The Good, the Bad and the Ugly of the…

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

 

 

 

 

 

It was a bad day for equality but a good day for teachers, when Ontario’s Divisional Court dismissed the application brought by CCLA and Becky McFarlane challenging the government’s decision to repeal the 2015 sex education curriculum and replace it with content from 1998. We intend to continue the fight and will be seeking to appeal the decision.

The good news is that the Court provided clear and unequivocal confirmation that teachers can teach about topics contained in the 2015 curriculum that are absent from the interim version that is currently in place. The missing content relates primarily to issues around consent, sexual orientation, family status and gender identity. Despite the government’s tough talk when the interim curriculum was first released – and their decision to institute a snitch line and encourage parents to report on teachers where they had “concerns” – the position of the government in Court was much different. As the judgment makes clear, the Minister’s lawyer confirmed that “as long as a teacher meets the learning objectives set out for that grade in the 2010 Curriculum, a teacher may address topics that go beyond those expressly set out in the 2010 Curriculum to meet the needs of a given class or student. Those topics include the topics in the 2015 Curriculum that are not found in the 2010 Curriculum.”

This was a significant concession for the government to make, and it certainly upset some of those who were so opposed to the 2015 content and supportive of the government’s decision to send the province’s kids back to the 1990s. Indeed, the President of the Elementary Teachers’ Federation of Ontario (ETFO) said that the concession made the case “a victory for ETFO and others”. ETFO had also challenged the government’s decision, albeit on grounds different from the CCLA.

The bad news? For students and parents, today’s decision is so disappointing.  It means that a transgender student may sit in a classroom and hear nothing of themselves reflected in the lesson. It means that a student with a queer mom, like Becky’s daughter, may hear nothing about queer families. What teachers may do is different from what they must do, and that is the importance of a provincial curriculum document. It sets the baseline, and CCLA’s argument has always been that, regardless of what happens in classrooms, the provincial government’s decision to remove content from the curriculum sends a message loud and clear. The message is one of exclusion and inequality. The ugliness of today’s decision is that it does nothing to disabuse Ontarians of that message. We will have to hope that the Court of Appeal will take up the call.

This Public Consultation on Sex Ed is Keeping a…

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

 

 

 

 

The Ontario government’s decision to scrap the 2015 sex ed curriculum and replace it with content from 1998 has been the subject of significant controversy, debate, and more than one legal challenge. In January, the CCLA and our co-applicant Becky MacFarlane were before the Ontario Divisional Court arguing that the decision to revert to the old curriculum violated the right to equality and was an arbitrary decision that should not be upheld. We are waiting for the Court’s decision, as are Ontario’s students, teachers and parents.

To us, the government’s reasons for reverting to the 1998 curriculum are clearly grounded in discriminatory attitudes towards the LGBTQ+ community, despite its statements about respecting parents and listening to “the people”. The government’s own purported reason for the change was that the 2015 curriculum was the product of an inadequate and flawed consultation process. As a result, the government engaged in what the Minister of Education has described as “the largest-ever consultation on education in Ontario’s history”.  Early reports about the consultation process demonstrated that there was a huge amount of support for the 2015 sex ed curriculum and little appetite for a reversion to the lessons of the 1990s. However, Premier has already attempted to cast doubt on the consultation process – the one his own government designed and implemented – by saying that “certain groups” flooded the process in its early days and may have skewed the results.

As an organization that is fiercely committed not only to equality but also to government accountability, we wanted to know how the government would take what they learned through the consultation and use it to develop the next curriculum. We had thought that a government that gloats about the extensiveness of its consultation process would want to show off the results. Surely, a government “for the people” would be responsive to the people. At a minimum, the people would be allowed to know what the people said. Turns out we were wrong.

Shortly after the consultation process closed in December of 2018, I made an access to information request to the Ministry of Education, asking for the results or data that the government gathered through the consultation process, particularly for the sex ed issue. The government designed the consultation process in a way that makes requests for access complicated. People wishing to share their views with the government could respond to a targeted survey, but could also send an email, submit a form with lots of spaces for open text, and participate in a telephone town hall. The consultation had no obvious way to control for multiple submissions from the same individual or even to assure that those participating were people residing in Ontario. Apparently, the government received over 70,000 submissions in one form or another – so there would be a lot of information to go through.

I worked with accommodating staff on the Ministry’s Information and Privacy team and pared my request down to weekly summaries of the consultations that Ministry staff had created. This would make the request easier and cheaper to process since it would not involve staff going through tens of thousands of pages of submissions or redacting personal information.

Now, however, the Ministry has denied my request on the basis that the summaries are “Cabinet records” under section 12 of Ontario’s Freedom of Information and Protection of Privacy Act.  Since the summaries are purportedly going to Cabinet for discussions about future policy directions, the Ministry argues that they cannot be turned over under access to information laws. The logical conclusion from this position is that if consultations with “the people” will inform discussions in Cabinet (as they should), the people can’t know what the people said.

Why does this matter? A consultation process doesn’t mean that the public gets to decide on policy, but if it is a meaningful one it should allow the public to understand what the government heard and how it arrived at its ultimate decision. Without robust access to information, politicians can spin the results. The Premier’s statement that “certain groups” skewed the process is one example. More recently, the Minister of Education has said that the consultation process showed a concern that the sex ed curriculum did not do an adequate job of teaching about consent. Of course, the 2015 curriculum contained a great deal more content on consent than the 1998 curriculum, but it appears even the 2015 curriculum was considered inadequate by many participants. This is useful information – and apparently, we can look forward to “further updates” on the findings from the consultation by the Minister. But we can only see what the government chooses to tell us, not a summary of what all participants had to say. We are not allowed to see the whole picture, probably because it may show us something that the government prefers we don’t see. We will be left to wonder what the government isn’t telling us, and which people this government is really for. If the point of the consultation was to increase public confidence, shielding the consultation results from public scrutiny directly and fatally undermines this goal.

We’ll be appealing the Ministry’s decision to shield the consultation summaries from disclosure, and will keep you posted on our progress.

PRESS RELEASE – APPEAL TO BILL 21 DECISION

UPDATE: Tuesday July 23, 2019

La version française suit.

– For Immediate Release –

CIVIL LIBERTIES GROUPS SEEK LEAVE TO APPEAL BILL 21 DECISION

NCCM & CCLA file an application for leave to appeal Justice Yergeau’s decision

(Montreal – June 23, 2019)

The National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA) have filed an application for leave (attached) to appeal the Honourable Justice Yergeau’s decision in Hak c. Procureure générale du Québec, 2019 QCCS 2989. P

The NCCM & CCLA submit that leave should be granted because, in their estimation, the decision contains a number of important errors of law.

The new application asks the Quebec Court of Appeal to take another look at the decision that denied a request to suspend operation of the Act respecting the laicity of the State (Bill 21).

The “Laicity” Act bans people who wear religious symbols from holding a variety of public sector jobs, including as teachers, police officers and prosecutors. The law will most seriously curtail the freedoms of Muslim women who wear the hijab, Jews who wear the kippa, and Sikhs who wear turbans.

The NCCM and CCLA filed a constitutional challenge of the Act hours after it was enacted, and with it, asked the court for an urgent interim measure – to suspend the Act’s operation.

“We promised Quebecers and Canadians that we would stand up for their rights and we intend to do exactly that,” says NCCM Executive Director Mustafa Farooq, “We believe, as we always have, that this piece of legislation has no place being on the books in 2019. This is a historic moment as Quebecers of all faiths and backgrounds come together to oppose an unjust law, and stand with us in filing our application for leave.”

“It is not acceptable to hang signs telling certain people they are not welcome in stores, beaches, parks, or workplaces. A law that excludes people because of who they are and how they dress is both absurd and abhorrent – it has no place in a society that values justice, equality and freedom. This is why we fight,” says Noa Mendelsohn Aviv, Equality Program Director at the Canadian Civil Liberties Association.

The appellants are represented by Catherine McKenzie and Olga Redko of the distinguished litigation firm IMK LLP of Montreal.

The NCCM is an independent, non-partisan and non-profit organization that is a leading voice for civic engagement and the promotion of human rights.

The Canadian Civil Liberties Association (CCLA) is a national, non-partisan, non-profit organization that works to protect the rights and freedoms of all people in Canada.

CONTACTS:

English:

Mustafa Farooq, NCCM Executive Director, mfarooq@nccm.ca or 613-406-2525

Noa Mendelsohn Aviv, CCLA Equality Program Director, mendelsohnaviv@ccla.org, 647-780-9802

French:

Bochra Manai, NCCM Quebec Public Affairs Spokesperson, bmanai@nccm.ca or +1 (438) 932-7197

Sarah Abou-Bakr, NCCM Quebec Community Relations Coordinator, saboubakr@nccm.ca or 613-254-9704 Ext 236

– Pour diffusion immédiate –

GROUPES DE LIBERTÉS CIVILES DEMANDENT À LA COUR DE RÉVISER SA DÉCISION SUR LE PROJET DE LOI 21

Le CNMC et l’ACLC soumettent une demande d’autorisation d’en appeler de la décision du Juge Yergeau.

(Montréal – 23 juin 2019)

Le Conseil national des canadiens musulmans (CNMC) et l’Association canadienne des libertés civiles (ACLC) ont aujourd’hui soumis une demande d’autorisation d’en appeler de la décision de l’Honorable Juge Yergeau dans l’affaire Hak c Procureure générale du Québec, 2019 QCCS 2989 (ci-jointe).

Le CNMC et l’ACLC soumettent que l’autorisation d’en appeler devrait leur être octroyée puisque la décision initiale contient plusieurs erreurs importantes de droit.

La nouvelle demande vise à ce que la Cour d’appel du Québec révise la décision rejetant la demande de suspendre l’application la Loi sur la laïcité de l’État (projet de loi 21).

La Loi sur la « laïcité » empêche les individus qui portent un symbole religieux d’avoir certains postes dans le secteur public, incluant celui d’enseignant, de policier et de procureur. Cette loi va significativement restreindre les droits et libertés d’individus, notamment des femmes musulmanes qui portent le hijab, des juifs qui portent la kippa, et des sikhs qui portent un turban.

Le CNMC et l’ACLC ont contesté la validité de la nouvelle loi au lendemain de son adoption, au motif qu’elle est inconstitutionnelle. Les organisations ont simultanément invoqué une mesure provisoire d’urgence : la suspension de l’application de la loi.

« Nous avons promis aux Québécois et aux Canadiens que nous élèverions notre voix pour protéger leurs droits et libertés. C’est exactement ce que nous faisons. »  dit Mustafa Farooq, Directeur exécutif du CNMC. « Nous croyons, et nous avons toujours cru, que cette loi n’a pas sa place en 2019. C’est un moment historique que de voir les Québécois de toutes les confessions s’allier pour s’opposer à une loi injuste et nous appuyer dans notre demande d’autorisation pour en appeler de la décision. »

« Il n’est pas acceptable d’afficher des signes interdisant l’accès à certaines personnes à des boutiques, des plages, des parcs, ou des milieux professionnels. Une loi qui exclut des individus en raison de leur identité et de leur façon de s’habillant est à la fois absurde et aberrante; une loi du genre n’a pas de place dans une société qui promeut la justice, l’égalité et la liberté. C’est pour cela que nous nous battons. » dit Noa Mendelsohn Aviv, Directrice du Programme égalité de l’ACLC.

Les demandeurs sont représentés par Catherine McKenzie et Olga Redko de la firme distinguée IMK LLP de Montréal.

Le CNMC est une organisation nationale indépendante non-partisane à but non-lucratif qui est une voix éminente pour l’engagement civique et la promotion des droits de la personne.

L’Association canadienne des libertés civiles est une organisation nationale non-partisane à but non-lucratif qui travaille à protéger les droits et libertés de tous les individus au Canada.

CONTACTS:

Anglais:

Mustafa Farooq, Directeur exécutif du CNMC, mfarooq@nccm.ca ou 613-406-2525

Noa Mendelsohn Aviv, Directrice du Programme égalité de l’ACLC, mendelsohnaviv@ccla.org, 647-780-9802

 

Français:

Bochra Manai, CNMC Quebec, Porte-paroles de affaires publiques, bmanai@nccm.ca ou +1 (438) 932-7197

Sarah Abou-Bakr, CNMC Quebec, Coordinatrice des relations communautaires, saboubakr@nccm.ca ou 613-254-9704 Ext 236

End to Solitary Confinement as we know it

UPDATE: Thursday, March 28, 2019

In an extraordinary decision, the Ontario Court of Appeal has ordered an end to prolonged solitary confinement in Canada’s prisons – in 15 days. Prolonged solitary is the confinement of a person for over 15 consecutive days in extreme isolation. In effect, the Court has ordered an end to the practice of housing inmates in these horrendous conditions. The decision states that solitary is capable of producing serious permanent negative mental health effects including altered brain activity, depression and suicidal ideation, confusion and hallucinations, paranoia, self-mutilation, and declines in mental functioning. The Court concludes that holding people in solitary for over 15 days “outrages standards of decency and amounts to cruel and unusual treatment,” and is unconstitutional.

This decision will come into effect in 15 days. This is an unusual remedy. Most constitutional victories nonetheless grant the government many months to create alternative laws. Here, however, the Court has put an end to the practice of prolonged solitary almost immediately.

Read the court’s decision here.


Monday, Nov. 19, 2018

For immediate release — TORONTO —
The federal government has failed to meet its Ontario court-imposed deadline of tomorrow to fix its solitary confinement laws.  So it has to beg the Ontario Court of Appeal for an extension this week.

“The feds have really bungled it this time,” said Michael Bryant, Executive Director of the Canadian Civil Liberties Association. “Not only did they break their election campaign promise to end indefinite solitary confinement, but now they broke their promise to Ontario courts to fix a law by tomorrow that the Ontario Superior Court found to be unconstitutional a year ago. The court gave them a year to fix their broken laws, and they’ve failed.”

Rights groups who have won court challenges against indefinite solitary confinement were in courts last week in BC and this week in Ontario, fighting the Crown’s botched plans to fix the law of solitary confinement in Canada.  Tomorrow (11/20/18) at 10 a.m. the Canadian Civil Liberties Association (CCLA) will argue before the Ontario Court of Appeal that the federal government has run out of time, and CCLA will also appeal various findings of the Ontario Superior Court from 2017.

Courts in Ontario and British Columbia concluded that Canada’s existing law on solitary confinement violates s.7 of the Charter of Rights and Freedoms as it places prisoners at increased risk of self-harm and suicide and causes psychological and physical harm. The B.C. Court further held that that the laws are unconstitutional because they discriminate against the mentally ill and disabled, and against Indigenous prisoners. Each court suspended the effect of its judgment for a year to give Parliament time to comply.

But they didn’t. The feds “arrogantly bided their time, introducing a new bill a month before the deadline, knowing full well that Parliament couldn’t pass it in time. It’s maybe even too late to pass it before the next election,” said Bryant.

The federal Crown is asking the Court tomorrow to extend the one-year suspension of the 2017 order for a further seven months to permit Parliament to consider legislation “that has no prospect of addressing the Constitutional deficiency,” CCLA argues in its written brief to the Court, adding: “Canada makes this request without any evidence to explain either its delay in taking action or its failure to implement any interim measures to mitigate its continuing Charter breach.”

Last week, the BC Court of Appeal had the federal Crown squirming in its justification for failing to meet the deadline. Tomorrow, it’s their turn to face the Ontario Court of Appeal. Representing CCLA pro bono is Jonathan Lisus and Michael Rosenberg (details below).  

-30-

Links: Ontario Superior Court of Justice ruling; B.C. Supreme Court ruling

Read CCLA’s Factum here.

Contact:

Michael Bryant
Executive Director and General Counsel
CCLA: 416-230-8658

Counsel:  

McCarthy Tétrault LLP
Tel: 416-362-1812
Michael Rosenberg
mrosenberg@mccarthy.ca

Lax O’Sullivan Lisus Gottlieb LLP
Tel: 416-598-1744

Jonathan C. Lisus
jlisus@counsel-toronto.com

 

MATERIALS

June 13, 2019 CCLA’s Response to Canada’s Motion for an Interim Stay

June 7, 2019 ONCA Order Regarding Extension of Suspension Declaration

March 28, 2019 Ontario Court of Appeal ruling

April 6, 2018 CCLA’s Factum

December 18, 2017 Ontario Superior Court of Justice ruling

 

Previous Updates

April 29, 2019 Solitary Confinement is No Joking Matter – And the Courts Are Not Amused – Again! Here are Where Things Stand

January 17, 2018 Legal Fight Against Solitary Confinement Continues 

December 17, 2018 CCLA Wins Important Battle Against Feds on Solitary Confinement 

December 18, 2017 Court Strikes Down Solitary Confinement Regime in Response to CCLA’s Challenge

 

CCLA Win

Victory at the Supreme Court: A fight for everyone’s right to privacy and equality (R v Le)

Victory! Today, the Supreme Court rendered a monumental decision recognizing that police carding in a private backyard constitutes arbitrary detention, a violation of the Charter. The Court stated the police have no legal authority to question people who are doing nothing wrong, nor demand their IDs. Both the majority and dissent recognized that a person may experience a police interaction differently due to their race and existing relations between the police and various racial groups, as we argued. The majority also accepted a position advanced by us stating even a short interaction with the police can have a significant impact on an individual and can be considered a form of detention. As a result of these findings, the Court set aside Mr. Le’s convictions and entered his acquittal. A true victory for civil liberties.

Post Below from October 12, 2018

A quick summary

Tom Le and four of his friends were sitting in the backyard of a home when police walked in. 20-year old Le is Asian, and his four friends (one, a resident of the home) are all Black.

That night the officers had been looking for completely different people, and were told by a security guard for the housing complex that one of the men sometimes hung around the address where Mr. Le and his friends were that night.

The officers went to the house, saw no wrongdoing, walked through the gateway without permission, and asked the racialized young men there questions about themselves, including asking for identification.

One officer asked Mr. Le for his identification and what was in his bag. At that point Mr. Le fled, but was soon apprehended and searched, and found to have a weapon and drugs in the bag.

What CCLA is asking for

We are intervening in this case before the Supreme Court of Canada on Oct. 12 to ask the court to protect individual rights to privacy and equality when it comes to interactions with police.

CCLA argues that the legal test that helps courts decide who has a reasonable expectation of privacy in a space like a backyard (and who as a result has standing to make an argument in court that their Charter right to be free from unreasonable search was violated) focuses too much on who owns or controls the property. Everyone – whether they are a homeowner, renter, or guest; whether low or high income – should be entitled to an equal zone of privacy in which they are able to move freely and with relative anonymity without unnecessary intrusion by the state.

We are also offering the court a test to determine when a person has been detained by police – a test that should properly consider the power of police, and the fear and distrust experienced by racialized communities in their relationships with law enforcement. Our goal is to seek guidance for police officers so that all individuals can walk around freely, and all can have equally meaningful access to their privacy, liberty and equality rights.

What are the civil liberties concerns?

There are intersecting privacy and equality rights in this case.

Imagine walking down the street and being stopped and questioned by police. Would you feel a little nervous and like you should probably stay and answer questions? Imagine if the questioning were done in an accusatory manner. Would you feel under suspicion? And how comfortable would you feel if this was in your neighbourhood with friends and neighbours nearby? Many people in Canada, including those who have been pulled over while driving, can relate to the feeling of fear and intimidation when confronted by police officers.

If you are a part of a racialized community, this may happen far too frequently to you or to people you know. For members of heavily policed communities, police encounters carry the sting of discrimination and a sense of injustice, along with uncertainty as to the results: a risk of abuse of power, escalation, charges, or use of force. How would you feel facing police in this context, and what would you do?

It is important for all people to have the freedom to move about safely in their communities, and in particular in private spaces. Police probably wouldn’t just walk into a private backyard in an affluent white neighbourhood and start immediately questioning those present – and it shouldn’t have happened in a community housing complex to a group of racialized young men. Privacy rights must be extended equally.

Why this case matters

This case raises serious questions about the equal enjoyment of privacy rights for all people, the impact of race in police encounters, the right to be free from arbitrary detention, and the need for courts to consider the effects of inequality and systemic racism on Charter-protected interests.