Liberty/due process

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.

Liberty and Due Process is part of the Public Safety program. You can find more information about it on its main program page.

CCLA welcomes Supreme Court decision on credit for pre-trial detention

By on April 11, 2014

The Supreme Court released its decision in R. v. Summers this morning, ruling that a broad range of circumstances may justify giving an individual enhanced credit for pre-trial detention at the time of sentencing.  The Canadian Civil Liberties Association intervened in the case, arguing that individuals must not face a harsher sentence simply because they spent time in pre-trial detention or insisted on their right to a fair trial.  In order to ensure that sentencing is fair, a wide range of circumstances – including the effective delay of eligibility for parole and early release that will automatically result from pre-trial detention – must be taken into account when determining how credit for pre-trial custody is calculated. The CCLA welcomes the court’s ruling, which upholds the fundamental principles of fairness in sentencing.  As stated by the Supreme Court, “[a] system that results in consistently longer, harsher sentences for vulnerable members of society, not based on the wrongfulness of their conduct but because of their isolation and inability to pay, can hardly be said to be assigning sentences in line with the principles of parity and proportionality.”

The CCLA’s factum is available at http://www.scc-csc.gc.ca/factums-memoires/35339/FM060_Intervener_Canadian-Civil-Liberties-Association.pdf.

The Supreme Court’s decision can be accessed at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13586/index.do.

Supreme Court reaffirms robust habeas corpus review for Canadian detainees

By on March 28, 2014

On March 27, 2014 the Supreme Court of Canada released its decision in Mission Institution v. Khela, a case that examined the scope of court review on a habeas corpus application and the disclosure obligations correctional authorities owe when an individual is involuntarily transferred to a higher security correctional facility. Habeas corpus is a centuries-old legal writ that is an essential safeguard against illegal and unconstitutional detention.  As stated by the Supreme Court, it is “the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.” On a habeas corpus application, once an individual has shown the court that a deprivation of liberty has occurred and there is a “legitimate ground” to question its legality, the government bears the burden of proving that the imprisonment is lawful.

The Canadian Civil Liberties Association intervened in the case to argue that habeas corpus must continue to be a broad, flexible and responsive remedy that gives the fullest access and opportunity to prisoners to challenge the lawfulness of their detention.  Where a person is imprisoned through an unfair process, that imprisonment is unlawful – and individuals must be given enough information by authorities in order to know why their liberty is being restricted, and meaningfully answer any accusations against them.

The Supreme Court’s decision strongly upholds a robust habeas corpus review, and affirms that provincial courts can assess both the procedural fairness and the reasonableness of a decision in order to decide whether an individual’s detention is lawful. The Court also ruled that correctional authorities have significant disclosure obligations in an involuntary transfer context, and that information may only withheld “when the Commissioner has “reasonable grounds to believe” that should the information be released, it might threaten the security of the prison, the safety of any person or the conduct of an investigation.”

To read the CCLA’s submissions click here.

To read the Supreme Court’s decision click here.

CCLA applauds Ontario police chiefs for leadership on non-conviction records

By on February 26, 2014

For the past 18 months the CCLA has been engaging with members of the Ontario Association for Chiefs of Police, working collaboratively towards changing policing guidelines that presumptively allow for the release of non-conviction records on police records checks.  The release of non-conviction records has been a core issue for CCLA for many years – you can read about our previous work and learn more about why we are advocating for change at http://ccla.org/our-work/public-safety/police-background-checks-and-non-conviction-records/.

We are very pleased to announce that this morning, the OACP Executive approved a motion jointly proposed by the CCLA and OACP representatives to revise Ontario guidelines instituting a presumption against the release of non-conviction records on all levels of police checks.  A narrow, public safety exception will be developed to allow for the release of records where there is a risk to the safety of vulnerable community members.  We applaud the OACP’s leadership on this issue.  Releasing non-conviction records needlessly creates barriers to volunteering, education, employment, housing and community participation for thousands of individuals across the province – we are confident that the new guidelines will eliminate barriers for Ontarians while still protecting public safety.  We are looking forward to continuing cooperative collaboration on this and other policing issues in the future.

The specific recommendations that were endorsed today included short-term goals of engaging in public education on police records checks, revising the LEARN guidelines to insitute a presumption against disclosure of non-conviction records and crafting a narrow and truly exceptional public safety exception for the release of these records. In the long-term, the OACP has endorsed working for provincial change to provide legislative oversight and the implementation an evidence-based, centralized procedure for determining when non-conviction information can be disclosed.

Homicide – Verdict in the Ashley Smith Inquest

By on December 19, 2013

The jury of five delivered their verdict this morning, determining that Ashley Smith died as a result of homicide.

This is a sad victory, as justice can never be done for Ashley Smith.

However, CCLA is hoping it will result in a clear message sent to the Correctional Service of Canada that significant changes need to be implemented to ensure that such tragedies cannot recur.  CCLA will continue working to protect the rights of all incarcerated persons including in particular those with mental illness; to demand meaningful accountability; and to call for meaningful monitoring and oversight systems in the prisons.

We thank Allison Thornton (Koch Thornton LLP), assisted by Amy Slotek, for excellent representation of CCLA in this Inquest.

Who Guards the Guards: Prisons and Public Accountability – Public Lecture with Prof. Andrew Coyle

By on November 13, 2013

This October, CCLA invited Prof. Andrew Coyle to Toronto to testify as an expert witness at the Ashley Smith Inquest. Prof. Coyle is Professor Emeritus of Prison Studies in the School of Law, King’s College, University of London. Between 1997 and 2005 he was Director of the International Centre for Prison Studies in the same School of Law. Prior to that he was for 25 years a prison director in the prison services of the United Kingdom, where he governed four major prisons. He holds a PhD in criminology from the Faculty of Law in the University of Edinburgh. He has been an adviser on prison matters to the Office of the UN High Commissioner for Human Rights, the UN Latin American Institute, the UN Office on Drugs and Crime, The World Health Organisation, the Council of Europe and the OSCE.

On Wednesday, October 23, 2013 members of the public, specialists and professionals from the field of corrections, students and faculty from a diverse range of disciplines, including criminology, social work, law and social sciences, gathered at Ryerson University to hear Prof. Coyle speak. The public lecture was co-hosted by CCLA and the Ryerson University Criminology Department, and was entitled, “Who Guards the Guards: Prisons and Public Accountability.”

Download a summary of Prof. Coyle’s presentation here.

CCLA celebrates as Ontario Court of Appeal strikes down mandatory minimum as cruel and unusual punishment

By on November 12, 2013
This morning the Ontario Court of Appeal released its decision in R. v. Nur, striking down the mandatory minimum sentence of three years in jail for possessing a prohibited firearm that is loaded or near readily accessible ammunition.  CCLA intervened in Nur and one of its companion cases to argue that this mandatory minimum provision was unconstitutional.
CCLA has objected to mandatory minimum sentences for years, in large part because they restrict judges’ discretion to determine the sentence that is fit for the circumstances of the crime and the accused. At times, mandatory minimum sentences may impose grossly disproportionate amounts of jail time on individuals whose actions, while illegal, should not result in years of imprisonment.
As the Court of Appeal has now affirmed, the mandatory three-year jail sentence that attaches to s. 95(1) of the Criminal Code is one of those cases, amounting to cruel and unusual punishment in violation of s. 12 of the Charter. Although possession of a prohibited firearm sounds serious, the actual offence is very broad – so broad that it captures a range of behaviour that seems closer to a mistake in paperwork rather than criminal conduct.  Under s. 95(1), a person can be convicted without committing a “gun related crime”, without causing even a risk of harm to anyone and, in fact, without “using” a gun at all.  People who could be caught under this section of the Criminal Code would include:
  • a person who buys a ranch but doesn’t register the firearm that was in one of the buildings,
  • a firearms collection that is inherited by family members who never registered the guns,
  • a teenager shows off his father’s firearm at a party in a picture that is posted online,
  • a family member who transports a firearm to a person who is legally allowed to have it, or
  • an American tourist who brings a firearm to Canada that is licensed in the US but not in Canada.
For these individuals it would not matter that their intentions were good, that they acted responsibly, had no criminal record, that they had jobs, families and commitments.  The law simply states that, if the Crown proceeds by indictment, they must go to jail for three years.  These and other similar examples were considered by the Court of Appeal, which ruled that there was a “cavernous disconnect” between these types of illegal acts and the punishment that judges would be forced to impose – a sentence that is “so excessive as to outrage the standards of decency”.  Midway through the judgment the Court considers whether this type of cruel and unusual punishment could nevertheless be justifiable in a free and democratic society.  The Court’s words should be carefully heeded, not only as legally-binding constitutional doctrine, but also as a policy guidepost to legislators and politicians who frequently tout irrationally harsh criminal justice:
No system of criminal justice that would resort to punishments that “outrage standards of decency” in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry.  Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.
We couldn’t agree more.
To read more about CCLA’s position on mandatory minimums you can read  our op-eds here or here, or take a look at our submissions on the most recent omnibus crime bill which instituted mandatory minimums for drug crimes.

Supreme Court strongly underscores unique privacy interests in computers

By on November 7, 2013

Traditionally when the police get a warrant, they have broad authority to search through anything in the house that might uncover the evidence they are looking for.  If the warrant says they can look for documents, they do not need specific authorization to look inside filing cabinets, cupboards or boxes that are inside the house. But what about electronic devices? Does a general authorization to look for documents mean they can search through your computer, your smart phone, and every account connected to them? Is a computer just like any other physical ‘thing’ in your house that the police may want to search, or does it present unique privacy interests?  The CCLA intervened in R. v. Vu to address precisely this question, and urged the Supreme Court to find that the traditional rules for warrant-authorized searches needed to be tightened when it came to computers.

On November 7 2013 the Supreme Court released its decision, and strongly affirmed that computers and smart phones present unique privacy interests – and therefore require unique privacy protections.  The Court ruled that computers are not mere ‘things’ but operate more like a separate ‘place’, or a portal to many separate places, each of which have the potential to hold vast amounts of private, personal information.  In addition, unlike traditional household ‘things’, they track the user’s movements and actions by default – creating a trail of activity that most owners are unaware of and unable to delete.  As explained by Justice Cromwell,

The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search.

CCLA had also urged the Court to recognize a constitutional requirement on the police to document their search steps.  Ensuring that, when a computer is searched, the search is no more intrusive or extensive than authorized is a key component to limiting privacy invasions.  Indeed, in the Vu case, one police officer admitted he purposely took no notes of his computer search because doing so would have meant he would have to testify about his actions in court.  Although the Supreme Court declined to make search documentation a constitutional requirement, they did denounce the police conduct in this case, ruling that the police officer’s conduct was “clearly improper and cannot be condoned” and that “notes of how a search is conducted should … be kept, absent unusual or exigent circumstances.”

From now on, if police officers want to search computers pursuant to a warrant, they will have to get specific authorization to do so. And they had better take notes while they’re at it.

Read CCLA’s factum before the Supreme Court

Read the Supreme Court’s decision

Canadians Detained in Egypt: CCLA Calls for Government Intervention

By on September 30, 2013

The Canadian Civil Liberties Association has written to Prime Minister Stephen Harper urging him to directly intervene with the Egyptian government to demand the release of Canadians Tarek Loubani and John Greyson.  Both men have been detained in Egypt since the middle of August although no charges have been laid against them.  Over the last several weeks Egyptian officials have continued to extend the duration of the detention but have failed to lay any formal charges or afford the Canadians any due process.

CCLA is pleased that the Canadian government has issued a public statement calling for the immediate release of the Canadians but believes further direct and immediate intervention is required.  The continued detention of these two men is contrary to international law and allegations that they are being held in substandard conditions are deeply concerning.

Read CCLA’s letter to the Prime Minister here.

Supreme Court decisions on ‘reasonable suspicion’ searches set disconcertingly low bar for police

By on September 27, 2013

The Supreme Court released its decisions in R. v. MacKenzie and R. v. Chehil this morning, a pair of cases involving police searches with sniffer dogs and the ‘reasonable suspicion’ standard. CCLA is concerned that the Court’s general formulation of the reasonable suspicion standard – that the evidence must support a possibility of criminal behaviour in light of the circumstances – sets a very low bar for authorizing police detentions and searches.  Moreover, while a number of CCLA’s points were reflected in the Court’s broad statement of principles, the application of principles in these appeals gives rise to serious concerns about courts’ ability to meaningfully scrutinize and restrain police behaviour in such circumstances.

Currently under Canadian law, police are authorized to conduct a warrantless  sniffer dog search if they have a ‘reasonable suspicion’ that an individual is involved in criminal activity. CCLA had argued that a rigorous, restrictive approach must be taken when examining the content of the ‘reasonable suspicion’ standard.  As Justice Binnie stated in the first Supreme Court case that considered this issue, the court’s after-the-fact examination of police conduct is the only protection an individual has against this particular form of unlawful searches.  CCLA urged the Court to clarify that the police must be able to offer objectively-verifiable evidence, and a proven link between ‘suspicious’ facts they observed and crime.  Over-reliance on generalized malleable ’profiles’ of criminals or unsupported assertions of police expertise opens the door to stereotyping and profiling.  Assertion of rights – in particular the right to silence – must not be used to contribute to an officer’s ‘reasonable suspicion’. And finally, the number of innocent people who could be falsely caught up in warrantless searches and detentions must also be taken into consideration.

The unanimous judgment in Chehil does reflect a number of CCLA’s points. In particular, the Court held that exercise of Charter rights should not provide grounds for reasonable suspicion, and that stereotyping and discriminatory factors have “no place” in the reasonable suspicion analysis.  The Court also affirmed that a “police officer’s educated guess must not supplant … rigorous and independent scrutiny” and that “[a] method of searching that captures an inordinate number of innocent individuals cannot be reasonable, due to the unnecessary infringement of privacy and personal dignity that an arrest would bring.”  CCLA also welcome’s the Court’s rejection of the government’s arguments that individuals do not enjoy a reasonable expectation of privacy in airports.

The application of these principles, however, gives a potentially alarming latitude to the police to stop, search and detain private individuals.  In the MacKenzie case, the trial judge had concluded that there was not enough to support a ‘reasonable suspicion’ that Mr. MacKenzie was trafficking drugs.  The trial court’s summary of the officer’s reasons for suspicion included “the driver’s “very high level of nervousness”; … the pinkish hue of the driver’s eyes, which in the police officer’s opinion is consistent with the use of marihuana; and the course of travel of the driver, which was from Calgary to Regina.”  Although the  officer testified that Calgary was a known source of narcotics and Regina was a known destination of sale, no evidence was offered to support that opinion.  The BC Court of Appeal overturned the trial court, ruling that the officer’s observations were enough to support a “reasonable suspicion” that Mr. MacKenzie was trafficking drugs. Similarly, in the Chehil case, the “reasonable suspicion” was based on the observations that Mr. Chehil was travelling alone, that he had bought a one-way ticket from Vancouver to Halifax at the airline counter using cash, and that he had checked a relatively new, locked suitcase.  Again, the trial judge found there was not enough objective evidence to support a reasonable suspicion, and the Nova Scotia Court of Appeal overturned the ruling.

The majority of the Supreme Court held that, in both cases, the searches were justified based on the officers’ observations, training and experience.  CCLA is concerned that the vague, broad nature of the ‘evidence’ upholding the searches in these cases will open the door to police conducting searches and detentions of vast numbers of innocent individuals.  The Association particularly agrees with the strong dissent in MacKenzie, that the ‘evidence’ identified by the police officer should not have been sufficient to support a privacy-intrusive search.  Although we will need to wait for future cases to determine how the standard is being interpreted and applied by lower courts, CCLA is concerned that the majority’s application of principles to the facts will open the door for the police to engage in speculative searches and detentions based on generalized suspicion and after-the-fact justifications.

To read the Court’s decision in Chehil click here.

To read the Court’s decision in MacKenzie click here.

To read the CCLA’s factum in the appeal click here.

The Ashley Smith Inquest Resumes

By on September 10, 2013
In October 2007, Ashley Smith died tragically at the age of 19 inside her prison cell after tying a ligature around her neck, while prison guards – instructed not to intervene before she stopped breathing – watched. A public inquest into her death began in January 2013. Inquests are always held when an inmate dies in custody. Inquests serve to determine the facts surrounding a person’s death and, where possible, to prevent similar deaths from occurring.

Ms. Smith’s experience in the Canadian corrections system raises key civil liberties issues. CCLA is participating as a party in the inquest to address these issues, and to ensure that there is a full public accounting of the circumstances surrounding her death and that meaningful recommendations are made for improvement in the Canadian corrections system.

The Ashley Smith Inquest Resumes

After a two month summer recess, the inquest into the death of Ashley Smith resumes this week in Toronto.  Ms. Smith died tragically at the age of 19 inside her cell at Grand Valley Institution for Women in Kitchener, after spending many months in segregation (solitary confinement). Prior to her death, she spent time in a number of federal and provincial correctional facilities and struggled with mental health issues while incarcerated.  The young woman died after tying a ligature around her neck while guards, instructed not to intervene before she stopped breathing, watched.

Since January 2013, details surrounding Ms. Smith’s experience in federal custody have been publicly revealed at the inquest. Ms. Smith was transferred 17 times over her eleven and a half months in federal custody, spending time in correctional and psychiatric facilities run by or on contract with the Correctional Service of Canada. Throughout her custody in both the youth and adult correctional systems, she remained largely on segregation status (solitary confinement) with little or no opportunity for meaningful human contact. Jurors have heard evidence that Ms. Smith’s behaviour demonstrated many of the harmful effects documented in studies on prolonged solitary confinement.

Prior the summer recess, the five person jury heard from front line officers and middle managers involved in her management, and nursing staff, psychologists and psychiatrists involved in her care.  In addition to the former warden and deputy warden in charge of Grand Valley Institution at the time Ms. Smith died, a number of senior managers from the regional and national headquarters are set to testify this fall. It is hoped that their testimony will provide key answers as to who was managing Ashley’s case, who was responsible for her well-being, what was the origin of the instruction not to enter her cell until she stopped breathing.

Ms. Smith’s experience in the corrections system raises a number of serious civil liberties issues, including questions regarding the use of solitary confinement in modern penal systems, and the role that meaningful and transparent oversight mechanisms should play to protect the fundamental rights and freedoms of inmates – including their right to life and security of the person.  The Canadian Civil Liberties Association (CCLA) is participating in the inquest as a party to address these and other key civil liberties concerns and to ensure that there is a full public accounting of the circumstances surrounding Ms. Smith’s death and that meaningful recommendations for change in the Canadian corrections system are made.

CCLA is represented at the Inquest by Allison Thornton of Koch Thornton LLP and Amy Slotek, Legal Counsel.

The inquest is open to the public and proceedings of the inquest are being broadcast live via webcam and are available at the following link.

Read more about our past work on this issue:

June 2013

May 2013

March 2013

January 2013

Previous work on the Ashley Smith case, and the use of solitary confinement

For media inquiries, please contact:

Allison Thornton, special counsel for CCLA at the Inquest, a partner at Koch Thornton LLP

email:    allison.thornton@ktbarristers.com

phone: 416-216-0225

(In the alternative, please contact Noa Mendelsohn Aviv, Director of CCLA’s Equality Program, at mendelsohnaviv@ccla.org or 647-780-9802)