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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CEDAW Committee declares domestic violence asylum communication inadmissible (S.O. v. Canada)

S.O. claimed she was subjected to domestic violence in Mexico in 2008-2009 and that police took no action to protect her each time she reported the violence. She later left Mexico, when her lawyer told her she could not obtain protection in Mexico. After S.O. left, her abusive partner contacted her family and friends to find out where S.O. was and assaulted her mother when she refused to disclose S.O.’s whereabouts.

In 2011, S.O. applied for refugee protection in Canada on the grounds that she would face a real, personal and foreseeable risk of serious forms of gender-based violence, if returned to Mexico. Canada undertook a pre-removal risk assessment, a procedure used when an applicant has applied for refugee protection previously.

In December 2012, Canada rejected S.O.’s application. It did not dispute that S.O. was a victim of domestic violence and had sought protection from Mexican authorities. However, it concluded that she had a reasonable internal flight alternative within Mexico and had failed to show that she was unable to live apart from her abusive former partner in another part of the country.

In January 2013, S.O. applied to the Federal Court for leave to seek judicial review of the decision, claiming that an internal flight alternative was not an aspect of state protection. She also filed a motion to stay her removal, while the judicial review was pending. In February 2013, the Federal Court dismissed the motion to stay the removal, concluding that the finding of an internal flight alternative was within the spectrum of possible conclusions, in light of the facts and law in the case. In June 2013, the Court dismissed the application for leave to seek judicial review without reasons.

In February 2013, S.O. submitted an individual communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed that her deportation to Mexico would constitute a violation by Canada of articles 1 to 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with the Committee’s General Recommendation No. 19. Among other things, S.O. claimed that: she would be subjected to domestic violence, if deported; Mexican authorities had previously failed to protect her against such violence; and her claim for protection was denied based on the erroneous assessment that protection for gender-based violence victims is available if she relocated to another part of Mexico.

In March 2013, the Committee granted S.O’s request for interim measures and requested the State Party not to deport her while the case was pending.

State Party’s observations on admissibility

The State Party contested the admissibility of the communication of three grounds.

Firstly, it claimed that S.O. had failed to exhaust all available domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Specifically, it noted that S.O. had failed to apply for permanent residence on humanitarian and compassionate grounds.

Secondly, it claimed that CEDAW does not contain an obligation of non-refoulement and disputed the Committee’s interpretation of CEDAW in M.N.N. v. Denmark to the effect that this obligation can be included in the treaty. It therefore submitted that S.O.’s claim that Canada has an obligation of non-refoulement is incompatible with CEDAW, pursuant to article 4(2)(b) of the Protocol.

Thirdly, it claimed that the communication was manifestly ill-founded or S.O. had not sufficiently substantiated her claim that she would face risk of torture or risk to life, if returned to Mexico.

Committee’s decision on admissibility

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

Sufficiently substantiate claim

The Committee determined that S.O. had failed to sufficiently substantiate her claim that her removal from Canada to Mexico would expose her to a real, personal and foreseeable risk of serious forms of gender-based violence and therefore violate articles 1 to 2 of CEDAW, read with General Recommendation No. 19. It explained that S.O. had not provided sufficient information to show, for the purposes of admissibility:

  • that she would face a real, personal and foreseeable risk of serious forms of gender-based violence, if deported to Mexico
  • why she could not relocate within Mexico, if she had to leave her home city to avoid further violence by her former partner
  • what remedies she pursued in Mexico after unsuccessfully filing complaints with the police.

The Committee further determined that S.O. had not explained why and how she considers the State Party violated her rights under article 3 of CEDAW.

Although finding the communication inadmissible, the Committee also made comments in respect of two other inadmissibility grounds.

S.O. had exhausted domestic remedies

The Committee concluded that S.O. had exhausted all available domestic remedies when she sought a stay of deportation and judicial review of the negative pre-removal risk assessment before the Federal Court. While noting the possibility of applying for permanent residence on humanitarian and compassionate grounds, the Committee concluded that it was not necessary to do so to satisfy the exhaustion requirement, as doing so would not halt S.O.’s deportation.

The complaint was compatible with, and covered by, CEDAW

The Committee rejected the State Party’s argument that CEDAW does not contain an obligation of non-refoulement. It stressed that, under article 2(d), States Parties must refrain from discriminating against women and ensure public authorities and institutions act accordingly. Recalling it jurisprudence, it further stressed that article 2(d) requires States Parties to protect women against a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether it would occur outside territorial boundaries. Additionally, the Committee recalled that gender-based violence is a form of discrimination against women. However, it affirmed that what amounts to serious forms of gender-based violence triggering the protection afforded under article 2(d) depends on the circumstances of each case and needs to be determined by it on a case-by-case basis at the merits stage.

Communication No. 49/2013, UN Doc. CEDAW/C/59/D/49/2013 (2014)

Decision

Failure to prevent loss of ownership of property a violation of CEDAW (Cecilia Kell v Canada)


Cecilia Kell via CBC NewsIn 1990, William Senych applied for housing without the knowledge of his common law partner, Cecilia Kell, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada.  Senych’s application was denied because he was not a member of the Rae-Edzo community for which the housing was earmarked. 

On the advice of a Tenant Relations officer at the Rae-Edzo Housing Authority, Kell then applied for housing, listing Senych as her spouse.  In 1991, the N.W.T. Housing Corporation issued an Agreement for Purchase and Sale to Kell and Senych as co-owners of the property.  Senych subjected Kell to domestic violence, including economic abuse, over the subsequent three-year period.     

In 1993, following a request from Senych and without Kell’s knowledge, the N.W.T. Housing Corporation (on instruction from the Rae-Edzo Housing Authority) removed Kell’s name from the Assignment of Lease, the document that certified co-ownership.  The removal had the effect of making Senych the sole owner of the property.  Senych was a board member of the Housing Authority at the time of his request.  

In 1995, Senych changed the locks and denied Kell access to the property.  He subsequently sought to evict her while she sought protection in a shelter.

Kell filed proceedings against Senych in the N.W.T. Supreme Court seeking compensation for assault, battery, sexual assault, intimidation, trespass to chattels, loss of use of her home and consequential payment of rent and attendant expenses.  She also filed a declaration that Senych had obtained the property fraudulently, aided and abetted by the N.W.T. Government.  Kell was assigned a legal aid lawyer, who advised her to comply with the letter of eviction and did not challenge the letter’s validity.

Shortly thereafter, Senych was diagnosed with cancer, at which time Kell’s lawyer advised her to delay proceedings.  Senych later died, following which Kell’s lawyer initiated proceedings against his estate, the N.W.T. Housing Corporation and another person.  A replacement legal aid lawyer added a claim for damages for assault and intimidation. 

In 1999, Senych’s estate and the Housing Corporation offered Kell a monetary settlement.  During negotiations, Kell’s case was twice reassigned to new lawyers.  Both insisted that Kell settle.  She refused, however, as her key concern was regaining the property.  Following her refusal, Kell’s lawyer ceased acting on her behalf.  Kell’s case was only re-assigned to a new lawyer after she appealed to the Legal Services Board.

The Supreme Court dismissed both proceedings for “want of prosecution.”  Costs were imposed against Kell and subsequent appeals were unsuccessful. In 2004, Kell filed a third action related to her interest in and right to the leasehold title and possession of the property.  The property had then been sold and the Court dismissed the matter.    

Kell subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that Canada had violated articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  Kell claimed that Canada had allowed its agents – the N.W.T. Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and had failed to ensure that its agents provide equal treatment to female housing applicants.  Kell noted, in particular, Canada’s failure to prevent and remedy the fraudulent removal of her name from the Assignment of Lease and the failure to ensure that its agents afford women and men equal rights in respect of ownership, acquisition, management, administration and enjoyment of property.

Canada’s observations on admissibility

Canada alleged that the communication was inadmissible ratione temporis under article 4(2)(e) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  It claimed that the removal of Kell from the Assignment of Lease occurred prior to the Protocol’s entry into force for Canada.  It also claimed that the communication was inadmissible because Kell had failed to exhaust domestic remedies (art. 4(1)), specifically she had failed to raise the substance of her claim before domestic authorities and had not availed herself of all appeal routes.  Finally, Canada disputed admissibility on the basis that the communication was manifestly ill-founded and not sufficiently substantiated (art. 4(2)(c)). 

CEDAW Committee’s admissibility decision

A majority of the CEDAW Committee declared the communication admissible.  In finding the communication admissible ratione temporis, the Committee noted that, although the removal of Kell’s name from the Assignment of Lease occurred prior to the Protocol’s entry into force date, the effect of the removal was ongoing and her claim was already pending before domestic courts.  In relation to the exhaustion of domestic remedies requirement, the Committee expressed the view that even if domestic remedies had not been exhausted, the application of such remedies was unlikely to bring Kell effective relief.  The Committee concluded that Kell had sufficiently substantiated her claim of discrimination and noted that she had filed proceedings in domestic courts that included claims of sex discrimination, domestic violence, and eviction from property and land.

Canada’s observations on the merits

Canada contested Kell’s claim of discrimination.  It maintained that Senych might have perpetrated a fraud by abusing his position within the Housing Authority, but that this abuse could not be attributed to the state or its agents as an act of discrimination.  More generally, it argued that Kell had failed to provide sufficient evidence to support her alleged claims under CEDAW.    

Views

The Committee found that Canada was responsible for Kell losing ownership of the property, in violation of articles 2(d), 2(e), and 16(1)(h) of CEDAW, read with article 1.  However, it found that Canada had not violated articles 14(2)(h) or 15(4), as there was no evidence Kell had been discriminated against as a rural woman or prevented from residing in another property in the community.  Committee member Schulz dissented.

Intersectional discrimination (arts 1, 2)

The Committee found that Kell was a victim of intersectional discrimination based on her status as an Aboriginal woman who was also a victim/survivor of domestic violence.  The Committee based its decision on the removal of Kell from the Assignment of Lease, Kell’s loss of her share in the house (which was only possible with action or inaction by the N.W.T. Housing Corporation, an agent of the state), and the failure of the Housing Corporation to inform Kell that her property rights had been annulled without her consent.  The Committee also based its decision on the eviction of Kell while she sought protection in a shelter against domestic violence and the failure of Kell’s legal aid lawyers to challenge the validity of the eviction. 

General obligations of states (arts 2(d), 2(e))

The Committee concluded that Canada’s failure to refrain from, and provide effective remedies to address, discrimination constituted a violation of states’ general obligations in articles 2(d) and 2(e) of CEDAW.  The Committee condemned Canada’s failure to prevent the removal of Kell’s name from the Assignment of Lease and the reassignment of Kell’s share to her partner.  It also condemned Canada’s failure to ensure that its agents declared the new Assignment of Lease, which excluded Kell, null and void.  The Committee also noted, inter alia, that the alternative accommodations Canada’s agents had offered Kell in settlement were for rent and not ownership and were smaller in size than the property she had been deprived of.  The Committee condemned the discriminatory actions of the legal aid lawyers assigned to Kell’s case, noting that they had impaired her ability to seek redress and obtain effective remedies.

Equal rights in respect of property (art 16(1)(h))

The Committee based its finding of a violation of the right to equality in respect of property on: the failure to prevent the eviction of Kell while she was seeking protection in a domestic violence shelter; the failure to take Kell’s contribution to the property into account or inform her before it removed her name from the Assignment of Lease; and its advise to Kell that Senych’s application would be considered if her name was added.

Recommendations

The Committee recommended that Canada compensate Kell and provide her with appropriate housing.  It also recommended recruiting and training more Aboriginal women to provide legal aid and reviewing the legal aid system to ensure Aboriginal women who are victims/survivors of domestic violence have effective access to justice. 

Communication No. 19/2008, UN Doc. CEDAW/C/51/D/19/2008 (26 April 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.