News and Analysis

Premier Ford’s back-to-work legislation will violate civil liberties, hurt…

— FOR IMMEDIATE RELEASE —

TORONTO, ON –The Canadian Civil Liberties Association and the Canadian Federation of Students-Ontario have joined with striking workers at York University to voice their opposition to the new Conservative government’s “back-to-work” legislation.

“Our members went on strike more than four months ago because we were experiencing firsthand how the quality of education at York was degenerating. We believed York would bargain with us to help find solutions to improve the quality of education we provide, but they have essentially refused,” said Devin Lefebvre, Chairperson of CUPE 3903. “This legislation gives York exactly what they’ve wanted from the beginning and it absolves them from having to take responsibility for the quality of education the university provides. This is not good for students.”

“The right to meaningful collective bargaining and the right to strike are not political punching bags. They’re constitutional rights,” said Michael Bryant, Executive Director of the Canadian Civil Liberties Association (CCLA). “These rights are protected by the Canadian Charter of Rights and Freedoms to ensure dignity and fairness for workers.  As the federal government found out with the Canada Post case, back-to-work legislation will be closely monitored by the courts.”

Compared to all other provinces, Ontario universities receive the lowest per student government funding. Chronic underfunding of colleges and universities has led to a significant increase in the use of precarious labour on Ontario campuses. Sixty percent of the teaching at York is now done by teaching assistants, graduate students and contract faculty – the members of CUPE 3903.

“Universities and colleges are not just institutions for learning, but are places of employment for thousands of workers,” said Nour Alideeb, Chairperson of the Canadian Federation of Students-Ontario. “Job security, adequate graduate funding and equity protections for the most vulnerable are fundamental to delivering high quality education. Protecting students means investing in education, not stripping away the rights of the workers that students depend on.”

“The Ford government’s disregard for workers’ rights and quality education is exposed in today’s ‘back-to-work’ legislation,” said Fred Hahn, President of CUPE Ontario. “These workers have been bravely fighting to improve the quality of education at York and will continue to do whatever they can to push for improvements, even if the legislation passes. The consequences of this reckless legislation will be felt in classrooms.”

CUPE 3903 represents more than 3,000 teaching assistants, contract faculty, graduate assistants and part-time librarians and archivists at York University. CUPE Ontario is the largest union in Ontario, representing more than 260,000 members across the province.

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Contact Information:
Emily Niles, CUPE Communications, 613-263-3628 (cell) or eniles@cupe.ca
Caroline Hill, Communications Officer, CCLA, 416-646-1404 or media@ccla.org

Press Conference Details:
When: Monday, July 16, 9:00am
Where: Queen’s Park Media Studio

Court Cases

Federal Court of Appeal Set a Disturbingly Low Bar…

On March 20, 2018, more than a year after hearing arguments in the matter of Schmidt v. Attorney General of Canada, the Federal Court of Appeal released its decision. The ruling affirms that the Minister of Justice only has to report to Parliament regarding inconsistencies between a proposed bill and the Charter of Rights and Freedoms when there is no credible argument in favour of the bill passing the Charter test. This low standard could explain why, in the 35 years since the advent of the Charter, not a single report has been made.

CCLA intervened in Schmidt, both at the Federal Court and in the Federal Court of Appeal, because we believe the Minister of Justice’s reporting duty should function to inform Parliament, and regular Canadians, of the degree to which proposed bills comply with the Charter. The rule of constitutionalism dictates that the government is duty-bound to draft legislation that respects the Charter. According to the legislation that is at issue in this case, the Minister is duty-bound to report when proposed legislation does not do so.

The Attorney General has argued that the Minister of Justice’s reporting duty serves a deterrent function, and is only exercised as a last resort: if the Minister has no confidence in the bill she is required to table, she must report as much to Parliament, and then resign. On this theory, the real vetting takes place prior to the Minister’s tabling the bill.

The Federal Court of Appeal’s decision is based on a determination that the current interpretation of the provisions is not only reasonable, but correct. The Court also goes to some lengths explaining the complexity of determining whether legislation is Charter-compliant, suggesting that since it will generally not be possible to say with certainty that legislation complies with the Charter, the standard should be understood as an obligation to report when there is no argument in support of compliance.

CCLA is disappointed with the Court’s decision and continues to believe in the need for reform that will allow parliamentarians to be able to truly and meaningfully assess the constitutional implications of the laws they are passing. While the government has proposed an amendment to the Department of Justice Act that would require the Minister to issue a Charter statement in relation to all government bills tabled in Parliament, we remain concerned that the amendment does not go far enough. It would allow for a relatively superficial statement on Charter compliance rather than putting forward in Parliament the kind of detailed analysis that is required to defend the constitutionality of legislation in our courts. For more information about CCLA’s proposals to improve our current system of legislative review, see www.ccla.org/charterfirst.

Federal Court of Appeal factum (jointly with BCCLA)

Federal Court of Appeal decision

CCLA in the News:

Lawyers Daily: Former federal justice lawyer Schmidt accuses department of ‘doublespeak’ after losing appeal

News and Analysis

CCLA Fights To Protect The Right to Vote

Today, CCLA is appearing before the Supreme Court in Frank v Canada to defend the fundamental right of all Canadian citizens to cast a ballot in a federal election.

The Frank case challenges provisions of the Canada Elections Act that prohibits certain non-resident Canadians citizens from voting in federal elections. CCLA has intervened in this important case to argue that the prohibition on voting is contrary to the value of equality that underlies the Charter right to vote. The legislation in this case create a regime under which an entire class of approximately 1.4 million Canadians is treated differently and unfairly based on a personal characteristic — place of residence. The prohibition on voting deprives non-resident Canadians of their personal autonomy and self-determination, and creates a category of “second class” citizens.  A difference in place of residence simply cannot justify depriving individuals of their right to be full and equal Canadian citizens.

Counsel in this case is Mark Freiman and Jameel Madhany (Lerners).

Read our factum here.

 

Mark Freiman and Jameel Madhany at the Supreme Court of Canada on March 21, 2018
Corrections and Prisons

Transforming Corrections in Ontario

On February 20, 2018, Ontario’s Minister of Community Safety and Correctional Services introduced the Correctional Services Transformation Act, 2018 in the legislature. The bill of the province’s law on corrections and its preamble recognizes the need to treat inmates with dignity and ensure that their rights under the Canadian Charter of Rights and Freedoms and Ontario’s Human Rights Code are respected. It seeks to, among other things, put in place minimum living conditions for inmates, create an effective inmate complaints mechanism, and limit – and in some cases prohibit – the use of solitary confinement (referred to in the bill as ‘segregation’). However, the law alone is not sufficient to make the changes that are required for a humane and effective correctional system. The legal foundation that the law would establish is crucial, but many of the operational details will not be known until regulations, policies and procedures are developed and meaningfully implemented by the Ministry and correctional staff. For example, the bill proposes the use of Independent Review Panels to conduct hearings to review segregation decisions at regular intervals, but it remains to be seen how these panels will be established and resourced, and whether and how their independence can be assured. Moreover, the changes proposed by the bill required substantial financial and human resources. It remains to be seen whether the government’s budget commitments will finance the legislative goal.

News and Analysis

Ontario’s policing reform legislation can still be improved

UPDATE: Ontario’s policing reform legislation was passed on March 9, 2018. Bill 175, as amended by the committee, and as passed on Third Reading can be found here.

Yesterday, Ontario’s provincial government concluded its Committee hearings on the Safer Ontario Act, legislation that would bring significant changes to Ontario’s system of police oversight and accountability. The CCLA appeared before the Committee to recommend several necessary amendments to the proposed legislation.

The Canadian Civilian Liberties Association has long advocated for policing reform in Ontario. For decades, policing in the province has been by plagued by accountability, oversight, and transparency deficits. A legislative overhaul of Ontario’s antiquated Police Services Act is necessary to begin to remedy these deficits.

The Safer Ontario Act primarily attempts to bolster accountability, oversight, and transparency in Ontario by implementing the majority of Justice Tulloch’s recommendations in his Report of the Independent Police Oversight Review. However, Justice Tulloch’s recommendations arose out of public consultations that revealed alarming levels of distrust of Ontario’s police services and their oversight and accountability bodies, including a widespread concern regarding systemic discrimination in Ontario policing. While many of the Safer Ontario Act’s proposed reforms could help tackle this pervasive problem of distrust, substantial efforts will be needed to ensure that any new oversight and accountability bodies are truly independent of the police services which they oversee. Substantial efforts will also be needed to ensure that any new oversight and accountability bodies are adequately funded, and are willing to use the powers they may be given.

Chief among our recommendations is that the government’s proposed legislation should be amended to provide more robust powers to civilian authorities who are charged with overseeing police services. Public officials and oversight boards must play an active, informed role on issues that have a significant impact on residents’ Charter and Code-protected rights, such as the practice of carding or the general issue of racial or social profiling. As we argue in our submissions, civilian authorities are often unnecessarily hindered in their oversight and accountability obligations by police services who maintain that attempts to address these issues would amount to interference with their operational independence. Accordingly, we recommend several amendments to strengthen and clarify the power and responsibility of civilian authorities to make and implement policing policies and directives, as well as several amendments that would require policies and directives to be publicly available information.

Click here to read the transcript of our evidence

Click here to read our written submissions

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