Menu
< class="what-entry-title">Due Process for All. Except Youth.>
Posted on

 

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>
Posted on

 

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>
Posted on

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>
Posted on

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.

< class="what-entry-title">BCCLA announces departure of Litigation Director Grace Pastine>
Posted on

The BC Civil Liberties Association (BCCLA) announced today that Grace Pastine is stepping down from her position as the litigation director of the BCCLA.

Pastine was hired in 2007 as the BCCLA’s first litigation director and  engineered a string of court victories in high profile cases.

The BCCLA praises Pastine’s work for spurring major reforms and victories related to patients’ rights, police accountability, and the rights of people in prison.

“Over nearly 15 years, Grace has brought compassion and intellect to her work on behalf of our clients,” says Vanessa Wolff, the vice president of the BCCLA board of directors. “Her thoughtful, strategic approach to long-term reform has improved lives and helped guide our organization. She’s a tireless and passionate advocate for civil liberties and human rights. She will be sorely missed.”

During her 15 years as litigation director, Grace Pastine was a leading civil liberties advocate.

With Pastine as litigation director, the BCCLA racked up a winning record in a number of headline-generating cases, including the successful challenge to have solitary confinement in prisons declared unconstitutional. She served as part of the trial team that represented the plaintiffs in the case that saw medical assistance in dying (MAID) legalized across the country. The victory transformed the end-of-life options for gravely ill Canadians whose suffering is unbearable.  

She served as counsel for the BCCLA on some of the country’s notable public inquiries into police abuse, including the inquiry into the death of Frank Joseph Paul, a 48-year-old Mi’kmaq man, who died of hypothermia after the police left him in a Vancouver alley. 

The BCCLA’s participation in the public inquiry into the death of Polish immigrant Robert Dziekanski at the Vancouver International Airport resulted in the provincial government ending the practice of police investigating themselves. Pastine was also counsel on an inquiry into the actions of the Canadian military police in a long-running controversy over the torture of detainees in Afghanistan.

Working with a coalition of prisoners’ rights advocates, the BCCLA filed a case that led to the abolition of a practice called the ’management protocol’, an extreme form of solitary confinement that was used almost exclusively against Indigenous women. Pastine helped facilitate a settlement for one of the women who spent three and half years in solitary confinement under the protocol.

In the wake of revelations that governments around the world were engaging in the massive collection and monitoring of citizens’ personal communications, Pastine helped the BCCLA bring a legal challenge to the secret activities of Canada’s electronic intelligence agency, the Communications Security Establishment (CSE). The lawsuit spurred legal change, prompting Parliament to reform the entire legal framework governing CSE’s information gathering activities.

During her tenure, Pastine directed the BCCLA’s interventions in over one hundred cases before the Supreme Court of Canada on cases including police accountability, warrantless surveillance, free speech, safe injection sites, mandatory minimum sentences, the right to sue for torture, and the decriminalization of sex work.

Under Pastine’s leadership, the BCCLA attracted a stellar team of committed staff lawyers and a roster of preeminent lawyers across the country who volunteered their services free of charge to defend civil liberties.

“The number of people who are willing to do good for the world is astoundingly high,” said Pastine. “My respect runs very deep for the courage and conviction of our clients. And I cannot begin to express my deep admiration for the incredible people – volunteer lawyers, supporters and members – who stepped forward to wage justice, one case at a time.”

Lee Carter, left, hugs Grace Pastine, litigation director of the BC Civil Liberties Association, inside The Supreme Court of Canada in Ottawa on Friday morning, Feb. 6, 2015. Carter and her husband accompanied her 89-year-old mother Kathleen (Kay) Carter, who suffered from spinal stenosis, to Switzerland in 2010, to end her life. The Supreme Court unanimously struck down the ban on providing a doctor-assisted death to mentally competent but suffering and “irremediable” patients. THE CANADIAN PRESS/Sean Kilpatrick

Pastine says she is taking some time off to spend time with her young family before she decides on her next steps.  She will leave her role at the end of March 2022. Pastine plans to continue to devote her legal career to human rights and civil liberties. “I’ve reached the decision that it’s time to move on, but I won’t be leaving the work, just this workplace. I’m profoundly grateful for the years that I’ve been honoured to serve as the litigation director of the BCCLA.”

“We are at a critical time for civil liberties and human rights,” Pastine continues. “There are significant assaults on our rights in several spaces — from free speech to trans rights to immigrant justice to policing, and the BCCLA is in that fight, working to bend the arc of history toward justice. There is a tremendous opening to truly embrace reconciliation and anti-racism at the core of the approach to civil liberties.”

The BCCLA plans a nationwide search for a new litigation director.

< class="what-entry-title">Human Rights: Change Through Collaboration>
Posted on

We have always fought to protect fundamental human rights and freedoms, but we never do this work alone. From coalition work and joint advocacy, to lending our perspectives in challenges against unjust legislation, to amplifying the voices of people across the country, we continue to uphold human rights and push for change through collaboration.

In 2020, our collaborative work with partner organizations, pro bono counsel, and our membership resulted in multiple victories for access to justice, human dignity, and protecting democratic rights.

Dismantling Legacies of Discrimination

As part of the Coalition on Murdered and Missing Indigenous Women and Girls (MMIWG) in BC, we raised concerns about the lack of information and registration delays for First Nations women and their descendants who are newly entitled to status. In 2019, Canada made historic and welcome amendments to sexist provisions in the Indian Act, entitling up to 450,000 people to status. However, information on eligibility is not being distributed to communities, and the wait time for processing applications can take up to three years.

Along with the BC Human Rights Tribunal and other organizations, we also advocated for the addition of Indigenous identity as a ground of discrimination in the BC Human Rights Code. The Code prohibits discrimination based on race, colour, ancestry, and place of origin, which fails to capture the experiences reported by Indigenous Peoples and protect them from exercising rights unique to their Indigenous identity.

Protecting the Right to Die with Dignity

We continued the fight for end-of-life rights and won. In February 2020, the federal government introduced Bill C-7, which allows those who are intolerably suffering and incurably ill to access medical assistance in dying (MAiD) without being “near-death”. The Bill also allows for advanced requests in place of a final confirmation for those whose capacity to do so may become impaired. When the federal government considered adding other barriers in Bill C-7, we created a digital toolkit that was downloaded thousands of times by our members and supporters to help people across Canada participate in the public consultation process and make their voices heard. In March of 2021, we successfully advocated for amendments to remove the barriers, and the House of Commons passed Bill C-7.  

Human Rights in The Courts

  • In Attorney General of Quebec, et al. v. 9147-0732 Québec Inc., we secured an important victory for human dignity when the Supreme Court of Canada ruled corporations don’t have a constitutional right to freedom from cruelty. The BCCLA intervened to argue that protections against cruel, inhuman, or degrading treatment or punishment only apply to human beings.
  • In Justice Centre for Constitutional Freedoms v. Her Majesty the Queen (Court of Queen’s Bench of Alberta), we are holding governments accountable by fighting Alberta’s unconstitutional Bill 10. The bill grants sweeping new powers to the provincial government to write new laws without legislative oversight.This violates our right to democratic due process and the Charter. Even during a pandemic, the Alberta government remains bound by the constitution.
  • We fought to protect benefits for young adults leaving government care in Alberta in AC and JF v. Her Majesty the Queen. The case was about an Alberta law that put young adults raised in government care at risk of losing financial and emotional benefits to help them transition to independence. We argued that the law should be suspended because it violates the rights to life, liberty, and security of the person under s. 7 of the Charter. Unfortunately, the Alberta Court of Appeal allowed the injunction appeal, which meant that young adults raised in government care were denied critical benefits. However, the majority of the Court agreed with the BCCLA that s. 7 of the Charter may protect positive socio-economic rights in a future case.

< class="what-entry-title">Raising the Alarm on State and Corporate Surveillance of Tiny House Warriors>

In August I travelled to the Tiny House Warriors Village on a fact-finding mission to better understand the escalating intimidation and surveillance at the hands of the state of Canada and the Trans Mountain (TMX) Crown Corporation.

The Tiny House Warriors (THWs) are Secwepemc Land & Water Defenders who oppose the plan to twin the TMX pipeline. They engage in political advocacy to block the expansion of the pipeline, including the maintenance of the THW Village, which was set up in July 2018 to challenge the establishment of an industrial man camp in Blue River, BC.

After a warm welcome from Kanahus Manuel and other THW members, they showed me the idling and unmarked vehicles nearby, each pointing towards the village with a single man inside. When I approached them, I could see that the men inside were filming me and the THWs confirmed that this occurs 24/7. I asked the men who they were and why they were recording me, but they would only shake their heads.

In addition to the constant surveillance by men seeking to remain anonymous, the THWs are also subject to a robotic surveillance tower installed by TMX. This tower points directly at the village and even into the private premises of Kanahus Manuel’s tiny house. This tower is arrayed with floodlights, loudspeakers, sensors and cameras. 

A walk with the THWs around their village revealed additional surveillance equipment installed in public areas along a footpath leading through blueberry fields and towards the banks of the Blue River. I was alarmed to see video cameras affixed to trees on public land, without any form of notice as to which government agency is collecting the recordings and for what purpose!

When we came across some workers in the area with video cameras on their hardhats, they too refused to discuss who they work for and why they were collecting our personal information in a public space. 

This around-the-clock monitoring of the THWs is an intimidation tactic by the Canadian state to silence Secwepemc Land & Water Defenders and to continue to disregard the authority, jurisdiction and inherent Title and Rights of Indigenous peoples. While I have filed a request with TMX to find out more about what they are doing with the audio and video recordings that are being collected, the BCCLA continues to work in coalition with the THWs and others to call for an immediate suspension of permits and halt of TMX construction until the Secwepemc people give their free, prior and informed consent to the pipeline expansion. 

< class="what-entry-title">Enough is Enough: We took the RCMP Commissioner to Court>
Posted on

On September 21, 2021, pro bono counsel Paul Champ and I appeared in Federal Court to argue the BCCLA’s case against the RCMP Commissioner. This lawsuit was about the RCMP Commissioner’s extreme delays in responding to public complaints. In February 2014, the BCCLA filed a complaint against the RCMP for spying on Indigenous and climate advocates opposed to the Northern Gateway pipeline. The complaint was investigated by the Civilian Review and Complaints Commission (CRCC) – the RCMP watchdog. But due to the RCMP Commissioner’s extreme delay in dealing with this complaint, the CRCC was only able to release its final report in December 2020, nearly seven years after the complaint was filed.

At the Federal Court, we argued that the RCMP Commissioner had violated her statutory obligations and the BCCLA’s constitutional rights by causing this inexcusable delay.

Unfortunately, this case is not the only example of extreme delay by the RCMP Commissioner. Indeed, delays have plagued the RCMP complaints system for over a decade. These delays have significant consequences. They undermine public confidence in the RCMP and the complaints process. They harm individuals and families waiting for accountability and justice. Complaints about very serious matters have sat on the RCMP Commissioner’s desk for years. Recommendations from the CRCC for addressing RCMP misconduct are only implemented once the complaints process is complete. We told the Federal Court that the culture of complacency within the RCMP needs to change.

During the hearing, counsel for the Attorney General of Canada finally acknowledged that the RCMP Commissioner had violated her obligations under the RCMP Act by waiting so many years to respond to the BCCLA’s complaint. This was a significant concession.

We now anxiously await the Federal Court’s decision. But regardless of the outcome, we know our litigation has had a positive impact. Since the BCCLA launched this case, the RCMP Commissioner has hired additional staff members to help her respond to complaints more quickly. She has also made significant progress in dealing with the backlog of complaints. We hope the Federal Court issues a strong judgment condemning the extreme delays caused by the RCMP Commissioner, so she is finally held to account.  

< class="what-entry-title">Proof Of Vaccination Programs Are Warranted to Protect Public Health and Save Lives Amid a Deadly Pandemic>
Posted on

Proof of Vaccination Programs[1] have become a popular tool for governments across Canada responding to the fourth and current wave of COVID-19 infections. As an organization dedicated to advancing human rights and liberties while focusing on the relationship between people and the state, the BCCLA in principle[2] supports the implementation of proof of vaccination programs being unveiled across the country right now. This blog will explain why we are in favour of these public health measures while pointing to some features of current proof of vaccination programs that cause us concern.  

COVID-19 Can Cause Grave Harms to Those Infected and the Healthcare System

The virus carries the risk of serious health consequences, including death, temporary or permanent disability, and a condition known as “long COVID.” As of the end of September 2021, almost 28,000 people have already lost their lives in Canada after having been infected with COVID-19. Widespread COVID-19 can also cause grave harms to the healthcare system and those harmed by the healthcare system being overwhelmed by COVID-19 patients. In earlier waves, provinces and territories had to contemplate invoking triage protocols that would have resulted in patients with conditions other than COVID-19 being denied or removed from critical care beds. Some people have had their medical treatment for conditions other than COVID-19 delayed or denied because the system was stretched too thin responding to COVID-19.

COVID-19 Vaccines are Safe and Effective

Although we have had concerns about the accessibility of COVID-19 vaccines, we have no doubt that the available COVID-19 vaccines are safe and effective. The potential side effects of the COVID-19 vaccines are very rare and largely treatable (even when not treatable, the risks of the vaccines are dramatically less than the risks of COVID-19). The vaccines reduce the risk of infection and serious disease in the individual who receives the vaccine. Unvaccinated persons are at a higher risk than vaccinated persons of transmitting COVID-19 to other people.

Proof of vaccination programs do not force medical treatment on anyone.

We have long championed personal autonomy and bodily integrity, neither of which are at risk under these programs.

Proof of vaccination programs restrict fundamental civil liberties for some, while protecting and promoting fundamental civil liberties for others

Broadly speaking, given the widespread and devastating impact of COVID-19, the effectiveness and safety of COVID-19 vaccines, and the absence of an equally effective and less intrusive alternative, we believe that programs requiring proof of vaccination can be consistent with and even promote civil liberties and human rights principles.  However, the permissibility of any such program will depend on a fact-specific, case-by-case inquiry, and changing circumstances.

Proof of vaccination programs by their very nature impair a variety of constitutionally protected rights and freedoms. These include the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms (“Charter”), including:

  • the right to life, liberty and security of the person limited only in accordance with the principles of fundamental justice;
  • freedom of religion and conscience;
  • freedom of thought, belief, opinion and expression;
  • freedom of peaceful assembly; and
  • freedom of association.

On the other hand, these same freedoms can be protected by proof of vaccination programs.  For example, these programs can reduce the risk of infection for those who cannot get vaccinated or for whom vaccination is less effective.  Another case in point is how the proof of vaccination program currently implemented in Alberta allows businesses and venues to avoid restrictive public health measures such as mandatory masking, distancing, and capacity limits if they instead require proof of vaccination or a negative test result from anyone entering.

Concerns about Proof of Vaccination Programs

Although many of us have been subject to the requirement to produce vaccination records in our lives (e.g. to attend public school in some places, to travel internationally, etc.) we realize that the current programs being implemented to reduce the harms posed by COVID-19 are unprecedented in their scope as well as in their use of technology. 

As the implications of these measures extend beyond public health, particularly for people already experiencing barriers to housing, services, and businesses, governments implementing these programs need to take adequate direction from communities and organizations that understand how to best navigate public health in the context of precarious status, criminalization, poverty, disability, and other intersecting oppressions.

With such new and expansive programs, there are several areas that we are paying careful attention to:

  • Any program that does not provide accommodations or exemptions for the people who are unable to be vaccinated for rare medical reasons does not uphold human rights.[3] The current BC Vaccine Card program is an example of a program with this flaw.
  • Programs must be accessible to people without government identification documents, including photo ID, or smartphone technology. In particular, governments must ensure that undocumented migrants and unhoused people are not excluded.
  • Programs must avoid requiring Two-Spirit, Trans, and Non-Binary individuals having to use government ID and legal documents that contain their deadnames or inaccurate gender markers.
  • Programs must be designed to maximize public health benefits while minimizing privacy impacts. Special consideration must be given to what information is encoded in the proof of vaccination, what information is collected by the organization issuing the proof of vaccination at the time of issuance and what entities are permitted to issue and implement the programs. Personal information collected through proof of vaccination programs must be deleted as soon as public health officials either declare that the pandemic is over or when the programs are no longer necessary, minimally impairing, and proportionate.
  • Programs must be monitored on a regular and timely basis to ensure that they only remain in place so long as they are necessary, minimally impairing, and proportionate. As COVID-19 and our understanding of COVID-19 evolves, so too will the justifications for the limits they place on rights and freedoms.

Read the Statement of Principles Regarding Proof of Vaccination Programs

Notes:

[1] What we mean when we use the term “proof of vaccination program”: Proof of vaccination programs are state-imposed requirements for people to provide some specified form of evidence to prove that they have been vaccinated against COVID-19 to, for example, access modes of transportation, premises, venues, and services. The term also includes proof of vaccination programs that may arise in the context of employment. Other terms commonly used to refer to a means of confirming a person’s COVID-19 vaccination or immunity status are vaccine passport, immunity passport, vaccine or vaccination certificate or card.

[2] The BCCLA Board of Directors recently approved a Statement of Principles regarding Proof of Vaccination Programs that further elucidates how the organization approaches and evaluates the wide variety of possible proof of vaccination programs. 

[3] These conditions are currently limited to those with a confirmed severe allergy and those with a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine.  

< class="what-entry-title">Creating change – in the world and the workplace>

Over the past few years, the BC Civil Liberties Association has focused its attention on how we can create a different world and a different workplace than the one so many of us are raised and trained in. We want to be part of creating change, both out there in the world and within our organization. Our 2020-2025 Strategic Plan notes “The BCCLA values our staff and seeks to promote   their   well-being,   consistent   with   our   values   and   to   ensure   the   sustainability of our work.”

As the BCCLA’s (outgoing) Executive Director and the Director of Operations and People, we are thrilled to be sharing four important steps the BCCLA is taking to build a more equitable wage structure, permanent job security, and meaningfully valuing all teamwork.

For many years, BCCLA has been a Living Wage Employer, officially certified by Living Wage for Families B.C — the organization responsible for certifying employers. A living wage is higher than the legal minimum wage. It provides economic security by setting the bar to reflect what wage individuals and families need to bring home based on the actual costs of living. For several years, the BCCLA has used the Living Wage Calculation to establish an annual minimum salary of $43,680.

However, we are now going even further. As of July 2021, the BCCLA’s minimum salary for 1.0 full-time, permanent employees is $52,000 per year. We have also increased the salary ranges for all staff, with a current average salary of $75,200 and a median salary of $74,500.

As a non-profit organization, it is extremely difficult to find the financial resources to support these changes, and it is far too common to think that organizations such as ours simply “can’t afford” to shift. It may also raise eyebrows that an organization whose mandate is to serve others would spend so much of its resources internally.

However, we firmly believe that valuing the labour and dignity of our team is consistent with our fundamental mandate and values. Even as we are surrounded by constant crises and urgency in our work, our team’s contributions — particularly those whose work is typically underpaid in society — must be valued. Lifting up the wage floor of our team helps cultivate connection and shared purpose, shifts legal work cultures toward equality, and means we are more effective in advancing our mission. Increasing the wage floor is also an equity issue, as racialized women workers tend to be the lowest paid staff in administrative roles.

Parallel to lifting up the wage floor, last year we took the bold move of instituting a maximum cap on the salary of the Executive Director. This is an important way to reduce large wage disparities across the organization, and demonstrates to our team that we are working together to build a better, more equitable, and more sustainable workplace.

We recognize that salaries are not the only factor affecting job security. We have also moved toward changing our temporary contracts into secure, permanent employment and are minimizing part-time work contracts. While some temporary contract positions are inevitable, such as covering for parental leaves or backfilling, we understand that permanent positions are important for job security and tenure. Full-time, permanent work also means we can strengthen our fantastic team and our many relationships and collaborations.

Finally, we have changed and retired a number of job positions. The position of Legal Assistant, Office Assistant, Administrative Assistant, and Executive Assistant are all common positions in legal organizations and non-profits. BCCLA has had some of these positions. However, based on reflection and important staff feedback, we have removed all ‘Assistant’-level roles in the organization and have created new job titles and job descriptions. While we all have varying responsibility to assist each other in our jobs, having a degree of autonomy and control in one’s job is key to dignified work. This is also crucial move to address entrenched gender bias in the workplace, and the common experience of being overwhelmingly subordinated to another person.

As BCCLA’s former Legal Assistant, and one of the advocates for this change, says: “There is a commonly held belief in many office cultures, whether conscious or not, that the work of assistants is somehow beneath those who do not hold that title. If you google the definition of ‘assistant,’ the first one provided is ‘a person who ranks below a senior person.’ It is a job title that is literally defined based on its inferiority to others. It does not begin to describe the countless hours of coordination, planning, and project management that are core to secretarial and administrative positions.  Changing the job title and description to Litigation and Office Coordinator more accurately reflects the day-to-day work in this position, and the respect the BCCLA gives to this type of work.

These are just some of the first small steps in this journey. We are also reviewing a number of our policies and practices, and we support efforts on the staff team towards collective bargaining. We know we have more work to do, and we are excited to share more developments with you. If you are a BCCLA member or donor, we thank you for making these changes possible and for being part of our work.