By Cara Zwibel
on November 15, 2013
The Supreme Court of Canada has issued its decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, which challenged Alberta’s private sector privacy legislation on the basis that it interfered with a union’s expressive activities on a picket line. The Court has held that Alberta’s Personal Information Protection Act does infringe freedom of expression in a way that is not reasonable or justified and has struck the law down on that basis. However, the Alberta legislature has twelve months to change the law before the decision comes into effect.
The case arose when workers at Edmonton’s Palace Casino went on strike and decided to video record their picket line. This is a common practice among unions and is one way to try to persuade people not to cross the line. In this case, the union put up a notice that the line was being recorded and advised people that their images might be posted on a website – casinoscabs.ca. Although this was not actually done, a number of people made complaints to Alberta’s Information and Privacy Commissioner who found that the union’s activities breached the Personal Information Protection Act. As a result, the union challenged the constitutionality of the Act, arguing that it infringed the union’s expressive freedoms in a way that could not be justified by the privacy interests it aimed to serve.
CCLA intervened in the case to urge the Court to balance both freedom of expression and the right to privacy – both important constitutional values that are worthy of protection. CCLA pointed out that an individual does not forfeit their rights to privacy simply by being in a public space. At the same time, the union’s expressive freedoms at issue here needed to be taken seriously and the fact that the Act didn’t carve out space for this kind of expression was problematic. CCLA is pleased that the Court’s decision recognizes the importance of both freedom of expression and privacy and will be watching to see what changes the Alberta legislature makes in amending the existing legislation.
Read CCLA’s factum here.
Read the Supreme Court’s decision here.
By Abby Deshman
on November 12, 2013
This morning the Ontario Court of Appeal released its decision in R. v. Nur, striking down the mandatory minimum sentence of three years in jail for possessing a prohibited firearm that is loaded or near readily accessible ammunition. CCLA intervened in Nur and one of its companion cases to argue that this mandatory minimum provision was unconstitutional.
CCLA has objected to mandatory minimum sentences for years, in large part because they restrict judges’ discretion to determine the sentence that is fit for the circumstances of the crime and the accused. At times, mandatory minimum sentences may impose grossly disproportionate amounts of jail time on individuals whose actions, while illegal, should not result in years of imprisonment.
As the Court of Appeal has now affirmed, the mandatory three-year jail sentence that attaches to s. 95(1) of the Criminal Code is one of those cases, amounting to cruel and unusual punishment in violation of s. 12 of the Charter. Although possession of a prohibited firearm sounds serious, the actual offence is very broad – so broad that it captures a range of behaviour that seems closer to a mistake in paperwork rather than criminal conduct. Under s. 95(1), a person can be convicted without committing a “gun related crime”, without causing even a risk of harm to anyone and, in fact, without “using” a gun at all. People who could be caught under this section of the Criminal Code would include:
- a person who buys a ranch but doesn’t register the firearm that was in one of the buildings,
- a firearms collection that is inherited by family members who never registered the guns,
- a teenager shows off his father’s firearm at a party in a picture that is posted online,
- a family member who transports a firearm to a person who is legally allowed to have it, or
- an American tourist who brings a firearm to Canada that is licensed in the US but not in Canada.
For these individuals it would not matter that their intentions were good, that they acted responsibly, had no criminal record, that they had jobs, families and commitments. The law simply states that, if the Crown proceeds by indictment, they must go to jail for three years. These and other similar examples were considered by the Court of Appeal, which ruled that there was a “cavernous disconnect” between these types of illegal acts and the punishment that judges would be forced to impose – a sentence that is “so excessive as to outrage the standards of decency”. Midway through the judgment the Court considers whether this type of cruel and unusual punishment could nevertheless be justifiable in a free and democratic society. The Court’s words should be carefully heeded, not only as legally-binding constitutional doctrine, but also as a policy guidepost to legislators and politicians who frequently tout irrationally harsh criminal justice:
No system of criminal justice that would resort to punishments that “outrage standards of decency” in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.
We couldn’t agree more.
By Abby Deshman
on November 7, 2013
Traditionally when the police get a warrant, they have broad authority to search through anything in the house that might uncover the evidence they are looking for. If the warrant says they can look for documents, they do not need specific authorization to look inside filing cabinets, cupboards or boxes that are inside the house. But what about electronic devices? Does a general authorization to look for documents mean they can search through your computer, your smart phone, and every account connected to them? Is a computer just like any other physical ‘thing’ in your house that the police may want to search, or does it present unique privacy interests? The CCLA intervened in R. v. Vu to address precisely this question, and urged the Supreme Court to find that the traditional rules for warrant-authorized searches needed to be tightened when it came to computers.
On November 7 2013 the Supreme Court released its decision, and strongly affirmed that computers and smart phones present unique privacy interests – and therefore require unique privacy protections. The Court ruled that computers are not mere ‘things’ but operate more like a separate ‘place’, or a portal to many separate places, each of which have the potential to hold vast amounts of private, personal information. In addition, unlike traditional household ‘things’, they track the user’s movements and actions by default – creating a trail of activity that most owners are unaware of and unable to delete. As explained by Justice Cromwell,
The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search.
CCLA had also urged the Court to recognize a constitutional requirement on the police to document their search steps. Ensuring that, when a computer is searched, the search is no more intrusive or extensive than authorized is a key component to limiting privacy invasions. Indeed, in the Vu case, one police officer admitted he purposely took no notes of his computer search because doing so would have meant he would have to testify about his actions in court. Although the Supreme Court declined to make search documentation a constitutional requirement, they did denounce the police conduct in this case, ruling that the police officer’s conduct was “clearly improper and cannot be condoned” and that “notes of how a search is conducted should … be kept, absent unusual or exigent circumstances.”
From now on, if police officers want to search computers pursuant to a warrant, they will have to get specific authorization to do so. And they had better take notes while they’re at it.
Read CCLA’s factum before the Supreme Court
Read the Supreme Court’s decision
By Peter Goffin
on October 31, 2013
On June 6th, 2011, the Honourable Justice Maranger of the Ontario Superior Court ordered Ottawa professor Hassan Diab, committed for extradition to France. France requested Professor Diab’s extradition in connection with the bombing of a Paris synagogue in October 1980.
Professor Diab has denied any involvement with the bombing, stating that he was not even France at the time, and denouncing violence of any kind.
Professor Diab’s case will be heard by the Ontario Court of Appeal, and CCLA will intervene to argue that Supreme Court of Canada jurisprudence requires the extradition judge to engage in a limited weighing of evidence to assess the sufficiency of evidence for commital to extradition. Anything less, we will argue, would violate section 7 of the Canadian Charter of Rights and Freedoms.
Read CCLA’s factum for the case.
By Abby Deshman
on September 27, 2013
The Supreme Court released its decisions in R. v. MacKenzie and R. v. Chehil this morning, a pair of cases involving police searches with sniffer dogs and the ‘reasonable suspicion’ standard. CCLA is concerned that the Court’s general formulation of the reasonable suspicion standard – that the evidence must support a possibility of criminal behaviour in light of the circumstances – sets a very low bar for authorizing police detentions and searches. Moreover, while a number of CCLA’s points were reflected in the Court’s broad statement of principles, the application of principles in these appeals gives rise to serious concerns about courts’ ability to meaningfully scrutinize and restrain police behaviour in such circumstances.
Currently under Canadian law, police are authorized to conduct a warrantless sniffer dog search if they have a ‘reasonable suspicion’ that an individual is involved in criminal activity. CCLA had argued that a rigorous, restrictive approach must be taken when examining the content of the ‘reasonable suspicion’ standard. As Justice Binnie stated in the first Supreme Court case that considered this issue, the court’s after-the-fact examination of police conduct is the only protection an individual has against this particular form of unlawful searches. CCLA urged the Court to clarify that the police must be able to offer objectively-verifiable evidence, and a proven link between ‘suspicious’ facts they observed and crime. Over-reliance on generalized malleable ’profiles’ of criminals or unsupported assertions of police expertise opens the door to stereotyping and profiling. Assertion of rights – in particular the right to silence – must not be used to contribute to an officer’s ‘reasonable suspicion’. And finally, the number of innocent people who could be falsely caught up in warrantless searches and detentions must also be taken into consideration.
The unanimous judgment in Chehil does reflect a number of CCLA’s points. In particular, the Court held that exercise of Charter rights should not provide grounds for reasonable suspicion, and that stereotyping and discriminatory factors have “no place” in the reasonable suspicion analysis. The Court also affirmed that a “police officer’s educated guess must not supplant … rigorous and independent scrutiny” and that “[a] method of searching that captures an inordinate number of innocent individuals cannot be reasonable, due to the unnecessary infringement of privacy and personal dignity that an arrest would bring.” CCLA also welcome’s the Court’s rejection of the government’s arguments that individuals do not enjoy a reasonable expectation of privacy in airports.
The application of these principles, however, gives a potentially alarming latitude to the police to stop, search and detain private individuals. In the MacKenzie case, the trial judge had concluded that there was not enough to support a ‘reasonable suspicion’ that Mr. MacKenzie was trafficking drugs. The trial court’s summary of the officer’s reasons for suspicion included “the driver’s “very high level of nervousness”; … the pinkish hue of the driver’s eyes, which in the police officer’s opinion is consistent with the use of marihuana; and the course of travel of the driver, which was from Calgary to Regina.” Although the officer testified that Calgary was a known source of narcotics and Regina was a known destination of sale, no evidence was offered to support that opinion. The BC Court of Appeal overturned the trial court, ruling that the officer’s observations were enough to support a “reasonable suspicion” that Mr. MacKenzie was trafficking drugs. Similarly, in the Chehil case, the “reasonable suspicion” was based on the observations that Mr. Chehil was travelling alone, that he had bought a one-way ticket from Vancouver to Halifax at the airline counter using cash, and that he had checked a relatively new, locked suitcase. Again, the trial judge found there was not enough objective evidence to support a reasonable suspicion, and the Nova Scotia Court of Appeal overturned the ruling.
The majority of the Supreme Court held that, in both cases, the searches were justified based on the officers’ observations, training and experience. CCLA is concerned that the vague, broad nature of the ‘evidence’ upholding the searches in these cases will open the door to police conducting searches and detentions of vast numbers of innocent individuals. The Association particularly agrees with the strong dissent in MacKenzie, that the ‘evidence’ identified by the police officer should not have been sufficient to support a privacy-intrusive search. Although we will need to wait for future cases to determine how the standard is being interpreted and applied by lower courts, CCLA is concerned that the majority’s application of principles to the facts will open the door for the police to engage in speculative searches and detentions based on generalized suspicion and after-the-fact justifications.
To read the Court’s decision in Chehil click here.
To read the Court’s decision in MacKenzie click here.
To read the CCLA’s factum in the appeal click here.
By Dora Chan
on June 14, 2013
The CCLA is extremely pleased with the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union, Local 30 v. Irving Pulp and Paper, a case that examined whether employers can impose random breathalyzer testing in unionized workplaces. The majority of the Supreme Court affirmed that mandatory, random and unannounced substance testing for all employees is an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace. Even when a workplace is ‘dangerous’ due to the type of jobs being performed, that is just the beginning of the inquiry – substantial intrusions into employees’ privacy must still be balanced against the safety gains the employer can reasonably show to result from the proposed police.
The CCLA argued that breathalyzer testing is a privacy invasion and that employers should not be able to unilaterally intrude into employees’ privacy based only on theoretical risks to safety. The decision of the Court aligns with the CCLA’s position that employers must prove that the benefits of random, mandatory substance testing in the workplace are proportionate to the negative effects of substance testing on employee privacy. The Court upheld the decision of the board of labour arbitrators, which struck down Irving Pulp and Paper’s random alcohol testing program because the employer had not established any significant degree of incremental safety risk attributable to employee alcohol use.
The CCLA is particularly pleased that the Court recognized that all forms of coercive bodily testing invade individual privacy and dignity. The Court affirmed that the seizure of bodily samples – whether the goal is to search for drugs or alcohol use – is always highly intrusive and must meet stringent standards and safeguards to satisfy constitutional requirements.
To read CCLA’s factum in the case, click here.
To read the full Supreme Court decision, click here.
By Cara Zwibel
on June 6, 2013
On June 13, 2013 the Supreme Court of Canada will hear arguments in the case of Bernard v. Attorney General of Canada et al. Ms. Bernard is a federal government employee who will argue that her personal contact information should not be released to the union to which she is compelled to pay dues as a federal employee. Ms. Bernard has chosen not to join the union as a member and believes that her employer’s sharing of this information with the union is a breach of her privacy and a form of forced association. The union argues that this information is required for it to carry out the legal duties it has under labour relations laws, even to non-union members. CCLA is intervening in the case to argue that the unions needs and legal obligations must be balanced against the privacy rights of employees. In addition, CCLA will argue that while freedom from association is protected by the Canadian Charter of Rights and Freedoms, the simple sharing of contact information is not a form of forced association.
The CCLA will argue that the freedom not to associate is triggered when a person is compelled to adopt views he or she disagrees with or is forced into a situation where it appears that he or she shares ideological views that he/she does not. Personal information should be strongly safeguarded, but circumstances should and do influence when it is reasonable to share such information. In a workplace where employees are unionized, the employer, employee and union are in a tripartite relationship. Since employers should not be involved in coordinating discussions between employees and unions, and given the obligations that unions owe to employees, the sharing of contact information is not a breach of privacy under the federal Privacy Act. The use of the information by the union is consistent with the reason why it was collected and, as a result, the consent of the person to whom the information relates is not necessary. However, CCLA recognizes the importance of respecting personal privacy and believes that unions must take appropriate measures to protect private information and how it is disclosed or used. Reasonable requests by an individual about how they prefer to be contact by the union should be respected.
Read CCLA’s factum here.
By Cara Zwibel
on June 6, 2013
In 2012, the Alberta Court of Appeal ruled that since individuals crossing a picket line appeared in public, they had essentially waived their right to privacy. The case arose when casino workers went on strike and videotaped the picket line. This is a common union practice and is done for various reasons including discouraging people from crossing the line, recording any incidents that occur on the line, and for future training purposes, among others. The union posted signs advising members of the public that the line was being recorded and that the images captured might appear online (although this did not happen). Some people lodged complaints about this practice to Alberta’s Privacy Commissioner and the union argued that preventing them from recording activities on the line was a violation of freedom of expression.
CCLA is intervening in the case to ask the Supreme Court of Canada to take an approach that takes both freedom of expression and the right to privacy seriously. We will urge the Supreme Court to take a more nuanced view of the intersection of privacy rights and freedom of expression than was taken by the Alberta Court of Appeal. Since neither right is absolute, neither one should prevail at the other’s expense.
The CCLA will argue that simply stepping outside does not mean a person has abandoned all rights to privacy. Rather, CCLA proposes a weighing of the rights by considering what kind of personal information is involved, the purpose of the expression, the way in which the information is recorded, stored, or disseminated, and the possibility of implied consent where notice that personal information is being recorded has been given. These factors should be considered separately with respect to the collection of the information, it use, and its disclosure. Each of these might involve different considerations and the balance between expression and privacy may need to be struck differently. This type of analysis is important because a great deal of intensely private information is revealed in public every day, including for example, what religion someone subscribes to just by entering the doors of a house of worship, or that someone is a recovering alcoholic when they go to an AA meeting in a community centre. Finally, CCLA will argue that the exemption for journalistic activity in Alberta’s Personal Information Protection Act should not be confined solely to traditional media, particularly in light of the citizen journalist movement and the increasing popularity of blogs and non-traditional news sources.
Read the CCLA’s factum here.
By Abby Deshman
on April 19, 2013
The CCLA is before the Supreme Court today, arguing that police officers involved in an investigation by the Special Investigations Unit (SIU) into the use of force resulting in death or serious injury to a civilian are not entitled to the assistance of legal counsel in the preparation of their duty notes of the incident. Duty notes are notes that are prepared in the normal course of an officer’s day on the job. When there has been a police-involved death or serious injury, witness officers must hand their notes in to the SIU, which is the independent body that conducts criminal investigations into such occurrences. It is essential to the integrity of the investigation and public confidence in the process that officers’ notes be contemporaneous and independent, thereby ensuring that they are accurate and unedited accounts of what occurred. Allowing lawyers to review, edit, or advise police officers on the content of their notes would significantly undermine the independent oversight regime.
To read the CCLA’s factum before the Supreme Court click here.
To read the Court of Appeal’s decision click here.
To read the CCLA’s factum before the Court of Appeal click here.
By Abby Deshman
on April 5, 2013
The Supreme Court has released its decision in Penner v. NRPSB, a case that examined whether a finding by the police complaints system can effectively terminate an ongoing or subsequent civil action. The Supreme Court affirmed that, due significant differences between the two legal procedures, it would be a “serious affront to basic principles of fairness” to allow a finding in a police complaint hearing – which is presided over by the Chief of Police or his or her delegate – end a civil suit suing the police force. The Ontario Court of Appeal had decided that, because the police discipline complaint brought by Mr. Penner had been dismissed, he could no longer pursue his claim in a civil action for damages. CCLA welcome’s the Supreme Court’s majority decision overturning that ruling.
An individual who has been mistreated by the police has a number of remedies:
- A victim may complain to a police complaints system – a system that is designed to discipline police officers for misconduct through employment-related sanctions. In the Ontario police complaints system, the Chief of Police is the one who is ultimately responsible for conducting a hearing into alleged police misconduct.
- A victim may also sue the police for damages through a civil action, claiming that his or her rights have been violated and demanding compensation for the injuries suffered. In a civil suit, an independent judge is the ultimate arbiter of whether or not the police force is liable.
CCLA was extremely concerned about the implications of the Court of Appeal’s judgment, which would have deprived individuals of essential remedies for police misconduct and made the Chief of Police an adjudicator not only of internal discipline matters, but of the civil liability of the police force as well. The resulting conflict of interest would have seriously undermined public confidence in the police complaint and discipline process. The Association intervened in the case to ensure that the avenues for victims to pursue redress for police misconduct remained meaningful and viable.
To read the CCLA’s factum click here.
To read the Supreme Court’s decision click here.