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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. |
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Liberty/due process
By Abby Deshman on May 15, 2012
On Tuesday May 15 the CCLA will appear before the Ontario Court of Appeal in J.N. v. Durham Regional Police Service, a case that will examine the procedural protections and constitutional rights owed to individuals with non-conviction records that are retained and disclosed by local police forces. Read the CCLA’s factum. Police run hundreds of thousands – perhaps millions – of record checks every year. Most of these checks are used to inform employment and volunteer hiring decisions. They are also frequently performed in connection with adoptions, foster care applications and travel. Contrary to popular belief, however, the information that is revealed in these background checks is not limited to criminal convictions. A wide range of “non-conviction” records can be disclosed, including information about criminal charges that were withdrawn, cases an individual was found not guilty, or even complaints where charges were never laid. Even non-criminal interactions, such as experiences with police due to mental health needs, are recorded in police databases and may show up on background checks. Across Canada individuals who have never been found guilty of any offence are prejudiced by these non-conviction records. Disclosing this type of sensitive information may undermine the presumption of innocence. Employers who receive ‘negative’ records checks may not fully understand the distinctions between different types of police information, creating a significant risk that non-conviction records will be misconstrued as a clear indication of criminal conduct. In the case of mental health records, this information may lead to illegal discrimination against those with mental disabilities. In the case before the Ontario Court of Appeal, J.N. is challenging the Durham Regional Police Service’s refusal to remove a withdrawn charge from her background check. J.N. is a woman in her 50s who, in 2006, was involved with in a family dispute involving her ill, 91-year-old father. A complaint was made and eventually J.N. was charged with assault. The charge was withdrawn before trial. A few years later J.N. applied for a media relations position in a school board. In order to be hired she was required to provide a Vulnerable Sector Background Check from her local police station. Although she had never been found guilty of any crime, the police report came back showing the 2006 assault charge. J.N. requested the charge be removed, but her request was denied without explanation. The lower court found that J.N.’s procedural rights had been violated. The Durham Regional Police Service has appealed that ruling. To read the lower court’s decision click here. To read CCLA’s factum before the Court of Appeal click here.
By Abby Deshman on May 9, 2012
CCLA appeared before the Ontario Court of Appeal in R. v. Mernagh to argue that the government must ensure that ill patients who would benefit from the use of marijuana for medical purposes have practical access to the drug. The government’s current regulatory regime, set out under the Marihuana Medical Access Regulations, allows ill Canadian suffering from grave and debilitating illnesses access to a legal source of dried marihuana for medical purposes. The Regulations require a declaration from medical practitioners supporting a patient’s request to use medical marijuana, where doctors must declare that all conventional treatments for the patient’s symptoms have been ineffective or medically inappropriate. In the 2011 decision in R v Mernagh, Justice Taliano ruled that the government program established in 2000 2001 to regulate the medical use of marijuana was ineffective and struck down the Regulations as unconstitutional. The judge found that medical practitioners were boycotting the program en masse, therefore making extremely difficult, if not impossible, for seriously ill patients to access marijuana for medical purposes. Medical practitioners have expressed concern that they have been made the gatekeepers to access medical marijuana considering the relative lack of research and education around the medical benefits of the controversial drug. There are currently no legal alternatives to access medical marijuana outside of the government’s regulatory scheme. The Federal government appealed Justice Taliano’s decision. CCLA intervened to argue that effectively denying ill individuals access to medicine, whether through criminalization or through a program that makes it practically difficult or impossible to access medical marijuana, violates of s. 7 of the Charter. Jean-Marc Leclerc of Sotos LLP, together with Christi Hunter of Heller Rubel LLP, who represented CCLA before the Court of Appeal, emphasized that this case is about providing assistance to people who are seriously ill: “it is about seriously sick individuals who want access to medication that could benefit them significantly.” Individuals suffering under the current regulations include persons with cancer and osteoarthritis – patients who are oftenlooking for an alternative to addictive opiates to relieve their suffering, but are currently facing often insurmountable obstacles under the current regime. To read CCLA’s factum click here.
By Communications on April 24, 2012
The John Howard Society of Canada In collaboration with the Canadian Association of Elizabeth Fry Societies, the Canadian Bar Association, the Canadian Civil Liberties Association, the Centre for Global Challenges, the Criminal Lawyers’ Association, and the National Associations Active in Criminal Justice Presents A one-day Symposium on Prison Crowding and its Implications for Human RightsObjective: To focus attention on the existence of prison crowding in Canada and to explore its legal implications, along with potential remedies. When: Saturday, August 25, 2012 Where: University of Ottawa Campus What: the Symposium will feature panel discussions of experts and practitioners on 1) the evolution of protections and international standards; 2) current conditions in Canadian correctional institutions; 3) current Canadian legal standards; 4) remedies for overcrowding; and 5) representing the inmate as client. Price: $200.00 ($175.00 if registered before June 15, 2012) For further details contact: Howard Bebbington, (613) 728-2018, hhbebbington@rogers.com; or Graham Stewart, (613) 389-1737, gstewart8@cogeco.ca. To register for the Symposium, please download, complete and return this form. If you have questions about registration, please contact: Mary Lou Howarth, (613) 384-6272, mhowarth@johnhoward.ca.
By Noa Mendelsohn Aviv on April 10, 2012
At Thursday’s meeting of the Toronto Police Services Board, CCLA’s Equality Program Director Noa Mendelsohn Aviv addressed the Board over the documented practice of racial profiling by the police. CCLA’s submissions expressed concern not just with “carding” – the recording of names and identities of black male youth – but also with unwarranted stops by police of these individuals. Stating that such stops are unacceptable and unconstitutional, CCLA called on the police to deal with this matter urgently and proactively. CCLA supported the recommendation of the Police Services Board Chair to commence an independent investigation into this practice, while also insisting that the police remain responsible to deal with this matter without delay, and must prohibit unwarranted stops and questioning, demanding and recording of identities, intimidation and searches. CCLA was encouraged by further motions put forward by Board Vice Chair Michael Thompson, which included a requirement that the police Chief report regularly to the Board on this matter, including with respect to steps taken to address issues that arise, and a requirement that individuals who are stopped must receive a copy of information recorded about them, which should include reasons for the stop. Though cautiously encouraged by the Board’s proposed motions to address this practice, CCLA will wait to see how motions passed will be implemented. CCLA also remains concerned that the practice of unwarranted stops has not yet been prohibited. We will continue to monitor and advocate around these and related issues. For CCLA’s Statement and Recommendations to the Board, click here. Minutes of the Toronto Police Services Board meeting (setting out the motions passed) are not yet available, but will be posted here once they become available.
By Abby Deshman on March 22, 2012
On March 22nd, the Supreme Court released their decision in R. v. Ladue (read the decision here), a case about sentencing Aboriginal offenders (read CCLA’s factum here). Over a decade ago, the Supreme Court recognized that racism against Aboriginal people within Canada had “translated into systemic discrimination in the criminal justice system,” with the result that Aboriginal Canadians were “drastic[ally] overrepresent[ed] … within both the Canadian prison population and the criminal justice system.” Parliament had also recognized this “crisis in the Canadian criminal justice system” and responded by enacting a specific sentencing provision in the Criminal Code which placed a particular emphasis on the circumstances of aboriginal offenders and alternatives to incarceration. In Ladue the Supreme Court strongly affirmed that when judges sentence Aboriginal offenders they must take into account “(1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.” The Supreme Court specifically addressed the concern that this would create a race-based discount on sentencing, stating that the courts’ duty was not to artificially reduce incarceration rates, but rather to come to a truly fit and proper sentence for each individual that appeared before them. In the case of Aboriginal offenders, a just sentence cannot ignore the history of colonialism, systemic discrimination, and its impact on this community and individual offenders. Similar considerations should also be taken into account with non-Aboriginal offenders, when they apply. As the Manitoba Court of Appeal has said in R. v. Vermette, “to achieve true equality sometimes different people must be treated differently.”
By Dora Chan on March 15, 2012
TORONTO March 15, 2012 - In response to Bill C-31 – an act that would penalize refugees, undermine Canada’s refugee claim process, and could lead to the deportation of permanent residents – several prominent human rights organizations have come together to call for the withdrawal of this bill.
The newly formed Justice for Refugees and Immigrants Coalition is comprised of Amnesty International, the Canadian Association of Refugee Lawyers, the Canadian Civil Liberties Association, and the Canadian Council for Refugees. Calling C-31 “unconstitutional” and “un-Canadian”, the Coalition views this Bill as creating a fundamental change to Canada’s refugee system. These groups felt the need to take strong action in light of provisions that would arbitrarily detain groups of refugees; keep parents, children and spouses apart for years; undermine the fairness of the refugee claim and protection process; introduce the use of biometrics; and authorize the stripping of permanent residence from refugees. In addition, the Coalition objects to the Bill as bad policy, that “gives Ministers broad, unfettered and unprecedented powers. The concentration of enormous and vaguely defined powers in a Minister, with no mechanisms of judicial accountability, displays a dangerous inclination away from the rule of law and principles of responsible and democratic governance.” The coalition will hold a press conference and an event on March 26. For the Coalition’s statement of principles, click here.
Amnesty International
Elizabeth Berton-Hunter
Cell: 416.904.7158
The Canadian Association of Refugee Lawyers The Canadian Civil Liberties Association The Canadian Council for Refugees ###
By Abby Deshman on March 13, 2012
Between 2006 and 2009 about one third of Ontario Crown offices asked police to conduct background checks on potential jurors by searching confidential police databases. Often the information they obtained was used to inform the prosecution’s jury selections and was not disclosed to defence counsel. In a 2009 report the Ontario Information and Privacy Commissioner found that the actions of Crown counsel and police had violated thousands of individuals’ privacy rights, and policy changes were subsequently put in place to ensure that all background checks were strictly limited to whether or not an individual was competent, under the law, to serve on a jury. On March 14th and 15th, 2012 the Supreme Court of Canada will hear arguments stemming from five criminal cases where jury vetting took place prior to trial. The CCLA will appear before the Court to argue that, when determining whether there has been a breach of the Charter, the Court should consider not only the fair trial rights of the accused, but also the impact of government conduct on the privacy rights of thousands of Canadians. State actions contravened government policy, privacy laws, jury list distribution rules, and disclosure obligations. In the CCLA’s view, the repeated violation of thousands of potential jurors’ privacy rights and the use of confidential personal information to inform prosecutorial jury selections constituted an abuse of process and a violation of the Charter. To read CCLA’s factum before the Supreme Court click here.
By Abby Deshman on February 22, 2012
The Canadian Civil Liberties Association applauds the government’s repeal of the Public Works Protection Act (PWPA), the Second World War-era law used to drastically curtail individuals’ civil liberties during the Toronto G20 Summit, and welcomes the limited scope of the intended replacement legislation. The CCLA was involved in consultations with the Ministry of Community Safety and Correctional Services during the development of the legislation introduced to the provincial parliament and strongly feels that the introduction of this legislation is a step in the right direction. We will be studying the specific powers conferred in the Act in greater detail to ensure that they are not overly broad and open to abuse. The CCLA also calls on the provincial government to formally apologize for its role in the surreptitious use of the PWPA to violate constitutionally-protected rights during the G20 Summit. The secretive passage of regulations under the PWPA undermined the principle of the rule of law and ensured that individuals would not know that extraordinary powers had been granted to the police until arrests had already started to take place. The provincial government owes an apology to the general public, both for the fundamental rights violations that took place under this law, and for the breach of public trust that occurred leading up to and during the G20. A copy of A Breach of the Peace, the CCLA’s post-G20 report that addresses the Public Works Protection Act can be downloaded here.
By Abby Deshman on February 16, 2012
CCLA’s general counsel Nathalie Des Rosiers testifies before the Senate Committee considering Bill C10, the omnibus crime bill. Listen to the hearings live on Thursday February 16, 2012, from 10:30 am – 1:30 pm EST. Links to archived video will be posted as soon as it is available. Find out more background on the Bill and our concerns here and read CCLA’s submissions here. Background On September 20, Justice Minister Rob Nicholson tabled Bill C-10, an omnibus bill titled the Safe Streets and Communities Act. Combining amendments from nine separate bills that had failed to pass in previous sessions of parliament, Bill C-10 would make fundamental changes to almost every component of Canada’s criminal justice system. It proposes:
What are the problems with Bill C-10?In the CCLA’s view, the Bill proposes a few welcome changes, including requiring the Parole Board of Canada to provide annual statistics relating to record suspensions (which replace pardons for some offences) and empowering victims of terrorism to seek redress for loss and damage resulting from a terrorist act. Overall, however, the direction these changes set out for the Canadian criminal justice system – jail more often, for longer, with more lasting consequences – is a dangerous route that is unsupported by the social science evidence and has already failed in other countries. Indeed, the research suggests that putting an individual in jail for longer will actually increase the likelihood of re-offending. It’s hard to see how this Bill will make streets and communities safer. What it will do is needlessly increase the number of people in prison, skyrocketing costs and imposing unjust, unwise and unconstitutional punishments. This is exactly the kind of policy Canada doesn’t need.
By Cara Zwibel on December 8, 2011
The Supreme Court of Canada will consider an appeal which looks at the issue of whether a sexual assault complainant may testify in Court while wearing a niqab for religious reasons. The case, on appeal from the Ontario Court of Appeal, arose when one of the defendants in a sexual assault case claimed that his right to full answer and defence was infringed by the complainant, N.S., testifying while wearing her niqab (at the preliminary hearing). He argued that in order to effectively cross-examine the complainant, it is essential to be able to observe her demeanour. CCLA intervened in the Court of Appeal and was also granted leave to make written submissions at the Supreme Court of Canada. CCLA has argued that religious freedoms must be respected and that allowing a woman to testify while wearing her niqab promotes trial fairness. CCLA has also pointed out ongoing concerns about the use and value of demeanour as an indicator of credibility. The Supreme Court will hear arguments in the case on December 8, 2011. Read a copy of the CCLA’s Supreme Court of Canada factum here. |
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