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Some Thoughts On Gladue

July 28th, 2021. After working from home for the duration of the pandemic, I received last minute confirmation that I would be travelling up to the Cree community of Chisasibi by plane (specifically on a Dash 8-3000) in order to produce a Gladue report.

Prior to this, I conducted research into various topics, such as access to inmates during the pandemic for the purposes of producing reports as well as interviewing families in and out of isolation. To become a certified Gladue writer, I first had to undergo training and produce a mock report. This was the first stage in my work as an intern for the Department of Corrections and Services (Cree Nation Government).

First year law students are, presumptively, well acquainted with Gladue. In 1995, Jaimie Gladue, a young, 19-year-old Cree woman, fatally stabbed her boyfriend at a birthday celebration. Both Ms Gladue and her boyfriend were heavily intoxicated at the time of the tragedy and had a history of domestic abuse.

Initially, Ms Gladue was charged with second degree murder, but plead guilty to manslaughter (see Gladue Primer at 4). The sentencing judge took into consideration the aggravating factors and sentenced Ms Gladue to three years. However, the sentencing judge failed to take into consideration the accused’s Indigenous status.

This oversight provided the grounds for Ms Gladue’s appeal to the British Colombia (BC) Court of Appeal. The BC Court of Appeal dismissed the appeal, upholding the trial judge’s initial sentence. Ms Gladue and her lawyer appealed this decision to the Supreme Court of Canada (SCC) in 1999 on the grounds that s 718.2(e) of the Canadian Criminal Code was not considered by the sentencing judge which, therefore, amounted to an error in law.

The SCC ruled it an error not to grant Ms Gladue special consideration. In effect, the Gladue decision, and its ensuing framework, ensure that Indigenous offenders can exercise their rights under s 718.2(e), which stipulates that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” The purpose of this provision is to find alternatives to punitive forms of sentencing for Indigenous people, such as restorative and culturally appropriate practices. In part, this may consist of drug and alcohol treatment, anger management or counselling (Ibid at 3). S 718.2(e) is remedial in nature. It attempts to mitigate the overrepresentation of Indigenous peoples in federal and provincial prisons across Canada. Moreover, judges take notice of the systemic factors afflicting Indigenous people.

Yet despite the precedent set by Gladue and, the concept of stare decisis, Canadian Courts have either inconsistently applied the framework set by Gladue or ignored it altogether. In 2012, it was necessary for the SCC to reaffirm Gladue with Ipeelee. The Ipeelee Court acknowledged that “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness” (at para 73). Current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences and perspectives of Indigenous people or Indigenous communities (Ipeelee at para 74). Indigenous offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development (Ibid at para 73). The reasons for this are tied to Canada’s colonial history and its assimilatory practices. As a background/systemic factor, a Gladue report considers the history of the community where the individual lives.

Local Foxes

For instance, Chisasibi is the most populous of the communities located in Eeyou Istchee/Cree Territory in northern Quebec (see Morneau at 2). Chisasibi is on the eastern shore of James Bay. Like the other communities (e.g., Waswanipi, Oujé-Bougoumou or Mistissini), hydroelectric development and the signing of the James Bay Agreement resulted in the sedentarization of the Chisasibi Cree.  The Chisasibi Cree initially inhabited the village of Fort George and were nomadic. Fort George closed in 1980. Fearing the threat of floods caused by hydroelectric development (which there were—an estimated 10 000 caribou perished, and fish were contaminated by mercury), the Cree settled in the community of Chisasibi, also known as the great river.

The Great River Chisasibi

However, sedentarization created a gulf between generations. The young never knew the nomadic lifestyle of their elders (Ibid at 4). Sedentarization was an attempt to assimilate the Cree. Functions previously performed by families became the responsibility of non-Indigenous institutions, such as schools and churches (Ibid). Mothers lost their role as teachers and fathers no longer performed their traditional roles as providers for their family and as managers of the land’s resources (Ibid). This situation is not germane to the Cree. Kim Anderson explains that Mohawk women traditionally held authority in the political, social, economic and spiritual areas of society (at 85-86). Western norms centered on patriarchy and supremacy of the state, displaced the position of matriarchal power for the sake of a worldview consonant with its own.

Views by the River

Sedentarization led to intergenerational consequences for the Cree. Children were taken away from their parents and forced to attend residential schools where they were subjected to abuse, trauma and acculturation. “Social, political, economic, demographic and territorial upheavals have marked the history of the community of Chisasibi since the first contacts with Europeans” (Morneau at 6). A Gladue report takes these factors into consideration and further traces the history of the individual’s family. It is the Gladue writer’s task to tell the individual’s story, not in the writer’s words, but in the words of the individual, as much as possible.

The writer interviews the individual and objectively presents their story to the sentencing judge, so that the judge can better understand how it is that the individual arrived at their current station. That is, what in the individual’s life pushed them to commit the offense.

The Road Less Travelled

The Gladue process presents many challenges. Not only must the writer avoid any bias (either in favour or against the individual), but they must also recognize that the interview may cause the individual to remember traumatic events that they have pushed from their mind. Shortcomings to Gladue are tied to this latter point. Support for individuals following the interview with the writer appear to be lacking. Without proper support mechanisms, there is the risk of regression. Fortunately, community actors are working to fill this void.

Elsewhere, Marie Manikis has argued that the Gladue principles should be elevated to a principle of fundamental justice (at 1). All state agencies with capacity to affect the freedom interests of Indigenous people ought to be bound by the Gladue framework. This would meaningfully address its inconsistent application and bring greater attention to the overrepresentation of Indigenous peoples in federal and provincial prisons across the country.

Moored Boat

Come next week, I will be leaving Chisasibi to head south to Val D’Or. From Val D’Or I will travel to Mistissini to continue my work as a writer for the Department of Corrections and Services (Cree Nation Government). More to come.

Miigwech,

Tim

JURISPRUDENCE

R v Gladue, Supreme Court of Canada, 1 SCR 688 (1999).

R v Ipeelee, Supreme Court of Canada, 1 SCR 433 (2012).

 

SECONDARY MATERIALS

Community History of Chisasibi produced by Jerome Morneau for use in Gladue Reports, Ministry of Justice, Québec, 2015.

Manikis, Marie. Towards Accountability and Fairness for Aboriginal People: The Recognition of Gladue as a Principle of Fundamental Justice That Applies to Prosecutors (2016).

Tungasuvvingat Inuit (TI), Gladue Primer.

Equitable Access to a Quasi-Constitutionally Protected Facility

By Nicholas Pineau

My summer spent with the HIV Legal Network has radically deepened my understanding of harm reduction and human rights in Canada. While my first year of law school discussed the subject in various classes (such as in the context of physician-assisted suicide in the Carter case), I have enjoyed getting to learn more about supervised consumption sites (SCS) during my internship. SCS were quasi-constitutionally protected by the Supreme Court of Canada in their 2011 Insite decision. The Court held that such sites save lives, and the Minister of Health arbitrarily denying a Vancouver site the requisite exemption from the Controlled Drugs and Substances Act ran afoul of the right to life, liberty, and security of the person of individuals who access the site. While this decision deepened acceptance of harm reduction practices in Canada, there remains much work to be done to ensure equitable access to SCS.

One issue I have been working on during my internship is the practice of assisted injection, where individuals require assistance to properly inject substances at SCS. This practice is currently not allowed at SCS in Canada, creating a barrier to access for certain marginalized groups. Notably, it is often women (who often inject with intimate partners) and persons with disabilities who struggle to inject on their own. This limits access to a life-saving facility, and one is left to question whether such a restriction would run afoul of Section 7 of the Charter if a new decision à la Insite were to come out today.

One barrier erected by the Canadian government in its restriction on assisted injection is that it leaves the door open to numerous forms of liability for nurses in Canada if they were to assist SCS clients. A recent report I helped draft for the Network focused on some of these considerations—what are the potential criminal, civil, and professional body liabilities that could arise if a nurse were to assist with injection, and something were to go wrong?

This report allowed me to sharpen my legal research, reasoning, and writing skills. Because there is limited jurisprudence on the subject, I had to be creative in my utilization of available Canadian law. As an example, to answer the question of whether a nurse could be found guilty of manslaughter if a client were to die after being assisted with injection, I relied on the 2019 case R v Javanmardi, where an Ontario naturopathic doctor was not held liable for manslaughter for injecting an individual with a naturopathic substance. Justice Abella, writing the majority opinion, held that the act of injecting by a properly qualified professional was not dangerous enough in and of itself to warrant a finding of the requisite mens rea to convict someone of manslaughter. While the Javanmardi case is not a direct parallel to assisted injection at SCS, it offers an analogous reason to believe that the Court may see assisted injection as a life-saving harm reduction practice that increases equitable access to SCS, rather than a criminal act.

Another interesting consideration for the practice of assisted injection is how ‘safe supply’ impacts the potential liability nurses may face. As a result of the ‘dual pandemics’ of COVID-19 and opioid overdoses in Canada, the Canadian government authorized physician-prescribed opioids to limit the potential for overdose from the toxic street supply. The fact that such opioids are prescribed may limit the potential liability nurses may face for assisting with injection. The strength and non-toxicity of the substances are known before injecting, and if the alternative is that individuals inject on the street—where there is a risk of disease transmission from needle sharing or risk of arrest from police surveillance—then it becomes difficult to understand why assisted injection is restricted at SCS. A harm reduction perspective would contend that the possibility of assisted injection limits the potentially deleterious impact of leaving women and people with disabilities to inject on the street, with no one potentially available to intervene in the event of an overdose.

Overall, my summer at the HIV Legal Network has been illuminating, and I have loved seeing the issues we learn about in law school from a more nuanced and deeper perspective. While most of us would celebrate the Supreme Court of Canada’s acceptance of SCS in its 2011 decision, we never learn about what came after, and how such sites are not perfect solutions on their own. Political activism and advocacy remain necessary to ensure equitable access to government-sanctioned harm reduction services, and to fully realize the human rights of those living with or affected by HIV.

Lutter contre le racisme systémique dans le secteur public québécois

Par Attou Mamat

Avertissement de contenu : La publication qui suit contient des références à des violences meurtrières, au racisme et à la détresse psychologique.

Le 8 juin dernier, j’ai pu assister à une rencontre réunissant l’ensemble du personnel de la Commission des droits de la personne et des droits de la jeunesse. La Direction de la recherche de la Commission a présenté le Bilan de la mise en œuvre des recommandations du Rapport de la consultation sur le profilage racial et ses conséquences à plus de 150 employées, employés et membres. Le président de la Commission a ouvert la rencontre avec un mot sur deux événements, soit la découverte des dépouilles de 215 enfants autochtones sur le site d’un ancien pensionnat à Kamloops en Colombie-Britannique et l’attaque qui a tué quatre membres de la famille musulmane Afzal à London en Ontario. (Aussi, le Cabinet du procureur général du Nouveau-Brunswick venait d’annoncer qu’aucune accusation criminelle ne serait déposée contre le policier d’Edmunston qui a abattu Chantel Moore, une jeune femme autochtone, alors qu’elle était en situation de détresse psychologique.) Ces événements qui occupaient tous nos esprits nous rappelaient l’importance du travail qu’entreprend la Commission en matière de lutte contre le profilage racial et la discrimination systémique. 

Lorsque je pense à cet aspect du mandat de la Commission, je me rappelle les mots du président devant qui, la veille de la rencontre, j’ai prêté serment avant d’assumer mes fonctions de stagiaire. Le président m’a expliqué que la Commission est redevable à la population via l’Assemblée nationale, sans interférence du pouvoir exécutif. À mon sens, cette indépendance est particulièrement pertinente dans le contexte actuel, alors que la Commission se retrouve dans une position particulière où elle doit collaborer avec un gouvernement qui refuse de reconnaître l’existence du racisme systémique.

En valorisant l’expertise de chercheuses et chercheurs dans le domaine de l’antiracisme et le vécu de personnes racisées, la Commission semble avoir une longueur d’avance sur les ministères et organismes publics, qui peinent à mettre en œuvre ses recommandations. L’implantation de mécanismes de reddition de comptes pour évaluer cette mise en œuvre est d’ailleurs un défi auquel la Commission est confrontée. Sans indicateurs fiables, on ne peut évaluer les moyens pris dans le secteur public pour lutter contre le profilage racial et la discrimination systémique. Comment alors convaincre de cela un gouvernement qui nie le problème? Je suis d’avis que la solution passe par une multitude d’approches combinant les efforts d’organismes communautaires, de mouvements populaires, de groupes de pression, et de tant d’autres forces de changement social. 

Le rôle de la Commission dans tout ça? Soutenir ces divers acteurs et leurs membres dans la reconnaissance des droits et libertés fondamentaux pour toutes et tous. Je suis donc reconnaissante de pouvoir y faire mon stage cet été.

Peruvian Disability Rights and Civil Reform

Isabel BaltzanBy Isabel Baltzan

For my IHRIP experience, I’ve had the opportunity to join the Instituto de Democracia y Derechos Humanos at the PUCP in Lima — following along with a course on disability law and disability-related human rights issues in Peru, with work in an accompanying legal clinic. This is my first legal internship experience. I felt nervous and unprepared at first, and so, so far from any of my classmates over 6,000 km away.

I’ve been placed with a group of students, all in their last year of courses, and thrown into a course that expertly draws the historical and legal framework for rights granted (or not) to disabled people in the region. The course focuses on interesting and important ethical and moral debates that the law needs to answer for. I’ve quickly realized that though I’ve done a year of law school and a few years of living before that, I am in no way at the caliber of the people around me — not in legal knowledge (let alone in the Peruvian system), not in disability rights, nor in Spanish (never even mind legal jargon). So, I’ve spent a lot of time listening, filling in knowledge gaps on my own time, and mulling over the issues that are brought up.

I want to point out some thoughts I’ve had over the course of my internship, with it being my first dive into the world of human rights and disability. Granted, I never really know what’s going on — as an intern I expect to feel lost but doing it over email, WhatsApp and Zoom really adds to that feeling — so classes are always an interesting surprise, as are the cases we are presented. I’ve first learned that Peru has recently undergone an overhaul of its disability rights, and changes enacted in 2018 now allow people with disabilities to take advantage of their legal capacity — their ability to manifest a will, and move through the world much like everyone else does. This in turn has been accompanied by the phasing out of interdicción, a state in which a disabled person is deprived of their rights (under the guise of their best interest) and all legal decisions are handed off to a curator — with little to no oversight of how effective or respectful the process is. Nowadays, a system of apoyos (literally, ‘supports,’ but possibly better translated as advocates) and salvaguardias (safeguards) has replaced interdicción. The current system seeks to support disabled people in the exercise of their legal capacity, ideally while respecting and affirming their needs and wants. The new system also benefits from oversight granted by safeguards. A fantastic reform.

Now, of course, just because we say things are different doesn’t mean they actually are any different. Calling the same thing by another name is not progress unless actual change occurs. Progressive law (more progressive than lots of places — cough, California, cough, #FreeBritney), as amazing as it is when enacted, needs to be followed for anyone to reap its benefits. One issue that came up often was disabled people petitioning for rights at the court and the judge requiring them to get an apoyo to be granted what they might be asking — even though the disabled person seems completely able to exercise their legal capacity. Why? Perhaps the judges are used to working through curators with the disabled population. Perhaps, discrimination and stereotyping prevail. Possibly, a misunderstanding that something was supposed to change after 2018.

One case in particular comes to mind as an example of the darker side of reform. It had been moving through the courts for quite some time, and involved an older woman who had been under a curator — someone close to her — through interdicción, for many years. Unfortunately, the curator had passed and the woman was left in a sort of vacuum — the interdicción system had been overhauled, so she wouldn’t get another curator, and would need an apoyo if any legal issues came up, which eventually they did. Seems easy. Except, in order to begin the process of naming an apoyo for herself, she needed some documents from an office that wouldn’t give them to her because she needed legal representation through a curator (deceased and irreplaceable) or an apoyo (yes, a total real-life, awful catch-22). Funny enough, this situation is analogous to one described by Lon Fuller in his Eight Consequences of Failure — “(6) rules that require conduct beyond the powers of the affected party.” The solution was for the legal clinic to request a procedural curator for the woman just until she got an apoyo — but in the meantime, this woman has suffered serious violations to her rights to access to justice and to defense, leaving her effectively in a state of utter vulnerability. This can’t be the progress sought out by the reform, but it’s the reality of the situation.

The whole affair underscores for me how important it is to consider the impact of sweeping reforms that seek to improve a system — to consider who exactly is making a sacrifice for the benefit of all. It really highlights how important it is for the systems in place to move with reforms, instead of just letting reforms pass through them. This isn’t to say that my entire experience at the IDEHPUCP has been disheartening, though it’s unrealistic to assume it would all be joy and glory. The clinic does incredibly important work to educate students and the public on disability-related topics, and it is fulfilling beyond belief to be a small part of meaningful and impactful changes in people’s lives through the clinic. I’ll write more soon about the experiences of clinic work and some interesting debates we’ve had throughout the course.

Cheers,

Isabel

Navigating the Boundaries of Remote Work at Avocats Sans Frontières

Johanna ClineBy Johanna Cline

With only two weeks left at my placement at Avocats Sans Frontières Canada (ASFC), I am incredibly grateful to have worked with such a supportive and invested team, albeit remotely, over the past three months.

Like many fellow interns, I worked from the comfort of home this summer. Although working for a Quebec organization from Montreal did not entail different time zones, like those faced by some of my McGill colleagues this summer, the experience still required making up for a lack of in person interactions. Successful communication throughout the day meant being active on Slack and reaching out for a quick video call when questions arose. My colleagues established an open environment where I felt comfortable getting in touch with any queries. Outside of clarifications related to my mandates, my colleagues were generous enough to answer questions about their respective paths in the field of law, which provided me with valuable insight into life post-McGill.

The legal team also hosted weekly “café d’équipes” where new employees, such as myself, were invited to share not only our current projects at ASFC, but also our star signs and weekend plans. The casual atmosphere at these brief meetings set a comfortable tone and made up for the water-cooler chat I missed out on due to the pandemic.

During my internship, my supervisor Claire thoughtfully chose mandates centered around my interests, particularly in health law and discrimination. I have completed projects on jurisprudence related to sexual and reproductive health as well as intersectionality. I have also had the chance to research topics I might not have otherwise studied in law school, such as the legal concept of the querulous litigant.

Not only has my internship been an opportunity to fine-tune my legal research skills, it’s been an excellent chance to brush up on my French. Based in Quebec, ASFC operates primarily in French and Spanish. Reading, writing and conversing entirely in French has certainly boosted my confidence in my language capacities.

My internship at ASFC has provided me with everything I could have hoped for this summer: engaging work, friendly coworkers who doubled as mentors, and countless opportunities to branch out my pre-existing legal knowledge. While I am eager to spend my last couple weeks of summer vacation with family in New Brunswick, I will miss being engaged in the interesting projects and brilliant environment my colleagues have established at ASFC. I am very grateful to have been a part of the team if only for three months.

Battered Woman Syndrome and Plea Bargains: Gaps in Defending Vulnerable Women

Kassandra NeranjanCo-Authored by Noa Mendelsohn Aviv (Canadian Civil Liberties Association Equality Director) and Kassandra Neranjan; Originally Published: https://ccla.org/blog-ccla-2/

Helen Naslund, a 56 year old grandmother, was sentenced to 18 years in jail for manslaughter after killing her abusive husband while he was sleeping, and then hiding his body. This exceedingly long sentence is 16 years longer than the average sentence imposed for manslaughter by a woman of a male partner,  according to a 2002 report. Helen’s sentence was decided within a criminal justice system that imposes  mandatory sentences (and deters self-defence claims). And it seems to take minimal account of the trauma, threats, and very real dangers faced by women who live with intimate partner violence (also known as “battered women’s syndrome”).

These are the facts of Helen’s case, accepted by both her lawyer and the government lawyer who prosecuted her: Helen’s husband, Miles, had for over 27 years, been physically violent with her, and made comments to her that made her fear for her safety while he was heavily intoxicated and wielding firearms. Helen was depressed for years and made a number of suicide attempts, but did not feel she could leave the marriage due to the “history of abuse, concern for her children, depression, and learned helplessness.” On the weekend before she shot him, Miles became angry with Helen over a broken tractor, ordered her around while “handling his firearm,” and hurled wrenches at her. On the day she shot him, he threatened to make her “pay dearly,” and his threatening behaviour increased throughout that day. That night, Helen killed Miles while he slept. In the morning, she hid his body in a pond where it remained for six years while she misled police as to his whereabouts.

These too are facts: in Canada, on average every 6 days, a woman is killed by her intimate partner. Women with disabilities, Indigenous women, and queer women are subjected to increased rates of intimate partner violence.

Courts have for decades recognized battered women’s syndrome (BWS) as a subset of post-traumatic stress disorder. Some courts have explained women’s experience of the cycle of violence in terms of their fear, shame, terror and victimization that led them to pull the trigger. Courts have also recognized non-stereotypical, rational explanations as to why a woman might stay in an abusive relationship – to protect her children from abuse, limited social and financial support, and the lack of a guarantee that the violence would end if she left – and how her use of deadly force against her abuser, even outside the heat of a conflict, may have been reasonable to preserve her own life.

BWS has been used to support a claim of self-defense for women who have killed their abusers in “quiet” moments, such as when the abusive spouse was sleeping or not actively going after her. Yet to claim this defense in court, one has to go to trial and risk conviction. If convicted, currently, there is a mandatory penalty: life in jail without parole for 25 or 10 years for first or second degree murder, respectively.

Helen Naslund was charged with first degree murder. Faced with this terrifying risk, she pled guilty to manslaughter. Other women who have done the same then raised BWS as a factor that should lessen their sentence. However in Helen’s case, the plea bargain required her to also agree to the 18 year sentence. The prosecutor sought to justify this harsh penalty by delineating certain “aggravating factors” – factors that bear a painful resemblance to Helen’s own experience over 27 years of  abuse. First, he argued, “…this offence involved an intimate partner and position of trust. Second, it involved the use of a firearm. The reasonable foreseeability of harm with a firearm involved is obviously greater. Number three, this occurred in the victim’s own home, a place where he’s entitled to feel safe.” The irony – and injustice – of these arguments was apparently lost on the prosecution.

The prosecutor did also set out other “aggravating factors” with respect to how Helen had disposed of Miles’ body, and her efforts to deceive police about what she had done, however none of these justified the lengthy sentence imposed.

BWS is a legally recognized doctrine that should be available to women who, after years of abuse, are highly attuned to escalating violence and threats, and may in a critical moment act to preserve their own life, even if outside a heated exchange. Statistics about the number of women killed by their intimate partners crystallize the very real threat faced by women like Helen.

The prosecutor had the authority all along to lower the charges against Helen to manslaughter, or to strike a different, more humane bargain that recognized the dangers she had faced.

And the sentencing judge had the power, in extraordinary circumstances like these, to override the plea bargain’s terms and reduce the sentence. Instead, he offered her a word of sympathy stating: “Although I have empathy for … you, this requires a stern sentence…Deterrence is the main principle of sentencing that has to be looked at, deterrence and denunciation …”. Then he sentenced her to 18 years in prison.

Battered women’s syndrome allows us to question the goals of the criminal justice system when faced with the violence women are subjected to in society. Ultimately, courts and government should be spending more time on deterring this violence; on building a society in which women are deemed equal and can exist without threats to their security.

Helen’s case is one damning example of the dangers of mandatory minimum sentences.

Perhaps what needs to be denounced is not solely Helen’s act, but the systems of policing, social security, and gender norms that allowed her subjugation to violence for 27 years going unquestioned.

Perhaps what needs to be denounced is a justice system that could allow for a plea bargain that imprisons a survivor of abuse to 18 years.

Perhaps what needs to be denounced is a justice system that appears inadequate to represent the complex lived experiences of people before the law.

Listening and Learning at the Indigenous Law Centre

By Bryce Lansdell

This summer I have been working remotely as an intern at the Indigenous Law Centre (ILC), based out of the University of Saskatchewan. My principal roles have been to work as a teaching assistant for the ILC’s summer program and to help with curriculum development for a certificate in Indigenous and Aboriginal law, the latter of which will be the subject of another blog post. The ILC summer program is offered to Indigenous law students who will be entering their first year of studies at a Canadian law school in September and allows these students to develop relationships with other future Indigenous legal professionals, gather valuable experience in developing the skills and habits necessary for law school, and lower the number of mandatory courses they will need to take in their first year. Students take two accredited courses: a class in Property law and a class called Kwayeskastasowin—a Cree phrase which roughly translates to “setting things right”—which serves as an introduction to Indigenous laws, worldviews, and how these laws are being revitalized in a colonial context.

Given that I have only completed one year of my law degree and that my studies have only been online, I was initially nervous that my lack of experience would make it difficult to work as a teaching assistant. Instead, I found that being able to clearly remember my first assignments, exams, and what it was like to develop studying techniques in law allowed me to give detailed feedback to students. I also found that having done my entire first year online, in which we learned to network and develop friendships exclusively virtually, gave me a helpful perspective in seeking to create contexts where students could connect both with the teaching assistants and with each other.

While I have enjoyed regularly meeting with students to help them prepare for assignments, midterms, and exams, one of the most meaningful experiences for me this summer started in the last week in May. I was in a morning call on Zoom with a student who was visibly distressed, and when I asked what was going on, she shared that many students in the program were upset about the “news in Kamloops.” This was the first I had heard about what turned into multiple findings of missing and unmarked graves across Canada this summer. I was uncertain of what to say to the student when presented with the news that 215 unmarked graves had been found at a residential school. Not being overly good at reacting well to the unexpected on the spot, I tried to express how horrible the situation was without much success before we continued our discussion of course material. However, I left the meeting with my heart feeling quite heavy. Although I was aware of the Truth and Reconciliation Commission’s Calls to Action regarding missing and unmarked graves at residential schools, hearing this news directly from an Indigenous student made the pain and suffering from residential schools feel far more real to me than it had been previously.[1]

In the coming week for both courses, we were sure to check in with how students were doing and made space for students to share with the class how they were processing the news. Though what was shared is confidential, I found it heartbreaking to hear about how personal and close to home the harm of residential schools is for so many of the students, their families, and their communities. Later, in a meeting with ILC Director Marilyn Poitras, Marilyn shared frustration and dismay that Indigenous people’s testimonies about residential schools were only being reckoned with now that bodies have been identified, despite there having long been various accounts of unmarked graves and higher than reported death rates at residential schools in Indigenous communities, despite the Truth and Reconciliation Commission’s 2015 report on Missing Children and Unmarked Burials,[2] and despite reports even in the early 20th Century by Dr. Peter Henderson Bryce about the appalling conditions and high death rate in residential schools which were ignored by the government.[3]

Although hearing of the grief and frustration of the students was heartbreaking, I also felt very honoured and privileged to be in the classroom with them. While I am only in the early stages of learning what role I can play in reconciliation, I believe one thing I can personally do is to spend more time listening to and learning from the stories and experiences of Indigenous people. In turn, I am very grateful for the opportunity that my internship with the ILC has afforded me to do so this summer.

The first day of the ILC summer program held virtually.

[1] See Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: TRC, 2015) at Calls to Action 71-76 <http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf>.

[2] See Truth and Reconciliation Commission, Missing Children and Unmarked Burials in Canada’s Residential Schools: The Final report of the Truth and Reconciliation Commission of Canada, vol 4 (Montreal: McGill-Queen’s University Press, 2015) <http://www.trc.ca/assets/pdf/Volume_4_Missing_Children_English_Web.pdf>.

[3] See P.H. Bryce, The Story of a National Crime: An Appeal for Justice to the Indians of Canada (Ottawa: James Hope & Sons, 1922).

Human Rights to Water and Sanitation: Finding Common Ground on the Scope of Obligations

By: Ellen Spannagel

In my work as an intern with Forum for Human Rights, an organization that focuses on international human rights litigation and advocacy and Central Europe, I have been helping with a submission centered on the human rights to water and sanitation. The rights to safe drinking water and sanitation are derived from the right to an adequate standard of living, a right that is enshrined in several human rights instruments that are ratified by Canada, including the ICESCR, CEDAW, CRPD, and the CRC.

In my research, I found that violations of the rights to safe drinking water and sanitation are typically related to violations of other rights, including the right to health (highest attainable standard of health), housing (also part of the right to an adequate standard of living), and the principle of non-discrimination, among others. This bolsters the notion that human rights are interdependent and interrelated: these are rights that can only be upheld so long as the others are upheld.

This theme of interdependence is prominent within United Nations (UN) treaty bodies and throughout the comments of UN Special Rapporteurs. For example, the former UN Special Rapporteur on the Right to Housing, Leilani Farha, has specified that housing that does not provide adequate water and sanitation can give rise to a situation of homelessness, a fundamental breach of the right to housing. The interrelatedness of these rights is also prominent among regional courts. For example, in Öneryildiz v. Turkey, a community was devasted by the explosion of a landfill, and the European Court of Human Rights held that waste disposal, and its impacts on health, were intricately related to the right to life and that there is “positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction.”

While this makes it easy to link rights such as the human rights to water and sanitation to the violations of other rights, it sometimes makes it difficult to identify the specific obligations states have in fulfilling these rights at a normative level. For example, in the recent judgement Hudorovic and Others v. Slovenia, which considered whether Slovenia violated obligations to provide the Roma applicants with adequate access to drinking water and sanitation, the European Court of Human Rights acknowledged that it is “necessary to take into account the vulnerable and disadvantaged position of the Roma population”  in the context of several rights, such as the right to life. However, the court ultimately ruled that that the State had fulfilled their positive obligations to provide access to utilities to the applicants, despite evidence of existing lack of access to adequate water and sanitation. This contradicts the comments made by the former UN Special Rapporteur on the Right to Housing and raises questions about the scope of obligations where a multiplicity of interrelated rights are at play. Questions about the level of access (whether water must be provided directly into the home) and affordability (how much it should cost to remain connected to a public water supply) remain unanswered and highlight whether human rights as they currently exist are best positioned to tackle these issues.

In Europe, water-related issues (access to safe drinking water, access to sewage) and waste issues (uncontrolled dumpsites and landfills) are common situations of environmental racism that particularly affect Roma communities.  When I reflect on the state of affairs where I live, I am immediately reminded of the long-term drinking water advisories in First Nations communities, and its relationship to other issues such as adequate housing and food security.

The human rights to water and sanitation are especially important in the context of the climate crisis. While it is important that international and regional bodies recognize the interdependence of these rights to other rights such as the right to housing, without stricter judicial review, and a more specific framework establishing how these rights should play out on the ground, States will be absolved of responsibilities in ensuring these rights for communities that are structurally disadvantaged. Finding a common ground on the scope of obligations for these various interrelated rights, particularly in situations of persistent structural inequality, will be integral moving forward.

Working Remotely for the Yukon Human Rights Commission: the Saga Continues

Mathew YaworskiBy Mathew Yaworski

Unfortunately, my time with the Yukon Human Rights Commission (YHRC) is coming to an end.  My placement ends after July 29, 2021, leaving me just enough time to take care of my strategic appointments (doctor, dentist, banker, replacement OHIP card) and relocating to Montreal before classes start.  All of this notwithstanding my second blog post.

I need to thank the staff at the YHRC. My immediate supervisor and Acting Counsel was generous with his time, and patience, and always willing to engage with me about my problems or concerns.  Everyone was friendly and engaging. I appreciated the invitation to the team’s weekly Coffee Time get together, a time to chat, relax, and recharge. Even when one of the coffee towers tipped over spilling much of that black gold on the floor, people in the room (or at least through Zoom) had good spirits.

Coffee Time was insightful.  I spent some time in the Northwest Territories and knew a few things about bears, but it was nice to renew my understanding and appreciation of the different types of bear sprays.  I was envious to learn about all the opportunities for outdoor activities in the territory.  I was envious to learn of how my colleagues used all of their free time, especially when I had to rationalize how “free time” was a luxury that I really could not afford as a full time student.

My research continued and I wrote legal opinions relating to my findings.  Things were going well until I researched the issue of vicarious liability.  Some statutes contain provision(s) that allow a respondent, usually an employer in the employment context, to “escape” liability if they can demonstrate that they did not condone the inappropriate behaviour or reasonable steps to address it.  Why is that? If the purpose of human rights legislation is remedial, should it not be that the employer and the perpetrator be subject to remedial (not punitive) action?

Between flash backs to my first year Torts and second year Employment Law classes, I tried to find the answer, especially why this type of language was limited to a few statutes across jurisdictions and not universal?

I don’t want to sound cocky, but I think I’m pretty good at legal research.  I did a lot of legal research working in labour relations, with Quicklaw, Westlaw, or CanLii.  I’ve had more practice and refined my skills since coming to McGill.  I’m competitive and don’t like to lose or admit defeat.  But this was a tricky topic. Eventually, I abandoned looking at case law and tried to access the Hansard.  Unlike Westlaw or Quicklaw which provides a universal interface, each Hansard interface is different (ie, the Government of Canada Hansard is different from the Province of Manitoba’s Hansard).

Unfortunately, I could not find what I was looking for (some of my research was very historical) but happened to come across my former high school classmate, now counsel for a trade union in Vaughan. Congratulations Steve. He appeared before a Province of Ontario Legislative Committee and made a presentation on behalf of his employer. Ultimately, I wrote my opinion based on what I was able to find, in the time that I had to do it.  If anyone from Quicklaw or Westlaw is reading this, you should look at downloading Hansard and making it more user friendly to search.  Expand your business and take pity on me.

My last two assignments concern the scope of individual and organizational liability, and the enforcement of settlements.  One takeaway from all the research I’ve done during this placement is to be wary of going down the rabbit hole.  Granted, it is easy if your research topic is narrow or limited, but in instances where you find a lot of jurisprudence, you need to be able focus on what is sufficient to answer or address your question. There were times when I found my digging for more and more supporting cases, rather than evaluating the applicability of the ones I had already found (and cited).  One sage piece of advice from my Supervisor, echoed by Professor Adamski in my Integrations and Advocacy classes was time.  In the future, I will likely have more restrictive deadlines and must do the best with the time I have.

Apart from research, I have learned, and appreciated, that the Commission plays an important  gatekeeper role in the Yukon’s human rights system and its complaint process.  There are many steps and considerations that are required to be exhausted before a complaint is adjudicated.  As a party, usually a respondent, to human rights complaints from my labour relations days, I did not appreciate the nuances of the system, mainly the strengths or weaknesses of the complaint against my client.  Many complainants are not represented by legal counsel.  While a complainant many feel discriminated against and inherently feel they deserve a remedy to correct the injustice they suffered, they are ignorant of the process, legal tests, standards of evidence, and the principle that he who alleges must prove.  All things being equal, a respondent is not necessarily required to disprove the allegations against them.   

As I reflect on my placement, I strikes me that I actually had the opportunity to do work that impacts a real complaint. I cannot divulge details, but my research may influence whether their complaint proceeds to a hearing on its merits or is dismissed.   I wonder: would the complainant accept a reasonable settlement?  This would almost certainly be without an admission of guilt or liability. But is this something the complainant would accept? The settlement offer could reflect the weaknesses of the respondent’s case and be a quick fix –  an avenue to avoid a negative decision and perhaps larger financial liability. Then again, the respondent might have a very strong case and their settlement offer is strategy to avoid the expense of a hearing.  What about the complainant? If their case is weak, would they accept what the respondent offers, even though it would likely be less than what they were seeking?  Are they so steadfast or dogmatic in their belief that they were wronged that they will accept nothing less than their day in court with a public decision that memorializes their righteousness? I have been on both sides of fence in the past; I worked with management to settle where we were weak or to avoid the nuisance of a hearing.  I have also reluctantly gone through a hearing (including travel, the logistics of witness prep, motions and objections, and the scrutiny of document production) when I knew we were in a strong position but the complainant was adamant that they were in the right and would accept nothing less than a public decision echoing their divinity and demonizing my client.

Here is my confession. With this actual complaint, I would like to see a decision. I think both sides have a credible argument. My attitude is not gospel and how much weight, or doubt, you want to give my assessment is up to you. Unfortunately, the world of litigation is not an academic exercise. It is expensive, time consuming, and an emotional investment since someone wins and someone loses. My research had mixed results and I do not know what the outcome would be.

So here we are, back at the beginning of my first entry. I do not know the answer.

The saga continues.

 

 

 

 

 

 

 

The Procedure Underpinning Human Rights at the Commission

Jeremy Wiener By Jeremy Wiener

This summer, I am working at the Commission des droits de la personne et des droits de la jeunesse (CDPDJ). Every Canadian province has a human rights commission or tribunal, and the CDPDJ is Quebec’s. The CDPDJ’s principal task is promoting the principles enshrined in Quebec’s Charter of Human Rights and Freedoms (which has quasi-constitutional status). To promote the Charter, the CDPDJ makes recommendations to the Quebec government regarding statutory law’s conformity  with the Charter, promotes scholarly research and publications on issues related to the Charter, carries out investigations of discrimination, and even represents complainants before the Tribunal des droits de la personne by drafting factums and pleading before judges.

My work has entailed researching questions of law to help the CDPDJ represent those who allege that they have been discriminated against. I do so, however, not only by researching anti-discrimination law. I have also analyzed procedural law, and the law relating to business association and civil evidence – law taught in McGill law courses that I have not taken yet! This has reminded me that protecting people’s constitutional rights requires much more legal knowledge than what only relates to constitutional law.

Like many of my friends and colleagues, I am working remotely this summer due to Covid-19. This has, naturally, and not surprisingly, proved challenging. But it has also presented unique opportunities. For example, if I was working at the Commission’s office, I would not be able to take a two-minute break from working to play with my dog as I do now!

All jokes aside, my colleagues at the Commission have gone to great lengths to make working remotely feel like we are working inter-connectedly, and I very much appreciate it! My internship thus far has proved incredibly insightful and formative, and I thank all those at McGill, IHRIP, and at the Commission who have made this opportunity possible.

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