March 2011 e-bulletin

In R. v. Caron, decided earlier this month, the Supreme Court of Canada addressed the authority of courts to order the government to pay the costs of a private party involved in public interest litigation.

Advance cost orders can play a significant role in improving access to justice, by compelling the government to pay the costs of a court case before it begins or during the process to ensure that non-government parties may raise public interest issues.

As an intervener in R. v. Caron, the CCLA had argued that courts should be permitted to make advance cost orders when the ordinary citizen would not have the means to access the justice system to address questions of exceptional public importance.

In its judgment, the Supreme Court agreed with the submissions of the CCLA and confirmed the availability of “advance costs orders” in both civil and quasi-criminal litigation. The Supreme Court held that courts should be permitted to make an advance cost order in exceptional cases when (1) the litigation would be unable to proceed if the order were not made; (2) the claim to be adjudicated appear meritorious; (3) the issues raised transcend the individual interest of the particular litigant, are of public importance, and have not been resolved in previous cases.

This judgement will positively impact the adjudication of complex issues of broad public interest that might otherwise be too cost to put before the courts.

CCLA thanks Joseph Arvay, Benjamin Berger, and Alison Latimer for the excellent representation they provided in this case.

The CCLA argues that Bill C17 weakens our democratic traditions, poses real threats of arbitrary interference with liberty, undermines our commitment to habeas corpus, and provides no safeguards that evidence obtained from third states was not procured by torture.

It is also unclear how effective Bill C17 would be in assisting law enforcement to protect Canadians. Compelling witnesses to testify does not necessarily produce the truth; there are no guarantees that the testimony will not be used against the witness in a third country; and the hearing process itself may tip off perpetrators that an investigation is underway.

Further, conditions such as house arrest, prohibition of internet access and preventative detention would impede the objectives of effective counter-terror laws – namely, lawful surveillance, evidence gathering, prosecution, and punishment. A January 2011 UK Government Review of Anti-terrorism legislation found that control orders and preventative detention can impede surveillance and prosecution.

CCLA General Counsel Nathalie Des Rosiers pointed out to the Committee that Canada has a duty to set an international example in counter-terror initiatives, by upholding the due process protections contained in the Canadian Charter of Rights and Freedoms and in international law.

We will keep you posted on the progress of Bill C17.

The release will take place at a news conference on Monday, February 28, 2011, at 11:00 am on Parliament Hill in Ottawa. Members of Parliament and individuals who had their civil liberties violated by police during the G20 Summit will be joining the CCLA and NUPGE at the news conference.

The Breach of the Peace public hearings were organized by the CCLA and NUPGE to examine police activity during the G20 Summit. More than 60 speakers attended the three days of hearings to speak about their experiences during the G20. Peaceful protestors, journalists, innocent bystanders and others told numerous stories of police violence, threats, mistreatment and unlawful detainment. The main objectives of the hearings were to increase public awareness over the serious violation of constitutional rights of Canadians during the G20 Summit and hold all levels of government accountable.

In addition to documenting some of the negative experiences that members of the public had with police during the 2010 G20 Summit in Toronto, the Breach of the Peace report also makes eight recommendations, including the establishment of a joint federal-provincial public inquiry, that would help ensure such a large scale violation of civil liberties does not happen again at future similar events.

To further this objective, the CCLA and NUPGE will also be asking their members to write to the Prime Minister of Canada and Premier of Ontario to urge them to call a joint federal-provincial public inquiry into G20 policing. Watch the CCLA’s website for a “call to action” letter that you can send to the Prime Minister and Premier under your name.

Four key areas will be pursued:  (1) addressing threats early, (2) economic growth and jobs, (3) integrated cross-border law enforcement, and (4) critical infrastructure and cyber-security.  Prime Minister Harper stated that “shared information, joint planning, compatible procedures and inspection technology will all be key tools”. Economic gains are supposed to be realized by removing regulatory barriers, harmonizing rules and reducing border congestion for manufacturers.

From a civil liberties perspective, details of integrated border security and integrated law enforcement will be crucial.

How will accountability be ensured and will there be a neutral dispute resolution process for the two countries?  In the event of conflict, will a US model of security, screening, and decision-making predominate? What recourse mechanisms and due process will exist for individuals who believe they are mistakenly targeted or prevented from travel? What legal privacy safeguards will exist around the use of national security intelligence? Although increased information sharing is on-going, , serious mistakes have been made and have led to several recommendations from  three different Commissions of Inquiry — conducted respectively by Justices O’Connor, Iacobucci and Major – which have not been completely implemented.

A security perimeter must be designed in a way that ensures due process of all Canadians. We await greater details on the proposal.