May 7, 2018
By Professor Mary Liston
Photos by third year Allard Law student Ed Chen
Reframe old narratives, decriminalize social problems, grok data, constrain power, remove cognitive biases, relieve trauma, end stigma—you might be surprised to learn that these were the key themes that emerged from the 2018 Social Justice Law Conference “The Role of the Legal Community in Supporting Social Movements” that took place on March 3. This year’s conference—sold out with standing room only—offered four cutting-edge panels, a skills-based workshop on movement lawyering, and two terrific talks. The Conference was the fruitful product of many helping hands, including: Allard School of Law’s Tracy Wachmann (Public Interest Coordinator) and Professor Mary Liston (Director, Social Justice Specialization Program); JD students Jonah Brook, Joey Doyle, Claire Kanigan, Carly Peddle and Julia Riddle (representing the Social Justice Advocacy Network, newly-formed Law Union of BC, Law Students for Decriminalization and Harm Reduction and Canadian Association of Refugee Lawyers); Aleem Bharmal (Community Legal Assistance Society) and Tina Parbhakar (BC-Canadian Bar Association’s Equity and Diversity Committee); and, numerous volunteers.
The Conference kicked off with the panel on “Just Housing: Strategizing for a human- and homes-first society” with panellist Andy Yan (Director, The City Program at Simon Fraser University), presenting new data from a just released report by SFU’s Housing Research Team on tenant vulnerability in Metro Vancouver, which challenged audience assumptions. Yan argued that we need multidisciplinary packs of experts working together to find solutions and this includes lawyers who understand that data is not neutral and can also help produce better data. After all, he concluded, “the fastest way of solving any social problem is to stop counting it.” DJ Larkin (Lawyer, Pivot Legal Society) followed with a powerful discussion about stigma as the force that drives exclusion in Vancouver. Let’s move,” she said, “beyond exclusion by design” and really see how bylaws, laws regulating public spaces, and criminal laws exacerbate vulnerability and loss of dignity. Jean Swanson (Anti-poverty and Housing Activist) noted that law is not all of the answer, or even the most important piece in the puzzle, but law can produce positive change by repealing laws favouring landlords (i.e., ‘renovictions’), enacting rent controls, and growing the 1% of social housing using revenues generated through progressive taxes.
“Criminalization in the Crisis: Criminal justice responses to the fentanyl epidemic” was the theme of the second panel. Panellists concurred that the opioid crisis looks like a health problem and not a criminal law, enforcement, or sentencing matter. According to Garth Mullins (Journalist, Activist with VANDU), Vancouver police say they are pro-harm reduction, but they are still “slapping on the cuffs’’ for all types of drug use, which means that enforcement still lies at the heart of drug policy. Echoing a theme from the first panel, Karen Mirsky (Lawyer, Begbie Court Law) emphasized that we need to “de-stigmatize” individuals with addictions as the epidemic touches all classes and people need to know that they can access addiction recovery and support services without shame or fear. While lawyers’ work in this crisis might seem like rearguard action only, Mullins countered: “Boy, does having a good lawyer change your life—good lawyers make a difference.”
Indigenous Children’s Rights and Care
The third panel focused on yet another current crisis—Indigenous child welfare in British Columbia. Panellists discussed the multigenerational legacies of fear, trauma, colonialism, and alienation that drive many of the inequities in the child welfare system. Katrina Harry (Lead Counsel, Parents Legal Centre) and Laura Matthews (Lawyer and Mediator, Mathews Mediation) explained that when problems arise in Indigenous families, many parents do not foresee removal as an outcome and are shocked when it happens. Families become further damaged if the child is then placed in foster care. Early collaborative engagement between families and legal advisers can prevent this kind of system-induced trauma from occurring in the first place and makes removal of the child the last resort. Dylan Cohen (Advocate, First Call: BC Child and Youth Advocacy Coalition) emphasized that legal change can come from using a child-centred model of care. As previous panels emphasized, the legal framework cannot provide the whole solution. Re-learning parenting skills lost as a result of residential schools, ensuring that Indigenous communities have adequate resources to combat poverty (e.g., housing, sanitation, clean water), and ensuring consent from Indigenous community decision-makers regarding removals are other crucial tools. The answers, the panellists agreed, are already here, and Indigenous communities have the capacity to heal themselves, but the current legislative framework does not help them.
Keynote address by The Honourable Judge and recently appointment Professor at the Allard School of Law, Mary Ellen Turpel-Lafond
Mary Ellen Turpel-Lafond’s video-taped keynote, “Transforming Advocacy—how being an advocate in a complicated and often exclusionary system takes truth-telling and doubling-down on social justice,” was played for conference participants. Turpel-Lafond’s experience as an advocate, judge and activist has led her to recognize the fundamental importance of the right to be heard within the legal system generally, but also particularly for Indigenous children and families. Handling 17,000+ child welfare cases was, she said, “mind-blowing” and it changed her perspective on everything: “But learning how to listen with respect, humility, and in a culturally appropriate way was crucial.” The best interests legal principle, she said, has legally not been well connected to the people it serves. Indigenous youth have a right to be connected with their communities. During her time as BC’s Representative for Children and Youth, Turpel-Lafond reframed her understanding of an advocate’s role by changing the guiding question from ‘where should you live?’ to ‘where would it be just for you to live?’. She suggested that small and simple changes do really matter, like changing the label for immigrant children from English as a second language learner—which connotes a kind of second-class citizenship—to the more positive English language learner.
Irina Cerić (Lawyer, Law Union of BC) led the Movement Lawyering workshop where she walked the audience through several models: cause lawyering in community and private practice; defending social movements and supporting protest by working with legal collectives; and, public interest legal advocacy. What should movement lawyering look like in BC?, she asked. Lawyers play different roles within each model, she said, but “rebellious lawyering” requires collaborating with allies and being more than just a good representative: “It is helping to build a movement, not just getting your name on that Court of Appeal decision.” This role can raise a number of ethical issues, such as the question of how movement lawyers are accountable to the groups they represent. “Using rights talk to package political demands both narrows and tames these demands.” Cerić said, “Lawyers need to be cognizant of this risk.” She advised young lawyers in the audience not to “parachute in and be the hero for movements,” but to take direction from movements, and offer support as needed.
BC’s Mental Health Act
Allard School of Law alumna Laura Johnston (Lawyer, Community Legal Assistance Society) presented findings from her recent report, Operating in Darkness: BC’s Mental Health Act Detention System, which calls for a system-wide review of the detention system due to its substantial rule of law and accountability deficits. Several deficits glaringly stood out: lack of access to a lawyer, the use of restraints and seclusion as routine admission procedures for mental health detainees, the concerning rise of involuntary admissions through ‘deemed consent’, due process violations such as no reasons for detention or automatic periodic reviews, and the practice of treating clothing as a privilege that can be taken away as a punishment. In Johnston’s view, these common law and Charter violations require the entire Mental Health Act to be scrapped: “I have clients who tell me that being in jail is much more preferable to being in mental health detention.”
Immigration and Refugees
The final panel examined “Justice in Migration: Law, lawyers, and movement support for immigrants and refugees”. This panel described the migration detention system as a system of exclusion that is fundamentally broken and requires significant political effort to change. What made recent work really hard, said Saleem Spindari (Advocate, Manager of Refugee Settlement Support Projects at MOSAIC), was the anti-immigrant political messaging by some politicians, but recent positive media coverage of the Syrian refugee crisis has helped change many people’s minds to more inclusive perspectives on migration. Rule of law and accountability deficits also plague migration law and policy: continued lack of sufficient legal aid funding, risk of abuse faced by those in the personal caregiver program, barriers to refuge constructed by the Safe Third Country Agreement and, until recent changes in 2015, the inability of provincial courts to hear habeas corpus applications from migrant detainees. Echoing the movement lawyering workshop, Amanda Aziz (Lawyer, Embarkation Law) concluded by reminding the audience: “Stay connected to your roots, with the groups that do work you believe in, and with groups that do non-legal work. Remember why you are doing this.”
Wayne Robertson, Executive Director of the Law Foundation of British Columbia, provided concluding remarks along with the Allard School of Law student organizers. In their closing remarks, the students expressed their appreciation for Allard School of Law’s support of the community legal work they really care about, and also their recognition of the important service performed by BC’s diverse social justice law community. The students concluded with an enthusiastic call to action for participants to continue their involvement with social justice issues and create further opportunities for lawyers, advocates, and activists to come together to listen and learn from one another. The Conference organizers are grateful to the Franklin Lew Innovation Fund and the Law Foundation of British Columbia for providing funding for this conference as well as to the Coast Salish Peoples who shared their lands with us.