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Canada’s Progress in its Commitment to Ending AIDS as a Global Health Threat by 2030

Nick PineauBy Nick Pineau

My final project with the HIV Legal Network involved writing a report analyzing Canada’s progress in its commitment toward ending AIDS as a global health threat by 2030. In March 2021, UNAIDS released its Global AIDS Strategy (hereafter “the Strategy”) for 2021–2026, which offers numerous recommendations to ensure the world has zero new HIV infections, zero discrimination, and zero AIDS-related deaths by 2030. However, as COVID-19 developed into another global pandemic in early 2020, the progress toward ending the AIDS epidemic has halted. Furthermore, the twin pandemics have inequitably exacerbated the impact AIDS has on marginalized communities. To properly assess the barriers to people living with or affected by HIV, the Strategy offers numerous recommendations through an “inequalities lens”, evaluating the pandemic’s impact from the perspective of those most affected by it.

Despite its commitment toward ending the AIDS epidemic, Canada is still far from achieving the goals it has set out for itself. By 2019, over forty countries were within reach of the epidemiological milestone of endings AIDS—yet Canada was not among them. Populations at risk of HIV, including men who have sex with men, transgender people, people who inject drugs, sex workers and their clients, and people in prisons or other closed settings, remain in a precarious position within our country. Much of the HIV Legal Network’s work centres around the result areas mentioned in the Strategy. For this blog post, I will take a look at how Canada is doing in comparison to the Strategy’s recommendations in three key areas: prison rights, drug use, and HIV non-disclosure.

For prison rights, the Strategy advocates for a harm reduction approach for prison or other closed settings, including voluntary HIV testing and treatment, needle-syringe programs, opioid substitution therapy, and naloxone kits. While the Correctional Services of Canada stipulates that they offer inmate HIV testing, access to opioid treatment, and PrEP & PEP, there is limited data on the prevalence of such programs at each individual facility across Canada. The CSC should strive to better report on such programs to properly assess whether Canadian inmates are receiving adequate harm reduction services. Furthermore, Canada’s Prison Needle Exchange Program has not accelerated at the requisite rate—the program has only been implemented at 11 of the 53 federal institutions in Canada. Such a program could significantly reduce HIV transmission at closed facilities and secure inmates’ right to security of the person.

The Strategy also recommends that discriminatory laws and policies against drug use ought to be repealed, including those that criminalize drug possession for personal use. Rather than punish and stigmatize people who use drugs, a health-centred approach to drug use should be comprehensive, people-centred (with community-led responses and systems), and gender transformative. Canada has recently made progress in decriminalizing drug possession for personal use—a prosecutorial directive was issued in August 2020 to divert individuals from the criminal justice system for simple possession cases. Yet the criminal system may remain a blunt tool to deal with the intricacies of drug use. Rather than further stigmatizing individuals who use drugs by sending them to prison for, for instance, sharing between friends (and thus trafficking), Canada ought to adopt a health-centred model for dealing with drug use and not further entrench the marginalization of people who use drugs.

Finally, Canada is among the 92 countries worldwide that criminalize HIV non-disclosure. The Strategy recommends creating an enabling legal environment that de-stigmatizes seropositivity and the removal of discriminatory laws that criminalize HIV non-disclosure. The concept of U=U, undetectable = transmissible, whereby HIV-positive individuals with ‘undetectable’ viral loads cannot realistically transmit the virus, has the potential to accelerate anti-stigma efforts. Canada has recently made progress in lessening the criminality of HIV non-disclosure, with then-Attorney General Jody Wilson-Raybould issuing a prosecutorial directive in 2018 not to prosecute HIV non-disclosure except in more severe cases. Wilson-Raybould acknowledged that HIV is a public health issue that disproportionately affects Indigenous, gay, and Black persons in Canada, and I would contend that using the criminal law to solve such an issue can further entrench stigmatization. Yet the directive’s force is lesser than if a Criminal Code amendment were made to legislate on the subject. HIV non-disclosure remains a crime on the books in Canada, and can be prosecuted as aggravated sexual assault which carries a maximum penalty of life imprisonment. This could undermine public health initiatives to encourage HIV testing, and may simultaneously increase the stigma and discrimination faced by people living with HIV. Canada should adhere to the Strategy’s recommendations to fully realize the rights of those living with HIV.

This brief survey demonstrates that Canada has much to do in order to ensure the country is on track toward ending AIDS as a public health threat by 2030. Canada ought to adhere to the Strategy’s recommendations and fully implement harm reduction initiatives in prisons, decriminalize drug possession for personal use, and decriminalize HIV non-disclosure. With renewed political commitment, advocacy, and community mobilization, Canada has the potential to fully realize the human rights of people living with or affected by HIV and AIDS.

The work continues

Chrys Saget-RichardBy Chrys Saget-Richard

The end of my summer internship at Equitas provided me with many invaluable personal and professional lessons. First off, I was able to hone some skills and knowledge that I already had, while being challenged to apply them in a completely different setting. Feeling valued as a team member and encouraged to ask questions and make suggestions helped me feel as though I actually had something meaningful to offer. 

I learned a lot about the impact of working in silos and the consequences that may have, especially in a virtual work setting as well as how to mitigate against them in real-time. Equitas genuinely believes in the value of mentorship, relationship building, and sustainable impact and I feel so incredibly lucky to be able to continue with them this fall to see the work we did over the summer play out. 

This internship has given me a lot to think about in terms of my personal challenges and strengths as well as in the terms of the work I would like to pursue in the future. Going into this summer, I wasn’t sure if human rights work was for me in a formal sense, especially with a narrowed lens on ‘lawyering’, but after these past few months with Equitas, I have been introduced to so many possibilities and opportunities.

As I enter 4L, I feel a bit more at ease knowing that even for someone like me who ended up in law school and has struggled the whole way through, there may be a place for me where I can do decent work and put these degrees to good use – a feeling I am so deeply grateful for.

Thank you Equitas, and thank you IHRIP Team

Going North

Sarah NixonBy Sarah Nixon

The views expressed in this blog are my own.

Before my placement with Nunavut Legal Aid this past summer, I spent very little time thinking about Nunavut, and even less about working in criminal defence. Now, after nine weeks working remotely and three weeks in-person in the territory, I can’t get either off my mind.

Arriving in Iqaluit in early August, I was stunned at how beautiful it was. Being north of the treeline, you can see very far in the distance from almost any vantage point, and you often pass striking views of the Arctic Ocean and rolling hills while simply walking around town from point A to point B. Two of the schools in the city are up on one of the highest hills in Iqaluit, with a panoramic view of the inlet and mountains on the other side of the water. I’ve never seen a school with such a breathtaking view, and as one of my hosts commented, it’s no wonder people might struggle to adjust to their new surroundings if they leave this incredibly scenic place for the South of Canada.

In Iqaluit, you can also walk about twenty minutes in one direction from pretty well any place in the city to find yourself somewhere that there is ‘only’ tundra as far as the eye can see. I use scare quotes here because the tundra itself is especially beautiful, with so many different types of moss and low shrubs growing over one another amongst the varying coloured rocks and purple saxifrage. With all of the beautiful views to take in, I was glad to benefit from late evening light (the sun set around 10:00 pm while I was there) for many long walks around Iqaluit after work.

View on the water in Iqaluit

 

The tundra with purple saxifrage

 

View from two of the schools (!!)

Inuktitut is very widely spoken in Nunavut, including by some of the Legal Aid staff in the Iqaluit office. It was a pleasure to hear the language being spoken around me in the halls and gathering places at the office, and to have kind staff members share new words and phrases with me.

At the same time, the lack of Inuktitut-speaking lawyers and judges in the territory creates challenges for criminalized people and actors within the criminal justice system. While live translation is available during court proceedings, it is not always accessible during client meetings, nor when community members are speaking with police during the events that lead to criminal charges. The Nunavut Law Program, which produced its first class of graduates in Spring 2021, will surely help to address this issue in the coming years. However, it does not appear that there is any plan in place to change the system of ‘rotation’ of RCMP officers coming from various places in the South to spend short periods of time working in Nunavut.

The challenge of communicating across this language barrier likely impedes understanding between English-speaking RCMP officers and those Nunavummiut whose first language is Inuktitut. One thing I observed repeatedly over the summer is the crucial role that police officers play in deciding when to recommend charges to the Crown. When interactions between police and community members are hampered by a language barrier, this decision-making process is surely affected.

Evening view in Iqaluit

It is difficult to write much more about my work this summer as I was privileged to be directly involved with a great number of clients’ cases, meaning the vast majority of my work was confidential. I can say, however, that criminal defence work is mentally and emotionally very challenging. Whether working remotely or in-person, I was exposed to many traumatic stories and experiences.

Often enough, I found I could not begin to process each story and still finish that day’s work. It is certainly possible to prepare for and manage this experience, but to any future student considering this position, please plan to do so in a way that works best for you. To be clear, I hope this small ‘disclaimer’ does not deter any future intern, as I can assure you that the difficult parts of the placement were more than balanced by demonstrations of bravery, love, and resilience, by clients, their families, and all the staff at Legal Aid. I am grateful for the truly pivotal experience that this placement offered me, and I would be glad to discuss it in more depth with any interested applicant.

 

 

 

The Right to Housing in Canada

Kazumi MooreBy Kazumi Moore

The National Housing Strategy Act, 2019 (NHSA) created my office, the Office of the Federal Housing Advocate at the Canadian Human Rights Commission. It also declared that housing was a human right (NHSA s.4). Canada has ratified the International Covenant on Economic, Social and Cultural Rights, which includes the right to adequate housing at Article 11. However, in the common law, it’s often said that there’s no right without a remedy, and Canadian courts have been reluctant to recognize a right to housing.

The right to housing has only been looked at by Canadian courts a few times. In City of Victoria v Adams (2008), the homeless community in Canada challenged a city bylaw that banned the construction of temporary shelters in public parks where the litigants lived as a violation of their s.7 rights (life, liberty, security of the person). The judge agreed that the ban unjustifiably violated s.7 and the decision was upheld by the British Columbia Court of Appeal. Notably, City of Victoria v Adams was decided prior to the enactment of the NHSA.

The right to adequate housing was litigated directly in Tanudjaja v Canada (Attorney General) (2014).  Individual applicants suffering from homelessness and inadequate housing brought Charter ss.7 and 15 (equality) claims against the Canadian government’s general approach to housing, which resulted in social conditions that violated their rights. This case was decided on a motion to dismiss, not the merits. The motion judge found “no positive Charter obligation which required Canada and Ontario to provide for ‘affordable, adequate, accessible housing’” or any breach of the principles of fundamental justice regarding the s.7 claim (ONCA, para 17). On the s.15 claim, the motion judge found that the applicants were not denied a benefit conferred to others or burdened compared to others by the actions of the government, and that homelessness or inadequate housing did not constitute an analogous ground of discrimination. The motion judge concluded that the claim for a right to adequate housing was not justiciable, a decision upheld by a majority of the Ontario Court of Appeal. The Supreme Court denied leave to appeal.

There is a general assertion that “positive claims against the state for the provision of certain needs are not justiciable because they would require courts to dictate to the state how it should allocate scarce resources, a role for which they are not institutionally competent” (Gosselin v Quebec (AG), para 330). While there is international consensus that the “positive” and “negative” rights dichotomy is false and not useful, Canadian courts still look at positive obligations as “non-justiciable.” That said, positive obligations have been found in other non-housing contexts, such as Canada v PHS Community Services (2011) for s.7 and Eldridge v BC (AG) (1997) for s.15.

According to the Supreme Court in R v Ewanchuk (1999), “the Charter is the primary vehicle through which international human rights achieve domestic effect. […] In particular s.15 (equality provisions) and s.7 (which guarantees the right to life, security and liberty of the person) embody the notion of respect of human dignity and integrity” (para 73). The concept of human dignity is particularly relevant to the right to adequate housing. One expert our office met with noted that Ontario courts have stated eviction is next worst thing that can happen to someone after incarceration. Human dignity is also referenced in the National Housing Strategy Act in s.4(b): “housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities.”

Gosselin v Quebec (AG) (2002) is a leading case used to try to get the courts to recognize positive obligations in Charter rights. It concerned an inadequate level of social assistance benefits given to the applicant who had not enrolled in a workfare program. The majority of the Supreme Court ruled against the applicant with a restrictive interpretation of s.7, emphasizing a “deprivation” of the right to life, liberty, and security of the person. However, the majority also stated that “one day s.7 may be interpreted to include positive obligations” (para 82). Arbour J. wrote a significant dissent, arguing that s.7 “imposes a positive obligation on the state to offer basic protection for the life, liberty and security of its citizens,” and that “justiciability is [not] a threshold issue barring the consideration of the substantive claim in this case” (headnote). Bastarache J. in a separate dissent suggested that poverty could constitute an s.15 analogous ground of discrimination, stating “the fact that people on social assistance are in a precarious, vulnerable position adds weight to the argument that differentiation that affects them negatively may pose a greater threat to their human dignity” (para 238).

The COVID-19 pandemic has also impacted how housing is viewed, both by the public and by the law. The UN Special Rapporteur on the right to adequate housing stated that “housing is the front-line defence against COVID-19.” People were told to “stay home,” even though not everyone had housing where they could stay to protect themselves and others from COVID-19. In Quebec, a curfew between the hours of 8PM and 5AM was ordered as a public health measure. This disproportionately affected people experiencing homelessness, who had nowhere to go. A safeguard order brought to prevent the curfew and fines from applying the homeless population was granted, and the judge noted that serious questions were raised about whether the curfew infringed the ss.7 and 15 rights of people experiencing homelessness. However, there were also some positive developments in the right to housing, like eviction moratoriums, rental relief, hotels opened to people experiencing homelessness. While none of these solutions were perfect, it is important to capitalize on this progress while continuing to call attention to flaws in policies and new issues (policing encampments). While we strive for the judicial recognition of the right to housing, we should also think about what the right to housing looks like outside of the courts.

Navigating the Ins and Outs of the Yukon Human Rights Act

Garima Karia

By Garima Karia

During my time at the Yukon Human Rights Commission (the “Commission”), I drafted legal memos for the Legal Counsel and Director. The subject matters of these legal memos often arose out of ongoing Commission investigations, or live matters before the Director, which made them both timely and interesting. The memos also often dealt with interpreting and potentially expanding the scope of the Yukon Human Rights Act. In this blog, I will highlight my findings from my largest undertaking during the internship: a memo I drafted on section 12 of the Yukon Human Rights Act. Currently, section 12 of the Act reads as follows:

Systemic discrimination: “Any conduct that results in discrimination is discrimination.”

My colleagues at the Commission and I thought that this definition of systemic discrimination could use some work as it lacks clarity and specificity. Therefore, my task was to do a deep dive into how the term should be defined, and to propose a series of reforms to this section of to the Act that could clarify the definition of systemic racism/discrimination.  To ensure that I proposed a comprehensive set of recommendations, I surveyed all Canadian human rights legislation (provincial, territorial, federal) and jurisprudence to assess if and how other jurisdictions drafted provisions relating to systemic discrimination, and how these provisions were interpreted by tribunals and courts. I also looked broadly at academic commentary on the matter.

I found that, currently, no exemplary definition of systemic discrimination exists in Canadian legislation. However, upon surveying different definitions and interpretations of the term, I identified six key characteristics that, if combined, could make up a comprehensive definition of systemic discrimination. These key elements are the following:

  1. The effect or impact of a policy or act, rather than its intention, is at the crux of systemic discrimination. In other words, if a well-intentioned policy or act has the effect or impact of disadvantageous treatment of a particular protected group, it may be considered to perpetuate systemic discrimination despite its intent.
  2. Facially neutral policies or acts may cause systemic discrimination.
  3. Systemic discrimination is often subtle or “hidden.”
  4. Systemic discrimination is rooted in long-standing social and cultural attitudes and norms.
  5. Systemic discrimination may be embedded or detected in patterns/series/continuing phenomena that have significant cumulative effects. In other words, “the whole is greater than the sum of its parts” when it comes to the collective effect of various instances of discrimination or differential treatment that result in systemic discrimination.
  6. Systemic discrimination often contains an element of intersectionality.

In addition to the Yukon, Manitoba and Saskatchewan are the only other jurisdictions that define or include systemic discrimination in a meaningful way in their human rights legislation. While Saskatchewan’s Code does not include a definition, it empowers its Commission to prevent and address systemic patterns of discrimination. Manitoba’s definition is more specific than Yukon’s in that it includes elements of “effect/impact over intent” and “pattern/series/continuing phenomena resulting in significant cumulative effects,” but is still missing other key elements from the list above. As such, I proposed that a re-formulation of section 12 include all six key elements, as well as a provision that empowers the Commission to tackle the issue of systemic discrimination specifically.

Amending the systemic discrimination provision of the Act is important because manifestations of systemic discrimination undoubtedly make their way into human rights complaints. Even in cases of more “overt” systemic discrimination (e.g. if a pattern of behaviour is apparent or a complainant has been able to track acts of discrimination and their cumulative effect over time), a clear definition of the term and all that it may entail will empower complainants as well as Commissions and Tribunals to better interpret and deal with the impacts of systemic discrimination. Moreover, giving Commissions the agency to address and combat systemic discrimination as part of their mandates may produce creative and productive results.

Through my in-depth research and broad survey of how systemic discrimination has been conceptualized by courts, legislatures, human rights commissions, and academics across Canada, I have identified a list of key features that I argue should be integrated into any legislation or body’s definition of the term. In so doing, these bodies will give courts, complainants, and the public a clearer idea of what systemic discrimination entails, and how we can go about dismantling it.

Inspiration and New Perspectives: Reflections on My Interviews with Sri Lankan Women Activists

Taryn WilkieBy Taryn Wilkie

My internship with the International Centre for Ethnic Studies is now coming to an end, although I still have some work I need to complete for the project I have been working on this summer. My project involved interviewing women activists in Sri Lanka about their work and their experiences, and I need to finish transcribing and editing a few of the interviews before they can be posted, as they took place towards the end of my internship.

The interviews I conducted went well, despite occasionally encountering some technological challenges, and often interviewing at night so that the time was more convenient for those in Sri Lanka. Neither of these problems greatly interfered with the interviews, as most could be solved relatively easily. Increased internet usage due to people working from home when Sri Lanka went back into lockdown in mid-August did cause some difficulties when using Zoom, but this could often be solved by turning the camera off or scheduling interviews at non-peak times. The most important thing I learned from these difficulties was to be flexible and accept that technological issues happen to everyone.

Despite the inherent difficulties in remote interviews, I have currently conducted six and have a seventh scheduled for this week. While I would have liked to interview more individuals, not being present in Sri Lanka limited my ability to continually reach out to people to set up meetings. As well, only being able to contact people using email reduced my ability to establish a more significant connection which I believe would likely have led to more people agreeing to speak with me. However, since this internship was remote, I view my project as a success, and I am proud of what I have been able to accomplish while working for an organization on the other side of the world and in the middle of a pandemic.

I also found speaking with the women was very interesting, and I learned so much about Sri Lanka, activism, and the impact human rights work can have. Indeed, I was surprised by all that these women were willing to share with me, as I was somewhat of an outsider, being a Canadian law student. The women I interviewed worked in areas such as LGBTIQ rights, women’s issues, disability rights, peacebuilding, and the rights of minority communities. Their activism was expressed in a variety of ways, including demonstrations, writing, art, education, and training. All had been involved nearly their whole adult lives, and many had lived or worked in multiple locations within Sri Lanka and/or around the world. Their accomplishments inspire me, and I am now even more resolved to pursue a career in which I can help individuals, as the lives of these women demonstrated how the work of one person can make a difference in someone else’s life and how rewarding it can be. While they may have faced difficulties because of their gender, ethnicity, the war, or the political situation in Sri Lanka, none had ever let this get in their way, and I left each interview feeling motivated to work towards change.

Additionally, the women often raised ideas I had not previously considered, allowing me to gain a new perspective on different aspects of activism and human rights work. One woman discussed the changes in women’s activism over the course of her career. Shortly after she first became involved, women began to break away from other organizations and form their own because they did not feel respected or that women’s issues were taken seriously by the men. However, the younger generation, perhaps learning from what did and did not work in the past, has stopped creating women’s organizations, instead working with men on specific issues. I believe there is a tendency to view activism as historically significant moments which appear somewhat spontaneously and then disappear over time, yet this woman suggested there was greater continuity and connections between activists of different generations. Instead of isolated moments of activism, groups continually share ideas and strategies and learn from one another. I had not previously considered how interconnected different eras of activism can be, and how although issues may ebb and flow in salience, activism tends to be constant, and so I greatly appreciated hearing this woman’s perspective.

As well, another woman told me she no longer likes to be involved in organizations because she believes their hierarchal structure makes them a reflection of our patriarchal society. She explained that because she was working to achieve equality, she felt having power over others in the organization was a contradiction, and organizations only looked as they did because of the influence of men and the patriarchy. While she did not aim to change any organization’s structure, she preferred to consult, as this was a more equal role which better aligned with her values. This was another idea I had not previously considered, yet I understood why she felt the way she did. If someone is trying to change an aspect of society, perhaps it would be better if they rejected all or many of the structures and norms that aspect is responsible for creating.

Finally, I found asking certain questions could be particularly valuable and interesting and reveal more of that woman’s personality. Often I would ask the women I interviewed to tell me about a particularly memorable experience, and what they chose was usually a personal anecdote that gave me some insight into what they valued. I also found these stories to be some of the most meaningful and inspirational answers, as they typically demonstrated how small actions could make a big difference. Whether they were stories of many people coming together despite adversity to raise awareness of an important issue, or someone finding a way for a disabled child to have an education, I was in awe of these women’s perseverance and what they accomplished. I am also incredibly honoured and grateful that they chose to speak with me and share their experiences.

Overall, I really enjoyed my internship with the International Centre for Ethnic Studies and having the opportunity to meet (virtually) so many remarkable individuals. While I would have preferred to travel to Sri Lanka, the work I did still allowed me to develop some personal connections. I now have greater knowledge of what it means to be an activist, and I am certain this experience will affect my future work and worldview.

Neutral Conceptions of Disability Law

Isabel BaltzanBy Isabel Baltzan

As my internship with the the Instituto de Democracia y Derechos Humanos at the PUCP in Lima and the course on disability law comes to an end, I wanted to write out some final reflections.

A huge aspect of the course, beyond explaining how legal frameworks function with regard to disability, was determining what moral values underpin the laws in place. For example, we discussed the transition from a medical model of disability – wherein a disabled person is responsible for overcoming their disability through science and medicine (e.g. seeking to remedy a disability through consultation with a doctor, or medication, etc.) – to a social model of disability – wherein the world around a disabled person is what poses limitations to their existence (e.g. having stairs be more commonplace than ramps is a societal choice).

The underlying assumptions in these models are vastly different, as the medical model proposes an individualist approach to disability – and assumes it is always unwanted, a burden, a drawback. The social model, on the other hand, is much more collective – seeking solutions to barriers outside of just the disabled person and into society itself; this conception doesn’t assume that disability is inherently bad, or good; it just is, and we must work with it.

This neutral conception of disability is compelling, because it withholds judgement. Another topic we discussed in class at length was the many stereotypes and assumptions people have about disabilities – and I came to terms with my own. A super common one, for example, is the assumption that disabled people are pure, kind, angelic, harmless, vulnerable. This is a positive stereotype, but it is a stereotype nonetheless – one that can harm disabled people in different ways (see, for example, the discussion in the film Crip Camp surrounding sex, desire and sexual identity being forgotten when it comes to disabled people).

Having a neutral conception of disability is a good first step to conceiving of laws in a neutral way. Based on this idea, we had a later discussion in the class about the value society attributes to disabled lives, eugenics, and abortion. With Peru being an overwhelmingly Catholic country, its religious and legal heritage are intertwined, and abortion has been illegal since 1924 except for in cases where the mother’s life is in danger. There are criminal penalties to undergoing abortion for any other reason. There is a wrinkle in the law, however: the penalty for an illegal abortion is lower if the pregnancy resulted from a violent act outside of marriage, or non-consensual artificial insemination outside of marriage; and if the pregnancy is probable of resulting in the birth of a severely physically or mentally disabled child.

There is a ton to unpack within these provisions, but the only focus of our discussion was, ‘why do we punish people less for illegally aborting probably disabled foetuses, than when they abort probably non-disabled foetuses?’ The answer was tricky to defend, because the provision inheres that it is more reprehensible to abort a non-disabled foetus than a disabled one. Ergo, disabled lives are worth less than non-disabled lives. The only defense that came up was that disabled children can be a huge stress on their families, both emotionally and financially, and that many families are not ready to raise a disabled child – and it’s understandable that someone would want to go forth with abortion in that case. However, this defense quickly falls apart when it is considered in light of the entire set of provisions, which highly restrict when women can decide to abort at all, with the only valid excuse being ‘I am going to die if I continue with this pregnancy.’ The thorniness of the whole ordeal is because the law isn’t neutral – not with regard to abortion, nor the value of women’s choice, nor disability. So, we sought out solutions – neutral conceptions of law – that would remedy this issue.

As this discussion was unfolding I was fervently Googling away, trying to understand what the heck everyone was talking about when discussing therapeutic and eugenic abortions – I had only ever heard of abortion, tout court. And then it dawns on me – I’ve never heard of any of this because we don’t use any of these terms in Canada. Here, the law on abortion is …almost non-existent. R v. Morgentaler tells us that it’s an infringement on S. 7 to impose any. The choice is entirely left to people who get pregnant (and the health networks that service them, but that’s another issue). The law takes basically no position on abortion in Canada; it is as close to neutral as you can get.

I finally piped up and gave the example about Canada and its neutral conception of abortion, even if it maybe isn’t a realistic model for Peru to adopt. It’s a different country, with a vastly different culture and different values, and dropping an unwanted Canadian superiority complex into class with regard to abortion laws wasn’t my goal. I wanted to illustrate it as an example of a neutral conception of abortion, which in turn is also entirely neutral with regard to abortion of disabled foetuses. With a complete 180 of Peruvian abortion laws being a bit abstract, the professor suggested another non-discriminatory solution, which sounds radical on its face. She suggested that we stop giving health information about foetal disability to pregnant people – because if they don’t know this specific information, they don’t choose to abort based on this specific information. My knee-jerk reaction here was, ‘But people should know if they are going to have a disabled baby! Why wouldn’t just making the entire law neutral avoid the whole ‘aborting-disabled-babies’ thing?’ Well, what I hadn’t considered was that though we might think that we are not biased against disabled people, we still might be. Because, wanting to know if a child is disabled might be about preparing to welcome them into the world, but it might also be about deciding whether or not to abort them. That choice, in Canada for example, is the mother’s own, and there is absolutely value in that – I cannot stress that enough. Yet, we cannot discount the insidious power that our own social values have on this decision as well – because a country with a more neutral, or even positive, conception of disability wouldn’t condone the abortion of disabled foetuses only because they were disabled. Yet for now, in Canada, that definitely isn’t the case: if social norms dictate that disabled people are less worthy, nothing is stopping pregnant Canadians from aborting disabled foetuses because they subscribe to that stereotype.

My conclusion after mulling over this conversation for a few weeks isn’t stagnant. I’ve toyed with these ideas that make me a bit uncomfortable, and I’m not sure where I land. I think the best conclusion I can draw from this entire discussion is that, though some places boast neutral laws (e.g. my understanding of Canadian abortion laws), that doesn’t necessarily mean that they are morally neutral on ideas. Letting women choose is always the right decision in my opinion, but I had never considered the extent to which choice, as much as it feels like our own, is influenced by the world around us – and if the world around us devalues disabled lives, we are prone to devaluing them as well, and making choices that reinforce that societal stereotype.

Cheers,

Isabel

Travels Following Chisasibi

Timothy ParrBy Tim Parr

August 4th, 2021. My time in Chisasibi came to an end after a week. Mid-afternoon, I was back on a Dash 8-300 and bound for Val D’Or, Québec. I spent the night in Val D’Or for the purpose of meeting with a lawyer who works for the Cree Justice and Correctional Services Department and knows a lot about the Gladue process the next day.

Upon arrival, I took to the streets to explore. A particular scene struck me while I walked Val D’Or. Cadets, young officers in training, were handing out tickets to Indigenous people gathered in the parks, seemingly for loitering or vagrancy.

From the North

With so much talk of reconciliation, it is strange that future law enforcement agents should continue to be a part of such a relationship. Later, I mentioned this in passing to one of my supervisors who commented specifically on the practice of “Moonlighting,” wherein the police pick up an Indigenous person (most likely Cree), who is perhaps homeless or disturbing the peace, and brings them far outside the city by car and drops them off. In the winter, the consequences are dire. People freeze to death.

Travelling approximately four hours by car from Val D’Or to Chibougamau the scarcity of the land is readily observable. Unprepared, the land can be cruel. Communities are far from one another. Moonlighting is an example of how institutional racism manifests, how deeply it is entrenched and how problematic the Québec government’s reluctance to acknowledge systemic racism is, as well.

The lingering effects of colonialism were palpable in Val D’Or. The Cree are punished by the state of Québec even though they were dispossessed of their land.

Teepee by the Water

One solution to Moonlighting is to diversify the local police force. Increase the number of Cree officers. However, my supervisor explained the challenges to this. Certain physical requirements exist which prevent Crees from becoming police officers. The result is outsiders policing the communities, which presents its own challenges. Notable is the ability to understand cultural differences.

During my two weeks up North, I had the opportunity to visit three of the nine communities (Chisasibi, Mistissini and Oujé-Bougoumou) in Eeyou Istchee territory. The level of difference is subtle but significant. Chisasibi is pronounced differently in the Southern communities than it is up North. Dialects vary as do techniques for cooking and hunting. From my understanding, this seems to be influenced in part by the differences between coastal and in-land lifestyles; it would only be by spending more time in the communities that one could truly begin to appreciate and understand the complexities of this. The takeaway is that police officers, especially if they are outsiders, need to be trained to be cognizant of cultural difference or understand what scholars refer to as, cultural relativism.

Culture must be understood within its own localized setting or context. On its own terms. For instance, healthcare providers are increasingly obligated to undergo training which sensitizes them to these issues. Patients are gradually feeling the effects of this tailored approach. This gradually repairs the damage done to visible minority populations. These measures should extend to neutral agents of the justice system. The roots of prejudicial attitudes require exposure and redress.

The Strays of Mistissini

From Val D’Or, I left for Mistissini, passing through Chibougamau. I spent the remainder of my time North at the Lakeview Hotel, overlooking Lake Mistissini. I try not to romanticize the land, but Lake Mistissini is a treasure.

The Treasure, Lake Mistissini

It is the largest source (lake) of fresh water in Québec and is filled with Northern Pike and Walleye. It is a festive place. While I was at the hotel, the Cree celebrated Mistissini and engaged in portages and canoe rallies and other physical feats. Fishing competitions were going on. One young woman apparently won $20 000 for catching a pike.

The Lakeview Hotel

The Cree were incredibly hospitable. Very generous and kind. I made friends and was invited to have supper with a family twice. The food was delicious. I tried goose for the first time, a meal which holds an important place in Cree culture.

Stained Glass in the Cultural Centre in Oujé

It was good (perhaps comparable to turkey) and came with the caveat, “watch out for the pellets.” These are the quiet, fleeting moments that one remembers and cherishes.

Through the Trees and Towards Lake Opemisca

The Gladue process is confidential, so I will avoid going into detail on this subject. My weekdays in Mistissini were spent working out of the Justice building, conducting research and completing preparatory tasks. The Justice buildings, like several of the other buildings in the communities, are freshly renovated. Being in the buildings gave me the opportunity to understand how the Justice and Corrections Department operates (e.g., the people involved and their roles). I communicated with several of the employees to develop a healing plan for my client. This also involved contacting Cree Mental Health Services (Maanuuhiikuu).

Having spent six nights in Mistissini, my trip North was winding down. On my last day at the office, my supervisor asked me if I would participate in a podcast with him. I said, yes (my first podcast). The questions pertained to my experience at law school, in the North and my thoughts on Gladue. It should be available in the coming weeks.

Prior to boarding the Dash 8-3000 for Montreal from Chibougamau, I made a quick visit to Oujé-Bougoumou, also known as the place where people gather. I was encouraged to visit the Aanischaaukamikw Cree Cultural Institute.

The Aanischaaukamikw Cree Cultural Institute

At the institute, the law student in me was drawn to what appears to be the original James Bay and Northern Québec Agreement (JBNQA), signed in 1975 and displayed as one of the exhibits. During my first conversation with my supervisor, he pointed to the document’s importance for the Cree and noted that it is constitutionally protected.

The James Bay and Northern Québec Agreement (JBNQA)

Section 18 of the JBNQA is a particularly relevant section. It concerns the administration of justice and sets out inter alia that “[T]he Minister of Justice of Québec shall not effect any changes to the territorial limits of the “judicial district of Abitibi” without consulting the local authorities of Cree communities that would be affected by any such changes” (s 18.0.4) and the “Justice of the peace, preferably Crees, are appointed in order to deal with infractions to by-laws adopted by Cree local authorities and other offences contemplated in section 107 of the Indian Act. These appointments are subject to the approval of the interested Cree local authority” (s 18.0.9). S 18 has many purposes.

In one sense, s 18 is designed to ensure that Crees are involved in the administration of justice and that the administration of justice is consistent with the customs, usages and ways of life of the Cree.

Exhibits from the Institute

The JBNQA is a crucial source of legal rights for the Cree, but for some it may be interpreted or perceived as a form of compromise. The Crees are not wholly independent of the Québec and Canadian courts. Western norms encroach upon the Cree approach to justice. The foreseeable future has the Cree pursuing greater independence. Federal and provincial courts will do well to respect this direction, a vital aspect of meaningful reconciliation.

Exhibits from the Institute

My time in the North and working remotely for the Cree was rewarding and challenging. I am grateful to all the people who helped me over the summer and the Human Rights Internship Program for providing me with the opportunity. I hope I can take what I learnt over the summer and apply it in the future to help those in need. I would return North in a heartbeat.

The Shores of Lake Opemisca in Oujé

Miigwech,

Tim Parr

SECONDARY MATERIALS

Dell’Osso, Daniel. ”Cultural Sensitivity in Healthcare: The New Modern Day Medicine” (2016) Senior Thesis 58 at 6.

Human Rights and the Importance of Resources Beyond the Law

By Hannah MacLean Reaburn

The views expressed in this blog are my own.

This summer, I worked remotely with Avocats Sans Frontières Canada (ASFC) and with the Ministry of Justice in Namibia. The experience of working with two organizations was incredibly fulfilling, as I was able to practice my legal skills in a technical sense – through completing research projects, writing reports, and running legal analysis – but also because I was able to experience how the law operates in different contexts.

In a number of ways, the internships were very different, with ASFC being a non-governmental international cooperation organization and the Ministry of Justice being a government office; however, there were similarities in how both organizations approached the law as a tool to facilitate and access human rights. At both organizations, there was a recognition that the law was not the sole answer to the issues at stake and that, while the law is crucial as a resource and shapes the lived realities of many people, human rights work requires engaging with fields beyond the law.

At ASFC, I researched sexual and reproductive health rights for women in Mali, Burkina Faso, and Bénin. As a legal intern, my research focused on legal resources; however, the project itself is collaborative between ASFC, le Centre de Coopération Internationale en Santé et Développement, and SOCODEVI. Legal work alone is not enough to bring sexual and reproductive rights into reality: it also takes health, education, and transportation resources – among many others – for international human rights to become tangible. Though the law is a powerful instrument, it does not operate in a vacuum, and it takes multi-sector commitments to move human rights law from the abstract into reality.

At the Ministry of Justice, I reported directly to the Honourable Minister Yvonne Dausab. This internship experience emphasized for me the importance of journalism and publicly available information as means of facilitating human rights. Between working on projects pertaining to genocide reparations, vaccine access, and immigration, Minister Dausab took time to respond thoughtfully to questions posed by the public through newspaper opinion pieces and articles. To ensure meaningful and clear responses, I was assigned to research topics ranging from judicial independence to presidential discretion in appointing members of the National Assembly. Responding to these questions with such deep consideration demonstrated both the Minister’s respect for the thoughts of the public and recognition that people should be able to ask questions of their governments and have their concerns be taken seriously and responded to in an accessible and public manner.

I completed these internships after my first year of law school and after spending eight months focused on case law and legal reasoning, it was refreshing to see how much the law operates outside of itself. It has been with gratitude and humility that I’ve watched resources and ideas be exchanged between organizations with a variety of expertise in the shared pursuit of human rights.

Framing the Issue: Vulnerability or Structural Violence?

Ellen SpannagelBy Ellen Spannagel

In my role supporting Forum for Human Rights, a Central European legal non-governmental organization focusing on international human rights litigation and advocacy in Central Europe, my research centered on the rights to water and sanitation. Specifically, we were looking at how the state has failed to provide Roma communities with adequate drinking water and sanitation in Slovakia.

In doing research and writing on these issues, a reoccurring point of discussion was whether to frame issues of lack of access to water and sanitation as one of precarity/vulnerability, or one of structural violence, and which point of reference would be more strategic. Here, precarity refers to a “politically induced condition of vulnerability which exposes such populations to arbitrary state violence and to other forms of aggression enacted by non-state actors, without any protection,” as defined by Judith Butler. [1] Structural violence can be understood as an “avoidable impairment of fundamental human needs or, to put it in more general terms, the impairment of human life, which lowers the actual degree to which someone is able to meet their needs below that which would otherwise be possible.”[2] So much scholarly work has been written about this, but in my own words, the angle of precarity/vulnerability focuses on the actual group that has been made vulnerable and their characteristics, whereas structural violence focuses on the multiple dimensions of societal processes/relations resulting in social inequalities.

So which route do you choose? I had many discussions with colleagues about this. I noticed that many people preferred discussing legal issues facing marginalized groups in the context of structural violence, as it points to larger systemic roots in racism and other forms of discrimination and implies a greater accountability on behalf of all of society. It can help reveal the accountability of the state regardless of the complexity of domestic arrangements and can also help identify remedies that are of a collective and structural nature. However, while the preference for the lens of structural violence was true almost across the board, almost all the people I spoke to agreed that framing these issues in the context of vulnerability or precarity would be more effective. That is, regional and international bodies would respond more readily and positively to a framing of vulnerability as opposed to structural violence.

Carolina Yoko Furusho writes that human rights courts “abide by modes of relationality whereby certain kinds of vulnerability become more salient than others.”[3] Furusho adds, “applicants labelled as vulnerable are selectively recognised, engendering an uneven politics of inclusion which raises social justice and equality concerns.”[4] This can be seen in the decisions of the European Court of Human Rights, which has recognized time and time again that Roma constitute “vulnerable” populations, without giving as much weight to other social groups, such as the rights of trans people, migrants, and others.  The focus is on the status of the group as “vulnerable,” and less so on the multiple and intersecting forms of oppression giving rise to such situations.

However, Furusho also writes “legal practitioners do not simply create categories of ‘vulnerable groups’, but they engage in relational processes whereby vulnerability is produced and mobilised in between and across bodies.”[5]  This really hit home for me. By choosing to participate in the selective framing of “vulnerability,” playing to status quo understandings of major courts, are jurists reproducing the existing vulnerabilities that they themselves are seeking to combat?

Language is powerful, and legal practitioners and courts should think very carefully about how they can center the agency of those seeking justice, by placing the spotlight on actors perpetuating exclusion, rather than focusing on the vulnerability of certain groups and whether or not that are “vulnerable” enough.

[1] Judith Butler. Frames of War: When Is Life Grievable? London: Verso, 2009. p 25.

[2] J, Galtung. Violence, Peace, Peace Research. (1969) Journal of Peace Research, Vol. 6, No. 3. p. 167.

[3] Carolina Yoko Furusho, “The Selective Framing of ‘Vulnerability’ in the European and the Inter-American Human Rights Courts : A Socio-Legal Analysis of Juridical Praxis,” ethos.bl.uk, 2020, https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.815316.

[4] Ibid.

[5] Ibid.

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