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< class="what-entry-title">Calling for a Public Inquiry on Canada’s transfer of Afghan detainees to torture>
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KAJAKI, Afghanistan – British Sgt. Rab McEwan, Kajaki Operational Mentoring Liaison Team, discusses the local situation with a local resident via a translator and Afghan National Army soldier during a patrol north of the Kajaki Dam here June 17, 2008. The ANA soldiers work closely with the British soldiers of the OMLT, which provides mentorship and liaison assistance with ISAF. The ISAF soldiers are responsible for the security of the dam as well as working with the Afghan National Army and Afghan National Police to assist in security for local villages. The dam provides electricity for the majority of Helmand province and Kandahar as well as irrigation control for the region. (ISAF photo by Staff Sgt. Jeffrey Duran, U.S. Army)

Yesterday, human rights lawyer and BCCLA Board Member Paul Champ stood with coalition members from across the country to present an open letter in the House of Commons calling for the government to launch a Commission of Inquiry into the transfer of hundreds of detainees to Afghan authorities during Canada’s military mission in that country.

There is overwhelming evidence that during this mission, in spite of very clear and credible risks of torture, detainees were transferred and tortured. This suggests strongly that Canada’s conduct in Afghanistan is in serious breach of its international obligations and fails to live up to basic Charter principles.

However, no one knows exactly how many detainees who were in Canadian custody were tortured, disappeared or died under Afghan custody – partly due to the lack of a rigorous monitoring regime for the conditions of detainees, and partly due to the cloud of secrecy the previous government relentlessly maintained over this matter. Citing operational security concerns, the previous government refused to provide uncensored information to the public, Parliament, the Federal Court, and the Military Police Complaints Commission (MPCC).  

This is unfinished business of the most serious kind: accountability for alleged serious violations of Canadian and international laws prohibiting perpetration of, and complicity in, the crime of torture.

The BCCLA has maintained for years that access to documents is essential to resolve inconsistencies between government-issued statements, and those documents that have been made public thus far. We need an independent commission with full access to documents and witnesses to resolve these inconsistencies and get to the truth. There is simply no other way to learn whether Canadian officials knew whether prisoners captured by the Canadian forces were being transferred to torture.

Read the open letter here:

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< class="what-entry-title">Your MP needs to hear from you today.>
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Bottom line: The federal government of Canada has proposed assisted dying legislation that is much more restrictive than what the Supreme Court decided. The proposed legislation, Bill C-14, would leave out entire categories of Canadians, and restrict access only to those Canadians whose death is reasonably foreseeable. It is a violation of the Charter rights recognized by the Supreme Court in Carter v. Canada.

MPs will have a free vote in the House of Commons in less than 48 hours. We are already seeing that MPs who are hearing from their constituents are starting to understand just how important these changes are. Your MP needs to hear from you before then.

 

Contact your representative


Call your MP at their constituency office

noun_401509_ccUse this tool to find your MP using your area code: http://bit.ly/2322Ylm

Calling your MP at their constituency office in your community can be a better way to reach them than at their Parliamentary office in Ottawa.


Tweet your MP

noun_169354_ccConsider tweeting at your MP or finding them on Facebook. It might seem odd, but while most calls or emails will be received by staff, personal social media accounts are often still managed by your MP themselves. It can be a great way to reach them directly, and publicly. Find your MP’s twitter handle here: http://politwitter.ca/page/canadian-politics-twitters/mp/house


Email your MP

noun_106009_ccOur friends at Dying with Dignity Canada have put together a pre-written email that you can send to your MP, and the Minister of Justice.

Customize it, or send it right away: http://bit.ly/1qoSBeH

 

 

If Bill C-14 passes, suffering Canadians will be forced to return to court to fight for their rights again.

With respect, we do not accept the Justice department’s analysis that their new bill complies with the Carter decision or the Charter of Rights.  Justice department lawyers have been wrong in their analysis of assisted dying for years. Their analysis and arguments lost in Court. And they are wrong now.

They are wrong in characterizing the Supreme Court’s decision as being limited only to those who are nearing the end of their life. This case was not just about helping people to ease their dying process, but about allowing people who are not dying to escape intolerable suffering.

Bill C-14 must be amended to comply with the Carter v. Canada decision.

We are urging Parliament to amend Bill C-14 to ensure that it does not condemn Canadians to indefinite suffering simply because their death is not just around the corner.

Your voice can make all the difference. Debate on the legislation has just started in Parliament. Your MP needs to hear your voice before they vote on the proposed assisted dying bill. 

“The way government’s supposed to work”

After hearing from her constituents over the weekend, Toronto MP Yasmin Ratansi says Bill C-14 is much more restrictive than what her constituents want.

“Bottom line is I’d like to see some changes to suit my constituents’ needs and to respect the Carter (decision) as a benchmark,”  Ms. Ratansi said in an interview. “At the moment, they feel … that the bill has not met the benchmark. I don’t want people who are suffering to go to court and to (have to) challenge to get their rights.”

Toronto Liberal MP Adam Vaughan, parliamentary secretary to Prime Minister Justin Trudeau has said that the government is open to having debate on the bill and to making some changes and it has vowed to let MPs vote freely.

“I think now you’re looking at a process where Canadians, through their members of Parliament, can effect the changes they want to see … That’s the way government’s supposed to work,” Vaughan said in this CBC article.

Poll after poll tells us that more than 80% of Canadians support the right of  Canadians to make their own decisions about how much suffering to endure. This bill does not reflect their opinions, or those of the Supreme Court of Canada or the advice of the Parliamentary committee on medically assisted dying.

Members of the government are stating publicly that it is not too late to make changes to this bill to better align it with the Carter decision and the Charter of Rights, but they need to hear from you today.

We are not in the courts anymore. It’s up to you and I to convince our MPs to amend this bill.

Raise your voice. Contact your MP today.

< class="what-entry-title">>
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House of Commons Section

Find your Member of Parliament using your Postal Code

Note: The dataset provided by Elections Canada uses residential postal codes from the Electoral Boundaries Readjustment Act of 2011 for the current 338 electoral districts; therefore, postal codes associated with business or government entities, for example, may not return results. If your postal code does not return a result, or provides an unexpected result, please consult  Elections Canada’s  advanced search function.

Related Link: Styles of address – Federal dignitaries

Source : Elections Canada.

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< class="what-entry-title">Welcome Maggie Knight, BCCLA’s Operations Manager>
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Please extend a huge welcome to Maggie Knight, BCCLA’s first Operations Manager. Maggie has just joined the team last week.

Previously, Maggie ran communications and operations at RADIUS, a social innovation lab and venture incubator housed at SFU’s Beedie School of Business.

She served as President of McGill’s undergraduate student union during the Quebec student strike (2011-2012) and led the organizational development of start-up political advocacy non-profit Leadnow.ca as their first Managing Director.

Maggie holds a BASc in Environment (Honours) and Economics from McGill University, and has advocated for justice and human rights with organizations such as Journalists for Human Rights, Canadian Friends Service Committee, the Canadian Youth Climate Coalition, and Amnesty International. She enjoys working with social and environmental justice organizations to build teams, culture, and organizational infrastructure that empower everyone to do their best work.

Maggie is passionate about transforming structural injustices and building people powered movements that can hold governments accountable. Raised on Coast Salish Territories in Victoria, she lived in Montreal and Halifax before coming to call Vancouver home.

Maggie is joining the team after our dearest former Office Manager Jim Braunagel retired, after more than 15 years with us at BCCLA. We wish Jim a happy retirement!

< class="what-entry-title">Assisted dying bill: suffering Canadians left behind>
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This morning the federal government released its long awaited bill on medically assisted dying. While the legislation permits assisted dying for adults suffering from physical illnesses, and does not include some of the worst ideas recommended by opponents of assisted dying like requiring prior judicial approval – it leaves out entire categories of suffering Canadians who should have a right to choose a safe and dignified assisted death.

It is deeply disappointing that the federal government has decided to exclude people from this medical treatment in an arbitrary and discriminatory way, despite the recommendation of the all-party committee of MPs and Senators.

The Prime Minister himself has said repeatedly that the Charter of Rights is central to their vision of governing of this country. In our opinion, by excluding people who are suffering intolerably who have a mental illness, by excluding mature minors, and by refusing to respect advance requests this legislation plainly violates the Charter rights of suffering Canadians.  The result will be profound and unimaginable suffering for patients who are left out.

The Bill includes a number of troubling aspects: 

kay carter

Kay Carter, and her daughter Lee

On restricting assisted dying to those people for whom death is “reasonably foreseeable”: The Supreme Court did not require that a patient have a terminal illness. The requirement in the bill that “natural death” be reasonably foreseeable could mean that even some individuals whose situations were before the court in the Carter decision might be excluded from being able to have an assisted death. Kay Carter, who was central to our case, suffered from spinal stenosis and was not going to die from that illness. It was not clear that her “natural death” was “reasonably foreseeable” any more than every person who will eventually die. What was guaranteed was intolerable and perhaps indefinite suffering. This bill must not be interpreted and applied to prevent people like Kay Carter from accessing a medically assisted death. To do so would be an outrage that flies in the face of the Carter decision.The bill should be amended to remove this problematic language.

On vulnerable patients: It was clear in court, and clear to the all-party committee, that doctors are capable of protecting vulnerable patients who are making life and death decisions. They do so every single day. It is not necessary to prohibit entire classes of patients from accessing this treatment in order to protect vulnerable people – assessments of vulnerability and competence are routinely made in individual cases. It discriminates against and devalues people to prohibit them from making their own medical choice just because of the kind of illness they are suffering.


Screen Shot 2015-02-07 at 7.32.36 PMOn prohibiting advance requests
: The failure to allow advance requests for assisted dying will likely result in a violation of patients’ Charter rights. Physicians should be able to act on advance patient declarations requesting assistance in dying made by patients when they were capable. There is no reason why a person, who is competent, cannot make a decision now for themselves later, when they may no longer be competent or no longer able to communicate. To prohibit advance requests will have the inevitable result of trapping some individuals in intolerable suffering because they lose the ability to communicate before the moment arrives at which they would choose to access assisted dying. This will have the result of premature death by suicide as individuals, take their own lives while they are still capable of doing so, but before the point at which their suffering becomes intolerable. The existing prohibition was found to cut short lives in this same way, and was found to be an unjustified violation of the section 7 right to life as a result.

On excluding the mentally ill: Forbidding medical assistance in dying to competent people who are suffering intolerably from grievous and incurable mental illnesses will violate those people’s Charter rights, plain and simple. That’s why the Parliamentary committee recommended that people with mental illnesses should not be barred from accessing this treatment. Mental illness does not automatically render a patient incapable of making free and informed decisions about their medical care. Excluding patients suffering from mental illnesses would have the perverse result of leaving such patients with no option but to either continue to suffer intolerably or to take their own lives prematurely – the Committee recognized that this result is exactly what the Supreme Court’s decision sought to avoid for the plaintiffs in our case.

On excluding mature minors: Refusing access to mature minors who are suffering intolerably, who can be legally competent to make end-of-life decisions including refusing life-sustaining treatment, goes against existing law established by the Supreme Court of Canada. The Supreme Court has said that mature minors can’t be prohibited from making their own medical choices in a blanket exclusion – they must be assessed to determine whether or not they are competent to be treated as adults in making medical decisions. The Supreme Court has already ruled that a mature minor can’t be arbitrarily denied the right to choose to die by refusing life-saving measures – and the same reasoning applies to assisted dying. Whether it’s controversial or not is beside the point – the committee recognized that this is a simple matter of constitutional law.

On studying these issues later: This proposal sets Canadians up for years of delay before people who are excluded might have a hope of accessing a peaceful and dignified assisted death. It means that people will continue to suffer unimaginably for several years on end.

These aspects are difficult to consider, and they may be controversial to some Canadians, but Charter rights are not determined by opinion polls. Only an individual and their doctor can determine what is the right medical option for a person suffering intolerably against their will. This legislation will inevitably result in people being trapped in intolerable suffering, or left with no choice but to take their own lives prematurely in potentially dangerous situations. The existing prohibition was found to cut short lives in this same way, and was found to be an unjustified violation of the section 7 right to life as a result.

In our opinion, this legislation plainly violates the Charter rights of suffering Canadians. We will continue to fight for amendments as the Bill moves through the Parliamentary process. The Supreme Court has already ruled on this right for Canadians, the federal government must amend this legislation to respect those rights.

 

< class="what-entry-title">Montreal’s Crackdown on Dissent has No Place in a Free and Democratic Canada>
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Over the last three weeks the Service de Police de la Ville de Montréal (SPVM) has engaged in cracking down on expressions of dissent in shocking and deeply troubling ways. Almost 500 peaceful protesters in Montreal have been arrested and handed $637 fines over the course of three protests, which took place on March 15, 20, and 22, respectively. Montreal’s Bylaw P-6 is the law that has been used as the basis for these arrests. This legislation, and the attitudes that support these actions, have no place in a free and democratic Canada.

In addition, on Thursday, April 4th student demonstrator Jennifer Pawluck was removed from her home and taken into police custody for having posted a photo of anti-police graffiti on her Instagram photo profile. While BCCLA certainly does not condone the imaginary violence depicted in the graffiti – a bullet in the head of one of the Montreal police force’s public spokespersons – we do not think that someone who has merely photographed the image or shared the image on social media, without any intent of threatening violence, should be rounded up and subjected to a potential criminal prosecution.

Photo Credit: CBC

Contrary to SPVM spokesperson Sergeant Latour’s proclamation that “there is no right to protest”, protest is clearly protected by both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms under both the freedom of expression and freedom of peaceful assembly clauses.

These rights are protected in our most fundamental law because they are the bedrocks of healthy democracies. Public protest, demonstration and dissent advance critical conversations about public policy and government accountability. A significant example of this is Quebec’s Maple Spring, where an unpopular policy was overturned after hundreds of thousands of citizens took to the street to oppose it. Montreal’s crackdown on this kind of demonstration is certain to chill expression and restrict fundamental freedoms. Our democracy will be weaker for it.

While it is certainly true that rights are not absolute, limitations on constitutional rights must proportional, and no greater than necessary to achieve a pressing and compelling objective.  We believe Bylaw P-6 overreaches significantly, and in ways that would not survive constitutional scrutiny. Montreal’s Municipal Bylaw P-6 requires, among other things, that masks not be worn during protests, and that protest organizers file advanced notice of the intended route of any demonstration. It contains similar provisions to the now repealed Bill 78, which was heavily criticized across Canada. In fact, Bylaw P-6 itself has been condemned by the Barreau du Québec (Quebec Bar Association).

Face masksIn 2012 the BCCLA presented before the Parliamentary Standing Committee on Justice & Human Rights on bills that would proscribe the wearing of face masks during public demonstrations. At the time we presented very real concerns about freedom of expression, privacy, and the presumption of innocence.  Masks can be a powerful aid to unpopular speech. For those who wish to convey messages that are likely to offend governments or others, the anonymity that masks provide may encourage the uninhibited expression of views by offering security against reprisal from government, employers, family or others. Bylaw P-6 throws out these concerns, along with any possibility of anonymity in peaceful protest; a possibility of great importance to vulnerable individuals, and those who hold opinions deemed unpopular either here or abroad.  The BCCLA continues to oppose legislation that bans the wearing of masks in peaceful protests, and we call on legislators to understand the value of anonymity in public dissent.

Reports from these demonstrations say that crowd kettling began before the demonstrations had a chance to begin. On each occasion these individuals were detained for a number of hours and fined $637. The March 19th and 22nd protests were peaceful. There was no violence, no criminal act.  The reason cited for the arrests in question is the bylaw’s requirement to file advanced notice of the intended route of any demonstration. The enforcement of this unbending restriction precludes impromptu responses to unforeseeable or recent events, and imposes significant restrictions on peaceful gatherings in an unjustified way. No sufficiently compelling or pressing objective has been identified that would justify these restrictions. American courts have repeatedly ruled that First Amendment protections prohibit advance notice regulations from being used to prevent rallies or demonstrations if they are unnecessary for public safety. Canadian citizens deserve the same robust protection of their rights.

free speech zone-body2Indeed, we should be vigilant about being regulated out of our rights. In Speech Out of Doors: Preserving First Amendment Liberties in Public Spaces, U.S. legal scholar Timothy Zick describes how controlling access to space is used to silence and distort dissenting voices. He argues that the steady erosion of public space through hyper-regulation has reduced “the expressive topography” which is the site of popular democracy. In 2012, BCCLA Policy Director Micheal Vonn wrote that the location of a protest matters, saying that “[p]lace is where power is contested” and “[d]isplacement is often used to silence”.  By rounding up Canadian citizens in the streets and slapping them with massive fines, the actions of Montreal’s police force are very evidently being used to silence dissent, whatever the City’s purported rationale for this law may be.

Moreover, the use of crowd kettling, widely discredited and formally abandoned by Toronto’s police force in the wake of the shameful G20 incidents, is gravely worrying. The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has recently criticized this practice in the United Kingdom as “detrimental to the exercise of the right to freedom of peaceful assembly due to its indiscriminate and disproportionate nature”. These actions are meant not only to silence but to intimidate.

These tactics have no place in a free and democratic Canada. Montreal Bylaw P-6 must be repealed. Montreal’s police force must reinvigorate their commitment to protecting constitutional rights.

Click here to read our letter to Montreal Mayor Micheal Applebaum

< class="what-entry-title">On the Boycott, Divestment and Sanctions (BDS) movement and the narrowing of acceptable speech>
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BDS protest in Montreal, Canada. (Tadamon.ca)

BDS protest in Montreal, Canada. (Tadamon.ca)

On Tuesday, February 23, the House of Commons voted to formally condemn the Boycott, Divestment and Sanctions (BDS) campaign. The full text of the motion, introduced by the Conservatives, reads:

That, given Canada and Israel share a long history of friendship as well as economic and diplomatic relations, the House reject the Boycott, Divestment and Sanctions (BDS) movement, which promotes the demonization and delegitimization of the State of Israel, and call upon the government to condemn any and all attempts by Canadian organizations, groups or individuals to promote the BDS movement, both here at home and abroad.

While professing unhappiness about supporting the motion, the Liberals – confusingly – voted for it anyway, showing themselves a little too willing to narrow the range of political perspectives that Canada’s democracy can accommodate. The New Democrats and the Bloc Québécois both opposed the motion. In all, 229 MPs voted in favour while 51 voted against.It is not clear what (if any) the motion’s material consequences may be; it does not stipulate any specific legal penalties for those who support the BDS movement. But we know that in situations where the potential consequences of speaking out are uncertain, Canadians will be less likely to express themselves. Such vague government condemnation chills public discussion both of the BDS movement and the Israeli State more broadly.

Canada’s continuum of allowable speech on this matter is not yet so narrow as in the United Kingdom, or in France, a nation whose government seems oddly amnesic about its die-hard devotion to free expression when those expressing controversial views ne sont pas Charlie. But in 2014 the Canadian government did add “national origin” to the types of “identifiable groups” covered by our hate speech laws; as we have observed elsewhere, it surely had critique of the Israeli State in mind when it did so. Sure enough, in the spring of 2015, the government implied in an email to CBC reporter Neil Macdonald that hate speech laws could be used to prosecute BDS supporters.

Each time the government says or does something to push criticism of the Israeli State to the periphery of acceptability, the chill effect is intensified; citizens become a little more nervous that participation in BDS activities could leave them vulnerable to hate speech prosecution or attract government scrutiny of their political activities. (The surveillance of those engaged in peaceful opposition to the Enbridge Northern Gateway pipeline project presents an uncomfortable example this type of government scrutiny.) Insinuating to the public that it is better to be seen and not heard – on any issue, but especially on issues of great political significance – should never be the role of a truly democratic government.

The House of Commons is entitled to determine its diplomatic relationship to the State of Israel. It is entitled to make its own decisions about what products it purchases and what investments it makes. The extent to which our formal state apparatus supports either BDS’s goals or its tactics should be the stuff of debate amongst our elected representatives. But individual Canadians must feel completely free to express themselves on matters of public importance, whether or not their views are supported by a majority of the Members of Parliament. Constitutional rights must come before foreign policy decisions.

That BDS constitutes “the new face of anti-Semitism” – to quote a recent Memorandum of Understanding between the Canadian and Israeli governments – is taken as axiomatic by many of those who deny the BDS movement its right to exist. (It is worth noting that there are many who do not support BDS’s goals or tactics, but would still defend its right to operate unhindered by government condemnation.) It is this strategic blurring of the line between the conduct of the Israeli State and hate for Jewish people that gives rise to threats of hate speech prosecutions in Canada, and actual hate speech prosecutions elsewhere in the world.

The BCCLA is unequivocally opposed to anti-Semitism and racism in all its forms. But charges of anti-Semitism cannot become a tool for silencing peaceful civil society opposition to the policies of a foreign government. Indeed, the Canadian government itself routinely responds to the actions of foreign governments with BDS-like tactics; it currently imposes its own sanctions on 22 of them without expressing any concern about promoting hate against Russians, Liberians or Iraqis. We continue to celebrate the role we played in fighting South African Apartheid – which involved, among other tactics, the 1985 imposition of a variety of economic and political sanctions, followed in 1986 by a ban on investment. That the Canadian government sees sanctions as a legitimate diplomatic tool in these cases, but condemns Canadians who even dare speak of sanctions against Israel, should raise our collective eyebrows.

Our constitutional protections of free expression were designed to protect just this sort of controversial speech; universally inoffensive speech requires no such safeguarding. It is our belief that the range of perspectives welcomed into the public forum must be as broad as possible; actualizing the values contained in the Charter of Rights and Freedoms demands nothing less. We are fully supportive of the right of Canadians to support and promote – as well as condemn and critique – the BDS movement, and we insist that the government uphold the rights of its supporters and critics alike.

< class="what-entry-title">Cannabis at home: why today’s ruling is so important>

Marijuana- free for noncommercial reuseThe BCCLA is thrilled by today’s historic court decision declaring that the current rules imposed on medical cannabis patients are unconstitutional. The Federal Court has given the federal government six months to fix the situation.

The BCCLA congratulates all the patients, lawyers and activists who brought their advocacy efforts to this victory for patients’ rights.

Here is why today’s ruling is so important.

While Canada was  among the very first countries to acknowledge a constitutional right for qualified patients to use medical cannabis, we have nevertheless developed one of the worst medical cannabis access regimes to be found anywhere.

The current regulations prohibit patients from growing their own medical cannabis.  To people who aren’t familiar with medical cannabis issues, this may seem a perfectly reasonable prohibition.  If one of the goals is to make medical cannabis use more like that of other medications, it would seem to make sense to have access controlled and regulated like other medications.  No one is whipping up batches of Tylenol 3 in their kitchens, after all.

Patients have a constitutional right to “reasonable access” to medical cannabis.  And simply put, restricting access to the federally regulated sources would be impossible for many patients to afford.  While the development of a supply industry is an inevitable and not unworkable response to the government’s clearly demonstrated failure to provide a satisfactory supply of medical cannabis for licensed users in the past, the current system has no mechanism for cost containment or cost coverage and leaves patients subject exclusively to market forces.  Virtually no one who is receiving a disability income would be able to afford the medication.  Many people need to grow their own cannabis if they are to use it as medication.

The BCCLA opposed these new regulations when they were introduced, noting in our submission that based on the price estimates contained in the government’s own Regulatory Impact Analysis Statement, patients requiring daily medication would be paying over $500 a month for their medication and sometimes much more.   For almost any Canadian, such costs would be a formidable barrier to access, but for people on fixed disability incomes (in BC  less than a $1,000 per month),  the cost is a complete bar to access.

This wasn’t a horrible oversight on the part of the federal government. Their own documents acknowledged that a large percentage of current patients would simply be unable to access their medication under the new system.

The only thing that has prevented that happening, is the advocacy efforts that culminated in today’s court victory.   

Our congratulations again.  We are very honoured to work alongside such stalwart and effective allies.

< class="what-entry-title">Getting Charter rights right>
Anti Bill C-51 Demonstration in Toronto ( Nicolai Grut)

Anti Bill C-51 Demonstration in Toronto ( Nicolai Grut)

The BCCLA has been in court a LOT over the past several years. We’ve launched challenges to the prohibition on physician assisted dying, indefinite solitary confinement and second-class citizenship, and intervened in cases involving drug laws, mandatory minimum sentences, sex work and so much more. Sure, we did advocacy outside the courts and pressed decision-makers to amend or repeal problematic laws too, but it’s been challenging, to say the least. On many occasions, we’ve felt like there’s really no choice but to litigate if Canadians’ Charter rights are to be protected.

And we’ve had great success. The BCCLA and other Canadian human rights organizations have won in the courts, time and time again. In just the past three years, the courts have struck down prohibitions on physician assisted dying, declared restrictions on medical cannabis products arbitrary and unconstitutional, and nullified punitive and unfair mandatory minimum sentences. These victories were achieved thanks to the courage of plaintiffs, the commitment of lawyers, and the mobilization of impacted communities to demand reform. But they were also due to the fact that these laws were blatantly unconstitutional and in conflict with the highest law in the land, the Canadian Charter of Rights and Freedoms. We knew it. The communities affected knew it. And we think the government knew it too. Or at least, they should have.

A CHARTER RESPONSIBILITY

Canadian Charter of Rights and Freedoms. (Marc Lostracci)

Canadian Charter of Rights and Freedoms. (Marc Lostracci)

Our elected MPs have a responsibility to ensure that laws are consistent with the Charter, and laws that conflict with the Charter should never be passed. While there is often room for reasoned and spirited discussion about the constitutional implications of new laws, what we’ve seen recently is the stifling of that critical debate. Massive and complex laws like Bill C-51 are rammed through Parliament in a matter of months, while significant changes to criminal sentencing provisions get lumped into omnibus bills and passed without necessary and open debate. This is no way to protect rights, democracy and the rule of law.

Relying on individuals and organizations to challenge the constitutionality of laws after the fact, when the laws are already on the books and much damage has already been done, is unfair and costly, not just to the plaintiffs, but to the public at large. Meanwhile, as court cases drag on, the challenged laws remain in effect, leading to further potential rights violations. Surely it’s in everyone’s interest that the government gets it right the first time, and that only bills that pass constitutional muster get passed into law.

In his mandate letter to the new Minister of Justice, Jody Wilson-Raybould, Prime Minister Trudeau said:

As Minister of Justice and Attorney General of Canada, your overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law.  I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions.  You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

He also named review of the government’s litigation strategy as a top priority for the new Justice Minister, including ending appeals and changing positions that are inconsistent with the Charter.

AN UNDERUSED, LEGAL MECHANISM

The new government has already taken some action to implement these directives, dropping appeals on issues like access to health care and appeals for refugees, and making public commitments to change course on second class citizenship and solitary confinement. But what we haven’t yet heard is how, specifically, the government is going to ensure that its legislation complies with the Charter before it is subjected to the rigours of the court process. This step is critically needed if we are to avoid another decade of costly, time-consuming litigation. Luckily, there is an existing, if underused, legal mechanism to make sure this happens: section 4.1 of the Department of Justice Act.

Section 4.1 of the Department of Justice Act requires that every government bill be reviewed by the Minister of Justice to ascertain “whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms.” The Minister is also required to report any inconsistencies to the House of Commons. However, in the thirty-one years of the requirement’s existence, not a single report has ever been made. That’s right. While decades’ worth of government bills have presumably been scrutinized for constitutional compliance, not one has been found to be inconsistent with the Charter following this process.

VETTING STANDARD SET INCREDIBLY LOW

Turns out, the standard the government applies when it vets these bills is incredibly low. The question the government asks itself isn’t whether it’s “more likely than not” or there’s a “good chance” that the bill is unconstitutional; instead, we understand that the question they ask is whether the provision is “manifestly unconstitutional and could not be defended by credible arguments before a court”.[i] Under this interpretation of the standard, the existence of any argument that has even the slightest possibility of being argued and accepted by a court means that the provision is not “manifestly unconstitutional”. Accordingly, no report to Parliament is made so long as some argument exists, even if the likelihood of a successful legal challenge is almost inevitable.

Edgar Schmidt says the Justice department fails in its duty to warn the minister if a proposed law clashes with the Charter. (Dave Chan For The Globe and Mail)

Edgar Schmidt alleged that the Department of Justice failed to properly review constitutionality of draft legislation.
(Dave Chan/The Globe and Mail)

This has got to change. And one former Department of Justice lawyer is trying to do just that. Edgar Schmidt blew the whistle on this troubling practice, suing his own ministry and alleging that the Department of Justice was acting unlawfully by failing to properly review the constitutionality of draft legislation. He was suspended without pay and told that he could not have access to his office (he has since retired). But despite the consequences he has been undeterred, and his case was heard in Federal Court in September.

Last week we heard the leader of the legal fight for the equality of First Nations children, Cindy Blackstock, ask why it was necessary to file a legal challenge against the government of Canada to get them to treat First Nations children fairly. So too we might ask why it’s necessary for a Department of Justice lawyer to take his own ministry to court for failing to uphold the Charter rights of the people of Canada.

CHARTER RIGHTS MUST BE PRIORITIZED FROM THE OUTSET

The BCCLA welcomes early indications from our new government that suggest we may be on a different path. We’ll be ready to litigate if and when necessary, but remain hopeful that we’ll see a new approach to law-making, where Charter rights are prioritized at the outset and Parliament has the information it needs to ensure that only laws that demonstrably comply with the Charter get passed.

[i] Stanley Cohen, Senior General Counsel with the Department of Justice’s Human Rights Law Section, testifying at the House of Commons Legislative Committee on Bill C-2, 39th Parl, 2nd Sess, No 007 (15 November 2007) at 1030.

< class="what-entry-title">In praise of police judo>

Police Judo

JUDO, THE GENTLE WAY

During law school, I contemplated going on to do a Master’s Degree in Criminology at Oxford.  I even pitched the head of the department with a thesis proposal:  Police Judo.  My thesis would be about how judo is effective in reducing violence in police encounters.  The Criminology degree was a road not taken, but I remained convinced that ‘ju-do’ (‘the gentle way’) should play an important role in police use-of-force.

Turns out, some members of the Vancouver Police Department had exactly the same idea 20-some years ago.  The evolution of their work and thinking has created a judo-based program that incorporates elements of other martial arts, and is designed specifically as a practical toolkit for police use-of-force encounters.

And how is this a civil liberties issue?  Simply put, police accountability for their use of force is central to the mission of civil liberties.  Of course we want oversight and review of reports of excessive use of force by police.  But even more critically, we want police to use appropriate force in the first place.  The BCCLA is deeply interested in how police are trained in use-of-force and prepared to advocate for any program that we think ‘gets it right’.  I’ve had a look at one of the three Police Judo clubs in the Lower Mainland.  And I think they really get it right.

POLICE JUDO OBSERVED

I went to observe an introductory class held at SFU.  Some of the differences between traditional judo and Police Judo were immediately evident, starting from no bowing and no Japanese words.  But one of the key differences is that Police Judo is non-competitive.  Anyone who registers can attend (you don’t have to be a member of the police) and it’s a great workout and way to learn self-defence.  But Police Judo is not a sport you can compete in.  You can achieve higher ranks based on your knowledge and skill, but there are no tournaments.  The focus is on learning the techniques and taking care of the person you are working with, not beating them.

Police Judo session at SFU

Police Judo introductory class held at SFU. BCCLA Policy Director Micheal Vonn in front row in black.

After a big group warm-up and series of exercises, the class I attended broke into two groups.  One group did more traditional judo, learning how to do breakfalls and throws.  The other group did more policing-specific exercises and concentrated on control skills, like joint manipulation techniques, to safely take someone to the ground during an altercation.  After, the groups came together for a final session, which involved a policing scenario, so the participants could try using the techniques in a closer-to-real-life context.

While ending a fight/attack is undoubtedly something that police are called upon to do, the essence of effective and ethical use of force is to avoid the fight in the first place.  The Police Judo website notes that the process of trying to bring a person into custody is generally the time of highest risk for violence in police encounters.  So the instructors were constantly pointing out how, for example, holding a person’s arm one way gives them enough room to swing around with a kick, but changing the hold can prevent that happening.  Everyone’s safer when the fight is avoided.

PRACTICE, PRACTICE, PRACTICE

Policy Director, Micheal Vonn, with her judo club, back in the feathered bangs era.

Policy Director, Micheal Vonn, with her judo club, back in the feathered bangs era.

But don’t police learn these critically important techniques in basic policing training?  Well, some, but not all, and maybe not effectively.  It’s one thing to be shown some techniques and another to have them so engrained that you can and will actually use them.  Police Judo recognizes that this learning needs to be on-going.  Regular practice is what’s required to have the techniques effectively available in real-life, chaotic, high-stress encounters.  Reacting appropriately in an instant is almost impossible if you have to think through the steps, as opposed to responding in a way that is practically automatic because the movement pattern is so well established.  Practice doesn’t make perfect, necessarily.  But practice makes possible what otherwise gets overridden by stress and fear responses.  The establishment of Police Judo clubs allows for this practice to be developed early, by recruits and applicants, and refined over years of police service.

A DIFFERENT TOOLKIT IS NEEDED

One retired police officer was telling me that there is now so much gear/weapons that go on the standard officer tool belt that his daughter, who is now in the police force, hasn’t got a big enough waist to hold up the belt.  As the National Use of Force Framework makes clear, there are times when use of a weapon is the appropriate police response.  Police Judo is not about those times.  It is about the infinitely more common, daily police encounters, often involving extremely vulnerable individuals, for which weapons are entirely the wrong answer and a vastly different toolkit is needed.

We congratulate the Law Enforcement Judo Association in making this innovative and important training available and we hope to see the Police Judo approach expand and become an acknowledged best practice in Canadian policing.