how Justice Goodman could find that the “accused’s behaviour was morally repugnant and professionally objectionable,” (at para 78) and yet still not be persuaded it was criminal. The outcome suggests that it has become so commonplace in our society for young women to be objectified and sexualized that it takes some really overt sexual dimension for the legal system to take notice. There are offences in the Criminal Code that deal with more overt forms of sexual exploitation and offences that address sexual violence. The voyeurism provisions are designed to capture, among other things, creeps with cameras. That they did not succeed in doing so in this case is troubling.

Legal Education and Violence Against Women: Ethical and Professional Demands

Monday, November 23, 2015

By: Prof. Suzanne Bouclin

Pamela Cross’s lecture on November 11th titled “Legal Education and Violence Against Women: Ethical and Professional Demands,” called on legal educators to make Violence Against Women (VAW) a mandatory topic of study in law faculties. Students, practitioners, members of the private and public sector and professors assembled to hear this highly-regarded feminist lawyer who has devoted her career to educating the broader public about and advocating with and on behalf of women and children who experience violence.

Shirley Greenberg Professor of Women and the Legal Profession Elizabeth Sheehy introduced the event, reminding those present of the intimate femicides perpetrated in the Ottawa Valley on September 21st and acknowledging the three women who lost their lives: Anastasia Kuzyk, Nathalie Warmerdam, and Carol Culleton.  She urged people to support the Ottawa Coalition to End Violence Against Women’s (OCTEVAW) Shine the Light campaign to bring community awareness to violence against women and girls. Moderator Professor Suzanne Bouclin insisted that November 11th – a day or remembering the casualties of armed conflict – must also be used to mark the lost lives of civilian women and children, against whom multiple forms of violence are regularly wielded in order to attain military and political objectives.   

Ms Cross began by explaining that VAW is not merely the domain of family and criminal law; rather it is a serious, socially-embedded problem that is often misunderstood, overlooked by lawyers working in other fields of law and ignored by the legal system more broadly. Part of the problem, she argued, is that VAW is not being taught widely or consistently in Canadian law schools. She acknowledged the important shifts in legal teaching over the last few decades and the inclusion of feminist and critical perspectives in course curricula as a result of work by feminist activists and academics.

She cautioned, however, that there remain on-going challenges to integrating feminist understandings of VAW within law faculties and queried how it might be done in a more comprehensive, embedded and consistent manner. Core concepts need to be introduced to law students, for example the understanding that VAW, domestic violence, and sexual violence are not mutually exclusive; that VAW can be disclosed by clients in any context and that lawyers must be able to see its relevance to the legal issues they are representing; and that our rules of ethics and professional conduct have particular implications in terms of VAW. She discussed the rules that govern integrity (what makes for an effective advocate in the context of VAW), core competencies (what skills do lawyers need in order to meaningfully work with women who have experienced trauma and violence), and confidentiality (how do the rules around confidentiality operate to render women and girls more vulnerable).  

Recommendations for curriculum change emerged during the question period, including: making VAW courses mandatory (to avoid further alienating the self-selected students who already see it as important and to acknowledge that VAW ought to be a pervasive component of the curricula); training professors on who to appropriate integrate VAW perspectives into their existing teaching; and rethinking course material with the view that VAW issues  arise in almost any area of law.


Her talk drew on her earlier work with the Law Commission of Ontario reportA Framework for Teaching about Violence Against Women and reports of Ontario’s Domestic Violence Death Review Committee. Both of these commissions have recommended that law schools in Ontario make VAW a mandatory component of the curriculum. The event was co-sponsored by the Shirley Greenberg Chair for Women and the Legal Profession and the Cavanagh LLP Professionalism Joint Speaker Series at the University of Ottawa, Faculty of Law. Law professors, students and activists are now in discussion about how to move this issue forward at uOttawa and at the national level.

____________________________________________________

Le 11 novembre 2015, des étudiant(e)s, des avocat(e)s, des membres des secteurs privé et public et des professeurs se sont réunis pour entendre Me Pamela Cross se prononcer sur le thème de la formation juridique et de la violence faite aux femmes et des exigences sur les plans éthique et professionnel (Legal Education and Violence Against Women: Ethical and Professional Demands). Me Cross est une éminente avocate féministe qui a consacré sa carrière à éduquer le grand public au sujet de la défense des droits des femmes et des enfants qui subissent de la violence en plus de défendre elle-même ces personnes. L’objectif principal de son discours était d’inciter les participants à se demander si la violence faite aux femmes(VFF) (en anglais "Violence Against Women (VAW)") devrait être enseignée de façon plus explicite dans les facultés de droit.

La professeure Elizabeth Sheehy a présenté l’événement en rappelant aux membres de l’auditoire les homicides conjugaux récemment commis dans la région de la vallée de l'Outaouais en rendant hommage aux trois femmes qui ont perdu la vie (Anastasia Kuzyk, Nathalie Warmerdam, et Carol Culleton). Elle a exhorté l’assistance à appuyer la campagne de la Coalition d'Ottawa contre la violence faite aux femmes, intitulée Pleine Lumière afin de sensibiliser l’ensemble de la communauté au phénomène de la violence contre les femmes et les enfants : http://www.octevaw-cocvff.ca/fr/projects/faire-la-lumiere. La professeure Suzanne Bouclin, en sa qualité de modératrice, a insisté sur l’à-propos de la date du 11 novembre – une journée consacrée au souvenir des pertes en vies civiles durant les conflits armés – en soulignant que les femmes et les enfants civils ont été parmi les plus grandes victimes de la guerre et que les multiples formes de violence sont le plus souvent dirigées contre ces civils afin d’atteindre, ce faisant, des objectifs militaires et politiques.   

Me Cross a commencé son allocution en expliquant que la violence faite aux femmes ne relève pas uniquement du droit de la famille et du droit pénal; en fait, il s’agit plutôt d’un problème de société grave souvent mal compris, voire ignoré, par les avocats qui exercent dans d’autres domaines du droit et auquel l’ensemble du système juridique ne semble pas, en général, attacher l’importance que ce fléau mérite pourtant. Selon elle, une partie du problème est que la violence faite aux femmes n’est pas un sujet d’études traité, ni enseigné couramment et/ou de façon constante dans les facultés de droit canadiennes. Elle a certes reconnu les importants changements apportés à la formation juridique au cours des dernières décennies et l’inclusion des perspectives féministe et critique dans les programmes d’études juridiques grâce aux efforts déployés par les militantes et universitaires féministes. Elle a cependant rappelé qu’il restait des défis importants à relever pour ce qui est de l’intégration des interprétations féministes de la VFF au sein des facultés de droit et se demande comment on pourrait réaliser cette intégration de façon plus complète, et plus uniforme et générale. Elle a à cet effet présenté quelques suggestions concernant son contenu spécifique. Elle a notamment recommandé de comprendre et de faire valoir que la VFF, la violence familiale et la violence sexuelle ne sont pas mutuellement exclusives ; d’explorer la manière dont la profession juridique facilite la VFF à la fois à titre symbolique et dans la réalité ; de remettre en question de façon critique nos règles d’éthique et normes de conduite – comme celles qui traitent de l’intégrité (ce qui fait qu’un défenseur se montre efficace dans le contexte de la VFF), les compétences essentielles (de quelles aptitudes et habiletés les avocats ont besoin pour travailler efficacement avec des femmes qui ont subi des traumatismes et de la violence), et le devoir de confidentialité (la manière dont les règles entourant la confidentialité fonctionnent de façon à rendre les femmes et les filles plus vulnérables). Voici quelques-unes des recommandations formulées pendant cette période de questions : rendre obligatoires les cours sur la VFF (afin d’éviter d’aliéner davantage les étudiantes et étudiants qui ont fait le choix de prendre ces cours, ayant reconnu l’importance du sujet et ce faisant, modifier la culture dominante au sein des facultés de droit pour reconnaître que la VFF devrait être une composante systématique de tout programme d’études en droit) ; former les professeurs sur la manière d’intégrer de façon appropriée des perspectives de la VFF à leur enseignement actuel ; et repenser le matériel pédagogique dans l’optique de soulever les enjeux liés à la VFF dans presque tous les domaines du droit.

Son allocution se fondait sur le travail qu’elle avait réalisé pour la Commission du droit de l’Ontario, intitulé Modules de formation des facultés de droit ontariennes : Cadre d’enseignement permettant d’aborder la violence à l’égard des femmes - août 2012 (http://www.lco-cdo.org/fr/violence-against-women-modules-final-report) et d’autres rapports produits pour le Comité d’examen des décès dus à la violence familiale de l’Ontario. Cet événement était parrainé par la Série de conférences professionnelles conjointes Cavanagh s.r.l. et de la Chaire Shirley E. Greenberg pour les femmes et la profession juridique à l’Université d’Ottawa, Faculté de droit. 


London high school teacher’s secret filming of 27 female students ruled not to be voyeurism

Friday, November 13, 2015



Read this newspaper report that outlines some of the key findings leading to the acquittal.


Seeing Crime: Visual Evidence, Emotions and Domestic Violence

Wednesday, November 11, 2015

Seeing Crime: Visual Evidence, Emotions and Domestic Violence

Monday, November 16

Loeb A602,  Carleton University, 2:30 to 4 pm.

Changes in prosecutorial strategies over the last 30 years vis-à-vis domestic violence ushered in new models of investigation that, among other things, privilege images of victims, both still and video. Drawing on case law, we argue that these visual artefacts of victims’ injuries as well as their video-taped sworn statements describing their assaults constitute what Haggerty and Ericson call a ‘data double’, a virtual doppleganger who is meant to stand, often antagonistically in the stead of the flesh and blood victim.
Dawn Moore
Associate Professor
Department of Law and Legal Studies
Carleton University



Dawn Moore is Associate Professor of Law and Legal Studies at Carleton University. She is the author of two books and over 20 monographs whose topics range from hate crimes, violence against women, drug users, critical criminology, prisoner’s rights and access to information.

Myths and Stereotypes

Tuesday, November 10, 2015

Read this op-ed by feminist professors Elaine Craig and Alice Woolley about a recent case on sexual assault, and judicial attitudes towards women.

Improving Police Response to Crimes of Violence Against Women

Friday, November 6, 2015

University of Ottawa Professor Holly Johnson has authored a report on how local police forces can improve their response to crimes of violence against women. Available in English and in French ,the report documents the experiences of women survivors of crimes of violence, and makes key recommendations based on this data.


Urgent Action Fund for Women's Human Rights

Thursday, November 5, 2015



The Urgent Action Fund for Women's Human Rights was established to provide rapid response grants (up to $5000) to women's human rights organizations when an unanticipated situation arises that requires immediate response in order to prevent the deterioration of women's human rights or to promote further advancement of women's rights. UAF supports women activists at critical junctures, when groups are able to use a small amount of funds to take advantage of unexpected opportunities and/or respond to threats. Please note, UAF is not able to provide funds for general operating or program support, development projects, or humanitarian aid.

There are two main categories of grants we support (or a mixture of both), security grants and advocacy grants. Security grants support women activists and their organizations when they are experiencing threats because of the work they are doing, i.e. the need for funds to evacuate, provide office security or unarmed guards. Advocacy grants support urgent activities in situations of unexpected 'openings' in policy and legislation, legally precedent cases, and public-awareness raising.

In the context of Canada, potential support may be given around the recent case of sexual assault allegations in Val d'Or, given that the women came out publicly, which is potentially precedent-setting. Support can also be given in the context of recent change in political leadership and thus an opportunity for women to put pressure on the current government to ensure that the national inquiry goes forward with substantial input from family members and leadership by the aboriginal women themselves. In addition, there might be an opportunity for advocacy around the Keystone Pipeline campaign. It is known that the campaign is women-led and currently there are efforts made by TransCanada to suspend the US Govt evaluation instead of full rejection. TransCanada hopes for a more favorable political climate when the US elections take place in 2016.

Please note that we do not require organizational registration.

More information can be found on our website http://urgentactionfund.org/apply-for-a-grant/criteriado-i-fit/.

Please contact Meerim Ilyas at meerim@urgentactionfund.org if you have further questions about our funding and what we support.

Doctors’ public duty trumps religious beliefs

Monday, November 2, 2015

Doctors’ public duty trumps religious beliefs


The license to practice medicine is a privilege accompanied by an obligation. Doctors who don’t get that should consider another profession. Using religion as an excuse to deny patient care or counsel is indefensible.

Earlier this year, the College of Physicians and Surgeons circulated a draft policy on “Professional Obligations and Human Rights” for its members. The College made clear that if a physician objects to providing a service to patients because it conflicts with the doctor’s own moral or religious beliefs, that doctor must refer the patient to another physician. This is eminently defensible.

No doctor can be compelled to offer a treatment or service that he or she feels ethically unable to provide. But neither can a doctor hold a patient hostage to his or her personal beliefs. Referral to another physician is the ethical and compassionate thing to do; it is what the law requires. 

In an op-ed last February, 2015, three Ottawa religious leaders argued the new Policy Guidelines deny physicians the ability to practice according to their conscience. In their view “it makes no sense” to ask physicians to “facilitate a wrong” by referring to another doctor. They argued “To make the practice of medicine less hospitable to those who profess their faith is an unjust form of religious discrimination.”   A legal challenge to the new Policy Guidelines has also been launched by five Ontario physicians and two doctor-advocacy organizations that claim both a religion and conscience objection to the Guidelines as well as a violation of equality rights.  

Primary care physicians hold the key to almost all treatment options. The profession operates on a system of referrals. When a primary care doctor cannot perform the necessary treatment, he or she refers to one who can. That is standard practice.  

What truly is discriminatory and wrong is for physicians to abandon their standard practice and professional obligations, prioritizing their faith over patients’ well-being. This is not a private matter for a physician. Canadian medical schools are located in publicly funded universities and taxpayers heavily subsidize the cost of a medical education. Graduates who remain in Canada will work in a taxpayer-subsidized health care system.

The two most notorious conscience matters for physicians are abortion and assisted death. While both remain areas of great public debate, they are settled Constitutional rights in law. Yes, the Charter of Rights and Freedoms protects a right to freedom of conscience and religion. Individuals are free to believe whatever they choose, and free to practice their beliefs (as long as they don’t contravene other laws or infringe on others’ freedoms). Physicians, as individuals, are entitled to the full protection of the Charter in their personal lives. But so are their clients. The Charter also protects my rights as a patient to make decisions about medical treatment, and to have my choices respected by health care providers.  And it guarantees me access to necessary medical services.  

People are never more vulnerable than when they require the help of physicians, and acutely so when seeking medical counsel about abortion and assisted death. That’s both an incredible burden and a precious obligation.  When a doctor refuses to provide abortion or assisted death services or counseling for reasons of conscience, that already sends a coercive message. Given the trust and personal relationships we cultivate with physicians who see us at our worst, our most fragile and helpless, this disclosure might already be devastating. To then have your doctor usher you out the door, without any further guidance about where or how you might find help, is not a matter of conscience—it is unconscionable.  Abandoning a patient at a time of great crisis is both unethical and unprofessional.  

The new Policy Guidelines offer a simple compromise:  refer the client to another doctor. A medical degree is a privilege—one that the public pays for—not a right. If a primary care practice requires you to compromise your beliefs, choose another practice area. There are many where such dilemmas would never arise. 

Patients have the right to know all of their options when they’re hurt, sick, pregnant or dying. They have the right not to be abandoned when they’re in crisis.





Feminist Professor Receives Health Law Grant

Thursday, October 29, 2015

Professeure Vanessa Gruben reçoit la bourse James-Kreppner!  

La bourse de recherche sur le système du sang James‑Kreppner a été octroyée à la professeure Vanessa Gruben pour son projet intitulé « Organ Donation in Canada: Engaging with Stakeholders and Proposing Solutions to Current Legal and Ethical Challenges » (Don d’organes au Canada : mobiliser les intervenants et proposer des solutions à des défis d’ordre juridique et éthique).

Les travaux de recherche de Prof Gruben portent sur la législation qui régit divers aspects de la procréation médicalement assistée, notamment les différends contractuels concernant les embryons congelés, la protection de la vie privée et l’accès à l’information, l’anonymat des donneurs de gamètes, la réglementation et le financement des technologies d’assistance médicale à la procréation, et le caractère constitutionnel de la Loi sur la procréation assistée.

La bourse James-Kreppner est l’un des nombreux programmes de subvention mis sur pied par la Société canadienne du sang en vue d’appuyer la recherche dans le domaine des sciences transfusionnelles, particulièrement en ce qui a trait aux questions d’ordre médical, juridique et éthique. Dans le cadre de cette occasion de financement, Mme Gruben recevra un montant de 75 000 $ par année étalé sur deux ans, soit en 2015 et en 2016.

Bravo Professeure Gruben 


Prof. Vanessa Gruben Awarded James Kreppner Fellowship

Professor Vanessa Gruben has been awarded the James Kreppner Fellowship in Blood System Studies for her project “Organ Donation in Canada: Engaging with Stakeholders and Proposing Solutions to Current Legal and Ethical Challenges.”

Professor Gruben’s research focuses on the legal regulation of various aspects of assisted human reproduction, including contractual disputes over frozen embryos, privacy and access to information, gamete donor anonymity, the regulation and funding of assisted reproductive technologies, and the constitutionality of the Assisted Human Reproduction Act.

The Kreppner Fellowship is one of a large number of funding programs established by Canadian Blood Services in support of blood-related medical, legal, and ethical research.  The fellowship provides Prof. Gruben with funding for two years (2015 and 2016) each in the amount of $75,000.

Congratulations Prof. Gruben!


Colleen,

LEAF Person's Day Breakfast


LEAF Ottawa proudly presents the Persons Day Breakfast Gala
on October 30, 2015

2015_LEAF_PDB_Ottawa

Out on Bay Street event at uOttawa Law

Tuesday, October 27, 2015

Join Out In The Capital on Wednesday, November 18 from 5:30 p.m. to 8:00 p.m. at Norton Rose Fulbright Canada LLP’s Ottawa office for our first event for law students and professionals. All prospective, current and newly graduated law students are welcome and will benefit from networking with fellow LGBTQA peers. Hors d’oeuvres and drinks will be provided.
Stephen Nattrass, associate and member of Norton Rose Fulbright’s PRIDE Network committee as well as member of the Ottawa office Student Committee, will moderate the panel and engage in discussions around diversity and inclusion with public and private sector employers, dealing with CVs, interviewing at law firms, and coming out/ being out at work. The panel discussion will be in English only.
Panelists include:
  • Melanie Bejzyk, Legal Officer, Criminal, Security and Diplomatic Law Division of Foreign Affairs, Trade and Development Canada
  • Angela Cameron, Associate Professor, University of Ottawa Faculty of Law
  • Grant Jameson, Counsel, Norton Rose Fulbright Canada LLP
  • Paul Jonathan Saguil, Counsel, Legal Department of TD Bank Group and Chair, OBA’s SOGIC Section
Date: Wednesday, November 18, 2015
Time: 5:30 p.m. – 8:00 p.m. (registration at 5:30 p.m. and panel at 6:00 p.m.)
Location: Norton Rose Fulbright Canada LLP, 45 O'Connor Street, 15th floor
Space is limited, please register online


Soyez des nôtres à On s’assume dans la capitale le mercredi 18 novembre de 17 h 30 à 20 h au bureau de Norton Rose Fulbright Canada, S.E.N.C.R.L., s.r.l. pour notre premier évènement accueillant des étudiant(e)s et professionnel(le)s en droit. Tous les étudiants actuels et futurs ainsi que les diplômés récents sont les bienvenus et auront l’occasion de faire du réseautage avec des pairs de la communauté LGBTQA. Des hors d’œuvres et des boissons seront servis.

Stephen Nattrass, avocat et membre du comité du réseau FIERTÉ de Norton Rose Fulbright ainsi qu’un membre du comité étudiant du bureau d’Ottawa dirigeront un panel de discussion portant un ensemble d’enjeux, y compris la diversité et l’inclusion dans les secteurs privé et public, des questions sur les CV, les entrevues avec des cabinets d’avocats, et comment mener une vie ouverte au travail. La discussion se fera en anglais seulement.

Les panelistes seront :
  • Melanie Bejzyk, agente juridique - Direction du droit criminel, du droit de la sécurité et du droit diplomatique du Ministère des Affaires étrangères, Commerce et Développement Canada
  • Angela Cameron, professeure agrégée, Faculté de droit de l’Université d’Ottawa
  • Grant Jameson, avocat-conseil, Norton Rose Fulbright Canada, S.E.N.C.R.L., s.r.l.
  • Paul Jonathan Saguil, avocat-conseil, Service juridique de Groupe Banque TD et Président de la Section orientation et identité sexuelles de l’Association du Barreau de l’Ontario
Date : le mercredi 18 novembre 2015
Heure : 17 h 30 à 20 h 00 (l’inscription commence à 17 h 30, et le groupe de discussion commence à 18 h 00)
Place : Norton Rose Fulbright Canada, S.E.N.C.R.L., 45 rue O'Connor, 15 étage
Les places sont limitées. Veuillez-vous inscrire en ligne.

                               

Dr. Tracey Lindberg - Oct. 27th, 2015

Wednesday, October 21, 2015

Dr. Tracey Lindberg will deliver a lecture  entitled : Canadian Legal Fictions and Indigenous Legal Truths: Law, Literature and Legacies as part of the Greenberg Chair Lecture series.

“Aftermath”: The Heartbreak of Rape

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


Professors Daphne Gilbert and Elizabeth Sheehy

Andrea Dworkin had vowed that she would never be raped again. As a survivor of rape and battering, her life had already been shaped by this crime. As a scholar she had theorized rape. As an activist she had mobilized women and enabled social and legal change in opposition to the impunity rapists, pimps, johns and pornographers enjoy.

She swore she would never be raped again: she would kill her next rapist or die trying. But because her last rapist drugged her, she was denied even that dignity of fighting for her life, her body and soul.

Dworkin wrote about her last rape both publicly and in private papers, turned into a monologue after her death in 2005. Her agonized reflections on that rape are now reproduced as a play called "Aftermath", currently ending its showing in Montreal at the Centre culturel Georges-Vanier. The play is simply staged with a ladder in the centre of the space and piles of feminist books strewn over the floor. The Montreal theatre is small, holding 20-25 audience members, placed close to the stage. The effect is intimate and hushed. One cannot avoid eye contact with the actress (Helena Levitt) who plays Dworkin.

As scholars who have written about sexual assault and as professors who have assigned Andrea Dworkin’s work as required reading to law students in our Sexual Assault course, the play was powerful and raw. Her theoretical work has embodied a systemic response to rape, understanding that rape is not only or even most importantly about the act of forced sex. This crime is of course a deeply personal violation and a terrifying experience for the woman, but it is also perpetrated by men as a crime of power that reenacts dominance and manifests the denigration of women. Theorizing rape helps some women cope with trauma, empowering survivors and supporting them in a web of other women who have been raped. As a raped woman, Andrea Dworkin spoke out about institutions (religions, universities, the military) and our misogynistic culture that glorifies the entwining of violence and sex. Her pain was ever present, but it seemed to us a pain that was wrapped up in the bodies of the hundreds if not thousands of raped women whom she supported in her lifetime.

“Aftermath” was a brutal post-script to all that we know of Andrea Dworkin’s life and work, and yet her reflections continue her theoretical contributions. This rape in Paris in 1999, a drug-induced, bewildering, inexplicable rape, challenged even Dworkin’s sense of context and theory. The confusion of that night is grippingly revealed over the course of the narrative. She was reading a book in the garden of her hotel, drinking a kir royale. She enjoyed reflecting that this was the first time in her life when men left her alone to enjoy a book and a drink in a public space without intruding on her space and contemplation. Or so she thought.

When suddenly she felt unwell, she struggled to the elevator, praying she could just get back to her room. She passed out on her bed. She rose some time later to call for room service. She remembers a young man entering her room with a pass key— she never opened the door. He brought her food. Then nothing. She remembers nothing of what happened next until she awakes in the morning with deep bloody scratches between her legs and a bruise on her left breast. She feels an injury within. She has no memory of how it happened. She suspects the bartender and imagines he was aided by the young man who brought her food, who saw that she was drugged, who knew she would be unable to fight back or complain. 

It is this confusion that overlays the entire play. But her confusion over what happened that night in Paris is the most straight-forward uncertainty. What haunts Dworkin, and her audience, is the bewilderment of “how”. How could she be raped again when she swore she would die or kill first? How could a woman in her 50s, reading a book in a garden in her hotel, wake up with bruises and bloody scratches? And how could a man rape a corpse— a lifeless body with no ability to resist and no awareness to fight. If sex is about power, what is the power in raping a “dead” woman? And how can she recover, contextualize, theorize, a rape she cannot remember; hours lost to a rapist that she can only reconstruct imaginatively, in nightmares?

Worse, perhaps, “how could this have happened to me?”, is her painful refrain. In the trauma of the experience Dworkin loses herself and her own trenchant analysis of rape, obsessively questioning all the ways and reasons why she wasn’t “asking for it.” It’s as if all of her insight was also taken by the amnesic drug her perpetrator used against her. The audience weeps as this rape proves to be the downfall of this magnificent feminist. Dworkin hid from the public for a year, finally writing about this rape only once in 2000 in the New Statesman. She was confronted by fierce criticism, doubt, disbelief. The “how could this happen to me?” became “did this really happen to you?”


Andrea Dworkin wrote her final book, Heartbreak: The Political Memoir of a Feminist Militant, in 2002, then withdrew from public life for the remaining years of her life. She attributed her declining health to the rape in Paris. When she died of acute myocarditis in 2005, her partner understood that she had died of a broken heart. It is so bitterly ironic that rape killed Andrea Dworkin when she swore she would kill her rapist.
Designed by Rachel Gold.