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Court Orders the Federal Government Not to Move Prisoners,Via Rail

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Court Orders the Federal Government Not to Move Prisoners,Via Rail 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.
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