Canada to Join Critical Anti-Torture Protocol

CCLA welcomes Foreign Minister Dion’s announcement yesterday that Canada will begin the process of joining the Optional Protocol to the Convention Against Torture (OPCAT). Joining means Canada will allow independent inspections of detention centres. This is an important step in ensuring accountability because behind closed doors is where torture, cruel, inhuman and degrading treatment can occur. 

Joining the OPCAT is something CCLA has consistently advocated for in national and international fora. In 2012, we appeared before the UN Committee Against Torture in Geneva to urge Canada to live up to its legal commitments. In 2015, we advocated for Canada to sign the OPCAT before the UN Human UN Human Rights Committee. In both instances, CCLA’s concerns were well reflected in the concluding observations presented to the Government of Canada.

By ratifying the Optional Protocol, it not only demonstrates Canadian opposition to torture around the world, but also reflects a willingness to finally confront how we treat our own prisoners at home. In 2015, CCLA launched a constitutional challenge to the overuse of segregation in Canadian prisons in response to placing prisoners in solitary confinement, failing safeguards, an absence of adequate oversight, and the wholly inadequate response of the Correctional Service of Canada to the Ashley Smith inquest recommendations. We have also spoken out against the mistreatment of individuals held in detention by the Canada Border Services Agency

The government has promised to begin consultations with provincial and territorial stakeholders as the first step towards signing the Optional Protocol. CCLA will continue to monitor events and hold the government to this important commitment.  

 

Schmidt Case Shows Higher Rights Protection Standards Needed in…

CCLA is disappointed with today’s decision from the Federal Court of Canada in the case of Schmidt v. Attorney General of Canada. The ruling affirmed that the Minister of Justice only has to report to Parliament regarding inconsistencies between a proposed bill and the Charter of Rights and Freedoms when there is no credible argument in favour of the bill passing the Charter test. As we have argued, this standard is simply far too low, as no such report has ever been made to Parliament. 

However, we recognize that the Court was limited in the evidence before it. It was looking only at the laws that lay out the Minister’s obligation and, because of solicitor-client privilege, could not look at how the standard has been applied — even though we know that laws with very questionable constitutional status were introduced and passed in recent years. 

While the Court’s decision does not require the Minister of Justice to change the way she interprets her obligation to report Charter inconsistencies to Parliament, there are statements in the decision that recognize the difficulties with the existing standard. In particular, the Court states: “There is no doubt the reporting mechanism is weak, but I cannot read into it more than the legislation provides for.”

The Court’s decision highlights the need for reform if we want parliamentarians to be able to truly and meaningfully assess the constitutional implications of the laws they are passing, and if we want Parliament to be able to hold the government accountable for the laws it introduces. As the Court noted: “Legislative change is needed if we deem it necessary to reform the current system…If there is political will to alter the balance Canada has opted to strike, it is for the proper political and legislative processes to achieve.”  

This is why CCLA has launched the #CharterFirst campaign. As part of the campaign, CCLA is exploring options and consulting with experts to develop recommendations for the Minister of Justice. The goal is to ensure that Parliament, and Canadians, regularly receive information on the degree to which proposed bills comply with the Charter and that the government is held accountable on Charter issues. Hundreds of Canadians have already pledged their support to the campaign, and you can join us as well! 

The case was brought forward by Edgar Schmidt, a former Justice Department lawyer, who claims that serious concerns around Charter compliance were consistently ignored by his former superiors, including the Minister of Justice. CCLA intervened in the case to argue that the government has a responsibility to ensure that proposed laws comply with the Charter and that the Minister has an obligation to report serious concerns about constitutionality to Parliament and, in turn, to Canadians. 

>> Join CCLA’s Charter First campaign

>> Federal Court judgment in Schmidt v. Attorney General of Canada

>> Read CCLA’s factum submitted on this case

No more ‘Safe Harbour’: Does it matter in Canada?

Last week, the Court of Justice of the European Union (CJEU), Europe’s highest court, made a ruling that takes a strong, principled stand on data privacy rights, and may have repercussions for Canada. The ruling declared the Safe Harbour agreement that permitted data transfers between the EU and the US invalid.

The case in question was Schrems v. Data Protection Commissioner. It began when Max Schrems, an Austrian law student at the time the case began, and his advocacy group “Europe v Facebook,” filed a complaint against Facebook Ireland Ltd., Facebook’s European headquarters, with the Irish Data Protection Commissioner. They claimed that the Snowden revelations made it clear that Facebook Ireland Ltd. was violating European data protection laws by sharing data with its US parent company because it was known that the US National Security Agency (NSA) was actively surveilling social network data through its PRISM program. They also claimed that it is problematic that there is no way for Europeans to know when their data is captured, and no legal recourse if they do suspect such capture.

Facebook, and more than 4000 other companies, were relying on a negotiated agreement colloquially known as “Safe Harbour” to make data sharing between their European headquarters and their US base legal under European law. In the 1990s, the European Union passed a directive that made privacy law uniform across Europe, and established guidelines to protect data as it moved from country to country. The directive also required that any country wishing to receive European citizens’ data must provide equivalent protection to that it enjoyed within the EU. Canada passed the Personal Information Protection and Electronic Documents Act, or PIPEDA, which was determined to be adequate. The United States chose not to pass substantially similar legislation to meet this EU requirement, and instead negotiated the Safe Harbour agreement, which allowed American companies to ‘sign on’ to a set of privacy principles negotiated between the US and EU.

The Irish Data Protection Commissioner refused to investigate; Schrems appealed to the High Court of Ireland, who referred the question of whether it could legitimately rule on or question the European Commission’s Safe Harbour deal in a national court, to the CJEU.

With the recent ruling, the CJEU has confirmed that individual state authorities may examine complaints, although only the CJEU can decide whether a Commission decision is valid. They then went on to declare the Safe Harbour agreement invalid, for three main reasons:

  • The Safe Harbour protections applied only to the companies who certified that they were compliant, not the state who nonetheless had access to the data, leaving the data potentially available without appropriate protection, “compromising the essence of the fundamental right to respect for private life.”
  • European citizens have no recourse to challenge the use or interception of their data by the state, which “compromises the essence of the fundamental right to judicial protection.
  • The Safe Harbour decision denied the national supervisory authorities the ability to fulfil their responsibility to ensure that data sharing is compatible with privacy, and the fundamental rights and freedoms of individuals who bring complaints before them, which the Commission had no right to do.

Martin Scheinin, the former United Nations Special Rapporteur on human rights and counter-terrorism, has noted that the CJEU decision is highly significant because it has made a firm stand against mass surveillance. By stating that access by public authorities to confidential or group-specific communications data is a privacy intrusion, whether or not they process that data, the decision firmly contradicts the standard intelligence agency position that it’s not invasive if the data remains unprocessed. Scheinin calls it “a huge blow to many of the current methods of electronic mass surveillance.” (https://www.justsecurity.org/26781/adding-nuance-context-max-schrems-case-safe-harbor/)

So, how does Canada enter into this equation? The decision was clearly about the United States, and Canada is in a different position, having passed PIPEDA and not relying on the Safe Harbour decision. The problem is, as a member of the Five Eyes Alliance, it is quite likely that the Canadian government has similar access to data via intelligence surveillance that caused the court concern in relation to NSA interceptions. Furthermore, with the passage of Bill C-51, now the Anti-terrorism Act, 2015, which expands the potential for information sharing exponentially, it becomes more and more likely that we, too, would fail to meet the high, privacy protective, threshold for cross-Atlantic data sharing that has now been established by the CJEU.