e-Bulletin August 2010

August 19, 2010

Dear friends of CCLA,

In this issue, you’ll read about some of the interesting cases that we are currently monitoring. I think you’ll find the summary of the Crookes case, which deals with the legal liability of Internet hyperlinks, particularly interesting and relevant. In our opinion, Dr. Diab’s extradition case is also a critical one to watch, as there could be far reaching implications for other fellow Canadians facing charges abroad.

I’m also very pleased to announced that registration for our “Who Belongs?” conference is now open; I hope to see many of you there.

Thank you for support,
Nathalie Des Rosiers
General Counsel

In this issue:

  • Who Belongs?
  • Crookes v. Newton: Liability at the click of a mouse
  • CCLA Monitoring the Extradition Proceedings of Canadian Citizen Hassan Diab
  • Support Civil Liberties: Have a Party

Who Belongs? Rights, Benefits, Obligations and Immigration Status

Registration is now open for the CCLA’s conference on discrimination, citizenship and immigration status.

The conference, hosted by the CCLA in conjunction with the David Asper Centre for Constitutional Rights, and the Maytree Foundation will be held September 23-25, 2010 at the University of Toronto’s Faculty of Law.

This multi-disciplinary event will look at issues of discrimination against immigrants in employment, political participation, and access to social programs and benefits. Confirmed speakers include experts from a variety of disciplines (click here to see the list of confirmed speakers.) This event will be of interest to members of the public as well as academics, lawyers and community advocates.

The conference is part of the CCLA’s larger project, funded in part by the Maytree Foundation, to examine discrimination against immigrants in Canadian society. More information about the conference, including a list of speakers, paper abstracts and a schedule is available on our website.

To register, please click here. We hope to see you there!

Crookes v. Newton: Liability at the click of a mouse

The law of defamation was initially developed centuries ago at a time when a world wide web of interconnected computers sharing information instantaneously would have simply defied imagination. This fall, however, the Supreme Court of Canada will decide how the centuries-old concept of publication applies to that archetype of the modern age: the Internet. Their answer will determine whether the Internet remains a free-wheeling marketplace of ideas or whether concerns over reputation will freeze out controversial speech. In the case of Crookes v. Newtwon, the Court will consider the practice of hyperlinking.

Hyperlinks – an embedded URL address that allows a user to move from one webpage to the next with a click of the mouse – are ubiquitous on the Internet. They underscore the fast-paced manner in which information is exchanged and consumed by users. Crookes raises the question of what happens when the webpage you hyperlinked to contains content that is defamatory to the reputation of a person or a corporation. Are you as responsible (and liable) for the defamatory content as would be the original publisher of the webpage?

The Appellant in Crookes says yes. But the case also raises other questions like what if you never knew the defamatory content existed when you created the hyperlink? What if the original publisher posted the defamatory content only after you created the hyperlink? What if the defamatory content existed on another webpage of the same website?

These questions are all up for debate in Crookes. Their potential to chill speech on the Internet, however, should be obvious. Most people will not be willing to search an entire website for defamatory content before hyperlinking to it. Even fewer people would be willing to constantly check back to a website after hyperlinking to it to ensure new defamatory content had not been posted.

If hyperlinking can lead to liability for defamation, most users will probably choose not to hyperlink at all rather than risk being sued. Such a development could threaten to strike out one of the defining characteristics of the Internet and slow down the free-wheeling exchange of opinion and ideas that take place on it.

The CCLA suggests that while the protection of reputations on the Internet is an important concern, imposing liability for simple hyperlinking goes too far and undermines freedom of expression.

The CCLA is applying for leave to intervene in the Crookes case before the Supreme Court. Stay tuned for more updates on this case and CCLA’s intervention in it.

CCLA Monitoring the Extradition Proceedings of Canadian Citizen Hassan Diab

France seeks the extradition of Ottawa professor Hassan Diab, on charges relating to the bombing of a French synagogue in 1980. The CCLA is concerned that the case against Dr. Diab may consist of ‘manifestly unreliably evidence’ such that Dr. Diab’s section 7 Charter rights to life, liberty and security of the person are at stake.

The charges are based on two “sources” — hotel registration records allegedly in Dr. Diab’s handwriting placing him near the scene of the crime, and “secret intelligence.”

Dr. Diab’s legal team introduced evidence of four leading handwriting experts arguing that the registration records are not Dr. Diab’s handwriting. However, French officials are not disclosing the ‘secret intelligence’ against Dr. Diab citing French national security concerns – accordingly, the Ontario judge, Dr. Diab and his lawyers, and even the Crown Attorney, are not privy to this French ‘secret intelligence’.

Dr. Diab is fighting the extradition request. The Supreme Court of Canada has set out the test for extradition: the evidence must be sufficient for a properly instructed jury to return a verdict of guilty. In other words, if the evidence is “so manifestly unreliable that it would be unsafe to rest a verdict on it”, or if the “judge on an extradition hearing concludes that the evidence is manifestly unreliable, the judge should not order extradition.”

The Ontario Court must distinguish between ‘secret intelligence’ – which obviously cannot be properly scrutinized- and ‘evidence’, which can be properly scrutinized. If there is not sufficient evidence to render a guilty verdict in Canada, then according to Canadian law Dr. Diab should not be extradited. His extradition hearing will be held in November 2010 in Ontario Superior Court.

CCLA is concerned that the extradition in this case will undermine the test for extradition and lead to unfair process and injustices for people suspected of crimes by foreign states.

Support Civil Liberties: Have a Party!

In early July, in the immediate aftermath of the G20, a CCLA supporter in Ottawa organized a barbecue, inviting friends, family and colleagues to share an evening of food, drinks and civil rights awareness. Micah Melnyk said he used the opportunity to talk about CCLA’s G20 Interim Report, and to raise funds for CCLA by simply passing a donation box around during the event.

Micah Melnyk’s successful fundraiser in Ottawa

ottawapartyAs the summer days are slowly beginning to wane, we invite you, our friends and supporters, to host your own civil rights party to raise awareness and funds for the important work of CCLA.

We are happy to provide you with materials to share with your guests: brochures, stickers, etc.

Please feel free to contact us for more details and find out how you can host your own civil rights party!