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Systemic Racism, eh?

 “Systemic racism is so rampant in the United States, I’m from Canada so I can’t even imagine what that must be like!”
“Police brutality in the US makes me proud to be Canadian”

The two statements above reflect a dangerous and widespread misconception held by many Canadians as they observe growing unrest in the United States:

“Deaths of minorities at the hands of law enforcement just isn’t an issue here”

Of course, nothing could be further from the truth.

Systemic racism exists in institutions across Canada – and an analysis of police brutality against minorities performed by CBC reveals some startling data.

Between 2000 and 2017, CBC was identified 461 fatal encounters between law enforcement and civilians. The RCMP– Canada’s largest and only federal police force – is responsible for the highest number of incidents at 118 casualties, followed by the Toronto Police Service at 52, and the Service de police de la Ville de Montreal at 32. The data demonstrates that these occurrences continue to rise steadily across the country.

When looking at the study, it is obvious that Caucasian individuals represent the largest number of victims per ethnic group, composing roughly 43% of all casualties identified. They also represent nearly 80% of Canada’s total population.

Indigenous victims represent roughly 16% of all casualties identified, but account for less than 5% of Canada’s total population.

Black victims represent roughly 10% of all casualties identified, but account for less than 3% of Canada’s total population.

22% of the victims were unable to be identified by ethnicity.

These facts are alarming and highlight a trend of violence by law enforcement against identifiable minorities. Aggravating circumstances further, it is estimated that mental health and substance abuse issues afflicted approximately 70% of the 461 victims.

The data further reveals that the majority of these occurred in urban areas with diverse cultural communities – not within areas densely populated by minorities. What this means is that of the percentage of the 461 fatalities that involve people of color is grossly disproportionate to the overall population of the areas affected.

Gun related deaths accounted for over 71% of the 461 fatalities, use of restraint at just shy of 16%, physical force at 1.3%, use of an intermediate weapon (a tool not designed to cause death with conventional use, such as a baton) at 1.1%, and “other” accounting for 10.1% of deaths.

Perhaps most shocking of all is that these statistics have not been compiled and presented by the organizations with the most reliable sources of information – the law enforcement agencies themselves.

The analysis conducted by CBC provides a glimpse into the systemic racism that is alive and well within law enforcement agencies across the country, but it hardly tells the entire story.

The data relates only to fatalities – it does not represent the wrongful arrests and prosecutions of minorities in Canada, the disproportionate sentences that are imposed, or the loss of dignity and liberty. 

It does not represent the interactions that don’t result in an arrest or charges, nor does it represent the victims of racism and bias who will never have the opportunity to tell their stories.  

Mission Impossible: Managing COVID-19 in the Canadian Correctional System

On March 18, 2020, the BC court system responded to the coronavirus pandemic swiftly and without hesitation, reducing operations by the likes of which criminal counsel simply hasn’t seen before. Once it was confirmed how rapidly COVID19 spreads, the crowded confines of publicly accessed courtrooms were immediately deemed inappropriate – dangerous even. Since courtrooms often yield a congregation of some of society’s most vulnerable people, it made perfect sense to act defensively. These decisions, and many others effecting the justice system, were made only one week after the World Health Organization declared a global pandemic on March 11, 2020.

Unfortunately, there was a noticeable absence of urgency when it came time to protect the vulnerable inmate population overcrowded and totally confined within the walls of Mission Institution.


“In the worst-case scenario, CSC will need to order more body bags and find cold storage to stack up the bodies of those whose lives will be lost that could have been saved”Justin Piche, criminologist, Criminalization and Punishment Project at the University of Ottawa

On March 31, 2020, federal Public Safety Minister Bill Blair recommended that the Correctional Service of Canada (“CSC”) immediately consider the release of non-violent inmates to mitigate the unavoidable reality that the virus could, and would, devastate the wellbeing of prison populations. His recommendation came on the heels of the CSC announcing the first two positive COVID-19 cases in federal institutions in Quebec.

On April 4, 2020, the CSC announced 4 confirmed cases at Mission Institution, leading to a lockdown of the facility.  

By April 8, 2020, there were 11 confirmed cases, all inmates. Nearly one month had passed since the WHO declared a global pandemic.

By April 18, 60 inmates and 10 staff tested positive, and the CSC marked its first coronavirus related inmate death, exactly one month after the courts effectively shut down.

By April 25, 2020, 106 inmates and 12 correctional officers were confirmed to be infected, representing the largest outbreak in the Canadian Correctional System. On this date, the CSC advised that all inmates at Mission Medium Institution had been tested, but in any event, new cases were continuing to be discovered.

While disturbing, none of these developments are surprising. The largest incidence of outbreaks has been at long-term care homes – combining close quarters, limited mobility, and care-workers employed at more than one facility is a recipe for disaster when it comes to COVID-19, a pathogen that spreads and infects without discrimination. The same vulnerabilities exist within the correctional system, where they are intensified. Inmates and corrections staff are simply unable to practice crucial social distancing. Personal protective equipment for inmates has not been prioritized as it has in other sectors, despite these individuals being at a much higher risk of getting sick.

The CSC responded to COVID-19 by prohibiting visits to inmates, temporary absences, work releases, and inmate transfers between correctional facilities. While these steps likely helped to curb the spread of the virus, as a whole, they are grossly inadequate. Without a vaccine, social distancing remains our greatest defence against the virus. For the inmates at Mission Institution and those incarcerated at facilities across Canada, proper protective equipment is hard to come by, but hope is even harder.

Semi-Automatic: Fully Prohibited

On April 18 and 19 2020, Gabriel Wortman was solely responsible for the largest mass shooting in Canadian history, which claimed the lives of 22 innocent people including veteran RCMP Cst. Heidi Stevenson. Wortman, a 51 year old denturist, went on a rampage in Portapique, Nova Scotia using firearms that police suspect were obtained illegally, likely from the United States. Eventually he was cornered at a gas station and died in a shootout with police.

Just shy of two weeks later, Prime Minister Justin Trudeau announced a ban on approximately 1,500 different models of military grade assault-style weapons.  The announcement came as a surprise to no one – back in 2015, the Liberal government campaigned on promises to address gun violence. In addition to banning assault-style weapons, the Liberal government vowed to implement a buy-back program for prohibited firearms, establish red-flag legislation, impose tighter restrictions for proper storage of firearms and licensing, and to grant municipalities the power to ban handguns.

Trudeau’s announcement has sparked outrage among gun owners and enthusiasts, although overall most Canadians are in favour of stricter regulations regarding firearm ownership.

It’s important to understand what the ban actually applies to. It prohibits the sale, transport, import and use of semi-automatic weapons – Ruger Mini-14, M14 semi-automatic, Beretta CX4 Storm, and CSA-VZ-58 to name a few. Fully automatic weapons are already banned in Canada. Semi-automatic firearms were previously classified as either restricted or non-restricted, and will now be classified as prohibited.

So what do you do if you already have these in your possession? That depends.

Due to their classification as prohibited weapons, effected firearms will essentially become useless. In any event, gun owners will not be forced to relinquish them – but they will be provided with an incentive to do so. Though unclear at this point, the Canadian Government will be implementing a “buy back” program for all applicable firearms – aka, you’ll be paid to turn them over. For gun owners wishing to retain their firearms, there will be an option to be “grandfathered” into ownership. Certain terms and restrictions will apply, and will likely turn these weapons into collector’s items.

Unlike in the United States, our Charter does not include a constitutional right to bear arms

For those who choose to do nothing and simply retain their weapons, the consequences could be severe. Being found in possession of a prohibited firearm comes with the potential of spending years behind bars and a criminal record that could negatively impact employment and traveling prospects for life. The Canadian Government has instituted an amnesty period (waiting period) to allow for gun owners to consider their options. In any event, all gun owners must be in compliance, one way or another, by April 2022.

Though there is definitely a tight-knit community of lawful and responsible gun owners in Canada, the point of the ban is to limit access of tactical weapons among Canadians. Unlike in the United States, our Charter does not include a constitutional right to bear arms – so you can be sure that tighter regulations are on the horizon.

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. 

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.