By Noa Mendelsohn Aviv
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.
By Cara Zwibel
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.
By CCLA Events
on August 7, 2014
For more information, or to make accommodation requests for special needs, please contact Marianne Baker at 416-363-0321 ext. 221, or email email@example.com.
By CCLA Events
on July 23, 2014
July 24, 2014 – The CCLA eagerly awaits the release of Justice Iacobucci’s report tomorrow, Police Encounters with People in Crisis. The CCLA made written submissions, found here, and Executive Director and General Counsel Sukanya Pillay, participated in a round-table discussion with stakeholders. The report is the culmination of the Independent Review looking in to the issue of police use of force and interactions with people suffering from mental illness.
By Noa Mendelsohn Aviv
on July 9, 2014
CCLA welcomes the decision of the Federal Court, reinstating healthcare that had been provided for more than 50 years to refugee claimants and others seeking Canada’s protection. 2012 cuts to this coverage, according to today’s ruling, had the effect of denying these individuals funding for life-saving medications such as insulin and cardiac drugs, for basic pre-natal, post-natal and obstetric care, or in certain instances, for any medical care at all.
As to the impact on children, the court described the 2012 changes as cruel, and described, for example, what the cuts would mean for a child “screaming in pain because of an ear infection,” who would not be entitled to see a doctor or receive antibiotics. The impact would be far more severe for others. Indeed, the court concluded, the 2012 cuts would potentially jeopardize the health, safety and the very lives of “innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency.”
In addition, the court rejected stereotypical rationalizations for the healthcare cuts and discriminatory depictions of refugees as “bogus” or cheats. The court explained that children are innocent victims of family circumstances, and that individuals whose refugee claims ultimately fail may do so simply because of changing country circumstances or differing standards with respect to country conditions and safety.
In conclusion, the court held, the 2012 changes were discriminatory, and constituted “intentional targeting of an admittedly poor, vulnerable and disadvantaged group for adverse treatment,” thus violating sections 15 and 12 of the Charter of Rights and Freedoms.
CCLA welcomes the thoughtful and detailed decision of the Federal Court, that will restore healthcare for refugee claimants and others who are vulnerable and in need of protection.
To read CCLA’s 2012 letter to Minister Jason Kenney calling for him to rescind the cuts, see: http://ccla.org/2012/06/29/refugee-healthcare/ .
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 Abby Deshman
on February 4, 2013
The Ontario Court of Appeal has released its decision in R. v. Mernagh, a challenge to the constitutionality of the Medical Marijuana Access Regulations. The Regulations are supposed to allow ill Canadian suffering from serious, debilitating illnesses to access to a legal source of dried marihuana for medical purposes. Individuals’ experiences from across the country, however, strongly suggest that patients are having significant difficulty accessing the drug, largely because it can be very difficult to find doctors that are willing to sign the medical marijuana form required by the Regulations.
In the lower court’s 2011 decision, Justice Taliano ruled that the government program established in 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.
The Court of Appeal overturned the decision, largely because it found there were problems in the lower court’s factual findings and evidentiary record. The CCLA is concerned that the evidentiary burden the Court of Appeal has placed on defendants in similar situations – namely to find and pay a doctor to assess their individual circumstance and testify to their MMAR eligibility – will be too onerous for many individuals who are criminally charged after using marijuana to alleviate debilitating symptoms.
CCLA is also disappointed that the Court did not use this opportunity to change one of the most significant barriers to legally accessing medical marijuana – the requirement that doctors confirm that conventional treatments have been tried or considered, and found to be ineffective or medically inappropriate. This essentially requires patients to make marijuana a medication of last resort, and it can be a particularly difficult standard for individuals that have not been able to find or keep a primary physician. As was evidenced by Mr. Mernagh, new physicians may suggest retrying all ‘conventional’ treatments, including pharmaceuticals with debilitating side effects, before considering a patient’s request for marijuana. We do not believe that such a rigid regime is necessary to fulfill the government’s objectives, and will continue to watch for opportunities to ensure that ill individuals can effectively access their preferred treatment without risk of arrest or incarceration.
To read CCLA’s factum in this case click here.
To read the Court of Appeal’s decision click here.
on January 21, 2013
The coroner’s inquest into the death of Ashley Smith resumed in Toronto on Monday January 14th, 2013. An earlier inquest was discontinued after the retirement of the first coroner.
Ashley Smith died tragically at the age of 19 inside her cell at Grand Valley Institution for Women in Kitchener, after spending many months in segregation (solitary confinement). At the age of 13, Ms. Smith became involved with the youth criminal justice system. Prior to her death, she spent time in a number of federal and provincial correctional facilities and struggled with mental health issues while in jail. The young woman died after tying a ligature around her neck while guards, instructed not to intervene before she stopped breathing, watched.
Public inquests are held when an inmate dies in custody and serve two important functions: to determine the facts surrounding an inmate’s death and, where possible, to prevent similar deaths from occurring in the future. The Canadian Civil Liberties Association (CCLA) is participating in the inquest as a party in order to ensure that there is a full public accounting of the circumstances surrounding Ms. Smith’s death. CCLA also has experience in ensuring that adequate oversight of government and authorities, and accountability mechanisms are in place to protect the fundamental rights and freedoms of all people, including the right to life. Meaningful and transparent oversight is essential to ensure that prisons operate within the law.
Please stay tuned for further updates regarding the inquest on our website.
CCLA is represented at the Inquest by Allison Thornton of Koch Thornton LLP.
The proceedings of the inquest are being broadcast live via webcam and are available at the following link: http://www.mcscs.jus.gov.on.ca/english/DeathInvestigations/office_coroner/PublicInquest/OCC_inquest_stream.html
Click here to read more about our past work on this issue.
For media inquiries, please contact:
Allison Thornton, special counsel for CCLA at the Inquest, a partner at Koch Thornton LLP
(In the alternative, please contact Noa Mendelsohn Aviv, Director of CCLA’s Equality Program, at firstname.lastname@example.org or 647-780-9802)
on February 3, 2012
Email sent to Senator Boisvenu by CCLA general counsel Nathalie Des Rosiers on February 3, 2012
Many efforts are being made to prevent suicide particularly for people who suffer from depression. Remarks from a public figure like you, Senator, that encourage people to commit suicide are particularly damaging to the various campaigns for suicide prevention. On behalf of the families who have lost one of theirs to suicide, I ask you to refrain from continuing to promote it, and even if your proposals arepopular with some victims. (Globe & Mail, February 3).
There are currently in federal and provincial Canadian prisons a large number of prisoners who suffer from depression and mental health problems. The Office of the Correctional Investigator notes that the suicide rate in federal prisons is already seven times higher than the national average. Most people are incarcerated for crimes related to drug trafficking: it is irresponsible to associate all inmates with the image of Cliff Olson or Mr. Shafia.
I invite you to inform yourself better with regards to practices for suicide prevention and to observe them. Your words are causing great harm to all those who work in the field of mental health and are trying to prevent people from resorting to suicide. Your duty should not be to encourage victims to promote suicide but to recognize the extent of mental health problems in prisons and the need to respond to these issues proactively to ensure better security.
Nathalie Des Rosiers
General Counsel, Canadian Civil Liberties Association
By Noa Mendelsohn Aviv
on December 23, 2011
In light of some very serious charges laid against individuals who had, in a variety of circumstances, not disclosed their HIV status to sexual partners, CCLA has written to the Attorney General for Ontario calling on him to develop guidelines concerning the criminal investigation and prosecution of allegations of non-disclosure of HIV and other sexually transmitted infections (STIs). Such guidelines would further several fundamental legal and constitutional principles, including transparency, accountability, fairness, non-discrimination, the rule of law, and the need to make public policy based on cogent evidence. Appropriate guidelines might also help mitigate some of the unnecessary stigma associated with HIV and AIDS.
Today’s letter was sent after more than a year since CCLA had endorsed a call with many organizations and individuals calling for these guidelines. To date, no such guidelines have been developed.
To read CCLA’s letter to the Ontario Attorney General, click here.