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Law can be the site through which women's dignity and equality can be expressed and pursued. Speaking the language of rights translates one's needs from private interests to public claims through words and concepts that the community – local, national and/or international – have already validated. Law can therefore offer a medium to confront the injustices and unfairness built into other systems of political, social and economic ordering. Women's rights advocates have won significant victories through law and have generated gains for women's dignity and equality. However, law can also be a place where women's rights are not only silenced but where social, economic and political power structures are replicated and work against women's rights.

This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s decision in Haj Khalil v. Canada. Given that this symposium in honour of Rose Voyvodic’s life and work is entitled “Re-Imagining Access to Justice,” this paper asks “how do the principles of cultural competence allow us to think about the facts of the Haj Khalil differently. In particular, what would a cause in fact analysis look like if it were informed by the principles of cultural competence?” My analysis proceeds by “reading the silences” or focusing on the unstated assumptions and unexplored elements of Haj Khalil’s story to bring into focus factors relevant to factual causation which remain largely unexplored or undervalued by the Federal Court. An examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case. While Canadian courts have emphasized the importance of social context for fair judgment, they have not fully come to grips with the implications of social context for judicial decision-making. This is particularly the case within negligence law which remains vexed by the need to maintain an objective standard while simultaneously recognizing the importance of context and circumstance to particular claims.Cet article souligne l’importance de la compétence culturelle pour le droit de la responsabilité civile délictuelle en analysant le jugement Haj Khalil c. Canada de la Cour Fédérale. Vu que ce symposium en honneur de la vie et de l’oeuvre de Rose Voyvodic est intitulé « Re-Imagining Access to Justice», cet article pose la question «comment les principes de compétence culturelle nous permettent-ils de concevoir différemment les faits de Haj Khalil. En particulier, comment se présenterait la causalité si l’analyse des faits était éclairée par les principes de compétence culturelle?» Mon analyse s’effectue en «interprétant les silences» ou en portant l’attention sur les suppositions inexprimées et les éléments inexplorés du récit de Haj Khalil afin de mettre au point des facteurs pertinents à la causalité factuelle qui restent en grande partie inexplorés ou sous-évalués par la Cour Fédérale. Un examen des faits sur la base desquels était formulée la réclamation de Haj Khalil contre les officiers de l’immigration dans une optique faisant preuve de compétence culturelle ouvrirait la possibilité d’une compréhension différente de la causalité telle qu’elle se présente basée sur les faits en l’espèce. Quoique les cours canadiennes aient souligné l’importance du contexte social pour des jugements équitables, elles ne sont pas complètement venues aux prises avec les implications du contexte social pour la prise de décision juridique. C’est particulièrement le cas pour le droit de la négligence qui demeure embêté par le besoin de maintenir une norme objective tout en reconnaissant l’importance du contexte et des circonstances d’une réclamation particulière.

Even if they did not procure or otherwise contribute to the torture of nationals abroad, Canadian officials owe Canadian nationals a positive duty to prevent torture overseas. This duty is non-delegable in nature.

Tort law can only deliver justice if decision-makers exercise cultural competence; one cannot see the true suffering of the other by looking through a uni-cultural lens. A uni-cultural lens blurs the differences between people’s lived experiences and obscures the decision-maker’s capacity to understand the suffering of others, thereby silencing that suffering. This silencing in turn undermines the aims of tort law. This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s 2007 decision in Haj Khalil v. Canada. The Federal Court held that immigration officials did not owe a duty of care to Haj Khalil and could not be held accountable for the unreasonable delay in processing her application for permanent residency. It also ruled that the delay could not have caused her losses. I conclude that an examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case.

This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s decision in Haj Khalil v. Canada. Given that this symposium in honour of Rose Voyvodic’s life and work is entitled "Re-Imagining Access to Justice," this paper asks "how do the principles of cultural competence allow us to think about the facts of the Haj Khalil differently. In particular, what would a cause in fact analysis look like if it were informed by the principles of cultural competence?" My analysis proceeds by "reading the silences" or focusing on the unstated assumptions and unexplored elements of Haj Khalil’s story to bring into focus factors relevant to factual causation which remain largely unexplored or undervalued by the Federal Court. An examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case. While Canadian courts have emphasized the importance of social context for fair judgment, they have not fully come to grips with the implications of social context for judicial decision-making. This is particularly the case within negligence law which remains vexed by the need to maintain an objective standard while simultaneously recognizing the importance of context and circumstance to particular claims.

Access to justice scholars have moved from a uni-dimensional focus on the procedural and cost barriers that prevent individuals from bringing their claims to court, to a more holistic assessment of all aspects of the legal system. Focus has widened from simply an emphasis on "access" to an examination of "justice" as well. The trend is towards thinking of access to justice as three distinct yet interdependent components: substantive justice which concerns itself with an assessment of the rights claims that are available to those who seek a remedy; procedural aspects which focus on the opportunities and barriers to getting one’s claim into court (or other dispute resolution forum); and, the symbolic component of access to justice which steps outside of doctrinal law and asks to what extent a particular legal regime promotes citizens’ belonging and empowerment.

Law serves as the site through which Canada expresses its commitment to the global war effort, showing its willingness to suspend the rights of citizens and non-citizens alike in the name of national and international security. After the bombing of Pearl Harbor, for example, Canada legislated for the internment of individuals with Japanese ancestry, confiscated their property, stripped them of citizenship and deported them to Japan, even if they did not have concrete ties to that country. Canadian history has demonstrated that one cannot understand the demarcation between those who are imagined to belong to the community and those who are constructed as ‘foreigners’ simply on the basis of citizenship. Rather, the demarcation has also historically been constructed along racial lines. In times of war, the law speaks loudly and clearly against those who are regarded as undesirable, untrustworthy and foreign.

United Nations Security Council Resolution 1325 calls for a more active role for women in the prevention and reconciliation of conflicts. Focusing on the Palestinian Right of Return and the work of a feminist organization called the Jerusalem Link, this paper examines Resolution 1325’s premise that women can make a unique contribution to peace building. As “transfer” or the ethnic cleansing of Palestinians from the West Bank and Gaza looms on the horizon, scholars, advocates, and policy-makers must pay more attention to the work of women peace-builders because they might be able to help chart a path towards a real and just solution on seemingly intractable issues such as the Right of Return.