Join us in welcoming the new members of BCCLA team. Amy and Melissa will support us in virtual engagement, outreach, and event planning. We are very excited to have them on board! Learn more about them below.

Melissa is currently in her final year at the University of British Columbia, Vancouver, completing a BA with a major in Political Science and a minor in Law and Society. She has focused her academics in critical gender, race, and social justice studies, and is particularly interested in the ways political and legal institutions create or limit change in society. She is passionate about education, community engagement, and the law and how they intersect.

She also volunteers with the feminist legal organization West Coast LEAF as a Youth Workshop Facilitator. After finishing her BA, Melissa plans to go to law school and to continue working with similarly impactful organizations.
On weekends you can find Melissa serving brunch at a local, female owned restaurant in Kitsilano, or—when time permits— out enjoying the beautiful mountains in BC. Melissa is excited to be working at the BCCLA this winter and learn from such an accomplished team.

Amy is a recent graduate with a BA in Philosophy from Simon Fraser University, and her interest lie in jurisprudence, legal theories, and the intersectionality of law and philosophy. Graduating in the middle of the pandemic, she was inspired to pursue community engagement in this increasingly digital world. Her passion for equity, diversity, and inclusivity principles shaped her desire to be more involved with the youth community. From a course project, with a group of close friends, she is aiming to create an online youth community called Together Tomorrow Project to share stories and to learn from one another during these tiring times.

Amy is excited to support the work of capeless heroes at BCCLA with her experience in online engagement and youth engagement. She is currently working as an urban researcher with PIVOT 2020, and she aims to gain more professional experience before pursing for law school in the near future. When she’s not busy with Zoom calls, Amy enjoys brisk walks in Coquitlam parks.

The BCCLA is happy to welcome Stephen Chin to the team as our new articling student! Help us in extending a warm welcome, and learn more about him below. Welcome Stephen!

Stephen Chin, Articling Student

Stephen Chin joined the BCCLA team as an articling student in October 2020. He has received degrees in science, commerce, and law from the University of Alberta. He credits his interdisciplinary education for affording him the opportunity to navigate the complex dimensions of leadership at the Peter Lougheed Leadership College, and for stoking his interest in climate change litigation at the National University of Singapore. Informed by his prior experiences at a small governmental commission and a university ombuds office, Stephen is attentive to the space where fairness, privacy, and institutional policies intersect and collide with community interests. He remains endlessly fascinated with emergent technologies, and is always on the lookout for surprising and thoughtful podcast episodes.

We are pleased to have Stephen join our team, welcome!

Dear friends and supporters,

We are writing to you as the new, incoming President and Vice President of the BC Civil Liberties Association.

This may come as news to some of you, but Lindsay Lyster was appointed to the Supreme Court of BC in July! We are incredibly proud of the contributions Madam Justice Lyster has made to the organization over many decades – as pro bono counsel on many of our interventions and as the Board President for seven years. As well in September, we congratulated Caily DiPuma as she accepted a new position with the BC Attorney General’s office. Caily served as the Board Vice-President and stepped up as President last year.

We congratulate and thank Caily and Lindsay for their many important contributions to the Associations’ achievements. Best of luck to both as they bring their strong commitments to their new positions!

Due to the requirements of their new positions, Lindsay and Caily had to step away from the Board, and we had some big shoes to fill. We are honoured to accept the Board’s nomination as the President (David Fai) and Vice-President (Haran Aruliah). David is a Vancouver-based lawyer and brings decades of experience in civil liberties and criminal law to the organization. He has been a director of the Board for five years. He is a strong advocate and brings a keen sense of justice to the role. Haran has been a director for two years and is a lawyer and chief technology officer for a local software company. His concerns at the intersection of law and technology touch on many emerging civil liberty issues.

While there has been a transition at the Board level, the organization’s priorities and work continue ahead at full pace. Our responsibility to promote, defend, sustain, and extend civil liberties and human rights continue to be guided by our 2020-2025 strategic plan.

A small sampling of our recent and upcoming work includes:

• Interventions at the Supreme Court of Canada in criminal justice reform in CP (arguing for a young persons’ right to appeal), Chouhan (argued the abolition of peremptory challenges reduced jury diversity), and Zora (persons should only be convicted of bail violations when they actually, not ‘ought’ to, know they’ve breached a condition)
• Three educational webinars on policing available online here
• Participation as the only civil liberties organization in the Cullen Commission of Inquiry into Money Laundering in BC.
• Victories for freedom of expression at the Supreme Court of Canada in an anti-SLAPP case, and at the Saskatchewan Court of Appeal protecting healthcare workers’ right to criticize the health care system.

These are not easy disputes, but we remain uniquely situated to champion the cause. Despite the challenges 2020 presented, we have had numerous triumphs. Most recently, we secured an important victory for human rights at the Supreme Court of Canada, reinforcing that s.12 of the Charter – protection against “any cruel and unusual treatment or punishment” – does not apply to corporations.

We are grateful to help the Board navigate these challenges and recognize this is only possible with the hard work and determination of our staff, volunteers, and supporters’ commitment.

In solidarity,

David Fai
President

Haran Aruliah
Vice-President

In an important victory for free expression rights, the Supreme Court of Canada has issued strong rulings supporting the broad scope of Ontario’s anti-SLAPP suit law. The BCCLA intervened in these significant court cases to support freedom of expression and to discourage litigation by powerful private actors that curbs the free expression of citizens in important public interest debates. The BCCLA was represented by pro bono counsel Maia Tsurumi, Barrister and Solicitor, and Peter Kolla of Goodmans LLP. Peter Kolla, reflects on the importance of these cases.

On September 10, 2020, the Supreme Court of Canada released its decisions in 1704604 Ontario Ltd. v. Pointes Protection Association and Bent v. Platnick. These cases addressed the Supreme Court of Canada’s interpretation of Ontario’s “anti-SLAPP” legislation.  Strategic lawsuits against public participation, known by the acronym “SLAPPs”, are legal proceedings brought not to advance a real claim, but rather to try to chill freedom of expression and prevent people from participating in public debates on matters of public interest.

Recognizing the harm caused by SLAPPs to freedom of expression on matters of public interest, the governments of Ontario, British Columbia and Quebec have passed laws aimed at stopping SLAPPs. These laws, known as anti-SLAPP legislation, provide defendants with an expeditious route to have those lawsuits dismissed at an early stage. 

The BCCLA has long been a proponent of anti-SLAPP legislation.  When two cases about the interpretation of Ontario’s anti-SLAPP legislation were heard by the Supreme Court in November of 2019, the BCCLA intervened in the proceedings in support of a robust interpretation of the legislation that would provide broad protection to freedom of expression on matters of public interest.  These cases were the first time that the Supreme Court, Canada’s highest court, has interpreted anti-SLAPP legislation.

In its decisions, and in particular the Pointes Protection case where a unanimous Supreme Court set out the principles for how to interpret the Ontario legislation at issue, the Supreme Court powerfully endorsed the importance of protecting freedom of expression on matters of public interest. 

Important aspects of the Supreme Court’s analysis were consistent with the points argued by the BCCLA, which focused its submissions exclusively on the interpretation of the weighing provision in s. 137(4)(b) of the Courts of Justice Act.  The Supreme Court in Pointes Protection called that weighing provision “the heart of the legislation”, the “crux of the analysis”, and the “core” and “key portion” of the analysis. 

The Supreme Court specifically noted that the BCCLA had argued that this provision, which requires that two separate public interests be weighed against each other, should not be called a “balancing exercise”.  The BCCLA argued the express statutory language did not seek to balance those two public interests (which would undermine the protection to freedom of expression on matters of public interests), but rather to weigh them and if they are equally balanced then the expression wins.  The Supreme Court agreed, holding:

Here, the provision expressly requires that one consideration “outweig[h]” the other. I am of the view that this is substantively different than if the statute had required that the two considerations be balanced against one another. The difference can be illustrated by the following quantification of weighing and balancing: where one factor must outweigh the other, the ratio between the two must be at least 51/49; in contrast, where one factor must be balanced against the other, a ratio of 50/50, or even 45/55, might be sufficient for a judge to rule in favour of the former. The word “outweighs” necessarily precludes such a conclusion. [emphasis in original]

The Supreme Court’s ruling was also consistent with other points argued by the BCCLA. 

The BCCLA had argued that it was incorrect to supplanted the weighing exercise required by the legislation with four “indicia of a SLAPP suit”, as that would incorrectly curtail the broad protection to freedom of expression on matters of public interest set out in the legislation.  The Supreme Court’s decision said that that such indicia must be tethered to the text of the statute, and articulated a broad range of factors – not just four – that could be considered in the weighing exercise. 

The BCCLA also  argued that the Supreme Court should adopt an approach to the weighing analysis by assessing, on a spectrum from low to high, the two public interests.  The Supreme Court used the “spectrum” language in performing the weighing analysis. 

Finally, the BCCLA had argued that it was proper for courts when conducting the weighing analysis to look at the motive and quality of the expression at issue, and the Supreme Court’s decision is consistent with that position.

Hopefully the Supreme Court’s decision will have two additional effects.  First, it could encourage other provincial governments to pass laws protecting freedom of expression on matters of public interest.  Second, it could encourage people to speak out on matters of public interest, with less fear that they will be targeted by a SLAPP lawsuit as a result of their expression. 

As Justice Suzanne Côté held for the Supreme Court in the unanimous ruling  in Pointes Protection, in a passage that highlights the importance of freedom of expression, “Strengthening the integrity of the justice system by encouraging truthful and open testimony is inextricably linked to the freedom of participants to express themselves in the forums concerned without fear of retribution.”

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

Our next stop is the Vancouver Police Board on Thursday September 17!

On September 17, we will be appearing as a Delegation to the Vancouver Police Board to drive home that the Board must order that police street checks be completely banned.

Banning street checks is a policy matter squarely within the jurisdiction of the Vancouver Police Board. Even if this was an operational decision, the BC Supreme Court has held in Bagnell v Taser International Inc. that “The [Vancouver Police] Board is ultimately responsible for all aspects of policing performed by the Vancouver Police Department, whether they are policy or operational matters.”

Further, under the Police Act, municipal police boards are required to “take into account the priorities, goals and objectives of the council of the municipality.” Section 26(4) of the Act also authorizes municipal police boards to “determine the priorities, goals and objectives of the municipal police department.” On July 22, Vancouver City Council unanimously passed a motion stating Vancouver City Council’s priority is to end the practice of street checks in Vancouver.

This City Council motion in Vancouver, and a similar one in Victoria, came on the heels of our open letter with 68 co-signatory organizations and a petition signed by over 8,000 people calling for an immediate municipal and provincial ban on police street checks.

Ending police street checks is only one part of the many actions needed to end the harms of policing, but it is a necessary part. Street checks are racist, specifically anti-Indigenous and anti-Black, harmful for low-income people, and fundamentally illegal. We need to end them now!

WHAT YOU CAN DO:

1. Help us get to 10,000 signatures on our petition to ban police street checks. Sign and share before September 15: https://act.bccla.org/banstreetchecks

2. If you are a Vancouver-based organization, add your name to our open letter calling for an immediate ban on police street checks. Email [email protected] to add your organization as a signatory to the open letter by September 15.

3. Watch the Vancouver Police Board meeting online on September 17, starting at 1 pm: https://vancouver.ca/police/policeboard/Meetings.htm

4. Sign up to appear as a Delegation at the Vancouver Police Board Meeting on September 17: https://vancouver.ca/police/policeboard/DelegationPolicy.htm. Please note that delegation spots are likely to be very limited, so email early and strongly consider appearing as a coalition with one representative speaking.

5. Send an email to the Vancouver Police Board [email protected]. Emphasize that street checks are a racist, harmful, and illegal police practice that must end in our city. Writing points to consider are available at https://bccla.org/our_work/police-street-checks-faq/. We need your voice; be yourself!

Download a PDF of this blog post here. 

The BC government has been given broad new emergency powers with the passage of Bill 19, the COVID-19 Related Measures Act. Under the Act, the government can temporarily change any legislation during an emergency, without any oversight from the public and without approval from the legislature. Although emergencies like the COVID-19 pandemic require quick decisions by the government, this Act lacks the safeguards required when the government is given such broad powers.

Generally, in our system of government, the legislature creates law, and the government ensures that it is carried out. The law-making process includes three readings of a proposed law, and debate amongst all members of the legislative assembly. This process is integral to maintaining the rule of law. It ensures that the public is aware of proposed rules before they become binding and can organize to support or oppose the law, or even ask for changes to it. It also allows elected officials to ask important questions to the governing party about the motivations and policies underlying the new rules.

Sometimes the legislature gives the government[1] permission to create regulations about certain issues. For example, under the Residential Tenancy Act, a landlord can only raise a tenant’s rent by a certain amount. The legislature gives the government the power to determine what that amount should be through regulations. It is usually easier for the government to change regulations than for the legislature to change legislation.[2] This system ensures that the government can update certain areas of the law over time, and go into more depth than what the legislature could do on its own. 

The COVID-19 Related Measures Act goes a step further. It changes the Emergency Program Act by creating a new set of powers. During a state of emergency, Cabinet can now create regulations that amend any piece of legislation, thereby filling the law-making role of the legislature. These new powers are worrying for several reasons.

1. The Act creates broad new powers for Cabinet.

According to the Attorney General, the COVID-19 Related Measures Act simply transfers powers from the Solicitor General (a particular minister in Cabinet) to Cabinet as a whole. But it’s unlikely that those powers existed in the first place.

When the Solicitor General previously made orders amending legislation, the ombudsperson investigated and found them unlawful. The Emergency Program Act did not give the Solicitor General the power to override legislation. The government disputes this, but it has not pointed to any legal authority to confirm its opinion.

Although the Attorney General has tried to comfort critics by stating that the Act merely transfers powers, it appears that it actually creates new ones.

2. The Act limits public accountability.

In the past, when the Solicitor General made orders amending legislation, there was no legal requirement to make those orders public. Fortunately, the new changes mean that future amendments will be done through regulations, which must be published.

With that said, regulations can come into effect immediately. As a result, the government can avoid public scrutiny until after legislation has been amended. The public won’t be made aware of changes through the traditional law-making process, and won’t have the ability to change the law before it comes into effect.

3. The Act leaves the government unaccountable to the legislature.

Through the Act, the legislature will only be able to access the regulation after it has already come into effect. The lack of review goes against ombudsperson recommendations that the government report any amendments to the legislature, and they should expire after a fixed number of sitting days.

In addition, there is limited accountability afterward. The regulations aren’t subject to automatic expiration or review. They can last the length of the state of emergency, which will persist as long as Cabinet renews it every 14 days.

As Paul Daly has argued, accountability during an emergency is more likely through political, rather than legal, avenues. For that reason, the government shouldn’t be able to bypass the legislature entirely. Expansive powers should be accompanied by some form of automatic expiry or review by the legislature.

4. The Act permanently expands emergency powers.

While some of the other changes in the Act are specific to the COVID-19 pandemic, section 9 permanently changes the Emergency Program Act. Future governments may use the new powers in response to new emergencies.

The Attorney General has said that the government is in the process of reviewing and overhauling the Emergency Program Act. However, we don’t know when that process will be finished. The promise of future changes provides little comfort from the hasty changes made by the COVID-19 Related Measures Act.

Cabinet can unilaterally declare a state of emergency, and under this new Act, it can amend any piece of legislation during the course of that emergency. The COVID-19 Related Measures Act gives Cabinet extensive powers with meagre safeguards. The government sometimes needs additional powers to respond to emergencies. But that shouldn’t override the need for good governance and accountability to both the public and the legislature.

[1] Government in this context refers to the executive council, a.k.a. Cabinet. Statutes passed in the legislature delegate law-making to the Lieutenant Governor in Council (all of Cabinet) or to a specific Cabinet Minister.

[2] This is because the process is very different; for the most part, regulations can be developed in secret by government, aren’t subject to a vote in the legislature, and only need to be published after they are approved.

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.

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.

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.

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!