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 email@example.com or Matt Cohen (PBLO) at firstname.lastname@example.org.
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.
By 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/
By 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:
By 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.
Read the notes from CCLA’s presentation before the Committee.
Read CCLA’s written submissions to the Committee.
Watch the Committee’s meeting from June 5, 2014.
By 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.
Read the CCLA’s factum before the Divisional Court.
By Cara Zwibel
on March 27, 2014
CCLA is very concerned about reports coming out of the province of Quebec that individuals, particularly students, are facing barriers in registering to vote in the upcoming provincial election. Media reports suggest that people who are eligible to vote have been turned away when registering on the basis that they could not establish their domicile or an intention to remain in Quebec. Many reports suggest these people have documentation that establishes their eligibility but are nevertheless turned away. It is not the first time that CCLA has raised concerns about unclear voting rules resulting in disenfranchisement.
If you have encountered difficulty registering to vote in Quebec, but believe you meet the requirements, please contact Cara Zwibel, Director of the CCLA’s Fundamental Freedoms Program, at email@example.com.
By Cara Zwibel
on March 17, 2014
CCLA has been granted leave to intervene in Loyola High School, et al. v. Attorney General of Quebec. This case, scheduled to be heard by the Court on March 24, 2014, is the second time that the Court will consider an issue related to 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.
While CCLA recognizes that freedom of religion is often thought of as an individual right, it also has significant associational and expressive aspects. Therefore, in certain cases, where a non-profit institution is primarily a vehicle through which individual members exercise their own freedom of religion, association and expression, the institution itself can make a claim under the Charter freedom.
Read CCLA’s factum in the case here.
By Cara Zwibel
on February 27, 2014
CCLA is seriously concerned about the detention of Mohamed Fahmy in Egypt. Mr. Fahmy is a Canadian citizen and a journalist.
We commend the Canadian government for providing consular assistance, and for highlighting the rights to freedom of expression and the need to protect journalists. Both Canada and Egypt are state parties to the International Covenant on Civil and Political Rights (ICCPR) which protects not only freedom of expression but also fair trial rights. Both of these rights are implicated in Mr. Fahmy’s situation.
As fellow state parties to the ICCPR, Canada has the right to insist that Egypt comply with its legal obligations under the ICCPR which includes upholding freedom of expression, the rights of journalists and all fair trial rights. We call upon Canada to continue to provide consular attention to Mr Fahmy, with particular regard to the specific observations of Justices O’Connor and Iacobucci regarding consular visits made in the two Federal Commissions of Inquiry.