Thursday, October 11, 2012

Undermining the rule of law: The case of Omar Khadr & CSIS.

Omar Khadr may finally be home, but he’s not exactly welcome. Government statements have repeatedly branded him as a war criminal” and a “convicted terrorist” — inflammatory characterizations that disregard both facts and laws.
The Canadian government has continually claimed that Khadr was given due process in the U.S., and many Canadians believe that his plea bargain arose from properly made charges in a legitimate court. But this is far from the truth.
In fact, Omar Khadr was never charged with U.S. criminal offences or internationally recognized war crimes. Years after he was captured on the battlefield in 2002, he was charged with newly minted offences under the 2006 Military Commissions Act, even though international law forbids prosecution for offences created after the fact.
For years, UN human rights bodies have expressed concerns about U.S. military commissions’ lack of legal safeguards, and about classifying children used in armed conflict as “unlawful enemy combatants” and subjecting them to ill-treatment, denial of access to education, and prosecution in military tribunals. Such treatment violates the protocol on children in armed conflict, which requires the U.S. and Canada alike to treat a youth like Khadr as a child soldier and work to rehabilitate and reintegrate him into society.
In 2008 the Supreme Court of Canada condemned Canadian officials’ participation in the Guantánamo Bay process as a violation of international law. A second ruling in 2010 excoriated Canadian officials, saying their behaviour “offends the most basic Canadian standards about the treatment of detained youth suspects.” Indeed, the court declared Khadr was entitled to a remedy, but left it to the government to decide how best to act. In response, Canada sent a diplomatic note asking the U.S. not to use information Canadian agents gave to U.S. officials. The U.S. replied that it was up to the military judge to decide what evidence to allow. Canada did nothing more to remedy the abuses. As a result, in August 2010, the U.S. military commission ruled all Khadr’s statements admissible, including those made as a result of torture and ill-treatment.
On the eve of Khadr’s plea bargain in October 2010, Radhika Coomaraswamy, then the UN Secretary-General’s Special Representative for Children and Armed Conflict, urged Canada to repatriate Omar Khadr for rehabilitation as required by the child soldier protocol. She said Khadr represented “the classic child soldier narrative: recruited by unscrupulous groups to undertake actions at the bidding of adults to fight battles they barely understand.”
Our government ignored her, too. Instead, Canadian officials agreed to Khadr’s plea bargain, saying it would be “inclined to favourably consider” repatriation to Canada after he had served a year of his sentence. The year came and went.
Then, in June this year, the UN Committee Against Torture urged Canada to repatriate Khadr and to redress the human rights violations found by the Supreme Court of Canada. Public Safety Minister Vic Toews disparaged the committee, saying: “When there are serious concerns regarding human rights violations across the world, it is disappointing that the UN would spend its time decrying Canada.” Minister of Foreign Affairs John Baird acknowledged that Omar Khadr’s repatriation occurred only after pressure from the U.S.
Imprisoned for more than a decade, Khadr has never been tried by any properly constituted court that afforded the judicial guarantees recognized as indispensable by civilized peoples. This is in direct violation of the Geneva Conventions. In addition, his rights have been systematically and flagrantly violated under the protocol on children in armed conflict, the International Covenant on Civil and Political Rights, and the Convention against Torture.
Now that Omar Khadr has returned home, some Canadians are expressing public safety fears. Although public safety is a valid concern, it can be served only by respecting the law. Public safety is to be determined by evidence, not by public fear and hatred fomented by derogatory, inaccurate characterizations by ministers and other public officials.
The behaviour of the government in the case of Omar Khadr demonstrates a profound lack of respect for Canada’s courts and the United Nations human rights system. Our government’s continued vilification of Omar Khadr undermines public respect for law and thwarts the fulfilment of Canada’s obligations under the child soldier protocol to ensure Khadr’s rehabilitation and reintegration into Canadian society. Canadian ministers and officials must stop ignoring the courts and flouting international law, and start treating Khadr — and all persons in Canada — according to Canadian and international law.
Catherine Morris teaches international human rights at the University of Victoria. She teaches on peace and conflict at universities in Europe and Asia. She monitors human rights in several countries for Lawyers’ Rights Watch Canada.

Wednesday, October 10, 2012

This week at the SCC 10/10/2012.

This week at the SCC




The Supreme Court of Canada starts its fall session today. Here are the scheduled appeals for this week:



 
Oct. 10
— Ontario — Ivana Levkovic v. R.

Charter of Rights and Freedoms: Ivana Levkovic was charged under s. 243 of the Criminal Code with concealing the dead body of a child after she gave birth in her apartment, putting the baby in a garbage bag, and leaving the bag on the balcony. A pathologist wasn’t able to determine the cause of death or if the baby died before, during, or after birth. The court is being asked to clarify whether the words “child died before . . . birth” are vague and therefore violate s. 7 of the Charter.

Oct. 11 — Saskatchewan — R. v. A.D.H.

Criminal law: A.D.H. was charged with unlawfully abandoning a child so that the child’s life was likely to be endangered contrary to s. 218 of the Criminal Code after she gave birth in a washroom at a Wal-Mart store. She didn’t know she was pregnant and didn’t think the baby was alive when she left it in the toilet. Store management called 911 and the baby was resuscitated. The trial judge found it was a precipitous birth, that A.D.H. didn’t know she was pregnant, and the baby was born at least a month premature. She was acquitted and the appeal was dismissed. At issue is whether the mens rea for an offence under s. 218 is subjective or if it should be assessed by applying the modified objective standard. There are publication bans in the case.

Oct. 12 — Ontario — J.F. v. R.

Criminal law: J.F.’s girlfriend, identified as T, along with her sister, were convicted of the first-degree murder of their mother. MSN chats between J.F. and T before the murder revealed they discussed the method of killing. The trial judge told the jury J.F. could be liable for conspiracy either as a “full partner” or if he was a party to the conspiracy by aiding or abetting one or both sisters in their plan to murder. J.F. was convicted of conspiracy to commit murder. The Court of Appeal upheld his conviction. The central issue in this case is party liability. There are publication bans in the case.

At 9:45 a.m. on Oct. 12, the SCC will also release its ruling in Ewaryst Prokofiew v. R. (Ont.), which looks at the issue of a judge’s address to the jury regarding an accused’s decision not to testify during his trial.

Monday, October 8, 2012

Election challenge clears another hurdle in Federal Court : Council of Canadians wants election wins of 7 Conservative MPs overturned

A group of Canadians challenging the election wins of seven Conservative MPs has scored a victory along the road to getting the main case heard in Federal Court.
The court has ruled in favour of the challengers denying a motion by the Conservative Party to force them to put down hundreds of thousands of dollars as a security deposit.
Nine people, backed by the Council of Canadians, are challenging the election wins of seven Conservative MPs. They argue fraudulent or abusive phone calls targeted those seven ridings in an attempt to discourage voters from casting ballots on May 2, 2011, and that the election results should be nullified.
The Conservative MPs argued last month in Federal Court that the applicants should put down a combined $260,409 as a security deposit in case the applicants lose the case.
The applicants have each posted $1,000 as security for costs.
The Conservatives argued the applicants wanted the most extreme remedy, a nullification of the election results, and that the MPs were forced to defend themselves at great expense.
But Prothonotary Roza Aronovitch denied the Conservatives' motion because extra security is granted only when applicants don't have enough assets to cover an order for costs, or when recovery of costs is expected to be unlikely.
A prothonotary is a full judicial officer with many of the powers and functions of Federal Court judges, including authority to handle mediation and case management.

MPs ordered to pay costs

"The court has no basis to conclude that any increase in security for costs is warranted, or just, in the circumstances," Aronovitch wrote in a decision Friday.
"None of these factors are present in this case. Indeed the respondent MPs' own evidence is to the contrary."
Aronovitch also says the MPs have to pay costs of the motion because it unnecessarily delayed proceedings.
"Having heard the submissions of the parties on costs, and finding that these motions have unnecessarily delayed and encumbered these proceedings, it is further ordered that the costs of these motions shall be paid by the respondent MPs to the applicants, in any event of the cause," she wrote.
The seven ridings where election results are being contested are:
  • Don Valley East and Nipissing-Timiskaming in Ontario.
  • Elmwood-Transcona and Winnipeg South Centre in Manitoba.
  • Saskatoon-Rosetown-Biggar in Saskatchewan.
  • Vancouver Island North in B.C.
  • Yukon.
The Conservatives have already been in court arguing the lawsuit is vexatious. A prothonotary decided in favour of the applicants, ruling the case should be argued in full before determining whether it had merit.

Saturday, October 6, 2012

XL Foods - List of Recalled Products 06/10/2012

XL Foods - List of Recalled Products


CFIA investigation into XL Foods (E. coli O157:H7)
Main page | Related Alerts | List of Recalled Products | Questions and Answers
The following is a list sorted by store name. Products sold by more than one retailer are listed under each affected store or brand. Where no specific store is identified, the products are listed by brand.
This recall also includes unlabelled and/or unbranded beef products sold at retail stores not identified in the CFIA's product list below, which may include small retailers, local meat markets and butcher shops, etc. Therefore, the CFIA is advising consumers who are unsure if they have the affected beef products in their homes to check with the store(s) where the products were purchased or throw them out.

Sold at Retail

Monday, October 1, 2012

September 21, the Supreme Court of Canada gave Sheryl Kiselbach, a former sex-trade worker, and a group representing such workers the right to challenge Canadian prostitution laws.

September 21, the Supreme Court of Canada gave Sheryl Kiselbach, a former sex-trade worker, and a group representing such workers the right to challenge Canadian prostitution laws.
The case – the Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society & Kiselbach – dates back to 2007, when Ms. Kiselbach and SWUAV filed a constitutional challenge to prostitution laws on the basis that the regulations made sex work dangerous.
The federal government argued they didn’t have the right to pursue the case, as neither Ms. Kiselbach nor the group were at risk of being charged under the laws in question. The case made its way to the Supreme Court of Canada, which in September ruled that Ms. Kiselbach – who now works with a violence prevention group – and SWUAV had public interest standing.
As the B.C. case made its way through the courts, Canadian prostitution laws were also being challenged in Ontario, through a case brought by Terri-Jean Bedford. In that case, Ontario courts have found some, but not all, prostitution laws unconstitutional.
Katrina Pacey is a lawyer with Vancouver-based Pivot Legal, counsel for Ms. Kiselbach and SWUAV.
What happens now?
The next step is that we go to trial in B.C. Supreme Court. The question is, what’s the timing going to be for that? The reason we don’t know the timing is the Bedford litigation, which is ongoing in Ontario.
[The cases] are not formally tied together, but there are overlapping legal issues. And the Bedford case, because it’s likely headed to the Supreme Court of Canada next year – the outcome of that will be binding on our case.
So the minute [the Supreme Court of Canada] has that decision, some of the issues in the SWUAV and Kiselbach case will be moot or resolved, because there will be a Supreme Court of Canada judgment on those exact questions.
We have to figure out whether it is prudent to go to trial anyway and get going on everything that is in our claim, or to wait until the Bedford decision to be concluded and to carry on with what is remaining.
Our legal team is working on that now.
What is the biggest difference between the B.C. case and the Bedford case?
[The Kiselbach and SWUAV] claim is a broader claim – because it challenges most of Section 212, the procuring provision [under the Criminal Code]. Whereas the Ontario case only deals with living on the avails of prostitution, which is one portion of that.
What is the goal of this case?
It is to decriminalize adult sex work, thereby giving sex workers greater control and the ability to take steps and measures to work safely and in conditions that are good for them.
Some critics say decriminalization would amount to saying that it’s okay for women to be exploited and abused – what would you say to that?
I would say sex workers are a diverse community. They have varying perspectives and reasons for why they are involved in sex work and what circumstances led them there. The criminal laws have failed. No matter what sex workers’ goals may be, or society’s goals may be – because all we have seen is increased violence, increased harm and perpetual stigmatization of this group.

Friday, September 28, 2012

Lawsuit seeks needle exchange programs for prisons : Prisoner, public health at risk without syringe exchanges, AIDS groups allege

A former federal inmate and four AIDS prevention organizations are suing the federal government for failing to provide needle and syringe exchange programs inside Canadian prisons.
The lawsuit, which is being filed today in Ontario’s Superior Court of Justice, claims the government is violating the rights of inmates under the Canadian Charter of Rights and Freedoms by failing to provide such programs inside prisons.
But instead of seeking a monetary settlement, the plaintiffs are asking for what’s called a supervisory or structural injunction, according to lawyer Douglas Elliott. He called it a rare ruling in which a judge could order the government to set up needle exchange programs in prisons across Canada.

“The most important thing is to get a good program in place that would protect people in the future,” Elliott told CBC News.
The suit is being served today against Minister of Public Safety Vic Toews, Attorney General Rob Nicholson and Don Head, the commissioner of the Correctional Service of Canada (CSC). The application claims the government is failing to protect the health of prisoners and the public health of Canadians by not providing access to the same kind of needle and syringe exchange programs that have been offered to drug users in communities across Canada for more than 20 years.
The lawsuit is being filed jointly by the Canadian HIV-AIDS Legal Network, Prisoners with HIV/AIDS Support Action Network (PASAN), an AIDS information group endorsed by Canada's Public Health Agency (CATIE) and the Canadian Aboriginal AIDS Network (CAAN) a coalition that provides support and advocacy for aboriginal people living with AIDS.
In the past decade, studies by the government and other groups have shown HIV and hepatitis C rates are 10 to 30 times higher in Canadian prisons than elsewhere in the country. The rates are even higher among women and aboriginal inmates.
Several groups, including the government’s own officials, have recommended setting up needle exchanges in prisons, but the government has refused.
Similar programs are already operating in parts of Britain, Europe and Iran.

'Clear case of discrimination'

"Prison health is public health," said Sandra Ka Hon Chu, a lawyer and senior policy analyst for the Canadian HIV-AIDS Legal Network, one of the groups launching the lawsuit.
"Over 90 per cent of people in prison are going to be back in the community and these people have family and friends who are going to be affected or infected with HIV and hepatitis C as a result of CSC’s non-provision of needle exchange and syringe programs," he said.
Chu called this "a clear case of discrimination" because drug users outside prison have access to needle exchange while inmates don’t.
The federal government maintains a "zero tolerance" policy for drugs in prison and in recent years has spent millions of dollars to interdict drugs going into institutions with the use of tough electronic surveillance equipment and dogs that can detect drugs.
At the same time, the prison system does provide inmates access to condoms and bleach kits to clean their needles in an effort to prevent disease. But the government has consistently rejected any plan to provide clean needles to prisoners.
Steven Simmons is a former inmate who contracted hepatitis C while incarcerated at Warkworth Institution in eastern Ontario between 1998 and 2010. He’s one of the plaintiffs in the lawsuit.
“When I was in prison, I would see people passing one homemade needle around and sharpening it with matchbooks. The needle would be dirty and held together with hot glue,” Simons said. “I watched people shove a dull needle to try to penetrate their skin, creating craters, abscesses and disfigurements,” he said.
The federal government has yet to respond to the suit. Elliott says given the complexity of the issue, he doesn’t expect the case will go before a judge until sometime next year.