Canadian Lawyer

June 2009

The most widely read magazine for Canadian lawyers

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opinion BACK PA GE BY EZRA LEVANT The butterfly effect sometimes even photographing the guests themselves. The information is shared among other Bar Watch clubs, the same way casinos in Las Vegas share information about troublemakers or cheaters. It's a popular system where gangs B are a problem, like Vancouver. And now Calgary is trying it out. Do you have privacy concerns about having your photo or other vital statis- tics copied down? Fine, then don't go to the club. It's a property rights issue: if you don't want to abide by the rules of the house, don't go into the house. It's like the sign at the airport says: if you don't want to have your luggage searched, no one's forcing you to fly. But if that's all Bar Watch was — an expanded ID system at the door and a mutual aid society among clubs — there wouldn't be a problem. (Actually, there was a problem. Last year Alberta's privacy commissioner ordered Calgary clubs to stop scanning drivers' licences, saying there was "no reasonable purpose for doing so" — even though participating clubs said violence had dropped by 77 per cent. Speaking of privacy, one might have asked the privacy commissioner why he was nosing into the private affairs of nightclubs.) Alberta has now introduced legislation to permit such screening. But the proposed law, bill 42, doesn't just permit the collection of customer data. It gives police enormous new powers to eject patrons from bars, without any cause known in law. It's classic big government. The province of Alberta was outraged when bar owners merely wanted to check patrons' IDs. But the province is granting itself extraordinary powers to forcibly remove people from those premises without cause or even the owners' consent. Bill 42 is a study in flawed legislation just begging to be abused. It grants police new powers to manhandle anyone guilty of the crime of being in a gang — and it helpfully defines a gang as anyone "creating an atmosphere of fear." So nothing illegal, nothing specific — not a fear of assault, or fear of rob- bery. Just people who make you afraid. Just in case that isn't vague or broad enough, the law goes further: if you merely are "in the company" of a person who is in a gang, you're a target for police under the new law, and 50 JUNE 2009 www. C ANADIAN Law ye rmag.com ar Watch sounds like a good idea. Owners of participating bars and night- clubs scan the ID of patrons, police have a right to forcibly eject you from any bar for that reason alone. No bad behaviour is neces- sary. You don't even have to be a mem- ber of a gang. If you're merely in the company of them, a cop can throw you out of a club or stop you from entering in the first place. I wonder how long it will take until bar own- ers rue the day the government "helped" them this way. But it gets better: police don't have to have any personal knowledge that someone they're targeting is a member of a gang. Merely being present "at the scene" of gang activity is enough. And here's the kicker: if you don't leave the bar when a cop tells you to do so, bill 42 deems you to be a trespasser. To state the obvious: you're a trespasser when the owner of a bar tells you to get out. But now the owner doesn't have to kick you out. The owner can want you to stay, but when a cop accuses you of standing near someone who knows some- one who once caused "fear," that cop can commandeer the property rights of the bar, and kick you out. It's a form of expropriation. The police now own the bar, or at least its property rights as to who can come and go. Not bad for a piece of legislation that was sparked in the first place by a privacy commissioner who thought merely taking a photo was too much. The privacy commissioner was worried about information being improperly shared. But bill 42 actually requires bar owners to fork over their confidential data to any police offi- cer on demand. So personal data that was voluntarily shared between a bar patron and a bar owner is now expropriated by a third party who has nothing to do with the deal: police. The same police whose CPIC computer system is rife with security breaches, including documented cases ranging from spying on neighbours to tracking ex-boyfriends to picking up women. I'm no fan of gangs. Any club owner should be able to kick out any patron for any reason, even for the vague offence of causing "fear." It's about property rights and contracts. So how did the cops foist themselves in the middle of it all? Ezra Levant is a Calgary lawyer. He can be reached at ezra@ ezralevant.com SCOTT PAGE

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