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.
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.
Abby Deshman 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.
Abby Deshman 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.
Abby Deshman 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.
Noa Mendelsohn Aviv 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.