|
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. |
Liberty/due process
By Communications on May 21, 2013
An Update on The Ashley Smith Inquest The inquest into the death of Ashley Smith continued this past week with testimony from health care employees who were employed at Joliette Institution in Quebec during her two short periods of incarceration there, a number of whom injected Ms. Smith with anti-psychotic medication without her consent. Video evidence which shows Ms. Smith being injected five times during a seven hour period on July 22, 2007 while restrained to a gurney as she is surrounded by guards in riot gear was also introduced. Since the beginning of the inquest into the young woman’s death in custody, the five person jury have heard testimony from front line correctional officers and health care professionals regarding Ms. Smith’s treatment throughout her eleven and a half months in federal corrections. 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. Extensive evidence was introduced regarding two alleged assaults perpetrated against Ms. Smith by correctional staff during her time at the Regional Psychiatric Centre (RPC) in Saskatoon, Saskatchewan. A number of staff members, including Ms. Smith’s treating psychiatrist and the lead investigator into the incidents, noted their concerns that Ms. Smith would be subject to retaliation in response to the allegations. Shortly after the incident she was transferred out of RPC. 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. 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. The inquest will continue until June 27th and will break in July and August for a summer recess period. Please stay tuned for further updates regarding the inquest on our website. CCLA is represented at the Inquest by Allison Thornton of Koch Thornton LLP. 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. Click here to read more about our past work on this issue 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)
By Abby Deshman on April 19, 2013
The CCLA is before the Supreme Court today, arguing that police officers involved in an investigation by the Special Investigations Unit (SIU) into the use of force resulting in death or serious injury to a civilian are not entitled to the assistance of legal counsel in the preparation of their duty notes of the incident. Duty notes are notes that are prepared in the normal course of an officer’s day on the job. When there has been a police-involved death or serious injury, witness officers must hand their notes in to the SIU, which is the independent body that conducts criminal investigations into such occurrences. It is essential to the integrity of the investigation and public confidence in the process that officers’ notes be contemporaneous and independent, thereby ensuring that they are accurate and unedited accounts of what occurred. Allowing lawyers to review, edit, or advise police officers on the content of their notes would significantly undermine the independent oversight regime. To read the CCLA’s factum before the Supreme Court click here. To read the Court of Appeal’s decision click here. To read the CCLA’s factum before the Court of Appeal click here.
By Noa Mendelsohn Aviv on March 18, 2013
CCLA welcomes the decision released today by the Supreme Court of Canada in R. v. Pham, affirming the central role that the principle of individualized sentencing should play: that the personal circumstances of an offender are relevant in determining their sentence. The central question on appeal was whether a judge should exercise his or her discretion to take collateral immigration consequences into account in the sentencing process, namely the loss of a right to appeal a deportation order. Under the Immigration and Refugee Protection Act, a permanent resident sentenced to a term of imprisonment of two years or more loses the right to appeal a removal order issued against him or her. Mr. Pham, a Vietnamese citizen and permanent resident of Canada, was charged and convicted with unlawfully producing marijuana and possessing it for the purposes of trafficking. At his sentencing hearing, he was sentenced to two years’ imprisonment triggering a loss of appeal rights against a removal order issued against him. Neither the Crown nor Mr. Pham’s counsel had raised this issue before the sentencing judge. On appeal, however, the Crown conceded that it would have agreed to a sentence of two years less one day. Despite this, the majority of the Alberta Court of Appeal denied Mr. Pham’s appeal to have his sentence reduced by one day. The Supreme Court reversed this decision, allowing the appeal and reducing Mr. Pham’s sentence from two years to two years less a day. The Court noted that collateral immigration consequences may be just as relevant in sentencing as the collateral consequences of other legislation or of circumstances specific to the offender. CCLA appeared before the Court to argue that the collateral immigration consequences of a sentence should be considered at sentencing and that the criminal law should be flexible enough to allow the judiciary to fashion appropriate and individualized responses to criminal conduct on a case-by-case basis. CCLA also argued that the failure to consider the collateral immigration consequences of a sentence for a non-citizen could be a violation of the right to equality under the Charter. The Supreme Court affirmed, similarly, that “if the personal circumstances of the offender are different, different sentences will be justified.” CCLA thanks Matthew S. Estabrooks and D. Lynne Watt of Gowlings Ottawa for their excellent work in this case. For the Supreme Court’s decision, click here. For CCLA’s factum in the case, click here.
By Communications on March 13, 2013
The inquest into the death of Ashley Smith continued last week with testimony from a psychologist who worked with Ms. Smith at the Nova Institute for Women in Truro, Nova Scotia, during her two periods of incarceration there. Since the beginning of the inquest into the young woman’s death in custody, the five person jury have heard testimony from a number of correctional officers who worked directly with Ms. Smith and who were present the day she died. The jury has also heard testimony from Coralee Smith, Ms. Smith’s mother, who spoke of the anguish of losing her daughter and of the many financial, bureaucratic and logistical barriers she faced in attempting to maintain contact with her daughter during her incarceration. Ms. Smith was transferred 17 times over her eleven and a half months in federal custody and spent the majority of her custody in the youth and adult correctional systems in solitary confinement. Jurors have also heard evidence that Ms. Smith’s behaviour demonstrated many of the harmful effects documented in studies on prolonged solitary confinement. Ms. Smith’s experience in the corrections system raise 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. 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 has experience in advocating for adequate oversight of government and authorities, and accountability mechanisms, to protect the fundamental rights and freedoms of all people, including the right to life. The inquest will resume on March 25th. Please stay tuned for further updates regarding the inquest on our website. CCLA is represented at the Inquest by Allison Thornton of Koch Thornton LLP. 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. Click here to read more about our past work on this issue 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)
By Abby Deshman on February 19, 2013
This week the Ontario Court of Appeal is set to hear a series of cases that challenge the constitutionality of mandatory minimum sentences. CCLA has objected to mandatory minimum sentences for years, in large part because they take 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 disproportionate amounts of jail time on individuals whose actions, while illegal, should not result in years of imprisonment. This week we will appear before the Court of Appeal to again argue that mandatory minimums violate constitutional rights. The facts of one of the cases the Court of Appeal will be considering serves as an example of the danger posed by mandatory minimums. Leroy Smickle had done what the lower court called “a very foolish act.” He was at his cousin’s apartment for the night, and because he had work the next morning, he had decided to stay in while his cousin went to a club. He was doing what some people do when they are at home alone – posing for facebook self-portraits using the camera on his laptop. At some point, he decided that he would pose for a facebook photo while holding a handgun. At just that moment the police burst in to search his cousin’s apartment for illegal firearms. Although his cousin had been the target of the search, Mr. Smickle had been caught holding a loaded handgun without the appropriate permits. He dropped the laptop and the handgun immediately, as ordered by the police, and was charged with possession of a loaded firearm contrary to s. 95(1) of the Criminal Code – an offence that carries a mandatory minimum of three years in jail. The judge found that sending Mr. Smickle, who had no prior criminal record, to jail for three years for posing for a facebook photo, was disproportionate and hence a cruel and unusual punishment, contrary to the Charter. Mr. Smickle’s act is not the only “foolish” act that could lead to a mandatory three year sentence. Under s. 95, a person can be convicted without
For these individuals it would not matter that their intentions were good, that they 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. The CCLA will be intervening in the Smickle case and its companion, Nur, to argue that the mandatory minimum sentence imposed on this offence is unconstitutional because, in cases like those listed above, three years behind bars is so disproportionate that it amounts to cruel and unusual punishment. 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.
By Abby Deshman on February 19, 2013
Millions of Canadians travel abroad. Each year, some are charged and convicted of crimes in foreign countries. These individuals are often detained for long periods of time in foreign prisons, far from their families. Many will be surrounded by a foreign bureaucracy, culture and language, and may be subject to conditions that fall far below what Canadians would view as acceptable. Over thirty years ago we realized that there was little to be gained by forcing people to serve their prison sentences abroad. Both for the rehabilitation of offenders, the interest of their family and public safety in general, a sentence in a prison of the country of citizenship is often preferable. Language barriers, isolation, difficulties in contacting families and friends, and, in some countries, prison conditions may make the sentence particularly harsh or undermine any possibility of rehabilitation and reintegration. For Canadian families, the difficulty and costs of maintaining contact with a loved one may be significant. And since citizens have a right to return to their country of citizenship after their sentence is completed, there is an interest in ensuring that they have access to rehabilitation programs while in prison. It is for these reasons that most countries have entered into multi-state conventions of bilateral arrangements to provide for such transfers. It is indeed viewed as enhancing public security and not diminishing it to ensure proper rehabilitation to offenders who are more than likely to come back in the country. In Canada, the International Transfer of Offenders Act was put into place to facilitate precisely this return and rehabilitation. Once an offender and the foreign detaining country have given their approval, a person can ask the Canadian government to approve the transfer to a Canadian institution. In recent years, however, the federal Minister vetting these applications has drastically decreased the approval rates – from 100% approval of all recommended transfers between 1999 and 2005, to just 27% approved in 2009-2010. And in numerous court cases, time after time, judges have reprimanded the Canadian government for improper decision-making and failing to articulate why they are refusing to allow people to complete their sentences in Canada. Now the question has come to the Supreme Court of Canada: if a Canadian wants to transfer to a prison in Canada, and the foreign government agrees to the transfer, when can the Canadian government refuse to take a citizen back? And if they do, does it engage a citizen’s constitutionally-protected right to enter Canada? On February 18, 2013 CCLA appeared before the Supreme Court of Canada to argue that the government’s decisions in these cases does engage Canadians’ mobility rights, which are constitutionally protected under s. 6 of the Charter. And although there may be a few exceptional situations where transferring a person to a Canadian prison would actually increase immediate safety risks, in the vast majority of cases public safety will be served by allowing a Canadian citizen to be near their family, to access programs, and be subject to appropriate Canadian supervision. To read CCLA’s factum click here.
By Abby Deshman on February 4, 2013
The Ontario Court of Appeal has released its decision in R. v. Mernagh, a challenge to the constitutionality of the Medical Marijuana Access Regulations. The Regulations are supposed to allow ill Canadian suffering from serious, debilitating illnesses to access to a legal source of dried marihuana for medical purposes. Individuals’ experiences from across the country, however, strongly suggest that patients are having significant difficulty accessing the drug, largely because it can be very difficult to find doctors that are willing to sign the medical marijuana form required by the Regulations. In the lower court’s 2011 decision, Justice Taliano ruled that the government program established in 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. The Court of Appeal overturned the decision, largely because it found there were problems in the lower court’s factual findings and evidentiary record. The CCLA is concerned that the evidentiary burden the Court of Appeal has placed on defendants in similar situations – namely to find and pay a doctor to assess their individual circumstance and testify to their MMAR eligibility – will be too onerous for many individuals who are criminally charged after using marijuana to alleviate debilitating symptoms. CCLA is also disappointed that the Court did not use this opportunity to change one of the most significant barriers to legally accessing medical marijuana – the requirement that doctors confirm that conventional treatments have been tried or considered, and found to be ineffective or medically inappropriate. This essentially requires patients to make marijuana a medication of last resort, and it can be a particularly difficult standard for individuals that have not been able to find or keep a primary physician. As was evidenced by Mr. Mernagh, new physicians may suggest retrying all ‘conventional’ treatments, including pharmaceuticals with debilitating side effects, before considering a patient’s request for marijuana. We do not believe that such a rigid regime is necessary to fulfill the government’s objectives, and will continue to watch for opportunities to ensure that ill individuals can effectively access their preferred treatment without risk of arrest or incarceration. To read CCLA’s factum in this case click here. To read the Court of Appeal’s decision click here.
By Communications on January 21, 2013
The coroner’s inquest into the death of Ashley Smith resumed in Toronto on Monday January 14th, 2013. An earlier inquest was discontinued after the retirement of the first coroner. Ashley 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). At the age of 13, Ms. Smith became involved with the youth criminal justice system. Prior to her death, she spent time in a number of federal and provincial correctional facilities and struggled with mental health issues while in jail. The young woman died after tying a ligature around her neck while guards, instructed not to intervene before she stopped breathing, watched. Public inquests are held when an inmate dies in custody and serve two important functions: to determine the facts surrounding an inmate’s death and, where possible, to prevent similar deaths from occurring in the future. The Canadian Civil Liberties Association (CCLA) is participating in the inquest as a party in order to ensure that there is a full public accounting of the circumstances surrounding Ms. Smith’s death. CCLA also has experience in ensuring that adequate oversight of government and authorities, and accountability mechanisms are in place to protect the fundamental rights and freedoms of all people, including the right to life. Meaningful and transparent oversight is essential to ensure that prisons operate within the law. Please stay tuned for further updates regarding the inquest on our website. CCLA is represented at the Inquest by Allison Thornton of Koch Thornton LLP. The proceedings of the inquest are being broadcast live via webcam and are available at the following link: http://www.mcscs.jus.gov.on.ca/english/DeathInvestigations/office_coroner/PublicInquest/OCC_inquest_stream.html Click here to read more about our past work on this issue. 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)
By Noa Mendelsohn Aviv on January 17, 2013
Today the Supreme Court of Canada overturned the decision of the Quebec Court of Appeal in R. v. Manning. The Supreme Court held that on the specific facts of that case, the Court of Appeal gave too much weight to the offender’s personal circumstances, and insufficient weight to his criminal record, which included several breaches of probation orders or undertakings in addition to five convictions for alcohol-related driving offences. The CCLA intervened in the appeal before the Supreme Court to oppose the position taken by the Crown that the courts cannot consider the effect of a requested forfeiture order on the offender and his or her family, or the likelihood that the property in issue will be used for lawful purposes. The Crown had argued that the court can only consider three factors: the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence. The CCLA argued that a proper reading of the Criminal Code requires an assessment of the personal circumstances of the offender and affected others. Such a reading is, in the CCLA’s view, consistent with both the language of the provision and the Canadian Charter of Rights of Freedoms. Although the Supreme Court ultimately granted a forfeiture order, it appears to have accepted the CCLA’s argument on the proper interpretation of the law, as the Supreme Court held that the Quebec Court of Appeal erred by overemphasizing the offender’s personal circumstances and failing to give appropriate weight to his record, rather than holding that it was an error to have considered the offender’s personal circumstances at all. The CCLA continues to be of the view that consideration of the personal circumstances of the offender and his or her family is required by both the language of the Criminal Code relating to forfeiture orders and the Canadian Charter of Rights of Freedoms. The CCLA intends to continue to follow this issue as the law develops. A more detailed summary of the decision and a discussion of the implications for the rights of Canadians will follow. For media inquiries, please contact the CCLA’s counsel on the appeal, Catherine Beagan Flood or Joshua Krane of Blake, Cassels & Graydon LLP at cbe@blakes.com (416-863-2269) or joshua.krane@blakes.com (416-863-4187). To read the Supreme Court of Canada decision: click here To read CCLA’s factum: click here
By Noa Mendelsohn Aviv on January 17, 2013
CCLA intervened in the Supreme Court of Canada in the case of R. v. Manning, which looks at which factors a court may consider when ordering the forfeiture of an offender’s property. Originally created to permit the forfeiture of tools of crime by organized crime rings, the provision has since expanded to allow for forfeitures in many other circumstances. In this case, Mr. Manning was convicted of impaired driving. He had similar prior convictions. He was given a 17 month jail sentence, and banned from driving for 5 years. However the Quebec trial court and Court of Appeal did not agree to forfeiture of his vehicle, given that Mr. Manning was unemployed, living on social assistance, and that he and his spouse relied on the vehicle to get food, clothing, and to get to the hospital. CCLA does not have a principled objection to the forfeiture of property in appropriate circumstances. We intervened in this case to make the argument that if courts are considering forfeiture, they must consider the totality of the offender’s circumstances, and consider others who will be impacted, such as the family, dependants, and affected others, as well as whether the property is used primarily for non-criminal purposes. This is consistent with fundamental principles of criminal and constitutional law. CCLA argued that: “Forfeiture of goods that are used predominantly for lawful purposes, particularly where this forfeiture effectively punishes innocent family members for the offender’s crime, would risk undermining Canadians’ sense of fairness and trust in the criminal justice system.” CCLA was represented by Catherine Beagan Flood and Joshua A. Krane (Blake, Cassels & Graydon LLP). To read CCLA’s factum, click here. |
   |
||
|
Copyright © 2013 Canadian Civil Liberties Association - All Rights Reserved |
|||