CCLA Rights Watch
La veille sur les
droits et libertés

Yesterday, during International Women’s Day, local women’s rights groups and their supporters voiced concerns and outrage over a new give-away contest held by Halifax radio station, Q104. The contest, dubbed “The Male is in the Czech”, purports to be giving away a “mail-order bride”. Winners will reportedly be flown to Prague, Czech Republic, to date a “bevy of Czech beauties”. Opponents of the contest note that the “mail-order bride” industry has connections to human trafficking, a reputation for oppression of and extreme violence against women, along with ties to pornography.

In an interview with Chronicle Herald reporter Laura Warren, Laurie Ehler, executive director of Bryrony House, a shelter for abused women and children in Halifax, said of the contest: “It’s quite deplorable… It’s unfortunate that the station is not understanding the bigger systemic issue that this has.”

For a full report on the protests along with further information on the contest itself, please see the Chronicle Herald article by Laura Warren  here.

Despite recent amendments to the Nova Scotia Human Rights Commission, claimants are still having difficulty navigating the system. In a decision by the Nova Scotia Supreme Court, Justice McDougall found that the Commission breached its duty of procedural fairness by denying a claimant the right to reply to a submission disputing his request for an extension of time.

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The Nova Scotia Crown is asking the Supreme Court of Canada to appeal a stay of charges handed down by the Nova Scotia Court of Appeal in the prosecution of Fenwick MacIntosh. During two trials held in 2010 and 2011, MacIntosh was convicted of 17 counts of indecent assault and gross indecency involving four boys, dating back to the 1970s. The trials were the result of prolonged police investigations and an extradition order from India. In December, the Nova Scotia Court of Appeal overturned MacIntosh’s convictions, finding the accused’s right to be tried in a reasonable time had been violated. The Court also found that the trial judge misapprehended evidence and erred in his application of the law. As such, the Court stayed all charges. Citing issues of public importance, the Nova Scotia Public Prosecution Service plans to apply for leave to appeal this decision to the SCC on February 6, 2012.

The decision of the Nova Scotia Court of Appeal can be found here and a public statement from the Public Prosecution Service regarding the appeal can be found here

The Nova Scotia Court of Appeal has recently heard a case regarding the duties of an arresting officer under s.10(b) of the Charter. In 2010, Mr. MacGregor was charged under s.253(1) of the Criminal Code for allegedly driving while under the influence of alcohol. When the arresting officer read MacGregor his s.10(b) right to obtain counsel, MacGregor answered “Not right now, thank you.” The officer then told MacGregor that if he changed his mind anytime throughout the night, to let him or another officer know and a lawyer would be contacted. MacGregor replied “yeah”, and the two proceeded to a police station.

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Nova Scotia Labour Standards has released a discussion paper calling for input on regulations related to temporary foreign workers in the province. The regulations will be used in concert with the Workers Recruitment and Protection Act, which amended the Labour Standards Code.  The WRPA itself sets out a number of protections aimed at preventing employers or recruiters from taking advantage of foreign workers, such as prohibitions on recruitment fees or confiscation of personal property (like passports). The discussion paper proposes regulations for recruiters and employers of foreign workers, specifically focusing on categorization of foreign workers, recruiter licensing, wages and benefits, employer registration, and administrative matters.

One of the main regulations will see that many protections envisioned under the WRPA will only apply to more vulnerable foreign workers; workers who do not require a work permit in Canada or those who do not require a Labour Market Opinion (LMO) will be excluded from the scheme. The discussion paper seems to suggest that the reason for this exemption is that workers not requiring LMOs are either higher skilled workers or those working in the “open market” with more employment opportunities available to them. It should be noted, however, that in characterizing these “lower vulnerability groups”, the province has included some rather highly vulnerable people, such as people seeking refugee status and destitute students (neither of whom require LMOs).

The proposed regulations also include provisions for allowing employers to reduce a foreign worker’s benefits or wages if certain conditions occur. These conditions include: changes in provincial laws or collective agreements; unforeseeable or unavoidable changes in economic conditions directly affecting the employer (as long as this is not disproportionately directed at foreign workers); and other circumstances involving errors or inadvertent misinterpretations. The discussion paper does, however, include a statement that these reductions must be lawful and cannot affect foreign workers significantly more than domestic workers (although it is not immediately apparent what would constitute “significantly more”).

Finally, it is also worth noting that the proposed regulations will seek to tighten restrictions on who may qualify as a licensed foreign worker recruiter. Under the proposals, a person must either be an immigration consultant of the Canada Regulatory Council, or a member of the Nova Scotia Barrister’s Society or an equivalent society in the remaining common law provinces or Quebec. These restrictions reflect recent changes to federal legislation which regulate paid immigration recruiters.

The entire discussion paper can be found here. If you wish to submit comments or concerns to Nova Scotia Labour Standards, which will be considered in drafting the new regulations, you can email Labour Standards at  labrstd@gov.ns.ca. The discussion paper also includes further contact information. All comments must be received by February 3, 2012 to be considered.

The Nova Scotia Human Rights Commission has changed its procedure for resolving human rights disputes. As of January 1, 2012, the NS HRC has adopted a restorative justice approach that emphasizes the need to reconcile the relationship between complainants and respondents,while reducing the time it takes to resolve a dispute (which the commission notes could have taken up to two years before the recent amendments).

A hallmark of the NS HRC’s new procedure is that most disputes will now be dealt with through”Resolution Conferences”. In an overview of the new changes, the Commission summarizes four main features of these conferences:

(1) The conferences will bring parties together when a complaint is made including, at times, other members of the community;

(2) All participants will share their perspectives on the dispute;

(3) Generally, participants will be helped to create their own solution to the complaint; and

(4) If an agreement cannot be reach from the conference, information gained therein will be used to make a recommendation to the Commissioner, who can dismiss the complaint or send it to the Board of Inquiry.

Another feature of the new procedure is an increased concern for preventing systemic discrimination.When Commission staff believe that a complaint involves potential systemic discrimination, they will present the matter to an Alternative Investigation Team who will, in turn, decide upon the proper approach to investigate the complaint. Ultimately, this represents the NS HRC’s recognition of the importance of combatting systemic discrimination, along with the increased human/financial resources that may be required to complete that task.

An overview of all changes to the NS HRC’s dispute resolution procedure can be found here.

The Nova Scotia Court of Appeal has reduced the sentence of a man with permanent residency status in order to reflect the unduly harsh deportation consequences that accompany convictions for “serious criminality”. In January 2010, Mr. Jamieson was arrested for trafficking cocaine and ecstasy contrary to s.5(1) of the Controlled Drugs and Substance Act. Mr. Jamieson pleaded guilty to the charges and, in a joint submission accepted by the Nova Scotia Provincial Court, was sentenced to two years’ imprisonment – a federal sentence.

Unbeknownst to the trial judge, however, Mr. Jamieson held permanent residency status and had never applied for citizenship. Therefore, as a result of the Immigration and Refugee Protection Act, the convictions included a deportation order to his home country, Jamaica. Furthermore, since the conviction carried a federal sentence, it constituted one of “serious criminality”; by virtue of ss.36(1) and 64(1) of the Immigration and Refugee Protection Act, such a conviction then operated to make Mr. Jamieson inadmissible into Canada and denied him the right to appeal his deportation.

On appeal, Saunders JA for the NSCA recognized the severity of denying a person the right to appeal a deportation order. The Court went on to find that if the trial judge had been made aware of Mr. Jamieson’s permanent residency status, the immigration consequences of his conviction would have been an important factor to consider during sentencing. As such, the court reduced Mr. Jamieson’s sentence by two days, changing it from a federal sentence to a provincial one and, therefore, stripping it of the “serious criminality” label. In doing so, the court allowed Mr. Jamieson to exercise his immigration appeal rights,  relieving him from “such an unintended and disproportionately severe collateral sanction”. The full decision is reported here.

Two recent decisions from the Nova Scotia Provincial Court question police authority to confiscate and download the contents of an accused’s cellphone incident to an arrest. In R v Hiscoe and R v Dorey, the accuseds had their cellphones seized by police after both were arrested on suspicion of drug trafficking. Following Hiscoe’s arrest, the police viewed the most recent text messages on his phone, transcribing them shortly after. In both cases, the police later sent the cellphones to a crime unit to have their entire contents downloaded  and analyzed (“data dumping”). In separate applications to the court, Hiscoe and Dorey challenged the decision of the RCMP to seize their phones under s.8 of the Charter. Summarizing his reasons for both decisions in Hiscoe, Justice Tuft held that viewing and transcribing a recent text message was reasonable in the circumstances and, therefore, viewing Hiscoe’s most recent messages was lawful. However, Justice Tuft went on to find that it was not reasonable for the police to download the entire contents of a cellphone without a warrant. As such, the police violated Hiscoe and Dorey’s s.8 rights by data dumping their phones. Finding the conduct threatening to the administration of justice, the court subsequently excluded evidence obtained from the phones under s.24(2) of the Charter (apart from Hiscoe’s recent messages).

The full decision for R v Hiscoe can be found here and the full decision for R v Dorey here

The Nova Scotia Safer Communities and Neighbourhoods Act is being challenged in the Nova Scotia Court of Appeal. Under the act, a person can be evicted from their home or have their utilities cut if it appears as though their property is being put to a “habitual” (illegal) purpose which adversely affects their neighbourhood. There is no need to secure a conviction before evicting a person, and the act takes precedent over the Residential Tenancies Act wherever the two conflict.

The challenge is an appeal by a Cape Breton couple who were evicted from their home after a judge determined their property was being used as a drug house. The constitutionality of the act does not seem to be in question, but the couple is attempting to redefine the criteria for ordering evictions. Although the Court of Appeal has yet to release its decision, a report on the case can be found here.

On November 4, in a move to protect children with serious disabilities, the Nova Scotia Legislature heard the first reading of Bill 75, An Act to Support Students with Diabetes and Other Life-Threatening Illnesses. The bill is a private member’s bill introduced by the Honourable Karen Casey, MLA for Colchester North. Essentially, it is an amendment to the Education Act which requires the Minister of Education to set up and oversee life-threatening illness policies throughout schools in Nova Scotia. Under the proposed legislation, these policies will increase access to emergency procedures, allowing teachers to administer some medications while insulating them from liability for actions performed in good faith. The bill also places an obligation on parents to provide the principal of their child’s school with up-to-date medical information detailing their child’s illness(es) and prescription medications. While the medical information will likely be subject to the same privacy regulations for school records generally, there is no specific provision in the bill that outlines the scope of information required, restrictions on dissemination, or if particularly sensitive information can be withheld. A copy of the bill can be found here.