Court Cases

CCLA at the Supreme Court: The Worst Carding Case…

Noa Mendelsohn Aviv
Director of Equality Program
mendelsohnaviv@ccla.org

 

 

 

 

On Friday May 31st, the Supreme Court of Canada is going to release its decision in a case involving 4 young black men and one young Asian man carded in a private backyard!

“Carding” and “street checks” are just some of the terms used to describe the practice by certain police officers and police services of approaching, stopping and questioning people on the street (usually racialized young men) for no lawful purpose, asking them personal information, demanding to see ID, and then entering all this information into a police “street check” database.

In the case of R v Le which is being decided on May 31st, the police went even further when they walked, uninvited, into a private backyard and began to ask questions of 5 young racialized men who were in the yard and doing nothing wrong according to the police officers’ own testimony.

The officers tried to claim at trial that they felt justified because they saw no gate on the yard (the Ontario Court of Appeal fortunately did not accept this justification).  Or, as we suspect, the problem is systemic or actual racism, in a criminal justice system that allows police to approach and question young men as a matter of routine, where there are inadequate rules prohibiting police from treating innocent people as suspects and violating their rights. Perhaps it simply never occurred to the police not to, even as they entered private property.

Either way, the Canadian Civil Liberties Association went to the Supreme Court of Canada to condemn the officers’ conduct in the case. CCLA has been advocating for years against carding, and demanding clear rules that prevent police from approaching, stopping and questioning individuals who are not suspected of being connected with a crime.

CCLA intervened in the R v Le case to address the importance of privacy, the reasonable expectation of privacy in a friend’s backyard, and the right of all people to privacy, including those who are low-income and racialized. CCLA also intervened to ask the court to establish in clear terms which police stops must be recognized as arbitrary detention. CCLA explained that even a brief encounter with police can be intimidating, humiliating and frightening – as most people who have been pulled over can confirm. This is only exacerbated when the violation includes trespass onto personal property – sending a strong message that the officers may not be concerned about the law or individual rights. And a police encounter like this is particularly concerning when the individuals doing nothing wrong are racialized – and the stop smacks of discrimination.

CCLA was represented by pro bono counsel Danielle Glatt (Paliare Roland) and Kate Robertson (Markson Law).

On Friday May 31st, the Court has an opportunity to create better privacy protections, and better protections against carding.

CCLA awaits the decision and is available for comment any time after its release:  media@ccla.org.

 

You can read our factum here and our earlier summary of the case can be read here.

Immigration and Refugees

What Do Justin Trudeau and Stephen Harper Have in…

Noa Mendelsohn Aviv
Director of Equality Program
mendelsohnaviv@ccla.org

 

 

 

 

The federal government is trying to roll back significant protections for refugees in an underhanded and undemocratic move.  For so many of us in Canada, we know that immigration is our strength, and protecting refugees is a source of pride. We also must defend refugee rights under our Charter and international law.

The new omnibus Budget Bill (Bill C-97) includes measures that would deprive asylum seekers of a full and fair independent hearing in Canada if they previously filed a claim in the US or certain other countries.

Before critical changes are made and fundamental rights removed, changes to our refugee laws need careful attention, critical consideration, and open discussion by members of Parliament and by the public. This discussion will almost certainly not happen if these changes are included in a Budget bill rammed through the Finance Committee.

A budget bill is supposed to focus on, well, the budget. Looking at Canada’s income and spending over the next year is an enormous task – but it is something the Finance Committee knows how to do. The Finance Committee has neither the time nor the expertise to properly consider and debate what changes to the refugee laws will do to people in Canada seeking asylum, and what harms may befall them if the government removes them. So who does have the time and expertise?

In a free and democratic country like Canada, each of us has the right to vote for our representative to propose, debate, and create (or object to) laws, to look closely at each one, and to hold the government to account.  Therefore, many politicians, including Stephen Harper and Justin Trudeau, have both at some point voiced their strong objection to omnibus budget bills. 

For the same reason, CCLA objects to steamrolling changes to refugee laws through an omnibus budget bill. It is undemocratic and unCanadian – and far more importantly, the consequences for people fleeing persecution, torture, or even death could be horrifying.

CCLA has joined forces with CARL, CCR, BCCLA and Amnesty International to oppose these measures. Please help us – and help demand, at a very minimum, that any changes to Canada’s refugee laws must undergo careful consideration by a Parliamentary committee with the appropriate time and expertise. In just 30 seconds, by using this link you can easily add your name to those opposing this measure – and a letter will be sent to the Prime Minister and other relevant members of Parliament.

 

If you want to learn more about CCLA’s other campaigns, challenges and initiatives, click here.

Also, contribute to CCLA so that we can continue to stand up for the rights and freedoms of all people in Canada, click here.

Court Cases

Sex Offender Registries That Discriminate Against Those With Mental…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

Ontario’s highest court handed advocates a significant victory today, finding that the sex offender registration schemes in both Ontario and Canada discriminate against individuals with a mental illness.

In G. v. Ontario (Attorney General), the Ontario Court of Appeal was asked to look at the provincial and federal sex offender registries and consider whether it is appropriate that those registries include individuals found “not criminally responsible” of sexual offences as a result of a mental disorder (“NCR accused”). The evidence before the Court showed that while a person found guilty of a sexual offence has multiple “exit ramps” to avoid registration or get off the sex offender registry, it is much more difficult for an NCR accused to do so – they have far fewer “exit ramps” available to them.

The facts in the case were compelling: the appellant, G, was convicted of two sexual offences in respect of his wife at the time. The charges arose out of incidents that occurred when G was in a manic state brought on by bipolar affective disorder. Prior to the incidents, G had no history of mental illness and no criminal record, and while his wife involved the police at the time to ensure her safety, she was generally supportive of G and understood his acts were a result of his mental illness. After the Court’s finding that G was not criminally responsible, he lived in the community under terms dictated by the Ontario Review Board (ORB). He was later absolutely discharged and had been continuing to receive treatment and take medication. As the Court of Appeal noted “The appellant has not been under the authority of the ORB for 15 years. There is no suggestion that, in those 15 years, the appellant has engaged in criminal activity, much less criminal activity involving sexual misconduct. By all accounts, he lives a law-abiding and productive life.” For the appellant, his status on the sex offender registries was a source of significant stress and concern.

In 1991, Canada’s Parliament reformed our criminal law to recognize the unique needs and circumstances of people who commit criminal offences as a result of a mental disorder. The law replaced indefinite detention with treatment and established a system of provincial expert review boards to consider the appropriate disposition for an NCR accused, including whether and when they could be “absolutely discharged” and no longer under the criminal law’s jurisdiction. The approach recognizes that those who commit offences as a result of mental illness are not morally culpable and that their need for treatment must figure prominently in any decisions that affect their liberty. Several years later in 2000, Ontario’s government enacted its sex offender registration law (Christopher’s Law) and the federal government followed suit in 2004. Both of these laws require registration of individuals who have committed certain sexual offences, regardless of whether they were convicted after being found guilty, or found not criminally responsible. Significantly, those found guilty may be absolutely discharged by the sentencing judge, in which case there is no conviction and no requirement to register (the first “exit ramp”). Further, even those convicted may be able to apply for a pardon or record suspension and get off the registry earlier than would otherwise be possible (the second “exit ramp”). Neither of these avenues is open to an NCR accused. In fact, even after an NCR accused has been absolutely discharged by the Review Board, they may remain on the registry for many years, or for the rest of their lives. The Appellant, CCLA and other interveners argued in this case that this amounts to discrimination and should be struck down. Fortunately, the Court of Appeal agreed.  

The Court recognized that despite the important goals of sex offender registration legislation, there was no explanation for why those found guilty fared better than those found NCR. The key difference between the two groups was a mental illness or disability, a prohibited ground of discrimination under s. 15(1) of the Charter. As a result, the Court found that the registration schemes are unconstitutional as applied to NCR accused who have been absolutely discharged by a Review Board. However, in what has become a far too common practice, the Court suspended the declaration of invalidity for twelve months to allow the two governments to determine how to address the issue. CCLA will keep monitoring this issue.   

 

You can read ONCA’s decision here and our factum here

Court Cases

PRESS RELEASE – APPEAL TO BILL 21 DECISION

UPDATE: Tuesday July 23, 2019

La version française suit.

– For Immediate Release –

CIVIL LIBERTIES GROUPS SEEK LEAVE TO APPEAL BILL 21 DECISION

NCCM & CCLA file an application for leave to appeal Justice Yergeau’s decision

(Montreal – June 23, 2019)

The National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA) have filed an application for leave (attached) to appeal the Honourable Justice Yergeau’s decision in Hak c. Procureure générale du Québec, 2019 QCCS 2989. P

The NCCM & CCLA submit that leave should be granted because, in their estimation, the decision contains a number of important errors of law.

The new application asks the Quebec Court of Appeal to take another look at the decision that denied a request to suspend operation of the Act respecting the laicity of the State (Bill 21).

The “Laicity” Act bans people who wear religious symbols from holding a variety of public sector jobs, including as teachers, police officers and prosecutors. The law will most seriously curtail the freedoms of Muslim women who wear the hijab, Jews who wear the kippa, and Sikhs who wear turbans.

The NCCM and CCLA filed a constitutional challenge of the Act hours after it was enacted, and with it, asked the court for an urgent interim measure – to suspend the Act’s operation.

“We promised Quebecers and Canadians that we would stand up for their rights and we intend to do exactly that,” says NCCM Executive Director Mustafa Farooq, “We believe, as we always have, that this piece of legislation has no place being on the books in 2019. This is a historic moment as Quebecers of all faiths and backgrounds come together to oppose an unjust law, and stand with us in filing our application for leave.”

“It is not acceptable to hang signs telling certain people they are not welcome in stores, beaches, parks, or workplaces. A law that excludes people because of who they are and how they dress is both absurd and abhorrent – it has no place in a society that values justice, equality and freedom. This is why we fight,” says Noa Mendelsohn Aviv, Equality Program Director at the Canadian Civil Liberties Association.

The appellants are represented by Catherine McKenzie and Olga Redko of the distinguished litigation firm IMK LLP of Montreal.

The NCCM is an independent, non-partisan and non-profit organization that is a leading voice for civic engagement and the promotion of human rights.

The Canadian Civil Liberties Association (CCLA) is a national, non-partisan, non-profit organization that works to protect the rights and freedoms of all people in Canada.

CONTACTS:

English:

Mustafa Farooq, NCCM Executive Director, mfarooq@nccm.ca or 613-406-2525

Noa Mendelsohn Aviv, CCLA Equality Program Director, mendelsohnaviv@ccla.org, 647-780-9802

French:

Bochra Manai, NCCM Quebec Public Affairs Spokesperson, bmanai@nccm.ca or +1 (438) 932-7197

Sarah Abou-Bakr, NCCM Quebec Community Relations Coordinator, saboubakr@nccm.ca or 613-254-9704 Ext 236

– Pour diffusion immédiate –

GROUPES DE LIBERTÉS CIVILES DEMANDENT À LA COUR DE RÉVISER SA DÉCISION SUR LE PROJET DE LOI 21

Le CNMC et l’ACLC soumettent une demande d’autorisation d’en appeler de la décision du Juge Yergeau.

(Montréal – 23 juin 2019)

Le Conseil national des canadiens musulmans (CNMC) et l’Association canadienne des libertés civiles (ACLC) ont aujourd’hui soumis une demande d’autorisation d’en appeler de la décision de l’Honorable Juge Yergeau dans l’affaire Hak c Procureure générale du Québec, 2019 QCCS 2989 (ci-jointe).

Le CNMC et l’ACLC soumettent que l’autorisation d’en appeler devrait leur être octroyée puisque la décision initiale contient plusieurs erreurs importantes de droit.

La nouvelle demande vise à ce que la Cour d’appel du Québec révise la décision rejetant la demande de suspendre l’application la Loi sur la laïcité de l’État (projet de loi 21).

La Loi sur la « laïcité » empêche les individus qui portent un symbole religieux d’avoir certains postes dans le secteur public, incluant celui d’enseignant, de policier et de procureur. Cette loi va significativement restreindre les droits et libertés d’individus, notamment des femmes musulmanes qui portent le hijab, des juifs qui portent la kippa, et des sikhs qui portent un turban.

Le CNMC et l’ACLC ont contesté la validité de la nouvelle loi au lendemain de son adoption, au motif qu’elle est inconstitutionnelle. Les organisations ont simultanément invoqué une mesure provisoire d’urgence : la suspension de l’application de la loi.

« Nous avons promis aux Québécois et aux Canadiens que nous élèverions notre voix pour protéger leurs droits et libertés. C’est exactement ce que nous faisons. »  dit Mustafa Farooq, Directeur exécutif du CNMC. « Nous croyons, et nous avons toujours cru, que cette loi n’a pas sa place en 2019. C’est un moment historique que de voir les Québécois de toutes les confessions s’allier pour s’opposer à une loi injuste et nous appuyer dans notre demande d’autorisation pour en appeler de la décision. »

« Il n’est pas acceptable d’afficher des signes interdisant l’accès à certaines personnes à des boutiques, des plages, des parcs, ou des milieux professionnels. Une loi qui exclut des individus en raison de leur identité et de leur façon de s’habillant est à la fois absurde et aberrante; une loi du genre n’a pas de place dans une société qui promeut la justice, l’égalité et la liberté. C’est pour cela que nous nous battons. » dit Noa Mendelsohn Aviv, Directrice du Programme égalité de l’ACLC.

Les demandeurs sont représentés par Catherine McKenzie et Olga Redko de la firme distinguée IMK LLP de Montréal.

Le CNMC est une organisation nationale indépendante non-partisane à but non-lucratif qui est une voix éminente pour l’engagement civique et la promotion des droits de la personne.

L’Association canadienne des libertés civiles est une organisation nationale non-partisane à but non-lucratif qui travaille à protéger les droits et libertés de tous les individus au Canada.

CONTACTS:

Anglais:

Mustafa Farooq, Directeur exécutif du CNMC, mfarooq@nccm.ca ou 613-406-2525

Noa Mendelsohn Aviv, Directrice du Programme égalité de l’ACLC, mendelsohnaviv@ccla.org, 647-780-9802

 

Français:

Bochra Manai, CNMC Quebec, Porte-paroles de affaires publiques, bmanai@nccm.ca ou +1 (438) 932-7197

Sarah Abou-Bakr, CNMC Quebec, Coordinatrice des relations communautaires, saboubakr@nccm.ca ou 613-254-9704 Ext 236

Court Cases

End to Solitary Confinement as we know it

UPDATE: Thursday, March 28, 2019

In an extraordinary decision, the Ontario Court of Appeal has ordered an end to prolonged solitary confinement in Canada’s prisons – in 15 days. Prolonged solitary is the confinement of a person for over 15 consecutive days in extreme isolation. In effect, the Court has ordered an end to the practice of housing inmates in these horrendous conditions. The decision states that solitary is capable of producing serious permanent negative mental health effects including altered brain activity, depression and suicidal ideation, confusion and hallucinations, paranoia, self-mutilation, and declines in mental functioning. The Court concludes that holding people in solitary for over 15 days “outrages standards of decency and amounts to cruel and unusual treatment,” and is unconstitutional.

This decision will come into effect in 15 days. This is an unusual remedy. Most constitutional victories nonetheless grant the government many months to create alternative laws. Here, however, the Court has put an end to the practice of prolonged solitary almost immediately.

Read the court’s decision here.


Monday, Nov. 19, 2018

For immediate release — TORONTO —
The federal government has failed to meet its Ontario court-imposed deadline of tomorrow to fix its solitary confinement laws.  So it has to beg the Ontario Court of Appeal for an extension this week.

“The feds have really bungled it this time,” said Michael Bryant, Executive Director of the Canadian Civil Liberties Association. “Not only did they break their election campaign promise to end indefinite solitary confinement, but now they broke their promise to Ontario courts to fix a law by tomorrow that the Ontario Superior Court found to be unconstitutional a year ago. The court gave them a year to fix their broken laws, and they’ve failed.”

Rights groups who have won court challenges against indefinite solitary confinement were in courts last week in BC and this week in Ontario, fighting the Crown’s botched plans to fix the law of solitary confinement in Canada.  Tomorrow (11/20/18) at 10 a.m. the Canadian Civil Liberties Association (CCLA) will argue before the Ontario Court of Appeal that the federal government has run out of time, and CCLA will also appeal various findings of the Ontario Superior Court from 2017.

Courts in Ontario and British Columbia concluded that Canada’s existing law on solitary confinement violates s.7 of the Charter of Rights and Freedoms as it places prisoners at increased risk of self-harm and suicide and causes psychological and physical harm. The B.C. Court further held that that the laws are unconstitutional because they discriminate against the mentally ill and disabled, and against Indigenous prisoners. Each court suspended the effect of its judgment for a year to give Parliament time to comply.

But they didn’t. The feds “arrogantly bided their time, introducing a new bill a month before the deadline, knowing full well that Parliament couldn’t pass it in time. It’s maybe even too late to pass it before the next election,” said Bryant.

The federal Crown is asking the Court tomorrow to extend the one-year suspension of the 2017 order for a further seven months to permit Parliament to consider legislation “that has no prospect of addressing the Constitutional deficiency,” CCLA argues in its written brief to the Court, adding: “Canada makes this request without any evidence to explain either its delay in taking action or its failure to implement any interim measures to mitigate its continuing Charter breach.”

Last week, the BC Court of Appeal had the federal Crown squirming in its justification for failing to meet the deadline. Tomorrow, it’s their turn to face the Ontario Court of Appeal. Representing CCLA pro bono is Jonathan Lisus and Michael Rosenberg (details below).  

-30-

Links: Ontario Superior Court of Justice ruling; B.C. Supreme Court ruling

Read CCLA’s Factum here.

Contact:

Michael Bryant
Executive Director and General Counsel
CCLA: 416-230-8658

Counsel:  

McCarthy Tétrault LLP
Tel: 416-362-1812
Michael Rosenberg
mrosenberg@mccarthy.ca

Lax O’Sullivan Lisus Gottlieb LLP
Tel: 416-598-1744

Jonathan C. Lisus
jlisus@counsel-toronto.com

 

MATERIALS

June 13, 2019 CCLA’s Response to Canada’s Motion for an Interim Stay

June 7, 2019 ONCA Order Regarding Extension of Suspension Declaration

March 28, 2019 Ontario Court of Appeal ruling

April 6, 2018 CCLA’s Factum

December 18, 2017 Ontario Superior Court of Justice ruling

 

Previous Updates

April 29, 2019 Solitary Confinement is No Joking Matter – And the Courts Are Not Amused – Again! Here are Where Things Stand

January 17, 2018 Legal Fight Against Solitary Confinement Continues 

December 17, 2018 CCLA Wins Important Battle Against Feds on Solitary Confinement 

December 18, 2017 Court Strikes Down Solitary Confinement Regime in Response to CCLA’s Challenge