March 2010 ebulletin

Dear ebulletin subscribers:

CCLA’s Annual General Meeting has been scheduled for June 15th, 2010 in Toronto.  If you are already a CCLA Member – save the date!  If you are not yet a CCLA Member – join us and have your say!!

Nathalie Des Rosiers

General Counsel

Random roadside breath tests: Do we want them? Do we need them?

For over three years there has been an ongoing parliamentary inquiry into issue of drunk driving, and how to best combat it.  After a committee report, and a government response, the federal government has now released a discussion paper asking for public comment on several proposed amendments to the Criminal Code.  We all agree that drunk driving is extremely serious and endangers the lives of innocent pedestrians and motorists.  Nevertheless, in our desire to curb drinking and driving, we should be mindful of undermining the rights of all citizens; several of the proposed amendments are of concern from a civil liberties perspective.  Specifically, the government would like to:

  • Institute random breath testing;
  • Place limits on the disclosure given an accused’s defence counsel; and
  • Eliminate or limit the right to counsel prior to an Approved Instrument test.

CCLA believes that we can combat drunk driving without unnecessarily giving up our individual Charter rights.  CCLA is planning to submit a brief to the government, which will seek to ensure that Charter rights to counsel are not unduly undermined, and that no additional coercive powers are granted to law enforcement unless the necessity for such additional powers has been demonstrated and proper accountability measures have been implemented.  In addition, CCLA will suggest that random breath testing, combined with the ability of police officers to stop a car anywhere anytime without any suspicion of wrongdoing, goes too far.

Tearing down asylums, and building prisons instead?

It is often said that one can judge a society by how it treats its weakest members.  In Canadian society, those suffering from mental illness form one of the most marginalized and vulnerable populations.  Increasingly, however, our society is choosing to deal with this population by throwing them in jail.  A recent Correctional Services Canada review panel noted that the number of male offenders with mental health problems increased by 71% between 1997 and 2006; during this same time period, the overall prison population actually decreased.  Even more shocking is that in the absence of adequate mental health resources and treatment options, corrections officials are increasingly turning to solitary confinement as a way of managing the mentally ill.

The Canadian Civil Liberties Association is deeply concerned about the lack of mental health resources within penitentiaries, the increasingly frequent resort to segregation, and the grossly inadequate oversight mechanisms available in such situations.  The impact of solitary confinement on the mentally ill can be particularly devastating.  The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has endorsed the recommendation that mentally ill prisoners should never be subject to solitary confinement. Courts in the United States have found that such treatment constitutes cruel and unusual punishment.  As these issues appear on the rise in our prisons, we need to acknowledge that solitary confinement is not a solution.

On March 15th, the CCLA joined with five other prominent Canadian organizations to call for immediate reform.  This is an issue that the Canadian government cannot continue to ignore, and the CCLA plans to continue such advocacy efforts on behalf of one of Canada’s most vulnerable populations.

Charting the road ahead: forecasts from the budget

On March 4, 2010 Finance Minister Jim Flaherty presented the 2010 Budget in the House of Commons.  In keeping with normal procedures, the budget will now be followed up with a series of motions and Bills to implement the proposed measures.

Contained in the Budget, and the Speech from the Throne delivered on March 3, 2010, are a number of issues that the CCLA will continue to monitor, including: more money for border and transport security; establishment of a new RCMP review organization; a National DNA Databank; and a host of law-and-order bills that will be revived from the last session of parliament.  Here are some of the details, and some of CCLA’s thoughts on these subjects:

  • Money has been committed to the Canadian Security and Intelligence Service (CSIS), Canada Border Services Agency (CBSA) and Transport Canada for what appear to be security related programs.  The CCLA supports measures to ensure the safety of Canadians, and will examine any security policy to ensure that there are no unnecessary infringements of citizens’ privacy or fundamental freedoms.
  • With respect to the Royal Canadian Mounted Policy (RCMP), $8 million has been allocated for the establishment of a new RCMP review organization, which is referred to by the government as a “civilian independent review and complaints commission.”  The CCLA welcomes an improved oversight body for the RCMP and will monitor further development on this subject.  To read more about the CCLA’s position on oversight of the RCMP, click here.
  • The government has dedicated $14 million to the National DNA Databank, and announced that it is considering privatizing the RCMP Forensic Laboratory Services.   The CCLA is concerned generally about the potential privacy implications of a DNA Databank and will be monitoring this issue closely.
  • The Speech from the Throne made it clear that the government is set to bring back numerous justice bills which died on the order paper when Parliament was prorogued last December. (To read what the CCLA had to say about this prorogation, click here).  It is anticipated that these bills will touch upon some issues that are of potential concern to the CCLA, such as minimum mandatory sentences and expanded investigatory powers. For more on the CCLA’s position on minimum mandatory sentences, click here or here. For more on the CCLA’s position on previously proposed changes to the sex offender registry, click here.  For the CCLA’s position on increased “cyber surveillance” powers, click here.

To access the government’s summary of the budget (“the Budget in Brief”), the full budget document, the budget speech and other resources, you can visit the government’s Budget 2010 website at www.budget.gc.ca/2010/home-accueil-eng.html.  Many news outlets and other organizations also have Budget 2010 pages, with analysis and highlights.   In addition, the text of the Speech from the Throne, which announced the government’s priorities for the 3rd session of the 40th Parliament, can be read in the transcripts of March 3rd, 2010.

Who Belongs? Rights, Benefits, Obligations and Immigration Status

The Canadian Civil Liberties Association is launching a research and advocacy project on the status of immigrant in Canadian society.  Immigration status – whether it be citizenship, permanent resident status, visitor status, temporary workers status, or “no status” – plays an important role in how rights, benefits and obligations are allocated.  Rules regarding voting rights, access to social services, employment and property ownership often make distinctions on the basis of immigration status. What are the consequences of such distinctions? Are they appropriate?

The CCLA plans to release a discussion paper on these issues during the summer, followed by a conference late September.  You can read the call for papers here – please join the discussion and send us your stories.

The aim of the project is to explore the consequences of the differential access to rights and benefits on the basis of immigration status.  Particularly, the following questions will be explored:  What is the current situation with respect to immigration status distinctions made in different sectors such as voting rights, employment, professional affiliations, membership on boards, investment rules and access to social services? How has the concept of citizenship evolved through the years and internationally? How does it relate to First Nations’ concepts of citizenship? How should we conceptualize distinctions on the basis of immigration status in light of mobility and equality rights? Is discrimination on the basis of immigration status a proxy for racial discrimination? What is the experience of Human Rights Commissions on this issue? How does the temporary foreign workers program operate within our immigration law framework? Is it compatible with the values that sustain it? What impact do current bilateral treaties on the recognition of education credentials have on the treatment of immigrants in Canada? What should be the government’s position with respect to illegal immigrants‘ access to health, education or other social services? Should we revisit the restrictions on the right to vote, on employment rules in civil service, on participation on management boards?

The origins of this project go back over twenty years: in Andrews v. Law Society of British Columbia the Supreme Court of Canada held that the Law Society of British Columbia’s requirement that its members be Canadian citizens violated the Charter’s equality provision and could not be saved “as a reasonable limit in a free and democratic society” under s.1 of the Charter.

Despite this promising step, the law surrounding citizenship requirements has not evolved as expected, and federal and provincial governments have not re-evaluated their use of citizenship requirements in the allocation of rights and benefits.   The issue of immigration status – whether it be permanent resident status, visitor status, temporary workers status, “no status” and so on – plays an enormous role in how rights, benefits and obligations are allocated in matters as diverse as voting rights, insurance coverage, property ownership and employment.  Yet immigration status is an issue, and a basis of discrimination, that has not been adequately studied or publicized.

This project, funded partly by the Maytree Foundation, will have many components.   The CCLA will take an in-depth look at how rights, benefits and obligations are allocated in federal and provincial legislation.   Drawing on resources across the country, the project will examine the evolution of the government’s understanding of citizenship, immigration status distinctions in the European Union and other jurisdictions, and citizenship requirements in different spheres.  The project will ultimately look at how citizenship requirements and distinctions on the basis of immigration status figure into the granting of voting rights, access to social services, employment and participation in the commercial world.

Academics from across the country have joined the project’s Academic Advisory Panel, and have been shaping the research questions and content of the project.  The CCLA is in the process of putting together a Community Advisory Panel composed of individuals from across Canada to assist in ensuring that the project addresses relevant issues, and to generate ideas for events and consultations.

If you would like more information or would like to participate, please contact Nathalie Des Rosiers, General Counsel at the CCLA, at ndesrosiers@ccla.org or (416) 363-0321 ext. 227.

The niqab is back in the news

The debate over reasonable accommodation resurfaced this month after a Quebec woman was expelled from her public French class because she refused to take off her niqab.  The matter is currently in front of the Quebec Human Rights Commission.   In addressing this and other similar cases, the CCLA urges Canadians to keep a few guiding principles in mind.

First, as components of our individual liberty, freedom of expression, and at times freedom of religion, we all have the right to choose what we want to wear, and what we do not want to wear.  This means that absent compelling reasons such as safety, it is wrong for a government to force women to wear a specific article of clothing.  This also means that, in general, it is wrong for a government to force a woman to remove a specific article of clothing.  As a basic principle, individual women should decide how they want to dress – not the government.

Second, our societal commitment to ‘reasonable accommodation’ of individuals’ distinct needs, beliefs, and cultures stems directly from our belief in equality.  In Canada we recognize that not all laws impact people the same way, and that a rule designed with the majority in mind may have serious and unintended consequences for a minority.  Where we can – within reason – accommodate the specific needs of the minority, our commitment to equality and inclusivity demands that we do so.

And finally, while all rights and freedoms have their limits, we must be able to offer concrete, objective reasons as to why we are justified in curtailing them in each specific circumstance.  There may be good reasons to prescribe the way individuals can dress in different situations.  Specific types of clothing, for example, may be reasonably required to ensure safety on a construction site, or hygiene in a hospital.  It may be that, under certain circumstances, a requirement to put on, or remove, clothing is objectively justifiable, and no compromise can be reached.  Before coming to that conclusion, however, we should be certain that infringing that person’s basic right is absolutely necessary.  Our basic rights are designed to protect every single one of us.  If we are prepared to defend our own rights, we must be prepared to defend everybody’s.

CCLET Launches Student Advocacy Webpage

Throughout the hundreds of civil liberties workshops CCLET has led over the years in schools and faculties of education, one consistent theme has emerged among the divergent student opinions on social justice issues: while students understand that they possess certain guaranteed rights, they often feel powerless to improve their circumstances when those rights have been violated.

In response, the CCLET has recently launched a new webpage designed to encourage students to become advocates for their own social causes.  By asking the question, “What’s Not Fair to You?”, the site provides students with a forum through which they can share their own personal stories of injustice and collectively brainstorm ideas on how to lawfully assert their rights and achieve the positive changes they seek.  For more information, visit: www.ccla.org/whatsnotfair.

March 2010 ebulletin

Dear ebulletin subscribers:

CCLA’s Annual General Meeting has been scheduled for June 15th, 2010 in Toronto.  If you are already a CCLA Member – save the date!  If you are not yet a CCLA Member – join us and have your say!!

Nathalie Des Rosiers

General Counsel

Random roadside breath tests: Do we want them? Do we need them?

For over three years there has been an ongoing parliamentary inquiry into issue of drunk driving, and how to best combat it.  After a committee report, and a government response, the federal government has now released a discussion paper asking for public comment on several proposed amendments to the Criminal Code.  We all agree that drunk driving is extremely serious and endangers the lives of innocent pedestrians and motorists.  Nevertheless, in our desire to curb drinking and driving, we should be mindful of undermining the rights of all citizens; several of the proposed amendments are of concern from a civil liberties perspective.  Specifically, the government would like to:

  • Institute random breath testing;
  • Place limits on the disclosure given an accused’s defence counsel; and
  • Eliminate or limit the right to counsel prior to an Approved Instrument test.

CCLA believes that we can combat drunk driving without unnecessarily giving up our individual Charter rights.  CCLA is planning to submit a brief to the government, which will seek to ensure that Charter rights to counsel are not unduly undermined, and that no additional coercive powers are granted to law enforcement unless the necessity for such additional powers has been demonstrated and proper accountability measures have been implemented.  In addition, CCLA will suggest that random breath testing, combined with the ability of police officers to stop a car anywhere anytime without any suspicion of wrongdoing, goes too far.

Tearing down asylums, and building prisons instead?

It is often said that one can judge a society by how it treats its weakest members.  In Canadian society, those suffering from mental illness form one of the most marginalized and vulnerable populations.  Increasingly, however, our society is choosing to deal with this population by throwing them in jail.  A recent Correctional Services Canada review panel noted that the number of male offenders with mental health problems increased by 71% between 1997 and 2006; during this same time period, the overall prison population actually decreased.  Even more shocking is that in the absence of adequate mental health resources and treatment options, corrections officials are increasingly turning to solitary confinement as a way of managing the mentally ill.

The Canadian Civil Liberties Association is deeply concerned about the lack of mental health resources within penitentiaries, the increasingly frequent resort to segregation, and the grossly inadequate oversight mechanisms available in such situations.  The impact of solitary confinement on the mentally ill can be particularly devastating.  The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has endorsed the recommendation that mentally ill prisoners should never be subject to solitary confinement. Courts in the United States have found that such treatment constitutes cruel and unusual punishment.  As these issues appear on the rise in our prisons, we need to acknowledge that solitary confinement is not a solution.

On March 15th, the CCLA joined with five other prominent Canadian organizations to call for immediate reform.  This is an issue that the Canadian government cannot continue to ignore, and the CCLA plans to continue such advocacy efforts on behalf of one of Canada’s most vulnerable populations.

Charting the road ahead: forecasts from the budget

On March 4, 2010 Finance Minister Jim Flaherty presented the 2010 Budget in the House of Commons.  In keeping with normal procedures, the budget will now be followed up with a series of motions and Bills to implement the proposed measures.

Contained in the Budget, and the Speech from the Throne delivered on March 3, 2010, are a number of issues that the CCLA will continue to monitor, including: more money for border and transport security; establishment of a new RCMP review organization; a National DNA Databank; and a host of law-and-order bills that will be revived from the last session of parliament.  Here are some of the details, and some of CCLA’s thoughts on these subjects:

  • Money has been committed to the Canadian Security and Intelligence Service (CSIS), Canada Border Services Agency (CBSA) and Transport Canada for what appear to be security related programs.  The CCLA supports measures to ensure the safety of Canadians, and will examine any security policy to ensure that there are no unnecessary infringements of citizens’ privacy or fundamental freedoms.
  • With respect to the Royal Canadian Mounted Policy (RCMP), $8 million has been allocated for the establishment of a new RCMP review organization, which is referred to by the government as a “civilian independent review and complaints commission.”  The CCLA welcomes an improved oversight body for the RCMP and will monitor further development on this subject.  To read more about the CCLA’s position on oversight of the RCMP, click here.
  • The government has dedicated $14 million to the National DNA Databank, and announced that it is considering privatizing the RCMP Forensic Laboratory Services.   The CCLA is concerned generally about the potential privacy implications of a DNA Databank and will be monitoring this issue closely.
  • The Speech from the Throne made it clear that the government is set to bring back numerous justice bills which died on the order paper when Parliament was prorogued last December. (To read what the CCLA had to say about this prorogation, click here).  It is anticipated that these bills will touch upon some issues that are of potential concern to the CCLA, such as minimum mandatory sentences and expanded investigatory powers. For more on the CCLA’s position on minimum mandatory sentences, click here or here. For more on the CCLA’s position on previously proposed changes to the sex offender registry, click here.  For the CCLA’s position on increased “cyber surveillance” powers, click here.

To access the government’s summary of the budget (“the Budget in Brief”), the full budget document, the budget speech and other resources, you can visit the government’s Budget 2010 website at www.budget.gc.ca/2010/home-accueil-eng.html.  Many news outlets and other organizations also have Budget 2010 pages, with analysis and highlights.   In addition, the text of the Speech from the Throne, which announced the government’s priorities for the 3rd session of the 40th Parliament, can be read in the transcripts of March 3rd, 2010.

Who Belongs? Rights, Benefits, Obligations and Immigration Status

The Canadian Civil Liberties Association is launching a research and advocacy project on the status of immigrant in Canadian society.  Immigration status – whether it be citizenship, permanent resident status, visitor status, temporary workers status, or “no status” – plays an important role in how rights, benefits and obligations are allocated.  Rules regarding voting rights, access to social services, employment and property ownership often make distinctions on the basis of immigration status. What are the consequences of such distinctions? Are they appropriate?

The CCLA plans to release a discussion paper on these issues during the summer, followed by a conference late September.  You can read the call for papers here – please join the discussion and send us your stories.

The aim of the project is to explore the consequences of the differential access to rights and benefits on the basis of immigration status.  Particularly, the following questions will be explored:  What is the current situation with respect to immigration status distinctions made in different sectors such as voting rights, employment, professional affiliations, membership on boards, investment rules and access to social services? How has the concept of citizenship evolved through the years and internationally? How does it relate to First Nations’ concepts of citizenship? How should we conceptualize distinctions on the basis of immigration status in light of mobility and equality rights? Is discrimination on the basis of immigration status a proxy for racial discrimination? What is the experience of Human Rights Commissions on this issue? How does the temporary foreign workers program operate within our immigration law framework? Is it compatible with the values that sustain it? What impact do current bilateral treaties on the recognition of education credentials have on the treatment of immigrants in Canada? What should be the government’s position with respect to illegal immigrants‘ access to health, education or other social services? Should we revisit the restrictions on the right to vote, on employment rules in civil service, on participation on management boards?

The origins of this project go back over twenty years: in Andrews v. Law Society of British Columbia the Supreme Court of Canada held that the Law Society of British Columbia’s requirement that its members be Canadian citizens violated the Charter’s equality provision and could not be saved “as a reasonable limit in a free and democratic society” under s.1 of the Charter.

Despite this promising step, the law surrounding citizenship requirements has not evolved as expected, and federal and provincial governments have not re-evaluated their use of citizenship requirements in the allocation of rights and benefits.   The issue of immigration status – whether it be permanent resident status, visitor status, temporary workers status, “no status” and so on – plays an enormous role in how rights, benefits and obligations are allocated in matters as diverse as voting rights, insurance coverage, property ownership and employment.  Yet immigration status is an issue, and a basis of discrimination, that has not been adequately studied or publicized.

This project, funded partly by the Maytree Foundation, will have many components.   The CCLA will take an in-depth look at how rights, benefits and obligations are allocated in federal and provincial legislation.   Drawing on resources across the country, the project will examine the evolution of the government’s understanding of citizenship, immigration status distinctions in the European Union and other jurisdictions, and citizenship requirements in different spheres.  The project will ultimately look at how citizenship requirements and distinctions on the basis of immigration status figure into the granting of voting rights, access to social services, employment and participation in the commercial world.

Academics from across the country have joined the project’s Academic Advisory Panel, and have been shaping the research questions and content of the project.  The CCLA is in the process of putting together a Community Advisory Panel composed of individuals from across Canada to assist in ensuring that the project addresses relevant issues, and to generate ideas for events and consultations.

If you would like more information or would like to participate, please contact Nathalie Des Rosiers, General Counsel at the CCLA, at ndesrosiers@ccla.org or (416) 363-0321 ext. 227.

The niqab is back in the news

The debate over reasonable accommodation resurfaced this month after a Quebec woman was expelled from her public French class because she refused to take off her niqab.  The matter is currently in front of the Quebec Human Rights Commission.   In addressing this and other similar cases, the CCLA urges Canadians to keep a few guiding principles in mind.

First, as components of our individual liberty, freedom of expression, and at times freedom of religion, we all have the right to choose what we want to wear, and what we do not want to wear.  This means that absent compelling reasons such as safety, it is wrong for a government to force women to wear a specific article of clothing.  This also means that, in general, it is wrong for a government to force a woman to remove a specific article of clothing.  As a basic principle, individual women should decide how they want to dress – not the government.

Second, our societal commitment to ‘reasonable accommodation’ of individuals’ distinct needs, beliefs, and cultures stems directly from our belief in equality.  In Canada we recognize that not all laws impact people the same way, and that a rule designed with the majority in mind may have serious and unintended consequences for a minority.  Where we can – within reason – accommodate the specific needs of the minority, our commitment to equality and inclusivity demands that we do so.

And finally, while all rights and freedoms have their limits, we must be able to offer concrete, objective reasons as to why we are justified in curtailing them in each specific circumstance.  There may be good reasons to prescribe the way individuals can dress in different situations.  Specific types of clothing, for example, may be reasonably required to ensure safety on a construction site, or hygiene in a hospital.  It may be that, under certain circumstances, a requirement to put on, or remove, clothing is objectively justifiable, and no compromise can be reached.  Before coming to that conclusion, however, we should be certain that infringing that person’s basic right is absolutely necessary.  Our basic rights are designed to protect every single one of us.  If we are prepared to defend our own rights, we must be prepared to defend everybody’s.

CCLET Launches Student Advocacy Webpage

Throughout the hundreds of civil liberties workshops CCLET has led over the years in schools and faculties of education, one consistent theme has emerged among the divergent student opinions on social justice issues: while students understand that they possess certain guaranteed rights, they often feel powerless to improve their circumstances when those rights have been violated.

In response, the CCLET has recently launched a new webpage designed to encourage students to become advocates for their own social causes.  By asking the question, “What’s Not Fair to You?”, the site provides students with a forum through which they can share their own personal stories of injustice and collectively brainstorm ideas on how to lawfully assert their rights and achieve the positive changes they seek.  For more information, visit: www.ccla.org/whatsnotfair.