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the oppression tree

Early in the summer at CLD, I volunteered to write an open letter to the Minister of Public Works and Procurement regarding an “interim prohibitory order” (IPO) she had issued against James Sears, the editor-in-chief of a particularly abhorrent publication called “Your Ward News.” I would suggest you look up the publication (TW: anti-Semitism, racism misogyny, general white supremacy), but I don’t know if you want that in your search history.

The IPO, issued in 2016 and under review in 2017, prevents Sears from receiving or posting any mail. It was issued pursuant to s. 43(1) of the Canada Post Corporation Act, which allows the Minister to step in when they have reasonable grounds to believe that someone is using the postal service to commit a criminal offence. In Sears’ case, Minister Judy Foote’s office stated that it had reasonable grounds to believe that Sears was committing the criminal offences of defamatory libel and wilfully promoting hatred against an identifiable group under ss. 300 and 319(2) respectively of the Criminal Code. The Minister did not identify the specific articles or comments which she and her office considered to be libellous or to constitute hate speech.

When I first read about the IPO, my gut response was “Good. You go, Judy.”

I mean Sears is (in my unprofessional and unclinical opinion) a narcissist. And if not, he is definitely racist and definitely harbours some deeply entrenched and alarming beliefs about male superiority.

In addition to being the “editor-in-chief” of a publication I don’t even want to legitimize by characterizing as rag, he considers himself a professional pickup artist. He goes by the name “Dimitri the Lover” and runs “seduction workshops” through the “Toronto Real Men” club, which he refers to “the world’s FIRST and ONLY Seduction Lair” (emphasis in original).

James is also a former physician but was ultimately stripped of his medical licence in 1992 after a long history of sexual impropriety towards female patients. He, in fact, pled guilty to two counts of sexual assault, though those convictions were overturned and an acquittal entered on appeal.

Needless to say, I was not super comfortable with the idea of writing a letter in support of this dude. So why did I volunteer to write it? Because it’s good practice. By virtue of the nature of their role, lawyers are bound to represent interests that are not their own and argue the law even when they don’t agree with it. This is particularly true of defenders of civil liberties. I’m sure Sukanya Pillay, Executive Director of the Canadian Civil Liberties Association, has no particular desire to be associated with the views of James Sears, but she has spoken up on his behalf nonetheless. As a student particularly interested in criminal law, I figured I’d better get used to navigating these situations

It was a great learning opportunity. I became familiar with the arguments commonly used in support of “free speech”. One argument that came up time and again was that “people don’t have a right not to be offended”. I have a hard time with this one. Such an argument denies that there are real issues and rights at stake. Further, this argument too often betrays the privilege of the speaker and their failure to understand the self-sustaining character of systems of oppression. The dissemination of prejudicial speech is harmful not because it’s offensive, but because it legitimizes and reinforces the systems of oppression at the root of social inequality and discrimination.

I recently participated in an anti-oppression workshop in which the facilitators analogized various systems of oppression to a tree. The objective of the exercise was to impress upon participants the complexity and rootedness of these systems. I believe (or suspect) that the exercise was inspired by ‘The Tree of Patriarchy’ metaphor, which appeared in sociologist Allan G Johnson “The Gender Knot”. In our adaptation, the leaves of the tree represented discrete moments of discrimination – manifestations of prejudice. The branches were the beliefs and values that underlie these moments and which are in turn supported by institutions, represented by the trunk. Far more than just words, hateful or discriminatory speech is an expression of the values and ideas reflected in our institutions. Ultimately, systems of oppression are rooted in deeply entrenched normative theories and principles about human nature and the operation of society. In the same way that a tree is fed by both its roots and leaves, systems of oppression are self-sustaining

But what happens when we strip away the branches – when we censor harmful expression? Would it just create a “PC culture” – as the facilitator referred to it – or would it have an impact in creating a more just society?

…sounds like a term paper.

On Mountains, Skies, and Llamas

by Jessye Kilburn

Suddenly it’s fall, my internship is over, and next year’s interns will soon be perusing this blog as they work on their applications. I didn’t want my last blog post to give prospective interns the impression that all I did was sit around and think angsty thoughts about the ocean! So here is a little glimpse into life outside the office.

South Table Mountain Park is accessible by bus/foot from Denver, with beautiful views into the Rockies.

Chattauqua Park is full of trails accessible by bus from Boulder.

The Royal Arch in Chattauqua: a steep but worthwhile climb!

To really get up into the Rockies, you have to go by car (but it’s so worth it!)


Yes, these are llamas. And, yes, I got to go hiking with them (!)

Colorado’s sunsets are amazing, and I was a little obsessed.

Red Rocks amphitheatre is an outdoor concert venue carved out of Colorado’s red rock formations. Seeing the symphony play Holst’s “Planets” and Mozart’s “Jupiter” out under the stars was a huge highlight.

Even within the big city of Denver there are pretty little lakes: this was my favourite running route.

So, yes, even this BC girl was pretty impressed with Colorado’s natural beauty: combined with fascinating internship work, it made for an incredible summer.

Science Fiction and Empiricism: On Imagining and Measuring a Better Future

Greenberg AnastasiaBy Anastasia Greenberg

Hanging unassumingly on a wall in the hallway that divides the Research Department from several other departments at One Earth Future Foundation (OEF) is a framed version of OEF’s Institutional Logic Framework: a manifesto followed by a sort of “ten commandments” listing the organization’s core values. This mundane framed text is sandwiched between walls that are adorned with large colourful emotionally provoking photographs taken across several countries in sub-Saharan Africa – quite the juxtaposition. While OEF staff seem to pay little attention to this moral code passed down to them by the Board of Directors; the upper management, on the other hand, seem to taut these phrases in an almost cult-like fashion at every staff meeting. One of these “commandments” – my personal favourite – is: “we are relentlessly empirical”. OEF clearly has a penchant for hard data and quantitative research methodology, which is why I was surprised to walk into a development talk one day at the office led by a PhD graduate who has decided to venture outside the academic lines by pursuing science fiction.

The project that was being presented, led by Dr. Andrew Merrie, is called Radical Ocean Futures. Using a method called “science fiction prototyping”, Merrie wrote a compilation of four science fiction stories to depict four different future scenarios for the world’s oceans, integrating some predictions loosely based on scientific research on ocean health. Two of the scenarios were dystopian. In one, ocean life has died off and humanity with it, leaving behind a sole surviving fisherman. In the other, a complete industrialization of the oceans has taken place. The last two scenarios are more utopian: humanity survives sea level rise by living in underwater cities, and the most favorable scenario is that in which humanity succeeds at a sustainable ocean future, featuring robots responsible for cleaning and upkeep of ocean health. What’s more, is that Merrie also commissioned a high-profile concept artist, Simon Stålenhag, to create incredible digital artworks to represent each sci-fi scenario.

While I found all of this engaging and entertaining from an artistic point of view, what really struck me was the audience that Merrie was able to target outside of sci-fi nerds. News outlets picked up the story immediately. Most impressively, Merrie was recently invited to present this work at the United Nations Ocean Conference, with Stålenhag’s artwork displayed throughout the event. Academics from the environmental sciences have been warning us about the grave realities of climate change effects on the oceans for decades, but apparently science fiction and art were the channels that could get policymakers to tune in.

This got me thinking about the word “impact”: what does it mean and how do we measure it? In a world that is increasingly data-driven, OEF is feeling that thirst for empiricism. While the Radical Oceans project is only loosely based on actual empirical information, OEF was drawn by the perceived “impact” that it was having on their stakeholders of interest. OEF has been undergoing some major changes to their organizational structure and mandate, and a major part of this change will be to solidify a way to measure the organization’s social impact.

Coming from an academic background, the word “impact” and its measurement has always meant something very specific to me. A scientist’s “impact” is measured by a very precise formula that takes into account the number of publications that one has and the number of citations that each of those publications has accumulated. This essentially measures how influential one’s work has been on the scientific community, but not necessarily beyond those academic boarders.

My connotation of the word “impact” has really started to evolve. OEF is a multifaceted NGO that aims not only to have others cite its research and policy reports but to actively facilitate peaceful conflict resolution in fragile states. Impact in this realm is really hard to measure. However, OEF is also “relentlessly empirical” and it is difficult to pride themselves in this regard without any tangible measure of their impact on peace.

Peace is not only difficult to measure, but even to define. At staff meetings, conversations constantly revolve around concepts of “negative” versus “positive” peace and which of these OEF should concern themselves with. Negative peace is the absence of violence and war. This is relatively simple to measure, the so called “body bag count” will do. The Global Peace Index (GPI) is a sophisticated attempt by the Institute for Economics and Peace to measure such negative peace. The GPI gives a peacefulness score for every country based on several factors including: numbers of internal and international violent conflicts that a country is involved in, levels of violent crime, political instability, as well as military expenditure. The GPI is updated on an annual basis so that progress over time can be assessed. Of course, even measuring such negative peace statistics accurately, as the GPI tries to do, is just the first step in figuring out whether a small organization like OEF has any causal role in the measured progress towards peace.

Positive peace on the other hand, deals with structural violence, issues such as: poverty, discrimination, inequality and other social injustices. Negative peace is reactive, while positive peace is proactive. While even measures of negative peace can be highly contentious, positive peace is substantially more difficult to define and measure. Nevertheless, the Positive Peace Index tries to do just that by considering the effectiveness of government institutions, levels of corruption, freedom of information, and so forth.

Although such complex information is aggregated into numbers, the data tells a rich story much like those sci-fi scenarios. These data come with their own artistic depictions, albeit less awe-inspiring. The picture below shows that the PPI has been improving on average across countries for the past decade, with about three quarters of all countries showing an improvement in positive peace. These data seem to point towards the possibility of a more utopian future scenario. Quantifying peace in such a manner has always been politically controversial, especially when dealing with governments of countries who score low on these “Western” standards of peace. This is a legitimate criticism given how many facets of life an index such as the PPI will inevitably omit.

Given that peace is such an elusive concept, is it futile to attempt to measure it and the social impact of NGOs like OEF? As Steve Killelea, founder of the Institute for Economics and Peace, has said: “If you don’t measure peace, how can you understand it?“. Thinking back to science fiction prototyping in the context of the future of peacebuilding, I can imagine a dystopian scenario in which we have given up hope on measuring peace and the world has spiraled into perpetual violent conflict. On the utopian end of the spectrum, a meaningful way of measuring social impact and peace has become a reality. In this future, we can even diagnose early signs of political conflict and initiate the right preventive measures – a “positive peace” approach. To get to this utopia, we need an empirical and critical approach that challenges the meaning of impact, peace, and a deep understanding of the data that shed light on these issues. And maybe a little art can help too.

 

The Story and Relevance of Christine de Pizan (1364 – 1430)

By Monika Erzsebet Berenyi

The narratives, movements, texts and happening of the past draw us inextricably into the present, and it would be careless and limiting to conceptualize the parameters and content of the women, peace, and security agenda, so expressed by UN Security Council Resolution 1325, without revisiting the lengthy history of its progenitors. The efforts, achievements and struggles of those who fought for and forged the very ideas upon which the contemporary policy stands, continue to provide us with guidance, inspiration, and reference points – which mirror the path of our past whilst reflecting the present.

In this context, I return to the medieval era – France to be precise, and draw from the story of Christine de Pizan – a writer, historiographer, and activist, whose cunning wisdom, words and legacy – cumulatively, a representative of a watershed moment in women’s history. For those unfamiliar with de Pizan, her writings were instrumental for enabling the concept of equality for women in medieval France, and her works are considered to be among the earliest feminist writings, inclusive of novels, biography, autobiography, along with political, literary and social commentary. Here it is also important to highlight that the work of de Pizan should also be appreciated within a spectrum of other great medieval women writers, activists, warriors, and leaders – whose courage and work continues to anchor many a discussion regarding women’s rights and equality. I recount the words and actions of Christine de Pizan, thus, in company with the likes of Marie de France, Eleanor of Aquitaine, Margery Kemp, Trota of Salerno, Hildegarde of Bingen, the women troubadours, and many others. The imperative importance of and appreciation for the stories, actions and creativity of medieval women are a source of truth and inspiration to me, – which have also come to illuminate my “contemporary” workspace at Our Secure Future (One Earth Future Foundation). Encouraged to transcend space and time, from the happenings and context of medieval France to the present foothills of Boulder County, I count myself fortunate to be surrounded by individuals, who bear a consciousness and appreciation for the past. For, as history continues to show, it is our predecessors who set the tone for bringing life, energy and movement into the formation and dissemination of new policies. Thus, at Our Secure Future, we remember the story of Christine de Pizan while we face and grapple with the continued challenges of achieving equality and peacebuilding for a better future.

Christine de Pizan was born in Venice and was raised at court in Paris. In 1380, the young Christine de Pizan married Etienne du Castel – a nobleman from Picardy, who supported her passion for education, writing and advocacy. Widowed during her early 20s, she chose to continue her passion and talent for writing, supporting herself and three children, on the fruits of her labour. In sum, she may be understood, or viewed, as one of the first women in history to have lived solely from creative endeavour.

I cite here two works, which allow me to transcend the past with the present. In The Book of the City of Ladies (Le Livre de la Cité des Dames), completed in 1405, the social importance and imperative of women’s equality in the context of relationships and partnerships is exemplified both anecdotally and metaphorically. A deeper reading of this work, or perhaps, reading between the lines, brings the notion of human security to mind, such that only through equality, can networks of sustainable and lasting peace, for society, be achieved and fortified. In this respect, I am encouraged to consider the relatively of the roots of de Pizan’s arguments, which highlight women’s independence while advocating for uniform opportunities and equal rights through a subtle and powerful approach.

With clarity of vision for a better present and future, de Pizan showed how equal treatment and fairness, in everyday contexts, can improve the ebb and flow of life of equality of all. In this respect, de Pizan used the power of the written word at the intersection of the quotidian and Christian morality, coupled with a stylized ability to deploy rhetorical strategy, to illuminate and challenge societal behaviour and sources of women’s oppression. In sum, her ability to deliver a message based in gender equality, so many centuries ago, was both insightful and intuitive – and is one which echoes her visionary ability to delineate the critical role women play in the greater process of conflict prevention, conflict resolution and peacebuilding.

I also cite the work The Book of Deeds of Arms and of Chivalry (Le Livre des faits d’armes et de chevalerie), completed by 1410. This book may be conceptualized as a strategic resource for its time, as it provided a vernacular study of military strategy and warfare, coupled with a discussion on the meaning of “just” war. The work is particularly important for the perspective it provides, suggesting arguments for why and how women could be equally knowledgeable and capable as men, to the discussion of war and conflict prevention, and to the facilitation of counsel for that matter.

To conclude, Christine de Pizan conveyed her opinions with subtlety, through the medium of the written word, supported by the framework of the illuminated manuscript. In the twenty-first century, deconstructing the lessons de Pizan chose to express, the issues she addressed, and the mechanism within which she deployed her message, affirm the breadth and depth of the peace, which informed her approach to penetrating the constraints and rigidity of patriarchal society. When considering the power of documentary media, her work and integrity of character, were groundbreaking for their time, as they sounded the alarm – by way of text, image, and action with respect to the hazards, which inequality poses to society.

I am humbled by having been able to learn about the story of Christine de Pizan, by reconnecting the meaning, integrity, and relativity of her story to the work, which informs my days at Our Secure Future – affirming that justice remains a continuous work in progress.

Image from Le Livre de la Cité des dames (Christine de Pizan reading in her study). Copyright of the Bibliothèque de Genève

Reflections on Kidnap for Ransom through the Lens of Private Law

by Amanda Arella 

This blog post was adapted from a presentation entitled “Duty of Care in the Context of Kidnap for Ransom”

One of my major project during the course of my internship at Oceans Beyond Piracy was to research duty of care in the context of kidnap for ransom. Specifically, I examined the duty of care that employers owed to their employees travelling abroad. Aid workers and other non-governmental employees who travel to conflict regions are particularly vulnerable to the growing phenomenon of kidnap for ransom.

While researching this question, I came across a court case between the Netherlands and Médecins Sans Fronitères. Etat de Pays-Bays c. Médecins Sans Fronitères was a case that went Switzerland’s highest judicial body, the Federal Tribunal revolving around the alleged payment of a ransom.

In 2002, Arjan Ekel, a Dutch national, was kidnapped while volunteering with Doctors Without Borders in Dagestan. He was released after 20 months in captivity upon the payment of a ransom of 1 million euros.  Following his release, the Dutch government sued MSF for the ransom amount, claiming it had arranged for a loan for MSF to cover the cost of the ransom. MSF countersued the Dutch government, arguing that it had been excluded from negotiations and never agreed to pay the money.

This case instantly captured my attention, and reflecting upon my work this summer, I realized that it is a good case study to highlight some of the issues I’ve focused on on this summer. Etat de Pays-Bays c. Médecins Sans Fronitères brings together the legal and the political elements of kidnap for ransom, and also ties in some of the fundamental elements of private law.

The three main elements at play in this case that I want to highlight, because they are all issues that came up again and again in my work this summer. This first is transparency in ransom negotiations, the second is the private law duty of care as it relates to non-governmental employees, and the third is contractual implications in cases of kidnap for ransom.

Transparency in Ransom Negotiations

This case is highly unusual for a variety of reasons, not the least of which being that non-government organizations and governments do not typically sue each other. Moreover, cases heard in court are part of the public record, a reality which stands in stark contradiction to the extremely secretive nature of most ransom negotiations.

The official position of virtually all countries and major NGOs is that they do not pay ransom. There are strong arguments in favour of this position: Many governments and organizations feel admitting to paying ransoms is tantamount to endangering their citizens or employees. Furthermore, there is a fear that publicly discussing negotiations many heighten the demands of kidnappers, and encourage further kidnapping.

However, the practical effect of this stance is that there is a lack of transparency as to what actually transpires when an individual is kidnapped. Whether or not a ransom is paid, there is often some level of official involvement both by governments and, in the case of aid workers, the organization they represent. This lack of transparency also comes at a cost. Firstly, it is very difficult to analyze trends in kidnapping, and to thus understand the full extent of kidnap for ransom in our modern world. Additionally, this lack of transparency discourages open conversation about kidnap for ransom. Together, these realities have profound implications.

Kidnap for ransom brings up many difficult ethical questions. While there is no consensus on best practices for addressing and eventually eliminating this phenomenon, there is a growing understanding that ransom payments are used to finance terrorism and criminal activities. Furthermore, the widespread instances of kidnap for ransom heightens violence and instability in the region where it takes place. These facts may illustrate some of the arguments in favour of a hardline stance against negotiating with kidnappers. Yet there can be no discussion of this question without acknowledging that a person’s life is at stake in every instance of kidnap for ransom.

The ethical questions of kidnap for ransom are an area which I have given much thought this summer, and to which I have no definitive answer. Familiarizing myself with this topic has only made it clearer to me that in an issue this complex and multi-faceted, a definitive solution or strategy to addressing the problem simply does not exist. It is for this reason that cases like Etat de Pays-Bays c. Médecins Sans Fronitères are so important. They provide an opportunity for all people to inform themselves on this issue and engage together in critical debate and reflection on kidnap for ransom.

Duty of Care and Non-Governmental Organizations

Next, the case reaffirms that nongovernmental organizations have a duty of care to their travelling employees. Duty of care is in many ways a moral duty enshrined in a legal principle that exists in virtually all legal jurisdictions in some form or another. It is legal obligation that requires a person or organization acts toward others and the public in a prudent manner to avoid the risk of reasonably foreseeable injury to those around them. Duty of care is premised on a relationship of proximity employer and employee.  Where an employer breaches the duty of care owed to an employee, they may be found civilly liable for negligence.

In order for a duty of care to exist, there must be a relationship of proximity between the wrongdoer and the victim. In virtually all jurisdictions, the relationship between employer and employee is considered sufficiently close for a duty of care to exist.

An organization may face liability risk when an employee is injured or killed while travelling abroad on behalf of the organization. Employers may be held to a higher standard of care in instances where employees enter into situations of heightened risk during the course of their work, as may be the case for employees travelling abroad on behalf of their employer. This higher standard of care includes identifying and planning for higher risks to employees, and may be satisfied by adopting employee safety and risk management practices.

Contractual Agreements

Ultimately, this case was decided on principles of contract law. Based on a letter between MSF Switzerland and the Dutch government, the Swiss Federal Tribunal held that the two parties must split the cost of the ransom. The Federal Tribunal found that in the letter, MSF put forward an offer, which was then accepted by the Dutch government. There was thus a meeting of the minds which produced a validly binding contract. It was particularly interesting to me that a case surrounding ransom payments – normally a topic which has largely been unexamined from a legal perspective, was decided through a well-established area of law.

Furthermore, this decision may have some significance for the growing phenomenon of kidnap and ransom insurance, in which employers or individuals themselves may take out insurance against the risk of kidnapping. These agreements are a new phenomenon that are in some ways uncharted territory, but are at their core contracts governed by deeply entrenched legal principles. It is unclear to what extent one or the other of these characterizations is more accurate. So too is it unclear if the extent to which government policies and political perceptions of this issue will interact with contract law.  Undoubtedly, there are many unanswered questions of the implications of bringing kidnap for ransom into the sphere of private law, making it a dynamic area for further examination.

Meeting the Survivors Behind the Cases

2016 Dionne Desbiens Esther-1By Esther Dionne Desbiens

My internship with Equality Effect & Ripples International in Meru, Kenya was amazing. I cannot believe how fast it went by. Kenya gave me a very warm karibu (welcome in Swahili), and for that I am very thankful.

On a gloomy day this July (one of the coolest months in Kenya), a coworker told the staff at Ripples International to “carry [our] own weather”. I thought this expression was such a nice reminder to be positive. While people at Ripples International did encourage each other to be positive, I did encounter a cultural difference here. In Canada, people would say I’m outgoing and friendly. However, at Ripples International, some of my colleagues said that my personality was like that of a cartoon character. I didn’t know if this was an insult or a compliment, but my Kenyan friend and colleague reassured me that it was a compliment! My personality was not the only thing that made me stand out in rural Kenya. Being a muzungu (person of European descent) did not go unnoticed. I would often be greeted with the word muzungu when running errands or just walking around. After learning some Swahili, I was able to respond to those greetings with sasa (how are you) to which people answered poa (good). This response sparked conversations as the people I interacted with realized that I was willing to learn more about their language and culture. Knowing some Swahili meant that I was no longer a stranger to Kenya, it showed that I was there to learn.

Now on to my work experience. This has been the most hands-on, field work focused and interactive legal experience. So much of my work as a legal intern for Equality Effect at Ripples International revolved around meeting police officers, magistrates, survivors and their guardians in many different settings. This internship had so much fieldwork, I really felt as though I was able to fully immerse myself not only in Kenyan culture, but also in the Kenyan criminal justice system. For example, on July 21st, Ashley and I spent less than one hour at the office. We started off the day at 7:00 talking about our internship in Kenya on the radio in Isiolo, we then conducted a guardian interview at the office, we then participated in a women’s support group meeting, and finally we ended our day at 18:00 in town to conduct another guardian interview. Continuously meeting passionate people wanting to contribute to the 160 Girls Project aiming to protect children from sexual abuse was truly inspiring.

On the radio for the second time in Isiolo with Gerald (Access to Justice Program Manager), Denson (Radio Host) and Ashley (Equality Effect Intern).

On the radio for the second time in Isiolo with Gerald (Access to Justice Program Manager), Denson (Radio Host) and Ashley (Equality Effect Intern).

My colleague Ann, social worker at Ripples International, introducing Ripples International to a women’s support group.

My colleague Ann, social worker at Ripples International, introducing Ripples International to a women’s support group.

I often found that while studying law, there is a disconnect between the judgments we read and the people’s stories behind these judgments. Studying for my extra-contractual law exam in first year, I found myself trying to memorize the case Bazley v Curry as if it was simply a case that I had to understand in order to do well on my exam. I stopped myself after a moment to think about this case which involved a Children’s Foundation employee sexually abusing children. What was I doing? I was simplifying this horrible story into a set of legal rules that I could use to answer the fact pattern on my exam. This moment of reflection made me aware of my lack of knowledge on the stories behind the decisions that I read for my law courses.

This internship has been a great way to fill the gap that I experienced in my law courses. As part of our police monitoring work, my colleagues and I closely followed around 40 cases by visiting police stations, contacting guardians and attending numerous court hearings. Not only did I know the case files of the survivors very well, but often, I interacted with the girls who lived at Tumaini Rescue Centre. I could piece the difficult stories we read in case files with the girls I spent time with at the shelter. While knowing the girls’ stories made my work difficult emotionally, interacting with the girls, and seeing how wonderful they are, really gave me hope that the support they receive from Equality Effect and Ripples International is bettering their lives.

Almost every Saturday, Ashley and I went to Tumaini Rescue Centre to play sports, draw and dance with the girls. Above is a picture taken when we were drawing with chalk in the yard.

Almost every Saturday, Ashley and I went to Tumaini Rescue Centre to play sports, draw and dance with the girls. Above is a picture taken when we were drawing with chalk in the yard.

A beautiful work of art found in Tumaini Rescue Centre to highlight the importance of expressive art therapy.

A beautiful work of art found in Tumaini Rescue Centre to highlight the importance of expressive art therapy.

Ashley and I met with one of the girls after she was discharged from the shelter. We had gone to her step-father’s judgment hearing in Githongo Law Courts where he was convicted to life imprisonment for sexually abusing her. Talking with her was truly inspiring. She first said the following: “I’d like to thank Ripples. Going through the case wasn’t easy at first, but I overcame.” She told us that Ripples International’s counselling gave her the courage to testify. Ashley and I even bonded with her after she told us, “I dream to be a lawyer. I especially would like to help the girl child.” We talked about law school and encouraged her to keep working hard in school. It’s wonderful to see such a strong girl wanting to give back to other survivors of sexual abuse. I hope her dream of becoming a lawyer comes true because we need compassionate and caring lawyers to advocate for children’s rights.

  This picture was taken during our meeting with this brave survivor who wants to become a lawyer!


This picture was taken during our meeting with this brave survivor who wants to become a lawyer!

Our internship was challenging at times, but overall, the experience was incredibly rewarding on emotional, social and legal levels. However, in court, I did encounter some access to justice issues that organizations such as Ripples International and Equality Effect are trying to mitigate by providing legal support to survivors.

Delays

One big problem was delays in court. We would often go to court and matters were delayed for many reasons: the magistrate was not in, the accused was not in custody, the accused was in custody but was not brought to court, the hearing was rescheduled. These delays were incredibly frustrating, particularly because at Tumaini Centre rescuing the girls is usually temporary. Thus, girls are often discharged after they testify. When court hearings are delayed, this means that the survivor cannot testify, thus cannot be discharged, and therefore cannot go back to school. A magistrate was worried about the delays for one of the girl’s case as not going to school would go against the best interest of the child. In Kenya, the best interest of the child is a primary consideration “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”. [1] This is an interesting difference with Canada, where the best interest of the child is a main concept in family law, but not a general overarching concept in all actions involving children.

Cross-Examinations

Another occurrence which shocked me in court is that the accused in Kenya will often cross-examine the witnesses (including the victim), as most accused are not represented by a lawyer. While Legal Aid and Pro-Bono programs are in place in Kenya, most are not yet operational. Our coworker in the Access to Justice Department noted that in theory, Kenya has great laws, but that in practice, it’s often a different story. I attended two victim testimony hearings during my three months in Kenya, and both times the accused cross-examined the victim. One time, I was the only person sitting between the victim and the accused. I felt like a buffer, but not a sufficient buffer to prevent further harm to the victim. This is an access to justice issue on two different levels. First, the accused person is disadvantaged because he/she does not know the procedural and evidentiary rules. Second, this impedes on the survivor’s emotional access to justice as being cross-examined by your perpetrator is a form of re-victimization. In Canada, it is very rare for an unrepresented accused to cross-examine the victim in a criminal case because of applications made by prosecutors under section 486.3 of the Criminal Code to appoint counsel for cross-examinations. This reality in Kenyan criminal law courts demonstrates a need for the implementation of testimonial aids.

Finally, awareness campaigns are really important to make sure the laws to protect children—the Sexual Offences Act, the Children Act, the Kenyan Constitution—are fully implemented. I ended my enriching internship on a very positive note. I helped the 160 Girls social worker, Cornelius, facilitate a “Girls for Justice” Public Legal Education session in a primary school. The children asked very thoughtful questions and were eager to participate when we taught them the 160 Girls anthem “Say No”.

Cornelius at the “Girls for Justice” Public Legal Education seminar.

Cornelius at the “Girls for Justice” Public Legal Education seminar.

I will never forget this internship, and I hope to come back to Kenya one day. Until then, asante sana (thank you very much) for this beautiful experience and tutaonana (goodbye and see you again) Kenya.

Beautiful Kenya.

Beautiful Kenya.

[1] Children Act, The Republic of Kenya, Revised Edition 2012 [2010], Chapter 141, s 4(2).

The Functioning of the Inter-American Human Rights System

2016 Gorence BriannaBy Brianna Gorence

My internship at the Inter-American Court of Human Rights (IACtHR) in San José, Costa Rica, began on May 24, 2016. For years I have admired the work that the Court does and, naturally, was ecstatic to be accepted in one of the three groups of visiting professionals and interns that support the Secretariat year-round at the Court.

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The visiting professionals and interns for the Summer of 2016.

My work at the Court consists in doing investigations on human rights issues, writing reports and generally supporting the senior and junior attorneys that I work for in the Secretariat. From June 20th to June 24th, the Court held its 54th Extraordinary Session and I was able to sit in on Andrade Salmón vs. Bolivia, a case alleging the mismanagement of public financial resources and the illegal and arbitrary detention of a mayor in La Paz, and Vereda La Esperanza vs. Colombia, a case alleging the forced disappearance of 14 persons in 1996 in El Carmen de Viboral, Antioquia, by paramilitary groups with alleged support and acquiescence of state agents.

My internship thus far at the Court has been very rewarding. Despite the enthusiasm I have felt about my personal experience, I want to explain the bigger picture—how the visiting professionals and interns fit into the larger scheme of the inter-American system for the protection of human rights. I want to respond to questions such as, how does the Inter-American system of human rights work, or, how does one bring a complaint before the Court?

To start at the beginning, the IACtHR, an organ of the Organization of American States (OAS), was created by the American Convention on Human Rights (ACHR) in 1969 and officially commenced operations in 1979 (after the ACHR entered into force in 1978). The Court celebrates four ordinary sessions per year, plus the extraordinary sessions when convoked by the president or the majority of the judges. The Court is composed of seven judges, all members of the OAS (Article 52 ACHR) and a Secretariat, whose mandate is to assist the judges in their functions. The Secretariat is composed of fewer than 30 attorneys and is supported by the indispensable work of the visiting professionals and interns.

To bring a case to the Court, the potential victim must lodge a complaint with the Commission (which was founded in 1959 and began its first of session in 1960). The Commission is composed of 7 commissioners, including a president and vice-president (their functions are defined by Article 41 ACHR). The Commission, unlike the Court, can examine potential violations of the American Declaration of the Rights and Duties of Man by all member states of the OAS, regardless if they are state parties to the ACHR. The Commission has received thousands of petitions, with a total of petitions 1758 received in 2014 and 2164 petitions received in 2015.[1] Around ninety percent of the petitions are rejected (see requirements in article 28 Rules of Procedure of the Inter-American Commission on Human Rights).[2]

Once the petition passes the preliminary examination by the Commission, the state is notified and has 3 months to provide information on the petition and respond to questions of admissibility (Article 30.3 Rules of Procedure of the Inter-American Commission on Human Rights). Based on the information provided by the parties, if the Commission determines that the petition has competence (via ratione personae, ratione loci, ratione temporis, ratione materiae and the fulfillment of the prerequisites in Article 46 ACHR—exhaustion of domestic remedies, compliance with temporal and non-duplicity requirements, and a legitimate violations of rights), the petition passes to the merits phase. In the merits phase, the petitioners have 4 months to present their additional observations, which are then transferred to the state, which in turn has 4 months to present its observations (Article 37 Rules of Procedure of the Inter-American Commission on Human Rights).

At this stage, the parties are encouraged to reach a friendly settlement (Article 48 ACHR). However, if none is reached, the Commission will draw up a report of the facts and its conclusions (Article 50 ACHR), allowing the petitioner one month to present its positions regarding the submission of the case to the Court (Article 44.3 Rules of Procedure of the Inter-American Commission on Human Rights). If the Commission considers that the state has not complied with the Commission’s recommendations, it can refer the case to the Court (51.1 ACHR; Article 45 Rules of Procedure of the Inter-American Commission on Human Rights).

In the initial proceedings before the Tribunal, the Commission presents the merits of the case to the Court (Article 35 Rules of Procedure of the IACtHR, Article 50 ACHR). After the Court ensures that the prerequisites are fulfilled, the representatives of the alleged victims have 2 months to present the brief containing pleadings, motions and evidence (Article 40 Rules of Procedure of the IACtHR), to which the state then has 2 months to respond (Article 41 Rules of Procedure of the IACtHR).

The Court will subsequently hold oral proceedings, in which the Commission, the representatives of the alleged victims and the state appear, as well as witnesses and declarants (Article 45 et seq. Rules of Procedure of the IACtHR). There are three parties to the proceedings at the Court: the Commission (Article 57 ACHR), the alleged victim and the state. During the hearing, the Tribunal will hear allegations and observations over preliminary exceptions, merits and reparations.

After the oral proceedings, final written allegations are presented (Article 56 Rules of Procedure of the IACtHR) and the court will deliberate in private and approve the judgment (Article 67 Rules of Procedure of the IACtHR).

The decision of the Court is final, although the parties can request an interpretation of the ruling if there is a disagreement as to its meaning or scope (Article 67 ACHR).

When the Tribunal finds that the state has violated a right guaranteed in the inter-American human rights treaties, the Court orders reparations, both patrimonial and extra-patrimonial, for a restitutio in integrum. The Court will monitor the compliance with the judgments and other decisions at the Court through the submission of reports by the state. The Court can even convene hearings to monitor state compliance (Article 65 ACHR, Article 69 Rules of Procedure of the IACtHR).

Finally, the Court can also issue advisory opinions regarding the interpretation of the ACHR or of other treaties concerning the protection of human rights in the American states (Article 64 ACHR, Article 73 Rules of Procedure of the IACtHR).

The IACtHR faces many challenges and criticisms, such as the enforceability of its rulings, financial and operational constraints, and the non-universality of its instruments. Member states have entirely failed to implement parts of the Court’s rulings in 30% of the cases (statistics from prior to 2008) and compliance with the Court’s rulings through the modification of domestic legislation has been achieved only in 20% of cases (see Inter-American Human Rights Network).[3] Funding from OAS member states is wholly insufficient, leading to mass layoffs at the Commission.[4] A total of 9 out of 34 inter-American states have not ratified the convention—among those are the United States and Canada—and two others have denounced their ratification. Finally, the range of human rights covered are not just “traditional” human rights, designed to address violations such as those perpetrated by military dictatorships, but also include rights touching on issues dealing with indigenous, LGBTI and abortion, which often raises opposition from state and religious interest groups, further placing barriers and making obstacles for the functioning of this important human rights institution.

I hope that, in not too technical of terms, this has answered how the Inter-American system of human rights works and how the interns fit into the bigger picture. On a final note, however, I would like to say that the most valuable part of my experience, has been the variety of people, places and perspectives that I have encountered at the Court—the personal side of my experience. The friends I have made have led to enriching conversations on Latin American (and U.S.) politics and human rights issues. There is a wide range of countries (both Latin American and European) represented by the interns and visiting professionals at the Court, which has created an inspiring and convivial intellectual environment. On the weekends, Costa Rica offers a diverse selection of beaches and volcanoes to discover outside of San José, out of which I have most admired visiting the northwestern province of Guanacaste—the driest province in Costa Rica, known for its surf beaches and guanacaste trees, notorious for their elephant-ear shaped seedpods.

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Playa Brasilito, Guanacaste.


[1] Informe annual 2014 y 2015, Organización de los Estados Americanos, <http://www.oas.org/es/cidh/informes/anuales.asp>.

[2] Ibid, at 24.

[3] Inter-American Human Rights Network, Challenges and Criticisms, citing González-Salzberg, D. A. (2010), ‘The Effectiveness of the Inter-American Human Rights System: A Study of the American States’ Compliance with the Judgments of the Inter-American Court of Human Rights’, International Law: Revista Colombiana de Derecho Internacional vol. 16, pp. 115-142.

[4] “Severe Financial Crisis of the IACHR Leads to Suspension of Hearings and Imminent Layoff of Nearly Half its Staff”, OAS Press Release, May 23, 2016.

The Economic Migrant in International Law

2016 Baya Yantren LaetitiaBy Laetitia Baya Yantren

“This blog post is about all you strangers, future classmates that I as of yet have not met.” It’s also about myself— this is a blog after all, the genre of self-confession and individualism (consumption). Early bloggers called themselves “escribitionists”.

There would have been many other ways to begin this post, some with more established human rights records than others. A colonial crowd-pleaser: “Kolkata is a city that bridges modernity and tradition…” Or, again, à la Camus: “The monsoon rain has not yet come, leaving Kolkata under the humidity and heat of deceitful clouds.”

If we’re looking for something less “NGO” and more “EU Commission”, there’s always: “Migration is one of the 21st century’s most pressing challenges.” To push the managerial to its limit, why not statistics? “Today around 214 million people, or approximately 3 percent of the world’s population, live outside their country of birth.”

Instead I start with us. The blog may be a fitting form for us, human rights interns scattered about the world by McGill. After all, we are expected to speak about things other than work, to foreground something “experiential” about our time spent “living” (working and “not”), but there is something unsettling about the word “experience” as descriptive of “work plus+”. Who can have such experiences? How are they remunerated, and on which market are they sellable?

We are in different parts of the globe, economic migrants in our own right, accumulating “experiences” that will enhance our social capital. Scholar Thomas Nail has argued that “today, most people fall somewhere on this migratory spectrum between the two poles of ‘inconvenience’ and ‘incapacitation’. But what all migrants on this spectrum share, at some point, is the experience that their movement results in a certain degree of expulsion from their territorial, political, juridical, or economic status…. Both the ‘tourist’ (the traveling academic, business professional or vacationer) and the ‘vagabond’ (migrant worker or refugee), as Bauman calls them, are ‘bound to move’ by the same social conditions but result in different kinds and degrees of expulsion from the social order.” What do you think about this?

 

WHAT IS AN ECONOMIC MIGRANT?

The world is abuzz with talk of “economic migrants”, “swarms” of which have landed on  the shores of capital-rich countries to usurp labour and contaminate the culture of European nations. In response, European states—with human rights pedigrees to defend and weak remnants of a universalizing Left electorate—have proceeded to the triage of this undifferentiated mass. Others have Brexited.

But what are economic migrants? The OIM defines “economic migrant” as “A person  leaving his/her habitual place of residence to settle outside his/her country of origin in order to improve his/her quality of life.” Based on this definition, here are “5 of my favourite economic migrants”:

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1. Gérard Depardieu registered as Russian resident amid tax row with France;

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2. Apple HQ in Ireland;

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3. Your grandmother in Florida;

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4. Investment bankers in London;

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5. Maltese Individual Investors.

Not to mention the major migrant that is our capital— those dollars that could have been somewhat mine and somewhat yours, but are currently on vacation in Panama, the Bahamas or other sunny destinations.

Of course, it is not these five that David Cameron had in mind as part of the “swarms of people coming across the Mediterranean”. Rather biblically, the metaphors of migration elicit clouds of dangerous insects, reference invading armies or warn of floods and inundations.

But let’s not be fooled into thinking that the problem is simply one of terminological differentiation based on stereotypes and “discrimination”— some (poor, non-Western, uneducated) people are immigrants, others (rich, usually Western, educated) are expats or “in exile”. Rather, let’s say that the bases of this differentiation—these meaningful stereotypes and the histories of this discrimination—are not “the product of ignorance” as Internet memes would have us say, urging us to “choose love, not hate”. These are products of knowledges so deep as to become invisible,  symptoms of a deeper machination from which human rights as a discourse emerges and to which it continues to contribute. I’ll get back to this idea later (maybe in my next blog post), but for now I would like to look at legal frameworks pertaining to migration and history.

 

INTERNATIONAL FRAMEWORKS FOR MIGRATION

Beyond national frameworks, there are a number of international legal frameworks that address migration. Let’s talk about two of them, the Refugee Convention of 1951 and the lesser-known International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families of 1990.

The Refugee Convention (1951) is one of the most well-known UN Conventions. According to the UNHCR, “Signed by 144 State parties, it defines the term ‘refugee’ and outlines the rights of the displaced, as well as the legal obligations of States to protect them. The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law.” Under article 1 of the Refugee Convention, a refugee is defined as [an individual with] “ well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is out-side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

The 1990 convention emerged from a 1974 study led by a Moroccan representative, Ms. Warzazi. The Convention remains one of the major human rights conventions with the least signatures and ratifications. The Convention, which guarantees basic rights for documented and undocumented migrants, is unsigned by all European countries who are unwilling to guarantee some of these rights. The context of the Convention’s emergence is the Cold War, with non-aligned nations largely constituting the Convention’s supporters. Importantly, Morocco and Mexico —nations on the borders of two of the most active crossings on the planet—were the two nations who pushed for Warzazi’s study and who followed the development of the Convention. Many Western European Countries saw the Convention as a “conspiratorial scheme” pushed through by the domination of the UNGA by Third World countries and designed to serve their interests. Today, the Convention’s signatories are migrant-sending states who may be attempting to use international law to protect their citizens from other states—could this be seen as an important development in the traditional dynamics of international law?

 

ONE FINE DAY… THAT WAS ALL

Hannah Arendt had relevant things to say about everything, including economic migration. What she said (before the end of WW2) throws into stark contrast the current discourse on migration:

“In the first place, we don’t like to be called “refugees.” We ourselves call each other “newcomers” or “immigrants.” Our newspapers are papers for “Americans of German language”; and, as far as I know, there is not and never was any club founded by Hitler-persecuted people whose name indicated that its members were refugees.

A refugee used to be a person driven to seek refuge because of some act committed or some political opinion held…Now “refugees” are those of us who have been so unfortunate as to arrive in a new country without means and have to be helped by Refugee Committees. Before this war broke out we were even more sensitive about being called refugees. We did our best to prove to other people that we were just ordinary immigrants. We declared that we had departed of our own are will to countries of our choice, and we denied that our situation had anything to do with “so-called Jewish problems.” Yes, we were “immigrants” or “newcomers” who had left our country because, one fine day, it no longer suited us to stay, or for purely economic reasons. We wanted to rebuild our lives, that was all.” (Hannah Arendt, “We Refugees”, Together Elsewhere 1996.)

That was all, and that was enough. Afterall, in 1945, you had half the countries in Europe going elsewhere for “purely economic reasons” and many Europeans were chasing fortunes in North America, Africa and Asia. Back then, it seems, changing countries for economic reasons was a perfectly valid thing to do. In the time of global primitive accumulation, migration was accepted. When did we change our minds, why?

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The term economic migrant seems to emerge in the mid-1970s. The graph above  shows the emergence of the term “economic migrant” in the New York Times.

What did the world look like in 1975? What had changed?

 

 

 

Justice on the Go

Etienne F Lacombe

Étienne F. Lacombe

The administration of justice in Nunavut faces a discrete set of challenges, not the least of which is the territory’s vast expanse and geographically sparse population. In order to reach the majority of residents, the Nunavut Court of Justice must travel on circuit. Last week’s circuit in Pond Inlet serves as an example of how the delivery of legal services in the North often requires creativity and flexibility.

First, some background information:

The Nunavut Court of Justice usually sits in Iqaluit, where there is a permanent courthouse. On most weeks, however, it also sits in at least one other community. These sittings occur in school gymnasiums, community halls or other facilities. The frequency at which the Court visits each community varies from every six weeks to every six months, depending on the location’s needs. Each time, a host of staff and legal professionals travel with the Court, including a judge, a prosecutor, defence counsel, a clerk and a court reporter.

Pond Inlet 1

Friday

It’s 6 a.m. Defence counsel arrive at the Iqaluit Airport. Four hours later, the plane touches down on the dirt runway in Pond Inlet. Naptime is over. The lawyers climb down the steps of the aircraft, armed with a stack of files and a healthy dose of patience. This week will be a long one. Efforts to locate clients begin promptly as many of the accuseds do not have a phone. Staff contact the community radio station to advise that lawyers will be meeting all accused persons at the local hotel. Meanwhile, the court worker borrows a relative’s vehicle to locate some of the clients himself.

Saturday and Sunday

The weekend is dedicated to client meetings. Some have made an appointment, others arrive and wait their turn in the lobby. Most of them have never met the legal aid lawyer who will be representing them in a few days. Everyone is forced to share the space. The dining hall becomes a meeting area, as do a few of the hotel rooms. In each meeting, the lawyer reviews the allegations with his or her client and explains the difference between pleading guilty and not guilty. Discussions sometimes come to a standstill as the interpreter must run from one room to the next. At some point during the weekend, the Crown prosecutors arrive with their witness coordinator, and begin conducting meetings of their own. The judge also arrives and meets informally with the lawyers.

Monday

Defence counsel continue their meetings with clients. Some are showing up for the first time, others have returned after reflecting on how they will plead. Later in the day, the defence lawyers review each file with the Crown to consolidate their positions and come to joint resolutions where possible. Everyone then attempts to get a good night’s sleep, despite the 24-hour sunlight. The show starts tomorrow.

Tuesday

Court begins at 9:30 a.m. in the community hall. Dozens of people are in attendance, including accused persons, witnesses and family members. The court clerk works through the docket in a roll call fashion. Bench warrants will be issued for absentees in order to secure their attendance. Crown and defence counsel agree to begin with as many simple files as possible. The day therefore consists mostly of guilty pleas. After sentencing submissions, the elder sitting beside the judge is afforded an opportunity to speak to every accused. He offers guidance, and the judge often quotes from his advice in passing the sentence.

Wednesday

The in-custody accuseds arrive in Pond Inlet. They have been flown in from the Iqaluit jails to be tried in their community. This week, they will be housed in the RCMP detachment cells. Guilty pleas continue. Trials begin in the afternoon. It becomes obvious how dated some of the charges are, having been delayed due to the infrequency of circuits, the availability of witnesses, and a variety of other reasons.

Thursday

The trials continue, interspersed with guilty pleas from files that have been resolved overnight. Systemic pressures become more apparent as the lawyers and the judge speak with increasing candour. Some files must be prioritized while other may not be heard this circuit. By the end of the day, the Court has heard most of the cases. Counsel, the judge and community members dismantle the makeshift courtroom of folding chairs, tables, laptops and mobile internet terminals.

Friday

Defence counsel, prosecutors, court staff, the judge, an RCMP officer and the prisoners board a flight back to Iqaluit. It’s naptime again.

Pond Inlet 2

This play-by-play of a court circuit illustrates some of the unique circumstances under which the delivery of legal services operates in Nunavut. While circuit courts offer a number of advantages in the North, namely allowing the accused to be tried in his or her community and facilitating access to witnesses, they also pose a number of issues. The quality of representation may suffer under heavy dockets or strained schedules, and the continuity of counsel from one sitting to the next cannot be assured. These are but a few of the challenges to practising law on the go.

Close to Home

2016 Cooke FionaBy Fiona Cooke

My first entry on this blog has turned out to be a lot more personal than I thought it would be. I didn’t expect to feel as emotionally engaged in my work as I did at certain points these past few months, researching at Avocats sans frontières Québec. Because I’m “only” in Québec City, not some exotic, faraway country, I secretly feared my experience would be somewhat less authentic, or carry less meaning – that I wouldn’t feel it.

However, I was starkly reminded with my second research assignment that Québec City is not so far away from big questions of human rights. The office is situated on Rue Saint Joseph Est, right in the middle of a neighbourhood that is undergoing significant gentrification. In the midst of places like Zara and Crudessence (an extremely delicious but ridiculously expensive raw vegan joint) are community kitchens and homeless shelters. People sleep on the benches lining the street on a backdrop of over-lit high fashion shops and overpriced coffee shops, where young people park themselves all day with their Macbooks.

The second research mandate I was given was to write about “Canada’s experience with transitional justice” for an upcoming forum that ASFC will hold in August on Transitional Justice. Canada’s experience is not typical – the “transition” is not referring to a regime change or exiting a time of conflict. However, its Truth and Reconciliation Commission, as well as the Indian Residential School Settlement Agreement, can be compared to similar settlements in approximately 40 other countries in the world.[1] Canada’s Commission was tasked with collecting the stories, experiences and truths of Aboriginal people all over the country who suffered through the Indian Residential System or its intergenerational effects.

The TRC is based on the principle that true reconciliation cannot come about in the absence of truth. In most transitional justice contexts, this means the right to know “the truth about the abuses they have suffered, including the identity of the perpetrators [and] the causes that gave rise to violations.”[2] In Canada, “truth” has meant more “truth-telling” by the survivors themselves – creating a record that collects their individual experiences so that the magnitude and severity of the violations can be accurately communicated. The TRC’s aim was to communicate to the Canadian public in general the truth of what happened to Aboriginal people in residential schools, and to promote an understanding of the intergenerational effects of this system. The idea is that this will be the first step in healing the relationship between Aboriginals and non-Aboriginals in Canada, along with an apology from the government individual payments as part of the Indian Residential School Survivor Settlement.

The Importance of Truth-Telling

Completing this mandate affected me in three very personal ways that I was not expecting. During the exact same two weeks during which I was working on this project, my own life felt like a microcosmic reflection of what I was reading about. Out of the blue, I received an apology for something that happened to me almost two decades ago, from the person who should have prevented it. It was a very sincere, genuine apology, that I believe came from a true place of regret in this person. However, despite this, I still didn’t feel like I could truly forgive or reconcile with him. While continuing my research at work, I realized why. One of the reasons was – he didn’t know the half of what I had gone through. How could he truly apologize when he doesn’t really know exactly what he’s apologizing for? I felt like, in some very small way, I understood the impulse that drove hundreds or thousands of Aboriginal people to tell their stories at the TRC events. The need to feel like suffering has been vindicated, recognized, completely acknowledged – it feels like an essential component of feeling like justice has been done. And I’m just not sure that the TRC had the exposure it needed – every single Canadian needs to read at least the Summary of the Final Report before society can truly transform in a way that will be conducive to righting the wrongs that have been perpetrated for so long.

Apologies

Another reason for my skepticism about prospects for reconciliation: a true apology is not just words – it is actions, it is changed behaviour in the long term. A true apology can span decades. The apology that I received was followed almost immediately by an excuse, and indications that by-stander behaviour wasn’t over. The apology that the Aboriginals of Canada received not only didn’t address the greater narrative of colonial assimilation, but was also simultaneous to the ongoing destruction of their traditional lands, ongoing funding discrimination, ongoing institutional racism – Matt James refers to it as a “politics of distraction” from the question of restitution of stolen lands.[3] One participant said, “I won’t forgive the government. There’s no way in hell. I’m going to court to protect the land. […] That’s why it’s a lot of bullshit with the government and the apology.”[4] This is why guarantees of non-repetition are fundamentally important in transitional justice contexts – societies cannot let go of their anger if the wrongful behaviour is ongoing, or likely to occur again. I felt/understood the truth of this principle in both theoretical and very personal ways throughout my research on the Canadian TRC.

First Steps

Finally – doing all this research, but especially reading the summary of the final report of the TRC, which is full of survivors’ stories and the history of the indian residential system, had a fundamental impact on my understanding of the current situation of Aboriginal peoples in Canada. I wouldn’t have considered myself ignorant before – I knew that the Indian Residential School existed (despite not having been taught about it at school), and I knew that Aboriginal communities had lower health outcomes than non-Aboriginals. I knew that poverty and discrimination abounded. One of my best friends is native, and I had heard of the struggles of her community. However, I don’t think I truly understood the connection between the history of Canada’s treatment of Aboriginal people and the current problems. Reading peoples’ personal stories helped me understand that everything feeds off each other. I experienced a fundamental, if almost imperceptible shift in my reactions to hearing about Aboriginal communities’ difficulties. Before, my reaction would have been one of sympathy and frustration about the current state of things. Now when I think about it, to those reactions is added a recognition of my implication in it – of my duty to try to understand the cause and effects, and to understand and respect the anger and resentment. These are legitimate feelings, on a societal and personal level, that cannot be done away with by a simple apology.

Take the TRC reading challenge –

http://trcreadingchallenge.com/


[1] Rosemary Nagy, “The Truth and Reconciliation Commission of Canada: Genesis and Design” (2014) 29:2 Canadian Journal of Law and Society 199 at 200.

[2] International Center for Transitional Justice, “Truth Seeking: Elements of Creating an Effective Truth Commission” (2013) at 3. Online at : https://www.ictj.org/sites/default/files/ICTJ-Book-Truth-Seeking-2013-English.pdf.

[3] Matt James, “A Carnival of Truth? Knowledge, Ignorance and the Canadian Truth and Reconciliation Commission” (2012) 6 The Int’l Journal of Transitional Justice 182 at 189.

[4] Anne-Marie Reynaud, “Dealing with Difficult Emotions: Anger at the Truth and Reconciliation Commission of Canada” (2014) 56:2 Anthropologica 369 at 375.

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