News and Analysis

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/

Court Cases

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

News and Analysis

Open Letter from CCLA: Calling for a Reset on…

OPEN LETTER 

March 5, 2019 

The Rt. Hon. Justin Trudeau
Prime Minister of Canada
House of Commons
Ottawa, Ontario K1A 0A6

The Hon. Doug Ford
Premier of Ontario
Legislative Building
Toronto, ON M7A 1A1 

His Worship John Tory
Mayor of Toronto
100 Queen St W,
Toronto, ON M5H 2N2 


RE: Waterfront Toronto Reset

Dear Prime Minister, Premier and Mayor, 

We are writing to you about the Smart City initiative for the Toronto Eastern Waterfront, the Quayside Sidewalk Toronto project. The Canadian Civil Liberties Association (“CCLA”) believes that your decisions and activities, through Waterfront Toronto [1] and otherwise, are unconstitutional and contrary to statute, common law and administrative law. We respectfully submit that it’s time for a reset of this projectHit CTRL-ALT-DELETE on Sidewalk Toronto:  beforbidding and procurement, you must first legislate protections for the people from the risks of surveillance capitalism on our streets.   

CCLA is an independent, non-partisan, national organization that’s been promoting and defending Canadians’ rights and freedoms since 1964. Small but mighty, we have sought to insert ourselves into every major civil liberties issue facing Canada for the past half century. CCLA, on this issue, through this letter, stands on the shoulders of countless citizens, activists, experts, and journalists in Canada and abroad, on the streets, through public forums, committee meetings, online and on campus. 

CCLA submits that Sidewalk Toronto and the Quayside project should be reset, with your creation,’ [2] Waterfront Toronto, issuing no new Quayside RFP until all three levels of government, after adequate public consultation, have established digital data governance policies for the appropriate collection, ownership, use and residency of personal information and other data obtained from public places in any embedded sensor laden, data harvesting Smart City contemplated for QuaysideThis was the path trodden by Smart City Barcelona, which changed course in 2011, rendering it a global leader for citizen-focused Smart Cities.  

Not for the first time, private enterprise got ahead of you and strove to exploit an unregulated frontierMeanwhile, the legal vehicle you created to be the “public advocate and steward,” [3] Waterfront Toronto, put the cart before the horse.  Powers were given away to a private enterprise that cannot legally be given away.  Waterfront Toronto also exceeded its own powers under its governing statute. Waterfront Toronto was supposed to be a real estate revitalization company, not an unelected, unaccountable Data & Privacy Czar, lacking any such authority from Parliament, Queen’s Park or City Hall.   

The constitutional problem boils down to outsourcing the public interest to a private company without any democratic or legal authority.  That in turn risks civil liberties within a free and democratic society.  Only elected legislators have the constitutional authority to enact civil liberties protections in law.  But you left that task to a subsidiary of Alphabet Inc.  Protecting the public interest, forging the rules of the road for data, surveillance and privacy within a Smart City:  that’s your constitutional job, as leaders of our three levels of government.  The constitutional error that arises with outsourcing the public interest is manifold but it’s akin to a government retaining Exxon to design a country’s energy policy. 

What are the Charter risks?  We believe that the Waterfront Toronto-Sidewalk Labs Framework Agreement and the Plan Development Agreement (“PDA“) contemplate a non-consensual, state-authorized mass capture of Canadians’ personal informationAs such, the Charter is engaged and breached: namely, Canadians’ right to privacy under the Chartersection 2 (fundamental freedoms of assembly and association), section 7 (life, liberty and security of the person), and section 8 (unreasonable search or seizure). The PDA also violates privacy statutes applicable to Waterfront Toronto, which is not above the law.   

The CCLA is contemplating litigation in this matter because your respective governments behave as if unaware that, constitutionally, the emperor has no clothesCanada needs you to develop the federal, provincial and municipal policies for a Smart City (whether at Quayside or elsewhere in Canada) before the procurement process, not after. As suchCCLA argues for a reset of Sidewalk Torontorather than a scrapping of Smart City altogether.  A change of course is needed. Ask not what your country can do for technology – ask what technology can do for your countryIf you won’t reset through government or by elected assembly, civil society may need to through the courts. 

With this open letter to you, we are also asking the public to reach out to their democratic representatives, if they agree, to hit the reset button on Smart City Toronto. In the spirit of public debate, we are also encouraging your governments to respond to this letter, and debate these ideas in your legislative assemblies.   

Are you contemplating such a reset? If so, when and how?  If not, why not?  Thank you for considering the foregoing, and we look forward to your response. 

 

Sincerely, 

 

Michael Bryant
Executive Director & General Counsel
Canadian Civil Liberties Association

Dr. Brenda McPhail
Director of Privacy, Technology & Surveillance
Canadian Civil Liberties Association 

 

———

[1] Formally the “Toronto Waterfront Revitalization Corporation”, operating as “Waterfront Toronto”and self-described as follows: “Waterfront Toronto is the public advocate and steward of waterfront revitalization. Created by the Governments of Canada and Ontario and the City of Toronto, Waterfront Toronto is mandated to deliver a revitalized waterfront” [emphasis added]. https://www.waterfrontoronto.ca/nbe/portal/waterfront/Home/waterfronthome/about-us

[2] Ibid.

[3] Ibid. 

 

News and Analysis

Presto Change-O Privacy Disappears!

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

 

 

 

 

December 31 is the end of an era for Torontonians. It’s the last day, ever, that we can use a metropass on the Toronto Transit system. From January 1 2019, the Presto electronic payment system takes over, and that means that our ability to travel by bus or subway through the city untracked has radically decreased. We could buy a metropass with cash, use it every day all month by showing it to a fare collector, and no record that connected us with that card would be created. Not so with Presto.

Presto, now in operation in Greater Toronto, Hamilton and Ottawa transit systems, is developing a reputation as the system we love to hate. But the gripes you hear floating around about the switch from pass to Presto are focused on the fact that the Presto system is plagued with dysfunctional card readers, auto-fill errors that leave riders unexpectedly out of funds, and vending machines that are better at taking money than spitting out new cards. These are all irritating, but they’re likely to get fixed over time.

The big issue that we’re not talking much about at all is privacy—when Presto becomes the only option, anonymous travel becomes pretty much impossible. That’s because of the way the Presto system is designed, as a re-loadable card that requires people to create an account and probably link a credit card to maximize benefit and convenience.

Presto is optimized to operate for identified users. When we become an account holder, benefits include the ability to cancel a card if it’s lost, the ability to check to confirm we’re only getting charged for the trips we’ve taken, and the ability to automatically re-load a card by linking it to a credit card. But all that convenience comes at a cost. Every ride is tracked. Every time we tap the card our presence is recorded. That information can be shared with police, transit safety officers or special constables, without a warrant in many cases. The records are stored for at least five years, according to the Presto terms of service. And to be clear, much of the data collection is not a necessity, it’s a design choice. Many of the benefits—including online reload and reviewing chargescould be possible without recording your location every time you tap, that’s just not the way the system was designed.

Technically, you could pay for a presto card and a monthly pass in cash at a service counter and avoid all that data collection by choosing not to register the card. Your trips would still be linked to the card, but not explicitly to your identity. Of course, you’d lose the option to cancel the card if it gets lost (making it much like the metropass), to autoload or autorenew. But the next month, if you didn’t want the data to accumulate, you’d have to replace the card and pay cash for another one. So privacy becomes hard, it becomes more expensive, and when those two factors combine, it becomes more and more unlikely.

It’s reasonable at this point to be asking, why should this matter? Why care? Everyone collects data now, right? Of course, the answer to that is increasingly, routinely, yes. And that’s the biggest reason why the Presto card should give us pause. Realistically, it wasn’t designed to be the ultimate transit surveillance device. No one sat down and said, how much information can we scoop up about transit users? Rather, the conversations were probably very much about user convenience, about providing features to make using transit easier, and about reducing costs for the transit authority, and the data collection was a means to an end without much thought about other implications. Presto is just an example of the way the world now works—and that’s the problem.

Because it’s happening in all aspects of our lives again and again—things we use to navigate our daily routines are being connected, networked, generating data either purposely or incidentally, which then can be used in ways that may benefit us, or may not, but either way it’s largely out of our control. Transit passes, cell phones, thermostats, watches, cars, even sex toys, everything is collecting information. Sometimes the data is needed to make a device do cool stuff. Often it’s also collected whether or not it’s needed for the initial functionality because it can add to the value proposition for the creator if the device makes money when it’s bought and then more money, perpetually, as its use creates a potentially profitable data stream.

We are moving, incrementally, device by device, towards a world where the price of participating in modern society is surrendering the sometimes trivial, sometimes intimate, but fundamentally personal minutiae of our daily lives to whoever has found a way to collect it. Each little piece feels, well, little. Each trade-off feels minor, often made in the context of an immediate gain—I want that app now, click yes and move on. But in our big data, algorithm-driven world, all those tiny bits, all those walks, talks, clicks and swipes, are being combined to create a portrait of us that can help reveal things to others that we don’t even know about ourselves. And we don’t know who those others are, most of the time, or what they will do with the information, or even if or how their actions will affect us. Maybe they will, maybe they won’t, and often we’ll never know.

We need to think about this, not blindly acquiesce. We need to make choices, not accept products that either deliberately or accidentally fail to include privacy protections as part of the design of the technology, and of the policies that surround it. We need better laws to protect us. We need to not fall for the old wheeze, if you’re not paying for it, you’re the product, because increasingly, we ARE paying for it but we’re still the product and we’re becoming convinced that we should be the product. We have to get past the notion that data is the new oil to fuel innovation and that cutting off the flow will shut down the machinery of the nation, because while oil comes from the remains of prehistoric organisms, data comes from—and has consequences forliving, breathing, humans. Of course businesses, even governments, want the capacity to collect information if it is useful or profitable, but that doesn’t mean we have to hand it over unquestioningly. We need to decide how much convenience is worth, and whether the benefits we get are worth what we give up in exchange, keeping in mind that privacy isn’t just a privilege, it’s a right, and we deserve it.

Presto isn’t the worst offender, it’s just a typical one. When the last metropass is swiped, probably a minute before midnight on December 31, the occasion will go unmarked. But we’ll have a little less privacy on January 1. As we begin a new year, we should resolve to demand better.

News and Analysis

CCLA Urges Toronto to Delay Purchase of Gunshot-Location Technology…

The following is a re-print of a letter sent to Mayor John Tory by the Canadian Civil Liberties Association on July 22, 2018.

Dear Mayor Tory,

The Canadian Civil Liberties Association has serious concerns regarding the impact of new police surveillance technologies for the city of Toronto. This fundamental shift to state surveillance in Canada could run afoul of constitutional privacy rights, risking the admissibility of any evidence obtained, resulting in untold millions wasted in technology and policing costs. Worse, if placed in poor or diverse neighbourhoods, the new technology may be an unconstitutional sucker punch to racialized communities of Toronto.

The risk of constitutional invalidation requires analysis yet to be done by the City. Give us 10 days to complete and submit a legal risk analysis to the City; this would also permit community feedback, and allow you to share the TPS case for this purchase, before the money is spent. When it comes to expanding public surveillance in Toronto, city residents deserve assurance that the decision to install privacy-invasive technologies is firmly supported by evidence that such an expansion is necessary, proportionate, constitutional, and effective, that the chosen technologies are the correct tools for the job at hand, and that they are designed and will be used in keeping with our civic values and constitutional protections.

In fact, privacy law requires such an approach. Video surveillance cameras collect personal information.  While the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) allows personal information to be collected for the purposes of law enforcement, guidance from the Information and Privacy Commissioner of Ontario specifies that in general, such collection of personal information must be not just useful, but “necessary.” In the absence of data suggesting that the public safety objectives of installing surveillance technologies will be met, and cannot be met using less intrusive means, it is reasonable to question whether the collection is truly “necessary”. Privacy best practice guidelines for video surveillance from both the federal Privacy Commissioner’s office and the Ontario Information and Privacy Commissioner also specify that the impact of the proposed video surveillance on privacy should be assessed before it is put in place, and public consultation should precede any decision to introduce video surveillance. It is unclear if the former has taken place in this instance, and certain that the latter has not.

As for ShotSpotter, this represents an entirely new technology which has not been to the best of our knowledge used in a Canadian context. It is thus entirely untested in relation to its privacy impacts, its potential use as a tool with evidentiary value in our Canadian courts, or the constitutionality of its use more generally. There is also a profoundly practical question yet to be answered: what is its purpose, exactly, and will that purpose be met? Does the City have reliable evidence that ShotSpotter technology is effective at reducing gun violence? This should not be anecdotal, word of mouth stories from the vendor or other individuals with a stake in justifying an investment in the system, but rather, grounded in data and conducted independently of system stakeholders. The only public data we have seen, conducted in 2016 by Forbes with statistics from seven US cities, suggests that 30-70% of alerts led to police being called out with no result. Playing it by ear, apparently, may have more cons than pros, if any.

We also have several specific concerns with terms of the ShotSpotter privacy policy, and with possible gag provisions that may be in the terms of service which would limit the ability of Torontonians to make access to information requests regarding the effectiveness of the technology if it is put in place, upon which we would be happy to elaborate.

Increased surveillance on our streets fundamentally changes our city. It decreases the privacy of every Torontonian walking on our streets. Before we are asked to give up that right, it must be demonstrated that the city and police response is necessary and proportionate and that the decision has been made with full consideration of the potential benefits and substantial risks. Please give us the time to inform your decision.

Sincerely,

Michael Bryant, Executive Director Director
Brenda McPhail, Ph.D. Director Director, Privacy, Technology & Surveillance Project

 

In the news

Don’t make uninformed decisions about guns based on fear, Michael Bryant says

“It’s unnecessary and misguided to submerge our city in video and audio technology, such that we’re constantly under police surveillance, contrary to our constitutional rights to privacy and liberty.”

Civil rights organization urges city hall to delay purchase of gunshot-location technology

Calling the technology a “fundamental shift to state surveillance,” the Canadian Civil Liberties Association is urging city hall to delay the purchase of equipment that detects gunshot locations through a network of publicly placed microphones.

CCLA, criminal lawyers raise red flags as Toronto approves increased surveillance

“Bryant and the CCLA have raised the alarm over the City of Toronto’s plan to increase surveillance and incorporate new audio technology, created by ShotSpotter, that is meant to detect gunfire through microphones placed on the city’s streets.”

Toronto, ShotSpotter, and the normalization of surveillance

“A motion was raised to eliminate this funding, in response to public opposition from groups including the Canadian Civil Liberties Association and a coalition of Black community activists, scholars and artists.”

Toronto approves gunshot-detecting surveillance tech days after mass shooting

“For the CCLA, the inclusion of microphone surveillance in Toronto’s anti-gun violence plan adds an Orwellian dimension to existing concerns that police resources will be deployed disproportionately to minority neighbourhoods.”

Toronto gun violence: ‘A product of what we didn’t do right’

The Canadian Civil Liberties Association also raised concern about the SharpShooter technology, which it said “could run afoul of constitutional privacy rights”.

What would gunfire-tracking technology mean for civil liberties in Toronto?

“This quite plainly constitutes increased surveillance, and the Canadian Civil Liberties Association is already raising concerns about the use of ShotSpotter in this country, noting that if it’s found to have violated Canadian law or Charter guarantees, the evidence it produces could be deemed inadmissible in court.”

CCLA wants Toronto to put a hold on purchasing gunshot-location technology

Michael Bryant, Executive Director of the Canadian Civil Liberties Association, joined The Exchange with Matt Gurney to talk about gunshot-location technology. 

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