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September 2012 e-bulletin

September 4th, 2012

Dear CCLA supporters,

As September returns, we look forward to the Fall.  CCLA will continue its work in monitoring the state of civil liberties in Canada. Warranting particular attention this fall: in New Brunswick, we made submissions to the Richard inquiry on the use of criminal libel charges against a blogger. We know that criminal libel charges have been laid in Alberta and in Ontario as well.  In Québec, we are involved in the challenge to Bill 78 that bans protests around all post-education institutions. In Ontario, we have criticised the recent Bill that restricts the right to strike and to bargain of teachers and education workers for the next two years.  CCLA is also continuing its work in the classrooms, teaching critical thinking and democratic literacy to students and teachers.

Finally, in the coming weeks, we are very pleased to release our study on the criminal records checks and other information collected by the police. This study is the result of two years of research and litigation. Watch for it on its official release on September 17th.

Nathalie Des Rosiers
General Counsel

In this issue:

Putting Students First Act 2012 : Putting Democracy Last?

Many would agree that the economic situation of the province of Ontario is dire and that Ontarians need to make sacrifices. Many would also agree that the government has the responsibility to attempt to stimulate the economy and may also decide to curtail its expenses. This may be very difficult, if not impossible, to do without significant reductions in the Ontario public service. But must it also mean undermining democratic values?

The bizarrely-named Putting Students First Bill has extraordinary provisions. It gives power to the Minister to mandatorily include terms into a negotiated collective agreement, to restrict strikes and lock-outs even if none is on the way, and to demand that workers pay back salaries that they would have been granted through bona fide agreements with school boards… It also limits legal remedies and judicial oversight… All this in the name of restraint..

CCLA has argued that the Bill goes too far. On its face, it violates the right to a meaningful collective bargaining: the essential terms are already dictated and all agreements must be similar or identical with respect to these terms or they will be void to the extent that they deviate from those terms. It certainly violates the right to strike to express one’s discontent by giving the power to the Minister to prohibit a strike or lock-out even if the parties are in a legal position to do so. It certainly undermines the democratic process by giving all these powers to Cabinet or the Minister, with little or no input from the Legislature. But, says the government, it is “necessary”.

Is it? Is it necessary to limit the exercise of the right to strike before it is exercised? Is the government engaging in a pre-emptive law making, denying rights in case they are used badly?

In general, back to work legislation means just that – someone has stopped working, and we legislate them back to work. We demand evidence of major disturbances or ruinous disruptions prior to enacting targeted, emergency laws that infringe collective bargaining rights. There is a good reason why this is the case in Canada. Engaging unions, and through them, workers, to negotiate terms for their labour is fundamentally democratic. It is rooted in the idea of the dignity of human beings to sell their labour on terms that they accept. Collective bargaining is a constitutional right for this reason, because it enhances the dignity of workers, and not just because it has been demonstrated to reduce the exploitation of workers. Collective bargaining is not only about the pocket book, it is also about the possibility of participating in workplace governance. Respect for collective bargaining is a good investment in the capacity of people to self-govern and live with dignity.

Imposing the terms from the centre may diminish the decision-making and the governance capacity of school boards, not only for 2012 but for the next round of negotiations. The long term effects of undermining school board governance or unions’ capacity to effectively serve their members will not work to Ontario’s advantage. Governing responsibly is not about taking all decision-making power away from the communities who should be making the decisions.

In the end, this bill may be teaching students the wrong democratic message: that it is appropriate to by-pass public debates by giving Cabinet, rather than the Legislature, the power to interfere with constitutional protections, and that it is appropriate to limit rights in a pre-emptive fashion. Is that Putting Students First or Democracy Last?

Time for Omar Khadr to return to his own country, Canada

CCLA has been keeping you informed on the continued detention of Canadian citizen and child soldier, Omar Khadr, held at Guantanamo Bay since 2002.

CCLA repeatedly called for Omar Khadr’s repatriation to Canada, where he could be treated according to the international laws that seek to protect and rehabilitate child soldiers.

In October 2010, facing a trial a U.S. Military Commission without the full due process protections of federal courts, and facing a forty-year sentence — Khadr plead guilty. In exchange for his guilty plea, Khadr was sentenced to eight years imprisonment – and the terms stated that after serving one additional year at Guantanamo Bay, he would be eligible for an international prison transfer. Canada agreed to consider his transfer.

In October 2011, Khadr became eligible for transfer to Canada. The U.S., which consents to the transfer, is waiting for Canada to make the next move.

So far, the Canadian government has not moved to transfer Omar Khadr to Canada. His lawyers have filed a motion in Federal Court (Ottawa) to seek judicial review of this delay. CCLA will keep you informed on the progress of this case.

It is time to let Omar Khadr return to – his own country of – Canada to serve the remainder of his prison sentence, and to begin the process of rehabilitation.

Omar Khadr did not receive the protections international law provides to children in armed conflict. Nor did Omar Khadr receive the protections of the Canadian Charter when he was interrogated by Canadian officials at Guantanamo Bay. Omar Khadr has yet to receive the benefits of section 6 of the Charter, as well as Canadian laws on international prison transfer permitting Canadian prisoners to finish serving time in Canada, when — as in the case – the foreign county agrees to the transfer.

RightsWatch Annual Conference – Montreal – 12/13 October 2012

Now in its 4th year, the annual national RightsWatch conference will be held in Montreal, Quebec, October 12-13th 2012. Hosted by the Canadian Civil Liberties Association and the Centre for Human Rights and Legal Pluralism at McGill, the conference will take place at the Faculty of Law at McGill.

This year the conference is entitled Civil Liberties: People, Power and Protest and a wide range of national and international speakers will be invited to share their perspectives on numerous facets of this theme.  In general, the conference is designed to expose law students, lawyers, and those interested in civil liberties and human rights issues to the important public interest cases and issues that are constantly arising in our society and encourage them to think critically about these issues.

Prominent speakers from academic institutions, law firms, government and public interest organizations will participate to get as wide a perspective on these issues as possible.

To learn more about the conference and to register, please visit: http://ccla.org/events/rightswatch-2012/

R. v. Fearon – Fighting Against Warantless Searches

Imagine this scenario.  The police suspect that you have committed a crime. Maybe you match the description of someone who has just robbed the convenience store down the street, or they think you were smoking weed or driving drunk.  They decide there is enough evidence to arrest you, and before putting you in the police car to take you to the station they search you – and find your cell phone.  Back at the police station your phone is passed around and various officers are given the chance to pour through your personal photos, text messages, contact names and numbers, appointments, emails, locational history, social networking profile and messages, and anything else you happen to access through or store in your phone.  They are looking for evidence – after all, maybe you texted your partners in crime, planned the robbery over email, took photos of yourself at a party before you got into the car or have the numbers of some known drug dealers in your contacts.

We all agree that police officers need to look for evidence, and that cell phones can hold a trove of relevant information.  But should they be able to engage in this kind of post-arrest search without a warrant?

CCLA doesn’t think so, and on Friday September 9th we will appear before the Ontario Court Appeal to argue that absent exigent circumstances (such as risk to someone’s life or imminent destruction of evidence), warrantless searches of such extensive, private data stores are unconstitutional.  Portable electronic devices such as cell phones can hold increasingly vast amounts of private, personal information including private or confidential correspondence, diaries, calendars, photographs, video recordings, Facebook or Twitter accounts, Internet browsing histories and personal details about entire networks of family, friends and acquaintances. They can be nothing less than a virtual home, providing a direct portal to an entire online existence.  Generally, we require authorities to get warrants before they can search personal, private spaces.  While some exceptions have been recognized – including the power to search an individual after a legal arrest – but there is simply no comparison between checking someone’s pocket for instruments of violence, and searching a modern smartphone.  The message is simple – want to search through my phone? Get a warrant first.  We hope that the Court of Appeal agrees.

The case, R. v. Fearon, will be argued on Friday September 9th at the Ontario Court of Appeal.

CCLA congratulates 2011 Gala Honourees Deepa Mehta and Sarah Polley

In 2011, the Canadian Civil Liberties Association had the great pleasure of honouring two of Canada’s most talented and accomplished artists: Deepa Mehta – who is also a board member of CCLA – and Sarah Polley. Today, both women are about to launch new films at the Toronto International Film Festival: Deepa Mehta’s long-awaited Midnight’s Children, based on the prize-winning book by Salman Rushdie, and Sarah Polley’s The Stories We Tell, a deeply intimate documentary.

It is through the works of artists such as Mehta and Polley that we are able, as a society, to learn empathy and compassion, to better understand the depth of human complexities. CCLA congratulates them both on their extraordinary achievements, and wishes them the best as they prepare to present their films to their Canadian audience.

Sarah Polley and her husband, David Sandomierski, at CCLA's June 2011 gala

Deepa Mehta and Salman Rushdie at CCLA's June 2011 Gala

CCLA saddened by the loss of Ruth Goldbloom, O.C., O.N.S.

Ruth Goldbloom, who was honoured for her work in advocacy by the Canadian Civil Liberties Association at our June 2012 gala, passed away on August 29th. Among her accomplishments, Ms. Goldbloom was behind the creation of Pier 21, now a national museum in Halifax to honour all immigrants to Canada. She was a role model and inspiration for many people across Canada, and her strong legacy will live on. CCLA offers its condolences to Ruth Goldbloom’s friends and family.

Ruth Goldbloom (center) surrounded by family at the 2012 CCLA gala on June 21st