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CCLA at the Supreme Court: The Worst Carding Case…

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

 

 

 

 

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.

CCLA awaits the decision and is available for comment any time after its release:  media@ccla.org.

 

You can read our factum here and our earlier summary of the case can be read here.

CCLA Voices Concern Over Several Measures in Budget Bill

Executive Director and General Counsel, Michael Bryant, speaks on behalf of CCLA at the Standing Committee on Finance and Economic Affairs on May 7, 2019 considering Bill 100, An Act to implement Budget measures and to enact, amend and repeal various statutes.

A Phone Is Not a “Good”, It’s a Private…

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

 

 

 

 

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.

More information:

Read the Committee Report.

Read the CBC stories about the most recent case.