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

CBSA officers. Photo credit: BC Emergency Photography via Flickr

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

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

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

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

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

Photo Credit: Ervins Strauhmanis via Flickr

Photo Credit: Ervins Strauhmanis via Flickr

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

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

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

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

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

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

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

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

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

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

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

CBSA badge. Photo credit: antefixus21 via Flickr

CBSA badge. Photo credit: antefixus21 via Flickr

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

Meanwhile here are two things to know:

  • We’re helping to share these FOI docs from the CBSA because they are full of information that will help you understand how the CBSA says it is supposed to be conducting its business from searches to detention and access to counsel. In our view, these kinds of policy documents are exactly the kind of material that should be pro-actively disclosed by the agency, helping people to understand their rights and to seek effective redress if those rights aren’t upheld.
  • The compelled password issue is not only not going away, it’s getting bigger by the moment. The Canadian Association of Chiefs of Police just decided to lobby for legislation that would give the police the ability to get a warrant to “compel the holder of an encryption key or password to reveal it to law enforcement.” There’s a really good analysis of that proposal here.  And if you have things to say on this topic – compelled passwords for CBSA or police – now is the time to say it! Public Safety’s cyber-policy consultation is happening right now and the window for comment is short.
< class="what-entry-title">Health and Human Rights in Prison: The Need for Prison-Based Needle and Syringe Programs>
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During the prison law seminar I took in law school, professor and prison justice expert Michael Jackson said something I’ll never forget. People are sent to prison as punishment, he told us, not for punishment.

That simple statement stuck with me. Prisons don’t have to be dangerous, cruel, filthy and overcrowded places for them to be extremely punishing experiences. The deprivation of liberty a prison sentence entails is the punishment, and it is punishing enough. Inmates need not be treated with additional harshness, and prisons must not be allowed to deteriorate into violent and dangerous places, in a misguided effort to see that people convicted of crimes receive an appropriate punishment for their actions.

prison-stock-photo

Photo credit: Alexandre Vanier

People do not surrender their human rights when they enter a prison. Yet Canadian prison policy is failing to uphold the human rights of inmates and is making prisons far more punishing places than they need to be. From the ongoing use of solitary confinement, a practice the UN says can amount to torture, to severe overcrowding and deplorable conditions, inadequate treatment and care for the mentally ill, a shocking over-incarceration of Indigenous people and increasingly dangerous conditions, Canada’s so-called “correctional” facilities tend to be anything but. Instead, goals of rehabilitating and preparing offenders for reintegration into communities are sacrificed in the name of cost-saving and administrative efficiency.

But we all pay a price when people emerge from prison sicker, angrier and more marginalized than when they went in. Problems in prisons and prison populations do not stay locked up behind the walls, but inevitably spill out into our communities.

A CRITICAL PROBLEM: HIV AND HEPATITIS C INFECTION RATES

One area where government and prison officials could take relatively simple and eminently sensible steps to address a critical problem in prisons – one with significant implications for public health – is in the area of HIV and hepatitis C infection. Rates of HIV and hepatitis C in federal prisons are vastly higher than in the rest of the population, and transmission of these diseases within prisons is occurring at an alarming rate. A Vancouver study estimated that incarceration more than doubled the risk of HIV infection for people who use injection drugs, and one in five HIV infections among people who inject drugs in Vancouver was acquired in prison.[i]

Sharing needles to inject drugs is a primary cause of the high rates of HIV and hepatitis C infection in Canadian prisons. As a result of criminalization of addiction and addiction-related behaviours and the insufficient resources dedicated to community-based treatment and support, our prisons are rapidly filling with people struggling with substance use problems. In particular, women and Indigenous people suffering from addiction are greatly over-represented in Canadian prisons.

While many people assume that drugs would not be available in such a secure and highly restrictive environment, illegal drugs can and do make their way into prisons. A 2010 survey by Corrections Service Canada found that 34 percent of men and 25 percent of women in federal prisons admitted to using drugs in the past six months, and 17 percent of men and 14 percent of women admitted to injecting drugs. Among the prisoners who reported having injected drugs, 55 percent of men and 41 percent of women used someone else’s needle, and 38 percent of men and 29 percent of women shared a needle with someone who has HIV, hepatitis C, or an unknown infection status.[ii]

Photo credit: Todd Huffman

Photo credit: Todd Huffman

NEEDLE EXCHANGES: VITAL HARM REDUCTION TOOL

Needle and syringe programs, often known as “needle exchanges”, are a vital harm reduction tool available in hundreds of communities across Canada. They are a cost-effective way of reducing the risk of infection from sharing used injection equipment, facilitate access to care and treatment, and have been supported by all levels of government. Prison-based needle and syringe programs (PNSPs) offer similar benefits in the many countries where they’ve been implemented, including Switzerland, Germany and Spain. They are supported by doctors and medical associations and hundreds of community organizations across the country. Evaluations of PNSPs have consistently demonstrated that they:

  • Reduce needle sharing
  • Reduce drug overdoses
  • Do not lead to increased drug use or injecting
  • Facilitate referrals to drug treatment programs
  • Have not resulted in needles being used as weapons against staff or other prisoners.

However, despite these clear benefits, Canadian prisoners are denied access to sterile injecting equipment. This not only puts the health and lives of prisoners at risk, but also correctional staff who run the risk of being exposed to non-sterile needles, as well as prisoners’ families and the broader public when prisoners are released back into the community with health problems they contracted in prison.

People in prison have the right, protected by law, to essential health care that contributes to their rehabilitation and reintegration, and to a standard of health care that’s equivalent to that available on the outside. Yet despite these legal guarantees, prisoners are not being provided with equal access to harm reduction options, with grave consequences for their health and human rights, as well as public health more broadly.

TAKING ACTION TO DEMAND HUMANE PRISON POLICIES

The BCCLA has taken action to demand sane, humane prison policies many times over the years, including our ongoing challenge, with the John Howard Society of Canada, to prolonged solitary confinement, and our work to ensure that the rule of law continues to run behind the walls of Canada’s prisons and jails.

In the coming months, we’ll be turning our sights to the lack of harm reduction tools for injection drug users in prisons and the violations of the rights to life, security and equality this policy failure entails. The BCCLA will be intervening in a constitutional challenge brought by Steven Simons, a former prisoner who was infected with hepatitis C during his imprisonment, the Canadian HIV/AIDS Legal Network and other community organizations against the Government of Canada over its failure to make sterile injection equipment available to federal prisoners and prevent the spread of HIV and hepatitis C in federal prisons.

We intend to argue that the prohibition on access to sterile injection equipment in prisons violates the principles of fundamental justice enshrined in the Charter: the restriction goes too far in trying to achieve its objective of protecting and promoting the health and safety of prisoners and staff, and its negative effects are grossly disproportionate. We will also argue that because the government has complete control over prisoners’ access to health care of any kind, the Constitution imposes an obligation on government to provide prisoners with necessary health care, including clean needles and syringes, just as they would have access to in the community.

For more information on the lawsuit and an informative range of research on PNSPs, check out the Prison Health Now website. And watch this space for news about the BCCLA’s intervention.

Prisons may be designed for punishment, but they should not be a death sentence.

[i] See Canadian HIV/AIDS Legal Network, “Prison Needle and Syringe Programs: Policy Brief” (15 February 2012).

[ii] Ibid.

< class="what-entry-title">BCCLA hiring for Staff Counsel (Litigation) Positions, including Acting Litigation Director>
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The BCCLA seeks two lawyers who are passionate about using their legal skills to uphold civil liberties and human rights in Canada.

The two positions will commence in October 2016. The positions will remain open until filled, which will not be before September 16, 2016. Interviews will be conducted on a rolling basis as we receive applications.  

About the positions: The Litigation Staff Counsel in these positions will litigate cases and engage in non‑litigation advocacy to uphold civil liberties and human rights throughout Canada. Responsibilities include developing and litigating cutting‑edge, impact‑driven cases on a wide range of issues at the trial and appellate levels of court, often in partnership with pro bono lawyers. The Litigation Staff Counsel will represent the BCCLA publicly through speaking engagements and media interviews, and collaborate with staff in other departments to set goals and implement strategies that advance the BCCLA’s priorities.

To apply, click here.

< class="what-entry-title">Stingray surveillance: more of the story>
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IMSI CatchersAfter an immensely frustrating back-n’-forth with the Vancouver Police Department (VPD), we are starting to get at least some information about the VPD’s use of surveillance devices known as “Stingrays”. 

Stingrays (also known as “IMSI Catchers” or “Cell-Site Simulators”) intercept cell phones’ connections to communications towers in order to scoop up data from cellphones in a given geographical area.  These are very controversial devices because they do mass surveillance, not targeted surveillance, and Canadian police have worked really hard to keep their use of these devices secret. 

Recently an Inquiry by the BC Information and Privacy Commissioner regarding VPD records about Stingrays was suspended when the VPD amended its response to a freedom of information request that had been made by PIVOT Legal Society.  Initially, the VPD said that it “would neither confirm nor deny” that it held any records, but rather than defend that position in the Inquiry, it disclosed that it does not possess a Stingray and has no records responsive to the request.  Our views on that part of the story can be found here.

This lead to a further exchange of letters in which we asked much more pointed questions, specifically, whether despite not “having” a Stingray, the VPD might use the RCMP’s Stingrays.  And the answer to those questions has now been received:  Yes they have used an RCMP’s Stingray and yes, they would do so again. 

Okay… so now we’re getting somewhere.  Here is a short summary of the Good News and the Bad News based on everything we know to date.

GOOD NEWS

The VPD provided some context for its previous use of a Stingray and on the basis of the information they gave us, we can vouch for their past use (and they say there’s only been one) being legitimate, appropriate and properly authorized.

BAD NEWS

Not only has it taken years to get the most basic and partial of information on this subject, but we are still largely dependent on the good will of the police to use these devices responsibly because protection from illegitimate or abusive use is next to nil.

Contrast this with the case of Germany, which, to my mind, wins the Gold Medal for Stingray transparency and accountability.  Germany has had federal regulation since 2002 which specifies that:

  • a warrant is required;
  • Stingrays can only be used for investigation of serious crimes;
  • Stingrays can only be used to determine suspects’ geo-location (not interception of communication’s content);
  • the process must limit the collection of non-suspects’ data;
  • non-suspects’ data cannot be used for any purpose other than confirming that it is non-suspects’ data and that this incidentally captured data must be deleted without delay;
  • police use of Stingray is subject to reporting requirements for oversight and review.

Project Clemenza

Contrast that with Canada where we have absolutely no policy or regulatory response to police and intelligence agencies’ use of Stingrays despite the RCMP having had Stingrays for over a decade.  The information from the VPD adds to the very small pile of information we have about the use of Stingrays in Canada, which comes in the main from a recent court case out of Quebec about a 2010 RCMP operation codenamed Project Clemenza.

The over three thousand, heavily redacted pages of the Project Clemenza documents and media reports on those documents tell us most of what we currently know, including that:

  • One officer testified to personally operating Stingrays in “over 30 different operations” and “on over 50 different subjects”;
  • Another officer testified that in 2015 the RCMP was maintaining “a large facility” in an undisclosed location for testing Stingrays and developing methodologies;
  • In Project Clemenza RCMP first sought a “general warrant” for use of the Stingrays, but that conditions for the deployment are laid out by an RCMP Criminal Operations officer and internal authorizations may come before the issuing of the general warrant (that is, it’s unclear what judges are being told);
  • The RCMP have declined media requests to clarify their authorization process for Stingrays;
  • The RCMP have also declined requests to clarify what it does with the data it collects on all the people who are not the legitimate targets of police surveillance ( and the Project Clemenza documents suggest that they retain the data).

So, let’s sum this up.  Currently, we know that police in Canada are using Stingrays.  These are mass surveillance devices which undoubtedly do have legitimate policing uses, but which must be appropriately constrained to avoid abuse (recall, our Charter right to be free from unreasonable search and seizure requires the prevention of unjustified searches before they happen).

Currently, people in Canada have knowledge of almost NO checks to the potential abuse of the extraordinary surveillance powers of Stingrays.

  • WE DO NOT KNOW whether warrants are always being sought or the nature of the warrants being applied for;
  • WE DO NOT KNOW what judges are being told about the capacities of Stingrays with respect to the warrants being applied for;
  • WE DO NOT KNOW if any minimization techniques are used to limit the collection of data of people who are not the targets of surveillance;
  • WE DO NOT KNOW what is being done with the personal information of the thousands of people who are not the targets of legitimate police investigation.

In short, Canada is way, way behind in crafting a constitutionally-compliant approach to the use of Stingrays, due mainly to the fact that it’s taken over a decade to unearth even enough information to understand how desperately behind we are.

How do we fix this?  I suggest we take our cue from Germany.  Why, there oughta be a law… In fact, it is arguable that for appropriate constitutional protection, there must be a law.

< class="what-entry-title">We’re hiring for a Staff Counsel (Policy)!>
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The BCCLA seeks a lawyer who is passionate about using their legal skills to uphold civil liberties and human rights in Canada.

The position will commence as soon as possible. Applications close on September 16, 2016. Apply here.

About us: The BC Civil Liberties Association is one of Canada’s leading social and democratic justice not-for-profit organizations. With a mandate that includes work on police accountability, government transparency, voting rights, prisoners’ rights, national security issues and women’s rights, we are one of the most vibrant and visible advocacy groups in Canada. The BCCLA is a small team with a big reach, and we want you to be a part of our work.

About the position:

The successful candidate will work on a wide range of constitutional and administrative issues to uphold rights in Canada. We are working on a wide range of issues including: the rights impacts of national security law, solitary confinement, privacy, discrimination and racial profiling, patients’ rights, police and CBSA accountability, criminal law reform, and many more.

It is expected that the candidate will have the capacity and appetite to become a national-level thought leader on the issues on which they work.

The counsel in this position will have the following principal responsibilities:

  • Engaging in law and policy reform research, writing and advocacy;
  • Developing and delivering public legal education resources and events;
  • Engaging with media regularly;
  • External collaboration with coalitions and diverse allies to achieve common objectives; internal collaboration with legal and non-legal staff on organizational projects and objectives;
  • Managing project budgets and working with development staff to source funding, and prepare updates and reports for funders and the BCCLA board, including financial reporting;
  • Providing support to policy director, executive director and litigation director on an as-needed basis;
  • While this position is envisioned as principally a law reform/policy position, all lawyers may be involved in cross-cutting work that includes work on BCCLA’s litigation and other organizational functions such as planning.

About you:

You possess the following attributes:

  • You are a top-notch legal thinker with strong legal research, analysis, writing and advocacy skills – you can quickly analyze a new statute, policy or judicial decision and understand the key human rights and civil liberties issue at stake and formulate a creative and pragmatic response;
  • You are someone who is eager to thoughtfully challenge and argue in service of the BCCLA’s objectives;
  • You have excellent problem-solving and divergent thinking skills;
  • You have well-developed relationship-building and inter-personal skills;
  • You possess an understanding of the state of civil liberties and human rights in Canada, of current events and the political environment, and the ability to identify and prioritize the areas of opportunity to advance the BCCLA’s cause;
  • You have dynamic communications skills with an aptitude for public and media communications and community outreach – You can communicate the BCCLA’s legal analysis in a way that is credible, understandable and relatable to members of the public, media, to the academy and policy makers alike;
  • You are a comfortable public speaker;
  • You can analyze and articulate legal concepts and communicate them to a variety of audiences, including to the public and policymakers;
  • You are able to strike the right tone to be effective in a variety of settings, whether community meetings, meetings with allied groups, testifying before a Parliamentary committee or press conferences;
  • You are a thoughtful strategist with an aptitude developing proactive law reform solutions;
  • You are capable of working in a self-directed and self-learning way, with appropriate support from your colleagues;
  • You have experience in supporting and advancing organizational goals and are comfortable with project and budget management;
  • You are committed to the organizational goals of the BCCLA;
  • You are able to able thrive in highly charged situations and adapt to changing conditions to get the job done.

The successful candidate will work on a wide variety of issues. Important current focuses of our work include national security and human rights; criminal law and sentencing reform including discrimination against Indigenous people and people of colour; drug policy; police and Canada Border Services Agency accountability and reform; civil forfeiture and many more. Candidates need not have a current understanding of each of these areas but an aptitude to engage on a range of issues simultaneously is a requirement of the position.

Experience and Qualifications:

  • Demonstrated interest in and commitment to human rights, civil liberties and social justice is an asset;
  • Member of the Law Society of British Columbia or eligible for call to the BC Bar;
  • J.D. or LLB degree; other advanced degrees an asset;
  • Preference is for a minimum of three but preferably at least five years of legal and law reform experience;
  • Excellent legal research and writing skills;
  • Ability to engage in complex legal analysis and fact investigation in an impact litigation setting;
  • Excellent oral and written communication and analytic skills;
  • Excellence in media and public relations or potential to develop it;
  • A deep understanding of the national and provincial policy environment in which we conduct our work is an asset;
  • Experience in community outreach preferably including work with marginalized communities a strong asset;
  • Ability and willingness to travel periodically within BC and Canada;
  • Ability to work long hours when needed, for an employer that strives to ensure its employees can enjoy a balanced lifestyle;
  • Ability to work independently as well as within a team; and
  • Ability to manage several projects in a fast-paced work environment.

Compensation

Salary is based on the BCCLA’s Salary Structure, and commencing at $60,000 for a first year call and proceeding through to $90,000 for 16th year of call and beyond. Benefits include extended health and dental plan for the employee, spouse and dependents, a life insurance plan, as well as four weeks’ annual vacation and generous sick leave policy. Our progressive workplace environment includes the possibility for flexible work arrangements. Although the position will begin as a one-year contract position, our intention is to continue the position as permanent if funding is available. We are also open to discussing a longer initial term length for an appropriate candidate.

Application and Selection Process

We are accepting applications here until September 16th, 2016.

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

Please submit your resume and cover letter as PDFs. In your cover letter, please include up to two writing samples as appendices: one sample of your legal writing, and, if available, one sample of your writing for a public audience. Please provide the contact information for three professional references in the designated field.

When submitting your application, please name and save your attachments with your first and last name in the title, in the format: “Ann_Smith_Cover_Letter.pdf” and “Ann_Smith_Resume.pdf.”

Candidates are invited to share their LinkedIn and Twitter profiles, but are in no way expected or required to do so.

Closing date: September 16, 2016

We thank all applicants for their interest, but we will respond only to candidates who are being considered for an interview.

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

< class="what-entry-title">In memory of Elayne Shapray>
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We wish to share with our friends and supporters a few words about a tireless advocate, and our friend, Elayne Shapray.

Volunteer, activist, spokesperson, and indomitable spirit. Born on Sept. 30, 1946, in Montreal; Elayne died on May 2, 2016, in Vancouver, of a consensual physician-assisted death, age 69.

This tribute to Elayne was written by her husband Howard Shapray.

Elayne and HowardIn 1968, when I met the woman who would become my wife until her death did us part, Elayne Auerbach was a nurse working with disturbed children in a child psychiatry ward. Early on she told me that that was not her career of choice. She had wanted to become a doctor working in the jungle villages of Africa alongside Albert Schweitzer, aiding sick and dying people who knew no hope. How ironic that she would, at the end of her life, fulfill her goal while sitting in a wheelchair in Vancouver, fighting for the constitutional rights of future generations of suffering, incurably ill people.

When she was not being a wife and guiding light of two children and four grandchildren who she cherished above all else, Elayne gave her life to volunteerism. She was a doer. Although she sat on the boards of numerous community institutions, she was always happiest when she got her hands dirty working in the trenches with society’s outcasts and underprivileged; clothing the poor and helpless through a coat drive she ran for 20 years, educating disadvantaged children with a mobile preschool she helped to establish, adopting a Russian refugee family, creating a welcoming drop-in centre for lonely seniors, counselling distraught people at a family planning clinic or crisis centre, or tending to the dying in Vancouver General Hospital’s palliative care unit. Volunteer work energized Elayne and fuelled her existence.

During her 15 years as a volunteer in the palliative care unit, she saw how cruel and wrenching death could be in spite of morphine drips and other forms of palliative sedation.

For almost 20 years, Elayne hid the fact that she was afflicted with a form of progressive multiple Elayne Shapray in bubblesclerosis from her many friends, allowing them to speculate as her ability to walk began to disappear. Her smile and her often sardonic sense of humour was the mask she adopted, until her last breath, to protect her friends and family from the truth of her suffering.

In 2011, ravaged by her interminable disease, Elayne surrendered her privacy by lending her voice to become a witness in the most important human-rights lawsuit of her generation, Carter v. Attorney-General of Canada. Later she became one of the most visible and outspoken advocates for the cause of physician-assisted dying in Canada. Her fight for dignity and justice became the focus of media coverage in Canada and the United States as the issue worked its way through the courts. Elayne relished her role as a spokesperson for a cause dear to her conscience – ending the unconstitutional repression of individual autonomy by denying the choice to experience a “good death.” She was dismayed by the government’s attempt to deprive her and thousands like her who have untreatable illnesses that progress indefinitely, but where a natural death is not “reasonably foreseeable.”

Elayne died at the time and place of her choosing in the presence of a caring physician. Hers was by any reasonable definition a “good death” – smiling, joking, surrounded by best friends and family as she peacefully slipped away into her final slumber, instructing me to, and hoping others would, continue her fight for fundamental justice.

Howard Shapray is Elayne’s husband.

< class="what-entry-title">Water is Life>
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Drinking_fountain

Darwin Bell/Wikimedia Commons

 

110.

That’s how many people died in the Lower Mainland during a one-week heat wave in 2009 – a 40% increase in mortality compared to an average week. And as new research out of UBC shows, the bulk of those deaths occurred in high poverty areas of the city.

SOCIAL DETERMINANTS OF HEALTH

It’s probably no surprise that people living in poorer areas are at a greater risk of dying during a heat wave. It’s increasingly well-known that the “social determinants of health” – the social and economic factors that influence people’s health – are critical to understanding and addressing health outcomes and inequities. The primary factors that shape the health and well-being of Canadians are not medical treatments or lifestyle choices but rather the living conditions they experience. The health of a community is shaped by how income and wealth are distributed; whether or not we are employed, and if so, the working conditions we experience; the health and social services we receive; and our ability to obtain quality education, food and housing.

When the World Health Organization’s Commission on Social Determinants of Health published its final report, it concluded that “social injustice is killing people on a grand scale.” Clear evidence of this exists in our own backyard.

A LETHAL COMBINATION

UBC researchers used the Vancouver Area Neighbourhood Deprivation Index (VANDIX), a public health research tool that measures social and material deprivation factors including education, employment, income, and single parent family status, to study how extreme heat affects different populations in different parts of the city. They found that heat exposure and social vulnerability can be a lethal combination, with higher rates of death in higher poverty areas of the city, most particularly in the Downtown Eastside.

Some possible explanations: some rooms in Single Room Occupancy hotels (SROs) don’t have windows that open. People who are unemployed aren’t escaping to air conditioned offices. Poorer areas often lack trees and shady park spaces and are covered instead with asphalt and cement. And people with mobility challenges and other barriers may not be travelling to local service providers and community spaces to seek assistance and respite from the heat.

PUBLICLY ACCESSIBLE DRINKING FOUNTAINS

Publicly accessible drinking fountains are an important public health response to the problems of heat stroke and dehydration. Many vulnerable Vancouver residents, particularly people living in poverty and experiencing homelessness, rely on publicly accessible drinking fountains to meet their basic water needs.

The 2009 heat wave was a major driver in the City of Vancouver’s creation of an Extreme Heat Plan, which sees the installation of temporary water fountains around the city when temperatures climb past 31 degrees. Media reports indicate that the City is currently doing a risk assessment to determine whether more fountains are needed in particularly vulnerable areas, like the Downtown Eastside.

A CIVIL LIBERTY AND HUMAN RIGHT

Access to clean drinking water is an essential human need that deserves to be protected as a civil liberty and human right. At the BCCLA we believe that the right to water should be recognized and protected in legislation and policy by all levels of government. Urgent action is required to address the shameful lack of clean water on too many First Nations reserves, and access to clean drinking water must be treated as a public health priority.

To that end, we’ve written to the City of Vancouver urging them to take immediate action to improve the accessibility of public drinking fountains, with a special focus on vulnerable areas like the Downtown Eastside and other high risk areas identified in the research. Water is life, and our ability to access it should not depend on where we live.

See our Right to Water position paper here.

Read the letter we sent to the City here.

< class="what-entry-title">We did it!>
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You brought us to our goal!Crowdfunder funded- julia

What incredible week. In just 6 hours we raced passed our initial goal of $25,000. Then, just over a week after launching our crowdfunder, we hit $75,000!

We continue to be floored by the generosity, passion, and commitment of this amazing community. You have already fought so long and so hard to ensure access to physician-assisted dying for those who are suffering intolerably. After our victory at the Supreme Court of Canada last year, none of us expected to have to do this again.

But we were left with no choice, and so we have come together again. We will make sure that suffering Canadians are not left behind. It’s your unflagging support that will bring this case to victory.

Thank you for standing with Julia Lamb, with suffering Canadians, and with this amazing community, for compassion and respect for choice.

Now the hard work begins. We will continue to send updates and new information about the case as it progresses. For timely updates, make sure you follow us on Facebook and Twitter. And keep an eye on our website, where we’ll continue to receive donations and update the case page as new information becomes available: www.bccla.org/lamb

Your support is the reason we’ve made it this far. Thank you for standing with us.

Sincerely,

Josh Paterson, Executive Director, and the BCCLA team.

< class="what-entry-title">Where Did the Stingray Inquiry Go? >
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stingray

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

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

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

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

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

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

VICTORY? NOT QUITE THAT SIMPLE

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

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

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

Stingrays“WE GOT NOTHING”

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

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

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

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

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

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

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

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

SO, WHERE ARE WE NOW?

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

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

ACCOUNTABILITY ON THE FRONT END

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