Staffing shortages lead to more lockdowns in Ontario jails

The recent staffing shortage of correctional officers has led to a rapid increase in lockdowns across the province. Last year, there were over 900 lockdowns due to staffing issues – tripling 2009’s rate of 259. These figures solely reflect lockdowns triggered by staffing shortages. They do not include lockdowns caused by security breaches, transfers of high-risk prisoners, violence, or contraband.

The staffing shortage began in 2010 when Ontario put in place a hiring freeze. In addition to the freeze, the province beefed up aspects of the hiring process for correctional guards, changing the manner in which background checks are conducted. The province began hiring again in 2014, but have yet to hire enough to meet current demands.

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SCC: Federal Court has jurisdiction to deny Judicial Review

The Supreme Court’s recent ruling in Strickland v Canada will ensure that all potential applicants think twice before going to the Federal Court with a judicial review challenge.

The ruling in Strickland involves a divorce case from Alberta in which the appellant, Robert Strickland, challenged the validity of federal Child Support Guidelines under the Divorce Act, arguing that the regulations were inconsistent with the legislation. Strickland sought a judicial review at the Federal Court of Canada.

The court denied application for review, arguing that it had little experience in family law matters and was an inappropriate forum. Subsequently, the applicants turned to the Federal Court of Appeal, arguing that the lower court’s reasoning was insufficient to deny the review.

In the Court’s reasoning, Justice Thomas Crowmwell considered the jurisdictional question of whether Provincial Superior Courts possess the jurisdiction to rule on the validity of federal regulations. In addition, the Court also raised the more administrative law question of whether the Federal Court erred by declining to hear the appellants’ judicial review application.

With respect to the jurisdictional question, the Court explicitly recognized that provincial superior courts have jurisdiction to address the validity of the federal regulations where doing so is a necessary step in resolving the case.

Additionally, the Court affirmed the discretionary nature of judicial review, stating that:

The appellants’ position that they are entitled to a ruling on the legality of theGuidelines through a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised. The appellants do not have a right to have the Federal Court rule on the legality of the Guidelines; the Federal Court has discretion to do so, which it has decided not to exercise. . . .

The Court, in emphasizing the importance of a forum’s suitability for review, noted that even if the Federal Court were to declare the federal regulations to be invalid, such a declaration would not bind the provincial superior courts which could continue to apply them until successfully challenged in those courts.

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.” Read the rest of this entry »

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. 

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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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.

Woman Kept as “Virtual Slave” in Richmond, BC

The BC Human Rights Tribunal recently awarded one of its largest awards for damages to dignity, feelings, and self-respect in PN v. FR and another (No. 2), 2015 BCHRT 60. Tribunal Member McCreary ordered $50,000 to be paid to PN, along with $5,866.89 for wages. PN, identified only by her initials to protect her anonymity, is a 28-year-old single mother.

FR and MR, a husband and wife, had hired PN as a nanny and housekeeper in Hong Kong, through an employment agency based in the Philippines. The Respondents are citizens of Hong Kong, and came to Richmond, Canada to purchase a home for themselves and their two children. PN had worked for the Respondents in Hong Kong for one year, and was brought by them to Vancouver on a tourist visa on July 7th 2013. After arriving in Richmond, the family stayed in a 2-bedroom hotel suite, while PN slept on a couch in the living room. PN was underpaid in Hong Kong and in Richmond, receiving $600 (CDN) per month for working over 15 hour days, and would often have her pay docked for irrational reasons, such as sitting down while eating. PN fled from her employers, FR and MR, six weeks after arriving in Richmond. Tribunal Member McCreary found that PN was routinely humiliated and degraded isolated, underfed, and overworked by the couple. PN was also a victim of ongoing sexual assault by FR. The Member also found that PN’s wages were withheld, and that she was subject to threats and coercion after her escape.

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SCC: Want to be a chief? Get a Grade 12 education.

A recent Supreme Court of Canada ruling may force a long-time chief to step down.

On May 28, 2015, the Supreme Court of Canada upheld the Kahkewistahaw First Nation’s Election Act, which requires that those seeking political office have a minimum Grade 12 education.

The challenge was raised by a former chief of the Kahkewistahaw First Nation, who argued that the requirement was discriminatory on the grounds of educational attainment under s. 15 of the Canadian Charter of Rights and Freedoms. Louis Taypotat had previously been chief for 27 years, and incidentally during much of the 13-year period in which the band held community discussions that led to the education requirement. But when he tried to run in the May 2011 election, he was turned away because he had the equivalent of a grade 10 education.

The Federal Court of Appeal ruled that the Grade 12 requirement amounted to unintentional discrimination because it harmed older members and on-reserve members, as both groups tended to lack education. Upon the FCA ruling, on May 16, 2014, he was elected chief of Kahkewistahaw for a three-year term.

But the Supreme Court, in a unanimous ruling written by Justice Rosalie Abella, said there was no statistical evidence pointing to a link between the education requirement and a disparate impact among members of the band. Justice Abella said the appeal court had raised the issue of age and residency on the reserve, and that it had done so improperly, because it has never been identified as a ground of discrimination in previous Charter of Rights rulings.

Taypotat says he has no plan to vacate his position and he plans to obtain his GED to satisfy the education requirement.

Queen’s Park pushes to pass ban on conversion therapy

Parkdale-High Park MPP, Cheri DiNovo, is attempting to “fix society.”

Inspired by Leelah Alcorn’s suicide last December, DiNovo tabled Bill 77 in March. Alcorn was an Ohio teen struggling with gender identity and rejection from her parents. In her suicide note, which was posted on Tumblr, Alcorn wrote that her parents put her into faith-based conversion therapy upon learning of her plans to transition. Alcorn’s note sparked international attention and spurred the creation of legislation – “Leelah’s Law”– in several states, including New Jersey and California, to ban conversion therapy for minors. Alcorn’s final words in the note were “fix society please.” And that is exactly what DiNovo is aiming to do with Bill 77.

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U.S. Senate Debates Expiring Patriot Act

The Patriot Act, one of the United States’s primary counterterrorism tools, is set to expire on Monday June 1. After weeks of debating the Act’s renewal, the Senate is far from making a concrete decision.

Both critics and supporters of the Patriot Act have used powerful and alarming language in their arguments. This New York Times article suggests that there is little or no evidence in the history of the Act to support the arguments of either side.

On the one hand, Republican senators who support renewing the Act argue that any changes to or withdrawal of “this critical tool would lead to attacks on the United States,” as Senator Tom Cotton recently stated. However, no evidence exists that the Patriot Act has ever prevented a terrorist attack.

On the other hand, critics of the Patriot Act argue that it threatens Americans’ private lives, granting the government overly vast surveillance powers. Here too, there is no concrete evidence of the Act being misused for personal or political gain in its existence.

This lack of evidence on either side has filled the recent Senate debates with hypothetical terms and arguments.

For example, last week, Senator Rand Paul argued that the Act should not be renewed: “Even if we stipulate for purposes of this discussion that no one within the [National Security Agency] is currently abusing this program for nefarious political purposes, can we say we are certain that will always be the case? Who is to say what might happen one year from now, two years from now, five years, 10 years or 15 years from now?”

With the Patriot Act expiring on Monday, the coming days will surely see another flurry of arguments. Read the full article to stay up to date here.

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