« Older Entries

Seeing Myself in Human Rights Work (by Mariana Furneri)

Ahead of our internships, my peers and I attended information and preparation sessions where we discussed what to expect from human rights work. I remember being told that human rights work can often feel far removed from one’s self – after all, we get to shut our laptops at the end of the day and return to our lives that are typically unaffected by the types of problems facing those in less privileged positions. Though this certainly holds true for many types of human rights work, it did not always turn out to be the case with my work at the Canadian Civil Liberties Association (CCLA). I often saw myself in the work that I was doing.

My first four weeks at the CCLA were spent with the Privacy branch, where I worked on policy reform surrounding the use of facial recognition technology in Canada. Surveillance and the collection of data on Canadians, by corporations like shopping malls or government actors like police forces, is something that affects everyone. It was not difficult for me to recognize that the antiquated state of Canadian privacy laws impacts the way I move through the world, both physically and digitally, and that effective policy reform would produce positive change for everyone.

I am now with the Fundamental Freedoms branch, where I worked on a case in which the CCLA is seeking leave to intervene. The case involves a 24 year-old woman who recently graduated with a Master’s degree in Social Justice and Community Engagement and is now being sued by an anti-abortion group for her online activism. In her TikToks, she encouraged others to sign up for “vigils” outside of hospitals without the intention of ever showing up, which mirrors tactics seen at Trump rallies in the United States. I wrote a legal memo on freedom of expression, the legal limits of protesting, and the impacts of online activism since there is no Canadian jurisprudence on virtual protests. My research was later used in the factum of two partners at a Bay Street firm who were taking on the case on a pro bono basis for the CCLA. Throughout the whole process, I really identified with the defendant and recognized that what happened to her could certainly happen to me, a 24 year-old who also uses social media and is inclined to participate in similar activism.

Finally, I also saw my past self through the education work that the CCLA conducts in their Civil Liberties in the Classroom and Teaching Civil Liberties programs. I remember being in elementary school when my teacher got a poster of the Canadian Charter of Rights and Freedoms for our classroom, and learning more about later in high school when my ethics teacher assigned a creative video project on various Charter rights. I also had the opportunity to sit in on the CCLA’s National Council meeting, where I listened and took notes on progress reports, ideas to continuously improve the organization, funding initiatives, and more. Through this, I saw what long-term future involvement in human rights work could look like.

What my life currently looks like is sitting on my balcony (besides when it’s over 40 degrees outside) and enjoying the company of my neighbour’s husky and cat as I work. It’s a beautiful view, if you ask me.

 

 

Tunisia on the precipice

Five days after the start of my internship at Aswat Nissa, a feminist organization in Tunisia, President Kais Saied published his constitutional project in the Official Gazette. What followed was a whirlwind that taught me the value of democracy, institutions, and the rule of law. Before I dive into what was the most incredible few weeks of civil society advocacy, I want to share a little more about the context of my internship.

A sunset captured from my grandmother’s house in Ezzahra.

This isn’t my first time in Tunisia. In fact, my father is Tunisian, and I have many family members that live here. When I was offered this internship, my heart and mind immediately went to my grandmother, Emna. She lives in the small coastal town of Ezzahra (“the flower”), a few kilometers away from the offices of Aswat in Tunis. Growing up, I only got to spend a few days a year with her, during short summer vacations. Spending the last few weeks with my grandmother and living in the family home, where my father was born and raised, has been incredible. What this means for my internship in Tunisia is twofold; first, my experience is coloured by an attachment and sense of belonging to my homeland, and second, that the current political and economic crisis has been emotionally challenging and overwhelming (I will expand on this in another post).

To understand the current political crisis in Tunisia, I will first start with a short timeline of important events:

  • July 25, 2021: the president invoked emergency powers, fired the prime minister, and suspended parliament in what many critics called an attempted coup. He has since ruled by decree and further consolidated his power by removing key political actors, dismantling political institutions, and dismissing members of the judiciary.
  • December 6, 2021: the president announced his intention to draft a new constitution that will be voted on via referendum to be held in July 2022.
  • June 30, 2022: Saied’s unilaterally drafted constitution is revealed in the Official Gazette. All political parties and civil society have condemned this constitutional project as antidemocratic and ironically, unconstitutional.
  • July 25, 2022: a popular referendum will be held on the new constitution. Civil society and political parties are boycotting the referendum claiming that the process and constitution are anti-democratic.

Caricature published by Aswat Nissa of President Kais Saied mowing over the slogan of the 2011 revolution: Freedom, Dignity, Equality.

Since June 30th (4 days after the start of my internship in Tunisia), the work at Aswat, and in virtually every other civil society organization in the country, has revolved around this new constitutional project. If adopted, the new constitution will threaten the Arab Spring’s only successful democracy and steer the country back into authoritarianism. To name a few changes made to the previous constitution: the civil state is removed, the parliamentary system is replaced by a hyper-presidential system with no checks and balances, and the president has ultimate powers over all three branches of government. Given that the opposition is boycotting the referendum, it is almost certain that the Yes vote will win, and the new constitution will be adopted. The passage of the proposed constitution will consolidate a return to autocracy and jeopardise decades-long advances in human rights.

The Aswat Nissa team carrying slogans for a protest opposing the referendum and the proposed constitution.

As a militant feminist organization, Aswat is leading social media campaigns to raise awareness of the dangers of the new constitution, speaking on radio shows, hosting panel discussions, issuing warnings to international partners, organizing a popular protest, and strategizing with other civil society organizations. I have spent many hours reading and analyzing the proposed constitution and what it will mean for the rule of law and democracy in Tunisia. In parallel with what is happening in the United States and around the world, my trust in democratic institutions has never been weaker. Within a few months, a democratically-elected president – who ironically happens to be a constitutional law professor – unilaterally drafted a new constitution that will change Tunisian society forever.

The other interns and I at a conference organized by the National Syndicate of Tunisian Journalists, Lawyers Without Borders, and civil society organizations developing an action plan to challenge Kais Saied’s proposed constitution.

I cannot really describe the atmosphere in Tunisia right now, other than feeling both eerily normal and alarmingly tense. Tunisia is at the precipice of a democratic collapse, and civil society is scrambling to save it. The next few weeks and months will be full of uncertainties. What is certain however is that grassroots organizations like Aswat will continue to work tirelessly to restore democracy, protect human rights, and honour the hopes and dreams of the 2011 revolution.

And you may ask yourself, well, how did I get here?

The title of this post is taken from the Talking Heads’ 1980 song Once in A Lifetime. In that song, singer David Byrne finds himself living a life that feels foreign and surprising to him. How did I get here? It is a question I find myself wondering bemusedly on an almost daily basis.

I have now been in Namibia for over two months and I frankly cannot believe how incredible the experience has been so far. This country is beautifully desolate, with otherworldly deserts, exotic animals, and the most incredible sunsets and starry skies I have ever seen.

Windhoek itself is a very small, calm, quiet, and safe city; my life here has been anything but small, calm, quiet, and safe.

I have been staying in a backpacker hostel since my arrival, and I’ve met a motley crew of vagabonds, European interns, energetic dogs, artists, and activists. We’ve had tremendous fun travelling the country, and exploring this city on foot, much to the consternation of my local friends and co-workers.

It is difficult for me to be concerned about my safety in this town though, both because it is very quiet, and because I’ve become something of a local celebrity after a video of me with the caption “The almighty Jesus of Nazareth is on holiday in Namibia for 5 days” went viral. It is not uncommon for me to be stopped on the street and asked to pose for a photo.

 

In the desert, you can’t remember your name…

The sundowner — a classic Namibian experience!

I like elephants!

Sossusvlei is perhaps the most incredible sunrise-watching spot in the world. Climbing a dune for an hour and then running down in 30 seconds is also a highly recommended experience.

The many mountains in this country make for incredible hiking opportunities!

The tweet that made me ekfamous…

In addition to all that, my actual internship – the reason I’m here – is completely bonkers. Everyday I am bombarded with challenging, interesting, and high-profile work! In my role in the Office of the Minister of Justice, I write case briefs, memos, and discussion papers, correspond with the Government Attorney and other Ministers, write speeches for the Minister, review legislation, attend public consultations, advise the Minister. Somehow, I have essentially stumbled my way into being a political staffer.

I still pinch myself sometimes, but it seems that this life full of joy, chaos, laughter, mental stimulation, and love is actually mine.

To quote another brilliant Talking Heads song, “I guess I must be having fun!”

Creating a System Navigator for People with Disabilities

by Laiba Asad 

This summer, I am interning with the Council of Canadians with Disabilities (CCD): a national human rights organization that advocates for people with disabilities through law reform, public education, litigation, and consultation. The majority of my time at CCD has been spent assisting the organization develop a system navigator to help people with disabilities better understand the federal and provincial/territorial disability benefits they are entitled to, as well as the application and appeal processes for each benefit. The system navigator aims to improve the chances of people with disabilities in securing benefits and services and, in doing so, lead to better outcomes for them and their families. 

According to a report entitled ‘Looking Into Poverty: Income Sources of Poor People with Disabilities in Canada,’ people with disabilities who are of working age are around twice as likely as other Canadians to live below the poverty line. The report also found that while the largest component of the income of poor people without disabilities is market income, generally from employment, the majority of the income of working-age poor people with disabilities comes from social assistance, along with federal and provincial child benefits and the Canada and Quebec Pension Plans. Therefore, it is imperative that people with disabilities be able to effectively access disability benefits. In the CCD’s System Navigation Pilot Project Feasibility Study, service providers and CCD representatives noted that people with disabilities may face challenges when trying to access different benefits and services and that for people with disabilities who face multiple marginalization — such as those with low income, Indigenous people, new immigrants, and women — it is disproportionately challenging Some of the main barriers that people with disabilities face when accessing government programs, benefits, and services include:

  • a general lack of awareness of the services, benefits, and programs offered by the different levels of government;
  • complex eligibility criteria and application procedures;
  • a lack of clarity on how all the services, benefits, and programs offered by the different levels of government interact with each other and affect the amount of support received;
  • hidden costs related to the applications such as costs of medical documentation; and
  • the absence of a common definition of disability and a national strategy.²

To address these barriers, the CCD’s system navigator aims to have three components: 

(1) provide navigation services including one-on-one individualized meetings in-person, via telephone, email or online live chat to help applicants identity their needs and eligibility, complete their application forms, refer them to other services providers, etc; 

(2) serve as an online Information Hub that will share information about the different programs, benefits, and services available to people with disabilities in a variety of formats; and 

(3) make training available online or in place for organizations for people with disabilities so that they can provide the CCD’s system navigation services.³

Part of my role entails helping develop the Information Hub notably by conducting research on the disability benefits provided by the federal and provincial/territorial governments, drafting information sheets for each of the benefits explaining their eligibility criteria, application process, and appeal process, and creating diagrams summarizing the procedures. 

Although it is sometimes challenging to ensure that the information sheets and diagrams are accessible and in plain language, I look forward to continuing to support the CCD with their system navigator project and collaborating with others in the organization to make the Information Hub more accessible during my internship. 

[1] See Susan L. Hardie et al, “Council of Canadians with Disabilities: System Navigation Pilot Project Feasibility Study” at 15 (2021) Canadian Centre on Disability Studies Incorporated operating as Eviance. 

[2] See Djenana Jalovcic, “System Navigator Service Consultancy Report” at 26 (2020) Council of Canadians with Disabilities. 

[3] See Ibid at 28-30.

A Balancing Act: freedom of expression and protection from harmful content

by Charlotte Ridsdale

I started my internship with the Centre for Law and Democracy remotely, living the work-from-home life in Montreal. This was harder than I initially anticipated – relying solely on self-motivation to complete my independent tasks alone in my apartment was challenging! I was grateful for friends to co-work with at Thomson house and café’s. I was also grateful to be able to drive up to Halifax to complete the second half of my internship at the end of June.

A change of scenery: lobster traps near Peggy’s Cove.

CLD is often commissioned by civil society groups to conduct legal research for various educational materials they produce. My first research tasks were for a project with Media Defence, an organization that provides legal help to journalists and independent media globally. CLD was adapting some training materials for digital rights through African national and regional human rights courts with examples from South and Southeast Asia. It was very interesting to examine the ways in which various Asian countries address digital rights, journalistic freedom and defamation on new media platforms. I enjoyed compiling quotes on the importance of freedom of expression and the media.

This one aptly describes some of CLD’s motivations behind their work on media freedom and right to information;

The media, be it electronic or print media, is  generally called the fourth pillar of democracy. The media, in all its forms, whether electronic or print, discharges a very onerous duty of keeping the people knowledgeable and informed. The impact of media is far-reaching as it reaches not only the people physically but also influences them mentally. It creates opinions, broadcasts different points of view, brings to the fore wrongs and lapses of the Government and all other governing bodies and is an important tool in restraining corruption and other ill-effects of society. The media ensures that the individual actively participates in the decision-making process. The right to information is fundamental in encouraging the individual to be a part of the governing process.”

From Sanjoy Narayan, Editor-in-Chief, Hindustan Times and Others v. High Court of Allahabad 2011 [para 5]

One of the best parts about interning with CLD is the variety of issues that I get to think about. Beyond media freedom, I’ve also been working away at a report on digital regulation around the world. I’m comparing the way democracies have chosen to regulate online platforms to mitigate the negative impacts of disinformation, hate speech and other harmful content. Different countries have decided to approach these issues from different angles. The USA’s s.230 provides “good Samaritan” protections from liability for online platforms (note the exceptions to these protections in the 2018 FOSTA-SESTA bills to curb online sex work) which contrasts the sweeping regulatory mechanisms imposed by the EU’s Digital Services Act.

Canada and Australia fall somewhere in between, with the proposed approach to address online harms in Canada and Australia’s Online Safety Act. Australia’s laws were quickly enacted in response to the Christchurch mass shooting of 2019, which was live-streamed on Facebook. Without getting too deep into the weeds, the law contains provisions requiring online platforms to remove violent and offensive content within 24 hours of being notified, and harsh financial penalties for failing to remove certain content.

Although I believe that online platforms have a responsibility to protect their users from hateful, violent and otherwise harmful content, state action like the Australian bill may create issues of over-censoring. It makes me question whether states and big tech companies should be in a position to decide what kinds of content individuals are able to access. For example, the Australian law’s classification scheme may require online platforms to remove sex workers’ profiles from their sites which blocks access to essential tools allowing them to work safely.

Shouldn’t adults be able to choose what kinds of online content they are exposed to? Why are states in a position to decide? Perhaps these are unintended consequences of well-meaning and even necessary government regulation to mitigate hate and violence. However, all of the laws that I’ve looked at are blurring the boundaries of free speech, resulting in various degrees of alarm from civil society. It is, indeed, a difficult balancing act.

Wanting Power, Getting Rights

The views expressed in this post are my own.

In an alpine meadow on top of a mountain with my coworker’s dogs

At the beginning of my internship with the Yukon Human Rights Commission, I shadowed several inquiries. One particularly memorable inquirer told us that they were being discriminated against on the basis of their physical disability while receiving a public service. Though I can’t be more specific without breaching confidentiality, my colleague and I agreed that it seemed possible that the treatment they were experiencing violated the territory’s Human Rights Act. Having taken a couple dozen more inquiries myself in the weeks since, this inquiry stands out to me as the most instructive of what it’s like to work within a complaints-based process and at an organization created, and circumscribed, by statute.

The Commission is limited in how it can react to even the most credible allegations. It cannot, for instance, spring into action with an injunction to stop discriminatory treatment or to provide legal representation or advice to someone experiencing discrimination. In response to an allegation of discrimination or harassment, the Commission’s role is to facilitate a formal human rights complaints process, in which it “promotes the objects of…[the Human Rights] Act[1] without technically picking a side between the parties. And unless the complainant and respondent quickly reach a settlement, a full human rights investigation and hearing before the Board of Adjudicators is likely to take several years due to the volume of complaints the Commission receives.

Not being familiar with the nuances of the Commission’s mandate and the complaints process, the inquirer in this case asked us if the Commission would be able to do something to put an end to the discrimination they were experiencing. Their situation was becoming increasingly desperate and they wanted a remedy now. My colleague explained what I’ve just explained to you, that they were welcome file a complaint but that it would not lead to immediate relief. We referred the inquirer to another organization more able to quickly take actions on their behalf and the inquirer hung up, clearly frustrated that we could not do more. At one point in the call, they suggested that what we were telling them was like saying they had no human rights at all.

The inquirer was particularly vulnerable and needed help more quickly than the Commission could provide it. This does not mean that they had no rights. The Human Rights Act establishes rights that apply all individuals in the Yukon and, like I’ve said, the treatment this person was experiencing may very well have violated the Act. If they were to file a complaint, they might eventually receive damages and other remedies as a result of the breach of their rights. Yet their situation reflected the difference between rights and power. I sensed that what they desperately wanted was more power to improve their circumstances, quickly. Without having the luxury to wait for a complaints process to produce justice, the Human Rights Commission may seem to offer abstract protections that can be pushed to the margins by the experience of powerlessness. The inquiry reminded me of an argument famously articulated by the philosopher Baruch Spinoza: that truly having a right depends on having the power to enforce it.

In everyday speech, “human rights” might mean a number of different things, from freedom of expression to privacy, or from reproductive rights to due process. However, the Commission engages with a narrow class of human rights issues. It is tasked with enforcing one piece of legislation that, in tandem with a body of jurisprudence, protects individuals against discrimination and harassment. Yukon’s Human Rights Act is a powerful, quasi-constitutional statute that contains a relatively expansive list of protected characteristics. Nevertheless, filing a complaint may not always be the most practical way to redress concrete impacts of discrimination, especially where the situation is ongoing and urgent. And the reality is that for someone like the inquirer in this case, the Commission’s process may be less tailored to their specific needs than, say, hiring a lawyer might be; the trade-off is that the Commission’s services are free.

Thankfully, while the complaints process may be the Commission’s most direct tool for fighting discrimination and harassment, it has others as well. During my time at the commission, I sat in on an anti-discrimination training session that the Commission provided to correctional officers at the territory’s largest prison and reviewed the hiring policies of a local business to ensure that they were complying with the Human Rights Act. These proactive strategies are a crucial part of how the Commission promotes human rights in the territory, as they address some of the root causes of human rights abuses.

Yet the systems of power that lead to discrimination and harassment are resilient. Yukon’s Human Rights Commission itself was created by a colonial government and does not fundamentally change that fact. After work, over lunch, and during our weekly “coffee time” discussions, my colleagues and I often discuss systemic obstacles to creating a more just society and world. We share resources and personal experiences, and these moments of thinking together have contributed a lot to my education here this summer. They also put the inquiries I’ve taken into a broader context, in which addressing systems such as patriarchy, racism, ableism, etc. goes beyond human rights complaints. A successful human rights complaint is no small accomplishment; it can compensate the person who experienced the discrimination or harassment while having a deterrent effect. But it is also symptomatic of a society in which these systems of power continue to circulate.

[1] Human Rights Act, RSY 2002, c 116 at s. 16(1)(e).

Whose Law Is It Anyway?

by Eric Epp

I was thrilled and grateful to get a spot in this program but still laughed when I read “Saskatchewan:” after months of idly imagining international human rights work (Visas! Different Cultures! Homesickness? Spicy Food!) I was coming back to Saskatoon, where my dad grew up, my grandma lives, and my uncle and aunt have a house a few blocks in from the river with a nice backyard and dinner ready for me when I showed up. I grew up in Edmonton and spent two years living in Winnipeg, so now I can finally say I’ve lived in all three prairie provinces. Saskatoon is a beautiful city, sometimes (according to my mom) called the Paris of the Prairies for its multiple bridges stretching back and forth across the South Saskatchewan River. I’ve been trying to run and bike as often as I can along the Meewasin Trail, which extends beyond city limits on both sides of the river. More specific to me, my grandma’s old Camry offers a trusty and chic mode of transportation around the city.

I’m part of a team tasked with setting up a tribunal, whose jurisdiction stems from a self-government agreement signed between the Métis Nation-Saskatchewan and Canada. This work has been a reset for me, because it recentres the core questions that get lost in first-year law school’s relentless hustle and bustle. Who is the law for? Who gets to make, interpret, and apply laws? What do you do with laws that are ineffective or harmful? All these questions have easy law school answers, but in the context of Canadian law’s interaction with Indigenous peoples, they are not very convincing answers. I think of “remote” communities where an entire arm of Canadian law—prosecution, defence, judge, and everyone else—arrives together on one plane like aliens, delivers legal decisions like newspapers, and flies out before dusk. Yes, law school confirms that this is law, but just maybe we should think about all this a bit. Of course, many, many, many people, especially but not just Indigenous people, have been incessantly talking, thinking, and organizing—and the biggest gift for me this summer has been being included in these conversations.

I worked as a tour guide for two years at the Canadian Museum for Human Rights, and nearly every conversation turned to Indigenous peoples, often in relation to Canadian laws. I knew how little I knew, but was constantly reminded that people on my tours almost always knew less, and I tried to lead them towards starting to understand more, as gently and imperceptibly as I could manage. Now the shoe is on the other foot, and my moments of comprehension are graciously heard and supported—but these breakthroughs are more from careful teaching than my own efforts. It is an honour to be in a room and know the least. Still, even if the problems are not secret, authentic paths forward are difficult to find and harder to navigate: Canadian law is the air we breathe, and Canadian law insists that we breathe Canadian law.

The South Saskatchewan, still winding along through Batoche

I drove up to Batoche about a month after getting into Saskatoon. My grandpa took us there once before, but I don’t remember it at all because I was quite young and for some reason engrossed in an abridged version of Ben-Hur. This time, it was a gorgeous Saturday in June, the parking lot was empty, and the interpretive centre was closed. There was a chain over the start of the trail, but feeling very politically radical (it’s a National Historic Site) I hopped over and wandered around for a bit. The sun beat down, the South Saskatchewan flowed along and the hills cheerfully rolled along as well, peaceful and green in every direction. I wish I had some beautiful and profound thoughts for Batoche, but the truth for me right now is that the events at Batoche in 1885 encapsulate a great dull sadness. In its expansion westward, Canada never paused to listen or hear or consider; and Batoche was a violent culmination of the path this sleepwalking state body stumbled along.

The Cemetery at Batoche

People are always talking about Indigenous resilience, which is fine and true but slots Indigenous people and peoples into a position of against rather than for. The old Métis laws existed to guarantee freedom, but freedom was a holistic concept that included a dynamic web of individual and group freedoms intertwined with individual and group responsibilities. Specific laws were expected to respond to specific situations and threats, to be discarded when no longer required. This project is a break, however small, from non-Indigenous laws regulating Indigenous lives. I’m grateful to be a part of this work during law school.

Unique, all-encompassing and holistic; that’s human rights work!

by Angela Nassar

It has been a few days since the end of my internship. I wanted to take this time to mark this important moment and reflect on the past twelve weeks.

As I was going into this internship, I thought that everything I would be asked to do would directly implicate contact with human rights work. Certainly, most of the tasks given to me were connected in some way to human rights—some more than others. Nevertheless, I discovered that at times, in this field especially, it was normal to do other type of work and to delve into other skills that I may have or that I needed to develop further.

Initially, a great desire to learn more about human rights and experience first-hand how the work was done in this domain pushed me to participate in the IHRIP. Now, after having completed my twelve weeks, I feel like I really have accomplished that purpose and more importantly, much more than that.

In fact, I was able to see that sometimes human rights work entails not so human rights related work but rather, really delves deep into each one’s personal skills to use them to the benefit of one end goal which is for the bettering of human rights. All skills and knowledge are welcome and much coveted. I always felt like all the aspects of my personality were in motion during my time as an intern—from my legal, to research, to social and creative skills. What was truly very fulfilling is that everything within me was being systematically activated. This enabled me to discover that human rights work is special because of these holistic and all-encompassing characteristics. I found this aspect unique to this type of work and very enriching, as it constantly entails interdisciplinary engagement and is not restricted to a set in stone list of skills.

In brief, as an intern with the IDEHPUCP, there were moments where I found myself going beyond my initial preconceptions and finding that there lies a limitless world behind human rights work. Now, I see this journey as a great learning experience. Indeed, it surpassed my expectations and enabled me to see once again that things are not always as you conceive them to be at the start. In this case, they were much more!

A Summer of Crossing Borders and Jurisdictions in Akwesasne

by Brandon Bonspiel

This summer, I am interning at the Akwesasne Justice Department. The Kanien’keha:ka (Mohawk) community is geographically divided by the colonizing borders of Canada and the United States. As a member of the Haudenosaunee Confederacy, Akwesasne has its own distinctive legal tradition. However, the rule of law imposed by Canada and the United States creates a complex layering of legal traditions within the nation.

Justice Department Building in Akwesasne.

Crossing the border is a daily, yet tiresome chore for the Akwesasro:non (people of Akwesasne). Multiple geographical territories signify, multiple legal jurisdictions. Akwesasne is comprised of; New York state Law in the southern district, Ontario provincial Laws on Kawehno:ke (Cornwall Island), and Quebec provincial Laws in Kana:takon (St-Regis) and in Tsi Snaihne (Snye). Although I have been explained numerous times the tricky dynamic of the community, I often get the jurisdictions wrong. Finally, the community respects its deep and traditional laws. If you were not counting, that is four distinct legal traditions, all in the same community. This conundrum is unique to both Akwesasro:non, and legal interns alike. Laws do not harmoniously flow together; different laws apply to different individuals based on their residency within the community. During my internship, I will be working out of Kana:takon.

Thompson Island, Akwesasne.

Six weeks have come and gone since arriving in Akwesasne. During my first few days, I drafted a legal memorandum informing the Mohawk Council of Akwesasne of the newly enacted Bill C-96 (Quebec French Language Law). During my second week, I began researching the implications of C-92, a bill enabling First Nations, Inuit, and Metis peoples to create their own child welfare laws. As a member of the Justice Department this summer, we will work towards drafting the child welfare legislation for Akwesasne. This is no small task, considering the department constitutes only a handful of employees. Fewer staff allows for a greater exposure to a diversity of projects, which makes the internship truly valuable and unique

St-Lawrence River, West of Thompson Island.

I consider myself lucky to be working on legal memos and drafting legislation during my very first summer in Law School. Although my internship has just started, I have already learned so much and look forward to the next 6 weeks.

Centering love in HIV decriminalization advocacy

By Catherine Dunne

I can distinctly remember learning about HIV criminalization in my first-year criminal law class. In Canada, it is criminalized to not disclose one’s HIV status prior to sexual activity unless a person has a suppressed viral load and used a condom, despite the fact that broad scientific consensus exists that one of these on their own is sufficient to prevent HIV transmission.[i] This is true even where the person had no intention to transmit HIV, posed little scientific risk of transmission, and did not actually transmit HIV. This offence was created in R v Cuerrier when the Supreme Court of Canada stated that HIV non-disclosure, where a realistic possibility of HIV transmission existed, “vitiates” consent to sexual activity, and constitutes aggravated sexual assault.[ii]

As a first-year student with a passion for gender-based violence prevention and response and sexual and reproductive rights, I recall struggling with these cases. On the one hand, informed consent is broadly accepted as critical for sexual activity and is important to protect bodily autonomy and liberty. But, what constitutes informed consent? Typically, we do not ask for our partner’s entire medical history before engaging in sexual activity –– rather we discuss what sexual acts we want to engage in, whether sexual acts will involve a condom or other protection, and with whom. Would society criminalize a sexual partner if they failed to disclose chlamydia? Or COVID-19? While undoubtedly feelings of betrayal and hurt might exist in failing to disclose a communicable infection, like HIV or COVID-19, criminalization is uniquely imposed against people living with HIV, exacerbating the intense stigma they already face.

The HIV Legal Network has been advocating for years for the federal government to decriminalize HIV non-disclosure, recognizing that the law is unscientific, is overly broad and punitive, does not prevent HIV transmission and contributes to human rights abuses. Over the course of my internship, I have deepened my understanding of the human rights abuses that surround the criminalization of HIV non-disclosure. Working at the HIV Legal Network has illuminated the tensions I struggled with in first year, in particular, the tension between wanting better outcomes for survivors of gender-based violence (notwithstanding the inherent problems within the criminal legal system) and the injustices and discrimination inherent within the criminalization of HIV non-disclosure. HIV non-disclosure and gender-based violence sometimes correlate, but this does not mean that non-disclosure is a form of gender-based violence. To the contrary of myths and stereotypes, those living with HIV are often the victims of such violence preceding, during and after instances of non-disclosure.

HIV criminalization fails to account for the nuanced reasons why someone might not disclose their HIV status to a sexual partner, such as fear of intimate partner violence, abandonment, or coercion by intimate partners. Most women living with HIV have experienced violence in adulthood (80%), and experience very high rates of physical (62%), sexual (45%), and verbal (74%) forms of violence.[iii] When women experience intimate partner violence, particularly Black and Indigenous women, they often have little, if any, control over how and when sex happens, including whether a condom is used.[iv] Consequently, many women living with HIV do not feel they can safely disclose their HIV status for fear of (increased) intimate partner violence.

Women who experience sexual assault may also decide not to report to police for fear of non-disclosure charges or face the risk that vindictive partners will use the non-disclosure law against them after leaving intimate partner violence.[v] Many Indigenous women describe their fears about how they could prove to a court they disclosed if charged following the end of an intimate relationship.[vi] These fears make sense –– a large proportion of the cases where a woman was charged involved Indigenous women and women who had long histories of sexual abuse by men.[vii] For migrant women, criminalization poses additional complications: these women may stay in abusive relationships because of fear that their partners will make false claims that they have not disclosed their HIV positive status, especially if they depend on their partner for sponsorship or economic support.[viii] As a result, HIV criminalization can exacerbate gendered and sexualized violence, rather than adequately respond to it.

Many groups disproportionately experiencing HIV infection are also those that experience the most difficulties accessing treatment, notably due to systemic racism in healthcare, including language barriers, a lack of healthcare services in communities, a lack of culturally relevant services, and racism perpetrated by healthcare professionals.[ix] Often, this means that those most likely to be infected with HIV are also those that will face the most barriers to treatment. Given the law criminalizes non-disclosure unless a person used a condom and have a suppressed viral load, this makes the standard very difficult to attain for the most vulnerable populations. Overwhelmingly, the criminal law is a blunt instrument that fails to account for the nuanced realities facing people living with HIV. Rather than contribute to any public health efforts, HIV criminalization operates as another form of surveillance over bodies that operates based on problematic and racist ideas about “sexual deviants” and which places the entire risk of a global public health problem onto individuals.

On June 20th, these learnings came together at a roundtable hosted by the HIV Legal Network in Toronto to explore alternative responses to the criminal law to HIV non-disclosure. The roundtable emerged from recognition that during non-disclosure, sometimes harm is experienced and alternative responses are needed to support people living with HIV and those that experience gender-based violence, recognizing that these categories often overlap. Participants came from diverse sectors, and included abolitionist activists, Indigenous elders, people living with HIV, including those that have been criminalized for HIV non-disclosure, counsellors from the gender-based violence sector, and lawyers advocating for the rights of people living with HIV. Despite their diverse backgrounds, participants shared many of the concerns I have highlighted regarding the harms that HIV criminalization causes. They also shared the core beliefs that alternatives are required to respond to HIV criminalization, which centre human rights, public health, and transformative justice approaches.

I have spent some time working remotely in Montreal. This mural captures the values of love discussed at the roundtable.

The roundtable was an impactful day because it added a human element to the legal research I have conducted throughout the summer. Several participants shared their lived experience with human rights violations, ranging from racial profiling to incarceration to violence. It was inspiring to witness their strength and motivating to affirm the importance of the work we do.

In wrapping up the roundtable, participants shared the values that they hoped to carry forward as alternative responses to HIV non-disclosure were developed. Participants shared the values of reciprocity, humility, and community, among others. One of the responses that have stuck with me the most is the value of love. Human rights work is fundamentally about love for self, others, and community. Love is an important guiding principle that encourages openness, empathy, dialogue, commitment, and connection. When we centre people at the heart of laws and policies, it requires us to reflect on the concrete impact of such laws and policies. In the context of HIV advocacy, the value of love is relevant across multiple dimensions. First and foremost, as one participant highlighted, sex and pleasure are important aspects of decriminalizing HIV non-disclosure. People living with HIV are entitled to sexual rights and freedom, and sex is one way that love is expressed. Love is also relevant because many groups that have been disproportionately criminalized for HIV also are those that law has historically penalized for expressing their love, including members of the 2SLGBTQ+ community, and Indigenous women, many of whom lost their Indian status by “marrying out” under older versions of the Indian Act.

Love is a principle that is embodied by my co-workers who so clearly respect and value each other and those other activists and advocates that they work with on a routine basis, and is certainly something I will take with me for long after my internship comes to a close.

[i] R v Mabior, 2012 SCC 47.

[ii] R v Cuerrier, [1998] 2 SCR 371.

[iii] S. Patterson, et al., “Impact of Canadian human immunodeficiency virus non-disclosure case law on experiences of violence from sexual partners among women living with human immunodeficiency virus in Canada: Implications for sexual rights,” HIV and Women’s Health 18 (2022): pp. 1–14

[iv] House of Commons Standing Committee on Justice and Human Rights, Criminalization of Non-Disclosure of HIV Status, June 2019. Available at www.ourcommons.ca/DocumentViewer/en/42-1/JUST/report-28/.

[v] HIV Legal Network, HIV Criminalization, Women and Gender-Diverse People: At the Margins, May 4, 2021.

[vi] Ibid.

[vii] Ibid.

[viii] E. Mykhalovskiy, “The problem of “significant risk”: exploring the public health impact of criminalizing HIV non-disclosure” Soc Sci Med (2011) 73(5), pp. 668-75, doi: 10.1016/j.socscimed.2011.06.051.

[ix] C. Bellrichard, “Investigation finds widespread racism and discrimination against Indigenous peoples in B.C. health-care system” CBC News, November 30, 2020.

« 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.