Thursday Thinkpiece: Mouris on Canada’s International Human Rights Obligations to MMIW
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Julie Mouris, J.D./M.A. (International Affairs) Candidate, 2015 | University of Ottawa / Carleton University
(2014) 1 Windsor Rev Legal Soc Issues — Digital Companion 32
Excerpt: Parts I and II
[Footnotes omitted. They can be found in the original via the link above]
PART I: MISSING AND MURDERED ABORIGINAL WOMEN
A.The Sisters in Spirit Initiative: Diagnosing the Problem
Beginning in the 1980s, Aboriginal communities across Canada began voicing their concerns about missing and murdered Aboriginal women. In 2004, NWAC launched the Sisters in Spirit campaign to address this ongoing violence. As part of the campaign, NWAC sought help from a range of federal government departments to address the issue. In 2005, the Ministry of Status of Women Canada agreed to fund the Sisters in Spirit initiative for five years. With this funding, NWAC created a database of missing and murdered Aboriginal women across Canada. The final report was released in 2010.
The findings of the report are striking. As of March 31, 2010, the initiative had documented 582 cases of missing and murdered Aboriginal women across Canada, with the caveat that “it is believed the scope of this violence is far greater than what has been documented”. Of the 582 cases, 393 involved death as a result of homicide or negligence, 115 involved missing women and girls, twenty-one involved suspicious deaths, and fifty-three were cases of an unknown nature—it was unclear whether the women had died, were missing, or were murdered. Almost half of the murder cases remained unsolved, a statistic that is “dramatically different from the average clearance rate for homicides in Canada, which was reported by Statistics Canada at 84% in 2005”.
Of the 393 cases involving death as a result of homicide or negligence, in 234 instances,the location of the victim was known. Of these 234 cases, fifty-nine percent of Aboriginal women were found in their residential dwelling, suggesting a link with family violence. In fifteen percent of cases, the violence happened in an open area, like a field. In fourteen percent of cases, the violence took place on a street, road, or highway.
NWAC reports 261 cases where information is known and charges were laid. Of the 261 cases, twenty-three percent of the accused offenders were the victim’s current or ex-partner, seventeen percent were acquaintances, and 16.5 percent were strangers with no connection to the woman. Based on this research, NWAC found that Aboriginal women in Canada were almost three times more likely to be killed by a stranger than non-Aboriginal women. As for cases of missing Aboriginal women, in over seventy percent of cases, women went missing from an urban area, twenty percent from a rural area, and seven percent from a reserve.
NWAC also looked into the link between prostitution and disappearance or death, given the high levels of vulnerability to violence women in the sex trade face. Information was only known about the women’s involvement in prostitution for 149 cases. In about half of the 149 cases, the women were not involved in the sex trade, in contrast to fifty-one cases where they were. In a further twenty-four cases, there was insufficient evidence to substantiate claims of involvement in the sex trade. Regardless, NWAC emphasized that prostitution itself “is not a cause of disappearances or murders; rather, many women arrive at that point in the context of limited options and after experiencing multiple forms of trauma or victimization.”
These “multiple forms of trauma or victimization” are common to many missing and murdered Aboriginal women—not just sex trade workers—and speak to the many underlying causes of violence against these women. While there are many underlying causes of violence against Aboriginal women, “colonization remains the constant thread connecting the different forms of violence against Aboriginal women in Canada”. Aboriginal peoples have identified historic colonialist policies, such as the residential school system, as a root cause of violence in their communities. Amnesty International also identifies a number of current factors that contribute to the heightened risk of violence against Aboriginal women: the marginalization of Aboriginal women, police failure to provide adequate protection, and racist motivations, or the expectation of impunity. Although intensive analysis of the underlying causes of violence is beyond the scope of this paper, the police’s responsibility for missing and murdered Aboriginal women is considered in the next section.
B. The Role of Police and Problematic Investigations
There are a number of problems with police investigations of missing and murdered Aboriginal women in Canada. First, nearly half of the murder cases involving Aboriginal women remain unsolved. Second, police data do not consistently identify whether victims of violence have Aboriginal status, and if they are First Nations, Métis or Inuit. For example, Statistics Canada’s annual Homicide Survey asks police to record the number of Aboriginal victims and persons charged. NWAC found that:
[S]ome police agencies…refused to collect or report the data, arguing that collection of such information contravenes internal policy, that the information is not needed for the agency’s own purposes, or that police officers find it impractical, uncomfortable or insensitive to ask individuals about their cultural background.
While these may be legitimate concerns, they preclude collecting comprehensive statistics that could help determine the scope of the problem. Further, NWAC consulted ten Aboriginal communities across Canada to see if they would be amenable to the Committee collecting information about Aboriginal identity. The consulted communities agreed, provided the questions are framed in a culturally sensitive manner.
Another problem is that many police forces do not have protocols for when Aboriginal women are reported missing. There are stories of police failing to take basic steps, such as interviewing family and friends in a timely manner after the report of a missing person. Further, “overlapping and unclear jurisdictional areas of the RCMP, First Nations, municipal and provincial police forces has impeded effective resolution of some cases”. Families who report missing persons have sometimes been sent back and forth between police forces.
Finally, police mistrust is a persistent problem. Reports of abusive policing of Aboriginal peoples, and research indicating “police often stereotype missing Aboriginal girls and act based on those stereotypes”, add to Aboriginal peoples’ lack of confidence in police services. This mistrust is especially troubling for women in the sex trade, as they may be hesitant to report violent attacks to police, due to the threat of arrest for engaging in prostitution.
These issues indicate systemic problems within police practices, and arguably contribute to the issue of missing and murdered Aboriginal women. In the next section, I turn to international human rights law, outlining Canada’s obligations to protect Aboriginal women from violence.
PART II: APPLICABLE INTERNATIONAL HUMAN RIGHTS LAW
This section examines international human rights law triggered by missing and murdered Aboriginal women in Canada. From the outset, I focus on two treaties, to which Canada is a party: the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women. I discuss Commentary by the Human Rights Committee and the Convention Committee (the “Committee”), as well as relevant jurisprudence, to provide insight into Canada’s obligations arising under the ICCPR and the Convention. Finally, I examine the importance of the United Nations’ (the “UN”) Declaration on the Rights of Indigenous Peoples.
A. The International Covenant on Civil and Political Rights
In 1976, the ICCPR came into force, and was acceded to by Canada. Pursuant to article 9 of this multilateral treaty, disappearances violate the right to liberty and security of the person. Pursuant to article 6(1), the inherent right to life is contravened in cases of murder, and where disappearance leads to death. The Human Rights Committee, the oversight body to the ICCPR, clarified the scope of a state’s obligation to protect the right to life with respect to disappearances in General Comment No 6:
States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.
The Human Rights Committee urges signatories to thoroughly investigate existing cases of missing persons, and pre-emptively enact protocols that prevent disappearances. While the Human Rights Committee’s General Comment No 6 is non-binding, it provides useful guidance in interpreting the right to life provisions that relate to disappearances.
Article 2 of the ICCPR is also relevant. It provides that each state party will “respect and ensure” ICCPR rights to individuals within its territory and jurisdiction, without distinction. Enumerated rights include race, colour,and sex. Each state party must provide effective remedies for rights violations. The Human Rights Committee refers to article 2 as encompassing a “due diligence” obligation. The due diligence obligations involves preventing, punishing, investigating, or redressing the harm committed by private persons or entities who have violated ICCPR rights. The Human Rights Committee reminds signatories “of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2[(3)]”.
Finally, article 26 of the ICCPR provides that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” In the case of missing and murdered Aboriginal women, entitlement to equal protection of the law without discrimination is relevant. The police play a crucial role in protection, prevention, and investigation; yet, issues relating to unequal treatment of Aboriginal women by Canadian police forces remain.
B. The Convention on the Elimination of All Forms of Discrimination against Women
Another Canadian obligation under international law is the Convention. Canada ratified the Convention in 1981, the same year the treaty came into force. The Convention focuses on discrimination against women, and does not have express provisions on violence. However, in General Recommendation No 19, the Committee extended the article 1 definition of “discrimination against women” to include gender-based violence. In this broader definition,the right to life, liberty and security of the person is protected. General Recommendation No 19 is not binding, and thus neither is the expanded definition of discrimination. Regardless, the Committee’s justification that gender-based violence “seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men”, is compelling. General Recommendation No 19 is also the most frequently cited of the Committee’s recommendations, nationally and internationally.
The Convention contains a two-pronged obligation in relation to discrimination. Article 2 mandates that states condemn discrimination against women. Article also compels states,
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person,organization or enterprise
In the case of missing and murdered Aboriginal women, police forces must refrain from discriminating against women, and take measures to eliminate discrimination by private persons—the due diligence obligation. The Committee confirmed this two-pronged obligation in General Recommendation No 19:
It is emphasized, however, that discrimination under the Convention is not restricted to action by or on behalf of Governments (see articles 2 (e), 2 (f) and 5)…Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.
The mention of compensation is important, given that the Convention itself does not discuss remedies. In General Recommendation No 19, the Committee recommends in cases of gender-based violence that “[e]ffective complaints procedures and remedies, including compensation, should be provided”. In the following subsections, I examine Committee cases concerning remedies. I discuss the relevance of these remedies to the Canadian context in Part IV.
C. Convention Jurisprudence: The Remedy of Systemic Measures
In 2007, two Committee cases dealt with remedies for state failure to protect women against violence, Goekce v Austria, and Yildirim v Austria. The two cases involved similar facts: both women were killed by their husband after a pattern of physical abuse, and both women sought assistance several times from law-enforcement agencies and courts. Two non-governmental organizations (“NGOs”) brought these cases to the Committee on behalf of family members of the women.
In Goekce v Austria, Şahide Goekce was in contact with police over a three-year period about her physically abusive husband. She obtained a three-month injunction prohibiting him from entering the family apartment. This injunction, and a weapons prohibition, was in effect at the time of her death. Despite the orders, her husband acquired a handgun, and a few weeks later, shot Ms. Goekce in her apartment. A few hours before she was killed, Ms. Goekce telephoned the emergency call service, but no patrol car was sent. The Committee concluded that “the police knew or should have known that Şahide Goekce was in serious danger; they should have treated the last call from her as an emergency”, and that “the police are accountable [for] failing to exercise due diligence to protect [her]”.
In Yildirim v Austria, Fatma Yildirim took numerous measures to increase her safety from her physically abusive husband. These measures included: moving out of their apartment, establishing ongoing communication with police, seeking an injunction, and authorizing the prosecution of her husband. Despite Ms. Yildrim taking these protective steps, the public prosecutor denied police requests to arrest Ms. Yildrim’s husband. The Committee determined that authorities knew, or should have known, that Ms. Yildirim was in extreme danger. By failing to detain Mr. Yildirim the state breached its due diligence obligation to protect Ms.Yildirim.
In both cases, the Committee noted the state party had “established a comprehensive model to address domestic violence that includes legislation, criminal and civil-law remedies, awareness-raising, education and training, shelters, counseling for victims of violence and work perpetrators.” However, the Committee stressed that the realization of these women’s rights required the political will of state actors to satisfy their due diligence obligations. The Committee recommended numerous measures that would address the systemic problems within Austria’s “comprehensive model”. Recommendations included faster prosecutions of perpetrators of domestic violence, better coordination amongst law enforcement officials and NGOs working with victims of gender-based violence, and strengthening training programs on domestic violence for those officials.
D. Convention Jurisprudence: The Remedy of Compensation
The remedy of compensation arose in VPP v Bulgaria, a case decided by the Committee in 2012. This case involved a seven-year-old girl who was sexually assaulted by a man in her neighbourhood. The perpetrator was given a suspended sentence through a plea-bargain agreement, but the agreement “did not award compensation for the pain and suffering suffered by the victim”. The Committee recalled the obligation to provide compensation in General Recommendation No 19, and found the victim had not received adequate monetary compensation. They also found the state party’s legal mechanisms inadequate to ensure that she would receive compensation. The Committee recommended the state party provide reparation to the victim. The Committee also held,
[A]rticle 15 of the Convention 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.
The inclusion of “witness” is relevant to families of missing and murdered Aboriginal women who may seek compensation in Canada on the victim’s behalf.
In arriving at their conclusion, the Committee considered state obligations with respect to gender-based violence. The Committee emphasized that “[s]tate parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act.” The Committee also referred to the due diligence obligation in article 2(e) of the Convention, whereby state parties can be found responsible for private acts of violence, if they fail to prevent, investigate, and punish those acts.
E. The UN Declaration on the Rights of Indigenous Peoples
The Declaration was adopted by the UN General Assembly on September 13, 2007. The draft process involved UN agencies, as well as Aboriginal peoples. The Declaration was adopted with 144 states voting in favour, and four states—including Canada—voting against. However, on November 12, 2010, Canada endorsed the Declaration. While the Declaration is non-binding, “there is an expectation that Canada, and all other States, will work to ensure that our laws and policies uphold the rights set out in the UN Declaration”. Further, Canadian courts may look to such declarations when interpreting human rights.
Article 22(2) of the Declaration provides that, “[s]tates shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.” It follows that states should work in concert with Aboriginal peoples, rather than unilaterally, to ensure full protection against violence and discrimination. This provision also draws a nexus between violence and discrimination, expanding the purview of the Declaration. Amnesty International considers this connection crucial to understanding the issue of missing and murdered Aboriginal women.
This section has explored the various international commitments, such as the ICCPR, the Convention, and the Declaration that are invoked in the protection of Aboriginal women from violence. These are commitments that Canada has attached its name to, and that Canada is
currently failing to uphold. States can be held accountable for failure to fulfill these obligations, as the cases of Goekce v Austria, Yildirim v Austria, and VPP v Bulgaria demonstrate. In the next section, I discuss reports documenting Canada’s neglect of the issue of missing and murdered Aboriginal women, and further develop the extent of Canada’s failure to fulfill its international obligations.
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