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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.

Additional Hurdles in Accessing Justice

2016 Moreau AndreBy André Moreau

Over the course of my internship at the Centre for Health, Human Rights and Development (CEHURD) in Kampala, I’ve witnessed some challenges with some of the cases and petitions we brought forward to the courts.

In particular, one difficulty was caused by the influx of election petitions triggered by the recent Ugandan general election, which was held on February 18, 2016. This was the 6th general election since the Uganda Bush War (1979-1986) where the National Resistance Army, led by current president Yoweri Museveni, overthrew the autocratic and militaristic regime.

February’s election saw Museveni’s controversial re-election ­–his sixth consecutive term as the President of Uganda. The election results sparked protest, arrests and a series of formal election petitions. These election petitions have put much strain on the Ugandan judicial system, which has resulted in an even longer wait before Ugandans and Ugandan organizations can access justice before the court.

This is a photo of the Ugandan Constitutional Court's Registrars Office

This is a photo of the Ugandan Constitutional Court’s Registrars Office– files upon files

Last week, Justice David Batema came to speak to the CEHURD’s staff about his experience working as a judge at the High Court of Uganda. He spoke about the courts’ challenge to process cases in a timely manner, especially during the post-election period.

When I asked him how the High Court prepares for the flood of election petitions, Justice Batema explained that the High Court developed a new strategy to minimize backlog. The High Court’s new strategy consisted of selecting 26 judges (almost two thirds of the High Court Judges in Uganda) and training them on best practices when dealing with the petitions.

To ensure nonpartisan decisions, the judges would then be relocated to a different district where they’d hear the petitions. This process, Batema explained, is designed to address all the submitted election petitions ­–hearing, trial, and judgement– within 60 days. This ambitious plan, however, is expected to exceed that timeframe. Further, if petitions are appealed, the process will take even longer.

Despite the Court’s effort to limit the backlog of cases, law firms, organizations such as CEHURD, and all the others parties involved are left with even more delays in their attempts to access justice.

Furthermore, Justice Batema has been vocal about the Courts being short-staffed: “we have very many cases, but we are few, we don’t want our people’s cases to delay here,” he said to one of the national newspapers, New Vision.

As CEHURD continues to fight for health and human rights in Uganda, this unfortunate influx of election petitions has created an additional hurdle in bringing forward cases and seeing them resolved.

Adventures in the North

2016 Lyons TheoTheo Lyons

It has already been six weeks since I arrived in Whitehorse, which means that I’m now about half way through my internship at the Yukon Human Rights Commission. I think this is a good moment to pause to reflect on what I’ve experienced so far, and what I am looking forward to doing in my remaining time here.

When I flew straight north from Vancouver on June 1, passing over seemingly endless mountains and glaciers, I had little idea of what lay in wait for me. As I sat in the loud propeller plane, I leafed through Frances Backhouse’s book, Women of the Klondyke – lent to me by my ex-Yukoner roommate, Suzanne. The stories of the wild women who participated in the gold rush did little to calm my vague feeling of apprehension. I was particularly struck by the words of Georgia Powell who, in an 1898 letter to a friend back home, wrote “Let me say right here, for number, size and ferocity these mosquitoes cannot be exaggerated, and despite leggings, gloves and the inevitable veil we were badly bitten.”

Aside from the mosquitoes, prominent among my sources of stress upon my arrival was the fact that I still hadn’t managed to find a room to sublet in Whitehorse, and town’s only hostel had just been able to offer me two nights of accommodation. These doubts evaporated the moment I walked into the Human Rights Commission and met the team with whom I would be working for the summer. I was welcomed with amazing warmth and enthusiasm, and within minutes I had been offered at least three different places to stay at while I looked for a sublet. It didn’t take me long to find a room to rent, and I’m currently living in a big shared house full of adventure-loving Yukoners and their dogs.

Author taking selfies while scrambling down from the summit of Mount Lorne

Author taking selfies while scrambling down from the summit of Mount Lorne

During my first week in Whitehorse I was given plenty of opportunities to dive into various aspects of the work of the Human Rights Commission. I studied the Yukon Human Rights Act and Regulations and learned about the structure and procedures of the Commission and the Board of Adjudication (the administrative tribunal which makes findings of violations). I was also briefed on all the cases the Commission is currently working on (about 35 different complaints), participated in interviews with several complainants, and began work on a research memo about a complex and particularly harmful form of systemic discrimination against persons with mental disabilities. At this point I have drafted several complaints, conducted interviews, researched and written responses to inquiries, and started work on my own investigation.

I’ve also been making the most of my free time in this amazing place. I’ve been going for three-hour evening rides on the huge network of mountain bike trails that surrounds Whitehorse, have hiked up four different mountains with new friends, have gone camping, and have volunteered with both a theatre festival and a folk music festival, both of which were great. While exploring the forests and mountains of the Yukon I’ve encountered ravens, eagles, friendly foxes, grouse, a huge porcupine, two territorial beavers, and a moose. Although I haven’t yet to run into any bears, I have followed the examples of the local bikers by strapping a can of bear spray to the frame of my bike, just in case!

Panorama view from the top of Monarch Mountain, above Atlin lake

Panorama view from the top of Monarch Mountain, above Atlin lake

Just as I begin to feel accustomed to the 24 hours of daylight that northerners enjoy every summer, the night skies have finally begun to get a little darker. Last weekend, while camping in Atlin, in northern BC, I saw a couple of stars for the first time since I left Montreal. I will take this reminder of the passing time as encouragement to redouble my efforts to contribute and learn as much as I can while at the Human Rights Commission, and to explore and experience everything I can while visiting this beautiful part of the world.

*UPDATE: I saw large black bear while on a bike ride several hours after writing this post… escaped unscathed!

Lives on “stand-by”

 Par Nour Saadi

 

Assise sur ma chaise, les yeux cloués sur mon écran.

They ripped off my pants with a knife and three violated me, one after the other. They pointed their guns at me, saying they were going to kill me, and beat me with their rifles. They beat me in my sex after they had finished. As this was happening, I saw a girl about five meters from where I was being raped. After they got off of her, one of them shot her in the abdomen as she was lying there. They shot her with one of their long guns. I saw the blood running down her body…. I saw this just after they had finished with me, but it wasn’t the same group.

C’est frappant, malaisant, de se retrouver dans une position où, du haut du 35e étage de l’Empire State Building, je lis sur des massacres ayant lieu chez moi, puis, à l’indication de l’aiguille passant les 18 heures, je sors du bâtiment et marche dans les rues, presque comme si de rien n’était. Mettant les cris de ces personnes sur “mute”, la vie de ces personnes en “stand-by”, alors que je rentre, prends une douche, mange et dors, puis retourne à mon écran le lendemain matin.

Voici déjà un mois de ceci.

View from the top of the Empire State Buiding

View from the top of the Empire State Building

Travailler pour Human Rights Watch reste toutefois enrichissant. Entourée de 4 avocat-e-s, aussi occupé-e-s les un-e-s que les autres, j’ai eu l’opportunité de faire de la recherche sur le Moyen-Orient, la Guinée et la Corée du Nord. La présence de 2 autres stagiaires au sein du bureau apporte son propre lot d’apprentissage. J’apprends qu’en voulant être compatissante avec l’expérience négative d’une stagiaire, justifiée ou non, je risque la mienne. Par ailleurs, je développe une certaine conscience de l’impact associé au travail que je produis, et à l’importance de lui donner une couleur qui est mienne.

L’approche de Human Rights Watch en termes de défense de droits humains repose sur l’utilisation stratégique de son influence sur des acteurs clés de la communauté internationale. Le rôle de la Cour pénale internationale ainsi que les défis auxquelles elle fait face commencent à prendre forme, ce qui génère en moi de nombreux repositionnements.

The more I understand how the ICC works, the more I am shocked to see the difference with Canadian domestic courts, the Supreme Court for instance, which writes decision with an air of “the Court has spoken”, while the International Criminal Court, with the mandate to investigate and prosecute crimes against humanity, war crimes etc. –the most serious international crimes – needs permission to speak.

 

In the middle of this organized mess, I ask myself: where do I stand? Where do I start?

 

As I sat there, no more than three meters away, I saw them shoot an old man dressed as an imam in the head while he was praying. The old man was in the process of praying, because in the Muslim faith, if you are going to die, it is necessary to pray before dying. He was in the process of praying and a red beret walked up to him and shot him in the head with a pistol. Nearby, there was another man who wanted to pray. As he kneeled there, one of the ones wearing gris-gris said, “Don’t say another prayer,” and came up behind him and slit his throat.

 

On these last nights of Ramadan,

I pray with all my heart. I pray for the people I might not know, for the people I might not see, but for the people I can feel. I pray, because I am confused. What is my role, as a jurist? What can I do as a lawyer, really? What has law ever done for humanity, other than providing a sophisticated knife to deep-pocketed opportunists, other than providing rules conveniently drafted to relieve the anxiety of complicit observers, other than manufacturing hope?

 

On these last nights of Ramadan,

I pray for a night of peace.

Only one.

 

Nour Saadi

 

Air Train

Air Train, New York City

 

First testimony: A 26-year-old housecleaner who was gang raped by three members of the Presidential Guard on the September 28, 2009 massacre and rapes in the Conakry Stadium.

Second testimony: A 19-year-old student who was beaten by security forces and hid in an area under construction behind the stadium.

La détermination des peines au Nunavut : un exercice sui generis

Étienne F. LacombeÉtienne F. Lacombe

Quelles que soient ses connaissances au préalable, l’étudiant(e) qui effectue son stage auprès du bureau d’aide juridique d’Iqaluit ne peut s’empêcher de développer une intime familiarité avec la détermination des peines (sentencing). Qu’un dossier n’en soit qu’à ses débuts ou que la cause tire à sa fin, le criminaliste se doit de pouvoir estimer une peine appropriée – et il revient souvent à l’étudiant(e) de parvenir à une estimation. Il s’agit d’un curieux travail étant donné l’unicité de la criminalité au Nunavut et le peu d’arrêts publiés. D’ailleurs, il est souvent possible de survoler l’ensemble des décisions de la Cour de justice du Nunavut sur une infraction du Code criminel sans y repérer d’arrêts semblables.

Il y a quelques semaines, je discutais de mon travail à Maliiganik Tukisiiniakvik avec un juge de la Cour suprême en visite pour la première fois à Iqaluit. Celui-ci me demanda alors si l’on pourrait qualifier la détermination des peines au Nunavut de sui generis. À mon sens, la détermination des peines dans ce vaste territoire se distingue de celle des autres juridictions canadiennes, quoique la compétence fédérale en matière de droit criminel lui impose tout de même certaines contraintes. D’une part, les juristes nunavummiuts ont su s’approprier les concepts reconnus dans l’ensemble du pays—tels les rapports Gladue et la justice réparatrice—pour y infuser des valeurs inuites et refléter les préoccupations propres à leur territoire. D’autre part, des limites au plan structurel, dont les peines minimales et les ressources au niveau correctionnel, restreignent le caractère sui generis de la détermination des peines au Nunavut.

Les principes qui encadrent la détermination des peines figurent à l’article 718.2 du Code criminel. Parmi ceux-ci, l’alinéa e) impose aux tribunaux « l’examen, plus particulièrement en ce qui concerne les délinquants autochtones, de toutes les sanctions substitutives qui sont raisonnables dans les circonstances et qui tiennent compte du tort causé aux victimes ou à la collectivité ». La Cour suprême s’est prononcée sur cet alinéa dans les arrêts R c Gladue et R c Ipeelee, entre autres, pour prescrire aux juges qui imposent une peine à un délinquant autochtone de considérer toute solution de rechange à l’incarcération. En l’absence de telles solutions, la peine d’emprisonnement devrait être restreinte. Étant donné les tristes réalités historiques et systémiques qui affligent de nombreux accusés, la Cour de justice du Nunavut est en mesure d’imposer avec régularité des sentences qui tiennent compte de l’unicité de la population majoritairement autochtone.

Les juristes nunavummiuts ont également su tailler la détermination des peines à leur façon par le biais de la justice réparatrice. La justice réparatrice existe dans l’ensemble des juridictions canadiennes. Elle permet aux victimes et aux membres de la communauté de joueur un rôle actif pour régler le tort causé par le délinquant en facilitant un dialogue entre les parties, par exemple. Au Nunavut, il existe un comité de la justice dans chacune des communautés du territoire. Ces comités, nous expliqua-t-on lors d’une formation au début de l’été, se servent de valeurs sociétales inuites pour que la justice réparatrice reflète les attentes et les besoins du Nunavut.

Dans certains cas, il est possible pour les juges du Nunavut d’imposer une peine qui tient compte des problèmes sociaux les plus importants du territoire. Les effets de la toxicomanie et de l’abus de stupéfiants, par exemple, se ressentent nommément dans le Nord canadien. Les juges ne se gênent donc pas pour souligner l’importance particulière de lutter contre le trafic de stupéfiants au Nunavut (voir par exemple R v KP et R v Qrunngnut).

Par contre, d’autres préoccupations ne peuvent être convenablement reflétées dans la détermination des peines en vertu des limites au plan structurel. En ce qui concerne la législation fédérale, les peines minimales restreignent le caractère sui generis de la détermination des peines au Nunavut.

Dans un premier temps, la promotion de la culture inuite est particulièrement importante au Nunavut. Bien entendu, il est plus facile pour les détenus inuits de vivre leur culture dans le territoire. Comme me l’expliquait un des gardiens, les employés des prisons territoriales ont pour mandat de faciliter un encadrement culturel pour les détenus. La possibilité de purger sa peine dans un des établissements d’Iqaluit n’est toutefois ouverte qu’aux délinquants condamnés à moins de deux ans de prison. Pour ceux à qui les peines minimales imposent une sentence de deux ans ou plus, le juge ne peut empêcher que l’individu soit transporté à un pénitencier dans l’une des provinces.

Dans un deuxième temps, un défi semblable s’impose quant à l’employabilité. Les juges sont conscients du peu de travail rémunéré qui s’offre à certaines tranches de la population du Nunavut. Pour nombre d’infractions, une peine discontinue permet au délinquant de conserver son emploi en purgeant sa peine la fin de semaine. Puisque cet accommodement n’est disponible que pour les sentences de moins de 90 jours, un juge qui se doit d’imposer une peine minimale de 120 jours, par exemple, se trouve dans la fâcheuse obligation de compromettre l’emploi du délinquant sans savoir s’il pourra le regagner.

Enfin, la disponibilité des ressources sur le plan correctionnel limite la flexibilité dont jouissent les juges du Nunavut dans la détermination des peines. Ailleurs au pays, il est possible pour le tribunal de reporter la détermination de la peine afin que le délinquant puisse participer à un programme de traitement agréé par le gouvernement (voir l’article 720(2) du Code criminel). Or, le gouvernement du Nunavut n’a à ce jour approuvé aucun programme de ce type ; ceux-ci n’existent pas dans les communautés. En effet, les programmes de traitement pour la toxicomanie et la violence conjugale ne sont principalement offerts que dans les prisons. Compte tenu de cette situation, le juge doyen de la Cour de justice du Nunavut constate que « [t]he court has had to adjust its sentencing posture to reflect the stark realities of Nunavut » (R v JN).

Les juges du Nunavut sont appelés à infliger des peines dans un contexte sans pareil. Il n’est donc pas étonnant que ceux-ci se soient approprié les concepts reconnus dans l’ensemble du pays afin que leurs sentences reflètent l’unicité du territoire et de sa population. L’on pourrait ainsi qualifier la détermination des peines au Nunavut de sui generis. Toutefois, force est de constater que certaines préoccupations telles la promotion de la culture inuite et l’employabilité ne peuvent être pleinement prises en compte dans le cadre qu’impose la législation fédérale et la distribution des ressources. C’est dans ces circonstances qu’évolue la détermination des peines au Nunavut : confrontée d’une part par d’uniques problématiques et d’autre part par les bornes qui lui sont imposées.

Just Keep Swimming

By André Capretti

In the past few months, Cambodian civil society has made concerted efforts to lobby foreign governments who are among Cambodia’s biggest aid donors, in the hopes of pressuring the government to cease violating human rights and making a mockery of the justice system. By using aid money as leverage, foreign governments can advocate for improvements in the State’s treatment of its citizens and for the respect of fundamental freedoms and civil liberties.

However, for a long time embassies in Phnom Penh were disturbingly quiet about the politically motivated repression of the State’s most ardent critics and high-profile opponents. While activists, opposition politicians and human rights defenders were being thrown into prison one after the other, far too many foreign delegations limited their statements to “expressions of deep concern”. “Concern”, no matter how deep or heartfelt it may be, is not an effective tool for bringing about serious change in the ruthless Cambodian political landscape. It is even less appropriate from actors like the United States EmbassyUN Secretary-General Ban-ki Moon, or the European Union delegation, who have the gravitas and influence necessary to make a difference through their words and actions.

So when the European Parliament voted for a resolution on June 9, which called for the body’s 410 million€ of aid to be made conditional on improvements in Cambodia’s human rights situation, there seemed to be signs for potential rejoicing. And yet the Cambodian government’s response to the EU’s diplomatic move was harsh and dismissive. Prime Minister Hun Sen made a speech in which he stated, “China has never made a threat to Cambodia and has never ordered Cambodia to do something…You threaten to cut off aid; please cut it and the first person who will suffer will be the people who work with NGOs.”

These comments present two worrisome issues. Firstly, what to do when countries like China, who have no qualms about less than stellar human rights records, present themselves as aid partners for developing countries, making withholding aid no longer a viable means of affecting change? Secondly, what to do when a government calls your bluff and appears to relish the possibility of cutting off money from NGOs?

The government of Cambodia has long prioritized economic development and security at the expense of democracy and human rights, without acknowledging that those do not have to be mutually exclusive goals. Cambodia’s recent response to the threats made by the EU is alarming, as it demonstrates that they are not afraid to expand the chasm between development and human rights even further.

Here’s an interesting Op-Ed from the New York Times on the role of human rights in the World Bank’s development policies.

 **********

            Lorsque je lis les nouvelles cambodgiennes sur les réseaux sociaux, il m’arrive parfois de me demander si l’article que je lis est une parodie ou un article sérieux. L’absurdité des propos des membres du gouvernement dans leurs entrevues et dans leurs déclarations aux médias rend la tâche particulièrement difficile.

Prenons par exemple le vidéo intitulé « Using Rights in Anarchic Way », produit récemment par le gouvernement. Dans ce vidéo, le gouvernement avertit les cambodgiens que si ils utilisent leurs droits « de la mauvaise façon », ils risquent de reproduire les mêmes sortes de guerres civiles qu’ont vécues la Libye et la Syrie, après que le peuple s’est opposé au gouvernement. Sans aucun signe d’ironie, le narrateur raconte que l’usage excessif des droits amènera la destruction, des familles éclatées, la perte d’une centaine de milliers de vies et d’habitats, et le carnage. Le narrateur conclut qu’après toutes ces horreurs, il ne restera que des souvenirs douloureux.

Le message transmis au public par le gouvernement dans ce vidéo est clair. Arrêtez donc de manifester, de vous exprimer, de vous plaindre contre la corruption, la répression de l’État, l’abus du système judiciaire et l’harcèlement de la société civile. Si vous ne restez pas en silence, on n’hésitera pas à utiliser la violence et la brutalité pour vous écraser, comme ils ont fait en Syrie et en Libye. Il est encore plus difficile de croire que l’organe du gouvernement qui a publié la vidéo est le Cambodian Human Rights Committee, un organe qui est censé promouvoir les droits humains !

En bref c’est ça la situation des droits humains au Cambodge : la ligne entre la réalité et l’absurde est floue. C’est un pays où le ministre de la défense menace d’emprisonner les gens s’ils manifestent pacifiquement sans demander de permission. Un pays où le passetemps préféré du premier ministre semble être de faire taire ses adversaires et ses critiques avec des poursuites en diffamation. Un pays où le gouvernement déclare que les manifestants doivent demander la permission du gouvernement pour s’exprimer sur les réseaux sociaux. Un pays où le double standard entre les partis critiques du gouvernement et les amis proches du régime est flagrant et injuste. Pendant que le chef député de l’opposition fait face à des chefs d’accusions banals motivés par des intérêts politiques, des haut placés dans le gouvernement sont protégés des regards du tribunal chargé de réprimer les crimes de l’ère des Khmers rouges. Ce type d’impunité est tout simplement inacceptable pour un pays qui prétend respecter les droits humains et la justice.

            Ce qui est le plus absurde dans tout ça c’est de voir comment le droit, le système de justice et le discours des droits humains peuvent être maniés d’une façon aussi grotesque, par un gouvernement qui a si peu de respect pour son peuple.

 **********

            Last summer I followed with great interest Brodie Noga’s blogs, where he recounted his experiences as an intern with LICADHO. In particular, one of his blogs caught my attention, and left a lasting impression in my mind: Monitoring a Trial for Insurrection.  

Recently, I had the chance to witness the second act of this case, as three members of the youth wing of the opposition political party were being put on trial for the same events as their predecessors, accused of leading and participating in an insurrection, for their actions in a 2014 peaceful protest turned violent.

What I witnessed during the two hearings I attended was a shocking display of political theatre. The judge made no effort to conceal that the defendants’ presumption of innocence had been replaced with a presumption of guilt. One of the defendants, Yea Thong, provided compelling testimony which indicated that he had very likely been at the wrong place at the wrong time, and possibly the victim of a case of mistaken identity. Yet the judge made absolutely no effort to probe his claims further, making it clear that the defendants’ guilt had been predetermined.

What was most appalling was the ridiculous case presented by the prosecutor, who brought forth no evidence to corroborate the allegations and barred the defence from calling on key witnesses for additional questioning. The prosecutor made the absurd argument that although the defendants’ actions did not involve the constituting acts of the offence of insurrection, their arrests and prosecutions were justified on the grounds that this offence had to be dealt with pre-emptively.

I felt confident that there was no way a reasonable judge would convict the three men of any crime, much less a crime like insurrection which carries a sentence ranging from seven to 15 years of imprisonment. I soon learned that was naïve of me.

On the day the verdict was handed down, I observed a similar scene to that which Brodie had witnessed a year prior. While waiting for the judges to show up, the three defendants smiled and laughed with their family members in the audience. My eyes lingered on Yea Thong, the defendant whose testimony I had heard and who I was convinced was completely innocent. He seemed relaxed and unworried, laughing along with his fellow defendants. He even gave a reassuring wink to his wife, sitting two rows behind him, as if to say, “Don’t worry honey, this will all be over soon enough”.

And then the judge entered the chambers. Immediately the mood in the room changed. The tension was palpable as the judge began to rattle off the charges and read out the verdicts. My Khmer colleague whispered in my ear, “7 years. All three of them”. My heart sank. I looked over to the defendants, to Yea Thong in particular. From behind I could see that his hands had begun to shake. And then his arms began to tremble as well. As the prison guards took away the three –now convicted – men, their families started to shout and scream, many of them in tears.

In that moment, I was dumbfounded by the verdict. That feeling would slowly be replaced in equal parts by feelings of fury and sorrow. Yea Thong later denounced his verdict, noting that “[n]othing about this is remarkable because the courts in Cambodia are not fair to people.” His wife would go on to add that “[t]here is no justice, brother, because my husband did not do anything wrong. Courts in Cambodia are not fair for the powerless people.”

I didn’t have much time to recover from that disturbing scene before we zoomed off on a tuk-tuk to the Appeals Court. Once there, we waited to hear whether the five human rights defenders who had been in pre-trial detention since May 2 would have their requests for bail allowed. Once again, being a young, naïve and idealistic law student, I thought they might actually be granted bail. Under the law, they certainly qualified for it. Yet as I had just seen in the insurrection case, and as my colleagues had repeatedly reminded me, the law was not a prime consideration in cases like these. Inexplicably, the five were denied bail by the court, which tried providing some semblance of a justification for its decision to mask the clear political motivations behind the case. With a heavy heart, I headed home. In one day I had had a front row seat to two major injustices perpetrated by Cambodia’s justice system. I am beginning to realize that the struggles of human rights work can erode even the most hardened layers of optimism and idealism.

Advocacy material for the Black Monday campaign
Advocacy material for the Black Monday campaign
The beach on Rabbit Island near Kep
The beach on Rabbit Island near Kep

 

Luckily, the LICADHO team held its annual staff retreat soon after in the seaside town of Kep. The idyllic locale, with the calming smell and sound of the ocean, did wonders for my morale. The time spent together, laughing, sharing meals, playing games, lifted everyone’s spirits. It was much needed. No matter how demoralizing, disheartening or depressing human rights work can be, it is far too valuable to ever give up. While we may sometimes lose hope, I was reminded of an important lesson when I recently went to the movie theatres to see Finding Dory.

When life gets you down, you know what you gotta do?

Just keep swimming. Just keep swimming, swimming, swimming. What do we do? We swim, swim.  

Let’s Talk About Drugs

2016-KohutRachelBy Rachel Kohut

Last Friday, the Canadian HIV/AIDS Legal Network co-hosted the conference Chartering the Future of Drug Policy in Canada. The conference had a strong start. Federal Minister of Health Jane Philpott opened the conference by calling Canada’s opioid problem “nothing short of a public-health crisis”.

One-Day Post-Canadian Public Health Association Conference Session

In response to this crisis, the Minister announced that she has ordered an expedited review of naloxone nasal spray. Known by its trade name, Narcan, this nasal spray can be used as an antidote to opioid overdoses. It is currently used in primarily western Canada to combat the ever-increasing number of fatal fentanyl drug overdoses.

[read more about her announcement here in The Globe and Mail]

Minister of Health during her speech at the conference.

Minister of Health during her speech at the conference.

This announcement came at the same time as the B.C. Centre for Disease Control admitted that steep prices are hindering access to naloxone, and authorities across the country are calling for the crisis of the number of opioid overdoses to be declared as a public health emergency. To note, the B.C. Centre for Disease Control has now distributed over 9 700 free “Narcan kits”, of which 1 400 have been used to help people from overdosing, and about 8 900 people have been trained to administer the antidote through a provincial harm reduction program, Toward the Heart.

A drug considered to be 30 to 50 times stronger than heroin, an investigation by the chief coroner of British Columbia found that fentanyl was detected in the blood of 148 people who died of a drug overdose in the first four months of 2016 alone. This is more than three times the number in the same period of last year.

In Vancouver, this translates to one death every five days.

[see more about the use of Narcan in the response to fentanyl overdoses in this article]

Following the Minister of Health’s speech, she gracefully took questions from the audience, including from people who use drugs, many of whom flagged the need to do something about the increase of opioid drug overdoses, particularly in western Canada.

João Goulão—the National Drug Coordinator of Portugal, who is often heralded as the architect of the country’s national drug policy—was also in attendance at the one-day conference to present on Portugal’s experience decriminalizing drugs. That’s right. The country decriminalized every drug, from marijuana to cocaine to heroin.

If you are caught with less than a 10-day supply of any narcotic today in Portugal, the penalty is almost the equivalent of a speeding ticket.

Before decriminalizing drugs, the former physician said that “it was impossible to find a Portuguese family that did not have (drug-related) problems”. But in treating drug-use as a public health problem, and not a criminal one, the theory goes that more people are likely to seek treatment and support.

Instead of heading to jail, it is more likely that the person caught with less than a 10-day supply will be referred a committee consisting of a health professional, lawyer and social worker that determines the best step forward. This multifactorial approach attempts to get to the bottom of the issue. So the national strategy was not just to decriminalize: it was to create a complete package of policies that focus on treatment, prevention, harm reduction, reintegration and methadone treatment, among other avenues.

And even though there has been hesitations and critiques about this strategy, the numbers have illustrated very positive public health outcomes.

Although drug use did appear to climb in the first few years after decriminalization, it has since decreased, with the number of cocaine and heroin addicts steadily decreasing. And with the decrease of intravenous drug use, the number of new HIV and HCV infections due to intravenous drug use has also plunged, falling from 1 000 in 2001 to less than 100 in 2013. And drug-caused deaths? They dropped from 80 to 20 per year, far below the European Union average.

[read more in this National Post article, and in this Toronto Star article]

But what the Canadian federal government is currently proposing is not as broad sweeping. They aren’t going to decriminalize all drugs, instead seeking to legalize one: marijuana. But in ignoring other drugs from this strategy, are they glancing over a more pressing public health emergency? Could Canada learn a thing or two from a country of 10 million people right across the Atlantic on how to create a more complete package of policies? So Canada, let’s start talking about not just one drug, but all drugs.

Fellow UofT intern, Chelsey, and I at the end of the conference.

Captions generated from the #SupportDontPunish photo campaign held during the conference.

Captions generated from the #SupportDontPunish photo campaign held during the conference.

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