In the fight for free speech, where does Facebook…

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

 

 

 

 

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.

CCLA at the Supreme Court: When the Immigration Act…

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

 

 

 

 

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.”

Manitoba Homicide Stats Generating More Heat Than Light

Michael Bryant 
Executive Director and General Counsel

mbryant@ccla.org

 

 

 

 

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.

 

Michael Bryant was Attorney General of Ontario during the Summer of the Gun, in 2005.  He is now Executive Director of the Canadian Civil Liberties Association, currently in Winnipeg for the Borovoy Conference at Robson Hall, University of Winnipeg, May 9th.  https://ccla.org/borovoy-conferences/

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.