Court Cases

Recent Work

CCLA Defends Free Speech and Personal Autonomy at the Supreme Court

By 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.

CCLA Intervenes to Protect the Right to Vote

By 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.

CCLA concerned by Supreme Court judgment on police cell phone searches

By 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.

 

CCLA at Supreme Court on Assisted Suicide Case

By on October 15, 2014

Today the CCLA intervened before the Supreme Court of Canada in Carter v. Attorney General of Canada, a case that challenges the Criminal Code’s current prohibition on assisted suicide.  This is the second time that the highest court will consider the issue.  In 1993, the Supreme Court in Rodriguez held that the absolute ban on assisted death did not violate the Charter, by a 5-4 majority.

Ms. Carter and Ms. Taylor both suffered from intractable and progressive diseases and are now deceased. They, along with other applicants, brought a civil claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions that prohibit assisted suicide.  They succeeded at the B.C. Supreme Court, where the judge concluded that s. 241(b) of the Criminal Code violated the s. 15 equality rights of Gloria Taylor and the s. 7 life, liberty, and security of the person rights of Gloria Taylor, Lee Carter and Hollis Johnson, and that none of these infringements could be justified under s. 1 of the Canadian Charter of Rights and Freedoms.

On appeal, the B.C. Court of Appeal reversed the decision and held that s. 241(b) was constitutional. The judgment however, turned on the answer to a particular question about whether the lower court’s findings were wrong because of what the Supreme Court of Canada had decided years earlier in the Rodriguez case.   The Supreme Court of Canada granted leave to appeal and granted CCLA the opportunity to intervene in the case.

The CCLA appeared before the Court to argue that an absolute prohibition on assisted suicide restricts personal autonomy in a manner that unreasonably restricts the right to life, liberty, and security of the person, and supports striking down the relevant Criminal Code provision.  CCLA argues that the constitutional rights to life and liberty include personal autonomy and control of one’s bodily integrity. An absolute prohibition against physician-assisted suicide violates these rights.  It overrides the thoughtful and informed choices of terminally ill, suffering individuals, and denies them the the opportunity to preserve dignity and control over the final days of their life.

Read CCLA’s factum in the case here.

CCLA at Supreme Court on Important Freedom of Religion Case

By on October 14, 2014

The CCLA appeared before the Supreme Court of Canada as an intervener in the case of Mouvement laïque québécois, et al. v. City of Saguenay, et al. The appeal heard by the Court on October 14, 2014, centres on whether the recital of a prayer at the beginning of public city council meetings violates provisions of the Quebec charter of human rights and freedoms and, in particular, whether rights to equality and freedom of religion, are unjustifiably infringed.

Mr. Simoneau, a non-religious citizen of the respondent City of Saguenay attended the meetings of the municipal council. A municipal by-law allowed council members to stand and say a prayer at the start of council proceedings if they wished. Mr. Simoneau and the Mouvement laïque québécois filed an application against the City and its mayor with the province’s human rights tribunal alleging that they had violated Mr. Simoneau’s freedom of conscience and religion and his right to respect for his dignity (ss. 3, 4, 10, 11 and 15 of the Charter). They asked that the recitation of the prayer cease and that religious symbols be removed from the proceedings rooms. The tribunal allowed Mr. Simoneau’s application in part, but the Court of Appeal set aside the decision on the ground that the content of the prayer did not violate the duty of neutrality imposed on the City, and that even if the recitation of the prayer interfered with Mr. Simoneau’s moral values, the interference was trivial or insubstantial in the circumstances.

The CCLA’s position in the case is that State-sponsored religious coercion, in the form of the recital of a religious prayer at public city council meetings, violates the right to equality and freedom of religion and conscience, and that these violations cannot be justified under the either the Quebec or Canadian Charters.  There can be no justification for state compulsion in matters of belief, and the context of the particular case pointed to the bylaw’s clearly religious purpose and effect.

Read CCLA’s factum in the case here.

CCLA Argues there are Inadequate Safeguards for Person Detained under Ontario’s Mental Health Law

By on September 17, 2014

The case of P.S. v. Ontario concerns an individual detained for over 18 years in a maximum security mental health facility, despite a broad consensus that he does not need to be in maximum security, and significant evidence that he may not need to be in an institution at all and may be eligible for a community placement. Mr. S. is deaf and pre-lingual, however his disability and language needs were reportedly not accommodated by the institution, apparently leading to intense social isolation, lack of adequate assessment and treatments, and ultimately the lengthening of his detention.

CCLA intervened in this case to argue, before a 5 judge panel at the Ontario Court of Appeal: that there need to be adequate safeguards for people in involuntary detention under the Mental Health Act; that mental health detainees are entitled to Charter protection of their rights; that the Charter applies to non-government hospitals that function as detention facilities; and that the court must consider the compound nature of fundamental rights violations where applicable. CCLA’s submissions appeared to be of interest to the 5 judge panel, who referred to CCLA’s arguments a number of times during the hearing. CCLA is grateful to the work of counsel David Morritt and Eric Morgan (Oslers).

To read CCLA’s factum, click here.

CCLA to Intervene in Challenge to Prohibition on Assisted Suicide

By on September 4, 2014

CCLA has been granted leave to intervene in Lee Carter, et al. v Attorney General of Canada et al. This case, scheduled to be heard by the Supreme Court of Canada on October 15, 2014, is the second time the Supreme Court will consider the issue of decriminalizing assisted suicide-the first being the 1993 Rodriguez decision, where the court, in a 5-4 decision, upheld the absolute ban on assisted death.

Ms. Kay Carter and Ms. Gloria Taylor both suffered from intractable and progressive diseases and are now deceased. They, along with other applicants, brought a civil claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions that prohibit assisted suicide.  They succeeded at the B.C. Supreme Court, where the judge concluded that s. 241(b) of the Criminal Code violated the s. 15 equality rights of Gloria Taylor and the s. 7 life, liberty, and security of the person rights of Gloria Taylor, Lee Carter and Hollis Johnson, and that none of these infringements could be justified under s. 1 of the Canadian Charter of Rights and Freedoms.

On appeal, the B.C. Court of Appeal reversed the decision and held that s. 241(b) was constitutional. The judgment however, turned on the answer to a particular question about whether the lower court’s findings were wrong because of what the Supreme Court of Canada had decided years earlier in the Rodriguez case.   The Supreme Court of Canada granted leave to appeal and granted CCLA the opportunity to intervene in the case.

The CCLA is intervening in the case to argue that an absolute prohibition on assisted suicide restricts personal autonomy in a manner that unreasonably restricts the right to life, liberty, and security of the person, and supports striking down the relevant Criminal Code provision.  CCLA argues that the constitutional rights to life and liberty include personal autonomy and control of one’s bodily integrity. An absolute prohibition against physician-assisted suicide violates these rights.  It overrides the thoughtful and informed choices of terminally ill, suffering individuals, and denies them the the opportunity to preserve dignity and control over the final days of their life.

Read CCLA’s factum in the case here.

Appellate decision approves G20 class action

By on August 8, 2014

On August 6, 2014, the Ontario Divisional Court decided that hundreds of individuals who were detained and arrested in mass police cordons during the G20 can have their legal claims heard together as a class action.  Hundreds of those detained at the Eastern Avenue Detention Centre may also have their claims jointly heard as part of a related class. The Court’s decision recognizes the seriousness of the claims being brought forward and the alleged conduct of the police on that weekend in June 2010. As stated by Justice Nordheimer, who authored the unanimous decision:

“If the appellant’s central allegation is proven, the conduct of the police violated a basic tenet of how police in a free and democratic society are expected to conduct themselves. Their actions, if proven, constitute an egregious breach of the individual liberty interests of ordinary citizens. On this view of the respondent’s conduct, it is not hyperbole to see it as being akin to one of the hallmarks of a police state, where the suppression of speech, that is uncomfortable for those in positions of power, is made a prime objective of those whose job it is to police the public.”

CCLA filed evidence in support of the motion for certification, and has continued to be involved in other post-G20 accountability efforts including ongoing disciplinary proceedings against the senior Toronto Police Service officer who ordered several of the mass arrests. You can learn more about the ongoing class action, including who is included within the class, at http://www.g20classaction.ca/. To read more about CCLA’s actions before, during and after the 2010 G20 Summit click here.

Read the decision here.

Read the full press release from Klippensteins Barristers & Solicitors here.

CCLA welcomes Supreme Court’s restrictions on ‘Mr. Big’ technique

By on August 6, 2014

On Friday August 1st the Supreme Court released its decision in R v Hart, a case that examined whether the existing legal limits on a police investigative tactic known as “Mr. Big” were sufficient to protect individuals’ rights and ensure fair trials. The Court agreed with the position advanced by CCLA and a number of others that the existing limits on this particular police technique were not sufficient, and crafted a new more rigorous test aimed at ensuring that police activities in these undercover operations do not produce false confessions and are not abusive.

The “Mr. Big” tactic is a specific type of undercover police operation. Police target a suspect, befriending him or her and slowly involving the suspect into the activities of a fictitious criminal organization. The suspect is given financial rewards and friendship, with the promise of more money and support to come. Eventually, he or she is introduced to the crime boss – “Mr. Big” – who must approve the suspect’s involvement, and presses him or her for a confession to the unsolved crime.

As recognized by the Supreme Court, there are numerous dangers involved in this type of police operation: “Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats.” In short, it is an inherently coercive process that can result in false confessions. Introducing the confession in court also necessarily involves detailed testimony of the suspect’s willingness to commit other crimes and join a criminal organization – information that can easily prejudice a jury against the accused.

In recognition of these dangers, the Supreme Court established strong new rules governing the admissibility of Mr. Big confessions. These confessions will now presumptively be inadmissible, and it will be up to the Crown to prove that they are reliable enough to be used as evidence. The conduct of the police will also be scrutinized: “No matter how reliable the confession, the courts cannot condone state conduct – such as physical violence – that coerces the target of a Mr. Big operation into confessing.”

CCLA welcomes the newly restrictive rules governing these coercive police techniques.

To read CCLA’s factum before the Supreme Court click here.
To read the Supreme Court’s decision click here.

A Win at the Supreme Court on Internet Privacy

By on June 13, 2014

The Supreme Court of Canada has rendered its decision in R. v. Spencer, a case that considered the privacy interests that an individual has in Internet activities and affirmed that anonymity is a key component of the right to privacy.  The Court also clarified a point of long-standing disagreement between privacy advocates and law enforcement authorities, and concluded – unanimously – that police require judicial authorization to obtain subscriber information from internet service providers.  CCLA believes that the decision sends a clear signal that privacy rights exist in the digital world.

The  decision arose out of the case of Mr. Spencer, who was charged with possessing and distributing child pornography.  The police had information about an internet protocol (IP) address that had shared what was believed to be child pornography.  The police sought information about the subscriber associated with the IP address Mr. Spencer’s internet service provider.  The law enforcement request for information was purportedly made pursuant to a provision of the Personal Information Protection and Electronic Documents Act (PIPEDA), which is privacy legislation directed at protection of privacy in the private sector (i.e. information held by private entities).  The information was handed over without a production order (an order that is similar to a search warrant) and the police then sought and obtained a search warrant to enter Mr. Spencer’s home and search his computer.

The Supreme Court had to address the question of whether the request for information from the internet service provider was a “search” within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms.  The Court noted that while the basic information being sought (name, address and telephone number) appears mundane, the information that it would reveal about an individual – in particular, their activities online, was substantial.  The Court also laid out that the nature of the privacy interest at issue in the case had three different aspects: privacy as secrecy, privacy as control and privacy as anonymity.  The Court’s recognition of anonymity as a concept protected by section 8 echoed the arguments made in CCLA’s factum and may have wide-reaching implications for future cases.

The Court also had to consider whether Mr. Spencer had a reasonable expectation of privacy in the information that was obtained by the police (and the information that it revealed).  The Court considered the impact of PIPEDA as well as the terms of service governing the relationship between the internet service provider and its customers.  It concluded that these factors supported the existence of a reasonable expectation of privacy.  In dealing with the proper interpretation of PIPEDA, the Court held that the legislation does not allow the police to simply obtain information which is subject to a reasonable expectation of privacy, merely by asking.  In other words, PIPEDA does not create any search or seizure powers.

The Court concluded that Mr. Spencer’s Charter rights were violated but held that the evidence, on the facts of this case, should nevertheless be admitted.  It considered that the police did not act with wilful or flagrant disregard of the Charter and that the belief that they were acting lawfully was a reasonable one.  Given the seriousness of the offences, the Court held that it would bring the administration of justice into disrepute to exclude the evidence.

The implications of the decision are substantial, and may play a significant role in CCLA’s ongoing Charter challenge to PIPEDA.  In particular, the Court’s decision confirms CCLA’s view that PIPEDA is legislation to protect privacy, and cannot be used to undermine it.  CCLA was represented by Anil Kapoor and Lindsay Daviau of Kapoor Barristers.

Read the Court’s decision in R. v. Spencer here.

Read the CCLA’s factum in the case here.