on March 27, 2015
The CCLA is concerned about reports this past week that Quebec police have allegedly shut down protests in Montreal and Quebec City, and on occasion reportedly used force. The right to protest is constitutionally protected in Canada. Legitimate dissent, expression and protest are the hallmarks of a democratic society; police have a duty not only to respect peaceful protests but to facilitate such protests. The CCLA is also seriously concerned about reports of the use of force against protestors and mass arrests. Our concerns are set out in more detail below.
By Cara Zwibel
on March 19, 2015
The Supreme Court has rendered its decision in Loyola High School v. Quebec (Attorney General). The case examines the province of Quebec’s Ethics and Religious Culture (ERC) curriculum which was put in place several years ago when the province went through the process of moving away from a confessional system of education. Loyola, a private Catholic high school in Montreal, sought an exemption from the Minister of Education on the basis that it taught a course that was equivalent to the ERC course but was in keeping with its mission as a Catholic school. The Minister denied the exemption arguing, in part, that as a religious institution (and not an individual), Loyola could not make a freedom of religion claim under the Canadian Charter of Rights and Freedoms or the Quebec Charter of Human Rights and Freedoms. The Minister also took the position that a denominational course could not be equivalent to the ERC.
The CCLA intervened in the case in light of its importance to the more general understanding of freedom of religion in Canada. Before the Court, CCLA argued that while freedom of religion is often thought of as an individual right, it also has significant associational and expressive components. Therefore, in certain cases, where an institution is primarily a vehicle through which individual members exercise their own freedom of religion, the institution itself can make a claim under the Charter. CCLA also argued that the Minister was required to consider freedom of religion in making its determination on the exemption. The Supreme Court decision contains two sets of reasons, but both affirm that freedom of religion has communal aspects that will benefit from Charter protection and that the Minister had to consider freedom of religion in making the exemption decision in this case.
The Supreme Court judgment recognizes strong protections for freedom of religion. Four judges formed the majority and found that the Minister’s decision denying Loyola the exemption was unreasonable because it precluded Loyola from teaching Catholicism from a Catholic perspective. This infringed on religion freedom in a way that was disproportionate to the scheme underlying the ERC. The majority sent the decision back to the Minister for reconsideration. While the majority found that it was not necessary to decide whether corporations enjoy religious freedom in their own right under the Charter, the decision recognizes clearly that freedom of religion has communal aspects and, in any event, the Minister was bound to consider the Charter-protected religious freedoms of members of the Loyola community.
Three judges wrote a separate opinion, that concurred only partially in the result. The concurrence explicitly held that the collective aspect of freedom of religion is protected by the Charter and that an organization can benefit from freedom of religion protection where the organization is (1) constituted primarily for religious purposes, and (2) its operation accords with these purposes. The concurring decision acknowledges that claims brought by organizations will be different from those brought by individuals, and provided some guidelines for how to consider evidence in these kinds of cases. At the same time, the concurrence recognizes that it will be left to future cases to test the boundaries of when an organization can claim protection under freedom of religion. The concurring judges also would have simply granted Loyola the exemption, rather than sending the case back to the Minister for a decision.
Read the CCLA’s factum here.
Read the Supreme Court’s decision here.
By Cara Zwibel
on March 18, 2015
Since the government tabled Bill C-51, CCLA has been speaking out about our concerns about the Bill. CCLA has sent a written brief to the Standing Committee on Public Safety and National Security, summarizing some of our primary concerns about the Bill. Read those submissions here.
We were also fortunate to have the opportunity to appear before the Committee on March 23, 2015. CCLA Executive Director and General Counsel, Sukanya Pillay, appeared on CCLA’s behalf. You can read her speaking notes here. The webcast of the Committee hearing can be viewed here.
By Cara Zwibel
on March 6, 2015
This morning the Commissioner of the RCMP, Bob Paulson, appeared before the House of Commons Committee on Public Safety and National Security to talk about the ongoing investigation into the actions of Michael Zehaf-Bibeau in Ottawa on October 22, 2014. He also showed the Committee part of a video that Zehaf-Bibeau made just prior to shooting Cpl. Cirillo at the National War Monument. The Commissioner explained that a total of eighteen seconds had been edited out of the beginning and end of the video, due to concerns about impact on the ongoing investigation.
Next week the Committee will begin hearings on Bill C-51, the government’s sweeping proposed anti-terror legislation. Commissioner Paulson was clear that the release of the video was in response to the Committee’s request and that it is not intended to influence the Committee’s consideration of the Bill.
The Commissioner’s testimony did not suggest that our current laws are inadequate to the task of fighting terror. To the contrary, the Commissioner stated that there was no legal impediment to the investigation or gathering of evidence in relation to Zehaf-Bibeau. Had he survived his attack on Parliament Hill, Zehaf-Bibeau would have been charged with existing terrorism offences under the Criminal Code.
In terms of the necessity and the potential impact of Bill C-51, a few important points come out of the Commissioner’s appearance:
- Zehaf-Bibeau had applied for a Canadian passport but was told his application was being reviewed. The Commissioner noted that there is a Task Force involving a number of agencies (including CSIS, CBSA, CIC, etc) to share this kind of information. This directly contradicts one of the proposed rationales for the new law. The government’s backgrounder on the Security of Canada Information Sharing Act (part of C-51) states that there are barriers to information sharing and provides as an example that “Citizenship and Immigration Canada is limited in its proactive sharing of passport and immigration and related information with national security agencies.”
- Bill C-51 creates a new offence of advocating or promoting terrorism offences in general and allows for seizure and deletion of “terrorist propaganda”, including materials that advocate or promote terrorism. If the Bill is passed, would Canadians (including Parliamentary Committees) be denied the opportunity to see this video? Could a Court order that it be deleted from Canadian internet sites? The new law would have a significant impact on freedom of expression and freedom of the press. Is this appropriate?
- Commissioner Paulson stated that Zehaf-Bibeau did speak to friends and family about his views and that there were missed opportunities (by some of these individuals), to recognize concerning behavior and report it. The Commissioner also stated that people are sometimes concerned that going to the authorities will result in jail or punishment for the individual they are concerned about. These concerns will only be heightened by Bill C-51’s new offence of advocating and promoting terrorism – which applies to both public statements and private conversations.
- Commissioner Paulson did express some concerns about the process for obtaining a peace bond, pointing to the recent Montreal case as an example. In that case, the Crown sought a terrorism-linked peace bond against a young man, with the consent of the Attorney General. The hearing for the peace bond has been put off for a month. Although the Commissioner could not say exactly why this is the case, he did suggest the proposed legislation would be helpful. Bill C-51 would lower the thresholds for obtaining a terrorism-related peace bond. However, even with the changes proposed, individuals must still have an opportunity to consider the case against them, which may require a delay in a hearing. The Bill also does nothing to address the allocation of court resources.
The events that occurred in October 2014 were tragic and it is important that the public have information about what happened and what, if anything, could have been done to prevent it. The threat of terrorism needs to be addressed, but Bill C-51 is not the answer. CCLA continues to state its firm opposition to the Bill. Although we have unfortunately not been invited to appear before the Committee, we will be submitting a written brief which will be available on our website shortly.
By Cara Zwibel
on February 19, 2015
|RELEASE: Rights groups welcome statement from eminent Canadians calling for review and oversight of national security activitiesFebruary 19, 2015 –
For immediate release
Today, a group of 22 eminent Canadians, comprised of former Prime Ministers, Ministers of Justice, Ministers of Public Safety, Solicitors General, Supreme Court of Canada Justices, and members of national security, law enforcement and privacy review bodies, published a statement in The Globe and Mail and La Presse
calling urgently for an enhanced approach to national security review and oversight in the country. The group includes men and women whose public service, in areas where they have been responsible for addressing wide-ranging national security challenges, stretches from 1968 to 2014.
This important statement comes at a time when Canada is considering a radical expansion of national security powers across government, but has made no equivalent proposals for strengthened review and oversight of the agencies and departments responsible for national security.
Amnesty International, the BC Civil Liberties Association, the Canadian Civil Liberties Association, the International Civil Liberties Monitoring Group, La Ligue des droits et libertés, and the National Council for Canadian Muslims strongly support this statement, which highlights the importance of robust review and oversight for the three critically important and inter-connected reasons of protecting human rights, strengthening national security, and building public trust and governmental accountability, makes clear that strong accountability mechanisms lead to better security for all Canadians: “Canada’s national security policies and practices must be effective in order to protect public safety. Independent oversight and effective review mechanisms help ensure that resources devoted to national security activities are being utilized effectively and efficiently.”
Read the full statement, including the names of the 22 endorsing individuals, here.
For our reactions to the statement, contact:
Amnesty International Canada (English Branch): John Tackaberry, 613.744.7667, extension 236
Amnistie internationale Canada francophone: Anne Sainte-Marie, 514.766.9766, extension 230
BC Civil Liberties Association: Carmen Cheung, Senior Counsel, 604.630.9758
Canadian Civil Liberties Association: Sukanya Pillay, Executive Director & General Counsel, 416.363.0321
International Civil Liberties Monitoring Group: Roch Tassé, National Coordinator, 613.241.5298
La Ligue des droits et libertés: Lysiane Roch, Responsable des communications, 514.715.7727
National Council for Canadian Muslims: Ihsaan Gardee, Executive Director, 613.254.9704
By 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.
Read CCLA’s factum.
Read the Divisional Court’s decision.
By 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
By 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.
By 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.
Read CCLA’s factum here.
By 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.
In the meantime, if you are a defendant in a case you believe to be a SLAPP and need legal help, please contact Cara Zwibel (CCLA) at firstname.lastname@example.org or Matt Cohen (PBLO) at email@example.com.
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.