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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

Trauma and the Practice of Human Rights Law

By Brittni Tee

In the early weeks of my internship at the Yukon Human Rights Commission, I attended a seminar focused on strategies to prevent vicarious trauma, burnout, and compassion fatigue in the workplace. With the exception of myself and my colleagues, the majority of people in attendance were social workers, addictions counsellors, and paramedics. As I listened to other attendees share stories about difficult situations that they had experienced at work, I remember feeling distinctly out of place. Prior to this workshop, the intersection between the practice of law and trauma had not been particularly apparent to me.  Yet, as my internship progressed, I quickly became grateful for the crash-course in trauma that this seminar had provided.

Most of my work with the Commission centers around responding to inquiries from members of the public.  Although the Commission will assist anyone who has a question about the Yukon Human Rights Act, the majority of inquiries I receive are from individuals who believe that their human rights have been violated. Unsurprisingly, conversations about these experiences are often emotionally fraught, both for myself and for the people that I am trying to help. After challenging days at the office, I sometimes find myself feeling drained, thinking about stories I heard at work while trying to relax at yoga or enjoy a drink with friends. Although I have only spent a few months at the Commission, it’s easy to imagine how the cumulative, long-term effect of this type of work could have negative mental health consequences.

The legal profession is somewhat notorious for embracing a competitive, “survival of the fittest” ethos which discourages acknowledging any sign of weakness. Unfortunately (and perhaps unsurprisingly), this culture has led to alarmingly high rates of addiction, depression and other mental health issues within the profession. Although these issues are beginning to be addressed from the perspective of improving work/life balance, the effects of trauma are less commonly discussed. In practice areas such as human rights law where trauma is regularly encountered in the workplace, this has negative repercussions for both practitioners and the people they are trying to help.

In simple terms, trauma is the psychological and emotional response to an experience that is deeply distressing or disturbing. It is often explained as our body’s response to an event perceived by our nervous system as significant threat, either to ourselves or others (often loved ones). In the field of human rights law, practitioners are also likely to encounter systemic or intergenerational trauma in communities that have been historically oppressed.  In many cases, the negative consequences of these experiences can persist across multiple generations.

While most people recognize that a traumatic event can create long-lasting emotional effects, many people underestimate the severe neurological impacts that trauma can have upon the brain. Research has shown that trauma can create long-term damage to the neurological pathways used for decision-making, resulting in overstimulated “fight, flight or freeze” responses. In addition to changing how a person interacts socially, this can also affect the ability to process thoughts and make good judgments. Taken together, the effects of trauma can significantly impact the way that individuals engage with the justice system and other elements of society.

In recent years, the concept of “trauma-informed practice” has become increasingly mainstream. Fundamentally, this approach focuses on acquiring a basic understanding of the psychological, neurological, biological, social and spiritual impact that trauma and violence can have on individuals seeking support. In particular, trauma-informed practice is centered on creating compassionate relationships built on respect, trust and safety. For practitioners, this means putting the choices of the people you are trying to help at the forefront of your practice, rather than trying to control or micromanage decisions. This is particularly important in human rights law, since individuals experiencing systemic discrimination can often develop a mistrust of authority figures and institutions. In these cases, providing hierarchical services which amplify existing power-dynamics may risk re-traumatizing those seeking assistance. In light of these considerations, trauma-informed practice emphasizes reducing power imbalances and approaching relationships from a position of equality.

In addition to understanding the impact that trauma can have upon individuals seeking assistance, it is also necessary to consider how repeated exposure to trauma can affect legal practitioners. Vicarious trauma, burnout and compassion fatigue are all incredibly common in the legal profession, particularly in practice areas such as human rights law. It is important for people working in these roles to keep an eye-out for signs which may indicate that their mental health may be suffering as a result of their work. Common recognizable signals of vicarious trauma and burnout include feelings such as sadness, anxiety, isolation, irritability, disturbed sleep, fatigue and difficulty concentrating. Many practitioners also experience something called “compassion fatigue” which results in a lack of empathy and loss of faith in humanity.

Increasing trauma-awareness is an important first-step to preventing and treating vicarious trauma and burnout in the legal profession. Workplaces should also strive to build healthy work environments, which include scheduled breaks and opportunities for employees to “step-away” from work when they feel overwhelmed. On a personal level, there are a number of strategies which individuals can use to reduce the negative mental health repercussions of repeated exposure to trauma. These include exercising regularly, eating healthy, maintaining personal support systems, and generally maintaining a balanced lifestyle.

Yet, while these techniques may be helpful, systemic and institutional changes are also necessary to truly reduce the prevalence of these issues. As trauma scholar Vikki Reynolds has noted, “individualizing” solutions to vicarious trauma obscures the context of social injustice in which this work occurs.[1]  The cause of the harm experienced by people working in helping professions is not clients, but the endless struggle and frustration of working within the confines of an unjust systems.  Although self-care is an important element of preventing burnout and vicarious trauma, ultimately the solution to these problems requires a collective commitment to justice and social change.

My internship at the Human Rights Commission has been incredibly rewarding, both personally and professionally. While this summer has reinforced my longstanding aspiration to work in this field, I have also realized that human rights work presents unique challenges. For those interested in building a career working in the public interest, understanding trauma and its effects is crucial to building a successful and sustainable practice. Moving forward, the legal profession must work harder to educate students and practitioners about the intersections between trauma and the practice of law. Ultimately, this will improve both the mental wellness of practitioners and the quality of service that they are able to provide to the public.

[1]https://vikkireynoldsdotca.files.wordpress.com/2017/12/reynolds2011resistingburnoutwithjustice-doingdulwich.pdf

A Summer of Luck

By Curtis Mesher

While it has been difficult for me to sit down and write out blog posts during this summer, this should not be taken as a lack of experiences to be shared, in fact it is the opposite. This summer has been transformative, both professionally and personally.

The difficulty in writing blog posts over summer came primarily from the overwhelming amount of experiences worthy of their own entries (coupled with a lack of wifi and computer access throughout the summer!). Part of the difficulty is properly presenting my experiences, as much of what I ended up writing was more akin to journaling or poetry writing, than anything professional or in-depth and explanatory.

I experienced so much in such a short period of time that I did not know where to begin. I learned a lot about the field of criminal law, I learned a lot about Nunavut, and I learned a lot about my own family. I saw the famous print studios of Cape Dorset and Pangnirtung, places I had long wished to visit as an amateur artist.

Throughout the summer, I have been grateful of this experience. Everything I have seen has inspired me in various ways. I made many new friends, and deepened my own family connections. It was a summer of change and understanding. I began my summer anxious about what the experience would entail, and I quickly felt at home here in Nunavut.

While I arrived knowing few people, awestruck by my new surroundings (and getting chastised by airport workers for stopping to look around on the tarmac!), I left awestruck by how familiar everything felt (with some of the same airport workers, now my close friends, yelling out goodbyes on the tarmac!). Over the summer I volunteered at Parks Day, Nunavut Day (the territory’s 20th anniversary!), and the Iqaluit Food Centre, and I got to meet what feels like everyone in town.

I got to spend time living with family I had not seen in years, and left after deepening connections with them, as well as forging new bonds with their young children. I got to make friends of my coworkers, and found out that some of them at Maliganik (as well as court house interpreters!) are my relatives as well.

Pleasant personal experiences like these are often what people find in the north, where you never know what to expect. I did not expect to feel so connected to people, or to the land around us. While it is difficult to leave Nunavut and Maliganik, I am lucky to have spent time here.

I am lucky to have seen the energy of Iqaluit and its people, and a summer of siku (sea ice).

I am lucky to have experienced the cozy hospitality of Apex and its residents.

I am lucky to have seen the beauty of Kinngait and the beautiful work of their world-renowned artists.

I am lucky to have shared fresh country food such as raw beluga and caribou brains with wonderful people.

I am lucky to have seen the majestic mountains of Pangirtung.

I am lucky to have seen the arrival of northern lights as the north transitions from summer, after a summer of daylight during the night.

I will miss Nunavut and all I have met during my time here. I am glad to have spent time in Nunavut this summer. I got to see what it takes to work in smaller communities, I got to experience the collegiality of law in the north, and I got to imagine what my future work in law will be, as I attempt to work in criminal defence in Nunavik. While I had always pictured myself working in Northern Quebec, I now easily see myself returning to work in Nunavut in the near future.

 

Content writing for the Maritime Security Index and research on the maritime activities of terrorist organizations

By Derek Pace

With less than one week left in Colorado, I’m still astounded at how much I’ve learned in just a few (very short) months. The bittersweet goodbyes have started, and with each passing day, I’m realizing that my time here is all too limited. Here’s a recap of the projects in which I’ve dabbled at work since my last post.

After transitioning away from the research and data collection phase of the Maritime Security Index, my time at work has been consumed almost entirely by writing. If you know me personally, you know that that’s the exact opposite of a problem in my eyes. I love to write; I could do it all day and have even thought of doing it professionally. At One Earth Future, I’ve been writing various forms of content for the Maritime Security Index, including country reports and issue briefs. The former takes the form of a two-page report that contains, among other things, two mini-reports on a country’s place within the international maritime sector. One mini-report focuses on something that the country is doing well, or perhaps on a certain maritime advantage that the country has due to its resources or coastal tourism industry. The other is more constructive and centers on a challenge that the country is currently facing or a way in which the country could improve.

These mini-reports, which we call a “solution” and a “challenge” respectively, can come from any of OEF’s nine maritime security issue areas: Piracy & Armed Robbery, Coastal Tourism, Coastal Welfare, Illicit Trades, Maritime Mixed Migration, Blue Economy, Fisheries, Maritime Enforcement Capacity, and International Cooperation. Each of these issue areas impacts a country’s maritime security situation in numerous ways. Some of the impacts are discrete, but usually, they are connected very clearly to other issues. For example, a country that has a strong fishing industry and healthy fish stocks in its waters will likely have a relatively high level of coastal welfare. When fishers can catch plenty of fish, feed their families, and receive artisanal fishing protections from the government, economic insecurity on the coast is reduced. Here’s another example: countries that have a low level of maritime enforcement capacity, meaning a small, weak navy that cannot adequately perform the full range of naval functions, is at a higher risk of piracy in its waters. All of the issues are connected, and I enjoy seeing how they fit together to form a broader picture.

I’ve also written geographic introductions for many countries. These are simply short, 100-120-word blurbs about the location of a country, its borders, and its coastline. The country introductions will be placed at the beginning of the “solution” and “challenge” reports to provide background information for reference.

Finally, I have written several region summaries–reports on the Maritime Security Index data findings for a specific issue area–for the Middle East-North Africa region. The region summaries have given me a prime opportunity to delve back into a region that I’ve found fascinating for years and that I explored in my undergraduate career in both Religious Studies and Arabic classes. I looked through this year’s data for the forthcoming Maritime Security Index for the Middle East and North Africa and described, broadly, what each issue area looks like in that region. I wrote one region summary for each of the nine issue areas with the exception of Piracy & Armed Robbery, since piracy is one of the specialties of Stable Seas (my division at OEF) and our team boasts multiple piracy experts.

During my last two weeks of work, I’ve been doing research for an extensive report on terrorist organizations and the various ways in which they and their peer organizations use the maritime sector in pursuit of their goals. Such use of the maritime sector can include anything from smuggling illicit drugs by sea to running sex trafficking rings in ports to bribing port inspectors to keep quiet about illegal shipments of drugs, arms, gems, and even wildlife.

I’m incredibly proud of the work that I have done at OEF. My talent and efforts have been recognized and celebrated here, and I can clearly see the value of the work that I am doing, which, I’ve come to realize in recent years, is essential to my happiness in the workplace. I don’t want to do something for no reason; I have to be certain that my work will contribute to a broader mission in some tangible way. I’ve had that certainty all summer at OEF. Recently, our division leader sent our team a first draft of one of the two-page country reports, complete with text boxes and graphs. I was, quite simply, overwhelmed when I saw the text that I had written right there on the page. It was then that I realized that when OEF publishes the Maritime Security Index this fall, my writing will be published along with it, and will subsequently be read by government officials both in the US and abroad, as well as by other maritime security stakeholders, such as conflict studies organizations, nonprofits, and academics. What I’ve been able to do here is exactly what I’ve always wanted to do, and while I genuinely do not want to leave Colorado, I will leave with the certainty that I have contributed substantially to numerous exciting projects this summer and discovered a new interest that I may never have discovered otherwise.

Gladue as Restorative Justice

By Christopher Little

When first arriving in Nemaska, a small community of 760 persons in Northern Quebec one sees a community that looks as prosperous as any Southern Canadian counterpart. Residents are serviced by a modern airport, have access to new swimming and fitness facilities, and new buildings are constantly under construction

This appearance of prosperity, however, disguises many of the difficult historical experiences that community members have confronted. Indeed, the reason that Nemaska and many other communities in the region appear so new is that they were constructed largely since the 1980s, after the Cree were forced into a sedentary way of living that began during the fur-trade period and culminated with the James Bay Hydroelectric Project and the flooding of their lands.

As a Gladue writer for the Department of Justice and Correctional Services of the Cree Nation Government, part of my placement has been devoted to conducting historical research about the community. It is this information, some of which is presented below, which allows the Court to better understand why some offenders appear before the Court and which may therefore diminish the moral blameworthiness of the offender.

The James Bay Hydroelectric Project

The defining event of the modern life for the Cree of the James Bay has been the creation of the James Bay Hydroelectric Project. This project began with Quebec’s desire to harness the natural resources of the land to complete its modernization. The construction of the Hydro-Electric Project was a central feature of Robert Bourassa’s 1970 electoral campaign and his promise to create 100,000 jobs, and once elected, he saw that the project was a priority.

This project, which would require changing river flows and create massive flooding, threatened the Cree way of life which was depended upon continually moving across the landscape in small, extended family groupings, to harness game resources. Although Cree groups in the James Bay did gather around the Hudson’s Bay Company trading posts where they sold furs, acquired supplies, socialized and arranged marriages, this typically occurred only in the summer months when game was scarce and fish thus became the primary subsistence food.

In advance of this project, the Nemaska people who had settled around the trading post at Lac Némiscau were visited by Hydro-Quebec officials and told that their land would be flooded and that they would have to move.  For this and other reasons, such as the closure of the Hudson’s Bay trading post, Nemaska people were relocated by the Federal government, with half going to Mistissini and half to Waskaganish (Rupert House).

The site of the Hudson’s Bay Company trading post on Lac Némiscau

However, at the time, the Cree did not have an overarching identity and instead, “the region was comprised of eight different communities having relatively little to do with each other… [and] whose primary allegiances were to their own communities (and in fact in some cases even to smaller units than the community).”[1]  As such, the Nemaska people were largely treated as outsiders in other communities, and forced to erect housing on the least desirable lands.

While beginning to transition to a sedentarized life, Nemaska people experienced other difficulties as well. For instance, elders recall that the time in exile was the first time that people had sustained access to alcohol and that alcohol overconsumption became a pressing social issue. Likewise, the time in exile also disrupted traditional cultural practices such as fishing since people from the inland were unfamiliar with coastal tidal waters.

While living in exile, the James Bay Hydro Electric Project proceeded without consultation with the Cree. It was only a young generation of Cree leaders, such as Philip Awashish and Billy Diamond, who heard about the project by reading a day-old copy of the Montreal Star, used their residential education, to organize resistance and launch a legal challenge that brought the Quebec government to the negotiating table.[2]

 

Part of Hydro-Québec’s modification of the Rupert River that was expected to result in the flooding of the Nemaska trading post.

 

Power lines run across the landscape of the James Bay region.

Creating a Community

The James Bay and Northern Quebec Agreement (JBNQA) provided for the relocation of members of the Nemaska band to a new site. As such, in 1978, those who were exiled at Mistissini and Waskaganish were re-located to the shores of Champion Lake. However, even after being re-located to their new community, the Nemaska people continued to experience hardship because the government was not fulfilling their terms of the JBNQA. In 1980, for instance, an epidemic of gastro-enteritis resulting from insalubrious living conditions hit Nemaska and three children died.

Cree communities are built on land reserved for their exclusive use under the JBNQA

In 1981, then M.P. for Cariboo-Chilcotin, Lorne Greenway, read the following into the record of the Standing Committee on Indian Affairs and Northern Development:

In August 1980 the Quebec ministère des Affaires sociales (MAS) received word from the Cree Indians of James Bay that an epidemic had broken out in their villages of Nemaska and Fort-Rupert. A mission of medical and environmental specialists was dispatched to the scene. They found: people living in substandard housing; appalling sewage and waste water disposal facilities; contaminated water supplies; poor hygiene and relative isolation from the outside world. In Nemaska, for instance, some 35 families still lived in tents, awaiting the construction of houses on permanent sites, five years after the Agreement was signed. Furthermore, the village’s isolation from the provincial road network limited outside communication to air and motor-canoe. Solid garbage and waste were being dumped into a site near the edge of Lake Champion, a shallow lake that will not long tolerate such practices without becoming polluted.[3]

While more suitable residences were eventually constructed—though housing shortages continue to plague the community—sedentarization had additional social consequences. Living in houses designed for nuclear families, for instance, upended traditional living arrangements which were based upon extended or multi-family cohabitation. A diet which had once been based around game meat was replaced by processed foods imported from the South. Likewise, whereas once every activity had been oriented towards the locality, after settling on reservations, people were now incorporated into complex administrative structures based in distant cities such as Val-d’Or.

Other more existential questions, however, were more difficult to answer: How do people who came to see themselves as “hunters and trappers,” now adopt to making a living through wage labour? How do people without a tradition of communal living—or even, perhaps, a notion of community in the sense of Western social theory—successfully live together? And finally, how do people who have experienced so much hardship, move forward with their lives in the context of radical change?

Gladue and Restorative Justice

These last two questions are ones to which there is no clear answer, and they become particularly acute in the context of serious crime and persistent offenders. Statistics illustrate that aboriginal persons are three times more likely to be victimized by crime than other Canadians.[4] Further, “Perpetrators of violence against Aboriginal people are most often other members of the Aboriginal community such as spouses, relatives, or friends of the victim, and as such, victimization among Aboriginal people in Canada is often regarded as a mirror image of Aboriginal offending.”[5]

The justice system has largely relied upon imprisonment to address of aboriginal offenders, leading to the problem of aboriginal overrepresentation that I previously discussed. However, given the colonial history of aboriginal populations—some of which is discussed above—those appearing before the court as offenders are, from another perspective, also victims.

Court rooms in Cree communities are circular, reflecting the idea that the community should be involved in justice matters.

Gladue reports allow for the possibility to address this dual victimization through restorative justice. Restorative justice approaches see crime as both a violation of the law and as a violation of relationships and communities. They therefore involve those affected by a crime to try to repair the harm done while encouraging an offender to take responsibility for their actions. Restorative justice approaches therefore not only allows the offender to grow through the process but, for all those to have their say in any proposed solutions.

Gladue reports allow for the possibility to address this dual victimization through restorative justice, which sees crime as both a violation of the law and as a violation of relationships and communities. Gladue reports allow for the realization of restorative justice in several ways, but most obviously by proposing sentences to the Court that address the underlying issues that brought an offender to appear before the Court. Courts in the James Bay region, for instance, have allowed offenders to participate in Sun Dances as well as attend land-based programs given that spending time on the land “is recognized throughout Cree society as a potential source of personal improvement.”[1] These restorative sentencing options are tailored to suit the particular offender and the community, and emerge from interviews with the offender and others, allowing those impacted by crime to have a say in its resolution.

Additionally, since Gladue reports engage with the life history of the offender, supplemented by information from other family members, the process of creating and reviewing the report allows the person to reflect upon their life experiences as well as their offences. They are often therefore able to plot a better path forward, both for themselves and their community, that will allow them to live a more harmonious life.

[1] Paul Wertman, 1983. Planning and Development after the James Bay Agreement. The Canadian Journal of Native Studies 3(2) at page 278.

[2] Ronald Niezen, 1998. Defending the Land: Sovereignty and Forest Life in James Bay Society (New Jersey: Prentice Hall) at page 48.

[3] Standing Committee on Indian Affairs and Northern Development, 32nd Parliament, 1st Session. March 26, 1981 at page 1101.

[4] Jodi-Anne Brzozowski, Andrea Taylor-Butts, and Sara Johnson, 2006. Victimization and offending among the Aboriginal population in Canada (Ottawa: Canadian Centre for Justice Statistics) at page 1.

[5] Katie Scrim, 2017. Aboriginal Victimization in Canada: A Summary of the Literature. Available: < https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd3-rr3/p3.html>

Passage à l’ACLC et Toronto en quelques mots

Par Caroline Rouleau

Déjà neuf semaines de stage se sont écoulées à l’Association canadienne des libertés civiles (ACLC). Comme le temps file! Plus que quelques jours pour en profiter.

La Charte constitue la pierre angulaire de mes recherches au quotidien et, plus largement, de la culture du CCLA. Depuis mon arrivée, j’ai fait de la recherche sur quelques sujets touchant aux libertés civiles : le « droit à l’oubli » reconnu en Europe, les types de protection de la vie privée souhaitables dans le contexte d’inspections réglementaires, la portée de la protection contre les peines cruelles et inusitées, pour en nommer quelques-uns. En sus, j’ai pu assister à des conférences ainsi qu’à des audiences à la Cour; nous sommes d’ailleurs allées observer des audiences de libération sous caution hier et les audiences au tribunal en santé mentale, en plus d’avoir un cours express sur la procédure. Il est juste de dire que l’été est riche en expériences.

Des débats d’envergure trouvent leur place dans cette petite organisation qui compte moins de dix membres. Sa mission : faire évoluer le droit de sorte que les libertés civiles se matérialisent. Sans client pour dicter la voie à suivre, le travail de l’organisation est holistique et imaginatif. Les conversations qui se tiennent à l’ACLC, auxquelles les stagiaires participent activement, tiennent compte d’une multitude de réalités. Les préoccupations soulevées révèlent une compréhension de perspectives diverses – on considérera l’impact d’une politique notamment du point de vue de minorités religieuses, de personnes racialisées, de jeunes LGBTQ, d’accusés (jugés coupables ou non coupables). Ces exemples concrets font ressortir l’importance de nos libertés civiles. Je tâche donc d’absorber le plus possible les connaissances de mes collègues.

Mon été à Toronto ne se résume toutefois pas à mon expérience de stage.

Je découvre une ville qui m’était auparavant étrangère. Toronto est un des centres les plus multiculturels au monde, et cela en fait une ville impressionnante à mon avis. Cela se reflète particulièrement dans la gastronomie : brunch aux dim sum dans China Town, déjeuner franco-jamaïcain, et cuisine mexicaine aux effluves de Mezcal. J’apprécie également la musique de rue dans Kensington Market, que ce soit le fidèle duo jazz présent toutes les fins de semaine, ou un groupe de chanteuses à saveur Nouvelles-Orléans. J’ai pu témoigner de l’effervescence créée par la victoire des Raptors, découvrir les plus beaux coins de la ville et, surtout, m’exposer à la communauté de danse de Toronto qui regorge de talent.

En somme, l’expérience est riche sur le plan légal, culturel, et humain.

Working in Human Rights isn’t all about Law

Par Félix-Antoine Pelletier

« The journey is sometimes more important than the destination. »

Laissez-moi vous raconter comment je suis arrivé au Conseil national des droits de l’Homme du Maroc…

Médina (ancienne partie d’une ville) de Rabat

Le processus pour être sélectionné pour l’un des International Human Rights Internships Program m’est familier. Je l’ai expérimenté à deux reprises.

En première année, j’ai soumis ma candidature au programme dirigé par la Professeure Nandini Ramanujam. Je ne savais pas vraiment ce que je faisais. D’une part, j’avais peu d’expérience professionnelle et de vie à mettre de l’avant. Ma maturité m’avait fait défaut. D’autre part, j’avais de la difficulté avec mon anglais. Cela s’est aussitôt ressenti en entrevue lorsque les premières questions posées en anglais sont venues… et qu’il fallait répondre en anglais. L’entrevue a duré 12 minutes. Quelques semaines plus tard, un e-mail m’annonçait que ma candidature n’était pas retenue.

Tanger, Maroc

Parmi toutes les leçons et les valeurs que j’ai tirées du sport de niveau élite et compétitif, il y a la persévérance. Peu importe les circonstances ; peu importe le contexte. J’ai aussitôt écrit à la Professeure Ramanujam et j’ai cédulé un rendez-vous avec elle. Je lui ai demandé : « qu’est-ce que je dois améliorer ? » Elle m’a répondu deux choses : mon expérience et mon anglais.This retroaction marked the beginning of a great journey.

C’est ainsi que j’ai pris mes clics et mes clacs et que je me suis exilé à Ottawa pour l’été 2018. Du mois de mai au mois de septembre, j’ai occupé le poste de Guide parlementaire au Parlement du Canada. J’ai été complètement déstabilisé. Ce fut la première fois que j’habitais dans un endroit que je ne connaissais pas. La première fois que je m’éloignais pour une aussi longue durée de mes proches. La première fois que j’habitais seul en appartement. La première fois que je cuisinais. La première fois que je travaillais dans une langue que je ne maîtrisais pas. Durant cet été, j’ai été amené à présenter des visites du Parlement et du système politico-juridique canadien à des groupes de 35 visiteurs venus de partout dans le monde. 5 fois par jour. Très souvent en anglais. J’ai rencontré des gens formidables, j’ai surpassé mes propres capacités d’adaptation et d’autonomie, j’ai grandi.

Marrakech, Maroc

Professeure Ramanujam, je vous en suis énormément reconnaissant. Avant de m’envoyer au Maroc, vous m’avez envoyé prendre de l’expérience. Je me suis entraîné à sortir de ma zone de confort, à améliorer mon anglais, à développer ma maturité, à prendre de l’expérience de vie. Merci beaucoup pour ce précieux cadeau. J’ai fait énormément de sacrifices – plus que ce qui est descriptible en un seul blog post – en m’exilant à Ottawa pour tout l’été. J’ai tout misé, all in, avec l’espoir de revenir à l’automne, de décrocher une entrevue avec vous, de vous démontrer que j’avais amélioré ce que vous m’aviez conseillé d’améliorer, et de vous présenter le parcours que j’avais parcouru depuis.

À mon retour à McGill à l’automne, en deuxième année, j’ai soumis pour une deuxième fois ma candidature à l’International Human Rights Internships Program. L’entrevue a duré 9 minutes. Mes réponses en anglais ont été satisfaisantes. D’ailleurs, au début de l’entrevue (et de sa propre initiative), la Professeure Ramanujam m’a elle-même introduit aux intervieweurs en leur parlant de mon été à Ottawa et de mon implication communautaire au sein de la Clinique Juridique Itinérante à Montréal.

Conseil national des droits de l’Homme, Rabat

Quelques semaines plus tard, j’apprenais que je partais au Maroc pour l’été 2019. J’avais déroché le stage au Conseil national des droits de l’Homme (CNDH) du Maroc. Mon objectif allait se réaliser.

 

 

 

 

Cascades d’Akchour, Maroc

« The journey is sometimes more important than the destination. » Je réfère à cette citation pour plusieurs raisons. Premièrement, mon expérience à Ottawa m’a donné une aisance remarquable dans les deux langues. Je suis maintenant beaucoup plus confiant et habile en anglais et je me débrouille plutôt bien dans les cours enseignés en anglais. J’arrive de loin, croyez-moi. Je peux maintenant entretenir quasi n’importe quelle discussion en anglais. Deuxièmement, mon expérience à Ottawa m’a enseigné l’autonomie et la débrouillardise. J’ai gagné en maturité et en ouverture d’esprit. Cela forme aujourd’hui le jeune homme que je suis. Toutes ces qualités se récupèrent dans tous les aspects de ma vie. Au-delà de me permettre d’aller au Maroc, Ottawa m’a fait grandir.

Si les objectifs du International Human Rights Internships Program sont de nous faire grandir et de découvrir toutes sortes de choses ainsi que de nous sortir de notre zone de confort, je dirais que la Professeure Ramanujam m’a fait commencer ce processus 1 an à l’avance. Cela a grandement amélioré mon expérience au Maroc.

Conseil national des droits de l’Homme, Rabat

Le CNDH du Maroc est une Institution Nationale des Droits de l’Homme (INDH). Conformément aux Principes de Paris (1992), le CNDH est une institution étatique pluraliste et indépendante du gouvernement. Le CNDH est enchâssé dans la Constitution marocaine de 2011 (article 161) et il a un mandat de protection et de promotion des droits humains.

On retrouve des INDH dans la majorité des pays du monde. Au Canada, il s’agit de la Commission canadienne des droits de la personne. Le CNDH du Maroc est donc l’équivalent fonctionnel de la Commission canadienne des droits de la personne. Pour la durée de mon stage, j’ai eu la chance de travailler dans le Département de la Coopération et des Relations Internationales.

Lors d’un atelier de formation des Mécanismes de prévention de la torture, Rabat

Par mon implication sociale et communautaire en droit criminel et pénal à Montréal, j’ai été habitué à une conception « terrain » et « pragmatique » des droits humains. J’ai été habitué à aller dans des refuges pour personnes en situation d’itinérance, accompagner les usagers en Cour ainsi que chez l’agent de probation, discuter avec les avocats des usagers, planifier des stratégies pour sortir les usagers du pétrin. Bref, à avoir un contact humain avec les personnes que j’aide, à travailler avec « une personne à la fois » et à effectuer du travail à plus petite échelle dont les effets et les résultats sont quasi immédiats.

Au CNDH du Maroc, j’ai eu droit à l’envers de la médaille. Complètement. Là, c’était du travail à plus grande échelle. J’ai découvert une perspective plus « systémique » des droits humains au sein d’une structures plus rigide où les résultats prennent plus de temps à se concrétiser puisqu’ils sont à grande échelle. On découvre alors que plusieurs acteurs entretiennent certains rapports de force sur la scène internationale. Même dans un domaine aussi altermondialiste, empathique, sensible à l’autre et progressiste comme les droits humains, les intérêts sont nombreux et divergents. Par conséquent, ils s’opposent.

J’ai énormément appris sur la liaison inhérente entre le Politique et les droits humains ainsi que sur l’importance pour les acteurs locaux, nationaux et internationaux d’accumuler du capital politique. J’ai été pleinement initié au système onusien et à celui de l’Union africaine. En effet, mon travail au CNDH a été une véritable initiation au système international. Ce stage m’a permis d’apprécier les certaines tensions entourant l’existence de normes, conventions, instruments et mécanismes internationaux qui soient juridiquement non-contraignants.

Tétouan, Maroc

Contrairement à mon expérience à Montréal, j’ai plutôt travaillé assis dans un bureau et dans la salle de réunion à discuter d’enjeux régionaux, nationaux et internationaux ; de manœuvres politiques ; de plans d’action ; de « public policies ». Je suis très reconnaissant d’avoir vécu cette expérience au Conseil national des droits de l’Homme du Maroc, car j’ai eu droit à une perspective complètement différente du travail dans les droits humains.

Cela démontre la grande diversité de postes qu’il est possible d’occuper dans les droits humains.

Pour faire une véritable influence dans le domaine des droits humains, il faut voir au-delà du travail qui soit a priori « juridique ». Les droits humains et le travail dans ce domaine dépassent largement le « droit ». Les tâches dans ce domaine sont infinies et elles sont mutlidisciplinaires.

Stagiaires du CNDH à l’été 2019 : Kaoutar (Maroc), Dejan (Slovénie), Maddie (États-Unis), Blanca (Espagne), Félix-Antoine (Canada)

Certes, j’ai effectué de nombreuses tâches de nature « juridique ». Premièrement, j’ai fait plusieurs recherches liées au droit international. J’ai jonglé avec plusieurs instruments, conventions et normes internationaux. Deuxièmement, j’ai rédigé des plaidoyers fondés sur des bases juridiques pour permettre au CNDH de prendre position et d’émettre des recommandations face à des violations des droits humains perpétrées à l’étranger. Troisièmement, j’ai produit des rapports exposant comment d’autres pays composent avec certaines situations liées aux droits humains. Du travail a priori « juridique », j’en ai eu.

Akchour, Maroc

Néanmoins, la majorité de mes mandats n’étaient a priori pas « juridiques ». À mon avis, ce sont tous les « à côté » qui rendent efficient et pragmatique le travail dans le domaine des droits humains. Au CNDH, j’ai été amené à effectuer plusieurs mandats qui a priori n’ont rien à voir avec le « droit ». Par exemple :

1- J’ai traduit des documents de l’anglais vers le français. Bien que cela ne soit a priori pas « juridique », cela a permis à mes supérieurs (maîtrisant principalement que le français et l’arabe) de prendre connaissance d’un dossier selon toutes ses nuances et de prendre des décisions éclairées quant au sort des relations internationales relatives aux droits humains en Afrique.

Médina de Tétouan, Maroc

2- J’ai traduit une convention collective complète de travailleuses marocaines, de l’espagnol vers le français. Je parle à peine l’espagnol, mais je me suis débrouillé. Bien que cela ne soit a priori pas « juridique », cela a permis au CNDH du Maroc d’adéquatement réagir aux violations des droits humains perpétrées à l’endroit de personnes marocaines dans un pays étranger.

3- J’ai organisé plusieurs évènements d’envergure internationale. J’ai géré la logistique ainsi que rédigé les lettres d’invitation et les communiqués de presse. Bien que cela ne soit a priori pas « juridique », cela a permis à plusieurs INDH africaines de se rencontrer, d’échanger sur leurs bonnes pratiques et de mutuellement renforcer leurs capacités. J’ose espérer que le renforcement des compétences des acteurs locaux issus de plusieurs pays africains améliorera le sort des droits humains dans ces pays. J’aurai été celui qui aura facilité – voire permis – cette rencontre.

4- J’ai écrit plusieurs notes conceptuelles, rapports et synthèses de documents. Bien que cela ne soit a priori pas « juridique », cela a facilité – et surtout accéléré – le travail de mes supérieurs.

Ces quatre exemples démontrent que le travail en droits humains est pluraliste et multidisciplinaire. Il est parfois directement « juridique », mais parfois indirectement « juridique » aussi (c’est-à-dire en support à ce qui sera ultérieurement juridique).

Il y a tellement à faire au Maroc – comme partout ailleurs – que j’ai la ferme conviction d’avoir apporté un changement positif pour les droits humains au Maroc. J’ai augmenté la productivité de notre département et j’ai facilité les tâches de mes supérieurs grâce à mon travail. Le « backstage » est tout aussi important, voire bien plus, que le « front stage ».

Benslimane, Maroc

Certaines personnes s’imaginent peut-être qu’elles travailleront véritablement en droits humains que lorsqu’elles plaideront devant la Cour international de justice ; qu’elles prosécuteront des généraux ayant perpétré des crimes contre l’humanité ; qu’elles seront engagées au OHCHR ; et qu’elles révolutionneront le droit positif d’un pays en voie de développement. En réalité, ce n’est qu’une toute petite partie du travail dans les droits humains.

Essaouira, Maroc

En fin de compte, j’ai compris que le travail « juridique » et « a priori non-juridique » passe au second plan dans le domaine des droits humains. Au premier plan, il y a ce qui prime : les personnes que nous aidons. Human rights are about people. « Juridiquement » ou non, ce sont pour ces personnes que nous œuvrons. Nous devons veiller à leur bien-être, à leur confort, à l’amélioration de leur situation, à leur compréhension de ce qui leur arrive, à leur stabilité ainsi qu’au rétablissement des inégalités qu’elles subissent quotidiennement. Des qualités comme l’empathie et la sensibilité sont essentielles pour œuvrer dans le domaine des droits humains. Merci beaucoup de m’avoir lu et bien à vous.

Félix-Antoine Pelletier

Canada and the Inter-American Court of Human Rights

Kelly O’ConnorBy Kelly O’Connor

On May 8th I flew to San José, Costa Rica to start my internship at the Inter-American Court of Human Rights. Despite arriving at the beginning of Costa Rica’s rainy season – which Costa Ricans call invierno (winter) – the warmth and humidity was a welcome change from Montreal’s still-lingering winter. I spent my first days here settling in: finding the nearest supermarket, exploring the San Pedro neighbourhood where I live, and making new contacts with friends-of-friends who live in the city.

The Inter-American Court of Human Rights has a permanent internship program, which runs in three sessions: September-December, January-April, and May-August. The Court allows the interns to choose their start and end dates, so the interns all have slightly different start dates. The coordinator of the internship program put all the interns for the May-August period in touch via email, and we have since been corresponding through a WhatsApp group chat (if you’ve spent any time in Latin America, you know that WhatsApp groups are the preferred method of communication… even in a professional context, to my great surprise!). Most of the approximately 25 interns had already started their internships, 5 of us starting on Monday, May 13th.

My first day at the Inter-American Court of Human Rights

On the Friday before starting my internship, my future colleagues who had already begun wrote in the WhatsApp group that they were planning to meet up for a sort of 5 à 7 at a Venezuelan restaurant in the trendy Escalante neighbourhood. Having already arrived in San José, I decided to join them. I was nervous to meet all my future colleagues for the first time (not to mention to chat with them in my third language!) but I felt immediately welcomed into the group. I haven’t met all the other interns yet, but those who I met hailed from Argentina, Colombia, Costa Rica, Mexico, and Peru.

At the event, my new colleague, Manuel from Argentina, asked me if Canada recognized the competence of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. To my great embarrassment, I realized I didn’t definitively know the answer, despite spending the last two years learning about the Court and immersing myself in its jurisprudence. I knew that Canada was not a member of the Court, but I was not sure of its relationship to the Commission. So, I decided to inform myself, and hopefully any future intern who might read this post!

With Manuel and some other colleagues, taking a break to taste Argentinean mate (a kind of tea)

To this end, I consulted an article called “Canada and the inter-American human rights system: Time to become a full player” by Bernard Duhaime, one of the most well-known Canadian legal scholars who focuses on human rights in the Americas. [1] It’s a great starting point for anyone who wants to know more about Canada’s place in the Inter-American Human Rights System.

I already knew, of course, that Canada has been a full member of the Organization of American States (OAS) since 1990. As a member of the OAS, Canada has an obligation to respect human rights contained in the OAS Charter and the American Declaration of the Rights and Duties of Man. I also knew that Canada has not signed or ratified the American Convention on Human Rights, which is the main international human rights instrument for the Americas and also establishes the Inter-American Court of Human Rights.

What I did not know was that when Canada became a member of the OAS, it also accepted the competence of the Inter-American Commission to “formulate recommendations to member states and to receive and process individual petitions” against states. [2] However, since Canada has not ratified the American Convention, the Commission can only consider petitions that claim violations of provisions of the American Declaration. Many provisions in these two instruments are similar.

Actions against Canada make up only 0.4% of the petitions presented before the Commission. In another, more recent article, Duhaime presents a brief overview of reports by the Commission that concern Canada:

Very few individual actions have been brought against Canada before the Commission, which has only adopted three Canadian decisions on the merits, six on admissibility, and three on inadmissibility. The IACHR has also published two thematic reports on Canada, the first concerning the Canadian Refugee Determination System (2000) and the second on Missing and Murdered Indigenous Women in British Columbia (2014). [3]

Of these, the Commission has only decided one case against Canada: Manickavasagam Suresh v Canada (2016), which concerned judicial review of immigration detention for a refugee found inadmissible to Canada on the grounds of national security, but who would risk torture upon return to his country of origin.

I brought this information back to Manuel, but he immediately asked me: Why? Why did Canada decide to join the OAS and ratify the American Declaration, but did not adhere to the American Convention? I had a feeling that the reason was political: as a student of human rights I am aware of some of the hot-button human rights issues in Canada, such as the state’s relationship to Indigenous peoples and our immigration and refugee system. I thought that maybe Canada wanted to avoid having its dirty laundry displayed on the world stage, with possible repercussions for its image as a human rights defender. I found that the answer is much more complicated than I thought.

In researching this topic I happened upon a special issue of the Revue générale de droit entitled “Canada’s Role in Protecting Human Rights in the Americas.” In this issue, the Honourable Marie Deschamps, former justice of the Supreme Court of Canada, warns of problems that Canada could face if it were to join the system in “L’approche canadienne : assurer la protection des droits de la personne de façon distinctive.” [4]

Deschamps points out that Canada has long hesitated to get involved in the Inter-American system. While the OAS Charter was adopted by in Bogotá in 1948, Canada didn’t join the OAS as an observer until 1972, and not a as a full member until 1990. The American Convention has been in effect since 1978, but Canada has still not signed, let alone ratified it. [5]

Deschamps argues that there are good reasons for Canada’s reticence, pointing out problems with the Inter-American Human Rights System and identifying potential problems of incompatibility with Canadian law. [6] Her main issues are:

  1. The IACtHR’s use of “creative” remedies to human rights violations and its procedures for monitoring compliance with its decisions
  2. Long delays between first complaint and final decision from the IACtHR

First, Deschamps points out that the IACtHR has a history of identifying “creative” remedies for human rights violations beyond pecuniary damages. For example, in the case Favela Nova Brasilia v Brazil, the Court required Brazil to undertake some unconventional remedies such as publishing a summary of the decision on the government’s Twitter and Facebook pages and creating and implementing a training program on sexual violence for police officers and health care workers. Deschamps suggests that these types of “creative” remedies are not compatible with Canada’s separation of powers, citing Canada c Khadr (2010) [7]. On a similar note, Deschamps observes that, while supervision of compliance with Court decisions is de rigueur in the Inter-American System, such actions are only undertaken by Canadian courts in very exceptional circumstances, per Doucet-Boudreau v Nova Scotia (Minister of Education) (2003), also due to the separation of powers [8].

Second, Deschamps cites long delays between the first complaint and the Court’s decision, which can stretch more than 20 years in the Inter-American System. These fall well outside the “reasonable” 18-month deadline set by the Supreme Court of Canada in R v Jordan (2016) [9]. I also found out that in 2003 there was a Senate Commission on Canada’s involvement in the Inter-American system, which cited these long delays as a worry but ultimately recommended that Canada join the system. [9]

In addition to the above, the Senate report expresses concern about Article 4(1) of the American Convention, which protects the right to life, “in general, from the moment of conception” and which appears prima facie to contradict Canadian jurisprudence on the subject of abortion as provided in R v Morgentaler (1988). [10]

Visiting San José’s Parque Metropolitano La Sabana on the weekend

Through my research for this blog post, I discovered that the question of whether Canada should adhere to the American Convention and recognize the competence of the Inter-American Court of Human Rights was much more complicated than I had thought. I was persuaded by some of the arguments presented by Justice Deschamps, and I find myself particularly concerned about Article 4(1) of the Convention. I guess my next step would be to research the arguments in favour of Canada’s adherence to the Convention and the potential impact of Article 4(1). I think I would like to dive more deeply into my internship, the jurisprudence, and arguments for and against before I make a decision on this topic.

In the meantime, I will keep learning and exploring. Until next time!

 

—————-

[1] Bernard Duhaime, “Canada and the inter-American human rights system: Time to become a full player,” International Journal, Summer 2012.

[2] Ibid, at p 641.

[3] Bernard Duhaime, “Ten Reasons Why Canada Should Join the ACHR,” Revue générale de droit, Vol. 49 (2019), at p 189.

[4] Marie Deschamps, “L’approche canadienne : assurer la protection des droits de la personne de façon distinctive,” Revue générale de droit, Vol. 49 (2019).

[5] Ibid, at p 37.

[6] Ibid, at p 38.

[7] Ibid, at p 39.

[8] Ibid, at p 39.

[9] Senate, Report of the Standing Senate Committee on Human Rights, “Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights (May 2003), online: <https://sencanada.ca/content/sen/Committee/372/huma/rep/rep04may03-e.pdf >.

[10] Ibid.

On Being a Human Rights Intern

By Daniel Powell

When a bright-eyed colleague of mine asked me why I had decided to spend a summer pent up in the Foundation’s off-highway suburban headquarters, I offered the only response that I could possibly muster to justify the cosmological happenings that had brought me there. My presence at the One Earth Future Foundation, like the presence of the other two McGill Law interns whose desks sandwiched my own, was the product of a well-ordained coincidence. As the saying goes, I never chose to end up at the Foundation; it chose me, as a matter of circumstance, and I willfully obliged. The circumstances were, to be fair, a product of my own making. I attended the one-and-a-half hour information session on the Faculty’s international human rights program and prepared an application, quickly modifying an existing resume and writing out answers to short essay questions. And when I had finished preparing the application, I forwarded my application to the human rights program. However, even as these actions were of my own doing, I never really believed that they would lead to anything. I certainly never expected that my application would be the cause of a professional experience as rewarding as the one that I experienced.

Of course, when I received an email inviting me to interview, I accepted with delight, remembering the seemingly inane words of advice that I once received from a human resources staffer to the effect that one can never secure a job without attending the interview, words which I have never managed to forget, precisely because their epistemological truth is cocooned as a stark and deceiving tautological absurdity.

The coincidence that had brought me to Broomfield for the summer was formalized in an interview before a four-person committee in a dimly lit seminar classroom. I remember entering the interview room and feeling immediately that I was under the thralls of a civilian inquisition. And although I appreciate that this imaginary portrait may now seem to be nothing more than a preposterous posture of literary excess, understand that the idea did occur to me. The imaginative invocation was not a completely absurd one either. At the time of my interrogation, I had just begun to study the origins of civil law and judicial institutions. The image of a panel of adjudicators sitting in a dark, cloistered law school seminar room had enough eidetic relation to the civilian investigation figured as a secretive Church affair that I could not resist the analogy.

At least I brought flowers. The day of my inquisition, I wore a collared floral shirt, a style choice which I then believed to reflect a comfortable balance between quirk and professionalism. The inquisitorial meeting was short, and though I left with a sense of nervous incapacity at my failure to communicate a clear vision of my interest, I found out later that this inquisitorial committee had nevertheless chosen to select me, in the same way that it had selected the rest of the twenty-something person cohort, to participate in the program. More than a mere offer to work at One Earth Future for the summer, the program director, Professor Ramanujam, offered me, as she offered all interns, an opportunity to participate as a human rights intern: a learning experience which included both a real-world clinical and academic component.

Back in Broomfield, while recounting with strategic brevity the series of coincidences that had brought me to intern there, I realized fairly quickly that something I had said was out of line. The moment that I associated human rights with the One Earth Future Foundation, a reaction registered on the face of this bright-eyed colleague. By the time I had finished sharing the story, its meaning had registered dominantly in her facial expression. The reaction was not the kind of reaction easily suppressed by an intentional grin of the jaw leftwards or rightwards, as if some jocular jiggle could eliminate true feelings from the facial repository. The reaction was crystal clear.

When I stopped speaking, she gave words to these emotions: “This is not a human rights organization.” These words were spoken clearly and declared with so much clarity that I was made to feel like some embarrassed and disoriented mouthpiece stuck stumbling over words which had become alien to him. She added that she had done human rights work previously and this organization, the one for which I was supposed to be a human rights intern, was not and could not actually be a human rights organization. She knew  this too because she had brought “relevant work experience” when she joined the Foundation, had even been recruited because of it, and that experience was of course definitive.

However, for all the certainty, she never seemed to consider whether what she was now doing, though not conventional human rights work, had some important or at least remote connection to human rights. Instead, she held that because she was not directly working with the subjects of human rights, and the mandate of the organization was not directly related to human rights, the organization could not be engaged in human rights work.

This exchange might have been a dandy one, easily repressed by memory or rationalized into irrelevance, if it had been singular. But the view of my colleague was not singular. She was not the sole soul of colleague who shared this all too similar opinion about the work of the Foundation. It was shared by many, including my own supervisor, who suggested so nonchalantly that One Earth Future was not really a human rights organization that when he said it I nearly choked haphazardly on a mouthful of air.

I lingered doubts for quite some time about my work as a human rights intern stationed in what I had been told firmly was not a human rights organization. Despite what I had been told, I could not make sense of my experience as human rights work. This doubt of mine manifested as a burning desire to make sense of my experience and to justify that the organization was somehow connected to human rights. However, even as I inclined towards this mindset, I was confused as to what human rights work consisted in. One Earth Future Foundation never proclaimed to be a human rights foundation. Its mandate was to eliminate the root causes of organized political violence, not to fight human rights battles through direct advocacy.

In retrospect, reflecting on my experience, for all its extraordinary learning and professional development, I am comfortable recognizing that perhaps the category of human rights intern has been circumscribed too broadly. It might even be possible that in our world the category of human rights worker has lost effectiveness for the type of work that I have an interest in pursuing and for which the Faculty program provides.

These concerns no doubt coincide with more fundamental questions that arisen about the form and function of human rights. Increasingly, the substantive commitments of human rights have also been subject to uncertainty. Some believe human rights include a basket ranging from basic political and social rights to economic, civil and even environmental rights. As the status of human rights remain a matter of debate, so too do the politics required to implement them. The reality remains, however, that rights are presumed and invoked because the world continues to be a place which fails to provide the necessities of its citizens and a world which absent governance structures and institutions incites violence between people rather than facilitates peace.

In this way, debates waged over rights might more appropriately be considered concerns of justice. In The Idea of Justice, Amartya Sen recognized that the discourse of human rights had come to appear weak and frail. For one, without substance, rights are meaningless. Sen was more concerned with how the inability of the ideal the framework of rights to capture what mattered for human rights. While he has not gone so far as to attack the language of human rights, Sen has proposed capabilities as an alternative measure for addressing the ends of rights. Implicit in Sen’s attention to capabilities rather than human rights is a vision of justice: a political philosophical project to ground a commitment to the lives of others. More than writing about human rights, Sen has sought to create a theoretical framework for how to achieve substantively just outcomes in a world which fails so often to provide for the most vulnerable. In such a world, he make clear, the negative freedom of rights can often mean little. If one does  not have the capability to exercise rights, then what good is it to banter on about human rights? Not good at all.

Reading Sen has brought me a level of comfort with my work in human rights, because for him what matters is not human rights but the sort of things required for the production of a just society. I have come to terms with and embraced my work over the summer as a human rights intern not because I have attempted to ram my experience into some pre-conceived idea of what human rights must be about. I have come to terms with my work because I have come to appreciate the opportunity that I learn about the importance of governance for creating justice, to witness an organization committed to building governance structures in their absence, and even to appreciate the challenges of governance instantiated as those encountered by the organizations which seek to devote their own human capital in the most efficient and effective way possible towards achieving the aims of justice.

In this way, my human rights internship, like some of the other human rights program internships, was not so much a mechanism for achieving an exotic human rights experience. It was also not an experience which I took to stand out on my resume, though it may nonetheless come with residual benefits. For me, the internship was an opportunity to realize that if the world is to achieve substantive justice, a desire which I hold true and axiomatic, it will only achieve such justice if it can develop the systems of governance and institutions required to render moot the very function of the exotic human rights advocate.

I am grateful for what I have learned, most importantly the institutional knowledge that I now carry with me. I cannot help but reflect on the value of a human rights program in our time and place. Achieving justice is and will continue to be, in all its fronts and manifestations, a perpetual struggle, one that has no conclusion. Justice must be achieved, but it also must be defended.

I long for the day when I have the privilege to share the knowledge that I have learned and put it to use so as to ensure that justice is made real and brought to life. For if indeed I can someday reflect on my experience as a human rights intern with the recognition of the human capital that has been vested in me and which I deem responsible to share, then I will have succeeded not merely in being a human rights intern in its most blasé formalism: a notation on a school resume. I will have succeeded as an agent and contributor of our shared world. And this agency will not assume the seemingly glamorous struggle of human rights. It will assume the placid face of an administrative struggle.  Because it is through institutional and governance reform that visions of a fair and just society came be made into a contemporary reality.

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