Access to Justice in Action at the Yukon Human Rights Commission

By Garima Karia

This summer, I have had the immense fortune of moving to Whitehorse, Yukon to work alongside the fantastic humans at the Yukon Human Rights Commission (“the Commission”). As I read my peers’ reflections on their own human rights internship experiences, many of which include musings and lessons surrounding remote work, I feel both incredibly lucky and guilty – lucky that I was able to spend nine out of twelve weeks in the Yukon, and guilty that I happened upon this rare privilege in the midst of a pandemic. All that I can say is that I’m deeply grateful, and that I hope to do right by the opportunity.

At the Commission, my main duties are three-fold: I take “duty” shifts, during which I am the point-person in the office for inquiries from members of the public; I draft legal memos on questions of law and procedure that come up in human rights complaint investigations; and I support the human rights investigators by transcribing interviews, editing investigation reports, and talking through various aspects of human rights and administrative law as they apply to investigations. I have also been lucky enough to witness our Director facilitate settlement discussions and shadow him in his role as the “gatekeeper” at the threshold stage of the human rights complaint process.

Thus far, my favourite part of the job has been taking human rights inquiries from the public. This arm of the Commission operates similarly to a legal clinic (like the Legal Information Clinic at McGill, where I have been a caseworker in the past). We listen to an inquirer’s story or question (sometimes multiple questions!), and then provide relevant information about the Yukon Human Rights Act and the Commission’s human rights complaint process. Two key elements of an inquiry are explaining, in simple terms, the prima facie test for discrimination and the duty to accommodate. Both are core elements of the Act that work to guard against human rights violations and discrimination. The “ground-harm-nexus” model underlying the prima facie test can sometimes be justifiably difficult for inquirers to grasp. Many will state that they are a member of a vulnerable group that is protected under the Act, and that they experienced a harm in one of the protected areas (e.g. employment or accessing goods and services), but the nexus – the idea that the harm was driven by and sufficiently connected to discrimination based on a protected characteristic (such as gender expression, race, religion, or family status) – is the hardest to grasp.

Inquiries are challenging because they can often be very personal and emotional for the individual seeking assistance from the Commission. During my time here, I have dealt with inquiries pertaining to wrongful dismissal for disability or family status reasons to visitation rights of inmates and discrimination perpetuated by medical professionals. I have also encountered numerous COVID-related inquiries about vaccine status “discrimination” and mask mandates. Even though I am unable to provide legal advice as a Commission employee, I can comfort those who sought assistance from the Commission and assure them that I would do my best to guide them through the process. Engaging with Yukoners in this way – hearing and responding to their inquiries – feels like the most “human” part of my job. Although I love legal research and diving deeply into a niche question of law, I sometimes find that theoretical exercises leave me feeling distant from the actual practice of law and access to justice. Inquiries, on the other hand, illustrate how legal information can empower people to autonomously make informed decisions and choices that are attuned to their particular situation(s) or lived experience(s), which is what I think access to justice is all about. It’s rewarding to equip someone who felt powerless in their situation with resources and information that empower them to seek recourse and feel supported in doing so.

I am also learning a lot from the exercise of explaining human rights law without legal jargon. I am able to see, first-hand, how easily digestible the law can be without the opacity I often come across in law school settings. Many inquirers who come to the Commission cannot afford direct legal action and have exhausted many other avenues for resolution. They are often frustrated and losing hope – many have told me that they aren’t ready to give up on their cases but are tired of losing time and facing dead ends. Something as simple as understanding a legal test and filling out a complaint form, thereby commencing a dispute resolution process, gives some degree of reprieve to many people.

Human rights commissions and tribunals across the country provide free access to discrimination-related dispute resolution. In doing so, individuals who have experienced discrimination can seek justice in a very tangible and inexpensive way, unlike through the courts. However, like other useful bodies in the legal sphere, many human rights commissions are understaffed and underfunded, which can lead to significant delays. I plan to learn more about access to justice efforts in the administrative legal space in order to (hopefully) raise more awareness about and increase support for this avenue for dispute resolution in Canada.

Working Remotely for the Yukon Human Rights Commission: the Saga Continues

Mathew YaworskiBy Mathew Yaworski

Unfortunately, my time with the Yukon Human Rights Commission (YHRC) is coming to an end.  My placement ends after July 29, 2021, leaving me just enough time to take care of my strategic appointments (doctor, dentist, banker, replacement OHIP card) and relocating to Montreal before classes start.  All of this notwithstanding my second blog post.

I need to thank the staff at the YHRC. My immediate supervisor and Acting Counsel was generous with his time, and patience, and always willing to engage with me about my problems or concerns.  Everyone was friendly and engaging. I appreciated the invitation to the team’s weekly Coffee Time get together, a time to chat, relax, and recharge. Even when one of the coffee towers tipped over spilling much of that black gold on the floor, people in the room (or at least through Zoom) had good spirits.

Coffee Time was insightful.  I spent some time in the Northwest Territories and knew a few things about bears, but it was nice to renew my understanding and appreciation of the different types of bear sprays.  I was envious to learn about all the opportunities for outdoor activities in the territory.  I was envious to learn of how my colleagues used all of their free time, especially when I had to rationalize how “free time” was a luxury that I really could not afford as a full time student.

My research continued and I wrote legal opinions relating to my findings.  Things were going well until I researched the issue of vicarious liability.  Some statutes contain provision(s) that allow a respondent, usually an employer in the employment context, to “escape” liability if they can demonstrate that they did not condone the inappropriate behaviour or reasonable steps to address it.  Why is that? If the purpose of human rights legislation is remedial, should it not be that the employer and the perpetrator be subject to remedial (not punitive) action?

Between flash backs to my first year Torts and second year Employment Law classes, I tried to find the answer, especially why this type of language was limited to a few statutes across jurisdictions and not universal?

I don’t want to sound cocky, but I think I’m pretty good at legal research.  I did a lot of legal research working in labour relations, with Quicklaw, Westlaw, or CanLii.  I’ve had more practice and refined my skills since coming to McGill.  I’m competitive and don’t like to lose or admit defeat.  But this was a tricky topic. Eventually, I abandoned looking at case law and tried to access the Hansard.  Unlike Westlaw or Quicklaw which provides a universal interface, each Hansard interface is different (ie, the Government of Canada Hansard is different from the Province of Manitoba’s Hansard).

Unfortunately, I could not find what I was looking for (some of my research was very historical) but happened to come across my former high school classmate, now counsel for a trade union in Vaughan. Congratulations Steve. He appeared before a Province of Ontario Legislative Committee and made a presentation on behalf of his employer. Ultimately, I wrote my opinion based on what I was able to find, in the time that I had to do it.  If anyone from Quicklaw or Westlaw is reading this, you should look at downloading Hansard and making it more user friendly to search.  Expand your business and take pity on me.

My last two assignments concern the scope of individual and organizational liability, and the enforcement of settlements.  One takeaway from all the research I’ve done during this placement is to be wary of going down the rabbit hole.  Granted, it is easy if your research topic is narrow or limited, but in instances where you find a lot of jurisprudence, you need to be able focus on what is sufficient to answer or address your question. There were times when I found my digging for more and more supporting cases, rather than evaluating the applicability of the ones I had already found (and cited).  One sage piece of advice from my Supervisor, echoed by Professor Adamski in my Integrations and Advocacy classes was time.  In the future, I will likely have more restrictive deadlines and must do the best with the time I have.

Apart from research, I have learned, and appreciated, that the Commission plays an important  gatekeeper role in the Yukon’s human rights system and its complaint process.  There are many steps and considerations that are required to be exhausted before a complaint is adjudicated.  As a party, usually a respondent, to human rights complaints from my labour relations days, I did not appreciate the nuances of the system, mainly the strengths or weaknesses of the complaint against my client.  Many complainants are not represented by legal counsel.  While a complainant many feel discriminated against and inherently feel they deserve a remedy to correct the injustice they suffered, they are ignorant of the process, legal tests, standards of evidence, and the principle that he who alleges must prove.  All things being equal, a respondent is not necessarily required to disprove the allegations against them.   

As I reflect on my placement, I strikes me that I actually had the opportunity to do work that impacts a real complaint. I cannot divulge details, but my research may influence whether their complaint proceeds to a hearing on its merits or is dismissed.   I wonder: would the complainant accept a reasonable settlement?  This would almost certainly be without an admission of guilt or liability. But is this something the complainant would accept? The settlement offer could reflect the weaknesses of the respondent’s case and be a quick fix –  an avenue to avoid a negative decision and perhaps larger financial liability. Then again, the respondent might have a very strong case and their settlement offer is strategy to avoid the expense of a hearing.  What about the complainant? If their case is weak, would they accept what the respondent offers, even though it would likely be less than what they were seeking?  Are they so steadfast or dogmatic in their belief that they were wronged that they will accept nothing less than their day in court with a public decision that memorializes their righteousness? I have been on both sides of fence in the past; I worked with management to settle where we were weak or to avoid the nuisance of a hearing.  I have also reluctantly gone through a hearing (including travel, the logistics of witness prep, motions and objections, and the scrutiny of document production) when I knew we were in a strong position but the complainant was adamant that they were in the right and would accept nothing less than a public decision echoing their divinity and demonizing my client.

Here is my confession. With this actual complaint, I would like to see a decision. I think both sides have a credible argument. My attitude is not gospel and how much weight, or doubt, you want to give my assessment is up to you. Unfortunately, the world of litigation is not an academic exercise. It is expensive, time consuming, and an emotional investment since someone wins and someone loses. My research had mixed results and I do not know what the outcome would be.

So here we are, back at the beginning of my first entry. I do not know the answer.

The saga continues.

 

 

 

 

 

 

 

Working Remotely for the Yukon Human Rights Commission: Legal Research is Cool

Mathew YaworskiBy Mathew Yaworski

Like many people during the pandemic, I am working remotely, albeit with a three-hour time difference between Whitehorse and Toronto. Working remotely has its perks: its always calm and quiet, every day is a casual day (although I believe the Commission may have a casual dress policy), my office and the bathroom are literally next to each other, and I get access to a fully stocked fridge every day for lunch.  That said, it is not for everyone. You need to be okay with the absence of, or limited, in-person contract and amenable to working independently.

I feel extremely fortunate to have been selected by the Yukon Human Rights Commission, and blessed by their benediction to let me complete my internship remotely. Regrettably, if I was not in a high risk group for COVID-19, I would have definitely joined my classmate (who was also selected) in relocating to Whitehorse.  Who is she? Well, you’ll have to look for her blog to discover her adventures in the Yukon this summer.

My placement is twelve weeks, but my Supervisor was exceedingly kind and generous to work with me to identify the type of work I wanted to do. In my case, it was primarily legal research.  Granted, for most people, research is boring or a source of monotony. But for me, it is an area that interests me and a skill that I wish to improve. Mastering the use of Boolean search terms in CanLii, Quicklaw, and Westlaw is an important skill.  Research, like any skill, requires practice. Fortunately for me, I have that opportunity here and Quicklaw and Westlaw are accessible through the Nahum Gelber Law Library.

I am assisting the A/Counsel with an active human rights complaint, the details unfortunately I cannot share.  However, I can offer that my work involves conducting research into different sections within the Yukon Human Rights Act.  This includes researching case law related to the complaint and reviewing federal and provincial legislation to distinguish between standards for settlement. What happens to a complaint if the respondent makes a settlement offer?  Is there a test or does a settlement offer have to meet a certain threshold? (ie, fair, reasonable, or fair and reasonable)?

I am still trying to find, or propose, the answer.

What does it mean to effect real change?

Nilani AnanthamoorthyBy Nilani Ananthamoorthy

As I am finishing the internship with Yukon Human Rights Commission (“the Commission”), I have had the opportunity to reflect on a summer that was so different from the one I envisioned when I learned that I was given the position. In the December 2019, I was looking forward to a summer in the North, working directly with the community in Whitehorse and hopefully effecting positive change. Instead, the COVID-19 pandemic worsened and I moved back home for a summer that was inevitably unlike any other.

Initially, I – unlike many others – was relatively unaffected by the pandemic and was able to start the internship within the comfort of my parents’ home. I shifted my focus towards adjusting to this new normal and finding motivation in doing online, remote work. But my “bubble” at home was not impervious to the events that were happening outside of it. As the COVID-19 numbers fluctuated in different areas, I read about how minority groups are especially vulnerable to the financial impacts of the pandemic-related work interruptions.[1] Existing health disparities have widened, and minority communities are also especially vulnerable to the health impacts of COVD-19.[2] At the same time, my family and I watched the news every day as protests broke out all over the world in response to anti-black racism. This sparked many conversations about what it means to be systematically oppressed and what it means to be an ally. The events that have occurred this summer have pushed me to reflect on how we can effect change, and what sort of steps need to be taken to protect and empower vulnerable groups.

This internship has shown me the value of an organization like the Commission in pursuing this cause. The Commission provides legal help for all but as I’ve seen in Board of Adjudication decisions, it is especially important in ensuring access to justice for vulnerable groups. If you go on the Commission’s website, it is a one-stop shop for information on the Yukon Human Rights Act and the human rights complaint process. It provides clear and accessible information on harassment and discrimination and provides relevant resources for those pursuing a complaint. As I discussed in my previous blog post, this is important for ensuring that all have access to justice – not just those with legal knowledge.

I have also reflected on the use of the Yukon Human Rights Act as a tool for effecting positive change in individual lives. Section 1 of the Act outlines its objectives, which includes “to discourage and eliminate discrimination”.[3] Section 24 outlines the possible remedies, which includes ordering the party who discriminated to “stop the discrimination” or “rectify the condition that caused the discrimination”.[4] The Board of Adjudication can also order an individual to pay damages for any financial losses suffered or for “injury to dignity, feelings and self-respect”.[5] It can also order individuals to pay exemplary damages if the discrimination occurred in a malicious way.[6] The Yukon Human Rights Act is not unlike other human rights legislation in Canada, which allow tribunals and boards to order individual monetary remedies as well as tangible behavioural and organizational changes. I saw this frequently in employment discrimination cases, where employers were often told to pay damages, but to also implement anti-discrimination policies and training within their workplaces. When I think about systemic oppression and how existing social structures can oppress certain groups, I see the value in ordering remedies that not only compensate the individual affected, but also seeks to ensure that others will not be affected in the same way.

This has truly been a summer of reflection for me. As I watched the news and saw a world that was rapidly changing, I also experienced changes in my personal life. At the end of the summer, my grandpa passed away after experiencing several months of serious health complications. I remember how proud my grandpa was when I was first accepted into law school – and I remember him telling me that those who work with the law have the power to effect real change. As I prepare for the upcoming semester, I am grateful for my experience with the Commission and for my supervisors. Through this work, I’ve been able to reflect on how the law can effect real change for those who are vulnerable in our society.

[1] Brooklyn Neustaeter, “Visible minority groups more vulnerable to financial impacts of COVID-19: StatCan”, CTV (6 July 2020), online: <www.ctvnews.ca/health/coronavirus/visible-minority-groups-more-vulnerable-to-financial-impacts-of-covid-19-statcan-1.5012682>.

[2] Reggie Cecchini, “COVID -19 crisis could increase food insecurity among minority communities: studies”, Global News (19 July 2020), online: <globalnews.ca/news/7190831/coronavirus-food-insecurity-minority-groups/>.

[3] Yukon Human Rights Act, RSY 2002, c 116, art 1.

[4] Ibid, art 24.

[5] Ibid.

[6] Ibid.

Finding a New Normal and Focus

Nilani AnanthamoorthyBy Nilani Ananthamoorthy

Finding a New Normal and Focus

When I first learned that I was going to intern with the Yukon Human Rights Commission, I was thrilled. While applying for the internship program, I had done research on the Commission and was interested in the opportunity to do legal work in the North. I sensed that the Commission’s work was an invaluable resource for its community, helping to protect the rights of its people. I received the offer letter in December 2019, at the end of the first semester of my second year at McGill law.

When I returned to school the following term, the internship was never far from my mind. I took a course entitled “Discrimination and the Law” in preparation and began familiarizing myself with the role of human rights commissions. I also took the time to consider what it would mean to work in the North and how I could respectfully engage with the particular issues faced by that community. Needless to say, I was excited to finish the semester and fly to the Yukon.

Of course, as the COVID-19 pandemic worsened, it became clear that I wouldn’t be travelling north. We needed to change course, quickly. Ultimately, we settled on a remote internship. I moved back to my parents’ home in Mississauga, Ontario, and prepared for a different kind of internship than the one I had originally envisioned.

To be truthful, adjusting to this new normal with the world around me in flux was difficult. As I struggled to find a way to stay motivated and to work effectively, I also felt a sense of guilt watching how those around me were being impacted by the pandemic — losing loved ones and jobs. My frustration began to grow: Why couldn’t I find my footing when I was with my family, within the comfort of my home? And then, a few days into the start of the internship, my grandfather fell ill. His health had been deteriorating for some time, but within the context of the pandemic, caregiving had become a much more complex task and required the entire family. I learned quickly that I couldn’t stick to the strict schedule that I had aspired to follow.

Now, however surprisingly, despite not going to the Yukon, I have still been able to develop a friendship with my fellow intern and receive valuable insights from my supervisors at the Commission. My first task, for instance, was to provide summaries of the Yukon Human Rights Board of Adjudication decisions that could be easily consumed by the public. Sifting through the decisions has helped me better understand the processing of human right complaints and the particular issues that are brought forth to the Commission. But at the same time, translating the decisions into plain language has really made me reflect on the accessibility of the law. Human rights law is designed to protect the rights of individuals — who are often marginalized — and to provide them an avenue through which they can seek proper remedies. Yet, the legal language at times feels abstract and removed from the situations faced by real people.

The application of the Yukon Human Rights Act requires a knowledge of the proper legal tests and the legal definition of key terms. For example, when establishing discrimination, the Board is looking for prima facie discrimination. If the discrimination occurred in the workplace, the employer has a responsibility to accommodate, to the point of undue hardship. To understand the reasoning of a board’s decision, one needs to know the definition of prima facie discrimination and the threshold for undue hardship. At the appellate level, decisions become even more abstract. At times, the cases I was assigned to summarize hinged on the legal interpretation of key words and relied on the interpretations provided by other court decisions. Even with two years of legal education, I found myself reading these decisions once or twice to find the thrusts of the case. So, while detailed accounts of the court’s reasoning are necessary to ensure confidence in the court, it is clear that as is, fraught with legal jargon, they can’t be considered accessible.

Additionally, while preparing the summaries, I often thought of the “open court principle”, which is an important aspect of procedural law. The open court principle requires that courts are open and accessible to the public. In Canada, this includes the right to access to documents associated with proceedings.[1] In Endean v British Columbia, the court recognized that there is an educational aspect of the open court principle — it provides the community an opportunity to learn how the law being applied in courts could affect them.[2] My work with the Commission has taught me that this is only possible if decisions are provided in plainer language.

Through all this, the internship has been thought-provoking, both on a personal front and a legal one. The pandemic presented new challenges — and this required me to adapt as best I could, to restructure my work plan and most importantly, to be kinder to myself. As well, this experience has truly highlighted the importance of focusing on those whom human rights law is meant to serve.

[1] Jane Bailey & Jacquelyn Burkell, “Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2017) FIMS Publications 143 at 167—168.

[2] Endean v British Columbia, 2016 SCC 42 at paras 66 & 85.

Empathy in the Covid-19 Era

Sara WrightBy Sara Wright

When I received my offer letter from the Yukon Human Rights Commission (YHRC), I was ecstatic. It was mid-December and I was looking forward to the summer when I would swap my theoretical classroom discussions for practical hands-on work. Of course, COVID-19 had other things in mind. I was suddenly ordered to quarantine and McGill started shutting down in-person activities. I watched anxiously as international internships were cancelled in March, holding out hope that I would still be able to fly out to Whitehorse. In early April, McGill banned inter-provincial travel connected to the university and I fought back bitter disappointment and frustration as I tried to come up with an alternate plan.

Through it all, I felt remarkably selfish for these moments as many people lost family members and faced financial fears. Empathy is often demanded in times of hardship and, yet, with the distance and solitude many of us face, it is more difficult than ever to infuse empathy into our lives as statistics on deaths become normal visuals and days pass without seeing a familiar face in person rather than through a screen. It also was an emotion I packed away to help rationally try to piece my summer back together and manage the undeniable effects the solitude had on my mental health.

Since starting my internship, I have found myself in a precarious balance with empathy. I volunteered to work on the sexual harassment side of the human rights work of the YRHC and that has reignited the sense of empathy I had previously deadened. I have tried to protect the empathetic flame my work has sparked, gradually feeding it to start engaging with emotions I had selfishly cut off.

Working on a topic I am passionate about has given me newfound energy that had been lacking in the monotony of self-isolation. However, as with COVID-19 related statistics, it is sometimes all too easy to shut off emotions that arise in the work. Such a shutdown is partially needed to be able to get through the challenges presented by working from home. Reviewing a decision from a human rights tribunal may evoke a moment of disgust. I may feel the bile rise as I read what an applicant suffered at the hands of their harasser and of the failure of corporate respondents to protect their workers, but the moment passes as I note down colder facts such as the price tag attached to the applicant’s suffering. I may feel my frustration at the judicial system rise as I describe my work to friends and family, but there is always a distance present.

Empathy is hard to connect to consistently when working in law. Too much empathy and it can be difficult to work on cases that involve something as demeaning as sexual harassment. Too little empathy and we risk being unable to connect to the pain of the people who we are helping. I have found the balance to be particularly precarious with the distance COVID-19 has introduced in our work lives, with so few human faces being attached to names. However, overall, I have found that working for the YHRC has allowed me to reengage with empathy in a meaningful way and renew my passion for the legal side of human rights. In a time when so many of us feel a loss of connection, my work has been a reminder of why I chose to go to law school, and I am very grateful for that.

Disability, Assistive Animals and the Law

By Brittni Tee

In July, I participated in public symposium hosted by the Yukon Human Rights Commission relating to disability, assistive animals and the law. The event provided a forum for participants to learn the basics of human rights law relating to this topic, and to partake in a facilitated discussion about how to improve inclusion for people using assistive animals in the Yukon.  Participants included assistive animal users, as well as various stakeholders representing business, government and transit in Whitehorse.

The Commission handles a high-volume of disability-related work, so prior to attending the conference I had already spent a significant amount of time learning about different elements of disability law. After a working for a number of weeks, I was beginning to feel as though I had a decent understanding of the leading cases and important “tests” that had been laid out by the courts relating to discrimination on the basis of disability. Yet, despite my academic understanding of the law in this area, hearing people speak about their own experiences with discrimination really brought these issues into focus in a different way.  As someone who has always been passionate about inclusive policy-making, the experience inspired me to think more critically about the existing laws on this topic and to consider the practical and legal aspects of improving accessibility across Canada.

Canoeing the Yukon River

Most people have some degree of familiarity with guide dogs, which have been specifically trained to assist blind and visually impaired persons navigate obstacles. However, there are actually a wide variety of tasks performed by service animals which may be less familiar to the public. Individuals with epilepsy may use a service animal to pre-emptively warn them about an oncoming seizure, or to respond in the event that a seizure occurs. Animals can be trained to calm children with autism in high anxiety situations, or to respond to nightmares and flashbacks experienced by people with PTSD.  Some service animals can even be trained to smell when a diabetic person’s blood sugar is too low, prompting their owners to take insulin. In addition to the wide variety of tasks performed by service animals, “emotional support animals” have also been increasing in prevalence.  Unlike service animals, these animals are generally not trained to complete specific assistive tasks, but rather provide comfort and support to people with disabilities.

Prior to working at the Commission, I had assumed that there was a clear legal regime governing the certification and regulation of assistive animals. Consequently, I was rather surprised to learn that there is actually no unified legal definition of a “service animal” in Canada. Instead, there are a variety of different provincial and federal regulatory regimes which address this topic in a rather patchwork fashion.  In the Yukon specifically, there is currently no legislation which explicitly regulates the certification or use of assistive animals. Unsurprisingly, the lack of clarity surrounding these issues has been a source of confusion and frustration for many people.

Under provincial human rights legislation across Canada, it is prohibited to discriminate on the basis of disability in employment, housing or the provision of services to the public. In order to prevent or reduce such discrimination, employers, landlords and service providers have a “duty to accommodate” any special needs arising from a disability (or from any other characteristics protected under human rights legislation). The duty to accommodate is not absolute, but rather extends to the point where additional accommodation would cause “undue hardship”.  Jurisprudence has held that while “undue hardship” should be interpreted to include more than mere inconvenience, it is permissible to consider issues such as cost, health and safety requirements, and employee morale.

In the context of disability, this generally means that employers, landlords and service providers are obliged to accommodate the use of assistive animals on their premise, unless they can prove that doing so would cause them undue hardship. Nonetheless, many people remain unsure about the extent of their obligations relating to assistive animals under provincial human rights legislation, particularly in situations where different regulations may appear to contradict each other. For example, in many jurisdictions, businesses which prepare food are not permitted to allow animals on the premise for health and safety reasons. Yet, under provincial human rights legislation, people with disabilities cannot be turned away from a business for using an assistive animal.  Since human rights legislation generally supersedes other legislation, conflicting regulations should normally give way to the duty to accommodate. Nonetheless, it is perhaps unsurprising that confusion on this topic seems to persist, particularly for small business owners who don’t necessarily have access to sophisticated legal resources.

Unfortunately, these difficulties have been compounded by the perception of an increase in “fake” assistive animals. Since service animal vests and fraudulent “certifications” are readily available online, it is relatively simple to give the appearance of legitimacy to any animal. Given the lack of regulation on this topic, this practice has been able to continue with relatively few repercussions. Sadly, the proliferation of fake service animals has serious negative consequences for persons who genuinely require the use of such animals to assist with their disability. Since fraudulent assistive animals are usually not properly trained, they often exhibit behavioural issues which can cause real problems for businesses and other service providers. This has led to an increase in scrutiny (and sometimes hostility) for those using assistive animals for legitimate purposes.

One potential solution to this problem is to require the certification and identification of all service animals. This approach is currently in use in British Columbia and Albert, but the rollout of these regulations has been met with mixed reviews. Many advocates have noted that certification actually has the potential to create roadblocks for people who depend on the use of service animals. Since there are already incredibly long wait-lists to receive an animal from recognized training organizations, the certification process could further restrict and delay the ability to access an assistive animal. This would have the undesirable effect of decreasing the autonomy of disabled people to choose and self-train the best animal for their needs.

Hiking in Tombstone Territorial Park

At the symposium hosted by the Commission, one of the speakers presented the story of his experience trying to find a guide dog in the Yukon to assist him with his visual impairment. At the time, there were no guide dog trainers available in the Yukon, and the waitlists to receive a dog from out of province were incredibly high. Faced with these options, the speaker decided to train his own service dog, using resources that he had found at the library. This approach was highly successful and allowed the speaker to bypass the prohibitive costs and wait times normally required to access a guide dog. After listening to this story, it became clear to me that excessively regulating this area without first improving access to properly trained animals has the potential to cause more harm than good.

Attending this conference has certainly given me a new appreciation for the numerous ways in which assistive animals often change the lives of the people they have been trained to help. Unfortunately, it was clear from listening to the various presenters that long wait lists, high costs, unclear regulations and a lack of public understanding continue to pose significant barriers to people attempting to gain access to the valuable services provided by assistive animals. In order to make meaningful accessibility a reality, we need to come up with better solutions to these problems to ensure that people with disabilities have the resources they need to fully participate in our society with dignity and autonomy.

Trauma and the Practice of Human Rights Law

By Brittni Tee

In the early weeks of my internship at the Yukon Human Rights Commission, I attended a seminar focused on strategies to prevent vicarious trauma, burnout, and compassion fatigue in the workplace. With the exception of myself and my colleagues, the majority of people in attendance were social workers, addictions counsellors, and paramedics. As I listened to other attendees share stories about difficult situations that they had experienced at work, I remember feeling distinctly out of place. Prior to this workshop, the intersection between the practice of law and trauma had not been particularly apparent to me.  Yet, as my internship progressed, I quickly became grateful for the crash-course in trauma that this seminar had provided.

Most of my work with the Commission centers around responding to inquiries from members of the public.  Although the Commission will assist anyone who has a question about the Yukon Human Rights Act, the majority of inquiries I receive are from individuals who believe that their human rights have been violated. Unsurprisingly, conversations about these experiences are often emotionally fraught, both for myself and for the people that I am trying to help. After challenging days at the office, I sometimes find myself feeling drained, thinking about stories I heard at work while trying to relax at yoga or enjoy a drink with friends. Although I have only spent a few months at the Commission, it’s easy to imagine how the cumulative, long-term effect of this type of work could have negative mental health consequences.

The legal profession is somewhat notorious for embracing a competitive, “survival of the fittest” ethos which discourages acknowledging any sign of weakness. Unfortunately (and perhaps unsurprisingly), this culture has led to alarmingly high rates of addiction, depression and other mental health issues within the profession. Although these issues are beginning to be addressed from the perspective of improving work/life balance, the effects of trauma are less commonly discussed. In practice areas such as human rights law where trauma is regularly encountered in the workplace, this has negative repercussions for both practitioners and the people they are trying to help.

In simple terms, trauma is the psychological and emotional response to an experience that is deeply distressing or disturbing. It is often explained as our body’s response to an event perceived by our nervous system as significant threat, either to ourselves or others (often loved ones). In the field of human rights law, practitioners are also likely to encounter systemic or intergenerational trauma in communities that have been historically oppressed.  In many cases, the negative consequences of these experiences can persist across multiple generations.

While most people recognize that a traumatic event can create long-lasting emotional effects, many people underestimate the severe neurological impacts that trauma can have upon the brain. Research has shown that trauma can create long-term damage to the neurological pathways used for decision-making, resulting in overstimulated “fight, flight or freeze” responses. In addition to changing how a person interacts socially, this can also affect the ability to process thoughts and make good judgments. Taken together, the effects of trauma can significantly impact the way that individuals engage with the justice system and other elements of society.

In recent years, the concept of “trauma-informed practice” has become increasingly mainstream. Fundamentally, this approach focuses on acquiring a basic understanding of the psychological, neurological, biological, social and spiritual impact that trauma and violence can have on individuals seeking support. In particular, trauma-informed practice is centered on creating compassionate relationships built on respect, trust and safety. For practitioners, this means putting the choices of the people you are trying to help at the forefront of your practice, rather than trying to control or micromanage decisions. This is particularly important in human rights law, since individuals experiencing systemic discrimination can often develop a mistrust of authority figures and institutions. In these cases, providing hierarchical services which amplify existing power-dynamics may risk re-traumatizing those seeking assistance. In light of these considerations, trauma-informed practice emphasizes reducing power imbalances and approaching relationships from a position of equality.

In addition to understanding the impact that trauma can have upon individuals seeking assistance, it is also necessary to consider how repeated exposure to trauma can affect legal practitioners. Vicarious trauma, burnout and compassion fatigue are all incredibly common in the legal profession, particularly in practice areas such as human rights law. It is important for people working in these roles to keep an eye-out for signs which may indicate that their mental health may be suffering as a result of their work. Common recognizable signals of vicarious trauma and burnout include feelings such as sadness, anxiety, isolation, irritability, disturbed sleep, fatigue and difficulty concentrating. Many practitioners also experience something called “compassion fatigue” which results in a lack of empathy and loss of faith in humanity.

Increasing trauma-awareness is an important first-step to preventing and treating vicarious trauma and burnout in the legal profession. Workplaces should also strive to build healthy work environments, which include scheduled breaks and opportunities for employees to “step-away” from work when they feel overwhelmed. On a personal level, there are a number of strategies which individuals can use to reduce the negative mental health repercussions of repeated exposure to trauma. These include exercising regularly, eating healthy, maintaining personal support systems, and generally maintaining a balanced lifestyle.

Yet, while these techniques may be helpful, systemic and institutional changes are also necessary to truly reduce the prevalence of these issues. As trauma scholar Vikki Reynolds has noted, “individualizing” solutions to vicarious trauma obscures the context of social injustice in which this work occurs.[1]  The cause of the harm experienced by people working in helping professions is not clients, but the endless struggle and frustration of working within the confines of an unjust systems.  Although self-care is an important element of preventing burnout and vicarious trauma, ultimately the solution to these problems requires a collective commitment to justice and social change.

My internship at the Human Rights Commission has been incredibly rewarding, both personally and professionally. While this summer has reinforced my longstanding aspiration to work in this field, I have also realized that human rights work presents unique challenges. For those interested in building a career working in the public interest, understanding trauma and its effects is crucial to building a successful and sustainable practice. Moving forward, the legal profession must work harder to educate students and practitioners about the intersections between trauma and the practice of law. Ultimately, this will improve both the mental wellness of practitioners and the quality of service that they are able to provide to the public.

[1]https://vikkireynoldsdotca.files.wordpress.com/2017/12/reynolds2011resistingburnoutwithjustice-doingdulwich.pdf

“What’s it like, up North?”

Jones Rebecca

Rebecca Jones

This post is a reflection of my own personal experiences and it is not my intention to make generalizations about life in the Yukon or in the North.

Before I left for my internship, I received a lot of unsolicited well-meaning advice about what Northerners were like, how expensive my groceries were going to be, and how to handle bear attacks. Luckily, I never had to figure out that last one (although I did have a few close encounters with large foxes). Thinking about the Yukon conjured images of Ted Harrison’s colourful and vibrant artwork[1], a few vague historical facts about the Gold Rush, and the line from Robert Service’s famous poem, The Cremation of Sam McGee: “There are strange things done in the midnight sun…”[2]. People’s reactions when they learned that I would be spending some time up North ranged from surprised and concerned to curious and confused. During my time in the Yukon, I was often asked by friends and family from back home: “So what’s it like, up North?”

I was excited to spend a summer in the Yukon; several years ago, I had travelled across the country for a Canada-wide art project without enough funding to make it to any of the Territories. I knew that the North was unique and that, as “southerners,” we are sometimes guilty of forgetting that it exists. I certainly do not remember learning much about the Yukon, other than a brief history of the Gold Rush, despite growing up in British Columbia.

So here are some of my personal observations during my summer in “the North.”

Interaction with wildlife is often a daily occurrence. The city of Whitehorse is small, and the various subdivisions are surrounded by forest. A few steps in any direction will take you on a back-country trail or into the woods. Foxes are often seen roaming the city. There are stories of wolves chasing road cyclists and dog-scaring porcupines. Whitehorse residents are frequently reminded to bear-proof their garbage bins and refrain from leaving out “attractants”. The number of bears that conservation officers have killed this year alone is a stark reminder that this land is not ours and that we are the intruders disturbing the animals’ habitats.[3]

The Yukon River flowing through Miles Canyon.

Many locals that I met were very proud to call themselves “Northerners”. I learned that life up North can sometimes be very challenging and unforgiving due to extreme weather conditions, remoteness, and lack of resources. Early on in the summer, I arrived at the grocery store to discover empty shelves with no fresh produce and a simple note from the staff – it instructed customers to return in a few days because the produce truck had a flat tire and would not make its scheduled delivery time. Several locals explained to me that this was not an uncommon occurrence and that sometimes the trucks can’t make it in because the road is washed out due to weather. That being said, Whitehorse is one of the most Southern communities in the Yukon and quite easily accessible compared to fly-in communities in the Territory, such as Old Crow, where people who visit often bring fresh produce with them as gifts.

I experienced the infamous Northern hospitality from everyone I met – perhaps, due in part to the demands of life in the Yukon and in part to the nature of living in a small community. It started with my new roommate picking me up from the airport at 1:00 am. People were eager to show me around, lend me their outdoor gear, or share a meal. Everywhere I went I was made to feel welcome. During my first few weeks, I was quite taken aback at people’s generosity. I actually remember my big-city roots thinking that “there must be a catch.” After a few weeks, it became my new normal.

About 25% of the Yukon’s population is Indigenous.[4] The Gold Rush, the building of the Alaska Highway during World War II, and the residential school system have all permanently impacted these First Nations in various ways. The Yukon is unique in that the majority of it was never subject to Canadian government treaties until a Final Agreement was signed in 1990.[5] This lack of treaties allowed for Yukon First Nations to work with the Canadian government to negotiate land claims and self-government agreements. 11 out of the 14 First Nations in the Yukon have Self-Government Agreements which allow the First Nations to “make and enact laws in respect of their lands and citizens, to tax, to provide for municipal planning, and to manage or co-manage lands and resources”.[6] I spoke with a few First Nations people working in their Nations’ Justice Departments and they described their association with the territorial government as a “Nation-to-Nation” relationship. The oldest Self-Government Agreements have only been in effect since 1995 which means that devolution processes and capacity-building are still underway.

View from the top of the Venus Mines hike to explore an historic mining structure from an old silver mine.

I had the privilege of meeting with a member of the Kwanlin Dun First Nation Justice Department and she explained some of their current and long-term community justice initiatives, including the development of their own court system, child welfare programs, and community security officers. Throughout this conversation, I was reminded that it is often important for justice initiatives to have a local focus. Canada is hugely diverse in its geography, demography and histories. It is easy to imagine how certain legal instruments developed in other jurisdictions would have different impacts here and fail to take into consideration the distinctiveness of Yukon realities. In my previous blog post, I spoke about my experience at the Re-Visioning Justice conference which provided a forum for Yukoners to come together to discuss systemic discrimination and access to justice issues. These inter-disciplinary initiatives listen to and amplify community voices to promote local participation in forging solutions.

A conference for Yukon lawyers to explore the implementation of the Truth and Reconciliation Report’s Calls to Action in their law practice.

When locals would ask how long I was in the Yukon, they would chuckle at my response and reply, “That’s what I said 25 years ago!”. Perhaps they are right. There is something magical and captivating in the wild beauty of the Yukon. I hope that I am fortunate enough to return one day and eventually travel to other parts of the North.

At the top of Grey Mountain just outside of Whitehorse.

View of glaciers in Kluane National Park, one of the largest non-polar ice fields in the world.

Hiking in Tombstone Territorial Park.

[1] https://tedharrison.ca/

[2] https://www.poetryfoundation.org/poems/45081/the-cremation-of-sam-mcgee

[3] http://whitehorsestar.com/News/summer-of-2017-has-claimed-dozens-of-bears

[4] http://www.statcan.gc.ca/pub/89-656-x/89-656-x2016012-eng.htm

[5] https://cyfn.ca/agreements/umbrella-final-agreement/

[6] https://cyfn.ca/agreements/self-government-agreements/

Re-Visioning Justice in the Yukon

Jones Rebecca

By Rebecca Jones

The Yukon Human Rights Commission

This summer I am living in Whitehorse, the land of the midnight sun, and working as a legal intern at the Yukon Human Rights Commission (YHRC). The YHRC is responsible for enforcing the Yukon Human Rights Act, advocating for legislative change, and human rights education and outreach. In general, the Commission performs a “screening” or “gate-keeping” function. When someone enquires about a case of discrimination or harassment the staff at the Commission must first determine whether this person’s inquiry falls under one of the “grounds” (characteristics such as ancestry, sex, religion etc.) and “areas” (employment, service provision etc.) protected under the Yukon Human Rights Act. Generally, if these two criteria are met, and there are no additional jurisdictional issues, then the Commission might investigate the complaint. After investigation, a complaint might be referred to the Board of Adjudication, informal resolution, or might be dismissed. The Board has the power to impose remedies such as compensation, or even mandate human rights education. As a legal intern, I am helping with inquiries (some of which might turn into human rights complaints), investigations of complaints, preparations for hearings in front of the Board of Adjudication, and some legal research and development of educational materials. I am enjoying this opportunity to dive into the intricacies of how a small statutory human rights agency operates.

Working at the office

The Yukon River. This is my view during my bike ride to and from work everyday.

Re-Visioning Justice in the Yukon

A highlight of the first month of my internship at the YHRC was participating in a conference called “Re-Visioning Justice”. The Commission collaborated with other local organizations to hold a conference to address systemic discrimination issues in the Yukon. This event created a space for First Nations governments, the Yukon Government, the RCMP, civil servants, advocates, and citizens to discuss the Truth and Reconciliation Commission (TRC) Calls to Action. The conference was held at the beautiful Kwanlin Dun Cultural Centre, by the Yukon River, on Kwanlin Dun and Ta’an Kwӓch’ӓn traditional lands. Each morning, the conference started with an opening prayer that included drumming and singing by the sacred fire. This ritual allowed all participants to come together in solidarity and silent reflection before embarking on the tasks of the day. A main theme of the conference was the overrepresentation of Indigenous people in the criminal justice and child welfare systems.

Dr. Cindy Blackstock, the Executive Director of the First Nations Child and Family Caring Society and Professor at McGill’s School of Social Work, opened the conference with her passionate keynote speech. As she pointed out, there are more First Nations children in child welfare care than at the height of the residential school system.[1] While provinces fund child welfare for children living off-reserve, the federal government is responsible for funding child welfare on-reserve (ultimately because the federal government is responsible for First Nations on reserves under the Indian Act) and these children have been receiving less funding. As Dr. Blackstock noted, our country has a two-tiered child welfare system where First Nations children on-reserve systematically receive less funding for child welfare services than First Nations children off-reserve.

Dr. Blackstock has been successful in proving that the federal government practices racist fiscal policy; she was responsible for filing a human rights case against the federal government for discrimination against First Nations children living on reserve.[2] I remember excitedly reading this Canadian Human Rights Tribunal landmark case during my first year of law school. Dr. Blackstock fought this case for nearly 10 years with consistent setbacks, mostly due to the federal government trying to argue procedural issues. In one of the decisions, the Canadian Human Rights Tribunal even found that the federal government retaliated against Dr. Blackstock by spying on her during the case.[3] Unfortunately, since the decision first came out in 2016, there have been 3 non-compliance orders against the federal government.[4] To this day, Dr. Blackstock continues to fight to ensure that these First Nations children are not forgotten. During her keynote, she spoke about the moral courage that it takes to activate our values and the importance of “having the guts to get into trouble for the right thing”.  She reminded us of the personal sacrifices that sometimes have to be made, and the long-term vision and perseverance required, when engaging in social justice and human rights work.

Another notable conference guest was Effie Snowshoe, a First Nations woman who courageously shared her story as a single mother who struggled to keep her children out of the child welfare system; she eventually lost her son Eddie to suicide while he was in solitary confinement in prison. Unfortunately, Eddie’s story is not unique. His, and his family’s experiences, illustrate how our “justice” system consistently fails Indigenous people and people with mental health issues. The use of solitary confinement and segregation in our correctional facilities is a public health problem. Conference attendees spoke of justice reform requiring public health reform in the way that we approach addiction and mental health issues and trauma. Too often, due to stigma and a lack of social support, people with mental health issues are criminalized which exacerbates their situations. Some jurisdictions across Canada have started revising the use of segregation in corrections by ordering reports and developing guidelines.[5] We still have a long way to go. Overcriminalization is a symptom of a society that lacks the appropriate social services. It is evident that we require a multi-pronged and intersectional approach to reforming our justice system that addresses prevention and early intervention. Moreover, prison reform must look beyond the justice system to address the ongoing legacy of colonization.

Find Your Call: A Workshop Bringing Reconciliation to Life

The day after the conference, the Commission hosted a workshop on reconciliation. The session started with the “Blanket Exercise,” an interactive history lesson and empathy-building experience that walks participants through pre-contact, treaty-making, colonization of Indigenous peoples in Canada and their resistance. [6] Blankets are arranged on the floor to represent the land, and all of the participants imagine themselves as Indigenous people. The Indigenous facilitators step into the role of the colonizers. Several participants are given scrolls to read out different moments in history. As the exercise progresses, blankets are moved or taken away and participants perish from small pox, their experiences in residential schools, and other denials of Indigenous nationhood. During the exercise, participants are told that they can resist. It was painful and powerful to see the few people left near the end splayed out and clinging to their blankets. During the debrief, several participants shared how much energy it took to consistently resist. Another emotional moment occurred when participants were asked to turn their backs on the children who had survived residential schools and who had returned to their communities. This action symbolized the loss of culture and identity that these children experienced and how they struggled to fit back into their families and communities. The most poignant part of the exercise for me was the sharing circle at the end. Half of the participants in our exercise were First Nations, and hearing them share their personal experiences – as survivors of residential school, children of survivors, or children of the Sixties Scoop – was a stark reminder of the ongoing legacy of colonization. As a law student, I was also reminded of the law’s sinister role in implementing and enforcing colonial violence through legislation such as the Indian Act. This exercise acted as an important primer, reminding us to understand where we came from before we start to work together on where we are going.

After the “Blanket Exercise,” UVic Law professor Rebecca Johnson asked us to raise our hands and share five of our favourite Calls to Action. These 94 recommendations, published by the Truth and Reconciliation Commission of Canada, aim to redress the legacy of residential schools and advance the process of reconciliation.[7] While the public might assume that these calls are only for the government, they engage multiple organizations, institutions, and even individual Canadians. Professor Johnson’s question prompted a humbling, personal realization – despite having read the Calls several times, I had never actually understood the Calls. As the Associate Director of UVic’s Indigenous Legal Research Unit, she introduced us to a particular method of engaging with the Calls by paying attention to the nouns (who is being called) and to the verbs (called to do what). It is only after an in-depth reading of the Calls to Action that I realized how much potential and creativity are captured within these 94 statements.

Final Reflections on Re-Visioning Justice

Throughout my involvement in these events, I noticed repeatedly the frustration expressed by Indigenous people. This frustration sometimes appeared as apathy among some of the elders and as anger among some of the youth, resulting from all the “talk” about reconciliation without substantive action. For years, Indigenous people have been working to de-colonize and re-indigenize. The self-governing agreements signed in the Yukon by 11 First Nations are just one example.[8] Yet progress is slow and the government has stalled. How do we ensure that the TRC does not eclipse the significant work already accomplished by previous generations of Indigenous people? How do we ensure that the TRC Calls to Action do not become another report in a long line of good intentions collecting dust on a shelf? What can I do in my life right now – as a law student, community volunteer, and member of society – to work towards reconciliation? How do we “re-vision” justice when justice has never seemed to exist for certain members of society in the first place?

While I am convinced that I will never have complete answers, I will continue to ask myself these questions. Human rights work consistently requires us to engage with uncertainty.

Downtown Whitehorse, an architectural allusion to the Yukon’s Gold Rush past.

Fish Lake, located a short drive from downtown Whitehorse. Snow and ice still covered this lake at the beginning of May.

Almost at the top of Caribou Mountain.

Looking out at the mountains from the remnants of an old mining structure left over from Sam McGee’s silver mine in 1905.

[1] https://fncaringsociety.com/fncares

[2] First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2.

[3] First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2015 CHRT 14.

[4] First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indigenous and Northern Affairs Canada), 2017 CHRT 14.

[5] https://www.theglobeandmail.com/news/national/ottawa-provinces-to-pursue-universal-guidelines-on-solitary-confinement/article35210516/

[6] https://www.kairoscanada.org/what-we-do/indigenous-rights/blanket-exercise

[7] http://www.trc.ca/websites/trcinstitution/index.php?p=890

[8] https://cyfn.ca/agreements/umbrella-final-agreement/

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.