Dear friends of CCLA,
September was a busy and productive month for us. The “Who Belongs?” conference on immigration – which brought over 40 experts and practitioners together to discuss the rights, benefits and obligations related to immigration status – just concluded this past weekend. If you were unable to attend, don’t worry: we filmed the entire conference, and we’ll make the video content available soon.
 Alan Broadbent welcoming participants at "Who Belongs?" |
The G20 continues to be a major issue we are working on, as you’ll see from the update below. In the mean time, we also continue to monitor a broad range of civil liberties issues, from prohibitions related to campaigning in Ontario municipal elections, to the seizure of electronic devices at the border.
This past Tuesday, I had the honor of presenting some awards during the Lexpert Zenith Awards 2010 Gala Dinner. On behalf of all of us at CCLA, I extend my warmest congratulations to the many law firms who partner with us on key civil liberties cases who were honored during this event.
Thank you for support,
Nathalie Des Rosiers
General Counsel
In this issue:
- RightsWatch conference 2010
- Congratulations to 2010 Lexpert Zenith Award Winners
- G20 policing accountability update
- CCLA seeks to protect freedom of speech at election time
- U.S. search & seizure of travellers’ electronic devices
RightsWatch conference 2010
The Canadian Civil Liberties Association is proud to host our second annual RightsWatch Conference in Toronto, Ontario.
RightsWatch will bring together 70 leading law students, articling students and young lawyers from across the country for an intimate conference on civil liberties issues. The event also offers new members of the profession a chance to engage informally with leading jurists and senior members of the Bar, who will be serving as conference speakers.
This conference is primarily geared towards the Pro Bono Students Canada law students who will be contributing to our RightsWatch blog during the school year. Through this event, we offer our PBSC bloggers civil liberties and monitoring training and advice, as well as the opportunity to learn from some top legal minds in Canada.
It was a big success last year – this year, we are opening up the conference to CCLA members and the general public.
The RightsWatch Conference will take place on October 15-16, 2010 at Campbell House Museum and at the Osgoode Hall Professional Development Centre, both in downtown Toronto. This year’s panel discussions include:
Rights of Canadians Detained Abroad: Positive obligations and the extra-territorial application of the Charter
Constitutional Damages and the Future of Charter Litigation: The Implications of the SCC decision in Ward v. Vancouver, 2010 SCC 27
Losing Faith in the Justice System? N.S. v. R. et al., 2010 ONCA __ and a woman’s right to wear a niqab in criminal proceedings
Safe Injection Sites and the Future of Section 7 Charter Protections: PHS Community Services Society v. Canada, 2010 BCCA 15, drug policy and a constitutional right to health.
We hope you will able to join us for this exciting event. If you have any questions or concerns, please feel free to contact us by email at rightswatch@ccla.org, by fax at 416 861-1291 or by telephone at 416 363-0321.
Congratulations to 2010 Lexpert Zenith Award Winners
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Award Category: Change Agent: Religion
Project: Canadian Civil Liberties Association – Multani
Winner (firm): Osler, Hoskin & Harcourt LLP
Winner (individual): Mahmud Jamal
Award Category: Civil Liberties
Project: Canadian Civil Liberties Association – Defamation
Winner (firm): Torys LLP
Winner (individuals): Patricia Jackson, Andrew Bernstein, Jennifer Conroy
Award Category: Civil Liberties
Project: Canadian Civil Liberties Association – Significant Interventions
Winner (firm): McCarthy Tétrault LLP
Winner (individuals): Jonathan C. Lisus, Christopher A. Wayland, Alexi N. Wood, Sarah Corman
G20 Policing Accountability Update
Persistent questions remain about the policing dispensed during this summer’s G20 Summit in Toronto. In the wake of the Summit, the CCLA has asked for greater transparency and accountability around G20 policing and continues to believe that an independent federal inquiry is the best mechanism to address this need.
While the federal government has not budged on this issue, other public bodies have been called to look into the matter. The Ontario government recently announced that it has launched an independent review of the Public Works Protection Act (PWPA), which will be led by former Ontario Court of Appeal Chief Justice Roy McMurtry. Quietly made designation pursuant to the legislation provoked significant controversy in the lead up to the G20 when it came to light that such designation gave police greater search and seizure powers. According to the government, key areas that will be considered in the review include:
- Requirements for public notice of regulations made under the act.
- The application of the act to large-scale events such as national or international conferences, major sporting events and public demonstrations
- The definition of a public work under the legislation
- The scope of authority given to police to protect a public work.
Mr. McMurtry’s report to the government is expected in the Spring of 2011.
Ontario’s Office of the Independent Police Review Director (OIPRD) has also announced that it is conducting a “systemic review” of G20 policing. While specific details about this process are yet to emerge, it is clear that the OIPRD does not have the legislative jurisdiction to probe many aspects of G20 security.
In Toronto, where the G20 was held, the city’s Police Service’s Board has agreed to an Independent Civilian Review of the Toronto Police Service’s role in policing the G20, which will be led by former Ontario Court of Appeal Justice John Morden. The Terms of Reference for the review were recently signed off on by the Board, which will give Mr. Morden broad discretion to probe many aspects of what happened during the G20 weekend, including the use of force, arrest and search powers.
While this Review will make an important contribution to post-G20 police accountability, because of the Toronto Police Services Board’s (TPSB) narrow jurisdiction, it will be limited to examining the actions of Toronto police and will not be well-positioned to consider the role of other police and security personnel, including the RCMP and CSIS, and federal and provincial decision makers.
While the CCLA is hopeful that the reviews will make valuable contributions to post-G20 police accountability, we continue to believe that a broader federal independent inquiry is necessary to probe all aspects of policing and security actions during the G20.
The CCLA is also increasingly concerned that police records generated about the many G20 arrestees who were never charged or whose charges have since been dropped may expose these people to long-lasting negative repercussions. To address this concern, the CCLA recently wrote to Toronto Police Chief Bill Blair asking him to expunge the police records of all G20 arrestees who were never charged or have since had their charges withdrawn or dismissed.
The CCLA is particularly concerned that information about G20-related police contact may surface during police background checks that are regularly requested by some employers and volunteer agencies and unduly prejudice people who have done nothing wrong. In the context of the G20 Summit, more than 1100 people were arrested – including five of the CCLA’s independent monitors – and over 800 of them were never charged with an offence. Of the close to 300 people that were charged, at least 58 have since had their charges withdrawn.
CCLA seeks to protect freedom of speech at election time
With the Ontario municipal elections looming, campaign activities are in full swing. The CCLA has been contacted by a number of registered candidates in Toronto, Oshawa and Arnprior about municipal policies that restrict – and sometimes outright prohibit – campaign activities on municipality-owned property. In one instance, a candidate was prohibited from distributing leaflets in a city park. In another case, a candidate was informed by town officials that he was not allowed to campaign outside of facilities owned by the municipality, including the town hall and public library.
The CCLA is concerned that these policies unduly restrict freedom of expression and prohibit legitimate political speech which lies at the core of the Charter’s protections. In light of these concerns, the CCLA has sent letters to relevant officials in Toronto, Oshawa and Arnprior as well as to the Association of Municipalities of Ontario, asking that these campaign policies be amended. We have received varied responses from the municipalities contacted but have been advised by each municipality that these policies are rooted in Ontario’s Municipal Elections Act. The Actprohibits a municipality from making a contribution – in the form of money, goods or services – to candidates. Some municipalities have interpreted this prohibition broadly and take the position that use of property owned by the municipality for campaigning purposes constitutes an “in kind” contribution to a campaign and is not permitted.
While the CCLA understands the need for municipalities to remain fair and impartial in local elections, it is our opinion that interpreting these campaign contribution provisions as prohibiting campaign activities on many, if not all, municipality-owned properties (as some municipalities appear to have done), goes against the spirit and intent of the legislation and violates freedom of expression protected under s. 2(b) of the Canadian Charter of Rights and Freedoms. This is particularly true if municipal property such as city parks, public squares, meeting rooms at local libraries, etc. are made available to all candidates on an equitable basis. There is a pressing need to ensure that public places are open for public debate and discussion, particularly at election time when campaign activities help to provide voters with information that will assist them in making their decisions at the polls.
The CCLA will continue to monitor these policy developments and work to ensure that campaign contribution laws across Canada do not unduly restrict the candidates’ right to freedom of expression.
U.S. search & seizure of travellers’ electronic devices
A US Department of Homeland Security (DHS) policy allows border agents to search, copy, and seize electronic devices of travelers, without a reasonable suspicion. Items most regularly searched include cell phones, laptops and digital cameras.
The American Civil Liberties Union (ACLU) filed a lawsuit on September 6th, 2010, challenging this DHS policy as being an unconstitutional infringement of the right to privacy, and argues the US government must have a ‘reasonable suspicion’ before interfering with travellers’ privacy rights.
This DHS policy also affects Canadian citizens, who in the last two years, have accounted for almost one-third of the 6500 travellers whose electronic devices were searched or seized by US border officials. The CCLA will provide a Canadian perspective to the ACLU, with respect to the search and seizure policies of the Canadian Border Services Agency. In Canada, the right to be free from unreasonable search and seizure, of which the right to privacy is considered a component, is guaranteed by section 8 of the Charter of Rights and Freedoms.
The ACLU case is filed on behalf of Pascal Abidor, the National Association of Criminal Defence Lawyers (who must protect the confidentiality of client information), and the National Press Photographers Association (who must protect the confidentiality of source information).
In May 2010 Pascal Abidor, a 26 year-old McGill University student was taking a train from Montreal to New York to visit his mother. Mr. Abidor is a dual US-French citizen who is pursuing his PhD in Islamic Studies. As the train entered the US, American border guards searched his belongings, including his laptop. Discovering material on his laptop relating to militant Islamic groups — notwithstanding his response that it pertained to his PhD research on the history of modern Shiites in Lebanon –US border guards detained him using handcuffs, interrogated him, and seized his laptop for 11 days. When his laptop was returned to him, Mr. Abidor could tell that his personal files including emails with his girlfriend and his tax returns, had all been searched.
