Privacy

The CCLA seeks to ensure that personal privacy is adequately respected by police when they are handling personal information. This is particularly important in the context of procedures that may result in the disclosure of personal information, such as background checks.

Privacy is part of the Public Safety program. You can find more information about it on its main program page.

CCLA urges TDSB not to expand record check program

By on April 9, 2014

It has been reported that trustees for the Toronto District School Board will consider a motion that would require all volunteers entering any TDSB school to submit a vulnerable sector check.   The CCLA has significant concerns about the breadth of information that police services release on these checks and the growing resort to police record checks in society at large, and significantly, we question the utility of record checks in these circumstances. We have written a letter to TDSB trustees urging them not to pass this policy. You can read the letter here.

These police checks are highly privacy-invasive; they regularly reveal far more than just criminal convictions, and can contain information about police contacts, unproven allegations where charges were not laid, withdrawn charges and acquittals, mental health apprehensions, suicide attempts and 911 calls.  People come into contact with police for many reasons.  Individuals from racialized communities and lower socio-economic households may have more contact with the police simply because of where they live.  After several years of researching this subject, we are now regularly contacted by people who are excluded from learning opportunities, employment, volunteer placements and community engagement because of these police records.  These people are not dangerous, indeed many have never been found guilty of any criminal conduct; they simply have had some form of prior police contact, and are having doors closed as a result.  Many people, including those who have phoned 911 for medical attention or faced false allegations, will simply choose not to participate in their children’s school lives rather than have to disclose this highly personal and private information to school officials.

Second, it is unclear whether there is any real gain to safety achieved through such privacy-invasive checks. We all want to keep children safe, but highly privacy-invasive record checks for anyone who volunteers in a school, regardless of whether they have unsupervised access to children, their level of responsibility or the frequency of their volunteering, in the view of CCLA, is neither a balanced nor practical way to pursue student safety.  In fact, there is no evidence to suggest that wide-spread criminal record checks enhance child safety.  In CCLA’s view, we should be closely supervising untrained volunteers in our schools, regardless of whether they have a police record or not.  What such an expansive policy will almost certainly do is marginalize parents and community members with histories of police contact and mental health issues. These may be the very parents – and children – who our schools should be proactively reaching out to in order to more deeply engage them in school life.

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.

CCLA applauds Ontario police chiefs for leadership on non-conviction records

By on February 26, 2014

For the past 18 months the CCLA has been engaging with members of the Ontario Association for Chiefs of Police, working collaboratively towards changing policing guidelines that presumptively allow for the release of non-conviction records on police records checks.  The release of non-conviction records has been a core issue for CCLA for many years – you can read about our previous work and learn more about why we are advocating for change at http://ccla.org/our-work/public-safety/police-background-checks-and-non-conviction-records/.

We are very pleased to announce that this morning, the OACP Executive approved a motion jointly proposed by the CCLA and OACP representatives to revise Ontario guidelines instituting a presumption against the release of non-conviction records on all levels of police checks.  A narrow, public safety exception will be developed to allow for the release of records where there is a risk to the safety of vulnerable community members.  We applaud the OACP’s leadership on this issue.  Releasing non-conviction records needlessly creates barriers to volunteering, education, employment, housing and community participation for thousands of individuals across the province – we are confident that the new guidelines will eliminate barriers for Ontarians while still protecting public safety.  We are looking forward to continuing cooperative collaboration on this and other policing issues in the future.

The specific recommendations that were endorsed today included short-term goals of engaging in public education on police records checks, revising the LEARN guidelines to insitute a presumption against disclosure of non-conviction records and crafting a narrow and truly exceptional public safety exception for the release of these records. In the long-term, the OACP has endorsed working for provincial change to provide legislative oversight and the implementation an evidence-based, centralized procedure for determining when non-conviction information can be disclosed.

Sukanya Pillay: When it comes to the U.S. border, don’t put trade ahead of privacy

By on January 27, 2014

This op-ed was originally published in The National Post, January 3rd, 2012.

While most media reports (including several in this paper) have focused on the economic gains that will potentially result from the new Beyond the Border agreement recently signed by Canada and the United States, privacy concerns should be paramount in the minds of Canadians.

It has been suggested that the new deal will not compromise privacy any further than is already the case under existing bilateral agreements. This is hardly reassuring. Already, under current regulations, innocent people have been mistakenly added to terror watch lists due to confusion over a shared name or similar address. Some of these people, including Canadian citizens, have found themselves unable to leave the country due to this misidentification, and have suffered personally and professionally as a result. In some cases, they have been able to leave the country, but then not return, leaving them stranded in foreign lands. Some have been detained without charge.

We must do better. The Canadian Civil Liberties Association (CCLA) has concurred with the findings of the Federal Commission of Inquiry into the case of Maher Arar: We believe that intelligence agencies and law enforcement must take every listed legal safeguard to ensure they do not wrongly flag an innocent person, and that they do not share, receive, or otherwise use or condone information that has been procured from torture or serious human rights abuses. Such information is not only unreliable, it is illegal and immoral. Indeed the RCMP and CSIS have agreed that such legal safeguards should be implemented.

And yet, there is no mention in Beyond the Border that such legal safeguards will be adhered to. To the contrary it refers to removing impediments to information sharing between Canadian and U.S. officials.

This brings us to another area of serious concern. How will disputes or differences of opinion regarding who is a threat be resolved between the two countries? There is no clear indication of any mechanism to address differences, even though the CCLA called for such an accounting last June. It raises the serious question of whether Canada will simply toe the line set by U.S. security agencies.

It is true that much of the agreement has yet to be finalized. And it is certainly possible that the eventual finalized agreement will address many of the concerns listed above. But until Canadians can be certain that their government is not putting trade and economic development ahead of privacy and civil rights, they should be wary of embracing any new agreement with the United States, or any other country, that will impact on how their private information is shared among intelligence and police agencies.

The CCLA has joined forces with the American Civil Liberties Union and Privacy International UK to assemble a list of 12 Core Legal Principles that must be adhered to in order for Beyond the Border to properly balance trade and security concerns with the need of Canadians to be certain that their civil rights will be respected. We invite all Canadians, and others, to review these principles, at ccla.org/canada-u-s-security-perimeter.

 

 

 

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.

Cyberbullying is a problem – Bill C-13 is not the answer

By 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.

CCLA Pleased with Supreme Court’s Balancing of Privacy and Free Speech

By 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.

Teach-in on University e-Services Outsourcing to U.S. Corporations

By on November 13, 2013

This Saturday, November 16, 2013, CCLA is co-sponsoring a Teach-in on University e-Services Outsourcing to U.S. Corporations at the University of Toronto.

The extraordinary scope and intensity of NSA surveillance programs have governments and enterprises around the world scrambling to reduce their exposure to rampant state surveillance. Canadian universities’ growing outsourcing of their e-services, particularly to US corporations, have put them on the frontline of the debate on how to respond to the recent Snowden revelations.  Outsourcing of email, calendaring, data sharing and other communications services promises improved functionality and enhanced collaboration features while saving costs. However, it brings new surveillance risks, especially when contracting with companies involved with the NSA’s PRISM program, such as Microsoft and Google.

This teach-in aims to help affected users, and Canadians more generally, understand the issues at stake as well as contribute to better informed decisions around university e-service outsourcing. The one day event seeks to bring together privacy, security, surveillance and outsourcing experts with representatives of various stakeholders in an open and stimulating exchange of views.

The timing and focus of this teach-in is occasioned by the University of Toronto’s proposed outsourcing of staff and faculty email to Microsoft. With the official consultation process nearly completed, a decision on the proposal is expected in the coming weeks.

Please join us in what promises to be a lively and informative event!

WHEN: November 16, 2013  – 9am – 4pm

WHERE: Faculty of Information, 140 St. George Street, University of Toronto

MORE INFO: http://bit.ly/16MzZea

CONTACT: andrew.clement@utoronto.ca

Speakers:

Heidi Bohaker, Department of History, University of Toronto

Caspar Bowden, former Microsoft chief privacy advisor

Robert Cook, Chief Information Officer, University of Toronto

Avner Levin, Privacy and Cyber Crime Institute, Ryerson University

Sukanya Pillay, Canadian Civil Liberties Association (CCLA)

Scott Prudham, President, University of Toronto Faculty Association (UTFA)

Roger Singh, Chief Technology Officer, Scalar Decisions

Paul Tsang/alternate, President, United Steelworkers Local 1998

Jim Turk, Executive Director, Canadian Association of University Teachers (CAUT)

Sponsors:

Faculty of Information, University of Toronto

The New Transparency: Surveillance and Social Sorting

Identity Privacy and Security Institute (IPSI)

Canadian Civil Liberties Association (CCLA)

United Steelworkers Local 1998

Privacy and Cyber Crime Institute, Ryerson University

University of Toronto Faculty Association (UTFA)

Canadian Association of University Teachers (CAUT)

Program:

Coming soon.

Registration:

While the event is open to public and there is no fee for attendance, space may be limited, so we ask that you indicate your intention to participate via the Teach-in’s Facebook page or emailing the organizer

Further information:

For background and opinion regarding UofT’s proposed outsourcing, see my (AC) personal University of Toronto email Outsourcing Project FAQ.

Supreme Court strongly underscores unique privacy interests in computers

By 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