November 2011 e-bulletin

This is membership recruitment time for CCLA.  Because we do not get any funding from government, we rely on our members to carry on the work.  If you are not a member and can help us, you can do so here.  If you can reach out to others so that they become members or supporters of CCLA, it would help us tremendously.

CCLA does good work and gets results.

Last month, CCLA was instrumental in ensuring that tweeting and hyperlinking do not become dangerous and costly activities for Canadians.  We were successful at the Supreme Court of Canada in a case that ensured that liability would not attach to hyperlinking or tweeting.  Read more about this case – Crookes v. Newton – below. Freedom of expression is vital for our modern and technological democracy, we need to protect it.

We also completed an extensive review of the federal omnibus crime bill - more on this below. Last week, we held our annual conference in Calgary, RightsWatch. You can visit the conference web page to view photos and download panelist presentations. I encourage you to read and comment on our RightsWatch blog, which has just begun a new year with 41 law student bloggers from all of Canada’s faculties of law.

Please maintain your membership with CCLA and help us pursue our work.

Nathalie

In this issue

Crookes v. Newton: A Victory for Freedom of Speech on the Internet

CCLA recently intervened in an important Internet case, Crookes v. Newton, that dealt with the interesting issue of defamation in the Internet age. In the Crookes case, the Supreme Court had to consider whether creating a hyperlink on one website, linked to potentially defamatory content on another site, constituted publication. In order to sue for defamation, one has to prove that the defamatory comments were “published”. The case raised particularly important issues because so much of defamation law was developed centuries ago, before today’s technologies could even be imagined. CCLA intervened in the case and urged the Court to find that hyperlinks alone did not constitute publication. CCLA was concerned that if a simple hyperlink could give rise to liability, speech on the Internet would be chilled, people would be reluctant to link to other sources, and the interconnected nature of content and communications on the Internet would be seriously undermined.

>> Read more about CCLA’s intervention in the Crookes v. Newton case, including our factum

The CCLA’s position on this issue prevailed with the Supreme Court, which recognized the importance of freedom of expression and the steps that need to be taken to protect it in the Internet age. The majority of the Court, in a decision written by Justice Abella, held that a hyperlink, by itself, does not count as publication. Three other judges of the Court agreed with the result reached by the majority but would have taken different approaches that looked more closely at the context of the links. The Court recognized that hyperlinks fulfill a valuable function and were obviously concerned that a different result would hinder the free-wheeling debate that is the hallmark of the Internet.

The Court’s interpretation is in line with their acknowledgement in a variety of recent cases that defamation is not only about protecting individual reputation, but also concerned with the public’s freedom of expression. The CCLA thanks Wendy Matheson and Andrew Bernstein of Torys LLP who represented the CCLA before the Supreme Court of Canada in this case.

Omnibus Crime Bill: We Need Your Voice!

CCLA has been busy over the last month speaking out against the omnibus crime bill and the devastating impact it will have on the criminal justice system and already marginalized Canadians.  We need you to add your voice.  The direction this bill sets out for the Canadian criminal justice system – jail more often, for longer, with more lasting consequences – is a dangerous route that is unsupported by the evidence and has already failed in other countries.  It also introduces a host of changes to other legislation, and would negatively impact Canadians detained abroad and vulnerable foreign workers.

>> Read our submissions to Parliament here

The bill is unjust.  It would implement mandatory minimum jail time for a wide variety of non-violent activity.  Growing as few as six marihuana plants could land you in jail for six months – and the mandatory sentence is increased to nine months if you rent your apartment.  Teenagers who send racy pictures of themselves expose their boyfriends or girlfriends to possession of child pornography charges and, if the partner is 18, at least three months in jail.

The bill is also unwise.  We already know that marginalized communities – those with mental health needs and Aboriginal peoples – are already overrepresented in and underserved by our correctional institutions.  In these circumstances, introducing measures th

at will increase the prison population – without addressing the problem of overrepresentation and with a disproportionate impact on these communities – is unconscionable.  Putting more people into an already failing system will do nothing to make our communities safer.  Changes to other pieces of legislation would penalize already vulnerable foreign workers for the abusive actions of Canadian employers, and make it harder for Canadians detained abroad to access Canadian programs that could aid in their rehabilitation and reintegration.

CCLA believes many of these changes are unconstitutional.  We are doing our best to convince the government to make specific amendments that will hopefully mitigate the most devastating consequences of the Bill – for example by eliminating some of the broadest mandatory minimum sentences and introducing some sentencing flexibility for marginalized communities. We will continue to fight these provisions in court if they become law.  The goal right now, however, is to make sure that our elected representatives know that Canadians are paying attention and demanding better, more effective, and constitutional policies.  We urge you to make your voice heard.  Please read our Submissions and visit the special section of our website dedicated to Bill C-10 to learn more and take action.

Supreme Court of Canada Keeps Open Safe Injection Site

CCLA welcomes the unanimous decision of the Supreme Court of Canada in Canada (Attorney General) v. PHS Community Services Society (2011 SCC 44) which ordered that Insite, a safe injection health service in Vancouver’s poorest neighbourhood, be allowed to remain open.  CCLA had intervened in the case and, along with numerous organizations and public agencies, had made many of the points ultimately established by the court.

The court based its decision on the established fact that Insite services save lives and significantly reduce the incidence of diseases such as AIDS or Hepatitis C, while there was little or no evidence to suggest that Insite’s operation had resulted in negative effects (such as increased drug usage or higher crime rates).

The court’s decision recognized that the people who used Insite were not engaged in recreational drug use, but rather were addicted and that addiction is an illness.  The court also described the harsh living conditions and circumstances of the impoverished, unwell, disabled and marginalized individuals living in Vancouver’s downtown East Side (“DTES”).   In the words of the court, for many in this population, “[e]xistence is bleak.”

The case had commenced when the federal government declined to renew Insite’s exemption from the Controlled Drugs and Substances Act.  Without this exemption, staff and users of the clinic were under threat of criminal prosecution for, respectively, providing services, and making injections at the clinic under medical supervision.  When Insite was originally created by all three levels of government as a response to the public health crisis in the DTES, such an exemption had been given by the Federal Minister.

In its decision, the Supreme Court found that ministerial discretion cannot be exercised to violate the Charter, and that the Minister’s denial of such an exemption was a breach of the Charter’s section 7 (the right not ot be deprived of life, liberty and security of the person except in accordance with principles of fundamental justice).  The court ordered the Minister to grant this exemption.

CCLA welcomes this decision as a victory.  By keeping the clinic open, it will protect the life, health and liberty of Insite’s clients.  It recognizes and vindicates the rights of marginalized people.  The decision also effectively requires that public policy be based on evidence and reason – not merely on assertions lacking a factual basis.

We are grateful to our counsel, Paul F. Monahan and Antonio Di Domenico (Fasken Martineau DuMoulin LLP) who represented us in this matter.

CCLA in the News

Some highlights from October:

High School Fundamental Freedoms Conference Celebrates 15 years

Student-led panel at the Fundamental Freedoms Conference in 2010

The Canadian Civil Liberties Association’s Education Trust will celebrate the 15th anniversary of its annual Fundamental Freedoms Conference held in collaboration with the Toronto District School Board. On November 30th, high school students from across the city will gather to spend a day learning about their rights and freedoms.

Beginning with a key note address entitled “Rights are Not Enough” by CCLA General Counsel Nathalie Des Rosiers, and ending with a panel discussion entitled “What’s Not Fair For YOU?” led by a group of students from Toronto’s Central Technical School, the day will also include workshops on such issues as immigrations rights, censorship, equality rights and sentencing of convicted criminals – all led by CCLET volunteers who are among Canada’s experts on the topics they will discuss. To learn more, click here.

CCLA Renews Call for a Public Inquiry into Afghan Detainees Case

The United Nations has just released a report documenting serious evidence of the torture of detainees in Afghanistan.  The  UN Assistance Mission in Afghanistan, interviewed over 379 detainees from 2010 to 2011, who gave first-hand accounts of their experiences of torture and other serious human rights violations, committed by the Afghan National Directorate of Security (NDS) and the Afghan National Police.  The report entitled “Treatment of Conflict-Related Detainees in Afghan Custody” is released by the offices of the UNAMA and the UN High Commissioner for Human Rights, and can be accessed here

The Canadian Civil Liberties Association has repeatedly called for a public inquiry into the transfer of Afghan detainees, by Canadian forces in Afghanistan, to the NDS.  Our position has always been that Canada is legally obligated in international law and under the specific rules applicable to the International Security Assistance Force (of which Canada is part), to ensure that detainees are not transferred to the risk of torture.  The very risk of torture places strict legal obligations upon Canada prior to, and following any transfer;  whereas the past allegations, and now further compelling reports, that torture has indeed taken place, impose  a legal responsibility to investigate Canada’s role in complicity in torture.

Any specific and systemic failures by Canada, at every stage, must be identified, rectified and redressed.  These failures can most effectively come to light and be addressed through a public inquiry. By not taking these steps, Canada compounds our legal and moral errors in contributing — however unintentionally – to torture and other serious human rights violations suffered by detainees we have transferred.

>> To read some of CCLA’s previous statements on this issue click here, here, and here.