|Freedom of expression is part of the Fundamental Freedoms program. You can find more information about it on its main program page.|
Cara Zwibel on February 17, 2015
In January 2015 CCLA intervened in an important professional discipline case before Ontario’s Divisional Court. The case, Groia v. Law Society of Upper Canada, concerns the question of when a lawyer can be subject to professional discipline for statements made in court during highly contested litigation. Joseph Groia, the lawyer at the centre of the case, has been disciplined for professional misconduct on the basis of ‘incivility’. The Law Society of Upper Canada, which regulates lawyers in the province, has argued that statements and arguments made by Mr. Groia when defending a client against a serious securities prosecution, crossed the line from zealous advocacy to professional misconduct. CCLA intervened in this case before the Law Society’s Appeal Panel and and in Mr. Groia’s further appeal to the Divisional Court.
CCLA accepts that lawyers have professional obligations that may create some limitations on their freedom of expression. However, we are concerned that a broad reading of the Rules of Professional Conduct that require civility could have a chilling effect on lawyers, who are often looked to for candid commentary and criticism of the justice system and its core participants. CCLA argued that the threshold for disciplining a lawyer for incivility based on in-court statements should be very high, and that a penalty should be imposed on a lawyer only in the clearest of cases, where there is or is likely to be a miscarriage of justice. The Divisional Court’s decision was handed down in early February. The Court dismissed Mr. Groia’s appeal, upholding the Law Society Appeal Panel’s finding of professional misconduct. The Court’s reasons do aim to clarify when incivility will amount to professional misconduct and focused on the impact of the lawyer’s behaviour on the administration of justice. While CCLA feels this is a more helpful standard than the one established by the Appeal Panel, we remain concerned about the chilling impact this may have on legal advocacy.
Sukanya Pillay on February 1, 2015
On January 30th, Prime Minister Stephen Harper introducedBill C-51, the Anti-Terrorism Act, 2015. The Bill amends the Criminal Code, the CSIS Act, the Immigration and Refugee Protection Act, and several other pieces of legislation. Generally speaking, the Bill permits more latitude for greater information sharing between government agencies, lengthens the time for preventive detention, permits police lower thresholds for peace bonds, expands the Canadian No Fly List (i.e. Passenger Protect Program), broadens CSIS’s powers significantly, and creates new crimes that may criminalize legitimate speech.
“New laws and new powers don’t necessarily guarantee security” said Sukanya Pillay, General Counsel and Executive Director of the CCLA, “But new laws that violate constitutional rights are a prescription for mistakes, and mistakes won’t keep Canadians safer.”
Pillay questioned the necessity of the many amendments introduced by Bill C51, arguing that Canada has had strong anti-terror legislation in place, including the strong police powers under the Criminal Code. “There are still no answers as to why our existing laws and powers didn’t work – or if they didn’t work,” said Pillay, with reference to the tragic killings of two Canadian soldiers in 2014. “Canadians have a right to know precisely what failures existed in the laws that could have prevented the tragic deaths of Officer Vincent and Corporal Cirillo this past year.”
Bill C51 provides for enhanced information sharing among agencies. The CCLA has long argued that the recommendations of Justice O’Connor in the Arar Inquiry be implemented. Justice O’Connor had a series of recommendations targeting essential accountability and oversight of national security agencies, including his observation that the work of these agencies is increasingly integrated and as such, he recommended an integrated oversight process. To increase information sharing without implementing the lessons learned is folly. Broad unchecked powers without sufficient accountability and oversight will only create future problems.
The CCLA is seriously concerned that the powers of CSIS have been broadened within and outside of Canada, giving CSIS greater latitude in its operations including with respect to disruptions. CSIS, who are currently limited to investigative powers, would be given police-like powers, and be allowed to directly intervene, “disrupt” and “counter-message” communications and activities both in Canada and abroad that they believe are threats to national security. As such, it appears these powers would allow CSIS to intervene or interfere with travel plans, financial transactions, telecommunications, among other possibilities.
The CCLA is concerned that CSIS will be exercising greater powers on the basis of intelligence, which is by nature, not subject to the exacting criteria preserved for evidence collected by the RCMP or police. Of equal concern is the blurring of the line between the functions of CSIS and the RCMP, although going back to the MacDonald Commission, CSIS was created to have distinct features from the RCMP. In this regard the CCLA continues to argue for the government to heed the lessons and findings of the Air India Inquiry.
CCLA is also concerned with the lower legal thresholds for arrest, detention, and peace bonds the Bill proposes. Under the new legislation, enforcement agencies would be able to arrest someone on the basis that they think a terrorist act “may be carried out,” rather than the current legal standard of “will be carried out” contained in the Combatting Terrorism Act, legislation the government introduced less than three years ago. Furthermore, it would increase the period of preventive detention from three days to seven. Police have long held powers under the Criminal Code to arrest and detain an individual if there is a reasonable suspicion of an impending crime — and the controversial preventive detention powers introduced by the Anti-Terrorism Act 2001 and renewed last year were never used, thus raising questions of why the new broad provisions are required.
The Bill also threatens freedom of expression as it would criminalize ‘advocating’ terrorism. The CCLA finds the wording overbroad and is concerned the provision could be triggered even where the speaker has no intention of committing a terrorist act. The danger here is clearly to freedom of speech, and the criminalization of legitimate speech. The potential chilling effect on academics and journalists and bloggers is easily imagined, and the loss would be to a free exchange of ideas so necessary in the pursuit of truth and in combatting radicalization.
The CCLA is also concerned with the expansion of information sharing and lack of transparency within the proposed measures. The Bill grants government departments explicit authority to share private information with law enforcement agencies and allows for court proceedings to be sealed, despite the Federal Privacy Commissioner’s report released just 2 days ago recommending measures to increase transparency and protect individuals’ privacy.
CCLA has also over the past five years raised its concerns about Canada’s Passenger Protect Program (No Fly List), the failure of a clear and comprehensive legislation framework prescribing its operations and the need for proper legal procedures to be followed, for proper legal procedures to be identified and followed, for privacy protections, and for proper administrative process in accordance with natural justice. The program has had serious errors, and we are concerned that greater elasticity in this process without indication of proper corrections being made will result in more errors – which does not keep Canadians safer.
When asked in Friday’s press conference how he could guarantee these laws won’t be in direct conflict with people’s civil liberties, Prime Minister Harper responded that the new measures have “considerable oversight” and stated, “I think Canadians understand that their freedom and their security more often than not go hand and hand. Canadians expect us to do both, we are doing both, and we do not buy the argument that every time you protect Canadians, you take away their liberties.”
The CCLA actually agrees that civil liberties and security do go “hand in hand”, and we have long argued that civil liberties are actually a prerequisite for effective security. The CCLA believes that Canadians know rhetoric is not enough from any stakeholder – rather, there must be clear civil liberties protections in compliance with constitutional safeguards and there must be clear security gains: we are still working on a detailed analysis of Bill C51, but our first read indicates that the new anti-terror legislation does create serious civil liberties concerns, and as such it is difficult to forecast concrete security gains.
Canadian Civil Liberties Association
(416) 363-0321 ext. 230
Cara Zwibel on January 15, 2015
Recent media reports have noted the case of Eric Brazau, who is serving a lengthy sentence in prison for offensive and disturbing remarks he made on a Toronto subway in relation to the Islamic faith. CCLA disagrees in the strongest possible terms with the content of Mr. Brazau’s message, and the manner in which he has chosen to express his views. Nevertheless, we believe that criminal sanctions for the expression of views, however repugnant or odious, are a threat to the constitutional rights to freedom of expression and speech, and as such, have no place in a free and democratic society. Any criminalization of the views expressed by Mr. Brazau is unmerited in Canada. We understand that Mr. Brazau has previous charges and convictions but have no knowledge of those charges or whether they had an impact on his current sentence. However, we are concerned that Mr. Brazau is serving a criminal sentence because he expressed views that are unpopular and offensive.
Freedom of expression lies at the foundation of a democratic society. In many ways, freedom of expression is not necessary to protect popular or mainstream expression, it is only when speech makes some people uncomfortable or causes offence that robust protection of the right is necessary.
Cara Zwibel on January 15, 2015
On Friday, January 16, 2015, CCLA will be appearing before the Supreme Court of Canada as an intervener in the cases of R. v. Barabash and R. v. Rollison. These appeals consider the Criminal Code’s child pornography provisions and, in particular, the personal use exception to child pornography that was established by the Supreme Court in R. v. Sharpe. While recognizing the seriousness of child sexual abuse and exploitation, CCLA has long been concerned that the child pornography provisions may unreasonably limit freedom of expression and, in particular, prevent the creation and dissemination of materials that don’t pose a risk of harm to children. The personal use exception at issue in these cases applies where recordings are made of legal sexual activities, where the parties have consented to the recording, and where the images are maintained for the participants’ personal use only. The Alberta Court of Appeal read a new requirement into the private use exception, requiring that the defendants prove “the absence of exploitation or abuse”. In our view, the exception’s existing requirements already serve this goal, and the additional requirement is vague, creates uncertainty and risks undermining free expression and intruding into the private sexual lives of young people.
Cara Zwibel on December 2, 2014
On December 1, 2014, the Ontario government introduced a Bill (Bill 52, Protection of Public Participation Act) to deal with the issue of lawsuits aimed at silencing public participation. Known as “SLAPP” suits, which stands for “Strategic Lawsuit Against Public Participation” or “Strategic Litigation Against Public Participation”, these lawsuits are directed against individuals or organizations, in order to silence and deter their public criticisms and advocacy for change.
How can I get help?
The Canadian Civil Liberties Association (CCLA) and Pro Bono Law Ontario (PBLO) are launching the Public Participation Project to help individuals who are in need of legal services for these kinds of cases.
Check this site regularly – self-help materials and more information about the project and how to connect with a lawyer who can help you will be available early in 2015.
The CCLA is a non-profit organization that passionately defends the fundamental human rights and civil liberties of all Canadians through public education, litigation, citizens’ engagement, advocacy, monitoring and research.
PBLO is a charity that bridges the justice gap between lawyers who want to give back and Ontarians who can’t afford legal services but have a problem not covered by government funding.
The Public Participation Project is a joint project of CCLA and PBLO. It combines CCLA’s mandate to promote fundamental freedoms and PBLO’s mandate to enhance access to justice.
Cara Zwibel on November 20, 2014
CCLA, in partnership with PEN Canada, the B.C. Civil Liberties Association (BCCLA), and Canadian Journalists for Free Expression (CJFE) has launched Censorship Tracker, an online crowd-sourced mapping tool to monitor threats to freedom of expression in Canada. The map will allow Canadians to track instances of censorship across Canada, and see how censorship changes over time. The project is lead by PEN Canada, and CCLA is pleased to join in this important effort to monitor the state of free expression in Canada, in order to continue our ongoing work to ensure its protection and promotion.
Censorship Tracker relies on submissions from the public in order to capture the full spectrum of actions that limit free expression across Canada. The tool defines “censorship” in general (and not necessarily negative) terms. In particular, it includes as “censorship” any incident in which the right to free expression, guaranteed by the Canadian Charter of Rights and Freedoms, is limited. To learn more about the tool or to submit a report on censorship, visit https://censorshiptracker.crowdmap.com/
Sukanya Pillay on July 30, 2014
We understand that for two years, members of the press have been denied requests to interview Omar Khadr, by Correctional Service Canada. At the same time, many statements about Mr. Khadr have been made by government officials to the media. The Toronto Star, CBC, and White Pine pictures have filed an action for judicial review of Correctional Service Canada. We believe that the public has a right to hear from Mr. Khadr.
The CCLA has always taken the position that freedom of the press and freedom of expression are cornerstone rights in a democracy. In our view, freedom of expression includes not only Mr Khadr’s rights to express himself, but also the public’s right to hear from Mr. Khadr. Indeed, the communication of ideas, including informed analysis and reporting by the media, is an indicator of a healthy functioning democracy. In this particular case, the Government has repeatedly expressed its views on Mr. Khadr’s case and it is only fair play in a democracy that other voices — including Mr Khadr’s himself — have equal air time.
Omar Khadr is a Canadian citizen who at age 15, was accused of throwing a grenade that killed US Sgt. First Class Christopher Speer. After over 10 years in custody in Guantanamo Bay, Mr. Khadr confessed to this act, was subsequently transferred to Canada, and later recanted his confession claiming it was done to facilitate his transfer to Canada and his disbelief that he would be afforded fair trial or due process in US military court processes. The CCLA had argued that Mr. Khadr’s alleged offences had occurred when he was a youth and therefore the international law rules applying to child soldiers must apply — for more information on CCLA’s positions click here.
Mr. Khadr has expressed his intention to speak to the media. We understand that US Sgt. First Class Layne Morris, who was blinded in one eye during the same 2002 battle, has stated that he would like to hear from Mr. Khadr. In our view the public interest and public safety is best served in this case by upholding Mr Khadr’s right to express himself and the the public’s right to know and hear from Mr Khadr.
For more information on CCLA’s position on Omar Khadr’s case see here:
Cara Zwibel on June 6, 2014
On June 5, 2014 CCLA appeared before the House of Commons Standing Committee on Justice and Human Rights as part of its consideration on Bill C-13, the government’s so-called cyberbullying legislation. Other than creating a new offence to deal with the non-consensual distribution of intimate images, the Bill has very little to do with cyberbullying. It includes a number of new investigative powers available to police and other public officers that may be applied to all offences. CCLA has a number of concerns about the Bill and highlighted these concerns in its testimony. In particular, CCLA believes the new offence (non-consensual distribution of intimate images) may be addressing a gap in the current law, but is draft in a way that is overly broad and unreasonably restricts freedom of expression. CCLA also takes issue with a number of the new investigative powers, some of which allow access to a detailed profile of an individual’s activities on the low standard of “reasonable grounds to suspect”. In addition, the powers do not come with appropriate accountability and transparency mechanisms.
Cara Zwibel on May 30, 2014
On May 28, 2014, Ontario’s Divisional Court released its decision in Taylor-Baptiste v. OPSEU, confirming the right of the Ontario Human Rights Tribunal to consider Charter values, including freedom of expression, when assessing whether there has been discrimination under the Ontario Human Rights Code. The CCLA had intervened in the case to promote a robust understanding of when and how tribunals can consider the Charter in their decision-making. The judgment also has implications for employee privacy and freedom of expression in the Internet age.
The case arose in the context of a fractious labour dispute between management and correctional officers at a Toronto-area jail. The union representing workers at the jail created a blog to communicate with members. After an incident in the workplace, the union local president published a post criticizing the performance of a female manager. Unfortunately, the blog post used demeaning and sexist language to describe her. The manager subsequently applied to the Human Rights Tribunal, arguing that the blog post constituted discrimination with respect to employment – which is prohibited under section 5 of the Ontario Human Rights Code. However, the Tribunal ultimately concluded that the post did not fall under the Code. In reaching this decision, the Tribunal relied on a number of different factors: there was no evidence that the union president worked on the blog while at work; his posts focused on issues of union-management concern; the manager occupied a position of relative power in the workplace. Among other things, the Tribunal noted that Charter rights were engaged by this scenario – particularly freedom of expression and freedom of association. Ultimately, the Tribunal concluded that, in this particular case, the blog post was not covered by the relevant provision of the Human Rights Code.
The manager asked the Divisional Court to review this decision arguing, in part that it was inappropriate for the Tribunal to invoke the Charter in this context. CCLA’s intervention in the case focused on persuading the Court that administrative tribunals are not only entitled, but required, to consider Charter rights, among other factors, when making rendering judgments. In this case, the Charter was relevant to deciding whether the Human Rights Code applies to a particular constellation of facts. This approach is necessary to ensure that the Charter is woven into the fabric of everyday administrative decision-making.
The Taylor-Baptiste decision also has ramifications for employee privacy and freedom of speech in the Internet age. Employees often turn to blogging, social media and other online platforms to express themselves after work hours – sometimes on issues that are connected to their jobs. The Tribunal held that some of these communications may be covered by the Human Rights Code, but not all. In each case, the Court or Tribunal will consider the entire context to determine whether there was a sufficient connection between the communications in question (e.g. a blog post) and the workplace. CCLA applauds the Divisional Court’s decision which led to a a sensible and nuanced result.