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:


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.
Designed by Rachel Gold.