By Noa Mendelsohn Aviv
on November 15, 2012
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.
To read CCLA’s submissions, click here.
on October 17, 2012
CCLA welcomes the decision of the Alberta Court of Appeal in the case of Lund v. Boissoin which considers the hate speech provisions under Alberta’s human rights code. The case concerns an opinion piece that was published by a newspaper and was strongly critical of those in the gay rights movement.
A complaint against the author was submitted and the Alberta Human Rights Commission Panel found that the opinion piece did constitute hate speech within the meaning of the statute. On appeal, the Alberta Court of Queen’s Bench overturned this decision. Adopting one of the arguments that CCLA had made in its intervention before the Court, the Judge found that the provision only applies to hateful expression that itself signals an intention to engage in discriminatory conduct or seeks to persuade others to do so in a way that makes it likely that prohibited discrimination will occur.
The Alberta Court of Appeal agreed with this interpretation and unanimously dismissed the appeal.
CCLA intervened at the Alberta Court of Appeal to urge the Court to uphold this reading of the legislation to ensure that speech is not chilled. While CCLA strongly repudiates the content of the opinion piece at issue in the case, freedom of expression is a core value in our democracy and the proper response to speech that is hateful or offensive is to denounce it, not silence it.
CCLA was represented by Janet McCready, from Peacock Linder & Halt LLP, a Calgary-based law firm.
>> To read the Court of Appeal decision, click here
>> To read CCLA’s factum, click here
>> To read about CCLA’s prior involvement in the case, click here
on October 4, 2012
The Federal Court of Canada yesterday issued its ruling in Warman v. Lemire, a case concerning the constitutionality of the hate speech provisions in the Canadian Human Rights Act (CHRA). The Court upheld the constitutional validity of the hate speech provisions in the CHRA while holding that the penalty provisions do not meet constitutional scrutiny. CCLA had argued that the severance of the penalty provisions alone in this case is not an appropriate remedy to correct the unconstitutionality of legislation which limits the right to free expression.
CCLA has long advocated that this law is a vague and an unjustifiable restriction on freedom of expression that should be struck down. This is not to say that hate speech is acceptable. Canadian society should be extremely concerned about prejudiced or discriminatory statements. Individuals and organizations should speak out loudly against hateful comments – among friends, in our communities, in print media and online. Individuals who express hateful opinions should be called out and criticized. CCLA believes that the answer to hateful or offensive speech is more speech, not censorship.
The issue is not completely resolved as a private member’s bill has been introduced in Parliament that would repeal section 13 of the Canadian Human Rights Act, the very provision at issue in the Warman v. Lemire case and has been passed by the House of Commons and is currently debated at the Senate and if adopted, will come into force within a year. In the meantime, the issue of vague hate speech provisions in human rights statutes is before the Supreme Court of Canada in Whatcott v. Saskatchewan Human Rights Commission, a case in which CCLA also intervened.
>> To read the decision of the Federal Court of Canada in Warman v. Lemire, please click here
>> To view CCLA’s Factum in Warman v. Lemire, please click here
>> To view CCLA’s Factum in Whatcott v. Saskatchewan Human Rights Commission, please click here
on September 27, 2012
The Canadian Civil Liberties Association generally welcomes the decision handed down today by the Supreme Court of Canada in A.B. v. Bragg Communications Inc, a case which raised questions around the open court principle, freedom of expression, and access to justice in the context of a case involving a minor who had been cyber-bullied.
In March 2010, a youth in Nova Scotia, A.B., discovered that someone had created a fake Facebook page purporting to be hers. The bogus profile included her photograph and other identifying details, along with what a judge later called “scandalous sexual commentary of a private and intimate nature.” Shortly thereafter the Facebook page was taken down. A.B., through her litigation guardian, applied for an order requiring the Internet Service Provider (ISP), identified by Facebook as the host of the originating Internet protocol (IP) address, to provide her with the name and address of the person(s) who created the bogus page. In her application, she stated that she wished to discover the identity of the profile creator(s) so that she could pursue a defamation suit against them.
In her application, she also asked the court to conceal her identity by allowing her to proceed by initials, and to ban the republication of the actual words contained in the face Facebook profile. Although the ISP agreed to disclose the information with a court order, two news outlets successfully objected to the other requests as infringing upon the open court principle. The Chambers judge found that there was no evidence before him that A.B. would face serious risk of harm without a total publication ban and anonymity: a requirement of the Dagenais/Mentuck test to limit the primacy of open courts.
A.B. appealed. She argued that a minor should not have to prove that actual harm would occur if the offending material were repeated, or her name made public. Rather, the courts should take judicial notice of the damage suffered by minors in cases like this, and automatically protect their privacy. The Nova Scotia Court of Appeal disagreed and upheld the Chambers judge’s decision. The case was appealed to the Supreme Court of Canada.
CCLA welcomes the Supreme Court’s decision which affirms that an anonymity order is more appropriate than a publication ban in this case for reconciling issues surrounding the open court principle, freedom of expression, privacy, and access to justice. This is consistent with the position CCLA adopted in its submissions. Such a ban protects A.B.’s privacy concerns without concealing details surrounding the case from the public eye. This key information would allow the public access to the speech whose permissibility could be on the line in a defamation case; it would also allow others who may be targeted in a similar way to consider whether the case applies to their situation; and, finally, it could enhance the broader social response to the problem of bullying.
However, CCLA expresses concern about the Supreme Court’s approach to the evidential burden placed upon a party seeking a judicial order that will limit freedom of expression or the press. In particular, the Court’s endorsement of an ‘objectively discernible harm’ standard in the case of minors may have the effect of creating a blanket exemption policy. CCLA intervened to endorse the Dagenais/Mentuck test, which requires the party seeking a judicial order that will limit freedom of expression or the press (such as a publication ban or anonymity order) to provide clear and specific evidence that serious harm would flow from publication of the information which he or she seeks to conceal . In CCLA’s view, this approach protects two important public interests – open courts and access to justice. CCLA also takes the position that any restrictions placed upon freedom of expression and the media are best addressed through a rigorous case by case approach using a high evidentiary standard rather than the use of blanket exemptions.
Iris Fischer and Dustin Kenall, of Blake, Cassels & Graydon LLP, represented the Canadian Civil Liberties Association in this case.
>> Click Here to Read CCLA’s Factum
>> Click Here to Read More About our Intervention
on September 4, 2012
CCLA has made submissions to Bernard Richard, the former Ombudsman of New Brunswick, for his review of the arrest and investigation of Charles LeBlanc for criminal libel that took place earlier this year in Fredericton. CCLA’s submissions focus specifically on freedom of expression and police accountability issues that arise from this incident, in particular: i) the unconstitutionality of criminal defamation; ii) how public officials ought to respond to offensive speech in a liberal democracy; and iii) CCLA’s concern with the execution of the search warrant with regard to Mr. LeBlanc’s computer.
CCLA argues that the defamatory libel offences in the Criminal Code are unconstitutional and their use can place a chill on expression. Responses to offensive, false or distasteful speech are primarily a communication—not a criminal or legal—issue, and public officials and institutions ought to use “the least chilling means” to protect the democratic function of freedom of expression when responding to speech believed to be beyond the bounds of acceptability. As well, this case raises questions regarding the proper exercise of police investigative powers in the face of communication technologies such as computers which, along with the internet, can allow access to a vast amount of private data. Police should not use search and seizure powers punitively or to remove an individual’s medium of expression simply because what he or she says is disliked.
>> Click here to download CCLA’s submissions
on August 3, 2012
The 2012 Summer Series is a collection of essays, articles and op-eds published by the Canadian Civil Liberties Association. The Summer Series explores some key questions about rights and responsibilities in democracy and examines topical issues through a civil liberties lens.
To view all articles of the Summer Series, click here.
When a local British bakery arranged its bagel display as the Five Rings Symbol, it was ordered to remove it. The ” Olympic” Café also changed its name to the “Lympic” Café after its owner was threatened with a law suit. This is what zealous protection of a trademark looks like: wanting to limit the use of the Olympic brand for fear that it will lose its value, the IOC cracks down on unauthorized Olympic expression. It worries that the valuable sponsors will no longer be willing to pay to be rightfully associated with the Olympic brand, if the brand is too widely used.
The protection of commercial trademarks can take place at the expense of freedom of expression. To criticize, to make a parody, to celebrate or denigrate the Olympics, one may want to use its symbols. Corporations who own trademarks may welcome the free publicity that they get when people use their slogans , logos or names, as in ” You look straight out of Mad Men” or “Just Do it”. However, many resent having their precious image and brand used to criticize them or associated with campaigns that they do not approve. In that case, they may send a threatening letter demanding that the website owner, painter, or filmmaker cease and desist, and stop using a particular brand, logo, name, colour, or groups of colour. How far can that go?
As a defender of free expression, the Canadian Civil Liberties Association, is always concerned when manners of speaking, of writing, of painting or of creating are curtailed. We are particularly concerned when it is done in the name of the law. Many people are intimidated by the threats, veiled or more evident, of a letter from a lawyer, and will quickly comply to avoid any law suits, just as the Olympic Café became the Lympic Café in order not to offend the powerful Olympic Committee. At times, people may obey even if there is no reason to do so, because they fear the expense of defending themselves. If something like that has happened to you, if you have received a letter, notice, order to desist from using a particular logo, colour, name in your political or artistic work, call us.
CCLA is interested in monitoring the use of Strategic Lawsuits Against Public Participation (SLAPPs) and protect free expression, particularly in relationship with trademarks.
What is a SLAPP?
Strategic lawsuits against public participation (SLAPP) are lawsuits targeted against individuals or groups who have spoken out or taken a particular position on a matter of public interest. The effect of SLAPPs is to silence voices through intimidation and the threat of expensive litigation. Resources are redirected to dealing with the legal matter and away from the original public criticism. The CCLA is concerned about this potential misuse of the civil justice system by powerful litigants to quash meaningful counter-perspectives and dissent on issues of public importance. We are also concerned about the chilling effect SLAPPs can have on other potential participants in public debate.
What is a trademark?
A trademark is a mark that is used as a way to indicate the source of commercial wares or services. It serves to distinguish those wares and services of one maker from those of others. So, for example, a consumer who encounters a running shoe with a swoosh on it, will know that it was produced by the Nike Corporation. In recent years, with the rise in “branding,” trademarks have come to express complex and shifting messages about identity. This is one of the reasons that trademarks have come to be culturally significant for commercial and critical purposes, with individuals and organizations seeking to engage them in their expressions.
The boundaries of trademark infringement remain unclear, as there is a push for the expansion of trademark rights alongside a pushback from those who recognize the important role trademarks play in other areas of cultural expression.
If you’ve got a story about trademark-related SLAPPs, threatening legal letters or other attempts to intimidate, we’d like to hear it! Please contact us at: firstname.lastname@example.org.
Nathalie Des Rosiers
on July 25, 2012
CCLA has written to the City of Oshawa and the City of Windsor about two separate cases in which residents have received notices excluding them from city property. We have written to express our concern over the impact of such bans on freedom of expression.
A democracy embraces the role of residents in debates about its governance. Governments should not be able to exclude residents from participation in public life, except in the rarest of circumstances and subject to fair procedures.
Read CCLA’s letter to the City of Oshawa here.
Read CCLA’s letter to the City of Windsor here.
on June 12, 2012
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.
Read the full piece (in french) here.
on May 30, 2012
CCLA has written to Fredericton’s city administrator, who is looking into the city’s options for a public review of the arrest and investigation of blogger Charles LeBlanc in relation to comments he made on his blog about a city police officer. Earlier this year, Mr. LeBlanc was arrested and his computer searched and seized under a rarely used Criminal Code defamation provision that has been found unconstitutional in multiple jurisdictions. CCLA, along with law professors and other community members, had been demanding that charges not be laid because of the unconstitutionality of the provision and the potential chilling effect it would have on freedom of expression.
Earlier this month, the Attorney General of New Brunswick decided not to proceed with charges, finding it highly unlikely that any court in the province would find the Criminal Code section constitutional. While we are pleased with this recognition of the section’s unconstitutionality and the decision to abandon charges under it, there remain important questions that need to be answered with regard to the appropriateness of the police investigation in this matter.
In our letter, we assert that any inquiry into the actions of the police forces involved in the case must be prompt, credible, comprehensive and transparent in order to restore public confidence in policing. While the chilling effect this case has had on freedom of expression in the community will likely linger, an independent and impartial review will help repair the trust between the public and policing in Fredericton.
Read more about CCLA’s involvement in the case here.
Read CCLA’s letter to the City of Fredericton here.
By Noa Mendelsohn Aviv
on May 23, 2012
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.