Biometrics Hazard: How Facial Recognition Technology is used by Canadian Law Enforcement

Biometrics Hazard: How Facial Recognition Technology is used by Canadian Law Enforcement

“Not only is this a concern with the possibility of misidentifying someone and leading to wrongful convictions, it can also be very damaging to our society by being abused by law enforcement for things like constant surveillance of the public”

– Nicole Martin, Forbes contributor

Star Trek. Back to the Future. District 9. I, Robot. These are only a few examples of films that have relied on biometrics – more commonly referred to as Facial Recognition – as a theme for entertainment. All are fiction based and while you may have thought of biometrics as a tool used by elusive government agencies like the FBI and CIA, that isn’t the case at all. Advancements in biometric technology have been seized upon by various law enforcement and government agencies across Canada – creating serious concerns from privacy and civil liberty advocates, and of course, criminal defence counsel.

The Calgary Police Service began using Facial Recognition technology in 2014. The system they use, known as NeoFace Reveal, works by analyzing an uploaded image and translating it into a mathematical pattern known as an algorithm. The image is then logged in a database and used for comparison against other uploaded images.

The Toronto Police Service hopped on board too. They reported uploading 800,000 images into their Repository for Integrated Criminalistic Imaging, or RICI by 2018. Their use of biometrics began with a trial in 2014, and in 2018, the Service purchased a system at a cost of about $450,000. Between March and December of 2018, the Toronto Police Service ran 1,516 searches, with about 910 of those searches (or 60%) resulting in a potential match. Of those potential matches, approximately 728 people were identified (about 80%). There were no statistics provided in relation to ethnicity, age, or gender, however, research has raised concerns about disproportionate effects of biometrics as it relates to people of color.

Manitoba Police do not currently use biometric technology as an investigative tool, although the idea was floated around in 2019 after the commission of a report concerning growing crime rates in Winnipeg’s downtown core. The Provincial government in Manitoba went so far as to suggest that this technology could be used to identify violent behavior – which sounds a lot like active surveillance, an unethical use of biometrics, which demonstrates one of the most profound concerns surrounding use of this technology. And while it is only a matter of time until the Manitoba Police do use this technology, many retailers in the province are already using it.

At home here in British Columbia, the Vancouver Police Department denies using Facial Recognition technology as a mechanism to investigate crime – in fact, back in 2011, they turned down ICBC’s offer to assist in identifying suspects involved in the Vancouver Stanley Cup Riots with the aid of their software. The office of the BC Privacy Commissioner confirmed that any use of ICBC’s facial recognition data by the VPD would amount to a breach of privacy for its customers.The office of the Privacy Commissioner of Canada has been keeping track since at least 2013 yet, there is little regulation of the use of biometrics in public and private sectors. 

The same cannot be said for the RCMP in British Columbia, who, as recently as two weeks ago refused to confirm or deny use of biometrics as an investigative tool, but questions have been raised as to whether or not the RCMP is a client of Clearview AI, a facial recognition startup pioneered by US citizen Hoan Ton-That. Clearview’s work has not gone unnoticed – Facebook and Twitter have issued cease and desist letters, making it very clear that they do not support Clearview’s objectives. Google issued a cease and desist letter as well – however, their position on biometrics is fuzzy – especially since they are trying to make advancements in this area as well. So far, though, they have come under fire for their tactics and the results that have been generated. 

The Canadian Government’s position on the use of biometrics is established on their website. When you submit your biometric information at Service Canada (for example), your information isn’t actually stored there, rather, it is sent to the Canadian Immigration Biometric Identification System, where it will remain for a period of 10 years. Further, your biometrics information will be shared with the United States, Australia, New Zealand and the United Kingdom. And yes – you can refuse to provide this information – but it will likely put a kink in your travel plans.

 

One important factor to consider about all of these agencies and their use of biometric technology is that this tool was never intended for use as active surveillance, or a method to intervene in incidents of crime in real-time. Whether it is a violent assault, sexual assault, theft under or over $5,000, murder or kidnapping, biometrics is an “after the fact” investigative mechanism. If used ethically and within parameters that preserve the privacy of all citizens 100% of the time, perhaps there would be no need for alarm – but that is incredibly unlikely. As more agencies begin to use this technology, the lack of regulatory oversight is bound to create an enormous pervasion of your privacy – and you may never know about it.

Cannabis Legalization 2018

On October 17, 2018, which is just 1 short day away, cannabis becomes legal across all of Canada.


Cannabis legalization marks a huge shift in public policy, law, and will propel an industry that has existed in the shadows, into the limelight. While both federal and provincial governments have been candidly saying that legalization will not be perfect right away and will be a work in progress, most Canadians are viewing legalization as a step in the right direction as so many lives have been negatively affected by cannabis prohibition.

So, what will happen on October 17? The naysayers want you to believe that there will be a proliferation of crime in the streets. Stoned zombies walking around town. A dramatic rise in impaired drivers. However those that are educated on the subject know that the sky won’t fall and society will continue to function just as it did today, on October 16. What will change is that the millions of cannabis consumers in Canada won’t have to worry about being arrested (if they stay within the parameters of the new cannabis laws) and communities that allow for retail sales will be able to collect millions in tax dollars that can be pumped right back into public programs and infrastructure.

For a variety of reasons, there remains a considerable stigma associated to cannabis consumption. However as time goes on and people realize the benefits that legalization will bring, I predict that the stigma erodes and that society will regard cannabis favorably.

 

MEDIA RELEASE – HOPCRAFT, Michael – AKA “The Reptile Guy”

In early July, the BCSPCA announced charges against Mr. Hopcraft under the Prevention of Cruelty to Animals Act and the Veterinarians Act after viewing a video posted on Mr. Hopcraft’s “Wild Education” Facebook page showing him relieving a blood python of a bowel obstruction.

Contrary to what the BCSPCA has alleged, this procedure did not cause the python any harm, pain, nor discomfort. In fact, the python was relieved of a 6-month build up of excrement in its bowel track, which was surely causing it incredible discomfort.

Today, the python is alive and well, as confirmed by its happy owners.

While Mr. Hopcraft takes these charges very seriously, we take the position that this is nothing more than the BCSPCA’s attempt to, once again, slander Mr. Hopcraft in the Court of Public Opinion and try to put him out of business.

As many of you know, Mr. Hopcraft has considerable knowledge and more than 18-years experience in handling and caring for exotic animals. For years, Mr. Hopcraft has been educating the general public on television, in your children’s schools, and at your community events. Over these years, Mr. Hopcraft has consistently demonstrated that his primary objective is to ensure the well-being of his animals, many of which come to him as neglected or abandoned pets.

Furthermore, since the BCSPCA publicly announced charges against Mr. Hopcraft, numerous veterinarians in British Columbia have reached out and denounced the BCSPCA’s allegations towards him. Their consensus is that the python suffered no harm, and that if the python were to be sedated in any way (which the BCSPCA suggested ought to have happened) that the python could have experienced complications and/or died.

Mr. Hopcraft will meet these charges in a court of law and until his trial date he is to be presumed innocent.

Finally, Mr. Hopcraft, and his Wild Education organization, will proudly continue to care for its animals and he looks forward to continuing to educate you all about them.

Jason Tarnow

Legal Counsel to Michael Hopcraft

High Risk: Marginalizing the Mentally Ill

A Justice of the BC Supreme Court refused to label    Allan Schoenborn as a “High Risk Offender”, meaning that designation has still not been successfully applied since it was introduced by the Harper Government.

Allan Schoenborn was found guilty, but not criminally responsible for the murders of his 3 young children, whom he believed had become victims of sexual abuse. Psychiatrists who assessed him unanimously agreed that he had been suffering from delusions and other symptoms consistent with a schizoaffective type disorder. As a result, it was determined that he did not bear legal culpability for his actions.

Although he was found to not be responsible for his actions, he was remanded to Colony Farm, a Forensic Psychiatric Hospital, for an indefinite period of time (as is standard with all NCR offenders).

The purpose of the Not Criminally Responsible, High Risk Offender legislation is aimed at designating offenders found not criminally responsible by reason of mental disorder as “high risk” if it can be proven that they pose a serious threat of inflicting grave physical or psychological harm to another person.

This legislation is strictly applicable to offenders found not criminally responsible – in essence, it is punitive legal recourse only available for individuals who have already been deemed as severely mentally ill.  

In her decision, Justice Martha Devlin determined that there was no reason to believe that Schoenborn met the criteria necessary for a High Risk designation. She noted that his current mental condition, along with the opinions of the experts overseeing his care, does not reflect him posing a serious threat to the public.

If the designation had been granted, it would have excluded Schoenborn from receiving escorted outings into the community, and would create a 3 year period between his review board hearings, as opposed to 1 year as is current procedure.

One of the biggest concerns we see in this legislation, is the effect it may have on offenders who should be entering a plea of not criminally responsible. The problem is that if an offender is likely to meet the criteria of a High Risk Offender once being deemed NCR, they may opt to take a determinate jail sentence simply because a High Risk Offender designation could seriously impede their ability to regain freedom from the psychiatric facility where they are being held. If an Accused person is told “plead guilty and you’ll get 10 years in jail” or given the option of “if you establish a NCR defence, there is a risk of a High Offender Designation, and I can’t tell you with any certainty whatsoever when, or if, you will ever be freed”, which option will likely seem more attractive?

Interestingly enough, Mr. Schoenborn’s high profile case was basically singled out by Stephen Harper when the “High Risk Designation for NCR Offenders” legislation was tabled in 2013. The decision by Justice Devlin demonstrates why impartiality and transparency are vital to the survival of judicial process: although the facts related to this case are heinous and disturbing, a path has been carved for Mr. Schoenborn, and Justice Devlin refused to hinder his progress. His NCR designation was not established in haste, and each step of his treatment since that time has been methodical and closely monitored. He requires intensive treatment and rehabilitation in order to, one day, have an opportunity at freedom.

Navigating through the criminal justice system as an Accused person is an intimidating experience. It is compounded when you are dealing with a mental illness. We are experienced in liaising with clients who suffer from severe mental health problems. We understand that compassion, respect and understanding are of fundamental importance when confronting with these issues. We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.

Smoking and driving: What’s to come

Ah, Canada.

Home of poutine, maple syrup, hockey, and….marijuana.


Some of the most highly coveted strains in the world are (apparently) found here in British Columbia. And finally, after Harper’s “War on Drugs” admitted crushing defeat, our Government is ready to rake in the dough from what will likely become one of Canada’s most profitable sectors: the sale of government regulated cannabis.

Of course news that Canada will finally be legalizing and regulating the sale of marijuana has received mixed reactions. Generally, though, the feedback has been positive. Taking marijuana out of the hands of drug dealers and instead putting it in the pockets of politicians seems like an excellent idea – right?

But on a more serious note, the legalization of marijuana brings forward a myriad of other issues. One of the most concerning topics is how police will combat drug-impaired drivers. Currently, police are permitted to conduct Standardized Field Sobriety Tests if they suspect a driver is drug-impaired. If the police do believe the person is drug impaired, a doctor monitored blood test must be conducted. Due to a lack of resources, it is often not practicable for police to transport the suspect to the hospital for such testing. As a result, these matters are generally less likely to be prosecuted.

Let’s be realistic: it is highly unlikely that anyone has been refraining from marijuana use while awaiting news of legalization. While we may see increased use over all due to the fact that certain retailers will be licensed to sell marijuana (think Shoppers Drug Mart and London Drugs), the fact of the matter is that people have been driving stoned for years – but the legalization of marijuana is likely to put more stoned drivers on the road. Our government is prepared to fight back by implementing new legislation that gives the police more authority to test suspected drug-impaired drivers roadside. Here’s the proposal:

  • Allow police to demand oral samples at roadside from suspected drug-impaired. An instrument similar to an Approved Screening Device is currently being manufactured and tested;
  • Allow police to proceed with a drug recognition evaluation or blood sample in circumstances where they have reasonable grounds to believe that an offence has occurred.
  • Allow police to provide opinion evidence in Court regarding their belief that a driver was impaired by a drug at the time of testing. No expert opinion from an external source would be required. This eases the burden on the prosecution to prove the elements of an offence.

Keeping our roadways safe is something every single person, motorist or pedestrian, can get behind. In doing so, however, it is important that we uphold the values contained in our Charter – i.e. no motorist should be arbitrarily detained, which could be a direct result of a simple traffic stop turned drug-impaired investigation if this new legislation succeeds through Parliament. Police officers are not, by virtue of their employment, drug recognition experts. That knowledge comes from medical training which is obtained through intensive study under skilled professionals.

If the proposed legislation does succeed it will be scrutinized through various Charter challenges, prompting amendments to the legislation. It will likely fare similar to how the IRP regime was, and still is, highly criticized by many professionals.

If you are pulled over and police suspect you are under the influence of marijuana or any other drug, the first thing you should do is remember your right to silence. The only exceptions to the silence rule:

  • Identify yourself upon request;
  • Request to phone 604-278-0555 and speak with David Tarnow or Jason Tarnow.

Our firm is highly skilled in dealing with impaired (alcohol or drug) driving cases. While it may seem like an “open and shut case” with the evidence stacked against you, this area of law is extremely complex and requires the attention of a seasoned criminal defence lawyer. With over 50 years combined experience, the lawyers at Tarnow Law Offices have the knowledge and strategies to help you through this incredibly stressful time.

We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow.

Pass from Parliament: New Bill provides “limited immunity” for Good Samaritans

It has been over one year since Dr. Perry Kendall to declare a Public Health Emergency in British Columbia.

That emergency announcement has not been retracted, but now, the Federal government is beginning to take additional steps to combat the ongoing crisis.

On May 2, 2017, Bill C-224, to be known as the Good Samaritans Drug Overdose Act, was unanimously passed in the House of Commons by MPs from all parties.

The bill aims to ensure that individuals who seek emergency help for someone suffering from an overdose can do so without fear of being prosecuted for drug possession offences. Additionally, it will protect those same individuals from facing breach charges related to drug possession.

The passing of Bill C-224 is fundamental in encouraging anyone witnessing an overdose to seek emergency medical treatment for that individual.

It is a very bold (and extremely necessary) stride in fighting back against one of the most lethal killers on the streets of British Columbia, which has claimed over 1,000 lives in the past 5 years.

Perhaps 1,000 doesn’t seem like a huge number – but do remember to that in the entire year of 2012, there were only 12 deaths attributed to Fentanyl overdoses.

In 2013, that number jumped to 50.

Fast forward to 2016, and that number climbs to 575 (roughly 47 people per month).

There is no question about the existence of a relationship between criminality and drug abuse. The two are not mutually exclusive, but are by no means estranged either. There is a direct link between them – profiting from crime (theft, fraud, etc) is the often only way to fuel addiction.

Our Provincial Government, however, is not obtuse to the unique circumstances that plague Vancouver’s drug scene. Vancouver’s Downtown Community Court is the first of its kind in Canada and serves roughly 1,500 people per year. It is a purpose-designed courthouse, and strives to bring resources for justice, health, and social services to the Vancouver community. Matters will be referred to the Downtown Community Court when the offender requires assistance to deal with underlying issues such as homelessness, substance abuse, and mental health problems.

With enactment of the Good Samaritans Drug Overdose Act, citizens do not have to worry about being penalized for seeking emergency assistance for someone who is overdosing. And rightfully so. Our government’s first priority should be harm reduction for every individual battling addiction, with no agenda to balance that objective with the war on drugs.

Bill C-224 does not however provide any immunity from prosecution for drug trafficking or other drug related offences.

There could not be a worse time to find yourself charged with an offence related to Fentanyl. Being charged with possession in circumstances unrelated to those discussed above can result in a lengthy term of incarceration, lifetime travel restrictions, and a host of other consequences. Contact a Vancouver Criminal Lawyer at Tarnow Criminal Law today for a free consultation.