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< class="what-entry-title">There and Back Again: The Fight Over Canada’s Sex Work Laws Returns to Court>
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Photo by: Jared, Migrant Workers Alliance for Change

In 2013, the Supreme Court of Canada in the Bedford decision[1] ruled that three provisions in the Criminal Code related to sex work (keeping a common “bawdy house”, living on the avails, and communicating in a public place) violated the section 7 Charter rights to security of the person set out in the Charter of Rights and Freedoms. For the Supreme Court, the key point was that the laws did not merely set out conditions for those involved in sex work, but that they made things worse – by preventing individuals from taking steps to protect themselves and heightening the danger they faced. While acknowledging that Parliament may regulate sex work, the Supreme Court ruled that it cannot do so in a manner that violates the constitutional rights of sex workers. It declared the provisions unconstitutional and held that it was up to Parliament to go back to the drawing board.

Parliament responded to Bedford by enacting the Protection of Communities and Exploited Persons Act (PCEPA) in 2014. At the time, the BCCLA wrote that the law was flawed, not only because it recreated the dangerous conditions that made the previous provisions unconstitutional in the first place, but also because it was premised on targeting aspects of sex work (exploitation, sexual assault, involvement of minors) that would be more appropriately addressed through existing Criminal Code provisions. We warned that PCEPA would almost certainly be put before the courts to guarantee the rights and safety of marginalized and vulnerable individuals, emphasizing that “sex work in itself is neither deserving of condemnation nor inherently harmful”.

Between October 3 and 7, 2022, Canada’s sex work regime was challenged before the Ontario Superior Court of Justice in Canadian Alliance for Sex Work Law Reform v Canada. In support of PCEPA, the government argues that coercion, exploitation, and violence is inherent in sex work and that the legislation addresses systemic inequalities by targeting purchasers and third parties.

On the other hand, the applicants – a coalition of sex worker-led organizations[2] and current and former sex workers across Canada – argue that PCEPA has failed to meet its stated objectives and instead, has worsened the harms faced by sex workers. They provided court-tested evidence to demonstrate that PCEPA:

  • makes it more difficult for sex workers to screen clients;
  • undermines their ability to negotiate services;
  • increases the risk of eviction from safer indoor locations;
  • constrains access to advertising and third-party supports;
  • increases their vulnerability to police harassment and criminalization; and
  • diminishes the likelihood of reporting violence to the police.

The applicants asked the court to look beyond any lofty objectives and inquire into the actual and harmful realities of the PCEPA regime. They assert that the on-the-ground impacts of the laws do not accord with the constitutional guideposts set in Bedford. Notably, they are not the only ones to do so: the House Standing Committee on Justice and Human Rights recently reviewed the regime and recommended that “the Government of Canada recognize that protecting the health and safety of those involved in sex work is made more difficult by the framework set by the [PCEPA] and acknowledge that, in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous.”[3]

The BCCLA’s Intervention in Canadian Alliance for Sex Work Law Reform

Against this backdrop, the BCCLA intervened in this case to argue that the section 7 analysis should be informed by the substantive equality considerations set out in Fraser,[4] a Supreme Court decision concerning section 15 Charter rights. Such an approach recognizes that Charter rights are not isolated compartments, but may instead influence and support each other to encourage more complex and nuanced understandings of the law.

The Supreme Court of Canada’s understanding of equality has evolved away from a formal theory of equality, focused on ensuring that ‘similarly situated be similarly treated’, towards substantive equality, a philosophical theory focused on the impact of laws on vulnerable claimants.

In Fraser, the Court wrote that the substantive equality analysis involves a consideration of (1) the full context of the group’s situation; (2) the actual impact of the law on that situation; and (3) the persistent systemic disadvantages [that] have operated to limit the opportunities available to that group’s members.[5]

The BCCLA argued that this analytical framework should inform an assessment of section 7 Charter rights, where the court must determine whether the challenged laws have deprived the claimants of the right to life, liberty, or security of the person, contrary to the principles of fundamental justice. 

While the government argues that the current laws attempt to balance the “competing interests” of those who are coerced into sex work and those who freely choose to do so, the BCCLA in its oral submissions argued that a substantive equality approach rejects such narrow views and avoids stereotyping and categorizing sex workers into false dichotomies.

Instead, the BCCLA urged the court to adopt a substantive equality lens to recognize the full breadth of intersectional realities and overlapping harms experienced by sex workers who are Indigenous, Black, racialized, migrant, trans, living with disabilities, and living in poverty. In the BCCLA’s view, the government’s approach subverts the substantive equality analysis by failing to recognize how sex workers are impacted by systemic racism, sexism, and classism, and how the law itself only serves to reinforce, rather than remedy, those structural inequalities.

According to Akosua Matthews, counsel for the BCCLA, the importance of this case is clear: “The Ontario court must recognize that the idealized pursuit of the abolition of sex work, as represented by PCEPA, cannot come at the cost of sex worker safety. A substantive equality analysis requires looking behind the veil of a seemingly neutral law and acknowledging the real harms disproportionately borne by vulnerable sex workers facing systemic marginalization.”

Here, the Ontario court has an important opportunity to reaffirm the parameters set out by the Supreme Court in Bedford,and to signal to Parliament once again that sex work laws must respect the constitutional rights of sex workers.

The BCCLA is represented by Emily Lam, Akosua Matthews, and Ruth Wellen of Kastner Lam LLP.

The BCCLA’s factum is available here: BCCLA Factum

[1] Canada (Attorney General) v. Bedford, 2013 SCC 72.

[2] The Canadian Alliance for Sex Work Law Reform.

[3] Standing Committee on Justice and Human Rights, “Preventing Harm in the Canadian Sex Industry: A review of the Protection of Communities and Exploited Persons Act” (June 2022), 44th Parl, 1st Sess, at p 37.

[4] Fraser v Canada (Attorney General), 2020 SCC 28.

[5] Fraser at para 42.

< class="what-entry-title">New BCCLA Staff>
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Join us in welcoming the new members of BCCLA team. Vibert and Ga will be joining us as our new Litigation director and Litigation Staff counsel. We are very excited to have them on board! Learn more about them below.

Vibert Jack, Litigation Director

Vibert Jack joined the BCCLA as Litigation Director in 2022. He completed an undergraduate degree in engineering at the University of British Columbia and following that worked briefly in the mining industry. Vibert decided to change paths in order to find a career that better aligned with his core values. He returned to UBC, this time to study law. Following that, he articled at a boutique criminal and administrative law firm. Vibert then joined Prisoners’ Legal Services, where he worked tirelessly to defend the civil liberties and human rights of incarcerated people, who are among the most marginalized and vulnerable populations in our Country. Vibert is committed to confronting injustice at every opportunity.

Outside of work Vibert enjoys playing soccer, football, and an especially lively game of chess.

Ga Grant

Ga (she/her) joined the BCCLA as Staff Litigation Counsel in 2022. Ga brings four years experience in legal practice serving First Nations with a focus on Indigenous rights, litigation, and specific claims. Previously, Ga clerked with the BC Supreme Court, assisted with legal aid work on Gitxsan and Wet’suwet’en territories, and summered with government and a boutique litigation firm, among other community justice work. Ga holds her Juris Doctor from the University of Victoria following her Bachelor of Music from the University of Ottawa. 

Ga was called to law to find creative and strategic use of the colonial legal system as a tool for justice, practiced alongside a lens of decolonial engagement. Ga is a settler of immigrant Lebanese and Jewish-American descent. She grew up on the traditional territories of the Haudenosaunee and Anishinaabe peoples and for the past decade has lived between the territories of Skwxwú7mesh (Squamish), Səl̓ílwətaɬ (Tsleil-Waututh), xʷməθkwəy̓əm (Musqueam), lək̓ʷəŋən (Songhees and Esquimalt), and W̱SÁNEĆ (Saanich) peoples.

Ga is also a musician and singer-songwriter; she can often be found writing new ditties and hanging out with her cat.

< class="what-entry-title">David Eby Knows Better>
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The BCCLA condemns BC Attorney General David Eby for throwing human rights, civil liberties, and evidence under the bus by suggesting the state should be able to involuntarily detain and force treatment on people who use drugs. As a lawyer, Minister Eby knows that such a law would violate Charter rights. Section 7 of the Charter guarantees everyone the right not to be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice. The right to decide what is done to one’s own body is essential.  Forced treatment of people who use drugs cannot be demonstrably justified in a free and democratic society. He also knows that just this Spring, his government abandoned a similar proposal to involuntarily treat youth because of  “the trauma associated with holding youth against their will, especially Indigenous youth.” Health experts know that the evidence does not support Eby’s dangerous musings; all evidence is clear that involuntary drug treatment can cause great harm – even death – and does not save lives. 

Minister Eby said involuntary care is needed to give people who use drugs a “chance” to survive. He is wrong and he knows it. What is needed is an end to the criminalization of drugs, a safe supply, and culturally safe, accessible, and voluntary treatment services for all.

This attempt to score political points for his leadership campaign is misleading, immoral, and reckless. But David Eby knows that too.

< class="what-entry-title">Solitary Confinement: Legal Torture?>
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Solitary confinement has been described as “the most onerous and depriving experience that the state can legally administer in Canada.”[1] The United Nations has defined solitary confinement as the detention of prisoners to their cells for 22 hours or more per day without meaningful human contact and prolonged solitary confinement as such a practice lasting for more than 15 consecutive days.[2] In Canada, we have been hesitant to call some of our penal activities ‘solitary confinement,’ choosing instead to refer to them as ‘administrative segregation’ or ‘lockdowns,’ even though these practices often meet the threshold required to be considered prolonged solitary confinement in international law.

Initially, solitary confinement was introduced as a supposedly humane alternative to corporal punishment and was backed by multiple prison reformists.[3] Solitary confinement was once considered greatly preferable to whippings or beatings, but social science and the experiences of those subject to its implementation have shown that the impacts of solitary are significant. There have been multiple studies which have indicated that solitary confinement may lead to long-lasting and, in some cases, irrevocable harm to the physical and mental health of people in prison.[4] These opinions are almost universally held by experts within this field.[5] These harms include an increased risk of suicide, self-harm, panic attacks, general anxiety, social anxiety, depression, dissociation, and an inability to reintegrate into the prison population or wider Canadian society following release. These effects are staggering and are even more acutely experienced by those with mental health issues. Further, solitary confinement disproportionately targets the most marginalized communities in Canada, most notably Indigenous individuals and people with disabilities.[6]

Some have contended that solitary confinement is a valuable and necessary practice. They argue that solitary confinement provides a safety net within the prison, where dangerous prisoners who are threats to others, whether to staff or other prisoners, can be held safely. However, when one pairs such a suggestion with research on the matter, there is a legitimate concern that solitary confinement instead increases dangers within the prison. Notably, solitary confinement has been linked multiple times to increased occurrences of violence, anti-social behaviour and recidivism, and may in fact have the opposite effect of what is desired, making prisons and society generally less safe.[7]

The United Nations have recognized the harms which may be incurred by placing an individual in solitary confinement. Rule 45 of the United Nations Standard Minimum Rules for the Treatment of Prisoners states that solitary confinement must only be used in exceptional cases as a last resort, must be subject to independent review, and must never be used against pregnant or breastfeeding women, children, or those with mental disabilities.[8] Further, Rule 43 states that prolonged or indefinite solitary confinement amounts to torture and cruel and inhumane punishment. Canada has long engaged in practices which violate these rules, and in 2015, the BCCLA took legal action, claiming the administrative segregation law (which authorized prolonged solitary confinement) infringed upon many sections of the Charter.[9]  The BC Supreme Court agreed that the administrative segregation law was unconstitutional and struck it down.[10] The BC Court of Appeal agreed.[11]

Even though the administrative segregation law was struck down as unconstitutional, prolonged solitary confinement continues to be utilized across Canada to this day.[12] Certainly, Canada is failing to uphold its international commitments and promise to its citizens to protect and defend our rights. That is why the BCCLA filed a lawsuit last fall to challenge the use of prolonged lockdowns in federal prisons. During lockdowns, people can be restricted to their cells all day, for several days or weeks at a time. Many lockdowns constitute solitary confinement under the United Nations Standard Minimum Rules for the Treatment of Prisoners.

If Canada is to claim to be a bastion for rights and fairness domestically and in the international community, we must acknowledge our practices which contravene these commitments. Solitary confinement, harmful in practice and unjust in implementation, is one such failing and must be stopped.

[1] Annual Report of the Office of the Correctional Investigator 2014-2015 at p. 31 [2014-2015 Annual Report]

[2] https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf

[3] Howard, J. (2013). The State of the Prisons in England and Wales: With Preliminary Observations and an Account   of Some Foreign Prisons (Cambridge Library Collection – British & Irish History, 17th & 18th Centuries). Cambridge: Cambridge University Press. doi:10.1017/CBO9781139891349 (page 43)

[4] https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2013.301742; https://journals-sagepub-com.proxy.lib.sfu.ca/doi/pdf/10.1177/26326663211065644; https://ajph-aphapublications-org.proxy.lib.sfu.ca/doi/pdf/10.2105%2FAJPH.2013.301742

[5] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 251)

[6] British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62 (at para 467 & 493)

[7] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 330)

[8] https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf

[9] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 260)

[10] British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62. 

[11] British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228.

[12] https://johnhoward.ca/drs-doob-sprott-report/

< class="what-entry-title">A Deep Dive Into Cullen’s Final Report>
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On June 15, 2022, the Cullen Commission of Inquiry into Money Laundering in British Columbia released its Final Report, which totalled 1,804 pages. This report followed the completion of 133 days of evidentiary hearings, where nearly 200 witnesses provided evidence on money laundering in various sectors of the BC economy.

The BCCLA was an active participant in the Cullen Commission and the only civil liberties organization granted full participant status. From February 2020 to October 2022, the BCCLA participated in Commission hearings, where we questioned witnesses and advocated for human rights, privacy protections, and due process.

The BCCLA has reviewed the Final Report, and overall, we are very disappointed. The Final Report calls for sweeping changes to tackle money laundering in the province, including the introduction of unexplained wealth orders, the aggressive pursuit of civil forfeiture, increased policing, and broad information collection and sharing. In our closing submissions, the BCCLA spoke out against taking this kind of tough-on-crime approach to money laundering, arguing that these invasive measures undermine constitutional rights, have not been adequately tested, and would be expensive to implement. The BCCLA advocated instead for addressing the root causes of money laundering, including our failed model of drug prohibition.

While we were quite disappointed by the Final Report, there are some positive aspects. For example, the BCCLA was pleased that Commissioner Cullen acknowledged the racist stereotypes being perpetuated in the public discourse about money laundering. We were also pleased that the Commissioner has recommended that the Civil Forfeiture Office should no longer be self-funded.

Below, we summarize some key human rights issues raised by the Final Report and provide our perspective on these issues.  

Civil Forfeiture

The Final Report calls on BC to pursue civil forfeiture more aggressively and to invest more heavily in civil forfeiture to fight money laundering.[1] Commissioner Cullen specifically recommends that the Civil Forfeiture Office should “significantly expand its operational capacity by adding investigators and analysts capable of identifying and targeting unlawfully obtained assets and instruments of unlawful activity beyond those identified in the police file.”[2]

The BCCLA is profoundly concerned by this recommendation. As we argued in our closing submissions, civil forfeiture grants extraordinary power to the state, undermines Charter rights, and hinders access to justice. Civil forfeiture allows the government to take property even if the owner has not been convicted of a crime. To make matters worse, there is a complete lack of credible evidence that it is an effective tool for fighting money laundering.[3] There is also evidence demonstrating that civil forfeiture disproportionately impacts marginalized communities, including individuals living on the Downtown Eastside.[4] We are extremely disappointed that the Final Report calls on BC to ramp up civil forfeiture. We strongly oppose any expansion of BC’s deeply problematic civil forfeiture regime.

Having said that, we are pleased that Commissioner Cullen has recommended that the Civil Forfeiture Office should no longer be self-funded.[5] We asked the Commissioner to adopt this recommendation in our closing submissions.[6] A self-funding model can create perverse incentives for public authorities to use civil forfeiture laws to benefit their bottom lines rather than to fight serious crime.[7]

Unexplained Wealth Orders

We are deeply troubled that Commissioner Cullen has recommended the adoption of Unexplained Wealth Orders (UWOs) in BC.[8] UWOs are a controversial legal tool that requires a person to explain the source of their wealth and allows for their wealth to be confiscated if they cannot provide sufficient evidence that it was lawfully acquired. UWOs undermine privacy rights, the presumption of innocence, and the right to silence. They have only been adopted in a few countries, and there is no credible evidence that they have been effective.[9]

In recommending the adoption of UWOs, Commissioner Cullen noted that he was “strengthened in [his] view that unexplained wealth orders are a viable solution” [10] because a legal opinion prepared for the Commission by the Honourable Thomas A. Cromwell, CC concluded that a United Kingdom-style UWO regime would pass constitutional muster in Canada.[11] The BCCLA made submissions in response to the Cromwell Opinion, noting that the utility of this opinion was quite limited, particularly given that no one was given the opportunity to question the Honourable Mr. Cromwell. Further, we highlighted that the Cromwell Opinion concluded that even a UK-style UWO regime “would give rise to a number of Charter issues” which would limit their usefulness.[12] In light of this, we are very disappointed that the Commission has relied on the Cromwell Opinion to recommend the adoption of a draconian and controversial legal tool in BC. 

Conflating Foreign Money and Dirty Money

One positive aspect of the Final Report is that it acknowledges the role of racism in public discourse about money laundering in BC. In our closing submissions, the BCCLA raised concerns about the disproportionate focus on Asian people in public rhetoric about money laundering and the harm this can do to Asian communities. We noted that this discourse has led to the scapegoating of “foreign buyers” and the widespread belief that housing has become unaffordable due to “Chinese money laundering.”[13]

The BCCLA’s perspective on this issue was reflected in the Final Report. Commissioner Cullen acknowledged that “ideas have developed in the public discourse that promote generalizations about the involvement of ethnic or racial groups in money laundering activity in British Columbia. There is, for example, a theory that money laundering by Chinese criminals in the housing market in the Lower Mainland has contributed to a housing unaffordability crisis.”[14] However, based on the evidence, Commissioner Cullen concluded these stereotypes were unfounded. Indeed, he determined that “low supply, high demand, and low interest rates are the drivers of housing unaffordability in British Columbia” – not money laundering or foreign investment.[15]

Commissioner Cullen also recognized the dangers of unduly focusing on China in public discourse about money laundering and the risks of conflating “foreign money” with “dirty money”:

I share Professor [Henry] Yu’s concerns about our public dialogue becoming infused with racist stereotyping. There are legitimate policy questions relating to foreign ownership of real estate in the province. Those questions should be addressed on their merits. They should be decided on the basis of sound policy and evidence. They should not engage “us vs. them” dynamics and must take care not to stray into treating any ethnic community as presumptively dishonest or unlawful. It is important to be aware of and avoid racism, whether it is glaring and obvious, or inadvertent and subconscious.[16]

Privacy and Information Sharing

The Final Report presents information sharing as a “key component of any anti-money laundering strategy”[17] and recommends many proposals to increase information collection and sharing in a manner that would unnecessarily undermine privacy rights.

For example, Commissioner Cullen has recommended the adoption of safe harbour provisions which would allow financial institutions to share information about potential money laundering without exposing them to liability.[18] As we noted in our closing submissions, such provisions are unnecessary as privacy legislation already allows for information sharing for the purposes of fighting money laundering in appropriate cases. Safe harbour provisions unduly erode privacy protections by encouraging further information-sharing and providing blanket protections against liability.[19]

We are also disappointed that Commissioner Cullen has recommended the creation of an Anti-Money Laundering Commissioner to facilitate strategic and tactical information sharing[20] and to analyze and aggregate data collected from multiple sources.[21] In our view, surveillance is not the solution.

We are pleased that the Final Report acknowledged the BCCLA’s concerns with Project Athena – a public-private partnership between law enforcement, the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) and banks to fight money laundering in casinos. Commissioner Cullen wrote: “I share the BC Civil Liberties Association’s concern about the potential for tactical information-sharing partnerships – such as Project Athena – to circumvent the requirements of section 8 of the Charter and undermine established constitutional rights.”[22] However, despite acknowledging these serious concerns, the Final Report nonetheless encourages significant tactical information sharing between law enforcement and public and private entities.[23]

The BCCLA is also pleased that the Commission has rejected suggestions to grant FINTRAC real-time access to all financial transactions in Canada.[24] The BCCLA was strongly opposed to this proposal because it would undermine FINTRAC’s independence and violate section 8 of the Charter by allowing law enforcement to engage in suspicionless searches. Consistent with the BCCLA’s submissions, the Commissioner criticized FINTRAC for their poor track record of turning a high volume of suspicious transaction reports into low quality actionable information.[25] Given this disproportionate and ineffective disclosure regime, the Commissioner properly concluded that FINTRAC could not be relied upon to provide timely, proactive intelligence.[26] Crucially, the Commissioner acknowledged that providing law enforcement with direct and real-time access to FINTRAC databases engaged constitutionally recognized privacy interests, and concluded that law enforcement could not “realistically expect” to receive such unfettered access to this level of information.[27]

The Commissioner’s consideration of privacy interests in the FINTRAC context is a rare bright spot, overshadowed by the fact that the Commissioner has seen fit to erode those privacy interests elsewhere throughout the Final Report by recommending drastic expansions to formal and informal information sharing arrangements between public and private entities and law enforcement.

Policing and Enforcement

The BCCLA is very concerned by the recommendation to create a specialized provincial intelligence and investigation unit to combat money laundering.[28] The new unit, whose mandate would be to identify and disrupt sophisticated money laundering operations, is lauded as a way to significantly combat organized crime. The Commissioner acknowledged the BCCLA’s serious concerns with this proposal,[29] and we remain concerned that the Commissioner has nevertheless made it a key recommendation in his report.

Specialized police units have failed to make an impact in combatting money laundering.[30] Experience has shown that staffing, structural, and resource issues have hindered those units’ ability to be an effective or efficient means of fighting money laundering.[31] For the Commissioner to contemplate a “significant investment by the Province”[32] to establish a new unit without remedying the serious issues that have arisen in previous units is a worrying oversight. It is unreasonable to expect that an infusion of resources, including a proposed “cadre” of experts,[33] will result in a different outcome without first addressing the underlying reasons why these units have been unable to retain their core investigative officers. The Commissioner has acknowledged that this provincial unit will encounter some redundancy with the federal investigative unit, and this is an additional issue that has not been adequately addressed.[34]

The BCCLA has repeatedly emphasized that appropriate responses to money laundering must consider the impacts on the rights and liberties of individuals.[35] With its recommendation for a new dedicated provincial unit, however, the Commission has fallen far short. The Commissioner is clearly alive to the fact constitutional issues may arise as the proposed unit seeks to fulfill its mandate.[36] However, the Commissioner has elected to ground the unit on an implicit expectation that it will operate within constitutional limits.

The BCCLA is also troubled by the Commissioner’s view that the early days of Project Athena may serve as a “useful” model for approaching the Charter issues that could arise.[37] Indeed, it is concerning that the Commissioner views Project Athena as “one of the most important anti-money laundering initiatives in recent years”.[38] As noted above, the BCCLA has raised serious constitutional concerns with this public-private partnership.[39] The Commission had the opportunity to invite, or retain, constitutional experts to speak to these concerns. For the Commissioner to make such an impactful recommendation with only a cursory acknowledgement[40] of the associated Charter issues is deeply disappointing.

Conclusion

The BCCLA combed through 1,804 pages so you don’t have to. Our position is that the Final Report’s findings and recommendations not only miss the mark on tackling money laundering but also threaten the human rights and civil liberties of people across BC. Despite a few encouraging aspects, the Commission has overall recommended a tough-on-crime approach that is cause for significant concern.

[1] Final Report, pp 8-9.

[2] Final Report, p. 1614.

[3] BCCLA Closing Submissions, pp. 3-12.

[4] https://vancouversun.com/news/local-news/bc-forfeiture-law-hits-poor-addicted-hardest?r

[5] Final Report, pp. 1614-1615.

[6] BCCLA Closing Submissions, p. 10.

[7] BCCLA Closing Submissions, p. 10.

[8] Final Report, p. 1618.

[9] See BCCLA Closing Submissions, p. 12.

[10] Final Report, p. 1618.

[11] Final Report, Appendix I, p. 1748.

[12] Final Report, Appendix I, p. 1748.

[13] BCCLA Closing Submissions, pp. 38-42.

[14] Final Report, p. 1624.

[15] Final Report, pp. 967, 1624.

[16] Final Report, p. 996.

[17] Final Report, p. 226.

[18] Final Report, p. 1008.

[19] BCCLA Closing Submissions, pp. 30-31.

[20] Final Report, p. 227.

[21] Final Report, p. 947.

[22] Final Report, p. 209.

[23] Final Report, p. 1558.

[24] Final Report, p, 1549.

[25]  BCCLA Closing Submissions, para. 50. Final Report, p. 1546.

[26] Final Report, p. 1551.

[27] Final Report, p.1549.

[28] Final Report, p. Recommendation #91.

[29] Final Report, p. 1553.

[30] BCCLA Closing Submissions, para. 131.

[31] IIGET and JIGET have both faced resourcing, structural, and staffing issues, see BCCLA Closing Submissions, paras. 116, 121.

[32] Final Report, p. 1555.

[33] Final Report, p. 1561.

[34] Final Report, p. 1557. 

[35] BCCLA Closing Submissions, para. 9.

[36] Final Report, pp. 1558, 1561.

[37] Final Report, p. 1559.

[38] Final Report, p. 1532.

[39] Final Report, p. 1515.

[40] Final Report, p. 1558.

 

< class="what-entry-title">Exemption ≠ Decriminalization>
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The illicit drug poisoning crisis continues to exact a heavy toll. In British Columbia, the Coroners Service recorded more deaths from drug poisoning in 2021 than in any other year. The record-high 2236 deaths documented in 2021 was more than double the number recorded in 2016, when BC’s Provincial Health Officer first declared the opioid-related overdose crisis a public health emergency.[1] According to the Coroners Service’s most recent data, 2022 is slated to match or exceed this pace, contributing to the deadly epidemic that has taken over 30,000 lives across Canada to date. By way of sombre but necessary comparison, the COVID-19 pandemic has so far contributed to over 42,000 lives lost across the country. While that public health emergency has attracted a concerted and nation-wide mobilization of protective measures, resources, and coordination between all sectors of society to lessen and overcome its worst effects, the drug poisoning crisis has not. Without a commensurate response, this parallel crisis will continue inexorably along this devastating path.

Missed Opportunities: Bills C-5 and C-216

Against this backdrop, the response to the drug poisoning crisis from the federal government[2] has been woefully inadequate. On June 15, 2022, the House passed government Bill C-5, An Act to Amend the Criminal Code and the Controlled Drugs and Substances Act (CDSA), sponsored by the Minister of Justice and Attorney General of Canada David Lametti. While the focus of Bill C-5 lies in removing mandatory minimum penalties for all drug offences under the CDSA and the Criminal Code, it nevertheless does not fully decriminalize simple possession. Indeed, the BC Civil Liberties Association previously criticized Bill C-22, the identical predecessor to Bill C-5, for not going far enough to shift Canada away from the damaging criminal law approach to drug use that has systemically and disproportionately impacted Indigenous, Black, and marginalized people within Canada’s criminal legal system.

Adherence to this disappointing status quo is difficult to reconcile with the mandate letter addressed to Canada’s Minister of Mental Health and Addictions Carolyn Bennett. The letter called for “a comprehensive strategy to address problematic substance use in Canada”, including efforts to improve public education, improve access to evidence-based treatment and harm reduction services, and develop standards for substance-use treatment programs.[3] Put simply, the federal government’s continued reliance on a criminal justice approach to drug use in Bill C-5 is incompatible with the public health approach envisioned by the mandate letter. This contradiction demonstrates a lack of coordination between federal ministries; a disappointing display of leadership that unfortunately comes at a time when concerted action is needed to stem the devastating tide of preventable drug poisoning deaths.

Similarly, it is disappointing to see the federal government’s rejection of private member’s Bill C-216, the Health-based Approach to Substance Use Act, brought forward by MP Gord Johns of Courtenay-Alberni, BC. That bill, which was defeated on June 1, 2022, would have recognized the treatment of substance use as a public health issue by accomplishing three things. First, it would have repealed the simple possession offences in the CDSA; second, it would have expunged the records of people with prior simple possession convictions; and third, it would have implemented a national strategy on substance use with measures to ensure access to a safe supply of drugs and increased access to harm reduction, treatment, and recovery services. If this sounds familiar, it is because it aligns closely with the comprehensive strategy contemplated in Minister Bennett’s mandate letter. For the federal government to tout the need for a public health approach while simultaneously making incremental adjustments to a flawed criminal regime is an incomprehensible, if not cynical, attempt to varnish its actions with the illusion of meaningful progress.

A Step Forward? BC Receives Exemption to Decriminalize Simple Possession

On May 31, 2022, the federal government took the historic step of granting the Province of BC’s request to exempt adults from being charged under the Controlled Drugs and Substances Act (CDSA) with the personal possession of certain illegal drugs. The move to decriminalize simple possession – which has attracted support from BC Provincial Health Officer Dr. Bonnie Henry, the Canadian Association of Chiefs of Police, the Centre for Addiction and Mental Health, and over 180 civil society organizations[4] – is a step in the right direction. Like other drug policy and human rights advocates, however, the BCCLA also views the announcement as a missed opportunity for the many people who will be left behind by the cumulative possession threshold of 2.5 grams once the exemption comes into effect in January 2023.

More broadly, continued reliance on the piecemeal regional exemptions made necessary under the current CDSA scheme is unconscionable. People in Canada cannot continue to wait with bated breath for the results of each exemption application when, according to the latest available data, individuals continue to die from drug poisoning at an average rate of 6 deaths per day in BC and 19 deaths per day across Canada. While the announcement is a positive development, the BCCLA remains deeply concerned that the federal government has not urgently prioritized a national public health approach to address the drug poisoning crisis.

The Way Forward: Drug Decriminalization Done Right

The federal government’s declarations to work collaboratively with provincial, territorial, and municipal partners ignore the reality that any amendments to the Controlled Drugs and Substances Act will require a federal response. This reality is why the BCCLA endorses the civil society platform Decriminalization Done Right: A Rights Based Path for Drug Policy, which proposes fundamental changes to drug policy, including the full repeal of federal legislation criminalizing simple possession and necessity trafficking. The BCCLA recognizes that decriminalization is not a panacea, nor will it resolve the drug poisoning crisis on its own. Rather, full decriminalization – including the removal of all criminal sanctions and administrative interventions such as fines and drug seizures associated with simple possession – will go far to reduce the stigma that forces individuals to use drugs alone, to turn to a toxic supply, and to avoid seeking safe and non-judgmental health care and social supports. A meaningful federal response must include programs that address, by the government’s own assessment, an “increasingly toxic supply, increasing feelings of isolation, stress and anxiety, and limited availability or accessibility of services for people who use drugs”[5]. Therefore, the platform also calls for access to a safe supply of drugs, evidence-based harm reduction services, and culturally appropriate supports.

As the drug poisoning crisis worsens, experts and people with lived experience have called for a particular focus on the increasingly toxic drug supply. The BCCLA recognizes that framing substance use as a moral failure disregards the fact that the unpredictable and contaminated supply – which data indicates is driven primarily by fentanyl and increasingly with benzodiazepines – is killing people from all walks of life, in all areas of the province, and irrespective of their frequency of drug use. Further, hesitation around safe supply misses the mark when the BC Coroners Service continues to report zero deaths at supervised consumption and drug overdose prevention sites, with no indication that the few pilot programs of prescribed safe supply are contributing to illicit drug deaths. Therefore, the platform recognizes that non-coercive access to a regulated, consistent, and reliable supply of non-poisoned drugs is key to saving lives.

At a time when the latest modelling suggests that opioid-related deaths may only continue to increase throughout the remainder of 2022, the BCCLA reiterates the call for transformative, immediate, and coordinated action.

 

[1] BC Coroners Service, Illicit Drug Toxicity Deaths in BC January 1, 2012 – May 31, 2022, at https://www2.gov.bc.ca/gov/content/life-events/death/coroners-service/statistical-reports.

[2] **The Liberal Party of Canada has been the governing party during the periods referenced in this blog.

[3] Prime Minister of Canada, Minister of Mental Health and Addictions and Associate Minister of Health Mandate Letter, December 16, 2021, at https://pm.gc.ca/en/mandate-letters/2021/12/16/minister-mental-health-and-addictions-and-associate-minister-health.

[4] HIV Legal Network, Letter to Canadian Government: Decriminalize Simple Drug Possession Immediately, updated March 3, 2021, at https://www.hivlegalnetwork.ca/site/letter-to-canadian-government-decriminalize-simple-drug-possession-immediately/?lang=en.

[5] Special Advisory Committee on the Epidemic of Opioid Overdoses. Opioid- and Stimulant-related Harms in Canada, Ottawa: Public Health Agency of Canada; June 2022, at https://health-infobase.canada.ca/src/doc/SRHD/Update_Deaths_2022-06.pdf, p 5.

< class="what-entry-title">Due Process for All. Except Youth.>
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Youth involved in Canada’s criminal justice system are uniquely vulnerable.[1] Young people can be more susceptible to pressure from the police and other agents of the state. They also must navigate the difficulty of advocating for their legal rights.[2] Involvement in the criminal justice system at a young age can also have serious long-term consequences. For example, young people in prison face barriers in accessing education and may have reduced employment prospects for years to come. [3]  

The Supreme Court of Canada has recognized the significant vulnerability of youth on many occasions. [4] For example, in a 2008 judgment, the Court held that the Canadian Charter of Rights and Freedoms protects a presumption that young people are less blameworthy for crimes they commit than adults, [5] as they have “heightened vulnerability, less maturity and a reduced capacity for moral judgment.” [6]

Parliament has also recognized that young people need special rights and protection. Through the Youth Criminal Justice Act (YCJA), Parliament created a separate legal system for young people charged with criminal offences. [7] With a focus on promoting rehabilitation and reintegration,[8] the YCJA aims to grant young people “enhanced procedural protection to ensure that [they] are treated fairly and that their rights … are protected.”[9]

Shockingly, however, the YCJA also denies young people a critical procedural protection: the automatic right to appeal their case to the Supreme Court of Canada. If a young person wants the highest court in the country to review a finding of guilt, section 37(10) of the YCJA says they must first get the Court’s permission for their case to be heard. [10] In contrast, adults have an automatic right to appeal to the Supreme Court in many criminal cases. In cases involving serious crimes where there is a risk of a miscarriage of justice, there is no barrier to adults initiating an appeal. [11]

This double standard has not gone unchallenged. In November 2020, one young person went all the way to the Supreme Court of Canada to challenge the constitutionality of this section, arguing that it violated his Charter rights to liberty and equality.

The BCCLA intervened in this case, further arguing that section 37(10) of the YCJA was unconstitutional because it is procedurally unfair, arbitrary, and overbroad. We told the Court that young people are entitled to robust procedural protections because they are vulnerable. We explained that an automatic right to appeal would provide youth with a critical layer of protection against wrongful convictions. Appeal rights ensure that a higher court can review the decision and verify that it was not made in error. The BCCLA was represented in this intervention by pro bono counsel Alison Latimer and me.

In May 2021, the Supreme Court rendered its judgement in this challenge and, unfortunately, upheld the constitutionality of section 37(10) of the YCJA. Chief Justice Wagner explained that denying youth an automatic right of appeal was not discriminatory, but rather “responded to the reality of their lives”[12] because it ensured court proceedings could be over quickly and would prevent “unnecessary delay.”[13]

The BCCLA strongly disagrees with this conclusion. In our view, speedy legal proceedings for youth should not come at the cost of due process.

One Supreme Court judge, Justice Abella, wrote a scathing dissent, co-signed by Justice Karakatsanis and Justice Martin, in which she concluded that the YCJA violated the Charter right to equality. She explained that this law “deprives young people of what is acknowledged to be a significant safeguard against wrongful convictions for adults, despite the evidence that young people are more vulnerable to them than adults.”[14] She noted that “[t]here is no justification for a speedy resolution if the resolution is based on an unfair trial.”[15] Justice Abella highlighted that, while all young people involved in the criminal justice system are vulnerable, racialized youth are particularly vulnerable due to systemic discrimination. [16]

The BCCLA was very disappointed by the decision of the majority of the Supreme Court and hopes that Parliament will amend the YCJA to grant youth the same appeal rights that are available to adults. 

 

[1] R. v. D.B., 2008 SCC 25 at para. 41.

[2] Nicholas Bala and Sanjeev Anand, Youth Criminal Justice Law, 3rd ed. Toronto: Irwin Law, 2012, p. 164. 

[3] Nicholas Bala, “Responding to Young Offenders: Diversion, Detention & Sentencing Under Canada’s Y.C.J.A.” Queen’s University Faculty of Law Research Paper Series (March 2015), p. 9.

[4] See ex: R. v. L.T.H., 2008 SCC 49 at para. 24; R. v. S.J.L., 2009 SCC 14 at para. 64; R. v. K.J.M., 2019 SCC 55 at para. 55.

[5] D.B. at paras. 45-69.

[6] D.B. at para. 41.

[7] Youth Criminal Justice Act, SC 2002, c 1 [YCJA], s. 3(1)(b).

[8] YCJA, s. 3(1)(b)(i).

[9] YCJA, s. 3(1)(b)(iii).

[10] YCJA, s. 37(10).

[11] Criminal Code, RSC 1985, c C-46, ss. 691(1)(a), 691(2); see also R. v. C.P., 2021 SCC 19 [C.P.] at para. 60.

[12] C.P. at para. 162.

[13] C.P. at para. 162.

[14] C.P. at para. 86.

[15] C.P. at para. 4.

[16] C.P. at para. 88.

< class="what-entry-title">Remembering BobbyLee Worm>
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Mother. Activist. Powerful. Loyal. Loving. Courageous.

The BCCLA is mourning the loss of BobbyLee Worm, a Cree woman who loved life and had three beautiful children. She is remembered for her willingness to speak up against injustice. Because of her courage, long-term solitary confinement is now illegal in Canadian prisons.

Despite the hardship she experienced, BobbyLee leaves a legacy of hope and inspiration. She was a friend of and activist alongside the BC Civil Liberties Association for many years. Her efforts to share her story have directly led to improved prison conditions for many incarcerated people across Canada.

BobbyLee helped to transform the fight to end solitary confinement in Canadian prisons. She gave the movement a voice and she convinced judges, legislators, and ordinary Canadians that this practice was unacceptable. She spoke with honesty and clarity about her experience of imprisonment, in a way that transformed public understanding.

At age 19, BobbyLee was sentenced to six years in federal prison for a first offence. She spent more than three and a half years of her sentence in solitary confinement, including a period of 747 consecutive days. During this period, BobbyLee was confined for up to 23 hours a day in an eight by ten-foot cell. She was held under a discriminatory policy known as the “Management Protocol,” which was designed exclusively for women prisoners. The vast majority of the women placed on the Management Protocol were Indigenous. The policy was blatantly unlawful from its inception, and yet the Correctional Service of Canada (CSC) made use of it for several years.

Despite the risks of speaking out while still incarcerated, in 2011, BobbyLee asked the BCCLA to file a lawsuit. Her goal was not just personal – it was to abolish solitary confinement for the benefit of all incarcerated people. Two days later, BobbyLee was released from the Management Protocol. Later that month, the CSC announced it would end the program across Canada.

BobbyLee went on to testify in the BCCLA and John Howard Society’s legal challenge to the administrative segregation law, which allowed for long-term solitary confinement. Her testimony was crucial for the judge to find that solitary confinement places people in prisons at a significant risk of serious harm. In 2019, the BC Court of Appeal upheld the trial court’s ruling that the administrative segregation law was unconstitutional. The laws that BobbyLee challenged have since been repealed by the federal government.

“Even in the most difficult moments, BobbyLee Worm was full of love, good humour, and courage. Long after she was released from solitary confinement, she kept fighting on behalf of others,” says BCCLA Board Member Lisa Kerr. “The BCCLA sends its love and respect to her children and the communities she left behind.”

BobbyLee leaves a legacy of three beautiful children. A GoFundMe fundraiser has been created for her children and all funds raised will go directly towards their support and care. Please consider donating whatever is within your means: https://www.gofundme.com/f/for-bobbylees-children

A short film documenting some of BobbyLee’s life and advocacy journey can be viewed here.

 

 

< class="what-entry-title">New Board President & VP Announcement>
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We are writing to you as the new President and Vice President of the BC Civil Liberties Association.

We were honoured to accept the Board’s nomination as President (Karen Mirsky) and Vice-President (Vanessa Wolff). We are as passionate about civil liberties and equality as we are about the BCCLA and its importance to the advancement of law and dialogue in Canada. We bring a powerful love of the organization, coupled with a robust sense of purpose and humility.

I am a Vancouver-based lawyer with nearly two decades of experience in civil liberties, protest law and criminal law. I have a history of non-profit governance through my work as chair for Pivot Legal and PACE Society. I am a queer settler raised on unceded territory of the Skwxwú7mesh (Squamish), Səl̓ílwətaʔ/Selilwitulh (Tsleil-Waututh) and xʷməθkʷəy̓əm (Musqueam) Nations. As a BCCLA director for five years, I have served on the executive, fundraising and board recruitment committees.

Vanessa Wolff is a director who has served for eight years, working on the executive, fundraising and board recruitment committees. She is an experienced educator with a long history of work for civic and social organizations on behalf of the Canadian Union of Public Employees (CUPE). As an immigrant, she has the privilege of living and working on the on unceded territory of the Skwxxwú7mesh (Squamish), Səl̓ílwətaʔ/Selilwitulh (Tsleil-Waututh) and xʷməθkʷəy̓əm (Musqueam) Nations.

BCCLA President Karen Mirsky
BCCLA Vice President Vanessa Wolff

We also welcome Stephanie Goodwin, who joined the BCCLA as interim Executive Director in late 2021. Stephanie is a seasoned non-profit leader who brings more than twenty years of experience in social and environmental leadership and a deep commitment to justice to the BCCLA. We are pleased to have her experience, passion, and intellect leading the organization through the transition to our next permanent Executive Director.

We thank David Fai and Haran Aruliah, the former President and Vice President, respectively, who withdrew from their roles last winter to spend time focusing on health and family. David was a dedicated Board member who served the organization for six years as a Director, President, and as pro bono counsel. Haran served as Director and VP for four years and was a valued voice on the Board and is the father of a beautiful new child.

This year, the BCCLA turns 60. We are the oldest civil liberties association in Canada, and our work has come at a critical time in our country. We will always seek out the best way forward for the organization, those whose experiences we champion, and the issues we represent. 

Together, we can work toward a future that protects our civil liberties and fosters the full inclusion of all members of our society. We invite you to join us as we move forward.

Sincerely,

Karen Mirsky (she/her)
President, BCCLA

Vanessa Wolff (she/her)
Vice President, BCCLA

< class="what-entry-title">Injunctions Will Not Solve Homelessness: BCCLA Reacts to Prince George Withdrawing Tent City Appeal>
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Housing is a human right, but Prince George has been fighting people experiencing homelessness in court for months. Last week, the city finally withdrew its appeal against unhoused people living in a tent city in Moccasin Flats, near downtown Prince George. The city also apologized for the harm it caused by bulldozing the encampment.

The BCCLA, along with Pivot Legal Society, and the BC Assembly of First Nations had been granted leave to intervene in the city’s appeal. We intended to argue that injunctions sought by the government must respect Charter rights, and in particular, the rights to life, liberty, and security of the person of unhoused people. You can read our memorandum of argument here. We were represented in this intervention by Julia Riddle of Nathanson, Schachter & Thompson LLP.

People are living in Moccasin Flats because they have nowhere else to go. There is not enough affordable housing in Prince George. The shelter system is often full or inaccessible. Further, a constellation of Prince George bylaws makes it illegal for residents to shelter anywhere on public land. Two recent reports from the BC Assembly of First Nations show the profound impact of Prince George’s Safe Streets Bylaw on unhoused people. 

The BCCLA is happy that this litigation has finally come to an end, but we are deeply concerned by what has brought us to this point.

  • In August 2021, the city applied for an injunction to evict unhoused residents living in Moccasin Flats. In October, the BC Supreme Court released it decision in Prince George (City) v. Stewart, 2021 BCSC and denied this injunction. The Court ruled that the tent city residents should not be evicted because there were not enough accessible shelter spaces for them.
  • In November 2021, Prince George disobeyed the Stewart decision and bulldozed the Moccasin Flats encampment, leaving many residents with nowhere to go.
  • The city then went back to court to try to get another injunction to close the encampment. In February 2022, the BC Supreme Court denied this injunction as well. In Prince George (City) Johnny, 2022 BCSC 282, the Court concluded that there still was not enough housing for the Moccasin Flats residents and that Prince George had breached a court order by tearing down the encampment. The Court noted that “[t]his breach inflicted serious harm on vulnerable people” (para. 82).
  • Prince George then appealed the Stewart decision, which they finally withdrew in March 2022.

Municipalities should invest their resources in providing housing and addressing the root causes of homelessness instead of fighting vulnerable people in court. Suing people experiencing homeless will never solve homelessness. It is time to take a different approach.

Creative Commons LicenceThis work by BC Civil Liberties Association is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada License.