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< class="what-entry-title">We’ll be giving you a call!>

This is just a quick note to let you know that we’re going to be giving you a call!

The BCCLA calling team is spread out all over the country, but they’re calling to talk to you about the civil liberties issues that matter most to you, and to invite you to join us as a monthly donor.

This note is just so you know it really is us calling! If you have any questions or feedback about the call you receive, let us know! Contact BCCLA Supporter Relations and Digital Strategy Coordinator Catherine Hart at [email protected]

< class="what-entry-title">No gag: BC’s speech-chilling elections law needs to go>

The Supreme Court of Canada is hearing an important case today on issues of freedom of expression, privacy, and our right to speak out about political issues that matter to us.

The case is called BC Freedom of Information and Privacy Association v. Attorney General of British Columbia and it was launched by our friends at the BC Freedom of Information and Privacy Association (better known as BC FIPA).

082616-gz-signs4The issue is this. BC’s election law prohibits unregistered “election advertising” during an election campaign. “Election advertising” is defined incredibly broadly so as to encompass all forms of political speech, from a jacket pin to a roadside billboard, subject to a few specific exceptions.[1] The law draws no distinction between “election advertising” to promote a candidate or party, and “election advertising” that expresses personal opinions regarding issues that a candidate or party may be associated with.

Got that?

If you communicate your political views to the public during an election campaign on an issue that a candidate or party is associated with (and really, can you think of an issue that a candidate or party is NOT somehow associated with?), you’re required to register this “election advertising” with the Chief Electoral Officer (CEO). And this requirement applies to simple, inexpensive communications like posting a sign in your window, sticking a bumper sticker on your car, or wearing a t-shirt as you walk down the street. It also applies to websites and newsletters – critical communications tools for many groups and organizations – and means that the website of an organization addressing poverty, pipelines, or any one of the many issues “with which a party may be associated” suddenly becomes “election advertising” once an election campaign kicks off, and must be registered.[2]

Elections BC recently issued a Bulletin about Internet communications. The Bulletin states that messages without placement costs on the Internet, such as Facebook, Twitter, Instagram and other social media posts, YouTube videos, emails and websites will no longer be considered election advertising.

The law has had a significant and disturbing impact on public debate in the lead-up to the last two provincial elections, particularly for social movement organizations: charities, non-profits, coalitions, labour unions and citizens’ groups. Back in 2010, the BCCLA partnered with the Canadian Centre for Policy Alternatives and BC FIPA to release a report documenting these impacts in the 2009 election. The research found, most disturbingly, an anti-democratic chill on election discourse, as many groups and movements self-censored to comply with the law.

A BC Problem

BC is the only province that does not set a minimum amount that must be spent on election advertising before a person is required to register with election authorities. Other provinces recognize that while it’s important to prevent big spenders from dominating the conversation and drowning out smaller voices during an election campaign, it’s not necessary to impose onerous registration requirements on people who spend little to no money to express their political views. But in BC, a person or group who fails to register with the CEO before displaying even simple and inexpensive forms of political expression is liable to a fine of not more than $10,000 or a year in prison, or both.

The BCCLA is intervening in the case to argue that the registration requirement silences the voices of those already marginalized within the political arena: those with little money, little political power, and views that challenge the status quo.

One of the most basic means of personal political expression is the display of a poster or sign. But those most likely to use these modest means of communication to express their political views are also the most likely to be deterred by the registration requirement, which forces them to declare their political activities to the government. Those with little money, little power, and views that challenge the status quo are often incentivized by their circumstances to avoid government.

For example, individuals on parole or in receipt of social assistance or government disability benefits may be reluctant to draw the government’s attention to themselves, let alone specifically to their political activities; people who are homeless may be det2011-02-28_12-32-36_446erred by the fact that they don’t have an address or contact number to provide; those who owe money – whether to the government or to less savoury elements – have reason to be hard to find.

This registration requirement limits privacy and serves to stifle the political expression of those on the margins of society: people of modest means seeking to advance contentious, unpopular or under-represented views. It also suppresses important advocacy work by social movement organizations and citizens’ groups. Moreover, there is simply no compelling government objective for the registration requirement that would justify its significant negative impacts on freedom of expression.

We’re proud to join BC FIPA at the nation’s highest court today to argue for broad public participation in our democratic dialogue, unfettered by unnecessary and privacy-violating restrictions.

[1] There are exceptions for the publication of news, editorials, etc. in a “bona fide” publication or on the radio or TV; distribution of a book if the book was planned to be made available to the public regardless of whether there was an election; documents shared with members, employees or shareholders in an organization; and non-commercial transmission of personal views over the Internet, telephone or text message. See section 228 of the BC Elections Act.

[2] Elections BC recently issued a Bulletin about Internet communications. The Bulletin states that messages without placement costs on the Internet, such as Facebook, Twitter, Instagram and other social media posts, YouTube videos, emails and websites will no longer be considered election advertising.

< class="what-entry-title">The “New” CSIS – a de facto Secret Police>
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Issue: New Powers for CSIS to “Take Measures” Against Threats

While a democracy can incorporate the need for an intelligence agency to operate with considerable secrecy, there is no place in a democracy for a secret police.  Full stop.

CSIS (Canadian Security Intelligence Service) was created to collect and analyze information about threats to national security.  It is a civilian agency, not part of the police or military. It operates with a substantial amount of secrecy like its approximate counterparts the CIA (US) and MI5 (UK).

Bill C-51 (the Anti-terrorism Act 2015) gave CSIS new powers beyond collecting security intelligence information and disseminating it to relevant sectors of the government.  The new law amended the CSIS Act so that now, if CSIS has “reasonable grounds to believe” that an activity constitutes a threat to the security of Canada, it can “take measures, within or outside Canada, to reduce the threat.”

What those “measures” could be is not defined.  The only prohibitions are actions that:

  • cause, intentionally or by criminal negligence, death or bodily harm to an individual;
  • willfully attempt in any manner to obstruct, pervert or defeat the course of justice; or
  • violate the sexual integrity of an individual.

Short of that, CSIS now has broad authority to take whatever measures it deems “reasonable and proportional in the circumstances, having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat.”  It is up to CSIS to decide whether their actions are “reasonable and proportional”.

If any of their proposed actions are illegal or violate Charter rights, then CSIS is supposed to get a judicial warrant to authorize those actions.  The threshold question of whether a warrant is needed for any proposed action is left up to CSIS to decide and that decision will not necessarily be reviewed by any external body.

There has been considerable debate about what kinds of actions (“measures”) are authorized under this new law.  The government’s view is that these new powers do not allow CSIS to arrest individuals. The government gives examples of ‘threat reduction’ that include modifying websites, interfering with communications, disrupting financial transactions and manipulating tools or devices.  Leading national security scholars believe that the law would also authorize capture, detention, interrogation and rendition.

So, although government stresses that CSIS does not have “law enforcement powers”, what they could do in the name of threat reduction looks very much like the powers of a secret police.

Does the Warrant Requirement Protect Against Abuse of these Extraordinary Powers?

There are three serious problems with the scheme to regulate these powers through the warrant process.

  • 1) CSIS gets to decide if they will even apply for a warrant. There is an external body, called SIRC (Security Intelligence Review Committee) that reviews the operations of CSIS, but it only does selective review, after the fact.  Decisions about applying for a warrant will not necessarily be reviewed.
  • 2) But most fundamentally, even if a warrant is applied for, this warrant system attempts to legitimize unconstitutional actions and to change the role of the courts from protecting Charter rights to authorizing violations of Charter

There is a great deal of confusion on this point, in part because we are used to thinking of search warrants as important protections of our rights.  But the way this works in the context of searches is unique.  This is because our s.8 Charter rights protect against unreasonable search and seizure.  A court needs to be satisfied, on the evidence, that the warrant is justified.  If the warrant is justified, that makes the search reasonable, and a reasonable search is constitutional.  In other words, no Charter right is violated with a properly issued search warrant.

But that only works for searches.  As legal scholars have pointed out, there is no concept of “reasonable” cruel and unusual punishment, no warrant-based qualifier attached to fundamental rights like freedom of speech, association or religion.

The government’s argument is that the courts will be deciding on whether to give CSIS threat disruption warrants using an analysis that courts use in Charter challenges to weigh a rights violation against the government’s argument about the need to violate that right.

Firstly, not many lawyers agree with the government on this interpretation.  And even assuming that the courts were to do this type of weighing and balancing exercise, this is an ex parte application.  This means only CSIS is appearing before the judge and there is no one in court to present the argument of the individual whose rights are at stake.  The judge only gets to hear CSIS, and it’s impossible to have a meaningful balancing exercise where one side of the argument isn’t even presented.

  • 3) Further, CSIS has a troubling pattern of breaching its duty of candour in these kinds of applications. SIRC (the review body) has found instances of CSIS seriously misleading and failing to proactively disclose relevant documents. Similarly, the Federal Court of Canada has held that CSIS has breached its duty of candour when applying for a warrant and the conduct of CSIS with respect to security certificates has also revealed instances of CSIS conduct that raise serious concerns about its commitment to candour before the courts.

What Do We Know About How CSIS Has Used “Threat Disruption” Powers So Far? 

Since most of what CSIS does is secret, we have very little understanding of how these new powers are being used.  SIRC, the body that does external review of CSIS, has just issued a report in which it says that CSIS has used or considered using threat reduction measures “approximately two dozen” times since the powers were granted and that no warrants have been issued for those measures.

Here is the provision about when warrants are needed:

  1. 12.1(3) The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to any other Canadian law, unless the Service is authorised to take them by a warrant issued under section 21.1

So, “approximately two dozen” disruption measures engaged in or contemplated and not a single warrant applied for.  This should mean that no laws were contravened and no one’s Charter rights were violated.  Which begs the question:  what kind of disruption measures can they be using?  Recall the activities that the government envisions being used: modifying websites, interfering with communications, disrupting financial transactions and manipulating tools or devices.  Every one of those activities is illegal and violates Charter rights.  It is a complete mystery as to what CSIS could possibly be doing in the name of threat disruption that does not impact Charter rights, unless it is just talking to people.  If so, it didn’t need new powers to do that; it has always done that and frankly, classifying such activity as falling under the new disruption powers would seem to be a tactic to make such powers look much more benign than they truly are.

In this light, the fact that no warrants have been applied for is not a comfort. It is rather a sign that even the seriously problematic accountability mechanism these warrants provide is likely being skirted and avoided.

Analysis:  Security Benefit of the New Powers vs. the Dangers of the New Powers

Giving “disruption” powers to CSIS has radically altered its role in the national security system and upended the balance between security intelligence and law enforcement, blurring the line between spying and policing. Prior to this change, CSIS would gather and provide security intelligence information to the rest of government and the police had the ability to physically act on the basis of that information.  The government’s National Security Green Paper says that “it was felt that there were situations where CSIS was best placed to take timely action to reduce threats.”

Giving CSIS secret parallel powers to that of the police greatly increases the potential of their working at cross purposes and undermining the policing of genuine threats.  The government appears to implicitly point to other jurisdictions to support “disruption” powers for CSIS, but as experts have noted, the “disruption” powers of MI5 in the UK are designed to work with the police and within the confines of the regular law, not apart from the police outside of the confines of the regular law.

Thus, there is no evidence that the new powers will enhance our security and realistic concern that they could in fact reduce it.

Bottom line: The Changes We Need

The recent expansion of CSIS powers is unprincipled, dangerous and unnecessary.

Over the past decade we have seen the effects of an approach to national security that at best, privileges bare legality, and at worst, descends into illegality.  The consequences for the rule of law and human rights have been profound.

Bill C-51 gave CSIS vast powers to operate outside the confines of the regular law in near total secrecy.  These provisions must be repealed.

While a democracy can incorporate the need for an intelligence agency to operate with considerable secrecy, there is no place in a democracy for a secret police.  Full stop.

< class="what-entry-title">2) Terrorism Speech Offences Will Undermine Radicalization Prevention Efforts>

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Green Paper Topic(s)

  • Criminal Code speech offence of advocating or promoting “terrorism offences in general”, and
  • Proposal for radicalization prevention programs

What it is

Law Against Advocating or Promoting Terrorism in General

The Anti-Terrorism Act 2015 (ATA, 2015) (“Bill C-51”) created a new lawfreedom-of-speech-expression-religion criminalizing speech that “advocates or promotes the commission of terrorism offences in general”.  Unlike the hate propaganda offence that it is based on, the new offence contains no exemptions for private conversations or legal defences (such as a public interest defence).

The federal government’s national security consultation Green Paper offers a suggestion as to what “terrorism offences in general” might mean, but the Canadian legal community has no clear agreement on how courts would interpret this troublingly open-ended language.  Presumably “terrorism offences in general” goes beyond the already broad definition of “terrorist activity” set out in s.83.01 of the Criminal Code.  Leading legal scholars in the field to note, “this is a potentially infinite number of offences.”

Radicalization Prevention Efforts

The federal government has announced “$35 million over five years, with $10 million per year ongoing, to create an office of the community outreach and counter-radicalization coordinator”.  The government has indicated that it is committed to supporting credible voices within communities to develop programs and messages that counter radicalization to violence.

The government Green Paper describes law enforcement playing an important role in supporting individuals at risk of radicalization to violence and responding if individuals progress to criminal activities.  Community capacity-building could include “mentorship, multi-agency interventions and training and support for front-line intervention work (such as youth workers, corrections and parole officers, social service providers, faith leaders and mental health practitioners).”

Analysis

Many countries are stressing the importance of measures to counter radicalization to violence.  Unfortunately, we really don’t know, at this point, what measures are effective.  So far, the limited research and the experience of other countries have mostly served to show us what is not effective.

For example, the UK’s counter-radicalization program has been soundly criticized as “irretrievably tainted” and actually undermining the work of Muslim civil society. As Frances Webber, vice-chair of the Institute of Race Relations said,  “The government’s counter-radicalization policy is trying to channel thought, speech and ideas into a fairly narrow concept of what’s acceptable, and everything else is becoming potentially ‘pre-criminal’.”

If it wasn’t obvious at the outset, one of the  clear ‘lessons learned’ thus far is that counter-radicalization programs cannot be credible to communities, cannot earn the trust and confidence of people at risk of radicalization to violence, by criminalizing them for speaking about their views.  Social intervention/support roles and policing/intelligence roles must be clearly separated. 

Imagine trying to work within community to support individuals at risk for radicalization to violence when even a discussion to understand their views puts them in the position of potentially committing a crime.  This is the situation that currently exists in Canada, where it is a crime to promote or advocate the commission of terrorist offences in general.  The reach of this law goes well beyond “active encouragement” to engage in terrorism.  The law makes criminals of people who have neither committed, nor plan to commit, any criminal or violent act.  They don’t have to actively incite or counsel acts of terror or violence, nor does the law require that the speaker even intend for a terrorist offence to be committed.

The government and the police may say: we aren’t going to prosecute people for statements made in the context of community support work or go after rash comments made by teenagers on social media.  In fact, the government’s  Green Paper takes the interesting  and counter-intuitive position that “[t]he offence is not an attempt to criminalize glorification of terrorism or praise for terrorism.”

However, what the government says it intends is not determinative of what the law does, and especially not a law that is a speech offence.  Thinking about a speech offence, we must think not only about who might get prosecuted, but about what expression is chilled because of the threat of prosecution. 

Here, the scope of the law is not only vast, but unknown.  And while any chill of speech has serious consequences for democratic life, this type of offence also has very particular impacts on security and public safety.  To the extent that moderating extremist speech can sometimes aid in intervention and investigating security threats, the chilling effect can drive speech offline and underground, making intervention and investigation more difficult.

The Changes We Need (the bottomline)

The new offence of advocating or promoting the commission of terrorism offences in general should be repealed.  We can see no security interest in further criminalizing expression beyond what was already an offence prior to the new law.

The Criminal Code makes it illegal to counsel anyone to commit a terrorism offence, and considering that terrorism offences include acts that fall well short of violence, such as preparing to commit terrorism acts or supporting terrorist activity, this already captures a broad range of terrorism-related expression.

The potential sweep of the new terrorist speech offence presents not only a serious chill on speech, but a genuine risk of unintentionally undermining security.  The message of tolerance and democracy, which is the counter-narrative to violence, has no credibility where it criminalizes general extremist views.  Criminalizing these views alienates from their communities individuals at risk of radicalization to violence, increasing their risk and decreasing the potential for meaningful intervention and prevention.

< class="what-entry-title">1) The new Canadian “no-fly” regime>

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Bill C-51 brought in the Secure Air Travel Act (SATA) which modifies the Canadian “no-fly” scheme (the Passenger Protect Program) to be more like the US model. 

People on one of the lists are not permitted to board airplanes (“no-fly”).  People on another list are subjected to additional security scrutiny when they try to board airplanes (“slow fly”).

The Minister of Public Safety establishes the lists.  An individual can be put on the no-fly list if the Minister has reasonable grounds to believe she will:

(a)   Engage or attempt to engage in an act that would threaten transportation security, or

(b)   Travel by air for the purposes of committing certain terrorism offences as outlined in the Criminal Code.

Instead of reviewing the lists every 30 days (the former system),the Minister only has to review it every 90 days to determine if everyone listed continues to meet the criteria for listing.

So, am I on the list(s)?

Under the new law it is illegal to tell an individual if they are on the no-fly list or not. If you are denied boarding or delayed in security, neither the government not the airline can confirm or deny listing. Your only recourse is to apply in writing for a delisting.  You will make this application not knowing whether you are, in fact, on the list or the reasons for you being denied boarding.

The Minister has up to 90 days to make a decision on a delisting application. If no decision is made and three months simply go by, you are deemed to have been denied delisting.  In other words, if the Minister simply ignores your application for three months, your listing remains valid. 

At this point many people will already have suffered very negative consequences that include having lost employment and education opportunities that required them to travel abroad, all the way to the potentially perilous situation of having been denied boarding and prevented from returning home from abroad. Being trapped in a dangerous situation abroad didn’t make it into the government’s Green Paper, but it is a very real possibility.

Secret list, secret evidence, secret trial

Nevertheless, it is only at this point that you can go to court to ask a judge to review the Minister’s refusal to delist you.  This is called a judicial review process.  It is only once this process is underway that the government lawyers present the court with information relevant to the listing.  But you have no access to this information.  At best, you might get a summary of reasons for listing, but the underlying evidence can be withheld on national security grounds. 

Under the Act, the summary of reasons need not be complete, and a judge may rely on information supplied by the government even if no summary of that information has been provided to you.  There is no requirement that exculpatory information be provided to the judge for consideration.

Finally, if the Minister requests it, the hearing of the appeal must be held in secret, with neither you nor your lawyer permitted to attend. 

If you are on the “slow fly” list there is no recourse except through requesting the assistance of the newly created Passenger Protect Inquiries Office which is supposed to identify your problem and suggest what you might do next.  It is unclear what such suggestions might consist of. The government says it is considering changing the law to give some kind of redress to people who may be mistakenly listed, for example the growing number of Muslim children in Canada who have been prevented from or delayed in boarding flights.  So far, there is an office to provide assistance, but no clear notion of what assistance they are/can provide.

While it is next to impossible for you to be permitted access relating to your own listing, the Act allows your listing to be shared with foreign governments, with no statutory limits on how that information can be used by the foreign state.Abdelrazik

Canadian courts have recognized “security-watch listing” as Kafkaesque, something Canadians such as Abousfian Abdelrazik know only too well. Following his imprisonment in Sudan, the Canadian government would not grant him travel papers and otherwise blocked his return to Canada. He wound up on a UN No-Fly list while we was outside Canada, and his lawyers spent over a year in court before he was allowed to return home. The UN subsequently “de-listed” him without giving any real reasons. Secret criteria, secret processes – all a violation of fundamental fairness with genuine and serious consequences for the people caught in the web.

Analysis

Security benefit?  None/unknown.  There is no evidence that no-fly schemes improve aviation safety.  Travelers on these lists are deemed too dangerous to fly, and yet too harmless to arrest.  They are restricted from boarding aircraft, but not trains, ferries, subways, buses, etc. Think about it: supposedly too dangerous to fly, but not too dangerous to go the mall, walk into a school, go to a hockey stadium? There is simply no logic to the program. We have other means of keeping suspected terrorists off airplanes.

Rights concerns?  Security watch listing is inherently problematic because it is based on secret information and allegations against individuals that– being secret – are nearly impossible for any individual to challenge. The new scheme provides for an appalling and probably unconstitutional lack of due process for people listed. There is no timely and appropriate mechanism for appeal of the Minister’s secret decision.

Dangers?  We say that Canada’s experience with mistakenly labelling individuals as security threats and providing that misinformation to foreign governments should counsel against such carte-blanche approaches to foreign information sharing.

Because the scheme being proposed so closely resembles the US scheme, we have lessons that can be learned from their experience.  We know the US scheme is frequently used to pressure listed individuals to become informants for security agencies.  As the ACLU reported about the US no-fly system, FBI agents have been offering to remove individuals from the no-fly list in exchange for serving as informants in their communities.

A tactic employed is to wait until the targeted person is out of the country to add them to the no-fly list so that they are prevented from returning to their home and listed as national security threat in the country they have travelled to.

The assumption is clearly that these people are not genuine security threats or suspected terrorists. Thus, the concern is that such regimes are not only seriously flawed from the perspective of due process, but that such blacklisting may not be about keeping the skies safe at all.  Nothing in the Canadian system, deeply mired in secrecy, protects the public from such abuses.

The changes we need (bottomline)

Canada should repeal the Secure Air Travel Act and keep suspected terrorists away from airplanes using the existing tools under the criminal law.

If law enforcement have enough information to determine that an individual poses a threat to aviation safety, or that they are planning to board a plane in order to commit a terrorism offense, they are also likely to have enough information to:

  • Seek a recognizance order with conditions, or
  • Lay charges (recall, conspiracy to commit, or attempting to commit terrorism offenses are themselves crimes), or
  • Seek a court order for the imposition of a travel ban.

It is not the case that there may never be justification for preventing someone from boarding a plane.  The question is, how – and on what grounds – is this to be done? We say the tools of the existing criminal law are best suited to protecting both public safety and individuals’ security.

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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.

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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.