Access to Justice and Legal Aid Funding in Alberta and Canada

Introduction

Legal Aid Alberta’s vision statement is “[a]n Alberta where everyone can access justice and achieve fair and lasting resolutions to their legal issues.” Sadly, that vision is far from the reality facing Albertans today.

On April 16, 2018, the Calgary-based Criminal Defence Lawyers Association (CDLA) sent an open letter to Alberta’s Minister of Justice Kathleen Ganley decrying the chronic underfunding of legal aid in Alberta. After promising a revamped legal aid service in 2017, the Government of Alberta chose keep legal aid funding flat, despite the fact that Legal Aid Alberta ran out of money last fiscal year and had to receive emergency funding. In its letter the CDLA called on the Government to increase legal aid spending by 65% over four years. In the interim, the CDLA’s membership will no longer perform the many unpaid tasks which legal aid does not cover.

In 2016, the Supreme Court of Canada released its decision in R v Jordan, case under the Canadian Charter of Rights and Freedoms (Charter) which set a presumptive deadline of 30 months for Alberta Queen’s Bench criminal trials and 18 months for Alberta Provincial Court trials. After the deadline, the accused person’s Charter-protected right to a trial within a reasonable time is presumptively violated. In the wake of Jordan, governments across Canada, including Alberta, have managed to scrounge up additional justice system spending for law enforcement, court staff and prosecutors — but not for legal aid.

The Access to Justice Crisis

Legal aid funding across the country is inadequate, resulting in limited coverage by provincial legal aid societies both in terms of the types of legal problems covered and the low-income thresholds to receive coverage. The chronic underfunding of legal aid has exacerbated the access to justice crisis in Canada. Today, the justice system is inaccessible to all but the richest Canadians. The cost of legal services and lack of legal aid coverage are major factors preventing people from obtaining legal services (see here), resulting in self-representation in court and prolonged unresolved legal problems, costing the public hundreds of millions of dollars (see here). Without accessible legal services, the rule of law, upon which our free and democratic society depends, is being seriously threatened.

Within a given three year period, nearly 50% of the adult population experiences at least one legal problem which is serious or difficult to resolve and only 19% of those who encounter such a problem obtain legal advice (see here and here).

The burden of unmet legal needs falls disproportionately on Canada’s poor and vulnerable populations, who are statistically more likely to encounter legal problems.

For a country that proclaims the rule of law as one of its foundational principles, these statistics — and the reality of the situation — demonstrate a true crisis of access to justice.

Provincial and federal governments do not provide sufficient funding for legal aid. From 2003-2015, the federal contribution to legal aid across Canada’s 13 provinces and territories remained stagnant at $112.4 million annually — while the cost of delivering legal aid services during that time increased substantially (see here).

Legal aid programs cover very few legal problems outside of the criminal law context, and even within that context, they tend to only cover the most serious criminal charges with significant jail time on the line (see here). Further, only those of extremely modest means can obtain legal aid, and most of the people who do not qualify for legal aid cannot afford a lawyer. For example, in Alberta individuals who receive the maximum Assured Income for the Severely Handicapped benefit — $1,588 per month — do not qualify for legal aid (compare the AISH standard benefit with Legal Aid’s eligibility guidelines).

With so many people unable to afford a lawyer, there has been a steady increase in self-representation. The Canadian Bar Association (CBA) estimates that, in the last 20 years, rates of self-represented litigants have increased from 5% to between 10-80% of litigants, depending on the nature of the claim and level of court.

In a CBA survey, judges expressed concerns that self-represented litigants struggle to articulate their case, fail to address the most important issues, and are often overwhelmed by their emotional attachment to the case. A large body of research from the United States suggests that self-represented litigants experience significantly worse outcomes, losing in court more often and more substantially than those who obtain legal assistance (see here and here).

The problem of unmet legal needs affects more than individuals and their families: it exacerbates inequality. People from marginalized or vulnerable groups — such as women, the poor, the disabled, aboriginals, or other racialized minorities — are more likely to experience legal problems and less likely to be able to afford a lawyer (see here). The broader societal cost that comes from unresolved legal problems includes an estimated $450 million in employment insurance claims, $248 million in social assistance, and $101 million in health care costs per year.

Underfunding legal aid imposes a massive cost on the public purse and undercuts the public’s confidence in the justice system, leaving many Canadians to think that the justice system is unfair, inaccessible, and does not reflect them or their needs.

Why Does It Matter That Legal Services Are Unaffordable?

Social costs and policy concerns aside, there is a momentous problem when legal services are unattainable. On a basic level, the fact that self-represented litigants receive worse outcomes in the justice system suggests that some litigants are losing cases they ought not to have lost. In the criminal context this means wrongful convictions, which results in increased demand for facilities, and increased costs for the bureaucracy to operate jails and administer the corrections system

The golden thread running throughout our criminal justice system is the presumption of innocence, premised on the logic that “it is better for ten guilty persons to escape than that one innocent suffer” (See Blackstone’s Commentaries on the Laws of England (1765)). The Charter also protects the right of any person charged with an offence “to be presumed innocent until proven guilty according to law in fair and public hearing”.

But just how real is the presumption of innocence when only the most serious crimes receive legal aid coverage for only the most destitute individuals? How fair is a criminal trial when a person of modest means is made to do battle in our adversarial system of justice against a Crown prosecutor who attended law school and has experience running trials 4 days a week?

Beyond the presumption of innocence, nearly every Charter right is threatened when legal services are inaccessible.

The result of inaccessible legal services is a general diminishment of all civil liberties, as enforcing legal rights is beyond the grasp of all but the richest few in Canada. Who in 2018 could afford to prosecute a constitutional challenge to vindicate their right to freedom of expression or religion or security of the person? Not many. That does not portend well for the rule of law in Canada.

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National Privacy and Data Governance Congress, March 6-8, 2018

RMCLA is pleased to announce that it is sponsoring the 2018 National Privacy and Data Governance Congress. We encourage you to register for this congress. See: https://pacc-ccap.ca/congress/register/

The National Privacy and Data Governance Congress

March 6, 7, & 8, 2018
Venue: Carriage House Inn in Calgary, Alberta
Location:
9030 Macleod Trail South, Calgary T2H 0M4

If you have not yet registered, CLICK HERE TO REGISTER

The 2018 Congress is your opportunity to explore leading issues at the crossroads of privacy, access, security, law and technology. Network with peers and colleagues from industry and government to explore this year’s theme — The Road Ahead — Balancing privacy and the public interest. Get a clearer view of how privacy, access, security, compliance, law and technology intersect, and why that matters to you, your career, and your organization.

The PACC Congress takes a refreshingly pragmatic approach. We think it’s important to offer a truly varied assortment of perspectives and experiences — that offer practical guidance. Speakers from different locations, industries and organizations offer a range of views that are never the same-old, same-old.

Unlike most industry events, we do not offer manels (all-male panels); we do make sure that women’s speaking time at the PACC Congress typically is equal to or greater than the time that men speak; and we encourage speakers to leave the PowerPoint presentations behind so that they can have meaningful conversations with attendees instead of focusing on a screen.

The Congress is a unique professional development opportunity. Sessions are longer than at most conferences, and formal presentations are shorter — so that speakers have plenty of time to present their views, and delegates have time to ask questions and get real, unscripted answers. To accomplish that — and because the Congress is about quality, not quantity — registration is strictly limited.

The Privacy and Access Council of Canada is the host of the congress. The congress website is at: https://pacc-ccap.ca/congress/.

We look forward to seeing you there.

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

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Public-funding of religious healthcare violates Charter rights and freedoms: The time for change is now

When the provincial government funds healthcare facilities operated by religious organizations which deny Albertans access to medical procedures prohibited by that religion, for example, abortion, emergency contraception (such as the morning-after pill) and medically-assisted dying, it violates rights and freedoms guaranteed by the Canadian Charter. In 21st century Canada, those violations cannot be demonstrably justified. Thus the public funding of those healthcare facilities should be struck down as unconstitutional.

Funding religious healthcare facilities violates sections 2, 7 and 15 of the Charter. Let’s take these, briefly, one by one. Section 2(a) guarantees freedom of conscience and religion. By allowing religious healthcare facilities to deny certain medical treatments for religious reasons, the government is sanctioning the imposition of a certain set of religious beliefs on people who do not subscribe to that religion, or indeed perhaps to any religion at all, for we must remember that Canadian courts are clear: freedom of religion in Canada includes the right to be free of religion, if that is your choice.

Section 7 of the Charter protects Canadians’ right to life, liberty and security of the person. By funding a religious organization that denies certain medical procedures, not for medically relevant reasons but for medically arbitrary reasons, the government is violating Albertans’ security of the person.
Section 15 (1) of the Charter ensures that Canadians are free from discrimination by the government. By funding religious groups to run healthcare facilities that are supposed to serve all Albertans, the government is discriminating against all those Albertans that do not subscribe to those religious beliefs.

It’s true that Charter violations can be justified under section 1 of the Charter. But section 1 of the Charter specifies that in order to be justified, violations can extend only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” So can the public funding of institutions that impose one religion’s beliefs on people who do not follow that religion possibly be “demonstrably justifiable” in a free and democratic Canada?

The answer must be “no” because the Canada of today is very different from the country it once was. From its founding as a country in 1867 through the Second World War, Canadian society and politics were dominated by the two founding European colonial peoples – the French and the British. For examples, Indigenous people were hugely disrespected and regularly tormented by government in a wide variety of ways, and immigration policy was unabashedly racist.

Significant social change started in the early 1900s, for example, when women got the right to vote. But it wasn’t until after WW II that human rights law in Canada started to change significantly. The culmination of human rights reform was addition of the Charter of Rights and Freedoms to the Canadian constitution in 1982.

Today, Canada has one of most highly diverse populations in the world. The legacy of British-French domination is still present – in many ways, it is still strong – but is much weaker than before. Powerful positions in government, business and the community more broadly are now held by a (not wide enough but) much wider range of people. Indigenous people are gradually gaining the respect and rights that have been denied them for so long and people from all over the world flock to Canada in search of better lives.

So whatever was considered permissible in Canada’s earlier days, it is not now constitutional for a government in Canada, including the Alberta provincial government, to fund an organization that does not respect Canadians’ rights under the Charter.

This isn’t a radical claim: Canadian law is supposed to evolve over time to reflect new social realities. The Supreme Court of Canada has consistently ruled that “our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.” These are the words of former Chief Justice McLaughlin in the Reference Re Same Sex Marriage in 2004.

It is also important to appreciate that, had those who drafted the Charter and advocated for its adoption wanted to protect religious healthcare facilities from a Charter challenge, they could have done that in the same way they insulated separate schools from Charter challenges with Article 29:
Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

This means that Charter arguments based on freedom of conscience or discrimination cannot be used to declare separate schools unconstitutional.
But the framers of the Charter did not do the same regarding the funding of healthcare facilities. We can therefore conclude that our Charter rights can be applied to strike down the public funding of religious healthcare facilities.
As Ryan Hoskins says in his Alberta Views article “Holy Healthcare, Our religious hospitals problem”: “If we were to redesign the healthcare system today, we wouldn’t allow Catholic [JK: or any other religious] administration to continue… We now have a much cleaner separation of church and state… It’s the political norm [now] that state institutions be even-handed [neutral] about religions. It’s time to change course.”

Janet Keeping, Member, Rocky Mountain Civil Liberties Association.

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Canada’s Right-to-Die Legislation

“We respect your religious views, but they cannot, in a secular society, trump our clients’ constitutional rights.”
Joe Arvay, lawyer, responding to religious testimony in the Supreme Court of Canada’s hearing on assisted death

On February 6, 2015 the Supreme Court of Canada unanimously ruled that the prohibition on assisted suicide, as specified in the Criminal Code of Canada, was unconstitutional, and the Court gave direction on how this should be remedied by new legislation. The responsibility to make a legislative change fell to the new Liberal government, which passed Bill C-14, on medically-assisted death, on June 17, 2016.

The Court had specified that, according to our Charter of Rights and Freedoms, all competent and consenting adults who have a grievous and irremediable medical condition that causes enduring and intolerable suffering should have access to assisted death. Bill C-14, however, fell somewhat short of that directive. In Clause  241,2(2)(d) the Liberals arbitrarily limited eligibility to those for whom natural death is “reasonably foreseeable.” Many observers, including eminent Constitutional lawyers Peter Hogg and Joe Arvay, felt that the imposition of this limitation was a violation of constitutionality as determined in the Court ruling. The Court specified the eligibility of “competent and consenting adults …” with grievous and incurable medical conditions, not just those about to die anyway.

The requirement that death must be reasonably foreseeable was indeed a major limitation in the bill – a limitation that not only appears to be unconstitutional but which deprives many Canadians of the right to seek medically-assisted death. In May 2016 I spoke to the Standing House of Commons Committee on Justice and Human Rights about this serious problem with the proposed legislation. I spoke about my recent book (The Right to Die, April 2016) which reviews the significant court cases involving assisted death in Canada since 1940. It appeared that at least half of these cases would not have been alleviated by the new legislation, largely because of the reasonably foreseeable clause. In September 2016 I prepared a Government of Canada e-petition on the same issue and was successful in getting the necessary 500 signatures to have the petition presented in the House of Commons, which happened February 6, 2017.

I was far from being the only person to protest this limitation in the legislation. There were a great many others who felt that Bill C-14 is a betrayal of all the work that had been put in by so many people to get the court to the point where it could make its sweeping ruling. With that ruling and with the new legislation in the works, it appeared that Canada would finally have strong and compassionate assisted death legislation – legislation that would save many people from agonizing suffering and save many more from worrying about reaching a state of unendurable pain but being ineligible for assisted death. With the Supreme Court ruling, our legislation could have been among the best and most compassionate in the world. Instead, while better than nothing, it, is tragically inadequate, leaving many desperate people with no prospect of relief from their pain.

The offending clause remained and Bill C-14 passed. A challenge was inevitable, and the BC Civil Liberties Association, which took the lead in the original case (Carter vs. Canada), quickly formulated a new case on behalf of Julia Lamb, suffering from spinal muscular atrophy, type II, a hereditary disease that causes weakness and wasting of the voluntary muscles. Her death was not reasonably foreseeable, but she faced the possibility of many years of debilitated suffering. She wanted to know that she could get assistance in dying if her condition reached the point of being unbearable. A second plaintiff, Robyn Moro, suffering from Parkinson’s disease, also joined the case.

The first ruling on this case came down from the BC Supreme Court on October 11, 2017. The Civil Liberties Association wanted the finding of facts from the previous Carter case, which led to the Supreme Court ruling, to hold for this case as well. The Carter case produced one of the strongest documents ever to be written in support of the idea of assisted death – written by BC Supreme Court Justice Lynne Smith. This landmark document provided powerful backing for the ultimate decision of the Supreme Court of Canada. Now Smith’s acute and far-reaching analysis may well be irrelevant, as the facts surrounding the issue may be revisited by the new judge.

Whatever happens, the new decision on the case will take months or years to be resolved by the BC Supreme Court, and then it will inevitably go to the BC Appeals Court, and then to the Supreme Court of Canada.

This process will go on for years, with millions of dollars being spent, and with much additional unnecessary suffering by those barred from having access to assisted death. All of this is the result of the Liberals’ unreasonable intransigence on the matter of “reasonably foreseeable” death.

This article is an excerpt from a longer essay entitled “When Metaphysical Beliefs Trump Human Compassion”.

Gary Bauslaugh is a Victoria writer whose latest book, The Right to Die, was published by James Lorimer and Co, Toronto, in April 2016.

Posted in Freedom of Religion, Fundamental Human Rights | Comments Off

Parental Rights are only to Act in the Best Interests of Children

Alberta’s Bill 24 has passed that ensures youth attending Gay-Straight Alliances (GSAs) are not outed to parents for mere attendance in the student clubs. Although the legislation has passed, the debate in the public square continues regarding if parents should be informed of their children’s attendance in these clubs. Some have suggested they will challenge the legislation in court, based on a charter challenge.

RMCLA conducted a province-wide public consultation on GSAs in schools in 2015. The recommendations from this report were submitted to the Premier and Minister of Education. It contained many recommendations that were repeated by the government of the day and enacted in legislation. The report contained additional recommendations and rationales on parental and child rights.

Given the current debate, on whether or not parents need to be informed about children club choices, we feel it is time to repeat the findings of the public consultation and our review of law regarding the issue.

We feel that youth have the right to choose the clubs they wish to attend, regardless of their parental wishes. There is no strong rationale for schools to inform parents regarding their attendance in these clubs. We also feel that a constitutional challenge of Bill 24 regarding children’s choices would fail.

The reason for these conclusions are below and come from the original RMCLA Report and Recommendations on Gay-Straight Alliances in Alberta Schools. You can read the full report at the link below. Major segments are as follows:

http://www.rmcla.ca/GayStraightAllianceFinalReportRMCLA2015.pdf

Parental Rights are Not to Act in their Personal Interest

“Parental rights are not rights in a vacuum but rather emanate from the children themselves. Neither such ‘rights’ are absolute. Parental rights as described by the United Nation’s statements on the rights of the child are conferred so that parents may care for their children and act in the best interests of the child, not necessarily of the parent’s personal interests.

Canadian laws and Supreme Court of Canada decisions are consistent with this principle. The duty to protect minors takes precedence over any “right” or other authority of their parents. Parental rights are more akin to a privilege to exercise the rights of another individual (the child); and such authority diminishes over time as the minor matures. Thus parental “rights” are not analogous to the other rights listed in the Alberta Bill of Rights, and merely including “parental rights” in that legislation together with other rights would not clarify or identify these underlying principles or the complex nature of parental rights.

Arguably, the law relating to parental authority is already well established or settled. Unintended consequences are likely to flow from enshrining parental rights into the Bill of Rights by diminishing the importance of the underlying duty to protect minors or diminishing a parent’s responsibility to act in the best interest of the child through whom the ‘right’ flows to the parent. A great deal more study of such unintended and other consequences is required in various areas of law such as child welfare, family, adoption, health and mental health, criminal, agency, trusts, banking and many others. Paradoxically, including ’parental rights’ in the Bill of Rights without a great deal of definition and without amendment to numerous other laws may point toward many of its limitations and actually erode in the public’s mind the sense of what parental rights ought to be.

Mature Minor Doctrine

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. 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.[1]

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.

The Child, Youth, and Family Enhancement Act17 includes (at s.2) the provision that, when “a child is in need of intervention, a Court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider” [among other things]:

2(d) a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by those making decisions that affect the child.[2]

It is clear that in scenarios such as those suggested by s. 2, a child’s opinion in relation to her or his interests must be considered. It is just as appropriate that a student’s opinion in relation to the formation of, or participation in, GSAs should be considered.

GSAs are voluntary clubs that exist typically in secondary schools. Legislation allowing GSAs in any school based on student requests would acknowledge students’ right to associative and expressive liberty and self-determination. Given the entirely voluntary nature of the club, a GSA does not infringe on any students who wish not to be involved in this same club. However, not allowing GSAs in schools does diminish the fundamental liberties of LGBTQ students.

In January 2015, the Supreme Court of Canada reiterated that freedom of association is “essential to the development and maintenance of the vibrant civil society upon which our democracy rests”.[3] The purpose of freedom of association is “to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of his or her ends”. The associative freedom includes collective activity that enables those who would otherwise be vulnerable and ineffective to meet on terms that are more equal with the power and strength of those with whom their interests interact and, perhaps, conflict. The guarantee of freedom of association empowers vulnerable individuals to form supportive groups and helps them work to right imbalances in society.

The School Act (and the Education Act) give students rights to be involved in certain decisions at age 16. In addition, Bill 10’s amendment providing that children could appeal the decision of a school board was a tacit acknowledgement by our government that minors, especially mature minors, have a role in determining their treatment and their future. Nevertheless, minors might not yet have the resources to enable their decisions to be put into action. As noted in the section 5.2.5, the Child, Youth, and Family Enhancement Act also notes the importance of mature minors being involved in decisions affecting their lives.

GSA members are youths who have or are in the process of developing the capacity to make informed decisions about when, where and with whom they wish to associate. The absence of legislation permitting or mandating GSAs means that many students who would otherwise form GSAs will be denied their associative rights to seek the support of a group and will have to face, alone, the oppressive climate that, according to various participants in the public consultations, is an everyday occurrence in Alberta schools. Legislation mandating the formation of GSAs when they are requested would permit the exercise of the students’ Charter right to freedom of association.

The law enables mature minors to be involved in decision-making in a variety of respects. Some of those decisions may entail life-altering consequences; yet, in a variety of respects society and the government recognize that the minor should, at a certain stage, be involved in those decisions. Accordingly, we suggest that such recognition should also extend to the establishment of, or participation in, student clubs or societies.

Parental Rights

As has been noted throughout this report, one of the hallmarks of a GSA is that participation is entirely voluntary. No student is required to join or participate. The panel did not receive any evidence or submission that the formation of a GSA or the voluntary participation of students in a GSA would eliminate the possibility of any parent from involvement in their child’s life, or involvement in decision making with the child.

Parental rights are neither enjoined nor infringed by the presence of a GSA. Parents retain the same unencumbered scope to instruct their children in their values and beliefs, make informed choices as to their children’s education, support their children’s wish to participate in a GSA or instruct their children not to.

Freedom of religion and conscience encompasses the right of parents to educate their children in their own values and religious beliefs, and rear their children according to those values and beliefs.

Parents who do not wish their children to participate in a GSA have no right, individually or as a group, to impose that view upon parents who would like their children to participate in a GSA or indoctrinate other parents’ children by way of the school system or otherwise. Nor do they have a right to deny other children the opportunity to participate if those children’s parents support participation.

The responses to our public poll — from public, separate and private schools supporters —suggested that there is not unanimity of views regarding GSAs, although the clear majority of people in all types of schools supported GSAs. Consequently, the minority parent view to impede the formation of GSAs so that all students (even those with parents that support GSAs) cannot voluntarily join such a club would be the imposition of a few parental views upon the majority of others.

We did hear, in our public consultation, information about parents who are abusive or do not act in the best interest of their children. We are all aware that within our society, and in all sectors of our society, there are parents who abuse their children or who fail or are unable, for various reasons, to look after the best interests of their children or provide them with the support and comforts that the children need.

The government’s duty to protect minors from, amongst other things, abuse and neglect trumps parental authority. We see that principle enshrined in a number of our laws. Our consultative process heard descriptions of LGBTQ students experiencing parental abuse and rejection, and of others who do not receive support from their own parents. We heard that in such cases a GSA might be the only safe place in the student’s life. In these cases, especially where the mature minor doctrine applies, the student’s own decision-making abilities must be recognized in determining whether the student should participate or not in a GSA. In cases such as these, respecting the student’s privacy and maintaining confidentiality of their choices regarding is also vital to the student’s safety and well-being.

Responses to our poll — from public, separate and private schools supporters — showed little support for entrenching parental rights within the Alberta Bill of Rights or elsewhere. We also advise caution in light of the unintended consequences of proclaiming ‘parental rights’ in the Alberta Bill of Rights or other enactments. Albertans have seen, in the past and even today, where unencumbered ‘parental rights’ lead to horrific consequences for children. A review of the Leilani Muir case is one such example.19 Forced marriages of children20, honour killing and the view of some on aggressive corporal punishment for misbehaviour are other examples at the extreme of the spectrum.

Beyond these examples, the law relating to parental authority is, arguably, already well established or settled. Unintended consequences are likely to flow from enshrining parental rights into the Bill of Rights by diminishing, or being interpreted or perceived to diminish, the importance of the underlying duty to protect minors or diminishing a parent’s responsibility to act in the best interest of the child through whom the ‘right’ flows to the parent. A great deal more study of such unintended and other consequences is required in various areas of law such as child welfare, family, adoption, health and mental health, criminal, agency, trusts, banking and many others. Paradoxically, including ’parental rights’ in the Bill of Rights without a great deal of definition and without amendment to numerous other laws may point toward many of its limitations and actually erode in the public’s mind the sense of what parental rights ought to be.

There simply is neither strong evidence nor support for placing “parental rights” in the Alberta Bill of Rights or other legislation.”


[1] 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

[2] Child Youth and Family Enhancement Act, RSA 2000, c-12

[3] Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1

 

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The Convenience of Covenants: Getting Around Your Rights and Liberties

RMCLA is often asked, “What are the differences between human rights and civil liberties, and how far can my liberties be restricted?” One way to think of fundamental human rights are that these are the rights protected by law and stated in the constitution, whereas, the liberties you have are related to the choices and actions you can make concerning each of these rights.

Fundamental freedoms are typically noted as the following:

  1. freedom of conscience and religion;
  2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  3. freedom of peaceful assembly; and
  4. freedom of association.”[1]

Of course, we have more constitutional rights, but we most often refer to our liberty or choice to make decisions within these fundamental rights. For example, we have the option to join one protest (and use our freedom of peaceful assembly) over another protest, or not join any protest. We also have the choice to follow one religion rather than another, have one belief preference over another, or say some words and not others. We can also decide not to follow any religion or not to make any choices regarding freedom of conscience and religion, not have a particularly defined belief, or not to express oneself on any specific topic. These are some examples of our liberties, of course there are many more.

Restricting Liberties

There are plenty of examples in society where our liberties are restricted. In any society, citizens must follow a specific set of laws and not break these laws; these restrict our liberties and typically for good reasons that are justified under the constitution. We see this in other walks of life as well. When you decide to follow a certain religion, there may be pressure to follow a set of behaviours over other behaviours. When you join a company as an employee there may be a code of behaviour that states certain behaviours can and cannot be followed. In all these cases, when liberties are restricted it may or may not be justified under the constitution. It can be especially problematic when government directly or indirectly through laws, contracts, or their boards, authorities, or other bodies, restrict our rights.

Restricting Liberties through Covenants

It is the set of restrictions related to organizations that are of recent concern to RMCLA. When employers or organizations request that a person can only be an employee, or part of the association of people that make up the organization, and ask the person to sign a contract that restricts behaviours as a condition of this association, then the agreement is called a covenant. Signing employee contracts and agreeing to such codes of conduct are commonplace. The question regarding whether covenants are problematic arises when the contract or covenant restricts an employee’s fundamental freedoms as noted by the constitution, or when the covenant obliges the employee to restrict the rights of others. These may be customers, clients, patients, or other people that may served or supervised.

How far can covenants go? How obliged are employees to follow the covenants? What are the rights that people may loose if they join with, or seek services from, an organization with specific covenants? The questions concerning covenants are endless.

In many cases, organizations are arms of the government (such as schools, health authorities, and so on) and restrictions of our liberties can occur through these types of organizations, and although may not be directly limited by legislation are in fact sanctioned by governments. Covenants can produce unique problems in education of children, university or college education, and in health. In this case, we will focus on health covenants.

Covenants concerning Health Care

Health covenants can have implications for the types of service offered to and received by the public. For example, some covenants state that the health professionals cannot provide physician-assisted dying, even though Canadian law allows a person to choose assisted dying under strict circumstances. Abortions, the morning after pill, voluntary sterilization, and birth control may not be offered through some organizations due to these covenants. The right of some LGBT people to join with their sick partners and assist in making health decisions may be restricted or blocked. This list goes on and on.

Many of the above scenarios appear to be true in Alberta for those receiving services from ‘Covenant Health,’ a Catholic health organization. Covenant Health believes that it has a,

…“thousands-of-years-old calling to serve others… through protecting the sanctity of life from conception to natural death.” This includes guiding the policies adopted by Covenant on, among other things, birth control, pregnancy termination and end-of-life care.”[2]

A key phrase here is “sanctity of life from conception to natural death.” Covenant Health is one of the largest health organizations in the province; in 2015 its budget was $895-million. The funds directed toward Covenant Health are entirely at the discretion of the government. This is about 5 per cent of the provincial health budget. The organization is dependent on public funding, with 88 per cent of its revenue in 2015 coming from the Alberta government. Some Alberta communities only have Covenant Health serving it so that people there have no other options in the community.

A fundamental question arises as to what degree Covenant Health can restrict its services and make decisions for patients and communities they serve, when it is contracted to provide the full range of public health services by the Alberta government.

We invite you to come to a discussion about Alberta’s covenants in health care on January 13th, 2017 at the University of Calgary’s law school.

In the meantime, we encourage you to read various articles about covenants in health and other services. These include:

Ryan Hoskins (2017). Holy Healthcare: Our religious hospitals problem. Retrived from Alberta Views, Calgary, Alberta.

Ailsa Watkinson (2017). Faith-based health care should end with Sask.’s health region amalgamation. Retrived from CBC News., Toronto, Ontario.

Christina Frangou (2017). Assited dying: Still sensitive but now legal. Retrived from Alberta Views, Calgary, Alberta.

 

 

Posted in Freedom of Religion, Fundamental Human Rights | Comments Off

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