In this podcast, Tony Navaneelan, Acting Fundamental Freedoms Program Director, speaks about the the key legal issues around the G20. From the use of the antiquated Public Works Protection Act to questions about what a systematic review from OIPRD can accomplish, Navaneelan offers critical legal insight.

Tony Navaneelan on RedEye, Vancouver Coop Radio

Click the link above to download and listen to the podcast. Alternatively, you can listen to the podcast directly in your browser by clicking here.

You can also see Tony Navaneelan’s earlier television interview regarding G20 governance and policing with SunTV by clicking here.

Last week Omar Khadr’s military lawyer petitioned the US Supreme Court to delay his trial, until the legality of the Military Commissions could be determined.  That petition was unsuccessful.  Accordingly, Mr. Khadr’s trial before the Military Commissions will go ahead.

At a pre-trial hearing August 9th, 2010, the Military Judge ruled that Mr. Khadr’s ‘confessions’ — taken after his arrest when he was badly injured, chained, at times hooded, and subjected to sleep deprivation and apparent threats of serious harm — are admissible.  Mr. Khadr himself, who was 15 years old at the time, has stated that he told the interrogators whatever they wanted to hear so they would not further mistreat him.

CCLA argues that Canada should call for Omar Khadr’s repatriation.  The trial of a child soldier in these circumstances violates the First International Protocol of the UN Convention on the Rights of the Child, which Canada and the US have ratified.  International law recognizes that children act either without full awareness or independence in armed conflict, and are often forcibly conscripted into hostilities, therefore requiring special protections which Omar Khadr did not receive.  Child soldiers must be rehabilitated, not punished. Further, the lower evidentiary standards of the Military Commissions admitting evidence obtained by torture or improper treatment,  contravenes international standards.  The Supreme Court of Canada in January 2010 ruled that Omar Khadr’s Charter rights were breached when Canadian officials interrogated him at Guantanamo Bay knowing he was a child,  knowing he was subjected to ‘improper treatment’, and passed on this information to US officials.  Because that information may be used to keep Mr. Khadr in Guantanamo Bay and may form part of the case against him, the Supreme Court of Canada noted that the effects of the Charter breach continue to this day, and ordered Canada to provide Mr. Khadr with a remedy for the breach of his rights.  CCLA believes Canada must protect Mr. Khadr.  He is the last westerner remaining at Guantanamo Bay, as all other western countries have repatriated their citizens.

Omar Khadr’s US  lawyer has petitioned the US Supreme Court to delay Mr. Khadr’s military trials, until the legality of the Military Commissions is determined.   Mr. Khadr’s military trials are set to resume August 10^th, 2010.  His lawyer argues that the Military Commissions are unconstitutional and  discriminatory because they apply only to non-citizens who receive lesser  procedural and evidentiary protections than citizens receive in Federal Court.

CCLA renews its call for Canada to repatriate Omar Khadr.  Canada has legal obligations in international law that require it to protect Omar Khadr’s rights.  At this stage, CCLA believes the best way for Canada to protect Omar Khadr’s rights is to repatriate him.

CCLA agrees that the Military Commissions do not provide adequate legal protections. A discriminatory legal process is incompatible with the legal obligations of the International Covenant on Civil and Political Rights (ICCPR).  Canada and the US have both ratified the ICCPR which guarantees equality, non-discrimination, access to justice, and due process.

Further, Canada and the US both have ratified  and  have legal obligations pursuant to the First Optional Protocol of the UN Convention of the Rights on the Child (“CRC”).  Pursuant to the First Optional Protocol, Canada and the US are both legally obligated to protect individuals under 18 years of age because they are particularly vulnerable to conscription in armed conflict and hostilities; Omar Khadr was only 15 years-old when he was arrested in Afghanistan.  Unlike the US, Canada has also ratified the CRC and must interpret its obligations under the Optional Protocol in light of the Convention which calls for the legal protection of minors and their due process rights.  It is incompatible with the CRC, and with the First Optional Protocol, for Canada to condone the trial of a 15 year-old Canadian for alleged crimes committed during armed conflict and hostilities, and pursuant to a sub-standard legal process.

As a co-State Party to both the ICCPR and the First Optional Protocol, Canada would be upholding its legal obligations in pressing the United States to provide him with the protections of both treaties.  But Canada can do more to protect Mr. Khadr’s rights.  Canada must seek his repatriation.

On Friday, July 30, 2010 the Supreme Court of Canada rendered its decision in R. v. Cornell, 2010 SCC 31, a case that considered the reasonableness of “hard entry” searches.  A hard entry usually involves the police entering a home to conduct a search with the use of force and surprise. In this case, nine members of the Calgary Tactical Unit, all wearing balaclavas, rammed through the front of the Appellant’s home and entered the dwelling with loaded weapons drawn and raised.   The CCLA intervened in the case and argued that invasive entry tactics to search personal residences should only be used when they are necessary to protect officer safety or prevent the destruction of evidence, and even then, only where the benefits outweigh the potential dangers. A four-judge majority of the Supreme Court found the search in Cornell was reasonable while three judges dissented, finding the search a violation of s. 8 of the Canadian Charter of Rights and Freedoms.  The dissenting judges would have excluded the evidence as a result of the breach.

Read a copy of the CCLA’s factum here.

Read a copy of the decision here.

On July 22nd, 2010, the Federal Court of Appeal stayed a recent Federal Court decision in the case of Omar Khadr.  Chief Justice Blais found that serious questions are raised about the division of powers between Courts and the Executive.

Earlier this month, Justice Zinn of the Federal Court ruled that Canada must provide Mr. Khadr with a list of remedies, within seven days, to cure the Charter violations he suffered when interrogated by Canadian officials at Guantanamo Bay.

Chief Justice Blais of the Federal Court of Appeal ordered a stay, pending appeal.  He found  that serious questions are raised about whether a judge can give himself or herself powers to “supervise” the exercise of Crown prerogative — especially in a context like this one, when the Supreme Court of Canada would not do so.  Chief Justice Blais wrote that Justice Zinn’s decision could cause irreparable harm as an “affront to the division of powers”, and improper interference by the Courts in the context of foreign relations and national security.

However, the CCLA points out that in the January 2010 Supreme Court of Canada decision, Canada (Prime Minister) v. Khadr, the Supreme Court noted that the Executive power is not exempt from judicial scrutiny to determine if government actions comply with the Charter.  Further, while recognizing that the Executive power is responsible for, and best-placed, to take decisions  under the royal prerogative,  Courts retain a narrow power to intervene in matters of foreign affairs and “to make orders ensuring the government’s foreign affairs prerogative is exercised in accordance with the Constitution.”  This remedial power will only be exercised cautiously, and in Khadr, the Supreme Court left it to the Executive to find an appropriate remedy “at this time”, given the evidentiary uncertainties.

Which brings the issue full circle, as Mr. Khadr is still left without a remedy for the breach of his Charter Rights.  The Supreme Court in its January decision noted that a “present remedy” can be required for past breaches, particularly when the effects of those past breaches  ”violate present liberties.”

Chief Justice Blais writing for the Federal Court of Appeal stressed that Canada has sent the US a diplomatic note, asking the US to disregard any information acquired from Canadian officials who interrogated Mr. Khadr.  The US has responded that its Military Commissions Act of 2009 contains safeguards to exclude any evidence obtained by torture.  The Chief Justice also reviewed the history of Omar Khadr’s case and Canada’s interventions with the US to ensure care, medical treatment and family contact were provided to Mr. Khadr.
It is expected that when Mr. Khadr’s pretrial proceedings resume before the US Military Commission in August 2010, his Commission-appointed military lawyer will seek to have the evidence against Mr. Khadr excluded.

The CCLA will continue to press for an appropriate remedy for Mr. Khadr which cures or ameliorates the breach of his Charter rights, and to monitor the US proceedings against him.

French

The Supreme Court of Canada released its decision today in Vancouver (City) v. Ward, a case in which the CCLA intervened to argue in favour of an award of damages for breach of Charter rights.  Mr. Ward was detained and strip searched by police after they received a tip that someone matching his description planned to throw a pie in the Prime Minister’s face at a public event.  Mr. Ward had been mistakenly identified and was released over four hours after his arrest.  The Supreme Court of Canada has upheld the lower courts’ rulings that Mr. Ward is entitled to monetary damages for breach of his s.8 Charter right to be free from unreasonable search and seizure.

The Court held that damages for breach of a Charter right may be appropriate in order to fulfill the purposes of compensation, vindication of the right, and/or deterrence from future violations.  Significantly, the Court held that a person seeking Charter damages need not exhaust other legal remedies and that, once it has been shown that damages would meet one of the purposes set out above, the state bears the burden of showing that other remedies are available to address the breach or that damages would interfere with good governance.  The CCLA is pleased that the Court has recognized that damages may be warranted where constitutional rights are violated and is hopeful that the existence of this remedy will help to deter and prevent the abuse of Charter rights.

This post is also available in: French

FOR IMMEDIATE RELEASE

Contact: Penelope Chester

Canadian Civil Liberties Association

Phone: (416) 363-0321

Fax: (416) 861-1291

pchester@ccla.org

www.ccla.org

Toronto, ON – July 22, 2010 – The CCLA welcomes the announcement by the Office of the Independent Police Review Director (OIPRD) that it will be conducting a systemic investigation of G20 policing. The CCLA is pleased that the issues to be investigated by the OIPRD are those identified by the CCLA in its institutional police complaints. The announcement comes just one week after the CCLA filed the five institutional police complaints, and on the same day it filed 78 individual police complaints.

Earlier this week, in a letter to the Independent Police Review Director, the CCLA had called on the OIPRD “to launch a full review of G20 policing in general, and of the conduct listed above in particular, under s.57 of the Police Services Act.” In particular, the CCLA had called on OIPRD to conduct a systemic review of the following five incidents:

(i) the dispersal of peaceful protesters at Queen’s Park on the afternoon of June 26;

(ii) the detention and mass arrest of individuals on the l’Esplanade on the evening of June 26;

(iii) the arrests and excessive use of force by police outside the Eastern Ave. detention centre on the morning of June 27;

(iv) the detention and mass arrest of individuals at Queen St. W. and Spadina Ave. on the evening of June 27; and

(v) the conditions of detention and the denial of due process rights at the Eastern Ave. detention centre throughout the weekend.

OIPRD announced today that: “The Director has determined that it is in the public interest to combine a number of G20 complaints and conduct a review of a systemic nature in accordance with Section 57 of the Police Services Act. Such a review would provide the most effective and complete investigation into the issues.  The review will examine the systemic issues related to allegations of unlawful searches, unlawful arrests, improper detention and issues related to the temporary holding facility during the G20. It will provide recommendations to address issues of a systemic nature for the overall improvement of police practices.”

The CCLA notes that OIPRD has not listed the forceful dispersal of peaceful protests by police in the scope of its systemic investigation and urges it to include this issue.

OIPRD is the civilian agency tasked with accepting and investigating public complaints against police policy and conduct in Ontario. It has jurisdiction over the Toronto Police Services, the Ontario Provincial Police and any other Ontario-based police force. It also has jurisdiction over out-of-province officers who were appointed peace officers in Ontario under the Interprovincial Policing Act, 2009, as many were for the G20 Summit.

Nathalie Des Rosiers, General Counsel for the CCLA, said that “CCLA welcomes the OIPRD investigation. We call on the OIPRD to conduct a prompt, thorough and transparent investigation that will respond to the needs of the public.”Des Rosiers also underscored the need for the investigation to look both at high-level issues such as the chain of command and TPS/OPP governance, as well as ’street-level’ issues such as the specific incidents of police misconduct experienced by individuals.

A copy of CCLA’s institutional G20 police complaint to OIPRD can be found here.

A copy of CCLA’s letter to OIPRD submitting 78 individual G20 police complaint and calling for a systemic review under s.27 of the Police Services Act can be found here.

Excerpts from the 78 individual G20 police complaints can be found here.

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