CEDAW/C/51/D/19/2008
State party further argues that the author did not exhaust all domestic appeal routes in
respect of any of her three court actions: for the first action, she did not appeal to the Court
of Appeal for the Northwest Territories; for the second action, she did not appeal to the
Supreme Court of Canada; and the third action was dismissed by the Supreme Court of the
Northwest Territories. Therefore, the State party submits that the entire communication
should be deemed inadmissible for failure to exhaust domestic remedies under article 4,
paragraph 1, of the Optional Protocol.
4.5
The State party is of the view that the communication neither singles out any
particular legislation or policy of the Government of Canada or the Government of the
Northwest Territories as being discriminatory, nor points to any pattern of discrimination,
and does not otherwise demonstrate how the Government of Canada or the Government of
the Northwest Territories, or its agents, have discriminated against the author or women in
general on the basis of sex, marital status, cultural heritage or place of residence, or any
other ground of discrimination. The State party further argues that the communication is not
sufficiently substantiated, as the author has not submitted any evidence which would
substantiate the allegation of discrimination against the author or women in general.
Author’s comments on the State party’s observations on admissibility
5.1
In her submission of 1 March 2010, the author, in response to the State party’s
submission on admissibility, claims that the communication should be dealt with on the
merits in accordance with both the doctrine of ―equity contra legem,‖ as the use of equity in
derogation of the law, where, under the circumstances of the case, an exception to the law is
needed to achieve an equitable and just result; and the doctrine of ―equity intra legem,‖ as
the Court’s power to interpret and apply the law to achieve the most equitable result. The
author also submits that the legal system did not understand the aboriginal way of solving
disputes or the particular spiritual connection that the author had with the land.
5.2
With regard to the admissibility ratione temporis, the author submits that
discrimination has continued after the date of the critical event. In relation to the
requirement to exhaust domestic remedies, the author claims that she did not have entire
control over the delays in taking action on her case. She also claims that the application of
certain domestic remedies would have been unreasonably prolonged and unlikely to give
effective relief. The author further claims that she would not have been approved for legal
assistance to file an appeal before the Supreme Court of Canada.
State party’s further submission on admissibility
6.1
By further submission on 13 April 2010, the State party reiterates that the
communication is inadmissible on the following grounds: ratione temporis pursuant to
article 4, paragraph 2(e) of the Optional Protocol; non-exhaustion of domestic remedies
pursuant to article 4, paragraph 1; and manifestly ill-founded pursuant to article 4,
paragraph 2(c), of the Optional Protocol.
Issues and proceedings before the Committee concerning admissibility
7.1
During its 47th session, from 4 to 27 October 2010, the Committee on the
Elimination of Discrimination against Women decided, in accordance with rules 64 and 66
of its rules of procedure, to consider the question of admissibility and the merits of the
communication separately.
7.2
The Committee considered the admissibility of the communication, in accordance
with rules 64 and 66 of its rules of procedure. In accordance with article 4, paragraph 2, of
the Optional Protocol, the Committee was satisfied that the same matter has not been or is
not being examined under another procedure of international investigation or settlement.
7