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UN determines NWT woman was discriminated against

Lyndsay Herman
Northern News Services
Published Monday, May 7, 2012

Cecilia Kell has finally received affirmation that she was treated unfairly by the Canadian legal system and the Northwest Territories Housing Corporation (NWTHC) after 20 years of fighting.

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Arlene Hache: Pleased with results of UN discrimination ruling.

The affirmation comes from a United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) judgement against the Government of Canada and its agents, the first of its kind, for acting prejudicially and discriminating against Kell as an aboriginal woman.

"They covered it all," said Arlene Hache, a representative spokesperson for Kell. "We were ecstatic over the victory."

The conflict started in the early 1990s when Kell's ex-partner, William Senych, had Kell's name wrongfully removed by the NWT Housing Corporation from the Assignment of Lease, which certified their co-ownership of the Behchoko house they lived in.

Kell had been admitted to McAteer House in Yellowknife in early 1995, in an attempt to escape regular abuse she received from Senych.

Senych, who was serving as a director of the Housing Authority Board at the time, had her name removed from the lease and changed the locks on the house while Kell was in Yellowknife.

When she tried to return to her home, she was notified by Senych's lawyer that she had been evicted from the property and would not be permitted back, save for one opportunity to collect her things.

Kell was advised by her lawyer, provided by legal aid, to follow the evacuation request and did not challenge its validity.

Kell filed the first court action against Senych before the NWT Supreme Court in May 1995. Proceedings were delayed when Senych became ill with cancer and died in November 1995.

Legal delays continued and ultimately the Supreme Court ruled against Kell for not pursuing her claim diligently. The Court ordered that Kell pay all legal fees as well.

Hache said the court essentially victimized Kell instead of holding the lawyers who represented her accountable for not diligently pursuing the case. Hache also said the court restricted Kell's opportunity to pursue the matter herself by making demands that were impossible for her to meet.

"They wouldn't let her pursue the matter further without putting up a lot of money, which she could not provide, being a single mom and in her situation," said Hache.

"We were left with no options other than to take it to the United Nations. Had the United Nations not considered her case under the convention, she would not have received justice."

Hache said one of the major problems was that Kell's lawyers did not understand her cultural understanding of 'home' and were not able to advise her based on her individual needs and interests.

Two recommendations of the CEDAW report included improved legal aid available to aboriginal women through a review of the current legal aid system as well as by recruiting and training aboriginal women to work in legal aid.

Sue Glowach, senior communications adviser for the GNWT Department of Justice, said a lot has changed since the case began 20 years ago and there are no planned changes in light of the recommendations.

"There have been a number of changes since that time, including the implementation of the Protection Against Family Violence Act," stated Glowach in an e-mail.

"Currently the Legal Aid Services Board staff lawyers represent both men and women and include both aboriginal men and women. In addition, most of the court workers employed by the board are aboriginal women."

David Stewart, president and CEO of the NWTHC, said many more checks and balances are now in place to ensure a situation like this does not occur.

"Any time you would see a change in somebody being removed from a homeownership document it would require ... legal council much more directly involved than, I think, was probably the case back then and certainly when it would get to headquarters, we would be absolutely insistent that there be signatures from both parties to change that kind of an arrangement," he said.

The next step for Kell is to meet with the NWT Housing Corporation and find a resolution, something Stewart said the housing corporation is keen on doing as well.

The United Nations has required the Canadian government to submit a report regarding any action taken in response to these recommendations within six months.

Elizabeth Portland, a Yellowknife resident, applauds the recommendations and states in a letter to media and territorial leaders that she hopes the GNWT will be able to report full compliance before the six month deadline.

"(The report) is a recognition and strengthening of our human rights, for everyone," she told News/North.

"I thought that the remedy given was appropriate and I hope it's implemented immediately. It's very encouraging."

Fact file

UN recommendations to the Canadian government and its agents

Recommendations concerning Cecilia Kell

Provide housing commensurate in quality, location, and size to the one that she was deprived of

Provide appropriate monetary compensation for material and moral damages commensurate with the gravity of the violations of her rights

General Recommendations

Recruit and train more Aboriginal women to provide legal aid to women from their communities, including on domestic violence and property rights

Review its legal aid system to ensure that aboriginal women who are victims of domestic violence have effective access to justice

Source: United Nations Convention on the Elimination of All Forms of Discrimination against Women

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