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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.

 

Narratives surrounding our “first right” – the democratic right to protest.

Camila FrancoBy Camila Franco

Unless cited, the views expressed in this blog are my own.

A memorable event during my internship at the Instituto de Democracia y Derechos Humanos de la Pontificia Universidad Católica del Perú (IDEHPUCP) was when the center realized its sixteenth edition (virtually) of the Human Rights Conference titled “Bicentenario: 200 Años de Indiferencia”, or “Bicentennial: 200 Years of Indifference” in English. The week-long conference sought to visibilize historically marginalized groups, as well as identify challenges and generate proposals for stronger nation building by focusing on three axes of analysis: corruption, memory and inequality. 

Following four days of panels featuring speakers from various origins and sectors of specialization, the event concluded with the closing keynote conference: “Protesta Social y Constitución” (or Social Protest and Constitution), by Dr Roberto Gargarella, a jurist and sociologist from the University of Buenos Aires. The keynote was also supported by Eduardo Dargent, a lawyer and political scientist at PUCP, and moderated by Elizabeth Salmón, the executive director of IDEHPUCP. In this event, Dr. Gargarella characterized social protests as “el primer derecho” or the ‘first right’ to which special deference and protection is owed, since the right to protest represents the possibility of defending all other human rights and freedoms. The right is not merely to the act itself, but rather to dissent, and to demand that the people’s dignity and interests be respected. He noted that presently, the right to social protest is surrounded by controversy. I want to further explore this fractured relationship that democratic constitutions have with their “first right”. 

The right to protest corresponds to the right of peaceful assembly, which has been enshrined within international human rights doctrine, under Article 21 of the International Covenant on Civil and Political Rights, and as such all 173 states parties are bound to respect it. Likewise, this right is recognized according to Article 15 of the American Convention on Human Rights. In Peru, the right to assemble peacefully is guaranteed under Article 2, paragraph 12 of the country’s Political Constitution.

Even though peaceful protests are legally recognized as fundamental to all democratic constitutions, they are routinely stifled around the world by law, police force, or court orders. Obvious concerns arise from the excessive use of force deployed by the state against its civilians, and the potentially unconstitutional ways in which this freedom has been restricted via public property laws, for example. But I am equally concerned by the devaluation of the potential that this “first right” has to combat inequality.

 Marginalized groups, without economic resources, are more likely to have their quality of life in the hands of the state. A state that finances social assistance, controls child and family services, public education and the penal system, for example. When government policies put special interests before human rights, those entrenched in these state-regulated bureaucracies feel the impacts most gravely. It is no coincidence that throughout history, socially oppressed groups have relied primarily on assembly rights to protest the systemic injustices suffered. Those who protest against the state often lack access to political influence, have no resources to litigate unjust government policies, and their minority interests are not always promoted by democratically elected bodies. Therefore, a crowd gathering as a form of disruption can become the only way to get attention, apply pressure, and demand political change. It is important to recognize, then, that protesting is both a phenomenon of necessity and a legitimate tool to take advantage of in a democratic society. 

However, social protests continue to polarize and attract a controversial reputation. Why?

In my opinion, part of the answer lies in two mainstream narratives that are propagated by those who want to defend the status quo (or, more precisely, by the state who is being criticized). Distorted narratives are used to discredit the group of individuals who participate in the protests, by showing them as illegitimate messengers, who should not be taken seriously, or as immoral people, who should not be indulged. This allows the state to deflect systemic responsibility for the situation that generated the protest in the first place, and to divert attention away from the demands the protestors introduce.

We saw this tactic deployed in Canada last year when members of the legislative assembly referred to the defenders of Indigenous lands during the Wet’suwet’en ‘blockades as “spoiled kids,” whose main motivation for participating in any demonstration was “TikTok culture.” These types of character attacks are commonly used to undermine protesters, especially youth, in order to dismiss the legitimate concerns within their message. Likewise, these critiques wrongly characterize the act of protesting as pleasant, when in fact protesters are often subjected to tense scrutiny and the risk of violence or police abuse.

In the same sense, by qualifying the protesters as immoral individuals, it is possible to create a an imaginary confrontation between the interest of the protesters and the interest of the broader public. This is done so by qualifying protestors as “terrorists” or “criminals”, like former Colombian President Alvaro Uribe did when referring to those protesting against the 2021 tax reform in May (the reform sought to increase increased taxes for lower and middle income Colombians, and also raised taxes on utilities and food). It is important to point out that even in the case of demonstrations that involve violent actions, it is inaccurate and harmful to generalize the entire mobilized population as such. In effect, this language scares onlookers away from the scenes of mobilization, keeping them disconnected from the true message of those on the ground and exacerbates a social polarization, further excluding those who are marginalized. These narratives work to normalize the repression of dissent and also underestimate the real potential that social protests have to combat inequality.

It is also recognized that in circumstances where peaceful protests havve failed to create change, vulnerable groups may have valid reasons to engage in more disruptive means to combat the oppressive status quo. For this reason, it is worth analyzing the balance between material damage and obstruction of public space with the cause and objective of the social demonstration. To adequately protect the potential for equality that protests bring, it is necessary to create a very clear distinction between what constitutes never permissible acts of violence and what is disruption that still falls within the s of legitimate democratic protest. The current vague and narrow definition of what it means to be “peaceful” has allowed the power holders to weaponize the rule of law and carry out massive human rights abuses, when they decide that a protest no longer fits their definition of “peaceful” and therefore should not be protected. When the state justifies quelling protests in the name of stability and order, we must seriously ask ourselves: at what cost?

As Dr. Gargarella stated during his keynote address, most social anger has to do with inequality. We can think of the disruption caused by protests as a symptom that there is a tear in our social fabric – that a systemic failure is no longer bearable. This tension cultivates a democratic dialogue which provides an opportunity for education, negotiation, compromise or accountability.  By emphatically protecting the freedom of assembly, we can uphold a more compassionate and equal version of justice. Instead of avoiding the discomfort that protests bring, we could celebrate protests for social justice as an indication of an engaged citizenry that is committed to the wellbeing of the collective. We can shift our narrative and celebrate protesters as defenders of our democracy, of our constitutions and of a future where human rights are truly inalienable.

Abolition? Defund? Reform? Diverging policy pathways in police governance

Christoph IvancicBy Christoph Ivancic

The police killings of Breonna Taylor and George Floyd have set off a flurry of social mobilization calling for the re-evaluation of policing and its value to society at large. The BCCLA was active in police reform measures last year, creating a 69-page submission to the Special Committee on reforming the Police Act. To its credit, the Federal government has not been deaf to calls for reform either. The Standing Committee on Public Safety and National Security released a report earlier this summer that made recommendations to combat systemic racism in policing in Canada. While the report makes some recommendations that align with the BCCLA’s position on police reform, it’s clear that the committee has missed the mark on key issues.

Starting with the good news, the report makes a number of seemingly progressive recommendations such as the decriminalization of simple possession of all drugs, increased engagement with indigenous communities, the possibility of ending contract policing with the RCMP, the tightening of use-of-force guidelines, transitioning the RCMP away from a paramilitary force into a police service model, and more robust, transparent, and diverse civilian oversite. While it is promising that these solutions are finally gaining traction in government circles, it remains disappointing that the government has taken this long to pay heed to solutions that have been put forward by BIPOC activists for years. Perhaps social change is just more palatable to the Senate with Peter McKay leading the charge.

Despite the positives, there remain problematic implications to the report’s recommendations. For instance, the report emphasizes indigenous participation and co-optation into the policing system but does little to re-affirm indigenous sovereignty aside from calling for the development of “an Indigenous Police Services Framework designed to promote self-determination and self-governance” (Recommendation 13). The commission decided not to include a recommendation that indigenous communities must give “free, prior, and informed consent” to be subjected to the jurisdiction of colonial police forces, something that the BCCLA advocated for in their submissions on police reform. The report also goes so far as to recommend a specific model of policing in Indigenous communities, the Kwanlin Dün First Nation model, which incentivizes cooperation with the RCMP in exchange for more community control and creates indigenous intermediaries to go between the RCMP and community members. There is an internal contradiction in calling for “self-determination and self-governance” while incentivizing a specific model of policing for indigenous communities which reaffirms the position of the RCMP, a contradiction that is heightened by the attestation of land defenders that the RCMP are illegal on their lands.

The report turns a blind eye to calls to defund the police and devote resources to upstream methods of crime control and prevention. Instead, there are recommendations that, if implemented, would result in significant increases to police budgets. These recommendations include training to prevent excessive use of force and systemic racial profiling (Recommendation 5), the creation of a national police college (Recommendation 9), the addition of de-escalation, implicit bias, gender-based violence, cultural awareness, and the history of slavery and colonization to RCMP training (Recommendation 35). First, lets address use of force. The idea that training is the appropriate tool to remedy excessive use of force is no longer viable. Human beings do not need to be trained in how to not kill people, conflating this issue as complex implies that police use of force is a black box that civilians can’t understand. In reality, it is democratic civilian leadership that legitimates police authority. This also points to one of the issues which both the report and the BCCLA highlight; police oversight is not civilianized, it is filled with ex-police officers, ex-crown prosecutors, and others with interests related to policing.  The report does make a recommendation to reign in police use of force through a zero-tolerance policy for excessive use of force. However, it is unclear why this zero-tolerance policy would be immune to current issues within police oversight, including problems of civilianization and independence, enforcement, transparency, and victim involvement. Turning to the issue of training more broadly, the recommendation to create a national police college includes mandatory crisis resolution and psychology courses. This also misses the point of the mass social mobilization which occurred over the past year. Police do not need psychology courses so that they can better respond to wellness checks. Police need to stop doing wellness checks and we need to find more appropriate methods of dealing with conflict and harm in our society, something that the BCCLA called for in their submissions to reform the Police Act (BCCLA Recommendation 2.2 and 2.7). Any recommendation which increases funding for police reinforces and affirms carceral logics which must be challenged to achieve any kind of meaningful transformation.

Interestingly, the report makes no recommendations on issues of homelessness. With mass evictions garnering media attention in Toronto, a number of deaths following the erection of fences in downtown Montreal, and a wave of park bans in Vancouver, it’s curious that the committee failed to see the connection between systemic racism and the criminalization of homelessness. It bears repeating that the socio-economic impacts of colonization put the indigenous population at a higher risk of homelessness and police are the ones charged with performing the ticketing, arresting, and removal.

The committee’s report falls short of “rethinking safety and achieving a full transformation, especially one that upholds Indigenous jurisdiction and justice systems”, which is exactly what the BCCLA has been advocating for. The BCCLA will be using its expertise on police reform in the coming years as it challenges anti-poverty policy across the country and participates in the Mass Casualty Commission, along with friends at the East Coast Prison Justice Society, in Nova Scotia.

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