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 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 Dora Chan
on March 26, 2013
Up to now, nearly 9000 people have signed a petition for the National Assembly of Quebec supporting the abandonment of announced cuts to social security for elderly people from 55 to 58 years and for the couples with a child of less than 5 years.
You can show your solidarity by supporting this petition which is found on the website of the National Assembly (deadline is April 13th). Here is the link to the petition: https://www.assnat.qc.ca/fr/exprimez-votre-opinion/petition/Petition-3619/index.html
Please show your support and consider share this link among your networks.
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
email@example.com 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 firstname.lastname@example.org
By Dora Chan
on January 17, 2013
Food safety is increasingly becoming a concern in Canada. As indicated by numerous Canadian polls, consumers are concerned about food safety and consider safe food to be an important food quality. Although Canada is respected around the world for its progressive food safety rules, those rules are not always enforced as they should be. As a result, Canadians must push to stay informed and not let food safety be the “forgotten issue” in Canada.
Join us at our panel discussion to learn more about food safety issues and be an informed consumer!
WHAT: Food (In)Security Panel Discussion
WHERE: 1152A Vari Hall (VH), York University, Keele Campus
Debbie Field, Executive Director, FoodShare
Debbie Field became Executive Director of FoodShare in 1992, and has helped build FoodShare into Canada’s largest food security organization. She believes passionately in the healing power of food, and the ability of food to strengthen communities and bring people together. For this discussion, Ms. Field will be discussing how the human right to food was achieved through subsidizing basic healthy food.
Sukanya Pillay – Director, National Security Program, Canadian Civil Liberties Association
Sukanya Pillay is Director of the National Security Program at the Canadian Civil Liberties Association, and an international human rights lawyer. She has made dozens of missions to conflict zones worldwide in Europe, Africa, Asia and the Middle East; appeared before UN treaty bodies and Canadian courts on human rights issues; and has represented clients or presented expert evidence before administrative and judicial bodies in the US, India, Canada, and Europe. For this discussion, Ms. Pillay will briefly elaborate on the connection between international human rights and food.
Professor Claudio Colaguori, York University
Claudio Colaguori lectures in Sociology and Social Science at The University of Toronto and at York University. His current research interests include crime, media and the new authoritarianism, wrongful convictions and human rights and the agonistic configurations of culture. For this discussion, Professor Colaguori will be addressing the issue of food consumption as a form of corporate biopower.
Delon Omrow, PhD Candidate, York University
Delon is a PhD student at York University. Delon’s previous areas of study include contemporary green criminologies, ecological citizenship and indigenous movements, and community environmental policing. For this discussion, Mr. Omrow will be discussing food safety issues from a “green” criminological point of view.
Professor Livy Visano, York University
Dr. Visano is an award-winning Professor of Criminology specializing in critical criminology, critical legal studies, cultural criminology, youth, and ethnographies. Professor Visano will be the moderator for this discussion.
By Noa Mendelsohn Aviv
on January 17, 2013
Today the Supreme Court of Canada overturned the decision of the Quebec Court of Appeal in R. v. Manning. The Supreme Court held that on the specific facts of that case, the Court of Appeal gave too much weight to the offender’s personal circumstances, and insufficient weight to his criminal record, which included several breaches of probation orders or undertakings in addition to five convictions for alcohol-related driving offences.
The CCLA intervened in the appeal before the Supreme Court to oppose the position taken by the Crown that the courts cannot consider the effect of a requested forfeiture order on the offender and his or her family, or the likelihood that the property in issue will be used for lawful purposes. The Crown had argued that the court can only consider three factors: the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence. The CCLA argued that a proper reading of the Criminal Code requires an assessment of the personal circumstances of the offender and affected others. Such a reading is, in the CCLA’s view, consistent with both the language of the provision and the Canadian Charter of Rights of Freedoms.
Although the Supreme Court ultimately granted a forfeiture order, it appears to have accepted the CCLA’s argument on the proper interpretation of the law, as the Supreme Court held that the Quebec Court of Appeal erred by overemphasizing the offender’s personal circumstances and failing to give appropriate weight to his record, rather than holding that it was an error to have considered the offender’s personal circumstances at all.
The CCLA continues to be of the view that consideration of the personal circumstances of the offender and his or her family is required by both the language of the Criminal Code relating to forfeiture orders and the Canadian Charter of Rights of Freedoms. The CCLA intends to continue to follow this issue as the law develops.
A more detailed summary of the decision and a discussion of the implications for the rights of Canadians will follow. For media inquiries, please contact the CCLA’s counsel on the appeal, Catherine Beagan Flood or Joshua Krane of Blake, Cassels & Graydon LLP at email@example.com (416-863-2269) or firstname.lastname@example.org (416-863-4187).
To read the Supreme Court of Canada decision: click here
To read CCLA’s factum: click here
By Noa Mendelsohn Aviv
on January 17, 2013
CCLA intervened in the Supreme Court of Canada in the case of R. v. Manning, which looks at which factors a court may consider when ordering the forfeiture of an offender’s property. Originally created to permit the forfeiture of tools of crime by organized crime rings, the provision has since expanded to allow for forfeitures in many other circumstances.
In this case, Mr. Manning was convicted of impaired driving. He had similar prior convictions. He was given a 17 month jail sentence, and banned from driving for 5 years. However the Quebec trial court and Court of Appeal did not agree to forfeiture of his vehicle, given that Mr. Manning was unemployed, living on social assistance, and that he and his spouse relied on the vehicle to get food, clothing, and to get to the hospital.
CCLA does not have a principled objection to the forfeiture of property in appropriate circumstances. We intervened in this case to make the argument that if courts are considering forfeiture, they must consider the totality of the offender’s circumstances, and consider others who will be impacted, such as the family, dependants, and affected others, as well as whether the property is used primarily for non-criminal purposes. This is consistent with fundamental principles of criminal and constitutional law.
CCLA argued that: “Forfeiture of goods that are used predominantly for lawful purposes, particularly where this forfeiture effectively punishes innocent family members for the offender’s crime, would risk undermining Canadians’ sense of fairness and trust in the criminal justice system.”
CCLA was represented by Catherine Beagan Flood and Joshua A. Krane (Blake, Cassels & Graydon LLP).
To read CCLA’s factum, click here.
on August 10, 2012
August 10th is International Prisoner’s Justice Day – a day now recognized around the world — but which began in Canada 37 years ago.
The 2012 Summer Series is a collection of essays, articles and op-eds published by the Canadian Civil Liberties Association. The Summer Series explores some key questions about rights and responsibilities in democracy and examines topical issues through a civil liberties lens.
To view all articles of the Summer Series, click here.
On August 10th, 1974 a Canadian man, Edward Nalon, died in the segregation unit of an Ontario prison. The next year and every year since, prisoners across the country observed a day of mourning, refusing to eat or to leave their cells, and refusing to forget the unjust death of Mr. Nalon and also of other prisoners. Though deprived of their liberty, Canadian prisoners have shown they are not deprived of moral courage and by marking August 10th they stand up for prisoners’ justice- and prisoners and non-prisoners around the world have stood with them.
In Canada, August 10th is an important day to consider how we treat people behind bars, and to remember the goals of incarceration. It is also a day for us to ask many questions about our prison system as a whole, and to assess how some of the recent actions of the Canadian government may affect these conditions. From overcrowded jails and increased use of segregation to refusals to entertain prisoners’ transfers, our practices toward prisoners may need to be properly evaluated.
In Canada, punishment is imposed upon a finding of guilt after judicial process. When the punishment for a crime is incarceration – as opposed to a fine or a suspended sentence – this means that the prisoner is punished for their crime through the deprivation of his or liberty – liberty is the right upon which true self-determination and full enjoyment of other fundamental rights, is predicated. In other words, the deprivation of liberty is, in itself, the punishment. The suffering inherent in that punishment should not be unjustly aggravated. Yet, when placed “behind bars” – a person is immediately placed into a situation of powerlessness and dependency, and therefore exposed to possible cruel, inhuman, degrading treatment or punishment and even to torture.While the deprivation of liberty may be legal – the deprivation of human dignity is not legal.In Canada, our Charter of Rights and Freedomsprohibits cruel and unusual punishment, and we have ratified the International Convention Against Torture.
Many prison conditions worldwide are deplorable and far worse than Canadian conditions. But Canadian prisons still have serious problems, including for example the overuse of segregation of the mentally ill. International prisoner standards recognize that segregation should not be used except in the most justifiable circumstances or else it will only unduly aggravate suffering and harm. CCLA has intervened in the inquest of the suicide of Ashley Smith, who committed suicide after her pleas for help were ignored, and who had been subject to many periods of segregation.
CCLA is also concerned about overcrowding, and the disproportionately high incarceration of particularly marginalized groups in society including aboriginal people. As Canadians we must investigate, identify and rectify the root causes of these conditions. In this regard, we believe mandatory sentencing is harmful – it will punish those who may most need the benefit of considering mitigating circumstances. Mandatory sentencing will further perpetuate overcrowding inside prisons, and will ignore structural inequities outside of prisons that contribute to poverty and marginalization. Mandatory sentencing does not permit even consideration of restorative justice as its aim is solely punitive and devoid of mitigating circumstantial and structural considerations. Inside prisons, we must vigilantly monitor conditions of prisoners. Recent reports have highlighted the increased use of force by guards and the impact of overcrowded jails for the safety of prisoners and guards. This must be addressed.
The goals of incarceration are to protect society and to rehabilitate offenders to prepare for their reintegration into society. Such goals should also drive our responses to prison transfers of Canadians incarcerated outside of Canada. When foreign governments agree to international prison transfers of Canadian citizens, we believe the Canadian government should accept these prisoners unless there are objective risks to national security. There is no other justifiable “discretion” to deprive a Canadian citizen for the right to finish serving time in Canada when a foreign government has agreed to the transfer, because the prisoner still has the legal right under the Charter to “enter his or her own country”. Secondly, when the jail sentence abroad is completed anyway, a Canadian citizen the constitutional right to re-enter Canada – so it makes practical sense to allow Canadians to finish serving prison sentences inside Canadian prisons – enabling access to rehabilitation programs, visits from family or friends, being close to the cultures and society into which they will eventually reintegrate. Society and the individual will benefit, in cases of foreign prison transfers of Canadian citizens, from the “transition time” inside a Canadian prison.
Finally, we should be concerned on this day about recent reports of Canadian officials favouring CSIS’s use, in exceptional circumstances, of information procured from torture. The international legal prohibition against torture is absolute even to fight terrorism or drug trafficking and it protects everyone. Canadian and international human rights law deems illegal the information procured from torture. Information procured from torture contaminates the legal system and the moral fabric of the societies that tolerate such treatment and its fruits. While security and counter-terrorism are serious valid objectives, they cannot justify torture and the conflation of security and “torture information” is a harmful syllogism.
This August 10th, CCLA recognizes the rights of prisoners in Canada to humane treatment and to respect for their human dignity.
Director, National Security Program
By Cara Zwibel
on April 29, 2011
The Supreme Court of Canada has issued its decision in Ontario (Attorney General) v. Fraser, finding that Ontario’s labour relations regime applicable to farm workers does not violate the Charter right to freedom of association or equality. The CCLA is disappointed by this determination and concerned about the continuing difficulties faced by agricultural workers, many of whom are temporary foreign workers that face particular and unique challenges in demanding respect for their rights in the workplace. In Fraser, a union and several factory farm employees challenged Ontario’s Agricultural Employees Protection Act, 2002 and the exclusion of agricultural workers from Ontario’s Labour Relations Act. They argued that the legislative scheme failed to effectively protect the rights of farm workers to organize and bargain collectively.
The CCLA intervened in the case to argue that the scheme did violate both ss. 2(d) and 15 of the Charter. In particular, the CCLA argued that section 2(d) of the Charter protects the rights of employees to bargain collectively. It was argued that this right incorporates an enforceable duty to bargain in good faith; a mechanism for resolving impasses in bargaining; and a democratic process for employees to choose a representative and a requirement that employers respect the results of employees’ democratic choices. The CCLA also argued, based on the particular vulnerability of agricultural workers and the fundamental importance of work in our society, that the exclusion of these workers from the ordinary labour relations scheme violated s. 15, the Charter’s equality guarantee.
In a decision on which the Supreme Court of Canada was split 8-1 in the result (with four different sets of reasons written by members of the Court), it found that the existing scheme did not violate s. 2(d), and that the evidence did not establish that the legislation made meaningful association, in order to achieve workplace goals, impossible. The majority of the Court did, however, interpret provisions of the Agricultural Employees Protection Act, 2002, as imposing a duty on agricultural employers to consider employee representation in good faith. It remains to be seen whether this interpretation will effectively protect the rights of workers. The majority of the Supreme Court rejected the equality argument, finding that there was no substantive discrimination and that, since the regime for agricultural workers had not been sufficiently tested, the equality argument was premature.
Read a copy of the decision here.
Read CCLA’s factum in the case here.