The CCLA seeks to ensure that the criminal law is flexible enough to allow the judiciary to fashion appropriate and proportionate responses to criminal conduct on a case-by-case basis.
Noa Mendelsohn Aviv on September 17, 2014
The case of P.S. v. Ontario concerns an individual detained for over 18 years in a maximum security mental health facility, despite a broad consensus that he does not need to be in maximum security, and significant evidence that he may not need to be in an institution at all and may be eligible for a community placement. Mr. S. is deaf and pre-lingual, however his disability and language needs were reportedly not accommodated by the institution, apparently leading to intense social isolation, lack of adequate assessment and treatments, and ultimately the lengthening of his detention.
CCLA intervened in this case to argue, before a 5 judge panel at the Ontario Court of Appeal: that there need to be adequate safeguards for people in involuntary detention under the Mental Health Act; that mental health detainees are entitled to Charter protection of their rights; that the Charter applies to non-government hospitals that function as detention facilities; and that the court must consider the compound nature of fundamental rights violations where applicable. CCLA’s submissions appeared to be of interest to the 5 judge panel, who referred to CCLA’s arguments a number of times during the hearing. CCLA is grateful to the work of counsel David Morritt and Eric Morgan (Oslers).
To read CCLA’s factum, click here.
Abby Deshman on August 8, 2014
On August 6, 2014, the Ontario Divisional Court decided that hundreds of individuals who were detained and arrested in mass police cordons during the G20 can have their legal claims heard together as a class action. Hundreds of those detained at the Eastern Avenue Detention Centre may also have their claims jointly heard as part of a related class. The Court’s decision recognizes the seriousness of the claims being brought forward and the alleged conduct of the police on that weekend in June 2010. As stated by Justice Nordheimer, who authored the unanimous decision:
“If the appellant’s central allegation is proven, the conduct of the police violated a basic tenet of how police in a free and democratic society are expected to conduct themselves. Their actions, if proven, constitute an egregious breach of the individual liberty interests of ordinary citizens. On this view of the respondent’s conduct, it is not hyperbole to see it as being akin to one of the hallmarks of a police state, where the suppression of speech, that is uncomfortable for those in positions of power, is made a prime objective of those whose job it is to police the public.”
CCLA filed evidence in support of the motion for certification, and has continued to be involved in other post-G20 accountability efforts including ongoing disciplinary proceedings against the senior Toronto Police Service officer who ordered several of the mass arrests. You can learn more about the ongoing class action, including who is included within the class, at http://www.g20classaction.ca/. To read more about CCLA’s actions before, during and after the 2010 G20 Summit click here.
Read the decision here.
Read the full press release from Klippensteins Barristers & Solicitors here.
Abby Deshman on August 6, 2014
On Friday August 1st the Supreme Court released its decision in R v Hart, a case that examined whether the existing legal limits on a police investigative tactic known as “Mr. Big” were sufficient to protect individuals’ rights and ensure fair trials. The Court agreed with the position advanced by CCLA and a number of others that the existing limits on this particular police technique were not sufficient, and crafted a new more rigorous test aimed at ensuring that police activities in these undercover operations do not produce false confessions and are not abusive.
The “Mr. Big” tactic is a specific type of undercover police operation. Police target a suspect, befriending him or her and slowly involving the suspect into the activities of a fictitious criminal organization. The suspect is given financial rewards and friendship, with the promise of more money and support to come. Eventually, he or she is introduced to the crime boss – “Mr. Big” – who must approve the suspect’s involvement, and presses him or her for a confession to the unsolved crime.
As recognized by the Supreme Court, there are numerous dangers involved in this type of police operation: “Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats.” In short, it is an inherently coercive process that can result in false confessions. Introducing the confession in court also necessarily involves detailed testimony of the suspect’s willingness to commit other crimes and join a criminal organization – information that can easily prejudice a jury against the accused.
In recognition of these dangers, the Supreme Court established strong new rules governing the admissibility of Mr. Big confessions. These confessions will now presumptively be inadmissible, and it will be up to the Crown to prove that they are reliable enough to be used as evidence. The conduct of the police will also be scrutinized: “No matter how reliable the confession, the courts cannot condone state conduct – such as physical violence – that coerces the target of a Mr. Big operation into confessing.”
CCLA welcomes the newly restrictive rules governing these coercive police techniques.
The Canadian Civil Liberties Association (CCLA) has released a report: Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, which questions the extensive rise in pre-trial custody populations and identifies the extreme personal and financial costs of current practices in Canadian bail courts.
Despite a falling crime rate, the remand rate in Canada has nearly tripled in the past 30 years. Currently the majority of people detained in provincial and territorial jails are legally innocent, waiting for their trial or a determination of their bail. 2005 marked the first time in Canadian history that our provincial institutions were primarily being used to detain people prior to any finding of guilt, rather than after they had been convicted and sentenced.
CCLA is aware that this is an issue various governments are actively struggling with, and looks forward to constructive engagement with all justice and law enforcement actors to try to address some of the trends identified by the report.
The report outlines a series of recommendations including:
Please join the Canadian Civil Liberties Association on July 23, 2014, for the release of its new report on bail and pre-trial detention. The report, which is the result of a year-long study of the operation of bail in five provinces and territories, highlights Canada’s increasing reliance on pre-trial detention, presents new data about the operation of bail courts, and calls on governments and court professionals to institute reforms in the law and practice of bail. Report authors and/or other experts will be available for comment in both Toronto, Ontario and Winnipeg, Manitoba.
Sukanya Pillay, CCLA General Counsel and Executive Director
Report authors Abby Deshman, CCLA Program Director and Professor Nicole Myers, Criminology, Simon Fraser University
Kim Pate, Executive Director, Elizabeth Fry Societies
Jacqueline Tasca, Policy Analyst, John Howard Society of Ontario
Corey Shefman, lawyer, Board Member of Canadian Civil Liberties Association and President of Manitoba Association for Rights and Liberties
John Hutton, Executive Director, John Howard Society Winnipeg
Wednesday July 23rd, 2014
Toronto: Canadian Civil Liberties Association, Suite 210, 215 Spadina Ave, Toronto, ON
Winnipeg: Winnipeg Law Courts (adjacent to sculpture), 408 York Avenue, Winnipeg, MB
Canada’s crime rate has been steadily falling for decades, and four out of five individuals brought before criminal courts are charged with non-violent offences. Nevertheless, our rate of pre-trial detention has increased by 300% in the past 30 years. Pre-trial detention, which is frequently carried out in over-crowded, maximum security institutions with frequently lock-downs and little to no programming, is generally recognized as one of Canada’s harshest forms of incarceration. The new report from the Canadian Civil Liberties Association details how Canada’s bail system is contributing to this problem and proposes recommendations for reform.
CCLA Media Fellow
416 363 0321 ex 225
Cara Zwibel on June 13, 2014
The Supreme Court of Canada has rendered its decision in R. v. Spencer, a case that considered the privacy interests that an individual has in Internet activities and affirmed that anonymity is a key component of the right to privacy. The Court also clarified a point of long-standing disagreement between privacy advocates and law enforcement authorities, and concluded – unanimously – that police require judicial authorization to obtain subscriber information from internet service providers. CCLA believes that the decision sends a clear signal that privacy rights exist in the digital world.
The decision arose out of the case of Mr. Spencer, who was charged with possessing and distributing child pornography. The police had information about an internet protocol (IP) address that had shared what was believed to be child pornography. The police sought information about the subscriber associated with the IP address Mr. Spencer’s internet service provider. The law enforcement request for information was purportedly made pursuant to a provision of the Personal Information Protection and Electronic Documents Act (PIPEDA), which is privacy legislation directed at protection of privacy in the private sector (i.e. information held by private entities). The information was handed over without a production order (an order that is similar to a search warrant) and the police then sought and obtained a search warrant to enter Mr. Spencer’s home and search his computer.
The Supreme Court had to address the question of whether the request for information from the internet service provider was a “search” within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms. The Court noted that while the basic information being sought (name, address and telephone number) appears mundane, the information that it would reveal about an individual – in particular, their activities online, was substantial. The Court also laid out that the nature of the privacy interest at issue in the case had three different aspects: privacy as secrecy, privacy as control and privacy as anonymity. The Court’s recognition of anonymity as a concept protected by section 8 echoed the arguments made in CCLA’s factum and may have wide-reaching implications for future cases.
The Court also had to consider whether Mr. Spencer had a reasonable expectation of privacy in the information that was obtained by the police (and the information that it revealed). The Court considered the impact of PIPEDA as well as the terms of service governing the relationship between the internet service provider and its customers. It concluded that these factors supported the existence of a reasonable expectation of privacy. In dealing with the proper interpretation of PIPEDA, the Court held that the legislation does not allow the police to simply obtain information which is subject to a reasonable expectation of privacy, merely by asking. In other words, PIPEDA does not create any search or seizure powers.
The Court concluded that Mr. Spencer’s Charter rights were violated but held that the evidence, on the facts of this case, should nevertheless be admitted. It considered that the police did not act with wilful or flagrant disregard of the Charter and that the belief that they were acting lawfully was a reasonable one. Given the seriousness of the offences, the Court held that it would bring the administration of justice into disrepute to exclude the evidence.
The implications of the decision are substantial, and may play a significant role in CCLA’s ongoing Charter challenge to PIPEDA. In particular, the Court’s decision confirms CCLA’s view that PIPEDA is legislation to protect privacy, and cannot be used to undermine it. CCLA was represented by Anil Kapoor and Lindsay Daviau of Kapoor Barristers.
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.
Noa Mendelsohn Aviv on May 9, 2014
CCLA expressed its support for a women’s right to choose, at an event that took place on May 8th in Charlottetown entitled “A Rally For Our Right to Accessible Abortion.” CCLA’s statement of support was read out at the rally. It expressed the organization’s view that women have the right to choose what happens to their bodies, and that the failure to provide safe, accessible abortion care is an unconstitutional violation of the right to life, liberty and security of the person.
To read CCLA’s statement, click here.
Noa Mendelsohn Aviv on May 1, 2014
The British Columbia Court of Appeal (BCCA) ruled that s. 117 – the “human smuggling” provision of the Immigration and Refugee Protection Act – was constitutional, in contrast to an earlier court’s finding in this case. The lower court in R v Appulonappa had found that the provision was overbroad and unconstitutional, as it could criminalize the conduct not only of human smugglers who sought to take advantage of individuals’ desperate situations for profit, or in connection with organized crime; it could also target individuals who are helping family or providing humanitarian assistance.
CCLA had intervened in the case to argue that the provision is both arbitrary and overbroad: It could criminalize a refugee mother who arrives in Canada with her baby, and a humanitarian aid worker. In addition, it could create the absurd situation in which a refugee protected under international law, could be rendered inadmissible to Canada for having engaged in the protected act of entering Canada, if he or she arrived with other refugees who were helping each other. CCLA was represented by Andrew I. Nathanson and Gavin Cameron (Fasken Martineau).
To read CCLA’s factum in this case click here.
To read the BC Court of Appeal decision click here.