ONTARIO CHOOSES BAND-AID INSTEAD OF BANNING CARDING
[Toronto:] MARCH 24, 2016 – On Tuesday, March 22, 2016, the Ontario Government released its final Regulation on street-checks/carding. The African Canadian Legal Clinic is deeply concerned that this Regulation fails to fully and finally provide adequate protection for the fundamental rights and freedoms of African Canadians, as they do not prohibit anti-Black racism and racial profiling in the collection of individuals’ identifying information.
While the Regulation is a welcome and important step in the direction towards increasing accountability for the prevention of anti-Black racism in policing, the Regulation has serious shortcomings that markedly impede progress towards fair and equitable policing in Ontario. Among the most glaring limitations in the Regulation’s ability to protect African Canadians rights under the Canadian Charter of Rights and Freedoms and Ontario’s Human Rights Code are the following issues:
1. Carding Permitted During Investigations: The Regulation does not apply in far too many circumstances in which racial profiling and anti-Black racist policing rampantly occur, namely, during police investigations. In particular, the Regulation “does not apply with respect to an attempted collection made by a police officer for the purpose of investigating an offence the officer reasonably suspects has been or will be committed.”
2. Regulation Permits Sharing of Other Individuals’ Information Without their Knowledge or Consent: The Regulation does not apply when officers seek to collect identifying information from an individual about another individual other than themself.
3. Use of Vague Suspect Descriptions Permitted: The Regulation continues to allow street checks to occur even when officers only have a vague description of an individual. For instance, the Regulation permits the collection of identifying information with broad descriptions such as, “Black male with a baseball cap.”
4. Weak Rights Notification: The Regulation does not require officers to tell individuals from the very start of the interaction of either the reason for the interaction, or that they are not required to provide their identifying information. Officers are also not required to inform individuals that they have the right to walk away in circumstances when they do in fact have that right. There is also no standardized language required for the rights notification provisions to ensure that there is consistency and clarity in its delivery.
5. Receipts Without Reasons: Officers are not required to indicate the reason(s) for stopping and collecting the data of individuals on the receipt they must provide to them when they collect their identifying information. The receipts also do not include contact information for the Human Rights Tribunal of Ontario or the Human Rights Legal Support Centre.
6. Children and Youth Documented without Parental Consent: The Regulation does not require children and youth under 18 to be informed that they can call their parent or guardian before surrendering any identifying information to police.
7. Indefinite Data Retention: The Regulation makes it possible that all previous and future identifying information collected by police be stored and accessed in police databases forever.
8. No Standardization of Data Collection: The Regulation does not require clear standardization for the collection of data to ensure comparability and accountability across jurisdictions.3
9. Regulation Permits Carding Performance Targets for Police Divisions and Units: The Regulation allows special police units, such as the Toronto Anti-Violence Intervention Strategy, to have their performance rewarded on the basis of the number of successful and attempted carding interactions.
10. Absence of Training on Anti-Black Racism and Racial Profiling: There is no requirement that officers be trained on how to detect and avoid engaging in anti-Black racism and/or racial profiling when attempting to collect individuals’ identifying information.
“A careful reading of the Regulation reveals that it offers some notably progressive and hard-fought rights protections, but ultimately amounts to a band aid rather than an outright banning of carding in Ontario” said Anthony Morgan, a lawyer at the African Canadian Legal Clinic. “While the Regulation offers important new mechanisms for holding police accountable when they seek to collect individuals’ information, it falls short of prohibiting and preventing anti-Black racism and/or racial profiling that African Canadians have chronically experienced in the collection of their identifying information.”
In the coming weeks, the African Canadian Legal Clinic will be reaching out to other African Canadian-serving organizations, institutions and leaders for the purpose of hosting a public education forum on the new Regulation.
For further information contact:
Anthony Morgan, Policy & Research Lawyer, African Canadian Legal Clinic
(T): 416-214-4747 Ext. 23
(C): 416 578-9014
African Canadian Legal Clinic Reports to the United Nations on Anti-Black Racism in Canada
Canada’s continued and longstanding failure to adequately protect and promote the civil and political rights of African Canadians is detailed by the African Canadian Legal Clinic (ACLC) in a new, June 2015, report entitled, Civil and Political Wrongs: The Growing Gap International Civil and Political Rights and African Canadian Life. The report can now be found on the website of the UNHRC at the following link:
As Canada’s only African Canadian-serving organization with status before the United Nations Economic and Social Council, the ACLC prepared this new report for the United Nations Human Rights Committee (“UNHRC” or “the Committee”).
On July 7 and 8 2015, Canada’s human rights record formally came under the review at the 114th Session of the UNHRC. At this Session, the Committee scrutinized Canada’s commitment to its obligations under the UN’s International Covenant on Civil and Political Rights (ICCPR). Since then, Canadian media have rightfully highlighted the UN’s expressed concerns regarding Canada’s treatment of Aboriginal Peoples. However, what has not been reported is Canada’s continual breach of its international human rights obligations towards Canada’s African Canadian community.
Within the latest ACLC report to the UN you will find some of the most up-to-date statistics on the state of the African Canadian community in 2015. Summarizing the Black experience in Canada, the report states:
The African Canadian experience continues to be one of extreme marginalization and disadvantage; restricted access to housing; racial profiling in policing, security, education and child welfare; criminalization; over-representation in the criminal justice system; high levels of unemployment; and disproportionate and extreme poverty. This alarming state of affairs contravenes a number of Canada’s obligations under the ICCPR.
In addition to documenting the specific ways in which African Canadians are denied equal protection of their civil and political rights under Canada’s international treaty obligations, the report concludes by providing more than 30 recommendations for change.
To learn more about the United Nations Human Rights Committee, you may visit their website at: http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx.
If you have any questions or require further information, please do not hesitate to contact Anthony Morgan, Policy & Research Lawyer at the ACLC, at 416 214-4747 Ext. 23 or firstname.lastname@example.org.
PRISON WATCHDOG’S NEW REPORT HIGHLIGHTS ANTI-BLACK RACISM IN CANADIAN PRISONS
[Toronto:] MAY 29, 2015 – In a newly released report entitled, “Administrative Segregation in Federal Corrections: 10 Year Trends”, the Office of the Correctional Investigator has once again exposed the deep currents of anti-Black racism in Canada’s federal prison system.
The report reveals that since March 31, 2005:
- The population of African Canadians in federal prisons has increased by 77.5%, whereas the Caucasian population decreased 6.8%.
- The number of segregation admissions for African Canadian inmates has increased by 100.4%.
- African Canadian offenders who were admitted to segregation in 2013-2014 were less likely than Caucasians to have a history of self-injury (6.5% compared to 13.8%).
“These new findings confirm that there is a crisis in corrections when it comes to African Canadian inmates” said Margaret Parsons, Executive Director of the African Canadian Legal Clinic. “It is time for the federal government to take decisive action in responding to this crisis by adopting a comprehensive action plan for reducing the over-representation of African Canadians in prisons and rates of segregation admissions.” Parsons continued.
In the coming weeks, the African Canadian Legal Clinic (ACLC) will be meeting with the Office of the Correctional Investigator to discuss these new findings. Towards the end of developing a comprehensive policy framework for addressing the over-incarceration and treatment of African Canadian inmates, the ACLC is calling for an urgent meeting with the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness, and Mr. Don Head, Commissioner of the Correctional Service of Canada.
“This situation is untenable and calls for an immediate response and urgent action from senior officials in federal corrections” said Anthony Morgan, Policy & Research Lawyer at the ACLC.
For further information contact:
Anthony Morgan, Policy & Research Lawyer, African Canadian Legal Clinic
(T): 416-214-4747 Ext. 23
R v Nur at the Supreme Court of Canada
The ACLC was granted leave to intervene in a court case at the Supreme Court of Canada on the minimum sentencing laws that are resulting in the over incarceration of African Canadians. More specifically, the ACLC filed a factum for this matter, and presented oral argument which was heard November 7, 2014, which contended that minimum sentencing laws, in relation to first time offenders who are charged with possessions of loaded firearms, offended the Charter of Rights and Freedoms. The ACLC previously intervened at the Ontario Court of Appeal on this same matter and the court agreed that the minimum sentencing laws did offend the Charter, as they often result in unfair punishments to offenders who plead guilty on account of systemic problems with the criminal justice system. The Provincial and Federal governments appealed this decision to the Supreme Court of Canada. The ACLC is awaiting the SCC judgement on this matter and we are hopeful that the ruling will reference the ACLC’s factum, oral submissions and issues of racism in the criminal justice system which leads to a disproportionate number of African Canadian men being imprisoned for firearm offences.
RACIAL JUSTICE REPORT CARD SHOWS PROVINCIAL PARTIES NEED TO DO MORE TO ADDRESS RACIAL INEQUITIES
June 4, 2014 – The Colour of Poverty Campaign – Colour of Change Network (COP-COC) is releasing its 2014 Racial Justice Report Card for Ontario which scores the three main Ontario political parties on their records and campaign platforms with respect to issues affecting racialized communities.
Since the last election in 2011 when COP-COC released the first Racial Justice Report Card for Ontario, there has been some improvement in certain areas. But racialized communities continue to experience higher rates of poverty, homelessness, and health inequities, while having greater difficulties accessing justice and human rights systems to address discrimination. None of the parties have demonstrated a deep understanding of the issues facing racialized communities (First Peoples and peoples of colour) in Ontario. Based on their performance since the last provincial election, COP-COC gave the parties the following grades:
Liberals: B- NDP: C- PC: F
“As racialized communities members and other marginalized groups struggle to make a living, the politicians are engaging in political posturing without much regard to the lived reality of most Ontarians,” said Avvy Go, Clinic Director of Metro Toronto Chinese & South East Asian Legal Clinic. “During the televised leadership debate, none of the leaders even talked about the issues racialized communities face let alone what they will do to address them. In a province that is close to 1/3 First Peoples and peoples of colour we need all three parties to get on board with bringing forward such measures as employment equity to remove barriers to economic participation by racialized groups members,” said Go.
“There has been little attention paid to issues like the social determinants of health, access to health services, and health equity,” said Yogendra Shakya, Senior Research Scientist of Access Alliance Multicultural Health and Community Services. “Among the many issues that negatively impact on racialized communities is the 3-month waiting period for OHIP eligibility imposed on newcomers to Ontario, the majority of whom are racialized. As of now, none of the three parties is prepared to say that they would repeal the 3-month waiting period if elected,” added Shakya.
“Peoples of colour accounted for approximately 12% of Canadian households in 2006. Fifty-three percent of them live in Ontario. Twenty-three per cent of racialized households were in core housing need – living in homes below adequacy, suitability or affordability standards and unable to afford an acceptable alternative. By contrast, only 11% of non-racialized households in Canada were in the same position,” said Yutaka Dirks, Advocacy and Outreach Coordinator, Advocacy Centre for Tenants – Ontario. “Government action is sorely needed to address the housing crisis in this province.”
“In this election, issues such as human rights, racial profiling and legal aid have largely been ignored by all three parties,” said Margaret Parsons, Executive Director of African Canadian Legal Clinic. “While there has been some new investment in the legal aid system, it is nowhere near enough to make the system sustainable. As racialized communities are over-represented among the poor, they look to the Government to ensure they have equal access to justice,” added Parsons.
Any political party who wants to form the next Government of Ontario must make clear their policy positions with respect to these and other matters that have the greatest impact on the lives of members of Ontario’s ethno-racially diverse communities of colour and First Peoples communities. COP-COC calls on all political leaders to take concrete steps to address the real and growing racialized exclusion and marginalization that exists in Ontario today.
To read the full Report Card, please click here.
For further information, please contact:
Avvy Go, Metro Toronto Chinese & South East Asian Legal Clinic at (416) 971-9674.
Canadians Call on Minister of Immigration to Celebrate Family Day By Strengthening Family Class Reunification
TORONTO / Feb 14, 2014 / – A coalition of community based organizations and academic institutes across Canada are calling on the Hon. Chris Alexander, the Federal Minister of Citizenship and Immigration, to mark Family Day 2014 by making a commitment to strengthen the family class immigration program.
“Canada needs to renew its commitment to families and send a strong message to immigrants that not only their skills and human capital but also their families are welcome,” said Harald Bauder, Academic Director of the Ryerson Centre for Immigration and Settlement and Professor at Ryerson University.
Up until the early 1990s, Canada had a world renowned family reunification program which saw family class immigrants make up the majority of immigration to Canada each year. Over the last two decades, the proportion of family class immigrants has gradually declined, and currently represents less than a quarter of the total annual immigration intake.
Further restrictions to family class sponsorship were introduced by the previous Minister of Immigration. These changes which took effect on January 2, 2014 are making it much more difficult for Canadians to be reunited with their parents and grandparents.
“All families regardless of socioeconomic conditions should be able to reunite with their parents and grandparents. Extended family is important to all Canadians, including immigrant and refugee families” said Debbie Douglas, Executive Director of OCASI – Ontario Council of Agencies Serving Immigrants.
Community organizations in the “My Canada Includes All Families” Campaign recently wrote to the new Minister of Immigration, asking him to increase the number of family class immigrants allowed into Canada each year, to lower the income requirement for sponsorship eligibility, and to broaden the definition of “family members” with respect to who can be sponsored.
“Family class immigrants of all ages and backgrounds contribute significantly to the economic, social and cultural advancement of Canada. They form the backbone of our communities and their presence allows their families to flourish. Canada as a whole is better off because of the sacrifices all of our parents and grandparents make to keep our families strong,” said the coalition in its letter to the Minister.
“The changes to family class immigration which took effect on January 1, 2014 vis-à-vis the sponsorship of parents and grandparents are making it much more difficult for Canadians to be reunited with their loved ones. Moreover, these changes have a disproportionate negative impact on women, refugees, and other marginalized communities who are now facing greater challenges in meeting the hardened financial eligibility for sponsors,” the letter continued.
“The Federal Government has said that it wants to support Canadian families and promote family values. Then let it show support by allowing all Canadians an equal opportunity to be reunited with their families”, said Avvy Go, Clinic Director at Metro Toronto Chinese and Southeast Asian Legal Services.
As Canadians in many provinces are getting ready to celebrate Family Day or other parallel mid-February holidays, the Campaign calls on all Canadians to contact the Minister of Immigration as well as their local Member of Parliament to ask for their renewed commitment to family sponsorship, and as an expression of that commitment, their reversing of the newly-introduced changes.
The letter to the Minister has been endorsed by the following organizations: Canadian Arab Federation, Canadian Council for Refugees, Chinese Canadian National Council Toronto Chapter, Coalition of Black Trade Unionists Ontario Chapter, Colour of Poverty – Colour of Change, FCJ Refugee Centre, Metro Toronto Chinese & Southeast Asian Legal Clinic, Migrante Canada, Ontario Council of Agencies Serving Immigrants, Ryerson Centre for Immigration and Settlement, South Asian Legal Clinic of Ontario, African Canadian Legal Clinic and YWCA Canada.
ACLC Coaches Osgoode Hall Law School to Win BLSA Diversity Moot Competition
On February 2, 2014, a team of students from Osgoode Hall Law School swept away the competition at the Julius Alexander Isaac Diversity Moot Competition in Halifax, Nova Scotia. Osgoode’s appellant team of Busayo Ayodele and Richard Lanns won the competition overall, Osgoode’s respondent team of Jeff Hernaez and Zorn Pink won the Best Factum Award, and Ayodele was named Best Oralist. Third year Osgoode student Anushua Nag served as the team researcher. The team was coached by Roger Love and Virginia Nelder, lawyers at the African Canadian Legal Clinic.
The appellant and respondent teams from Osgoode edged out stiff competition from students representing the faculties of law at the University of Toronto and the University of Ottawa, before squaring off in an all-Osgoode final round.
The Diversity Moot challenges participants to develop their advocacy skills in cases which involve diversity law, equity issues, human rights and anti-Black racism. The competition is open to law students across Canada.
This year teams prepared written submissions and presented oral arguments in response to a fact pattern based on the Ontario Court of Appeal’s decision in Johnson v. General Motors of Canada Ltd. In July 2013 the Court of Appeal overturned a decision of the Ontario Superior Court of Justice which found that Johnson, an African Canadian employee, was subjected to a poisonous work environment due to racism at a General Motors plant. The Court of Appeal also overturned the trial judge’s finding that Johnson was constructively dismissed when General Motors failed to provide Johnson with an alternate position that would prevent him from coming into contact with individuals that had engaged in discriminatory conduct.
At the Diversity Moot, appellant teams from each school presented arguments in support of striking down the Court of Appeal’s decision while the respondent teams argued that the decision should be upheld.
The Julius Alexander Isaac Diversity Moot competition was one of the many highlights of the Black Law Students’ Association of Canada’s 23rd Annual Conference. A portrait of the late Burnley Allan “Rocky” Jones, an esteemed African Canadian lawyer and activist, was also unveiled at the Conference. The Diversity Moot is named in honour of the late Chief Justice of the Federal Court of Appeal, Julius Alexander Isaac, who passed away on July 16, 2011. Isaac, born in Grenada, was the first Black judge to sit on a Federal Court in Canada.
Federal Court of Appeal Upholds the Constitutionality of Penalty for Disseminators of Hate Speech
February 3, 2014
The African Canadian Legal Clinic applauds the Federal Court of Appeal for its declaration that section 13 of the Canadian Human Rights Act and its corresponding penalty provision is a reasonable limit on freedom of expression guaranteed in the Canadian Charter of Rights and Freedoms. On November 14, 2013 the Federal Court of Appeal heard a challenge to the constitutionality of the section 13 prohibition on dissemination of hate speech, and section 54(1)(c) which provides that the Canadian Human Rights Tribunal may order a person who has breached section 13 to pay a penalty of up to $10,000. Lawyers opposed to section 13 argued that it and section 54(1)(c) violates section 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms.
On behalf of the ACLC, interveners in the case, Bruce B. Ryder (Associate Professor, Osgoode Hall Law School) and Virginia Nelder (ACLC Staff Lawyer) argued that Parliament chose to enact the penalty provision to address the broader discriminatory effects of hate speech on society, not to punish the communicator but to create incentive for others to comply with the Act, and that this was a reasonable choice to deter others from causing this broader societal harm, consistent with the Act’s goal of achieving compliance with the principle of substantive equality.
The ACLC’s position was accepted by the Court. In its decision released on January 31, 2014 the Court held that “paragraph 54(1)(c) is designed to induce compliance with the statutory scheme in order to impose a measure of financial accountability on those in breach of section 13 and to deter future breaches. The penalty provisions thus advance the statutory objective set out in section 2, namely, to give effect to the principle that individuals should have an opportunity equal to that of others to lead the lives that they are able and wish to have without being hindered by discriminatory practices based on a prohibited ground. … Without paragraph 54(1)(c) most violators of section 13 would be exonerated from financial liability – a valuable tool for enhancing compliance with the law – because hate speech typically targets vulnerable groups as a whole, rather than individuals within the group.”
The ACLC was alone in defending the penalty provision at the Federal Court of Appeal. The Attorney General of Canada did not appear at the Federal Court to defend Parliament’s power to put in place effective remedies to deter hate speech. Nor did the Canadian Human Rights Commission, in its submissions, defend the penalty provision.
The ACLC expects that this decision will have a beneficial impact on the African Canadian community by reinforcing jurisprudence holding disseminators of hate speech accountable for demeaning, vilifying and marginalizing groups of individuals who share characteristics protected by the Act. Professor Ryder notes that “in giving a constitutional seal of approval to section 13 in its unanimous opinion, the Court paved the way for a future Parliament to reinstate the prohibition on hate speech. The Court accepted the ACLC’s position that Parliament can and should back up the prohibition with a robust set of remedies, including meaningful forms of financial accountability for the public harms caused by hate speech.”
To read the ACLC’s Memorandum of Fact and Law, click here.
To read the Federal Court of Appeal’s decision, click here.
Opposition growing against indefinite immigration detention in Canada
December 11, 2013
Toronto – Naomi Klein, John Greyson, Council of Canadians, Canadian Union of Postal Workers, Law Union of Ontario, Canadian Centre for Victims of Torture, Public Services Alliance of Canada – Ontario, Shit Harper Did, and over 50 other leading labour, civil society, grassroots groups and individuals representing over a million people have joined with migrant detainees in Lindsay, ON, and their families calling for an end to indefinite detention, maximum security incarceration of migrants and an overhaul of the adjudication process.
Full list of endorsers and demands: http://endimmigrationdetention.com/endorsers/
Migrants in Lindsay, ON, have been on strike since September 17th. They have gone on hunger strike (two of them for over 60 days), refused to attend their detention hearings or enter their cells; and participated in other political actions. Striking migrants have faced reprisals with many deported, locked up in segregation, moved to other prisons and denied access to legal counsel. Yet actions have continued. A demonstration is now planned at Lindsay jail at 1pm on December 14th, with migrants on the inside organizing a 24 hour fast.
“It was very moving and upsetting to meet some of the Lindsay detainees a few weeks ago. So much of what they described to us struck a chord, given what we just went through in Cairo. For detainees and their families, to suffer indefinite detention is to be consigned to a terrible limbo, not knowing what the future holds, not knowing how long the ordeal will last. I hope that people across the country join the detainees and their families calling for their release and an end to this injustice,” says John Greyson who was held in a jail in Cairo for 51 days.
Ontario Court of Appeal Strikes Down Mandatory Minimum Sentences for Gun Possession
November 12, 2013
The African Canadian Legal Clinic (ACLC) applauds the Ontario Court of Appeal for its declaration that section 95(2) of the Criminal Code violates the Canadian Charter of Rights and Freedoms. In R v. Nur, 2013 ONCA 677, released on November 12, 2013, the Court held that the three year mandatory minimum sentence for a first time offence of possession of a restricted firearm fails the ‘gross disproportionality’ test under section 12 of the Charter and is therefore unconstitutional and to be declared of no force or effect.
The ACLC expects that this decision will have a beneficial impact on the African Canadian community by limiting and reducing the disproportionately high rates of incarceration of African Canadian offenders in the federal prison population.
To read our press release click here.
Ontario Poverty Reduction Strategy Consultations
The Ontario Poverty Reduction Act was passed in 2009 as the Ontario government’s comprehensive long-term strategy to reduce poverty guided by the vision of a province where every person has the opportunity to achieve his or her full potential, and contribute to and participate in a prosperous and healthy Ontario. The government is currently undertaking the first 5-year assessment of its Poverty Reduction Strategy. The ACLC has made submissions to the government’s consultation regarding the Strategy’s impact on poverty in the African Canadian community. To read the ACLC’s submissions, click here.
“Words matter” – Supreme Court of Canada Upholds Human Rights Protection of Marginalized Groups from Harmful Effects of Hate Speech
February 27, 2013
The African Canadian Legal Clinic (“ACLC”) categorically applauds the Supreme Court of Canada (SCC) for its definitive recognition of the harmful effects of hate speech on historically marginalized groups, such as African Canadians, and its affirmation of the importance of human rights legislation that protects these groups from public dissemination of speech that exposes them to ‘hatred’, ‘contempt’, ‘detestation’ or ‘vilification’.
The SCC released its unanimous decision today in Saskatchewan (Human Rights Commission) v. William Whatcott, 2013 SCC 11, in which it upheld (in part) the Saskatchewan Human Rights Commission’s finding that Mr. Whatcott violated section 14 of the Saskatchewan Human Rights Code by distributing flyers that expose persons to hatred and ridicule on the basis of their sexual orientation. Section 14 provides inter alia that “no person shall publish or display … any representation … that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.” Mr. Whatcott challenged the Commission’s finding on the basis that section 14 violates his rights to freedom of religion and freedom of expression protected by sections 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms.
The ACLC intervened in the case, and argued that the widespread presence of anti-Black racism in Canadian society and the fact that almost half of the few cases that have proceeded under s.14 have involved hate propaganda targeting the Black community underlie the importance of a contextual analysis that takes into account the social realities and vulnerability of the African Canadian community. Such an analysis will ensure that the freedom of expression and religion guarantees do not become a ‘constitutional right to be racist’ or weapons with which to defend the status quo, and that arguments of hate propagandists, cloaked in terms of freedom of expression or religion, are not permitted to obscure the fact that what is truly at issue is the right of marginalized groups to be treated as equals and to be free from hate.
The SCC acknowledged that the Court was required in this case to balance the fundamental values underlying freedom of expression and freedom of religion with competing Charter rights and other values essential to a free and democratic society, including a commitment to equality and respect for group identity and the inherent dignity owed to all human beings as codified in section 15 of the Charter and Canada’s legal obligations with respect to international treaty commitments.
The Court stated that “[h]ate speech is, at its core, an effort to marginalize individuals based on their membership in a group. … Hate speech, therefore, rises beyond causing emotional distress to individual group members. It can have a societal impact. If a group of people are considered inferior, sub-human, or lawless, it is easier to justify denying the group and its members equal rights or status. … Hate speech lays the groundwork for later, broad attacks on vulnerable groups. These attacks can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide …”
Ultimately, the SCC found that section 14 does limit Mr. Whatcott’s freedom of religion and expression, but that a limitation on public religious or political expression that rises to the level of hatred is justifiable in a free and democratic society, as provided for in section 1 of the Charter. The Court held that “[p]olitical expression contributes to our democracy by encouraging the exchange of opposing views. Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond… s. 14 of the Code provides an appropriate means by which to protect almost the entirety of political discourse as a vital part of freedom of expression. It extricates only an extreme and marginal type of expression which contributes little to the values underlying freedom of expression … ”
To read the ACLC’s factum at the SCC, click here.
To read the Supreme Court’s decision, click here.
International Human Rights Day Statement – Governments Should Respect Human Rights in Canada
December 10, 2012
At the conclusion of “30 in 30 – From Remembrance to Equity, Inclusion and Human Rights”, the Colour of Poverty – Colour of Change educational initiative to deepen and broaden Ontarians’ understanding of human rights, racialized communities (First Peoples and peoples of colour) and their allies call on all orders of Government in Canada to fully honour and respect human rights on this December 10th, the International Day for Human Rights.
Over the last thirty days, beginning with Remembrance Day, community groups and their labour allies have organized various events and activities to strengthen their shared belief in and commitment to human rights in Ontario.
As members of racialized communities remain among those who are most marginalized and disadvantaged, politically, economically and otherwise, more can and should be done by governments to address the growing racial disparities and inequities in Canada.
Across Ontario, families of racialized communities are at a minimum two to four times more likely to live in poverty; even child poverty has become racialized, with one in ten children of non-racialized background living in poverty, versus one in five for children of East Asian descent, one in four for South Asian and Indigenous (Aboriginal), one in three for West Asian and Latin American, and one in two for African.
Over the last decade, institutions that were set up to protect and promote human rights have either had their funding severely cut back, or were completely decimated thanks to ideologically or suspect austerity driven political agendas. The defunding of the Court Challenges Program at the federal level, and the refusal to establish the anti-racism and disability secretariats as mandated by the Ontario Human Rights Code at the provincial level, are but two examples of governments’ failures to fulfill their human rights obligations. Meanwhile, efforts by non-governmental organizations and labour unions to support rights based initiatives have been undermined through governmental indifference at best, and negative political interference at worst.
As a country founded on the principles of democracy and Rule of Law, Canada is well placed to make human rights for all Canadians a reality, as opposed to an ideal that exists only on paper or one that is only offered to the chosen few. Canadians consistently demonstrate their strong support for the Canadian Charter of Rights and Freedoms, and demand that their Governments act in accordance with the fundamental principles enshrined in the Charter and in human rights legislation more generally.
It is time for our political leaders to stand up for human rights, and stop the targeted or strategic attacks on all or some of the social, political, civil, cultural and economic rights of all Canadians, including the right to be free from discrimination, the right to organize, and the right to a decent standard of living.
UN Committee on the Rights of the Child Raises Several Concerns About Treatment of African Canadian Children and Youth
October 9, 2012
On Friday October 5, 2012, the Committee on the Rights of the Child released its Concluding Observations on the third and fourth periodic reports of Canada. The Committee drew heavily on “Canada’s Forgotten Children,” the Alternative Report prepared by the African Canadian Legal Clinic and highlighted several areas of concern relating specifically to the condition of African Canadian children and youth.
Moya Teklu, Policy Research Lawyer at the African Canadian Legal Clinic, welcomed the Committee’s Concluding Observations. “With its Concluding Observations, the Committee has drawn international attention to the very significant issues affecting African Canadian children and youth,” said Teklu. “The Committee has highlighted such issues as the overrepresentation of African Canadian children in the juvenile justice system and state care; the high rates of drop out, suspension, and expulsion in the school system; and the government’s failure to ensure equitability in the distribution of resources allocated to the implementation of the Convention on the Rights of the Child.”
The Committee’s Concluding Observations contain a number of recommendations aimed at addressing the disadvantaged position of African Canadian children and youth. The Committee recommended, for example, that Canada address the overrepresentation of African Canadian children and youth in the criminal justice system by conducting an extensive study of systemic overrepresentation and developing an effective action plan towards eliminating disparities. To reduce the overrepresentation of African Canadian children in state care and prevent the separation of African Canadian children from their family environment and community, the Committee recommended that Canada work with minority community leaders to render timely and culturally appropriate services to parents and legal guardians and to find suitable solutions for children from these communities in need of alternative care. To address the widespread income inequality affecting African Canadian children and youth, the Committee recommended that Canada guarantee that funding and other support, including welfare services, provided to minority children is comparable in quality and accessibility to services provided to other children.
Margaret Parsons, Executive Director of the African Canadian Legal Clinic, welcomed the Committee’s Concluding Observations. “For too long, the government has taken a ‘one size fits all’ approach to policy implementation that has both swept current inequalities under the rug and exacerbated current problems,” said Parsons. “The Committee has acknowledged that this approach has not and will not work. The ACLC expects that the Canadian government will take these recommendations to heart when developing and implementing future policies.”
African Canadian community disproportionately targeted by gun violence
July 19, 2012
On July 19, 2012, members of Toronto’s African Canadian community held a press conference to address recent incidents of gun violence, continued concerns about community safety, responses of municipal and provincial officials, and proposed long-term solutions to address gun violence and related issues of poverty.
These individuals and organizations wanted to ensure that the voices and perspectives of the members of the African Canadian community were at the table when any discussions about short and long-term solutions took place; and that the focus remained on increased community building and social programming and not on increased policing and criminalization.
The press conference was covered by a number of media agencies:
- AM 680, “African Canadian community leaders speak out against gun violence”
- Global News, “African Canadian community leaders discuss gun violence in Toronto”
- CTV News,”Community leaders discuss an end to gang violence”
- The Province, “Black leaders want a voice as Toronto shooting deaths continue”
- City TV, “Leaders from Toronto’s black community respond to gun violence”
Almost immediately following this press conference, members of the African Canadian community were invited to meet with Toronto Police Chief William Blair, Ontario Premier Dalton McGuinty and Mayor Rob Ford.
Chief Blair and Premier McGuinty agreed that gun violence could only be addressed by adopting a “balanced approach” that included both increased policing and increased youth programs. On July 23, 2012, however, Premier McGuinty announced that the province would be providing permanent funding to the Toronto Anti-Violence Intervention Strategy (TAVIS) and increased funding to the Provincial Anti-Violence Intervention Strategy (PAVIS) without making a similarly firm monetary commitment to youth programs and services.
Instead, Premier McGuinty asked Minister Eric Hoskins (Ministry of Children and Youth Services) and Minister Madeleine Meilleur (Ministry of Corrections and Community Safety) to to review existing programs and report back in 30 days on which programs could use future investment.
Since that time, members of the African Canadian community have formed the African Canadian Coalition of Community Organizations (“ACCCO”) and met with Ministers Hoskins and Meilleur to ensure that any solution to gun violence places the African Canadian community in a central role.
Open Letter to Barbara Hall, Chief Commissioner at the Ontario Human Rights Commission
May 7, 2012
The ACLC has responded to the Ontario Human Rights Commission’s (OHRC) recent settlement with the Ottawa Police Services Board. For a number of reasons, the Clinic feels that the settlement falls far short of a reasonable settlement and that the OHRC has betrayed and abandoned African Canadian victims of racial profiling in favour of maintaining positive relations with the Ottawa Police Service. Click here to read the ACLC’s letter to Barbara Hall, Chief Commissioner at the OHRC.
Ontario Human Rights Commission Betrays and Abandons Victim of Racial Profiling
April 27, 2012
At about midnight on 29 May 2005 18-year old Chad Aiken, an African Canadian male, was driving his mother’s Mercedes Benz, with four other young racialized passengers. Mr. Aiken was pulled over by the Ottawa Police Service and alleges that the actions of the police officers at the point of stop and post-stop interaction amount to a clear case of racial profiling. This was not the first or last time Mr. Aiken was racially profiled by the Ottawa Police. In fact, it happens on a regular basis. Research in Canada and the U.S. suggests that Blacks are among the primary victims of racial profiling.
Virginia Nelder, Staff Lawyer at the African Canadian Legal Clinic, explains that “racial profiling perpetuates the social and historical disadvantage and stereotypes experienced by African Canadians in Canadian society, and contributes to systemic racism against African Canadians that exists at all levels of the criminal justice system”
Mr. Aiken, represented by the African Canadian Legal Clinic, filed a complaint with the Ontario Human Rights Commission. The Commission decided that the complaint had merit and referred it to the Human Rights Tribunal of Ontario for adjudication. The issue of whether the Ottawa Police Service should collect, analyze and publicly report on data regarding the race of individuals stopped and questioned by the Ottawa Police came before the Human Rights Tribunal of Ontario on 23 April 2012.
Donald McLeod, co-counsel for Mr. Aiken, indicated that “pretext stops of African Canadians by the police, whether in a car or simply walking on the street, are unwarranted and a violation of basic rights and human dignity protected by the Ontario Human Rights Code.”
Pretext stops occur when an officer’s primary motivation in stopping and questioning an individual is to conduct a criminal rather than a traffic investigation, and have been found by the courts to violate the Canadian Charter of Rights and Freedoms. Pretext stops are one of the primary means by which racial profiling is manifested.
On 27 April 2012 the Ontario Human Rights Commission, a party to the proceeding at the Human Rights Tribunal, reached a settlement with the Ottawa Police Service without consensus of the Complainant. In light of research in this area and in consultation with an expert in racial profiling retained by the ACLC, it is the Complainant’s position that the settlement lacks key elements that are of fundamental importance to the African Canadian community in Ottawa, and across the province. Margaret Parsons, Executive Director of the African Canadian Legal Clinic, stated
“This settlement is clear proof that the Ontario Human Rights Commission is not a friend of the African Canadian community, and as a provincial body entrusted with protecting, advancing and defending the human rights of African Canadians the Commission has abandoned this role in favour of chumming up with a police service that is notorious for egregious acts of racial profiling against African Canadians. [Chief Commissioner] Barbara Hall has failed to speak out against blatant incidents of anti-Black hate, police violence against Black suspects and other forms of anti-Black racism, and has proven once again that the Commission is not willing to take a strong public stance regarding the insidious and systemic problem of racial profiling. Instead, the Commission is playing politics with the Black community, and has demonstrated that their real interest is in the optics of conciliation.”
The police have given notice that they intend to bring a motion to dismiss Mr. Aiken’s request for data collection given their settlement with the Commission. The motion will be heard in June 2012.
ACLC Urges TPSB to Act Quickly on Allegations of Racial Profiling
April 5, 2012
On Thursday April 5, 2012, the ACLC appeared before the Toronto Police Services Board to deliver a presentation on the Board’s proposed response to new allegations of racially-biased policing by the Toronto Police Service. The presentation was prepared by Roger Love (Advice Counsel) and Moya Teklu (Policy Research Lawyer).
Turn to the 53 minute mark to watch the presentation.
Click here for a copy of the written submissions.
ACLC Reports to 2012 Articling Task Force on Disproportionate Impact of Articling Shortage on African Canadian Law Students
March 15, 2012
On March 15, 2012, the ACLC submitted its written report to the Law Society of Upper Canada 2012 Articling Task Force.
You can view the Clinic’s submissions here.
To all law students and legal professionals, if you agree with our submissions, email the Law Society to let them know. Also, if there is anything in the submissions with which you disagree, contact us to let us know.
Toronto Star News Series on Racial Profiling Addresses Concerns of African Canadian Community
In March 2012, the Toronto Star published the latest installment in a decade-long investigation into race, policing and crime in Toronto.
The series looked at Toronto Police Service police contact card data from 2008 to mid-2011 and found that African Canadians are overrepresented in police stops in each of the city’s 72 police patrol zones.
Click on the links below to read the articles.
- “Police board chair seeks race-based probe of stops” (March 15, 2012)
- “Toronto police stop and document black and brown people far more than whites” (March 9, 2012)
- “Violent crime in Weston-Mt. Dennis is down, youth feel harassed by Toronto Police” (March 9, 2012)
The ACLC will be staying on top of any new developments in this area.
UN Committee on Racism Questions Canada’s Treatment of African Canadians
February 23, 2012
On February 22 and 23 2012, the United Nations Committee on the Elimination of Racial Discrimination (“CERD”) considered Canada’s nineteenth and twentieth periodic reports on the government’s efforts to combat racial discrimination.
The African Canadian Legal Clinic (“ACLC”) prepared an alternative report, met with Committee members and was present at the CERD meetings to ensure that Canada was made to account for issue of anti-Black racism and the continued disadvantaged position occupied by African Canadians.
According to the Clinic’s Executive Director, Ms. Margaret Parsons, the ACLC drew the Committee’s attention to “growing rates of poverty, increased rates of incarceration, and high rates of anti-Black hate, as well as the complete absence of reliable disaggregated race-based data, and the phenomenon termed the ‘school-to-prison pipeline.’”
The Committee members, all of whom are experts in the field of human rights and racial discrimination, raised a number of concerns with respect to Canada’s treatment of it’s African Canadian population.
Mr. Anwar Kamal, the Committee’s Rapporteur for Canada, noted the glaring absence of disaggregated statistics from Canada’s state report while Ms. Dah, the expert from Burkina Faso, urged the government to be careful not to exclude data that will make it more difficult for the State to report on its implementation of the Convention on the Elimination of all forms of Racial Discrimination. This concern was also echoed by other Committee members who drew attention to and questioned the government’s recent decision to abolish the mandatory long-form census.
Mr. Pastor Murillo, the expert from Colombia, questioned Canada on the extent to which the historical contributions of African Canadians are reflected in school curricula and upcoming commemorations such as the bicentennial of the War of 1812.
Mr. Patrick Thornberry, the expert from Great Britain, questioned Canada on the high rates of suspension, expulsion and drop-outs and pointed to the success of the Africentric school in the Toronto District School Board as a possible best practice in this area.
Finally, Ms. Anastasia Crickley, the expert from Ireland, congratulated Canada on the adoption of its National Action Plan Against Racism in 2005, noted that this action plan ended in 2010, and questioned what Canada is doing to address the structural racism and the power imbalance with respect to Canada’s racialized groups today.
Many of the Committee members raised concerns about the overrepresentation of African Canadians in the criminal justice system and urged Canada to take immediate action to address this glaring disparity
Almost half of the Committee’s time was devoted to questioning Canada on issues relating to its African Canadian community. Ms. Parsons expressed great disappointment at the lack of attention paid to these issues by the Canadian delegation in its response to Committee questions and by the Canadian media in its coverage of this session.
ACLC Staff Weigh in on Spike in Number of Black Inmates
December 15, 2011
On December 15, 2011, CBC News Canada reported on the sharp increase in the propotion of African Canadian inmates in federal penitentiaries over the past decade and the investigation into causes and potential solutions that will soon be launched by Canada’s independent correctional investigator.
The story features commentary from two members of the ACLC staff: Social Worker, Tazio Clarke, and Policy Research Lawyer, Moya Teklu.
For more on the story, click here.
When is Free Speech Hate Speech?
October 24, 2011
Staff Lawyer, Sunil Gurmukh, appeared on TVO’s The Agenda with Steve Paikin.
Hate Speech at the Supreme Court
October 12, 2011
CBC’s “The National” featured a segment on the battle between the right to equality and the right to free expression at the Supreme Court of Canada.
To see a clip of the segment, click here.