In Focus

rightswatchbuttonagain

Program Areas Education

Fundamental Freedoms

Public Safety

National Security

Equality
«  
  »

October 2010 ebulletin

October 26th, 2010

Dear friends of the CCLA,

This month, we mark the 40th anniversary of the October Crisis and the proclamation of the War Measures Act. This episode remains Canada’s most serious constitutional crisis, and CCLA is keeping the memory of this watershed moment alive through this two-part, 20 minute interview with our former general counsel, A. Alan Borovoy. If you have not yet seen the interview, you may view it on our YouTube channel, or simply by clicking below.

Part 1

Part 2












CCLA hosted a successful RightsWatch, for the second year. You can read more about it here – make sure you visit Prism Magazine’s website, where videos of the conference are available for viewing. We continue to be engaged in many efforts to help bring about accountability for incidents and violations of constitutional liberties related to the G20 summit this past June.


As usual, we welcome your comments and feedback. Thank you for your support,

Nathalie Des Rosiers

General Counsel

In this issue:

RightsWatch 2010 – Toronto, October 15 & 16

The CCLA successfully held its second annual CCLA Rights Watch Conference on October 15th-16th 2010, in Toronto.


Maher Arar speaking at Rights Watch 2010Pro Bono Law Students from across Canada, as well as members of the public, attended the conference, where they heard from some of the leading lawyers and academics addressing Canada’s most pressing civil liberties issues.The Conference began with a Welcome Reception at the historic Campbell House Museum, where Joanna Birenbaum, Executive Director of the Women’s Legal Education and Action Fund (LEAF) gave a thought-provoking and riveting keynote speech.

Justice Stephen Goudge of the Ontario Court of Appeal opened the discussions on Saturday morning by addressing the issue of professional ethics. Speakers from Toronto and across Canada led panel sessions on the Rights of Canadians Detained Abroad; Damages for the Violation of Charter Rights and the future of Constitutional Litigation; the Debate over a Woman’s Right to Wear a Niqab when Testifying and the recent Ontario Court of Appeal Decision on N.S. v R et al; and the issue of Safe Injection Sites and the Future of Section 7 Charter Protections.   A special session for Pro Bono Students on the Rights Watch Blog was led by Cara Zwibel of CCLA and Ryder Gilliland of Blake, Cassels & Graydon.

For a complete agenda of the Conference and list of speakers, click here.

The response of students, attendees and speakers at the Conference was overwhelmingly positive. Prism Magazine and Maher Arar arranged for a live-stream broadcast of the conference, which can be viewed by clicking here.

A Minimalist Right To A Lawyer

During the course of a five hour police interrogation, Trent Sinclair asked five times to speak to a lawyer. Each time the police ignored his request and proceeded with the interrogation, claiming that a three minute consultation he had with a lawyer at the beginning of the interrogation was all that his constitutional right to counsel entitled him to. This position was subsequently challenged by Mr. Sinclair, who argued that he should have been provided with additional opportunities to seek legal advice throughout the interview process.

In a long-awaited decision, the Supreme Court of Canada ruled that accused persons have neither the right to have a lawyer present when being interrogated by the police, nor the right to seek legal advice throughout the interview. The close majority of 5 – 4, suggested that an initial warning and a reasonable opportunity to consult at the beginning of the interview will, in most cases, be sufficient. The majority did leave open the possibility that police may have an obligation to offer additional access to counsel under certain circumstances; however, these circumstances will likely only arise in a limited number of cases. In reaching this conclusion the majority held that the balance between the public interest in the investigation of crimes and the right to a lawyer, should generally tip in favour of the former.

The CCLA intervened in this case and is disappointed by the result. In the CCLA’s point of view, the right to a lawyer must be understood in the context of preventing miscarriages of justice and the conviction of innocent people, an objective which is inherent to the public investigation of crime: convicting an innocent is preventing the successful completion of a police investigation and certainly is not in the public interest. The right to counsel in Canada is now one of the most minimalist in the Western World. The Canadian version of the right provides less protection than in England, New Zealand, some Australian states and certainly the United States.

SLAAP Lawsuits On The Rise

In August of this year, the CCLA made submissions to the Attorney General’s Advisory Panel on Anti-SLAPPs.  This panel is considering the issue of how to prevent strategic litigation against public participation (also known as SLAPPs).  SLAPPs are lawsuits started against individuals or groups who speak out or take a position on an issue of public interest.  As the Advisory Panel’s website states: “The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism.”

In our submissions, the CCLA argued in favour of robust anti-SLAPP legislation and made proposals to ensure that, if such legislation is passed, it is effective.  In particular, the CCLA proposed the creation of an independent public agency to assist SLAPP defendants and insure that fundamental freedoms are not stifled by strategic litigation.

Over the years, the CCLA has intervened in a number of SLAPP cases to try to ensure that civil lawsuits are not used as tools to curb debate and discussion on matters of public importance.  Recently, the CCLA has learned of a number of lawsuits that appear to do just that.  One is a lawsuit started by the Mayor of the Town of Aurora against a number of individuals who posted to a local blog and criticized her leadership.

The Mayor is seeking over $6 million in damages and will also be asking the Court for orders disclosing the identities of individuals who posted to the blog anonymously. The lawsuit is being funded by the town’s Council.  Perhaps the most well-known recent SLAPP case is the claim for defamation started by Toronto police officer Adam Josephs, also known as “Officer Bubbles”.  Josephs was captured on video telling a young woman during the G20 that he would arrest her if she didn’t stop blowing bubbles.

The video went viral and spawned a series of animated cartoons depicting “Officer Bubbles” engaged in a variety of abusive police behaviour.  Several people also commented on the videos on YouTube, calling the officer names and harshly criticizing the way in which he performs his duties.  Officer Josephs has now launched a lawsuit, seeking over $1 million from YouTube and several of the anonymous posters who posted the cartoons and commented on them.  The CCLA is particularly concerned about this lawsuit because it compounds the limits on free expression that were experienced by peaceful protestors during the G20 and may result in silencing individuals who have legitimate concerns about G20 policing.  The CCLA is urging Officer Josephs to drop his lawsuit.