< class="what-entry-title">Announcing our 2020 Liberty Awards Winners>
Posted on

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

Award Rescinded – Mary Ellen Turpel-Lafond

Update: on 9th March, 2023, the BCCLA rescinded the award given to Mary Ellen Turpel-Lafond in light of revelations regarding her purported Indigenous identity and professional claims.

As a largely settler organization, the BCCLA recognizes our responsibility to stand with Indigenous communities on the appropriate measures to address ongoing harms faced by Indigenous peoples. The BCCLA also recognizes that in awarding Dr. Turpel-Lafond the Reg Robson Award, our organization contributed to amplifying Dr. Turpel-Lafond’s claims and position of influence. We acknowledge that Dr. Turpel-Lafond’s misrepresentation regarding her purported Indigenous ancestry must also be contextualized within the greater, widespread pattern of Indigenous identity fraud, and the severe harms that it causes in perpetuating colonial violence and assimilation practices.

The BCCLA re-iterates our commitment to standing in solidarity with Indigenous people, particularly Indigenous women, and to listen with open hearts and minds in our support against colonial violence. 

Read the full statement from staff and Board on this unanimous decision.

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>
Posted on
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:


[1] Arthur Cockfield, “The High Price of Chinese Money Laundering”, The Globe and Mail (February 8, 2019) <>; 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) <>; 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:

[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?>
Posted on

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.


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:


[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 <>

[ii] Backgrounder: Bill C-15 – United Nations Declaration on the Rights of Indigenous Peoples Act (2020), online (pdf): Government of Canada <>.

[iii] Ibid.

[iv] “The Journey of Reconciliation: Issuing our Statement of Reconciliation at Canada’s TRC” (21 September 2013), online: BC Civil Liberties Association <>.

< class="what-entry-title">Proposed property seizure law erodes civil rights>
Posted on

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.


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.


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.


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

[2] ( 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 p 44-45


[6] See ex:

[7],%202020.pdf, pages 114-115.

[8]  see:

[9] at p 2.

[10],%202020.pdf,  pages 151-152

[11] 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?>
Posted on

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>
Posted on

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.

< class="what-entry-title">We’re hiring a Director of Operations and People!>

The BCCLA’s Director of Operations and People requires a talented person to actively grow the effective operational and internal capacity of our growing organization. This is a full-time, permanent position.

Reporting to the Executive Director and working closely with the full staff team as well as the Board of Directors, the Director of Operations and People provides a leadership role in BCCLA’s financial, operational, governance, internal capacity and HR work.

We are seeking a poised and professional leader with a strong background in financial management, budgeting processes and endowment management, development of organizational policies, operational infrastructure, managerial experience, knowledge of and interest in human rights and civil liberties issues, and a deep commitment to equality, justice, and freedom. The successful candidate will show leadership, good judgement, and strong ethics.

The BCCLA is committed to ensuring that equity, diversity, and inclusion are priority considerations, including in building a workplace that honours the particular experiences and expertise of communities marginalized through state violence and social oppression. The BCCLA strongly encourages applications from all qualified Indigenous people, Black people, people of colour, immigrants and refugees, working class people, and LGBTQ+ people. Applicants are encouraged to self-identify, should they feel comfortable doing so, in their cover letter and are invited to share how their lived experience would inform their approach and ethics in this leadership position.

This position is normally based at our office in Vancouver at #306-268 Keefer St, on unceded Indigenous lands belonging to the xʷməθkwəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and səlil̓wətaʔɬ/Selilwitulh (Tsleil Waututh) nations.

In light of COVID-19, the option to perform this position mostly remotely is available until distancing measures are lifted; a laptop and access to all required platforms will be provided. As an Operations position, this position does require some regular in-office work, in compliance with WorkSafeBC guidelines for in-office work during the pandemic.

How to Apply

Applications including cover letter and resume can be emailed to [email protected] and are due by 11:59pm PST on March 9, 2021.

We anticipate interviews will be conducted by BCCLA staff through video-conference during March 2021, with an ideal start date of end of April 2021.

Download the full job posting here.

< class="what-entry-title">Cryptocurrencies and your rights>

BCCLA at the Cullen Commission of Inquiry into Money Laundering in British Columbia

As 2020 came to a close, the BCCLA continued its participation at the Cullen Commission of Inquiry into Money Laundering in British Columbia. From November 23-25, 2020, the Cullen Commission turned its attention to virtual assets, including blockchain and cryptocurrencies.

gold-colored Bitcoin
Photo by: André François McKenzie

While virtual assets and cryptocurrencies may seem like niche issues today, they are being taken seriously by governments, financial institutions, and technology companies. The underlying technology has a wide range of applications. If the optimists are right, blockchain technology and cryptocurrencies will enable the development of new digital art forms, innovative methods for collective decision-making, and a more inclusive financial system. However, opponents fear they could undermine government’s role in the economy and act as a payment channel for crime and corruption.

The Cullen Commission focused on the darker side of virtual assets. Witnesses discussed the use of cryptocurrencies in enabling drug marketplaces like the Silk Road, in ransomware attacks, and in money laundering more generally. They discussed the challenges in investigating crimes where cryptocurrencies are involved. The Commission heard witnesses from the RCMP, Chainalysis, a company that combines blockchain data with other “open source intelligence” to identify users of cryptocurrencies, and a number of companies in the virtual assets industry.

The BCCLA brought a much-needed civil society voice to the Cullen Commission’s analysis of these emerging technologies. BCCLA lawyers raised serious concerns about privacy and surveillance, encouraged the development of virtual assets in ways that could make the Canadian financial system more equitable and inclusive, and discouraged new rights-infringing regulations that unduly hamper innovation.

The BCCLA encourages the development of virtual assets and blockchain technologies in ways that strengthen Charter values and reduce discrimination, and strongly opposes new police powers that would undermine those gains.

What are virtual assets?

Virtual assets are things that hold value but only exist in digital form. The term often refers to cryptocurrencies such as Bitcoin or Ethereum, but includes other assets built on similar technologies, from securities to digital art and collectibles.

At the Cullen Commission, the discussion of virtual assets focused on cryptocurrencies, which are based on a technology called blockchain. Three features of blockchain technology make it especially interesting to both the Cullen Commission and the BCCLA —decentralization, transparency, and pseudonymity. [1]


Blockchains are decentralized, meaning they don’t rely on an authority like a bank or government to record account balances or approve transactions. Instead, the records are stored in a database that is copied to and maintained by thousands of computers around the world—a blockchain. For most blockchain networks, anyone with a computer and an internet connection can download software that allows them to participate in the network.


Blockchains record a history of every transaction that has been sent over the network, typically including the blockchain addresses of the sender and receiver, the amount sent, and the balances associated with each address. Anyone can download a copy of the blockchain to view a specific transaction or the entire history of an address.


Blockchain addresses may look like a random string of numbers and letters, but they are not anonymous. They are pseudonymous. Even though blockchain addresses do not provide an individual’s name, they can often be associated with an individual by other means.

Virtual assets and civil liberties

Privacy and surveillance

At the Cullen Commission, the RCMP raised concerns about the difficulties police face in investigating crimes involving cryptocurrencies, suggesting that increased regulation may be necessary to maintain public safety.

However, the RCMP also acknowledged that blockchain technology can be an asset to police investigations, since it provides a full transaction history. Although cryptocurrencies and other blockchain technologies are pseudonymous, the transparency of the blockchain provides a wealth of information to anyone who cares to look, including the police.

shallow focus photo of white paper sheet mounted on cork board
Photo by: Volodymyr Hryshchenko

To illustrate this, imagine the stereotypical red string board of an obsessed detective or conspiracy theorist. The detective puts up pictures of individuals they know or bits of evidence they have found, then connect the dots as more facts are uncovered, eventually revealing a map of the subject of the investigation.

With a blockchain, the dots are already connected by a tangle of red string showing all the transactions between addresses, including those related to the criminal activity under investigation. The job for investigators is to decide which strings are important and identify the people the strings lead to.

An RCMP witness acknowledged that the level of information investigators can obtain from the public blockchain is already more than they would be able to get from a bank without a court order:

 [T]his is information which we would typically have to complete a production order in order to obtain from a bank or financial institution, whereas here we could simply go publicly and confirm that a transaction has actually occurred.[2]

Privacy, open source intelligence (OSINT), and blockchain analysis

BCCLA is deeply concerned by the level of financial surveillance possible through the combination of blockchain data with OSINT.

The red strings aren’t all the information available to police. With the help of commercial software vendors and data brokers, blockchain data can be supplemented with other personal information. Companies like Chainalysis provide the police with software that combines information available on the blockchain with “open source intelligence” to find patterns in the data and de-anonymize the individuals behind addresses. OSINT includes information collected from a wide variety of sources, including news reports, social media, and public records. It can include information purchased from data brokers and other proprietary sources. Chainalysis witnesses at the Cullen Commission would not confirm exactly what information its software provides to its law enforcement clients, but said it might include information purchased from data brokers.[3]

BCCLA is deeply concerned by the level of financial surveillance possible through the combination of blockchain data with OSINT. Police and intelligence agencies shouldn’t be able to use commercial products to obtain information about Canadians they would not otherwise be able to obtain without a court order. Financial information is one of the most sensitive forms of personal information. How we spend our money can reveal a great deal about our political opinions, religious beliefs, sexuality, health, relationships, and interests. Canadian courts and privacy commissioners have routinely held that financial information is highly sensitive and deserves the highest levels of protection.

Equality and inclusion

Despite the risks to financial privacy, BCCLA is hopeful that the right kinds of development of virtual assets and their underlying technologies could reduce systemic discrimination in the Canadian financial system and help reduce inequality.

Canada’s financial system is one of the most advanced and stable in the world, but it is not accessible to everyone. For example, the Cullen Commission heard evidence that financial discrimination is a growing issue for sex workers. Many banks, credit cards, and online payment platforms refuse to provide service to sex workers. Even if they manage to obtain banking services, credit card processors offer “chargebacks”, which unscrupulous clients use to claw back payments after a sex worker has provided a service.  

In response to these challenges, some sex workers are turning to cryptocurrency as an alternative to traditional payment systems. By accepting cryptocurrency, sex workers can avoid the discriminatory barriers created by financial institutions. The pseudonymity of cryptocurrency allows sex workers to maintain their privacy, while the irreversibility of cryptocurrency payments provides certainty that they will be paid for their work.

This is just one example of how cryptocurrencies and other blockchain technologies may provide a path for marginalized communities to work around the financial system that has excluded them. These technologies offer the opportunity to build new financial services outside the existing banking system, with transparency and security guaranteed by the blockchain.

Cryptocurrency is not just for illegal activity

Almost all of the witnesses at the Commission raised concerns that cryptocurrency could be used by “criminals” to conceal their illegal activities. However, the Commission also heard that only 1.1% of cryptocurrency transactions were suspected to be tied to crime. In other words, 98.9% of cryptocurrency transactions were entirely legitimate. As the technology develops and achieves greater mainstream adoption, it is likely an even greater percentage of use will be completely legal. In light of this, the BCCLA rejects calls for new state powers to monitor cryptocurrency transactions or restrict the use of blockchain technology.

Safeguarding financial privacy

The BCCLA is hopeful that virtual asset technologies will lead to a more equitable, inclusive financial system. However, widespread adoption of blockchain technology also creates the risk of unchecked surveillance by law enforcement and intelligence services, providing easy access to vast quantities of deeply personal information without court oversight.

We believe that police should not be free to purchase information they would not be allowed to collect themselves without court supervision. Even when information is technically public, court oversight of its collection and use may be appropriate. To realize the benefits of these promising new technologies, we must prevent them from being used to establish an unaccountable financial surveillance regime.

The BCCLA will continue to push for financial privacy and a more inclusive and equitable financial system as the Cullen Commission continues into 2021.

More on our work at the Cullen Commission:


[1] This blog post won’t provide an in-depth technical explanation of blockchain technology and how it works. For the purposes of this post, we just assume that the technology works as promised. If you want to learn more, there are lots of resources online. You could start with this explainer video:

[2],%202020.pdf, November 23, 2020, page 36

[3],%202020.pdf page 130-135

< class="what-entry-title">Should white supremacist organizations be designated as terrorist organizations?>
Hasan Alam interviewed by Harsha Walia

The white nationalist insurrection at the Capitol in the US on January 6, 2021,  prompted the Canadian government to, first, unanimously pass an unofficial motion at the House of Commons and, subsequently, officially designate the Proud Boys as a terrorist entity. Twelve other organizations were also added at the same time.

In Canada, there are hundreds of active far-right extremist and white supremacist groups. The BC Civil Liberties Association (BCCLA) is strongly committed to confronting and ending white supremacy and all forms of hate that harm Indigenous, Black, Muslim, Jewish, and racialized communities. Violent hate threatens democratic and equality rights for all of us. In 2020, we joined 25 human rights and civil liberties groups in calling on the federal government to establish a national action plan to dismantle white supremacist and neo-Nazi groups.

But is part of the solution to designate white supremacist organizations as terrorist organizations?

In the US, the American Civil Liberties Union (ACLU) has stated that law enforcement agencies already have the powers needed to dismantle far-right groups and, according to Manar Waheed, ACLU’s senior advocacy counsel: “We cannot find our solutions in systems that ultimately harm us, particularly Black and Brown people.” As Aly Panjwani and Lea Kayali write, “Calling white supremacists terrorists will not change the epistemological realities of the terrorism label — it will only further fuel the militarized practices of the War on Terror apparatus.”

Hasan Alam, BCCLA Board member, lawyer, and community liaison for the Islamophobia Legal Assistance Hotline

For the past twenty years, the BCCLA has been raising the alarm about Canada’s post 9/11 national security legislation that, generally speaking, subverts minimal standards of presumption of innocence, violates the right to due process, authorizes arrest and detention without charge or arrest simply by association, and often relies on secret evidence. We have challenged Canada’s No Fly list, joined detainees in challenging the constitutionality of security certificates at the Supreme Court of Canada, called for increased oversight and accountability of national security agencies, pushed for and participated in the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, and advocated against countless bills like C-51, S-7, C-59, and C-23.

I spoke with Hasan Alam, a BCCLA board member, lawyer, and community liaison for the Islamophobia Legal Assistance Hotline, to discuss the thorny issue of whether or not white supremacist organizations in Canada should be designated as terrorist organizations.

– Harsha Walia

Harsha: To start us off, can you please describe what being listed as a terrorist organization actually means?

Hasan: It is not technically a crime to be listed as a terrorist organization and the Anti-Terrorism Act provides measures for the Government of Canada to create the list of entities based on:  

  • having knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity
  • or knowingly acted on behalf of, at the direction of or in association with an entity that has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity

The process to add a group to the Terrorist Entities List is a provision under the Criminal Code: Section 83.05. The Minister of Public Safety, based on advice from Canada’s security agencies or CSIS, makes a recommendation to the Governor in Council, who then approves the listing. Terrorism, under Canadian law, is any act that is politically, religiously or ideologically motivated, which aims to intimidate or compel an action, and which intentionally causes death, serious bodily harm, endangers a person’s life, causes substantial property damage or disrupts essential systems.

Groups who are added to this list are not informed in advance, nor are they given the chance to speak to or respond to allegations against them. While the decision must meet the standard of “reasonable grounds to believe” that a listed group will engage in terrorism, the decision is based on secret information, including information that would otherwise be inadmissible in court. For example, it may include anonymous intelligence that could be inaccurate or obtained through mistreatment and/or torture, as well as hearsay evidence.

Only once a group is added does the listing become public, and the listed entity is in a position to challenge it. Even then, though, they are not granted access to all the information used against them and information can be withheld, including on purported national security grounds. This makes it incredibly difficult to mount a defense. The allowance of secret evidence is the norm and not the exception, flying in the face of the expectation that one faced with such a serious accusation would be able to know the entire case against them and be able to fully challenge it.

This is, therefore, a process shrouded in secrecy, based on suspicion, and relies largely on the assumption that CSIS will act in good faith and provide honest intelligence to the Minister of Public Safety. But CSIS’s track record is one of misleading our public institutions, including the courts. For example, the Federal Court and Federal Court of Appeal both recently held that CSIS had breached its duty of good candour and good faith to the Court and had obtained a warrant on the basis of evidence that was deliberately “crafted” to mislead and “keep the Court in the dark.”

If the government has evidence that indicates listed organizations pose a threat to someone’s safety, they should make that evidence public and prosecute these organizations through our court system and the open court principle. It should not be shrouded in secrecy or be at the whim and discretion of the government. It is a huge concern that national security legislation sanctions the government to act in almost total secrecy and not reveal the evidence upon which it relies upon to go after perceived terrorist threats. CSIS is also allowed to carry out investigations in complete secrecy, with little to no oversight. Even when such issues go to court, much of the evidence relied upon is heard before the courts in secrecy. 

One of the most troubling features of Canada’s national security laws are security certificates, under which permanent residents and refugees have been detained unlawfully without any charge and potentially indefinitely, had their rights violated, and face deportation from Canada to face torture and prosecution – all based on evidence that they might never see and which could otherwise be inadmissible in a court of law. By contrast, the government, who is the opposing party, is never excluded and has access to all the evidence. In 2007 the Supreme Court of Canada unanimously voted 9-0 that the security certificate system was unconstitutional. The BCCLA intervened in this important case. A new bill was passed in early 2008 but this system still remains fundamentally flawed and in violation of the right to due process.  

Other draconian examples of Canada’s national security regime is Bill C-51, which made significant changes to national security, anti-terrorism, and privacy law, and the No Fly List, which has placed thousands of innocent people, including children, on a list just because they had a Muslim names that matched someone else’s. At the end of the day, we do not even have evidence that Canada’s anti-terror and national security laws are effective and actually prevent terrorism. Yet we do have clear evidence of how detrimental it can be with respect to our civil liberties and how it can lead to wrongful detention, deportation and torture.

Harsha: Thank you for detailing how the process works and the affects it has on civil liberties and human rights. Can you describe what some of the impacts have been on Muslim communities?

Hasan: I was in my 20’s in the aftermath of 9/11 and, in the years that followed, Canada’s anti-terrorism laws expanded and were embedded in Islamophobia. Even more recently, ex-Prime Minister Stephen Harper justified the passage of Bill C-51 by equating mosques with terrorist breeding grounds. For the Muslim community, the post 9/11 era has meant the fear of constantly being surveilled, put into indefinite detention, or deported to a foreign country to face torture.

These are not irrational fears; these fears are grounded in reality. We have witnessed Muslim men being detained indefinitely without being charged or knowing the evidence against them. Individuals such as Adil Charkaoui, Mohammad Mahjoub, Mahmoud Jaballah, Mohamed Harkat, and Hasan Almrei who were detained indefinitely without charge on security certificates. Maher Arar, a Canadian, was deported to Syria to be tortured, with the help of CSIS agents. These all became household names in the Muslim community and examples of what could happen to us if we acted too Muslim, or looked too Muslim, or spoke too Muslim. Due to the expanded and unchecked powers of Canada’s national security laws, we were fearful of attending mosques or gatherings because we knew that CSIS informants were being placed within our mosques.

For the Muslim community, the post 9/11 era has meant the fear of constantly being surveilled, put into indefinite detention, or deported to a foreign country to face torture.

I remember my own parents begging me with tears in their eyes for me to not get involved in student politics, to not get involved in my local mosque or Muslim Student Association, and to not speak out against the War on Terror. They were afraid CSIS would come knocking, which was happening all across the country. When I was the president of the SFU Muslim Students Association, a CSIS agent did come knocking. This CSIS agent sat across from me and asked me questions about the members of that club, if anyone had traveled to the Middle East or Pakistan recently, if anyone had started praying or going to mosque more regularly. Everyone in that group met that criteria! I was terrified after that encounter, not only because it drove home to me that I was probably being watched, but also the vague criteria that CSIS was using to identify people who they deemed to be suspicious. This had a chilling effect and we all became scared to become more politically vocal. The worst part was that many people within the community started to became suspicious of each other.

Harsha: That is a chilling overview of the national security regime, Hasan. In light of this broader context, what are your concerns with the recent unanimous motion in the House of Commons to list the white supremacist organization Proud Boys as a terrorist organization?

Hasan: My comments are situated within my lived experience as a Muslim and the experiences I have described. My concerns with using the term “terrorist” or invoking Canada’s national security legal infrastructure stems from my community’s experience with this label of “terrorist” and the state powers that accompany it. The Muslim community has been treated as suspicious or suspect and been harassed, surveilled, vilified, and detained from as early as I can remember.

It would be easy for me to say “See, you got it wrong. It’s white supremacists that you should have been calling terrorists all this time – not us.” But such rhetoric translates into real life consequences and the use of a terrorism framework further empowers the state to use counter terrorism measures. It is this very legal system of national security and counter terrorism that has historically and contemporarily targeted and criminalized Indigenous, Brown, Black and leftist communities – the very same marginalized communities that white supremacists target for hate.

We cannot forget that the first community that the Canadian state labeled as a threat to the Canadian state was the Indigenous community, and land defenders continue to be labeled and perceived as a threat to the state. More recently and especially since 9/11, the overwhelming majority of individuals and organizations labeled as terrorists or have been the targets of Canada’s national security laws have been Muslim. The build up of Canada’s security regime over the past two decades has been fueled by a rhetoric of Islamophobia. Muslim bodies have literally been the testing grounds for these laws, even when their very constitutionality has been questioned in the highest courts of this country.

I am fraught with fear when the term “terrorist” is invoked, even if it is against a white supremacist organization, because the normalization of this regime means continuing to uphold and give tacit approval for its ongoing use against the Black and brown Muslim community, Arab community, Sikh community, and other racialized communities. In an era where the Black Lives Matter movement is gaining momentum, who is to say that Black activists won’t also be targeted? A one-off designation of a white supremacist group as a terrorist organization does not somehow fix the gross misbalance of the use of these national security regimes against racialized communities and political dissenters.

Labelling these white supremacist groups as terrorist organizations is not the solution. Even if the Proud Boys are designated as a terrorist group and even if the group dissolves, the members who ascribe to the white supremacist ideology will continue to be present within our society and will re-group. The terrorist designation doesn’t change the members’ ideas or the ideology that they subscribe to. The Proud boys of today are the neo-Nazis or the KKK of yesterday.

Harsha: You have made a clear case that strengthening national security laws will ultimately be more harmful for racialized communities than for white supremacists, and also that national security is an ineffective framework for tackling white supremacist organizations. What are more effective ways and tools to dismantle these organizations and end white supremacy?

Hasan: Yes, I do not believe that labeling white supremacist organizations as terrorist organizations is the way in which we will go about dismantling these organizations or white supremacy.

First, designating these organizations makes it seem as if these groups are a few bad apples in a system and society otherwise free of white supremacy. We can’t fit the elements of these organizations neatly and squarely within the confines of the term “Terrorist,” and ignore the fact they are simply a symptom of the larger systemic problem of white supremacy within Canada.

If we want to dismantle white supremacist organizations at their core, we need to first dismantle the culture and system of white supremacy that exists within our communities and institutions. The membership of organizations such as the Proud Boys come from all segments of society: students, teachers, lawyers, military officers, law enforcement officers. Designating some white supremacist groups as terrorist detracts from the other larger problem and also sends this false signal that the problem has been dealt with.

But also, to quote you, Harsha, and others who have made this point, why don’t we just designate white supremacist groups as white supremacist groups? And doesn’t that really get at the heart of the problem here – people are not motivated to act against white supremacy but are motivated by the already-racialized framework of terrorism and counter-terrorism.

“If we want to dismantle white supremacist organizations at their core, we need to first dismantle the culture and system of white supremacy that exists within our communities and institutions.”

For years, authorities have ignored or downplayed the threat that violent white nationalists pose, even though Canada’s own intelligence agencies have been pointing out that these organizations, not jihadi organizations, pose the largest domestic threat. And despite this fact, our government and the public as a whole hasn’t mobilized to combat this threat. The Canadian government has dedicated hundreds of millions of dollars to programs that are aimed at de-radicalizing Muslims. Programs like this have included RCMP and CSIS agents speaking at mosques, Muslim youth groups, and putting out pamphlets and guides on how to spot radicalized Muslim in our communities. Where are the hundreds of millions of dollars being dedicated to de-radicalizing and de-Nazify young white men? Also, there are already laws in Canada’s Criminal Code that can be used to address the threat of white supremacist groups, without having to resort to anti-terrorism laws that undermine due process and violate our rights under the Charter of Rights and Freedoms. We do not lack the tools, we have lacked the political will.

< class="what-entry-title">BCCLA’s 20 Highlights of 2020>

It is strange to write about highlights in the midst of a global health pandemic and the compounding horrors of the world that reveals the fault lines of who is kept safe and who is not. There continues to be a crisis of gendered colonial violence borne by Indigenous women, girls and two-spirit people every day; the opioid drug poisoning epidemic is killing thousands of our neighbours; and the violent harms of policing and prisons are especially hurting Black, Indigenous, low-income, and disabled communities.

More than ever, defending civil liberties and human rights is imperative. Here are our 20 highlights of 2020, crowd sourced from our team passionately fighting in the courts, advocating for meaningful law reform, and advancing public legal education.

Flattening the COVID Curve: Equality not Enforcement

We supported nationwide efforts to protect the human rights of the most vulnerable, while speaking out against unreasonable breaches of civil liberties and against policing of the pandemic. Read our op-ed “Our civil liberties matter during crises” in the Vancouver Sun.

  1. We urged governments to adopt human rights measures to ensure no one was left behind. This includes protecting the human rights of refugees at the border; homeless people in encampments; women and gender diverse people experiencing violence; sex workers and people using drugs being criminalized by bad laws; and people incarcerated in prisons and jails, including those dying in custody.
  1. We advocated against unreasonably invasive digital surveillance during the pandemic. We also met with government officials and raised key privacy and data protections concerns in contract-tracing apps. We supported the Heiltsuk First Nation, Nuu-chah-nulth Tribal Council, and Tsilhqot’in National Government in their legal complaint demanding health information transparency for Indigenous governments.
  1. We produced a series of four “Your Rights in a Pandemic” factsheets on the powers of government emergency orders, enforcement powers of public health orders, tenant privacy rights and medical disclosure, and a guide to conditional releases for incarcerated people.

End to Policing Harms

In the wake of deadly tragedies of police violence, there has been public outcry against the harms and systemic racism of policing. We organized three educational webinars on “Policing Black and Indigenous Lives,” “Racism in Policing and Surveillance Tech” and “Who’s Policing the Police? Police Oversight and Accountability in Canada” that you can watch online.  

  1. We launched a lawsuit against the RCMP Commissioner for inexcusable delays preventing the release of a civilian watchdog report into RCMP spying on Indigenous and climate advocates.
  1. We supported Wet’suwet’en Hereditary Chiefs and land defenders with a policy complaint to the civilian watchdog regarding the unlawful RCMP checkpoint and exclusion zone during militarized RCMP operations on unceded Wet’suwet’en territory. Our joint op-ed “Settler governments are breaking international law, not Wet’suwet’en hereditary chiefs” appeared in the Toronto Star.
  1. We worked with Union of BC Indian Chiefs, Hogan’s Alley Society, WISH Drop-In Centre Society and Black Lives Matter to organize a powerful coalition of 92 organizations and 8,944 individuals calling for a ban on racist and illegal police street streets across Vancouver and BC. Vancouver and Victoria city councils have passed motions calling for a ban. We also challenged the Vancouver Police Board after receiving disturbing information about the censorship of racist and inappropriate comments and conduct by VPD officers in the Vancouver Police Board Street Check Review report. We co-authored an op-ed “Why did the Vancouver Police Board hide racism in VPD ranks?” in the Vancouver Sun.

Challenging Criminalization

We oppose criminalizing laws that extend into many aspects of our lives including prisons, the criminal legal system, child apprehension laws, and coercive healthcare. Laws intended to criminalize disproportionately affect Indigenous, Black, Muslim, racialized, sex worker, drug user, and low-income communities.

  1. We announced an end to our cross-appeal at the Supreme Court of Canada in our solitary confinement case with John Howard Society. The federal government finally abandoned its attempt to overturn our historic victory at the BC Court of Appeal, which found that prolonged solitary confinement in federal prisons is inhumane and unconstitutional.
  1. We secured an important victory with community organizations in forcing a pause on the coercive Bill 22. Bill 22 proposed amendments to BC’s Mental Health Act to create a new form of detention and involuntary health care for youth experiencing an overdose.
  1. We celebrated two important victories in our Supreme Court of Canada interventions; one limiting police powers to entrap people and another affirming that bail conditions must be consistent with the presumption of innocence. In the highest court, we also argued against the abolition of peremptory challenges that reduce jury diversity and are fighting for young persons’ right to appeal in the criminal legal system.

Free Expression

Freedom of expression has been a cornerstone of BCCLA’s mandate for decades. This freedom is especially essential for oppressed communities to act collectively to challenge unjust laws.

  1. We celebrated an important legal victory protecting the right of frontline healthcare workers, such as Carolyn Strom, to criticize the healthcare system without fear of employer or administrative discipline.
  1. We spoke out against the implementation of the International Holocaust Remembrance Alliance (“IHRA”) definition of antisemitism in Montreal and Ontario. While we condemn antisemitism and all racism, this definition and list of illustrative examples can chill Canadian, especially Palestinian and Arab Canadian, protests of Israeli state policy.
  1. In response to members of the Kwantlen First Nation, we released an unprecedented letter detailing the application of Charter section 2 on reserves.
  1. We intervened and won at the Supreme Court of Canada in cases supporting anti-SLAPP laws and protecting people from legal intimidation by powerful private actors.

Privacy Rights

With the explosion of digital technologies, protecting privacy rights is one of our priorities.

  1. We are the only civil society organization granted standing at the Cullen Commission of Inquiry into Money Laundering in British Columbia. We support efforts to combat money laundering, however, some of the government’s recommendations raise serious concerns for privacy, due process, government surveillance and police seizure powers, and risk having a disproportionate impact on East Asian Canadians.
  1. We celebrated the news that Clearview AI is ceasing its controversial facial recognition services in Canada and are calling for a ban on all facial recognition surveillance by federal law enforcement and intelligence agencies.
  1. We made an essential joint written submission to the Special Legislative Committee reviewing BC’s Personal Information and Protection Act. We recommended substantive amendments to the Act, including digital privacy protections.

Democratic and Human Rights

We know that democratic rights are only meaningful when liberty, dignity and equality are all reinforced. Similarly, decolonization is only meaningful when collective Indigenous rights are affirmed.

  1. As part of the Coalition on Murdered and Missing Indigenous Women and Girls in BC, we raised grave concerns to the federal government regarding delays in the registration process for First Nations women and their descendants who are newly entitled to status because of amendments to the discriminatory Indian Act. We also advocated for BC’s Human Rights Code to add Indigenous identity as a ground of discrimination.
  1. We launched a toolkit, downloaded thousands of times, to help people participate in the federal government’s consultative survey on medical assistance in dying and protect the right to die with dignity.
  1. We announced we are going to court against Alberta legislation that grants the government sweeping new powers to unilaterally write new laws without legislative oversight. In BC, a similar Act authorizes the government to temporarily change any piece of legislation during an emergency, without any public oversight and legislative approval.
  1. As absurd as it sounds, we secured an important victory for human dignity at the Supreme Court of Canada in a case reinforcing that s.12 of the Charter – protection against “any cruel and unusual treatment or punishment” – does not apply to corporations.

Even as I honour this tireless work by our committed staff team – supported by our dedicated network of probono lawyers, volunteers and board members and guided by the expertise of frontline communities – there is so much to be done. We will be ringing in the new year ready for more fights, and we cannot do it without the support our members and supporters. Thank you for fueling our fires and joining us in these fights.

Help us continue this work into 2021! Become a member today.