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 October 19, 2012
The Supreme Court today issued its decision in R. v. Cole, strongly affirming that the constitution does extend to protect employees privacy rights at work, and rejecting the government’s assertion that an employer’s consent is all that is necessary for the police to access an employee’s private, personal information.
The CCLA intervened in R. v. Cole to argue that the private, personal information in our communication devices must be protected by the Charter – regardless of whether they are owned personally, or provided through our workplaces. Consistent with the Supreme Court’s decision, CCLA argued that employers should not be able to waive their employee’s privacy rights. Work computers and phones are frequently used for personal projects, phone calls and emails. Absent exigent circumstances, warrantless state access to this sensitive and personal information is an intrusive and extensive interference with the privacy interests enshrined in s. 8 of the Charter.
To read CCLA’s factum click here.
To read the Supreme Court’ decision click here.
The case, which was appealed from the Ontario Court of Appeal, arose when the respondent, a high school teacher, had his school laptop’s hard drive remotely accessed by a computer technician employed by the school. The technician accessed a hidden folder on the respondent’s hard drive to perform a virus scan and discovered nude photographs of a young female student. The images had been e-mailed by the student to another student, which the respondent accessed through the student’s email account in the course of his supervisory duties. The school’s technicians provided a copy of the photographs along with the respondent’s computer to police. The police searched the laptop and browsing history without obtaining a warrant and charged the respondent with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded all the evidence from the laptop on the basis that the respondent’s s. 8 Charter rights were breached. The summary conviction appeal judge overturned the decision on the ground that the teacher had no reasonable expectation of privacy regarding the laptop’s comments. The Ontario Court of Appeal allowed the appeal and excluded evidence from the laptop, as it was obtained by police without first obtaining a proper warrant and thereby violated the respondent’s Charter rights. The Supreme Court agreed that the police actions had violated the respondents Charter right to be free from unreasonable search and seizure. Because the majority found that the lower courts erred when the excluded the evidence under s. 24(2) of the Charter, the appeal was allowed and a new trial has been ordered.
By Abby Deshman
on October 15, 2012
In the 1970s the Canadian parliament put comprehensive provisions on intercepts into the Criminal Code that gave heightened privacy protections when police were applying for a wiretap. On Monday October 15, the Canadian Civil Liberties Association presented arguments before the Supreme Court of Canada to ensure that these privacy protections remain meaningful in an era dominated by cell phones and text messaging.
Over the past few years Telus, the cell phone provider, has received tens of thousands of search warrants, production orders and interception authorizations from police requiring them to hand over customer information and communications. Usually, warrants and production orders require cell phone providers to produce past communications, and interception orders allow for real-time surveillance. In March 2010, however, the police served Telus with a General Warrant and Assistance Order requiring the company to produce all text messages to and from a specific customer over the next 14 days. The police argued that, because Telus stored text messages for 30 days, this was not a wiretap. In practice, however, this type of warrant would give police daily, surreptitious access to all private messages, at times allowing law enforcement to read messages before the that had been received or read by the intended recipient.
The CCLA argued that text messages that are surreptitiously obtained from a cell phone service provider in the midst of the transmission process must be subject to the protections offered to wiretaps in the Criminal Code. As outlined in our Supreme Court arguments, from the standpoint of ordinary Canadians, the key questions and answers in this case seem obvious. Is texting like an oral phone conversation? Yes. If the police obtain your texts from the telephone company who transmits them, is that the same as listening in on your conversation? Yes. Is your expectation of privacy the same? Yes. Should the protection of your privacy be the same? Yes. We hope that the Supreme Court agrees.
To read CCLA’s factum click here.
By Abby Deshman
on October 2, 2012
The Ontario Court of Appeal has released its decisions in R. v. Cuttell and R. v. Ward, key cases concerning the scope of police authority to unmask normally anonymous internet content by linking an IP address to a name and address. CCLA had intervened in both cases to argue that Canadians have a reasonable expectation of privacy in their anonymous internet activity and that the Charter generally required police to obtain a warrant before accessing private subscriber information held by an Internet Service Provider.
An individual’s activities on the Internet can reveal highly personal and intimate information about them, providing considerable insight into the user’s interests, habits, predilections and, by implication, their very thoughts. Gaining access to otherwise private subscriber information pierces the anonymity that is usually supplied by an IP address. This step is the key to gaining access to a vast repository of highly personal information regarding an individual’s online activity. Section 8 of the Charteraffords individuals the right to be free from unreasonable search and seizure. CCLA argued that, in order for the police to gain access to the subscriber information behind an IP address, absent exigent circumstances, they are constitutionally required to request a warrant before obtaining this private information.
The Court found that, on the evidence presented in and circumstances surrounding this case, there was no reasonable expectation of privacy in the customer information that was disclosed and that therefore no warrant was required. Nevertheless, the decision sets out a number of key principles that highlight the importance of privacy and anonymity on the internet. It also makes clear that it does not foreclose the possibility that a warrant may be required under different circumstances, or a different evidentiary record.
The CCLA remains concerned about the implications of permitting police to warrantless unmask anonymous internet activity, and will continue to advocate for stronger protections in this area of the law.
Read CCLA’s submissions to the Ontario Court of Appeal here.
Read the Ontario Court of Appeal’s judgment in Ward here.
on September 27, 2012
The Canadian Civil Liberties Association generally welcomes the decision handed down today by the Supreme Court of Canada in A.B. v. Bragg Communications Inc, a case which raised questions around the open court principle, freedom of expression, and access to justice in the context of a case involving a minor who had been cyber-bullied.
In March 2010, a youth in Nova Scotia, A.B., discovered that someone had created a fake Facebook page purporting to be hers. The bogus profile included her photograph and other identifying details, along with what a judge later called “scandalous sexual commentary of a private and intimate nature.” Shortly thereafter the Facebook page was taken down. A.B., through her litigation guardian, applied for an order requiring the Internet Service Provider (ISP), identified by Facebook as the host of the originating Internet protocol (IP) address, to provide her with the name and address of the person(s) who created the bogus page. In her application, she stated that she wished to discover the identity of the profile creator(s) so that she could pursue a defamation suit against them.
In her application, she also asked the court to conceal her identity by allowing her to proceed by initials, and to ban the republication of the actual words contained in the face Facebook profile. Although the ISP agreed to disclose the information with a court order, two news outlets successfully objected to the other requests as infringing upon the open court principle. The Chambers judge found that there was no evidence before him that A.B. would face serious risk of harm without a total publication ban and anonymity: a requirement of the Dagenais/Mentuck test to limit the primacy of open courts.
A.B. appealed. She argued that a minor should not have to prove that actual harm would occur if the offending material were repeated, or her name made public. Rather, the courts should take judicial notice of the damage suffered by minors in cases like this, and automatically protect their privacy. The Nova Scotia Court of Appeal disagreed and upheld the Chambers judge’s decision. The case was appealed to the Supreme Court of Canada.
CCLA welcomes the Supreme Court’s decision which affirms that an anonymity order is more appropriate than a publication ban in this case for reconciling issues surrounding the open court principle, freedom of expression, privacy, and access to justice. This is consistent with the position CCLA adopted in its submissions. Such a ban protects A.B.’s privacy concerns without concealing details surrounding the case from the public eye. This key information would allow the public access to the speech whose permissibility could be on the line in a defamation case; it would also allow others who may be targeted in a similar way to consider whether the case applies to their situation; and, finally, it could enhance the broader social response to the problem of bullying.
However, CCLA expresses concern about the Supreme Court’s approach to the evidential burden placed upon a party seeking a judicial order that will limit freedom of expression or the press. In particular, the Court’s endorsement of an ‘objectively discernible harm’ standard in the case of minors may have the effect of creating a blanket exemption policy. CCLA intervened to endorse the Dagenais/Mentuck test, which requires the party seeking a judicial order that will limit freedom of expression or the press (such as a publication ban or anonymity order) to provide clear and specific evidence that serious harm would flow from publication of the information which he or she seeks to conceal . In CCLA’s view, this approach protects two important public interests – open courts and access to justice. CCLA also takes the position that any restrictions placed upon freedom of expression and the media are best addressed through a rigorous case by case approach using a high evidentiary standard rather than the use of blanket exemptions.
Iris Fischer and Dustin Kenall, of Blake, Cassels & Graydon LLP, represented the Canadian Civil Liberties Association in this case.
>> Click Here to Read CCLA’s Factum
>> Click Here to Read More About our Intervention
on September 17, 2012
FOR IMMEDIATE RELEASE
New CCLA Report: Police Background Checks That Include Non-Conviction Records Undermine the Presumption of Innocence
Toronto – September 17, 2012 – The Canadian Civil Liberties Association has released a new report entitled Presumption of Guilt? The Disclosure of Non-Conviction Records in Police Background Checks. The report sheds light on the impact of police background checks – which contrary to popular belief frequently disclose a wide range of “non-conviction” information, including withdrawn charges, acquittals or even complaints where charges were never laid. Non-criminal interactions, such as experiences with police due to mental health needs, are also recorded in police databases and may be disclosed on background checks. The report draws from research into retention and disclosure practices in Alberta, as well court cases and research from Ontario and across Canada. The report offers recommendations for best practices that are relevant to police forces across the country.
The report highlights the discrimination that can be faced by people who – in spite of the fact that they have never been convicted of any crime – may be refused employment, volunteer positions or travel permits due to their police record. Many individuals are not aware that this type of information is disclosed in police checks. Moreover, unlike formal criminal records, which are governed by federal legislation, procedures for removing non-conviction information from a background check are often unclear, unfair and convoluted.
“Disclosing this type of sensitive information may undermine the presumption of innocence, which is a cornerstone of a just and fair society, and a right protected by the Charter”, said Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association. “Employers who receive negative records checks may not fully understand the distinctions between different types of police information, creating a significant risk that non-conviction records will be misconstrued as a clear indication of criminal conduct. “
“The scope of this issue is enormous,” she added. “During the G20 weekend in Toronto over a thousand individuals were arrested – many of whom were fingerprinted and photographed. Several hundred were charged with various crimes, only to have the charges withdrawn in the overwhelming majority of cases. Just last week hundreds of individuals charged following mass arrests during Quebec protests had all their charges withdrawn. These are the types of interactions that are being recorded in police databases and can show up in police background checks.”
The Canadian Civil Liberties Association was also joined by spokespersons from the John Howard Society of Ontario and the Canadian Association of Elizabeth Fry Societies. Both organizations highlighted the significant impact non-conviction records had on the lives of individuals and stressed the need to reform the practice of including non-conviction records in police background checks. Jacqueline Tasca, Policy Analyst with JHSO, said “Ontarians who have non-conviction police records deserve equal access to employment, housing, and social services without fear of discrimination or stigma. We commend CCLA for addressing this important topic in their report. The discussion around the disclosure of non-conviction information is long overdue. The time for pursuing real solutions has come.”
Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies added, “Many marginalized and vulnerable people, especially those with mental health issues, frequently come into contact with police. Police contact that does not relate to criminal activities that result in convictions should not be disclosed through police background checks. The risk of stigmatization and undue discrimination is too high.”
Sean Dewart, a litigation lawyer from Dewart Gleason LLP in Toronto, also released a statement: “The indiscriminate use of non-conviction records by police agencies causes significant harm. In 1996, one of our clients attempted suicide and someone called 911 to seek assistance for her. Unbeknownst to her, the Toronto Police gave this highly personal information, which had nothing to do with law enforcement or crime prevention to CPIC, which then shared it with US Homeland Security. Four years later, a border guard blocked her from visiting her family in the US because of her mental health history. There is no justification for the ever-increasing Kafkaesque use of records like this, and the dissemination of allegations that have never been proven in court, or that courts have rejected. We support the CCLA’s efforts to raise awareness about and shed light on this troubling issue.”
The 47 page report is available in PDF format on CCLA’s website. Hard copies can be obtained for $15 by writing to email@example.com (subject line: Non-Conviction Records Report).
Penelope Chester – firstname.lastname@example.org or 416-363-0321 ext. 225 (o) or 647-822-8764 (c)
About the Canadian Civil Liberties Association: The Canadian Civil Liberties Association (CCLA) is a national organization founded in 1964, dedicated to promoting respect for and observance of fundamental human rights and civil liberties. Its work, which includes research, public education and advocacy, aims to defend and ensure the protection and full exercise of those rights and liberties.
About the Canadian Association of Elizabeth Fry Societies: CAEFS is an association of self-governing, community-based Elizabeth Fry Societies that work with and for women and girls in the justice system, particularly those who are, or may be, criminalized. Together, Elizabeth Fry Societies develop and advocate the beliefs, principles and positions that guide CAEFS. The association exists to ensure substantive equality in the delivery and development of services and programs through public education, research, legislative and administrative reform, regionally, nationally and internationally.
About the John Howard Society of Ontario: The John Howard Society of Ontario is an organization of citizens who accept responsibility for understanding and dealing with the problems of crime and the criminal justice system. The John Howard Society of Ontario provides support for the effective integration into the community of those in conflict with the law or criminal justice system, promotes changes in the law and administration of justice which will lead to the more humane and effective treatment of individuals. The Society also strives to promote citizen awareness of the problems of crime and its causes, and acceptance of responsibility to respond to these problems and involvement in the delivery and management of justice related programs.
By Abby Deshman
on September 6, 2012
On Friday September 7, 2012 the Ontario Court of Appeal will consider the case of R. v. Fearon, which will examine whether the police need to get a warrant before searching an arrested person’s cell phone. Generally, the police do not need a warrant to search a person who 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.
The CCLA will appear before the Court to argue 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. This would not be the first time a court has carved out an exception to the police power to search upon arrest. The Supreme Court of Canada has ruled that automatically authorizing searches upon arrest in other privacy-invasive contexts such as strip searches or taking DNA samples would violate our constitutional right to be free from unreasonable search and seizure. The vast, detailed, intensely personal information that 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 – lets use them.
To read CCLA’s factum click here.
By Sukanya Pillay
on June 29, 2012
Canada and the U.S. have released the long-awaited privacy principles that will govern information sharing between the two countries, pursuant to the Canada-U.S. Security Perimeter agreement.
Entitled the “Statement of Privacy Principles by the United States and Canada” (“Canada-U.S. Statement”), the principles do incorporate some but not all of the safeguards CCLA has raised. We are pleased to see that the government did include principles outlined in CCLA’s submissions, but remain concerned about omissions in the statement.
Six months ago, CCLA released its own “12 Core Legal Principles” to apply to privacy, which we drafted with the ACLU and Privacy International (UK) – and we note that points CCLA recommended such as purpose specification, necessity, proportionality, redress, equality and non-discrimination, individual access and rectification, transparence and redress , and compliance with international legal standards, are included in the Statement.
However, CCLA had suggested that protection for Canadians required that Canadian law apply to the treatment of Canadians, and their personal information, and that the highest standard of privacy protection be afforded to both Canadians and Americans. This requirement has been omitted and the general reference to to compliance with “domestic laws” may permit the lowest standard between the two countries to prevail.
CCLA is also concerned about the treatment of Canadians under American law that does not always provide similar treatment for non-citizens. In addition, the Canada-U.S. statement also envisions information sharing with third countries. CCLA has long understood the need for North American and overseas information sharing, but we have argued it must be done in compliance with the safeguards contained in the Canadian Charter of Rights and Freedoms and the highest international legal standards. However, the Canada-U.S. Statement allows the U.S. to share information received from Canada, with foreign countries, according to U.S. domestic standards – CCLA remains concerned that these standards may fall short of the safeguards contained in our Charter, in particular that they may be shared with countries that practice torture.
The Statement also permits limited access to personal information in compliance with existing domestic law – CCLA has argued for due process protections that would allow an individual who is adversely affected to access and challenge the evidence against them. This is not included in the Statement.
CCLA has also argued that any surveillance must be lawful, must be individually targeted, based upon individualized suspicion of wrongdoing, and subject to judicial oversight; and any information ‘dossiers’ collected must not be based on an individual’s exercise of their rights to freedom of expression or religion. This point is not addressed in the Canada-U.S. Statement.
CCLA also argued that steps must be taken to ensure that domestic law enforcement can never use foreign law enforcement to circumvent legal safeguards that apply to the domestic agency. A law enforcement agency must not carry out surveillance on one country’s citizens on behalf of another country’s law enforcement agencies in circumstances where those agencies are prohibited from carrying out such surveillance on their own. This point is not addressed in the Canada-U.S.Statement, but will require clarification.
Finally, we note the Canada-U.S.Statement also specifies that it is not intended to create any new rights under domestic laws and is not a treaty – in other words, it does not create any legally enforceable rights. The implications are therefore unclear as to its impact, if the provisions of the Statement are not fully complied with.
For information on principles put forward by Canadian civil liberties groups, entitled “Statement of Principles on the Canada-US Perimeter Security and Economic Competitiveness Agreement” please click here http://ccla.org/canada-u-s-security-perimeter/.
CCLA will continue to analyze the Canada-U.S. Statement and we will keep you posted.
By Abby Deshman
on June 21, 2012
On June 21, 2012 the Ontario Court of Appeal released its decision in J.N. v. Durham Regional Police Service, 2012 ONCA 428. CCLA, which intervened in the case, was hoping that the Court would take the opportunity to pronounce on the procedural protections and constitutional rights owed to individuals with non-conviction records that are retained and disclosed by local police forces. Unfortunately, the Court did not decide on the substantive legal issues, ruling instead that the lower court did not have jurisdiction over the case and a different court process was required to challenge the police decision to retain JN’s non-conviction record.
CCLA will continue to advocate strongly on this issue. Police run hundreds of thousands record checks every year. Most of these checks are used to inform employment and volunteer hiring decisions. They are also frequently performed in connection with adoptions, foster care applications and travel. Contrary to popular belief, however, the information that is revealed in these background checks is not limited to criminal convictions. A wide range of “non-conviction” records can be disclosed, including information about criminal charges that were withdrawn, cases an individual was found not guilty, or even complaints where charges were never laid. Even non-criminal interactions, such as experiences with police due to mental health needs, are recorded in police databases and may show up on background checks.
Across Canada individuals who have never been found guilty of any offence are prejudiced by these non-conviction records. Disclosing this type of sensitive information may undermine the presumption of innocence. Employers who receive ‘negative’ records checks may not fully understand the distinctions between different types of police information, creating a significant risk that non-conviction records will be misconstrued as a clear indication of criminal conduct. In the case of mental health records, this information may lead to illegal discrimination against those with mental disabilities.
Background of the J.N. case
In the case before the Ontario Court of Appeal, J.N. challenged the Durham Regional Police Service’s refusal to remove a withdrawn charge from her background check. J.N. is a woman in her 50s who, in 2006, was involved with in a family dispute involving her ill, 91-year-old father. A complaint was made and eventually J.N. was charged with assault. The charge was withdrawn before trial. A few years later J.N. applied for a media relations position in a school board. In order to be hired she was required to provide a Vulnerable Sector Background Check from her local police station. Although she had never been found guilty of any crime, the police report came back showing the 2006 assault charge. J.N. requested the charge be removed, but her request was denied without explanation. The lower court found that J.N.’s procedural rights had been violated. The Durham Regional Police Service had appealed that ruling.
To read the Ontario Court of Appeal’s decision click here.
To read the CCLA’s factum before the Court of appeal click here.
To read the lower court’s decision click here.
By Abby Deshman
on May 14, 2012
The CCLA will appear before the Supreme Court to argue that the private, personal information in our communication devices must be protected by the Charter – regardless of whether they are owned personally, or provided through our workplaces.
In R. v. Cole the Court will examine whether an individual whose work computer may be accessed by the employer for maintenance purposes still has a reasonable expectation of privacy regarding the information on the computer. If the Supreme Court finds that an employee does not have a reasonable expectation of privacy in a work computer, phone, or other communication device, an employer will be able to unilaterally decide when to respect individual employee privacy and when to hand all an employee’s information over to the police.
CCLA will argue that employers should not be able to waive their employee’s privacy rights. Work computers and phones are frequently used for personal projects, phone calls and emails. Absent exigent circumstances, warrantless state access to this sensitive and personal information is an intrusive and extensive interference with the privacy interests enshrined in s. 8 of the Charter.
To read CCLA’s factum click here
The case, on appeal from the Ontario Court of Appeal, arose when the respondent, a high school teacher, had his school laptop’s hard drive remotely accessed by a computer technician employed by the school. The technician accessed a hidden folder on the respondent’s hard drive to perform a virus scan and discovered nude photographs of a young female student. The images had been e-mailed by the student to another student, which the respondent accessed through the student’s email account in the course of his supervisory duties. The school’s technicians provided a copy of the photographs along with the respondent’s computer to police. The police searched the laptop and browsing history without obtaining a warrant and charged the respondent with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded all the evidence from the laptop on the basis that the respondent’s s. 8 Charter rights were breached. The summary conviction appeal judge overturned the decision on the ground that the teacher had no reasonable expectation of privacy regarding the laptop’s comments. The Ontario Court of Appeal allowed the appeal and excluded evidence from the laptop, as it was obtained by police without first obtaining a proper warrant and thereby violated the respondent’s Charter rights.
By Abby Deshman
on April 19, 2012
The Canadian Civil Liberties Association is appearing before the Ontario legislature’s Standing Committee on Justice Policy to make submissions on Bill 34, the Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act. The Bill contains the long-awaited repeal of the Public Works Protection Act and CCLA applauds the government’s commitment to passing targeted legislation that specifically addresses the identified security needs of court houses and power generation facilities.
The Association, however, continues to have concerns regarding Bill 34’s courthouse security provisions. The open court principle is essential to the maintenance of a fair and functional justice system and must be a central consideration when planning courthouse security. Moreover, the conferral and exercise of police powers, including the right to demand information or search a person or place, engages s. 8 of the Canadian Charter of Rights and Freedoms and must be fully justified with reference to context-specific security needs. Security measures must also provide reasonable accommodations to disparately impacted minorities in order to comply with other Charter guarantees such as freedom of religion. The powers provided for in Bill 34, which include the ability to demand identification, search vehicles, and make inquiries of individuals entering or inside courthouses to determine if they are ‘security threats’, are neither reasonable nor justifiable.
An examination of the legislative framework governing court security in other Canadian jurisdictions shows that the powers proposed in Bill 34 drastically exceed what other provinces and territories have considered necessary. These examples should be carefully studied, as each provides a model of significantly more tailored approach to this issue.
CCLA will appear before the Committee to strongly urge amendments to amend Bill 34 that would provide tightly constrained powers that are responsive to the demonstrated, everyday security needs of courthouses. Specifically, the Committee should:
- Completely strike the power to demand general information, identification and search vehicles.
- Authorize personal searches only for the purpose of enforcing a prohibition on weapons in the courthouse.
- Restrict the exercise of any random search power so it applies only upon entry into a courthouse.
- Specifically prescribe the manner in which these general, suspicionless searches may take place to ensure they are not overly intrusive and are truly random.
- Require an officer have reasonable grounds to believe an individual has a weapon before demanding that individuals already on court premises return to the entrance to be re-screened.
- Incorporate measures allowing judges, security officials and any other appropriate authorities to reasonably accommodate individuals or groups by issuing exemptions from general security requirements.
To read CCLA’s full brief click here.