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 Sukanya Pillay
on March 25, 2013
This morning in Geneva, CCLA addressed State Delegations at a pre-session of the Universal Periodic Review (“UPR”), organized by the organization UPR-Info. CCLA’s intervention was to update States on our concerns about Canada’s ongoing human rights record, in anticipation of Canada’s Second Universal Periodic Review. Canada, like all member States of the United Nations, participates in the Universal Periodic Review process, in which States make recommendations to each other on steps to further adherence to international law commitments, and the State Under Review (in this case, Canada) has the option to “accept” or “reject” recommendations, and to undertake “voluntary commitments”. The purpose of the 2nd UPR of Canada incorporates examining progress on Canada’s commitments made during the first UPR in 2009.
Nathalie Des Rosiers, CCLA General Counsel and Executive Director, addressed the State delegations this morning on behalf of CCLA. She was part of a delegation of Canadian NGOs who took the floor during the Pre-Session this morning.
Later in the day, CCLA participated in a “working lunch” at the Canadian Permanent Mission to the UN, with other Canadian NGOs.
To read CCLA’s statement to the UPR Pre-Session click here: STATEMENT OF CCLA – UPR 2013 Pre-Session
For background information on the upcoming Second UPR of Canada click here: http://ccla.org/2012/10/09/ccla-submits-ngo-report-regarding-2nd-universal-periodic-review-of-canada/. To read a copy of CCLA’s WRITTEN SUBMISSIONS to the UPR Process please click here: 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.
on February 22, 2013
February 22, 2013
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
Amnesty International Canada
613-744-7667, ext 235
Noa Mendelsohn Aviv
Canadian Civil Liberties Association
416-363-0321 ext 226 and 647-780-9802
Cindy Blackstock, PhD
First Nations Child and Family Caring Society
firstname.lastname@example.org 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 email@example.com
By Noa Mendelsohn Aviv
on February 21, 2013
The First Nations Child and Family Caring Society and several other bodies challenged as discriminatory the funding of child welfare services for First Nations children on reserve, which was reported to be significantly less than the funding for child welfare services for other children in Canada. CCLA was granted leave to appeal at the Federal Court of Appeal on the legal question of how “discrimination” should be defined and proven. CCLA is arguing for fair access to the human rights system. Such access should be responsive to discrimination, and allow for different kinds of proof of discrimination, in a manner that is not too burdensome for the complainant. It will still be open to the respondent to provide reasonable justification for distinctions they have made.
For more information about the case, including a timeline, legal documents, and relevant reports, click here for the “I Am a Witness” page of the First Nations Child & Family Caring Society of Canada.
To read CCLA’s factum at the Federal Court of Appeal, click here.
By Cara Zwibel
on February 5, 2013
The CCLA is intervening in R.C. v. District School Board of Niagara, a case proceeding before the Ontario Human Rights Tribunal in St. Catharines on February 5 and 6, 2013. A parent of a child in the Niagara School Board, R.C., complained to the Human Rights Tribunal about the School Board’s policy of allowing the distribution of Gideon Bibles to students in Grade 5, with parental consent. CCLA has been involved in this issue in a number of school boards arguing that the practice of allowing a religious organization to proselytize to students through the school is inconsistent with freedom of religion and the right to equality under the Canadian Charter of Rights and Freedoms. Even where policies allow for the distribution of materials by various religious groups (as does the amended policy in Niagara), this presents problems as it involves the school board in determinations about what constitutes a religion and which texts can be distributed. Moreover, very few religious organizations have the resources to offer free texts to all students at a particular grade level.
CCLA believes that schools can and should teach about religious beliefs and practices, but no school should impose beliefs on students or suggest a preference for one religious group over another. The policy of allowing Bible distribution in schools with parental consent requires that parents or students make a statement of faith to a public school board, and this is inappropriate. CCLA has intervened in the R.C. case to put forward arguments to ensure that provisions of the Ontario Human Rights Code are interpreted in a way that respects the values enshrined in the Canadian Charter.
Read CCLA’s written submissions to the Tribunal here.
By Noa Mendelsohn Aviv
on January 23, 2013
As part of an ongoing public discussion with the Toronto Police Services Board about race-based harassment (racial profiling), CCLA’s Equality Program Director Noa Mendelsohn Aviv will address the Board. The current issue is the “receipt” the police will provide to individuals who are detained by police, questioned, and “carded” (the practice by which police record the identity and personal information about a person in the police database). CCLA is urging the Board to make sure individuals receive a mirror copy of certain basic information recorded by police about them, and the specific reason for the stop.
For CCLA’s submissions to the TPSB on this matter, click here.
By Noa Mendelsohn Aviv
on January 11, 2013
The Canadian Civil Liberties Association supports the rights of Indigenous people to ancestral and treaty rights, and calls on the Canadian government to fulfill their constitutional duty to consult with Indigenous communities.
CCLA also supports the right of people to dissent, protest, and express themselves. These rights as well are constitutionally protected in the Canadian Charter of Rights and Freedoms.
on December 21, 2012
When is it appropriate for police to engage and interact with members of the community? Is it acceptable for a police officer - absent any suspicion or specific investigation – to ask young passersby for their name? Their address? What they’re doing? More personal information? And if they do get this kind of information in such a context, should there be any limits on what they can record in police databases? What is the social impact? How can we educate youth about their rights? These and others are just some of the questions that arise with respect to CCLA’s Youth Rights And Policing project (Y-RAP).
The Canadian Civil Liberties Association’s Y-RAP project is currently being piloted in Toronto. It was developed in response to academic research, reports and workshops with young people, all of which pointed to troubling issues concerning certain interactions between police and youth, in particular racialized youth. Reports also identified psychological and other social costs that resulted from racial profiling. Through field consultations, CCLA also discovered that youth feel ill-informed about their rights and how to protect them, and about the appropriate role of police in their communities.
In Quebec, a report entitled “Racial profiling and systemic discrimination of racialized youth” published by the Quebec Human Rights Commission, described as “a wake-up call to the government,” offers an important perspective on how this issue affects communities. The Toronto Star also carried an extensive investigation into carding and racial profiling.
Since that time, the Toronto Police Services Board (TPSB) responded by calling a meeting and beginning a process of investigation of police practices, through the City Auditor General. TPSB has met to discuss other recommendations, and is moving towards implementation. CCLA has made oral and written submissions to the TPSB several times on these matters, and continues to closely monitor it for further changes. At the policy level as well, CCLA has been following developments around racial profiling and addressing them.
Over the last two years, CCLA has been regularly meeting and speaking with over 120 youth from across five different communities in Toronto, in an effort to better understand how this issue affects their rights and provide support in the form of education, empowerment and democratic literacy. We have been supporting young people and communities in their desire to learn about their rights, document incidents of police interactions, learn what kind of recourse they have, and seek ways to – lawfully – challenge police practices. With these groups, we are also developing a toolkit of resources that we intend to make publicly available for youth advocates across the country.
Canada’s Criminal Code is one place to look for answers. Even where there are legal standards, many situations are subject to varying interpretations. Furthermore, there are inconsistencies in police adherence to these standards or, put differently, not all officers consistently observe their legal duties. Racial profiling is a practice (though not necessarily a formal policy) in which certain police disproportionately single out racialized persons – frequently young black men – for questions, stops, searches, and “carding.” Carding – the creation of a file about someone and recording of information about them into a “contact card” in police databases – can have far-reaching consequences, as people are routinely asked to provide police background checks when they apply for work, try to volunteer, or in other circumstances.
>> Read CCLA’s non-conviction disposition report, “Presumption of Guilt?”
From the perspective of members of the affected communities their experience is that they may be doing nothing more than walking home from school, and can be subject to stops, questioning, carding, searching, or worse. This appears to happen to youth of 13, sometimes younger. The stop may take a few moments or much longer – but in many cases young people feel unable to continue on their way. Police officers frequently ask questions like: Who are you? Where are you going? Where are you coming from? Do your parents know where you are? and much more. Stops and questioning are sometimes coupled with disrespectful behaviour by police, and may lead to situations where police initiate threats, intimidation, or even aggression. Searches too, can be conducted, sometimes by virtue of “consent” that is not freely given.
Young people CCLA has spoken to report feeling frustrated, disrespected, and disempowered by these experiences. Though compliance is not actually required by law in many scenarios, many young people do not know their legal rights, and some young people have reported that attempts to resist are met with threats and even physical aggression.
Since Y-RAP began, CCLA has observed that young people with little interest in the law have been motivated to return for multiple meetings, and have brought peers to learn, participate, and share information about their experiences. They are learning to assess their experiences with police in light of legal and constitutional principles. Throughout this process, youth we have encountered through the project have been changed by it: empowered, inspired, and encouraged to seek change and help address the issue of racial profiling in their communities.
By Cara Zwibel
on December 20, 2012
The Supreme Court has rendered its decision in the case of R. v. N.S., which considered whether a sexual assault complainant could testify in Court while wearing a niqab for religious reasons. One of the accused in the case argued that the niqab could not be worn as this would affect the ability of his lawyer to effectively cross-examine the complainant and impair the ability of the judge (and/or jury) to assess her credibility by observing her demeanour.
The CCLA intervened in the case to argue that freedom of religion must be respected and that, where there is a conflict between this freedom and an accused’s right to a fair trial, these rights must be reconciled. However, CCLA’s submissions noted our ongoing concerns about the use and value of demeanour as an indicator of credibility and stated that allowing a witness to testify in accordance with her religious convictions promotes trial fairness.
A majority of the Supreme Court has agreed that the religious rights of the complainant must be reconciled with the accused’s right to a fair trial. The decision provides a number of considerations that will be relevant to determining how this reconciliation can be achieved on a case-by-case basis, including the nature of the evidence the witness is expected to give and how crucial it is to the case. While we are pleased that the majority of the Court recognized the importance of reconciling rights, it remains to be seen how the decision will be applied in practice. It is likely that there will be very few cases where this issue will arise, but we are concerned that, when it does, individuals may be forced to choose between accessing the justice system and staying true to their religious convictions.
The dissenting reasons of Justice Abella provide greater protection for freedom of religion, recognizing that while it is easier to assess demeanour if a witness’ face is not covered, there are many other indicators of demeanour that are not affected by the niqab. Absent a case where a witness’ face is at issue in the case (for example, when there is a question of identity), Justice Abella would not require a witness to remove her niqab in order to testify.
Read the decision here.
Read the CCLA’s factum in the case here.