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< class="what-entry-title">Policing, Privacy & Parks: The Latest at the BCCLA>
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Every BCCLA staff meeting over videoconference, I am left speechless at the dizzying pace of my co-workers and the mind-bending issues they raise for us to advocate and litigate.

Take, for example, our legal intervention at the Federal Court of Appeal in Teksavvy v. Bell Media et al, raising novel civil liberties issues related to freedom of expression in the context of internet regulation and site-blocking orders.

Or, our most recent advocacy with partner organizations to express concerns with the cruel and coercive Bill 22. Bill 22 proposes amendments to BC’s Mental Health Act to create a new form of detention and involuntary health care in BC for youth who have experienced an overdose. In response to widespread opposition, the provincial government just announced they are pausing this bill. This is an important victory, but, in our press conference, we stressed that the bill must be fully withdrawn.

Here’s an inside look into what else has been brewing at the BCCLA since my last update:

Policing

Banning Police Street Checks:

We released an open letter with 73 co-signatory organizations and a petition signed by over 7,800 people calling for an immediate municipal and provincial ban on police street checks. This campaign has propelled both Vancouver and Victoria city councils to pass resolutions calling for their respective municipal police boards to prioritize ending street checks. You can watch Policy Counsel Latoya Farrell’s video on why street checks are illegal and, if you haven’t already, you can sign the petition to immediately ban racist and illegal police street checks in BC here.

We also found out from the Police Complaint Commissioner that the Pyxis-authored Vancouver Police Board Street Check Review had inexplicably removed references of disturbing and inappropriate comments and conduct by two Vancouver Police Officers, and you can read our highly concerned response to the Vancouver Police Board.

Ending Harms of Policing:

There is rising global and local public momentum calling for immediate action to address the harms of policing and anti-Black, anti-Indigenous, and racialized policing practices. We continue to advocate for an end to the harms in policing, such as fatal wellness checks, police use of force, and meaningful police accountability, working with family members like Al Wright.

As Judith Kekinusuqs Sayers, Ardith Walpetko We’dalx Walkem and Doug White III Kwulasultun poignantly write, “Indigenous people have a plan for achieving true justice. When will Canada act?” You can also listen to me on CBC’s Early Edition discussing systemic racism in policing and Meghan McDermott explaining your rights when filming the police.

Privacy Matters

Banning Facial Recognition:

With widespread concerns about policing powers and a joint investigation by federal and provincial privacy commissioners into Clearview AI’s use of facial recognition technology, Clearview AI is ceasing its facial recognition services in Canada.

This is an important victory; however, we need the federal government to ban the use of all facial recognition surveillance by federal law-enforcement and intelligence agencies. The BCCLA and others have written to the federal government on this issue, emphasizing facial recognition technology is highly problematic, given its lack of accuracy and invasive nature, and poses a threat to fundamental rights.

Contact-Tracing Apps:

The Canadian government announced a nation-wide COVID-19 contact-tracing application. The BCCLA and partner organizations issued a joint statement urging the government to only adopt such measures where demonstrably necessary and as a last resort. We argued and discussed with government officials that a contact-tracing app must be voluntary, require meaningful consent, protect data, and, at a minimum, adhere to the principles issued by privacy commissioners.

We are cautiously optimistic that the new app, COVID-Alert, will now meet most of our key privacy and oversight principles. However, we remain gravely concerned by the federal government’s claim that the new app is not subject to the Privacy Act.

Personal Information Protection Act:

We made oral submissions to the Special Committee to review the provincial Personal Information Protection Act, emphasizing the need for privacy breach notification, meaningful enforcement powers, privacy concerns associated with community organizations being required to share information, and de-identification.

Cullen Commission of Inquiry into Money Laundering:

The BCCLA is supportive of efforts to combat money laundering in the province. However, we have been granted standing in the Cullen Commission of Inquiry into Money Laundering in British Columbia to bring forward our unique perspective on civil liberties and privacy concerns.

The proposed recommendations call for significant expansions of police and regulatory powers and the over-collection, retention, and sharing of private information—without evidence that these changes would be effective in combatting money laundering—thus unduly infringing on the rights and liberties of ordinary people.

Prisoners Rights and Criminal Legal System

Ending Solitary Confinement:

The BCCLA and John Howard Society announced an end to our cross-appeal at the Supreme Court of Canada in our solitary confinement case, after the federal government finally abandoned its attempt to overturn our historic decision. As our Litigation Director Grace Pastine states, the case is a victory for all the brave prisoners who provided evidence and for everyone who objects to the barbaric practice of prolonged solitary confinement.

We also recognize much work remains. Bill C-83 will continue to allow prolonged, indefinite solitary confinement in federal prisons under a different name, and we are deeply disturbed about the use of solitary confinement to isolate prisoners during the pandemic. This cruel practice must be abolished.

Bail Conditions and Revolving Door to Prison:

We are celebrating a victory in our legal intervention on an important criminal justice case on bail conditions at the Supreme Court of Canada. In a unanimous decision in R. v. Zora, the court held that the offence of breaching a bail condition requires a subjective mental fault element (mens rea). The court acknowledged the fault element for breach of bail conditions has significant civil liberties implications, and bail conditions must be consistent with the presumption of innocence.

This decision has a far-reaching impact on communities who are over-policed. As our Litigation counsel Megan Tweedie explains, is “an important step in ending punitive bail conditions as a revolving door to the criminal justice and prison systems.”

Surveillance of Protestors and Indigenous Land Defenders

This summer marks three years since the Civilian Review and Complaints Commission for the RCMP completed an interim report into our spying complaint and forwarded it to the RCMP. We filed our complaint in 2014, detailing the illegal monitoring and spying of community groups and Indigenous land defenders opposed to the Enbridge Northern Gateway oil pipeline project.

We recently learnt the interim report details 18 findings and 7 recommendations, but the details are heavily redacted. BCCLA’s lawyer Paul Champ told media, “It’s a bit of a joke, really. Here we are, six years later, and we still don’t know what the findings are of the commission, and the RCMP has been sitting on those findings for three years. I really think it’s a disgrace.”

Criminalization of Poverty in Parks

We are gravely concerned about the wellbeing of homeless people, whose lives are threatened by the COVID-19 pandemic and the opioid health emergency, both of which disproportionately impact Indigenous people. In Victoria and Vancouver, we are urging municipal governments and parks boards to suspend enforcement of the prohibition on sheltering in parks to allow overnight and daytime sheltering in parks. This prevents daily displacement, which precludes sheltering-in-place during a pandemic, and allows encampments to provide necessary safety, including overdose prevention.

It is an honour for us to be doing all this work alongside so many partner organizations and community groups, and with the support of thousands of people. With your support, we will continue our critical work to protect and expand civil liberties and human rights for all.

< class="what-entry-title">BCCLA is Cautious of Government’s Contact-Tracing Announcement>
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The federal government recently announced that it has chosen a digital contact tracing application to recommend across the country, expected later this summer. In his press conference on June 18, 2020, Prime Minister Justin Trudeau indicated that the federal government “worked with” the federal Privacy Commissioner in bringing this forward. However, the Privacy Commissioner’s office has not yet had access to the app in order to analyze it. The government is not starting on the right foot, and we are highly concerned this lack of accountability and transparency may result in misuse of personal information and lack of public trust. 

Since discussions first arose around the use of contact tracing applications in Canada, the BCCLA has had significant concerns about the impact these applications could have on the privacy rights of people living in Canada. Contact tracing applications have not proven to be effective, and this type of digital surveillance has the potential to erode privacy rights both during and long after the pandemic.

Of the over 200 applications rolled out in over 30 countries around the world, there are no clear examples of where contact-tracing applications have actually been effective – at least not as a standalone. Without proven effectiveness, it is difficult to demonstrate that this measure is necessary and proportionate – necessary for a specific purpose, tailored to that purpose, and likely to be effective – even in the context of a pandemic.

Contact-Tracing App: Option of Last Resort

In April, the BCCLA, alongside Open Media, BC Freedom of Information and Privacy Association, International Civil Liberties Monitoring Group, and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic) issued a joint statement urging the Canadian government to only adopt surveillance-based measures where demonstrably necessary and as a last resort. If a decision were made to adopt a contact tracing application, we advised them to follow these seven principles.

With Prime Minister Trudeau’s announcement that a nation-wide application will be launched soon, we reiterate our concerns around contact tracing applications and strongly urge the federal government and provincial health authorities to adhere to, at a minimum, the principles issued by the privacy commissioners in early May. Adherence to these principles is critical because, as the privacy commissioners have pointed out, our “current privacy laws do not provide an effective level of protection suited to the digital environment.”

The collection of highly sensitive personal information, coupled with the lack of legal protections and unproven effectiveness of contact tracing applications, is extremely worrisome.

This worry is compounded by the way the federal government is rolling out the application. Trudeau made his announcement before the Canadian privacy commissioner received any of the necessary information to analyze or provide recommendations. To date, no privacy impact assessment has been completed either. The privacy commissioner’s review of the application and monitoring of its implementation is critical to ensure the federal government remains accountable for the collection of this highly sensitive information.

Sufficient accountability can only be achieved through independent oversight of the contact tracing application from the development phase through implementation, and such monitoring should include recourse for breaches, misuse, and violation of rights.

Any App Must be Voluntary, Require Meaningful Consent & Protect Data

Although the application is being touted as voluntary, the application should remain truly voluntary. Third parties should not have the ability to mandate that an individual download the application. When accessing public sector services or engaging in private sector activities like working, grocery shopping, or flying, no entity should require that an individual have downloaded the application as a condition for access or entry. If it is a requirement to have downloaded the application, then the application would not truly be voluntary. This would be an unjust infringement of individual privacy rights. This type of requirement could also lead to a discriminatory impact on marginalized individuals who may not have a cell phone.

The contact tracing application also needs to provide individuals with the opportunity to provide meaningful consent. This means that the consenting individual knows what, why, how, when, and where their personal information will be collected, used, accessed, disclosed, and stored. Consent should not be a one-time occurrence, where individuals agree to the terms and conditions and privacy policy at the outset but can be unilaterally changed by the tech provider without further notice to the user. There should also be separate consents for each specific public health purpose, meaning not just one blanket consent for the government to use the data for public health or research purposes. If the government wanted to collect information for any public health reason beyond contact tracing in the context of the pandemic, then express consent should be required from individuals. For example, in the context of the Ontario contact tracing application, health officials already mentioned the possibility of creating a contact tracing app that could later be used by the healthcare sector to follow-up and send prompts to people suffering from chronic physical conditions.

The fear of the slow creep goes beyond meaningful consent. Once collected, governments may find it tempting to share it with other agencies like law enforcement or immigration enforcement. Data collected in the context of a public health emergency should absolutely not be shared with any other agency for any purpose. We need to ensure this to avoid the slow creep, where data originally collected for one purpose is later used for another purpose, especially if this includes linking with other databases. We need to avoid indefinite government mass surveillance. Any data collected in the application should be firewalled so that it is not accessible by service providers or other organizations.

There needs to be strict limits on the collection, use, disclosure, and retention of personal information. The government needs to ensure that only the minimal amount of data required is collected, that it is stored on individuals phones rather than a centralized database, and deleted as soon as it is no longer necessary for the purpose of the pandemic. Key questions to answer include: Once data is collected, who will have access to it? What can they do with it? Can it be shared with private companies or government agencies like law enforcement? Can it track who people visit and possibly use that information against people? Can it be used to identify how people congregate? Will the data be linked to other databases?

These are important questions to answer before any nation-wide app is rolled out. The public and independent oversight agencies need to be meaningfully consulted in an accountable and transparent process to ensure the privacy rights of people living in Canada are protected. The BCCLA will continue to closely monitor the implementation of any contract-tracing application and advocate against invasive digital surveillance.

< class="what-entry-title">Motion to End Street Checks Going to Vancouver City Council>
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If you are in Vancouver, there is a motion regarding street checks going to City Council on Tuesday, July 7th. The motion is B2 Ending Street Checks in Vancouver.

Because City Council does not have explicit jurisdiction to do so itself, the motion calls on City Council to direct the Vancouver Police Board to prioritize ending street checks. The motion is not as strong as we would like, so it is important for City Council to make clear that its political priority is to end police street checks and to hear from us so that this motion passes.

BC Civil Liberties Association, Black Lives Matter-Vancouver, Hogan’s Alley Society, Union of BC Indian Chiefs, and WISH Drop-In Centre Society are calling for an END to police street checks in Vancouver and across BC.

Street checks are racist, specifically anti-Indigenous and anti-Black, harmful for low-income people, and fundamentally illegal. We need to end them now! Our goal is to have 50 speakers on this motion; will you be one of the speakers calling for an immediate end to street checks?

Speaking to City Council:

  • Sign up online by TUESDAY JULY 7 at 8:30 am and select Motion B2 here. It gives you the option of hearing by phone or in-person; in light of COVID-19, we recommend via phone.
  • You will be called in the order in which you registered. You will have five minutes to speak as an individual or eight minutes on behalf of an organization.
  • We need your voice; be yourself. Emphasize that street checks are a racist, harmful, and illegal police practice that must end in our city and across the province.
  • You can submit comment online or written submissions by Monday, July 6 if you prefer not to speak here.
  • Watch online on Tuesday, July 7th starting at 6 pm here.
< class="what-entry-title">Welcome to Our New Summer Law Students!>
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We’re pleased to welcome our new Summer Law Students, Harry Critchley and Leila Nasr to the BCCLA team! Please join us in extending them a warm welcome, and learn more about them below.


Harry Critchley

Harry joins the BCCLA as a summer law student. He recently completed his first year of law school at Dalhousie. Harry began his career working with children in care in Nova Scotia, then transitioned into a staff/teaching role at Dalhousie University. From there, he was seconded to the Nova Scotia Community College (“NSCC”), where he helped develop and manage a transition-to-college program for people in provincial jail. While working at NSCC, he completed his Master’s degree in Philosophy and Law at Queen’s, writing his Master’s thesis on systemic gaps in perinatal care delivery in Ontario jails. Most recently, he worked at the Access to Justice and Law Reform Institute of Nova Scotia, where his primary research areas included family law and poverty law. Harry brings over six years experience volunteering and delivering educational programs in provincial jails, and sits on the Board of Directors for the Elizabeth Fry Society of Mainland Nova Scotia, the East Coast Prison Justice Society, and the Burnside Prison Education Program. He is excited to join the BCCLA this summer, and looks forward to expanding his areas of interest alongside such a wonderful team of brilliant advocates.


Leila Nasr

Leila joins the BCCLA as a summer law student. She recently completed her first year of law school at UBC, and brings experience in human rights advocacy, research, communications and media relations. Leila began her career in the humanitarian sector in the occupied Palestinian territories, conducting training for young adults on how to monitor and record human rights violations by soldiers in their communities. She later completed her Master’s degree in Human Rights at the London School of Economics and Political Science, and gradually turned her focus to domestic civil liberties advocacy, focusing on Canada’s religious minorities and racialized communities. Through this work, she gained exposure to urgent issues like Islamophobia; the disproportionate securitization and over-policing of Muslim, Black, Middle-Eastern and South Asian communities; and hate crimes and hate speech against racialized Canadians. She is excited to join the BCCLA this summer, and looks forward to expanding her areas of interest and expertise alongside the team.


We are so excited to have them as a part of our team this summer! 

< class="what-entry-title">We’re hiring an Articling Student.>
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The BCCLA is seeking an Articling Student to work in the BCCLA’s four core program areas, with an emphasis on litigation. Under the supervision of the student’s principal, the BCCLA’s Executive Director, and working frequently with the Litigation and Policy Directors, the articling student will assist and conduct litigation in a diverse range of practice areas including constitutional, criminal, and administrative law. The articling student will also undertake legal and policy research, draft legal and policy documents and engage in advocacy and education on behalf of the BCCLA.

We are looking for an articling student to start in October 5, 2020 (i.e. interested 3L students should apply).

Learn more and apply here.

The BCCLA is committed to building an inclusive and diverse workplace, and strongly encourages applications from all qualified applicants. Applicants from traditionally underrepresented or marginalized groups including Indigenous people, people of colour, and LGBTQ+ people are welcome to self-identify, should they feel comfortable in doing so, in their cover letter.

This is a 12-month articling student position (including the duration of the student’s PLTC participation) with a salary of $46,500; employer coverage of PLTC fees; and an extended benefits plan. This position is normally based at our office in Vancouver at #306-268 Keefer St. In light of COVID-19, this position’s work will be performed remotely until distancing measures are lifted; a laptop and access to all required platforms will be provided. The BCCLA will try to accommodate alternate arrangements wherever possible, in compliance with WorkSafeBC guidelines.

The deadline for applications is June 21, 2020 at 11:59pm.

< class="what-entry-title">Tackling Money Laundering In BC: What Is At Stake For Our Civil Liberties?>
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Left unchecked, money laundering has significant social and political consequences, but our attempts to tackle this problem could compromise our rights.

Photo: Province of British Columbia

 This week, the BCCLA is participating in the Cullen Commission of Inquiry into Money Laundering in BC, where we will work to ensure that the rights and liberties of ordinary citizens are taken into account in governmental and private sector efforts to combat money laundering. While we support the aims of the Inquiry, we remain concerned about the civil liberties implications of the measures proposed.

The Commission was established to inquire into and report on money laundering in BC and to make recommendations for anti-money laundering measures in the province. However, the Commission is considering some troubling anti-money laundering measures that include:

  • Increasing the amount and types of data collected and shared by public and private sector institutions.
  • Increasing the presence and powers of police and regulatory investigators in the gaming industry.
  • Expanding the use of invasive, rights-infringing measures such as civil forfeiture and introducing Unexplained Wealth Orders (“UWOs”), which allow for government confiscation of citizens’ property without due process

These types of recommendations have severe implications for the privacy rights and civil liberties of all Canadians, not just those who may be suspected of money laundering activity.  With these interests at stake, the participation of the BCCLA at the Commission is crucial. The BCCLA will be the only voice calling on the Commission to take into account the civil liberties and human rights of citizens in developing an anti-money laundering regime.   

Implications of Data Collection and Sharing

Photo: RCMP

The BCCLA has consistently worked to protect and advocate for the fundamental right of privacy, even as rapid technological advances in data collection and analysis threaten privacy rights like never before. The prevalence of data collection and tracking by government entities and private companies increases the risk that data will be used for profiling, unlawful monitoring of communities, immigration enforcement, be leaked, or otherwise exploited for improper purposes. The threat of profiling is significantly heightened, given FINTRAC rules that require reporting entities to flag transactions with a “foreign component.”

The BCCLA will appear before the Commission to argue that proper checks and balances must be put in place for anti-money laundering measures that involve data collection and sharing. Increased calls for data collection and sharing in the context of anti-money laundering initiatives must not unduly compromise privacy and other fundamental rights.

The Loss of Presumption of Innocence and the Potential for Racial Profiling

The BCCLA will also advocate against the use of civil forfeiture and the invasive tool of UWOs by the government. We have always been staunch opponents of civil forfeiture laws, pursuant to which an individual who has not been charged or convicted of a crime can lose their property to the government.

The BCCLA has spoken out against the incentive the law creates for police and government abuse, and the barriers to representation faced by those targeted by civil forfeiture orders, who are often low-income individuals.

UWOs measures are even more extreme than civil forfeiture. These orders raise profound civil liberties implications, including erosion of privacy rights, doing away with the presumption of innocence, and subverting the rights that shield people from unreasonable search and seizure. In the United Kingdom, UWOs have required that a person provide a detailed account of how they obtained a piece of property (real estate or goods) without the requirement that any criminal charges be filed.

The reverse onus scheme of UWOs would permit the province to exercise coercive state powers and obtain court orders against people without any evidence of wrongdoing.  There is also the risk that such orders could be used to unfairly target racialized individuals and groups, such as Chinese-Canadians or Chinese newcomers with assets in BC. The BCCLA intends to address the potential for, and negative impacts of, racial profiling in Anti-Money Laundering efforts at the Inquiry.

More Police, Less Accountability

Many of the recommendations for anti-money laundering measures call for significant increases in police powers and presence. The BCCLA has long been an advocate for police accountability and transparency. We have seen time and time again how problematic policing policies and practices can lead to abuse and hurt citizens and society. 

At the Inquiry, the BCCLA will call for accountability mechanisms for policing and police misconduct. The BCCLA will also call for independent research and analysis on the efficacy and potential impact of proposed calls for more policing. It is critical to ensure that policing units assigned to casinos and related gaming activities are not created or expanded unnecessarily and that they do not operate in a rights-infringing manner. 

Anti-money laundering measures will affect the majority of the population, not just those suspected of money laundering activities. The BCCLA will work to ensure that the implications for the rights and liberties of all form an essential part of the analysis in developing an effective Anti-Money-Laundering regime. 

< class="what-entry-title">“The Pandemic is a Prism:” Civil Liberties and the COVID-19 Crisis>
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Reading the news these days is like flipping through a dystopian novel, with the pandemic producing anxiety in all of us. Crises like this one are times of upheaval, of uncertainty, and also, of urgency. Now more than ever, protecting civil liberties and human rights is imperative, and it has been a busy time at the country’s oldest civil liberties organization.

Rights During the Pandemic

We are receiving many emails about the changing state of government policies at this time, such as privacy rights and policing measures, with questions about whether governments have struck an appropriate balance in protecting public health and our fundamental rights.

We are actively monitoring government measures, like changes to privacy, so we can respond to unreasonable breaches of civil liberties:

  • Digital Privacy: We are in discussions with government officials about privacy rights, contact tracing apps, and digital surveillance. We are calling for measured and justifiable responses when considering enhanced digital surveillance or data collection.
  • Know Your Rights: What exactly is an emergency order? There are news stories about police ticketing blitzes in different provinces, but what authority do officers have to enforce public health orders in BC? Can landlords compel or share private tenants’ medical information? To make sure people are equipped with information during the pandemic, we have produced a series of free legal education factsheets.  
  • Access to Justice: We are part of the new provincial Attorney General’s Justice COVID-19 advisory group to support government responses and courts in minimizing the impact on the justice system. The closure of courts is having a deep impact on those going through the criminal justice system and on women and gender diverse people experiencing family violence, and we want to ensure access to justice in a timely, safe, and accessible way.

Social Distancing Doesn’t Break Social Solidarity

This pandemic is a prism, refracting back to us the existing inequities of our society, and placing a disproportionate burden on precarious workers, seniors and elders, people with disabilities, refugees, prisoners, homeless people, women and trans people, and Indigenous communities.

The pandemic has also revealed that to keep any one of us safe and to flatten the curve of the virus spreading, we must keep every one of us safe. Here is some of our advocacy alongside many local and national groups to ensure no one is left behind during this difficult time:

  • Prisoners Rights: Prisons continue to be a dangerous hotspot for COVID-19 transmission, and we are deeply troubled that the government and Correctional Service of Canada have taken an entirely passive approach, or are relying on harsh medical isolation that is indistinguishable from solitary confinement. One month ago an incarcerated person at Mission prison died from COVID-related complications and we are pressing for a full and public Coroner’s inquest to ensure similar deaths are prevented. We are also calling for the immediate and safe release of prisoners who are releasable, health protections for people incarcerated in and/or working in prisons, and necessary legal accommodations for Muslim prisoners during Ramadan. In the courts, though we are disappointed that an important constitutional challenge about Canada’s flawed prison needle exchange program was dismissed, we are pleased the federal government has dropped its appeal of our historic win striking down Canada’s cruel and unconstitutional solitary confinement laws.
  • Decriminalization of simple drug possession: As the pandemic and the overdose crisis sweep across Canada, there is a pressing need to adopt evidence-based measures that treat drug use as a matter of public health rather than criminal justice. In light of the pandemic, we are calling for a federal exemption for simple drug possession from drug laws.
  • Accountability at the Border: The federal government has barred refugee claimants from entry throughout the land border, rather than ensuring they are included in public health responses and offered protection from persecution. We are urging the government to protect the essential movement of refugees by reversing this decision. We are also horrified as revelations of gross misconduct by Canada Border Services Agency (CBSA) officers have recently surfaced – ranging from sexual harassment to excessive use of force, resulting in over five hundred investigations. We are determined as ever to keep pushing for independent, civilian oversight of CBSA.
  • Safety for people in homeless encampments: We are urging governments and police agencies to not enforce a Ministerial order forcing the eviction of homeless encampments. In the absence of adequate housing for all, we are highly concerned about the well-being of people, disproportionately Indigenous, being displaced and evicted from encampments under the threat of criminal sanction. We are also urging municipalities to suspend enforcement of bylaws requiring homeless people to move from parks in the daytime, which essentially prevents them from sheltering-in-place, and to not seize peoples’ shelters and belongings.

During these challenging times, we will continue our critical work to protect and expand civil liberties and human rights for all.

< class="what-entry-title">Pandemic Triggers British Columbia to Alter the Legal Landscape for Personal Information Sharing beyond Canada’s Borders>
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While our new reality has brought the implementation of government measures to encourage social distancing, such as the closure of restaurants and playgrounds, government actions impacting privacy rights have been more obscure. Governments have been bending the rules around how the collection, use, and sharing of personal information is protected and privacy maintained. 

This blog will help you understand what the government of BC has done to temporarily adjust the privacy laws that apply to its ministries as well as other public entities like health authorities, and school districts. This is my interpretation of an order passed in March by BC’s Minister of Citizen Services, impacting the Freedom of Information and Protection of Privacy Act.

Data Residency

Before I jump into my review of the order, I wanted to set out what data residency is and why we embrace it.  BC is one of the few jurisdictions in Canada that has embedded the principle of data residency into the privacy laws binding the government. This means that any personal information collected by public bodies always has to stay within Canada. Given the fact that so much government administration is now digital, public bodies in BC must ensure that computer systems used for the collection, storage or use of personal information must use servers located in Canada. Privacy advocates champion these rules because it helps to ensure that any stored personal information remains subject to Canadian laws, enabling individuals to hold the government accountable should there be a privacy breach.

Health Care Bodies Sharing Information Outside Canada Re: COVID-19

The first part of the order talks specifically about sharing information outside of Canada – including health information – on the condition that sharing the information is necessary for communicating with individuals regarding COVID-19, supporting a public health response to the pandemic or coordinating care during the pandemic. 

Ordinarily, the law only allows this information to be shared within Canada. However, the order permits healthcare bodies—like hospitals—and health ministries and authorities to use this mechanism to share information beyond our national borders, but it expires on June 30, 2019.

Furthermore, personal information may only be shared for the purpose for which it was obtained/compiled or for a use consistent with that purpose, or to an officer/employee of the public body or to a minister, if the information is necessary for the performance of their duties. This limits the scope of what can be shared. We’re always happy to see limitations and conditions on the sharing of personal information.

Now, this latter part strikes me as a bit odd, it isn’t immediately obvious why these conditions would be met right now. Why would an officer or employee or a Minister of a BC public body need to get information while outside of Canada? However, considering how quickly the self-isolation rules came down and how they vary around the world, it may be that some key health officials who work for public health bodies in BC may be working outside of Canada right now.

The part that raises the most concern is that it allows the public health bodies to share personal information for “the purposes of communicating with individuals respecting COVID-19.” This seems a little broad as it may open the door to sharing with any individual, depending on interpretation. There is some comfort in recalling the added limitation– that the personal information can only be shared “for the purpose for which it was obtained or compiled.” This may mean that this mechanism was needed to simply tell people who were tested for COVID before leaving the country, whether or not their test is positive. On the other hand, it may allow for relatives/guardians of COVID-19 victims who aren’t in Canada to have test results or treatment plans shared with them. Although it may seem alarming at first, there could be very valid reasons for creating this new avenue of personal information sharing in the face of a pandemic when people and communities are as mobile as we are.    

Another obvious reason for this portion of the order is to allow some planning with neighbouring jurisdictions (states) about coordinating care and supporting public health responses.  Arguably, “bulk data”, like the number of infected persons and their postal codes, is never completely anonymized. As a result, the government may be taking an abundance of caution to ensure that they can share broader information, like where the infection hotspots are, and which hospitals are at capacity, with counterparts in the USA without running afoul of privacy law.

Disclosure of Personal Information Outside of Canada Through Third-Party Tools

It is clear to me that the second portion of the order is only linked to the COVID-19 pandemic in that thousands of civil servants are now working from home (or wherever they happened to be when they were ordered to shelter in place). 

This part of the order is clearing the way for those civil servants who are now outside of Canada to be able to keep doing their jobs remotely.  The nature of the personal information would change depending on the work being done, so it could be very sensitive personal health information or other very sensitive personal information about children in care, student performance or vaccination records, employee hiring and firing, social assistance applications, etc.  We are happy to see some conditions limiting disclosure by requiring that “any disclosure of personal information is limited to the minimum amount reasonably necessary for the performance of duties by an employee…”

The BCCLA will continue to monitor the implementation of this order—and future ones—to ensure that privacy rights are respected and are properly balanced with other competing interests.  

Read more about the BCCLA’s COVID-19 response here.

< class="what-entry-title">COVID-19 highlights the importance of free expression rights for healthcare workers>
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In the wake of COVID-19, it is important that our healthcare workers have free speech protections.  Responding effectively to a health crisis requires the free flow of information, especially from those with insider knowledge. 

A growing number of British Columbian nurses have been taking to social media to express their concerns about what they are seeing from the front lines of the COVID-19 crisis. Nurses have urged people to stay home, called for donations of personal protective equipment (PPE), and spoken out about the dire state of hospitals.

One nurse at Surrey Memorial Hospital took to social media to speak to the conditions of the hospital. “We are seeing a lot of people walk through these doors with COVID-19 symptoms,” she said. “We have a lot of people in critical care currently at the hospital. Our wards are getting full.”[1]

However, a spokesperson for the Fraser Health Authority quickly refuted the nurse’s statement and said that her call to action was inaccurate and misinformed, writing “[i]t’s an unfortunate video that doesn’t reflect the situation accurately.”  The President of the B.C. Nurses Union also spoke out against the posts, stating:

“I’m asking every one of our members at this time to refrain from posting public messages of this nature, even if they are intended to reinforce the message of the public health officer… My message to all nurses is this: please focus on your patients and providing the best quality patient care you can and let the provincial health officer focus on the message to the public.”[2]

Our Strom Case Intervention

Photo: Hush Naidoo

The BCCLA has long been a strong advocate for the free expression rights of health care professionals.  Last year, the BCCLA intervened in an important case at the Saskatchewan Court of Appeal regarding the censorship of a nurse by her professional body.  In Strom v. Saskatchewan Registered Nurses’ Association, Ms. Strom, a nurse in Saskatchewan, was found guilty of professional misconduct and ordered to pay a $26,000 fine and cost award by the Saskatchewan Registered Nurses’ Association (SRNA) for comments she made on Facebook that were critical of the care her deceased grandfather received at the end of his life.  The Saskatchewan Court of Queen’s Bench upheld this disciplinary decision, finding it to be reasonable.  The Saskatchewan Court of Appeal heard the appeal on September 17, 2019, and has reserved its decision.  

If the Court of Appeal chooses to uphold the disciplinary decision, it will send a message to nurses that they are not free to criticize aspects of the healthcare system. The BCCLA intervened to fight against this unjust result and to advocate for the free expression rights of nurses. We spoke to the potential chilling effect and improper encroachment on private life that results from professional regulators disciplining their members for off-duty speech. Professionals, such as nurses, must feel free to speak to the public about their concerns with our public systems.

The BCCLA’s submissions at the Court of Appeal emphasized that freedom of expression should not be limited by professional discipline, and regulatory bodies such as the SRNA must not be empowered to prevent nurses from speaking up as individuals about public institutions.  Disciplining members who speak out would set a dangerous precedent that could prevent nurses from advocating on issues of public importance.  We eagerly anticipate a ruling in the Strom case that recognizes these principles.

Free Expression During COVID-19

The BCCLA will work to protect and advance the rights of those working on the front lines of the COVID-19 pandemic.

A nurse working in a downtown Toronto hospital posted several videos to Facebook citing a dire need for supplies. “Me and my colleagues need your help. We are running out of supplies; sanitizer, gloves, masks, face shields,” she said.[3]

Photo: Nicholas Bartos

The hospital, however, was once again quick to refute the nurse’s message.  A spokesperson for the hospital’s management network stated: “We do currently have sufficient supplies of personal protective equipment and supplies, however, this pandemic is a fluid, changing situation.” On the website for the management network, however, there is a public request for masks (N95 and surgical), goggles, isolation gowns, gloves, face shields and scrubs.[4] 

Many of such nurses’ videos have since been removed, likely in response to backlash from their employers or regulators.  It has been reported that nurses in Ontario hospitals are being told not to speak out about shortages of N95 masks and other PPE.  One Ontario nurse stated “[h]ospitals are telling us to keep quiet about this information and even threatening to fire staff should we speak out on social media or to the public.”[5]

Across the world, healthcare workers are facing consequences for speaking out about their working conditions.  In the United Kingdom, doctors and nurses are being warned by hospitals and other National Health Service bodies not to raise their concerns about widespread shortages of PPE publicly, threatening possible disciplinary action.[6]

In the US, nurses have spoken out over inadequate PPE and the limited means they have to raise concerns within their chains of command.  Nurses have been told that they could be disciplined for talking to the media, and some have stated that they had been explicitly warned about that in emails sent by hospital administrators.[7]

Healthcare workers are the heroes of the COVID-19 pandemic; they deserve not to be silenced.

Read more about the BCCLA’s COVID-19 response here.


[1] Ibid.
[2] Ibid.
[3] “‘We are in dire need’: Toronto nurse sends public video plea for supplies from inside a COVID-19 unit”, March 31, 2020, https://nationalpost.com/news/we-are-in-dire-need-toronto-nurse-sends-public-video-plea-for-supplies-from-inside-a-covid-19-unit
[4] Ibid.
[5] “‘I was made to feel belittled’: Nurses reveal fears working on the front lines of COVID-19 pandemic”, April 3, 2020, https://www.cbc.ca/amp/1.5518900?__vfz=medium%3Dsharebar&__twitter_impression=true
[6] NHS staff ‘gagged’ over coronavirus shortages, March 31, 2020, https://www.theguardian.com/society/2020/mar/31/nhs-staff-gagged-over-coronavirus-protective-equipment-shortages
[7] “Expired Respirators. Reused masks. Nurses offer sobering accounts of what could come” April 3, 2020, https://www.motherjones.com/coronavirus-updates/2020/04/expired-respirators-reused-masks-nurses-offer-sobering-accounts-of-what-could-come/

< class="what-entry-title">“No One Should be Left Behind:” BCCLA Update on COVID-19>
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Dear BCCLA members and friends,

Normally, my walk to work takes me through Vancouver’s Downtown Eastside and Chinatown – some of our city’s busiest and most vibrant neighbourhoods. Now, like so many of you, I am working remotely from home. The BCCLA has instituted remote work best practices and increased accommodations for work and paid sick leaves to prioritize public health and the well-being of our staff team through this time.

Following the direction of public health experts, we have also made the necessary decision to cancel our upcoming Liberty Awards Gala on May 8th, 2020 and to move the event to 2021. Even before the government directive against large gatherings, the BCCLA was taking steps to cancel our event to ensure we flatten the curve to lessen the impact on our public healthcare infrastructure and on frontline workers.

The BCCLA extends our solidarity and support to our community partners, to frontline care workers, and to the most marginalized in our communities including precarious workers, migrants, prisoners, homeless people, seniors, people with disabilities, and Indigenous communities who are bearing the brunt of the COVID-19 crisis.

All government measures should be non-discriminatory, protect the human rights of the most vulnerable, and not unreasonably limit fundamental rights and civil liberties.

The impacts of COVID-19 are not felt equally. Addressing social determinants of health, such as income, working conditions, racism, colonization, disability, gendered violence, safe housing, access to social supports and strengthened public infrastructure, are all vital parts of a public health response to COVID-19.

We are unequivocal that no one should be left behind.

Governments are also implementing a number of extraordinary measures such as closing the border to many Canadians and non-Canadians, and contemplating emergency orders that grant exceptional powers. We remain vigilant to ensure fundamental rights are not being unreasonably or unjustifiably limited. Given the reality of over-policing of poor and racialized communities, the blunt power of any enforcement measures must not further criminalize these communities or those who simply don’t have the means to self-isolate, such as homeless people or women in unsafe housing.

We are particularly disturbed and disappointed about the federal government’s decision to turn away refugees arriving at the US-Canada border. This violates our legal obligations to not turn away refugees seeking safety from violence and persecution. Many refugees are on death-defying journeys and as the UNHCR, the UN Refugee Agency, reminds all states “imposing a blanket measure to preclude the admission of refugees or asylum-seekers, or of those of a particular nationality or nationalities, without evidence of a health risk and without measures to protect against refoulement, would be discriminatory and would not meet international standards.” During this pandemic, we can maintain physical distance and enact necessary health measures without violating our legal and moral commitments to refugee rights.

Now more than ever, protecting civil liberties and human rights is absolutely imperative. Here is some of the work we have been undertaking in the past few months.

Prisoners’ Rights

This month we intervened alongside many other organizations, such as the Canadian HIV/AIDS Legal Network, in a precedent-setting case about the constitutional right of prisoners to access prison needle exchange programs as a necessary public health intervention. We know prisoners are particularly vulnerable to violations of their constitutional rights because the government has total control over every aspect of their daily lives, including their access to health care.

In the context of the COVID-19 crisis, we cannot forget the unjust conditions, including lack of adequate healthcare, faced by people caged behind bars. Our governments must immediately release prisoners who are releasable and reduce the number of people in prisons, jails, juvenile detention facilities, and immigration detention centers as an urgent priority.

Photo by Matthew Ansley 

The BCCLA remains committed to upholding the constitutional rights of prisoners alongside advocating for alternatives to incarceration, especially given the gendered colonial crisis of incarceration experienced by Indigenous women, girls, trans and two-spirit people. Later this year we will be going to the Supreme Court of Canada to argue that indefinite solitary confinement violates fundamental Charter rights and must be abolished in Canada.

Solitary confinement is a form of torture, and we will not back down from taking this fight to Canada’s top court.

Migrant Rights

Last week, the BCCLA joined with dozen of organizations and community groups, such as Sanctuary Health, in calling for an end to the three-month exclusionary wait period preventing new immigrants, migrant workers, returning Canadians, and even some newborn Canadian babies from receiving health care coverage. Especially amidst a pandemic, we must ensure access to universal healthcare and testing procedures for all residents.

We call for the waiting period to be eliminated immediately.

Last month, Parliament tabled Bill C-3 proposing the establishment of an independent and civilian review and complaints function overseeing Canada Border Services Agency (CBSA).  BCCLA has been advocating and campaigning for CBSA oversight for the past several years, and you can count on us to be making submissions on this Bill. Every major police agency in Canada has some form of independent oversight. Yet, despite its immense powers, there has been no independent civilian oversight body to review CBSA policies or investigate officer misconduct.

You can read my interview “CBSA is Not a Fair or Accountable Agency: Why We Need Canada Border Services Agency Oversight” with Mexican refugee Karla Lottini about her personal experiences on why CBSA oversight is necessary and with BCCLA Policy Staff Counsel Latoya Farrell about CBSA oversight (and its shortcomings) proposed in Bill C-3.

As Latoya states, “It is imperative that the government establish a meaningful and robust independent oversight body so that the most vulnerable in our society have their rights, dignity, and humanity protected when interacting with an agency with as much power as the CBSA.”

Police Accountability

Closely related to CBSA oversight is our ongoing work to ensure law enforcement accountability, which has become even more pressing in light of recent revelations that the RCMP have been routinely using facial recognition for up to 18 years!

In unceded Wet’suwet’en territories, where the nation has been in the national spotlight for the assertion of their Indigenous rights and laws, we have been working closing with Wet’suwet’en Hereditary Chiefs and the Union of BC Indian Chiefs to call for an investigation regarding the improper and unlawful actions of the RCMP.  

RCMP operations in Wet’suwet’en territories have been a clear exercise of overbroad and unlawful policing power, with the impact of criminalizing Indigenous peoples on their lands and violating the UN Declaration on the Rights of Indigenous Peoples.

Here, in Vancouver, we worked with the Union of BC Indian Chiefs and Black Lives Matter-Vancouver to oppose the findings and recommendations of a recent Vancouver Police Board Street Check Review. The VPD Street Check Review assumes that street checks are valuable, despite the lack of any evidence to support the claim. We also disagree with the review’s finding that the statistical evidence of disproportionate over-policing is “plausible.” Indigenous and Black people are significantly over-represented in the numbers of street checks conducted by the VPD. This undermines the claim that VPD are engaged in proactive policing and, instead suggests that race-based over-policing and pretext policing are occurring.

We will continue to oppose discriminatory and unnecessary VPD street checks.

Patients’ Rights

Last, but certainly not least, we will continue to advocate for medically-assisted death with dignity and for patients’ rights. Earlier this month, the federal government tabled Bill C-7 to amend Canada’s medical assistance in dying law. This came after the BCCLA litigated and the Supreme Court of Canada unanimously decriminalized assisted dying for seriously and incurably ill people in 2015.

As our Litigation Director Grace Pastine puts it, “The new MAID law is a mixed bag for civil liberties and patients’ rights.” Many patients will now face additional, confusing hurdles and intolerable wait periods that make it impossible for them to have a compassionate dying process.

The BCCLA has been urging the government to address these flaws in the legislation and make amendments before the bill becomes law.

And if all that wasn’t enough, we have been working hard to ensure corporations cannot benefit from the protection against cruel and unusual treatment or punishment as set out in s. 12 of the Charter.

Yes, you read that right. A company is arguing it has the right to section 12 protection in order to avoid paying a fine it is facing for violating Quebec’s Building Act. The company argues the fine is too high, and therefore cruel and unusual punishment. The BCCLA was at the Supreme Court of Canada to argue in this significant appeal that in fact, no, protections against cruel, inhuman, or degrading treatment or punishment only apply to human beings.

As BCCLA Litigation Staff Counsel Jessica Magonet argues, “Corporations can’t benefit from these rights because their purpose is to protect human dignity and prevent physical or psychological suffering.”

We are proud of our work, which is national in scope – from opposing Alberta’s Critical Infrastructure Defence Act, which proposes shockingly anti-democratic state infringement on civil liberties and human rights, to opposing the definition adopted in Ontario’s Combating Antisemitism Act, which would greatly narrow the scope of free expression and political expression. We will continue our critical work during these challenging times. Our whole team continues to be guided by an ethic of solidarity, justice, and equity, and this pandemic has only reminded us of how vital it is that we protect civil liberties and human rights for all. If you are not yet a member, I invite you to become one and thank you for your ongoing support of our work.

Sending good wishes,

Harsha Walia

Executive Director