Controversy continues after Bill C-51 becomes law

On June 18, 2015, Bill C-51 (Short title: Anti-Terrorism Act, 2015) received Royal Assent and became the law in Canada. The bill gives expanded powers to the police and the Canadian Security Intelligence Service (CSIS). It also allows for enhanced information sharing across government departments, despite heavily redacted CSIS documents suggesting that improved information sharing was possible within the “existing legislative framework” and that some changes created by the bill are unnecessary.

Public Safety Minister Steven Blaney promoted the bill’s potential to provide better protection against terrorists. However, strong opposition to the bill among the general public, legal scholars, and advocacy groups has continued, despite the passing of the bill. Hundreds of thousands of Canadians have signed a petition to repeal the bill and according to a Forum Research poll, half of respondents disapproved of the bill before its passage.

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U.S. Supreme Court: Same-Sex Marriage a Nationwide Constitutional Right

“Love is love,” Barack Obama exclaimed after the U.S. Supreme Court ruled 5:4 to make same-sex marriage a right across the United States last Friday. “[This ruling is] for gay and lesbian couples who have fought so long for their basic civil rights. It’s a victory for their children, whose families will now be recognized as equal to any other. It’s a victory for the allies and friends and supporters who spent years, even decades, working and praying for change to come.”

The court ruled that the ban on same-sex marriage that still existed in 13 states was unconstitutional. Justice Anthony Kennedy, writing for the majority, stated that an equal right to marriage is protected by the Constitution. He wrote that the hope of the applicants – several same-sex couples seeking to marry – “is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

The majority took the view that the Bill of Rights was designed so that it could grow and evolve to adapt to societal changes and protect new rights. Justice Kennedy explained that “the generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Justice Kennedy found that the bans on same-sex marriage were contrary to the due process clause of the 14th Amendment, which reads that no state can “deprive any person of life, liberty, or property, without due process of law.” He referred to marriage using the term “dignity,” which he argues falls under the protections of the 14th Amendment: “these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

In recognizing the fundamental right to marriage, Justice Kennedy spoke to the significance of raising children: “Without the recognition, stability and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

The court also addressed the reality that there will inevitably continue to be people who oppose same-sex marriage, concluding that the marriages must be permitted but the debate should continue. Justice Kennedy wrote: “Those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”

The four more conservative judges on the bench wrote individual dissenting opinions, with Justice Antonin Scalia’s being the most heated of them all. He disagreed with the majority’s view that the Constitution should evolve and grow. He also took issue with the conclusion that the individual states cannot make their own decisions on the issue of same-sex marriage. Justice Scalia explained that the laws on marriage “[are] not of immense personal importance to me” and that “except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’”

Read the entire Supreme Court decision here.

SCC: No Federal Compensation for Wrongfully Convicted Man

On June 19, 2015, the Supreme Court of Canada ruled that Rejean Hinse, a Quebec man who spent nearly 50 years fighting to clear his name after being wrongfully convicted, is not entitled to compensation from the federal government.

Hinse was sentenced to 15 years in 1964 for an armed robbery in Mont Laurier, Quebec, but always maintained his innocence, arguing that he was 200 kilometres from the scene when the robbery took place.

In 1989, the Quebec Police Commission concluded that Hinse was the victim of a botched investigation. In 1994, the Quebec Court of Appeal quashed his conviction, on the basis of new evidence, and ordered a stay of proceedings.

Hinse pursued the case further in an effort to clear his name and went before the Supreme court in 1997. The highest court formally acquitted him of the crime, ruling that the evidence presented at his trial wasn’t sufficient to convict him.

Hinse received $4.5 million in compensation from the province of Quebec in 2010. He subsequently sued the Attorney General of Canada, claiming the minister acted in bad faith in reviewing applications for mercy while he was in prison.

Ultimately, the SCC decision ruled that:

In this case, [Hinse] has failed to prove, on a balance of probabilities, that the minister acted in bad faith or with serious recklessness in reviewing his applications for mercy.”

To read more about this case, visit The Globe and Mail. 

Proposed Code of Conduct Sparks Controversy

A proposed Code of Conduct for city councillors has passed second reading in Iqaluit, Nunavut.

The proposal raises free expression concerns, however. For example, one section requires councillors adhere to it by “Always speaking well of each other and Council in public.” Such provisions can stifle free debate.

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European Court for Human Rights issues controversial ruling on free speech

The European Court for Human Rights issued a significant ruling in the case of Delfi AS v. Estonia. The ruling held that a news portal could be held liable for defamatory content posted by anonymous commenters on its website.

Delfi, an Estonian news site, had challenged the law which allowed it to be held liable as a violation of its free expression rights under Article 10 of the European Convention on Human Rights.

The Court rejected this argument, holding that the Article 10 rights of Delfi had not been infringed.

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Legal Aid Ontario announces substantial expansion of services

Last Monday, Legal Aid Ontario announced the latest instalment in its unprecedented multi-year expansion. Legal aid certificates are now available that cover a wider range of legal initiatives to meet client needs, expand client-focused services, and improve access to justice.

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Magna Carta turns 800

In a meadow in Runnymede, on June 15, 1215, at the behest of his rebellious barons, King John affixed his seal to Magna Carta, the Great Charter, which guaranteed certain fundamental rights for the people of England.

The basic protection of the rule of law was enshrined in clauses 39-40 of the original document, which can be translated as:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.”

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Abortion on the agenda in Prince Edward Island

On Tuesday, a petition signed by hundreds of Islanders will be tabled in the Prince Edward Island legislature. The petition calls for abortion services to be provided on the island. As the Charlottetown Guardian reports,

[T]he word ‘abortion’ has only been uttered three times in the P.E.I. legislature. In each instance, abortion was only being used as an example of a controversial health service. There has never been any real debate or discussion about abortion in the legislative assembly of the only province in Canada that does not offer abortion services.

For more than 30 years, Island women have been unable to legally access abortions on-island. Instead, they must travel to New Brunswick or Nova Scotia for the procedure. If the women have the abortion in a hospital, PEI Medicare will pay the physician and hospital costs, but will not if the woman has the abortion in a private clinic, like Fredericton’s Morgentaler clinic (now Clinic 554). In either case, the woman must pay for their travel and accommodation expenses themselves. Until recently, Island women had to seek a referral from an island doctor. As the CCLA argued in 2011,

Setting up procedural barriers, such as requiring doctors’ referrals in advance of such a time-sensitive medical procedure, is prohibitive and discriminatory.

Removing that requirement is a good first step toward respecting the civil liberties of Island women. Seriously considering abortion access in the legislature will be a good second step.

High Court rules that Medical Marijuana includes Brownies, Teas and Oils

On June 11, 2015, the Supreme Court of Canada struck down limits on what constitutes legally acceptable medical marijuana products.

The court ruled unanimously that medical marijuana can be legally consumed in a range of ways, from cannabis-infused cookies and brownies to cooking oils and teas.

The challenge was brought by Owen Smith’s arrest in 2009. The CBC reports that:

Smith, a baker for the Victoria Cannabis Buyers Club, was found with more than 200 cookies and 26 jars of liquids, including cannabis-infused massage oils and lip balms.

Until now, federal regulations stipulated that authorized users of medical marijuana could only consume dried marijuana, as per Sections 4 and 5 of the Controlled Drug and Substances Act

The Court noted in its judgment however, that limiting medical consumption to dried pot infringes on liberty protections under the Charter of Rights and Freedoms.

The seven justices said the national medical pot program was flawed, impinged patients’ fundamental rights, and was not saved by the section of the constitution that allows reasonable infringements for worthy societal goals.

The initial trial judge in Smith’s case gave the federal government a year to change the laws around cannabis extracts, but the Supreme Court said that its ruling takes effect immediately.

While this ruling offers relief to many patients, it has been met with strong and swift criticisms from the government.

Read the full decision here:

U.S. Supreme Court: Abercrombie & Fitch guilty of employment discrimination based on religious attire

Last week, the Supreme Court of the United States ruled in favour of a Muslim woman, Samantha Elauf, who was denied employment by Abercrombie & Fitch because she wears a hijab. The clothing company had said that her headscarf clashed with its “classic East Coast collegiate style” dress code.

The court ruled 8 to 1 in favour of Ms. Elauf, concluding that Abercrombie & Fitch’s decision to not hire her was motivated by a desire to avoid accommodating her religious practices. Justice Antonin Scalia wrote the majority decision, and stated that Ms. Elauf could sue Abercrombie & Fitch under a federal employment discrimination law. The court found that the company’s decision violated Title VII of the 1964 Civil Rights Act, which forbids discrimination based on religion in the hiring process. Justice Scalia explained that “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

The court also concluded that an individual is not required to request for accommodation to wear particular religious attire, including a hijab.

Various minority religious groups, including Muslims, Sikhs, and Jews, celebrated the decision as a means of protecting their members from employment discrimination based on religious attire.

For more details, read the full Supreme Court decision here.

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