Menu
< class="what-entry-title">Reflections on the MMIWG Police Hearings>
Posted on

Photo Credit: Meghan McDermott

This June, BCCLA Policy Director, Micheal Vonn, and I participated in the National Inquiry into Missing and Murdered Indigenous Women and Girls, in Regina, Saskatchewan.[1] Families of missing and murdered Indigenous women and girls, and the MMIWG Coalition (of which the BCCLA is a member) have highlighted their disappointment with the deeply flawed Inquiry process.[2] With that in mind, I wanted to share some thoughts about our experience in Regina while at the Institutional Hearings on Police Policy and Practices.

Our participation at the hearings was grounded in collaboration with friends and allies.  We were one of more than forty parties in attendance and we worked alongside Indigenous and women’s organizations, both big and small, from across the country.  It was an honour to form and strengthen alliances with these groups, which was essential for sharing knowledge and ensuring that key issues that were otherwise neglected were raised in cross examination.

Another key development was the apology from RCMP Commissioner Brenda Lucki to the families and communities of the missing and murdered women and girls.  At the beginning of her testimony, Commissioner Lucki said “on behalf of myself and my organization, I am truly sorry for the loss of your loved ones and for the pain this has caused you, your families, and your communities. I’m sorry that for too many of you, the RCMP was not the police service you needed it to be during this terrible time in your life.” Some attendees were hopeful that the apology marked a shift in relations between the RCMP and families of missing and murdered Indigenous women and girls.

In our cross examination of Investigative Policies and Practices panel witnesses, we explored possible gaps between policy and actual on the ground practice.  For instance, we examined what recourse a family or community member has if they are concerned that police are not following policy, and whether they would even be able to detect that proper procedures are not being adhered to.

In asking Commissioner Lucki how the RCMP’s bias-free policing policy is evaluated, we learned that there is no systemic data collection to evaluate whether the policy is achieving its goal of providing equitable policing services for all people.  Commissioner Lucki said that the RCMP should consult with Indigenous communities about whether ethnicity or race should be recorded in RCMP forms in order to properly measure the impacts of bias-free policy.

In collaboration with the MMIWG Coalition we are continuing to monitor the progress of the Inquiry. Recently, the National Inquiry announced that more expert or institutional hearings will take place between September and the end of the year.  We are waiting to find out more details about the hearings before deciding if we’ll participate, so stay tuned in the coming months.

To learn more about the proceedings, watch recordings of the hearings here.

 


[1] I can briefly describe how these hearings work, as it isn’t a familiar process for many of us.  The hearings we participated in featured three panels of witnesses over five days.  The witnesses represented a variety of policing institutions, including the RCMP, the OPP and Sûreté du Québec. Each panel had a specific theme and featured witnesses that were called upon to give evidence.  Each witness on the panel has a lawyer beside them who asks them questions for 40 minutes, which allows the witness to provide information as “evidence” to the four Commissioners. After all the witnesses have given their testimony and entered materials such a institutional policies as “exhibits” on the public record, parties with standing, such as the BCCLA, have a specific amount of time to cross-examine the witnesses. At the police hearings there were over 40 parties with standing which means that each party was allotted roughly 10 minutes to cross-examine any or all witnesses on the panel.  After the parties have finished their cross-examinations, the witnesses are re-examined by their lawyers before the Commissioners have an opportunity to ask each panelist any questions.

[2] National inquiry six-month extension “too little, too late,” say Coalition members; Press Release: Coalition on MMIWG disappointed by Interim Report

 

< class="what-entry-title">We’re hiring an Executive Coordinator!>
Posted on

The BCCLA is seeking a highly organized professional who demonstrates excellent judgement and a commitment to civil liberties and human rights to provide coordination support to our Executive Director and across our team.

As part of our Operations team and working closely with our Executive Director, this full-time role will add crucial capacity to our work, helping processes to move efficiently and elevating the effectiveness of the rest of the team. The ideal candidate enjoys creating order, problem solving in a fast-paced environment, navigating process, maintaining documentation, and being part of a small and gutsy team working on big issues.

Applicants with Cantonese and/or Mandarin language skills are particularly encouraged to apply.

The BCCLA is a small team with a big reach, and we want you to be part of our work.

The BCCLA is committed to building an inclusive and diverse workplace and strongly encourages applications from all qualified applicants. Applicants from traditionally underrepresented or marginalized groups including Indigenous people, people of colour and LGBTQ+ people are welcome to self-identify, should they feel comfortable in doing so, in their cover letter.

Applications must be uploaded by the end of the day on July 8, 2018.

Click here to apply. We can’t wait to hear from you!

< class="what-entry-title">Canadian Government Denies Experiential Truth of Solitary Confinement>
Posted on

Today I find myself questioning the power of speaking truth to government. Incarcerated people bravely stepped forward and spoke the truth of their lived experiences in our recent solitary confinement trial. Although they testified separately, their voices often mirrored each other, together presenting the Court and the Canadian government with the torturous facts of solitary confinement.

Art by Catherine Hart

After listening to the atrocities happening inside Canadian prison cells – echoed in the 1,123 days Bobby Lee Worm spent isolated, and the memory of Christopher Roy, a young life lost while locked away in solitary confinement – the BC Supreme Court struck down the government’s administrative segregation laws, and ordered an end to prolonged, indefinite solitary confinement.[1]

Yet the federal government is appealing to continue using prolonged, indefinite solitary confinement in prisons across Canada.

The BC Supreme Court found that solitary confinement violates the Charter rights of all incarcerated people subject to it by placing them “at significant risk of serious psychological harm,” including cognitive dysfunction, hallucinations, paranoia, hopelessness, self-harm, and suicide.[2]

The Court found these symptoms of solitary confinement are worse for mentally ill and disabled people, who should never be locked away in isolation.[3] The Court could not have been clearer when it spoke directly to the federal government on this point:

“Of primary importance is for the Government […] to recognize the size and importance of the mentally ill, cognitively impaired, and potentially self-harming and suicidal contingent in Canada’s penitentiaries. There needs to be a recognition that this is a serious health issue.”[4]

Faced with these proven harms and health risks, the Canadian government has chosen to fight an appeal that ignores the experiential truth of solitary confinement.

In defending solitary confinement, the federal government chooses to fight for a practice that the United Nations has found amounts to torture.[5] The government defends solitary confinement in the face of over four decades of repeated calls for its reform, including those made following the death of Ashley Smith in a solitary cell in 2007.[6] The federal government was found to be responsible for Ms. Smith’s homicide, and in 2015 the current government promised to implement the calls for reform to solitary confinement that resulted from her death.[7] Yet, the federal government now defends the very same type of isolation.

The government’s decision to appeal tells me that the experiential truth of solitary confinement will continue to be denied unless we amplify the voices of those who have survived solitary, the isolated voices of those still trapped in solitary, and the forever silenced voices of those who have lost their lives in solitary. We must speak their truth together, loudly, again and again:

Solitary confinement is torture, and we will not stand for it.


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

[2] Ibid, at paragraphs 247, 264-5, 276 [Emphasis added].

[3] Ibid, at paragraphs 247, 48, 522, and 609.

[4] Ibid, at paragraph 523 [Emphasis added].

[5] Ibid, at paragraphs 50‑52, 57.

[6] Ibid, at paragraphs 26, 28‑30, 32, 36‑40, 41‑43 45‑46.

[7] Jury Recommendations of the Coroner’s Inquest Touching on the Death of Ashley Smith issued December 2013; Minister of Justice and Attorney General of Canada Mandate Letter dated November 12, 2015

< class="what-entry-title">We’re hiring a litigator!>
Posted on

The BCCLA is seeking a litigation lawyer who is passionate about using their legal skills to uphold civil liberties and human rights in Canada.

The Litigation Staff Counsel will develop and litigate impact-driven cases on a wide range of issues at the trial and appellate levels of court.

With a mandate that includes work on police accountability, government transparency, voting rights, prisoners’ rights, national security issues and more, we are one of the most vibrant and visible advocacy groups in Canada.

Responsibilities include developing and litigating impact‑driven cases on a wide range of issues at the trial and appellate levels of court, and acting for the BCCLA in test cases, often in partnership with pro bono lawyers. The Litigation Staff Counsel will represent the BCCLA publicly through speaking engagements and media interviews, and collaborate with staff in other departments to set goals and implement strategies that advance the BCCLA’s priorities.

The BCCLA is a small team with a big reach, and we want you to be part of our work.

The BCCLA is committed to building an inclusive and diverse workplace and strongly encourages applications from all qualified applicants. Applicants from traditionally underrepresented or marginalized groups including Indigenous people, people of colour and LGBTQ+ people are welcome to self-identify, should they feel comfortable in doing so, in their cover letter.

Applications must be uploaded to this recruiting site by the end of the day on July 16, 2018. We will be reviewing applications on a rolling basis, so it is to a candidate’s advantage to apply sooner rather than later.

Click here to apply. We can’t wait to hear from you!

< class="what-entry-title">Seeking Expeditious Justice on Behalf of Suffering Canadians>
Posted on

BCCLA at the BC Court of Appeal on May 29, 2018

In 2015, the BCCLA won a historic victory in Carter v. Canada when the Supreme Court of Canada unanimously struck down the laws prohibiting physician-assisted dying. The Court found it unconstitutional to deny an assisted death to any capable, adult persons who suffer unbearably from serious, unalleviated medical conditions. In response, Parliament passed legislation in June 2016 that leaves many seriously ill Canadians unable to access physician-assisted death – taking away the right that was granted to them by the Supreme Court in Carter. As a result, only individuals who are already approaching their natural death are able to access medical assistance to die. The effect of the government’s laws is that the longer you will live in unbearable suffering, the less likely you are to be eligible for a medically assisted death.

Julia Lamb

Shortly after the new legislation was passed, the BCCLA filed Lamb, a claim against the Attorney General of Canada challenging the constitutionality of the new assisted dying legislation. Given the similarities between the Lamb and Carter cases, we seek to rely on many of the findings made in Carter, rather than re-litigating the same issues over again. A key finding in Carter established that the potential vulnerability of individuals to coercion can be reliably assessed by doctors on a case-by-case basis.

This finding formed a crucial part of the 2015 Carter decision, and directly contradicts the government’s current assertion that there are whole groups of people who are too vulnerable to be allowed a medically assisted death (i.e. any person who is not already approaching their natural death).

If we are successful in our efforts to bind the government in the Lamb litigation to some of the findings from Carter, it would mean a shorter, more timely and cost-efficient trial. In this case, time matters dearly because every day that passes is another day Canadians are trapped in intolerable suffering. In October 2017, the Supreme Court of British Columbia found that the government should be allowed to introduce evidence even if that evidence retreads ground already covered in Carter. We appealed that decision, and a hearing at the British Columbia Court of Appeal was held on May 29, 2018.

The BCCLA Appeals

Jay Aubrey speaks outside of the Law Courts regarding the BCCLA appeal. (Josh Paterson, Jay Aubrey, Caily DiPuma, and Hilary Chu (L-R). Photo by Iman Baobeid

At the hearing, the BCCLA argued that Canada should be prevented from forcing the plaintiffs to reargue points already proven in Carter. Carter was recently finally decided, dealt with many of the same issues as the Lamb case, and involved the same parties: the BCCLA and Canada. Without new, fresh evidence – and out of respect for the finality of the Supreme Court of Canada’s decisions – the Carter conclusions should be allowed to stand. Critically, we don’t deny that the government should be able to defend their new assisted dying legislation, or introduce new evidence to refute previous findings if that evidence was not available during Carter. But we assert it would be an abuse of process, and inefficient use of public resources and court time to force the BCCLA to re-litigate the central Carter findings.

Underlying the appeal is a concern for the future of public interest litigation like the Lamb challenge. The BCCLA is a non-profit association with a fraction of the resources of the federal government. Public interest litigation, and the important rights-protecting purpose it serves, would be significantly impeded if every time a law is declared unconstitutional the government can pass a similarly problematic law, forcing vulnerable plaintiffs to go back to court in order to ensure the government’s compliance with the initial ruling. For BCCLA, this appeal is about fairness, compassion, and protecting the public’s ability to hold government accountable to all of our fundamental rights and freedoms.

< class="what-entry-title">Welcome to Our 2018 Summer Legal Interns!>
Posted on

Graeme Cook and Hilary Chu (L-R). Photo by Iman Baobeid.

Please extend a warm welcome to our Summer Legal Interns: Graeme Cook and Hilary Chu! We are very excited to have them join our team this summer.


Hilary Chu

Hilary is entering her third year of the combined common law and civil law program at McGill University, where she previously completed a B.A. in Economics and Political Science. At law school, she served as Co-Director of the International Refugee Assistance Project’s McGill Chapter, and represented students accused of disciplinary offences through the Student Advocacy program. Prior to law school, Hilary worked in multilateral diplomacy, serving as a member of the Canadian delegation to the 31st session of the UN Human Rights Council in Geneva, Switzerland.

Graeme Cook

Graeme Cook is currently pursuing his law degree at the University of British Columbia. He holds a Master’s degree in Public and International Affairs from the University of Ottawa and an undergraduate degree in Political Science from the University of British Columbia. Graeme has a variety of experience in the public and non-profit sectors, including at the Office of the Toronto Ombudsman, Dundas West Neighbourhood House in Toronto, the Centre for Economic and Social Rights and the federal government. In the legal field, he has experience working at the Law Students Legal Advice Program and the Indigenous Community Legal Clinic. He looks forward to pursuing a career in Aboriginal, criminal or public interest law.

< class="what-entry-title">Welcome newly elected Board Directors>
Posted on

Please extend a warm welcome to our five newly elected members of the Board of Directors!


Hasan Alam

Hasan Alam received his Juris Doctorate in Law from the University of Calgary in 2011 and was called to the bar in British Columbia in 2012. Prior to law school, he worked in Cairo, Egypt for the Canadian International Development Agency (CIDA). His role at CIDA involved working with local NGOs around issues of human rights, gender equality, and labour rights. While in law school, Hasan worked as a summer intern at the West Coast Women’s Education and Legal Education Fund. As an intern, he had the opportunity to work on the Polygamy Reference case, which went before the Supreme Court of BC. Hasan articled at the BC Public Interest Advocacy Centre, through which he gained experience in poverty and human rights law. He also had the opportunity to facilitate public legal education workshops across British Columbia, which focused on marginalized communities learning more about their rights.

Hasan currently works as a Staff Lawyer at the BC Government and Service Employees Union, where, he advocate on behalf of workers and represent them in labour arbitrations and mediations. He is also the supervising lawyer for the Abbottsford Community Services Migrant Worker and Poverty Law Clinics. These programs are aimed at providing pro bono legal advice to individuals who are either temporary foreign workers in the lower mainland or cannot afford legal services otherwise. Hasan is also a founding member of Critical Muslim Voices, an organization dedicated to advocating against Islamophobia in Canada and creating spaces for dialogue and community activism.

Sarah Hamilton

Sarah Hamilton is a lawyer on Salt Spring Island. Sarah obtained her Juris Doctor from the University of Toronto, Faculty of Law (2011) and completed articles in Toronto in criminal defence. Prior to that, Sarah was awarded a Master of Arts in Theory, Culture and Politics from Trent University (2009) and a Combined Honours Bachelor of Arts in English Literature and Philosophy from the University of British Columbia (2000). Sarah is a member of the Board of Directors of Island Women Against Violence on Salt Spring; she is currently Chair of the Governance Committee, and served briefly as Chair of the Board. Sarah’s M.A. thesis was a Foucauldian genealogy of security certificates, the legal mechanism used by Canada to incarcerate individuals, usually Muslims, indefinitely without charge on the grounds of national security. Sarah traced security certificates to their roots in the F.L.Q. Crisis of 1970 Québec and unearthed a discourse of national security at the Cabinet level and within Canadian media that, she argued, relied on and fomented racism to secure “economic security” for Canada (which tended to involve capitulating to U.S. interests). Sarah’s long-term goals are (1) to move B.C. to a geography-based legal clinic system akin to that in Toronto, increasing access to justice for indigent populations across the province, especially racialized and Indigenous defendants within the criminal justice system, and single mothers and queer people involved in family law matters; and (2) to increasingly practice prison law and advocate for prisoner’s rights, especially the rights of Indigenous women and other intersectional populations.

Karen Mirsky

Karen is a criminal defence lawyer in private practice and has been for 13 years. Before this, she worked as a freelance writer and editor. Over the course of both careers, her interest in social justice has been a thread that has governed her personal and professional choices.

Early in her law career she worked for Pivot Legal Society as a volunteer and staff lawyer, primarily focussing on sex work advocacy in the legal context. In that role, she sat on civic committees and worked as media liaison and contact person. She chaired Pivot’s Board of Directors from 2005-2007. From 2009-2013, she accepted a board position with PACE Society, a member-driven DTES sex worker support organization. She chaired the PACE Board for two years before leaving to focus on other aspects of her life.

Outside of her law practice, she provides pro bono legal support to individuals protesting environmental issues and is well versed in the legal concepts underpinning civil disobedience and its role in society. she offers civil disobedience education on request as well as a court room advocacy.

She also provide legal support to those in Vancouver’s sex-positive community. She identifies as bi-sexual and polyamorous and consider herself a part of a sexual minority. Between her personal connections and work in sex work advocacy, her connections with the sex work and sex-positive communities are extensive and well-established.

Ayendri Riddell

Ayendri is a Sri Lankan born educator and activist based in Vancouver, Coast Salish Territories. She currently works at Amnesty International as the Regional Activism Coordinator for Western Canada. In this role she is responsible for developing and implementing strategies to mobilize Amnesty’s activist base across Western Canada and the Territories. Ayendri’s work, which she researched and refined through her former position with UBC’s Centre for Community Engaged Learning, focuses on the use of liberatory pedagogies to deepen understanding and inspire collective action.

She is committed to intersectional grassroots activism, is a member of No One Is Illegal – Vancouver Coast Salish Territories, and was a founding member of the Terminal City Legal Collective, which provides training and legal support for grassroots mobilizations in Vancouver and the Lower Mainland. She organized with the End Immigration Detention Network from 2014-2017 in response to a massive strike held by 191 migrant detainees in a maximum security prison in Southern Ontario. During that time Ayendri staffed the detention hotline, supported the legal organizing and conducted extensive research on policy positions related to immigration detention.

Maureen Webb

Maureen is a labour and constitutional lawyer, activist, and writer. As Co‑Chair of the International Civil Liberties Monitoring Group, she was involved in the Arar Inquiry and a number of important Charter challenges. She spearheaded the International Campaign Against Mass Surveillance. Sponsored by ICLMG, Amnesty, the ACLU, and others, over 200 organizations signed onto its manifesto. Her article on the Anti-terrorism Act was cited extensively in the trial judgment in R. v. Khawaja, striking down the motive element in the definition of “terrorism”. Her analysis on the Khadr cases and extraterritorial application of the Charter appeared in the National Journal of Constitutional Law. Maureen has litigated cases at all court levels, including the Ontario Court of Appeal, Supreme Court of Canada, Privy Council, and House of Lords. At Gowlings’ (Toronto) she was part of a team that litigated the landmark Lavigne case, the Green Party’s challenge to the federal leaders’ debate, and the Canadian Civil Liberties Association’s challenge to the powers of CSIS. Maureen has spoken about civil liberties in many venues, including the Chicago Council on Global Affairs, the World Affairs Council, Columbia University, the Ontario Bar Association, the Canadian Labour Congress, Democracy Now, and CBC’s The National. She’s testified before Parliamentary Committees and taught National Security Law at UBC. Her book, Illusions of Security (City Lights, 2007) was an early analysis of mass surveillance. Her second book, Coding Democracy, about hackers, is being published in 2019 by MIT Press. Maureen is currently Legal Director at Hospital Employees’ Union.

< class="what-entry-title">Are You Charged with Contempt of Court?>
Posted on

In my previous post, I wrote about the roles that protest and civil disobedience have played throughout our history. I also wrote about the potential consequences of participating in acts of civil disobedience in breach of an injunction, namely charges of civil or criminal contempt of court. You may want to read that post before reading this one.

Since Monday of this week, when a BC Supreme Court judge stated that the people arrested on Burnaby Mountain be tried for criminal rather than civil contempt of court, we have been asked what the difference is between criminal and civil contempt. I’ll answer that question, and provide some information on the offence of criminal contempt of court as well as sentencing.

Criminal versus Civil Contempt of Court

Civil contempt is where a person or corporation breaches a court order, and the nature of the conduct interferes with the interests of another private party. Criminal contempt is where a court order is breached, but the nature of the conduct interferes with the public’s interest in the “proper administration of justice”.[1] Conduct that is determined to interfere with the proper administration of justice is criminal contempt.[2]

The Supreme Court of Canada defined criminal contempt of court as follows:

“The gravamen [substance] of the offence is not actual or threatened injury to persons or property … [it] is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court.”[3]

It is the nature of the conduct that determines whether there is civil versus criminal contempt.[4] The determination of whether the nature of the conduct is civil or criminal is made by the court in the course of the proceedings.

Contempt of court is an unusual offence. Unlike other civil proceedings, a proceeding that begins as civil contempt may transform into one for criminal contempt. If the court determines, based on the evidence, that the conduct is criminal rather than civil in nature, it will request that Crown Counsel assume conduct of the prosecution from the party who obtained the court order. When the contempt transforms from civil to criminal, so too does the form of the proceeding. Proceedings for civil contempt of court are governed by Rule 22-8 of the Supreme Court Civil Rules, BC Reg 168/2009. Proceedings for criminal contempt are governed by the conventions of a summary criminal trial. Such a trial will have the constitutional protections  of a standard criminal trial, including the right to cross-examine Crown witnesses.

Criminal Contempt of Court

Criminal contempt of court is a common law offence (set out in case law) that is not codified into the Criminal Code, R.S.C., 1985, c. C-46. However, Section 9 of the Code sets out powers of the court to hear charges of criminal contempt.

A criminal offence is made-up of two elements:

  • actus reus: the action or conduct of the accused; and
  • mens rea: the knowledge or intention of wrongdoing of the accused.

For the offence of criminal contempt of court the Crown must prove beyond a reasonable doubt:

  • that the accused defied or disobeyed a court order in a public way (the actus reus); and
  • that the accused possessed the intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea).

While publicity is required for the offence, a civil contempt is not converted to criminal contempt merely because it attracts publicity, but rather because it constitutes “a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt.”[5]

Sentences

Trial judges have the authority to impose sentences for people convicted of criminal contempt of court. Sentences are considered on a case-by-case basis. Because judges have discretion in sentencing, it is difficult to pre-determine what a sentence may be for a conviction of criminal contempt of court. However, looking at previous sentences for criminal contempt in the context of mass civil disobedience – for example, Clayoquot Sound in the early 1990s – may serve as a guideline.[6]

Prior to Clayoquot Sound, sentences for contempt of court in the context of environmental protests were fairly lenient. Sentences for first-time offenders included nominal fines and suspended custodial sentences.[7] Repeat offenders received harsher sentences. However, some first-time offenders convicted of criminal contempt in Clayoquot received custodial sentences i.e. jail time.

An example is the case of six people convicted of criminal contempt of court for blocking the Kennedy River Bridge near Clayoquot Sound in July of 1993.[8] A larger organized group locked arms on the bridge to prevent workers of MacMillan Bloedel from accessing logging sites. This action took place with many media organizations present.

At trial, the six people, ranging in age from 19 to 35, received the following sentence:

  • fines of $1,000‑$1,500; and
  • custodial sentences of 45 days.

On appeal, the BC Court of Appeal amended the trial judge’s sentence as follows:

  • no fines imposed;[9]
  • custodial sentences of 45 days for those who pled not guilty;[10]
  • custodial sentences of 30 days for those who pled guilty; and
  • a suspended sentence for one of the people convicted due to special circumstances.

Appeals

Convictions and sentences for criminal contempt of court can be appealed under Section 10 of the Criminal Code.

At the time of this posting, over 150 people have been arrested on Burnaby Mountain, and trial dates are fast approaching. We will be keeping our eyes and ears open over the next few months, and will continue to post more in the near future.

 


Notes:

[1] Everywoman’s Health Centre Society v. Bridges, 54 B.C.L.R. (2d) 273, 1990 CanLII 5409 (BC CA) [“Everywoman’s“], at para. 77: http://canlii.ca/t/231m8

[2] B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, 1988 CanLII 3 ‘(SCC), at para. 12: http://canlii.ca/t/1ftbq

[3] United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, 1992 CanLII 99 (SCC) [“United Nurses”], at p. 932: https://www.canlii.org/en/ca/scc/doc/1992/1992canlii99/1992canlii99.pdf

[4] Everywoman’s, ibid, at para. 76.

[5] United Nurses, ibid, at p. 903: https://www.canlii.org/en/ca/scc/doc/1992/1992canlii99/1992canlii99.pdf

[6] See MacMillan Bloedel Ltd. v. Simpson, 1994 CanLII 2149 (BC SC), http://canlii.ca/t/1dmh5, an example of a case where a group of protesters on the Kennedy River Bridge were found guilty of criminal contempt of court.

[7] Section 731(1)(a) of the Criminal Code states: “Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order.”, http://laws-lois.justice.gc.ca/eng/acts/C-46/page-185.html#h-269.

[8] MacMillan Bloedel Ltd. v. Brown, 88 C.C.C. (3d) 148, 1994 CanLII 3254 (BC CA) [“Brown“], http://canlii.ca/t/1dcg6

[9] Brown, ibid, paras. 71‑72. The majority of the Court of Appeal overturned the trial judge’s imposition of fines because no assessment was done to determine the person’s ability to pay. Section 734(2) of the Criminal code states that: “Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.”, http://laws-lois.justice.gc.ca/eng/acts/C-46/page-187.html#h-270.

[10] Brown, ibid, para. 53. The majority of the Court of Appeal found that the 45-day custodial sentence issued by the trial judge was a “fit” sentence. The majority also found that a custodial sentence of more than 45 days would be “fit” in the circumstances.

< class="what-entry-title">We’re hiring: Join our team as our new Articling Student!>
Posted on

We’re looking for articling students who are passionate about working with communities to uphold civil liberties and human rights across BC and Canada.

We are seeking two articling students – one to start in September 2018, and one to start in September 2019. Students will work in the BCCLA’s four core program areas, with an emphasis on litigation.

With a mandate that includes work on police accountability, patients’ rights, democratic freedoms, prisoners’ rights, national security issues and more, we are one of the most vibrant and visible advocacy groups in Canada.

The BCCLA is a small team with a big reach, and we want you to be a part of our work.

Under the supervision of the student’s principal, the BCCLA’s Executive Director, and working primarily with the Litigation Director, the articling student will assist and conduct litigation in a diverse range of practice areas including constitutional, criminal, and administrative law.

Click here to learn more and apply for this position.

The deadline for applications is June 29, 2018. Students in 3L are encouraged to apply early and we will evaluate applications on a rolling basis.

The BCCLA is committed to building an inclusive and diverse workplace, and strongly encourages applications from all qualified applicants. Applicants from traditionally underrepresented or marginalized groups including Indigenous people, people of colour, and LGBTQ+ people are welcome to self-identify, should they feel comfortable in doing so, in their cover letter.

We can’t wait to hear from you!

< class="what-entry-title">Protests and Civil Disobedience>
Posted on

Over the past few weeks, we’ve received several calls from the media asking, “What are the consequences for people who are arrested at the Kinder Morgan protests?” Before answering this question it’s important to highlight the role that protests and civil disobedience play in a healthy democracy.

Photo credit: Mark Klotz

Protests and civil disobedience have played an important role for social and political change throughout our history. The Canadian Charter of Rights and Freedoms guarantees the right to freedom of expression and freedom of association. While there are reasonable limits to these rights, courts have commented that protests and demonstrations in public places are highly protected forms of expression.[1]

Judges have also commented on the important role that civil disobedience has played in protecting our fundamental rights and freedoms. In his Guide to the Law of Protest in C, Leo McGrady quotes the former Chief Justice of the Manitoba Court of Appeal, Samuel Freedman, who stated:

There have been instances in human history….in which disobedience to law has proved a benefit to law and to society.[2]

Justice Freedman noted that there are three qualities to civil disobedience:

  • it is always peaceful;
  • those who engage in civil disobedience must be prepared to accept the penalty arising from the breach of the law; and
  • their purpose must be to expose the law breached to be immoral or unconstitutional, in the hope that it will be repealed or changed; or in the hopes that the law or administrative decision will be repealed or changed.

Most protests and demonstrations are peaceful and lawful, with no arrests. Where you run the risk of arrest is when you breach a term of a court-ordered injunction.

Injunctions

An injunction is a powerful legal tool in the context of protests and civil disobedience. It is a legal remedy granted by the court, in the form of a court order, to prevent interference with the legal rights of a person, company, or government. If you breach one or more of the terms of an injunction, you may be arrested and charged with either civil contempt of court or criminal contempt of court. Charges of civil contempt are far more common than those of criminal contempt in British Columbia.

Civil Contempt of Court:

This is not a criminal offence. If you are charged with civil contempt, you will be prosecuted before a judge by the party who obtained the injunction. The party will need to prove beyond a reasonable doubt (the criminal standard of proof) the following three elements:

  • Did the court issue an injunction order prohibiting certain acts?
  • Did the particular accused know about the terms of the injunction order? Knowledge includes willful ignorance.
  • Did the accused do one or more acts amounting to disobedience of one or more of the terms of the injunction? Disobedience must be deliberate or willful.

Criminal Contempt of Court:

This is a criminal offence.[3] If you are charged with criminal contempt, you will be prosecuted by Crown Counsel before a judge. The Crown will need to prove beyond a reasonable doubt the following four elements:

  • Did the court issue an injunction order prohibiting certain acts?
  • Did the particular accused know about the terms of the injunction order? Knowledge includes willful ignorance. Did the accused do one or more acts amounting to disobedience of one or more of the terms of the injunction? Disobedience must be deliberate or willful.
  • Did the conduct of the accused amount to a public defiance or violation of the order so as to make the contempt criminal as opposed to civil? The conduct must bring the administration of justice into disrepute or scorn.

The potential penalties for civil and criminal contempt are the same. You may receive a fine or, in exceptional cases, jail time. Or, you may appear in court and charges will be stayed.

Other potential charges that can result from acts of civil disobedience include:

  • Mischief
  • Breach of the Peace
  • Obstruction
  • Assault

In British Columbia, police recommend charges to Crown Counsel, and the Crown approves charges. One criteria in assessing whether or not to approve a charge is whether a prosecution is in the public interest. For charges related to civil disobedience, factors that favour prosecution may include:

  • The conduct involves violence resulting in physical harm or assaults with a reasonable apprehension of physical harm.
  • Serious property damaged has been caused or there is property damage with a reasonable apprehension that serious property damage will be caused.
  • Persistent less serious offending is significantly disrupting public access to, or enjoyment of, lawful public activities.
  • An assault on a peace officer has occurred.
  • The circumstances are such that the public interest clearly requires a prosecution. For instance, where the safety of emergency personnel, police, or other persons is jeopardized.

While every circumstance is different, we can learn from the latest series of arrests on Burnaby Mountain. The majority of people who have been arrested are released by police on a promise to appear in BC Supreme Court for a charge of civil contempt of court. These promises to appear contain conditions not to further breach the terms of the injunction. If you sign the promise to appear, and agree to abide by the conditions, you will be free to go. But, you will need to appear in court on the date noted. If you do not sign the promise to appear, and do not agree to abide by the conditions, you may be detained until the court date. Most of the court dates for the people charged with civil contempt of the Kinder Morgan injunction are set for June of this year. To date, a small number of people have been charged with criminal offences.

Potential Consequences of Arrest

The question, “Will being arrested affect my employment prospects or travel plans?” cannot be answered with a simple yes or no. Arrests are recorded in police databases, and are considered “adverse contact” with police. The Office of the Information and Privacy Commissioner for BC found that such non-conviction information is routinely released on Police Information Checks (“PIC), You may be requested to provide a PIC when:

  • you are hired for a job;
  • you volunteer with a community-based organization or sports team; or
  • you join a professional association or accreditation body.

Canadian police agencies have information-sharing agreements with international policing and border services agencies, such as US Homeland Security. While non-conviction information is not supposed to be released to these agencies, there are cases where people have been refused entry into other countries based on such information. If you are convicted of a criminal offence, that offence will certainly be shared. Depending on the country, you may be eligible to apply for an entry waiver if you are refused entry.

Another potential consequence of being arrested is if you are a non-citizen of Canada. In certain cases, your immigration status may be affected by criminal charges or convictions. You may want to consult with an immigration lawyer prior to participating in acts of civil disobedience that have the potential to result in criminal charges.

If you plan to participate in a protest or an act of civil disobedience, know your rights! Read Leo McGrady’s Guide to the Law of Protest in BC here. It is an invaluable resource that informed much of this post.


Notes:

[1] Justice Stuart, in R. v. Mayer, [1994] Y.J. No. 142 at paras. 7-9, stated that: A healthy democracy demands an active, informed citizenry willing, nay, eager, to engage in constructive public debate. Our laws must sustain and promote free public discussion. To interfere unduly with this freedom threatens the survival of our democratic existence. Any laws limiting freedom of speech must be designed to protect other fundamental freedoms and be enforced with utmost sensitivity to avoid unnecessarily daunting the desire of any citizen to engage in public debate. Our laws, institutions and society as a whole must develop and abide by a healthy tolerance for the commitment some exercise in pursuing their beliefs. ­­­

[2] Challenges to the rule of law, January 14, 1971, Empire Club, Toronto, Ontario; also cited in (2014) 37 Manitoba Law Journal Special Issue – a Judge of Valour- Samuel Freedman – In His Own Words, page 204.

[3] Although it is considered a criminal offence, this specific offence is derived from common law and not listed as an offence in the Criminal Code.