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Treaty Paradigms

Bryce LansdellBy Bryce Lansdell

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

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

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

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

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

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

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

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

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

[3] Ibid at 13.

[4] Ibid at 39.

The Shortcomings of Bulgaria’s Criminal Justice System for Children

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

Written by: Kendra Landry

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

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

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

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

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

The Child Justice System in Bulgaria: Present-Day Realities

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

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

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

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

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

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

Conclusion:

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

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

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

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

[4] See ibid at para 8.

[5] See ibid at para 9.

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

[7] See ibid at para 29.

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

[9] See ibid, art 4.

[10] See ibid at para 63.

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

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

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

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

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

[16] See ibid at para 41.

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

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] See ibid at 289.

[22] BCNL, supra note 2 at 6.

[23] See ibid at 25.

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

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

[26] See ibid at 26.

[27] See ibid at 11.

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

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

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

[31] See ibid at 6.

[32] Ibid at 19.

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

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

[35] Ibid.

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

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

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

[39] See ibid at 33.

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

[41] Todorova, supra note 1 at 283.

A Case for Decriminalization of Homosexuality in Jamaica

Mehri GhazanjaniBy Mehri Ghazanjani

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Camila FrancoBy Camila Franco

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

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

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

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

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

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

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

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

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

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

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

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

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

Christoph IvancicBy Christoph Ivancic

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

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

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

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

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

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

Circuit Court in Kinngait, Nunavut

Sarah NixonBy Sarah Nixon

The views expressed in this blog are my own.

Kinngait is a community of about 1400 people just off the coast of Baffin Island in Nunavut, Canada. The region has been inhabited by Inuit for thousands of years. Its Inuktitut name means “where the mountains are” (or the hills, depending who you ask). Today, it’s known by many for the beautiful serpentine and soapstone carvings that artists have been making there for many generations.

A souvenir – Dancing Bear carving by Davidee Shaa

During my internship with Nunavut Legal Aid, I was lucky to be given the opportunity to travel on circuit court to Kinngait. Circuit court is a process used to administer law in Nunavut to communities that do not have their own courthouses, resident lawyers, judges, and other courtworkers. To facilitate the application of Canadian law, then, a ‘court party’ comprised of defence lawyers, Crown prosecutors, courtworkers, a judge, a translator, a transcriptionist and a sheriff travel together to these communities periodically throughout the year to hold court. The frequency of ‘circuits’ depends on the particular community’s size and rate of criminalization. In the case of Kinngait, court is held for one week about five times per year.

However, due to COVID-19 pandemic restrictions, the circuit I attended in August 2021 was the first in-person circuit held in Kinngait in nearly five months. This is the first reason why this particular circuit was one of the busiest that had ever been held. The second reason is that Kinngait has been, for some time now, the most heavily criminalized community in Nunavut based on the proportion of its residents subject to criminal charges. The underlying causes for this reality are not clear to anyone, so far as I could tell during my time there. However, longstanding animosity between many of the local people and the Royal Canadian Mounted Police members stationed in the community may play a role in the rate of criminal charges being laid.

During circuit, the court party uses local buildings built for other purposes for client meetings and the court process itself. In Kinngait, we used the local Sewing Centre – a space for primarily women to gather and sew together – for client meetings on the weekend prior to the upcoming week of court. Using this space for our purposes meant that many client meetings were conducted in the furnace room to gain the necessary privacy required to discuss clients’ legal matters. Needless to say, sitting in on these meetings was somewhat of a surreal experience, with a noisy, hot furnace churning away between my supervising lawyer and her clients as they discussed their matters.

From Monday to Friday, we set up in the local community centre to hold court. The centre had recently been painted by a group of young people from the community with the help of an artist from the south. The setting was inherently less formal than courthouses I had visited in Montreal, Ottawa and Iqaluit. At the same time, the consequences of the court process were just as severe, with many witnesses, accused, and community members being retraumatized by the criminal process, and many individuals being sent into custody or receiving conditional sentence orders (the rough equivalent of house arrest).

Exterior of the Community Centre

 

The ceiling of the ‘courtroom’

Another notable difference about court in Kinngait was that two Elders from the community sat to the right of the judge throughout the week. The Elders, both women, were asked to speak to individuals at the sentencing stage of proceedings, after there had been a finding of guilt and before the judge decided on the appropriate sentence. Publicly before whomever was in the ‘courtroom’, the Elders took turns standing to speak in Inuktitut to the person who was about to be sentenced.

Both women spoke with a great deal of emotion and force, and their words often brought the person they were addressing to tears. With live translation, I was able to understand that the messages they conveyed were distinctly different from the sentencing regime the judge was bound to follow. In particular, I noticed that the Elders focused on the root causes of the wrongdoing the person had committed, often connecting the incident before the court to some sort of pain that person had experienced in the past that was causing them to behave wrongly.

The Elders repeatedly referred to the risks and drawbacks of drinking alcohol as well, and counselled the listener to try to replace this coping mechanism with time spent on the land. They repeatedly emphasized the calming and uplifting effects this could have on one’s mind and spirit. The Elders also, generally, stressed a forward-looking perspective on the listener’s life, counselling them to obey any conditions the court ordered, to focus on being a good example for their children or other family and community members, and to pursue their own self-betterment and healing.

In contrast, the judge sought to design proportionate punishments for the crime committed and the circumstances of the person before the court. The contrast and integration of these two methods of responding to wrongdoing was fascinating to say the least, and seemed to expand the boundaries of the malleable criminal process. It certainly left me wondering which method was more impactful upon those before the court, and about what further integration might look like – for instance, if Elders were consulted at the stage of findings of guilt or innocence, or if they were given full ownership over the crafting of sentences. This is one of many things that my week on circuit in Kinngait will have me wondering about for a long time to come.

International Law and Civil Liberties: Emerging Synergies

Kassandra NeranjanBy Kassandra Neranjan

While the International Human Rights Internship with the CCLA allowed me to conduct research into the areas explored below, the views expressed in this blog are my own.

Working at the Canadian Civil Liberties Association (CCLA), I found myself immersed in constitutional conundrums regarding criminal justice and equality rights. Although assessing these queries required frequent consultations with my constitutional law textbooks, my work was not limited to evaluating solely Canadian law.

Critical to equality rights litigation are the acts of demystifying and unearthing all relevant state obligations that support those rights, be it domestic or international. Fundamentally, international obligations are those commitments states make abroad in international fora, but are to be upheld domestically for the benefit of their peoples. Supreme Court judgments have exemplified this phenomenon by increasingly assessing Canada’s international legal obligations as intrinsic to interpreting its domestic legislation (with some caveats and limitations, nonetheless). In this vein, the nexus of constitutional law and international law is incredibly meaningful for furthering the rights and freedoms of those in Canada by developing a more rigid legal basis to draw from.

Socioeconomic rights are some of the most contentious in international law. Borne from an eastern bloc during the Cold War, its substance is often misconstrued with the inaccurate pretense of being diametrically opposed to civil and political negative rights. But the positive rights associated with socioeconomic rights, such as those to housing, sustenance, clean water, living wages etc. have been argued to allow for the flourishing of civil and political rights providing a more complementary relationship between the two. Canada is a signatory to the chief international text enshrining socioeconomic rights: The International Covenant of Economic Social and Cultural Rights. However, as a monist state, Canada’s international obligations do not become immediately embedded in its domestic law. It must separately enact such legislation in Parliament. Boldly, constitutional scholars have argued that the Canadian Charter of Rights and Freedoms, which possesses a preponderance of negative civil and political rights, was enacted as a red herring to prevent Canadians from demanding positive obligations from the federal government under the guise of a ‘comprehensive’ text of endowed liberties. How socioeconomic rights obligations internationally can domestically manifest becomes a critical question for civil liberties and constitutional law to find synergies for protecting Canadians’ freedoms.

Imaged above is the South African Constitutional Court which has interpreted socioeconomic rights and core obligations of the state in numerous cases

As a student with an interest in international law, I jumped at the opportunity provided by the CCLA to research the application of international socioeconomic rights domestically in other jurisdictions.

In litigating for civil liberties, legislation and policies are often found that may appear legally sound but their effects have the dire consequences of depriving individuals of access to essential resources, that could otherwise be protected under socioeconomic rights. Consequently, socioeconomic rights provide a novel avenue for civil liberties protection. How these socioeconomic rights can be ascertained and protected domestically when they exist as international obligations however, continues to be the topic of much debate in international and constitutional law dialogues. Indeed, South Africa and India lead these conversations with the creative endeavours their courts have taken to protect social and economic rights – but this has not been met without adversity. Moreover, often the most marginalized in a society are left to bear the brunt of whatever inaction may thereafter proceed.

The intersection of international law bolstering civil liberties is one that is growing in reputation, prominence, and need. Finding opportunities to hold states accountable that have not been exhausted in court, but are feasible in application requires a delicate balance and abundance of ingenuity. It was incredibly fulfilling to research and prepare recommendations and assessments to advance such conversations and hopefully support the protection of Canadians’ rights in the near future.

The little things are the big things

Camila FrancoBy Camila Franco

I spent my summer working for the Instituto de Democracia y Derechos Humanos de la Pontificia Universidad del Perú (IDEHPUCP), an academic institute created in 2004 in response to Peru’s Truth and Reconciliation Commission (Comisión de la verdad y Reconciliación, “CVR”) which sought to provide an official record of the human rights violations that occurred in Peru during the internal armed conflict between 1980 and 2000. IDEHPUCP seeks to strengthen democracy and the enforcement of Human Rights by conducting interdisciplinary trainings, engaging in applied research, public advocacy, and the promotion of public policies with civil society and the state. Over the last 17 years, the institute has developed seven fascinating lines of work: Memory, democracy, and post conflict; Business and human rights; Human mobility; Indigenous villages; the Inter-American Human Rights System; Fight against corruption; and Rights of persons with disabilities. I was fortunate enough to contribute to diverse projects in various lines of work. I primarily conducted comparative research on issues of business standards, technology implications on migrant populations, Indigenous resilience to climate change, and I wrote summary reports of discrimination cases heard at the Inter-American Court of Human Rights.

 

This virtual internship has come with the many familiar challenges and advantages of online work: periodic feelings of isolation and disconnectedness, time zone confusion, blurred work-life routine but likewise tremendous flexibility. I accepted this internship knowing that it would likely be remote, but I admittedly held on to the unrealistic hope that our global health crisis might be under control by the time May arrived. Once the placement was officially confirmed as remote, I grieved the idea of a summer in Lima.  I craved experiencing a new culture, being immersed in my native language, and physically connected to the Andes Mountain range, my native land. At the same time, I remained grateful to have the chance to ameliorate my professional Spanish skills, while contributing to the important mandate of a leading human rights institute in Latin America. There was also the added benefit of being able to work remotely from different locations here in Canada to accommodate for personal circumstances. I also understood that with all the hardships that this pandemic has brought, having to complete my summer internship remotely from the safety of my home was a privilege above all else. Yet as soon as I met the incredible people that breathe life into the IDEHPUCP, my longing for South America swung right back.

Virtual Birthday Celebration in June for all missed ‘Covid Birthdays’ at IDEHPUCP

My supervisor and colleagues constantly did many things to make me feel a part of their academic family. Every single morning at 9 am on the dot, our coordinator would send a “Buenos días” text on our WhatsApp Academia chat, to which we would all reply with greetings and exchange funny memes at the start of our day. On Friday afternoons we could always expect our coordinator to ask us about our coming weekend and wish us all well. In June, the institute held a big team “birthday party” to celebrate all our covid birthdays and exchange stories about our worst and best birthday memories. Although, in my opinion, this year has provided more than enough zoom birthdays with the audio disaster that is getting multiple people to attempt singing the birthday song at once (always inevitably unsynchronized despite the sincerest efforts) this night was one of my favourites. These gestures might seem trivial, but they all made a significant difference in how supported I felt by the team I worked alongside with for three months, and it allowed us to build more personal connections, despite the 6,400 km distance.

Of course, most of our conversations regarded the projects we were working on at any given time. We had bi-weekly meetings that provided the opportunity for every line of work to update the rest of the group on ongoing tasks, deadlines and make calls for feedback and assistance. These meetings, as well as the lively WhatsApp group chat, served as essential debrief spaces for the team this summer. Particularly as Peru went through a tumultuous presidential election that erupted civil unrest, and as the country tragically ascended to the highest per capita covid-fatality rate in the world. I felt an immense sense of sadness knowing that my own colleagues could not enjoy the access to vaccination and health care that I could by staying here in Canada. It also forced me to reflect on this desire to “experience” Peru, as a foreign Colombian-Canadian, and to what extent this wish is insensitive to the reality of what it means to live in a country under a fragile democracy, and a health care system overwhelmed by the pandemic. I knew that supporting the institute from Canada was the best thing I could do in this context, and I was grateful to learn about the various areas of work that my supervisors are experts in. The memes and zoom celebrations were just a bonus which reflected the warmth of those working tirelessly at IDEHPUCP.

 

Digital Transnational Repression: When states use the Internet to stifle dissent across borders

Niamh LeonardBy Niamh Leonard

Beyond studying surveillance technology exports, which I spoke about in my last blog post, the second area of focus for my summer internship has been contributing to the data collection process for an ongoing research project on digital transnational repression.

Digital transnational repression refers to when states seek to exert pressure – using digital tools – on citizens living abroad in order to constrain, limit, or eliminate political or social action that threatens regime stability or social and cultural norms within a country. While transnational repression itself is not a new phenomenon, the development of spyware has made repression much easier than it once was. Instead of having to send agents into foreign countries, governments can now threaten political dissidents across borders using cyberspace.

The Lab’s team has identified that one of the most pressing questions to tackle is how digital transnational repression can be addressed. Targets of digital transnational repression often turn to law enforcement for protection, attempt to use the legal system to seek justice and relief, or ask technology companies for support. However, a lack of coordinated response often makes it difficult for targets to get the support they need. The Lab has been studying possible legal and policy responses to this issue.

As a first step, in November 2020, the team published an annotated bibliography that includes media reports and analysis, technical reports, and academic literature about this emerging phenomenon. The annotated bibliography demonstrates that digital transnational repression is a pervasive problem, affecting individuals from many countries including Bahrain, China, Ethiopia and Iran.

The Guardian’s recent investigation into a leaked list of 50,000 phone numbers believed to be targets of interest of clients of the Israeli spyware company NSO Group only confirms the scale of the problem. The investigation confirms what has been known for years: human rights activists, journalists and lawyers across the world have been targeted by authoritarian governments using NSO Group’s Pegasus hacking software. NSO Group is but one example of the many companies profiting from the sale of spyware to questionable actors.

To further study the impacts of digital transnational repression, the Lab has been conducting interviews with targets and other actors (e.g., journalists, policymakers and technologists) who have knowledge of instances of this phenomenon in Canada.

Throughout the summer, I participated in conducting and transcribing interviews with targets and other actors. I very much enjoyed this part of my work, as each interview was a deep dive into the political situation of various countries around the world. I learned a lot about how governments use digital tools to stifle political dissent and about the reality of many human rights defenders, journalists and refugees who live here in Canada.

Human rights defenders are often faced with impossible choices: in many cases having to choose between their own safety and that of their family on the one hand, and their ability to speak out about injustice on the other.

Hearing from individuals who have such moral courage only strengthened my own resolve to use the law as a tool to address injustice, promote human rights, and strengthen democracy. In the short-term, I will continue doing so at the Citizen Lab, where I will be staying on as a Legal Extern throughout the fall. I am grateful for this opportunity to continue learning from my amazing colleagues while contributing to the impactful research underway.

Gabriela De MedeirosBy Gabriela De Medeiros

UNDRIP

Article 3: Indigenous Peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4: Indigenous Peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

 

As an immigrant, I have spent a lot of time thinking about borders and the impact of crossing them. These lines we draw on the soil are the stitched seams that hold together a world of nations that had to first be torn apart. These seams run through the lands in ways that don’t always reflect the network of relationships that the people living there have built over generations. The repercussions of these geopolitical fissures are a near-constant concern for those living in Akwesasne.

map

Jurisdictional barriers have been at the forefront of my experience working for the Justice Department of Akwesasne from the start. The circumstance of the global pandemic made it so that I was stuck two borders away from the offices where I needed to be, and the sensitive nature of the work I was tasked with meant that I could not access most of the information outside of the closed network of the Justice Department. For the first two months, I was limited in what work I could complete, and I felt quite useless. I was entrusted with researching and drafting a boat registration policy, and I have to admit that it didn’t seem like very important work; as children’s bodies have been gradually exhumed over the course of the summer, and Canada and the United-States are increasingly forced to confront the violent legacy of residential schools, I hoped that as a law intern I could contribute meaningfully in some way. Boat registrations seemed mundane and unrelated to human rights work.

But as I delved deeper into my research, I began to understand the true scope of my task. Boat registrations for a river-based people are a significant jurisdictional battleground. The First Nation of Akwesasne is split between Ontario, Quebec and New York, and the Saint-Lawrence river that flows through the community is designated as international waters. The people of Akwesasne have always used the water in myriad ways, for transportation, sustenance and pleasure, a tradition that continues today as a large portion of the residents of the reserve own a water craft. But the same imposition of authority by the governments of nation-states over the affairs of Indigenous peoples that created the residential schools has transformed the way that the citizens of Akwesasne must manage their way of life. According to settler law, all boats must be registered in a federal database, and all vessels on the waters must produce their registration if ordered by an authority (usually the Coast Guard of either country).

I was tasked by the Justice Department to draft a boat registration policy and update the registration database to help the local tribal police force monitor their own community. This is a move toward establishing their own legal jurisdiction over the waters that surround their home. Apparently this has been a contentious resistance for generations, and Akwesasne has all but established its own jurisdictional authority through customary relationships with the states’ bodies. Denying the authority of a federal police over their affairs on the waters surrounding Akwesasne is nothing short of a stance in self-determination, an exercise of their right to autonomy and self-government.

water

At the end of my second month, the travel restrictions across provincial borders within Canada loosened up and I was called to go into the portion of Akwesasne on so-called Cornwall Island, known to the locals as Kawehno:ke. It’s an hour drive each way and there are no tolls anywhere on my path, until I get to the bridge connecting the Ontarian city of Cornwall to Kawehno:ke. Here my path is blocked by a toll booth and I must pay $3.75 to pass through the only entrance to Akwesasne from the Canadian side. This seemed immediately problematic to me, despite the assurance by my supervisor that my fees would be reimbursed. I inquired as to whether the residents of Akwesasne are permitted to cross for free, and was told that they are indeed granted passage if they show their Indian status card to the toll operator. However, this was a “privilege” that had to be fought for, as initially they had been expected to pay.

I can’t imagine that the decision to construct a toll bridge on that specific crossing was done with a benevolent or even neutral intention. In fact, I was informed that the legal justification for the toll bridge was a strip of land across the length of Kawehno:ke which had somehow been expropriated by the Canadian government — the bridge technically connects Cornwall to Crown-owned land, and not to an Indigenous reserve, and as such it does not infringe on Akwesasne’s right to control the lands within the reserve.

photo

In these few weeks that I have been involved with the Justice Department, I have learned that self-determination plays out not only on the scope of international law, but most importantly in the day-to-day interactions people have with their environment. The jurisdictional battles within the community of Akwesasne have created a patchwork of legal negotiations that the residents must navigate on a quotidian basis, because over the last century and a half they have been denied their own agency by the governments of Canada and the United-States.

I am certain that those who are uninformed see the victories that Indigenous peoples win over time, such as the right to cross the toll bridge without paying, without considering the significant costs which were imposed first. For instance, while Akwesasronen may cross freely onto Kawehno:ke, to cross back into Cornwall and the rest of Canada they must be interrogated by a customs officer at the line we call a national border. Because their community, which predates our settler geo-political borders, have been split up between three different jurisdictions, they are forced to adapt their daily lives to the demands of a government that was imposed on them. The burden of crossing the border has on many occasions impacted the decisions my coworkers have made about when they make the effort to go see family members or run errands within their very community.

As I continue my work with the Justice Department of Akwesasne, I can only imagine what a world without State borders would look like.

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