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October 2012 e-bulletin

October 5th, 2012

Dear CCLA supporter,

I want to thank you for your support and invite you to join us for our  Annual RightsWatch Conference in Montreal on October 12 and 13th on the theme  “People, Power & Protest” , and on October 19th in Toronto for our  Social Cost of National Security Conference.  Both conferences reflect on on-going issues in Canadian society. First, the Montreal conference explores  many civil liberties themes such how to reconcile a meaningful right to peacefully protest with the risk that property damage or looting  may accompany demonstrations. The Montreal conference is almost sold out, so register soon! In Toronto, we will address a rarely a topic touched: what are the side effects of the increased securitization of our lives? How do we prevent the emergence of discriminatory behaviour from the continuing War on Terror?

I hope that you will join us. For those who cannot attend, I invite you to follow our ongoing work by signing up for our Daily News Links. Finally, I invite you to engage in more in-depth reflection on the impact of the Charter of Rights and Freedoms on Canadian Law, 30 years after its enactment  by reading Ryder Gilliland’s “The Charter at Thirty.”

Thank you always for your help,

Nathalie Des Rosiers

In this issue:

Presumption of Guilt? New CCLA report looks at how police background checks can undermine the presumption of innocence

The Canadian Civil Liberties Association has released a new report entitled Presumption of Guilt? The Disclosure of Non-Conviction Records in Police Background Checks. The report sheds light on the impact of police background checks – which contrary to popular belief frequently disclose a wide range of “non-conviction” information, including withdrawn charges, acquittals or even complaints where charges were never laid. Non-criminal interactions, such as experiences with police due to mental health needs, are also recorded in police databases and may be disclosed on background checks. The report draws from research into retention and disclosure practices in Alberta, as well court cases and research from Ontario and across Canada. The report offers recommendations for best practices that are relevant to police forces across the country.

The Security of Canada’s Immigration System – Excerpts from CCLA Presentation to the Standing Committee on Citizenship and Immigration

1. The need for an independent system of accountability for the Canadian Border Services Agency

Increasingly, coercive powers are conferred on the border agency within the context of the detention of persons arriving in Canada, or the inspection and questioning of persons entering or returning to Canada. Its supervisory regime is an anomaly. Intelligence services have an accountability regime, as does the RCMP – and we acknowledge the efforts now before the House to try to improve it – but border services does not. There is an internal complaints process but it is not sufficient in a context where coercive powers are exercised.

In a democracy we must always have the reflex to match increased powers or discretion with an accountability regime. It is important here to increase the confidence of Canadians in the regime.

There is a gap in our accountability regime because CBSA is not subject to independent civilian oversight which should have both complaints and audit powers (that is the ability to conduct investigations of its own motion). A good oversight mechanism must also provide sufficient guarantees of independence.

Asking for oversight for CBSA is the right thing to do. It is just good governance.

2. The Difficult issue of Persons Suspected of War crimes or crimes against humanity

CCLA like other human rights organizations is fully engaged in the fight against impunity. It is absolutely essential that people who may have committed war crimes or crimes against humanity be brought to justice and tried properly. Similarly people who are innocent should be vindicated and cleared of innuendos or unsubstantiated accusations.

The obligations of Canada on this score are important.  We support a policy that aims to prosecute people suspected of crimes, or cooperate with the International Criminal Court in that regard, and not  to simply deport them in a context where there is no likelihood of prosecution.  Simply deporting them is “passing the buck” so to speak and not fully respecting our obligations.  It does not serve the goal of justice – and at times, it may even lead to preventing the prosecution.

We want an immigration regime that is “good for Canada” and that is also “good for the world”.  Every day, Canadians and others around the globe are subject to injustices at the hands of dictators, and it is incumbent upon us to ensure that the message that crimes against humanity will be prosecuted is not ignored.

Different cases raise different factual scenarios : not everyone can be extradited to a place where they will be tried fairly, or not tortured or suffer persecution.  In such cases, only prosecution in Canada or transfer to the International Criminal Court may be possible.

Prosecution of crimes against humanity and war crimes is a duty. Our suggestion is that there ought to be reporting mechanisms on the part of the Ministry to Parliament about how the decision not to prosecute was reached and why deportation was seen as the only solution. We owe it to the world to carry out these responsibilities adequately.

Everyone in Canada should be subjected to the same norms of justice: we would not tolerate that a Canadian be branded as a war criminal without the possibility of having her day in court to determine whether the accusation can be proved beyond a reasonable doubt. That is our standard of justice.  When we depart from this standard of justice for non-Canadians, and accept that innuendoes, poor evidence, inconsistent testimonies and generally a lower standard of proof is used to determine the guilt of persons accused of serious crimes, we devalue justice itself.

The same justice for everyone is what we must strive for.

Omar Khadr’s Long-Awaited Transfer Back to Canada Is a First and Necessary Step in his Rehabilitation

CCLA welcomes the news that Omar Khadr has been transferred back to Millhaven Prison in Canada, from Guantanamo Bay. CCLA has long argued for Mr. Khadr’s repatriation, and following his plea bargain in 2010, for his transfer to serve the remainder of his sentence (8 years imprisonment) in Canada.

Mr. Khadr is a Canadian citizen.  He was picked up by American forces in Afghanistan during hostilities, when he was only 15 years old.  Pursuant to the Optional Protocol to the UN Convention on the Rights of the Child – which both Canada and the US have signed — children up to the age of 18 who partake in armed conflict are to be treated as child soldiers.  This means these children are understood to have acted subject to coercion or duress; and so their rights including to a lawyer and family visits must be protected, and the goals of rehabilitation and reintegration into society must be upheld.  Omar Khadr received none of these protections.  Additionally, the Supreme Court of Canada found that Mr. Khadr’s rights under the Canadian Charter of Rights and Freedoms, were violated when Canadian officials interrogated him at Guantanamo Bay — knowing he was a minor, without a lawyer, and detained in a facility that violated international legal standards — and then passed on that information to US officials.  The Supreme Court of Canada ordered the Canadian government to provide Mr. Khadr with a remedy for the violation of his Charter rights, but stopped short of prescribing the remedy.

As a Canadian citizen, Mr. Khadr would have been eligible to return to Canada upon completion of his sentence in the US.  However, CCLA argued that pursuant to the Charter, and the International Transfer of Prisoners Act, when a detaining state consents (as the US did in this case) to transfer a prisoner back to Canada, Canada must not delay nor exercise unjustifiable discretion to prevent the transfer.   CCLA believes that serving the remainder of his sentence in Canada is a necessary step towards Mr. Khadr’s rehabilitation and ultimate reintegration into society.

Litigation updates

Supreme Court reaffirms importance of public interest litigation

The Canadian Civil Liberties Association welcomes the decision handed down  by the Supreme Court of Canada in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society affirming that a liberal and purposive approach to public interest standing before the courts best serves the administration of justice.

The constitutional challenge was launched by an advocacy group composed of women involved in the sex trade in British Colombia seeking to challenge a broad range of laws against prostitution on the basis that they infringed several of their members’ Charter rights. Members of the advocacy group were denied standing at the trial level, but granted the right to appear as public interest litigants by the British Court of Appeal. The Supreme Court today agreed, holding that these women should have their day in court.

CCLA intervened in the case to argue that the courts should not treat public interest litigants as exceptional but rather apply an approach that recognizes the underlying purposes behind public interest standing.  In CCLA’s view,  more liberal rules for public interest standing  addresses the need to enhance access to justice before the courts, to ensure that legislation and government actions are effectively reviewed and makes the best use of judicial resources.

CCLA also took the position that a public interest litigant should not be denied standing merely because of an existing or ongoing case in another jurisdiction. This became an issue during proceedings because of ongoing litigation in Ontario in the Bedford Case, a case which CCLA has also intervened in.  While the Supreme Court of Canada noted that existence of parallel litigation is a relevant factor for the courts to consider, it is not a sufficient basis to deny the rights of public litigants in bringing forth their claim elsewhere.

>> For additional resources, including CCLA’s factum and a link to the decision, click here

Supreme Court Releases Decision in the ‘Fake Facebook’ Case

The Canadian Civil Liberties Association generally welcomes the decision handed down  by the Supreme Court of Canada in A.B. v. Bragg Communications Inc, a case which raised questions around the open court principle, freedom of expression, and access to justice in the context of a case involving a minor who had been cyber-bullied.

In March 2010, a youth in Nova Scotia, A.B., discovered that someone had created a fake Facebook page purporting to be hers. The bogus profile included her photograph and other identifying details, along with what a judge later called “scandalous sexual commentary of a private and intimate nature.” Shortly thereafter the Facebook page was taken down. A.B., through her litigation guardian, applied for an order requiring the Internet Service Provider (ISP), identified by Facebook as the host of the originating Internet protocol (IP) address, to provide her with the name and address of the person(s) who created the bogus page. In her application, she stated that she wished to discover the identity of the profile creator(s) so that she could pursue a defamation suit against them.

In her application, she also asked the court to conceal her identity by allowing her to proceed by initials, and to ban the republication of the actual words contained in the fake Facebook profile. Although the ISP agreed to disclose the information with a court order, two news outlets successfully objected to the other requests as infringing upon the open court principle. The Chambers judge found that there was no evidence before him that A.B. would face serious risk of harm without a total publication ban and anonymity: a requirement of the Dagenais/Mentuck test to limit the primacy of open courts.

A.B. appealed. She argued that a minor should not have to prove that actual harm would occur if the offending material were repeated, or her name made public. Rather, the courts should take judicial notice of the damage suffered by minors in cases like this, and automatically protect their privacy. The Nova Scotia Court of Appeal disagreed and upheld the Chambers judge’s decision. The case was appealed to the Supreme Court of Canada.

CCLA welcomes the Supreme Court’s decision which affirms that an anonymity order is more appropriate than a publication ban in this case for reconciling issues surrounding the open court principle, freedom of expression, privacy, and access to justice. This is consistent with the position CCLA adopted in its submissions. Such a ban protects A.B.’s privacy concerns without concealing details surrounding the case from the public eye.

>> For additional resources, including CCLA’s factum and a link to the decision, click here

CCLA intervenes in wireless wiretapping case before the US Supreme Court

Have you emailed someone in the United States, phoned a family member there or corresponded with a US company? The US government may be listening in real time – with almost no oversight or accountability. The Foreign Intelligence Surveillance Act (FISA) is United States legislation that regulates US domestic intelligence surveillance. In 2001, the President of the United States authorized a massive domestic warrantless wiretapping program, and in 2008 the US Congress expanded the program, giving the US government almost unchecked power to monitor phone calls and emails that ‘left’ American soil. Last month, CCLA joined other members of the International Network of Civil Liberties Organizations devoted to protecting civil liberties—including freedom from unchecked government surveillance and the right to challenge such surveillance – to intervene in Amnesty et al. v. Clapper before the US Supreme Court to challenge FISA. You can read our brief here.