Fighting Quebec’s Religious Symbol’s Ban – As it Unfolds

CCLA is currently challenging the discriminatory religious symbols ban, Bill 21 in Quebec alongside the National Council of Canadian Muslims. We will keep this page up to date with events in the fight to stop this unjust law as it unfolds.

CCLA at the Supreme Court: The Worst Carding Case…

Noa Mendelsohn Aviv
Director of Equality Program
mendelsohnaviv@ccla.org

 

 

 

 

On Friday May 31st, the Supreme Court of Canada is going to release its decision in a case involving 4 young black men and one young Asian man carded in a private backyard!

“Carding” and “street checks” are just some of the terms used to describe the practice by certain police officers and police services of approaching, stopping and questioning people on the street (usually racialized young men) for no lawful purpose, asking them personal information, demanding to see ID, and then entering all this information into a police “street check” database.

In the case of R v Le which is being decided on May 31st, the police went even further when they walked, uninvited, into a private backyard and began to ask questions of 5 young racialized men who were in the yard and doing nothing wrong according to the police officers’ own testimony.

The officers tried to claim at trial that they felt justified because they saw no gate on the yard (the Ontario Court of Appeal fortunately did not accept this justification).  Or, as we suspect, the problem is systemic or actual racism, in a criminal justice system that allows police to approach and question young men as a matter of routine, where there are inadequate rules prohibiting police from treating innocent people as suspects and violating their rights. Perhaps it simply never occurred to the police not to, even as they entered private property.

Either way, the Canadian Civil Liberties Association went to the Supreme Court of Canada to condemn the officers’ conduct in the case. CCLA has been advocating for years against carding, and demanding clear rules that prevent police from approaching, stopping and questioning individuals who are not suspected of being connected with a crime.

CCLA intervened in the R v Le case to address the importance of privacy, the reasonable expectation of privacy in a friend’s backyard, and the right of all people to privacy, including those who are low-income and racialized. CCLA also intervened to ask the court to establish in clear terms which police stops must be recognized as arbitrary detention. CCLA explained that even a brief encounter with police can be intimidating, humiliating and frightening – as most people who have been pulled over can confirm. This is only exacerbated when the violation includes trespass onto personal property – sending a strong message that the officers may not be concerned about the law or individual rights. And a police encounter like this is particularly concerning when the individuals doing nothing wrong are racialized – and the stop smacks of discrimination.

CCLA was represented by pro bono counsel Danielle Glatt (Paliare Roland) and Kate Robertson (Markson Law).

On Friday May 31st, the Court has an opportunity to create better privacy protections, and better protections against carding.

CCLA awaits the decision and is available for comment any time after its release:  media@ccla.org.

 

You can read our factum here and our earlier summary of the case can be read here.

CCLA at the Supreme Court: Journalistic Source Protection

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

Refusing to burn a confidential source is a hallmark of journalistic integrity.  But does Canadian law protect journalism confidentiality? That’s what we went to the Supreme Court of Canada to argue today.

CCLA is before the Supreme Court of Canada today intervening in a case that addresses the importance of protecting journalists’ confidential sources. In Denis v Cote, the Supreme Court will have its first opportunity to interpret the Journalistic Sources Protection Act (JSPA), legislation that made significant changes to the rules of evidence in recognition of the vital role that confidential sources play in the media’s news gathering function.

The case arises out of a criminal trial in Quebec. Mr. Cote, the accused, alleged that certain documents and information arising out of a police investigation were deliberately leaked by agents of the state to a reporter, Ms. Denis. He argued that this constituted an abuse of process and that the criminal charges against him should be stayed. In support of his motion, he sought to compel Ms. Denis to testify and provide her source’s identity. While his motion was initially denied, a subsequent decision required Ms. Denis to identify her source, and the matter is now before the SCC.

CCLA has been involved in many cases that dealt with the role of the media and the importance of confidential sources. We intervened in the case to assist the Court in developing the principles that should apply when motions for disclosure of sources are brought under the new statutory scheme established by the JSPA. Our goal is to ensure that the law is interpreted in a way that furthers freedom of the press – something that cannot be done unless journalists have adequate protection for confidential sources. CCLA is arguing that the presumption against disclosure of a confidential source can only be overcome where there is no other reasonable means of getting the relevant information, and where the public interest in disclosure clearly outweighs the public interest in non-disclosure. Essentially, disclosure of a confidential source must be both necessary and proportional in light of the interests at stake. We are also encouraging the Court to recognize that when disclosure is ordered, conditions should be attached to such an order to ensure that it minimally impairs Charter protected rights.

We are grateful to Prof. Jamie Cameron of Osgoode Hall Law School and Chris Bredt, Pierre Gemson and Veronica Sjolin of BLG who are representing CCLA on the case pro bono.

Read CCLA’s factum here

Access to abortion, dying with dignity, and more upheld…

Noa Mendelsohn Aviv
Director of Equality Program
mendelsohnaviv@ccla.org

 

 

 

 

Doctors in Ontario will not be required to personally perform abortions, medical assistance in dying, or other healthcare services if the denial is based on the doctors’ religious beliefs – but they must provide an effective referral. This decision by the Ontario Court of Appeal today represents an important victory for the rights of patients who need reproductive healthcare, the right to die with dignity, and other stigmatized medical services.

The effective referral requirement states that doctors who deny a patient a service must, in good faith, ensure their patient is directed to a “non-objecting, available and accessible physician.” But it gets even easier than this. The doctors do not have to provide the referral themselves. All they must do is appoint someone in their office who can do so, and all that person has to do is find an agency (and one now exists in Ontario) that can find the healthcare service for the patient.

This “effective referral” requirement is part of two Policies of Ontario’s College of Physicians and Surgeons. And it was this requirement that was upheld by the Ontario Court of Appeal today. CCLA had intervened in the case arguing for the Charter rights of patients, and it welcomes this decision.

CCLA had argued that while both parties’ Charter rights were implicated, the Policies struck the correct balance in ensuring that important, Charter-protected medical services were accessible to patients.

Certain religious doctors had objected to the effective referral requirement, claiming that in their religious view, providing an effective referral would make them an accessory to and complicit in acts that violate their religious beliefs.

The College of Physicians and Surgeons together with several interveners including CCLA had argued that the Policies struck a reasonable balance between the religious freedom of doctors, and the rights of patients to access medical services. The Court agreed, noting the vulnerability of many patients, the very sensitive nature of certain medical services – such as abortion, birth control, transition-related services for transgender patients such as gender reassignment surgery, and medical assistance in dying – and the historical stigmatization associated with these. All of this may make it particularly difficult for vulnerable groups such as pregnant women and girls, patients with financial, social, educational, geographic and other challenges to access these services.

As such, without an effective referral requirement, patients may not be able to access these healthcare services at all. This, CCLA had argued, would constitute a serious violation of their fundamental right to human dignity, personal autonomy and privacy.

Today’s decision recognizes the important role doctors play in the lives of their patients, in particular those who are vulnerable. The normal rule, when doctors face difficult ethical questions, requires doctors to place their patient’s interests first. The Policies, however, do not force doctors to personally provide the healthcare that their patients need. This is already a significant compromise of patients’ interests. In the result, the Court found, requiring a compromise of doctors who deny these services, by asking them to provide an effective referral (which they can do through a third party and an agency), strikes a reasonable balance between the interests of doctors and patients.

CCLA at the Supreme Court: When the Immigration Act…

Noa Mendelsohn Aviv
Director of Equality Program
mendelsohnaviv@ccla.org

 

 

 

 

The right to habeas corpus is a centuries-old remedy intended to protect individuals from “wrongful restraints upon their liberty.” The Supreme Court of Canada today extended this remedy to individuals held in immigration detention. CCLA was an intervenor in the case of Canada v Chhina. We argued that liberty protections afforded to people detained by the state should be available to non-citizens. The scheme of detention review under the Immigration and Refugee Protection Act is inadequate compared to the remedy available under habeas corpus.

Mr Chhina had spent many months in immigration detention, some of which in the Calgary remand centre. There, they keep inmates on lockdown 22 and a half hours each day.The first court to receive Mr Chhina’s habeas corpus application declined to hear it. They found that Mr Chhina had access to a complete and adequate detention review process under the Immigration Act. Thus, he was not entitled a habeas corpus remedy. The Supreme Court of Canada found otherwise. They found that the Immigration Act detention review process is “unable to effectively address the challenge raised by Mr Chhina’s application in a manner that is as broad and advantageous as habeas corpus.” In particular, the Immigration Act places an onus on detainees to argue that the detention is unlawful. The regulations do not guide how to consider the length and duration of the detention. Meanwhile, habeas corpus requires the government to justify the legality of the detention.

The Court also referred to an external audit commissioned by the chair of the Immigration and Refugee Board which “offers a timely, and frankly unfortunate, picture of how the [detention review] scheme is being administered for those in long-term detention,” and how it is failing to protect individual rights. The 2018 audit shows how new reviews tend to rely on old decisions rather than looking afresh at the legality of the detention. The immigration review body, rather than conducting an independent review, “often overly relies on the Canada Border Services Agency’s submissions.”

The Court also found that the immigration review scheme does not adequately provide for consideration of a detainee’s Charter rights in the full context of their circumstances. Moreover, the habeas corpus scheme is a swift and immediate remedy. This is in contrast to the lengthy process that can occur under the Immigration Act.

As such, the Court concluded, “Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited.”