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

Deportation of domestic violence survivor communication inadmissible (Guadalupe Herrera Rivera v. Canada)

 

In 2006, Guadalupe Herrera Rivera (GHR), a Mexican national, claimed asylum in Canada, along with her then husband and their two minor children.  Canadian authorities denied the claim on the basis that it lacked credibility.

In April 2008, GHR, a long-term survivor of domestic violence, reported a violent incident to Montreal police.  Following the incident, she separated from her husband and took refugee in a domestic violence shelter.

In July 2008, the Federal Court of Canada dismissed an application for judicial review of the decision to deny the claim for asylum.

In October 2008, ‘Assistance aux femmes’, acting on behalf of GHR, filed applications with Immigration Canada for a pre-removal risk assessment (PRRA) and on humanitarian and compassionate (H&C) grounds.  The H&C grounds application included information about GHR’s experiences of domestic violence, the inadequate protection in Mexico against such violence, and the risk of GHR experiencing further violence if deported to Mexico.

In November 2008, GHR’s husband threatened to kill her and commit suicide if she failed to return to Mexico with him.  Police immediately detained him and had him undergo a psychiatric evaluation.  A month later, he contacted the refugee where GHR was staying, claiming to be a family friend and alleging that GHR was not a victim/survivor of domestic violence.

In January 2009, Canada deported GHR’s husband to Mexico, where he was seen watching GHR’s home on many occasions.  GHR later divorced her husband and gained legal custody of their children.  

In April 2009, Canadian authorities dismissed GHR’s PRRA application, including on the basis that she had failed to prove that Mexican authorities were unable to protect her effectively against domestic violence.

Her H&C grounds application was dismissed in October that same year.  Reasons for the dismissal included that Mexico had enacted new laws to protect women against violence and the author could live elsewhere in Mexico or seek refuge in a shelter.  An application for leave to initiate judicial review was denied and, in November 2009, the Federal Court of Canada ordered a stay of removal.

In June 2010, GHR submitted a second PRRA application.

In September 2010, GHR submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) claiming that, if Canada deported her to Mexico, it would violate her rights under articles 1, 2(a)-2(d), 5(a) and 24 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  GHR requested interim measures to prevent Canada from deporting her to Mexico while her communication was pending before the CEDAW Committee.

Canada’s observations on admissibility

Canada challenged the admissibility of the communication on three grounds.

Incompatible with CEDAW

First, Canada claimed that the communication was incompatible with CEDAW and, therefore, inadmissible under article 4(2)(b) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).

It submitted that the CEDAW Committee lacked jurisdiction to consider the communication because GHR was seeking to apply the obligations under CEDAW in an extraterritorial manner.  According to the State Party, the alleged violations concerned Mexico and not Canada, and it could not ‘be held responsible for discrimination in the jurisdiction of another State, even if the author could establish that she would be subject to discrimination … due to gender-based violence in Mexico.’  Canada submitted that, in contrast to the obligations in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and articles 6 and 7 of the International Covenant on Civil and Political Rights, CEDAW

does not deal directly (or indirectly) with removal to torture or other serious threats to life and the security of the person.  The author may only bring a communication concerning Canada related to alleged violations under the Convention committed by and under the jurisdiction of Canada…

Manifestly ill-founded and not sufficiently substantiated

Second, Canada submitted that the communication was manifestly ill-founded and not sufficiently substantiated and should be declared inadmissible under article 4(2)(c) of the Optional Protocol.  It claimed that GHR had failed to show that Canada’s decision to deny her asylum was ‘due to a failure to pursue a policy of eliminating discrimination against women in Canada (art. 2 of the Convention)….’  It further claimed that GHR had not provided any evidence that

the processing of her immigration case was in any way shaped by, or the result of, a failure by Canada ‘to modify the social and cultural patterns of conduct of men and women’ in order to eliminate prejudices and practices based on discriminatory ideas against women (art. 5(a)) or of a further failure to adopt all necessary measures at the national level aimed at achieving the rights in the Convention (art. 24).

Failure to exhaust domestic remedies

Last, Canada claimed that GHR had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol.  Canada submitted that GHR could have sought leave to apply for judicial review of the negative PRRA application, which was dismissed in April 2009.  It further submitted that GHR’s second PRRA application, which included new information related to her situation of domestic violence, was still pending.  Canada reasoned that if the author is successful in her second PRRA application, ‘she would become a protected person, and could apply for permanent residence status and ultimately citizenship.  If she were unsuccessful, she could then seek leave to apply for judicial review of the negative decision….’

Committee’s admissibility decision

The CEDAW Committee determined that Guadalupe Herrera Rivera had failed to exhaust domestic remedies and, on that basis, declared the communication inadmissible under article 4(1) of the Optional Protocol.  It reasoned that GHR had failed to seek leave to apply for judicial review of the second PRRA application, which was dismissed by the time her communication reached the Committee for determination, and that a favourable review decision could effectively stop her deportation to Mexico.

Having declared the communication inadmissible for failure to exhaust domestic remedies, the Committee declined to consider the remaining grounds of inadmissibility.

Communication No. 26/2010, UN Doc. CEDAW/C/50/D/26/2010 (30 November 2011)

Decision