Dear CCLA supporters,
I was away in May in Belgium and Zambia and from a distance read, heard and commented on the extraordinary civil liberties activities that took place during that month: the on-going protests in Montreal crowned by the dire Bill 78, a one year curtailment of the right to protest by student groups ( see below), the release of the two independent review reports on the G20 that validate the conclusions that CCLA has reached through its monitoring system two years ago, and the federal government’s change of heart on some of the controversial provisions of the anti-refugee bill that we had challenged. Overall, a busy month! I want to thank the Board and the staff for such great work.
As we prepare for our annual fundraiser Gala event, I invite you to consider how much the work of CCLA has been important in the life of the Canadian democracy : it does make a difference and we are able to show that legislators and courts are often responsive to our observations and that we are instrumental in ensuring accountability for possible abuses of power or violations of constitutional rights.
I thank you for your support,
Nathalie Des Rosiers
In this issue:
- Student protests and Québec Bill 78
- CCLA at the UN
- G20 Update
- Freedom of Expression & Police Accountability
- Bill C-31: Government Gives In – A Little Bit
- A Victory for LGBTQ-positive student clubs
CCLA has joined many groups that oppose Bill 78, passed by the Québec government in response to the on-going student protests in the province and particularly in Montreal. In our view, the Act is overbroad and unbalanced. Read our analysis here. We salute the efforts that have been made to resist the Act and engage in peaceful, if loud, protests. The legal challenge to the Act will test the way in which the Canadian constitution protects the right to peaceful protest in our democracy and the reasonable limits that could be imposed, and CCLA will participate. We are concerned that blunt legal instruments are being developed to present protests as “dangerous”, “excessive”, “lawless” as opposed to fully appreciate the importance of a right to engage in collective action to express one’s displeasure at a government and limit the control to a law enforcement issue when and if protesters engage in violent actions. A vibrant and mature democracy is more than the right to vote every four years, it demands a respect for the ability of people to express their views to their government in between elections.
CCLA appeared in person before the UN Committee Against Torture in Geneva on May 18th 2012. The Committee is comprised of ten legal experts from around the world, charged with overseeing how State Parties comply with their legal obligations pursuant to the UN Convention Against Torture (“UNCAT”).
At the Committee hearing, CCLA highlighted concerns from its written report.
CCLA answered the Committee’s questions about various issues including (i) our position that Canada’s State Immunity Act should allow torture victims to bring civil suits against States (ii) our concern over Nathalie Morin and her three children – all Canadians unable to leave Saudi Arabia, and reportedly subject to domestic violence – thereby engaging and Canada and Saudi Arabia’s obligations pursuant to the UNCAT (iii) CCLA’s position that all legal safeguards and policy recommendations from the O’Connor and Iacobucci Commissions be implemented; (iv) CCLA’s concerns that envisioned “information sharing and pooling” of the proposed Canada-US Security Perimeter comply with the Canadian Charter of Rights and Freedoms and the recommendations of the O’Connor and Iacobucci Commissions; (v) Bill C-31 and CCLA’s ongoing concerns about refugee rights; (vi) incarceration and segregation of individuals with mental health issues; (vii) extradition and CCLA’s position that individuals cannot be removed to the risk of torture, manifestly unfair trial, or on the basis of information corrupted by torture; and (viii) CCLA’s work on the G20.
The UN Committee Against Torture met with the Canadian government on May 21st and 22nd in Geneva – and asked Government representatives about these issues.
Two key G20 reviews were released this month, the first from the federal Commission for Public Complaints Against the RCMP and the second from Ontario’s Office of the Independent Police Review Director (OIPRD). The findings confirm the position that Canadian Civil Liberties Association has held from the outset: that mass violations of fundamental rights occurred throughout the downtown Toronto core over the G20 weekend. The OIPRD Report found:
- An exponential increase in city-wide illegal stops and searches over the weekend
- Violent dispersal of protesters from the ‘designated speech area’, including instances where excessive force was used
- Unlawful mass detention and arrest of hundreds of people at multiple locations over the weekend
- Inhumane conditions and mass rights violations at the temporary G20 detention centre
The Report identifies systemic planning and training failures leading up to the G20, as well as specific orders and statements made by senior commanding officers that led to unlawful police conduct during the G20 weekend. Disciplinary hearings are being brought against dozens of officers for specific allegations of misconduct, including some charges against officers with senior command positions in the Toronto Police Service.
CCLA, in response to these reports, has renewed its drive for accountability. It called on Chiefs of Police and the police services boards to proactively pursue meaningful disciplinary measures for all officers implicated in misconduct that weekend – including those senior command officers responsible for the decisions that violated the civil liberties of hundreds of Canadians on June 26th and 27th. CCLA continues to believe that, given the severity of the rights violations that occurred on the G20 weekend, full political and police accountability is vital to rebuilding public trust in law enforcement and democratic institutions. We know what happened during the G20. We know that there were rights violations on a massive scale. What we need now is accountability. Transparency without accountability is unacceptable.
The New Brunswick government announced in early May that charges would not proceed against a Fredericton blogger whose case we wrote about in last month’s e-bulletin. The blogger faced the possibility of criminal defamation charges in relation to comments on his blog about a city police officer. The blogger was arrested and his computer searched and seized under a rarely used Criminal Code defamation provision that has been found unconstitutional in multiple jurisdictions. CCLA, along with law professors and other community members, had been demanding that charges not be laid because of the unconstitutionality of the provision and the potential chilling effect it would have on freedom of expression.
The Attorney General of New Brunswick did not approve charges, finding it highly unlikely that any court in the province would find the Criminal Code section constitutional. While we are pleased with this recognition of the section’s unconstitutionality and the decision to abandon any charges, there remain important questions that need to be answered with regard to the appropriateness of the police investigation in this matter.
CCLA has written to Fredericton’s city administrator, who is exploring the city’s options for a public review of the incident. In our letter, we assert that any inquiry into the actions of the police forces involved in the matter must be prompt, credible, comprehensive and transparent in order to restore public confidence in policing. While the chilling effect this case has had on freedom of expression in the community will likely linger, an independent and impartial review will help repair the trust between the public and policing in Fredericton. CCLA will continue to watch this case closely because of its implications for freedom of expression and police accountability in the region.
Bill C-31 – the government’s comprehensive anti-refugee bill – was recently amended. The amendments came following months of efforts by CCLA and other human rights and refugee rights groups. The most significant of the amendments concerned the length of time a person has to wait before they might be released from detention.
Under our current immigration law, any person detained upon arrival in Canada must be brought before an independent adjudicator within 48 hours. This adjudicator considers the reasons for the detention, and releases the person if there are insufficient grounds to detain. Bill C-31 as it was originally proposed would have changed this considerably, placing Minister-selected (“designated”) groups of people in automatic, mandatory, group detention with no opportunity to see an independent adjudicator for 12 months.
After months of advocacy, and after CCLA and numerous other individuals and groups were heard by the Standing Committee on Citizenship and Immigration, Bill C-31 was amended. As it currently stands, the Bill would continue to have mandatory group detention, but detainees would be brought before an adjudicator within 14 days, and then again after 6 months.
This is less promising than it appears. Bill C-31 requires “designated” persons to prove their identity before they can be released. Such a requirement would be very difficult to achieve within 14 days of arrival, in jail, with limited language skills, limited access to a lawyer and resources, etc. The likely result will be that many people will languish in jail for over six months before they have a real chance at release.
This is unconscionable. Six months is a very long time for innocent people to be held with no charges, no conviction, no suspicion, and no risk. And it is not the only wrong Bill C-31 will perpetrate. These wrongs also include discrimination, and the possibility of removing real refugees from Canada and returning them to danger.
However we should still celebrate a small victory that may lead, for some, to six months less of jail time, with its associated tensions, trauma and suffering – and six months more of freedom.
In a resounding victory for LGBTQ students in Ontario, the government has amended the anti-bullying bill as it heads to third reading, to provide for LGBTQ-positive clubs in schools with appropriate names. Bill 13, the Accepting Schools Act, 2012, had already provided for the creation of student organizations “that promote the awareness and understanding of, and respect for, people of all sexual orientations and gender identities.” The amendment clarifies that principals and school boards may not refuse students who wish to use the name “gay-straight alliance or a similar name” for these student clubs.
CCLA, as well as numerous other individuals and groups, had appeared before the Standing Committee on Social Policy. Read our submissions here. CCLA was supportive of the intention of the bill to prevent bullying and harassment, but reminded the committee of the need to respect the constitutional rights and freedoms of students. As to LGBTQ-positive student clubs, CCLA recommended amending the bill in a manner that protected the fundamental rights of students to name their clubs as they chose, subject to reasonable limits. This recommendation is ultimately reflected in the amended Bill 13 that is heading to third reading.
Several of CCLA’s other recommendations appear to have also been incorporated into the amendments to the bill, including: references to transphobia and gender identity in the bill where homophobia and sexual orientation appear; and monitoring requirements with respect to suspensions and expulsions (necessary because of the potential disparate impact of this discipline on minority groups).
Unfortunately, despite intense media interest in CCLA’s position on the definition of bullying as subject to discipline – that this definition should be carefully conceived to protect students’ rights and unpopular views – our position was not adopted. Indeed, the amendment to Bill 13 expanded this definition and as a result increased the potential that students will be disciplined for various kinds of Charter-protected expression.
As a result, CCLA welcomes the amendments’ recognition of students’ freedom of expression and association with respect to LGBTQ-positive groups. However, CCLA continues to have concerns with mandatory disciplinary measures, as well as an overbroad legislative definition of bullying that may violate students’ rights to freedom of expression, association and equality.