CEDAW inquiry into grave violence against Aboriginal women in Canada

This post, authored by Meghan Campbell, was first published on the Oxford Human Rights Hub on 25 March 2015 and is republished here with the permission of the author. 

On March 6, 2015 the CEDAW Committee released its second inquiry into grave and systemic violations of CEDAW under the Article 8 of the OP-CEDAW. This inquiry was initiated by the Feminist Alliance for International Action and the Native Women’s Association of Canada. These two organisations alleged grave and systematic violations of CEDAW in relation to the disproportionately high levels of violence experienced by Aboriginal women and girls in Canada. Particularly, they argued Canada was in breach of CEDAW because (i) there was no co-ordinated national action plan to address the root causes of violence; (ii) the failures of law enforcement to protect and prevent violence against Aboriginal women and (iii) there was no national public inquiry into missing and murdered Aboriginal women.

The CEDAW inquiry found a firm factual basis for these allegations. Between 1960 and 2013, 663 Aboriginal women have gone missing or being murdered (para 4). In the period 2000-2008 the murders of Aboriginal women represent 10 per cent of the total number of female homicides, despite the fact that Aboriginal women make up only 3 per cent of the total female population (para 7). Aboriginal women are 3.5 times more likely to experience domestic violence and sexual assault than non-Aboriginal women and 5 times more likely to die of violence (para 3).

Canada did not deny the factual claims but argued that its response to violence against women was sufficient to discharge its obligations under CEDAW. The government provided extensive evidence of the funding, programmes and government studies undertaken to prevent further violence against Aboriginal women (para 32-81).

The main focus of the inquiry was the appropriateness of the Canada’s response. After a country visit, the inquiry concluded that Canada’s efforts to address violence against Aboriginal women and girls were inadequate in light of the gravity of the situation. To meet the due diligence standard under Article 2 of CEDAW the formal framework established by Canada must be in practice be effective and available.

The report provides numerous examples of where Canada has failed Aboriginal women and this post highlights a just a few of the findings from the inquiry. First, the Committee concluded that the federal and provincial studies on violence against Aboriginal often had a limited mandate; the recommendations were at times general or ignored and never implemented (para 100-104). Second, the high incidence of poverty, inadequate housing, lack of education and employment opportunities increases Aboriginal women’s vulnerability to violence (para 112). Although Canada has taken step, the measures ‘have not gone far enough’ (para 117). For example, when asked for information on anti-poverty programmes, Canada it did not provide any specific reference to the needs of Aboriginal women and girls (para 118-19). Third, Aboriginal women are reluctant to report violence to the police ‘mainly due to police behaviour and bias’ (para 138). Stereotypical attitudes of Aboriginal women as prostitutes or runaways engaging in high-risk lifestyles often negatively impacted the quality of the police investigation. (para 136-37, 205). While Canada has taken steps to provide gender sensitivity training for police and has developed protocols on investigating cases of missing and murdered Aboriginal women, these are of limited efficiency due to their non-binding nature and lack of oversight and enforcement mechanisms (para 144).

The inquiry also made important contributions to the development of CEDAW. It re-emphasises the importance of substantive equality by holding that it is not sufficient for Canada to apply the same standards to Aboriginal women as have been applied to others. Aboriginal women are particularly vulnerable and Canada’s response needs to account for their disadvantaged position in society. The Committee also highlighted the importance of addressing poverty in protecting Aboriginal women from violence. While there are no substantive obligations in CEDAW on poverty, the Committee is employing a rich interpreting of the treaty to address an underlying cause of violence against Aboriginal women. The inquiry noted that achieving equality before the law (Article 15) is ‘necessarily related to positive obligations…to fulfil economic and social rights enshrined in CEDAW’ (para 199). At the same time, the full development and advancement of women (Article 3) requires Canada to take positive measures to ensure access to education, housing, transportation and support to families and children.

The inquiry offers a series of recommendations to combat violence, improve socio-economic conditions and eliminate discrimination against Aboriginal women and called for a national public inquiry and plan of action. Canada accepted 34 of the 38 recommendations, but unfortunately it still resists holding a national inquiry and plan of action. Notwithstanding this, the CEDAW inquiry is an important contribution to understanding intersectional discrimination and gender inequality. Hopefully it can form the basis for continued dialogue between government officials and the Aboriginal community so as to end violence against Aboriginal women and girls.

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Committee declares asylum communication inadmissible, clarifies extraterritorial effect of CEDAW (Y.W. v. Denmark)

In 2010, Y.W., a Chinese national, sought asylum in Denmark. Y.W. claimed that, if deported to China, she would be killed or subjected to violence by organised criminals, who, as a result of a large gambling debt her former husband raised in her name, had previously threatened and raped her, burned her with hot oil and forced her to work as a prostitute. Y.W. further claimed that Chinese authorities would not protect her effectively because they do not acknowledge gender-based violence against women.

In May 2010, the Danish Immigration Service rejected Y.W.’s asylum claim as manifestly unfounded. It concluded that the acts against her were criminal offences irrelevant to asylum law and she could seek protection from the Chinese authorities.

In January 2013, Y.W. submitted an individual communication to the Committee on the Elimination of Discrimination against Women. She claimed that her deportation to China would constitute a violation by Denmark of articles 1 to 3, 12 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women, read in conjunction with the Committee’s General Recommendation No. 19. Among other things, Y.W. submitted that:

  • she had been discriminated against as a woman in seeking to access to justice because more females than males are denied asylum in Denmark under the “manifestly unfounded” procedure and deported, without the right to appeal
  • she would be subjected to gender-based violence by organised crime elements, if deported to China, and that Chinese authorities would not protect her effectively
  • the State Party, by rejecting her asylum claim, failed to protect her against discrimination against women and violence that would put her life and health at risk
  • while in prison, the State Party failed to provide her treatment for the trauma she suffered as a result of the violence
  • the State Party failed to provide her effective remedies for the violations she experienced.

State Party’s observations on admissibility

The State Party submitted that the Committee should declare the communication inadmissible, as Y.W. had failed to:

The State Party further submitted that the communication should be declared inadmissible ratione loci and ratione materiae, as Denmark’s obligations under CEDAW apply only to people under its jurisdiction and do not extend to violations that another State Party is expected to commit (ie CEDAW lacks extraterritorial effect). It further claimed that, unlike other human rights treaties, CEDAW does not deal with removal to torture or other serious threats to life and the security of a person.

Committee’s decision on admissibility

The CEDAW Committee determined that Y.W. had failed to substantiate her claim sufficiently and declared the communication inadmissible under article 4(2)(c) of the Optional Protocol.

Gender-based violence / non-refoulement

The Committee recalled its General Recommendation No. 28 in which it noted that CEDAW applies both to citizens and non-citizens, including asylum seekers, within a State Party’s territory or control. It also recalled its General Recommendation No. 19, in which it noted that gender-based violence is a form of discrimination against women and violates other human rights, including the right to life and the freedom from torture and other cruel, inhuman or degrading treatment or punishment. It also re-affirmed that, under international human rights law, States Parties must refrain from returning people to a jurisdiction in which he or she may face serious rights violations, including arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment, or gender or other forms of persecution.

The Committee rejected the State Party’s claim that CEDAW does not have extraterritorial effect and recalled that article 2(d) imposes an obligation to refrain from discriminating against women and to ensure public authorities and institutions act accordingly. This positive duty, the Committee explained,

encompasses the obligation … to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party: if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention.

The Committee further explained that ‘[t]he foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later’. It clarified that

[w]hat amounts to serious forms of gender-based violence will depend on the circumstances of each case and would need to be determined by the Committee on a case-by-case basis at the merits stage, provided that the author had made a prima facie case before the Committee by sufficiently substantiating such allegations.

Ultimately, however, the Committee concluded that Y.W. had not sufficiently substantiated her claim that she would be subjected to gender-based violence, if deported to China, and would not receive adequate protection from Chinese authorities. It also emphasised that Y.W. had never sought protection from Chinese authorities.

Access to justice in relation to asylum claim

The Committee recalled its General Recommendation No. 32, in which it affirmed that articles 1-3, 5(a) and 15 of CEDAW require States Parties to ensure women are not discriminated against during any aspect of the asylum process. It further recalled that States Parties should apply a gender-sensitive approach at every stage of the asylum process and ensure women denied asylum are subjected to dignified and non-discriminatory return processes.

Ultimately, however, the Committee concluded that Y.W. had not sufficiently substantiated her claim that she had been discriminated against in seeking access to justice. In this connection, it noted that Y.W. had not informed it of her whereabouts and whether or not she had been deported to China. It further noted the absence of any other pertinent information on file.

Communication No. 51/2013, UN Doc. CEDAW/C/60/D/51/2013 (2015)

Decision

Failure to provide effective protection against rape and sexual assault violated CEDAW (V.P.P. v. Bulgaria)

 

This post discusses rape and sexual assault and may be considered psychologically triggering

V.P.P., a minor, was sexually assaulted by B.G., an adult man who lived in a neighbouring apartment building.  Bulgarian authorities waited two years before indicting B.G. for “sexual molestation of a minor”.  The District Court approved a plea bargain agreement that B.G. receive a three-year suspended sentence for pleading guilty.  B.G. continued to live next door to V.P.P. following the assault and no action was taken to ensure the ongoing safety of V.P.P.

The District Court rejected a request to file a civil claim for moral damages and a separate successful tort suit for 15,000 euros could not be executed with the mechanisms available under Bulgarian law. 

S.V.P. submitted a communication under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) on behalf of her daughter claiming that Bulgaria had violated articles 1, 2(a)-2(c), 2(e)-2(g), 3, 5, 12 and 15 of CEDAW.  She claimed that Bulgaria had failed to:

  • act with due diligence to protect V.P.P. against sexual assault;
  • provide an effective remedy and address the health, rehabilitative and other needs of V.P.P.;
  • provide V.P.P. ongoing protection from B.G.; and
  • introduce specific legal and policy measures and health services to address violence against women and girls.

S.V.P. also claimed that Bulgaria’s response to her daughter’s assault reflected gender stereotypes related to violence against women and girls.  

Admissibility

Bulgaria did not contest the admissibility of the communication and the CEDAW Committee found no reason to declare the communication inadmissible. 

Bulgaria’s observations on the merits

Bulgaria submitted that it had not violated CEDAW as its courts had adjudicated V.P.P’s case in accordance with national law and B.G. was found guilty of sexually molesting V.P.P.  Bulgaria also noted that its legislature had since strengthened protections against sexual assault.

CEDAW Committee’s views

The Committee held the State Party accountable under articles 1, 2(a)-2(c), 2(e)-2(g), 3, 5, 12 and 15 of CEDAW for its inadequate legal protections against sexual violence and failure to exercise due diligence in relation to the sexual assault of V.P.P.  In so holding, the Committee affirmed that CEDAW require States Parties to prohibit and eliminate discrimination against women and girls, including gender-based violence, and exercise due diligence to prevent, investigate, punish and remedy acts of sexual violence by non-state actors. 

The Committee identified a number of instances where Bulgaria fell short of its obligations under CEDAW, including its failure to:

  • adopt criminal laws to punish rape and sexual violence effectively and classify sexual assault of a minor as a “serious” offence;
  • charge B.G. with rape or attempted rape, despite evidence of anal penetration by a bodily part and attempted rape;
  • indict B.G. in a timely manner and its decision to approve a plea bargain agreement that left V.P.P. without a remedy and resulted in a sentence considerably less than the prescribed maximum;
  • refrain from gender stereotyping in its sexual violence laws;
  • introduce mechanisms (e.g., protection orders) to protect against re-victimisation and ensure the safety of V.P.P.; and  
  • ensure V.P.P. received adequate compensation for her pain and suffering. 

The Committee was also critical of Bulgaria’s failure to introduce and apply healthcare policies and procedures on sexual violence and ensure V.P.P. was able to access appropriate healthcare services.  In finding a violation of article 12, the Committee recalled that

gender-based violence is a critical health issue for women and that States parties should ensure: the enactment and effective enforcement of laws and the formulation of policies, including health-care protocols and hospital procedures to address violence against women and abuse of girl children and the provision of appropriate health services; and gender-sensitive training to enable health-care workers to detect and manage the health consequences of gender-based violence. 

Lastly, the Committee was critical of Bulgaria’s failure to establish “a reliable system for effective compensation of the victims of sexual violence” and a legal aid scheme to ensure the enforcement of compensation orders.  The Committee explained that article 15 of CEDAW

embodies the principle of equality before the law, and that under this article, the Convention seeks to protect women’s status before the law, be it as a claimant, a witness or a victim, and that the above includes the right to adequate compensation in cases of violence including sexual violence.

Recommendations

The Committee recommended that Bulgaria provide reparation to V.P.P.  It also urged the State Party to adopt a number of structural recommendations, including ensuring that offenses related to sexual violence are consistent with international standards and are effectively investigated, prosecuted and remedied. 

UN Doc. Communication No. 31/2011, CEDAW/C/53/D/31/2011 (24 November 2012)

 Decision

 

Domestic violence asylum claim inadmissible (M.P.M. v. Canada)


M.P.M., a Mexican national, sought asylum in Canada in 2006.  M.P.M. claimed that she was entitled to asylum because she is a victim/survivor of domestic violence and was seeking to escape her abusive ex-husband, a Mexican police officer.

Canadian authorities dismissed M.P.M.’s claim on the basis that she had failed to establish that she was a refugee, within the meaning of the Convention relating to the Status of Refugees.  Authorities concluded that M.P.M. had falsely claimed to be a victim/survivor of domestic violence in order to obtain asylum in Canada and failed to provide credible and consistent evidence to support a claim of asylum.  An application for judicial review and a separate application for a pre-removal risk assessment were also dismissed.

M.P.M. did not file an application to prevent her deportation on humanitarian and compassionate grounds because of the low success and cost of such applications.  In addition, she believed that Canadian authorities would dismiss such an application, since it would be based on the same arguments included in her previous unsuccessful applications.

M.P.M. subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (Committee) in which she claimed, inter alia, that there were substantial grounds for believing that her life and safety were at real risk if deported to Mexico.  M.P.M. submitted that Canada had violated articles 2(c), 2(d) and 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by discriminating against her in her asylum claim and failing to ensure equal protection of her rights.  In addition, she submitted that the failure of Canadian authorities to take her vulnerable situation fully into account constituted a violation of article 15 concerning equality in legal and civil matters.  M.P.M. also claimed that Canada had violated article 16 of equality in marriage and family relations, but she failed to identify the basis of that claim.

M.P.M. returned to Mexico voluntarily in 2010 after submitting her communication to the Committee.

Canada’s observations on admissibility

Canada challenged the admissibility of the communication under articles 4(1), 4(2)(b) and 4(2)(c) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).

First, it claimed that the voluntary return of M.P.M. to Mexico rendered her claim that Canada would violate her rights in CEDAW if it deported her to Mexico moot.  Second, it claimed M.P.M. had not exhausted all available domestic remedies and had failed to raise the substance of her claim of sex discrimination before national authorities, as required by article 4(1) of the Optional Protocol.  Third, similar to its arguments in Guadalupe Herrera Rivera v Canada, the State Party argued that the communication was incompatible under article 4(2)(b) of the Protocol, as the aforementioned provisions of CEDAW do not guarantee a right not to be deported and CEDAW does not apply extraterritorially.  Fourth, Canada claimed that its authorities had determined that there was no merit to M.P.M.’s claim and she had failed to submit new evidence to the Committee to support her claim.  Last, Canada claimed that the failure of M.P.M to demonstrate that its system for processing asylum claims was ineffective rendered her communication insufficiently substantiated under article 4(2)(c) of the Protocol.

Committee’s admissibility decision

The Committee concluded that the communication was ill-founded and not sufficiently substantiated and, thus, declared it inadmissible under article 4(2)(c) of the Optional Protocol.  In doing so, it noted the voluntary return of M.P.M. to Mexico, her failure to explain her return to the Committee or follow-up her communication, the absence of any reports of violence since her return to Mexico, and her failure to provide new evidence to the Committee to substantiate her claim.  Having declared the communication inadmissible on this basis, the Committee declined to consider Canada’s other objections to the admissibility of the communication.

Communication No. 25/2010, UN Doc. CEDAW/C/51/D/25/2010 (13 April 2012)

Decision 

* This summary was prepared using an unofficial English translation of the decision.  Please check against the Committee’s decision for accuracy.