By Dora Chan on June 14, 2013
The CCLA is extremely pleased with the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union, Local 30 v. Irving Pulp and Paper, a case that examined whether employers can impose random breathalyzer testing in unionized workplaces. The majority of the Supreme Court affirmed that mandatory, random and unannounced substance testing for all employees is an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace. Even when a workplace is ‘dangerous’ due to the type of jobs being performed, that is just the beginning of the inquiry – substantial intrusions into employees’ privacy must still be balanced against the safety gains the employer can reasonably show to result from the proposed police.
The CCLA argued that breathalyzer testing is a privacy invasion and that employers should not be able to unilaterally intrude into employees’ privacy based only on theoretical risks to safety. The decision of the Court aligns with the CCLA’s position that employers must prove that the benefits of random, mandatory substance testing in the workplace are proportionate to the negative effects of substance testing on employee privacy. The Court upheld the decision of the board of labour arbitrators, which struck down Irving Pulp and Paper’s random alcohol testing program because the employer had not established any significant degree of incremental safety risk attributable to employee alcohol use.
The CCLA is particularly pleased that the Court recognized that all forms of coercive bodily testing invade individual privacy and dignity. The Court affirmed that the seizure of bodily samples – whether the goal is to search for drugs or alcohol use – is always highly intrusive and must meet stringent standards and safeguards to satisfy constitutional requirements.
To read CCLA’s factum in the case, click here.
To read the full Supreme Court decision, click here.
By Cara Zwibel on June 6, 2013
On June 13, 2013 the Supreme Court of Canada will hear arguments in the case of Bernard v. Attorney General of Canada et al. Ms. Bernard is a federal government employee who will argue that her personal contact information should not be released to the union to which she is compelled to pay dues as a federal employee. Ms. Bernard has chosen not to join the union as a member and believes that her employer’s sharing of this information with the union is a breach of her privacy and a form of forced association. The union argues that this information is required for it to carry out the legal duties it has under labour relations laws, even to non-union members. CCLA is intervening in the case to argue that the unions needs and legal obligations must be balanced against the privacy rights of employees. In addition, CCLA will argue that while freedom from association is protected by the Canadian Charter of Rights and Freedoms, the simple sharing of contact information is not a form of forced association.
The CCLA will argue that the freedom not to associate is triggered when a person is compelled to adopt views he or she disagrees with or is forced into a situation where it appears that he or she shares ideological views that he/she does not. Personal information should be strongly safeguarded, but circumstances should and do influence when it is reasonable to share such information. In a workplace where employees are unionized, the employer, employee and union are in a tripartite relationship. Since employers should not be involved in coordinating discussions between employees and unions, and given the obligations that unions owe to employees, the sharing of contact information is not a breach of privacy under the federal Privacy Act. The use of the information by the union is consistent with the reason why it was collected and, as a result, the consent of the person to whom the information relates is not necessary. However, CCLA recognizes the importance of respecting personal privacy and believes that unions must take appropriate measures to protect private information and how it is disclosed or used. Reasonable requests by an individual about how they prefer to be contact by the union should be respected.
Read CCLA’s factum here.
By Cara Zwibel on June 6, 2013
In 2012, the Alberta Court of Appeal ruled that since individuals crossing a picket line appeared in public, they had essentially waived their right to privacy. The case arose when casino workers went on strike and videotaped the picket line. This is a common union practice and is done for various reasons including discouraging people from crossing the line, recording any incidents that occur on the line, and for future training purposes, among others. The union posted signs advising members of the public that the line was being recorded and that the images captured might appear online (although this did not happen). Some people lodged complaints about this practice to Alberta’s Privacy Commissioner and the union argued that preventing them from recording activities on the line was a violation of freedom of expression.
CCLA is intervening in the case to ask the Supreme Court of Canada to take an approach that takes both freedom of expression and the right to privacy seriously. We will urge the Supreme Court to take a more nuanced view of the intersection of privacy rights and freedom of expression than was taken by the Alberta Court of Appeal. Since neither right is absolute, neither one should prevail at the other’s expense.
The CCLA will argue that simply stepping outside does not mean a person has abandoned all rights to privacy. Rather, CCLA proposes a weighing of the rights by considering what kind of personal information is involved, the purpose of the expression, the way in which the information is recorded, stored, or disseminated, and the possibility of implied consent where notice that personal information is being recorded has been given. These factors should be considered separately with respect to the collection of the information, it use, and its disclosure. Each of these might involve different considerations and the balance between expression and privacy may need to be struck differently. This type of analysis is important because a great deal of intensely private information is revealed in public every day, including for example, what religion someone subscribes to just by entering the doors of a house of worship, or that someone is a recovering alcoholic when they go to an AA meeting in a community centre. Finally, CCLA will argue that the exemption for journalistic activity in Alberta’s Personal Information Protection Act should not be confined solely to traditional media, particularly in light of the citizen journalist movement and the increasing popularity of blogs and non-traditional news sources.
Read the CCLA’s factum here.
By Abby Deshman on April 19, 2013
The CCLA is before the Supreme Court today, arguing that police officers involved in an investigation by the Special Investigations Unit (SIU) into the use of force resulting in death or serious injury to a civilian are not entitled to the assistance of legal counsel in the preparation of their duty notes of the incident. Duty notes are notes that are prepared in the normal course of an officer’s day on the job. When there has been a police-involved death or serious injury, witness officers must hand their notes in to the SIU, which is the independent body that conducts criminal investigations into such occurrences. It is essential to the integrity of the investigation and public confidence in the process that officers’ notes be contemporaneous and independent, thereby ensuring that they are accurate and unedited accounts of what occurred. Allowing lawyers to review, edit, or advise police officers on the content of their notes would significantly undermine the independent oversight regime.
To read the CCLA’s factum before the Supreme Court click here.
To read the Court of Appeal’s decision click here.
To read the CCLA’s factum before the Court of Appeal click here.
By Abby Deshman on April 5, 2013
The Supreme Court has released its decision in Penner v. NRPSB, a case that examined whether a finding by the police complaints system can effectively terminate an ongoing or subsequent civil action. The Supreme Court affirmed that, due significant differences between the two legal procedures, it would be a “serious affront to basic principles of fairness” to allow a finding in a police complaint hearing – which is presided over by the Chief of Police or his or her delegate – end a civil suit suing the police force. The Ontario Court of Appeal had decided that, because the police discipline complaint brought by Mr. Penner had been dismissed, he could no longer pursue his claim in a civil action for damages. CCLA welcome’s the Supreme Court’s majority decision overturning that ruling.
An individual who has been mistreated by the police has a number of remedies:
- A victim may complain to a police complaints system – a system that is designed to discipline police officers for misconduct through employment-related sanctions. In the Ontario police complaints system, the Chief of Police is the one who is ultimately responsible for conducting a hearing into alleged police misconduct.
- A victim may also sue the police for damages through a civil action, claiming that his or her rights have been violated and demanding compensation for the injuries suffered. In a civil suit, an independent judge is the ultimate arbiter of whether or not the police force is liable.
CCLA was extremely concerned about the implications of the Court of Appeal’s judgment, which would have deprived individuals of essential remedies for police misconduct and made the Chief of Police an adjudicator not only of internal discipline matters, but of the civil liability of the police force as well. The resulting conflict of interest would have seriously undermined public confidence in the police complaint and discipline process. The Association intervened in the case to ensure that the avenues for victims to pursue redress for police misconduct remained meaningful and viable.
To read the CCLA’s factum click here.
To read the Supreme Court’s decision click here.
By Abby Deshman on March 27, 2013
The CCLA is extremely pleased with the Supreme Court’s decision in R. v. Telus, which upholds strong privacy protections for the millions of Canadians who communicate via text message. The Criminal Code contains comprehensive provisions on intercepting private communication, giving individuals heightened privacy protection when police apply for a wiretap authorization. The Canadian Civil Liberties Association intervened in Telus to ensure that these privacy protections remain meaningful in an era dominated by cell phones and text messaging. The CCLA argued that text messages that are surreptitiously obtained from a cell phone service provider in the midst of the transmission process must be subject to the protections offered to wiretaps in the Criminal Code.
The decision affirms that there is no practical difference between texting and a traditional phone conversation, nor should differences inherent in new technology determine the scope of protection afforded to private communications. Police may not use technical differences in how text messages are transmitted from one person to another to avoid the more rigorous scrutiny of a wiretap authorization: if law enforcement wants to access text messages that will be sent from one person to another, they need to get a wiretap authorization.
Case background
Over the past few years Telus, the cell phone provider, has received tens of thousands of search warrants, production orders and interception authorizations from police requiring them to hand over customer information and communications. Usually, warrants and production orders require cell phone providers to produce past communications, and interception orders allow for real-time surveillance. In March 2010, however, the police served Telus with a General Warrant and Assistance Order requiring the company to produce all text messages to and from a specific customer over the next 14 days. The police argued that, because Telus stored text messages for a period of time as part of their transmission process, this was not a wiretap. In practice, however, this type of warrant would give police prospective authorization to have daily, surreptitious access to all private messages, at times allowing law enforcement to read messages before the text had been received or read by the intended recipient.
The majority of the Supreme Court ruled that, under these circumstances, a General Warrant is not available and police must obtain an authorization to intercept private communications in order to access these types of messages.
To read CCLA’s factum click here.
To read the Supreme Court’s decision click here.
By Noa Mendelsohn Aviv on March 18, 2013
CCLA welcomes the decision released today by the Supreme Court of Canada in R. v. Pham, affirming the central role that the principle of individualized sentencing should play: that the personal circumstances of an offender are relevant in determining their sentence. The central question on appeal was whether a judge should exercise his or her discretion to take collateral immigration consequences into account in the sentencing process, namely the loss of a right to appeal a deportation order. Under the Immigration and Refugee Protection Act, a permanent resident sentenced to a term of imprisonment of two years or more loses the right to appeal a removal order issued against him or her.
Mr. Pham, a Vietnamese citizen and permanent resident of Canada, was charged and convicted with unlawfully producing marijuana and possessing it for the purposes of trafficking. At his sentencing hearing, he was sentenced to two years’ imprisonment triggering a loss of appeal rights against a removal order issued against him. Neither the Crown nor Mr. Pham’s counsel had raised this issue before the sentencing judge. On appeal, however, the Crown conceded that it would have agreed to a sentence of two years less one day. Despite this, the majority of the Alberta Court of Appeal denied Mr. Pham’s appeal to have his sentence reduced by one day. The Supreme Court reversed this decision, allowing the appeal and reducing Mr. Pham’s sentence from two years to two years less a day. The Court noted that collateral immigration consequences may be just as relevant in sentencing as the collateral consequences of other legislation or of circumstances specific to the offender.
CCLA appeared before the Court to argue that the collateral immigration consequences of a sentence should be considered at sentencing and that the criminal law should be flexible enough to allow the judiciary to fashion appropriate and individualized responses to criminal conduct on a case-by-case basis. CCLA also argued that the failure to consider the collateral immigration consequences of a sentence for a non-citizen could be a violation of the right to equality under the Charter. The Supreme Court affirmed, similarly, that “if the personal circumstances of the offender are different, different sentences will be justified.”
CCLA thanks Matthew S. Estabrooks and D. Lynne Watt of Gowlings Ottawa for their excellent work in this case.
For the Supreme Court’s decision, click here.
For CCLA’s factum in the case, click here.
By Noa Mendelsohn Aviv on March 11, 2013
CCLA welcomes the decision of the Federal Court of Appeal in the First Nations Child and Family Caring Society (FNCS) v. Canada decision released today. The complaint by FNCS alleges that the federal government has discriminated against First Nations children on reserve by under-funding child welfare services provided to them. The federal government argued that their funding of these services could not be discriminatory, as they did not provide comparable funding to any other children in Canada. FNCS, the Assembly of First Nations, Chiefs of Ontario, Amnesty International, and the Canadian Human Rights Commission were parties in the case. These parties disagreed with the government’s position. CCLA intervened to ensure that a purposive understanding of equality was maintained in line with equality jurisprudence. The Federal Court of Appeal supported such a conclusion. The human rights complaint on the merits is proceeding at the Canadian Human Rights Tribunal.
CCLA was represented at the Federal Court of Appeal by Chris Wayland and Steven Tanner of McCarthys.
To read the decision, click here.
To read CCLA”s factum click here
For more on the human rights complaint, the history of the complaint, its progress, legal documents and more, click here.
By Cara Zwibel on February 27, 2013
The Supreme Court of Canada has rendered its long-awaited decision in Saskatchewan Human Rights Commission v. William Whatcott, et al. and upheld the constitutionality of hate speech provisions in the Saskatchewan Human Rights Code. The CCLA had intervened in the case to argue that the section – s. 14(1)(b) – is unconstitutional under section 2(b) of the Canadian Charter of Rights and Freedoms, as it acts as an overbroad and unjustifiable limit on freedom of expression. The Supreme Court did not accept this argument and said that while hate speech provisions do limit freedom of expression, the limit is justified in light of the goals of promoting the inherent dignity and equal rights of all and discouraging discrimination. The Court attempted to clarify and slightly modify the definition of “hatred” to provide tribunals and courts with more guidance when applying hate speech provisions. It held that hate speech provisions should be applied objectively, requiring tribunals to determine “whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred.” The Court also held that hatred is to be interpreted as only extreme emotions of “detestation” and “vilification”. Finally, the focus should be on the effects of the expression. The question of the speaker’s intent and/or the sincerity of their belief is not relevant.
The appeal arises from the distribution of three flyers by William Whatcott in 2001 and 2002 that contained statements about homosexuality and the morality of certain types of sexual behaviour in often crude, confrontational, and polemical terms. While CCLA denounces and condemns the content of Mr. Whatcott’s flyers, we argued that the hate speech provisions are both vague and overly broad, that they chill freedom of expression and that the experience with these provisions over the years has shown them to be unworkable. The CCLA continues to believe that a mature democracy requires the least restriction on the expressive rights of its citizens and advocates a position in favour of the vigilant and principled protection of freedom of expression, including offensive statements of opinion. Indeed, the right to express an unpopular or non-mainstream opinion remains an important tool in the arsenal of equality-seeking groups. CCLA will continue to promote and protect freedom of expression for all.
Read CCLA’s factum in the Whatcott case here.
Read the Supreme Court of Canada’s decision here.
See a webcast of the Supreme Court hearing here.
By Communications on February 22, 2013
February 22, 2013
IMMEDIATE RELEASE
CANADIAN GOVERNMENT FACES ALLEGATIONS OF DISCRIMINATION TOWARDS FIRST NATIONS CHILDREN AT CANADIAN HUMAN RIGHTS TRIBUNAL
On February 25, 2013, the Government of Canada will appear before the Canadian Human Rights Tribunal to face 14 weeks of hearings to determine if its flawed and inequitable First Nations child and family services program is discriminatory.
The federal government controls and funds child and family services on reserves whereas the provinces and territories do so for other children. The Auditor General of Canada and other expert reports confirm that the federal government’s funding and program approaches to child and family services, including the more recent enhanced funding approach, are flawed and inequitable.
There is clear evidence linking the inequality in services to hardship among First Nations families and to the growing numbers of First Nations children in care. Dr. Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society said, “This generation of First Nations children deserve an equal chance to grow up safely at home – something the Federal Government deprived many of their parents and grandparents of during the residential school era.”
The complaint was filed with the Canadian Human Rights Commission in 2007 by the Assembly of First Nations and First Nations Child and Family Caring Society after the Government of Canada failed to implement two evidence informed solutions to address the problem. Since then the Government of Canada has spent over 3 million dollars in its numerous unsuccessful efforts to get the case dismissed.
Alex Neve, Secretary General of Amnesty International Canada, said, “This case is important for everyone concerned about human rights. It’s outcome will affect both the quality of vitally important services available to First Nations children as well as the integrity of human rights protection in Canada.”
Nathalie Des Rosiers, General Counsel for the Canadian Civil Liberties Association (CCLA) says “It is very important that this case move forward, and that issues of discrimination be promptly addressed. What is at stake in this case is the integrity of our human rights regime and its ability to respond meaningfully to allegations of discrimination.”
>> The “I Am a Witness” page of the First Nations Child & Family Caring Society of Canada, which sets out a timeline of the case, the legal documents, and relevant reports.
>> CCLA’s intervention at the Federal Court of Appeal
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Craig Benjamin
Amnesty International Canada
613-744-7667, ext 235
Noa Mendelsohn Aviv
Canadian Civil Liberties Association
416-363-0321 ext 226 and 647-780-9802
mendelsohnaviv@ccla.org
Cindy Blackstock, PhD
First Nations Child and Family Caring Society
cblackst@fncaringsociety.com or 613 230-5885 (only available for interview until 9:00 a.m. on Monday, February 25, 2013) After that time please contact Paul Champ, legal counsel for the First Nations Child and Family Caring Society at pchamp@champlaw.ca
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