Journal of the British Columbia Civil Liberties Association Volume 32, Number 4 March 1999 Annual Report for 1998 Annual General Meeting The Annual General Meeting of the B.C. Civil Liberties Association will be held Thursday, March 25, 1999 at 7:30 p.m. in the Segal Centre (Rooms 1400–1410) at the Downtown (Harbour Centre) Campus of Simon Fraser University 515 West Hastings Street, Vancouver, B.C.

Presentation of the Third Annual Reg Robson Civil Liberties Award will be made to the family of the late Tara Singh Hayer

Guest Speaker: Joseph Tussman, Professor Emeritus of the University of Califonia at Berkeley The B.C. Civil Liberties Association takes pride that prominent individuals from a variety of backgrounds and political persuasions demonstrate their belief in the importance of the work of the BCCLA by lending their names to our list of Honorary Directors.

David Barrett Ron Basford, P.C., Q.C. Thomas Berger, Q.C., O.C. Robin Blaser Kim Campbell, P.C., Q.C. Andrew Coyne Hugh Curtis Bill Deverell F.E. Devito John Fraser, P.C., Q.C. Gordon Gibson Patricia O. Hall Don Hamilton Mike Harcourt Walter Hardwick Rev. Phillip Hewett Art Lee Alex MacDonald, Q.C. Rafe Mair Darlene Marzari Harry Rankin, Q.C.

Honorary Directors Honorary Father James Roberts Svend Robinson, M.P. Rev. John Shaver Homer Stevens David Suzuki

2 The Democratic Commitment 32:4 March 1999 The mandate of the B.C. Civil Liberties Association is to promote, defend, sustain and extend civil liberties and human rights in the Province of British Columbia. Contents

A Brief History of the BCCLA ------4 President’s Message------7 Kay Stockholder, 1928–98 ------10 Reg Robson Civil Liberties Award ------11 Brickbats & Bouquets ------12 1998 Highlights ------13 New Association Positions------19 Casework ------20 Board of Directors ------30 Volunteers ------32 Staff ------34 Membership Report------35 Treasurer’s Report ------36 Auditor’s Report ------37 Financial Statements------38

B.C. Civil Liberties Association Annual Report for 1998 3 The 1960s he BCCLA was launched in 1962 The Board of Directors began creating Twhen a group of 80 people met to a series of position papers setting out the create an organization comparable to BCCLA’s views on a variety of civil the ACLU. A few months later, we liberties topics. were incorporated under the Society Among the earliest issues addressed Act, with a bank balance of $227.45. were: Throughout the 1960s the BCCLA n legal aid operated as a volunteer organization, addressing issues of local and n minority rights provincial concern, and began to n censorship publish quarterly issues of The Democratic Commitment. n police misconduct.

The 1970s uring the 1970s the Association n played a major role in the development Dgrew both in influence and in of civilian complaint procedures under the financial stability. A small office was Police Act, and in the development of the opened, and we began to receive Human Rights Act — at the time each project grants for our work. Our work was the most progressive legislation of its was also financed by our 400–500 kind in Canada members. n mounted a constitutional challenge to The Board of Directors and other compulsory features of the Heroin volunteers continued to be the source Treatment Act of intellectual and public policy initiatives. n published three widely distributed handbooks: During this period the Association: • Arrest: Civil Rights and Police n acted as a prominent advocate for a Powers provincial Rentalsman and a provincial • Discrimination Ombudsman • Youth and the Law. A Brief History of the BCCLA the of History Brief A

4 The Democratic Commitment 32:4 March 1999 The 1980s he 1980s saw the BCCLA come •the establishment of the Canadian Tinto its own, both as an Security Intelligence Service (CSIS) organization with long-term financial n production of a major brief on policing viability and as a force in the public life the police of British Columbia. This growth was not without its ups and downs: in the n successful legal challenges to: mid-eighties we lost a substantial operating grant and were close to •the provincial government’s attempt to closing our doors. remove abortion from coverage under A commitment of funding from the the Medical Services Plan Law Foundation of B.C. – which •compulsory prayers in schools remains to this day – staved off • the disparate size of electoral ridings in disaster. This commitment, together B.C., and with an aggressive campaign to locate new supporters, brought the •the lack of absentee voter provisions in Association back to financial health. the Election Act Among the many accomplishments n development of the concept of in the 1980s, the following stand out: ‘catastrophic rights’– the rights of persons with terminal illnesses to greater access to n the publication of a detailed and experimental therapies – and the highly regarded study of racism in publication of the book Catastrophic Vancouver Rights n a well-received submission to the n publication of Liberties, a collection of Supreme Court of Canada on BCCLA position papers on controversial intervention by public interest groups in topics legal cases n a first of its kind study of AIDS n appearances before several discrimination in Canada and the Parliamentary committees, including publication of a widely distributed report those considering: of the study •a proposed Charter of Rights n publication of revised versions of the and Freedoms handbooks Arrest: Civil Rights and •the activities of the RCMP Police Powers, Discrimination, and (the MacDonald Commission) Youth and the Law.

B.C. Civil Liberties Association Annual Report for 1998 5 1990 to 1997 hroughout this period the BCCLA’s influence n testified before a number of government Tcontinued to grow as a result of our impressive commissions and committees, including: track record in the courts, our taking of balanced •the Oppal Commission of Inquiry into positions on difficult issues, our willingness to act Policing in B.C. behind the scenes in a consultative role, and our increasing access to the media. •the Royal Commission on Electoral Reform We continued to benefit from stable funding •Parliamentary committees studying sources, including generous long term support from changes to the definition of sexual assault, individuals and a substantial operating grant from the the so-called “rape shield law”; Law Foundation of B.C. amendments to the Canadian Security During these years we: Intelligence Service Act; sentencing and corrections reform; amendments to the n intervened at the Supreme Court of Canada in: Young Offenders Act; and the regulation •R. v. Butler, a test of the obscenity provision in of new reproductive technologies the Criminal Code n produced and submitted to the Department •R. v. Cuerrier, a review of the law on consent of Justice two major briefs, one on euthanasia where important information (the HIV status of and assisted suicide, the other on the use of the accused) is not disclosed DNA for criminal investigation purposes •a reference regarding the constitutionality of n led the fight against the non-consensual Saskatchewan’s electoral boundaries collection and disclosure of sensitive information n with co-plaintiff Little Sister’s bookstore, in the PharmaNet data bank brought a major constitutional challenge to Canada n made a detailed submission to UBC criticizing Customs’ censorship powers to a 40-day trial in its handling of the McEwen Report into B.C. Supreme Court, and then to the B.C. Court allegations of racism and sexism on campus of Appeal n made several submissions to SFU on changes n were closely involved in consultations to its harassment code concerning the new Freedom of Information and n produced and distributed brochures on drug Protection of Privacy Act, and the creation of a testing in the workplace and writing a letter of new citizen complaint process under the Police complaint to the police Act n n made submissions to B.C. Corrections on organized a major conference on the Charter overcrowding in prisons, and the dispensing of of Rights and Freedoms, and published the methadone in prisons proceedings n n consulted with the Ministry of Children and wrote, published and distributed The Privacy Families regarding a complaints process, and Handbook, a practical guide to privacy rights in with the Ministry of Finance regarding the B.C. proposed sale of BC Online n intervened in Trinity Western University v. n developed and upgraded a web site B.C. College of Teachers containing a variety of information on the n intervened in the hearing of a complaint against BCCLA, its positions on various issues, and columnist Doug Collins before a B.C. Human placed online the full text of many position Rights Tribunal papers.

6 The Democratic Commitment 32:4 March 1999 “The most beautiful thing in the world is freedom of speech.”

Even though these words were first spoken over 2300 years ago by Diogenes, the ancient Greek Cynic, they have a distinctly modern sound. After all, without free speech and other basic civil liberties, we would lack the cornerstones of by Andrew Irvine contemporary democracy.

he freedom of all people to speak even this became illegal. When one edition Topenly, without fear of government of a newspaper was banned, the paper reprisal, is what allows us as citizens to changed its masthead, publishing the same raise issues which we feel to be material under a new name, free from the important. Freedom of speech, banning order. Rather than publish an association, and peaceful assembly, and illegal photograph of a violent police action, the freedom to exercise our franchise another paper printed a “connect-the-dots” are what allow citizens to exercise their version instead, together with explicit sovereignty over government. As a instructions that readers were not to country’s civil liberties are weakened, its connect the dots. claim to being a democracy is Blank spaces were also banned, as correspondingly diminished. was obliterated text. Both had been used The old Republic of South Africa by the Weekly Mail to indicate the extent provides a case in point. Regardless of of censorship but, as Anton Harber, a whether we think of it as a democracy founder and co-editor of that paper reports: with an extremely limited franchise, or as The authorities realised that nothing a democracy in name only, by the 1980s frightened the public more than white that country’s government had enacted spaces in newspapers: vivid imaginations over 100 laws restricting the movement filled the spaces with reports far worse President’s Message President’s of ideas. In some respects these laws than those that had been removed. were remarkably powerful: newspaper and magazine articles were censored, Hence there was the absurdity of making it journalists and writers were detained, illegal to print nothing! editors were prosecuted, and papers Other policies were equally comical yet were closed. frightening. The Key Point Act made it an Yet even in those dark days many of offence to photograph or publicize South Africa’s censorship laws remained so-called “key points” around the country. largely impotent. Speeches by political At the same time, the list of sites that leaders were smuggled in and out of had been designated by the government prisons and around the country, and it as “key” remained classified. The only became a badge of honour to possess way for a newspaper to discover them, no matter how dry or boring they whether it was in possession of an illegal might be. Legal challenges to censorship photograph was to publish it, and then were mounted, editorials against wait to see whether charges were laid. apartheid were published, and many During this time, the amount of material government policies were ridiculed, until censored was phenomenal. The peace sign

BC Civil Liberties Association Annual Report for 1998 7 was banned, as was the book any statement, publication, society which wants to eliminate Black Beauty. The film Roots notice, sign, symbol, emblem or hate, it is important to know who was banned for the reason that: other representation that . . . is the hatemongers are. Before likely to expose a person or a electing candidates to our local a substantial number of blacks group or class of persons to school boards, it is not only would, judged on the hatred or contempt because of probabilities, substantially interesting to know their views on the race, colour, ancestry, place evolution and multiculturalism, on experience great or greater hate of origin, religion, marital status, against the white [race] as a history and on race, it is essential. family status, physical or mental Because censorship laws regularly result of seeing this film.... disability, sex, sexual orientation push this type of information or age of that person or that eading this, we may feel underground, it is not accidental group or class of persons. Rrelieved that censorship of this that such laws are typically kind does not and could not occur Thus the South African and accompanied by increased degrees in Canada. Yet this is not so. Many Canadian cases differ only in the of state surveillance. At the same of the cases discussed in this details of their application. time, when this information does Annual Report indicate just how not go underground, it is often fragile our civil liberties remain, Without civil liberties, given even greater prominence in even in British Columbia. The citizens are no longer the media and in the public removal of protest signs at APEC, consciousness than it deserves. the censorship of gay and lesbian able to exercise their Thus, censorship laws are reading material, and the sovereignty over typically either ineffective in encroachment upon the religious government. achieving their goals, or else they freedoms of teachers trained at “ tend to hamper society’s need to Trinity Western University — all know who the hatemongers are, of these serve to remind us just Now perhaps it is these details what role they play in our how easy it is for governments to of application which are important. communities, and what type of overstep their authority. Even Perhaps, unlike the old South influence they have on public worse, current law explicitly gives African government, Canadian policy. Given the choice between many Canadian governments the governments can be trusted to asking the state to identify these power to place limits on our censor only that speech which people and allowing them to freedom of expression, and for deserves to be censored. identify themselves, most of us will many of the same reasons as in Unfortunately, such trust is prefer the latter. the old South Africa. bound to be illusory. Not only do And there is more. Not only Just as a South African court state agencies have a poor record are censorship laws both decided that Roots should be with regard to censorship, our ineffective and contrary to the banned because failure to do so abdicating of this responsibility to principles underlying democracy, would increase the chance that the state is equivalent to throwing they also divide a country’s one group in society would likely away the very building blocks of population into first- and second- “experience great or greater hate” democracy. Without civil liberties, class citizens. If university towards another, the B.C. Human citizens are no longer able to professors and government Rights Code bans some types of exercise their sovereignty over appointees are allowed to debate speech for exactly the same government. the question of how many people reason. In the words of the famous died in the Holocaust, but Ernst Section 7(1)(b) of the Code U.S. Supreme Court justice, Hugo Zundel and Doug Collins are not, states that: Black, “Free speech is always the we have in effect set up the type A person must not publish, issue deadliest enemy of tyranny.” of division between citizens which or display, or cause to be But the advantages of free no healthy democracy can long published, issued or displayed, speech do not end here. In any support. Free speech is something

8 The Democratic Commitment 32:4 March 1999 we extend to the foolish as well as Of course this means that we wish her well and hope that she the wise. Once we begin to decide have to tolerate words and ideas will stay in touch. Her who may or may not be granted with which we may passionately replacement, Pam Murray, has the privilege of free speech, we disagree. Yet this is simply the already proved to be a very have begun the slide towards a price we pay for a healthy welcome addition to the office, dictatorship of either the left or the democracy. Since the BCCLA is and I am sure that she, too, will right. one of the few organizations which prove to be invaluable to the defends the free speech rights of work of the Association. Free speech means very citizens from all points on the Later this year Russell little if it is to be political spectrum, the Association Wodell, our Publications extended only to those has earned a high degree of Director, will also be leaving due respect from its critics as well as to budget cutbacks. For ten with whom we happen to its supporters. years Russell has served the agree.“ Association in a variety of n closing, let me say that, since capacities, and he has done so Iits inception, the strength of the with consummate ability and This is a point which supporters BCCLA has always been the style. It is no exaggeration to say of the BCCLA have recognized for people who have contributed their that, although he has worked over 35 years, and it is for this time, resources and expertise to primarily behind the scenes— reason that the BCCLA has the Association. In my first year designing our publications, continually emphasized the as President I have been helping with the day-to-day nonpartisan nature of civil liberties. continually impressed by this administration of the Association, Free speech means very little if it support— by the devotion of our and establishing our web site is to be extended only to those financial contributors, by the high (www.bccla.org) —the with whom we happen to agree. degree of expertise which our Association’s public profile has Thus the BCCLA has consistently volunteer board members bring benefitted enormously from defended the rights of citizens, to the many issues which the Russell’s hard work and attention regardless of their place on the Association faces, and by the to detail. Like Linda, Russell will political spectrum. high quality and professionalism be missed and I hope that he, We have spoken out on behalf of our staff. too, will stay in touch with his of the free speech rights of those For this reason, I would be many friends in the Association. who advocate traditional family remiss if I did not take a moment No one can doubt that the values, including Trinity Western to thank our many supporters, BCCLA is better off because of University and the Citizen’s and to mention publicly the large their time with us. I know that I Research Institute. debt we owe to them. Without speak on behalf of the entire At the same time, we have them, the Association simply membership when I thank them defended the free speech rights of could not carry on its business. both for the years they have Little Sister’s Bookstore and other In addition, I want to devoted to the cause of civil well-known advocates of gay acknowledge the invaluable work liberties in British Columbia. rights. of two staff members for whom We have also committed this Annual Report will likely be resources to defending the free their last. Best wishes to you all, speech rights of Doug Collins and In December Linda William Berscheid, as well as the Shpikula, our Office Manager, very same rights of those who resigned for personal reasons. advocate the anti-hate laws under For three years Linda has been a which Collins and Berscheid have mainstay of the Association and President been charged. we will miss her greatly. We

B.C. Civil Liberties Association Annual Report for 1998 9 Kay Stockholder 1928 to 1998

Dear Kay: Association have admired and The BCCLA was deeply It often happens that we don’t saddened by the death tell the people we love and respected the way you grew in of Kay Stockholder, who respect how much we appreciate your ability to lead us in our passed away on June them. It is sad for all of us that efforts to come to grips with 18, 1998 after a long your illness has come to the point difficult civil liberties issues and battle with cancer. Kay that we are thinking about our last to convey our thoughts to the had served on the Board goodbyes, but I hope that we can public. You captured not only since 1991, most notably all take some small comfort in our minds but our hearts with as our President from seizing the opportunity to tell you your relentless energy and 1995 to 1998. how much you have meant to the infectious good humour. Board, the staff and the Your courage and dedication The following letter was supporters of the BCCLA. in hanging in with the work of written to Kay by former When John Dixon and I first the Association through so much of a long and painful illness has BCCLA President Phil approached you about your Bryden on behalf of the willingness to succeed Andrew been an inspiration to us. On Board and staff, and Wilkinson as President of the behalf of all of us who treasure delivered to her BCCLA, we really had no way of the work of the BCCLA, it has in May, 1998: knowing that you would do the job been an honour to have you as so well. All of us who have been our president, and we will sorely involved in the work of the miss you. Phil Bryden

10 The Democratic Commitment 32:4 March 1999 Tara Singh Hayer: 1936 to 1998

Each year this award honours a person He once said that it is a journalist’s job to tell the or persons who, in the opinion of the truth, no matter how many people do not wish to Board of Directors, made a substantial and read it. It is hard to beat that pronouncement for long-lasting contribution to the cause of straight-forward sanity and integrity, and it would civil liberties in B.C. and in Canada. also be difficult to craft a better formulation of the n November 17th of last year, Tara Singh civil libertarian’s often unpopular role. OHayer was assassinated in his garage But Hayer did not die as a martyr for the idea as he transferred himself from his van to a or right of freedom of expression, any more than wheel-chair. Hayer was a publisher with Gandhi himself died for that fundamental civil liberty. something to say, and he wielded his Surrey He died, as Gandhi died, for what he actually said newspaper — the Indo-Canadian Times — and taught: that the deadly reflex of violence must as a strong voice for political moderation and be replaced with the habit of reasoning together. non-violence among Sikhs. It falls to less heroic types, such as civil A strident voice, some might say, since libertarians, to draw out the full implications of that he was most definitely not “politically lesson, and to work toward its realization in our correct” or modest or gentle in his journalistic politics and laws. There can be no reasoning together campaign against Sikh violence. He was a without speech, and speech about public concerns passionate, outspoken, and tenacious that really matter is bound to cause hurt or offense. journalist who sank his teeth deeply into his Violent and repressive reaction in the face of such stories. pain is commonplace, and creates a demoralizing He was very aware of the danger he cycle. ran in doing this — particularly after a series A free civil society cannot long exist when only of assassination attempts had left him popularity or indifference can shield a speaker from disabled and in constant pain — but punishment for what he says. Tara Singh Hayer lived ultimately fatalistic about his chances of and continued his work in the face of such a threat.

Reg Robson Civil Liberties Award Liberties Civil Robson Reg survival. And, it might be said, of the relative We are pleased to make him the recipient of the importance of survival. Third Annual Reg Robson Civil Liberties Award.

B.C. Civil Liberties Association Annual Report for 1998 11 Our First Annual Reporting of the Best and Worst Defenders of Civil Liberties in British Columbia Brickbats to: n Andy Scott n The Surrey School Board Canada's former Solicitor-General, For upholding its classroom ban of the books Asha's for denying legal funding to Mums, Belinda's Bouquet, and One Dad, Two complainants who appeared before Dads, Brown Dads, Blue Dads, despite a B.C. the 1998 RCMP Public Complaints Supreme Court decision that found the ban to be Commission hearings into events unjustified surrounding the APEC conference held n The University of British Columbia in Vancouver For its decision that only women candidates could n The B.C. College of Teachers apply for the new Assistant Professor position in the For its continued refusal to certify the UBC Department of Physics and Astronomy teacher-training program at Trinity Western University on the ground that the University's code of conduct Bouquets to: regards homosexual acts as sinful n Rafe Mair n The B.C. Ministry of Health For his strong CKNW editorials on free speech For B.C.’s new Mental Health Act and freedom of assembly which significantly expands the criteria n Terry Milewski for involuntary committal and For his coverage of the Public Complaints treatment of non-violent mental Commission hearings into the RCMP crackdown patients at APEC n The Commissioner of Canada n The Law Foundation of BC Elections For its continued funding of important public interest For his decision to prosecute two organizations in 1998 citizens who chose to express their n The B.C. Transit Authority views on the electoral process by spoiling their election ballots For reversing its decision to regulate the content of newspapers and other publications that may be n The City of New Westminster Brickbats and Bouquets distributed free of charge at transit stops within For over-stepping its authority and greater Vancouver usurping court powers when it banned n The Globe and Mail, The National Post, convicted drug-dealers from large and The Vancouver Sun areas of New Westminster, and for invoking other, inappropriate police For their strong editorials defending the free speech tactics in its battle against street crime rights of British Columbians and all Canadians n The Prime Minister's Office n The University of British Columbia For filing formal complaints with the For its 1998 apology to the UBC Department CBC over the public broadcaster's of Political Science for the unwarranted and unflattering reports of alleged political damaging actions taken by the University involvement of the PMO in RCMP administration in response to unfounded 1995 security arrangements at APEC allegations of racial and sexual harassment.

12 The Democratic Commitment 32:4 March 1999 The APEC Hearings

ne issue dominated the civil process– in legal proceedings, in the Olibertarian agenda in 1998: the on media, and in an extraordinary submission again/off again RCMP Public to the leaders of the House of Commons Complaints Commission hearings into and Senate. the police stifling of student protests Included in that submission were during the Asia Pacific Economic documents which suggest that the Prime Cooperation conference at the Minister’s Office was concerned to strike University of British Columbia in 1997. the proper balance between the expression As a complainant, the BCCLA played a rights of protesters and the desire of major role in this affair, fighting a foreign leaders not to be embarrassed. rearguard action to keep the hearings We said: alive. Parliament — and all Canadians — Many of the other parties wanted should categorically reject the idea that the hearings scuttled, for varying there is a “proper balance” to be struck reasons. Many students wanted a 1998 Highlights 1998 here. The discomfort or embarrassment forum for wide-ranging complaints of visiting dignitaries is never a legitimate against Prime Minister Jean Chretien, reason for restricting the expression and raised motion after motion to rights of Canadian citizens. suspend the hearings in favour of a judicial inquiry. Some protesters It is essential that Canadians maintain bringing civil suits against the RCMP civilian oversight of the RCMP, addressing threatened to withdraw unless they not only individual conduct complaints but were granted funding for legal broader issues such as, in this case, representation. Federal government allegations that the police were used for lawyers released information overt political purposes. We regard the suggesting that panel Chair Gerald APEC hearings as a benchmark test of the Morin would be biased against the ability of the Commission to fill these roles. RCMP. The RCMP itself, long Editor’s Note: We are very pleased to say uncomfortable with the Commission’s that in early 1999 Ted Hughes was oversight role, brought a legal challenge appointed by the Commission to hear the of bias against the panel. Continually complaints. Mr. Hughes is a highly adjourned to deal with these procedural respected lawyer, a former Deputy Attorney motions, the hearings were finally General, and B.C.’s former Conflict of suspended upon Morin’s resignation. Interest Commissioner. His experience and Throughout this turmoil, the BCCLA credibility give us confidence that the steadfastly supported the hearing hearings will soon be back on track.

B.C. Civil Liberties Association Annual Report for 1998 13 Discriminatory Speech ection 7 (1) of B.C.’s Human In the Doug Collins case (see last year’s SRights Code bans discriminatory Annual Report) the BCCLA argued before a speech: subsection (a) bans Human Rights Tribunal that subsection (b) expressions which “indicate an violates the Charter protection of freedom intent to discriminate,” and of expression. Although the Tribunal upheld subsection (b) bans expressions the constitutionality of the speech ban, it did likely to expose a person or group to place tight restrictions on its application. hatred or contempt because of their Two further complaints about race, religion, gender, or other “discriminatory speech” occupied the similar factors. BCCLA in 1998:

(a) Citizens Research Institute A conservative organization, the The BCCLA received leave to Citizens Research Institute (CRI), intervene in the case on the interpretation distributed a pamphlet to parents of subsection (a). encouraging them to send their In our view, the Code correctly bans children’s schools a signed “Declar- expressions of an intention to discriminate ation of Family Rights” demanding by someone in a position to that their children not be exposed to discriminate – such as an employer positive images or information about placing an employment ad saying “No gay men or lesbians. The B.C. blacks will be considered” – but it should Human Rights Commission judged not apply to a person expressing a the content of the pamphlet discriminatory attitude who has no insufficiently vilifying to warrant authority to actually discriminate. proceeding under subsection (b), but In this case neither the parents not the referred the complaint to a tribunal CRI can intend to discriminate against under subsection (a). gays and lesbians since neither has any control over the public school curriculum.

(b) The Berscheid Case Before the CRI complaint could be For some time the BCCLA has sought heard, another complaint under both to have the courts address the sections 7 (1) (a) and (b) was referred constitutional issues raised by the Code’s to B.C. Supreme Court. Embroiled in a ban on discriminatory speech, and so bitter disagreement with the Westbank welcomed the opportunity to intervene in Indian Band over water rights, the the Berscheid case. The court hearing respondent erected signs on his lawn began in November, 1998, but was which commented unfavourably (to adjourned before we were able to make say the least!) on the character of our submission. It will resume early in native persons. 1999. The hearing into the Band’s human Editor’s Note: Early in 1999, the rights complaint was adjourned while Westbank Indian Band abandoned its Berscheid challenged the human rights complaint, and so the constitutionality of Sections 7 (1) (a) constitutional issue was ruled moot. The and (b) in the courts. CRI hearing will proceed.

14 The Democratic Commitment 32:4 March 1999 Surrey School Board he BCCLA played an important Just before year’s end, the Court Trole as public interest intervenor in decided in favour of the BCCLA’s a B.C. Supreme Court challenge to a arguments and struck down the Surrey Surrey School Board decision. Three School Board ruling. Since the books books had been banned by the Board were in all other respects acceptable and from use in Kindergarten and Grade 1 age-appropriate, said Madame Justice classrooms because the books contain Mary Saunders, the School Board’s depictions of families with same-sex decision was based on the religious beliefs parents. The petitioners brought of some parents in Surrey and of one forward constitutional arguments to School Trustee, thus violating Section 76. force approval of the books as part of She noted also that the requirement for a more general duty to protect equality public schools to “inculcate the highest rights of gays and lesbians. Our morality” can be viewed in part as a duty intervention concentrated on a more to honour Charter values. narrow argument: that the ban was This important ruling marks the first made on the basis of religious time that a Canadian court has grappled considerations, violating section 76 of explicitly with the separation of church the School Act which requires B.C. and state in the context of the public public schools to be conducted on a school curriculum. purely secular basis. We argued also Editor’s Note: In January, 1999 the that the ruling contravened the Board announced it would appeal the requirement that public body decisions ruling. We plan to intervene again at respect the value of equality set out in the B.C. Court of Appeal. section 15 of the Charter and in the B.C Human Rights Code.

Little Sister’s he BCCLA and our co-plaintiffs the problem lies in the administration of TLittle Sister’s bookstore were very the law, not in the law itself. disappointed when the B.C. Court of On a positive note, the minority Appeal handed down its decision in the opinion was very strong in its conclusion Little Sister’s Case – our 8-year-old that Canada Customs’ systemic constitutional challenge to Canada violations of the Charter are indeed an Customs’ censorship powers. inherent flaw in the law, one that cannot In a 2 to 1 decision, the court be eradicated simply by better training of rejected our appeal, upholding the trial Customs officers or through better judge’s ruling that although Customs’ appeal procedures. We have applied for seizure and prohibition of books leave to appeal the decision to the destined for the gay and lesbian Supreme Court of Canada. bookstore consistently violated the Editor’s Note: In February 1999, expression and equality rights of the Supreme Court of Canada readers, writers, and booksellers alike, announced that it will hear our appeal.

B.C. Civil Liberties Association Annual Report for 1998 15 Recall Challenge onsiderable controversy arose n invites political mischief by organized Cwhen in 1998 the BCCLA launched interest groups. a constitutional challenge to B.C.’s B.C.’s recall law is not just a minor recall legislation. Passed in 1994, the add-on to the current political structures, legislation permits recall campaigns but represents a profound change to our against elected MLAs for virtually any system of representative democracy. reason. For example, one citizen Under constant threat of arbitrary recall, launched a recall campaign against his MLAs may become mere mouthpieces MLA on the grounds that the MLA was for the most vocal elements in their boring and constantly whining, thus consti-tuencies. This weakens the fabric causing his constituents great of responsible and deliberative embarassment. This petition was government. accepted by the Chief Electoral Many proponents of the recall law, Officer. frustrated by the current system of Although on the surface the recall governance in which MLAs vote on party legislation appears to expand the lines and governments can be elected democratic rights of citizens, in our with a minority of the popular vote, view, it has four serious drawbacks. would welcome radical change. The legislation: The BCCLA is open to considering n disadvantages policy solutions alternative forms of political requiring compromise between representation as possible improvements, different constituencies but we insist that if radical changes are n impairs the ability of MLAs to tackle to be made, they must be made legally controversial political issues and responsibly, by changes to B.C.’s n undermines Caucus and Cabinet constitution after extensive and open solidarity public debate and deliberation.

Encryption and State Surveillance ncryption devices “scramble” legitimate government surveillance, even Eelectronic messages so that if where warrants have been issued. intercepted by a third party, they The BCCLA opposes this suggestion. cannot be read. A federal government Criminals and terrorists would be unlikely discussion paper suggested that all to comply, whereas law-abiding citizens users of encryption devices be required and businesses could be subject to to register them with the police. The increased state surveillance. Where argument is that criminals and terrorists necessary, the police could always obtain will use encryption to make their a warrant to seize encryption devices to communications immune from unscramble suspect communications.

16 The Democratic Commitment 32:4 March 1999 Trinity Western University n contrast to our stance in the We intervened at the B.C. Supreme ISurrey School Board case, the Court hearing in 1997 in support of TWU, BCCLA intervened at the B.C. Court of and that Court agreed with our position. In Appeal to argue that Trinity 1998 the B.C. College of Teachers – which Western University could wished to withhold certification of TWU’s legitimately discriminate against teacher education program because of its gays and lesbians. discriminatory Code – appealed to the Court The reason we took (apparently) of Appeal and the BCCLA again intervened. opposite stances in the two cases is In a 2 to 1 decision the appellate court that TWU is a private institution and, upheld the lower court ruling and ordered as such, is at liberty to limit the College to certify TWU’s program. membership to those who share its Both courts were persuaded that since religious views or agree to live up to there was no evidence that TWU graduates its Code of Conduct. It should not are likely to discriminate against gays and be punished by the state for doing lesbians students or fail to protect them, the so. TWU’s Code requires all College has no authority to enforce secular students to refrain from “Biblically values on the private Evangelical Christian condemned” behaviour, including university. extramarital and homosexual sex. The College is considering an appeal.

R. v. Cuerrier n February, 1998 the BCCLA partner about one’s marital status or Iappeared before the Supreme Court professional position or, for that matter, of Canada as an intervener in R. v. age, would be extremely problematic. Cuerrier, an appeal by the Crown of Additionally, it would undermine public the dismissal of aggravated sexual health initiatives by encouraging assault charges against an HIV positive irresponsible individuals to avoid HIV man who knowingly had unprotected testing altogether. sex with a woman. In a split decision, the Court granted His appalling behaviour warrants the Crown’s appeal and sent Cuerrier the highest moral sanctions. But in back for trial. The majority of the Court order to prosecute him for sexual said that where deceit places a sexual assault, the law would have to regard partner at risk of serious bodily harm, the woman’s consent to sex as criminal sanctions are appropriate. We nullified by his failure to disclose his take some comfort in believing that HIV status. Expansion of the law without our submission, the Court might against assault to include non- have taken an even broader approach to disclosure of information in a sexual criminalizing deceitful sexual behaviour. context, such as lying to a potential

B.C. Civil Liberties Association Annual Report for 1998 17 Citizenship Handbook e are very proud of our major W1998 publication, The Citizenship Handbook. This 118- page book introduces new Canadians to their rights and responsibilities as citizens in a democracy. Written by Murray Mollard, edited and designed by Russell Wodell, and illustrated by Jane Wolsak, the Handbook was published in simultaneous English, Chinese, Punjabi, Spanish, and Vietnamese editions. Response has been extremely positive, from multicultural community workers and ESL teachers and from new Canadians themselves. In 1998 we distributed virtually all 10,000 copies through workshops conducted by BCCLA staff, through multicultural agencies, and through word-of-mouth. We are now seeking funding for a second printing, and for translation into further languages. Our web site carries an on-line version of the English edition at: www.bccla.org/publications/ Citizenship/citizens_index.html. We are preparing the Spanish version in electronic form, and seeking hosts for the Chinese, Punjabi, and Vietnamese editions.

Conference on Hatred he University of Victoria Rights Code), the use of public facilities Torganized a conference on how by “hate groups,” and responsibilities of best to prevent or respond to public communities and local governments. expressions of hatred. The BCCLA Although it is unlikely that we were able was invited to present its views on the to persuade many of the conference now infamous Doug Collins case (the participants of the importance of freedom hearing into whether Collins violated of expression in this context, our hate speech restrictions in the Human presentations sparked a lively debate.

18 The Democratic Commitment 32:4 March 1999 Proposed Nisga’a Treaty wo separate issues raised by the which affect them, access to political Tproposed Nisga’a treaty were representation is ultimately controlled by considered by the BCCLA Board: (a) the Nisga’a Council. The ability of non- whether the treaty violates civil Nisga’a to become Nisga’a citizens – and liberties, and (b) whether a referendum so to partake of the full range of rights and is required or appropriate. responsibilities of citizenship – was also tagged as an issue to be monitored. The Treaty On balance, the BCCLA supported the The Board expressed general adoption of the treaty, and will continue to support for the treaty, both as examine any civil liberties issues arising compensation for past wrongs and as from implementation of the treaty. recognition of the legitimate claim of the Nisga’a to their ancestral lands. It strongly supported Nisga’a title to their A Referendum ancestral lands. It also supported the Some political commentators maintain principle of Nisga’a sovereignty over that the treaty would make such a radical their lands, including limiting political change to the political landscape of British representation on major issues to Columbia that it cannot be left up to the Nisga’a citizens. The Board noted that government of the day to decide, and the Nisga’a have ceded significant instead requires a referendum. The Board powers to the provincial and federal could find no civil liberties reasons for governments, including protection of holding a referendum. Should the individual rights under the Charter and government decide to call a referendum, the Criminal Code. Some concern the BCCLA would not oppose this, but was expressed that even though given our system of representational provision is made in the proposed government, the Board concluded that a treaty for non-Nisga’a living on referendum is neither necessary nor Nisga’a lands to have a say in matters desirable. Child Prostitution roubled by the apparent failure of full autonomy and deserve our protection. Tpolice to arrest those buying sex Furthermore, street kids are often engaged from children on the streets, the BCCLA in behaviours — such as quitting school considered whether this social evil and using drugs — which limit their raises a civil liberties issue. The Board capacity to become autonomous moral decided that it does. By reason of agents as they grow older. For these immaturity and inexperience, children reasons, the BCCLA regards both the are less than fully capable of buying of sex from children and the failure appreciating the consequences of their of authorities to act strongly to curb this New Association Positions Association New actions or of engaging in practical activity as attacks on children’s autonomy, reasoning. They thus possess less than and so as attacks on their rights.

B.C. Civil Liberties Association Annual Report for 1998 19 BCCLA Casew ork by Category 1998 1997 1996 Adm inistrative Decision Making 7 4 8 Children's Rights 7 5 5 Discrimination 5 5 2 Due Process: Legal 20 20 19 Freedom of Speech & Association 40 16 17 Patients' Rights 1 2 2 Patients' Rights: Review Panels495853 Police Com plaints 35 28 51 Political Rights893 Casework Prison ers' Rights 8 5 7 Privacy & A ccess to Information 42 34 37 Private Offences 5 5 5 Total Cases 227 191 209

Case Acceptance Policy ur Association receives well over might resolve the matter or deal with an O2,000 telephone calls or e-mail unfair policy. messages each year requesting advice Second, even where a complaint does and/or assistance. Given our scarce raise a clear civil liberties issue, if another, resources, we are able to accept only larger and better funded agency is a small percentage of these as cases. equipped to handle the complaint, we Our acceptance policy is quite normally refer the complainant to that straightforward: agency. First, we assess whether the Third, we look to see whether the complaint involves a clear civil complaint involves a law or policy liberties issue. Traditionally civil affecting many individuals. If not, we liberties issues focus on the usually refer the complaint to another relationship between the citizen and agency, or offer advice. Concentrating our the state, but the BCCLA also assists efforts to address laws or policies allows with certain complaints against private us to maximize the effect of our scarce organizations.When a complaint does resources. Exceptions to this policy are not in our opinion involve a civil police complaints. liberties issue, we usually refer the Finally, where considerable resources complainant to another agency which will be required to address an issue, we could help with the issue, such as the assess the likelihood of success. Where Ombudsman of B.C. or the B.C. prospects are dim and the resources Human Rights Commission. Where no needed considerable, we are sometimes such agency exists, we offer practical forced to reject the complaint. advice about how the complainant

20 The Democratic Commitment 32:4 March 1999 Political Rights Prosecution of Ballot Shredders wo complainants shredded their the outcome of an election, this law should Town ballots during the 1997 federal not be used to penalize shredding one’s election to publicize their view that own ballot, which is a legitimate form of voting in the election undermined political speech. democracy by giving legitimacy to We issued a press release criticizing prevailing power structures. They were Elections Canada for the prosecution. We investigated by Elections Canada and wrote to the Commissioner of Elections charged under paragraph 249(1)(b), Canada, who must approve the charges, which makes it an offence to asking that he rescind his approval. That fraudulently alter a ballot if doing so is request was denied because “the matter is likely to result in the reception of a vote before the courts.” We also wrote to the that should not have been cast or in the Chief Electoral Officer, who has a general non-reception of vote that should have supervisory responsibility over the been cast. Commissioner, who noted our concern. While recognizing that it should be The trial is set for 1999, and we will an offence to try to fraudulently alter monitor its outcome.

Challenge to the Elections Act n advance of the last provincial Pacific Press, together with a citizen Ielection, the government overhauled charged under the Act for defying the the Election Act. restrictions, raised a constitutional Two amendments of particular challenge to these laws. As part of a interest to the BCCLA are restrictions preliminary legal skirmish, the provincial on third party advertising spending government sought to have the case during an election campaign and a thrown out of court because, in its view, requirement to include certain the legal issue had already been decided information in the publication of by the Supreme Court of Canada. election polls. Ostensibly to make The BCCLA intervened in this case at election campaigns more fair, these the B.C. Court of Appeal to argue that changes are major incursions into the the law setting advertising spending limits freedom of expression of individuals during elections is far from settled and a and groups at a time when free speech legal challenge could proceed. When the is arguably most needed – during an Court of Appeal agreed, the government election. They create an almost sought leave to appeal to the Supreme complete oligopoly for partisan political Court of Canada. Assuming the parties to define and direct public government’s appeal fails, a trial is set for debate during an election campaign, to June of 1999. the exclusion of the viewpoints of We plan to intervene. smaller groups and of individuals.

B.C. Civil Liberties Association Annual Report for 1998 21 Freedom of Speech and Association Billing Demonstrators for Police Services fter mounting public demonstra- demonstrators for police services only Ations in 1998, the International discourages political participation at a time Women’s Day Committee and the when society needs to find ways to Canadian Federation of Students overcome citizens’ increasing alienation were billed by the Vancouver Police from the political process. Department for police presence during A coalition of concerned organizations these events. A City of Vancouver and individuals approached the BCCLA for policy requires permits for holding advice and assistance. We wrote to the public events, but it is not clear under Mayor and City Council pointing out that what authority the police can bill for the democratic right to demonstrate on connected services. public property is protected under the Paying for police services would Charter of Rights and Freedoms, and seriously undercut the ability of non- recommending that the City revise its profit groups to stage public policy to distinguish between purely demonstrations of any kind. Public cultural events like the Symphony of Fire, demonstrations sometimes involve which are legitimately billed for police modest costs which, like the electoral protection, and political demonstrations in process, should be borne by the state. the public interest. Though some regulation and notice We will continue to press for such a requirements are appropriate, billing policy in 1999.

Free Speech for Police wo instances of public comments employees’ speech if it would interfere Tby police officers attracted our with the employees’ duties. But Puder’s attention in 1998. statements did not appear to do so. His In the first, Constable Gil Puder, a comments were “insider” information and long-serving officer with the added an important dimension to public Vancouver Police Department, publicly debate about how best to deal with drug criticized the police role in Canada’s use and trafficking. criminal enforcement approach to the With regard to the “rent-a-crowd” problem of drug abuse. His contro- comments, the BCCLA is concerned that versial comments included harsh police appeared to take sides on a political words about the internal police culture question, while denigrating the value of created by the “War on Drugs.” political participation through demon- In the second instance, official strations. Neither message is appropriate. police spokespersons spoke We wrote the Police Board, and later disparagingly about protesters at met with the Chief Constable. We agreed Vancouver City Hall who were to disagree regarding the comments of demonstrating against panhandling Mr. Puder, but we did agree that the bylaws, calling them a “rent-a-crowd.” police should remain impartial in political Like any employer, the police can and private disputes. place reasonable limits on their

22 The Democratic Commitment 32:4 March 1999 Due Process Criminal Record Checks ntended to prevent the physical and subjected to an adjudication. Only 10 of these Isexual abuse of children, the were deemed to pose a risk to children. In Criminal Records Review Act response to concerns raised by these requires every public sector employee statistics about the effectiveness of the Act. or prospective employee who works Lynn Smith, a UBC law professor, was with children, and a host of appointed to conduct a review. The BCCLA professionals (such as physicians and was invited to make a submission. We dentists), to undergo a criminal record recommended to Professor Smith that: check. Certain criminal offences are n The class of “relevant” offences should be defined as “relevant” for assessing the narrowed, since the current class catches too risk which an employee may pose, and many individuals who pose no risk to the Act specifies a process for children. assessing that risk. n Persons who have received a pardon for The BCCLA supports the underlying all relevant criminal offences should not be goal of the Act, but cautions that it subject to a risk assessment. cannot and should not be viewed as a n Changes should be made to the way comprehensive preventive tool. Most employers are notified regarding employee sexual abuse of children is committed checks in order to better safeguard privacy. by persons with no prior criminal n Amendments should be made to the risk record. assessment process to promote fairness and Since the Act came into force, independence of adjudicators. 313,250 persons have been forced to undergo a criminal record check. Of Professor Smith’s report addressed all of these, 227 have been found to have a the recommendations we made, accepting “relevant” criminal record and were some but rejecting others.

Coalition for Access to Justice utbacks in funding to the Legal Stockholder, Past President of the BCCLA, argued: Services Society of B.C. have C In the long term, rendering the poor legally helpless resulted in an alarming reduction in the allows the agencies of government to grow ability of many deserving persons to indifferent about the ways in which they wield their access legal aid. power, and erodes the limits to the ways the rich These cutbacks are politically can in practice deny the rights of the poor. suspect: when the government We pressed the Attorney General on this issue introduced a tax on legal services several in 1998. years ago, it promised to use the tax We also joined the Coalition for Access to revenues to fund legal aid, yet the Justice, a non-partisan group whose goal is to revenue generated by this tax now ensure stable, adequate funding for legal aid. Its exceeds the total government funding for activities include the Journey for Justice, which legal aid. portrays the plight of individuals who need yet are Legal aid must compete with other denied legal aid. important objectives for scarce The BCCLA will continue to work with the government resources. But as Kay Coalition to fight for adequate legal aid funding.

B.C. Civil Liberties Association Annual Report for 1998 23 Private Offences Bylaws Against Panhandling

n 1998 New Westminster, situation of those who panhandle, the IVancouver, and Kelowna created Vancouver Police have sensibly decided bylaws to ban asking for money on not to ticket individuals who offend, but public property within 10 metres of a say they will respond to third party bank, automated teller machine, bus complaints by seeking a court order stop, bus shelter, or liquor store. A barring offenders from any area where similar Winnipeg bylaw is now being they panhandle. This would result in an challenged in the courts. Victoria even greater restriction on liberties, and enforces a bylaw prohibiting asking for open the door to arbitrary enforcement. money while sitting on a sidewalk. Although a minor nuisance, non- Businesses and civic politicians aggressive panhandling does not defend these bylaws as necessary to unreasonably interfere with others’ deal with overly aggressive pan- freedom and should not be illegal. Society handlers. Yet even the police – must address the issues of poverty, defenders of the bylaws generally – addiction, and mental illness rather than acknowledge that we already have trying to sweep the streets of their criminal sanctions against threatening consequences. behaviour, harassment, and “causing a We made submissions to city councils disturbance” which can be used to deal and took our case to the media. Despite with truly aggressive individuals. our efforts and the efforts of many poverty Almost comically, the Vancouver advocates, the offensive bylaws remain on bylaw carries a maximum fine of the books. This issue is likely headed for $2,000 and a minimum fine of $100 for the courts in 1999. each violation. Given the usual financial

New Westminster “Nuisance” Bylaw

hen we heard that the City of before City Council to press our views, but WNew Westminster was to no avail. considering another bylaw to ban It is proper for judges and parole convicted drug dealers from large boards to place reasonable limits on sections of the city, we produced a individuals’ freedoms when released from brief setting out our concerns and met custody, balancing society’s interests with a delegation from the City (the against the right to liberty and the Mayor, planning staff, and the City’s particular circumstances of the individuals. solicitor). But a municipality should not have Although they responded positively authority to automatically ban persons – to our approach by making some of the even convicted drug dealers – from large changes we recommended, they did areas of the city without a hearing. The not rescind the ban. We appeared BCCLA is considering a legal challenge to the bylaw.

24 The Democratic Commitment 32:4 March 1999 Hemp B.C. small store in Vancouver called both its wares and Sister Icee’s views on AHemp B.C. sells pipes and bongs decriminalization of marijuana. In August, and other smoking instruments. Owner Vancouver Mayor Phillip Owen told the Sister Icee is an unabashed supporter New York Times that Hemp BC “will be of the legalization of marijuana. Police toast by September” (referring to the date raided the store twice in 1998 and as a of a license hearing). After strong result of criminal charges against her criticism from the BCCLA and the store’s for selling drug paraphernalia, Sister lawyer, the Mayor agreed to withdraw Icee was refused a business licence by from the licence hearing. the City. Hemp B.C. is apparently being Many other stores quietly but targeted by the City and the police solely openly sell the same wares without because of its success in promoting its pressure from the police or the City; it business and its views (which, insofar as is clear that Hemp BC is being brought they concern decriminalization of “soft under special scrutiny. Police Chief drugs,” the BCCLA shares).This makes it a Bruce Chambers admitted as much on free speech issue. a radio news broadcast, saying Hemp We organized a press conference with BC was raided because it was the store to publicize our concern, and we “flaunting it.” The Chief was referring continue to monitor the situation. to the store’s success locally, nation- ally, and internationally in promoting

Cominco’s No Smoking Policy rganizations, institutions, and would be virtually impossible to smoke Oemployers are increasingly less during breaks on such a large property), tolerant of those who smoke. While it and paternalistic (according to Cominco, is clearly legitimate to protect others “power smoking” is unhealthy, therefore from unwanted second-hand smoke, the company shouldn’t allow employees to employers can go too far, punishing do it). people simply for being smokers. We argued that a ban on possession In the company town of Trail, B.C., reaches too far into employees’ private Cominco Ltd. banned the use and lives, raising the spectre of searches and possession of tobacco products on informants. company property. It would be After two months of silence we issued impractical to create designated a press release. Cominco finally smoking areas, the company claimed, responded, dismissing our concerns dangerous to allow smoking at all, and outright. The policy continues in force and mere possession of tobacco could pose has, apparently, caused some smokers a health risk to employees who smoke. considerable distress. We have learned Upon receiving complaints, the that the union local has filed a grievance BCCLA wrote to Cominco pointing out to be arbitrated in 1999, and we will that their policy was both punitive (it report on the results.

B.C. Civil Liberties Association Annual Report for 1998 25 Regulation of Private Security he number of private security security personnel – exacerbates the Tpersonnel has mushroomed in problem. British Columbia over the last twenty Citizens are free to protect their years. Businesses and private property within the limits of the law, and individuals concerned about property we don’t oppose citizens hiring private crimes have turned to private security security personnel to do the job. Given guards to do what police are unable to the potential for abuse of authority, on the do: keep a watchful eye over their other hand, adequate training, property. accountability, and oversight mechanisms Private security personnel have should be in place. Citizens also need to strictly limited legal authority to arrest, be better educated about the limits on the detain, search, and question people. powers of private security. These Most citizens remain unaware of the recommendations echo those of the 1994 limits on security guards’ powers, Oppal Commission inquiry into policing. often confusing them with police In 1998, the BCCLA provided officers. Combined with the huge assistance and advice to groups increase in private security, this concerned about the activities of private increases the likelihood that innocent security personnel in their neighbour- citizens’ rights and freedoms will be hoods. We also met with the Attorney violated. Municipalities’ recent General and Ministry officials, urging reliance on nuisance and panhandling them to follow up on the Oppal bylaws – often enforced by private Commission’s recommendations.

Censorship BC Transit Periodical Policy C Transit removed a periodical considering the content of legally Bfrom distribution in boxes on its permissible material when deciding property, on the grounds that its content whether or not to allow distribution. We might offend some transit users. The applaud BC Transit’s recognition of the free publication, a Christian monthly civil liberties principle involved, but newspaper, contained an article remain sceptical that this policy will in opposing abortion. We criticised this fact prohibit censorship. decision both in the media and in a letter Judging that pressing for further to BC Transit, arguing that no state change to the policy would be fruitless, agency should play a censorship role. we decided instead to monitor Transit’s BC Transit agreed, and created a policy actions in this regard over the coming to prohibit Transit officials from year.

26 The Democratic Commitment 32:4 March 1999 Privacy B.C. Benefits Consent Form o single issue in recent memory Worse, the form fails to distinguish between Ngenerated more calls to the BCCLA information needed to establish eligibility office than the welfare consent form and investigations regarding alleged fraud. introduced by the provincial government Statistics show that welfare fraud is a in 1998. To assess eligibility for welfare relatively minor problem and cast doubt on benefits and to deter welfare fraud, the the justification for the breadth of the Ministry of Human Resources now consent demanded. In our view, the requires recipients and applicants to sign government bears the onus of proving why a comprehensive consent form to collect it needs such sweeping authority to invade personal information. The Ministry can privacy. then obtain and verify any “relevant” After we and others protested this information regarding eligibility from regime to the relevant Ministers and in the sources which include: Revenue Canada, media, the government revised the consent any federal or provincial public agency, any form to make it marginally more sensitive to financial institution or credit service, the privacy interests of applicants. A legal landlords, employers, and family members. challenge to the form brought by a welfare “Relevant information” is not defined. recipient was unsuccessful. An appeal to This form thus provides a blanket the B.C. Court of Appeal by lawyers from authorization to the government to delve the Community Legal Assistance Society into the private lives of benefits applicants. will be heard in 1999.

Watching the Nanny ideo surveillance as a solution to they might better simply retain other help. Vperceived problems of crime and That said, the BCCLA Executive misconduct is a growing trend throughout Committee did not categorically rule out Canada. Public and private institutions use of video surveillance in the home, but increasingly turn to new technologies for judged that at a minimum the following monitoring citizens’ activities. restrictions should apply for spying on An example was brought to us by the domestic workers: West Coast Domestic Workers (1) Notification must be given before any Association, an organization that strives to surveillance is used. improve the working conditions of nannies: (2) Surveillance should not be used where Should parents have the right to monitor the employee has a reasonable the behaviour of nannies through home expectation of privacy (e.g. private video cameras? bedroom, personal bathroom, etc.). Video surveillance has a profound (3) Surveillance should be used only if impact on the privacy interests of there are reasonable grounds for believing nannies (as, indeed, on those of most that employee misconduct will occur. employees subjected to it, whatever the (4) Surveillance should not be used for workplace). In addition, it undermines the assessing productivity generally. trust necessary for a successful nanny- The BCCLA will examine these issues parent-child relationship. If parents have further in a full Board discussion on video sufficient concern that they are surveillance in 1999. considering surveillance as an option,

B.C. Civil Liberties Association Annual Report for 1998 27 Access to Information Submission on the FOI Act eralded as one of best examples woeful disinterest in their task. Combined Hof information and privacy with recent painful funding cuts for the legislation in Canada, B.C.’s Freedom operation of the Act, this leaves us worried of Information and Protection of that the government is prepared to weaken Privacy Act provides citizens with a citizens’ information and privacy rights. right of access to government-held Our submission urged the committee to information and a right of privacy with preserve, and expand on, the strengths of respect to personal information the legislation. We made recommendations controlled by government. The BCCLA on many issues, including the mandate and played a significant role in the authority of the Information and Privacy development of the Act in the early Commissioner, records management, 1990s. funding for administration of the Act, In 1998 a special all-party justification for collecting personal committee of the Legislature information, exemption to disclosure for undertook a mandatory review of the legal advice, problematic requests, and legislation. Regrettably, members of fees for access. the Committee – especially govern- We anticipate the Committee’s report in ment members – have exhibited 1999.

Freedom of Religion Bible Distribution in Public Schools n Abbotsford parent complained Separation of church and state is an Aabout the local School Board’s essential democratic principle. Section 76 Gideon Bible distribution policy, which of the School Act says that public schools permits school principals to arrange for must not promote religious dogma or the distribution of “bible consent creed. In our view, the Abbotsford policy cards” to Grade 5 students. When clearly violates that principle, giving official signed by a student’s parents, the card sanction to the distribution of Christian allows the student to be excused from resources. We recommended to the School classes to meet with a member of the Board an alternative policy that respects Gideon Bible Society, who will then this principle yet permits distribution of give the student a bible. According to religious materials after school hours. our complainant, a Gideon member, We received a short, polite, but accompanied by the school principal, noncommital letter from the school board met with the students to explain the thanking us for our interest and comments. distribution program before handing We will pursue this issue in 1999. out the consent cards.

28 The Democratic Commitment 32:4 March 1999 Patients’ Rights Changes to the Mental Health Act or the past three decades the because they choose not to take their FBCCLA has expressed concern medication. Yet detaining such persons over involuntary committal of against their will – and forcing unwanted individuals under the Mental Health treatment on them – is a heavy instrument Act. As a public service, we provide a which should be reserved only for the list of persons willing to serve as most drastic of circumstances. We think patient appointees on review panels, the old law struck the right balance. We which assess whether individuals met with Ministry officials to express our should continue to be detained opposition to the proposed amendments, involuntarily. and our concern about the lack of Until 1998 the Act permitted independent advice for patients about their detention of mentally ill persons for rights. Despite our efforts, the treatment against their will only when amendments passed. detention was deemed necessary for The revised Act does not distinguish their own protection or for the between those who are and are not protection of others. The BCCLA competent to make their own treatment supports this criterion. Last year, decisions. Competency plays no role in however, the provincial government detention decisions, and the state has the introduced amendments expanding the right to impose treatment whether or not criteria for involuntary committal, detained persons are legally competent to which would henceforth be allowed refuse treatment. The BCCLA Board whenever a doctor stipulated it is considered this issue in December, necessary to prevent a patient’s entertaining representations from the substantial mental or physical Schizophrenics Society, the Canadian deterioration. The amendments allow Mental Health Association, and the continued involuntary committal if, in Community Legal Assistance Society (an the opinion of a doctor, there is a organization which provides legal significant risk that a patient would fail representation to patients). In 1999 the to follow a treatment plan upon Board will consider a motion to withdraw release. our opposition to the expanded criteria It is natural to sympathize with where the patient is not competent to family or friends of mentally ill persons make treatment decisions. whose quality of life is deteriorating

B.C. Civil Liberties Association Annual Report for 1998 29 he major role of the BCCLA Board Executive Committee Tof Directors is to debate and set the Association’s policies on In addition to serving on the Board, nine substantive issues. Although the Board dedicated individuals sit on the Executive is responsible for approving the budget Committee, which meets monthly but is and extraordinary expenses, also active on a daily basis in directing the supervision of the day-to-day work of staff, interpreting Board policy as operations is left to the Executive it applies to the many cases we handle Committee, the Finance Committee, each year, and allocating our scarce and the Executive Director. resources. Executive Committee members At its regular monthly meetings the also write letters and submissions, meet Board considers various civil liberties with government officials, and represent issues to establish policy. Sometimes it the BCCLA in the media. reviews proposed position papers, The major change to the Executive canvassing arguments pro and con and Committee in 1998 was the resignation as recommending a stance. At other times President of Kay Stockholder for health it looks at preliminary discussion reasons (see page 10). papers, and at citizen complaints At the May Board meeting, Andrew referred to the Board by the Executive Irvine was elected as our new President. Committee. In setting policy, the Board An Associate Professor of Philosophy at determines the intellectual direction of UBC, Andrew has been an active BCCLA the Association. Board member for three years. He brings Some Board members are regular a wealth of knowledge and experience to attendees at Board meetings, and his new post. Aside from many academic participants in ongoing debates on civil publications, Andrew has co-authored with liberties matters. Others make fellow Executive member John Russell themselves available for advice in a series of articles on public policy issues areas of expertise, take on special for The Vancouver Sun. He has written projects, or represent the BCCLA and/ separately on such topics as censorship, or its clients before administrative voting rights, academic freedom, and employment equity. Andrew lives in Board of Directors of Board tribunals and the courts. We welcomed one new member to Richmond with his wife Joan and two the Board in 1998: children Katherine and David. n In other Executive Committee changes: Bob Lane, a philosophy instructor n at Malaspina College. Conrad Hadland stepped down as Two Board members stepped down Vice-President after serving in that during 1998: position for three years with grace and skill. We are grateful that Conrad agreed n Past President Andrew Wilkinson to remain on the Executive Committee, resigned to stand for election as and continue to benefit from his President of the Liberal party of B.C., experience and commitment. and n Craig Jones, a young civil liberties n Charlie Singer (who moved to advocate who has just completed his Law Ottawa). degree at UBC, was elected as our new We are very grateful for the large Vice-President. contributions these two Board members made over the years.

30 The Democratic Commitment 32:4 March 1999 On December 31, 1998, the BCCLA Board of Directors consisted of: Executive Committee Phil Bryden Andrew Irvine, President Greg Delbigio Craig Jones, Vice President Avigail Eisenberg John Dixon, Secretary Hamar Foster John Cox, Treasurer Tom Gore Sam Black Gordon Ingalls Steven Davis Ross Lambertson Harbans Dhillon Bob Lane Conrad Hadland John J. McIntyre John Russell Alan Rowan Martin Schechter Members at Large Bob Seeman (on leave) Dale Beyerstein Patrick Smith Walter Block David Sutherland Warren Bourgeois Tanya West Alister Browne James M. Williams

B.C. Civil Liberties Association Annual Report for 1998 31 Legal Counsel n recent years the BCCLA has n The B.C. Public Interest Advocacy Ibecome increasingly active in the Centre represented the Association as a courts. Several factors played a role in complainant before the RCMP Public this change: maturation of the Charter Complaints Commission in the APEC as an instrument for protecting rights inquiry. The lawyers involved were: Dick and freedoms, development of our Gathercole, Michael Doherty, Pat capability as an organization to conduct McDonald, and Jim Quail. litigation, growth in the number of n Art Grant of Grant Kovacs Norell citizens who call on the BCCLA to represented the Association as an assist them via court actions, and intervenor before the B.C. Court of increasing numbers of lawyers willing Appeal in a challenge to the third party to donate their time and expertise to advertising restrictions in the B.C. our work. Elections Act. Far and away the most important of n Russell MacKay of Vertlieb Anderson these factors is the generosity of gave general assistance. lawyers who work for us pro bono. n Michael O’Keefe of Thorsteinssons Volunteers This is a terrific asset for the BCCLA, in advised the Association regarding our attempting to persuade governments to charitable status and other Revenue protect civil liberties, in placing civil Canada matters. liberties issues on the public agenda, n Richard Peck, Q.C. of Peck & and in seeking court-ordered changes Tammen and John McAlpine, Q.C. of to offensive laws and policies. McAlpine Gudmundseth Mickelson Some of this work is carried out by advised the Association regarding a lawyers on our Board who offer their challenge to the New Westminster services pro bono as part of their nuisance bylaw. Board responsibilities. In 1998, the n Chris Sanderson and Chris Gora of following non-Board lawyers also Lawson Lundell Lawson and McIntosh made important contributions on a pro represented the BCCLA before the B.C. bono basis to the BCCLA: Supreme Court as intervenors in James n Chilwin Cheng of Davis & Co. Chamberlain et al. v. School Board #36 provided assistance on several civil (Surrey). liberties matters. n Tim Delaney of Lindsay Kenney represented the BCCLA before the B.C. Court of Appeal as intervenor in Trinity Western University et. al. v. British Columbia College of Teachers. n John Dives of Bull Housser & Tupper represented the BCCLA before the Supreme Court of Canada in R. v. Cuerrier. n Ron Eichler of the Department of Volunteer counsel Justice gave general assistance. Chris Sanderson

32 The Democratic Commitment 32:4 March 1999 Audit arrying on a tradition established information, examining various financial, Cover a dozen previous years, administrative and substantive practices, John S. Wilson Jr. again gave producing audited financial statements, generously of his time and expertise to and submitting a report to the Executive conduct the 1998 audit of the BCCLA’s Director. John Wilson’s contribution is books. Some readers may not comparable to that of the most active appreciate the enormous amount of members of our Board. We are deeply labour this entails: collecting necessary grateful to him for this contribution.

Other Legal Advice and Assistance everal lawyers and students research for some of the BCCLA’s legal Sdemonstrated their support for the cases. BCCLA in 1998 by generously We are grateful also to Kensi donating their time and talents. We are Gounden, Alison Sawyer, and Leslie grateful to Alayne Fleishman, Csaba Stalker, who acted as patient designates Nikolenyi, and Jonathon Yuen for from the BCCLA on mental health review their able assistance in conducting panels. Casino roceeds from our casino events Conrad Hadland Phave provided an important source Craig Jones of revenue for the BCCLA. Each event Dino Rossi requires a number of volunteers willing Alan Rowan to be trained, and to brave the smoky Linda Shpikula room and late nights. We salute the John Westwood following casino volunteers for 1998: Russell Wodell Dale Beyerstein Lil Woywitka Office Volunteers e rely heavily upon volunteers membership records and issue income tax Wto carry out various office receipts. tasks, both on an ongoing basis and In 1998, Steven Park was a great for special projects. help in organizing the mailing of our Once again this year we extend Citizenship Handbook, and Dino Rossi our thanks to Helen Daniels, who donated many hours to organizing and over more than two decades has distributing a fund raising appeal to visited the office regularly to process university and college teachers.

Office volunteers Helen Daniels and Steven Park

B.C. Civil Liberties Association Annual Report for 1998 33 Staff

s our substantive caseload Russell Wodell (part time) Aincreases each year, and as Publications and Web Site more and more fund raising Co-ordinator duties are carried out in-house, our talented and dedicated staff In addition to our regular staff, are called on to shoulder a several people worked on a contract heavier and heavier burden. The basis in various capacities. In 1998 fact that they are able to get the these were: job done at all is no small miracle. That they do it with Lynda Hird, Community Outreach typical patience, good humour, Worker and a spirit of co-operation Eli Basas, Computer Consultant makes the Board’s job that much easier. There is no Anthony Santiago, mailing of The question but that our staff are a Citizenship Handbook Lynda Hird huge asset of the Association. Stephen Young, a law student who In 1998, BCCLA staff worked in the office for the summer members were: handling intake and doing casework.

John Westwood, Executive Director Murray Mollard, Policy Director and Caseworker Linda Shpikula, Office Manager Lil Woywitka, (part time) Membership Secretary Stephen Young Anthony Santiago

Above, Russell Wodell

Left, John Westwood, Helen Daniels, Murray Mollard, Lil Woywitka, and Linda Shpikula

34 The Democratic Commitment 32:4 March 1999 1998 1997 1996 Special 172 206 210 Individual 255 333 323 Fam ily (2+ persons) 154 220 174 Organizational 9 11 16 Membersh ips 590 770 723 Donors only 514 483 571 Total Supporters 1,104 1,253 1,294

ur members and donors are the communicating with officials in the public Obackbone of the Association. and private sector. Over the years their financial “Members” are those individuals who contributions have provided a allocate a small portion of their donation as substantial portion of the BCCLA’s a membership fee. Memberships are now operating budget. Moreover, such a fully tax-creditable. Both members and wide base of support from citizens of donors receive quarterly issues of The B.C. is extremely valuable when Democratic Commitment. We are very approaching institutional funders, and grateful for their support. gives us added credibility when Memorials and Bequests n 1986 the BCCLA established Bequests Ian Endowment Fund to Bequest: Francis Earl Bertram provide for the long term Bequest: Roderick Lionel viability of the Association, to Bequest: Winona Grace MacInnis smooth out bumps in our year- Bequest: David Bruce Morgan Membership Report Membership to-year operational funding, and Accelerated Bequest: Dr. Cecil K. to allow us to take on special Stedman projects otherwise not Bequest: Dr. Cecil K. Stedman affordable. Gifts to the Endowment In Memoriam Fund are placed in the Capital In memory of John B. (Jack) Bryan Account, and held in perpetuity. In memory of Robert E. Jefferson Only the interest is available for In memory of Merril Lathan the Board of Directors to assign In memory of David Bruce Morgan to fund special projects or offset unexpected drops in revenue. In memory of R.E. Morgan (Founding Member) Two of the most important In memory of Roger Robson sources of donations to the In memory of R.A.H. (Reg) Robson Endowment Fund are bequests and “In Memoriam” gifts. We (Founding Member) acknowledge with gratitude the In memory of Karl Siegfried following: In memory of Kay Aronstam Stockholder

B.C. Civil Liberties Association Annual Report for 1998 35 ith caution” is the phrase that best to draw on the legal community for lawyers “ describes the BCCLA’s approach to willing to represent the BCCLA and its clients Wfinancial matters in 1998. before the courts. The donation of these In January we anticipated that we would lawyers’ time and talents is a major have to raise $113,000 in donations in order to contribution to our work. However, it is not break even by the end of the year. Since it without costs: the disbursements for these was not at all clear that we could raise this cases and the staff time involved in case amount of money, we delayed certain management are a drain on the scarce budgeted-for expenditures until we could be resources of a small organization such as sure we could afford them. In retrospect, this ours. The VBA’s donation makes a big turned out to be a prudent decision. Even difference. though our revenues from casino nights were As I look ahead to 1999 and beyond (as above expectations, we fell $24,000 short of Treasurers are wont to do), I can see a the target for donations and memberships. By continuing need to expand our sources of keeping expenses at a minimum and by financial support and to carefully conserve utilizing special project grants, we were able our resources. to keep our 1998 deficit at a manageable The government’s takeover of casinos level. and creation of a fund for gaming proceeds Our two main sources of revenue are our from which grants will be made leaves in long term supporters and the Law Foundation of question our income from this source in 1999 B.C. I want to take this opportunity to express and in succeeding years. the appreciation of the entire Board and staff for The slow erosion of our supporters list this support. needs to be addressed. Attrition is to be Despite record low interest rates, the Law expected — people move from the province, Foundation was able to maintain its support for find themselves in difficult financial situations, funded groups at 1997 levels. The commitment or die. We will have to work harder to locate of the Law Foundation to funding the work of those individuals who are natural BCCLA the BCCLA is of immense importance to us, not supporters, if only they were given only in balancing the books each year, but in information about our work and asked for having confidence that we will be able to support. Treasurer’s Report Treasurer’s operate at somewhere near current levels for We will have to negotiate a new lease for the foreseeable future. This allows us to take on our office in 1999, and whether we stay at longer-term projects, to make commitments to the present location or move, we will face our hard-working staff, and to concentrate on increased rent expenses. the job that our supporters want us to be doing. Revenue Canada announced just before Our supporters play the other key role in our year’s end that they will be conducting an financial stability. We are truly fortunate to have audit of the Association in 1999. It may be attracted to the Association supporters who not that we will have to look at restructuring our only believe that protecting and enhancing civil operations in order to comply with recent liberties is important, they are willing to do their judicial interpretations of the Income Tax part to ensure that we have the resources to do Act. our job. I take my hat off both to our valued and All in all, I am confident that with the help dedicated long-term supporters, and to those of my fellow Board members, our dedicated new supporters who joined us in 1998. staff, and committed supporters, we will I also give special thanks to the Vancouver weather any storm. Bar Association, which again in 1998 made a substantial donation of $5000 to support the BCCLA’s administrative and research expenses for our legal cases. Over the past two years, we have been extremely fortunate to have been able John Cox, Treasurer

36 The Democratic Commitment 32:4 March 1999 To the members of the British Columbia Civil Liberties Association:

I have audited the statement of financial In common with many not-for-profit position of the British Columbia Civil charitable organizations, the British Liberties Association as at December Columbia Civil Liberties Association 31, 1998, the statement of operations and derives revenue from memberships, changes in fund balances, and the donations and grants, the completeness of statement of cash flows for the year which is not susceptible of satisfactory then ended. These financial statements audit verification. Accordingly, my are the responsibility of the verification of these revenues was limited organization’s management. My to the amounts recorded adjustments might responsibility is to express an opinion on be necessary to memberships, donations, these statements based on my audit. grants, excess of revenue over expenses, assets and net assets. Except as explained in the following paragraph, I conducted my audit in In my opinion, except for the effect of accordance with generally accepted adjustments, if any, which I might have auditing standards. These standards determined to be necessary had I been require that I plan and perform and audit able to satisfy myself concerning the to obtain reasonable assurance whether completeness of the memberships, the financial statements are free of donations and grants referred to in the

Auditor’s Report Auditor’s material misstatement. An audit includes preceding paragraph, these financial examining, on a test basis, evidence statements present fairly, in all material supporting the amounts and disclosures respects, the financial position of the in the financial statements. An audit also organization as at December 31, 1998, and includes assessing the accounting the results of its operations, the changes in principles used and significant estimates its fund balances, and its cash flows for made by management, as well as the year then ended in accordance with evaluating the overall financial statement generally accepted accounting principles presentation. applicable to not-for-profit organizations.

John S. Wilson, Public Accountant February 11, 1999

B.C. Civil Liberties Association Annual Report for 1998 37 38 The Democratic Commitment 32:4 March 1999 B.C. Civil Liberties Association Annual Report for 1998 39 40 The Democratic Commitment 32:4 March 1999 B.C. Civil Liberties Association Annual Report for 1998 41 42 The Democratic Commitment 32:4 March 1999 B.C. Civil Liberties Association Annual Report for 1998 43 B.C. Civil Liberties Association 425 – 815 West Hastings Street Vancouver, B.C. V6C 1B4 (604) 687-2919 fax: (604) 687-3045 e-mail: [email protected] web site: www.bccla.org