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 email@example.com 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.
on September 30, 2011
Today, the Supreme Court of Canada recognized that ministerial discretion cannot be exercised so as to violate the Charter. The case pitted the clinic which operates INSITE medical services for people with drug addiction in Vancouver’s Downtown East Side, and the Federal Government which was considering not renewing an exemption of the Controlled Drugs and Substances Act, which has been allowing employees to make injections under medical supervision.
Since the Act allowed exemptions for medical or other purposes, the Supreme Court ordered that Minister to grant this exemption in this case given that it has been proved that the INSITE service saves lives and significantly reduces the incidence of diseases such as AIDS or Hepatitis C without necessarily increasing consumption. The Canadian Civil Liberties Association intervened in the case to argue that the application of Article 7 of the Charter (right to life, liberty, and security of the person) requires an exemption from the application of criminal provisions.
CCLA welcomes the Supreme Court of Canada’s decision. It is a triumph for public health policy in Canada and more generally for the duty of every government to act rationally in situations where life and human health are at stake
>> Read the Supreme Court of Canada’s decision: http://csc.lexum.org/fr/2011/2011csc44/2011csc44.html
>> Read about CCLA’s intervention: CCLA to Intervene in Support of Safe Injection Sites
>> In the news: Supreme Court ruling opens doors to drug injection clinics across Canada
By Noa Mendelsohn Aviv
on June 28, 2011
The Federal Court of Appeal has upheld a decision to not provide healthcare coverage to a very ill woman because of her precarious immigration status – a decision that has and will now continue to jeopardize the woman’s ability to receive life-saving medical treatment.
Since 1957, the government of Canada has, for humanitarian reasons, taken responsibility for certain people in precarious immigration situations and provided such coverage. The Canadian Civil Liberties Association had intervened in this case and argued that the denial of life-saving healthcare to a person living in Canada with precarious immigration status violates our Canadian values as well as our humanitarian laws: it violates her right to life and to equality as guaranteed in the Canadian Charter of Rights and Freedoms, and contravenes Canada’s obligations under international law.
Click here to read the CCLA’s factum in this case.
Click here to read the decision.
By Noa Mendelsohn Aviv
on May 25, 2011
The court heard testimony and arguments in relation to CSC’s request for a partial publication ban – to impose restrictions on the videos shown in court when released to the media given, it was argued, prison guards’ rights to privacy and security. At a minimum, CSC requested that the faces of the guards be blurred. The court heard evidence from current Grand Valley warden, Mr. David Dick, who testified that prison guards had concerns about their privacy and safety should the videos be released to the public and their involvement with Ashley Smith be known. It was also indicated that staff had concerns that the public would misconstrue their actions if only given ‘snippet views’ of the tapes without the benefit of the full context. Ms. Reinhardt, a former corrections officer and now administrative assistant at Grand Valley, gave similar testimony. Of importance to the weight and credibility of this evidence, the warden’s testimony was largely based on a summary of concerns raised in 18 e-mails by prison guards at Grand Valley, e-mails that had been solicited by CSC’s counsel the day after they had brought their motion for a partial publication ban. Ms. Reinhardt’s concerns had also been solicited the day after the motion was brought.
On cross-examination, it became clear that both the concerns about privacy and security had no evidentiary basis. Prison guards already wear name tags, the prison grapevine ensures that anyone who wants to know who was involved in the death of Ashley Smith will know, and 14 of the 18 prison guards who wrote e-mails raising privacy and security concerns will be witnesses at the Inquest and so their identities and involvement will be known publically (the media can report on all proceedings at the trial and take pictures of witnesses outside the courthouse). Further, no threats or attacks have been made on any of the guards involved with Ms. Smith. With respect to the worry about possible negative publicity and the public misconstruing guard actions, the law is clear that publication bans cannot be sought on the basis of potential publicity or misrepresentation, otherwise courts would be acting as censors of the media which is antithetical to the important values of freedom of expression and the marketplace of ideas in a free and democratic society.
Arguments made by counsel opposing the publication ban (counsel for the Smith Family, media organizations, CAEFS, PACY, and CCLA) focused on: 1) the importance of the presumption of openness in court proceedings (since it is related to the fundamental freedom of the press and the public’s correlative right to receive this information), and the fact that this presumption in a public inquest is especially strong since one of the main functions of a public inquest into the death of a person who died within a custodial institution is to allow all of the facts, including facial expressions, to be publicly scrutinized in order to ensure transparency and that a whitewash hasn’t taken place; 2) that there is a lowered expectation of privacy for public officers carrying out public duties who knew they were being videotaped and that there was a chance that videotapes could end up in court proceedings; 3) and the paucity of evidence (evidence was all hearsay and speculative) as to any real risk to the administration of justice or the reasonable expectation of privacy to displace the presumption of openness.
Counsel for Coroner Dr. Porter, however, suggested that CSC had demonstrated potential risk to the privacy, security and reputational interests of prison guards which may be enough to displace the presumption of openness. It was also his opinion that the blurring of guard faces was a minimal infringement of the freedom of the press and the public’s correlative right to receive this information, rights protected by section 2(b), and the deleterious effects, if any, were outweighed by the salutary effects of imposing the restriction. He suggested that a compromise might be to blur the faces until such a time as a verdict is rendered, or that if facial expressions are found to be relevant, then counsel may apply to have these videos released with the faces of correction officers unblurred.
Dr. Porter’s decision will be rendered on Wednesday.
on May 23, 2011
May 23, 2011
FOR IMMEDIATE RELEASE
(416) 363-0321 ex. 225
CCLA To Intervene In Ashley Smith Inquest On Tuesday
Ashley Smith, Isolated but not Alone: at the inquest, CCLA will demonstrate the systemic nature of issues, will advocate for a broader protection of human rights, and will argue on Tuesday for freedom of expression and of the press
TORONTO, May 23, 2011 – Just before the start of the Ashley Smith Inquest, the Canadian Civil Liberties Association (CCLA) was granted, at its request, limited standing to participate as a party at the Inquest. On Tuesday May 24th, CCLA will be arguing on a specific motion, for freedom of expression and freedom of the press in order that the inquest proceed in an open and fair manner.
The Ashley Smith Inquest concerns the death of a young woman aged 19, who had mental health issues, and who died in prison under the watch of correctional officers, after years of segregation (solitary confinement).
Ashley Smith’s case was unfortunately not an isolated one. Given the large proportion of people with mental health issues in prisons, and given the systemic nature of the issues that Ashley Smith faced, CCLA is participating in this inquest in order to provide a broad civil liberties and rights perspective to the matters at issue.
CCLA’s participation in the inquest is intended to address the following issues: the vulnerability and societal marginalization of inmates (in particular, those with additional disadvantages such as youth and those with mental health issues); the right of all people to dignity and equality; the fact that people with mental health issues should not be incarcerated in inappropriate facilities and without adequate health services and safeguards for their needs; that certain forms of discipline -including physical force, solitary confinement and institutional transfers – need to be reconsidered and limited in many circumstances; and more.
CCLA is also participating in the inquest in order to assist the inquest’s role to increase public awareness and ensure full and open public scrutiny. This is especially important since Ms. Smith’s death occurred in a prison and outside public view.
On Tuesday, the inquest will be dealing with media access to documents and exhibits, and the showing of faces in videos. CCLA will be arguing for a robust protection of freedom of expression, freedom of the press and the open courts principle.
CCLA is represented at the Inquest by Allison Thornton and Shashu Clacken of Koch Thornton LLP.
Click here to read more about our work on this issue.
For more information:
Penelope Chester (CCLA) Office phone (416) 363-0321 ex. 225 or cell phone (647) 822-8764 or by email firstname.lastname@example.org
Noa Mendelsohn Aviv, Director of CCLA’s Equality Program at 416-363-0321 x226
By Noa Mendelsohn Aviv
on May 18, 2011
An important concern has already arisen with respect to a request by Correctional Services Canada for a publication ban and other restrictions regarding videos and other materials presented at the inquest (or other restrictions). While correctional officers cited the right to privacy, other counsel discussed freedom of expression, freedom of the press, the open courts principle, and the right of the public to know what happened. A full discussion of these issues will take place at the inquest on May 24th.
The five-member jury heard evidence from first witness, Acting Detective Paul Colagiovanni, who gave an overview of Ms. Smith’s history from a very young age until the time of her death. His report was based on selections from a number of documents, in particular the New Brunswick Ombudsman and Child and Youth Advocate June 2008 Report which is publically available here: http://www.gnb.ca/Ombudsman/PDF/AshleySmith-e.pdf. Detective Colagiovanni’s testimony depicted Ms. Smith as a defiant and troubled youth with behavioural problems who, as a result, spent much of her youth incarcerated, and a great deal of that in solitary confinement. However it emerged that these reports actually showed that Ms. Smith’s troubles were in large part in response to her treatment in the correctional system, and its failure to address her mental health issues. Overall, the report raised important systemic issues regarding incarcerated youth that are struggling with mental illness.
By Noa Mendelsohn Aviv
on May 18, 2011
The coroner’s inquest into the death of Ashley Smith began on Monday May 16, 2011 and is expected to take approximately 6 months. Ashley Smith was a young woman who struggled with mental illness and had been involved with the youth and adult criminal justice systems since the age of 13. She died tragically in her cell at the age of 19 in October, 2007, after having spent many months in segregation (solitary confinement).
The public inquest into Ashley’s death has two main functions: to ensure public ascertainment and transparency about the facts related to Ashley Smith’s death; and to initiate a response in order to prevent deaths in similar circumstances.
The CCLA was granted standing at the inquest given the serious rights and liberties issues raised, the systemic nature of these issues, and in particular to raise concerns about persons with mental health issues in the correctional system, and the devastating impact of segregation on such persons. Nathalie Des Rosiers, the CCLA’s Executive Director, will provide expert testimony at the inquest.
Many other parties had a substantial interest in the proceedings and were granted standing, including: Ashley Smith’s family, the Canadian Association of Elizabeth Fry Societies, the Provincial Advocate for Children and Youth, Correctional Services Canada, and the Union of Correctional Officers.
The CCLA will provide regular updates on the proceedings: