Alberta Court of Appeal: Charter Rights Protected in University Setting

Alberta’s top court has ruled that the University of Calgary’s attempts to discipline two students for criticizing a professor of Facebook amounted to an infringement of their freedom of expression rights.

Justice Marina Paperny, on behalf of the court stated that “the Canadian Charter of Rights and Freedoms applies to the disciplinary proceedings undertaken by the university,” which is a break from previous jurisprudence that affirmed that universities are not government actors  within the meaning of section 32 of the Charter.  The court also felt the decision was unreasonable from an administrative law perspective.

Justice Brian O’Ferral’s concurrent opinion tried to not overstate the question of whether universities were ‘Charter-free-zones,’ instead focusing on “whether, in disciplining the students for their comments or for their association with the social media site which was critical of one of the university’s sessional lecturers, the university’s disciplinary body, the General Faculties Council, ought to have considered whether its discipline violated the students’ right to freedom of expression and freedom of association.”

Lawyer for the intervening Canadian Civil Liberties Association, Colin Feasby, noted that a university’s autonomy should not be used to avoid Charter scrutiny in its disciplinary processes.

For more information click here.

10 Years For Wearing A Mask

Conservative MPs on the House Justice Committee have sent a bill banning the use of masks by ‘rioters’ with an increased penalty of up to 10 years in prison. Bill C-309 would make it illegal for those rioting or participating in an ‘unlawful’ protest to conceal their identities. Despite section 351 of the Criminal Code already outlawing the use of a disguise while committing an indictable act, this new legislation would also apply to the non-indictable offence of participating in an ‘unlawful’ protest, giving another means for the police to persecute protestors. NDP MP Françoise Boivin worries that this bill will be “a way to pre-emptively arrest masked protesters, even if they’re peaceful.”

Another concern would arise if police decide to use tear gas and pepper spray to control a demonstration, as they did in the early 2000s in response to the anti-globalization movement. Protestors used vinegar soaked bandanas and gas masks to protect themselves from the toxic fumes. If the police deemed just protests ‘unlawful,’ would the use of protective masks be used as an additional charge to persecute dissent? Unfortunately, the answer is in all likelihood yes.

To read more click here.

Missing Women’s Inquiry Continues to Stifle Release of Documents

Already engulfed with controversy and boycott, Wally Oppal’s Missing Women’s Inquiry continues to provide fodder for those who believe the process lacks genuine  concern for those who were most impacted by the RCMP’s indifference and ineptitude.

Lawyers representing the family of some of the missing women attempted to obtain disclosure on documents from Vancouver police, RCMP and provinces criminal justice department, including those related to Willie Pickton’s brother. His brother had close ties to the province’s Hell’s Angels. Oppal claims that there is no connection worth investigating and that it is outside the mandate of the inquiry. The family lawyers, however, want to know why the RCMP didn’t catch Pickton earlier, especially considering Vancouver police received tips as early as 1998 from informants that linked him to the disappearance of women in the province.

The connection that the brother of Pickton has with a criminal organization and whether that connection may have influenced the effectiveness of police inquiry before Pickton was finally arrested in 2002, would appear to be relevant to the inquiry’s mandate, despite Oppal’s protest.

Read more here.

BC Government Set to Pass Anti-Strike Legislation

The provincial Liberal government is set to pass Bill 22, which will impose a cooling period and make strike action by teachers illegal. Teachers walked out for three days last week in protest to failed negotiations. The new legislation will impose stiff fines on teachers, even for work to rule action they had engaged in throughout the year.

The NDP opposition attempted to make an amendment to the bill that would have imposed a third party mediator to help end the dispute, a strategy that the government has rejected. There are serious concerns that the government is using legislation to substitute for serious bargaining, since the bill also imposes significant contract terms, including raising class size caps for special need and regular students.

Despite the chaos caused by the three day strike, BC residents appear to sympathize more with the teachers than the government, a warning sign to Premier Clark as she faces the electorate next year.

For more on the conflict read here.


BC Govn’t Tables Back To Work Legislation

BC Education Minister has tabled legislation to recall teachers if they choose to take job action. It extends the current contract and appoints the mediator to try to bring the sides closer. That said, the Minister has threatened to impose a new contract if a deal is not reached by September.

A major issues, aside from wages, is the ability to negotiate class sizes. In BC Teachers’ Federation the BC Supreme Court followed Health Services and declared that legislation that prohibited bargaining on various mattered, specifically class sizes, violated s. 2(d) Charter rights to collective bargain. The government, however, is not allowing for negotiations of class sizes until the next round of bargaining, postponing its adherence to the court order.

For more information on this read here.

BC Teachers Set To Strike-Right to Collective Bargain At Stake Again

The BC government is preparing to introduce back-to-work legislation in response to failed bargaining with the province’s teachers. In response, the BC Teachers’ Federation is seeking  a strike mandate from its members, who have been without a collective agreement since June.

Tara Ehkre, president of the Greater Victoria Teachers’ Association vocalized anger that for the third time in ten years the Liberal government is imposing a settlement. While the teachers have proposed mediation or arbitration, Education Minister George Abbot has offered such a solution only for non-monetary issues since he believes the parties are too far apart on other matters.

The strategy of legislating contracts for public servants has become a new trend for right-leaning governments and this will raise once again issues related to Freedom of Association rights protected under s. 2(d) of the Charter. The recent Fraser and Health Services decisions affirmed that the right to collective bargaining is a protected Charter right, although the specific content of that right and whether it goes beyond the duty to bargain in good faith is unclear. That said, if the practice of dragging out negotiations so as to assure government legislated settlements becomes the norm it will become a contested issue as to whether employers are genuinely bargaining in good faith, sure to produce some very interesting Charter litigation.

For more details about the teachers’  situation read here and here.

Read about legal response to the Postal Workers being legislated back to work last May here.

Victoria Ties to Refugee Crackdown

The Conservative government’s introduction of new refugee legislation would impose a mandatory one-year detention for all refugees who arrive “irregularly”.

The Protecting Canada’s Immigration System Act was crafted in response to two refugee boats that arrived off the coast of British Columbia with over 600 Sri Lankan asylum seekers. It would grant the minster of public safety the poet to declare a designate group as an “irregular arrival,” forcing the refugees to be detained without review for up to one year or until the Immigration and Refugee Board makes a decision on their case.

Although claiming that they are trying to crackdown on “bogus” refugees and counter the feeling that the Canadian refugee system is “easily exploited.”

Don Davies, the NDP’s immigration critic feels that this is “knee-jerk reaction” that punishes refugees and not the human smugglers the government claims it is attempting to curtail.

The Canadian Association of Refugee Lawyers notes that the Supreme Court ruled that mandatory detention without review is unconsitutional. Donald Galloway, professor at the University of Victoria’s law school, also comments that the impact of mandatory detention could have serious psychological ramifications that should be of concern.

To read more click here.

Investigation of Excessive Force by RCMP in Yukon

Helen Hollywood, one of the founders of Whitehorse’s tent city last summer, claims that police injured her during an arrest on January 31. She was admitted to hospital with a dislocated shoulder after the arrest, prompting an investigation by Lethbridge Police.

There is concern, however, that the Yukon government has failed to create its own Yukon Police Council to investigate complaints in the territory, rather than rely on outside police agencies to oversee complaints.

NDP justice critic Lois Moorcroft commented that “We want to see positive change in community relations with the police. The Yukon Police Council needs to be in place in order for this to occur.”

For more details read here.

Officer Who Assaulted Suspect Faces No Discipline

Victoria’s police complaint commissioner has stated that former police Sgt. George Chong will not face discipline for assaulting a suspect during fingerprinting.

Mistaking placed in custody for breaching a court-ordered curfew, Frank Blair became unconscious after he was placed in a vascular neck restraint. After awaking he was placed in a jail cell for 45 minutes and then taken to the hospital.

Chong did face criminal charges, and a provincial court judge found him guilty of assault. However, police chief Jaime Graham felt that Chong did not abuse his authority in fingerprinting, only in respect to caring for Blair’s injuries.

Chong eventually decided to retire, which is being cited as reason not to probe further or seek more sanctions. Yet, people concerned with police accountability have reason to concern that these issues are not being properly dealt to their fullest extent.

For more information read the article here.

Four Former AGs Call for Decriminalization of Pot

Four BC attorney generals are calling on Premier Christy Clark and Opposition leader Adrian Dix to support the legalization, regulation and taxation of marijuana. In an open letter they note that the prohibition on pot has facilitated organized crime, gang violence, and significant spending policing users and dealers.

The Premier has refused to respond to the matter, passing the buck off to to the federal government, while the NDP has long standing policy supporting decriminalization.

For more details of the letter read here.

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