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< class="what-entry-title">Five Reasons Why the Community Safety Act Should Never Come to Life in BC>
Door with sign saying Eviction Notice

The BC government passed the Community Safety Act in 2013 but it has never taken effect. The BC government recently reintroduced this troublesome Act by passing the Community Safety Amendment Act (Bill 13), which received Royal Assent on October 31st, 2019. BC’s Solicitor General Mike Farnworth has committed to implementing it in the near future to help “[p]eople living near ‘crack shacks’ and other dangerous nuisance properties.”[1]

If brought to life, occupants of a property, including homeowners, can be forced to vacate if a court finds that certain activities, which adversely affect the neighbourhood, have been occurring there. This process could be initiated by an anonymous complaint filed by a neighbour.

The BCCLA is staunchly opposed to this legislation for many reasons, and here are the top five:

1. The law is unnecessary.

It will circumvent laws with better procedural safeguards such as the Criminal Code and the Residential Tenancy Act, both of which already have provisions to deal with properties associated with criminal activities. The standard of proof required in getting a property closed is lower than what it would be in a criminal case.

2. The law will unjustly put people’s housing security at risk.

Anonymous complaints from neighbours could trigger an investigation by government officials and result in court orders targeting one or more occupants of the dwelling. Although the government keeps referring to “crack shacks” when defending the law, it can affect individuals and families whose activities are as benign as underage drinking or growing a cannabis plant that is publically visible. The habitual consumption of an “intoxicating substance” by a person of any age—even if they do not live on the property—can also be grounds for a complaint.

3. The law will disproportionately impact vulnerable, and often over-policed, communities.

In the spring, we joined a coalition of individuals and groups to draw the government’s attention to this problem, highlighting that Indigenous women and girls remain particularly vulnerable to the negative effects of state action, and to urge them to abandon it. In the context of growing racial tensions in BC, and throughout Canada, this law will open an avenue for targeted harassment driven by racism and other forms of prejudice. Many who are targeted in other provinces with similar draconian laws are “the more marginalized members of society,” and are not willing to get involved with the justice system due to previous bad experiences; they simply accept an eviction rather than returning to a courtroom.[1]

4. The law will be expensive to administer and the government has not been transparent about the costs.

This is why we have launched an FOI request to find out the public investment needed to create an office for a new Director of Community Safety and a team of officers to investigate a broad spectrum of complaints across the province. The high costs of this program is the key reason why the law hasn’t been implemented since 2013, [1] and we will be sure to let the public know the projected costs of this unnecessary law as soon as we find out.  We are concerned about setting up an unnecessary and expensive program that other jurisdictions like New Brunswick have started to de-fund.[2]

5. The law is unfair and unjust.

Any finding of guilt in a person’s past—no matter how long ago—can be used as evidence against them, or their friends or family members, if it relates to the alleged activities. Furthermore, if a person is found to not be criminally responsible, due to a mental disorder or other mental health issues, the court will still be allowed to draw negative conclusions about their current activities. No one should have their housing threatened because of a previous or ongoing disability.


[1] “I got to the point where I could pinpoint them watching my house’; Safer Communities and Neighbourhoods legislation marks 10 years”, Saskatoon Star Phoenix (online), June 22,2015, https://thestarphoenix.com/news/saskatchewan/i-got-to-the-point-where-i-could-pinpoint-them-watching-my-house-safer-communities-and-neighbourhoods-legislation-marks-10-years

[2] “Program against drug houses is a bust,”  Times Colonist (online), May 19, 2016, https://www.timescolonist.com/opinion/columnists/les-leyne-program-against-drug-houses-is-a-bust-1.2258473.

[3] “Program that let tipsters report neighbours cut back,”   The Daily Gleaner, August 24, 2019.

< class="what-entry-title">BCCLA statement on International Day against Homophobia, Transphobia, and Biphobia>
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On this day, the International Day Against Homophobia, Transphobia and Biphobia, BCCLA commemorates and pledges to continue the fight against the oppression of LGBTQI+ identity, and to promote genuine equality and freedom for LGBTQI+ people.  

The BCCLA has long fought against discrimination on the basis of sexual orientation and gender identity. LGBTQI+ rights are human rights. Around the world, there has been an increase in anti-LGBTQI+ rhetoric, and in many countries new laws are being passed that undermine the basic guarantees of human dignity and fundamental freedoms of LGBTQI+ people. In Canada, the new Alberta government came to power promising to make life more difficult and dangerous for queer and trans kids at school by eliminating legal protections for them and making it risky for them to participate in Gay Straight Alliance clubs in their schools. The Ontario government has repealed changes to the school curriculum that recognized LGBTQI+ equality, removing references to same sex couples and transgender and gender diverse people from health education in a move that is directly and explicitly discriminatory. We have to continue to fight for queer and trans equality in this country until it is fully realized.

People who identify as part of the trans and gender diverse communities in particular are among the most disadvantaged and vulnerable minority groups in Canadian society, and suffer a wide range of discrimination and violence. The situation is even more difficult for trans and gender diverse people who have multiple, overlapping, intersectional characteristics of their identity (for example, race, ethnicity, ability and class) that result in more complex and interconnected experiences of discrimination and disadvantage.  

It was only three years ago that the Vancouver Police Department developed a policy on ensuring non-discrimination in its interactions with trans people, after a BC Human Rights Tribunal decision found that the department’s practices systemically discriminated against them. In BC schools, while the government rightly promotes a school environment and curriculum that is inclusive of sexual orientation and gender identity (SOGI), and to eliminate systemic discrimination experienced by students, these changes continue to be vigorously resisted by some. Trans and gender diverse identities have only been formally, explicitly named as prohibited grounds of discrimination under federal and BC human rights legislation in the past 3 years. While they were already protected under tribunal and court decisions, the idea of sending a strong public signal by protecting them explicitly in the law was a long time in coming, and only happened after political fights in both Victoria and Ottawa.

There are people who continue to question whether trans and gender diverse people’s identities are real and whether they are worthy of equal protection under the law. We know that under our Constitution, they are entitled to their opinion – but in recognizing this, we make clear that the BCCLA disagrees with them in the strongest terms and it is our job to say so.

The law – and the BCCLA’s position – is clear: under the law, trans women are women, trans men are men, and they and all people with non-binary, Two-Spirit, genderqueer, agender and other gender diverse identities are worthy of equal protection, dignity and freedom.

Discrimination against trans and gender diverse people, and LQBTQI+ people generally, demands a robust response from governments, civil society, the business community, and people.

Today, we restate our commitment to this work.

Lindsay Lyster (she, her, hers)
President

Josh Paterson (he, him, his)
Executive Director

< class="what-entry-title">Why “Cyber” is Red-Hot (and why it’s a Burning Civil Liberties Issue)>

Protecting digital systems and being resilient to computer hacking are not new concepts.  But the implications of cyber security (‘cyber’, in the lingo) have recently exploded.   

Cyber security is increasingly a national security matter; think: cyber-attacks against critical infrastructure or military equipment (like power grids and satellites). Global media is full of warnings that cyber threats to elections are coming “fast and furious” and include everything from sabotaged electronic voting systems to “social media botnet amplification”.  The economy is dependent on the integrity of the financial system, which increasingly requires strong security.

Not to mention how “the Internet of Things” has made the inherent insecurity of computers go super-nova, the subject of security expert Bruce Schneier’s new book, Click Here to Kill Everybody. Because of the vast compounding of computer vulnerabilities that get linked through “the Internet of Things”, it’s more than data that is at stake, it’s lives (think of the computerization of cars, and what happens when a single remote hack could make all cars of the same make and model run off the road at the same time).

Many countries are responding to these threats, including Canada, which has a new National Cyber Security Strategy.  It is critically important that our cyber security be effective.  And it’s critical that the approach be one that also upholds civil liberties and human rights. Wherever security threats loom, the government’s “extraordinary” powers often undermine personal security in the name of “national security.” Examples of over-reach of security in the digital realm are clear, and notably highlighted in the case of National Security Bill C-51, and in the current Bill C-59.

What does Rights Protective Cyber look like? 

That’s a question we’ll be exploring at the Canadian Cyber-Security Dialogue in Ottawa on November, 8th.

Three of the proposals we’ll be advancing:

  1. Cyber strategies should focus on defensive purposes, not offensive cyberattacks;
  2. Cyber threats should not be used to expand domestic surveillance powers;
  3. Cyber security initiatives need genuine oversight and more transparency.  
< class="what-entry-title">Border rights: what you need to know>

Image of US border crossing by Canadian Pacific (Flickr Creative Commons)

Like many of you, I’ve been thinking a lot lately about my rights at the border. In light of reports that numerous Canadians have been refused entry to the United States for unclear or troubling reasons recently, not to mention the possibility that US officials could start demanding social media passwords from would-be travellers, I’m worried about delays, refusal, and protecting my privacy. And as a white woman born in Canada with an Anglophone last name, I probably have a lot less to worry about than many others.

Your rights at the border have been extensively canvassed in a wide range of media articles recently. We hope it’s useful to have this information available all in one place, but remember that the law can change and things are happening quickly, so don’t rely on this information for advice about your own specific situation.

There are also some tips for protecting your privacy at the bottom of the post.

Image of a sign welcoming refugees in Toronto by Canadian Pacific (Flickr Creative Commons)

The first thing to remember if you’re a Canadian travelling to the United States is that you do not have a free-standing right to enter the US. Many Canadians have been crossing the Canada-US border regularly and without incident for years, but it’s important to remember that US officials have no obligation to let you into the country and can deny you entry for all sorts of reasons that may seem arbitrary and unfair. And while it seems like we’re hearing about many more examples of troubling actions by US border officials right now, there have been many instances of unfairness over the years. Canadians have been refused entry to the US because of a history of depression and mental illness. The US didn’t lift its ban on ban on entry into the US by people with HIV until 2009.

The US Immigration and Nationality Act states that except in cases specified by Congress,

…no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

A spokesperson for US Customs and Border Protection (CBP) has stated that “CBP does not discriminate on the entry of foreign nationals to the United States based on religion, race, ethnicity or sexual orientation.” But despite these assurances, it may be difficult for some people to feel confident that their right to non-discriminatory treatment will be respected when we hear stories like that of the Muslim woman turned back after she was questioned about her religion, or the man denied entry after border guards read his profile on a gay hookup app.

The fact that information about both of these travellers was discovered on their cell phones raises another pressing question:

Can US border guards search my phone or laptop?

Image of laptop and phone by Ervins Stauhmanis (Flickr Creative Commons)

In a word: yes. And they can ask for your device’s password, too. You don’t have to give it, but it’s unlikely you’ll be allowed into the country if you don’t. The officer could even tell you that you’re banned from ever entering the United States, but there’s no legal basis for banning you for refusing to give a password, and lawyers say that such a ban could be challenged in court.

Of course, going to court is an arduous, expensive and time-consuming undertaking, one made all the more difficult by the fact that you’d have to sue in the US. You can seek the intervention of a supervisor while you’re being questioned and lodge a complaint with US Customs and Border Protection when you get home, but it may not make much difference. You can also report your experience to a local affiliate of the ACLU.

What about Canadian border guards? Do I have more rights as a Canadian when I’m coming back into Canada?

The right of every citizen of Canada to enter, remain in and leave Canada is protected by section 6 of the Canadian Charter of Rights and Freedoms. But your other Charter rights are significantly curtailed at the border, including your right to be free from unreasonable search and seizure and your usual protections against arbitrary detention and compelled self-incrimination.

Section 99 of the Customs Act gives Canada Border Service Agency (CBSA) officers the power to “examine any goods that have been imported and open or cause to be opened any package or container of imported goods” – basically, to search your stuff. “Goods” are defined to include “any document in any form.” Section 11 requires entrants to Canada to “answer truthfully any questions asked by the officer in the performance of his or her duties”, and section 153 forbids making “false or deceptive” statements to customs officers or acting to “hinder or prevent” officers in performing their duties.

These laws were created at a time when people crossed the border with a suitcase and maybe a briefcase, not with digital devices containing deeply personal information including photos, text messages, emails and search histories. However, despite the Supreme Court of Canada’s clear acknowledgment in a recent digital privacy rights case that “it is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession”,[1] the CBSA interprets its power to search “goods” as including a power to search cell phones and laptops, and warrantless, suspicionless searches of digital devices are a matter of routine.[2]

Image of CBSA badge by Dave Conner (Flickr Creative Commons)

Unlike the US, which has published a detailed Privacy Impact Assessment on border searches of electronic devices, Canadian policies are much more difficult to find, making it harder for Canadians to understand and assert their rights. Interim guidelines obtained through an Access to Information Request and provided to the BCCLA offer a glimpse into CBSA’s policy. Officers can request passwords, though not for information stored “remotely or online.” If a traveller refuses, the device could be seized and held for a forensic examination. Nothing in the law or guidelines prevents CBSA from then copying the entire contents of the device.

The guidelines also state that until further instructions are issued, CBSA officers shall not arrest a traveller solely for refusing to provide a password. In response to questions from media, Scott Bardsley, press secretary for the minister of public safety, recently confirmed that the guidelines are still in place. The BCCLA has not independently confirmed that the guidelines are still operative and, in any event, they are only guidelines and should not be relied on as a definitive statement of the law.

As we detailed in a previous blog post, in 2015 (prior to the enactment of the guidelines) a Montreal man was charged with hindering or preventing an officer from performing their duties under the Customs Act after refusing to give up the password to his Blackberry when a CBSA officer demanded it. Mr. Philippon ultimately abandoned a constitutional challenge to his arrest and pled guilty to the charge. Until another case comes along, we simply do not know whether the CBSA’s powers include compelling people to provide passwords (though we certainly know that CBSA acts as if they have this power), or whether it is constitutional to arrest someone for refusing (though we know that people have been arrested in these circumstances).

So what do I do?

Image of travel bag and contents by Do8y (Flickr Creative Commons)

The safest thing you can do is to leave your device at home when you cross the border. That may not feel very realistic or practical, but if your whole life is on your device, that’s all the more reason to leave it behind. If it’s seized, you could be without it for a very long time.

If you must travel with your digital device, here are some things to consider:

  • Make a full backup. A recent backup will ensure you have access to your data if your device is detained.
  • Turn off your device when you’re crossing the border, disable fingerprint unlocking and require a strong password to log on. This will prevent a CBSA officer, or anyone else who wants access to your data, from simply turning on your device and browsing through its contents.
  • Wipe your device of any files you want to ensure remain private. If you’ve stored your backup online (see point 1), you can even download your data back onto your device once you reach your destination.
  • Encrypt important documents and files, or consider full disc encryption. Encryption essentially scrambles the contents of your electronic device. The data is unlocked by a passphrase. More and more laptops and handheld devices are coming with disc encryption software built in.
  • Separate privileged or confidential documents from other files. Privileged information is given the most protection, and in theory should not be viewed by border officers at all other than to verify that it is what you claim it to be. This certainly includes lawyers’ files, and can sometimes include doctors’ and psychologists’ records. Journalists have a limited privilege over their sources. If you have privileged information on a device that a border guard wants to search, be sure to alert them to its presence. This is much easier to do if the privileged materials aren’t mixed in with unprivileged materials.

Some people may worry that crossing the border with a wiped phone or encrypted files may look “fishy” and could expose them to heightened suspicion and scrutiny. We can certainly understand these concerns and encourage everyone to use their best judgment given their own circumstances, vulnerabilities and needs.

The more that we assert our privacy rights and take active steps to preserve and defend them, the more we help normalize these privacy-protective measures and the less “fishy-seeming” they will become.

[1] R v Fearon, 2014 SCC 77 at para 51.

[2] R v Saikaley, 2012 ONSC 6794 at para 14.

< class="what-entry-title">Updated: Our National Security Consultation series>

A Different Shade of Green Paper: What the government forgot to mention

The federal government recently announced the launch of the much-anticipated National Security Consultation.  This is an unprecedented opportunity for Canadians to weigh in on the recent radical changes to our national security landscape (eg. “C-51”) and our  long-standing deficits in national security transparency and accountability.

We know that these are issues that deeply engage Canadians.  We also know that they are complex.  In order to help “prompt discussion and debate about Canada’s national security framework” the federal government has released a “Green Paper” document as a backgrounder.  The bad news is that, in the main, it reads like it was drafted by a public relations firm tasked with selling the current state of extraordinary, unaccountable powers.   Hmmmm…. Not perhaps the most helpful resource. 

So, here’s what we’re going to do.  We are going to help create a National Security Different-Shade-of-Green Paper that you may want to consider in creating your submission to the national security consultation. Read the blogs below, and scroll to the bottom to see how you can participate in the consultation.

 Blog series

Click on each circle to go to the full blog post in “A Different Shade of Green Paper:  What the government forgot to mention”. 

information-sharing-act-button-3

The bottom line

Here’s what we need:

  • a parliamentary oversight committee that has real powers to do its job;
  • integrated expert review and monitoring;
  • the repeal of “Bill C-51”; and,
  • measured and evidence-based legislation going forward.
information-sharing-act-button-2

The bottom line

But if you do nothing else in relation to the consultation, please consider this one-step vote for human decency that will take you less than 30 seconds.

Send the text below to [email protected]

No complicity in torture.  Canada must revoke the Ministerial Directives allowing for collaboration and information sharing with foreign government agencies even if the information conveyed is derived from torture, or torture may result.  Canada must pass a law to create a clear prohibition on sharing information likely to be derived from, or at risk of leading to, torture.

a-different-shade-of-green-paper-6

The bottom line

Bill C-51 modified the Canadian ‘no-fly’ regime to be more like the US model. While it is next to impossible for you to gain access to your own listing, the Act allows your listing to be shared with foreign governments, with no statutory limits on how that information can be used.

Canada should repeal the Secure Air Travel Act and keep suspected terrorists away from airplanes using the existing tools under the criminal law.

It is not the case that there may never be justification for preventing someone from boarding a plane.  The question is, how – and on what grounds – is this to be done? We say the tools of the existing criminal law are best suited to protecting both public safety and individuals’ security.

a-different-shade-of-green-paper-9

The bottom line

The new offence of advocating or promoting the commission of terrorism offences in general should be repealed.  We can see no security interest in further criminalizing expression beyond what was already an offence prior to the new law.

The Criminal Code makes it illegal to counsel anyone to commit a terrorism offence, and considering that terrorism offences include acts that fall well short of violence, this already captures a broad range of terrorism-related expression.

The potential sweep of the new terrorist speech offence presents not only a serious chill on speech, but a genuine risk of unintentionally undermining security.

a-different-shade-of-green-paper

The bottom line

The recent expansion of CSIS powers is unprincipled, dangerous and unnecessary.

Bill C-51 gave CSIS vast powers to operate outside the confines of the regular law in near total secrecy.  These provisions must be repealed.

While a democracy can incorporate the need for an intelligence agency to operate with considerable secrecy, there is no place in a democracy for a secret police.  Full stop.

 information-sharing-act-button

The bottom line

The Information Sharing Act was ill advised when it was introduced, it is even more so now that we have some insight into the shocking state of the current security intelligence data collections of personal information.  The unprecedented surveillance that the Act enables will facilitate precisely the kind of profiling that is both dangerous to individuals and communities and ineffective at increasing public safety.

The Act should be repealed and replaced with the careful and measured approach that was called for in the first place to ensure needed information sharing for national security purposes and appropriate and meaningful protection for lawful Canadians’ personal information.

information-sharing-act-button

The bottom line

While Canadians read news reports of how previously expanded police surveillance powers (warrants for GPS monitoring and tracking) have been undermining  press freedom, the federal government is gearing up to expand police and intelligence surveillance powers even further.

To the dismay of Canadians hoping to have good faith discussions about dangerously expanded and unaccountable state powers, the government’s Green Paper for the National Security Consultation includes a sales pitch for a laundry list of further expanded state surveillance powers.

How to participate

Online: Visit the government’s online consultation site to provide your feedback online on any or all of the 10 topic areas for the consultation.

OR email your responses to Email: [email protected]

OR check out this helpful tool from the folks at Open Media that will allow you to submit your answers directly to the consultation AND cc’ all the members of the Public Safety Community. Find it at www.saveoursecurity.ca 

In-person: Public Safety Canada and the Department of Justice Canada will be organizing in-person events to consult with Canadians between September 8thand December 1st, 2016. Details regarding dates and locations will be provided as the events are confirmed.

You’ve got till Dec. 15th to make online submissions to the consultation.

 

< class="what-entry-title">What Happens If You Don’t Provide Your Cellphone Password to Border Agents? >
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Photo credit: BC Emergency Photography via Flickr

CBSA officers. Photo credit: BC Emergency Photography via Flickr

A highly anticipated case about border officials demanding passwords for electronic devices came in with a bang and went out with hardly a peep.

Alain Philippon was arrested in March 2015 for refusing to provide a password to his Blackberry that was demanded by border officials.  He was charged under s. 153.1(b) of the Customs Act which provides that:

153.1 No person shall, physically or otherwise, do or attempt to do any of the following:

(b) hinder or prevent an officer from doing anything the officer is authorized to do under this Act.

This case got national and international attention as the likely contender to answer the question, currently unclear in Canadian law, of whether the powers of the Canada Border Services Agency (CBSA) include compelling people to provide passwords.

Photo Credit: Ervins Strauhmanis via Flickr

Photo Credit: Ervins Strauhmanis via Flickr

On the one hand, we know from the Supreme Court of Canada that privacy rights are reduced in the context of border searches.  On the other hand, we know from the Supreme Court of Canada that the privacy interest in electronic devices is extremely high.  What happens when these hands meet is what everyone wants to know.  And the Philippon case isn’t going to tell us, because recently he pled guilty, and no Charter challenge was raised.

So all we know currently is that whether or not it could ultimately be found unconstitutional, you can be arrested for not providing your password to a border official who demands it.

True.  But here’s the breaking news: according to CBSA’s own documents, at least for some period of time, they weren’t supposed to be arresting people for not providing a password.

We have just been provided documents from someone who did an extensive FOI for CBSA records which included recent Operational Bulletins.  We are immensely thankful that this individual shared these documents with us.

These documents indicate that while CBSA maintains the position that they do have the legal authority to compel passwords, they acknowledge the law is not clear.  And, as of June 30, 2015, when Operational Bulletin PRG – 2015 -31 came into effect, people were not supposed to be arrested for failing to provide passwords.

Until further instructions are issued, CBSA officers shall not arrest a traveller for hindering (Section 153.1 of the Customs Act) or for obstruction (paragraph 129(1)(d) of IRPA) solely for refusing to provide a password.  Though such actions appear to be legally supported, a restrained approach will be adopted until the matter is settled in ongoing court proceedings.

It is important to note that the CBSA takes the position that the device itself can nevertheless be detained:

If a traveller refuses to provide a password to allow examination of the digital device, media or documents contained therein, or if there are technical difficulties that prevent a CBSA officer from examining the digital device or media, the device or media may be detained by the CBSA officer under the authority of Section 101 of the Customs Act, on the form K26, Notice of Detention, for examination by a CBSA expert trained in digital forensic examinations.

Further, even when passwords are requested, the requests must be limited:

Passwords are not to be sought to gain access to any type of account (including any social, professional, corporate, or user accounts), files or information that might potentially be stored remotely or on-line.  CBSA officers may only request and make note of passwords required to gain access to information or files if the information or file is known or suspected to exist within the digital device or media being examined.

Conversely, a traveller may voluntarily provide information and passwords to access external data in certain circumstances in order to show compliance; CBSA officers should advise travellers that they are not required to access or provide external information, but may voluntarily choose to do so.  The login information or password shall not be compelled or recorded in these cases.

CBSA badge. Photo credit: antefixus21 via Flickr

CBSA badge. Photo credit: antefixus21 via Flickr

It’s important to note that the quoted Operational Bulletin’s instruction not to arrest for “hindering” or “obstruction” was designed to be time-limited (“until further instruction”) and may already have changed given that the “ongoing court proceedings” probably meant the Philippon case and those proceedings aren’t proceeding.  We know that there are other cases working their way through the courts, but at any time CBSA could return to making arrests for password refusal.

Meanwhile here are two things to know:

  • We’re helping to share these FOI docs from the CBSA because they are full of information that will help you understand how the CBSA says it is supposed to be conducting its business from searches to detention and access to counsel. In our view, these kinds of policy documents are exactly the kind of material that should be pro-actively disclosed by the agency, helping people to understand their rights and to seek effective redress if those rights aren’t upheld.
  • The compelled password issue is not only not going away, it’s getting bigger by the moment. The Canadian Association of Chiefs of Police just decided to lobby for legislation that would give the police the ability to get a warrant to “compel the holder of an encryption key or password to reveal it to law enforcement.” There’s a really good analysis of that proposal here.  And if you have things to say on this topic – compelled passwords for CBSA or police – now is the time to say it! Public Safety’s cyber-policy consultation is happening right now and the window for comment is short.
< class="what-entry-title">Where Did the Stingray Inquiry Go? >
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stingray

On Monday, July 25, 2016 BCCLA Policy Director Micheal Vonn will be speaking at the International Society for the Reform of Criminal Law conference in Halifax, N.S. Her talk “Neither Confirm Nor Deny: British Columbia Grapples with Whether Police Need to Come Clean on the use of IMSI Catchers/Stingrays”, delves into B.C.’s experience trying to get to the truth about the use of these controversial surveillance devices.

The Inquiry into the Vancouver Police Department’s (VPD) records on surveillance devices known as “Stingrays” has been scuttled.

“Stingrays”, also known as “IMSI Catchers” are devices that mimic cell phone towers to intercept information about and from cell phones in a given area. These cell-site simulators trick nearby mobile devices into connecting, revealing the phone’s location and data transmissions, including texts, emails and even voice conversations.

In 2015 Pivot Legal Society, filed Freedom of Information (FOI) requests to find out whether Vancouver police have bought one for use. The answer they got, left them with more questions.

The VPD, said that it would neither confirm nor deny the existence of any such records using an exemption to access to information which shields disclosures that “harm the effectiveness of investigative techniques and procedures used or likely to be used in law enforcement.”

In response, the BC Office of the Information and Privacy Commissioner (OIPC) launched an Inquiry into the VPD’s refusal to respond to the freedom of information request.

VICTORY? NOT QUITE THAT SIMPLE

The Inquiry was to determine whether the VPD could refuse to respond to the request for information.  And we are not going to know the answer to that question, because the Inquiry has folded. 

It folded because mid-Inquiry the VPD “volunteered” the information, making the Inquiry moot.  And this should be a victory of course, because we got the information we’d been seeking.  Only it’s not quite that simple…

The first problem is that, with the folding of the Inquiry, we’ve lost the opportunity to get clarification on how the “neither confirm nor deny” provision in the Freedom of Information and Protection of Privacy Act is supposed to work. In our submission to the Inquirywe said that the VPD did not meet the test for this exemption and should never have used it in the first place.  Access to information is a critical tool for governmental accountability and it could be years before we see a clarification of this provision, which now has to await another case.

Stingrays“WE GOT NOTHING”

Meanwhile, what did we learn from the “volunteered” disclosures?  Well, here they are in their entirety:

As you noted in your Submission, since the filing of your complaint and review, information about the device commonly referred to as an IMEI Device or IMSI Catcher has been accessed through court records in Canada and reported on by media organizations.  In consideration of all the relevant circumstances, the Vancouver Police advises that it does not have this device and does not hold records responsive to your access request of July 23, 2015.

Presumably the first draft of this letter was something along these lines:

Ha-ha-ha.  All that work on your part and we never had nothing in the first place!  Wa-ha-ha.

But there are very important questions that flow from this response.

On the substantive side, the question is not whether the VPD “has” such a device, but whether it has access to one.   That is a distinction that is incredibly important in light of the news reports from Motherboard and Vice News that the RCMP has allowed other police departments to use the RCMP’s Stingrays or has given other police departments access to the data captured from their Stingrays.  We are signed on to this letter requesting that the VPD clarify whether it has access to the RCMP’s devices or access to data collected from the RCMP’s devices.

On the procedural side, the question is how it is possible that one of the biggest municipal police forces in the country has “no records responsive” to a request for records about one of the most talked about police surveillance devices in this and many other countries?  No memos, no briefing notes, no emails, no agenda items for discussion, no deliberations recorded in meeting minutes?  Nothing!  How is that possible  — unless you’re practicing the “oral governance” technique of deliberately not putting things in writing to avoid having them accessed through freedom of information?

Surely “we got nothing” is a little hard to understand in this context.

SO, WHERE ARE WE NOW?

So, where are we now? We are awaiting a response from the VPD on the questions about the RCMP’s devices.  And while the BC Inquiry was set to be precedent setting, ours is not the only jurisdiction attempting to get police to provide information about Stingrays.  Between advocates and intrepid media reporters we are going to get the real story on how these mass surveillance devices are being used in domestic policing.  And then our work will be to shape how (and if) these devices can be used in compliance with individuals’ Charter rights.  These, after all, are mass surveillance devices, not targeted individual surveillance devices and how (and if) they can be used in a Charter-compliant fashion has yet to be decided.

And none of this is as it should be.  Public interest organizations, the media and courts should not be playing hide n’ seek with the police to get information about whether they are breaching our Charter rights.  New technologies that necessitate controls in order to be used lawfully by the police should not be allowed to be hidden and insulated from constitutional scrutiny.  The media stories on the RCMP’s devices say they have been used for a decade.  It is likely that, as with the recent case about cell phone tower dumps that we reference in our submission on Stingrays (at page 14) ,we are going to find out that people’s rights were violated for years on mass.

ACCOUNTABILITY ON THE FRONT END

We’ve got a huge accountability deficit with “innovative” devices and techniques used in Canadian policing.  And while we need to have effective investigative tools in the hands of the police, too often the claimed need for secrecy has prevented appropriate accountability.  One of our aims is to bring the accountability piece to the front end of this process, instead of filing access requests to uncover rights violations that may have been occurring for years.

< class="what-entry-title">Welcome Maggie Knight, BCCLA’s Operations Manager>
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Please extend a huge welcome to Maggie Knight, BCCLA’s first Operations Manager. Maggie has just joined the team last week.

Previously, Maggie ran communications and operations at RADIUS, a social innovation lab and venture incubator housed at SFU’s Beedie School of Business.

She served as President of McGill’s undergraduate student union during the Quebec student strike (2011-2012) and led the organizational development of start-up political advocacy non-profit Leadnow.ca as their first Managing Director.

Maggie holds a BASc in Environment (Honours) and Economics from McGill University, and has advocated for justice and human rights with organizations such as Journalists for Human Rights, Canadian Friends Service Committee, the Canadian Youth Climate Coalition, and Amnesty International. She enjoys working with social and environmental justice organizations to build teams, culture, and organizational infrastructure that empower everyone to do their best work.

Maggie is passionate about transforming structural injustices and building people powered movements that can hold governments accountable. Raised on Coast Salish Territories in Victoria, she lived in Montreal and Halifax before coming to call Vancouver home.

Maggie is joining the team after our dearest former Office Manager Jim Braunagel retired, after more than 15 years with us at BCCLA. We wish Jim a happy retirement!

< class="what-entry-title">In praise of police judo>

Police Judo

JUDO, THE GENTLE WAY

During law school, I contemplated going on to do a Master’s Degree in Criminology at Oxford.  I even pitched the head of the department with a thesis proposal:  Police Judo.  My thesis would be about how judo is effective in reducing violence in police encounters.  The Criminology degree was a road not taken, but I remained convinced that ‘ju-do’ (‘the gentle way’) should play an important role in police use-of-force.

Turns out, some members of the Vancouver Police Department had exactly the same idea 20-some years ago.  The evolution of their work and thinking has created a judo-based program that incorporates elements of other martial arts, and is designed specifically as a practical toolkit for police use-of-force encounters.

And how is this a civil liberties issue?  Simply put, police accountability for their use of force is central to the mission of civil liberties.  Of course we want oversight and review of reports of excessive use of force by police.  But even more critically, we want police to use appropriate force in the first place.  The BCCLA is deeply interested in how police are trained in use-of-force and prepared to advocate for any program that we think ‘gets it right’.  I’ve had a look at one of the three Police Judo clubs in the Lower Mainland.  And I think they really get it right.

POLICE JUDO OBSERVED

I went to observe an introductory class held at SFU.  Some of the differences between traditional judo and Police Judo were immediately evident, starting from no bowing and no Japanese words.  But one of the key differences is that Police Judo is non-competitive.  Anyone who registers can attend (you don’t have to be a member of the police) and it’s a great workout and way to learn self-defence.  But Police Judo is not a sport you can compete in.  You can achieve higher ranks based on your knowledge and skill, but there are no tournaments.  The focus is on learning the techniques and taking care of the person you are working with, not beating them.

Police Judo session at SFU

Police Judo introductory class held at SFU. BCCLA Policy Director Micheal Vonn in front row in black.

After a big group warm-up and series of exercises, the class I attended broke into two groups.  One group did more traditional judo, learning how to do breakfalls and throws.  The other group did more policing-specific exercises and concentrated on control skills, like joint manipulation techniques, to safely take someone to the ground during an altercation.  After, the groups came together for a final session, which involved a policing scenario, so the participants could try using the techniques in a closer-to-real-life context.

While ending a fight/attack is undoubtedly something that police are called upon to do, the essence of effective and ethical use of force is to avoid the fight in the first place.  The Police Judo website notes that the process of trying to bring a person into custody is generally the time of highest risk for violence in police encounters.  So the instructors were constantly pointing out how, for example, holding a person’s arm one way gives them enough room to swing around with a kick, but changing the hold can prevent that happening.  Everyone’s safer when the fight is avoided.

PRACTICE, PRACTICE, PRACTICE

Policy Director, Micheal Vonn, with her judo club, back in the feathered bangs era.

Policy Director, Micheal Vonn, with her judo club, back in the feathered bangs era.

But don’t police learn these critically important techniques in basic policing training?  Well, some, but not all, and maybe not effectively.  It’s one thing to be shown some techniques and another to have them so engrained that you can and will actually use them.  Police Judo recognizes that this learning needs to be on-going.  Regular practice is what’s required to have the techniques effectively available in real-life, chaotic, high-stress encounters.  Reacting appropriately in an instant is almost impossible if you have to think through the steps, as opposed to responding in a way that is practically automatic because the movement pattern is so well established.  Practice doesn’t make perfect, necessarily.  But practice makes possible what otherwise gets overridden by stress and fear responses.  The establishment of Police Judo clubs allows for this practice to be developed early, by recruits and applicants, and refined over years of police service.

A DIFFERENT TOOLKIT IS NEEDED

One retired police officer was telling me that there is now so much gear/weapons that go on the standard officer tool belt that his daughter, who is now in the police force, hasn’t got a big enough waist to hold up the belt.  As the National Use of Force Framework makes clear, there are times when use of a weapon is the appropriate police response.  Police Judo is not about those times.  It is about the infinitely more common, daily police encounters, often involving extremely vulnerable individuals, for which weapons are entirely the wrong answer and a vastly different toolkit is needed.

We congratulate the Law Enforcement Judo Association in making this innovative and important training available and we hope to see the Police Judo approach expand and become an acknowledged best practice in Canadian policing.

 

< class="what-entry-title">Yet another reason to oppose mandatory minimum sentences>

Fetal Alcohol Spectrum Disorder (FASD) in the Criminal Justice System

Hands in Handcuffs

As one of its 94 calls to action,[1] the Truth and Reconciliation Commission on Indian Residential Schools called on “the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with FASD (Fetal Alcohol Spectrum Disorder),” including ensuring proper diagnosis of FASD so that its effects can be considered in sentencing.[2]  This condition – caused by permanent brain damage resulting from alcohol exposure in the womb – often causes behaviour that makes it disproportionately likely that a person living with FASD will come into contact with the law.[3] While some of these effects are easy to spot, others are much less readily diagnosable, and can include issues with learning, attention, problem solving or behaviour, including:

  • Impaired mental functioning
  • Poor executive functioning
  • Memory problems
  • Impaired judgement
  • Inability to control impulse behaviour
  • Impaired ability to understand the consequences of one’s actions
  • Impaired ability to intentionally modify behaviour control[4]

As a recent BC government report observes, “Persons affected by FASD may not understand social situations, and their behaviours may be misinterpreted as willfully problematic, rather than a symptom of an underlying brain-based condition.”[5] In their 2011 paper “Fetal Alcohol Spectrum Disorder as an Access to Justice Issue”,[6] the Canadian Bar Association acknowledged that individuals with FASD are often unnecessarily criminalized. A 2013 meta-analysis of existing research-based evidence of FASD in a variety of settings found that estimated prevalence rates in correctional facilities ranged from 9.8% to 23.3%.[7]

INDIVIDUALIZED ASSESSMENT

More Than We Can Afford: The Costs of Mandatory Minimum Sentencing

REPORT: More Than We Can Afford: The Costs of Mandatory Minimum Sentencing by Raji Mangat

Section 718.1 of the Criminal Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2 adds that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” The BCCLA has always been a staunch supporter of these principles throughout our work, particularly in our ongoing opposition to mandatory minimum sentencing. We also support the Gladue principles, which direct sentencing judges to consider the unique systemic or background factors relevant when sentencing an Aboriginal person (see, for example, our submissions in the Ladue case). We believe that it is crucial for sentencing judges to engage in an individualized assessment of all relevant factors and circumstances of the person standing before them when deciding what a just sentence will look like in any given case. But FASD is routinely under-diagnosed, and thus under-considered by judges in sentencing decisions. And in the rare cases when a judge is aware that an individual lives with FASD, mandatory minimums may get in the way of effectively taking it into account.

The Canadian Bar Association paper cited above draws attention to the fact that currently, courts do not have legislative authority to order assessments for adults they believe may have a cognitive deficit unless they are considered “unfit to stand trial” or “not criminally responsible by reason of a mental disorder.” The part of the Criminal Code dealing with individuals who have ‘mental disorders,’  the CBA notes, is generally not applicable to, or appropriate for, individuals with FASD: while mental illnesses are conditions that may change with treatment or over time, FASD involves permanent brain damage, which the CBA suggests requires a different type of consideration. The CBA calls for “the creation of legislative authority to allow courts to obtain an accurate assessment of an individual’s neurocognitive abilities.” In our view, court-ordered medical assessments in general should be used sparingly, as they impose significantly on the right to free and informed consent to medical care. However, we agree with the principle that it is necessary to find more effective ways for an accused person’s FASD status to be considered by the courts. This means there must be both widespread awareness of the importance of FASD diagnosis and resources available for the necessary neurocognitive assessments.

ALTERNATE MEASURES AND DIVERSION PROGRAMS

While acknowledging that the “realities of the disability of FASD must be balanced with the need for public safety”, they also call for the development of alternate measures and diversion programs that address the issues that bring individuals with FASD into contact with the law, and that “hold individuals accountable consistent with their degree of responsibility.” They also call for increased education for criminal justice professionals working in all parts of the system – police, probation officers, judges, prosecution and defense counsel – about FASD and its implications for service provision. They recommend prosecution policy directives be changed to require the consideration of FASD. And they also emphasize the need for early diagnosis, so that a person’s experience of living with FASD is taken into account throughout their involvement with the justice system, including limiting unnecessary bail or probation conditions to accommodate limited cognitive abilities.[8]

In March of 2014, Conservative MP Ryan Leef introduced a private member’s bill in the House of Commons to amend the Criminal Code, adding a definition of FASD and establishing a procedure for assessing people within the criminal justice system for the condition. It would have required the court to consider FASD as a mitigating factor in sentencing. The bill was defeated in November 2014.[9]

MANDATORY MINIMUM SENTENCING MUST BE ELIMINATED

The CBA suggests an “exemption valve” for individuals living with FASD be added to the Criminal Code for sentences requiring a mandatory minimum sentence. Similarly, the TRC recommendations call for the enactment of statutory exemptions from mandatory minimum sentences for those affected by FASD, along with more resources for diagnosis, support and education.[10] We believe that rather than carving out exceptions for those with FASD, mandatory minimum sentencing must be eliminated altogether. We believe that judges must be in a position to craft sentences that are proportionate given the circumstances of a particular offence and offender, whatever those circumstances may be, without the limitations imposed by mandatory minimum sentencing. Along with additional resources for diagnosis and education, this would go a long way toward ensuring that those with FASD have access to justice.

 

[1] http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf

[2] The BCCLA’s submission to the Commission can be accessed here: https://bccla.org/2013/09/the-journey-of-reconciliation-issuing-our-statement-of-reconciliation-at-canadas-trc/

[3] http://www.cba.org/Our-Work/Resolutions-1/Resolutions/2010/Fetal-Alcohol-Spectrum-Disorder-in-the-Criminal-Ju

[4] https://openparliament.ca/bills/41-2/C-583/

[5] https://www.mcf.gov.bc.ca/fasd/pdf/FASD_TenYearPlan_WEB.pdf

[6] http://www.cba.org/Sections/Criminal-Justice/Submissions-and-Legislative-Updates?page=7

[7] http://fasd.alberta.ca/documents/Systematic_Prevalence_Report_FASD.pdf

[8] http://www.cba.org/Sections/Criminal-Justice/Submissions-and-Legislative-Updates?page=7

[9] https://openparliament.ca/bills/41-2/C-583/

[10] http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf

< class="what-entry-title">The BCCLA is hiring an Operations Manager!>

 

The BC Civil Liberties Association seeks an Operations Manager to support us in achieving our human rights and civil liberties mandate through the design, implementation and management of office systems that will ensure efficiency and productivity.

The BC Civil Liberties Association is one of Canada’s leading social and democratic justice NGOs. With a mandate that includes work on police accountability, government transparency, voting rights, prisoners’ rights, national security issues and women’s rights, we are one of the most vibrant and visible advocacy groups in the country. The BCCLA is a small team with a big reach, and we want you to be a part of our work.

About this position

Working with the Executive Director and other staff, the Operations Manager’s primary responsibility is ensuring organizational effectiveness and promoting excellence by providing leadership in relation to our operations and infrastructure, financial management and budgeting in a not-for-profit context. You will be responsible for managing daily finances, overseeing facilities management, leading IT and other projects including the project to re-locate the BCCLA in a shared-space working environment with other non-profits, and overseeing the administrative functions of the BCCLA.

Primary job responsibilities include:

Financial coordination

  • Manage all aspects of BCCLA’s day-to-day finances including accounts receivable and payable, bank accounts.
  • Overseeing bookkeeping and assisting in the development and management of organizational budget.
  • Identifying and implementing operational and cost efficiencies to ensure a sustainable future for BCCLA’s goals, plans and priorities

Operations management

  • Driving and enabling internal capacity to ensure that our operations are adequately resourced and properly equipped with the required tools, information technology, training and infrastructure to achieve our goals
  • Identifying opportunities to improve the use of our resources to meet our objectives
  • Oversee operations of facility and equipment maintenance, ensuring a safe and continuously functional environment
  • Coordinate human resources administration including employee insurance and benefits plans

Project management

  • Managing office move, co-location and shared services project with other non-profits. This includes dealing with realtors, financial institutions, architects and designers, non-profit partners, and other community partners

Why we want you

You have a knack for identifying problems, and building and executing a plan to solve them. You are an expert at keeping things running efficiently. You are a leader with demonstrated good judgment and strong ethics.  You have a strong alignment with the BCCLA’s values and are committed to BCCLA’s human rights and civil liberties mission. You will develop a deep understanding of our mandate and core activities. You possess the following attributes:

General

  • Strong work ethic with a great attitude
  • High attention to detail
  • Must be extremely well organized, able to prioritize tasks and meet deadlines, and work
  • independently and as part of a team
  • High level of professionalism and confidentiality
  • Well-developed relationship-building and inter-personal skills
  • Diplomacy, integrity and commitment
  • Post-secondary diploma or degree or equivalent combination of education and experience
  • Well-developed relationship building and inter-personal skills.
  • Diplomacy, integrity and commitment
  • Excellent written and oral communication
  • Knowledge of administrative and office procedures
  • Ability to work well with others, in a collegial and diverse environment
  • Ability to work under pressure to meet deadlines
  • Comfortable working in an often unpredictable but always exciting work environment

Technological

  • High level of familiarity and effectiveness with database use (Access), data management and computer applications
  • Strong computer skills (Office suite, Internet & web publishing), ability to master new programs quickly
  • Ability to evaluate technology resources and plan to meet organizational technology needs

Leadership

  • Excellent problem-solving and divergent thinking skills
  • Exceptional interpersonal and communications skills (written/oral)
  • Experience in project management – ability to use communication, planning, technology and administrative skills to run major projects
  • Solid ability to provide leadership in relation to the functions of the job
  • Knowledge in developing, implementing and evaluating organizational design plans an asset

Administrative / Financial

  • Knowledge and skills of core HR functions an asset
  • Financial management skills including ability to understand financial reports, budgets, forecasts and financial plans
  • Experience developing and managing complex budgets an asset
  • Ability to manage facilities and operations in an organization
  • Ability to understand regulatory requirements for a non-profit society and charity

Compensation

Salary range is between $50,000-$55,000 depending on experience. Benefits include health, dental, and life insurance plans, as well as four weeks’ annual vacation and generous sick leave policy. Our progressive workplace environment includes the possibility for flexible work arrangements.

Application and Selection Process

The BCCLA offers a welcoming and respectful work environment. The BCCLA is an equal opportunity employer that is committed to building an inclusive and diverse workplace, and encourages applications from all qualified applicants. We encourage applicants from traditionally underrepresented or marginalized groups including Indigenous people, people of colour and queer people to self-identify in their covering letter or in the body of their email when they send us their application.

To apply, please submit your cover letter (including a summary of your qualifications, why you would like to work with the BCCLA, and what your contributions to our team would be), resume, and contact information for three references by clicking here.

We will accept applications and interview candidates on a rolling basis until the position is filled.

Please include your earliest start date in your cover letter. Our preference is as soon as possible in February or March 2016. We thank all applicants for their interest, but we will respond only to candidates who are being considered for an interview.

Interviews will be conducted by BCCLA staff at our office in Vancouver. The BCCLA will make appropriate accommodations if needed for candidates that we interview.

 

 

< class="what-entry-title">A tough week for voting rights>
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Recently, the Ontario courts issued two important decisions affecting Canadians’ constitutionally protected right to vote. The decisions are troubling. Between them, the rulings will effectively disenfranchise over a million Canadian citizens in the upcoming federal election, and will disproportionately impact some of the most vulnerable members of Canadian society, including people who are homeless, the elderly and Indigenous peoples. Even worse, they do so in the absence of any compelling justification.

Council of Canadians et al v Canada (Attorney General)

First, on July 17, the Ontario Superior Court of Justice denied an application brought by the Council of Canadians and the Canadian Federation of Students for an injunction to suspend the operation of controversial amendments to the Canada Elections Act brought about by the Fair Elections Act, which became law in 2014.

Photo credit: Marc Lostracci

Photo credit: Marc Lostracci

The applicants are challenging a number of elements of the Fair Elections Act, including provisions that restrict the use of “vouching” and prevent voters from using their Voter Identification Card as a piece of identification on voting day. The groups filed a constitutional challenge to these provisions last year, arguing that they violate section 3 of the Canadian Charter of Rights and Freedoms, which protects the right of every citizen to vote, and section 15, which protects equality rights. They say that these changes will disproportionately impact students, elderly people, people with disabilities, homeless people and Indigenous people, who are all less likely to possess the identification required by the Act.

The BCCLA has been an outspoken advocate on issues of democratic rights, and has been a vocal opponent of voter identification laws. We believe that voter ID laws seek to address a single, largely speculative problem – wrongful impersonation of voters – at far too great a cost – disenfranchisement of Canada’s most vulnerable and marginalized citizens. When these amendments were first proposed in 2014, BCCLA staff lawyer Raji Mangat made submissions to Parliament on these points. The BCCLA is now an intervener in the case.

Unfortunately, the full case could not be heard in time for the federal election this October, so the applicants sought an injunction to prevent the application of some of the Act’s most problematic provisions during the election. On July 17, their application was denied. Despite acknowledging the risk that some people would be unable to vote because of the strict new requirements and the potential for “irreparable harm” as a result, the judge declined to issue the injunction, saying that it would be “problematic to change the rules for elections at the last minute through the blunt instrument of judicial intervention.”

Of course, the very rules at issue only became law in October of last year, making a full constitutional challenge of their merits before the election all but impossible. Rejecting the application for an injunction in these circumstances creates a perverse incentive: government could introduce laws violating rights just months before an election, safe in the knowledge that – at least for the purposes of that election – those laws will stand because a court will not have time to fully review them.

Photo credit: Pascal Walschots

Photo credit: Pascal Walschots

The implication of the decision is that tens of thousands of Canadians may find themselves unable to vote on Election Day. These citizens will be unable to exercise one of the most important rights they have in a constitutional democracy, at exactly the moment when it counts the most. We know this is going to be a hotly contested election, and many ridings could turn on the slimmest of margins. Where the disenfranchised voters could have changed the result of the election, this would constitute irreparable harm not only to them, but also to the public at large. In our view, this is a much more problematic result than the one the judge was worried about.

Frank v Canada (Attorney General)

Then, just a few days later, the Ontario Court of Appeal issued its decision in Frank v Canada (Attorney General), in which the BCCLA also intervened. The Court of Appeal overturned a lower court decision and decided, by a margin of 2 to 1, that it is constitutional to deny the right to vote to Canadians who have lived outside Canada for more than five years. While the majority acknowledged that Canadians’ Charter-protected voting rights are breached by this rule, they found the breach permissible under s. 1 of the Charter as a reasonable limit on the right to vote.

What’s especially concerning about these cases is that in neither one did the government provide a compelling justification for the infringement of fundamental democratic rights. In the Fair Elections Act case, speculation about voter fraud was not borne out on the evidence, which showed that such occurrences are virtually non-existent in Canada. In Frank, the majority concluded that the breach of voting rights could be justified by the “pressing and substantial objective of preserving the social contract at the heart of Canada’s system of constitutional democracy.”

The “social contract” discussed by the majority refers to the idea that laws derive their legitimacy from the fact that they are made by elected representatives of the people who will ultimately be governed by those laws. However, this is just the kind of vague and symbolic justification the Supreme Court of Canada warned about in another important voting rights case, Sauvé v Canada (Chief Electoral Officer). In that case, the government defended its denial of voting rights to prisoners on the basis that they were promoting respect for the law and appropriate punishment. In rejecting their argument, the Court said:

Vague and symbolic objectives such as these almost guarantee a positive answer to this question [of whether the rights violation can be justified]. Who can argue that respect for the law is not pressing? Who can argue that proper sentences are not important? Who can argue that either of these goals, taken at face value, contradicts democratic principles? However, precisely because they leave so little room for argument, vague and symbolic objectives make the justification analysis more difficult. Their terms carry many meanings, yet tell us little about why the limitation on the right is necessary, and what it is expected to achieve in concrete terms. The broader and more abstract the objective, the more susceptible it is to different meanings in different contexts, and hence to distortion and manipulation.

Photo credit: Jamie McCaffrey

Photo credit: Jamie McCaffrey

In upholding prisoners’ right to vote, the Supreme Court of Canada in Sauvé emphasized that the right to vote is “fundamental to our democracy and the rule of law”, “the cornerstone of democracy” and represents “the foundations of the participatory democracy guaranteed by the Charter”. However, these decisions out of Ontario seem to suggest that voting is a privilege, not a right, and one that can be denied on the basis of vague and speculative government concerns. We should all be alarmed if such a vital right can be stripped away without any compelling justification.

Counsel for the parties will be seeking leave to appeal in both of these troubling cases. The BCCLA intends to continue its role as an intervener in the appeals, making arguments about the fundamental importance of voting rights to our democratic process and the high burden that must be met to limit them.

< class="what-entry-title">Coming Together in Memory and Hope>

This is a defining moment in the epic legal battle the BC Civil Liberties Association has been waging for over four years to decriminalize physician assisted dying.

Tomorrow, on October 15, 2014, the BCCLA will argue its landmark death with dignity case before the Supreme Court of Canada. We are excited, apprehensive, hopeful and relieved to finally have the opportunity to argue our case before the highest court in the land.

BCCLA_Carter & Taylor families_03

The Carter and Taylor families gather on Parliament Hill before today’s press conference

Family members have travelled across the country to attend the hearing. Anne Fomenoff, the 86 year-old mother of Gloria Taylor, Patty Ferguson, Gloria’s youngest sister, and plaintiffs Lee Carter and Hollis Johnson, arrived in Ottawa yesterday.

They want to remind Canadians that seriously and incurably ill Canadians will continue to suffer against their wishes at the end of life until the laws are changed. They are also honouring the memories of Kay Carter and Gloria Taylor.

Kay Carter was a vibrant, intelligent, independent woman, who at the end of life, suffered from spinal stenosis, a degenerative condition that confined her to a wheelchair, unable to feed herself or go to the bathroom without assistance and suffering from chronic pain. She lived with resolve and refused to suffer needlessly. She travelled to Switzerland with Lee and Hollis in order to peacefully end her life.

Gloria Taylor was a postal worker, residential care worker, motorcycle enthusiast, mother and grandmother. At age 61 she was diagnosed with Lou Gehrig’s disease, also known as ALS. Even as her own body failed her, Gloria, who was also a plaintiff in the case, fought tirelessly to change the laws so that all Canadians would have choice and compassion at the end of life.

What is at Stake is Real People’s Suffering

When Gloria passed away in 2012, Elayne Shapray took a brave step into the public spotlight. Even as Elayne struggled with her MS (multiple sclerosis), Elayne was determined to let Canadians know that she, and other Canadians like her, should not be forced to endure painful and cruel deaths. Elayne participated in this case at trial by providing powerful evidence of the unacceptable position that she has been placed into by the law.Elayne, and the Carter family, speak powerfully about the struggle for dignity and choice in this short video about our journey to Ottawa.

Our great thanks go out to filmmaker Kevin Eastwood and his team who worked on this piece, and will be putting together a longer film in the coming months.

We Know That We Are Now Their Voice

Tomorrow, our thoughts will turn to the people who are no longer with us, people who contributed their time and heart to this case, for whom a challenge to laws did not come soon enough. Many of these brave individuals suffered cruelly at the end of life and were not afforded the painless and peaceful deaths they dearly wanted.

We take this case, and this hearing, very seriously, because we know that we are now their voice.

The government has no place at the bedsides of sick and dying Canadians

Like Kay, Gloria and Elayne, we think the federal government has no place at the bedsides of sick and dying Canadians. We think profound decisions about how much suffering to endure at the end of life, how to be remembered, and how to say goodbye should be made by the individuals whose lives are at stake.

As the Supreme Court of Canada listens to arguments and carefully weighs the constitutional rights at issue, the world will be watching with hope. Will Canada adopt a new approach to dying that promotes compassion and choice?

Now is the time for Canada to decriminalize physician-assisted dying and give seriously ill patients the compassion and dignity they deserve.

Read more about the BCCLA’s work on Carter v. Canada case and the death with dignity case.

 

Questions about physician-assisted dying? Our FAQs may have the answers. 

 

< class="what-entry-title">Carter v. Canada: The Death with Dignity Case>
Posted on

gloria-taylor-banner

Synopsis

The BCCLA filed a lawsuit in April 2011 to seek to allow seriously and incurably ill, mentally competent adults the right to receive medical assistance to hasten death under certain specific safeguards.

The lawsuit claims that Criminal Code provisions against physician assisted-dying are unconstitutional because they deny individuals the right to have control over choices that are fundamental to their physical, emotional and psychological dignity and restrict the liberty of physicians to deliver end of life care to incurably ill patients.

Progress in the Courts

  • June 15, 2012: The BC Supreme Court released its judgment in the case. The BC Supreme Court ruled that the Criminal Code of Canada provisions against assisted dying violate the rights of the gravely ill and gave Parliament one year to rewrite the laws. The Court also granted plaintiff Gloria Taylor a constitutional exemption to seek a physician-assisted death.
  • July 13th,2012: The federal government announced that it would appeal the BC Supreme Court ruling.
  • March 18 – 22, 2013: The BC Court of Appeal heard the appeal of the case.
  • October 10, 2013: The BC Court of Appeal released its decision, with a divided two-to-one decision overturning the historic BC Supreme Court ruling. The Court upheld the Criminal Code of Canada’s ban on assisted dying, citing the Supreme Court of Canada’s Rodriguez decision as a binding.
  • October 25, 2013: The BCCLA filed for leave to appeal to the Supreme Court of Canada. The BCCLA has also asked the Court to fast-track its decision to hear the case and to speed up the timeline for hearing the appeal if the Court grants leave.
  • November 1, 2013: The Supreme Court of Canada dismissed the motion to fast-track its decision to hear the case. The Court deferred the question of whether to speed up the timeline for hearing the appeal, if leave is granted, to the panel deciding the the application for leave to appeal.
  • January 2014 The Supreme Court of Canada announces it will hear the BCCLA’s appeal.

Our Plaintiffs

Elayne + graceElayne Shapray, one of nine people to join the BCCLA’s case in 2011, is the latest brave Canadian to step forward as the face of Canada’s fight for choice and dignity at the end of life. Elayne, a woman who suffers from multiple sclerosis (MS) who has been seeking the right to die with dignity since this case began, filed an affidavit in support of the BCCLA’s application to the Supreme Court.

Elayne said, “I am overjoyed that the Supreme Court of Canada has decided to hear this case. My hope is that the Court will allow people in my situation who endure intolerable suffering from a variety of conditions to choose a peaceful, dignified death surrounded by loved ones and many friends. As the law now stands, I will be obliged to end my life without the assistance of a physician, and will have to act alone, while I still can.”

On June 29, 2011, Gloria Taylor filed an application with the BC Supreme Court asking to be added as a plaintiff in the BCCLA’s death with dignity lawsuit. Gloria, 63, of Westbank, BC, was terminally ill with ALS, a fatal neurodegenerative disease with no known cure or effective treatment.

Gloria began to experience the early symptoms of ALS in 2003. A neurologist diagnosed her with the disease in 2009. Eighty percent of people with ALS die within two to five years of diagnosis.  On October 4th, 2012 Gloria Taylor passed away.

Gloria-Taylor-letterI’m asking the court to change the laws in Canada so that all Canadians, including myself, have the right to die with dignity…I should be able to make the choice about how much suffering to endure, based on my own beliefs and values…It doesn’t make any sense that it’s legal for me to commit suicide, but it’s illegal for someone to help me to die at peace, without pain, in the comfort of my home, with family and friends surrounding me.”

Lee Carter and her husband Hollis Johnson are two of the individuals who are joined by the BCCLA in the lawsuit. Lee and Hollis accompanied Lee’s 89-year-old mother, Kathleen (“Kay”) Carter to Switzerland in January 2010 to end her life. Kay suffered from spinal stenosis, a degenerative condition, which confined her to a wheelchair, unable to feed herself, and suffering from chronic pain. Her doctor told her that the condition would quickly leave her reduced to lying flat in bed, completely unable to move. Kay feared she would become trapped in own body and stripped of her independence.

 Hollis“I believe that the choice to die with dignity should be available to all Canadians,” says Lee Carter. “My mother, Kay, was a lifelong supporter of the dying with dignity movement. She lived her life with passion, independence and resolve, and her independence extended to insisting that she would have choice and control over how she would leave this world. My mother was a great lady, and I feel like I am honouring her memory by participating in this legal challenge.”

The BCCLA believes that every Canadian should have the choice to have what they consider to be a good death, including the option of a medically-assisted death for seriously and incurably ill, mentally competent adults. Without a change in the law, seriously ill individuals will continue to suffer against their wishes at the end of life, without the choice and dignity that they deserve.

Further Resources

related content

 

 

 

< class="what-entry-title">Privacy Concerns Persist over Filming for Reality Television at Border Crossing>
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You might have heard of reality show Border Security: Canada’s Front Line after it received criticism earlier this year for documenting the Canada Border Services Agency (CBSA) on a raid of a Vancouver construction site searching for undocumented workers. In one case, a consent form for the show was obtained only after a migrant worker was detained and was signed under great duress and confusion. A day after the raid, the BCCLA wrote a letter to the president of CBSA outlining the serious privacy and security concerns surrounding the filming of deportation as entertainment. The BCCLA also lodged a formal complaint with the Privacy Commissioner on behalf of Oscar Mata Duran, a migrant worker filmed during the raid, who was deported on March 19th, 2013. Force Four Productions has since agreed not to air any of the footage obtained during the raid, while the CBSA has limited the filming of inland enforcement activities to situations involving individuals wanted for “serious criminality” or those on CBSA’s “most wanted” list.

2013 - CBSA Filming Sign

Signage at a Canadian Border Crossing

Although these policy changes are small steps in the right direction, they do not go far enough. It is still unacceptable for law enforcement to film people suspected of criminality for entertainment purposes. In addition, the CBSA’s involvement in producing this show continues to infringe on the rights of citizens and non-citizens alike by filming travelers at the border crossing without obtaining their fully informed consent. Signs posted at the BC-US border claim that a traveler’s presence at the border crossing, without any objection otherwise, constitutes consent to being featured on the show. This opt-out policy is a clear affront to individuals’ right to privacy and the BC Civil Liberties Association is concerned with the government’s continuous direct support for and involvement with a television production that infringes on individuals’ rights.

The signs found at the border-crossing originally informed travelers that:

Your entrance into this area will serve as your voluntary agreement to include your appearance, image and likeness on screen as part of the ‘Border Security’ television series (including in advertisements for the series) worldwide, in perpetuity, in any and all media now known or hereafter devised.

The signs have since been changed in response to privacy concerns. They now say that individuals will not be identifiable in the series without first giving permission:

“Please be advised that BST Media 2 Inc. is filming scenes and background material in this area, for use in a television documentary series about border security and the Canada Border Services Agency. You will not be identifiable in the series without your permission. If you are in the background while others are being filmed, or if you do not agree to be identifiable in the series, your image will be altered so you are not recognizable. If you see the crew filming in your area and do not wish to be filmed, please notify a crew member and we will accommodate you. If you don’t see a camera crew, no filming is taking place.”

From a reading of this sign, travelers may still be filmed without their advance consent. Those who don’t want to have their personal information – their own image – collected for this purpose, or who don’t want to be in the TV show are still required to actively opt-out of being filmed by notifying the film crew that they do not want their images to be used in the show. The filming of individuals for entertainment purposes, by government and its agents, without obtaining full and freely-given informed consent remains a grievous infringement on their right to privacy. Canadians have the right to lawfully enter and exit the country as they please, and should not be subjected to being filmed for the purposes of a reality TV show to do so. Simply being present in a location (a border crossing) that you have to be in by law (in order to enter Canada) does not constitute informed consent to be filmed for a TV show.

The Canadian government should not be actively supporting and participating in an activity that so grievously violates the rights of its citizens. While there is no direct financial cost to the CBSA that we are aware of, the government agency’s contribution in terms of staff supervising film shoots, and providing editing and review of the show is “not insignificant”.  As per the agreement between Force Four Productions and the CBSA, representatives of the CBSA Communications Directorate must be present during all filming. The CBSA also identifies scenarios, sites and storylines for the show, and retains the right to review and approve all rough footage. As well, the government’s engagement with the show has been both approved and publicly defended by Public Safety Minister, Vic Toews. All together, we understand that this may have added up to $60,000 in public costs so far.

We believe the CBSA’s active involvement in filming cross-border travelers violates Canada’s Privacy Act, which states that a public body can only collect personal information that is directly related to their programs or activities. Filming for the purposes of a reality TV show serves absolutely no public purpose related to the CBSA’s legislative mandate of “providing… border services that support national security and public safety… and facilitate the free flow of persons and goods”. As well, CBSA’s participation in the filming arguably violates the agency’s own Charter, which includes a commitment to respecting individuals’ privacy and confidentiality.

For these reasons, the BCCLA has launched an effort at bccla.org/notforTV to allow travelers to explicitly refuse consent for CBSA, and the private TV production companies it is working with, to film them and to collect and use their personal information and images in the Border Security reality show. We have also asked members of the public who think they may have been filmed for this TV series while at the border to contact us with their stories. The BCCLA intends to file a privacy complaint if an individual or individuals can be found who have had their privacy rights violated and wish to take further action.

The Canadian government should not be actively participating in a reality TV show that infringes on the rights of individuals crossing the border. We, therefore, ask that the CBSA immediately cease and desist its participation in Border Security and stop both promoting and allowing the filming of its operations for commercial and entertainment purposes.

 

Here are 4 ways you can take action to protect your privacy and stop the CBSA from filming people without their consent:

 Survey

Refuse and Revoke Your Consent

If you have crossed the border recently or if you plan to travel to the United States, you might be a part of the Border Security TV show without even knowing it. Would you like to protect your privacy rights by letting Canada Border Services Agency know that you refuse your permission to have your private travel featured on reality TV?It only takes a few moments. The BCCLA will communicate that you do not want your information used to the appropriate authorities.
Brennan Novak, from The Noun Project

Participate in the BCCLA’s Privacy Complaint

Have you already travelled across the border, and think that you may have been filmed for the Border Security television series without your informed consent? Tell us a bit about your story and potentially file a privacy complaint against Canadian Border Services Agency!
 Become A Member! Image Credit: Alexandra Coscovelnita, from The Noun Project

Become A Member

There’s strength in numbers, and our members make our work to protect basic rights and freedoms possible. Join the growing community of people who share your concern about privacy at the border. All membership fees and donations receive a charitable tax receipt for the full amount.
Tell Your Friends!  Graphic credit: Joanna Giansanti, from The Noun Project

Tell Your Friends

 Do you know of someone else who might be interested in this? Share this page on facebook or twitter by using the buttons below, or you can email your friends and family here:

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< class="what-entry-title">The Mass Casualty Commission: Advocating with East Coast Prison Justice Society to Enhance Democratic Policing and Protect Marginalized People and Communities>

 

In April 2020, a man impersonating an RCMP officer killed 22 people in various locations in Nova Scotia. The public has been asking questions ever since, wanting to understand whether the state – especially police – could have better protected the communities harmed.  The failure of the RCMP to send an emergency alert through cellular phones to warn Nova Scotians that a killer was at large and driving an RCMP replica vehicle is the most well-known example of police actions (or inactions) that have perplexed and angered the public.

Seeking to ask such questions and to make findings on the causes, context and circumstances giving rise to the mass casualty as well as the responses of police, the governments of Canada and Nova Scotia created the Mass Casualty Commission, an independent public inquiry that is currently underway.  

The BCCLA has joined forces with the East Coast Prison Justice Society to participate in this important inquiry due to our shared interest in human rights and police accountability.  The East Coast Prison Justice Society works to raise awareness of the socio-economic, political, and institutional inequalities impacting marginalized people and communities in Nova Scotia and the Atlantic Region.

The record before the Mass Casualty Commission has revealed a devastating policing failure, on April 18 – 19, 2020, and long before, that contributed to the mass casualty. One of the most disturbing aspects of this catastrophe is that the evidentiary record has revealed that some police were either unwilling or unable to perceive the perpetrator as a threat to public safety and properly investigate him. Even after receiving tips from the public about illegal weapons and violent intentions, the police failed to take appropriate action against the man whose own character reflected and exemplified many of the core characteristics of police culture itself.

Our participation has been largely limited to the third and final phase of the inquiry where recommendations for the future were developed.  Our submissions drew attention to the systemic and cultural nature of policing problems, stressing that current oversight mechanisms are ineffective and leave communities vulnerable. We need strong and independent civilian oversight of police rather than the current labyrinth of weak processes that consistently favour police. We have also recommended that some policing resources be redirected to develop and enhance non-policing community-based services.

As the Mass Casualty Inquiry continues through to 2023, we will strive alongside East Coast Prison Justice Society to ensure that the Commission does not inadvertently cause further harm to marginalized people and communities through its recommendations to the Canadian and Nova Scotian governments. Should any final recommendations echo those of our coalition, we will be sure to take advantage of the momentum and advocate all relevant governments in Canada to implement them without delay.

< class="what-entry-title">Open Letter: BCCLA Urges Mayor Sim and Vancouver City Council to not Adopt IHRA Definition of Antisemitism>

The British Columbia Civil Liberties Association urges Mayor Ken Sim and Vancouver City Council not to adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism.

The IHRA definition of antisemitism is extremely vague, open to misinterpretation, and the document states that it is “non-legally binding.” Not only is the text unsuitable for any legal or administrative purpose in British Columbia or Canada, but the accompanying “illustrations” suggest that the definition conflates certain critiques of the state of Israel with antisemitism. If implemented, the IHRA definition will serve to severely chill political expressions of criticism of Israel as well as support for Palestinian rights.

Read the Whole Letter

< class="what-entry-title">There and Back Again: The Fight Over Canada’s Sex Work Laws Returns to Court>

Photo by: Jared, Migrant Workers Alliance for Change

In 2013, the Supreme Court of Canada in the Bedford decision[1] ruled that three provisions in the Criminal Code related to sex work (keeping a common “bawdy house”, living on the avails, and communicating in a public place) violated the section 7 Charter rights to security of the person set out in the Charter of Rights and Freedoms. For the Supreme Court, the key point was that the laws did not merely set out conditions for those involved in sex work, but that they made things worse – by preventing individuals from taking steps to protect themselves and heightening the danger they faced. While acknowledging that Parliament may regulate sex work, the Supreme Court ruled that it cannot do so in a manner that violates the constitutional rights of sex workers. It declared the provisions unconstitutional and held that it was up to Parliament to go back to the drawing board.

Parliament responded to Bedford by enacting the Protection of Communities and Exploited Persons Act (PCEPA) in 2014. At the time, the BCCLA wrote that the law was flawed, not only because it recreated the dangerous conditions that made the previous provisions unconstitutional in the first place, but also because it was premised on targeting aspects of sex work (exploitation, sexual assault, involvement of minors) that would be more appropriately addressed through existing Criminal Code provisions. We warned that PCEPA would almost certainly be put before the courts to guarantee the rights and safety of marginalized and vulnerable individuals, emphasizing that “sex work in itself is neither deserving of condemnation nor inherently harmful”.

Between October 3 and 7, 2022, Canada’s sex work regime was challenged before the Ontario Superior Court of Justice in Canadian Alliance for Sex Work Law Reform v Canada. In support of PCEPA, the government argues that coercion, exploitation, and violence is inherent in sex work and that the legislation addresses systemic inequalities by targeting purchasers and third parties.

On the other hand, the applicants – a coalition of sex worker-led organizations[2] and current and former sex workers across Canada – argue that PCEPA has failed to meet its stated objectives and instead, has worsened the harms faced by sex workers. They provided court-tested evidence to demonstrate that PCEPA:

  • makes it more difficult for sex workers to screen clients;
  • undermines their ability to negotiate services;
  • increases the risk of eviction from safer indoor locations;
  • constrains access to advertising and third-party supports;
  • increases their vulnerability to police harassment and criminalization; and
  • diminishes the likelihood of reporting violence to the police.

The applicants asked the court to look beyond any lofty objectives and inquire into the actual and harmful realities of the PCEPA regime. They assert that the on-the-ground impacts of the laws do not accord with the constitutional guideposts set in Bedford. Notably, they are not the only ones to do so: the House Standing Committee on Justice and Human Rights recently reviewed the regime and recommended that “the Government of Canada recognize that protecting the health and safety of those involved in sex work is made more difficult by the framework set by the [PCEPA] and acknowledge that, in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous.”[3]

The BCCLA’s Intervention in Canadian Alliance for Sex Work Law Reform

Against this backdrop, the BCCLA intervened in this case to argue that the section 7 analysis should be informed by the substantive equality considerations set out in Fraser,[4] a Supreme Court decision concerning section 15 Charter rights. Such an approach recognizes that Charter rights are not isolated compartments, but may instead influence and support each other to encourage more complex and nuanced understandings of the law.

The Supreme Court of Canada’s understanding of equality has evolved away from a formal theory of equality, focused on ensuring that ‘similarly situated be similarly treated’, towards substantive equality, a philosophical theory focused on the impact of laws on vulnerable claimants.

In Fraser, the Court wrote that the substantive equality analysis involves a consideration of (1) the full context of the group’s situation; (2) the actual impact of the law on that situation; and (3) the persistent systemic disadvantages [that] have operated to limit the opportunities available to that group’s members.[5]

The BCCLA argued that this analytical framework should inform an assessment of section 7 Charter rights, where the court must determine whether the challenged laws have deprived the claimants of the right to life, liberty, or security of the person, contrary to the principles of fundamental justice. 

While the government argues that the current laws attempt to balance the “competing interests” of those who are coerced into sex work and those who freely choose to do so, the BCCLA in its oral submissions argued that a substantive equality approach rejects such narrow views and avoids stereotyping and categorizing sex workers into false dichotomies.

Instead, the BCCLA urged the court to adopt a substantive equality lens to recognize the full breadth of intersectional realities and overlapping harms experienced by sex workers who are Indigenous, Black, racialized, migrant, trans, living with disabilities, and living in poverty. In the BCCLA’s view, the government’s approach subverts the substantive equality analysis by failing to recognize how sex workers are impacted by systemic racism, sexism, and classism, and how the law itself only serves to reinforce, rather than remedy, those structural inequalities.

According to Akosua Matthews, counsel for the BCCLA, the importance of this case is clear: “The Ontario court must recognize that the idealized pursuit of the abolition of sex work, as represented by PCEPA, cannot come at the cost of sex worker safety. A substantive equality analysis requires looking behind the veil of a seemingly neutral law and acknowledging the real harms disproportionately borne by vulnerable sex workers facing systemic marginalization.”

Here, the Ontario court has an important opportunity to reaffirm the parameters set out by the Supreme Court in Bedford,and to signal to Parliament once again that sex work laws must respect the constitutional rights of sex workers.

The BCCLA is represented by Emily Lam, Akosua Matthews, and Ruth Wellen of Kastner Lam LLP.

The BCCLA’s factum is available here: BCCLA Factum


[1] Canada (Attorney General) v. Bedford, 2013 SCC 72.

[2] The Canadian Alliance for Sex Work Law Reform.

[3] Standing Committee on Justice and Human Rights, “Preventing Harm in the Canadian Sex Industry: A review of the Protection of Communities and Exploited Persons Act” (June 2022), 44th Parl, 1st Sess, at p 37.

[4] Fraser v Canada (Attorney General), 2020 SCC 28.

[5] Fraser at para 42.

< class="what-entry-title">New BCCLA Staff>

Join us in welcoming the new members of BCCLA team. Vibert and Ga will be joining us as our new Litigation director and Litigation Staff counsel. We are very excited to have them on board! Learn more about them below.


Vibert Jack, Litigation Director

Vibert Jack joined the BCCLA as Litigation Director in 2022. He completed an undergraduate degree in engineering at the University of British Columbia and following that worked briefly in the mining industry. Vibert decided to change paths in order to find a career that better aligned with his core values. He returned to UBC, this time to study law. Following that, he articled at a boutique criminal and administrative law firm. Vibert then joined Prisoners’ Legal Services, where he worked tirelessly to defend the civil liberties and human rights of incarcerated people, who are among the most marginalized and vulnerable populations in our Country. Vibert is committed to confronting injustice at every opportunity.

Outside of work Vibert enjoys playing soccer, football, and an especially lively game of chess.

Ga Grant

Ga (she/her) joined the BCCLA as Staff Litigation Counsel in 2022. Ga brings four years experience in legal practice serving First Nations with a focus on Indigenous rights, litigation, and specific claims. Previously, Ga clerked with the BC Supreme Court, assisted with legal aid work on Gitxsan and Wet’suwet’en territories, and summered with government and a boutique litigation firm, among other community justice work. Ga holds her Juris Doctor from the University of Victoria following her Bachelor of Music from the University of Ottawa. 

Ga was called to law to find creative and strategic use of the colonial legal system as a tool for justice, practiced alongside a lens of decolonial engagement. Ga is a settler of immigrant Lebanese and Jewish-American descent. She grew up on the traditional territories of the Haudenosaunee and Anishinaabe peoples and for the past decade has lived between the territories of Skwxwú7mesh (Squamish), Səl̓ílwətaɬ (Tsleil-Waututh), xʷməθkwəy̓əm (Musqueam), lək̓ʷəŋən (Songhees and Esquimalt), and W̱SÁNEĆ (Saanich) peoples.

Ga is also a musician and singer-songwriter; she can often be found writing new ditties and hanging out with her cat.

< class="what-entry-title">David Eby Knows Better>
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The BCCLA condemns BC Attorney General David Eby for throwing human rights, civil liberties, and evidence under the bus by suggesting the state should be able to involuntarily detain and force treatment on people who use drugs. As a lawyer, Minister Eby knows that such a law would violate Charter rights. Section 7 of the Charter guarantees everyone the right not to be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice. The right to decide what is done to one’s own body is essential.  Forced treatment of people who use drugs cannot be demonstrably justified in a free and democratic society. He also knows that just this Spring, his government abandoned a similar proposal to involuntarily treat youth because of  “the trauma associated with holding youth against their will, especially Indigenous youth.” Health experts know that the evidence does not support Eby’s dangerous musings; all evidence is clear that involuntary drug treatment can cause great harm – even death – and does not save lives. 

Minister Eby said involuntary care is needed to give people who use drugs a “chance” to survive. He is wrong and he knows it. What is needed is an end to the criminalization of drugs, a safe supply, and culturally safe, accessible, and voluntary treatment services for all.

This attempt to score political points for his leadership campaign is misleading, immoral, and reckless. But David Eby knows that too.

< class="what-entry-title">Solitary Confinement: Legal Torture?>
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Solitary confinement has been described as “the most onerous and depriving experience that the state can legally administer in Canada.”[1] The United Nations has defined solitary confinement as the detention of prisoners to their cells for 22 hours or more per day without meaningful human contact and prolonged solitary confinement as such a practice lasting for more than 15 consecutive days.[2] In Canada, we have been hesitant to call some of our penal activities ‘solitary confinement,’ choosing instead to refer to them as ‘administrative segregation’ or ‘lockdowns,’ even though these practices often meet the threshold required to be considered prolonged solitary confinement in international law.

Initially, solitary confinement was introduced as a supposedly humane alternative to corporal punishment and was backed by multiple prison reformists.[3] Solitary confinement was once considered greatly preferable to whippings or beatings, but social science and the experiences of those subject to its implementation have shown that the impacts of solitary are significant. There have been multiple studies which have indicated that solitary confinement may lead to long-lasting and, in some cases, irrevocable harm to the physical and mental health of people in prison.[4] These opinions are almost universally held by experts within this field.[5] These harms include an increased risk of suicide, self-harm, panic attacks, general anxiety, social anxiety, depression, dissociation, and an inability to reintegrate into the prison population or wider Canadian society following release. These effects are staggering and are even more acutely experienced by those with mental health issues. Further, solitary confinement disproportionately targets the most marginalized communities in Canada, most notably Indigenous individuals and people with disabilities.[6]

Some have contended that solitary confinement is a valuable and necessary practice. They argue that solitary confinement provides a safety net within the prison, where dangerous prisoners who are threats to others, whether to staff or other prisoners, can be held safely. However, when one pairs such a suggestion with research on the matter, there is a legitimate concern that solitary confinement instead increases dangers within the prison. Notably, solitary confinement has been linked multiple times to increased occurrences of violence, anti-social behaviour and recidivism, and may in fact have the opposite effect of what is desired, making prisons and society generally less safe.[7]

The United Nations have recognized the harms which may be incurred by placing an individual in solitary confinement. Rule 45 of the United Nations Standard Minimum Rules for the Treatment of Prisoners states that solitary confinement must only be used in exceptional cases as a last resort, must be subject to independent review, and must never be used against pregnant or breastfeeding women, children, or those with mental disabilities.[8] Further, Rule 43 states that prolonged or indefinite solitary confinement amounts to torture and cruel and inhumane punishment. Canada has long engaged in practices which violate these rules, and in 2015, the BCCLA took legal action, claiming the administrative segregation law (which authorized prolonged solitary confinement) infringed upon many sections of the Charter.[9]  The BC Supreme Court agreed that the administrative segregation law was unconstitutional and struck it down.[10] The BC Court of Appeal agreed.[11]

Even though the administrative segregation law was struck down as unconstitutional, prolonged solitary confinement continues to be utilized across Canada to this day.[12] Certainly, Canada is failing to uphold its international commitments and promise to its citizens to protect and defend our rights. That is why the BCCLA filed a lawsuit last fall to challenge the use of prolonged lockdowns in federal prisons. During lockdowns, people can be restricted to their cells all day, for several days or weeks at a time. Many lockdowns constitute solitary confinement under the United Nations Standard Minimum Rules for the Treatment of Prisoners.

If Canada is to claim to be a bastion for rights and fairness domestically and in the international community, we must acknowledge our practices which contravene these commitments. Solitary confinement, harmful in practice and unjust in implementation, is one such failing and must be stopped.

[1] Annual Report of the Office of the Correctional Investigator 2014-2015 at p. 31 [2014-2015 Annual Report]

[2] https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf

[3] Howard, J. (2013). The State of the Prisons in England and Wales: With Preliminary Observations and an Account   of Some Foreign Prisons (Cambridge Library Collection – British & Irish History, 17th & 18th Centuries). Cambridge: Cambridge University Press. doi:10.1017/CBO9781139891349 (page 43)

[4] https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2013.301742; https://journals-sagepub-com.proxy.lib.sfu.ca/doi/pdf/10.1177/26326663211065644; https://ajph-aphapublications-org.proxy.lib.sfu.ca/doi/pdf/10.2105%2FAJPH.2013.301742

[5] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 251)

[6] British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62 (at para 467 & 493)

[7] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 330)

[8] https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf

[9] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 260)

[10] British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62. 

[11] British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228.

[12] https://johnhoward.ca/drs-doob-sprott-report/

< class="what-entry-title">A Deep Dive Into Cullen’s Final Report>
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On June 15, 2022, the Cullen Commission of Inquiry into Money Laundering in British Columbia released its Final Report, which totalled 1,804 pages. This report followed the completion of 133 days of evidentiary hearings, where nearly 200 witnesses provided evidence on money laundering in various sectors of the BC economy.

The BCCLA was an active participant in the Cullen Commission and the only civil liberties organization granted full participant status. From February 2020 to October 2022, the BCCLA participated in Commission hearings, where we questioned witnesses and advocated for human rights, privacy protections, and due process.

The BCCLA has reviewed the Final Report, and overall, we are very disappointed. The Final Report calls for sweeping changes to tackle money laundering in the province, including the introduction of unexplained wealth orders, the aggressive pursuit of civil forfeiture, increased policing, and broad information collection and sharing. In our closing submissions, the BCCLA spoke out against taking this kind of tough-on-crime approach to money laundering, arguing that these invasive measures undermine constitutional rights, have not been adequately tested, and would be expensive to implement. The BCCLA advocated instead for addressing the root causes of money laundering, including our failed model of drug prohibition.

While we were quite disappointed by the Final Report, there are some positive aspects. For example, the BCCLA was pleased that Commissioner Cullen acknowledged the racist stereotypes being perpetuated in the public discourse about money laundering. We were also pleased that the Commissioner has recommended that the Civil Forfeiture Office should no longer be self-funded.

Below, we summarize some key human rights issues raised by the Final Report and provide our perspective on these issues.  

Civil Forfeiture

The Final Report calls on BC to pursue civil forfeiture more aggressively and to invest more heavily in civil forfeiture to fight money laundering.[1] Commissioner Cullen specifically recommends that the Civil Forfeiture Office should “significantly expand its operational capacity by adding investigators and analysts capable of identifying and targeting unlawfully obtained assets and instruments of unlawful activity beyond those identified in the police file.”[2]

The BCCLA is profoundly concerned by this recommendation. As we argued in our closing submissions, civil forfeiture grants extraordinary power to the state, undermines Charter rights, and hinders access to justice. Civil forfeiture allows the government to take property even if the owner has not been convicted of a crime. To make matters worse, there is a complete lack of credible evidence that it is an effective tool for fighting money laundering.[3] There is also evidence demonstrating that civil forfeiture disproportionately impacts marginalized communities, including individuals living on the Downtown Eastside.[4] We are extremely disappointed that the Final Report calls on BC to ramp up civil forfeiture. We strongly oppose any expansion of BC’s deeply problematic civil forfeiture regime.

Having said that, we are pleased that Commissioner Cullen has recommended that the Civil Forfeiture Office should no longer be self-funded.[5] We asked the Commissioner to adopt this recommendation in our closing submissions.[6] A self-funding model can create perverse incentives for public authorities to use civil forfeiture laws to benefit their bottom lines rather than to fight serious crime.[7]

Unexplained Wealth Orders

We are deeply troubled that Commissioner Cullen has recommended the adoption of Unexplained Wealth Orders (UWOs) in BC.[8] UWOs are a controversial legal tool that requires a person to explain the source of their wealth and allows for their wealth to be confiscated if they cannot provide sufficient evidence that it was lawfully acquired. UWOs undermine privacy rights, the presumption of innocence, and the right to silence. They have only been adopted in a few countries, and there is no credible evidence that they have been effective.[9]

In recommending the adoption of UWOs, Commissioner Cullen noted that he was “strengthened in [his] view that unexplained wealth orders are a viable solution” [10] because a legal opinion prepared for the Commission by the Honourable Thomas A. Cromwell, CC concluded that a United Kingdom-style UWO regime would pass constitutional muster in Canada.[11] The BCCLA made submissions in response to the Cromwell Opinion, noting that the utility of this opinion was quite limited, particularly given that no one was given the opportunity to question the Honourable Mr. Cromwell. Further, we highlighted that the Cromwell Opinion concluded that even a UK-style UWO regime “would give rise to a number of Charter issues” which would limit their usefulness.[12] In light of this, we are very disappointed that the Commission has relied on the Cromwell Opinion to recommend the adoption of a draconian and controversial legal tool in BC. 

Conflating Foreign Money and Dirty Money

One positive aspect of the Final Report is that it acknowledges the role of racism in public discourse about money laundering in BC. In our closing submissions, the BCCLA raised concerns about the disproportionate focus on Asian people in public rhetoric about money laundering and the harm this can do to Asian communities. We noted that this discourse has led to the scapegoating of “foreign buyers” and the widespread belief that housing has become unaffordable due to “Chinese money laundering.”[13]

The BCCLA’s perspective on this issue was reflected in the Final Report. Commissioner Cullen acknowledged that “ideas have developed in the public discourse that promote generalizations about the involvement of ethnic or racial groups in money laundering activity in British Columbia. There is, for example, a theory that money laundering by Chinese criminals in the housing market in the Lower Mainland has contributed to a housing unaffordability crisis.”[14] However, based on the evidence, Commissioner Cullen concluded these stereotypes were unfounded. Indeed, he determined that “low supply, high demand, and low interest rates are the drivers of housing unaffordability in British Columbia” – not money laundering or foreign investment.[15]

Commissioner Cullen also recognized the dangers of unduly focusing on China in public discourse about money laundering and the risks of conflating “foreign money” with “dirty money”:

I share Professor [Henry] Yu’s concerns about our public dialogue becoming infused with racist stereotyping. There are legitimate policy questions relating to foreign ownership of real estate in the province. Those questions should be addressed on their merits. They should be decided on the basis of sound policy and evidence. They should not engage “us vs. them” dynamics and must take care not to stray into treating any ethnic community as presumptively dishonest or unlawful. It is important to be aware of and avoid racism, whether it is glaring and obvious, or inadvertent and subconscious.[16]

Privacy and Information Sharing

The Final Report presents information sharing as a “key component of any anti-money laundering strategy”[17] and recommends many proposals to increase information collection and sharing in a manner that would unnecessarily undermine privacy rights.

For example, Commissioner Cullen has recommended the adoption of safe harbour provisions which would allow financial institutions to share information about potential money laundering without exposing them to liability.[18] As we noted in our closing submissions, such provisions are unnecessary as privacy legislation already allows for information sharing for the purposes of fighting money laundering in appropriate cases. Safe harbour provisions unduly erode privacy protections by encouraging further information-sharing and providing blanket protections against liability.[19]

We are also disappointed that Commissioner Cullen has recommended the creation of an Anti-Money Laundering Commissioner to facilitate strategic and tactical information sharing[20] and to analyze and aggregate data collected from multiple sources.[21] In our view, surveillance is not the solution.

We are pleased that the Final Report acknowledged the BCCLA’s concerns with Project Athena – a public-private partnership between law enforcement, the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) and banks to fight money laundering in casinos. Commissioner Cullen wrote: “I share the BC Civil Liberties Association’s concern about the potential for tactical information-sharing partnerships – such as Project Athena – to circumvent the requirements of section 8 of the Charter and undermine established constitutional rights.”[22] However, despite acknowledging these serious concerns, the Final Report nonetheless encourages significant tactical information sharing between law enforcement and public and private entities.[23]

The BCCLA is also pleased that the Commission has rejected suggestions to grant FINTRAC real-time access to all financial transactions in Canada.[24] The BCCLA was strongly opposed to this proposal because it would undermine FINTRAC’s independence and violate section 8 of the Charter by allowing law enforcement to engage in suspicionless searches. Consistent with the BCCLA’s submissions, the Commissioner criticized FINTRAC for their poor track record of turning a high volume of suspicious transaction reports into low quality actionable information.[25] Given this disproportionate and ineffective disclosure regime, the Commissioner properly concluded that FINTRAC could not be relied upon to provide timely, proactive intelligence.[26] Crucially, the Commissioner acknowledged that providing law enforcement with direct and real-time access to FINTRAC databases engaged constitutionally recognized privacy interests, and concluded that law enforcement could not “realistically expect” to receive such unfettered access to this level of information.[27]

The Commissioner’s consideration of privacy interests in the FINTRAC context is a rare bright spot, overshadowed by the fact that the Commissioner has seen fit to erode those privacy interests elsewhere throughout the Final Report by recommending drastic expansions to formal and informal information sharing arrangements between public and private entities and law enforcement.

Policing and Enforcement

The BCCLA is very concerned by the recommendation to create a specialized provincial intelligence and investigation unit to combat money laundering.[28] The new unit, whose mandate would be to identify and disrupt sophisticated money laundering operations, is lauded as a way to significantly combat organized crime. The Commissioner acknowledged the BCCLA’s serious concerns with this proposal,[29] and we remain concerned that the Commissioner has nevertheless made it a key recommendation in his report.

Specialized police units have failed to make an impact in combatting money laundering.[30] Experience has shown that staffing, structural, and resource issues have hindered those units’ ability to be an effective or efficient means of fighting money laundering.[31] For the Commissioner to contemplate a “significant investment by the Province”[32] to establish a new unit without remedying the serious issues that have arisen in previous units is a worrying oversight. It is unreasonable to expect that an infusion of resources, including a proposed “cadre” of experts,[33] will result in a different outcome without first addressing the underlying reasons why these units have been unable to retain their core investigative officers. The Commissioner has acknowledged that this provincial unit will encounter some redundancy with the federal investigative unit, and this is an additional issue that has not been adequately addressed.[34]

The BCCLA has repeatedly emphasized that appropriate responses to money laundering must consider the impacts on the rights and liberties of individuals.[35] With its recommendation for a new dedicated provincial unit, however, the Commission has fallen far short. The Commissioner is clearly alive to the fact constitutional issues may arise as the proposed unit seeks to fulfill its mandate.[36] However, the Commissioner has elected to ground the unit on an implicit expectation that it will operate within constitutional limits.

The BCCLA is also troubled by the Commissioner’s view that the early days of Project Athena may serve as a “useful” model for approaching the Charter issues that could arise.[37] Indeed, it is concerning that the Commissioner views Project Athena as “one of the most important anti-money laundering initiatives in recent years”.[38] As noted above, the BCCLA has raised serious constitutional concerns with this public-private partnership.[39] The Commission had the opportunity to invite, or retain, constitutional experts to speak to these concerns. For the Commissioner to make such an impactful recommendation with only a cursory acknowledgement[40] of the associated Charter issues is deeply disappointing.

Conclusion

The BCCLA combed through 1,804 pages so you don’t have to. Our position is that the Final Report’s findings and recommendations not only miss the mark on tackling money laundering but also threaten the human rights and civil liberties of people across BC. Despite a few encouraging aspects, the Commission has overall recommended a tough-on-crime approach that is cause for significant concern.


[1] Final Report, pp 8-9.

[2] Final Report, p. 1614.

[3] BCCLA Closing Submissions, pp. 3-12.

[4] https://vancouversun.com/news/local-news/bc-forfeiture-law-hits-poor-addicted-hardest?r

[5] Final Report, pp. 1614-1615.

[6] BCCLA Closing Submissions, p. 10.

[7] BCCLA Closing Submissions, p. 10.

[8] Final Report, p. 1618.

[9] See BCCLA Closing Submissions, p. 12.

[10] Final Report, p. 1618.

[11] Final Report, Appendix I, p. 1748.

[12] Final Report, Appendix I, p. 1748.

[13] BCCLA Closing Submissions, pp. 38-42.

[14] Final Report, p. 1624.

[15] Final Report, pp. 967, 1624.

[16] Final Report, p. 996.

[17] Final Report, p. 226.

[18] Final Report, p. 1008.

[19] BCCLA Closing Submissions, pp. 30-31.

[20] Final Report, p. 227.

[21] Final Report, p. 947.

[22] Final Report, p. 209.

[23] Final Report, p. 1558.

[24] Final Report, p, 1549.

[25]  BCCLA Closing Submissions, para. 50. Final Report, p. 1546.

[26] Final Report, p. 1551.

[27] Final Report, p.1549.

[28] Final Report, p. Recommendation #91.

[29] Final Report, p. 1553.

[30] BCCLA Closing Submissions, para. 131.

[31] IIGET and JIGET have both faced resourcing, structural, and staffing issues, see BCCLA Closing Submissions, paras. 116, 121.

[32] Final Report, p. 1555.

[33] Final Report, p. 1561.

[34] Final Report, p. 1557. 

[35] BCCLA Closing Submissions, para. 9.

[36] Final Report, pp. 1558, 1561.

[37] Final Report, p. 1559.

[38] Final Report, p. 1532.

[39] Final Report, p. 1515.

[40] Final Report, p. 1558.


 

< class="what-entry-title">Exemption ≠ Decriminalization>
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The illicit drug poisoning crisis continues to exact a heavy toll. In British Columbia, the Coroners Service recorded more deaths from drug poisoning in 2021 than in any other year. The record-high 2236 deaths documented in 2021 was more than double the number recorded in 2016, when BC’s Provincial Health Officer first declared the opioid-related overdose crisis a public health emergency.[1] According to the Coroners Service’s most recent data, 2022 is slated to match or exceed this pace, contributing to the deadly epidemic that has taken over 30,000 lives across Canada to date. By way of sombre but necessary comparison, the COVID-19 pandemic has so far contributed to over 42,000 lives lost across the country. While that public health emergency has attracted a concerted and nation-wide mobilization of protective measures, resources, and coordination between all sectors of society to lessen and overcome its worst effects, the drug poisoning crisis has not. Without a commensurate response, this parallel crisis will continue inexorably along this devastating path.

Missed Opportunities: Bills C-5 and C-216

Against this backdrop, the response to the drug poisoning crisis from the federal government[2] has been woefully inadequate. On June 15, 2022, the House passed government Bill C-5, An Act to Amend the Criminal Code and the Controlled Drugs and Substances Act (CDSA), sponsored by the Minister of Justice and Attorney General of Canada David Lametti. While the focus of Bill C-5 lies in removing mandatory minimum penalties for all drug offences under the CDSA and the Criminal Code, it nevertheless does not fully decriminalize simple possession. Indeed, the BC Civil Liberties Association previously criticized Bill C-22, the identical predecessor to Bill C-5, for not going far enough to shift Canada away from the damaging criminal law approach to drug use that has systemically and disproportionately impacted Indigenous, Black, and marginalized people within Canada’s criminal legal system.

Adherence to this disappointing status quo is difficult to reconcile with the mandate letter addressed to Canada’s Minister of Mental Health and Addictions Carolyn Bennett. The letter called for “a comprehensive strategy to address problematic substance use in Canada”, including efforts to improve public education, improve access to evidence-based treatment and harm reduction services, and develop standards for substance-use treatment programs.[3] Put simply, the federal government’s continued reliance on a criminal justice approach to drug use in Bill C-5 is incompatible with the public health approach envisioned by the mandate letter. This contradiction demonstrates a lack of coordination between federal ministries; a disappointing display of leadership that unfortunately comes at a time when concerted action is needed to stem the devastating tide of preventable drug poisoning deaths.

Similarly, it is disappointing to see the federal government’s rejection of private member’s Bill C-216, the Health-based Approach to Substance Use Act, brought forward by MP Gord Johns of Courtenay-Alberni, BC. That bill, which was defeated on June 1, 2022, would have recognized the treatment of substance use as a public health issue by accomplishing three things. First, it would have repealed the simple possession offences in the CDSA; second, it would have expunged the records of people with prior simple possession convictions; and third, it would have implemented a national strategy on substance use with measures to ensure access to a safe supply of drugs and increased access to harm reduction, treatment, and recovery services. If this sounds familiar, it is because it aligns closely with the comprehensive strategy contemplated in Minister Bennett’s mandate letter. For the federal government to tout the need for a public health approach while simultaneously making incremental adjustments to a flawed criminal regime is an incomprehensible, if not cynical, attempt to varnish its actions with the illusion of meaningful progress.

A Step Forward? BC Receives Exemption to Decriminalize Simple Possession

On May 31, 2022, the federal government took the historic step of granting the Province of BC’s request to exempt adults from being charged under the Controlled Drugs and Substances Act (CDSA) with the personal possession of certain illegal drugs. The move to decriminalize simple possession – which has attracted support from BC Provincial Health Officer Dr. Bonnie Henry, the Canadian Association of Chiefs of Police, the Centre for Addiction and Mental Health, and over 180 civil society organizations[4] – is a step in the right direction. Like other drug policy and human rights advocates, however, the BCCLA also views the announcement as a missed opportunity for the many people who will be left behind by the cumulative possession threshold of 2.5 grams once the exemption comes into effect in January 2023.

More broadly, continued reliance on the piecemeal regional exemptions made necessary under the current CDSA scheme is unconscionable. People in Canada cannot continue to wait with bated breath for the results of each exemption application when, according to the latest available data, individuals continue to die from drug poisoning at an average rate of 6 deaths per day in BC and 19 deaths per day across Canada. While the announcement is a positive development, the BCCLA remains deeply concerned that the federal government has not urgently prioritized a national public health approach to address the drug poisoning crisis.

The Way Forward: Drug Decriminalization Done Right

The federal government’s declarations to work collaboratively with provincial, territorial, and municipal partners ignore the reality that any amendments to the Controlled Drugs and Substances Act will require a federal response. This reality is why the BCCLA endorses the civil society platform Decriminalization Done Right: A Rights Based Path for Drug Policy, which proposes fundamental changes to drug policy, including the full repeal of federal legislation criminalizing simple possession and necessity trafficking. The BCCLA recognizes that decriminalization is not a panacea, nor will it resolve the drug poisoning crisis on its own. Rather, full decriminalization – including the removal of all criminal sanctions and administrative interventions such as fines and drug seizures associated with simple possession – will go far to reduce the stigma that forces individuals to use drugs alone, to turn to a toxic supply, and to avoid seeking safe and non-judgmental health care and social supports. A meaningful federal response must include programs that address, by the government’s own assessment, an “increasingly toxic supply, increasing feelings of isolation, stress and anxiety, and limited availability or accessibility of services for people who use drugs”[5]. Therefore, the platform also calls for access to a safe supply of drugs, evidence-based harm reduction services, and culturally appropriate supports.

As the drug poisoning crisis worsens, experts and people with lived experience have called for a particular focus on the increasingly toxic drug supply. The BCCLA recognizes that framing substance use as a moral failure disregards the fact that the unpredictable and contaminated supply – which data indicates is driven primarily by fentanyl and increasingly with benzodiazepines – is killing people from all walks of life, in all areas of the province, and irrespective of their frequency of drug use. Further, hesitation around safe supply misses the mark when the BC Coroners Service continues to report zero deaths at supervised consumption and drug overdose prevention sites, with no indication that the few pilot programs of prescribed safe supply are contributing to illicit drug deaths. Therefore, the platform recognizes that non-coercive access to a regulated, consistent, and reliable supply of non-poisoned drugs is key to saving lives.

At a time when the latest modelling suggests that opioid-related deaths may only continue to increase throughout the remainder of 2022, the BCCLA reiterates the call for transformative, immediate, and coordinated action.

 

[1] BC Coroners Service, Illicit Drug Toxicity Deaths in BC January 1, 2012 – May 31, 2022, at https://www2.gov.bc.ca/gov/content/life-events/death/coroners-service/statistical-reports.

[2] **The Liberal Party of Canada has been the governing party during the periods referenced in this blog.

[3] Prime Minister of Canada, Minister of Mental Health and Addictions and Associate Minister of Health Mandate Letter, December 16, 2021, at https://pm.gc.ca/en/mandate-letters/2021/12/16/minister-mental-health-and-addictions-and-associate-minister-health.

[4] HIV Legal Network, Letter to Canadian Government: Decriminalize Simple Drug Possession Immediately, updated March 3, 2021, at https://www.hivlegalnetwork.ca/site/letter-to-canadian-government-decriminalize-simple-drug-possession-immediately/?lang=en.

[5] Special Advisory Committee on the Epidemic of Opioid Overdoses. Opioid- and Stimulant-related Harms in Canada, Ottawa: Public Health Agency of Canada; June 2022, at https://health-infobase.canada.ca/src/doc/SRHD/Update_Deaths_2022-06.pdf, p 5.

< class="what-entry-title">Due Process for All. Except Youth.>
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Youth involved in Canada’s criminal justice system are uniquely vulnerable.[1] Young people can be more susceptible to pressure from the police and other agents of the state. They also must navigate the difficulty of advocating for their legal rights.[2] Involvement in the criminal justice system at a young age can also have serious long-term consequences. For example, young people in prison face barriers in accessing education and may have reduced employment prospects for years to come. [3]  

The Supreme Court of Canada has recognized the significant vulnerability of youth on many occasions. [4] For example, in a 2008 judgment, the Court held that the Canadian Charter of Rights and Freedoms protects a presumption that young people are less blameworthy for crimes they commit than adults, [5] as they have “heightened vulnerability, less maturity and a reduced capacity for moral judgment.” [6]

Parliament has also recognized that young people need special rights and protection. Through the Youth Criminal Justice Act (YCJA), Parliament created a separate legal system for young people charged with criminal offences. [7] With a focus on promoting rehabilitation and reintegration,[8] the YCJA aims to grant young people “enhanced procedural protection to ensure that [they] are treated fairly and that their rights … are protected.”[9]

Shockingly, however, the YCJA also denies young people a critical procedural protection: the automatic right to appeal their case to the Supreme Court of Canada. If a young person wants the highest court in the country to review a finding of guilt, section 37(10) of the YCJA says they must first get the Court’s permission for their case to be heard. [10] In contrast, adults have an automatic right to appeal to the Supreme Court in many criminal cases. In cases involving serious crimes where there is a risk of a miscarriage of justice, there is no barrier to adults initiating an appeal. [11]

This double standard has not gone unchallenged. In November 2020, one young person went all the way to the Supreme Court of Canada to challenge the constitutionality of this section, arguing that it violated his Charter rights to liberty and equality.

The BCCLA intervened in this case, further arguing that section 37(10) of the YCJA was unconstitutional because it is procedurally unfair, arbitrary, and overbroad. We told the Court that young people are entitled to robust procedural protections because they are vulnerable. We explained that an automatic right to appeal would provide youth with a critical layer of protection against wrongful convictions. Appeal rights ensure that a higher court can review the decision and verify that it was not made in error. The BCCLA was represented in this intervention by pro bono counsel Alison Latimer and me.

In May 2021, the Supreme Court rendered its judgement in this challenge and, unfortunately, upheld the constitutionality of section 37(10) of the YCJA. Chief Justice Wagner explained that denying youth an automatic right of appeal was not discriminatory, but rather “responded to the reality of their lives”[12] because it ensured court proceedings could be over quickly and would prevent “unnecessary delay.”[13]

The BCCLA strongly disagrees with this conclusion. In our view, speedy legal proceedings for youth should not come at the cost of due process.

One Supreme Court judge, Justice Abella, wrote a scathing dissent, co-signed by Justice Karakatsanis and Justice Martin, in which she concluded that the YCJA violated the Charter right to equality. She explained that this law “deprives young people of what is acknowledged to be a significant safeguard against wrongful convictions for adults, despite the evidence that young people are more vulnerable to them than adults.”[14] She noted that “[t]here is no justification for a speedy resolution if the resolution is based on an unfair trial.”[15] Justice Abella highlighted that, while all young people involved in the criminal justice system are vulnerable, racialized youth are particularly vulnerable due to systemic discrimination. [16]

The BCCLA was very disappointed by the decision of the majority of the Supreme Court and hopes that Parliament will amend the YCJA to grant youth the same appeal rights that are available to adults. 

 

[1] R. v. D.B., 2008 SCC 25 at para. 41.

[2] Nicholas Bala and Sanjeev Anand, Youth Criminal Justice Law, 3rd ed. Toronto: Irwin Law, 2012, p. 164. 

[3] Nicholas Bala, “Responding to Young Offenders: Diversion, Detention & Sentencing Under Canada’s Y.C.J.A.” Queen’s University Faculty of Law Research Paper Series (March 2015), p. 9.

[4] See ex: R. v. L.T.H., 2008 SCC 49 at para. 24; R. v. S.J.L., 2009 SCC 14 at para. 64; R. v. K.J.M., 2019 SCC 55 at para. 55.

[5] D.B. at paras. 45-69.

[6] D.B. at para. 41.

[7] Youth Criminal Justice Act, SC 2002, c 1 [YCJA], s. 3(1)(b).

[8] YCJA, s. 3(1)(b)(i).

[9] YCJA, s. 3(1)(b)(iii).

[10] YCJA, s. 37(10).

[11] Criminal Code, RSC 1985, c C-46, ss. 691(1)(a), 691(2); see also R. v. C.P., 2021 SCC 19 [C.P.] at para. 60.

[12] C.P. at para. 162.

[13] C.P. at para. 162.

[14] C.P. at para. 86.

[15] C.P. at para. 4.

[16] C.P. at para. 88.

< class="what-entry-title">Remembering BobbyLee Worm>
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Mother. Activist. Powerful. Loyal. Loving. Courageous.

The BCCLA is mourning the loss of BobbyLee Worm, a Cree woman who loved life and had three beautiful children. She is remembered for her willingness to speak up against injustice. Because of her courage, long-term solitary confinement is now illegal in Canadian prisons.

Despite the hardship she experienced, BobbyLee leaves a legacy of hope and inspiration. She was a friend of and activist alongside the BC Civil Liberties Association for many years. Her efforts to share her story have directly led to improved prison conditions for many incarcerated people across Canada.

BobbyLee helped to transform the fight to end solitary confinement in Canadian prisons. She gave the movement a voice and she convinced judges, legislators, and ordinary Canadians that this practice was unacceptable. She spoke with honesty and clarity about her experience of imprisonment, in a way that transformed public understanding.

At age 19, BobbyLee was sentenced to six years in federal prison for a first offence. She spent more than three and a half years of her sentence in solitary confinement, including a period of 747 consecutive days. During this period, BobbyLee was confined for up to 23 hours a day in an eight by ten-foot cell. She was held under a discriminatory policy known as the “Management Protocol,” which was designed exclusively for women prisoners. The vast majority of the women placed on the Management Protocol were Indigenous. The policy was blatantly unlawful from its inception, and yet the Correctional Service of Canada (CSC) made use of it for several years.

Despite the risks of speaking out while still incarcerated, in 2011, BobbyLee asked the BCCLA to file a lawsuit. Her goal was not just personal – it was to abolish solitary confinement for the benefit of all incarcerated people. Two days later, BobbyLee was released from the Management Protocol. Later that month, the CSC announced it would end the program across Canada.

BobbyLee went on to testify in the BCCLA and John Howard Society’s legal challenge to the administrative segregation law, which allowed for long-term solitary confinement. Her testimony was crucial for the judge to find that solitary confinement places people in prisons at a significant risk of serious harm. In 2019, the BC Court of Appeal upheld the trial court’s ruling that the administrative segregation law was unconstitutional. The laws that BobbyLee challenged have since been repealed by the federal government.

“Even in the most difficult moments, BobbyLee Worm was full of love, good humour, and courage. Long after she was released from solitary confinement, she kept fighting on behalf of others,” says BCCLA Board Member Lisa Kerr. “The BCCLA sends its love and respect to her children and the communities she left behind.”

BobbyLee leaves a legacy of three beautiful children. A GoFundMe fundraiser has been created for her children and all funds raised will go directly towards their support and care. Please consider donating whatever is within your means: https://www.gofundme.com/f/for-bobbylees-children

A short film documenting some of BobbyLee’s life and advocacy journey can be viewed here.