Secondary menu
An Interview with Professor Kent Roach on the Neglected Field of Remedies for Human Rights Violations
Professor Kent Roach is Professor of Law and the Prichard-Wilson Chair in Law and Public Policy at the University of Toronto Faculty of Law. Professor Roach’s new book, Remedies for Human Rights Violations: A Two-Track Approach to Supra-national and National Law, provides fresh insights into the field of remedies in both international and domestic human rights law.
This interview has been edited for clarity and concision. A condensed version of this interview appeared in Ultra Vires, and the audio version of this interview can be found on our podcast, available on both Spotify and Apple Podcasts.
Rights Review (RR): We’re very excited to welcome Professor Kent Roach, who is here to talk about his new book: Remedies for Human Rights Violations: A Two-Track Approach to Supra-national and National Law. Professor Roach, welcome.
Professor Kent Roach (KR): Thanks for having me.
RR: Let’s start by talking about what inspired you to write about supra-national law. Most of us know you from first-year criminal law courses. Why did you want to write this book?
KR: I’ve been interested in remedies for a long time, but mostly domestically. And so, I had two chances over the last six years to teach at the Center for Transnational Legal Studies in London. And, you know, that’s a great opportunity that I hope our students will continue to have—the idea is that you bring in students from all over the world so that no one is in the majority.
So, I really started the book as a course at the Center for Transnational Legal Studies (CTLS). One of the things I was able to organize was a field trip for my students to meet both with representatives of the European Court of Human Rights and the Council of Ministers. That trip got me thinking about supra-national law, because, of course, the European Court of Human Rights is probably the world’s most important human rights court.
In my first class, I had a wonderful student from Chile who talked to us about the Inter-American Court of Human Rights. The more I looked at international law, the more I found, perhaps counterintuitively, that domestic lawyers could learn a lot from international lawyers. I think that international courts—in part because they don’t have the coercive powers that some domestic courts have—have been more creative and, I suggest, more thoughtful about remedies.
I was able to find two people who had done this kind of crossover before (not that I was able to meet them because, unfortunately, they are both deceased). One was a Yale Law professor called Edwin Borchard and the other was a Harvard Law professor called Abram Chayes. Both of these people wrote at a time when things perhaps were not as specialized and they really straddled both domestic and international law. Borchard, for example, is really responsible for having declarations recognized as a remedy and he borrows that both from international law and also from civilian systems.
That's how I got interested. I hope international lawyers as well as domestic lawyers read the book—but whenever you try to go for two audiences you always run the danger of losing them both.
RR: Can you give us an example of ways in which supra-national courts have been innovative in their approach to ordering remedies?
KR: The essence of the two-track approach that I defend in the book is really borrowed from the international law distinction between specific measures, which are designed to provide some remedy usually to compensate for a harm that a litigant/participant has suffered, and general measures, which are designed to ensure non-repetition of the violation). That’s a fairly central example in the book.
The other is that supra-national courts have also experimented with interim remedies. This isn’t always successful, so the interim remedies aren’t always obeyed, but as I argued in the book, even that can be significant and can be a signal to civil society that something is very wrong. Finally, international courts retain jurisdiction over matters much longer than especially Canadian courts, which seem quite allergic to retaining jurisdiction.
All those things, I really admired. Another thing I admired was that—in part because international law started with state-to-state relations and now has developed into state-individual relations—its approach to satisfaction is much less monetized than the common law’s approach to damages. International law does not pretend, like domestic law sometimes does, that paying money to a person whose life has perhaps been forever altered by a human rights violation suddenly wipes the slate clean and achieves some form of corrective justice.
RR: Could you speak a bit more on the idea of declarations as remedy, and how this has a component coming out of civil law and how it is applicable potentially within international law?
KR: There is a tendency for domestic lawyers to think of declarations as kind of a second-best remedy because, usually, in domestic law, there is a choice between a declaration and an injunction. A declaration is a statement by the court of what the law requires that typically ends a court’s jurisdiction over a case, while an injunction is a mandatory order telling the defendant—often the state—to do something. There, the court retains jurisdiction because the breach of an injunction is a form of fault—contempt of court.
One of the things that I've been arguing for domestically, but that I also saw reflected in international court, is that we need a remedy halfway between a declaration that ends a court’s jurisdiction and an injunction, which the Supreme Court of Canada has told us needs to be very specific because it is almost like a mini-criminal statute. That's what I call the “declaration plus”.
The “declaration plus” is something by which the court provides some idea about what is required to comply with rights going forward, but also retains jurisdiction so that if there's disputes about what the court meant or a failure by the government to respond, the parties can go back.
It was very bittersweet because just after I finished the book, Joe Arvay, who I’d had the pleasure of working with and probably Canada's leading public law litigator, passed away. One of Joe’s many important cases, the Little Sisters case, really illustrates why we need what I call a “declaration plus”. Little Sisters [Book and Art Emporium] won a declaration that customs had profiled their imports as a book store whose clientele were sexual minorities. But customs really didn't respond or fix its act in response to the court’s ruling and Joe had to start litigation again for Little Sisters.
As you may recall from constitutional law, that case went to the Supreme Court but was stopped when the court refused to award advance costs to allow this very small bookstore to take on the government of Canada and the customs bureaucracy. For me, the “declaration plus” is practical. It happens, I think, much more routinely in supra-national law because most of those courts don't have the jurisdiction to order an injunction. They make up for it by retaining jurisdiction, which, I think, Canadian courts—partly because of what the Supreme Court of Canada has told them—are extremely reluctant to do.
RR: You mentioned the distinction that arises within supra-national law of treating parties as being in state-to-state relations versus state-to-individual relations and how [resolution] comes off as less monetized because of that.
I was wondering what your view might be on how that could be applied to remedies for violations of Indigenous rights. A lot of the reconciliation aspects are treated as nation-to-nation remedies, potentially.How do you think that our legal system can better address Indigenous litigants’ demands?
KR: That’s a good and challenging question. I devote a chapter to remedies for violations of Indigneous rights and friends such as John Burrows and Brenda Gunn read those chapters and provided suggestions and improved the final result. But I am tentative here because one of the things we don’t want is to promote a form of neocolonialism with respect to Indigenous rights. Even the Inter-American Court of Human Rights, though in some ways the boldest in terms of Indigenous rights, has not always avoided that kind of paternalistic neocolonial approach.
I think that going back to the state-to-state route—the idea that courts can create a space for Indigenous people to come up with their own solutions—is something that we really need to think about.
Since the book was finished—and again, this demonstrates how books are only the best you can do at any point in time—I was really grateful that students at U of T asked me to write a short piece on remedies for climate change because the Journal of Law and Equality was doing a special issue. Well, I had just finished this book, and I probably should have had a chapter on remedies for climate change, but fortunately I was able to write that chapter for the Journal of Law and Equality.
One of the things that comes out there is that we need to recognize that Indigenous governments may have an ability to regulate and pursue strategies to mitigate climate change. So, that's one of many remedies that I talk about in that article which is a pretty direct offshoot from the book. I actually hadn't thought as much as I should have about climate change, but doing the research for that also kind of convinced me that sometimes the strongest remedies, kind of going for the remedial homerun, can actually backfire.
The other thing that has really informed this book is the fact that I have been fortunate enough to represent the Asper Centre and a number of other groups in remedial cases. One of the things that that has taught me is that even the strongest possible remedies don't always work or change things on the ground. Sometimes judges don't think about what a right is without worrying about remedies, and I think domestic court judges want a really neat remedy that ends their involvement in the case. So, often, when I’m brought in to give advice on litigation, the question is really, “How much can you soften the remedy in part to get the court to buy into the right?”
My experience in these cases also gave me an appreciation that sometimes both litigants in courts just run out of steam by the time they get to remedies. I bet most constitutional law courses and most international human rights courses probably don't spend a lot of time on remedies. And part of what I wanted to reflect in the book—and I'm really happy that Cambridge was able to secure this really moody Monet painting to put on the cover of the book, that's probably the best part of the book—is that sense that remedies often fail.
And one of the things that I increasingly worry about human rights is that it's really a language of perfectionism and I think for many people—and I mean if we're talking about climate change for younger people—that doesn't line up with their experience. Yes, you have a right to life and a right against torture but what if you’re tortured or what if your life is threatened by climate change or some other factor?
And so one of the things that I've kind of built into the book is this idea that we have to own up to remedial failure. We have to recognize the way international courts are more honest about how sometimes remedies don’t work and the answer is not to give up but to try again. If the court has retained jurisdiction over the matter, or if the court is aware of prior attempts to remedy, then it can learn from that experience and perhaps ratchet up the remedies. But if the court sees each case as simply tabula rasa, then we’re not going to have the sense of remedial failure.
Part of my big bug-a-boo is that most of the books I pick up on rights, whether its domestic or international law, don't really grapple fully with the messy world of remedies.
RR: Your comment about the harsh reality of remedial failures addresses why we were interested in reading your book in the first place. Perfect justice shouldn’t be the enemy of individual justice, which is a very interesting concept because we live in an age where a lot of social movements are demanding radical and different things. It's important to remember that we can be creative with the remedies within our existing system.
KR: One of the other papers that I've written is in honor of Joe Arvay, and one of the things that Joe probably didn't agree with me on, but where I've come to respect his position on, is that in the Carter case and others, he really insisted on an immediate declaration of invalidity and he insisted on individual remedies. And I think that was because Joe listened to his clients and he knew that his clients mattered. And so one of the things that has probably changed for me over the years and in writing this book, is that I have come to appreciate that an individual remedy—and that's one track, the second is the systemic track—is important, even if it is inadequate. Damages can often be inadequate but it's better to call the judge’s attention to an individual person even if you can't achieve perfect distribution of justice.
I’ve also had the wonderful opportunity to go to Kenya and meet Justice Albie Sachs, the great South African constitutional court judge and former ANC member. Justice Sachs initially said—I think like many of the South African constitutional court judges—that we shouldn’t really get into socio-economic rights because we have a society where there are huge distributional justice and poverty problems. But later in his career as a judge, he drew this distinction between micro- and macro- injustices. It was in a housing rights case where the court enjoined the destruction of irregular housing that so many people lived in. He said, “Look, I as a judge can prevent this micro-injustice. I know that it may be a generation before we deal with the macro-injustices, and we shouldn’t lose sight of that, but we can actually do both.”
The South Africa housing rights cases are an important component of the book because they show that judges sometimes protecting people who may not be living in the best circumstances, but it’s still their home, while recognizing that there needs to be a longer term systemic remedy—hopefully one in which they consult with the people that are actually going to benefit so that there is better housing. But, you know the answer to better housing may not be to bulldoze a place that for better or worse a person has called home for the last 10 years.
RR: I think that really illustrates why Rights Review listeners should be reading your book. We’re interested in legal systems across the world and sometimes it's hard to find a book that spans across criminal and constitutional law issues but also taps into things like remedies and housing cases.
KR: I very much hope that the International Human Rights Program can get back on its feet. One of the reasons I resigned as Chair of the Asper Centre in protest of the university’s approach is that I felt very strongly that the idea that clinical directors were “non-academic”, and therefore not protected by the academic freedom that I enjoy as a professor, really spoke to a very elitist attitude that dwells in the world of perfect rights and high-status and looks at things like litigation and remedies as somehow dirty and inferior. Fortunately, a recent committee has recommended that clinical directors be recognized as having academic freedom, though I have to say this wasn't done in a very well-publicized or a particularly collegial, polite, or courteous way. But for me that is also something.
I was really fortunate enough to be able to work with the Asper Centre—and someday in the future, perhaps with a revived International Human Rights Program—because I think that a lot of our students get a skewed view of what happens in class. I include myself in this criticism. If you get to a world where remedies are seen as a second-thought or a simple matter of corrective justice that somehow restores the status-quo ante and achieves justice, then I think you are operating under a very unrealistic view of the injustices in the world. I think it's only by grappling with the difficulties of remedies, and frankly the ineffability of remedial failure, that you see that this has to be a constant struggle, and that people who are struggling to get things like remedies shouldn’t be denigrated in any way.
RR: Thank you very much, Professor. That's really on point to everything that has been unraveling over the past few months, especially with respect to the hiring scandal as well. And we are particularly grateful that you brought that up because it has actually affected a fair few students within the IHRP on a personal level as well, certainly in terms of the opportunities that we've been able to avail. I think a lot of people came to the faculty and chose U of T especially because of that program too and they've been robbed of lots of opportunities in the process. It’s ironic that the sort of program that would train students to enter the world of human rights law and help them become better practitioners in the field has become stunted in this way.
KR: I think this is also a matter of professional responsibility. One of the things that has really influenced me is a 1975 article [called “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation”] by Derrick Bell, who’s one of the founders of Critical Race Theory. It was written after Bell left the NAACP, a public interest group that had done a lot of school desegregation litigation, and had moved into the academy. It’s this incredibly honest portrayal about who his client was.
Was his client the NAACP, which wanted to achieve (to the extent possible in a residentially segregated America) racial integration, or was his client the families and African American school children? Once you're a parent you get really selfish because your child only has one education. Or, to transfer this to the students here, only three very expensive years in law school. For me, this is an issue of professional responsibility.
I also find it disheartening that hiring someone who makes professional responsibility their main topic of academic inquiry has never been the priority in the over 30 years that I've been on the faculty. And there are lots of reasons why I frankly feel increasingly alone on this faculty and I find that this faculty does not reflect values that I hold dear. I definitely appreciate that students who came here for the IHRP feel robbed.
The only thing I would add is, speaking for myself, I feel that the faculty is moving away from what we think it should be doing, and I worry that without things like the program, that we aren't going to attract the students who are interested in these issues of social justice and these kinds of messy struggles to get remedies for the most disadvantaged throughout the world.
RR: Thank you for sharing such a candid comment on the current IHRP situation. Bringing it back to the idea of professional responsibility, a lot of us in 3L have taken or are currently taking Legal Ethics, but the IHRP situation has never really been brought up or linked to professional responsibility and how people in this profession should conduct themselves when making decisions on a large scale.
I’m almost reluctant to bring this conversation back to your book, but you were talking about how when ordering remedies judges should be mindful of individuals and situations. You also mention in your book that proportionality principles will contribute to a more realistic and practical approach to getting remedies right. I was wondering if you could comment further on that.
KR: On the first front, I think it is important that judges provide remedies for specific individuals, even if those remedies are partial or even inadequate. One of the cases that I was involved with for the Asper Centre involved housing rights. We were intervenors, and we tried to help on the remedies, but I’ve really come to see that case as a bit of an error. It's a bit of the Derrick Bell error that I was talking about, because there wasn't a sense of an individual who needed an immediate housing remedy. So I think that that is something that courts can do.
I think when it comes to longer term systemic remedies, that’s where proportionality perhaps has its most bite. Take for example climate change: there are competing interests when it comes to remedies for climate change and I think that rather than allowing those competing interests to overrule the right or perhaps even to put a justified limit on the right, we can think about it at the remedial stage. I’m appealing to proportionality reasoning as a form of practical reasoning that is really helpful in the remedy stage. Instead of a judge saying the balance of convenience and the public interest is X, that judge would have to go through the proportionality steps that we’re all familiar with.
Again I have to say that no one writes a book alone, and here—although he no longer visits the faculty—Aharon Barak really encouraged me to pursue this line of thought and gave me a lot of support to write this book. Of course, he’s the great Israeli judge, and he has a book on proportionality that’s in the same series as this book appears in, the Cambridge Studies in Constitutional Law.
RR: I find it very interesting that you bring up climate change in a lot of these discussions. Speaking for myself, I think I’m part of a generation of young people who see people like Greta Thunberg as a hero in this important issue. But not everyone can dedicate all their time to a fight even if it's so important as climate change. So, we end up having a lot of frustrations and view our existing systems and ways of life as somehow illegitimate. In your book, you mention that supranational courts have better remedies because they need greater legitimacy. On the flip side: can we expect our legal system to be more trusted by the public if we properly address remedial failures?
KR: Another case I was involved with was the Golden strip search case. That's a case that, for me, I think promotes cynicism about the law. In 2001, I represented Aboriginal Legal Services, the African Canadian Legal Clinic [now, the Black Legal Action Centre], and others in R v Golden, and we won. The Supreme Court said, “No more routine strip searches.” But we know for the next 20 years, especially here in Toronto, there were a lot of routine strip searches. So I think that when you don't have effective remedies, it promotes a lot of cynicism.
I think the other thing that we have to counter is this idea that one mega-remedy is going to somehow deal with climate change or police racism and violence. I think those in civil society have to realize, and I think most of them do, that they're in it for the long haul. The remedial approach that I outline here and dialogic approaches generally require civil society to have a lot of staying power. So you think of Canada v Bedford and Carter v Canada as two of the most significant Charter cases, but in both cases the judicial victories became legislative losses.
So I take very serious people like Greta Thunberg or people that talk in the media because I almost think that for most of this complex litigation you need a legal team that will help you win in court. But you also need a political and media team that will then either ensure that that legal victory doesn’t turn into a judicial defeat—or ensure that if you lose in court, it can still turn into a political victory.
One of the problems in Canada is our civil society is so thin, and part of what the IHRP did is it gave students an entry into a much better financed civil society that exists in either Europe or in the United States and sometimes in Latin America. Part of that kind of dialogic approach is, yes, courts have their place, but you also need to be ready and able to engage in the media and politics. I think that is one thing that we need to teach our students, and I don't think you can teach that—or can best teach that in a clinical setting, which is another reason why we have to respect clinical instructors not as second-class citizens or non-academic faculty, but as academic faculty that deserve our respect.
RR: Thank you, Professor. You also mentioned specifically that civil society has a lot of staying power, which obviously resonates with us quite deeply given the example that you just gave us. But with respect to, for example, the murder of George Floyd by police and the fact that we’re living in an era of Black Lives Matter, how would you say that remedies for social, economic, and cultural rights look? Would you say that class action lawsuits are an effective tool for addressing those sorts of claims? What other alternatives would be relevant?
KR: Last year, when I taught Legal Process, we talked quite a bit about the G20 class action. Class actions are definitely one way to go. I hear there's even venture capital that is financing class actions, But I guess my worry, especially in the Canadian context, is that we're using class actions when courts should be retaining jurisdiction.
There's been a number of class actions where over $15 to $20 million has been awarded with respect to solitary confinement. Well, the lawyers are going to take 25 to 30% of that off of the top, and when you get down to it, people are getting around $5000, which of course was the damage award that Cameron Ward got for being strip searched. That was another case that I was involved with both at the BC Court of Appeal and the Supreme Court. And so I worry that class actions, especially in Canada, are being used as a substitute for what should be retention of jurisdiction because, certainly, solitary confinement is continuing in Canada, albeit under a different name. Antony Dube and others have pointed that out.
This goes to professional responsibility—that class actions are a kind of fix that we have for our access to justice problems and it allows firms to invest literally millions of dollars into lawsuits. The remedial dilemmas that Derrick Bell talked about so eloquently, are huge when it comes to class actions because once you get a class action certified there's a real temptation for lawyers to settle in order to get some of the money that they've invested back. Although the judge has a role in approving the settlement, frankly our Canadian judges, even during COVID, have not shown receptivity to retaining jurisdiction.
When you think about the things that we hear go on in our temporary detention centres here in Toronto—some horrible stuff goes on—thinking that class actions are somehow going to cure this is dreaming in technicolor. I think it's giving lawyers an opportunity to say, “Oh, we’ve done something, and we've also earned a good living doing it.” I think damages have their place, but I don't think we should use damages so that governments can buy their way out of their obligations to respect basic human rights.
RR: It’s also interesting to note the changed legislative framework with respect to class actions in Ontario, as well. As of last year, it's just become tougher to bring that class action to court, or at least have it certified in a meaningful way because the standard for finding commonality has become a lot higher as well.
But it's also interesting because you did mention that even if you lose a court case, you may still end up possibly gaining a political victory. It begs the question: what means are available in a situation where cultural rights are on the line, for example, so that we can at least get the sort of exposure to have a political victory, even if we don't necessarily have a strong chance of securing actual remedies in court?
KR: That’s really where I think the media and socially engaged universities play a role. My colleague Anver Emon has been doing work on, and there have been other studies by the International Civil Liberties Group on, the practices of the Canada Revenue Agency auditing Muslim charities. If we talk about policing: what about the under-protection of Muslims and other groups from terrorism and hate crimes? A socially conscious university needs to encourage this sort of research, especially as the traditional media dies, right?
Some of my best experiences at U of T have involved a wrongful convictions course. Amanda Carling and I had a number of journalists take our course, and of course, media plays a huge role in remedying wrongful convictions and indeed all forms of injustice.
The media and universities and think tanks and so on need to step up to provide this sort of information because research is really powerful. One of the things I've been involved with over my career, which you know maybe hasn't been a success, is R v Gladue and the recognition of Gladue sentencing. That would never have gotten off the ground if we couldn't point to the research done by Stats Canada.
When I think about remedial failure I probably think about Gladue, which is probably the most important case I've been involved with in my life and probably if I ever get an obituary would be mentioned in it. It, in some ways, has been a spectacular failure, but I've really been honored to work with people, like Jonathan Rudin, who just don't give up and just keep fighting. He fights from his perch at Aboriginal Legal Services and now he's a litigator in residence at the David Asper Centre, which again brings us around to the absolute importance of clinical programs at our law school.
RR: That gives us our tagline on our way out, as well: fighting from our perch. It’s probably the best takeaway we can have moving into the profession, as well.
Thank you very much for making the time. We've covered only a few points and only made a dent into your book at this moment in time. But given everything that you've shared with us, and how contextual it is to everything that we've studied in our last three years as well as whatever is happening in civil society around us, we would highly encourage our listeners to pick up Professor Roach’s book. There's a lot to learn from it.
KR: Thank you very much. You both have had excellent questions, and as you say, you just need to kind of push a button and I can talk forever. So take care, thank you.