BC Coroners Inquest into solitary confinement deaths begins

Proceedings began at the Burnaby Coroners Court yesterday as an inquest into deaths in solitary confinement got underway. The inquest surrounds the deaths of three prisoners at Mountain Penitentiary in Agassiz, BC. Gerald Joseph Cayer, aged 49, Kyle Darren Tombaugh, aged 35, and Warren Robert Allen, aged 54, all died within an eight month period between July 2012 and February 2013.

While Coroners Inquests generally deal with only a single incident, in this case the three incidents are being examined together, in light of the fact that all three men were being held in segregation at the time of their deaths.  Chief Coroner Lisa Lapointe has determined that the circumstances surrounding the men’s deaths were sufficiently similar to have a single inquiry under the Coroners Act. Read the rest of this entry »

Québec’s Gun Registry Appeal to the SCC

There is no shortage of tension between the federal Conservative government and the province of Québec.

Matters include: the Supreme Court of Canada Senate Reference; the intention to appoint Justice Marc Nadon to the Supreme Court of Canada as a representative from Québec; ongoing debate surrounding Bill 52 (Euthanasia); and of course, Québec’s gun registry appeal to the SCC, one of the most controversial law enforcement changes in Canadian history.

In its lifetime, the federal long-gun registry database has cost Canadians over $1 billion.

It’s important to place the long-gun registry and its purpose within an historical context. In 1993, the federal Liberal Party of Canada created the long-gun registry, in part because of the tragic events of December 6, 1989, the massacre of 14 women at École Polytechnique in Montréal, who were discriminated against because of their gender.

Fast-forward almost twenty years later. The Conservative government announces their intention to destroy federal long-gun registry data through Bill C-19: Ending the Long-Gun Registry Act. Québec vehemently opposes the motion. February 15, 2012, Bill C-19 passed third reading in a 159 to 130 vote in the House of Commons. The gun-registry database would soon be dismantled, including information on 5.6 million rifles and shotguns, and 1.6 million rifles registered by Québec residents. The Conservatives even had a count-down clock on their website prior to the vote. Québec remained outraged and expressed its intention to create its own registry.

Parti Québecois leader Pauline Marois expressed her discontent toward abolishment. Following the Conservative Party’s announcement of a cocktail party to celebrate the federal Bill’s passing, she commented that the dismantling of the registry was “indecent and unacceptable.” She also read the names of the 14 women killed in Montréal’s 1989 massacre.

Bob Rae, Interim Liberal Leader, expressed concerns about the cocktail celebration:

“All of us should be sensitive to the feelings of Canadians across the country,” Rae told reporters. “The more they celebrate, the more they distance themselves” from Canadians who don’t always agree with government policies.

Québec Conservative MP Maxine Bernier was of a different view and towed the party line:

“[...] my colleagues [the Conservatives] will have a reception this evening to underline the fact that we have realized another of our election promises,” Bernier said. “Certain colleagues want to meet with the people who have worked for many years to abolish the registry.”

After passing the House of Commons, the federal bill to scrap the long-gun registry passed the Senate on third reading on April 4, 2012, in a vote of 50 to 27.

On February 19, 2013, Bill-20: Firearms Registration Act was presented in Québec’s National Assembly by the Provincial Minister of Public Security Stephané Bergeron.

June 27, 2013, the Québec Court of Appeal overruled a Québec Superior Court ruling and sided with the federal government, rejecting Québec’s claims to preserve long-gun registry data. The decision stated:

“Québec has no property right to the data in the  [Canadian Firearms Registry],” the appeal court decision reads. “The data does not belong to Québec, and the provinces have no control over it.”

The decision also discussed the complex area of federalism:

“It quoted a recent Supreme Court ruling that said that as popular as ‘flexible federalism’ might be, it ‘cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state.’”

Québec’s Justice Minister, Bertrand St-Arnaud, responded within the 15-day appeal period with the intention to appeal the decision to the Supreme Court of Canada. Mr. St-Arnaud stated:

“All political parties represented in the national assembly defend this position and strongly oppose the federal government’s decision to abolish the firearms registry.”

November 21, 2013, the Supreme Court of Canada agreed to hear Québec’s opposition to the Court of Appeal decision. No reasons were given for the decision to hear the case, which is the norm. The case has certainly received widespread public interest:

“The decision of the court reaffirms the fact that there is public interest in studying Québec’s request for an appeal on the decision to destroy the records on 1.6 million rifles and shotguns registered in Québec,” [Coalition for Gun Control] president Wendy Cukier said in a release.”

Gun-registry data has now been destroyed from all provinces and territories except Québec. The province remains the birthplace of the long-gun registry, and may be the final resting place of an ongoing federal-provincial battle that will extend to 2014 — maybe beyond.

Surveillance & the Rule of Law: the Road Paved with Good Intentions

A month ago, Ron Deibert, director of the Citizen Lab at the University of Toronto, visited Green College at the University of British Columbia to speak about Cyber Swarming: Distributed Counter Intelligence and Surveillance as Global Civil Security . Deibert called his pitch a “model for a countermovement” against the troubling story of ever-increasing privacy rights violations by state actors.

(Side note: In contrast to my discussion of privacy in the abstract as a weak concept, Deibert’s sketch of the unfolding government surveillance saga looks at what is happening in the real world, now. Just wanted to state for the record that my objections to privacy as a rights-bearing tool are not intended to comment on current state actions.)

What struck me most in the talk was its legal subtext: written all over his narrative was the deterioration and subversion of the rule of law – and how such failures were ushered in the very idealism that birthed the internet. The irony is that it’s the same old “those who forget history are doomed to repeat it” story we never seem to fully grasp. I want to take a moment to scrutinize Deibert’s history from a legal perspective, in the spirit of thumbing my nose at this stupid pattern. I think this is something we need to do more often, so that we learn to recognize the signposts of going down the same treacherous roads before we embark on them.

The Background: the promise of a legal vacuum / a space devoid of legal constraint

So let’s get into the history. Before the swollen constellation we know as the interwebs looked like it does today, Al Gore was a figure instrumental in pushing us in towards this model. He advocated for the consolidation of various unconnected networks by spearheading the High Performance Computing and Communications Act. While he used government to help build the apparatus, he also, according to Deibert, deserves credit for the initial push to extricate government forces from its administration.

As a result, thanks at least in part to Gore, the internet flourished in a space largely devoid of law. The ideology behind this approach was utopian: we wanted the internet to be a free space because we thought that its exemption from law was a safe social experiment. It was new and not terribly important to our daily lives at the time, so why not futz around? It could be a place for unrestricted innovation, collaboration and sharing.

We couldn’t really conceive then that practices taking place in a virtual world might infiltrate the real world irreversibly, and that partly as a result, internet-based practices could be powerful and dangerous. In this context, it gradually accumulated our dependency.

The evolutionary morphing of “security threats”

Deibert identifies 9/11 as the game changer when it came to how state intelligence agencies thought about information and surveillance. Before, says Deibert, it was a “spy versus spy” sort of world – governments against governments. 9/11 saw the coming of age of The Terrorist Threat. As a dispersed and slippery malice, it caused spy agencies to turn away from states and towards their citizens. This movement was exacerbated by the fact that 9/11 was widely characterized as an intelligence failure. It changed the conversation: since there were hints that weren’t picked up on, adequate surveillance technology was clearly available. In hindsight, we thought properly executed violations of privacy seemed like a small price to pay for the now-extinguished lives of thousands of Americans.   

So we’ve got roughly 2.5 conditions here necessary for the perfect storm of government surveillance active today:

  • the growing relocation of commercial and interpersonal communication from other communicative technologies onto the web (and the means to track it) and
  • the primary focus of a threat to national security now located at the situs of the individual rather than the state

It’s easy to see now how what looked at first like a legal haven could have been better described as a vacuum: through the tragedy of the commons, the lowest common denominator of government and private action rushed in. Eventually.

In 2002, American John Poindexter (of Reagan-era scandal fame) championed a bill to launch the Total Information Awareness program, which failed in Congress partly as a result of his connection with it. The program aimed to develop capacities to

“turn everything in cyberspace about everybody …  into a humongous, multi-googolplexibyte database that electronic robots will mine for patterns of information suggestive of terrorist activity,”

as an article from the New Yorker in 2002 by Hendrik Hertzberg describes. But, Deibert points out, the bill’s failure in congress didn’t stop the program from moving forward. It got atomized into different projects and black-budgeted.

Regardless of how commonplace a practice like this might be, I would like to pause here and marvel at just how repulsive this is to a democratically-minded palate: if Congress tells you to bugger off and take your horror-house program with you, you bugger off. I thought that that’s what following democratic procedure means. You don’t add food dye to your rotten meat, repackage it and send it back to the marketplace.

The private sector and state intervention: a waltz

With the public hand of government extracted from the internet, it is now (and has always been) run by private companies.

What do you do if you are a private company and there are no rules?

Deibert offered a couple of case studies, I’ll only mention one here. He pointed to the oft-downplayed Green Revolution or Twitter Revolution in Iran, which happened in 2009, awhile before the Arab Spring is said to have kicked off. When it became clear that Twitter was an indispensable vehicle for the protests, the Iranian government sought and obtained “lawful intercept capability” from Nokia to figure out who was associated with which incendiary tweets. Then came arrests, and the movement was quashed pretty quickly.

It’s easy for us chastise Nokia for complying with Iran’s ask. But think about it: what was this company supposed to do? You’re in an internet with no rules! As Nokia, you have the authority figures of a government knocking at your door, and no playbook to go by except maybe some ethical queasiness. But up against that is the potential threat of getting your business shut out of an entire country.

This is exactly the scenario that government intervention, in the form of legislation, is designed to prevent (presuming, of course, that the legislation we would like to see should have come from Nokia’s home turf). Since we never designed corporations to have moral compasses, it is the job of legislation to let them know where the limits are. Without limits, the worst request is going to get complied with.

A fairly short interval gets us from this point to the government surveillance nightmare we are currently staring down. Thanks to the Snowden saga, Deibert says, countries around the world are taking this government surveillance style and running with it. An activist from Bahrain is arrested, tortured, and presented by his government captors with transcripts of his Skype conversations. The Ethiopian government has used spyware against an opposition party prior to an election. Using the Chinese version of Skype, if you try to type in phrases like “Tiananmen Square” you just can’t.

Garret Hardin wrote “The Tragedy of the Commons” in 1968. I appreciate the difference between the idea of using up a resource and governments abusing power in a space without legal constraints, but I think there is sufficient similarity to merit the comparison. We put in legal frameworks because we want to set a floor for standards of behaviour, government or civilian. Undoubtedly internet culture wouldn’t look the way it does if we had done this from the get-go. What is more important?

All I am saying is, I think it’s fair to demand that when we are presented with a new resource, we don’t approach it with the kind of naïve idealism that leads us to unleash it with insufficient restrictions on behaviour when we have seen this pattern before.

Contract awarded to replace aging St. John’s prison

After several recommendations and government reports voicing concerns about the state of Her Majesty’s Penitentiary (HMP) in St. John’s, Parkins Architects has been awarded a contract for the design and location of a new provincial prison for Newfoundland and Labrador. This announcement comes despite the previous position of the federal government not to provide funding for a replacement to the 155 year old prison.

Recommendations for improvements to physical and mental health care were amongst 77 recommendations made by the Newfoundland and Labrador Department of Justice in a report issued in October 2008 regarding the conditions at HMP at that time.

Read more here.

Bill-52 (Euthanasia) Debate Continues

Debate around Québec’s Bill-52 (Euthanasia), introduced by the Parti Québécois, continues. For background information, read a previous entry.

Professor Margaret Somerville, a leading expert and founding Director of the Centre for Medicine, Ethics and Law at McGill University, recently wrote an opinion editorial in The Globe and Mail: Why euthanasia and assisted suicide must remain legally prohibited.” She writes extensively on the lesser debated “life concepts,” and references the Carter et al. v Canada case out of the British Columbia Supreme Court, in which the Supreme Court of Canada has since granted leave. She concludes:

Where we disagree in the euthanasia debate is what honouring respect for human life requires. Those who equate loss of independence with loss of dignity believe that what they perceive as a quality of life not worth living justifies euthanasia. Those who see all humans as having dignity just because they are human, believe that respect for life requires that we do not intentionally kill another human being or help them to kill themselves, which means that euthanasia and assisted suicide must remain legally prohibited.

Other opinion pieces, including Margaret Wente’s “Assisted suicide — what could possibly go wrong?” have also weighed in. She mentions Canadian support of the right-to-die is strong, but also voices concerns about the liberalism the laws can sometimes take, and have taken, in countries such as Belgium. If Bill 52 passes the National Assembly the end of February 2014, prior to an expected provincial election, the euthanasia law would be the most liberal in all of North America.

Wente mentions the original intent of euthanasia laws in progressive countries such as the Netherlands and Belgium was for “unbearable suffering and incurable illness,” but since then many physicians “are now killing people they have barely met,” including patients who suffer from physical and mental illness, such as anorexia or depression.

This month, Belgium went even further — legislating the rights of children to access euthanasia, lifting age restrictions entirely. Concerns surrounding consent and capacity remain. Though we may not all agree with various pro and anti-euthanasia arguments, Wente concludes that it’s clear “our ethical dilemmas are only beginning.”

Office of the BC Information and Privacy Commissioner seeking public’s opinion on use of police background checks

British Columbia’s Information and Privacy Commissioner Elizabeth Denham is inviting the public to comment on the use of police information checks as a screening tool for those seeking employment or volunteer positions in the province. In an open letter to the public, Commissioner Denham writes;

“There is an increasing trend towards the use of police information checks as a screening tool for employers to assist in determining the suitability of a prospective employee or volunteer. While these individuals consent to the conduct of the check before it takes place, it is unlikely that an individual who refuses a check will still be considered for an employment or volunteer position. As a result, it is important that the process for background checks achieves the correct balance between an individual’s right to privacy and a desire for background information about an applicant.”

The use of police record checks has come under increased scrutiny in recent years, in response to a shift from the use of criminal record checks, which only include an individual’s criminal convictions, to the use of more expansive police information checks, which include not only convictions but also local police agency records. This includes information such as warrants for arrest, peace bonds, restraining orders, incidents of police contact, charges that did not lead to conviction, investigations where no charges were laid, information related to an individual’s mental health, and information under the Youth Criminal Justice Act. Read the rest of this entry »

Québec’s Bill-52 (Euthanasia) & SCC Implications

Conflict at the end-of-life, particularly between families and healthcare providers, involves many complex factors: differing opinions surrounding a patient’s prognosis, cultural differences, moral values and religious beliefs, associated costs, internal family dynamics, and of course, legal ramifications.
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Recently, Véronique Hivon, Minister for Social Services and Youth Protection for the governing Parti Québécois in Québec, introduced Bill 52: An Act Respecting End-of-Life Care.
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PURPOSE OF THE ACT
The purpose of this Act is to ensure that end-of-life patients are provided care that is respectful of their dignity and their autonomy. The Act establishes the rights of such patients as well as the organization of and a framework for end-of-life care so that everyone may have access, throughout the continuum of care, to quality care that is appropriate to their needs, including prevention and relief of suffering.
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Bill-52 has sparked immense debate throughout Québec and across Canada. National Assembly legislators and Québec civil society continues to engage in a polarizing debate as Québec aims to become the first province to legalize euthanasia. The bill, expected to pass as early as this week, will have far-reaching implications for healthcare decision-making for families, healthcare providers, religious groups, and others.
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Currently, the U.S. states of Washington, Oregon and Vermont allow physician-assisted suicide, but not euthanasia, when patients are within months of dying; other countries, such as Belgium, Luxembourg, and the Netherlands, have similar laws. In fact, Belgium recently became the first country to expand euthanasia laws to children (Feb. 13, 2014.)
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If Bill 52 passes, it is likely to make its way to the Supreme Court of Canada. Other cases have been reviewed in the past. One of the most seminal decisions involved Ms. Sue Rodriguez, a woman who suffered from amyotrophic lateral sclerosis (ALS) and, in 1992-93, challenged the validity of Section 241(b) of the Criminal Code. At both the British Columbia Court of Appeal and British Columbia Supreme Court Rodriguez claimed this provision violated Sections 7 (the right to “life, liberty and security of the person”), 12 (protection from “cruel and unusual punishment”) and 15 (equality rights) of the Charter. The case made its way to the Supreme Court of Canada. The Supreme Court rendered a 5-4 decision on September 30, 1993, dismissing Rodriguez’s appeal, and upheld the status quo — prohibiting rights to physician-assisted suicide. In 1994, Ms. Rodriguez ended her own life with the assistance of an unknown physician.
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On April 21, 2010, the Bloc Québécois-proposed Bill C-384: An Act to amend the Criminal Code (Right to Die with Dignity) was defeated at second reading by a vote of 228-59, after introduction by MP Francine Lalonde. There was a free vote, which received support across party lines.
*****
The high-profile case raised many ethical and constitutional dilemmas, which are not unique to Ms. Rodriguez’s case or Bill 52 before the Québec National Assembly today, but the issue has certainly received renewed national attention. On January 16, 2014, the Supreme Court of Canada agreed to hear a British Columbia couple’s appeal, from a lawsuit originally filed in 2011 with the assistance of the BC Civil Liberties Association (BCCLA). The original plaintiffs, Lee Carter and Hollis Johnson, were members of Kay Carter’s family, who sued the government on behalf of their relative who travelled to a Switzerland clinic in 2010 to die by choice, after Kay Carter was denied physician-assisted suicide in Canada. Gloria Taylor, a woman with ALS who later joined the plaintiffs, died in 2012. The British Columbia Supreme Court overturned the assisted-suicide law, which was later challenged by the Canadian government and reinstated, in a 2-1 decision, by the British Columbia Court of Appeal. The BCCLA has now been granted leave from the country’s top court. Grace Pastine, litigation director with the BCCLA stated:
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“There are few rights more fundamental, or more deeply personal, than the right to determine how much suffering to endure and whether to seek a doctor’s assistance to hasten death if living becomes unbearable.”
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Clearly much remains to monitor at the Supreme Court. This entry has been adapted from a recent academic paper written by Matthew Ponsford, which can be accessed via www.uottawa.academia.edu/Matthew Ponsford.

Québec’s Secular Charter: Former Supreme Court Justices Speak Out

It is a topic seldom discussed in Canadian politics: the lives, and influences, of former Supreme Court of Canada justices.

The power SCC justices can possess while retired from the bench is being displayed in full-force with the clashing views of former Supreme Court justices Claire L’Heureux-Dubé (1987-2002) and Louise Arbour (1999-2004).

The comments stem from Québec’s controversial proposal of Bill-60: “Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests” introduced during the 1st session of the 40th legislature of Québec’s National Assembly.

Louise Arbour published an Opinion Piece in La Presse, entitled “Choisissons la générosité” (“choose the generosity”). Ms. Arbour stated:

“Let us remember how easy it is to restrict the freedom of others, especially when this initiative comes at no cost to those who advocate it.”

But Claire L’Heureux-Dubé, called to the bar in 1952, has a different view:

“In my opinion, religion is foremost an internal commitment,” she said. “Religious signs are part of the displaying of religious beliefs, and not part of the practice of religion. All state employees are subject to standards of loyalty and restrictions on their freedom of political speech, which was upheld by the courts. Why would the freedom of religious expression be different?”

Full commentary from The Globe and Mail‘s article can be viewed here. What do you think of the Parti Québécois’ Bill-60?

Canadian expats seek voting rights

The phrase “just visiting” will make every Liberal cringe as forming a famous and relentless attack on the legitimacy of Michael Ignatieff to preside over the Canadian government after decades outside of the country. Turns out this prejudice over the credibility of “foreigners” prevails not only in elections, but in voting rights as well. An Ontario judge was urged Monday to consider whether the historical reasoning for a law that strips expatriates of their voting rights after five consecutive years of living abroad makes sense in a modern globalized world. Read the rest of this entry »

McGill Concedes, Students Have a Right to Know

It’s a good day for student activism and general transparency at McGill. Though students involved are hesitant to call the settlement a victory, an ongoing access to information (ATI) lawsuit in which McGill attempted to block students from filing ATIs has been settled.  In short, it means that a variety of long-term requests will be fulfilled and future students will not be prevented from filing new ATIs.

This settlement comes after McGill filed a motion at the Commission d’accès à l’information du Québec to fight a series of unrelated ATIs that they deemed to be “abusive because of their systematic nature,” which the legal counsel for the respondents deemed legally unprecedented.

Amongst the information slated for release by McGill in late February as part of the settlement are documents about the university’s sexual assault complaints and the university’s involvement with fossil fuel extraction, mining, and military research. As part of the settlement, some students also agreed to drop their requests. According to The Daily, these pertain an occupation of the James Administration building in the winter of 2012. The settlement also means that students who filed a complaint against McGill before the oversight division of the Commission d’accès à l’information du Québec will withdraw their complaint.

Student activists and university administrators alike are hesitant to call this a victory.  McGill’s secretary-general, Stephen Strople, told The Daily that “[t]he University does not see this as a ‘win-lose’ situation.” Respondent Isaac Stethem reminded The Daily that “the University does have a history of very heavily redacting some of the documents it releases” so it is important to wait and see what the documents released in late February look like while Respondent Kevin Paul wants to “avoid defining victory through the terms of a legal dispute” and considers “an important victory not only the actual disclosure of information but the freedom to act on that information.”

Click here to read the full settlement and here to read the McGill Daily article by Molly Korab.

To learn more about student activism around McGill’s environmental impact, visit Divest McGill and around McGill’s military ties, visit Demilitarize McGill.

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