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< class="what-entry-title">Down the Rabbit Hole of Police Governance: The Saga of BCCLA’s Street Checks Complaint>
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The BCCLA took on the issue of police street checks in 2018. A police street check is a discretionary police practice where police stop a person in public, question them outside the context of an arrest or detention, and often record their personal information in a database. No provincial or federal statute authorizes street checks in BC, nor are they authorized by common law developed by courts. Data from Abbotsford, Central Saanich, Nelson, New Westminster, Oak Bay, Port Moody, Saanich, Vancouver, and West Vancouver police departments reveal a decade of police street checks in BC targeting Indigenous, Black and racialized communities, with Indigenous women particularly over-represented in all departments’ data. Over 9050 people and 92 organizations, have been demanding an immediate ban on police street checks.

Over the past three years, we have gone deep down the rabbit hole of police governance in Vancouver. Our deeply frustrating experience is a crucial window into the complete institutional failure of police governance bodies, like the Vancouver Police Board, as well as the provincial government who is responsible for ensuring civilian and independent oversight over all police forces operating in the province. We share our experience so people are informed about the number of hurdles we faced, to imagine how much more inaccessible this process would be for the average person, and to understand how deeply ingrained policing culture is and how police governance acts as an appendage to – rather than counter to – the harms of policing.

Making a Policy Complaint

On May 24, 2018, the Vancouver Police Department (VPD) released data on street checks from 2008 to 2017 based on a Freedom of Information request. According to the data, 15% of all street checks conducted were of Indigenous people, despite representing approximately 2% of the population of Vancouver. Furthermore, over 4% of street checks conducted were of Black people, despite representing less than 1% of the population.

The data strongly suggested that street checks are conducted in a racist and discriminatory manner, contrary to the Charter of Rights and Freedoms and B.C.’s Human Rights Code. In June 2018, the BCCLA and UBCIC launched a joint Policy Complaint with the Office of the Police Complaint Commissioner based on the VPD data. The complaint called for an immediate investigation of the significant racial disparity revealed in the VPD’s practice of street checks. The complaint also called for the Vancouver Police Board to initiate an independent study that would analyze the released VPD street check data, the efficacy of street checks as a policing tool, the impact of street checks on Indigenous, Black and racialized people, as well as policy development on the collection of personal information resulting from police checks. A month later and after newly released data, we filed an amendment to our complaint calling for the investigation and study of the over-representation of Indigenous women in VPD police street checks.

Advocating Against Police Self-Investigation

In July 2018, the Vancouver Police Board informed the BCCLA and UBCIC that the VPD would be conducting the investigation into the complaint and that “the Department investigates all Service and Policy complaints.” The VPD brought forward their report “Understanding Street Checks” which contained six recommendations that were adopted by the Vancouver Police Board. One of these recommendations was to “formalize the existing VPD street check standards into policy.”   

The BCCLA and UBCIC wrote to the Vancouver Police Board explaining why, in our view, VPD self-investigation in relation to our street checks complaint is problematic: “[W]e are highly troubled by the lack of independence, and the lack of the appearance of independence, of the VPD’s investigation and reporting on its own practices in this case. Given the public interest in a review of this matter that appears independent and is independent in fact, it is clear to us that the VPD must not be the only body to conduct an investigation in relation to this Complaint.”

Challenging an External Review Run by Former Police Officer

The Vancouver Police Board then hired Pyxis Consulting, run by a former Edmonton police superintendent, to conduct an external review of police street checks in Vancouver. The Pyxis-authored Vancouver Police Board Street Check Review Report was released to the public in February 2020. The Vancouver Police Board accepted the findings of the Report, which concluded, “the available data and information could neither confirm nor deny police racism.”

The BCCLA, UBCIC, and Black Lives Matter-Vancouver issued a statement expressing strong concerns with the methodology and findings of the Pyxis-authored Street Check Review Report. The report assumed and concluded that street checks are valuable and non-discriminatory, despite the lack of any evidence in the review to support the claim. The review itself provided clear evidence that police are arbitrarily stopping people without lawful authority, including people who were “walking in the rain,” “walking a dog on a church lawn,” “standing on a street corner,” or simply “a clean couple in a poor hotel.” The review also referenced the use of police street checks to document and collect information about the whereabouts of individuals “known” to police outside of an active investigation. This is not a legally justifiable reason to stop and question an individual and collect or record their personal information. It also suggests that over-policing and pretext policing are occurring.

In January 2020, despite our concerns, the Vancouver Police Board concluded BCCLA’s and UBICIC’s policy complaint, citing recommendations from the Pyxis-authored Street Check Review Report and a new VPD street check policy.

The BCCLA and UBCIC asserted that there were serious problems with both the Pyxis Report and the new VPD street check policy, and then asked the Office of the Police Complaints Commissioner to review the Vancouver Police Board’s decision. We argued that the Vancouver Police Board relied on the Pyxis-authored Vancouver Police Board Street Check Review Report’s recommendations, VPD’s implementation of a purportedly compliant street check policy, and its continued oversight function to monitor the annual audit of street check data as reasons for concluding the complaint. We argued that these actions were insufficient and did not get at the core of our original policy complaint.

Exposé of Disturbing VPD Conduct during Street Checks Review

In response to our request that the Office of the Police Complaints Commissioner review the Vancouver Police Board’s decision to conclude our complaint, the BCCLA and UBCIC received two shocking letters from Police Complaint Commissioner Clayton Pecknold.

In June 2020, Commissioner Pecknold revealed to us that a Vancouver Police Professional Standards (VPD-PSS) investigation was ordered into disturbing and inappropriate conduct and comments about racialized and vulnerable people by two VPD officers. Pyxis contractors, while conducting research for the Vancouver Police Board Street Check Review Report, witnessed these two officers. Pyxis researchers stated that during two separate VPD ride-along excursions, one officer made a number of “inappropriate, racially insensitive comments” and another made “inappropriate comments about vulnerable and marginalized people, had anger issues, and was overly terse and extremely rude to a member of the public.” One of the Pyxis researchers self-identified as a member of a racialized community. The Commissioner asserted that if the conduct was substantiated, it would constitute misconduct.

Even more shocking, these allegations were included in a draft of the Pyxis-authored Vancouver Police Board Street Check Review, but were missing from the final public report; the report that the Vancouver Police Board had accepted. It was deeply troubling to us that this extremely relevant section — detailing racist and inappropriate comments and conduct by VPD officers even as they were under observation — had been removed. The deleted paragraph was directly relevant to the Pyxis Street Check Review Report and were at the very core of the concerns in BCCLA and UBCIC’s original policy complaint.

In July 2020, Commissioner Pecknold issued a follow-up letter outlining the conclusion of the investigation. VPD-PSS interviewed VPD officers and Police Board members and attempted to interview eight Pyxis researchers. All Pyxis researchers declined to be interviewed or provide documentation and claimed that all field notes had been destroyed. As a result, a Notice of Discontinuance was issued since the investigator was unable to identify the two VPD officers. It was unbelievable to us that two VPD officers, who were part of two out of twelve VPD ride-along excursions as part of a formal street check review, could not be identified or held accountable.

The BCCLA and UBCIC wrote to the Vancouver Police Board requesting further information regarding the deletion of this information about VPD officer conduct from the final Pyxis-authored Vancouver Police Board Street Check Review Report.

Shocking Revelations of VPD Interference in External Review of Street Checks

In November 2020, we found out—through media reports and not the Vancouver Police Board—how the relevant paragraph about VPD officers’ racist and inappropriate conduct and comments came to be censored from the final report of the Pyxis-authored Vancouver Police Board Street Check Review.

We found out that the Vancouver Police Board Street Checks Review Committee had released an interim draft of the Street Check Review report to the VPD. Deputy Chief Howard Chow then had “lengthy discussions” with a Pyxis researcher about the section in question, and Chow spoke to the Vancouver Police Board Street Checks Review Committee about the “variety of reasons” for the removal of the paragraph. This paragraph was subsequently removed from the final public report, and the Vancouver Police Board subcommittee was informed of the significant erasure.

The substance of the deleted paragraph, the involvement of at least one senior VPD officer in discussions regarding editing out a paragraph relating to officers’ racist and inappropriate comments, as well as the discrepancy in the draft and final report versions all raised alarming concerns about the objectivity, methodology, and findings of the Pyxis-authored Vancouver Police Board Street Check Review. We were also shocked that the Vancouver Police Board’s vice-chairman, Barj Dhahan, told media “I don’t see anything wrong” with the chain of events and didn’t think the publicly funded Vancouver Police Board Street Check Review was compromised.

Provincial ‘Review of the Review’

In December 2020, the provincial Director of Police Services appointed David Loukidelis, BC’s former Privacy Commissioner, to conduct a review under section 42 of the Police Act. The review is currently investigating the Vancouver Police Board’s response to BCCLA and UBCIC’s original complaint, the Vancouver Police Board’s role in complaints generally, and the Vancouver Police Board Board’s level of independence from the VPD. The provincial Director of Police Services also initiated a second study pursuant to conduct an analysis of the processes employed by the Vancouver Police Board to conduct the Street Checks Review, including the selection and retention of the contractor, Pyxis. These investigations have just been completed and we are eagerly awaiting the public findings.

In February 2021, the BCCLA and UBCIC again wrote to the Vancouver Police Board. We highlighted the public trust at stake in light of the information about the deleted paragraph that contained information that is directly relevant to the nature of the Pyxis-authored Vancouver Police Board Street Checks Review report. We called on the Vancouver Police Board to review its prior decision to accept the findings of the Pyxis-authored Vancouver Police Board Street Checks Review report, and to re-assess its decision to conclude our original street checks complaint.

Conclusion

Our three-year saga into the rabbit hole of police governance sheds a critical light on the failures of police board governance and raises serious concerns about the Vancouver Police Board’s lack of independence from the VPD. The actions of the Vancouver Police Board violated their obligation to provide impartial civilian oversight of the Vancouver Police Department and to govern with independence, integrity, and be accountable to the community. Indeed, what has happened with the Vancouver Police Board Street Check Review forces a reckoning about the power of police, even over those governance bodies tasked with holding them accountable.

< class="what-entry-title">Letter from the Board President to the Community>
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Words matter. Context matters. The British Columbia Civil Liberties Association supports the cherished right to free expression, and as an organization we want our messages to be clear. A tweet by our executive director on her personal account failed in that regard.

Using a particular turn of phrase in that context left some people with the wrong impression about the values and principles to which we adhere.

We regret the misunderstanding that was caused by the tweet and apologize for the harm the words caused.

Further, we acknowledge the anger, frustration, and sadness many people feel after the confirmation of over 1000 unmarked graves of Indigenous children at various residential school sites. We share those emotions and share in the desire to dismantle the colonial systems that commit genocide.

During the aftermath of the tweet, we encountered a wave of hateful commentary, fueled by the fact that our executive director is a racialized woman leader. Our executive director and staff were exposed to inexcusable racism and misogyny and threats to physical and mental safety. We did not engage with those voices and are prioritizing the health and safety of staff. We have also taken time to gather feedback within our organization and with our community partners. These events have been difficult, but we are emerging stronger and more committed to our work. We are back with the same fearless truth-telling that our supporters and detractors know us for.

Our mandate is to promote, defend, sustain, and extend civil liberties and human rights for all. Those rights and liberties include the security of the person, freedom of religion and freedom of expression. As a legal organization, we work within the law to advance this mandate.

The BCCLA also recognizes that, despite the inherent and inalienable rights of Indigenous peoples, and the recognition of those rights within the Canadian Constitution, the colonial legal system in which we work continues to deprive Indigenous peoples of their lands, freedoms, rights, autonomy and dignity. We affirm that Indigenous laws and the inalienable right to self-determination continue despite the Crown and the federal and provincial governments’ attempts to suppress them.

The BCCLA is committed to the full realization of the rights of Indigenous peoples, and to the pursuit of a just, equitable and durable reconciliation between Indigenous Nations and the Canadian state. The BCCLA is committed to upholding its promise to the Truth and Reconciliation Commission of Canada and Calls to Action.

The BCCLA often takes controversial positions in defence of civil liberties. We remain resolute in our conviction that our work can never be challenged as partisan.

It is with these essential values that we have evolved and achieved great progress over six decades in the defence of civil liberties and human rights in Canada, and with which we will continue to do this work for decades to come.

We recognize the importance of communicating these values clearly and without compromise.

< class="what-entry-title">Announcement from the BCCLA Board of Directors>
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It is with heavy hearts that the Board of Directors of the British Columbia Civil Liberties Association (BCCLA) has accepted the resignation of our executive director, Harsha Walia. The Board and Staff thank her for her bold, skillful, and compassionate leadership during the extremely challenging times of the pandemic. Harsha built and deepened important relationships with BCCLA’s partners and community stakeholders. She worked with integrity to strengthen our policy positions especially on policing, Indigenous self-determination, and immigration. Harsha is responsible for significant improvements to the structural integrity of the organization including financial stewardship, HR, and advancing our strategic plan. Throughout her leadership, she demonstrated a deep commitment to civil liberties and human rights and furthered our work on equity, diversity, and inclusion. Her leadership, vision, and relationships with staff, board members and community partners will be deeply missed.

< class="what-entry-title">Thank you to our Communications and Development Volunteers!>
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Join us in saying thank you to Tomila and Alexandra who have been supporting us in virtual engagement, outreach, and event planning over the last few months. We are sad to see them go but excited to see what they do next! Learn more about them below. 


Tomila Sahbaei

Tomila is currently in her third year at the University of British Columbia Vancouver. She is pursuing a Bachelor of Arts with a major in Political Science and a minor in English Literature. She has focused her studies on comparative politics, with a particular interest in the way different countries have undergone democratization. She is passionate about her community, academics, literature, and having an impact on the world around her.

Tomila is looking forward to her time with the BCCLA. She hopes to use her creativity and her past work experience to help the team continue their meaningful work in the community. In her free time, you can find Tomila skiing or snowboarding, as she thoroughly enjoys winter sports. She also loves to read and spend time trying to find stars and planets through her telescope.

Alexandra Calbery

Alexandra holds a Bachelor of Arts from Simon Fraser University with majors in Political Science and French. She is currently in her last semester at Douglas College, completing an Associate of Arts in Economics. She is passionate about public policy and the transformative potential of law in creating systemic change.

She also volunteers with the Urban Native Youth Association as a youth mentor. Her experience supporting and growing alongside her mentee has deepened her knowledge of the injustices that Indigenous youth face and has played an important role in her decision to pursue a career in law.

Alexandra enjoys walking and running in nature whenever she has the opportunity, and has participated in the Scotiabank 5K and Eastside 10K in support of the Downtown Eastside Women’s Centre several times. She hopes to continue her charitable running this year by participating virtually. Alexandra is honoured to join the BCCLA team and learn from such a dedicated group of people.

< class="what-entry-title">Announcing our 2020 Liberty Awards Winners>
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The Liberty Awards celebrate exceptional individuals and organizations who have made contributions to advancing civil liberties and human rights in Canada. Winners are selected from a list of nominations made by the BCCLA’s supporters and members of the public.

We’re so pleased to announce the winners of the 2020 Liberty Awards. Ideally, we would have celebrated them and their achievements at our Liberty Awards Gala. However, due to COVID-19, we cancelled our gala last year. We still want to celebrate the people and organizations that our supporters nominated and honour their important work. Please join us in congratulating the winners of the 2020 Liberty Awards!

Reg Robson Award

Mary Ellen Turpel-Lafond

Dr. Mary Ellen Turpel-Lafond, Aki-kwe, is the Academic Director of the Indian Residential School History and Dialogue Centre (IRSHDC) at UBC. She is a Canadian lawyer, former judge, legislative advocate for children’s rights and a professor at UBC’s Allard School of Law. She holds a law degree from Osgoode Hall at York University, a master’s degree in international law from the University of Cambridge, and a doctorate of law from Harvard Law School. As a member of the Muskeg Lake Cree Nation, Aki-kwe was the first Treaty Indian to be named to the judicial bench in Saskatchewan. She has served as a Representative for Children and Youth for BC, and continues to draft legislation, provide legal advice and speak to all levels of government.

Excellence in Legal Advocacy – Group

Migrant Workers Centre

Migrant Workers Centre (MWC) is a non-profit organization dedicated to legal advocacy for migrant workers in BC. MWC facilitates access to justice for migrant workers through the provision of free legal advice and representation. Each year, the organization provides legal services in over 2,200 immigration and employment-related matters. Their members and clients are migrant and undocumented workers working in low-wage jobs in the child care, home support, restaurant, hospitality, construction, agricultural, and manufacturing industries. Currently, the organization is advocating for pathways to permanent residence for all essential workers, including undocumented workers.   

Excellence in Legal Advocacy – Individual

Alison Latimer

Alison Latimer has a litigation practice at both the trial and appellate level with an emphasis on public law and in particular constitutional, administrative law and criminal law. She has been counsel on a number of landmark cases including cases establishing a constitutional right to physician assisted death and a constitutional limit to the use of solitary confinement. 

Excellence in Youth and Community Activism

Bashir Mohamed

Bashir Mohamed is an Edmonton based writer focused on researching Alberta’s history of discrimination. He has previously researched carding data in Edmonton, the Edmonton SRO program, and the history of the Ku Klux Klan in Alberta. He is an avid cyclist and enjoys being by the water. 

Excellence in the Arts

Kent Monkman

Kent Monkman is an interdisciplinary Cree visual artist. A member of Fisher River Cree Nation in Treaty 5 Territory (Manitoba), he lives and works in Dish With One Spoon Territory (Toronto, Canada). Known for his provocative interventions into Western European and American art history, Monkman explores themes of colonization, sexuality, loss, and resilience—the complexities of historic and contemporary Indigenous experiences—across painting, film/video, performance, and installation. Monkman’s gender-fluid alter ego Miss Chief Eagle Testickle often appears in his work as a time-traveling, shape-shifting, supernatural being who reverses the colonial gaze to challenge received notions of history and Indigenous peoples.

Excellence in Journalism 

Ben Makuch

From interviewing ISIS members to being on the ground during a political assassination in Russia, for nearly a decade Ben Makuch has been covering national security issues all over the world. Makuch hosted the hit TV show Cyberwar on Hulu and VICEtv, an investigative documentary series examining the covert world of signals intelligence and hackers. He has since worked on the Emmy-award winning show VICE News Tonight on HBO, and Fringe Nation on VICEtv. Currently, Makuch has been covering the rise of domestic terrorism in the U.S. and exposing the inner workings of neo-Nazi terrorist groups. 

< class="what-entry-title">Challenging Anti-Asian Racism at the Cullen Commission>
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Person among crowd in sunglasses and a white face mask holding a black and white sign that says "#Stop Asian Hate" with a drawn fist. Two blurred people are at the foreground of image, one in black shirt.
Credit: Jason Leung

Anti-Asian racism has played a significant role in public discourse about money laundering in British Columbia. There is a disproportionate focus on money from China in news stories about money laundering and a strong tendency to conflate foreign money with dirty money. Consider, for example, the following statements from witnesses who appeared at the Cullen Commission of Inquiry into Money Laundering in British Columbia:

“A glimpse into Chinese money laundering helps us understand the struggles within an authoritarian state awash with cash, and how it dumps some of its problems on countries like Canada.”[1]

“China is an authoritarian state that has lots of issues with corruption. Is the money coming into Vancouver the kind we want to be encouraging? And are we doing everything we can to make sure we leverage this investment to benefit British Columbians as much as possible? Or is this just benefiting the super-car dealerships on Burrard Street?”[2]

Some have argued that many of BC’s challenges, from unaffordable housing[3] to the overdose crisis, are caused by Chinese money laundering. The BCCLA is challenging this narrative at the Cullen Commission.    

At the hearings, we questioned witnesses and obtained evidence on two important issues. First, contrary to popular belief, foreign investment is not a major factor driving BC’s skyrocketing housing prices.[4] Second, rather than targeting money laundering and foreign ownership, the government should focus on providing subsidized housing. This is what would actually support British Columbians living in poverty and experiencing homelessness.[5]

In February 2021, Professor Henry Yu testified at the Cullen Commission and provided critical insight into how anti-Asian racism, white supremacy, and Canada’s immigration laws have shaped our conversations about “dirty money”. Professor Yu pointed out the irony of BC’s obsession with Chinese money laundering, given that the province is located on stolen Indigenous land.[6] In response to questions from the BCCLA, he provided evidence on how Asian people were historically excluded from BC’s real estate market and the real-life impacts of anti-Asian racism in public discourse about money laundering.[7] As Professor Yu explained, one of the consequences of frequent news stories about Chinese money laundering “is that we begin to see a set of people as a problem” [8], which is a slippery slope.[9]  

Following the conclusion of Professor Yu’s evidence, Commissioner Cullen said:

I think your evidence … has been very helpful in reminding us that some of the evidence that we have heard in the course of our hearings may play into racial or ethnic stereotypes instead of simply allowing us to make a careful analysis of complex issues… And I think for that I am grateful to you for your evidence.[10]

Image of elder on a bench with a blue face mask an pink bucket hat. They are holding a sign and yellow rose. The has a drawing of a three people, with flowers surrounding them, and other drawings of people in community helping each other. The sign says "Love our People, Heal our Community." They are wearing a purple jacket, with blue gloves.
Credit: Jason Leung

In April 2021, the BCCLA questioned Attorney General David Eby at the Cullen Commission about his role in a controversial study on foreign ownership. The study concluded that 66% of detached homes in Vancouver’s west side purchased in a six-month period were bought by Mainland China buyers. However, the study did not look at the citizenship or residency status of the buyers, but rather at whether they had non-anglicized Chinese names. Of course, you cannot tell someone’s citizenship or residency status from their name alone. In the course of questioning by the BCCLA, Minister Eby apologized for his participation in this study and its impact on the Chinese community.[11] He also agreed that broad statements he had made in the past about Chinese investment in Vancouver had helped perpetuate a harmful narrative that implies that foreign money is dirty money.[12]

The Cullen Commission hearings will end in July 2021. Until then, the BCCLA will continue to fight against racism and for equality at this public inquiry. 


Read more:

Notes

[1] Arthur Cockfield, “The High Price of Chinese Money Laundering”, The Globe and Mail (February 8, 2019) <https://www.theglobeandmail.com/opinion/article-the-high-price-of-chinese-money-laundering-in-canada/>; see also Cullen Commission Transcript – April 9, 2021, p. 171.  

[2] Minister David Eby quoted in Sam Cooper, “Vancouver real estate a buyers’ market — for mainland China: study” Times Colonist (November 2, 2015) <https://www.timescolonist.com/news/b-c/vancouver-real-estate-a-buyers-market-for-mainland-china-study-1.2101326>; see also Cullen Commission Transcript – April 26, 2021, p. 186.  

[3] Cullen Commission Transcript – February 18, 2021, pp. 98, 115-116, 133-138.

[4] Cullen Commission Transcript – February 17, 2021, pp. 180-186; Cullen Commission Transcript – February 18, 2021, pp. 44-46.

[5] Cullen Commission Transcript – February 18, 2021, pp. 124-126, 153-155.

[6] Cullen Commission Transcript – February 19, 2021, pp. 30, 99-100.

[7] Cullen Commission Transcript – February 19, 2021, pp. 117-129.

[8] Cullen Commission Transcript – February 19, 2021, p. 123.

[9] Cullen Commission Transcript – February 19, 2021, p. 125.

[10] Cullen Commission Transcript – February 19, 2021, p. 130.

[11] The Georgia Straight reported on this apology and the BCCLA’s cross-examination here: https://www.straight.com/news/attorney-general-david-eby-expresses-regret-over-his-role-in-2015-study-on-non-anglicized-names.

[12] Cullen Commission Transcript – April 26, 2021, pp. 181-189. 

< class="what-entry-title">Bill C-15 & Implementing UNDRIP: What should this mean for the First Nations, Inuit and the Métis in relationship to Canada?>
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The answer to that question ultimately lies with the First Nations, Inuit, and Métis rights holders. However, the government of Canada is once again debating the application of United Nations Declaration of the Rights of Indigenous Peoples’ (UNDRIP) in Canada, a nation state that would not exist but for genocide and the theft and occupation of Indigenous lands.

On December 3, 2020, Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (“Bill C-15”) was introduced in the House of Commons by the Minister of Justice, David Lametti. Bill C-15 is an attempt to establish a process for the domestic implementation of UNDRIP. The rights and principles affirmed in UNDRIP constitute the minimum standards for the survival, dignity, and well-being of Indigenous peoples of the world. It affirms Indigenous peoples’ right of self-determination and underlines the prohibition of discrimination and genocide in international law.

History of UNDRIP

For more than 20 years, Indigenous peoples worked directly with states to elaborate upon and advance their collective and individual human rights. The resulting UNDRIP, was overwhelmingly adopted by the UN General Assembly on September 13, 2007. At that time, Canada, the United States, Australia and New Zealand voted against its adoption.

UNDRIP calls upon states to honour and respect the Treaties and other agreements they have entered into with Indigenous peoples and to respect and uphold Indigenous peoples’ rights and relationships to lands, territories and resources. In 2009, Bolivia blazed the trail by becoming the first country to implement UNDRIP into its constitution. In 2016, Canada shed its objector status and became a “full supporter, without qualification.” It also committed to fully adopt and implement UNDRIP as the framework for reconciliation. This only happened after recommendations from the Truth and Reconciliation Commission of Canada and the National Inquiry into Murdered and Missing Indigenous Women and Girls, Calls for Justice.

The groundwork for Bill C-15 was previously laid out in Bill C-262 by former NDP MP Romeo Saganash, which was his second attempt in seeking to ensure the laws of Canada align with UNDRIP. Bill C-262 died on the order paper after it was blocked by the Senate in 2019.

During the second reading of Bill C-15, Minister Lametti stated, “Bill C-15 and our endorsement of [UNDRIP] are intended to renew and strengthen the relationship between the Crown and Indigenous peoples, a relationship based on recognition, rights, respect, cooperation, partnership and reconciliation.”[i] With that said, Bill C-15 is not intended to change Canadian law immediately. Rather, it is an attempt to establish a process that could make federal laws and policies consistent with UNDRIP.[ii]

Is Canada ready for the transformative change that UNDRIP requires?

Despite the hard work and perseverance of Indigenous peoples to bring about what became UNDRIP, Canada continues to violate Indigenous rights and break its promises to Indigenous peoples.  As a result, Bill C-15 has been met with mixed reactions.

Proponents of Bill C-15 welcome it as an opportunity for Canada to finally meet its implementation obligations. They also note that Indigenous peoples’ governments and organizations, including the Assembly of First Nations among others, are proposing or supporting amendments to clarify and strengthen Bill C-15. These supporters of the Bill hope to see it adopted before the end of the current session of Parliament.

Ellen Gabriel, Mohawk activist and artist who is well known and respected for her role as spokesperson during the Kanehsatà:ke Resistance,recently stated that as piece of government legislation, Bill C-15 deserves skepticism but strongly feels that “its passage into law would represent the best chance we’ve seen in a very long time to actually break with colonial status quo.”

Critics of Bill C-15 question its integrity, its impact beyond mere window dressing, and view it as a potential threat to Indigenous sovereignty and self-determination. Critics have also condemned Canada for not adequately consulting with First Nations during the drafting stage and question the Honour of the Crown.

The Association of Iroquois and Allied Indians stated, “Canada has not adequately engaged with Indigenous Peoples…They have not reached out or made enough of an effort, to talk with the rights holders themselves or the communities. Meetings were capped, time was restricted, and engagement periods were not extended to make proper use of the time and information.”

The Defenders of the Land, Truth Campaign and Idle No More, think Bill C-15 is deeply flawed and must be rejected. They note that:

Image Credit: Jason Hargrove

“[T]here is nothing in Bill C-15 that indicates that the actions of Canada under this Bill will be subject to international review by the United Nations. If the government of Canada wants to give the appearance of meeting minimum standards, then there needs to be an external body to monitor its actions because Canada continues to show it cannot be trusted to monitor and report on itself.”

The Confederacy of Treaty Six First Nations agree that Bill C-15 is flawed and claim that Canada is taking advantage of the role to bring honour to the Crown. “Rather than considering the actions of the state in relation to our rights, the government of Canada has made decisions that will affect our rights and the treaty relationship.” Similarly, Treaty 8 Grand Chief, Arthur Noskey, expressed concerns about Canada’s failure to adequately consult and negotiate with First Nations about Bill C-15.

Kitchenuhmaykoosib Inninuwug, a First Nation in northwestern Ontario, oppose Bill C-15 because it relies on a false and racist premise that Canada has ownership over the land and has the authority to grant title rights to the land. As well, it noted that Bill C-15 does not expressly repudiate the doctrine of discovery.

British Columbia’s Example

Bill C-15, if passed, would not prevent provinces or territories from developing their own plans or approaches for implementation of UNDRIP.[iii] Indeed, BC was the first Canadian jurisdiction to pass legislation to align its laws with UNDRIP. On November 28, 2019, the Declaration of the Rights of Indigenous Peoples Act (DRIPA) became law. During a recent presentation to the Standing Committee on Indigenous and Norther Affairs (INAN), Dr. Mary-Ellen Turpel-Lafond on behalf of the Assembly of First Nations, referred to the BC context to show how implementing UNDRIP can have a positive impact on the relationship between industry and First Nations. In particular, with respect to Free Prior and Informed Consent (FPIC), Turpel-Lafond pointed to an unprecedented number of mining permits that went forward with the support of First Nations.

On the other hand Indigenous land defenders continue to face colonial forces that repeatedly violate and deny their inherent rights, including their right to protect their lands and oppose resource extraction and development on their unceded territories. As well, urban Indigenous peoples experiencing homelessness continue to face displacement by the state on their own homelands.

Image Credit: “Tiny House Warriors” by More Bike Lanes Please

In December 2019, the United Nations Committee on the Elimination of Racial Discrimination (CERD) responded to urgent reports filed by the Wet’suwet’en, Secwepmec, and Dunne-za and Cree groups facing immediate threat from resource extraction and development on their lands. CERD called upon Canada to immediately suspend construction on, respectively, the Coastal Gaslink pipeline, Trans Mountain pipeline, and the Site C damn until the free, prior and informed consent of the people could be obtained. Canada, true to its form, did not oblige. In January 2021, CERD rebuked Canada for failing to comply with international human rights law. CERD observed that Canada is misinterpreting free, prior and informed consent by focusing on a process, but not a particular result.

Impact on the #LandBack Movement

Bill C-15 was introduced shortly after Indigenous grassroots people on the frontlines put out a nationwide call for solidarity actions to protest development on their territories. This call is a part of the #LandBack movement that has been gaining traction across the country. #LandBack exposes and widens the cracks in Canada’s foundation. As a result, land defenders routinely face harassment and criminalization.

The BCCLA remains firm on its stance that Canada must end the harassment and criminalization of Indigenous land defenders.

Proposed Amendments

After reviewing the first draft of the Bill, the BCCLA was in agreement with the need for improvement and greater accountability on the part of Canada.  Bill C-15 was recently studied by the INAN committee. A number of witnesses participated in this process to voice their concerns and suggested amendments. The Assembly of First Nations (AFN) suggested 12 improvements during its recent presentation to the Standing Committee on Indigenous and Northern Affairs. Aboriginal law firm, OKT, has also proposed several suggestions for improvements in its review and analysis of the Bill.  In its committee report, INAN incorporated some of AFN’s suggestions including adding the words “racism” and “systemic racism” and expressly mentioning the “doctrine of discovery”.

Read Bill C-15 as amended here.

Conclusion

The BCCLA sees that on a global scale Indigenous peoples continue to face dispossession of their lands and resources, settler-colonial violence, discrimination, forced assimilation and other grave human rights abuses.  The BCCLA would like to reiterate[iv] that we affirm the right of Indigenous peoples to be free and to choose how they want to live their lives – including the right to live according to one’s own culture and values. We stand against the unjust coercion of Indigenous peoples by the Canadian state. We stand in opposition to government action that unjustly takes away the right of Indigenous peoples to determine and shape their own future.

As Bill C-15 makes its way through the Senate, we pledge our continued vigilance and commitment to promoting and supporting Indigenous self-determination.

Learn more:


Notes

[i] “Bill C-15, An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples”, 2nd reading, House of Commons Debates, 43-2, No 060 (17 February 2021) at 1805 (Hon David Lametti) online: Our Commons <www.ourcommons.ca/DocumentViewer/en/43-2/house/sitting-60/hansard>

[ii] Backgrounder: Bill C-15 – United Nations Declaration on the Rights of Indigenous Peoples Act (2020), online (pdf): Government of Canada <www.justice.gc.ca/eng/declaration/about-apropos.html>.

[iii] Ibid.

[iv] “The Journey of Reconciliation: Issuing our Statement of Reconciliation at Canada’s TRC” (21 September 2013), online: BC Civil Liberties Association <bccla.org/2013/09/the-journey-of-reconciliation-issuing-our-statement-of-reconciliation-at-canadas-trc/>.

< class="what-entry-title">Proposed property seizure law erodes civil rights>
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Imagine a future in which the government can force you to explain how you obtained any piece of property you own, without needing to show any link to criminal activity.

That’s exactly what “unexplained wealth orders” could do, allowing the provincial government to confiscate property without finding any link to crime.

It’s a disturbing notion that does away with the presumption of innocence and would subvert the rights that shield Canadians from unreasonable search and seizure.

The government has proposed that unexplained wealth orders (UWOs) should be adopted as law in British Columbia, and the Cullen Commission of Inquiry into Money Laundering in BC is considering whether UWOs would help address money laundering in the province. The BCCLA is at participant at the inquiry and is vigorously opposing the proposal.

What are UWOs?

UWOs would give the province the power to seize wealth that appears to be beyond a person’s financial means, unless that person can provide an adequate explanation of where the wealth came from. UWOs would be intended to target the proceeds of crime. However, UWOs may not require the target of the order be convicted of a crime, or even be suspected of a crime.

There are already laws on the books to ensure that criminals, and even suspected criminals, do not get to keep the proceeds of their criminal conduct. The Criminal Code allows the seizure of proceeds of crime after a criminal conviction. The BC Civil Forfeiture Act goes further, giving the province broad powers to seize property suspected of having been used to commit an illegal act or acquired by committing an illegal act.

The BCCLA believes that UWOs are an unnecessary expansion of government power and an unacceptable infringement of Canadians’ rights to the presumption of innocence, due process, and privacy. They have no place in Canadian law.

Criminal forfeiture

You have likely seen pictures of police standing in front of a table heaped with money, drugs, and weapons following a high-profile arrest. The Criminal Code and other federal criminal laws allow the government to seize the proceeds of crime, typically after a criminal conviction.[1]

Before the government can seize the proceeds of a crime, the owner of the property usually must be convicted of that crime. To get a conviction, the prosecution must prove that the accused person is guilty beyond a reasonable doubt.

There are two pieces of this requirement: the standard of proof required (beyond a reasonable doubt) and who must prove it (the prosecution). The “beyond a reasonable doubt” standard is exceptionally high. The Supreme Court of Canada has said this standard is “much closer to absolute certainty than to proof on a balance of probabilities.”[2] The prosecution has the responsibility to prove its case because we presume innocence until there is proof of guilt. This is a high bar for the prosecution to meet, but it is necessary to minimize the risk of convicting an innocent person or seizing their property.

Civil forfeiture and administrative forfeiture in British Columbia

In 2006, the BC Civil Forfeiture Act (CFA) created the Civil Forfeiture Office, tasked with seizing property suspected to be the proceeds of unlawful activities. The CFA made seizure much easier for the government by allowing it to seize property without a criminal conviction.

Under the CFA, if the Director of Civil Forfeiture suspects that property was obtained from an illegal act or used to commit that act, they can file a claim in the BC Supreme Court identifying the property, its owners, and the suspected unlawful acts. If the Director proves it is more likely than not that the property was used to commit or is the result of unlawful activity, the court generally must order the property forfeited.

The CFA also allows the court to make presumptions about property and its use if certain conditions are met. For example, if drugs or a gun are found in a car, the car is presumed to be an instrument of unlawful activity. Cash over $10,000 “bundled or packaged in a manner not consistent with standard banking practices” or found “in proximity to” drugs is presumed to be the proceeds of unlawful activity.[3]

In 2011, the Director got a new tool: administrative forfeiture, which allows the Director to make a forfeiture claim for property worth under $75,000 by simply providing notice of the claim to the owner. If the owner doesn’t challenge the claim in time, the property is forfeited.

Civil forfeiture has become common in British Columbia. The number of referrals to the Civil Forfeiture Office has increased every year since 2006, from only 72 in 2007 to 1128 in 2019. In 2019, over $13 million in cash and property was seized through civil and administrative forfeiture.[4] In 2019, the CBC revealed the kinds of property seized in administrative forfeiture:

[T]he province made 913 administrative forfeiture claims last year, amounting to $3.36 million in cash, 288 vehicles, 501 cellphones, 56 computers and a slew of other items including electronics, jewelry and a Wayne Gretzky rookie card.[5]

The presumption of guilt created by civil forfeiture has led to innocent people losing property because of their ties to friends, partners, or family members who are allegedly involved in criminal activity.[6] The BCCLA has expressed serious concerns about civil forfeiture and administrative forfeiture for many years. We view them as a punishment for alleged unlawful conduct without a criminal conviction or due process. The presumption of innocence is a core value under the Charter of Rights and Freedoms, but civil forfeiture creates a presumption of guilt.

The expansion of BC’s civil forfeiture regime has also raised significant access to justice concerns. Despite the growing number of seizures, challenges to civil forfeiture and administrative forfeiture claims are rare.[7] Hiring a lawyer to challenge forfeiture can be prohibitively expensive, especially for someone whose assets have been seized. The financial barrier to challenging administrative forfeiture is even greater, as the value of the property seized is often not enough to justify the cost of hiring a lawyer. Further, legal aid is not available for civil forfeiture claims in BC.

There is no evidence that civil forfeiture is effective in deterring money laundering and illegal activity, but the province continues to rely on it heavily. This could be because civil forfeiture enables a “tough on crime” message without adding to the provincial budget. The Civil Forfeiture Office is self-funded, meaning its budget comes from the money it seizes on an annual basis instead of tax dollars. Researchers have shown that self-funding models can create perverse incentives for public authorities to use civil forfeiture laws to benefit their bottom lines rather than to combat crime.[8]

The BCCLA is concerned that civil forfeiture may have a disproportionate impact on poor and marginalized communities in BC. Significant research in the United States has shown that “low-income individuals and communities of color are hit hardest” by civil forfeiture programs.[9] The Cullen Commission heard evidence that there is a worrying lack of research on the impact of civil forfeiture on poor and racialized communities in Canada.[10]

Unexplained wealth orders (UWOs)

The Cullen Commission is considering expanding the already expansive powers of civil forfeiture by recommending the adoption of unexplained wealth orders.

 “Unexplained wealth orders raise profound civil liberties implications. They erode privacy rights, undermine the presumption of innocence, and subvert the rights that shield people from unreasonable search and seizure.” – Jessica Magonet, BCCLA Staff Counsel

There are a number of models for UWOs in other countries. However, they generally allow property to be seized without a criminal conviction and put the burden on the owner to prove their wealth was acquired by legitimate means. In some jurisdictions, UWOs do not require suspicion of criminal activity—the appearance of too much wealth is enough. Further, UWOs may not only apply to wealthy people. In some jurisdictions, there is no financial threshold for issuing a UWO.

The BCCLA has several concerns with UWOs: they are contrary to the presumption of innocence, deny due process, violate protections against unreasonable search and seizure, compel self-incrimination, and encourage surveillance of financial activity. Furthermore, there is no evidence that UWOs are effective at addressing money laundering.

Presumption of Innocence and Due Process

Like civil forfeiture, UWOs in other jurisdictions have a lower standard of proof than the “beyond a reasonable doubt” standard required in criminal law. But unlike civil forfeiture, they also reverse the burden of proof, requiring the property owner to show it is more likely than not that their property was acquired legally. A property owner who does not answer the UWO with a satisfactory explanation is presumed guilty of something nefarious and loses their property. UWOs create a presumption of guilt instead of protecting the presumption of innocence.

Self-incrimination

The Charter of Rights and Freedoms gives Canadians the right to not be compelled to provide evidence that will incriminate themselves. However, evidence is only considered “incriminating” if it is later used to prove a part of an offence in a criminal trial.[11] The state could use UWOs to coerce people into providing evidence that could be used against them in further investigations or criminal proceedings. Forcing people to choose between defending their property and not incriminating themselves is a violation of Charter principles.

Privacy and surveillance

The agency responsible for issuing UWOs requires information about the financial resources of the people it targets. It is not clear where that information would come from, but it would likely require police referrals, data sharing between government agencies, or increased financial surveillance. Canadian courts and privacy commissioners have routinely held that financial information is highly sensitive and deserves the highest levels of protection. How we spend our money can reveal a great deal about our political opinions, religious beliefs, sexuality, health, relationships, and interests. We should not allow undue sharing or surveillance of Canadians’ financial activity, especially to justify forfeiture claims.

Ineffectiveness

The concerns with UWOs discussed above should be enough to make the BC government think twice about introducing UWOs in the province. Yet, there is an even more pressing concern: there is no evidence that UWOs actually reduce money laundering or illegal behaviour.

Several witnesses at the Cullen Commission said that there is a lack of empirical evidence of the effectiveness of UWOs in fighting crime and money laundering. The BC government should not consider such a draconian, rights-infringing measure without first providing empirical evidence that it will help achieve its goals.

Whether or not the Cullen Commission recommends that the province introduce unexplained wealth orders in BC, we already know one thing—there is no way for UWOs to coexist with Charter values.

The province and federal government already have expansive powers to seize the proceeds of illegal activity or property used to break the law. These powers already threaten rights to the presumption of innocence and due process, and the examples above show how they can impact people who are caught up in their reach. We do not need to expand the power to seize property with unexplained wealth orders.

The BCCLA will continue to stand against unexplained wealth orders at the Cullen Commission. We will watch closely to see what the Commission recommends, and we will be ready to take action if the province moves to introduce UWOs in BC.


Notes:

[1]  See for example Criminal Code, RSC, 1985, c C-46, Part XII.2.

[2] (https://www.canlii.org/en/ca/scc/doc/2000/2000scc40/2000scc40.html R v Starr, 2000 SCC 40 at para 242)

[3]  CFA ss 19.03 and 19.04

[4] Overview Report – Asset Forfeiture in British Columbia https://cullencommission.ca/data/exhibits/373%20-%20Overview%20Report%20-%20Asset%20Forfeiture%20in%20British%20Columbia.pdf p 44-45

[5] https://www.cbc.ca/news/canada/british-columbia/bc-administrative-civil-forfeiture-data-part-one-1.5180022

[6] See ex: https://www.cbc.ca/news/canada/british-columbia/bc-administrative-civil-forfeiture-data-part-two-1.5180210https://www.theglobeandmail.com/news/british-columbia/cash-back-return-of-rare-coins-puts-bc-civil-forfeiture-under-fire/article16566247/

[7] https://cullencommission.ca/data/transcripts/Transcript%20December%2018,%202020.pdf, pages 114-115.

[8]  see: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2617402

[9] https://cdn.americanprogress.org/wp-content/uploads/2016/04/01060039/CivilAssetForfeiture-reportv2.pdf?_ga=2.8223354.977788911.1611620777-1913739743.1611620777 at p 2.

[10] https://cullencommission.ca/data/transcripts/Transcript%20December%2014,%202020.pdf,  pages 151-152

[11]  https://www.canlii.org/en/ca/scc/doc/2012/2012scc59/2012scc59.html R v Nedalcu, 2012 SCC 59 at para 9

< class="what-entry-title">Bill C-22 Aims to Address Systemic Overrepresentation in the Criminal Legal System, but Does it Go Far Enough?>
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Last month, the federal government tabled Bill C-22, proposing several amendments to Canada’s criminal law and drug laws. The bill proposes removing mandatory minimums for all drug offences under the Controlled Drug and Substances Act (CDSA) and for some offences under the Criminal Code of Canada. The bill also expands the use of conditional sentences, and requires police and prosecutors to consider diversion measures and alternatives to criminal charges for simple drug possession offences.

When introducing the bill, Minister of Justice and Attorney General of Canada David Lametti acknowledged the systemic racism in Canada’s criminal legal system and that sentencing policies focused on imprisonment disproportionately affect Indigenous, Black and marginalized people. According to the government’s own statistics, Indigenous and Black people are more likely to be admitted to federal prisons for an offence punishable by a mandatory minimum penalty.

Ending All Mandatory Minimums in the Criminal Code

Bill C-22 is part of the current federal government’s efforts to reverse the tough-on-crime policies of the previous government. Before the Harper government came to power, 24 offences were subject to mandatory minimum sentences but, by 2015, that number had tripled. As a result, the proportion of Indigenous people imprisoned for an offence carrying a mandatory minimum sentence went up from 14 percent to 26 percent in one decade.

While Bill C-22 proposes to repeal about 14 dozen mandatory minimum penalties under the Criminal Code, it retains the rest. Many of the mandatory minimum penalties remaining on the books have already been declared unconstitutional by lower provincial courts Canada. This has created a patch-work regime where the application of a certain mandatory minimum is arbitrarily dependent on the province where an accused resides.

The BCCLA has advocated for mandatory minimums to be abolished for almost two decades. In 2014, we produced a comprehensive report on the harms of mandatory minimums. Mandatory minimums take away the judge’s ability to consider individual and proportionate factors during sentencing, or systemic factors such as the impacts of colonialism when sentencing Indigenous people. This flies in the face of section 718.2(e) of the Criminal Code and the Supreme Court of Canada’s direction in R v Gladue. Furthermore, mandatory minimums do not achieve their stated objective of deterrence and bring Canada closer to becoming a prison society that emphasizes incarceration over rehabilitation. As Michael Tonry’s scholarship in the U.S. details, mandatory minimums actually produce inconsistency and injustice. In R. v Nur, the Supreme Court of Canada concurred, stating that “empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes.”

Indeed, courts in Canada have also been dealing with the constitutionality of mandatory minimums, with over 160 constitutional challenges. The BCCLA intervened in several of these court cases, and we won in each case. We intervened at the Supreme Court of Canada in R v Nur and R v Charles in 2014, cases which led to the highest court striking down the mandatory minimum sentencing for offenses involving firearms. The BCCLA also intervened in R v Lloyd, where the Supreme Court of Canada found that a mandatory minimum sentence for a drug possession offense under the CDSA violated Charter section 12’s prohibition on cruel and unusual treatment or punishment.

The federal government must remove all mandatory minimum penalties from the Criminal Code. While a mandatory minimum of a life sentence for murder might seem reasonable, in fact, systemic barriers to justice means that Indigenous women are most significantly impacted by life sentences. Similarly, battered women who face murder charges for killing their partners in an act of self-defence will often plead guilty to a lesser charge of manslaughter, out of fear of a mandatory minimum sentence for a murder conviction. Prison law expert Kim Pate writes, “Mandatory minimums are often advertised as being ‘tough on crime.’ In reality, they are toughest on those who are already most marginalized and victimized.”

Expanding the Use of Conditional Sentences

One of the most significant aspects of Bill C-22 is the expansion of conditional sentences. Conditional sentences are a non-custodial measure first introduced in 1996 to allow people to serve their sentence in the community instead of in a federal or provincial prison. Bill C-22 repeals a list of offences in the Criminal Code that barred conditional sentences.

The proposed change in Bill C-22 comes on the heels of an important case. In R v Sharma, the Ontario Court of Appeal struck two provisions in the Criminal Code that denied Cheyenne Sharma, a young Indigenous woman, access to a conditional sentence as unconstitutional and discriminatory against Indigenous people. The Court found that limiting conditional sentences effectively restricted measures intended to address anti-Indigenous racism in the justice system.

Conditional sentences can also be important for permanent residents convicted of a crime who maybe at risk of loosing their immigration status in Canada; time served in community would not count as jail time in their immigration inadmissibility hearings.

However, while conditional sentences are alternatives to incarceration, they also widen the net of criminalization. A breach of a conditional sentence, including strict conditions of house arrest or drug/alcohol abstinence, can easily become a defacto revolving door to prison, especially for already oppressed communities with the least access to financial and social supports. While a seemingly better alternative to prison, conditional sentences actually retain the constant threat of state surveillance and incarceration.

Full Decriminalization of Simple Drug Possession

The third area of reform that Bill C-22 proposes is in drug policy. It is a positive step that Bill C-22 repeals mandatory minimums for all drug offences under the CDSA. According to federal government data, drug offences comprised 75% of all offences punishable by a mandatory minimum penalty for which people were admitted to federal prison.

However, Bill C-22 also does not fully decriminalize simple drug possession. It retains discretionary policing powers, including warnings, charges and criminal prosecutions. As the HIV Legal Network describes, “Bill C-22 still authorizes police officers to ‘warn’ people found in possession of drugs or to refer them to services, and police officers and prosecutors can still charge and prosecute people, after consideration of the bill’s principles. At the same time, the bill permits police officers to keep a record of such warnings to people in possession of drugs for personal use — an unnecessary, ongoing infringement of human rights.”

While the bill makes some effort to treat drug use as an issue of health and human rights, this retention of prosecutorial and police discretion and surveillance is unacceptable, especially since such discretion most targets Indigenous, Black, racialized, undocumented migrant, homeless, two spirit and trans drug users. Furthermore, the use of the criminal legal system to enforce diversion measures or treatment is counter to the principles of evidence-based, trauma-informed, voluntary treatment. 

The retention of a criminal law approach to drug use is unconscionable amid an epidemic of drug overdoses that has resulted in 20,000 deaths in Canada since 2016. According to medical researchers, Indigenous people account for 10% of overdose deaths, making decriminalization and safe supply a pressing priority for meaningful reconciliation and decolonization. Full decriminalization means removing all criminal sanctions and other regulatory measures — such as administrative penalties, fines, drug seizures, involuntary treatment or coerced diversion programming — for the possession of substances for personal use.

What We Need

At a time of widespread global reckoning about the harms of police and prisons, especially on Indigenous and Black lives, we need bold – not incremental – action from the federal government.

Black feminist author Robyn Maynard writes, “People from all walks of life are increasingly asking why not divest from the billions of dollars poured by cities, provinces and the federal government toward policing and incarceration. And just as importantly, why not invest instead in addressing — finally and at long last — the rampant racial, gender, class, and ability-based inequalities in our society? These are urgent questions. And some of our lives depend on how they are answered.”

< class="what-entry-title">Stopping Alberta’s Assault on Democracy During the Pandemic>
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What is happening?

Legislative Assembly of Alberta

Alberta’s Bill 10 is one of the most far-reaching responses to the COVID-19 pandemic made by a provincial government. The Alberta government, led by Jason Kenney’s United Conservative Party, rushed this bill into law after only two days of debate. This bill gives cabinet ministers the power to unilaterally and immediately enact new laws during a public health emergency with no input from the Legislative Assembly of Alberta. Bill 10 is an affront to the constitutional bedrock of Canadian democracy.

Following a lawsuit by the Justice Centre for Constitutional Freedoms (JCCF) to have the bill declared unconstitutional, the BCCLA was granted leave to intervene in the case. As one of Canada’s oldest and largest civil liberties organizations, we are deeply concerned about Bill 10. This Bill violates the separation of powers between the Legislative Assembly and the provincial cabinet, the constitutional framework that guides how decisions are made by the government, the protection of minority rights, and the principle of democracy itself.

Now, rather than face the courts and defend Bill 10, the Government of Alberta is trying to silence this case by arguing that it is now moot following their announcement that the controversial bill will be repealed in the spring. This non-binding promise will not protect Albertans’ democratic rights during a global pandemic.

Who is affected?

Bill 10 has silenced democratic opposition in the name of combatting the COVID-19 pandemic. The BCCLA supports public health measures to address the COVID-19 pandemic and to protect the human rights of the most vulnerable. However, government responses must be rooted in science and public health needs, with no more intrusions on civil liberties than necessary. 

All Canadians have a stake in this case, but none more so than those belonging to systemically oppressed groups. The process of introducing, publishing, and debating bills with multiple readings provides critical features of rights protection for all peoples of Canada, but especially racialized and minority groups by providing them with a chance to make their voices heard.

Recent updates

While Health Minister Tyler Shandro announced that the Government of Alberta will repeal Bill 10 in the Spring of 2021, the damage has been done. This bill has harmed Albertan democratic institutions and has violated the Canadian Constitution, including the Charter of Rights and Freedoms. The BCCLA has urged the Alberta Court of Queen’s Bench to stop this bill now and discourage other governments from enacting similar legislation.

Hearings concerning the Government’s applications to strike this case and the issue of whether JCCF had public interest standing to bring the case were held on February 22, 2021. The BCCLA supports the JCCF in urging the court to deny the government’s efforts to punt this case and therefore allow for a proper examination of the bill’s constitutionality.

The Court gave its oral reasons for its decision on March 31, 2021. Justice Kirker determined that the lawsuit is not the best way to bring the issue before the courts because the government said that they will repeal the law soon. The JCCF is seeking to appeal this troubling decision.

In our view, Minister Shandro’s non-binding promise to repeal Bill 10 cannot be viewed as sufficient grounds to refuse to hear this case, which has been languishing before the court for over a year. Canadians deserve to have the courts determine whether Alberta’s government has breached the Constitution.

Why this case matters

We are very concerned by this ruling. This decision raises the already high bar for public interest organizations to go to court and defend Canadians’ rights against unconstitutional laws like Bill 10. The clock is running out. With the proposed repeal of Bill 10 on the horizon, the Government of Alberta may succeed in getting away with passing and enforcing an unconstitutional law. Bill 10 has already made an impact across the country as other provincial governments have been emboldened to pass their own laws which also violate Canadians’ rights to democratic due process.

We are encouraged to know that the JCCF is seeking to appeal this deeply flawed ruling to the Alberta Court of Appeal. The courts must not use non-binding promises made by partisan politicians as a basis for undermining the ability of public interest organizations to challenge unconstitutional laws.

The BCCLA knows that civil liberties are often imperilled in times of fear and uncertainty. That’s why we’re fighting this unconstitutional law. Governments must be held accountable when they violate Canadians’ rights.