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.
By Abby Deshman
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.
By Peter Goffin
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.
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 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 Dora Chan
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!
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)
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)
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
For background and opinion regarding UofT’s proposed outsourcing, see my (AC) personal University of Toronto email Outsourcing Project FAQ.
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 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 Peter Goffin
on September 6, 2013
This morning, US politics, culture and news site Salon.com published an article titled “5 techniques for maintaining Web confidentiality.”
Web users have lost control over who sees their information, the piece argues. That’s because companies like Facebook, Google, and Microsoft are trading their users’ data for advertising revenue.
What the piece doesn’t mention is that, in addition to being collected by corporations, web user data is gathered by government agencies as well. It appears that the Communications Security Establishment Canada (CSEC) has been conducting mass surveillance of citizens’ personal information, without disclosing the full nature of this program to the public.
CCLA is committed to protecting your online privacy. Check out our backgrounder on Unlawful Access to learn more.
And, for more techniques that protect your online information, come to the 2013 RightsWatch Conference, which will include a showcase of hands-on tools and projects designed to protect web user privacy and enable freedom of expression.
Register for the conference at https://secure.commonground.convio.com/canadiancivilliberties/rightswatch2013/.