By Cara Zwibel
on February 17, 2015
In January 2015 CCLA intervened in an important professional discipline case before Ontario’s Divisional Court. The case, Groia v. Law Society of Upper Canada, concerns the question of when a lawyer can be subject to professional discipline for statements made in court during highly contested litigation. Joseph Groia, the lawyer at the centre of the case, has been disciplined for professional misconduct on the basis of ‘incivility’. The Law Society of Upper Canada, which regulates lawyers in the province, has argued that statements and arguments made by Mr. Groia when defending a client against a serious securities prosecution, crossed the line from zealous advocacy to professional misconduct. CCLA intervened in this case before the Law Society’s Appeal Panel and and in Mr. Groia’s further appeal to the Divisional Court.
CCLA accepts that lawyers have professional obligations that may create some limitations on their freedom of expression. However, we are concerned that a broad reading of the Rules of Professional Conduct that require civility could have a chilling effect on lawyers, who are often looked to for candid commentary and criticism of the justice system and its core participants. CCLA argued that the threshold for disciplining a lawyer for incivility based on in-court statements should be very high, and that a penalty should be imposed on a lawyer only in the clearest of cases, where there is or is likely to be a miscarriage of justice. The Divisional Court’s decision was handed down in early February. The Court dismissed Mr. Groia’s appeal, upholding the Law Society Appeal Panel’s finding of professional misconduct. The Court’s reasons do aim to clarify when incivility will amount to professional misconduct and focused on the impact of the lawyer’s behaviour on the administration of justice. While CCLA feels this is a more helpful standard than the one established by the Appeal Panel, we remain concerned about the chilling impact this may have on legal advocacy.
Read CCLA’s factum.
Read the Divisional Court’s decision.
By Cara Zwibel
on February 13, 2015
The Supreme Court of Canada today struck down unconstitutional provisions in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (“Act”), in its decision in Canada (Attorney General) v. Federation of Law Societies of Canada.
In summary, the Act and its Regulations required lawyers to record and retain records on clients for transactions above three thousand dollars ($3000) separate from bail and legal fees. These records were to be accessible to the Government (including FINTRAC) for potential use in laying charges and future prosecutions, and included wide-sweeping search and seizure powers of law offices. Lawyers who did not comply with these provisions were subject to imprisonment and penalties.
CCLA intervened in this case to argue that these provisions of the Act and Regulations were unconstitutional because they wrongly impinged upon solicitor-client privilege, and because they wrongly impinged upon a lawyer’s liberty interests.
CCLA argued that the provisions would have a chilling effect upon solicitor-client privilege, and that solicitor-client privilege is a key component of the principle of access to justice, and the principles of fundamental justice, protected in section 7 of the Canadian Charter of Rights and Freedoms (“Charter”). CCLA argued that the provisions made lawyers into unwilling agents of the State. CCLA also argued that the potential sanctions against lawyers unconstitutionally impinged upon their independence and liberty interests safeguarded by section 7 of the Charter.
The Court unanimously struck down the provisions as they applied to lawyers – while upholding the provisions for other professions such as accounting. The Court found that solicitor-client privilege must “ remain as close to absolute as possible”, and that solicitor client privilege is part of the principles of fundamental justice. Lawyers have a duty “of commitment to the cause of their clients”.
The Court further ruled that “the scheme taken as a whole limits the liberty of lawyers in a manner that is not in accordance with the principle of fundamental justice relating to the lawyer’s duty of committed representation.” A minority of the Court disagreed that solicitor-client privilege is protected by principles of fundamental justice.
The Court unanimously found the provisions of the Act which enabled wide-sweeping warrantless searches of law offices to be unjustifiable breaches of the right to be free against unreasonable search and seizure in section 8 of the Charter, striking down those provisions.
CCLA was represented by Mahmud Jamal, David Rankin, and Pierre- Alexandre Henri.
To read CCLA’s factum click here.
To read the decision of the Supreme Court of Canada click here.
General Counsel & Executive Director
By Noa Mendelsohn Aviv
on February 12, 2015
The Supreme Court of Canada will be holding a two day hearing this Monday and Tuesday to consider laws that could penalize individuals for having assisted refugees enter Canada. The act of providing such assistance to people in danger is being termed, under a very broad interpretation of the law, “human smuggling” or “people smuggling.” However most of the individuals whose cases are before the Court are themselves claiming refugee status, or were assisting refugees, or both; most of them are not accused of any crime, and are not believed to have made a profit, or to have engaged in late-night border-running. These individuals are being penalized as “smugglers” for having assisted themselves as refugees and/or other refugees travelling with them to safety.
CCLA has intervened in the case to argue that if “smuggling” is interpreted so broadly that it encompasses any person who assists another to enter Canada, this could capture a refugee mother who brings her child with her, a refugee husband and wife who assist each other, or a humanitarian worker saving someone’s life. CCLA has argued that such laws would be unconstitutional and inconsistent with Canada’s international obligations to protect refugees.
CCLA is represented by Andrew Nathanson and Gavin Cameron (Fasken Martineau)
To read CCLA’s factum, click here.
By Cara Zwibel
on February 6, 2015
The Canadian Civil Liberties Association (CCLA) welcomes today’s decision from the Supreme Court of Canada striking down the assisted suicide provisions of the Criminal Code. The CCLA intervened in the case to argue that an absolute prohibition on assisted suicide restricts personal autonomy in a way that unreasonably limits the rights to life, liberty and security of the person. Control of bodily integrity is a crucial aspect of the rights to life, liberty and security of the person; the current Criminal Code provisions violate these rights. Prohibiting any and all forms of assistance in dying overrides the thoughtful and informed choices of terminally ill, suffering individuals and denies them the chance to preserve dignity and control over the final days of their lives.
“Today’s decision marks an important first step for Canada in granting individuals autonomy over their end of life choices,” said Sukanya Pillay, General Counsel & Executive Director of the CCLA. “Governments and civil society will have to work together to ensure regulations effectively protect true end of life choices and vulnerable persons.”
The Supreme Court found that the prohibition on physician-assisted dying deprives competent adults of help in circumstances where they clearly consent to death and where they have a grievous and irremediable medical condition that causes intolerable and enduring suffering. This amounts to a violation of the constitutionally protected right to life, liberty and security of the person, and is not reasonable or justified. The Court noted that a number of jurisdictions now permit some form of physician-assisted death and that the evidence supports the view that safeguards can be put in place to protect vulnerable individuals.
The decision marks a fundamental shift for Canada and CCLA welcomes the opportunity to engage with Canadians about how the law should deal with physician-assisted death in a way that upholds autonomy while protecting individuals from abuse.
CCLA is grateful to Chris Bredt, Margot Finley and Ewa Krajewska of Borden Ladner Gervais LLP for their excellent representation in this case.
Read CCLA’s factum in the case here.
Read the Supreme Court decision here.
By Noa Mendelsohn Aviv
on January 27, 2015
“Solitary confinement deprives the prisoner of vital human contact. This practice has devastating effects on the prisoner’s mental and physical wellbeing, and constitutes the harshest form of punishment that may be administered in Canadian penitentiaries. As such, the ready, routine and prolonged use of solitary confinement in Canadian penitentiaries is unjustified, unethical, and ultimately, unconstitutional.”
||- Notice of Appplication, Corporations of the Canadian Civil Liberties Association and the Canadian Association of Elizabeth Fry Societies
Constitutional challenged filed Janary 27th, 2015
The CCLA is deeply concerned about the practice of solitary confinement in Canadian prisons, and has long worked to uphold the rights of prisoners. CCLA has advocated with respect to these concerns, and noted the disproportionate representation of vulnerable groups in segregation including individuals with mental health issues and Aboriginal Peoples. CCLA has also conveyed in various fora its concerns regarding failing safeguards and an absence of adequate oversight with respect to segregation, and recently, the wholly inadequate response of the Correctional Service of Canada to the Ashley Smith Inquest recommendations.
Read CCLA’s Notice of Application here.
Background – the Impact of Solitary Confinement:
Solitary confinement – also known as segregation – can cause severe mental and physical pain or suffering. In the case of prolonged segregation of over 15 days, some of its harmful psychological effects can become irreversible. These findings, based on psychological studies, have been affirmed by international human rights bodies. Indeed, according to a report by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatement (August 2011), when segregation is used “as a punishment, during pre-trial detention, indefinitely, prolonged, on juveniles or persons with mental disabilities, it can amount to cruel, inhuman or degrading treatment or punishment and even torture.”
In addition, given the closed nature of prisons generally, and the isolation of solitary confinement, any abuses, misuse of authority, or mistreatment – such as that experienced by Ashley Smith – may go undetected and unchallenged.
There is also a troubling connection between segregation and suicide in federal penitentiaries, and a disproportionately high rate of suicide among prisoners in segregation. According to a recent report by the Office of Correctional Investigator (September 2014):
“A major finding of this review, one that is repeatedly supported by the literature, is that suicide rates are more prevalent in physically isolated cells (segregation, observation and mental health cells) than in general population cells. The literature is also clear that physical isolation and separation increases the risk of suicidal behaviour. Placement of a mentally disordered inmate in segregation or in an observation or special suicide-resistant cells has both perceived and actual punitive aspects… As this Office has long advocated, long-term segregation of mentally disordered inmates or those at risk of suicide or serious self-injury should be prohibited. Such a prohibition would be more consistent with existing policy on managing suicide risk than the status quo.”
In November 2009, CCLA announced that it was joining with the Criminal Lawyers’ Association to call for an immediate government response to the alarming increase in the use of solitary confinement in Canada’s federal penitentiaries.
- Click here for more information.
On March 15 2010, CCLA – jointly with the Criminal Lawyers Association, the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, the B.C. Civil Liberties Association, and the Schizophrenia Societies of both Ontario and Canada – sent a letter to the Minister of Public Safety concerning the use of segregation and the special needs of prisoners with mental health issues.
- For more information and to read the letter, click here and here.
Inquest into the Death of Ashley Smith – In March 2011, CCLA sought status as a public interest party in the Inquest into the Death of Ashley Smith. CCLA was represented on a pro bono basis by Allison Thornton (Koch Thornton LLP), assisted by Amy Slotek (CCLA). CCLA was a party to the Inquest and remained actively involved in it, through its various phases, until its conclusion in December 2013. During this time, CCLA questioned witnesses, called Prof. Andrew Coyle as an expert witness (from the U.K.), worked with the other parties to draft, where possible, joint recommendations for the jury, made oral submissions, endorsed and opposed the final submissions submitted by Coroner’s Counsel, and submitted its own Additional Recommendations to the inquest jury.
- To read the recommendations of Coroner’s counsel (many endorsed, and some opposed by CCLA), click here.
- To read CCLA’s Additional/Alternative Recommendations, click here.
In May 2012, CCLA addressed the issue of solitary confinement in its report to the UN Committee Against Torture, making a number of submissions, and referring specifically to the Ashley Smith inquest which was at that time ongoing.
- To read CCLA’s submissions to the UN Committee Against Torture, click here.
- For more information on CCLA’s submissions and the concluding observations of the committee, click here and here.
CCLA’s Sukanya Pillay published an op-ed in honour of Prisoner’s Justice Day 2012. The op-ed addressed, among other things, the overuse of segregation of people with mental health issues.
In December 2013, nearly a year following the conclusion of the Inquest into the death of Ashley Smith, Correctional Service Canada released its response to the Inquest recommendations. CCLA was deeply disappointed by this response, as failing to adequately address the practice of administrative segregation, place firm time limits on its use, or provide for meaningful oversight and accountability mechanisms.
- To read CCLA’s position on CSC’s response to the Ashley Smith Inquest, click here.
By Cara Zwibel
on January 27, 2015
FOR IMMEDIATE RELEASE
January 27, 2015- The Canadian Civil Liberties Association (CCLA) and the Canadian Association of Elizabeth Fry Societies (CAEFS) are challenging the inhumane practice of placing individuals in solitary confinement in Canadian prisons. This morning CCLA and CAEFS filed a petition in the Ontario Superior Court to challenge the constitutionality of legislative provisions which allow for solitary confinement.
“In 2011, the United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment declared solitary confinement contrary to the successful rehabilitation and reintegration needs of prisoners,” asserted Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies and the Sallows Chair in Human Rights at the University of Saskatchewan College of Law. “Recently, Canada’s own Correctional Investigator reported that 14 of 30 prisoner suicides in the past three years occurred in segregation, which elevates suicide risk. Most prisoners who died in segregation had a documented history of mental health issues.”
“The link between torture, cruel treatment and solitary confinement is too important for Canadians to remain silent,” said Sukanya Pillay, General Counsel and Executive Director of CCLA. “We cannot equivocate about measures that result in torture. We must protect the prison population’s most vulnerable members, which includes people with mental health issues.”
The CCLA and CAEFS have long worked to uphold the rights of prisoners particularly with respect to the concerning segregation, and the disproportionate representation of vulnerable groups in segregation including individuals with mental health issues and Aboriginal Peoples. Failing safeguards and an absence of adequate oversight over uses of segregation, and the wholly inadequate response of the Correctional Service of Canada to the Ashley Smith inquest recommendations prompted CAEFS and CCLA to take action.
“The practice of solitary confinement in Canada is fatally flawed,” remarked Jonathan Lisus of Lax O’Sullivan Scott Lisus LLP, Counsel in the petition to Superior Court. “Our clients are bringing these challenges to end practices that have violated the constitutional guarantee against cruel and unusual treatment or punishment”.
“Canadian prisons subject inmates to solitary confinement without any limit on duration, without any guarantee of independent review, and without any consideration of the frailties of the inmate” said Michael Rosenberg of McCarthy Tétrault LLP, Counsel in the petition to the Superior Court. “The ready, routine and prolonged use of solitary confinement in Canadian penitentiaries is unjustified, unethical, and ultimately, unconstitutional”.
The CCLA and CAEFS have also urged Canada to ratify the Optional Protocol to the UN Convention Against Torture, which would allow independent visits of detention centres.
CCLA and CAEFS acknowledge the work of their colleagues in British Columbia who last week launched a suit also challenging provisions enabling solitary confinement. “It is incumbent on all members of civil society to speak out against torture,” said Pillay, “we support their efforts and our joint suits reinforce the importance of these issues central to CCLA’s mandate.” Kim Pate, a Canadian expert who has worked to end solitary confinement for decades, argues that, “The preventable deaths of such prisoners as Ashley Smith, Kinew James, and Edward Snowshoe, have galvanized opposition to the use of segregation, especially for Indigenous prisoners and those with mental health issues. Eliminating or severely curtailing the use of isolation is a laudable objective. But the Correctional Service of Canada, by defining certain units as “special needs”, “mental health observation”, or “intensive psychiatric care”, often avoids the current review requirements stipulated by the Act. The resulting, often punitive, disciplinary responses exacerbate pre-existing mental health issues. Not only do we need accountability, but we need to recognize that in Canada, entire prisons for youth, men and women, have been managed for months and sometimes years, without segregation units.”
CCLA—an independent, non-partisan, non-profit, non-governmental organization—works to protect the rights and freedoms of all Canadians. Its mission is to promote respect for and observance of fundamental human rights and civil liberties, and to defend, extend, and foster recognition of these rights and liberties.
CAEFS –is a federation of twenty-five autonomous societies which work with, and on behalf of, marginalized, victimized, criminalized and institutionalized women and girls.
The CCLA and CAEFS are represented on their petition to the Superior Court by Lax O’Sullivan Scott Lisus LLP and McCarthy Tétrault LLP.
Canadian Civil Liberties Association
(416) 363-0321 ext. 230
By Cara Zwibel
on January 26, 2015
The Supreme Court of Canada recently rendered its judgement in Mounted Police Association of Ontario et al. v. Attorney General of Canada, a case that revolves around the fundamental freedom of association protected by s. 2(d), and the limitations placed on the rights of members of the RCMP to organize and bargain collectively on behalf of the membership. RCMP members are excluded from the labour relations legislation that governs most of the federal public service and has an alternative scheme in place. Under this scheme – the Staff Relations Representative Program – is the only means by which RCMP members can address labour issues with management. The Mounted Police Association of Ontario and the British Columbia Mounted Police Professional Association, were formed by members in the hopes of being a collective means of resolving employment disputes, but under the current law, this is not possible. The groups applied to the courts to have the legislative regime declared unconstitutional. CCLA intervened to support the right to bargain collectively and to form an employee association that is truly independent of management.
The Supreme Court’s decision held that the current scheme violates s. 2(d) of the Charter of Rights and Freedoms (freedom of association) and held that this violation was not reasonably justified under s. 1. The Court said that the Charter requires that employees must have effective input into the selection of their collective goals and that the purposes of collective bargaining could not be served by a system where employee groups were not independent of management. The CCLA welcomes this decision, which strengthens protection of freedom of association under the Charter.
Read CCLA’s factum in the case.
Read the Supreme Court of Canada’s decision.
By Cara Zwibel
on January 15, 2015
On Friday, January 16, 2015, CCLA will be appearing before the Supreme Court of Canada as an intervener in the cases of R. v. Barabash and R. v. Rollison. These appeals consider the Criminal Code’s child pornography provisions and, in particular, the personal use exception to child pornography that was established by the Supreme Court in R. v. Sharpe. While recognizing the seriousness of child sexual abuse and exploitation, CCLA has long been concerned that the child pornography provisions may unreasonably limit freedom of expression and, in particular, prevent the creation and dissemination of materials that don’t pose a risk of harm to children. The personal use exception at issue in these cases applies where recordings are made of legal sexual activities, where the parties have consented to the recording, and where the images are maintained for the participants’ personal use only. The Alberta Court of Appeal read a new requirement into the private use exception, requiring that the defendants prove “the absence of exploitation or abuse”. In our view, the exception’s existing requirements already serve this goal, and the additional requirement is vague, creates uncertainty and risks undermining free expression and intruding into the private sexual lives of young people.
Read CCLA’s factum here.
By Cara Zwibel
on January 6, 2015
CCLA is appearing before the Ontario Court of Appeal in Frank v. Canada, a case which deals with the fundamental right of all Canadian citizens to cast a ballot in a federal election. The Frank case challenges provisions of the Canada Elections Act that prohibits Canadians citizens who have resided outside of the country for more than five years from voting in federal elections. The Applicants, Gillian Frank and Jamie Duong are Canadian citizens who have been living in the United States for over five years. Both would like to return to Canada and maintain strong connections to the country. They challenged the constitutionality of these provisions successfully before the Ontario Superior Court of Justice. The Court found that the provisions unreasonably restricted the Charter protected right to vote. The government has appealed the decision and CCLA has been granted leave to intervene in order to argue that the right to vote should be strongly protected. CCLA has argued that the principle of equality is a value that underlies the Charter and, in particular, the right to vote. The provisions denying the franchise to non-resident citizens undermines the equality principle without a reasonable or justifiable basis.
Read the CCLA’s factum here.
By Cara Zwibel
on December 11, 2014
The Supreme Court’s decision this morning in R. v. Fearon gives the police seemingly wide latitude to search cell phones – without warrants – upon individuals’ arrest. The Canadian Civil Liberties Association is concerned that the judgment represents a significant blow to the privacy rights of average Canadians. Searching cell phones or any personal digital device is not that same as searching a physical object or even a pat-down search or frisk; rather, searching a cell phone can reveal intimate details about many aspects and spheres of an individual’s life and indeed, the phone can continue to generate evidence even after seizure. The constitutional right to be free from unreasonable search and seizure is very clearly engaged, and CCLA had urged the court that, absent exigent circumstances, the police should get a warrant to search personal cell phones. Searching a cell phone upon arrest without a warrant, is in our view, akin to finding a house key in a pat down search and then using that key to conduct a warrantless search of the arrestee’s house. The Supreme Court has, in previous cases, excluded such privacy-sensitive contexts – including a person’s home – from warrantless post-arrest search powers. Finally, we are concerned that the majority’s instructions to the police are complicated, will be very difficult to both monitor and implement in practice, and do not account for the fundamental concern that police in the heat of the moment of arrest are not best-placed to determine whether the state interest in law enforcement outweighs the detrimental impact upon privacy in searching a personal cell phone. We agree with the minority opinion that once such a warrantless search occurs, there is little that can be done to remedy the privacy violation.
Over 30 years ago the Supreme Court of Canada held that, in general, police must get a warrant before they can forcibly invade a person’s privacy. There are, however, exceptions to this rule, and searches of arrestees is one of them. Generally, the police do not need a warrant to search a person who is under arrest, and regularly do look through arrestees’ bags and pockets to ensure officer safety and secure potential evidence. Fifteen years ago this kind of search might turn up a wallet, some papers, maybe an address book. Today, however, we can carry our entire digital existence – phone records, contact lists, emails, social media profiles, location records, photos and much more – in our pockets. The privacy implications of giving police warrantless access to this information upon arrest are enormous. In CCLA’s view, cell phones cannot be treated like the scraps of paper, notes or printed photos we carry in our pockets or knapsacks. Rather, they are more like entirely distinct places – with vast amounts of personal information and correspondence and an unknown number of automatically-entered passwords that open doors to any number of linked accounts.
The CCLA appeared before both the Ontario Court of Appeal and the Supreme Court of Canada in R. v. Fearon to argue that a cell phone is not like a wallet or papers you may carry in your purse – and the law should not treat it in the same way. We urged that, absent exigent circumstances such as danger to life or imminent loss of evidence, the police should be required to get a warrant before searching a person’s hand-held electronic device. The vast, detailed, intensely personal information that can be accessed through our cell phones should not available for state inspection simply because an individual has been arrested and there may be evidence on his or her phone. Warrants are democratic instruments essential for the protection of privacy – when possible, we should use them.
On December 11, the Supreme Court released their judgment in the case. While the majority of the Court recognized the cell phones do contain a significantly increased amount of personal, private information, they did not limit these searches to exigent circumstances. Instead, the Court set out a test that, in CCLA’s view, opens the door to widespread warrantless cell phone searches upon arrest. According to the majority, police may search cell phones incident to arrest where:
(1) The arrest was lawful;
(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
(a) Protecting the police, the accused, or the public;
(b) Preserving evidence; or
(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
(3) The nature and the extent of the search are tailored to the purpose of the search; and
(4) The police take detailed notes of what they have examined on the device and how it was searched.
The majority’s decision does make it clear that not all post-arrest cell phone searches will be justified. The decision states, for example, that “a search of a cell phone incident to arrest will generally not be justified in relation to minor offences” and that, where there is no important law enforcement objective that would be served by a prompt cell phone search, the warrantless search will not be justifiable.
In CCLA’s view, however, it is very unclear how these restrictions will be applied in practice. As stated by the three dissenting justices, the majority’s approach “puts the balancing decision in the hands of the police”, who will be tasked with deciding “whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a personal cell phone …” Arresting someone is not the same as charging them with a crime. Many people who are arrested never even proceed to charges, let alone end up in trial in front of a judge. CCLA will continue to advocate a better understanding of the privacy implications of new technology in the context of policing.
To read CCLA’s factum at the Supreme Court click here.
To read the Supreme Court’s decision click here.
To read CCLA’s factum at the Court of Appeal click here.
To read the Court of Appeal’s decision click here.