The B.C. Civil Liberties Association has stepped up to the national stage in two recent cases, taking stands -- and risks -- for human rights

Doug Ward, Vancouver Sun
Published: Saturday, March 22, 2008

The dark and murky jails of Afghanistan where detainees handed over by Canadian troops are tortured and the Victoria prison cell where Robert Latimer spent over six years are worlds apart.

But each case is about the rights of individuals versus the power of the state -- and both were thrust into the national spotlight by the tenacious efforts of the B.C. Civil Liberties Association.

Over the past few years the BCCLA, operating on small budget and out of a modest downtown Vancouver office, has arguably become the most influential civil liberties group in Canada.

"We do harbour the conceit of being the most active civil liberties group in Canada," said BCCLA president Jason Gratl, a 33-year-old Vancouver lawyer, who represented Latimer in his successful day parole appeal.

"What we lack in size we make up in courage and energy."

Gratl said the group's mandate has been to protect and enhance civil liberties in B.C.

But the lower profile taken by the Canadian Civil Liberties Association, led by its legendary but aging general counsel Alan Borovoy, has "left us with a larger case load in the east," he added.

University of B.C. political science professor Michael Byers said the BCCLA "is filling a vacuum."

"It's a Canadian NGO that is not only willing to advocate -- but also to litigate."

University of Ottawa law Prof. Amir Attaran said the BCCLA stands out in a country "where it is rare for an NGO to stick its head above the parapet."

One of the reasons for the BCCLA's fearlessness, said Attaran, is that it receives no government money. "The BCCLA doesn't have this caution that comes from not wanting to bite the hand that feeds you."

Attaran, who is originally from the U.S., said too many NGOs in Canada depend on government funding, which makes them afraid to launch legal action against the state. Attaran said American human rights groups are far more active because it is rare for them to depend on government funding.

The BCCLA's key role in bringing national attention to the issue of Afghan detainees illustrates the Vancouver group's ability to challenge decision-makers.

In the spring of 2006, a small group of human rights activists gathered in Ottawa to discuss how to prevent Canadian-transferred detainees in Afghanistan from being tortured.

It was agreed that the Conservative government needed to be confronted in court over the issue of Canadian complicity in torture.

The discussion turned to which group would be willing to be the plaintiff. It was felt that the group would have to have enough credibility and profile to force a court to take any legal action seriously.

One of the participants, UBC's Byers, offered to contact the BCCLA, which quickly agreed to become a litigant and was then joined by Amnesty Canada.

The two groups filed a Federal Court action, arguing that international law and Canada's own Charter of Rights barred the Canadian government from transferring prisoners to jails where they were likely to be abused or tortured.

The Federal Court ruled against the BCCLA in a decision earlier this month, saying the detainees have rights under the Afghan constitution and international law -- but not Canadian law.

The Federal Court decision will be appealed and was a loss "only in a very narrow sense," Gratl said.

"The court case had the effect of uncovering specific incidents of torture and bringing the Canadian public and Parliament to an awareness of the conditions in Afghanistan for prisoners."

The BCCLA's suit forced the Canadian government to agree to monitor the fate of detainees who are sent to Afghan jails, he added.

Gratl said the court case also prompted Stephen Harper's Conservative government to acknowledge that Canada had stopped transferring prisoners into Afghan custody in late 2007 after discovering clear evidence of torture.

The BCCLA and Amnesty have also succeeded in prompting the Military Police Complaints Commission to announce recently that it would hold a "public interest" investigation in the transfer of Afghan detainees.

Byers said "everything that we have seen in the last year concerning the scandal about Afghan detainees comes back to the willingness of the BCCL to take the risk and put its name on the line in defence of human rights."

Attaran said it isn't the most popular thing to call for safeguards that would protect members of the extremist and violent Taliban movement, "who are pretty hideous and I wouldn't want them running that part of the world."

"But we talk about human rights and the last time I checked, the Taliban members were humans."

The case of Saskatchewan farmer Latimer, who was jailed for the 1993 killing of his disabled daughter Tracy, is another example of the BCCLA's willingness to seize the initiative.

About a month ago, the appeal division of the National Parole Board freed Latimer on day parole -- a move prompted by legal action initiated by the BCCLA.

The group became involved after a member of the B.C. Humanist Society approached long-time BCCLA activist John Dixon, a philosophy professor at Capilano College, to help Latimer after he was initially denied day parole.

Latimer was eligible for day parole last year but the regional parole board denied his request.

The three-member parole board told Latimer they were "struck" that he had failed to develop any insight into his crime during his seven years in prison.

"Folks were left the feeling you have not developed the kind of sufficient understanding of your actions," said Kelly-Ann Speck, one of the three members of the National Parole Board panel.

Dixon thought it was worth pursuing and convinced the BCCLA to tackle Latimer's case. The group's in-house lawyer was busy with the Frank Paul inquiry, so BCCLA president Gratl took on Latimer's case pro bono.

Gratl helped Latimer shape his appeal, which argued that denying him parole was unreasonable because there was almost no risk of his reoffending and the initial parole board panel had strayed from its statutory mandate and applied its own moral views on mercy killing.

The appeal division agreed, saying to "delay in releasing you from imprisonment would be unfair."

BCCL board member Dixon said at the time that his group's advocacy of Latimer's parole bid was not an endorsement of "extra-judicial mercy killing."

"We weren't interested in appealing the conviction or the sentence," Dixon said. "We were interested in bringing a measure of fairness and mercy to this family at this point."

The BCCLA, the oldest active civil liberties group in Canada, was formed in the '60s when a group of concerned citizens formed a committee to help 72 members of the Sons of Freedom Doukhobor sect. The Doukhobors were arrested and charged with conspiracy to intimidate the provincial legislature.

The people in the committee remained active and formed the BCCLA the next year. Initially, the BCCLA operated out of people's homes and depended on donations from members to keep operating.

These days, the group has a downtown Vancouver office and eight staff members, including three full-time lawyers.

Gratl said funding from individuals has risen in recent years to about $200,000, allowing the group to take on more high-profile cases.

It also is able to call up other lawyers who will do many hours of work pro bono, including Ottawa lawyer Paul Champ, who led the Federal Court challenge on Afghan detainees, and Gratl himself, who represented Latimer for free.

About half of the BCCLA's annual $500,000 budget comes from the The Law Foundation of British Columbia, which receives and distributes interest on clients' funds held in lawyers' pooled trust accounts. Another $40,000 comes from the B.C. Gaming Commission and the remainder from individual supporters.

Why has such an energetic group of civil liberty advocates emerged in Vancouver?

"Vancouver still represents the final frontier," Gratl said. "Vancouver has the virtue of attracting young minds from across the continent who feel constrained by the cultures of other places, including lawyers like myself who had difficulty swallowing the prospect of a lifetime of working on Bay Street in Toronto."

UBC's Byers said the BCCLA's emerging prominence is "just a reflection of the energy and commitment that exists in Vancouver translated on to the national stage at a time when this kind of voice is desperately needed."

Gratl said the BCCLA "tries to articulate what the appropriate limits are on our freedom."

While he's a civil liberty advocate, Gratl is no political libertarian. He believes strongly in the need for a collective that puts legitimate limits on individual freedom.

The former philosophy graduate student added that the "best democracy is where individuals are free to engage in their own pursuits to the extent that they don't infringe on their neighbour's freedom."

While the BCCLA is about action and not pointy-headed debates over abstract principles, the group does attract individuals with an intellectual interest in the relationship between the individual and the state.

"The BCCLA is made up of a healthy proportion of professors of philosophy and lawyers," said Gratl. "Law-oriented philosophers and philosophy-oriented lawyers."

dward@png.canwest.com