Open Letter from CCLA: Calling for a Reset on… March 5, 2019May 1, 2019 OPEN LETTER March 5, 2019 The Rt. Hon. Justin Trudeau Prime Minister of Canada House of Commons Ottawa, Ontario K1A 0A6 The Hon. Doug Ford Premier of Ontario Legislative Building Toronto, ON M7A 1A1 His Worship John Tory Mayor of Toronto 100 Queen St W, Toronto, ON M5H 2N2 RE: Waterfront Toronto Reset Dear Prime Minister, Premier and Mayor, We are writing to you about the Smart City initiative for the Toronto Eastern Waterfront, the Quayside Sidewalk Toronto project. The Canadian Civil Liberties Association (“CCLA”) believes that your decisions and activities, through Waterfront Toronto [1] and otherwise, are unconstitutional and contrary to statute, common law and administrative law. We respectfully submit that it’s time for a reset of this project. Hit CTRL-ALT-DELETE on Sidewalk Toronto: before bidding and procurement, you must first legislate protections for the people from the risks of surveillance capitalism on our streets. CCLA is an independent, non-partisan, national organization that’s been promoting and defending Canadians’ rights and freedoms since 1964. Small but mighty, we have sought to insert ourselves into every major civil liberties issue facing Canada for the past half century. CCLA, on this issue, through this letter, stands on the shoulders of countless citizens, activists, experts, and journalists in Canada and abroad, on the streets, through public forums, committee meetings, online and on campus. CCLA submits that Sidewalk Toronto and the Quayside project should be reset, with your ‘creation,’ [2] Waterfront Toronto, issuing no new Quayside RFP until all three levels of government, after adequate public consultation, have established digital data governance policies for the appropriate collection, ownership, use and residency of personal information and other data obtained from public places in any embedded sensor laden, data harvesting Smart City contemplated for Quayside. This was the path trodden by Smart City Barcelona, which changed course in 2011, rendering it a global leader for citizen-focused Smart Cities. Not for the first time, private enterprise got ahead of you and strove to exploit an unregulated frontier. Meanwhile, the legal vehicle you created to be the “public advocate and steward,” [3] Waterfront Toronto, put the cart before the horse. Powers were given away to a private enterprise that cannot legally be given away. Waterfront Toronto also exceeded its own powers under its governing statute. Waterfront Toronto was supposed to be a real estate revitalization company, not an unelected, unaccountable Data & Privacy Czar, lacking any such authority from Parliament, Queen’s Park or City Hall. The constitutional problem boils down to outsourcing the public interest to a private company without any democratic or legal authority. That in turn risks civil liberties within a free and democratic society. Only elected legislators have the constitutional authority to enact civil liberties protections in law. But you left that task to a subsidiary of Alphabet Inc. Protecting the public interest, forging the rules of the road for data, surveillance and privacy within a Smart City: that’s your constitutional job, as leaders of our three levels of government. The constitutional error that arises with outsourcing the public interest is manifold but it’s akin to a government retaining Exxon to design a country’s energy policy. What are the Charter risks? We believe that the Waterfront Toronto-Sidewalk Labs Framework Agreement and the Plan Development Agreement (“PDA“) contemplate a non-consensual, state-authorized mass capture of Canadians’ personal information. As such, the Charter is engaged and breached: namely, Canadians’ right to privacy under the Charter, section 2 (fundamental freedoms of assembly and association), section 7 (life, liberty and security of the person), and section 8 (unreasonable search or seizure). The PDA also violates privacy statutes applicable to Waterfront Toronto, which is not above the law. The CCLA is contemplating litigation in this matter because your respective governments behave as if unaware that, constitutionally, the emperor has no clothes. Canada needs you to develop the federal, provincial and municipal policies for a Smart City (whether at Quayside or elsewhere in Canada) before the procurement process, not after. As such, CCLA argues for a reset of Sidewalk Toronto, rather than a scrapping of a Smart City altogether. A change of course is needed. Ask not what your country can do for technology – ask what technology can do for your country. If you won’t reset through government or by elected assembly, civil society may need to through the courts. With this open letter to you, we are also asking the public to reach out to their democratic representatives, if they agree, to hit the reset button on Smart City Toronto. In the spirit of public debate, we are also encouraging your governments to respond to this letter, and debate these ideas in your legislative assemblies. Are you contemplating such a reset? If so, when and how? If not, why not? Thank you for considering the foregoing, and we look forward to your response. Sincerely, Michael Bryant Executive Director & General Counsel Canadian Civil Liberties Association Dr. Brenda McPhail Director of Privacy, Technology & Surveillance Canadian Civil Liberties Association ——— [1] Formally the “Toronto Waterfront Revitalization Corporation”, operating as “Waterfront Toronto”and self-described as follows: “Waterfront Toronto is the public advocate and steward of waterfront revitalization. Created by the Governments of Canada and Ontario and the City of Toronto, Waterfront Toronto is mandated to deliver a revitalized waterfront” [emphasis added]. https://www.waterfrontoronto.ca/nbe/portal/waterfront/Home/waterfronthome/about-us [2] Ibid. [3] Ibid.
PRESS RELEASE – APPEAL TO BILL 21 DECISION July 23, 2019July 31, 2019 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 March 28, 2019June 13, 2019 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
Press release – rights groups challenging solitary confinement in… October 16, 2018March 7, 2019 Oct. 16, 2018 For Immediate release — Today the three organizations fighting the federal government in BC and Ontario courts on solitary confinement responded to Bill C-83, tabled this morning by Public Safety Minister Ralph Goodale. “What this bill shows is that this government knows that the current system of solitary confinement cannot continue. The question is whether this bill meets the constitutional standard,” said the BC Civil Liberties Association, Canadian Civil Liberties Association and John Howard Society of Canada, in a joint statement. “We need to examine the bill closely to understand whether this change will be meaningful, or whether the horrific practices of solitary confinement of prisoners including mentally ill, young, and Indigenous people will essentially continue under another name,” they added. The organizations are currently conducting an in-depth review of the newly released bill, which they only received today. The bill’s introduction comes just one month before the appeal hearings of challenges to the federal administrative segregation regime. These challenges were filed by the Canadian Civil Liberties Association and the BC Civil Liberties Association and John Howard Society of Canada. BCCLA and JHSC will appear before the B.C. Court of Appeal on Nov. 13 and 14, while CCLA will appear before the Ontario Court of Appeal on Nov. 20-21. Both cases are challenging solitary confinement laws in light of the devastating harms they cause. BCCLA and JHSC are represented by Joseph Arvay, Q.C., and Alison Latimer of Arvay Finlay LLP, Vancouver. CCLA is represented by counsel Jonathan Lisus and Larissa Moscu of Lax O’Sullivan Lisus Gottlieb LLP and Michael Rosenberg and Charlotte-Anne Malischewski of McCarthy Tétrault LLP. CONTACT: Josh Paterson Executive Director, BCCLA josh@bccla.org 778-829-8973 Ira Lamcja Communications Co-ordinator, CCLA media@ccla.org 416-646-1404 Catherine Latimer Executive Director, John Howard Society of Canada clatimer@johnhoward.ca (613) 219-6471
Sex ed legal challenge continues March 18, 2019August 14, 2019 Today, CCLA formally filed its appeal of the recent Divisional Court decision that upheld the Government of Ontario’s sex ed directive issued last summer. The August 2018 directive replaced the 2015 curriculum with a 1998 version that excluded any references to the existence of LGBTQ+ families. The motion for leave to appeal was filed this morning at the Ontario Court of Appeal. Although the Government of Ontario has announced a new plan for a revised curriculum, the Divisional Court decision must be appealed, we argue, because it sets the constitutional standard against which the latest and future such curriculum will be tested. If the Divisional Court decision were allowed to stand, then there would be nothing stopping a provincial government from preaching discrimination through its curriculum, because, as the Court held, Ontario’s “curriculum does not enjoy Charter protection.” That ruling by the Divisional Court is contrary to established precedents on point, we argue in our materials. The first hurdle for CCLA to cross is obtaining leave to appeal — in other words, the Court of Appeal must decide that an appeal is warranted, based on the tests set out in our Notice. “What happened to our co-applicant Becky and her family must be appealed. Her queer family was simply written out of their daughter’s school curriculum, as if they didn’t exist. Well, they do, and CCLA is fighting for them and against discrimination in the classroom. The law of Canada cannot be that the Charter of Rights and Freedoms does not apply to a public school curriculum,” said Michael Bryant, Executive Director and General Counsel, of CCLA. Background: The hearing for the applications of the Canadian Civil Liberties Association and the Elementary Teachers’ Federation of Ontario against the repeal of the 2015 sex education curriculum were heard together on January 9-10, 2019. Q&A with AN EXPERT To answer some of your most pressing questions, we’ve put together a new YouTube video with Cara Zwibel, CCLA’s Director of Fundamental Freedoms. Below, she talks about why we are taking on this legal challenge, what the legal grounds are and more. Watch it below! MATERIALS Notice of Motion for Leave to Appeal, CCLA Factum of the Applicants, CCLA and Becky McFarlane Factum of the Applicants, ETFO and Cindy Gangaram Factum of the Respondent, Minister of Education (Ontario) Notice of Application for Judicial Review issued Aug 23 2018 AFFIDAVIT – Becky McFarlane – Sworn Aug 15 2018 AFFIDAVIT – Cara Zwibel of CCLA – Affirmed Aug 23 2018 IN THE NEWS City News: Civil liberties association, parent suing Ontario over sex-ed curriculum Toronto Star: Canadian Civil Liberties Association suing province over ‘ham-fisted’ sex-ed rollback Global News: Civil Liberties Association taking Ontario government to court over sex-ed curriculum change CBC Listen | Ottawa Morning: Sex Ed Court Challenge CTV | Your Morning: Ontario government returns to court to defend sex ed curriculum