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Rob Wipond

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  1. November 2016 Some people say that our province’s strong mental health laws save lives. A constitutional court challenge says they lead to discrimination, abuse, fear and the flight of psychiatric refugees. THE PSYCHIATRIC NURSE held out a paper cup with pills. Sarah clasped a handwritten note. Having learned not to protest loudly, the 24-year-old gave the nurse her note that read, “I have a right to my mind and my body.” Then, she reluctantly put the pills in her mouth. Sarah knew that she had to execute her escape out of British Columbia quickly, before the drugs seized control of her mind again. Sarah (she requested her name be withheld) is sharing her story to show support for a constitutional court challenge recently launched by Community Legal Assistance Society (CLAS). The Vancouver non-profit is arguing that a key part of British Columbia’s Mental Health Act, called “deemed consent,” violates the Canadian Charter of Rights and Freedoms. “At CLAS, we’re routinely told that people are either considering leaving BC to avoid our deemed consent laws, or that they’ve done so in the past,” says Laura Johnston, one of the lawyers representing three plaintiffs in the case. CLAS has many concerns about BC’s Mental Health Act, explains Johnston. However, this case is focused on how the “deemed consent” provision violates rights to security of the person and equality before the law. “This case isn’t arguing that forced treatment can never be constitutional,” says Johnston, “But it does say that forced treatment which is imposed unilaterally by a doctor with no checks or balances and no recourse to anybody else is unconstitutional.” Every Canadian has the right to allow or refuse medical treatments, even if our choice could cause injury or death—such as choosing whether to undergo risky surgery. We can write advance directives about what we will and won’t accept if we lapse into a coma or otherwise become mentally incompetent, and appoint a “substitute” to make decisions for us. However, in BC, the moment we become an involuntary psychiatric patient, those rights are eviscerated. Mentally competent or not, and regardless of what’s in our advance directive or what our substitute says, we are “deemed” to consent to any treatments a psychiatrist recommends. “I was shocked when I came across these sections of [BC’s] Mental Health Act. I thought I was misunderstanding things,” says Melanie Benard, a lawyer with the Council of Canadians with Disabilities (CCD) which is one of the plaintiffs in the case. “There’s a blatant violation of the equality and liberty rights of people with disabilities,” she says. Left to right: Melanie Benard, Irit Shimrat, Francesca Simpson Benard says psychiatric patients’ rights were clarified in constitutional law 25 years ago and implemented in every province—except BC. For example, in other provinces, after being involuntarily committed, a person still cannot be involuntarily treated until a competency test is conducted. “You look at things like, does the patient understand their diagnosis? Do they understand the treatment that’s proposed, the risks and benefits of undergoing the treatment?” says Benard. “It’s really discriminatory to assume that everyone with a mental health problem is mentally incapable of making their own treatment decisions,” says Johnston. She says it’s also important to understand how “wide-sweeping” involuntary treatment has become. “A lot of people believe that you have to be a danger to yourself or others to be involuntary, and that’s just not true.” In BC, anyone can be committed if a physician believes that the person has a mental disorder and that committal could provide “protection” or prevent the person’s “mental or physical deterioration.” “It gives a lot of discretion to the doctor,” comments Johnston. According to government statistics, BC psychiatrists have been involuntarily committing people at unprecedented rates: 13,641 people last year—a doubling since 2002, or 73 percent increase per 100,000 people. Though statistics weren’t available, it’s widely believed that the use of “Extended Leave” has increased even more dramatically. This occurs when someone is considered well enough to be released from hospital and live at home, but is still being forcibly treated. And there seem to be more people like Sarah who voluntarily seek help, only to get committed if they disagree with recommended treatments. Jonny Morris, the Canadian Mental Health Association’s (CMHA) provincial policy director, says involuntary treatment has been “a long-standing issue” of polarized contention among patients, family members, service providers and community groups. Morris hopes that this constitutional challenge will “raise public awareness about an often hidden part of the system” and promote “respectful” dialogue about how things could be managed differently. The initial court submission from Community Legal Assistance Society provides a glimpse into this hidden world. The dangers of psychiatric treatments Plaintiff Louise MacLaren is a 66-year-old retired nurse from Victoria. She’s been frequently treated against her will in hospital and at home over the decades. According to the submission, MacLaren experiences “extreme anxiety” when forced to undergo electroconvulsive therapy (ECT), which causes her “confusion and disorientation” for weeks afterwards, and permanent memory losses. While a typical ECT treatment involves 12 rounds of shocks over three weeks, MacLaren has received 300 rounds. “In 2010, staff administering ECT forgot to place a mouth guard in Ms. MacLaren’s mouth during the treatment,” says the submission. “Ms. MacLaren shattered her teeth due to the convulsions in her jaw[.]” The other plaintiff is a 24-year-old Vancouver man with a Master’s degree in music and piano. Since 2015, he’s been forced to take antipsychotic medications at home that cause “involuntary movements, muscle stiffness, muscle pain, and loss of dexterity, all of which impede his ability to play the piano.” These side effects, the submission states, cause him deep suffering “because playing piano is such a fundamental aspect of his life.” Apart from Council of Canadians with Disabilities, the plaintiffs aren’t speaking to media. Other people, though, paint an equally grim picture of involuntary treatment. After what she calls a “bad event” in her life, Sarah went to a Lower Mainland psychiatric hospital seeking help. She asked for a sleep medication, but didn’t want anything more. “I wanted to be able to manage what was going on for me, especially relating to the emotions that I was feeling, and the negative feelings, without medication…That was very important to me.” However, she was also given an antipsychotic. “It was an ugly, ugly feeling,” says Sarah, describing how the antipsychotic dulled her thinking and emotions. “If a family member came to visit me, I wouldn’t feel that happiness that they were there. Which was terrifying.” Sarah asked to stop the antipsychotic. Instead she was made an involuntary patient and told that if she didn’t take it, then security would inject her. So she continued to take the drug orally, which was almost equally repugnant to her. “The fact that I had to do this to myself…It’s you actually taking the pill and putting it in your mouth.” For many, involuntary treatment is often violent. Irit Shimrat is the Vancouver-based author of Call Me Crazy: Stories from the Mad Movement, and editor of a magazine published by the recently shuttered West Coast Mental Health Network—BC’s only charitable non-profit service organization run by and for people who’ve experienced psychiatric treatment. (WCMHN had its $100,000 in annual funding axed by the BC government without explanation, while hundreds of millions in new funding has gone to conventional services run by mental health professionals.) Shimrat has twice gone for over a decade without any psychiatric involvement, but in between those periods has been forcibly treated over a dozen times. The last time that she “went crazy,” says Shimrat, was after both her closest friend and her mother died. “I was shattered emotionally, and I was behaving in ways that were very disturbing to my neighbours.” When in acute distress, Shimrat’s been apprehended after throwing her belongings out the window, and after running around naked yelling “Emergency!” Shimrat says many people like her experiencing intense mental turmoil become afraid and “loud and feisty and angry and irrational” when threatened with forced treatment. In response, staff can become “mean,” she says. During one admission, Shimrat says she fought as she was stripped in front of male police and orderlies, tied to a gurney in four-point restraints, injected with an antipsychotic, and locked in isolation. “The experience of being locked up is brutal,” comments Shimrat. “But the experience of being locked up and then debilitated with antipsychotics is much worse.” Antipsychotics are tranquilizing medications that are the most commonly used drugs in situations regarded as short-term “psychiatric emergencies” or long-term “psychosis.” While some people can find a tolerable dosage that quells their mind but leaves them still functional, for others—especially when they’re not allowed to participate in treatment decisions—antipsychotics can be debilitating. “The whole time that I was ever on antipsychotics I sort of fluctuated between wanting to die and thinking that I had died and gone to hell,” says Shimrat. “All colour was drained from the world, like everything was grey, and I couldn’t remember where I was from moment to moment or why I was standing where I was standing, what I had been planning to do. There was just a sort of sense of grinding, endless tedium and pain, physical pain as well as the pain of not being able to think.” Shimrat says she has also experienced akathisia, a restlessness and agitation that 30 percent of antipsychotic users sometimes experience and that can, in extreme cases, cause suicidal feelings and violent rages. “It’s horrible,” she says. “I’ll never recover completely from the trauma of it,” says Shimrat. Her experiences of being involuntarily treated, she says, have been “infinitely worse than even the worst moments of my so-called mental illness.” Shimrat believes that many psychiatric patients are becoming worse and not better because “they’re having their brains tampered with” in these frightening and damaging ways. For her part, Francesca Simpson says she’s “feeling pretty good” on medications because they “bring me down and take the edge off.” However, she wants more control over the types and amounts. She’s currently being administered a long-acting antipsychotic injection, plus two antipsychotics and a mood stabilizer daily, which she finds excessive. Since 2010 she’s been almost continuously involuntarily treated in her home by an Assertive Community Treatment (ACT) team. Simpson describes it as “intrusive,” “humiliating” and “demeaning.” She must be at home at certain times every day to have her meds “witnessed.” For the injections, she must pull her pants down. ACT staff change constantly; she prefers women but can’t refuse the “strange men” entering her home. Staff probe her personal life while looking for signs of any emerging need to re-hospitalize her. “Everything that I do is pathologized,” says Simpson. The whole experience “used to just make me furious,” says Simpson, “but I’ve given up on that.” Many people raise concerns that, over the long term, treating people against their wills dissuades even those who want help from seeking it, because it undermines trusting relationships with mental health practitioners. “It’s dangerous to ask for psychiatric help,” Simpson concurs. “Certainly when I get through this, if I’m ever in trouble again, I will go nowhere near that system.” Trust and distrust of psychiatry Several health authorities declined to provide interviews about involuntary treatment. The BC government issued a written statement saying that some patients “may not understand or realize that they need psychiatric care.” That’s also the concern for Deborah Conner, provincial director of the British Columbia Schizophrenia Society, who says BCSS could intervene in the CLAS case. Conner bristles to hear words like “outdated” linked to BC law. “The reality is our Mental Health Act is actually leading the charge in doing the least harm.” Conner says the “safeguard” that BC law provides is that people don’t “languish” in hospital but get treatment quickly and continually, which she claims prevents brain matter loss. “That’s been proven,” she says. “When you have early intervention which includes medication, those treatments actually prevent ongoing brain damage.” “There are very many people in this world of psychosis who have no way—they don’t share the same reality—they have no way of stepping outside their illness and having insight into what’s happening to them,” says Conner. “We have lots of people who said, ‘Thank God you treated me forcibly, because if you didn’t, I would be dead.’” I mention that others describe forced treatment as traumatizing. “Unfortunately, in some cases that’s the only way to save that person so that they can get treated and get on a path to recovery,” says Conner. “Just painting [with a broad] brush, saying in all these cases it should be treated this way and nobody should be traumatized, that’s like seeing with rose-coloured glasses.” BCSS shares a little common ground with CLAS. “We’ve always supported family or caregiver involvement in any situation,” says Conner. The BCSS wants policies allowing people to have psychiatric advance directives and to appoint family members or others to participate in admissions and discharge planning. But BCSS stops short of wanting anything legally binding. Conner says psychiatrists must retain powers to exclude appointees who aren’t “appropriate” and to bypass advance directives. What about people seeking help at hospitals just for depression or anxiety at levels that might not unduly interfere with their competency to make treatment decisions? Conner points out that long-term involuntary treatment requires two psychiatrists to agree. “If people are involuntarily committed, it seems to us that there’s a reason why that happened.” I suggest that it sounds like Conner is putting a lot of trust in psychiatrists. “When you have two psychiatrists who’ve done a thorough review and assessment and where they have family input, that’s the trust,” responds Conner. She concedes that such assessments can be difficult, but believes that medically-trained psychiatrists are best qualified to make them. In contrast to Conner, Shimrat argues that involuntary psychiatric treatment is primarily a means for policing very upset and/or very socially disruptive but otherwise law-abiding people, that has become culturally acceptable because it is masked as science-based health care. “Psychiatry is seen as a branch of medicine and distress is seen as a form of illness,” says Shimrat. “And so with the mindset that they’re saving lives and improving things for people, the practitioners feel that they’re morally in the right.” Certainly, pharmaceutical industry money and influence have had profound impacts on psychiatry and our cultural beliefs. Governments, families and patients alike are often swayed by psychiatrists’ assertions of “proven” and “evidence-based,” where more accurate would be “some studies seem to suggest…” Barely a day goes by, for example, that we don’t hear about blood tests for depression, brain scans for anxiety disorders, the genetics of schizophrenia, brain damage caused by psychosis, and unequivocally “safe and effective” psychotropic pharmaceuticals. If any one of these “discoveries” were ever truly validated, though, it would be Nobel Prize-worthy. However, the last time psychiatry garnered a Nobel was for lobotomies—since then, Nobel committees have apparently more rigorously vetted psychiatric claims. Instead, the widely promoted “chemical imbalance” theory of mental disorders has been so resoundingly debunked that prominent psychiatrists like Ronald Pies have taken to insisting that it was only an “urban legend” which no “well-informed psychiatrists” ever believed. The American Psychiatric Association recently clarified that no mental disorders can be detected through any biological tests. “Anti-anxiety” drugs are just addictive sedatives. “Antidepressants,” “antipsychotics” and “mood stabilizers” are marketing names for drugs with clinical pharmacology descriptions stating that their “therapeutic mechanism of action is unknown”—while their known harmful side effects are legion, including sometimes brain damage. And there’s a growing body of research suggesting that, over long-term use, most psychiatric medications are doing most people more harm than good, while being extremely difficult to withdraw from. The ultimate recourse for involuntary treatment proponents is to argue that disordered people “lack insight” while, as BCSS board member John Gray has written, “[C]ompulsory treatment will usually restore someone’s freedom of thought from a mind-controlling illness…” Though superficially compelling, these are philosophical—not medical—assertions that provoke many questions. How often and for how long do we keep aggressively “freeing” someone’s mind, exactly, before the person becomes free enough to refuse our interventions? Who among us has the rightful authority to determine who has “proper” insight into reality? Is it crazy to be driven mad by an insane and destructive society, or is it a sign of sensitivity that should be nurtured and supported rather than drugged away? Meanwhile, if we simply claim that the answers are “obvious” to anyone “sane,” then we cut off an important human legacy and potentiality—our ability to deeply question ourselves and our culture. Stigma, stereotypes…sanism If final judgments to psychiatrically treat people against their wills are not truly being driven by indisputable medical science, then what is driving them? A person in BC can appeal a committal to a three-person tribunal. Hearings are not open to the public, not bound by rules of court process, and notoriously erratic. Patients are often forcibly drugged during hearings. Though every patient has a right to a legal aid lawyer, hundreds annually cannot get one because government hasn’t provided sufficient funding. Less than one-fifth of patients win. In August, a patient sued to push the BC government to fund enough legal advocates. “It’s very troubling that despite numerous calls on the government to increase funding to ensure that everyone who is entitled to legal aid gets it, that they’ve pretty much ignored the problem,” says Kate Feeney of the BC Public Interest Advocacy Centre, co-counsel in that case. (Government began negotiating, so the case adjourned until December.) Many argue that this whole farce is but one example of how prejudiced society is against psychiatric patients—pointing to how even the BCSS and CMHA have done little over the years to raise alarm about this legal representation crisis. Lawyer Benard believes stigma, stereotypes and sensational news stories about rare cases of violence drive much of society’s support for involuntary treatment. “We feel like we need to be protecting these people at all costs and that we know what is best for them better than they can themselves.” Benard notes that organizations run by people with disabilities or with experience as psychiatric patients, like Council of Canadians with Disabilities, often take different positions from most mental health organizations, which are typically run by mental health professionals and family members of patients. “Sometimes there is a conflict between protecting the rights of a person in crisis and the desires and wishes of those around them,” says Benard. Because of these ubiquitous prejudices, Shimrat says that she’s “really happy” about the constitutional challenge but also skeptical. “Whatever is going to be on paper is unlikely to change what happens on the ground.” Indeed, Ontario’s rate of involuntary treatment seems to be only slightly lower than BC’s. A former BC tribunal chair says she saw appeal panels frequently exhibit a “deference to” and “over-reliance on” psychiatrists’ perspectives. Michael Perlin, an expert on US mental health law, blames it on “sanism.” Perlin’s books show, in encyclopaedic detail, that a near all-permeating deference to psychiatrists exists within judicial processes, coupled with an “irrational prejudice of the same quality and character of other irrational prejudices” towards people diagnosed with mental disorders. Sarah splits BC Sarah requested an appeal. Her psychiatrist didn’t have to, but chose to stop forcibly medicating her. Faculties back intact, Sarah researched and discovered that Alberta’s laws were different. She began preparing an escape plan, just in case. The review panel for Sarah’s appeal reached a 2-1 split decision—leaving Sarah incarcerated. She began a silent protest, giving staff handwritten objections when they handed her drugs. For two days, her tight-lipped protest also provided a cover for tonguing and not ingesting the pills. But her psychiatrist soon proposed an antipsychotic injection that would keep Sarah drugged for weeks. Sarah worried that her thinking would become so foggy she’d never be able to execute her plan. “I knew I had to leave,” she says. Into a small satchel bag she stuffed a change of clothes. Cash she’d been withdrawing to avoid using a trackable credit card. Her iPad. She acted like she was going for a smoke break, walked to where she could get a taxi, and got out where she could disappear into a crowd. She changed her clothes in a public bathroom and threw out the ones she’d been wearing at the hospital. She cut off her hair. Then she bought a ticket for a red-eye bus to Alberta. “It was the most nerve-wracking bus ride of my life,” says Sarah. “I had a feeling every time we stopped that there would be RCMP waiting for me.” The driver announced when the bus had crossed into Alberta and begun the descent from the mountains. “I actually got very emotional as I crossed the border,” says Sarah. “I’d spent the entire night in the dark…It was really beautiful, early in the morning, the sun was coming up…I was crying, and there was somebody sitting a couple seats from me, said ‘Are you okay?’ And I was like, ‘Yeah, I’m fine.’” But as the bus sped into Calgary, she saw her picture appear on the RCMP website as a “missing person,” along with a warrant for her arrest. There are other ways Media coverage of the CLAS constitutional challenge has been sympathetic, and there seems to be mounting support for possible mental health law changes in BC to remove “deemed consent” and allow people to have competency tests, advance directives, and substitutes. The CMHA’s Morris says there should be general equality between the way people experience both physical and mental health care. “What would it take to ensure that people with mental illness are afforded all of the similar rights and protections [as everyone else]?” Morris also notes that forced treatment is often related to a late-stage crisis that might have been prevented with more voluntary supports in our communities, and improvements in other “social determinants of health” like housing, income, employment, and education. Similarly, Chris Summerville of the Schizophrenia Society of Canada says that his organization is recognizing advances in understanding of how people can recover through self-empowerment and assistance in meeting their biological, psychological, social, spiritual and communal needs. In contrast to the BC Schizophrenia Society position, Summerville feels BC law could be updated to have “a little more care and caution” built into it. Francesca Simpson and Irit Shimrat suggest that if we at least made our psychiatric hospitals warm, respectful places that provided plenty of options and supports for people to voluntarily explore enhancing their own wellness, we wouldn’t have to worry much about people not wanting to go for help, or “languishing” in them. Offering robust counselling and psychotherapy services in our hospitals would seem to be a logical start—rather than relying almost totally on drugs and ECT, as is now the case. Shimrat points to alternative approaches such as exercise, arts, mind-body practices, and non-drug emergency response methods like peer respite homes and Open Dialogue family interventions. “There are other ways,” says Shimrat. “But that knowledge is suppressed and disrespected because of the strength of the status quo.” Johnston says she’s “under no illusion” that the constitutional challenge will cure the mental health system or society. But she hopes that at least the BC government will “engage with stakeholders and many different people and organizations to craft a new, fair legal framework for treatment for involuntary patients.” “Not detainable”—in Alberta Sarah turned herself in to Calgary police. She overheard the officer explain to her psychiatrist in BC that, under Alberta mental health law, Sarah didn’t appear detainable. “It was a good feeling,” she says. “But I knew it was a very scary next chapter of my life, starting it completely from the ground up.” Sarah is now in Ontario, where she has supportive family, and is studying natural ways of improving well-being. “I’ve been very fortunate in certain respects,” says Sarah. “What am I missing? My friends. My family… I was seeing somebody, that was a positive thing in my life, and that’s gone now.” She finds the term “psychiatric refugee” strong, but also feels it’s in some ways apt. “I would love to come back,” says Sarah. “If the laws change, I probably would.” Rob Wipond has been reporting on the lack of civil rights in the BC mental health system since 1998. He is the recipient of a number of journalism awards for his writing in Focus.
  2. December 2015 A surprise government announcement could lead to the resolution of long-standing controversies about police secrecy. THE BRITISH COLUMBIA PROVINCIAL GOVERNMENT has pledged to pass legislation to make the BC Association of Chiefs of Police and BC Association of Municipal Chiefs of Police “public bodies.” The announcement came from Bette-Jo Hughes, Chief Information Officer and Associate Deputy Minister of the Ministry of Technology, Innovation and Citizens’ Services, speaking in mid-November to MLAs reviewing the Freedom of Information and Protection of Privacy Act. The amendment to FOIPPA could resolve many concerns about how the associations operate—concerns that Focus has been reporting since 2012. “I will be prepared to celebrate when the ink is dry,” commented Micheal Vonn, policy director for the BC Civil Liberties Association. Vonn has reason to be concerned. For years, members of the associations have sidestepped transparency and accountability by ping-ponging between claims that they were acting as “private citizens” or “public servants.” For example, the BCACP and BCAMCP successfully asserted that they were not subject to freedom of information laws because they were private groups. Conversely, the associations didn’t have to register as private lobby groups, because their members successfully argued that they were public servants just doing their public duties. Over the course of reporting on the subject, I eventually obtained some heavily censored minutes of BCACP and BCAMCP meetings on file at police departments. I learned that, aside from police officers, members of the BCACP included senior representatives from public bodies as diverse as the BC Ministry of Justice, Conservation Service, CSIS, FBI and Canada Post, along with representatives from the private sector such as banks. And what were they doing? On the “public” side, for example, the associations were developing policing policies, coordinating police forces, crafting legislation, signing commitments for all police departments, and appointing officers to public agencies. On the “private” side, they were raising funds, speaking to media, and lobbying. The conflicts of interest in this unusual setup were many: The police officers took thousands of dollars from the banking industry while pledging to improve police responses to crimes at banks. Some chiefs and their police boards were taking positions in support of medical marijuana, while the same chiefs, through these associations, were lobbying government against medical marijuana. Was all of this ethical? Or legal? BC Information and Privacy Commissioner Elizabeth Denham held an inquiry and determined that the associations acted like public bodies. In April 2014, Denham recommended that the government pass legislation to clarify that the associations were public bodies. The government did not do that, and the ping-ponging has continued since Focus last reported on the topic. Commissioner Stan Lowe declared that the police chiefs’ activities were “not within the jurisdiction of the Office of the Police Complaint Commissioner” because the associations were “private organizations.” Mayors Lisa Helps and Barbara Desjardins, co-chairs of the Victoria and Esquimalt Police Board, declined to become involved and stated that “this Board does not play any direct governing role” over the associations. Staff Sgt. Julie Moss dismissed my complaints about RCMP officers taking money from banks, on the grounds that the BCACP was a private society and the RCMP officers were acting “in accordance with their responsibilities listed under the Society Act.” Moss didn’t even mention the Royal Canadian Mounted Police Act requirement “to avoid any actual, apparent or potential conflict of interests.” One time, I got a jail-like grip on the ping-ponging ball: I caught a chief in the act of switching hats, moving my letter and personal contact information from his public police department to the private BCACP, and then sharing it with the BCACP’s diverse members. With this careless dispersal of my confidential personal information, he must have breached laws covering public or private bodies—surely one or the other or both? This June, Patrick Egan at the Office of the Information and Privacy Commissioner (OIPC) dismissed my complaint. Despite my explanations that most of my investigations into these associations were occurring in my personal time as a private citizen, Egan took the position that I was actually working in my public capacity as a professional journalist when I wrote that letter. Therefore, concluded Egan, “the information about you in the letter is considered ‘work product’ and not personal information,” and could legally be shared far and wide. Essentially, Egan seemed to think that I was just trying to pull a fast one on an innocent police chief: Imagine Wipond believing he can simply switch hats at any time between his public and private roles and get away with it! I tried using the associations’ vague status to aid me in a complaint to the OIPC about the censored sections in the associations’ minutes. I pointed out that all of the supposed confidential information in them had been openly shared by the chiefs with a diverse array of public and private sector members and guests affiliated only by virtue of their participation in these unofficial groups, all of whom had apparently also received unredacted copies of the minutes without any clear confidentiality policies in place. Therefore, I argued, the police departments who’d given me copies had no right to censor the records now as if they were the minutes of highly confidential internal policing operations. But in November, OIPC adjudicator Elizabeth Barker upheld virtually all of the redactions, as if the associations were public bodies operating confidentially. “In my view,” Barker wrote, “there is nothing to suggest that [the members] are acting in their private or personal capacity when participating in BCACP and BCAMCP activities.” Pong! Like me, Pivot Legal Society lawyer Douglas King said he felt frustration with much of Barker’s decision. King and Vincent Gogolek of the BC Freedom of Information and Privacy Association had provided an intervenor submission. “In some ways, it was the easy decision,” said King. “But it didn’t really get to the heart of the matter.” King pointed to how Barker ignored the associations’ own claims in other contexts about their private status, downplayed the fact that some members weren’t public servants, and uncritically accepted assertions that the associations operated with an implicit “understanding” of confidentiality. “It’s like creating two tiers of members of the public,” said King. “You’ve got members of the public who are part of these police organizations, who are in the favour of the police, and they have access to these documents that the other part of the public doesn’t have…It’s almost like it gives the police the ability to invite whoever it wants to be part of the government for the day.” This became secondary, though, after Hughes’ surprise announcement of the plan to bring clarity. “[G]overnment is drafting an amendment that will change the definition of a ‘local public body’ to include a police association,” stated Hughes. “This change will cover the BC Association of Chiefs of Police as soon as the amendment is passed and will allow the BC Association of Municipal Chiefs of Police to be covered once it is a legal entity.” “It’s exactly what we asked for right at the outset,” commented Vonn. “I’m happy to see it,” said King. “Our fear always from the beginning with these organizations was that they were downloading decision making and authority to private bodies away from the public eye. Making them public bodies obviously prevents them from doing that…It’s the correct decision.” At a press scrum with OIPC Commissioner Denham and Assistant Commissioner Michael McEvoy, I asked: Other than finally having to respond to information access requests, what changes in information handling and sharing practices will the associations have to make once they’re legally identified as public bodies? “They will have to figure that out,” answered McEvoy. “They will have to figure it out, because they’re going to be under a legal obligation to,” said BC FIPA’s Gogolek. “They’re now on notice.” Gogolek noted the amendment would allow the OIPC to investigate the associations. “Given the ambiguity around these bodies, it might be a useful thing after 12 or 18 months for the Commissioner’s office to go in and take a look and see how they’re doing in terms of compliance.” Could this also affect the associations’ policing policy and governance activities? “I think the police had it pretty easy…in being able to run some of their more controversial and difficult policy decisions through [the associations] so that the public didn’t really have much of a say in them,” said King. “Maybe this is the beginning of the end of that.” And it should prompt public debate about “docile” police boards, added King. “Unfortunately, over the last few years, from our experience, the BCACP seems to have more power and control over actually setting police policy than the democratically appointed police boards. That’s concerning. The fact that police boards seem to be all too willing to allow another agency to step in and play their functional role—it shows how ineffective the police boards have been.” Moving ahead, King suggested organizations like Pivot be allowed to participate at BCACP and BCAMCP meetings. “If that’s where policy is being created, in a democracy, the public has to have a say.” At deadline, the BC government told Focus that there was “no timeline” to actually pass the amendment. Vonn advised remaining vigilant. “I have every reason to think they wouldn’t want to do this; they’ve resisted it so far,” said Vonn. “I think this is only voluntary insofar as a certain amount of attention has been brought to bear on the issue.” Rob Wipond won a Webster journalism award last year for his writing in Focus on the police chief associations. He’s currently working on a book.
  3. May 2014 The unplugging of a Saanich School District database raises serious concerns about the BC government’s secret plans for students’ personal information—and for everyone’s BC Services Card information. THE BC MINISTRY OF EDUCATION warned Saanich School District in March that it would cost the district millions of dollars to make their openStudent database properly integrated with the BC Services Card. Daunted, the school board immediately cancelled development of their in-house database for recording student information, abandoning the two years and $1.5 million they’d invested. However, there’s a snag in this seemingly straightforward story. Based on the facts the public has been given about the BC Services Card, the government’s assertion to Saanich couldn’t possibly be true. So was the provincial government misleading the school district? If so, why? Or does the government have secret plans for the BC Services Card and our schoolchildren’s personal information that are much more invasive, expansive and expensive than the public realizes? Clues to the answers lie in understanding what openStudent is, and what it represents to the BC government. By and for the community “I do believe, still believe passionately, that what we’re doing is the best possible option for BC education,” said Gregg Ferrie, IT director for the Saanich School District, in April. “It puts development in the hands of the users instead of farming that out to large multinational corporations.” BC’s most widely-used student information system (SIS), called BCeSIS, is a commercial product purchased by the BC government, launched in the province’s schools in 2005. BCeSIS cost hundreds of millions of dollars and was fraught with problems, until the company simply shut down support for it. According to openStudent project manager Tim Agnew, the idea of developing a custom replacement for BCeSIS from free, open-source software and in close collaboration with educators emerged amongst a grassroots consortium of teachers, administrators and IT specialists from various BC school districts. Saanich decided to make it happen. “This thing was entirely done to be run as a non-profit, to be governed by the education community,” said Agnew. “It doesn’t get any better than that, to have a system that is developed for your community and by your community.” After two years, openStudent was on schedule and on budget (under $4 million). If used by all school districts, it was projected to cost taxpayers about one-seventh of the approximately $100 million over twelve years the provincial government recently pledged for Aspen, a commercial tool now dubbed MyEducation BC. Over 40 of BC’s 60 school districts showed interest in openStudent. However, the BC government was never supportive. “They’ve been putting roadblocks up since the very beginning,” alleged Agnew. A government-commissioned analysis of SIS options by Gartner Consulting resoundingly panned the possibility of building from open-source tools—even though Gartner otherwise frequently advises governments and companies that using open-source yields significant competitive advantages. Then, the BC government refused to allow Saanich to even bid on the contract for a new SIS, explaining in a brief email that the Saanich School Board was not a “legal entity,” even though it’s obviously a legal entity under the BC School Act. The government then buttressed the exclusion by specifying in the SIS Request for Proposals (RFP) that proponents could only be corporations with “a minimum of either $100 million in annual revenues or $10 million annual net income.” Ferrie said the Ministry consistently refused to even discuss openStudent. “We’ve never been offered an opportunity to sit down and find out what objections there might be. We’ve requested many, many times through emails and phone calls and invitations,” said Ferrie. “We’ve always viewed the Ministry of Education as a partner in this, that it’s to our mutual advantage to find the most relevant, cost-effective [SIS]…Never having a discussion with your own ministry, the people you’re supposed to be working with and for, makes it frustrating.” Saanich School Board Chair Wayne Hunter added that the board had twice already this year arranged meetings with BC Deputy Minister of Education Rob Wood to discuss openStudent, but Wood cancelled both meetings. Come now and come alone This March, however, Deputy Minister Wood suddenly called Saanich Superintendent of Schools Nancy MacDonald to a meeting about openStudent. According to MacDonald, he instructed her to come alone. Wood then conveyed to MacDonald a simple message. “It was a message given to us by the Ministry of Education, directly to me, that the ability for openStudent to integrate with the new BC Services Card would cost in the millions of dollars,” said MacDonald. Why would it cost so much? “It was not explained to me,” replied MacDonald. Wood gave neither general reasons nor technical specifics, and provided nothing in writing. MacDonald reported the meeting to her board. “We were all shocked,” said Hunter. “We just couldn’t go forward. We don’t have that kind of money lying around.” Did he find it strange that the government had never even hinted this to them before, but then suddenly summoned MacDonald alone to relay this information? “Yes, very much so. [I was] upset, really,” replied Hunter. “They just pulled the rug out from under us.” Meanwhile, from a technical standpoint, the extraordinarily high dollar figure was baffling. The BC Services Card is replacing CareCards and driver’s licences; nearly a million people have them already. It’s a photo ID with a chip which, when activated, will provide more secure authentication of a person’s identity. The ID card taps into IDIM, a system at this time either connecting or envisioned to soon be connecting with driver’s licence data, personal health records, and various other government services. The government’s RFP for a student information system basically only required the SIS to be able to interact with the BC Services Card/IDIM identity authentication system—a relatively simple task. “There was certainly nothing in [the RFP] that would suggest this was millions of dollars of development to do this,” said Agnew. After Wood’s assertion, Agnew asked the government for the technical specifications clarifying how an SIS must integrate with the BC Services Card system. “I haven’t heard back from them,” Agnew said. “It just strikes me as odd that it would cost that much. It’s generally not that difficult,” said Ferrie. “I think it would be nice to have those numbers that were talked about verified.” I provided details of MacDonald’s meeting to the Education Ministry’s media liaison and asked, “Was Rob Wood's statement to Ms Macdonald based on any factual information of any kind? On what was his statement based?” and “Why did Mr Wood say that? What was his intention in conveying that?” Since the story had already received publicity, including angry comments directed at Saanich from Education Minister Peter Fassbender, I believe it’s virtually certain that my questions were run by Fassbender and Wood. After two weeks, Public Affairs Officer Ben Green provided the Education Ministry’s official reply. “It was the responsibility of the Saanich school district to look at their own business case and determine the costs of meeting the requirements of a new provincial student information service, including the cost of making openStudent compatible with the BC Service Card,” an email from Green stated. Specifically in response to my questions about the Deputy Minister’s assertions, the statement from Green said only, “I wasn’t privy to conversations or meetings with the Saanich school district.” Sensitive records, strong concerns So was Wood simply trying to scare Saanich into abandoning openStudent? And if so, why? Alternatively, does the government actually intend to do expansive, expensive integration of student information records with health records and other government data that it doesn’t want to detail to Saanich or the public? And if so, for what ends? Might the government be considering allowing researchers access to that combined data? Saanich has received investment interest from school districts outside BC, so openStudent may be resuscitated; however, most school districts have now buckled to the government’s imposing deadline and signed on to MyEducation BC, and Saanich may have to as well. But the mysteries surrounding the government’s plans for student information are causing worry. MacDonald clarified that BC student information systems contain not just exam results and class grades, but report card comments, attendance, discipline incidents, information about medical issues and special needs, and more. “I don’t think people are realizing what significant information could be shared,” said MacDonald. “I don’t want to be old-fashioned about it, but I’m a bit nervous.” “There’s a lot of detailed information there about each individual who passes through our education system,” said Agnew. “It is something that needs to be safeguarded at every level. This is why we believe firmly that this should be controlled by the education community…I don’t know [the government’s] agenda, and I don’t know that anyone really knows their agenda. But as a parent, as a taxpayer, I think it’s a slippery slope. I’d be very concerned about some of the potential.” Furthermore, Ferrie pointed out that the data that MacDonald was describing is only a fraction of what MyEducation BC will capture. While developing openStudent, Ferrie said they analyzed the information BCeSIS was designed to capture and found that over 70 percent seemed superfluous to BC’s educators and education system, so they built openStudent “leaner.” And indeed, MyEducation BC is designed not just to track basic student records but also to act as a comprehensive online school administration, teaching, learning, assessment, and intra-school communications tool. In principle, with MyEducation BC, nearly every significant activity an administrator, teacher or student does could be saved to each person’s permanent record. Who won’t want access? Christopher Parsons is also concerned. Parsons is a Post-doctoral Fellow at the University of Toronto’s Citizen Lab, and he co-authored two reports about the BC Services Card for the BC Civil Liberties Association—a technical-privacy evaluation and policy analysis. Parsons said the government’s not actually building a single, large, centralized database. “It’s more sophisticated. It’s using something called a federated database management structure,” said Parsons. “Rather than having one swimming pool within which all of the government’s data will be stored, the Services Card acts as the entry way into every ministry’s pool of data.” Essentially, all the information about a citizen will be linked to a Services Card number and, depending on their access permissions, people will be able to view data about a person from different ministries’ linked databases. Reports from the company hired by the government to conduct some limited public consultations suggest that, alongside providing access to government services, health, driver’s licence, and school data, the BC Services Card could also soon be used as fishing licence, library card, and identity authentication at banks, bars, employers, and cellular providers. In one report, it’s explained that “ICBC would not be able to see health information, police would not have access to information from schools.” Nevertheless, the report continued, the IDIM will “make it technically easier” for those very things to occur. Children’s data will apparently be viewable on their parents’ BC Services Card records. It’s not clear what the government is ultimately envisioning for IDIM. “I’m a researcher and I can’t tell you what exactly it’s for,” said Parsons. “I don’t think the bureaucrats know exactly how this will and will not be used at a provincial government level.” Parsons said many bureaucrats simply want to improve online access to government services and increase efficiencies; nevertheless, Parsons called it “upsetting” and “infuriating” that “all of the ostensible policy drivers are based on anecdotes, they’re based on rhetoric, and there has been no evidence-based policy for this.” Meanwhile, Parsons explained, one of the “pernicious” aspects of the kind of system we’re building, especially in the absence of clear, publicly-vetted rationales, policy and legal frameworks, is that down the road there’ll be increasing pressure for ever more people to get access to ever more personal information about others in pursuit of similarly vague goals such as “safety,” “security,” or “efficiency.” School cafeteria monitors or physical education instructors could justify accessing students’ health records, or psychiatrists could justify accessing students’ school records. And what records might employers start expecting prospective young employees to turn over? “Until we properly deal with those sorts of questions as a society, that’s where these databases are risky,” said Parsons. And he doesn’t trust government assurances that none of this will happen. “All of them say, ‘We won’t do something that would violate the law,’” said Parsons. “But BC governments have a history of weakening privacy law. Privacy law was weakened to facilitate the Services Card in the first place.” And in the aggregate, how valuable would children’s combined school, health and mental health records be to drug companies or insurers, asked Parsons. Or could algorithmic programs identify “at risk” youth, and automatically place warning flags on their records that would follow them forever? “We’re going to build a technical infrastructure that is highly inter-operable that could be used for all sorts of really interesting data mining,” said Parsons. “So don’t evaluate what it looks like right now, but what it might look like in future.” Sensurround surveillance If not evidence-based policy, what is driving all this? BC Civil Liberties Association Policy Director Micheal Vonn has been following the BC Services Card development. “This government is convinced that data linkages are going to generate important information in research, quality control and citizen services,” said Vonn. “They are 100 percent bought in to the Big Data revolution.” For example, while teachers generally are skeptical, said Vonn, there’s spreading belief among politicians and bureaucratic managers of education systems that analyzing mass amounts of aggregated student data will eventually somehow lead to improved teaching and learning. Told about events surrounding openStudent, Vonn conceded she could only speculate about government’s motives. “They’ve been highly secretive about most of the things that they’ve done with the BC ID card,” said Vonn. She said there’s no evidence that the government is planning complex integrations of different databases; as Parsons described, it’s mainly linking databases. So for Vonn, the most compelling interpretation is that the government wants active control over what data is being captured about BC students and how it’s being stored, rather than letting school districts themselves control it through something like openStudent. “The ability to control the capture may well be what’s at issue here,” said Vonn, describing the BC Services Card as a “disciplinary device” to pressure school districts to get on-board with MyEducation BC and into the government’s own data pool. Through MyEducation BC, the government can determine what data gets captured, and more easily access, gather, analyze or give access to that data. And this theory, she added, was not coming out of nowhere. Vonn pointed to the US. “We see these issues highlighted much better, they fall into starker relief with systems that are a little more down the road than we are.” In the US, the Gates and Carnegie Foundations have pumped $100 million into InBloom, one of the biggest of a growing number of companies and non-profits gathering and analyzing public school student records. They also sometimes sell the data to private companies or government agencies that provide goods or services to the education sector or to children and families. It’s a rapidly expanding business in nearly every state, bolstered by federal stimulus funding. A 2013 US Department of Education report provides a vivid picture of where it’s leading. Lamenting the analytical limitations of test scores, the report endorses a “growing movement” to also capture “noncognitive” information about children, such as “attributes, dispositions, social skills, attitudes, and intrapersonal resources” so that we can better understand what traits create “high-achieving individuals.” Aside from supporting more comprehensive SIS data-capture tools, the report favourably discusses studies and pilot projects using surveillance cameras, sensors in computer mice, MRI devices, and other biofeedback tools to track eye movements, facial expressions, blood volume, and galvanic skin responses that help measure student “frustration, motivation/flow, confidence, boredom, and fatigue.” The report acknowledges some of these tools “can be intrusive or impractical for use in school settings.” Protests are emerging from teachers, students and parents, and Vonn said she expects similar uproar in BC. Vonn pointed to April’s little-publicized report from a “User Panel” of 35 randomly-selected citizens who examined the BC Services Card and provided feedback at the request of the provincial government. “This is fascinating. As much as possible, it’s the finger on the pulse of what citizens think about this,” said Vonn. “They don’t trust the system. There is an extreme note of caution and restraint.” Indeed, the User Panel report is rife with words like “concerned,” “unconvinced,” “caution,” “as-yet unproven,” and “unethical surveillance.” The Panel pushed for the right of citizens to opt out of the BC Services Card, the power of individuals to see records about themselves, “strong, ongoing, and independent oversight,” and limiting use of the card by private companies. They also called for more public consultations: “The User Panel is concerned that too many BC residents are not yet sufficiently aware of the BC Services Card.” “I’m very confident right now on the basis of the temperature taking that we’ve seen in the User Panel that the movement towards this data-excessive collection and integration is not what citizens want,” said Vonn. “And I would imagine that [citizens’ concerns] would never be more pointed than where the issue is the collection of information about our children in ways that may jeopardize them…Citizens of British Columbia don’t want this, aren’t asking for it, and will be increasingly concerned the more they know about it.” Rob Wipond was just as wary in grade eleven as he is now.
  4. May 2014 Internal RCMP investigation also underway INFORMATION AND PRIVACY COMMISSIONER Elizabeth Denham has recommended that the BC Association of Chiefs of Police and BC Association of Municipal Chiefs of Police should be made subject to Provincial freedom of information laws. After a review of new evidence and a public consultation process, Denham wrote on April 2 to Technology, Innovation and Citizens’ Services Minister Andrew Wilkinson stating that these private associations play a “significant public policy role with respect to legal and law enforcement issues” and “appear to exert significant influence” over British Columbia’s public policing practices. And although the Office of the Registrar of Lobbyists—which Denham also oversees—had previously determined that the associations were not in breach of the BC Lobbyists Registration Act, Denham seemed to intimate that she might revisit this matter, too, when her letter highlighted that police chief associations elsewhere in Canada are registered as lobby groups. “The decision-making process of the Associations should, as a matter of public policy, be transparent, and transparency flows from access,” Denham wrote in conclusion. “I recommend that the Associations be added as public bodies under FIPPA [the Freedom of Information and Protection of Privacy Act].” A government media liaison provided Focus with a written comment for attribution to Minister of Justice Suzanne Anton: “I appreciate comments from the Commissioner and see merit in her recommendation. We will review our options closely—I have directed staff to determine an appropriate course of action.” Anton will have to be careful to avoid an appearance of conflict of interest, since a number of senior representatives of the Ministry of Justice are associate members of the BCACP. Anton herself attended part of last November’s two-day BCACP meeting. The BC government previously followed Denham’s recommendation to make the governing board of the Police Records Information Management Environment subject to FIPPA. Denham’s recommendation comes in the wake of two years of reporting in Focus on the police chief associations, revealing that the two associations function as both primary governing bodies for public policing in the province and as extremely effective private lobby groups, but without being publicly transparent nor held accountable under BC laws regulating either practice. The BC Civil Liberties Association, the BC Freedom of Information and Privacy Association, Pivot Legal Society, post-doctoral fellow Adam Molnar of the Queen’s University Surveillance Studies Centre and I all provided submissions arguing that the police chief associations should be subject to FIPPA. Even the associations themselves, in their submissions to the Commissioner, indicated that they would not oppose being declared to be public bodies. “The BCACP takes no position on the ultimate issue of whether a recommendation should be made by the Commissioner in this matter. We defer to and will respect any decision made by you in this regard, and will fully comply with any decision the Legislature makes in response to your recommendations,” wrote current BCACP President and Abbotsford Deputy Chief Len Goerke. The BCAMCP endorsed the BCACP submission. Only David Winkler, President of the BC Association of Police Boards, provided a submission opposing making the associations more transparent. It seemed ironic—or perhaps worryingly to the point—that these civilian overseers for our municipal police, who’ve been largely kept in the dark about the associations’ activities by our police chiefs, would not see the need for making the associations more publicly transparent and accountable. The Commission for Public Complaints Against the RCMP, though, isn’t so indifferent to finding out more about what’s actually going on in BC policing. After being provided with a summary of my research and concerns, on the same day that Denham released her recommendation, the Commission for Public Complaints Against the RCMP issued an order to the RCMP to conduct an investigation into the activities of the RCMP members of the BCACP. The Commission also instructed the RCMP to provide a written reply to seven specific allegations of possible police misconduct. These include concerns about the BCACP being a private group yet nevertheless signing official legal agreements on behalf of public police forces, diverting public resources to their group’s private benefit, and taking undeclared payments from the banking sector for their private group while conducting official police business with respect to financial crimes. “The [RCMP’s response] will summarize your complaint, describe the RCMP’s investigation, and advise you of the RCMP’s conclusions…[and] will include any action the RCMP will take as a result,” stated the letter to me from the Commission. The RCMP is legally required to respond. That should be interesting reading; after two years of efforts, don’t let anyone say I didn’t go the extra mile to try to ensure I got the police’s side of the story. Rob Wipond
  5. January 2014 BC’s Information Commissioner launches an inquiry into police chief associations. INFORMATION AND PRIVACY COMMISSIONER Elizabeth Denham has launched an inquiry into British Columbia’s two police chief associations. Denham is considering recommending to government that the BC Association of Chiefs of Police (BCACP) and the BC Association of Municipal Chiefs of Police (BCAMCP) should be declared governmental “public bodies” and be made subject to the Freedom of Information and Protection of Privacy Act (FIPPA). According to her December 6 “letter to stakeholders,” the Commissioner is also inviting public input about this possible recommendation until February 14, 2014. The Office of the Information and Privacy Commissoner (OIPC) evidently has some of the same concerns about the associations that Focus has been reporting on for two years, as it’s become clear that these secretive associations have been doing everything from crafting the government’s policing legislation to ordering police media spokespersons around the province to promote the virtues of mass surveillance. “In my reflections on this issue to date,” Denham’s two-page letter states, “it appears that the policy argument in favour of such a recommendation is based on two related considerations.” Denham describes “the important public role that the Chief Constables and the Associations play in our society,” while “government and others treat the Associations as the focal point for contact with the Chief Constables on matters of public policy.” However, she points out, “the appropriate level of transparency of Association records can be achieved for FIPPA purposes only if a member of the public can request current and historical records from the Association itself, rather than relying on what might be piecemeal and incomplete records held by individual Chief Constables at any given time.” What prompted this action? “We had inquiries, we had letters, we had calls, and we examined the implications of [freedom of information] and its application to these associations in some mediation files,” said Denham in an interview with Focus. “So we’ve had interest in the question. We’ve had evidence presented to us in relation to this question.” The OIPC mediations included Focus’ own freedom of information requests for association records being held by four municipal police departments, which all four departments initially refused to release. And the “evidence” Denham was referring to included a nine-page letter and approximately 70 pages of documents submitted to the OIPC in late October, overviewing the research and writing about the associations that Focus has published. The documents show clearly that the BCACP and BCAMCP have been operating as de facto governing bodies for policing in the province and simultaneously functioning as influential private lobby groups, in secret and without public oversight, for decades. So isn’t this situation a matter of law, not of “stakeholders’ opinions” about policies? “I think it’s a bit of both, and that’s why we need to clearly examine how these organizations operate, and we need to hear views,” answered Denham. “It’s a fact-finding mission.” Denham compared it to similar situations the OIPC has investigated, such as subsidiary corporations of public universities operating outside the reach of FIPPA, and the corporate entity that oversees the BC Police Records Information Management Environment which was recently made subject to FIPPA on the Commissioner’s recommendation. “There’s precedent for us to examine these issues,” said Denham. Vincent Gogolek, executive director of the BC Freedom of Information and Privacy Association (FIPA), is one of the “stakeholders” who received the Commissioner’s letter. He sees the OIPC’s move as a positive development. Gogolek pointed to how the police chief associations have characterized themselves as public bodies to avoid regulation under the Lobbyists Registration Act, and as private bodies to avoid regulation under FIPPA. He said the Commissioner’s possible recommendation of adding the associations to Schedule 2 of FIPPA would be a straightforward solution. “I think it might be cutting to the chase,” said Gogolek. “Having the thing actually put into the legislation rather than having it adjudi- cated makes the thing 100 percent certain...It takes out any ambiguity.” If police chiefs still want to get together privately, he added, they can do that apart from the government business of the associations. However, Gogolek believes the underlying “criteria” guiding any decision are even more important, and FIPA intends to tell the Commissioner that. “We want to do a reasonably fulsome submission on this. I think we need to look at the broader question. Here we have one specific entity that should be covered [by FIPPA] for the reasons set out in the Commissioner’s letter. It just makes sense. They’re basically the heads of these various police departments assembled together, acting together, and what they do is governmental...They’re not getting together to run a toy drive. It’s not a social club...But if we’re going to be designating things [as public bodies] or asking the government to be doing it, the government should be doing it on the basis of some sort of reasonably recognizable and transparent criteria.” BC Civil Liberties Association policy director Micheal Vonn emphasized that same point. “[I’m] very, very happy that the Commissioner is seized of this [issue]. That’s good,” commented Vonn. However, she added, a “test” for distinguishing the public and private spheres needs to be developed, because both carry values worth protecting. “Freedom of association is a powerful good,” said Vonn. “On the other hand, so is governmental accountability—the heart of democ- racy. So the question here is, how do we parse it?...What I’m hoping is that we get [from the OIPC] some kind of concerted, holistic analysis.” “What we would like to see, and what we may end up making the basis for our submission, is not the question of, ‘Should the Commissioner recommend this?’” explained Vonn. “Recommendations aside...What are the indicia, the factors, the criteria that make you public versus private? Because, while this question is of keen importance in relation to police accountability matters, this is not going to be the only situation in which this arises.” Vonn pointed to a recent international survey of information commissioners that ranked proliferating public-private hybrid bodies as a top legal concern. Focus’ struggles to obtain information about BC’s police chief associations, said Vonn, don’t exist in isolation. “It certainly highlights very starkly how an important component of citizens’ rights are all based on this notion of what sign do you hang on the door: Are you public; are you private? Rights change on the basis of the sign. So the sign cannot be arbitrary,” said Vonn. “We want to see this [police chief associations] matter remedied. But we also want a mechanism whereby we can recognize ‘government’ according to a test.” Vonn pointed to a court case in which BC Transit and Vancouver’s TransLink tried to avoid certain responsibilities under our Charter of Rights and Freedoms because, they claimed, they were not public bodies. In 2009, Canada’s Supreme Court ruled against them, while laying out specific criteria for what constitutes a public body. That made clear, said Vonn, that our governments don’t have “unbridled discretion” to place public bodies outside public accountability. “If the Commissioner is in the position to apply the legal thinking of that office to shaping criteria and helping to set out a test, then we think that would be optimal,” said Vonn. And who else will submit comments to the Commissioner? Most people know little about these secretive associations, yet at the same time this would seem to be potentially the most important single policing governance issue facing BC in a generation. There are fundamental questions of public information access and government accountability involved. However, in addition, for anyone who cares about high-profile cases of police abuse or in-custody deaths, surveillance, regional policing, roadside prohibition or other controversial policing legislation, undercover operations and monitoring of political organizations, white collar crime investigations, police digital records systems, or secret collaborations between police, CSIS and other security agencies in the US and Canada, it’s now clear that BCACP and BCAMCP meetings are where all of these major BC policing issues are being discussed. And the public has not yet seen any of the minutes from a single one of some 25 BCACP subcommittees. The fact that so far Focus remains the only news outlet to cover this story in any substantive way in two years may be a testament to the moribund state of Canadian media. The associations have been operating for decades; do people understand how dramatically the Commissioner’s upcoming decision could affect the transparency and accountability of our police forces for decades to come? Rob Wipond is glad that some other people besides him are finally looking into the police chief associations.
  6. December 2013 We’re worried about each other’s “mental health” a lot more than we used to be. But calling 911 for someone can be a disastrous approach, say victims of our good—or not so good—intentions. FOLLOWING A SERIES OF QUIET PROTESTS outside Revenue Canada offices, Gordon Stewart was apprehended by police at the Victoria Law Courts, taken to a hospital, put into seclusion and forcibly drugged for 10 days. The day before, John had interred his mother’s ashes. But then came what he describes as an “unbelievable, incomprehensible incident” that, in his sensitive state, was “otherworldly” and “traumatizing.” John (who wishes to keep his name confidential) went to a Victoria recreation centre to try to clear his mind. He bumped into a friend and they talked into the wee hours. When John returned home, the lights in his condominium were on. “I thought I must have leaned up against the dimmer switch when I was putting my shoes on,” says John. Then he noticed an out-of-place binder, his laptop positioned differently, his email program opened. “Something was askew,” says John. “It was like I was in some sort of parallel universe.” Had someone broken in? Visible money hadn’t been taken. “It was just a really creepy feeling,” he says. Having suffered a heart attack last year, and also taking medications for anxiety and help with sleep, the 50-year-old felt a “physiological response” to the sense of “violation” and quickly took his medications. “I’m in no immediate danger,” he said to himself. At five in the morning, John was awoken by his phone ringing. A police constable introduced himself and said, “We’re just wondering how you’re doing.” “I’m sleeping,” answered John through a sedated haze, recalling the disjointed dialogue as best he can several months after the incident earlier this year (he’d later obtain the police records). “My mom just died and I just cremated her and buried her. It’s not a really good time.” The constable asked if police officers could drop by. “Someone’s been trying to get ahold of you and they’re quite worried.” The statement seemed strange to John, who’d been fielding calls and emails constantly from his and his mother’s friends for weeks; however, the constable wouldn’t name the caller or explain more. Around 10 am John was awoken again by a firm, loud knocking. He groggily opened the door to two Victoria police officers let in by his building manager. They wanted to talk. Embarrassed by his messy home, John suggested that he’d go to the washroom and then they could all sit in the condominium lounge. The police refused both suggestions, and soon John was standing uncomfortably in the building hallway being interrogated. The officers asked him very personal, informed questions about his mother, his lifestyle, and his health. Did it occur to John to refuse to talk? “No!” answers John. “Because I couldn’t believe it was happening, Rob. I didn’t ask what my rights were...I didn’t ask, ‘Can we talk again after I’ve spoken to my attorney?’ It was like an alien abduction. You’re in the tractor beam, you are powerless, whichever way they tell you to go, you go. I’m not in the habit of being confronted by authorities, and I’m certainly not in the habit of being confrontational back.” “Do you have a plan?” said one officer suddenly. “A plan for what?” asked John. “Have you ever thought about suicide?” “Sure, at different times, who hasn’t?” answered John. “Do you have a plan?” asked the officer again. “Have you tried to cut yourself?” In recounting the story, John imitates his own flabbergasted response. “No! No!” After half an hour, one officer commented, “You still don’t know why we’re here, do you?” John responded, “I have no idea why you’re here!” “Someone’s very concerned that you might harm yourself.” “Who? Who is this person?” asked John. “And why are you here and why aren’t they here, if they care for me so much?” The police admitted that they’d searched John’s home the previous night as part of their investigation to decide if John should be taken to a psychiatric hospital. Currently on disability, John assured them that he was seeing several competent doctors regularly for his various physical and mental conditions, and wasn’t feeling at all like killing himself. The officers eventually seemed satisfied. As they waited for the elevator, one officer answered again that they couldn’t tell John who’d called them; “however,” the officer added, with a finger pointing towards John’s transfixed eyes, “you should be really thankful that you have people in your life that care for you this much.” The elevator opened and the officers departed, never to return. “I was just left reeling,” says John. “I was nearly committed!” There have been significant increases in mental health calls to police in recent years. Plausible explanations include cutbacks to social services, growing homelessness, and unhelpful treatments. However, the biggest factor may be one that no one is discussing. According to rough calculations provided by Victoria Police Department Information Manager Debra Taylor, VicPD gets about two or three mental health calls daily of the kind that prompted police to visit John. About 18 of 20 are coming from people who aren’t physicians. Evidently, in the wake of extensive TV advertising, news coverage, and public education about mental health, people are increasingly calling 911 to report each other’s behaviours. But how do police decide whom to take to hospital? What happens when they do? And what are the true motives of these callers? For months afterwards, John wondered what “friend” of his would deliver him to the brink of incarceration in a psychiatric hospital—none of his friends ever admitted to it. Vince Geisler, on the other hand, knows for certain it was no friend of his who made the call. Dare not sound too upset Vince Geisler was laid off for financial reasons after two years as the South Island field technician for Vancouver’s Navigata Communications. Geisler says he and Navigata’s human resources director never got along. There is disagreement about exactly what got said in their final conference call, but Geisler admits he became angry and hung up. He then went into his home workshop. “I started to do some welding,” says Geisler, “just to kind of focus my attention on something else so I’m not sitting there brooding.” A couple of hours later he decided to go to Hillside mall for lunch but stopped mid-step when he spotted a van and police with guns drawn. According to police records, the street had been cordoned off by about ten officers, including an emergency tactical team with assault rifles. They called Geisler out. He walked over and asked what was going on. Geisler was “calm and cooperative” state police records. Police told Geisler that he was being arrested under Section 28 of the Mental Health Act, slapped handcuffs on him, and loaded him into the van. “I’m like, ‘What in the hell?’” describes Geisler. He says this was when he uttered the first of many clear, firm requests to be allowed to contact a lawyer, which were refused. At the Royal Jubilee Eric Martin psychiatric hospital, a psychiatrist asked Geisler how he was feeling. “I said I’m feeling a little stressed out because I’ve just been laid off and I’ve been basically kidnapped and hauled off here and I’m being denied a lawyer,” recounts Geisler. Geisler learned that Navigata’s HR director had called Victoria police, alleging that Geisler had said, just before hanging up, “I may as well walk off, put a gun in my mouth, and blow my brains out. You’ve ruined me.” For his part, Geisler says he wasn’t feeling suicidal (“For a job? Seriously?” he says.) and believes he may have said, “I feel like I’ve been shot.” His wife of 16 years suggests Vince sometimes uses dramatic language when he’s upset that some might take too literally. “He can be a little volatile that way with his speech,” Carol says. Police had then determined that Geisler, a hunter who also sometimes worked in bear territory, had five registered rifles and shotguns, and a handgun. When Geisler hadn’t answered his door (his workshop was in the basement and he didn’t hear knocking), police had suspected Geisler had barricaded himself. Misinterpretations escalated further in the hospital. Geisler told psychiatrist Diana Ingram that he didn’t understand the police actions. Geisler mentioned his medications for ADHD and chronic pain from an old injury, but forgot to mention an antidepressant (often prescribed off-label for ADHD). Geisler said he wasn’t depressed, and in the circumstances understandably downplayed suggestions he was “under stress.” All of this served to indict Geisler. In her assessment, Ingram described Geisler as being “limited” in his “insight” about police concerns, and “not totally truthful” about his stress. She wrote, “It certainly would appear from his prescription of an antidepressant that he has been on for some time that he has been depressed and which he has denied. Given his lack of honesty and forthrightness, for his safety he is being detained...” Geisler was locked in seclusion and ordered to change into a hospital gown, and his wife would be prevented from seeing him. “It’s kind of like a cell, and there’s nothing in there except for a toilet in the corner and a mat on the floor,” describes Geisler. “If anything would have alleviated the fear and the stress, it is actually having somebody that I can trust, somebody I’m paying to represent my interests, or somebody I love who I know inherently will represent my interests, to talk to, to go between, to find out what’s going on. But I was isolated. Cattle have more rights being transported to the abattoir than a person does under the Mental Health Act. Seriously. It’s ridiculous.” Geisler was officially labelled as “incapable of appreciating the nature of treatment and/or his or her need for it” and, at 5 pm, secu- rity entered Geisler’s room led by a nurse carrying a Dixie cup with pills. Geisler says he was told the drugs would calm his nerves— and if he didn’t take them, they would force him to. He woke up 16 hours later. “I’m looking around, what the hell just happened... For about five minutes, I didn’t even know where I was,” describes Geisler. “I’m groggy, I can barely even stand up.” Geisler says he was still “looped” when another psychiatrist interviewed him that morning. This psychiatrist wrote that Geisler had “no suicidal or homicidal ideation” and “no evidence of a formal thought disorder” and immediately discharged him. “I don’t want to belittle rape, but I felt like I had been mentally raped,” says Geisler. “I felt so violated by the people who are supposed to have my best interests.” Geisler next discovered that police had applied for a court ban on him owning guns. The reason? Because, police argued, Geisler had threatened suicide and been incarcerated in a psychiatric hospital. However, the judge ordered Geisler’s guns returned and even demanded police clarify their records so that the event wouldn’t be a “lifetime millstone” that could precipitate similar miscues again. “I want such an entry [in police records] to very clearly articulate the fact that the court has found that there are no issues related to the public safety or Mr Geisler’s safety in relation to firearms,” the judge wrote. “I want that in very bold and express terms.” It was small vindication for Geisler. He says he now suffers severe anxiety and has not been able to return to working since the incident in 2011. “I had been taught that we live in a country where you have certain inalienable rights. I was shocked at how those rights were just utterly washed away in the blink of an eye.” I ask his wife if she’s seen changes in her husband from the apprehension. “It traumatized him,” says Carol. “There’s still in him a sense of fear in an employment setting, because of the sense of betrayal from the company that he was working for that led to this.” Vince’s complaint against the police officers was dismissed. He then wrote to VicPD’s Police Board, arguing that police should always allow people apprehended under the Mental Health Act (MHA) to retain a lawyer without delay pursuant to Canada’s Charter of Rights. He was told that the Board had asked Chief Jamie Graham to “investigate” the issue. Geisler didn’t know that after Gordon Stewart had complained years before, Graham had been “investigating” the issue for years. Dare not protest Gordon Stewart provides a seminal example of how MHA apprehensions can be easily prompted and steered by anger, fear, gossip, incomplete facts, falsehoods, and highly subjective interpretations— making the MHA a dangerous interpersonal weapon. On May 24, 2001, Stewart parked his truck outside Revenue Canada’s Victoria offices with a banner hanging from it saying, “Canada’s Dishonest Tax Police,” and talked with passers-by about his forthcoming self-published book. Stewart’s tale is long and complex, and twists continue into the present. But basically, in 1990, Revenue Canada determined that Stewart owed about $5000 in taxes for his struggling small arborist company, which he argued he didn’t owe. They repeatedly seized Stewart’s bank account, garnished his wages, and coerced payments. In 1999, however, Revenue Canada issued a “notice of reassessment” and returned to Stewart $11,266.03 they’d leveraged out of him over ten years. It was a lot of money to Stewart, a man generally of modest means with a wife and four children today in their teens, and he decided to further research Revenue Canada’s workings and write a book about his experiences—which soon led to new conflicts. It was most likely Revenue Canada that called police about Stewart while he was promoting his book, even while the police record described Stewart as “rational and calm” and “does not want to hurt anyone or anything, just wants to protest out front of the [Revenue Canada] building.” Revenue Canada definitely called police the next day when Stewart came in to discuss an issue related to his book. “We stood by and the [Revenue Canada] director met with Stewart and all went fine,” stated the police record. On May 29, Stewart went to the courthouse. Concerned that Revenue Canada might try to confiscate key document evidence he’d obtained about their mistakes (they’d seemingly already tried), he wanted to obtain a peace bond to help prevent that from happening. He asked Crown Counsel to call Victoria police, so they could all meet and sort out a bureaucratic runaround that he’d been getting about how that might be done. Stewart says he wasn’t acting abnormally. An unnamed security person actually made the call, but between the police record’s vagueness and sections censored from Stewart’s view, it’s apparent only that this caller requested removal of an “unstable” person and provided “no other information.” When police arrived, both Stewart and police records indicate no conversation took place. Police instantly handcuffed Stewart and ushered him to a waiting van, even though there’s no indication in police records that he’d been threatening or disruptive. Had some muddling of the message occurred passing from Stewart to Crown Counsel, the caller, and then police? Had police decided that if they get three calls about you in a week, odds are you must be crazy, no discussion needed? In any case, after they’d detained him and denied his request to call a lawyer, police described Stewart as becoming “very emotional,” and took him to hospital. His partner of 28 years, Rita Dutsch, had talked with Stewart just an hour earlier, and says the sudden apprehension was a complete shock and utterly perplexing. “Gordon’s a really calm guy. He doesn’t get upset. He’s never had mental health issues his entire life.” No one ever interviewed her, she adds. At the hospital, with Stewart still cut off from contacting counsel or his family and becoming increasingly confused and concerned about what was happening, Dr J. Stempien began his analysis of Stewart’s “agitated” but “in control” status: “Police were called to Revenue Canada, I am not exactly sure why. I can only assume [Stewart] was being somewhat threatening at Revenue Canada.” Starting from these demonstrably false assumptions (“When I said I was at the courthouse, did he think I was delusional?” comments Stewart), Stempien then tried to render judgment. “On one side, the story sounds one of paranoia with Mr Stewart saying Revenue Canada is out to get him, he is worried for the safety of his wife and children, he thinks Revenue Canada is going to do him away,” Stempien wrote. “On the other hand,” Stempien continued, there was clear corroborating evidence that in fact, “Revenue Canada has been out to get [Stewart], they admit to making some mistakes, it sounds like they have been very hard on him financially, and not having good reason to be so.” Stempien then tried to reconcile these conflicting versions of reality: “[Stewart’s] insight seems reasonable up to the point where he says ‘Revenue Canada is going to blow away my wife and children.’” “I never said that,” states Stewart, and it’s not clear from the records if Stempien heard those provocative words, or whether they came to him second or third hand like the other false information. Stempien also didn’t discuss whether “blow away” might be dramatic vernacular for, say, “drive into abject poverty.” So, weighing those provocative words alongside police concern that Stewart “may try to do something,” Stempien decided, “it is best” to hold Stewart longer. Reviewing many such records of Stewart’s apprehension, it’s difficult not to conclude that, regardless of whether or not Stewart really did act “irrationally” at any point, the vastly greater madness was these ad hoc, poorly investigated, haphazardly documented, unfair and hurried processes by which people imposed hugely consequential judgments upon him, and him alone. Duty of care VicPD wouldn’t provide anyone to be interviewed. However, Vancouver Police Department Constable Brian Montague offered helpful insights into police perspectives. Montague is Media Relations Officer with the VPD. Montague says that of the thousands of mental health calls VPD fields annually, “Very few of the calls that we get would be from a physician.” Relatives, co-workers, bosses, friends, landlords, or passing strangers are more likely to be reporting on someone they’ve seen seeming depressed, missing work, acting strangely, or posting worrying comments online. “If we get called, there’s a duty for us to attend,” adds Montague. “Someone will go in every case.” Callers’ identities usually aren’t revealed. This alone is problematic, notes John. From police records, he believes he’s determined who called about him and it was indeed a friend, says John—a friend diagnosed with schizophrenia who frequently calls ambulances for himself. “I cannot believe that they immediately started investigating me rather than investigating the source,” says John. “It can and does have catastrophic impact on people’s lives when the information is not accurate.” John is worried about the impact of the record alone; Canadians have been turned back by US border services based on records revealing that they were once visited by police for mental health reasons. Montague also confirms that police might in some circumstances apprehend someone under the MHA without even conversing, and says police have broad authorities in “exigent circumstances” to circumvent the requirements for search warrants and bypass due process rights to help people. When someone might be suicidal, says Montague, “If I knock on the door, am I going to stop there because there’s no answer? Absolutely not...Under exigent circumstances, I could use as much force as necessary.” Is any vetting of callers done? Am I the first person to ask whether some callers might be overly sensitive, less than altruistic, or even lying with malicious intent to cause fear and trouble or get someone out of the way? “I don’t think it’s a case where it’s never been discussed,” says Montague. “From the police perspective, though, we can’t afford to have those debates, because we do have a duty of care...We still have to go, assess the situation, and determine what’s truly happening here.” How do police decide whom to take to hospital? Montague says Vancouver police get mental health training and try to always bring a psychiatric nurse, but admits, “That’s a tough question to answer because we’re not mental health professionals; we’re police officers...Every situation is different.” Nevertheless, Montague acknowledges that police give more rights to suspected criminals than to people suspected of having mental disorders. I ask if part of the reason is because police assume a psychiatric hospital is a safe, good place, and therefore, even if their assessment proves incorrect, no harm will be done. “I think I agree with you,” replies Montague. “Our officers are under the understanding that if they make that decision to apprehend someone and take them to the hospital, they will get care there, and good care.” Montague adds, though, that one of the reasons Vancouver police have been publicly pushing for more mental health services is so that police could potentially direct people towards other services. “Years ago, the police were the last resort when it came to mental health, and we’re becoming the agency of first resort. And we shouldn’t be,” says Montague. No one from our psychiatric hospital was available for an interview, but VIHA media liaison Sarah Plank provided some written answers. A patient will be informed of their rights upon admission to hospital, wrote Plank, “if the patient is able to understand the information at that time.” A patient will be refused contacts with family only for “clinical or other valid and important reasons.” And a patient will be forcibly drugged right away only based on “prudent yet timely clinical judgment.” Are rights bad for your health? Stewart has been campaigning to change BC’s Mental Health Act to comply with Canada’s Charter. “I agree with detaining a person,” says Stewart. “Taking them in a safe room, now you can let the rest of the process take place: a call to a lawyer, a call to family. Forcing me to remove my clothes and drugging me, that’s not justified.” Geisler agrees. “Unless the person is trying to grab anything he or she can to harm themselves, there’s nothing that’s so expedient about a mental health issue that it requires them to railroad you through the system,” he says. “It’s not like you can just drop dead from being bipolar...I think it’s more convenient [for staff to tranquillize you], but I think that does far more harm than good because it builds mistrust.” BC’s mental health laws were challenged in 1993; however, the plaintiff had a long psychiatric history and was sometimes in dangerous situations. Justice Donald therefore concluded that care would be slowed and harmed if patients had due process rights. “Canadians want to live in a society that helps and protects the mentally ill,” he wrote. However, since then, BC’s committal criteria have expanded significantly, no longer applying only to those in dangerous states. Simultaneously, the definitions of mental disorders have broadened considerably—the US National Institute of Mental Health states 25 percent of our population is now mentally ill at any given time. And people are reporting concerns to police much more often. So it’s unclear how BC judges would regard a case like Stewart’s or Geisler’s today, where gossip gets people incarcerated; where it’s an impossible task to distinguish vague disorders from uncomfortable behaviours and potentially-somewhat-dangerous tendencies; and where psychiatrists can just as likely cause serious harm as healing. It’s precisely in this context, then, that Geisler and Stewart argue all the more strongly that all potential psychiatric patients must have due process rights respected and strictly followed to minimize traumatizing mistakes. More people are coming around to their perspective. The Commission for Public Complaints Against the RCMP in 2008 wrote, “Individuals brought into police custody under the authority of mental health legislation are unquestionably detained or arrested. Accordingly, all such individuals are guaranteed rights under s.10 of the Canadian Charter of Rights and Freedoms. These include...the right to retain and instruct counsel without delay...” A Canadian Department of Justice report states that upholding Charter rights makes good mental health sense, too, because “the traumatic circumstances surrounding an arrest or detention may well serve to exacerbate underlying mental health problems...” Ontario, the Yukon and other provinces have written Charter rights into their mental health laws—most importantly, requiring separate, distinct tests and processes before someone can be deemed incapable of understanding and forcibly drugged. Stewart also wants Victoria police to at least submit written apprehension records to hospitals, to prevent factual mistakes and third-hand accounts. In BC, the RCMP and some municipal police departments already do exactly that. “It’s our policy to provide that information in writing in the form of a report to the doctors so there’s no confusion as to what our observations are, what the information is that we’ve received,” explains Vancouver police’s Montague. “We find that it’s good practice just to make sure that everyone knows what’s going on.” But Stewart has been stonewalled in his efforts to change BC laws or Victoria police practices. After Focus began inquiring, in June of 2013 the Victoria Police Board finally responded to Stewart, stating that allowing MHA detainees to contact lawyers “is a matter of police discretion.” They ignored the question of written reports. The Police Complaints Commission criticized VicPD’s Board for taking three years to respond to Stewart’s policy complaint (Stewart had earlier complained unsuccessfully about the arresting officers), challenged their key arguments, and urged them to “investigate further.” Stewart suspects that VicPD’s reluctance to discuss or change their policies relates to Chief Graham’s other role as a director of the BC Schizophrenia Society—prominent proponents of forced psychiatric treatment. Asked why hospital doctors aren’t demanding written police records to help their clinical assessments, VIHA’s Plank wrote, “We have identified this as a gap and are working to connect with the local police departments to jointly develop a standardized process.” “I don’t want to go public with this story, I don’t want anyone to know my business,” says Stewart. “But I started this [complaint] process in 2001...Are they going to end this any time soon? Are they going to change the policies for other people so that it doesn’t happen to them? It needs to be told, so people can understand that, yes, this can happen in Canada.” But Stewart says he won’t risk releasing his book and taking on Revenue Canada again until our laws change. “Could somebody call police and give them misinformation again?” he says. “I think I would be stupid if I wasn’t concerned.” Rob Wipond has won a Jack Webster Award as well as a Western Canada Magazine Award for his writing in Focus. After writing this feature, he says he’s worried we’re descending into psychocracy.
  7. November 2013 Secret police chief association records provoke serious questions about lack of police oversight in this province. AS I READ THROUGH HUNDREDS OF PAGES of records from two BC associations of chiefs of police, I discovered that a letter I had sent to the West Vancouver Police Department Chief Constable had been turned over to all of Canada’s major banks, Canada Border Services, CSIS, and the US Secret Service. This certainly made a mockery of my privacy rights. Yet I realized that much more than privacy was at stake. These previously secret records—a drop from a much vaster pool—painted a worrying picture of unchecked police powers. A catch up: Last year, I set out to learn more about the BC Association of Chiefs of Police (BCACP) and BC Association of Municipal Chiefs of Police (BCAMCP), because these groups have had tremendous influence on public opinion and provincial justice policies for decades, and yet there’s virtually no publicly available information about them. My quest became a saga (see Focus October 2012, May 2013, July/August 2013). The chiefs weren’t talkative, and claimed they weren’t subject to the Freedom of Information and Protection of Privacy Act (FIPPA) covering public bodies (including governing bodies of most professional associations), because their associations were actually “private” groups of “volunteer” participants. I knew that both associations did a lot of lobbying of government officials, so if they were private groups, then I reasoned that at least some of their activities should be tracked in the BC Lobbyist Registry. However, the chiefs also claimed that they weren’t subject to the BC Lobbyists Registration Act because their work in the associations was actually being done in their official capacities as public employees. Pardon? BC Civil Liberties Association policy director Micheal Vonn not-so-sardonically summarized the chiefs’ shifting, self-contradicting descriptions of their associations succinctly: “We’re going to use a characterization that may or may not match reality as a shield against, well, whatever we decide we need to be shielded against.” Were they hiding something? During mediation with the Office of the Information and Privacy Commissioner (OIPC), I finally obtained some basic records from Victoria, Saanich, Central Saanich and West Vancouver police departments. It was a scattershot collection based mostly on whatever each respective chief had kept on file from the associations at their departments, but together, I got meeting minutes from 2008 to early 2013. (I also got records from the BC Ministry of Justice, but 30 years of these associations’ archives are still missing-in-action.) Reviewing the documents, I suddenly understood why our police leadership didn’t want association records publicly released. The associations are actually fully hybrid public-private entities—and that’s dubious under all applicable laws. Public work done in private BCAMCP members meet monthly and include chiefs and deputy chiefs of BC’s municipal police departments. The BCACP membership meets three times a year for two days, and has many ongoing subcommittees. It includes all BCAMCP members plus every BC RCMP detachment commander. There are also non-voting “associate members,” including seven senior directors from BC’s Ministry of Justice, and representatives from Canada Border Services, the Civil Forfeiture Office, the US Secret Service, CSIS, and security divisions of about 40 other public agencies. Security representatives from six of Canada’s major banks and the Canadian Bankers Association are also associate members. Association agendas are packed. The (heavily censored) minutes indicate discussions take place about mass surveillance and undercover programs, online videos of police brutality, medical marijuana (rarely mentioned without organized crime being mentioned) and Occupy events. Discussions also occur about salvaged vehicles, metal theft, motorcycle noise, and the legal definition of winter tires—basically, issues so mundane that the agenda alone suggests no police officer in his right mind is attending as a “volunteer.” They’re doing a lot of official police work; often, the associations function as de facto governing bodies for policing in the province. Clayton Pecknold, assistant deputy minister of Justice and director of Police Services, provides comprehensive updates from government at nearly every meeting. The provincial government seems to use the associations as its main conduits for communicating and consulting with police forces, and regularly asks the associations to appoint representatives to important governing boards for the Combined Forces Special Enforcement Unit, Criminal Intelligence Service Canada, or the Police Records Information Management Environment. The BCAMCP led the hiring process for a provincial witness protection coordinator. Both associations have represented British Columbia’s police agencies as signatories to important Memorandums of Understanding or protocol agreements with the chief coroner, chief electoral officer, police complaint commissioner, and BC Assembly of First Nations. The associations also conceive and coordinate many collaborative policing-related initiatives. For example, the BCACP coordinated 2012’s safe driving campaigns involving the Province, all BC police agencies, and ICBC. So in summary, the records show the exact kind of policing governance activities we’d expect our police leadership to be doing on the public’s behalf. There’s just one problem: This is a private club, remember? These associations don’t report to any public body. They aren’t subject to our freedom of information laws—you’re learning about these major police undertakings only because some chiefs left association records on police department computers, assuming that they wouldn’t be subject to FIPPA (a record-keeping habit they could soon stop). We’re lucky our elected representatives and senior public servants are even allowed to participate: The associations have their own bylaws for making decisions, and the police officer members dictate who can attend meetings through strict criteria and votes. “This sounds like high-level management meetings,” commented BC Civil Liberties Association’s Vonn. “If this is a private association, we have to ask ourselves how we feel about members of our government and our policing forces having ostensibly private meetings with the US Secret Service…A meeting that is in fact off the record.” We must also ask ourselves how we feel about our police leaders doing double-duty as highly politicized lobby groups. Private lobbying at public expense The associations lobby for tougher drug laws and broader surveillance and, most significantly, have direct access to ministers and senior bureaucrats without anyone tracking it. This secret lobbying seems very effective. In April 2009, Victoria Police Chief Jamie Graham brought a proposal to both associations for banning cell phones while driving; by October, it was law in BC. In November 2011, Abbotsford Police Chief Bob Rich distributed his “Proposal for a BC Crime Reduction Initiative.” Eight months later, Geoffrey Cowper’s justice system review for the government recommended that the BCACP lead crime reduction planning. Through 2011-12 meetings, West Vancouver Chief Lepine, Graham, and Pecknold featured prominently during discussions about trying to improve public opinion of the BC Liberals’ roadside prohibition laws, which were being challenged in courts. Amidst many redactions, the minutes include remarks like: “The media put their own spin on it…Lepine advised that he hopes it is not being interpreted that police are locking horns with the Minister…Graham is still a little nervous about all the civil actions going on and asked the committee to tell your members that the more we get the better the statute looks; stats are impressive.” Was Graham encouraging his fellow officers to “get” more statistics, or to get more roadside prohibition-related arrests to generate those statistics? In any case, it’s sometimes chilling to read how, under cover of these secret associations, our police leaders slide between their public responsibilities as powerful, impartial enforcers of the law, and their private roles as biased political activists, until it’s difficult to distinguish between the two. It looks even more concerning when we delve into the associations’ finances and administration. Their funding comes mainly from their members’ public employers, but the Canadian Bankers Association (CBA) has also donated regularly to the BCACP. Last year, the CBA donated $10,000, one-fifth of the BCACP’s budget. The BCACP’s February 2012 minutes thank the CBA and also report that, “The financial institutions are forming good partnerships with the robbery investigators.” “The juxtaposition really highlights how muddy and compromised the scenario is,” said Vonn. Indeed, while it’s easy to imagine reasonable scenarios where police, in the course of their public duties, would meet with bank representatives to discuss common concerns such as robberies, should the same police officers be taking $10,000 private gifts from those banking representatives at the very same meetings? It’s difficult to imagine a situation that could more blatantly give off the appearance of conflict of interest—or that’s more rife with potential conflicts if such police fundraising practices increase out of sight of the public. Of course, if these associations are private groups, they’re allowed to accept secret, private donations. On the other hand, if they’re private groups, how come police agency staff do their work? “A special thanks to Insp. Steve Ing from Victoria PD for his assistance,” read the June 2012 BCACP minutes. Ing, a VicPD lawyer, had helped with the BCACP’s incorporation process. In December 2012, RCMP lawyer Kyle Friesen came to a BCAMCP meeting to discuss my FOI requests for the associations’ minutes. And for years, executive assistants from the RCMP, Port Moody and Victoria police departments have been taking association minutes. “It would be one thing to say, we really did have counsel who normally work for the police department appear pro bono at our private association. That’s not too far a stretch to suggest that it’s possible,” said Vonn. “That our secretary appears pro bono to take the minutes, is just beyond [believable].” After I described some of the associations’ other public governance activities, private lobbying, and moving of confidential policing information between them, Vonn observed, “It’s not impossible that there are places of blurry overlap; clearly, the private sector meets with the public sector. But it would seem that this particular construct, this overlap, is not visited upon [the associations]. They live there… And it would appear that anywhere you slice across these vectors you find a mixing that is impermissible or at least problematic.” All exemptions available, no disclosures required Vincent Gogolek, director of the BC Freedom of Information and Privacy Association, examined some of the associations’ minutes through the lens of information access laws, and seemed as perturbed as Vonn. Many sections of the minutes were heavily censored using FIPPA’s law enforcement exemptions. Occasionally, the minutes also include mentions of going “in camera,” away from the associate members. All of which would seem reasonable if these were official police working records, pointed out Gogolek—but these are allegedly the records of private groups of volunteers. “That’s where it gets a little confusing for me,” said Gogolek. “What are they doing? Who are they actually representing?…They’re doing a lot of things basically related to their functions as senior public servants. If they’re going to say they’re a totally private body, well then, can we look forward to the Association of Deputy Ministers getting together to talk about senior government policy? The Association of City Clerks? Where does it stop? Suddenly these are all being created and they’re all getting together having a grand old time outside the scope of [FIPPA]?” The associations actually also intervene in processes that are supposed to be handled confidentially within police departments. For example, through 2008-2010, an ongoing Vancouver Sun FOI request for information about police salaries was discussed by the BCAMCP. At first, different police departments were releasing data as their information managers deemed appropriate. But the BCAMCP began coordinating the departments, hired an outside expert to go to legal battle and, according to their minutes, “did all they could to refuse to provide this information.” They also decided, against the protests of some chiefs, to make the municipal police departments pay for the BCAMCP’s lawyer. “[The BCAMCP] seem to be putting themselves in the position of the heads of a public body,” said Gogolek. “The ambiguity is what’s concerning. Who are they? Who are they working for? Because a public body, whoever the head [or information manager] of the public body is, is supposed to determine what gets out. Not some group meeting offsite.” My own FOI request got dragged across similar legal boundaries. My letter to Chief Peter Lepine (BCACP president at the time) at the West Vancouver Police Department was passed out in a BCACP meeting agenda—so now CSIS and the US Secret Service have it. Yet Gogolek pointed out that both public and private bodies have laws regulating how people’s personal information can be shared. “You can’t go from being, ‘Oh, I’m the public body,’ and then suddenly you walk into another room and say, ‘Oh, now I’m part of a private association and we’re not the public body anymore, but by the way I have this information that I got from my role as a public servant and let’s all take a look at it.’” Bypassing police boards Victoria Mayor Dean Fortin is Chair of the Victoria Police Board, responsible for overseeing the chief. I asked him how often the board discusses the BCACP and BCAMCP. Not much, said Fortin. “[Chief Graham] highlights the various conferences, committees he goes to, community meetings, those sorts of things; they are part of his monthly update report.” Fortin said he’d read my writings on the police chief associations. So I asked if the Victoria Police Board is aware of the many ways in which the BCACP and BCAMCP are acting as public-private hybrid bodies, and of how these associations are usurping VicPD staff time. “Do we have a general awareness of what they’re doing? Yes,” answered Fortin. “Am I aware of any specifics of that? No. Am I concerned? Again, no. These are efforts by our police chief, as part of the association of other police chiefs, to accomplish the strategic goals of the City of Victoria.” It’s not clear that’s what’s going on, though. At association meetings, after decisions by majority vote, the chiefs sometimes describe “encouraging” all police departments to follow BCAMCP or BCACP directives, and at times use stronger language like “ensure compliance.” And they seem aware they’re sometimes walking dubious legal lines. In October of 2008, the BCAMCP was discussing certain possible changes to police practices, and then the minutes note that Abbotsford Chief Rich “used this as an example where changes in policies need to be approved by the Board that it affects.” Meanwhile, countless lobby letters have been sent to Ministers by both associations pushing political positions that were never explicitly approved by the chiefs’ respective police boards. I described the conflict of interest surrounding the CBA donation. Fortin didn’t realize the BCACP had a wide variety of associate members, but then commented that police should be liaising with banks about common security concerns one way or another. “Those are important conversations to have,” he said. “You’re asking me, is this the best way? My quick answer is, I don’t know. I do hear your concern.” He pointed to VicPD’s donation policy, which requires avoiding any appearance of possible conflict. “There should be some general rules around donations and there should be policy around that,” Fortin said. The associations have no such policies. I suggested to Vonn that municipal police boards may not feel bothered by what the associations are doing. “It’s our experience that police boards are very ill-equipped to understand their obligations as board members,” said Vonn. “We do not do the kind of education and training of police board members that is required for them to do their job. This has been a constant concern about a part of the police oversight mechanism that is broken.” And regardless of how board members might “feel,” Vonn added, “We have rules that must be complied with.” She described the laws distinguishing public and private bodies and their respective responsibilities, and the applicable regulations governing police transparency. “They’re black-letter law. We have statutes; there are requirements.” Coup de police All of this wouldn’t seem nearly as nefarious if our police leadership were openly acknowledging and discussing these issues. But they’ve been refusing to answer questions. They’ve been making every legal and quasi-legal effort to keep their activities hidden from the public, and to maintain these unaccountable powers. After issuing generic statements, the BC Ministry of Justice also refused to answer questions. I discovered that ADM Pecknold, the top person in the Ministry who’d be able to speak knowledgeably, was previously deputy chief of Central Saanich Police and in 2010 BCACP president. At that point, I felt like British Columbia’s public policing system had undergone a coup d’état, covertly orchestrated by a private group of senior police officers. Our ever-rotating justice ministers probably had little understanding. Who could wrest back public control? The BC Civil Liberties Association wrote to OIPC Commissioner and Lobbyist Registrar Elizabeth Denham, seeking resolution to the “public or private” question. “There has to be an honest adjudication of the contradictory decisions that have been rendered on the issue of privacy and access legislation on the one hand, and the lobbying registration on the other,” said Vonn. “We currently have a situation that is entirely untenable, where [the associations are] described as two different things under two different decisions.” Corrective action seems simple. While it’s understandable that BC police forces and other security representatives would sometimes meet and collaborate as part of their public duties, and it’s legal for police chiefs to form private groups to advocate and lobby, the coalescing of these two functions in one entity creates a myriad of problems surrounding governance, accountability, lobbying, conflicts of interest, use of public resources, and transparency of public policing. So it seems critical that the BC Ministry of Justice structure and run an interagency collaboration and governing body for BC’s balkanized police forces that’s publicly transparent and accountable. Meanwhile, the police chief associations must become truly independent, private entities, register as lobby groups, and be made subject to FIPPA like most other BC professional associations. The provincial government has to take informed leadership. But Andrew Wilkinson, the Minister in charge of FIPPA, has also been avoiding my questions. And if the Ministry of Justice proves definitively to be under the control of the police chief associations, rather than vice versa, what then? Rob Wipond has won a Jack Webster Award as well as a Western Canada Magazine Award for his writing in Focus. He will be posting the records he obtained for the above article at www.robwipond.com.
  8. May 2013 The Office of the Information and Privacy Commissioner and the Registrar of Lobbyists are hot on their association’s trail. But a former BC police chief and solicitor general doubts they’ll ever be caught. THERE’S ONE THING THE POLICE TELL YOU never to do when they want to question you, right? Run. Running makes you look even more suspicious. So why do British Columbia’s chiefs of police keep running from me? Fortunately, I’ve gained some high-profile help in this now year-long chase. I first began looking last summer into the activities of the BC Association of Chiefs of Police (BCACP), which includes all chiefs in the province plus RCMP and provincial government representatives, and the smaller sub-organization, the BC Association of Municipal Chiefs of Police (BCAMCP). It’s a complicated story but, basically, it seemed impossible to obtain virtually any information about these organizations, even though they play prominent roles in BC law enforcement (see “Are BC Police Chiefs Evading the Law?” October 2012). They’ve publicly advocated and helped craft legislation around issues as diverse as drug laws, expanding police powers, and mass surveillance programs, but my attempts to better understand these associations’ activities became like a game of mental whack-a-mole: wherever I reached, all document records disappeared into a conceptual vortex. Victoria Police Chief Jamie Graham, president of the BCAMCP and senior executive with the BCACP, didn’t speak with me. West Vancouver Police Chief Peter Lepine, then president of the BCACP, was friendly and professional, but not particularly forthcoming on key issues. The business of the associations was seemingly being performed by police staff on the public dime and time, but when I submitted FOI requests, both associations claimed they were not subject to BC’s freedom of information legislation covering public bodies because the associations were actually just “private” groups. When I submitted FOI requests directly to Victoria, Saanich, Central Saanich and West Vancouver municipal police departments, all four departments stated their BCACP and BCAMCP records were not theirs to release because the records were actually the legal property of the associations. Yet, when I went looking for incorporation records, I discovered neither of these associations legally existed. And I also found no records of the associations’ existence or activities in BC’s Lobbyist Registry, even though our police chiefs were certainly doing more political lobbying than many other similar, appropriately-registered and tracked lobby groups like the professional associations of Massage Therapists, Aboriginal Friendship Centres, or Guide Outfitters. On and on the chase went—I, of course, becoming ever more suspicious. So I submitted complaints to both the Office of the Information and Privacy Commissioner (OIPC) and the Registrar of Lobbyists. (The Commissioner is also officially the Registrar, but the two offices operate separately.) As I awaited replies, I gathered more dark hints that much of the governance of policing and development of law enforcement legislation in BC might be running through these associations, with the deliberate intent of hiding it all from public transparency and accountability. One knowledgeable person who was willing to talk on the record was former West Vancouver Police Chief and former BC Solicitor General Kash Heed. “I can imagine what you’re going through,” said Heed, when I expressed my frustrations with trying to learn about the associations. “I can tell you right now, you’ll never get the information that you need.” Heed, long a strong proponent for unified regional police forces in Metro Vancouver and the Capital Region, and for stronger transparency and accountability for the RCMP in BC, sat on both the BCACP and BCAMCP. Heed became convinced the associations were in large part tools to help protect police fiefdoms throughout BC from exactly those kinds of changes. “It’s the old boys culture in its strongest sense. Not much more to say if you understand that this old boys culture is part of the reason why we have such a balkanized police system here in British Columbia.” Heed added that, “There were times where I spoke out on various issues and [the BCACP] did not like that…They were very upset.” And having sat on the other side of the table as solicitor general, Heed said he has no doubt that the BCACP is primarily a political lobby group. “That’s what it actually is. They lobby for specific changes.” Yet Heed confirmed that both self-described “private” associations’ meetings, activities, public relations, and lobbying are being performed by chiefs and police staff during regular working hours. “If it’s a private entity, that entity is being created and funded by the public taxpayer,” said Heed. It sounded like damning evidence to me; how would the OIPC and Lobbyist Registrar see it? The OIPC found no Association of Chiefs of Police listed in Schedule 3 of the BC Freedom of Information and Protection of Privacy Act, and so were not empowered even to consider my complaint about the associations’ refusals to proffer records. This, even though Schedule 3 empowers us to submit FOIs to virtually every other professional association doing work of even tenuous public interest, from associations of Music Teachers and General Accountants to Land Surveyors. On the other hand, even if our elected representatives had wanted to include these police chief associations in Schedule 3, they couldn’t have—because neither association legally exists. The OIPC, however, did begin to investigate my requests for records from the four police departments. The police departments, though, maintained to the OIPC that all their BCACP and BCAMCP records were actually legally “in the custody” and control of these legally non-existent associations, and refused to turn any of the records over. As arguments went back and forth through the OIPC, the police departments eventually offered a compromise: they’d negotiate giving me some documents but they would never admit they were legally required to give them to me, so they could cut off the flow at any time. I didn’t like the sound of where that was heading. With no solution emerging, a full-scale OIPC legal inquiry was the only remaining option. The associations and police departments would bring their platoon of publicly-funded legal experts, and on the other side would be…well, honestly, just me. It seemed hopeless. But on October 30, Deputy Registrar of Lobbyists Mary Carlson sent me an email. “This is to acknowledge receipt of your complaint under the BC Lobbyists Registration Act (LRA) that the Association of Chiefs of Police may be engaging in activities that qualify as lobbying and have not registered as required by the LRA,” wrote Carlson. “In response to your complaint, we have commenced an investigation…” This was exciting. My intent when complaining to the two offices simultaneously was to try to corner the associations. I reasoned that, if they were finally going to claim definitively under official investigation that the police chief associations were “private” organizations, then they would have to become registered and have their activities tracked as political lobbyists. This would also be tantamount to confessing that they’d been breaking the lobbyist laws and improperly funnelling taxpayer money into private political lobbying for years. On the other hand, if they were going to claim that they were simply public servants properly doing their normal public service as our police chiefs, then that would essentially be admitting that the public had the right to access their records. Cornered, the mole was going to have to choose one of those two holes…and then… Bang. It worked. All of a sudden, on behalf of all four police departments, Victoria Police Department Information Manager Debra Taylor delivered a long list of all the records pertaining to the BCACP and BCAMCP that they had and promised to start processing them for me. I was elated. Meanwhile, in November the BCACP applied to incorporate itself as an independent legal entity under the Society Act, like other above-board police chief associations across Canada. That didn’t clear the BCACP of any past improper use of public funds or unregistered lobbying they might have done, but at least they were now coming clean and going straight. This was all good. Equally encouragingly, some of our chiefs actually started being more careful about distinguishing their private lobbying from their roles as impartial public servants. For example, though West Vancouver Chief Lepine and the BCACP have previously lobbied for tough “war-on-drugs” laws, the Vancouver Sun quoted Lepine in September declining even to comment on a BC citizens’ petition to decriminalize marijuana. “At the end of the day, from a policing perspective, we’re tasked with enforcing the laws as the laws are written,” Lepine said—entirely appropriately. How much more could I have asked for? But something started to niggle at me. As I looked more closely at the list of documents the police departments were preparing to give me, I noticed there were almost no records from before 2008, yet these associations had existed for at least 30 years. Surely there were older records, an association library or archive, perhaps in hard copies in some file boxes? Neither association had an office, so those files presumably would have resided at the police station of some association official. For that very reason, I’d deliberately targeted my FOI requests to the police departments that were home to the associations’ current top officials. So where were those records? Could it be that, during the months of wrangling after I’d submitted my requests in July, someone had secretly absconded with the bulk of BCACP and BCAMCP records archives and moved them from those police stations? I asked VicPD’s Taylor if that could have happened, and she wrote back that the four police departments “did not locate a main ‘archive’ or ‘library’ of documents for the BCAMCP or the BCACP.” Of course, that was merely a confirmation that the archive was at present gone; it did not answer my question about whether the older files had been there when I’d originally submitted my request. I submitted the same question again directly to Chief Lepine and West Vancouver police information officer Corporal T. Nelson. Nelson wrote back that West Vancouver PD did not have “custody” or control of such an archive. But of course, back in the beginning of this whack-a-mole game, Nelson had also stated their police department did not officially have the custody or control of any BCACP or BCAMCP records at all. So were they simply once again creatively interpreting the meaning of these legal terms? That dang mole. I felt like giving up. Nevertheless, I persisted. For his part, I get the impression Kash Heed doesn’t share the intensity of my worry about what these associations are up to—though Heed admits he avoided attending their meetings as much as possible. He does believe BCACP lobbying helps preserve a “chaotic“ system of police governance and accountability in BC. Heed singles out the RCMP, whose voting reps seemingly dominate the BCACP according to its now-public constitution, for wanting to keep things that way. “I think that’s intentional,” says Heed. “I don’t think [the RCMP] want the people out there really to know what they’re all about and what they do and how they do it… They’ve been doing it for so many years and they’ve managed to get away with it, and they continue to do it.” It’s certainly clear I’m not the only one asking questions and still coming up confused. There are Hansard records of our elected politicians expressing bafflement as to whom is being represented when a police department employee makes an official submission proposing changes to BC’s freedom of information laws, apparently on behalf of the BCAMCP, yet on police department letterhead. Last fall, Geoffrey Cowper’s report to the province on reforming BC’s criminal justice system recommended the BCACP direct a provincial crime reduction strategy—while Cowper showed no recognition that the BCACP is just a private lobby group. Looking back, how many of us are sure if we were hearing the opinions of our public servants or of private, professional political lobbyists when our police chiefs spoke out in defence of roadside prohibition legislation, tasers, licence plate surveillance, and giving police the powers of crown prosecutors? Tellingly, even this April, Office of the Police Complaints Commissioner adjudicator Ben Casson criticized VicPD Chief Jamie Graham and his Deputy Chief John Ducker for making inflammatory public comments about a hearing concerning two VicPD officers. Casson then appealed to the BCACP. “BC Chiefs would think the same way, hopefully, [and] issue some guidance to their chiefs...” So even an ex-judge and policing expert like Casson apparently didn’t realize he was in effect asking a murky, untransparent, unaccountable private group to rein in seemingly unaccountable police brass. Heed suggests it’s municipal police boards that should be more vigilant about such issues, especially with respect to their police chiefs and police staff spending on-duty, publicly-funded time working for these private associations. “Some of the problems are, Rob, that the police boards are not doing anything about it,” says Heed. “Some of the members of the boards, I think, are confused about what their roles are and how much power they have over their chiefs of police.” Hopefully our police boards, along with the rest of us, will soon gain a slightly clearer picture of what these private associations have been doing—at least since 2008. And the Lobbyist Registrar will almost certainly issue a public report, if not penalties; their investigation has stretched into months. As for that fabled archive, West Vancouver PD’s Nelson finally wrote back again: “I asked some specific questions and can advise there is a collection of records pertaining to the BC Association of Chiefs of Police which contain records made prior to 2008.” That archive, it turns out, is sitting at the RCMP’s Surrey headquarters—hence under federal jurisdiction and far out of reach of our province’s much stricter enforcement of information access laws. Besides, contends RCMP Inspector and new BCACP President Brad Haugli to me in an email, “the BCACP archives itself is not within the custody or control of the RCMP.” Anyone got a bigger hammer? Rob Wipond spent two years submitting information requests which ultimately helped prompt the Privacy Commissioner to investigate and declare much of BC polices’ licence plate surveillance program illegal.
  9. February 2013 A new book provides a shocking analysis of environmental destruction and human rights abuses committed by Canadian mining companies abroad—and how we help them do it. CHANDU CLAVER WAS BORN IN THE SMALL TOWN of Tabuk in the mountainous Cordillera region of the Philippines, near a large copper mine at various times partially owned by Canadian interests. This is where he became a surgeon, got married, and wanted to raise his family. He never planned on being a refugee in Victoria. Throughout the 1980s and 90s, Claver was running a one-man surgical hospital in Tabuk, while every two months he’d spend a couple of weeks voluntarily bringing health care to remote indigenous villages of the area. Claver himself is indigenous, of the Igorot tribes of the Cordillera. But he was also the son of a loyal mining company doctor, so it was during these sojourns, he says, that his “consciousness” first began developing into that of an activist for human rights. “I started to see the effects of mining,” says Claver, whose calm, warm demeanour belies the intensity of his feelings. “When you’re working in situations like that, you get to see the poverty, you get to see the oppression, you get to see the state militarization, you get to see the effect on the people. You start to see that people are getting sick because of that, because of the poverty that they are forced to undergo because their lands are being denied them.” To those familiar with British Columbia aboriginal rights issues, Claver’s explanation of the fundamentally conflicting views in the Philippines is recognizable. “They see that everything around them is connected,” says Claver, who shifts between using “we” or “they” in relation to indigenous peoples. “So the land, the sea, the water, the skies, the minerals, the trees, animals, fauna, all these are connected and comprehensively linked to support life, including people. So they cannot understand how you can actually compartmentalize things, like mine out the minerals without affecting the rest…And when you start saying that this land is for a mining company and nobody else, that’s not something we can grasp. And that’s where it all starts; that’s where the violations of rights start.” As Tabuk grew and surgeon specialists began arriving, Claver turned to general medical practice. He also increased his volunteering as a leader with the Cordillera Peoples Alliance (cpaphils.org), a multi-sectoral organization of 150 grassroots groups that advocate for indigenous people’s rights. The organization “became very influential and strong,” says Claver. But in the late 90s, new, even more permissive mining and land expropriation laws were passed. There was also a push towards “free trade” and “globalization,” and, after 9/11, a tightening relationship between the Filipino and US governments. All these factors led to dramatically worsening conditions and tensions around the country. The Philippine military, says Claver, even set up a specialized “Investment Defense Force” to help protect mining companies from the growing protest movements. Worse, “extrajudicial” assassinations became rampant: Since 2001, over 1,500 activists and members of social justice organizations have been killed or “disappeared,” says Claver. None of the attackers have ever been convicted, but, according to Claver, a damning secret document obtained by Philippine media revealed that military intelligence seemed to have begun regarding many legitimate political and non-profit organizations as merely branches of known terrorist and armed rebel groups. One day, without warning, Dr Chandu Claver became a target for assassination. It was July 31, 2006. “It was a Monday, early morning,” says Claver. “I’d just dropped off my youngest daughter at her school.” He manoeuvred away from the busy curb in the heart of Tabuk and began to head towards the school of his other girls, aged 7 and 11. “As I was making a turn, a van cut me off,” says Claver. Next, two people stepped out of the van, raised automatic rifles and unloaded 38 rounds into the Claver family car. One daughter was never hit. Claver’s other daughter took a bullet to the head but, miraculously, it only scraped her scalp. Claver himself took three bullets in the shoulder and one in his abdomen. Claver’s wife of 15 years, Alice, took seven bullets near her heart, and would die on the operating table. “[The gunmen] got back into the van and escaped,” he says. Though police were on the scene almost immediately from the nearby police station, adds Claver, “the [gunmen’s] van actually passed through three military and police checkpoints and never got stopped.” For the next six months, Claver only visited his children surreptitiously and continued to speak out for indigenous rights and for justice for his wife and other victims of extrajudicial killings. But when a medical colleague relayed to Claver a warning about another planned attack on Claver and his children, from a patient who was a sympathetic soldier, Claver decided he couldn’t stay. He and his three daughters landed in Canada in 2007. Claver felt Canada was a safer place to continue to speak out, although the US would have recognized his medical credentials. “My objectives were twofold: to raise my kids and to continue working for justice,” explains Claver. “Nowhere in those goals said that I have to be a doctor.” So he’s found a small, affordable rental home and employment as a caregiver and support worker at a Victoria shelter. And he’s begun liaising with church and non-profit groups on behalf of the Victoria Philippine Support Group and Cordillera Peoples Alliance as he tries to raise public awareness about the impacts of mining. Claver has also been learning about his new homeland—how destructive a role Canadian mining companies and the Canadian government have been playing in BC, in the Philippines, and around the world, and how few Canadians realize the extent of it. So educating Canadians, says Claver, has become an important part of the process towards getting justice for his wife. A powerful new book may help his efforts. Daring to ask why According to the Canadian federal Department of Foreign Affairs and International Trade, 75 percent of the world’s mining companies are headquartered in Canada. It’s an astonishing statistic that obviously raises the question, “Why?” Two Quebec-based academic researchers, Alain Deneault and William Sacher, set out to answer that question in a searing and disturbing new book: Imperial Canada Inc.–Legal Haven of Choice for the World’s Mining Industries. Along the way, the authors examine a parallel troubling question, “Why do so few Canadians know?” Tellingly, two major Canadian mining corporations have been trying to prevent Canadians from ever seeing this book. In early 2010, tiny Vancouver publisher Talonbooks announced on its website that Imperial Canada Inc. was being developed with Deneault and other collaborators. Within days, lawyers for the world’s biggest gold mining company, Canadian transnational Barrick, faxed Talonbooks a “demand” for copies of any parts of the manuscript-in-progress that made “direct or indirect reference to Barrick, Sutton Resources Ltd, or to any of their past or present subsidiaries, affiliates, directors or officers.” Barrick also sent the letter to all the authors, collaborators and translators, and threatened to sue everyone if they didn’t like what they saw. Many promptly quit the project. Talonbooks announced Imperial Canada Inc. was “cancelled.” “We were scared and we were intimidated,” explains Talonbooks President Kevin Williams. “We were also somewhat outraged by the fact, ‘We haven’t even published the book!’ It felt like an infringement of our civil liberties and our ability to have free speech.” It wasn’t a complete surprise, though. Barrick had similarly threatened lawsuits in 2008 ahead of publication of Deneault and Sacher’s previous book about Canadian companies in Africa, Noir Canada. Small Quebec publisher Écosociété pushed ahead and, even though less than a couple hundred copies of the French academic book were ever sold, Barrick sued for $6 million and another Canadian mining giant, Banro, sued for $5 million. From 2008 through 2010, public concern about these threats and developing legal cases spread. Montreal independent daily Le Devoir reported the story. Academics and lawyers posted a petition at freespeechatrisk.ca, where Noam Chomsky and Naomi Klein expressed support. Some alternative media covered the story, including The Tyee, Watershed Sentinel, The Walrus and CBC radio. Most observers criticized the legal actions as “SLAPPs”—Strategic Lawsuits Against Public Participation. SLAPPs are typically libel lawsuits that corporations use to shut down public criticism by dragging shoestring-budget watchdog groups or small publishers through expensive, time-consuming court processes. Many US states and European countries have crafted anti-SLAPP laws to allow judges to more quickly dismiss cases where libel laws are obviously being abused in this way. Canadian governments, however, have been reluctant to pass anti-SLAPP laws. Though the Banro lawsuit continues, an out-of-court settlement was reached with Barrick that Noir Canada would be withdrawn from print. “It was a way for Écosociété and for ourselves to continue the fight in another forum than the legal one,” says Deneault on the phone from Montreal, explaining that he’d rather see the evidence he’s gathered debated freely in public than at mammoth expense in a small courtroom between lawyers. He says the years he’s spent battling has taught him how much the Canadian court system is corrupted by money: “Do you have the money to continue? No? Well, then you have to settle with the conditions of the party that has money to continue.” Continuing, Deneault says, “It’s totally undemocratic. Taxpayers are subsidizing a structure that’s only accessible to wealthy people. It’s not a question of rights, it’s a question of means.” Talonbooks never did show Barrick Imperial Canada Inc. However, Williams says the book’s content was refocused more on structural, overarching problems than on specific cases and companies. “The book was extremely carefully written,” says Williams. “But aside from the fact that it took us two years longer than we would have liked, and we had to pay for the cost of a legal review, in the end we got a very good book…It’s allowing people to have a look at this issue and consider perhaps what we need to do.” And though mainstream media have so far ignored it, Imperial Canada Inc. is provocative. It’s essentially a 189-page argument, buttressed comprehensively with reference footnotes, that provides an overview of reams of damning research about Canada’s pre-eminent role in mining’s devastating global impacts on both the environment and human rights. Canada the haven Deneault says he first became interested in the mining industry while studying offshore tax havens. “A haven is a country that allows a wealthy individual, corporation or a bank somewhere in the world to circumvent some kind of constraints,” says Deneault. “There are about 80 or 90 havens in the world. And why is it so? They all have their specific vocation.” Havens like the Cayman Islands, Jamaica or Liechtenstein each offer specialized legal bypasses, he explains, such as 100 percent tax-free revenues, non-existent minimum-wage laws, or ship registration without safety standards. And Canada, Deneault discovered, has become the top haven for transnational mining companies. Deneault points to the company running the infamous Katanga mine. “It’s a Belgian corporation in the province of Katanga in the Congo. [The senior officers] are all Belgian,” says Deneault. “They registered their company in Toronto. Why? Why did a Belgian company register itself in Toronto to operate in Southern Congo?” Indeed, the significant, dubious involvement of Canadian-based mining companies and the Canadian government in the war-ravaged Congo will be one of the more disconcerting revelations in the book for most Canadians. Deneault writes about an “avalanche of public documents,” including UN reports, that explicitly criticize Canadian citizens and companies for their roles in the Congo war. But for Deneault, that was only the beginning. “We started to discover all sorts of cases, in a lot of countries, involving a lot of corporations,” he says. “And [they were] cases about very important issues. Not about anthropological civilities, but corruption, bribery, arms dealing, collusion with warlords or rebels, partnerships with dictatorships or kleptocrats, and so on.” And these came from many different sources, he says, including UN reports, parliamentary commissions, independent documentaries, academic studies, and organizations such as Mining Watch Canada, Amnesty International and Global Witness. Another UN report points to abuses of indigenous peoples around the world and implores the Canadian government to “explore ways to hold transnational corporations registered in Canada accountable for these acts.” Yet instead, as Imperial Canada Inc. lays out in detail, our governments have been actively assisting these corporations with enormous tax breaks and subsidies, lax stock market regulations, diplomatic support, and immunity from prosecution for environmental destruction and human rights abuses overseas. Canadian government support Imperial Canada Inc. provides evidence showing how our governments help the mining industry with diplomatic support and funding, particularly exploring how Export Development Canada and the Canadian International Development Agency regularly pump millions into mining operations in notoriously troubled areas where mining wealth, civilian poverty and resulting armed conflict are virtually synonymous—like Nigeria, Rwanda, South Africa, Tunisia and the Congo. “The money [our government] will put into a project is related to the interests Canadian corporations have in that specific project,” says Deneault. He points to two dams on the Senegal River which Canadian International Development Agency aid helped build in the 1980s. “It was a catastrophe,” says Deneault, describing soaked arable lands, collapsed fisheries, new diseases blooming in the stagnant water, and violence erupting amidst diminishing food supplies. “And why,” Deneault asks, “were those dams built?” First, he explains, Canadian companies made money building them, and then the dams provided electricity for a Canadian company’s nearby open-pit gold mine, which itself spread streams of deadly arsenic and turned into an environmental and health disaster for local populations. “And they called that a successful project on the web site of the Department of External Affairs,” says Deneault. “It’s a pure contradiction, what [Canada] claims to be and what they do abroad.” Canada also has a legal framework that makes it impossible to hold these corporations to account in court, says Deneault. Imperial Canada Inc. reviews how over 23,000 Guyanese citizens filed suit against Canadian mining company Cambior after a catastrophic tailings pond accident, but in 1998 Quebec courts simply threw the case out. Just last November, Canada’s Supreme Court summarily dismissed attempts by a coalition of organizations and families of victims to sue Canada’s Anvil Mining for its involvement in a massacre in the Congo. One supposes that at least these companies must be golden-milk cows for our own government coffers. But a study by Quebec’s auditor general, for example, found that 14 mining companies with $4.2 billion in revenues from 2002-2008 paid no tax at all, while other mining companies paid a tax rate of about 1.5 percent. Meanwhile, Quebec tax breaks and credits cost taxpayers from 1.5 to 7 times more than mining royalties brought in. Investors are also being handsomely compensated, with tax credits of up to 150 percent for investing in companies doing mining exploration. Such figures almost stretch credulity but, commendably, the ImperialCanada.ca website has links for many of the book’s references. That footnote clicks through to a Quebec government tax advisory for mining investors: “…which gives a total possible deduction of 150 percent of the amount invested.” So why are our governments so supportive of mining companies? Deneault shows that our mining industry magnates and political leaders are in many cases the same people, including Brian Mulroney, Paul Desmarais Sr, Jean Chretien, Joe Clark and Brian Tobin. However, the book also presents a more variegated history to how Canada became so mining-friendly. Corrupt stock exchanges and uninformed investors “Canada is a former colony,” says Deneault. “The public institutions that we created in Canada historically were dedicated to monopolies exploiting natural resources…Canada is fashioned a little like Leopold the Second fashioned the Congo.” Further, both the Toronto and Montreal stock exchanges developed during Canada’s late-nineteenth and early-twentieth-century goldrush eras, establishing their niche as speculative mining markets. Imperial Canada Inc. examines how the two exchanges then competitively raced each other to the bottom to attract companies, including making most regulatory compliance obligations “voluntary.” Today, though the Toronto exchange has become the mining company epicentre, many of those lax practices remain in place at Vancouver (home to nearly half of Canadian mining companies), Toronto and Montreal’s stock exchanges. For example, unlike in most other countries, Canadian publicly-registered companies are allowed to mislead ordinary investors by blurring the lines between “reserves,” which are precisely calculated estimates of a mine’s geology, and “resources,” which are speculative assertions about how much ore might be there. It’s a practice that became infamous during the $6 billion stock market collapse of Calgary’s Bre-X in 1997. Canada also only requires publicly-traded companies to report to shareholders on issues that a “reasonable investor” would care about—and that’s deemed to be only issues directly affecting market value, not affecting broader society, human rights or the environment. “When we’re reading the documentation related to the [legally required] disclosure of information,” comments Deneault, “it’s always about this ‘reasonable investor’ and what he should know…It’s like a sociological character, defined so. A reasonable investor in that fiction is an investor who only cares about what he has to know with respect to his own private interests.” Even more unnerving: Most Canadian financial institutions, mutual funds, and major private, public and union pension funds, including the Canada Pension Plan, are heavily invested in this cloaked ethical miasma. “All Canadians are mining shareholders, but they don’t have any control of that, they don’t even choose to be shareholders or not,” says Deneault. Meanwhile most of us, he adds, don’t realize that mining companies and government officials often rationalize many exploitative and abusive acts overseas by claiming they’re protecting average Canadians’ investments and pensions. Change needed here first In many respects in the globalized economy, concludes Deneault, it’s Canada that’s the “lowest common denominator” dragging the rest of the world’s ethical and environmental mining standards down. That’s why it seems backhanded flattery that, in a 2008 survey, mining executives ranked 7 Canadian provinces amongst the top 10 jurisdictions on Earth for their pro-mining policies—BC ranked 24th, well below Botswana, but far above Ghana and Zambia. And it’s therefore perhaps even more unnerving that, this year, UBC and SFU received millions in Canadian International Development Agency money to host a new institute that will work with mining companies to promote Canadian mining “policy, regulations, educational programs and technologies” in developing countries. Besides suing academics, our mining industry works in other ways to suppress open discussion in Canada about all of this. Deneault draws direct links between directors of mainstream media and the mining industry. But his book reveals other insidious efforts, like an industry group’s “Mining Matters” educational program for elementary schools, implemented by the Ontario government, which warns teachers against being critical of mining, and the University of Toronto agreement allowing Barrick to co-develop curriculum in exchange for donations, which got rewritten only after protests. Deneault doesn’t claim every Canadian mining company is immoral, but he does believe his book is revealing “only the tip of the iceberg.” “The mining sector in Canada is totally out of control,” he summarizes. “We don’t have any way to make sure that, on an ethical level, these mining corporations registered in Canada behave properly abroad.” How can we rectify the situation? Deneault proposes calling independent commissions to investigate. “There are too many allegations from too many sources on too many very controversial cases to believe that it’s all suppositions,” he says. He also suggests taking ethical financial action. “Since there’s no way to verify what [mining companies] do, Canadians should try by any way or means to withdraw their money from that sector.” Deneault believes we’d do well to improve mining practices here in Canada, too, which he feels often aren’t much better than elsewhere. He recently spoke in Kamloops, and heard from the protesters battling the planned open pit mine there. It reminded him “how weak the voice of the population is” even in Canada. I describe to Deneault the ruckuses that have erupted since the BC Liberal government put up an online tool making it incredibly easy and cheap for mining companies or anyone else to stake previously publicly-reserved mining rights on public and private lands. Though most new claims have been happening in remote locations, so few of us know about them, two men recently staked claims across huge swaths of Pender Island, throwing property owners, law enforcement and local government into confusion about what happens next. The Tyee has reported on a quarrelsome Vernon man who staked claims on his neighbours’ lots and then with impunity began trespassing on their properties at all hours, putting up mining signs, and spray-painting their trees for removal. And of course, the intent of the tool is that real mining operations might ultimately begin in some cases. “In any other kind of activity, in any other sector, it’s impossible to imagine you could obtain a property in five minutes on the internet,” comments Deneault. “It tells a lot about the jurisdiction that we’re in.” That’s part of the reason that, here in Victoria, a new group called the Mining Justice Action Committee has begun trying to raise public awareness and build solidarity amongst people affected by the practices of Canadian mining companies in BC and around the world (see event below). Indigenous Filipino refugee Chandu Claver has been working alongside them. “We identify very well with what First Nations are looking at here,” comments Claver on the BC situation, where he sees controversial oil pipeline proposals as just another example of the power of the “extractive” industries like mining. “The state looks at indigenous peoples’ areas as resource-based areas, meaning a source of raw materials. Period. That’s why the people there are not a priority for social services, they’re not a priority for anything. What’s important for the state are their raw materials.” Like Deneault, Claver hopes BC activists could help set a better standard for human rights and environmental responsibility that would be exported as a model elsewhere. “If I’m able to work with First Nations in doing what needs to be done here, maybe it’s something that can actually accelerate change in the Philippines.” Deneault optimistically points out that there have been several federal mining-related bills recently, one each from the Liberals, Bloc and NDP, that variously sought to create a mining ombudsperson with investigative and regulatory powers, require more forthright corporate reporting, and permit Canadian companies to be sued in Canada for human rights abuses. Although he saw flaws in each bill and watched each be defeated or scuttled, Deneault felt encouraged. “Technically, they can change [the laws],” he observes. “We’ve had bills, we can see that it’s possible, we’re not dreaming.” Rob Wipond can be reached through his website at robwipond.com.
  10. November 2012 An elderly woman, with the support of her family, has been struggling to avoid forced psychiatric treatment at the hands of Vancouver Island Health Authority doctors. WHEN I ARRIVED AT THE PREARRANGED LOCATION, Michelle met me at the door. “Sorry, I didn’t want to tell you on the phone,” she said. “Now we’re going to go to where Mia really is.” We drove through the winding suburban roadways, and it felt like I was being taken into remote mountains of Central America for a secret meeting with el Comandante of the guerrilleros. I was actually on my way to interview an 82-year-old Victoria woman named Mia, described by friends and family as quiet, sophisticated and loving. Mia hadn’t threatened anyone or broken any laws, but she was on the run—from her doctor and the Vancouver Island Health Authority. And this tense drama had come to epitomize the challenges, and frightening dangers, of enforcing powerful mental health laws that are guided by woefully weak science. I had actually met Mia S. for the first time two months earlier (only the first names of family members are used to protect their privacy). Mia lived in a Victoria retirement home from 2008 to 2011. She was put on various antidepressant drugs—common in Canada’s long-term care facilities, where 50 percent of our elderly are being given antidepressants (about 50 percent in BC are also being given antipsychotics, as was Mia, at times). During a prolonged period when several family members were unusually busy, Mia became lonely and withdrawn and, in mid-2011, was taken to the Royal Jubilee Hospital (RJH) geriatric psychiatry unit for several months. During this time, Mia’s close stepson, Michelle’s father, died unexpectedly. Responding to Mia’s expressions of loneliness and grief, Michelle took Mia into her home with her husband and children, where Mia lived until injuring her pelvis in March of 2012. While rehabilitating in hospital, Mia was transferred to the psychiatric unit again. It was then, in June of 2012, that I started receiving concerned emails and calls from Michelle S. After a decade of writing publicly about mental health, civil rights, and seniors care, I’m often contacted for any advice I have by people negotiating “the system.” VIHA senior geriatric psychiatrist Dr Michael Cooper had certified Mia under the Mental Health Act (MHA)—he was now holding her against her will in hospital, and intended to give her electro-convulsive therapy (ECT, or electroshock) against her and her family’s wishes. Mia feared ECT because she’d seen other patients experiencing massive memory loss. On her grandmother’s behalf, Michelle appealed the certification. Michelle asked me to witness the hearing. I agreed, provided Mia wanted me there, too. Before meeting with Mia that first time, I reviewed some of her medical history. A key worry was malnutrition: “…lack of intake of food…major concern is that Mia is not eating…at significant risk for physical deconditioning…” It seemed Mia was suffering a depression so severe she was nearly starving, and therefore her doctors recommended emergency ECT. I accompanied Michelle to the hospital, where Mia invited me to the next morning’s hearing. Mia also complained about being hungry. Michelle retrieved a half wheel of brie from a dining area, which Mia ravenously wolfed down. A nurse expressed frustration: “Oh no, eating isn’t her problem! We need her to have a bowel movement. Cheese won’t help that.” So, what was the emergency? Involuntary treatment and review panels Over 10,000 people were certified, incarcerated and treated against their wills under BC’s Mental Health Act last year, including 1557 on the south island from all walks of life. Countless more patients are simply told, “Do this, or else you’ll be certified…” And contrary to common belief, in BC, involuntary patients needn’t be “dangerous”—they need only be diagnosed with a mental disorder and be at risk for “deterioration.” It’s not without controversy. After years of consultations developing the UN Convention on the Rights of Persons with Disabilities, the UN High Commissioner for Human Rights recently proclaimed that forced psychiatric treatment “must be abolished.” A BC Civil Liberties Association paper complains about how, unlike elsewhere in Canada, BC gives no rights even to intellectually competent individuals to refuse psychiatric treatments. Appeals are heard by a three-person administrative tribunal of the provincial Mental Health Review Board (MHRB) comprised of a medical practitioner, a lawyer, and a community member. However, Vancouver’s Mental Health Law Program (MHLP) provides the only specialized, publicly-subsidized legal representatives for patients, and they turned down over half of requests for assistance last year due to funding shortages. In last year’s Public Commission on Legal Aid final report, Commissioner Leonard Doust wrote that he was “profoundly shocked” by this “profound violation” of human rights, where so many vulnerable people, often while forcibly drugged, had to represent themselves at detention hearings. Meanwhile, according to the Health Ministry’s MHRB website, it’s usually a two-hour hearing, with a majority decision within 30 minutes. Only 15-20 percent of patient appeals are successful. He didn’t legally have to wait, but Dr. Cooper had agreed to postpone the ECT until Mia’s appeal. Yet Mia couldn’t get MHLP assistance. Her chances didn’t look good. No right to attend In a Royal Jubilee Hospital meeting room, the chair, lawyer Frank Borowicz, briskly introduced the panel. Nothing was said or done to comfort Mia. There was no welcoming, inviting speech about how we were all gathered to help understand what was truly best for this vulnerable person going through a very difficult time. Borowicz pronounced discussions would be “informal” and explained nothing about the purpose, agenda or procedures for the hearing—instead, he grilled Mia: “[Mrs. S.], do you know why we are here?” Borowicz asked. “Yeah,” Mia replied. “Why are we here, ma’am?” “It’s all about me.” “What about you, ma’am?” The back and forth became excruciating, as if Borowicz’s interrogation were an on-the-spot test of Mia’s mental capacity, and Mia’s every hesitation, misunderstanding, confusion or moment of forgetfulness was indicting her. Borowicz would soon admit as much, stopping Michelle from assisting Mia with a recollection and saying, “Is it possible for [Mia] to speak? Because if it isn’t, then that tells me something about whether or not she’s capable of forming a view that she wanted a lawyer.” Perhaps Borowicz was out of sorts: Mia’s recently hired lawyer hadn’t come but had requested an adjournment. Michelle had brought what might’ve looked to Borowicz like a small army, including her husband Russel, Mia’s current home caregiver, a family friend, me, a seniors advocate, and two lawyers. Dr Michael Cooper had objected to my presence, and had sent for VIHA’s legal counsel, Lee Ann DeCecco. Borowicz soon adjourned to wait for DeCecco. Cooper and DeCecco then met with the panel separately for 15 minutes. Reconvening, Borowicz promptly ordered me, the seniors advocate, and the family friend to leave because, he said, this was a “private” hearing. I realized it was probable no journalist had ever witnessed a BC mental health review panel hearing. The public had no idea how people’s fates were being decided by people like Borowicz. I resolved to write about it. Based on recordings I obtained from anonymous sources, things didn’t lighten up after I’d left. Borowicz began asking Michelle about when, how and why she’d retained her own lawyers. When one lawyer questioned the relevance, Borowicz threatened to throw him and Michelle out, too. “Well, sir, [Michelle] is not a party to these proceedings,” Borowicz proclaimed, “and if you’re here on her behalf, you may be excluded, too.” The case for electroshocking Mia Cooper began with a powerful 40-minute narrative. Pulling observations from medical records, he described Mia as having a 5-year struggle with depression. “Patient has severe depression characterized by severe apathy and withdrawal…spends most of her day lying in bed…not interacting socially…not participating in activities…not eating well…persistent low weight…decreased self care…family history of suicide…danger to herself…” Mia had declined participation in many activities due to feeling nauseous. “Her complaint of nausea, associated with really objective signs of distress, has been a persistent issue with Mia,” said Cooper, adding that all possible causes of the nausea had been dispelled. “We feel that [the nausea] is a psychosomatic presentation of the depression.” Cooper also portrayed Michelle as a questionable caregiver. He explained that she “was not following up with the recommendations by the treatment team.” Michelle had once “reported being overwhelmed.” Michelle’s hired home help was “inadequate for Mia’s needs”. Mia’s pelvic injury was made to sound like it may have been a result of neglect. Cooper even criticized Michelle for being “too coercive,” and for sometimes using words to others like “make” or “force” Mia to do things which might help her grandmother feel better. Cooper then segued, with no sense of irony, into proposing forced electroshock, partly due to Mia not meeting his expectations for attending VIHA support groups and outreach clinics sufficiently often. He also claimed he’d once allayed Mia’s fears about ECT, but Michelle had “undermined” that. ECT and memory loss Mia had good reasons to be afraid. Most people imagine that electrically shocking people’s brains was long ago relegated to the dustbins of psychiatric history along with other abusive techniques from the same era, like insulin comas and icepick lobotomies. In fact, BC’s current best-practice medical guidelines say ECT can treat depression, mania, schizophrenia and mood disorders, while it “may be the first choice of therapy for frailer, older patients” who don’t tolerate drug side effects well. Last year, over 100 Victorians received a typical “treatment” of 10-12 rounds of ECT over three weeks. (Some receive ECT more regularly.) ECT often “works”: many patients experience a mood lift lasting weeks to several months. “How does it work?” one heading asks, in a section of BC’s medical guidelines directed at patients. The answer: “Current theories suggest that the seizure activity causes changes in brain chemistry.” That theory is actually from the 1940s, and the guidelines themselves correctly dismiss it in the section directed at doctors. A shock that induces a grand mal seizure, the guidelines state, “will have little effect on improving target symptoms (i.e. depression).” To achieve “therapeutic” effects, shocks must be 2.5 to 6 times the intensity required to cause a major convulsion lasting 25 seconds or more. Consequently, critics argue ECT actually “works” through damaging shocks that blot out memory and cognition until you forget your problems and become docile. VIHA’s brochure for patients assures memory losses are only “temporary.” A headline in our provincial medical guidelines similarly declares, “Myth: ECT leaves permanent memory loss.” However, read further, and these same guidelines admit, “memory loss for events that occur before, during, and/or after the period of time you are being treated may persist.” Such spin-doctoring has characterized ECT debates for decades. In 2001, two UK Department of Health-commissioned reviews found most pro-ECT studies had “limited general credibility” and avoided examining long-term impacts, while surveys found 29 to 79 percent of ECT patients reported permanent memory loss. So in 2007, long-time ECT proponent Harold Sackheim buckled to public pressure and performed “the first large-scale, prospective long-term study of cognitive outcomes following ECT.” Sackheim’s team reported in Neuropsychopharmacology that ECT caused long-term disruptions in most people’s abilities to recall events, retain new information and think clearly. And the worst effected were elderly women whom, in Victoria as elsewhere, are two to five times more likely than men to be treated with ECT. Recently, the US Food and Drug Administration demanded manufacturers finally begin formally testing ECT devices for effectiveness and safety. Yet Mia’s hearing was already underway. Whose story is more believable? After Cooper’s testimony, Michelle said she was “appalled” by the inaccuracies she’d heard. (Mia was largely silent or resting in hospital throughout the five-hour hearing, and she was rarely asked anything. She told me later she was “just frightened” the entire time.) Michelle and Russel’s initial responses were emotional and disjointed. In part, they were staggered by how Cooper had been able to access and selectively cull information from virtually every point of contact they’d ever had with the health care system, from relationships they’d assumed were confidential with social workers, support groups, pharmacists, family physicians, and private home care companies. Alone against all this, they felt they had no chance. But they had lawyers. Combing through those same records, Michelle’s lawyers found evidence of Mia’s status changing almost weekly, including “mild” depression, “probably not clinically depressed,” “smiling,” “tends to minimize and deny her symptoms,” “able to… present well.” Even just two weeks before certifying Mia, Cooper wrote, “no obvious signs of depression…no grounds to proceed involuntarily.” And if Mia has had depression for years, they asked, is that indication of an emergency, or indication that she has been successfully living with it? They found ups and downs in the weight records. They argued that Mia, known as an extremely picky eater who hated the food in the care facility and hospital, gained weight at Michelle’s. As for Mia’s time in bed—how much was there to do in the small, depressing hospital unit, anyway? And weren’t patients frequently criticized for walking around too much? And Cooper’s hint of some dangerous genetic predisposition, a history of family suicides which Mia and Michelle said was nonsense, turned out to come from a social worker’s note after chatting with someone unnamed. Meanwhile, they explained, Mia didn’t attend VIHA’s support group because she felt out of place amongst people who seemed much more troubled. And if Mia’s accident somehow reflected poorly on Michelle’s home care, how did it reflect on the hospital’s care that Michelle brought Mia back repeatedly before doctors finally diagnosed her with a pelvic fracture instead of with just deeper depression? The lawyers also suggested Mia’s nearly-constant nausea could have been worsening her depression, and could have been caused by medications. Cooper admitted another doctor had suggested that, so he’d changed one antidepressant, and later tried stopping two. (Mia had actually been taking eight major drugs, often five or more simultaneously, and the side effect profile for every one included possible nausea.) Michelle presented her home care plan and, over the next several hours, the panel zigzagged through questions for Cooper, Michelle and Russel. In particular, they asked Michelle and Russel reams of questions about the condition of their home, Mia’s suite, their neighbourhood, their work and financial circumstances, their educational background, their willingness to ensure Mia followed VIHA doctors’ orders, and their level of respect for psychiatric science. It seemed it was Michelle (a research assistant on leave from the University of Victoria) and Russel (owner-manager of a shopping centre) who were really on trial, being judged against unspoken standards. Court without rules Russel described the hearing process as, “like a wood chipper, like a steam roller, like you were going to get destroyed.” Paige Kato, Mia’s university-student caregiver, described it as “disorganized” and “unprofessional.” “To even have to go through a process like that for such a thing is really outrageous,” she said. Both lawyers present at the hearing declined comment. Mia’s lawyer, Lloyd Duhaime, generally observed, “One of the problems with administrative tribunals is that they are very much masters of their own process. It’s like Judge Begbie on horseback in the Kootenays back in the 1880s. Each tribunal, while quite arguably trying to do the best they can, imposes these apparently arbitrary decisions.” Administrative tribunals were designed to allow conflicts to be resolved outside slow, expensive courts, explained Duhaime, but BC’s expanding use of them, especially in situations where someone’s “soul” is at stake in the face of “horrifying” psychiatric treatment, is worrying. “These types of decisions should be made by courts of law.” Duhaime was particularly disturbed to learn that Dr Cooper had been privately talking ahead of the hearing with MHRB chair Margaret Ostrowski. Ostrowski is essentially a one-woman supreme court for the panels, ruling on laws, processes and conflicts. “It certainly is confusing for a lawyer who goes by the rule book to have a communication with the chair of the Mental Health Review Board, who casually remarks that she’s already spoken to the lead psychiatrist on the case directly on previous occasions,” said Duhaime. He added, “I would add a bunch of question marks after that, as if to say, it sounds almost hard to believe, doesn’t it????” I requested an interview with Ostrowski, but she declined and refused to provide anyone else. A Health Ministry communications rep said someone had gotten to her first: “She was not impressed apparently with what happened at a hearing that you attended…[She thinks] the way that you acted was not professional.” In my opinion, I’d behaved professionally in my brief time at the hearing, but I stopped pursuing Ostrowski because the situation seemed to pointedly exemplify the concerns Duhaime and others were raising. Indeed, the MHRB’s own “Rules of Practice and Procedure” articulately elucidated the problems: These “rules” are basically a list of things the panel can do any way it wants, each one presenting more opportunities for arbitrariness, behind-the-scenes scheming, and lack of public accountability. For instance: Rule 15.1: The Board “requires the patient to attend the hearing.” Or, alternatively, the Board can refuse to allow the patient to attend his own hearing. Rule 15.5: “Witnesses…must not be present in the hearing room before they give their evidence,” except if the Board decides otherwise. Rule 16.1: The hearing “must be held in private unless the review panel otherwise orders.” Rule 17.1: The review panel can decide to allow or disallow any evidence, “whether or not the information would be admissible in a court of law.” Rule 17.4: Panel members will not review or discuss evidence with any party to the case before or outside the hearing, except “in the discretion” of the panel. In 1992, BC’s provincial Ombudsman recommended legislation changes to address “possible unfairness” due to the “wide discrepancy in procedures” and “informal standards” mental health review panels were operating under. Her recommendations haven’t been implemented. In Mia’s case, the panel declared in their final written decision, “The patient is a member of a close and loving family, which has always caringly attended to her personal, as well as medical care and supervision.” The panel further concluded that Mia did not need to be electroshocked. She did not need to be certified. She did not even need to be in hospital. Mia was sent home the morning after the hearing. I was immensely relieved for Mia. But it was also unnerving. After all, this complete reversal just further highlighted the unscientific, unfair process that had deprived Mia of her liberty for months, and had nearly subjected her to electroshock. So who else was in danger? Dr Alistair Murray, the panel psychiatrist, wrote a dissenting opinion. He said Michelle and Russel were “obviously caring people,” but they didn’t have “appropriate expertise.” He concluded: “[Mia S.] is committable under the Mental Health Act.” It was a foreboding warning. You’re free to go. Sort of. Shortly after Mia’s discharge from hospital, VIHA representatives began to call (according to Michelle, sometimes many times per day, but she did not answer) and they also came by her home at least twice in two weeks that she knew of. “They asked us a ton of questions, trying to find out what we were doing, where we were going,” said Michelle. “They asked grandma who her new doctor was…How’s your therapy going…” Since the hearing, the whole family began viewing all health system workers with inherent suspicion: Whose side were they on? What would they report? Duhaime wrote to VIHA lawyer DeCecco, protesting the continuing “invasion of my client’s privacy.” Far from denying the harassing activities, DeCecco responded with demands: Mia must visit a physician monthly, continue taking all prescribed drugs, submit regularly to assessments by VIHA staff, and always give VIHA her current whereabouts and phone number. And Michelle must help Mia do all this. “VIHA requires compliance with the above on or before September 26, 2012,” wrote DeCecco. DeCecco did not say what the consequences of non-compliance might be, but from research, Michelle and Russel learned the Adult Guardianship Act gives health authorities powers to enter a home without a warrant, “use any reasonable force” and “take any other emergency measure” to seize any adult whom they believe may be “apparently incapable” or neglected. DeCecco also suggested to Duhaime that the Public Guardian might be called in to take over Mia’s affairs. And indeed, both Russel and Michelle had earlier received cryptic letters from the Public Guardian’s office, stating, “We are in receipt of a referral with respect to [Mia S.] and will be assessing the situation to determine if the services of our office are required.” Outraged, Duhaime pointed out that the panel’s discharge of Mia was “unconditional.” “There’s no difference really between the regular citizen and my client,” he said. “[Mia] is a person who is entitled to the full protection of the law in terms of her privacy and the sanctity of her being, and as far as I’m concerned, I will protect that with my last breath.” The family went underground. Calls were screened, daily details were closely guarded, and Mia began moving between friends’ and relatives’ homes in Victoria and elsewhere. Michelle and Russel adapted their work situations and started home schooling their children to allow family mobility. When I sat with Mia in her relative’s home, she seemed quiet and sensitive, but clearly wanted freedom from VIHA’s clutches. She described mainly feeling “frightened” and like she was “going nuts” in the hospital. She was now taking no drugs of any kind, and felt better. “I had the feeling I was overdrugged,” Mia said. “Terrible. I felt very tired.” She was no longer experiencing nausea, but she said she still feels depressed sometimes. I asked what makes her feel better. “I like to be with this family,” she answered. “I’m very glad I have Michelle and Russel.” Was she surprised to learn about doctors’ powers to take away her rights? “Yeah, I was really surprised about that,” she said. “I thought the doctors were there to help the patients.” The relative hosting Mia said Mia was “fantastic” now and opined that Mia’s “soft” nature made her easily “strong-armed” by male doctors. “She needs to be left alone now. She needs to have an environment where she feels safe and secure.” Her own perspective on what she’s been witnessing? “I am completely shocked by it. I have aged parents myself…I just had no idea you could actually lose control of someone that you love.” What protection is there? “What do they want, why do they want to do these things to us, what are their motivations?” asked Russel. “Is it money? Is it something darker?” Surely, this conflict and breakdown of trust on all sides weren’t good for Mia. But as her hearing had demonstrated, there are still no objective ways to identify hypothetical brain diseases or biochemical imbalances, so declaring anyone certifiably mentally ill against his, or his family’s, wishes almost inevitably develops into each side criticizing the other’s credibility, character and comprehension of reality. For confidentiality reasons, VIHA psychiatrist Dr John Copen couldn’t speak about particular cases, but he conceded that during certifications, “There are always difficulties around families, and patients, and have the right things been done.” Copen said differences of opinion can be addressed by “checks and balances,” such as review panels. However, he acknowledged that, if doctors don’t agree with a panel decision, they don’t really have to abide by it, anyway. “If a review panel overturns a status, virtually immediately, if that condition still exists, a practitioner can make another application for certification,” said Copen. If a physician believes a person is “really ill” or “very at risk,” he added, then “the physician would be in fact held medically negligent if they did not do their clinical duty to manage that safety risk.” According to the BC Civil Liberties Association, broad Mental Health Act liability protections would likely prevent doctors from being sued even for “disastrous” actions. Nevertheless, Copen’s perspective reflects an important feeling that’s likely genuine and pervasive. With the enormous powers they’ve been handed, many psychiatrists probably experience a swelled sense of responsibility, like an army general, or someone who gets an infant left on her doorstep. And like generals, psychiatrists are reluctant to relinquish or distribute those powers. For example, last year’s legislation empowering advance directives for health care decisions excluded mental health care. We’ve gained stronger rights to decline resuscitation, but never to refuse psychiatric drugs or electroshock. “From our end, we really are doing our best to help our patients and our best to promote good practice and good care,” Copen said, describing “a really intense caring attitude” amongst most mental health workers. Of course, a psychiatrist’s “intense caring” about you could seem warmly helpful, or imposingly threatening. “[Mental health professionals] do grapple with and struggle with what’s best for the patient, what’s best for the family, first and foremost,” said Copen. “Not everything is clear as mud…There are no easy answers.” Michelle and Russel were at a loss as to what advice to give others, because they’d had everything in order with Mia, including powers of attorney, representation agreements, home support and more. “I felt that this was a great country, and we had a good Charter of Rights, and that we were protected here, and we were free people,” said Russel. “But we’re not. We’re all in danger. No matter what legal documents you have that you think are expressing your desires and wishes…None of that is worth anything once the hospitals and doctors decide that they want you.” “This has ruined our lives,” said Michelle. “It’s been a year of hell for us…Financially, it’s insane. Just our time, our family, everything. It’s been overwhelming.” “I’m scared,” said Russel. “The legislation absolutely does need to change. And people need to know what’s going on because they’re hiding it. And these stories are so impossible to believe. The only way that this can change is in the public eye.” For others in their situation, Mia suggested, “Perhaps they should speak out.” Rob Wipond has been shortlisted this year for a National Magazine Award, two Western Magazine Awards, and three Jack Webster journalism awards for his writing in Focus.
  11. March 2012 Documents suggest BC Solicitors General and the RCMP have been misleading the public for years. “THERE'S NOTHING, in my view, to be alarmed about,” said Victoria Police Chief Jamie Graham. He was speaking at February’s Reboot Privacy and Security Conference in Victoria, to 200 privacy experts, academics, and government and corporate executives from around North America, including Alberta Privacy Commissioner Jill Clayton and BC Privacy Commissioner Elizabeth Denham. Graham was on a panel with Christopher Parsons, a UVic PhD candidate in political science and surveillance studies. Parsons was presenting findings from research done by him, me and tech expert and civil rights advocate Kevin McArthur into Automatic Licence Plate Recognition (findings first revealed in February’s Focus, “Hidden Surveillance”). Automatic Licence Plate Recognition (ALPR) involves equipping police cruisers with cameras and software that can read thousands of licence plates per hour and compare those plates to crime “hot lists.” The program operates as a joint effort between the RCMP, BC government and local BC police forces, ostensibly to primarily catch stolen vehicles, unlicensed drivers, and prohibited drivers. However, in some other countries, ALPR captures data about all cars on the road, which helps create comprehensive intelligence profiles about innocent people’s behaviours. ALPR has then been used, for example, to identify individuals with “suspicious travel tendencies” and intercept citizens headed to protests. And during our research, our team found disturbing evidence that ALPR has already been used here, and is intended in the near future to again be used, for tracking and recording the movements of all citizens. (Retention of ALPR data about most innocent citizens has been temporarily suspended after the Office of the Privacy Commissioner of Canada expressed concerns.) After eight months of digging, our research team had managed to ascertain this and some other facts about the ALPR program—though it only took minutes for Graham, at the conference, to recast or contradict many of them. We have documents indicating that Victoria police have purchased an ALPR system—but Graham said, “We borrow the Mounties’ car.” Sources and documents explained to us that updated hot lists are put into that cruiser daily, whereas Graham said weekly. The BC Privacy Commissioner’s office told us they’d been “briefed a number of times” about the ALPR program, while Graham described that as ongoing discussions with the Commissioner’s office about ALPR data retention: “We’re in the middle of kind of working that out…” Graham added that he wanted to see open discussions about ALPR between police and concerned citizens and “be up front, here’s what we want, here’s what we’re doing, let’s work together…” This, even though VicPD refused to provide anyone to talk with Focus about the ALPR program.To top it off, during the Q&A, I pointed to several such inconsistencies and asked a question, and Graham took the opportunity to describe my Focus article as “inaccurate” and engage in some back and forth with me. In reply to my question as to why he wanted to keep the ALPR data, he then said, “If what we’re trying to achieve and what we’re trying to search and locate require judicial authority, not your okay but judicial, we get it. If we don’t, we’ll axe it. Our standard is what the courts say, not by a marginal journalist.” This comment was met with a chorus of disapproving “ooo”s. Graham later said he was being “facetious.” For the record, Focus has not been contacted by VicPD or the RCMP with corrections to any supposed inaccuracies in our article about ALPR. But we invite—indeed encourage—any corrections or clarifications that the authorities would like to provide. “It’s symptomatic of the trend we’ve been finding, that we get documents and then we have an interview with someone and we hear a different story,” observes Parsons afterwards. “It’s deeply concerning that we can point to a document, and then we’re told the document is inaccurate, misleading or out of date. But a lot of times what people say is not official, either. It’s frustrating. It actually challenges a cornerstone of democracy: your right to know what your government is up to and why.” In any case, Graham gave general reassurance to the conference audience. “Right now, there is a big fear that there’s this database where all the non-hit data [records of the movements of cars belonging to innocent people] …is retained by police for some nefarious purpose,” he said. “That is not true.” Nevertheless, Graham then explained, like the RCMP has as well, that such a database is essentially what he wants to build. “I want that non-hit data. I make no bones about it. What would I do with it? I don’t know what I would do with it. But if I need it, I’d like to have it.” “Chief Graham professes there is no nefarious purpose,” comments McArthur, “but even the most basic documentation on the program, like the RCMP Privacy Impact Assessment, has been designated as ‘particularly sensitive, Protected B’, and pages were redacted [removed] when it was released to us.” And indeed, startling documents newly obtained by Focus show the Office of the Privacy Commissioner of Canada (OPC) has expressed even more serious concerns than we have, and also reveal that the BC government and RCMP seem to have been misleading the public since day one. It began in November of 2006. A BC government press release announced the ALPR program, and stated “the federal privacy commissioner has reviewed the technology.” Soon, the Richmond Review, Burnaby News Leader, Chilliwack Progress and other news outlets covered the story, reporting that, according to then-Solicitor General John Les, “the system was approved by the federal privacy commissioner.” In mid-2009, when ALPR expanded to more BC police forces and RCMP detachments, the Victoria Times Colonist and Nanaimo Daily News reported that RCMP Sgt Warren Nelson told them, “Both federal and provincial privacy commissioners have approved the system[.]” However, the BC Office of the Information and Privacy Commissioner has never officially reviewed the ALPR program. And confidential correspondence from the Office of the Privacy Commissioner of Canada to the RCMP, obtained through an access to information request, contradicts these government and RCMP claims. The federal Privacy Commissioner first received a copy of a “Preliminary Privacy Impact Assessment” about the RCMP’s ALPR program in 2005. However, the OPC was struggling with staff shortages and never reviewed the document. In 2007, the OPC finally indicated readiness, and asked the RCMP for an up-to-date ALPR privacy impact assessment. But that updated version didn’t arrive until two years later. The Office of the Privacy Commissioner of Canada finally conducted and issued its first review of the RCMP’s ALPR program on July 15, 2009. But by that time, the ALPR program had already spread to numerous police forces and areas around BC, and the BC government and RCMP had been telling the public for three years that the federal Privacy Commissioner had both “reviewed” and “approved” the program. And as recently as December of 2011, RCMP officers leading the ALPR program were still making such claims. “Permission was obtained from both the federal and provincial privacy commissioners to use [ALPR] as a pilot project [in 2006],” Sgt Nelson told Focus. “Generally, [the Office of the Privacy Commissioner of Canada has] been very supportive,” said RCMP Superintendent Mike Diack. Yet in fact, the July 2009 review shows Steven Morgan, Director General of the Audit & Review Branch of the Office of the Privacy Commissioner of Canada, describing the RCMP’s ALPR program as “a generalized and ubiquitous form of surveillance” with “real and substantial” privacy risks, and he repeatedly questions the entire program’s very legality. For example, the RCMP has long claimed licence plate numbers are not personal information, and so they need not abide by most privacy laws when tracking Canadians with ALPR. But Morgan writes, “Licence plate numbers and images of individuals captured by ALPR equipped cruisers would in fact qualify under the [Privacy] Act as personal information.” Morgan further expresses concern that the ALPR program has no clear lines of governance and accountability within the RCMP, and no plan to ensure program changes are legal prior to being implemented. This situation, he states, contravenes directives issued by Treasury Board (Treasury Board is responsible for ensuring federal government programs comply with Canadian privacy laws). “[W]e request that the RCMP explicitly identify those individuals responsible for ensuring compliance with applicable policies and legislation for the ALPR program,” writes Morgan. Morgan also challenges the RCMP’s right to gather so much information about citizens for no clearly defined reasons, adding, “We therefore request that the RCMP provide explicit reference to legal authorities (both federal and provincial) under which the ALPR program is being conducted.” Morgan questions how the RCMP will manage ALPR errors. The RCMP’s own studies show 8-10 percent of plates are misread. This could translate into thousands of false records daily from the Victoria area alone identifying people’s cars in places where they haven’t been. Yet these false records would still be stored automatically in RCMP databases. Citing subsection 6(2) of the Privacy Act, Morgan writes, “[W]e ask the RCMP to provide our office with details of the measures in place to ensure that records…are accurate.” Morgan adds that the RCMP has not provided any procedures for people to access or correct information about themselves in the database, even though such access and correction procedures are requirements under privacy law. And notable in light of the difficulties our research team has had obtaining information, Morgan describes “unease” in the Commissioner’s office “over the lack of RCMP communication to the public on this initiative,” and states, “The public has a right to know about the ALPR program and its purpose.” If all this isn’t disturbing enough, the most startling comments emerge in relation to an aspect of the ALPR program which has never been publicly revealed before—aspects possibly discussed on the two redacted pages in the Privacy Impact Assessment obtained by Focus. Morgan notes with concern that the RCMP’s Privacy Impact Assessment discusses “the collection of a series of additional data elements—race, ethnic origin, gender, blood type, financial transactions etc—which do not clearly fit within the purview of the ALPR program.” What does collecting information on our blood types and financial transactions have to do with catching unlicensed drivers? “Wow,” says BC Civil Liberties Association policy director Micheal Vonn, reading and repeating these “data elements” aloud. “That is dazzling in terms of its overbreadth…Shocking on so many different levels, it’s hard to know where to begin.” Is this evidence that police are planning to use the ALPR database as a foundation for a much more expansive repository of diverse intelligence information? Vonn, a lawyer, is more circumspect: “This is further information to show that the program is not being used for what the public is being told.” Where would they even be getting information about our blood types or financial transactions? “What they’re planning to tap into, I can’t tell you,” says Vonn. But she points to the Liberals’ recent privacy legislation changes and notes, “I can tell you the government of British Columbia is actively attempting to create huge data linkages between all kinds of databases that exist within government programs.” Vonn isn’t sure what agendas are driving the ALPR “overbreadth,” but points out that police, somewhat understandably, always want as much information as they can get their hands on. Consequently, she says, it’s government’s responsibility to ensure this “voracious appetite” is properly balanced against the privacy rights of law-abiding citizens. “What the government is not doing in this case, it would appear, is appropriately regulating this, so that we can get the right balance,” says Vonn. “When we allow the police to decide what the balance is, it’s police one hundred, citizens zero. We would have barcodes on our foreheads.” I provided the OPC report to federal Conservative Tony Clement, President of the Treasury Board, and Liberal Shirley Bond, BC Minister of Justice, and asked how they’d bring the ALPR program into compliance with the law. The Treasury Board stated their responsibility “does not include an enforcement role.” The BC Justice Ministry issued no reply. The OPC’s Morgan summarizes concerns with an overarching recommendation: “To the extent that ALPR’s program leaders are unfamiliar with the requirements of the [Privacy] Act…we would strongly recommend that the RCMP engage its internal privacy experts and legal counsel in assessing the organization’s obligations for privacy protection.” Vonn says that’s as close to declaring a program flatly illegal as the Privacy Commissioner’s office would ever get in such a review. This is because the OPC must adjudicate complaints from the public about government programs, and so cannot appear prejudiced. “The advice of ‘please review’ is as strongly worded as you can get without prejudging the issue,” says Vonn. “Which is why it is very, very important to take the recommendations seriously, because they do indicate serious problems.” However, following this rebuke, the RCMP and OPC held a conference call in January, 2010, which Morgan later summarized in a letter. “[W]e note that the RCMP asserts that…” begins Morgan, and what follows is a point-form list of virtually every major concern the OPC had expressed, framed in the form of a dismissal from the RCMP: The ALPR program does indeed have adequate safeguards and controls, asserts the RCMP. Everything is indeed being done “in accordance with applicable laws.” There is indeed proper governance and accountability in place. And so on. “This is clearly the RCMP telling the federal Privacy Commissioner that it doesn’t want to do what it’s being requested to do,” interprets Vonn. “[The RCMP] have not implemented the changes. They have not addressed the concerns.” Yet with that, the OPC parked its file. Their office has little authority to do anything more unless someone complains about the ALPR program. But how, asks Vonn, do we complain about a surveillance program about which we can learn almost nothing? So Parsons, McArthur and I have decided that precisely that question itself will be the starting point for a letter to our federal and provincial privacy commissioners. Rob Wipond has been a freelance writer and investigative journalist for over two decades. Last year he was a finalist in the Western Magazine Awards for his Focus column, and previously won for business writing.
  12. February 2011 Not many people know that local police and the RCMP have already begun building a massive public traffic surveillance system. And no one knows how they’re going to use it. THE A-NEWS REPORTER and Nanaimo constable interwove: “amazing,” “blown away,” “overwhelming.” “This will revolutionize the way we police,” proclaimed Vancouver police in The Province. Both media and police across North America have engaged in such trumpeting about Automatic Licence Plate Recognition (ALPR). The RCMP and BC government piloted ALPR in 2006 and have expanded it rapidly. BC now has 42 police cruisers equipped with the technology, including one with the Victoria Police Department (VicPD), one in Saanich, and two in our regional Integrated Road Safety Unit. Normally, area police manually key in plate numbers to check suspicious cars in the databases of the Canadian Police Information Centre and ICBC. With ALPR, for $27,000, a police cruiser is mounted with two cameras and software that can read licence plates on both passing and stationary cars. According to the vendors, thousands of plates can be read hourly with 95-98 percent accuracy. These plate numbers are automatically compared for “hits” against ICBC and Canadian Police Information Centre “hot lists” of stolen vehicles; prohibited, unlicensed and uninsured drivers; and missing children. When such “hits” occur, plate photos are automatically stamped with time, date, and GPS coordinates, and stored. The officer will investigate details in the above-mentioned databases directly, and may pull over suspect vehicles. At least, that’s how the popular story goes, and it sounds wonderful. However, some news stories have quoted academics or civil rights advocates worried about what else this plate recognition technology is, or could be, used for. ALPR was developed by the British government in the 1990s to track movements of the Irish Republican Army. By 2007, the International Association of Police Chiefs was issuing a resolution calling for “all countries” to begin using ALPR and sharing population surveillance data for fighting gangs and terrorism. Today in the UK, ALPR is used for charging tolls, “risk profiling” travellers, and tracking or intercepting people using cars photographed near protests. But most Canadians’ concerns have been assuaged with statements like that in a Times Colonist article: “Both federal and provincial privacy commissioners have approved the system, which must comply with federal privacy legislation, said [RCMP Sgt. Warren] Nelson.” Yet no one in Canada has actually investigated either police claims or the complaints. That lack motivated me, along with Christopher Parsons, a University of Victoria PhD candidate in privacy and surveillance studies, and Kevin McArthur, a web architecture developer and high-tech civil rights advocate, to form a research team. Federal Privacy Commissioner Jennifer Stoddart’s office gave us our first shock of many. ALPR was never approved The federal Privacy Commissioner’s office directed me to statements they’d issued correcting journalists and the RCMP for saying they’d approved ALPR. In fact, the Privacy Commissioner described the ALPR program to parliament as “general and ubiquitous surveillance, without adequate safeguards,” and added, “We also urged [the RCMP] to clearly inform the public about the program and the uses of the information[.]” BC’s Privacy Commissioner has discussed but never officially reviewed ALPR. Next, I submitted an Access to Information request (the federal version of a BC Freedom of Information request) to the RCMP for a copy of their Privacy Impact Assessment (PIA) on ALPR. Federal agencies are legally required by Treasury Board to write such assessments detailing how new programs will work and appropriately handle Canadians’ personal information; they’re what Privacy Commissioners usually review. In August of 2011, we received an eye-opening 77-page Privacy Impact Assessment dated October 17, 2009 and titled “Final Revision.” According to this document, the categories of people that generate alerts or “hits” in the ALPR system, alongside car thieves and child kidnappers, are much broader than has ever been disclosed publicly. And information on these people’s movements is being retained in a database for two or more years. For example, though you may not be stopped, your car is a “hit” and its movements are tracked and recorded if you’re on parole or probation or, in some cases, you’ve simply been accused of breaking a criminal law, federal or provincial statute, or municipal bylaw. You’re also a hit if you ever attended court to establish legal custody of your child, if you’ve ever had an incident due to a mental health problem which police attended, or if you’ve been linked to someone under investigation. The list of hit categories continues through three more pages, and a fourth page that the RCMP completely redacted. Meanwhile, according to the Privacy Impact Assessment, the RCMP is also keeping records for three months on the whereabouts of everybody else’s cars, too—this is called “non-hit” data. What, our team asked, did keeping massive databases of records on everyone’s movements have to do with catching stolen vehicles or uninsured drivers? Kevin McArthur suggested: “[ALPR] is not intended to be a police cruiser improvement and efficiency tool, but to be a surveillance tool.” I promptly submitted official information requests to the RCMP and VicPD for “all documents” related to Automated Licence Plate Recognition. We have nothing, except everything Normally, a journalist wouldn’t name or quote information access officers. They don’t publicly speak for the agencies at which they work. However, they’ve played such an important role in this investigation, some conversations merit reporting. In August 2011, VicPD Information and Privacy Manager Debra Taylor called me to explain that, even though VicPD had the ALPR system in one of their cruisers, the RCMP ran the system, and I should contact them for any information. “We actually don’t have a program,” Taylor said. “We don’t have any documents per se.” She also said VicPD didn’t have any photographed Victoria cars, because that data was transmitted via encrypted USB drive to the RCMP’s database daily. Taylor read aloud an email from VicPD Sgt. Glenn Vermette which explained, with capitals and underlines, “to clarify, we (the VicPD) do not retain ANY data whatsoever regarding the ALPR… We retain absolutely NOTHING in the way of data, images, scans, NOTHING.” I might have dropped it. But I heard my expert team in my head: VicPD is simultaneously admitting they’re collecting the data, and denying they have the data? And they’ve launched a major program with the RCMP without a single documented security protocol or working agreement? So for 20 minutes I struggled with Taylor to explain why VicPD must have some documents. “There must be at least some exchanges…Presumably somebody communicated with someone to actually set up this system, and continues to communicate,” I kept saying. “There must be some sort of memorandum of understanding…” Taylor kept responding: “We don’t have it… I have nothing to give you…I’m not trying to withhold any information from you, I just, nobody, I can’t locate anything…They probably just have a note saying please follow the RCMP policy, but you’d have to get that policy from the RCMP.” Finally, Taylor relented. “I’ll do a little bit more research and hopefully there’s some kind of administration paper trail.” A month later, Taylor handed over 600 pages. We discovered that Vermette’s email was actually sent to Taylor herself over a year earlier in response to her questions. And it was just one of 80 pages of emails, of which 40 pages were sent or cc’d to Taylor, or written by Taylor, discussing the ALPR program. Meanwhile, what Vermette meant by “absolutely NOTHING” from ALPR hit records being kept by VicPD was apparently only in reference to digital information. VicPD had kept 500 pages of written, hard- copy logs of every ALPR hit they’d ever seen. VicPD refused interviews. So while my team members McArthur and Parsons pored over their documents, I contacted the RCMP. It’s personal information, and not During frequent emails and calls with two RCMP Access to Information and Privacy analysts, I was repeatedly asked to reduce the scope of my request for “all documents” about ALPR. Whenever I did, though, there were always eyebrow-raising reasons those specific documents couldn’t be produced. In five months, I got nothing. They also hadn’t sent the legally required deadline extension request. But the most remarkable responses emerged in relation to my continuing request for the ALPR database data. The RCMP’s Privacy Impact Assessment declares that licence plate photos are not “personal” information—a supposition that helps them skirt privacy laws and deflect public concerns about surveillance. So McArthur had an idea: Put all the data on the web, and watch how long the public agreed with the RCMP’s position, once anyone could punch in a plate number and see where and when the cars belonging to Victoria’s mayor, police chief, the premier, union leaders, journalists, government employees, armoured car companies, romantic obsessions and ex-lovers had been driving or parked for the past three months. Access to Information and Privacy analyst Yan Bellisle sent a search fee estimate. “The guy in BC called me and he’s like, ‘If you want everything, it means I’m going to have to pull out all the data from every car that has that system,’” she explained. I suggested the data from the Victoria cruiser alone would do. Then, we waited like a bait car. Shortly thereafter, Bellisle said the non-hit data didn’t exist. “In the Privacy Impact Assessment you probably read that all the data is kept...But the privacy commissioner came back saying that it was a privacy invasion.” Consequently the RCMP doesn’t store any non-hit data anymore, she said. Could she provide any documentation of that fact? She responded, “It’s not written anywhere.” And the hit data? Bellisle said it was personal information, and consequently, “It’s going to be exempted under the Access to Information Act.” So I wouldn’t be getting that, either. A second analyst, Christine Richard, also affirmed this. “Licence plates and such would be personal information.” I pointed out the RCMP’s Privacy Impact Assessment stated it was not personal information. Bellisle later said I’d get the hit data after all, but it would cost a lot because the records could only be extracted one by one. “It takes two to ten minutes to get one [record].” She offered to send a free, printout sample. I asked my tech savvy team-mate McArthur if it could possibly take that long to pull the records. “If you were to do it in a maximally complicated way on purpose, that could be,” he said. “But it should take seconds. That’s ridiculous, the idea that you couldn’t produce a report with all that data in it, with just the columns you want. Everybody who works with databases or knows databases knows that’s the primary function of a database.” The free sample never appeared. Does ALPR work? To what end? McArthur, Parsons and I were relieved to hear the RCMP wasn’t storing non-hit data, but we were disturbed by the implications. Together with the flip-flopping on what qualified as personal information, this meant major policies and procedures around automated plate recognition weren’t coincident with their Privacy Impact Assessment. Was that even legal? And what else was the RCMP doing with ALPR and not documenting? Perplexingly, the federal and provincial privacy commissioners seemed less than forthcoming themselves. McArthur added a salient observation: None of the touted benefits of ALPR required any retention of either hit or non-hit data. The system could compare licence plates to hot lists and nab stolen cars and prohibited drivers in real time. There was no normal policing need to store any ALPR data in a centralized database. The RCMP must have other reasons for retaining that data, but would they admit that publicly? I was about to find out. Superintendent Mike Diack and Sgt. Warren Nelson run the ALPR program out of RCMP “E” Division in Langley, BC. “I know more than anybody probably in Canada about ALPR within the RCMP,” said Diack. He apologized for the document delays from the RCMP’s Access to Information and Privacy analysts in Ottawa. “I said, ‘Hey, give him everything, absolutely everything, because this is the best program and it’s the future of policing.’” Diack and Nelson seemed like good-hearted cops, but the future of policing seemed surprisingly underwhelming. Since 2007, about 100-150 stolen vehicles in BC have been recovered thanks to ALPR (in Victoria: zero). By comparison, Vancouver volunteers doing weekend patrols boast an annual stolen car recovery rate ten times that. Primarily, ALPR hits have led to 7,191 charges for no driver’s licence, 2,215 for no insurance, and 1,199 for driving while prohibited or suspended. But Nelson couldn’t show if crime or charge rates have been trending up or down due to ALPR, or are above or below areas in BC not using ALPR. Though commonsensically ALPR could increase some charge rates—hence its popularity with traffic police—a 2011 study in the Journal of Experimental Criminology noted that “the crime prevention effects and cost-effectiveness” of ALPR systems “remain under-evaluated.” Theirs, and the other lone study done, found that ALPR “does not achieve a prevention or deterrent effect” on any types of crime. This is the case with most camera-surveillance operations. ALPR is definitely a make-work program for police officers—or one that seems to have little result other than possible citizen intimidation. Police easily get dozens of hit alerts per shift but, typically, less than one in four results in charges. Nelson explained that this is partly because police usually discover the cars of prohibited or suspended drivers are being legally driven by someone else. (Their whereabouts are still recorded and stored, though.) “They do cause an awful lot of extra work,” acknowledged Nelson, “unless you’re really dedicated to doing it and don’t have other duties pressing.” Last year, VicPD told the RCMP, “We do not anticipate obtaining any more ALPR units as we cannot keep up with the volume of work they produce.” Nevertheless, the RCMP is hoping to expand ALPR, so I probed deeper. I shouldn’t draw too much from the Privacy Impact Assessment, suggested Superintendent Diack. Between technology or program changes, he said, “Every two or three years there’s a new PIA...But it’s a horrendous amount of work doing those things...We usually contract it out.” When asked if the database contains personal information, he and Nelson said absolutely not. “All that’s in those hot lists is lists of numbers...and that image of the licence plate or the image of your car are in there, [but] neither are personal,” said Nelson. Contradictions emerged, though: They later explained they kept hit data for exactly two years because it was a requirement for police under the Privacy Act—but that requirement applies only to “personal information.” I read from the PIA hit list: Why were they tracking, say, people who went to court to get child custody? “That can’t be what it says,” responded Diack. “I think perhaps you’re not reading it the way it’s intended,” said Sgt Nelson. I wasn’t the only one wondering, though. When I’d read these sections to the federal Privacy Commissioner’s ALPR expert, she’d been surprised and directed me to Diack. Meanwhile, VicPD documents show BC’s assistant privacy commissioner expressing concern in 2010 and requesting “a list of the proposed [hit] alerts.” VicPD officials directed Taylor to ask Nelson, and there the paper trail ends. I requested written clarification. Nelson confirmed those four pages I had received described ALPR hits. He provided explanations: if you try to cross a border, police should know if you have legal custody of your child; if you’re seriously mentally ill you could be dangerous, etc. As for the non-hit data, Diack confirmed that, at the request of the federal Privacy Commissioner, it was no longer being retained. However, they’re planning to start tracking all of us again. “We’re now working on a new Privacy Impact Assessment in regards to being able to retain our non-hit data for one year,” said Diack. According to my fellow researcher and PhD candidate in surveillance, Christopher Parsons, last October, at a privacy conference, VicPD Chief Jamie Graham also publicly expressed interest in retaining ALPR non-hit data. Diack said he’d take seriously any concerns Federal Privacy Commissioner Stoddart’s office had with their plan; however, he added, “I’m not aware that we need approval of the Privacy Commissioner.” The real agenda and function creep Micheal Vonn, policy director for the BC Civil Liberties Association, has long been expressing concerns about surveillance. When I described our team’s efforts figuring out what was going on with ALPR, she commented, “It’s increasingly difficult to speak about getting information from the police, and I would say in particular the RCMP, without invoking either Lewis Carroll or Kafka...You get the sense that it’s strategic, that it’s tactical, that simply having nothing to have a debate about by moving the targets constantly and not providing transparent information is actually part of the program...If you’re not troubled by the surveillance technologies at issue, you should be deeply concerned about the citizens’ ability to understand what their government is up to.” Vonn disagreed with Diack’s lack of concern about the PIA’s differences from the program itself. “As you’ve discovered in your inquiries, it’s like trying to nail Jell-O to the wall. Trying to say, ‘What is it exactly that you’re proposing? What exactly is it that you’re doing?’...So the policy documents are incredibly important.” And if the RCMP hired an outside contractor to write their PIA, said Vonn, “Then you have to ask yourself, to what degree is it ‘baked into the system’? It just seems to be applied like icing on top. And what you’re discovering is, people don’t even know the content of it.” As for Diack and Nelson’s contention that the ALPR system doesn’t collect personal information, Vonn said, “What a pile of hooey. Personal information is any information that has the inherent ability to identify you personally...They’re not stopping the car because they think your neighbour is driving it.” The RCMP’s intent to keep all non-hit data for one year drew a silence. Then Vonn said, “Shocking…What essentially you heard from them is, ‘We want a massive surveillance system of all travellers on the highway that we encounter. We want an absolutely massive surveillance system of general population travel patterns.’ It doesn’t mean anything else.” She continued, “As an illustration of function creep, you have an absolutely brilliant illustration here...It means we go from instituting a technology that comes in through the back door of a pilot project, never properly debated up front…and the whole rationale is going to be stolen cars. And within how many months of the pilot, we’re already pushing for population-based surveillance...Now that as an illustration of function creep is about as tidy as it gets: ‘How about stolen cars? Oh, hells bells, how about everybody.’” Distracting police from real work? “I think people should be outraged,” commented my fellow researcher McArthur. “The public needs to know what’s going on...The concept that somebody’s going to record where I was, at a point in time, for no reason, with no probable cause, with no warrant, with no anything...And it’s not just me, it’s going to be thousands of people. Every day. It’s too much. It crosses a line...It’s not what I think we need, or is safe to have, in a democratic society.” How might BC’s ALPR system be used if the RCMP implement their plan? McArthur noted that typical commercial ALPR software boasts built-in tools for movement mapping, data mining, and intelligence analyses. People who live in high-crime areas or who have unusual travel patterns may be targeted with more suspicion, for example. But it could easily go further. “This isn’t just as simple as I collected a licence plate and I checked it against a database. It’s a geographic piece of information that says this person and this person were in the same place…And when you start doing social network analysis or group analysis, you can learn associations, you can start to make inferences,” explained McArthur. He added, “There are certain activities that need to be secret from the state. Meeting with a journalist. Organizing a trade union...This could be very dangerous in the wrong hands. Maybe that’s not today’s place, but what about 10 years from now?” Vonn agreed, adding that ALPR and other surveillance systems are notorious for drawing police away from traditional policing (following leads after a crime has been committed) towards intelligence operations. “So we’re not looking at a situation where we’re investigating a particular wrongdoing. We’re capturing data for a potential for wrongdoing,” Vonn explained. “That’s criminal intelligence...Essentially a mapping of the population with pre-crime in mind. We’re collecting data on you in case you are a criminal. We’re collecting data on you in case we need it later.” Information collected may also be used outside judicial processes, said Vonn, to build no-fly lists, intercept protesters going to protests or, as in Vancouver’s infamous program, prevent certain people from entering pubs. “And the reason you need to be worried even if you’re not a ‘bad guy’,” continued Vonn, “is because that’s not the criteria anymore. The criteria is whether or not you’re a risk...And what constitutes being a risk is something that’s a formula, an algorithm, a series of data points...You are a risk when you fly if any of the following gets checked off...It’s a kind of intelligence-generated slander...a prejudice generating machine...And your ability to defend yourself against surmise is extremely difficult.” However, the RCMP’s Privacy Impact Assessment states ALPR is “not to be used as an intelligence gathering tool.” “It’s not the intended use of this system,” confirmed Diack. “It’s to identify licence plates associated with criminality, people who have committed an offence or suspected of committed offences, so we can interdict them and act appropriately.” If RCMP retain the ALPR data on everyone, said Diack, then it could help active criminal investigations. Police could be allowed appropriately regulated access to a potentially rich repository of information about a suspect's prior movements. Even if Diack and Nelson have the best intentions, Christopher Parsons, my fellow researcher, commented, those aren’t inscribed in solid policy documents. So what might a future RCMP, other government agencies, secret services, or US Homeland Security do with detailed information on specific Canadians’ daily movements? “The fields, the things they’re looking for now, the things they’re recording now, the current data-sharing framework, that is what we see today. But there’s no reason to suspect or to believe that it will remain static. That isn’t the nature of these programs.” A good example is the Canadian Police Information Centre itself, designed as a shared repository of Canadian police records. Who envisioned its newest uses—US border personnel turning back Canadians with mental health incidents in their past (as Ontario’s Psychiatric Patient Advocate Office revealed recently), and local police tracking their movements via ALPR? And fluidity is already evident: Sgt Nelson contended, “Our information is our information and we don’t share it.” Yet the ALPR Privacy Impact Assessment states, “Eventually information may be shared, disclosed and retained internationally.” Who’s protecting us? Privacy expert Raymond Wacks writes that attacks on privacy have an “air of injured gentility” and often aren’t taken seriously in comparison to other social problems. Yet privacy, he points out, is the foundation of free speech, free association and equality before the law, and essential for our sense of freedom to be ourselves, for emotional release and sharing confidences and intimacies, and for test-running new ways of being. And while ALPR is just one of many surveillance systems encroaching upon us, it’s illustrative of the dearth of mechanisms in place to protect us. For starters, BC Civil Liberties’ Vonn explained, our legal limits on police rights to gather personal information are scant. “The police can collect information without consent for the purposes of law enforcement, or else they couldn’t investigate anybody,” said Vonn. “Does that mean they can film anybody and walk around behind them?...Anything a police officer does is for a law enforcement purpose?...What are the parameters? We don’t have any case law on that...I envision there being a [legal] challenge at some point, an inquiry or otherwise, into this kind of sweeping definition of what constitutes personal information collected for law enforcement.” Parsons added that police themselves have traditionally limited and prioritized their investigations, because they simply couldn’t afford to conduct unlimited investigations on everyone. Cheap, modern surveillance technologies remove that limitation. “The more you add efficient surveillance mechanisms,” said Parsons, “the easier it is to start hammering at those underlying assumptions, those underlying frictions that guarantee our freedoms.” And it’s nearly impossible for the public to hold police to account. Any agency can avoid releasing information for years. According to an Access to Information and Privacy source, federal agencies that repeatedly get annual poor grades from Treasury Board on meeting access-to-information responsibilities may simply be directed to hire more staff. BC’s rules are similarly anemic. Who else could help? Neither federal nor provincial Privacy Commissioners have enforcement powers. Consequently, a source in the federal office explained, they regard Privacy Impact Assessments as ever-evolving frameworks for discussion, and rely on collegial, consultative, cooperative relationships for any leverage they have. That’s likely why no official representatives from either office would speak to me about this controversial program, instead offering either cryptically crafted letters or “backgrounder” responses from unnameable sources. Treasury Board holds ultimate authority federally to ensure PIAs are up to date and programs comply with privacy law. Yet when I bluntly asked whether the RCMP’s PIA must reflect how the program actually works, a Treasury Board source answered that “it is the responsibility of each institution to determine how to develop and maintain these assessments” and directed me back to the RCMP. “I worry to think that we should be relying on the police to decide when and when not to surveil the public,” said McArthur. “It should be that you submit your PIA to the Commissioner for approval, get it approved, ‘Okay, you’re allowed to do that.’ And then when you want to do something else, you go back and say, ‘Here’s the updated one.’” Certainly, our governments must lay legal groundwork, and the 2009 Madrid Privacy Declaration, signed by privacy experts around the world, provides direction: “Noting with alarm the dramatic expansion of secret and unaccountable surveillance” threatening democracies world-wide, they call for “meaningful Privacy Impact Assessments that require compliance” and a moratorium on mass surveillance to allow for public debate. Parsons wondered why police aren’t collaborating with people like these. “It seems as though [civil liberties] advocates are seen as a problem, a potential issue that has to be resolved, rather than as collaborators to sit down and work with to safeguard Canadians.” Vonn similarly observed that police and politicians use the rhetoric of “Batman and Robin” and “good guys versus bad guys” so often to promote their agendas, that it makes critics seem antipolice, and sidesteps honest, transparent debate. “Of course we need policing,” said Vonn. “We need appropriate, responsible policing, and we need transparent policing, with civilian oversight...It’s a very basic democratic model. I think this retrenchment into ‘you’re for us or against us’ is deeply unfortunate.” Vonn added, “If we care about a free and democratic country, we’d better not allow an entire infrastructure of unaccountable surveillance to be built up around us as we are placated with Batman and Robin homilies.” WHEN MY RESEARCH TEAM REGROUPED, Kevin McArthur said, “I can’t say I know what’s going on.” Christopher Parsons noted: “The three of us are probably some of the most informed citizens on ALPR in Canada, and we’re still asking these [basic] questions. That’s absurd.” Examining it more closely for this article, I found my own best summary right in the RCMP’s Privacy Impact Assessment. In lengthy sections answering legal and policy questions, some pages declared, “No personal information is recorded during the ALPR operation.” But I found other pages declaring the opposite: “The only personal information stored in the ALPR database is the vehicle plate number.” So here we had Canada’s national police force addressing the key issues of privacy protection in the defining document for a massive surveillance program authorized by our federal and provincial governments...but had anybody other than us three even read this thing carefully? Holy lack of accountability, Batman. Rob Wipond has posted hundreds of pages from his access to information requests about ALPR.
  13. July 2011 There’s much to learn about BC’s laws and eldercare system from the last years of Kathleen Palamarek’s life in a local nursing home—especially from the battles that were fought in her name between her children, care providers and the Vancouver Island Health Authority. IT WAS A SMALL BUT IMPORTANT EPITAPH for a much-loved woman. NDP West Kootenay MLA Katrine Conroy spoke in the provincial legislature in June in support of a public inquiry into the recent “suspicious death” of Kathleen Palamarek, an 88-year-old resident of Broadmead Lodge in Saanich. During Lois Sampson née Palamarek’s five-year struggle to help get her mother out of the nursing home, Kathleen became an icon to local seniors advocates. That’s why the Saanich Peninsula Health Association, Vancouver Island Association of Family Councils, Old Age Pensioners Organization local, and others have been blitzing politicians, media and public agencies with requests for an inquiry. “[T]he suspected abuse was due to overmedication, and the family needs answers,” said Conroy. Yet the story involves much more than possible improper medicating; I’ve been following it since 2006. Kathleen’s life, and now death, is a tragic example of how our outdated guardianship laws summarily declare seniors “incapable” and thereby turn them into battle zones over which families, health professionals and others fight for control amidst an increasingly troubled eldercare system. Measuring incapability In BC, assessments about whether or not people are “incapable” of managing their own affairs are usually conducted by medical doctors. The final declaration occurs before a judge, but unless someone protests (and typically the person in question isn’t notified, so as not to cause him or her undue anxiety), that’s a rubber-stamping. Once deemed incapable under the BC Patients Property Act, you have no legal right to make any decisions. Those rights are transferred to a court-appointed representative, usually a relative or the Public Guardian. And here’s the kicker: BC capability assessments, from a scientific point of view, are a joke. The “Guidelines for Issuing a Certificate of Incapability Under the Patients Property Act” issued by the BC Public Guardian and Trustee states, “there is no standard procedure for carrying out an assessment.” In addition, their detailed 2009 report written by UBC expert Deborah O’Connor explains that the science of capability assessment is “under-developed” and there are no established best practices whatsoever. The “Mini Mental Status Examination” (MMSE), she writes, “is unquestionably the most widely used tool,” even though this crude 30-point cognition test involving counting backwards, repeating odd phrases, and drawing geometric shapes “was never intended...as an assessment of capacity.” O’Connor advises that tests like the MMSE are “often inappropriately relied upon” by physicians and courts who don’t recognize there’s “inadequate evidence” linking such tests with “actual behaviour” in the “real world.” O’Connor also explains that mid-range MMSE scores are especially unreliable—and that’s where Kathleen Palamarek usually scored. Dubious science, unchecked powers Kathleen PalamarekAfter being hospitalized with haemorrhaging from an apparent medication error in 2006, Kathleen was declared mentally incapable and eventually moved to Broadmead Lodge, while control of her affairs went to her son Ralph Palamarek, who had her signed Power of Attorney for finances and Representation Agreement for health care decisions. During this time, a history of conflict amongst Kathleen’s children escalated into frequent arguments, physical confrontations, and a prolonged court battle for legal “committeeship” or full guardianship authority over Kathleen under the Patients Property Act, with Lois on one side and her three brothers on the other. It’s clear from court documents that, generally, Lois wanted to care for her mother at her own home and distrusted the quality of life and care at Broadmead Lodge, while her brothers distrusted Lois and felt their mother generally had good care and a good life at the Lodge. There were serious differences: When Kathleen was agitated, was it due to a poor quality of life at the Lodge and side effects of medications, or due to Lois visiting too frequently and speaking ill of the Lodge? Was it a conflict of interest when lawyer Heather Fisher sometimes represented Ralph in disputes with Lois, while Fisher doubled as a director on Broadmead Lodge’s board? Was it necessary for Kathleen to be taking antidepressants, antipsychotics and benzodiazepine sedatives, all at the same time? The antipsychotics were of particular concern because Health Canada had warned about a doubling of death rates in elderly people with dementia, mostly from heart attacks (see “Crisis Behind Closed Doors,” Focus, June 2011)—Kathleen had dementia and a history of heart troubles. Meanwhile, a diminutive, deferential lady, Kathleen’s own feelings, and degree of ability to express those, also became matters of contention. MMSE results were the primary tests featured in assessments and court documents, although the underlying dubious science sometimes peeked through. Dr Art Prowse wrote, “Her mini mental status score of 27/30 suggests a higher level of function than she actually has.” Dr Dale Nicholl later scored Kathleen at 17/30 and cited that earlier 27/30 score as evidence that Kathleen had suffered “a significant decline in her functioning level” since then. Still later, VIHA psychiatrist Dr Michael Cooper scored Kathleen at 20/30—she lost the 5 points that would’ve graded her as normally functional by not being able to name the exact date. No scoring adjustment was made for the fact that she was living in an institutional environment with no strong reason to keep daily track of dates, nor for the medications known to negatively affect cognition and memory. Understandably, then, though everyone agreed Kathleen had poor hearing and some short-term memory problems, the question of the degree of her “incapability” became contentiously polarized and fuelled family conflict, especially when Kathleen began more frequently expressing to various parties her wishes to live with Lois. In an affidavit, Dr David Leishman at Broadmead Lodge described Kathleen as having “no understanding or appreciation for what is happening around her.” In her affidavit, retired nurse Carol Pickup, a seniors advocate who visited with Kathleen for years, conversely described Kathleen as having better and worse days, but generally as “well aware,” “coherent,” “quite savvy” and with “a good sense of humour.” A lengthy video of her mom in conversation in 2011 posted by Lois on YouTube certainly gives the impression Pickup had a better read. (http://www.youtube.com/watch?v=hrzngkyy6Ds) With Lois’ help, in 2007-08 Kathleen met quietly off and on with lawyer John Jordan. He concluded Kathleen was competent enough to give him instruction and consistent in her desire to do a new Representation Agreement naming Lois her health care representative. On October 28, 2008, Lois joyously took her mother home. The next morning while Lois, her husband Gil, Kathleen, and nurse and seniors advocate Lyne England were having tea, three police officers, two paramedics, and two emergency mental health response team members showed up at Lois’ door. Broadmead Lodge’s attending physician, Dr Nicholl, had issued an emergency certificate under the Mental Health Act to take Kathleen to the psychiatric hospital. “It was a nightmare!” declared England to me shortly afterwards. The Mental Health Act is the ultimate hammer in the doctors’ tool bag of draconian powers in BC, giving them the ability to instantly and indefinitely, without any judicial oversight, incarcerate and forcibly “treat” anyone for the “protection” of that person or others, or to prevent “mental or physical deterioration.” These broad, vague terms aren’t defined anywhere, so essentially they’re a blank cheque for doctors to seize control of virtually anyone’s life. Throughout all these events until today, the health professionals at Broadmead Lodge and VIHA have always portrayed themselves as “neutral” in what they describe as this “family conflict.” But behind-the-scene records revealed in court about the involuntary apprehension of Kathleen show how the health professionals’ powers have sometimes exacerbated and even played deciding roles in those conflicts. Use or abuse of power? VIHA records written by a staff member show Ralph had long been telling staff at Broadmead Lodge and VIHA that Lois was a volatile, physically confrontational and mentally ill person: “[Ralph] has said that sister has gone off her meds for Schizophrenia & has become more erradict [sic]... [Broadmead Lodge Director of Care] Fiona Sudbury has connected [with] their risk management team & consulted [with] legal advice as to this situation...” Ralph apparently described Lois as believing “pills are poisons,” and the notes variously imply Lois likely could not be trusted with Kathleen’s medications. According to Lois, her husband of 30 years Gil Sampson, and her family doctor who reviewed her medical records, she has never been diagnosed with schizophrenia and has no blanket dislike for medications. In response to Lois’ recent defamation lawsuit, Ralph has countered that, “in the past, [Lois] told members of her immediate family that she had been diagnosed with schizophrenia.” Regardless, Lois’ removal of Kathleen from Broadmead Lodge in October 2008 apparently ignited many of the health professionals’ prejudices and fears. Two days later, Giuseppe Scaletta, co-ordinator of VIHA’s Elderly Outreach Services, wrote in an email to senior VIHA doctors and staff, including Dr Michael Cooper and Dr Janet Mak, “The daughter who removed this lady from Broadmead has a history of schizophrenia and does not believe in medications... I believe that this is an abuse/neglect situation that warrants some intervention on our part.” Scaletta began the discussions suggesting the doctors do an independent “assessment” of the situation and decide what actions might be “appropriate,” but by the end of the discussions all pretence to objectivity seems to have been lost. “Here is our plan,” concluded outreach nurse Jessica Celeste. “The [Victoria Police Department] will meet Dr Mak and I in front of the building... We will then assess and request for ambulance to transport [Mrs. Palamarek] to [Royal Jubilee Hospital] for psychgeriatric [sic] assessment... She will then be transported back to the Lodge at Broadmead. Her son Ralph is aware. The Lodge of Broadmead’s Director of Care is aware of the same plan and will readily admit her.” It looked like an unequivocal plan for VIHA doctors and staff to neither question the portrayal of Lois they’d heard, nor uphold Kathleen’s own right to at least be independently examined for her current mental health status and ability to make decisions. And that’s pretty much what happened. On October 31, 2008, VIHA emergency psychiatrist Dr Janet Mak visited Kathleen at Lois’ home. She noted that Kathleen couldn’t name the exact date or the floor and suite number of Lois’ apartment, or say where her medications were. Despite the fact Kathleen had been at Lois’ apartment only about 48 hours, those observations were all Mak wrote to explain her conclusion: “Ms. Palamarek was not oriented to time or place.” Mak then described Lois’ behaviour at length: “Lois was quite involved during the interview. She requested me to leave my folder/portfolio on the table because it’s ‘too official’. She instructed me to speak slowly and loudly. Lois brought out Kathleen’s medications in a blister pack. She also showed me a box of nitro patch and a fentanyl patch. She requested me to note one used fentanyl patch as ‘evidence’ that she has been giving Kathleen her meds. Lois also reported I can speak to the pharmacist to confirm she has been giving Kathleen her meds as instructed.” While one might think Lois’ concerns for Kathleen’s anxiety and poor hearing, and Lois’ efforts to show that Kathleen’s medications were in order would reassure the doctor, especially considering the previous day’s email discussions in which Lois’ responsibility with medications was in doubt, the opposite seemed to happen. Mak commented cryptically, “Lois responded with this series of actions after I simply asked Kathleen to show me her meds.” Mak then added, “Collateral history indicates one is uncertain of the level of care Ms Palamarek is currently receiving,” and advised Kathleen be taken to hospital. At hospital, psychiatrist Dr Michael Cooper then conducted an MMSE and wrote up a five-page overview of Kathleen’s history and the family conflict. He concluded that Kathleen’s health and wellbeing would be best served on “neutral territory.” So Cooper then ordered that Kathleen be held at Broadmead Lodge, and he added a variety of other provisions to her “treatment plan” as previously requested by the Lodge’s director of care, including curtailing visiting rights of Lois, Gil or anyone connected with them. “I would hope that the Mental Health Act will be only a stopgap measure to ensure Mrs Palamarek’s safety until the guardianship issues are resolved,” he commented. Ironically, Cooper concluded that he did not want to see Kathleen be “a pawn in the disagreement between the two family groups.” So instead, he put her back to square one himself. A brush with death The oft-delayed, prolonged court case over who would have control of Kathleen concluded on February 18, 2011, with judgement pending. As of press time, Saanich police were still conducting an investigation into what happened next. On February 23, Lois, Gil and Pickup discovered Kathleen in a “semi-conscious state” at Broadmead Lodge, according to records filed with police. In her testimony, Pickup wrote that when they arrived, “I observed a dramatic change in [Kathleen’s] general condition since my visit on February 19th. She was almost totally unresponsive, moaning, and her colour was ashen.” A Broadmead nurse came in, wrote Pickup, “with a syringe of medication which he injected into a butterfly pick (sic) which had been inserted into her chest.” A butterfly, or intravenous PICC (peripherally inserted central catheter) is often used to directly pump powerful painkillers into a person to alleviate severe, intractable pain or during the final stages of dying. The drugs themselves can sometimes accelerate death. The three returned the next morning and found Kathleen in an even worse state. Panicking, Lois called an ambulance. According to the testimony of all three, a number of Broadmead staff tried to prevent the paramedics from seeing Kathleen, and became even more upset when the paramedics decided to take Kathleen to hospital. The ambulance attendants then determined Kathleen had indeed been receiving the powerful opiate hydromorphone. The paramedics began administering an antidote to the narcotic, and by the time Kathleen was at hospital she was awake and responsive. Ralph arrived and, according to Lois, Gil and Pickup, the doctor then said he’d received instructions from Ralph to conduct no further tests and Kathleen would be returned immediately to Broadmead. In the ensuing weeks, Kathleen seemed by the accounts of Lois, Gil and Pickup to be fine or even better than normal. In a March 17 letter, Lois, Pickup and England asked VIHA Chief Medical Health Officer Dr Richard Stanwick to investigate: “We believe that Kathleen Palamarek’s life has been, and continues to be, in danger.” On March 31, citing the history of Lois’ “disruptive behaviour” (the removal of her mother by ambulance, is one example given), Broadmead reduced the visiting hours of Lois and anyone associated with her to four hours per week total, and a security guard began to accompany their visits with Kathleen. Then, in an April 27 email to Lois, Ralph wrote, “Mom had a stroke today.” He added that Kathleen would be kept at Broadmead Lodge instead of being sent to hospital. “Mom is not in any life-threatening situation at this time.” On May 3, the court judgement granted Ralph full committeeship over Kathleen. On May 4, Ralph emailed to Lois that their mom “may have suffered a severe cardiac event sometime this morning.” That evening, Kathleen Palamarek died. Along with police, the Regional Coroner is now investigating. In an email, Broadmead Lodge CEO David Cheperdak wrote that, “privacy laws and respect for the confidentiality of our residents prevent me from commenting on any specifics related to Mrs. Palamarek.” “As this matter is unresolved, and litigation is on-going, neither Mr Ralph Palamarek nor I am prepared to make any comment on this matter at this time,” wrote lawyer Les Jamieson. Will a fair investigation occur? The issues in this long, complex story, many not even mentioned so far, expand far beyond the scope of ordinary police or coroner investigations. These include differences over appropriate nursing home staffing levels; mounting stress in our eldercare system; quality of mediation options and complaint processes within care facilities and health authorities; effectiveness of self-regulating health professions; access to appeals for involuntary apprehensions; regular use of drugs for behaviour control which can be fatal; influence of health professionals on police and lawyers; use of “comfort care” medications which may accelerate death; and most importantly, the crudeness of our legal framework which gives inordinate power to care providers. These issues also couldn’t be properly explored in the committeeship hearing, as Justice David Harris’ written judgement showed the focus was on simply deciding who was the best person to have authority over Kathleen. In that effort, it was sufficient for him to conclude that Ralph is “suitable” if not “perfect,” Lois is “rude,” “high-handed” and “aggressive”, and Broadmead Lodge “provides a safe setting” where Kathleen is treated by professional staff “in a dignified and respectful manner.” Yet the foundation of Harris’ conclusions was deeply and problematically embedded in that same legal framework and way of thinking that accepts health care professionals having enormous, unaccountable powers. For example, key aspects of the case turned on Harris’ decision that Kathleen had no right to even solicitor-client privilege—a stunning precedent undermining even further BC’s weak rights protections for those declared incapable. Harris also disparaged the main independent medical experts who criticized Kathleen’s medication regimes for not consulting closely enough with her treating physicians. And he criticized Lois for turning to two health professional disciplinary bodies, as if requesting the very independent investigations that do exist to hold our health professionals accountable is by definition harassment. The court case, then, is really just one more reason that a full, independent public inquiry into all these matters could be helpful. Improving the laws Still, it’s possible none of this would’ve happened if Kathleen Palamarek had been legally able to maintain control over her own life at a level more appropriate for her abilities. The siblings and health professionals, then, would have had much less to fight over. In that regard, legislation changes that have been held in limbo for several years could’ve helped. On September 1, BC will finally enact new legal tools to help people construct Advance Directives—documents that you can write ahead of time to guide your representatives’ decision-making more explicitly and with greater detail. Unfortunately, enactment of other parts of our new guardianship legislation has been postponed indefinitely. Those laws would require more sophisticated, lengthy capability assessments involving interdisciplinary teams working in consultation with relatives, and would allow for grey areas—for example, a person could be deemed incapable of handling their finances or living on their own, but still capable of participating in health care decisions. Jay Chalke, Public Guardian and Trustee, is frank about what’s holding up enactment of this important legislation. “The difference between the Patients Property Act and a modern guardianship law is akin to the difference between an on-off light switch and a dimmer switch,” says Chalke. To get the greater degree of nuance and personal tailoring in our lighting, he explains, “costs a lot more.” The current government doesn’t want to fund such teams or more complex processes of assessing people’s rights, he clarifies. So what is the projected cost? Four million dollars a year, answers Chalke. I gasp. So little to help ensure British Columbians retains the basic rights to control their lives that they deserve, and yet it won’t be done? “I certainly think it’s an expenditure whose time has come,” comments Chalke. Yet, another shadow still casts itself across all of this. Even if all these legal changes were implemented, all of your and your family’s wishes could still be trumped at any moment by a doctor using our draconian Mental Health Act. Thankfully, more people are beginning to show concern about that. Pointing to a case where antipsychotics were used as chemical restraints against the express wishes of an elder’s family, independent Cariboo North MLA Bob Simpson recently asked the government to investigate, amongst other eldercare issues, the “loophole” that allows health authorities to use the Mental Health Act to override other legislated rights. A government investigation is currently underway. Meanwhile, Lois Sampson is appealing aspects of the committeeship judgement. The Ombudsperson’s long-delayed report on seniors care, which will address legal issues, is also scheduled to be released this year. And perhaps the government can be stirred into conducting a public inquiry into the story of Kathleen Palamarek. (Correction: The print and earlier online version of this story incorrectly named Fiona Hunter as Broadmead Lodge’s Director of Care. Fiona Sudbury is Broadmead Lodge's Director of Care. Fiona Hunter is another lawyer from the law firm Horne Coupar who, along with Heather Fisher, represented Ralph Palamarek from 2007 to 2009.) Rob Wipond met Kathleen Palamarek and remembers her as warm, thoughtful and witty.
  14. June 2011 Data obtained through a Freedom of Information request show nearly half of all seniors in long-term care in BC are being given antipsychotics like Risperdal, Zyprexa and Seroquel. That’s almost twice the average for the rest of Canada and amongst the highest rates found anywhere in the world. And even though Health Canada warns these drugs cause a doubling of death rates in the elderly, care workers admit they’re mainly being used as chemical restraints in the absence of adequate staffing and proper oversight. “IT WILL RELAX YOU.” That’s the only explanation hospital staff gave when administering the antipsychotic medication to Carl. At least, that’s the only reason he recalls—soon he began experiencing “very strange cognitive feelings.” “I’m a reasonably logical person,” he says, but suddenly he was in a “swimmy universe that didn’t make any sense.” Carl (not his real name) became indifferent to his normal interests; inexplicably disengaged when friends visited: “like I was talking to them through a tunnel.” He felt as if he was in a “mind meld” with the Alzheimer’s patient next to him, losing his memory and connection to the world. Though he reportedly looked more docile, inwardly he was intensely disturbed. “I wasn’t relaxed at all.” Carl didn’t understand what was happening and assumed the serious physical illness for which he was receiving treatment was the cause. Yet his experiences come straight out of the clinical drug literature. A 2009 study of people’s subjective experiences with taking antipsychotics found many complained about “cognitive impairment” and “emotional flattening,” while few mentioned calmness or relaxation. Antipsychotics are a class of tranquillizing drugs routinely used to help rein in the minds of people diagnosed with intense schizophrenia. In recent years, they’ve been used increasingly (albeit usually in smaller doses) to “calm” elderly people with dementia in hospitals and long-term care facilities. Yet they’re hardly benign. Now widely described in medical literature as “chemical restraints,” common effects include foggy somnolence and disorientation, cognitive impairment, akathisia or “inner agitation,” extreme weight gain, diabetes, loss of muscle control, and muscle rigidity. Within a year of use, fully one-third of seniors will have Parkinson’s-like tremors from drug-induced brain damage. Within several months of use, death rates of seniors double—mainly from heart attacks. Fortuitously for Carl, one long-time friend visiting him daily happened to be a nurse. She knew his illness could’ve precipitated some temporary psychological slippage, but nothing like what she was seeing. “His personality was changing,” she says. “His cognitive level was changing in a downward spiral.” But hospital staff barely knew Carl except in this irrational, helpless state, so they told her she should prepare for her 65-year-old, recently retired friend to spend the rest of his days in a nursing home. After hearing of Carl’s story, I wondered: How many more like him are there? Half of all residents are given antipsychotics For two years, I tried to find out how many seniors in BC long-term care facilities were being given antipsychotics. Freedom of Information deadlines came and went. Not a single report, document, or email appeared. It seemed unbelievable that this number wasn’t known. Since 2002, Health Canada has been repeatedly warning doctors against using antipsychotics in seniors with dementia because of the doubling of death rates. Nevertheless, antipsychotic use in Canadian nursing homes has continued rising inexorably, and alarm has been spreading through the medical literature and media. In 2006, BC spent $76 million on antipsychotics, making them our fifth most expensive class of drugs (for comparison, that’s double the arts and sports funding in our provincial budget). Yet no one in BC’s health ministry had the slightest interest? Even my contact at the Office of the Information and Privacy Commissioner became frustrated with my persistence. “I can’t keep going back just telling them to search again,” he said. Repeatedly. And then in March of this year, it magically appeared (see downloadable document below). A provincial-wide analysis using PharmaNet data had been completed months before I’d first asked to see one in 2009. So now we know: Nearly half (47.3 percent) of seniors in long term care facilities in BC are taking antipsychotics. That’s close to double the US and Canadian average of 26 percent, and four times the rate of Hong Kong, which is at the low end of the spectrum. “Do we have any answers...as to why BC has a higher use of antipsychotics in LTC [long-term care]?” wrote Darlene Therrien, a health ministry research and policy director who was wondering if a methodological error could be producing such huge BC numbers. “I can’t see any issues in the data that would explain it,” emailed analyst Brett Wilmer. “I’m pretty sure it’s a health system phenomena...” When I received these documents, I requested interviews. Ministry of Health spokesperson Ryan Jabs emailed back, “I can’t find a person from the program area who is comfortable speaking with media on this topic.” So we’re left on our own to figure out what those BC health system “phenomena” are—and how dangerous they might be. Shocking lack of shock Why such shockingly high numbers in BC? Those statistics, after all, suggest that in the next six months alone, antipsychotics will kill more than one hundred South Island elders. Yet when I investigate, it seems I’m the only one who’s shocked. The Vancouver Island Health Authority lets me interview senior geriatric psychiatrist Dr Michael Cooper, Long Term Care medical director Dr Tom Bailey, and Long Term Care contract manager Norm Peters. VIHA won’t connect me with anyone who actually works in local nursing homes, though. So I dig up various health care assistants (HCA), licenced practical nurses (LPN), and registered nurses (RN) who’ll speak anonymously because they’re concerned about the issue. For outside perspectives, I contact UBC’s Therapeutics Initiative (a renowned independent research group which, as The Tyee has ably reported, the BC Liberals have threatened to gut at the request of pharmaceutical industry reps). The Therapeutics Initiative put me in touch with its pharmacy services director Dr Adil Virani and Vancouver General Hospital’s Dr Thomas Perry. All the physicians assumed from studies elsewhere that BC’s rate would be around 30 to 40 percent. “I wish I could say I was shocked,” comments one nurse. “But I’m not. It hurts me. It saddens me.” Many long-term care providers, in fact, suspect the number is low, and offer guesstimates for Greater Victoria like 85, 90 and even 100 percent. “Antipsychotics are a regular part of the medication routine,” says one LPN. “It’s almost an admission requirement.” “Show me the data,” responded a skeptical Dr Bailey to that, nevertheless conceding VIHA hasn’t investigated to find the actual rates. Regardless, even 47.3 percent is far too high, says Virani. “Those aren’t anywhere close to incident rates for diseases that you would typically want to use these drugs for. So it suggests to me that these drugs are often used as a chemical restraint.” And at 90 percent, he adds, “I would want to go into that setting and say, ‘What the hell is going on?’” The “benefits” of antipsychotics Most long-term care staff don’t equivocate on what the antipsychotics are being used for. There are no Norwalk-style epidemics of schizophrenia breaking out in our residential facilities. “It’s all for behaviour management purposes,” says an RN. “We have behaviours that are problematic, there’s no question.” VIHA’s Cooper, the geriatric psychiatrist, gives a more refined answer, saying antipsychotics can be “enormously helpful” for dementia patients in efforts “to reduce the fearful emotional state which may be associated with agitation and aggression.” In conjunction with that, VIHA’s Long Term Care medical director Bailey suggests our residents tend to be older, more physically dependent and suffering from more problematic dementia and dementia-related behaviours than in the past. Long-term care staff describe neck choking, broken bones, thrown objects, constant wailing, incessant wandering, verbal harassment, disorderly insomnia, and all other manner of disruptiveness, and say tranquillizing antipsychotics help prevent and manage such behaviours. For those reasons, many working in long-term care feel residents gain a higher “quality of life” from the drugs, and are less likely to have to suffer physical restraints. “They would have tremendous anxiety, agitation and distress if we were to take them off of those,” says one LPN. However, the science does not support most of these assertions about higher quality of life. There are good reasons almost no antipsychotics have ever even been approved by Health Canada for any uses in seniors with dementia. A 2010 Therapeutics Initiative report found certain antipsychotics “widely prescribed” as sleep aids “in the absence of evidence for effectiveness or safety.” A landmark 2006 US National Institute of Mental Health study, like a 2008 Cochrane Collaboration meta-review of all studies, found that for the vast majority of seniors with dementia, slight benefits of any kind from any antipsychotics were “offset by intolerability to associated side effects.” Besides, apart from being amongst the world leaders in antipsychotic use, Canadian nursing homes also still use physical restraints more than most—over three times as much as in US homes and five times those in Switzerland. And there’s been no demonstrable decrease of nursing home violence or injuries in sync with rising antipsychotic use. A 2010 International Journal of Geriatric Psychiatry study found preventing violence or helping patients feel better are not the real reasons the drugs are usually prescribed, anyway. “Noisiness/verbal aggression is increasingly associated with the use of regular antipsychotics, rather than physical aggression, agitation or irritability,” the authors stated. That 15-year overview, much like a study examining 485 Ontario nursing homes, found that there were huge variations in prescription rates across facilities, regions and years, and the rates bore no relationship to patients’ levels of dementia, dependency or disruptiveness. The authors concluded that “the use of antipsychotic drugs in nursing homes is greater and less systematic” than ever before. So what the hell is going on? Unclear decision-making processes Doctors prescribe antipsychotics in two ways. One is for regular daily intake. The other is called a PRN (from the Latin pro re nata) or “as needed” prescription, which is intended to be administered by carers in response to certain conditions or situations. VIHA’s Cooper says individual care plans have “specific indications for when a PRN dose would be used.” But long-term care staff say there’s enormous leeway, because the instructions they read often simply say general things like, “if agitation intervention is not effective,” “as needed,” or just “PRN.” In response to pain, discomfort, aggression, sleeplessness, anxiety or disruptive behaviours, says a nurse, “I have a shopping list of PRN medications I can use.” And decisions about how and when to sedate with antipsychotics are often heavily influenced by issues other than the good of residents. “I’ve seen nurses whose main goal is to get the person off every single medication they possibly can,” says an RN. “Other people just medicate ad lib and medicate just to have the person quiet, just to have the person out of the way, and if they’re semi-comatose that’s fine, they’re not bothering anybody.” A health care assistant describes a typical incident where a resident was “wailing” for no discernible reason, and was about to be given antipsychotics. Then she noticed the resident had bedsores on her back. “So I get her off her back onto her side, put a warm blanket there, brace a pillow behind her...I hold her hand and I talk to her, and she goes to sleep.” However, she continues, for that kind of caregiving, normally, “I don’t have time. In one of the facilities where I worked there were two staff and there were 50 residents [at night].” Along with pressures from understaffing, comments an RN about this story, growing legions of casual, rotating care workers (including RNs) rarely get to know residents well enough to make good assessments or effectively intervene in a crisis with such warm, personal familiarity. Indeed, many nurses say resident health records can’t even be maintained well enough in this context to understand residents’ true, often-changing circumstances and make good decisions about proper interventions. “The documentation is extremely crappy,” says one RN, echoing others. “Because there’s no time.” Antipsychotics, continues the RN, then often become the quick fix “Timmy Horton’s drive-through” solution to any crisis. Meanwhile, the physicians, many of whom only visit weekly or bi-weekly, rely on this same, weakening infrastructure of feedback. Consequently, one nurse explains, earnest doctors who wish to support harried staff are often most strongly influenced by whoever’s working and complaining loudest when they visit the facility. “The psychiatrist sort of is like a little pool ball that goes boing boing boing boing, based on whoever talks to him. They change medications, increase and decrease, and change it waaaaay too fast, before anything’s even evaluated or assessed.” Cooper says he hasn’t heard such concerns, but states, “These medications should only be used in a very narrow range of circumstances related to psychosis and management of aggression that has not responded to non-medication approaches. Our geriatric psychiatrists are endeavouring to apply those recommendations consistently.” Nevertheless, Cooper concedes his department is similarly too busy to examine if its psychiatrists are in fact collectively meeting those recommendations. “We’re on the ground trying to provide service to an enormously large number of nursing homes and nursing home residents, so we’re kind of run off our feet trying to make sure we provide the best possible clinical care.” Evidently, all of this is why the Journal of Geriatric Psychiatry study said that lightening the “burden” on carers while simultaneously developing “clear guidance” for improved drug and non-drug crisis interventions is “a matter of extreme urgency.” Dangers unknown Perhaps not surprisingly, then, along with disregarding the lack of scientific support for antipsychotics in their rush to solve problems with drugs, many professionals haven’t bothered to keep apprised of their dangers, either. For example, even though they were usually self-described to be more concerned and critical of the drugs than most, none of the long-term care staff I spoke to were even aware that Health Canada had issued warnings against seniors taking antipsychotics. Virani regularly gives talks to health professionals, and confirms he’s also seen “mixed” levels of knowledge about their dangers amongst doctors, long-term care staff and pharmacists. “For me that seems like they’re missing something,” he comments, “especially if they’re prescribing or handling these drugs.” VIHA’s Bailey is more circumspect. “It’s a very complex environment to be fully apprised of every single possible nuance of everything that you do.” Dr Perry of Vancouver General Hospital understands but still worries about such lack of professional knowledge. Particularly with antipsychotics, he says, because they’re notorious for inducing precisely what they’re often used to control: restlessness or agitation. “That one is important to understand for anyone in the field,” he says. “Giving more drug may increase the restlessness.” Worse, he points out, the “paucity” of expressiveness common in people on antipsychotics makes assessments of their well-being almost impossibly challenging. Which raises another pressing issue: What if you don’t want them? Offers you can’t refuse In these hectic environments, it’s easy to see how the preferences of residents themselves or their loved ones could be disregarded—a complaint that’s been emerging in media stories lately and frequently expressed to me. In principle, residents have the right to refuse these drugs or, if they’re not deemed competent (and Bailey says they are not “99 percent of the time”), legal guardians hold that right. However, while all the long-term care staff I spoke with routinely obtained consent from legal guardians for the use of physical restraints, none had ever done so for chemical restraints. And if doctors discuss it, claims one LPN, they won’t say they’re chemically restraining your loved one, “They’ll say, ‘It will keep them calm and comfortable, and they’ll settle in more easily.’” Bailey, VIHA’s Long Term Care medical director, says those rules are being tightened. VIHA has a policy to “use the least restraint possible,” but following a 2010 directive from the BC Ministry of Health, VIHA recently issued more details and a consent form mentioning chemical restraints. “The newer rules will ensure that there is more transparency,” says Bailey. “They’re not going to overlook informing family, because it’s required.” However, there’s a gaping loophole. The policy defines a chemical restraint as any drug used to tranquillize a person’s behaviour and that “is not needed to treat medical or psychiatric symptoms.” Dementia-related behaviours, of course, are virtually always considered to be both medical and psychiatric symptoms. “If [an antipsychotic] was prescribed as part of a regular care plan,” confirms Peters, VIHA’s Long Term Care contract manager, “it may not be considered to be a restraint.” And if at that point you try to refuse, you may be perceived to be denying appropriate medical treatment and deemed incompetent to continue as legal guardian. “I know from personal experience how abusively RNs and health authority bureaucrats have used antipsychotics, especially with their absolute sense of entitlement to do so,” declares one woman to me, who’s now taken a battle over her mother’s care to the Health Professions Review Board. So essentially we’re forcing seniors and their families to accept this massive drugging campaign, even when the science and our own health regulator are warning it’s dangerous and misguided. Once again we have to ask, what the hell is going on? How did this monstrous fad get started? Well, there appear to be billions of explanations. Billions of reasons Most antipsychotics aren’t legally approved for use in dementia patients. Although individual doctors have some discretion to prescribe drugs as they deem suitable, it’s illegal for pharmaceutical companies to promote such “off-label,” unapproved uses. Companies do it, though. With seditious creativity. And they’ve made their antipsychotics into multibillion dollar cash cows largely by spending untold sums persuading health professionals they’re safe and effective for dementia patients in nursing homes. Settling the ensuing lawsuits seems to have become just part of the business plan. In the US, AstraZeneca has settled innumerable lawsuits worth hundreds of millions of dollars with individuals and governments for hiding the dangers of their antipsychotic and illegally promoting its use for dementia patients. Pfizer and Eli Lilly both settled similar massive lawsuits, while Bristol Myers Squibb was additionally caught giving kickbacks to nurses and physicians for prescribing their antipsychotic. Johnson & Johnson was also caught giving tens of millions of dollars in kickbacks to pharmacies such as Omnicare. All of these companies, including Omnicare, operate in Canada. Queried about it, Health Canada issued this written response: “Health Canada is aware of the litigation involving off-label promotion of antipsychotic drugs in the US. We have no evidence of similar issues in Canada—that is, no systematic promotion of off-label use of antipsychotic drugs has been reported to Health Canada.” Yet VIHA allows pharmaceutical reps to visit its facilities, as long as they get an appointment. Dr Cooper admits to meeting with pharmaceutical reps regularly when in long-term care practice in Penticton five years ago. Perry refuses such visits at Vancouver General Hospital, but promptly recounts how just recently two nurses told him about attending free dinners sponsored by AstraZeneca. It seems naive to imagine that pharmaceutical companies simply play nicer here. If anything, Canada’s lack of whistleblower protections, poor record on investigating white collar crime, anaemic RCMP, and close-knit ties between pharmaceutical companies, researchers, health professionals and regulators have likely made us more gullible victims. Changes ahead? To a degree... Everyone I spoke with agrees we need to cut back on antipsychotic use in nursing homes—but with somewhat differing levels of, well, zeal. “That’s really the big debate when you do a talk on this,” confirms Virani. “They’ll say, ‘Okay, Adil, I understand we shouldn’t use these drugs. Give me another solution.’ And that’s where it kind of falls down...In lieu of enough staffing, and in lieu of a safe environment, [antipsychotics] seem to be the best choice.” VIHA’s Bailey is cautious. “It would be a fair statement to say that we would like to see fewer people on them,” he says. “But when you look at many [situations in which antipsychotics are being given] they may well, at least in the short term, be justifiable. In fact, it is my guess that the majority are.” He suggests, though, there may be some percentage who could be taken off them “as soon as is practical.” Dr Perry conversely argues that antipsychotics should strictly be used in emergencies to temporarily subdue a person engaged in physical violence. “The side effects are so potent,” he says, “their use in [anything other than schizophrenia] should be very, very tightly limited.” What about drugging to prevent people from becoming violent? “The prevention against that ought to be multidimensional,” Perry responds. He describes a dementia patient who lashed out whenever someone peeled back the privacy screen while he was peeing. Why drug him, he asks, instead of avoiding humiliating him? “In a sensible system, everyone would be looking for hazards and attempting to remove them.” “Every behaviour has a reason behind it,” agrees an LPN. Therefore, care providers need more training in alternative approaches to using chemical restraints, she argues, but “VIHA doesn’t believe in that.” Although some changes, apparently, have gotten rolling. In VIHA’s new guidelines, there’s a page suggesting various assessment procedures and non-drug interventions before proceeding to chemical or physical restraints. (However, by comparison, Vancouver Coastal Health issued eleven pages on antipsychotic restraints alone, including minimal dosage recommendations, creative alternatives, and warnings about carers’ “poor adherence” to alternative forms of crisis intervention.) Peters feels an internationally recognized “residential assessment indicator” tool that’s been newly instituted in BC should help assess patients’ need of an antipsychotic. Bailey says VIHA has begun developing an overarching long-term care medical advisory council. “It will be the first time we’ve had a structure that will enable us to address particularly critical issues and develop standards of care for our facilities.” Pharmacy by-laws mandate long-term care patient medication reviews every six months, but currently they’re often done cursorily by mail or fax rather than in multidisciplinary teams, in person, like they ideally should be. Bailey hopes to “develop some better processes to ensure that actually happens.” Meanwhile, this April, our provincial government issued a request for proposals to review antipsychotic use in long-term care. “The media has raised concerns about the use of antipsychotics in long term care facilities,” the backgrounder stated. “Their concerns focus on whether appropriate consents are being obtained...and whether these medications are being used as chemical restraints due to insufficient staffing.” The review is due at the end of June. Most carers, though, feel they know already what’s needed: More staff, more stable staffing, and better trained staff. Plus better environments. One RN describes a large Calgary facility with walkways, vegetation, benches and fountains. “The residents walked [a lot], they slept at night, there was almost no use of antipsychotics.” Carl awakens Back in hospital with Carl, though, his nurse-friend was “horrified” to find him one day tied in four-point restraints, and still being pumped up on a “calming” drug that was, evidently to her, making him increasingly confused and agitated. Partly due to her pleading, he was experimentally taken off his antipsychotic prescription after three weeks. “Within days, I was back to normal,” Carl says, even though it would still be weeks more before he’d emerge from his physical illness. “I was laughing and joking with the nurses, I was carrying on normal conversations with my friends...It was like I woke up...I remember wanting to connect, I started to want all the familiar things in my life.” After a year back at home on his own, Carl praises the “excellent care” he received in hospital, with this one notable exception. “Had I not been fortunate enough to have a friend who was not only an advocate for me but a registered nurse, there’s every possibility I might have continued to receive those drugs and have been placed in a permanent facility out of my mind for the rest of my life.” Rob Wipond is a finalist in this June’s Western Magazine Awards for his regular Focus column. He has been a freelance writer of magazine features, news articles, political commentaries, social satires, theatre and performance art for over two decades.
  15. Out of sight from parents and the general public, school teachers and administrators are waging an increasingly tense battle over children with special needs—and the outcome could influence the future of public education. IT'S DISCOURAGING. It’s depressing,” says Julia Christianson, a special education teacher at Cedar Hill Middle School. “I have many parents cry on my shoulder. And many times I ask myself, ‘What else can I do?’” Now, like many teachers, Christianson is protesting publicly. And it’s not about pay, benefits, or holidays; it’s about “class size and composition.” Just a fuzzy phrase to outsiders, it’s gradually become a flashpoint for public education. In 1987, BC held a Royal Commission into class size and composition. In the 1998 collective agreement between the British Columbia Teacher’s Federation (BCTF) and NDP government, no salary increases were included, but class size concessions were. (Kindergarten classes were limited to 20 students, and Grades 1-3 to 22 students.) In 2001, the Liberals ripped that agreement up. Then in 2006 they created Bill 33 to deal with class size and composition. Many say that “solution” is creating a crisis. Bill 33 establishes recommended class size limits for all grades. The Greater Victoria School District (GVSD) has very few classes that surpass those limits, and most aren’t controversial. However, Bill 33 includes a related, more controversial provision: If more than three students with “special needs” and an Individual Education Plan (IEP) are enrolled in a class, the school principal and district superintendent must agree the class is still “appropriate for student learning.” And they must at least “consult” with, but not necessarily obtain the consent of, the teacher involved. This is the “composition” component of the class size issue. Special needs students can vary from a child with poor hearing to a severely learning-disabled child with chronically disruptive behaviour. When a child is tested and officially “designated” with specific special needs, the teacher develops an IEP. Then, that child may or may not be eligible for some extra support from some kind of teaching assistant. Obviously, many children with special needs don’t require a lot of extra help or cause problems in class; nevertheless, the numbers and types of special needs can often make a significant difference in how challenging a class is to manage, depending on how much extra support the teacher gets. Tara Ehrcke, President of Victoria’s BCTF local, illustrates: “Imagine a class with one student three years behind in reading comprehension, two more one grade level below in numeracy skills, a gifted student, two students with English as a second language, a child with a learning disability, and one diagnosed on the Autism spectrum... Each child requires materials, lessons, strategies and assessments tailored to their unique learning needs.” Christianson describes one of seven Cedar Hill classes for which she was the only secondary support last year: Ten students requiring no extra interventions, eight requiring moderate amounts of learning or behaviour intervention, and nine requiring serious, ongoing learning or behaviour interventions. “That teacher was just unbelievable; I bow to him,” says Christianson. “And this is Cedar Hill; this is not inner city. We are not considered a high needs school.” According to 2009 BC Ministry of Education statistics, in grades 4 through 12 in Greater Victoria, there were 318 classes with four or more students with an IEP—meaning about 21 percent of all classes were breaking Bill 33’s recommended class composition limit. That’s slightly worse than the provincial average, but no one thinks this problem is unique to Victoria; it’s epidemic. Funding Squeeze Although the BC Liberals have made “highest funding ever” their buzzword for education, that fact disguises the truth. The provincial education budget remained fairly steady from the 1980s to 2000 as a percentage of BC’s gross domestic product (GDP) and overall tax base, at around 4.8 percent of GDP. Since the Liberals came to power, the education budget has dropped to 3.7 percent of GDP, while GDP growth itself has slowed. So the overall dollar amounts have indeed gone up but, between rollbacks, inflation and commitments to teacher salary increases the Liberals made, the net negative impact on school boards’ operational budgets has been dramatic. And since special education staff are technically classified “non-essential,” like librarians and counsellors, they’ve borne the brunt of cutbacks. Simultaneously, the province has largely eliminated targeted special needs funding, and instead expects school districts and principals to figure out ways to help special needs students from their main operational funding stream. In that context, funding for special needs students has become impenetrably complicated. Although individual teachers can see how much support specific students are getting, there’s no clear way to calculate how much funding is going into special education across the district, in individual schools, or to disability subgroups. Currently, for example, autism designations automatically kick in some extra funding and assistance; learning disabilities do not. So one school may put an autistic child with two learning disabled children, expecting the autistic child’s educational assistant to help the learning disabled children in her downtime. Christianson broke down the numbers for the classes she served last year: apart from their normal classroom teacher, students identified with special needs were receiving on average a miniscule 18.6 minutes per week of extra support. Many local teachers report that’s not atypical. “It’s hard,” says Christianson. “It’s hard working with the parents who’re saying, ‘Please, how can you help my kid?’ And I’m saying, I don’t have any [educational assistant] help for your kid. I don’t have anything else I can give your kid. Children with special needs are not getting the education they’re entitled to.” Compounding all this, there’s another 10-15 percent of students considered “grey area”—they’re stuck on expanding waitlists for testing or don’t have one specific, identifiable special need, but in practice, they’re still having, or causing, problems in classes. Consequently, many teachers feel overwhelmed and spread too thin. “When the needs of special needs children are not being met,” explains Christianson, “it has an effect on the entire classroom.” What’s “appropriate”? Twice yearly, all this comes to a head when Greater Victoria School District superintendent John Gaiptman reports on class sizes and composition to our elected school trustees for their stamp of approval. By that time, Gaiptman will have consulted with teachers and principals as Bill 33 requires him to, and personally permitted as “appropriate for student learning” every class with four or more students with IEPs. How is it done? “We don’t discriminate,” Gaiptman emphasizes, aware that Bill 33 runs uncomfortably close to legislating prejudice against children with special needs—a reason many parents dislike it. “We don’t turn away students from a class just because they have an IEP.” Victoria has a Bill 33-exempted, segregated school for children with special needs, but most parents and educators prefer integration. That, though, puts pressure on schools to provide extra supports throughout their programs. So Gaiptman, the principal, and the teacher involved pore over the class list, and the question becomes, “Does a specific class with certain students with certain needs require any extra teaching support?” “We work very, very hard to do, within our budget, the best job possible. This isn’t one side versus the other. What everybody in our school district wants is the best possible education for all students,” explains Gaiptman. “I want to make sure that each class is a good learning environment. And I know it is subjective.” “Subjective” may be a diplomatic way of summarizing the differences. Last October, special ed teacher Christianson gave an impassioned speech to the trustees ahead of Gaiptman’s report. “Not one of my classrooms in my opinion was appropriate for learning,” says Christianson. “Every single one of them in my mind had too many kids that had some really, really important needs in order to get a fair education, and no extra assistance except for their teacher.” And Christianson’s only the tip of the iceberg. Gaiptman concedes “the vast, vast majority” of teachers he consults with disagree when he concludes they don’t need extra support. Victoria’s BCTF president Ehrcke highlights teachers’ frustrations: “I am not aware of a single principal in this District ever saying a class was not suitable for student learning. Yet hundreds of teachers do... In four years of this process, I am only aware of a single example where an extra class was added in response to a consultation meeting.” The BC School Act provides for the Education Minister to appoint a special administrator if a school district is apparently not complying with the class size provisions. Last year, against a backdrop of litigation and political tussling, appointed arbitrator James Dorsey reviewed 1,622 class size and composition grievances from teachers around the province. Significantly, when grappling with his mandate, Dorsey cited the union’s criticism that Bill 33 didn’t define what “appropriate for student learning” even meant. However, Dorsey generally sided with the employers’ argument that this ambiguity was deliberately intended to allow principals and superintendents to effectively decide whatever they wanted “without any restrictions or criteria.” (Consequently, Dorsey focused strictly on issues of legal process in a small, representative sampling, and found that in about 25 percent of cases principals and superintendents did not even conduct reasonable consultations with teachers.) Small wonder, then, the situation is polarizing. So Christianson gave her presentation hoping the trustees would reject Gaiptman’s report, and instruct him to revisit problems. She also hoped the trustees would follow the Vancouver board of education. Vancouver trustees recently submitted a budget to the province that illegally ran a deficit, telling the Liberals they simply could not provide passable education services with the money they were being given. In the highly publicized struggle, a “special advisor” was parachuted in, the elected board was nearly replaced by government appointees, and a tug of war began about how to make up the shortfall. Of Victoria’s nine trustees, though, only stalwart Catherine Alpha (who’s also a teacher in Sooke) took the political risk and voted against accepting Gaiptman’s report. “I would like to have seen all the trustees vote against it, but then refuse to send the superintendent back to make it work,” explains Alpha, clarifying that her intent was to take the fight straight to Minister of Education Margaret McDiarmid. Describing the situation for special needs kids in her own class, her voice breaks; but then Alpha gathers herself: “Our programs are so tooth and bone that it’s beyond what is educationally sound.” Christianson gives a blunt assessment of most of the rest of the board: “I don’t think they care. I think they care about the bottom dollar.” Are we being told the truth? For his part, Gaiptman reveals skepticism about the teachers’ and union’s positions. “I think that it’s important to know that there’s also a feeling out there [amongst teachers] that says, ‘If we agree [that our students don’t need more support], then we’re never going to get more money for education,” he remarks. “So there’s strategy behind it, too.” Dorsey similarly noted some school boards felt the BCTF was deliberately jamming “the true spirit of consultation” to put pressure on the government. But Dorsey concluded he saw “no evidentiary basis” for asserting teachers weren’t speaking their own minds. And Gaiptman does acknowledge he sees a real problem. “I’m not going to be honest with you if I don’t say, if I had more money, would I use it on class size? Yes.” Still, parents, and the general public, aren’t hearing this message very strongly, or very often. Why? According to Ehrcke, one local teacher recently tried to publicly protest his class composition, and “the board threatened to discipline him.” The union won’t breach confidentiality, and Gaiptman bristles about the topic, but it doesn’t take much investigating to see the outlines of what apparently happened. Last year, the BC Teachers Federation drafted a template letter for teachers to send to parents if, after the usual “consultation,” the teacher still had concerns about the class size and composition. The letter informed parents that, despite the opinions of the principal and superintendent, the teacher felt his or her class was “not suitable for student learning.” It advised parents they could raise concerns with the principal, superintendent or trustees. The British Columbia Public School Employers’ Association (BCPSEA) representing school boards countered with a template letter for principals and superintendents to give to union reps and teachers. The BCPSEA’s letter explained that publicly challenging the opinions of the principal and superintendent would “constitute a breach of the teacher’s legal duty of loyalty towards the district as his/her employer” and inappropriately “undermine public confidence in the public education system.” The BCPSEA letter continued threateningly, “I trust that you will rescind or amend your intended correspondence... to ensure that you do not unnecessarily put your members at risk with respect to their employment...” Reasonable or not, it throws the taxpaying public into the dark. And it’s particularly concerning when its intent is to conceal the truth. The minutes of that October meeting, for example, couldn’t be clearer about what the GVSD board actually feels about class size and composition: “Trustees thanked teachers, principals and the Superintendent for doing the best that they can within the guidelines of the Bill 33 legislation. There was overall agreement that the provincial government is failing the public education system by not providing adequate funding...” In this light, the perspective of BCTF’s Ehrcke takes on heightened import: “We feel very betrayed by principals, trustees and superintendents for not speaking out and acknowledging that many of these classes are not appropriate for student learning.” “The information has to get out and we have to save public education,” says Alpha. “Because when you don’t have equal access to quality education, then you don’t have equal access to your democracy.” So how much are our most vulnerable children actually being harmed? No one knows. Gaiptman concedes there’s no statistical tracking of education outcomes for special needs children going on. Christianson, the special education teacher, sees this as part of the mounting problems in our education system. “It’s come to the point that nobody wants anybody to know what the truth is,” she says. Rob Wipond has been a freelance writer of magazine features, news articles, political commentaries, social satires, theatre and performance art for over two decades.
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