Filtering by Tag: Politics

Bill C-13: Voluntary Disclosure - Rob Nicholson's Misstatements

Rob Nicholson.jpg

Earlier this week Justice Minister Peter MacKay introduced Bill C-13, the Conservative's much touted cyber bullying legislation.  It’s a massive bill which would amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.

The Conservatives have offered up C-13 as a necessary tool to address the serious problem of online harassment. And there’s a justifiable and strong will among Canadians to modernize the Code to tackle the serious problem of Internet harassment and abuse.

However, only a small part of C-13 actually deals with the problem of cyber bullying.  As I wrote earlier this week C-13 is a wolf in sheep’s clothing.  The majority of C-13 is actually devoted to expanding police powers relating to the search and seizure of personal Internet data.

As I wrote in iPolitics today, new laws are needed to stop cyber-bullying. Unfortunately, most of C-13 has little to do with protecting victims. Instead, this bill would recklessly expand the surveillance powers of the state. It sacrifices personal privacy. It limits or eliminates judicial oversight. It is inconsistent with recent Supreme Court jurisprudence. It's a dangerous bill.

The Conservative party’s arguments in support of C-13  are equally dangerous - they misstate and misrepresent the legislation and its potential impact on the privacy interests.

Voluntary Disclosure

One of the troubling aspects of C-13 is the provisions that would expand the ability of police to obtain Internet data in the absence of any judicial oversight.

During the first debate on C-13  Minister of Defence Rob Nicholson defended the voluntary disclosure provisions, saying:

Mr. Speaker, it is certainly politics as usual for the Liberal Party. I will give the member this: certainly his comments are completely consistent with the Liberal approach over the last seven and a half years, which is to look for anything, any excuse, anything the Liberals can hang their hat on to oppose government legislation that would either crack down on crime or would update the Criminal Code, and in this case, go against cyberbullying. They are always looking for something, and the ironic part about it is the part that this individual is criticizing. He has got it way off base.

In terms of the bill, the old Bill C-30 that he referred to, the provisions that he and others criticized the most are not in the bill. The provisions here need judicial authorization.

I bring the hon. member's attention to one section that was actually passed by a Liberal government. He had a problem with the voluntary production of preservation orders. I would refer him to section 487.014, which says:

For greater certainty, no production order is necessary for a peace officer or a public officer enforcing or administering this or any other ask a person to voluntarily provide to the officer...

We are only adding it to preservation orders. What is this individual's problem? It is already in the Criminal Code.

The problem with Mr. Nicholson’s statements is that they are simply untrue.  

Obfuscation on the part of the Conservatives about C-13 should not be surprising.  After all not only is C-13 itself an expert lesson in trickery and deception - its a trojan horse.

Escaping the notice of Mr Nicholson, the voluntary disclosure provisions proposed in C-13 remove the necessity for a police officer to actually be enforcing the Criminal Code before seeking disclosure of personal Internet data.  Further, the bill provides blanket civil and criminal immunity for any telecommunications company who feeds information to the police.

487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

The Criminal Code currently limits the ability of police to seek voluntary disclosure of data by a telecommunication company to circumstances where they are engaged in legitimate investigations (‘enforcing or administering this or any other Act of Parliament’).  

This very reasonable limit on police power serves to prevent fishing expeditions and the mass collection of data.  C-13 expands the permitted scope of voluntary disclosure by removing the requirement that police actually be engaged in an investigation.  

In essence, the police will now be able to ask companies to turn over data on anyone, anywhere, at any time, for any reason (or no reason).

The limitation of any liability for complicit telecommunications companies makes matters even worse.  Simply put, the C-13 leaves no legal incentive for companies to be cautious in the dissemination of data — and no recourse for individuals whose privacy is compromised.

This is all especially troubling given the recent evidence that the Conservative government was complicit in spying activities on Canadian soil.

Mr. Nicholson misleading defence of C-13 demonstrates that he is either grossly uninformed about his own party’s legislation or he that he takes his audience for fools.  

Bill C-13 does not “only adding it to preservation orders” to the voluntary disclosure regime.  It does much, much more -  it represents a dangerous erosion of personal privacy.  

Mr. Nicholson's statements only serve to better expose C-13 for what it is - a trojan horse for expanded police power.


Evidence, Heroin, and Ideology Addicts

This week Sun Media pundit Brian Lilley wrote an opinion piece titled: 'Tax dollars for Heroin".  

Harm reduction models of addiction treatment are nothing new.  Typically harm reduction models for opiate addiction have focused on methadone treatments.  There has however been some support recently to expand harm reduction treatment to include the limited use of prescription heroin for patients who are at the end of other treatment options and where methadone treatment has not been effective.

Leaving aside the spin put on the issue by Lilley heroin treatment is not about tax dollars but about evidence based policy.

In the recent Speech From the Throne the Conservatives stated:

"Canadian families expect safe and healthy communities in which to raise their children. [...] Our Government will [...] Close loopholes that allow for the feeding of addiction under the guise of treatment."

The question is: does closing loopholes that would allow heroin based treatment make Canadians healthier and safer?

As a excellent starting point Arron Wherry has written a fantastic series of articles (here, here, here) on the issues.  As Wherry points out Health Minister Rona Ambrose told the CBC:

There is no evidence at this point that heroin—giving heroin to heroin addicts—is any way an effective treatment...

Wherry goes on to detail some of the evidence that supports heroin treatment,  including a lengthy report by the European Monitoring Centre for Drugs and Drug Addiction.

Is our Health Minister not aware of this research or is she ignoring it?  Quite frankly I am not sure which is worse?  Either way Ambrose's views are entirely consistent with the Conservatives' abandonment of any pretense of evidence based policy decisions.

In his piece Lilley quotes Justin Trudeau as saying, “I respect science, I respect scientists who have done studies".  Lilley goes on to say:

"Except not all scientists, not all doctors agree with this sort of study. Trudeau and Davies don’t just want to portray those who oppose giving heroin to addicts as anti-science, which we are not."

I am not sure exactly what studies Lilley is referring to (I assume possibly this opinion) but he is quite right - there is rarely a consensus by all experts on any issue. 

The real issue is not that there can be disagreement amongst experts but that the Government must honestly evaluate all evidence before making decisions, something Ambrose has utterly failed to do. 

The same experts who disagree with heroin treatment do seem to support other harm reductions methods such as methadone treatment.   Lilley makes it clear that although he supports addiction treatment (which is commendable), he does not support harm reduction:

"I use my own money to support drug treatment centres that don’t believe in the harm reduction method but still have great success in helping people with strong addictions and criminal backgrounds to turn their lives around. "

It is well and good for individuals to discount evidence when allocating their personal funds. It is another matter when elected officials and policy makers ignore evidence.  

Trudeau is not as Lilley suggest using science to 'whitewash' his ideology.  In fact the opposite seems to be true.  The Conservatives continue to ignore evidence to justify their ideological position. 

Lilley is correct that when the Government ignores evidence courts can often become involved in litigation about policy issues.  Perhaps if the government took its obligations to Canadian's seriously and actually considered all evidence (not just the evidence that supports their positions) we would hear less outrage about interventionist courts.   

As Lilley says: Don’t say you weren’t warned.

Thoughts on the Speech From The Throne

Yesterday the Governor General delivered the Conservative Government's Speech from the throne.  The full text of the speech can be found here

The speech dealt with many matters that are of fundamental importance to Canadians - like the ability to purchase unbundled TV channels.  Directly following this heady TV policy announcement the Conservative Government laid out their criminal law priorities.  Yesterday I wrote that I expected to be disappointed with the announced criminal justice policies and I was. 

With respect to criminal law policy here is an excerpt of the Conservative announcements: 

Supporting Victims and Punishing Criminals

Our Government believes that the justice system exists to protect law-abiding citizens and our communities. For too long, the voices of victims have been silenced, while the system coddled criminals. Our Government has worked to re-establish Canada as a country where those who break the law are punished for their actions; where penalties match the severity of crimes committed; where the rights of victims come before the rights of criminals.

Our Government will introduce a Victims Bill of Rights to restore victims to their rightful place at the heart of our justice system.

Canadians are rightfully alarmed when violent offenders found not criminally responsible for their actions are released into our communities. Our Government will re-introduce legislation to ensure that public safety comes first.
But we must do even more to protect our children. Child predators should never be let off with only a single sentence for multiple crimes against children. Canadians demand that those who prey on our children pay the full price for every devastated life. Our Government will end sentencing discounts for child sex offenders.
It is also unacceptable that dangerous and violent offenders are released into our communities before serving their full sentences. Our Government will end the practice of automatic early release for serious repeat offenders.
But for the worst of all criminals, even this is not enough. Canadians do not understand why the most dangerous criminals would ever be released from prison. For them, our Government will change the law so that a life sentence means a sentence for life.
Canadians also know that prostitution victimizes women and threatens the safety of our communities. Our Government will vigorously defend the constitutionality of Canada’s prostitution laws.

As expected there is not much evidence based policy to be found here.  More troubling is the fact that the Conservatives continue to fundamentally miss-frame any debate about criminal law policy.

The Conservatives contend that "For too long, the voices of victims have been silenced, while the system coddled criminals." 

This is simply untrue.  There are many sections in the Criminal Code that apply to victims (or alleged victims).  Complainants can, in the appropriate case, testify via video link or behind a screen so as not to face the accused.  Complainants can seek the assistance of support persons while providing testimony.  In some cases complainants need not testify and their prior statements can be read into evidence.  In all cases victims have access to a robust victims service office.

Additionally, after a conviction and when a court determines the appropriate sentence, victims have the right to provide a victim impact statement - they are not silenced as the Conservatives claim.  Courts must consider victim input.  Section 722 of the Criminal Code directs:

For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. 

Quite simply, victims are not silenced and to suggest otherwise is misleading. 

More importantly criminals are not coddled - again the Conservative are lacking in intellectual honesty.  The 'criminals' that the Conservatives talk about are actually 'accused persons' - who are presumed innocent.  People accused of crimes have constitutional, statutory, and common law rights; for example: the presumption of innocence, rights against unreasonable search and seizure, and rights against self incrimination.  These rights form the bedrock of our justice system.  Giving life to fundamental rights such as these is not coddling criminals and to suggest any different is disingenuous. 

The Conservatives also announced that it is "unacceptable that dangerous and violent offenders are released into our communities before serving their full sentences."

Indeed the Conservatives go further to suggest that "Canadians do not understand why the most dangerous criminals would ever be released from prison. For them, our Government will change the law so that a life sentence means a sentence for life."

I don't hold out much hope that the government will listed to the evidence about the  benefits of our parole system.

For example, studies have found that:

  • Eliminating early parole produced no consistent effects on crime rates;
  • Parole is advantageous given the increasing human and financial costs associated with prison, investing in effective reentry programs may well be one of the best investments society can make;
  • Supervising offenders in the community effectively can reduce criminality among those on parole or otherwise serving their sentences in the community;
  • Although violations of parole do occur, the number of offenders who meet the terms and conditions of their release provides impressive evidence of the effectiveness of the parole system in Canada.;
  • 50 per cent of offenders who were released directly from prison 12 years ago, without the benefit of gradual and controlled supervision, were later re-admitted for having committed new offenses. By contrast, only 10 per cent of those who were released on parole and completed their sentences under parole supervision, were subsequently re-admitted to federal penitentiary with new offenses.

Obviously there can be a debate about the evidence for or against any policy initiative.  However, in addressing release and parole the Conservatives ignore their own literature and give no confidence that there will be a legitimate debate or examination of the evidence. 

As a starting point I would commend the Conservatives start by reading the easy to understand 'Myth vs. Reality' fact sheet produced by the Parole Board of Canada.

Perhaps Canadians don't have a full understanding of the fundamental principles of our criminal justice system.  Education and examination of the evidence over blind ideology should be the answer. 

The Conservative's reckless disregard for evidence based policies does not make us safer. Maybe the Conservatives know this.  Perhaps appeasing their ideological base and not enhancing public safety is the Conservatives ultimate goal.  



Ottawa Police, The Charter, and Chief Bordeleau's Large Hands

On October 12 the Ottawa Citizen published an editorial asking if Ottawa Police work is reckless due to a lack of training in Charter values.  It appears the Citizen agreed with me on the issue of lack of police training - I posted an eerily very similar opinion on October 10

It remains shocking that Ottawa police officers not required to undergo formalized continuing eduction with respect to their powers and scope of authority.

Today in an interview with the Ottawa Citizen's Andrew Seymore, Ottawa Police Chief Charles Bordeleau maintained that he was satisfied with his officers' Charter training.  In explaining the recent acquittals due to Charter breaches the Chief said:

“Search and seizure is extremely complicated and becoming more complex” 

Does this very statement not make the case for improved mandatory continuing education for Ottawa police officers?  Complexity of the law should not be a shield to education but the reason for it.

Bordeleau went on to say that Charter breaches are exceptional and that there are only a handful of acquittals due to police Charter breaches.

This protectionist reaction misses the point.  

Chief Bordeleau must have very large hands; Charter breaches are not exceptional.  There are numerous reported cases in addition to the ones quoted by the Ottawa Citizen and in my prior post.  For example in 2011 an Ottawa judge made the following comments in excluding a large amount of cocaine:

A private residence is sacrosanct. It is trite law that 'a man's home is his castle' and that residents are free from state interference when they are in their homes. That right is not without its limits. Police may enter a house with permission, when they have a judicially authorized warrant, or when there are exigent circumstances. In this case, none of those circumstances existed. When Jacobs and Edgar entered the residence on Edenvale Drive, they committed an egregious breach of one of the most important rights possessed by the citizens of this country - the right to privacy in one's own home. The public would be horrified

An egregious breach of one of the most important rights possessed by citizens of this country.  The public would be horrified.  But the status quo is fine for Ottawa's Chief?

Examples such as the one above are not so uncommon as to be dismissed.  Judicial findings such as the one quoted above make up only the tip of the iceberg as victims of Charter violations are often not charged with any criminal offence - especially when no evidence is discovered.  Additionally, many charges are withdrawn by the Crown prior to trial due to Charter Breaches.  

That the Ottawa Police Chief would be satisfied with his officers training is simply not acceptable.

In his interview with the Citizen Chief Bordeleau said that Ottawa police officers are not required to take any mandatory training specifically on Charter rights and the force relies on "specialized investigative training, discussions on parade, peer-to-peer training and from computer-based training modules."

These methods of training don't seem to be working given an Ottawa judges comments in one of my cases:

"In this case, I am particularly troubled that a sergeant of the Ottawa police force, an officer with 30 years experience, an officer who is in charge of guiding and supporting other officers and providing advice to constables, an officer who works in general uniform patrol on the streets of Ottawa, is not aware that an accused's right to counsel are engaged on detention. This is particularly troubling given that the officer said he was unaware of the need to advise detained individuals of right to counsel.

What is the downside of giving officers additional training - There is none.  The Chief may be satisfied with the state of his officers training but that does not mean the public should be.

Politics, Law, and Baseball

Politics, law, and baseball are three of my most favourite things. 

I love baseball for it's history, nostalgia, and importantly for the ability to quantify the game through modern metrics.  There are countless books that evaluate baseball using these quantifiable methods, with Michael Lewis's Moneyball being the most famous example (although there are other books I would recommend more highly). 

This new, sometimes called Sabermetric, approach to evaluating baseball focuses on evidence.  True to the scientific method proponents of sabermetrics develop a hypothesis and then look to the quantifiable evidence to evaluate that hypothesis. 

Thus we now know how valuable a stolen base actually is, why one should almost never bunt, and how being a 'clutch' player is mostly a myth. 

Keith Law recently wrote a fantastic article on the problems with the 'clutch' argument.  'Clutchiness' or the supernatural ability to raise ones level of play in high leverage baseball situations, is largely a myth.  It is not supported by the evidence.  It is a narrative (and sometimes a compelling one) which is used in a post hoc fashion to fit our observations.  

What does this have to do with politics and law? 

As I wait anxiously for the Conservatives speech from the throne I can't help but wish that the Conservative Party read Keith Law's articles and other sabermetric writing. 

I have written before on the Conservatives Partty's love of ideology over evidence.  I continue to wish that the Conservatives would look to the evidence when considering policy and developing legislation. 

Canadians' deserve a government that relies on evidence and not partisan post hoc thinking when developing policies and laws.   It is only through the use of evidence and intellectual rigour that we can be confident that policies and legislation will accomplish their states goals.

Sadly I don't hold much hope of finding evidence based policy in today's speech from the throne. 

It is a tragedy when more intellectual rigour can be found between the foul lines than in Parliament.