‘Kell v Canada: Revaluating the CEDAW Decision in a Feminist Light’

Hart Publishing
Publication Type:
Feminist Judgments in International Law, 2019, pp. 333 - 372
Issue Date:
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In 2008, Cecilia Kell, an indigenous woman from the Behchokǫ̀ community in Canada’s Northwest Territories (NWT), submitted a complaint to the Committee on the Elimination of Discrimination against Women (‘CEDAW Committee’). Over a decade earlier, Kell had been living in a common-law relationship with her partner, William Senych. Together, they had lived in housing specially set aside for indigenous people, allocated by the Northwest Territories Housing Corporation. Senych himself was not indigenous. Senych was abusive, and Kell was forced from their home on multiple occasions. On one occasion, she returned to find the locks changed, and to discover that Senych, who was a member of the Community’s housing board, had exploited his position on the board to have her name removed from the title to the property. Over the next 11 years, Kell struggled to regain her home. In multiple engagements with the Canadian legal system, many of them mediated through state-provided legal aid lawyers, Kell found the law deaf to her claims. As a marginalised person seeking to be audible to the law, her struggles reveal the almost Kafkaesque nature of legal engagements for marginalised actors. Her legal aid lawyers advised her not to contest her forced removal from the home. They pursued compensation while she sought restitution of the home itself. They acted contrary to her instructions. The lack of independent funds to pursue her case hampered her. Her claims were dismissed without written reasons. Throughout, however, she remained committed to one aim: regaining her home. Although the CEDAW Committee found in Kell’s favour, our re-written decision is motivated by a number of issues that we perceive to be problematic with the CEDAW views in this case from a feminist perspective. Notably, the CEDAW Committee’s decision hints at, but fails to fully expose, the multiple ways in which the law marginalised and silenced Cecilia Kell. The decision reveals a failure to grasp the intersectional nature of the discrimination that Kell experienced, and its impact on her ability to pursue her legal claims. More particularly, we were unsatisfied with the construction and application of some of the CEDAW provisions, notably on the right to housing, the right to independently conclude a contract, and on women’s property ownership. We were also surprised that the Committee did not pay more attention to Kell’s indigeneity and the fact that the loss of her housing had resulted from abuse suffered in the home. The Kell case is representative of the problems that face marginalised women when they seek to assert their rights both in domestic legal contexts, and indeed under CEDAW. As such, we have re-written this decision to make evident the ways in which the law can silence or render the claims of women invisible. But also to demonstrate how the law – and specifically CEDAW – can, using alternative (and importantly, feminist) methodologies, hear and see them. Our work here is informed by insights from film theory, particularly the concept of the ‘space
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