Refugee door pried open for Haitian women fearing rape
Haitis worsening rape problem targets women, judge finds
Tracey Tyler Legal Affairs Reporter
Published On Thu May 27 2010
A groundbreaking Federal Court ruling has opened doors to Haitian women who are seeking refugee status in Canada because they are afraid of being raped in their own country, where sexual violence is a growing problem.
It means a Haitian woman making a refugee claim on that basis should succeed, as long as conditions in Haiti remain as they are now, said lawyer Raoul Boulakia.
Boulakia represents Elmancia Dezameau, a Haitian-born mother of four who sought refugee protection after arriving in Toronto in 2007, arguing she and her four daughters were at risk of being targeted for rape if she were returned home.
In support of her case, Boulakia filed reports from several international aid agencies, including Amnesty International and Doctors Without Borders, which identified rape as a systemic problem in Haiti, one that has worsened since Januarys earthquake.
Last year, however, an Immigration and Refugee Board adjudicator dismissed her claim.
Adjudicator Michael Hamelin said Dezameau was at risk of being raped not because she was a woman, but because violence is such a widespread problem in Haiti, one that places everyone in the country at risk of becoming a crime victim.
Several other refugee claims from Haitian women have been rejected on the same basis.
But Justice Yvon Pinard, in a decision Thursday, said the notion that rapists are motivated by a general desire to resort to criminal activity and that the victims sex is irrelevant is wrong according to Canadian law.
Nearly 20 years ago, he said, the Supreme Court of Canada ruled that sexual assault is not like any other crime and targets women in the vast majority of cases.
Pinard also noted that as far back as 1994, Human Rights Watch documented harrowing stories of sexual violence in Haiti, which included rape, women having their breasts bludgeoned and womens rights organizations being attacked.
It provides a historical social context which describes Haitian women as specific targets by the military, and civilian armed gangs, the judge said in his decision. This clearly contradicts the boards assertion that rape is an act of violence faced generally by all Haitians.
Boulakia said it is the first time the Federal Court, in a refugee case, has approached the issue of rape in the same way it has been treated in Canadian criminal courts for almost two decades as a crime grounded in the status of women in society.
Lawyers for the federal government argued that if Dezameau won her case, all female refugee claimants from Haiti would automatically be granted refugee protection simply because they are women.
Pinard rejected that argument, saying female refugee claimants from Haiti will still have to prove their risk of being raped is more than a mere possibility.
The judge sent Dezameaus claim back to the Immigration and Refugee Board to be heard by another adjudicator.
After finishing work Thursday night, Dezameau, who is employed as a maid, told the Star she is glad the decision gives her an excellent chance of remaining in Canada.
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