CCLA 2017 Year End Hi-Lights

December 15, 2017

CCLA Fights Solitary Confinement in Federal Prisons

CCLA concluded its constitutional challenge of the solitary confinement regime in federal penitentiaries, and is now awaiting a decision. Our legal team presented evidence to the court about the devastating harms of prolonged solitary confinement, the critical need for appropriate oversight, and in particular the serious harms of this practice for young adults, inmates in need of protection, and people with mental health issues. In September, the court held a 4-day hearing in the case. CCLA began this application in 2015.

Source: The Canadian Press, Colin Perkel

Current safeguards do not provide a level of procedural fairness that is commensurate with the extreme deprivation of liberty. A warden is making a decision to segregate…and then a warden is being asked to review his or her own decision.

– Michael Rosenberg

Solitary confinement, especially prolonged solitary confinement, can cause serious trauma and may lead to deterioration in mental health. We know the harm is very, very real.

– Jonathan Lisus, CCLA Board member

CCLA appreciates the tremendous work of our entire team of lawyers including Jonathan Lisus, Larissa Moscu, and Fahad Siddiqui (Lax O’Sullivan Lisus Gottlieb LLP) and Michael Rosenberg, Paul Davis, and Charlotte-Anne Malischewski (McCarthy Tétrault LLP).

For more information on our segregation challenge, click here.

A Win for Privacy in Text Messages

CCLA intervened in the combined cases of R v Marakah and R v Jones, to argue that the sender of text messages has a reasonable expectation of privacy in those messages. The Supreme Court released its decision on December 8th stating that individuals do have privacy interests in conversations conducted through electronic means. (Christine Lonsdale and Charlotte-Anne MalischewskiMcCarthy Tétrault).

See here for more information on Marakah and Jones.

CCLA’s Challenge of PIPEDA

In 2014, CCLA challenged provisions of the Privacy Information Protection and Electronic Documents Act (PIPEDA). In our application, we argue that the law has allowed government institutions to access personal information from telecommunication companies and internet service providers on a massive scale. We continue to take this constitutional challenge through the courts.

We are grateful to CCLA Board member Andrew Lokan (Paliare Roland Rosenberg Rothstein LLP) for his excellent pro bono work on this case.

For more information on PIPEDA, see here.

Teen Peer Privacy Project

A new privacy guidebook and website created by teens for teens is the product of a year-long project by CCLA and CCLET. The materials provide privacy information and helpful tips for teens as they navigate the online world.  As part of the project, a group of youth engaged for a year in a series of workshops led by prominent Canadian privacy researchers. We launched the privacy guidebook and website for use in Canadian schools in March 2017. CCLA and CCLET are grateful to the office of the Privacy Commissioner of Canada for the grant to create the Peer Privacy Protector’s Project. The project can be viewed, in English and French, here.

Privacy at the Border

CCLA’s Privacy, Technology and Surveillance Director, Brenda McPhail, was invited on different occasions to speak with Parliamentary Committees, notably the Standing Committee on Access to Information, Privacy and Ethics. In response to an invitation to discuss privacy at airports, borders, and travelling in the US, CCLA explained to the Committee that searching a cell phone is not the same as searching a suitcase. There is an enhanced expectation of privacy in cell phones and other electronic devices because of the quantity and quality of personal information they may contain. CCLA recommended that Canada should update our law and not allow warrantless searches of electronic devices with unclear grounds based on an interpretation of legislation meant to apply to luggage.

Information Sharing Between Different States

CCLA participated with international partners in a joint initiative to ask governments in 10 countries around the world about their electronic intelligence information sharing agreements, by making access to information requests to national security agencies. CCLA asked CSIS and CSE about the ways they share Canadian information with other intelligence agencies, and how these arguments are made and monitored.

Click here for more information.

Exclusion of LGBTQ+ Students and Faculty at Trinity Western

CCLA intervened in the Trinity Western University (TWU) case at the Supreme Court of Canada concerning a prospective law faculty at TWU. This private evangelical Christian university prohibits, among other things, sexual intimacy outside of “marriage between one man and one woman.” The Law Societies of Upper Canada and British Columbia denied accreditation to TWU’s prospective law school because of discrimination against LGBTQ+ students in particular. CCLA told the court that accreditation of a law school confers upon the host university a significant public benefit – financial and reputational and equality, liberty, and privacy rights would be violated if accreditation is granted. (Trinity Western University v Law Society of Upper Canada – Alan D’Silva and Alexandra Urbanski Stikeman Elliott LLP).

See here for more information.

CCLA Fights for Rights of Minority Women

CCLA and others launched a constitutional challenge of a new law targeting a tiny minority of women in Quebec for discrimination. Formerly Bill 62, the law prohibits wearing a face covering when giving or receiving public services. This would prevent affected women (and their dependent children) from riding buses, using daycares, accessing government services, and receiving medical care, or from working in any aspect of the public service. While only a small minority of Muslim women in Quebec wear a face covering, government has no place dictating what women can and cannot wear. This law will likely harm not only these women but also their children, families, and others who appear to be Muslim. CCLA, together with the National Council of Canadian Muslims and one individual, filed an application challenging the constitutionality of the law, and filed a motion asking for its immediate suspension. On December 1, 2017, the Quebec Superior Court granted our motion and temporarily suspended the law – an important first victory.

CCLA is grateful to counsel Catherine McKenzie and Olga Redko (IMK LLP) for their extraordinary work.

Read more about our challenge here.

Discrimination Based on Police Records, Genetics, Immigration, and Social Condition

CCLA Acting Executive Director Noa Mendelsohn Aviv publicly supported a private member’s bill aimed at closing certain gaps and constitutional defects in the Ontario Human Rights Code. The bill would prohibit discrimination on the basis of police records, genetics, social condition and immigration status. The bill was introduced by former CCLA Executive Director and General Counsel Nathalie Des Rosiers, now a Member of Ontario’s provincial Parliament.

Bill C-59 – Some Fixes, but Some New Problems in Canada’s New National Security Legislation

C-59 is a significant new bill intended to address longstanding issues in Canadian national security law, and respond to critical flaws introduced by the earlier Bill C-51, which CCLA has challenged in court. C-59 has the potential to completely reimagine the Canadian national security landscape — and our rights and freedoms along with it. Unfortunately, however, while the bill gets some things right, it fails to make some needed fixes identified in our constitutional challenge to Bill C-51, and adds some serious new problems.

CCLA’s national security team has analyzed this 150-page bill in depth; created an ongoing public engagement campaign to help people understand the intricacies of this massive bill and to encourage civic involvement; appeared before the Standing Committee on Public Safety and National Security; will be providing the Committee with detailed written submissions; sent a joint letter to the Ministers of Public Safety and Justice; engaged media and published opinion pieces here and here.

See our Bill C-59: Get it Right! Campaign page for more information.

Protestors’ Rights

During a period of increased political advocacy and engagement, and in advance of a march against white supremacy in Canada, the CCLA updated its Protestors’ Guide. The Guide was made publicly available on our website and was shared through social media.

Should a Doctor’s Freedom Always Trump their Patient’s Right to Medical Care?

In a case concerning new policies by the Ontario College of Physicians and Surgeons, CCLA intervened to argue that a doctor who wishes to deny a patient care on the basis of their religion or conscience, should nonetheless be responsible for ensuring that the patient has an effective referral – a referral to someone who can and will provide the care needed. (The Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of OntarioRahool Agarwal and Kate FindlayNorton Rose Fulbright Canada LLP).

Learn more about our challenge here.

A Lawyer’s Freedom to Make a Strong Argument in Defense of their Client

CCLA’s Acting General Counsel Cara Zwibel appeared before the Supreme Court of Canada in Groia v Law Society of Upper Canada. The case concerns a lawyer’s strongly worded in-court statements made in defense of his client, a finding of professional misconduct against the lawyer on the basis of “incivility,” and the question of when such a finding impacts freedom of expression. CCLA argued that, in order to best protect the rights of clients, the threshold for disciplining a lawyer for incivility based on in-court statements should be very high, and that a penalty should be imposed on a lawyer only in the clearest of cases, where there is or is likely to be a miscarriage of justice.

For more information, click here.

Access to Information – Inadequate Reforms

A strong access to information regime is vital to a vibrant democracy. Without information about how our government functions, we simply cannot participate in our democracy in a meaningful way, demand important changes, or make informed choices at the ballot box. CCLA appeared before the Standing Committee on Access to Information, Privacy, Ethics in relation to the study of Bill C-58 which had been introduced as a reform of this regime. CCLA believes the Access to Information Act has been in need of a major overhaul for many years, and the proposed amendments in C-58 do not address a number of long-standing concerns related to the law.

Read more about Bill C-58 here.

Democratic Rights in Newfoundland

The Supreme Court of Newfoundland and Labrador released its decision in Mitchell v Jackman, concerning Newfoundland and Labrador’s Elections Act. CCLA had intervened in the case, and welcomed the decision as a significant advance for democratic rights. The courts decision frequented quoted from CCLA’s arguments. The case challenged provisions in Newfoundland’s Elections Act that allowed special ballot voting before the official nomination of candidates and even before an election was officially called. (Mark Watton – National Energy Board, formerly of Fasken Martineau and Jennifer McAleerFasken Martineau).

Read more here.

Journalistic Freedom – the Right to Protect a Source

Source: The Canadian Press, Colin Perkel

CCLA intervened in a case concerning Vice news journalist Ben Makuch. The case considered when a journalist can be compelled to reveal communications with a source for the purpose of assisting a police investigation, and whether the police record underlying the production order should be subject to a sealing order or a publication ban. The case will be appealed to the Supreme Court of Canada. (R v Vice MediaBrian Radnoff and Christopher Shorey Lerners LLP).

Read more here.

Extraordinary Police Power

CCLA Director of Public Safety, Rob De Luca, appeared before the House of Commons Standing Committee on Justice and Human Rights, expressing concerns that the impaired driving bill would authorize random breath testing, increase mandatory minimum fines and maximum allowable penalties, and provide the Crown with “shortcuts” for proving that an accused committed a drug impaired driving offence.

“Bill C-46 would remove the current requirement – a critical limit to police powers – that police have a reasonable suspicion a driver has been drinking alcohol before demanding a breath sample. Under the new provision, any lawful police stop of a vehicle, no matter how trivial, would be sufficient cause to demand that a driver blow into a breathalyzer. License, registration, and blow.”

Excerpt from Toronto Star op-ed by Rob De Luca

For more information on the impaired driving bill, see here.

Education of Youth in Pre-Trial Detention

CCLA has undertaken a research project examining the state of education for youth held in pre-trial detention in Ontario. The research involves interviews with justice professionals, academics, corrections administrators and staff, as well as youth who have lived experience of educational programming while in detention, and their parents. Through this work, the organization aims to identify gaps and challenges in the current system, as well as best practices. These will form the basis for advocacy efforts to encourage action and policy change. This project is made possible through a generous grant from the Laidlaw Foundation.

Seeking Justice in the Criminal Justice System

CCLA intervened in a number of cases concerning the criminal justice system, addressing such issues as the right of an accused to the least restrictive form of bail (R v Antic – Jonathan ShimeCooper, Sandler, Shime and Bergman LLP); the need for accused persons to be fully informed of the consequences of their guilty pleas, including immigration and employment consequences (R v Wong – Anil Kapoor (CCLA Board Member) and Ian KasperKapoor Barristers); the unfairness of a mandatory victim surcharge that effectively imposes harsher sentences on persons living in poverty and those otherwise marginalized (R v. Boudreault – Chris Bredt, Pierre Gemson, and Alannah FotheringhamBorden Ladner Gervais LLP); and ensuring that those whose Charter rights have been breached in a parole decision have access to an effective remedy (R v BirdAudrey Boctor (CCLA Board member) and Olga Redko IMK LLP).

Educating for Civil Liberties

Civil Liberties in the Schools

The Canadian Civil Liberties Education Trust (CCLET) delivers workshops to students and teachers to encourage civic engagement and critical thinking about rights and freedoms, and to help teachers learn new approaches to dealing with controversy in their classrooms. CCLET’s two flagship programs, Teaching Civil Liberties and Civil Liberties in the Schools, engages thousands of students and teacher-candidates in hundreds of classrooms every year. CCLET is grateful to the Law Foundation of Ontario for its generous support of these programs.

Wow, what a fantastic presentation! I was very interested and engaged in all  of the discussions we had today! It is so very important to teach children about their rights…”

Read more here.

Fundamental Freedoms Conference for High School Students

CCLET’s 21st annual Fundamental Freedoms Conference brought together hundreds of Toronto District School Board high school students. Students attended workshops on many issues including: food security, police carding, health, sexuality, and the justice system. The keynote address on privacy protections in text messages was delivered by Christine Lonsdale (McCarthy Tétrault LLP).

To read more about the workshops and conference, click here.

Alan Borovoy Fundamental Freedoms Conference (Calgary)

Myra Merkur, long-time friend of the CCLA, sponsored the first ever Alan Borovoy Fundamental Freedoms Conference at the University of Calgary in May of 2017. The conference was held in partnership with the Alberta Civil Liberties Research Centre. CCLET is deeply appreciative of Ms. Merkur’s contribution that made this conference possible.

The conference format was modeled after CCLET’s annual Fundamental Freedoms Conference in Toronto, and was attended by 100 high school students and their teachers from several schools across the Calgary Board of Education. The keynote address was delivered by Dennis Edney, Q.C.. Workshop leaders included CCLA’s Brenda McPhail and a number of local Calgary lawyers who spoke to issues around privacy, policing, LGBTQ+ rights, Indigenous rights, refugees and poverty.

Remote Rights Project for Rural, Remote and Indigenous Communities

In 2017, CCLET successfully applied for funding from the Canadian Internet Registration Authority to adapt its Civil Liberties in the Schools high school programming for delivery in an online format. The goal of this project is to make CCLET’s programs more readily accessible by learners in rural, remote, and Indigenous communities all over Canada, where access to in-class programming is often limited due to resource constraints and geographical divides. The content for this Remote Rights Project is being developed through in-person consultations with members of these communities across Canada. CCLET’s Remote Rights Project Manager Cee Strauss has engaged in community consultations in Fort Nelson, British Columbia; Caroline, Alberta; St. John’s Newfoundland; Fort Severn and Timmins, Ontario.

For more on the Remote Rights Project, click here.

Bernard Chernos Essay and Video Contest

For nearly two decades, the Chernos Family has generously funded CCLET’s annual Bernard Chernos Contest, which is open to high school students across Canada. The contest is held in memory of the late Bernard Chernos, a civil libertarian, lawyer, and a lover of lively debate. CCLET is grateful to the Chernos family for their ongoing support.

For more information on the essay and video contest, click here.

Social Justice Through the Arts Collaboration

For the past three years, CCLET has partnered with VIBE Arts on the Social Justice Through the Arts program, which has allowed CCLET to combine its traditional Civil Liberties in the Schools programming with a hands-on exploration of art as advocacy. 2017 is the final year of this program, available strictly for high schools identified as high priority based on measures of external challenges affecting student success.