Verdict Delivered in High-Profile South African Shooting Case

Shrien Dewani was found not guilty yesterday of the 2010 shooting death of his wife Anni Dewani. Ms. Dewani was shot to death during a suspected carjacking while the couple were on their honeymoon just outside of Cape Town. Judge Traverso found that the prosecution’s evidence was plagued with inconsistencies and subsequently dismissed the case.

This verdict was announced two days before the expected decision on whether an appeal will be allowed in the Oscar Pistorius case. In a case with many similarities to the Dewani case, Pistorius was convicted for the culpable homicide shooting death of his girlfriend Reeva Steenkamp. The prosecution argued yesterday that, as a point of law, Pistorius should not have been acquitted of the more serious charge of murder and that his five-year sentence for culpable homicide was too lenient.

Many critics see Dewani’s acquittal and Pistorius’ low sentence as examples of South Africa’s struggle with the institutionalization of violence against women and corruption in the justice system.

Following the Dewani verdict, Justice Minister Michael Masutha requested a full inquiry into the Dewani case, the Pistorius case, and the investigation into the shooting death of South Africa’s national soccer team captain, Senzo Meyiwa. Mr. Masutha wants to reflect on how the police and the prosecution operated in these cases and why these cases are receiving so much negative attention at the national and international levels.

 

CPI: les poursuites contre le président kenyan sont abandonnées

La CPI a annoncé, vendredi le 5 décembre, l’abandon des poursuites contre Uhuru Kenyatta, l’actuel président du Kenya. Étant le premier président en exercice à être accusé, il faisait face à des charges de crime contre l’humanité.

Kenyatta était accusé avec 5 autres de ses collaborateurs. Les gestes lui étant reprochés remontent à 2007.  Suivant les élections, les partisans du parti de l’opposition alléguaient être victimes de fraude électorale. Les contestations ont vite dégénéré et se sont avérées très sanglantes. Les victimes sont nombreuses – selon Human Rights Watch, plus de 1300 personnes auraient péri lors des évènements. S’ajoutant à ce nombre près de 220 000 déplacés, c’est-à-dire des individus ayant été forcés de fuir leur domicile en raison des violences. Kenyatta était accusé d’avoir organisé et financé le déplacement, le viol et la mort de plusieurs opposants. Les charges ont été retirées en raison du manque de preuve.

La chambre de première instance de la Cour a souligné, dans sa décision de refuser l’ajournement du procès, le défaut de collaboration des autorités kényanes. Ce faisant le gouvernement aurait violé le Statut de Rome, en ne respectant pas son obligation de “coopération de bonne foi”. La procureure a affirmé que plusieurs obstacles ont entravé le déroulement de l’enquête, notamment des campagnes médiatiques d’envergure au Kenya visant à rallier l’opinion publique et des menaces qui auraient été profanées à l’égard de potentiels témoins. Malgré l’abandon des charges contre Kenyatta, il est important de souligner que les charges via-à-vis les autres accusés dans cette affaire sont encore à l’étude.

Il est possible de consulter la décision de la CPI ici et l’avis d’abandon des charges ici.

 

 

Op-ed: Law professor’s words highlight how the personal is still the political

Should professional women’s personal lives have anything to do with their careers? One law professor doesn’t have the answer to that question, but her words make clear that regardless of whether they “should”, they certainly do.

Osgoode Hall Law School professor Susan Drummond says she stands in solidarity with Manitoba judge Lori Douglas. Douglas decided last week to retire early after sexually explicit photos of her, put on the internet without her consent in 2003 by her now late husband, became the subject of an inquiry by the Canadian Judicial Council.

In an article originally published in the Winnipeg Free Press titled “I can never be a judge,” Professor Drummond revealed that she appears in a presumably compromising photograph that someone close to her has threatened to send to her current employer, Osgoode Hall. Following the outcome of Justice Douglas’ plight, Professor Drummond says she has realized that “as it stands”, because she too has a photo “out there”, she can never be a judge.

Drummond likens this knowledge to that of sexual assault complainants like those who are, she says, about to have their credibility attacked by Jian Ghomeshi‘s lawyers in his upcoming criminal proceedings. Just as she can never be a judge because of the scrutiny that could befall her personal life, she says many survivors of assault feel they can never be a complainant for the same reasons.

Further, Professor Drummond ties Justice Douglas’ experience to the recent appointment of Quebec corporate law litigator Suzanne Côté as newest justice to the Supreme Court of Canada, announced on November 27. Côté was independent counsel to the disciplinary committee that heard Justice Douglas’ case, where, as Drummond recounts, Côté insisted that the committee needed to see the graphic photos of Douglas in order to make its decision. After Douglas’ lawyer obtained an injunction preventing the committee from seeing the photos, Côté applied for Douglas’ medical records, including notes from her therapist, to be included in evidence. Several days later, Douglas offered to retire early to avoid a hearing on her case. Following several days after that was Côté’s appointment to the Supreme Court.

The appointment of Côté will bring the number of women Supreme Court justices back up to four out of nine, a fact applauded by opposition party members as much as by feminists. But Professor Drummond’s story reminds us that we are far from a world where we side with women who have been threatened, attacked, or harassed. For the important thing is not that Drummond and Douglas apparently agreed to the taking of compromising photos. It’s that they and their careers are not protected when their privacy and dignity is violated by others, without their consent, in the way that Douglas’ was and Drummond says hers is threatened to be. The photos of Douglas’ private life did not mysteriously “appear” on the internet. They were put there deliberately, by someone she presumably trusted when the photos were taken.

As Drummond makes clear, these women are victims that the law does not or will not protect. Sexual assault victims, dignity and privacy violated too, are not protected either from having their reputations and careers ruined by scrutiny into what they mistakenly thought was their “private” life. As long as women like Douglas can still lose their jobs because private photos of their consensual sexual activity were put on the internet without their consent; as long as women like Drummond can still know that certain prestigious, high-paying, powerful, male-dominated jobs will remain forever out of their reach because of the possibility that they will be judged and scrutinized over private photos put into the public sphere without their consent and used as threats against them; as long as women feel they must refrain from lodging formal sexual assault complaints because of how their personal and private lives will be publicly scrutinized, the personal does not remain personal at all, but still acutely political.

As a feminist, I like seeing another woman appointed to the Supreme Court too. I just wish it was a woman who, rather than participate in the same old savage attacks on the personal life of another woman victim of sexual harassment, had chosen instead to stand in solidarity with her as Drummond does. But Côté would likely argue that she was just doing what lawyers do: representing her client’s interest, impartially, objectively; indeed, the legal system makes it possible and acceptable for her to do as she did in Douglas’ case. Just like the lawyers who filed a hopeless and now-retracted $50 million civil lawsuit against CBC on behalf of Jian Ghomeshi, a move that law professor David Tanovich says is ethically and professionally questionable. While Côté’s work on Douglas’ case may not be professionally questionable, it still begs the question that Tanovich asks: is this – damage to the lives, careers, and reputations of women who are direct targets of intentional violations of their privacy – what we are going to accept as “business as usual”?

 

 

 

 

Yukon Justice Critic Calls for End to Solitary Confinement

Lois Moorcroft, NDP Justice Critic for the Yukon, is calling on the Yukon government to cease the use of solitary confinement at the Whitehorse Correction Centre.

According to Ms. Moorcroft inmates at the corrections facility have be known to spend upwards of 15 days in solitary confinement. United Nations experts stated in 2011 that prolonged applications of solitary confinement “can amount to torture or cruel, inhuman or degrading treatment” and that “[t]he practice should be used only in very exceptional circumstances and for as short a time as possible.”

In the absence of a complete ban on the use of solitary confinement the Canadian Medical Association recently urged Canada to sign the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations: Office of the High Commissioner for Human Rights). The objective of the protocol is to “establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.”

In response to Ms. Moorcroft’s remarks, Yukon Justice Minister Mike Nixon claims that the use of segregation procedures is rooted in the need to protect staff, other inmates, and the segregated inmate. He also noted that the practice is employed as a last resort.

Quebec daycare workers protest over continuing reforms

The Quebec Liberal (PLQ) government’s recent changes to provincial subsidized daycare costs, including raised fees and potential fines for parents who hold “ghost spots,” have not been well-received by daycare workers, working class parents, and opposition parties.

In early November, thousands of daycare workers and families participated in province-wide protests when rumours began circulating of the PLQ’s plans to raise fees at its subsidized daycares. Introduced in 1997, Quebec’s subsidized daycare program funds about 223,000 places and has the lowest fees in the country, at a cost of $2.7 billion according to the PLQ. Fees were originally set at a universal flat rate of $5 per day per child. That rate was raised to $7 per day in 2004 and then to $7.30 in October 2014, when premier Philippe Couillard fulfilled an election promise that the PLQ would index the rate to the cost of living. Now, the PLQ has officially proposed setting a sliding scale for subsidized daycare fees based on family income.

Under the new regime, families earning less than $50,000 per year would still pay $7.30 per day, with rates increasing up to a maximum of $20 per day for families earning more than $150,000 per year. Daycare rates will be indexed annually to the cost of living starting in 2016.

Additionally, Quebec’s Family Minister Francine Charbonneau tabled Bill 27 on November 27, which would put in place expensive fines for parents who hold “ghost places” for their children at subsidized daycares. These spots are paid for at the subsidized rate by parents on parental or maternity leave who want to hold spots for their children for when they return to work, meaning the spot goes unused during that time. Bill 27 would introduce a fine for parents who hold these empty spots of $60 per day for up to three months and fines for daycares of up to $1000 for each infraction. The PLQ argues that in 2013-2014, 10 million hours of daycare time went unused at a cost of $280 million to the government.

Gina Gasparini, president of the association representing Quebec daycares (AGCPE), argues that parents and daycares will essentially be fined for the fact that the subsidized daycare system itself is broken. She has also called the move to a sliding scale fee system one of the “worst possible moves” the government could make.

 

 

 

 

 

 

Yukon Pizzeria Accused of Discrimination

A Yukon pizzeria stands accused of discrimination. Tonny’s Pizza posed on its social media page on Facebook that is was looking for a new pizza chef. In response, a woman said they she was aware of the position opening and had applied for the job some time ago. The restaurant then said they specifically wanted a male for the position as it would be “less distraction for the other male employees”.

The restaurant has since apologized, but a local resident by the name of Blake Lepine felt an incident like this could not stand. In light of this belief, he took the matter to the Yukon Human Rights Commission. The spokeswoman for the commission, Heather MacFadgen has not commented about the event, as such things remain confidential until they go to the board of adjudication for a decision. However, current legislation requires that such complaints come from the person who believes they were discriminated against so it unclear whether or not Tonny’s Pizza will answer for its discrimination.

Original story can be found here.

UK’s New Anti-Terrorism Bills Criticized by Civil Rights Activists

The UK government has published the Counter-Terrorism and Security Bill ahead of its first reading in the House of Commons, scheduled for today. It includes several measures that have civil rights activists concerned.

Among them is the ability to temporarily exclude British citizens from returning home if they have been suspected of engaging in terrorists activities outside of the UK. This could leave some UK nationals stateless while overseas.

Another concern regards forcing internet providers to retain more identifying data to provide to the government for anti-terrorism purposes.

Other issues involve the ability to cancel passports at the border for up to 30 days, a ban on insuring ransoms, requiring more data from airlines, mandating anti-radicalization measures from educational institutions, and greater control on the domestic movements of suspected terrorists.

David Anderson, QC, the independent review of terrorism legislation (and appointed by the government), voiced his concern over the bill.

“The concern I have about this power and the central concern about it is: where are the courts in all of this? …One could look at it in terms of young, possibly vulnerable people caught up with the wrong crowd in Syria – didn’t really know exactly what they were doing… Do you want to throw the book at them straight away in terms of arrest and charge? Or is there something to be said, even though you do suspect them of having fought, of keeping them under a very light regime where they might have to report daily to a police station? They might have to notify [of] their residence; they might have to go along to meetings with probation or with some similar which perhaps might be for some people be a more sensible way of dealing with them than putting them straight into the criminal justice process.”

For more details of the bill and its specific concerns, see here.

Les jugements autochtones en Colombie et la protection des minorités : Les Colombiens ont-ils oublié les droits des accusés?

Il y a trois semaines, des autochtones colombiens ont jugé et condamné des partisans des Forces armées révolutionnaires de Colombie accusés de meurtre de deux membres de la tribu nasa. À travers le vote direct de la population locale, ils ont appliqué des peines d’emprisonnement entre 40 et 60 ans, ainsi que des châtiments corporels. Les condamnés ont été envoyés à des prisons subordonnées à l’Association des peuples autochtones de la région de Cauca.
Au sein de la population, ces jugements ne font pas l’unanimité. Pour certains, les risques d’abus sont présents, surtout dans l’application de corrections physiques telles que des coups de fouet. Pour d’autres, il faut qu’on respecte les traditions et la pluralité ethnique de Colombie. La question est importante et réclame l’analyse de la protection des minorités et les limites qui s’y appliquent.
Effectivement, la démocratie n’est pas simplement la loi de la majorité, mais également la protection de la minorité. Dans un appartement où il y a trois juifs et un musulman, les premiers ne peuvent décider de défenestrer le dernier sous l’argument d’être plus nombreux, puisqu’ il est nécessaire de respecter les droits de ceux qui sont en plus petit nombre. Toutefois, en protégeant les minorités, on ne peut violer les droits fondamentaux de qui que ce soit.
Ainsi, quant aux tribunaux autochtones colombiens, même qu’ils existent dans le cadre de conserver les traditions précolombiennes, il faut toujours observer le due process of law, qui signifie que les accusés ont droit à un jugement équitable, incluant la séparation entre l’accusation et le juge, la présence d’un avocat de défense et l’application des peines humaines. Le principe de la proportionnalité est également applicable en tant qu’outil d’interprétation des valeurs en collision.
Bien que la Colombie ait avancé les dernières années dans le combat aux narcotrafiquants, il reste encore une partie substantielle de son territoire sous le contrôle de la guerilla. Il y a donc beaucoup de choses à faire et le chemin vers la paix ne passe pas par la violation aux droits fondamentaux.

Source : http://www.bbc.co.uk/portuguese/noticias/2014/11/141111_indios_colombia_fd

Op-Ed: The Real Blow to Judicial Integrity

I was dismayed to read yesterday that Manitoba Associate Chief Justice Lori Douglas chose to step down from her position. In doing so, she is “avoiding a hearing on whether she should be kicked off the bench over nude photos of her that appeared on the internet” in 2003. These photographs did not just appear; they were placed on the Internet by her then-husband without her knowledge or consent. Douglas was the victim of a sex crime. The fact that the Canadian Judicial Council subjected Douglas to a formal inquiry over these photos is akin to forcing a woman to stand trial to find whether or not she is guilty of having been raped. They both suggest that, if a woman is the victim of a grotesque sexual injustice, she is liable to be punished for it. It does not matter that Douglas is the Associate Chief Justice of Manitoba; Lori Douglas is the victim of a sex crime. Canadian Judicial Council’s independent counsel, Suzanne Cote, has noted that judges are not considered normal citizens. Does that extend to being sexually assaulted, I wonder? Cote declares that the standard to which judges must adhere is “exceptionally burdensome”. Does that make you therefore liable for the unlawful conduct of others?

According to the CBC, “Douglas faced allegations that she failed to disclose the photos when she applied to become a judge in 2004 and that the pictures could undermine public confidence in the justice system”. What exactly, I beg, was Douglas meant to disclose when she applied to be a judge? The fact that she and her spouse engaged in sexual activity? The fact that there might be some photographic evidence depicting this entirely innocuous behaviour? The fact that her husband was, unbeknownst to her, capable of committing a sex crime? Firstly, married adult couples frequently engage in sexual behaviour, and I can hardly imagine how this might have the power to undermine the public’s confidence in the judiciary. Secondly, taking explicit photographs is a practice in which many, if not most, couples now engage in this digital era. This is especially true of couples that may not have the luxury of spending great amounts of time together, such as pairings in which one or both partners have demanding careers or live in different places. Lastly, implying that it was Douglas’ responsibility to disclose the existence of personal photos of this nature is a gross violation of her right to privacy and quite inappropriate.

Cote has said that the issue here was not whether Douglas can decide cases impartially “but whether the public believes she can.” Here’s a news flash: the public would have completely forgotten about this issue in a matter of days had it not been for this “panel”. What really undermines the public’s confidence in the judiciary is watching the Canadian Judicial Council trying a woman’s guilt for a sex crime committed against her and making it impossible for her to fulfill the demands of a position to which she was rightfully appointed. To think that the “public” will question her authority or the integrity of the justice system over some leaked nudes shows a grave lack of respect for the integrity and intelligence of the members of the public. Further, holding a a judge to such an antiquated notion of “integrity”, as necessarily including “modesty” or “chastity”, makes a mockery of the justice system and shames all of Canada.

 

University of Saskatchewan Drafting Sexual Assault Policy

The University of Saskatchewan Board of Governors is contemplating drafting a comprehensive procedure on how to deal with reports of sexual assaults. Currently, the University of Saskatchewan has a policy to deal with non-academic misconduct, but currently does not have any policy specifically pertaining to sexual assault.

This recent move stems from a report in the Toronto Star last week of a young woman attending the U of S was sexually assaulted back in 2011. When these allegations were brought to the attention of the university’s administration, they stated they had no power to initiate an investigation without a finding of criminal liability.

As reported by the Toronto Star during a 3 month investigation this appears to be an epidemic across Canadian campuses. Indeed, as reported by the Toronto Star, out of 78 Canadian universities only 9 have special policies in dealing with sexual assault. By having a dedicated policy to deal with sexual assault, complainants need not deal with the inefficiencies of a large university bureaucracy

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