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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.

Les règles de l’hospitalité

Par Renaude Morin

Nous étions un groupe d’amis en randonnée dans la région de Taza. La nuit allait tomber et la fatigue nous gagnait. Onze heures de marche et nous étions encore loin de notre site de campement. Alors que la journée s’était écoulée sans trace de présence humaine, une petite figure entourée d’une vingtaine de moutons se dessina sur le flan d’une montagne. C’était un berger qui rentrait son troupeau au bercail. Il vient à notre rencontre et insista pour que nous venions passer la nuit chez lui. Dès notre arrivée, la maisonnée s’activa. On mit le thé à bouillir, le pain à chauffer, le tajine sur le feu. Un vrai festin. Le lendemain, on m’assura que notre hôte avait été compensé pour sa générosité, mais sans me donner les détails. J’étais agacée : j’avais l’impression de devoir quelque chose à quelqu’un.

Des situations similaires se répétèrent souvent pendant mon séjour au Maroc. À Belyounech, ce fut Khaoula, une jeune femme de mon âge, qui fût ma guide pour gravir le Jbel Moussa et m’hébergea pour quelques jours. À Tétouan, ce fut Souhail qui me fit faire le tour de la ville et m’offrit le repas. À Rabat, ce fut Lotfi qui m’offrit un toit après des embûches avec mon ancien colocataire. À Agouti, ce fut une famille qui nous recueillit sur le bord de la route alors que, sans succès, nous faisions du pouce à dix heures du soir.

À chaque fois, je me retrouvais dans la même situation : je ne savais pas quoi donner en échange. L’argent est à éviter, m’avait-on dit, car mes hôtes pourraient s’en offusquer. De la nourriture, des gâteries à déguster? Seulement s’il y a des commerces ouverts à proximité. Et puis, quoi? Et quelle quantité? La plupart du temps, je me retrouvais à passer en revue les objets dans mon sac pour trouver quelque chose d’intérêt à donner ou je dessinais un truc que je laissais discrètement derrière…

Malgré tout, je repartais avec le sentiment que j’avais profité de mes hôtes. On me répéta encore et encore : ce que tu donnes n’est pas grave, c’est donner qui est important, c’est l’intention qui compte. C’est l’intention qui compte. Pour moi, cette phrase était utilisée pour se faire pardonner une erreur commise, une gaffe, un cadeau pas super, une recette gâtée… Bref, c’est donner comme excuse « la bonne intention » pour justifier les conséquences de nos actions. Après tout, un autre proverbe dit que l’enfer est pavé de bonnes intentions. Je n’arrivais tout simplement pas à justifier mes (très modestes) cadeaux par mon intention.

Naviguer les eaux de l’hospitalité marocaine, c’était pour moi tenter de comprendre un système de règles, de devoirs et de droits qui m’étaient inconnus. Le père d’une famille qui m’avait hébergée m’offrit certains repères dictés par le Coran et les hadîths : honorer son invité est une vertu et un devoir, car ici l’hospitalité est un droit plutôt qu’une faveur. Il m’expliqua que le prophète Mohammed a dit : « Quiconque croit en Dieu et au Jour Dernier, qu’il honore son invité comme il en a le droit. »  On lui demanda alors : « Et quel est ce droit, ô messager de Dieu? »  Il dit : « Le meilleur traitement pour un jour et une nuit.  Et l’hospitalité est pour trois jours et tout ce qui dépasse ces trois jours est considéré comme une charité de la part de l’hôte. » (Hadîth rapporté par Sahih Al-Boukhari).

Malgré les lignes directrices qu’on m’avait offertes, j’avais la théorie du droit de Hart qui me trottait dans la tête: je demeurais un observateur qui n’arrivait pas totalement à adopter le point de vue interne, à accepter et à utiliser les règles pour guider sa conduite. Ce fût un bon rappel : les règles de l’hospitalité, tout comme le droit plus généralement, sont une pratique humaine régie par des normes, des principes, des valeurs, des attitudes, des idées.

Ce qui m’empêchait de comprendre les règles de l’hospitalité marocaine n’était pas mon ignorance des règles (plusieurs hôtes ne connaissaient même pas les spécificités dictées dans les textes sacrés). En fait, c’était plutôt, de un, que j’attribuais trop d’importance à la valeur monétaire de l’échange. Pour moi, la réciprocité, c’était d’offrir quelque chose qui avait la même valeur que ce qu’on m’avait offert : une nuit, deux repas… je faisais des calculs pour obtenir « le compte exact ». De deux, je me préoccupais trop des « règles » et « actions » plutôt que de ce qui les motivaient : l’intention. Je devais apprendre à accepter que l’intention compte indépendamment du résultat. Dans un hadîth rapporté par Al-Boukhari et Mouslim, il est dit que « les actions ne valent que par les intentions qui les motivent et chacun n’a pour lui que ce qu’il a eu réellement l’intention de faire… ».

Petit à petit, de foyers en foyers, j’ai commencé à saisir la vraie valeur de l’intention et, peu à peu, j’ai commencé à accepter de recevoir et de donner sans gêne. Le stress initial s’est atténué et m’a permis de me sentir chez-moi un peu partout à travers le pays. Comme l’écrit l’anthropologiste Wade Davis: « the full measure of a culture embraces both the actions of the people and the quality of their aspirations, the nature of the metaphors that propels them onward ».

Attentes et découvertes

Par Elisabeth Beauchamp

Au début de mon stage, j’ai été un peu effrayée en constatant la légèreté de mon horaire de travail. Tout ce temps libre que j’avais devant moi, comment allais-je l’utiliser ? Cependant, au final, mon temps libre m’a permis de beaucoup en apprendre, surprenamment même, sur les mots ‘human’, ‘rights’, et ‘work’. Je reviens à Montréal avec plus de questions que de réponses, ce voyage n’ayant pas confirmé des idées que je possédais déjà, mais bien plutôt ouvert des fenêtres dont j’ignorais l’existence.

Grâce à la flexibilité de mon horaire et suite à la suggestion du stagiaire précédent, j’ai pu obtenir une journée de congé pour aller visiter une institution pour personnes handicapées dans la campagne serbe. Cette visite a été une opportunité de comprendre l’ampleur du travail nécessaire dans le cadre des droits des personnes handicapées en Serbie.

L’institution est si éloignée dans la campagne qu’elle est virtuellement inaccessible. Les gens de la région étaient complètement ahuris de savoir que je m’y rendais. Quasi tous les résidents de l’institution ont été privés de leur capacité juridique. On m’a expliqué que plusieurs y ont été placés contre leur gré, et qu’aucune réévaluation de leur statut n’est effectuée. À partir du moment où ils sont jugés « incapables » de prendre des décisions, ils conservent ce statut et restent dans ces institutions pour longtemps.

Beaucoup de femmes ont voulu me raconter l’histoire de leur vie, et la travailleuse sociale peinait à traduire de manière cohérente. Celles qui avaient des enfants voulaient me montrer les photos de ces derniers, dont elles ont toutes perdu la garde et avec qui elles ont souvent perdu tout contact. L’une de ces femmes m’a montré une photo d’elle avec une jeune fille. La travailleuse sociale m’a expliqué qu’il s’agissait de sa fille, qui lui a été retirée à la naissance, et qu’elle avait revue pour la première fois le jour où la photo a été prise; elle m’expliqua que c’était un moment très important dans la vie de la dame, et qu’elle voulait le partager avec moi. En même temps, plusieurs autres personnes essayaient d’attirer mon attention. Elles voulaient me montrer leurs vêtements, l’une d’elles m’a demandé de l’appeler ‘maman’, parce que sa fille lui manquait. Une seule parlait l’anglais, et elle m’a dit : ‘You, do you speak English ? Listen well and remember what I say. My name is N., I miss you house, I miss you boyfriend, I miss you coffee, I miss you sugar, I am not happy here, I want to go home. Did you listen? Did you hear what I said?’ Une vieille dame m’a saisie par le bras et m’a répété plusieurs fois qu’elle aussi voulait partir. La travailleuse sociale m’a expliqué qu’elle est là depuis qu’elle a 13 ans, lorsque que sa grand-mère est décédée, et qu’elle a été placée là par sa famille. Les chances qu’elle sorte paraissent malheureusement inexistantes.

La visite de l’institution m’a permis de constater combien la loi qui régit présentement la capacité juridique est problématique, ou tout du moins n’applique pas vraiment les standards prévus par la Convention relative aux droits des personnes handicapées. Je me suis néanmoins aussi rendue compte que même la restitution du « droit à la capacité juridique », ou de n’importe quel autre droit, ne suffira jamais pour tout redonner à ces personnes – par exemple, le droit ne leur redonnera pas une famille qui les aime comme ils sont, ou les années passées loin de leurs enfants.

Cette visite m’aura toutefois permis d’être aussi le témoin du travail discret de certaines personnes, telle que la travailleuse sociale qui m’accompagnait et de ses collègues, et du dévouement de ces dernières pour rebâtir un environnement plus humain malgré toutes les contraintes imposées par le système.

Mis à part cette visite, mes après-midi libres m’ont permis, dès la première semaine, de rencontrer dans mon quartier Kristina, une femme exceptionnelle qui habitait sur ma rue. Kristina est une religieuse et doit avoir aux alentours de 70 ans. Au-delà des récits fascinants de sa vie pendant la période communiste, que j’aurais pu écouter pendant des heures, l’histoire et la présence de Kristina m’ont aidée à aller au travail et, plus généralement, à vivre en Serbie.

Plusieurs fois, le rythme de travail au bureau où je travaillais était lent, et le sens de ma présence, difficile à saisir. Un jour, ma tâche consistait à faire des allers-retours entre le bureau de ma collègue et la machine à numériser, une mission quelque peu répétitive et différente de mes attentes. Mais quand j’ai dû numériser la pile de papiers qui m’était assignée après avoir entendu l’histoire de Kristina, je ne pouvais pas m’empêcher d’être contente de partager cette tâche avec ma collègue, parce que chaque aller-retour me rappelait mon amie, et combien elle était heureuse de partager la vie des gens de Belgrade, même en faisant un travail aussi simple que celui de laver les planchers.

Un autre jour, j’ai pris une marche dans mon quartier avec Kristina. Elle saluait chaque personne qu’elle voyait sur la rue, autant les passants que les gens qui travaillent dans les magasins. En marchant avec elle, je me suis rendue compte de l’existence de mes voisins, et de la fille chez qui j’achetais mes tomates le matin. Avec elle, les figurants de ma solitude sont devenus des personnes réelles. Avec elle, j’ai donc découvert une manière plus humaine de travailler et de vivre.

Kristina m’a aussi conseillé de m’inscrire à un cours de Serbe, si je voulais vivre en Serbie pendant trois mois, plutôt que d’y être une touriste pendant trois mois. Au cours de Serbe, j’ai rencontré mes amies Fei et Soha, qui viennent respectivement de la Chine et de l’Égypte, et qui espèrent s’établir en Serbie. Avec ces deux amies, je me suis rendue compte du privilège que j’avais, avec mon passeport canadien, d’avoir autant de mobilité en Europe et dans les Balkans.

Lorsque nous apprenions les verbes modaux (devoir, pouvoir, vouloir, etc.), j’ai réalisé que, face à la question de l’enseignante : « Devez-vous apprendre le serbe ? » ma réponse était non, je ne dois pas, par contre je le veux, mais la leur était : oui je le dois, parce que je dois me trouver un emploi. Rester avec elles fut un cadeau enrichissant, parce que j’ai constaté qu’elles percevaient la Serbie comme un endroit où il y avait une promesse pour leur vie et où un avenir les  attendait, alors que moi j’étais arrivée en sachant que j’allais en repartir éventuellement.

Pendant le reste de mon séjour, je me suis  posé la question, comment est-ce que le temps passé ici peut ne pas être seulement une parenthèse dans ma vie? Je n’ai pas encore formulé de réponse, mais l’amitié avec Fei et Soha a semé la question.

Tout compte fait, ce stage fut très différent de ce que j’avais imaginé avant de partir. Plus exigeant du point de vue de l’initiative et de l’autonomie, mais aussi beaucoup plus enrichissant du point de vue personnel. Je suis reconnaissante de ce que j’y ai découvert, et de tous ceux que j’ai eu la chance de rencontrer.

Making a Case for Privacy as a Human Right

Maia Stevenson

Being a law student interested in privacy rights, I frequently hear the following two comments, respectively:

Only people who have something to hide are worried about privacy”,

 and

Privacy is a concern for the privileged”.

I disagree with both comments.

Before I interned with the Privacy, Technology, and Surveillance Project at the Canadian Civil Liberties Association this summer, and before I began law school, I had a fairly robust sense of why I disagreed with the comment that privacy is only a concern for those who are breaking the law.

I disagree because of an appreciation for the value of political dissent and because of an unwillingness to fully welcome any government, including a modern, liberal, democratic one, into one’s home, personal relationships, and inner intellectual life. While as Canadians, we may not feel like we live in a police or surveillance state, one where activists, political dissidents, and other citizens are spied upon and persecuted, such realities are close enough at hand[1] to warrant appropriate safeguards for Canadians’ privacy.

It is not only drug traffickers and child pornographers who value a right to privacy: other political, religious, moral, artistic, and personal opinions and expression, especially those that deviate from a norm, are stifled or self-censored when citizens do not believe that they have a space in which to exist, develop, and share, shielded from the eye of the state, the public, or their peers.[2] Even if you don’t believe that you will never be in need of this sphere of privacy, the fact remains that our political and legal systems are built upon principles of freedom; they are strengthened when citizens have the theoretical capability of experimenting with opinions and ideas, without fear of serious repercussion. Privacy law protects the mind of the citizen as the most fundamental realm of individual privacy; it is not a crime to think about breaking the law, for example.

As for the comment that privacy is a concern only of the privileged…

Perhaps I hear this comment made in part because nowadays the phrase “privacy rights” calls to mind a locked iPhone containing encrypted communications, an embarrassing Internet browsing history, and online banking passwords. Not exactly the stuff of “human rights”.

Or maybe we find it hard to place value on something we regularly and freely relinquish to corporations in the name of convenience, efficiency, and connectivity.

Whatever the reasons, I agree that if we’re abstractly ranking Charter rights Maslow’s hierarchy style, then privacy rights seem to intuitively come second to other human rights; I think, the idea goes, that it is only after one has secured more basic human rights that the value of a private life starts to take form.

However, it is misleading to think of human rights in distinct silos. Issues of equality, race, and class overlap frequently with issues of privacy. Invasions of privacy by the state as they occur on the ground in Canada disproportionately affect the members of poor, racialized communities. The degree of privacy one enjoys is correlated to their wealth and historic interaction with the state: how advanced is your technology, how long is your driveway, how high is your fence, are you a guest, tenant or property owner, how good is your lawyer, how assertive of your rights is it safe for you to be in front of an armed policeman?

The CCLA is intervening in a case at the Supreme Court of Canada this autumn in which the police, without reason or warrant, walked into the backyard of a young black man, and after an exchange, arrested his friend/guest.[3] This occurred in a social housing complex in the neighborhood I lived in this summer in Toronto. To the CCLA and others, this case raises important issues at the intersection of privacy, race, and class:

In Canadian law, the Edwards test is used to determine whether or not someone has a “reasonable expectation of privacy” (REP) in a space. According to this test, the type of property and the control and ownership of that property (or lack thereof), factor greatly in the determination of the REP. The result is that the privacy of those who can prove a certain type of residency (exclusive occupation of a space, ownership) is more readily recognized than the privacy of those in other types of residency (non-exclusive occupation, non-ownership). Someone who lives in a social housing complex or an apartment building, someone who is temporarily living rent free at a friend’s or partner’s residence, or someone who doesn’t have a place to live at all, likely has less of a right to privacy than someone with a fence, a long driveway, and space reserved exclusively for themselves. Logically, this answer to the question of “what was your reasonable expectation of privacy?” makes sense: I live in the country, my driveway is a kilometer, I have clearly demarcated property lines; suffice to say I would be very shocked to encounter anyone but my family in my backyard. But are logical answers enough of a reason to continue using a question that yields discriminatory results, in an area as important as the state’s interaction with citizens?

This is but one example of how “privacy rights” are not free-floating, second-order human rights. To say that privacy is a concern of the privileged is to assume that we all experience “rights and freedoms” in the same way. The privacy that a citizen is afforded is closely related to the respect her state has for her, her human dignity, and her freedom, all of which are subject to differential treatment.

 

 

[1] Russia, China, Turkey, Saudi Arabia, for example.

[2] For scholarly work on the importance of privacy, see: James Rachels, “Why is Privacy Important?” (1975) 4 Philosophy & Public Affairs; Jean Cohen, Regulating Intimacy: A New Legal Paradigm (Princeton: Princeton University Press, 2002); Julie Inness, Privacy, Intimacy, and Isolation (New York: Oxford University, 1996); Stanley Benn, A Theory of Freedom (Cambridge: Cambridge University Press, 1988); Robert Gerstein, “Intimacy and Privacy” (1978) 89 Ethics.

[3] You can read R v Le, 2018 ONCA 56 here: https://www.canlii.org/en/on/onca/doc/2018/2018onca56/2018onca56.pdf

A Genocide Forgotten, No More

By: Eleanor Dennis

Walking around downtown Windhoek, it is common to see streets named after German philosophers or musicians and finishing with “Strasse” rather than street. In the popular vacation town of Swakopmund, German-language bookshops outnumber English or Afrikaans shops, the architecture could be mistaken for buildings in Bavaria and it is even common to walk several blocks before hearing any language other than German spoken. Indeed, for a country twenty-eight years free from South Africa and over one hundred years free from German control, so many German colonial markers still exist in Namibia that on the surface it may seem like the wounds inflicted upon the Namibian psyche from German colonization have been healed– they have not.

Lüderitz is the site of one of the five former Namibian concentration camps.

The first colonial claim on Namibian lands came in 1797 when Britain occupied Walvis Bay, and for the next two hundred years Namibian territory remained under the control of different colonial powers. In 1883, German trader Adolf Lüderitz bought the coastal area that now bears his name, and from that moment on German troops were deployed and gained control of Namibia, then known as German South West Africa. While some of these details are known and spoken about in public discourse, many of the atrocities that occurred at the German’s hands in Namibia were left largely unaddressed and unknown by the international community. Thanks to a very important court case that is currently being litigated in New York, this has begun to change.

Genocide and the Reparations Debate

From 1904 to 1908, Germany committed genocide against the Nama and Herero people of Namibia in what the UN Whitaker report [1] has now acknowledged as one of the biggest genocides of the 20th century alongside the Ottoman massacre of the Armenians, the Khmer Rouge and the Holocaust. The Herero people had commenced a rebellion against the German soldiers and settlers at the time and the German military ordered the extermination of their people as a result. Thousands of both Herero and Nama people were killed or driven out into the desert to die, and those who survived were interned in concentration camps around the country and systematically starved and worked to death. The result was the annihilation of 80% of the Herero people and 50% of the Nama people in an extermination so massive the ramifications are still felt in these communities to this day, although no reparations have been paid to date.

The affected communities of this genocide have been seeking reparations for these atrocities for many years, but their efforts have been fruitless. In 2001 the Herero people filed a $4 bn lawsuit against the German government and two German firms, however their claims was dismissed on the grounds that international protection of civilians did not exist at the time of the conflict [2]. It was only in 2004 that the German government formally recognized the colonial-era genocide and issued an apology [3] however they maintained that there would be no compensation for the affected communities. In 2015, the German government officially recognized the atrocities constituted genocide, but ruled out reparations again to the more than 100,000 victims [4]

Members of the Nama Traditional Authority in Hoachanas, Namibia

This begs the question of whether Germany now recognizes the genocide as a crime under international law. While German politicians have acknowledged the genocide in a series of public statements in recent years, the state continues to submit legal documentation to the court that denies that the event constitutes genocide.

Current Case

This brings us to today, when Herero and Nama chiefs have yet again brought a class action lawsuit [5] against Germany accusing the state of genocide, theft, and expropriation of property when Namibia was under German colonial rule. Their demand is simple: reckoning with colonial-era atrocities and reparations akin to what was paid to Holocaust survivors. What is interesting in this case is that it is being pled in New York in U.S federal court under the Alien Tort Statute established under the Foreign Sovereign Immunities Act. This tort has been interpreted to allow foreign citizens to seek remedies in U.S courts for human-rights violations for conduct committed outside the United States in order to give a global remedy for breaches of international law (see Sosa v Alvarez-Machain case for more info).

The problem that their cause has encountered is one of jurisdiction, because the Kiobel v Royal Dutch Petroleum precedent set in 2013 establishes that the Alien Tort Statute should not apply to crimes that do not touch and concern the U.S. In order for there to be a firm basis for jurisdiction in the US under the Foreign Sovereign Immunities Act, the Herero and Nama need to demonstrate that wealth derived from the property taken during the German colonial period has a direct link to commercial property in the US.

The lawyer for the plaintiffs Ken McCallion has put forth the central argument that the Kiobel case leaves the door open for U.S courts to gain extraterritorial jurisdiction over cases of genocide. He maintains that a number of German properties in New York were purchased as a direct result of the wealth accrued from slave labour and expropriation of property during the genocide. Furthermore, he has argued that the sale of genocide victims’ human remains to the American Museum of Natural History demonstrates a valid commercial link between the genocide and American Commercial interests. Germany’s lawyer has countered that the presence of skulls at the museum was the result of a private donation from a German anthropologist and not a commercial exchange and argues as a result that the U.S does not have jurisdiction over the case.

As of August 1st, 2018 the case has been adjourned by Justice Swain who will deliver a decision in the coming weeks. As more information becomes available, I will update this post with the results of the case.

Acknowledgement and Awareness

Members of the LRDC fight for constitutional justice for all Namibians

From the current court case to my experience during my 3.5 months in Namibia, an important theme arises for me as both an intern at the LRDC and a law student in Canada that may tie this blog post together. Living in Windhoek as an outsider who had the immense privilege of working in Namibia and meeting and forming bonds with the people there, the question of how useful acknowledgement really is came up for me time and time again.

In Namibia there are many young German expats living and completing internships and the reality of the extreme social and economic inequality is that German Namibians continue to hold a large percentage of the land and wealth in the country. The German government has acknowledged the genocide and provides generous economic aid for Namibia (which currently amounts to $14m per year [6]however for Nama or Herero individuals who have been set back by the killings of their ancestors 100 years ago, these acknowledgements may fall on deaf ears. What does it mean to really acknowledge past wrongs? If victims demand reparations and are denied, does this deflate the acknowledgement?

There are many cases of reparations being won, and examples varying from the U.S paying reparations for Japanese-American internees to Canada agreeing to pay compensation to the residential schools victims [7] show that possible, though imperfect solutions do exist to begin to address past injustices. On the other hand, many reparations cases leave victims without any relief at all and reparations fall far from the only solution required to support victims and their communities.

Thus, more uniform and universal approaches are needed to address this issue and reduce the struggles experienced by the survivors and the families of victims in accessing reparations for mass atrocities. For the moment this will not help the Nama-Herero cause. What may truly help more than acknowledgement, however, is awareness.

Germany’s genocide in Namibia was forgotten for many decades by the international community, however this is beginning to change. In 2011 a popular book was published that has increased international awareness of the Namibian genocide called The Kaiser’s Holocaust: Germany’s Forgotten Genocide and the Colonial Roots of Nazism. In addition, the current case as well as Germany’s acknowledgements post-2000 have helped to increase international awareness of this issue and there is real hope that Nama and Herero families will receive compensation. The more this issue becomes discussed in the international community the more pressure will increase upon the German government to not treat Namibian victims differently than victims of the Holocaust and receive the compensation that they deserve. A genocide and victims forgotten, no more.

[1] http://www.preventgenocide.org/prevent/UNdocs/whitaker/ 

[2] https://www.theguardian.com/world/2004/aug/16/germany.andrewmeldrum

[3] http://news.bbc.co.uk/2/hi/africa/3565938.stm 

[4] https://www.forbes.com/sites/ewelinaochab/2018/05/24/the-herero-nama-genocide-the-story-of-a-recognized-crime-apologies-issued-and-silence-ever-since/#768bd62a6d8c 

[5] https://www.forbes.com/sites/ewelinaochab/2018/05/24/the-herero-nama-genocide-the-story-of-a-recognized-crime-apologies-issued-and-silence-ever-since/#768bd62a6d8c 

[6] http://news.bbc.co.uk/2/hi/africa/3565938.stm

[7] https://www.theguardian.com/world/2017/oct/06/decades-after-government-seizure-of-children-indigenous-canadians-will-receive-compensation

 

Keeping Warm During the “Cold” Rainy Season

By Yulia Yugay

Contrary to popular belief, I did not roast under the Kenyan sun for three months. In fact, we caught the second half of the rainy season and stayed in Kenya during the coldest months of the year. In July, the temperature can go as low as 15 degrees; it is at this time that people take their warm leather or down jackets out, wear long thick scarves and hats. In other words, when Nicole and I went outside wearing a blazer or a light sweater, Kenyans thought we were the most warm-blooded people that have lived on this earth. Unsurprisingly, when they found out about average winter temperatures in Canada, they could not believe their ears.

In Meru Law courts with a public prosecutor and Nicole

These differences in perspectives were obviously not limited to climatic issues, which is why my experience in Kenya makes up a full spectrum of emotions. One of the most shocking, yet unsurprising, things we’ve witnessed is the treatment we received, as wazungu (white people) during official events, from government officials and people on the streets. When visiting police stations while trying to find out the status of a case, going to the office of the Director of Public Prosecutions to follow up on the progress of an appeal, or when asking for help from court staff, we were offered a seat in the waiting room, directed to the right person or given an answer. While this sounds totally ordinary, our Kenyan colleague said that he felt like he was in a different country. Later we were told that this was due to the fact that everyone thought we were “important” people who are coming to check on their work.

Another instance where we got preferential treatment because, once again, people thought we were “important” was at the celebration of the Day of the African Child. We were officially greeted, given water bottles, and seated right next to a highly ranked government official whose arrival (30 minutes late) required the interruption of the entire parade. This time, we received special treatment because it was very likely that we were some of the donors who sponsored the event. While this treatment can be understood, it also showcases a frustrating reality: an experienced university graduate working in a Kenyan NGO with issues as important as defilement cannot always do their work as efficiently or to the same extent as two foreign students who do not even speak decent Swahili.

Justice Clubs launch event at Ncuui Primary School

With that said, there was an overwhelming amount of wonderful people, customs and precious moments that kept us warm in fifteen degree weather and in spite of the different surprises on the way.

One of the highlights of my internship were the school visits we paid within the framework of the Justice Clubs initiative. The objective of the Justice Clubs is to educate a group of primary school students about human and children’s rights, the 160 Girls decision, and the issue of defilement more broadly. Selected students learn the curriculum through specifically designed workshops and activities and then pass the message on to the rest of the school and members of community during launch events and closing community shows. Having visited and selected the schools and trained the teachers (Justice Club patrons), it was extremely comforting to see the effort, dedication and enthusiasm that both the school administration and students had invested into organizing, preparing for and performing at the launch events. The level of student engagement and parent participation instills hope that the Justice Clubs initiative contributes to women’s and girls’ empowerment and brings us one step closer to the longterm, systemic change.

At the tea plantation with a group of strong and beautiful women

However, every moment spent with the girls at the Tumaini shelter was, without a doubt, the most memorable and heartwarming. Working with their individual cases, knowing their stories made my work very emotionally challenging. Nevertheless, all the time spent cooking, playing, reading, colouring books, and painting nails with the kids added the invaluable human component to the human rights work I did all summer. I cannot stress enough how loving, sincere and generous are these souls who, thankfully, haven’t forgotten how and what it means to be children

To conclude, I’d like to express my deepest gratitude for all the people I met over the course of my three months in Kenya who made up for the many cold and rainy days. I am grateful for the people who introduced me to and taught me to cook some of the best Kenyan dishes. I am grateful for the famous Kenyan tea with milk and sugar, religiously served every morning and afternoon, that I shared with my colleagues (this definitely helped me cope with the unbearably slow wifi or the lack thereof). I am grateful for the lady at the market who always greeted me with a warm smile and threw a couple more sweet potatoes or bananas in my bag. I am grateful for the women working at the tea plantation who welcomed me into their group and showed me how to pluck some of the best tea in Kenya. I am grateful for the friendships created not only with the people in the office, but also with their families. And finally, I am grateful for having been able to experience the sense of community that is so deeply rooted in Kenyan people.

Sunrise at the Maasai Mara National Reserve

Asante sana, my dear Kenya, and until next time.

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