By Abby Deshman
on April 11, 2014
The Supreme Court released its decision in R. v. Summers this morning, ruling that a broad range of circumstances may justify giving an individual enhanced credit for pre-trial detention at the time of sentencing. The Canadian Civil Liberties Association intervened in the case, arguing that individuals must not face a harsher sentence simply because they spent time in pre-trial detention or insisted on their right to a fair trial. In order to ensure that sentencing is fair, a wide range of circumstances – including the effective delay of eligibility for parole and early release that will automatically result from pre-trial detention – must be taken into account when determining how credit for pre-trial custody is calculated. The CCLA welcomes the court’s ruling, which upholds the fundamental principles of fairness in sentencing. As stated by the Supreme Court, “[a] system that results in consistently longer, harsher sentences for vulnerable members of society, not based on the wrongfulness of their conduct but because of their isolation and inability to pay, can hardly be said to be assigning sentences in line with the principles of parity and proportionality.”
The CCLA’s factum is available at http://www.scc-csc.gc.ca/factums-memoires/35339/FM060_Intervener_Canadian-Civil-Liberties-Association.pdf.
The Supreme Court’s decision can be accessed at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13586/index.do.
By Abby Deshman
on March 28, 2014
On March 27, 2014 the Supreme Court of Canada released its decision in Mission Institution v. Khela, a case that examined the scope of court review on a habeas corpus application and the disclosure obligations correctional authorities owe when an individual is involuntarily transferred to a higher security correctional facility. Habeas corpus is a centuries-old legal writ that is an essential safeguard against illegal and unconstitutional detention. As stated by the Supreme Court, it is “the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.” On a habeas corpus application, once an individual has shown the court that a deprivation of liberty has occurred and there is a “legitimate ground” to question its legality, the government bears the burden of proving that the imprisonment is lawful.
The Canadian Civil Liberties Association intervened in the case to argue that habeas corpus must continue to be a broad, flexible and responsive remedy that gives the fullest access and opportunity to prisoners to challenge the lawfulness of their detention. Where a person is imprisoned through an unfair process, that imprisonment is unlawful – and individuals must be given enough information by authorities in order to know why their liberty is being restricted, and meaningfully answer any accusations against them.
The Supreme Court’s decision strongly upholds a robust habeas corpus review, and affirms that provincial courts can assess both the procedural fairness and the reasonableness of a decision in order to decide whether an individual’s detention is lawful. The Court also ruled that correctional authorities have significant disclosure obligations in an involuntary transfer context, and that information may only withheld “when the Commissioner has “reasonable grounds to believe” that should the information be released, it might threaten the security of the prison, the safety of any person or the conduct of an investigation.”
To read the CCLA’s submissions click here.
To read the Supreme Court’s decision click here.
By Peter Goffin
on March 20, 2014
On March 18, 2014, CCLA appeared in the Supreme Court of Canada as an intervener in the case of Kazemi v. Iran et al.; Iran et al. v. Hashemi (Supreme Court of Canada File No. 35034). The case concerns the right to pursue a civil remedy against foreign governments for alleged death by torture – a violation of peremptory norms of international law and jus cogens. CCLA argued that torture, a violation of jus cogens, is an exception to the State Immunity Act, which statute would otherwise prevent a civil suit against a foreign State. CCLA had also intervened in the lower court, the Quebec court of Appeal.
CCLA would like to thank Christopher A. Wayland and Simon Chamberland of McCarthy Tétrault LLP for their excellent work representing us in this case.
To read CCLA’s factum in this case, click here.
By Cara Zwibel
on March 17, 2014
CCLA has been granted leave to intervene in Loyola High School, et al. v. Attorney General of Quebec. This case, scheduled to be heard by the Court on March 24, 2014, is the second time that the Court will consider an issue related to the province of Quebec’s Ethics and Religious Culture (ERC) curriculum which was put in place several years ago when the province went through the process of moving away from a confessional system of education. Loyola, a private Catholic high school in Montreal, sought an exemption from the Minister of Education on the basis that it taught a course that was equivalent to the ERC course but was in keeping with its mission as a Catholic school. The Minister denied the exemption arguing, in part, that as a religious institution (and not an individual), Loyola could not make a freedom of religion claim under the Canadian Charter of Rights and Freedoms or the Quebec Charter of Human Rights and Freedoms.
While CCLA recognizes that freedom of religion is often thought of as an individual right, it also has significant associational and expressive aspects. Therefore, in certain cases, where a non-profit institution is primarily a vehicle through which individual members exercise their own freedom of religion, association and expression, the institution itself can make a claim under the Charter freedom.
Read CCLA’s factum in the case here.
By Peter Goffin
on March 6, 2014
The Minister of Citizenship and Immigration and
the Minister of Public Safety and Emergency Preparedness v. Mohamed Harkat. SCC File No: 34884
Click here to see the full factum.
By Cara Zwibel
on February 19, 2014
CCLA recently intervened before the Supreme Court of Canada 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 associations sought to have the relevant legislative provisions declared unconstitutional, arguing that they impose unreasonable limits on the rights of RCMP members to associate and bargain collectively. Since the SRRP was created by management and is not fully independent of it, the associations argue that they cannot effectively bargain or represent their own interests though the SRRP. CCLA intervened in the case to argue that the right to associate and to bargain collectively is only meaningful if individuals can choose an association that is independent from management. Any restrictions on the right to associate within an association of one’s choosing must be narrowly limited and, in CCLA’s view, a compelling reason had not been established in this case. The Supreme Court heard arguments in the case in mid-February, 2014.
Read CCLA’s factum here.
By Noa Mendelsohn Aviv
on December 19, 2013
The jury of five delivered their verdict this morning, determining that Ashley Smith died as a result of homicide.
This is a sad victory, as justice can never be done for Ashley Smith.
However, CCLA is hoping it will result in a clear message sent to the Correctional Service of Canada that significant changes need to be implemented to ensure that such tragedies cannot recur. CCLA will continue working to protect the rights of all incarcerated persons including in particular those with mental illness; to demand meaningful accountability; and to call for meaningful monitoring and oversight systems in the prisons.
We thank Allison Thornton (Koch Thornton LLP), assisted by Amy Slotek, for excellent representation of CCLA in this Inquest.
By Cara Zwibel
on November 15, 2013
The Supreme Court of Canada has issued its decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, which challenged Alberta’s private sector privacy legislation on the basis that it interfered with a union’s expressive activities on a picket line. The Court has held that Alberta’s Personal Information Protection Act does infringe freedom of expression in a way that is not reasonable or justified and has struck the law down on that basis. However, the Alberta legislature has twelve months to change the law before the decision comes into effect.
The case arose when workers at Edmonton’s Palace Casino went on strike and decided to video record their picket line. This is a common practice among unions and is one way to try to persuade people not to cross the line. In this case, the union put up a notice that the line was being recorded and advised people that their images might be posted on a website – casinoscabs.ca. Although this was not actually done, a number of people made complaints to Alberta’s Information and Privacy Commissioner who found that the union’s activities breached the Personal Information Protection Act. As a result, the union challenged the constitutionality of the Act, arguing that it infringed the union’s expressive freedoms in a way that could not be justified by the privacy interests it aimed to serve.
CCLA intervened in the case to urge the Court to balance both freedom of expression and the right to privacy – both important constitutional values that are worthy of protection. CCLA pointed out that an individual does not forfeit their rights to privacy simply by being in a public space. At the same time, the union’s expressive freedoms at issue here needed to be taken seriously and the fact that the Act didn’t carve out space for this kind of expression was problematic. CCLA is pleased that the Court’s decision recognizes the importance of both freedom of expression and privacy and will be watching to see what changes the Alberta legislature makes in amending the existing legislation.
Read CCLA’s factum here.
Read the Supreme Court’s decision here.
By Abby Deshman
on November 12, 2013
This morning the Ontario Court of Appeal released its decision in R. v. Nur, striking down the mandatory minimum sentence of three years in jail for possessing a prohibited firearm that is loaded or near readily accessible ammunition. CCLA intervened in Nur and one of its companion cases to argue that this mandatory minimum provision was unconstitutional.
CCLA has objected to mandatory minimum sentences for years, in large part because they restrict judges’ discretion to determine the sentence that is fit for the circumstances of the crime and the accused. At times, mandatory minimum sentences may impose grossly disproportionate amounts of jail time on individuals whose actions, while illegal, should not result in years of imprisonment.
As the Court of Appeal has now affirmed, the mandatory three-year jail sentence that attaches to s. 95(1) of the Criminal Code is one of those cases, amounting to cruel and unusual punishment in violation of s. 12 of the Charter. Although possession of a prohibited firearm sounds serious, the actual offence is very broad – so broad that it captures a range of behaviour that seems closer to a mistake in paperwork rather than criminal conduct. Under s. 95(1), a person can be convicted without committing a “gun related crime”, without causing even a risk of harm to anyone and, in fact, without “using” a gun at all. People who could be caught under this section of the Criminal Code would include:
- a person who buys a ranch but doesn’t register the firearm that was in one of the buildings,
- a firearms collection that is inherited by family members who never registered the guns,
- a teenager shows off his father’s firearm at a party in a picture that is posted online,
- a family member who transports a firearm to a person who is legally allowed to have it, or
- an American tourist who brings a firearm to Canada that is licensed in the US but not in Canada.
For these individuals it would not matter that their intentions were good, that they acted responsibly, had no criminal record, that they had jobs, families and commitments. The law simply states that, if the Crown proceeds by indictment, they must go to jail for three years. These and other similar examples were considered by the Court of Appeal, which ruled that there was a “cavernous disconnect” between these types of illegal acts and the punishment that judges would be forced to impose – a sentence that is “so excessive as to outrage the standards of decency”. Midway through the judgment the Court considers whether this type of cruel and unusual punishment could nevertheless be justifiable in a free and democratic society. The Court’s words should be carefully heeded, not only as legally-binding constitutional doctrine, but also as a policy guidepost to legislators and politicians who frequently tout irrationally harsh criminal justice:
No system of criminal justice that would resort to punishments that “outrage standards of decency” in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.
We couldn’t agree more.
By Abby Deshman
on November 7, 2013
Traditionally when the police get a warrant, they have broad authority to search through anything in the house that might uncover the evidence they are looking for. If the warrant says they can look for documents, they do not need specific authorization to look inside filing cabinets, cupboards or boxes that are inside the house. But what about electronic devices? Does a general authorization to look for documents mean they can search through your computer, your smart phone, and every account connected to them? Is a computer just like any other physical ‘thing’ in your house that the police may want to search, or does it present unique privacy interests? The CCLA intervened in R. v. Vu to address precisely this question, and urged the Supreme Court to find that the traditional rules for warrant-authorized searches needed to be tightened when it came to computers.
On November 7 2013 the Supreme Court released its decision, and strongly affirmed that computers and smart phones present unique privacy interests – and therefore require unique privacy protections. The Court ruled that computers are not mere ‘things’ but operate more like a separate ‘place’, or a portal to many separate places, each of which have the potential to hold vast amounts of private, personal information. In addition, unlike traditional household ‘things’, they track the user’s movements and actions by default – creating a trail of activity that most owners are unaware of and unable to delete. As explained by Justice Cromwell,
The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search.
CCLA had also urged the Court to recognize a constitutional requirement on the police to document their search steps. Ensuring that, when a computer is searched, the search is no more intrusive or extensive than authorized is a key component to limiting privacy invasions. Indeed, in the Vu case, one police officer admitted he purposely took no notes of his computer search because doing so would have meant he would have to testify about his actions in court. Although the Supreme Court declined to make search documentation a constitutional requirement, they did denounce the police conduct in this case, ruling that the police officer’s conduct was “clearly improper and cannot be condoned” and that “notes of how a search is conducted should … be kept, absent unusual or exigent circumstances.”
From now on, if police officers want to search computers pursuant to a warrant, they will have to get specific authorization to do so. And they had better take notes while they’re at it.
Read CCLA’s factum before the Supreme Court
Read the Supreme Court’s decision