MPs speak out in support of terror suspect

Recently Opposition MPs spoke out in favour of Adil Charkaoui, who was arrested in 2003 on suspicion of being an Al-Qaeda operative. Charkaoui is currently in legal “limbo”; although he was successful in challenging the constitutionality of security certificates, the Supreme Court gave Parliament one year to re-rewrite their security laws. Until the Supreme Court ruling is enacted, Charkaoui could still be deported.

Charkaoui v. Canada (Citizenship and Immigration, the Supreme Court held that the security certificates violated sections 7 and 9 of the Canadian Charter of Rights and Freedoms. The “secret trail” procedure infringed section 7 of the Charter because it failed to ensure a fair hearing, and the detention under the Immigration and Refugee Protection Act violated section 9 because it arbitrarily prevented case review until 120 days after a certificate was confirmed [2].

Since the decision, there have been more developments to Charkaoui’s case. On March 15, 2007, the Supreme Court agreed to hear an appeal from Charkaoui with regard to the validity of evidence against him compiled by the Canadian Security Intelligence Service (CSIS). Pursuant to policy, CSIS destroyed records of their interviews with Charkaoui and only retained summaries of the evidence. “Charkaoui contends the missing notes and tapes would have helped him mount a defence to establish his innocence and strike down the security certificate” [3]. On April 20, a key witness against Charkaoui recanted his testimony, claiming that he made the allegations under psychological stress. “Charkaoui’s lawyers and supporters say the new revelation only strengthen’s [Charkaoui’s] case” [4].

Sources [1] “MPs speak out in support of terror suspect” CBC News (25 April 2007). [2] Elizabeth Liu, “Supreme Court holds that part of security certificate process is unconstitutional,” Centre for Constitutional Studies. [3] “Supreme Court will hear Adil Charkaoui’s appeal” CBC News (15 March 2007). [4] supra, note 1.

Update: Court Orders the Federal Government not to Move Prisoners

In light of the federal government’s plans to close Canada’s only minimum security prison for women four of the prisoners currently housed in the Isabel McNeill House have launched a Charter challenge, claiming that their ss. 7 (security of the person), 12 (protection against cruel and unusual punishment) and 15 (equal treatment regardless of sex) rights will be violated if they are transferred to a higher security facility. The s. 15 argument is advanced on the basis that male prisoners have access to a number of minimum security institutions across the country, whereas, without the Isabel McNeill House, female prisoners will not.

The prisoners applied to the Ontario Superior Court for an order preventing Correctional Services of Canada from transferring them to another institution until the merits of their case could be heard. On April 5, 2007 the applications judge concluded that, “there would be no deprivation of liberty if the applicants are transferred” [i] and denied the prisoners’ request. The applicants appealed the decision to the Ontario Court of Appeal.

The Court of Appeal’s decision in Dodd v. Canada (Correctional Services of Canada) came to a different conclusion. The court found that the prisoners’ materials were enough to show that a transfer would, prima facie (on its face), constitute a deprivation of liberty. The court accordingly set aside four days beginning October 9 for the case to be heard in full; until this date the prisoners cannot be transferred, effectively requiring the federal government to keep the prison open until that date.

Sources:

Dodd v. Canada (Correctional Services of Canada) 2007 ONCA 250 (CanLII). Women’s prison will get day in court: Fight to keep Isabel MacNeill house open set to resume in October – The Kingston-Whig Standard (2 May 2007)

Further Reading

Backgrounder – Equality Rights Closure of the Isabel McNeill House Corrections Services Canada (19 February 2007). Wendy Tso, Closure of Women’s Prison Sparks Charter Challenge Centre for Constitutional Studies. [i] Cited in Dodd v. Canada (Correctional Services of Canada) 2007 ONCA 250 (CanLII) at para. 4.

Via Rail allows kirpans in human rights settlement

After a Sikh passenger was forced to disembark the train because of complaints he was wearing a weapon, Via Rail changed its policy. Via Rail now allows Sikhs passengers to wear kirpans on trains. The previous policy prohibited all weapons from the trains and made no religious exceptions.

This policy change is consistent with the attitude of the Supreme Court of Canada which has “repeatedly ruled against policies denying Sikhs the right to wear a kirpan” since the Canadian Charter of Rights and Freedoms came into force in 1982. In 2006, the Supreme Court held in Multani v. Commission scolaire Marguerite-Bourgeoys that a Sikh student could wear his kirpan to school based on his section 2(a) Charter right of freedom of religion.

The Canada-Afghan Detainee Agreement

In 2007 Amnesty International and the B.C. Civil Liberties Association filed an application in the Federal Court, asking for judicial review of the Canadian Forces’ practice of releasing detainees to Afghan security forces. The groups claimed that the practice exposed the prisoners to torture and human rights violations, and was a breach of Canada’s international obligations and ss. 7 and 12 of its own Charter. One of the primary criticisms of the Canada-Afghanistan Detainee agreement was that it did not allow Canada to check on the detainees after they had been transferred.

Canada’s Department of National Defence missed the initial deadline to respond to the complaint, but later requested an extension to put together the necessary materials to defend the detainee policy. In response, the rights groups sought an injunction ordering a stop to the transfers until the case can be fully heard. The application was scheduled to be heard in Federal Court on May 3.

The morning of the hearing, lawyers for the federal government announced the signing of a new agreement with Afghan officials which gave Canadian government personnel unrestricted access to the detainees after their transfer. The agreement also provides that Afghan authorities will keep the prisoners in a limited number of facilities and that Canadian officials will be informed of any change in the prisoner’s circumstances. In light of the new information the Federal Court judge declared the injunction was no longer an urgent matter and postponed the proceedings.

The issue still remains whether the current agreement and policy will withstand judicial review. Amnesty International and the B.C. Civil Liberties Association claim that Canada’s Charter obligations extend to its armed forces acting overseas, arguing that the Supreme Court of Canada’s 1998 decision in R. v. Cookstands for the proposition that, “the Charter applies to servants of the Canadian government acting on foreign soil, provided the application … will not conflict with the [other country’s] jurisdiction.” The federal government asked the court to throw out the case, arguing that the Charter does not apply to protect detainees against torture by other states. If the Charter does apply, the issue will be whether the detainee policy violates ss. 7 and/or 12 of the Charter, which protect life, liberty and security of the person and the right not to be subject to cruel and unusual punishment, respectively.

Sources

“Canada has new detainee deal, court told” CBC News (3 May 2007). “Defence lets deadline pass over court suit against torture investigation” CBC News (25 March 2007). “DND asks for extension to defend detainee policy; Ministry request three more months to respond to rights groups’ accusations” The Globe and Mail (13 April 2007). Jason Gratl, “Advocating against torture is not sympathy for the enemy” The Lawyers Weekly (11 May 2007) 1. “Ottawa silent as time runs out for response on detainees; Decision not to counter rights challenge make signal intent to make Charter argument” The Globe and Mail (12 April 2007).

Further Readings

“Detainees in Afghanistan must not face torture, says rights groups in a call for a judicial review” Amnesty International (21 February 2007). R. v. Cook, [1998] 2 S.C.R. 597.

[i] Jason Gratl, “Advocating against torture is not sympathy for the enemy” The Lawyers Weekly (11 May 2007) 1.

Denying Same-Sex Pension Benefits Declared Unconstitutional

On March 1, 2007, the Supreme Court of Canada ruled in Canada (Attorney General) v. Hislop that the federal government’s current legislation governing same sex pension benefits was unconstitutional under section 15 of the Charter of Rights and Freedoms. The case centered upon a challenge brought against sections 44(1.1) and 72(2) of the Canada Pension Plan Act (“CPP Act”). The legislation currently only allows Canada Pension Plan (“CPP”) survivor benefits to same-sex partners who are widowed after January 1, 1998. This specific date was chosen by the Liberal government in 2000 when it enacted new laws to extend pension benefits to same-sex couples. The Supreme Court declared that allowing benefits only to same-sex survivors whose partners had died after 1998 was unconstitutional. However, the Court limited benefits to those whose same-sex partners passed away after 1985 (the date that section 15 of the Charter was enacted) and limited back payments to a period of 12 months.

In 1999, the Supreme Court ruled in M. v. H. that the opposite-sex definition of “spouse” in the Ontario Family Law Act was in violation of s. 15(1) of the Charter. Following the decision in M. v. H. the federal government enacted the section of the CPP Act that developed into the focus of the arguments in Hislop. The argument in Hislop was that the newly introduced provisions were under-inclusive and discriminatory because they granted survivor benefits only to those whose spouses died after January 1, 1998. By deeming those individuals whose same-sex partners had died before 1998 as ineligible to receive pension benefits, the discrimination that existed prior to the changes made by Parliament following M. v. H.continued. The Court agreed, yet financial practicalities persuaded a limited remedy that was achievable by the government.

Hislop was launched as a class action in 2003 in Toronto. Leading the class action was noted gay rights George Hislop, who passed away in 2005. Overall, the case included some 1,500 claimants and estates seeking compensation.

Sources

S. Bailey, “Epic fight for gay rights ends with bittersweet win on CPP survivor benefits”, Canadian Press & CBC.ca (1 March 2007). CBC News, “Trial to extend CPP survivor benefits to gays and lesbians opens,” CBC.ca (9 September 2003). CTV.ca News Staff, “Top court limits retroactive survivor benefits” CTV.ca (1 March 2007). Canada (Attorney General) v. Hislop, 2007 SCC 10. M. v. H. [1999] 2 S.C.R. 3. Wikipedia, “George Hislop” Wikipedia, the free encyclopedia (25 February 2007).

Further Reading

CBC News, “Same-sex hearings begin at top court”, CBC.ca (21 October 2004). CBC News, “Top court to rule on expanding same-sex pension benefits” CBC.ca (1 March 2007). CBC News Online, “Indepth: Same-Sex Rights – The Supreme Court decision” CBC.ca (9 December 2004).

K. Onusko, “Same-Sex Marriage”, Centre for Constitutional Studies.

Girl Not Allowed to Play Soccer while Wearing Hijab

On February 25, Asmahan Mansour (an 11 year old girl from Napean, Ontario) was told by a referee in Laval, Quebec, that she could not play soccer while wearing her hijab. Five teams (including Mansour’s) withdrew from the tournament in protest. The Quebec Soccer Federation (QSF) has a ban on headscarves to protect children from accidental strangulation. The referee in Laval, himself a Muslim, said the scarf was a safety concern. Some reports say that Mansour’s team was aware of the rule ahead of time, but did not expect it to be enforced. Mansour has never had any difficulty while playing in Ontario because the Ontario Soccer Association allows headgear, as long as it is safely tucked in and secured.

The International Football Association Board (IFAB) is the branch of Fédération Internationale de Football Association (FIFA) that deals with rules. IFAB discussed the matter at a meeting in England the following week and decided that the existing rules should not be changed. They state that wearing a hijab is covered by FIFA Law 4 which deals with equipment: “A player must not use equipment or wear anything that is dangerous to himself or another player.” Quebec Liberal Leader Jean Charest also commented on the situation, stating that he supports the referee’s decision to order Mansour off the field. It seems both FIFA and Charest share the view that soccer should have universal rules that apply to everyone and it is the referee’s job to determine what is safe.

Minority accommodation is currently a big issue in Quebec and the debate made recent international news after the village of Hérouxville published a code of conduct for new immigrants. In Canada, our principles of multiculturalism and equality (protected by section 15 and 28 of the Charter of Rights and Freedoms) do not permit universal rules that indirectly discriminate unless they can be justified. A rule that prohibits headwear means that Muslim girls who wear the hijab are effectively excluded from organized soccer. Such a rule would likely be open to review under provincial human rights legislation. As a practical matter, FIFA considers certain kinds of headwear safe, and sport hijabs are available. Since FIFA allows safe headgear, there does seem to be a legitimate reason why the QSF should also. But currently, whether a hijab or other headgear is safe seems to be open to a referee’s interpretation of the rules.

Sources “Laws of the Game 2006” FIFA “Muslim girl ejected from tournament for wearing hijab” CBC News (25 February 2007) “Rule against hijab stands: world soccer body” CBC News (03 March 2007) “International soccer body to discuss Quebec hijab ban” CBC News (28 February 2007) “Your View: Muslim girl ejected from tournament for wearing hijab” CBC News (26 February 2007) “Ontario, Quebec differ over soccer head scarf ban” CBC News (26 February 2007) “Muslim Liberals decry Charest’s stand on soccer hijab” CBC News (27 February 2007) Nelson Wyatt, “Rules forbid hijab, says Quebec Soccer Federation” The Toronto Star (26 February 2007) “Criteria set down for goal-line technology experiments” FIFA

Further Reading

Adrienne Arsenault, “Football’s Big Flub: How soccer’s governors dodged the question and punted the hijab issue” CBC News (06 March 2007) “Quebec town adopts controversial social code of conduct for newcomers”

Government’s Use of Surveillance Cameras

“Always under surveillance. You can’t go far in Toronto without being seen on camera”[1]

Toronto police have installed surveillance cameras in areas of the city to deter and fight crime as part of a $2 million pilot project. There has been a surprising public acceptance of the cameras despite the privacy concerns associated with the technology. The Canadian public hasn’t always accepted public surveillance cameras on their streets.

In June 2002, federal privacy commissioner George Radwanski began a lawsuit against the RCMP in British Columbia in an attempt to prevent the installation and operation of surveillance cameras in a Kelowna park [2]. Radwanski argued that the cameras infringed sections 2(d), 6, 7, and 8 of the Canadian Charter of Rights and Freedoms. The court dismissed the lawsuit because Radwanski, as privacy commissioner, did not have the requisite statutory authority. The court did not discuss whether the cameras constituted an infringement of the Charter. However, during that process former Supreme Court Justice Gerard La Forest “issued a legal opinion that general video surveillance for law enforcement purposes – recorded or not – likely infringes upon one’s reasonable expectation of privacy [section 8 of the Charter]. A Charter challenge on that basis could render public video surveillance illegal in Canada, according to a paper by the Canadian Internet Policy and Public Interest Clinic (CIPPIC). That is, if anyone can be found to challenge it.” [1]

Sources

[1] Francine Kopun, “Always under surveillance” The Toronto Star (5 May 2007).

[2] Canada (Privacy Commissioner) v. Canada (Attorney General), 2003 BCSC 862 (CanLII).

Further Reading

“Universal Surveillance: The Long Lens of the Law” CBC News (9 February 2004). “Privacy watchdog sues RCMP over cameras on streets” CBC News (21 June 2002). “Privacy: The Big Picture.” CBC News (20 June 2002).

Websites

Office of the Privacy Commissioner of Canada Canadian Internet Policy and Public Interest Clinic

House of Commons Votes Not to Extend Anti-Terror Provisions

On Tuesday, February 27, 2007, members of the Opposition in the House of Commons voted against the extension of controversial anti-terrorism provisions contained within the Criminal Code of Canada (“the Code”). Struck down were two measures contained within the Anti-Terrorism Act (“ATA”), which had been incorporated into the Code in mid- December 2001. The extension of the provisions, which were scheduled to expire on March 1, 2007, was defeated in a vote of 159 to 124.

The first provision in question before the House of Commons permitted police to arrest terror suspects without warrant and to detain them for up to three days without laying charges. The second provision permitted judges to compel testimony from witnesses in “secret trials” about alleged terror plots.

The federal government initiated the ATA following the terrorist attacks in the United States on September 11, 2001. The goal of the ATA was to create specific criminal offences under the Code stemming from terrorist-related activities. Upon its introduction, then Justice Minister Anne McLellan said the anti-terror measures served three purposes: to deter terrorist organizations, to assist police in their investigation of terrorist activities, and to impose harsher penalties for convicted terrorists. Unlike traditional criminal law, however, the ATA was designed to be preventative rather than punitive in nature. Certain elements of the ATA were introduced as sunset clauses, meaning that after a given amount of time, they would be retired unless revived by a vote in Parliament.

The introduction of the ATA raised several issues surrounding the Charter of Rights and Freedoms. Particularly at issue was the balancing of national security interests against personal freedoms. The Charter guarantees individual rights against interference from the state, unless this interference is justifiable by the government. When the ATA was first read against the Charter in late 2001, legislators felt that anti- terror measures were justifiable in limiting individual liberties for the sake of ensuring public safety and national security. The House of Commons’ recent decision not to extend these two anti-terror provisions, however, may represent a shift towards relaxing stringent state-induced measures aimed at limiting personal freedoms in the name of national security.

Sources

Anti-terrorism Act, S.C. 2001, c. 41. CBC News, “In Depth: Canadian Security – Anti-terrorism Act” CBC.ca (27 February 2007). T. MacCharles, “Opposition cotes down 2 terror law provisions”, The Toronto Star (28 February 2007). T. Bonoguore, “Ottawa puts an end to anti-terror provisions” The Globe & Mail (27 February 2007). CBC News, “MPs vote against extending anti-terrorism measures” CBC.ca (27 February 2007). R. Gillies, “Canada’s House Scraps Terrorism Measures” The Washington Post (28 February 2007). D. Ljunggren, “Canada scraps two anti-terror measures” Reuters Canada (27 February 2007). Further Reading

Department of Justice Canada, “The Anti-terrorism Act: Context and Rationale” Department of Justice Canada (7 February 2007). Department of Justice Canada, “Backgrounder: Highlights of Anti-Terrorism Act” Department of Justice Canada (16 November 2005). Canadian Security Intelligence Service, “Legislation”, Government of Canada, Canadian Security Intelligence Service (5 January 2006).

E. Liu, “Security – Backgrounder and Resources” Centre for Constitutional Studies.

SCC to determine if tax on legal services is unconstitutional

In British Columbia, the Social Service Tax Amendment Act (Act) places a 7% tax on legal services. The late Dugald Christie was a Vancouver lawyer who primarily represented low income persons. In 1997, the government forced Christie to pay the legal services tax on amounts he had not received from his clients. The province collected $3,668 in March followed by $5,349 in December. After the second seizure, Christie was unable to pay his law society fees and stopped working as a lawyer. This left some of his clients without any legal assistance. Christie earned less than $30,000 per year and could not afford to pay his client’s social services tax or pay for the cost of calculating, reporting, and collecting the tax. Though Christie resumed working as a lawyer in 2000, he did not pay the tax because neither he nor his clients could afford the additional cost. Christie challenged the constitutionality of the Act in court. He argued that the additional tax on legal services denies low income persons access to justice. The BC Court of Appeal (BCCA) agreed. The Supreme Court of Canada (SCC) heard the government’s appeal on March 21, but has not yet released a decision.

The BCCA found that “access to justice” is a fundamental right protected by the constitution, even though it is not one of the rights explicitly listed in the Charter. They determined that access to justice is an element of the rule of law, a principle found in the preamble of the Constitution Act, 1982. The rule of law represents a number of concepts: that law and order are necessary for our society; that the law is supreme over both government and individuals; and that our society is maintained by the creation and maintenance of laws.

The BCCA explained that access to justice is a necessary component of the constitution. The constitution protects fundamental rights and provides remedies if these rights are violated. It would be inconceivable to have a constitution that protects fundamental rights and establishes a justice system to protect these rights if individuals had no access to the justice system. A barrier to justice, such as a tax on legal services, can therefore be found unconstitutional and struck down. It will be interesting to see if the SCC agrees.

Sources

Christie v. British Columbia, 2005 BCCA 631 (B.C. Court of Appeal) Christie v. British Columbia, 2006 BCCA 59 (Supplementary Reasons) Christie v. AG of B.C. et al, 2005 BCSC 122 (Supreme Court of B.C.) “Case to scrap tax on legal fees heads to top court” CBC News (21 March 2007) “Landmark Decision Declares BC Tax on Legal Fees Unconstitutional” CBA (9 February 2005) “PST on legal fees creates an unlevel playing field (2004 – Revised 2006)” BC Chamber of Commerce Janice Tibbetts, “Deceased lawyer’s legal battle reaches top court” Canada.com (21 March 2007)

Further Reading

Frits Verhoeven, “Dugald Christie’s Mission” CBA – B.C. (October 2006) “Social Services Tax Update” CBA – B.C. (25 January 2006) “B.C. legal crusader killed in cycling accident” CBC News (01 August 2006) Mark Bourrie, “Christie fought for legal access for the poor” Law Times (14 August 2006)

Court says Constitutional Principles Applied Properly in Extradition of Man to India

In March 2007, The British Columbia Court of Appeal ruled that Malkiat Singh should be extradited to his home country of India for crimes committed in the 1970s. Mr. Singh was convicted of multiple crimes (including murder) and sentenced to life imprisonment in India in 1975. In 1980, he fled to Canada after escaping while on bail. He ended up in the British Columbia Interior and obtained Canadian citizenship in 1985. Mr. Singh married, had two children, operated a successful orchard business, and “by all accounts…led a model life in Canada.”[i] Mr. Singh was apprehended in early 2004 at a roadside check. This recent Court of Appeal decision is the result of an application for appeal from earlier decisions made by the British Columbia Supreme Court and an extradition order granted by the Minister of Justice of Canada.

During the Minister of Justice’s initial hearing, sworn statements were provided which argued that the original testimony more than 30 years prior had been fabricated, and that Mr. Singh had been wrongly convicted. The Minister however stated that it was not his role to evaluate new evidence arising from a previous trial. The Court of Appeal agreed, and upheld the extradition order against Mr. Singh.

Mr. Singh argued before the Court of Appeal that Canada’s Extradition Act as well as its extradition agreement with the government of India was in violation of section 7 of the Charter of Rights and Freedoms. The Court of Appeal disagreed, referring to two key 2006 rulings from the Supreme Court of Canada (United States of America v. Ferras; United States of America v. Latty and United Mexican States v. Ortega; United States of America v. Fiessel). Here the Court held that the Extradition Act did not violate the guarantees to life, liberty, and security of the person enshrined under s. 7 of the Charter (see Featured Court Ruling).

These decisions also formed more stringent rules with respect to handing individuals over to other countries on extradition matters. The Supreme Court held that the protection of liberty found in the Charter was not violated because the Extradition Act is consistent with the need for fair process as required by the principles of fundamental justice. Namely, at a hearing, in order for evidence to be admissible (thus achieving a fair trial) it must meet a certain standard of reliability. The Act also requires that a hearing judge must determine the sufficiency of that evidence when arriving at a decision to demand or refuse an order for extradition.

Mr. Singh will remain in custody while he awaits extradition to India.

Sources

“Canada set to return man to India for 1970s murder” Reuters Canada (16 March 2007). CBC News, “Fugitive killer from India held in B.C. jail” CBC.ca (14 January 2004). CBC News, “Supreme Court ruling narrows grounds for extradition” CBC.ca (21 July 2006). Extradition Act, S.C. 1999, c. 18 Republic of India v. Singh 2007 BCCA 157. United Mexican States v. Ortega; United States of America v. Fiessel, [2006] 2 S.C.R. 120, 2006 SCC 34. United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, 2006 SCC 33

Further Reading

CBC News Online, “Extradition: The longest arm of the law” CBC.ca (27 February 2006). N. S. Garewal, “Indian murder convict held in Canada after 30 years” Tribune News Service (22 January 2004).

[i] Republic of India v. Singh 2007 BCCA 157 at para. 4.