Solitary confinement is no joking matter – and the…

Noa Mendelsohn Aviv
Director of Equality Program
mendelsohnaviv@ccla.org

 

 

 

 

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.

Sign our petition demanding Canada stop fighting these necessary reforms

CCLA at the Supreme Court: Privacy Lost

Brenda McPhail
Director of Privacy, Technology & Surveillance Project
bmcphail@ccla.org

 

 

 

 

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 

CCLA at the Supreme Court: What happens when the…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

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.

 

Demanding our Privacy Rights Get a Seat at the…

Brenda McPhail
Director of Privacy, Technology & Surveillance Project
bmcphail@ccla.org

 

 

 

 

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