On June 13, 2013 the Supreme Court of Canada will hear arguments in the case of Bernard v. Attorney General of Canada et al. Ms. Bernard is a federal government employee who will argue that her personal contact information should not be released to the union to which she is compelled to pay dues as a federal employee. Ms. Bernard has chosen not to join the union as a member and believes that her employer’s sharing of this information with the union is a breach of her privacy and a form of forced association. The union argues that this information is required for it to carry out the legal duties it has under labour relations laws, even to non-union members. CCLA is intervening in the case to argue that the unions needs and legal obligations must be balanced against the privacy rights of employees. In addition, CCLA will argue that while freedom from association is protected by the Canadian Charter of Rights and Freedoms, the simple sharing of contact information is not a form of forced association.
The CCLA will argue that the freedom not to associate is triggered when a person is compelled to adopt views he or she disagrees with or is forced into a situation where it appears that he or she shares ideological views that he/she does not. Personal information should be strongly safeguarded, but circumstances should and do influence when it is reasonable to share such information. In a workplace where employees are unionized, the employer, employee and union are in a tripartite relationship. Since employers should not be involved in coordinating discussions between employees and unions, and given the obligations that unions owe to employees, the sharing of contact information is not a breach of privacy under the federal Privacy Act. The use of the information by the union is consistent with the reason why it was collected and, as a result, the consent of the person to whom the information relates is not necessary. However, CCLA recognizes the importance of respecting personal privacy and believes that unions must take appropriate measures to protect private information and how it is disclosed or used. Reasonable requests by an individual about how they prefer to be contact by the union should be respected.
CCLA has written to Montreal Councillor Alex Norris who planned to introduce a motion to repeal Montreal’s controversial bylaw: P-6. The bylaw requires individuals to provide prior notice to police of their meeting places and demonstration itineraries regardless of the size of the planned protest and without making any exceptions for spontaneous assemblies. The bylaw also prohibits individuals from wearing facial coverings at a public demonstration without reasonable cause. The bylaw has been used to clamp down on peaceful protests before they have even gotten underway and individuals have received tickets of over $600 each. CCLA wrote to Montreal’s City Council in May of 2012 when the amendments to the bylaw were first considered and passed. With recent mass arrests taking place under the bylaw, CCLA has again written to the City expressing its concerns and arguing for the need to protect fundamental freedoms, including the freedom to peacefully assemble and freedom of expression.
The CCLA is deeply concerned about the Montreal police force’s use of a controversial municipal bylaw to cut off social protests before they begin, detain individuals en masse, and issue costly tickets to individuals seeking to exercise their constitutionally protected rights.
In May of 2012 Montreal’s City Council adopted amendments to a bylaw that made it illegal to wear a mask during a public demonstration and required demonstrators to provide prior notification to police of their meeting place and route. At that time, CCLA wrote to the Mayor and city councillors expressing our concerns about the bylaw – in particular that these provisions placed unnecessary and unconstitutional restrictions on freedom of expression and peaceful assembly, both of which are protected under the Canadian and Quebec Charters. While these freedoms may be subject to limits or restrictions, such restrictions can only be put in place where there is a demonstrated compelling and pressing objective and where the measures taken to achieve the objective do not infringe on rights more than necessary. Restrictions similar to those included in the Montreal bylaw were also in a controversial piece of provincial legislation in Quebec, Bill 78 (which subsequently became Law 12). Quebec’s new PQ government repealed Law 12 shortly after coming into power in September, but Montreal’s similar municipal bylaw remains in place.
In a series of recent demonstrations in Montreal, the Service de police de la Ville de Montreal (SPVM) has used the bylaw to “kettle” demonstrators when they fail to provide the police with a route for their demonstration. In three instance in March of 2013, police put an end to demonstrations before they even began and issued hundreds of tickets under the bylaw for over $600 each. In CCLA’s view, individuals should not have to pay to exercise their fundamental freedoms, nor should police engage in mass arrests and detentions of peaceful social protesters. CCLA has written to the Mayor of Montreal urging repeal of the bylaw and to the Chief of the SPVM urging the police to cease engaging in these troubling practices.
CCLA has recently written to two universities about the issue of protests and demonstrations on campus. Universities are significant sites for discourse and debate and an environment where questioning the status quo should be welcomed. Policies around campus security and the use of campus space may, in some cases, unduly limit freedom of expression and peaceful assembly on campus. While these freedoms have limits, those limits must be justified by a compelling purpose and must be proportional to the purpose. The mere fact that a protest may cause disruption or inconvenience is not a sufficient basis for shutting it down or subjecting participants to disciplinary action.
McGill University is currently considering a draft Protocol Regarding Demonstrations, Protests and Occupations on McGill University Campuses. The University invited comments on the Protocol from members of the McGill community and CCLA has made submissions through that process. CCLA has also recently written to security personnel at York University to express concerns about the treatment of protests and demonstrations on campus.
CCLA made written submissions to the Standing Committee on Citizenship and Immigration concerning Bill C-43. The bill would, in CCLA’s view, violate fundamental principles of justice and the constitutionally protected rights and freedoms of citizens and non-citizens alike. Thus, for example, the bill would facilitate the removal of people from Canada with no appeal and no humanitarian relief, even if the person is a permanent resident with a family who has been here for decades, even since childhood. The bill would also grant the Minister discretion to keep non-citizens out of Canada, with no statutory limits on the Minister’s discretion. These and other concerning changes would violate the rule of law, due process, and the presumption of innocence; curtail the Charter rights of citizens and non-citizens; concentrate certain discretionary powers in the hands of the Minister; and remove key judicial oversight and appeal mechanisms – all with no demonstrable gains for Canada’s safety or security.
Below is the transcript of the remarks made by Andrew Lokan, board member and pro-bono counsel to CCLA, on September 6, 2012 at Queen’s Park with regards to Bill 115, the “Putting Students First” Act.
“Members of the Committee, thank you for the opportunity to make submissions on Bill 115. As you know, the Canadian Civil Liberties Association has been actively protecting the rights of Canadians since 1964. The CCLA has intervened in hundreds of court cases, and has made many submissions to legislatures, legislative committees, and other government bodies on the fundamental rights set out in the Canadian Charter of Rights and Freedoms and elsewhere in the Constitution.
I am here as a constitutional lawyer on behalf of the CCLA, because the CCLA believes that Bill 115 is undemocratic and unconstitutional.
Everyone is aware that the economic situation of the Province of Ontario is a matter of concern and that Ontarians need to make sacrifices. Everyone agrees that the government has the responsibility to attempt to stimulate the economy and may also decide to curtail its expenses. Everyone agrees that this creates challenges for the provincial government. But must this also mean undermining democratic values?
Bill 115 has extraordinary provisions. It gives power to the Minister and Cabinet to impose or remove terms of a negotiated collective agreement, to restrict strikes and lock-out even if no strike or lockout is threatened or even on the horizon, and to demand that workers pay back salaries that they are entitled to under bona fide agreements with school boards. It also purports to limit legal remedies and judicial oversight. All this is done in the name of restraint.
The CCLA believes that Bill 115 goes too far. On its face, it violates the Charter right to meaningful collective bargaining: the essential terms of agreements are already dictated and all agreements must be similar or identical with respect to these terms or they will be void to the extent that they deviate from those terms. It certainly violates the right to strike to express one’s discontent, by giving the power to the Minister to prohibit a strike or lock-out even if the parties are in a legal position to do so. It certainly undermines the democratic process by giving wide-ranging powers to Cabinet or the Minister, with little or no input from the Legislature.
The government argues that Bill 115 is “necessary”. But no such necessity has been demonstrated. We question why the Government believes that it is “necessary” to prevent the exercise of the right to strike before any strike or lock-out occurs. We see no reason why it should be considered “necessary” to impose terms on negotiating parties, even before knowing whether they are at an impasse or what outcome they would have negotiated for themselves. We believe that the government is engaging in pre-emptive law making, denying the rights of employees “just in case”. That, with respect, is not good enough in a democracy.
In general, we demand evidence of major disturbances or ruinous disruptions prior to enacting back-to-work legislation that infringes collective bargaining rights. There is a good reason why this has been the case in Canada. Engaging unions, and through them, workers, to negotiate terms for their labour is fundamentally democratic. It is rooted in the idea of the dignity of human beings to sell their labour on terms that they accept. Collective bargaining is a constitutional right for this reason, because it enhances the dignity of workers, and not just because it has been demonstrated to reduce the exploitation of workers. Collective bargaining is not only about the pocket book, it is also about participating in the governance of the workplace. Respect for collective bargaining is a good investment in the capacity of people to self-govern.
This Bill does not respect collective bargaining. The CCLA believes that it is highly vulnerable to constitutional challenge. The government appears to share this view – that’s why the Bill attempts to prevent or hinder constitutional challenges by limiting access to the Courts and tribunals. But if the Bill is passed, a constitutional challenge looks to be inevitable.
The government says that it is acting to support education. But this bill may be teaching students the wrong democratic messages, that is: if you are in a minority government, you should attempt to by-pass the Legislature by giving Cabinet, rather than the Legislature, the right to intervene; if you are worried about negotiated settlements, you should grab power by legislating in advance instead of letting people exercise their rights and only intervening if this creates a real problem; if you are worried about overstepping the law, you should refuse to submit to the courts. The government has called this Bill the “Putting Students First Act”, but a more honest title would be “Putting Democracy Last”.
TORONTO, ON – The Canadian Civil Liberties Association this morning issued a stern warning about the Liberal government’s Bill 115, which affects education workers in Ontario. The Association further announced that they will seek intervener status in a legal challenge should the bill pass in the Ontario Legislature.
“We are concerned that this bill violates the right to meaningful collective bargaining. Why is it necessary, for instance, remove the right to strike before any job action has occurred or even been contemplated? Collective bargaining enhances the dignity of workers and is a constitutional right, in part, for this reason. This isn’t only about the pocketbook, it is also about participating in the governance of the workplace,” said Sukanya Pillay, a Canadian Civil Liberties Association (CCLA) Director.
“People’s rights are not something to be trifled with. We are concerned that this legislation goes too far and violates the civil liberties of all Ontarians,” she said.
Pillay further stated that the CCLA will seek intervener status should the bill pass and be challenged in court.
She was joined at the press conference by Stephen Barrett from law firm Sack Goldblatt Mitchell, who has provided advice to the unions whose members would be directly affected by Bill 115.
“You do not have to be a constitutional lawyer to conclude that this proposed legislation is an unprecedented attack on the civil liberties and constitutional rights and freedoms of educational workers,” said Barrett. “We should expect our governments to defend our constitutional rights and freedoms and to respect the constitutionally protected process of good faith bargaining between school boards and educational worker and teacher unions.”
The CCLA is adding its voice to a growing chorus of groups opposing Bill 115. Representatives of the workers who would be affected have already stated that if the bill passes they will challenge this attack on the rights of Ontarians.
Pillay and Barrett were joined at the press conference by Canadian Union of Public Employees (CUPE) Ontario President Fred Hahn, Ontario Secondary School Teachers’ Federation (OSSTF) President Ken Coran and Sam Hammond, president of the Elementary Teachers’ Federation of Ontario.
“School board support workers and teachers all work hard every day to create safe schools. Dalton McGuinty is using them as pawns in a desperate bid to win two by-elections, just as he wasted $190 million to move an electrical generating plan so that he could buy one more seat in the last election,” said Hahn. “A person’s freedom should not be used as an election ploy.”
Over the past few days news reports have emerged that the Montreal police service (Service de police de la Ville de Montréal or SPVM) were conducting dozens of “preventive arrests” and countless identity checks and searches in Montreal streets and subways. Today, CCLA Board Member Marie-Eve Sylvestre, a professor of law at the University of Ottawa, denounced these “illegal and illegitimate” arrests in the paper Le Devoir.
CCLA presented oral and written submissions to the legislative committee looking into Ontario’s Bill 13, an Act to Amend the Education Act with respect to bullying and other matters. CCLA’s submissions emphasized the fundamental rights and freedoms of all people in Canada, including young people in schools (subject to reasonable limits). These rights include freedom of expression, freedom of association, the right to equality, and the right to life and security of the person. In light of these protections, CCLA’s submissions included the following:
support for the spirit and intention of Bill 13 to protect vulnerable students from bullying and harassment;
endorsement of a requirement that schools support pupils who wish to establish and lead activities or organizations to promote awareness and understanding of and respect for people of all sexual orientations and gender identities
concern that the bill should clarify the right of students, subject to reasonable limits, to choose the name of their club (gay straight alliance, rainbow club, etc).
a recommendation that transphobia and gender identity be addressed throughout the bill
concern that the definition of bullying as a punishable offence be revisited with protections for students’ basic rights; while educators should address bullying of all kinds (punishable or not) through various educational methods;
concern with harsh and mandatory penalties that may have a disparate impact on minority groups
For CCLA’s full written submissions and recommendations, click here.
The Canadian Civil Liberties Association (CCLA) has severe concerns about the constitutional validity of Bill 78, which was passed by the Quebec National Assembly on May 18, 2012. The CCLA agrees that access to education and ensuring that instruction in schools, CEGEPs and universities is open and available for those who want to attend are pressing and substantial societal interests. Our concerns are not directed at this goal, but rather the means that the Quebec government has chosen to pursue it. Bill 78 drastically limits freedom of expression, association and peaceful assembly rights in Quebec. It puts in place a number of prohibitions that are at best tenuously linked with the goal of ensuring access to postsecondary education. Even those provisions that do directly address access to educational institutions are frequently overly broad, vague and discretionary.