OTTAWA — Canada’s chief justice says the legal system must continue to modernize and innovate, warning it cannot return to pre-pandemic ways of doing business.
The Supreme Court of Canada’s Richard Wagner told a news conference Thursday that all players in the justice system are reassessing what they do, how they do it, and how effectively they meet the needs of the people they serve.
Wagner insists access to justice is not just a fundamental right or a service, but above all a basic human need and an essential ingredient of democracy.
He acknowledges meeting the expectation of timely justice is a big task, especially with so many courts facing backlogs and delays.
Wagner says this is why a committee on court operations in response to COVID-19 continues to meet even as the pandemic eases.
The committee recently drafted a document for judges and court administrators with practical suggestions to deal with matters faster and more effectively.
The Supreme Court began holding hearings via video conference, as well as hybrid sessions, in 2020 to help prevent the spread of COVID-19.
Other courts across the country also moved to quickly adapt, allowing use of audio and video technology for hearings as well as more digital documents.
Wagner said last year the Supreme Court would continue to hold virtual hearings beyond the COVID-19 pandemic if participants agree to them.
“Now, we actively encourage remote hearings.”
The technology levels the playing field for all, giving parties the option to make their case from wherever they choose and offering substantial savings — especially to those farthest from Ottawa, he said.
This improves access to justice, especially for interveners such as public interest groups that present the court with additional context and perspectives on challenging legal issues, Wagner added.
“Truly, it does not matter if counsel is standing before them or appearing on screen. Strong, well-reasoned and persuasive arguments can be made from anywhere.”
The courts have a primary role to play in implementing the values of the rule of law and democratic institutions, Wagner said.
“However, even in Canada, nothing is certain. I strive to remind you that we must constantly remain vigilant, knowing that attacks and violations in this regard are sometimes insidious and reactions too late, if there is a reaction.”
This report by The Canadian Press was first published June 16, 2022.
Amanda Jetté Knox doesn’t know who tried to throw a bottle at them from a vehicle while walking home in Ottawa last month, but remembers the feeling of it barely missing their head.
“[It] hit my bangs as it went by,” said Jetté Knox, who identifies as non-binary and uses she/they pronouns. “[They] called me a f–king freak and drove off.”
It was the first time Jetté Knox experienced anything so violent but the proud activist and author has endured plenty of hateful comments since publicly sharing their family’s story several years ago. One of Jetté Knox’s four children is non-binary and came out in 2014; the next year, Jetté Knox’s spouse came out as transgender woman.
Now, they are closely watching the anti-LGBTQ hate billowing in the United States, where gender diversity and gender expression have become popular targets for Republican politicians, far-right groups and online trolls.
Jetté Knox, and other advocates and experts, see it spreading in Canada as well.
“It feels like it’s just a matter of time before we start seeing more of this in our own backyard,” Jetté Knox told CBC News.
“I’m a pretty positive person, but I’m worried right now.”
Hate ‘spilling over the border,’ says prof
Anti-trans and anti-LGBTQ hatred is something that is always “simmering,” including in Canada, said Prof. Barbara Perry, director of the Centre on Hate, Bias and Extremism based at Ontario Tech University in Oshawa.
A survey released by Statistics Canada in 2020 found transgender people had a greater likelihood of experiencing physical or sexual violence than non-transgender people in Canada. They were also more likely to experience “inappropriate behaviours” in public, at work, and online, which Statistics Canada defined as acts that “make people feel unsafe or uncomfortable” and have a lasting impact on mental and physical health.
But it appears far-right groups here have become more emboldened by what Perry describes as the “horrific narratives and policy shifts” seen in the U.S.
Since the start of this year, the U.S.-based Human Rights Campaign has documented more than 300 proposed bills, introduced in 36 states, that directly target transgender rights, gender diversity and expression. These include attempts to investigate families helping affirm their child’s gender identity to outright limiting education and conversation about LGBTQ people, restricting trangender children from participation in sports, and even going so far as to attempt to bar children from attending drag performances.
“That’s spilling over the border, obviously, into the Canadian narrative as well, and informing the far-right here,” Perry told CBC News.
WATCH | All-ages drag performances subjected to online hate:
Alex Saunders, a drag performer who volunteers and hosts a drag storytime with the Saint John Free Public Library, says they have been the target of hateful messages from right-wing groups.
Advocates accused of ‘grooming’ children
Harmful language aimed at smearing transgender people, and those who support them, as preying upon or indoctrinating children is routinely used online and in right-wing media — in particular, “grooming” or “groomer.”
It’s a trope long been used to disparage LGBTQ people that’s seeing a steep rise in usage online.
Jetté Knox said they get called a groomer online “almost every day” because of their gender identity, because they’re raising non-binary child, or because of their activism for transgender rights.
It’s also happened in person. They were travelling in the United States recently and attended a Virginia school board meeting, with friends and their children, to recognize Pride Month. Protesters hurled insults at them.
“Some pretty awful things were said,” Jetté Knox recalled. “We were told we were indoctrinating children.”
It’s actually far-right groups who are “grooming” people, said Perry, slowly luring new followers to their ideologies by latching onto their concerns and uncertainties.
Some far-right, religious and other groups have portrayed gender-affirming care for transgender youth as “child abuse” and push to restrict access to health care such as hormones to delay puberty and promote development consistent with a child’s gender identity.
Various medical groups, including the American Medical Association, say such policies are “dangerous” and “foregoing gender-affirming care can have tragic health consequences.”
It’s a means of “lending credibility and legitimacy” to extreme views, Perry explained, because they’re presented as “protecting the vulnerable.”
Transphobia a ‘gateway’ to far-right ideology
Focusing on transgender and gender-diverse youth is one way of gaining public approval for broader acceptance of anti-transgender policies and attitudes, said Florence Ashley, a doctoral candidate at the University of Toronto Faculty of Law and Joint Centre for Bioethics whose work revolves around trans rights.
“Transphobia tends to oftentimes be the sort of like gateway into the far-right,” said Ashley, who uses they/them pronouns.
They noted how social media algorithms also play a role in this. The U.S. non-profit Media Matters For America, for example, examined how anti-trans content on TikTok served as a gateway to far-right and white supremacist content, conspiracy theories and even calls to violence.
Ashley also highlighted similarities the current climate of transphobia has with what’s known as the “great replacement” conspiracy theory disseminated by far-right and white nationalist movements, and in some conservative media outlets. It’s a racist claim that white people are being systematically replaced by immigrants.
The feeling of “losing power in society,” they explained, makes it easier to blame the people you perceive as “trying to replace you.”
It’s something that happens “in times of crisis and high anxiety as we’ve seen over the last couple of years,” said Perry. “We’re always looking for scapegoats, looking for somewhere to direct our anger or fears or anxieties.”
They worry voters may not be keeping as close an eye on the comments and promises such candidates make about gender diversity issues because it doesn’t an affect their lives the way it impacts Jetté Knox’s LGBTQ family.
Ashley warned it only takes a “shift in political power for groups to really start asserting their will on a population” and that’s why people in Canada should be closely watching what’s happening in the U.S.
They noted how the recent U.S. Supreme Court, stacked with conservative justices during Donald Trump’s single term in office, overturned Roe v. Wade, the nearly 50-year-old decision that enshrined the right to access abortion. That ruling could set a precedent to reverse decisions on same-sex marriage and same-sex intimacy for consenting adults, something Justice Clarence Thomas alluded to in his concurring opinion on the Roe v. Wade ruling.
Jetté Knox urged those who care about the rights and freedoms of gender-diverse people to vote.
“Watching those rights being attacked elsewhere puts a lot of fear in me because it means that they can be attacked in Canada too,” they said. “I think that those things will be challenged and I think that we have to get ready for it.”
Creating a positive online space for trans people
Despite the apparent rise of online slurs and hate against LGBTQ people, young transgender people like Vancouver’s Noah Yang are helping maintain positivity in online spaces and inform others about transgender experiences.
Yang, who uses the pronouns he and him, shares his gender-affirmation journey on Instagram. He said he’s fortunate to have only experienced negativity “a handful of times” and has largely received encouragement.
“It was unexpected that showing the physical scars and the physical changes would inspire people and, you know, open people’s eyes up to … what can really happen throughout someone’s transition.”
He acknowledges not everyone has the ability to drown out the negativity being directed at gender-diverse people. But, for Yang, the importance visibility outweighs any hate.
“I do think it is beneficial because I feel that, you know, it’s not just trans folks who see the page,” he said.
The basement condo in central Edmonton, where Luis Ubando Nolasco and his family carefully rebuilt a home and a life, is being emptied out.
The father, his wife Cinthya Carrasco Campos and their two young daughters are set to be deported to Mexico Monday. The family, who fled to Canada in 2018 in the wake of a family member’s homicide and ongoing threats, have been denied refugee status by the federal government.
In preparation for deportation, the family has sold off much of their furniture. In the living room, the TV is on the floor and the family has cushions to sit on. The wall above where there used to be a couch is still crowded with children’s artwork and drawings.
The two girls are finishing up the year at their elementary school. As they enjoy end-of-year parties and field trips, their parents are desperately trying to delay or stop the return to Mexico.
Ubando Nolasco has even tried to convince authorities to send him back first, alone.
“If they can just stay, I’ll go back. I can go,” he told CBC News last week. “Make an example of myself. If they want to see somebody’s been murdered, I can go back and get murdered.”
Speaking through tears, the father shared his fears about what will happen to his children if they return to Mexico and are discovered by the people who, he says, have already killed his brother and are still actively looking for him.
“They will take my daughters, they will dismember them, and they will show me how they did that to my daughters,” Ubando Nolasco said. “That’s something that I don’t want to happen.”
On June 5, 2018, Ubando Nolasco’s brother, José Ubando Alvarez, told him someone was calling him and demanding money, according to federal court documents filed as part of the family’s case. Ubando Nolasco thought perhaps his brother was being targeted because of social media pictures he’d posted that gave the impression he was wealthy.
Ubando Nolasco said his brother laughed the threats off and sent mocking replies to their unknown source.
Two days later, on June 7, 2018, Ubando Alvarez was killed. He was shot multiple times, and police opened a homicide investigation that remains unsolved.
According to the documents, Ubando Nolasco provided evidence that, at his brother’s funeral, someone came up behind him, pressed something into his back and told him he would die unless he gave them money. He couldn’t see who it was, but soon began receiving threatening texts and calls demanding money.
Whoever was sending the threats to Ubando Nolasco started including details about Carrasco Campos and his two daughters as well. They knew where the girls were going to school.
The family went into hiding in Mexico before fleeing to Canada on a direct flight on July 11, 2018. Upon arrival in Vancouver, they obtained refugee protection.
There have been no arrests in connection to the brother’s death. Relatives and friends who have contacted the police to try to get more information have received pushback from police.
One relative even started receiving threatening messages, demanding to know the whereabouts of Ubando Nolasco. CBC News has viewed translated versions of those text messages, provided as part of the family’s refugee claim.
Arriving in Edmonton, the family settled into life as best they could under the circumstances.
The girls enrolled in school and, after a six month waiting period, the two parents were granted temporary work permits and got jobs. They’ve had to renew the permits annually but are still working — even with their deportation date just days away.
Denied refugee status
On Sept. 15, 2019, a three-member panel of the federal Refugee Protection Division heard the family’s claim for protection as refugees. According to written reasons for decision, the panel found that, while the threats the family faces are credible, they could take refuge in another part of Mexico.
Referred to as an “internal flight alternative (IFA)”, the panel suggested a region in a safer part of the country where it would be possible for the parents to find work.
The family argued that, in Mexico, student lists for schools are publicly available so it would be possible for a criminal group to track them down regardless of where they are.
The panel, however, found the family’s belief that whoever is making the threats would be able to find them is “speculative,” because the criminals’ identities are unknown, the amount of money they are seeking is unknown and the only motivation seems to be the alleged debt the brother owed the criminals.
The family appealed the decision. But in a February 2020 decision, the Refugee Appeal Division member upheld the panel’s decision.
“The existence of an IFA is fatal to any refugee claim. If a claimant can find safety from persecution by fleeing within their country, then they are not entitled to Canada’s surrogate protection,” wrote the member who rejected their appeal.
During their appeal, the family argued that it was “objectively impossible” for them to know the capacity or motivation of the people making the threats without knowing their identity.
In the written decision, the member who heard the appeal agreed, but found that, under Canadian law, the burden is on the appellants to show why the IFA isn’t a viable refuge for them, and that test hadn’t been met in this case.
The family sought a judicial review of the appeal decision, but that request was denied last September. Their counsel says they were notified in February.
As a last ditch effort, the family filed for humanitarian and compassionate leave to stay in Canada in April, but must return to Mexico in the meantime. The currently listed processing times are upward of a year.
The family has exhausted nearly all of their options.
With the help of a neighbour, who learned what was happening and stepped in, they’ve sought support from refugee support groups and met with staff from Edmonton Centre MP and federal Minister of Tourism Randy Boissaunault.
“We are actively looking into their cases and are in contact with colleagues at IRCC,” Boissonnault said in a statement via email.
Migrante Canada and its Alberta chapter have gotten involved in advocacy for the family.
“A public campaign is the only thing that we know of that can turn this around. Letting people know the stories out there, public pressure onto our political leaders — that is what we’re hoping would turn this around,” said Clarizze Truscott, vice-chairperson of Migrante Canada, who also sits on the Migrante Alberta executive.
Migrante Alberta is also in the midst of a campaign to stop another family from being forced to leave Canada: an undocumented single mother, who has a six-year-old Canadian daughter with health issues, is being deported to the Philippines.
They don’t have hard numbers, but Truscott said the organization is hearing from an increasing number of people who have suddenly been given deportation dates for June and July.
She said it’s baffling that the federal government is removing people while at the same time expanding the temporary foreign worker program.
“We’re removing them while opening the doors for a new set of workers with the same kind of temporary permits, essentially,” she said. “Why not keep the ones that are here? They have proven they belong to Canadian society.”
Immigration, Refugees and Citizenship Canada cannot comment on specific cases without written consent due to privacy legislation, said department spokesperson Rémi Larivière.
All eligible asylum claims receive an independent and fair assessment of their claim through the Immigration and Refugee Board of Canada, he said. For those not normally eligible to become permanent residents through regular programs, or who have exhausted all other options, an application on humanitarian and compassionate grounds is available.
“Every individual facing removal is entitled to due process, but once all avenues to appeal are exhausted, they are removed from Canada in accordance with Canadian law,” Larivière said.
Minister Sean Fraser has been mandated to build on existing pilot programs to explore ways of regularizing status for undocumented workers and the IRCC looks forward to continuing this work, he said.
If Ubando Nolasco’s family ends up back in Mexico, they will likely have to hide and try to seek refugee status in another country, hoping to get what they thought they’d found in Canada — a normal life where their daughters will be safe.
“We came here to give — to be safe — but we’re not here to take,” he said.
He recognizes there are many people seeking to remain in Canada, and that the government is in a difficult position.
He doesn’t want special treatment, but he wants people to understand the danger his family is facing. That’s why he and his wife decided to share their identities, despite being fearful of what going public — and then returning to Mexico — could mean.
“This is to give my daughters an opportunity to live in peace,” he said. “They are worth every single second of effort that I can make.”
OTTAWA — A law outlawing any dealings with the Taliban, which charities complain is impeding their ability to help needy Afghans, could be adjusted by the federal government to give more flexibility to aid agencies.
International Development Minister Harjit Sajjan said the government is looking at making changes to the law to create “flexibility” to make humanitarian help easier.
But, in an interview with The Canadian Press, he insisted Canada would not lift the Taliban’s designation as a prescribed terrorist organization.
“We are looking at options on what we can do to create that flexibility that other countries have,” he said. “The U.S. currently can do more work than us, at least have the options to do more things there. We are looking at similar exemptions we can create as long as we can keep up the pressure on the Taliban, as it is a terrorist entity.”
A law listing the Taliban as a terrorist organization was passed in 2013, before the allies withdrew and the Taliban seized control of Kabul and formed a de facto government last year.
Under the anti-terrorist leglislation, Canadians could face up to 10 years in prison if they, directly or indirectly, make available property or finances to the Taliban.
Canadian aid agencies working in Afghanistan complain the law is impeding their work because they cannot help anyone who may have official dealings with the Afghan government, including people paying rent or taxes.
They have also criticized Canada for not adjusting its regulations following a December 2021 UN Security Council resolution which said “humanitarian assistance and other activities that support basic human needs in Afghanistan” would not violate the council’s sanctions regime.
Giving evidence to a special parliamentary committee on Afghanistan earlier this year, Michael Messenger, president of World Vision Canada, said Canada was “out of step” with other countries, including the U.S., which have made changes to make humanitarian aid easier following the UN resolution.
Ten humanitarian organizations made a submission to the parliamentary committee calling on ministers to relax its laws so they could work on the ground in Afghanistan without fear of breaching Canada’s anti-terrorism laws.
In its official report last month, the committee recommended that the government “ensure that registered Canadian organizations have the clarity and assurances needed — such as carve-outs or exemptions — to deliver humanitarian assistance and meet basic needs in Afghanistan without fear of prosecution for violating Canada’s anti-terrorism laws.”
Sajjan said, despite the prohibitions on dealing with the Taliban, Canada had continued to give vast sums of aid to Afghanistan through agencies including the UN and Red Cross.
But he acknowledged the law, brought in before the Taliban formed the government, was preventing some aid work, including “development projects where you have to work through the government’s structure.”
He said Canada had pumped around $150 million into Afghanistan, including aid to help people following the recent earthquake that killed more than 1,000 people and left more than 1,500 injured.
The earthquake struck a remote region near the Pakistan border, damaging more than 10,000 homes, most of which are made from clay and mud. Immediately after the earthquake, the Taliban issued a call for help from the international community.
“The law has not prevented us from helping the Afghan people,” the international development minister said. “We can still help the Afghan people but we are still looking at the options of how to get the exemptions.”
Lauryn Oates, executive director of Canadian Women for Women in Afghanistan, said humanitarian groups were getting conflicting legal advice on what the rules say they can and cannot do in Afghanistan.
She said the anti-terrorism law was stopping Canadian aid workers paying local taxes, including on rent or salaries. But aid workers could face imprisonment in Afghanistan if they don’t pay taxes, under local laws.
The law is also making it harder to fund scholarships for Afghan women and girls at private universities and creating huge amounts of paperwork, she said. A scholarship can only now be granted if the university signs undertakings pledging that the money, even small sums, would not be used to pay tax.
Oates said she feared a law change could take years when aid is urgently needed in the impoverished country.
“We need an innovative, interim solution now,” she said. “Other countries have been able to come up with them and Canada is lagging behind.”
This report by The Canadian Press was first published July 2, 2022.
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