Bill C-36

In December 2013, the Supreme Court of Canada struck down the prostitution laws because they violated prostitutes’ right to safety. The Supreme Court proposed that Parliament bring in a new law within a year. Six months later in June, Bill C-36 was introduced by Justice Minister Peter Mackay.

Earlier in September, the National Post reported that: “Justice Minister Peter Mackay defended his prostitution bill Tuesday as a balanced policy that criminalizes the purchase of sex but gives prostitutes “immunity” from prosecution so they can ply their trade more safely”

In summary, the Bill creates an offence that prohibits purchasing sexual services or communicating these services in any place. The Bill criminalizes the buying of sex for consideration. The penalties include up to five years of incarceration and minimum, cash fines that go up after a first offence. Sex workers also face penalties under the Bill. For example, it would be illegal to discuss the sale of sex in certain areas and it would also be illegal for a person to get a “material benefit” from the sale of sexual services by anyone other than themselves. The Bill creates an offence that prohibits the advertisement of sexual services offered for sale and authorizes the courts to order the seizure of materials containing such advertisements and their removal from the internet. The Bill also expands the definition of a weapon to include: “any thing used, designed to be used or intended for use in binding or tying up a person against their will”.

On October 2nd, the National Post reported that in response to the Senate hearing on the Bill, former dominatrix Terri-Jean Bedford threatened to reveal the names of politicians she claims to have employed sex workers.  The opposition parties opposed the Bill and there have been many critics of the proposed Criminal Code amendments since.

The government has allegedly pledged $20 million over five years in order to help sex workers to get out of the trade. However, Parliament has not specified how this money is to be spent.

Bill C-36 can be found here on the Parliament of Canada website.

 

SCC Asked to Block Romeo Phillion’s Wrongful Prosecution Lawsuit

This past October 2nd was the first annual Wrongful Conviction Day. Spearheaded by the Association in Defence of the Wrongfully Convicted (AIDWYC), the day aims to draw attention to wrongful convictions by raising public awareness. Not coincidentally, one of the worst cases of a wrongful conviction in Canada is currently making national headlines. Romeo Phillion, the longest serving Canadian inmate to have a murder conviction overturned, now faces a new challenge in his wrongful prosecution lawsuit.

The Ottawa Police Service and the Ontario Ministry of the Attorney General are applying to the Supreme Court to block Phillion’s lawsuit for prosecutorial misconduct. Phillion’s lawyer, David Robins, claims that this move is simply an attempt to delay proceedings in the hope that Phillion, now in his mid-70′s, passes away while the suit is appealed.

Leave has not yet been granted to hear the appeal, however, AIDWYC and other supporters and interveners are in stark opposition to the move, and believe that Phillion’s lawsuit should be heard on its merits alone.

Phillion’s case hilights one of the most common causes of wrongful convictions: false confessions. In 1972, he was convicted of second degree murder in the death of Ottawa firefighter Leopold Roy, based on a confession that he recanted almost immediately. He was sentenced to life imprisonment, and astonishingly, refused to seek parole as he believed that would amount to an admission of guilt. He ultimately spent 31 years in prison.

After years of attempted appeals, the Federal Government finally referred the case to the Ontario Court of Appeal in 2009, where his conviction was quashed and a new trial ordered. As part of its review, the Court found that police had initially verified an alibi that proved Phillion’s innocence. However, this was never disclosed to the defence, as some investigators at the time felt that it was likely untrue. Following that decision, the Crown withdrew the murder charge on the basis that too much time had passed since the original trial, and there would be no reasonable prospect of conviction.

Read the rest of this entry »

Australia proposes new anti-terror laws

This past week, the administration of Prime Minister Tony Abbott has proposed new anti-terror legislation which will

require Australians returning from certain conflict zones to prove they hadn’t joined militant groups; expand police powers to arrest and detain suspects, secretly seize passports and search properties without advance warning; and allow intelligence agencies greater scope to access online communications.

These proposals follow a supposed plot by IS sympathizers to behead a randomly-selected Australian and a knife attack on police officers by an alleged Islamic State sympathizer. In response, Prime Minister Tony Abbott has said that the “delicate balance” between freedom and security at home “may have to shift” in light of a heightened terror risk.

Read more here.

Supreme Court Allows “Mr. Big” Evidence in R. v. Mack

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If notions of hunger-satisfying, peanutty-chocolate candy bars jump into your head when “Mr. Big” is mentioned, sadly, you will continue to go hungry. You may even lose your appetite. In the legal world, “Mr. Big” operations are undercover police stings that involve police posing as criminals in an attempt to gain trust from a suspect and ultimately extract a confession. This is commonly done by escalating a series of fictitious crimes or scenarios with the suspect, and then enticing the suspect to describe information that they may have about the real crime. Yes, “Mr. Big” stings often result in a lead that produces evidence that can result in charges and in most cases (over 95%), a conviction. But, at what cost? Several studies, inquiries, and reports cite these operations as unsavoury, involving dangerous police tactics that often can lead to false confessions and ultimately wrongful convictions (see the watershed 2011 Report of the Federal/ Provincial/ Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions, entitled The Path to Justice: Preventing Wrongful Convictions).

On Friday, September 26, 2014, the Supreme Court of Canada gave its ruling in R. v. Mack, 2014 SCC 58. This was the first “Mr. Big” case ruled upon by the SCC since R. v. Hart, 2014 SCC 52, from earlier this past summer, where the Court held that confessions obtained through “Mr. Big” investigations are presumptively inadmissible as evidence. Mack concerned a confession made by Dax Richard Mack, who admitted to undercover officers working a “Mr. Big” operation that he murdered his roommate and burned the body. That information led police to a firepit, where they located bone and teeth fragments that were later identified as belonging to the victim. As a result, Mack was arrested and charged with first degree murder. He was found guilty at trial, appealed, and had that appeal dismissed by the Alberta Court of Appeal.  Read the rest of this entry »

Deferring away Liberty: Prisoner’s rights and the difficulty in using the Charter

Case law focusing on prisoner’s rights has created substantive rights for inmates while they remain behind bars.  The advent of the Charter undoubtedly impacted prisoner’s rights jurisprudence, but to what extent? One could probably create a list of the rights that prisoner’s have gained post-Charter, but there remains a reliance on pre-Charter jurisprudence to establish the necessity of including the protection of the civil and human rights of prisoner’s.

It is my hope that bringing old case law into contemporary discussions on prisoner’s rights works to establish the rigidity of the Court’s position on it’s dedication to protecting rights for prisoners but also to contextualize the development of deference to correctional authorities which stems from a pre-Charter era.  This is significant because the Charter, if given the weight it deserves, should be a match against deference. Read the rest of this entry »

On Substantive Liberty: Challenging Prolonged Administrative Segregation

For many of us, it is difficult to conceive of what really happens when you go to jail.  Many people have never seen the inside of a cell, let alone understand what it means to be placed there without human contact for long periods of time. What we can all agree on is that to be treated this way would be awful.  In some ways, this understanding acts as a deterrent to ‘bad behaviour’.  This oversimplification is meant to draw attention to the numerous underlying assumptions we have about criminal behavior, about mentally sound reactions to deterrence, and about solitary confinement as a viable penal option.

In December of 2013, a coroner’s inquest jury declared the death of 19 year old, Ashley Smith a homicide.  The announcement reinvigorated a discussion on the use of administrative segregation also known as solitary confinement in Canadian correctional institutions focusing especially on its impact with inmates struggling with mental health issues. Ms. Smith’s treatment while incarcerated is particularly stunning given international condemnation of the practice. Read the rest of this entry »

UK campaigners lose ‘right to die’ case

BBC News UK reports that campaigners for the right to die have lost their appeal at the UK Supreme Court. However, there was a positive step that arose from the outcome- the judges said that Parliament should act on this now. The Justices ruled against Paul Lamb (who was paralyzed in a road crash) and Jane Nicklinson (the widow of Tony Nicklinson, who had locked-in syndrome) by seven to two. They were advocating for the law to change in order to allow doctors to assist patients to die. A man named Martin lost his attempt to have the current prosecution guidance on assisted suicide clarified.

However, five justices concluded that they had the power to declare the current law breaches the right to a private life. Had the court made this decision, the government would be forced to enact new legislation to amend the current law on assisted suicide. A majority of the judges concluded that the question they were being asked to address included moral judgments as opposed to points of law. Instead, they said the issue must be addressed by a democratically-elected Parliament.  Nine justices were required to determine whether a prohibition on assisted suicide was compatible with the right to respect for private and family life under the European convention on Human Rights. Five decided that the court did have the constitutional authority to make a declaration, and two of the five said they would have done so.

Mr. Lamb and Mrs. Nicklinson felt that the conclusions were a positive step in the fight for change. Andrew Copson, Chief executive of the British Humanist Association, which supported the campaigners, said: “It is clear that the Supreme Court went as far as it was able in urging Parliament to take action on the vital issue of assisted dying.”

 

Drop minor convictions from criminal record checks, UK Supreme Court rules

BBC News UK reports a monumental Supreme Court decision, which ruled that all police cautions and minor convictions should not be required to be disclosed in criminal record checks. According to the judges, any requirement to do so would conflict with human rights legislation in England and Whales. This ruling affects those people applying for jobs working with the vulnerable sector or children.

The decision upholds a Court of Appeal ruling, which involved the case of a job applicant who was forced to reveal police cautions he received at age 11. He was supported by Liberty, a human rights advocacy group, which claimed the Supreme Court’s judgment was “an injection of proportionality into our criminal records system”.

The Rehabilitation of Offender Act 1974 provides that after a period, a person’s criminal convictions are spent and therefore do not need to be disclosed to a perspective employer. A caution is spent as soon as it is given. However, prior to the successful Court of Appeal ruling last year, there was a regime where for certain jobs, including those working with the vulnerable sector and children, all convictions and cautions which would otherwise have been spent were disclosed. The Supreme Court ruling means that some past cautions and convictions remain protected and private, and have no role in a person’s job application. The judges said that the disclosures in the cases presented to them were not necessary in a democratic society and were not based on any rational assessment of risk.

 

Op Ed: The Right to a Fair Trial is a Fundamental Human Right

When I came to law school three years ago, I had no idea what a security certificate was. I first learned about this regime in my immigration and refugee law class. I remember thinking that I must be missing something because it couldn’t be possible that this existed in Canada – the right to a fair trial is a fundamental human right. On Wednesday, the Supreme Court upheld the security certificate regime as constitutional.

Security certificates allow the government to deport or detain persons indefinitely that are deemed to be a risk to the security of Canada. The named person need not be charged with a crime. In a criminal trial, the accused must be proven guilty beyond a reasonable doubt. Under the security certificate regime, there must be reasonable grounds to believe that the person is a risk to the security of Canada. It is also easier for the government to use secret evidence in a security certificate proceeding than a criminal trial (see paras 65 – 66 of the Harkat decision).  The security certificate regime is not a criminal trial, but the consequences of each are the same: a deprivation of liberty, and, in the case of named persons subject to security certificates, the possibility of deportation to a country where there is a risk of torture or death. Like a criminal trial, the security certificate regime involves the same fundamental human right – the right to a fair trial.

What I find most striking is the contrast to the Supreme Court’s discussion of the right to a fair trial in Harkat compared to criminal law cases I have read in law school. For example, in R v NS, when considering the right to a fair trial for an accused in a criminal proceeding, Chief Justice McLachlin wrote:

The right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble.  No less is at stake than an individual’s liberty — his right to live in freedom unless the state proves beyond a reasonable doubt that he committed a crime meriting imprisonment.  This is of critical importance not only to the individual on trial, but to public confidence in the justice system (para 38).

In contrast to NS, the Harkat decision is missing any meaningful discussion of the right at stake for named persons – the deprivation of liberty – and of the fundamental importance of guaranteeing the right to a fair trial for the rule of law in Canada. The Court mentions no international legal obligations. In fact, the Supreme Court stated that Mr. Harkat has “benefited from a fair process” (para 111). Mr. Harkat’s “fair process” included the use of summaries of destroyed intercepted phone conversations that were only ever disclosed to Mr. Harkat in an abridged form (paras 94 – 99) and that were destroyed as a result of “unacceptable negligence” by the Minister (para 94).

The Supreme Court ruled that the security certificate system is not perfect, but it is fair (para 110). However, making a process fairer, with the introduction of special advocates, does not necessarily make it fair. On the Supreme Court’s focus on the judge’s discretion to ensure that named persons are given a fair process, Amnesty International said, “when it comes to protecting fundamental rights, including something as essential as fair trial rights, discretion is simply never good enough.”

Most Canadians may not be personally affected by security certificates, but this is an issue all Canadians should care about. The Charter of Rights and Freedoms can only be meaningful if the rights guaranteed by it are meaningful for all. This includes suspected terrorists. The Criminal Code contains terrorist offences, which these men could be charged with.

Recently, I went to the premiere of Secret Trial 5 at the Hot Docs film festival. The documentary was a powerful reminder that there are real people subject to and affected by the security certificates. The constitutionality of the security certificate regime is not about whether the named persons are guilty or innocent. It is about a fundamental human right. In the words of Justice McLachlin herself, “the right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble.”

More information about the Secret Trial 5 documentary can be found at http://secrettrial5.com.

 

Voices-Voix: Silencing Dissent in Canada

Voices-Voix is a national, non-partisan coalition of Canadians and organizations in Canada committed to advocating for rights to dissent and democratic space across the country. The organization was founded on April 21, 2010 when over 100 representatives from some of the country’s most reputable organizations gathered in Ottawa to discuss increasing attacks by the federal government. Decisions of the coalition are made by consensus, and today, more than 219 organizations are members of the coalition. That number continues to grow.

Recently, the organization launched a web video series — “Silencing Dissent in Canada” — which features three Canadian leaders:

Cindy Blackstock, Executive Director of the First Nations Child & Family Caring Society of Canada

John Bennett, Executive Director of the Sierra Club Canada

Katie Gibbs, Executive Director of Evidence for Democracy

As of April 2013, 81 cases of silencing dissent by the Government of Canada have been documented, including: Environment – 8.6%, Immigrants and Refugees – 7.4%, Military and Veterans – 8.6%, International Development – 8.6%, Watchdogs – 19.8%, Aboriginal Peoples – 9.9%, Women – 12.3%, and Other Targets at 24.7%.

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