B.C. Legislature Contemplating Heightened Security Measures After Ottawa Shooting

In light of Wednesday’s tragic events in Ottawa, questions are being raised about security measures at the B.C. Legislature. CTV Vancouver reports that the premises continue to remain closed to the public for a second day, as staff reassess safety protocols and determine whether to increase security. CTV’s Lisa Rossington said “some people at the B.C. legislature are suggesting the guards should carry firearms and that all public entrances should have metal detectors.”

Speaking to MLAs on Wednesday, B.C. Premier Christy Clark said there would be a careful review of security at the B.C. Legislature. According to CBC, Clark also told reporters that “it was important to find a balance between necessary concerns over security and being very careful not to shut the public out,” adding that ensuring public access to the Legislature and other institutions was a priority. The debate was intensified by reports that Clark and select members of the B.C. Legislature received information about security concerns in Ottawa in the days prior to the shooting.

Security in Metro Vancouver has also been increased for the time being, with a more noticeable police presence at select public buildings and near transit. The CBC reports that heightened security is to be expected at upcoming Remembrance Day ceremonies as well. The scope of these heightened measures is likely to be affected by information regarding the nature and motive of the Ottawa shooting, to be released in the days to come.

Read more here.

 

 

 

 

 

 

 

 

Conservatives to Expand CSIS Powers

Public Safety Minister Stephen Blaney will table a bill when Parliament returns next week to expand the Canadian Security Intelligence Service’s powers. The legislation is a response to the growing number of Canadian citizens traveling abroad to fight for extremist groups like ISIS, as well as a Supreme Court decision in May that declined to grant a class privilege to CSIS informants.

The bill is expected to contain three key provisions:

Read the rest of this entry »

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.

Pour en savoir plus :
Le figaro :
http://www.lefigaro.fr/flash-actu/2014/10/14/97001-20141014FILWWW00069-la-justice-se-penche-sur-le-massacre-de-beslan.php
La Presse :
http://www.lapresse.ca/international/europe/201410/14/01-4809069-la-justice-europeenne-se-penche-sur-beslan.php

The Burqa Ban: Thinly Veiled Discrimination

On Thursday, the Australian Department of Parliamentary Services (DPS) released a circular outlining a new security measure that segregates Muslim women who wear face veils from other visitors to Parliament. The so-called “burqa ban” is an interim measure, which follows Liberal Sentator Cory Bernardi’s request to have burqas banned entirely from Parliament.

Earlier this week, The Guardian reported that the Australian Prime Minister, Tony Abbott, found the burqa “a fairly confronting form of attire” and “wish[ed] it was not worn.”

The divisive statements prompted an immediate outcry from human rights commissioners, politicians, and the Muslim community. Tim Soutphommasane, the Race Discrimination Commissioner, stated: “No one should be treated like a second-class citizen, not least in their own parliament.”

Following the backlash, the Prime Minister has allegedly asked Speaker Bronwyn Bishop and Senate President Stephen Parry to reconsider the new security measure. As of midday Friday, a spokesperson for the Speaker denied having received any such request from the Prime Minister or his office.

The need for the “burqa ban” has been couched in terms of national security and the facilitation of proper identification, leaving the impression that the public gallery in Parliament is riddled with extremists in disguise.  In reality, the Prime Minister himself has noted that, “as far as we are aware, no one has ever sought to enter into the building so attired.” As Communications Minister Malcolm Turnbull notes: “We don’t want to have debates like this being turned into some sort of coded attack on the Muslim community.”

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%.

32 years of the Canadian Charter of Rights and Freedoms

Today, April 17th, marks the 32nd anniversary of the establishment of the Canadian Charter of Rights and Freedoms as part of Canada’s Constitution Act. Liberal MP Irwin Cotler and former Minister of Justice and Attorney General of Canada, now Professor Emeritus at McGill University, has written a thoughtful and reflective opinion editorial in The Globe and Mail:

“On this Charter anniversary, let us reflect upon all that Canada has gained from the Charter in its short existence, and appreciate the contributions the document has made alongside the role of women and minorities in its crafting. All Canadians should be proud of this monumental constitutional moment, and look forward to having an inspiring reason to celebrate April 17 in years to come.”

Mr. Cotler also reflects on the Charter‘s role in fostering a sense of justice, equality, and fairness for all:

“Simply put, the Charter of Rights and Freedoms is promotive and protective of what the pursuit of justice is all about. It is promotive and protective not only of the inherent dignity and worth of every human being, but the equal dignity and worth of all human beings – where one can aspire to a society which celebrates both equality and human dignity – a society which not only speaks to us in terms of who we are – that recognizes the dignity of difference – but also in terms of what we as Canadians, both collectively and individually, can aspire to be.”

Edward Snowden: “technology represents the most significant new threat to civil liberties in modern times.”

Speaking from Moscow to the Council of Europe in Strasbourg, France, whistleblower Edward Snowden provided live testimony, declaring:

“Technology represents the most significant new threat to civil liberties in modern times” (8 April 2014).

"Edward Snowden speaks via video link with members of the Council of Europe, in Strasbourg" (The Guardian).

Prominent human rights organizations such as Amnesty International and Human Rights Watch were alarmed to learn that the National Security Agency (NSA) in both the United States and the United Kingdom have intercepted telephone and information exchanges from high-level human rights staff. Snowden stated:

“The NSA has specifically targeted either leaders or staff members in a number of civil and non-governmental organisations…including domestically within the borders of the United States.”

Asked if the NSA had intercepted “highly sensitive and confidential communications,” Snowden replied: “The answer is, without question, yes. Absolutely.”

Snowden emphasized the wide-scale implications of these practices on reputable human rights organizations, and the safety of their human rights workers and staff, and how data-mining practices violate European Union privacy laws, including XKeyscore. He mentioned the NSA operated a “de facto policy of guilt by association.” The Guardian stated:

“XKeyscore allows analysts to search with no prior authorisation through vast databases containing emails, online chats, and the browsing histories of millions of individuals.”

In response to those who criticize his [Snowden's] outspoken account of the inner-workings of the NSA as a former analyst:

“I would like to clarify I have no intention to harm the US government or strain [its] bilateral ties.”

The Council of Europe defended the organization’s choice to invite Snowden’s testimony:

“Edward Snowden has triggered a massive public debate on privacy in the internet age. We hope to ask him what his revelations mean for ordinary users and how they should protect their privacy and what kind of restrictions Europe should impose on state surveillance.”

Amnesty International UK issued a press release following stark revelations. Michael Bochenek, Amnesty International Senior Director of International Law and Policy, stated:

“These allegations, if substantiated, would confirm our long-held fears that state intelligence agencies like the NSA and GCHQ have been subjecting human rights organisations to mass surveillance all along.

This raises the very real possibility that our communications with confidential sources have been intercepted. Sharing this information with other governments could put human rights defenders the world over in imminent danger.

When these concerns were raised before the US Supreme Court, they were dismissed as being ‘speculative’. Snowden’s latest revelation shows that these concerns are far from theoretical – they are a very real possibility.

We now need a full and frank disclosure of the extent of these surveillance programmes as well as water-tight legal guarantees against such indiscriminate surveillance in the future.”

NB: this opinion editorial was written in a personal capacity and does not represent the views of any of the organizations noted above.

Marc Nadon Denied Appointment to SCC

In a long-awaited decision from the Supreme Court of Canada, six justices of the top court have confirmed Justice Marc Nadon’s ineligibility to sit as the ninth justice of the SCC, concluding that Prime Minister Harper’s appointment was unconstitutional (paras 1 to 107). Three of the six justices were appointed by Harper themselves.

Justice Michael Moldaver dissented (paras 108 to 154). Justice Marshall Rothstein recused himself from the decision (speculation is that he identified a conflict of interest.)

The full judgment of Reference Re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 can be read here.

An article from the CBC stated:

“The court ruled that its composition is constitutionally protected, and Parliament’s attempt to change the Supreme Court Act through a budget bill is unconstitutional,” and “Changes to the court’s makeup require a constitutional amendment with the unanimous consent of the provinces, the court says.”

Québec judges require the knowledge of the civil law code, different from the common law administered in other Canadian jurisdictions.

Rocco Galati, a Toronto-based lawyer, challenged the Prime Minister’s appointment because Justice Nadon came from the Federal Court of Appeal, rather than a court of Québec, and therefore was unqualified to fill one of three seats from the province of Québec.

[4] In our view, the answer to this question is no: a current judge of the Federal Court of Appeal is not eligible for appointment under s. 6 as a person who may be appointed “from among the advocates of that Province”. This language requires that, at the time of appointment, the appointee be a current member of the Québec bar with at least 10 years standing.

An interview with University of Ottawa Faculty of Law professor Adam Dodek featured interesting discussion, including:

Q. Can you elaborate on what part of the language struck you as especially firm?

A. In many ways this is a declaration of independence by the Supreme Court of Canada. So by going beyond the first question of the statutory language of whether a Federal Court judge qualifies for appointment and into the second question on the constitutional issues, for the court to say that it is constitutionally entrenched through a number of provisions, went beyond what was minimally necessary for the case.

Q. So this is a landmark ruling about where the court fits in the structure of our government.

A. Very much. It is an instant landmark ruling, a classic ruling. And remember, we expect the Senate reference later this year. Together with the Senate reference, these two decisions will be the most important decisions since the [court's 1998] secession reference.

Q. Is there anything in the Nadon ruling that foreshadows what we should expect the court to say about the government’s desire to press ahead with Senate reform, instituting a sort of election of senators and imposing a limit on how long future senators serve?

A. I think the judges were very, very careful not to say anything that would relate or tip their hand on what they will ultimately decide on the Senate.

Q. Some will look for a sort of hidden partisan political struggle between the Supreme Court and Prime Minister Stephen Harper. But I notice that of the six judges who ruled against the Prime Minister on Nadon, three were appointed by him to the top court.

A. I think in many ways the decision shows the independence of the Supreme Court and the independence of individual judges on the court. You know, I think Justice Moldaver’s dissent shows his independence of thought and has nothing to do with the fact that he’s a Harper appointee.

Q. Is it possible that Justice Nadon, having been rejected because he’s not a current member of the Quebec bar, could join it and be reappointed?

A. I don’t know Justice Nadon at all. I think the government has done him a great disservice through this whole process. I don’t know if he would want to continue to go through that.

The unprecedented decision will have widespread implications for the SCC’s ongoing Senate Reference deliberations.

SCC Unanimously Upholds Sexual Assault Conviction

A decision rendered March 7, 2014 from the Supreme Court of Canada unanimously upheld a sexual assault conviction of a Nova Scotia man, Craig Hutchinson.

The man attempted to trick his then-girlfriend into pregnancy by poking holes in the condoms they used during intercourse. In 2006, the accused poked holes in condoms using a pin, resulting in his girlfriend’s pregnancy and subsequent abortion. The woman was later treated with antibiotics having suffered a uterus infection.

Per R v Hutchinson, 2009 NSSC 51, the Nova Scotia Supreme Court originally found Hutchinson not guilty of aggravated sexual assault.

The Crown had to prove the “sexual activity in question” was not consented to, specifically unprotected intercourse, per Section 273.1(1) of the Criminal Code.

September 28, 2011, Hutchinson was found guilty by the Supreme Court of Nova Scotia and convicted of sexual assault. He was sentenced to 18 months on December 2, 2011 per R v Hutchinson, 2011 NSSC 462. Coughlan J of Halifax (para 25) writes:

Considering the case law and legislation, the circumstances of the offender and the offence, I sentence Mr. Hutchinson to incarceration for a period of eighteen months.

In a subsequent hearing at the Nova Scotia Court of Appeal the appellant appealed both the conviction and eighteen month sentence. In R v Hutchinson, 2013 NSCA 1, MacDonald, CJ, writing for the majority, concluded:

The judge was correct to conclude that the “sexual activity in question” [as envisaged in s. 273.1(1) of the Criminal Code] was unprotected sex which the complainant did not consent to. With all other elements of the offence made out, the appeal against conviction should therefore be dismissed.The sentence was not demonstrably unfit, nor did it reflect an error in principle. Therefore, the appeal against sentence should also be dismissed.

However, Farrar J provided a dissenting opinion which gave grounds for the appellant’s appeal to the SCC:

The trial judge erred in finding there was no consent under s.273.1(1) of the Criminal Code. The proper approach would have been to determine whether consent was vitiated under s. 265(3)(c) by fraud. The appeal should be allowed and a new trial ordered.

In a unanimous 7-0 ruling, the SCC concluded in R v Hutchinson, 2014 SCC 19 that Mr. Hutchinson’s actions of poking holes in condoms vitiated his girlfriend’s consent. The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario were interveners.

McLachlin, CJ & Cromwell, J (para 71) write:

We conclude that where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent under s. 265(3)(c).

Paragraph 70 of the judgment discusses a woman’s right not to become pregnant:

The concept of “harm” does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy. Depriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a “significant risk of serious bodily harm” within the meaning of Cuerrier, and therefore suffices to establish fraud vitiating consent under s. 265(3)(c).

Key Timelines and Jurisprudence

R v Hutchinson, 2009 NSSC 51

R v Hutchinson, 2011 NSSC 462

R v Hutchinson, 2013 NSCA 1

R v Hutchinson, 2014 SCC 19

Related Cases

R v Mabior, 2012 SCC 47, [2012] 2 SCR 584

R v Cuerrier, [1998] 2 SCR 371

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