Amnesty International Canada's Legal Work Database

In June 2014, an action was filed by seven Guatemalan men in British Columbia against Canadian company Tahoe Resources for injuries suffered when Tahoe’s security personnel allegedly opened fire on them at close range during a peaceful protest against the company’s mining activities. They accused Tahoe Resources of having expressly or implicitly authorized the use of excessive force against the injured, or of otherwise being negligent in failing to prevent the excessive use of force. The British Columbia Supreme Court dismissed the action on the basis of the forum non conveniens doctrine, finding that the case would more appropriately be heard by a Guatemalan court. The plaintiffs appealed the judgment to the British Columbia Court of Appeal. Amnesty International intervened before the British Columbia Court of Appeal, arguing that in applying the doctrine of forum non conveniens, Canadian courts can and must consider as a contextual factor international law and norms that emphasize the importance of access to an effective remedy for transnational tort and human rights claims.

This case is brought against Canadian mining company HudBay Minerals and its subsidiaries by Maya-Q’eqchi’ villagers from eastern Guatemala alleging gross human rights abuses by the company in Guatemala in 2007 and 2009. The Maya-Q’eqchi’ opposed the mining project, and claimed they were not consulted by the Guatemalan government in the transfer of land to private interests. The plaintiffs claim that security personnel employed by HudBay’s local subsidiary shot and killed school teacher and anti-mining activist Adolfo Ich Chamán, shot and paralyzed youth Gernam Chub Choc, and gang-raped 11 Maya-Q’eqchi’ women. Because HudBay is a Canadian company, the plaintiffs seek a remedy for the human rights violations in Canadian courts. Amnesty International intervened in this case before the Ontario Superior Court of Justice to argue that international law supports the view that a duty of care may exist in circumstances where a parent company’s subsidiary is alleged to be involved in gross human rights abuses.

Mr. Khadr was transferred to Canada on 29 September 2012 under the International Transfer of Offenders Act (ITOA). Upon repatriation to Canada, Correctional Services of Canada (CSC) deemed Mr. Khadr to be serving an adult sentence rather than a youth sentence despite the fact he was only 15 years old when the offences he was alleged to have committed occurred. Mr. Khadr was as a result placed in a maximum security federal penitentiary. Mr. Khadr challenged CSC’s policy and demanded that he be transferred out of the federal penitentiary and into a provincial institution. When CSC denied Mr. Khadr’s request, he brought an application for habeas corpus. In our intervention before the Supreme Court of Canada, Amnesty International argued that the ITOA should be interpreted consistently with principles of international law on the transfer of offenders and the treatment of young offenders and former child solders.

Bill C-389, An Act to Amend the Canadian Human Rights Act and the Criminal Code (Gender Identity and Gender Expression) was a private member’s bill introduced in May 2009. The bill would play an important role in protecting transgender persons from discrimination and gate crimes. The purpose of the bill was to include protections for gender identity and gender expression as prohibited grounds of discrimination under the Canadian Human Rights Act and as distinguishing characteristics protected under section 318 as well as aggravating factors listed under section 718.2 of the Criminal Code. Amnesty International wrote a brief urging the Prime Minister and Members of Parliament from all parties to support the passage of Bill C-389.

Bill C-43, the Faster Removal of Foreign Criminals Act, was tabled in the House of Commons in June 2012. The Bill follows Canada’s practice of preferring exclusion or deportation over extradition or prosecution. It proposes amendments to the Immigration and Refugee Protection Act allowing the Minister, on his or her own initiative, to declare that any foreign national may not enter Canada for a period of three years if – in the Minister’s opinion – it is justified on the basis of public policy considerations. Bill C-43 eliminates humanitarian relief and appeal procedures for certain kinds of criminals and suspected criminals, which facilitates their removal but also hinders efforts to hold them accountable for their conduct.

Bill C-51, the Anti-Terrorism Act, 2015, was tabled at the House of Commons in January 2015. The Bill contains the most comprehensive reforms to Canada’s national security laws since 2001. In our detailed legal brief to the House of Commons Standing Committee on Public Safety and National Security, Amnesty International highlighted a number of troubling changes introduced by Bill C-51, including: unprecedented new powers granted to Canadian Security Intelligence Service officers to act to reduce security threats; a new criminal offence of advocating or promoting the commission of terrorism offences "in general"; expanded powers to detain a person on the basis of a recognizance with conditions; expansive information-sharing across government departments and agencies in the Security of Canada Information Sharing Act; new procedures in the Secure Air Travel Act for individuals placed on "no fly" lists; and lack of review or oversight.

This case arises from changes made by the federal government to Canada’s Interim Federal Health Program (IFHP) in 2012. The changes resulted in a new, tiered system of health benefits which denied many asylum seekers and other persons in need of protection losing access to necessary health care such as insulin for juvenile diabetes, chemotherapy and anti-nausea drugs, allergy and asthma medication, urgent eye surgery, antiretroviral medication, and care during child birth. A number of individual claimants as well as three organizations granted public interest standing – Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, and Justice for Children and Youth – brought a challenge to the constitutionality of the funding cuts to the IFHP. They argued that the changes to the program violated the right to life and security of the person, the right to be free from discrimination, and that they constituted cruel and unusual treatment. In our joint intervention with ESCR-Net, Amnesty International argued that international law binding on Canada requires the government to guarantee the right to life by ensuring that all persons have access to the basic necessities of life, including health care.

In 2002, a security certificate was issued against Mr. Harkat, declaring him inadmissible to Canada on national security grounds, and Mr. Harkat was detained. Mr. Harkat challenged the constitutionality of the security certificate regime at the Supreme Court of Canada, arguing that it continued to undermine the right to a fair hearing and for the accused to know and be able to respond to the case against him/her. In our submissions to the Supreme Court of Canada, Amnesty International argued that the new security certificate scheme fails to respect named persons’ due process rights, as required under binding international human rights law.

The Safe Third Country Agreement (STCA), which came into effect on 29 December 2004, prevents refugees from seeking safe haven in Canada if they are seeking to enter from the United States at a land border, and vice versa. Amnesty International and the other applicants brought an application for judicial review of the STCA before the Federal Court of Canada. We argued that by denying access to Canada as a safe haven for genuine refugees, the application of the STCA can result in their refoulement to persecution and torture by the United States. Further, the agreement adversely impacts on particular groups of refugees in a manner that effectively discriminates on the basis of gender, race, religion, nationality and/or sexual orientation.