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.
Cara Zwibel on February 13, 2015
The Supreme Court of Canada today struck down unconstitutional provisions in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (“Act”), in its decision in Canada (Attorney General) v. Federation of Law Societies of Canada.
In summary, the Act and its Regulations required lawyers to record and retain records on clients for transactions above three thousand dollars ($3000) separate from bail and legal fees. These records were to be accessible to the Government (including FINTRAC) for potential use in laying charges and future prosecutions, and included wide-sweeping search and seizure powers of law offices. Lawyers who did not comply with these provisions were subject to imprisonment and penalties.
CCLA intervened in this case to argue that these provisions of the Act and Regulations were unconstitutional because they wrongly impinged upon solicitor-client privilege, and because they wrongly impinged upon a lawyer’s liberty interests.
CCLA argued that the provisions would have a chilling effect upon solicitor-client privilege, and that solicitor-client privilege is a key component of the principle of access to justice, and the principles of fundamental justice, protected in section 7 of the Canadian Charter of Rights and Freedoms (“Charter”). CCLA argued that the provisions made lawyers into unwilling agents of the State. CCLA also argued that the potential sanctions against lawyers unconstitutionally impinged upon their independence and liberty interests safeguarded by section 7 of the Charter.
The Court unanimously struck down the provisions as they applied to lawyers – while upholding the provisions for other professions such as accounting. The Court found that solicitor-client privilege must “ remain as close to absolute as possible”, and that solicitor client privilege is part of the principles of fundamental justice. Lawyers have a duty “of commitment to the cause of their clients”.
The Court further ruled that “the scheme taken as a whole limits the liberty of lawyers in a manner that is not in accordance with the principle of fundamental justice relating to the lawyer’s duty of committed representation.” A minority of the Court disagreed that solicitor-client privilege is protected by principles of fundamental justice.
The Court unanimously found the provisions of the Act which enabled wide-sweeping warrantless searches of law offices to be unjustifiable breaches of the right to be free against unreasonable search and seizure in section 8 of the Charter, striking down those provisions.
CCLA was represented by Mahmud Jamal, David Rankin, and Pierre- Alexandre Henri.
Noa Mendelsohn Aviv on February 12, 2015
The Supreme Court of Canada will be holding a two day hearing this Monday and Tuesday to consider laws that could penalize individuals for having assisted refugees enter Canada. The act of providing such assistance to people in danger is being termed, under a very broad interpretation of the law, “human smuggling” or “people smuggling.” However most of the individuals whose cases are before the Court are themselves claiming refugee status, or were assisting refugees, or both; most of them are not accused of any crime, and are not believed to have made a profit, or to have engaged in late-night border-running. These individuals are being penalized as “smugglers” for having assisted themselves as refugees and/or other refugees travelling with them to safety.
CCLA has intervened in the case to argue that if “smuggling” is interpreted so broadly that it encompasses any person who assists another to enter Canada, this could capture a refugee mother who brings her child with her, a refugee husband and wife who assist each other, or a humanitarian worker saving someone’s life. CCLA has argued that such laws would be unconstitutional and inconsistent with Canada’s international obligations to protect refugees.
CCLA is represented by Andrew Nathanson and Gavin Cameron (Fasken Martineau)
To read CCLA’s factum, click here.
Cara Zwibel on February 6, 2015
The Canadian Civil Liberties Association (CCLA) welcomes today’s decision from the Supreme Court of Canada striking down the assisted suicide provisions of the Criminal Code. The CCLA intervened in the case to argue that an absolute prohibition on assisted suicide restricts personal autonomy in a way that unreasonably limits the rights to life, liberty and security of the person. Control of bodily integrity is a crucial aspect of the rights to life, liberty and security of the person; the current Criminal Code provisions violate these rights. Prohibiting any and all forms of assistance in dying overrides the thoughtful and informed choices of terminally ill, suffering individuals and denies them the chance to preserve dignity and control over the final days of their lives.
“Today’s decision marks an important first step for Canada in granting individuals autonomy over their end of life choices,” said Sukanya Pillay, General Counsel & Executive Director of the CCLA. “Governments and civil society will have to work together to ensure regulations effectively protect true end of life choices and vulnerable persons.”
The Supreme Court found that the prohibition on physician-assisted dying deprives competent adults of help in circumstances where they clearly consent to death and where they have a grievous and irremediable medical condition that causes intolerable and enduring suffering. This amounts to a violation of the constitutionally protected right to life, liberty and security of the person, and is not reasonable or justified. The Court noted that a number of jurisdictions now permit some form of physician-assisted death and that the evidence supports the view that safeguards can be put in place to protect vulnerable individuals.
The decision marks a fundamental shift for Canada and CCLA welcomes the opportunity to engage with Canadians about how the law should deal with physician-assisted death in a way that upholds autonomy while protecting individuals from abuse.
CCLA is grateful to Chris Bredt, Margot Finley and Ewa Krajewska of Borden Ladner Gervais LLP for their excellent representation in this case.
Noa Mendelsohn Aviv on January 27, 2015
“Solitary confinement deprives the prisoner of vital human contact. This practice has devastating effects on the prisoner’s mental and physical wellbeing, and constitutes the harshest form of punishment that may be administered in Canadian penitentiaries. As such, the ready, routine and prolonged use of solitary confinement in Canadian penitentiaries is unjustified, unethical, and ultimately, unconstitutional.”
The CCLA is deeply concerned about the practice of solitary confinement in Canadian prisons, and has long worked to uphold the rights of prisoners. CCLA has advocated with respect to these concerns, and noted the disproportionate representation of vulnerable groups in segregation including individuals with mental health issues and Aboriginal Peoples. CCLA has also conveyed in various fora its concerns regarding failing safeguards and an absence of adequate oversight with respect to segregation, and recently, the wholly inadequate response of the Correctional Service of Canada to the Ashley Smith Inquest recommendations.
Background – the Impact of Solitary Confinement:
Solitary confinement – also known as segregation – can cause severe mental and physical pain or suffering. In the case of prolonged segregation of over 15 days, some of its harmful psychological effects can become irreversible. These findings, based on psychological studies, have been affirmed by international human rights bodies. Indeed, according to a report by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatement (August 2011), when segregation is used “as a punishment, during pre-trial detention, indefinitely, prolonged, on juveniles or persons with mental disabilities, it can amount to cruel, inhuman or degrading treatment or punishment and even torture.”
In addition, given the closed nature of prisons generally, and the isolation of solitary confinement, any abuses, misuse of authority, or mistreatment – such as that experienced by Ashley Smith – may go undetected and unchallenged.
There is also a troubling connection between segregation and suicide in federal penitentiaries, and a disproportionately high rate of suicide among prisoners in segregation. According to a recent report by the Office of Correctional Investigator (September 2014):
“A major finding of this review, one that is repeatedly supported by the literature, is that suicide rates are more prevalent in physically isolated cells (segregation, observation and mental health cells) than in general population cells. The literature is also clear that physical isolation and separation increases the risk of suicidal behaviour. Placement of a mentally disordered inmate in segregation or in an observation or special suicide-resistant cells has both perceived and actual punitive aspects… As this Office has long advocated, long-term segregation of mentally disordered inmates or those at risk of suicide or serious self-injury should be prohibited. Such a prohibition would be more consistent with existing policy on managing suicide risk than the status quo.”
In November 2009, CCLA announced that it was joining with the Criminal Lawyers’ Association to call for an immediate government response to the alarming increase in the use of solitary confinement in Canada’s federal penitentiaries.
On March 15 2010, CCLA – jointly with the Criminal Lawyers Association, the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, the B.C. Civil Liberties Association, and the Schizophrenia Societies of both Ontario and Canada – sent a letter to the Minister of Public Safety concerning the use of segregation and the special needs of prisoners with mental health issues.
Inquest into the Death of Ashley Smith – In March 2011, CCLA sought status as a public interest party in the Inquest into the Death of Ashley Smith. CCLA was represented on a pro bono basis by Allison Thornton (Koch Thornton LLP), assisted by Amy Slotek (CCLA). CCLA was a party to the Inquest and remained actively involved in it, through its various phases, until its conclusion in December 2013. During this time, CCLA questioned witnesses, called Prof. Andrew Coyle as an expert witness (from the U.K.), worked with the other parties to draft, where possible, joint recommendations for the jury, made oral submissions, endorsed and opposed the final submissions submitted by Coroner’s Counsel, and submitted its own Additional Recommendations to the inquest jury.
In May 2012, CCLA addressed the issue of solitary confinement in its report to the UN Committee Against Torture, making a number of submissions, and referring specifically to the Ashley Smith inquest which was at that time ongoing.
CCLA’s Sukanya Pillay published an op-ed in honour of Prisoner’s Justice Day 2012. The op-ed addressed, among other things, the overuse of segregation of people with mental health issues.
In December 2013, nearly a year following the conclusion of the Inquest into the death of Ashley Smith, Correctional Service Canada released its response to the Inquest recommendations. CCLA was deeply disappointed by this response, as failing to adequately address the practice of administrative segregation, place firm time limits on its use, or provide for meaningful oversight and accountability mechanisms.
FOR IMMEDIATE RELEASE
January 27, 2015- The Canadian Civil Liberties Association (CCLA) and the Canadian Association of Elizabeth Fry Societies (CAEFS) are challenging the inhumane practice of placing individuals in solitary confinement in Canadian prisons. This morning CCLA and CAEFS filed a petition in the Ontario Superior Court to challenge the constitutionality of legislative provisions which allow for solitary confinement.
“In 2011, the United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment declared solitary confinement contrary to the successful rehabilitation and reintegration needs of prisoners,” asserted Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies and the Sallows Chair in Human Rights at the University of Saskatchewan College of Law. “Recently, Canada’s own Correctional Investigator reported that 14 of 30 prisoner suicides in the past three years occurred in segregation, which elevates suicide risk. Most prisoners who died in segregation had a documented history of mental health issues.”
“The link between torture, cruel treatment and solitary confinement is too important for Canadians to remain silent,” said Sukanya Pillay, General Counsel and Executive Director of CCLA. “We cannot equivocate about measures that result in torture. We must protect the prison population’s most vulnerable members, which includes people with mental health issues.”
The CCLA and CAEFS have long worked to uphold the rights of prisoners particularly with respect to the concerning segregation, and the disproportionate representation of vulnerable groups in segregation including individuals with mental health issues and Aboriginal Peoples. Failing safeguards and an absence of adequate oversight over uses of segregation, and the wholly inadequate response of the Correctional Service of Canada to the Ashley Smith inquest recommendations prompted CAEFS and CCLA to take action.
“The practice of solitary confinement in Canada is fatally flawed,” remarked Jonathan Lisus of Lax O’Sullivan Scott Lisus LLP, Counsel in the petition to Superior Court. “Our clients are bringing these challenges to end practices that have violated the constitutional guarantee against cruel and unusual treatment or punishment”.
“Canadian prisons subject inmates to solitary confinement without any limit on duration, without any guarantee of independent review, and without any consideration of the frailties of the inmate” said Michael Rosenberg of McCarthy Tétrault LLP, Counsel in the petition to the Superior Court. “The ready, routine and prolonged use of solitary confinement in Canadian penitentiaries is unjustified, unethical, and ultimately, unconstitutional”.
The CCLA and CAEFS have also urged Canada to ratify the Optional Protocol to the UN Convention Against Torture, which would allow independent visits of detention centres.
CCLA and CAEFS acknowledge the work of their colleagues in British Columbia who last week launched a suit also challenging provisions enabling solitary confinement. “It is incumbent on all members of civil society to speak out against torture,” said Pillay, “we support their efforts and our joint suits reinforce the importance of these issues central to CCLA’s mandate.” Kim Pate, a Canadian expert who has worked to end solitary confinement for decades, argues that, “The preventable deaths of such prisoners as Ashley Smith, Kinew James, and Edward Snowshoe, have galvanized opposition to the use of segregation, especially for Indigenous prisoners and those with mental health issues. Eliminating or severely curtailing the use of isolation is a laudable objective. But the Correctional Service of Canada, by defining certain units as “special needs”, “mental health observation”, or “intensive psychiatric care”, often avoids the current review requirements stipulated by the Act. The resulting, often punitive, disciplinary responses exacerbate pre-existing mental health issues. Not only do we need accountability, but we need to recognize that in Canada, entire prisons for youth, men and women, have been managed for months and sometimes years, without segregation units.”
CCLA—an independent, non-partisan, non-profit, non-governmental organization—works to protect the rights and freedoms of all Canadians. Its mission is to promote respect for and observance of fundamental human rights and civil liberties, and to defend, extend, and foster recognition of these rights and liberties.
CAEFS –is a federation of twenty-five autonomous societies which work with, and on behalf of, marginalized, victimized, criminalized and institutionalized women and girls.
The CCLA and CAEFS are represented on their petition to the Superior Court by Lax O’Sullivan Scott Lisus LLP and McCarthy Tétrault LLP.
Canadian Civil Liberties Association
(416) 363-0321 ext. 230
Cara Zwibel on September 24, 2014
Join the Canadian Civil Liberties Association and the Criminalization and Punishment Education Project in Ottawa for a discussion of pre-trial imprisonment in Canada. Due to a serious crisis with our bail and criminal justice system, Canada is imprisoning an increasing number of people who are simply waiting for their day in court. Pre-trial detention rates have tripled over the past 30 years, fueling major problems with crowding, violence and inhuman conditions in our provincial jails.
How did we end up here? How can we work towards a safe and just future in our community and others like it across Ontario and Canada?
WHERE: University of Ottawa Faculty of Law, Fateux Hall, Room 135
WHEN: Wednesday, October 1st, 2014, 6:30 pm – 8:00 pm
Abby Deshman – Director, Public Safety Program, CCLA and co-author of recent CCLA report, “Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention”
Jacqueline Tasca – Policy Analyst, John Howard Society of Ontario and author of JHSO report “Reasonable Bail?”
Marie-Eve Sylvestre – Vice-Dean of Research and Communications, Civil Law, uOttawa
Catherine Latimer – Executive Director, John Howard Society of Canada
Alex Scantlebury – CEO of EBM Pro Writing and former OCDC prisoner
Cara Zwibel on September 24, 2014
The Canadian Civil Liberties Association and the John Howard Society of Ontario are teaming up to deliver educational workshops on police record checks across the province of Ontario!
Police records present numerous barriers for individuals who have had past police contact or justice involvement and who are attempting to find employment, housing and even treatment. Traditionally in Ontario non-conviction and police contact records have been routinely disclosed on police record checks – including information from non-criminal calls to 9-1-1, apprehensions under the Mental Health Act, suspect or person of interest designations, and charges that resulted in withdrawal, acquittal or other non-conviction dispositions.
The On the Record series aims to provide helpful information, tailored to two audiences:
1) those who help or work with people who may be impacted by police records (i.e. direct social service providers, legal/court professionals, government etc.) and,
2) Those who use police record checks in hiring or volunteer screening – HR professionals, Volunteer Organizations/Coordinators and Employers.
The workshop, delivered by Abby Deshman of the Canadian Civil Liberties Association and Jacqueline Tasca of the John Howard Society of Ontario, will provide:
Employers and HR professionals will also receive information regarding:
This series is funded through a grant from the Law Foundation of Ontario. To find out more about CCLA’s work on record checks, visit www.ccla.org/recordchecks.
UPCOMING SCHEDULED SESSIONS
Contact the person identified under each session to register, or if you would like to host your own On the Record session, please contact Jacqueline Tasca at firstname.lastname@example.org
YORK REGION / SIMCOE
LONDON & AREA
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.