Friday, 6 February 2015


The censorship of commentary does not necessarily start with overt repression. A social and political milieu can convince people not to express unwelcome words or notions ab initio. State repression is unnecessary if people can be coerced to repress themselves.  

Speech intolerance is enveloping our culture.  The most egregious form of this non-legislated censorship is found on American university campuses where elaborate speech codes have become almost universal.  The new censorship, however, is not limited to universities.  Public personalities must carefully parse their speech to avoid saying or writing anything that offends an ever developing code of correctness.  Even a celebrity like Madonna was forced to apologize for alleged racism after re-posting fan art of famous people’s faces such as Martin Luther King, Nelson Mandela and Bob Marley tied up in rope in order to look like the cover of her forthcoming album Rebel Heart.

A staunch conservative like former University of Calgary political scientist Mr. Flanagan was spectacularly exposed to the new censorship.  He learnt that is not permissible to say anything that downplays or questions any aspect of the protection of children.  Mr. Flanagan had in a previous university talk endeavored to distinguish between crimes that involve the abuse of actual children and those that involve "just pictures." In response to a question about people who are jailed just for viewing child pornography on the internet, he said "I certainly have no sympathy for child molesters," but then added, "It is a real issue of personal liberty to what extent we put people in jail for doing something in which they do not harm another person."

Now there is an obvious response to this statement; namely, that pictures of child pornography usually require a child being subjected to pornographic acts.  Mr. Flanagan’s comments, however, were not met with a reasoned response.  He had made the mistake of uttering a a verboten opinion.  By the end of the day, his employer of 45 years, the University of Calgary, had disassociated itself from him and the CBC had fired him as a commentator. Subsequently he would be disinvited from speaking engagements across North America. 

Mr. Flanagan’s friends on the Right were first and foremost in denouncing him.  Mr. Flanagan had worked hard to help build Danielle. Smith's Wildrose party into a credible political force in 2008.  But now, Danielle Smith was declaring  "There is no language strong enough to condemn Dr. Flanagan's comments," She said the party would no longer have anything to do with him.  The federal Conservatives followed suit.  The Prime Minister's communications director, Andrew McDougall said in a tweet "Tom Flanagan's comments on child pornography are repugnant, ignorant, and appalling”.

President Kathleen McCartney, the president of Smith College in Northampton, Massachusetts, learnt how remarkably easy it is to cross the line separating permissible and non-permissible speech.  She was forced to profusely apologize simply for sending an e-mail to students that had the subject line, “All Lives Matter.”  She quickly sent a second email expressing regret that she was unaware the phrase “All Lives Matter” was being used on social media as a counterargument to the “BlackLivesMatter” movement.  One student wrote  “It minimizes the anti-blackness of this the current situation; yes, all lives matter, but not all lives are being targeted for police brutality,”

Kathleen McCartney had previously “crossed the line” because there is a long list of words you can't say at Smith College - or apparently reproduce in the student paper.  She had said “We’re just wild and crazy, aren’t we.  The comment was re-written in a transcript in the student newspaper to read “[Smith President]: We're just wild and [ableist slur], aren't we?”

Smith alumna Wendy Kaminer, a feminist lawyer and civil-liberties advocate, spoke on a panel discussion on free speech and hate speech at the College in September, 2013 and asked the audience what word came to mind when she said "the n-word." When they said it out loud, she repeated it and said "nothing horrible happened."  Kaminer was accused in the Huffington Post of committing "an explicit act of racial violence," President McCartney - who moderated the panel - had obviously learnt her lesson - she even apologized for those who felt "unsafe" listening to Kaminer.

Trigger warnings are customary in some feminist and other spaces. They are designed to prevent people who have an extremely strong and damaging emotional response (for example, post-traumatic flashbacks or urges to harm themselves) to certain subjects from encountering them unaware. Having these responses is called "being triggered".

A blog with the title “Kyriarchy & Privilege 101” gives a list of triggering words ot types of words which includes swearing, talk of drug use (legal, illegal or psychiatric), descriptions/pictures of medical procedures (even if they don't contain blood or gore), any time slurs are used (this includes words like "stupid" or "dumb"), death or dying, spiders, insects, snakes, vomit, pregnancy/childbirth, blood, serious injury and best of all “slimy things”.  Perhaps the blog was being satirical - it is getting increasingly hard to distinguish between when some of these people are being satirical or “correct” to an absurd degree.  Perhaps satirical, perhaps extremist - it does give a flavour of the trigger word mentality.

The trigger warning idiocy is inevitably leading to even broader speech code rules at American universities.  Oberlin College, for example, recommends that its faculty "remove triggering material when it does not contribute directly to the course learning goals". When material is simply too important to take out entirely, the college recommends trigger warnings. Things Falling Apart is a novel about the great harms of colonialism, At Oberlin College “Things Fall Apart” now carries the warning that it “may trigger readers who have experienced racism, colonialism, and religious persecution, violence, suicide, and more” even though “it is a great and important book”.

Trigger warnings have inevitably become a way to short-circuit uncomfortable, unpopular or offensive arguments.  It is a new way to try to control speech.

The Oxford University Press, which bills itself as the largest university press in the world, provided another startling example of declaring certain words verboten.  It has told its authors not to mention pigs or sausages, or anything else which could be perceived as pork in their books in order to avoid offending Muslims and Jews. 

A few years back in an effort to eliminate potential "unpleasant emotions" among students, the New York Department of Education placed a ban on mentioning 50 or so common words including “birthdays, dinosaurs,slavery,Halloween, evolution and dancing" in city-issued tests.  After considerable ridicule New York’s educators (?) rescinded the ban.

So we can see two different developments.  Firstly, specific topics have become off limits.  At the same time more and more words are being removed from permissible communication.  This adds up to a chilling effect on freedom of speech generally.  In order to avoid running afoul of these inhibitors” politicians or media commentators will studiously avoid meaningful debate.  It is all part and parcel of a frightened, cowed society.

Tuesday, 16 December 2014


The Scottish National Party (SNP) are leaders in establishing the contemporary Nanny State.  Their triumphant piece of legislation is the Children and Young People (Scotland) Bill, under which every child from birth will be given a "named person", charged with keeping an eye on that child's interests until he or she reaches adulthood (age of 18).  A specific government worker will be assigned to every child at birth. These “named persons” will be charged with safeguarding each child’s welfare and with representing the state to the family.  Lets repeat that - every child in Scotland, not just children who are subject to abuse or neglect, gets a state minder.

The Children and Young People Bill was introduced to Parliament on 17 April 2013, passed unanimously by the Scottish Parliament on 19 February 2013, and received Royal Assent on 27 March 2014, making the Bill an Act of the Scottish Parliament.  The legislation is intended to be fully implemented by 2016.  It is a World First - there has not been a scheme providing for universal state surveillance of youth since the Nazis made the Hitler Youth compulsory for all German children in 1939.  The guardians will be chosen from among existing teachers and healthcare professionals and will be people who may already exist in a child's life but they are being given extra powers which make them in effect an overseer of parents and parenting.

The scheme has been trialed in the Highlands since 2010.   A council spokeswoman says 7,927 children have been given a “child’s plan” by a head teacher or health visitor.  Before the trial began, there were just 64 children on the child protection at-risk register in the whole Highland council area, now every child is supervised AS IF at-risk.

Every Health Board in Scotland must appoint a “named person” to every child at birth - the named person will be a health worker until the child reaches the age of five.  After the age of 5 the responsibility will then pass to councils until the child reaches 18, with teachers expected to be asked to take on the role. 

A Health Board is responsible for keeping records, not only on every child but on their parents too, who will be assessed against the new National Risk Framework. This can be used by “any practitioner in any circumstances where agencies are exploring a child’s needs”. Section 23 of the bill, “Communication in relation to movement of children and young people” requires that if any family in Scotland moves home, their local health board/authority current “named person” must pass on all the information held on each adult and child to the “named person” in the area to which the child moves.  A head start perhaps on a dossier which will be built up over a person’s lifetime. 

The new legislation significantly reduces the threshold for state intervention in a child’s parenting. The previous test was that a child must be at “serious risk of harm”; now the test is merely the risk of not meeting state dictated ‘wellbeing’ outcomes. These well-being outcomes are set out in a “National Risk Framework to Support the Assessment of Children and Young People.   What comes through very clearly in this document is that parents must be compliant.  They had better not shown any resistance to the opinions and actions of the intervening professional.    What is required (if parents do not want to “lose” their children) is “An admission by a parent of the problem and a willingness to co-operate with a treatment and intervention programme ...”  A resistance related risk Indicator for a parent includes merely having “a different perception of the problems/risks.”  In Nazi Germany children could be taken away from their parents if they did not provide a "politically reliable" home; in modern Scotland a child will be taken away if the parent fails to provide the kind of idealized, middle-class parenting that young social workers were taught in university. 

PART 5 of Scotland’s totalitarian legislation is headed CHILD’S PLAN.  Yes the State has a PLAN for each child that a Named Person thinks has a well-being need.  The Named Person will rarely be called out for making a wrong assessment since “A child has a wellbeing need if the child’s wellbeing is being, or is at risk of being, adversely affected by any matter.”  When Big Mother has identified a well-being need the child is made the subject of a “targeted intervention”.  At that point the state will decide whether the targeted boy or girl requires a CHILD’S PLAN.   The responsible authority is required only as “reasonably practicable to ascertain and have regard to the views of the child, and the child’s parents.”   Scotland’s very own Balder von Shirach, Children's Minister Aileen Campbell, very magnanimously declared "we recognise that parents ALSO have a role" in raising their children.  A subsidiary one, of course.

The scheme fundamentally replaces parents with state officials.  For example under new guidance issued to Scotland’s schools teachers whose under age pupils admit having sex are instructed to inform the SNP’s planned network of “state guardians” instead of parents. The Scottish Government document advises teachers they should contact the youngster’s “named person” if a pupil tells them about sexual behaviour that raises a “child protection concern”. Any other information that raises the possibility the pupil’s welfare is at risk must also be passed to the named person, according to the advice.  It makes no mention of telling mothers or fathers.

Perhaps the order of the initials for Scotland’s ruling party got mixed up.  Rather than SNP it should be NSP as in National Socialist Party or Nazi.

Saturday, 29 November 2014


What is big data?  Wikipedia defines big data as an all-encompassing term for any collection of data sets so large and complex that it becomes difficult to process them using traditional data processing applications.   Big data is the machine-based collection and analysis of astronomical quantities of information.  Vast quantities of data are analyzed to uncover hidden patterns, unknown correlations, market trends, customer preferences and other useful business information.  Algorithms are used to search for statistical correlations between one kind of behavior and another.  The data is typically derived from the internet and includes web server logs and Internet clickstream data, social media content and social network activity reports, text from customer emails and survey responses, mobile-phone call detail records and machine data.

Essentially, big data is all about following and then analyzing our digital footprints on the internet and elsewhere.  Every aspect of our life including location records via mobile phones, purchases via credit cards and interests via web-surfing behavior has been recorded and potentially shared by some entity somewhere. All of this data is then analyzed to provide fundamental insights into both our personal and collective behavior.   The unpleasant reality is that these insights can be surprisingly revealing.

Just how powerfully intrusive is big data.  A recent study published in the journal Science found that just four bits of information mined from a shopper's credit card could be used to uniquely identify ninety per cent of individuals.  The credit card information was made up of ordinary, every day expenditures such as where the individual bought coffee or purchased a new sweater or pair of shoes.

Credit cards use was just as reliable at identifying someone as mobile phone records.  An individual could be re-identified with "just a few more additional data points” even if some of the specifics were removed from credit card data, such as the general area where a purchase was made instead of the specific shop or if the time range was expanded to one day to 15.  Interestingly women were more identifiable from metadata than men.  Similarly people with higher incomes were also easier to identify.

Data brokers collect consumer information and then sell it to other companies. They are not hindered by "do not track" option which are available on many browsers, since it is not legally binding.  Giant data-collection firms sort details of online and offline purchases to help categorize people as runners or hikers, spenders or savers, conservatives or liberals, main streamers or counter-culturalists and so on.

A bank will use the data to assess a mortgage applicants credit worthiness.  Big data’s supposed predictive qualities go far beyond the traditional elements which determine whether a person has good credit i.e. the person has paid all of his or her loans and debts in a timely fashion.  For example, a person’s contacts on Facebook or Twitter or LinkedIn can be used to assess his or her "character and capacity" when it comes to loans.  This might be done by “analyzing” friends. Are they rich? Are they poor.  If a number of associations with losers are detected by algorithms, a person can be labeled a poor credit risk and disqualified from a loan.  The individual may very well never find out about the true cause of the loan rejection - the “”lender will likely avoid being up front about the reason.  

It has been suggested that even the repayment history of the other customers of stores where a person shops can result in a negative "behavioral scoring".  Although this method of credit rating (guilt-by-association) is something that is totally beyond an individual’s control, lenders will use it because it provides a reliable statistical inference.   The consequences, however, for the individual will likely be horrendous.

Insurers are particularly excited by big data.  It is costly to use blood, urine and other physical tests to assess a person’s health.   Big data, however, may be able to reveal as much about a person as a lab analysis of bodily fluids.  The individual leaves an information trail that show such lifestyle factors as exercise habits and fast-food diets which can be used to estimate risk for illnesses such as high blood pressure and depression.  Similarly the individual might reveal concern about injuries and illnesses from websites that are visited.

The contemporary notion of privacy is based on two premises; namely, 1) individual choice in the sense that there is informed consent to disclosure and 2) on anonymization or that data is decoupled from an identified individual.  With big data, however, the information is used and reused in a manner separate from purpose for which it was originally provided.  Similarly even if the information is devoid of identifying data, the relationships between the individual pieces will identify the individual.

A person can avoid creating bad data by simply by cutting himself or herself off from the internet. We can’t help that suspect that “no data” will have the same negative consequence as having no credit cards and no mortgages.   

The negative impact of big data is not limited to a form of economic blackballing.  Edward Snowden revealed that the National Security Security Agency in the U.S. has full access to internet information and all the analytic tools of big data.  Combine this access to an individual’s digital footprint (which, of course, is mostly gratuitously created by the individual) with all the information that government already has on individuals through income tax and social program records, financial disclosure requirements, travel records and the like and you have the blueprint for surveillance at a level never previously approached even in highly totalitarian societies.  

Assurances are given that these super powers of surveillance will only be used to counter terrorism or the drug trade or other nefarious activities ... but once a “power” is there does it ever really remain benign for very long.  There will be an inevitable expansion in the ways that super surveillance is used to “regulate” the entire population.

Friday, 21 November 2014


We are moving step by step to a world where the national governments in the U.K., Australia, the U.S. and Canada will have a dossier on each of its citizens.  It will be quickly and readily accessible to a number of government officials, security agencies and police.  The information in the dossier will be extensive - it will include detailed financial information, information on tax and GST filings, information on travel history, information on property ownership and information on political tendencies.

This article looks at the development of the information web in Canada - there are similar legislative trends in the U.S., Australia and the U.K. The information web is not yet perfected but it is quickly getting bigger and better.  Most of the legislative framework is in place.  Components of the dossier system in Canada include the following:

Border Crossing Information

On December 13, 2012 Canada signed a Treaty with the United States of America (U.S.) to enable systematic immigration information sharing between the two countries on border crossings.  The Treaty creates a legally binding instrument under international law to govern systematic information sharing.  Two separate implementing arrangements are currently contemplated under the Treaty. The first covers systematic biographic information sharing to be implemented in 2014, and the second will cover systematic biometric information sharing to be implemented in 2015.

Canada and the United States under the so-called bilateral “Entry/Exit Initiative,” are already collecting and exchanging the entry data at all land border ports of entry of third-country nationals, permanent residents, visitors, foreign students and those who are here on work permits.  The personal information collected includes a traveler’s name, date of birth, nationality, sex, document type, document number, work location code/port of entry code, date and time of entry, and the country where the travel document was issued. The scope of the program is being extended to all people traveling through land border crossings, including Canadian and American citizens.  Canadian and American authorities will automatically be notified of every border crossing by a citizen, immigrant or visitor almost instantaneously under the vastly expanded border control system.  The system will track the movements of Canadian and American citizens with "near real-time" exchange of information between government agencies.   Ultimately, in the program’s final phase, Canada will develop a system to establish exit records similar to those in the United States, where airlines are required to submit passenger info on outbound international flights.

The program will pass the tracking information on to other federal departments in Canada and the United States.  The Canada Border Services Agency has confirmed the new practice and said data would be passed on only in accordance with stringent rules. CBSA spokesperson Esme Bailey would not say if this new program would be used as an enforcement tool for purposes other than border security, however, she said “access to the information will be limited to designated users with an operational requirement for the information on a “need-to-know” basis. But the revelation is raising questions about privacy, how the information will be used and whether the federal government plans to use this data to crack down on immigration, citizenship, health and tax cheats. 

The United States will be allowed to share information about Canadians with other countries under a sweeping border deal.  The U.S. will not be required to explicitly tell Canada about its plan to pass along the personal details.

Immigration policy analyst Richard Kurland said “With this system, it is a blank cheque to the Big Brother. Where you go and when you go becomes government property.”  Kurland noted that the data collected can be used as an enforcement tool of immigrant residency and citizenship laws for newcomers, as well as in the application of health care and taxation rules for Canadian citizens by counting their days spent in Canada.


The Strengthening Canadian Citizenship Act, known as Bill C-24, which was enacted in July, 2014, contains provisions which gives Ottawa broad new powers to disclose information. It is not yet known to whom such information will be disclosed as he Act gives the government power to pass a set of regulations which will set out the details to whom and under what circumstances such information will be disclosed.   

In fact regulations may be passed under the Act to  provide for the collection, retention, use, disclosure and disposal of information for the purposes of the Act.  Regulations may also provide for the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs.   International Affairs includes the implementation of an agreement or arrangement entered into under section 5 of the Department of Citizenship and Immigration Act or in other words an agreement for information sharing with a foreign government.  Additionally regulations may be passed to provide for the disclosure of information to verify the citizenship status or identity of any person for the purposes of administering any federal or provincial law or law of another country.  Finally regulations may provide for the disclosure of information for the purposes of cooperation within the Government of Canada and between the Government of Canada and the government of a province.  To summarize, information may be shared with other federal departments, with provincial departments and with foreign governments.  There is no guarantee that this information will be narrowly restricted to relevant immigration issues.  Given that other provisions of the Act require prospective citizens to make broad disclosure of their personal affairs, the government dossiers on New Canadians will have some extra heft. 

Income Tax Enforcement

Section 241 of the Canadian Income Tax Act seemingly requires the CRA to keep taxpayer information confidential but this traditional privacy notion has been largely amended out of existence.  There is a long list of exceptions to Section 241.  Information can be disclosed to Canadian government officials when it can reasonably be regarded as necessary for the purposes of the administration or enforcement of the Income Tax Act, the Canada Pension Plan, or the Employment Insurance Act. It can be disclosed to provincial governments for purposes of the administration of the workers' compensation program, for the use in the management or administration of a program relating to earning supplementation or income support or for use in the management or administration by that government of a program relating to payments under subsection 164(1.8) of the Act. 

The Minister may, where the taxpayer is, or is about to become, liable to make any payment to the federal government or to a province, apply the amount of the refund or repayment to that other liability and notify the taxpayer of that action.  Refunds can also be redirected for a child maintenance payment made pursuant to provincial law. 

There are a host of other exceptions.  Information can be passed to a government official for the purposes of formulation or evaluation of fiscal policy; to a police officer or a Canada Customs officer for the purpose of investigating whether an offence has been committed under the Criminal Code and to “appropriate persons” if the information relates to the imminent danger of death or physical injury to any individual.  The Income Tax Act also provides that taxpayer information may be disclosed to the Canadian Security Intelligence Service, the Royal Canadian Mounted Police or the Financial Transactions and Reports Analysis Centre of Canada where the information may be used by these organizations to assist with ongoing investigations related to national security.  This disclosure provision was introduced as part of the recent package of “terrorism-related” legislation.

Section 79 of the Family Orders and Agreements Enforcement Assistance Act provides access to so-called  information banks maintained by various federal government departments, and where there is an information agreement, provincial departments notwithstanding any provision in any other Act of Parliament that prohibits or restricts the release of information.

The Canada Revenue Agency (CRA) can enter into written collaborative arrangements, such as Information Sharing Agreements (Agreements), with federal, provincial and territorial departments.  For example the Agreement with the British Columbia Vital Statistics Agency (BCVSA) has been in effect since July 28, 2009.  The CRA can give information to other countries with which Canada has a tax treaty that authorizes the exchange of information.  These include a Tax Information Exchange Agreement ("TIEA“) or a listed international agreement, which includes the Organization for Economic Co-operation and Development ("OECD") Agreement.

Foreign Account Tax Compliance Act

The Foreign Account Tax Compliance Act requires Canadian financial institutions to supply comprehensive financial information to the Canada Revenue Agency which then turns it over to the Internal Revenue Service in the U.S.  The agreement provides that if an account holder is a “U.S. person” (such as U.S. residents and/or U.S. citizens (including U.S. citizens who are residents or citizens of Canada), the financial institution will be required to collect and report information on the account to the CRA in respect of that account holder. The information that will be collected and shared with the IRS will include information about the account holder including his or her name, address, the individual's U.S. taxpayer identification number and certain financial information pertaining to the account.  This information will be transmitted by the CRA to the IRS under the existing provisions of the Canada-U.S. tax treaty relating to exchange of information.

The Operations Centre Information Portal

The Canadian Safety and Security Program (CSSP), led by Defence Research and Development Canada's Centre for Security Science and the Government Operations Centre (GOC), have developed the OCIP which is a system that enhances the GOCs ability to share data immediately across federal operations centres.  It gathers information on all types of events affecting Canadians at home and abroad ranging from a local fire department responding to a forest fire, to special security arrangements for visits from international dignitaries.  The portal was created with the express purpose of organizing incoming information and readily sharing what's relevant with many operations centres at the click of a mouse.   It gives users the ability to share documents quickly, track ongoing events, and issue notices about incidents of interest. It also has a number of collaborative custom-built features such as a chat tool, a Request for Information tracker, and an incident management log to categorize incoming alerts.  Recently, an `automatic messaging' feature was added which allows alerts to be sent to offline operations centres users when a request for information is posted.

Initially only a few key federal departments had access to this so-called tool but it now employed by 21 federal departments and agencies, with more likely to join in 2015.  Federal agencies using the portal are currently looking at how it could be used in their regional offices.  The use of common data standards in OCIP will allow for continued growth in the future.  

The Internet

One of the documents retrieved by U.S. whistle blower Edward Snowden showed that Canada's electronic spy agency uses information from the free internet service at a major Canadian airport to track the wireless devices of thousands of ordinary airline passengers for days after they left the terminal.  This is probably illegal since the spy agency is supposed to be collecting primarily foreign intelligence by intercepting overseas phone and internet traffic, and is prohibited by law from targeting Canadians or anyone in Canada without a judicial warrant.  Security experts who have been apprised of the document point out the airline passengers in a Canadian airport were clearly in Canada.  CSEC justified its actions by claimiing that it is "mandated to collect foreign signals intelligence to protect Canada and Canadians and that in order to fulfill that foreign intelligence role for the country, it is legally authorized to collect and analyze metadata.

The kind of metadata being collected is more than just "phone book" information.  It reveals a trove of information including, for example, the location and telephone numbers of all calls a person makes and receives.  Knowledge of subscriber information, such as phone numbers and IP addresses, can provide a starting point to compile a picture of an individual's online activities, including online services for which an individual has registered, personal interests based on websites visited; and organizational affiliations.  It can also provide a sense of where the individual has been physically (e.g., mapping IP addresses to hotel locations, as in the Petraeus case). 

This information can be sensitive in nature in that it can be used to determine a person's leanings, with whom they associate, and where they travel, among other things.  What's more, each of these pieces of information can be used to uncover further information about an individual. 

Bill C-13

Frank Addario, a Toronto-based lawyer, notes that digital data surveillance gives the state virtually unfettered access to eavesdrop or read every single personal communication with no mechanism for accountability.  He suggests that the government has done nothing to rein in police techniques to obtain digital information from third party carriers like cell phone and social media providers. “By not recognizing the pressure that state snoops put on these regulated carriers, the government has delivered us into a post-privacy world.”

The Supreme Court of Canada in the Spencer case tried to put the brakes on the police coercing third party carriers to hand over digital information. Addario questions whether the courts are an adequate “substitute for legislative control of surveillance techniques to restrain overenthusiastic intelligence collectors”.  It is unlikely that such legislative control is forthcoming. Rather than trying to restrain overenthusiastic intelligence collection the Harper government has made repeated attempts to legalize it.  Their latest effort is BILL C-13 which has now passed through the House of Commons and is on to the Senate.  Bill C-13, if passed, will give police easier access to the metadata that internet service providers and phone companies keep on every call and email by their customers.  It will make it easier for police to get preservation or production orders by lowering the threshold from a "reasonable grounds to believe" a crime has happened or could happen to "reasonable grounds to suspect."  Most significantly, the bill will give immunity to any companies that turn over to police the information they hold.  Although these companies might not be compelled to hand over the information, past experience shows that they usually accede to police pressure especially if it has no negative legal consequences.

Privacy Laws

Provincial governments are increasingly exempting themselves from the operation of privacy laws. In 2011 the B.C. government amended the Freedom of Information and Privacy Act to increase the ability of government ministries to share citizens' information amongst themselves and centralize that data electronically.  The legislation, among other changes, lets ministries share information when government programs involve more than one department, permits use of so-called data linking to combine existing databases, such as for research and allows for the creation of a super ID combining driver's licences and health-care cards.


Government, provincial and federal, are erecting a vast information structure exemplified by the Operations Centre information Portal.  This is BIG DATA IN FULL FLIGHT. There are still technological weaknesses in the structure but it highly likely that there will soon be a time when certain government officials, spy agencies and the police will be able to bring forth a detailed dossier on each and every Canadian citizen by inputting a name, a social security number and an address.  This dossier will not only give a detailed description of a person’s life history, it will have point in time accuracy.  Our governments assure us that they have instituted internal reviews and controls to prevent misuse of this information but history tells us that internal bureaucratic run controls are useless.  Governments also tell us that the information web will only be used for good purposes - catching terrorists, drug dealers, child pornographers, cyber bullies, criminals generally.  We should note, however, that federal and provincial governments have been busy creating new crimes, new offenses.  All sorts of social misbehavior are being criminalized or semi-criminalized.  Punishments for provincial offences are constantly being made more severe. In a society where almost everyone is a criminal or potential criminal almost everyone is a government surveillance target. 

Friday, 24 October 2014


An Ontario Department of Labour pamphlet asks “What is Workplace Harassment?”  It begins to answer this question by referencing the definition of workplace harassment in Ontario’s Occupational Health and Safety Act.  Workplace harassment means "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome."  According to the Ontario Department of Labour  “Some of the types of harassment that workers could experience in the workplace include sexual harassment, teasing, intimidating or offensive jokes or innuendos, display or circulation of offensive pictures or materials, unwelcome, offensive, or intimidating phone calls, or bullying. Leering, unwelcome gifts or attention, offensive gestures, or spreading rumours could also be considered harassment.  It says “This definition of workplace harassment is broad enough to include harassment prohibited under the Ontario Human Rights Code, as well as "psychological harassment" or "personal harassment."

This is a typically very broad definition of harassment now found in like statutes.  In New Brunswick personal harassment means “any objectionable or offensive behaviour that is known or ought reasonably to be known to be unwelcome. It includes objectionable conduct, comment or display made on either a one-time or continuous basis that demeans, belittles, or causes personal humiliation or embarrassment”.  The test in Ontario and New Brunswick is essentially a subjective test since the determining factor is whether the conduct is “unwelcome” to the so-called victim.  This contrasts to the U.S. where at least federally workplace harassment must be severe or pervasive enough to create a "hostile or abusive work environment" for the plaintiff and for a reasonable person. 

How far reaching is workplace harassment in Ontario?  Consider this example.  A fellow worker, who is an avowed atheist, is reading The God Delusion by Richard Dawkins.  She brings the book with her to lunch and is “confronted” by the victim who makes it very clear that because of his own fundamentalist Christian beliefs he finds the “display” of this book as unwelcome and offensive.  But our harrasser doesn’t care.  The victim can read his bible at lunch if he so chooses and she will read Dawkins so she continues to bring the book to the staff lunch room.  Under the definition she is engaging in harassment because HE finds the display of the book offensive and SHE KNOWS that it is unwelcome.  In New Brunswick a single so-called objectionable comment or display (like the cover of the God Delusion) if it is unwelcome and is embarrassing (to a complainant), constitutes workplace harassment. 

Even an unwelcome gift can constitute harassment.  Jill brings back female figurines from her Cuban vacation and gives one to each of her five co-workers.  One of the co-workers is offended by the voluptuousness of the figurine.  Once again we have workplace harassment.

Teasing is included in workplace harassment.  So are any jokes that the sensitive individual might find offensive.  If a person wants to avoid problems at his workplace, he or she should be suitably dour - keeping comments to a minimum avoiding saying anything beyond vague pleasantries.

Leering is workplace harassment.  What is leering?  Does it mean looking at someone for too long a period of time or is it the nature of the look?   A leer is defined in the dictionary as looking “at someone in an evil or unpleasantly sexual way”.  How do we know that there is an evil or unpleasantly sexual thought behind a look.  Given the overall tenure of workplace harassment law in Ontario it is the victims’s perception which is determinative - if the victim “feels” that there is something sexual or evil in a the perpetrator’s look, then that must be the case.  So how do you avoid being accused by the sensitive individual of leering?  Keep you head down.  Avoid eye contact.

Of a similar vein is the notion of offensive gestures.  Is rolling your eyes an offensive gesture?  It may well be very offensive to an easily threatened individual.  It is readily apparent that the all encompassing and very subjective definition of harassment is creating a new tyrant - the sensitive individual who is quick to see offense in the conduct of her fellow workers and bosses.

Workplace harassment is not limited to one worker “harassing” another worker or a boss “harassing” a worker.   We are told in the Ontario Department of labour pamphlet that  “Workplace harassment, like workplace violence, can arise from a variety of sources, such as other workers, supervisors, customers, clients, patients, students, intimate partners, or family members.”

It is similar in British Columbia where the definition of bullying and harassment in British Columbia includes any inappropriate conduct or comment by a ‘person’ towards a worker that the ‘person’ knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.  A ‘person’ includes any individual, whether or not they are a workplace party. This means that a ‘person’ could be a workplace party such as an employer, supervisor, or co-worker, or a non workplace party such as a member of the public, a client, or anyone with whom a worker has contact at the workplace. 

In other words workplace harassment extends to a customer in a coffee shop who makes an “inappropriate comment” to a waiter; i.e. “You dumbass, you served me the wrong drink” said in a voice loud enough for other diners to hear thus causing the waiter to (quite reasonably) be humiliated. The struggling to survive restaurant owner will be liable.

The penalties under the Ontario Act are not minimal.  Every person who contravenes or fails to comply with “a provision of this Act” is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both.  If the culprit is Ma & Pa Corner Grocery Store Ltd. (and owners are made liable for the sins of employees) the maximum fine that may be imposed upon the corporation is $500,000.00. Bankrupted because the delivery boy told a bad joke. 

It is not surprising that waiting rooms in hospitals, government offices and other institutions are now littered with intimidating signs warning customers, patients and users of public services - in effect - not to complain too much.

Employers are made responsible for preventing so-called workplace harassment.   Because they can be blamed and usually will be blamed for worker on worker harassment (and the resultant liability), they must when considering potentially harassing conduct be as conservative as possible.  They must tell their workers not to say or do anything that can be remotely interpreted as unwelcome to anyone near or at work.  In particular they must forbid any mention of anything relating to sex.  They must  by necessity create a nervous, rule bound, joyless, sterile, unfree workplace.  Examples from the U.S. (even with its more objective criteria) illustrate this.  At the University of Nebraska at Lincoln, a harassment complaint was filed against a graduate student who had on his desk a 5" x 7" photograph of his wife in a bikini.  The employer ordered that the photo be removed.    At Penn State a professor complained that a print of Goya's Naked Maja hanging in a classroom constituted sexual harassment and accordingly the school administration removed the painting. 

Well intentioned governments are creating social environments where people are in constant fear of offending a colleague, where workers and bosses are constantly walking on eggshells, where the rights of overly sensitive individuals override the rights of everyone else, where casual, relaxed humour is outlawed ...   This is the new unfreedom of the 21st century. 

Monday, 22 September 2014


Future historians may very well label this the Era of Fear. Our fears are multi-dimensional. We are afraid of terrorists. We are afraid of crazies shooting up people in malls. We are especially afraid of young people.

Fear is a driver for people in authority. Government offices are in a permanent state of lock down with multiple guard points keeping out the dangerous public. Schools are increasingly taking on the appearance of a prison.

Into this comes "risk assessment". School administrators - an especially paranoic set of bureaucrats - have taken up risk assessment with a vengeance. Consider the Threat Assessment Protocol of the Langley School District, a suburb of Vancouver, British Columbia, Canada. Part of it reads "3. Worrisome Behaviours. Worrisome behaviours are those that cause concern for members of the school system and which may indicate that a student is moving toward a greater risk of violent behaviour. This would include instances where a student may be engaging in behaviours such as drawing pictures, writing stories in class, or making vague statements that do not, of themselves, constitute "uttering threats" as defined by law but are causing concern for some members of the school community because of their violent content. The majority of threat-related behaviour, from Kindergarten to Grade 12, falls into this category. All worrisome behaviours will be communicated to the school principal."

You know what results from this kind of protocol. A five year old draws a picture of a gun and all hell breaks loose. In fact that has happened a number of times in paranoic school districts in North America. The parents of an eight year old boy at Scottsdale Country Day School were called to a meeting last week. The principal told them that their child was a danger to other children and threatened to expel him over three drawings which depict a soldier, a ninja and a Star Wars character. Each was carrying a weapon and all were ideas the boy had for his Halloween costume. The principal apparently was "acting" in accordance with Scottsdale County Day School policy which makes the drawings of weapons grounds for expulsion. Elsewhere a drawing of a gun by a four-year-old resulted in the arrest of her father when he came to pick her up from school. The father was detained by police and strip-searched and his children were questioned by social services. The gun depicted was a plastic toy that belonged to his kids. There have been numerous other such incidents.

If not expelled, thousands of students will be identified as "worrisome" and will be made subject to a formal assessment. The formal assessment will become part of the student’s file. It will follow them through their entire time in the education system and into the career world. 

Formal assessments are a form of policing. In fact, in many cases fear stricken principals will pass the formal assessments onto the police. The police in turn are increasingly maintaining (and passing on) material above and beyond criminal convictions.

The next big movement in risk assessment will be the utilization of Big Data. Governments in the U.K., the U.S. and Canada have pretty much unlimited access to people’s internet usage. Big Data identifies persons who are constantly doing internet searches on topics of violence or other controversial topics. It will be a valuable tool for government to identify political outliers left and right such as environmentalists, anarchists, survivalists and socialists. In particular it will identify people who are seen as having "disruptive" attitudes.

Disruptive behaviour is another categorization favoured by the Grand Nannies that now seem so omnipresent in the administrations of North American universities. Texas Woman's University provides a procedure for the referral, evaluation, and appropriate disposition of students displaying so-called disruptive behaviour. There is the typically broad definition namely "Disruptive behaviours are overt actions, omissions to act, or verbal or written statements that would not be consistent with the actions or statements of a reasonable, prudent person under similar circumstances." The University further explains "Disruptive behaviour typically refers to directly observable behaviour. But, it may also include a student’s behaviour by electronic means (e.g. e-mail, social networking sights, postings to electronic classrooms, etc.) as well." The Associate Vice President for Student Life must be notified by faculty, staff, or students of any instance where a student demonstrates disruptive behaviour. The next step is to have the Orwellian named Behavioural Assessment Team (BAT) spring into action - the consequence to the student may be the university’s favorite big stick - expulsion.

The University of Minnesota Duluth claims in a direction to faculty and staff that "Disruptive, disrespectful, and even violent student behaviour has become a national trend at universities." That is surprising only if one does not consider what the University’s baby sitters describe as "disruptive behaviour". The directive states that "Students are responsible for conducting themselves in a manner that is respectful of the instructor and other students in the classroom, is civil in language, tone and behaviour, and is receptive to ideas and other points of view." In other words do not disagree too vigorously with your professor and other students. Avoid any sarcasm, hyperbole, irony, overt criticism, etc. If you don’t, your professor is instructed that "it is essential that you take appropriate and immediate steps to curtail this behaviour" So students beware - do not express any strong views and modify your comments so that they fit in with the consensus opinions of your fellow students and professor. As per the old Japanese saying "`the nail that sticks out gets hammered down". 


Tuesday, 16 September 2014


In an earlier article I described how citizen spies are increasingly being used by the state to report on the possible wrongdoings of their neighbors. There is another type of spy which is increasingly being used by authorities in the U.S., Canada the UK and Australia. These spies are usually professionals like medical doctors and nurses and they are compelled to report certain types of wrongdoing.

Historically a person in the Anglo jurisdictions did not commit an offence by not reporting a crime. The exception was misprision of felony which was an offence under the common law of England and was classified as a misdemeanour. It consisted of failing to report knowledge of a felony to the appropriate authorities. It has been abolished in England and Wales, in Northern Ireland, in the Republic of Ireland, and in New South Wales. 

The United States still has "misprision of felony" as a federal offence. It provides that "whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both". This offence, however, requires active concealment of a known felony rather than merely failing to report it.
Like many legal rights, the right not to report an offence has been eroded since the 1980's. Compulsory reporting is now part of the law in a hodgepodge of ways and in a hodgepodge of jurisdictions, state, provincial and national. Compulsory reporting like all these things started out with the most laudable of intentions. The first area of concern was bringing child abuse to the attention of social workers and police. As usual the U.S. was the source of the movement to expose child abuse. Legislation was passed in most of the American states requiring various persons to report child abuse.
Forty-eight American States have legislation designating professions whose members are mandated by law to report child maltreatment. Individuals designated as mandatory reporters typically have frequent contact with children. Compulsory reporting was initially limited to professionals who have frequent conduct with children such as social workers, teachers, principals, and other school personnel and physicians, nurses, and other health-care workers. The list of mandated ‘child abuse’ reporters, however, has gradually expanded. Seven States and the District of Columbia even include animal control or humane officers. Court-appointed special advocates are mandatory reporters in ten States; clergy are mandatory reporters in 27 States and Guam. Eighteen States have made it all really simple; any person who suspects child abuse or neglect is required to report regardless of profession. Upon conviction in Florida a mandated reporter who fails to report can face jail terms ranging from 30 days to 5 years, fines ranging from $300 to $10,000, or both jail terms and fines. 

New Hampshire’s law makes the following long list of people mandatory reporters: "any physician, surgeon, county medical examiner, psychiatrist, resident, intern, dentist, osteopath, optometrist, chiropractor, psychologist, therapist, registered nurse, hospital personnel (engaged in admission, examination, care and treatment of persons), Christian Science practitioner, teacher, school official, school nurse, school counselor, social worker, day care worker, any other child or foster care worker, law enforcement official, priest, minister, or rabbi". It then adds "or any other person having reason to suspect that a child has been abused or neglected".
The General Medical Council in the U,K, advise all doctors seeing adults to always be suspicious of child abuse and neglect even if they may never have met the children of those adults. Mr Dickson of the General Medical Council said: "It is important that doctors treating adults are child protection aware. Their responsibility extends to patients they may not have seen. Doctors need to be aware of the environment and individuals who may increase the risk of harm." All doctors have a responsibility to be aware of child protection issues and should report concerns even if they simply have a 'hunch or feel uneasy', says Sir Peter Rubin, chairman of the GMC.

Compulsory reporting is not, however, confined to child abuse. In North Carolina every citizen has a legal duty to report cases where there is suspected child abuse and/or neglect by a parent, guardian, custodian or caretaker; they are also required to report abuse, neglect or exploitation of a disabled or elder adult by their caretaker. Physicians and hospitals in North Carolina must report to law enforcement certain kinds of wounds, injuries or illnesses. School principals must report immediately to law enforcement when he or she has personal or actual knowledge that an act has occurred on school property involving certain offenses. Photo processors or computer technicians are also mandated to report, if within the scope of their employment, they come across images of a minor (or one who reasonably appears to be a minor) engaging in sexual activity.
Seniors are a rapidly expanding object of compulsory reporting. S. 7(1) of Alberta’s Protection for Persons in Care Act requires every person who has reasonable ground to believe there is or has been abuse involving an adult who receives care or support services from a hospital or lives in a care facility" to report abuse to a complaints officer, the police, or other authorized person, body or committee authorized to investigate abuse. In Manitoba the Protection for Persons in Care Act (s. 3(1)) requires every person with a reasonable belief that an adult resident, in-patient or person receiving respite care in a health facility is, or is likely to be, abused to promptly report the belief to Protection of Persons in Care Office at Manitoba Health. It is therefore mandatory for all health professionals to report abuse covered by this act.

Ontario’s Long-Term Care Homes Act applies to abuse and neglect of the residents of senior’s facilities. The Act (s. 24(1)) imposes a duty on the general population to report abuse and risk of abuse. Any person must report to the Director (who has been appointed by the Minister of Health) the following; improper or incompetent treatment or care resulting in harm or risk of harm, abuse of a resident by anyone, neglect by the licensee or staff that has resulted in harm or a risk of harm to the resident, unlawful conduct that has resulted in harm or a risk of harm to a resident and misuse or misappropriation of a resident's money. Abuse includes verbal abuse which in turn means "any form of verbal communication of a threatening or intimidating nature or any form of verbal communication of a belittling or degrading nature which diminishes a resident’s sense of well-being, dignity or self-worth".
Nova Scotia has taken it all one step further. It has made all of its citizens mandatory reporters of ALL adult abuse and neglect. Section 5(1) of Nova Scotia’s Adult Protection Act (s. 5(1)) requires every person to report abuse and neglect of vulnerable adults. The law states: "Every person who has information, whether or not it is confidential or privileged, indicating that an adult is in need of protection shall report that information to the Minister of Community Services. "Adult in need of protection" means an adult who, in the premises where he resides, (i) is a victim of physical abuse, sexual abuse, mental cruelty or a combination thereof, is incapable of protecting himself therefrom by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his protection therefrom, or (ii) is not receiving adequate care and attention, is incapable of caring adequately for himself by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his adequate care and attention" Individuals who fail to report the information are guilty of an offence and may be fined up to $1,000 or imprisoned for up to one year, or both (ss. 16(1) and 17). The wise, law abiding citizen wishing to avoid a one year jail sentence should be sending daily reports about his neighbors to the Minister of Community Services since they could be victims of mental cruelty (the citizen hears the neighbor’s wife delivering a nasty insult to him) or refuses or delays in making provisions for his protection therefrom (the husband does not report this mental cruelty to authorities) or refuses or delays to make adequate provision for his adequate care and attention (the neighbor is giving himself lung cancer by smoking or heading towards diabetes by over eating).

There is a also panoply of elder abuse legislation and mandatory reporting requirements in the U.S. Under Connecticut law elder abuse includes, but is not limited to, the willful infliction of physical pain, injury or mental anguish, or the willful deprivation by a caretaker of services which are necessary to maintain physical and mental health. Elder abuse also includes neglect, exploitation, and/or abandonment of an elderly (ages 60+) person. The list of mandated reporters is very similar to that for child abuse and neglect including licensed physicians and surgeons and licensed or unlicensed residents and interns, registered and licensed practical nurses, nursing home administrators, nurse’s aides, orderlies, and anyone else paid for providing care in a nursing home, patient advocates, medical examiners, dentists, osteopaths, optometrists, chiropractors, and podiatrists, psychologists and social workers, clergy, police officers, pharmacists and physical therapists. Maryland requires financial institutions to report suspected financial abuse of an elder adult.
Bullying is another new and expanding area of mandatory reporting. The Alberta Education Act was revised in 2012 to requires students to "refrain from, report and not tolerate bullying or bullying behaviour directed toward others in the school, whether or not it occurs within the school building, during the school day or by electronic means," In other words students are required to report all alleged bullying by other students whenever and where ever it occurs. Bullying as is usual is defined very broadly to include "demeaning behaviour by an individual where the behaviour is intended to cause harm, fear or distress to one or more other individuals in the school community, including psychological harm or harm to an individual’s reputation."

The Alberta law is particularly notable because it requires students to report cyberbullying if they witness it, with penalties including suspension and expulsion possible for those who do not. It has been pointed out that the Alberta legislation is asking kids to do more than the law requires of Canadian citizens when they witness a crime on the street. The observer (of crime) is not asked to step in and stop it; if anything, police discourage it and recommend that they be called instead. While there might be a civic duty to report crime, there is no legal threat if a person doesn’t do so (subject to being an accessory).  
There are numerous "compulsory reporting provisions in the U.S., the U.K. and Canada related to funding of organizations deemed to be "terrorist". A typical provision is a requirement under the Canadian Criminal Code for anyone in Canada and any Canadian outside Canada to disclose to the Royal Canadian Mounted Police and the Canadian Security Intelligence Service the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist or a terrorist group. In the U.K. a mandatory duty has been applied since 2002 on professionals who suspect that money or assets are the proceeds of any crime. The purpose was to combat the phenomenon of ‘money laundering’. Since 2000 a mandatory duty has applied to all citizens to report on the preparations and activities of terrorists. Mandatory reporting is required if a person merely believes or suspects that another person has committed an offence under any of sections 15 to 18, and bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment.

The Proceeds of Crime Act 2002 has increased the scope of mandatory reporting. It has introduced duties to pass on information about criminal proceeds with the result that professionals may have to report the criminal activities of their clients or third parties. Unlike existing duties to report, the obligations in the Proceeds of Crime Act apply to all criminal offences and therefore represent a significant change in the approach of English criminal law towards mandatory reporting.
Terrorism on the road is also a mandatory reporting requirement in the U.K. According to sections 70 and 172 of its Road Traffic Act 1988, a driver or a vehicle owner may commit an offence by not reporting an accident or road traffic offence.

Physicians have a long list of mandatory reporting duties. In Ontario there are eighteen different categories of compulsory reporting that extend far beyond child abuse situations. For example the Highway Traffic Act of Ontario requires that physicians report every individual 16 years of age or over attending upon the physician for medical services, who, in the opinion of the physician is suffering from a condition that may make it dangerous to operate a motor vehicle. Reports must be sent to the Registrar of Motor Vehicles, and include the name and address of the individual, as well as the medical condition that affects their ability to drive.
Ontario physicians involved in the care of mentally ill patients who are following community treatment plans, have specific reporting duties under the Mental Health Act, and its regulations. These obligations include providing the police with information pertinent to the community treatment plan. Where a physician issues an order for examination, the physician must ensure that the police have complete and up-to-date contact information of the physician responsible for completing the examination (including name, address and telephone number), and are informed immediately if the patient attends the examination or if the order is revoked for any other reason before it expires.

Every Ontario facility that treats a person for a gunshot wound must disclose to local police services the following: the fact that a person is being treated for a gunshot wound, the person's name, if known, and the name and location of the facility. Ontario’s legislation (which was copying U.S. initiatives) was quickly followed by the Canadian provinces of Saskatchewan, Manitoba, Qu├ębec and Nova Scotia.
Ontario physicians are required to tattletale on their patients and fellow doctors if they suspect cheating on the medicare system. When, in the course of professional duties, a physician has reason to believe that a person (either another physician or an individual) or entity has paid or conferred a benefit, or charged or accepted payment of a benefit in exchange for improved access to an insured health service, the physician must report the matter to the General Manager of the Ontario Health Insurance Plan. Under the Health Insurance Act, physicians are required to report instances of health card fraud.

Nova Scotia has a similar long list of mandatory reporting requirements imposed upon its doctors. They go one better with The Personal Health Information Act imposes a duty to report on physicians where there has been a privacy breach. An individual who has custody or control of personal health information about a patient (such as a physician) must notify the patient as soon as possible if the custodian believes that the information is stolen, lost or subject to unauthorized access, use, disclosure, copying or modification; and as a result, there is potential for harm or embarrassment to the individual. Creates a kind of damned if you do, damned if you don’t situation.
Mandatory reporting just keeps getting bigger and bigger. There is a problem; let’s pass a law to compel someone to report it. If a doctor already has to deal with 18 different mandatory reporting situations, one more won’t make much difference. So what if the doctor’s major stress point with a patient is no longer diagnosing an illness and developing a successful treatment program but rather is figuring out whether there is a mandatory reporting requirement. The patient on the other hand has to wonder if it is a relationship with a medical caregiver or a deputized cop.

One well meaning law by one well meaning law we are creating a society where everybody is a spy on everybody else. Totalitarian regimes in other times and other places have created spy-on-spy systems in one big swoop; we are doing it with a "thousand cuts".

Saturday, 9 August 2014


The Star Chamber was an English court of law that sat at the Royal Palace of Westminster from the late 15th century until 1641.   Court sessions were held in secret, with no indictments, and no witnesses.  Evidence was presented in writing.  

The court was set up to ensure the fair enforcement of laws against the English upper class, those so powerful that ordinary courts could never convict them of their crimes.   a court of equity, which could impose punishment for actions which were deemed to be morally reprehensible but were not in violation of the letter of the law. This gave the Star Chamber great flexibility, as it could punish defendants for any action which the court felt should be unlawful, even when in fact it was technically lawful.   Common role of dealing with riots and sedition   by the time of King Charles I, it had become synonymous with misuse and abuse of power by the King and his circle. King James I and his son Charles used the court to examine cases of sedition, which meant that the court could be used to suppress opposition to royal policies. It came to be used to try nobles too powerful to be brought to trial in the lower court.  The Star Chamber quickly gained a notoriety

In 1641, the Long Parliament, led by John Pym and inflamed by the severe treatment of religious dissenters and other abuses abolished the Star Chamber with the Habeas Corpus Act 1640.   After its abolition it became a maxim in the Anglo jurisdictions that legislatures and courts should be open to the public; the very term “Star Chamber” became a negative attached to any court or legislature that was not open. 

One of the defining characteristic of the new unfreedom is that more and more legal processes and legislative activities take place behind closed doors.   In the last couple of decades secret courts have reappeared in the U.K., the U.S. and Canada.  With the passage of the Justice and Security Act "secret courts" (euphemistically called Closed Material Procedures) were introduced into ordinary civil cases in Britain for the first time since the Star Chambers.  Despite vehement opposition, the Act gained Royal Assent on 25th April 2013. It has not yet come into force because the rules of court provided for under the Act have not yet been passed and so, as yet, are not being used. It is only a matter of time, however, before secret courts will be used in civil cases across the United Kingdom.

This legislation allows any civil case in any of the High Court, Court of Appeal, Court of Session or the Supreme Court to be made subject to the Closed Material Procedures if sensitive information is required to be disclosed during it course.  Sensitive material means material the disclosure of which would be damaging to national security.  The result will be a legal proceeding where one party is not able to take part in either a part or the whole of a trial. Furthermore their lawyer cannot be present; neither the party nor their lawyer can see the evidence the government is relying upon (and which is said to be national security sensitive information); they cannot know the government's case or the evidence upon which it is based and consequently cannot challenge this evidence or the government's case.  Finally they cannot know the reasons for the judge's decision based on that evidence.  The civilian will be told whether they have won or lost, but not the facts nor all the reasons upon which the result is based.

The trigger for Closed Material Procedures is national security.  National security, however, can have a very wide ambit.  National security usually means more than just defending the state from the aggressions of other states.  It can concern a wide range of facets including those affecting the non military or economic security of the nation and the values espoused by the national society. In order to possess national security, a nation needs to possess economic security, energy security, environmental security, etc.  Accordingly security can theoretically be at risk not only from threats from another nation-state but also from violent non-state actors, multinational corporations, drug cartels, non-governmental organisations and even natural disasters.

The Investigatory Powers Tribunal (IPT) is a secret tribunal that has been operating in its present form in the U.K. since 2000.   It has exclusive jurisdiction over challenges to the clandestine surveillance programme being carried out by the government.  An application must be made to this secret tribunal to challenge a secret surveillance activity and to request an explanation as to why the government is spying on a British citizen or citizens.

United States has its own secret court, the Foreign Intelligence Surveillance Court (FISC, also called the FISA Court).  It is a federal court which was established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal law enforcement agencies.  This court is also a "secret court" – its hearings are closed to the public. Usually only government attorneys are permitted to appear before it.  It sits ex parte - in other words, in the absence of anyone but the judge and the government present at the hearings. This, combined with the minimal number of requests that are rejected by the court - the Court's approval rate of application is over 99% - has led experts to characterize it as a rubber stamp.

Canada too has a secret court.  Sessions take place in a secret bunker in Ottawa.  Judges are designated by the Chief Justice of the Federal Court of Canada under the Canadian Security Intelligence Service Act and are empowered to issue secret warrants and to authorize various spy activities including the installation of wiretaps and bugs.  Unlike the Foreign Intelligence Surveillance Court judges can and very occasionally do retain amicus curiae or  "friends of the court" to make submissions in opposition to government requests.

There are other courts and tribunals in Canada which meet in secrecy or partially in secrecy.  Even the Supreme Court of Canada can and does meet in secrecy when dealing with alleged security matters. Portions of the inquiry into the torture of Canadian citizen Maher Arar (2004-06) were conducted in secret by Ontario Associate Chief Justice Dennis O'Connor, while former Supreme Court Judge Frank Iacobucci presided over a completely secret inquiry into Canada's role in the torture of Canadians, Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin.  Even the Competition Tribunal is engaging in judicial secreacy.  It dismissed a complaint from major Canadian retailers about the way credit card companies charge them for processing transactions but said “The reasons are confidential. A public version of the decision [will be released] as soon as possible after a determination as to what information must remain confidential has been made."  

Canadian immigration tribunals can accept and increasingly are accepting secret information that cannot be contested by refugee claimants. Under Section 86 of Canada’s Orwellian Immigration and Refugee Protection Act, the Immigration Minister may, using the exact same procedures of the security certificate, apply to introduce secret allegations.

Canada and the U.S. are contemplating entering into trade agreements which will have as their defining characteristics secret tribunals which neatly override laws passed by elected legislatures. Under Canada’s Foreign Investment Promotion and Protection Agreement (FIPA) foreign companies can bring proceedings in secret tribunals outside of Canada’s court system.  Municipal, provincial, and federal governments could be prevented from enacting strict environmental and health regulations lest they be sued by oversea investors who can claim that the rules have changed and are adversely affecting their investments.  Decisions favouring investors will often be made by three personal tribunals (with members often drawn from international law firms) safeguarded from any annoying public scrutiny.

Wednesday, 25 June 2014



In the last twenty years there have been a whole set of developments in the Anglo nations (the U.K., Canada, United States, New Zealand and Australia) which adversely or could adversely affect rights and liberties which have been both long held and proudly proclaimed.  These developments include over-criminalization, growth of regulatory mazes, micro-management of interpersonal relationships, invasive surveillance technology, statutory abridgments of civil legal protections, privatized police forces and prisons, new ways to punish people and zero tolerance policies in schools and elsewhere. They occur at various levels and superficially appear unconnected and uncoordinated.   Perhaps for these reasons we have not really grasped the extent to which our freedoms are being eroded. 

We look for snapshots of this dystopia in the works of George Orwell or Franz Kafka.  And so the terms “Orwellian” and “Kafkaesque” are often applied to what we observe in modern society.  certainly there are comparisons to what people experience in dealing with bureaucratic authority to the experiences of Josef K. in the Trial.   There is a Kafkaesque edge to many of the U.S. prosecutions that are reviewed by Harvey Silverglate in Three Felonies a Day: How the Feds Target the Innocent and by Paul Roberts and Lawrence Stratton in The Tyranny of Good Intentions.

In many ways, however, the new totalitarianism is not like the totalitarianism the world has known in the past. It is not as visibly apparent; it has not arrived in one fell swoop.  Most significantly it is not directly experienced by the average person in his or her daily life.  It is almost a reverse lottery where (at the present time) only a small percentage of people like Abner Schoenwetter (six years in a federal prison for importing Honduran lobsters that were packed in plastic rather than cardboard) end up in a nightmarish entanglement with the legal system.

Many people do not see what is happening because it is a velvet totalitarianism and it has been has making an incremental step by step advance over the last thirty years.  There is no one person, no single political group, no secret society designing the new totalitarianism yet it is ever evolving on a number of different fronts.

I identify four horsemen of totalitarianism.  The first horseman is represented by an enormous expansion of the criminal sphere.  All sorts of acts have been partially or fully criminalized.  There are new environmental crimes, new health and safety crimes and a panoply of new crimes in the sphere of interpersonal relationships.  Behaviours, which were not considered criminal, such as youthful exuberance and poor social conduct, are now brought into the criminal net.

The second horseman is surveillance.  The information gathering abilities of the modern state and large private corporations are immense.  It is now recognized that both governments and corporations gather enormous amounts of information on people through their behind-the-scene access to internet activities. There are also many other surveillance instruments including cameras on every street corner, cameras attached to police vehicles, drones in the sky, virtually unrestricted wire tapping and ubiquitous tracking devices.  The modern state is also putting together a citizen spy system - using nurses and doctors, social workers, teachers, tax collectors, etc. to report on individuals who are allegedly engaging in bullying, tax evasion and other unpopular acts.

The third horseman is the assault on those legal protections that developed over the centuries precisely to protect freedoms and civil rights.  These traditional legal rights have had identifying labels such as habeas corpus, rule against double jeopardy, right to remain silent, privilege against self-incrimination, mens rea, open courts, right to legal representation, the demarcation between the civil and the criminal and proof beyond a reasonable doubt.  Governments have used the cover of fighting terrorists and criminal gangs to severely abridge all of these freedom protecting legal doctrines.

A big part of the undermining of civil rights results from the way the modern state grounds down its victims with publicly financed litigation.  The conduct of the civil forfeiture process in British Columbia is illustrative of the state “winning” through relentless litigation.  The government side is not constricted by costs; on the other hand, the forfeiture target will invariably be forced to pay thousands of dollars in legal fees to defend his or her property.  The result is that the forfeiture target more often than not makes the pragmatic choice and gives up.  The B.C. Civil Forfeiture Office is fully aware of its power in this respect and in fact does not hesitate to bring it repeatedly to the attention of the target.

There has been a relentless growth in a new kind of adjudication system - set deeply in the bureaucracy.  An example is Workers Comp tribunals.  These new tribunals have an irresistible proclivity to go private - to become quasi-secret tribunals.  This is often justified for superficially good reasons - preserving privacy of participants.

The fourth horseman is the punishment regime.  Starting in the 1980's the U.S. went crazy with handing out lengthy terms of imprisonment.  Three strikes and you are out and you get twenty year for stealing a loaf of bread.  People receive prison sentences which will lock them up for half their life because they had a few marijuana plants.  

It is not only a matter of imprisonment.  In the U.S. in particular there are numerous collateral consequences which accompany incarceration - civil penalties, which, unlike fines, prison time, or probation, are not specified in the criminal law and are not imposed during the sentencing of the convicted person.  These collateral punishments are frequently post-incarceration.  Then there is civil forfeiture which does not even require a conviction.  Civil forfeiture of a personal residence or an expensive vehicle is an out of proportion fine which for many people is a life disaster - they would rather have spent a few months in prison.  Then there are the other social control punishments - expulsion from a school or university or the loss of a driver’s license.  The Greater State is even re-legitimizing long-term ostracism.

Velvet totalitarianism seems to come together most completely with children and old people.  Under the rubric of safety concerns children are not allowed to play with any form of a ball on a school ground and there are absurdities such as no touch rules for five year olds.  Kids are expelled from school because they draw a picture of a handgun or have a plastic knife in their backpack.  In the U.K. boisterous teenage behaviour is labelled as anti-social.  At the other end of life old people are institutionalized against their will - ostensibly in order to protect them.

The truly worrisome event will be when the Four Horsemen get together. This will happen when the instruments of surveillance - whether it is spy cameras, citizen spies or internet snooping is used in a coordinated manner to keep tabs on all aspects of an individual activities including his or her  interpersonal relationships.  The charges that emerge out of this giant spy system will be dealt with by bureaucrat cum police, bureaucrat, policeman and judge all rolled up into one, 

Does there come a point when the combined effect of the four horsemen of totalitarianism results in a very different type of society?  A New Society that is arriving by stealth.  

Tuesday, 20 May 2014


Forty years ago police were almost unknown in Canadian schools and rare in American schools.  In the early 1990s following several high profile shootings police started to be present on a daily basis in American schools located in the poor areas of major cities.  John Paul Jones in Philadelphia was a typical school located in an inner city slum.  It was nicknamed Jones Jail by its students and was typified by metal detectors, barred windows, windows that open only a crack ostensibly to keep objects or people from being thrown out of them and militaristic security staff that roam the hallways demanding documentation from students not in the classroom.

After Columbine the inner city slum model for a school rapidly spread across the U.S.  In the wake of the 1999 shootings at Columbine, high schools in the United States rushed to adopt strict policies and filled the hallways and entrance ways with armed guards, surveillance cameras, metal detectors and drug-sniffing dogs. These are now almost standard features of the modern American school. Yet for all these extreme measures, public fears over student safety remain high.  

The policing of schools was accelerated further by the Sandy Hook tragedy. The NRA had a solution to Sandy Hook - it certainly wasn’t restricting the civilian ownership of military level weaponry.  It was the arming of the other side - armed police officers, security guards and staff members in every American school, including allowing trained teachers and administrators to carry weapons.

This inspired various arming proposals across the country.   For example, rural Northern Colorado's Thompson School District plan was to put reserve deputies in the halls of six elementary schools.  The principal of one of the schools welcomed the development saying that “it is very difficult to go to bed at night if you don't think you've done absolutely everything you can to keep your kids safe, and when Sandy Hook happened and we realized even elementary schools are vulnerable, it was a very difficult time,"  Marlboro Township, a leafy, well-heeled New Jersey suburb was one of the first jurisdictions in the aftermath of Sandy Hook to station a permanent armed cop in each of its nine schools.  Mayor Jonathan Hornik said “With this new evil, you can’t just sit there and hope that it doesn’t happen in your town. We must protect our kids.”  A small school district in rural Arkansas proposed arming the teachers. Clarksville High School, planned to take this step under a state law that allowed licensed, armed security guards on campus. Teachers in the program would, after undergoing 53 hours of training, function as security guards as well as educators. 

Now America’s schools are being redesigned with a single electronically controlled entrance with cameras, metal detectors and invariably a guard.  Back in Marlboro the council is planning to fortify school entrances with steel doors and bulletproof glass and installing surveillance cameras “all over” to feed to the local police department.

In addition to armed guards at the front door the numbers of police assigned to public schools have soared. An estimated one-third of all sheriffs' offices and almost half of all municipal police departments assign nearly 17,000 sworn officers to serve in America’s schools and nearly half of all public schools have assigned police officers.  In the 2008-2009 school year, there were 5,246 law enforcement officers in New York City’s public schools but only 3,152 guidance counselors.  

The nice name for these policemen in the classrooms of America is school resource officers or SRO’s.  One of the primary consequence of the battalion of SROs in America’s schools has been a surge in criminal charges against children for misbehaviour that used to be handled in the principal's office.  As can be expected the very presence of these police officers in the schools results in greater numbers of students being arrested or charged with crimes for nonviolent, childish behaviour.   

In 2010, the police in Texas gave close to 300,000 "Class C misdemeanour" tickets to children as young as six for offences in and out of school.  Misdemeanours include swearing, misbehaving on the school bus, scuffles, truancy and cursing at teachers.  Children have even been arrested for possessing cigarettes, wearing "inappropriate" clothes and being late for school.  The result is that every day hundreds of schoolchildren, who have received Class C tickets. appear before the courts. These charges result in fines, community service and even prison time.  Texas records show more than 1,000 tickets were issued to primary schoolchildren over the past six years.  It has been described as a school-to-prison pipeline" with a high proportion of children who receive tickets being arrested time and again because they are marked out as troublemakers or find their future blighted by a criminal record.

Most schools do not face any serious threat of violence and police officers patrolling the corridors and canteens are largely confronted with little more than boisterous or disrespectful childhood behaviour.  "What we see often is a real overreaction to behaviour that others would generally think of as just childish misbehaviour rather than law breaking," said one observer. Tickets are most frequently issued by school police for "disruption of class", which can mean causing problems during lessons but is also defined as disruptive behaviour within 500ft (150 metres) of school property such as shouting, which is classified as "making an unreasonable noise".

Accompanying the policed school are zero tolerance programs.  Zero tolerance policies lead to the inevitable idiocies.  Several years ago a first grader student in Delaware was suspended from school after bringing a Cub Scout-issued fork-spoon-knife tool into his classroom.  Under the school's zero-tolerance weapons policy, he was suspended for 45 days and forced to attend an alternative school.  Then there was the honors student who spent a night in jail for skipping class and the 9-year-old boy who was suspended for sexual harassment for remarking that his teacher was cute. The charge against Sarah Bustamantes on the police docket was "disrupting class". The crime; she sprayed two bursts of perfume on her neck in class because other children were bullying her with taunts of "you smell".

When her teacher called the policeman, he did not have to come very far since he patrols the corridors of Sarah's school.  That is the thing about zero-tolerance policies.   They do not apply just to deadly weapons and drugs but to fighting, prescription drugs, Scout’s knifes, perfumes, harmless comments and anything else deemed bad in the closed mentality of certain administrators and teachers.  If a student is caught violating these broad rules, there is no discussion and no elaboration  and no investigation. There is just a one-size-fits-all punishment.

The reality is that America’s schools taken as a whole are really not any more violent or dangerous than they were forty years ago.  More than 98% of youth homicides do not occur in schools; in the 2009-2010 school year there was approximately one homicide or suicide of school-age youth at school per 2.7 million students.

America’s school children, however, are being taught a lesson about civil society; namely, that they must accept authority without question and that they have absolutely no rights to question punishment. If a kid wants to participate in an organization they learn that he or she should expect to be drug tested.  Furthermore guards and metal detectors at the “reinforced” entrances, police officers in the hallways every day and omnipresent security cameras including in washrooms are all part of normal life.  Don’t challenge these security features if you want to avoid a police record that will affect you the rest of your life.  In fact don’t do anything including saying anything which someone in authority might consider out of line.

John Whitehead of the Rutherford Institute asks “How do you persuade a nation of relatively freedom-loving individuals to march in lock step with a police state? You start by convincing them that they're in danger, and only the government can protect them. Keep them keyed up with constant danger alerts, and the occasional terrorist incident, whether real or staged. Distract them with wall-to-wall news coverage about sinking ships, disappearing planes and pseudo-celebrities spouting racist diatribes. Use blockbuster movies, reality shows and violent video games to hype them up on military tactics, and then while they're distracted and numb to all that is taking place around them, indoctrinate their young people to your way of thinking, relying primarily on the public schools and popular culture.”

If the schools are going to be mini police states how long is it before the rest of society is going to be restructured along the same lines.  Perhaps not very long.  Government offices are now heavily “fortified” with guards at the entrances, employees (all with identification badges) working in locked rooms and the (greatly feared) public largely excluded.  And like heavily  policed schools nobody really even questions this super-security environment any more.