R. v. Arcand, Canada, Court of Appeal of Alberta , 2010.
The complainant was raped by the accused, a distant relative, while unconscious in her home. Prior to the incident, out of kindness, the complainant had taken the accused to her home and had offered to let him stay with her. Just before the assault, the two were sitting on a bed talking, drinking, and watching television. The complainant then passed out, and she awoke to find the accused having sexual intercourse with her. She pushed him off and brought suit against him for sexual assault. The trial judge found the accused guilty of sexual assault. Although there is a three-year minimum sentence for serious sexual assault, the judge took the recommendation of defense counsel and sentenced the accused to 90 days imprisonment, to be served intermittently, plus three years probation. The State appealed the sentence, arguing that it should have been in the three- to four-year range. In evaluating the appropriate application of the proportionality principle to sentences for sexual assault, the Court of Appeal reasoned that the Supreme Court had never endorsed the concept of a harmless rape or other major sexual assault. The court held that non-consensual sexual intercourse under any circumstances constituted a profound violation of a person’s dignity, equality, security of person and sexual autonomy, and that under the circumstances of the instant case, the offense should have been sentenced as a serious sexual assault. However, the court also ruled that, having regard to all relevant considerations, a downward departure from the three-year minimum sentence is justified. Finding that the original sentence was inadequate, the court granted the appeal and concluded that a fit and proper sentence would be two years imprisonment plus two years probation.
Diene Kaba v. Canada, Canada, Human Rights Committee , 2008.
Diene Kaba was severely beaten by her husband when she intervened to prevent the clitoral excision of her six-year-old daughter. Both mother and daughter fled Guinea and arrived in Canada where Kaba claimed refugee status for herself and her daughter on the grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of her daughter’s excision. The Immigration and Refugee Board (IRB) refused to grant refugee status for lack of credibility. Kaba then applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations, as well as a pre-removal risk assessment. The IRB rejected both applications and ordered her removal from Canada. Kaba included supporting documents in each application, including reports confirming the risk of excision in Guinea and a letter from her uncle in Guinea that attested to her husband’s threats to harm Kaba if he ever saw her again, or kill her if she did not return his daughter to him. Kaba’s husband had subsequently obtained a court order forcing Kaba’s brother and mother to do everything possible on pain of severe penalties to return his daughter to him in Guinea. The affidavits for the order show that Kaba’s daughter faced certain excision and forced marriage upon her return to Guinea. In her complaint to the Committee, Kaba cited violations of several articles of the International Covenant on Civil and Political Rights, including article 7 prohibiting torture and cruel, inhuman, and degrading treatment or punishment. The Committee held that there was no question that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant, and although Kaba’s daughter was fifteen at the time the Committee addressed the communication, the context and particular circumstances of her case demonstrated a real risk of genital mutilation upon her forced return to Guinea.
Erdogu v. Canada, Canada, Federal Court of Canada , 2008.
Ms. Erdogu, a Turkish national, fled to Canada and filed a claim for refugee protection to escape persecution for her political and religious activity in Turkey. Because she was both an ethnic and religious minority (Kurdish/Alevi), she was arrested in Turkey on a number of occasions, during which she was detained, interrogated, beaten, and sexually molested. Further, she claimed to be at risk because a violent ex-boyfriend had informed her father of the former couple’s sexual relationship, leading her father to declare his intent to kill her in order to preserve the family’s honor. Ms. Erdogu’s application was denied, and she applied for judicial review of that decision. The judge noted that the documentary evidence clearly demonstrated continuing problems with the Turkish government’s efforts to address the issue of honor killings, finding that the officer who had made the initial decision on Ms. Erdogu’s case had failed to consider such evidence. Because of the high risk of honor killing that Ms. Erdogu faced, and due to the officer’s failure to justify his denial of her initial application for protection, the judge ruled that judicial review would be allowed, and that the decision on Ms. Erdogu’s application was to be set aside and redetermined by another officer.
Streanga v. Canada, Canada, Federal Court of Canada , 2007.
Ms. Streanga is a citizen of Romania who was smuggled to Canada by a sex trafficking ring. After escaping from her traffickers, Ms. Streanga submitted an application for protection. Her application was denied, the deciding officer concluding that since the Romanian government had “taken serious measures” to punish those responsible for trafficking, state protection would be available to Ms. Streanga upon her return. Ms. Streanga made a motion for an order staying her removal until such time as her Application for Leave and for Judicial Review of her application could be decided. On hearing the motion, the judge found that the public pronouncements and public awareness cited by the officer, as well as services for women who have already been victimized, did not amount to state protection. The judge also found that Ms. Streanga would likely suffer irreparable harm if deported to Romania. Further, the judge found reviewable error in that the officer had applied the wrong legal test to determine state protection, and that in light of the evidence of the serious inadequacies of the Romanian police in combating and preventing human trafficking, the officer’s standard of review was flawed. The court granted the stay of removal until the deposition of the leave application, and provided that if leave was granted, the stay would remain until such time as the application for judicial review could be disposed of by the Court.
Chu v. Canada, Canada, Federal Court of Canada , 2006.
Ms. Chu is a citizen of China who was smuggled into Canada as a minor, arrested by Citizenship and Immigration Canada while she was being smuggled into the United States, and subsequently detained for eight months. Ms. Chu filed a refugee claim with the Immigration and Refugee Board, which was rejected. In rejecting her claim, however, the Board accepted that Ms. Chu was a member of a social group comprising rural young women from China, and that as such, Ms. Chu was a “very vulnerable member of society.” Ms. Chu then submitted an application for permanent resident status on humanitarian and compassionate grounds, in light of the international laws regarding the trafficking of women. After complying with a request to provide updated information about her case, Ms. Chu received word that her application had been refused on the grounds that she had not shown sufficient establishment in Canada to suggest that she would suffer undue hardship if required to leave and apply for a visa in the regular manner. Ms. Chu challenged this decision by applying for judicial review of her application, alleging that the officer who made the original decision had failed to consider all of the evidence submitted in her case. The judge dismissed Ms. Chu’s application for judicial review, holding that the officer had not made any reviewable error because Ms. Chu had not successfully demonstrated that the officer ignored any evidence.
Joseph v. Canada , Canada, Federal Court of Canada, 2006.
Ms. Joseph is a citizen of Grenada who fled to Canada in order to escape a violent common law relationship she had been involved in for 15 years. During Ms. Joseph’s relationship with her common law spouse, she tried to leave him several times; however, he always found her and the abuse would continue. She applied for protection in Canada pursuant to the Gender-Related Guidelines of the Immigration and Refugee Protection Act, which aids determination of the risk facing women who are fleeing gender-specific persecution. Ms. Joseph based her claim on the ground that there is a substantial risk that she would face torture and cruel and unusual treatment at the hands of her former common law spouse, and there is more than a mere possibility that she would face gender-based persecution, if forced to return to Grenada. Despite the fact that the officer reviewing Ms. Joseph's application found her testimony and evidence to be credible, her application for protection was denied on the ground that she had failed to rebut the presumption of state protection in Grenada. When Ms. Joseph was informed that removal arrangements had been made, she brought a motion for a stay of removal, which was granted. The court ordered that Ms. Joseph’s application for judicial review be allowed, due to “discrepancies in logic” regarding the officer’s estimation of her evidence and his decision on her application, and remitted the matter to a different state officer for redetermination of her application for protection.
R. v. Smith, Canada, Ontario Court of Appeal, 2005.
The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. The materials in question, consisting of audiovisual material and written stories, depicted acts of violence perpetrated against women by men. Although no explicit sexual act was depicted in the audiovisual material, the images included depictions of nude women with their genitalia exposed and with weapons protruding from their bodies. The written stories, however, depicted explicit sex and violence. The trial judge imposed a $100,000 fine and a period of probation, during which the appellant was prohibited from accessing the internet or residing in any place where internet access was provided. The appellant appealed both his convictions and sentence. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine.
R. v. Bear, Canada, Provincial Court for Saskatchewan, 1999.
Ms. Bear was charged with aggravated assault for stabbing her partner more than a dozen times in his abdomen, arms, and face, leaving him in critical condition. Ms. Bear also received serious cuts to her leg and hand in the course of the altercation. In her defense, Ms. Bear claimed that she acted in self-defense and offered expert testimony that she and the victim were caught up in a cycle of violence commonly referred to as “battered woman syndrome.” Both parties were intoxicated at the time of the incident, and Ms. Bear testified that her partner was blocking the only exit. Ms. Bear had a history of assault, but she also had a history of involving herself in violent relationships. The trial judge accepted the theory of “battered woman syndrome” and found Ms. Bear not guilty on the charge of aggravated assault, holding that she had clearly acted in self-defense and that the lethality of her actions was not unreasonable given her situation.
R. v. Ewanchuk, Canada, Supreme Court of Canada, 1999.
The female complainant was repeatedly touched in a progressively intimate manner by the accused, despite the fact that she clearly said “no” on each occasion. Any compliance by the complainant with the accused’s advances was done out of fear, as she believed that they were locked inside the accused’s trailer. The conversation that took place between the two in the trailer clearly demonstrated that the accused knew that the complainant was afraid and that she was an unwilling participant. The complainant filed suit against the accused for sexual assault in the Alberta Court of the Queen’s Bench. Despite the trial judge’s acceptance of the complainant’s testimony regarding her lack of consent, the judge acquitted the accused on the basis of “implied consent”; the Court of Appeal affirmed. On the issue of whether the trial judge erred in his understanding of consent in sexual assault, and on whether the defense of “implied consent” was proper, the Supreme Court of Canada held that there was error and ordered that an appeal from that decision be allowed.
R. v. Mills, Canada, Supreme Court, 1999.
The Supreme Court of Canada upheld a recently enacted rape shield law. Mills, a defendant in a rape case, challenged the law, arguing it violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court found that the law gave sufficient discrepancy to judges to ensure that the rights of a defendant in a rape case were not violated.
Lovelace v. Canada, Canada, Human Rights Committee, 1981.
Sandra Lovelace was born and registered as a Maliseet Indian but lost her rights and status as such in accordance with section 12(1)(b) of Canada’s Indian Act after she married a non-Indian in 1970. Lovelace noted that the law did not equally adversely impact Canadian Indian men who marry non-Indian women, and therefore alleged that the law is gender discriminatory in violation of articles 2, 3, 23, 26, and 27 of the Covenant on Civil and Political Rights. Supreme Court of Canada rulings in The Attorney-General of Canada v. Jeanette Lavell and Richard Isaac v. Yvonne Bédard held that section 12(1)(b) of the Indian Act is fully operative irrespective of any inconsistency with the Canadian Bill of Rights on account of sex discrimination. Although the Committee noted that the relevant provision of the Indian Act does not legally restrict the right to marry as guaranteed in article 23 of the Covenant, the Act does seriously disadvantage Canadian Indian women who want to marry a non-Indian man by limiting their family options to a domestic partnership. Lovelace raised specific issues in her complaint pertaining to her inability to continue living on the Tobique Reserve as a result of her marriage, which, according to the Committee, suggests a violation of article 27 of the Covenant which guarantees that ethnic, religious, of linguistic minorities shall not be denied the right to enjoy their own culture, to profess or practice their own religion, or to use their own language. The Committee considered the merits of the Indian Act in preserving the identity of the Maliseet tribe, but ultimately concluded that in light of the dissolution of Lovelace’s marriage to a non-Indian, there was no reasonable or necessary justification to deny Lovelace the right to return to the Tobique Reserve where she was born and raised. Canada’s refusal to allow Lovelace to do so was tantamount to a violation of her rights under article 27 of the Covenant.