e-Bulletin February 2014

February 4, 2014

Greetings from CCLA,

We are well into 2014, which also marks the 50th anniversary of the Canadian Civil Liberties Association!  We are planning a series of celebratory events and we invite you to join us for as many as you can.  Please stay tuned to our website for more information throughout the year, and mark your calendars for our March 21st research symposium Pathways to Privacy,  described below, which will be held in Toronto and is funded by a grant from the Office of the Privacy Commissioner of Canada.

In this issue, you can read more about our ongoing work on surveillance and accountability, the new  “cyberbullying”  bill, policing and public safety, and  refugee protection.   If you haven’t done so already, please sign up for our daily news links to keep up to date.

For 50 years, CCLA has been at the forefront of protecting and fighting for civil liberties protection in Canada.  We could not do this work without you and we thank you for your support.

Happy reading and stay warm!

Sukanya Pillay
Acting Executive Director & Interim General Counsel

Table of Contents

  • CCLA Continues to Advocate for Greater Oversight of Government Surveillance
  • Federal Cyberbullying Bill Misses the Mark
  • December 2013: a good month for civilian police oversight
  • Responding to the Exclusion of Refugees
  • CCLET has a new Lesson Plan: Privacy, the Internet, and that Phone in Your Pocket 
  • CCLA to host Pathways to Privacy Research Symposium
  • CCLA Flips Its Wig to Promote Access to Justice
  • Book Launch: A. Alan Borovoy’s At the Barricades

CCLA Continues to Advocate for Greater Oversight of Government Surveillance

CCLA sent comments to the Federal Privacy Commissioner of Canada regarding the report Checks and Controls: Reinforcing Privacy Protection and Oversight for the Canadian Intelligence Community in an Era of Cyber-Surveillance. We made eight clear recommendations including  clearer information-sharing rules among Canadian agencies and with foreign agencies; integrated oversight and review mechanisms; and strengthened structural oversight.  CCLA also weighed in on the public debate, arguing in the media for greater accountability in intelligence and surveillance operations which you can read here.


Federal Cyberbullying Bill Misses the Mark

At the end of November, the federal government introduced Bill C-13, an omnibus bill that would amend a number of laws but, most significantly, would make substantial changes to the Criminal Code. The Bill’s short title, the Protecting Canadians from Online Crime Act, and the government’s promotion and narrative around the Bill, suggests it is focused on the very real problem of cyberbullying.  There is little doubt that cyberbullying is a real problem that has had, in some cases, tragic consequences.  Canada has seen a number of teen suicides that appear to have been at least partially spurred by online attacks.  It is thus not surprising that the government has turned to the criminal law to try to address the problem. 

Unfortunately, Bill C-13 has very little to do with stopping or reducing cyberbullying, or protecting its victims.  One provision of the legislation would create a new offence so that those who transmit an “intimate image” of an individual online, without their consent, could be prosecuted.  The rest of the Bill would expand police investigative powers, even though some of these powers were supposed to be off the table in light of the public outcry when the government tried to pass its “lawful access” legislation.  Some of these provisions have been re-introduced in Bill C-13 in identical form to the previous legislation.  Even though the most privacy-invasive provisions from the “lawful access” bill haven’t re-surfaced, the Bill contains a number of concerning powers.  For example, it grants immunity to persons who voluntarily preserve data or provide police (and other public officers) with data where doing so is not illegal under other legislation.  This grant of immunity extends to both criminal and civil law and arguably provides internet service providers with incentives to hand data over to police even in the absence of any demonstrated or compelling need.  The Bill would also allow officers to get warrants for tracking devices and transmission data.  Through these warrants police could collect an enormous amount of information about an individual, and yet the Bill does not include the same kind of safeguards that exist for other intrusive warrants, such as wiretaps.  

Cyberbullying is a serious problem but it is not at all clear that Bill C-13 will do anything to address it.  CCLA will be watching this Bill closely as it is debated in the House of Commons and goes before a Committee.  We will oppose attempts to expand police investigative powers absent a compelling reason and without appropriate safeguards.  Watch our website for updates on CCLA’s advocacy with respect to Bill C-13.  

December 2013: A Good Month for Civilian Police Oversight

On December 19, 2013, the Supreme Court issued a strong ruling in the case of Wood v. Schaeffer, reinforcing the strength of the independent civilian oversight scheme established to respond to police-involved serious injuries and deaths.

The facts that gave rise to the case stemmed from two separate incidents in June 2009, when two men were shot and killed by Ontario Provincial Police officers.

On June 22, 2009, Constable Graham Seguin responded to a call about an alleged assault on a door-to-door sales man.  When he arrived he saw Douglas Minty, a 59-year-old developmentally disabled man, approach him holding a knife.  He ordered Mr. Minty to drop the knife, Mr. Minty did not, and Constable Seguin fired five shots.

Two days later, on June 24, 2009, Constable Kris Wood was investigating a boat theft.  Levi Schaeffer was a 32-year-old man camping in the area. Mr. Schaeffer had been diagnosed with schizoaffective disorder, panic disorder and anti-social personality disorder. He had a knife, and when Constable Wood and another officer tried to arrest him, there was an altercation.  Constable Wood fired two shots and killed him.

Police officers have a legal duty to complete their notes accurately, independently and as soon as possible after an incident. In both cases, however, when senior officers arrived on scene they instructed all police involved to not to write any notes about the event until they had spoken to lawyers.   In one case, both the witness and subject police officer consulted the same lawyer, and rough drafts of the notes were sent for legal review before the official notes were completed.  The rough drafts were never provided to the SIU, and in both investigations the SIU found that there was not enough evidence to lay charges.

The Minty and Schaeffer families brought a case before the courts, seeking a declaration that the police consultation with lawyers prior to completing their notes was unlawful.

The CCLA intervened before both the Ontario Court of Appeal and the Supreme Court, arguing that police officers involved in an investigation by the Special Investigations Unit (SIU) into the use of force resulting in death or serious injury to a civilian are not entitled to the assistance of legal counsel in the preparation of their duty notes of the incident.  Duty notes are notes that are prepared in the normal course of an officer’s day on the job. When there has been a police-involved death or serious injury, witness officers must hand their notes in to the SIU, which is the independent body that conducts criminal investigations into such occurrences.  It is essential to the integrity of the investigation and public confidence in the process that officers’ notes be contemporaneous and independent, thereby ensuring that they are accurate and unedited accounts of what occurred.  Allowing lawyers to review, edit, or advise police officers on the content of their notes would significantly undermine the independent oversight regime.

In its ruling, the Supreme Court found that police officers should not be permitted to speak with a lawyer before preparing his or her notes. In the words of the majority:

Permitting police officers to consult with counsel before their notes are prepared is an anathema to the verytransparency that the legislative scheme aims to promote.  Put simply, appearances matter.  And, when the community’s trust in the police is at stake, it is imperative that the investigatory process be — and appear to be — transparent.


Responding to the Exclusion of Refugees

CCLA has been granted intervenor status in a new Supreme Court of Canada case dealing with the exclusion of refugees (Louis Alberto Hernandez Febles v. Minister of Citizenship and Immigration).  Mr. Febles is a refugee from Cuba who spent many years in the United States.  While there, he committed two offences, was convicted, and served his time.  He later came to Canada seeking refugee status on the grounds of his well-founded fear of persecution in Cuba for his political beliefs.

Despite the fact that Mr. Febles had served his sentences, and 17 years had passed since his conviction, the Canadian refugee Tribunal held that Mr. Febles was excluded from the definition of a refugee because of having committed a “serious non-political crime” outside of Canada.  The Tribunal stated that it did not have jurisdiction to consider Mr. Febles’ rehabilitation and whether he was a current danger to Canada.  This is different from every other class of immigrant or visitor to Canada, whose rehabilitation is a standard factor that would be considered.

CCLA is intervening in the case to address the appropriate interpretation of the exclusion provision of the international Refugee Convention.  CCLA asserts that Canada has a duty to ensure that bona fide refugees are provided protection, and recognizes that serious criminals may be excluded from refugee protection.  CCLA will argue that the refugee tribunals need to have the flexibility to take into account relevant factors for refugee claimants.  Barring the tribunal from considering rehabilitation in every case, irrespective of the specific facts, is arbitrary, discriminatory and violates basic notions of fairness and the principles of fundamental justice set out in s.7 of the Charter.

CCLA is represented by Peter Edelmann (Edelmann and Company Law Offices).


CCLET has a new Lesson Plan: Privacy, the Internet, and that Phone in Your Pocket

education-crit-thinking

The Canadian Civil Liberties Education Trust (CCLET) has created useful and engaging curriculum linked plans that give classes an opportunity to think critically about important issues.

CCLET has found that section 8 of the Canadian Charter of Rights and Freedoms is one of the most difficult for people to understand. Why do we have the right to be free from unreasonable search and seizure? If you have done nothing wrong, why would you care? For those of us who are concerned for the privacy and dignity of every individual, we understand that we need our children to ask important questions at every age. CCLET’s newest lesson plan, entitled Privacy, the Internet, and that Phone in Your Pocket, encourages youth to do just that.  Through case studies and guiding questions, this resource will help teachers and students to look critically at the privacy issues that appear in the news and in our schools nearly every day.

We invite all readers and teachers to check out this and other useful learning resources at http://ccla.org/cclanewsite/education/elementary/.   


CCLA to host Pathways to Privacy Research Symposium

 

Public Panel Discussion & Privacy Fair 

March 20, 2014 | 6:00 – 8:30 pm
Venue TBA

Pathways to Privacy Symposium: Helping Canadians Find Pathways to Privacy

March 21, 2014 | 8:30 am – 5:00 pm
The Faculty Club, University of Toronto
41 Willcocks Street, Toronto ON

 

CCLA has been awarded funding by the Office of the Privacy Commissioner of Canada (OPC) to organize and host the second Pathways to Privacy Research Symposium in Toronto. We are organizing the symposium in partnership with the University of Toronto, Ryerson University, Sherbrooke University, and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC).

Entitled “Helping Canadians Find Pathways to Privacy,”, this symposium will on recent research conducted under the OPC’s Contributions Program, and will provide a forum for academic researchers, civil society and public interest groups, and individuals to discuss privacy research results in the private sector and their relevance for Canadians. Sessions are open to the public. We will record and broadcast sessions via a live webcast to ensure greater accessibility. The event materials and sessions will also be available in both English and French.

Parcours2Protection de la vie privée 2014

Le symposium de recherche Parcours de protection de la vie privée sera organisé par l’Association canadienne des libertés civiles (ACLC), en partenariat avec des co-requérants de l’université de Toronto, l’université Ryerson, l’université de Sherbrooke, et le Clinique d’intérêt public et de politique d’internet du Canada Samuelson-Glushko (CIPPIC), et aura lieu à Toronto en mars 2014. L’initiative des symposiums de recherche Parcours de protection de la vie privée a été mise en place par le Commissariat à la protection de la vie privée du Canada afin de mieux faire connaître les résultats des projets de recherche et de transfert des connaissances en matière de protection de la vie privée au Canada.

L’événement se déroulera sous le thème « Aider les Canadiens à trouver la voie de la protection de la vie privée ». L’initiative favorise et appuie l’organisation de symposiums mettant en vedette des projets financés par le Programme des contributions du Commissariat et par d’autres bailleurs de fonds. Les symposiums sont conçus pour faciliter le dialogue entre les chercheurs et ceux qui appliquent les résultats des travaux de recherche, de façon à ce qu’un plus grand nombre de gens puissent utiliser ces derniers et en tirer parti. Les symposiums donnent également aux intervenants qui s’intéressent à la promotion du respect de la vie privée et à la protection des renseignements personnels la possibilité d’élargir leur réseau et d’établir des partenariats. Les séances seront ouvertes au public, en plus d’être enregistrées et diffusées en direct sur le Web afin d’assurer une plus grande accessibilité. Le matériel et les séances seront présentés en français et en anglais.

 

CCLA is Flipping Its Wig to Promote Access to Justice

FLIP-WIG-ebull

CCLA is participating in a new, multi-organization campaign, to promote and fundraise for access to justice. Flip Your Wig, an awareness campaign and a pledge-based fundraising event culminates on March 6, when members of the justice community and general public in Ontario will wear traditional judicial or wacky wigs to show their support for non-profit access to justice organizations like CCLA.Click here to register as a wig-wearing participant or to donate to the campaign.

All money raised during the Flip Your Wig campaign will be split evenly among the seven participating organizations: CCLA, the Association in the Defense of the Wrongly Convicted, Community Legal Education Ontario, the Metropolitan Action Committee on Violence Against Women and Children, Pro Bono Law Ontario, and Pro Bono Students Canada. 

Together and independently, these organizations:

  • Provide free legal help for people who can’t afford to pay a lawyer
  • Disseminate legal information to people who need help understanding their legal problems
  • Pursue justice for individuals who have been wrongfully convicted of a crime
  • Educate youth about the legal system and their rights and responsibilities as Canadians
  • Expose rights violations in Canada
  • Encourage lawyers to donate their time to provide free legal assistance

You don’t have to wait until March 6th to donate to access to justice. CCLA and Pro Bono Law Ontario are joining together to host a Flip Your Wig bar night.  

 

The Elephant and Castle

212 King Street West, Toronto

February 24th, 2014

5:30 pm

 

There will be a small cover charge which will be donated to the Flip Your Wig campaign.

Book Launch: A. Alan Borovoy’s At the Barricades

CCLA invites you to attend the launch for At the Barricades, a memoir by CCLA General Counsel Emeritus A. Alan Borovoy. The event takes place Wednesday, February 26, 2014 from 6:00 – 8:00 p.m. at Ben McNally Books (366 Bay St., Toronto).

Come celebrate one of Canada’s leading champions of civil liberties, who spent over forty years ‘at the barricades’ with CCLA!

at-the-barricades