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Learning To Be A Good Lawyer

My time as a Legal Officer at Jesuit Refugee Service (JRS) has given me a glimpse of what it will take to be a good lawyer.  This role was similar in many ways to that of a practicing lawyer: I acted as my clients’ legal counsel, and I used my knowledge of the law, procedures and guidelines to help my clients navigate a legal system and to secure fair and correct outcomes. I was given an incredible amount of responsibility in this role and I learned a lot about essential skills that I will need to continue to work on as I move forward in my legal career. Here are three major lessons that I learned about what it takes to be a good lawyer.

1.  Be organized!

With well over 15 clients at any given time, while also juggling side projects, walk-in clients, daily emergency situations and a growing waiting list for legal services, one of the most important things I could be was organized.  Legal officers have to manage their own case load, and this means dozens of competing deadlines.  Missing these deadlines has serious repercussions on the wellbeing of my clients and so missing anything is simply not an option.  Clients look to you to be a stable and reliable resource for them in the middle of often chaotic situations.  Disorganization affects clients.  For example things like overbooking, rushing an interview, not being prepared and not following up all gives the impression that you don’t really know what you are doing and this can justifiably make a client wary of you and your services.  Also, it helps to prevent the panic of waking up in the middle of the night worried that you missed an important deadline or detail. I think that while all lawyers have to juggle competing priorities and responsibility, good lawyers make sure to do so as efficiently as possible.  There are many ways to accomplish this, but all require strong organizational skills and diligence.

2. Always be improving upon your knowledge and command of your area of law.

It has been very interesting for me to see the level of expertise that I will need to have to be a good lawyer.  The main purpose of my role at JRS was to help our asylum-seeking clients be recognized as refugees as per the 1951 Refugee Convention. I did this by providing advice and constructing legal arguments and submissions on my clients’ behalves. To do this well I needed to know everything I could about international and domestic refugee law, legal procedures and country of origin information to build each case. There is no way around this. When I was assigned a case but didn’t have experience with that type of persecution or a particular profile, I spent a lot of time preparing by doing research and reviewing leading cases in this area. Casework requires significant choices to be made and careful consideration of case details when choosing the direction of your argument.  A good lawyer will be able to quickly identify the major legal issues within a given context and the craft solutions best suited to this situation.

I was fortunate to work under the supervision of an excellent lawyer whose dedication and years of experience made him an invaluable resource on any refugee law related question that I had. He knew it all: He always delivered an instant response to any of my questions, including formulated arguments, reviews of key decisions and verbatim quotes of key passages.  While there is no substitute for experience, being prepared and knowledgeable is essential for being a competent and good lawyer. This experience allowed me to gain an appreciation for the level of mastery that I will need to be a good lawyer and I will always work towards this.

3.  Interpersonal skills are crucial.  Be forthright, truthful and transparent.

My clients were often extremely vulnerable and my job required that I gather extensive details from them about very traumatic experiences and their ongoing daily issues.  I found that strong interpersonal skills were essential for me to do this work well.  I had to listen closely to my clients, work to establish strong working relationships with each one, act as an educator on the laws affecting their lives and wellbeing, and provide them with emotional support.

I found that the key to doing all of these things well was to always be forthright and transparent with my clients. Being forthright is challenging in many cases because it forces you into very difficult conversations. In my role, these conversations included having to tell a client that I didn’t believe their story, that I haven’t worked on a certain case due to time and resource constraints, that I didn’t know how a mother would feed her children, or that some clients had a no chance of being recognized as a refugee at all.  However, being forthright, truthful and transparent during these conversations went a long way to helping my clients to trust that I was always providing them with my honest legal opinion and best work, and in doing so this helped many of my clients disclose sensitive yet essential information to support their cases. By far the most enjoyable part of my internship was developing strong working relationships with clients.  I really appreciated that as a lawyer clients trusted me with the intimate details of their life and with the outcome of their case, and in return I tried to always be transparent and forthright with them. Transparency requires that you explain to clients the ‘why’ of what you are doing during the various elements of your service.  This takes a lot of time.  But I found that it really helps clients to trust you and to be empowered in their legal process.  It also improves your ability to gather targeted information from your clients that you need for effective casework, while also allowing your clients a chance to learn about their case throughout the process of your working together.

 

 By McLean Ayearst

 

Drive Through a Legal Labyrinth

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st regis map

Learning about the geography of Akwesasne is essential to understanding the daily struggles of the Akwesasne Mohawk Community, and the jurisdictional conundrums that were at the heart of my research this summer.

I will take you through my daily drive to get to work and back, which begins to give you a sense of the complexities underlying the Akwesasne territory. I resided in the City of Cornwall, and was working at the Akwesasne Justice Department in Kanakaton (St Regis). Leaving from Ontario, the first stop is a bridge toll for the Three Nations Bridge, which crosses the St Lawrence River to Kawehnoke (Cornwall Island), connecting Canada to Akwesasne. The Island, as the locals call it, is the part of the reserve situated in Ontario. Getting off the bridge, it becomes clear that you’ve entered a different Nation. You soon see a Haudenosaunee (Iroquois) Confederacy flag, a tax-free gas station, road signalization and advertisement in the Mohawk language, a sign saying “You Are on Indian Land”, and another “Cocaine and crack will cost you more than money”. Within a few hundred meters, you come to a stop sign, which stands in front of an abandoned Canadian border-crossing checkpoint. The Cornwall Island port of entry was closed in 2009 as a result of protests resulting from the Canadian Government’s decision to arm border agents. The Akwesasronon (the people of Akwesasne) refused to have armed CBSA agents in a residential area.

 

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After you pass by the abandoned border station, you reach the foot of a bridge, which marks the Canada-US border. On your right you will see the Aluminum Corporation of America plant (Alcoa), which in 2013 negotiated a $20 million with the Mohawks for a more than 60 year legacy of polluting the St Lawrence River Watershed. These seriously inadequate funds are intended for the restoration of recreational fishing, fish and wildlife, and Mohawk traditions and languages. On the other side on the bridge, you soon come to the Massena US border checkpoint, situated on the US-NY state side of Akwesasne.

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A sign bearing the message “Welcome to the Empire State” greets you at the first traffic light, which leads you on to the prosaically named Road 37 that crosses the Raquette River taking you through “US side” of Akwesasne.  Here one views more tax-free gas stations, both of the operational and abandoned variety, an abandoned Casino, craft-stores, outlets for tax-free tobacco and alcohol, and several Tribal administrative buildings. After ten minutes, you turn left turn just before crossing the St Regis River. The smaller road that brings you to Kanakaton stretches through a residential area on the US side. Owing to a lack of zoning regulations the houses are aligned in an unconventional way on this part of the road, and properties are rather large. However, the landscape drastically changes once you arrive at Kanakaton, commonly referred to as “the Village”. Streets are smaller, narrower, properties are smaller and it is more densely populated.

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When you arrive at the Village on that small road, it is easy to not realize that you have crossed the Canadian border. Apart from a small seam in the road where the American paving crew stops and the Canadian one begins, and some metric signage, there are no landmarks suggesting that you have entered Quebec.  No border crossing checkpoint, no sign, so surveillance camera, etc. Yet, for non-Akwesasronon, missing the border can very costly. Although there is no checkpoint in St Regis, there is a border, and it means that since you have entered Canada, as a non-Indigenous person, you have to report at one of the US border checkpoints, be it Massena, Fort Covington, etc… when you leave the Village to go anywhere else in the US or on your way back to Canada. Furthermore, once you leave St Regis, you are not allowed to stop anywhere in the US before “reporting in”. If you fail to report in or stop somewhere on the way, the US border agency can impound your car and charge you $1000 to retrieve it on the first occasion, $2000 for the second, $3000 the third time, after which they will confiscate it permanently.

Returning to the City of Cornwall from the Akwesasne Justice Department, you must first stop at the Massena US border checkpoint.  You have to park the car, go inside the building, and show your passport. The first few weeks I was asked by the border agents whether I had stopped anywhere on US territory on my way back from St Regis, and whether I had bought any goods in Canada. After a month of stopping everyday they ceased to ask me any questions or look at my passport. They would say “Reporting in? You’re set.  Free to go.” You might, as I did, find this attitude upsetting, as Akwesasranon waiting behind you receive a very different treatment from border agents.

Once cleared, you drive back across the bridge to Cornwall Island, and have to make sure to not stop anywhere on the Island as you make your way to the Canadian border check-point. You must head straight to the Three Nation Bridge, cross the St Lawrence to Mainland Canada, pay a $3.25 bridge toll, then pass through the Canadian border checkpoint. It’s only at this point that you may backtrack to Cornwall Island if that is your final destination.

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Again, it is because Cornwall Island is technically Canada and there is no border crossing on the Island, you are not allowed to stop on your way, and must head straight to the Canadian border checkpoint. If you don’t follow these rules, this time you risk the Canadian officials confiscating your vehicle. However, and importantly, Canada is less flexible than the US, and applies this rule to Akwesasranon and non-Akwesasranon alike. This has serious implications for the residents of Cornwall Island, and of Akwesasne more generally. It means that whenever someone is going to Cornwall Island from other parts of Akwesasne, they must take the extra step to cross the Island without stopping, cross the toll bridge, get cleared by the border (they are often subjected to discriminatory treatment and other human rights violations, which has spawned several lawsuits), cross the toll bridge again, and across the bridge, before finally reaching their destinations on Cornwall Island.

I will leave it at that for now, and look forward to telling you more about my work at Akwesasne, and hearing about your experience on Friday. Happy Labour Weekend! Oh, and if you’re interested, Akwesasne is having one of its most anticipated events of the year next weekend, check it out at: http://www.akwesasnepowwow.com/. In July, I went to the  Kanhawake Pow Wow, and it’s worth the trip!

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Photos by Neal Rockwell

 

The Disconnect Between Universal Jurisdiction and Piracy

Kyle Best

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Hostis humani generis: “enemy of humankind.” The immense weight behind this Latin phrase is well known to those fascinated by either the modern or historical world of piracy. Historically, the status of these universal enemies was well known. According to the masses, pirates had availed themselves of the benefits of society, reduced themselves to a savage “state of nature”, and declared war on all humankind. And so, in this same Hobbesian spirit, humankind responded by categorically declaring war against pirates. Thus, when these enemies would bear down upon a coastal town with rapacious savagery, the town would not stand idle and witness their own demise, but instead rally their troops and defend their livelihood with equal measures of violence. Indeed, because the pirates had been declared enemies of humankind, the town would not only have the right to self-defense, but they were further given the right to punish captured pirates in a brutal manner fitting of this “state of nature.”[1] And so, as if torn from the pages of Leviathan, the law of nature governed the fight against hostis humani generis.

This classical account of piracy paints a picture reminiscent of the so-called “Golden Age” of piracy, one that may be thought of as irrelevant to maritime crime in its modern form. However, a new study by Dr. Matt Garrod suggests that such an antiquated approach to piracy persists in international law. Garrod’s study focuses on the principle of universal jurisdiction. Used for over 400 years to combat piracy, universal jurisdiction gives all countries criminal jurisdiction over certain crimes regardless of normally relevant considerations such as location or nationality. Universal jurisdiction rests on the assumption that there are certain crimes so heinous that they are against the values of all humankind, and because all humankind is affected, all states are given the right to prosecute the criminal and protect international community values. In his study, Garrod researched archival materials and considered the application of universal jurisdiction to the crime of piracy from a historical perspective. He found that lawmakers were not protecting international community values, but instead pursuing their own interests:

“[T]he original lawmakers were powerful sovereigns protecting their own interests, not least their sovereign right to freely navigate the high seas and develop colonial trade and settlements and ultimately grow their own empires uninhibited. They weren’t interested in protecting all mankind. Pirates were even sometimes described as ‘heinous’ because their activity was destructive of the colonial trade of sovereigns.”[2]

This study points towards a significant incongruity between the application of universal jurisdiction and its underlying rationale. However, can this criticism be applied to modern maritime crime? Garrod argues that it can, stating that there is no evidence to suggest that the fight against piracy in Somalia is a result of states attempting to protect international community values. This is a strong stance to take on the issue, and is likely to be challenged by organizations such as the UN, who describe the fight against piracy as a collective international responsibility.[3] Indeed, the applicability of universal jurisdiction to crimes like piracy and genocide has been a subject of debate before the UN General Assembly since 2009, and both sides are far from reaching an agreement on the matter. Regardless of one’s stance on this issue, Garrod’s research raises a legitimate question as to the underpinnings of universal jurisdiction, and continues to fuel the debate surrounding this 400-year-old law.


[1] Ellms, Charles. The Pirates Own Book (2004). Available online: http://www.gutenberg.org/files/12216/12216.txt

[2] Garrod, Matthew. http://www.port.ac.uk/uopnews/2014/08/05/laws-against-piracy-seriously-flawed/

[3] http://www.un.org/apps/news/story.asp?NewsID=45281#.U_YalEhEDEU

India, an Idea

No guidebook, no first-hand narratives, no newspaper reports, nothing really can prepare you for an experience in India. I say India but having spent the past four months wandering the streets of Kolkata, sipping tea in Darjeeling, seeing the dead float down the Ganges, drifting through temples scattered around the North, and sitting through traffic (lots of traffic), there really is no such thing called India. This so-called nation is as diverse as it is large as it is old. It is the cultures, the languages, the foods, the clothing, the religious beliefs, the superstitions. For me, India is, above all, an idea. This is a country that, in so many ways, really shouldn’t work. Yet it does.

There is, of course, the real risk that the Westerner, in his or her immersion in this land exoticizes, even fetishizes, India. I think that for every visitor to India who has “found” himself or herself, there is a visitor who leaves the country more confused, more unsettled, more restless. As I get set to leave this country, I find myself identifying with the latter. This is a place that has, all at once, proved to be as overwhelming as it is calm, as ugly as it is beautiful, as miserable as it is happy. In the middle of my archival research, I came upon the following editorial in The Statesman written by James Cameron on May 31, 1971. This is what he had to say about Calcutta and India more generally:

When I finally came to India it took about thirty seconds flat to put me in my place, and there I have remained. Every time I return to Calcutta I feel it must be surely impossible that it can continue much longer like this; yet it always does. An interval of a year makes the visual impact more painful, the squalor more squalid, the poverty more militant, the despair more desperate. There is no way of rationalizing Calcutta. It is Indian acceptance, which may be torpor; Indian resilience, which may be opportunism; Indian philosophy, which may be indifference; Indian ingenuity, the instinct for survival. I find Calcutta an intimidating and even infernal city, unredeemed, and probably doomed. In a month or so I shall probably be back, to eat my words, as I always do, and find, as one always finds, a flash of redemption in the company of a friend, and the remembrance, more humbling now than ever, that India has gone on for a very long time.

I have to admit that like Cameron, I too have eaten my words more than once. Calcutta is a city, as I pointed out in my first blog post, of extremes where the drama over justice, equality, and fairness envelops you like the sweltering heat. You can’t avoid it and it usually leaves you feeling powerless, vulnerable, and weak. You sense it when you read about the rape cases, or when you hear firsthand testimony about the unequal power dynamics within the court system, or when you study changes in the law that have re-written the rules to favour developers over the poor farmers. These experiences can leave you on the margins, forced to observe what I described as the “daily festival of human existence with all the good and bad that that existence entails.” But it doesn’t have to be that way. My experience at the CRG – listening, reading, writing, asking questions, debating – has highlighted the place and role of academic research in the framing, structuring, and influencing of this drama. Working at the CRG was certainly more than visiting archives, producing original research, and publishing a paper. It was an experience with and of ideas – ideas that extended far beyond the law and refugee rights. These were ideas encompassing topics as diverse as class and culture, economics and equality, bollywood and hollywood. Instead of describing these ideas, I’d like to invite you to join in the conversation. I conclude my last blog post with a mock syllabus (what some might call a summer reading list) that I’ve organized around some of the key themes that have sustained my thinking this summer. There are no papers, no finals, no quizzes. I look forward to carrying on this summer of ideas back in Montreal.

India 1971: Between the Camp and the City

Week 1: India at the (geopolitical) crossroads
(Book) India After Independence: 1947-2000 (2000) Bipan Chandra
(Book) The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide (2013) Gary J. Bass
(Films) The Apu Trilogy – Pather Panchali, Aparajuto, and Apur Sansar (1955, 1956, 1959) Directed by Satyajit Ray
(Novel) A Golden Age (2012) Tahmima Anam
(Novel) Such a Long Journey (1991) Rohinton Mistry

Week 2: Theorizing borders, boundaries, and spaces of difference
(Article) The Study of Boundaries in the Social Sciences (2002 – The Annual Review of Sociology) M Lamont, V Molnar
(Book) Borders, Histories, Existences: Gender and Beyond (2010) Paula Banerjee
(Book) Cultivating Differences: Symbolic Boundaries and the Making of Inequality (1992) M Lamont, M Fournier
(Book) Postcolonial Theory: Contexts, Practices, Politics (1997) B.J. Moore-Gilbert
(Book) Understanding Postcolonialism (2012) Jane Hiddleston

Week 3: Building the urban spaces of India
(Book) Capital: A Portrait of Twenty-First Century Delhi (2014) Rana Dasgupta
(Book) City of Djinns (1993) William Dalrymple
(Book) Maximum City (2004) Suketu Mehta
(Book) Violence in Urban India: Identity Politics, ‘Mumbai’, and the Postcolonial City (2005) Thomas Blom Hansen
(Film) Slumdog Millionaire (2008) Directed by Danny Boyle
(Press) The Slumdog Millionaire Architect (June 19, 2014) Daniel Brook, New York Times Magazine [Link: http://www.nytimes.com/2014/06/22/magazine/the-slumdog-millionaire-architect.html?_r=]
(Press) Mumbai Land Grab (October 24, 2012) Faiza Ahmed Khan [Link: http://www.aljazeera.com/programmes/activate/2012/10/20121014113746742151.html]

Week 4: Modernity and the Urban
(Book) Calcutta Requiem: Gender and the Politics of Poverty (2007) Ananya Roy
(Book) Cultures of Servitude: Modernity, Domesticity, and Class in India (2009) Raka Ray
(Book) Places on the Margin (1991) Rob Shields
(Book) The Global City (1991) Saskia Sassen
(Book) The Urban Sociology Reader (2012) J Lin, C Mele
(Novel) Behind the Beautiful Forevers: Life, Death, and Hope in a Mumbai Undercity (2012) Katherine Boo
(Film) Mahanagar/The Big City (1963) Directed by Satyajit Ray

Week 5: Violent streets, Violent cities
(Article) Urban Violence and Insecurity: An Introductory Roadmap (October 2004 – Environment and Urbanization Volume 16 Number 2) Caroline Moser
(Book) Calcutta: Two Years in the City (2013) Amit Chaudhuri
(Book) Cities and Citizenship (1999) James Holston
(Book) The Naxalite Movement in India (1995) Prakash Singh
(Book) Urban Outcasts: A Comparative Sociology of Advanced Marginality (2013) Loic Wacquant
(Film) Calcutta Trilogy – Pratidwandi (The Adversary), Seemabaddha (Company Limited), and Jana Aranya (The Middleman) (1970, 1971, 1976) Directed by Satyajit Ray
(Novel) The White Tiger (2008) Aravind Adiga

Week 6: Managing displacement
(Article) Conceptualizing Forced Migration (2003 – Refugee Studies Centre) David Turton
(Book) Managing Displacement: Refugees and the Politics of Humanitarianism (2000) Jennifer Hyndman
(Book) Refugees and the State: Practices of Asylum and Care in India, 1947-2000 (2003) Ranabir Samaddar
(Book) Rights in Exile: Janus-Faced Humanitarianism (2005) Barbara Harrell-Bond
(Book) The UNHCR and World Politics: A Perilous Path (2001) G Loescher, DR Baldwin, H Rothstein

Week 7: (International) law and (international) institutions
(Article) The Geopolitics of Refugee Studies: A View from the South (1998 – Journal of Refugee Studies) BS Chimni
(Article) International Refugee Protection (1986 – Human Rights Quarterly) David Kennedy
(Document) 1948 Declaration of Human Rights [Link: http://www.un.org/en/documents/udhr/]
(Document) 1951 Convention and 1967 Protocol Relating to the Status of Refugees [Link: http://www.unhcr.org/3b66c2aa10.html]
(Book) From Resettlement to Involuntary Repatriation: Towards a Critical History of Durable Solutions to Refugee Problems (1999) BS Chimni
(Book) Governing Refugees: Justice, Order and Legal Pluralism (2014) Kirsten McConnachie
(Book) The Refugee in International Law (1996) GS Goodwin-Gill, J McAdam

Week 8: War as humanitarian intervention?
(Article) A Few Words on Mill, Walzer, and Nonintervention (2010 – Ethics and International Affairs) Michael W. Doyle
(Article) After Bangladesh: The Law of Humanitarian Intervention by Military Force (1973 – American Journal of International Law) Thomas M. Franck and Nigel S. Rodley
(Article) Bad Neighbors, Bad Neighborhoods: An Inquiry Into the Causes of Refugee Flows (1996 – International Security) Myron Weiner
(Article) On Humanitarianism: Is Helping Others Charity, or Duty, or Both? (2011 – Foreign Affairs) Michael Walzer
(Article) The Externalities of Civil Strife: Refugees as a Source of International Conflict (2008 – American Journal of Political Science) Idean Salehyan
(Book) Pakistan: Failure in National Integration (1995) Rounaq Jahan

Week 9: Repatriation, Rehabilitation, and Reconstruction
(Article) Dilemmas of Diaspora: Partition, Refugees, and the Politics of “Home” (2006 – Refuge) Pablo Bose
(Article) Refugees in Diaspora From Durable Solutions to Transnational Relations (2006 – Refuge) N Van Hear
(Article) Refugees, Return and Reconstruction of ‘Post-conflict’ Societies: A Critical Perspective (2002 – International Peacekeeping) BS Chimni
(Book) UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis (1997) Marjoleine Zieck
(Book) The End of the Refugee Cycle? Refugee Repatriation and Reconstruction (1999) Richard Black, Khalid Koser

Week 10: Conclusion – “…the proper use of verbs of movement”
(Novel) The Shadow Lines (1988) Amitav Ghosh

Legal developments regarding Canadian mining

by Matthew Millman-Pilon

Anecdotally, the Canadian flag is commonly found sewn on to the backpacks of our international travelers. The conspicuous yet modest display of our nationality used to make perfect sense, given our reputation as holders of progressive values and friendly demeanors. However, while I value genuine patriotic sentiment, I would caution that, from a strategic point of view, this approach may backfire in certain parts of the world today.

The inertia in our approach to environmental stewardship is certainly a general factor behind the decline of our reputation, and this post will focus on a particularly aggressive aspect of this neglect. Canadian mining companies are dominant players on the international mining scene, and in some cases may have contributed to human rights violations without ever having been held liable. The point of this post is to highlight recent and ongoing legal developments pertaining to these issues.

While I am currently working for One Earth Future on a report about human rights concerns surrounding state-owned oil companies from emerging economic powers such as China, I learned that Canadian enterprises are also seriously implicated in these issues. Approximately 75% of the world’s mining companies are Canadian in the sense that they are based here and listed on our stock exchanges, such as the TSX.

A leaked report commissioned by the Prospectors and Developers Association of Canada found that out of 171 companies identified in incidents involving extractive companies in the decade leading up to 2009, 34% involved Canadian companies. Incidents included cases of community conflict, environmental degradation, and unethical behaviour. It should be noted that methodological issues with the report have been raised, and that the numbers correspond with Canada’s position in global mining. The scope and severity of Canada’s contributions to these violations may be hard to precisely assess, but at the very least and in careful language, I think one could say that there is a problem that needs fixing.

Of course, mining operations within Canada are certainly contentious, particularly with regard to their impact on the environment and ignorance and neglect of aboriginal rights, and I look forward to learning about our domestic situation in this fall’s mining law seminar course. But when it comes to mining operations abroad, the situation is absolutely void of Canadian regulation.

Instead of regulation, there are voluntary principles and corporate social responsibility practices. In 2010, private member’s Bill C-300 was narrowly defeated in the House of Commons by a final vote of 140 to 134. The bill would have mandated DFAIT to set corporate accountability standards for Canadian oil and mining operations abroad. More importantly, it would have established a process whereby foreigners impacted by the operations could lodge complaints, which would then be investigated. If the investigation confirmed corporate non-compliance with the standards, then public financial support, such as from Export Development Canada and the Canada Pension Plan, could have been withdrawn as a consequence.

The extractive industry was vigorous in its opposition to the bill. For example, in its lobbying effort, the Prospectors and Developers Association of Canada stated that the proposed measures were unprecedented and would have rendered Canadian companies uncompetitive. Interestingly, it advocated waiting for specific recommendations to be made by John Ruggie, who at that time was leading the incorporation of the UN’s Guiding Principles on Business and Human Rights into the OECD’s Guidelines for Multinational Enterprises. The very same month that the vote took place, Ruggie actually stated that “the option of denial of public advantages must be kept on the table”.

In opposing the bill, former Minister of Natural Resources Lisa Raitt argued “The complaints process itself in the bill is irresponsible because it would offer no protection for responsible Canadian companies that are faced with false allegations.” This concern seemed to echo that of the Association of Mineral Exploration British Columbia, which worried that “Although section 4(7) of C-300 allows the Ministers to dismiss a complaint determined to be “frivolous or vexatious,” they must also provide reasons for this determination and publish these reasons in the Canada Gazette. This requirement will make it almost impossible to dismiss a complaint, out-of-hand, without some sort of an examination”. Personally, I do not consider out-of-hand dismissals as an effective method for change, and I consider the underlined portion to be desirable.

The vote was close. The issue is clearly divisive. I don’t agree with the Mining Injustice Solidarity Network that CSR and voluntary principles are “meaningless industry jargon”, but I certainly believe they should be supplemented by “hard laws” to deal with serious violations.

Since C-300 was shot down, human rights violations surrounding resource extraction have remained global impediments to peace and sustainable development. For example, Hudbay Minerals, a Canadian mining company founded in 1927, is facing three lawsuits regarding alleged murders and rapes committed in 2009 by security personnel belonging to one of its subsidiaries in Guatemala. The victims were Mayan Q’eqchi’ opposing mining operations or occupying contested territory (after these incidents, Guatemala’s highest court ruled that the Q’eqchi’ had legal rights to the contested lands).

Hudbay’s defense alleged that there was no cause of action. First, it argued that the subsidiary operating in Guatemala was a distinct legal entity and that the criteria for piercing the corporate veil were not met. It also argued that there was insufficient foreseeability and proximity to establish a duty of care between Hudbay HQ and the Q’eqchi’, and that holding them responsible would be akin to holding them vicariously liable for the actions of their subsidiary. Of note, Hudbay’s defense also argued that policy considerations negated the recognition of a novel duty of care, and listed Bill C-300’s defeat as evidence of that policy.

In June 2013, the Superior Court of Ontario dismissed Hudbay’s motion to strike, ruling that it was possible for the plaintiffs to prove that the subsidiary was acting as an authorized agent of Hudbay and that the elements of a novel duty of care could be demonstrated. NGO’s have interpreted this to mean that a “Canadian company could be held legally responsible for crimes committed in Guatemala”. I would put emphasis on the “could”.

On the legislative side of things, in the U.S., the Dodd-Frank Wall Street Reform Act mandated the Securities and Exchange Commission (SEC) to issue a rule that would require SEC-listed extractive companies to issue an annual report disclosing any payments made to foreign governments, including the type and amount of payment for each individual project. The main idea is that by making the exchanges between extractive companies and foreign governments more transparent, citizens in resource-rich countries will be able to hold their governments more accountable for their use of the revenues, decreasing corruption and increasing benefits to the population and affected communities.

The SEC issued a strong rule in 2012, requiring that the disclosures be public, disaggregated, and free from exemptions. The American Petroleum Institute successfully challenged the SEC’s rule, arguing that full public disclosure would render extractives companies uncompetitive and would violate contracts with countries that prohibit public disclosure. The U.S. District Court remanded the rule to the SEC to be rewritten, ruling that the SEC misread Dodd-Frank’s mandate regarding public disclosure and that its refusal to recognize exemptions was “arbitrary and capricious”. The SEC plans to release its second attempt at a rule by March 2015.

While the U.S. efforts have stalled, they have spurred similar endeavors in the EU, Norway, and Canada. In June 2013, Stephen Harper announced that Canada would adopt transparency rules requiring disclosure of payments by Canadian extractive companies to foreign and domestic governments. In March, Minister of Natural Resources Joe Oliver asked for provinces to adopt the measures through their own securities regulators. Otherwise, the plan is for federal legislation to be enacted by April 2015.

Considering that similar legislation will be implemented in Europe and the States, it is unlikely that these measures will be successfully attacked as anti-competitive. Hopefully, legislators won’t be deterred by the petroleum lobby’s challenge of Dodd-Frank and will draft strong laws requiring project-level and public payment disclosures without exceptions, as recommended by the Resource Revenue Transparency Working Group.

Although revenue transparency by itself is far from sufficient to tackle the resource curse, it is a laudable first step, and hopefully one that we can take without faltering. Eventually, however, if Canada truly seeks a reputation as an international leader in promoting human rights, I believe a closer examination of our extractive industry is called for, along with mechanisms to hold Canadian corporations accountable for any possible contributions to human rights violations.

La antigua panaderia, la Sele et Ban Ki-Moon

Être stagiaire à la Cour interaméricaine des droits de l’homme, ça implique travailler des heures incalculables à décortiquer et analyser les pires cas de violations des droits de la personne en Amérique latine[1]. Mais ça implique également travailler sur des dossiers confidentiels, il m’est donc difficile de commenter mon travail quotidien à la Cour. Voilà pourquoi je vais vous parler pêle-mêle aujourd’hui de trois sujets, de la bizarrerie quotidienne de San José à certains évènements marquants qui ont généré bien des réflexions parmi les stagiaires de la Cour.

200 metros sur, 100 este de la antigua panadería

San José, Costa Rica, c’est une ville sans adresse, sans nom de rue et sans numéro d’édifice. Je crois bien c’est la seule capitale d’Amérique latine ainsi. Le stagiaire s’en rend compte dès le premier jour, où trois lignes entières du formulaire d’identification sont dédiées à « expliquer » son adresse. À San José, on se retrouve (ou plutôt, seulement les taxis s’y retrouvent!), avec une adresse comme celle-ci : 200 metros sur y 100 metros este de la antigua panaderia de San Pedro (l’ancienne boulangerie). Il y a plusieurs éléments à décrypter dans cet énoncé. D’abord, est-ce qu’on doit vraiment évaluer la distance parcourue en mètres? Heureusement non, bizarrement, un coin de rue équivaut à 100 mètres, peu importe sa réelle longueur! Il faut aussi constamment savoir où est le nord, sud, est et ouest pour s’y retrouver. Mais le pire selon mon collègue tico (lire ici : costa ricain), c’est l’incompréhension intergénérationnelle qui résulte de ce système géographique. Parfois, le point de repère principal n’existe plus, comme c’est le cas de l’ancienne boulangerie. Les personnes âgées et les chauffeurs de taxi vont savoir où la trouver, mais les jeunes et les voyageurs de passage, aucune chance. Donc attention, si vous passez par San José, oubliez votre GPS, amenez votre boussole!

La Sele

Vivre la Coupe du Monde 2014 au Costa Rica a généré en moi des sentiments bien contradictoires. La Sele tica (sélection de soccer costaricaine) a atteint pour la première fois dans son histoire les quarts de finale, devenant la « surprise » du Mondial. Des milliers de personnes ont déferlé à chaque victoire à la « Fuente de la Hispanidad » à 500 mètres de chez moi (cinq coins de rue!), le point de ralliement des festivités, qui est pourtant un rond-point d’autoroute. Ma première entrée dans la salle d’audience de la Cour interaméricaine, une belle salle solennelle avec tous les drapeaux des pays membres de l’Organisation des États Américains, a justement eu lieu pour regarder l’un de ces matchs avec tous les stagiaires et avocats de la Cour, tous pays confondus. match cour

J’ai suivi le match où le Costa Rica a perdu à un cheveu en pénalités contre la Hollande dans un petit village de la côte caraïbes et je n’oublierai pas de sitôt la vieille dame afro-descendante derrière moi qui pleurait en se lamentant bien fort : « hijos mios, se merecian la victoria, pero les amamos, les perdonamos… ». Même si on n’aime pas nécessairement regarder le soccer, comme c’est mon cas, impossible de ne pas se laisser emporter par cet enthousiasme et ce patriotisme. Justement, à bien y réfléchir, là est mon inconfort.

Mentionner les milliers d’expropriations et d’expulsions pour les constructions des stades dans 12 villes brésiliennes, les dépenses exorbitantes dans un pays où les inégalités sont si fortes, les opérations controversées de « pacification » dans les favelas ou le mouvement de boycott du Mondial m’a attiré au mieux un regard d’indifférence, au pire une réaction outragée. J’étais aussi surprise de constater que peu de stagiaires et d’avocats de la Cour ont mentionné ces enjeux durant les maintes rencontres sportives. Les discussions de couloir et de cafétéria portaient presque seulement sur les résultats des diverses Sele d’Amérique latine et la fierté d’être colombien, mexicain ou tico. Nuancer les bienfaits du fûtbol et du Mundial au Costa Rica, c’est pratiquement sentir qu’on est contre l’intérêt patriotique du pays. Je ne peux pas m’empêcher de penser que si autant d’énergie, de ressources et de solidarité étaient dédiées au changement social, les résultats seraient incalculables.

Ban Ki-Moon à la Cour interaméricaine

selfie bon banki
(Selfie des stagiaires avec Ban Ki-Moon et le président du Costa Rica)
Autre moment historique : la première visite du Secrétaire Générale des Nations Unies à la Cour interaméricaine le 30 juillet 2014. Alors que la plupart des stagiaires tentaient d’intercepter Ban Ki-moon pour prendre un selfie avec lui (ils ont d’ailleurs réussi, avec les Présidents du Costa Rica et de la Cour en prime), une manifestation de dizaines de personnes s’organisaient devant la Cour. Tout un contraste! Mentionnons que la plupart des stagiaires de la Cour proviennent des universités privées d’Amérique latine ou font partie de la classe sociale favorisée de ces pays et ne sont généralement pas très portés sur la manifestation[2]. Les manifestants tentaient d’attirer l’attention de Ban Ki-Moon et des médias sur deux enjeux de grande importance: les titres autochtones dans la région de Salitre et l’invasion de Gaza par Israël. Puisque le monde entier a les yeux rivés su Gaza, parlons de Salitre.
manif

(Manifestation devant la Cour interaméricaine)

La reconnaissance légale des territoires autochtones au Costa Rica est à des années-lumière du système de réserve prévu par la Loi sur les Indiens au Canada. Alors que « sa majesté détient des réserves à l’usage et au profit des bandes »[3] au Canada, la Ley indigena de 1977 au Costa Rica prévoit que les communautés autochtones ont la pleine propriété de leurs territoires, lesquels sont « inaliénables et imprescriptibles, non transférables et exclusifs aux communautés indigènes qui les habitent ».  8 groupes autochtones se partagent 23 réserves à travers le Costa Rica. Mon collègue colombien m’a un jour affirmé qu’en théorie, la Constitution colombienne est celle qui garantit le mieux les droits humains dans le monde, même si la réalité en est bien loin. La même équation semble s’appliquer aux droits territoriaux autochtones au Costa Rica.

reserves

(Peuples et territoires autochtones au Costa Rica)

Les dirigeants de la communauté bribri de Salitre estiment que 40% de leur territoire est occupé par des finqueros non autochtone, ce que la Ley indigena interdit. Certains ont occupé par la force ces terres, alors que d’autres les ont acheté, ce qui est également interdit par la Ley indigena. En 2008, les tribunaux ont réaffirmé l’illégalité et la nullité juridique des achats et transferts de territoires à des non autochtones. En juillet, de nombreuses familles autochtones ont érigé des campements sur ces terres occupées, mais certains ont été incendiés et une centaine de finqueros ont bloqué l’accès au territoire bribri dans la nuit du 5 juillet. La tension est redescendue depuis et la Vice-ministre a clarifié que les non autochtones devront quitter le territoire. La solution qui se profile à l’horizon? Le gouvernement offrira probablement des compensations aux finqueros afin qu’ils quittent définitivement le territoire.

champa-quemada-615x461

(Campement incendié à Salitre)

[1] Notons tout de même que fort malheureusement, de terribles cas de violations de droits de la personne n’arrivent jamais à la Cour, faute de ressources, de connaissances des victimes de leurs droits, de peur des représailles, de ratification par l’État concerné, etc.  Je dis ici Amérique Latine puisque ni le Canada ni les États-Unis n’ont ratifié la Convention Américaine relative aux Droits de l’Homme, qui ouvre la possibilité pour la Cour de recevoir des plaintes individuelles.

[2] Je fais ce constat avec tout l’amour et le respect que j’ai pour mes adorables collègues. De nombreux facteurs peuvent l’expliquer: le fait que les stages à la Cour ne sont jamais rémunérés, que beaucoup d’universités privées en Amérique Latine sont de fervents participants et gagnants des divers concours de plaidoirie en droit interaméricain, que la pratique juridique en droit international des droits de la personne n’est généralement pas une branche lucrative du droit, mais attire une forte aura de prestige, etc. Je tire ces hypothèses de mes conversations avec mes amis et collègues.

[3] Art.18 (1) de la Loi sur les Indiens, L.R.C. (1985) ch. 1-5.

Fin.

Matthias Heilke

My colleagues asked me to write a retrospective of my twelve weeks at CEHURD. Much as I am looking forward to cheese curds, CanLII, and public transit, it has been a spectacular summer. I came to Uganda hoping to learn about how law interacts with ground realities to produce good or bad outcomes. My experiences here taught me a great many things about working in law, and the issues surrounding ground realities were chief among them. The real lessons tend to be fairly specific, so this summary is slightly trite, but bear with me anyway.

Let’s start out really obvious: ground realities are shocking. I spent some time on a lawsuit against a hospital whose doctor took several hours to attend to a woman named Irene, even though she had a ruptured uterus. Irene ended her life begging for mercy while her husband watched helpless. Around a quarter of HIV-positive Ugandans do not receive public anti-retroviral treatment — yet HIV-positive mothers are sometimes forced by their families to breast-feed their children, giving them HIV in turn. I have read hundreds of pages of Ugandan health policy, and much of it is first-rate. But policy solves nothing without implementation, in which case it isn’t much comfort to Irene’s family.

People are varied and pragmatic, and Ugandans are as varied and pragmatic as anyone. At a trivial level, people’s response to a mzungu varied from cynical opportunism to kind hospitality — more of the latter, happily! Less trivially: many doctors in Uganda demand bribes from the patients, even when the patients’ conditions are life-threatening. However, there are also Ugandan doctors who travel long distances by motorcycle to deliver urgent care to patients who cannot reach the hospital. Others even pay for emergency treatments out of pocket when the patient is destitute. Health interventions tend to aim at the median of the target group — that isn’t a bad thing — but it is worth remembering that generalizations about a country of thirty million are, well, generalizations.

Gender relations and other inequalities have an enormous impact on access to health, especially as it relates to combatting HIV. Both women and men hate to get tested, and rarely tell sexual partners their HIV status — men because nobody will sleep with an HIV-positive person, and women both for that reason and because they are afraid their husbands will throw them out. Wives don’t always have a choice about whether to sleep with their husbands, which also transmits HIV. Health centres try to overcome the testing barrier by including HIV testing with regular services like antenatal care — but men see ANC as a women’s job, don’t like sitting in waiting rooms full of women, and don’t come. Then the health centres resort to discrimination to try to bring in the men. NGO’s, incidentally, make the problem worse — NGO’s usually present testing men as just another way to protect women and children, so men don’t perceive the health benefit to themselves. Poverty has comparable effects: the impoverished lack resources to protect themselves against exploitation, and yet cannot afford to be exploited. Reduce inequality, and the right to health improves.

However, the dominant issue I have seen everywhere this summer is limited capacities. I went on a field visit in June to meet with doctors. They complained of lacking surgical gloves, blades, and essential medicines. Boxes of pharmaceuticals reach health centres almost empty. Health centres never receive the beds they need. There are never any funds to repair equipment — if something breaks, it just rusts. Private health providers pop up everywhere to fill the gaps, but many people cannot afford to pay — so they die instead. Private clinics are often run by public doctors; doctors barely earn a subsistence wage, so they illicitly open private clinics and try to force patients to use their clinics instead of the health centres. Policies can ameliorate such problems: for instance, donors should always budget for training and repairs, and good lines of accountability keep corruption in check. That said, funding levels always limit services, and that in turn limits outcomes.

Limited capacities also affect the law. Good policymaking takes time and expertise, and time and expertise cost money. Uganda does not always end up with the laws, regulations, and programmes it deserves, simply because the funds are lacking to create innovative solutions. CSO’s are constrained, too — there are ideas and strategies that CEHURD would undoubtedly pursue much further if there were donors to support them. Just like doctors and patients, policymakers, lawyers and CSO’s have to make do with what they have.

However, there is reason to hope. At a grand level, Uganda’s health is improving: more people are getting vaccines, ARV’s, etc.; health facilities are slowly improving; people are living longer. At the ground level, the people I met, from elites to subsistence farmers, pay attention to health issues, are learning how to make the most of their situations, and are ready to hold the authorities accountable for upholding Ugandans’ right to health. Dear authorities, take note. People are unusually afraid of the future in Uganda — Milton Obote, Idi Amin, and Joseph Kony (among many others) have given people good reasons to think of the current peace as an aberration — but Uganda is getting wealthier, and its people increasingly want a hard look at how that wealth is spent. Health is improving, and expect it to improve a whole lot more.

Canada meets Colorado!

by Stacey Smydo

I was super excited when I found out that I would be working at the One Earth Future Foundation this summer, both because I knew it would be a fascinating place to work and because I had never spent any significant amount of time in the U.S. and was curious about what it would be like to live here. Throughout the last months of interacting with my co-workers and roommates, I’ve made some fascinating discoveries!

The Fourth of July (I kept getting in trouble for calling it “July 4th”!) showed off American culture at its finest! The Fourth of July is not a day but a week-long celebration which became apparent when one of my fellow interns went to a class at the gym a few days prior and was greeted with a passionate speech about America’s greatness with “I’m proud to be an American” playing in the background at the end of class. I had a similar experience when I went to a yoga class the morning of the Fourth and was asked to incorporate the American ideals of freedom and benevolence into my practice. Then the group of interns went tubing on Boulder Creek – never have I seen so many full-sized barbecues in a park in my life! Coloradans take their meat seriously (and here I had thought that everyone in Boulder was vegan….)! And apparently Colorado is pretty tame!

Colorado, and specifically Boulder, fits the stereotypes. Boulder is often called the fittest city in America, and I can definitely see why! Everyone runs marathons, or ultra-marathons for that matter, does triathlons, ironmans, rock-climbs, does yoga etc. It’s both terrible for my own ego and fantastic motivation! Also, everyone is always dressed like they’re on their way to do one of these activities.

Politics comes up quite frequently in conversations (I might have something to do with this…) So far, I’ve learned that it’s perfectly normal to have election signs on your lawn supporting your favourite candidate for the local coroner (apparently it’s out of respect for the U.S.’s British heritage) and to discount a candidate in an election because of his or her favourite sports team. Somewhat counterintuitively, marijuana was legalized in Colorado in January of this year, yet gay marriage is not. I asked around about this and found out that Colorado has both some of the most liberal and most conservative cities in the country. This results in some seemingly inconsistent laws.

In terms of local perspectives about Canada, we discuss healthcare a lot (of course), and I found out that Rob Ford has overtaken Justin Bieber as the most famous Canadian. Excellent. Similarly, talking about Canadian and American history yields some interesting discussions. For some reason or another, I started talking about the Loyalists and was immediately shot down with a “You mean the Tories??”. I’ll stop talking now.

On the work side of things, I’ve noticed a difference in how Canadian and American universities approach political science (my undergrad). I talked a little bit about how OEF is “relentlessly empirical” in my last post. American universities approach political science similarly, very quantitatively, while Canadian political science is more qualitative. Well, my first assignment required a decent knowledge of working with data sets and statistics … Luckily I used one of my electives in undergrad to take a statistics class!

Some fun tidbits:

  • BBQ’s here do not actually require a BBQ and can, in fact, involve take-out. However, as discussed above, when a BBQ is actually present, it’s a “go big or go home” attitude!
  • It’s impossible to split the bill at a restaurant. We went to Utah this past weekend and, for the very first time since we’ve been here, one restaurant was able to split the bill BUT it had to include the gratuity because it made “so much extra work”. Right.
  • In some parts of the U.S., they call toques “toboggans”.
  • Don’t try to tell me that the metric system doesn’t make sense or that Colorado has “the coldest winters ever”.
  • Apparently, I have the “most Canadian accent ever”. Why, thank you!

So there haven’t been many major adjustments and the few that we have come across are more entertaining than anything. Hiking (and driving) in miles seems to take forever, I still spell “Canadian”, and don’t even get me started on my hatred of dollar bills. But, overall I love Colorado!

2014-08-03 20.15.09

Human Rights Education, Hot Topics and Turkey Necks

The International Human Rights Training Program organized by Equitas for the past 35 years has been a site of participation, learning, teaching, laughter and dance. Participants from all around the world gather to learn from one another and explore methods of human rights education. Over the years, the program and its curriculum has evolved but maintained a strong focus on education and gender.

As a training program for human rights educators, Equitas does a fantastic job of creating a comprehensive manual and emphasising the participatory element of education. Its program starts with the individual and spirals outwards until it involves the greater international community. What interests me is the fine balance of choosing topics of discussion that will engage everyone without being too western centric in nature. How you chose what to teach in a program that brings together such a diversity of participants?

First, let’s consider the plenary session on aboriginal rights. This is the most Canadian focused presentation at the IHRTP and I think one of the most important plenaries because it offers an image of Canada as a country that continues to struggle with, and infringe, human rights. Participants were shocked to hear about the living conditions of some aboriginal communities in Canada and the plight of native women. I think even many Canadians would be shocked if they knew the situation of aboriginal people in Canada and that this reflects a purposeful blindness and silence in our education. What I wonder, however, is whether a Canadian centric plenary is appropriate in a program that brings together people from all over the world. Isn’t it privileging a particular country’s version of the issue?

Another thing that surprised me, as someone with a background in religious studies and gender studies, was that discussions about freedom of religion and LGBTI rights, while addressed, were additional evening sessions. Participants had to sign up for them. In North America, these topics are at the forefront of conversations about human rights. They remain extremely controversial around the world. We can’t ignore them but as one participant said, “maybe there are other issues that are more at the forefront of human rights violations in my country”. While this may be the case, more than 2/3 of participants attended the LGBTI session. The freedom of religion session, while smaller, brought together people who engaged directly with this issue and people who felt religion affects their work and wanted to talk about ways in which to address this underlying issue. These are issues people want to talk about. Are they truly so divisive that integrating them in the actual curriculum would be exclusionary? If you cant talk about it here, where can you?

I didn’t write this entry to come up with answers. There are pros and cons to whatever way you chose to implement “hot-topics” in a training conference about human rights. I think that my own engagement acts as a great example of how our own cultural perspective shapes our study of human rights. What is most important is to be reflective and aware of where these opinions and beliefs come from.

To end, I’d like to retell a small story I heard during my first week at Equitas. While the impact might be lost in the retelling, it was a great way to start me thinking about cultural relativism and the importance of self-reflection.

*

There’s a young girl who asks her mother – Mama, why do we cut off the turkey’s neck at Thanksgiving? Is it important?

Her mother answers – I don’t know, we’ve always done it.

The young girl goes to her grandmother and asks her the same question. The grandmother’s answer is the same – I don’t know, we’ve always done it.

As the little girl asked more and more people, she keep getting the same answer. She was sure there must be a significant reason since it was something they had always done.

Finally, the young girl ask her great-great-aunt. Her aunt looked at her and said – It’s simple, the bird doesn’t fit in the oven if you don’t chop off the neck.

*

 

 

HIV and Sex – Not a Risky Business

IMG_3251[1]Four girls in downtown Toronto, a little bit of gin, and a conversation about one-night stands. It didn’t take too much time before we argued the proper etiquette to adopt before engaging in some gymnastics under the sheets with a total stranger. Each one of us had a different idea of what was appropriate to ask, what we should expect from our partner… and how these opinions would be completely different if the other person was actually HIV-positive. One of us said, quite categorically, that she would never sleep with someone who was HIV-positive, even if he’d wear a condom. ‘’You do know that there’s no risk of transmission when a condom is used, right?’’, ‘’I don’t care’’.

This remark made me cringe. As an intern at the Canadian HIV/AIDS Legal Network, I learned all about the myths surrounding HIV transmission and how these misconceptions negatively affect the lives of people living with HIV. Yet, I couldn’t blame her for saying that; I’m not sure my opinion three months ago would have been much more different from hers. It is scary to realize that we were four educated girls, but we had such a poor understanding of how HIV may be transmitted. And I wonder whether the law is not in fact perpetuating (if not strengthening) this misinformation and therefore this stigma and discrimination around HIV.

Indeed, the Supreme Court of Canada’s rulings on HIV non-disclosure fail to reflect actual scientific knowledge on the matter. Under Canadian law, HIV-positive individuals may be charged and convicted of aggravated sexual assault if they do not disclose their status to their sexual partner unless they use a condom and have a low viral load. This is in contradiction with scientific and medical evidence which establishes that the possibility of transmission is negligible, or even nil, when only one of these requirements is satisfied. With such a legal interpretation, people living with HIV end up being labeled as criminals even when their actions pose no realistic possibility of transmission.

So I wonder what makes us think there’s a risk. Science doesn’t seem to have much influence on popular beliefs. Every time I mention the current state of HIV-related science, people tell me that it doesn’t matter, they wouldn’t want to take the chance – ‘’it’s too risky’’, they say. On the other hand, they do believe that our highest court is right in criminalizing such sexual behaviours. So are we keener to believe the law over science?

And what exactly is our responsibility as individuals to protect ourselves? In a generation where casual sex is more frequent, is it ever realistic to expect our sexual partner(s) to reveal such an intimate part of their life? Do we have to expose our whole life story every time we take off our clothes, especially to individuals we may perhaps never see again? Those in favour of non-disclosure prosecutions argue that individuals ought to be fully informed before taking a decision on whether to accept or refuse sex. But it’s hard for me to see how this rationale for HIV criminalization could stand. Considering that the scientific consensus is that the risk of transmission is negligible or nil, I don’t think a ‘’right to know’’ is defensible. How far do we want to go about the vow of telling ‘’the truth, the whole truth and nothing but the truth’’? Such a vow may exist in courts and Hollywood movies, but it has no place in our bedrooms.

To be clear, I am not arguing that people should change their mind about having sex with HIV-positive partners on the basis that their fears are unfounded – absolutely not! No one should have to justify why they would or wouldn’t want to sleep with someone. But what I’m asking is: should it really be a crime not to disclose your status? Given that there is no realistic possibility of transmission, the answer seems obvious to me. Where there is no intention of transmission and where the HIV-positive partner had a low viral load or a condom was used, this sexual behaviour should not constitute a crime. As a society, we should give more weight to scientific facts in the establishment of our policies and laws. The four girls living in downtown Toronto, as most Canadians, respect and trust the authority of our judicial institutions and their rulings can have significant impacts. Therefore, our courts have a responsibility to ensure we do not discriminate against some groups in our society, including people living with HIV.

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