Freedom of Expression and Hate Speech – RMCLA’s Position

This article is a reposting of an RMCLA position paper. On October 17th 2017 an event at the University of Calgary discusses free expression and hate speech. This article summarizes RMCLA’s position on the issue.

RMCLA Position Paper

In 2013, the Rocky Mountain Civil Liberties Association campaigned to have section 3 of the Alberta Human Rights Act repealed. This section refers to expressions of discrimination and hate speech. The following document outlines RMCLA’s most recent position on the Alberta Human Rights Act as it refers to matters of free expression.

RMCLA is not only mandated to ensure the protection of expression for Albertans— it is also within its mandate to promote the fundamental dignity and worth of all Albertans. As such, it abhors acts of discrimination and hate. RMCLA realizes that conflicts and dilemmas may arise when the protection of differing rights may be required, such as protection of both fundamental dignity and free expression. RMCLA’s position on free expression is not only intended to best protect free expression, but also to forward what we believe to be the best way to also uphold the fundamental dignity of all persons.

RMCLA’s Position

After considerable study of the Act and its possible consequences, RMCLA suggests that Section 3 is far too broad and infringes on citizen’s free expression. Section 3 of the Alberta Human Rights Act should be repealed. Failing its full repeal, the minimal repeal of Section 3 (1) (b) should occur.

Section 3

The applicable portions of section 3 of the Alberta Human Rights Act read:

3 (1) No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that

(a) indicates discrimination or an intention to discriminate against a person or a class of persons, or

(b) is likely to expose a person or a class of persons to hatred or contempt

because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons.

(2) Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject.

Objection to the Act

The fundamental reasons for RMCLA’s position are related to use of the words “likely to expose” in the statement of 3(1)(b): “likely to expose a person or class of person to hatred or contempt.” RMCLA is of the position that the wording of section 3 has two fundamental problems.

  • “Likely to expose”  is far too broad and captures offensive, humiliating, disdainful or hurtful speech that is subjectively held by the target of the speech, or by an audience in receipt of the speech; and
  • “Hate or contempt” is not clearly worded. These terms are complexly interpreted in law and not well understood by the public; the public’s common understanding and legal interpretation are quite different. As they are written, the wording is vague and remains undefined for the public leading too often leading to overly broad and subjective interpretations that include speech (as noted above) that is not defined legally as hate or contempt.

Issues related to the above objections

As written, Section 3 may lead to an overabundance of complaints because the section is open to subjective interpretation. Despite Supreme Court of Canada and other court rulings on hate speech, the human rights complaint process is a complaint-driven system. As such, the Human Rights Commission must accept and consider all complaints, even those that are not hate speech per se and merely offensive, humiliating, disdainful or hurtful speech. It may be that such complaints are rejected by the human rights commission, but once a complaint is submitted, resources must be allocated to review these files; scarce resources that could be used to deal with other cases that are more appropriately the focus of the Commission.

The section can also have a counter intuitive effect. Rather than protecting people vulnerable to discrimination, it could be applied to speech intended to counter hateful or offensive speech. If a well-intentioned person hopes to counter/critique discrimination or hateful speech and the recipient of the message is offended, then the recipient could lodge a human rights complaint against the well-intentioned person. This of course would have the effect of squelching forms of counter speech and critique of hate/discrimination. The section of the Act also provides no defences to the complaint, such as truth, which may lead to the anomalous situation that a true comment, made to counter discrimination, may nonetheless be found to impugn s. 3.1. Further, that true comment would not be protected by the Charter of Rights due to s. 3.2 deeming that nothing in the section interferes “with the free expression of opinion on any subject”.

In both of the above scenarios, we can see many possible examples of suppression of free expression. The theme of suppress the messenger, including the message, is clear. It becomes very difficult to police which messages are objectionable and which are not when terms of the legislation are not well defined or invite overly subjective and broad interpretation.

It should also be noted that the Human Rights Commission and complaint process is also not well understood by the public. It is often seen as having a quasi-judicial process that is assumed to be far less process-oriented or to require less bureaucratic response than a court. This of course is not necessarily true and the process to lodge a complaint is a very detailed process that can sometimes be best conducted by legal counsel; it can be lengthy; and cost both the complainant and respondent considerable time, money and resources. For people with little financial resources and/or with cognitive challenges, even quasi-judiciary processes can act as a significant hindrance to resolution of issues, at times not different than what might be seen in a regular court scenario (it is an access to justice issue that requires further exploration and is beyond this scope of this position paper).

Supreme Court Clarification of Hate Speech

Understanding what does and what does not constitute hate speech is a complex issue. Courts have tried to clarify the issues surrounding legislation but this has not necessarily made the clarification issue easier.

The most recent decision that is often quoted to support keeping Section 3 is the Supreme Court of Canada’s decision Saskatchewan (Human Rights Commission) v Whatcott. The case struck down part of the Saskatchewan Human Rights Code’s section 14, while upholding other parts of the section that were very similar to those in Alberta’s section 3. The parts of section 14 that were struck down were NOT similar to those in Alberta’s section 3.

The Whatcott decision did clarify that the legal interpretation of human rights legislation related to hate speech and uses a very high test for setting limits on freedom of expression. The decision eliminated the use of words in the Code that were too close to limiting expression that might be deemed as merely offensive by striking down the words, “ridicules, belittles or otherwise affronts the dignity of the person.” It upheld limiting free expression, even if it was of a religiously held belief, if the expression was of the most extreme nature and “exposed” an audience to hatred.

The Whatcott decision noted three elements of hate speech that must be present to be considered hate speech and not simply offensive speech:

  1. Objectively, “a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred.”(2013 SCC 11, [2013] 1 S.C.R. 467, p.5)
  2. The message is that of an extreme manifestation… “Hatred or contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risk causing discrimination or other harmful effects.”(p.5)
  3. One must consider the effect of the message, not the intent. “Tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience,…” (p.5)

Some have suggested that because the wording of the Saskatchewan Code that is synonymous with the Alberta Act was not struck down that this should be a rationale for keeping Section 3. However, it should be noted that the Supreme Court did not comment on how human right commissions or tribunals should functionally deal with complaints, only that the legal interpretation of terms in relation to hate has a high bar. This high bar goes far beyond what most people might personally define as a hateful statement, which more often refers to offensive, humiliating, disdainful or hurtful speech. The Whatcott decision noted that even statements which are malicious, libellous, and false do not by themselves meet the test for hateful speech. This underlines the importance for legislation to have extremely clear wording, something the Alberta legislation lacks.

Having a Supreme Court decision that seems to support a section of an act may confirm that the legislation is constitutional but does not in itself make good law or public policy. Legislation that falls within the parameters of Supreme Court’s decisions may be a necessary component to law-making, but this in itself is not sufficient. Good laws not only ensure laws are constitutionally valid, but also that it is good public policy, that justice is served and the public follows the rule of the law. It remains to be seen if the Human Rights Commission can handle complaints based on free speech in reasonable amounts of time while allowing those with the least resources to access the complaint process. The Supreme Court decision also does not functionally stop submission of complaints that fall below the high bar for hate speech. For these reasons alone, the risk for suppression or chilling of speech remains high and a  good rationales for repealing the section as written remain.

The Criminal Code and Hate Speech

The Canadian Criminal Code does have a provision for hate speech. Section 319 (2) states:

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

The same high bar for defining hate speech applies to the Criminal Code as it does for human rights legislation. However, the Criminal Code also provides defences to the charge- among them truth, the good faith expression or attempt to establish by argument an opinion on a religious subject and good faith intent to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada. All of these are absent in our provincial human rights legislation. Given the Whatcott decision and its three criteria for hate, in Alberta and other provinces that have similar hate speech legislation, the Criminal Code is also only used for incidents of an extreme nature. When the two type of legislation are placed side by side and the Supreme Court’s criteria are applied to both, it is clear the legislation overlaps. However, the criminal applications of hate incidents have a far greater penalty.

It should be noted that for many of the reasons cited above, the Federal Government has repealed similar hate legislation (section 13) in its Canadian Human Rights Act, preferring to leave these cases to the jurisdiction of the criminal courts.

Some people argue that because they do not see large volumes of charges being laid under the Criminal Code, that human right legislation is needed. These arguments negate a myriad of issues with the application of hate speech legislation, and instead make an immediate leap (not logically) that the Criminal Code must be a failure. Such simplistic interpretations of legal applications of hate speech are not convincing and negate the successful applications of hate speech criminal law. Given the hate speech laws are designed and upheld to be reserved for the most extreme in nature, and the relatively liberal nature of Canada, one would expect very few cases to go forward in law.

Another point referring to the provincial legislation versus federal legislation is that given there is Criminal Code referring to hate speech, there is no need for similar provincial legislation. In fact, criminal matters are federal legislative jurisdiction, not provincial. Provincial legislation may actually be legislation in areas reserved for federal jurisdiction.

Purpose of Human Rights Acts

It should be noted that human rights acts were not intended to address criminal matters. These acts were intended to address discrimination in the application of services, employment and housing. They were never intended to address or suppress free expression. RMCLA believes the Human Rights Act needs to return to its base:  to protect people from acts of discrimination, rather than policing people’s expressions and feelings.

Not all jurisdictions include the words “expose a person or a class of persons to hatred or contempt” or even reference hate. For example both Ontario’s and Manitoba’s Human Rights Codes do not have references to hate, but do retain references to statements regarding discriminatory acts or incitement of discriminatory acts. It is doubtful that inclusion of Alberta’s Section 3(1)(b) has led to fewer acts of hate, hateful statements, or acts of discrimination on a per capita basis than other provinces. Each province has its successes and failures regarding respecting human dignity, but the human rights successes need considerable attention in jurisdictions that do not have legislation limiting free expression; why is it human dignity is similarly respected (in some cases more so) in other provinces that do not have synonymous legislative statements to Alberta’s Section 3(1)(b)?

Conclusion & Discussion

For the reasons stated in the above position paper, RMCLA suggests that Section 3 of the Alberta Human Rights Act is far too broad and infringes on citizen’s free expression. Section 3 of the Alberta Human Rights Act should be repealed. Failing its full repeal, the minimal repeal of Section 3 (1) (b) should occur.

RMCLA would suggest to the public that there are far better means to address disdainful/hateful speech than through the use of human rights commissions and tribunals. If the goal of human rights acts are to promote a society where we all live well together, then there are more effective responses to hateful expressions that enhance free expression.

  • Critiquing the message and messenger. Exposing the person who disseminates hateful and disdainful messages to the public as a person with inaccurate messages and/or undignified messaging, plus replacing the message with ones that uphold respect and dignity for all is the most effective way to ensure dignity for all remains a fundamental principle of our communities.
  • Proactive messaging. Ensuring ongoing messages and education of the public occurs to uphold dignity for all, tolerance, understanding of differences, and so on is a far better way to create community values, rather than waiting for hateful messages to occur. It also gives those in positions of low status/power and opportunity to become involved in building a better community and a voice for encouraging dignity for all.
  • Debate. When offensive beliefs seem to take hold, then debate the message in medias, news, forums, and other types of debate. Messages that uphold respect and dignity for all tend to win over other types of negative messaging.
  • Advocacy. Sometime people with in positions of low status/power and opportunity don’t feel empowered to speak out. This underlines the great need to those who are more able to advocate for the rights and dignity of others.
  • Anti-bullying responses. Bullying in the current era of social media is noted as a problem. Assisting others to counter bullying, encourage respectfulness and so on builds an environment of respect.
  • Public condemnation. When hate does occur, then publicly condemn acts and statements of hate with your own condemnation.
  • Protest. Sometimes when hate and discrimination occurs in institutions or by groups of people, then larger statements are required. Protests that attract the media can be an effect means to counter statements of hate and encourage a dignified society.
  • Community rallying. Don’t wait for hate. Rally people together from time to time to give expressions of dignity. A community that sees dignified actions often becomes a society based on dignified values.
Posted in Freedom of Expression | Comments Off

Civic Election Candidate Responses to RMCLA Questions

The Rocky Mountain Civil Liberties Association asked candidates in the Calgary  2017 civic election five simple questions about privacy, transparency, and access to information issues. Their responses can be seen this downloadable document: Civic Election Survey Responses.

Only a few candidate took the time to respond to the questions. The questions are below.

QUESTION 1: What changes will you make to reveal details about the extent the City’s closed-circuit camera surveillance system, and the location of the surveillance, traffic, and other cameras monitoring  the streets, buildings, properties, and people in Calgary?

QUESTION 2: What is your position on surveillance and monitoring of Calgarians who park in residential parking areas?

QUESTION 3: What is your position on sharing information about individuals whose images and conduct is captured on City monitoring systems, in particular with the Calgary Police Service?

QUESTION 4: What is your position on holding Council meetings in camera?

QUESTION 5: What steps will you take to ensure that access to information (as required by Alberta’s Freedom of Information legislation) is easier, faster, more transparent, and proactive?

Posted in Access to Information, Right to Privacy | Comments Off

Wake up and Smell the Civil Liberties!

July 5, 2017, Calgary, AB – Let me begin by stating in no uncertain terms that I do not condone the killing of anyone, for any reason. Nor do I condone the conscription of children into their parent’s wars. I completely disagree with the use of torture, coercion, and threats of life-long imprisonment to extract confessions for crimes. And I get angry when governments pay out millions to anyone, as consequences for their bumbling efforts to “speak to their base.”

The Omar Khadr case raises all of these issues: terrorism, child soldiers, government use of torture, bad legislation, restriction of civil liberties to protect safety, and poor adherence to the rule of law. Fundamentally, the case is about consequences that result when governments fail to follow — or simply ignore — the rule of law and fail to uphold all citizens’ fundamental rights and civil liberties. It is this issue the Rocky Mountain Civil Liberties Association finds most troubling.

Omar Khadr was a child soldier conscripted by his father to fight in Afghanistan against Western soldiers. The Americans claim he killed a soldier and wounded another; and at least one US judge who awarded a default judgement of $134.2 Million to the widow of an American soldier killed in Afghanistan appears to believe that claim. Omar Khadr claims he does not remember throwing a grenade or much else about the firefight in which he was badly injured. He was taken to Guantanamo prison where he languished as the youngest person in the complex. While there, he was tortured before being interrogated by Canadian officials who gave their findings to the Americans.  Khadr was told that he would stay in Guantanamo for life unless he confessed. So, he did. To avoid life-long imprisonment, he confessed to killing an American soldier but to this day claims he did not.

A general timeline can be read at: http://www.cbc.ca/news/politics/omar-khadr-s-legal-odyssey-from-guantanamo-bay-to-apology-1.2987034 and http://www.cbc.ca/news/canada/key-events-in-the-omar-khadr-case-1.1153759 Some addition references can be found through: https://en.wikipedia.org/wiki/Omar_Khadr

The 2010 Supreme Court of Canada decision about the government actions concerning Khadr’s imprisonment and treatment in Guantanamo is clear: the Canadian Government was complicit in his torture and ongoing imprisonment to obtain a confession. The 2010 decision states:

Canada actively participated in a process contrary to its international human rights obligations and contributed to K’s [Omar Khadr’s] ongoing detention so as to deprive him of his right to liberty and security of the person, guaranteed by s. 7 of the Charter , not in accordance with the principles of fundamental justice…. (for a summary of these principles, read the CCLA submission to the SCC). The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

K is entitled to a remedy under s. 24(1) of the Charter .  The remedy sought by K — an order that Canada request his repatriation…

Under the Harper government, Khadr returned to Canada. He has since filed a 20 million dollar claim for the abrogation of his civil liberties. Now, the current Government of Canada has settled out of court for over 10 million dollars, the same amount that the Harper government paid out to settle the Maher Arar case of wrongful imprisonment and torture.

In both cases (and others), the Government of Canada did not do its job to uphold human rights and civil liberties of all of its citizens, and all Canadians have to pay for that choice.

Let’s be very clear about what the result might have been if the rule of law and civil liberties had been upheld in this case. One scenario would have seen Khadr returned to Canada where he would have faced a proper trial, and found guilty of the crimes he is alleged to have committed. Under this scenario, he would likely still be in jail and no payout would have occurred. Another scenario might have been that Khadr was found to be innocent of the charges and released from jail, and no payout would have occurred. A wide range of other scenarios can also be envisioned with a person accused of multiple crimes. Regardless, in all these scenarios, the Government of Canada would have upheld all of our rights and liberties — Khadr’s included. There could be no argument that human rights and civil liberties were not upheld, and the Government would not now be paying millions to Khadr in compensation.

This case is an unfortunate but very real example of what happens when human rights, civil liberties, and the rule of law are not protected. Rather than do the right thing, and in a rush to appeal to its political base, the government chose to undermine rights and liberties. The consequence is that all Canadians are now paying the price. It angers many and no one comes out as a winner. A further consequence is that we might never know if the 15 year old Khadr is truly guilty or innocent of the charges.

Perhaps it is time for governments in Canada and across the globe to wake up and smell the civil liberties before taxpayers are saddled with further needless payouts.

A true test of a healthy and free democracy is whether its elected representatives stand up to protect the rights and liberties of its citizens, even in the face of immense pressure to do otherwise. Paradoxically, when governments fail in this obligation, individual liberties are eroded, those fighting against democracy seem to win, and the rest of us all lose, simply left feeling outraged.

Kelly Ernst, President
Rocky Mountain Civil liberties Association

An edited version is printed in the Calgary Herald, July 7, 2017

Posted in Access to Justice, Fundamental Human Rights, Rule of Law | Comments Off

RMCLA Applies for Intervenor Status in Supreme Court Case

Free expression in Alberta has been dealt a huge blow by the Alberta Court of Appeal, and RMCLA is applying for intervenor status as this case proceeds to the Supreme Court of Canada. We are doing this to protect your freedom of expression and we could use your help.

Here’s why:
Unless the Court of Appeal’s decision is reversed it could mean that, when critiquing politicians or government officials, they could have you charged under the Criminal Code if they don’t like your comments.

Here’s what happened:
Karen MacKinnon, a former Drumheller town councillor and Alberta resident, was charged under under section 301 of the Criminal Code after posting some critical remarks on Facebook about Drumheller town officials..

What didn’t come to light until after her conviction was that section 301 had been declared unconstitutional in Alberta nearly 20 years before. Section 301 has also been ruled unconstitutional in four other provinces —Saskatchewan, Ontario, New Brunswick, and Newfoundland and Labrador. Despite that, section 301 remains in the Criminal Code and can still be used to silence people — especially when comments are about those in a position of power.

What’s worse is that, in March of 2017, the Alberta Court of Appeal held that Ms. MacKinnon could not challenge the constitutionality of section 301. That’s why Ms. MacKinnon has filed an application for leave to appeal that decision to the Supreme Court of Canada and is challenging the constitutionality of section 301 of the Criminal Code.

Here’s the bottom line:
If this decision remains unchallenged, it will directly affect you, your family and your friends. In a digital age where free speech is both more accessible and readily disseminated than ever before, critical comments you might make about actions of your community politicians and officials — and even remarks that are attributed to you — could end up being used against you.

We need your support to protect free speech in Alberta.

We need to show the Supreme Court of Canada that freedom of expression is important to Albertans, and that the government and powerful people should not be able to rely on an unconstitutional law to silence you and me for making comments they don’t like. We also need the Court to declare that section 301 is unconstitutional everywhere across the country, so that all Canadians can enjoy their Charter protected right to free expression.

This could be a very long and costly fight. Until this ruling is reversed, this assault on Albertans’ freedom of expression will be allowed to continue.

Without your help, we’ll continue to see people silenced, and powerful people able to take advantage of the unconstitutional Criminal Code provisions to silence their critics.

Help us fight back.

Your gift of at least $20 or more will empower us to ensure your voice can be heard, so please click here to donate now.

This is about more than just law and policy. It’s about who we are as a nation: if you believe there is nothing Canadian about undermining our fundamental rights, please join us in this fight before time runs out.

Donate & Become a Member
RMCLA cannot do its work without your financial support. We can only offer events, conduct research, publish articles reports or newsletter, and stay on-line with donations from you. If you want a voice for civil liberties in Alberta, then please give a donation and your first $20 goes toward your membership. Donate today at: http://rmcla.ca/donate.html

Or, mail your donation payable to:

Rocky Mountain Civil Liberties Association

c/o Alberta Civil Liberties Research Centre
Murray Fraser Hall, University of Calgary
2500 University Drive N.W.
Calgary, Alberta     T2N 1N4
(RMCLA is a not-for-profit organization and does not have charitable status, so cannot give charitable receipts)
Posted in Access to Justice, Democratic Rights, Freedom of Expression | Comments Off

Carding: More and more records keep getting added to the pile

Here is an article from Halifax, noting that the problem of carding or street checks and collecting information around the practice is a problem across the country.

By: Kaila Jefferd-Moor, The Coast

Halifax police are still waiting for an independent analysis of its street check data before deciding what, if any, action to take on the controversial practice.

In the meantime, more and more records keep getting added to the pile.

A January CBC investigation analyzed over a decade of Halifax Regional Police data and found that Black residents of HRM were three times as likely to be street checked by police as white people. In response, HRP promised to analyze the information more closely. But that analysis is on hold in favour of an independent review being conducted by the Nova Scotia Human Rights Commission.

“We need to do more research,” Christine Hansen, director of the NSHRC, recently told HRM’s Board of Police Commissioners. “We need to have an expert look at that, and then we’re gonna come back to the table and talk about what’s next, and what’s next depends on what we find.”

There are two types of files produced by an HRP officer from a street check: Instance and entity records.

Instance records have about 15-20 fields to enter information, says HRP research coordinator Chris Giacomantonio. Those fields include X/Y coordinates, street address, division, the officer involved, notes and the reason for the check. The check could be made for a person, or even for an object or place.

“So, if someone found a needle on the sidewalk where someone might not have expected intravenous drug use to happen, they might enter that as a street check as well,” Giacomantonio says.

An entity record is created if the check involves a person, and has a limitless set of fields for everything from birthdate to ethnicity, height and weight, eye colour and body modifications.

“A lot of those fields are populated through prior contact with the criminal justice system,” says Giacomantonio. “By and large, the street checks that Halifax Regional Police conduct are involving people who have past criminal history or past involvement with the justice system in some other way.”

All of this collected information is stored in Versadex, the database housing system that HRP uses to store criminal records and other information. Versadex is connected to a Police Information Portal which connects “90 percent of all police systems,” says HRP communications advisor Cindy Bayers. Any police department connected to PIP has access to all the Versadex records—including street check information—housed in HRP’s system.

Data sharing amongst law enforcement agencies—especially of non-criminal personal information—has been condemned by privacy and civil rights advocates elsewhere. In Ontario, local and provincial police routinely share “carding” information with RCMP and the Canadian Security Intelligence Service.

Halifax’s street checking policy looks a lot different than Toronto’s version of carding, says HRP. Officers aren’t just asking for IDs. Any interaction with police, whether it be in person or observed from afar, produces a record.

But if we’re going to compare ourselves against the standards of carding practices as a scale of judgement, there are other things to consider. As of January 1, Ontario has banned police from carding citizens for any reason other than during a traffic stop, while arresting or detaining someone, executing a warrant or investigating a specific crime.

Haligonians aren’t given the same courtesy of knowing when they’re being street checked, as an HRP street check can involve just a visual sighting of a person or object.

The Board of Police Commissioners, meanwhile, doesn’t yet have any policy in place on street checking practices. Until the NSHRC finishes its analysis and the board updates its internal policies, it appears the surveillance practice will continue in full force.

Marcus James was in attendance at a panel discussion on street checks that took place back in March and spoke about his own experiences being stopped three times by police while closing up the Halifax North Memorial Library. Continuing the practice means police are ignoring the pain felt by the Black community, he says.

“How many people need to come forward and share their pain, their experiences, before [HRP] is willing to sit down and look at bringing that to an end?”

Racial self-policing is the psychological result of being 1984’d by the police. The fear of the unwarranted attention given to specific people based on race causes them to learn behaviour in the hopes of diminishing the extra heat on their back. As Toronto journalist Desmond Cole writes in his award-winning article, “The Skin I’m In,” discriminatory surveillance causes people to feel like prisoners in their own city.

“Once you’re accused enough times, you begin to assume your own guilt, to stand in for your oppressor,” writes Cole.

James says he’s uninterested in sharing his own stories anymore until the police and the municipality step up.

“I just feel that until some real peaceful conversations, where we’re all at the table and looking at solutions on how we can move forward…for me, it’s really too painful.”

(Source: < https://www.thecoast.ca/halifax/checking-up-on-street-checks/Content?oid=7790384 >)

Posted in Right to Privacy | Comments Off

2017 National Data and Privacy Congress

RMCLA is pleased to announce that it is sponsoring the 2017 National Privacy and Data Governance Congress. We encourage you to register for this congress. See: https://pacc-ccap.ca/congress/

WHEN: April 5, 6, & 7, 2017

WHERE:
Carriage House Inn in Calgary, Alberta.
9030 Macleod Trail South, Calgary T2H 0M4
Call toll-free to book your stay: 800-661-9566 or 403-253-1101

The Congress brings together regulatory authorities and thought leaders from industry, government and academia to share insights about technological trends and regulatory developments that affect public and private sector organizations’ efforts to protect data and comply with privacy laws.

This year’s theme — ‘A World of Change’ — will focus on the most critical and timely privacy and data protection issues facing organizations today: those that foretell significant consequences for employers, employees and policy makers. As you’ll see from the agenda, the Congress content will be immediately relevant to you and your organization.

The issues being discussed at the Congress also have a direct impact on our civil liberties so, for the third year, RMCLA is a key supporter of the event and several Board members will be involved.

The Congress is about quality, not quantity, so registration is strictly limited. You can register online (at https://pacc-ccap.ca/congress/register/). If several people from your organization would like to attend, let me know so that we can arrange a group discount.

Please contact Sharon Polsky directly if you have any questions about the event or the Privacy and Access Council of Canada.

Register: If you have not already, then please register at: https://pacc-ccap.ca/congress/register/

Agenda: You can see the agenda at: https://pacc-ccap.ca/congress/agenda/

Speakers: There is an incredible line-up of speakers (see: https://pacc-ccap.ca/congress/speakers/).

Get Involved at RMCLA’s Annual General Meeting

RMCLA would like your involvement. We are currently seeking new board members. We are also seeking volunteers to sit on committees to help research issues and press for change. If you are interested in becoming involved, email secretary@rmcla.ca .

WHEN: Thursday March 9, 2017 at 6:30 pm

WHERE: Kahanoff Centre,
Room 202, 105 12 Ave S.E., Calgary T2G 1A1
(Centre Street and 12th Avenue S.W.)

RSVP: If you have not already, then we would like your RSVP to help plan for the meeting. Please RSVP at: secretary@rmcla.ca

Donate

RMCLA cannot do its work without your financial support. We can only offer events; conduct research; publish articles reports or newsletter, and stay on-line with donations from you. If you want a voice for civil liberties in Alberta, then please give a donation. Donate today at: http://rmcla.ca/donate.html

Kelly Ernst, President, Rocky Mountain Civil Liberties Association

Posted in Uncategorized | Comments Off

Celebrating Canada’s Multiculturalism in Alberta

You’ve heard it before: Canada is a mosaic. A multicultural society with people from around the world. There’s even a photographer in Toronto who’s been photographing people from 190 countries — and they all live in Toronto. Talk about a multicultural city!

Although our country was founded on Judeo-Christian values, and we are all are equal under the law and the Charter of Rights and Freedoms, it’s not that simple.

It was a lot more simple when our choices were limited. Like when the only choices were vanilla or chocolate ice cream.

You could go to public school or Catholic school. Church or synagogue. In some of the larger cities you could find a mosque or a Buddhist temple. But that’s all changed.

Now we have public schools and private schools. Religious and not religious. With instruction in English, French, and languages from countries around the world that aren’t English or French.

We can still go to church and synagogue. But now it’s a lot easier to find a mosque, a temple, and houses of worship with congregants from major and minor religions around the world.

Want to be a Pastafarian and go to a Church of the Flying Spaghetti Monster? You can do that too.

And even though we’re equal under the law and the Charter, the religious observances and traditions of some Canadians are a little more equal. They receive tremendous attention, while others are shunned or ignored.

Now, sure, there’s only so much time in a day, and only so much space for news articles in any day.

But there’s 365 days in a year, and many of those are taken up with religion. And if you want to be sure of the day, you can consult the Saint of the Day app for iPhones.

I haven’t seen anyone do that, but I have seen many people spend a lot of time and energy trying to avoid religion. Or at least trying to get other people to avoid it.

For years now we’ve been told not to wish anyone a “Merry Christmas”. It might offend someone. And it’s just not acceptable any more. Yet every year — and it gets earlier and earlier every year — we see all manner of trees decorated for Christmas. How long before we see Halloween pumpkins decorated for Christmas?

In the meantime, we don’t have to look at our smart phones to find to what time the sun will set. Sunset hours are announced on radio stations and published in major media throughout the month of Ramadan. How is it, though, that Friday sunset — the weekly start of the Jewish Sabbath — isn’t given the same attention at any other time of year?

In 2015 the Supreme Court of Canada ruled that religious prayer at city council meetings is unacceptable. It’s just unacceptable. The justices of Canada’s highest court said that, when the Mayor of Saguenay opened a public meeting by reciting a prayer, it violated an atheist’s freedom of conscience and breached the state’s duty of neutrality.

The decision was important to move Canada towards becoming a more inclusive country. But maybe that ruling and the separation of church and state only applies to the City of Saguenay or to the Province of Quebec. What else can it be, now that the Legislative Assembly of Alberta is formally recognizing Ramadan in a taxpayer-funded public celebration, hosted by the Speaker’s Office represented by Heather Sweet, MLA, and Deputy Chair of Committees, with remarks by the Honourable Irfan Sabir, MLA, and Ric McIver, MLA.

In almost 30 years of living in Alberta I don’t recall a time when Rosh Hashanah or Yom Kippur were recognized by any of Alberta’s political parties or systems — unless you consider that a modest ad placed in the local community newspaper is equivalent to a public event.

So where’s the problem? Where’s the balance? And where’s the neutrality?

 

Sharon Polsky

Vice President, Rocky Mountain Civil Liberties Association

Posted in Diversity, Equal Rights | Comments Off

Calgary Police data suggests Police Carding is Greatest in Diverse Neighbourhoods

May 9, 2016 – Calgary AB – The Rocky Mountain Civil Liberties Association (RMCLA), through an access to information request, received partial information from the Calgary Police Service (CPS) on carding (in Calgary they are called Police Check-Up Slips). For more background on the issue of carding and greater details regarding the released information, you can read our background article.

The CPS – FOIP (Freedom of Information and Protection of Privacy) Section provided a partial reply and indicated that it would only disclose a full set of information upon payment of a more than $14,000 fee. For example, information about the number of tickets written and charges laid as a result of carding, the number of field checkup slips entered into the Police Information Management System (PIMS) and sharing with other police services was not made available.

The second set of information disclosed by CPS revealed 219,972 carding events in Calgary from 2010 to 2015. The data suggest that these check-ups have reduced from 46,081 checkup slips in 2010 to 27,735 in 2015.

The CPS data also indicates that the greatest frequency of carding occurred within districts that include neighbourhoods with high diversity and a high proportion of low income people (i.e. Districts 1 which includes such neighbourhoods as the Beltline and 5 that include neighbourhoods such as Saddletown) compared to other parts of Calgary.

The reasons why checkups appear to occur more frequently in neighborhoods of greater diversity it is difficult to ascertain because the police did not disclose more information. RMCLA believes this issue is of public interest and ought to be discussed more broadly among Calgarians.

Given carding is a matter of public interest, RMCLA requested twice and was declined to have the data released without payment. Regardless, RMCLA remains open to meet with the Calgary Police Service to publicly discuss the CPS policy, procedures, data being collected, and circumstances around carding and to foster greater clarity about carding in Calgary. Data released is below.

District
Check-Up Slips in 1 2 3 4 5 6 7 8 Total
2010 8,115 5,381 4,163 7,498 6,756 6,706 3,368 4,094 46,081
2011 7,528 6,433 4,858 5,579 5,866 4,853 3,975 3,074 42,166
2012 6,648 5,074 4,421 4,182 5403 3,869 4,093 2,552 36,242
2013 5,347 4,299 2,893 6,112 5,090 3,011 3,631 3,095 33,478
2014 5,060 4,247 2,852 4,656 7,100 3,904 3,458 2,993 34,270
2015 4,749 3,964 1,837 3,935 5,145 2,997 2,507 2,601 27,735
Total 37,447 29,398 21,024 31,962 35,360 25,340 21,032 18,409 219,972

 

District
Patrols 1 2 3 4 5 6 7 8 Total
2016 173 80 80 116 108 100 88 80 825

 

RMCLA is grateful that CPS provided some basic information without any charge, however that information remains insufficient to answer basic questions associated with our inquiry. We hope that the CPS comments on their data and releases more data to the public in their commentary so that the public may be better informed about the issues surrounding police check-up slips.

About RMCLA

The Rocky Mountain Civil Liberties Association is an Alberta organization founded to promote respect for and observance of fundamental human rights and civil liberties. Our work aims to defend and ensure the protection of individual rights, freedoms and liberties. www.rmcla.ca

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Open Letter regarding Alberta Education’s Guidelines to Respect Diverse Sexual Orientations

Today I read with great interest Bishop Henry’s letter concerning the Minister of Education, Hon. David Eggen’s, requirement that Board Chairs of Public, Separate, Francophone and Charter School Boards respect diversity and foster a sense of belonging across Alberta such that their board policies reflect Alberta’s regulations by March 31, 2016.

As the Chairperson of hearings regarding Gay-Straight Alliances (GSAs) in Alberta schools that heard from people of all ages, faiths, genders, and political stripes across Alberta, I feel compelled to correct statements made by Bishop Henry.

He stated that, “GSAs and QSAs are highly politicized ideological clubs which seek to cure society of ”homophobia” and “heterosexism,” and which accept the idea that all forms of consensual sexual expression are legitimate…” – See more at: http://www.calgarydiocese.ca/messages-from-the-bishop/1367-pastoral-letter.html

This statement is quite contrary from the finding of our hearings and final report that were reflected in the legislation passed in the spring of last year. It is a clear misunderstanding of what the mandate of a GSA actually entails and the essence of respecting diverse sexual orientations in Alberta schools.

I feel it is quite important to address this misinformation and correct Bishop Henry by repeating a few key pieces of information contained in our report. For the entire report, see: http://www.rmcla.ca/GayStraightAllianceFinalReportRMCLA2015.pdf

It should be noted that Bishop Henry or a representative of his office was invited on multiple occasions to participate in our hearing process. Our invitations were declined at each attempt. It is also important to note that our hearing process did include input from many Catholics, including Catholic school children who were some of the most compelling speakers at our hearings.

As we concluded from our hearings, “GSAs are voluntary student-centered school clubs open to all students. As with chess, math and knitting clubs, forming, attending, and participating in GSAs is entirely voluntary: There is no mandatory attendance required of any student; it is a club open to all students.” The legislation and subsequent Alberta Education guidelines on the matter did not change this core component of a GSA.

Our process noted eight common hallmarks articulated by people associated with these clubs:

  1. “A school club. A GSA is an assembly of students as a school club; and
  2. Open to all. Membership in the club is open to all students within a school; and
  3. Voluntary participation. Members of the club all participate voluntarily: no one is compelled to attend, and all students have the option not to attend; and
  4. Free association. The club allows free association among students for friendship, camaraderie and/or support; and
  5. Free expression. Within the clubs, the students may freely and safely express themselves. GSA participants are not limited or required to discuss issues relating to any particular topic, including sexuality and gender identity; they may discuss (or not discuss) any topic they choose; and
  6. A safe place. The club is intended to be a safe and secure place for students to meet within schools; and
  7. Avoidance of harm. GSA clubs allow students to have a place to avoid interpersonal harms, such as harassment, bullying, or other forms of abusive behaviour that occur within schools; and
  8. Oriented for LGBTQ students and their allies/friends. GSA clubs are particularly oriented to assist students who perceive themselves to be disenfranchised in some manner, or who identify with some sort of diverse sexual orientation or gender identity, and their allies within schools to receive support and promote a feeling of equality with one another.”

Our public consultation process also revealed themes concerning the mandate of GSAs. These included:

  • “To encourage safety within schools. Central to the mandate of a GSA is the focus on creating, holding and maintaining a safe place within a school for gay and lesbian students, students who self-identify as a having a diverse gender identity or sexual orientation, and others who might wish to demonstrate support or friendship toward these students.
  • To encourage dignity for all within schools. GSAs are places where the value, dignity and worth of all individuals is respected and all students are welcome, and where this can be encouraged in a variety of ways that fit the composition of the group (i.e. education, advocacy, and support).
  • To provide social support relevant to LGBTQ students. GSAs are places for students to provide peer support to help students understand and cope with the complexities of being part of a minority group. For others who join GSAs, it can be a place to gain a better and more compassionate understanding of their fellow students.”

Indeed, people repeatedly noted that a GSA is often the only safe place in a student’s life, free from bullying, abuse, humiliation and intolerance they commonly experience in their daily life outside the club.

We also noted what GSAs are not. “GSAs did not resemble the misinformed and often misleading characterization of GSA clubs as dating clubs, sexual education classes, or places to recruit or inculcate people to become “gay” or “lesbian”. In fact, no evidence was presented or available from any source to indicate that GSA clubs engage in any such activities.” Further we noted that, “GSAs are not — nor are they designed or intended to be — exclusive to LGBTQ students and, rather than diminish it, in fact GSAs promote and increase inclusion at school.”

One of the key principles that is often overlooked when discussing the inclusion of all children in schools is the idea that “…ongoing abuse exists within Alberta schools, particularly directed toward LGBTQ students, and there appears to be a real, active, and proximal duty to protect students from this harm. The panellists were persuaded that LGBTQ minors are a particularly vulnerable group.” RMCLA therefore suggested that the government has a duty to act in the best interests of protecting the well-being of minors as a paramount principle to go forward in the coming months and years. The Hon. Mr. Eggen’s attempts to implement policies in schools related to LGBTQ students seem consistent in this regard.

Other points that underline the misinformation that Bishop Henry has forward are also included in our report. For these I take directly out of our report, as these excerpt speak for themselves.

There is considerable legal precedent to suggest that when “… the protection of minors is concerned, the minors’ interests must prevail over the wishes or interests of adults. While parents are free to engage in various practices, including religious practices, in certain cases the best interests of the child may be invoked to protect a child from those very practices. Even in such cases, however, the parent is still free to exercise their own religious rights or freedoms.”

“While religious and other parental rights are recognized, the courts and legislatures can and have imposed conditions on the exercise of those rights where warranted by the interests of the child. In Young v Young[1] the Supreme Court of Canada stated:

The power of the custodial parent is not a “right” with independent value granted by courts for the benefit of the parent. Rather, the child has a right to a parent who will look after his or her best interests and the custodial parent have a duty to ensure, protect and promote the child’s best interests.

The legislative provision for the “best interests of the child” does not limit and therefore does not violate the Charter right to religious and expressive freedom. Religious expression not in the best interests of the child is not protected by the Charter because the guarantee of freedom of religion is not absolute and does not extend to religious activity which harms or interferes with the parallel rights of other people. Conduct not in the best interests of the child, even absent the risk of harm, amounts to an “injury” or intrusion on the rights of others and is clearly not protected by this Charter guarantee. “Injure” in this context is a broad concept. To deprive a child of what a court has found to be in his or her best interests is to “injure”, in the sense of not doing what is best for the child. A child’s vulnerability heightens the need for protection and any error should be made in favour of the child’s best interests and not in favour of the exercise of the alleged parental right. An additional factor which may come into play in the case of older children is the “parallel right” of others to hold and manifest beliefs and opinions of their own.”

We also noted that as children age and become more mature greater autonomy is given to children.

“The mature minor doctrine underscores the importance of self-determination and choice in a young person’s life. The Supreme Court of Canada has determined that, as children mature, their capacity for making decisions on their own increase, and the influence of their parents decrease.[2] The Court noted that,

The purpose of the Child and Family Services Act is to defend the “best interest” of children who are “in need of protection” — this means, in this context, children who do not have the capacity to make their own decisions about medical treatment. When applied to young persons who possess the requisite capacity, the presumption has “no real relation” to the legislative goal of protecting children who do not possess such capacity. The deprivation in the case of mature minors is thus arbitrary and violates section 7 of the Canadian Charter of Rights and Freedoms.

The ‘mature minors doctrine’ enables and affords legal protection for the rights of persons under the age of majority to make (sometimes significant) medical and life choices, including the undertaking of practices and behaviours — such as pre-marital sex and the use of contraception — that are contrary to some religious teachings and can have serious and life—altering consequences.”

Finally, with respect to religion, “The Supreme Court of Canada has also noted that, even then, religious belief is not absolute. The Court has discussed the intersection of conflicting or differing religious views:

The purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.[3]

Statements made by the Pope, Alberta’s Catholic Bishops, as well as opinions expressed by religious leaders and followers of other faiths are all strong evidence that a debate is alive and well in religion regarding the issues of our inquiry.

Not every effect of legislation on religious beliefs or practices is offensive to the constitutional guarantee under s.2(a). The section does not, therefore, require a legislature to refrain from imposing burdens regarding the standards of education, even in the context where religion is practiced in schooling.[4]

Nor was it established that the presence of GSAs in schools has any deleterious effects on the central tenets of any religion. Given its voluntary nature a GSA in a school also does not diminish or interfere with other people’s choice to practice (or not to practice) any particular religion, even within the school.

Consequently, we do not find that there is any conflict between mandating GSAs in schools and freedom of religion.”

In this same vein of argument, we do not see that the Minister of Education is acting beyond his powers by requesting all boards have respectful policies and follow Alberta Education’s rules and regulations.

We respect Bishop Henry’s right to his own personal free expression, but that does not mean only his opinion prevails in Alberta, or elsewhere, as the definitive truth on every subject, especially when some of his opinions may indeed be incorrect.

Kelly Ernst

President, Rocky Mountain Civil Liberties Association


[1] [1993] 4 SCR 3, 1993 CanLII 34 (SCC)

[2] A.C. v. Manitoba (Director of Child and Family Services),  2009 SCC 30, [2009] 2 S.C.R. 181 http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7795/index.do

[4] (Jones v R [1986] 2 S.C.R. 284

Posted in Equal Rights, Freedom of Association, Freedom of Expression, Freedom of Religion, Rule of Law | Comments Off

National Privacy and Data Governance Congress

RMCLA is pleased to announce that it is sponsoring the National Privacy and Data Governance Congress. We encourage you to register for this congress.

Dates: from March 30 to April 1, 2016

Location: at the Carriage House Inn, 9030 Macleod Trail South, Calgary T2H 0M4
Congress Website: https://pacc-ccap.ca/congress-2/

This congress is an opportunity to learn about the most recent issues concerning your privacy rights, access-to-information, and data governance. Selected topics will examine such things as Privacy & Big Data, Surveillance in a Democracy, Intelligent Transportation Systems, Autonomous Vehicles: Data Heaven or Data Hell, and What’s Driving DNA Discovery.

Among the speakers is keynote Edwin Black. https://pacc-ccap.ca/congress-2/edwin-black/

He is the New York Times bestselling international investigative author with more than 1.4 million books in print in 14 languages in 65 countries, as well as scores of award winning newspaper and magazine articles in the leading publications of the United States, Europe and Israel. His work focuses on human rights, genocide and hate, corporate criminality and corruption, governmental misconduct, academic fraud, philanthropic abuse, oil addiction, alternative energy and historical investigation.

Editors have submitted Black’s work eleven times for Pulitzer Prize nomination, and, in recent years, he has been the recipient of a series of top editorial awards. In April 2015, Black testified before the Canadian House of Commons Standing Committee on Finance as it studied of the cost, economic impact, frequency and best practices to address the issue of terrorist financing both in Canada and abroad.

For more on the speakers and agenda, please visit: https://pacc-ccap.ca/congress-2/speakers-2/

Get Involved

RMCLA would like your involvement. We are currently seeking new board members. We are also seeking volunteers to sit on committees to help research issues and press for change. If you are interested in becoming involved, email secretary@rmcla.ca .

Donate

RMCLA cannot do its work without your financial support. We can only offer events; conduct research; publish articles reports or newsletter, and stay on-line with donations from you. If you want a voice for civil liberties in Alberta, then please give a donation. Donate today at: http://rmcla.ca/donate.html

Kelly Ernst, President, Rocky Mountain Civil Liberties Association

Posted in Access to Information, Right to Privacy | Comments Off