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< class="what-entry-title">An extraordinary victory for citizenship equality>
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After three years and one hundred and twenty-seven days of work, we’ve defeated the second-class citizenship bill!

On Thursday, June 15, 2017 the House of Commons passed Bill C-6 which repeals many of the worst provisions of Bill C-24, including the provision that allowed for citizenship-stripping of dual citizens. Not only that, but the House passed it with a critical amendment that we were able to secure by working closely with Senators. This amendment restores the right to a fair hearing for people at risk of losing their citizenship under allegations of misrepresentation. Together, these are extraordinary victories for citizenship equality and due process.

The passage of Bill C-6 undoes changes made to Canada’s Citizenship Act in 2014 – changes that were discriminatory, anti-immigrant, and unCanadian. The law passed by the previous government – Bill C-24 – created two classes of Canadian citizens: those who have no citizenship in any other country (and are not eligible for citizenship in any other country) and whose Canadian citizenship is therefore guaranteed forever, and those who are dual citizens (or who are eligible for citizenship in another country), who could have their Canadian citizenship taken away.

In other words, the law was blatantly discriminatory. It drew a distinction between people based on where they were born and how they acquired their Canadian citizenship. Under the law, two individuals who committed the exact same crime could face very different penalties. Both could lose their liberty through a criminal sentence, but only one could lose their Canadian citizenship – the very basis of all of our other rights.

Emigrated from a country that doesn’t allow for dual citizenship? Check! Your Canadian citizenship is secure. Decided to retain your citizenship from your country of origin? Sorry, you’re vulnerable to having your Canadian citizenship stripped. Able to secure citizenship easily in another country because one of your parents was born there, as in England, or because you have an automatic right to it, as Jews do in Israel? You too could see your citizenship stripped and face banishment to a country you’ve never even set foot in. This was discrimination, baked right into the law that is supposed to treat us all as equals.

The old law was also discriminatory in another way. It required new citizens to declare their intent to continue residing in Canada, and made people vulnerable to having their citizenship stripped if for some reason they moved away after obtaining citizenship. Again, the law created two classes of Canadian citizens: those who could move abroad for work, school or family obligations without concern, and those who could not freely pursue these opportunities lest they find themselves stripped of their Canadian citizenship. While fostering a connection between newcomers to Canada and their new country is a worthy aim, all Canadians should be able to live their lives and pursue their dreams safe in the knowledge that their Canadian citizenship is secure.

The passage of Bill C-6 puts an end to this absurd state of affairs.

Your support is the only reason we won.

When the BCCLA and the Canadian Association of Refugee Lawyers (CARL) first pointed out all the ways Bill C-24 would undermine citizenship equality, our community stepped up. Famous faces like author Lawrence Hill and Margaret Atwood helped challenged the misinformation being spread by the government at the time by amplifying our message. People from across the country helped translate our work into 11 different languages and get this information into multi-lingual community newspapers from coast to coast.

You took this information and helped it go viral. This blog post announcing that Bill C-24 was coming into force was read more than 1,000,000 times in less than two weeks. You crashed our website. We were thrilled.

When we knew we’d have to fight simultaneously in the courts with a Charter challenge, your financial support made that possible. Through the support of more than 1000 donors, our crowdfunder blew past its original fundraising goal in under 24 hours. We’re a small organization and we absolutely could not have done that without you.

When the federal election rolled around, you made it clear that your vote would be in support of citizenship equality, pushing our new Prime Minister to declare on election night that “A Canadian is a Canadian is a Canadian.” More than 117,000 of you signed our petition calling on the leaders of every party to commit to ending second-class citizenship.

This victory has been an extraordinary story of community strength. Thank you.

In 2016, when the government tabled Bill C-6 which fixed some, but not all, aspects of Bill C-24, you didn’t stop there. Friends at Leadnow lent us their tools so you could more easily reach Senators. Thousands of you emailed and called Senators (relentlessly!) pushing them to restore the right to a fair hearing. They listened. We heard from Senators that their inboxes were flooded and their phones rang off the hook. You did that not once, but a BUNCH of times. Every time we told you that the substance of Bill C-6 was at risk, you sprang into action.

This sustained public pressure over multiple years, combined with expert testimony from BCCLA andCARL lawyers, and a pivotal decision by the federal court, were the recipe for success. With a strong theory of change and sustained community support, these are the kinds of victories for human rights and civil liberties that we can achieve together.

When government seeks to discriminate and violate our cherished right and freedoms the BCCLA will be there, and we know you will be too.

If you’re not already a member, sign up today! We are only strong because you stand with us.

< class="what-entry-title">Welcome Meghan McDermott, Counsel (Policy)>
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Please extend a huge welcome to Meghan McDermott, BCCLA Counsel (Policy). Meghan joined the BCCLA as staff counsel in March of 2017.

With a B.A. in philosophy from Concordia University, her compassion and curiosity drove her to study law at the University of Victoria so that she could collaborate with others to pursue law reform in the interest of enhancing social justice. She has an LL.M. from the University of Edinburgh where her studies focused on whether parties to the United Nations Framework Convention on Climate Change have a responsibility to share the benefits of their forestry-related activities with local and Indigenous communities. Prior to joining the BCCLA she worked for many years as an advisor with the government of British Columbia, developing environmental and health policy and legislation. She has also provided legal services for the government of Ontario and interned as a legal analyst with the Dullah Omar Institute for Constitutional Law, Governance and Human Rights in South Africa.

When she isn’t working, Meghan can usually be found gardening or exploring the city with her dogs. She loves current affairs, arts and culture and volunteers as an executive with the board of Island Mountain Arts, a unique gallery and school of the arts in the Cariboo.

< class="what-entry-title">Welcome newly elected Board Directors>
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Please extend a warm welcome to our four newly elected members of the Board of Directors:

Ian Bushfield
Ian Bushfield is an advocate for Humanism, science and social justice living in Vancouver. He is the current and was the first Executive Director of the BC Humanist Association. He also co‑hosts the PolitiCoast podcast covering BC and Canadian politics. He earned a BSc in Engineering Physics from the University of Alberta and a MSc in Physics from Simon Fraser University, and has taken BCIT courses in non‑profit management.

He helped found the U of A Atheists and Agnostics in 2007 and led the group until graduating in 2009. In 2008 the group successfully challenged the University’s 100‑year‑old convocation charge as it asked students to use their degrees “for the glory of God”. From 2013‑2015 he lived in the UK, first in Leeds then London where he worked on science advocacy and transparency campaigns at Sense About Science.

He has blogged for over a decade and has had opinion pieces .published on Canada.com. He helped found CanadianAtheist.com, and wrote for the U of A and SFU student newspapers.

Jonathan Levitt
Jonathan Levitt has known and struggled with the prejudice and bigotry of being a minority person at various times in his life. As a child in Quebec in the 1950’s, he was raised by a single mother who had to work 6 days a week to make ends meet, with no social assistance. As a gay youth, society labeled him as a mentally ill deviant, subjecting him to discrimination, shame and personal threats. As a Jew, he had to recite Christian prayers in public school. As a person who was infected with “gay cancer” long before the discovery of the HIV virus, he suffered extreme stigma on many levels, including in his Vancouver co‑op housing, and he had to lobby for access to life‑saving medications. These life experiences have shown him how crucial it is to lobby for justice and individual rights so that every person can live with dignity.

Jonathan has a BA (Psychology) from McGill University as well as certificates in counselling and professional development. He has an extensive volunteer background in crisis counselling and suicide prevention, workshop and support group facilitation, teaching ESL and volunteer coordination. He is now comfortably retired after working in a middle management position for the City of Vancouver.

Lindsey Bertrand
Lindsey Bertrand is a communications professional specializing in public engagement in complex issues. She is particularly drawn to projects that aim to create meaningful structural change, and believes strongly that open discourse and access to information are crucial for Individuals and communities.

Lindsey has a BA in Communications from Simon Fraser University, and is an MA candidate at Royal Roads University. She has worked with a number of social change organizations ‑including the Canadian Centre for Policy Alternatives, the BC Freedom of Information and Privacy Association, and OpenMedia‑ and has written and spoken extensively about a number of communications issues, including internet accessibility, privacy, and diversity of voices in media.

Lisa Kerr
Dr. Lisa Kerr is an Assistant Professor at Queen’s University, Faculty of Law, where she teaches courses on criminal law, sentencing and prison law. Lisa has previously worked as staff lawyer at Prisoners’ Legal Services, Canada’s only dedicated legal aid office for prisoners. For several years, she has worked with Pivot Legal Society on a campaign to decriminalize sex work. More recently, Lisa has been advising the Queen’s Prison Law Clinic regarding the delivery of legal services to federal inmates. Lisa has long supported the work of the BCCLA and specifically its litigation aimed at the abolition of solitary confinement in Canadian prisons. During her doctoral studies at New York University, Lisa was named a Trudeau Scholar.

…and to the eight incumbents who have been elected for another term:

Paul Champ
Lindsey Lyster
Richard Marcuse
Alan Rowan
Tom Sandborn
Steve Savitt
Paul Schachter
Vanessa Wolff

< class="what-entry-title">No Gag: An Update>
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Photo credit: David and Sarah Glasson (Flickr/CC BY-NC 2.0)

The Supreme Court of Canada released its decision in BC FIPA v. AGBC on January 26, 2017. We told you about this case in another blog post back in October, and you’ll recall that the issues the Court had to grapple with were whether the expression of political views during an election campaign constitutes “sponsorship” of “election advertising”, and whether a ban on such expression without prior registration with Elections BC violates the right to freedom of expression.

First, the good news

The Court ruled that that the BC Election Act’s prohibition on unregistered sponsorship of election advertising does not capture small-scale election advertising – individuals who engage in expressive activities like displaying handmade signs in their windows, placing bumper stickers on their cars, or wearing T-shirts with political messages on them.

This is great news for individuals in BC wanting to speak up on issues that matter to them during the election campaign. As we said in our intervention before the Court, requiring people to declare their political activities to the government silences the voices of those already marginalized within the political arena: those with little money, little political power, and views that challenge the status quo.

The bad news

While we were hoping the Supreme Court’s decision would help clarify a set of rules that have caused incredible confusion and consternation among BC non-profits and individuals, the ruling was not a clear victory. Even worse is that the resulting guidance bulletin issued by Elections BC is the exact opposite of clarifying, and appears to us to be completely unmoored from what the Court actually said in its decision. Those hoping for a clear set of rules to guide their communications during the upcoming BC election campaign will be sorely disappointed.    

First, the Court ruled that the lack of any minimum spending threshold before the registration requirement kicks in violates freedom of expression. However, it held that this infringement is justified. As we noted in our October blog post, BC is the only province that doesn’t set a minimum amount that must be spent on election advertising before a person has to register. We’re concerned that small spenders will continue to find their freedom of expression rights chilled by the requirement to register before speaking out during the campaign period.

What’s worse though is how the Court’s decision is being interpreted by Elections BC. After the ruling, Elections BC posted a new bulletin on “Handmade Elections Advertising” on its website. The bulletin states:

To be a provincial election advertising sponsor, an individual must pay others for advertising services, receive free advertising services from others, or produce and personally hand-out more than 25 copies of homemade signs or pamphlets during the campaign period. Therefore, individuals who:

  1. use their own supplies and equipment to make their own election advertising materials, such as handmade signs or pamphlets,

  2. do not work with others on either preparing or transmitting the advertising,

  3. make 25 or fewer of their own signs or pamphlets, and

  4. hand-deliver those signs or pamphlets directly to 25 or fewer other individuals are not advertising sponsors.

This bulletin has been rolled into a longer, more comprehensive Guide to Communications for Provincial Advertising Sponsors, available on the Elections BC website.

Photo credit: Stephen Rees (Flickr/CC BY-NC-ND 2.0)

This bulletin is completely inconsistent with the Supreme Court of Canada’s decision in a number of respects. First, the Court set out clearly that the sections of the Elections Act in question apply to “paid advertising”, not to individual or group expression that does not take the form of “advertising” as that term is commonly understood. The Court stated that the provisions are directed “only at those who undertake organized advertising campaigns  that is, “sponsors” who either pay for advertising services or who receive those services without charge as a contribution. In no case does the registration requirement apply to those engaged in individual self-expression.

The bulletin also creates an arbitrary limit of 25 homemade pamphlets or signs, which must be created alone using one’s own supplies and hand-delivered to the recipients. Again, there is no support for such a draconian restriction on freedom of expression in the Court’s decision.

The Bulletin goes on:

“Groups of individuals or organizations that conduct any sort of election advertising are advertising sponsors and must register with Elections BC before sponsoring the advertising.”

Once again, this is out of line with what the Court said in its decision. The Court makes clear that free expression by groups and organizations is equally constitutionally protected expression and is to be treated in the same way as expression by individuals.[1]

The BCCLA and BC FIPA, the plaintiff in the case, wrote to the Chief Electoral Officer expressing our concerns and urging them to revise the new bulletin so that it is consistent with the Court’s ruling and does not improperly interfere with freedom of expression. The reply we received stated that there are no plans to revise the bulletin.

So what next?

Well, in the short term, we find ourselves back in the same state of confusion and self-censorship that prevailed before the Supreme Court of Canada’s decision. Elections are a time when our freedom to express our opinions and beliefs is more important than ever. It’s very disappointing that despite a years-long legal fight supported by countless hours of pro bono legal assistance, those charged with implementing the decision of the nation’s highest Court have issued an interpretation that is so far off base.

In the longer term, we will continue our advocacy to get these laws changed. As BC FIPA points out, just before their challenge was heard by the Supreme Court of Canada last fall, Elections BC did make a major climb down from their previous position regarding communications over the internet.

In a Bulletin posted last September, Elections BC stated that electronic communications such as tweets, Facebook posts, web posts or emails would no longer be considered to be advertising, so registration would not be required for those activities.

And what should you do?

Photo credit: Roland Tanglao (Flickr/CC0 1.0)

Well, all we can say is that despite the Court’s decision, Elections BC’s interpretation still requires all groups or organizations to register before engaging in elections advertising, and the law still defines “election advertising” incredibly broadly. Same goes for any individual who wants to produce and personally hand-out more than 25 copies of homemade signs or pamphlets during the campaign period. Failure to comply with the registration requirement could result in a complaint made against you, a significant fine, or even up to a year in prison.

It could also result in the next court case challenging the law.

[1] See para 24: “However, s. 239 of the Act limits the registration requirement by requiring registration only by individuals or organizations who “sponsor election advertising”. The ordinary meaning of “sponsor” does not suggest a person engaged in individual self-expression, but rather a person or group that is undertaking or “sponsoring” an organized campaign. A “sponsor” is “a person or group that promotes another person or group in an activity or the activity itself, either for profit or for charity.”

< class="what-entry-title">Mémoire à propos du projet de loi C-6, Loi modifiant la Loi sur la citoyenneté, présenté au Sénat du Canada>
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L’Association des libertés civiles de la Colombie-Britannique (ALCCB) et l’Association canadienne des avocats et avocates en droit des réfugiés (ACAADR) se réjouissent d’avoir l’occasion de présenter au Comité un mémoire sur le projet de loi C-6, Loi modifiant la Loi sur la citoyenneté et une autre loi en conséquence.

Nous sommes grandement en faveur de ce projet de loi, qui abroge des dispositions importantes de la Loi sur la citoyenneté, modifiée par le projet de loi C-24; nous considérons que ces dispositions sont inconstitutionnelles. Cependant, le projet de loi C-6 n’aborde pas une question importante que nous souhaitons porter à votre attention. Dans le présent mémoire, nous survolons les dispositions du projet de loi C-6 que nous appuyons, puis en exposons les lacunes et recommandons des amendements.

Hyperlien au mémoire

< class="what-entry-title">Border rights: what you need to know>

Image of US border crossing by Canadian Pacific (Flickr Creative Commons)

Like many of you, I’ve been thinking a lot lately about my rights at the border. In light of reports that numerous Canadians have been refused entry to the United States for unclear or troubling reasons recently, not to mention the possibility that US officials could start demanding social media passwords from would-be travellers, I’m worried about delays, refusal, and protecting my privacy. And as a white woman born in Canada with an Anglophone last name, I probably have a lot less to worry about than many others.

Your rights at the border have been extensively canvassed in a wide range of media articles recently. We hope it’s useful to have this information available all in one place, but remember that the law can change and things are happening quickly, so don’t rely on this information for advice about your own specific situation.

There are also some tips for protecting your privacy at the bottom of the post.

Image of a sign welcoming refugees in Toronto by Canadian Pacific (Flickr Creative Commons)

The first thing to remember if you’re a Canadian travelling to the United States is that you do not have a free-standing right to enter the US. Many Canadians have been crossing the Canada-US border regularly and without incident for years, but it’s important to remember that US officials have no obligation to let you into the country and can deny you entry for all sorts of reasons that may seem arbitrary and unfair. And while it seems like we’re hearing about many more examples of troubling actions by US border officials right now, there have been many instances of unfairness over the years. Canadians have been refused entry to the US because of a history of depression and mental illness. The US didn’t lift its ban on ban on entry into the US by people with HIV until 2009.

The US Immigration and Nationality Act states that except in cases specified by Congress,

…no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

A spokesperson for US Customs and Border Protection (CBP) has stated that “CBP does not discriminate on the entry of foreign nationals to the United States based on religion, race, ethnicity or sexual orientation.” But despite these assurances, it may be difficult for some people to feel confident that their right to non-discriminatory treatment will be respected when we hear stories like that of the Muslim woman turned back after she was questioned about her religion, or the man denied entry after border guards read his profile on a gay hookup app.

The fact that information about both of these travellers was discovered on their cell phones raises another pressing question:

Can US border guards search my phone or laptop?

Image of laptop and phone by Ervins Stauhmanis (Flickr Creative Commons)

In a word: yes. And they can ask for your device’s password, too. You don’t have to give it, but it’s unlikely you’ll be allowed into the country if you don’t. The officer could even tell you that you’re banned from ever entering the United States, but there’s no legal basis for banning you for refusing to give a password, and lawyers say that such a ban could be challenged in court.

Of course, going to court is an arduous, expensive and time-consuming undertaking, one made all the more difficult by the fact that you’d have to sue in the US. You can seek the intervention of a supervisor while you’re being questioned and lodge a complaint with US Customs and Border Protection when you get home, but it may not make much difference. You can also report your experience to a local affiliate of the ACLU.

What about Canadian border guards? Do I have more rights as a Canadian when I’m coming back into Canada?

The right of every citizen of Canada to enter, remain in and leave Canada is protected by section 6 of the Canadian Charter of Rights and Freedoms. But your other Charter rights are significantly curtailed at the border, including your right to be free from unreasonable search and seizure and your usual protections against arbitrary detention and compelled self-incrimination.

Section 99 of the Customs Act gives Canada Border Service Agency (CBSA) officers the power to “examine any goods that have been imported and open or cause to be opened any package or container of imported goods” – basically, to search your stuff. “Goods” are defined to include “any document in any form.” Section 11 requires entrants to Canada to “answer truthfully any questions asked by the officer in the performance of his or her duties”, and section 153 forbids making “false or deceptive” statements to customs officers or acting to “hinder or prevent” officers in performing their duties.

These laws were created at a time when people crossed the border with a suitcase and maybe a briefcase, not with digital devices containing deeply personal information including photos, text messages, emails and search histories. However, despite the Supreme Court of Canada’s clear acknowledgment in a recent digital privacy rights case that “it is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession”,[1] the CBSA interprets its power to search “goods” as including a power to search cell phones and laptops, and warrantless, suspicionless searches of digital devices are a matter of routine.[2]

Image of CBSA badge by Dave Conner (Flickr Creative Commons)

Unlike the US, which has published a detailed Privacy Impact Assessment on border searches of electronic devices, Canadian policies are much more difficult to find, making it harder for Canadians to understand and assert their rights. Interim guidelines obtained through an Access to Information Request and provided to the BCCLA offer a glimpse into CBSA’s policy. Officers can request passwords, though not for information stored “remotely or online.” If a traveller refuses, the device could be seized and held for a forensic examination. Nothing in the law or guidelines prevents CBSA from then copying the entire contents of the device.

The guidelines also state that until further instructions are issued, CBSA officers shall not arrest a traveller solely for refusing to provide a password. In response to questions from media, Scott Bardsley, press secretary for the minister of public safety, recently confirmed that the guidelines are still in place. The BCCLA has not independently confirmed that the guidelines are still operative and, in any event, they are only guidelines and should not be relied on as a definitive statement of the law.

As we detailed in a previous blog post, in 2015 (prior to the enactment of the guidelines) a Montreal man was charged with hindering or preventing an officer from performing their duties under the Customs Act after refusing to give up the password to his Blackberry when a CBSA officer demanded it. Mr. Philippon ultimately abandoned a constitutional challenge to his arrest and pled guilty to the charge. Until another case comes along, we simply do not know whether the CBSA’s powers include compelling people to provide passwords (though we certainly know that CBSA acts as if they have this power), or whether it is constitutional to arrest someone for refusing (though we know that people have been arrested in these circumstances).

So what do I do?

Image of travel bag and contents by Do8y (Flickr Creative Commons)

The safest thing you can do is to leave your device at home when you cross the border. That may not feel very realistic or practical, but if your whole life is on your device, that’s all the more reason to leave it behind. If it’s seized, you could be without it for a very long time.

If you must travel with your digital device, here are some things to consider:

  • Make a full backup. A recent backup will ensure you have access to your data if your device is detained.
  • Turn off your device when you’re crossing the border, disable fingerprint unlocking and require a strong password to log on. This will prevent a CBSA officer, or anyone else who wants access to your data, from simply turning on your device and browsing through its contents.
  • Wipe your device of any files you want to ensure remain private. If you’ve stored your backup online (see point 1), you can even download your data back onto your device once you reach your destination.
  • Encrypt important documents and files, or consider full disc encryption. Encryption essentially scrambles the contents of your electronic device. The data is unlocked by a passphrase. More and more laptops and handheld devices are coming with disc encryption software built in.
  • Separate privileged or confidential documents from other files. Privileged information is given the most protection, and in theory should not be viewed by border officers at all other than to verify that it is what you claim it to be. This certainly includes lawyers’ files, and can sometimes include doctors’ and psychologists’ records. Journalists have a limited privilege over their sources. If you have privileged information on a device that a border guard wants to search, be sure to alert them to its presence. This is much easier to do if the privileged materials aren’t mixed in with unprivileged materials.

Some people may worry that crossing the border with a wiped phone or encrypted files may look “fishy” and could expose them to heightened suspicion and scrutiny. We can certainly understand these concerns and encourage everyone to use their best judgment given their own circumstances, vulnerabilities and needs.

The more that we assert our privacy rights and take active steps to preserve and defend them, the more we help normalize these privacy-protective measures and the less “fishy-seeming” they will become.

[1] R v Fearon, 2014 SCC 77 at para 51.

[2] R v Saikaley, 2012 ONSC 6794 at para 14.

< class="what-entry-title">In the wake of tragedy: acting together against Islamophobia>

 

This weekend Canada witnessed a despicable act of terrorism perpetrated against Muslims in Canada. While individuals, including children, were praying in Quebec City’s Centre Culturel Islamique de Quebec a gunman entered the space and opened fire.

As a result, six people are dead and more remain in critical condition.

The BCCLA grieves the loss of Mamadou Tanou Barry, 42, Abdelkrim Hassane, 41, Khaled Belkacemi, 60, Aboubaker Thabti, 44, Azzeddine Soufiane, 57, and Ibrahima Barry, 39. Our thoughts are with their loved ones.

As we mourn this horrific incidence of mass murder, we want Muslims in BC to know that if they are faced with violence or discrimination for being Muslim (or perceived to be Muslim), there are resources out there.

1. Share widely the Islamophobia Legal Assistance Hotline


In March of 2016, the BCCLA joined with a coalition to launch a resource phone line in BC providing free confidential legal advice to people who have been discriminated against, harassed, or faced violence because they are Muslim or are perceived to be Muslim.

If you are in need of this kind of resource, please find more information about the Islamophobia Legal Assistance hotline here.

You can help by sharing widely the Islamophobia Legal Assistance
hotline.

This national tragedy came amidst the chaos created by an Executive Order issued by US President Trump.

The order bans all citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the US for 90 days, stops the admission of all refugees to the United States for 120 days, and bans entry of those fleeing from war-torn Syria indefinitely.
The BCCLA deplores this racially discriminatory order , which has disrupted lives and torn apart families. While the government of Canada says that the U.S. government has clarified that Canadian citizens who are dual citizens of the listed countries are not covered by the ban, it is totally unclear how border authorities will actually apply the order to individuals when they try to enter the U.S. Already, there are indications that border officers are refusing to follow a court order putting a halt to removals of individuals under the order, and it is clear that officials have been totally confused by what the order actually means. (You can find our latest updates on Canadians and the US Travel Ban here).

2.Tell Canada to suspend the ‘Safe Third Country’ agreement

In response to this order we join many other civil society and refugee-serving organizations in calling on the Government of Canada to suspend the “Safe Third Country” agreement with the United States.

The agreement allows Canada to turn away most refugee claimants who are transiting through the United States to Canada via the land border, based on the premise that the United States is a safe country in which they can make their asylum claim.

BCCLA Executive Director Josh Paterson had this to say:

If Canada ships refugee claimants back to the United States, the United States has made clear that it will refuse their claims. Sending asylum-seekers back to the U.S. will put Canada in breach of its legal obligations under the Refugee Convention. Canada cannot respect international law and continue in this agreement with the United States at the same time. We call on the federal government to suspend the Safe Third Country agreement effective immediately.

TONIGHT Parliament is having an emergency debate on the issue. 

You can help by asking your MP to ensure Canada takes action on the US travel ban. 

Draft email content and calling scripts are available from our friends at the Canadian Civil Liberties Association here. 

3.Next: help end Canada’s complicity in torture

This week BCCLA joined with civil society groups from across the country to issue an open letter to the Public Safety Minister Ralph Goodale about the urgent need for Canada to revise the Ministerial Directives on torture.

A decade ago, the public inquiry into the case of Maher Arar clearly documented that irresponsible sharing of intelligence information from and to Canada can and does result in torture. The inquiry into Mr. Arar’s torture explicit recommended that intelligence information should never be shared by Canadian agencies if it is likely to lead to torture. Canada’s Ministerial Directives issued in 2011 explicitly run counter to those recommendations.

This week, the New York Times reported the United States administration is open to the return of torture during interrogations and is considering a review of its use of CIA black sites. Both these revelations raise troubling questions about the very real risk that intelligence sharing between our two countries may again become tainted by torture.

You can help by calling on the Minister of Public Safety to revise the Ministerial Directives on torture issued by the previous government in 2011.

Send this script below, or edit with your own words, to [email protected]

Minister Goodale,

End Canada’s complicity in torture.  Canada must revoke the Ministerial Directives allowing for collaboration and information sharing with foreign government agencies if the information conveyed is derived from torture, or torture may result.  Canada must pass a law to create a clear prohibition on sharing information likely to be derived from, or at risk of leading to, torture.

4.Attend a vigil in solidarity

Below is a list of more than 30 communities taking part in vigils to mourn the loss of life that resulted from this act of terrorism.

We encourage everyone to attend or organize a vigil near you in solidarity with those who have lost loved ones and in repudiation of this act of hate and terror.

Thank you to @hussansk for bringing this list of vigils together. If there is an action missing or you are organizing an action please reach out on twitter.

 

< class="what-entry-title">Whose streets? Our streets!>


Here are some quick tips from our 2014 Annual Report to help you safely exercise your right to protest.

At the BCCLA we believe that the protest is a critical part of free expression and assembly rights.

For individuals, the act of protesting not only makes their dissent visible to others, it brings them face to face with people who share their concerns. Protest is first an act of expression, and then an act of communion.

For our communities, protest, demonstration, and dissent advance critical conversations about public policy and government accountability.  Canadians have protected these rights in our most fundamental laws because they are the bedrocks of healthy democracies.

For those reasons, the BC Civil Liberties Association believes that every person in Canada should be able to engage in non-violent public protest. That’s why in 2014 we took our “Protest Rights Workshops” to communities across BC’s north, the lower mainland, and the gulf islands delivering practical tips to packed rooms.

If you’re preparing to exercise your democratic right to demonstrate this summer, here are just a few tips that we cover in the workshop.

The Law of Protest in BC

First, please note that this piece is legal information only, not legal advice. Every arrest situation is different, and only your lawyer can provide advice. We also wish to recognize that while our workshop deals with BC and Canadian law, Indigenous laws continue to operate on the land. We recommend Leo McGrady’s fantastic “Guide to the Law of Protests in BC- Cedar as Sister edition,” for deeper discussion. Leo’s guide is the inspiration for much of what we share in our workshop, and we thank him for his many years of great work on this subject.

Planning to protest- Things to bring with you:

  • Pen and paper –If there are arrests, you need to record the names of people arrested, their contact info, and the details of their arrest. You may need this information to track down arrested individuals and to reach their out to their contacts.
  • Photo cameras and video cameras –Recording what is happening can help to calm down a situation, remind police that they are being watched, and ensure you have useful evidence if something goes wrong. You may want a designated videographer/photographer for the event who can make photography (rather than protest) their sole focus. You have the right to record video or take photographs of police in a public place. The police may ask you to stop, but you do not have to. You do not have to show the police what you have photographed or videotaped.

However, if you record or photograph something they think could be evidence, they have the right to seize your device in order to protect that evidence. If you promise to retain the evidence in your care and provide your name and address, the police are more likely to let you keep your camera. Police practices vary from region to region.

  • Water bottles – Not just for drinking! If police use gas, you will need water to wash your eyes. You should not wear contacts; wear glasses instead, as contacts can interfere with washing your eyes out. In the event of tear gas, adding baking soda to the water will improve its effectiveness.
  • Prescription drugs – If you need them, bring them in their original packaging in case you’re arrested and need to take medication during a lengthy detention.
  • Identification – You might want to carry photo ID like your status card or driver’s license to speed the process of confirming your identity and releasing you from jail. Other than your one key piece of ID, leave the rest at home. Seized items can get lost, especially in a mass arrest situation, and you’ll be glad the rest of your wallet is at home.
  • Cell phones? –On one hand, they can be valuable to contact other protesters, post to social media, and photograph or video what’s going on. But if you are arrested for any reason, your phone could be seized. Right now in BC, a cellphone can be legally searched without a warrant when you are arrested. So, you may wish to make sure that you don’t have anything private stored in your cellphone that you wouldn’t want others to see.

During a demonstration

Remember that calls and messages can easily be picked up by police, even if it’s illegal for them to do that. If you suspect that you are being monitored, take the batteries out of your cellphone. Even when turned off, cell phones can pick up and transmit information if they are hacked by authorities.

Under the Police Act in BC, uniformed police are required to identify themselves. We suggest that protesters take down the names, badge numbers, and descriptions of crowd control officers while everything is going smoothly. It can be difficult to gather this information if the situation escalates. You are entitled to photograph officers and to ask them to identify themselves.

Be aware that undercover police officers may be present at a protest and that they are not required to identify themselves. If you suspect that someone is an undercover officer, do not expose them by shouting and pointing at them; you may be charged with obstruction. Instead, find discreet ways to inform the people around you of potential undercover police presence. Be very careful about what you say on social media, as it can be used against you in legal proceedings.

Leaving a demonstration

Always leave in groups following a protest. This is the most vulnerable time for arrest. People are most often improperly targeted for arrests at the end of the demonstration.

For more information on your rights in the event of detention or arrest, look at the BCCLA’s Arrest Handbook and Arrest Pocketbook, available in English, Spanish, Vietnamese, and Arabic at www.bccla.org/arrest.

< class="what-entry-title">Shut the frack up!>

 Update: This morning the decision in Jessica Ernst’s case was delivered.

In a 5-4 decision, the Supreme Court of Canada has ruled that Jessica Ernst cannot use the Charter to hold an Alberta energy regulator accountable for an alleged violation of her right to freedom of expression.

The Court ruled that the regulator was protected by an immunity clause, and that Ms. Ernst should have pursued her rights through other legal avenues.

Everyone at the BCCLA is disappointed by the Court’s decision, which denies Ms. Ernst the ability to use the Charter to defend her right to free expression, and is a step in the wrong direction for the accountability of government regulators.

The Charter guarantees everyone the right to an appropriate and just remedy if their constitutional rights are violated, but a majority of the Court has now said that in some circumstances, legislatures may shield certain government administrative decision makers from Charter scrutiny. This decision has worrisome implications for people across the country seeking to hold government-appointed decision makers accountable for egregious unconstitutional actions


Original Post- January 12, 2016

Ensuring Canada’s energy regulators are accountable for rights violations

Jessica Ernst burns off some of the methane that is in her well water in Rosebud, Alta. (Jeff McIntosh/Canadian Press)

Jessica Ernst burns off some of the methane that is in her well water in Rosebud, Alta. (Jeff McIntosh/Canadian Press)

Imagine the tap water in your home was so contaminated with toxic chemicals that you could light it on fire.

Imagine the government agency tasked with responding to these kinds of problems wasn’t taking action and seemed to be ignoring your repeated complaints. Now imagine that after doing everything you could to get your concerns taken seriously, including speaking out publicly and engaging the media, you were told by that agency that they would not accept further correspondence from you unless you stopped speaking out publicly, and they began returning your letters unopened. Your health and safety are at risk, and the government agency responsible is refusing even to hear from you unless you stop your public advocacy.

Would you feel silenced? Like your freedom of speech had been violated? Alberta resident Jessica Ernst went through just such an ordeal, and she’s fighting back, all the way to the Supreme Court of Canada. The British Columbia Civil Liberties Association will be there, joining the legal fight to ensure that Alberta’s energy authority – and regulatory bodies across the country – can be held to account when they violate people’s fundamental rights.

Fracking the Rosebud aquifer

Jessica Ernst lives on a rural property near Rosebud, Alberta. Her home is supplied with fresh water by a private well that draws from the nearby Rosebud Aquifer. Between 2001 and 2006, EnCana, a North American oil and gas company, engaged in hydraulic fracturing, or “fracking”, for methane gas at dozens of gas wells adjacent to her property. The operation involved drilling into the ground and injecting large quantities of highly toxic fracking fluids. Soon after the operations began, Ms. Ernst’s well water became severely contaminated with hazardous and flammable levels of methane and other toxic chemicals. Her water became so contaminated with methane that it could be lit on fire.

Jessica Ernst repeatedly brought her concerns to the attention of the Alberta Energy Regulator, which is responsible for receiving public complaints, conducting investigations and taking enforcement action when the rules have been broken. She also voiced her concerns publicly, through the media and with fellow landowners and citizens. She was critical of the Regulator’s response to the contamination, alleging that despite clear knowledge of potentially serious industry-related water contamination and breaches of the law by EnCana, the Regulator had failed to respond or take appropriate action to address these concerns, and was basically ignoring her complaints.

In 2006, the Regulator took its disregard of Ms. Ernst’s complaints a step further: a manager informed Ms. Ernst that he had instructed staff to avoid any further contact with her. Her subsequent letters were met with silence and returned unopened. She was told by a member of the Regulator’s legal branch that they would not reopen regular communications with her until she agreed to raise her concerns only with the Regulator, and not publicly through the media or with other citizens. She was unable to lodge complaints, register concerns, or participate in the Regulator’s compliance and enforcement processes. She was essentially silenced in her attempts to register her serious and well-founded concerns that EnCana’s fracking activities were adversely affecting her groundwater supply. She believed she was being punished for publicly criticizing the Regulator and bringing unwanted attention to its failure to act.

So she’s fighting back.

Ms. Ernst launched a lawsuit against EnCana, the Alberta government and the Regulator alleging that EnCana had negligently fractured into the Rosebud Aquifer and that the Alberta government and the Regulator had been negligent in the way they investigated and enforced the law. She also alleged that the Regulator had violated her right to freedom of expression, protected by section 2(b) of the Canadian Charter of Rights and Freedoms, through its refusal to accept her complaints and pressure to cease her public advocacy.

However, in court, the Regulator pointed to a section of Alberta’s Energy Resources Conservation Act that it said barred her claim and gave the Regulator immunity from her lawsuit. And, disappointingly for those of us who believe that government agencies must be accountable to the public they are meant to serve, the Alberta courts agreed, holding that because of that section of the law, her lawsuit against the Regulator could not proceed. Ms. Ernst is now taking her fight to have her allegations against the Regulator heard all the way to the Supreme Court of Canada, which will hear her appeal today.

A pattern of silencing dissent

At the BCCLA we’ve seen – and fought – these kinds of attempts to shut out and shut up community members and First Nations before. Unfortunately, in recent years, there have been numerous examples of energy regulators and legislatures seemingly attempting to narrow the opportunity for public input into resource decisions, and a negative attitude (or worse) on the part of government towards opponents of resource development. From the National Energy Board slamming shut the doors of its hearing rooms to the public; to the RCMP and CSIS spying on citizens opposed to the Enbridge Northern Gateway pipeline project, interfering with their rights to freedom of expression, assembly and association; to SLAPP suits brought against activists like the ones fighting Kinder Morgan’s Trans Mountain energy pipeline, we’ve publicly fought back against powerful interests trying to muzzle critics, stifle civic engagement, and avoid transparency and  public accountability for their actions. But a government agency telling a landowner that her complaints about flammable tap water will not be addressed until she stops speaking out publicly, and then a court telling that landowner she has no way to make a legal claim for this possible breach of her Charter-protected rights is, for us, unprecedented. So we’ll be at the Supreme Court of Canada today to fight back on this case, too.

As a human rights organization, we’re disturbed by the government’s argument, upheld by Alberta’s Court of Appeal, that provincial legislation can insulate a regulator from claims that it has violated an individual’s Charter rights. We’re intervening in the case at the Supreme Court of Canada to argue that governments cannot pass legislation that gives them a free pass to violate fundamental rights and freedoms without judicial scrutiny or oversight. The Charter is the supreme law of Canada and guarantees that anyone whose rights or freedoms have been infringed or denied may apply to the courts to obtain a remedy the court considers appropriate and just in the circumstances. What the Alberta legislation – and provincial legislation like it across the country – purports to do is to deprive the courts of their ability to determine an “appropriate and just” remedy when someone’s Charter rights have been violated. In our view, this violates a fundamental principle of our legal order: that where there is a right, there must be a remedy.

The Supreme Court of Canada has said that “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.”[1] Ms. Ernst has been told by the Alberta courts that she will get no remedy for the alleged violation of her constitutionally protected free speech rights. We’ll be urging the Supreme Court of Canada to reverse that decision and affirm the importance of appropriate remedies for Charter breaches, no matter what kind of government agency commits them.

Ms. Ernst’s fight against the fracking operation in her backyard is far from over. But we hope that this part of her fight – to participate in important public debate, to speak out, and to obtain an appropriate remedy if Charter rights are violated – will soon be won.

[1] R v 974649 Ontario Inc, [2001] 3 SCR 575 at para 20.