Noa Mendelsohn Aviv
Director of Equality Program
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: firstname.lastname@example.org.
Michael Bryant, CCLA’s Executive Director and General Counsel, will be presenting this deputation on facial recognition technology today at the Toronto Police Services Board meeting. This is a public meeting and will be taking place at 1:30 PM in the auditorium of the police headquarters.
toronto police board deputation
Executive Director and General Counsel
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/
Director of Privacy, Technology & Surveillance Project
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.