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By Abby Deshman on May 15, 2012
On Tuesday May 15 the CCLA will appear before the Ontario Court of Appeal in J.N. v. Durham Regional Police Service, a case that will examine the procedural protections and constitutional rights owed to individuals with non-conviction records that are retained and disclosed by local police forces. Read the CCLA’s factum.
Police run hundreds of thousands – perhaps millions – of record checks every year. Most of these checks are used to inform employment and volunteer hiring decisions. They are also frequently performed in connection with adoptions, foster care applications and travel. Contrary to popular belief, however, the information that is revealed in these background checks is not limited to criminal convictions. A wide range of “non-conviction” records can be disclosed, including information about criminal charges that were withdrawn, cases an individual was found not guilty, or even complaints where charges were never laid. Even non-criminal interactions, such as experiences with police due to mental health needs, are recorded in police databases and may show up on background checks.
Across Canada individuals who have never been found guilty of any offence are prejudiced by these non-conviction records. Disclosing this type of sensitive information may undermine the presumption of innocence. Employers who receive ‘negative’ records checks may not fully understand the distinctions between different types of police information, creating a significant risk that non-conviction records will be misconstrued as a clear indication of criminal conduct. In the case of mental health records, this information may lead to illegal discrimination against those with mental disabilities.
In the case before the Ontario Court of Appeal, J.N. is challenging the Durham Regional Police Service’s refusal to remove a withdrawn charge from her background check. J.N. is a woman in her 50s who, in 2006, was involved with in a family dispute involving her ill, 91-year-old father. A complaint was made and eventually J.N. was charged with assault. The charge was withdrawn before trial. A few years later J.N. applied for a media relations position in a school board. In order to be hired she was required to provide a Vulnerable Sector Background Check from her local police station. Although she had never been found guilty of any crime, the police report came back showing the 2006 assault charge. J.N. requested the charge be removed, but her request was denied without explanation. The lower court found that J.N.’s procedural rights had been violated. The Durham Regional Police Service has appealed that ruling.
To read the lower court’s decision click here.
To read CCLA’s factum before the Court of Appeal click here.
By Abby Deshman on May 14, 2012
The CCLA will appear before the Supreme Court to argue that the private, personal information in our communication devices must be protected by the Charter – regardless of whether they are owned personally, or provided through our workplaces.
In R. v. Cole the Court will examine whether an individual whose work computer may be accessed by the employer for maintenance purposes still has a reasonable expectation of privacy regarding the information on the computer. If the Supreme Court finds that an employee does not have a reasonable expectation of privacy in a work computer, phone, or other communication device, an employer will be able to unilaterally decide when to respect individual employee privacy and when to hand all an employee’s information over to the police.
CCLA will argue that employers should not be able to waive their employee’s privacy rights. Work computers and phones are frequently used for personal projects, phone calls and emails. Absent exigent circumstances, warrantless state access to this sensitive and personal information is an intrusive and extensive interference with the privacy interests enshrined in s. 8 of the Charter.
To read CCLA’s factum click here
Case background
The case, on appeal from the Ontario Court of Appeal, arose when the respondent, a high school teacher, had his school laptop’s hard drive remotely accessed by a computer technician employed by the school. The technician accessed a hidden folder on the respondent’s hard drive to perform a virus scan and discovered nude photographs of a young female student. The images had been e-mailed by the student to another student, which the respondent accessed through the student’s email account in the course of his supervisory duties. The school’s technicians provided a copy of the photographs along with the respondent’s computer to police. The police searched the laptop and browsing history without obtaining a warrant and charged the respondent with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded all the evidence from the laptop on the basis that the respondent’s s. 8 Charter rights were breached. The summary conviction appeal judge overturned the decision on the ground that the teacher had no reasonable expectation of privacy regarding the laptop’s comments. The Ontario Court of Appeal allowed the appeal and excluded evidence from the laptop, as it was obtained by police without first obtaining a proper warrant and thereby violated the respondent’s Charter rights.
By Abby Deshman on May 10, 2012
The Canadian Civil Liberties Association welcomes the Ontario Court of Appeal’s ruling in Peel (Police) v. Ontario (Special Investigations Unit) (formerly Metcalf v. Scott), which found that Ontario’s Special Investigations Unit (“SIU”) had the authority to investigate the alleged crimes of a former Peel region police officer. CCLA intervened in this case as part of a coalition of public interest organizations to argue that the SIU, which conducts investigations of police incidents that have resulted in death, serious injury, or allegations of sexual assault, does have the jurisdiction to investigate incidents involving police officers who have since retired. In CCLA’s view, ensuring that the SIU has jurisdiction over such cases will enhance public confidence in the investigative process and the police; the judgment issued by the Court of Appeal will help maintain the integrity of Ontario’s system of police accountability.
Read more…
By Communications on May 9, 2012
Earlier this morning the Alberta Court of Appeal released its decision in the Pridgen v. University of Calgary case. The case raised questions around whether students at public universities were entitled to freedom of expression on social networking sites, for the purpose of criticizing their instructors and educational institutions. In this case, two brothers, Keith and Steven Pridgen, were disciplined by the University of Calgary for speaking out against their instructor on Facebook. The students were given two years of academic probation, asked to write an unqualified letter of apology to the professor, and told to refrain from posting any material that could be defamatory of the professor or other members of the university. The students argued that the University acted unreasonably and infringed their right to freedom of expression guaranteed in the Charter.
The lower court agreed with the students, noting that the students’ freedom of expression had been violated and the university had made an unreasonable decision under administrative law principles. The University of Calgary appealed the judge’s ruling, arguing that it had not acted unreasonably. The university further argued that it was immune to Charter scrutiny as institutional independence and academic freedom shields Canadian universities from the obligation to protect and respect students’ Charter rights, including freedom of expression. The CCLA intervened in the Alberta Court of Appeal to argue the importance of protecting the freedom of expression of students, the application of the Charter to the university’s actions in this case, and also that applying Charter values would in fact enhance the academic freedom considered crucial in post-secondary settings.
The Court of Appeal released three concurring judgments today. All three judges dismissed the University of Calgary’s appeal and found that the university’s Review Committee did indeed act unreasonably. Further, Justice Paperny, in her written reasons, found that the Charter did apply to the disciplinary proceedings undertaken by the university. She emphasized that academic freedom and freedom of expression went hand in hand – an argument highlighted by the CCLA. Justice O’Ferrall also reasoned that the university ought to have considered whether its discipline violated the students’ rights to freedoms of expression and association, noting that they are common law civil liberties concepts that predate the Charter. The Court of Appeal therefore upheld the decision of the lower court to quash (set aside) the University of Calgary’s Review Committee’s disciplinary measures against the Pridgen brothers.
>> Click here to read more about CCLA’s involvement in the case.
>> Click here to read CCLA’s factum.
>> Click here to read the Court of Appeal decision.
By Communications on May 9, 2012
The Canadian Civil Liberties Association is set to appear before the Supreme Court in A.B. v. Bragg Communications Inc., a case that raises 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 face 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.
On May 10, 2012, the Supreme Court will hear oral arguments in the case. It must determine the proper balance between the transparency of court proceedings and the privacy of complainants in cases of this nature. CCLA will appear to defend the existing standard, the Dagenais/Mentuck test, which requires the party seeking a judicial order that will limit freedom of expression or the press (such as a publication ban or anonymity order), to provide clear and specific evidence that serious harm would flow from publication of the information which he or she seeks to conceal. CCLA will argue that the existing test protects two important public interests – open courts and access to justice – and that it should continue to be applied with a high evidentiary standard, and without blanket exemptions.
CCLA will also argue that an anonymity order is more appropriate in this case than a publication ban (or both) for reconciling open courts, freedom of expression, privacy, and access to justice. Confidentiality could protect A.B.’s privacy and allow her to proceed, without concealing from the public the details of the fake profile. This key information would allow the public access to the speech whose permissibility could be on the line in a defamation case; it would also allow others who may be targeted in a similar way to consider whether the case applies to their situation; and, finally, it could enhance the broader social response to the problem of bullying.
Iris Fischer and Dustin Kenall, of Blake, Cassels & Graydon LLP, are representing the Canadian Civil Liberties Association in this case.
>> Click here to read CCLA’s factum.
By Abby Deshman on May 9, 2012
CCLA appeared before the Ontario Court of Appeal in R. v. Mernagh to argue that the government must ensure that ill patients who would benefit from the use of marijuana for medical purposes have practical access to the drug.
The government’s current regulatory regime, set out under the Marihuana Medical Access Regulations, allows ill Canadian suffering from grave and debilitating illnesses access to a legal source of dried marihuana for medical purposes. The Regulations require a declaration from medical practitioners supporting a patient’s request to use medical marijuana, where doctors must declare that all conventional treatments for the patient’s symptoms have been ineffective or medically inappropriate.
In the 2011 decision in R v Mernagh, Justice Taliano ruled that the government program established in 2000 2001 to regulate the medical use of marijuana was ineffective and struck down the Regulations as unconstitutional. The judge found that medical practitioners were boycotting the program en masse, therefore making extremely difficult, if not impossible, for seriously ill patients to access marijuana for medical purposes. Medical practitioners have expressed concern that they have been made the gatekeepers to access medical marijuana considering the relative lack of research and education around the medical benefits of the controversial drug. There are currently no legal alternatives to access medical marijuana outside of the government’s regulatory scheme. The Federal government appealed Justice Taliano’s decision.
CCLA intervened to argue that effectively denying ill individuals access to medicine, whether through criminalization or through a program that makes it practically difficult or impossible to access medical marijuana, violates of s. 7 of the Charter. Jean-Marc Leclerc of Sotos LLP, together with Christi Hunter of Heller Rubel LLP, who represented CCLA before the Court of Appeal, emphasized that this case is about providing assistance to people who are seriously ill: “it is about seriously sick individuals who want access to medication that could benefit them significantly.” Individuals suffering under the current regulations include persons with cancer and osteoarthritis – patients who are oftenlooking for an alternative to addictive opiates to relieve their suffering, but are currently facing often insurmountable obstacles under the current regime.
To read CCLA’s factum click here.
By Communications on March 26, 2012
The Canadian Civil Liberties Association generally supports the decision of the Ontario Court of Appeal. The CCLA believes the decision goes some way towards making the lives of prostitutes safer.
Specifically, CCLA agrees with the decision to strike down the common bawdy house provision. The evidence before the Court of Appeal was clear that persons engaged in prostitution are safer working indoors than on the street.
CCLA also generally agrees with the Court of Appeal’s decision to read into the living on the avails provision an exception for non-exploitative commercial relationships between prostitutes and bodyguards, drivers and other persons who could assist prostitutes to remain safer.
However, CCLA agrees with the minority decision of Justices MacPherson and Cronk that equality values should inform the analysis of gross disproportionality with respect to the communicating provisions. CCLA strongly supports the view that persons, especially vulnerable persons who face pre-existing disadvantages, should be able to protect themselves. This is especially true of street-based prostitutes who the minority recognized have “very few alternative means of protecting themsevlves” from violence (para. 360). The safety of especially vulnerable persons engaged in prostitution greatly outweighs the government’s objective of limiting social nuisance.
Finally, CCLA is pleased that the Court of Appeal accepted its submission that in the case of legislation which interferes with a person’s life, liberty or security of the person, there is no need to prove causation directly. That is, the applicant need not show that the impugned law directly caused the harm to the applicant’s life, liberty or security of the person.
By Communications on March 24, 2012
On March 23rd the Court released its decision in the case of Doré v. Bernard, which considered freedom of expression in the context of a lawyer being disciplined for comments he made about a judge in a private letter to that judge. CCLA intervened in the case to argue that lawyers not only have a right, but also a duty to comment on and, in some cases, criticize the way in which justice is administered. The Court’s decision had both positive and negative elements. While they helpfully underscored the fundamental importance of open and forceful criticism of our public institutions, as well as the right—and, arguably, duty—that lawyers have in speaking their minds freely, the court found that Mr. Doré’s reprimand was justified because lawyers are required by their profession to criticise with “dignified restraint,” and the private letter lacked “objectivity, moderation and dignity.” As lawyers are uniquely positioned in the justice system, they often have important vantage points from which to speak to the effectiveness and fairness of the system and its actors. Responsible criticism of the judicial system should be encouraged—not punished with professional sanctions—because of the fundamental democratic role such expression plays.
By Abby Deshman on March 22, 2012
On March 22nd, the Supreme Court released their decision in R. v. Ladue (read the decision here), a case about sentencing Aboriginal offenders (read CCLA’s factum here). Over a decade ago, the Supreme Court recognized that racism against Aboriginal people within Canada had “translated into systemic discrimination in the criminal justice system,” with the result that Aboriginal Canadians were “drastic[ally] overrepresent[ed] … within both the Canadian prison population and the criminal justice system.” Parliament had also recognized this “crisis in the Canadian criminal justice system” and responded by enacting a specific sentencing provision in the Criminal Code which placed a particular emphasis on the circumstances of aboriginal offenders and alternatives to incarceration.
In Ladue the Supreme Court strongly affirmed that when judges sentence Aboriginal offenders they must take into account “(1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.” The Supreme Court specifically addressed the concern that this would create a race-based discount on sentencing, stating that the courts’ duty was not to artificially reduce incarceration rates, but rather to come to a truly fit and proper sentence for each individual that appeared before them. In the case of Aboriginal offenders, a just sentence cannot ignore the history of colonialism, systemic discrimination, and its impact on this community and individual offenders. Similar considerations should also be taken into account with non-Aboriginal offenders, when they apply. As the Manitoba Court of Appeal has said in R. v. Vermette, “to achieve true equality sometimes different people must be treated differently.”
By Abby Deshman on March 13, 2012
Between 2006 and 2009 about one third of Ontario Crown offices asked police to conduct background checks on potential jurors by searching confidential police databases. Often the information they obtained was used to inform the prosecution’s jury selections and was not disclosed to defence counsel. In a 2009 report the Ontario Information and Privacy Commissioner found that the actions of Crown counsel and police had violated thousands of individuals’ privacy rights, and policy changes were subsequently put in place to ensure that all background checks were strictly limited to whether or not an individual was competent, under the law, to serve on a jury.
On March 14th and 15th, 2012 the Supreme Court of Canada will hear arguments stemming from five criminal cases where jury vetting took place prior to trial. The CCLA will appear before the Court to argue that, when determining whether there has been a breach of the Charter, the Court should consider not only the fair trial rights of the accused, but also the impact of government conduct on the privacy rights of thousands of Canadians. State actions contravened government policy, privacy laws, jury list distribution rules, and disclosure obligations. In the CCLA’s view, the repeated violation of thousands of potential jurors’ privacy rights and the use of confidential personal information to inform prosecutorial jury selections constituted an abuse of process and a violation of the Charter.
To read CCLA’s factum before the Supreme Court click here.
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