CCLA at the Supreme Court: when can the police…

Teddy Weinstein
Articling Fellow
tweinstein@ccla.org

 

 

How far can police officers go when initiating a “protective” arrest? Can innocent protestors be arrested even when they’ve done nothing wrong? Can the police make an arrest to try to prevent a potential breach of the peace? These questions and more are what’s at stake in the Fleming v Ontario appeal, being heard today at the Supreme Court of Canada.

Randy Fleming was arrested on May 24, 2009 in Caledonia, Ontario by 7 Ontario Police Officers. He was alone and engaged in a peaceful political protest, when he was forced off of a public road and onto private property. His arrest was ostensibly made on the basis of a common law police power that does not appear in the Criminal Code or any other statute; to arrest a person in order to prevent an “apprehended breach of the peace.” A breach of the peace can be harm or threat of harm to a person or property. “Apprehended breach” simply means that the police officer only needs to be reasonably sure there that a breach of the peace may occur.

In this case, the police were concerned that Indigenous protesters occupying the land that Mr. Fleming walked onto might resort to violence. During this “protective” arrest, Fleming was permanently injured by the officers.

The “ancillary powers” doctrine, according to the Ontario Court of Appeal, made Mr. Fleming’s arrest legal, even though he was not currently committing or even suspected of committing a crime. Ancillary powers are new police powers that can be created by judges at common law, based on an old British case. While using ancillary powers can be justified (for example, the police investigating apparent domestic violence after a 911 call for assistance is abruptly disconnected) the use of the power should be subject to rigorous Charter analysis. Especially in cases like Mr. Fleming’s, where the power is used to suppress lawful free speech.

CCLA is troubled by granting ill-defined, common law police powers that allow the police to deprive people of their fundamental Charter rights to liberty, security of the person, and freedom from arbitrary detention. We are intervening to make sure that they are appropriately limited.

Ancillary common law powers of the police have been used to justify more than just preventative arrests. Warrantless searches, spontaneous road blocks and detention of pedestrians for the purpose of investigation, all fall within the ancillary powers doctrine. The power to arrest for apprehended breach of the peace requires special attention, as it is used against persons who have neither committed an offence nor threatened to do so. It is also resistant to review since, unlike an arrest where charges are laid, the circumstances that give rise to the detention almost never come before a court.

Mr. Fleming’s case is exceptional, then, as it provides a rare opportunity for the highest court in Canada to rule definitively on the limits of the power to arrest for apprehended breach of the peace. The immense societal cost to our freedom of expression that stems from this ill-defined, uncodified police power may finally be appropriately curtailed if the Court requires a rigorous Charter analysis.

CCLA has taken the position that the exercise of ancillary powers by police should be subject to a Charter analysis as proposed by Supreme Court Justices Binnie, LeBel and Fish in their concurring reasons in Clayton, decided in 2007. Without a more robust test in place, the ancillary powers have been used to justify a number of incidents of police misconduct, including during the G20.

CCLA will also ask the court to clarify that when an arrest for apprehended breach of the peace is made, the arrestee should be released immediately, as soon as the risk of the breach of the peace has passed. Prolonged detention simply cannot be justified in these circumstances.

CCLA’s intervention in Fleming is part of our ongoing work to fight for your rights to be free from overbearing police powers, and to protect the rights to free expression and peaceful assembly. We thank our counsel Sean Dewart, Adrienne Lei and Mathieu Belanger for representing us pro bono, and look forward to seeing how the Court addresses the important issues this case raises.

Non-Citizen Voting Rights

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

 

Background

In recent decades, the right to vote and meaningfully participate in the democratic process has widely been recognized as a fundamental right. While the right to vote has increasingly been extended to historically disenfranchised groups (such as women, inmates, and Indigenous peoples), citizenship remains a widely accepted limitation on the right to vote. As it stands in Canada, permanent residents are not permitted to vote at any level of government. Furthermore, Section 3 of the Charter, which guarantees the right to vote and run for office explicitly states that these are rights that are limited to citizens only. Nevertheless, recent proposals in Toronto, Vancouver, and other Canadian municipalities[1] to extend voting rights to permanent residents in municipal elections have brought the issue of non-citizen voting rights to the forefront. This article explores why the disenfranchisement of non-citizens matters, and the existing legal framework in Canada.

Why Does it Matter?

As suffrage has expanded beyond race, sex, and class, non-citizens continue to be the largest adult group excluded from political participation. Yet, the exclusion of non-citizen residents from the democratic process has been widely accepted, since our conception of democracy and voting rights is so closely tied to citizenship.  Although many non-citizen residents pay taxes and own property where they live, they continue to be excluded from the democratic processes, leaving them politically powerless in decisions that have a direct impact on their livelihood. This group includes particularly vulnerable populations such refugees and temporary foreign workers.

The practical implications for non-citizen resident disenfranchisement are significant., In municipalities like Toronto with one Canada’s largest foreign-born population (nearly 1.3 million individuals in 2016), it means that  nearly half of the adult population is left politically voiceless. The disenfranchisement of a large portion of non-citizens who reside in a territory but are unable to participate politically leads to a problem of democratic legitimacy.

Current Legal Framework in Canada

As it stands in Canada, no non-citizen is permitted to vote at any level of government, be it municipal, provincial, or fedral.  The wording of Section 3 of the Canadian Charter of Rights and Freedoms, which upholds democratic rights, explicitly states that voting rights are reserved for Canadian citizens, as  it states, Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. ” The Supreme Court has interpreted the purpose of section 3 as to ensure that every citizen has a the right to play a meaningful role in the democratic process.[2] Democratic rights are thus one of the few Charter-protected rights that are only guaranteed to Canadian citizens.[3] While the current constitutional framework limits voting rights to Canadian citizens, this would not preclude municipalities from extending voting rights to non-citizen residents if there was the political will.

Who else is doing it?

Extending voting rights to non-citizen residents is not without precedent. As it stands, forty five democracies around the world have granted voting rights to foreigners, to varying degrees. While certain jurisdictions allow non-citizen residents to vote in national elections, the majority of democracies confine non-citizen voting rights to local levels.  [4]  Furthermore, all jurisdictions that allow non-citizen voting have long-term residency requirements (this can range from one year to ten years), which disqualifies individuals like tourists, students, and temporary seasonal workers from voting.

Examples of jurisdictions that allow non-citizen resident voting include the following:

  • Sweden allows non-citizen residents to vote in municipal elections and county/council elections, so long as they have been registered in the Swedish population for at least three years.
  • The Netherlands allows non-citizen residents to vote in municipal elections if they have been living in the country with a residence permit for at least five years.
  • The United Kingdom allows resident Commonwealth citizens to vote in general elections. This means qualifying residents who are citizens of nations such as Canada, New Zealand and Bangladesh are permitted to vote.
  • In Malawi, non-citizen residents are permitted to vote in national elections after a period of seven years of residence.
  • In Uruguay, non-citizen residents are permitted to vote in national elections after a period of fifteen years of residence.
  • New Zealand is one of the most inclusive nations, allowing non-citizen residents to vote in both national and local elections after only one year of residency.
  • Chicago allows non-citizens to run and vote in school board elections. From 1968 and 2003, New York did the same.
  • Six municipalities in Maryland allow non-citizen residents to vote in municipal elections.
  • Luxembourg allows non-citizen residents to vote in municipal elections if they have been a resident for at least five years.
  • Belgium allows non-citizen residents that are listed on the foreign nationals list or local electors list to vote in municipal elections.
  • In Switzerland, several cantons allow non-citizen residents to vote at the local level. However, residency requirements can vary from just one year to five years.
  • Article 8b of the 1993 Maastricht Treaty allows citizens of the fifteen signatory states in the European Union who reside in the EU to vote in another EU state.

Conclusion

In an increasingly globalized and transnational world, the voting rights of non-citizens will continue to be an important point of discussion. Although many non-citizen residents pay taxes and own property where they live, and are directly impacted by political decisions, they continue to remain politically voiceless, which leads to an issue of democratic legitimacy. Although Canada’s current constitutional framework only guarantees that Canadian citizens have the right to vote, other jurisdictions have either already granted non-citizens voting rights, or are considering extending the right to non-citizens. As such, Canada should remain active in the debate.

 

 

[1] City of Vancouver, motion B.8, Permanent Resident Voting (17 April 2018); City of Toronto, motion GM22.15, Proposed Electoral Reforms (11 June 2013

[2] Figueroa v Canada (Attorney General), 2003 SCC 37, [2003]1 SCR 912 at para 33

[3] Rheaume v Ontario (Attorney-General), 1989 70 OR (ed) 602, leave to appeal to SCC refused. 

[4] David C. Earnest, “The enfranchisement of resident aliens: variations and explanations” (2015) 22:5 Democratization 861 at  863.

CCLA to Ottawa: Call a SCC Reference

Michael Bryant 
Executive Director and General Counsel

mbryant@ccla.org

 

 

 


Of the many tools at the disposal of a government in times of profound uncertainty, the least used yet so powerful is that of a “
reference” to its highest court.  The federal government has had resort to the Supreme Court of Canada (“SCC”) for such thorny issues as Quebec secession and same-sex marriage; provinces called references on the patriation of the Constitution, eventually appealed to the SCC.  Canada’s freshly minted Justice Minister David Lametti could bring to Cabinet for their approval, pursuant to Supreme Court Act, R.S.C. 1985, c. S-26, s. 53(1) or (2), a reference to the Court, regarding the proper constitutional relationship and protocol between the Prime Minister, Cabinet and Attorney General on a Criminal Code prosecution, plus how that relationship attracts solicitor-client or litigation privilege, if at all.

Why call a reference?  Because Canadians don’t know what to believe.  The Justice Committee hearings underway will not result in any answers, only more questions.  But it turns out that the questions raised invoke constitutional conventions, the existence and scope of which the Supreme Court has opined upon time and again.  

Last week, before the Justice Committee, the Privy Council Clerk cited a constitutional convention he called the Shawcross doctrine, to excuse executive interference with SNC Lavalin’s prosecution. (The doctrine is the AG’s to use, in fact, not for the PMO or PCO to abuse, but that convention’s scope could be cleared up by the Court).

Resignations have fuelled the scandal, the most significant of which is that of a Cabinet Minister: former Attorney General, Jody Wilson-Raybould. Unsolicited Cabinet resignations are constitutional moments of government dissent by a Member of Parliament, whose expression of dissatisfaction cannot be more powerfully put than departing from the Executive Council on principle.  The PM’s consigliere has also resigned from the Prime Minister’s Office, heightening the political intrigue but not of significant constitutional relevance, as he denied any wrongdoing.

Meanwhile, a charade of censorship purports to gag the former Justice Minister, based on faux claims of privilege — namely, solicitor-client privilege and litigation privilege — owed by Hon. Ms Wilson-Raybould to the Prime Minister.  This is the shakiest case for self-imposed suppression in memory. (Not that we don’t take legal privileges very seriously at the CCLA. In 2015, we went to the Supreme Court of Canada to fight anti-terrorism laws that compromised solicitor-client privilege.  The Court agreed, upholding the constitutional protections attached to solicitor-client privilege, declaring it a hallowed principle of fundamental justice).

This only underscores the caution against abusing such privilege for political purposes, by denying transparency and accountability in the name of protections intended to protect due process, not political reputations (so, for example, the late Eddie Greenspan was able to defend himself after his client Conrad Black challenged Greenspan’s unimpeachable integrity).  

It’s hard to argue that solicitor-client privilege applies where there is no solicitor involved.  It turns out that Ms Wilson-Raybould let her membership lapse with the Law Society of B.C. So she was a non-lawyer Attorney General.  The Law Society this week flatly ruled out that privilege as applying to her because she lost her legal privileges. So that leaves litigation privilege, which does apply regardless of her non-solicitor status.  It protects particular communications by particular people regarding the prosecution of SNC Lavalin. But that privilege was waived long ago by the Prime Minister and his former Principal Secretary when they both publicly stated their version of what was said.  Then to further complicate matters, the former AG gave her side of the story before Cabinet this week. While that deliberation is protected by Cabinet privilege (often observed in the breach, it must be said), the recitation of potentially privileged information in a political, rather than a legal context, to a roomful of people who are not parties to the litigation, ends whatever litigation privilege attached to that information, arguably.  

Nevertheless, it remains a live issue, as of this writing, with little chance of being resolved, absent an official ruling, which apparently cannot be found within the executive ranks.  One of the questions for the Supreme Court of Canada to rule upon, then, would be: where and when does litigation and solicitor-client privilege apply, if at all, between Attorney General and Prime Minister? Furthermore, does having a non-lawyer Attorney General change that?  

Canadians are wondering what’s going on in Ottawa, unsure whether this controversy is worth the ink being spilt.  What’s a PMO, exactly and who is Gerald Butts? They did what, for who, and why is that a problem? Absent a criminal trial, there will be no definitive answers forthcoming as to how the system is supposed to work, when a major Canadian employer is being prosecuted for a crime, while very publicly seeking, nay campaigning, for a remedy unavailable to the hundreds of thousands of people prosecuted every year in Canada.  

People deserve a justice system they can trust but I doubt most elites know its true reputation among the hoi polloi.  For part of my adult life, I never imagined the Canadian justice system as being capable of corruption. When I began working with indigent criminal defendants, however, I learned that most of them assume the system to be rigged;  that powerful people operate levers that punish enemies and reward friends. The masses are skeptical, no doubt, sharing neither my former adoration nor defendants’ hatred of a system that feels like a juggernaut, a conviction machine, where the presumption of innocence is a joke.  The PM and his supporters are perhaps getting that feeling, at last, themselves. Our justice system today is nothing if not merciless.

Calling a reference to the Supreme Court of Canada would permit a full airing of these issues without the attendant soap opera politics underway, with greater certainty being brought to the important principles of quasi-judicial independence — which, I should add, is interpreted inconsistently across Canada, depending on the province and sometimes even within a province or territory.  A reference could ask the questions: who can discuss what with the Attorney General about a Criminal Code “remediation agreement” requiring her quasi-judicial consent? What communications are privileged and under what circumstances might that privilege be lost?

The principle at stake is nothing less than the independence of the justice system, and just how exactly the different branches of the state are supposed to function during a criminal prosecution.  The judicial branch presumably shouldn’t be hearing from the PMO, ever, about anything other than budgets and appointments. The executive branch — the PM and Cabinet — gets involved with prosecutions never or sometimes or … what say you Supreme Court of Canada?   Lastly, what is the proper relationship between Cabinet and Attorney General, this strange constitutional animal that’s an elected politician appointed to her position in Cabinet by the Prime Minister, who has both policy duties (cannabis legalization, DUI laws, jury law reform) and quasi-judicial duties (criminal prosecutions and constitutional litigation).  What is the statutory law and what constitutional conventions apply to all these acronyms?

All of this boils down to whether and how the Attorney General, in exercising her quasi-judicial duties, consults with the Executive branch of the state, in her determination of the public interest.  That determination is a decision-point for any quasi-judicial officer in the conduct of a prosecution. The evidence, facts, and law are considered, plus the public interest. We at CCLA believe that, unless they put it all on the record (in writing, via Canada Gazette, or in Parliament), there should be no more contact between Cabinet and the Attorney General on such matters as they would have with a judge, if only to confer the necessary appearance of independence along with the substance of it.  In the alternative, the UK constitutional practice suggests that the Attorney General, who does not sit in Cabinet, may solicit input from Cabinet Ministers on salient points, but should not be pressured by anybody, nor receive unsolicited advice.  

There are alternative views, which makes a Supreme Court of Canada reference all the more necessary.  The federal Director of Public Prosecutions will have a view, as may other provinces, who might rightly wish a bright line, given that they prosecute plenty more than the feds.  On the other hand, perhaps some civil society groups wish that there were more Executive interventions in the name of remedying systemic discrimination. The Chamber of Commerce may have something to say about the impact of all this upon business and the economy.  Something tells me SNC Lavalin would seek standing.

Former Ontario Attorney General and Chief Justice Roy McMurtry explained much of this when he rose in the Legislative Assembly of Ontario in 1978 to explain why the Crown would not prosecute a (resigned) P.E. Trudeau Cabinet Minister for alleged criminal wrongdoing.   It was an officious act that bolstered public confidence and opened up the decision to complete transparency. The same goals might be accomplished, to the betterment of the administration of justice, through a reference to the Supreme Court of Canada, on Executive Council-Attorney General communications regarding a Criminal Code prosecution, and any legal privilege attaching thereto.

The insider’s objection to the reference idea is timing.  On the one hand, the autumn election does not make the issue moot; it’s of lasting significance.  On the other hand, the government realistically won’t call a reference unless they’re betting that they can benefit from it pre-election, believing their position to be defensible.  However, there is nothing stopping the Governor in Council (Cabinet) under the statute from putting timelines in place. It is open to the Court to refuse to hear a reference, and they may refuse to meet the requested timelines, although I would be surprised if a reasonable timeline was ruled out.  Other countries, like Israel, have a Supreme Court that will sit on a moment’s notice, literally, when called upon for guidance, just as the US Supremes turned around Gore v. Bush with alacrity.  If Canada cannot seek a reference and get an answer to these pivotal constitutional questions in a few months, Canadians rightly have to wonder, as we often do at CCLA, just whose justice system this is.  

Michael Bryant is Executive Director and General Counsel of the Canadian Civil Liberties Association.  He was the 35th Attorney General of Ontario 2003-07 and clerked at the Supreme Court of Canada in 1992/93.

A Victory For Democratic Rights at the Supreme Court

Rob De Luca
Director of Democracy and the Rule of Law Program
rdeluca@ccla.org

 

 

 

 

Today, the Supreme Court of Canada has released its long awaited decision in Frank v Canada, striking provisions of the former Canada Elections Act that had prohibited certain non-resident Canadians citizens from voting in federal elections.  

The decision is a victory for the principle of equal citizenship.  We had argued, before the Supreme Court, that the voting restrictions effectively created a discriminatory system of tiered citizenship, which treated non-residents as less Canadian, second-class citizens. Today’s decision confirms that this system of tiered citizenship is contrary to the Charter’s broad protections for the right to vote.

Prior to the Court’s ruling, Canada’s federal government had amended the Canada Elections Act and removed the contested provisions, which denied the right to vote for “non-resident” electors, i.e., Canadian citizens who have been residing abroad for more than five consecutive years or for Canadian citizens who are abroad for less than five years but who do not intend to return to Canada. Yet, today’s decision has important implications both for the future of the right to vote in Canada and for the meaning of Canadian citizenship more broadly.

A majority of the Supreme Court reasoned that the restriction on voting was not adequately tailored to respond to a specific problem.  Indeed, the legislation was over-inclusive, restricting the rights of voters who were strongly committed to Canada and who were deeply affected by Canadian legislation and policies.  The majority also noted that any good that was achieved by ensuring electoral fairness for resident Canadians was clearly outweighed by the effects of disenfranchising non-resident Canadians.  This is particularly true in a globalized society, where many Canadians now choose to live abroad for significant amounts of time. The decision will now stand as an important limit on any future government attempting to deny non-resident electors the right to vote.

Our arguments before the Supreme Court focused on why the residency-based prohibitions on voting were contrary to the value of equality that underlies the Charter right to vote. Prior to being amended, the Canadian Elections Act treated an entire class of Canadian citizens, numbered in the hundreds of thousands of Canadian citizens, differently and unfairly based on a personal characteristic — their place of residence.  

The government argued, in support of these restrictions on the right to vote, that the vote should be restricted to Canadians who are most affected by, and obliged to obey, Canadian laws.  But as the majority recognized today, these arguments miss the mark. Canadians residing abroad pay tax on income made in Canada, frequently have family in Canada, and can be, and often are, subject to Canadian laws that operate outside our borders (such as, for instance, our laws governing campaign finance and electoral advertising). In short, they have a real stake in Canadian laws and policies and should not be left without political representation.

More troublingly, residency-based prohibitions on voting deprive an entire class of Canadians of the opportunity to carry out their fundamental duties of democratic citizenship and thereby deprive them of their personal autonomy and self-determination.  They create a category of “second class” citizens who are not trusted to give full voice to their political concerns. The discriminatory character of this tiered-citizenship is deepened by the correlations that often exist between residency and ethnic or national origin.  Residency-based restrictions ensure that classes of citizens from certain ethnic or national backgrounds will have a lesser say in Canadian politics because these groups are more likely to live abroad for significant amounts of time.

Today’s decision is an important win for the right to vote in Canada.  A difference in place of residence simply cannot justify depriving individuals of their right to be full and equal Canadian citizens.

Canadians Care about Privacy, Politicians Need to Show They…

Brenda McPhail
Director of Privacy, Technology & Surveillance Project
bmcphail@ccla.org

 

 

 

 

73% of Canadians are concerned or somewhat concerned about how political parties use personal information according to a Nanos poll released today by the Globe and Mail.

So why aren’t political parties covered by privacy law in Canada?

It’s certainly not because parties don’t collect or use personal data. Every party has a voter database to keep track of supporters, donors, the results of knocking on doors—in other words, the information necessary to run campaigns. Some parties give apps to their canvassers to let them input data on the fly. Every party relies on data analysis to assist with strategy. And almost inevitably, every party shares information with third party service providers contracted to do things like process donations or running polls.

It’s also not because there is widespread disagreement about whether or not information about our political opinions is sensitive and deserves protection. Political belief is a prohibited ground for discrimination under the Canadian Human Rights Act and other such acts internationally. In the European Union, the General Data Protection Regulation which is influencing the privacy landscape around the globe also explicitly includes political opinions as a “special,” i.e. sensitive, data category. Which raises another point: Canada’s failure to include political parties under privacy law is not because no one else does, as the UK, much of the EU, and New Zealand all have laws covering political organisations.

It’s similarly hard to argue parties should be excluded from privacy laws because it will impair democratic process. We have the perfect example in British Columbia, the one province that has included political parties under their privacy legislation since 2004. Parties there continue to collect information, engage voters, and run effective campaigns in what is arguably one of the most politically exciting provinces in the country.

And it’s absolutely not because experts think it’s a bad idea. During its recent study of the privacy vulnerabilities in Canada’s democratic electoral process, the Parliamentary Committee on Access to Information, Privacy and Ethics listened to a long line of witnesses and concluded that political parties really should be covered by a law.

Every provincial Information and Privacy Commissioner in Canada, along with the federal Privacy Commissioner, agrees. In a joint resolution issued Sept. 17, they called on governments to pass legislation to govern political parties’ use of personal information, to provide for oversight over those uses, and to provide people with access to their own information held by parties.

In other words, they asked that political parties be required to abide by the same privacy principles and rules that governments and companies who collect our information have to follow.

So why are political parties not included under privacy law in Canada? The simplest answer seems to be, because they don’t want to be. There simply isn’t the political will to make it happen, as the current government’s electoral reform effort, Bill 76 makes sadly clear.

Private sector companies cannot use your personal information without consent. Parties can. Elected governments are limited in their ability to collect information from us for one reason and use it for another. Political parties are not.

Why does it matter? We live in an age where we want to use data like a magic wand, something we can point and – poof – the way to influence a person or group of people is revealed. Obviously, we should question whether that’s truly the way it works, but simply the perception that it might means that every political party wants as much information about us as they can get. It is clear they are all looking for new and exciting ways to learn about us, to target us, and to predict our behavior, to get a leg up on their competition. So, it’s a problem that there is no laws governing how far they can go.

To be fair, all of the major parties have their own privacy policies. Some of the polices are not bad. But these are rules parties make and enforce for themselves. It is all a matter of trust in a climate where there is a lot of motivation to push the boundaries, and where public faith in the integrity of our political processes is fragile.

While there are no principled reasons why privacy law should not apply to political parties in the same way it does to pretty much every other public and private sector data collector, fair implementation would be essential. Such legislation cannot be crafted in such a way as to handicap an opposition party, or to make compliance disproportionately difficult for parties who are less resourced. Any proposed legislation must be carefully considered, principled and fair: no political gamesmanship can be allowed in the name of privacy protections.

It is really very simple. Political parties who ask for our votes — and our credit card numbers—should be legally responsible for respecting our privacy rights.