Killing of Gong for their Organs: The Alberta Connection undefended group of people, even by by Chinese standards. This population is an international human provided a ready source for harvested rights lawyer based in , David Matas organs. , Canada. These are revised • maintains what the Government remarks condensed from a presentation of China euphemistically calls at the Central Library, , 18 January reeducation through labour camps. 2013 and the Education Centre, University GUEST Those who refused to recant of Alberta, , 19 January 2013. disappeared into the camps. Opinion These camps are both arbitrary I want to talk about the killing of Falun detention slave labour camps and vast Gong for their organs from an Alberta live organ donor banks. The perspective. Falun Gong is a blending if the hospitals had organs of Falun Research Foundation estimated in 2008 and updating of ancient Chinese spiritual Gong for sale on the basis that, since that the number in the camps then and exercise traditions. It began in 1992 Falun Gong through their exercises are currently detained was between 500,000 with the teachings of Li Hong Zhi and healthy, the organs would be healthy. and two million souls. The United States quickly spread throughout China with We obtained on tape, transcribed and Department of State’s Country Reports the encouragement of the Government translated admissions throughout China. for China report that foreign observers officials who considered the exercises as • Falun Gong practitioners who were estimate that Falun Gong adherents beneficial to health and to the finances of detained and after torture recanted constitute at least half of the inmates in the health system. and who then got out of detention and the country’s reeducation through labour By 1999, Falun Gong practitioners out of China told us that they were camps. were, according to a Government survey systematically blood tested and organ • China has two parallel power more numerous than the membership of examined while in detention. Other structures, a Communist Party structure the Communist Party. At this point, out detainees were not. The blood testing and a state structure. The Party structure of fear of losing its ideological supremacy and organ examination could not have governs the state structure. Every state and jealousy at its popularity, the Party been for the health of the Falun Gong position up and down the system, in the banned Falun Gong. The Party began a since they had been tortured; but it centre and the regions, has a parallel prolonged, persistent, vitriolic national would have been necessary for organ Party position. It is the Party organ that and international campaign of incitement transplants. instructs the parallel state organ. to hatred against Falun Gong prompting • Falun Gong practitioners who came The Party established an office for the their marginalization, depersonalization from all over the country to Tiananmen repression of Falun Gong called the 610 and dehumanization in the eyes of many Square in to appeal or protest office, named after the date of its Chinese nationals. were systematically arrested. Those who - continued on page 4 Those who did the exercises after 1999 revealed their identities to their captors were arrested and asked to denounce the would be shipped back to their home Inside.... practice. Those who did not were tortured. localities. Their immediate environment Guest Opinion Continued...... pages 4,5,6 Those who refused to recant after would be implicated in their Falun Gong Staff, Volunteers, and Events...... page 2 FIPPA, First Nations Sovereignty, torture disappeared. David Kilgour and I activities and penalized. Environmental Issues...... pages 3, 8 concluded that many of the disappeared Employer's Guide: Trans-Identified persons were killed for their organs. While it would To avoid harm to people in their in the workplace...... page 7 take me too far afield to go through all the locality, many detained Falun Gong Human Smuggling Leg. evidence that led us to that conclusion, I declined to identify themselves. The Unconstitutional....pages 9, 10, 11, 6 will mention a few bits. result was a large Falun Gong prison SCC Changes Disability Direction ..p. 12, 13, 14 ACLRC Re-Brands...... page 14 population whose identities the Publications List ...... page 15 • Investigators made calls to hospitals authorities did not know. As well, no Civil Liberties Award ...... page 16 throughout China, claiming to be relatives one who knew them knew where they of patients needing transplants, asking were. This population is a remarkably Centrepiece 19:1 2013 page 2 Staff and Volunteers We have been busy these past few months. Damilola Olawuyi finished articling at ACLRC. Articling student Dorab Colah is cur- rently working with us. Pamela Dos Ramos and Brenda Johnston continue to work on the Anti-Racism Education Project. We are fortunate have been working with excellent volunteers over the last few months—including Rabia Shuaib and Samantha Cas- selman and others. Thanks also to the Pro Bono Law Students who assist us with various projects over the past university year. Thanks! - Linda McKay-Panos

Upcoming Events Centrepiece c/o February 26th, 2013 Alberta Civil Liberties Research Centre University of Calgary Noon to 1:30 pm 2500 University Drive NW Room 2370 Murray Fraser Hall Room 2350 Murray Fraser Hall Calgary, Alberta T2N 1N4 Bill C-45: Changes to the Indian Act p: 403.220.2505 and Other Environmental Laws ­— Effects on First Nations Peoples Publisher and Editor: Linda McKay-Panos Featuring: Robert Janes Regular contributors: Janes Freedman Kyle Law Corporation Linda McKay-Panos Robert Janes practices civil litigation in the Victoria Melissa Luhtanen Brian Seaman and Vancouver offices, focusing on constitutional, Stephanie Jacobson aboriginal and commercial litigation.

Free: Light Lunch will be provided Centrepiece is the newsletter of the Alberta Civil Liberties Research Centre. The views expressed in Centrepiece are More information? 403 220.2505 the opinions of the author, and not nec- essarily the views of the Research Centre, its Board, staff, volunteers or funders. The Alberta Civil Liberties Research Centre holds copyright to all material ap- pearing in Centrepiece unless otherwise indicated. Reproduction of Centrepiece THE RULE OF LAW IN AN AGE OF TERROR articles to which the Centre holds copy- right is permitted, so long as the author Keynote Speaker: and the source are acknowledged. Please DENNIS EDNEY contact the Research Centre if you wish Former Lawyer for Omar Khadr to obtain permission to reproduce any other material. Subscription rates are $10.00 for one WHEN: Thursday, February 28, 6:30 - 8:30 PM year. (Complimentary subscriptions for WHERE: Murray Fraser Hall, Room 3360, donors and volunteers.) Please enclose University of Calgary, Faculty of Law payment with your order. You may also access our newsletters on our webiste at FREE EVENT; Dessert reception to follow. aclrc.com.

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Centrepiece 19:1 2013 page 3 The Canada-China Foreign Investment Promotion and Protection Agreement (FIPPA): Tipping Point for Canadian Sovereignty, First Nations Rights/ Sovereignty and Environmental Protection by Brian Seaman were exempted out from environmental Although the Omnibus Bill, Bill C-45, citizens. Finally, for anyone who wants protection for the benefit of industrial must be read in context with the FIPPA “talking points,” I have bulleted these development, mining, a pipeline or pact, I have restricted my comments and put them in a bold font. oil extraction would continue to apply here to the various parts of FIPPA that to Chinese companies operating in I see as particularly problematic. I will Summary of Main Obligations Canada. be re-reading the relevant parts of Bill The first part of the pact that under- C-45 again in the coming weeks as part mines Canadian sovereignty is found *It seems that for the Canadian of an article I want to put together in the section headed Withdrawal or Government, Canadian sovereignty for the Idle No More movement as a Denunciation, which in effect locks us is less important than a business resource. The various acts under the in for 31 years. and investment agreement with Omnibus Bill that address First Nations It says the agreement remains in China. The federal government lands certainly constitute an attack on effect for 15 years. Then it says that does not appear to have any regard existing Aboriginal rights under the pre- either party can withdraw upon giv- for Aboriginal rights or environ- Confederation Treaties, among other ing one year’s notice in writing of an mental protection. sources of law. The rights under these intention to quit. However, this provi- Treaties remained law after Confedera- sion is a red herring because it goes on Sub-section (22)The word “territory” is tion, notwithstanding the various at- to say that for any investments made defined in terms of what constitute the tempts by successive Canadian govern- before the date that the termination of national territories over which Canada ments to destroy Aboriginal rights and the agreement becomes effective, the and China respectively exercise sov- culture, whether we are talking about provisions of the agreement will remain ereignty. For both countries, territory banning the Ghost Dance, the Residen- in force for another 15 years. is defined to include land territory, air tial Schools system, the Indian Act and space, internal waters and territorial now, Bill C-45, which represents a viola- *If the agreement is ratified and sea. Then things get rather interesting. tion of section 35 of the Constitution the China National Offshore Oil For Canada, reference is made to us Act of 1982. Section 35 recognizes and Company (CNOOC) invests money having an exclusive economic zone and affirms the existing and Treaty rights of in the construction of a pipeline, having sovereignty over our continental Canada’s Aboriginal peoples, who are unless it gets its pipeline or pipe- shelf in accordance with the United Na- defined to include Indians (I prefer the lines to the west coast, Canadian tions Convention on the Law of the Sea term First Nations but this is the word taxpayers could be on the hook for (UNCLOS), which has been incorporated used in section 35), the Métis and the whatever financial losses or other into Canadian domestic law. However, Inuit. unforeseen costs CNOOC or any there is no mention of UNCLOS in the The comments that follow are other Chinese companies doing definition of Chinese territory, which re- restricted to the subject areas where business in Canada incur. This is fers to China exercising sovereign rights I have relevant knowledge: i) consti- why, among other reasons, it is or jurisdiction over territorial air space tutional law, ii) environmental law, critical to oppose ratification. and “any maritime areas beyond the and iii) the Canadian Charter of Rights territorial sea over which, in accordance and Freedoms. The provisions in FIPPA Article 1 Definitions with international law and its domestic regarding the arbitration of investment Sub-section (6) “Measure” is defined to law, China exercises sovereign rights or disputes, which indeed comprise a large include a law or regulation. jurisdiction….” part of the agreement, should be left Sub-section (7)“Existing measure” is *China currently has maritime ter- to a corporate lawyer who specializes defined to mean “a measure existing ritorial disputes with many of its in such matters as they are outside my at the time this Agreement enters into Asian neighbours including most field of knowledge and thus compe- force.” notably Japan and its naval vessels tence. From this point on, I will refer What this means is that if the pact is routinely venture into the disputed to FIPPA as “the pact” or “the agree- ratified, even if a future federal gov- territorial waters of other Asian ment” and I will refer to the Canadian ernment were to change parts of Bill countries deliberately running Charter of Rights and Freedoms as “the C-45 or repeal it, such an act would not over fishing lines and otherwise Charter.” I will stress that though the affect this agreement with China. To put threatening fishing vessels, ram- pact equally binds China, when I refer it in other words, all those parts of Bill ming them or firing shots over their to “us” throughout my critique, I am C-45 that pertain to Aboriginal lands, bows. of course referring to Canada and its inland rivers, watersheds, and lakes that - continued on page 8 Centrepiece 19:1 2013 page 4

research showing that there are other massive population of unidentified Falun transplant victim prisoners of conscience Gong prisoners in detention, people - Uighurs, Tibetans and Eastern Lightning who refuse to disclose their identities - continued from page 1 House Christians. to anyone to protect their home establishment, the 10th day of the sixth The Government of China accepts environment. month, June, of 1999. The is a that sourcing of organs for transplants The people who lived through these Party office only, not a state office. The from prisoners is ethically wrong. The experiences, who can tell you these tales 610 office is the instrument of the Party Government in March 2012 committed of horror, are not strangers in a far away instructing the police, the prisons, the to ending the reliance on prisoners for land. They are our neighbours. labour camps, the prosecution and the organs in five years. The Government B. The Calgary Consulate Incitement courts on the repression of Falun Gong. further indicated that this phasing out A second connection of the killing Because persecution of the Falun Gong is would start in this year, 2013. of Falun Gong for their organs and Party directed, deflecting it, avoiding it, A Government official, Deputy Health Alberta has to do with the activities of or combating it, is a political impossibility. Minister Huang Jeifu, went further, the Calgary Chinese Consulate. Four conceding in a mid November 2006 individuals while attending a conference • Waiting times for transplants of organs speech that: “too often organs come at the University of Alberta in Edmonton in China are days and weeks. Everywhere from non consenting parties”. The World on June 11, 2004, witnessed two else in the world waiting times are Health Organization Guiding Principle 11 members of the Chinese Consulate months and years. A short waiting time requires transparency of sources, open distributing anti-Falun Gong literature. for a deceased donor transplant means to scrutiny, while ensuring that personal They complained to the police that this that someone is being killed for that anonymity of donors and recipients literature amounted to a hate crime transplant. are protected. China does not respect against Falun Gong. The police agreed. • There is no other explanation for this principle, so that claims of consent The Edmonton Police recommended the transplant numbers than sourcing that sometimes are made, despite prosecution. from Falun Gong. China is the second what Huang Jeifu said, are unverifiable. Any hate crimes prosecution within largest transplant country in the world As well, because prison is a coercive Canada must first have the consent of by volume after the US. Yet, until 2010 environment, consent in such a context is the Attorney General. The Attorney China did not have a deceased donation not meaningful. General of Alberta refused consent. system and even today that system The complainants challenged the produces donations that are statistically A. The Alberta Falun Gong Population decision of the Attorney General not to insignificant. The living donor sources are There are six Alberta connections to consent to prosecution in the Alberta limited in law to relatives of donors and the killing of Falun Gong for their organs Queen’s Bench. I acted as their lawyer. I officially discouraged because live donors I want to draw to your attention. One submitted to the Court that the Attorney suffer health complications from giving is the local Falun Gong population from General of Alberta failed to recognize up an organ. China. the causal role of propaganda in China The victims of persecution of Falun against Falun Gong in the persecution The Government of China does Gong in China are not just in China. They of Falun Gong. The anti-Falun Gong acknowledge that the overwhelming are here in Alberta. Some are here in material distributed by the two consulate proportion of organs for transplants in this audience. These people can tell you members has strong similarities to China comes from prisoners but asserts in much more specific detail than I can the propaganda that has incited hate that the prisoners who are the sources about the politicised Party direction of within China. Since this sort of material of organs are all sentenced to death. the persecution of Falun Gong up and has generated hatred in China, it is Yet, the number of prisoners sentenced down the Chinese power structure, compelling evidence that the material to death and then executed that would throughout China, the incessant, would likely expose a person to hatred in be necessary to supply the volume of vituperative incitement to hatred against Canada. transplants in China is far greater than Falun Gong in China, the impossibility The application of the complainants even the most exaggerated death penalty of getting out a contradictory or even was dismissed. Mr. Justice Wilson in statistics and estimates. Moreover, in different message about Falun Gong, the April 2007 for the Court did not side recent years, death penalty volumes total repression of divergent voices, with the Attorney General on whether have gone down, but transplant volumes, the Party insistence on recantation the material amounted to incitement to except for a short blip in 2007, remained of Falun Gong beliefs in writing, the hatred, but rather refused to overrule the constant. arbitrary detention without prosecution, exercise of the discretion of the Attorney Research in reports published in trial or sentence in mental hospitals, General. According to the Court, the June 2006, January 2007, and in the detention centres and re-education matter had to be left to the Attorney book Bloody Harvest, November 2009 through labour camps of those who General to decide. all of which I co-authored with David would not recant, the brutal systematic C. The CNOOC Takeover of Nexen Kilgour and in the book State Organs unending dehumanizing torture of The Chinese National Offshore Oil August 2012 I co-edited with Torsten those in detention who continue to Company or CNOOC obtained the Trey concluded that the bulk of prisoners refuse to recant, the systematic blood approval from the Government of who are sources of organs are mostly testing and organ examination of Falun Canada for purchase of the private practitioners of Falun Gong, sentenced Gong practitioners in detention and the Alberta based company Nexen. CNOOC to nothing. , in a chapter absence of such testing and examination has been a bitter and vicious persecutor published in State Organs, presents of non-Falun Gong prisoners, and the of Falun Gong. CNOOC’s subsidiary in Tianjin, the Bohai Oil Corporation, has Centrepiece 19:1 2013 page 5 its own 610 office subsidiary, called the centre, then either a mental hospital or a the context and consequences of their Falun Gong Treatment Group or Special re-education through labour camp. actions. - continued on page 5 In my view, in light of this history, the The Communist Party of China - continued from page 4 Government of Canada was mistaken attempts to suppress the old China, Case Group. in approving the CNOOC takeover of the classical China, the pre-Communist Bohai/CNOOC’s security force and Nexen. Now that the takeover has been China, and the real China. Falun Gong management assisted local police to approved, the issue of persecution is not spiritually and Yun aesthetically arrest, detain and send to brainwashing over. On the contrary, Albertans should try to keep this traditional China alive. centres or mental institutions their be insisting that their new neighbour The Alberta Government theatre employees who practised Falun Gong. stop the persecution of Falun Gong management, by putting in place Those sent to mental hospitals, including within all CNOOC companies, that all conditions that objectively prevent the pregnant women, were injected with 610 offices in all CNOOC companies be performance of , become part, nerve damaging drugs. dismantled, that CNOOC admit openly, by effect even if not by intent, of this Falun Gong employees were fined publicly and in full detail its human stultification of classical . in huge amounts, arbitrarily searched, rights violating past and that CNOOC The Government of Alberta dismissed, their pay withheld and compensate fully all its victims for the justifies the insistence on the net by their possessions confiscated. Those harm that all CNOOC companies have asserting that the net requirement is not dismissed were denied benefits inflicted. imposed on everyone. However, as this and bonuses. They were paid wages D. The Shen Yun Performing Arts situation amply demonstrates, there equivalent only to the minimum cost Calgary and Edmonton Government is a big difference between formal and of living, regardless of their seniority, theatres, in application of a policy substantive equality, between sameness position, expertise or education. guideline, have required that the and equity. There are 77 individual documented orchestra of the Shen Yun Performing E. Spam verifiable testimonies of this sort of Arts be submerged in a pit covered with Fake e-mails coming from Beijing extreme persecution. There are Falun a dark net for its performances. The spread round the world to discredit Falun Gong practitioners now in Alberta who company refuses to perform in these Gong. I have received many such e-mails worked for CNOOC and were harassed circumstances. myself. I know how, with technical for their beliefs but managed to escape Shen Yun is the aesthetic equivalent support, to trace the source of these the worst ravages of CNOOC persecution of Falun Gong, a modernization and e-mails and see, by tracing the internet because they got out of China in blending of ancient Chinese traditions. protocol address of the source, that the time. These practitioners personally The hosts in Alberta for Shen Yun are source is Beijing. know others who suffered far worse the Calgary and Edmonton Falun Dafa Many of these phoney e-mails target victimization. Associations. Albertans. In 2010, before the net Zeng Qinghong has a central figure Although Alberta officials call the requirement was imposed in Edmonton in the leadership of the Communist net a safety net, the net in fact creates and Shen Yun was performing there, Party. was his protégé. an unacceptable risk to the dancers anti-Falun Gong spammers sent a Zeng was the member of nine member by preventing coordination between wave of e-mails to Edmonton theatre governing body of the Communist Party dancers and the orchestra conductor managers in an attempt to stop Shen Yun of China from 2002 to 2007. He was vice who, in the pit and under the net, from performing there. In 2011, e-mails president from 2003 to 2008. cannot see the dancers. The caging of containing diatribes appearing to come Zeng was also a leader in the the orchestra in the net also prevents from Falun Gong were sent to Edmonton persecution of Falun Gong. He was the the audience from seeing the blending city councillors. Communist party official to whom the of Chinese and Western musical In 2012, a person posing as a Falun Minister of State Security reported and instruments. In addition, the musicians Gong practitioner named ‘Serena,’ he made sure that the whole public understandably feel they are being thanked Edmonton East MP Peter security system went after Falun Gong. treated disrespectfully, being required to Goldring by e-mail for supporting Falun Zeng, before he went to Beijing and play, in substance, in a cage. Gong and Shen Yun Performing Arts, and Communist Party Headquarters, worked Shen Yun performs globally. The told him that she had spread posters for CNOOC. Fu Chengyu who became Alberta Government theatres are the featuring his image around the world head of CNOOC after Zeng left is a Zeng only theatres in the world that have with the words ‘Peter supports Falun disciple and crony. Fu was chosen by prevented performance with insistence Dafa!’ written on them. When Goldring Zeng. This close connection between Fu on an inapplicable net requirement. expressed his concern that his image was and Zeng means that the persecution of Now I do not suggest for a moment being used without permission, Serena Falun Gong has been given the highest that the Alberta officials who have told him he would be ‘punished’ if he priority in CNOOC. in effect blocked the return of Shen opposed her actions. If you are a Falun Gong practitioner, Yun are somehow in cahoots with the An e-mail sent to a Southern Alberta employment for CNOOC in China is Government of China in the repression of Jubilee Auditorium manager involved in the first stop on a train whose final Falun Gong. Rather the Alberta officials the dispute with Shen Yun Performing destination, potentially at least for some, are oblivious to the global environment Arts written in broken English accused is an unmarked white van where your in which they operate. Their inflexibility, the manager and Alberta Culture organs are extracted and taken to the their insistence on a Procrustean one Minister Heather Klimchuk of being ‘evil’ nearest hospital. Stops along the way are size fits all policy for the net, shows I if they did not show support for Shen meetings with your immediate superior, would suggest not complicity, but rather Yun. The e-mail said that those who then the Communist Party officials who a blinkered approach, ignorance of oppose the show will be ‘punished.’ run your office, then the local detention These e-mails make Falun Gong Centrepiece 19:1 2013 page 6 appear irrational, zealous, and renounced the intention of conducting - continued from page 11 unbalanced. They appear to aim to them. The drug company Novartis in - continued on page 6 August 2010 issued a statement that the by the Canadian Bar Association - continued from page 5 company was observing a moratorium (CBA), although this may reduce pro- discredit the group and their activities. for its clinical immunosuppressive drug None of the senders identified in trials in China. Isotechnika should do the cessing times, the amendment also these e-mails are known to local Falun same. creates an unduly restrictive system Gong practitioners and their messages Conclusion that will remove large numbers of are uncharacteristic of Falun Gong. These six Alberta connections to the people from the application process The Alberta recipients have not, to my persecution of Falun Gong may seem to who could, in time, qualify (Letter, at knowledge, sought technical support to be a sequence of bits and pieces. Yet, 2). This has the potential of turning identify the source of these e-mails. They they should be considered as a whole. asylum seekers towards smugglers should do so. The failure to appreciate that victims in order to escape harm. Thus, this F. Isotechnika of the persecution of Falun Gong amendment, just like section 117, Information on the internet in are here, the refusal to prosecute can have the opposite effect than the spring of 2012 showed that the Chinese Calgary consulate officials for that intended by Parliament, by Edmonton based company Isotechnika incitement to hatred against Falun Gong, intended to commence clinical trials in the approval of the CNOOC takeover driving refugees into the hands of the end of August 2012 in China of the of Nexen, the insistence on a net smugglers. antirejection drug Voclosporin under requirement for Shen Yun which prevents It will be very interesting to see a contract with the Chinese company their performance, the inaction about what happens with the Appulonappa 3SBio. The drug would be used in kidney tracing the phoney spamming anti-Falun case. The Crown is appealing Justice transplant patients. Gong e-mails, and the failure of a local Silverman’s ruling to the British David Kilgour and I wrote last July to pharmaceutical company to commit to Columbia Court of Appeal (Dene, the Government of Canada Minister of a moratorium on the conduct of clinical Moore, Crown to Appeal BC Court Health, the United States Commissioner trials in China of anti-rejection drugs have Ruling Striking Down Portion of Hu- of Food and Drugs, and the European a cumulative effect. They both manifest man Smuggling Law, The Canadian Medicines Agency Executive Director and foster ignorance and blindness. Press, January 21, 2013), and the requesting that their agencies indicate Where is the coordination, the that, in deciding whether to approve the strategy, in Alberta, to combat the case may likely end up at the Su- antirejection drug Voclosporin for use persecution of Falun Gong and, in preme Court of Canada. Stay tuned. within your jurisdiction, they would not particular, the killing of Falun Gong for accept data generated from clinical trials their organs? It seems nowhere to be in China. We wrote to these agencies: found. "Clinical testing in China of How high a priority in Alberta does Coming Soon: transplant antirejection drugs the combat against the persecution of do not, in our view, meet Falun Gong and, in particular, the killing international standards of of Falun Gong for their organs have when transparency, traceability, Canadians are faced with competing ACLRC will soon and informed consent with considerations? The priority it seems is special regard to vulnerable not that high. Competing considerations populations. There is nothing all too often carry the day. be providing now in place, as far as we can When we put all the different bits see, that would allow your and pieces together, the picture that information on agency to be satisfied beyond forms is not pretty. Canadians have been a reasonable doubt that the doing far less in Alberta than we could to sourcing of the organs for the combat the persecution of Falun Gong our website for clinical trials of Voclosporin is and, in particular, the killing of Falun proper." Gong for their organs. We cannot act unless we see. People Temporary For- We also wrote Isotechnika itself concerned about human rights violations asking them to commence a moratorium often wring their hands, asking what can eign Workers, on trials in China for Voclosporin until we possibly do about them? The answer such time as transparency allows is a lot, when the consequences are right independent outsiders to be satisfied here in front of us. By disassociating Employers and beyond a reasonable doubt that the the various components of the Alberta sourcing of organs for those trials consequences, we present unnecessary meets international ethical standards. obstacles to perceiving and combating human resources These letters generated responses the persecution. and discussions, but no concrete Do you want to do something about persons. commitments. the killing in China of the Falun Gong Isotechnika has not, as far as I know, for their organs? If so, I suggest do to date commenced the conduct of these something now, here, in Alberta. See aclrc.com trials in China but also has not publicly Centrepiece 19:1 2013 page 7 Employer's Guide: Trans-identified People in the Workplace by Melissa Luhtanen In 2013 the ACLRC will be releasing its new Employers’ accommodations that are not working. The employer has a duty Guide For Trans-identified People In The Workplace. This to accommodate an employee to the point of “undue hardship”. Guide helps employers and employees understand their rights However, it is important to remember that Courts and Tribunals and responsibilities within the workplace, when someone have found that some hardship may be necessary in accommo- comes out as transgendered. The Employers’ Guide talks dating an employee. An example of a reasonable accommodation about: definitions, human rights law in the workplace, accom- would be giving a person time off for surgery, allowing them to modation, responding to medical requests, revealing one’s use the washroom that matches their gender identity, or ensuring gender identity to coworkers, the use of gendered bathrooms that they can access their medical benefits. Sometimes these -ac and privacy issues. The following are some excerpts from the commodations will involve increased costs to the employer (e.g., Guide. for time-off work) or a change within the workforce. The Alberta The Alberta Human Rights Act protects trans-identified Human Rights Commission has more information on the duty to people from discrimination in employment under section 7. accommodate (Duty to Accommodate Online: Alberta Human Under the Act, the ground of “gender” includes “being male, Rights Commission website: female or transgender” (Protected areas and grounds under http://www.albertahumanrights.ab.ca/Bull_DutytoAccom_web. the Alberta Human Rights Act, Online: Alberta Human Rights pdf (Accessed November 27, 2012)) on its website: www.alberta- Commission website: http://www.albertahumanrights.ab.ca. humanrights.ab.ca. (Accessed November 27, 2012)). Therefore, “transgender” Part of the accommodation process will likely involve the people are protected from discrimination and harassment in trans-identified employee using the bathroom that corresponds employment, and any terms or conditions of employment. with his or her identified gender. There have been some cases Employers have a duty to accommodate a trans-identified (See: Ferris v Office and Technical Employees Union, Local 15 person who needs time-off work for medical reasons, such [1999] BCHRTD No 55. Sheridan v Sanctuary Investments Ltd, as surgery or recovery from surgery. Employers also have a [1999] BCHRTD No 43, 33 CHRR D/467 (BC Trib)) that have duty to accommodate a trans-identified person who returns addressed the use of gendered washrooms. These cases have to work, presenting in their “new” gender. This gender may notably said that using the appropriate washroom is “significant” look “new” to the employer and other employees, but is the in the identity of a trans-identified person. Refusing to protect an transgender person’s inner identity. employee’s rights regarding the use of a washroom that matches Employees also have duties regarding accommodation, such their gender identity has been found to be discriminatory. as informing the employer of the need for an accommoda- tion, providing a doctor’s note for medical issues, discussing For more information about the Employers’ Guide or to book a potential accommodations that would work for both the em- speaker from the ACLRC please contact us at 403.220.2505 or go ployer and employee, and keeping the employer informed of to our website at www.aclrc.com. Congratulations to Yessy Byl, our Northern Alberta Human Rights Educator, for being awarded The Law Society of Alberta's 2013 Distinguished Service Awards in the Category of Pro Bono Legal Service The Law Society's description of Yessy's accomplishments: "Ms. Byl demonstrates a proactive, passionate commitment to advocating for the rights of Temporary Foreign Workers within the Alberta Legal Community and beyond. With a dynamic background in labour relations law, Ms. Byl has been a volunteer lawyer with the Edmonton Community Legal Centre (ECLC) since 2003. Over 100 low-income individuals and families have benefited from free legal services extended by Ms. Byl, who provides legal support and advice to Temporary Foreign workers. Her pursuit of justice not only manifests in her pro bono work on individual case files, she is a dedicated advocate and agent for social change. She has made significant contributions to research and publications, written letters, delivered speeches and engaged the public to enhance understanding of this fast-growing group of immigrants in Alberta. She is recognized as being single-handedly responsible for the organization of the Temporary Foreign Worker funding and project implemented by the ECLC, as well as the commencement of immigration outreach clinics. Moreover, she is a shining example of pro bono legal ser- vice working to “right situations where she discovered wrongdoing for those unable to adequately fend for themselves.” Centrepiece 19:1 2013 page 8

- continued from page 3 *This tribunal decides its own rules guised restriction on international trade *The federal government, in its ap- for procedure. They can decide to or investment….” parent wish to have a business and conduct hearings in secret if they investment agreement with China want to. *This provision is open to an at any price, is willing to acquiesce interpretation that would favour to aggressive bullying by China of *The decision of this tribunal is trade and business interests over other Asian nations in violation of final. There is no appeal to any environmental protection require- the International Law of the Sea. court,whether in China or Canada. ments.

Article 14 Taxation Article 17 Transparency of Laws, Regu- Sub-section (5) (b) (i) sets out that Sub-section (1) “Except as provided lations and Policies either country can sell arms, ammuni- in this Article nothing in this Agreement According to this article, each coun- tion and other military hardware and shall apply to taxation measures.” try has to provide to the other advance technology and nothing in this agree- *Thus, Canadian sovereignty in notice of any proposed new law, regula- ment has any impact on that. general, and Aboriginal rights and tion or policy or proposed changes to environmental protection are not any existing law, regulation or policy. *So, military hardware, technology priorities for the federal govern- This will give the federal governments are exempt from the agreement ment. However, retaining Canadian of both countries the opportunity to while its effects on environmental sovereignty over making or chang- review and comment on proposed new and aboriginal concerns are not. ing tax laws is of utmost concern laws, regulations or policies or pro- for them­—that, and apparently posed amendments. In conclusion, by way of summary: having a business and investment deal with China at the expense of *The wording of Article 17 is vague *Canadian sovereignty over envi- taxpayers, Aboriginal rights and the and broad enough to include ronmental laws and fresh water environment. anything that could impact on a is not important to the federal business investment so that does government. Neither are Aboriginal Article 15 Disputes between the Con- include Aboriginal rights, unsettled rights. tracting Parties land claims and of course, envi- Sub-sections 1-8 set out how dis- ronmental protection. Giving the *Rule of law takes a back seat to putes between Canada and China are to Chinese government a say in how, resolving disputes of all kinds that be settled. Disputes are to be resolved among other things, Aboriginal might arise and which affect Chi- through secret negotiations and if that land claims are to be settled or nese businesses and investments in doesn’t work, then disputes are to be what kind of environmental protec- Canada (including Aboriginal land resolved through secret tribunals who tion laws we have in place here in claims or the clean-up costs for an have the final say. Canada is very concerning. oil spill) to the decisions of secret tribunals that are free to make up *Arriving at a negotiated settle- Article 24 Arbitrators their own rules and whose deci- ment through diplomacy is to be According to Sub-section (2) (b), the sions are final. tried first. members of the arbitration tribunal are to be “independent of, and not be af- *Taxation, military production and *If a settlement cannot be nego- filiated with, or take instructions from, technology remain exempt from tiated within six months, either either Contracting Party….” the agreement while environmen- party can ask that the dispute be tal laws cannot constitute a dis- submitted to anad hoc arbitration *CNOOC is completely owned by guised restriction on international tribunal. (Ad hoc tribunal means the Government of China. China’s trade or investment. this is a specially constituted tri- appointee to the tribunal will likely bunal formed for this one purpose be taking his/her marching orders This agreement has been ratified— ­ only). from the Government of China. time will tell how it affects Canadian Where is the transparency in this sovereignty, aboriginal land claims *The governments of China and process? and other rights, as well as environ- Canada each appoint one of their mental protection matters. citizens to this tribunal. These two Article 33 General Exceptions people then select a third person Sub-section (2) allows each country to from another country that has dip- enact environmental laws subject to lomatic relations with both Canada the following: that these laws are “not and China. That person will chair applied in an arbitrary or unjustifiable the tribunal. manner, or do not constitute a dis- Centrepiece 19:1 2013 page 9

R v Appulonappa: Section 117 (Human Smuggling Provision) of theImmigration and Refugee Protection Act Struck Down as Unconstitutional By Dorab Colah

Dorab Colah is a graduate of the J.D. pro- the definition laid out in the Protocol. of Rights and Freedoms, Part I of the However, as noted by Justice Silverman, gramme at University of Calgary, and is cur- Constitution Act, 1982, being Schedule rently articling at ACLRC. this definition is a “negotiated mini- B of the Canada Act 1982 (UK), 1982, mum” standard, and States are entitled Introduction c. 11 (Charter). The accused argued, On September 26, 2007, Janet Hin- to pass domestic legislation that is and Justice Silverman agreed, that broader in scope than the definition in shaw-Thomas was arrested at the United because section 117 was written in a States-Canada border at Lacolle, Quebec. the Protocol in order to protect state way that could criminalize the conduct interests (Appulonappa, at para 69). Ms. Hinshaw-Thomas, the director of a US of persons who assist refugees due to based refugee resettlement organization, Section 117 of IRPA reflects a broader close family ties or for humanitarian definition than that in the Protocol, had arrived at the border with 12 Hai- reasons, the provision was overbroad tians, all seeking refugee protection within and, similar to Canada, Australia, the and inconsistent with the principles of United Kingdom, and the United States Canada. Ms. Hinshaw-Thomas did not seek fundamental justice. Justice Silverman financial compensation from the refugee have also defined the act of human found that section 117 would not be smuggling much broader than the ne- claimants, nor were her actions clandes- able to be saved under section 1 of the tine in nature. In fact, she had emailed gotiated minimum standard, as neither Charter, and thus, it was deemed to be of these countries include “financial or the Canadian border authorities five days of no force or effect. in advance telling them when she would material benefit” as an element of the Facts offence of human smuggling (Appulo- arrive at the border and how many refugee In Appulonappa, four individuals claimants she would be bringing. She was nappa, at para 72). were accused of human smuggling Justice Silverman went on to discuss charged by the Canadian authorities for vi- under section 117 of IRPA in relation olating section 117 of the Immigration and how certain categories of persons and to the arrival of 76 Tamil migrants on conduct were excluded from the defini- Refugee Protection Act (IRPA), which crimi- board the MV Ocean Lady of the B.C nalizes human smuggling. Section 117(1) tion of human smuggling laid out in the coast in October of 2009. Prior to the Protocol. These would include individu- states that “no person, shall knowingly jury selection for their trial, an applica- organize, induce, aid or abet the coming als who provide support to migrants for tion was made to the Court to deter- humanitarian reasons, as well as those into Canada of one or more persons who mine whether section 117 of the IRPA are not in possession of a visa, passport, or who provide support due to close fam- violated section 7 of the Charter, which ily ties (Appulonappa, at para 84). Jus- other document required by this Act”. provides that individuals may not be Given that Ms. Hinshaw-Thomas’ ac- tice Silverman pointed out that various deprived of their rights to life, liberty international documents have stressed tions were motivated by humanitarian and security of the person, except reasons, there was significant public outcry that the Protocol was never intended in accordance with the principles of to capture the actions of individuals following her arrest, and on November fundamental justice (Appulonappa, at 7, 2007, the charges against her were who, without receiving any financial para 29). or material gain, assist refugees due to dropped without explanation. However, Defining “Human Smuggling” many refugee advocates feared that oth- family ties or for humanitarian reasons Justice Silverman began his assess- (Appulonappa, at para 85-86). How- ers like Ms. Hinshaw-Thomas would find ment of the case by stating that there is themselves similarly charged, and argued ever, Justice Silverman also noted that no commonly accepted definition of hu- there is no international instrument, or that section 117 of the IRPA should be man smuggling (Appulonappa, at para amended so as to expressly exclude indi- domestic legislation that expressly pro- 65). Article 3 of the Migrant Smuggling hibits the prosecution of humanitarian viduals who assist refugees into Canada Protocol (Protocol) defines the crime of based on humanitarian motives or close aid workers or close family members “smuggling of migrants” as: from being charged with smuggling (Ap- family ties (Canadian Council For Refugees, the procurement, in order Proud to Aid and Abet Refugees, Campaign pulonappa, at para 87). to obtain, directly or indi- Explaining “Over-breadth” Backgrounder, January, 2008 at 1 (Back- rectly, a financial or other grounder)). To this date, the Government Citing the Supreme Court of Canada material benefit, of the (SCC) case of R v Heywood, [1994] 3 has not amended section 117. However, illegal entry of a person on January 11, 2013, those supporting S.C.R. 761 at 792-794, Justice Silverman into a State Party of which explained that when courts consider an amendment to the smuggling provi- the person is not a national sion received good news when the British whether a piece of legislation is over- or a permanent resident broad, the courts must first consider Columbia Supreme Court handed down its [emphasis added]. decision in R v Appulonappa, 2013 BCSC 31 the objective of the legislation, and then ask whether the State, in pursu- (Appulonappa). States that are signatories to the Proto- In Appulonappa, Justice Silverman ing that objective, uses means that are col are required to implement domestic broader than necessary to accomplish found that section 117 of the IRPA vio- legislation that captures the essence of lated section 7 of the Canadian Charter - continued on page 10 Centrepiece 19:1 2013 page 10 (Appulonappa, at para 122). - continued from page 9 knowing that it would be used to pay a In addition, the Crown argued that it (Appulonappa, at para 90). Under human smuggler, that family member section 117(4) of IRPA serves as a mech- section 7 of the Charter, if legislation would likely be captured by the wording anism that would prevent the prosecu- infringes one’s life, liberty, or security of section 117 (Appulonappa, at para tion of humanitarian workers and family of the person in a manner that goes be- 105). members. Section 117(4) states that yond what is needed to accomplish the The final hypothetical provided by “no proceedings for an offence under governmental objective, that legislation the Defence involved a situation where this section may be instituted except will be deemed to violate the principles humanitarian or legal workers assist by or with the consent of the Attorney of fundamental justice and will there- refugee claimants to arrive at a port of General of Canada.” The Crown agreed fore violate section 7 of the Charter. entry in order to make a refugee claim. that the Protocol and other internation- Further, Justice Silverman noted that in In addressing this hypothetical, the De- al instruments signed by Canada never deciding whether legislation is overly fence raised the case of Ms. Hinshaw- intended that humanitarian workers broad, the SCC has stated that courts Thomas as an example of how humani- or family members be charged with may consider the application of the tarian workers can be captured by the human smuggling. The Crown stated legislation to hypothetical scenarios, wording of section 117 (Appulonappa, that section 117(4) reflects this inten- provided that those scenarios are “rea- at para 107). The Defence pointed out tion, as the Attorney General may not sonable” (Appulonappa, at para 93-94). that international instruments that Can- consent to the prosecution of humani- Defence Arguments ada is a signatory to, such as the Proto- tarian workers or family members who The Defence noted that the objective col, have stressed that the individuals assist refugees. Although the Attorney sought by the Government in imple- represented in the above hypotheticals General has the discretion to deter- menting section 117 of IRPA was to should not be prosecuted for human mine whether there is evidence that an combat human smuggling, but argued smuggling (Appulonappa, at para 106). individual is conducting the legitimate that the wording of the section cap- Thus, the Defence claimed that the activities of a humanitarian worker tured actions of persons that the Gov- wording of section 117 captures a wider or family member, once the Attorney ernment had no intention of prosecut- range of conduct and persons than is General is satisfied that a person is a ing, going beyond what was needed to necessary to achieve the government’s humanitarian worker or family member, accomplish the governmental objective. objective (Appulonappa, at para 109). he or she has no discretion to consent Thus, the defense claimed that the pro- Crown Arguments to a charge (Appulonappa, at para 131). vision was overly broad (Appulonappa, The Crown argued that the objec- Finally, the Crown argued that at para 97). tive of section 117 was to stop human Parliament is entitled to deference in The Defence provided three hy- smuggling and to protect the victims of the means that it has chosen to fulfill pothetical situations to illustrate the human smuggling. The Crown argued its objective, stating that it would be over-breadth of section 117. The first that section 117 was deliberately improper for the Court to strike down involved a situation where friends or drafted in a broad fashion so as to section 117, as it would amount to an family members arriving in Canada as provide the government with flexibility unwarranted judicial intervention in an refugees at the same time assist other in achieving its objective. The Crown ar- area dealt with properly by the Parlia- family members to arrive as refugees gued that the section did not go beyond ment of Canada (Appulonappa, at para together with them. Under this sce- what was necessary to achieve the 134). nario, a mother arriving as a refugee government’s objective and thus, was Analysis by Justice Silverman with her child could be considered a not overbroad (Appulonappa, at para Responding to the Crown’s argu- smuggler under section 117, as she 112). The Crown stated that although ment that the proposed hypotheticals could be seen as aiding or abetting the the legislation does not expressly were not reasonable because no person arrival of her child. Similarly, a husband exempt humanitarian workers or family in the hypotheticals could ever be who arrives with his spouse after the members, “…it has been the practice of charged, Justice Silverman found the husband does all the preparatory work Canada to not charge such persons, and Crown's position untenable. He stated could also be in violation of section 117. that…such a practice is best assessed that “the determination of whether or Individuals who are not family mem- on a case by case, and fact by fact basis. not a hypothetical is reasonable must bers could also be caught by section It is best fulfilled by discretion, rather be based upon the activity complained 117. If two refugee claimants travel than by statute” (Appulonappa, at para of, not upon the possibility of whether together, each assisting the other to 119). or not persons would ever be charged” arrive in Canada, both could be found The Crown also attacked the hypo- (Appulonappa, at para 148). He added liable under section 117 (Appulonappa, theticals used by the Defence. It argued that the hypotheticals were “technically at para 104). that the proposed hypotheticals were within the scope of human smuggling A second hypothetical raised by the not reasonable, stating that they were under section 117”, yet “…are not Defence was where a Canadian citizen far-fetched, marginally imaginable, re- within the objectives that Canada is try- sent money to a family member in mote and extreme examples. It argued ing to achieve through section 117. To another country with a legitimate need that there was no possibility that the the contrary, it is the clear intention of to escape that country. If the Cana- persons suggested in the hypotheticals the government not to prosecute dian family member sent the money would be charged under section 117 - continued on page 11 Centrepiece 19:1 2013 page 11 - continued from page 10 it would still be more challenging for a refugees due to compassionate rea- such people” (Appulonappa, at para person to anticipate conduct that could sons. This is also reflective of interna- 149). However, that intention is not be penalized to the same certainty than tional opinion. If this is so, the govern- expressed within section 117, which if that conduct was based upon actual ment should revise section 117 in a way makes the section much broader than legislation. Essentially, a person could that makes it clear what activities are necessary. Justice Silverman added that not know whether or not the Attorney considered, and not considered to be the over-breadth of the section would General would consent to a prosecution human smuggling. make it “…impossible for persons to (Appulonappa, at para 161). This case also raises another issue. know if certain activities (those of hu- Justice Silverman ruled that section Human smuggling is considered an manitarian aid workers and close family 117 of IRPA could not be saved by sec- activity worthy of criminal sanction members) will result in charges under tion 1 of the Charter, which requires the due to the belief that it allows criminal, section 117, despite “Canada’s inten- Court to balance the impugned legisla- and/or terrorist organizations to prey tion to the contrary” (Appulonappa, tion with the public interest. Thus, Jus- upon, and exploit vulnerable individu- at para 153). Thus, Justice Silverman tice Silverman declared section 117 to als seeking to escape life-threatening found the section cast “too wide a net” be of no force or effect (Appulonappa, situations. If this is true, it is important and found it “…inconsistent with the at para 168-178). that the government provides asylum principles and purposes of the inter- Commentary seekers with incentives to use legal national Conventions and Protocols” Justice Silverman’s decision in this and government sanctioned channels (Appulonappa, at para 155). case was the correct one. Following to escape from danger. As discussed Justice Silverman also rejected the the arrest of Ms. Hinshaw-Thomas, earlier, the over-breadth of section 117 Crown argument that section 117(4) three former Attorneys General and may create a “chilling effect”, which would serve as a mechanism to prevent three former Ministers of Immigration could preclude humanitarian workers or the prosecution of persons that Parlia- authored a letter stating that section family members from assisting asylum ment did not intend to target. First, 117(4) has proven inadequate in serv- seekers. Without these parties available Justice Silverman raised the example ing as a safeguard against the prosecu- to help them, individuals seeking refuge of Ms. Hinshaw-Thomas to show that tion of individuals who assist refugees may turn towards criminal and/or ter- section 117(4) does not always act as out of humanitarian concerns or close rorist organizations to help smuggle a safeguard against the prosecution of family ties. The authors concluded by them to Canada, which is exactly the humanitarian workers (Appulonappa, recommending that “appropriate regu- type of activity that the government is at para 160). Second, he added that latory and legislative changes should be trying to fight. even if section 117(4) operates to adopted” (Backgrounder, at 9). Justice Recent amendments to the Immigra- protect humanitarian workers and Silverman correctly recognized the tion and Refugee Protection Regulations family members, it is unclear how such shortcomings of section 117 (4) when have also disincentivized, rather than persons could raise this as an issue. determining the over-breadth of sec- incentivized, the use of legal channels Would they raise it in Court, or raise it tion 117. to safety (Canadian Bar Association, with the Attorney General? Who would Furthermore, the rule of law requires Immigration and Refugee Protection carry the burden of raising it? Under that individuals be provided notice of Regulations: Private Sponsorship of what circumstances could a decision what they can and cannot be legally Refugees Program, Letter to Citizenship to prosecute be challenged? (Appulo- penalized for. As Justice Silverman and Immigration, July 9, 2012) (Letter). nappa, at para 161) In addition, Justice noted, there was no evidence detailing Resettled refugees are either govern- Silverman noted that even if there was what standard the Attorney General ment assisted or privately sponsored. an obligation not to prosecute family uses in deciding whether to prosecute Private sponsors can consist of Sponsor- members and humanitarian workers, it cases dealing with human smuggling. ship Agreement Holders (SAH’s), Groups was unclear how that obligation could The consequence of failing to provide of Five (five or more Canadian citizens be enforced by the courts. Moreover, such notice is that it can have a “chill- or permanent residents over the age if the obligation was a matter of policy, ing effect” on the activity in question. of 18), or community sponsors. The Justice Silverman noted that there Essentially, individuals will not engage government has managed the demand was nothing preventing that policy in an activity, albeit innocent, out of a from SAH’s by imposing a cap on the being changed by administrative fiat fear that they may be found criminally number of refugees they may sponsor. (Appulonappa, at para 161). Finally, liable. This has driven refugees to Groups of Justice Silverman stated that there It is also important that courts Five and community sponsors. The new was no evidence before him detailing enforce laws as they are written, as amendment to section 153 of the IRPR the standard that guides the Attorney opposed to interpreting implicit, but manages the demand to Groups of Five General’s discretion in deciding to lay, unstated executive policy or legislative and community sponsors by requiring or withhold a charge, and that there intentions. In its arguments, the Crown the United Nations High Commission on was nothing requiring such a stan- asserted that it is not the government’s Refugees (UNHCR) or a foreign state to dard to be made public. Even if such a intention to prosecute humanitarian recognize that the foreign national be- standard existed, and was made public, workers or family members who assist ing sponsored is a refugee. As noted - continued on page 6 Centrepiece 19:1 2013 page 12 Supreme Court of Canada Changes Direction on Discrimination and Disability

Reprinted from LawNow Jan/Feb 2013 p. 49 By Linda McKay-Panos

The caselaw on disability and It is important to note that the fac- afterEldridge , when the SCC appeared discrimination has had its highs and tors considered in finding discrimina- to move away from the Andrews test lows over the past decade and a half. A tion under Charter section 15(1) relied for discrimination to a test that was set recent decision of the Supreme Court upon by the court in Eldridge were out in the case of Law v Canada (Min- of Canada, Moore v British Columbia those laid out in Andrews v Law Society ister of Employment and Immigration), (Education) 2012 SCC 61 (“Moore”), of British Columbia, [1989] 1 SCR 143 [1999] 1 SCR 497 (Law). In Auton, the provides hope for those with disabili- (Andrews): SCC, guided by Law, set out the follow- ties, particularly learning disabilities, I would say then that discrimi- ing issues as guidelines for determining and their families. nation may be described as a whether there was discrimination (para The first significant Supreme Court distinction, whether intentional or 26): of Canada (“SCC”) case in the disability not but based on grounds relating (1) Is the claim for a benefit area was Eldridge v British Columbia to personal characteristics of the provided by law? If not, what rel- (Attorney General), [1997] 3 SCR 624 individual or group, which has the evant benefit is provided by law? (“Eldridge”). Two medical patients, who effect of imposing burdens, obliga- (2) Was the relevant benefit were hearing impaired, successfully ar- tions, or disadvantages on such denied to the claimants while gued that the British Columbia govern- individual or group not imposed being granted to a comparator ment’s failure to provide sign language upon others, or which withholds or group alike in all ways relevant to interpreters as an insured benefit under limits access to opportunities, ben- benefit, except for the personal the Medical Services Plan violated Ca- efits, and advantages available to characteristic associated with nadian Charter of Rights and Freedoms other members of society. Distinc- an enumerated or analogous (“Charter”) section 15(1) by discriminat- tions based on personal charac- ground? ing on the ground of physical disability. teristics attributed to an individual (3) If the claimants succeed on The SCC noted that this was an ex- solely on the basis of association the first two issues, is discrimina- ample of adverse effects discrimination with a group will rarely escape the tion established by showing that because hearing impaired patients charge of discrimination, while the distinction denied their equal failed to benefit equally from a service those based on an individual’s human worth and human dignity? (health care) offered to the general merits and capacities will rarely be public (paras 63 to 73). The SCC noted so classed. In analyzing the three issues in that they were not ruling that sign Auton, the SCC first noted that the language interpretation would have to Seven years later, the disability British Columbia Medicare Protection be provided in every medical situation; community was disappointed with the Act did not promise that any Canadian effective communication should take result in Auton (Guardian ad litem of) would receive funding for all medi- into consideration such factors as the v British Columbia (Attorney General) cally required treatment. All that was importance of the information to be 2004 SCC 78 (“Auton”). A number of conferred was core funding for services communicated, the context in which parents of autistic children applied provided by medical practitioners, with the communications will take place and for a declaration that the province of funding for non-core services left to the the number of people involved (para British Columbia’s failure to fund ap- province’s discretion. Thus, the benefit 82). In finding that the policy was not plied behavioural therapy for autism was not provided for by the law (para saved by Charter section 1 (reasonable violated Charter section 15(1). While 35). The SCC distinguished the Eldridge and justifiable in a free and demo- the government had funded a number case on this point, by stating that El- cratic society), the court noted that the of programs for autistic children, it did dridge was concerned with unequal ac- claimants were asking only for equal not establish funding for the applied cess to a benefit that the law conferred, access for services that are available to behavioural therapy program because and with applying a benefit-granting all, and that the government had not of financial constraints, and the new- law in a non-discriminatory fashion. By provided evidence that equal access ness and controversial nature of the contrast, Auton was concerned with would unduly strain the fiscal resources therapy. While the lower British Colum- access to a benefit that the law had not of the state. Thus, the government bia courts found that the failure to fund been conferred (para 38). had not reasonably accommodated the autism therapy for autistic children While the SCC had concluded that the appellants’ disability, nor had it ac- violated Charter section 15(1), the SCC there was no benefit provided by law, commodated the appellants’ need for disagreed and allowed the govern- the court went on to consider the other accommodation to the point of undue ment’s appeal. two issues. With respect to finding a hardship (para 87; 94). The outcome in Auton was influ- comparator group (issue #2), the court enced by the developments in the years -continued on page 13 Centrepiece 19:1 2013 page 13

- continued from page 12 test is, in substance, the same. norm of substantive equality in s. held that the appropriate comparator 15(1) of the Charter? group was (para 55): [18] In Andrews, McIntyre J. … a non-disabled person or a person viewed discriminatory impact [60] In summary, a mirror com- suffering from a disability other through the lens of two concepts: parator group analysis may fail to than a mental disability (here au- (1) the perpetuation of prejudice capture substantive inequality, tism) seeking or receiving funding or disadvantage to members of may become a search for same- for a non-core therapy important a group on the basis of personal ness, may shortcut the second for his or her present and future characteristics identified in the stage of the substantive equality health, which is emergent and enumerated and analogous analysis, and may be difficult to only recently becoming recog- grounds; and (2) stereotyping on apply. In all these ways, such an nized as medically required. the basis of these grounds that approach may fail to identify — results in a decision that does and, indeed, thwart the identifica- Because there was no evidence of not correspond to a claimant’s tion of — the discrimination at how members of the appropriate com- or group’s actual circumstances which s. 15 is aimed. parator group were treated, a finding of and characteristics. …. Addition- … discrimination could not be sustained ally, McIntyre J. emphasized that [63] It is unnecessary to pinpoint (para 62). a finding of discrimination might a particular group that precisely With regard to discrimination (issue be grounded in the fact that the corresponds to the claimant #3) the SCC said that the failure to es- impact of a particular law or group except for the personal tablish the basis for a claim for discrimi- program was to perpetuate the characteristic or characteristics nation deprived them of a foundation disadvantage of a group defined alleged to ground the discrimina- for inquiring whether any distinction by enumerated or analogous s. 15 tion. Provided that the claimant was discriminatory in the sense of treat- grounds…. establishes a distinction based on ing autistic children as second-class In Withler, the SCC said the follow- one or more enumerated or anal- citizens and denying their fundamental ing with respect to comparator groups ogous grounds, the claim should human dignity (para 63). (paras 2, 60 and 63): proceed to the second step of As demonstrated in Auton, afterLaw , [2] To resolve this appeal, we the analysis. This provides the selecting an appropriate comparator must consider comparison and flexibility required to accommo- group and requiring that the distinction the role of “mirror” comparator date claims based on intersecting denied a person’s equal human worth groups under s. 15(1), an issue grounds of discrimination. It also and dignity created confusion and ob- that divided the courts below. avoids the problem of eliminat- stacles for claimants seeking to rely on In our view, the central issue ing claims at the outset because Charter section 15(1). in this and other s. 15(1) cases no precisely corresponding group In the years following Auton, the SCC is whether the impugned law can be posited. revisited the Law test in R v Kapp, 2008 violates the animating norm of SCC 41 (“Kapp”) and Withler v Canada, s. 15(1), substantive equality: Now we arrive at the Moore case in 2011 SCC 12 (“Withler”), and addressed Andrews v. Law Society of British 2012. At first glance, one would expect some of the concerns with finding an Columbia, [1989] 1 S.C.R. 143. the result to be similar to the Auton appropriate comparator group and the To determine whether the law case. However, it more closely re- issue of human dignity in the discrimi- violates this norm, the matter sembles the outcome in Eldridge. First, nation analysis. must be considered in the full it should be noted that Moore is a case In Kapp, the SCC said the following context of the case, including the based on British Columbia’s Human about discrimination (paras 17 to 18): law’s real impact on the claim- Rights Code, rather than the Charter. [17] The template in Andrews, ants and members of the group However, in many human rights cases, as further developed in a series to which they belong. The central the courts rely on discrimination case- of cases culminating in Law v. s. 15(1) concern is substantive, law based on the Charter (particularly Canada (Minister of Employment not formal, equality. A formal Charter section 15(1)). and Immigration), [1999] 1 S.C.R. equality analysis based on mirror Jeffrey Moore’s father, Frederick, 497, established in essence a two- comparator groups can be detri- filed a human rights complaint against part test for showing discrimina- mental to the analysis. Care must the School District and the British tion under s. 15(1): (1) Does the be taken to avoid converting the Columbia Ministry of Education alleging law create a distinction based inquiry into substantive equality that Jeffrey had been discriminated on an enumerated or analogous into a formalistic and arbitrary against because of his disability and ground? (2) Does the distinction search for the “proper” compara- had been denied a service customarily create a disadvantage by perpetu- tor group. At the end of the day available to the public contrary to BC’s ating prejudice or stereotyping? there is only one question: Does Human Rights Code, section 8. Jeffrey These were divided, in Law, into the challenged law violate the had a severe learning disability and the three steps, but in our view the - continued on page 14 Centrepiece 19:1 2013 page 14

- continued from page 13 BC or the District had any justification assistance so as to avoid future human intense remedial instruction he needed for their conduct (e.g., in closing the rights complaints. for his dyslexia was not available in Diagnostic Centre). While the Tribunal One can now understand (if not the public school system. Based on the had accepted that the District faced agree with) the divergence between the recommendation of the public school financial difficulties, it also found that outcomes in these cases. The difference psychologist, Jeffrey was enrolled in the cuts were disproportionably made largely flows from the differing focus on specialized private schools that charged to special needs programs. Also, the the elements of a claim of “discrimina- tuition (paid by his family). The Human District had not looked at any alterna- tion”, and in particular, the role of com- Rights Tribunal concluded that the fail- tives that could be made available to parator groups in the analysis. In Auton, ure of the public school system to give accommodate special needs students the appropriate comparator group was Jeffrey the support he needed to have if the Diagnostic Centre were closed. front and centre and functioned to meaningful access to the educational Thus, the finding of discrimination Auton’s detriment. In addition, Auton opportunities offered by the Board was against Jeffrey was restored (para 53). focused on the discretionary nature discrimination under the Human Rights However, the SCC declined to uphold of the services in question (they were Code. In addition, the Tribunal ordered the Tribunal’s finding that systemic rem- “non-core” services). This is a formal that Jeffrey’s parents be reimbursed for edies were necessary. The Tribunal had view of discrimination in which the im- the costs related to his attendance at ordered the following (para 57): pact of the denial of services (adverse private schools, as well as $10,000 for *That the Province allocate effect) was not considered. In Moore, pain and suffering (para 20). The Tribu- funding on the basis of actual the SCC focused on the access to equal nal also found that there was systemic incidence levels, establish mecha- benefit from a service provided to the discrimination by the District because nisms ensuring that accommoda- general public (as in Eldridge). of the underfunding of the Severe tions for Severe Learning Disabili- Disability advocates will hope that Learning Disabilities programs and the ties students are appropriate and the ruling in Auton was merely a detour closing of a Diagnostic Centre aimed meet the stated goals in legisla- on the path to substantive equality for at providing services to students with tion and policies, and ensure that persons with disabilities. severe learning disabilities. Thus, the districts have a range of services Tribunal ordered a wide range of sys- to meet the needs of Severe ACLRC Re-Brands temic remedies against both the District Learning Disabilities students. You will soon notice that ACLRC and the Province of BC (para 22). *That the District establish The Supreme Court of BC overturned mechanisms to ensure that its has refreshed our colours and the Tribunal’s decision, finding that delivery of services to Severe our logos. We will also be Jeffrey’s situation should be compared Learning Disabilities students changing our website and have to other special needs students and not meet the stated goals in legisla- to the general student population. This tion and policies, and ensure that added a presence on facebook. failure to compare Jeffrey with the ap- it had a range of services to meet You will notice other social propriate comparator group had tainted the needs of Severe Learning Dis- the whole discrimination analysis and, abilities students. media opportunities on our as a result, the Court overturned the *The Tribunal remained seized of website! Please visit our face- Tribunal’s decision (para 23). A major- the matter to oversee the imple- book page and "like" us so we ity of the BC Court of Appeal agreed mentation of its remedial orders. with the BC Supreme Court, stating that The SCC held that since the claim can have more functionality on he should not have been compared to was made on behalf of Jeffrey, the facebook: the general student population (para remedies should address his situation. https://www.facebook.com/pages/ 24). One dissenting Justice would The other systemic remedies were too have allowed the appeal, holding that remote. While evidence of systemic dis- Alberta-Civil-Liberties-Research-Cen- special education was the means by crimination was admissible to demon- tre/462772210441206 which meaningful access to educational strate discrimination against Jeffrey, the services was achieved by students with remedy should address the individual learning disabilities (para 25). complaint. The SCC agreed with the dissent- Some disabilities advocates are dis- ing Justice, and held that if Jeffrey was appointed that the systemic remedies compared only to other special needs were not upheld, but this does not students, full consideration cannot be mean that other people cannot benefit given to whether had had genuine ac- from the ruling in the case. If they are in cess to the education that all students the same situation as Jeffrey, they can are entitled to in British Columbia (para complain to the Human Rights Tribunal 31). or they can expect that the Province The SCC next looked at whether and District will provide appropriate Centrepiece 19:1 2013 page 15 Selected Research Centre Publications

NEW Employer's Guide: Trans-identified people in the Workplace interpretation and legislative review, such as human rights, family Handy guide to terminology, pertinent human rights law, privacy, issues, hate crimes, transgendered persons' rights, refugees and revealing gender identity to other employees, use of bathrooms and immigrant issues and issues in schools. 80+ pages. 2012 ISBN #1- other issues regarding accommodation of trans-identified persons in 896225-71-3 ($20 + s/h) the workplace. 4 pages. Available in booklet format (free) or online at aclrc.com (downloadable resources). Annotation of the Alberta Human Rights Act, 2011 Contains full text of the Alberta Act, including recent amendments, by-laws, Fetal Alcohol Spectrum Disorder and the Adult Criminal Justice current caselaw and tribunal decisions. Table of Concordance and System in Canada Fetal Alcohol Spectrum Disorder (FASD) affects other resources. 150+ pages. 2011 ISBN #1-896225-68-3 ($25 + s/h) adults and children around the world. In the past several years, there have been a number of Canadian initiatives addressed at Seniors and the Law: A Resource Guide 3rd Edition In a question- dealing with youth in the criminal justice system who have FASD. answer format, provides an overview of issues facing seniors, The damage inflicted by alcohol consumption during pregnancy is including abuse, mental health, personal directives, powers of permanent. Thus, although programs aimed at dealing with criminal attorney and consumer protection. Includes a glossary and list of behaviour of youth are admirable, FASD may also be a factor in senior-serving agencies in Alberta. 150+ pages. Available as a PDF many adults engaged in criminal behaviour. Our report focuses on on website. 2000. Updated 2010. ISBN #1-896225- 28-4 ($25 + s/h) the central issues faced by adults with FASD in the criminal justice system. These include making false confessions, being permanently Temporary Foreign Workers in Alberta: Human Rights Issues. An unfit to stand trial, being unable to rely on the defence of not overview of the facts, issues, law and practical solutions relating criminally responsible on account of mental disorder, the relevance to the management of temporary migration in Canada. Recent of FASD to the sentence received after a finding of guilt, and finally, shifts in Canada to increased temporary migration of persons with the effectiveness and desirability of incarceration for FASD adults. lower skill levels has resulted in human rights abuses and significant 114 pages. 2012. ISBN # 1-896225-64-2 ($25+ s/h). challenges, for temporary foreign workers, employers and service providers. Provides background information and statistics on global LGBT Rights: Climbing the Judicial Steps to Equality Canadian and Canadian migration, the current framework and mechanics of laws regarding lesbian, gay, bisexual and trans-identified (LGBT) the temporary foreign worker program, the current international individuals and couples have drastically changed in the past twenty con-text and law, and particular interests of key stakeholders. years. After same-sex marriage rights became a reality in early Contains concluding comments and recommendations for change 2000, many people thought that human rights and equality for in Alberta and Canada. 140+ pages. 2010 ISBN# 1-896225-60-8 ($25 LGBT people and same-sex couples had been achieved. However, + s/h) this perception does not play out in a detailed examination of the law, policies and accessing legal resolutions. This paper outlines the Privacy Handbook for Canadians: Your Rights and Remedies areas where the law has not been amended to protect LGBT people Second Edition. User friendly information about government and and where its application results in differential treatment of LGBT private sector privacy laws that affect all Canadians. 400 pages. individuals. Includes a history of LGBT rights in Alberta. It then 2010. ISBN # 1-896225-34-9 ($40 + s/h) reviews legal areas that have the potential for continued change,

Order Form No shipping/handling charges for Please send me the publications ______Seniors and the Law 3rd ed publications picked up at our office. indicated: ($25 s/h) No GST is payable. ___Employer's Guide: Trans-identified Please complete the form on reverse. people in the Workplace ______Temporary Foreign Workers in Please contact the office or visit _____Fetal Alcohol Syndrome and the Alberta ($25 + s/h) aclrc.com for a complete resource Adult Criminal Justice System($25 + s/h) list. _____Privacy Handbook for Canadians, ___ LGBT Rights...($20 + s/h) Second Edition ($40 + s/h) Alberta Civil Liberties ______Annotation of AHRA 2011 Research Centre ($25 s/h) University of Calgary 2500 University Dr. N.W. Room 2350 Murray Fraser Hall For a full list of publications, visit our website Calgary, Alberta T2N 1N4 at aclrc.com Centrepiece 19:1 2013 page 16 ACLRC's Civil Liberties Award given to Saima Jamal Below is the speech delivered by Brian Seaman before the award presentation Think globally; act locally. We’ve all heard comes to us as a petroleum company hiring live their lives freely and in harmony this saying. For people who want to make the mercenaries to drive indigenous people from with others and the environment. world a better place, the message is clear. We their ancestral homeland in the Amazon rain As I look around this room, I recog- live on one planet. What happens somewhere forest. nize people who are working locally else does affect our lives locally. What we do lo- During these past three years, in her ca- to raise awareness about human cally does have an impact on the world around pacity as programme manager at the Univer- rights, civil liberties and social justice us. sity of Calgary Consortium for Peace Studies, issues in our city, our province, and Think globally; act locally. Nobody is quite Saima Jamal has organized dozens of events to our country. I recognize too that you, sure who first came up with this powerful raise awareness about human rights and civil and we at the Alberta Civil Liberties phrase, this call to speak up, to take action, liberties issues at home and abroad. In a very Research Centre, are making impor- when faced with evil, evil which comes to us in real way, Saima has brought the world to our tant contributions in these areas. many faces. It comes to us as racism. It comes door. There has been much talk over the years However there are few among us to us as sexism. It comes to us as hatred for about the idea of global citizenship. Saima, who can match the dedication, the people living on the other side of a wall. It through her work, is helping so many of us passion and the leadership of the realize that people everywhere have a right to recipient of this year’s Alberta Civil Liberties Research Centre award for Thanks to ACLRC's Funders and Donors leadership in human rights. There- The Alberta Civil Liberties Research Centre appreciates the contributions of fore, it is my honour, my privilege and my pleasure, to present this award volunteers and donors, and the support of agencies that provide grants to the to my friend, my colleague, my apu, Centre, including: Saima Jamal. *The United Way of Calgary - donor choice *The Sheldon M. Chumir Foundation for Ethics in Leadership *Alberta Human Rights and Multiculturalism Education Fund *Canadian Race Relations Foundation *Alberta Association for Multicultural Education *Alberta Community Initiatives Program *Alberta Summer Temporary Employment Program (STEP) *Kerry Cundal *Sherritt Greene *Keith Johnstone *Kamran Bikhari *Ernst & Young Left to Right: Linda McKay-Panos, *Tonya Doell Saima Jamal, Brian Seaman *Western Canada High School *Miles Buckley

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