Class action plaintiffs lose at Nova Scotia’s highest court, ordered to pay costs to government defendants

The Nova Scotia Court of Appeal delivered its decision on costs in a major class action lawsuit last week. The class action, which was first initiated about a decade ago, sought redress for environmental contamination allegedly caused by the governments’ decades long operation of the Sydney Steel plant.

Last year, the provincial and federal governments successfully appealed the class action’s certification. The Nova Scotia Court of Appeal decertified the class action in December 2013. Just last week, the Court of Appeal released its decision respecting costs.

The Court ordered that the plaintiffs, who were unsuccessful on appeal, pay part of the federal and provincial governments’ costs. The costs order amounted to over $700,000.

When asked what the costs award meant for her, Neila MacQueen, a plaintiff in the case, explained “I thought it was intolerable for us to be charged $700,000. We can’t afford it. We would go bankrupt. We would lose our homes.”

Critics worry the award sets a troubling precedent.  Significant cost awards against class action plaintiffs undermine access to justice, critics say.  Those who might otherwise pursue a class action may feel deterred from doing so given the cost implications.

The Court explained at paragraph 56 of its decision that, while it considered access to justice concerns in rendering its decision, these factors must be weighed against others and, in this case, the Court believed that it “would not be fair and reasonable” to order no or nominal costs “given the complexity of the certification hearing, the amount at stake in the litigation and the success of Canada and Nova Scotia.”

Ultimately, Ray Wagner, who acted for the plaintiffs, explained that his law firm will pay the award.  The firm had taken out the equivalent of an insurance policy that, in the event of a defeat, would cover a large portion of the costs.

Nonetheless, Wager explained that, “$733,000 would chill any plaintiff or any lawyer from participating in a class proceeding in this province.”

For more on this story, click here.  To read the Nova Scotia Court of Appeal’s decision, click here.


Impact of Canadian Mining Activities on Latin American Countries Under Scrutiny

This week the Inter American Commission on Human Rights (IACHR) heard the case on the impact of Canadian mining activities on human rights in Latin America. The hearing, which was presented by the Justice and Corporate Accountability Project highlighted the Canadian government’s failure to meet its international obligations to prevent harms related to Canadian mining operations in Latin America and the Caribbean. The evidence comes from a recent report prepared by the Canadian Network on Corporate Accountability (CNCA), which shows that at least 50 people have been killed and some 300 wounded in connection with mining conflicts involving Canadian companies in recent years, for which there has been little to no accountability. Read the rest of this entry »

Suicide, Violence and Over-Crowding Up in UK Prisons

The UK prison system is under fire this month after a comprehensive report was released.

The report details a 69% rise in self-inflicted deaths in prison in just one year, totaling 88. One article cites 125 suicides in 20 months, averaging on 6 suicides a month. The report also details a 14% rise in prisoner-on-prisoner assault, including a 38% rise in serious assault among adult male prisoners. Additionally, it lists a rising problem with drugs.

The report blames overcrowding as the root cause of the problem. The prison system is currently using 99% of “the usable operational capacity”. One group also attributes the problems to massive budget cuts. While the numbers are uncertain, between 27 and 41% of prison jobs have been cut since the election of the Cameron government. Meanwhile, employees who have spoken publicly about the safety implications these job cuts have created are allegedly being reprimanded and may loose their jobs.

For more, see here.

Quebec courts feeling strain of Maple Spring cases

Quebec’s student uprising in the spring and summer of 2012, the Maple Spring, brought new laws and protest response tactics that resulted in hundreds of protestors experiencing fines, detention and arrest. Now, Quebec courts may be feeling the strain.

On October 23, 2014, a municipal court in Montreal dismissed the cases of 75 self-represented litigants who were fined and detained at a protest in April 2012. Judge Gilles Pelletier’s decision rested on the fact that such fines, handed out in large quantities, were creating unreasonable delays in the system. Without a plan provided by the Crown to end the cases within a reasonable time period, Judge Pelletier found the massive resources and time required to process the tickets to be unjustifiable.

The 75 litigants in question had been fined under Montreal bylaw P-6, which was amended during the Maple Spring to allow police to fine protestors wearing masks or people gathering for a protest where the itinerary had not been provided to police.

P-6 continues to be a controversial. In August 2014, the Quebec Superior Court authorized eight class action law suits against the City of Montreal involving police response to protests. The class in question includes over 1600 protestors who were ticketed and claim to have been mistreated by police.

First Nations’ discrimination claim reaching conclusion after 7 years

Arguments on a longstanding human rights complaint, which allege unequal treatment of First Nations children by the Government of Canada, will reach its conclusion in the coming week. First Nations Child and Family Caring Society and Assembly of First Nations filed a case at the Canadian Human Rights Tribunal on February 26th, 2007. The parties began closing arguments over seven years later on October 20th, 2014.

The case alleges that the Federal government does not adequately fund child-welfare services on reserves.  The Winnipeg Free Press reports that services for First Nations children on reserves received 22 per cent less funding than services provided by Provincial governments to children off reserve. Cindy Blackstock, head of the First Nations Child and Family Caring Society, states in the Children and Youth Services Review that the effect of inadequate funding on First Nations children is amplified by their disproportionate representation as recipients of child-welfare services, and further inequity in other critical social services. The Globe and Mail reports that there was an abundance of evidence of underfunding produced throughout the hearing. Whereas child-welfare generally falls under Provincial authority according to the Constitution Act, 1867, the Federal government is responsible for services for First Nations children on reserves. The claimants widely condemned the Federal government for failing to fulfill its obligations.

According to the Winnipeg Free Press, the case experienced serious delays due to questions of jurisdiction. In addition to arguments about jurisdiction, Blackstock said in 2010 that the Federal government contested the claim on the basis that the current funding plan is not discriminatory. The Federal government argued that in order to prove the plan is discriminatory, the claimants must show a differential treatment between claimants’ experience on reserves and the experience of First Nations children on other reserves — the comparison should not be made between First Nations children on reserves and children off reserves, as the claimants argued. Since the Provincial government is responsible for child-welfare services for children that do not reside on reserves, any comparison to the Provincial plan is irrelevant for the purpose of establishing discrimination. Therefore, according to the arguments of the Federal government, since First Nations children receive equally on all reserves, there is no discrimination.

The Globe and Mail reports that the arguments will close on October 24, with a decision expected in 2015. A livestream of the closing arguments can be found here.


UK to Increase Maximum Sentence for Internet Trolls

The UK government announced today that it will increase the maximum prison sentence for internet trolls to two years, up from six months. It will also increase the statute of limitations for criminal prosecution from six months from the day of commission to three years. This is in conjunction with the creation of a specific offence to criminalize ‘revenge porn’.

The offence is described as “cover[ing] sending a letter, electronic communication or article of any description to another person, which is in nature, or which conveys a message which is, indecent or grossly offensive, or conveys a threat or false information, with the purpose of causing distress or anxiety to the recipient or to any other person to whom it is intended that its contents should be communicated.”

Chris Grayling, the Minister of Justice, has described the initiative as “a stand against a baying cyber-mob”. Neither Mr Grayling nor the official press release make any comment about the underlying discrimination found in many instances of trolling.

This announcement was made just days after a high profile trolling case was made public. The daughter of Judy Finnegan, a well-known TV presenter, had receive rape threats online because of her mother’s on-air comments regarding a convicted rapists and football player. Finnegan said that Ched Evans should be welcomed back to professional sports because the rape “wasn’t violent and the victim was drunk”. Her comments solicited wide criticisms and she has since apologized, though her daughter was consequently the target of internet trolling.

For more information, see here.

Vancouver Police Wear Body-Mounted Cameras For Oppenheimer Park Evictions

The Vancouver Police Department (VPD) equipped officers with wearable cameras to encourage transparency and “prevent people from acting in a difficult or violent manner” during Wednesday’s Oppenheimer Park evictions, reports the CBC. The VPD announced the body-mounted camera program as a pilot project in late 2013. The project is associated with the force’s Evidence Gathering Team, and similar initiatives have already been used on a trial basis in Victoria, Edmonton, Toronto, and select US cities.

The original camp at Oppenheimer Park came into existence in July, largely as a reaction to Vancouver’s lack of affordable housing. Over the past months, the site became a home for the city’s displaced and marginalized people, as well as a safe community for those facing issues including housing and addiction. Pivot Legal Society extensively interviewed and provided legal assistance to those living in the park. According to Pivot, many of the campers did not identify with sleeping in the park as part of a protest, but rather as one of the only means of survival available to them amidst a lack of response from the City in regards to accessible housing. On October 8, 2014 the B.C. Supreme Court approved the City of Vancouver’s injunction to evict the homeless campers from Oppenheimer Park. The eviction deadline came into effect on October 15 at 10 p.m. Despite no specific information suggesting there would be violence or other problems at the camp, the VPD equipped eight officers with chest-mounted GoPro cameras for the eviction. The evening progressed peacefully, with many campers dispersing, while those with no alternative housing options remained at the site.

While the force already uses handheld and pole-mounted cameras, the additional equipment is meant to enhance safety and encourage people to be better behaved with the knowledge that they are being recorded, according to VPD Chief Constable Jim Chu. The Vancouver Sun reports that “police departments have argued in favour of cameras to protect officers against unfounded allegations of abuse, insisting grainy cellphone videos that find their way onto YouTube rarely tell the whole story.” The use of cameras is increasingly regarded as a way to protect both the public and the police. “There’s an argument that it will keep both sides more civil, so the police are going to try harder to use tactical communication skills and will be even less likely to use force, and also the public may be a little more responsive, more co-operative,” said Rick Parent, a former police officer and current professor at Simon Fraser University’s police studies program.

However, this attempt at police transparency has received a fair share of criticism from those worried that not all interactions between police and the public will benefit from this type of surveillance. Before Wednesday’s eviction, D.J. Larkin, a lawyer with Pivot Legal society expressed concern about bringing cameras into Oppenheimer Park. Larkin explained that filming the “very, very emotional and very destabilizing environment” of people “who really don’t have other safe options and who really can’t access the shelter system” could escalate the situation. In another report by the Globe and Mail, Larkin also brought attention to the fact that the decision to use body-mounted cameras was turning a housing issue into a police enforcement issue, thus further diluting the concerns and realities of individuals residing in Oppenheimer Park. Josh Paterson, executive director of the B.C. Civil Liberties Association expressed his concerns about the body-mounted cameras to the CBC. Paterson’s comments echo the unease of many who feel that the balance between police interests and privacy rights of citizens should not be tipped too far in favour of the former. Paterson stated that if opting to use the technology, the VPD must adopt comprehensive policies to ensure it is not abused. Paterson added that the decision to use the body-mounted cameras sporadically or temporarily does not excuse the lack of thorough protocols.

The VPD does not have plans to introduce body-mounted cameras to all officers or for a broader range of patrol-related activities, due to cost concerns and information storage limitations. Nevertheless, Wednesday’s use of the technology raises a multitude of questions as to if, when, and how its use could be reconciled with respecting the privacy and dignity of citizens, especially in times of vulnerability and distress.


UK to Criminalize “Revenge Porn”

UK Justice Secretary Chris Grayling announced a new law to explicitly make “revenge porn” illegal. The Crown Prosecution Service had announced that current legislation already criminalized it with a maximum sentence of 14 years. The new law will explicitly penalize distributors of digital or physical “photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public”. The maximum sentence is 2 years imprisonment.

While revenge porn is usually characterized by spurned ex-lovers distributing pornographic images, many victims report that the only means that their photos could have been accessed was through computer hacking. It is unclear whether exes and hackers will be treated similarly under the law.

Criminalized distribution will not be limited to specialized revenge porn sites, but also to Twitter, Facebook, SMS and email. Additionally, if it is deemed a sexual offence, distributors could face up to 14 years in jail.

For more information, see here.

Le massacre de Beslan à la CEDH

Le 14 Octobre la Cour européenne des droits de l’homme s’est penchée sur les évènements entourant la prise d’otage de Beslan dans le Caucase russe en 2004. Les griefs de plus de 400 ressortissants russes, parmi lesquels l’on compte de nombreuses victimes, furent présentés devant la Cour qui tâchera d’éclaircir les zones d’ombre entourant le drame. La Cour tentera aussi d’établir la responsabilité du gouvernement russe, qui s’est défendu dans la matinée par le biais d’envoyés gouvernementaux.

Rappelons rapidement l’historique du drame. Le 1er Septembre 2004, des séparatistes tchétchènes armés prennent des centaines d’enfants et d’adultes en otage dans une école de la municipalité de Beslan, en Ossétie du nord [Russie]. Une vingtaine d’adultes sont tués dans l’opération. Après trois jours de pourparlers, le 3 septembre 2004, une explosion dans l’école cause la panique parmi les otages. Un affrontement armé chaotique des ravisseurs et des forces de l’ordre s’ensuit, dans laquelle il est allégué notamment que des chars d’assaults et des lances flammes furent utilisé par l’armée russe. Le bilan de l’échauffourée : 331 civils tués, dont 186 enfants.

447 ressortissants russes, anciens otages rescapés ou proches des victimes, demandent donc à la Cour d’éclaircir le rôle de Moscou dans les explosions initiales du 3 septembre ayant déclenché la bataille ainsi que dans sa réponse qu’ils qualifient de disproportionnée. Ce dernier a toujours blâmer les séparatistes tchétchènes pour l’explosion initiale, mais des preuves documentées des requérants pointent le doigt vers une entité extérieure de l’école.

La Cour à ajournée l’audience et est en délibérée depuis la fin de matinée du 14 Octobre. Elle se prononcera sur la recevabilité des plaintes ainsi que le fond de l’affaire à une date ultérieure non fixée.

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DOJ Lawyer Says “Miscarriage of Justice” May Have Occurred in Assoun case

Glen Eugene Assoun was convicted in 1999 of second-degree murder for the killing of Brenda Way, his ex girlfriend, who was stabbed to death and found in a Dartmouth, NS apartment.

After appealing the conviction several times and exhausting all appeal options, his case arrived at the desk of Mark Green, a lawyer with the Federal Justice Department’s Criminal Conviction Review Group who reviews cases where a wrongful conviction is alleged. After a preliminary report into the case, Green has found that there “may be a reasonable basis” to conclude that there was a miscarriage of justice.

Assoun received an automatic life sentence and must serve 18 ½ years before he can apply for parole. Assoun had always maintained his innocence, from trial through a series of appeals. Upon exhausting his appeal chances, his last attempt was to apply to the Justice Department’s Criminal Conviction Review Group, under section 696.1 of the Criminal Code of Canada, which provides for a chance of reassessment where a miscarriage of justice is alleged.

Having deemed that there “may be a reasonable basis” to conclude a miscarriage of justice, Assoun’s case now moves into an investigative phase. Assoun, meanwhile, has applied for interim release from prison, which the Public Prosecution Service will oppose. That application is set to be heard in court this fall.

For the full story, click HERE.


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