N.S. v. R. (Ontario C.A.)(Appeal scheduled for June 8 & 9, 2010)

N.S involves a sexual assault complainant who wears a niqab – a veil which covers the face, with the exception of the eyes. N.S. alleges that she was sexually abused as a child from the ages of 6 – 12. She is now in her early 30s. The accused are the complainant’s uncle and cousin. N.S. reported the alleged abuse to a teacher when she was a child, but her father convinced the police not to lay charges.

The accused object to N.S. wearing her niqab while giving evidence at the preliminary inquiry and trial, asserting a right to “demeanour evidence”, including N.S.’s full facial expressions. The preliminary inquiry judge ordered the complainant to remove her niqab. On appeal to the Ontario Court of Appeal, N.S. seeks an Order that she is entitled to wear her niqab at the preliminary inquiry and trial.

LEAF’s factum argues that N.S. is entitled to wear her niqab at the preliminary inquiry and trial, and that an Order requiring N.S. to remove her niqab as a precondition to testifying would violate her rights under ss.7 and 15 of the Charter.

LEAF argues that the accuseds’ objection to the complainant testifying in her niqab must be situated in the context of the historical and ongoing legal and procedural norms which re-victimize sexual assault complainants and reinforce their inequality. In particular, the objection must be seen in the context of defence tactics to “whack the complainant”, in an attempt to humiliate and intimidate complainants so that they withdraw from participating at trial or are diminished and beaten down as witnesses for trial.

LEAF argues that whatever one’s personal views are on the niqab, effectively disenfranchising sexual assault complainants who wear the niqab from the criminal justice system is inconsistent with promoting their substantive equality and respecting and protecting their s.7 Charter rights to life, liberty and security of the person.

Withler v. Canada (SCC) (Heard March 17, 2010)

On March 17, 2010, LEAF intervened in the Supreme Court of Canada case of Withler v. Canada. The case is significant since it is the first appeal heard by the Supreme Court of Canada in over two years in which the only basis for the challenge is a violation of s.15 equality rights under the Charter. LEAF intervened to advance the equality rights analysis to ensure that the legal test fully accounts for the lived realities of marginalized groups. Specifically, LEAF’s factum focused on the role of comparison in the discrimination analysis. LEAF also intervened to emphasize the gendered dimension of the age-based discrimination challenge.

Withler involves a federal government supplementary death benefit (“SDB”) paid to spouses of deceased civil servants and armed forces members. The claimants allege that the legislation discriminates based on age because the death benefit payout decreases by 10 per cent each year for ten years once the participant lives beyond the age 60 or 65, at which point the participant’s spouse is entitled only to a minimum paid –up benefit. The claimant class members are spouses of deceased civil servants and armed forces members. Noting that the overwhelming majority of surviving spouses are women, LEAF argued that the Supreme Court must consider the specific impact of the reduced benefit on elderly women. LEAF emphasized the financial vulnerability of elderly women, arising from the effects of systemic labour market discrimination, their caregiving roles and the limited participation of women in the workforce historically. LEAF argued that the exclusion of predominantly elderly single women from a scheme which is intended to offer transitional funding upon the death of a spouse is discriminatory; the exclusion exacerbates their already existing economic and social inequality.

The Supreme Court of Canada reserved judgment.

Caron v. Alberta (SCC)(Heard April 13, 2010)

LEAF, in coalition with the Council of Canadians with Disabilities, the Charter Committee on Poverty Issues and the Poverty and Human Rights Law Centre, intervened in the Supreme Court of Canada case of Alberta v. Caron. The appeal concerns the discretion of the Courts to award advance costs to claimants who would otherwise be unable to litigate their public interest claims. The test for advance interim costs, also referred to as Okanagan costs, was set out by the Supreme Court of Canada in its 1993 decision in British Columbia (Minister of Forests) v. Okanagan Indian Band. The Coalition factum argues that the Okanagan test must be considered in light of a contemporary understanding of the rule of law, the norm of substantive equality and the principle of access to justice as well as the legal principles underlying Canada’s international human rights obligations.

The decision of the Supreme Court in Caron will have significant implications for access to justice for disadvantaged and marginalized groups. Over the past decade, the elimination of the Court Challenges Programme, restricted access to legal aid, and the decreased availability of any other sources of funding for equality seekers to enforce and advance their constitutional rights, have increased the barriers to access to justice for marginalized groups. Systemic barriers to the court process reinforce the subordination of poor litigants who are members of historically marginalized groups, such as women, people with disabilities, racial minorities and Aboriginal people, and as a consequence subvert justice in a constitutional democracy. The Coalition factum argues that the interests of justice require that legal claims that seek to advance the full social and political participation of marginalized and minority groups fall within the class of “exceptional” cases which are deserving of advance costs

The appeal was heard by the Supreme Court of Canada on April 13, 2010. The Court reserved judgment.

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