Police Powers

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.

CCLA concerned by Supreme Court judgment on police cell phone searches

By on December 11, 2014

The Supreme Court’s decision this morning in R. v. Fearon gives the police seemingly wide latitude to search cell phones – without warrants – upon individuals’ arrest.  The Canadian Civil Liberties Association is concerned that the judgment represents a significant blow to the privacy rights of average Canadians.  Searching cell phones or any personal digital device is not that same as searching a physical object or even a pat-down search or frisk;  rather, searching a cell phone can reveal intimate details about many aspects and spheres of an individual’s life and indeed, the phone can continue to generate evidence even after seizure.  The constitutional right to be free from unreasonable search and seizure is very clearly engaged, and CCLA had urged the court that, absent exigent circumstances, the police should get a warrant to search personal cell phones. Searching a cell phone upon arrest without a warrant, is in our view, akin to finding a house key in a pat down search and then using that key to conduct a warrantless search of the arrestee’s house. The Supreme Court has, in previous cases, excluded such privacy-sensitive contexts – including a person’s home – from warrantless post-arrest search powers. Finally, we are concerned that the majority’s instructions to the police are complicated, will be very difficult to both monitor and implement in practice, and do not account for the fundamental concern that police in the heat of the moment of arrest are not best-placed to determine whether the state interest in law enforcement outweighs the detrimental impact upon privacy in searching a personal cell phone. We agree with the minority opinion that once such a warrantless search occurs, there is little that can be done to remedy the privacy violation.

Over 30 years ago the Supreme Court of Canada held that, in general, police must get a warrant before they can forcibly invade a person’s privacy.  There are, however, exceptions to this rule, and searches of arrestees is one of them.  Generally, the police do not need a warrant to search a person who is under arrest, and regularly do look through arrestees’ bags and pockets to ensure officer safety and secure potential evidence.  Fifteen years ago this kind of search might turn up a wallet, some papers, maybe an address book.  Today, however, we can carry our entire digital existence – phone records, contact lists, emails, social media profiles, location records, photos and much more – in our pockets.  The privacy implications of giving police warrantless access to this information upon arrest are enormous.  In CCLA’s view, cell phones cannot be treated like the scraps of paper, notes or printed photos we carry in our pockets or knapsacks.  Rather, they are more like entirely distinct places – with vast amounts of personal information and correspondence and an unknown number of automatically-entered passwords that open doors to any number of linked accounts.

The CCLA appeared before both the Ontario Court of Appeal and the Supreme Court of Canada in R. v. Fearon to argue that a cell phone is not like a wallet or papers you may carry in your purse – and the law should not treat it in the same way.  We urged that, absent exigent circumstances such as danger to life or imminent loss of evidence, the police should be required to get a warrant before searching a person’s hand-held electronic device. The vast, detailed, intensely personal information that can be accessed through our cell phones should not available for state inspection simply because an individual has been arrested and there may be evidence on his or her phone.  Warrants are democratic instruments essential for the protection of privacy – when possible, we should use them.

On December 11, the Supreme Court released their judgment in the case. While the majority of the Court recognized the cell phones do contain a significantly increased amount of personal, private information, they did not limit these searches to exigent circumstances.  Instead, the Court set out a test that, in CCLA’s view, opens the door to widespread warrantless cell phone searches upon arrest.  According to the majority, police may search cell phones incident to arrest where:

(1)         The arrest was lawful;

(2)         The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a)                      Protecting the police, the accused, or the public;

(b)                     Preserving evidence; or

(c)                      Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3)         The nature and the extent of the search are tailored to the purpose of the search; and

(4)         The police take detailed notes of what they have examined on the device and how it was searched.

The majority’s decision does make it clear that not all post-arrest cell phone searches will be justified.  The decision states, for example, that “a search of a cell phone incident to arrest will generally not be justified in relation to minor offences” and that, where there is no important law enforcement objective that would be served by a prompt cell phone search, the warrantless search will not be justifiable.

In CCLA’s view, however, it is very unclear how these restrictions will be applied in practice. As stated by the three dissenting justices, the majority’s approach “puts the balancing decision in the hands of the police”, who will be tasked with deciding “whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a personal cell phone …”  Arresting someone is not the same as charging them with a crime.  Many people who are arrested never even proceed to charges, let alone end up in trial in front of a judge.  CCLA will continue to advocate a better understanding of the privacy implications of new technology in the context of policing.

To read CCLA’s factum at the Supreme Court click here.
To read the Supreme Court’s decision click here.

To read CCLA’s factum at the Court of Appeal click here.
To read the Court of Appeal’s decision click here.

 

Appellate decision approves G20 class action

By on August 8, 2014

On August 6, 2014, the Ontario Divisional Court decided that hundreds of individuals who were detained and arrested in mass police cordons during the G20 can have their legal claims heard together as a class action.  Hundreds of those detained at the Eastern Avenue Detention Centre may also have their claims jointly heard as part of a related class. The Court’s decision recognizes the seriousness of the claims being brought forward and the alleged conduct of the police on that weekend in June 2010. As stated by Justice Nordheimer, who authored the unanimous decision:

“If the appellant’s central allegation is proven, the conduct of the police violated a basic tenet of how police in a free and democratic society are expected to conduct themselves. Their actions, if proven, constitute an egregious breach of the individual liberty interests of ordinary citizens. On this view of the respondent’s conduct, it is not hyperbole to see it as being akin to one of the hallmarks of a police state, where the suppression of speech, that is uncomfortable for those in positions of power, is made a prime objective of those whose job it is to police the public.”

CCLA filed evidence in support of the motion for certification, and has continued to be involved in other post-G20 accountability efforts including ongoing disciplinary proceedings against the senior Toronto Police Service officer who ordered several of the mass arrests. You can learn more about the ongoing class action, including who is included within the class, at http://www.g20classaction.ca/. To read more about CCLA’s actions before, during and after the 2010 G20 Summit click here.

Read the decision here.

Read the full press release from Klippensteins Barristers & Solicitors here.

CCLA welcomes Supreme Court’s restrictions on ‘Mr. Big’ technique

By on August 6, 2014

On Friday August 1st the Supreme Court released its decision in R v Hart, a case that examined whether the existing legal limits on a police investigative tactic known as “Mr. Big” were sufficient to protect individuals’ rights and ensure fair trials. The Court agreed with the position advanced by CCLA and a number of others that the existing limits on this particular police technique were not sufficient, and crafted a new more rigorous test aimed at ensuring that police activities in these undercover operations do not produce false confessions and are not abusive.

The “Mr. Big” tactic is a specific type of undercover police operation. Police target a suspect, befriending him or her and slowly involving the suspect into the activities of a fictitious criminal organization. The suspect is given financial rewards and friendship, with the promise of more money and support to come. Eventually, he or she is introduced to the crime boss – “Mr. Big” – who must approve the suspect’s involvement, and presses him or her for a confession to the unsolved crime.

As recognized by the Supreme Court, there are numerous dangers involved in this type of police operation: “Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats.” In short, it is an inherently coercive process that can result in false confessions. Introducing the confession in court also necessarily involves detailed testimony of the suspect’s willingness to commit other crimes and join a criminal organization – information that can easily prejudice a jury against the accused.

In recognition of these dangers, the Supreme Court established strong new rules governing the admissibility of Mr. Big confessions. These confessions will now presumptively be inadmissible, and it will be up to the Crown to prove that they are reliable enough to be used as evidence. The conduct of the police will also be scrutinized: “No matter how reliable the confession, the courts cannot condone state conduct – such as physical violence – that coerces the target of a Mr. Big operation into confessing.”

CCLA welcomes the newly restrictive rules governing these coercive police techniques.

To read CCLA’s factum before the Supreme Court click here.
To read the Supreme Court’s decision click here.

A Win at the Supreme Court on Internet Privacy

By on June 13, 2014

The Supreme Court of Canada has rendered its decision in R. v. Spencer, a case that considered the privacy interests that an individual has in Internet activities and affirmed that anonymity is a key component of the right to privacy.  The Court also clarified a point of long-standing disagreement between privacy advocates and law enforcement authorities, and concluded – unanimously – that police require judicial authorization to obtain subscriber information from internet service providers.  CCLA believes that the decision sends a clear signal that privacy rights exist in the digital world.

The  decision arose out of the case of Mr. Spencer, who was charged with possessing and distributing child pornography.  The police had information about an internet protocol (IP) address that had shared what was believed to be child pornography.  The police sought information about the subscriber associated with the IP address Mr. Spencer’s internet service provider.  The law enforcement request for information was purportedly made pursuant to a provision of the Personal Information Protection and Electronic Documents Act (PIPEDA), which is privacy legislation directed at protection of privacy in the private sector (i.e. information held by private entities).  The information was handed over without a production order (an order that is similar to a search warrant) and the police then sought and obtained a search warrant to enter Mr. Spencer’s home and search his computer.

The Supreme Court had to address the question of whether the request for information from the internet service provider was a “search” within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms.  The Court noted that while the basic information being sought (name, address and telephone number) appears mundane, the information that it would reveal about an individual – in particular, their activities online, was substantial.  The Court also laid out that the nature of the privacy interest at issue in the case had three different aspects: privacy as secrecy, privacy as control and privacy as anonymity.  The Court’s recognition of anonymity as a concept protected by section 8 echoed the arguments made in CCLA’s factum and may have wide-reaching implications for future cases.

The Court also had to consider whether Mr. Spencer had a reasonable expectation of privacy in the information that was obtained by the police (and the information that it revealed).  The Court considered the impact of PIPEDA as well as the terms of service governing the relationship between the internet service provider and its customers.  It concluded that these factors supported the existence of a reasonable expectation of privacy.  In dealing with the proper interpretation of PIPEDA, the Court held that the legislation does not allow the police to simply obtain information which is subject to a reasonable expectation of privacy, merely by asking.  In other words, PIPEDA does not create any search or seizure powers.

The Court concluded that Mr. Spencer’s Charter rights were violated but held that the evidence, on the facts of this case, should nevertheless be admitted.  It considered that the police did not act with wilful or flagrant disregard of the Charter and that the belief that they were acting lawfully was a reasonable one.  Given the seriousness of the offences, the Court held that it would bring the administration of justice into disrepute to exclude the evidence.

The implications of the decision are substantial, and may play a significant role in CCLA’s ongoing Charter challenge to PIPEDA.  In particular, the Court’s decision confirms CCLA’s view that PIPEDA is legislation to protect privacy, and cannot be used to undermine it.  CCLA was represented by Anil Kapoor and Lindsay Daviau of Kapoor Barristers.

Read the Court’s decision in R. v. Spencer here.

Read the CCLA’s factum in the case here.

CCLA addresses the Toronto Police Services Board on “carding” and racial profiling

By 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.

CCLA Urges Senate Committee to Recommend Complaints Review Mechanism of CBSA

By 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.

Right to Protest Under Fire in Ukraine

By 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.

CCLA welcomes ongoing investigation into weekend police shooting

By 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.

    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.

CCLA concerned about DNA testing of Migrant Workers

By 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.

CCLA Calls on Police Services Board to Stop Racial Profiling and Carding

By 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.