the democratic CommitmentCommitment THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION NEWSLETTER WINTER 2015 / VOLUME 49 NUMBER 3

INSIDE FREE EXPRESSION IN A CLIMATE OF FEAR PAGE 2 PRESIDENT’S LETTER We believe it is a critical time Liberty award for Excellence Opportunity to rebuild for free expression in this in the Arts for her refusal to PAGE 3 FOUR WINS country. sit idly by while her work was Victories for rights censored, and her rights were PAGE 4 FREE EXPRESSION In recent years, cities have trampled. Blacklisted artist no more passed laws curtailing the right to demonstrate, scientists Franke James is a Canadian PAGE 6 REFUGEES Just treatment required in employ of the government artist, author and activist who have had their voices muzzled, has drawn inspiration from PAGE 7 BCCLA TEAM and ‘anti-terrorism’ laws are the Canadian government’s Meet our new teammates being used to limit our rights attempts to silence her. PAGE 8 SUPPORTER PROFILE to free speech. The Canadian Paul St. Pierre government went out of its In September we hosted an PAGE 10 YOUR RIGHTS ON TRIAL way to silence voices that don’t exhibition of 33 pieces of Innocent until proven guity share its talking points. Franke’s original art work on Pre-trial incarceration Vancouver’s Granville Island. PAGE 12 ACCESS TO INFORMATION In 2014 the BCCLA honoured Urgent reform needed one outspoken voice with a continued on page 4 PRESIDENT’S LETTER PROTECTING RIGHTS AND FREEDOMS

Thanks to your support, the BCCLA has OPPORTUNITY TO REBUILD celebrated many victories for rights and freedoms LINDSAY LYSTER four so far in 2015. Here are four of our favourites. VICTORIES FOR RIGHTS

ith a new We are optimistic that It has promised a national government the new government inquiry into missing and POVERTY AND HOMELESSNESS RIGHTS BECOMES A CITIZEN Win , the brings an opportunity to murdered Indigenous The BC Supreme Court recently fought long and hard BCCLA faces a new and rebuild. Already, the new women. And of course, 1 ruled that Abbotsford’s anti- 2 to obtain a Charter of Rights which exciting challenge. government has said that it the government has said homeless bylaws violate the guarantees certain fundamental will put an end to second- that it will change the Charter of Rights and Freedoms. The ruling freedoms to all people. Zunera Ishaq’s As all of our supporters class citizenship – directly “problematic elements” of recognized that telling individuals, who successful fight to be able to choose to know, in the past decade responding to our long the anti-terror law, Bill C-51. have nowhere else to go, that they cannot wear a niqab at her citizenship ceremony the federal government has advocacy against Bill C-24 sleep outside or erect temporary shelters reminds us of the importance of respect passed law after law that and our constitutional We do not know yet what to protect themselves from the elements for individual rights, freedom from undue threatened fundamental challenge. any of this will mean in places them in an impossible situation. government interference, and tolerance rights and freedoms. It’s practice, and we expect to We extend a huge congratulations to Pivot of difference in . Those are values been difficult to simply The Prime Minister himself work with the government, Legal Society who represented their clients this organization cherishes deeply. keep up with the pace used our language in his and act as a watchdog, to in successfully challenging the bylaws. We Congratulations Zunera. of the changes. We have victory speech on election ensure that the coming are proud to have been an intervenor. fought hard, in spite of night: “A Canadian, is a changes not only respect, this, to uphold human Canadian, is a Canadian.” but advance, the protection BIG DATA UNDER BRIGHT LIGHTS CREATES SLAPP LEGISLATION rights. We have educated, The new Minister of of our constitutional rights. Big data is more than just ‘more In October, Ontario passed the advocated, and of course, Immigration, Refugees and 4 litigated. We have litigated Citizenship, when asked in We will also be focusing 3 data’. It is unprecedented amounts Protection of Public Participation a lot, building a public an interview about whether our attention here at home of data, linked and analysed Act, aimed at stopping strategic interest litigation program they would act now or because the BC government in ways never before imagined. The lawsuits, commonly referred to as that is the finest and most wait for the BCCLA to win has much work to do to implications for individuals’ rights are SLAPPs (Strategic Litigation Against prolific in the country. its court challenge, said: ensure that this province is vast. In early October a major multi-year Public Participation)—a tactic used by an “Why would we wait for one that respects people’s funded research project was announced individual or company to silence critics. Right now, we have a court challenge when we fundamental rights and to tackle this issue. We are delighted to We believe that SLAPPs represent a real four active test cases agree with that challenge?” freedoms. be working with the country’s leading danger to the exercise of free expression directly challenging the We will make sure that scholars on this critically important in this province and across Canada. We constitutionality of federal any new law eliminates On these and many more project. Policy Director Micheal Vonn will will work to ensure more provinces follow laws and actions, to say two-tier citizenship, period. issues, when the federal lead BCCLA’s work. Ontario’s lead. nothing of the many and provincial governments court cases in which we The government has do the right thing, we will are acting as intervenors. also said it will review applaud. Where they fall SUPPORT THE BCCLA Our litigation capacity is the forest of mandatory short, as all governments a critical backstop to all of minimum sentences that inevitably do, we will Join the movement to protect human rights and civil liberties across this our other work, and it is have been put into the attempt to work with them country. Become a BCCLA donor today at www.bccla.org/donate the sharpest tool that we Criminal Code, which the to improve legislation. have in order to achieve BCCLA has argued result And when this fails, we our mission. This remains in significant injustice by will remain ever-ready to the case regardless of eliminating the discretion challenge our governments who holds the reins of of judges to impose fit in the courts. government. punishments.

democratic commitment 2 BCCLA democratic commitment 3 BCCLA FREE EXPRESSION FREE EXPRESSION

continued from page 1 BLACKLISTED/REDACTED information laws. to information regime. CENSORED, BUT NOT and Ambassadors were was because of “the artist’s NO-MORE This new government SILENCED: A TIMELINE advising people not to views on the oil sands.” Ultimately, it was Franke’s committed in their assist the “Franke James” Just days after the election use of the access to platform to reforming In the Spring of 2011, show in any way. “They never expected that Franke put out a new information regime that Canada’s broken access to Franke James was I would dig so hard to find visual essay entitled I am no allowed her to expose the information system, and preparing to send her out the truth. But to me, longer ‘the blacklisted artist’. truth. The laws helped we will make it our priority climate change artwork to it’s so incredibly shocking In it she expressed her to expose government to make sure they follow Croatia for a solo exhibition “If art has to even to this day… If art has “hope that misconduct even when through. to tour numerous European agree with to agree with government can do a better job than his officials tried to cover their tracks. But the process Over the last year and cities. The exhibition government policy, then art is predecessors at defending was designed to inspire government propaganda” Canadian’s right to free was overly restrictive, a half the BCCLA has youth to take personal policy, then art expression”. and attempts to withhold been honored to work responsibility to reduce is government FRANKE JAMES IS YOUR information via redaction with Franke, and we look their carbon footprint and FAULT We share Franke’s hope were too far-reaching. forward to continuing to create their own climate propaganda”. on that front, and we also collaborate with her in change art work. It was just believe her story highlights Canada is now ranked the future on both free – Franke James Unfortunately for those th the kind of work Franke who aimed to silence a second critical area for a dismal 59 out of 102 expression, and the public’s had dreamed of doing. Franke’s message, their policy reform—access to countries for our access right to know. When news broke about efforts backfired rather Then the ambitious touring the canceled tour, the spectacularly. Franke show fell apart. The government denied any wrote: sponsoring NGO in Croatia interference, telling Franke informed Franke that they that funding was not “Ironically, I have their ART FOR A CAUSE had been warned not to withdrawn, but had never heavy-handed censorship show her art and that her been promised in the first of my art to thank for FRANKE JAMES is donating her art at cost to support the work of the BCCLA. To purchase freedom of expression place. “That was a lie. But lighting a fire under Franke’s art and books online please visit: https://bccla.org/Franke. was being trampled by I couldn’t say it was a lie me and inspiring me to officials from the Canadian unless I applied for Access speak up and fight for • Prints! Franke has generously done an exclusive government. The NGO’s to Information to actually my rights. By censoring run of autographed posters from her new Free grant for climate change get the truth” said James. my art they inflamed my Expression series for the price of $25 CAD each. education was cancelled, passion and the passion but far more damning So, she did. Using all of many people around • Online auction! Two autographed bus shelter for the show was that the tools available to the world who care about sized pieces will be auctioned online. Winners high-level bureaucrats her, Franke took on the freedom of expression, choose from one of six designs from Franke’s new Canadian government democracy, civil rights and series Six Easy Ways to Crush Free Expression. to find out what really the environment…” Bidding starts at $400; less than half of their happened. It took years normal retail price. but eventually she received Franke wrote books and over 2,000 documents, put information online. She • Books! In Banned on The Hill: A True Story researched connections crowdfunded to get the about Dirty Oil and Government Censorship, between people, truth out and succeeded Franke James tells the story, complete with her deciphered email threads in hanging her climate stunning visuals, of how she fought back against and relentlessly pursued change artwork on transit government censorship. answers. posters in Calgary, Halifax, Washington, DC, and right Documents revealed that along the Prime Minister’s much of the official concern way to work in Ottawa.

democratic commitment 4 BCCLA democratic commitment 5 BCCLA POLICY POLICY

are subject to a minimum currently have no right of two weeks of mandatory to appeal if their claim is BOARD OF DIRECTORS imprisonment, possibly in denied, and are subject CANADA MUST Lindsay Lyster, President a medium-security prison; to immediate removal Caily DiPuma, Vice President in certain circumstances from Canada. Those from WELCOME REFUGEES Jason Gratl, Secretary they may be detained for DCO countries have a Alan Rowan, Treasurer an entire year. mere 30 days to prepare AND TREAT THEM JUSTLY ONCE THEY GET HERE Warren Bourgeois, Alister Browne, for their hearing. In June, Michael Byers, Paul Champ, 3 We cannot arbitrarily and the Federal Court ruled Larry Cohen, Tom Gore, discriminatorily divide that denying a right Robert Holmes, Jacob Hunter, refugees into groups of of appeal to claimants Stephen Katz, Ed Levy, wo months ago, a opinion or belief.” These That is too great a risk for Richard Marcuse, John Russell, ‘more’ or ‘less legitimate’ from DCO countries photograph of Syrian are the very same rights Canada.” Tom Sandborn, Steven Savitt, claimants. was unconstitutional Tthree-year-old Alan that the BCCLA has fought Paul Schachter, Kirk Tousaw, and “serves to further Kurdi lying dead on a for in Canada for over 50 There is no evidence Reg Whitaker, Vanessa Wolff, The Minister of marginalize, prejudice, Turkish beach captured the years. that terrorists are trying Eric Wyness, Fadi Yachoua Immigration, Refugees and stereotype refugee

hearts of people around the to enter Canada by STAFF and Citizenship has the claimants from DCO world countries.” The federal . While hard-working As a signatory of the UN pretending to be refugees. Josh Paterson, Executive Director power to classify particular organizers across Canada Convention Relating to the The events in Paris do not Jim Braunagel, Office Manager countries as Designated government should not have been mobilizing Status of Refugees, 1951, change this. Catherine Hart, Donor Relations Countries of Origin (DCOs) appeal this ruling. around migrant justice and its Optional Protocol, and Digital Strategy Coordinator based on a set of vague issues for years, Alan’s 1967, Canada has a legal Protecting individuals Charlotte Kingston, Director of and arbitrary criteria 5 The Canadian Border photograph fomented obligation to provide from violent crime is a Community Engagement supposedly demonstrating Services Agency Nathanel Lowe, Outreach and support amongst a broader refuge for those fleeing legitimate public safety Communications Coordinator that these countries “do (CBSA) must be held

public. persecution – but we must objective; restricting Grace Pastine, Litigation Director not normally produce accountable.

also advocate for a system rights in ways that have Alyssa Stryker, Caseworker refugees”. But this system In the words of Erika that treats them justly once no discernible link to real Laura Track, Counsel does not adequately take The CBSA (enforcers Feller, Assistant High they get here. public safety objectives is Micheal Vonn, Policy Director into account the fact that of the Immigration and Commissioner for not. in some comparatively Refugee Protection Act) Protection at the Office of Below are five wrongs BCCLA OFFICE: stable countries, particular have massive police 900 Helmcken Street, 2nd floor the High Commissioner for we must right if we are 2 We must end Vancouver, BC V6Z 1B3 minority groups face powers, and yet lack any Refugees (UNHCR), “The serious about offering real mandatory, TEL: 604.687.2919 incredibly severe form of independent refugee problem is, very sanctuary for those fleeing unreviewable, EMAIL: [email protected] oppression. The new oversight. There is no centrally, an issue of rights persecution. warrantless detention. FAX: 604.687.3045 government has said it will formal complaints process – of rights which have been bccla.org review this unjust practice. or independent civilian violated and of rights, as 1 We must stop conflating Groups of refugees investigatory body that set out in international law, refugees – especially who arrive in ways The Democratic Commitment is a 4 Unrealistic timelines can look into cases where which are to be respected. Muslim refugees – with that are perceived to publication of the British Columbia Civil and unfair lack of appeal someone is injured or dies Liberties Association. The BCCLA mandate A refugee, classically terrorists. be ‘irregular’ by the is to preserve, defend, maintain and options must end. while in CBSA custody. defined, is someone who is Minister of Public Safety extend civil liberties and human rights across Canada through public education, persecuted, denied security In a recent Facebook Q&A, can face mandatory, complainant assistance, law reform Claimants must be given The BCCLA is committed of person or freedom former Prime Minister unreviewable, warrantless and litigation. ample time and support to fighting for a refugee from discrimination on wrote, detention – a horrifying to make the strongest system that is ready account of race or ethnicity, RETURN UNDELIVERABLE “We cannot open the welcome that flies in the CANADIAN ADDRESSES TO: possible case, and robust to respond justly and or is unable to exercise floodgates and airlift tens face of the constitutional BC Civil Liberties Association appeal options if their equitably to people of all fundamental human rights of thousands of refugees principle that nobody can 900 Helmcken Street, 2nd floor case is rejected. But some nationalities who may seek like freedom of expression, out of a terrorist war zone be arbitrarily detained. Vancouver, BC V6Z 1B3 classes of refugee claimants refuge here. association, political without proper process. Those over the age of 16

democratic commitment 7 BCCLA democratic commitment 6 BCCLA AT THE BCCLA SUPPORTER PROFILE

MEET OUR NEW TEAMMATES PROFILE OF A BCCLA SUPPORTER – PAUL ST. PIERRE Paul St. Pierre dedicated his life to character, lies, and storytelling; to privacy, relentless The BCCLA is a small organization with just nine staff members. This year we were resistance to rules and rulers, and to freedom. very sad to say goodbye to a number of our wonderful staff as they moved on to new and exciting opportunities, and we’ve been very lucky to welcome three new dynamic Acclaimed writer, reporter, member of parliament, diplomat, Vancouver Sun editor, BC members to our team. cowboy legend, world’s last living non-economist, wild goose chaser and duck plucker, freeman of Williams Lake, BC police commissioner, scofflaw, inventor of the country gate On behalf of the staff and board, the Association would like to extend our deepest husband and wife team competition in the Anahim Lake Rodeo, Paul supported the BC gratitude to the staff members who have moved on including Carmen K. Cheung, Raji Civil Liberties Association right up to his death in 2014, and even after, through a legacy Mangat, Jasmine Yen, and Alana Prochuk. Their work has left an indelible mark not only gift. Why? Let Paul tell you: on this Association, but on the fight to protect rights in Canada. We are so pleased to welcome: A monstrous idea has gained Bureaucrats are not bad, cruel, wide acceptance – that you and or wicked people. No matter, Laura Track, Counsel Catherine Hart, I were not born to be free and know your enemy and fear his Donor Relations and Digital have no natural rights; that inefficiency even more than his Laura Track has Strategy Coordinator our only rights are those that malevolence. dedicated her legal somebody wrote on a piece of career to social justice Catherine Hart joined the paper. Support the Civil Liberties work, and joined the BCCLA in January of 2015. Association. Future generations BCCLA in 2015 after many She brings a background in Born free, I died a criminal. will see it as a lonely champion of years of experience in non- communications, outreach Everyone is a criminal liberty during long, dark years. profit legal organizations. Laura joins and fundraising from her previous now. More laws make more our team from West Coast LEAF, where work at the Freedom of Information criminals. Now not an acre of Be brave. You are more powerful she served as Legal Director from 2011 and Privacy Association (FIPA), and Canada can be walked without putting a than you realize. Despite Big Brother’s through 2014. Before that, Laura was OpenMedia.ca. Catherine has a Masters foot into three or four cowflaps of law. awesome and growing power, ordinary the Housing Campaigner at Pivot Legal in Communication from Simon Fraser men and women retain hopes, dreams Society. University. Her academic research Laws are passed “for the good of the and high ethics. Out of that fathomless, focused on surveillance; national security; people”. In all history, no other reason to still pool of the soul, freedom will emerge Laura completed her law degree at UBC privacy and civil liberties. enchain mankind has ever been offered. again, some day. in 2006 and clerked at the BC Supreme Court. In 2012, she earned a Masters Catherine is the person to contact if you Read more: www.bccla.org/PaulStPierre degree in International Human Rights have any questions related to donating Law from Oxford University. She is also or tax receipts. You can reach her at an adjunct professor at the University [email protected], or at 604.630.9757. of British Columbia law school. YOUR Support the BCCLA for generations to come Nathanel Lowe, While there, Nathanel spearheaded the Communications and Outreach Community Engagement Academy, and lEGACY Leaving a gift to the BCCLA in your will allows you to provide Coordinator ran the country’s most linguistically long-term support to defending human rights and civil liberties diverse phone bank (working in 17 in Canada, and is a meaningful contribution to the future of the Nathanel comes to us languages). OUR organization. from his previous position as the Community Outreach Nathanel is the person to contact to find FUTURE If you’d like more information about planned giving, please contact Coordinator for Asian Americans out more about volunteer opportunities. Charlotte Kingston, Director of Community Engagement at Advancing Justice-LA, the USA’s largest You can reach Nathanel at nathanel@ 604.630.9745 or via email at [email protected] Asian American civil rights organization. bccla.org, or 604.630.9750.

democratic commitment 8 BCCLA democratic commitment 9 BCCLA LEGAL CASES LEGAL CASES

YOUR RIGHTS ON TRIAL The BCCLA is intervening in a variety of cases aimed at protecting rights and freedoms. Here are two cases we are working on. innocent until proven guilty pre-trial incarceration

Goodwin, et al. v. British Columbia (Superintendent of Motor Vehicles) R. v. Safarzadeh-Markhali

The Supreme Court of where the purpose of rather than criminal, and The Supreme Court of centres do not provide law. To the contrary, Canada issued its decision sanctions is punitive and the consequences not to be Canada heard this appeal educational, retraining or it creates a structural in this case on October aimed at redressing a true penal consequences. on November 4. At issue rehabilitation programs to impediment against 16. The Court ruled that wrong done to society at The Court upheld the was an amendment to accused persons in pre-trial proportionate sentencing, changes to BC’s drinking large, the protections of BC Supreme Court’s Canada’s sentencing laws custody. which undermines the and driving law do not s. 11 of the Charter apply. decision that the regime is brought about by the 2009 purposes and principles violate the presumption Here, the BCCLA argued unconstitutional insofar as Truth in Sentencing Act that However, under the new of sentencing and of innocence protected by that the sanctions clearly it applies to people who changed how time spent s. 719(3.1) of the Criminal will result in grossly section 11 of the Canadian include aspects aimed blow a “fail”. Given the in pre-sentence custody is Code, a person denied disproportionate sentences Charter of Rights and at punishment rather serious consequences of credited. bail primarily because of in reasonably foreseeable Freedoms, but do violate than mere compliance registering a “fail” and a previous conviction is circumstances. Moreover, the right to be free from with traffic regulations, the inability of drivers In the normal course, a ineligible for enhanced it will disproportionately unreasonable search and including a 90 day to challenge the basis on person denied bail may credit – credit for time impact poor and seizure for drivers who license suspension and which those consequences receive up to 1.5 days of served in pre-sentence otherwise disadvantaged blow a “fail” on a roadside significant fines and fees. are imposed, the Court credit for each day spent custody is limited to 1:1. accuseds, whose personal screening device. The regime stigmatizes found a violation of the in pre-sentence custody. circumstances may prevent offenders and promotes right to be free from The underlying rationale The BCCLA intervened them from getting bail. The BCCLA intervened specific deterrence of unreasonable search and for this enhanced credit in this case to argue that in this case to argue that future conduct, as well seizure. is to reflect the fact that the denial of enhanced The BCCLA is represented the drinking and driving as punishment of past pre-trial custody time does credit for pre-sentence by Nader Hasan and law has a penal impact on conduct. The BCCLA is represented not count towards parole custody serves none Gerald Chan of drivers and engages the by Claire Hunter and eligibility and statutory of the legitimate Stockwoods LLP. presumption of innocence The Supreme Court Eileen Patel of Hunter release, and local detention purposes of sentencing protected by s. 11 of the disagreed, finding the Litigation Chambers. Charter. We argued that regime to be administrative

UPDATE: END SECOND-CLASS While Canada’s new Minister of Justice settles into her work, the Department of Justice CITIZENSHIP CASE has requested an adjournment of our case so that they can get new instructions from the new government. We've agreed to give the Department of Justice some time to THE NEW receive new instructions. Meanwhile, the Prime Minister has instructed the Minister of committed during the election campaign to repeal Immigration, Refugees and Citizenship to repeal the parts of the law that create second changes to the Citizenship Act that allow for class citizenship. We will be back in court on December 7 for a case management citizenship stripping, exile, and unequal treatment conference with the Federal government to ensure these provisions will be repealed, and of Canadians based on where they or their family repealed quickly. We'll have further updates after December 7. Stay tuned. comes from.

democratic commitment 10 BCCLA democratic commitment 11 BCCLA ACCESS TO INFORMATION

THE BLACK HOLES IN THE ACCESS TO INFORMATION ACT

strong access to over 30 years ago, Canada the country to push for information system is was a world leader on urgent reform to our access Avital to maintaining a this important democratic to information regime. healthy democracy. Access right,” said Toby Mendel, Canada’s newly sworn in to Information laws are Executive Director of the government has committed needed to hold politicians Centre for Law to reforming the and public broken system, and institutions organizations accountable, across the to keep country will the public be watching to informed and make sure that to ensure that happens. the truth can be uncovered “It is long past and exposed. time these changes were made,” said The public Vincent Gogolek, Executive has the right Director of Freedom of to obtain the information and Democracy. “But Information and Privacy it needs to participate decades of stagnation Association. “The black meaningfully in the have left us in a miserable holes in the Access to democratic process, while 59th position globally, far Information Act have to be also holding Canada’s behind countries like India, closed.” Combined with public officials and Mexico, South Africa and deep access to information Members of Parliament Slovenia.” problems at the provincial accountable. The current level, there is much work system is failing Canadians. That’s why the BC Civil to do. Liberties Association “When the Access to has joined a coalition of Information Act was adopted organizations from across

We acknowledge the financial support of the Province of British Columbia and the generous support of the Law Foundation of BC

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