COVID-19 UPDATE FROM TARNOW CRIMINAL LAWLearn More

Predictive Policing: Brave New World

In one of our previous posts, we discussed biometric technology and the role it plays in Canadian law enforcement. It is, however, only one of the “predictive” tools utilized by the police in relation to criminal investigations.


A new report by the Citizen Lab at the University of Toronto goes into alarming detail regarding growth of algorithmic policing methods, and how this technology compromises the privacy rights of Canadian citizens. The report is incredibly thorough and comprehensive, delving into how this controversial technique offends various sections of our Canadian Charter of Rights and Freedoms. Firstly, though, it is important that our readers understand what algorithmic policing is.

The overall success of any algorithm is the system’s ability to gather, store, and analyze data – with law enforcement’s methodology being no different.  A “location focused” algorithmic approach seeks to determine (predict) which areas are more likely to see criminal activity. The algorithmic system in these pursuits analyzes historical police data to identify geographical locations where crimes are, in theory, more likely to be committed. If this sounds familiar to you, then you’ve likely heard of, or accessed, the Vancouver Police Department’s GeoDash crime map – an online tool where you can navigate a map of the City of Vancouver by crime occurrence. You can choose from a variety of offences on the dropdown list, including homicide, break and enter, mischief, theft, and “offences against a person” which likely includes a variety of crimes such as sexual assault, assault causing bodily harm, and uttering threats. By looking at this map, you get an idea of which neighborhoods in Vancouver are most vulnerable to crime – except that it’s a little bit more sophisticated than that, and goes far beyond simply dropping a pin on the map. The public can see where the crime took place, but not who is alleged to have committed it.  The offender’s personal information is logged, in as much detail as possible, and becomes part of a larger system dedicated to predictive surveillance – i.e., it creates a profile of which individuals are more likely to commit a particular crime. This profile can be used to identify people who are “more likely to be involved in potential criminal activity, or to assess an identified person for their purported risk of engaging in criminal activity in the future”.

While this information is definitely concerning, there is another issue:  we have very little insight into the extent that this technology is being used. We know that the methods by which police gather information have historically discriminated against minority groups and those living in marginalized communities. This seems to guarantee that the VPD’s use of algorithmic investigative techniques relies on data that is often obtained through biased methods. We know that black and indigenous individuals are disproportionately represented in the correctional system, which can only mean that they are disproportionately represented in respect of these algorithms.

Although not everyone agrees that systemic racism exists within the VPD, the calls to address, unravel and mitigate the harm to marginalized groups continue to amplify. The idea that information collected under the apprehension of bias will not only remain on record, but will be used to further future investigations, is an indicator that Canadian law enforcement’s road to redemption will likely be a bumpy one.

Access to Justice: An Essential Service

High on the list of things that have changed due to COVID-19 is our perception of what truly qualifies as an essential service – the transportation of goods by freight haulers, grocery stores and pharmacies, waste management and sanitation, and the list goes on. Service providers in these sectors are now being recognized for their significant contributions to our communities. In recent weeks, safety measures have been formulated and established, such as the installation of acrylic screens to act as a barrier between cashiers and customers, temporarily suspending the use of cash, and constantly monitoring supply stocks and evaluating the best methods to ensure that protective personal equipment is available to those working in healthcare.  

But what about the justice system?


On March 18, 2020, court operations were abruptly suspended in BC. Mass adjournments of almost all trials, for those detained and those awaiting trial free in the community, has created uncertainty for accused persons and for their counsel. It has also highlighted systemic flaws that have been dismissed for far too long.

The Court of Appeal of BC was the first to announce that, beginning May 4, 2020, appeals (all appeals, not just those deemed urgent) would be heard using the platform “Zoom”. A notice from the Chief Justice of British Columbia elaborated further and noted that the courts would use Zoom only until the government supplied a “permanent, enterprise videoconferencing solution”, lending likelihood to the idea that some of the interventions relied upon during the COVID-19 pandemic could become permanent adaptations.

COVID-19 emphasized the court systems’ vulnerability to interruption. At some point along the line, preference to proceed with business as usual was prioritized over adjusting to function optimally in a society that is increasingly reliant on digital mechanisms.

Currently, much of the paperwork involved in criminal proceedings is processed manually by court services staff (with the exception of some electronic documents) at the registry. Rules for fax filing vary by registry, which often creates confusion for counsel.

Here are some examples of what modernization could look like:

Change

Effect

Online court schedule for all levels of courtCounsel can manage their court schedule with more flexibility and can coordinate appearances in various jurisdictions with other counsel to maximize efficiency
Video-conferencing from correctional facilities to the office of counsel and to the courtClients have more personal interactions with their counsel. Visits to the correctional centre can be limited (not replaced completely). If those in custody can appear exclusively by video, it reduces the number of inmates being transported via vehicle, saving time, money, and sheriffs’ resources
Enhanced online filing for court documentsFewer issues with errors relating to form. Court services staff spend less time on data entry manual processing.
Digital court filesCourt services staff can access all materials in one system and forward materials as needed to judicial staff. Storage of materials digitally saves an enormous amount of space. Archived files can be easily obtained rather than being stored “offsite”. Enhanced security for all files. Counsel could access court documents, such as a Record of Proceedings, online instead of having to make requests to court services staff
Digital disclosure transferAll disclosure would be digitized, allowing law enforcement, crown counsel, court staff, and defence counsel to exchange documents without delay. Significant reduction in paper usage and courier/postage costs.

While other sectors prioritize adopting innovation, the court system has all-but ignored important opportunities for tech reform. Budgetary limitations are a frequent excuse. And of course, cost is an important factor – but it should not override value. The technology exists and has the potential to be extremely advantageous in the courtroom, and is often utilized more frequently in more remote jurisdictions such as Prince George, BC and throughout the Yukon Territory. Due to the logistical difficulties associated with residing in a remote location, video-conferencing is often used at trial for out-of-town witnesses.  

Before the era of social distancing and COVID-19, there seemed little reason to forge ahead towards modernization with any sense of urgency – the old adage “if it ain’t broke, don’t fix it” comes to mind – but now, we simply don’t have a choice.