CCLA Rights Watch
La veille sur les
droits et libertés

The Federal government’s latest cuts target women and contradict a commitment to gender equality. Canada Women’s Health Network reports:

“Staff and directors managing the centres and networks add their voices to the growing body of Canadians who are shocked and outraged by the short-sightedness of the federal government cuts to programs, services and the federal civil service. These cuts are in direct contradiction to the pledges regarding gender equality that Canada has made both in international commitments and to Canadians. Women are being hit particularly hard with these cuts, and, because the research being eliminated generated proactive, preventative strategies for health promotion, these cuts will cost everyone in the long term. The end of this work will be most strongly felt by the disadvantaged and the disempowered.”

Further, “Dr. Liz Whynot, Chair of the Board of Directors of the BC Centre of Excellence for Women’s Health expressed her concern that ‘This cut threatens the significant work on women’s health that has been undertaken across the country, and represents an enormous loss of capacity to monitor and improve the health of women in Canada, particularly those who are marginalized.’”

Click here to read the press release by the Canadian Women’s Health network.

According to Bill Frelick and Jennifer Egsgard, the deemed human smuggling bill to “protect” Canada’s immigration system will only harm the most vulnerable and desperate: the victims of human smuggling.

If there are “reasonable grounds to suspect” certain groups of individuals association with human smuggling (including, those who were themselves victims of smuggling), these individuals can be sent to jail up to one full year. This includes children who are 16 and 17 years of age.

“What would constitute a group is not defined and could technically include as few as two people travelling together. Children under age 16 in the group would either be detained with their parents or separated from them and sent to a child welfare agency. Under international law, 16 and 17 year olds are also children, yet Canada would run afoul of its obligations under the Convention on the Rights of the Child by subjecting them to one-year detention.”

“Canadian law already provides the government with adequate procedures to deal with the concerns that C-31 purports to address. Current law allows the government to detain any foreign nationals who have not established their identity, are a flight risk, or might be a danger to the public. An independent decision maker reviews whether detention is reasonable within the first 48 hours. Officials must review detention decisions after a week and then monthly until release or deportation. C-31 would remove this scrutiny while a designated person languishes in detention.”

To read the full Op-Ed in the Toronto Star, click here.

After examining thousands and thousands of case decisions, Professor Sean Rehaag, of Osgoode Hall Law School has uncovered some troubling trends in the results of refugee hearings and overall in the decisionmaking process for refugee claims.

According to the CBC, certain individual adjudicators at the Immigration and Refugee Board (IRB) have displayed a pattern in their deicisionmaking: some are more likely to accept refugees, and others were not. “Rehaag’s analysis shows that Daniel McSweeney approved none of the 127 cases he adjudicated in 2011. He joined the IRB in 2007 and had a yes rate of 42.47 per cent that first year. Then his acceptances decreased.

Another adjudicator, David McBean, approved two of the 108 cases he heard last year. He had rejected all of the 169 cases he handled between 2008 and 2010.”

Although specialization in knowledge to certain regions or types of cases may be a factor contributing to these findings, Professor Rehaag says, “he has taken factors related to specialization into consideration and there are still ‘massive disparities’ in case decisions.” To read the full CBC article, click here.

Despite fervent and widespread opposition by various advocacy groups, NGOs, institutions, and students all over the country, the Conservative government has successfully passed Bill C-10, pushing it quickly through the House of Commons and the Senate.

Bill C-10 creates mandatory minimum sentences for various crimes that previously had no minimum sentences.  Certain crimes without minimum sentences would allow for judges to exercise their discretion in sentencing, allowing them to consider whether the individual facing criminal charges has a criminal history, or has a completely clean record. This would and could effect the sentence, giving judges options in giving sentences – mandatory community service, for example.

Bill C-10 has caused serious concern for several reasons. Statistics show that crime has gone down in the nation. Various studies have shown that imprisonment encourages recidivism, rather than “rehabilitation” – one of the purposes for prisons (look to Section 3 of the Corrections and Conditional Release Act). Those with mental disorders are not properly treated in prison, and there is a significant risk that their their conditions will deterioriate without proper support. Populations who are disproportionately represented in prisons will face even more challenges. The goal of achieving substantive equality, rather than formal equality, will be hampered.

And perhaps, one of the most disconcerting issues to be faced by the country, and the provinces, is the extraordinary costs which will arise from the implementation of Bill C-10: mandatory minimum sentences will mean more prisoners, more prisons, and millions and millions of dollars to keep these prisons operating. This diverts funding from social programs, education, and health care – to name a few.

To read more about this recent development, click here for the Glove and Mail article “Harper’s promise fulfilled as House passes crime bill”.

Click here to read the Canadian Bar Association’s “10 reasons to oppose Bill C-10″.

Click here for a video by GetCOMedia illustrating the problems and potential effects of Bill C-10.

The Toronto Star reports that Elections Canada has received over 31 000 complaints from voters after increased awareness about alleged voter suppression during the last federal election. There was a recent call for individuals to come forward if they have received misleading or harassing phone calls, affecting their right and ability to vote, and exercise their democratic rights.

According to The Star, individuals have reported getting phone calls telling voters to “go to phony voting locations and rudely urging them to vote for particular candidates.”

What is more disconcerting is that Elections Canada – an “independent, non-partisan agency responsible for conducting federal elections and referendums” -  has given no clear answer about whether or not they are investigating these complaints made by individuals about voter suppression.

Elections Canada’s front page provides little indication of these complaints and recent upsurge of concern about this serious potential breach of voter trust.

According to The Star: “In its statement, Elections Canada stressed that the commissioner does not usually confirm or deny the existence of complaints or referrals and does not discuss details of investigations or reviews.”

For Elections Canada’s website, click here.

For The Star article , “Robo-calls: Elections Canada logs 31,000 complaints in robo-call scandal”, click here.

According to the CBC, the Truth and Reconciliation Commission will release a report outlining recommendations for governments and public bodies as it relates to the health and education of and about Aboriginal peoples. The commission was established to research and seek the truth about the effects and impact of the residential school system imposed on Aboriginal people in the 1870s. Their work includes conducting interviews with survivors of residential schools.

A comprehensive understanding of Canadian history should include an understanding of the operation of residential school systems on Aboriginal families, and the impact this has had on Aboriginal communities all throughout Canada.

Aboriginal peoples placed in this schooling system were frequently plucked from their homes against the will of their parents. There, oppressive and rigid rules prevented them from speaking their native tongue or engage in cultural activities. In short, the residential school system worked to assimilate and conform Aboriginal people to Canadian/European ways and identity. As a result, the residential school system has contributed to many social issues still being faced by Aboriginal individuals and communities.

The Commission also recommends the creation of a facility in Nunavut as a place for mental health care and support for Aboriginal individuals who have been affected by residential schools directly, or indirectly through family members who are survivors.

To read more about the Truth and Reconciliation Commission, and the entire list of recommendations in their interim report, click here.

To read the full CBC article, “Report urges residential school history classes”, click here.

Transport Canada has made a regulatory change, requiring border officials to ensure an individual’s appearance matches their gender on their passport. This has caused concern in the trans community, with transsexual and transgendered individuals fearing significant difficulties and suspicion when travelling.

According to NOW Magazine:

“In Ontario, people who change gender can have the sex listed on their driver’s licence changed with a note from their doctor, a progressive policy put in place in 2005 after a human rights complaint. But to alter their passport, and many other legal and government documents, they must first change their birth certificate, and that can only be done after sex reassignment surgery, explains Susan Gapka, chair of the Trans Health Lobby Group.”

Individuals who are awaiting – in a long list – surgery for sex change will also be widely affected.

Passing through security with mismatched documents may “cause suspicion or negative judgment from airport employees…’As a trans person, I’m always worried about how I’m going to be treated. Whenever I show my identification, I’m always worried there will be an incident.’”

The new regulations in Canada do not reflect the fact that an “unspecified” gender is allowed by the International Civil Aviation Organization guidelines.

Recent discussion in Parliament has spurred a motion to eliminate gender as a requirement, in order to eliminate this discrimination against trans people. The motion was raised by MP Olivia Chow, of the NDP. This motion was voted for on Thursday February 9 in the House’s Transport Committee.

Click here to read the full NOW Magazine article, “Flying fix: Trans people fear new rule that gender on passport must match appearance” by Saira Peesker.

Amendments to the constitution are not easy. In fact, procedure for amendments to the constitution vary depend on the nature of the change and the matter in question. Procedures are lengthy and complicated, and the threshold for assent is generally fairly high (majority assent is required). For some, the complexity and detailed requirements for constitutional amendment is a comfort – as it acts to safeguard important pieces of the constitution, namely, the Charter of Rights and Freedoms.

The Globe and Mail reports here that there are renewed and active discussions about constitutional amendment. The article highlights the different attempts over the last decade to make important changes in law and policy, but which have been constrained by the constitution.

Alan Hutchinson, professor at Osgoode Hall Law School has provided an interesting analysis in the Globe and Mail opinion piece he recently wrote, and challenges the notion that the constitution restrains government and political actors from making changes, or achieving their purpose.  According to  Hutchinson, despite all the requirements to make formal changes to the constitution:

“For the most part, change has continued apace while the texts of the Constitution have remained unaltered. The various actors – politicians, government leaders, bureaucrats, judges, and citizens – have gone about their business and been relatively unimpeded by the actual words of the Constitution…The fact is that where there is a political will (i.e., federal and provincial governments agree), there is usually a constitutional way. So, although the courts have interpreted the Constitution to prohibit the formal swapping of powers between federal and provincial governments, ingenious political devices have been used to achieve the same goals.”

Hutchinson also brings attention to the fact that Canada’s constitution is not entirely written down. The “unwritten principles” which are to inform the political system and judiciary are able to evolve. The practicality of this is not only desirable, it is undeniable and more effective.

For Professor Alan Hutchinson’s full article, click here.

For Norman Spector’s Globe and Mail article, “Demands for constitutional reform only builds”, click here.

In a decision released this past Wednesday, the Ontario Court of Appeal has ruled that invasion of privacy is a valid cause of action: a tort of “inclusion upon exclusion”.

In the judgment, Justice Sharpe highlighted the need for the common law to evolve to reflect the realities and risks faced by society. In light of the evolution of technology, information sources and storage, there is a heightened concern relating to the vulnerability and accessibility information.

“It is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion…The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.”

A right to privacy is a longstanding right that has been protected in various ways, and was solidified by the Charter of Rights and Freedoms, according to Justice Winkler.

To be a valid cause of action, the intrusion must be intentional, without lawful justification, and in a method in which a reasonable person would regard as causing distress, humiliation or anguish. However, Justice Winkler emphasizes that the claim will arise only for  significant invasions of privacy.

You can read the full judgment here.

The Toronto Star reports that the Supreme Court of Canada will soon consider the right of common-law spouses to receive alimony and half of property after the relationship has ended. Currently, there is no such right for common-law spouses.

Women’s Legal Education and Action Fund (LEAF), an organization acting as an intervenor in this case, raises the point that equal division of property and support payments may be extremely important where the caregiver of children – most likely a woman – has dedicated most of her time and energy to children, thus becoming dependent and financially disadvantaged.

According to The Star, “the court said excluding common-law couples was a way of respecting their decision to avoid marriage because of the legal obligations that go along with it.”

However, “in fact, North American research over the past decade has shown that most couples who live together are under the mistaken impression they already have the same rights as married couples.”  Further, most couples do not think ahead to the consequences of a break-up when they make living arrangements.

This case will be heard at the Supreme Court of Canada on January 19th 2012.