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Election Shenanigans

On Saturday, I volunteered as an Elections-Imageobserver at one of the advance election polls. I watched hundreds of people wait in line to cast their ballot, and it was pretty great to see so many people getting out to vote. However, a few concerning things came up, and I’ve since learned that concerning things came up at polls across the country. From hours long waits to improper questioning by elections officials, things were rocky in quite a few polling stations across Canada–even the BCCLA’s own Executive Director faced difficulties!

It’s important that we all know our rights when it comes to voting, and what we can do if something goes wrong.

The so-called Fair Elections Act passed by the Conservatives last year changed many of the rules about what you need in order to vote. Here are a few things to remember:]

You DO NOT need photo ID to vote.

Some voters were told that they did – this is INCORRECT. If you present two pieces of ID, one of which contains your address, you are good to go. Neither one needs to include your picture. If you’re told you need photo ID on Election Day, ask to speak to the poll supervisor to clear up the confusion.

If you DO have a driver’s license or other government issued ID with your name, address, and photo on it, THAT’S ALL YOU NEED TO VOTE.

At my polling station, I observed the Returning Officer ask someone for a second piece of ID after they had presented their driver’s license. This is wrong, and when I pointed out the error to her, she stopped doing it. But I know it’s happened to others too, and I’m worried that some voters will not come with a second piece of ID on Election Day and will be denied the right to vote. I registered my concern with Elections Canada (here’s a link where you can make a complaint if something goes wrong for you or you see something go wrong for someone else), and asked for additional information to be sent to the people who will be working the polls on Election Day. After significant cuts to its budget two years ago, Elections Canada has been struggling to fulfill its mandate and maintain the integrity of the vote. Returning Officers desperately need the right information and support to do their jobs properly and in accordance with the law. My observations and other reports suggest they’re not getting it.

There are all sorts of documents you can use as identification on voting day.

These include a library card, student ID card, a bill or bank statement, a label on a prescription container, a government cheque or cheque stub, and many other options. And it doesn’t even have to be the paper copy; an e-statement or invoice works too. For the full list of acceptable documentation, click here. Just make sure at least one piece has your address on it.

If you don’t have anything with your current address on it, don’t despair!

Although the so-called Fair Elections Act eliminated vouching for identification purposes (which we think is terrible), it maintained (after much criticism and advocacy) a version of vouching for address. It’s called an Attestation of Residence. If you don’t have anything with your current address on it, someone can “vouch” for where you live as long as they:

        • Live in the same polling division as you
        • Have proof of their own identity and residence
        • Haven’t vouched for anyone else or been vouched for themselves.

While this is not an easy list to meet, a roommate, family member, or neighbour may be able to help – don’t be afraid to ask!

Additionally, Elections Canada has produced a Letter of Confirmation of Residence which can be used by voters who are 1) members of a First Nation band but don’t have a street address on their ID, such as those who live on reserve or 2) those who receive services from a shelter or soup kitchen, or live in a student residence or long-term care facility. Here’s the link to the letter: http://www.elections.ca/id/EC50053_e.pdf – get it signed by the administrator of the facility where you live and bring it, plus a second piece of ID with your name on it to the polls, and you’re set!

Your Voter Identification Card (VIC) has no legal status, but you might want to bring it anyway.

This summer, the BCCLA intervened in a case brought by the Council of Canadians and Canadian Federation of Students challenging the Fair Elections Act. We were hoping to get an injunction to allow people to rely on their VIC as one of their pieces of ID, but were unsuccessful. So your VIC won’t count as ID on Election Day, but from what I observed at the polls this weekend, it made it a bit faster and easier for people to identify which line-up to join. So bring it if you’ve got it.

Your sex, gender expression and the sex indicator on your ID and voter registration documents do not affect your right to vote.

Check out this great resource from EGALE for more information for trans voters.

Check your ballot!

Dirty ballots – meaning they already had marks on them when they were given to the voter – were observed in a number of ridings over the weekend. I saw one voter return his ballot because it had a faint line through one of the circles where the voter is supposed to make their mark. I don’t know if this would have been enough to spoil the ballot, but it might have. Check your ballot, and if there’s any kind of weirdness to it, return it and ask for a new one.

You do not have to pre-register in order to vote.

While you will save yourself time if you’re already registered, you CAN register to vote at the polling station on Election Day. Just bring the identification you’ll need (described above) and ask to register. No big deal.

The right to vote is protected by the Canadian Charter of Rights and Freedoms. Knowing our rights is the best first step towards defending them.  

Death with dignity update: delay is not an option

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The families of Kay Carter and Gloria Taylor on Parliament Hill, before their press conference.

It’s been eight months since our historic victory before the Supreme Court of Canada affirming the right for the seriously and incurably ill to seek physician assistance in dying. At that time, the Supreme Court gave Parliament and the provincial legislatures 12 months to to decide whether legislative changes are needed before the Court’s ruling takes effect.

Today, with only four months left until the February 6, 2016 deadline, little progress has been made.

In July, after five months of heel dragging, the federal government announced a three member expert panel, two of whom were government witnesses fervently opposed to physician assisted dying during the Carter trial. To make matters worse, the public consultation is a deeply flawed instrument,  more likely to spread fear than to elicit useful information from the public.

The federal consultation and the public record

Still, in spite of the process, we are encouraging our members and supporters to make their voices heard in the federal consultation. If nothing else, we must ensure the public record reflects the overwhelming societal support for access to choice at the end of life.

The federal government`s online consultation will be open until November 1, 2015. You can participate online in two ways. First, by completing the “Issue Book”- a survey with sections addressing hypothetical situations regarding who should be eligible for physician assisted dying, and what safeguards should exist in the system. Second, by making a formal submission; both individuals and organizations are able to make formal submissions.

For more information on taking part in either the federal survey or making a submission, check out this letter writing tool kit.

We are committed to ensuring that the voices of the majority of Canadians who support this right are heard. If you make a submission to the federal consultation, please take a moment to email a copy to charlotte@bccla.org. We will retain copies in order to make sure that these submissions become part of the public conversation.

The provincial alternative- open until October 9

In better news, the provincial and territorial governments are stepping in to prepare Canada`s health care systems for the looming February 6, 2016 deadline. As an identified stakeholder, the BC Civil Liberties Association was asked to make a submission to this body.

Our full submission is available here.

Additionally, the province of Ontario is inviting Ontarians to take part in their online public consultation, which will remain open until October 9, 2015. The survey takes approximately 15 minutes to complete. We encourage all our members and supporters to answer honestly, and to feel welcome to participate even though some of the questions address complex areas in which you may not feel that you have all the information needed. This survey is focused on the voices of patients and families, as such your voice is exactly what is needed.

As an organization we`d like to draw your attention to our answers to a few of these questions for your consideration:


Question #30: Who do you think should have the final say about whether someone has a grievous and irremediable medical condition that creates enduring suffering that is intolerable and therefore can participate in physician assisted dying? Select one only.

Physician-assisted dying should be a private matter between physician and patient or family, as is the case for all other end-of-life treatment decisions. As with other decisions, the decision should with the patient on the advice of their physician according to the norms of informed consent law. If a physician disagrees that the patient qualifies there must be a timely right to appeal to an independent body aimed solely at determining whether the patient qualifies for the treatment.


Question #31: If you could choose, which conditions do you think would make a person eligible for physician assisted dying if they expressed consent for this option? Select all that apply.

  • Diagnosis of a terminal illness and given 6 months or less to live (e.g. stage 4 cancer)
  • Diagnosis of a degenerative incurable medical condition that eventually (more than 6 months) will result in death (e.g. multiple sclerosis, Lou Gehrig’s Disease (ALS), Alzheimer’s)
  • Diagnosis of a chronic condition or serious disability (e.g. chronic pain, quadriplegic following car accident)
  • Person suffering from unbearable psychological suffering (e.g. bipolar, schizophrenia, depression, etc.)
  • None of the above

According to the Supreme Court’s decision in Carter v. Canada, a person with any of the above conditions would be eligible for physician assisted dying.


Question #35: 1a) This question asks you to rate how much you agree or disagree with a series of statements regarding assisted dying.

The statements are as follows:

  1. a) A patient should have to undergo a psychological assessment if he or she requests physician-assisted dying.

Mandatory psychological assessments are not required in any jurisdictions that currently allow physician assisted dying. Canadian doctors deal with patients’ life-and-death decisions daily (“I want to stop chemotherapy,” “I would like a DNR order,” and “I want to be removed from life support,” for example). Physicians routinely consider whether psychological assessments are required to establish consent in these cases. Such assessments will continue when PAD is legal, but should not be mandatory in every case.


Question #35: 1.b) There should be a waiting or cooling off period between when a patient requests physician assisted dying and when it is performed.

The process of asking for assistance to die will take time.  We do not believe a further unnecessary wait should be imposed on eligible people who are suffering severely and have given informed consent in seeking physician assistance in dying.  The province of Quebec has taken this approach, and we agree that it should be followed across the country.


Question #35a: If you strongly or somewhat agree to a cooling off period in the above question, you will also be asked the following: In your opinion, approximately how long should the waiting period be?

It might be helpful to note that in other jurisdictions where physician assisted dying is allowed, waiting periods vary from none (for Quebec, the Netherlands and terminally ill patients in Belgium) to 15 days (in Oregon and Washington) to one month (for non-terminally ill patients in Belgium).


Our friends at Dying with Dignity Canada have outlined additional questions for consideration here.

Federal election- where the candidates stand

While the online public consultation remains open, other parts of the federal consultation (including in person consultation with key stakeholder groups like the BCCLA) have been put on hold during the election. While all parties are bound by the Supreme Court’s ruling to respect the constitutional right of seriously and incurably ill competent adults to seek physician assistance in dying,  the details of the scope of eligibility, the safeguards and barriers, and a number of other important details  remain to be sorted out.

How the federal government chooses to deal with these questions after Canada’s 42nd election will have important consequences for what this right looks like in reality.

Here are a few resources to inform you on the positions of all the major parties regarding physician assisted dying:

Additionally, the most recent french language debate provided some additional insight into the parties positions. Below are quotes from the three parties represented in the debate:

Conservative Party of Canada: “Certainly, we must modify the Criminal Code in accordance with the Supreme Court decision and we will do so.” —Stephen Harper

New Democratic Party of Canada: “I can guarantee you one thing: the NDP will have a free vote; never would I muzzle anyone on it. That’s why it must be a consultation that is real, large and sincere.” — Tom Mulcair

Liberal Party of Canada: “The Liberal party supports this because we understand that it’s important to protect the most vulnerable, but also respect the rights and liberties of all.” — Justin Trudeau

Delay is not an option

As political parties continue to jockey at the federal level, we were reminded again this week why delaying the implementation of the Supreme Court’s ruling is simply not an option.

On September 23rd, Donna DeLorme, a Calgary woman who struggled for nearly two decades with multiple sclerosis and advocated passionately for the right to doctor-assisted suicide, was forced to take her own life. Like too many Canadians before her, the criminal prohibition on seeking assistance in dying kept Donna alone in her last moments. On her blog she wrote, “I would like my parents and a few friends here that evening if it’s not illegal — for people to be in the vicinity and know what’s about to happen, and let me,” she wrote. “I think my mom wants to be here either way, but I will not let her jeopardize her freedom.

Donna celebrated the Supreme Court victory, but she could not wait the 12 months until the ruling came into effect. Today we share the words that Donna first shared with the world so that her request may be heard as far and wide as possible.

We are close to voting for our next Prime Minister, and nothing regarding PAD [physician assisted dying] is being discussed. I understand it’s a difficult topic for some, and they want to do it right. BUT IT STILL HAS TO BE DONE.

The Supreme Court set the deadline, and I hope and pray that it’s kept. On February 7, 2016 people like me can have access to our right to physician assistance to die. But without legislation and guidelines, no one will help us. Please help me and those like me end our suffering by being as vocal as you can, demanding better from our politicians. Please don’t make it harder for us.

With each passing day Canadians who desperately want this change in the law are running out of time. We encourage all our supporters to raise their voices in the consultation, and with their candidates across the country, to ensure that on February 7, 2016, seriously and incurably ill competent adults will have choice, compassion, and autonomy at the end of their lives. Delay is simply not an option.

Abbotsford trial comes to a close

This week, final arguments came to a close in BC/Yukon Association of Drug War Survivors (DWS) v Abbotsford (City). This was a landmark six-week trial in which a group of Abbotsford’s homeless residents challenged the constitutionality of City bylaws that prevented them from sleeping or erecting shelters in public spaces. The homeless residents are represented by lawyers with Pivot Legal Society, and the BC Civil Liberties Association was an intervener in the case.

As the BCCLA’s summer law students, we assisted by attending court to transcribe witness testimony and summarize the evidence for use in final submissions. Sitting in the court was eye-opening to say the least. We heard testimony from numerous witnesses, including homeless Abbotsford residents, experts in addiction, local service providers and city officials. It was clear from our time in court that homelessness is a complex issue, with many causes and no immediate solution. Certainly litigation, on its own, is an inadequate tool to solve the problem. What this case illustrates, however, is the role that the court can play in protecting people’s fundamental rights even when more action is needed to address a deeply complex social issue.  

One witness, Harvey Clause, described in detail the difficulty that he had finding reliable shelter in Abbotsford. After taking care of his mother through illness, Harvey turned to drugs to cope with her death. In Abbotsford, he was kicked out of one two recovery houses: first when he got a job at the house and stopped taking welfare, and second, when the house he was in shut down. At another residence, he was beat up with hockey sticks over a rental dispute. As a result of being beaten, he missed an appointment with the welfare office and was cut off. Harvey survived by biking and camping around the city with his cat, Buddy. Harvey earned money by collecting cans, and used meth in order to have the energy to bike longer and collect enough so that both he and Buddy could eat. If he could only go so far, only Buddy would eat. He couldn’t take Buddy to the Salvation Army because they wouldn’t allow pets. So, Harvey and Buddy camped.

Harvey’s experience was not unique. The homeless in Abbotsford were constantly being moved around the city. Beginning in October 2013, a group of homeless people set up tents in Jubilee Park in Abbotsford, an area where service providers regularly provide meals, health care and other services to people. During the trial, the court heard testimony about how a sense of community developed among the homeless staying in the park, as they would watch over each other and their belongings. That December, only five days before Christmas, the City of Abbotsford obtained an injunction order requiring the homeless residents to vacate the park. City officials then tore down the structures that had been erected and prevented people from re-entering the park.

The evidence at trial revealed the tactics used by the City. City officials dumped chicken manure and fish fertilizer on camps, cut and slashed tents, pepper sprayed tents and belongings, cleared bushes to make camps more visible, blocked entryways to camps with tree trunks, and applied City bylaws even in areas where they did not apply (such as private land). Forcing people to move not only created adverse health and safety risks for those individuals, but made it more difficult for the few existing service providers to reach them, as people moved to more isolated and remote locations.

A group of homeless residents brought a lawsuit arguing that the City’s bylaws and actions breached their Charter rights, violating their life, liberty and security of person, their equality rights, and their rights to freedom of association and assembly.

The issues in this case go beyond those at stake in the BC Court of Appeal’s earlier decision in Adams v Victoria (City). In that case, a city bylaw preventing people from erecting overnight shelter was found to violate the homeless population’s right to life, liberty and security of the person. Here, DWS is not only concerned with the lack of available shelter beds and a prohibition on erecting shelter, but with the systemic efforts of the City of Abbotsford to repeatedly evict and permanently displace members of its homeless community, in the midst of municipal inaction to provide solutions on a longer-term basis.

The BCCLA intervened in the case, arguing that the government holds land in trust for the public, and has corresponding obligations to ensure the public can use that space. Homeless individuals have no private space of their own, so denying their use of public space essentially denies them the use of any space at all. This exclusion from public space disproportionately impacts the homeless, who have no other place to go.

The plaintiffs in this case are not asking for the court to order that housing be provided to them. This is not the role of the court. What the court can do is tell the City that if they fail to provide the necessities of life, they cannot interfere with individuals’ efforts to obtain those necessities for themselves. The real question is whether the City’s current bylaws and bylaw enforcement practices are a constitutional response to people who have no choice but to engage in life-sustaining activities in public spaces. If people do not have the right to exist in public spaces, what rights are left for those in our society who are the most vulnerable?

Pride & Privacy

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For the 35th anniversary of Vancouver Pride, the BCCLA reflected on the role privacy has played in protecting LGBTQ+ people and winning LGBTQ+ rights.  Before our love was celebrated as widely as it is today in Vancouver, LGBTQ+ people invoked privacy rights to keep the state out of our bedrooms.

Today, online privacy remains an important issue for LGBTQ+ people. For people coming out on their own terms and their own time, the privacy of their online communications is pivotal. For out and proud members of our community who travel or work in less welcoming places, where an LGBTQ+ identity can still result in physical harm, privacy of online communications history can be a matter of life or death.

Don’t Spy on Me!

That’s why the BCCLA invited festival goers at the Sunset Beach Pride Festival to join our photo petition, letting the government know that online privacy matters to them. More than 110 photos were taken of Pride participants, sending their message to Canada and the world’s governments: Don’t Spy on Me!

In Photos: “Don’t Spy on me!”

Revelations of spying

For a week in June, almost every day brought shocking new revelations about the scale of spying programs operated by the Obama administration in the United States as well as by governments around the world -including the Canadian government. [Read more here] 

In the same weekend we celebrated Pride here in Vancouver, the Globe and Mail reported that Canada’s security agencies are following a policy that would allow for the exchange of information with foreign countries even when it may put someone at risk of torture. While Minister John Baird is declaring Canada’s support for LGBTQ+ people around the world, our government seems to have forgotten that privacy is an LGBTQ+ right of the utmost importance.

More on our work to stop online surveillance

 More on our 40+ Years of LGBTQ+ Advocacy

2013-pride-infographic

 

Speaking up for clean drinking water shouldn’t make us enemies of the state

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When I heard my government might be spying on me, I asked why speaking up for a safe environment makes me suspect. (Read my reaction at the time in the Huffington Post.)

Sierra Club BC is a charity that operates entirely within the bounds of the law.  Speaking up for clean drinking water shouldn’t make us enemies of the state.

Photo credit: Caitlyn Vernon

Photo credit: Caitlyn Vernon

Why is the federal government spying on concerned citizens who are participating in public democratic processes such as the Enbridge Northern Gateway Joint Review Panel hearings? We have the right to engage in our democracy without fear of being monitored by our police and spy agencies.

This illegal spying is an attack on democracy, and on our rights as Canadians.

This spying is just the latest move by a federal government trying to push dangerous tar sands pipelines on an unwilling province. The government has changed laws, broken its own laws, and muzzled scientists. It has targeted environmental charities like Sierra Club BC, with verbal attacks and extensive CRA audits.

And now it seems our federal government wants to suppress and intimidate all dissent.

The allegations of spying are having a chilling effect. People are more reluctant to speak up about issues facing their community, for fear of being monitored or put on some list.

Sierra Club BC staff and volunteers feel violated, concerned that we are being monitored, and anxious about what the consequences will be for future job prospects. The chill effect makes it harder for us to engage members of the public on important environmental issues – some people are more reluctant to sign a petition or get involved. And the heightened sense of scrutiny – even though we operate entirely within the law and within the bounds of charitable activity – has meant that organizational resources have been diverted away from environmental work and into administrative tasks instead.

Sierra Club BC board members have expressed shock and distress that they would be considered enemies of the state for their role in civil society as they volunteer their time to raise awareness of the climate science.

What we are seeing is the criminalization of dissent. It is a frightening slippery slope that ends in a police state, and no part of this is okay. I am giving testimony today in the secret CSIS hearings because we will not be silenced; we will not be bullied. And we will defend our rights.

The Canada I know and love is a place where we all have the right to express our concerns and opinions, and get involved in public debate about important issues that affect us all.

The Canada I love is a place where protest and dissent are key to our democracy, and make us better as a nation.

The Canada I see today is unrecognizable to the country I thought I lived in.

The time we are spending defending our right to protest, and the government resources being put towards illegal spying, could be better spent working together to build a fair and sustainable low carbon economy that benefits all Canadians.

If our government really wants to protect our national security it should get serious about climate change, rather than targeting ordinary Canadians who love this beautiful land we call home and want to make it a better place.

Caitlyn Vernon is the Campaigns Director of Sierra Club BC.

I was spied on

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The Canadian government has been spying on law abiding Canadians engaged in peaceful activities related to the Enbridge Northern Gateway pipeline project. In what The Guardian has called “unprecedented” sharing between governments and corporations, Canada’s spies then sat down with oil companies to share that information.

In 2014 the BCCLA fought back, filing legal complaints against the Canadian Security Intelligence Services (CSIS) and the Royal Canadian Mounted Police (RCMP).  Now, the Security Intelligence Review Committee (SIRC), the body responsible for CSIS oversight, will be holding secret hearings in Vancouver from August 12-14, 2015

Alexandra Swann, a volunteer with the Dogwood Initiative, participated in activities and then learned that those activities may have been spied upon. Below, she shares her experience of being spied on:

Alexandra_Swann_photoParticipating in environmental groups is an ethical act for me, something I have done my whole adult life. I do it like some people go to church – I have an obligation to my conscience, I am subject to higher powers than myself, and I want to connect with a community of like-minded individuals. This is real political participation for me. Many other very average Canadians feel the same compulsion to come out on early mornings or late evenings to do good work for a cause they believe in or a community they cherish. They sacrifice time out of work and family life for something bigger than themselves.

I was incredibly shocked and disturbed to find out about the surveillance on Dogwood and other environmental groups. It struck me first of all as a fruitless waste of intelligence resources. I’ve never been charged with a crime nor had an encounter with the police. The meetings that were being monitored were a place where Dogwood taught us skills like how to make a compelling public narrative or how to canvass efficiently – not exactly subjects of concern to law enforcement. Whatever reasons they had for doing it had little to do with enforcing public order. Finding out had a chilling effect for me. Suddenly, I was very concerned how far it extended. Was I personally named somewhere? Had they investigated my online activities? Read my emails? I realized the right to privacy was a myth in this country, and that being a decent person was no barrier to illegal scrutiny by people far more powerful than me.”

Together with three of the organizations who were illegally spied on, the Sierra Club of BC, the Dogwood Initiative, and ForestEthics Advocacy, we are seeking accountability for this illegal activity, and an end to unconstitutional spying on Canadians.

Learn more about our work on illegal spying against engaged citizens here.

A tough week for voting rights

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Recently, the Ontario courts issued two important decisions affecting Canadians’ constitutionally protected right to vote. The decisions are troubling. Between them, the rulings will effectively disenfranchise over a million Canadian citizens in the upcoming federal election, and will disproportionately impact some of the most vulnerable members of Canadian society, including people who are homeless, the elderly and Indigenous peoples. Even worse, they do so in the absence of any compelling justification.

Council of Canadians et al v Canada (Attorney General)

First, on July 17, the Ontario Superior Court of Justice denied an application brought by the Council of Canadians and the Canadian Federation of Students for an injunction to suspend the operation of controversial amendments to the Canada Elections Act brought about by the Fair Elections Act, which became law in 2014.

Photo credit: Marc Lostracci

Photo credit: Marc Lostracci

The applicants are challenging a number of elements of the Fair Elections Act, including provisions that restrict the use of “vouching” and prevent voters from using their Voter Identification Card as a piece of identification on voting day. The groups filed a constitutional challenge to these provisions last year, arguing that they violate section 3 of the Canadian Charter of Rights and Freedoms, which protects the right of every citizen to vote, and section 15, which protects equality rights. They say that these changes will disproportionately impact students, elderly people, people with disabilities, homeless people and Indigenous people, who are all less likely to possess the identification required by the Act.

The BCCLA has been an outspoken advocate on issues of democratic rights, and has been a vocal opponent of voter identification laws. We believe that voter ID laws seek to address a single, largely speculative problem – wrongful impersonation of voters – at far too great a cost – disenfranchisement of Canada’s most vulnerable and marginalized citizens. When these amendments were first proposed in 2014, BCCLA staff lawyer Raji Mangat made submissions to Parliament on these points. The BCCLA is now an intervener in the case.

Unfortunately, the full case could not be heard in time for the federal election this October, so the applicants sought an injunction to prevent the application of some of the Act’s most problematic provisions during the election. On July 17, their application was denied. Despite acknowledging the risk that some people would be unable to vote because of the strict new requirements and the potential for “irreparable harm” as a result, the judge declined to issue the injunction, saying that it would be “problematic to change the rules for elections at the last minute through the blunt instrument of judicial intervention.”

Of course, the very rules at issue only became law in October of last year, making a full constitutional challenge of their merits before the election all but impossible. Rejecting the application for an injunction in these circumstances creates a perverse incentive: government could introduce laws violating rights just months before an election, safe in the knowledge that – at least for the purposes of that election – those laws will stand because a court will not have time to fully review them.

Photo credit: Pascal Walschots

Photo credit: Pascal Walschots

The implication of the decision is that tens of thousands of Canadians may find themselves unable to vote on Election Day. These citizens will be unable to exercise one of the most important rights they have in a constitutional democracy, at exactly the moment when it counts the most. We know this is going to be a hotly contested election, and many ridings could turn on the slimmest of margins. Where the disenfranchised voters could have changed the result of the election, this would constitute irreparable harm not only to them, but also to the public at large. In our view, this is a much more problematic result than the one the judge was worried about.

Frank v Canada (Attorney General)

Then, just a few days later, the Ontario Court of Appeal issued its decision in Frank v Canada (Attorney General), in which the BCCLA also intervened. The Court of Appeal overturned a lower court decision and decided, by a margin of 2 to 1, that it is constitutional to deny the right to vote to Canadians who have lived outside Canada for more than five years. While the majority acknowledged that Canadians’ Charter-protected voting rights are breached by this rule, they found the breach permissible under s. 1 of the Charter as a reasonable limit on the right to vote.

What’s especially concerning about these cases is that in neither one did the government provide a compelling justification for the infringement of fundamental democratic rights. In the Fair Elections Act case, speculation about voter fraud was not borne out on the evidence, which showed that such occurrences are virtually non-existent in Canada. In Frank, the majority concluded that the breach of voting rights could be justified by the “pressing and substantial objective of preserving the social contract at the heart of Canada’s system of constitutional democracy.”

The “social contract” discussed by the majority refers to the idea that laws derive their legitimacy from the fact that they are made by elected representatives of the people who will ultimately be governed by those laws. However, this is just the kind of vague and symbolic justification the Supreme Court of Canada warned about in another important voting rights case, Sauvé v Canada (Chief Electoral Officer). In that case, the government defended its denial of voting rights to prisoners on the basis that they were promoting respect for the law and appropriate punishment. In rejecting their argument, the Court said:

Vague and symbolic objectives such as these almost guarantee a positive answer to this question [of whether the rights violation can be justified]. Who can argue that respect for the law is not pressing? Who can argue that proper sentences are not important? Who can argue that either of these goals, taken at face value, contradicts democratic principles? However, precisely because they leave so little room for argument, vague and symbolic objectives make the justification analysis more difficult. Their terms carry many meanings, yet tell us little about why the limitation on the right is necessary, and what it is expected to achieve in concrete terms. The broader and more abstract the objective, the more susceptible it is to different meanings in different contexts, and hence to distortion and manipulation.

Photo credit: Jamie McCaffrey

Photo credit: Jamie McCaffrey

In upholding prisoners’ right to vote, the Supreme Court of Canada in Sauvé emphasized that the right to vote is “fundamental to our democracy and the rule of law”, “the cornerstone of democracy” and represents “the foundations of the participatory democracy guaranteed by the Charter”. However, these decisions out of Ontario seem to suggest that voting is a privilege, not a right, and one that can be denied on the basis of vague and speculative government concerns. We should all be alarmed if such a vital right can be stripped away without any compelling justification.

Counsel for the parties will be seeking leave to appeal in both of these troubling cases. The BCCLA intends to continue its role as an intervener in the appeals, making arguments about the fundamental importance of voting rights to our democratic process and the high burden that must be met to limit them.

Canadian human rights organizations: Bill C-51 has passed but serious human rights concerns have not gone away

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c-51When Bill C-51, the Anti-terrorism Act 2015, was tabled in Parliament this spring, Canada’s leading human rights organizations called for the Bill to be withdrawn. Amnesty International, the British Columbia Civil Liberties Association, the Canadian Civil Liberties Association, the Canadian Muslim Lawyers Association, the International Civil Liberties Monitoring Group, La Ligue des Droits et Libertés and the National Council of Canadian Muslims have stated from the outset that the serious human rights shortcomings in Bill C-51 are so numerous and inseparably interrelated that the Bill should be withdrawn in its entirety. We believe that any national security law reform should instead, first, be convincingly demonstrated to be necessary and should then proceed only in a manner that is wholly consistent with the Canadian Charter of Rights and Freedoms and the country’s international human rights obligations.

Disappointingly, Bill C-51 has passed and is poised to become law. But the fight isn’t over yet. Too much is at stake. Over the past few months, we saw public concern and opposition to Bill C-51 grow as Canadians learned more about the Bill and the threat it poses to fundamental rights and freedoms. Now that it has passed, if we are to see the Anti-terrorism Act 2015 repealed, it is crucial that Canadians continue to have conversations in the months to come about security, human rights, and basic freedoms – with each other and with those seeking office in the fall’s federal election. We believe that the government has never made the case for Bill C-51 beyond the simple assertion that it “needs” additional powers to protect public safety. But it has provided no explanation as to why Canada’s spy agency needs unprecedented and troubling disruption powers.  It has not made a credible case for the vast, opaque and unaccountable all-of-government information sharing regime Bill C-51 creates.  And, it has provided no evidence for how no-fly lists with appeal provisions that lack due process actually improve aviation security and public safety.

Photo credit: Sally T. Buck

Photo credit: Sally T. Buck

Throughout the Parliamentary hearings on Bill C-51, not a single witness offered a concrete example of how the draconian measures in Bill C-51 would better protect public safety. Legal experts have also pointed out that some provisions in Bill C-51 actually undermine anti-terrorism activities. For example, the new criminal offence of advocating or promoting the commission of terrorism offences “in general” may frustrate detection of potential threats when speech gets driven underground or chill community efforts to de-radicalize extremist views. Yet these serious concerns have not been addressed in any way.

While Canada’s national security agencies are granted ever-increasing powers and scope, no effort has been made to provide for a system of robust and independent accountability, despite urgent calls for reform. For instance, Canada stands stunningly alone among our closest allies in intelligence sharing in failing to ensure parliamentary oversight of national security. And Bill C-51 has only compounded the accountability problems that already exist, by making it harder for individuals to hold government officials to account for rights violations.

With so many unanswered questions and obvious human rights shortcomings, we strongly urge Canadians across the country to keep talking and learning about the Anti-terrorism Act 2015 this summer, and to make it clear to the candidates who will be vying for votes in this fall’s election that they expect nothing less than firm commitments to repeal the Anti-terrorism Act 2015 as a matter of first priority. This debate is far from over.

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Learn more about Bill C-51, the Anti-terrorism Act 2015:

Updated: Ten Things You Need to Know About the Changes to Canadian Citizenship

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Second Class Citizen

Image under CC license from Flickr/chealion *

At the beginning of June, the very nature of Canadian citizenship was altered as a major portion of Bill C-24 went into effect, officially creating a two-tier citizenship system. As a result of this new law, dual citizens and people who have immigrated to Canada can have their citizenship taken away while other Canadians cannot.

The response to the implementation of Bill C-24 has been amazing; in the past few weeks since the new provisions came into effect, 50,000 Canadians have signed our petition to repeal the citizenship changes, bringing the number of signatories to almost 95,000!

It’s clear that people really care about this issue, and we’ve received thousands of comments and questions about what the new provisions mean and how they will affect Canadians. We’ve put together this list of frequently asked questions to help. Click on the questions below to skip down to the relevant information.

Update: We kept being asked, so we’ve added a tenth answer, regarding whether Bill C-24 applies to Canadians retroactively (see number 6).

  1. Who will be affected by the changes to Canadian citizenship?
  2. Why will this turn dual citizens into ‘second class’ citizens?
  3. Why does the law only apply to dual citizens and those people who are eligible to obtain another citizenship?
  4. Does this really apply to Canadians who don’t have another citizenship, but could be eligible for another citizenship?
  5. What about new or naturalized Canadians who end up living outside Canada?
  6. Does Bill C-24 apply only to those who become Canadian after it comes into effect, or does it apply retroactively to all those who are dual or eligible to be dual citizens?
  7. If I don’t break the law, this won’t affect me, right?
  8. What are the next steps/what can we do?
  9. Can you give me advice about my specific case?
  10. I want more detailed information!

1. Who will be affected by the changes to Canadian citizenship?

Anyone who holds or is eligible for another citizenship could be vulnerable to the citizenship stripping provisions of Bill C-24 if they commit the offences or prohibited conduct referred to in the Bill. This legislation has the potential to capture lots of people, and once we allow for citizenship revocation for some, it won’t take much to further pry that door open wider in the future to allow revocation on additional grounds.

We have the benefit of a modern judicial process that includes prosecution, trial before an independent judge and, in the event of conviction, a just punishment that achieves the goals of deterrence, retribution, denunciation and rehabilitation. We do not need to throw Canada back to the dark ages and revive the medieval practice of banishment as a way of punishing people. And once we make it lawful to exile some people, what’s to stop it being used against others in the future? Misinformation is being used to justify these changes; you can read a breakdown of these myths and inaccuracies here.

2. Why will this turn dual citizens into ‘second class’ citizens?

This law says that some Canadians, who have no other citizenship and no eligibility for citizenship anywhere else, are Canadians forever. Other Canadians, including dual citizens – who have Canadian citizenship and the citizenship of another country at the same time – could possibly have their citizenship taken away, even if they were born in Canada. Even if the government never takes their citizenship away, the fact is that their citizenship is no longer secure and permanent. It’s been said that citizenship is “the right to have rights”. For those whose citizenship is now insecure, their rights as Canadians are also insecure.

3. Why does the law only apply to dual citizens and those people who are eligible to obtain another citizenship?

Under international law, it’s illegal for a country to take someone’s citizenship away from them if that would leave them “stateless”, meaning that they have no citizenship – or access to citizenship – in any country. So Bill C-24’s citizenship revocation provisions apply to dual citizens, because taking their Canadian citizenship away would still leave them with another country of citizenship.

Citizenship can only be revoked if you meet certain criteria in Bill C-24, like being convicted of one of the list of crimes that make citizenship stripping possible, or if you are suspected of one of the activities that make you eligible for citizenship stripping such as participating in armed conflict against Canada. Regardless, dual citizens now have weaker rights of citizenship simply because it is possible to take their citizenship away.

4. Does this really apply to Canadians who don’t have another citizenship, but could be eligible for another citizenship?

Under international law, Canada can’t take away someone’s citizenship if it would leave them stateless, meaning that they have no citizenship – or access to citizenship – in any country. But Canadians, even those born in Canada, who are eligible to acquire the citizenship of another country could be vulnerable to C-24’s citizenship stripping provisions. They may never have set foot in the other country, or even be aware that they are eligible for citizenship in another country. However, they can be subject to citizenship stripping because it is arguable that they can obtain another citizenship. This is especially problematic because eligibility for another citizenship is not the same as having another citizenship. Just because you are eligible to apply does not mean that the other country will give it to you. But for the purpose of C-24, just being eligible for another citizenship is enough. So in fact, someone in this situation who had their Canadian citizenship stripped could wind up not having citizenship anywhere.

Citizenship can only be revoked if you meet certain criteria in Bill C-24, like being convicted of one of the list of crimes that make citizenship stripping possible, or if you are suspected of one of the activities that make you eligible for citizenship stripping such as participating in armed conflict against Canada. Regardless, Canadians who are eligible to obtain the citizenship of another country now have weaker rights of citizenship simply because it is possible to take their citizenship away.

5. What about new or naturalized Canadians who end up living outside Canada?

The ‘intent to reside in Canada’ provisions would make new Canadians vulnerable to citizenship stripping if, after they become citizens, they move abroad for some reason. From now on, new Canadians will have to promise that they intend to reside in Canada as a pre-condition of obtaining citizenship, and failing to reside in Canada after citizenship is granted could mean that the government will consider you to have lied in your application for citizenship. Misrepresentation is a ground for nullifying citizenship. So a new Canadian who moves to another country to be with a dying relative, to live with their children, or to pursue a business, academic, or other employment opportunity could be at risk.

6. Does Bill C-24 apply only to those who become Canadian after it comes into effect, or does it apply retroactively to all those who are dual or eligible to be dual citizens?

Most of Bill C-24 applies to everyone who holds or is eligible to hold dual citizenship, regardless of when they obtained their Canadian citizenship and even if they are born in Canada. However, the “intent to reside” provisions will apply only to those who become naturalized Canadian citizens after Bill C-24 went into effect. The government has always had the power to nullify someone’s citizenship if they can show it was obtained fraudulently. Bill C-24 requires new citizens to attest to the fact that they intend to reside in Canada as part of their application for citizenship. Accordingly, if you move away from Canada after getting citizenship, then it is at least possible that the government could claim that you lied on your citizenship application about intending to reside in Canada. We do not know how likely it is that the government would choose to do this in any given individual’s case.

No Second-Class Citizens in My Canada

7. If I don’t break the law, this won’t affect me, right?

Citizenship stripping will only be triggered in a narrow range of circumstances. But regardless of your behaviour, if you are a dual citizen or a Canadian who is eligible for citizenship in another country, you now have weaker citizenship rights than other Canadians. Others have a permanent right of citizenship in Canada, no matter what. That is no longer true for you. Even if the government never moves to take your citizenship away – and it won’t try to do this to most people – you have a second-class of Canadian citizenship that is not as strong as others. This changes what it means to be Canadian – it gives some of us different rights than others, just because of our background. In this way, C-24 affects us all.

The new provisions allow officials to take away a person’s citizenship based on serious criminal convictions in Canada, such as terrorism offences. But it doesn’t stop there. Citizenship can also be stripped for criminal convictions for similar offences that occur outside of Canada, regardless whether the regime or judicial system under which the person was convicted is undemocratic or lacks the rule of law. So for example Bill C-24 could be used to strip the citizenship of a journalist who is convicted of a “terrorism offence” without a fair court process in another country, when their “crime” was actually reporting on human rights violations by the government.

Legal experts have also warned that the list of offences that could lead to the removal of citizenship might be expanded in the future.

Citizenship should not be a licence the government can revoke for misbehaviour. We take the position that a Canadian should be a Canadian, permanently. It is the role of the criminal justice system, not elected officials or bureaucrats in the citizenship ministry, to punish people for wrongdoing. Making some people vulnerable to revocation of their citizenship devalues the very meaning of Canadian citizenship, which is something we should all be concerned about.

8. What are the next steps/what can we do? Sign the petition (2)

When Bill C-24 was passed last year, we announced our intention to challenge this law in the courts, along with our ally the Canadian Association of Refugee Lawyers. Now that these provisions are in force, we are moving ahead. The BCCLA remains committed to challenging this new law, so be sure to sign up to our email list to receive updates on our progress with this court challenge. In the meantime, share the petition with your friends and family to let them know about this important issue.

9. Can you give me advice about my specific case?

We cannot provide you with legal advice. You will need to speak with a lawyer in order to be certain about how the law will affect you personally, and to answer any questions about your current citizenship or immigration status.

10. I want more detailed information!

Our allies at the Canadian Association of Refugee Lawyers (CARL) have put together this excellent one-page legal primer, which gets into some of the details of the new law.

You can also find a post by CARL debunking some of the misinformation around this law on our website.

If you want to really delve into the details, read CARL’s detailed legal analysis of Bill C-24, submitted to the Citizenship and Immigration Committee of the House of Commons.

If you want to take a look at the full text of Bill C-24 itself, you can find it on Parliament’s website.

 

* “Canadian Passport” by chealion used under CC BY / “Second Class” stamp added to original.

All votes are equal, but some votes are more equal than others?

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The right to vote and participate in the democratic election of one’s government is one of the most fundamental of the Charter rights. For without the right to vote in free and fair elections, all other rights would be in jeopardy.

These words were written in 1989 by Beverly McLachlin, then the chief justice of the BC Supreme Court, in her ruling on the BCCLA’s groundbreaking case Dixon v. Attorney General of BC. In that decision about the unequal size of electoral districts, the Court held that giving some citizens’ votes less weight than others’ ran counter to the Charter principles of equality and democratic governance.

Postal Vote

The BCCLA believes that Bill C-50, the Citizen Voting Act, threatens the right to vote so eloquently described by our future Chief Justice of Canada, and may well be unconstitutional. This law will make it unduly difficult for Canadians living abroad to vote in federal elections. When I delivered the BCCLA’s expert testimony to the House of Commons’ Procedures and House Affairs Committee last week, I outlined our grave concerns about Bill C-50 and called for it to be rejected.

Currently, Canadians living abroad can register to vote at any time. When they register, they are entered into the International Register of Electors, a database of eligible voters living outside of Canada. Bill C-50 would scrap this database and require expat voters to register for each and every election. Critically, it would allow them to do so only during the official campaign period leading up to voting day. That is an incredibly tight time frame for Canadian voters abroad. The BCCLA sees no valid rationale for giving Canadians abroad so little time to register—and sees many serious risks in doing so. Canada’s Chief Electoral Officer has himself observed that many eligible voters might not be able to complete the multi-step registration process in time: applying for a ballot, proving their citizenship and last residency, waiting for that to be assessed by Elections Canada, waiting for the ballot to be mailed to them, and mailing it back.

Bill C-50 would require Canadians living abroad to re-prove their last residence in Canada at every single election in order to maintain their eligibility to vote. But why? If an individual has produced documentation of their last residence in Canada, why can’t that proof stand until they return to Canada? After all, Canadians who live in Canada are not expected to constantly re-prove their residency at each election; most keep that information up-to-date by opting to share the personal data on their tax returns with Elections Canada. So, why would non-resident Canadians, whose most recent address in Canada obviously can’t change, need to prove their former residency over and over again? The government has produced no compelling justification for this onerous step. The BCCLA fears that it will disenfranchise eligible voters who just haven’t bothered to keep old bills or pieces of ID containing their last Canadian address, or who have had to give up their government issued ID with address (like a driver’s licence) to apply for local ID abroad.

Ballot by Dean Shareski licensed under CC 2.0If you don’t have the documentation to prove your last Canadian address, you can have someone vouch for you. But under the new law, this too is problematic. A person can only vouch for the residency of one voter living abroad. And the person doing the vouching (the “voucher”) must have lived and still live in the same riding as the expat’s last residence (this was expanded from the original version of the bill that required the voucher to live in the same polling district – meaning the same street or sometimes the same apartment building – as the expat). The rule that no two voters can have the same person vouch for them to confirm their last residence makes no sense. One can easily foresee a situation in which the members of an expat family, who have long lived abroad and don’t have acceptable proof of their last residence in Canada, would be unable to locate enough people in their Canadian home riding to vouch for each of the family members. So maybe you’re still in contact with an old neighbour who—lucky coincidence!—happens not to have moved out of the riding. But how likely is it that, years later, you would have kept in touch with five different neighbours who could vouch for you and for your four family members? Or maybe you and your partner are still in good touch with a couple you used to socialize with back home. But what happens when one member of the couple passes away? Then there’s only one voucher left for the two of you.

Furthermore, the BCCLA takes issue with the requirement that the person who vouches for you must reside in the same riding where you lived immediately before moving abroad. Is your former neighbour’s word somehow less trustworthy because they live on the wrong side of an electoral boundary (perhaps directly across the street from your old residence)? Or because their riding recently changed when electoral boundaries were redrawn? Or, for that matter, because they happen to have moved?

vote signThis is all senseless. Given the lack of evidence of widespread electoral fraud by Canadian expats, the BCCLA takes the position that Bill C-50’s infringement of Charter-protected voting rights is unjustifiable. The systems we choose to govern ourselves should maximize citizens’ ability to participate effectively in the democratic process, not restrict it. This law needlessly makes voting more difficult and undermines basic democratic rights.

The BCCLA’s history of protecting the right to vote stretches back for decades. Right now, the BCCLA has filed for permission to join a challenge to last year’s Fair Elections Act that has been filed by the Council of Canadians and the Canadian Federation of Students in Ontario’s courts, to stop people from being disenfranchised in the upcoming federal election. Whenever the health of our democracy comes under threat, the BCCLA is committed to speaking up and protecting the rights of Canadians to vote.