This publication is the result of an investigation by the University of Toronto’s International Human Rights Program (IHRP) at the Faculty of Law and the Citizen Lab at the Munk School of Global Affairs & Public Policy. Authors: Kate Robertson, Cynthia Khoo, and Yolanda Song Research Principals: Yolanda Song and Cynthia Khoo Design and Illustrations: Ryookyung Kim Copyright © 2020 Citizen Lab (Munk School of Global Affairs & Public Policy, University of Toronto) and the International Human Rights Program (Faculty of Law, University of Toronto), “To Surveil and Predict: A Human Rights Analysis of Algorithmic Policing in Canada,” by Kate Robertson, Cynthia Khoo, and Yolanda Song. Document Version: 1.0 Licensed under the Creative Commons BY-SA 4.0 (Attribution-ShareAlike Licence) The Creative Commons Attribution-ShareAlike 4.0 license under which this report is licensed lets you freely copy, distribute, remix, transform, and build on it, as long as you: • give appropriate credit; • indicate whether you made changes; and • use and link to the same CC BY-SA 4.0 licence. However, any rights in excerpts reproduced in this report remain with their respective authors; and any rights in brand and product names and associated logos remain with their respective owners. Uses of these that are protected by copyright or trademark rights require the rightsholder’s prior written agreement. Electronic version first published by the International Human Rights Program and the Citizen Lab in September, 2020. This work can be accessed through https://ihrp.law.utoronto.ca/ and https://citizenlab.ca. Acknowledgements The International Human Rights Program and the Citizen Lab wish to express their sincere gratitude for the support from many people who made this work possible. This report was researched and written by Kate Robertson, criminal defence lawyer and Citizen Lab research fellow, Cynthia Khoo, Citizen Lab research fellow and technology and human rights lawyer, and Yolanda Song, lawyer at Stevenson Whelton LLP and pro bono research associate at the IHRP. Primary data collection governed by the research protocol for this report was carried out by Yolanda Song and Cynthia Khoo. This report was undertaken under the supervision of Professor Ronald J. Deibert. The report was reviewed by Ronald J. Deibert, Professor of Political Science and Director of the Citizen Lab; Christopher Parsons, Senior Research Associate at the Citizen Lab; Petra Molnar, acting Director of the IHRP; and Samer Muscati, former Director of the IHRP. The authors of this report are grateful to have received further detailed input, guidance, and support from Christopher Parsons. The authors owe a significant debt of gratitude for, and deeply appreciate, the invaluable insights and advice from the following external reviewers (presented alphabetically by last name): Vincent Chiao, Associate Professor at the University of Toronto Faculty of Law; Lex Gill, Associate at Trudel Johnston & Lespérance and Research Fellow at the Citizen Lab; Tamir Israel, Staff Lawyer at Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa, Faculty of Law; Emily Lam, Partner, Kastner Law; Brenda McPhail, Director of the Privacy, Technology & Surveillance Project at the Canadian Civil Liberties Association; Noa Mendelsohn Aviv, Director of the Equality Program at the Canadian Civil Liberties Association; Jill Presser, Principal, Presser Barristers, and Osgoode Hall Law School, Adjunct Professor; Rashida Richardson, Director of Policy Research, AI Now Institute at New York University; Teresa Scassa, Professor and Canada Research Chair in Information Law and Policy at the University of Ottawa, Faculty of Law; and Valerie Steeves, Professor at the University of Ottawa Faculty of Social Sciences, Department of Criminology. This report was copy-edited by Joyce Parsons, Principal of Stone Pillars Editing and Consulting, and fact-checked by Mashoka Maimona, a law student at the University of Toronto. The cover art and design for the report was completed by Ryookyung Kim. The authors would particularly like to thank University of Toronto law students Julie Lowenstein and Solomon McKenzie for their valuable research assistance throughout this project, and they are grateful to law student India Annamanthadoo for her contributions as well. The authors further extend gratitude to the numerous subject matter specialists and expert stakeholders who provided their insight, feedback, and time in the development of this report through informal consultations with the authors and formal research interviews. The authors are also greatly appreciative of the participants of the March 2019 symposium, “Automated Decision-Making in the Criminal Justice System,” co-hosted by the Law Commission of Ontario, the Citizen Lab, the IHRP, and the Criminal Lawyers’ Association, for their engagement and views on the issues raised in this report. The Citizen Lab would like to thank the following funders for supporting this research: the John D. and Catherine T. MacArthur Foundation, the Sigrid Rausing Trust, the Ford Foundation, and the Oak Foundation. This research was also supported in part by a grant from the Open Society Foundation. The International Human Rights Program (IHRP) would like to thank the Law Foundation of Ontario for supporting this research. About the Authors Kate Roberson is a criminal defence lawyer at Markson Law in Toronto and a Citizen Lab Research Fellow. Her criminal defence practice includes both trial and appellate work, focusing on a range of criminal law cases, including white-collar crime, sexual offences, and computer-based investigations and crime. She previously acted as a provincial Crown prosecutor in Ontario and as a Law Clerk at the Supreme Court of Canada. She holds a J.D from the University of Toronto, Faculty of Law. Cynthia Khoo is a Research Fellow at the Citizen Lab and a technology and human rights lawyer. She holds an LL.M. (Concentration in Law and Technology) from the University of Ottawa and interned as a research student and junior counsel at the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. Her work spans across key areas of digital rights law and policy, including privacy, surveillance, intermediary liability, freedom of expression, equality, and technology-facilitated abuse. Yolanda Song is a civil litigation lawyer at Stevenson Whelton LLP in Toronto. Her practice includes government litigation and general administrative and constitutional law. Yolanda worked as the William Graham Research Fellow at the International Human Rights Program at the University of Toronto, Faculty of Law, and she continues to work as a pro bono research associate for the IHRP. She holds a J.D. from the University of Toronto, Faculty of Law. About the International Human Rights Program The International Human Rights Program (IHRP) at the University of Toronto Faculty of Law addresses the most pressing human rights issues through two avenues: The Program shines a light on egregious human rights abuses through reports, publications, and public outreach activities, and offers students unparalleled opportunities to refine their legal research and advocacy skills through legal clinic projects and global fellowships. The IHRP’s fundamental priority is impact: The Program strives to equip students and recent graduates with the skills, the knowledge, and the professional network to become effective human rights advocates. The Program also seeks to address human rights violations in Canada and abroad by engaging in comprehensive research and advocacy that aims to reform law, policy, and practice. About the Citizen Lab The Citizen Lab is an interdisciplinary laboratory based at the Munk School of Global Affairs & Public Policy, University of Toronto, focusing on research, development, and high-level strategic policy and legal engagement at the intersection of information and communication technologies, human rights, and global security. The Citizen Lab uses a “mixed methods” approach to research, combining practices from political science, law, computer science, and area studies. Our research includes: investigating digital espionage against civil society; documenting Internet filtering and other technologies and practices that impact freedom of expression online; analyzing privacy, security, and information controls of popular applications; and examining transparency and accountability mechanisms relevant to the relationship between corporations and state agencies regarding personal data and other surveillance activities. Corrections and Questions Please send all questions and corrections to the authors directly at: [email protected] [email protected] [email protected] Suggested Citation Kate Robertson, Cynthia Khoo, and Yolanda Song, “To Surveil and Predict: A Human Rights Analysis of Algorithmic Policing in Canada” (September 2020), Citizen Lab and International Human Rights Program, University of Toronto. Table of Contents 1 Executive Summary 8 1. Overview and Background 8 1.1. Introduction 11 1.2. Methodology 11 1.2.1. Data Collection 14 1.2.2. Legal Analysis of Collected Data 15 2. Social and Historical Context 15 2.1. Criminal Justice and Systemic Discrimination in Canada 18 2.2. Bias and Inaccuracies in Police Data 26 In Focus #1: Community Perspectives on Algorithmic Policing 29 3. What Is Algorithmic Policing? 29 3.1. A Technical Primer 33 3.2. What Makes Algorithmic Policing Different? 36 4. Algorithmic Policing