B.C. LEADS FIGHT FOR FREEDOMS

The B.C. Civil Liberties Association Is The Oldest Such Organization In Canada

In the final days of the federal election campaign, Abbotsford Conservative
MP Randy White appeared in a taped interview saying "to heck with the
courts" and vowing his party would have no problem using the Constitution's
notwithstanding clause to overturn court judgments it disagreed with.

White's outburst was seen as a gaffe for the new Conservative party, which
had been trying to project a more moderate image of itself.

But that such a sentiment would come from one of the party's B.C. MPs was
perhaps not that surprising.

Because when it comes to Canada's most controversial court judgments of
recent years -- on everything from child porn to marijuana -- B.C. has been
ground zero.

"You can go down the list of really important constitutional litigation ...
They all seem to originate here," said Craig Jones, a Vancouver lawyer.
"It's a strange phenomenon."

Those cases include:

- - John Robin Sharpe's child pornography case.

- - Gay bookstore Little Sisters' successful challenge against Canada
Customs' power to seize material at the border.

- - The successful challenge of the Surrey school board's attempt to ban
books about gay parents from its schools.

- - David Malmo-Levine's failed attempt to have marijuana legalized.

In fact, statistics show that 22 of the 77 cases the Supreme Court of
Canada heard in 2003 originated in B.C. -- making B.C. the second-largest
source of cases after Ontario at 27.

Jones said B.C. regularly produces about a third of the big constitutional
cases heard by the top court, despite having just 14 per cent of the
country's population.

"British Columbia generates more constitutional litigation per capita than
any other region in Canada," he said.

And at the front lines of many of those cases is the B.C. Civil Liberties
Association.

Founded more than 40 years ago out of concern about the province's
treatment of the Doukhobor religious sect, the BCCLA is the oldest civil
liberties group in the country -- beating the Toronto-based Canadian Civil
Liberties Association by two years.

It is also, arguably, the most effective.

"It's now an unusual year where we don't make at least one submission to
the Supreme Court of Canada," said BCCLA president John Russell. "And we're
frequently before the courts in British Columbia on various matters."

But the BCCLA's success is not limited to the courts. It has also been
extremely good at gaining public attention for its positions.

In the past year and a half alone, the BCCLA has been mentioned 51 times in
The Vancouver Sun and 42 times in The Province.

In comparison, during that same period, the Canadian association garnered
just 26 mentions in the Ottawa Citizen and 13 in the National Post.

>From police brutality to safe-injection sites, the media regularly turn
to the BCCLA for comment.

"If you can get to be the first call on somebody's list when a controversy
erupts, that's an asset," said Jones, a BCCLA board member and past
president. "And I think we are the first call on a lot of people's lists now."

And while the association focuses its efforts in B.C., it has often taken a
prominent role in issues of national importance.

The association pushed for a public inquiry into the deportation of Ottawa
resident Maher Arar and it intervened in court to support gay Oshawa, Ont.
teenager Marc Hall's fight to bring his boyfriend to his Catholic high
school's prom.

One reason for the association's success is money.

The B.C. group has an annual budget of about $400,000, which helps pay for
a staff of four and an office on West Hastings Street.

The association also relies on a small circle of senior lawyers who donate
their time to appear on the association's behalf in court challenges.

The Canadian association also has a substantial budget and staff.

But most other provincial associations are run by volunteers.

The Alberta Civil Liberties Association, for example, has no office, no
staff and only a tiny budget "for photocopying," said ACLA president
Stephen Jenuth.

Jenuth, a Calgary lawyer, essentially runs the organization in his spare
time with the assistance of other lawyers.

"We're fairly low-key," said Jenuth. "We provide comment and input on
various public issues ... We will occasionally assist or intervene in a
court case, but far less often than the B.C. association."

Jenuth confesses to occasional jealousy when he looks at his B.C. counterpart.

"Sometimes we'd like to be the British Columbia Civil Liberties
Association," he said. "It would be a lot of fun."

The BCCLA receives most of its funding from the membership dues of its 800
members and donations from local law firms.

But it also receives a substantial annual grant from the B.C. Law
Foundation -- which itself is funded by lawyers -- and has received
occasional grants from the province's gaming branch.

One secret to the association's success, said current president John
Russell, is that it is supported by high-profile British Columbians from
across the political spectrum.

The association's list of honorary directors includes former NDP premier
Mike Harcourt, former Conservative prime minister Kim Campbell, radio
personality Rafe Mair and environmentalist David Suzuki.

The association also has a reputation for being more moderate than many
civil liberties groups -- a reputation some say gives the association more
weight with the public.

"The secret is they have been pragmatic," said Mair.

"They've tempered their positions with wisdom. ... Once they get a bone in
their teeth, they run with it.

"[But] what they've done is be careful not to grab ahold of a bone without
some meat on it."

While the Canadian association has repeatedly called for a
civilian-controlled body to investigate the police, the BCCLA argues that
police -- like other professionals, such as doctors and lawyers -- should
be given the chance to investigate themselves.

The B.C. association has given its cautious support for "secure care" --
the brief incarceration of street kids against their will to help place
them in drug-treatment programs.

And in the current case of Chris Kempling -- a Quesnel teacher suspended by
the B.C. College of Teachers for writing anti-gay letters to his local
paper -- the BCCLA supported the college's position.

While some saw the Kempling case as a clear violation of his free-speech
rights, the BCCLA argued that because Kempling referred in his letters to
his job as a school guidance counsellor, his letters did affect his job.

Perhaps most surprisingly, the BCCLA has supported so-called "bubble zone"
laws that prevent anti-abortion activists from protesting near abortion
clinics.

"The association is respected for not being a knee-jerk association that
doesn't think carefully about the issues," said BCCLA executive director
Murray Mollard.

"If you look at our positions fairly carefully, we're not absolutists per
se, even in the area of freedom of expression ... There are competing
interests that we'll recognize."

BCCLA positions are decided upon by its board members. And while the board
sees some issues as clear-cut violations of fundamental rights, many are
far more complex.

"In the last 10 or 20 years, there's been an appreciation that quite often
questions of rights are questions of competing rights, not absolute rights
of the lone citizen against the state," said Jones. "That's been a real
challenge philosophically."

For example, when the province first introduced its bubble-zone law in the
mid-1990s, the BCCLA opposed it -- saying it violated freedom of speech.

Three months later, after several heated board meetings, the association
changed its position -- saying the rights of a woman seeking an abortion
not to be harassed outweighed what it saw as the relatively minor
infringement of protesters' rights to protest where they wanted to.

"That was a controversial decision," said Russell. "People within the
organization still disagree about that."

But on some issues, there is little disagreement.

Few BCCLA positions have been more controversial than its intervention in
the Sharpe child pornography case.

But for the board, the position it should take was clear: That while
pornography involving the actual abuse of children should be outlawed,
Sharpe's written stories -- nothing more than the product of his
imagination -- should not.

"That was not a hard position to reach," said Russell. "Freedom of
expression is not going to mean very much if you can censor simple acts of
the imagination."

One of the peculiarities of the BCCLA is that -- while it receives
substantial support from the legal community -- it is not just a lawyers' club.

Indeed, of the five most recent presidents of the association, just one --
Jones -- is a lawyer. The two most recent, Russell and John Dixon, are both
philosophy professors.

Perhaps as a result, while the association intervenes in a number of legal
cases every year, it also produces handbooks and pamphlets on rights
issues, sponsors conferences and speakers (such as a recent forum on drug
policy, "Beyond Prohibition") and meets with governments and institutions
to lobby for its point of view.

"We don't think of a legal solution as the first solution to every
problem," said Russell.

For example, said Mollard, in recent months the association has met with
several chiefs of police in the province to urge them to conduct an audit
of the police complaints system.

"Our primary weapon in all of this is moral suasion [and] the cogency of
our arguments," said Mollard. "We can't go to court on all these cases."

Exactly why the B.C. association has been so much more successful than
other provincial groups remains a bit of a mystery.

"I think people in B.C. are probably more conscious of rights issues than
maybe in other provinces," said Ron Skolrood, a constitutional lawyer in
Vancouver.

But Skolrood said it's hard to say how much of that is due to the BCCLA
itself raising the profile of civil liberties in the province.

"I think they're a very valuable organization and I think, as citizens,
we're lucky to have such a vibrant civil liberties organization," said
Skolrood, who is not involved with the BCCLA.

The political polarization in B.C. -- from pot-smoking lefties to the
Fraser Valley Bible belt -- may also have something to do with the BCCLA's
success.

"We have people on a variety of sides of the political spectrum and they
feel strongly about their beliefs and ideas," said Mollard. "There are
inevitable clashes."

Those clashes, Mollard said, highlight the importance of protecting
everybody's right to express their opinion and live their lives as they see
fit.

The BCCLA's commitment to the principles of civil rights has, at times,
made it a difficult organization to love.

For many years, the BCCLA was seen by many in the gay community as a
champion of their rights.

The association helped bankroll Little Sisters' successful legal challenge
against Canada Customs.

It opposed the Surrey school board's banning of books that depicted
same-sex relationships.

And the association has been a longtime supporter of same-sex marriage.

But three years ago, the BCCLA intervened at the Supreme Court of Canada in
favour of Trinity Western University's right to demand its students sign a
declaration that they would not engage in homosexual activity.

For some in the gay community, the association's support of Trinity
Western, a private Christian school, was seen as a betrayal.

But the association saw it as a clear case of Trinity Western exercising
its freedom to exclude those who didn't agree with its religious beliefs.

"We lost some friends in the gay community over that," said Russell. "But I
think the position we took was the right one ... The fact of the matter is,
we're not just a gay-rights group. We're interested in broader principles
and one of those other principles is respect for religious freedom."

Jones said angering former allies is tough, but unpopularity is just part
of the job description for a civil liberties group.

"One of the dangers of civil liberties work is that if you do it right, you
don't keep your friends forever," he said.

"For me, that's the great strength of the association."