Race / Ethnicity / Religion
Race / Ethnicity / Religion is part of the Equality program. You can find more information about it on its main program page.
By Cara Zwibel
on March 19, 2015
The Supreme Court has rendered its decision in Loyola High School v. Quebec (Attorney General). The case examines the province of Quebec’s Ethics and Religious Culture (ERC) curriculum which was put in place several years ago when the province went through the process of moving away from a confessional system of education. Loyola, a private Catholic high school in Montreal, sought an exemption from the Minister of Education on the basis that it taught a course that was equivalent to the ERC course but was in keeping with its mission as a Catholic school. The Minister denied the exemption arguing, in part, that as a religious institution (and not an individual), Loyola could not make a freedom of religion claim under the Canadian Charter of Rights and Freedoms or the Quebec Charter of Human Rights and Freedoms. The Minister also took the position that a denominational course could not be equivalent to the ERC.
The CCLA intervened in the case in light of its importance to the more general understanding of freedom of religion in Canada. Before the Court, CCLA argued that while freedom of religion is often thought of as an individual right, it also has significant associational and expressive components. Therefore, in certain cases, where an institution is primarily a vehicle through which individual members exercise their own freedom of religion, the institution itself can make a claim under the Charter. CCLA also argued that the Minister was required to consider freedom of religion in making its determination on the exemption. The Supreme Court decision contains two sets of reasons, but both affirm that freedom of religion has communal aspects that will benefit from Charter protection and that the Minister had to consider freedom of religion in making the exemption decision in this case.
The Supreme Court judgment recognizes strong protections for freedom of religion. Four judges formed the majority and found that the Minister’s decision denying Loyola the exemption was unreasonable because it precluded Loyola from teaching Catholicism from a Catholic perspective. This infringed on religion freedom in a way that was disproportionate to the scheme underlying the ERC. The majority sent the decision back to the Minister for reconsideration. While the majority found that it was not necessary to decide whether corporations enjoy religious freedom in their own right under the Charter, the decision recognizes clearly that freedom of religion has communal aspects and, in any event, the Minister was bound to consider the Charter-protected religious freedoms of members of the Loyola community.
Three judges wrote a separate opinion, that concurred only partially in the result. The concurrence explicitly held that the collective aspect of freedom of religion is protected by the Charter and that an organization can benefit from freedom of religion protection where the organization is (1) constituted primarily for religious purposes, and (2) its operation accords with these purposes. The concurring decision acknowledges that claims brought by organizations will be different from those brought by individuals, and provided some guidelines for how to consider evidence in these kinds of cases. At the same time, the concurrence recognizes that it will be left to future cases to test the boundaries of when an organization can claim protection under freedom of religion. The concurring judges also would have simply granted Loyola the exemption, rather than sending the case back to the Minister for a decision.
Read the CCLA’s factum here.
Read the Supreme Court’s decision here.
By Noa Mendelsohn Aviv
on February 12, 2015
The Supreme Court of Canada will be holding a two day hearing this Monday and Tuesday to consider laws that could penalize individuals for having assisted refugees enter Canada. The act of providing such assistance to people in danger is being termed, under a very broad interpretation of the law, “human smuggling” or “people smuggling.” However most of the individuals whose cases are before the Court are themselves claiming refugee status, or were assisting refugees, or both; most of them are not accused of any crime, and are not believed to have made a profit, or to have engaged in late-night border-running. These individuals are being penalized as “smugglers” for having assisted themselves as refugees and/or other refugees travelling with them to safety.
CCLA has intervened in the case to argue that if “smuggling” is interpreted so broadly that it encompasses any person who assists another to enter Canada, this could capture a refugee mother who brings her child with her, a refugee husband and wife who assist each other, or a humanitarian worker saving someone’s life. CCLA has argued that such laws would be unconstitutional and inconsistent with Canada’s international obligations to protect refugees.
CCLA is represented by Andrew Nathanson and Gavin Cameron (Fasken Martineau)
To read CCLA’s factum, click here.
By Noa Mendelsohn Aviv
on January 27, 2015
“Solitary confinement deprives the prisoner of vital human contact. This practice has devastating effects on the prisoner’s mental and physical wellbeing, and constitutes the harshest form of punishment that may be administered in Canadian penitentiaries. As such, the ready, routine and prolonged use of solitary confinement in Canadian penitentiaries is unjustified, unethical, and ultimately, unconstitutional.”
||- Notice of Appplication, Corporations of the Canadian Civil Liberties Association and the Canadian Association of Elizabeth Fry Societies
Constitutional challenged filed Janary 27th, 2015
The CCLA is deeply concerned about the practice of solitary confinement in Canadian prisons, and has long worked to uphold the rights of prisoners. CCLA has advocated with respect to these concerns, and noted the disproportionate representation of vulnerable groups in segregation including individuals with mental health issues and Aboriginal Peoples. CCLA has also conveyed in various fora its concerns regarding failing safeguards and an absence of adequate oversight with respect to segregation, and recently, the wholly inadequate response of the Correctional Service of Canada to the Ashley Smith Inquest recommendations.
Read CCLA’s Notice of Application here.
Background – the Impact of Solitary Confinement:
Solitary confinement – also known as segregation – can cause severe mental and physical pain or suffering. In the case of prolonged segregation of over 15 days, some of its harmful psychological effects can become irreversible. These findings, based on psychological studies, have been affirmed by international human rights bodies. Indeed, according to a report by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatement (August 2011), when segregation is used “as a punishment, during pre-trial detention, indefinitely, prolonged, on juveniles or persons with mental disabilities, it can amount to cruel, inhuman or degrading treatment or punishment and even torture.”
In addition, given the closed nature of prisons generally, and the isolation of solitary confinement, any abuses, misuse of authority, or mistreatment – such as that experienced by Ashley Smith – may go undetected and unchallenged.
There is also a troubling connection between segregation and suicide in federal penitentiaries, and a disproportionately high rate of suicide among prisoners in segregation. According to a recent report by the Office of Correctional Investigator (September 2014):
“A major finding of this review, one that is repeatedly supported by the literature, is that suicide rates are more prevalent in physically isolated cells (segregation, observation and mental health cells) than in general population cells. The literature is also clear that physical isolation and separation increases the risk of suicidal behaviour. Placement of a mentally disordered inmate in segregation or in an observation or special suicide-resistant cells has both perceived and actual punitive aspects… As this Office has long advocated, long-term segregation of mentally disordered inmates or those at risk of suicide or serious self-injury should be prohibited. Such a prohibition would be more consistent with existing policy on managing suicide risk than the status quo.”
In November 2009, CCLA announced that it was joining with the Criminal Lawyers’ Association to call for an immediate government response to the alarming increase in the use of solitary confinement in Canada’s federal penitentiaries.
- Click here for more information.
On March 15 2010, CCLA – jointly with the Criminal Lawyers Association, the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, the B.C. Civil Liberties Association, and the Schizophrenia Societies of both Ontario and Canada – sent a letter to the Minister of Public Safety concerning the use of segregation and the special needs of prisoners with mental health issues.
- For more information and to read the letter, click here and here.
Inquest into the Death of Ashley Smith – In March 2011, CCLA sought status as a public interest party in the Inquest into the Death of Ashley Smith. CCLA was represented on a pro bono basis by Allison Thornton (Koch Thornton LLP), assisted by Amy Slotek (CCLA). CCLA was a party to the Inquest and remained actively involved in it, through its various phases, until its conclusion in December 2013. During this time, CCLA questioned witnesses, called Prof. Andrew Coyle as an expert witness (from the U.K.), worked with the other parties to draft, where possible, joint recommendations for the jury, made oral submissions, endorsed and opposed the final submissions submitted by Coroner’s Counsel, and submitted its own Additional Recommendations to the inquest jury.
- To read the recommendations of Coroner’s counsel (many endorsed, and some opposed by CCLA), click here.
- To read CCLA’s Additional/Alternative Recommendations, click here.
In May 2012, CCLA addressed the issue of solitary confinement in its report to the UN Committee Against Torture, making a number of submissions, and referring specifically to the Ashley Smith inquest which was at that time ongoing.
- To read CCLA’s submissions to the UN Committee Against Torture, click here.
- For more information on CCLA’s submissions and the concluding observations of the committee, click here and here.
CCLA’s Sukanya Pillay published an op-ed in honour of Prisoner’s Justice Day 2012. The op-ed addressed, among other things, the overuse of segregation of people with mental health issues.
In December 2013, nearly a year following the conclusion of the Inquest into the death of Ashley Smith, Correctional Service Canada released its response to the Inquest recommendations. CCLA was deeply disappointed by this response, as failing to adequately address the practice of administrative segregation, place firm time limits on its use, or provide for meaningful oversight and accountability mechanisms.
- To read CCLA’s position on CSC’s response to the Ashley Smith Inquest, click here.
By Cara Zwibel
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.
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 Peter Goffin
on April 9, 2014
On April 8th, 2014, CCLA presented submissions to the Toronto Police Services Board on the issue of police carding and racial profiling. To its credit, the Board is working to develop its first-ever policy regarding “community contacts” – officers stopping and engaging members of the community in the course of day-to-day policing. Unless the police suspect that an individual is connected to a particular crime, the individual is under no legal obligation to speak with police. However, many “contacts” have taken place for years based not on consent or voluntary participation, but based instead on individuals’ lack of information about their rights; feelings of fear, intimidation and threat; power imbalances; and police conduct. At the TPSB meeting on April 8th, almost 20 activists and community members gave deputations before the Board, describing the devastating impact that random police stops have had on marginalized communities in Toronto, and urging the Board to end such stops.
CCLA presented a deputation and written submissions to the Board, focussing on ways the draft policy should be strengthened and clarified. In particular, we emphasized that informal interactions between police officers and community members (such as a greeting) cannot include questioning as to a person’s identity, address, where they are coming from or going, associates, and other personal information, and must be based on consent and voluntariness. We also highlighted the need for robust accountability mechanisms.
Read CCLA’s written submissions.
By Cara Zwibel
on December 20, 2013
CCLA has submitted a brief to the Quebec National Assembly’s Committee on Institutions’ as part of its general consultation and public hearings on Bill 60. Bill 60, or the Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, is a deeply troubling law that would infringe basic rights and cannot be justified in a free and democratic society. In our submissions, CCLA argues that the Bill infringes freedom of religion, freedom of expression and the right to equality and to be free from discrimination. CCLA also points out some concerning inconsistencies in the proposed law which would have a disproportionate impact on individuals from minority religious groups and, in particular, women from these groups. We are urging the Quebec government not to move forward with the proposal and hope to have an opportunity to address the Committee in person in their public hearings, which are scheduled to start in mid-January, 2014.
Read CCLA’s brief here (English submissions follow French).
By Noa Mendelsohn Aviv
on December 13, 2013
According to recent reports, a large number of migrant workers were approached by police and asked to provide DNA samples as part of an investigation into a sexual assault. Although police reportedly had a description of the suspect, the group of individuals asked to give a DNA sample was diverse, ranging in age “from 21 to 61, with heights from five feet to six-foot-five, weighing between 130 pounds and 310 pounds.” The individuals’ only common feature, according to reports, is the colour of their skin.
CCLA is concerned about policing on the basis of racial characteristics and the use of random DNA tests, which are a highly invasive measure – and is looking into this matter.
To read more about CCLA’s work on racial profiling, click here.
To read more about CCLA’s work concerning random DNA testing, click here.
By Noa Mendelsohn Aviv
on December 13, 2013
On November 18th, 2013, CCLA participated in a special community meeting held by the Toronto Police Services Board on racial profiling and carding. The Board heard from 23 deputations on the Toronto Police Service’s PACER report, and on the response to it by Board Chair Dr. Mukherjee.
CCLA’s submissions called for an end to the practice of carding (or “street checks”) and the implementation of concrete measures to address race-based harassment. Concrete measures should include:
- a policy that sets out specific guidelines a to when police may stop and question individuals;
- a policy that recognizes power imbalances between police officers and the individuals they stop;
- accountability tools such as providing a carbon copy of (most of the) data recorded to the individual stopped; and
- the creation of an independent external civilian oversight body.
To read CCLA’s submissions to the Board, click here.
By Peter Goffin
on November 25, 2013
WHERE: Moot Court, New Chancellor Day Hall, 3644 Rue Peel
WHEN: Monday, December 2nd, 2013, 5:30 PM
The Canadian Civil Liberties Association chapter at McGill Law is co-sponsoring a December 2nd round table discussion on the Charter of Quebec Values (also known as Bill 60). The event, organized by Center for Research-Action on Race Relations (CRARR), will focus on legal and civil rights issues as they pertain to international and domestic human rights instruments, citizenship and labor relations. The panel will include legal and labor relations practitioners who have litigated or actively participated in legislation and public policy on these issues.
Alexa Conradi, President of the Fédération des femmes du Québec, will be the Opening Speaker.
The panel will include:
Assistant Professor, Faculty of Law, McGill University
President, Concordia University Part-Time Faculty Association
Executive Director, Association of English-Speaking School Boards of Québéc
For more information visit https://www.facebook.com/events/579766118745869/?source=1.