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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

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.

Some Thoughts On Gladue

Timothy ParrBy Tim Parr

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 one of 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, Professor 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.

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.

 

 

 

 

 

 

 

Human Rights – A Resilient Cause

Andrea SalgueroBy Andrea Salguero

As states around the world have moved to adopt the strictest of public health measures in the face of an unprecedented global health crisis it is difficult to imagine any sector of society that has remained untouched by the effects of this global pandemic. In addition to the millions of people that continue to face serious risks to their health, still more remain vulnerable to the economic repercussions of the crisis as industries struggle to regain stability. In the midst of these great global changes, at the outset of my internship I was apprehensive about how human rights work in Canada and around the world would be affected by public health restrictions. However, my experience this summer at the Raoul Wallenberg Human Rights Centre (RWCHR) has given me confidence that the field of human rights, and advocacy work in particular, possesses a resiliency that will assist it to emerge from this period stronger than ever.

This summer, the RWCHR was involved in several human rights initiatives including sustained advocacy for political prisoners in different parts of the world, promoting greater accountability for crimes against humanity in Venezuela and promoting freedom of the press. RWCHR staff and interns worked on these issues in collaboration with partners and collaborators in other countries, and were able to continue this work throughout the height of the pandemic despite serious lockdowns and restrictions on travel. While in person meetings were no longer possible past March 2020, the existing infrastructure for communication between partners was utilized to shift educational activities and the coordination of advocacy strategies to online platforms. It was gratifying to see that the work of drafting proposals, coordinating events, hosting webinars and panel discussions, and even developing sophisticated advocacy projects was able to continue remotely, and may even have intensified through the weeks and months of lock down.

The ability to shift in the face of crisis, utilizing existing international networks, points to a wider resiliency within the field of human rights. This resiliency has perhaps developed within a field accustomed to facing challenges in day to day work. Grassroots human rights advocates often face personal danger from state or civil groups in documenting human rights violations, and advocates in more open societies still face barriers in the form of states’ unwillingness to act on particular issues or in public apathy to particular human rights issues. While the pandemic has presented new challenges for human rights advocates and exacerbated other existing patterns of human rights abuses, it appears the energy and creativity of those dedicated to the cause of human rights will continue to move the field forward even in the most difficult moments. At a time where human rights matter more than ever, this direction offers much hope for the future.

Réalisations post-stage

Sandrine RoyerPar Sandrine Royer

Ces derniers jours ont été teintées de réflexions au sujet du stage complété cet été auprès de l’IDEHPUCP. L’horaire incroyablement occupé de mes avant-dernières semaines au sein de l’équipe m’ont fait réaliser à quel point mes collègues étaient motivés et impliqués dans les recherches qu’ils entreprennent. L’humain est au cœur de leurs préoccupations et influence chaque décision. En plus d’être incroyablement compétents dans leurs démarches et dans leur application des principes de droits, ils ont un dévouement porté par une bienveillance envers leurs semblables.

Cela est incroyablement inspirant pour une jeune apprentie du domaine légal comme moi. En effet, je dois avouer qu’au cours de ma première année, les rencontres avec des avocats de grands cabinets et l’attrait d’un salaire rassurant me tentaient relativement. Cependant, à travailler conjointement avec les chercheurs de mon équipe cet été, j’ai pu confirmer une chose quant à mes objectifs de carrière : je souhaite travailler pour les humains et aussi près des humains que possible. Ce que je souhaite communiquer ici est simplement que j’ai envie de faire du bien-être de mes semblables une priorité tout au long de mon cheminement en droit. C’est la raison principale qui m’a poussée à m’inscrire dans ce programme, et ce stage a confirmé ce but.

Je souhaite offrir à mes semblables les outils dont ils ont besoin pour se sentir appuyés, tout en m’assurant de favoriser une relation d’écoute attentive et d’empathie. De cette façon, j’ose espérer que le droit pourra m’aider à défendre les intérêts de mes concitoyens, tout en complémentant l’étendue du domaine légale avec d’autres outils sociaux et communautaires pour assurer une approche adaptée et constructive.

Ainsi, je suis éternellement reconnaissante de l’accueil et de l’intégration que l’IDEHPUCP m’a offerts, et je crois que les apprentissages que j’y ai fait, même à distance, me suivront pour de nombreuses années.

On Pandemics, and Changing Course

Kayla Maria RollandBy Kayla Maria Rolland

“How would you respond to unforeseen challenges during your internship?”

On my application I submitted to the IHRIP program in November 2019, I wrote about the possibility of culture shock, compassion fatigue, issues posed by my lack of travel experience, and other challenges I imagined I could face through the program. As with everyone else, the idea that a pandemic would ground global travel just four short months later was beyond comprehension.

While undoubtedly disappointed that I would no longer be able to visit the beautiful state of Colorado to spend the summer with the One Earth Future Foundation, I had a really wonderful opportunity to spend the summer with the McGill Centre for Human Rights and Legal Pluralism, working on the Disability and Climate Action Research Programme (DICARP).

The opportunity meant shifting direction from a summer in another country, to a summer working remotely in my childhood home, and from human rights topics related to peace-building to disability rights and climate justice.

Pink stone on sidewalk, painted to read "in it together."

A note from a neighbour, found on one of my daily walks.

On a professional level, the shift has meant exploring topics and human rights issues that were relatively new to me. I am enjoying learning about the intersection between climate justice and disability rights, how global climate negotiations occur, and how relevant stakeholders make their voices heard. As part of my role, I am really happy to have gained greater knowledge of how to make web content and events more universally accessible, and it is a skill I will take with me moving forward.

On a personal level, this shift has meant riding out this crazy time with the people that I care about most. It is not the summer I imagined, but I now couldn’t imagine being anywhere else.

Not all challenges are foreseeable four months in advance, but I am still very happy with the course I have taken.

Tensions between the inherent right to self governance and laws around jurisdiction

By: Larissa Parker

In July, the Minister of Justice, David Lametti, came to visit Akwesasne. He met with the Chiefs of the community and the Justice Department to learn about the most important issues facing the community.

Minister Lametti, Grand Chief, and 2 other Chiefs in Akwesasne

Self-governance quickly became an important topic. Although the community has its own government, Justice Department, and Court, they are constantly confronted with jurisdiction issues. In particular, the Akwesasne Mohawk Court is currently limited to enforcing the 32 community-developed civil laws, but has no authority regarding laws that are provincial or federal in nature. For example, anything pertaining to criminal law must be dealt with in a federal court. Similarly, most family law issues, pertaining to matrimonial property or custody-related disputes are provincial, and thus, must be taken up in a provincial court in Ontario or Quebec.

According to a Chief in the community, Connie Lazore, this is highly problematic. Restrictions around jurisdiction interfere not only with the ability to govern themselves, but also counteract the inherent right they have to govern themselves, as per section 35 of the Constitution Act, 1982. The Chief stated, “we should be allowed to govern our people the way we want to, not the way the provinces want us to”. Instead, she argued, “We fail our own people when we can’t serve them in our core”.

She offered an example to solidify her point. If there is a victim of domestic violence living on the Quebec side of the community, wanting to receive a protection order, they cannot go to Akwesasne court; instead, they must drive 4 hours there-and-back to Valleyfield (which is the nearest Quebec court). Next, because of the nature of the order, it tends to require an endorsement from a doctor. Since there is no hospital in Akwesasne, the nearest doctor is across the border in Cornwall, which adds another hour round trip.

On top of jurisdictional issues, the federal government does not offer Indigenous communities any money to run their justice system, despite offering funds to all provincial systems. This renders self-governance difficult to implement on a large scale. Although Indigenous people have an “inherent right” to follow their own laws, they do not receive any assistance (financial or political) to do so.

Minister Lametti listened closely, which everyone appreciated; however, there was an unspoken sense that of all promises from the Canadian government that have been made before – hardly any have been upheld. This was deeply saddening; broken promises clearly had lasting effects on hope in the room. This left few people optimistic that increased jurisdiction would be granted to their court.

Incredibly though, even with little support, Akwesasne’s justice system has managed to thrive over the years. They have over 30 community laws, which are developed, amended, and enforced by their small (but mighty!) team.

For example, there are only two compliance officers and one conservation officer, who enforce community laws on the reserve. Although financial support is welcome to be able to increase the team’s size, it is amazing how much work those three do in the community every day to monitor and enforce the bylaws. I got the chance to join them on a boat outing while they were checking fishing licenses, and it was really nice to get a sense of what that side of the Department’s work was like.

Of course, inside the office was just as special (and where I spent most of my time). Some of the most driven and inspiring people I have ever met work in that office. They are passionate about their people and their community’s sovereignty; and although they face challenges like those listed above, it felt like nothing could stop them from asserting their right to it. Joyce King, Kyrie Ransom, Bonnie King, and Iris LaFrance are all strong women, who I interacted with every day, who inspired me, and helped me learn and grow as a person.

We must question the colonial roots that are still prevalent in the Canadian legal system today. Although Indigenous people have the inherent right to self-governance according to our Constitution, our institutions and legal system continue to impede the proper fulfillment of this right. If we are truly committed to a “nation-to-nation” relationship with Indigenous people, it is imperative we offer them the legal, financial, and political room to overcome jurisdictional challenges and properly manage their own justice systems.

 

Also, here are some lovely photos from my last day 🙂

 

What We Take for Granted…

By Leila Alfaro

The beautiful Andes, somewhere south of Mendoza

July 22nd, 2019

This is my last week in Mar del Plata. The last month has been tough for my family and me, as we have struggled with maintaining our Argentinian routine, so different from our regular one, and have been feeling homesick, missing our family and friends. I am very excited to head back home, but I am also very thankful for my time here, for the encounters I have had, the things I have learned, the places I have visited and the memories I have made. As the weeks progressed, I often had to fight the disconcerting thought that my presence here would ultimately prove to be useless and that in the end, I would realize just how little I had accomplished this summer.  I partly blame this on the slow pace of life here but these fears, certainly, were also anchored on the notion of just how complex issues pertaining to disability rights are, and that there is no single way of tackling them without eventually uncovering further underlying issues of a more complex nature. Exploring the field of disability rights, namely in a country with a fragile economy, proved to be beyond frustrating at times. A cloud of helplessness and desolation was hanging constantly over my head, as I had to come to terms with the extent to which ableism is embedded in the structures of society and just how limited the impact of rights and laws on paper can be, when there is simply so much that has to change in order to guarantee a dignified life for members of such marginalized group.

While I had no experience whatsoever in the field, especially in the Argentinian context, I found myself learning so much, so quickly. By learning from the situation in this foreign country, I inevitably felt the urge to find out more about the reality back in Canada. One of the most interesting moments in the context of the workshops with people with disabilities was when I was able to present a brief overview of how Canada approaches voting rights for people with disabilities. By communicating the reality of my country, I was able to share interesting links, like how the issue of an aging population has an incidence on the existing efforts of accommodation.

Curiously, when I elaborated on how there is still much to accomplish in Canada as well, I was met with what felt like skepticism. Argentinians certainly hold Canada in high regard, since they see our institutions as well-funded, efficient and “serious”. The irony is not lost in me, that as much as they admire said efficiency, they do not seem interested in a more rapidly-paced lifestyle. Indeed, such tradeoffs are inevitable, and we are not always in a position to be adequately critical of them given our own biases and perspectives which are ultimately limited by our personal realities.

Being abroad, I have mostly been able to reflect on the things I take for granted (like the people who are part of my daily life, the comfort of my home or some of my favourite foods!), but I have also learned about what people here take for granted. As I have become interested in the topic of voting rights for people with disabilities, I have begun working on a research project of my own. As I debated on which topic to present to the Centre for approval, I ultimately felt the strong urge to address the mandatory aspect of Argentinian suffrage. I found it fascinating how the people with whom I interacted could be so comfortable communicating their own frustrations regarding their system yet seemed very willing to justify it when I would question factors such as mandatory voting. I was surprised to find that virtually no literature exists on the subject in relation to disability (I was told there had been some kind of project done in another university that tackled this issue, but I have yet to learn more about it). I quickly became under the impression that, while Argentinians do recognize the particularity of their voting system in this regard (mandatory voting), they are quite satisfied with it. When it comes to discussing and promoting the ability to vote, basically no attention was brought to how the principle of mandatory voting might also impact persons with disabilities. This notion exemplifies the degree of ableism in society in terms of what the State expects from its citizens, seemingly ignoring the existing gap between those who have impairments and those who do not have any.

While I was pleased to hear that my research project relied on a novel outlook of the situation, I expect to gain more insight on the underlying ambiguities of mandatory voting, especially given the historical context of the Argentinian political scene. In elaborating on this topic, I hope to encourage other researchers and clinical workers to become more sensible to how the obstacles people with disabilities face are linked to more complex structural factors of society that we tend to take for granted.

My going-away dinner with members of the Extension Group on Voting Rights for PWD, comprised of graduate students and faculty from multiple fields

 

The last workshop in which I participated, especially tailored for people with visual impairments

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