The CCLA seeks to ensure that police powers are used in a manner that is necessary, proportionate and consistent with constitutional standards. Specific police powers that the CCLA has focussed on include detention and arrest, the use of force, and search and seizure.
Police Powers is part of the Public Safety program. You can find more information about it on its main program page.
By Peter Goffin
on April 9, 2014
On April 8th, 2014, CCLA presented submissions to the Toronto Police Services Board on the issue of police carding and racial profiling. To its credit, the Board is working to develop its first-ever policy regarding “community contacts” – officers stopping and engaging members of the community in the course of day-to-day policing. Unless the police suspect that an individual is connected to a particular crime, the individual is under no legal obligation to speak with police. However, many “contacts” have taken place for years based not on consent or voluntary participation, but based instead on individuals’ lack of information about their rights; feelings of fear, intimidation and threat; power imbalances; and police conduct. At the TPSB meeting on April 8th, almost 20 activists and community members gave deputations before the Board, describing the devastating impact that random police stops have had on marginalized communities in Toronto, and urging the Board to end such stops.
CCLA presented a deputation and written submissions to the Board, focussing on ways the draft policy should be strengthened and clarified. In particular, we emphasized that informal interactions between police officers and community members (such as a greeting) cannot include questioning as to a person’s identity, address, where they are coming from or going, associates, and other personal information, and must be based on consent and voluntariness. We also highlighted the need for robust accountability mechanisms.
Read CCLA’s written submissions.
By Peter Goffin
on April 1, 2014
On March 31, 2014, the CCLA’s General Counsel Sukanya Pillay appeared before the Senate Standing Committee on National Security and Defence to participate in the Senate’s study on the policies and practices of the Canada Border Services Agency (CBSA). The CCLA focused on five areas of concern:
(1) the need for an independent review mechanism;
(2) the note-taking practices of CBSA officers while conducting interviews;
(3) the treatment of individuals detained in Immigration Holding Centres and in Correctional Facilities;
(4) the barriers to access to justice for detained individuals; and
(5) the broad discretion afforded to CBSA officers in initiating inadmissibility applications and release conditions.
The CBSA enjoys sweeping law enforcement powers and engages in information and intelligence sharing with the RCMP, CSIS and foreign agencies. These powers can be highly intrusive and have the potential to seriously affect the lives of individuals. However, unlike the RCMP, CSIS and other law enforcement agencies, the CBSA currently has no independent external review of its practices. CCLA argued that the CBSA must be subject to the same independent review mechanism recommended by Justice O’Connor in the second Arar Commission Report, for the RCMP. Such a mechanism would include both independent complaints investigation and self-initiated review, in order to ensure compliance with Canadian constitutional safeguards and international law. CCLA appeared on the panel, along with a witness from the BCCLA, Josh Paterson who is executive director.
To read CCLA’s submissions, click here. To watch a webcast of the Senate Committee Hearing, click here.
The CCLA submitted to the Committee that CBSA officers conducting interviews must take careful notes, which are free of bias and provide context, because these notes can form the basis for IRB hearings and other proceedings down the road. Refugees and asylum-seekers are among the most vulnerable people on the planet and CBSA officials also need to ensure they do not intimidate refugee claimants during interviews. Given the serious repercussions for the individual emanating from CBSA interviews, the CCLA recommended that all CBSA interviews be videotaped.
The CCLA expressed its serious concern to the Committee regarding the treatment of individuals held in Immigration Holding Centres and in Correctional facilities, in particular those individuals with mental health issues. The CCLA recommended that the Committee consider detention conditions in its study.
The CCLA is also deeply concerned about prolonged and indefinite detention under the authority of the Immigration and Refugee Protection Act (IRPA), as well as the practical implications of detention, such as transferring individuals away from family and legal counsel. Geographic separation from a person’s lawyer can lead to significant barriers to access to justice.
Finally, the IRPA grants broad discretion to CBSA officers to refer potentially inadmissible persons to the Minister . The CCLA expressed concern for this broad discretion and its potential abuse, especially given that there is no appropriate oversight mechanism in place.
By Cara Zwibel
on January 23, 2014
Earlier this year, CCLA, in conjunction with partners from nine other countries around the globe, released a report on threats to the right to protest around the world. The report, Take Back the Streets, documented case studies from ten countries that demonstrate the constraints being placed on the right to peacefully protest. Unfortunately, the patterns documented in the report are once again in the news. There are reports that protesters in the Ukraine are experiencing serious violence at the hands of police and the government has recently passed extremely restrictive anti-protest laws.
By Abby Deshman
on December 16, 2013
The CCLA is concerned by the news of a police shooting in Toronto’s Queen subway station. Very few details have been released, and we welcome the news that the Special Investigations Unit (SIU) is investigating. We will continue to monitor the situation, and will be specifically looking for information regarding why the police thought such an exceptional level of force was necessary and justifiable.
CCLA has in the past spoken out about the need for increased focus on de-escalation, mental health training, and advocated for robust and responsive independent investigation mechanisms to provide oversight in situations such as these. Although more information is needed before pronouncing judgment on this most recent shooting, previous incidents have placed the police use of force model into question. After Sammy Yatim’s death on a Toronto street car this summer we published a piece on what to ask for after police shootings – it is deeply unfortunate that those words have, once again, become relevant:
Emotions run high in the context of police shootings and there is nothing to be accomplished by ignoring the rigours of the processes put in place to investigate, but we should demand that they be followed expeditiously.
- We should demand absolute co-operation from the Toronto Police Service with the Special Investigations Unit (SIU). In the past, there has been friction and disagreements between the SIU and the TPS; it is time that they be put aside. We should demand that the TPS disclose all information promptly and co-operate fully with the investigation. Chief Blair has committed to that course of action and we should hold him to that commitment.
- We should demand transparency. The public has the right to know what has happened here. A shooting death at the hands of the police epitomizes the ultimate power of the State. It is frightening to imagine ourselves at the hands of mistreatment by the police whom we are encouraged to trust. That is why there is a duty to inform the public, and speak substantively to the incident.
- We should ask for a timely investigation from the SIU. The process must be thorough and fair, but it must be done efficiently. Too often, delays prevent meaningful accountability.
- If there are reasons to believe that criminal charges should be brought against [any] police officer …, they should be laid and due process should be afforded to the charged officer, just as it should be against any other accused. The rule of law requires equality before the law and no preferential treatment is to be afforded to anyone. That does not mean, however, that people should be treated more harshly or that the circumstances, mitigating and aggravating, ought not to be put to a judge. Everyone is entitled to a day in court – police officers as well.
- Finally, we should demand that there be a review of the training standards and the use of force model. It could very well be that this untimely death was the result of an individual’s mistake and bad judgement. But this is one death too many. Incidents like this should not happen, and we owe it to ourselves to look deeply, honestly, and thoroughly at how they can be prevented. The use of force model goes only in one direction. It trains the police officer to escalate the confrontation with each level of defiance from the suspect. It ends with “shoot to kill.” Errors are too costly. The use of force model must be re-evaluated.
By Noa Mendelsohn Aviv
on December 13, 2013
According to recent reports, a large number of migrant workers were approached by police and asked to provide DNA samples as part of an investigation into a sexual assault. Although police reportedly had a description of the suspect, the group of individuals asked to give a DNA sample was diverse, ranging in age “from 21 to 61, with heights from five feet to six-foot-five, weighing between 130 pounds and 310 pounds.” The individuals’ only common feature, according to reports, is the colour of their skin.
CCLA is concerned about policing on the basis of racial characteristics and the use of random DNA tests, which are a highly invasive measure – and is looking into this matter.
To read more about CCLA’s work on racial profiling, click here.
To read more about CCLA’s work concerning random DNA testing, click here.
By Noa Mendelsohn Aviv
on December 13, 2013
On November 18th, 2013, CCLA participated in a special community meeting held by the Toronto Police Services Board on racial profiling and carding. The Board heard from 23 deputations on the Toronto Police Service’s PACER report, and on the response to it by Board Chair Dr. Mukherjee.
CCLA’s submissions called for an end to the practice of carding (or “street checks”) and the implementation of concrete measures to address race-based harassment. Concrete measures should include:
- a policy that sets out specific guidelines a to when police may stop and question individuals;
- a policy that recognizes power imbalances between police officers and the individuals they stop;
- accountability tools such as providing a carbon copy of (most of the) data recorded to the individual stopped; and
- the creation of an independent external civilian oversight body.
To read CCLA’s submissions to the Board, click here.
By Cara Zwibel
on November 26, 2013
The federal government recently introduced Bill C-13, a law it says is aimed at addressing the problem of cyberbullying and the tragic teen suicides that have resulted from this problem. If passed into law, the Bill would amend the Criminal Code and other laws in a number of ways; first, by creating a new offence around distributing intimate images; and second by giving police officers a number of new investigative powers and tools to deal with online crime.
Unfortunately, these changes are unlikely to address the very real problem of cyberbullying and will intrude into Canadians’ privacy in new and concerning ways. Many of the proposed amendments are powers the government previously tried to introduce in their “lawful access” legislation, which was roundly criticized by the CCLA and other groups and which was ultimately abandoned. While Bill C-13 doesn’t go as far as earlier cybersurveillance bills, CCLA remains concerned about the new investigative powers and the impact they will have on personal privacy and freedom of expression. We are also concerned that the new offence related to the distribution of intimate images may be unduly broad and would like to see the Bill amended to make malicious intent an element of the offence.
CCLA will be doing a thorough review of Bill C-13 so check back with us for more details on the civil liberties impact of this proposal.
By Dora Chan
on October 21, 2013
Watch the above video to hear from CCLA’s Director of Public Safety Abby Deshman on G20 Toronto, policing at protests and You Should Have Stayed Home.
CCLA is partnering with Praxis Theatre throughout their National Tour of You Should Have Stayed Home, a performance piece about the largest peacetime mass arrest in Canadian history. Written by Tommy Taylor, the play is an award-winning account of what he and many others experienced when they were arrested and detained during the G20 Toronto Summit in June 2010. Starting this fall, Praxis Theatre will take this play on a Canada-wide tour to:
- Whitehorse, Yukon: Yukon Arts Centre, Sept 12-15 2013
- Vancouver, British Columbia: Firehall Arts Centre, Sept 24 -Oct 5, 2013
- Toronto, Ontario: Aki Theatre, Oct 16 -27, 2013
- Montréal, Quebec: Mainline Theatre, Oct 30 – Nov 2, 2013
- Ottawa, Ontario: Arts Court Theatre, November 13 -16, 2013
If you’re interested in getting involved and participating in the play, check out this call for volunteers here!
CCLA is helping Praxis Theatre to pull together panel discussions on broader issues facing civil liberties in several of the cities that the play will be hosted in. See below for details about the panels in Vancouver and Toronto:
TORONTO PANEL DETAILS
Post-show Panel Discussion on Civil liberties and protest in post-G20 Toronto
Where: Aki Studio Theatre @ Daniels Spectrum – 585 Dundas Street East.
When: Tuesday, October 22, 2013. Show @ 8pm panel @ 9:30pm.
Moderated by: Praxis Theatre Artistic Director Michael Wheeler
Abby Deshman – CCLA: Director, Public Safety Program
Abby first joined the CCLA as the Law Foundation of Ontario’s Pro-Bono Articling Fellow and stayed on as the Project Director of the Fundamental Freedoms Project. She graduated from the University of Toronto Law School with an Hons JD in 2008, and obtained an LLM from New York University in 2010. She is currently involved in all aspects of CCLA’s advocacy and educational programs.
Prior to joining the CCLA she worked with numerous local and international non-governmental organizations, including the United Nations High Council for Refugees in Kenya and Human Rights Watch’s Terrorism/Counterterrorism division in New York. She was also a case worker in the law school’s International Human Rights Clinic, where she worked primarily on international human rights and counterterrorism issues, including the Clinic’s intervention before the Supreme Court of Canada in the Khadr case.
Her previous work has also taken her to Nicaragua, Bangladesh, Belize and Peru. Although she loves Toronto, she is concerned about the lack of sun available during Canadian winters, and is therefore constantly on the lookout for inexpensive flights to combat incipient vitamin D deficiencies.
Jan Borowy – Cavalluzzo
Jan Borowy’s practice areas include labour relations, human rights, pay equity and professional regulation. Jan brings to her practice a longstanding commitment to the promotion of workers’ rights and human rights. Her experience gives her an understanding of the importance of a clear strategy in union negotiations, campaigns, strikes, organizing and educational programs.
Jan is the former Research Co-ordinator at the International Ladies’ Garment Workers Union, where her work focused on a campaign for fair wages and working conditions for garment home-workers. She further developed her advocacy skills as the Worker’s Rights Community legal worker at Parkdale Community Legal Services. At law school, Jan developed an expertise in Aboriginal law and issues facing Aboriginal workers.
Jan’s experience within the firm has included close involvement in the representation of private sector and public sector workers before labour arbitrators, the Ontario Human Rights Tribunal, the Pay Equity Tribunal and the Ontario and Canadian Labour boards. Jan is a member of the Canadian Association of Labour Lawyers and the Canadian and Ontario Bar Associations.
Tommy Taylor – Writer/Performer: You Should Have Stayed Home
Tommy is a theatre artist, activist and NGO fundraiser living in Toronto. Recently Tommy was assistant director/video designer on The Belle of Winnipeg (Dora Winner), adaptor/director of Dear Everybody at the CanStage Festival of Ideas and Creation and director of Kayak at The SummerWorks Festival. He is a graduate of the Centre for Cultural Management (University of Waterloo/ CCCO), The Vancouver Film School and Humber College’s Community Arts Development Program.
Tommy was arrested (but never charged) and detained during the 2010 G20 Summit in Toronto. He has since turned his account of the experience into You Should Have Stayed Home. The show is on a cross-Canada tour for Fall 2013, playing in Whitehorse, Vancouver, Toronto, Montreal and Ottawa.
VANCOUVER PANEL DETAILS
Post-show Panel Discussion on Civil Liberties, Activism and Surveillance
Where: Vancouver, BC – Firehall Arts Centre, 280 E Cordova St.
When: Thursday, October 3, 2013, following the 8pm performance
Moderated by: Neworld Theatre Founding Artistic Producer Camyar Chai
About the Panelists
Micheal Vonn is a lawyer and has been the Policy Director of the BC Civil Liberties Association since 2004. She has been an Adjunct Professor at the University of British Columbia (UBC) in the Faculty of Law and in the School of Library, Archival and Information Studies where she has taught civil liberties and information ethics. She is a regular guest instructor for UBC’s College of Health Disciplines Interdisciplinary Elective in HIV/AIDS Care and was honoured as a recipient of the 2010 AccolAIDS award for social and political advocacy benefitting communities affected by HIV/AIDS. Ms. Vonn is a frequent speaker on a variety of civil liberties topics including privacy, national security, policing, surveillance and free speech. She is an Advisory Board Member of Privacy International. bccla.org
Harsha Walia is a South Asian activist, writer, and researcher based in Vancouver, Coast Salish Territories. She has been active in grassroots social movements for over a decade, including with No One Is Illegal, Women’s Memorial March Committee for Missing and Murdered Women, Radical Desis and more. She was one of the many leading up to both the Anti-Olympics Convergence and the G20 Protests in 2010, facing arrests and trumped charges at both. Harsha has been named one of the most influential South Asians in BC by the Vancouver Sun and Naomi Klein has called Harsha “one of Canada’s most brilliant and effective political organizers.” Her first book Undoing Border Imperialism is forthcoming in November 2013 by AK Press. Find her @HarshaWalia.
Greg McMullen is a litigation associate with Branch MacMaster. He focuses on class action work concerning privacy and access to information. Greg was one of the organizers of the BCCLA’s Legal Observer Program during the 2010 Winter Olympics, which trained more than 400 citizen-observers to record police interactions with the public (and especially with protesters) during the 2010 Games. He is also on the Board of Directors of the BC Civil Liberties Association, and authored the BCCLA’s Electronic Devices Privacy Handbook.
Tommy Taylor is a theatre artist, activist and NGO fundraiser living in Toronto. Recently Tommy was assistant director/video designer on The Belle of Winnipeg (Dora Winner), adaptor/director of Dear Everybody at the CanStage Festival of Ideas and Creation and director of Kayak at The SummerWorks Festival. He is a graduate of the Centre for Cultural Management (University of Waterloo/ CCCO), The Vancouver Film School and Humber College’s Community Arts Development Program. Tommy was arrested (but never charged) and detained during the 2010 G20 Summit in Toronto. He has since turned his account of the experience into You Should Have Stayed Home. The show is on a cross-Canada tour for Fall 2013, playing in Whitehorse, Vancouver, Toronto, Montreal and Ottawa.
By Abby Deshman
on October 10, 2013
CCLA has joined with nine other domestic civil liberties and human rights organizations from around the world to release a report, “Take back the streets”: Repression and criminalization of protest around the world. Download the report here.
In June 2010, hundreds of thousands of Canadians took to the streets of Toronto to peacefully protest the G20 Summit, which was taking place behind a fortified fence that walled off much of the city’s downtown core. On the Saturday evening during the Summit weekend, a senior Toronto Police Commander sent out an order – “take back the streets.” Within a span of 36 hours, over 1000 people – peaceful protesters, journalists, human rights monitors and downtown residents – were arrested and placed in detention.
The title of this publication is taken from that initial police order. It is emblematic of a very concerning pattern of government conduct: the tendency to transform individuals exercising a fundamental democratic right – the right to protest – into a perceived threat that requires a forceful government response. The nine case studies detailed in this report, each written by a different domestic civil liberties and human rights organization, provide contemporary examples of different governments’ reactions to peaceful protests. They document instances of unnecessary legal restrictions, discriminatory responses, criminalization of leaders, and unjustifiable – at times deadly – force.
The ten organizations that have contributed to this publication work to defend basic democratic rights and freedoms in nine countries spread over four continents. Across the regions where our organizations operate, States are engaged in concerted efforts to roll back advances in the protection and promotion of human rights – and often, regressive measures impacting the right to protest follows in lockstep. And across the globe, social movements are pushing for change and resisting the advancement of authoritarian policies; dozens, hundreds, thousands or hundreds of thousands of individuals are marching in the roads and occupying the public space. In rural areas across the global south, there are a variety of demands, calling for access to land or resisting the exploitation of natural resources that threaten indigenous peoples’ or peasants’ territories. In urban settings, housing shortages or lack of basic services spark social protests and upheavals. Even in developed economies, there are disturbing tensions provoked by the contraction of the economy, globalization policies and the social and political exclusion of migrants. Students’ movements all over the globe are demanding the right to education.
History tells us that many of the fundamental rights we enjoy in our contemporary life were obtained after generations before us engaged in sustained protests in the streets: the prohibition against child labor, steps toward racial equality, women’s suffrage – to name just a few – were each accomplished with the help of public expression of these demands. If freedom of expression is the grievance system of democracies, the right to protest and peaceful assembly is democracy’s megaphone. It is the tool of the poor and the marginalized – those who do not have ready access to the levers of power and influence, those who need to take to the streets to make their voices heard.
Unfortunately, these are also rights that are frequently violated. Our organizations have witnessed numerous instances of direct state repression during protests: mass arrests, unlawful detentions, illegal use of force and the deployment of toxic chemicals against protesters and bystanders alike. At other times the state action is less visible: the increased criminalization of protest movements, the denial of march permits, imposition of administrative hurdles and the persecution and prosecution of social leaders and protesters.
This publication attempts to address some of the gaps in public debate about the state responsibility toward the protection of the right to protest and assembly. We relate nine case studies from the nine countries about how governments have responded to diverse kinds of protest and public assembly.
The cases, originating from Argentina, Canada, Egypt, Israel and the Occupied Territories, Kenya, Hungary, South Africa, the United Kingdom and the United States, each present a unique state reaction in a unique domestic context. They relate instances of excessive use of force resulting in injury and death, discriminatory treatment, criminalization of social leaders, and suppression of democratic rights through law, regulation and bureaucratic processes. And despite the fact that all the cases come from different countries, with different substantive debates and different social contexts, a number of common threads are identifiable.
A number of case studies document disproportionate and illegal use of force by police, resulting in hundreds of wounded and dead. The American Civil Liberties Union details the case of police brutality against protesters in Puerto Rico, recounting violent beatings and low-flying helicopters spraying toxic chemicals over hundreds of peaceful demonstrators. The Egyptian Initiative for Personal Rights details six days in November 2011, when the police shot thousands of tear gas canisters directly into the crowds, resulting in numerous deaths due to asphyxiation, in addition to deaths caused by live fire and shotgun pellets. In one case, the police shot tear gas into a building and then sealed all the doors and windows, suffocating the people inside. In Kenya, police beatings and shootings around the 2013 election left several dead and dozens more injured. And in Argentina, the Centro de Estudios Legales y Sociales tells of police indiscriminately firing live ammunition to disperse of some of the poorest families from Buenos Aires, who had descended from the overcrowded outskirts of the city to peacefully occupy an open piece of land.
These cases collectively illustrate the use of lethal and deadly force in response to largely peaceful gatherings seeking to express social and political viewpoints. The deaths and injuries are caused both by the use of firearms with live ammunition, and also through the use of so-called “nonlethal” weapons – a term that we intentionally reject. The numbers of dead and injured due to the inhalation of tear gas and other less-lethal weapons clearly demonstrates the urgent need to clarify and expand the norms that regulate the use of these law enforcement tools. It is also striking that these documented acts of violence and repression are frequently compounded by a lack of accountability. Justice systems in multiple countries appear unwilling or unable to undertake the serious investigations necessary to hold powerful state actors accountable for their actions.
Several other chapters document the persecution or criminalization of those social leaders and community members that organize demonstrations. The Association for Civil Rights in Israel, for example, relates the struggles of community activist and West Bank resident Bassem Tamimi, who has spent over 13 months in jail for peaceful, expressive activities.
In Canada, the Canadian Civil Liberties Association sets out how a student leader was put on trial for contempt of court – and found guilty – after telling the media he thought it was legitimate for students to picket universities. And in Argentina, the social leaders who were essential to establishing dialogue with authorities during a critical point of social crisis were afterwards prosecuted. Their participation in official negotiations was used as evidence that they were capable of controlling others involved in the event, and that they had instigated others to commit crimes.
These cases demonstrate how the justice system not only frequently fails to provide accountability for the illegal acts committed by law enforcement, but can also at times act as a repressive force toward demonstrators and social organizations. Too often, those individuals who are courageous enough to lead peaceful opposition or voice dissent must also be brave enough to face subsequent prosecution and detention from government authorities. It is difficult to calculate the chilling impact such prosecutions have on current and future leaders of social movements.
The post-9/11 context has also made a mark on governments’ reactions to societal dissent. Many countries have introduced broad anti-terrorist laws, and as time passes there is an increasing risk that these tools of interrogation, arrest, search and detention will be redirected toward peaceful political activity and domestic dissent. The case study from Liberty provides one example of how the United Kingdom’s counterterrorism laws were applied to peaceful anti-arms protesters. It was only during Liberty’s case challenging the abuse of these search powers that the UK public discovered that the whole of Greater London had been subject to a multiyear, high-level terrorism designation giving police officers significantly enhanced powers of search and detention. The fact that this discretionary power was disproportionately and arbitrarily used against blacks, Asians, and individuals from other visible minority communities should not come as a surprise.
Finally, the case studies from the Hungarian Civil Liberties Union and South Africa’s Legal Resources Centre demonstrate how the very existence of laws regulating the exercise of the right to protest can facilitate the denial of rights and discrimination. In both countries, community groups had to go to the courts to force the government to facilitate their basic democratic rights. Laws that give authorities a measure of discretion can be applied or interpreted in a manner that restricts or limits the impact of the expression or actions of social groups – and in particular those groups that are vulnerable or likely to be subjected to discrimination. It is clear that, when faced with the potential disruption or inconvenience that is inevitably caused by protest, governments too often react by seeking to ban the demonstration, rather than accommodate it.
All the cases presented show the integral role played by civil society organizations in protecting these fundamental democratic rights. Each organization that has contributed to this publication recognizes that a democratic society must not only tolerate, but actively facilitate, social participation and protest. And each organization actively operates on the premise that, no matter the underlying cause or issue, individuals’ and groups’ right to protest must be protected. Dissenting voices must be heard. And they must be given the space – both legal and physical – to do so.
Recommendation 1: Increase regulation of less-lethal weapons
• Governments should establish and enhance domestic and international regulatory frameworks to control police use of less-lethal weapons, with particular attention to limits on deployment during protest
• Thorough, independent, scientific testing of less-lethal weapons should occur prior to deployment to establish lethality and health impacts
• Strict deployment guidelines and training must be implemented based on thorough, independent scientific studies, and reviewed regularly to ensure compliance and currency
Recommendation 2: Increase precision and clarity regarding the scope of human rights protection for protests
• States should explicitly affirm even protests that are strictly “unlawful” are equally protected by the right to freedom of peaceful assembly
• States should explicitly recognize that individuals who are exercising their peaceful assembly rights continue to receive protection, even when other individuals within a crowd commit acts of violence
• Government statements on the limits of peaceful assembly should be accompanied by an affirmation that other human rights norms, including limits on state use of force, remain relevant
Recommendation 3: Increase attention to, and vigilance of, legal and administrative limitations on the right to protest
• States should review domestic legislation to ensure that any administrative or legal regulations that could restrict protest are demonstrably necessary and proportionate
• All legislation that could restrict protest should explicitly state that the role of the state is to facilitate the right to protest
• Governments should carefully monitor the operation of these laws and policies to ensure they are not being implemented in a discriminatory or unnecessarily restrictive manner
About the Report
This document has been produced by a group of ten domestic human rights organizations which cooperate as the International Network of Civil Liberties Organizations (INCLO). Each organization is multi-issue, multiconstituency, domestic in focus, and independent of government. We advocate on behalf of all persons in our respective countries through a mix of litigation, legislative campaigning, public education and grass-roots advocacy.
The nine organizations that participated in the preparation of this report are the American Civil Liberties Union, the Association for Civil Rights in Israel, the Canadian Civil Liberties Association, Centro de Estudios Legales y Sociales (Argentina), the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Kenyan Human Rights Commission, the Legal Resources Centre (South Africa), and Liberty (United Kingdom). The tenth member of INCLO, the Irish Council for Civil Liberties, contributed editorially to the report.
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.