e-Bulletin November 2013

November 1, 2013

Greetings from CCLA,

This past month, Canadians Tarek Loubani and John Greyson were released from detention in Egypt and returned to Canada. We celebrate their safe return home, and at the same time, we remain mindful of the other Canadians detained abroad, and continue to monitor their situations and their due process rights. Earlier in the month, we joined international colleagues to release the report “Take Back the Streets: Repression and Criminalization of Protest around the World”, co-edited and authored by CCLA and other civil liberties groups that are part of the International Network of Civil Liberties Organizations, described below.  CCLA brought international prison expert Andrew Coyle from the UK to testify at the Ashley Smith Inquest.  Two Supreme Court of Canada decisions relating to police searches and privacy were rendered and we give you our analysis below.

We invite you to browse through the Civics for Kids page created by CCLA in partnership with TVOParents.org.  And we include a spotlight of CCLA pro bono lawyer Anil Kapoor, an expert in criminal law and national security who has acted for us many times before, and will be representing us next week in the extradition case of Hassan Diab.

We could not do our work without your invaluable support and we thank you!

Sincerely,

Sukanya Pillay

Interim General Counsel and Acting Executive Director

 

Table of Contents

  • CCLA Welcomes Home Tarek Loubani and John Greyson
  • Supreme Court Decisions on “Reasonable Suspicion” Searches Set Disconcertingly Low Bar for Police
  • CCLA Calls Prison Expert to Testify at Ashley Smith Inquest
  • CCLA Joins Civil Society Across Globe to Release Report Titled “Take back the streets”: Repression and criminalization of protest around the world
  • CCLET and TVOParents Present Civics For Kids
  • CCLA Intervenes in Hassan Diab Case in Ontario Court of Appeal
  • Spotlight on Anil Kapoor

 

CCLA Welcomes Home Tarek Loubani and John Greyson

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CCLA is elated that Tarek Loubani and John Greyson, two Canadians detained without charge in Egypt since mid-August, were released in early October and returned to Canada later that month.

Dr. Loubani and Mr. Greyson had been held in an Egyptian prison since they were arrested while assisting wounded demonstrators in mid-August, on a short-stop over in Cairo on their way to provide humanitarian assistance in Gaza.  While in prison, both men went on a 16-day hunger strike to protest their detention.

During their detention, CCLA wrote to Prime Minister Harper [http://ccla.org/2013/09/30/canadians-detained-in-egypt-ccla-calls-for-government-intervention/] urging him to directly intervene for their immediate and safe release.  During the weeks prior, CCLA had strongly urged the Canadian government to do everything possible to secure their release.

 

Read a message of thanks to CCLA from Tarek Loubani and John Greyson:

Hi Sukanya,

Firstly, thank you so much for your and the CCLA’s support! I’ve always been a huge supporter of their work, even though I never expected to be on the other side of a bulletin.

On 16 August 2013, we were arrested during a violent military crackdown on non-violent protesters in Ramses Square, Cairo.  Our crime: providing medical support and documentation of the massacre.

Many voices supported our release, including the CCLA.  Without voices like yours, we would still be in jail, like the other 600 arrested with us that day.  Thank you for your efforts.

Our work is not done.  The other 600 remain in jail, as do probably thousands of others arrested during different crackdowns.  As well, the assault on civil liberties in Egypt continues, as it does everywhere.

We are pleased that you continue to support, defend and advance our civil liberty in Canada and abroad.

Supreme Court Decisions on “Reasonable Suspicion” Searches Set Disconcertingly Low Bar for Police

On September 27th the Supreme Court released its decisions in R. v. MacKenzie and R. v. Chehil, a pair of cases involving police searches with sniffer dogs and the ‘reasonable suspicion’ standard.

CCLA is concerned that the Court’s general formulation of the reasonable suspicion standard – that the evidence must support apossibility of criminal behaviour in light of the circumstances – sets a very low bar for authorizing police detentions and searches.

Currently under Canadian law, police are authorized to conduct a warrantless sniffer dog search if they have a ‘reasonable suspicion’ that an individual is involved in criminal activity. CCLA had argued that a rigorous, restrictive approach must be taken when examining the content of the ‘reasonable suspicion’ standard.  As Justice Binnie stated in the first Supreme Court case that considered this issue, the court’s after-the-fact examination of police conduct is the only protection an individual has against this particular form of unlawful searches.  CCLA urged the Court to clarify that the police must be able to offer objectively-verifiable evidence, and a proven link between the ‘suspicious’ facts they observed, and the crime.  Over-reliance on generalized malleable ‘profiles’ of criminals or unsupported assertions of police expertise opens the door to stereotyping and profiling.  Assertion of rights – in particular the right to silence – must not be used to contribute to an officer’s ‘reasonable suspicion’.  And finally, the number of innocent people who could be falsely caught up in warrantless searches and detentions must also be taken into consideration.

The majority of the Supreme Court held that, in both cases, the searches were justified based on the officers’ observations, training and experience.  CCLA is concerned that the vague, broad nature of the ‘evidence’ upholding the searches in these cases will open the door to police conducting searches and detentions of vast numbers of innocent individuals.  The Association particularly agrees with the strong dissent in MacKenzie, that the ‘evidence’ identified by the police officer should not have been sufficient to support a privacy-intrusive search.  Although we will need to wait for future cases to determine how the standard is being interpreted and applied by lower courts, CCLA is concerned that the majority’s application of principles to the facts will open the door for the police to engage in speculative searches and detentions based on generalized suspicion and after-the-fact justifications.

To read the Court’s decision in Chehil click here.

To read the Court’s decision in MacKenzie click here.

To read a more detailed discussion  of the cases click here.

To read the CCLA’s factum in the appeal click here.

 

 

CCLA Calls Prison Expert to Testify at Ashley Smith Inquest

CoyleOn October 21st and 22nd, 2013, the inquest into the death of Ashley Smith heard from CCLA’s witness, Professor Andrew Coyle, a former prison governor renowned for his international expertise on prison management, international prison standards and best practices, segregation and accountability measures.

CCLA is a party to the inquest, and brought Professor Coyle from the UK to testify, recognizing that his expertise would be invaluable to the jury as it seeks to make recommendations to prevent tragedies such as that of Ashley Smith’s death.

Professor Coyle spoke to issues of prison ethics, opening up prisons to public monitoring and accountability, and the need for professional staff and good leadership.  He further discussed the particular vulnerabilities and needs of youth in prisons, women prisoners, and individuals with mental health concerns.  He also addressed the critical issue of segregation with discussion of international standards which severely restrict the use of segregation for vulnerable people, and restrictions on prolonged segregation (over 15 days) due to the harmful effects on individuals.

As is customary, Professor Coyle was questioned first by CCLA’s pro bono special counsel Allison Thornton (Koch Thornton LLP), and then cross-examined by many of the parties to the inquest.  Counsel for Ashley Smith’s family had no questions for Professor Coyle, but took a moment to publicly thank him for his appearance, and the Canadian Civil Liberties Association for bringing him to testify at the inquest.  The jury also seemed particularly interested in Prof. Coyle’s testimony, and questioned him for two hours.

“The impact of Professor Coyle’s testimony was likely based on the fact that he could call up both legal principles, and personal experiences dealing with some of the most difficult prisoners and crisis situations in the UK.  He was able to provide story after story of successful programs, negotiations, options, and alternatives, all based on a professional and ethical sense of responsibility to the individuals in these institutions.  Professor Coyle also reminded the jury – who had sat through months of evidence on technical, administrative, and bureaucratic details – that the real issue at hand was the life and tragic death of a frightened young woman, human and vulnerable.”  (Noa Mendelsohn Aviv, Director, Equality Program, CCLA)

CCLA Joins Civil Society Across Globe to Release Report titled “Take back the streets”: Repression and criminalization of protest around the world

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In October, CCLA joined with nine other domestic civil liberties and human rights organizations from around the world to release a report, “Take back the streets”: Repression and criminalization of protest around the worldDownload the report here.

In June 2010, hundreds of thousands of Canadians took to the streets of Toronto to peacefully protest the G20 Summit, which was taking place behind a fortified fence that walled off much of the city’s downtown core.  On the Saturday evening during the Summit weekend, a senior Toronto Police Commander sent out an order – “take back the streets.” Within a span of 36 hours, over 1,000 people – peaceful protesters, journalists, human rights monitors and downtown residents – were arrested and placed in detention.

The title of the publication is taken from that initial police order.  It illustrates a concerning pattern of government conduct: the tendency to transform individuals exercising a fundamental democratic right – the right to protest – into a perceived threat that requires a forceful government response.  The nine case studies detailed in the report, each written by a different domestic civil liberties and human rights organization, provide contemporary examples of different governments’ reactions to peaceful protests.  They document instances of unnecessary legal restrictions, discriminatory responses, criminalization of leaders, and unjustifiable – at times deadly – force.

The cases, originating from Argentina, Canada, Egypt, Israel and the Occupied Territories, Kenya, Hungary, South Africa, the United Kingdom, and the United States, each present a unique state reaction in a unique domestic context.  They relate instances of excessive use of force resulting in injury and death, discriminatory treatment, criminalization of social leaders, and suppression of democratic rights through law, regulation and bureaucratic processes. And despite the fact that all the cases come from different countries, with different substantive debates and different social contexts, a number of common threads are identifiable.

Further, all the cases presented show the integral role played by civil society organizations in protecting these fundamental democratic rights. Each organization that contributed to the publication recognizes that a democratic society must not only tolerate, but actively facilitate, social participation and protest. And each organization actively operates on the premise that, no matter the underlying cause or issue, individuals’ and groups’ right to protest must be protected. Dissenting voices must be heard. And they must be given the space – both legal and physical – to do so.

CCLET and TVO Parents present Civics For Kids

 

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The Canadian Civil Liberties Education Trust (CCLET) has teamed up with TVO Parents to create Civics for Kids, scenarios that ask children to think critically about rights and freedoms. Each month, we post a short story with corresponding questions that have been developed for primary and elementary school children.  Each story focuses on a specific right or freedom. We invite parents and educators to take a few minutes out of their day to tell their kids the story and ask them the questions.  The only requirement is openness to everyone’s ideas.  There are no right answers!

In past months, Civics for Kids has covered voting rights, freedom of expression, freedom of religion and many other important and engaging topics.  This month we tackle unreasonable search and seizure with a story about a school principal who wants to go through her students’ backpacks.  Should the students let her do it?  Does it matter why she wants to look?

Browse through the Civics for Kids page.  Tell your kids the stories.  Then encourage them to think critically about their rights and the rights of others.  After all, our rights and freedoms depend upon people knowing they hold them, understanding what they mean, and challenging injustice.

CCLA to Intervene in Hassan Diab Case in Ontario Court of Appeal

We have written here before about the case of Hassan Diab, the Ottawa professor that France seeks extradited to face terrorism charges related to a 1980 synagogue bombing in Paris.  The evidence on which France bases its case has been described as problematic.  CCLA will intervene in the Ontario Court of Appeal to argue that Supreme Court of Canada jurisprudence requires the extradition judge to engage in a limited weighing of evidence to assess the sufficiency of evidence for committal to extradition.  Anything less, we will argue, would violate Section 7 of the Canadian Charter of Rights and Freedoms.  Our concern as always is to ensure that innocent persons are not wrongfully convicted, and that accused persons are afforded all fair trial and due process protections.  CCLA will also argue that Section 7 is violated if individuals are extradited to States where trials will be held on the basis of unsourced information treated as evidence and/or information procured from torture.

CCLA will be represented by Anil Kapoor of Kapoor Barristers – an expert criminal and constitutional lawyer who has frequently acted as pro bono counsel for CCLA and whom we spotlight this month, below.

Spotlight on Anil Kapoor

This month we express our gratitude to Anil Kapoor of Kapoor Barristers – an expert in criminal law and national security issues – who has represented CCLA on important national security cases in the Supreme Court of Canada.

Anil Kapoor was called to the bar in 1988. He practices criminal law at the trial and appellate levels, as well as regulatory law in the area of professional discipline, both defending and prosecuting. He appears regularly before the Supreme Court of Canada, as well as Courts of Appeal in Ontario, British Columbia, Alberta and Saskatchewan. In 2006, he was appointed Commission Counsel to the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (the Air India Public Inquiry). In 2008, he was appointed by the Minister of Justice (Canada) to the roster of security cleared Special Advocates to conduct National Security litigation.

In 2010, Mr. Kapoor was appointed to serve on the Prime Minister’s Advisory Council on National Security. Mr. Kapoor is an Adjunct Professor at Osgoode Hall Law School where he has taught in both the J.D. and L.L.M. programs. He is a regular speaker at continuing legal education seminars throughout Canada, has been a guest lecturer at Oxford University, and has spoken at various conferences in the United Kingdom on security matters. Mr. Kapoor authored Kapoor’s Criminal Appeals Review, a Lexis/Nexis Publication, from 1999 to 2005, and continues to publish extensively.

In 2011 Mr. Kapoor was elected to the Board of Directors of the Advocates Society, a professional organization dedicated to promoting excellence in advocacy.

Anil Kapoor and his firm, Kapoor Barristers, have worked with CCLA on the following national security and constitutional/criminal law cases:

Ongoing – The Attorney General ofCcanada (on behalf of the Republic of France) v. Hassan Naim Diab / The Minister of Justice of Canada v. Hassan Naim Diab. COA File No. C53812 & C55441

Ongoing – Matthew David Spencer v. Her Majesty the Queen. SCC File No. 34644

October 11, 2013 – The Minister of Citizenship and Immigration andthe Minister of Public Safety and Emergency Preparedness v. Mohamed Harkat. SCC File No: 34884

December 14, 2012 – Piratheepan Nadarajah, Suresh Sriskandarajah and Mohammad Momin Khawaja v. United States of America, Minister of Justice, Attorney General of Canada and Her Majesty the Queen. SCC File No.  34009 / 34013 / 34103

October 26, 2011 – R v. Ross Barros. SCC File No.  33727

May 31, 2011 – David Ward and Douglas Cuttell v. Her Majesty the Queen. COA File No. C50206 & C52091

February 10, 2011R v. Fahim Ahmad, Zakaria Amara, Asad Ansari, Shareef Adelhaleem, Mohammed Dirie, Jahmaal James, Amin Durrani, Steven Chand, Saad Khalid and Saad Gaya. SCC File No. 33066

 

CCLA is extremely grateful to Mr Kapoor for the pro bono contribution of his expertise and superb advocacy on behalf of the Assocation over the past years – thank you Anil!