Reproductive Labour? Perspectives on the law, policy and practice of surrogacy

Wednesday, December 7, 2016

On November 14th, 2016, the Greenberg Chair in Women and the Legal Profession at the Faculty of Law,  and the Centre for Health Law, Policy and Ethics, University of Ottawa, was proud to present a panel featuring a variety of perspectives on law, policy and practice of surrogacy in an international context.

The panel featured Prof. Bronwyn Parry, of the Faculty of Global Health and Social Medicine at King's College London, Pam McEachern, lawyer at Nelligan, O'Brian, Payne LLP ( family and human rights law) and Erin LePine, lawyer at Nelligan, O'Brian, Payne LLP ( family and fertility law).

Both a podcast and a transcript are available here.

A Letter to Our Friends on Both Sides of the Border

Tuesday, December 6, 2016


To The Parties Affected by the Recent Wave of Hate Crimes and Ignorance,

                First, I send you greetings from a fellow North American who shares the shock, the pain and the hurt has resulted from the recent U.S. Election for many groups. I also acknowledge the pain and frustration that those who have suffered at the hands of hateful individuals who have decided to emerge from hiding and reek terror on the good people of our cities, whether here in Ottawa or beyond our borders.

There are some things in life we cannot explain. At this time, it's easy to sink into the dark recesses of fear and be prepared to expect the worst in human beings. It’s natural to feel as though you’re now in a world where every stake that could’ve been uprooted has been hammered in tighter while even more are driven into the ground of your path in life. It’s easy to feel alone when it seems as though people have turned against you, have turned their backs on basic, human decency. You feel isolated, scared, fearful, depressed, even angry. You feel as though your friends will call you crazy for letting these things get to you; that your parents will say to worry about what you can change; that your significant other will slowly begin to distance themselves from you because you’re not the same person you were before these things happened.

                But you’re forgetting something.

                You’re not alone.

To the minorities who fear having their race be the only judge of their character,

                Your ownership and stake in this land has not been diminished by the amount of melanin in your skin. Your accomplishments have shaped the nation and the world so profoundly that no one can erase you from history. Your blood, sweat and tears have formed the foundation for laws and principles of oneness and equality that no executive order can overturn. Your cultural uniqueness is an asset, not a burden.  You are not alone.

To the women of the country who fear being shackled by sexism,

                Your worth can never be summed up by your measurements. Your potential doesn’t depend on how many likes your Instagram photos get. Your power does not come from a man’s permission to lead, but your God-given right to rule like the queen you are. Your integrity is not for sale because you are not an object. Your intelligence is not a question because it is often the answer. Your voice is not nagging, it’s you saying, “I want something better.”  You are not alone.

To the religious groups who fear being targeted because of their faith,

                Our faiths may differ, but the bonds of humanity we share can never be severed by differences in doctrines. Our practices may be different, but our shared love for human kind is one that transcends those things that spark contentions between us. We know what it is like to have extremists deface the principles of our faith and mislead people about the character of our God. We know what it is like to have people believe that a minority of ignorant, hateful individuals who believe that perverting Holy Scripture to suit political agendas, speak for all of us, who pretend that their actions don’t break the heart of a divine, loving God, whatever name we choose to call Him. You are not alone.

To the members of the LGBTQ+ community who fear being persecuted for their sexual orientation,

                 Who you love, how you identify, is none of our business. How we treat you is everyone’s concern. Your lives have been open books that some people wish were closed. They fear the confidence you have to live as you are because they wear masks to hide who they are. Your humanity is not determined by who you love, how you identify yourself or even how you live your lives.  You are not alone.

To the immigrant families and communities who fear being deported,

                Your place is right here with us. Your sacrifices are so bound up in the fabric of this country, your diverse experiences and skills so essential to the essence of what has made this nation already great, that to tear you out of it would be tantamount to tearing out a chunk of our soul. Your children are our children, your families are our families, and your home is where the hearts of all citizens of the country lie: in the soil of the land you are standing on. You are not alone.

                Anyone who tells you to hate your brother because he prays to a different God, pray for them because they know not what they do or what they say. Anyone who says that being a certain skin colour makes you inferior, show them where the Founding Fathers declared in the document that gave America its freedom that ALL men and women are created equal. Anyone who believes that a woman is nothing more than a rating given to her by a man-child, remind them that royalty doesn’t need outside consultation on whether their pedigree is good enough to sit on the throne and rule. Anyone who allows for hatred to thrive against people who are of a different sexual orientation, who wants to treat them as though they’re second-class citizens in a first-world country, enlighten them to the fact that human beings deserve respect and equal treatment, no exceptions.
               
Politics may shape a country, but it is the individual citizens who choose if they will be defined by it. And time after time, in the face of adversity, we have always stood together, whether we be Canadians or Americans. Because we all know as I do that our people who are hurting right now, who need our support and our protection, are not alone. There will always be others who share your views, individuals who support your dreams and your visions, communities of all faiths, races, and orientations who want to see your hopes bear fruit.

YOU. ARE. NEVER. ALONE.

And when individuals challenge you, if they want to stand in your way, if they dare you to make them move out of your way on the road to progress, your response…

Is not anger.
Is not guns.
Is not cynicism.
Is not violence.
Is not God-blaming.
Is not victim-shaming.
Is not establishment berating.
               
It’s nothing more than a smile and nine words.

“If we can move mountains, we can move you.” 


 ©Krystene Robinson

Krystene Robinson is a first year law student at the University of Ottawa in the JD/MA program. She is from Markham, Ontario and desires to pursue a career in international criminal law.  

Tuesday, October 25, 2016

The Greenberg Chair in Women  and the Legal Profession was thrilled to host Dr. Carys Craig on Wednesday, Sept. 21st, 2016. She delivered a talk entitled "A Feminist Copyright Agenda:
Open Access, Attribution & the Academy". You can find the transcript of this thought provoking talk here and the podcast here.

The 2016 Indigenous Bar Association Conference

By: Beth Kotierk

The 2016 Indigenous Bar Association Conference entitled “Redefining Relationships: With or Without You” was hosted in Musqueam Territory. There was a record-breaking student count at this year’s conference, which created a particular energy in the air - one that was forward-thinking and hopeful.

In our corner of the legal profession, women seem to outnumber the men and being surrounded by so many successful and inspiring Indigenous women was a rare and special experience. Looking around the conference, you could see distinguished and influential Indigenous lawyers and advocates. A deep respect for the work that has been done, and continues to be done by these individuals emerges as you navigate the conference and catch glimpses of their laughs and conversations.

The conference was filled with speakers that inspired and motivated like Senator Murray Sinclair, Jeffrey Hewitt, Dr. Val Napoleon, Dr. Tracy Lindberg, Tanya Kappo, and Jean Teillet.  All speakers spoke so eloquently - from their hearts - encouraging us all to remain critical and compassionate.

A common message of many of the speakers was to remember to love your communities more than you love yourself; a humble and powerful request of us. These tugs of responsibility and obligations, depending on your discipline, are overwhelming in isolation. Our ability to gather together and talk about culture, histories and current issues affecting our communities revealed the passion and pain of legal pursuits.

Val Napoleon, an absolute idol, was awarded the Annual IBA award this year at the gala. Val Napoleon was honoured by traditional Musqueam dancers and drummers; the ceremony was the most moving and beautiful honouring I have seen in a long time. I have a deep respect for this phenomenal leader and woman. A sense of joy, encouragement and connectedness filled the room during the gala, thinking about how far Indigenous peoples have come in our common struggle with the Canadian government; to be recognized and respected as nations.

Attending the conference provided us the opportunity to imagine what the future holds.This is only possible through the hard work of our community members and our women. Qujannamiik to the Indigenous Bar Association for being a revitalizing experience and support network for so many Indigenous women and female-identified Indigenous people.


Beth Kotierk is the daughter of Apayata and Juliet Kotierk from Igloolik, Nunavut. She is currently in her second year of law school at the University of Ottawa.

Nouveau cours appliqué sur la réforme féministe ANFD/ NAWL's applied course in feminist law reform

Monday, October 3, 2016

Chère amie, cher ami de l’ANFD,

Nous vous invitons à assister au lancement du nouveau cours appliqué sur la réforme féministe du droit intitulé : « Réforme du droit féministe 101 » du Fonds pour la recherche et l’éducation de l’Association nationale Femmes et Droit. Le lancement, suivi d’une réception, auront lieu le mercredi 2 novembre, de 18 h à 20 h, au Pavillon des diplômés Alex-Trebek, 157, Séraphin-Marion privé à l’Université d’Ottawa.

Il s’agit d’un tout nouveau cours en ligne d’accès ouvert et complètement bilingue qui se fonde sur l’expertise de juristes, de militantes et d’autres féministes activement engagées dans le processus de réforme du droit. Le cours se veut une sorte de « boîte à outils » permettant de développer les compétences nécessaires pour faire avancer les droits à l’égalité. Les sujets abordés comprennent notamment l’interaction avec des représentant(e)s du gouvernement et des députés, le recours efficace aux médias, et le travail au sein de coalitions. Ce cours combine des lectures avec de brefs clips vidéo et propose des questions à débat dans un format interactif susceptible d’être utilisé aussi bien en salle de classe que dans d’autres cadres. Après son lancement, le cours sera accessible ici.

Prière de répondre par courriel avant le 28 octobre à : anne.levesque@uottawa.ca. N’hésitez pas à diffuser cette invitation parmi votre entourage et auprès de toute personne susceptible de vouloir assister à ce lancement. Nous espérons vous voir en grand nombre le 2 novembre ! 


Dear friend of NAWL:

We are writing to invite you to attend the launch of the National Association of Women and the Law Charitable Trusts’ new applied course on feminist law reform: ‘Feminist Law Reform 101’.  The launch and reception will take place on Wednesday November 2nd, from 6 p.m. – 8 p.m. in the Alex Trebek Alumni Hall, 157 Séraphin-Marion Private, at the University of Ottawa.

This new online open-access and fully bilingual course draws on the expertise of feminist lawyers, activists and others actively engaged in the law reform process and provides a “tool-kit” for pursuing systemic legislative change. Topics covered include interacting with the executive branch and MPs, making effective use of the media, and working in coalitions.  The course combines readings with short video clips and suggested discussion questions in an interactive format designed for use in both classroom and non-classroom settings.  The course can be accessed herefollowing the launch.


Please RSVP before October 28th by e-mailing anne.levesque@uottawa.ca. Feel free to share this invitation with anyone who may be interested in attending and we look forward to seeing you on November 2nd

WLMP awards Shirley E. Greenberg

Shirley E. Greenberg recently received the Friend of the Women's Legal Mentorship Program Award. The WLMP has recognised Ms. Greenberg's dedication to women's legal mentorship and her work to increase the retention of women in the law.

#DanceIsMyExpression

Thursday, September 29, 2016

Some of our fabulous uOttawa law students invite you to #DanceIsMyExpression—a night of youth choreographed dance in support of mental health.

The night will feature dance pieces choreographed by Ottawa youth between the ages of 6 and 18 that are expressive of something they wanted to share with the world. These dancers have really done a fantastic job with their choreography. Their stories range from being in their happy place, to losing a grandparent, to bullying, to depression/suicidal thoughts, to friendship, to taking everything life throws at you. The showcase features all styles of dance and aspecial guest performance by YTV host Carlos Bustamante!

The showcase is being held on Friday Oct 14th from 7pm to 9:30pm at St. Paul's High School and all the proceeds from the event are going to the Paul Hansell Foundationa non-profit organization aimed at supporting the mental health and emotional well-being of youth. 


Tickets are available at: www.danceismyexpression.eventbrite.ca

An evening with Trey Anthony

Wednesday, September 28, 2016

Save the Date: An Evening with Trey Anthony

The Joint Chair in Women’s Studies at Carleton University and the University of Ottawa will be hosting an evening with Trey Anthony, the award-winning playwright, actor, executive producer, and director of the theatrical production “Da Kink in My Hair”. 

Anthony was the first Black Canadian woman to write and produce a television show of the same name for the Global Television Network and has been a writer and producer for the W Network, Comedy Network and CTV.  Anthony volunteers with Black Queer Youth Group in Toronto, mentoring female adolescent girls and in 2009, she founded a woman-focused wellness facility The Trey Anthony@One Centre in Toronto.
Please save the date to hear and welcome this Canadian icon on Tuesday, November 1st 2016 from 4 – 6pm.  This is a bilingual event.
Want to see the play?  Plan to stay and watch the NAC production of “Da Kink in My Hair” that night!  For ticket information, please consult the NAC’s website: http://nac-cna.ca/en/event/13616.  Please note that we are looking into securing discount tickets.
More details on both the event and the tickets to follow soon.

Prenez date : Une soirée avec Trey Anthony

La Chaire conjointe en études des femmes, de l’Université d’Ottawa et Carleton University, organise une soirée avec Trey Anthony, dramaturge, comédienne, productrice exécutive et réalisatrice de la pièce de théâtre « Da Kink in My Hair ».

Couronnée de plusieurs prix, Mme Anthony est la première femme noire canadienne à écrire et à réaliser une émission télévisée, qui porte le même nom que sa pièce de théâtre, pour le Global Television Network et a travaillé comme scénariste et réalisatrice pour le W Network, le Comedy Network et CTV. Mme Anthony travaille aussi comme bénévole avec le Black Queer Youth Group à Toronto, où elle offre un encadrement aux adolescentes. En 2009, elle a fondé à Toronto le The Trey Anthony@One Centre, un centre de bien-être pour femmes.

Veuillez réserver la date du mardi 1er novembre 2016, de 16 h à 18 h, pour accueillir cette idole canadienne. L’événement est bilingue.

Voulez-vous voir la pièce de théâtre? Restez pour assister à la représentation de « Da Kink in My Hair » au CNA ce même soir! Pour plus d’information sur les billets, veuillez consulter le site Web du CNA : http://nac-cna.ca/fr/event/13616. Veuillez noter que nous explorons la possibilité d’offrir des billets à tarif réduit.


Plus de détails sur l’événement et les billets suivront prochainement.  

Looking for information on the Greenberg Chair's Sept 22nd and Feb 22nd events?

Saturday, September 17, 2016

For more information on the Greenberg Chair's Feb. 22nd, 2017 and Sept. 22nd. 2016 events showcasing a variety of opinions on legal responses to the sex trade, please scroll down.

Racism and the Robin Camp Inquiry


Daphne Gilbert, Lise Gotell & Elizabeth Sheehy

What does it mean to be “racialized” in Canada? And what does it have to do with our responses to sexual violence?

We used this term in our recent op ed on the Justice Camp Inquiry before the Canadian Judicial Council.  One of the points we made in this piece is that Justice Robin Camp’s alleged “re-education” on sexism (as it inhibited his ability to judge the issue of sexual assault fairly) seemingly failed to deal with the issue of racism, which we believe was also critical in this case.

We said this because the complainant at whom he directed his aggressive and disparaging remarks was a young Indigenous woman. We were reinforced in our view by the fact that the Crown prosecutor, whose effort to focus his attention on the law (as opposed to his opinions) he rebuffed with a cruel remark, was herself racialized.

But you won’t find the word in our op ed because the news agencies involved were not satisfied that we could demonstrate that the Crown prosecutor is either objectively a “woman of colour” or considers herself “racialized”. They were also understandably worried that ordinary readers would not know what this word means.

The difficulty is that being “racialized” is about how one is perceived and treated in a given society at a particular historical moment—it’s not about either “facts” such as physical appearance or “self-identity”. As our colleague Professor Joanne St Lewis observes, the issue is whether one is a member of a community that is subjected to racism. In other words, the word “racialized” recognizes that “race” and the subordination that accompanies this designation is not inherent in the person but is rather a social relation—an exercise of power.

So, while the “incomprehensible” and “unsubstantiated” word “racialized” was excised, we remain convinced that racism has been “whitewashed” out of the Camp Inquiry and that there is something critical to discuss. Too late—but we were able to substantiate our use of the word, with the help of our colleague Professor St Lewis. This Crown attorney self-identifies as “Arab” and even Statistics Canada recognizes that people viewed as “Arab” are “visible minorities.”  Arab-Canadians do experience discrimination in daily life in Canada. Lise Gotell comments that Ms Mograbee’s colleagues, including judges, saw this as a significant aspect of what unfolded in the now infamous sexual assault hearing before Justice Camp.


We hope by this comment to both acknowledge the gap between racialized and non-racialized communities in terms of knowledge and experience of racism, and contribute to our collective understanding of racism as a critical force in perpetuating and excusing sexual violence.  

Perspectives on Legal Responses to the Sex Trade

Friday, September 16, 2016

Perspectives on Legal Responses to the Sex Trade

 The Shirley Greenberg Chair in Women and the Legal Profession will present two events during the 2016-17 academic year showcasing a variety of perspectives on legal responses to the sex trade. Faculty members, staff, students, alumni and the broader University of Ottawa community hold very different opinions on the appropriate legal response to the sex trade in Canada, reflecting a spectrum of positions from abolitionism to de-criminalisation or legalisation. These events are intended to provide a venue for the respectful expression and debate of opinions along this spectrum.

The first event will take place in the fall term, on September 22nd, 2016, and will feature three speakers whose positions reflect a diversity of abolitionist perspectives.  The second event, planned for Feb. 22nd, 2017, will reflect a variety of legalisation and de-criminalisation perspectives. The order of these events is dictated by the availability of the speakers, and does not reflect a hierarchy of ideas.

One of the most important roles of a university is to create an environment for the free, respectful expression and exchange of ideas. At the Faculty of Law we aim to foster a space of inquiry, learning, debate and exchange. These two events are designed to educate the members of the law school community on the relevant debates, and to provide a forum for respectful questioning and discussion.

Below you will find a series of links to information on the spectrum of proposed legal responses to the sex trade.

Amnesty International’s research and policy work on decriminalization (set in an international context).


Emily Bazelon writes about the history of difficult feminist discussions on the sex trade.  

Janine Benedet offers an abolitionist perspective.

The Open Society Foundations offers Ten Reasons to Decriminalize Sex Work.

The Social Action and Executive Committees of the Canadian Association of Elizabeth Fry Societies passed an abolitionist resolution.

Réforme féministe du droit/Feminist Law Reform course - update

Saturday, August 27, 2016

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

Réforme féministe du droit/Feminist Law Reform course

Tuesday, July 26, 2016

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

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

DESCRIPTION DE COURS :

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

EXIGENCE PRÉALABLE :

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

DOCUMENTATION :

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

MÉTHODE D’ÉVALUATION :

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


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

COURSE DESCRIPTION :

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

PREREQUISITE :

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

COURSE MATERIALS :

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

METHOD OF EVALUATION :

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

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

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

Tuesday, July 19, 2016


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

Anne Levesque

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

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

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

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

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

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

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

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

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

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

Thursday, July 7, 2016


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

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

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

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

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

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

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

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

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





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