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Bill C-21: Amendment Resentment

On May 1, 2020, Prime Minister Justin Trudeau issued an Order in Council immediately 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:

  1. 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;
  2. Establishing a procedure that would allow any person to apply for an emergency prohibition order, or an emergency limitations on access order;
  3. Deem certain firearms to be prohibited devices for certain provisions;
  4. Create a new offence for altering a cartridge magazine to exceed its lawful capacity;
  5. Authorize employees of certain federal entities who are responsible for security to be considered as public officers for the purpose of section 117.‍07

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.

OR:

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:

  1. No application is made for a Prohibition Order under Section 111(1);
  2. If the hearing does not result in a Prohibition Order being made under Section 111(5);
  3. 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.

 

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.

Body Worn Cameras: What’s The Hold Up?

Over the last couple of months, there has been outcry from the public urging the use of BWC’s (Body Worn Cameras) for Canadian law enforcement. Although initially in response to the growing unrest relating to police brutality in the United States, there are echoes of abandoned intentions from Canadian officials dating back at least a few years. 


Back in 2015, the Office of the Privacy Commissioner of Canada (“OPCC”) issued a publication regarding the use of BWC by police, in collaboration with privacy agencies in Alberta, New Brunswick and Quebec. The remaining Canadian law enforcement agencies from other provinces and territories acted “in consultation”.

For reference: according to the CBC, there were a total of 2 incidents involving the death of individuals at the hands of law enforcement in New Brunswick between 2012 and 2014, 12 incidents in Quebec, and 14 incidents in Alberta. Interestingly enough, British Columbia (on par with Quebec at 14 deaths) and Ontario (with the highest rate of police violence resulting in death in the country at 25 deaths between 2012 and 2014) were only acting in consultation.

The report hails the effectiveness of BWC to capture high quality images, videos, and audio recordings – so effective, in fact, that the OPCC had grave concerns regarding their ability to capture material that could jeopardize the privacy of innocent and uninvolved bystanders.

The report goes on to tout the value of BWC for evidentiary purposes, including analytics so sophisticated that the material obtained would likely be suitable for biometric comparison – aka, facial recognition

There is no arguing the fact that the use of BWC by police has implications for the privacy of citizens in their everyday lives – especially since once fitted, citizens would likely expect on-duty officers to have their devices on a continuous basis as opposed to intermittently.

Benefits of BWC include the ability to review interactions between police and the public, recording communications between the police and suspects in the course of an investigation, identifying potential witnesses, and of course recording interactions between police officers. Many criminal cases involve evidence obtained through the use of dash cams, which provide audio from inside a police cruiser and video from the perspective of the driver. The effectiveness of this technology loses value when the investigation takes place outside of a police vehicle, as the audio often fails to capture intelligible communications between police and a suspect, or between officers themselves. Although the dash cam is kept running, the audio portion is often useless when the interactions between police and a suspect take place outside the vehicle, and the windows of the police cruiser are closed, or if the police/suspect leave the immediate area where the audio is successfully captured.

The report indicates that while continuous recording would undoubtedly provide a greater level of accountability for the actions of police, the threat to personal privacy reigns supreme:

From an accountability perspective, continuous recording may be preferable because it captures an unedited recording of an officer’s actions and the officer cannot be accused of manipulating recordings for his or her own benefit. However, from a privacy perspective, collecting less or no personal information is always the preferred option”

In 2014, the Edmonton Police concluded a pilot project regarding the use of BWC by its officers. The conclusion?:

“The cameras had no effect on police use-of-force incidents and said there was no statistical difference in resolving police complaints”

According to an analysis done by CBC, there were a total of four deaths between 2012 and 2014 relating to officers of the Edmonton Police Service. By comparison, there were 9 deaths in the same period relating to officers of the Toronto Police Service. The results of the Pilot Project may have seen different results in a different jurisdiction.

The Edmonton Police explained that in addition to being ineffective to expose cases of police misconduct, the related expenses were simply unrealistic. Perhaps surprisingly, it’s not the cost of the devices themselves, but the expense to store and manage all of the material collected: somewhere between 6 and 15 million dollars over five years, which also includes hiring personnel qualified for the job. 

Finding the balance between accountability, transparency and oversight of police against the protection of privacy for Canadian citizens is a legitimate and profound task – one that cannot be taken lightly. As the calls for BWC in Canadian law enforcement grow louder, and as Canadians revisit the reality of what it is to be privileged in this country, we can only hope that the values of dignity and equality are recognized as being more valuable than the cost of the equipment that very well could save lives.

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.