Today, the BCCLA is heading to the Supreme Court of Canada to argue in a significant appeal about corporations and the Charter. This appeal will determine whether corporations can benefit from the protection against cruel and unusual treatment or punishment set out in s. 12 of the Charter, or whether s. 12 only applies to human beings.

Section 12 of the Charter protects individuals from many types of inhuman punishment, including torture,^[1] corporal punishment,^[2] some mandatory minimum sentences,^[3] and the mandatory imposition of the victim surcharge.^[4] But only the most severe forms of punishment will violate s. 12. The punishment must be “abhorrent or intolerable to society”[5] and “so excessive as to outrage standards of decency”[6] in order to be unconstitutional.

Now, companies want to benefit from s. 12 protection. The company in this appeal argues that it has the right to rely on s. 12 and that it should not have to pay the fine it is facing for violating Quebec’s Building Act[7] because this fine is far too high, and therefore cruel and unusual.

We disagree. The BCCLA will argue that there is a consensus in international human rights law that protections against cruel, inhuman, or degrading treatment or punishment only apply to human beings. Corporations can’t benefit from these rights because their purpose is to protect human dignity and prevent physical or psychological suffering. We will tell the Court that extending s. 12 Charter protection to corporations would put Canada out of step with this international consensus. In our view, allowing corporations to benefit from s. 12 is inconsistent with the purpose and meaning of the right to be free from cruelty.

I’m in Ottawa with our pro bono counsel, Gib van Ert, so stay tuned for updates on our Facebook and Twitter pages!

To learn more about this case, read our media release here.

—

Notes:

[1] Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, para. 52.
[2] R. v. Smith, [1987] 1 S.C.R. 1045 at para. 57.
[3] Ex: R. v. Lloyd, 2016 SCC 13.  
[4] R. v. Boudreault, 2018 SCC 58.
[5] Boudreault at para. 45.
[6] Boudreault at para. 45.
[7] CQLR c B-1.1.

The federal government announced this week that it will make changes to Canada’s law on medical assistance in dying (MAID). It has just launched a consultation process and we need your help to make our voices heard.

Today, Julia Lamb and lawyers for the BCCLA are meeting with government officials as part of a roundtable of experts and key stakeholders. We are calling on the federal government to uphold the rights of seriously and incurably ill Canadians.

We need you to join us in protecting the right to die with dignity.

You can participate in the government consultations by filling out the government’s online questionnaire. The deadline to submit the questionnaire is January 27, 2020.

The current law requires that a person be “near death” to be eligible for MAID. This unconstitutional barrier has prevented people with chronic, degenerative conditions such as MS, Parkinson’s disease, Huntington’s disease and spinal muscular atrophy, from accessing MAID.

The government has accepted that the near-death requirement must be removed, but it is considering whether to add new, potentially unconstitutional, hurdles to accessing MAID.

Take action and fill out the questionnaire now. If we all speak up, we can win this fight.

If you would like to see how the BCCLA filled out the questionnaire, read our submission here.

Here are some key points to consider as you fill out this questionnaire:

1. The existing MAID law has layers of safeguards that place strict limits on who can access MAID

Canada is one of a growing number of jurisdictions around the world that permits death with dignity. The current MAID law places strict limits on who can access MAID. It provides layers of safeguards to ensure that a person is competent and protected against any coercion. These current safeguards will provide strong protection, even after eligibility is broadened to individuals who are not near death.

For example, the MAID law requires that, to be eligible for MAID, a person must have a grievous and irremediable medical condition that causes enduring, intolerable suffering. The law regulates who can provide MAID, how it can be provided, and sets out a mandatory waiting period and the timing of when consent must be given.

Canada’s experience shows that the MAID law is safely and responsibly implemented by medical practitioners.

2. The additional “safeguards” that the government is contemplating are unnecessary and potentially unconstitutional barriers to MAID

Like the near-death requirement, the additional safeguards proposed in the questionnaire were not set out in Carter, the Supreme Court of Canada decision that established the constitutional right to MAID. These additional safeguards are potentially unconstitutional restrictions on the right to MAID, protected by s. 7 of the Charter. Further, given that these additional barriers would only be imposed on individuals who suffer from particular kinds of disabilities, they may also raise issues with respect to the Charter right to equality.

Some of the proposed hurdles, such as requiring consultation with medical specialists and imposing a mandatory psychological or psychiatric assessment, would significantly limit access to MAID, particularly for patients in rural communities.

The BCCLA is particularly concerned about the following two proposed hurdles: 

1. MAID should be available only when the practitioner and the patient both agree that reasonable treatments and options to relieve the person’s suffering have been tried without significantly improving the person’s situation.
   • This proposed barrier flies in the face of Carter. Carter dictates that MAID must be available when the individual’s suffering is intolerable for that individual. It also specifies an individual should never be required to undertake treatments that are unacceptable to them in order to qualify for MAiD. This barrier is also inconsistent with s. 241.2(1)(e) of the Criminal Code.
2.  An obligation for the physician and nurse practitioner to offer to discuss their patient’s situation with their family members or loved ones with the patient’s consent
   • This barrier disregards the fact that the right to die with dignity is the patient’s right and choice.  

3. Advanced requests are a necessity

The government is also seeking input on the availability of advance request for MAID. Failure to allow advance requests for MAID will violate Charter rights. To make no provision for advance requests will cause some individuals to become trapped in intolerable suffering if they lose capacity. It will lead to premature deaths by suicide by some individuals, including those with Alzheimer’s, who fear they will lose capacity once their suffering becomes intolerable.

If you would like to see how the BCCLA would fill out the questionnaire, read our example submission here.

The BCCLA is seeking a Director of People and Operations (maternity leave coverage) to ensure that the BCCLA carries out its mandate and operates effectively. We’re looking for an experienced manager with skills in human resources and finance who’s ready to help lead our small but mighty team.

The Director of People & Operations’ primary responsibility is ensuring organizational effectiveness and promoting excellence by providing and supporting leadership in relation to our organizational culture and development, management and human resources, financial management and budgeting, operations and infrastructure, and governance processes in alignment with the BCCLA’s Strategic Plan.

With a mandate that includes work on police accountability, government transparency, democratic rights including freedom of expression, prisoners’ rights, patients’ rights, privacy rights, and national security issues, 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.

The BCCLA is committed to ensuring equity, diversity, and inclusion are significant considerations in our decision‑making, in our internal work, and in our work in the world. This is critical for BCCLA to act on our values and to achieve our fundamental mandate to uphold and advance civil liberties and human rights.

We encourage applications from members of communities that are marginalized or that experience structural discrimination, including those identifying as Indigenous, people of colour, members of non‑dominant ethnic, religious, linguistic, and/or cultural groups, women, (im)migrants/newcomers, people with (dis)abilities, working class people, persons of minority sexual orientations and gender identities, and we encourage applicants to self‑identify in their application. The BCCLA is committed to excellence, and recognizes that increasing the diversity of our staff, and especially our leadership, supports this objective.

The deadline to apply is Sunday January 19, 2020.

The BCCLA is highly concerned about the developing situation in Wet’suwet’en territories.

On December 31st the B.C. Supreme Court granted an injunction and enforcement order to Coastal GasLink for their natural gas pipeline project on Wet’suwet’en territory in Northern British Columbia. Under Anuk ‘nu’at’en (Wet’suwet’en law), Wet’suwet’en clans opposed all pipeline proposals and have not provided free, prior, and informed consent to Coastal Gaslink to do work on their lands.

In an open letter to the RCMP, Government of Canada, the province of British Columbia, and Coastal Gaslink, the BC Civil Liberties Association urges Coastal Gaslink and the RCMP not to enforce the injunction order at this time, to allow for a peaceful resolution between the Wet’suwet’en, Coastal GasLink, and the provincial and federal governments.  The BCCLA stresses that lethal force is an absolutely unacceptable and abhorrent response to the current peaceful exercise of Anuk ‘nu’at’en.

Read the letter in full here.

As you know, for the last several months, the BCCLA has been searching for a new Executive Director. After an extensive process I am very happy to announce BCCLA’s next Executive Director: Harsha Walia.

Harsha has always been known to the BCCLA as a generous ally who approaches community organizing with skill and humility. She has collaborated with us on numerous important campaigns over the years, including a recent collaboration against discriminatory police stops in the Downtown Eastside, the Justice for Lucía Vega Jiménez campaign, the Transportation Not Deportation campaign to end Metro Vancouver Transit Police’s collaboration with CBSA, and public calls to shut down CBSA’s unethical “Border Security” reality TV show.​

Harsha’s background as a community organizer and popular educator, and her work with Vancouver’s Downtown Eastside and migrant communities, brings a unique set of skills and relationships to the BCCLA that will support the goals in our 5-year strategic plan. A prolific writer, she is the author of Undoing Border Imperialism, and co-author of Never Home: Legislating Discrimination in Canadian Immigration and Red Women Rising: Indigenous Women Survivors in Vancouver’s Downtown Eastside. Harsha is legally trained, a passionate orator, and a strong advocate.

This has been a time of transition for the BCCLA and I am so grateful for the ongoing work and energy of our members, supporters, Board and Staff. We are so excited for the BCCLA’s future with Harsha at the helm. She officially comes onboard later this month so please join me in extending a warm and hearty welcome to Harsha!

Sincerely,

Caily DiPuma

President
BC Civil Liberties Association

Please join us in extending a warm welcome to our new team members!

Veronica Martisius, Articling Student

Veronica joined the BCCLA team in September 2019, after completing her JD at the University of Victoria. She was born and raised in Brantford, ON. Veronica comes from a strong line of Kanyen’kehá:ka (Mohawk) women and is a member of the Six Nations of the Grand River. She is equally proud of her Lithuanian, German, and British roots.

In 2016, after completing the Native Law Centre Summer Program at the University of Saskatchewan, she migrated to the West Coast to live and learn on the territories of the Lkwungen, Wyomilth, and W̱SÁNEĆ peoples. Not a day goes by that she does not reflect and give thanks for the immense privilege and responsibility to live as an uninvited visitor on Coast Salish homelands.

During her time at UVic, she served as co-chair and treasurer of the Indigenous Law Students Association, was a co-op student with the Indigenous Law Research Unit, and a participant of the first W̱SÁNEĆ law field course. Veronica received three peer nominated awards for her efforts to foster good relations and strengthen connections to community beyond the faculty of law.

Ryan Carter, Legal Administrative Assistant

Ryan joined the BCCLA as a Legal Administrative Assistant in 2019 after completing his MA in Political Science at the University of British Columbia where he specialized in energy politics. He wrote his thesis on the effect of energy insecurity on perceptions of Russian interference in postcommunist Europe. Prior to this, Ryan completed his BA in Political Science at the University of Calgary. Ryan moved from Calgary to Vancouver in 2018.

Ryan’s professional background includes criminal law, finance, client services, and more. A recent addition to Vancouver, he is involved with several community-focused organizations and regularly volunteers around the city. Ryan is passionate about informed debate, community dynamism, and fitness.

The BC government passed the Community Safety Act in 2013 but it has never taken effect. The BC government recently reintroduced this troublesome Act by passing the Community Safety Amendment Act (Bill 13), which received Royal Assent on October 31^st, 2019. BC’s Solicitor General Mike Farnworth has committed to implementing it in the near future to help “[p]eople living near ‘crack shacks’ and other dangerous nuisance properties.”[1]

If brought to life, occupants of a property, including homeowners, can be forced to vacate if a court finds that certain activities, which adversely affect the neighbourhood, have been occurring there. This process could be initiated by an anonymous complaint filed by a neighbour.

The BCCLA is staunchly opposed to this legislation for many reasons, and here are the top five:

1. The law is unnecessary.

It will circumvent laws with better procedural safeguards such as the Criminal Code and the Residential Tenancy Act, both of which already have provisions to deal with properties associated with criminal activities. The standard of proof required in getting a property closed is lower than what it would be in a criminal case.

2. The law will unjustly put people’s housing security at risk.

Anonymous complaints from neighbours could trigger an investigation by government officials and result in court orders targeting one or more occupants of the dwelling. Although the government keeps referring to “crack shacks” when defending the law, it can affect individuals and families whose activities are as benign as underage drinking or growing a cannabis plant that is publically visible. The habitual consumption of an “intoxicating substance” by a person of any age—even if they do not live on the property—can also be grounds for a complaint.

3. The law will disproportionately impact vulnerable, and often over-policed, communities.

In the spring, we joined a coalition of individuals and groups to draw the government’s attention to this problem, highlighting that Indigenous women and girls remain particularly vulnerable to the negative effects of state action, and to urge them to abandon it. In the context of growing racial tensions in BC, and throughout Canada, this law will open an avenue for targeted harassment driven by racism and other forms of prejudice. Many who are targeted in other provinces with similar draconian laws are “the more marginalized members of society,” and are not willing to get involved with the justice system due to previous bad experiences; they simply accept an eviction rather than returning to a courtroom.[1]

4. The law will be expensive to administer and the government has not been transparent about the costs.

This is why we have launched an FOI request to find out the public investment needed to create an office for a new Director of Community Safety and a team of officers to investigate a broad spectrum of complaints across the province. The high costs of this program is the key reason why the law hasn’t been implemented since 2013, [1] and we will be sure to let the public know the projected costs of this unnecessary law as soon as we find out.  We are concerned about setting up an unnecessary and expensive program that other jurisdictions like New Brunswick have started to de-fund.[2]

5. The law is unfair and unjust.

Any finding of guilt in a person’s past—no matter how long ago—can be used as evidence against them, or their friends or family members, if it relates to the alleged activities. Furthermore, if a person is found to not be criminally responsible, due to a mental disorder or other mental health issues, the court will still be allowed to draw negative conclusions about their current activities. No one should have their housing threatened because of a previous or ongoing disability.

[1] “I got to the point where I could pinpoint them watching my house’; Safer Communities and Neighbourhoods legislation marks 10 years”, Saskatoon Star Phoenix (online), June 22,2015, https://thestarphoenix.com/news/saskatchewan/i-got-to-the-point-where-i-could-pinpoint-them-watching-my-house-safer-communities-and-neighbourhoods-legislation-marks-10-years

[2] “Program against drug houses is a bust,”  Times Colonist (online), May 19, 2016, https://www.timescolonist.com/opinion/columnists/les-leyne-program-against-drug-houses-is-a-bust-1.2258473.

[3] “Program that let tipsters report neighbours cut back,”   The Daily Gleaner, August 24, 2019.

The BCCLA is seeking a Policy Director to direct and develop the policy work of the association.

Working with the Executive Director, the Policy Director will provide leadership, management, and mentorship to the Policy team; advocating on behalf of the BCCLA, or as part of a coalition, policy and law reform issues; providing public education through speaking engagements, publications, and media commentary; and identifying, researching and developing new policy positions in response to emerging issues.

The successful candidate will work on a wide range of constitutional and administrative law issues to uphold rights in Canada. It is expected that the candidate will have the capacity and appetite to become a national‑level thought leader on the issues on which they work.

The BCCLA is committed to ensuring equity, diversity, and inclusion are significant considerations in our decision‑making, in our internal work, and in our work in the world. This is critical for BCCLA to act on our values and to achieve our fundamental mandate to uphold and advance civil liberties and human rights.

We encourage applications from members of communities that are marginalized or that experience structural discrimination, including those identifying as Indigenous, people of colour, members of non‑dominant ethnic, religious, linguistic, and/or cultural groups, women, (im)migrants/newcomers, people with (dis)abilities, working class people, persons of minority sexual orientations and gender identities, and we encourage applicants to self‑identify in their application. The BCCLA is committed to excellence, and recognizes that increasing the diversity of our staff, and especially our leadership, supports this objective.

The deadline for applications is December 15, 2019.

Permanent Residents share much in common with citizens. They live, work, play, study, pay taxes, send their kids to schools, have access to healthcare coverage, and are protected by the Canadian Charter of Rights and Freedoms. According to the 2016 census, there were 421,935 resident immigrants in BC. Approximately 60,000 Permanent Residents call Vancouver – xʷməθkʷəy̓əm (Musqueam), Skwxwú7mesh (Squamish) & səlil̓wətaʔɬ (Tsleil-Waututh) territories – home. [1] This situation is comparable in other BC cities/territories. Despite their contributions to their communities, Permanent Residents are left without a voice, representation, and a diminished sense of belonging.

The provincial government has jurisdiction over municipal voting laws and sets the parameters that govern them. Several local municipalities and communities of the Lower Mainland, Vancouver Island, and Northern BC, have passed motions to have the BC government change its legislation to give permanent residents the right to vote in local elections. These commendable efforts have blazed the trail towards Motion B109. On the week of September 23, 2019, the Union of BC Municipalities (UBCM), councilor and mayors from across the province will have the historic opportunity to endorse Motion B109, a resolution seeking to strengthen democracy in the province.

The BCCLA encourages the endorsement of the resolution for the following reasons:

• Enfranchising Permanent Residents with a municipal vote is long overdue. The right to vote is essential to one’s feeling of belonging and responsibility in a democratic society.
• The road to citizenship can be long and barrier ridden. Giving Permanent Residents the right to vote now is compatible with their status as immigrants who permanently reside in BC.
• Against the backdrop of declining voter turnout, the ability of Permanent Residents to vote may encourage broader civic participation with respect to municipal governance. Local governments will also be more accountable to the communities they serve as more residents will have a say in how public funds are spent and what bylaws are made on the issues affecting their daily lives.
• BC has the chance to join the ranks of many enlightened jurisdictions across the world that already give Permanent Residents voting rights at the municipal level.

Over the last 150 years, the electoral system in Canada has evolved to give many communities and groups the right to vote, in recognition that these communities and groups should be valued participants in public decision-making processes. For example, voting rights have been extended to women, Chinese, South Asian, Japanese, and Indigenous peoples. The BCCLA believes that the right to vote ought to be extended to Permanent Residents with respect to municipal elections. To do so would ensure that local governments are continuing to strive for greater inclusivity in BC cities.

To learn more about Permanent Resident voting rights check out the Lost Votes campaign here.

[1] http://freshvoices.ca/campaign/lostvotesyvr/