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Fieldwork 101

By Somaya Amiri

I have spent the last three weeks supporting the Refugee Law Project’s (RLP) rapid research on the state of urban refugees, beyond the capital city, in Uganda. To collect our data, we travelled to various towns in the North and West of Uganda (in addition to Kampala). Although I cannot write much about this ongoing research project until its publication, I thought I’ll take this opportunity to write a reflection piece regarding the positive aspects of conducting fieldwork during my internship, some of its challenges, and how to best prepare for it.

Values of Travelling Through Work
To start, I would like to acknowledge that the opportunity of doing fieldwork or travelling for work does not always emerge, especially when resources are limited, and organizations have to ensure that only key members of the team are mobilized to achieve project goals. In addition, not everyone feels comfortable travelling for health, safety, or other important reasons – this can also be the organization’s concern for taking an intern to the field.

Image caption: Somaya excited to be in the regional field office!

I personally was really looking forward to an opportunity to travel through work as RLP has 11 offices across Uganda, serving refugees in various districts and refugee settlements. I communicated this interest with my manager, who also suggested that travelling to some of our offices in different parts of Uganda would really enhance my understanding of the refugee management system in the country. Therefore, when I heard that there was a prospect of travelling with six members of different departments for intensive research, I happily jumped on this opportunity. Luckily, the learning was exactly what I was hoping for and was missing during the internship. I was able to support the team with focus group discussions and one-on-one interviews with refugee communities and state/non-state stakeholders. This helped me understand some of the legal and policy issues that exist in Uganda regarding urban refugees and how they translate to the day-to-day lives of refugees and the host communities.

In addition, travelling with my colleagues and spending days with them in a completely new space allowed me not just to learn more about Uganda but also about my colleagues and their work. We had members from the legal (Access to Justice), Transitional Justice, and Gender & Sexuality teams. I spent hours talking with a colleague for the first time, despite seeing them every day in the hallways. I started to learn about their hometown along one of our routes, their family history growing up as the eldest sibling in the family, and their miraculous story of getting a major scholarship by cutting out a news advertisement. Another colleague told me about their childhood activities, the games they played as a kid growing up in rural Uganda, and their experience with isolation and racism during their studies abroad. With each story and laughter we shared, I felt more connected to the people around me and learned about what motivates them and their work today, beyond their titles.

Lessons Learned
However, not everything was always rosy; there were many challenges along the way too that I wish I had prepared myself for better.

Mental Health: Firstly, mentally hearing the stories and challenges of a vulnerable community is not easy, especially when you know that there is nothing you can truly do to directly help the interviewees. I knew these cases were only stories to me, and after an interview, I had the privilege of closing my notebook and laptop and taking a step away from everything. On the other hand, for our participants, these were the challenges that they had to battle on a daily basis. However, regardless of my privileged position, I have no control over how my mind reacts to such stories, especially when mixed with my own migration traumas. To cope with this situation, I contacted my support system and connected with my family through calls. I highly recommend having a counsellor with whom you could connect virtually throughout your journey. If I had to re-do this trip, I would ensure access to online counselling throughout my stay and be more mindful of my mental health.

Routines and Adaptability: Be ready to have your routine get disturbed. We had to travel on weekends most of the time and start working the next day, which meant we weren’t always well-rested. Sometimes, we also had to skip breakfast or lunch due to delays, cancellations, last-minute changes, or long interview sessions. We had to adapt to our ever-changing and sometimes unclear daily schedules. So, if you’re a person that likes their routines like me, prepare yourself ahead of time. Since I was warned about these issues, I packed up protein bars, nuts, and dried fruits, which kept my tummy satisfied and my mood uplifted! Also, as a coffee addict, I made sure that before anything started, I had my coffee and my bottle of water ready to go every morning. There’s always a way to find a modified version of your routine. Another important thing to note is being aware that there might be times when you’ll work until late evening or have to wake up very early, which adds up to restlessness – so take the night easy. Last but not least, your shower routines might also be affected due to a lack of clean water, warm water, or just water, especially in smaller towns or villages. Make sure to find ways to mitigate this by packing some hygiene supplies such as wipes and plenty of clean underclothing in order to avoid potential health issues.

Image caption: (L-R) David, Somaya, and Micheal at the Mbarara regional office.

Work Friends and Saviours: Although there were challenges along the way, I still was able to really enjoy the fieldwork because of my two incredible friends and colleagues. These were two other legal interns who were part of the team, whom I already knew and am very close with. We spent hours after work talking, going for dinners, and sometimes exploring the towns. Oh, not to mention they always helped me to usher the geckos out of my room – although not without a good laugh at my fear of geckos – which allowed me to fall asleep like a baby! So, if you have colleagues who you are close to and could travel with you, be ready for some wonderful bonding time!

In a nutshell, if you get an opportunity to travel through work and gain more exposure, I would highly recommend it as it can truly add value to your learning. There will surely be some challenges along the way, but you can make it work with some support, preparation, and flexibility.

Queer Activism in Tunisia

Image caption: View from the rooftop of a carpet store in the Medina of Tunis.

Setting the Scene

When I was on the plane crossing the ocean from Canada to Tunisia, I reflected on the fact I was landing in a country that penalizes sexual acts by three months to three years in prison (Article 230 of the Tunisian Penal Code). I must admit I was not expecting to learn more about queer activism in Tunisia than any of the other countries I’ve travelled, considering I assumed the political climate was too dangerous. Writing this article is important precisely because I did not expect to be writing it.

After explaining my positionality and providing a brief background on the legal context and existing socio-economic studies about the Tunisian LGBTQ population, I will share the activism I witnessed in my first two months in Tunis and reflections about intersectionality and inclusion. Key moments included meeting the screenwriter for the first queer play “TranStyX” in the Arab world (2018), seeing the first queer play “Flagranti” staged in Tunisia (2022), attending an LGBTQ+ refugee focus group discussion through my internship with the UNHCR, attending an art event hosted by the Argentinian and British embassies for queer artists, and celebrating pride month. Although my perspective tells a fragmented, superficial view of the reality in Tunisia, I defend writing this piece because it will hopefully foster further learning and difficult discussions. Preconceived notions of a place are dangerous when they are so entrenched you do not realize they exist. My assumptions were false. Tunisian LGBTQ organizations, such as Mawjoudin and Damj, are working on defending and promoting queer rights, and I am thrilled and humbled at the opportunity to be learning from activists in Tunis.

Since I hope this article will be read by people not necessarily familiar with the topic, I want to set the groundwork for common terminology. Although often confused as interchangeable, sexual orientation is fundamentally different from gender identity. Sexual orientation refers to the gender or genders a person is sexually attracted to. Gender identity refers to a person’s gender identity or expression. Therefore, while terms including “gay,” “bisexual,” and “asexual” are used to describe sexual orientation, terms like “woman,” “man,” or “non-binary” are used to describe gender identity. Finally, the word “queer” is an all-encompassing term signifying that a person belongs to the LGBTQ+ community, which can refer to sexual orientation or gender identity or both.

Positionality

Positionality refers to one’s position in the arbitrary but quite naturalized reality of socio-economic hierarchies and geopolitical privilege. As a person who identifies as a white cis Canadian woman who identifies as part of the queer community,  I have multiple privileges which likely influence how I understand the world. For the purposes of this article I mention only three.

Image caption: A shopowner (left) and a passerby sit looking at his shop across from the Zitouna Mosque.

Firstly, I have the privilege of coming from a certain country where LGBTQ+ rights are recognized. This not only affords me legal protection back home but also a certain degree of social protection abroad. As I learned in Ecuador, the country on my passport also somehow offers me flexibility which is not always afforded to locals. In other words, since I come “from elsewhere,” then in some cases it is easier for people to come to terms with my sexual orientation than if I was a neighbour coming from the same culture.

Secondly, as someone who is cis-gender, my gender identity aligns with the sex I was assigned at birth. This means that seeing me on the street will tell you nothing about my sexual orientation, and it is also easy for me to “hide” my queerness in order to protect myself, as I wrote about regarding my experience in rural Kenya. Trans or gender non-conforming people face more violence than cis-gendered people all over the world in part because their sexual orientation is erroneously deducted from their outwardly presented gender identity. (I say “erroneously” because as mentioned above, sexual orientation and gender identity are not the same, which means one can be trans without being gay, even though people often assume sexuality based on gender expression.)

Thirdly, I have the privilege of knowing I am legally protected somewhere. The same may not be said for certain individuals born in countries with little to no prospects of having the legal right to love who they love, and even less to marry who they want to marry. Even if there are countries these people could technically go to have legal protections, moving is expensive and visa access is limited. Psychologically and emotionally, knowing I can hop on a plane to Montreal and live my romantic life without fear makes a world of difference.

I note these privileges to ground this post in a certain perspective. For Tunisian accounts of queer life in Tunisia, see Nawaat’s article “Protests in Tunisia: Queer Activists on the Front Lines,” 42 Degrees article “Self-reconciliation, self-acceptance: Interview with Khawla,” New Frame’s article “The realities of being queer in Tunisia,” and Where Love is Illegal personal testimonies. In order to draw guidance from some of these voices, I had three Tunisian members of the queer community provide me with feedback on this article before publishing. I did this in order to both verify that the information I was sharing was accurate but also to make sure they felt they were reflected in the forthcoming representations I share.

Image caption: The Kasbah (or “citadel”) of Tunis is now the site of government headquarters, although the Tunisian Parliament was recently dissolved a few months ago.

Legal and Social Context

Tunisia’s legal context entrenches social discrimination and vice versa. Highlighting laws and statistics before diving into the activist scene emphasizes the extraordinary context in which activism takes place.

The legal context in Tunisia continues to sanction same-sex relationships, specifically sodomy, punishable by up to three years in prison. Article 230 of the Tunisian Penal Code criminalizes sexual practices between two individuals of the same sex and Article 226 and 227 for “indecent exposure” and “indecent assault.” Dating from French colonial laws in 1913, this Penal Code contradicts the rights entrenched in the 2014 Constitution, which arrived a century later. The 2014 Constitution protects privacy in Article 24 and equality and non-discrimination in Article 21. Despite the Constitution, the 1913 Penal Code has not yet been repealed despite ardent efforts by activists. The book by human rights activists Ramy Khouili and Daniel Levine-Spound, called “Article 230: A History of the Criminalization of Homosexuality in Tunisia” is one such effort.

Although compared to its neighbours Tunisia is often considered a relatively safe place to be part of the LGBTQ community, these laws make it difficult for organizations to create a meaningful community that is not fragmented, considering the legal dangers posed. Article 230 continues to be applied in Tunisia, as you can read about in a story covered by Democracy in Exile‘s “The ‘Nightmare’ of Being Gay in Tunisia.” In order to prove sexual intercourse between men, the state even engages in rectal examinations. The play “Flagranti” I attended had a scene depicting how degrading such examinations can be. Emotionally, they take a toll. As one person told me, “I’m a criminal for letting my poor heart fall madly in love.”

Activists advocating for Penal Code reform are often met with demands for precise statistics. Unfortunately, the absence of quantitative data is used as a disqualification argument for investing in legal reform or social programs. During my first week in Tunisia I spent time at a feminist organization where I read three studies about LGBTQ rights. As explored in the next few paragraphs, these studies shed light on violence, discrimination, and psychological impacts linked to sexual orientation or gender identity. They also highlight the great work of NGOs committed to improving conditions for LGBTQ people, and are a testament to data gathered by NGOs in a context where queer activism cannot rely on state-funded research. 

The 2018 “Study on Violence Against LGBTQ Individuals” was a result of collaborations between three organizations called Mawjoudin, Damj, and Chouf.  This study interviewed 300 individuals identifying as part of sexual and/or gender minorities, and documented experiences of physical, sexual, verbal, and psychological violence as well as soci0-economic discrimination. Over half of those surveyed had experienced verbal harassment in public spaces in the year preceding the survey and nearly 24% were physically threatened with a weapon or had experienced a murder attempt in the last 6 years. 51.4% of respondents had attempted suicide, 49.3% self-harmed at least once in their lifetime, 36% often felt tense, stressed and anxious, and 27.2% were unhappy and depressed. Blackmail in this context refers to threatening a victim to reveal their identity to the police or others to ensure their silence. The survey found that more than a quarter of sexual touching and rapes were obtained by blackmail. In one discussion with an activist, I heard about a landlord using blackmail (“I’ll tell the police about your sexual orientation if you dare report me”) as a way of keeping an extra month of rent. 

Seeking a need for more information, Mawjoudin completed a demographic study of the socio-economic situation of LGBTQ+ people in Tunisia, “LGBTQ+ People in Tunisia” in 2020. Conducted with 288 individuals, one important finding of this study was that 13.2% of people identifying as LGBTQ+ have found themselves homeless for a period of time. Housing discrimination is only one indicator of difficulties faced by this diverse population. The National Institute for Statistics of Tunisia found that 15.1% of the general population holding a university degree didn’t have job in the first trimester of 2020, but this survey found that 74% of LBGTQ people surveyed did not have a job despite over half holding a university degree. In all categories trans individuals fared worse.

The third and final study I read, called “Cartographie des sites de population Transgenre” or “Mapping of Transgender population sites” (my translation) was completed in 2019 by L’Association Tunisienne de Prévention Positive, an organization fighting against discrimination for those living with HIV/AIDS. Considering the dangers associated with speaking about being transgender, their pool of 400 transgender interviewees across Tunisia was impressive in its own right. While all participants identified as being either trans or being born in the body of the wrong sex, only 5.1% of respondents had requested a change of sex in their civil status with the authorities. 71.6% declared having been verbally abused at least once in the 12 months preceding the study because of their identity, the majority (88.3%) citing strangers as being the people who verbally abused them, followed by police officers (57.1%), family members (51.9%), sex workers (18.2%) and paying sexual partners (14.3%). With limited options for stable employment, 27% of those interviewed reported being sex workers. On the positive side of things, 99,5% of those surveyed knew of HIV/AIDS.

These studies are examples of increasing LGBTQ visibility in Tunisia. Although I have heard both positive and negative things about the government since the 2011 Revolution, one thing Tunisian society benefits from is an extremely active civil society that pushes the boundaries on public discourse. By way of example, the Civil Collective for Individual Liberties (CCIL) was created in 2015, includes more than 40 NGOs, and has been advocating for LGBTQI rights. One action it took was to draft two alternative Universal Periodic Reviews (UPR), or reviews of the human rights records of all UN Member States to the UN Human Rights Council, about the LGBTQ situation in Tunisia. While many countries have laws similar to Tunisia’s (in)famous Article 230, not all have the same relative safety for NGOs to publish these studies.

Challenging Assumptions 

My prior knowledge of the legal context utterly misguided my assumption that there would be a void of queer activism in Tunis. To add an element of texture to the glum statistics above, I now turn to the lively LGBTQ+ scene I witnessed in the first two months in Tunis, starting with a wholesome story about where I live.

“Medina” translates to “old town.” Dating from the year 698, or approximately 1500 years ago, the Medina of Tunis is a UNESCO world heritage site due to its impressive history. On the southeast side of this Medina, you will find a little blue house tucked inside the labyrinth of tiny streets with bougainvillea bushes and jasmine flowers growing around the door. That’s where I live.  Since people call the house “home” for different amounts of time, the next roommate is picked by group consensus. Completely by fluke, we are a majority queer household in the most traditionally Muslim part of the city. Let that sink in for a moment. My house is a safe space and amenable to meaningful conversations about queerness and experiences related to LGBTQ issues, right in the hustle and bustle of “traditional” Tunis. Thanks to my quick integration as part of the household, my four French and Tunisian housemates kindly introduced me to the city, opening doors to not only meaningful friendships but to LGBTQ circles and events. (For an inside scoop on the house and Tunisian adventures see my personal blog where I wrote a post about my first month in Tunis).

During the second week of living at the house, my housemates decided to hold a potluck to watch the sunset from our rooftop. One of my housemates is a queer Tunisian activist and human rights defender, currently writing a book about love between two women. She told me it was important to mention in this article that difficulties faced by queer people impact everyday life, especially regarding harassment of police, misogynistic comments, and the persistent pressure to stay silent. When I got home from work and head to the roof for a glass of wine with the potluck invitees, I met some of her friends. One of them just happened to be the Tunisian man who wrote and directed the first queer play in the Arab world, “TranStyX” a few years ago (now a book and art project), which addresses transgenderism, near-death experiences and the afterlife in a one-person show, explained well in this interview. He explained with passion and dry humour what encouraged him to write it and its dystopian sequel, called “Church of Euthanasia.”

In two different conversations, both my housemate writing the book and this playwright paving the way for queer theatre made clear they are using their artistic mediums as venues for outreach, in part because they would have benefitted from it when they were kids. In the words of one, “I’ve been trying to do something, not for myself but for the young me, the people who still have a chance to live in peace as I’ve always dreamed to live.” Making information available for younger generations seems to be a main motivation not only for them, but for other activists in Tunisia. For example, Instagram activists @khookha.mcqueer and @yulia_bouteraa have thousands of followers and use social media to raise awareness about their daily lives as trans people. The high number of youth who participated in the surveys above may indicate an increased willingness to discuss these issues.

Image caption: Street art between Marsa and Sidi Bou Said neighborhoods, both upper-class areas where most foreigners live.

During my third week in Tunis I went to see the play called “Flagranti” at the Rio Theatre in Tunis, organized by the local grassroots NGO called Mawjoudin, which translates to “We Exist.” As a side note, Mawjoudin is a grassroots trailblazer in terms of human rights, considering in 2018 it organized the first queer film festival in all of North Africa, and continues to do impressive work advocating for the rights of sexual minorities. (Note that before Mawjoudin’s queer film festival there was a feminist festival organized by no-longer existing organization, Chouf).

“Flagranti” was written by Essia Jaibi and tells the tale of a group of friends who report a disappearance to the police and are placed in police custody when the investigators discover their sexual orientations during an interrogation. The play was an edge-of-your-seat, heart-wrenching, humanizing, utterly raw play about being gender non-conforming in Tunisia. Considering the politics of the conservative country, I was both surprised and found myself beaming at the more provocative scenes which gave me goosebumps. Mindful of the heavy subject, the play included both humorous moments and education about the legal context, encouraging empathy and understanding that queer people in Tunisia are people who deserve to live with dignity.

This play provided a glimpse into understanding the wider dynamics of activist work in Tunisia. Firstly, the cast and crew were extremely courageous considering the play directly critiqued the government’s laws. Although some made off-handed jokes about the possibility that an Islamist mob might attack the theatre at the end of the play, there was tangible apprehension underlining those lighthearted attempts at humour. There is always a fear that such work can result in violence. Secondly, while the evening brought together people mostly between the ages of 18 and 35 (from my best guesses), one of the most talented actresses in the piece was clearly much older, pointing to the important groundwork that had to be set in place for decades before such a piece came together as it did. Today’s activism does not stem from a vacuum. Thirdly, this event brought together the LGBTQ community in Tunis, and for the first time I saw queer people expressing their love for their partners in the closed theatre — a light touch on the arm, eye contact only found in relationships — that I had not seen in public before. Fleeting moments like these in events held only occasionally indicate the importance of these events and the need for a wider network of safe spaces.

Beyond grassroots NGOs, international organizations and embassies are paving the way for discussions about LGBTQ issues. Although we should not forget that the Penal Code article criminalizing same-sex relations stems from a colonial law put in place by the French, it would be an incomplete account of French activities in Tunisia to end the story there. For example, the Institut français de Tunisie (IFT) is a French institution mandated to carry out linguistic and cultural events in the spirit of upholding cooperative agreements between France and Tunisia. After going to an outdoor concert at the IFT of an artist duo reviving traditional Tunisian music mixed with electronic modern beats, I reflected on the fact that this exploration of Tunisia music was financed by the French state. Although I have personally not attended, the IFT hosts LGBTQ-themed workshops, discussions, artistic expositions, films, and performances in collaboration with local NGOs. By no means do I defend French colonial pursuits from years past, nor continuing neocolonial ideas all-too-present on the continent (a common topic of discussion in our house). However, such initiatives are worth considering when it comes to financing LGBTQ events and fostering the LGBTQ community in Tunis.

Thanks to a partnership between the Embassy of Argentina and the Embassy of the UK, during my sixth week in Tunis I spent a magnificent evening celebrating queer Tunisian artists during pride month. L’Art Rue supports local artists and organizes art events in the Medina.  My housemate works at L’Art Rue and set up a magnificent evening at the British Embassy after being contacted by someone from the Argentinian Embassy. Coincidentally, when I arrived at the cocktail I met not only a UNHCR colleague whose partner worked with my housemate on organizing the event (small world), but also the man who wrote TranStyX and the main actress who starred in it.

The art was varied and meaningful. The installation included paintings, drawings, photography, sculptures, film, and other mixed-medium pieces. Although most people enjoyed the photography most, my favourite was a realistic portrait of two women wearing burkinis looking in each other’s eyes. Another aspect I enjoyed from the evening, beyond casually meeting two Ambassadors, was meeting a fashion designer with impressive makeup, wearing an outfit he designed that mixed aspects of traditional men’s and women’s clothing. He was a walking art piece!

Intersectional Reflections

Intersectionality refers to how different privileges and oppressions intersect, including class, race, sex, gender identity, sexuality, physical ability, age, immigration status, language, education, and in some cases political affiliation, caste, etc. An intersectional approach is more likely to capture the complexities of LGBTQ  realities than by looking only at membership in the LGBTQ community.

Classism intertwines with other forms of social organization, influencing how LGBTQ people live their lives. One person I know went so far as to say, “only the rich can be gay here,” referring to the fact that “safe” restaurants where one can go on dates are relatively expensive. One of the “safest” bars called Yuka is owned by visible members of the LGBTQ community, found in the suburbs of the city in the posh Gammarth district on the ocean. So far, that’s the only place I’ve danced with friends and colleagues in a non-heteronormative environment. Taking a step back, my entourage is perhaps one of the reasons why my impression of Tunisian queer activism is generally positive, considering my foreign friends have purchasing power and my local friends are university educated.

Image caption: one of many such doors in the Tunis Medina.

While classism plays an important role in Tunisian society, it bears mentioning that some Tunisians I’ve met here across are so frustrated by the status quo that they cannot imagine not living outwardly as themselves, regardless of their social class. While some have supportive families when it comes to their queerness and others have lost their families for the same reasons, this does not appear to be based strictly on class lines. Recalling the Mawjoudin study summarized above, one of the aspects I found particularly interesting was that respondents and their parents were well educated, which challenges the assumption that educated people are more accepting of sexual diversity. Queer activists in Tunis who defy social norms are found in various neighbourhoods with varying income levels and backgrounds. There is not just one prototype, and suggesting as much is a danger to understanding the diversity within the community.

Still, making progress for LGBTQ rights in Tunisia might mean breaking down assumptions about class. When I first arrived in Tunis, some well-intentioned women told me that the area I lived was so uneducated/dangerous/simple that they had never visited because it was too traditional for feminist work to take place. Although perhaps I’ve been lucky, part of the reason I stayed in this area of the city was because the locals know me, smile when I walk by, teach me arabic phrases, and help me find taxis. I do not feel in danger in this area as long as I respect the local dress code of long pants and say “salem!” whenever I walk by. In fact, I might go so far as to say these supposedly uneducated/dangerous/simple people are more willing to consider different points of view than those unwilling to have conversations with them based on their perceived social class. Just like individuals are hierarchized, so too are activist organizations. For example, some feminist organizations have been boycotted by university students for practicing a sort of elitist feminism that does not include all women – notably lower class, Muslim, or trans women. Other activist organizations roll their eyes when these elitist organizations are named, and the concept of “inclusivity” takes on a whole new meaning. Nobody is “too poor,” “too uneducated,” or “too religious” to discuss equality. If activism only benefits the empowerment of upper-class LGBTQ people, then from a structural perspective, the impacts are limited in scope.

Image caption: Walking home from work one day in the Medina of Tunis, I see the common sight of a man smoking shisha.

My reflections about class are not fully formed. They are further complicated when the conversation expands beyond the urban context of Tunis to larger Tunisia, which I have a limited understanding of considering I’ve only lived in Tunis and only lived here for less than two months.  Just like in other places I’ve lived, from Ecuador to Canada to Kenya, understanding the fight for equality requires discussions about class. When it comes to LGBTQ causes, I’ve found these dynamics are sometimes more complex than at first glance.

Although I do not want to dwell too long on religion, considering I have a limited understanding of Islam and how it shapes Tunisian society, I do want to make clear that some of the most ardent feminists I’ve met here wear veils, and some LGBTQ activists go to the mosque. (Note: wearing the veil is not obligatory in Tunisia, and from my very rough estimates, perhaps only a third of women in Tunis I’ve seen wear the veil). The reason I mention this is to counter the narrative that religious people cannot be progressive. In fact, I spoke more openly about my sexual orientation with a Muslim Tunisian woman dressed from head to toe in black garments than to an atheist foreigner woman on a beachfront in a bikini, because I felt safer doing so with the Tunisian activist than with the French tourist. While religion plays a role in shaping our understanding of equality, so too does family upbringing, social circumstance, education, employment, friend group, personal interest, etc. etc. etc. In short, stereotypes are harmful when it results in the exclusion of certain voices which have contributions to make to activist efforts.

Image caption: Every year thousands of individuals perish in the Mediterranean attempting for a better life in Europe.

I am in Tunis completing an internship with the UNHCR, the United Nations High Commissioner for Refugees. Although the internship experience is not directly relevant to this article, there are key aspects of my work that relate to the topic. Working at the UNHCR with refugees from countries as diverse as Libya, Algeria, Somalia, Eritrea, Sudan, Iraq, Chad, Niger, the Congo, Syria, and others has shed light on how race and immigration status complicates social inclusion in the queer community.

Tunisia has a complicated history with race and continues to socially entrench beliefs about skin colour that are contrary to goals of inclusion. I heard multiple accounts of racism in various settings, but I’ll only provide one example for brevity. I learned during a conference about unaccompanied migrant children that racism (alongside lack of identity papers) is one of the main factors which detrimentally impacts unaccompanied migrant children’s educational prospects. This population is already vulnerable enough without having to think about their skin colour, but any intervention with the objective of assisting them must consider that despite being children, they experience racism, which either directly or indirectly alters their survival tactics and interest in pursuing further education.

While I am unable to discuss details of our interactions for reasons of confidentiality, I will say that I attended a focus group discussion in which trans, gender-nonconforming, and gay-identifying people with refugee status recounted their experiences fleeing countries where they experienced death threats and violence for their sexual orientations or gender expressions. Queer refugees or asylum seekers from Sub-Saharan Africa face difficulties above and beyond queer Tunisian nationals due to compounded factors including identity, race, economic opportunities, and increased levels of stigmatization. Perhaps the most direct, however crude way to put it, is the following: it’s hard to be queer in Tunisia, especially if you don’t “look” like you fit in the heteronormative mould, are black, have non-national immigration status, and have experienced trauma for factors related to your queerness.

UNHCR Tunis has an extensive referral program which, after completing individual assessment counselling, points people with refugee or asylum seeker status to organizations that can support them, including LGBTQ organizations. That is a major step forward. One of my coworkers at UNHCR used to work at Mawjoudin, and has played an important role in ensuring the refugee protection team is properly trained on gender and sexual diversity. That is another major step forward.

While much more could be said, I’ll tie but this section by concluding that one thing I’ve learned from my experience at UNHCR Tunis is that a particular effort must be made to include populations that may not hear about word-of-mouth programming for LGBTQ events. Inadvertent exclusion is felt as exclusion all the same.

Image Caption: Art on the cover of the 2020 Mawjoudin Study, “Cartographie.”

Final Thoughts 

Learning is an ongoing process which requires questioning our assumptions and embracing our ignorance in the spirit of learning more. I learned more about queer activism in Tunis in two months than I did in two years in Montreal, and without even coming to Tunis for that purpose. Hopefully, my reflections will encourage readers to consider what assumptions or biases they hold in order to collectively unlearn and relearn for a more honest approach to activism going forward.

Activists in Tunis are using various tools at their disposal — reports, statistics, plays, artwork, books, events, local and international support systems — to make noise about the LGBTQ community. Although Article 230 of the Tunisian Penal Code continues to be a significant barrier to empowerment, courageous projects are raising questions about heteronormative and cis-gender expectations. These projects are taking place in a context where pan-African struggles are gaining momentum on the global stage, rightfully demanding to be heard. 

Going North

Sarah NixonBy Sarah Nixon

The views expressed in this blog are my own.

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

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

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

View on the water in Iqaluit

 

The tundra with purple saxifrage

 

View from two of the schools (!!)

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

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

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

Evening view in Iqaluit

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

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

 

 

 

The Right to Housing in Canada

Kazumi MooreBy Kazumi Moore

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

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

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

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

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

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

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

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

Taryn WilkieBy Taryn Wilkie

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

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

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

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

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

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

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

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

Human Rights and the Importance of Resources Beyond the Law

By Hannah MacLean Reaburn

The views expressed in this blog are my own.

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

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

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

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

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

Framing the Issue: Vulnerability or Structural Violence?

Ellen SpannagelBy Ellen Spannagel

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

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

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

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

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

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

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

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

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

[4] Ibid.

[5] Ibid.

Treaty Paradigms

Bryce LansdellBy Bryce Lansdell

As mentioned in my prior blog post, apart from working as a teaching assistant for the Indigenous Law Centre’s summer course, I also had the opportunity to work as a curriculum development research assistant. The Indigenous Law Centre is in the process of developing an accredited certificate program in Indigenous and Aboriginal law, which is intended to accept students for its inaugural year in the summer of 2022. Currently, the Indigenous Law Centre is in the process of developing course proposals and syllabi to be submitted to the school for approval and accreditation.

As part of my internship, I was invited to help assist in developing some of these courses by compiling literature reviews and developing proposals for possible class content and weekly learning objectives. Helping to conduct research and compile sources on various topics within Indigenous and Aboriginal law greatly expanded my research skills and increased my familiarity with different scholars and academic sources. Conducting research also opened my eyes to the breadth of resources—whether podcasts, videos, or interview transcripts—that are available online which allow one to listen and learn directly from Elders and their teachings.

The first and primary proposal that I worked on was a course about treaties. Having taken Indigenous Legal Traditions at McGill with Prof. Aaron Mills, I had received a brief introduction to understanding different foundations and paradigms regarding treaties between Indigenous and settler communities, with the topic having piqued my interest quite a bit. In turn, I welcomed the opportunity to learn more by conducting research.

Although I do not have space here nor the personal capacity to justly represent the Indigenous treaty paradigms that I researched, I found the foundations and starting points of Indigenous treaty making to be both radically different from what I was accustomed to, and very humbling and inviting. One article that has stuck with me described treaty as a process of two separate peoples “growing together from the earth”, by living in relationships of kinship, mutual respect, and gift giving.[1] These relationships were created and cultivated in part through ceremony and were renewed and altered according to the varying needs and gifts of the parties.

In reading primary sources from settlers about treaty making, I was fascinated how the practices of gift giving, peace pipe, and exchanging wampum had been often adopted by both parties in early treaty making. However, while I found some accounts of attempts at respectful interaction, the more the dominance of the Canadian state grew, the more a colonial understanding of treaty—as a contract entailing fixed and written obligations with disputes to be resolved in colonial courts—began to be imposed. Although this latter treaty paradigm is largely now the dominant narrative, Indigenous understandings of treaty never disappeared, even if they were forced underground.

As I conducted research, I felt grateful for the sheer amount of both academic and non-academic work that is being done to revitalize Indigenous treaty paradigms. A common theme of many of these sources is the importance of language in housing fundamental understandings of the world. In turn, I would like to end with some of the Cree words that I have learned from the Treaty Elders of Saskatchewan. Although all these words deserve far longer explanations than I will afford here and my understanding is only approximate, I hope that this can serve as a very condensed introduction to some of what I have been learning.

  1. iyiniw miyikowisowina” (“that which has been given to the peoples”) and “iyiniw sawêyihtâkosiwin” (“the peoples’ sacred gifts”).[2] These terms speak of the special relationship that Indigenous peoples have to the land as first peoples, and the gifts that they have received from the Creator due to this relationship. This special relationship to all of creation was nourished and sustained through ceremony by various peoples in Saskatchewan.
  2. Miyo-wîcêhtowin (“having or possessing good relations”). This entails living out a vision of life of peace, good relationship and sharing by Indigenous peoples towards others in response to requirements of the Creator. This good relationship which informed treaty making was “to consist of mutual ongoing caring and sharing arrangements between the treaty parties, which included a sharing of the duties and responsibilities for land, shared for livelihood purposes with the newcomers.”[3]
  3. Wîtaskêwin (“living together on the land”). From my understanding, this encompasses a perspective of how through ceremony and relationship, peoples who were formerly strangers could come to live in harmony and live out the responsibilities that being on the land entailed, while still remaining distinct peoples.[4]

[1] Gary Potts, “Growing Together from the Earth” in Diane Engelstad & John Bird, eds, Nation to Nation: Aboriginal Sovereignty and the Future of Canada (Don Mills, Ont: House of Anansi Press, 1992) 199.

[2] See Harold Cardinal and Walter Hildrebrandt, Treaty Elders of Saskatchewan (Calgary: University of Calgary Press, 2000), 10-12.

[3] Ibid at 13.

[4] Ibid at 39.

The Shortcomings of Bulgaria’s Criminal Justice System for Children

Kendra LandryHighlighting key issues from BCNL’s “Can Justice in Bulgaria be Child-Friendly? A Contextualized Analysis of the Steps, Safeguards, and the Reluctance in terms of the Implementation of Directive 2012/29/EU and Directive 2016/800/EU”

Written by: Kendra Landry

The criminal justice system for children in Bulgaria has long been criticized for its lacunae – especially with respect to the best interests of children suspected or accused of committing crimes. There have been “several attempts” to reform this system in recent years; however, despite minor legal amendments, the system has remained mostly unchanged.[1] In their 2021 report “Can Justice in Bulgaria be Child-Friendly?,” the Bulgarian Center for Non-for-Profit Law criticizes the state for failing to meet the rights and needs of child offenders.[2] The Center calls for the implementation of Directive 2012/29/EU and Directive 2016/800/EU into Bulgarian law; the former Directive explicitly deals with children who are victims of crimes, while the latter targets children suspected or accused of committing crimes. In this blog post, I will focus on child offenders and Directive 2016/800/EU; I will briefly outline the Directive’s key points, before discussing on-the-ground realities in Bulgaria and their incompatibility with the obligations set out therein. As it is currently conceptualized, the Bulgarian criminal justice system for children does not account for the best interests of child offenders; legal, procedural, and systematic reform is sorely needed to implement the principles outlined in 2016/800/EU.

Directive 2016/800/EU: Safeguards for Children Suspected or Accused of Committing Crimes

Directive 2016/800/EU specifically deals with the rights of children under the age of eighteen suspected or accused of committing crimes. The Directive aims to “establish procedural safeguards to ensure that children … are able to understand and follow [their criminal] proceedings and to exercise their right to a fair trial, and to prevent children from re-offending.”[3] It confirms that the best interests of children are “always a primary consideration” in cases of child offending,[4] and that the child justice system must aim to reintegrate these children into society.[5] Among other rights for suspected or accused children, the Directive underlines the right of access to a lawyer,[6] the right to not incriminate themselves (the right to remain silent),[7] the right to the protections of privacy,[8] and the right to information.[9] Moreover, it holds that, wherever possible, legal professionals who work with children should have specific competence in the field and access to special training – whether in children’s rights, child psychology, appropriate questioning techniques, etc.[10]

One of the Directive’s most important points is its call for the ‘individual assessment’ of suspected or accused children, to “identify their specific needs in terms of protection, education, training and social integration, to determine if and to what extent they would need special measures during the criminal proceedings, the extent of their criminal responsibility and the appropriateness of a particular penalty or educative measure.”[11] The Directive sets out the primary considerations of the individual assessment: the child’s personality and maturity; the child’s economic, social and family background; their living environment; their vulnerabilities; etc.[12] Article 7(5) holds that this assessment should be conducted as early as possible, so it can inform judges, prosecutors, and other authorities at the earliest stages of the trial.[13] Article 7(4) explains that the individual assessment will serve to inform measures taken to benefit the children, to inform all other decisions made in the course of criminal proceedings (including sentencing), and to assess the appropriateness and effectiveness of measures ordered.[14] The Directive also explicitly states that derogation from this obligation of individual assessment is only warranted in limited circumstances when compatible with children’s best interests.[15] As childhood criminality is often motivated by poverty and other social factors, decisions made with respect to children should be informed by their life circumstances, with an eye to their best interests and their integration into the country’s social fabric.

Children are particularly vulnerable when confronted with the justice system, especially when they are already marginalized, disadvantaged, abused, or mistreated. The obligations outlined in Directive 2016/800/EU are fundamental to the fair administration of justice.[16] The on-the-ground realities in Bulgaria, however, are a far cry from the principles elucidated in the Directive; currently, these vulnerable parties are further prejudiced by the child justice system, its actors, and the measures taken to reprimand them.

The Child Justice System in Bulgaria: Present-Day Realities

Current realities in Bulgaria stand in stark contrast to the aspirations set out in Directive 2016/800/EU. The country’s child justice system is underpinned by the Juvenile Delinquency Act, which does not require that the best interests of children be assessed at any stage during criminal proceedings.[17] Though the Act requires child offenders to be handled separately from the country’s penal justice system, it is still heavily focused on punishment and detention. In 2018, Velina Todorova wrote that the most common measure ordered under the Juvenile Delinquency Act is placement of accused children in correctional institutions; the Act, then, can be described as a “specific quasi criminal law.”[18] This punitive focus is detrimental to the children’s best interests.

Child offenders, and other children who behave anti-socially, are often at risk – these include children without parents or proper care and education; victims of abuse, violence, exploitation; etc. Their behaviour is often determined by their social environment. As Velina Todorova writes: “it is obvious a child could simultaneously be in need of care under [the child protection system] and the [juvenile justice system].”[19] However, currently, these systems are exclusive in Bulgaria; Todorova affirms that the child justice system suffers from important lacunae, such as “interaction with child protection policies and practices.”[20] The Minister of Labour and Social Policy has opined that the child protection system in Bulgaria is not geared toward children with behavioural problems; instead, the child justice system is often perceived as more suitable for young offenders than social work and social services.[21] However, as child offending is often engendered by social and socioeconomic factors, it is clear that children stand to benefit from the interaction of these two systems.

Likewise, in their 2021 report, BCNL affirms that the child justice system “does not function in coordination with the systems of education, health and social protection.”[22] This lack of coordination hinders the ability of the system to reintegrate children into society and has negative implications for recidivism. BCNL’s report affirms that the current legal system in Bulgaria does not provide for the education of detained children and does not offer reintegration programs.[23] This violates several rules of international law,[24] especially as children are remanded into custody for long periods of time, often exceeding the maximum periods prescribed by law.[25] This lengthy detention, which deprives children of all necessary supports, can traumatize (or retraumatize) them; they often turn to suicide in detention facilities, as they are stripped of human dignity and compassion.[26] Judges have attested that they often choose between institutionalizing children or sending them back to abusive and exploitative families.[27] In both cases, children’s education suffers (especially when compounded with their social alienation), which negatively affects their future prospects and best interests. Coordination between the child justice system and other key systems in Bulgaria is gravely wanting.

Moreover, Todorova explains that the lack of coordination between key systems in Bulgaria is underscored by the “underdevelopment” of these systems.[28] The child justice system, for instance, is plagued by a marked lack of resources, of personnel and training, of expert witnesses, etc.[29] This lack of human and material resources undercuts the country’s ability to achieve the objectives set out in Directive 2016/800/EU – especially the obligation to conduct individual assessments. Regional courts, for instance, are worried about whether they could practically afford more than one or two individual assessments per year.[30] This starkly contrasts the rules set out in the Directive – namely, that the obligation to conduct individual assessments cannot be derogated from unless derogation bolsters the best interests of the child.

Moreover, BCNL’s report affirms that even in rare cases where individual assessments are conducted, they are primarily used to obtain evidence to punish the child.[31] Conversely to Directive 2016/800/EU, the Bulgarian Code of Criminal Procedure has not explicitly stated the objectives of data collected about the lives of underaged children. BCNL affirms: “[the Code] is not explicit regarding the assessment and measures that could be beneficial for the child during the criminal proceedings – protection, education, etc.”[32] The goal of the individual assessment outlined in the Directive is not simply to collect data with an eye to punishment, but also to propose measures to benefit child offenders.[33] Moreover, the rare individual assessments conducted in Bulgaria do not provide sufficient information about each individual child and their life circumstances.[34] In interviewing several actors in the juvenile justice system, BCNL found that the reports seem to have been “drafted by means of copy-paste, as if it was the same child cloned in all these places.”[35] This type of assessment does not conform to the expectations of the Directive, which underlines the importance of individual assessments in ascertaining children’s protection, punishment, education, training, and social integration needs.[36]

In addition to the lack of individual assessments conducted to children’s benefit, the rights of accused children are often undercut by different actors within the Bulgarian justice system. For instance, Human Rights Watch reported that children are often manipulated and subjected to physical abuse by the police in the country,[37] which quashes many of the rights elucidated in Directive 2016/800/EU. Children are often tricked into incriminating themselves and their families as they are arrested, and even when they are interviewed after their arrests. In their report, BCNL explains the tactic of police and prosecutors who often summon children as witnesses and not as suspects to circumvent their right to representation.[38] BCNL affirms that in most cases, children are interviewed without lawyers in the pre-trial phase,[39] which runs counter to several rights listed in the Directive (the right to representation, the right to not incriminate themselves, the right to information, etc.).[40] This illustrates that when children are confronted with the juvenile justice system in Bulgaria, they must navigate a system ill-suited to their needs, and are often confronted with actors who actively undercut their best interests.

Conclusion:

Todorova affirms that Bulgaria “regularly receives recommendations to change the [juvenile justice] system from the UN human rights treaty bodies and mechanisms and also from the Council of Europe.”[41] In this blog post, I have illustrated several of countless poignant issues with the system, which run counter to the recommendations and obligations regularly received by the country. Directive 2016/800/EU needs to be better implemented into the Bulgarian legal system; in particular, individualized assessments are primordial to ensure respect for the best interests of children accused of crimes. Currently, the child justice system quashes children’s best interests, their educational aspirations, and their potential for reintegration into society. We must advocate for change, to benefit those among the most vulnerable in Bulgarian society.

[1] See Velina Todorova, “Juvenile Justice in Bulgaria: Reforms and Resistance” in Gillian Douglas et al, eds, International and National Perspectives on Child and Family Law: Essays in Honour of Nigel Lowe (Cambridge: Cambridge University Press, 2018) 283 at 283.

[2] See Bulgarian Center for Non-for-Profit Law, “Can Justice in Bulgaria be Child-Friendly? A Contextualized Analysis of the Steps, Safeguards and the Reluctance in terms of the Implementation of Directive 2012/29/EU and Directive 2016/800/EU” (2021) at 5, online (pdf): BCNL <http://bcnl.org/uploadfiles/documents/Child-Friendly_Justice_Bulgaria_Report_Eng.pdf>.

[3] EC, Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2018] OJ, L 132/1 at para 1 [Directive].

[4] See ibid at para 8.

[5] See ibid at para 9.

[6] See ibid at paras 25-28, art 6.

[7] See ibid at para 29.

[8] See e.g. ibid, at para 56, art 14.

[9] See ibid, art 4.

[10] See ibid at para 63.

[11] Ibid at para 35; See also the right to individual assessment, ibid, art 7(1).

[12] See ibid at para 36, art 7(2).

[13] See ibid at para 39, art 7(5).

[14] See ibid, art 7(4).

[15] See ibid at para 40, art 7(9).

[16] See ibid at para 41.

[17] See Todorova, supra note 1 at 284.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] See ibid at 289.

[22] BCNL, supra note 2 at 6.

[23] See ibid at 25.

[24] For instance, this contradicts Directive 2016/800 and Art. 2 of Protocol No. 1 to ECHR.

[25] See BCNL, supra note 2 at 25.

[26] See ibid at 26.

[27] See ibid at 11.

[28] See Todorova, supra note 1 at 291.

[29] See ibid at 290-291; See also BCNL, supra note 2 at 20-21.

[30] See BCNL, supra note 2 at 22.

[31] See ibid at 6.

[32] Ibid at 19.

[33] See ibid; See generally Directive 2016/800, supra note 3.

[34] See BCNL, supra note 2 at 20.

[35] Ibid.

[36] See Directive, supra note 3 at para 35.

[37] See e.g. Human Rights Watch, “Children of Bulgaria: Police Violence and Arbitrary Confinement” (1996), online: Human Rights Watch <https://www.hrw.org/legacy/summaries/s.bulgaria969.html>.

[38] See BCNL, supra note 2 at 16.

[39] See ibid at 33.

[40] See e.g. Directive, supra note 3 at paras 25-29, arts 4-6.

[41] Todorova, supra note 1 at 283.

A Case for Decriminalization of Homosexuality in Jamaica

Mehri GhazanjaniBy Mehri Ghazanjani

The highlight of my work at the HIV Legal Network was the opportunity to get involved in an ongoing project aimed at bringing a constitutional to Jamaica’s anti-sodomy laws. Jamaican law, and more particularly the Offences Against the Person Act (OAPA), criminalizes consensual sexual conduct between men (sections 76, 77, and 79). This statute has existed since 1864, when Jamaica was under British colonial rule, and has lasted since then despite Jamaica’s independence from the colonial rule in 1962. More recently, in 2011 and 2012, the Sexual Offences Act and the Sexual Offences (Registration of Sex Offenders) Regulations came into effect, requiring anyone convicted of “buggery” to be registered as a sex offender and to always carry a pass or face 12 months in prison and a J$1 million fine. These laws are collectively referred to as “anti-sodomy law.”

The Sexual Offences Act, therefore, has made Jamaican law criminalizing sex between men even harsher because conviction also means mandatory registration, and potential additional punishment, as a sex offender. Although in practice, there are few documented cases where the police or prosecutors in Jamaica have tried to charge individuals with “buggery,” it is undeniable that the mere existence of the law implies the possibility of prosecution. In addition, on a larger societal scale, it’s important to note the harmful effects of the law including the potential for its use as a pretext for harassment by police and the stigma, discrimination and violence that criminalization perpetuates and encourages.

Indeed, the anti-sodomy law is in violation of several rights guaranteed by Jamaica’s 2011 Charter of Fundamental Rights and Freedoms (e.g. the rights of Jamaicans to liberty and freedom of the person, security of the person (i.e., physical and mental integrity), equality before the law, non-discrimination on the ground of being male or female, etc.). Notably, Jamaica has recognized these human rights both in its own constitution and in international human rights treaties it has ratified. However, although according to the Jamaican Charter any person whose constitutional rights have been, are being or are likely to be violated, may bring a claim for the law to be reviewed, according to a “savings” clause in the Charter, laws relating to sexual offences are protected from constitutional review by the courts if they were in force immediately before the Charter came into effect. But if the law is “changed, adapted or modified in any respect” after the introduction of the Charter, then it is no longer insulated from such constitutional review and must conform to the Charter’s guarantees of fundamental rights and freedoms.

The case that the HIV Network is raising against the anti-sodomy laws argues that after the adoption of the 2011 Charter, the Sexual Offences Act and its regulations changed Jamaica’s criminal law regarding sexual activity between men to make it harsher and, hence, this means the law applicable to gay men’s consensual sexual activity is no longer the law that existed immediately before the Charter. Therefore, it must now conform to the human rights provisions guaranteed by Jamaica’s Constitution.

My work on the case involved two main steps: first, I looked at differences and similarities in sex offender registries (SOR) in various jurisdictions (Canada, the US, and Europe) and provided updates on the legal tests these jurisdictions have applied in their analysis of punition by researching and analyzing pertinent cases laws. More specifically, the implementations of SORs are punitive under three legal tests developed in Canada, the United States, and Europe. Although these tests were developed independently and in different jurisdictions, they all provide a framework from which the effects of SORs may be considered in exploring whether these laws impose criminal sanctions in the guise of administrative measures. These tests look beyond the legislature’s intent in creating the registry and consider what, in reality, its effects are on sex offenders. The approach adopted by the Supreme Court of Canada seems to be the most liberal perspective. In R. v. KRJ, the court suggested that prevention and punishment are not mutually exclusive and that a SOR can be punitive even if there is clear language that suggests it is only preventative [1]. This highlights the courts’ receptiveness to arguments based on the deleterious effects of sex offender registries on their registrants. In the US, in particular, some courts cast doubt on the true value of SORs and discuss the broad and destructive negative effects they can have on individuals’ lives and society as a whole [2].

This brings me to the second step of my work: I conducted secondary research of sociology and psychology journals to explore the real-life effects of sex offender registration on various aspects of offenders’ lives (e.g. employment, housing, mental health, social isolation) to demonstrate the continued punitive nature of these laws on the offenders. For example, studies suggest that among different types of felons, society tends to stigmatize sex offenders the most, so reintegration can be challenging for these individuals [3]. As a result, sex offenders often experience isolation, shame, depression, and apprehension due to the public registration requirement [4]. Further, in order to successfully reintegrate, an offender must conform to societal conventions by securing adequate housing, maintaining rewarding employment, forming positive interpersonal relationships, and avoiding recidivism [5]. Sex offenders are often stigmatized in society as the public nature of their offense leads to these individuals becoming labeled as pedophiles or perverts by their communities even if their offense did not involve minors or sexual assault. These labels and stigmas, as will be discussed below, inhibit their ability to successfully reintegrate [6]. More particularly, in Jamaica, registrants are required to carry on their person at all times a Certificate of Registration of Sex Offender. In addition, because of the availability of the information to a number of parties such as employers, the private nature of registries can often be meaningless once information is released in a community. These elements of SORs make them highly punitive in nature.

Our hope is that the Court will ultimately decide the SORs have so fundamentally changed the anti-sodomy laws that the laws are no longer the ones that were put in place before the adoption of the Charter (and hence saved by the savings clause). The goal of the challenge is to have the court bring the law into conformity with the Charter. I am glad that I will continue my work on this case at the HIV Legal Network as a volunteer and will observe new developments as the case unfolds in the future.

[1] R v KRJ, 2016 SCC 31, at para 22 [KRJ].

[2] See Smith v Doe, 538 US 84, 123 SCt 1140 [2003].

[3] Fox, K.J. (2015). Contextualizing the policy and pragmatics of reintegrating sex offenders. Sexual Abuse: A Journal of Research and Treatment, 1-23; Prescott, J.J. (2016).

[4] Bitna, K., Benekos, P., & Merlo, A. (2016). Sex offender recidivism revisited: Review of recent meta-analyses on the effects of sex offender treatment. Trauma, Violence, and Abuse, 17(1), 105-117.

[5] Hunter, B. A., Lanza, A.S., Lawlor, M., Dyson, W., & Gordon, D.M. (2015). A strengths-based approach to prisoner reentry: The fresh start prisoner reentry program.

[6] Visgaitis, R. L. (2011). Retroactive application of the sex offender registration and notification act: A modern encroachment on judicial power. Columbia Journal of Law & Social Problems, 45(2), 273-302.

 

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