The Supreme Court of Canada has rendered its decision in the case of S.L. v. Commission scolaire des Chenes, a case in which parents sought an exemption for their children from Quebec’s mandatory Ethics and Religious Culture (ERC) course. The Supreme Court found that the refusal to grant an exemption did not violate the parents’ freedom of religion in this case. While the Court accepted that the parents had a sincere belief in the need to pass on the precepts of their religion to their children, the Court found that the ERC course did not interfere with this obligation in an objective way and therefore freedom of religion was not infringed.
CCLA intervened in this case to ensure that ‘sincerity of belief’ remains the approach to assessing freedom of religion claims. While the Court did affirm this test and rejected relying on religious experts or leaders, the Court’s statement that there is a need to show an infringement on an objective basis is somewhat concerning as it has the potential to dilute the protection of freedom of religion under the Charter. It remains to be seen what impact this decision will have on the protection of freedom of religion generally and ongoing issues around religion in the schools.
The CCLA has been granted leave to intervene in the case of Mitchell v. Jackman in the Supreme Court of Newfoundland and Labrador. While the case involves a challenge to the election results in a particular Newfoundland riding, CCLA’s interest in the case is related to the constitutionality of the special ballot provisions in Newfoundland’s Elections Act. These ballot provisions are designed to facilitate voting for people who will not be available on voting day or on the days when advance polls are open, and this is an important and laudable objective. However, they create an odd situation where voters can cast ballots before the election has actually been called. During this period candidates cannot be nominated, they cannot campaign, and fundraising and advertising restrictions that exist during the campaign period have not yet kicked in. This means that voters will not know who their candidates are and will be denied the opportunity to make an informed choice and meaningfully participate in the election.
The right to vote is a fundmanetal right protected by the Canadian Charter of Rights and Freedoms. It includes not only the right to cast a ballot, but the right to participate meaningfully in the electoral process. CCLA will be making submissions to defend the rights of voters and ensure that this important right is given robust protection.
A civil liberties group intervenes in the Burin election challenge (CBC, February 15, 2012)
The Supreme Court of Canada is today hearing arguments on the test for public interest standing in the case of Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society et al. This case is a challenge brought by a group of sex workers from Vancouver to the prostitution-related offences under the Criminal Code. The case has not been considered on its merits because the Attorney General of Canada has argued that the sex workers’ group does not have standing to raise the issue. The issue of standing asks courts to “decide when to decide” a case. The Attorney General’s argument in this case is, in part, that sex workers charged with the prostitution offences can mount a legal challenge and, as a result, this public interest group should not be permitted to raise a broader constitutional challenge to the scheme that regulates sex work. The concern raised by the government is that allowing public interest litigants to routinely raise cases may overwhelm the courts or lead to decisions that are not properly grounded in a strong factual record.
CCLA was granted leave to intervene in the case and filed written submissions urging the Court to adopt a more liberal approach to public interest standing. CCLA’s submissions focused on the rights of all Canadians to constitutional laws and constitutional behaviour on the part of their government. Canadians face increasing challenges in accessing justice given the costs associated wtih litigation and the time that cases may consume. As a result, the Court should cease privileging private litigants and treating public interest litigation as exceptional.
CCLA counsel appeared before the Ontario Court of Appeal in two cases, R. v. Cuttell and R. v. Ward, to argue that Canadians have a reasonable expectation of privacy in their anonymous internet activity. Specifically, CCLA advocated that under the Charter police are generally required to obtain a warrant before they can access private subscriber information held by an Internet Service Provider.
An individual’s activities on the Internet can reveal highly personal and intimate information about them, providing considerable insight into the user’s interests, habits, predilections and, by implication, their very thoughts. Gaining access to otherwise private subscriber information pierces the anonymity that is usually supplied by an IP address. This step is the key to gaining access to a vast repository of highly personal information regarding an individual’s online activity. Section 8 of the Charter affords individuals the right to be free from unreasonable search and seizure. CCLA argued that, in order for the police to gain access to the subscriber information behind an IP address, absent exigent circumstances, they are constitutionally required to request a warrant before obtaining this private information.
Read CCLA’s submissions to the Ontario Court of Appeal here.
The Canadian Civil Liberties Association intervened in Penner v. NRPSB, a case before the Supreme Court of Canada that will examine whether a finding by the police complaints system can effectively terminate an ongoing or subsequent civil action.
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.
The Ontario Court of Appeal 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. This not only deprives individuals of essential remedies for police misconduct, but also makes the Chief of Police an adjudicator not only of internal discipline matters, but of the civil liability of the police force as well. Such a situation constitutes a conflict of interest and undermines public confidence in the police complaint and discipline process. CCLA believes that this is contrary to the public interest in ensuring police accountability and providing viable remedies for victims of police misconduct.
On December 13, 2011, the CCLA intervened at the Ontario Court of Appeal in the case of Metcalf v. Scott to argue that Ontario’s Special Investigations Unit (“SIU”) has the authority to investigate potentially criminal conduct committed by a police officer who has retired since the time of the incident. The SIU conducts investigations of police incidents that have resulted in death, serious injury, or allegations of sexual assault. In the CCLA’s view, ensuring that the SIU has jurisdiction over retired officers will enhance public confidence in the investigative process and the police. The CCLA is participating in this case as part of a coalition of public interest interveners seeking to ensure that Ontario’s system of police accountability is not eroded.
CCLA also intervened in this case before the Ontario Superior Court of Justice. In May the Superior Court agreed with CCLA and ruled that the SIU does have the jurisdiction to investigate retired officers. As the Court noted, “such a reading of the Act… enhances public confidence and trust in the administration of justice.” This is the judgment that is currently being challenged before the Ontario Court of Appeal.
To read a copy of the judgment of the Ontario Superior Court of Justice, click here.
To read a copy of the CCLA’s factum before the Ontario Superior Court of Justice, click here.
Lawyers representing the CCLA will be arguing in the Federal Court of Canada today in the case of Warman v. Lemire. This case concerns the constitutionality of the hate speech provisions in the Canadian Human Rights Act. In a ruling released in September 2009, the Canadian Human Rights Tribunal found that the Act’s hate speech sections were unconstitutional, and refused to apply the provisions. That decision is now being judicially reviewed in the Federal Court. It is one among several cases that will require courts to look at hate speech provisions in human rights statutes and determine whether they constitute unreasonable violations of freedom of expression as protected by the Canadian Charter. CCLA is intervening because of the breadth of these kinds of provisions and their capacity to chill speech, debate and dialogue.
In addition to the litigation that is ongoing on this issue, a private member’s bill has been introduced in Parliament that would repeal section 13 of the Canadian Human Rights Act, the very provision at issue in the Warman v. Lemire case.
The Supreme Court of Canada will consider an appeal which looks at the issue of whether a sexual assault complainant may testify in Court while wearing a niqab for religious reasons. The case, on appeal from the Ontario Court of Appeal, arose when one of the defendants in a sexual assault case claimed that his right to full answer and defence was infringed by the complainant, N.S., testifying while wearing her niqab (at the preliminary hearing). He argued that in order to effectively cross-examine the complainant, it is essential to be able to observe her demeanour. CCLA intervened in the Court of Appeal and was also granted leave to make written submissions at the Supreme Court of Canada.
CCLA has argued that religious freedoms must be respected and that allowing a woman to testify while wearing her niqab promotes trial fairness. CCLA has also pointed out ongoing concerns about the use and value of demeanour as an indicator of credibility. The Supreme Court will hear arguments in the case on December 8, 2011.
The CCLA is appearing in the Alberta Court of Appeal today in the case of Lund v. Boissoin, which considers the hate speech provisions under Alberta’s human rights code. The case concerns an opinion piece that was published by a newspaper and was strongly critical of those in the gay rights movement. A complaint was made and the Alberta Human Rights Commission Panel found that the opinion piece did constitute hate speech within the meaning of the statute. On appeal, the Alberta Court of Queen’s Bench overturned this decision. Adopting one of the arguments that CCLA had made in its intervention before the Court, the Judge found that the provision only applies to hateful expression that itself signals an intention to engage in discriminatory conduct or seeks to persuade others to do so in a way that makes it likely that prohibited discrimination will occur.
The CCLA is intervening at the Alberta Court of Appeal to urge the Court to uphold this interpretation to ensure that speech is not chilled. While the CCLA strongly repudiates the content of the opinion piece at issue in the case, freedom of expression is a core value in our democracy and the proper response to speech that is hateful or offensive is to denounce it, not silence it.
Read the CCLA’s factum in the Court of Appeal here.
Read about the CCLA’s prior involvement in the case here.
TORONTO, November 18, 2011 - The Canadian Civil Liberties Association (CCLA) has been granted leave to intervene in the Application brought by a group of individuals associated with Occupy Toronto. The Application was brought after the City of Toronto served Notices under the Trespass to Property Act on the group occupying St. James Park. Justice Brown granted the group a temporary stay and ordered that their Application would be heard on Friday, November 18.
The Application seeks to challenge the eviction notice on the basis that it violates protected constitutional rights including freedom of expression, peaceful assembly and association. In light of CCLA’s expertise in this area and its long history of intervening in cases that require reconciling competing rights and interests, the Court granted CCLA permission to intervene as a friend of the court, file written submissions and make brief oral argument in the hearing. CCLA’s written submissions in the case can be downloaded here.
CCLA has historically been active in standing up for the rights of Canadians to peacefully demonstrate and this work has continued with the occupations that are now taking place. Although municipalities across Canada are taking action to try to remove Occupy protestors, CCLA is concerned that the limits that cities seek to place on core expressive freedoms are not reasonable or justified.
Some municipalities appear to have simply decided that protests have gone on long enough and should cease. In a democracy, the right to protest does not end simply because it has become uncomfortable for some or because some have decided that the message has been heard. We are pleased that these issues will be considered by the courts and that the argument for robust protection of freedom of expression and peaceful assembly will be given due consideration.
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For more information, please contact:
Penelope Chester – pchester@ccla.org or media@ccla.org | 647 822 8764
