Charter

Unpacking the Issues in the Upcoming TWU Appeals at the Supreme Court of Canada

Posted on by Tal Schreier

by Tal Schreier

On November 30th and December 1st 2017, the Supreme Court of Canada will hear two appeals involving Trinity Western University (TWU), a private Christian university in British Columbia wishing to open a new law school. The appeals involve legal challenges to decisions by the law societies of British Columbia and Ontario and the impact of a policy that requires TWU students to sign a code of conduct forbidding sexual intimacy outside heterosexual marriage. Ontario decided to deny the accreditation of TWU law graduates in the future, while BC approved accreditation. The cases are expected to “break new constitutional ground” around how administrative decision-makers are to balance the competing Charter rights of equality and freedom of religion.

The David Asper Centre for Constitutional Rights is involved in three upcoming events at the University of Toronto’s Faculty of Law aimed at assisting students and the public in better understanding the key issues that are involved in the TWU cases. The Asper Centre  is jointly convening these events with Out in Law and the Journal of Law and Equality.

First, on November 23rd, ahead of the actual court dates, a Dean’s Emerging Issues Workshop Series panel discussion has been convened to consider and analyse some of the main issues that will be covered in the TWU appeals. The discussion will cover the administrative law issues involved, the balancing of competing rights and the unique circumstances regarding the involvement of public interest interveners in these cases. The panelists will include Professors Denise Reaume and Richard Stacey of the Faculty of Law, University of Toronto, Professor Richard Moon of the Faculty of Law, University of Windsor and Cheryl Milne, the Executive Director of the David Asper Centre for Constitutional Rights. Maryam Shahid, JD Candidate at the Faculty of Law and co-Editor of the Journal of Law and Equality will moderate the panel.

Second, on the actual hearing dates (Nov 30 and Dec 1) we have organized for the live-stream viewing of the arguments taking place at the Supreme Court of Canada. While the arguments are being live-streamed directly from the court, faculty members from the law school will provide commentary explaining the key issues as they arise. A schedule of “live-commentators” will be made available in due course.

Lastly, following the hearing, we will convene a post-TWU debriefing panel discussion. This presentation will provide an opportunity for some of the intervening parties’ counsel to discuss what transpired in the cases and what they may have liked to say to the court to better enrich the parties’ arguments, if not for the constraints involved. The date for this presentation will take place sometime in late January or early February of 2018.

A Preliminary Look at Bill C-59 and its Implications on Canadian Privacy Rights

Posted on by Tal Schreier

By Natasha Anzik

 

The Liberals’ new national security legislation, Bill C-59, was tabled in the House of Commons on June 20th, 2017. The ten-part, 139-page legislation has taken a robust look at the current state of Canadian national security, proposing many changes and additions, but still leaves several gaps in the protection of Canadian privacy rights.

Last December the Asper Centre’s Privacy and National Security Working Group made a submission to the Department of Public Safety Canada and to the Department of Justice. This submission primarily dealt with the Charter implications of warrantless access to basic subscriber information, but also considered data retention and systems of review. Bill C-59 has also been criticized for its failure to address issues with regard to the Security of Canada Information Sharing Act, including its overbroad definition of security and the vast amount of information sharing permitted. While not discussed here, or as part of the Asper Centre’s submission, it is evidence of the breadth of issues that remain unresolved.

Basic Subscriber Information

The Asper Centre’s submission was made in response to Bill C-51 and the 2016 National Security Green Paper and called for several reformations to the accessibility of basic subscriber information (BSI) in order to be compliant with s. 8 of the Charter. BSI can simply be a name, address, telephone number, and matching an IP address. This seemingly unremarkable information, the working group argued, should be protected from warrantless access as the combination of this information can lead to inferences about an individual’s registered services, interests, organizational affiliations, and geographic location and therefore may engage one’s s. 8 Charter rights.

Issues were raised with respect to the Green Paper’s suggested lower evidentiary requirements for obtaining lawful access to BSI, and how this lower standard would run counter to the spirit of s. 8, which protects against unlawful searches. This argument was supported by the Supreme Court’s decision in R. v Spencer, which holds that subscriber information can carry a high expectation of privacy, and disclosure of this information is vulnerable to Charter challenges. As this decision was specific to Internet subscriber information, the working group recommended a consistent standard for the sharing, retention, and destruction of personal information across different platforms. Consistency across all law enforcement agencies would also help prevent backdoor information sharing. Another issue raised by the working group is that the metadata regime of the Criminal Code has historically been unclear, and interpreted to suggest that communications service providers can readily disclose subscriber information. The Asper Centre thus advocated for a federal law that clearly prohibits the voluntary disclosure of subscriber information by telecommunications companies, and requires judicial authorization for access.

The need for clarification of this area of law was echoed in the 2016 Green Paper. While the paper called for a clear law governing access to this information, Bill C-59 is notably silent on this issue. Although not considered now, its inclusion in the Green Paper suggests this issue will be addressed in future legislation, meanwhile this area of law will likely remain inconsistent and problematic for the privacy protection of Canadians.

While Bill C-59 does not address BSI specifically, the issue of access to information comes up in the regulation of the Communication Security Establishment’s (CSE) activities. The CSE is an intelligence network, focused on gathering information to protect Canada’s cyber security from external threats. The Bill provides for a large expansion of the powers of the CSE, but also provides several restrictions recognizing the potential for these expanded powers to engage the s.8 privacy rights of Canadians. One restriction includes limiting the CSE from directing their activities at Canada and people in Canada, but this does not prevent the agency from acquiring “publicly available information”, defined as information that can be made available upon request. Although the government argues that publicly available information would inherently have a lower expectation of privacy and therefore not engage s.8 of the Charter, this information could potentially include BSI that is voluntarily released by communication service provides. This allowance therefore could lead to privacy issues as described above. As the state of lawful access remains in flux, Canadians will remain vulnerable. These provisions will also be problematic in how they might inform the treatment of BSI in future legislation.

Systems of Review

One of the most prominent parts of the new Bill is its creation of the National Security and Intelligence Review Agency (NSIRA). The current system of review was an area of concern raised by the Asper Centre’s submission. The criticism focused on the limited powers of review allocated to the Privacy Commissioner and the review agencies for CSIS, the RCMP, and the CSE. This system not only creates a silo effect between agencies, but also demands increased resources and understanding to sufficiently oversee the mass of information in and between national security agencies. Bill C-59 addresses this issue and the need for increased accountability and public confidence in its creation of the NSIRA. Outlined in the Bill’s Charter Statement, the job of the NSIRA would be to “review and report in an integrated manner on the lawfulness of all national security and intelligence activities across government, thereby enhancing accountability, transparency and the safeguarding of human rights in Canada.” Part 2 of the Bill would also establish a quasi-judicial Intelligence Commissioner, who would review certain decisions regarding intelligence gathering. These new review systems seem promising in their ability to rectify the lack of broad oversight, to increase accountability, and to correct the current silo effect.

Data Retention

The Asper Centre’s submission also encouraged the establishment of a scheme of data retention that maintains a balance between Canada’s national security interests and privacy protections. The Asper Centre discouraged mandatory minimum retention schemes and unlimited information sharing between agencies, and argued that these data retention schemes should have a system of independent review for the use of information once obtained. Bill C-59 does not address this issue at length, but does allow the limited retention of datasets, which require judicial authorization that is valid for no more than two years. Dataset use must also be “strictly necessary”, and will be subject to review by the Intelligence Commissioner. While this change does not fully address all the concerns of the Asper Centre, it is a step forward in the establishment of a more robust scheme of information storage that hopefully will be refined to ensure further Charter compliance.

 

While this Bill has made strides with respect to the Asper Centre’s concerns, there are still some gaping holes with respect to the privacy protections afforded to Canadians. It seems unlikely that lawful access to basic subscriber information will be addressed in the passing of Bill C-59, as this was an issue at the attention of legislators as part of the Green Paper consultation process, but was actively excluded in the drafting of the Bill. Hopefully the review process of the Bill will lead to further clarification of the powers of the CSE in collecting information, how basic subscriber information relates to “publicly available information,” and may engage s. 8 of the Charter. These issues will have the potential to be raised to the Standing Committee on Public Safety and National Security this fall.

Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law.

Bill C-23 leaves cross-border travelers vulnerable to Charter rights infringements

Posted on by Tal Schreier

By Natasha Anzik

Bill C-23, the Preclearance Act, was recently amended by the Standing Committee on Public Safety and National Security and passed to the Senate on June 21, 2017. The bill establishes many new preclearance areas in Canada to be staffed by U.S. officers in order to clear travelers through customs prior to crossing the border. Canadian officials will conversely work in preclearance zones in the U.S. This bill is designed to expand border preclearance, expediting travel and the movement of goods between our two countries. Concerns have arisen with respect to the amount of power granted to U.S. officials on Canadian soil and how their actions will be held accountable under Canadian law. Although many recommendations to rectify the potentially unconstitutional aspects of the Act were made to the Standing Committee, they were insufficiently adopted in the Committee’s amendments. Consequently, if enacted in its current form, the bill will expose border crossers to many potential violations of their Charter rights.

Bill C-23 was conceived in 2016 in response to the Agreement on Land, Rail, Marine, and Air Transport Preclearance signed by the Canadian and U.S. governments. It was first tabled in the House of Commons on June 17, 2016, and was referred to the Standing Committee in March of 2017. The Asper Centre made several arguments concerning the bill’s constitutionality in its submissions to the Committee including recommendations to scale back the expanded powers granted to U.S. authorities to question, search, and possibly detain travelers entering the United States. The Asper Centre’s submission focused on three major issues: preclearance officers’ power to search and detain, the protection of digital privacy rights, and the lack of meaningful remedies.

The Asper Centre was the only organization to make an argument for increased digital rights protections in preclearance zones. Courts have consistently held that one’s expectation of privacy is significantly diminished at the border, as it is reasonably expected for travelers to be screened. Items such as luggage and purses are classified as “imported goods” and are subject to searches absent reasonable suspicion. The Asper Centre urged the Committee to classify digital devices as distinct from imported goods in order to afford these devices more protection due to the intimate and singular nature they play in our lives.

Under the current law, travelers who wish to withdraw from preclearance may do so at any time, no questions asked. Bill C-23 introduces a new process of withdrawal, outlined in s.30, which states that to withdraw from preclearance travelers must answer truthfully to any questions pertaining to their identification or reasons for withdrawing, and must comply with direction given by preclearance officers. The Asper Centre, British Columbia Civil Liberties Association (BCCLA), and the Canadian Bar Association (CBA) all raised issues with this provision’s potential to create a situation of arbitrary detention contrary to s. 9 of the Charter. Under this new legislation, travelers would not feel free to walk away from preclearance, creating a reasonable perception of detention. Each group also discussed several other rights engaged by this provision including: the right to be informed of the reasons for detention, the right to counsel, and the right to silence.

Granting U.S. officers the power to conduct strip searches was also a point of contention. S. 22 of the bill affords this power to U.S. officers if Canadian officials are either unwilling or unavailable to conduct the search. Both the BCCLA and the CBA noted that strip searches are prima facie violations of the Charter, and submitted that this power should not be granted to U.S. officers. The CBA recommended that only Canadian officers be allowed to execute strip searches.

The Asper Centre considered the power to conduct strip searches in light of the fact that there are insufficient remedies for rights violations within the bill. An unlawful strip search engages s. 8 of the Charter, but American authorities are immunized from any civil claims under the State Immunity Act unless they cause death or serious bodily injury. In order for a psychological harm to be covered it must rise to the level of nervous shock. Further, since U.S. officers are not considered servants of the Crown, Canada could not be held accountable for any rights violations. This potentially precludes remedies in the form of damages, declaratory relief, and any other means deemed appropriate under s. 24(1) of the Charter. While the BCCLA recommended clarification of how the U.S. will be held to compliance, the Asper Centre took this one step further, recommending that the full range of Charter and Canadian Human Rights Act remedies be made available against the US for actions of preclearance officers in the fulfillment of their duties.

The Standing Committee’s amendments made several clarifications to various terms used in the Act in addition to establishing a system of independent review of the Act five years after its enactment. Several additions were more pertinent to the constitutional concerns raised, such as the addition of s. 11(1) which declares that, “A preclearance officer must exercise their powers and perform their duties and functions under this Act in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.” While this amendment is a nod to the constitutional issues raised to the Committee, it insufficiently protects the rights of travelers. American authorities remain immunized under the State Immunity Act, therefore it would seem unlikely that any action can be taken against them unless their actions cause serious injury or death. The lack of remedial action means there is no check on the requirement outlined in s.11. As Chief Justice McLachlin has previously asserted: “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.”

The other significant addition made to Bill C-23 was the addition of s. 11(2), which states, “The Minister must…provide every preclearance officer with training on the Canadian law that applies to the exercise of the preclearance officer’s powers and the performance of their duties and functions under this Act.” This was an issue that was raised by the BCCLA, which urged that the government ensure that preclearance officers be properly trained so as to prevent violations of Canadian law. The amendments do not address the issues of preclearance detention, digital privacy rights, or strip searches, however.

The rights protection concerns in preclearance areas are especially salient due to the current state of Canada-U.S border immigration. There has been consistent coverage in the media of incidents of Canadians being turned away at the border as a result of seemingly discriminatory practices. The Ontario Human Rights Commission recently released a report documenting the impact of racial profiling in a number of contexts, and stories of Canadians having digital devices searched extensively at the border are commonplace in the news. The amendments made to Bill C-23 leave many holes in the protections afforded to travelers in preclearance areas. The current trends are alarming, and this Act will only exacerbate these current issues. Most notably, the lack of remedies available for harms caused by the unlawful actions of U.S. officers leaves their increased powers unchecked, and travelers vulnerable to violations of their Charter rights. Bill C-23 was passed to the Senate on June 21, and will hopefully be met with some rational objections.

 

Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law.

Rectifying the Wrongs of Indefinite Immigration Detention in Canada

Posted on by Tal Schreier

by Natasha Anzik and Norman Yallen

After being continually detained for seven years, Kashif Ali was finally released earlier this year by order of Justice Ian Nordheimer of the Ontario Superior Court. The case, Ali v. Canada, outlined the details of his immigration detention, which was comprised of five years in a maximum-security prison and included 103 consecutive days in solitary confinement. The Canadian government intended to deport Mr. Ali, but his lack of documentation verifying his nationality meant that he had nowhere to go. Born in Ghana, Mr. Ali spent his childhood in different places, moving to Nigeria, Germany, the United States, and then finally to Canada at age 20. During this time he did not acquire any documents establishing his birth or nationality, and was unable to make a refugee claim when landing in Canada. Due to his criminal convictions and absence of legal status the Canadian government sought to deport him. But there was no country to deport Mr. Ali to, leaving him indefinitely detained for seven years.

According to the Canadian Border Services Agency (CBSA) there are 450 to 500 people detained under the Immigration and Refugee Protection Act at any given time. A person can be detained in Canada if they are deemed a flight risk, pose a danger to the public, or are unable to confirm their identity. Canada is one of the few western countries that has no prescribed maximum duration for immigration detentions. Detention in the EU is limited to 18 months; the U.S. has a limit of 6 months. This is also not a new issue. Canada has been called on twice by the United Nations to change its practices. Immigration detention raises serious issues with compliance to both human rights obligations and the rights guaranteed by Sections 7 and 9 of the Canadian Charter of Rights and Freedoms. These rights include both the right to life, liberty, and security of the person, and the freedom from arbitrary detention or imprisonment. These rights were especially salient in Mr. Ali’s case, and the holding that led to his release.

Mr. Ali was first found to be inadmissible to Canada in July of 1995. The Canadian government spent more than twenty years trying to deport him and was largely unsuccessful, except for his temporary return to Ghana in 1996. The CBSA claimed that Mr. Ali was uncooperative and was intentionally withholding information. They also claimed that he was inconsistent in his accounts of his upbringing, telling varying stories about his family, their whereabouts and the various aliases Mr. Ali had used while in Canada. The Immigration Division of the Immigration and Refugee Board classified him as a danger to the public and a flight risk. Despite monthly reviews of his case, the board sustained this classification, and his detention, for seven years.

Justice Nordheimer allowed Mr. Ali’s habeas corpus petition to be heard, declaring his situation to be an exceptional circumstance, therefore meeting the test for review as set in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness). He noted the circumstances made it such that, “Mr. Ali’s detention could literally continue forever”. In replying to the Attorney General of Canada’s submission that the length of detention was not exceptional, Justice Nordheimer remarked, “If it is typical for Canada to detain persons for seven or more years for immigration purposes, then this country has a much more serious problem with its immigration process than is currently understood.” By this time Mr. Ali had spent almost twice as much time in detention than if he would have served jail-time as punishment for all of his criminal offences combined.

To Justice Nordheimer, this was unacceptable. The court rejected Mr. Ali’s flight risk status, holding that it was not demonstrated on the record. The court further rejected the submissions that Mr. Ali was being uncooperative by highlighting some of the ways in which he provided the authorities with as much information as he had, in addition to photographs and fingerprints. Nordheimer held, “To hold a person indefinitely, solely on the basis of noncooperation, would be fundamentally inconsistent with the well-established principles underlying ss. 7 and 9 of the Charter.” In the end, Mr. Ali’s Charter rights prevailed. Citizen or not, Mr. Ali was afforded equal protection under the law, a victory for all Canadians and an affirmation of the values our country strives to uphold.

Pressure for changes to the detention framework has been mounting for some time. In May 2016 more than 100 lawyers, legal scholars, and specialists called on the Ontario government to cancel the federal-provincial agreement that allows transfers of detainees to provincial criminal jails. This submission highlighted the poor conditions in these jails and the related human rights concerns. In August 2016, Public Safety Minister Ralph Goodale announced that $138 million would be spent to improve Canada’s immigration detention centres, including establishing a body to oversee the CBSA’s actions to ensure that they conform to international human rights standards. Most recently, in April 2017, the CBSA released the “New National Immigration Detention Framework”, outlining a set of intentions to change the current framework. Some of these initiatives include: increasing health care for detained individuals, lowering the number of minors, vulnerable persons and long term detainees in detention, and reducing the reliance on provincial correctional facilities for immigration detention. The framework also proposed working to implement an expanded national Alternatives to Detention (ATD) program. Two proposed programs include community supervision/guardianship and electronic supervision, which would promote the general goal of using detention as a last resort.

Hopefully these initiatives, in addition to Mr. Ali’s case, will incite change. Alvin Brown is currently challenging Canada’s immigration detention practice in Federal Court. Mr. Brown spent five years in a maximum-security provincial jail while awaiting deportation to Jamaica. Mr. Brown’s lawyer, Jared Will, contends that the practice of indefinite immigration detention is unconstitutional, arguing that a six-month limit should be imposed. In addition, Mr. Brown is seeking Charter damages as a remedy for the violations of his Charter rights. In addition to violations of his s. 7 and 9 Charter rights, Mr. Brown is claiming cruel and unusual punishment, a s. 12 violation, due to his mental health issues that persisted during his detention. Mr. Brown is seeking to recover $1,500 for each day of his incarceration. This case will mark the first time that a federal court will hear a challenge to the constitutionality of the practice of indefinite detention. It is being heard by Justice Simon Fothergill and is set to be decided sometime this summer.

Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law. Norman Yallen is an upcoming 2L JD Candidate at the Faculty of Law.

*Sources omitted

Asper Centre’s Statement in Response to U.S. Executive Order

Posted on by Tal Schreier

The Asper Centre for Constitutional Rights shares our deep concerns with the January 27th executive order made by President Trump preventing individuals from the predominantly Muslim countries of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from temporarily entering the United States.

The Asper Centre for Constitutional Rights supports Prime Minister Justin Trudeau’s statement about Canada welcoming refugees and immigrants to our country.  We also support Canadian civil society organizations’ calls on the federal government to suspend the Safe Third Country agreement effective immediately, as sending asylum seekers back to the U.S. will put Canada in breach of its legal obligations in terms of the UN Refugee Convention and our domestic laws.

The Canadian Charter of Rights and Freedoms specifically prohibits discrimination based upon race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.  The Asper Centre for Constitutional Rights is honoured to promote our Charter as the supreme law of our land and to do everything within our mandate to ensure that our Charter is being respected.  This includes training and supporting current and future Constitutional law lawyers, who have a clear role to play in challenging this unconstitutional executive order and any other violations of the Constitution.   

The Asper Centre for Constitutional Rights supports the rights of refugees, immigrants, and dual citizens and we commit to ensuring that equity, diversity, and inclusion continues to be an essential part of our Canadian landscape.