On May 1, 2020, Prime Minister Justin Trudeau issued anOrder in Councilimmediately banning the use, sale and transport of approximately 1,500 “assault” style firearms. This action was met with criticism from firearm owners, retailers and pro-gun advocates from across the country. A two-year amnesty period for restricted firearm owners will expire on April 30, 2022, which is around the time when Bill C-21 could come into effect.
At its first reading in the House of Commons on February 16, 2021, details about Bill C-21 emerged that created further frustration and confusion among Canadian firearm owners and retailers. Described as “an Act to amend certain Acts and to make consequential amendments (firearms)”, Bill C-21 will make substantive changes to both the Criminal Code and the Firearms Act, both of which are Federal legislation, thus impacting Canadians from coast to coast. It will also amend the Immigration and Refugee Act and the Nuclear Safety and Control Act.
Proposed amendments to the Criminal Code include:
Increasing the maximum penalty of imprisonment for offences under Sections 95, 96, 99, 100 and 103 of the Criminal Code from 10 years to 14 years;
Establishing a procedure that would allow any person to apply for an emergency prohibition order, or an emergency limitations on access order;
Deem certain firearms to be prohibited devices for certain provisions;
Create a new offence for altering a cartridge magazine to exceed its lawful capacity;
Authorize employees of certain federal entities who are responsible for security to be considered as public officers for the purpose of section117.07
One of the most concerning amendments, and the focus of today’s blog, involves establishing a procedure that would allow for any person to apply for an emergency prohibition order, or an emergency limitations on access order. The proposed amendment reads as follows:
Application for emergency prohibition order
110.1 (1) Any person may make an ex parte application to a provincial court judge for an order prohibiting another person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, if the person believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.
An ex parte application does not require notice to be given to the adverse party. This means that any person can make an application to a judge seeking the immediate prohibition (and subsequent seizure) of any of the items described in section 110.1(1). Success on the application is discussed next:
Emergency prohibition order
(2) If, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist and that an order should be made without delay to ensure the immediate protection of any person, the judge shall make an order prohibiting the person against whom the order is sought from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for a period not exceeding 30 days, as is specified in the order, beginning on the day on which the order is made.
The seizure process will unfold one of two ways:
Warrant to search and seize
(4) If a provincial court judge is satisfied by information on oath that there are reasonable grounds to believe that a person who is subject to an order made under subsection (2) possesses, in a building, receptacle or place, any thing the possession of which is prohibited by the order, and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the thing, the judge may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and every authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
Search and seizure without warrant
(5) If, in respect of a person who is subject to an order made under subsection (2), a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person, or of any other person, for the person to possess any thing the possession of which is prohibited by the order, the peace officer may, where the grounds for obtaining a warrant under subsection (4) exist but, by reason of a possible danger to the safety of the person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
The seized items will remain in police custody for 30 days. When the Order expires, the seizing agency (police) must make an application for a Prohibition Order under Section 111(1) of the Criminal Code. This Application requires that the subject of the Order (the firearms/weapons owner) be given notice of the application, and the opportunity to respond in court. At this juncture, there are three ways the seized items can be returned to their owner:
If the hearing does not result in a Prohibition Order being made under Section 111(5);
If the Order issued at the ex parte application is revoked
While this legislation seeks to establish an alternative procedure that gives the public power to seek protection from violence involving firearms and other weapons, it fails to address the possibility that this power could be abused. Currently, the law requires that an individual report their concerns to the police, who would then engage in an investigation to determine whether a seizure is necessary. When citizens assume this authority, there are a myriad of complications that could pose negative consequences not only to the potential subject of the Order, but to whomever makes the ex parte application. It requires that they take the law into their own hands – something that law enforcement regularly counsels against.
Bill C-21 is still in the early stages of the legislative process, but has garnered both support and criticism from those it will protect, and those it will harm.
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.
Anew reportby theCitizen Labat 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, theVancouver Police Department’s GeoDashcrime 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.
Althoughnot everyone agreesthat 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.
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 thefirst to announcethat, 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:
Online court schedule for all levels of court
Counsel 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 court
Clients 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 documents
Fewer issues with errors relating to form. Court services staff spend less time on data entry manual processing.
Digital court files
Court 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 transfer
All 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.