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Latest Developments Regarding the Use of Segregation in Prisons

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged, last year the federal government passed legislation to eliminate the use of “administrative segregation” following decisions by the courts in Ontario and British Columbia, which found that placing prisoners in isolation for more than 15 days violated their rights under the Charter and was found to cause long-term psychological damage. This type of segregation, commonly referred to as solitary confinement, allowed prisoners to be isolated in their cells for more than 22 hours a day with no meaningful human contact.

The government replaced administrative segregation with “structured intervention”, which requires prisoners who need to be separated from the general prison population to receive four hours a day outside of their cells and at least two hours of meaningful human contact.

Despite the legislative changes to solitary confinement in prisons, a recent report discloses that prisoners give the structured intervention units a failing grade.

PRELIMINARY REPORT ON STRUCTURED INTERVENTION UNITS

An independent review panel, chaired by professor emeritus of criminology at the University of Toronto, Anthony Doob, appointed by the Liberal government to monitor the solitary confinement reforms released a preliminary report last month.  The results showed that nearly 50% of the structured intervention unit (“SIU”) placements lasted beyond the 15-day threshold.  Of the 1,646 prisoners placed in SIUs, less than 6% of prisoners in the new units were allowed to spend found hours outside of their cell every day.  The report stated that only 46% of prisoners had received the two hours of meaningful human contact on at least half of days in the SIUs.

According to the report, Indigenous and Black prisoners make up a disproportionate amount of prisoners being placed in SIUs.  Approximately 40% of prisoners sent to SIUs were Indigenous and 13% were Black prisoners. 

The authors wrote:

The failure to achieve the four hours out of the cell and two hours of meaningful human contact are, obviously, a special cause for concern.

Public Safety Minister Bill Blair, in response to this report, stated:

This preliminary report raises serious concerns with our progress in implementing the SIUs.  We take the findings of this report very seriously, and we won’t hesitate to address them. …

There is more work that needs to be done to address systemic racism and barriers within justice system, and the federal correctional system is no exception.  By working to eliminate these barriers, we can ensure better equitable reintegration outcomes for Indigenous, Black and other racialized inmates.

‘DRY CELLING’ VIOLATES THE CHARTER

In other news regarding prisons in Canada, a New Brunswick woman argues that “dry cell” segregation violates her rights under the Charter due to its cruelty and lack of basic legal protections

“Dry celling” occurs when an inmate suspected of concealing drugs is confined to a cell without running water or toilets so that their human waste can be examined for drugs. 

Lisa Adams (“Adams”), who was incarcerated for drug trafficking at the Nova Institution for Women, was placed in segregation due to correctional officers suspicion that she had been hiding methamphetamine in her vagina while she was outside of prison on parole.  Adams argues that a section of the Corrections and Conditional Release Act, which allows for the segregation and monitoring of prisoners for suspected drug concealment, violates the rights of Canadians guaranteed under the Charter and should be struck down.

Adams was given the choice of producing the drugs or being placed for 14 days in segregation for observation.  According to Adams, she could not provide the drugs as she was not hiding them.  After 14 days in segregation, she required medical attention for health reasons at which time she submitted to a vaginal exam.  This examination revealed that she did not have the drugs on her, however, Adams was subjected to another two days in isolation.

Adams maintains that she suffered mental anguish due to the prolonged segregation and nearly constant observation by correctional officers, even when she showered or went to the bathroom.  Furthermore, she was only allowed out in the prison yard five times and had no meaningful human contact except for a daily ten to fifteen minute visit by prison mental health staff during her isolation.

Adams argues that while in isolation her Charter rights prohibiting “cruel and unusual punishment”, the “right to life, liberty and security of the person” and her “right to be secure against unreasonable search or seizure” were violated.

The lawyer representing the federal Crown acknowledges that although Adams’ detention was unlawful as the law was not administered properly in Adams’ case, the practice of dry celling can be carried out appropriately and should not be struck down.

Justice John Keith has reserved his decision on this case. 

We will continue to follow any developments in the law regarding solitary confinement and dry celling in Canada’s prisons and will report any updates in this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison LLP at 905-404-1947 or contact us online.  We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges.  For your convenience, we offer 24-hour phone services.

Alberta Appeal Court Ruling Likely to Limit Electronic Device Searches at Canadian Border

Written on Behalf of Affleck & Barrison LLP

Sheldon Canfield (“Canfield”) and Kent Townsend (“Townsend”), both Canadian citizens, were charged with possession of child pornography contrary to section 163.1(4) and with importing child pornography contrary to section 163.1(3) of the Criminal Code.

The criminal charges against both men took place when they re-entered Canada at the Edmonton International Airport in 2014.  Although the charges against the men are unrelated, both men sought an order from the Court under the Charter of Rights and Freedoms that the evidence of the search of Canfield’s cell phone and Townsend’s computer by border officers be excluded at their trials. 

Both Canfield and Townsend had their electronic devices searched by border officers and were found to have child pornography in their possession.  They were both arrested, convicted and appealed the Court of Queen’s Bench of Alberta’s decision not to exclude the evidence obtained during the search of their electronic devices by border officials.  The Alberta Court of Appeal has ruled that the searches by the Canada Border Services Agency (“CBSA”) officers of the digital devices were unconstitutional as the Customs Act imposes no limits on the search of these types of devices at the border.

THE CRIMINAL CHARGES

At the Canadian border, Canfield was flagged for a secondary screening due to his travel patterns and “overly friendly demeanor” after returning home from Cuba.  During this screening, an officer suspected that Canfield had child pornography on his phone.  Canfield confirmed that he did and showed the officer an image of child pornography on his device. 

Townsend was also arrested after being flagged by border officials when returning home from Seattle.  Townsend was selected for a secondary screening due to his five-month travel pattern, his lack of eye contact with border officials and his lack of employment.  He was also carrying 12 electronic devices.  Child pornography images were found on Townsend’s laptop and he was arrested.

At trial, Canfield and Townsend were convicted of possession of child pornography and importing child pornography.  Canfield was sentenced to 18 months in jail and Townsend was sentenced to two years.

THE APPEAL

At their appeal, it was argued that section 99(1)(a) of the Customs Act (“Act”) was unconstitutional as it permitted unlimited searches of electronic devices at the Canadian border.

Section 99(1)(a) of the Customs Act permits Canada Border Services Agency officers to examine “goods” that have been brought into Canada.  This section has been interpreted to allow CBSA officers to search personal electronic devices without restriction.

The written decision by the three judge panel of the Court of Appeal stated:

While the search of a computer or cellphone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy.  … To be reasonable such a search must have a threshold requirement.

According to the Court of Appeal, the trial judge failed to assess the application of section 99(1)(a) of the Act considering the developing technology of personal digital devices.

There is no doubt that there have been significant developments in the technology of personal electronic devices and the way they are used by Canadians (since 1988).  Individuals were not travelling and crossing borders with personal computers or cell phones that contained massive amounts of highly personal information.

The Court ruled that the definition of “goods” in the Act is “of no force” when it comes to personal electronic devices.

The Alberta Court of Appeal found that section 99(1)(a) of the Act was unconstitutional as it imposed no limits on searches of electronic devices by CBSA officers at the border.  The Appeal Court ruled that this section will be of no force and effect for one year to allow Parliament the opportunity to amend the Act.

Despite the Appeal Court’s ruling on the constitutional validity of the section, the convictions of Canfield and Townsend were upheld by the Court based upon the finding that the border officers acted in good faith in carrying out the searches and uncovered real evidence of serious offences.  Furthermore, society’s confidence in the justice system was best maintained through the admission of the evidence obtained through the unconstitutional searches. 

The CBSA, in a statement to CBC News, reported that it is currently reviewing the appeal court decision and assessing the next steps.  According to the CBSA:

The CBSA’s policy is to examine a digital device only if there are indicators that evidence of a contravention will be found.  It is important to note that examinations of digital devices are not conducted as a matter of course. …

This is a pretty big change in the law for the 98 million people who come through our Canadian border every year.

We will continue to follow any developments in the law with respect to the limits imposed on officers to search electronic devices at border crossings in Canada and will report them in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1047.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting their client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Toronto Police Plan to Purchase Full-Body Scanners by 2020

Written on Behalf of Affleck & Barrison LLP

Toronto Police have requested at least one and up to ten full-body scanners to replace strip searches.  According to the public tender documents, Toronto Police Service “is committed to increasing the level of dignity and respect provided during our search process”.

A six-month pilot project using a full-body scanner to scan a subject’s body to reveal concealed weapons or drugs ended last April at one of the busiest divisions of the Toronto Police Service.  This pilot project allowed for the training of officers, outlining procedures and consulting with officers and members of the community. 

The scanners cost at least $250,000 per unit, require approximately $20,000 in maintenance, and there are additional costs associated with training and possible facility renovations as well.

REPORT REGARDING INVASIVE STRIP SEARCHES

A report published earlier this year prepared by the Office of the Independent Police Review Director found that police in Ontario conduct too many unwarranted strip searches. 

The report also determined that police procedures for conducting strip searches were inconsistent across Ontario.  Toronto police officers were found to use strip searches more often than other forces in Ontario.  The report disclosed that strip searches were conducted by Toronto police at a rate of 40 times higher than in similar jurisdictions, such as Ottawa or Hamilton.  Toronto police conduct strip searches in just under 40% of arrests compared to other large police forces (who use strip searches under 1% of the time).

The report indicates that some individuals that are subjected to strip searches may suffer psychological harm. 

Michael Bryant, executive director of the Canadian Civil Liberties Association, stated:

The Toronto Police Service continue having this obsession with searching where the sun don’t shine – without legal authority. 

Mr. Bryant believes that the full-body scanner technology is invasive “instead of being told to disrobe, you’re just being disrobed electronically.”

THE PILOT PROJECT

A recent report filed prior to a Toronto Police board meeting confirms that the full-body scanners that were tested at a downtown police division were a success for both the police and individuals being scanned. 

During the project, 594 strip searches were approved with 311 of the individuals opting to have their search conducted by a full-body scan.  According to the report, 296 of the 311 individuals had been previously strip searched and 95% of them preferred the full-body scan. 

According to the report, 80% of Toronto police officers had a positive judgment of the full-body scanner.

The scanners being tested were similar to the technology used at airports and correctional facilities.  The body scan can find items on or inside a person.  They are able to detect metal, plastic and other items both outside of or hidden inside of the body.  During the project, the body scanners detected a knife, crack pipe, safety pins and heroin wrapped in toilet paper inside someone’s buttocks.

Toronto Police spokesperson Meaghan Gray stated:

The Toronto Police Service believes there is technology available that allows us to modernize our current search processes, increase public trust and accountability, and reduce the intrusiveness of such searches.  These are reasons alone to consider such a project. …  Each circumstance is evaluated on a case-by-case basis and officers must make a determination, based on reasonable grounds, to conduct any level of search.  If a Level 3 search (strip search) is determined to be appropriate, the Full Body Scanner will be used.

During the project, those individuals that were deemed to require a full-body scan could refuse, but were then subjected to a physical strip search.

Due to radiation, pregnant women were excluded from being scanned.  Youth were also excluded from being scanned as a “faint outline of genitalia can be seen” in the saved images. 

Officers conducting and viewing the scans are the same gender as the individuals being scanned.  Those that identify as transgender could either choose a full-body scan or a strip search and could request that the scan or search be conducted by a male, female or both officers.

During the pilot project, the data from the full-body scan was stored for 90 days if nothing was found during the scan.  However, if an item was located during the scan and criminal charges were made, the images would be retained as evidence for court.

The project will continue at Toronto’s 14 division for another three years as it has received funding from the Ministry of the Solicitor General’s Community Safety and Policing Grant. 

Toronto Police have no immediate plans to implement the scanners in other police divisions, but it is recommended that the technology be installed “at each central lock-up facility within the service”.

We will continue to report on any developments regarding full-body scanners in Ontario in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Strip Searches in Ontario are Occurring Too Often

Written on Behalf of Affleck & Barrison LLP

A new report released by the Office of the Independent Police Review Director (an independent civilian oversight agency responsible for overseeing all complaints regarding the police in Ontario) concludes that police officers in Ontario are conducting unnecessary, and sometimes unlawful, strip searches which interfere with privacy rights and negatively impact criminal court cases.

Gerry McNeilly, the Independent Police Review Director since June 2008, authored the report entitled “Breaking The Golden Rule:  A Review of Police Strip Searches in Ontario” (the “report”).

WHAT IS A STRIP SEARCH?

In 2001, the Supreme Court of Canada, in the case of R. v. Golden (“Golden”), defined the elements of a strip search and explained how strip searches are to be lawfully conducted.  A strip search is defined as the removal or rearrangement of some or all of someone’s clothing to allow for an officer to visually inspect their genitals, buttocks, breasts or undergarments.   

The majority of the Supreme Court of Canada emphasized the importance of preventing unjustified strip searches and recognized that these searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy”.

The Court went on to explain that strip searches are only constitutionally valid when they are “conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest.  In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest”.

However, despite this decision, it has been found that courts in Ontario repeatedly find that strip searches conducted by police officers are unlawful or unreasonable, resulting in the exclusion of evidence or the stay of charges.

STRIP SEARCH FINDINGS BY THE NUMBERS

The report found that police in Ontario conduct approximately 22,000 strip searches a year, with the majority being conducted by Toronto Police Service. 

According to the report, in 2016 Toronto police conducted 17,654 strip searches (occurring in approximately 37.5% of all arrests that year).  Strip searches were found to have occurred in more than 40% of all arrests in Toronto in 2014 and 2015.  This was found to be 40 times higher than the rate of strip searches conducted by police services in Hamilton, Durham Region, Ottawa, Windsor and the Ontario Provincial Police during the same time period.

A spokesperson for the Toronto police, Meaghan Gray, has advised that the Toronto police are “addressing the challenges and sensitivities associated to strip searches for the last few years”.  Toronto police are reviewing procedures and training of their officers and have recently launched a full body scan pilot project, which is aimed at reducing strip searches.  Ms. Gray emphasized that when strip searches are conducted appropriately, “they can be a necessary safety requirement resulting in the seizure of weapons and drugs which pose a significant risk to the person and those around them.”

According to the report, since the ruling in the case of Golden, Toronto police were involved in 40 of the 89 criminal court decisions where a judge found that a police strip search had violated the defendant’s Charter rights.

RECOMMENDATIONS

The report provides a template for strip search procedures and a sample strip search form.  The report also offers 50 recommendations on how Ontario police services should conduct, document, and train their officers on strip searches.  These recommendations include, but are not limited to the following:

  • ensure that all police services comprehend the law regarding strip searches and the implications of violations;
  • enhance training for strip searches and incorporate strip searches into police services annual or biennial training;
  • clearly define what constitutes a strip search in keeping with the Supreme Court ruling in Golden;
  • strip searches should ordinarily be authorized in advance and be carried out by an officer of the same gender;
  • every Ontario police service should be made aware of judicial findings of Charter violations in strip search cases, and take measures to address the issues raised;
  • all Ontario police service must keep accurate statistics of the number of persons arrested or detained, the number of persons strip searched, and the justifications provided for conducted strip searches; and
  • statistics kept by Ontario police service should identify the race of the person subjected to a strip search in an effort to evaluate whether race plays a role in the decision to conduct strip searches.

We will continue to follow any developments in the news and in case law regarding strip searches in Ontario and will provide updates in this blog as they become available. 

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

U.S. Border Agents Can Demand Access to Your Cell Phone

Written on Behalf of Affleck & Barrison LLP

As schools go on holiday for March Break, many of those living in Ontario will begin their vacation by crossing the border into the United States. But be aware.  U.S. border agents can demand access to your cell phone and request your password to unlock your cell phone without probable cause.

In 2017, U.S. border agents inspected more than 30,000 phones and other devices. This was found to be an increase of nearly 60% from 2016.

The U.S. Customs and Border Protection released an updated directive governing border searches of electronic devices on January 5, 2018 stating:

…border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.

U.S. DIRECTIVE: BORDER SEARCH OF ELECTRONIC DEVICES

The recently issued directive in the U.S. entitled “Border Search of Electronic Devices” provides the government with wide legal authority to search travellers’ belongings without a warrant at the border, including personal electric devices.

Basic Search

During this “basic search”, the officer may review and analyze information on the device that would be ordinarily visible by scrolling through the phone manually, including contact lists, call logs, calendar entries, text messages, pictures, videos and audio files.

Advanced Search

Border agents are authorized to perform an “advanced search” by connecting a phone to a hard drive to copy its contents for analysis when the need arises. This type of search may arise in cases where a traveller is on a watch list, there is “reasonable suspicion” of law-breaking or national security concerns. This type of analysis requires the approval of a supervisor.

Password

According to the new directive, agents have been granted the authority to request a password to open your phone without probable cause. You are allowed to refuse this request, however, doing so could result in your device being detained for further examination, your travel may be delayed, you can be denied entry if you are not a U.S. citizen or it may become difficult for the traveller to enter the U.S. on future occasions.

The Cloud

Border agents are not authorized to download old files from the cloud. They are allowed to search the data that is apparent on the phone, but cannot access anything that may be stored remotely. Officers can ask that travellers put their devices in an offline mode (airplane mode) or disable their network connectivity.

Sensitive Information

Lawyers who are crossing the border may claim solicitor-client privilege over documents by identifying sensitive documents. The officer must then consult with customs’ legal counsel and the U.S. attorney’s office to determine which files should be isolated from the regular search.

Destruction of Records

Copies of information held by U.S. customs must be destroyed following a search and any electronic devices must be returned, unless a security threat has been discovered.

WHAT TO DO WITH YOUR ELECTRONIC DEVICES WHEN CROSSING INTO THE U.S.?

It is recommended that individuals crossing the border be patient and allow the U.S. border agents to do their job. Canadians should be prepared to turn their phones over to the U.S. border agents, if asked. Canadians may be denied entry to the U.S. if they do not comply with requests made by the border agents. If assistance is requested to access your personal device, it is recommended that you comply to avoid any challenging situations.

Canadians are advised to put their mobile phones on “airplane mode” to protect their privacy, as border agents cannot download remotely or from the cloud without giving a reason.

It is highly recommended that private material be deleted from your electronics or transferred to the cloud prior to crossing the border. You may want to consider having backups of sensitive or important information on your phone in the event that your phone is detained by the government.

If you have questions regarding your rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We take all steps necessary to protect your best interests. We maintain a 24-hour emergency service line and offer free confidential consultation to all perspective clients.