The latest decision in the Transgender Teacher Discrimination Case

Transgender issues and the rights of transgendered people is a hot topic in human rights law. In January of 2014, Alberta’s Court of Queen’s Bench said it was time for a Commission to hear the long-standing discrimination complaint filed by a transgender teacher who was fired from the Greater St. Albert Catholic Regional Division No.29. The latest step in this long battle is the Human Rights Tribunal of Alberta recent decision on a preliminary matter for the discrimination complaint. The Tribunal decided to remain seized of the matter pending the outcome of a settlement agreement and to permit the Tribunal to address any further issues that  may arise in the execution of the settlement agreement. However, the Tribunal did note that if a settlement agreement is unable to be completed between the two parties, the hearing of the discrimination complaint is scheduled for December 3 2014.

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Zero Tolerance for Barbaric Cultural Practices Act

Bill S-7 or the “Zero Tolerance for Barbaric Cultural Practices Act” was tabled by the Minister of Citizenship and Immigration Chris Alexander. It had it’s first reading in the Senate, this November 5th. The Bill affects the Immigration and Refugee Protection Act, the Civil Marriage Act, and the Criminal Code. The Bill mostly tackles forced marriages, underage marriages and Polygamy.

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B.C. Law Society Rejects Trinity Western Law School Accreditation

Last week, the B.C. Law Society released the results of its referendum regarding whether to recognize graduates of Trinity Western University’s proposed law school. The law school was scheduled to open in the summer of 2016, however the recent vote by B.C. lawyers has cast doubt and uncertainty as to whether these plans will unfold as hoped by the Langley evangelical Christian school. Members of the province’s law society voted 5,951 to 2,088 against approving the proposed law school. The referendum was binding since the requirements of one-third of members voting and approval by a two-thirds margin were both met.

The proposal to accredit the law school has been controversial due to the requirement that all students and staff who attend or are employed at TWU must sign a covenant promising not to engage in sexual intimacy that “violates the sacredness of marriage between a man and a woman.” The policy has been heavily criticized by both lawyers and members of the public as inconsistent with the fundamental values of the legal profession, since it allows the university to discriminate based on students’ private sexual activities.

TWU representatives were disappointed with the vote. According to CTV, TWU spokesperson Guy Saffold stated that “Trinity Western believes in diversity and the rights of all Canadians to their person beliefs and values. A person’s ability to study and practice the law should not be restricted by their faith.”

The B.C. Law Society’s board (commonly referred to as “Benchers”) reviewed the referendum results on Friday, in the context of factors related to the issue, as well as strong urging by TWU not to rely on the voting results. The board then voted twenty-five to one with four abstentions, resulting in the ratification of the referendum results –passing a resolution against accreditation of the proposed law school.

British Columbia joins Nova Scotia and Ontario in officially rejecting the law program at TWU. The university is challenging the Ontario and Nova Scotia decisions, invoking the Charter right of the freedom of conscience and religion. TWU will decide in the following weeks whether it will be pursuing a judicial review of the B.C. decision. The law societies in Alberta, Saskatchewan, Prince Edward Island, Newfoundland and Nunavut have expressed their approval for TWU-trained students to practice in their respective jurisdictions.

 

For more, click here.

 

No Damages for Violation of Official Language Rights on International Flights

The Supreme Court has ruled that an Ottawa couple is not entitled to damages from Air Canada for failing to provide service in French in the airport and on three international flights. The couple flew Air Canada several times over the course of four months and on several occasions there were either no flight attendants who spoke French or announcements were made only in English. The couple, Mrs. and Mr. Thibodeau filed complaints with the Office of the Commissioner of Official Languages.

In response, Air Canada implemented some measures in an attempt to improve capacity for French language services. The couple decided to sue in Federal Court. The Federal Court ruled in their favour and awarded $12,000 in damages, but this decision was overturned at the Federal Court of Appeal. The Commissioner of Official Languages appealed the decision to the Supreme Court on behalf of the couple.

The Supreme Court has agreed with the Federal Court of Appeal, concluding that the Montreal Convention bars recovery in these circumstances and that this does not conflict with the Official Languages Act. The Montreal Convention sets out certain limitations on liability for international air carriers. The Official Languages Act was enacted to ensure the respect and maintenance of English and French as the official languages of Canada. Although the Court acknowledged the importance of the quasi-constitutional status of the Official Languages Act, it nonetheless found that this does not prevent it from being read consistently with Canada`s International obligations to uphold the Montreal Convention.

 

La Cour Suprême tranche: Air Canada a gain de cause

Sur une affaire datant de 2009 portant sur des plaintes déposées auprès du Commissaire aux langues officielles, la plus haute instance du pays s’est rangée du côté d’Air Canada.

Deux résidents francophones d’Ottawa avaient porté plainte concernant trois vols entre Toronto et les États-Unis. En effet, différentes infractions relatives à la Loi sur les langues officielles avaient été commises sur chacun de ces vols. Les tribunaux de première instance, d’appel et même la Cour Suprême le reconnaissent: en tant qu’ancienne société d’État, Air Canada se doit d’utiliser les deux langues officielles dans toutes ses opérations et la compagnie n’a pas respecté ses obligations.

Toutefois, des dommages-intérêts ne peuvent être imposés en vertu de la Loi sur les langues officielles puisque ceci irait à l’encontre de la Convention de Montréal. En effet, cette Convention de 1999 stipule qu’un transporteur ne peut être tenu de payer des dommages qu’en ce qui a trait aux dommages corporels, aux retards et à la perte de bagages.

La Cour invite tout de même les citoyens canadiens à faire valoir leurs droits linguistiques. D’ailleurs elle note que cette décision n’exclut les dommages-intérêts qu’au plan international. Une possibilité de recours plus précis est toujours un aspect à explorer.

Cette décision s’inscrit peu de temps après le rapport annuel de Graham Foster, commissaire aux langues officielles du Canada, qui se disait préoccuper de la stagnation d’Air Canada face au bilinguisme et déplorait le nombre de plaintes reçues quant au transporteur.

Pour plus d’informations …

Government of the Northwest Territories Receives Employee’s Intimate Pyschiatric Assessment

According to the CBC a former employee of the Government of the Northwest Territories has alleged that her employment was terminated shortly after a psychiatric assessment was provided without consent to her employer. The psychiatric assessment was prepared at the suggestion of the employee’s physician in order to bolster the employee’s request for workplace accommodations. The employee, whose identity has been withheld by the CBC, believes that this alleged privacy breach, which exposed intimate details about her mental health, her sexual history, and her relationship with alcohol, was a factor in her termination.

The information and privacy commissioner for the Northwest Territories, Elaine Keenan Bengts, is quoted as saying that “it is, frankly, impossible to figure out what exactly happened here.” The commissioner went on to state however that she was struck by the “apparent lack of appreciation as to the impact even the possibility of the disclosure of psychiatric information might have on an individual.”

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First Nations’ discrimination claim reaching conclusion after 7 years

Arguments on a longstanding human rights complaint, which allege unequal treatment of First Nations children by the Government of Canada, will reach its conclusion in the coming week. First Nations Child and Family Caring Society and Assembly of First Nations filed a case at the Canadian Human Rights Tribunal on February 26th, 2007. The parties began closing arguments over seven years later on October 20th, 2014.

The case alleges that the Federal government does not adequately fund child-welfare services on reserves.  The Winnipeg Free Press reports that services for First Nations children on reserves received 22 per cent less funding than services provided by Provincial governments to children off reserve. Cindy Blackstock, head of the First Nations Child and Family Caring Society, states in the Children and Youth Services Review that the effect of inadequate funding on First Nations children is amplified by their disproportionate representation as recipients of child-welfare services, and further inequity in other critical social services. The Globe and Mail reports that there was an abundance of evidence of underfunding produced throughout the hearing. Whereas child-welfare generally falls under Provincial authority according to the Constitution Act, 1867, the Federal government is responsible for services for First Nations children on reserves. The claimants widely condemned the Federal government for failing to fulfill its obligations.

According to the Winnipeg Free Press, the case experienced serious delays due to questions of jurisdiction. In addition to arguments about jurisdiction, Blackstock said in 2010 that the Federal government contested the claim on the basis that the current funding plan is not discriminatory. The Federal government argued that in order to prove the plan is discriminatory, the claimants must show a differential treatment between claimants’ experience on reserves and the experience of First Nations children on other reserves — the comparison should not be made between First Nations children on reserves and children off reserves, as the claimants argued. Since the Provincial government is responsible for child-welfare services for children that do not reside on reserves, any comparison to the Provincial plan is irrelevant for the purpose of establishing discrimination. Therefore, according to the arguments of the Federal government, since First Nations children receive equally on all reserves, there is no discrimination.

The Globe and Mail reports that the arguments will close on October 24, with a decision expected in 2015. A livestream of the closing arguments can be found here.

 

Death of Lucia Verga Jimenez Reveals Shortcomings in YVR Immigration Detention Facility

Lucia Vega Jimenez was found hanging from a shower stall inside the YVR underground immigration detention centre operated by a private security firm on December 20, 2013.  A coroner’s inquest was launched in an effort to prevent similar deaths from occurring. Video showing Jimenez entering bathroom can be found here.

Jimenez was a Mexican national, and was allegedly stopped by transit police, who suspected she was in Canada illegally, and was subsequently delivered to the Canadian Border Services Agency (CBSA). Jimenez was held in a facility staffed by Genesis Security, which provides private security contract positions to the three immigration-holding centers run by the CBSA. Genesis Security won the Top Choice Award for Top Security Guard Services in Vancouver of 2014. Current and former Genesis Security guards testified at the inquest that they often had to pay for their own training, and only received a pamphlet in lieu of suicide prevention training.

The inquest also heard that Genesis frequently understaffed security guards at the CBSA site, and that the records of mandatory checks on detainees were falsified. On the day of Jimenez’s death, the female guard required for checks on the female detainees was offsite, and ex-Genesis guard Jivan Sandhu failed to check on Jimenez for over 40 minutes after she entered the showers. Sandhu agreed with the statement by BCCLA lawyer Jason Gratl that Genesis had “too many jobs and not enough bodies”

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UK to Increase Maximum Sentence for Internet Trolls

The UK government announced today that it will increase the maximum prison sentence for internet trolls to two years, up from six months. It will also increase the statute of limitations for criminal prosecution from six months from the day of commission to three years. This is in conjunction with the creation of a specific offence to criminalize ‘revenge porn’.

The offence is described as “cover[ing] sending a letter, electronic communication or article of any description to another person, which is in nature, or which conveys a message which is, indecent or grossly offensive, or conveys a threat or false information, with the purpose of causing distress or anxiety to the recipient or to any other person to whom it is intended that its contents should be communicated.”

Chris Grayling, the Minister of Justice, has described the initiative as “a stand against a baying cyber-mob”. Neither Mr Grayling nor the official press release make any comment about the underlying discrimination found in many instances of trolling.

This announcement was made just days after a high profile trolling case was made public. The daughter of Judy Finnegan, a well-known TV presenter, had receive rape threats online because of her mother’s on-air comments regarding a convicted rapists and football player. Finnegan said that Ched Evans should be welcomed back to professional sports because the rape “wasn’t violent and the victim was drunk”. Her comments solicited wide criticisms and she has since apologized, though her daughter was consequently the target of internet trolling.

For more information, see here.

Canadian Museum For Human Rights

The first national museum located outside of Ottawa, the Canadian Museum for Human Rights, opened its doors on September 19th in Winnipeg. This impressive piece of architecture is located near the site of the Red River Rebellion on Treaty One land. The museum features various exhibits focusing on topics such as residential schools, the Winnipeg General Strike, the Underground Railroad, and various atrocities including the Armenian Genocide, the Holodomor, and the Holocaust.

The museum’s opening was not without controversy.  The site of the museum may have been an aboriginal burial ground, however organizers were sure to consult with the aboriginal community before construction got underway.  Additionally, aboriginal elders helped to bless the site during its construction.

The Canadian Museum for Human Rights is located at 85 Israel Asper Way.  It is open 6 days a week, Tuesday through Sunday, 10 AM till 5PM.  Until November 9th, only guided tours will be available, at a reduced ticket price of $10 for adults.  The CMHR’s website can be found here.

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The opinions expressed here do not necessarily represent CCLA or PBSC policy. Please visit CCLA’s website, www.ccla.org, for official CCLA publications and policies…Les opinions exprimées ici ne représentent pas nécessairement ACLC ou PBSC politique. S’il vous plaît visitez le site Web CCLA, www.ccla.org/fr, pour les publications officielles CCLA et politiques.

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