If you are interested in being a guest blogger, please write a 500 word piece on a local or national civil liberties issue involving COVID and submit it for review here. Please note we will only be in contact with you if we decide to publish on our website.
By David Sweanor, Guest Blogger
Hundreds of epidemics have afflicted humankind. Few rivaled smallpox, which was easily spread and often killed over a quarter of those infected. One of the reasons it took so long to eradicate smallpox is that some authorities resorted to repressive and discriminatory measures that led to public opposition and even riots. Perhaps that history should inform our city’s approach to covid-19.
When faced with a pandemic, we are truly all in it together. Each of us is part of the response team. Everything from helping neighbours to donating time or money is an opportunity to build the social cohesion and trust essential to a thriving, healthy city.
In public health, we often talk about the need to empower rather than punish people, to understand their lived experience and to ‘meet them where they are’. But, as was seen with efforts to contain smallpox, there is a tendency among some leaders to choose authoritarian and coercive measures. These typically harm the most socially disadvantaged groups and do little to prevent disease. In the case of smallpox, authorities enforced the quarantine and vaccination of people arriving in the steerage class on ships—while leaving first-class passengers free to disembark. Today’s equivalent is unnecessarily limiting access to fresh air and exercise for Ottawa’s less advantaged populations.
That is how we lose public support when we need it most.
Take a moment to reflect on the fact that use of our abundance of public parks is now largely banned. If you are not living in a cramped apartment, possibly with young children, imagine those who are. To quote from our city’s State of Emergency declaration: “Walking through a park to reach your destination or for exercise is permitted provided you do not linger or gather with others, play or undertake any other activity.”
Do the people drafting and enforcing such rules truly think that ‘any other activity’ than just walking through a park is a threat to our collective wellbeing? That we should be outraged over a senior doing tai chi at dawn in an otherwise empty park? That throwing a stick for a dog or playing with a child, getting some air and working off some energy after being cooped up all day, is such a threat to our collective health as to require heavy-handed intervention from enforcement officers? Apparently yes.
The draconian ‘just stay home’ message is not just unnecessarily authoritarian, but an affront to those who lack a safe and healthy place to call home. It also ignores the fact that viruses spread far more easily in enclosed, crowded conditions. And that fresh air and exercise are critical for both physical and mental health.
The message should be one of physical distancing. The public understands it and it is easily socially enforced when outdoors.
It‘s not just that it’s difficult to stop people from heading outside as good weather finally arrives. It’s that we should be encouraging it. Turn activity into a positive message. Empower people. Seek community input on great physical distancing activities. Let’s see people juggling, admiring blossoms, teaching kids to ride bikes, smiling at neighbours. Officials should shift from telling people to stay home to opening up enough space that everyone who wants to go outside can do so safely. If that means shutting down more roads to cars (as we have now seen on the Queen Elizabeth Driveway), cutting speed limits, and opening up green spaces, so much the better. Closing parks lacks an evidentiary basis, is counterproductive, and will undermine support for measures that truly are important in preventing the spread of covid-19.
This pandemic looks like a long slog, but we can turn it into one that builds trust and social capital. We can come out of it a stronger, healthier city.
David Sweanor is a co-founder of the Healthy Transportation Coalition, an Adjunct Professor of Law and Chair of the Advisory Board of the Centre for Health Law, Policy and Ethics at the University of Ottawa, part of the Global Leadership Council of the Boston University School of Public Health, and has worked on public health policy globally since 1983.
This piece was first published on Healthy Transportation Coalition.
Cara Zwibel, Canadian Civil Liberties Association
For comments, please email: email@example.com
The Ontario Court of Appeal has handed down an important decision in a case that grew out of the protests during the Toronto G20 summit in June 2010. The case deals with fundamental questions about the right to protest and police powers. The Court of Appeal’s unanimous decision is an important victory, although the fact that it came close to ten years after the incident that spurred it shows just how hard it can be to have basic rights protected and vindicated by our courts.
In Stewart v. Toronto Police Services Board, the Court considered a claim brought by Luke Stewart, an activist who went to Allen Gardens park in Toronto for a rally that would be followed by a protest march through Toronto’s city streets. The police had decided to establish a perimeter around the park and require everyone entering with a bag or backpack to submit to a search. Those who refused were told they could not enter and were turned away.
Mr. Stewart would not consent to the search – he entered the park despite the instructions of the police and was then detained, had his bag searched, his swimming goggles seized (on the basis that they might be used to defeat police tactics such as tear gas) and was then released and allowed to enter the park and join the rally. Mr. Stewart sued the police, arguing that they had no right to require a search and claiming violations of his Charter rights, namely freedom of expression (s. 2(b)), the right to be free from arbitrary arrest and detention (s.9), and the right to be free from unreasonable search and seizure (s. 8).
CCLA intervened in the case to argue that Mr. Stewart’s rights had been unreasonably limited and that the police did not have the power to require that he consent to a search as a condition of entering a public park. The judge that initially heard the case decided that the police had acted lawfully and rejected Mr. Stewart’s claims. Despite the significant risks and costs involved, Mr. Stewart appealed. Once again, the CCLA intervened to argue that fundamental rights had been violated and should be vindicated.
We are pleased with the Ontario Court of Appeal’s decision, which found that the police had no legal authority to make a search a condition of entry to the park. The police had relied in part on the Trespass to Property Act and a letter given to them by the City of Toronto that allowed them to enforce that law. But the Court of Appeal found that the City had not established any rules that said you had to consent to a search before entering a park and it was not up to the Toronto Police to make these rules up themselves. Since the condition of entry had no basis in law, Mr. Stewart’s rights were unjustifiably violated. In the circumstances, the Court decided that only a modest damage award was appropriate. He was awarded $500 in recognition of the violation of his rights and to deter the police from similar violations in the future.
The Court’s legal decision is an important one, but the case’s trajectory through the courts shows how difficult it can be to have rights vindicated and to hold the police accountable for actions that violate the Charter. People who have their rights violated by the police often have few incentives to pursue legal action – the investment of time and resources (particularly money) are significant, and there may be little payoff. In Mr. Stewart’s case, while his decision to pursue the case resulted in a good decision that can benefit others, his ten year investment in the case may be hard to square with the relatively small damage award he received. CCLA is grateful to people like Mr. Stewart who pursue their rights before the Courts, and we thank Torys LLP lawyers Winston Gee and Sarah Whitmore for their excellent pro bono assistance on this file.
Cara Zwibel is the Director, Fundamental Freedoms Program at the Canadian Civil Liberties Association. As counsel, she has appeared before, and clerked at, the Supreme Court of Canada.
The pursuit of the truth today is not an academic or recreational exercise – we want to know if it’s okay to go get groceries during a pandemic. But nobody has a monopoly over the truth. Out of the chaos, curating and distancing social media may become the new normal for consumers of information.
At a time when accurate information is so important, it is worth thinking about the tools that are available to us and how we can all go about ensuring we stay informed. So many of us get information through our social media connections, but how much should we rely on these connections when it comes to information that is so crucial to our health and safety? Social media is an important tool for connecting, particularly in times when we are forced to be apart. But using it as our primary or only source of accurate news information – particularly in a public health crisis that is evolving at warp speed – may be risky.
Increasingly, large platforms are taking steps to fact check and deal with misinformation. A group of the largest tech companies, including Google, Facebook, Twitter and Microsoft recently released a joint statement saying they are working closely together on COVID-19 response efforts. Part of this work includes “combating fraud and misinformation about the virus” and “elevating authoritative content on our platforms”. While this statement came out on March 16, the very next day there were widespread reports of legitimate content being flagged and removed as spam on Facebook. The company has acknowledged that this occurred, citing a “bug” in their anti-spam system that they are working on fixing. We should not be surprised that algorithms are imperfect – indeed, large tech companies have acknowledged that increased reliance on machine learning and artificial intelligence is likely to mean that some mistakes will be made in assessing what content is legitimate and what is not. What the current environment serves to highlight is the increasingly significant role that these private companies play in how we access and consume information. It also makes plain some of the challenges and costs associated with using algorithms to moderate and, in some cases, censor, expressive content.
While these companies must be accountable for their actions, for the time being, the priority should be on taking steps to keep ourselves well informed.
Here are a few tips to consider in your quest for good information during a public health crisis:
Finally, since many of us are stuck at home with bored children, why not take this opportunity to teach them about the importance of media literacy? Media Smarts has some excellent resources for young people, including games and videos.
Brenda McPhail, PhD, Canadian Civil Liberties Association
Technology can be used as a tool to support human health and dignity, or to erode our values and our rights. We have to choose, and our choices need to be justifiable not just during, but after the panic has subsided. Privacy might seem like the least of our worries in the midst of a global pandemic.
But it is precisely when we’re afraid that we might be inclined to offer up the rights we normally hold dear in exchange for safety—or even just feeling safer, which is not the same thing. Rights to liberty in times of quarantine, rights to mobility in times of travel restrictions, and rights to equality when emergency measures affect some more than others, all must be carefully watched and of course, CCLA is on guard to ensure our governments continue on the path of careful, constrained, and minimal restrictions when taking emergency measures. But these Charter rights all have something in common. Liberty, mobility, and equality are all universally acknowledged as so fundamental that when the emergency is over, when the crisis is contained, there’s relatively little question they will be unhesitatingly restored or that there will be hell to pay if they are not.
I worry that privacy isn’t always appropriately recognized as being in that same category. Not because it isn’t fundamental, in fact, it is an internationally recognized human right on its own, and a threshold right that is at the core of liberty and facilitates equality. But privacy is also right that we are actively, albeit incorrectly, told by businesses and law enforcement bodies alike that we might want to trade away. We are habituated into swapping privacy for convenience—I want to know how far I biked so I’ll let an app report my exercise activity to Google—or even convinced it is for our own benefit—I want a safe neighborhood so maybe it won’t hurt to let police check out the data from my Amazon Ring doorbell.
This means that we must be particularly alert to privacy erosions in times of emergency that may shift the social license for such intrusions after the crisis has passed.
Let’s be clear. Timely, detailed and accurate information is absolutely essential for effective public health interventions. We’re sometimes inclined to think of the word “surveillance” as always bad, but of course it is not. When it comes to disease tracking, there is a long and necessary practice of surveillance of infectious disease, which is acknowledged by epidemiologists and public health bodies as core to the ability to design, deliver, and evaluate public health activities. Just as we understand that the employment of lifeguards to surveil us at a public swimming pool mitigates the risk of someone drowning, we know the employment of good disease surveillance practices can support the development of evidence-based risk mitigation strategies. Furthermore, the transparency of information about the progression of disease in times of pandemic is important for public education, and our ability to trust in the decisions of our public health agencies is fostered if we can see the data they’re basing their decisions on and know they are acting based on science and evidence.
The trick, of course, is ensuring that we find ways to get the necessary information that are proportionate and minimally intrusive for the humans whose health is at the core of the data collection efforts —even if the proportionality analysis may look a little different during a pandemic.
In the big data age, there are already examples outside of Canada of governments looking to leverage pools of existing data about people, including location information that so many of our networked devices, particularly the phones most of us carry everywhere we go, collect. Israel has approved emergency measures allowing its security agencies to track individuals identified as possibly ill with COVID-19 using phone-based location information obtained from telecommunications companies, and is using it to determine their compliance with quarantine orders, as well as to figure out who else people may have been in contact with who are then at risk of infection. The temporary laws allowing this to happen were passed in the middle of the night, without parliamentary approval. In the US, the Wall Street Journal reports conversations between the US Government and tech companies Palantir (the company that helps the US Department of Homeland Security conduct their immigration screening and workplace raids) and Clearview AI (which has been served cease and desist letters by most major social media platforms for scraping billions of images from their sites and using them in their facial recognition application marketed to police) about potential screening tools. Taiwan, meanwhile, is crediting intensive data linking between immigration and customs data bases with their national health insurance database, which allowed real time alerts during clinical visits, and mobile phone tracking to enforce quarantines for travelers, with helping them keep infection rates low.
The examples above might sound reasonable or creepy to you, and each is problematic in different ways when it comes to rights and democratic accountability. The bottom line is, while it’s important not to indulge in a knee jerk reaction against leveraging data and technology to surveil disease and more specifically, humans who carry or are at risk of disease, data isn’t going to solve all our problems either and it may well create others. We should be realistic about where more data collection (or better analysis of what we already have) might help support accountable decisions, and where it will hurt human rights, and fundamentally, human dignity. There are many ways in which data-driven surveillance could cross the line from necessary to disproportionate, particularly when it’s untargeted, indiscriminate, or inappropriately restrained. Tools pitched as supporting public good could become tools whose impacts spread out from compromising privacy to facilitating the removal of liberty, mobility, or equality.
So we must tread carefully in allowing such efforts to proceed in our Canadian democracy. There’s a lot to think through, across the continuum of conception, design, implementation, and ultimately, deletion of such programs. Can we design something fit for purpose, with no function creep? What’s necessary as opposed to what might be nice to have, and how do those lines get drawn, by whom? Is individual level data needed, might synthetic data serve the purpose, and when will aggregate data may be sufficient to the identified need(s)? We also must carefully consider the risks of for–profit company engagement in the design and implementation of such surveillance tools. When profit-driven third parties become involved, there is the added risk that profit motives may underlie professions of potential public good and that data provided during the crisis may be retained and used afterwards, absent stringent safeguards.
The Electronic Frontier Foundation has identified some basic principles that must be core to any data-driven approaches to monitoring people who have contracted COVID-19.
To that I’d add, only those who legitimately need the information and who are charged and accountable for using it for public good should get to access it. In the current health crisis, that probably means epidemiologists and legitimate public authorities. And they should only be allowed to use it to promote broadly socially accepted public health objectives for the duration of the crisis, with a public-facing system of oversight and review to ensure that is truly the case. Emergency measures, including the tools to support those measures, must never become permanent. When it comes to individual level surveillance for ‘public good’ we must resist normalizing such efforts or the tools that support them.
This post discusses the civil liberties implications of the coronavirus quarantines taking place in 2020 in Canada. There are federal quarantine laws and provincial quarantine laws, which obviously vary from province to province. The federal and most provincial quarantine laws were updated after the 2003 SARS crisis, during which time all Canadian governments of all levels discovered that they did not have the legal tools to do what public health officials recommended. It was as chaotic then in Canada as COVID19 seems to be in the US, Italy, and other nations unprepared for COVID19.
The new emergency management laws passed post-SARS have not been tested legally, in terms of litigation regarding quarantine laws. In other words, the contemporary use of quarantine laws feels like uncharted legal territory.
CCLA’s view is that the Charter of Rights and Freedoms requires the government to quarantine only where explicitly prescribed by statute, which ought to be narrowly construed, although less strictly construed in circumstances attaching to criminal law detention. Furthermore, public officials must ensure that the quarantined have adequate living conditions and the effective right to counsel. Otherwise, the federal legislation, at least, appears constitutional on its face. The risks arise with respect to the particular conditions of the quarantined, and any hint of racial profiling taking place. Within the little case law on point, the courts tend to defer to public health policy objectives. However, more expanded forms of quarantine such as city-wide lockdowns or quarantines that target a stigmatized or racialized community (today, people of Asian descent; tomorrow, maybe people of national descent where COVID19 outbreaks take place) would be vulnerable to a constitutional challenge.
In late December 2019, health officials in Wuhan, China, detected the outbreak of a new virus known eventually called COVID19. On January 23, 2020, the Chinese government imposed a complete lockdown on the city of Wuhan.
About 370 Canadians in Wuhan requested evacuation to Canada. The Canadian government responded by chartering two planes and securing seats on a U.S. government flight. The returnees were quarantined in a hotel in Canadian Forces Base (CFB) Trenton, a military base approximately 170 kilometres east of Toronto. Those Canadians were released after the expiration of their 14-day quarantine; none tested positive for the coronavirus. Recently, Canadians were evacuated from a California-docked cruise ship to be transported to and quarantined at the same military base.
Regarding the CFB Trenton (Ontario) quarantines, the federal Quarantine Act empowers Canada to control the international movement of people and goods in the event of a health emergency, while the provincial Health Protection and Promotion Act empowers Ontario to impose quarantines within the province. Thus, the federal act was applied to the CFB Trenton quarantine because the government was dealing with returnees from China. By contrast, the provincial act was used during the 2003 SARS crisis to quarantine persons who were already in Ontario. While other types of legislation may also be relevant to pandemics, such as Ontario’s Emergency Management Act or the Constitution’s peace, order, and good government power, this section focuses on the Quarantine Act and Health Protection and Promotion Act.
The Quarantine Act grants the government broad powers to control international travel of persons and goods in times of disease. The quarantine at CFB Trenton was authorised under an emergency order made under s. 58(1) of the Quarantine Act, which provides as follows:
Order prohibiting entry into Canada
58 (1) The Governor in Council may make an order prohibiting or subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country or a specified part of a foreign country if the Governor in Council is of the opinion that
(a) there is an outbreak of a communicable disease in the foreign country;
(b) the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;
(c) the entry of members of that class of persons into Canada may introduce or contribute to the spread of the communicable disease in Canada; and
(d) no reasonable alternatives to prevent the introduction or spread of the disease are available.
This power was previously used during the 2014 Ebola outbreak to impose reporting and screening obligations on persons who had come from Guinea within a 21-day period. Since there is no statutory appeal from s. 58(1), the Charter’s s. 10(c) habeas corpus remedy would be the best way to challenge an order under that section. s. 7 of the Quarantine Act also empowers the government to designate any location as a quarantine facility – in this case, CFB Trenton.
The Quarantine Act also authorises non-quarantine disease control measures. For example, s. 28 of the legislation enables the appointment of specialised officers who can detain and medically examine any international traveller if they suspect them to be a public health risk or if they refuse to submit to medical examination. Unlike s. 58(1), there is a statutory appeal (s. 29) from this type of detention that must be heard by the reviewing officer “within 48 hours after receiving the request [for review of detention]”. S. 39(1) empowers officers to stop, search, divert, or destroy any “conveyance” (e.g. an aircraft or shipping container) that is entering or departing Canada if they feel that the conveyance is harbouring a communicable disease. These powers were used during the 2003 SARS outbreak to detain and decontaminate an aircraft at Vancouver International Airport because a passenger had SARS-like symptoms.
While only federal legislation has been used in the crisis thus far, provincial legislation could be activated if the virus continues to spread in Ontario. The provincial Health Protection and Promotion Act pertains to public health in Ontario generally; Parts VI and V of the Act pertain to communicable disease and quarantine. S. 22(2) of the Act empowers public health officers appointed under the statute to issue quarantine orders if they are necessary to prevent a communicable disease. These quarantine orders take many forms, including requiring a person or class of persons to isolate themselves, seek treatment, or close premises. There is a statutory appeal for these quarantine orders, but that appeal process may be illusory; unlike the federal statute’s 48-hour limit, s. 44(5) of the provincial statute only requires that a hearing be held “within fifteen days after receipt by the Board of the notice in writing requiring the hearing”, by which time the order may have already expired because most quarantine orders are measured in terms of weeks.
The 2003 SARS crisis provides an example of how the Health Protection and Promotion Act was used. SARS emerged in China in November 2002 and spread to Canada through a traveller; the disease then spread throughout hospitals in Toronto to infect a total of 438 persons. Ontario public health officials asked over 13,000 Toronto residents to voluntarily observe quarantine, most of whom did; mandatory orders were resorted to in 27 cases.
A quarantine is prima facie a form of detention that engages various Charter rights such as liberty (s. 7) or freedom from arbitrary detention (s. 9, 10). On the one hand, a detention is a detention, with varying degrees of limitations on a person’s liberty and security of the person, and varying degrees of due process applying to the liberty infringement. To lose one’s freedom of movement and residence and interaction with others, to be constricted to a particular property, even if quarantined at home, is a version of house arrest or institutional custody. Depending on the conditions, this amounts to one of the most serious lawful infringements of our fundamental freedoms in Canada. This is the state telling people that they are not free to go; they are not free to interact with their family and friends; they cannot hug their kids or vice versa; they are not free as they were prior to the imposition of a quarantine.
On the other hand, that liberty infringement in a quarantine context may be different from other contexts, such as detention pursuant to the Criminal Code, provincial offences acts, or the common law. In the criminal and quasi-criminal context, the prejudice is unquestionably greater than in the public health quarantine context. While there is a stigma attaching to the quarantined, it is less than that of a pre-trial detention in a correctional facility, let alone a custodial sentence in a provincial or federal facility. Other than that stigma, there are also less adverse effects following a quarantine detention than a criminal law detention. There is no ‘quarantine record’ saved permanently or otherwise in police records. There may be adverse effects on employment and housing, but that would require the employer or landlord to be made aware of the quarantined, which would not arise from public records checks. Nor are there necessarily any conditions attaching to liberty post-quarantine, such as is the case with those paroled and on probation.
Nevertheless, the effect on one’s mental health during a quarantine should not be understated. This amounts to a violation of security of the person under section 7 of the Charter. This will, by necessity, vary from person to person, depending on their natural level of anxiety, depression or other conditions. Someone addicted to alcohol or cannabis, both legal products, will face particular challenges during quarantine. To imagine that there are no addicts or alcoholics or mentally ill among the hundreds quarantined at CFB Trenton is statistically naïve.
Accordingly, in order for CCLA to continue to adequately honour and support our legal fights for the rights of defendants, prisoners, those in solitary confinement, and convicts with a criminal record, CCLA ought to consider that a quarantine is no federal solitary confinement, except of course when it is, but that goes to the quarantine conditions. From a principled perspective, then, the impact on the liberty and security of the person of the quarantined may be less onerous than criminal and quasi-criminal law detentions. It follows that the due process attaching to a quarantine may not be less than that in the penal context.
Quarantine is legally not a punishment and therefore attracts less due process rights than detentions that are punishments. On the other hand, the quarantined are unquestionably also innocent, so a quarantine no doubt may feel like a punishment to some. That is the infringement of liberty, which does indeed attract a level of due process and proportion consistent with its purpose. Just how long one may be held must be prescribed by statute or regulation. The conditions must be better than prison but less than a spa. And there ought to be rights of appeal. This would apply primarily to circumstances where someone believes themselves to have been mistakenly quarantined, or where the quarantine was no public health official’s error, but was applied in an overbroad fashion, akin to what is happening in Italy in March 2020.
There is little case law on Charter challenges to quarantine orders, although three cases suggest that there would be judicial deference to a public health order. For example, in Toronto (City, Medical Officer of Health) v. Deakin  O.J. No. 2777 (Ct. J.), the Ontario Court of Justice upheld a four-month extension on a four-month detention of a potentially infectious tuberculosis patient. The court held that his s. 7 liberty rights were violated but the violation was justified under s. 1:
What was done to [the patient] was carried out for the protection of public health and the prevention of the spread of tuberculosis, a disease that [a medical specialist] described as extremely contagious. 
In a second case, Re George Bowack,  2 B.C.R. 216 (S.C.), this time pre-Charter, the British Columbia Supreme Court sided with public health imperatives. In that 1892 case, a traveler with smallpox was detained in a hospital under a municipal bylaw that was passed pursuant to provincial legislation. The court upheld the legislation as legitimate and rejected the traveler’s writ of habeas corpus.
In a third case, Canadian AIDS Society v Ontario (1995) 25 O.R. (3d) 388 (Gen. Div.), an Ontario superior court adjudicated the constitutionality of HIV reporting requirements under various provincial healthcare acts. These reporting requirements operated to compel the Canadian Red Cross Society to inform public health authorities that the Red Cross possessed donated blood samples that were HIV positive. The court weighed the privacy interest of the blood donors against public health considerations and upheld the reporting requirements because “the state objective of promoting public health for the safety of all will be given great weight. ” There appear to be no cases where a public health-related detention has been successfully challenged.
Furthermore, the CFB Trenton quarantine is relatively measured; it lasts for 14 days (the current maximum symptomatic period for the coronavirus) and is constrained to people who have come from Wuhan, the epicenter of the disease outbreak, and those who had been quarantined on a cruise ship eventually landing in California.
More draconian quarantine measures have been applied in other liberal democracies such as the U.S., where quarantine has been applied to all American returnees who have visited the whole of Hubei province (where Wuhan city is located), and where a travel ban was placed upon Europeans entering the US, or in New Zealand, where any New Zealander returning from anywhere in China must be quarantined, or in Italy, where a nation-wide quarantine was issued by decree.
While there is debate over the efficacy of quarantines, there is at least some degree of support for their use in Canada to date, which suggests that the CFB Trenton quarantine is within the range of legitimate public health policy choices.
CCLA will advocate for legal reform going forward. The government ought to bake minimum standards for living conditions into the federal and provincial legislation. At present, those standards of relative comfort ought to be the minimum to which the government is held. Given that Health Minister Patty Hadju has acknowledged that a 14-day quarantine will be “very stressful”, poor quarantine conditions could constitute a form of state-imposed psychological stress that would violate security of the person under s. 7 of the Charter. Especially dire quarantine conditions could even be a form of cruel and unusual treatment under s. 12 of the Charter, which requires state treatment “to be so excessive as to outrage standards of decency” (see, for e.g., R. v. Ferguson, 2008 SCC 6 at para. 14). This is a high standard that might only be met if the quarantined were deprived of adequate food, housed in dirty conditions, continuously confined in rooms without meaningful access to the outdoors, or a combination of these or other hardship conditions. In the case of CFB Trenton, however, the hotel appears to be sufficiently comfortable – families are staying together in ensuite rooms that have high-speed internet and food delivery.
However, there is no guarantee that future quarantines will have these appropriate comforts because the federal and provincial legislation are silent on quarantine conditions. S. 62(c)-(c.1) of the federal legislation does empower the Governor-in-Council to make regulations regarding different aspects of quarantine facilities, but none appear to have been promulgated. Thus, CCLA will argue for statutes or regulations that prescribe minimum living standards for quarantines.
CCLA has already advocated for the federal government to respect, deliver and coordinate the right of the quarantined to have effective access to counsel (s. 11 Charter), pursuant to a recent public letter to Hon. David Lametti, the Attorney-General of Canada.
It is important to note that s. 11 Charter jurisprudence suggests that what the Charter requires is limited to the government informing the quarantined of their rights to counsel and the contact information for legal aid for those eligible for it (see R v Bartle  3 S.C.R 173), in addition to facilitating their access to a telephone if needed (see R v Manninen  1 S.C.R. 1233, 1241). Of course, it remains open to CCLA to advocate over and beyond the bare minimum, and it would certainly be welcomed if the federal authorities did facilitate legal services for all of the quarantined. To date, the Attorney General has taken the position that allowing access to self-help measures is enough. Given that few can find or afford counsel, this is not good news for Canadian civil liberties.
A city-wide lockdown similar to the one imposed on Wuhan by the Chinese government would almost certainly be unconstitutional, as legal experts have pointed out. However, measures less extreme than a city-wide lockdown could still be unconstitutional if they were overbroad or grossly disproportionate; for example, the quarantine of persons who are at low risk of infection or of entire city blocks because of a few residents suspected of infection.
CCLA’s position is therefore that any expansion of the quarantine regime must be clearly justified by empirically sound, scientific evidence and should not be more liberty-restrictive than necessary. That said, while s. 22(7) of the provincial legislation requires public health officials to justify in writing their decision to quarantine, the only way the statute enables testing of whether those reasons are backed up by evidence is through the statutory appeal process, which may be moot (as pointed out above) because a hearing need only be conducted after 15 days.
Also, no judicial authority is needed to quarantine, unlike, say, pre-trial detention without bail. While we are unaware of any political influence bearing upon public health officials federally in this case, nor is there any process prescribed, contrary to administration law principles.
Another potential issue is equality-related – if the government were to enact detention measures that disproportionately and unjustifiably affected a particular racialized community, such as the Chinese-Canadian community, e.g., quarantine of a city’s Chinatown. That would raise an s. 7 or 15 Charter equality issue, as well as engaging federal and provincial human rights commissions. Prejudices have historically informed public health policy globally and in North America; for example, in 1900, U.S. President McKinley ordered a quarantine of all Chinese and Japanese residents in part because “Asians were particularly susceptible to plague because of their dietary reliance on rice rather than animal protein.” Of course, there is no evidence of Canadian authorities repeating such naked racism today, but CCLA will always take the opportunity to express solidarity with an embattled community that is currently sounding the alarm over coronavirus-induced racism.
J.Y. HOH, LAW FOUNDATION OF ONTARIO ARTICLING FELLOW
M.J. BRYANT, CCLA EXECUTIVE DIRECTOR & GENERAL COUNSEL
CORONAVIRUS (COVID19) AND QUARANTINE LAW
Clearview AI is a tech company that the New York Times reports has scraped 3 billion photos of people from the internet, created a facial recognition system to exploit that database, and is marketing access to police forces. 600 police forces, including, the company says, some Canadian police forces, are using this unregulated and under-scrutinized tool. This brings all of the social debate about facial recognition—should it be banned, are there ever cases where benefits outweigh the risks of its use, how can it be regulated (or simply, can it be effectively regulated)—into clear and urgent focus. Because while larger, more responsible companies have been afraid to set this tech loose into the world, while people mull and policy makers deliberate, a fake it, break it, or make it startup has just quietly gone out and made the thing we’ve all been afraid would get made–a system that exploits personal images we share on platforms we rely on and trust as we participate in the modern world–and sold it to police. Who are buying it.
Let’s break down why this is a problem.
To begin, let’s consider why citizens in a democracy need protection from untrammeled facial recognition. The answer? Because it is a threat to human freedom, pure and simple. Facial recognition uses the physical characteristics of our face to create a mathematical model that is unique to us, that identifies us, just like a fingerprint. At CCLA, we think in fact it’s really helpful to talk about facial fingerprinting rather than recognition, because it gives a more accurate impression of what we’re really talking about, an identifier inextricably linked with our body. Taken to extremes, facial recognition let loose on our streets would mean the annihilation of anonymity, a complete inability to move around the world and be a face in the crowd. It would give whoever has access to it great power. Companies could track us and use what they learn to try to influence our consumer behavior. Politicians could use that same information to influence our political behavior. Stalkers could use it to have perfect knowledge of the whereabouts of their victims. States could use it to track anyone, from alleged criminals to protestors, or, just everyone, just in case. That’s a dystopian vision, but it’s actually one that a wide range of folks, even including Google CEO Sundar Pichai, agree could happen unless we’re very careful and very thoughtful about thinking through not just when, but IF to use the technology.
One line of argument in response to this is that it’s our own fault. After all, we all share information, including photos, in the course of participating willingly in modern life. When we share a photo on Facebook, for example, most of us have an audience in mind. If we choose to skip the privacy settings and let anyone who uses the platform potentially see the photo, we might have good reason to do so—perhaps we want to post images that allow potential employers to see what a good, responsible, family-oriented employee we’d make, or perhaps we like the idea that people from all around the world might see and engage with our posts and pictures. Or maybe we’re just not thinking about who else might see it at all. Regardless of reason, it is simply untrue that when we post even a public photo on a social media platform that we’re agreeing that anyone should be able to anything they want with that information. The terms of service for our use of such sites are one sided, take-it-or-leave it contracts, but they are contracts, and most reputable sites prohibit wholesale scraping for commercial use by third parties. We have very little protection from the platforms using our information however they like, but they typically promise us protection from others. We also have privacy laws that govern the terms and nature of consent for uses of our personal information. So, while the online world is under-regulated and our laws are out of date when faced with the potential of emerging technology, Clearview’s application is not operating in a lawless world, just one in which the law seems to be being ignored.
Why is this particularly problematic for a tool being used (secretly) by law enforcement? Simply, because in a democracy, police cannot be above or beyond the law. There’s a public debate that desperately needs to happen around tools of mass surveillance, about the benefits and risks of using indiscriminate information capture about everyone to catch the very few bad guys in a sea of innocent bystanders going about their lives. But what the Clearview AI story tells us is that there is an equally urgent debate we need to have about accountability when it comes to police surveillance. This is unexamined technology that it is feasible to argue is using unlawfully obtained images—certainly, there are questions that need to be asked and answered. Those questions don’t get asked and answered publicly, however, when surveillance technologies are procured and used in secret, as is the case with Clearview AI. No police force asked by the CBC in their pursuit of the Canadian angle of this story would confirm their use of the tool. Yet we know Canadian services are using it: there is even a quote from an unidentified “Canadian law enforcement” officer on the Clearview AI company website. Police often argue that it compromises their work if the investigative tools they use are known to the public. However, social license to exercise the powers we grant our law enforcement bodies can only exist in a trust relationship, and before we even get to the question of whether or not there is social benefit in allowing police to use the technology and if so, whether it outweighs the social risks, we need assurance that our law enforcement bodies are committed to using tools that are lawfully conceived and lawfully implemented.
In a democracy, we make tough choices about what police are and aren’t allowed to do all the time. In Canada, we have a Charter of Rights and Freedoms that lays out fundamental rights that we all have—and deserve—simply because we’re human. Sometimes respecting those rights makes the job of law enforcement officers harder, it makes investigations less efficient, it makes it essential to follow the rules. That’s a trade-off we have agreed to; as a free society we believe our public safety agencies cannot truly keep any of us safe if they themselves are not governed by law and required to uphold our basic values in the course of any and every investigative process.
As a privacy advocate, I get asked all the time whether it’s worth it to get worked up about stories like this, or whether we should just give up on privacy because the horse is already out of the barn.
My response: “The horse is out of the barn” is an inane metaphor and any livestock owner would agree—because if a horse were to wander off, you don’t just sit back and say hey, that valuable horse is gone now, too bad: you go look for the beast. And when you find her, you bring her home and you fix the stall door, or the barn door, or the corral gate—or all three, because you need the horse and it’s worth taking care of her. So with our privacy. It’s valuable. It’s a human right. It’s worth taking care of, and it’s worth fighting for. It’s worth hunting down, bringing home, and finding new ways to protect.
Here’s hoping that the Clearview AI story is another Cambridge Analytica moment, one that crystallizes all that we have to lose if we fail to engage with the risks of new technology as well as being open to its benefits. CCLA reiterates our call for a moratorium on facial recognition software until Canada has had a chance, as a nation, to discuss, debate, and dispute first if, then, only if we get past that question, when and how, this technology should be used in a rights-respecting democracy.
-Brenda McPhail, Director of Privacy
Shoplifting problem? What shoplifting problem? Retailers need to stop illegal searches of their customers. The rights infringement is unjustified and disproportionate to the inflated cri de coeur about low net profit margins of the retail industry. Boo-hoo. Poor Walmart. Poor Costco.
But just because you have the right to be left alone by Walmart and Costco bag-checkers doesn’t mean you always should. Consenting to a search of your belongings is something that shops can seek and you can provide. If you are concerned about being delayed by store agents by standing up for your rights, then go ahead and comply with their request to search your belongings and compare the items with your receipt. My beef is with those responsible for the searching, and the laws that apply.
A presumption of search compliance meets with the caricature of Canadians in popular culture, particularly US jokes about us as hyper-apologetic and meek. But the matter of bag checking is not unique to Canada. There is a growing global presumption swallowed whole by the media that shoplifting is an urgent problem justifying urgent searches of shoppers to prevent an alarming level of retail theft. If anyone is being naive and compliant about shoplifting, it’s the broadcasters and publishers that run story after story on the subject as if the poor retailers and the poor security industry are helpless victims of wrongdoing. In fact, the only people whose civil liberties are being compromised are the shoppers themselves. We’ve gone from the customer is always right to the customer is always a suspect; guilty until proven innocent.
That the Canadian Civil Liberties Association is being called upon by journalists to comment on these stories is telling. Shoppers are beginning to fight back by complaining to journalists, provincial human rights commissions and the courts. It’s the beginning of the end, one can hope, of the retailer practice of searching people and their belongings while exiting a store.
Bag checks is a retailer practice that could only be driven by shrewd bean counters and the private security industry, armed with an army of lawyers. Plenty of ink has been spilled by so-called researchers and journalists about shoplifting. To read the so-called studies and reports, one would think shoplifting to be a pandemic. There is some recognition of psychological and sociological implications, but zero skepticism about the so-called facts.
To obtain information about the prevalence of shoplifting, however, one necessarily has to accept the numbers rendered by unreliable sources: the retailers and security industry. It’s in the interests of the latter to alarm everyone about the necessity of more security services, and the interests of the former to mitigate their losses. The other security industry — that of equity and debt securities or financial instruments — is far more well known for being economical with the truth. But I’ve no doubt that the alleged global shoplifting pandemic will also be exposed as overstated and hyped by the self-interested.
Let’s be clear about your rights, as much as one can ever be clear about the law. The ‘shopkeepers privilege,’ as it’s known in the case law, came about from shoplifting cases, but arguably it’s only triggered when a crime is witnessed. In other words, the shopkeepers privilege is exercised after a theft is witnessed, not in anticipation of an imagined crime. That privilege says that shopkeepers can detain someone until the police arrive. After witnessing a theft, a shopkeeper can invite the customer to search the bag together with the shopkeeper. But the shopkeeper has no right to search without consent.
So what if the shopkeeper asks to search the bag without having witnessed a crime? I say forget it. If police cannot stop and search someone, without reasonable and probable cause, then why would a shopkeeper be allowed to engage in a version of ‘carding’? One answer would be that the customer took out a membership at Costco, and one of the terms of that membership includes this clause: “Costco reserves the right to inspect any container, backpack, briefcase, bag or other package when our members and their guests enter or leave our warehouses. Our members and their guests consent to such inspections when they enter our warehouses.” Walmart started the same practice of late, inadequately forecasting to customers that an illegal search was coming (albeit they wouldn’t put it that way), by way of notices near the self-checkouts. But some of the Walmart searches are simply at the exits, not targeting the self-checkouts.
Would that Costco contract or Walmart notice hold up in court every time? I doubt it. But what’s a customer to do, when standing in a line of people trying to leave the store, not wanting to be the one mischievous wolf in a herd of sheep opening their bags? Are you willing to kill a morning somewhere in the bowels of a Costco, awaiting either the police (who should not be called, because there has been no crime witnessed) or a menacing manager who threatens to revoke your Costco membership? And how thrilled is your shopping companion with your act of retail martyrdom?
No doubt an economist would say that the market will solve this issue, when customers vote with their feet, against the retailer practice of presuming their customers to be guilty of theft, until proven innocent. Maybe. Better that the industry itself get ahead on this issue, by changing direction, by respecting peoples’ rights – to privacy, liberty, and the freedom to be left alone. Roll back the prices all you want Walmart but stop rolling back people‘s rights. Nobody expects retailers to give out goods like a charity. Inventory shrinkage is part of the cost of doing your very profitable business. Rights shrinkage is not. Stop snooping in our shopping bags, as if we were suspects, when in fact we’re not.
– Michael Bryant, Executive Director
October 31 is an important decision-day for the Waterfront Toronto/Sidewalk Labs smart city— a fitting date to make a call regarding a potential neighborhood of horrors. The Waterfront Toronto Board is deciding whether to continue working with their chosen partner, Sidewalk Labs, on the plan, or whether there is such fundamental disjunction between what was asked in the RFP and what was delivered in the MIDP that there can be no deal.
At the CCLA, we’re following the dribs and drabs of information about the negotiations that comes out from behind closed doors. We’re watching the public response that is growing in volume, beginning with a highly critical report from Waterfront’s own Digital Strategy Advisory Panel, and more recently a form of a series of public letters and deputations to the Waterfront Toronto Board.
Indigenous leaders in Toronto have issued a scathing letter, calling out the tokenism that claims the privilege of having consulted while ignoring the thoughtful and important recommendations that were made, none of which are reflected in Sidewalk Lab’s master plan.
Hundreds of people, and groups representing thousands more, have endorsed letters originating with Amnesty International, Good Jobs for All, ACORN, and a Block Sidewalk-initiated group of concerned residents and experts. All of them, with passion, reason and urgency, raise common concerns about human rights, decent jobs, truly affordable housing in sufficient quantity, digital equity, privacy, surveillance and data governance, fair procurement for public land, government accountability and more, all at risk if the deal moves forward. Good Jobs for All characterizes it well when they write, “In many respects, this venture has been fatally flawed from the outset.”
While they fight in the street, we fight in the courts, and the concerns raised by these Indigenous leaders and city residents in many ways amplify the case that the CCLA is bringing forward in our lawsuit. We argue that Waterfront Toronto simply didn’t have the jurisdiction to have entered this deal in the first place, and that the deal will lead to violations of Charter-protected rights to privacy, liberty and free association, in a sensor-laden, intensively surveilled landscape that is planned to extend into streets, shops and even homes.
In a fascinating, ironic twist of fate, it is not only the people of Toronto who are providing reason to reconsider the wisdom of the smart city, but part of the very infrastructure of the city itself. The city’s transit payment system, the Presto smart payment card Torontonians increasingly love to hate, hit the news this week once again as a result of a critical report by Toronto’s Auditor General. Years of thought and development have gone into this system—it’s not necessarily the kind of product that would be rolled out in a “test-bed” neighborhood—but the TTC, Metrolinx and the City still haven’t got the complex web of working technology, solid standards, data governance, legal agreements and human buy-in and competence running smoothly.
This is the reality of embedding technology into infrastructure that is nowhere reflected in the plan the Waterfront Board is considering. It’s hard. Sometimes it won’t work. It also highlights the fact that in a city, it’s not just the technology but also the policy decisions that frame the technology, the governance decisions that protect the data the technology collects, and peoples’ interactions with both tech and governance systems that matter—because cities ultimately must be fair, livable, welcoming and rights-respecting spaces for humans.
Obviously, the fact something is challenging or that you might fail isn’t a reason to never try. Ask my kids, they’ll confirm grumpily that I use that line on them all the time. But it is absolutely a reason to make sure decision makers take all of the relevant factors into account, and to make sure they have legal authority to do it. In the case of Presto, public transit is a necessity and an obvious public good. Our elected representatives made the decision that it’s worth the civic pain and some data collection to “modernize” the payment system. If we disagree strongly enough, we ultimately have recourse: vote them out.
But that’s what’s wrong with Quayside. There is no public good justifying a 360-degree experimental surveillance environment to test new ways to monitor the city and the human behavior within it. No matter how beautifully it is dressed up in pastel drawings, words like “innovation” and “economic benefit” do not justify a constitutional nightmare.
And in the smart city project, it’s not our elected representatives making decisions about whether or not to create sensorville, although that would be scary enough, it’s a public corporation board with accomplished and respected, but unelected, members.
This is my fear for the Sidewalk Labs smart city. Tech that doesn’t work, that makes life harder. Tech that does work, but not in my interest, or yours (unless you own stock in the company that makes it). Tech that by design or by default erodes or eliminates fundamental human rights. Tech for tech’s sake rather than tech to solve actual city problems for the sake of the humans who live here. And to go with it, policies and governance constructed by a vendor whose plan makes it fairly clear that, at a fundamental level, they look at privacy as a bargain to be negotiated rather than a fundamental human right.
We need a rethink. Quayside has the potential to be the innovative, sustainable neighborhood we all hope for and deserve, but for that to happen we need a very different plan, developed legally and democratically. This Halloween, the treat Toronto needs is a smart re-set of the smart city project.
– Brenda McPhail, Director of Privacy, Technology & Surveillance Project, firstname.lastname@example.org
OCT. 7TH UPDATE: Check out our letter to Elections Canada here.
An election is a time when we should be encouraging debate and discussion from all corners of society, not stifling it. But Elections Canada has done just that by chilling Canadian charities from talking about climate change. It’s a blunderous misinterpretation of the law and an unconstitutional restriction on free speech. Here’s the story.
According to recent reports, environmental groups have been warned by Elections Canada that discussing the dangers of climate change during the upcoming federal election might be deemed “partisan activity” under federal election law. In other words, claiming that climate change is a real phenomenon might be seen – by Elections Canada – as taking a side in the election.
While the climate issue is clearly one of importance to many (perhaps all) voters and candidates, it is now not simply an election issue but, apparently, a partisan one. Elections Canada has said the concern about partisanship flows from the fact that Maxime Bernier, leader of the People’s Party of Canada (PPC), has expressed doubts about the legitimacy of climate change. Presumably then, any statements suggesting climate change is real are anti-PPC, and thus partisan.
This shocking warning from Canada’s electoral regulator demonstrates in stark terms how problematic the regulation of election advertising can be. While the United States may provide a cautionary tale about what happens when money is allowed to dominate the political process, it is possible that Canada has swung too far in the other direction, at the expense of free expression and meaningful democratic debate.
Elections Canada is responsible for ensuring that political parties and third parties do not violate the Canada Elections Act which places restrictions on political advertising by both political parties and “third parties” (e.g. community groups, unions, etc). Under the most recent amendments made to the law, third party restrictions in the pre-election period (which started on June 30 and will end the day before the election writ is dropped) were broadened when compared with the rules around advertising by political parties. However, even before those changes were made, political parties had a significant monopoly on electoral communications.
When third party advertising restrictions were unsuccessfully challenged many years ago by then President of the National Citizens’ Coalition Stephen Harper, the restrictions were such that a third party simply could not launch an effective national campaign.1 The maximum amount a third party could spend nationally was $150,000.00, but the evidence showed that it cost almost three times that for a one-time full-page ad in major Canadian newspapers. The limit that could be spent in a single electoral riding was so low that an organization could not even send mail to all constituents in that riding without exceeding it. The limits have gone up since the Harper case, but so have costs. Moreover, the landscape of advertising has changed considerably, with social media playing a much larger role with a much different cost structure.
In a few short weeks the federal election will be upon us, and like all elections, there is a great deal at stake. We all need information to ensure that our democratic choice is exercised with as much knowledge of the potential consequences as possible. Ironically, getting good information is increasingly challenging in what is supposed to be the information age. We are inundated with so much data and content from such a huge variety of sources that it can be difficult to know what is reliable and what is suspect. But this doesn’t justify restricting expression absent compelling evidence that it is necessary to do so. It certainly doesn’t justify setting arbitrary rules and limits that don’t have a clear basis in fact.
As the latest Elections Canada story shows, our current rules around spending are difficult to interpret and thus difficult to abide. The limits appear arbitrary and are set by elected officials who may stand to benefit from restricting what “outsiders” can say during the election period. We may all agree that explicit campaigning for one party or candidate or another should be regulated, but when we fold in “issue advocacy” and then try to discern when an issue becomes partisan, the waters get muddied. As the U.S. Supreme Court once said, “What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day.”2 If Elections Canada’s warning to environmental groups is any indication of where the line might be drawn, it looks like we may be in for some rough weather this election season.
1. Harper v. Canada, 2004 SCC 3.2. McConnell v. Federal Election Commission, 540 U.S. 93 (2003) and Federal Election Commission v. Wisonsin Right to Life, Inc., 551 U.S. 449 (2007).
– Cara Zwibel, Director of Fundamental Freedoms Program, email@example.com
Can an elected representative block a critical constituent on Twitter? What about suing another representative for defamation? How much control do politicians have over their online reputation and how much should they?
With a federal election on the horizon, voters will no doubt be relying on a great deal of online content and social media chatter to help them make decisions about candidates. In the buildup to October 2019, those who hope to get elected will be especially careful about their online presence. Candidates will not only ensure that they don’t post anything that could lose them votes but also take care that others aren’t posting items that may damage their chances. Online reputation management is big business – not just for those selling products and services. Reputation is a currency in the political sphere. There is a special incentive for politicians to make sure that the online record casts them in the best possible light, even if that means silencing critical or otherwise inconvenient voices.
If you are not already an elected representative, there is likely to be less online content about you, and you may even have a chance to delete some of those embarrassing tweets or Instagram posts before anyone thinks to take a screenshot for posterity. However, in my view, elected officials have special constitutional duties and responsibilities to their constituents – and this means that they may need to have thicker skin when it comes to online criticism. The question for those already in the public eye is: when does standing up for yourself start to look like heavy-handed silencing of your critics?
Recently, CCLA learned of a woman who has been blocked by her federal Member of Parliament on Twitter. MP John Brassard (Barrie-Innisfil, Ontario) has decided that the critiques that this constituent has voiced about him on Twitter merit retaliation. She no longer has the privilege of getting notifications about his tweets or regular updates about what he is doing in Parliament on behalf of his community. When she asked his staff why she was blocked, one response was that she was “a woman with very strong opinions”. They also told her that she “threatened to harass” the MP – this in response to her promise to be at campaign events and try to correct any misinformation she felt he was spreading about climate change. That is not harassment; that is political engagement, and candidates should welcome the opportunity to engage with an informed citizenry. These responses suggest a fundamental misunderstanding of how the political process works.
Brassard has also recently launched a $100,000 defamation suit and lodged a complaint with Barrie’s Integrity Commissioner regarding a Facebook post made by local Barrie city councillor Keenan Aylwin. Posted just days after the Christchurch massacres, Aylwin criticized Brassard and another Barrie-area MP, Alex Nuttall, for failing to speak out on what Aylwin characterized as Andrew Scheer’s “appearance on the same stage as a neo-Nazi sympathizer, Faith Goldy, at a United We Roll Rally.” Aylwin argues that the MPs are “playing footsies with white supremacists”. Brassard says the statement is false and defamatory, and that it violated the Code of Conduct for Barrie councillors. The Integrity Commissioner appears to agree with Brassard and Aylwin may face consequences from the council when they bring the matter before them.
In my view, these actions show a failure to appreciate the importance of free expression in Canada, particularly when it comes to political speech. I don’t believe that anyone – elected or not – has to subject themselves to repeated harassment in the real world or online. However, that is not what is happening in either of these two instances. An elected representative is going to face criticism, harsh, excessive, or worse: reasonable and eloquent. If the narrative is misleading or just plain wrong, an elected representative has avenues to correct the record. As we get closer to October 2019, Canadians should expect candidates to contribute to our political debate, not to stifle it. Silencing critics is not the answer.
In the United States, courts have already ruled that a public official who blocks a constituent from their Twitter feed has violated the First Amendment’s protection of freedom of speech. I think a Canadian court might well find a Charter violation in similar circumstances since these online spaces have become our new public squares. If these social media tools are used to connect representatives with their constituents, they have to take the good with the bad. Blocking a constituent and suing the city councillor sends a clear message to those who wish to engage with Brassard on matters of policy: tread lightly.
This kind of chill is terrible for our democracy.
Michael Rosenberg, special counsel to the Canadian Civil Liberties Association (CCLA), will be awarded the 2019 Arleen Gross Award for Young Advocates this month – and it is an honour well deserved! This past April, Michael was also awarded the Heather McArthur Memorial Young Lawyers Award.
CCLA is delighted to see the legal community recognize Michael’s legal achievements. Our organization was honoured to support his nomination for both these awards in light of his diligence, tremendous commitment and legal excellence. And we are privileged to have him working with us to support the rights of people in Canada.
Michael, with the support of his firm McCarthy Tétrault, is one of the key lawyers responsible for representing CCLA in a constitutional challenge of the solitary confinement regime in Canada’s federal penitentiaries, together with co-counsel Jonathan Lisus (Lax O’Sullivan). This is no ordinary undertaking.
Michael, Jonathan and their team have spent many months researching, pulling together evidence, engaging with medical, social science and legal materials, and presenting arguments before both the Superior Court of Ontario and the Ontario Court of Appeal – and they and are now addressing motions at the Supreme Court of Canada. Their mission on behalf of CCLA: to challenge provisions of the Corrections and Conditional Release Act that permit holding individuals – including vulnerable individuals and individuals who posed no danger – in solitary confinement, without independent oversight, for prolonged and indefinite periods.
Thanks to Michael, Jonathan, Larissa, Charlotte-Anne and others, we were successful in striking down the solitary confinement regime as unconstitutional.
The results have been far-reaching, legally and practically, and numerous proposals and changes have been introduced to ameliorate the brutal practice of solitary confinement, including a bill before Parliament.
Michael’s dedication to the issue goes beyond the courts. He has been outspoken in the media about the case, helping to inform and engage the public about the dangers and harms of solitary confinement. And he has spoken on behalf of the CCLA before the Senate of Canada, and otherwise has supported CCLA’s efforts to push for true legislative reform.
On Friday May 31st, the Supreme Court of Canada is going to release its decision in a case involving 4 young black men and one young Asian man carded in a private backyard!
“Carding” and “street checks” are just some of the terms used to describe the practice by certain police officers and police services of approaching, stopping and questioning people on the street (usually racialized young men) for no lawful purpose, asking them personal information, demanding to see ID, and then entering all this information into a police “street check” database.
In the case of R v Le which is being decided on May 31st, the police went even further when they walked, uninvited, into a private backyard and began to ask questions of 5 young racialized men who were in the yard and doing nothing wrong according to the police officers’ own testimony.
The officers tried to claim at trial that they felt justified because they saw no gate on the yard (the Ontario Court of Appeal fortunately did not accept this justification). Or, as we suspect, the problem is systemic or actual racism, in a criminal justice system that allows police to approach and question young men as a matter of routine, where there are inadequate rules prohibiting police from treating innocent people as suspects and violating their rights. Perhaps it simply never occurred to the police not to, even as they entered private property.
Either way, the Canadian Civil Liberties Association went to the Supreme Court of Canada to condemn the officers’ conduct in the case. CCLA has been advocating for years against carding, and demanding clear rules that prevent police from approaching, stopping and questioning individuals who are not suspected of being connected with a crime.
CCLA intervened in the R v Le case to address the importance of privacy, the reasonable expectation of privacy in a friend’s backyard, and the right of all people to privacy, including those who are low-income and racialized. CCLA also intervened to ask the court to establish in clear terms which police stops must be recognized as arbitrary detention. CCLA explained that even a brief encounter with police can be intimidating, humiliating and frightening – as most people who have been pulled over can confirm. This is only exacerbated when the violation includes trespass onto personal property – sending a strong message that the officers may not be concerned about the law or individual rights. And a police encounter like this is particularly concerning when the individuals doing nothing wrong are racialized – and the stop smacks of discrimination.
CCLA was represented by pro bono counsel Danielle Glatt (Paliare Roland) and Kate Robertson (Markson Law).
On Friday May 31st, the Court has an opportunity to create better privacy protections, and better protections against carding.
You can read our factum here.
In the wake of the live streaming of the massacres in Christchurch, New Zealand, Canada has joined many other nations in answering the “Christchurch call” and vowing to eliminate violent extremist and terrorist content online. But what does the proposed “Digital Charter” mean for people in Canada and our civil liberties? At the moment, the Charter appears to be entirely aspirational: we have a list of principles the government has announced but have no sense of whether, how or when those principles will be embedded in law, policy or practice.
Of the 10 Charter principles, at least one – if implemented into an enforceable law – will have a direct and significant impact on the content that Canadians can create, disseminate and access online. In other words, a very real impact on our freedom of expression which, it’s worth remembering, is protected in our Canadian Charter of Rights and Freedoms. That is a real – not aspirational – Charter with the full force of the Constitution, Canada’s supreme law. The government has said, “Canadians can expect that digital platforms will not foster or disseminate hate, violent extremism or criminal content.” On its own, a principle which sets out an “expectation” for what privately owned platforms will do has little weight, but one of the other principles promises “clear and meaningful penalties” for violations of law and regulations to support the principles.
This principle has me worried. How do we deal with hate and extremism without capturing the merely unpopular or offensive? Don’t get me wrong: I don’t spend time on neo-Nazi sites or seek out graphic acts of violence on video streaming platforms. I don’t like this kind of content and actively avoid it. But I worry about broad rules which “outlaw” some types of content and what this means for a democracy where free expression is supposed to be a fundamental freedom. Regulating expression is notoriously tricky. The sheer volume of content online and the Internet’s fundamentally global character only add to the challenges.
I need to know more about the kind of “violent extremism” from which Canadians can expect to be shielded. It is appalling that the massacre in Christchurch was live streamed using a social media platform, but is there a way to address that problem without also censoring other content which might have significant social value? Think of repressed minorities who suffer violence at the hands of the state. Live streaming those acts of violence might bring the world’s attention to an important issue. Consider also the impact of live streaming videos which have captured horrific acts of police brutality. Video can be an important means of holding the powerful to account. Does the government get to decide who can stream content live? Does Facebook? Should we let an algorithm determine who can be trusted to stream?
What does the government mean when it talks about “fostering or disseminating hate”. The legal definition of “hate speech” is quite narrow, and for good reason. But when most people use the term, it’s not that narrow definition they have in mind, or expect to be enforced. Our Criminal Code prohibition on hate speech (s. 319) has been held to be constitutional by the Supreme Court because it is supposed to only capture the most extreme kind of content. Even so, the legal definition is open to varying interpretations, and courts and judges frequently disagree about whether a given piece of content crosses the line. When does harsh criticism of Israel become anti-Semitism? When do strong statements of religious beliefs about the “proper” definition of marriage become hate propaganda targeting the LGBTQ community? Is the Digital Charter going to place these decisions in the hands of private platforms? If so, will those platforms be punished if, in the eyes of the government, they make the wrong call? If the answer is yes, they will certainly err on the side of censorship rather than free expression. And if dissemination is relatively clear, what does it mean to “foster” hate? Will platforms be expected to interfere in how online networks form to ensure like-minded bigots can’t find each other? If the goal of social media is to help connect people, are we now saying that some people really do need to be isolated? Our constitutionally protected freedom to associate is protected by the same Constitution which safeguards freedom of expression.
Finally, is the principle’s reference to “criminal content” a separate category, or are hate and violent extremism sub-categories of this broader theme? Are platforms responsible for deciding if content is criminal or will they only be expected to remove something which has already been the subject of a criminal conviction? State censorship is dangerous because we never know when our views, opinions or content may be deemed too offensive or harmful (or simply on the wrong end of the political spectrum) for public dissemination. Outsourcing censorship to a corporate entity accountable only to its shareholders is at least as dangerous.
With an election coming up in a few short months, the aspirational Digital Charter may make for talking points with little substance. Nevertheless, it is good to put this issue on the agenda. It is worth having a serious think about how to reconcile a strong commitment to free expression with a commitment or desire to deal with extremism online. And, when we pick our next elected representative, we should at least understand how they feel about free expression, and what they intend to do to protect and promote this right in the digital public square.
Refusing to burn a confidential source is a hallmark of journalistic integrity. But does Canadian law protect journalism confidentiality? That’s what we went to the Supreme Court of Canada to argue today.
CCLA is before the Supreme Court of Canada today intervening in a case that addresses the importance of protecting journalists’ confidential sources. In Denis v Cote, the Supreme Court will have its first opportunity to interpret the Journalistic Sources Protection Act (JSPA), legislation that made significant changes to the rules of evidence in recognition of the vital role that confidential sources play in the media’s news gathering function.
The case arises out of a criminal trial in Quebec. Mr. Cote, the accused, alleged that certain documents and information arising out of a police investigation were deliberately leaked by agents of the state to a reporter, Ms. Denis. He argued that this constituted an abuse of process and that the criminal charges against him should be stayed. In support of his motion, he sought to compel Ms. Denis to testify and provide her source’s identity. While his motion was initially denied, a subsequent decision required Ms. Denis to identify her source, and the matter is now before the SCC.
CCLA has been involved in many cases that dealt with the role of the media and the importance of confidential sources. We intervened in the case to assist the Court in developing the principles that should apply when motions for disclosure of sources are brought under the new statutory scheme established by the JSPA. Our goal is to ensure that the law is interpreted in a way that furthers freedom of the press – something that cannot be done unless journalists have adequate protection for confidential sources. CCLA is arguing that the presumption against disclosure of a confidential source can only be overcome where there is no other reasonable means of getting the relevant information, and where the public interest in disclosure clearly outweighs the public interest in non-disclosure. Essentially, disclosure of a confidential source must be both necessary and proportional in light of the interests at stake. We are also encouraging the Court to recognize that when disclosure is ordered, conditions should be attached to such an order to ensure that it minimally impairs Charter protected rights.
We are grateful to Prof. Jamie Cameron of Osgoode Hall Law School and Chris Bredt, Pierre Gemson and Veronica Sjolin of BLG who are representing CCLA on the case pro bono.
Read CCLA’s factum here
Doctors in Ontario will not be required to personally perform abortions, medical assistance in dying, or other healthcare services if the denial is based on the doctors’ religious beliefs – but they must provide an effective referral. This decision by the Ontario Court of Appeal today represents an important victory for the rights of patients who need reproductive healthcare, the right to die with dignity, and other stigmatized medical services.
The effective referral requirement states that doctors who deny a patient a service must, in good faith, ensure their patient is directed to a “non-objecting, available and accessible physician.” But it gets even easier than this. The doctors do not have to provide the referral themselves. All they must do is appoint someone in their office who can do so, and all that person has to do is find an agency (and one now exists in Ontario) that can find the healthcare service for the patient.
This “effective referral” requirement is part of two Policies of Ontario’s College of Physicians and Surgeons. And it was this requirement that was upheld by the Ontario Court of Appeal today. CCLA had intervened in the case arguing for the Charter rights of patients, and it welcomes this decision.
CCLA had argued that while both parties’ Charter rights were implicated, the Policies struck the correct balance in ensuring that important, Charter-protected medical services were accessible to patients.
Certain religious doctors had objected to the effective referral requirement, claiming that in their religious view, providing an effective referral would make them an accessory to and complicit in acts that violate their religious beliefs.
The College of Physicians and Surgeons together with several interveners including CCLA had argued that the Policies struck a reasonable balance between the religious freedom of doctors, and the rights of patients to access medical services. The Court agreed, noting the vulnerability of many patients, the very sensitive nature of certain medical services – such as abortion, birth control, transition-related services for transgender patients such as gender reassignment surgery, and medical assistance in dying – and the historical stigmatization associated with these. All of this may make it particularly difficult for vulnerable groups such as pregnant women and girls, patients with financial, social, educational, geographic and other challenges to access these services.
As such, without an effective referral requirement, patients may not be able to access these healthcare services at all. This, CCLA had argued, would constitute a serious violation of their fundamental right to human dignity, personal autonomy and privacy.
Today’s decision recognizes the important role doctors play in the lives of their patients, in particular those who are vulnerable. The normal rule, when doctors face difficult ethical questions, requires doctors to place their patient’s interests first. The Policies, however, do not force doctors to personally provide the healthcare that their patients need. This is already a significant compromise of patients’ interests. In the result, the Court found, requiring a compromise of doctors who deny these services, by asking them to provide an effective referral (which they can do through a third party and an agency), strikes a reasonable balance between the interests of doctors and patients.
As an organization with a strong commitment to freedom of expression, CCLA has traditionally focused on prohibitions and restrictions on speech put in place by government or state institutions. We have challenged the breadth of hate speech and child pornography laws, advocated for changes to the law of defamation to help foster free speech, and supported legislation to make it harder to succeed in using our courts to stifle public participation.
But the landscape relevant to protecting free expression has changed dramatically since CCLA’s inception in the 1960s. Today, Canadians don’t only live their lives in Canada – increasingly they live in online spaces that are governed by private (and global) corporations with an enormous amount of power. While those corporations are required to follow local law, they are not bound by the same Charter of Rights and Freedoms that requires that governments limit our rights only insofar as such limits are reasonable and can be justified. Facebook develops its own Community Standards and can then enforce those standards on its platform, and change those standards if and when it sees fit. It has no checks and balances, no separation of powers. But should it? Should we start treating Facebook more like a government? Is it moving in that direction itself?
Whether you think what Facebook does is best characterized as content moderation or simply censorship, it is clear that the social media behemoth is already deep into the business of deciding what kind of expressive content has a place on its platform, and what kind decidedly does not. In effect, this means that Facebook has a great deal of power over online expression – period. Over 2 billion people use the platform worldwide, and for some, there is no meaningful distinction between the internet and Facebook. Recognizing the enormous power the company has over online content, it has proposed the creation of a Facebook “oversight board” to make difficult content decisions. I was invited to participate in a Canadian Roundtable Discussion that the company hosted to discuss this proposal. They are engaged in these discussions worldwide, are soliciting comments from the public through a consultation process, and plan to have the board “up and running” by the end of the year.
The idea behind an oversight board is that the trickiest content decisions would not be left to the company, but instead the subject of a decision by an “independent” body by which Facebook agrees to be “bound”. I am being liberal in my use of quotation marks because the details around the proposal are still very preliminary. There are many challenging questions to address: how would the board be constituted; how would it decide which “cases” to “hear”; what would a “hearing” look like; would the process be adversarial or inquisitorial; how does the use of such a board serve Facebook’s interests; how does it serve those of its users? These are each complex questions with no easy answers. If there is one thing you can say about the proposal to establish an oversight board: it’s ambitious.
I’ll admit that I have not come to a landing on whether an oversight board for Facebook would be a welcome development. Part of me wonders whether global standards of free expression are even feasible given how rooted in local context and cultures expression is – particularly online. Nevertheless, I think experimenting with new governance structures may, at a minimum, create a global discussion about freedom of expression: what it means, its limits, and how it can be fostered. CCLA will definitely be engaged in that discussion, and if you care about free speech, you should be too.
The right to habeas corpus is a centuries-old remedy intended to protect individuals from “wrongful restraints upon their liberty.” The Supreme Court of Canada today extended this remedy to individuals held in immigration detention. CCLA was an intervenor in the case of Canada v Chhina. We argued that liberty protections afforded to people detained by the state should be available to non-citizens. The scheme of detention review under the Immigration and Refugee Protection Act is inadequate compared to the remedy available under habeas corpus.
Mr Chhina had spent many months in immigration detention, some of which in the Calgary remand centre. There, they keep inmates on lockdown 22 and a half hours each day.The first court to receive Mr Chhina’s habeas corpus application declined to hear it. They found that Mr Chhina had access to a complete and adequate detention review process under the Immigration Act. Thus, he was not entitled a habeas corpus remedy. The Supreme Court of Canada found otherwise. They found that the Immigration Act detention review process is “unable to effectively address the challenge raised by Mr Chhina’s application in a manner that is as broad and advantageous as habeas corpus.” In particular, the Immigration Act places an onus on detainees to argue that the detention is unlawful. The regulations do not guide how to consider the length and duration of the detention. Meanwhile, habeas corpus requires the government to justify the legality of the detention.
The Court also referred to an external audit commissioned by the chair of the Immigration and Refugee Board which “offers a timely, and frankly unfortunate, picture of how the [detention review] scheme is being administered for those in long-term detention,” and how it is failing to protect individual rights. The 2018 audit shows how new reviews tend to rely on old decisions rather than looking afresh at the legality of the detention. The immigration review body, rather than conducting an independent review, “often overly relies on the Canada Border Services Agency’s submissions.”
The Court also found that the immigration review scheme does not adequately provide for consideration of a detainee’s Charter rights in the full context of their circumstances. Moreover, the habeas corpus scheme is a swift and immediate remedy. This is in contrast to the lengthy process that can occur under the Immigration Act.
As such, the Court concluded, “Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited.”
Now what? It’s darkest before the dawn, to be sure, but what does Winnipeg or Portage la Prairie or Selkirk look like once the dust settles after another reported homicide? Some politicians’ words to date have been restrained, reasonable and grief-stricken; some not. Yet the decisions that politicians usually make in these circumstances are fearful — as in full of fear. The public outcry in Manitoba these days about crime is untethered from reality and torqued by fear, from which bad decisions get made.
I was the Attorney General of Ontario and a Toronto provincial MP during the 2005 Summer of the Gun — the highest spike ever of gun homicides in Canada. Our response was to crack down with police and prosecutions like never before. I still don’t know whether it did more harm than good. Today, I work for the other side: defending civil liberties. I can’t undo the past but I can pass along lessons learned.
Meanwhile, amid the palpable public anguish, Winnipeg remains a safe city, particularly compared to the rest of the world, even the rest of the continent. Nights like that of the Winnipeg double homicide or the recent Selkirk knifing occur every night in Rio or Johannesburg. Unless you’ve lived in South Africa, Jamaica, or Central America, you’re like me: no idea what it’s like to live in a place with a high firearm death rate. We have no idea in Canada; even those living in the north end of Winnipeg.
Within Canada, homicides are simply not a leading cause of death — about 25th on a Stats Canada list headed by cancer. Gun homicides are nowhere near as prevalent as suicides or accidents, let alone the so-called natural causes of death, from cancer or heart disease. Every year in Canada there are around 12,000 accidental deaths, 4,000 suicides, and 400 homicides.
If you know someone involved in a plane crash, you’ll be suddenly afraid of flying. But the statistical likelihood of a plane crash is exponentially lower than a motor vehicle accident. So it is with gun violence in Manitoba today.
Now, please do not misunderstand me: guns are deadly. No doubt about it. But they’re at their deadliest in the hands of someone with suicidal ideation. Remember, among all Canadian gun deaths, about 80% are suicides. If we have a gun fatality issue in Canada, it’s far more about suicides, than homicides, as tough as that may be to accept this month.
So please, yes, take away the guns used in suicides and homicides, and lives will be saved. The only way to do that is to reduce the supply of guns overall in Canada, but that’s impossible now because there is no way to track firearms in Canada since the Harper Government scrapped the gun registry and destroyed all the data, and then Justin Trudeau maligned the registry and promised it would never return, under his leadership. Nevertheless, there is technology and capacity to track both firearms and ammunition. Back when Canada used to do the former, gun deaths declined significantly.
The truth is that we do not know exactly why gun homicides fluctuate over time. I’ve heard no comprehensive or convincing explanation as to exactly why it dropped by so much and then went back up to 2005 levels in Toronto after that fateful year of 50+ gun homicides. Demographics doesn’t explain it, since we grow year over year but gun crime goes up and down. We just don’t know.
So it’s unnecessary to ruin a city by putting video and audio technology all over the place, so that we’re constantly under police surveillance, contrary to our constitutional rights to privacy and liberty. And it is wrong to make neighbourhoods feel under siege by disproportionate police presence and surveillance installations, simply because they’re populated by ethnic minorities. Note that I said “feel,” because no matter how you spin it, dumping a truckload of police and squad cars in a multi-racial neighbourhood betrays our country’s aspirations, unless you’re doing the exact same thing to South Tuxedo or Heubach Park or the like. The better view is to put sunset clauses on these massive changes, because we know that decisions made today may look unnecessary once the panic dies down.
When this too has passed, what will your city look like and feel like? Will we regret installing technology onto streets that will not be easily removed? The answer depends on how elected leaders make decisions. If the decision-making is uninformed and fearful, then we will all be the worse for wear.
Yet another story has emerged about an intrusive attempt to search a traveller’s phone and laptop at the Canadian border.
This time, it was a lawyer, travelling home after an extended trip with a laptop and phone containing materials from his work, materials he told the CBSA agent who asked for his passwords contained solicitor-client privileged information.
When they insisted on passwords, and he continued to refuse, his devices were seized. He’s fighting that seizure and the rules that allowed it, and CCLA will help.
But his case is just the most recent in a string of cases, that stem from the way CBSA interprets the Customs Act–an interpretation CCLA has been advocating against for a long time.
CBSA says cell phones are a “good” at the border, just like a box of apples or a suitcase of clothes. The Customs Act allows for discretionary searches of goods. CCLA believes that cell phones are much more than simple “goods”. After all, they potentially can contain quite literally tens of millions of pages of text. They have photos of our loved ones. They have texts from our friends, colleagues, kids. They hold the daily minutiae of our lives, a conglomeration of details that no one in the pre-digital age would ever have conceived carrying across the border on a casual trip, even if they had the herculean capacity to carry them in physical form. In other words, the world has changed, and the Customs Act should be updated to reflect that fact.
The federal Standing Committee on Access to Information, Privacy and Ethics agreed with us, back in 2017. CCLA appeared before the Committee in their study Privacy of Canadians at Airports, Borders and Travelling in the United States, and welcomed the resulting report (which quoted our submission).
CCLA argued before the Committee that in non-border contexts, Canadian courts have clearly recognised a heightened privacy interest in cell phones because they contain, or are connected to, a wealth of personal, potentially intimate detail about individual’s lives. We argued that warrantless searches of these devices should not be allowed. We stated that the Customs Act needs to be updated to reflect that fact, and the Committee has explicitly agreed: “The Committee argues that the Customs Act should be updated to recognize that electronic devices contain sensitive personal information and that electronic devices are not “goods” within the meaning of the Customs Act.”
Two years later, nothing has been done, and Canadians continue to be subjected to these invasive searches, or face penalties for choosing not to submit.
Canada needs an updated, Charter-compliant legal framework for searching cell phones at our border, and we need it now.
Read the Committee Report.
Read the CBC stories about the most recent case.
The Ontario Court of Appeal has once more handed down a scathing decision to the government on its use of solitary confinement, and its failure, again, to fix flaws as ordered 16 months ago. If you are concerned about the use of solitary confinement in Canadian prisons, agree with courts and inquiries that prolonged solitary is cruel and unusual treatment, and believe that solitary should not be an option for vulnerable people, you are not alone. Given the many decisions, almost-missed deadlines, and requests for extensions, we thought it may be helpful to provide a brief update on our challenge, and why the government should stop fighting.
The bottom line: Despite the fact that CCLA won its challenge in December 2017, the government has not reformed its solitary confinement regime, not fixed the constitutional flaws found by the courts, and not passed new legislation. What it has done is fought, appealed, appealed again, and on 5 separate occasions (and counting) asked the courts for time to fix or delay fixing the law. And all the while, people are spending extended periods in Canada’s prisons in horrendous conditions and extreme isolation. It is now well past time. The government must stop fighting in the courts, and start making the necessary reforms in our prisons.
As to where things stand, in December 2017, the Ontario Superior Court agreed with CCLA’s expert witnesses about the devastating harms of solitary. It concluded that the current regime known as administrative segregation was unconstitutional because it did not provide independent review of decisions to place or keep someone in solitary. The government did not appeal this decision and it is still good law. However, the government did say that they needed time to amend the law and asked for 12 months. Over CCLA’s objections, the Superior Court granted the government the full 12 months requested.
Ten months later, the government introduced Bill C-83 in October 2018. However, this bill did not fix any of the issues raised by CCLA, including the issue of independent review as ordered by the Superior Court. The government then asked the Ontario Court of Appeal for more time to pass this bill. The Court of Appeal expressed serious reservations about this delay and the fact that the bill did not resolve the issue of constitutionality as found by the lower court, but granted an extension until April 30th 2019. As this date approached, the government made yet another request for more time. The Court of Appeal granted this too, “with great reluctance,” until June 17th, all the while making it clear that this was the last time.
That’s where things stand with the decision emanating from the Superior Court.
In the meanwhile, CCLA, while happy with our victory in the lower court, was not fully satisfied with the outcome. The lower court had only ruled the lack of independent review to be unconstitutional. CCLA had also argued that there were other unconstitutional aspects to the solitary confinement regime, including prolonged solitary confinement (over 15 days), and the placement of vulnerable people (such as people with mental illness, and youth) in solitary. And so CCLA appealed our own win to the Ontario Court of Appeal – and won again.
In another tremendous victory, the Ontario Court of Appeal ruled that prolonged solitary confinement amounted to cruel and unusual treatment and is unconstitutional. The Court gave the government 15 days to fix the problem.
It may not come as a shock to learn that in seeking an appeal of this decision at the Supreme Court, the government also asked the Supreme Court for, you guessed it, more time. This time, the government asked to delay implementation of the Court of Appeal’s decision on prolonged solitary. The Supreme Court granted a delay but only until the next phase of the process, which it heard on an expedited basis. At that point, the Supreme Court will issue its decision on whether the government has to comply with the Court of Appeal’s decision to end prolonged solitary confinement straight away – or whether it can wait until the Supreme Court hears the entire appeal.
If this all sounds terribly complex and Sysphean, it is and it is not. It is true that the government is wasting taxpayer time and resources. It is true that the government has yet to implement an independent review process as ordered by the Superior Court or to end prolonged solitary as required by the Court of Appeal. But the government has in the meantime quietly found solutions for many of the people formerly housed in solitary. The numbers in these units have reportedly dropped 59% in the past 5 years. So what the government claims it cannot do and needs more time to do, it is nonetheless doing. All it takes, it seems, is patience, strength, and the determination to make things right.
The federal government is trying to roll back significant protections for refugees in an underhanded and undemocratic move. For so many of us in Canada, we know that immigration is our strength, and protecting refugees is a source of pride. We also must defend refugee rights under our Charter and international law.
The new omnibus Budget Bill (Bill C-97) includes measures that would deprive asylum seekers of a full and fair independent hearing in Canada if they previously filed a claim in the US or certain other countries.
Before critical changes are made and fundamental rights removed, changes to our refugee laws need careful attention, critical consideration, and open discussion by members of Parliament and by the public. This discussion will almost certainly not happen if these changes are included in a Budget bill rammed through the Finance Committee.
A budget bill is supposed to focus on, well, the budget. Looking at Canada’s income and spending over the next year is an enormous task – but it is something the Finance Committee knows how to do. The Finance Committee has neither the time nor the expertise to properly consider and debate what changes to the refugee laws will do to people in Canada seeking asylum, and what harms may befall them if the government removes them. So who does have the time and expertise?
In a free and democratic country like Canada, each of us has the right to vote for our representative to propose, debate, and create (or object to) laws, to look closely at each one, and to hold the government to account. Therefore, many politicians, including Stephen Harper and Justin Trudeau, have both at some point voiced their strong objection to omnibus budget bills.
For the same reason, CCLA objects to steamrolling changes to refugee laws through an omnibus budget bill. It is undemocratic and unCanadian – and far more importantly, the consequences for people fleeing persecution, torture, or even death could be horrifying.
CCLA has joined forces with CARL, CCR, BCCLA and Amnesty International to oppose these measures. Please help us – and help demand, at a very minimum, that any changes to Canada’s refugee laws must undergo careful consideration by a Parliamentary committee with the appropriate time and expertise.
A blistering report issued by Canada’s and British Columbia’s Privacy Commissioners accuses Facebook of violating Canadian law following their joint investigation into the Cambridge Analytica scandal—and then refusing to comply with the Commissioner’s recommendations to make sure it doesn’t happen again.
Federal Privacy Commissioner Daniel Therrien states in a press release that Facebook’s “privacy framework was empty, and their vague terms were so elastic that they were not meaningful for privacy protection.”
The report finds that:
The Commissioners warn that “there is a high risk that the personal information of Canadians could be used in ways that they do not know or suspect, exposing them to potential harms.”
Both Commissioners are calling for legislative reform, including new powers of enforcement, in light of Facebook’s refusal to accept their findings or implement their recommendations.
It’s yet further evidence that privacy rights cannot be adequately protected through recommendations, voluntary compliance and organizational cooperation—as Facebook has just illustrated, that only works until they change their mind (because they’re not going to change their business model). It’s also worth noting that if Facebook had complied with earlier recommendations from the OPC in 2009, they might have avoided the Cambridge Analytica affair altogether—but they didn’t.
This report, and Facebook’s non-response, highlights the asymmetry of power between data goliaths, our Canadian privacy watchdog agencies, and us, the people of Canada. While Facebook’s CEO, Mark Zuckerberg, has been beating the privacy drum lately in an attempt to win back the trust of Facebook users, when faced with a series of concrete recommendations, Facebook has instead disputed the investigation’s findings and refused to comply. Granted, the recommendations, which included submitting to a voluntary audit of its privacy policies and practices over the next 5 years, were comprehensive and stringent, but surely compliance with privacy law should, in fact, be both of those things?
If governments were waiting for more evidence of the need to update Canada’s privacy laws to reflect the new value of data, the growing power of data collectors and aggregators, and the new risks—to individuals and groups—of ubiquitous, granular data collection, analysis and use, here it is. It’s time for our democratically elected officials to take the risks to their constituents seriously, starting by bringing political parties into a privacy law regime, and continuing with thorough reform of both our federal private and public sector privacy acts.
The next step for the federal Privacy Commissioner will be to take the matter to Federal Court. And for good measure, they’ve put their money where their mouth is in relation to their complaints and have taken down their Facebook page.
Read the full report
It’s a loss for privacy in a disappointing Supreme Court decision released April 18 in R v Mills. The Court issued four different reasons in this decision, a reflection of the complicated issues at stake in a case that combines a police sting operation, private messaging between an officer posing as a young girl and the accused over an online platform, and the use of screen capture technology to record ongoing electronic conversations, all without judicial warrant.
CCLA intervened in this case to argue that a zone of privacy for electronic conversations is essential in a free and democratic society. People in Canada should be able to conduct private one-on-one conversations, free of state interference. We also sought confirmation from the Court that the finding in R v Marakah that text messages may carry reasonable expectations of privacy also carries over to other forms of electronic conversations, such as the ubiquitous messenger applications that many of us use as an alternative to texting.
On that point, the Court agreed, with the plurality writing that the one-on-one electronic conversations in this case “have no legally significant distinction from text messages.” This confirmation of a technologically neutral approach, that focuses on the private nature of the conversations rather than the platform on which they occur, is a small battle won.
But Justices Abella, Gascon and Brown go on to conclude that the accused’s expectations of privacy in this case were not objectively reasonable, because “adults cannot reasonably expect privacy online with children they do not know.” While s. 8 Charter protection is generally content neutral, the fact that the relationship was engineered by police, and the socially abhorrent nature of child luring, weighed more heavily in the reasons written by Brown J.: “This appeal involves a particular set of circumstances, where the nature of the relationship and the nature of the investigative technique are decisive.”
Justices Wagner and Karakatsanis presented different reasons for finding no s. 8 breach occurred. They found that when undercover officers are communicating in writing with individuals, there is no search or seizure because the officer is the intended recipient of the messages. Similarly, in written communication, they found that the screen capture of the message did not require judicial authorization because the sender, by engaging in written conversation, must have understood the recipient would have the ability to keep a copy of that conversation.
Only Justice Martin advanced the position that the state surveillance of the private conversation was, in fact, a search that violated s. 8, absent judicial authorization, and further, that the screen capture software did, in fact, constitute an interception within the meaning of the Criminal Code.
The ultimate effect this decision has on police sting operations will be something to watch—will it be applied only to investigations involving sexual predators and children, or will police read it as mitigating the need for judicial authorization more broadly in online sting operations? Will police attempt to extend the reasoning to apply to surveillance of other vulnerable populations, such as racialized persons or groups? The reasons of Wagner C.J. and Karakatsanis J. did speak to narrow that possibility, noting that just because they found s. 8 was not engaged in this case “does not mean that undercover online police operations will never intrude on a reasonable expectation of privacy.”
Section 8 Charter protections require a balance between the public’s interest in being left alone and the government’s interest in law enforcement. But that balancing should occur after, not within, the reasonable expectation of privacy analysis. Justice Martin’s reasons lead ultimately to the same decision as the rest of the bench, with a very different analysis. She states the question to be answered cannot focus solely on adults who communicate online with children for an evil purpose, but must recognize the broader implications (that CCLA similarly identified) that are core to the case, namely, do “members of society have a reasonable expectation that their private, electronic communications will not be acquired by the state at its sole discretion”?
CCLA will continue to advocate for the latter.
We are grateful to our pro bono counsel Frank Addario and James Foy of Addario Law Group LLP for their work on this case.
Read the Court’s decision here
Read CCLA’s factum here
Sometimes truth really is stranger than fiction. It may be hard to believe, but earlier this week the Supreme Court of Canada – nine of the finest legal minds in the country – spent the morning hearing arguments in a case that involved the arrest of a woman who…wouldn’t hold an escalator handrail (gasp)!
In Kosoian v. STM et al, the Court had to consider whether the police should be liable for their actions in arresting, handcuffing, and searching the backpack of Ms. Kosoian in a Montreal metro station. She was alleged to have committed the infraction of failing to obey a pictogram (the picture that encourages people to hold the escalator handrail) and also ticketed for refusing to provide her name to the police so they could give her a ticket for her deplorable actions. Ms. Kosoian was acquitted of these “charges” and sued the transportation authority, police and the individual officer whose actions were at issue. Both the trial court and Quebec Court of Appeal found that the police were not liable, even though there was agreement that not holding the handrail isn’t actually an infraction at all. In fact, both courts made comments suggesting that Ms. Kosoian was the author of her own misfortune for daring to disobey an officer of the law.
While the facts sound trivial, the legal principles at issue in the case are significant. When does the law require you to provide your name to the police? Can a pictogram form the basis of an offence? What happens when the police arrest you for a non-existent offence? CCLA intervened in this case to argue that an ambiguous pictogram cannot create an offence – this violates the fundamental principle of fair notice of the law. In addition, CCLA said that the police must bear liability when an error has been made in conducting an arrest. Even where a police officer may have received training that led to their error, the costs of that mistake should be borne by the police, not the innocent civilian who is arrested. Finally, CCLA argued that absent a specific legal obligation, individuals do not have to identify themselves to the police. Under a provision of the Quebec Code of penal procedure, CCLA argued that in order for the obligation to identify oneself to kick in, there must be an infraction, there must be reasonable grounds to believe the individual has committed the infraction, and the individual must be informed of the infraction that they are alleged to have committed before being required to provide their identity. These requirements help to mitigate the concern that police may unreasonably force individuals to identify themselves when there is no obligation to do so.
CCLA is grateful to Torys LLP and, in particular, Sylvie Rodrigue, Marie-Eve Gingras, and Emma Loignon-Giroux for acting pro bono for the CCLA in this appeal.
CCLA is going to court to reset the Waterfront Toronto/Sidewalk Labs smart city project. A lot of people say, “wait for the plan, nothing has happened yet. Even if the plan is approved, it will take a long time for shovels to hit the ground.” We have considered that perspective, and don’t take this action lightly. We are not scared of change or innovation. We are not anti-tech. We are firmly and unapologetically pro-rights and freedoms, and the way this project was conceived puts many of the rights people in Canada value at risk.
The problem is, the process that led to this project in the first place was fatally flawed and then presented to the public as a fait accompli, announced with fanfare by the Prime Minister, then Premier, and Mayor.
The problem is, the last year and a half of consultations haven’t been asking whether Torontonians want Google’s sister company, Sidewalk Labs, to create a sensor-laden “test bed” on the Waterfront, either in the Quayside Neighbourhood or ultimately across the Portlands. They have just been discussing what it should look like and promising us it will be awesome.
The problem is, we increasingly realize comprehensive data collection that permits granular monitoring of people’s activities and behaviour online is harming individuals and groups, infringing human rights, and diminishing human autonomy. So why on earth would we think it’s a good idea to import that big data model into our city streets by embedding multiple kinds of surveillance technologies into our infrastructure? A city built “from the internet up” sounds more like a threat than a promise.
The problem is, virtually everyone—project detractors and supporters alike—agrees that the laws we have to protect privacy are simply not good enough to safeguard us against the potential harms of this kind of pervasive surveillance infrastructure. Many of the technologies that will facilitate the smart city were unimagined when our laws were written. Data has a different value now, whether it is individualized or aggregate, because it can be used in so many ways that create potential benefits but also raise concrete risks. Voluntary best practices, self-assessments for responsible data use, civic data stewardship models, none of these are bad but they are inadequate. We need, and deserve, accountable, enforceable legislation, not promises of good behaviour.
The list of problems could (and does) continue. Which is why the Quayside project should not.
Our Notice of Application filed today, which we bring forward with co-applicant Lester Brown, a citizen of Toronto, is addressed to Waterfront Toronto and all three levels of government, municipal, provincial and federal. We are arguing that the agreements at the heart of the project are in violation of administrative and constitutional law, and are thus invalid. This project should be reset as a result.
We will keep you updated about this litigation over the upcoming months. For today, we wanted to share the news of its launch.
CCLA is grateful for the work by our amazing counsel, a team from Fogler Rubinoff LLP led by Bill Hearn and Young Park.
Read our filed Notice of Application
Forcing an opinion on someone, or putting words in their mouth, is a violation of their liberty, freedom of thought, association and expression. When someone does it from a position of power, it is demeaning and an abuse of authority. When a government does it to their citizens, I’m grateful that we have a Charter of Rights and Freedoms that protects us against such a fundamental wrong.
Among the changes the government of Ontario has incorporated into the budget is a new requirement that gas retailers display a notice about the impact of the federal carbon tax on gas prices. Touted as a transparency measure, the requirement is, in fact, a way of forcing private companies to peddle government propaganda. It is compelled speech and it goes against the fundamental protection provided for freedom of expression in our Constitution. We need to fight it.
The notice required by the province doesn’t simply break down the costs of gas and where different portions go. That, like the requirement to include ingredient lists and calorie counts on food packaging, might be acceptable. Instead, the notice is a part of the provincial government’s arsenal in the war on the federal carbon tax measure. That is a war the province may be entitled to wage – but they should not be able to conscript Ontarians into fighting it for them.
It does serious damage to our democracy when the government starts forcing people to spread political messages for them. This measure dictates not only the message but also the precise means by which it has to be delivered. While there is a strong argument that the notice misrepresents the true cost of the carbon tax (by failing to mention the available rebate), the question of accuracy is not even close to the most troubling aspect. Simply put, the notice is a commercial for the provincial government. In addition to a little bar graph/arrow graphic on price increases over the coming years, it invites people to visit the government’s website on the carbon tax to “learn more about taxes on gas”. But the website devotes little time to gas prices and much more to explain why Ontario has a “better way” of fighting climate change than the federal government.
The provincial government has managed to require private companies to advertise for them and, more specifically, advertise against the federal government of a different political stripe. Not only is this advertising free for the government – they can earn money for every retailer who fails to comply (retailers who fail to post the notice face fines of up to $10,000 per day). They have turned gas retailers into their PR firms and turned compelled speech into a revenue stream.
Regardless of the views that one has on the carbon tax issue, we should all worry when the government starts using the law to force private entities to the tow their line. CCLA will fight against this proposal and any other attempts by the state to conscript Canadians into spreading messages for them. Freedom of speech means freedom from unreasonable government restrictions on our speech, but it also means freedom from unreasonable government compulsion. The new carbon tax measure in Ontario has crossed the line.
In these days of heavy-handed rhetoric from our leaders and political infighting, it is easy to become cynical about the future. But last week we saw young people stand up for what they believe in and make their voices heard. It was powerful and inspiring and gives us hope for the future of the country – maybe even a little hope for the present.
On Wednesday, in the temporary House of Commons, several dozen Daughters of the Vote delegates turned their backs on Prime Minister Trudeau to express their displeasure about the decision to expel two prominent female MPs from the Liberal caucus. Some delegates walked out when Opposition leader Andrew Scheer took the podium. These silent protests were a means of exercising a right foundational to our democratic system of government – freedom of expression – and it showed the power of that expression when it takes a collective form. Daughters of the Vote delegates are chosen based on their engagement with their community, so it is not surprising that some of these young women decided that their trip to Ottawa was about more than networking or sitting politely while the country’s leaders addressed them.
On Thursday, students across the province walked out of their classrooms to protest proposed cuts to the education system. CBC reported that over 100,000 students participated and that it is believed to be the largest student protest in our country’s history. Many students also rallied alongside parents and teachers at Queen’s Park on Saturday, sporting signs and buttons opposing cuts they see as harmful to their futures.
There are those who have been dismissive of these young people. Some say their activism mostly takes place online, where they don’t have to get their hands dirty. The events of this week suggest otherwise. Ontario’s Premier and Minister of Education have said that the students participating in the walkout are being used as pawns, and others argue they just want to skip class. But interviews with many of the young participants show this is not the case. And anyone who has tried to convince a teenager to do something they don’t want to do should recognize these characterizations as false. These are young people who are knowledgeable, passionate, and engaged. Most of them aren’t old enough to use the ballot box to express their views, so they have found other tactics. Those in power should be encouraging them and expressing pride in a generation that knows its rights and chooses to exercise them. “The people” don’t only speak once every four years.
We dismiss and belittle these young voices at our own peril. They have powerful tools at their disposal that were not available to previous generations, and they will no doubt learn from the successes and failures of the past. In a few short years, they will also have the power to exercise their democratic right to vote – and the politicians who mocked and undermined them may face a reckoning. I, for one, am looking forward to it.
Ontario’s highest court handed advocates a significant victory today, finding that the sex offender registration schemes in both Ontario and Canada discriminate against individuals with a mental illness.
In G. v. Ontario (Attorney General), the Ontario Court of Appeal was asked to look at the provincial and federal sex offender registries and consider whether it is appropriate that those registries include individuals found “not criminally responsible” of sexual offences as a result of a mental disorder (“NCR accused”). The evidence before the Court showed that while a person found guilty of a sexual offence has multiple “exit ramps” to avoid registration or get off the sex offender registry, it is much more difficult for an NCR accused to do so – they have far fewer “exit ramps” available to them.
The facts in the case were compelling: the appellant, G, was convicted of two sexual offences in respect of his wife at the time. The charges arose out of incidents that occurred when G was in a manic state brought on by bipolar affective disorder. Prior to the incidents, G had no history of mental illness and no criminal record, and while his wife involved the police at the time to ensure her safety, she was generally supportive of G and understood his acts were a result of his mental illness. After the Court’s finding that G was not criminally responsible, he lived in the community under terms dictated by the Ontario Review Board (ORB). He was later absolutely discharged and had been continuing to receive treatment and take medication. As the Court of Appeal noted “The appellant has not been under the authority of the ORB for 15 years. There is no suggestion that, in those 15 years, the appellant has engaged in criminal activity, much less criminal activity involving sexual misconduct. By all accounts, he lives a law-abiding and productive life.” For the appellant, his status on the sex offender registries was a source of significant stress and concern.
In 1991, Canada’s Parliament reformed our criminal law to recognize the unique needs and circumstances of people who commit criminal offences as a result of a mental disorder. The law replaced indefinite detention with treatment and established a system of provincial expert review boards to consider the appropriate disposition for an NCR accused, including whether and when they could be “absolutely discharged” and no longer under the criminal law’s jurisdiction. The approach recognizes that those who commit offences as a result of mental illness are not morally culpable and that their need for treatment must figure prominently in any decisions that affect their liberty. Several years later in 2000, Ontario’s government enacted its sex offender registration law (Christopher’s Law) and the federal government followed suit in 2004. Both of these laws require registration of individuals who have committed certain sexual offences, regardless of whether they were convicted after being found guilty, or found not criminally responsible. Significantly, those found guilty may be absolutely discharged by the sentencing judge, in which case there is no conviction and no requirement to register (the first “exit ramp”). Further, even those convicted may be able to apply for a pardon or record suspension and get off the registry earlier than would otherwise be possible (the second “exit ramp”). Neither of these avenues is open to an NCR accused. In fact, even after an NCR accused has been absolutely discharged by the Review Board, they may remain on the registry for many years, or for the rest of their lives. The Appellant, CCLA and other interveners argued in this case that this amounts to discrimination and should be struck down. Fortunately, the Court of Appeal agreed.
The Court recognized that despite the important goals of sex offender registration legislation, there was no explanation for why those found guilty fared better than those found NCR. The key difference between the two groups was a mental illness or disability, a prohibited ground of discrimination under s. 15(1) of the Charter. As a result, the Court found that the registration schemes are unconstitutional as applied to NCR accused who have been absolutely discharged by a Review Board. However, in what has become a far too common practice, the Court suspended the declaration of invalidity for twelve months to allow the two governments to determine how to address the issue. CCLA will keep monitoring this issue.
You can read ONCA’s decision here and our factum here.
In R. v. Myers, the Supreme Court was tasked with interpreting a somewhat obscure Criminal Code provision dealing with review of pre-trial detention. The case has up until now received scant attention in the press or in the legal community. And yet, in its unanimous decision siding with the CCLA’s position, the Supreme Court may well have released a new Jordan, shaking up the bail system in profound ways. And thankfully so, given the lamentable state of pre-trial custody across the country.
Myers clarifies how to properly interpret s. 525 of the Criminal Code, a provision that gives accused persons detained pending trial an automatic review of their detention after 90 days. The provision has been inconsistently applied across the country. In most provinces, the “90-day bail review” generally took the form of a perfunctory check-in with the court, or was not even held at all based on an interpretation of the provision requiring the person in custody to first show that the delay in arriving to trial was unreasonable. The Supreme Court was asked to adopt such a “two-step” approach, placing a threshold onus on the accused. It rejected it.
The CCLA argued that no preliminary threshold needed to be met before reviewing whether a person’s detention remained justified. Parliament had already set out that threshold in express terms: 90 days. We made the case that the question the court needed to answer on a s. 525 review was whether, after having detained a person who is presumed innocent in a custodial setting for three months, we were still justified in withholding their liberty? The CCLA submitted that s. 525 was part of Parliament’s solution to the problem of induced guilty pleas: the longer a person spends in custody awaiting trial, the more likely they are to plead guilty. It also afforded a mean to prevent accused persons from spending more time in pre-trial custody than they would serve their sentence in the event of a conviction. Ninety days had to be understood as the point in time chosen by Parliament for a meaningful re-assessment of whether the pre-trial detention continued to be justified.
On behalf of a unanimous court, Chief Justice Wagner endorsed all of these arguments, explicitly quoting CCLA’s submission that “today, as before, three months is a long time for a person who is presumed innocent to be held in jail awaiting trial”. Ninety-day bail reviews are therefore intended to be mandatory and automatic – and need to be brought promptly by the institution with custody of the accused. The question that the judge must answer at a s. 525 hearing is whether the continued detention of the accused in custody is justified, within the meaning of s. 515(10). In determining whether the detention remains justified, the judge should consider the time that has elapsed — or is anticipated to elapse prior to trial — and, importantly, the proportionality of the detention.
The Court also took the opportunity to comment on problems affecting the bail system generally, stating that “delays in routine bail and detention matters are a manifestation of the culture of complacency denounced by this Court in Jordan, and must be addressed.” It made clear that release “at the earliest opportunity and in the least onerous manner” is the rule – pre-trial detention being the exception. This case is an important step towards correcting a broken bail system.
– Christine Mainville, LL.B., LL.M., Partner, Henein Hutchison LLP
How far can police officers go when initiating a “protective” arrest? Can innocent protestors be arrested even when they’ve done nothing wrong? Can the police make an arrest to try to prevent a potential breach of the peace? These questions and more are what’s at stake in the Fleming v Ontario appeal, being heard today at the Supreme Court of Canada.
Randy Fleming was arrested on May 24, 2009 in Caledonia, Ontario by 7 Ontario Police Officers. He was alone and engaged in a peaceful political protest, when he was forced off of a public road and onto private property. His arrest was ostensibly made on the basis of a common law police power that does not appear in the Criminal Code or any other statute; to arrest a person in order to prevent an “apprehended breach of the peace.” A breach of the peace can be harm or threat of harm to a person or property. “Apprehended breach” simply means that the police officer only needs to be reasonably sure there that a breach of the peace may occur.
In this case, the police were concerned that Indigenous protesters occupying the land that Mr. Fleming walked onto might resort to violence. During this “protective” arrest, Fleming was permanently injured by the officers.
The “ancillary powers” doctrine, according to the Ontario Court of Appeal, made Mr. Fleming’s arrest legal, even though he was not currently committing or even suspected of committing a crime. Ancillary powers are new police powers that can be created by judges at common law, based on an old British case. While using ancillary powers can be justified (for example, the police investigating apparent domestic violence after a 911 call for assistance is abruptly disconnected) the use of the power should be subject to rigorous Charter analysis. Especially in cases like Mr. Fleming’s, where the power is used to suppress lawful free speech.
CCLA is troubled by granting ill-defined, common law police powers that allow the police to deprive people of their fundamental Charter rights to liberty, security of the person, and freedom from arbitrary detention. We are intervening to make sure that they are appropriately limited.
Ancillary common law powers of the police have been used to justify more than just preventative arrests. Warrantless searches, spontaneous road blocks and detention of pedestrians for the purpose of investigation, all fall within the ancillary powers doctrine. The power to arrest for apprehended breach of the peace requires special attention, as it is used against persons who have neither committed an offence nor threatened to do so. It is also resistant to review since, unlike an arrest where charges are laid, the circumstances that give rise to the detention almost never come before a court.
Mr. Fleming’s case is exceptional, then, as it provides a rare opportunity for the highest court in Canada to rule definitively on the limits of the power to arrest for apprehended breach of the peace. The immense societal cost to our freedom of expression that stems from this ill-defined, uncodified police power may finally be appropriately curtailed if the Court requires a rigorous Charter analysis.
CCLA has taken the position that the exercise of ancillary powers by police should be subject to a Charter analysis as proposed by Supreme Court Justices Binnie, LeBel and Fish in their concurring reasons in Clayton, decided in 2007. Without a more robust test in place, the ancillary powers have been used to justify a number of incidents of police misconduct, including during the G20.
CCLA will also ask the court to clarify that when an arrest for apprehended breach of the peace is made, the arrestee should be released immediately, as soon as the risk of the breach of the peace has passed. Prolonged detention simply cannot be justified in these circumstances.
CCLA’s intervention in Fleming is part of our ongoing work to fight for your rights to be free from overbearing police powers, and to protect the rights to free expression and peaceful assembly. We thank our counsel Sean Dewart, Adrienne Lei and Mathieu Belanger for representing us pro bono, and look forward to seeing how the Court addresses the important issues this case raises.
-Teddy Weinstein, Articling Fellow
It was a bad day for equality but a good day for teachers, when Ontario’s Divisional Court dismissed the application brought by CCLA and Becky McFarlane challenging the government’s decision to repeal the 2015 sex education curriculum and replace it with content from 1998. We intend to continue the fight and will be seeking to appeal the decision.
The good news is that the Court provided clear and unequivocal confirmation that teachers can teach about topics contained in the 2015 curriculum that are absent from the interim version that is currently in place. The missing content relates primarily to issues around consent, sexual orientation, family status and gender identity. Despite the government’s tough talk when the interim curriculum was first released – and their decision to institute a snitch line and encourage parents to report on teachers where they had “concerns” – the position of the government in Court was much different. As the judgment makes clear, the Minister’s lawyer confirmed that “as long as a teacher meets the learning objectives set out for that grade in the 2010 Curriculum, a teacher may address topics that go beyond those expressly set out in the 2010 Curriculum to meet the needs of a given class or student. Those topics include the topics in the 2015 Curriculum that are not found in the 2010 Curriculum.”
This was a significant concession for the government to make, and it certainly upset some of those who were so opposed to the 2015 content and supportive of the government’s decision to send the province’s kids back to the 1990s. Indeed, the President of the Elementary Teachers’ Federation of Ontario (ETFO) said that the concession made the case “a victory for ETFO and others”. ETFO had also challenged the government’s decision, albeit on grounds different from the CCLA.
The bad news? For students and parents, today’s decision is so disappointing. It means that a transgender student may sit in a classroom and hear nothing of themselves reflected in the lesson. It means that a student with a queer mom, like Becky’s daughter, may hear nothing about queer families. What teachers may do is different from what they must do, and that is the importance of a provincial curriculum document. It sets the baseline, and CCLA’s argument has always been that, regardless of what happens in classrooms, the provincial government’s decision to remove content from the curriculum sends a message loud and clear. The message is one of exclusion and inequality. The ugliness of today’s decision is that it does nothing to disabuse Ontarians of that message. We will have to hope that the Court of Appeal will take up the call.
Of the many tools at the disposal of a government in times of profound uncertainty, the least used yet so powerful is that of a “reference” to its highest court. The federal government has had resort to the Supreme Court of Canada (“SCC”) for such thorny issues as Quebec secession and same-sex marriage; provinces called references on the patriation of the Constitution, eventually appealed to the SCC. Canada’s freshly minted Justice Minister David Lametti could bring to Cabinet for their approval, pursuant to Supreme Court Act, R.S.C. 1985, c. S-26, s. 53(1) or (2), a reference to the Court, regarding the proper constitutional relationship and protocol between the Prime Minister, Cabinet and Attorney General on a Criminal Code prosecution, plus how that relationship attracts solicitor-client or litigation privilege, if at all.
Why call a reference? Because Canadians don’t know what to believe. The Justice Committee hearings underway will not result in any answers, only more questions. But it turns out that the questions raised invoke constitutional conventions, the existence and scope of which the Supreme Court has opined upon time and again.
Last week, before the Justice Committee, the Privy Council Clerk cited a constitutional convention he called the Shawcross doctrine, to excuse executive interference with SNC Lavalin’s prosecution. (The doctrine is the AG’s to use, in fact, not for the PMO or PCO to abuse, but that convention’s scope could be cleared up by the Court).
Resignations have fuelled the scandal, the most significant of which is that of a Cabinet Minister: former Attorney General, Jody Wilson-Raybould. Unsolicited Cabinet resignations are constitutional moments of government dissent by a Member of Parliament, whose expression of dissatisfaction cannot be more powerfully put than departing from the Executive Council on principle. The PM’s consigliere has also resigned from the Prime Minister’s Office, heightening the political intrigue but not of significant constitutional relevance, as he denied any wrongdoing.
Meanwhile, a charade of censorship purports to gag the former Justice Minister, based on faux claims of privilege — namely, solicitor-client privilege and litigation privilege — owed by Hon. Ms Wilson-Raybould to the Prime Minister. This is the shakiest case for self-imposed suppression in memory. (Not that we don’t take legal privileges very seriously at the CCLA. In 2015, we went to the Supreme Court of Canada to fight anti-terrorism laws that compromised solicitor-client privilege. The Court agreed, upholding the constitutional protections attached to solicitor-client privilege, declaring it a hallowed principle of fundamental justice).
This only underscores the caution against abusing such privilege for political purposes, by denying transparency and accountability in the name of protections intended to protect due process, not political reputations (so, for example, the late Eddie Greenspan was able to defend himself after his client Conrad Black challenged Greenspan’s unimpeachable integrity).
It’s hard to argue that solicitor-client privilege applies where there is no solicitor involved. It turns out that Ms Wilson-Raybould let her membership lapse with the Law Society of B.C. So she was a non-lawyer Attorney General. The Law Society this week flatly ruled out that privilege as applying to her because she lost her legal privileges. So that leaves litigation privilege, which does apply regardless of her non-solicitor status. It protects particular communications by particular people regarding the prosecution of SNC Lavalin. But that privilege was waived long ago by the Prime Minister and his former Principal Secretary when they both publicly stated their version of what was said. Then to further complicate matters, the former AG gave her side of the story before Cabinet this week. While that deliberation is protected by Cabinet privilege (often observed in the breach, it must be said), the recitation of potentially privileged information in a political, rather than a legal context, to a roomful of people who are not parties to the litigation, ends whatever litigation privilege attached to that information, arguably.
Nevertheless, it remains a live issue, as of this writing, with little chance of being resolved, absent an official ruling, which apparently cannot be found within the executive ranks. One of the questions for the Supreme Court of Canada to rule upon, then, would be: where and when does litigation and solicitor-client privilege apply, if at all, between Attorney General and Prime Minister? Furthermore, does having a non-lawyer Attorney General change that?
Canadians are wondering what’s going on in Ottawa, unsure whether this controversy is worth the ink being spilt. What’s a PMO, exactly and who is Gerald Butts? They did what, for who, and why is that a problem? Absent a criminal trial, there will be no definitive answers forthcoming as to how the system is supposed to work, when a major Canadian employer is being prosecuted for a crime, while very publicly seeking, nay campaigning, for a remedy unavailable to the hundreds of thousands of people prosecuted every year in Canada.
People deserve a justice system they can trust but I doubt most elites know its true reputation among the hoi polloi. For part of my adult life, I never imagined the Canadian justice system as being capable of corruption. When I began working with indigent criminal defendants, however, I learned that most of them assume the system to be rigged; that powerful people operate levers that punish enemies and reward friends. The masses are skeptical, no doubt, sharing neither my former adoration nor defendants’ hatred of a system that feels like a juggernaut, a conviction machine, where the presumption of innocence is a joke. The PM and his supporters are perhaps getting that feeling, at last, themselves. Our justice system today is nothing if not merciless.
Calling a reference to the Supreme Court of Canada would permit a full airing of these issues without the attendant soap opera politics underway, with greater certainty being brought to the important principles of quasi-judicial independence — which, I should add, is interpreted inconsistently across Canada, depending on the province and sometimes even within a province or territory. A reference could ask the questions: who can discuss what with the Attorney General about a Criminal Code “remediation agreement” requiring her quasi-judicial consent? What communications are privileged and under what circumstances might that privilege be lost?
The principle at stake is nothing less than the independence of the justice system, and just how exactly the different branches of the state are supposed to function during a criminal prosecution. The judicial branch presumably shouldn’t be hearing from the PMO, ever, about anything other than budgets and appointments. The executive branch — the PM and Cabinet — gets involved with prosecutions never or sometimes or … what say you Supreme Court of Canada? Lastly, what is the proper relationship between Cabinet and Attorney General, this strange constitutional animal that’s an elected politician appointed to her position in Cabinet by the Prime Minister, who has both policy duties (cannabis legalization, DUI laws, jury law reform) and quasi-judicial duties (criminal prosecutions and constitutional litigation). What is the statutory law and what constitutional conventions apply to all these acronyms?
All of this boils down to whether and how the Attorney General, in exercising her quasi-judicial duties, consults with the Executive branch of the state, in her determination of the public interest. That determination is a decision-point for any quasi-judicial officer in the conduct of a prosecution. The evidence, facts, and law are considered, plus the public interest. We at CCLA believe that, unless they put it all on the record (in writing, via Canada Gazette, or in Parliament), there should be no more contact between Cabinet and the Attorney General on such matters as they would have with a judge, if only to confer the necessary appearance of independence along with the substance of it. In the alternative, the UK constitutional practice suggests that the Attorney General, who does not sit in Cabinet, may solicit input from Cabinet Ministers on salient points, but should not be pressured by anybody, nor receive unsolicited advice.
There are alternative views, which makes a Supreme Court of Canada reference all the more necessary. The federal Director of Public Prosecutions will have a view, as may other provinces, who might rightly wish a bright line, given that they prosecute plenty more than the feds. On the other hand, perhaps some civil society groups wish that there were more Executive interventions in the name of remedying systemic discrimination. The Chamber of Commerce may have something to say about the impact of all this upon business and the economy. Something tells me SNC Lavalin would seek standing.
Former Ontario Attorney General and Chief Justice Roy McMurtry explained much of this when he rose in the Legislative Assembly of Ontario in 1978 to explain why the Crown would not prosecute a (resigned) P.E. Trudeau Cabinet Minister for alleged criminal wrongdoing. It was an officious act that bolstered public confidence and opened up the decision to complete transparency. The same goals might be accomplished, to the betterment of the administration of justice, through a reference to the Supreme Court of Canada, on Executive Council-Attorney General communications regarding a Criminal Code prosecution, and any legal privilege attaching thereto.
The insider’s objection to the reference idea is timing. On the one hand, the autumn election does not make the issue moot; it’s of lasting significance. On the other hand, the government realistically won’t call a reference unless they’re betting that they can benefit from it pre-election, believing their position to be defensible. However, there is nothing stopping the Governor in Council (Cabinet) under the statute from putting timelines in place. It is open to the Court to refuse to hear a reference, and they may refuse to meet the requested timelines, although I would be surprised if a reasonable timeline was ruled out. Other countries, like Israel, have a Supreme Court that will sit on a moment’s notice, literally, when called upon for guidance, just as the US Supremes turned around Gore v. Bush with alacrity. If Canada cannot seek a reference and get an answer to these pivotal constitutional questions in a few months, Canadians rightly have to wonder, as we often do at CCLA, just whose justice system this is.
The Ontario government’s decision to scrap the 2015 sex ed curriculum and replace it with content from 1998 has been the subject of significant controversy, debate, and more than one legal challenge. In January, the CCLA and our co-applicant Becky MacFarlane were before the Ontario Divisional Court arguing that the decision to revert to the old curriculum violated the right to equality and was an arbitrary decision that should not be upheld. We are waiting for the Court’s decision, as are Ontario’s students, teachers and parents.
To us, the government’s reasons for reverting to the 1998 curriculum are clearly grounded in discriminatory attitudes towards the LGBTQ+ community, despite its statements about respecting parents and listening to “the people”. The government’s own purported reason for the change was that the 2015 curriculum was the product of an inadequate and flawed consultation process. As a result, the government engaged in what the Minister of Education has described as “the largest-ever consultation on education in Ontario’s history”. Early reports about the consultation process demonstrated that there was a huge amount of support for the 2015 sex ed curriculum and little appetite for a reversion to the lessons of the 1990s. However, Premier has already attempted to cast doubt on the consultation process – the one his own government designed and implemented – by saying that “certain groups” flooded the process in its early days and may have skewed the results.
As an organization that is fiercely committed not only to equality but also to government accountability, we wanted to know how the government would take what they learned through the consultation and use it to develop the next curriculum. We had thought that a government that gloats about the extensiveness of its consultation process would want to show off the results. Surely, a government “for the people” would be responsive to the people. At a minimum, the people would be allowed to know what the people said. Turns out we were wrong.
Shortly after the consultation process closed in December of 2018, I made an access to information request to the Ministry of Education, asking for the results or data that the government gathered through the consultation process, particularly for the sex ed issue. The government designed the consultation process in a way that makes requests for access complicated. People wishing to share their views with the government could respond to a targeted survey, but could also send an email, submit a form with lots of spaces for open text, and participate in a telephone town hall. The consultation had no obvious way to control for multiple submissions from the same individual or even to assure that those participating were people residing in Ontario. Apparently, the government received over 70,000 submissions in one form or another – so there would be a lot of information to go through.
I worked with accommodating staff on the Ministry’s Information and Privacy team and pared my request down to weekly summaries of the consultations that Ministry staff had created. This would make the request easier and cheaper to process since it would not involve staff going through tens of thousands of pages of submissions or redacting personal information.
Now, however, the Ministry has denied my request on the basis that the summaries are “Cabinet records” under section 12 of Ontario’s Freedom of Information and Protection of Privacy Act. Since the summaries are purportedly going to Cabinet for discussions about future policy directions, the Ministry argues that they cannot be turned over under access to information laws. The logical conclusion from this position is that if consultations with “the people” will inform discussions in Cabinet (as they should), the people can’t know what the people said.
Why does this matter? A consultation process doesn’t mean that the public gets to decide on policy, but if it is a meaningful one it should allow the public to understand what the government heard and how it arrived at its ultimate decision. Without robust access to information, politicians can spin the results. The Premier’s statement that “certain groups” skewed the process is one example. More recently, the Minister of Education has said that the consultation process showed a concern that the sex ed curriculum did not do an adequate job of teaching about consent. Of course, the 2015 curriculum contained a great deal more content on consent than the 1998 curriculum, but it appears even the 2015 curriculum was considered inadequate by many participants. This is useful information – and apparently, we can look forward to “further updates” on the findings from the consultation by the Minister. But we can only see what the government chooses to tell us, not a summary of what all participants had to say. We are not allowed to see the whole picture, probably because it may show us something that the government prefers we don’t see. We will be left to wonder what the government isn’t telling us, and which people this government is really for. If the point of the consultation was to increase public confidence, shielding the consultation results from public scrutiny directly and fatally undermines this goal.
We’ll be appealing the Ministry’s decision to shield the consultation summaries from disclosure, and will keep you posted on our progress.
A teacher who argued at the Supreme Court that his secret filming of girls’ cleavage wasn’t voyeurism because schools are public places where students are seen and even filmed by security cameras all the time has lost. It’s hard not to feel that common sense has prevailed in the case of R v Jarvis; the decision released February 14 by the Court is a resounding victory for privacy rights for students, and more broadly, for people in Canada.
CCLA argued that students should have privacy rights over their bodies at school—even if the school is a quasi-public space, even if there are also security cameras, it’s simply wrong to use those facts to argue that our young people have no reasonable expectation of privacy when someone points a spy camera at their cleavage. And we took it further, arguing on principle that the fact that any person might be seen or even recorded in a public space cannot automatically be allowed to negate our rights to privacy. Today, the Court agreed, stating unequivocally that “Privacy, as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.” This is good news for all Canadians who are increasingly subject to surveillance in public and quasi-public spaces.
The facts of the case go like this: Ryan Jarvis used a camera pen inside the high school where he taught to surreptitiously take videos of female students and a female teacher – mostly at chest-level. He was charged with a voyeurism offence. At the Ontario Court of Appeal, he was acquitted because the Court found the videos were not taken in circumstances in which the students had a reasonable expectation of privacy. Why? Because the victims were filmed by the accused in public areas of the school where they could be seen by others – and where they were also recorded by security surveillance cameras.
CCLA took the principled position that an “all-or-nothing” approach to privacy in public is wrong—and a major departure from past legal decisions which have, in contrast, affirmed that even in public people retain some right to privacy. Further, schools are places we legally require our children to attend. This makes the duty to safeguard the privacy, bodily and sexual integrity of this vulnerable group on school premises an imperative.
When we put surveillance cameras in our schools, the reason most often put forward is to keep our young people safe. It’s the height of hypocrisy to argue that the presence of those cameras removes students’ expectation of privacy when someone is taking surreptitious pictures of girls’ and women’s bodies. When we think about a reasonable expectation of privacy, we have to take a principled approach, look at the totality of circumstances, and remember that privacy protects people, not places. The Court today agreed, rejecting the idea that a reasonable expectation of privacy is purely location-based, and laying out a non-exhaustive list of factors that may figure in an analysis, including a number of factors CCLA identified in our factum: the nature of the location, the manner in which the observation or recording is done (including the use or capabilities of technology), the subject matter/nature of the intrusion, the rules or regulations that govern the space, the relationship between the observer and observed individual, and the personal attributes of the individual who was observed or recorded (including whether the person is a child or young person).
This “totality of circumstances” approach, as we advocated, is the right way to ensure that the objective of the voyeurism offence—to protect individuals’ privacy and sexual integrity, particularly in the context of evolving technology—is fulfilled.
More broadly, the rights of every person in Canada who is regularly observed and potentially caught by the lens of a camera as soon as they walk down a public sidewalk have been affirmed. If the mere potential of observation or recording had been deemed to negate our privacy rights, as Mr. Jarvis’s legal team was essentially arguing, then we would have had a very big rights crisis extending far beyond school hallways and classrooms. Luckily, the Court firmly rejected this argument and confirmed their commitment to a contextual, normative approach to privacy in the face of technological change.
CCLA is represented by Jonathan Lisus and Zain Naqi of Lax O’Sullivan Lisus Gottlieb LLP.
Read CCLA’s Factum here.
Read the Supreme Court’s decision here.
It shouldn’t come as a shock to anyone that the collection of our private, personal information by companies is entirely out of commercial self-interest–but I read a couple of news stories not so long ago that reminded me we need to call it out. Why? Because there are increasing signs that the corporate PR is working, that many of us are buying into the fiction that some mildly curated content is a fair exchange for the granular details of our lives, be they trivial or intimate.
The story was about two bereaved women who each suffered from marketing targeted to them as expectant or new mothers after the loss of their babies. It came out very near the time I also read a Guardian interview with Shoshanna Zuboff, a Harvard business prof, discussing her long-awaited book about the dominant business model on the internet, “The Age of Surveillance Capitalism”.
Juxtaposed, these two things encapsulate much that is wrong with the ways our personal information is being collected, used, and abused by the companies we deal with both online and in the physical world. It’s worth noting that on and offline is a distinction which is rapidly becoming meaningless when it comes to data collection, as bricks and mortar stores are actively leveraging new technology like facial analysis to collect data about us too.
The first story has a title that kind of says it all: “‘No right to make money off us that way’: Woman targeted by baby product marketing after miscarriage.” The article describes the experience of two women. The first shared her contact information and due date with a maternity store she liked and trusted but reportedly wasn’t told that her information would be shared with other stores and companies who sold baby products. She miscarried, a sad loss that she was still dealing with when a box of baby formula samples arrived at her door from a company she’d never done business with.
The second woman recently wrote an open letter to “tech companies” berating them for being quick to target advertising towards her when she shared her excitement over being pregnant on social media but failing to stop even though she also posted about her heartbreak when her son was stillborn.
Marketers might classify this as “personalization”–the promise that in exchange for information that has value to marketers, we get things we want instead of things we don’t—ads, recommendations, coupons, whatever. When we’re asked for permission to collect and share our information, on a website, app, or store loyalty program, the language used to convince us is about relevance, about personal benefits. The last time I said no to such a pop-up permission box, it warned me sternly that I was choosing to see ads that might not meet my needs. The tone was very much like a warning a stern parent might give a child who was choosing to be bad instead of good.
These women’s stories lay bare the lie that these practices are truly about us and our needs or desires. If they were, someone should have made sure to explain to the expectant mother sharing her due date that the store would share or sell her information to other baby-oriented companies and given her the option to say no. If they were, the same tools used to compile information about the woman sharing her joy about being pregnant and sell that information to interested parties would be designed to update those lists, maybe even issue a proactive warning to purchasers of that data, when she posted about losing the baby.
But that latter point raises another critical question—would it really make it better if companies collecting information about us as we browse, post our thoughts, or shop online paid even closer attention than they already do? It might make the promises of personalization feel more genuine, but is that ask, which is essentially the one the bereaved mother made in her letter, the right one to make or does it just open up the possibility of even better real-time tracking of our online/offline behaviour? I’d argue the latter. It makes me sad to think that we’ve become so acculturated to the idea that someone else deserves to use the information we create when we socialize online that asking for better surveillance feels like a reasonable option.
And here we come to the link to surveillance capitalism. As Professor Zuboff explains it in her book, surveillance capitalism is essentially the monetization of the data that we willingly share, but also the data we create as we navigate life online—the “data exhaust” that offers insights into how we currently behave, and with enough of an accumulation and a bit of analysis, predictions about how we might behave in the future.
Her research makes it crystal clear. It’s not about benefiting us, it’s about making money—which of course is what capitalism is all about. And it’s a lot of money at stake: Alphabet (Google’s parent company) reported annual income in 2018 of 30.74 billion US dollars (a 142.74% increase over 2017). Further, at this point it’s not just the data goliaths like Google or Facebook who operate on this model, it’s essentially every single internet of things device (products labelled “smart” “networked” or that pernicious word “personalized”) that is designed to make money when you buy it, and then more money as you use it and contribute to a data stream that the company can use or sell, or both.
These practices started because we weren’t paying attention, and continue because we haven’t had the will, or created the regulatory muscle, to stop them. Businesses, even governments—including the Canadian government, in materials from the recent federal consultation on data strategy—are working really hard to convince us that our data is the price we have to pay to support innovation and create ongoing economic opportunities. They sometimes compare it to the “new oil” but that metaphor is profoundly misleading. Data is not a natural resource created by the decay of dead organisms over time, it is of us and about us, created as we live our lives. Data is not created passively by natural processes over time, it is created actively when we interact with systems designed to scoop it up, and with companies who deliberately claim the right to use it–and are winning the battle to convince us they deserve it.
Making people complicit in their own surveillance, as an ongoing project on big data hosted at Queen’s Surveillance Studies Centre points out, raises “ethical questions, political concerns and moral challenges” that go well beyond data and privacy to “penetrate the core of modern democratic principles.” The pain of the two mothers, faced with harsh reminders of their loss, serves as a sad but valuable warning that we lose more than we gain when we fail to question the systems that are not just eroding our privacy rights, not just seeking to manipulate our behaviour, but telling us it’s all for our own good. We need to recognize that claim for the swindle it is because it’s causing demonstrable harm. We deserve an online world that respects our rights and is structured around fair information practices that allow non-exploitative business to thrive while also benefiting us, as consumers, citizens, members of society. It’s time to stand up against the algorithmic wiretapping of our personal lives.
As the SNC-Lavalin prosecution controversy unfolds, Canadians are digging into a part of our constitution that operates everyday, in hundreds of courtrooms across Canada. Every five minutes in this country, somewhere, in some court, Crown Attorneys (lawyers who are considered agents of the Attorney General) announce their decisions, without any fanfare, often in a code-speak that is comprehensible only to the bar and bench, about how the Crown intends to proceed with a prosecution. They will elect to proceed by way of indictment (more serious) or summary (less serious) offence, depending on the particular charge. They will ask that the “information be withdrawn,” or say something like: the Crown is dropping the charges. Almost always those decisions are simply an expression of the particular prosecutors’ views. Sometimes the Crown Attorney (synonymous with prosecutor or Crown) is stating a decision of her superior.
But mostly prosecutors will make submissions, arguments, make their case, on behalf of the Crown. Again, these submissions may be driven from decisions made by superiors, pursuant to the Crown policy manual (published online in Ontario). In some provinces, including Ontario and BC, there is a protocol for the review of a Crown’s proposed position by his or her higher ups. With the withdrawal of a very serious charge in a controversial matter, in Ontario, a panel of several Crown Attorneys will sit, as if a court of law. For they are, in a way, a court of law.
Prosecutors or Crown Attorneys are deemed quasi-judicial officers, under our constitutional system. We inherited that system from the UK. Most commonwealth countries share the outlines of it. The US in many way is very different, and in other ways is not that different. The greatest difference in the US, is that their state judicial and quasi-judicial officers are elected to their specific office or District Attorney or Attorney General. In Canada, the term ‘quasi-judicial’ implies all the independence that we expect from judges here. Our judges and our prosecutors are not accountable to an electorate. They need not be popular and indeed we don’t want them to base their decisions on what pleases the masses. They are there to exact justice, without regard to political considerations.
That’s the judicial part. The ‘quasi-’ part refers to the fact that they are advocates too. This is to say, some of what they do is judicial, and some of what they do is not judicial, but rather adversarial. Accordingly, they withdraw charges where there is no reasonable prospect of conviction: that’s a judicial function. In fact, judges cannot withdraw charges; only the Crown can do that. The system is designed to avoid miscarriages of justice, to avoid convicting the innocent, rather than being designed to punish the guilty. It’s designed that way because of the civil liberties built into our system, wherein there is a presumption of innocence.
This quasi-judicial function occurs every day, as charges laid by police are dropped by prosecutors, while others remain (eg, the Crown drops a serious charge of trafficking and the defendant pleads guilty to possession) and in some cases, after some evidence is found to be inadmissible, the case appears to have collapsed, requiring the Crown to drop the charges. Similarly, the decision to proceed by way of indictment, requires independent judgement. Otherwise, there would be no point in giving the Crown that discretion. Beyond those (and a few other) quasi-judicial duties, the Crown then gets to argue its case, present the evidence, in such a fashion that would point the judge or jury towards a finding of guilt. But Crowns aren’t said to win or lose a case. They’re just supposed to put the case forward and let the court decide.
All that sounds like BS no doubt. It’s the ideal, you might say, not the reality. I personally have a perspective on this based on experience, and some knowledge of the law. Whether the system works as it should is obviously a big political question, in the eyes of the beholder. My own view has evolved over the years.
Leaving aside the critique or editorial commentary on the justice system, this much is true, about the law. Prosecutors have special legal powers that other lawyers do not have; just as police have special powers that nobody else has in Canada. The power to investigate, search people and property, and seize property too; the power to use force legally, even lethal force; the power to lay a criminal charge against someone. All those police powers bring with them special responsibilities, and in turn police get different treatment in the criminal law. If you assault me, you get charged with a less serious crime than if you assault a police officer. Similarly, if you try to mislead me, it is of no legal consequence, because I have no power. But if you mislead a police officer undertaking an investigation, that’s a crime: obstruction of justice.
Criminal defence lawyers often have to advise their clients to be very careful when being questioned by the police. There are rights to to avoid self-incrimination, but there is no right to interfere with an investigation. I’ve had clients who were arrested and charged with obstruction of justice by answering “I dunno” to a police officer asking where her boyfriend was. “I dunno” can equal obstruction of justice. There are flimsy, wasteful, stupid charges like this littering our justice system today.
The point remains, however, when dealing with a police officer, that one should be on guard that you don’t do something that will give rise to criminal liability. Police officers are also sometimes called quasi-judicial officers, as such, because their decision to charge someone is supposed to be independent, not based on their personal opinion of you, but their professional assessment of the evidence.
The same is true of Crown Attorneys. There are specific criminal charges that arise when one messes with a prosecution. Obstruction of justice, breach of trust, abuse of process, to name three Criminal Code offences. Defence lawyers are rightly permitted to make their best case to a Crown. No doubt SNC-Lavalin sent many of their criminal defence counsel to make presentations to the Crown Attorneys on their matter. But if you or I approached those same Crown Attorneys, with the intention of getting special treatment for them, in a fashion that would interfere with the justice system: well, that there is a crime.
I know of a provincial member of parliament who made the grave error of speaking with her local Crown Attorney about the prosecution of her family member, cajoling the prosecutor with a sob story and some humour and neighbourly charm. That was the end of her political career. She was thrown out of caucus after pleading guilty, and receiving an absolute discharge, for obstruction of justice, contrary to the Criminal Code.
The same special powers apply to the Attorney General, who is also a quasi-judicial officer. The A.G. is just like a prosecutor, formally, because back when we became the Dominion of Canada, he was the main prosecutor. Then eventually he appointed agents to do his work. These agents were called Crown Attorneys. Today, there are thousands of federal Crown Attorneys and about a thousand provincial Crown Attorneys in Ontario, for instance. Today, the Attorney General is 90% politician, 10% quasi-judicial officer, although that’s an arbitrary number. For some, the split is more even. For very few, in the contemporary era, they are both leading barristers and politicians.
The reality today, therefore, is the opposite of the formal legal structure. The AG today is mostly a political policy-maker and a spokesperson for what the Crown Attorneys do, even though they are formally the agents of the Attorney.
But it remains the case that the Attorney General, by law, has special legal powers. Some of them are actually in operation, such as the need to consent (or not) to Dangerous Offender Applications by prosecutors. Some of these powers are delegated to criminal law experts, such as the Chief Prosecutor or the Deputy Attorney General, to proceed with a direct indictment, for example.
Or, thanks to a change to the Criminal Code made in a budget bill (a vote against being a vote of non-confidence in the government, as Joe Clark learned), a ‘remediation agreement’ could be entered into by a corporation, at the election of the Attorney General of Canada. It’s an odious option that lends itself to a two-tier justice system (but that’s for another day). The point is that the AG today has very few practical powers to change the direction of a prosecution, but there are a few obscure powers nonetheless left in the Code.
Jody Wilson-Raybould had just such a power to affect the prosecution of SNC-Lavalin. What she could or could not have done doesn’t matter: the point is that she had that power and her successor still does today. The allegation made by the Globe & Mail is that someone in the PMO did what the aforementioned provincial MP did: interfere with a prosecution.
Just to state the obvious: the Prime Minister has the ultimate power determinative to the Attorney General’s privilege of holding that office. The PM has the power to appoint, shuffle or fire an Attorney General. So in fact, efforts by the PMO to effect the prosecution by accessing the Attorney General herself is a far more culpable circumstance than if a local politician tried to nudge a Crown Attorney. The local politician has no actual power to hire or fire the prosecutor. But the Prime Minister has more than formal powers over his Cabinet. The PM has de facto power over Jody Wilson-Raybould. In fact, he exercised it when he removed her from one Cabinet post and placed her into an another one. The question is whether one of his officials attempted to wield that power by talking to her about what to do with the prosecution of SNC-Lavalin.
Such a conversation may not have happened. Thus far, we just don’t know. But the very fact that the conversation happened, if it happened, could trigger a police investigation. It may be that no line was crossed, but one has to ask: why on earth would someone in the PMO walk up to that line, or even enter the room on the first place, when one false move could give rise to criminal liability and the fall of a government?
I have a theory. My theory is that these allegations, if true, arise from the de-lawyering of the political class in Canada. That is a very good thing, in that non-legal perspectives better reflect that of the electorate. No longer do lawyers dominate the elected House of Commons, nor the political staff for Cabinet Ministers, the PMO included. Trudeau himself is the second ever PM who is not a lawyer. To repeat, this has enormous benefits to the public interest.
You can see, however, another consequence. It used to be that Hospital Presidents were expected to be physicians, until it become obvious that financial, fundraising and managerial experience was more important than medical experience, when it came to running a multi-million dollar operation. But there can be a disconnect, sometimes, between the two professions and perspectives.
If the Globe story is right, then there was clearly a disconnect over the SNC-Lavalin prosecution. If that PMO staffer or staffers were not lawyers, then they hadn’t gained the knowledge and experience akin to a surgeon running a hospital. The problem is that this PMO official may have unwittingly stumbled into open heart surgery and just killed some careers, and maybe a government. Maybe the PMO was simply ignorant or reckless, and the elements of the offence of obstruction of justice are not made out. That is actually quite likely.
But there may be a reason that the PM is currently bobbing and weaving around this very question. He has now been shown that a crime may have been committed, enough so that a criminal investigation may happen, and someone may get charged. Or, it may turn out, that there is simply no evidence that would necessitate the laying of a criminal charge. But I would be surprised if the police aren’t investigating as we speak, as much as I never wish a criminal charge upon anyone, and mindful that we are all innocent until proven guilty.
All of which brings me to one of the reasons why CCLA has entered the fray on this matter. We know that this government has been no booster of civil liberties; we are regularly fighting them in court directly through applications or via interventions before appellate courts, or through advocacy before legislative and Senate committees. This government has been particularly punitive on due process and punishments. The legislative record speaks for itself, and is indistinguishable from their Conservative predecessors, who made no bones about being ‘tough on crime.” So now that a Liberal PMO may face the wrath of the criminal justice system, they are facing a reckoning. (Yes, I have personally had such a reckoning, and it changed my perspective, turning night into day).
The PM and PMO are feeling the juggernaut that gets inflicted upon people with far less power and privilege than they have. They ought to consider, in this moment, what it would feel like, if they didn’t have access to the best and brightest lawyers; and, if like most criminal defendants, what it would be like if they were mentally ill, or addicts or otherwise disabled, poor, downtrodden, ashamed, utterly alone. One can hope that this government might reconsider its ignorant and merciless perspective on the criminal justice system, accordingly.
The Supreme Court’s decision today in R. v. Bird is a disappointing – even devastating loss – for Canadians who care about freedom and justice and who believe that a right without a remedy, is no right at all. The decision demonstrates a Court that is out of touch with the realities faced by individuals who are incarcerated or who are beginning the hard work of reintegrating into society after serving a jail sentence.
As recently reported on our blog, R. v. Bird considers whether a man can be imprisoned for failing to follow an apparently unconstitutional order and, in particular, whether he can be precluded from even challenging the order because he failed to do so at the time it was imposed. Mr. Bird was released from prison after serving his sentence, pursuant to a long-term supervision order (LTSO). One of the conditions was that he reside at a “community correctional centre”. In essence, Mr. Bird was released from jail – to another jail. He breached the condition that he reside in the community correctional centre (he left) and sought to challenge it when he was charged with the breach.
The majority of the Court held today that Mr. Bird is barred from challenging the order during the trial for its breach because, in effect, he failed to challenge it “the right way” when it was initially imposed.
The majority decision favours form over substance and ignores the enormous hurdles that exist for offenders who wish to challenge aspects of their LTSOs, and other orders imposed by the Parole Board and Correctional Services. The majority’s big concern is that individuals will “breach first, challenge later”, so they try to point out the ways in which Mr. Bird could have challenged the residency condition earlier. The majority suggests that Mr. Bird could have written to the Parole Board asking them to vary the condition – even though it is the Parole Board itself that imposed the condition. It also states that he could have challenged the decision by seeking judicial review at the Federal Court, but recognizes that this may not have provided an effective remedy (given how long it can take to get matters heard before the Court, the conditions he challenged might have been met and expired by the time it was heard). Finally, the Court says that Mr. Bird could have brought an application for habeas corpus in a provincial superior court, and seems to suggest this is a simple and quick remedy that a self-represented individual can easily manage. In each instance, the Court seems to drastically underestimate the difficulties associated with initiating these procedures, particularly if you are being held in custody with significant restrictions on your liberty.
The concurring judges disagreed, finding that Mr. Bird should not be barred from raising constitutional arguments simply because he didn’t challenge the residency condition through “one of the three imperfect avenues” on which the majority relies. The concurring judges are particularly concerned because breaching a condition of an LTSO could result in up to ten years in prison. However, while the concurring judges would have allowed Mr. Bird to challenge the residency requirement, it would also have held that the condition did not violate his s. 7 Charter right to life, liberty, and security of the person. This pyrrhic victory for Mr. Bird is a second devastating blow since he and other offenders are told that when your jail sentence is over, you may still have to stay in jail. Anyway you slice it, Mr. Bird gets the very short end of the stick – and possibly a long jail sentence.
It is important that courts guard against being used in an abusive way – and the “breach first, challenge later” concern is a genuine one. But in this case, with respect, the majority of the Court stuck its collective head in the sand, and ignored the challenges faced by those who are incarcerated or just beginning to reintegrate into their communities. Rather than facilitating reintegration, the decision sets released offenders further back, and we are all worse off as a result.
You can read the judgement here and our factum here.
Gregory Allen was placed in solitary confinement because he is in a wheelchair. He was held in solitary for 412 days because of his disability. This was unethical, unlawful, and wrong in a number of ways. In the result, when Mr. Allen filed a human rights complaint, CCLA applied for and was granted leave to intervene in order to raise with the Tribunal some of our very serious concerns.
Solitary confinement is a harmful practice that can cause anxiety, loss of control, suicidal ideation and many other devastating harms.
These harms are greatly exacerbated and can become irreversible and permanent in the case of prolonged or indefinite solitary. Prolonged solitary is defined under international law, and increasingly in Canada, as any period of solitary exceeding 15 days. Mr. Allen was held in solitary for 397 days beyond this period.
Given the extreme, long-established and well-known harms caused by solitary, there are legal restrictions governing when a person may be placed in this condition. They mostly concern dangerousness and risk to an individual or the prison. Being in a wheelchair does not in any way meet the legal rules for placement in solitary – and yet this is what happened to Mr. Allen. Which illustrates another serious concern about the practice, how it operates, and why it is so critical that the law must not leave these decisions in the hands of correctional officers without clear rules, transparency, and strong accountability and oversight measures. Prisons are closed-off worlds, generally out of the view of the rest of the public. People in these institutions often have very limited access, if at all, to legal protections. Case in point – Mr. Allen was held, unlawfully, in solitary for 412 days, and it was only after his release that he was able to file a human rights complaint. This is why outside inspection and oversight bodies, as well as individuals, must be allowed into the prisons, and why robust independent, external oversight is necessary.
Finally, a person with a disability may have greater vulnerabilities than other inmates and frequently may require greater access to healthcare and other types of accommodation. This was certainly Mr. Allen’s case. Due to a prior injury, he required daily showers to protect his skin and was incapable of digesting certain foods properly. And yet conditions in solitary are worse than for other inmates, access to healthcare is poorer, and the provision of accommodations to Mr. Allen was grossly inadequate, despite the fact that a prison doctor had approved these accommodations as necessary for him.
And if that is not enough, when Mr. Allen filed his human rights complaint, the province added insult to injury by arguing that they had placed Mr. Allen in solitary in order to accommodate his disability. Accommodations are supposed to make a person’s situation better, and more equitable.
Keeping someone for 412 days in a condition where their basic health and welfare is not provided for and their mental health is at serious risk is the very opposite of an accommodation.
As an intervenor in the case, CCLA provided arguments — written and oral — to share with the Tribunal the many concerns that this situation raised. Following this, Mr. Allen reached a settlement directly with the province (CCLA as an intervenor did not participate in the settlement). The settlement includes some protection for persons with disabilities in Ontario’s jails, but there is still a great deal more work to do.
SNC-Gate might be the way the Kremlin works, wherein Putin officials manipulate the justice system to benefit his friends, but not Canada. Nobody is above the law in this country. Nobody.
So if PMO crackerjacks made legal changes to the Criminal Code to accommodate a Quebec conglomerate, then lobbied the Justice Minister to politicize a criminal prosecution, then this government is about to learn the hard way that messing with the administration of justice is not just bad politics. It may be a crime.
The Globe investigation may have already triggered a criminal investigation into allegations that PMO officials committed obstruction of justice and breach of trust under the Criminal Code. This story has all the hallmarks of a corrupt police state. If true, it confirms the public’s worst fears about the justice system. That it’s about who you know, in the PMO, not what you did.
That said, the Prime Minister has flatly denied the allegations. Maybe now he and his office will feel what it’s like to have their presumption of innocence steamrolled, as Canadians feel when faced with the Liberal DUI law debacle. A reckoning has descended upon their constant disregard for due process rights under the Charter; their refusal to repeal mandatory minimum sentencing laws; their resistance of justice reforms to benefit the most vulnerable; and their bizarre insistence on solitary confinement of mentally ill people.
Back to SNC-gate. In my experience as Attorney General of Ontario, if anyone from the Premier’s Office tried that out, either the Deputy Attorney General or I would have picked up the phone and dialled 911. The new federal Attorney General should consider whether he’s best serving Parliament and the administration of justice from outside Cabinet, following the convention in the UK that the A.-G. not sit in Cabinet.
As such, the legal scholar turned MP David Lametti could fulfil his juridic aspirations if not his political ones. The Cabinet needs his excellent legal mind now more than ever. But he ought to do so only as Chief Legal Officer to the Crown and not as a member of the Cabinet. At the least, he should recuse himself from Cabinet when not advising them on legal ramifications. The A-G in UK does not traditionally sit in Cabinet because s/he must be independent on criminal matters and directly responsible to Parliament
Of course, that’s exactly why Lametti was put there by the PM – they could not have Jodi Wilson-Raybould referred questions by the PM during Question Period because she needs to refer questions to someone else. That someone else is Lametti, Scholar-In-Chief in today’s parliament, not unlike Irwin Cotler was under PM Martin.
The standard operating procedure on such a scandal would be to call an inquiry headed by a retired judge. But in this case, no such inquiry could proceed without the inquiry itself interfering with a criminal investigation. That was the order of things in Ontario when the Ipperwash Commission (on the fatal shooting of Dudley George by an OPP officer, amid unproven allegations of political interference) needed criminal prosecutions to complete before it could commence. Only after they were finished could I appoint former Chief Justice Sid Linden as the commissioner.
But again Canada could take a page from the UK, appointing an inquiry to report back within 6 weeks about how best to manage this from Parliament’s perspective. Meanwhile, the police investigations, if any, could continue.
But for goodness sake, I hope the RCMP (or whatever police agency is dispatched) and an independent prosecutor do not drag this out and play peek-a-boo during the upcoming fall election. They should do their job and make a decision about laying charges and then announce the decision publicly, in a reasonable time period. Everyone implicated is innocent, after all. Innocent until proven guilty. The PM denies the allegations; so let’s not delay getting some independent verification, even as the Globe and other journalists chase this story down to its essence.
Which is that the PM is accountable to the House of Commons and the electorate for the actions of his office. There is no plausible deniability that applies politically, even if it shields him from criminal liability. The principle of Ministerial responsibility may be observed in the breach in parliamentary democracies. But Canada’s constitution still stands for the principle that the buck stops with the First Minister.
Mr. Bird doing too much bird is the issue before the Supreme Court of Canada in R. v. Bird. ‘Doing bird’ is slang for doing prison time, and Mr. Dean Spencer Bird is arguing that he’s done his time, so why is he still being held in prison?
Indeed, a ‘Liberal’ government notwithstanding, the feds are making things harder and harder for people to reintegrate into society once they’ve completed a prison term. Getting a job is almost impossible with a criminal record, which in some provinces any employer can access even if the record is totally irrelevant to the job. (How is a drinking and driving conviction relevant to working at Home Depot as a janitor?). There is next to no rehabilitation offered while people are in the bucket, and the only true reintegration services out there are not provided by the feds, but rather by some excellent charities that do all they can but wish they could do more. For those subject to parole after their release, the conditions can be so onerous that they are set up to fail, sending them right back into the criminal justice system.
But R. v. Bird takes this populist obsession with punishment to a whole new level. This week, the Supreme Court of Canada is set to decide whether a man should be imprisoned for failing to follow an apparently unconstitutional order. The Court is dealing with a question that is fundamental to any constitutional democracy dedicated to the rule of law: if the state has violated an individual’s Charter rights and freedoms, must the individual receive an effective remedy?
There is little dispute as to the facts of this case. After successfully completing his term of imprisonment, Mr. Bird was subject to a ‘long-term supervision order.’ A supervision order is a wolf in sheep’s clothing, pretending to be about rehab of an individual and reintegration into the community after they have completed the custodial portion of their sentence. But there is little to none of that actually offered to the ex-con. Instead, supervision orders are all about keeping him under the thumb of the state, in the name of protecting the public from the risk of re-offence. You thought that once you did the crime, you had to do the time, and your debt to society was paid off? Think again.
In this case, the Parole Board and Correctional Service Canada ordered Mr. Bird, as part of his post-imprisonment supervision order, to live at a Community Correctional Centre, i.e., a minimum-security correctional institution operated by Correctional Service Canada. In other words, the hawks at Corrections decided that the best way to reintegrate Mr. Bird into society post-incarceration was to … incarcerate him.
After leaving the Centre without permission (so much for freedom), Mr. Bird was charged with the criminal offence of breaching the condition that he reside at the corrections institution.
Mr. Bird has a relatively straightforward constitutional argument against the order detaining him at a Community Correctional Centre. Under the relevant statute, the Centre would appear to be a penitentiary designed for “inmates,” such as individuals on day parole or those still serving their sentence. As a detention centre intended for “inmates,” it cannot further a key goal of long term supervision orders: community integration. To repeat the point made above: reintegration into free society post-incarceration cannot be achieved through further incarceration.
Mr. Bird had undeniably completed his prison sentence. So if the Parole Board and Correctional Service Canada never had authority to order Mr. Bird to reside at the Centre, it is a detention unauthorized by law — which is to say an arbitrary detention that violates Section 9 of the Charter.
The problem is that the Supreme Court may not even consider his constitutional argument. Under what is known as the “doctrine of collateral attack,” the Court may decline to consider Mr. Bird’s arguments on the grounds that the initial order to reside at a Community Correctional Centre cannot now be challenged in proceedings regarding a breach of that order. The upshot? An unconstitutional order magically becomes constitutional if the defendant delayed in challenging the unconstitutional order in the first place — even if it results in an individual going to prison for disobeying an unconstitutional order (which is to say no real legal order at all).
While there already exists a complicated legal test for avoiding this result, the current test does not consider an individual’s Charter rights and freedoms when deciding whether to allow a Charter argument to proceed. The shocking possibility that one could face imprisonment on the basis of an unexamined and potentially unconstitutional order is why we at the CCLA intervened at the Supreme Court of Canada. We argued that any attempt to limit Mr. Bird’s legal right to challenge the conditions that were placed on him by the Parole Board must be informed by Charter considerations.
Specifically, we argued that a court should consider the extent of the alleged impact on the Charter rights of the individual wishing to challenge the order, such as the severity of sentencing an individual to long-term imprisonment on the basis of a potentially invalid order; the utility of existing review mechanisms for remedying or preventing the alleged Charter breach, including the speed at which the individual could have challenged the order prior to breaching it; and the actual ability of an individual to challenge the order or make use of existing review mechanisms prior to the breach, including socioeconomic concerns regarding the accused’s ability to access justice. It is a mistake, we argued, to think that individuals will always have the resources or wherewithal to challenge legal orders before their legal consequences have become fully realized.
Whatever the Court decides, R. v. Bird is likely to serve as a leading decision on a bedrock Charter principle: whether a right without a remedy can be considered a right at all.
CCLA and 9 partner organisations have made another step forward in our attempt to stop mass surveillance of the world’s networked communications systems.
Today, our request for a referral to the Grand Chamber of the European Court of Human Rights has been granted. This means that the highest European Human Rights Court will consider our argument that the routine, daily surveillance of millions of communications around the world for national security purposes is incompatible with human rights law and unjustifiable in a democracy.
CCLA is participating in this fight because laws that allows bulk collection of communications data impact us all. Messages we send at home in Canada flow with those from every other nation across the internet and are subject to bulk interception, without any suspicion that we’ve done anything wrong.
We have been fighting this fight for a long time, building on each success. In 2013, whistleblower Edward Snowden revealed the incredible scope and reach of mass surveillance affecting us all. CCLA joined with our international colleagues to challenge the UK regime, which was extensively documented in the Snowden revelations. We asked the U.K. Investigatory Powers Tribunal (IPT) – the highly secretive UK court which hears claims against GCHQ, MI5 and MI6 – to examine whether the British signals intelligence agency’s (GCHQ) was intercepting emails to and from 10 rights and liberties organisations (including CCLA), whether such interception was lawful, and whether it was a breach of the right to privacy under Article 8 of the British Human Rights Act.
In 2014, the IPT found that UK intelligence agencies had unlawfully spied on the communications of Amnesty International and South Africa’s Legal Resources Centre. The tribunal also found that UK intelligence sharing with the US, which had been governed under a secret legal framework, was unlawful until disclosed during the proceedings. Disappointingly, however, the IPT ruled that these practices may in principle comply with the UK’s human rights obligations. This was the finding challenged in the ECtHR.
We disagree that mass interception can ever, in principle, comply with human rights obligations, and so we launched a case at the European Court of Human Rights to argue that position. On 13 September 2018, the ECtHR ruled that UK laws enabling mass surveillance violate rights to privacy and freedom of expression.
That was another important victory. However, the judgment did not go far enough with regard to the unlawfulness of bulk interception powers and the fundamental shortcomings in inter-state intelligence sharing based on communications intercepts. Our argument is simple and principled: “the fact that it is now possible for the state to retain private information about the population of a whole nation (or even many nations) … and that retaining such information may be operationally useful, does not justify the intrusion of doing so.”
Requests to the Grand Chamber are accepted on an exceptional basis; it is a testament to the public importance of the issue of mass surveillance that our case was accepted.
This opens up the opportunity for CCLA and our partners, the American Civil Liberties Union (ACLU), Amnesty International, Bytes for All, the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties, the Legal Resources Centre, Liberty, and Privacy International to continue pushing for the Court to hold that bulk powers can never be justified in a rights-respecting democracy.
It’s a long fight. It’s an important fight. And we continue to press forward.
Back to the beginning: British Spies Violated Privacy of Rights Organisations Worldwide,
A win at the U.K. Investigatory Powers Tribunal : https://www.ipt-uk.com/judgments.asp?id=27
We move the fight to the European Court of Human Rights for another win: https://ccla.org/ccla-inclo-others-welcome-historic-win-mass-surveillance-u-k/
We ask to be allowed to continue to fight: https://ccla.org/mass-surveillance-inclo-case-continues/
And we win again: our case is accepted by the Grand Chamber of the European Court of Human Rights: Grand Chamber Panel’s decisions – February 2019
As with the U.S. over-reliance upon private contractors to wage wars, in Canada, we too have fallen prey to mercenaries. Not soldiers of fortune on the battlefield — at least when a country retains private mercenaries, it’s done as a questionable means of fulfilling a mandate obtained from the elected. But what we’re doing of late in Canada is by-passing the elected, legislatures, city councils, voters. We’ve started governing through mercenaries, via an innocent-sounding mechanism called procurement — as uncovered, discovered and exposed by Bianca Wylie .
Under governance by mercenaries, no longer do governments put themselves through a controversial debate on health care or education policy regarding how to use students’ and patients’ data. That task gets outsourced to the “best” private sector bid, by way of a procurement policy that looks watertight on paper but usually gets savaged by a public auditor after it’s too late. This has been the global experience with national and subnational eHealth programs; in the justice sector with digitization projects; and with energy conservation programs. They all involve the Four Horsemen of an annual Public Auditor Apocalypse: technology, privacy, public service delivery and private procurement.
The concern here, as you’d expect from a civil liberties organization, is not the same as an auditor’s. In fact, the spending scandals mask the more pernicious public wrong of governing by mercenary. Our chief concern at CCLA is not about the money. We care about privacy, due process (data collected and used against a defendant by police without a warrant), data rights infringements involving civil liberties (eg., racial profiling by justice officials), the rule of law and democratic rights (the vacuum caused by silent legislatures gets filled by surveillance capitalism). That a poor bargain for the taxpayers was struck is an age-old political story in Canada, dating back to the building of our railway. Our concern is how mercenaries subvert our constitution.
The constitutional problem that arises with outsourcing the public interest is manifold but it’s akin to a government retaining Exxon to design a jurisdiction’s energy policy — will electricity generation be primarily carbon-based or green? How much nuclear capacity? Will there be conservation incentives for users? Will transmission and distribution be administered publicly or privately? How does the Crown fulfil its fiduciary duty to indigenous peoples? When governments leave those matters to be decided by Exxon, it has replaced its legislature with a mercenary.
For example, rather than forcing provincial and local politicians to explain what is to be done with my public school childs’ personal data, Canada’s largest school board simply procured Google, trusting them to manage the privacy and data rights of our children. The same approach was taken in the UK and across Europe with eHealth policies. And in Toronto, it’s happening with the Quayside “smart city” project.
This business — and that’s all procurement is, after all — creeps into our lives and by-passes democracy particularly in those sectors where the politicians themselves feel incompetent, especially if it involves technology. So the partnering of Waterfront Toronto and Sidewalk Labs, a Google subsidiary, was a mercenary match made in heaven for the three levels of government that showed up for a public back-patting session in 2017.
The problem is that mercenaries are, by definition, in it for the money, doing a job that a government is unwilling or unable to get done itself. Because political scandals of megaprojects tend to follow the money, through the public auditor, governments delegate the financial management, and public accountability for that management, to the alleged experts: the private sector. That’s all fine and dandy. But the qualitative decisions, the policies themselves, the way the project impacts our human dignity and civil liberties, that activity is supposed to be the function of a democracy. Instead, the politicians can duck democracy altogether if they outsource those decisions to the mercenary. And when anyone questions whether this is constitutionally kosher, the government bootstraps its defence by pointing to its lawyered-up procurement process. In politics, we call that wagging the dog.
So what? Is governance by mercenary just some obscure lament about process? Yes, and so was the Boston Tea Party. Unlike colonial rule, however, where the indigenous are oppressed by a far-off monarchy, governing by mercenary sees Wall Street as our new sovereign. The covenant between voter and parliament is replaced with a fiduciary duty owed by a corporation to its shareholders to maximize profit.
The irony is that the show the mercenaries put on is better than what registered political parties pull off during an election. There is so much razzle-dazzle to no end, no election, no vote, no accountability. There is no democratic moment therein. Just a glorious PR phantasma, somehow making movie studio campaigns for Oscars look profound, because after all eventually the Academy, whoever they are, votes. With the Sidewalk Labs shuffle, policy affecting our civil liberties gets made, to be sure, but with zero opportunity to hold a publicly elected official to account.
A glimpse of the Greatest (Undemocratic) Show on Earth can be found on their hypnotizing website page Get Involved. “Public Talks … Roundtables … Neighbourhood Meetings” galore. Baubles and trinkets and jargonized goodies like “Pop-up Stations” and “Sidewalk Toronto Workshop: 307” (just like “30 Rock”!) and “Design Jams” and “Civic Labs” and holy cow! A “36-member group of volunteer residents from across the city” deemed the “Sidewalk Labs Reference Panel” meeting over “six Saturdays”! (waaa? That’s like … a lot of meetings, no? Who needs a legislature!?) and some elitist authoritarian stuff if that’s your thing — “Local and International Experts” (who needs a Royal Commission? — and hella heavy graphics “Demos and Prototypes” and a brainy peace corps — “Fellows Program” (who needs a Fulbright Fellowship or a Rhodes Scholarship?) and since corporations can’t kiss babies, a Summer Kids Camp partnered with a trusted charity brand (Google giving back!) and, just to sweeten the pot for potential critics: a “Small Grants Program” (a shout-out to Joey Smallwood, Duplessis and Tammany Hall). So why not Mirvish’s Sidewalk Lab: The Musical?
But no matter expert their communications products, no matter how glowing their brand, no matter how many halos they rent, corporations are required, by law, to fulfil a fiduciary duty — not a public duty to voters, but a private duty to shareholders to maximize value. Look at the document that Sidewalk Labs’ parent company is required by law to disclose to shareholders. It mentions the word “value” over 70 times. There are zero references to ‘public interest’ or any variant. Because this is a business; not a government department or even a charity or NFP. Maximizing shareholder value is always done at the expense of … well, everything else but profit. The only legal accountability in a mercenary relationship is owed by the company to its shareholders: they are in it for the money .
Governments, on the other hand, are in it for the people. Ok, stop giggling. Maybe the motivation is a narcissistic lust for power and misguided fantasy about post-political fame, riches and glory. But throughout our history, the only legal duty held by elected office holders is a public duty. It is literally a crime in Canada for politicians or civil servants to violate that public trust for private gain. There are a plethora of ethics watchdogs, journalists and opposition politicians digging for missteps by governments. Legal access to public information, however flawed, is a given. If the people don’t like what the elected are doing, they throw them out.
That’s not what happened when Waterfront Toronto procured the services of Sidewalk Labs to design and implement a “smart” neighbourhood at Quayside in Toronto. This project doesn’t just privatize city infrastructure development, but also the policies to govern the technologies embedded in that infrastructure, and the data that tech will collect. At least when Hydro One was privatized, there was a debate and vote in the legislature, resulting in laws and regulations. Some voted against the Wynne Government for that decision. Not so for whatever is happening with our private data on the streets of Toronto. That’s all in the hands of the mercenaries.
Which politician do you call if you want to find out the masterplan on data management and privacy in the Quayside neighbourhood, or what happens to your information if you live or even visit there? The answer is none; our democratically elected representatives are not in charge. No one gets the heave-ho if this thing gets messed up because no one driving the deal is directly accountable to the public. Unless you’re a shareholder, you don’t get a say on this matter. That’s all in the hands of the mercenaries.
In their boardrooms, filled with MBAs, lawyers, accountants, analysts, marketing professionals, and sales force leaders, the mercenaries are cooking up what’s to be done with your data. Soon they’ll release their sanitized version of their (profitable) plan, likely to be so technical and voluminous that nobody but they understand it, after which they, the mercenaries, will decide how to exploit stuff about you for their financial gain.
When did this happen? You missed it. Google’s parent company purchased the keys to our privacy kingdom for a song. Because Waterfront Toronto, the singular legal creature that is accountable to nobody, by law, was in over their heads and got bamboozled by Google negotiators, who brokered a deal that may be undemocratic, unconstitutional, impenetrable, contrary to the public interest, but by god, it will be profitable.
Mercenaries are not known for acting in the public interest. If they were, they wouldn’t be called mercenaries. They know how to profit. If they’re trying to sound progressive, like Sidewalk Labs, they’ll emphasize long-term profit. But they don’t know how to manage a policy that is in the public interest, neither delegates nor trustees they be. They know how to manage a portfolio of companies, like Alphabet Inc., with a view to high risk, high-value return to shareholders. They have zero instincts when it comes to things like public trust, constitutional values and civil liberties. They know how to profit. They are infamously economical with the truth. They don’t talk about ‘truth,’ in fact. They talk about compliance.
Corporate mercenaries are supposed to be shrewd, competitive, successful, winners, capable of selling me the shirt off my back. Today we tend to romanticize morally bankrupt but financially profitable behaviour. So, you ask, why not get those crackerjacks from Google on this job?
The answer is that those crackerjacks don’t answer to you and me. They’re in it for the money. They already sell the most private, unspeakable information about you, stuff you’d never share with anyone, stuff you’d lock in a diary if that was your thing, selling that info to the highest bidder as if you were a heifer in a cattle call. Now they want to move that data collection offline and onto Toronto’s city streets. And while it’s true that they haven’t done much yet (a point made by a recent Toronto Star editorial suggesting privacy concerns have been overstated), that’s not the point. The point is that once we hand over city building and policy-making to mercenaries, we are going to get cities that profit mercenaries, and policies that we cannot trust because the policy-makers are mercenaries. If it sounds circular, that’s because it is.
That’s the problem with mercenaries. Human dignity is not their forté. Governments and legislatures are invariably maligned and mistrusted, but we prefer them to mercenaries like we prefer even the fallible Mounties to mall cops.
Do you really trust your constitutional rights to equality, free speech, free association, privacy and liberty to a bunch of mercenaries? That’s for you to answer, but typically citizens prefer having a say in what happens to their stuff. And the only way to have a say is to run it all through a democracy, or at least do that before we hand it all over to the mercenaries. As it is, we may be getting snookered.
Canadian Civil Liberties Associationmedia@ccla.org
 See B. Wylie: “The TTC’s Problematic $500,000 Software License Shows Why Procurement Matters” https://torontoist.com/2017/10/civic-tech-ttcs-problematic-500000-software-license-shows-procurement-matters/, “Smart Communities Need Smart Governance” https://www.theglobeandmail.com/opinion/smart-communities-need-smart-governance/article37218398/, “Governance Vacuums and How Code is Becoming Law” https://www.cigionline.org/articles/governance-vacuums-and-how-code-becoming-law, “Sidewalk Toronto, Procurement Innovation, and Permission to Fail,” https://tinyurl.com/y7nly5mz, for more see: https://biancawylie.com/.
 The IPO letter from Google in 2004 was full of promises to not “be evil” but also confirmed their legal duties to shareholders: “We will support selected high-risk, high-reward projects and manage our portfolio of projects.… We are conscious of our duty as fiduciaries for our shareholders, and we will fulfil those responsibilities.” https://abc.xyz/investor/founders-letters/2004-ipo-letter/
Equality rights need teeth. Criminalizing expression violates freedom of speech. Both ideals are true and need not be incompatible. But equality trumped free speech in a rights clash last week because Canada’s parliament has long been in the business of criminalizing hate speech.
Last week, in a Toronto courtroom, two individuals were found guilty of wilfully promoting hatred contrary to the Criminal Code. It’s believed it is the first time that a conviction has been handed down for wilfully promoting hatred against women – and the two were also convicted of promoting the hatred of Jews.
The two accused – now convicted – are the editor and publisher of Your Ward News (YWN) – a hateful rag of a paper which is offensive not only to Jews and women but to almost anyone who has any respect for humanity. While I am reluctant to give these men more free press, I feel compelled to say that I think their criminal prosecution does more harm than good. It undermines the value we as a society place on free expression, ignoring the fact that we have protections not for speech that is popular and mainstream, but for precisely the opposite reason. The prosecution is also unlikely to do much – if anything – to protect the targeted groups from more hatred.
Many years ago – as the 1980s were coming to a close – CCLA went to bat in R. v. Keegstra to argue that the criminal prohibition on hate speech was unconstitutional. At that time, we pointed out that the provision was clearly targeting the content of expression strictly for the purpose of preventing the communication of certain messages – an endeavour anathema to freedom of expression. While criminal law is usually focused on actions and harmful outcomes, the hate speech provisions focused on words and speculation. There was no evidence that hate speech was likely to contribute to discrimination in society, much less violence or civil disorder. The problem was heightened by the fact that the language of the provision is vague since the concept of hatred includes a wide spectrum of emotions. This vagueness risks chilling the expression of many who were never intended to be the targets of hate speech laws – particularly minorities who may wish to air legitimate grievances about their treatment by the majority. And there is always a risk that the state will prosecute with a view to protecting some groups while leaving less popular or vocal ones to fend for themselves. Ultimately, the Supreme Court upheld the hate speech law. Fortunately, it has been used rarely – and when used, has rarely been successful. In a mature democracy like Canada, I think this is a good thing.
I hope the YWN case is an anomaly and not the beginning of a new trend in favour of criminal prosecutions for hate speech. While I tend to believe that this “newspaper” is catering to a very particular audience made up largely of individuals who either already share the views expressed, or view it as a completely ridiculous satire, it is possible that the messages contained in YWN may have some real-world effect (outside the minds of its readers). I don’t know whether some who read the paper may feel empowered to act, possibly in hateful or even violent ways, because of what the paper says. I don’t think the prosecution could pretend to know this either. What I do know is that giving these men a criminal trial has substantially increased not only their profile but also the profile of their paper and its contents. There is little doubt that at least some people who read about the case will go online to see what this publication is all about, and so the prosecution for the promotion of hatred actually serves to further spread the hateful content it is intended to suppress. I also know that, like so many of today’s haters, the criminal prosecution of these men will allow them to publicly claim their place as martyrs of free speech – further sullying the name of what I believe to be a true hallmark of a democratic society.
Everyone I know coming across YWN are shocked by the content. Many initially think: something needs to be done about this. But the next step need not be to dial 911.
Canada is not a fragile or fledgling democracy. Yes, we have deep-seated problems of sexism, racism and discrimination in our society. But they are generally of the more subtle, systemic variety, pernicious in its own way. Rarely does it take the form of the outlandish and fringe expression prosecuted in the YWN case. We can and should use means other than the criminal law to put hate speech in its place. If we rely too much on penal law to solve this problem, we may miss valuable opportunities for counter-speech, and may also end up placing on a podium those who, as Alan Borovoy used to say “should be left to wallow in the obscurity they so richly deserve.”
Since Sidewalk Labs and Waterfront Toronto announced their agreement to develop a plan for a Quayside smart city project, privacy concerns have been a big part of the conversation. Such a big part that recently, there’s been a bit of a backlash against smart city privacy conversations, most notably in a recent Toronto Star editorial which suggests that despite not much having happened yet on the project, “it does seem as though many people who know they should be more vigilant about their privacy than they are when it comes to all those apps on their cellphones have decided to dump all their pent-up privacy concerns on this one project.”
Frankly, if it is true, as the Star argues, that the project is facing greater public scrutiny because last year’s scandals involving big data collecting companies and millions of unsuspecting users have people worried about the risks of data misuse and misappropriation, that seems fair. After all, the company driving Toronto’s smart city project is in fact a sibling of Google, the company that just this week was fined $57m in France for failing to abide by the EU’s General Data Protection Regulation. More significant than the size of the fine is the rationale for it, the New York Times reported: “In a statement, the regulator said Google’s practices obscured how its services “can reveal important parts of their private life since they are based on a huge amount of data, a wide variety of services and almost unlimited possible combinations.” Sidewalk is not Google, as they tell us often and with frustration, but we don’t need to conflate the two to believe that the relationship matters.
Despite the media air time given to privacy issues, we would argue that there hasn’t been much meaningful conversation with the public about privacy at all. Sidewalk’s claim of “world-leading best practices” has not been seriously examined in any public forum, whether at one of the PR-heavy Sidewalk Roundtables or at Waterfront Toronto’s own Digital Strategy Advisory Panel. The benefits of the (voluntary) Privacy by Design model have been touted, but its limitations have not been discussed, especially given the inadequacy of existing legal frameworks regarding privacy. There has been very little public education around issues of individual and collective privacy, how they are distinguished, and how they should be approached.
We’d argue that now really is the right time to air concerns and discuss the thorny topic of what Sidewalk themselves initially characterized as a “digital layer” of the city–before they design products that are hard to change, or embed something extraordinarily difficult and expensive to replace into our infrastructure. Digging out sensors from the street isn’t as simple as deleting an app from our phone, and with greater risk and financial exposure should come greater due diligence. Conversations about threats that have yet to crystallize is probably the price we have to pay to make sure that they never do.
Obviously, privacy isn’t the only topic that matters in the larger smart city conversation that Toronto should be having. It’s a valid concern that we may be spending so much time talking about privacy, that we’re not talking not enough about all the other fundamental questions this project raises, starting with, “Do we really want a city where human experience is conceived as data?” There are so many discussions we need to have where privacy doesn’t play a role–democratic accountability and deficits, intellectual property, asymmetrical economic and power relationships, the difference between innovation we need versus innovation that needs us as a “test bed”, all of these things and many more should be part of the comprehensive conversation not just about this particular smart city project, but more basically, about the kind of city we want to live in.
But that means we need to do a better job of opening up space to talk about all of those other issues, not shut down the privacy conversation, not least because it is a thread that weaves through many others. If the smart city is a sustainable city, how can we monitor energy usage without creating dwellings that monitor the ways we live within them? If the smart city includes affordable housing, how can we make sure that vulnerable people (who need homes so badly they aren’t going to argue with terms and conditions for achieving them) don’t end up as guinea pigs for intrusive behavioural modelling? If the smart city includes “new mobility” what kind of information about users would, for example, an autonomous ride-share service need versus what they might want to know about customers, and who gets to decide how that gets balanced?
Toronto residents are not wrong to have persistently raised privacy issues created by this project, and the fact that privacy is only one of many issues that need attention doesn’t mean it doesn’t deserve ongoing, careful scrutiny moving forward. A city built “from the internet up” is a city built on the data we all create as we navigate daily through the places we live our life. What is done with the bits and bytes of data about us, the minutiae of our interactions through time in city spaces, and what impact that has on us as individuals and as a community, is going to be a key factor in whether a smart city is liveable or not, sustainable or not, successful or not. Privacy protection, in design, governance, and policy, must play a key part of the conversation if we want a smart city to be a place where we control the technology that serves us, rather than one where we serve the technology and those who control it.
– Nabeel Ahmed is a researcher on smart cities and a member of the Toronto Open Smart Cities Forum.
– Brenda McPhail is the Director of the Privacy, Technology & Surveillance Project at the Canadian Civil Liberties Association and a member of the Toronto Open Smart Cities Forum.
Just two months after declaring the mandatory minimum sentence for possession of child pornography unconstitutional in R. v. Swaby, the BC Court of Appeal released a decision striking down another mandatory minimum sentence, this time with respect to the sexual interference provision of the Criminal Code (s. 151).
In R. v. Scofield the accused had pled guilty to two counts of sexual interference and received a conditional sentence order (“CSO”) of six months. The trial judge held that s. 151(a) of the Criminal Code, which imposes a mandatory minimum punishment of imprisonment of one year for the offence, would constitute cruel and unusual punishment, and therefore would violate Mr. Scofield’s s. 12 Charter rights.
On appeal by the Crown, the BC Court of Appeal applied the analytical framework laid out by Justice Bennett in R. v. Swaby. In his reasons, Justice Harris wrote that, due to Mr. Scofield’s significant cognitive deficits, a one-year prison sentence “would outrage the standards of most informed Canadians.” Moreover, the mandatory minimum sentence failed the “reasonable hypothetical test”, because in reasonable hypothetical circumstances that would attract the application of s. 151, the imposition of the mandatory minimum sentence would be “grossly disproportionate, would shock the conscience of Canadians, and would be cruel and unusual punishment.” As a result, the court declared the mandatory minimum sentence imposed by s. 151(a) of the Criminal Code to be unconstitutional and of no force or effect.
This decision is just the latest in a growing series of decisions by courts across Canada striking down various mandatory minimum sentences from the Criminal Code on the basis of s. 12 of the Charter.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.
Originally posted January 22, 2019 on Rights Watch Blog | A joint project of CCLA and Pro Bono Students Canada
About the repeal
In July of 2018, Education Minister Lisa Thompson announced that schools would revert to teaching the 1998 health and physical education curriculum. This change is in adherence to a pledge made by Premier Doug Ford during the provincial election. Premier Ford, along with some social conservatives, consider the 2015 curriculum inappropriate for children.
Unlike the 2015 curriculum, the 1998 curriculum does not mention the various uses of the Internet, including cyber-bullying and social media. It does not mention “visible and invisible differences” between individuals, such as sexual orientation, learning abilities, gender identity, and race. In short, the curriculum is dated and fails to mention many pressing issues of the 21st century. Chris Markham, executive director of Ophea, a non-profit group that develops materials for school, highlights the fact that students may nonetheless bring these pressing topics to the classroom and notes that teachers will have trouble avoiding addressing topics considered now to be out of bounds.
Elementary Teachers’ Federation of Ontario court hearing
In August, Premier Ford issued a statement asserting that the government will act if teachers fail to comply to the new curriculum. The Ontario Conservatives also launched a website where parents can report their concerns, which critics have called “the snitch line”. The statement and website prompted the Elementary Teachers’ Federation of Ontario (ETFO) bring forward a legal challenge. ETFO lawyer, Howard Goldblatt, states that the Ontario government is constraining the teachers’ freedom of expression.
This month, lawyers defending the province told a Toronto court that teachers can still use the 2015 curriculum as a resource to discuss issues about consent, homophobia, and transgender issues. This statement is in stark contrast with the message Premier Ford has given to teachers and has confused observers. For teachers, this mixed messaging gives poor direction to how they are to conduct their lessons. For socially conservative parents, this message may feel like a retraction of Premier Ford’s promise to fully repeal the 2015 curriculum. The hearing and its final decisions are currently pending.
Other court hearings
The CCLA has issued its own legal challenge to the 1998 curriculum, arguing that the erasure of references to the LGBTQ+ community violates their constitutional right to equality. Further, the removal of these references may put LBGTQ+ students at risk of bullying and unequal treatment due to differences.
A similar legal challenge has been brought forth by an 11-year-old transgender girl, identified as AB, who argues that she is in danger as her classmates will not be required to learn about gender identity. Her lawyer, Mika Imai, states that AB feels the government is “…putting trans students in the shadows” with their curriculum changes. AB’s claims will be supported by experts, who affirm that students who fail to learn about the queer community are more likely to bully their LGBTQ+ classmates. A decision for this challenge by the Ontario human rights tribunal is pending for spring.
This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.
Today, the Supreme Court of Canada has released its long awaited decision in Frank v Canada, striking provisions of the former Canada Elections Act that had prohibited certain non-resident Canadians citizens from voting in federal elections.
The decision is a victory for the principle of equal citizenship. We had argued, before the Supreme Court, that the voting restrictions effectively created a discriminatory system of tiered citizenship, which treated non-residents as less Canadian, second-class citizens. Today’s decision confirms that this system of tiered citizenship is contrary to the Charter’s broad protections for the right to vote.
Prior to the Court’s ruling, Canada’s federal government had amended the Canada Elections Act and removed the contested provisions, which denied the right to vote for “non-resident” electors, i.e., Canadian citizens who have been residing abroad for more than five consecutive years or for Canadian citizens who are abroad for less than five years but who do not intend to return to Canada. Yet, today’s decision has important implications both for the future of the right to vote in Canada and for the meaning of Canadian citizenship more broadly.
A majority of the Supreme Court reasoned that the restriction on voting was not adequately tailored to respond to a specific problem. Indeed, the legislation was over-inclusive, restricting the rights of voters who were strongly committed to Canada and who were deeply affected by Canadian legislation and policies. The majority also noted that any good that was achieved by ensuring electoral fairness for resident Canadians was clearly outweighed by the effects of disenfranchising non-resident Canadians. This is particularly true in a globalized society, where many Canadians now choose to live abroad for significant amounts of time. The decision will now stand as an important limit on any future government attempting to deny non-resident electors the right to vote.
Our arguments before the Supreme Court focused on why the residency-based prohibitions on voting were contrary to the value of equality that underlies the Charter right to vote. Prior to being amended, the Canadian Elections Act treated an entire class of Canadian citizens, numbered in the hundreds of thousands of Canadian citizens, differently and unfairly based on a personal characteristic — their place of residence.
The government argued, in support of these restrictions on the right to vote, that the vote should be restricted to Canadians who are most affected by, and obliged to obey, Canadian laws. But as the majority recognized today, these arguments miss the mark. Canadians residing abroad pay tax on income made in Canada, frequently have family in Canada, and can be, and often are, subject to Canadian laws that operate outside our borders (such as, for instance, our laws governing campaign finance and electoral advertising). In short, they have a real stake in Canadian laws and policies and should not be left without political representation.
More troublingly, residency-based prohibitions on voting deprive an entire class of Canadians of the opportunity to carry out their fundamental duties of democratic citizenship and thereby deprive them of their personal autonomy and self-determination. They create a category of “second class” citizens who are not trusted to give full voice to their political concerns. The discriminatory character of this tiered-citizenship is deepened by the correlations that often exist between residency and ethnic or national origin. Residency-based restrictions ensure that classes of citizens from certain ethnic or national backgrounds will have a lesser say in Canadian politics because these groups are more likely to live abroad for significant amounts of time.
Today’s decision is an important win for the right to vote in Canada. A difference in place of residence simply cannot justify depriving individuals of their right to be full and equal Canadian citizens.
December 31 is the end of an era for Torontonians. It’s the last day, ever, that we can use a metropass on the Toronto Transit system. From January 1 2019, the Presto electronic payment system takes over, and that means that our ability to travel by bus or subway through the city untracked has radically decreased. We could buy a metropass with cash, use it every day all month by showing it to a fare collector, and no record that connected us with that card would be created. Not so with Presto.
Presto, now in operation in Greater Toronto, Hamilton and Ottawa transit systems, is developing a reputation as the system we love to hate. But the gripes you hear floating around about the switch from pass to Presto are focused on the fact that the Presto system is plagued with dysfunctional card readers, auto-fill errors that leave riders unexpectedly out of funds, and vending machines that are better at taking money than spitting out new cards. These are all irritating, but they’re likely to get fixed over time.
The big issue that we’re not talking much about at all is privacy—when Presto becomes the only option, anonymous travel becomes pretty much impossible. That’s because of the way the Presto system is designed, as a re-loadable card that requires people to create an account and probably link a credit card to maximize benefit and convenience.
Presto is optimized to operate for identified users. When we become an account holder, benefits include the ability to cancel a card if it’s lost, the ability to check to confirm we’re only getting charged for the trips we’ve taken, and the ability to automatically re-load a card by linking it to a credit card. But all that convenience comes at a cost. Every ride is tracked. Every time we tap the card our presence is recorded. That information can be shared with police, transit safety officers or special constables, without a warrant in many cases. The records are stored for at least five years, according to the Presto terms of service. And to be clear, much of the data collection is not a necessity, it’s a design choice. Many of the benefits—including online reload and reviewing charges—could be possible without recording your location every time you tap, that’s just not the way the system was designed.
Technically, you could pay for a presto card and a monthly pass in cash at a service counter and avoid all that data collection by choosing not to register the card. Your trips would still be linked to the card, but not explicitly to your identity. Of course, you’d lose the option to cancel the card if it gets lost (making it much like the metropass), to autoload or autorenew. But the next month, if you didn’t want the data to accumulate, you’d have to replace the card and pay cash for another one. So privacy becomes hard, it becomes more expensive, and when those two factors combine, it becomes more and more unlikely.
It’s reasonable at this point to be asking, why should this matter? Why care? Everyone collects data now, right? Of course, the answer to that is increasingly, routinely, yes. And that’s the biggest reason why the Presto card should give us pause. Realistically, it wasn’t designed to be the ultimate transit surveillance device. No one sat down and said, how much information can we scoop up about transit users? Rather, the conversations were probably very much about user convenience, about providing features to make using transit easier, and about reducing costs for the transit authority, and the data collection was a means to an end without much thought about other implications. Presto is just an example of the way the world now works—and that’s the problem.
Because it’s happening in all aspects of our lives again and again—things we use to navigate our daily routines are being connected, networked, generating data either purposely or incidentally, which then can be used in ways that may benefit us, or may not, but either way it’s largely out of our control. Transit passes, cell phones, thermostats, watches, cars, even sex toys, everything is collecting information. Sometimes the data is needed to make a device do cool stuff. Often it’s also collected whether or not it’s needed for the initial functionality because it can add to the value proposition for the creator if the device makes money when it’s bought and then more money, perpetually, as its use creates a potentially profitable data stream.
We are moving, incrementally, device by device, towards a world where the price of participating in modern society is surrendering the sometimes trivial, sometimes intimate, but fundamentally personal minutiae of our daily lives to whoever has found a way to collect it. Each little piece feels, well, little. Each trade-off feels minor, often made in the context of an immediate gain—I want that app now, click yes and move on. But in our big data, algorithm-driven world, all those tiny bits, all those walks, talks, clicks and swipes, are being combined to create a portrait of us that can help reveal things to others that we don’t even know about ourselves. And we don’t know who those others are, most of the time, or what they will do with the information, or even if or how their actions will affect us. Maybe they will, maybe they won’t, and often we’ll never know.
We need to think about this, not blindly acquiesce. We need to make choices, not accept products that either deliberately or accidentally fail to include privacy protections as part of the design of the technology, and of the policies that surround it. We need better laws to protect us. We need to not fall for the old wheeze, if you’re not paying for it, you’re the product, because increasingly, we ARE paying for it but we’re still the product and we’re becoming convinced that we should be the product. We have to get past the notion that data is the new oil to fuel innovation and that cutting off the flow will shut down the machinery of the nation, because while oil comes from the remains of prehistoric organisms, data comes from—and has consequences for—living, breathing, humans. Of course businesses, even governments, want the capacity to collect information if it is useful or profitable, but that doesn’t mean we have to hand it over unquestioningly. We need to decide how much convenience is worth, and whether the benefits we get are worth what we give up in exchange, keeping in mind that privacy isn’t just a privilege, it’s a right, and we deserve it.
Presto isn’t the worst offender, it’s just a typical one. When the last metropass is swiped, probably a minute before midnight on December 31, the occasion will go unmarked. But we’ll have a little less privacy on January 1. As we begin a new year, we should resolve to demand better.
73% of Canadians are concerned or somewhat concerned about how political parties use personal information according to a Nanos poll released today by the Globe and Mail.
So why aren’t political parties covered by privacy law in Canada?
It’s certainly not because parties don’t collect or use personal data. Every party has a voter database to keep track of supporters, donors, the results of knocking on doors—in other words, the information necessary to run campaigns. Some parties give apps to their canvassers to let them input data on the fly. Every party relies on data analysis to assist with strategy. And almost inevitably, every party shares information with third party service providers contracted to do things like process donations or running polls.
It’s also not because there is widespread disagreement about whether or not information about our political opinions is sensitive and deserves protection. Political belief is a prohibited ground for discrimination under the Canadian Human Rights Act and other such acts internationally. In the European Union, the General Data Protection Regulation which is influencing the privacy landscape around the globe also explicitly includes political opinions as a “special,” i.e. sensitive, data category. Which raises another point: Canada’s failure to include political parties under privacy law is not because no one else does, as the UK, much of the EU, and New Zealand all have laws covering political organisations.
It’s similarly hard to argue parties should be excluded from privacy laws because it will impair democratic process. We have the perfect example in British Columbia, the one province that has included political parties under their privacy legislation since 2004. Parties there continue to collect information, engage voters, and run effective campaigns in what is arguably one of the most politically exciting provinces in the country.
And it’s absolutely not because experts think it’s a bad idea. During its recent study of the privacy vulnerabilities in Canada’s democratic electoral process, the Parliamentary Committee on Access to Information, Privacy and Ethics listened to a long line of witnesses and concluded that political parties really should be covered by a law.
Every provincial Information and Privacy Commissioner in Canada, along with the federal Privacy Commissioner, agrees. In a joint resolution issued Sept. 17, they called on governments to pass legislation to govern political parties’ use of personal information, to provide for oversight over those uses, and to provide people with access to their own information held by parties.
In other words, they asked that political parties be required to abide by the same privacy principles and rules that governments and companies who collect our information have to follow.
So why are political parties not included under privacy law in Canada? The simplest answer seems to be, because they don’t want to be. There simply isn’t the political will to make it happen, as the current government’s electoral reform effort, Bill 76 makes sadly clear.
Private sector companies cannot use your personal information without consent. Parties can. Elected governments are limited in their ability to collect information from us for one reason and use it for another. Political parties are not.
Why does it matter? We live in an age where we want to use data like a magic wand, something we can point and – poof – the way to influence a person or group of people is revealed. Obviously, we should question whether that’s truly the way it works, but simply the perception that it might means that every political party wants as much information about us as they can get. It is clear they are all looking for new and exciting ways to learn about us, to target us, and to predict our behavior, to get a leg up on their competition. So, it’s a problem that there is no laws governing how far they can go.
To be fair, all of the major parties have their own privacy policies. Some of the polices are not bad. But these are rules parties make and enforce for themselves. It is all a matter of trust in a climate where there is a lot of motivation to push the boundaries, and where public faith in the integrity of our political processes is fragile.
While there are no principled reasons why privacy law should not apply to political parties in the same way it does to pretty much every other public and private sector data collector, fair implementation would be essential. Such legislation cannot be crafted in such a way as to handicap an opposition party, or to make compliance disproportionately difficult for parties who are less resourced. Any proposed legislation must be carefully considered, principled and fair: no political gamesmanship can be allowed in the name of privacy protections.
It is really very simple. Political parties who ask for our votes — and our credit card numbers—should be legally responsible for respecting our privacy rights.
This morning we wrote to Saskatoon’s Mayor and City Council to share our concerns about the legality, and the wisdom, of their proposed new rules for rideshares.
A city stepping in to regulate rideshares is often a fraught exercise. But what caught our eye wasn’t the typical debates – but the City’s insistence that all potential drivers undergo the most intrusive level of police record check and their blanket exclusion of people with certain criminal records from employment.
The vulnerable sector check is a level of background check that should, by law, be reserved for those applying to the most sensitive positions of trust with, or power over, vulnerable individuals. Typical examples include summer camp counsellors or personal support workers for the elderly or disabled. Of course, taxi and rideshare drivers will come into contact with all sorts of people in the course of their day, vulnerable and not. But general contact with the public in all its diversity shouldn’t be enough to unlock what is supposed to be a narrow, exceptional form of record check.
The proposed absolute prohibition on people with certain criminal convictions from obtaining a licence is also troubling. Although the scope of this prohibition isn’t clear from the draft regulation (something of a problem in itself given that Council is being asked to vote on it on Monday), it turns out this isn’t a wholly new idea in Saskatoon – the city already has an absolute ban in place on some people with criminal records receiving taxi licences.
Presumably, the existing bylaw and this new proposal stem from a desire to keep transportation customers safe. Blanket policies excluding individuals with criminal records from employment, however, are more likely to undermine community safety than enhance it.
Research has shown that performing criminal records checks is not a reliable way to identify individuals that are at higher risk to commit workplace crimes. There is no way to predict, based on an individual’s criminal record, whether a person is more likely to commit a future crime in a workplace context.
The consequences of excluding individuals exiting the criminal justice system from stable employment, on the other hand, is clear. Stable employment, as well as the income, stable housing and social networks that employment can foster, are significant protective factors against future reoffending. Systematically excluding individuals with criminal records from employment decreases community safety by creating barriers to rehabilitation and reintegration. Governments should be promoting policies that encourage businesses to hire individuals that might otherwise be marginalized from stable employment, not passing bylaws that entrench stigma and legally mandate unjustifiable discrimination.
We hope City Council will take a hard look at its current and proposed bylaws on Monday, and send these proposals back to the drafting board.
Read our full letter here.
Whammy! It’s not everyday that civil libertarians hit a home run in the Supreme Court of Canada. But thanks to some painstakingly strategic litigation and jurisprudence; thanks to great advocacy (by CCLA and many others, but thank you to our counsel Chris Bredt and his great team at Borden Ladner Gervais LLP); thanks to the seven justices of the Supreme Court of Canada, Canada’s ugliest populist criminal sanction is gone.
Ugly because mandatory victim surcharge fines were intentionally punitive. When the Harper Government figured out that judges were making exceptions under the old victim surcharge law, such that courts would refuse to tack on a fine to someone who had no chance of paying that fine, those Honourable swines chose to make the fine mandatory, turning our criminal courts into factories for debtors prison.
Many of us watched trial judges break the news, often with great anguish, that they had no choice but to fine the person in front of them, more often than not someone penniless and mentally ill, an amount everyone in the court knew could not be paid. It was cowardly of the Harper Government to do it, because they left the dirty work to the judges. It was shameful of the Trudeau Government to leave that law untouched until finally, mercifully, the Supreme Court of Canada smacked some sense into the criminal law by striking down the ugly provision, effective today.
No one should be punished for being poor. Yet for the past five years, Canadian courts have been required to impose additional mandatory fines on all individuals found guilty of a criminal offence – regardless of the seriousness of the person’s actions, the surrounding circumstances, or whether an individual would ever be able to pay back the money. Failure to pay the fine could result in imprisonment.
The results were just what the populist doctor ordered: sweet press conferences by police showing off their ‘victim crime surcharge’ fund paying for police pet projects. To exploit victims of crime like this was so wrong. For years the lower courts have been pushing back. Some extraordinary jurisprudence arose from provincial courts, from Ontario and BC in particular, to thread the needle that constitutionally ‘inferior’ courts ordinarily cannot achieve without superior court approval.
As if any of this was tough on crime. It wasn’t tough at all. It was the worst of human nature, cruel and unusual punishment. Literally.
Take the case of Shaun Michael. Shaun was a 26 year old Inuit man, addicted to drugs and alcohol, unemployed and bouncing between the street, a shelter and his aunt’s apartment. All his offences stemmed from addiction, not to mention a childhood of abuse. Over the course of several months he repeatedly became intoxicated and acted out. He stole a bottle of alcohol; jumped out into traffic; broke a shelter window. He lashed out at the security guard and police officers who came to arrest him. He drank and failed to be ‘of good behaviour’ contrary to the terms of his probation order. When he found out his father, who he hadn’t seen in many years, was in Ottawa – also living in shelters – he followed him there and forgot to notify his probation officer — another crime. Over the course of six months, from January to June 2014, he pled guilty to nine criminal offences. The law would have required the judge to impose, on top of his sentence, a fine of $900 – $100 for each summary conviction. At the time his case was decided, he owned nothing and lived on a $250 a month “street allowance”. The sentencing judge found that the mandatory fines were unconstitutional, and refused to impose them.
Or the case of Daniel Larocque. In 2017 he was 22 years old, impecunious, and suffering from drug addiction and mental illness. He lived on disability benefits, and after paying for food and housing he had $136 per month for all other expenses. He was subject to a $700 mandatory fine after pleading guilty to seven summary conviction offences – possessing morphine, assaults, uttering threats, mischief. The sentencing judge found that the mandatory fines were unconstitutional, and refused to impose them.
Or Edward Tinker. He was 55 years old when he was sentenced after pleading guilty to uttering threats and breaching his probation. He was unable to work after a workplace injury, and suffering from heart disease and cancer. He had no savings. He was living off CPP and Worker’s Compensation – $1,200 a month, which after paying $950 in rent and $80 in medication left him with about $170 a month for all other expenses. The sentencing judge ruled that the additional mandatory fines were unconstitutional.
Or Kelly Judge. A 53 year old woman, legally blind and a recovering alcoholic suffering from depression and bipolar disorder. She pled guilty to assault and uttering threats. At the time of sentencing, she had $2000 in her savings account. She lived off of $831 in CPP disability benefits; after paying $800 per month in rent she had $31 per month and her savings to cover all other expenses.
All these people faced mandatory fines – regardless of the seriousness of their actions, their life circumstances, or whether they had the means to pay them. And if they didn’t pay the fines, they faced the threat of jail time – and being brought to court to show that they were still unable to pay the fines, and therefore should not be incarcerated. With fines outstanding none of them would be able to get a pardon or record suspension, and would be saddled with a criminal record for life.
All of them were facing additional, indefinite punishment – just because they were poor, unwell, in pain. The response of Parliament was to force judges to kick ‘em when they’re down, for good measure. Canada’s executive current caretaker of the constitution, Jody Wilson-Raybould, sent forth her agents to the SCC defend that law. Thus is the state of populism today that a majority Liberal Government is too afraid to stand up to it in the legislature or even in our courts.
We’d venture that if Cabinet Ministers had to leave the back seat of their limo to live on the street for days at a time they would crumble in short order. That the aforementioned defendants remained alive is a story of great tragedy and perseverance. But they did make it to their sentencing hearing, at which point the trial judges finally said enough is enough. (That the provincial Courts of Appeal are so disconnected from the criminal legal system that they could overturn those sentencing rulings is a matter for another day).
So now the Supreme Court of Canada has confirmed it: enough is enough. Good riddance to the ugliest law in the land. While it may not have been as harmful as, say, our solitary confinement laws (currently being shredded by CCLA and BCCLA), it’s hard to think of a federal law so mean spirited as that sodding law. The provincial panhandling ordinances still operating with a vengeance across Canada do maintain the crown for the Charles Dickens Barbarity Prize.
Many thanks to our counsel in the case – Christopher D. Bredt, Pierre N. Gemson and Alannah M. Fotheringham of Borden Ladner Gervais LLP.
Read the full decision here.
For a webcast of the hearings, click here.
For CCLA’s intervenor factum in the case, click here.
In a decision released today in R v Reeves, the Supreme Court ruled that each Canadian has a reasonable expectation of privacy in their computer, even if they share it with others, under section 8 of the Charter. This decision is a great victory for citizens’ privacy rights. It broadens the protection of personal computers under the Vu framework by requiring a warrant to search a computer even if the co-owner with shared ownership and control consented to the search.
The case involved child pornography found on a home computer shared between the accused, Thomas Reeves, and his spouse. His spouse consented to police entering the home and taking the computer from the shared space. The officer at this time had no warrant. At the Supreme Court, the key issue was whether the police officer could rely on the consent of Reeves’ spouse to take the shared computer from their home.
The initial hearing judge concluded that the police infringed on Reeves’ Charter rights and excluded the child pornography evidence under section 24(2), resulting in an acquittal. The Court of Appeal reversed this decision, allowing the evidence and ordering a new trial. The Supreme Court sided with the hearing judge, excluding the evidence and restoring the acquittal.
Since the dawn of the digital era, the Supreme Court has been playing catch-up to apply section 8 to the search and seizure of computers and cell phones. These devices contain treasure troves of sensitive information that we wish to keep concealed from the prying eyes of the state. In R v Vu, Cromwell J stated that “the privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets.” Post-Vu, law enforcement officers now require a prior judicial authorisation (such as a search warrant) to seize and search a personal computer.
Reeves may be considered an extension of Vu, in that it grants this protection to not only the claimant’s computer, but also a computer in which there is shared use. The decision is also informed by Marakah, which found that an involuntary loss of control of the device does not eliminate one’s expectation of privacy. Reeves was in custody and unable to enter his home at the time investigators seized his computer.
While Reeves’ conviction turned on the sole issue of the seizure of his computer, another issue raised in this appeal was on the police’s entry into a residence shared by Mr Reeves and his spouse. While the majority declined to address this issue here, Justice Moldaver and Justice Côté offered differing opinions on when it is appropriate for police officers to enter and search the common areas of a residence when given consent by a single resident in a shared dwelling.
This issue is expected to be addressed in R v Le – an upcoming decision in which CCLA is an intervener. We also recently appeared in front of the Supreme Court in R v Mills, fighting for the right for Canadian citizens’ privacy in one-to-one electronic conversations. CCLA eagerly awaits the court’s decision in both of these judgements as we continue to fight for the privacy protections of Canadians both in physical and digital spaces.
Across the country, Canadians who have never been found guilty of a crime are unable to get jobs, access higher education, or volunteer because of their police records. Some of them experienced a mental health crisis and received assistance from the police. Others have had their names noted in the course of a police investigation without ever being interviewed or charged. Still, others have been charged, but through the legal process have been found not guilty or had all the charges withdrawn. Years later, however, notations were still showing up on their police record checks, creating enormous, and in many cases insurmountable, barriers to housing, work, volunteering and education.
As of November 1st, provincial legislation in Ontario addresses this issue, making the province a little bit fairer – and safer as well.
Ontario’s Police Record Check Reform Act came into effect last month, standardizing most police record checks in Ontario, including by regulating the type of information that police services release on these checks. The result of years of collaboration between policing leadership, the non-profit sector, and civil liberties, justice, and mental health organizations, it has broad support, including a unanimous vote of approval from all parties upon third reading in the Ontario legislature.
The Ontario legislation means that people who are ‘carded’ by the police, dealt with under the Mental Health Act, or questioned in connection with an allegation but never charged with a crime will not have these interactions disclosed on an Ontario police record check. And it will put in place a presumption that those who have been charged with a crime but never found guilty, will only have this information disclosed in exceptional circumstances.
The legislation isn’t perfect. There are too many illogical exemptions, and some legal oddities, like the treatment of those found not criminally responsible. But it is a definite improvement on the status quo, makes Ontario a national leader on this issue, and will make the province a fairer place to live for thousands of residents. Other jurisdictions should take note and follow suit.
So the fairness part is pretty clear. But how does this legislation also make us safer?
First, let’s disabuse ourselves of the notion that police record checks are a useful tool to help predict a person’s future behaviour. We searched high and low for evidence of a link between non-conviction records and the likelihood that a person will commit a crime in the future. There is none. Even when a person has been both charged and found guilty of a crime, the studies show no link between their criminal record and job performance.
The evidence does suggest that, for a few years after a person has been found guilty of a crime, there is an elevated likelihood that he or she will have further contact with the criminal justice system. But there is no link between the type of offence committed in the past and the nature of the possible future contact. A prior conviction for assault might be followed by a curfew violation, a theft, or a violent crime. It’s just not something you can predict based on a person’s record. This is also true for those who have been convicted of sexual offences. A record alone does not predict future behaviour. Life is not that straightforward.
Giving a person with prior involvement in the criminal justice system stable employment is one of the most important things you can do to reduce recidivism. Unjustifiably excluding people from steady employment, housing, higher education, or meaningful community work makes for less equal and less safe communities.
Preventing the disclosure of non-conviction records simply means that employers, volunteer agencies and others will not be able to rely on irrelevant information to persuade themselves that their vulnerable clients are ‘safer’ because they have weeded out the ‘bad’ people.
There are lots of things that organizations can and should do to keep people safe. Train employees and volunteers properly. Put in place proper, ongoing supervision. Have regular, independent ‘check-ins’ with clients. Audit files. Have clear and effective whistleblower and complaint policies.
And yes, when hiring someone for a position of particular trust or authority, it can be reasonable to make an offer conditional on providing a criminal record check. But know that the information you get on that piece of paper will not tell you much about whether that person is trustworthy or not.
And don’t worry that, in Ontario at least, the record check won’t tell you about that time the person was taken to the hospital, or those old charges that never went anywhere – that information was never that useful in the first place.
Yesterday, the government passed sweeping new legislation that will govern the 2019 federal election. Many of the changes are necessary and will go significant lengths to increasing engagement in the Canadian electorate. The legislation reduces barriers to voting in numerous ways, including by reinstating vouching as a way for voters to identify themselves at the polls, by allowing for the use of voter information cards, and by facilitating young adult voter registration. It also undoes what CCLA has argued are unconstitutional restrictions on the right to vote by Canadian citizens who are residing abroad, restrictions we recently fought at the Supreme Court.
Despite these changes, the new legislation fails to address a much discussed problem in Canada’s election laws, namely their failure to provide oversight with respect to the collection, use and disclosure of Canadians’ personal information by our political parties. Instead, the legislation only requires that political parties publish their privacy policies, while leaving application of these policies to these same parties.
“Trust us” is not a solution for safeguarding Canadians’ personal information. We argued for real and independent oversight before Parliament and no less than the Chief Electoral Officer and the Privacy Commissioner have argued the same, but the new election legislation nevertheless fails to address this well-known problem.
The legislation is party-centric in other troubling ways. Most notably, it includes and carries forward significant restrictions and registration requirements with respect to political advocacy by individuals and organizations.
For instance, during an election period, “third parties” (individuals or groups who are not a political candidate, registered political party, or otherwise an electoral competitor) are limited to spending approximately $4,000 in an electoral district on partisan or issue advertising, i.e., advertising on a position on an issue with which a registered political party or candidate is associated. Third parties are also subject to registration requirements under the Act if they spend $500 on “electoral advertising,” a vague concept that includes both partisan advocacy and issue advertising.
The government can and should take measures to ensure that our political discourse is not dominated by the wealthy few. But these kinds of restrictions on expression have the unfortunate effect of ensuring that our political discourse is instead dominated by well-organized and well-financed political parties. That’s because complex and opaque election rules, and particularly complex and opaque rules that capture the most minor of spenders, discourages civic participation by groups and individuals who have concerns that they might somehow violate some unknown or misunderstood election law.
For instance, the legislation requires individuals and groups to know, often in advance, whether advocacy on issues is regulated political speech. Is an ad campaign on labour rights or climate change an issue “associated with a candidate or a party,” and thereby subject to the legislation’s spending limits and registration requirements? Such questions are often vexed, with the answer depending on when, where, or how you ask the question. Better to stay silent than to risk running afoul of election laws.
Take groups who wish to campaign for or against the TransCanada pipeline. While such issue advocates might not share the same view on the pipeline as their preferred political party, their issue advocacy may well be considered electoral advertising given recent government actions on the pipeline and its likely prominence in election debates. And it is those without deep pockets and sophisticated legal counsel who might legitimately fear getting too close to any such limits.
The legislation’s spending limits on “third parties” pose additional hurdles to effective political expression. The monetary limits on expression make many kinds of meaningful issue-based campaigns, such as campaigns involving expensive placements in our national media, impossible. Indeed, some issue-based advocates who persistently advocate on issues outside of election periods—such as the TransCanada pipeline—might feel the need to suspend their campaigns during election periods out of fear that the issue can be construed as too closely aligned to a particular party. The predictable effect is that during what should be a time of heightened political discourse and heightened political engagement in Canada, namely a federal election, many “third parties”—individual Canadian citizens, civil society groups, community organizers, and the like—will feel compelled to stay on the sidelines.
Police leaders are violating the civil liberties of their own ranks and perpetuating a culture of fear and prohibition when they place what comes close to a blanket ban on cannabis use by off duty police. If they can drink beer on their week off, let ‘em light up their spliff. It just may be that we’ll all be better off.
Let’s put things into perspective. It’s been seven weeks since Canada (sort of) legalized cannabis – and so far as I can tell, the sky hasn’t fallen. Generally, Canadians seem to be taking legalization in stride. Granted, it’s early days and my sample size is both small and biased. Real evidence comes from years of study, not anecdotes. But, for what it’s worth, I haven’t seen a rash of people showing up impaired to CCLA offices or my university classes. In my walks through downtown Toronto, where smoking and vaping is legal in most public places, October 17th came and went without a noticeable increase in public haze. We don’t know yet how it’s affecting this gigantic mass of land that is Canada. But so far, Hell has not arisen.
Many employers’ initial preparation for legalization, however, took place in a context of fear and paranoia, which led to some pretty questionable workplace policies. And at the top of the ‘questionable policy’ list are some of Canada’s biggest police services, which you might have hoped would take a more rational approach to employee cannabis consumption given that they will frequently be on the front lines of understanding and enforcing the new laws.
Several police services are taking the ‘you need to come to work fit for duty’ approach. But if you work for the Toronto Police Service, the RCMP, or Calgary Police, the workplace cannabis policies impose what amounts to a complete ban on officers ever consuming legal, recreational pot. The RCMP policy and the TPS interim policy prohibit officers from consuming pot 28 days prior to being on active duty, while in Calgary the police service opted for an outright prohibition.
Obviously we don’t want impaired police officers patrolling our streets. A cautious approach is one thing. But some of these decisions fall more on the side of reefer-madness than evidence-based policy making. Health Canada advises that the acute effects of cannabis generally start within 30 minutes (inhalation) and 3-4 hours (edibles). Acute effects last between 2 and 4 hours, with the outer limit being 24 hours. It’s hard to see how you jump from the science on impairment to a 28 day, or longer, prohibition.
But even more to the point, workplace impairment can be caused by any number of perfectly legal, everyday substances and activities. Allergy pills. A teething baby. Muscle relaxants. Your buddy’s 40th birthday party. Divorce. The release of the newest, most binge-worthy Netflix series. The list is endless.
In general we accept that actions taken in employees’ time off can have an impact on workplace performance, and we trust employees to be reasonably able to do their jobs when they show up – or take a personal day if they’re not up to it. So why are some police services focusing on cannabis as the one and only legal substance that merits its very own workplace abstinence policy? Tom Stamatakis, the head of the Canadian Police Association, is right when he calls this an “offensive approach” that effectively says, “we don’t trust police officers to make the right decision when it comes to reporting for work fit for duty.”
From a civil liberties perspective, workplace policies that unjustifiably reach into the private lives of employees should be a concern to us all.
But we should also pay attention to the implications of these abstinence policies for police enforcement of our criminal law.
How are the officers on the front lines of our justice system supposed to exercise their informed, professional discretion about when to criminally charge a person for a cannabis-related offence if they are surrounded by a workplace culture that still reflects irrational fears, prohibition, and punishment?
There are plenty of crimes still associated with the consumption, possession, and distribution of cannabis. And a whole bunch of new enforcement dollars being channeled to police services to go along with our new legal cannabis regime.
Impaired driving, organized crime, and youth have now become the primary targets of our criminal cannabis laws. Our new cannabis criminal laws lay a legal minefield for ordinary Canadians – how will these new crimes be enforced? And what will be the policing response to our newly focused concern on keeping cannabis out of the hands of youth? Are we going to see reinvigorated law enforcement efforts targeting teenagers as well? Will we be increasingly criminalizing youth in the name of protecting the children? It is a risk that we need to be alert to. And one that we can help forestall by having rational, evidence-based conversations about appropriate societal responses to cannabis use.
We can only hope that some of those conversations are happening inside police services right now.
Ontario’s Auditor General this week took a provincial agency to task for its role in a Wall Street Sci-Fi plot that’s sadly true. The characters for Toronto’s version of a futuristic, digital Smart City were not as smart as they ought to have been, she concluded.
Ever since Waterfront Toronto and Sidewalk Labs announced their Quayside smart city project, we at CCLA have been asking questions about privacy and security risks and the conundrum of consent for data collection in a sensor-studded city. There are also serious questions about intellectual property, public and democratic accountability, and whether the city and its residents, will be the true beneficiaries in the Waterfront/Sidewalk partnership.
It wasn’t supposed to go this way. A city “built from the internet up.” That was the original pitch by Sidewalk Labs in response to an RFP issued by Waterfront Toronto for an innovation and funding partner to develop the quayside waterfront lands in Toronto. It was an ambition worthy of a subsidiary of Alphabet, Google’s parent company.
But all it takes is a quick spin through a newspaper pretty much any day of the week to see the privacy problems inherent to the internet’s primary business model—collecting buckets of data from everyday interactions and leveraging it for profit. What happens when we start building the capacity to collect information about our city citizens into our streets and buildings? And then what happens when that data is integrated with even more data, maybe information from, say, our personal smartphone running Google’s operating system?
On December 5th, Ontario’s auditor general’s annual report raised many of those same questions, while at the same time questioning the fairness of the process that led to Sidewalk Labs’ winning proposal. The report takes Waterfront Toronto to task for failing to “adequately consult with any level of government” regarding the project. It also identifies “concerns in areas such as consumer protection, data collection, security, privacy, governance, antitrust and ownership of intellectual property,” stating “These are areas with long-term and wide-ranging impacts that the provincial government, along with the City of Toronto, needs to address from a policy framework perspective to protect the public interest before this initiative proceeds further.”
The Auditor General of Ontario is right. Technological innovation can contribute to public good, or do harm. A city doesn’t get smart when it installs shiny new tech toys. It gets smart when residents, experts, technologists, elected officials, civil society, and other stakeholders engage in a serious process of imagining and then building a city that meets identified needs in ways that we can live with, and that reflect our shared values for a sustainable, inclusive, rights-respecting home. The auditor general’s report is a wake-up call.
But it’s not the first. Former Ontario privacy commissioner and privacy expert Ann Cavoukian resigned from her role as internal privacy watchdog in October. There were many other resignations, all of which ought to have alarmed all three levels of government.
Other global Smart Cities are doing this differently than Toronto. But Sidewalk Labs spokesperson Keerthana Rang responded to the Auditor’s report with defensive spin which will probably not satisfy either Toronto residents or the auditor. Time for Toronto to get smarter on this file, and fast.
The Supreme Court’s decision in R. v. Vice Media Canada Inc. is not the victory for press freedom that CCLA was hoping for. Indeed, for Vice Media and reporter Ben Makuch, the decision is a blow and requires a reporter to hand over his work product to the police. This outcome is disturbing, and I do fear the chill it could create. At the same time, I do not see the Vice decision as a total defeat for press freedom. I believe there are parts of the decision that could be used to push freedom of the press further in future cases – undoubtedly a good thing.
For many years, our courts have been instructed to balance police investigative needs against the importance of the role of the press and the media’s right to privacy in gathering and reporting on the news. Too often, the balance favours police at the expense of the press. The Court had an opportunity to shift this paradigm by taking a new approach to when and how police investigations can implicate the press. While it declined to change the law fundamentally, the Court’s decision does have some positive aspects and, if they trickle down to lower courts – admittedly, a big “if” – these could be used to shield the media from unreasonable police intrusions in the future.
For example, while the majority of the Court declined to require that the media be given notice in all cases where a production order is sought, it does acknowledge that unless some urgency or circumstances justify proceeding without the media present, it may be desirable to give notice. A modification to the standard that a reviewing court will use when scrutinising a challenged production order bolsters this language. The Court allows for a de novo review (that’s lawyer speak for a wholesale reconsideration) if the media was not given notice and can establish that the court that granted the order was missing information that might have made a difference.
The silver lining in the case is Justice Abella’s concurrence, signed on to by three other members of the Court. Justice Abella explicitly acknowledges that freedom of the press is not merely a corollary of freedom of expression, but has distinct and independent protection in the Charter. The majority did not agree to go that far, but their reasons suggest that is because it was not necessary to do so, not because there is necessarily disagreement on this point.
While last Friday’s decision is disappointing, it involves a case that unfolded before Parliament passed the Journalistic Sources Protection Act. That legislation strengthens protection for the press and should help shift the balance further as cases that interpret it come before the courts. CCLA will continue to advocate for strong protections for the press, to protect both the important work that journalists do and Canadians’ right to know.
A week after Black Friday may render Bleak Friday for press freedom if the Supreme Court of Canada dismisses a major press freedom appeal. In R. v. Vice Media Canada Inc., 2017 ONCA 231, the Ontario Court of Appeal delivered bad news for press freedom. It was a double loss for the media because not only was Vice Media forced to hand over their reporting to the police, but the reporters could not report on the very parts of the police investigation used to justify the conscription of the media into a police investigation. If the police relied upon junk evidence to get the warrant ripping the confidential material out of Vice Media’s hands, Vice Media couldn’t challenge that junk because it was subject to a gag order. In short, police powers were expanded, and press freedom was shrunk.
The Canadian Civil Liberties Association enlisted the legendary litigation firm Lerners LLP to make our arguments before the Supreme Court of Canada, which is expected to release its decision in the case this Friday, November 30th. The case puts the question of protection of journalistic sources at its centre and comes out of reporting done by Vice Media reporter Ben Makuch on Farah Shirdon, a man who is alleged to have left Canada to join the terrorist group ISIS. Makuch had several text message conversations with Shirdon, resulting in Vice’s publication of three stories about him. The RCMP sought and was granted a production order by the Court, requiring Makuch to turn over the conversations with Shirdon.
The court also said that the background material justifying the production order had to be sealed and thus would not be public. Makuch and Vice have challenged the production order, arguing that this kind of journalistic work product must be protected when it involves a confidential source. If sources knew that their communications with journalists could be turned over to the police for investigative purposes, there would be no reason to speak to the press, undermining the public’s right to know. Vice and Makuch also challenged the sealing order and publication ban which applied to effectively shield from public scrutiny the evidence that the state relied upon to get the production order.
CCLA’s focus in the case was on the publication ban and the public’s right to know. We argued that an indefinite publication ban is not appropriate, especially when much of the material subject to the ban is already in the public domain. We also argued that the material used to support the granting of a publication ban must be made public if a sealing order cannot be justified. Public scrutiny of an investigation is critical to an accused’s fair trial rights and has to balance with any allegedly prejudicial effect associated with publishing information from the police investigation.
The Supreme Court’s decision on Friday will be an important one for press freedom in Canada and for the openness of our courts and criminal justice system. Will the Court shrink the space available to journalists to conduct investigations in the public interest, or will it stand up for the rights of Canadians to a free and independent press?
CCLA will be watching.