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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Act 2015, was tabled in Parliament this spring, Canada’s leading human rights organizations called for the Bill to be withdrawn.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the serious human rights shortcomings in Bill C-51 are so numerous and inseparably interrelated that the Bill should be withdrawn in its entirety.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 Now that it has passed, if we are to see the Anti-terrorism Act 2015 repealed, it is crucial that Canadians continue to have conversations in the months to come about security, human rights, and basic freedoms – with each other and with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.

En français 

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.

It’s official – second class citizenship goes into effect

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Citizenship Ceremony by MaRS 2011 CC 2.0

Photo credit: Christie Allen Mirror Mirror Photography

Last Friday, part 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 government’s press release last week tried to justify this discriminatory law by raising the threat of “jihadi terrorism,” but Bill C-24 could easily be used against non-terrorists—for example, a journalist who is convicted of a “terrorism offence” in another country for reporting on human rights violations by the government.

Under this law, the only Canadians who can never lose their citizenship are thosSign the petition (2)e born in Canada who do not have another nationality (and are not eligible to apply for another nationality). No matter what crimes they may be accused of, these first-class citizens can never have their citizenship taken away. On the other hand, Canadians with another nationality (and those who are eligible to obtain another nationality) now have second-class status, even if they were born in Canada: under Bill C-24, their citizenship can be stripped.

Currently, citizenship can be taken away mainly on the basis of crimes that are considered threats to Canada’s national security, like terrorism or espionage, or demonstrations of disloyalty to Canada, like treason. But legal experts warn that the list of offences that could lead to the removal of citizenship might be expanded in the future. Additionally, Bill C-24 punishes criminal activity with exile – a practice abandoned hundreds of years ago that has no place in today’s democracy.

The government has created an infographiccitizenship to explain the new citizenship stripping process. There’s one change that really stands out for us in this diagram: the absence of a judge in the new system. The government seems to think that removing the judge improves the process, but we would argue that this makes the process unfair and likely unconstitutional.

Dividing people into different classes that receive different treatment under the law is unfair and un-Canadian. Bill C-24 has turned millions of Canadians into second-class citizens with reduced rights—and as a result, has reduced the value of Canadian citizenship.

We encourage you to share this petition with your friends and family and to let them know about these important changes to the very foundations of citizenship in Canada. Let’s say no to second-class citizenship!

 
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. Be sure to sign up to our list to receive updates on our progress with this court challenge.

Learn more on this topic here:

1) Challenging misinformation: Canadian citizenship law explained – May 2014

2) Information in multiple languages

3) Update: equal citizenship for all Canadians – July 2014

4)Born equal: citizenship by birth is Canada’s valuable legacy – August 2014

5) New citizenship law will be challenged on constitutional grounds, if passed, say rights groups – June 2014

 

Update: Due to an overwhelmingly high volume of comments, we have turned off the comment function for this post. However we very much appreciate your feedback, and will take the time to read and respond to the comments we have already received. In the meantime we invite you visit Facebook to engage with us and the BCCLA community on this important topic.

 

We’re hiring! Outreach and Communications Coordinator

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We’re looking for a new person to join our team. If you care passionately about civil liberties and human rights, if community building and supporter engagement get you out of bed in the morning, then check out this great opportunity!

The BC Civil Liberties Association is one of Canada’s leading social and democratic justice NGOs. With a mandate that includes work on police accountability, government transparency, drug policy reform, human rights and anti-discrimination, we are one of the most vibrant and visible advocacy groups in the country. The BCCLA is a small team with a big reach, and we want you to be a part of our work.

 1)  Outreach and Communications Coordinator

The role of Outreach and Communications Coordinator at the BCCLA requires a talented person who is ready to actively grow the outreach and community-building efforts of our organization. Are you a passionate, experienced community organizer or events planner with a love for communicating complex social issues in an engaging way? Do you have great interpersonal skills, and adeptness with new technology?

Check out the full position description here

Deadline to apply is 5:00pm Friday, June 19, 2015

If you have any questions about this position, contact Director of Community Engagement Charlotte Kingston at charlotte@bccla.org

Drug policy and human rights: concerns mounting

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United Nations flag by Flickr user sanjitbakshi Creative Commons 2.0Last week, the Canadian HIV/AIDS Legal Network led a group of Canadian organizations, including the BCCLA, in making a submission to the Office of the UN High Commissioner for Human Rights about human rights and drug policy. The submission is part of an OHCHR study of the issue in advance of the 2016 UN General Assembly Special Session on Drugs.

Drug policy reform is one of the BCCLA’s leading areas of work; we have relentlessly pushed for the adoption of evidence-based harm reduction strategies. Despite repeated official statements that the goal of drug policy is to protect and promote public health, ill-conceived and poorly-implemented drug policies continue to undermine this objective. Current drug policy in Canada rejects harm-reduction strategies such as needle and syringe programs (NSPs) and supervised consumption services (SCS). Canada’s approach not only exacerbates the harms associated with the use of drugs and controlled substances, but leads to significant human rights abuses and contributes to the risk of other preventable harms (such as the transmission of HIV and Hepatitis C).

Specific concerns identified in the submission include:

  1. Lack of access to evidence-based harm reduction programs

Current Canadian drug policy prevents access to health services which help to prevent overdose and disease. The federal government actively opposed Insite, Vancouver’s safe injection clinic, and failed to continue the legal exemption under the Controlled Drug and Substances Act (CDSA) that allowed it to operate. In 2011, the Supreme Court of Canada (SCC) said that the failure to grant an exemption violated the Charter rights of people with addictions.

The evidence in favour of Insite is clear and was recognized by the SCC: the service reduces overdose death and disease transmission, and has led to increased referrals to addictions treatment. The federal government responded to the judgment by proposing Bill C-2, which would create additional barriers to the establishment of further SCS by adding onerous requirements to the application for an exemption under the CDSA. The new process contains over twenty requirements, such as letters from the head of the local police force and provincial cabinet, as well as a report on consultations with a variety of community groups.

In addition, various levels of government have enacted bylaws and regulations preventing the adoption of other evidence-based harm reduction strategies such as methadone clinics or heroin-assisted treatment (HAT). In 2013, doctors in BC prescribed diacetylmorphine (the active ingredient in heroin) to a small group of heroin users as part of a research trial. While the study was initially approved by Health Canada, the Minister of Health condemned the trial and passed regulations criminalizing the prescriptions. In May 2014, the BC Supreme Court granted an injunction allowing patients in the research trial continued access to treatment while a constitutional challenge to the regulations proceeds through the courts.

  1. Medical marijuana

800px-Discount_Medical_Marijuana_-_2 by WikiCommons user O'Dea CC 3.0In 2013, the federal government updated its regulations for access to medical marijuana. These regulations undermine patient health as they prevent patients from growing their own medication, forcing them to buy medication from licensed operators at a prohibitive cost. As well, the government’s proposed framework for access to medical marijuana excludes proven models of supply such as community-based dispensaries and compassion clubs in favour of an untested delivery-only scheme. Finally, the constitutionality of another aspect of the regulations is currently being considered by the SCC: the regulations permit patients to access only dried marijuana, which means patients are forced to smoke in order to take their medication, as other forms of ingestion are effectively prohibited.

  1. Incarceration and health policy in prisons

Canada’s drug policies have evolved alongside the government’s “tough on crime” agenda, which includes the criminalization of drug use and the imposition of mandatory minimum sentences for drug offences under the CDSA. This combination of policies has led to increased rates of incarceration, particularly for vulnerable and marginalized groups. The SCC in R v. Nur recently struck down mandatory minimum sentences in some firearms offences, finding that these types of sentences can frustrate proportionality in sentencing. This sets an important precedent as the SCC is set to hear a challenge to mandatory minimums in relation to drug offences.

Within the prisNeedle exchange kit by Todd Huffman CC 2.0on system, governments continue to refuse to implement evidence-based harm reduction strategies. Prison-based needle-and-syringe programs have been successfully implemented in other jurisdictions, where evidence shows that they result in improved health outcomes such as fewer overdoses and reduced transmission of diseases.

  1. Discrimination and equality

Current drug policy has a disproportionate impact on vulnerable and marginalized populations such as indigenous people, racial minorities, and people with addictions. These individuals are overrepresented in the prison population. They suffer from a lack of access to health services as a result of their vulnerability, which is only exacerbated by the stigma they face as drug users. The criminalization of drug use also contributes to marginalization, as having a criminal record can seriously impact a person’s access to housing and employment, their ability to travel, and their parental rights. All of these factors worsen systemic discrimination and further undermine the health and human rights of vulnerable groups.

Recommendations

The BCCLA continues to advocate for drug policy reform in Canada. The 2016 United Nations General Assembly Special Session represents a unique opportunity to identify and address the human rights consequences of our current approach. The High Commissioner for Human Rights should continue to engage civil society and experts in an effort to identify mechanisms for greater human rights oversight of drug policy.

 

Remembering Alan Borovoy, 1932-2015

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Alan BorovoyWith a twinkle in his eye, a sharp wit, and a fierce delight for argumentation, Alan Borovoy, O.C., LL.D., was one of Canada’s premier fighters for civil liberties and human rights. From almost the time of its founding in the 1960s through to the last decade, Alan was the general counsel of the Canadian Civil Liberties Association. He brought creativity, intelligence, and passion to his advocacy and to the approach of the CCLA.

John Russell, a board member and former executive director of the BCCLA, wrote that “Alan was an outstanding civil libertarian. He was an articulate and passionate defender of civil liberties and had a national presence at a time when civil liberties organizations were on the margins of public thought in Canada. He was also quite a lot of fun… He will be remembered as a major figure in the advancement of civil liberties in this country.”

Alan found a way to bring humour to almost every issue he worked on. While the issues he worked on were serious, he always said that people fighting for rights mustn’t take themselves too seriously. He used humour because it was fun, and he used it skilfully to gently disarm adversaries in argument.

In the fight against discrimination and racism, Alan was there. In the fight to protect free speech, Alan was there. In the fight to rein in the excesses of police, Alan was there. In the fight to protect the rights of workers, Alan was there. In so many of the key fights for rights and civil liberties in Canada, over so many years, Alan was always there.

The board and staff of the BC Civil Liberties Association are saddened by the loss of Alan Borovoy, a happy warrior in our common and continuing cause.

FINTRAC: the national security conversation that’s flying under the radar

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daniel-therrien

Privacy Commissioner Daniel Therrien

While eyes are focused on the rapid advance of Bill C-51, comparatively little light is being shone on some of the specific components of Canada’s national security and intelligence agencies that could be the subject of even further changes in law and policy.  Very quietly, the Standing Committee on Finance is doing a study of the “cost, economic impact and best practices to address the issue of terrorist financing both here in Canada and abroad”.

The BCCLA was asked to present to the Committee on the subject of terrorist financing and we took the opportunity not only to press the Committee on the dangerous failures of accountability in this sphere of national security operations, but also to highlight how Bill C-51 will make the situation infinity worse.

You can access our opening remarks from the hearing here.

Here is some of what we said to the Committee:   

FINTRAC (the Financial Transactions and Reports Analysis Centre) is a key component of Canada’s strategy with respect to deterring and detecting terrorist financing.

The Arar Inquiry’s policy phase remains the most comprehensive assessment of national security accountability that Canada has ever undertaken and, as you will know, the Inquiry’s recommendations included a consolidated review process for national security and intelligence agencies that would include FINTRAC.  However, no review mechanism has been created.

Meanwhile, audits of FINTRAC by the Office of the Privacy Commissioner of Canada (OPC) have consistently demonstrated deeply troubling over-collection and retention of personal information.  And while FINTRAC itself maintains that one of its primary safeguards for privacy is its independence from law enforcement, Bill C-51 if passed would make that “independence” all but fictional.

As the Privacy Commissioner has just stated in his submission to the Senate Committee on National Security and Defence, Bill C-51 would make available to  17 federal departments and agencies, including FINTRAC, the RCMP, CSIS, CSEC and the CRA,  potentially all the personal information that any department may hold on Canadians.  All the 17 federal departments would be in a position to receive information about any or all Canadians’ interactions with government in what would be an unprecedented blurring of the mandate of the 17 different institutions.

We anticipate a steady stream of legal challenges if these proposed powers are enacted, and these developments make very pressing the need for an assessment of FINTRAC’s proper mandate and role in relation to other national security agencies.  And this necessitates a review of its efficacy.

The OPC’s audit reports echo the assessments on efficacy cited in the 2013 Report of the Standing Senate Committee on Banking, Trade and Commerce entitled “Follow the Money: Is Canada Making Progress In Combatting Money Laundering and Terrorist Financing? Not Really.”

There would appear to be a dearth of information to accurately assess whether the Canadian regime is meeting its objectives.  No empirical evidence is being generated to suggest that the regime is successfully accomplishing its mission.  To the contrary, what little evidence is available could only suggest either that there is considerably less terrorist financing than feared, or that the regime is not proving very effective at addressing it.

And yet, much of the response to this situation of genuinely failing to understand the need and efficacy of the regime is simply repeated urgings for more invasive powers, broader disclosures of sensitive, highly prejudicial personal information, more onerous administrative burden on the private sector, and more resources for FINTRAC and agency partners.

FINTRAC, as part of our national security apparatus, works with some degree of necessary secrecy.  But currently, that secrecy is inadvertently allowing for a failure of accountability.  There is no dedicated review body that can tell us whether FINTRAC is operating properly, successfully, and legally.  We say, this is a critical juncture for a long-overdue study and sober assessment of what the genuine need is and the most efficacious, accountable and rights-protective means of addressing that need.

 

Bill C-51 submissions, redux

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House of Commons seatsThis week, the Senate’s Standing Committee on National Security and Defence continues its pre-study of Bill C-51, while an amended version of the Bill proceeds to third reading in the House of Commons.

The House of Commons Standing Committee on Public Safety and National Security (“SECU”) made just four amendments to the omnibus bill, despite hearing witness after witness express serious concerns about the Bill and its impact on basic rights and freedoms. We don’t think these amendments even begin to address the fundamental flaws in the Bill, and discuss why in our submissions to the Senate. These submissions also include our take on some of the comments made by government lawyers at the clause-by-clause review of the Bill at SECU – comments which deal with the scope of the new CSIS powers; accountability in cases where information sharing by government results in harm to individuals (as we saw with Maher Arar); and whether the Federal Court of Canada is being asked to authorize unconstitutional activities by CSIS agents under the proposed warrant regime.

Here’s why SECU’s amendments don’t change our core concerns about Bill C-51:

Occupy Montreal Protest by Wikimedia user Justinform, Creative Commons 3.01. The amended version now explicitly excludes all “advocacy, protest, dissent and artistic expression” from the definition of “activity that undermines the security of Canada” in the proposed Security of Canada Information Sharing Act (“SCIS Act”). (This is a change from the previous exemption, which was limited only to “lawful advocacy, protest, dissent and artistic expression.”) While this amendment is welcome, we remain concerned that the broad definition of security will continue to capture expressive activities – as we have said before, activities undermining the “security” of Canada under the proposed SCIS Act would include activities that relate to not just public safety, but to public life in general. Moreover, recent examples show that government already takes a very wide view as to what constitutes a threat to Canada’s security.

2. The amended version contains new language regarding the scope of information sharing under the proposed SCIS Act. Section 6 of the proposed Act, as it was originally tabled in the House of Commons, read as follows:

For greater certainty, nothing in this Act prevents a head, or their delegate, who receives information under subsection 5(1) from, in accordance with the law, using that information, or further disclosing it to any person, for any purpose.

The amended version of Bill C-51 now contains a revised Section 6, which reads as follows:

For greater certainty, the use and further disclosure, other than under this Act, of information that is disclosed under subsection 5(1) is neither authorized nor prohibited by this Act, but must be done in accordance with the law, including any legal requirements, restrictions and prohibitions.

In our view, the revised language is a distinction without a difference. While the formulation has changed, the substance of this clarification is the same: any receiving agency is free to further disseminate information to any person, for any purpose, so long as it is “in accordance with the law.”

A_corridor_of_files_at_The_National_Archives_UKThe concerns raised by Professors Roach and Forcese with respect to the original Section 6 have equal application here: existing law governing information sharing is thin, and to the extent that it exists in legislation like the Privacy Act, it is “riddled with exceptions and limitations” to its reach. For example, s. 8 of the Privacy Act sets out 14 different exemptions to the general prohibition against disclosure of personal information without the consent of the individual to whom that information relates.

One such exemption allows personal information under the control of a government institution to be disclosed for “any purpose where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.” The public clearly has a strong interest in ensuring that Canada’s security is protected, but when Canada’s security is conceived of in terms as broad as those set out in the SCIS Act, the range of activities that could serve as justification for massive information sharing is dramatically expanded. And when the aim is to identify threats (as opposed to tracking known threats), there is nothing in this legislation and in the existing privacy legislation to prevent government institutions from either requesting or offering up entire databases for review by any of the other (at present, 17) scheduled institutions.

3. The third amendment recommended by SECU modifies the requirements imposed on airlines to give effect to the new no-fly regime under the proposed Secure Air Travel Act. We’ve set out our concerns on this proposed Act before, so we will not repeat them here. Nothing in this amendment – designed to protect the airlines and to mitigate their concerns about their ability to enforce the no-fly list – addresses our basic questions regarding the efficacy of no-fly regimes in general, or our serious concerns about the procedural infirmities specific to the no-fly scheme proposed in this Bill.

CSIS sign by Sean Kilpatrick, CP4. The final amendment relates to the proposed “threat disruption” powers for CSIS, and states that Bill C-51 is not giving any “law enforcement” powers to CSIS. This amendment gives us no comfort. “Law enforcement” is not a legal term, and it is unclear what it actually means in this context. Perhaps CSIS may not have the power to “arrest” and “jail,” but as the Department of Justice acknowledged during SECU’s clause-by-clause review, these new disruption powers would permit CSIS to “take measures to interfere with a person’s movement” – in other words, to capture and detain. The Department of Justice also noted that “rendition” or “removal to another state” are not “law enforcement powers,” which means that such practices remain available to CSIS as “threat reduction” measures. As Professors Roach and Forcese observe:

If CSIS wishes to detain or interrogate, it will do so for threat disruption purposes, not “law enforcement.” The government’s peculiar language does precisely nothing to dispel concerns about a system of CSIS “security detention” or “detention for security interrogation.” Given the disturbing experience in other jurisdictions after September 11, 2001, the absence of an express, emphatic bar on detention is alarming.

The range of activities authorized by this “threat reduction” power includes activities we traditionally think of as belonging to the police – detaining and holding individuals; interrogating them while in detention. As a result, we would say that despite the assertion that CSIS is not being granted “law enforcement” powers, it is clear that the new “threat reduction” power is, for all intents and purposes, a policing power.

We’ve said it before, but we’ll say it again: the government has simply not made its case for why this Bill is necessary and good for national security. And it has done nothing to dispel any of the concerns raised by us and so many others about its legality and constitutionality. This Bill is fundamentally flawed, and cannot be salvaged by any amendment, let alone these four here.

Read our submissions in their entirety here.

 

Elephants in the court

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The good news first

Yesterday, the Supreme Court of Canada struck down mandatory minimum sentences for crimes involving prohibited and restricted firearms in its ruling on R. v. Nur and R. v. Charles. 

Pro bono lawyers Gerald Chan and Nader HasanThe BCCLA has long opposed the use of mandatory minimum sentences, and intervened in these cases. The BCCLA was represented before the Supreme Court by pro bono counsel Nader Hasan and Gerald Chan of Ruby Shiller Chan Hasan Barristers.

Writing for the majority, Chief Justice McLachlin confirmed the viability of the “reasonable hypothetical” for assessing whether a mandatory minimum sentencing scheme violates the Charter prohibition against cruel and unusual punishment, and the decision provides a useful blueprint for challenging mandatory minimums in future cases.

The Court also made important observations concerning mandatory minimum sentences. First, it reaffirmed the role of judges in sentencing decisions, emphasizing that ensuring that an offender serves a proportionate sentence “is the function of one person alone – the sentencing judge.” As the BCCLA argued in these cases, “proportionality is the fundamental principle in sentencing. It requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility (moral blameworthiness) of the offender. The proportionality principle serves a limiting or restraining function and ensures that the offender’s sentence is equivalent to his or her moral culpability, and not greater than it. It is a simple yet compelling premise – derived from the ‘just deserts’ principle – that the punishment should fit the crime.”

A blunt instrument

The Court highlighted how mandatory minimum sentences have the potential to frustrate proportionality in sentencing, and set out the harms that can flow from mandatory minimum sentencing schemes.

Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

The Court acknowledged that mandatory minimums give Crown prosecutors “a trump card in plea negotiations, which leads to an unfair power imbalance with the accused and creates an almost irresistible incentive for the accused to plead to a lesser sentence in order to avoid the prospect of a lengthy mandatory minimum term of imprisonment. … We cannot ignore the increased possibility that wrongful convictions could occur under such conditions.

Further, the Court appeared unconvinced that mandatory minimums actually work, finding that the government “has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes,” and that “empirical evidence suggests that mandatory sentences do not, in fact, deter crimes.

These are powerful observations from the Chief Justice, and reflect many of the same concerns raised in the BCCLA’s comprehensive report on the social and legal implications of mandatory minimum sentencing, which we published last year.

Now for the not-so-good news

The primary legal dispute here is what constitutes a “reasonable hypothetical” offender for the purposes of the s. 12 Charter analysis. Under the Supreme Court of Canada’s existing jurisprudence, the test for whether a mandatory minimum sentencing scheme violates the prohibition against cruel and unusual punishment is in two parts. First, a court must determine whether the mandatory minimum imposes a grossly disproportionate sentence on the specific offender who is before the court. If so, then the punishment is cruel and unusual in violation of s. 12 guarantees. If not, then the court must undertake a second inquiry, and determine whether the sentence is grossly disproportionate for a “reasonable hypothetical” offender. If so, the scheme violates s. 12. In both Nur and Charles, the claim was that the mandatory minimums would be grossly disproportionate for the “reasonable hypotheticals,” and so much turned on how the “reasonable hypothetical” was characterized.

The SCC chose to deploy as its reasonable hypothetical individuals who had committed what were, in essence, licensing offences – gun owners who make mistakes about where and how their guns should be stored and transported. It found that the mandatory minimum (three years for first time possession offences) would be “grossly disproportionate” for this class of offenders, given that their offences involved “little or no moral fault” and “little or no danger to the public.” Thus, the scheme was struck down based on the mandatory minimum sentence that would be imposed on this hypothetical offender. The Court’s approach here is problematic for two reasons.

First, despite what the headlines might suggest, the Court’s decision does not do away with mandatory minimums for gun crimes entirely. It simply found that the mandatory minimum terms for possession of prohibited and restricted firearms are excessive for so-called licensing offences. Parliament can simply redraft the provisions to exclude the licensing offences and the mandatory minimums can remain intact. (In fact, the majority’s judgment makes a suggestion as to how this can be accomplished at paragraph 117.)

Elephants in the court

Second, the Court’s approach ignores what Nader Hasan, one of the BCCLA’s lawyers in these cases, has called the two elephants in the room: race and immigration consequences.

Take a minute to conjure up a mental image of the SCC’s hypothetical offenders: “the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored”; a woman who inherits a firearm without understanding the license requirements, or a woman who “finds herself in possession of her husband’s firearm and breaches the regulation.” It’s unlikely that you’ve conjured up the image of a young black or Aboriginal male. Yet the constitutionality of the mandatory minimum sentence must be assessed against such hypothetical offenders as well, taking into consideration systemic discrimination in Canada’s criminal justice system, the effects of racism in Canadian society (both historic and present-day), and how alternatives to incarceration may better achieve both rehabilitative and public safety goals for such offenders. Whether the mandatory minimum is a proportionate sentence for these hypothetical offenders, though, was not considered by the Court.

The deportation of Hussein Nur

Canada Immigration Officer Badge. Image credit: Flickr user Dave Conner, Creative Commons License 2.0.

And what do we mean by “immigration consequences”?While this issue is not even mentioned in the Supreme Court’s judgment, it is – in significant part – what was driving Mr. Nur’s appeal of the mandatory minimum sentence. As the Court’s decision sets out, Hussein Nur was 19 years old and attending high school at the time of his offence. He was a first time offender and in the words of one of his teachers, “an exceptional student and athlete … an incredible youth.” His guilty plea to one count of possession of a loaded prohibited firearm subjected him to the statutory minimum term of three years. Ultimately, he was sentenced to 40 months, which was calculated as time served, given his lengthy pre-trial detention.

Those details of Mr. Nur’s case are recounted in the Supreme Court’s judgment. What the Court does not mention is the effect that the mandatory minimum had on Mr. Nur’s immigration status. His family fled Somalia when he was four years old, and they were all granted refugee status in Canada. While he has permanent residence status in this country, he is not a Canadian citizen. Under the Immigration and Refugee Protection Act, a sentence of three years makes him ineligible to remain in Canada, and he would be deportable to Somalia – a country he hardly knows, and from which his family fled as refugees.

Yet the risk of deportation – which should have played an important role in Mr. Nur’s sentencing – was not considered by the Chief Justice in her decision. While the mandatory minimum sentencing scheme for gun offences was struck down as unconstitutional, Mr. Nur’s individual sentence was upheld. We don’t know yet if he will be deported, but he could be. We would argue that any assessment concerning the “gross disproportionality” of a sentence must consider all the consequences flowing from the sentence, and not merely the length of incarceration.

What this means is that the Court has given Parliament a roadmap for rewriting this particular mandatory minimum without having to address what is most troubling about it – its grossly disproportionate impact on the vulnerable and the racialized. So while there is much to celebrate in today’s decision, there is still much work left to do to ensure that our criminal justice is fair and just.