CCLA Ebulletin, October 2009
A free press is essential to democracy/Une presse libre est essentielle à la démocratie
Look for countries around the world where there is a weak media and you are likely to also find a corrupt and abusive government. An independent, vibrant press and democratic accountability go hand-in-hand. Freedom of the press not only guarantees the media’s right to investigate and disseminate information on issues of public interest, but it also safeguards the Canadian public’s right to know what is occurring in the halls of power. Those of you who have been reading CCLA’s print NewsNotes will know that the Supreme Court has been hearing quite a few cases regarding freedom of the press recently. This past spring, two cases (Cusson; Grant) examined whether existing defamation law was sufficiently respectful of freedom of expression, and particularly freedom of the press. A few months later, CCLA was back before the Court in a case where the government was attempting to further a fraud investigation by getting search warrants and assistance orders that would compel a journalist to reveal a confidential source (National Post). In mid-October, the Court will hear another three cases that touch on journalist-source confidentiality, and the constitutionality of a court-ordered publication ban (Globe and Mail trilogy). Finally, a group of media organizations has challenged the Quebec Courts’ rules restricting journalists’ activities in courthouses and prohibiting the rebroadcasting of any courtroom proceeding (CBC). In each of these cases, CCLA is urging the court to provide robust protection for the activities of the press, and only condone government intrusion on core media activities where absolutely necessary.
L’indépendance de la presse va de pair avec la démocratie. L’ACLC sera devant la Cour suprême cet automne pour défendre la liberté de la presse dans plusieurs causes dont une impliquant la confidentialité des sources journalistiques dans l’affaire des commandites.
It is undeniable that the changing face of the media poses some serious challenges to society’s traditional conceptualization of freedom of the press. Will traditional journalism models remain economically viable? In the world of twitter, citizen reporters and bloggers, who exactly is a journalist? And what mechanisms will guarantee ethical and accurate reporting in the future? What cannot be questioned, however, is the importance of a free press within our society. Simply put, accountable democracy cannot exist without some form of reliable, independent news media. CCLA’s hope is that the Supreme Court’s rulings in these cases will reaffirm freedom of the press as one of the most fundamental freedoms within a democratic society.
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On Friday, November 13, the Supreme Court of Canada will again consider the case of Omar Khadr. Mr. Khadr, of course, will not be there. He has been imprisoned by the US military without trial since the age of 15, and after seven years of detention, the Canadian government still will not revisit its refusal to do what every other western country has done, and ask for its citizen’s return. The explanation from our government remains unchanged: Mr. Khadr has been charged with serious crimes, and we must let the United States decide his fate.
Depuis sept ans, le jeune Omar Khadr est incarcéré sans procès. Le 13 novembre prochain, la Cour suprême se prononcera encore une fois sur son cas. La question est de savoir si le gouvernement canadien, à l’instar d’autres gouvernements démocratiques, doit demander le rapatriement d’Omar Khadr afin de se conformer à ses obligations relatives à la Convention sur les droits de l’enfant.
On July 17, 2000, Canada ratified the Optional Protocol on the Rights of the Child, and fully committed to the rehabilitation and social reintegration of all child soldiers. In its first report on Canada’s adherence to these principles, the government highlighted that it spent:
• $1 million on disarmament, demobilization and reintegration projects with UNICEF for children in the Democratic Republic of the Congo and in Sri Lanka;
• $1 million to prevent the recruitment of children into fighting forces with Foster Parents Plan;
• $10 million in contributions to the United Nations Development Program to support the demobilization and reintegration of soldiers, including children, in Afghanistan; and
• $15 million through a World Bank trust fund for the demobilization and reintegration of ex-combatants, including children, in the Great Lakes region of Africa.
During this same period, the Canadian intelligence service went to Guantanamo Bay to interrogate Omar Khadr, a Canadian child soldier, knowing that the US military had “prepared him” for the interrogation with three weeks of sleep deprivation. This treatment contravened the convention against torture. The CSIS oversight body has now recognized that the practices of the intelligence service should be changed to fully reflect the values embedded in international human rights conventions, including the Convention on the Rights of the Child. Nevertheless, on November 13, the government will argue that the courts should not interfere with decisions that the Canadian government makes regarding the treatment of Canadian citizens abroad. CCLA is intervening to ensure that decisions that affect the rights of Canadian citizens held in foreign jurisdictions in circumstances that violate international law are not immune from judicial scrutiny.
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On July 24th, 2009 the Supreme Court of Canada issued its decision in Alberta v. Hutterian Brethren of Wilson Colony. CCLA intervened in the case and was represented by Mahmud Jamal, Colin Feasby and David Grossman (Osler). Our factum is available here.
Une petite communauté huttérite de l’Alberta a perdu sa cause cet été lorsque la Cour suprême du Canada a conclu que la possibilité de refuser de se faire prendre en photo pour des raisons religieuses n’était pas constitutionnellement nécessaire, et que le gouvernement de l’Alberta pouvait exiger que tous les conducteurs aient un permis de conduire avec photo. L’affaire Alberta v. Hutterian Brethren of Wilson Colony, a été rendue le 24 juillet et c’est à 4 juges contre 3 que la décision a débouté les Hutterian Brethren. Notre association était intervenue au soutien de la liberté de religion.
La cause a soulevé des commentaires variés au sein de grand public. Pour une analyse des enjeux juridiques posés par la décision et surtout ses ramifications pour l’avenir, lisez les commentaires sur le site internet.
At issue was the right of the Hutterian Brethren to continue to have a non-photo driver’s license, after the government of Alberta moved, in 2003, to develop a facial recognition data bank and impose mandatory photos for driver’s licenses. The Hutterian Brethren had benefitted from an exception to the requirement of having their pictures taken since 1974, on the grounds that their religious beliefs prohibited them from taking images of themselves. The Supreme Court of Canada decision was close (4 to 3), with the Chief Justice writing for the majority and finding that the Alberta regulation imposing the mandatory taking of a picture for a driver’s license was justified under section 1 of the Charter.
The majority decision endorsed the objective of a possible reduction in identity theft by ensuring the complete integrity of the facial recognition data bank created by the government. Although driver’s licenses came into existence to certify that a person was a competent driver, the majority considered that the driver’s license was now widely used for identification purposes. The majority of the Court found that any exception would undermine the government’s objective. The Hutterian Brethren had suggested that they could continue to have a non-photo driver’s license with a statement that it was not to be used for identification purpose. The Court considered that this was not an adequate alternative because it did not eliminate the possibility of wrongdoers impersonating one of the Hutterian Brethren. In general, the Court held that the expected salutary effects in terms of potential reduction of identity theft outweighed the negative impact on the Hutterian Brethren, as they could hire a driver or pay for commercial transport.
The minority opinions by Justice Abella and Justice Lebel (and Justice Fish) highlight the significant encroachment on the Hutterian Brethren’s way of life and religious culture. They also underscore the inability of the system to really diminish identity theft when more than 700,000 people do not have a driver’s license and are not part of the database system. Both suggest that that majority’s reasoning has the potential of weakening the Charter. Will that be the case? You can read the analysis of the decision and of its impact at www.ccla.org.
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Panhandlers deserve Charter protection/Les itinérants méritent la protection de la Charte
When it comes to dealing with poverty, governments are often at a loss for solutions. Earlier this year, US media reported on a New York City program which finances one-way plane tickets out of town for homeless families. In Canada, similar, albeit less sensational, efforts to deal with the homeless have included the enactment in Ontario (in 1999) and British Columbia (in 2004) of Safe Streets Acts, which broadly prohibit “aggressive” panhandling. More recently, academic and media reports out of Saskatchewan drew attention to Regina’s so-called “Tag Day” by-law, which was interpreted by the city as requiring that individuals apply for permits in order to panhandle. Under the by-law, those who are caught panhandling without permits are subject to a fine, and in the event of a failure to pay, potential imprisonment for up to 90 days. In response to these reports, the Canadian Civil Liberties Association wrote to Regina City Council pointing to the decision of the Ontario Court of Appeal in R. v. Banks, which characterized begging as freedom of expression. In addition to arguing that panhandling attracts Charter protection as a form of expression, CCLA also spotlighted the ineffectiveness of the penal approach to homelessness. In Montreal, for example, increased enforcement of offences such as public loitering has left thousands of poor people facing possible imprisonment for unpaid fines. CCLA advised the Council that while eliminating poverty is certainly no straightforward undertaking, ticketing destitute individuals for communicating the urgency of their situation represents an entirely inappropriate reaction to the problem. Click here for a copy of our letter.
Cet été, la ville de Régina a décidé de mettre en vigueur un règlement municipal un peu vétuste qui exigeait l’obtention d’un permis pour mendier dans les rues de la ville. La ville aussi étudiait la possibilité de prohiber complètement la sollicitation de donations. L’ACLC est intervenue pour souligner la fragilité constitutionnelle d’une telle approche. Les débats se poursuivront.
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Patricia Jackson wins Law Society Medal/ Félicitations à Me Patricia Jackson
Long-time CCLA board member and supporter Patricia Jackson has won the prestigious Law Society Medal, awarded by the Law Society of Upper Canada. Trisha Jackson is a senior trial and appellate counsel at Torys with a broad litigation practice. She has represented CCLA in numerous cases. Congratulations Trisha!
Me Jackson, membre du Conseil de direction de l’ACLC depuis plusieurs années et avocate bénévole pour l’Association a reçu la Médaille du Barreau du Haut Canada. Félicitations!
