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.

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.”

Solitary confinement is no joking matter – and the…

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

 

 

 

 

The Ontario Court of Appeal has once more handed down a scathing decision to the government on its use of solitary confinement, and its failure, again, to fix flaws as ordered 16 months ago. If you are concerned about the use of solitary confinement in Canadian prisons, agree with courts and inquiries that prolonged solitary is cruel and unusual treatment, and believe that solitary should not be an option for vulnerable people, you are not alone. Given the many decisions, almost-missed deadlines, and requests for extensions, we thought it may be helpful to provide a brief update on our challenge, and why the government should stop fighting.

The bottom line: Despite the fact that CCLA won its challenge in December 2017, the government has not reformed its solitary confinement regime, not fixed the constitutional flaws found by the courts, and not passed new legislation. What it has done is fought, appealed, appealed again, and on 5 separate occasions (and counting) asked the courts for time to fix or delay fixing the law. And all the while, people are spending extended periods in Canada’s prisons in horrendous conditions and extreme isolation. It is now well past time. The government must stop fighting in the courts, and start making the necessary reforms in our prisons.

As to where things stand, in December 2017, the Ontario Superior Court agreed with CCLA’s expert witnesses about the devastating harms of solitary. It concluded that the current regime known as administrative segregation was unconstitutional because it did not provide independent review of decisions to place or keep someone in solitary. The government did not appeal this decision and it is still good law. However, the government did say that they needed time to amend the law and asked for 12 months. Over CCLA’s objections, the Superior Court granted the government the full 12 months requested.

Ten months later, the government introduced Bill C-83 in October 2018. However, this bill did not fix any of the issues raised by CCLA, including the issue of independent review as ordered by the Superior Court. The government then asked the Ontario Court of Appeal for more time to pass this bill. The Court of Appeal expressed serious reservations about this delay and the fact that the bill did not resolve the issue of constitutionality as found by the lower court, but granted an extension until April 30th 2019. As this date approached, the government made yet another request for more time. The Court of Appeal granted this too, “with great reluctance,” until June 17th, all the while making it clear that this was the last time.

That’s where things stand with the decision emanating from the Superior Court.

In the meanwhile, CCLA, while happy with our victory in the lower court, was not fully satisfied with the outcome. The lower court had only ruled the lack of independent review to be unconstitutional. CCLA had also argued that there were other unconstitutional aspects to the solitary confinement regime, including prolonged solitary confinement (over 15 days), and the placement of vulnerable people (such as people with mental illness, and youth) in solitary. And so CCLA appealed our own win to the Ontario Court of Appeal – and won again.

In another tremendous victory, the Ontario Court of Appeal ruled that prolonged solitary confinement amounted to cruel and unusual treatment and is unconstitutional. The Court gave the government 15 days to fix the problem.

It may not come as a shock to learn that in seeking an appeal of this decision at the Supreme Court, the government also asked the Supreme Court for, you guessed it, more time. This time, the government asked to delay implementation of the Court of Appeal’s decision on prolonged solitary. The Supreme Court granted a delay but only until the next phase of the process, which it heard on an expedited basis. At that point, the Supreme Court will issue its decision on whether the government has to comply with the Court of Appeal’s decision to end prolonged solitary confinement straight away – or whether it can wait until the Supreme Court hears the entire appeal.

If this all sounds terribly complex and Sysphean, it is and it is not. It is true that the government is wasting taxpayer time and resources. It is true that the government has yet to implement an independent review process as ordered by the Superior Court or to end prolonged solitary as required by the Court of Appeal. But the government has in the meantime quietly found solutions for many of the people formerly housed in solitary. The numbers in these units have reportedly dropped 59% in the past 5 years. So what the government claims it cannot do and needs more time to do, it is nonetheless doing. All it takes, it seems, is patience, strength, and the determination to make things right.

Sign our petition demanding Canada stop fighting these necessary reforms