April 2011 E-bulletin

Welcome to this April edition of the Ebulletin, we welcome your feedback and comments.  Please visit the special section of our Website dedicated to the civil liberties issues that should be raised during the federal election campaign. Feel free to ask these questions to your candidates!

Nathalie Des Rosiers

The International Air Transport Association (IATA), is calling for “tiered airline security”.  Rather than screening all passengers the same way at checkpoints , the “tiered” system would partially screen passengers in advance and categorize them as “Trusted”, “Regular” or “Risky”.   A passenger’s “classification” determines what level of screening she or he will go through at an airport  — i.e. fast, normal, or enhanced screening.  Reportedly, the IATA’s “tiered airline security” proposal also has the support of the UN International Civil Aviation Organization, and the United States.

The CCLA understands the need to strengthen airline security, and to make the process more efficient.  However, any  proposed tiered system must consider the serious civil liberties implications.    An individual who is wrongly categorized into “Risky” should have enforceable redress methods to get their name off the list.  Even people who are categorized as “Regular” may suffer negative implications.  A social hierarchy may emerge in which individuals labeled as “Trusted” suddenly enjoy benefits – not just when it comes to flying, but also more broadly (enhanced employment opportunities for example) – that are withheld from individuals deemed “Regular” or “Risky”.

Furthermore, how this categorization process will take place is also at issue. The CCLA has serious concerns about the methodologies – including computer assisted programs — that may be applied to categorize individuals.

We believe that legal safeguards must exist:

• to protect the privacy of individuals
• to ensure that personal information is properly procured and assessed
• to protect against racial profiling,
• to protect against negative profiling of anyone who is not “Trusted”, and
• to ensure fairness and due process.

We will continue to monitor any developments and to keep you posted.

To work out these important details, each country has appointed federal government representatives to a Beyond Border Working Group (referred to as the “BBWG”).  The BBWG is to consider all aspects of the Security Perimeter; consult with the public, the private sector, and all levels of governments; and eventually prepare an Action Plan.  The BBWG reports annually to the Prime Minister and President, and its mandate will be reviewed after three years.

Specifically, the BBWG will focus on (i) early risk assessments of persons and goods; (ii) integrated cross-border law enforcement; (iii) trade facilitation, economic growth and jobs; and (iv) critical infrastructure and cyber-security.   The BBWG has called for submissions from the public – on its Canadian webpage the BBWG asks the question “How would you suggest Canada and the United States work together to maximize ability to pursue national security?”

The CCLA will provide written submissions to the BBWG in April 2011.  CCLA’s mandate is to ensure the Canadian Constitution is upheld and civil liberties are protected.  We are particularly concerned that privacy and due process rights of individuals be protected and that enforceable redress mechanisms be in place for people who are treated unfairly.  The CCLA is also concerned about the oversight and monitoring mechanisms that should be in place to ensure accountability.

We will keep you posted, and will make our written submission available on our website.

This sentence, which is set out in s. 95(2) of the Code, applies when the Crown proceeds by way of indictment – which is common in more serious cases. In contrast, when the Crown treats a violation of this section of the Code as a summary conviction offence – which is common in less serious cases – the longest a person’s sentence can be is one year. This means that a judge that convicts a person of violating s. 95(2) of the Code cannot give of a sentence of between one and three years, even if he or she thinks that this would be the most appropriate sentence for the crime.

While the CCLA appreciates the seriousness of gun crime, it has long opposed the use of mandatory minimum sentences for several reasons.

First, by imposing an inflexible restriction on judicial discretion, mandatory minimum sentences create a significant risk that, in a particular set of circumstances, an excessive punishment could be imposed. Simply put, mandatory minimum sentences are not capable of anticipating and responding to the range of situations that human reality creates. By predetermining the punishment for a particular act or omission, they fail to account for unforeseen factors that might render a particular sentence inappropriate or even excessive.

Second, mandatory minimums are not an effective tool for fighting crime. Surveys conducted among members of the public – and even among prison inmates – have revealed widespread unfamiliarity with minimum sentencing provisions. It’s hard to imagine how a minimum sentence could have a deterrent impact when its very existence is unknown.

Finally, there is also reason to believe that mandatory minimum sentences can create distortions and undermine the administration of justice. Indeed, some observers have noted that prosecutors and police may opt against charging people with offences that would automatically lead to a prison term, as they may see that sentence as too harsh under the circumstances. This transfers discretion away from judges and into the hands of prosecutors and police, at times, distorting the transparency, rationality and effectiveness of the administration of justice.

Minimum sentences are dangerous, inefficient and unfair. The CCLA will continue to fight back against this inflexible approach to sentencing and is hopeful that the Nur case will be a step forward in this battle.

This issue has arisen in the Halton and the Peel Catholic District School Boards, and apparently is a concern for other students across Canada where school officials have not permitted the students to form gay-positive clubs.  In Halton, a policy which explicitly banned GSAs was rescinded following public pressure and criticism.  CCLA is providing information to students and helping them through its website and social networking sites.

While in most schools, there is no written ban against students forming GSAs or other gay positive clubs, there may exist an unwritten ban.  Sometimes this comes in the form of requiring students to join, instead, an all-purpose “equality” group.

CCLA has taken the position that this is inadequate – gay-positive groups and Gay Straight Alliances serve functions that general “equality” groups cannot and students are entitled to choose the name of their clubs.  In GSAs, LGBT youth can come together in a safe space with others who have been bullied because of people’s assumptions about their sexuality, and with heterosexual supporters, and they can discuss issues, challenges and questions particular to them.

GSAs can provide a comfortable atmosphere both for social interaction and for political action on this topic, such as educating the school community about homophobia and how it affects everyone.   Schools with explicitly gay-positive clubs send an affirmative messages of inclusion and equality, along with the implicit understanding that bullying, homophobia and intolerance will not be tolerated.

Throughout its campaign, CCLA has emphasized the basic rights and freedoms of young people, including freedom of association, freedom of expression, and equality.  The presence of an “equality” group in a school does not affect the rights of students to form groups of their choosing and express who they are, as required by our Canadian Charter.

While it is important to have legal safeguards in place to protect personal reputation, the CCLA believes the law of defamation often presents significant threats to freedom of expression and may result in people curbing their comments out of fear of a lawsuit.  The Supreme Court of Canada’s recent defamation cases have increasingly recognized this concern and attempted to mediate it.

In addition to trying to ensure that the law of defamation itself protects free speech on matters of public importance, the CCLA has also recently intervened in a case so that the procedures in place in a defamation action don’t undercut the significant strides that have been made to date.

On Friday, March 25, 2011, the CCLA intervened in Les editions Ecosociété Inc, et al. v. Banro Corporation, at the Supreme Court of Canada.  This case arises out of the publication of a book called Noir Canada -  Pillage, corruption et criminalité en Afrique, by some University professors and a small publishing house in Québec.  The book comments on the activities of Canadian multinational corporations in Africa and, in some cases, alleges wrongdoing.

One of the corporations, Banro, based in Ontario, is suing the authors and publishers, and has brought its lawsuit in Ontario even though the book was published in Québec, is written in French, and has had extremely limited publication in Ontario.  The choice to sue in Ontario may be based in part on the existence of anti-SLAPP legislation in Québec.  This legislation allows defamation defendants (in this case, the authors and publisher) to ask the courts to dispose of cases quickly in their favour when a lawsuit is simply a strategic attempt to shut down public discourse or participation on a topic of public interest (SLAPP is short for strategic lawsuit against public participation).

The CCLA intervened in this case to make submissions about the rules that should be in place when deciding which jurisdiction should hear a defamation case.  In order to provide the most protection for freedom of expression, the CCLA argued that the defendant’s place of residence should be the presumptive forum.  The Supreme Court has reserved its decision.