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 July 16, 2014
The Canadian Civil Liberties Association applauds today’s release of revised police record check guidelines for Ontario.
The revised guidelines are the result of two years of collaboration and dialogue between the CCLA and the Ontario Association of Chiefs of Police (OACP), including significant evidentiary research and community consultation. In CCLA’s view, the guidelines, which eliminate the disclosure of police contact and drastically restrict the disclosure of non-conviction records, constitute a major step forward in the effort to make Ontario’s record check system fairer and more just.
“Police record checks, and in particular the release of unproven allegations or mental health information, has been a priority issue for the CCLA for several years,” said Sukanya Pillay, CCLA General Counsel. “An increasing number of Canadian organizations – employers, volunteer managers, educational institutions, licensing bodies and governments – are incorporating police record checks into their hiring and management practices. These record checks frequently disclose information well beyond criminal convictions; depending on the police service, mental health apprehensions, records of suicide attempts, complaints where charges were never laid, withdrawn charges, acquittals. As a result of unnecessary record checks and disclosure of non-conviction information, individuals across Canada are losing jobs, educational opportunities, volunteer placements, and are withdrawing from full participation in society.”
The CCLA has now published two reports on police record checks. Our most recent report, released in May 2014 report and entitled False promises, hidden costs: the case for reframing employment and volunteer police record check practices in Canada, is available at www.ccla.org/recordchecks/.
“Our recent report questioned the value of widespread police record checks and shone a light on the damaging individual and societal consequences of Ontario’s record check practices,” said Abby Deshman, CCLA Program Director and primary report author. “In it we outlined a series of short- and long-term recommendations aimed at reintroducing perspective, balance and fairness to police record checks. The changes introduced today by the OACP follow CCLA’s recommendations for police services. We applaud the OACP for their strong leadership and action in this area.”
“While this is a major step forward and an accomplishment to be celebrated, there is more work to be done. Individual police services must choose to adopt these best practice guidelines. Private and public sector employers and volunteer organizations must critically reflect on why they are requesting this information, and in CCLA’s view dramatically reduce the demand for record checks. Ultimately, we believe that legislative change – and a centralized screening agency for vulnerable sector checks – is necessary to ensure consistent, fair treatment and we have called on the provincial government to take action.”
By Cara Zwibel
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.
By Cara Zwibel
on June 6, 2014
On June 5, 2014 CCLA appeared before the House of Commons Standing Committee on Justice and Human Rights as part of its consideration on Bill C-13, the government’s so-called cyberbullying legislation. Other than creating a new offence to deal with the non-consensual distribution of intimate images, the Bill has very little to do with cyberbullying. It includes a number of new investigative powers available to police and other public officers that may be applied to all offences. CCLA has a number of concerns about the Bill and highlighted these concerns in its testimony. In particular, CCLA believes the new offence (non-consensual distribution of intimate images) may be addressing a gap in the current law, but is draft in a way that is overly broad and unreasonably restricts freedom of expression. CCLA also takes issue with a number of the new investigative powers, some of which allow access to a detailed profile of an individual’s activities on the low standard of “reasonable grounds to suspect”. In addition, the powers do not come with appropriate accountability and transparency mechanisms.
Read the notes from CCLA’s presentation before the Committee.
Read CCLA’s written submissions to the Committee.
Watch the Committee’s meeting from June 5, 2014.
By Cara Zwibel
on May 29, 2014
Prime Minister Harper announced his nomination of Daniel Therrien as the next Privacy Commissioner of Canada. Mr. Therrien is currently serving as the Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice and the appointment will have to be approved by resolution of the House of Commons and Senate. The nomination will also be referred for consideration to the appropriate Standing Committee.
The importance of privacy issues in Canada is increasing exponentially and the Privacy Commissioner plays a vital role in safeguarding the privacy of Canadians. CCLA believes that any candidate for this important post must have a long-standing dedication to the protection of privacy as well as a firm and demonstrated commitment to the rights and freedoms enshrined in the Canadian Charter of Rights and Freedoms. A new Privacy Commissioner must have a demonstrated understanding of the full scope of privacy rights in the digital age as well as a demonstrated willingness to act to protect these rights. In addition, it should be made clear what steps can and will be taken in the event that any conflicts arise as a result of former positions held by an individual in the post of Privacy Commissioner. To the extent any past work might conflict with or hinder the ability of the Privacy Commissioner to fulfill his/her role, this must be addressed. The process considering the appointment of a new Privacy Commissioner must bear all of these factors in mind.
By Abby Deshman
on May 21, 2014
Recently the Canadian Civil Liberties Association wrote to Northern Secondary School outlining the organization’s concerns with the school’s plans to make every student entering the prom undergo a Breathalyzer test. On Tuesday, May 20th, CCLA-cooperating pro bono lawyers filed an application in the Ontario Superior Court of Justice requesting a declaration that the proposed policy violates students’ constitutional rights. The applicants are two students currently enrolled at the school.
Read a copy of the Notice of Application.
By Cara Zwibel
on May 21, 2014
Click here to read the Toronto Star‘s front page coverage of CCLA’s challenge.
CCLA is bringing an Application in Ontario’s Superior Court of Justice to challenge parts of Canada’s federal private-sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA). This is the law that regulates how personal information is collected, used and disclosed by private commercial organizations. It is part of the scheme that has allowed government institutions to access personal information from telecommunications companies and internet service providers on a massive scale, and CCLA believes the law is overly broad and violates fundamental rights.
Why is CCLA bringing a lawsuit to challenge PIPEDA?
CCLA believes that our current privacy legislation, PIPEDA, has not kept pace with modern technology, because it enables too much information sharing by the private sector to government, and that it may have significant and adverse impacts on people’s lives. Information gathered by the government may be used for the purposes of investigating and laying criminal charges and may also be shared with foreign governments. Once this information is shared with governments outside of Canada, we effectively lose control over how and why it is used. Furthermore, the current provisions may allow government to do an end run around warrant requirements.
CCLA’s lawsuit aims to strike down some provisions of the privacy legislation so that the law can be changed in a manner that is more protective of individual rights and freedoms.
When can my telecommunications or internet service provider hand my personal information over to government?
The general rule is that your information cannot be disclosed to others without you knowing about it and giving your consent. However, there are some big exceptions to this rule. Provisions of PIPEDA allow information to be disclosed to a government institution (including law enforcement agencies) for purposes of national security and the enforcement of any law of Canada, any province or a foreign jurisdiction. Law enforcement agencies are relying heavily on private corporations like telecom companies and internet service providers to gather information about Canadians and are frequently doing so without judicial oversight and with little transparency or accountability. In light of recent revelations that government institutions requested personal information from telecommunications providers over 1 million times in a one year period, CCLA is standing up for the privacy rights of Canadians and challenging these laws.
Does the government need a warrant to get this information?
A warrant or court order is usually necessary before law enforcement agencies can obtain access to personal information in the hands of an organization. However, law enforcement and telecommunications providers have taken the position that basic subscriber information (customer name and address) is not private and that a warrant is therefore unnecessary.
While the information usually found in a phonebook is likely not considered confidential or sensitive, associating a name and address with an individual Internet protocol (IP) address, may reveal many intimate details about an individual’s online activities and about them personally. It remains unclear precisely what information is being handed over by telecommunications and internet service providers to government institutions, absent a warrant, but CCLA is concerned about the massive scale of the information exchange and has decided to take action.
By Abby Deshman
on May 17, 2014
The Canadian Civil Liberties Association (CCLA) has released a report, False promises, hidden costs: the case for reframing employment and volunteer police record check practices in Canada, questioning the value of widespread police record checks and shining a light on the damaging individual and societal consequences of current practices.
An increasing number of Canadian organizations – employers, volunteer managers, educational institutions, licensing bodies and governments -incorporate police record checks into their hiring and management practices. Police forces across the country run millions of record checks per year, and disclose information that goes far beyond convictions and formal findings of guilt. A wide range of non-conviction information – including records of suicide attempts, complaints where charges were never laid, withdrawn charges and acquittals – is regularly disclosed on Canadian police record checks. New audio recordings documenting numerous individuals’ personal experiences of discrimination and exclusion are also being released today.
The report outlines a series of short- and long-term recommendations to provincial, territorial and federal governments; police services and police service boards; to business and non-profit organizations; third-party record check companies; and privacy commissioners, and human rights tribunals and commissions, aimed at reintroducing perspective and balance to the societal use of police record checks.
Take action on non-conviction record disclosure. Visit our website to read the full report; listen to first-hand testimony of Canadians impacted by non-conviction record checks; download a template to help you write to your local police service; and sign CCLA’s petition calling for human rights and privacy protection for employees, legislative prohibitions on the disclosure of non-conviction information, and a centralized screening mechanism for the vulnerable sector.
On Tuesday, May 20, at 12 p.m., CCLA will host a discussion of False promises, hidden costs, at our offices (215 Spadina Ave., Suite 210, Toronto, ON), featuring Abby Deshman and CCLA General Counsel Sukanya Pillay. Media and the public are invited to attend and ask questions about non-conviction record disclosure and the report. Also speaking at the event will be John Howard Society of Ontario (JHSO) Centre of Research, Policy & Program Development Director Michelle Keast. JHSO has released its own report, Help Wanted*: Reducing Barriers for Ontario’s Youth with Police Records, from the John Howard Society of Ontario’s Centre of Research, Policy & Program Development, which exposes the systemic exclusion of youth (15-29) with police records from the Ontario labour market.
By Abby Deshman
on May 15, 2014
On Friday May 9th the Canadian Civil Liberties Association wrote to the principal at Northern Secondary School, objecting to a proposed policy that would make all students submit to a Breathalyzer test in order to enter prom. While school authorities do have an obligation to provide a safe and secure learning environment, they also have obligations to respect the constitutional rights of their students, including the right to be free from unreasonable search and seizure. The CCLA believes that these searches, which would be based on generalized suspicion and not individualized observations of particular students, would be unconstitutional.
Read the letter from CCLA here.
Read an article by CCLA Education Director Danielle McLaughlin on why prom is no place for a breathalyzer.
By Abby Deshman
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.
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.