« Older Entries

Meeting human rights defenders: when one falls, ten will rise

By Natalia Koper

Winter in Lima is a multisensory experience. The streets are dusty and polluted, and the chilly humidity is difficult to get used to. The hustle and bustle of traffic and street vendors continues long after dusk and resumes at full volume from the early morning hours. The sky is murky every day, giving the city a feel of suspense and unease. It’s been over a month since Lima welcomed me and crossing a busy street is still an adventure. Here, the green light is merely a suggestion – never a guarantee. Instead, drivers approach honking, announcing their presence in defiance of traffic norms.

It was a pleasure to hang out with Emilie de Haas, a former IDEHPUCP intern from McGill, while she was visiting her friends in Peru.

Despite its tense and mysterious side, Lima is also lively and passionate. I wake up every day listening to the sweet tweet of the birds. Every household in my neighbourhood has a colourful garden of tropical flowers and plants. And then there’s soccer: I didn’t need to watch Copa América (the South American soccer championship) to know the current score whenever Peru was playing, as the entire city would hold their breaths and then cheer wildly into the streets every time their compatriots scored a goal.

If Lima were a person, she would be a moody rule-breaker, but also creative and spirited.

My amazing colleagues from the Institute. Thank you for being so welcoming!

This is the setting of the Institute for Democracy and Human Rights (IDEHPUCP in Spanish), a leading Latin American research facility, and it is where I’m spending my summer. The Institute, born in 2004 from the work of the Truth and Reconciliation Commission (CVR), continues to examine the causes and implications of the internal armed conflict, which raged in Peru for two decades between 1980 and 2000. The work of the Institute goes beyond this mandate, by striving to build a stronger civil society through research, publications, and education programmes. I’ve been so grateful for the opportunity to participate in the very diverse initiatives that the Institute is undertaking.

Last week, I attended workshops organized by the Inter-American Commission on Human Rights (IACHR). Together with the only other foreign intern Weronika (who is a third-year political science student at Yale and coincidentally Polish, like me), we reported on the events taking place throughout the week. There were 60 human rights defenders from twenty Latin American states, selected from almost 3000 applications. On the first day, everyone introduced themselves and briefly described their line of work. Among different dimensions of human rights work, the defenders discussed women’s rights, LGBTQ rights, Indigenous and Afro-descendant rights, environmental rights, migration rights, rights of prisoners, freedom of expression, and rights of victims of armed conflicts. I felt honoured to be in the presence of this diverse group of extraordinary individuals who put their lives at risk to defend values and causes worth fighting for. Spending an entire week with them was truly a humbling and inspiring experience.

At the beginning of the IACHR course, participants identified key challenges for the human rights field in Latin America.

I had the pleasure of speaking to a few of these activists, one of whom monitors prison conditions in Venezuela. As she described, prisoners in Venezuela are dying from a lack of the most basic medical care – anything from tuberculosis to ear infections. They are also subjected to torture, with cases of deaths registered as suicides. Prisons are so overcrowded that some people stay in tiny custody cells at police stations for months after being convicted. This phenomenon has led prisoners to establish a rotation system for who will get to sleep on a particular day.

I also met an immigration lawyer from Guadalajara, Mexico who recounted challenges faced by stateless immigrants trying to register their children in Mexico. Some people who arrive in Mexico from rural areas of Central America do not have any documents, no birth certificate, nothing. When they turn to the Mexican authorities for registering their children’s birth certificates, the immigration authorities refuse to process the documentation, which means further marginalization and limited access to public services. This is why Luis’s FM4 Paso Libre is committed to providing comprehensive assistance to those in need, including shelter, psychological help, and social reintegration, and legal advice.

The main objective of the course was to train human rights defenders in accessing the inter-American human rights system, composed of the IACHR (same guys who organized the course) – whose doors you can on knock first if you’d like to denounce human rights violations in an OAS country – and the Inter-American Court of Human Rights – the main organ of the inter-American system (where Kelly O’Connor is completing her internship placement right now). The participants engaged in a series of interactive lectures and mock hearings led by the IACHR staff (and recently appointed Commissioner Julissa Mantilla, who is a law professor of some of my colleagues at the Institute). At the end of the course, they were committed to imparting what they learned in their organizations and communities.

The participants tried out different roles during a mock IACHR hearing. The fact pattern concerned the urgency of granting adequate protection measures to the wife of an Indigenous community leader.

A recurring theme of the week was the safety of human rights defenders. Three out of four murders of human rights defenders occur in Latin America, as was emphasized by Commissioner Francisco José Eguiguren during a conference that inaugurated the week. In 2018, Colombia and Mexico alone accounted for 54% of the total killings, according to Front Line Defenders’ report. In addition, the activists face threats, criminalization, harassment, stigmatization, and arbitrary detentions. Some of the participants have already experienced violence or are beneficiaries of precautionary measures, which are granted by IACHR in serious and urgent situations in order to prevent irreparable harm.

Human rights defenders play a critical role in protecting the rights and wellbeing of their communities. Their voice holds governments and businesses accountable to the international community and the public in general. As such, it is disheartening to hear about activists labelled as ‘terrorists’ and peaceful protests equated with ‘inciting rebellion.’ Arguably, it’s in everyone’s interest to keep rights-upholders safe. Am I naïve to think that everyone wins if rights pertaining to each and every one of us are recognized and respected? For some reason, the dynamic of human rights defence has always been binary and adversarial: activists versus the government; the community versus the corporation etc. As a result, the mistaken pursuit of power and wealth has led many private actors to believe that human rights pose a limitation to business. But the way I look at it, businesses thrive where rights are respected because they operate more efficiently in an environment of political and economic stability, transparency, and accountability.

On the last day of the IACHR course, everyone had a chance to reflect on the past few days and to celebrate its diversity of perspectives and cosmovisions. There were many tears and expressions of gratitude for being heard by the IACHR. Within one week, these people exchanged accounts of violence and other challenges they face daily, realizing to their surprise that they shared many of the same experiences. It was very powerful because, simply put, it meant that they were not alone in their fight and that they could look for support among each other. In the end, a participant from Chile shared with the group a Mapudungun message of hope: when one falls, ten will rise.

On the weekends, I try to travel as much as possible. I’ve never been to Peru before and there is so much to see!

A condor at Colca Canyon.

Here, Paracas National Reserve, home to Humboldt penguins, sea lions, and breathtaking landscapes.

The said penguins at Islas Ballestas, in Paracas National Reserve.

Navigating the Small Moments in Kampala

By Kirstie Russell

My commute to and from work is, in many ways, the time when I am most reflective on my new life in Kampala. Part of me wonders if this is because it makes up about 2 to 3 hours of my day, but another part of me thinks it is because it gives me time to slow down and really observe the city, its people and the way of life here. Kampala’s exuberance and vibrancy is difficult to put into words. Whatever I write here in this blog cannot possibly do it justice.

I arrived in Uganda nearly two months ago and still, almost every day, I see a passenger riding a boda (the motorcycles that most locals use to get around) while balancing some kind of large object on the end of the bike. For example, last week we saw a passenger transporting what must have been a 4-foot sheet of glass, which if you are at all familiar with Kampala’s traffic, is extremely risky business. The week before that, we saw a boda driver carrying a passenger who was balancing another broken down boda perpendicularly in his hands, clearly on the way to a mechanic. Just yesterday we saw a boda driver transporting what must have been 8-foot tall stalks of sugar cane horizontally through the narrow streets of Old Kampala, just missing other drivers passing by. Each and everyday we see bodas carrying entire families (sometimes up to 3 or 4 people, including small children) to their workplace and to school. Most of the time these small motorcycles narrowly squeeze in between the traffic, which operates relatively seamlessly but on its own accord given that there are barely any stop signs, traffic lights or street lamps. Meanwhile, pedestrians boldly skirt between the vehicles, which move in sudden spurts taking little mercy on anyone who risks getting in the way. Goats and chickens also occupy the roadway, trying to feed on whatever they can find in the grassy patches next to the uneven tarmac ridden with potholes.

Traffic, which is called “jam” in Uganda, is an inevitable part of life here. This is part of the reason why so many locals rely on using boda-boda’s, which are small motorcycles that weave in and out of the traffic in order to get their passengers to their destination on time.

In a way Kampala traffic is utterly hectic and completely overwhelming but from another perspective, it’s quite beautiful. The streets are chock-full of multicolored cars, mostly models from the 1980s to early 2000s, and motorcycles weaving in and out carrying all kinds of people wearing anything from a suit to flip flops to a beautifully patterned kitenge dress. All of this takes place against a backdrop of lush green hills, dotted with red roofs and rich rust-coloured dirt. A friend of mine local to Kampala describes the city as “beautiful chaos” and I think that puts its perfectly.

Kampala sits on seven hills and numerous valleys. It is extremely lush with all kinds of different trees, ranging from fruit trees to pine trees. Virtually anything can grow here because the climate is so amenable to growth.

The smells of Kampala are almost as diverse as the users of the roadway. On a warm sunny day, the air is usually thick and polluted but as you pick up speed you get enough of a breeze to catch the smell of fresh cassava cooking in oil in silver pots set up all along the road. Towards the middle of the day, the “rolex guys” start setting up their small stands typically protected by nothing other than a meager umbrella that is nowhere near big enough to stop them from getting drenched by one of Kampala’s intense but brief rain storms. Rolex’s are a classic Ugandan food consisting of a thin omelet rolled up in chapati, which is a wheat based fried bread, similar in a way to naan. Even later in the evening you can see women and their children setting up stoves along the roadside where they spend the evening roasting maize, which they then try and sell to tired and impatient drivers stuck in traffic (which the locals call “jam”). I’ve learned that food is extremely important to Ugandans. In fact, I find that it is one of the very first topics strangers ask me about when they find out I am visiting from Canada: “…but have you tried Ugandan food?” I’ve even had Uber drivers invite me over for dinner out of fear that the local food I have tasted is not up to standard. I have been lucky, though, because the organization where I interned at the beginning of the summer kindly provided its staff with lunch. Lunch typically consisted of a number of staple Ugandan foods, including: ground nut “g-nut” paste, which is a purple paste that is made out of nuts that taste similar to peanuts; mataoke (the most cherished Ugandan food), which is boiled and mashed green banana cooked in a banana leaf; Irish potato, which is similar to boiled potatoes at home; pumpkin, which is similar to acorn squash in Canada; beans or cow peas; rice; and some kind of stew, typically made with chicken, beef or fish.

A local man making chapati at a rolex stand near the Refugee Law Project. Chapati is a very cheap but filling option for lunch. I think this is the best Chapati out there, but apparently everybody thinks their “rolex guy” makes the best chapati.

For the first week, I tried every single food available at lunch (with the exception of the meat dishes because I am a vegetarian). I enjoyed most of the dishes but I quickly learned that my body was not used to consuming that much starch all at once in a single meal. Perhaps my challenge with digesting rice, potatoes, chapati, etc. all in one sitting is related to the fact that in North America there is an obsession with body image and because of this, often pressure to eat fewer carbohydrates. It’s possible that given my diet at home, I have difficulty digesting such a large amount of gluten all at one time. In the following weeks, I realized that I had to adjust my lunchtime eating habits to include just beans, cowpeas, rice and avocado in order to avoid getting a stomachache. This disconcerted my colleagues a lot. Every day someone would comment that I wasn’t eating “real” food. Ugandan’s love meat so it was difficult for them to understand why I would choose to eliminate this cherished food group from my diet. Initially, I felt really guilty about not eating all of the different foods offered in the buffet because I could tell that my colleagues were proud of their cuisine and eager to share it with me. I also recognized that choosing not to eat meat is a privilege that is not available to everyone. I didn’t want to come across like a picky eater because let’s be honest, nobody likes a picky eater. I tried to explain to my colleagues that in Canada, unlike Uganda, animals tend not to be raised ethically. Upon hearing this explanation, most of my colleagues understood my reasons for being vegetarian. Many of them seemed aware that food in North America is highly processed and they are very much proud of the fact that Ugandans eat real, natural food. And they should be proud. The tomatoes here are a deep cherry red like I’ve never seen before; the avocados, which are literally the size of my face, are a bright shade of green; and the chickens and goats roam around freely until maturation. The freshness and diversity of the food here is truly amazing, so it is unsurprising that it is such a critical aspect of Ugandan identity.

However, after three weeks of receiving commentary on my food intake, I admittedly became a bit tired out by other people’s focus on my personal dietary choices. Sometimes it felt like it’s all anyone wanted to talk to me about. That and the fact that I had a driver, which I admit, is not something that I felt great about either. While I would have preferred to take public transport to work, I was told by my friend who is from Kampala and who knows the city well that the safest and most reliable way for me to commute to my workplace (which is located about 40-60 minutes outside of the city) was to organize a scheduled driver. Before arriving in Uganda, I had many reservations about this set up. I recognized that this was not a typical form of transport and that it would likely be perceived as “privileged” (as it should be). I wasn’t wrong about this. On my very first day, I was asked the normal question of “where do you live?” and then “how do you reach?” which means “how do you commute?” When I explained that I had a driver due to the challenge of using public means from where I live, the next question was almost always “how much do you pay for that?”

In Canada we tend to avoid asking strangers personal questions, especially questions related to money. However, that doesn’t appear to be the case in Uganda, which is a much more collectivist society than North America, where we are typically more private and individualist. In my experience, Ugandans are much more willing to ask questions about money, family and even in some cases sexuality. Indeed, many people, including work mates, seem to have little reservation asking for intimate details about your personal relationships. A common question people would ask me is why I haven’t had children yet given that I have been with my partner for so many years. At first, my immediate internal reaction to these sorts of questions is shock and then, admittedly, some amount of irritation – why is that anyone’s business other than mine? My external reaction, however, is typically to laugh sheepishly and to try and explain how expectations surrounding family planning are different at home. As a “western intern” in Africa I regularly find myself in this confusing position of feeling like an outsider – distanced and alone – while at the same time feeling like I have no personal space whatsoever because my understanding of what is “personal” is so different from that of most Ugandans, who have a genuine curiosity and well-intentioned concern for one another’s personal wellbeing and family life. I wonder if this is a feeling that international human rights workers feel all of the time or if it something that they get used to as time goes on.

I tried to remind myself of these cultural differences each time I was asked about the cost of my driver. I would try and vaguely explain that while the transportation to and from work is a significant cost, a local friend suggested that having a driver was the safest and most reliable mode of transportation for me, given where I lived. Unfortunately, living close to work was not really an option because the office is so far outside of Kampala and there is limited rental housing in the area. Those who found out how much I paid my driver were shocked by the amount (and to be completely honest when I said the amount out loud, I was too). However, many of them tried to hide their surprise by acknowledging that where I lived was particularly challenging to commute from. Others responded by referring to me sardonically as “their rich friend” or their “rich sister.” These comments were uncomfortable, but I had to learn to brush them off and not take them personally. I anticipated this response and to be quite honest, I understood it. I wished that I felt more confident navigating the matutu routes (local taxi buses) and taking bodas into the rural suburbs outside Kampala, but I knew I had to recognize my own boundaries and I chose to prioritize my safety. I had to accept the consequences of that decision and make the best of it. And funnily enough, it worked out. While at first having a driver seemed like something that was going to make me feel like a total outsider (and a privileged one at that), it had the paradoxical effect of bringing me closer to my colleagues because I could pick several of them up on the way to work and drop them off at the end of the day. In a weird way my commute, which I thought might distance me from my co-workers, actually brought us closer together by allowing us the opportunity to learn about one another’s lives outside of the office.

These very brief interactions in Kampala have taught me the importance of slowing down and noticing the small moments, for example the commute to work and lunchtime conversations, which can be easily taken for granted during an internship abroad. Often times, these seemingly insignificant features of everyday life are the things that we learn from the most. My more challenging moments have also served as an important reminder that when things feel difficult, frustrating or uncomfortable, it is important to remain calm and open-minded because things are not always as they seem and, in some cases, if you just hang in there, they even have a funny way of working out for the best. While it is important to prioritize your wellbeing and know your personal boundaries, I’ve learned that letting your guard down (in some situations) has the potential to change your experience for the better.

A view of the hills in Fort Portal, a city in western Uganda near the crater lakes.

A friend paddling along the Nile River in Jinja, Uganda.

Driving back to Kampala from Nakwero, the town where CEHURD is located.

Time, Suffrage and Disability

By Leila Alfaro

If I had to choose one aspect for which I am most grateful when travelling, it would be the resilience I am forced to develop as I find myself in new, challenging situations. Beyond my love for visiting new sights, tasting different foods and meeting new people, I appreciate being challenged when facing cultural aspects so different from my own to the point I must undertake a process of deep introspection, contemplating the Other as well as my own reflexes and the things and practices I take for granted. Since arriving to Argentina, I have had plenty of time to experience and, most importantly, to reflect on not only the cultural, but also the geographical, infrastructural and economic gaps between this side of the pole and home, up in the North.

Having had the privilege of knowing Mexico and most of Central America, I knew coming here that I should brace myself for an experience in which time could not be measured the same way as back home. It amazes me that, even with everything I know and have lived, I am still surprised seeing how time can move so slowly here. Through meetings postponed, messages unanswered, workshops cancelled, last-minute schedule changes and strikes, my patience has been tested on several occasions. However, as I learn to expect the unexpected, I grow more comfortable with this kind of difference, knowing I am being confronted to my biggest flaw (impatience) and that at the same time I have the opportunity to build on some very valuable skills, namely autonomy, resourcefulness and, of course, resilience.

While I recognize the slow tempo of the city has kept me from achieving the most of this experience work-wise, I also recognize the good it entails – I appreciate this stress-free lifestyle, which is a nice break from the North American way. I also admire the role of family in Argentina, the importance of making time for those around us and for self-care. More time on my hands also means I can enjoy more walks on the beach and more delicious parillas with my family. It also allows me to be more critical about the experience itself; whenever a situation arises, I can truly take a moment and reflect on the why and the implications of whatever is happening for the Argentinian people and for me as a visitor (strikes related to the weakened economy, classes cancelled due to bad weather affecting infrastructure, unavailability of certain goods are some examples of circumstances which I have faced during my time here).

Work may be slow here, but it still happens. I have had the chance to join an interdisciplinary, graduate clinical group working on promoting voting rights for people with disabilities. So far, this has taken the shape of workshops in schools and community centers for individuals with disabilities, lectures aimed at undergraduate students and inter-faculty discussions. I take this work very seriously as it has taught me a great deal about political perspectives and disability rights in the region. In any democracy, we can reasonably expect people with disabilities to have more difficulty enforcing their right to vote without proper accommodations provided by the State – but, what happens when voting is also a duty? In Argentina, an absence to the polls must be justified in order to avoid sanctions; this certainly entails a new set of complex challenges for anyone, and for citizens with disabilities in particular. Because of the unique nature of suffrage in Argentina, addressing it in light of issues of diversity and inclusivity is of utmost importance. I appreciate this opportunity especially given the precarious situation in the country in the context of the upcoming elections this fall.

As the last half of my internship begins, I am starting to feel a bit homesick, but I look forward to new learnings and to continue discovering what this country has to offer (I am excited to visit Mendoza and Buenos Aires this upcoming week!), and in the end I know it will have seemed like it all happened in the blink of an eye.

Abortion in the Americas: Article 4(1) of the American Convention on Human Rights

Kelly O’ConnorBy Kelly O’Connor

I can’t believe it’s been more than a month since I arrived in Costa Rica to start my internship at the Inter-American Court of Human Rights! Of course, when I think back on all of the experiences I’ve had in the past 6 weeks, professionally and personally, I can see that I have been busy during this short time.

My idea for this post came as I was doing research for my last blog post on Canada’s place in the Inter-American Human Rights System. In my reading, I learned that Article 4(1) is frequently cited as a potential obstacle for Canada’s ratification of the American Convention of Human Rights. The article reads:

Not just work: I got to go hiking in Rincón de la Vieja National Park in the province of Guanacaste one weekend.

Article 4: Right to Life

  1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.[i] (emphasis mine)

… What??? I could not believe my eyes. In my opinion, the right to end a pregnancy (whether potentially dangerous, unviable, or simply unwanted) is intrinsically linked to bodily autonomy and gender equality. How could an international human rights instrument include such a clause that undermined gender equality? I was flabbergasted.

Article 4(1) of the American Convention reminded me of the 8th amendment to the Constitution of Ireland, which was repealed in 2018. The amendment read:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.[ii]

Savita Halappanavar, Irish Times

As a feminist, and as an Irish woman, I have had strong feelings about abortion since I was an undergraduate student. I was living in Ireland in the fall of 2012, when Savita Halappanavar died of sepsis in an Irish hospital after doctors refused to terminate her pregnancy. Even though it was a much-wanted pregnancy, she was having a miscarriage that quickly became a danger to her life.[iii] Her doctors refused to accelerate the end of her pregnancy because the fetus still “had a heartbeat,” while hospital staff reportedly told her husband that Ireland was a “Catholic country.”[iv] Protests ensued. Feminists replied that “she had a heartbeat too.”[v]

At the time, Ireland had one of the strictest abortion laws in Europe.[vi] The public outrage at the injustice done to Ms. Halappanavar and the tireless effort of feminist groups eventually led to a successful 2018 referendum to repeal the 8th amendment and legalize the procedure in the Republic, now allowed regardless of reason until 12 weeks gestation. The Irish Times wrote after the vote that “[m]any point to a young woman called Savita Halappanavar as the reason they became revolutionaries.”[vii] I guess I could say the same of myself.

“ABORTO YA” (“ABORTION NOW”) graffiti on my way to work in San José, painted in the same green colour used by the Argentinean movement.

Abortion has long been a controversial issue in Latin America, home to some of the most restrictive abortion laws in the world. The Center for Reproductive Rights, an NGO that uses law to advance reproductive rights as fundamental human rights around the world, writes:

Latin America and the Caribbean are home to some of the most restrictive and punitive abortion laws in the world. In El Salvador, Haiti, Honduras, Nicaragua, Dominican Republic, and Suriname, abortion is completely illegal—with no exception. In El Salvador, the government has taken this even further and interpreted the law such that women are imprisoned for obstetric emergencies out of suspicion of their having had an abortion. In Guatemala, abortion is criminalized in all instances except when a pregnant woman’s life is at risk, which is typically interpreted to mean immediate and imminent death.[viii]

In recent weeks abortion has been a hot topic in Latin America from Guatemala to Argentina. On May 29th, four women from Nicaragua, Ecuador, and Guatemala filed complaints against their respective governments before the UN Human Rights Committee, represented by the Center for Reproductive Rights.[ix] The women were all under 14 years old when they became pregnant as a result of rape perpetrated by older men. They argue that their lives were put at risk when their governments denied them abortions.

Activists hold green handkerchiefs, which symbolizes the abortion rights movement, during a rally to legalize abortion, outside the National Congress in Buenos Aires, Argentina May 28, 2019. REUTERS/Agustin Marcarian

There is more optimism happening in Argentina, where on May 28th, when an attempt to legalize abortion was introduced to Argentina’s congress for the 8th time. Last year, a similar bill passed the House of Deputies but was narrowly defeated in the Senate.[x] One of the loudest opponents of the effort to legalize abortion is the Catholic Church: on May 25th Pope Francis, who is Argentinean, compared abortion to “hiring a hitman.”[xi]

An Argentinean colleague at the Court, named Nina, told me that she wished she could be home to participate in the demonstrations in favour of the bill, which have come to be symbolized by the pañuelo verde (green hankerchief) that pro-choice protesters wear. Currently, abortions are available in Argentina only in cases of rape and when the mother’s health is at risk.[xii] However, in practice, many women are not able to access the care they are allowed by law. In February of 2019, a 12-year-old girl was forced to deliver a baby by cesarean section after hospital and government administrators blocked her request for an abortion. She had become pregnant after being raped by her grandmother’s boyfriend.[xiii] A similar abortion law also failed to save Savita Halappanavar in Ireland.

My work colleague, Nina, with her symbolic pañuelo verde that she wears to pro-abortion demonstrations in her home city of Córdoba, Argentina.

Given this context of strict abortion laws, it is perhaps unsurprising that there would have been pressure to include a provision such as Article 4(1) in the drafting of the American Convention. In the case Baby Boy vs United States of America (1981), the Inter-American Commission on Human Rights talked about the origins of the clause.[xiv] The American Convention was preceded by the American Declaration on the Rights and Duties of Man. Canada accepted the American Declaration when it became a full member of the OAS in 1990, although it didn’t participate in the drafting of either document. Article 1 of the Declaration made no mention of conception. According to the Commission, the preliminary draft of this article protected life from the moment of conception, but was dropped in the final version due to the objection of states that permitted abortion in some circumstances (Argentina, Brazil, Costa Rica, Cuba, Ecuador, Mexico, Nicaragua, Paraguay, Peru, the United States, Uruguay, and Venezuela at the time).[xv]

According to the Commission in Baby Boy, the first draft of the American Convention sought to protect life from the moment of conception. However, the words “and, in general” were added by majority vote of the Council of the OAS to accommodate states that permitted abortion in cases such as “to save the mother’s life, and in the case of rape.”[xvi] Some states, such as Ecuador, objected to this change.[xvii] Given this history, the Commission firmly established that the right to life from the moment of conception is not absolute.[xviii]

After Baby Boy, there was no jurisprudence on the subject of the rights of embryos under Article 4(1) until the 2012 case Artavia Murillo and others vs. Costa Rica, which related to the legality of in vitro fertilization.[xix] In Artavia Murillo, the Inter-American Court said that the addition of the words “and, in general” means that the right to life from conception is not absolute, but rather is gradual and evolves along with the development of the fetus.[xx] The Court also concluded that it was impossible to consider an embryo to have full legal personhood, and noted that no other international human rights instruments grant personhood to the unborn.[xxi]

Nevertheless, Article 4(1) has been pointed out as a potential obstacle to Canada’s adherence to the convention. In 2003, there was a Senate Commission on Canada’s involvement in the Inter-American system. The Commission said:

Even though article 4(1) does not impose an obligation to prohibit abortions, it may impose an obligation to regulate them. However, at the moment, there is no Canadian legislation or regulation with respect to abortions. The Supreme Court of Canada found in R v Morgentaler that the procedure created under section 251 of the Criminal Code for obtaining an abortion was incompatible with a woman’s right to the security of her person. No new provision has been adopted to replace s. 251.[xxii]

Despite this concern (and others), the Senate ultimately recommended that Canada join the system.[xxiii] Sixteen years later, Canada’s law on abortion has not changed, and therefore, in my opinion, the concerns of the Senate Committee remain valid.

This photo with the flag of the Organization of American States was taken in the room where the judges of the Court deliberate important cases such as Artavia Murillo and others vs. Costa Rica.

Even with the limits on Article 4(1) circumscribed by the Court, I do not think that the right to life as set out in the American Convention is compatible with Canadian law on the subject of abortion. Bernard Duhaime writes in “Ten Reasons Why Canada Should Join the ACHR” that the interpretations of the Article in Baby Boy and Artavia Murillo bring the Article in line with obligations of other human rights treaties ratified by Canada, and would not pose an obstacle for Canada’s acceptance of the Convention.[xxiv] I respectfully disagree. It is clear from the jurisprudence that Article 4(1) allows abortion in some circumstances, such as in the case of rape and to save the life of the mother. However, the jurisprudence is silent on whether the Article permits the termination of a pregnancy that is simply unwanted, as is currently allowed in Canada. Duhaime does acknowledge that “any remaining concern could also be addressed by entering a reservation or an interpretative declaration as to specific aspects of the American Convention, when adhering to it.”[xxv] On this point I agree: any adherence by Canada would require such a reservation, which would relieve Canada of the obligation of Article 4(1).

In conclusion, the lack of protection of a women’s right to end a pregnancy is a pressing issue in Latin America, from Argentina to Mexico, and, increasingly the United States as well (but that’s another issue[xxvi]). The American Convention, unfortunately, does little to protect women’s reproductive rights due to the protection of a fetus’s right to life in Article 4(1). Clearly, the Inter-American Human Rights System allows abortion in at least some circumstances, but it is not clear whether a legal framework such as Canada’s would be allowed. Consequently, if Canada were to ratify the American Convention, it would be essential to include a reservation with regards to Article 4(1). The complex topic of abortion in the Americas, therefore, should not necessarily prevent Canada from playing a bigger role in the Inter-American Human Rights System.

—————

[i] American Convention on Human Rights, available at: https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm

[ii] Constitution of Ireland, available at: https://www.gov.ie/en/publication/d5bd8c-constitution-of-ireland/?referrer=/DOT/eng/Historical_Information/The_Constitution/Constitution_of_Ireland_-_Bunreacht_na_h%C3%83%E2%80%B0ireann.html

[iii] BBC, Woman dies after abortion request “refused” at Galway Hospital, 14 November 2012, https://www.bbc.com/news/uk-northern-ireland-20321741

[iv] Ibid.

[v] See, for example, Ann Rossiter, “‘She Had A Heartbeat Too’: The Tragic Death of Savita Halappanavar in an Irish Hospital,” 21 Jan 2013, Feministing, http://feministing.com/2013/01/21/she-had-a-heartbeat-too-the-tragic-death-of-savita-halappanavar-in-an-irish-hospital/

[vi] For a comprehensive look at the state of abortion rights in the world, see: Center for Reproductive Rights, “The World’s Abortion Laws 2019,” updated in real time, http://worldabortionlaws.com/

[vii] Kitty Holland, “How the death of Savita Halappanavar revolutionised Ireland,” The Irish Times, 28 May 2018, online: <https://www.irishtimes.com/news/social-affairs/how-the-death-of-savita-halappanavar-revolutionised-ireland-1.3510387>.

[viii] Center for Reproductive Rights, “They Are Girls: Reproductive Rights Violations in Latin America and the Caribbean,” 2019, online: <https://www.reproductiverights.org/document/just-girls-reproductive-rights-violations-in-latin-america-and-the-caribbean>.

[ix] The Guardian, Latin America rape survivors who were denied abortions turn to UN, May 29, 2019, online: <https://www.theguardian.com/global-development/2019/may/29/latin-american-survivors-who-were-denied-abortions-turn-to-un>.

[x] BBC, “Argentina abortion: Senate defeats bill after polarising debate,” 9 August 2018, online: <https://www.bbc.com/news/world-latin-america-45125687>.

[xi] Semana, “‘Abortar equivale a contratar un sicario’: Papa Francisco,” 25 May 2019, online: <https://www.semana.com/mundo/articulo/papa-reitera-que-abortar-es-igual-a-contratar-un-sicario/617162>.

[xii] Walter Bianchi, “Argentine activists try again with new bill to legalize abortion,” Reuters, 28 May 2019, online: <https://www.reuters.com/article/us-argentina-abortion/argentine-activists-try-again-with-new-bill-to-legalize-abortion-idUSKCN1SY2NO?>.

[xiii] El País, “Obligada a dar a luz por cesárea otra niña argentina que había sido violada y pidió un aborto,” 28 February 2019, online: <https://elpais.com/sociedad/2019/02/27/actualidad/1551292176_461936.html>.

[xiv] Baby Boy vs United States of America [1981], Inter-American Commission on Human Rights, Res 23/81, Case 2141, online: <http://www.cidh.org/annualrep/80.81eng/USA2141.htm>.

[xv] Ibid., at paras 18-19.

[xvi] Ibid., at para 25.

[xvii] Ibid., at para 29.

[xviii] Ibid., at para 30.

[xix] Artavia Murillo and others vs. Costa Rica, Decision 28 November 2012 (Preliminary exceptions, merits, reparations and costs), online: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_257_ing.pdf>.

[xx] Ibid., at paras 188 and 264.

[xxi] Ibid., at para 223.

[xxii] Senate, Report of the Standing Senate Committee on Human Rights, “Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights (May 2003), online: <https://sencanada.ca/content/sen/Committee/372/huma/rep/rep04may03-e.pdf >, at p. 43.

[xxiii] Ibid.

[xxiv] Bernard Duhaime, “Ten Reasons Why Canada Should Join the ACHR,” Revue générale de droit, Vol. 49 (2019), at p. 196.

[xxv] Ibid, at p. 197.

[xxvi] The Guardian, “US abortion policy is ‘extremist hate’ and ‘torture’, says UN commissioner,” 4 June 2019, online: <https://www.theguardian.com/global-development/2019/jun/04/us-abortion-policy-extremist-hate-torture-un-commissioner-kate-gilmore>.

Canada and the Inter-American Court of Human Rights

Kelly O’ConnorBy Kelly O’Connor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

—————-

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

[2] Ibid, at p 641.

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

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

[5] Ibid, at p 37.

[6] Ibid, at p 38.

[7] Ibid, at p 39.

[8] Ibid, at p 39.

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

[10] Ibid.

End Unjust HIV Criminalization in Canada: A Community Dialogue

By Heather Whiteside

Last Tuesday, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario (HALCO) hosted a community dialogue on the unjust criminalization of HIV in Canada. I attended, along with my colleagues, the Legal Network’s board members, and many community members.

Three panelists discussed what the movement to resist the over-criminalization of HIV has achieved thus far. They also outlined the work that still needs to be done, especially following Ontario’s provincial election (something I considered in my previous blog post). The unifying goal that brought everyone in the room together was putting an end to the misuse of the criminal law in addressing HIV non-disclosure issues.

Before I elaborate on what emerged from the discussion, it might be helpful to back up and provide some context on HIV criminalization in Canada.

Canada has one of the highest rates in the world of criminalizing people living with HIV. People living with HIV who do not disclose their status are often charged with aggravated sexual assault, the most serious sexual offence in the Criminal Code, even if they had no intent to cause harm and no transmission occurred. This is despite the overwhelming scientific evidence showing that sexual activity with a person living with HIV who is taking prescribed treatment poses a negligible risk of transmission.

There is scant evidence that the criminalization of HIV non-disclosure deters behaviour that can transmit HIV. Instead, it has negative consequences. For example, the fear of criminal prosecution may deter people from being tested and receiving adequate treatment. It also places the burden of preventing HIV transmission on those living with HIV and portrays them as potential criminals.

Thankfully, governments are beginning to recognize that HIV is, first and foremost, a medical and public health issue and that criminal prosecutions should only be used in cases of actual, intentional transmission of HIV.  After years of advocacy by community organizations, both the federal and Ontario governments have finally recognized the need to limit the over-criminalization of HIV in Canada. Both governments have decided to cease prosecutions against people with a suppressed viral load, since this is not consistent with the science of HIV transmission.

During the Community Dialogue, the panelists welcomed this shift as an important first step. It suggests that advocacy efforts and persistent discussions with the Ministry of the Attorney General have been effective. The next step is to ensure that the governments’ conclusions are reflected in clear prosecutorial guidelines at both federal and provincial levels, which would determine if and how a case arrives in court.

One of the themes that I found most striking during the discussion was the particular impacts of HIV non-disclosure laws on women. Criminalizing HIV non-disclosure is often perceived as a way to protect heterosexual women, since the vast majority of people charged under these laws are men who have sex with women and sexual assault laws are traditionally thought to protect women from gender-based violence. But if we dig a little deeper, evidence suggests that HIV criminalization actually puts women at risk.

Women are often the first in a family to be tested for HIV during pre-natal care, and the first person to test positive is often blamed for bringing the infection into the relationship. Women are more likely to be in coercive sexual relationships where they are prevented from making autonomous decisions about when and how sexual intercourse occurs, and many women often feel forced to choose between disclosure or risking abuse at the hands of their partners. Non-disclosure laws also mean that women are unlikely to report sexual assault or domestic violence if they are positive. Even more shocking is the fact that criminal charges are often brought against HIV positive women at the end of a romantic, consensual relationship by vindictive partners (as in the case of R. v. D.C., 2012 SCC 48). Ultimately, HIV criminalization does very little to actually protect women from violence and from transmission, and it does even less to empower positive women.

At the end of the Community Dialogue, three concrete suggestions were put forth for changing the law as it’s currently written and applied:

  1. Advocacy in the courtroom
  2. Advocating for prosecutorial guidelines about when the Crown will seek convictions
  3. Legislative reform of the provisions in the Criminal Code

Given the change occurring at the federal level, and the energy and dedication I felt from other community organizers in the room, I got the sense that these goals have a strong likelihood of being achieved.

Human Rights Work and the Ontario Provincial Election: Before and After  

By Heather Whiteside

I began my internship at the Canadian HIV/AIDS Legal Network in Toronto at the beginning of June, just days before the Ontario general election. As an Ontarian and a registered voter, I was listening closely to what each party was saying about major election issues, such as revisions to the school curriculum, the future of the province’s cap-and-trade program, funding for child care, and changes to personal and corporate income tax levels.

One issue in particular stood out from the rest: harm reduction services. The Legal Network is committed to reducing the harms associated with drugs and the harms caused by harsh, misguided drug laws. As an intern, much of my research focused on how we can ensure greater, equitable access to harm reduction services such as supervised consumption sites (SCS) and overdose prevention sites (OPS).

At the same time as I began diving into research on the legislative framework that governs the creation and operation of SCS and the legal barriers that women in particular face in accessing harm reduction services, the leaders of Ontario’s three major political parties were refining their stances on these necessary health services.

At work, I read through swaths of peer-reviewed, scientific literature that pointed to the benefits of SCS and OPS. I looked at evidence from other jurisdictions like Australia, Switzerland, and Spain which confirmed that SCS and OPS reduce the risks of disease and overdose death that are associated with injection drug use. I read reports concluding that SCS reduce public drug use and can connect people who use drugs to necessary health and social services when they are ready. The health and social benefits of harm reduction services are clear – I saw that repeated by the Supreme Court of Canada, front-line clinicians, academic researchers, and people who use drugs.

Then I’d return home, turn on the news, and hear the leader of the Progressive Conservative Party of Ontario telling voters that he was certainly “not going to have injection sites in neighbourhoods.”

I began to see the immediate impact that the election results would have on the work of human rights organizations in Ontario like the Legal Network. When the Conservative Party, led by Doug Ford, won a majority government at the beginning of June, they reasserted a dangerous, anti-harm reduction view and promised to review existing SCS to determine if they “have merit” and are worth continuing. Hearing this only bolstered my motivation to support the Legal Network’s work.

Witnessing how a change in government can complicate human rights work, literally overnight, was frustrating. It also offered important reminders. At both the provincial and federal levels, the governing party’s agenda has a direct impact on the type and scope of human rights advocacy performed in Canada. The government influences how much funding is available to human rights organizations, how issues are framed in public discourse (and especially in the media), and even the means by which human rights are advocated for and protected; is the government of the day open to engaging in conversation with human rights organizers, or is positive change more likely to be achieved via adversarial means like strategic litigation?

We’re facing the “worst drug safety crisis in Canadian history,” and a change in provincial government can’t and won’t stop the work that is being done to save lives and protect the health of people who use drugs. It just means that Ontarians who are committed to improving access to SCS and OPS may need to adapt their strategy in response to Doug Ford’s stance on harm reduction services.

Are We Really Surprised?

By Cassandra Richards

During my time at Maliiganik Tukisiiniakvik Legal Services in Iqaluit, a riot broke out at the Baffin Correctional Centre in June. Baffin Correctional Centre, known colloquially as BCC, carries a reputation as an abhorrent facility, among the worst prisons in North America.

BCC is a men’s territorial medium security prison in Iqaluit and the largest correctional facility in Nunavut. Anyone in Nunavut who is detained will be immediately brought to this facility. This has widespread implications for individuals who do not live in Iqaluit. For example, if you are arrested in Cape Dorset, you will be flown to Iqaluit (1hour flight). For many family members of individuals who have been detained in Iqaluit yet who live in other communities, visiting is not an option for multiple reasons, particularly travel time and costs.

There are no federal prisons in Nunavut. Therefore if a person must be detained at a federal prison (determined by the crime they have been found guilty of committing and their sentence for the latter), they will be flown to a prison in Ontario.

BCC was designed in the 1980s by Bruno Freschi. It was constructed to hold a maximum of 41 inmates. However, since it’s original construction it has been upgraded. The most recent upgrade targeting the amount of inmates the facility could hold was in 1996, during which the capacity was increased to 66 beds with two segregation cells. The prison is constantly over its 66 bed capacity.

There are three other prisons in Iqaluit. Accordingly: Makigiarvik Correctional Centre (men’s prison), Nunavut’s Women’s Correctional Centre, and the Isumaqsunngittukkuvik Youth Facility. Before having gone to Makigiarvik (Maki) or BCC, many people in Iqaluit had described Maki as a hotel compared to the “shit hole” of BCC.

Unfortunately, after my first and many repeated visits to BCC, it lived up to the “shit hole” reputation it has received. What is most frustrating is that many people have long known about the appalling conditions at BCC. A 2015 Report to the Auditor General of Canada stated that “Housing inmates at the Baffin Correctional Centre compromises the security and safety of inmates and staff” and that the “Department of Justice has not addressed its most critical facility needs.”[1] Justice Cooper of the Nunavut Court of Justice has previously called the jail “intolerable” in R v. Uniusaraq, 2015 NUCJ 16.[2]

There are numerous issues with BCC I could speak of, however it would take up a lot of space. Briefly, BCC is constantly overcapacity. The facility itself is severely under resourced and unsafe.  Inmates have often be said they are given 30minutes outside their cell  per day. The facility equally lacks adequate programming for its population.

[Picture taken from: https://www.cbc.ca/news/canada/north/baffin-correctional-centre-inmate-riot-iqaluit-1.4715657]

BCC houses some of the most vulnerable people in Nunavut. Accordingly, many individuals who are detained at BCC live with serious mental health issues, substance abuse, and/or trauma that must be properly treated. The facility itself and the programs  it offers (or lack thereof), fall completely short of offering many individuals detained at BCC the treatment they need and deserve. It is also important to remember that many of the people detained at BCC are still presumed innocent, therefore have yet to be convicted of a crime.

Prior to the riot in June, I had used an interview room to speak to a client about their upcoming court appearance. The client I was seeing struggled with serious mental health issues. As him and I sat down in the interview room, I noticed someone had engraved words into the wall saying: “Kill yourself so you don’t need to live in this shit hole.” The situation was extremely upsetting. As I sat with my client with severe mental health concerns the words on the wall reconfirmed to me that BCC and many other facilities across Canada, are doing more harm than good to people in serious need of support. An ethos of rehabilitation has not yet been fully embedded in our prison systems.

The riot which occurred in June 2018, was the second riot at the Iqaluit jail in less than a year. Last September, multiple inmates had damaged 85 per cent of the building’s medium-security bed space. There have been various other riots at BCC since it was first constructed. Inmates have stated that they lashed out in June again to bring attention to the deplorable conditions in the jail.

In an interview with CBC, Director of BCC JP Deroy and Satah Smith a policy analyst at BCC, made statements about the riot and the prison:[3]

“It’s going to happen again. It will. As long as we have this building, and we’re dealing with these issues, it’s going to happen again.”

 “Now, take the same inmates and put them in a proper facility. Different story. Completely different story. In general, they want to help themselves,” Deroy said.

 “For the sceptics who want to put this on the inmates and say the inmates are bad people, or maybe even the staff are bad people, we’ve seen the success,” Smith added.

 Smith, too, added as long as BCC is open, riots will happen again.

 “This building has far exceeded its life-cycle, and we’re just seeing the repercussions of it now. It’s not like our inmates are getting more bad, or savvy, or whatever,” she said.

If we know riots will continue to occur, what are we doing to change this reality?

Prisoners remain human, with human rights that cannot be violated. Accordingly, prisoners have the right to be safe from cruel and unusual punishment. It is imperative that facilities which house those who have been detained seek to rehabilitate, not punish or ignore basic human rights. Prisoners detained at BCC will one day return to their communities. Nunavut Corrections and the Canadian Department of Justice are currently failing these inmates and these communities.

 

[1] http://www.oag-bvg.gc.ca/internet/English/nun_201503_e_40255.html

[2]https://www.canlii.org/en/nu/nucj/doc/2015/2015nucj16/2015nucj16.html?autocompleteStr=R%20v.%20Uniuqsaraq&autocompletePos=1

[3] https://www.cbc.ca/news/canada/north/baffin-correctional-centre-jail-conditions-riots-1.4720831

A tale of two ideals

By Roxanne Caron

My work this summer at the Centre for Law and Democracy (CLD) focused on issues of access to information, government transparency and freedom of speech. A significant component of what this NGO does is the evaluation of access to information policies put out by countries. This right to information (RTI) rating, with a possible total of 150 points, evaluates many different aspects of government transparency and the concrete implementation of a citizen’s right to access information, such as the existence and strength of an oversight body, the possibility to appeal a decision, clearly defined and not overly broad exceptions to this access, clear, identified and easy procedures to request information and obtain a reply in a swift manner, and so on.

In relation to this, one of my tasks this summer was helping in the evaluation of a forthcoming policy from the Inter-American Development Bank aimed at its private sector arm, IDB Invest. I quickly learned that a lot of reading between the lines was involved with evaluating these policies, and that the devil truly was in the details. Even with the very clear assessment grid from the RTI rating, my first draft overlooked many important issues, and the comments that came back to me made me realize it is ill-advised to consider most of the criteria as black and white, and to look for nuances and crucial details in how they are worded, framed and implemented. A longer second look at the policy showed gaps that affected the document’s potential to truly enhance access to information. A good thing however was that IDB Invest itself invited this type of assessment, as it opened a 6 months public consultation period on the recently written draft. The final and official document should then see the light of day somewhere in late 2018 or early 2019, hopefully reflecting the comments CLD and other organizations and experts formulated on the draft.

As mentioned, a key aspect is the implementation of these policies themselves. Even if the policy is perfect on paper, there needs to be a further assessment on how it translates on a day-to-day basis in the country or organization where it stems from. This idea of implementation is at the heart of the Sustainable Development Goals that are following the Millennium Development Goals that completed its cycle in 2015. Assessing the effective implementation of policies proves to be a lot more difficult than assessing the policies as a written document. How to make sure prescribe delays are respected? That the appeal mechanism described is indeed accessible for citizens making requests? Fact-checking this kind of details is a time-consuming endeavor, that requires a lot more knowledge about the country or organization’s operation. Furthermore, providing access to information engages costs, and may sometimes pit other values or principles against it.

This fact has never been clearer to me than when the topic of access to information in Canada came up around some excellent craft beer in the North End neighborhood of Halifax. In Canada, there is a large backlog of documents that could be made freely available online, but are not since they ought to be translated (in most cases from English to French), and publishing unilingual documents would go against other federal government principles. This results in most documents being available only on a per request basis, which significantly hinders the free flow of information. For some around the table, the way to go was evident: documents should be released, and if not in the two languages, at least in the language they were originally written – this is what would promote greater access to information, after all. For others, though, it was a more complex issue. As I said before, most documents are originally written in English.

Publishing original documents regardless of initial redaction language would without a doubt end up giving a lot more weight and space to English information on federal websites. This sat uneasy for some around the table, myself included. At the time however, I couldn’t really explain in great detail why this was the case. I understood and still think of access to information as a crucial human right to ensure a free and equal civic society. But something about this “better than nothing” stance did not work for me. Furthermore, as the daughter of two unilingual francophones, I also knew that the argument uttered by anglophone colleagues that “everyone spoke some basic English, even in Quebec”, was far from the truth. After a few weeks, I came across a short op-ed in La Presse, Le français n’est pas une langue secondaire, which put in better words the concerns I had with by-passing language requirements to strengthen access to information. The text commented on the poor quality of the French documents available on the Canadian website for tendering. The Commissaire aux langues officielles found that not only some documents were published in English only, the majority of documents that were published in French and English were not translated in a consistent and quality manner. This creates a situation which is far from the “two official languages” concept found in federal statutes.

This op-ed worded better than I could why I was uneasy with the argument that publishing documents in English was better than nothing. I am not saying that it should absolutely not be done, but forgetting the issue of language inequality in the context of access to information does not serve, in the end, the very same ideals this right aims to defend. This post has been a long time in the making, simply because I continued thinking I would clarify my stance on this eventually. This has not been the case. I am still thorn between two ideals that each need to be upheld, in a scenario where imposition of one over the other necessarily brings out some cost. The best I can hope for, however, is that the debate around this issue continue to bring those two ideals together and acknowledge the potential setbacks of each option. Implementation of access to information policies is a multidimensional endeavour, and the example of the translation problematic in Canada is a good example of the challenges each country may face when furthering access to information. I can only thank Halifax’s wonderful craft breweries for providing the perfect background for animated, and necessary, discussions on these issues.

Selling Justice Short: Reflections on Reconciliation, Accountability, and Weight Loss

By Tiran Rahimian

A night view of the Empire State Building, where HRW’s offices are located.

One of the very first remarks made by my darling mother upon my return to Montreal was, perhaps unsurprisingly, that I had lost a fatally dangerous amount of weight. At first, I curtly brushed off the observation as an archetypal exaggeration of maternal love. But confronted to the cold, hard numbers of our bathroom scale, I couldn’t help but ponder on the reasons of this incontrovertible reduction of my body mass. It surely wasn’t malnourishment? I spent the equivalent of my Montreal rent every month at the delightfully nutritious Whole Foods Market buffet near Bryant Park. Certainly not over-exercising either? As much as I liked to profess to my friends that I was jogging every morning in Central Park (in part by recycling saved snaps of the same run over and over again), I simply lacked the stamina and willpower to stick to a proper cardio routine.

I realize that, surely for physiological reasons beyond my understanding, I tend to lose significant weight whenever I’m pushed out of my comfort zones for a protracted amount of time. I lost weight when, after a comfortable upbringing in Montreal, I returned to my native Tehran to finish my middle school. I also lost weight in my first months of law school, and again when I began clerking at the Court of Appeal last year. And HRW undeniably fit into that trend: my time in New York city profoundly challenged me on both intellectual and personal fronts, and, while ultimately cementing and confirming many of my previous convictions, compelled me to go through a long process reflection on of some of the drivers that had underpinned my interest in international justice.

“I would give all my fame for a pot of ale…” –Henry V. A riotous mix of high art and low comedy, Drunk Shakespeare is an Off-Broadway must-see where a professional actor ups six shots of Whiskey before embarking on a classic Shakespeare performance.

In IJ circles, the enduring debate on whether seeking accountability for grave international crimes interferes with prospects for peace is close to always brushed off with the self-evident response that there is ‘no peace without justice’. But the tension, I came to learn, is anything but axiomatic. With the inception of the UN Security Council Commission of Experts for the Former Yugoslavia in October 1992 – at a time when the UN-EU International Conference was already managing a peace process – the stage appeared set for a tense relationship between accountability for core international crimes on the one hand, and international mandates for peace and reconciliation on the other hand. The already polarized ‘peace versus justice’ debate crystallized with the establishment of the International Criminal Tribunal for the Former Yugoslavia in 1994, paving the way for a broad discourse on the compatibility of the two.

South Africa’s Truth and Reconciliation Commission– and its wide media coverage following the fall the Apartheid government – was heralded by some ‘peace-before-justice’ proponents as demonstrating the importance of pacifying, or at least postponing, calls for criminal justice accountability until after peace has taken proper hold. The temptation to suspend justice in exchange for promises to end a conflict has similarly arisen with respect to the International Criminal Court’s work in places like Darfur and Uganda, and threatens to recur in coming years as conflicts in Syria, Afghanistan, and Myanmar approach their conclusion. Thankfully, the symbiotic relationship between peace, justice, and building a sustainable culture of human rights isn’t merely heralded as a self-evident truth, but has also been subject to empirical analysis by scholars and organizations like HRW itself.

Slight cultural shock

Rereading myself, the relationship between my weight loss and reflections on justice and reconciliation is perhaps…spurious. But I still like to think that my time working at HRW pushed me out of my professional and intellectual comfort zones, and was ultimately one of personal growth. Witnessing firsthand the inner workings of an NGO as influential and remarkable as HRW, hanging around diplomats at UN meetings, and working on the most pressing matters of international justice across the globe will certainly stand out as one of the more delightful challenges of my time at McGill law.

« Older Entries
Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.