Category Archives: Cases

Coerced Sterilization

You may have already been reading / listening  about the class action lawsuit proposed against Saskatchewan (inter alia) for the coerced sterilization of Indigenous women in that province.  If not, see here (or listen).   As framed by lawyer Alisa Lombard and 2 Indigenous women claimants, the suit would claim $7m in damages per claimant, and they believe there are around twenty other women who could join the (as yet uncertified) class.  Debbie Ironbow, interviewed last year by CBC, is one of those women.  Her language below sent me back to Patricia Williams’  “The Alchemy of Race and Rights” and many other assertions about the value of legal rights:

"I think the only thing that speaks is the law," she said. "The only thing we have going for us as Indigenous women and Indigenous people is that we can go into a courtroom and we can assert an inherent right over our bodies." [Debbie Ironbow quoted in David Shield, "'It steals your dreams': Saskatoon woman not sure whether she will join forced-sterilization lawsuit" October 11 2017, CBC News Online]

An independent report was released in the summer of 2017, “Tubal Ligation in the Saskatoon Health Region: The Lived Experience of Aboriginal Women” written by lawyer Senator Dr. Yvonne Boyer and Dr. Judith Bartlett.  Afterwards, the Saskatoon Health Authority apologized for the practice of sterilization of Indigenous women without proper or informed consent.   In reading through the report and hearing about the lawsuit, I was reminded of this piece that appeared in the jotwell section i co-edit earlier in the year.  Prof. Ruthann Robson wrote, in RESISTING ATTEMPTS TO CONTROL THE “HYPER-FERTILE”, about Prof. Maya Manian’s work, The Story of Madrigal v. Quilligan: Coerced Sterilization of Mexican-American Women.  It appears in Reproductive Rights and Justice Stories (forthcoming 2019), available at SSRN.

Both Robson’s short jot and Manian’s article are well worth reading, in terms of understanding coerced sterilization and legal approaches to these violations.  Robson’s short but informative note concludes with these lines:

The story Manian ultimately tells is one of courage and resistance. As we confront renewed efforts to control the reproductive and sexual rights of immigrants, people of color, and all women, it is a story that is worth reading—and retelling.

Another place that the Saskatchewan case could take us is to the broader question of racism in health care that continues to be the experience of Indigenous people across the country.  But for those interested particularly in “coerced sterilization,” here are some recent articles from a variety of national contexts.

Donofrio, Gemma. “Exploring the Role of Lawyers in Supporting the Reproductive Justice Movement” (2018) 42 NYU Rev L & Soc Change 221.
Mohapatra, Seema. “Politically Correct Eugenics Symposium: New Approaches & Challenges to Reproductive Justice” (2016) 12 FIU L Rev 51.
Ocen, Priscilla A. “Incapacitating Motherhood” (2017) 51 UCD L Rev 2191.
Pickles, Camilla. “Involuntary contraceptive sterilisation of women in South Africa and the criminal law” (2016) 2016:2 SACJ 89, online.
Sifris, Ronli. “Involuntary Sterilization of HIV-Positive Women: An Example of Intersectional Discrimination” (2015) 37 Hum Rts Q 464.
Steele, Linda. “Court Authorised Sterilisation and Human Rights: Inequality, Discrimination and Violence against Women and Girls with Disability” (2016) 39 UNSWLJ 1002.

Random Girls rule

oh my.  Doctor claims in lawsuit that “out-of-wedlock conception deprived him of the choice of falling in love, marrying, and choosing when to have a child.” Toronto judge rightly chucks it out.  Here.   Such a small thing, but here it is, Saturday night and all the interesting bits of Pride and Prejudice are over, only the mush is left.  So, a few things….

1. the information including the age of the child and age of the woman does seem to open doors for possible identification.

2.    Now THIS is how it’s done:

“But then came the text message at 7:06 p.m. on Aug. 10, 2014, that would shock PP and change his life forever.

DD said she was 10 weeks pregnant with PP’s baby, according to the statement of claim.

PP wanted her to get an abortion.

DD said no.

PP said, “I don’t want to have a baby with some random girl.”

DD said, “This random girl is fine doing it on her own.””

3. the “emotional damage” here, might, with some escalation, approach what at least one Canadian legal scholar (ok, on twitter) seemed to suggest would meet the R. v. Hutchinson [2014] 1 SCR 346 (because there were a surprising number of people who only wanted to talk about Hutchinson in terms of “but what about when the women do it”).  This is in tort, though, obviously.

4. The lawyer who drafted the statement of claim is, mercifully for them perhaps, not named.  Am I being too dismissive of the strength of the claimant’s argument? #notatortexpertunderanydefinitionofexpert.

Source: Doctor sues mother of his child for emotional damages | Toronto Star

Belated, Bhopal 31 years later: Questions for all of us about the lands where we live

December 2 was the 31 year anniversary of the Union Carbide plant leak in Bhopal.  It killed 20 000 and injured many more.

“Do cities have a mechanism of passing on their history to newcomers or children growing within their borders? Or do all cities ask you to make do with a jigsaw puzzle of footprints and unreliable memories for their children to solve? Does it always take an effort to find out the stories of what had once happened on the land where they were born? Is it important to know the soil where one is born at all? In our world of rootless, migrant workers, is our memory and identity still really linked to our hometowns? ”

 

Continue reading Belated, Bhopal 31 years later: Questions for all of us about the lands where we live

Advocacy Interest Groups [not the feminist ones]

h/t Amna Qureshi for posting this article:   Sun News [fair warning!] : Edmonton Transit faces lawsuit after cancelling anti-honour killing ads.

A Calgary-based legal defence group is coming to the aid of American human rights advocates whose ads have been stripped from Edmonton buses.

 

In a press release, the Justice Centre for Constitutional Freedoms (JCCF) announced a court action in support of the non-profit American Freedom Defense Initiative (AFDI), whose ads encouraged Canadian Muslim women and girls to come to them for legal protection from so-called “honour killings.”

I had not realised that John Carpay had moved on from the Canadian Constitutional Foundation (which still appears to be a going concern) and was now the president of the Justice Centre for Constitutional Freedoms (est 2010) – i had not twigged to the fact that these are different organizations. Both are on twitter, @JCCFCanada @CDNConstFound and both are registered charities.  Both list the cases they are running on their sites

JCCF  http://www.jccf.ca/our-cases/ and CCF http://theccf.ca/posts/court-cases/court-cases-ongoing/

It will be interesting to see what approach these groups are taking to their litigation strategies and what issues they are pushing.  Paper topic, anyone?

 

Contraception & Consent: Hutchinson v. The Queen comes out this Friday

The SCC is set to release Hutchinson this Friday, so here’s a brief note + some links.   Hutchinson was committed for trial by Justice Derrick in the NSPC  R. v. Hutchinson, 2008 NSPC 79 (CanLII) The case was heard in 2009 by the NSSC R. v. Hutchinson, 2009 NSSC 51 (CanLII). That  decision was appealed and heard by the NSCA, R. v. Hutchinson, 2010 NSCA 3 (CanLII), which sent it back for a new trial.   Unfortunately I cannot find the report of the second trial (email me please if you have it) but Osgoode graduating 3L Meredith Bacal has a great piece from 2012,  here at theCourt.ca,  which describes the decision of Justice Coughlan – from which another appeal resulted.  This second appeal was heard in 2013 by the NSCA, R. v. Hutchinson, 2013 NSCA 1 (CanLII).  The 2013 decision was appealed to the Supreme Court.

here is the SCC summary of the case:

Mr. Hutchinson was charged with aggravated sexual assault for poking holes in the condoms he used with his partner, knowing she did not want to get pregnant. At his first trial, he was acquitted on a directed verdict, but the Court of Appeal reversed that decision and ordered a new trial. At retrial, Mr. Hutchinson was convicted of sexual assault because the trial judge found that while the complainant may have consented to the sexual intercourse, she did not consent to unprotected sexual intercourse. Mr. Hutchinson appealed his conviction, arguing that the complainant freely and voluntarily consented to having sexual intercourse with him and that his deception over the condoms, however reprehensible, was not enough to vitiate that consent. The majority of the Court of Appeal dismissed the appeal. Farrar J.A. would have allowed the appeal and ordered a new trial on the basis that the trial judge erred in finding that there was no consent under s. 273.1(1) of the Criminal Code, and that the proper approach would have been to determine whether consent was vitiated by fraud under s. 265(3)(c). (source)

The Supreme Court of Canada heard the appeal in November of 2013 (webcast here) with the bench consisting of the Chief Justice and Justices Abella,  Rothstein, Cromwell, Moldaver, Karakatsanis, and Wagner.

…..and it’s coming out on Friday.   The only intervener was Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario, although their Factum does not appear to be online either with the court or at either website (here, here). 

Other sources?  R v Mabior and R v DC: SEX, LIES, AND HIV: MABIOR AND THE CONCEPT OF SEXUAL FRAUD Martha Shaffer (Summer, 2013) 63 Univ. of Toronto L.J. 466 (mentions Hutchinson FN 6, and canvasses the surrounding legal context)