on April 4, 2012
This op-ed was originally published by PostMedia News on April 3,2012. Click here to view original.
When is it legitimate to target and hurt innocent families?
Unfortunately, this is not a riddle. The government’s new omnibus anti-refugee bill (C-31) would do precisely that — and for no good reason.
Take, for example, the detention of asylum seekers entering Canada. Under bill C-31, the minister could at his or her whim designate certain “groups” (or families) arriving in Canada, even if their reason for coming is that they were escaping torture, sexual violence or other targeted atrocities in their home country.
Note: In current Canadian as well as international human rights law, we recognize that it would be absurd — and inhumane — to punish people for escaping persecution and seeking asylum.
Not so bill C-31.
Being “designated” by the minister under this bill is very bad for one’s family life.
The first harm to befall you is automatic mandatory detention — and in this case, no good or bad reasons are necessary, since under the bill, the government is not obliged to bring you before an independent decision-maker for 12 months, and only then would they consider whether there is any need to jail you.
And while in this 12-month no-reasons-needed detention, what happens to your family? If you and your family were lucky enough to escape together from danger in your country of origin, bill C-31 would see to it that on arrival in Canada, you could no longer stay together.
Men and women would likely be locked up in gender-segregated detention facilities or jails.
As for your children — youth aged 16 years or older would also be placed in automatic mandatory detention, so they might end up with one parent, but not likely both.
Children and youth aged 15 and under do not have to be detained under this bill.
So here is what would happen to them if you were the asylum seeker being detained. According to government spokespeople, you should be reassured that you as the parent would be consulted — the only catch is that there are only two options when the parent is in mandatory detention: having your child with you in the jail or jail-like facility; or having your child separated from you for the duration of the detention, during which time he or she could end up in foster or other state-sponsored care.
This difficult decision would probably be even harder for you if you were aware of the documented mental health impacts of detention on children and youth (such as suicide, self-harm, etc). It may also be harder than usual to separate from your child if he or she has been through traumas in your country of origin, and/or a grueling escape in your search for safety.
Unfortunately, bill C-31 does not stop there.
The refugee claim process under this bill is speeded up to the point of being impractical or even impossible for certain refugees — which could lead to people being unable to prove their identities and stories. In addition, many groups of asylum seekers under this bill would not have the benefit of an appeal to correct any errors that may occur in the process. An inadequate process coupled with no appeal, could result in people who had escaped terrible dangers being unable to prove this, and being sent back to these very dangers. Clearly, this is not good for anyone — families or otherwise.
But even if you are able to prove your refugee claim in a manner acceptable to Canadian authorities, this is still not enough to protect your family. Under Bill C-31, it is enough that you were in one of the minister’s “designated” groups, for another harm to befall you. If when running for your life you had to leave behind a spouse or child, you would be unable to bring them to Canada for at least another five years after your refugee status is accepted.
And here’s another anti-family policy of bill C-31 for those people who came to Canada as refugees, settled down, found work, built a life and community, had their children and raised a family here: if something changes in your country of origin and the danger passes, even if it is decades later — until and unless you have taken out citizenship and passed the test (not easy for everyone) — under bill C-31 the government can start a process that would likely result in your deportation from Canada. You would have no right of appeal. The fact that your spouse is here and your children born in Canada, would not prevent your deportation.
Splitting families, harming children — these are some of the harms that bill C-31 has to offer. As to the reasons for this bill?
The government has put forward a couple of explanations — such as preventing “human smugglers,” and stopping “queue jumpers” — but nothing that makes sense.
The families running for safety are the “smuggled” not the “smugglers.” And people in danger cannot wait around in queues. If an explanation is irrational and disconnected from reality, this does not qualify as a reason — certainly not a good one. And that is even without considering the cruelty of inflicting mental harm on children who have survived trauma, automatic detention and separation of families. In short, the proponents of Bill C-31 offer nothing that would qualify as a good reason, while causing terrible harms.
Human rights groups, faith groups and countless organizations from across Canada are working to raise awareness about and fight this bill. You can, too. Please share this information with your networks and contact your member of Parliament to let them know you strongly object to Bill C-31 and to the infliction of needless suffering on children and families.
Noa Mendelsohn Aviv is director of equality program with the Canadian Civil Liberties Association
on October 27, 2011
This op-ed was originally published in The Windsor Star on October 27, 2011
Peanut butter has been getting a lot of ink lately. There have been media stories about schools that have forbidden both peanut butter and “safe” peanut butter substitutes – while food banks want donations of peanut butter.
Working toward building a tolerant and critically thinking society, my colleagues and I have been using peanut butter for years.
It turns out to be a great tool for teaching even young children about democratic rights and responsibilities.
While we don’t bring it into class, we found it opens the door to discussions about conflicting rights. For those who believe that democracy means “majority rules,” the schools that forbid peanut butter help show that, while the majority may like it, we may also need to protect a very small number of people. Whose rights weigh more?
A very angry man once telephoned the Canadian Civil Liberties Association. He had sent his young child to school with her favourite lunch. She was a picky eater and only ate one thing. At lunch time, the child had been discovered in possession of that contraband item – the peanut butter sandwich.
She had been whisked down to the school office where she had to eat her lunch alone, and then she was told never to bring her favourite lunch to school. The father was outraged. He said that the school was interfering with his right to feed his child the best way he could.
He pointed out that peanut butter was an excellent food that was preferred by the majority of children. And, food bank peanut butter, he pointed out, may be the only lunch available to some.
The person who answered the phone that day tried to mollify him. “If your child had a life-threatening allergy, surely you would understand the school’s position on peanut butter,” she suggested.
The man responded, “If my child had a life-threatening allergy, I would never send her to school. After all, who would know when a guy like me might send his kid to school with a peanut butter sandwich!”
He is right. There is no rule about what children eat for breakfast. And we have all seen children arrive at school “wearing” breakfast. Imagine the child who has peanut butter on his face and hands playing on the playground equipment before the bell rings. Who will be the second child on that equipment? The child with the peanut allergy? The father said, “The school rule doesn’t keep the kids with allergies really safe.”
His suggestion: Take the children with allergies out of the school. Open a school where they can be really safe – everyone will wear one-piece coveralls, the air will be filtered, and all food will be controlled by the school. Then they will be really safe – and everyone else can go to school with peanut butter sandwiches.
While his suggestion may look absurd or even discriminatory, it raises some serious questions. What is the purpose of the peanut butter rule? Does it actually work? What are the side effects of the rule? These are the questions that all citizens, rule-makers, and legislators, not to mention judges, need to consider in order to determine whether any laws and rules are fair and just.
We want our children to think critically and to consider the needs and rights of people who may differ from them. Children who learn more than just a rule will understand they have a responsibility to others. Thinking about peanut butter can help them practise the habits of democracy.
Danielle McLaughlin is director of education at the Canadian Civil Liberties Association and Education Trust. ccla.org/education
REACTION TO WINDSOR STAR OP-ED ON THE PEANUT PROBLEM
First and foremost, I think that the gentlemen’s response in which he indicates that there is no way to keep every child safe (from peanut butter or otherwise), is unfortunately correct. However, as a society we must ask ourselves if we truly believe that we can create conditions (as much as we may wish we could), in which everyone we love is safe from all threats to their safety.
I would suggest that realistically, we know that we can’t, but what we can do in our democratic society, is offer a collective effort to do so to the best of our abilities. Therefore, in the discussion of what is fair and equitable in our society, we need to critically consider special measures in terms of different treatment. And so, in addition to asking the three questions you present about rules in society, 1) what is its purpose? 2) does it work? and 3) what else happens (side effects)?, may I offer a fourth – does this rule protect and promote fairness and equity?
I ask this because equitable treatment does not mean equal treatment, nor does it mean that people be treated the same in some circumstances. When we discuss rules with people, especially children, and consider our responsibility to others, I believe that it is imperative to address equity and fairness, and to ensure that as citizens we are appreciative of the fact, and openly acknowledge, that different treatment may be necessary to be equitable. In this regard, perhaps the place to begin is to critically interrogate that old adage,”that’s not fair”!
Karen Roland, PhD
Experiential Learning Specialist
Faculty of Education, University of Windsor
on June 27, 2011
This op-ed was published in The Windsor Star on June 27 2011
Look at the photograph of Grade 3 boys from David Maxwell Public School on the front page of the June 8 Windsor Star. What do you see? Some rather charming little guys whose teacher, Cathy Boyer, is very proud of them? Or do you see apartheid in education?
In Jan Wong’s recent article in Toronto Life magazine, entitled “Why educational apartheid is not the answer to curbing dropout rates for specific racial and ethnic groups,” she argues that the recent move to create an Afrocentric high school in Toronto is a mistake.
She suggests that supporters for this model of school are effectively turning back the gains made by the civil rights movement of the 1950s and 1960s. However, she mentions the high provincial standardized (EQAO) test scores for the Grade 3 children in Toronto’s Afrocentric elementary school. She points to the school’s small class sizes and the “obviously engaged parents” as contributing to this success. What is Ms. Wong trying to tell us?
Ms. Boyer, in the Windsor Star article, says she is confident that her class of 17 Grade 3 boys will achieve good results on the EQAO tests taken this year. She believes that having an all-boys class as well as using a curriculum that is sensitive to the needs of each student is responsible for this success.
She describes literacy materials that include graphic novels, sports books and also scary stories written by her boys.
Ms. Wong also speaks to teaching materials. She sees a math lesson where students ex-amine the geometric shape of a classic African Ndebele hut and suggests that “such cultural symbols may hold little significance for a child of, say, third-generation JamaicanCanadians.”
Wouldn’t small classes, individual attention, team learning, sports books, graphic novels, the permission to write scary stories, and even a lesson in the shape of African Ndebele huts enrich all students?
Isn’t there something wrong with a system that doesn’t make this kind of enrichment available to every student in every class?
How do we reconcile this? Isn’t every teacher supposed to be sensitive to the needs of each student? Shouldn’t a multiplicity of resources be available to all learners? But what if some student’s needs conflict with those of others?
What if the need for a minor-ity of students to be integrated into the majority conflicts with their need to feel comfortable by being educated with people who are like them, whether the separation be along lines of gender, race, socio-economic status, sexuality, or any other characteristic that is identified. Should we say no to what Jan Wong sees as “educational apartheid” because we live in a multicultural country where we must all learn to work together?
Should we say that there are some overarching societal values that trump the needs or desires of individuals or should we give parents a choice? The Grade 3 boy, quoted on the front page of The Windsor Star says, “We can learn more because we’re not shy.” But what does this mean? Are all boys shy of girls? And aren’t some children shy of others, no matter what their gender?
What will we say to the Afrocentric school students who tell us they learn better when their fellow students come from similar ethnicities, or that they feel more valued when their culture is given primacy?
Learning is not about gender, race or ethnicity, but about feeling validated as a learner. If we find ourselves examining only one characteristic of each learner, we will be badly misled by what we think we see.
To my mind, the problem is similar to that of food banks. What is a rich country like Canada doing with food banks? Despite the fact that the demand for food banks rises every year, our aim should be to close them all down.
We should be demanding that our governments feed the hungry – just as we should demand that our children’s education meets their individual needs.
But if we close the food banks before we have ensured that everyone has enough to eat, or we remove a variety of choices from our education systems before schools universally adopt truly differentiated education policies, we could be significantly disadvantaging people who have historically suffered that disadvantage for a long time.
No one should have to subsist on a diet of Kraft dinner. And no one should be obliged to send a child to a school that will not meet his or her needs.
Real apartheid did not give people choices.
Danielle McLaughlin is Director of Education, Canadian Civil Liberties Education Trust, and 2010-2011 Law Foundation of Ontario Community Leadership in Justice Fellow, Faculty of Education, University of Windor.
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.
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:
By Noa Mendelsohn Aviv
on January 13, 2011
In the past few days, we learned of a ban on Gay-Straight Alliances in the Halton Catholic School District . Fortunately, almost immediately after this news hit the media, a Board policy group recommended rescinding the ban.
It now remains to be seen what will happen in practice, whether students will be permitted to form LGBT groups – in the Halton Catholic School District and elsewhere.
If you are a Canadian high school student looking to create a Gay-Straight Alliance (GSA) or other LGBT group in your school and you are being blocked by your school authorities, you may be interested to know your rights:
- Like all people in Canada, the Charter of Rights and Freedoms protects you.
- You have a right to equality – in our view, this means that if other students have clubs that empower them, and allow them to discuss and share experiences about their topics of interest, so do you.
- You have a right to freedom of association – to get together with people of your choosing. Schools might prohibit groups that exclude others – but GSAs are generally bodies that seek to include members of the LGBT community and their supporters.
In order to support you and protect your rights, we invite you to contact CCLA if these rights are being violated.
Noa Mendelsohn Aviv
Director, Equality Program
By Graeme Norton
on January 1, 2007
This case concerned the constitutionality of using drug-sniffing dogs to conduct random warrantless inspections of high school students.
January 1, 2005
This case concerned the constitutionality of using drug-sniffing dogs to conduct random warrantless inspections of high school students.