Can they film it? CCTV and privacy legislation

  • April 23, 2018
  • Dylan Williams

Following the stabbing death of a nightclub promoter on Jan. 27, Vancouver City Council has faced calls to make the Granville Entertainment District safer. A major downtown hub, the area is home to a varied mix of shopping malls, bars and businesses. In 2010, surveillance was temporarily installed for the Olympic Games, mainly by the RCMP, but it attracted significant controversy and was removed afterward. Now, under a recent motion, the City is exploring a number of safety measures which include reactivating video surveillance systems in the area. The City is currently studying the idea with stakeholders, including the B.C. Privacy Commissioner (who is also scrutinizing similar proposals in Richmond, Terrace, and Kelowna).

Leaving aside issues of effectiveness and cost, the prospect of state-operated video surveillance raises interesting privacy issues. On one level, it would have to satisfy provincial data legislation. On another, it raises constitutional search and seizure issues.

Authorizing cameras under privacy legislation

The B.C. Freedom of Information and Protection of Privacy Act would apply to a hypothetical Vancouver camera system. “Public body” includes local government, and personal information is “recorded information about an identifiable individual other than contact information,” which would include audio/video recording of a person (Schedule 1).

Under FOIPPA, only certain purposes permit data collection. The two which could apply are: for law enforcement and information relating directly to an necessary for a program or activity. (s 26)

The former likely would not cover proactive recording, because this language has been interpreted as referring only to particular investigations that are already underway (p 3-4). Given that a video system would likely record continuously to catch unknown future crimes, it would not be covered. The other alternative would require the City to show that it is necessary for municipal activities. In past decisions, the Privacy Commissioner has interpreted this to be a high threshold – it requires strong evidence, though it doesn’t mean that the data must be absolutely essential for that public body to do its work (p 4).

If the City could justify necessity, a properly designed surveillance system could be compatible with the rest of FOIPPA. Provisions in the Act allow for use consistent with the purpose of collection and for disclosure to other public bodies if the data becomes relevant to an investigation (ss 32, 33.2(i)). FOIPPA may put certain limits on how the data is collected (s 27) but justifying data collection in the first place is the main hurdle the City would need to clear. 

Using the footage in criminal trials

If a video surveillance system could be lawfully created, that may not be the only legal challenge. As of this writing, it does not appear that the courts have had the opportunity to exhaustively consider whether ongoing, state-run video surveillance of public space is permissible under Section 8 of the Charter. While camera footage is already common fare in Canadian criminal courts, it tends to come from private parties (stores, apartment managers, etc.) or from targeted policing.

For somebody prosecuted using state-run cameras to exclude the evidence, the key challenge would be whether it counts as a “search” by the state. Unlike with the private footage, government-owned cameras more clearly fit as state action falling under the Charter.

The test for a search largely turns on whether the accused’s expectation of privacy is objectively reasonable (R v. Patrick, at para 27). Many different factors can come into this analysis, but a few are particularly important here. Weighing against a “search,” the surveillance happens outside, where an accused knows they are observed. Given how open and public places like Granville Street are, this would be powerful. Another important factor would be the nature of the information exposed. The court would ask whether intimate or sensitive details about an accused’s biographical core are revealed. A person’s movements and actions on the street can reveal many things about their daily life, such as their location, appearance, and associates (particularly if facial recognition technology were ever involved). However, compared to much of the information which Section 8 protects (from homes, offices, computers), it seems less revealing. The public setting and limited exposure could well defeat a Section 8 claim.

However, there are two important factors that would weigh in favour of a “search.” First, courts have recognized that recording technology is particularly intrusive on privacy (R v Duarte). The permanent, infallible, infinite record that audio-video devices create makes them far more revealing than a person’s observations using memory. Recently the B.C. Supreme Court applied this reasoning when it held that a police-installed 24-hour surveillance camera (which observed the backyard of a suspected drug dealer from public property) breached Section 8 (R v Wong). Second, the indiscriminate nature of a public camera system may lead courts to be especially cautious. Unlike a police officer filming a suspect, such cameras lack individualized suspicion. They operate on everyone who passes through an area, including for legitimate purposes like work or shopping. Section 8 aims to prevent unjustified searches before they happen, because those entirely innocent people will not be charged and never end up before the court (R v Patrick at para 33). Given the scale of the possible recording and the lack of specific grounds, courts would need to be careful of too quickly accepting warrantless cameras. Otherwise, they might cede their ability to impose guardrails on duration and scope (eg., allowing cameras to police a crime surge, but only four cameras for the next six weeks), like they could if a warrant was required.

Of course, there are other issues – the search may still be found reasonable, or footage may still be admitted under s 24(2). Still, if the footage could be successfully characterized as a search, it enters Charter territory and the question of whether or not it can be used for prosecution becomes complicated.

More considerations will surely emerge as the City explores this issue, but those municipalities eyeing video surveillance may find the legal foundation is less firm than it appears.  

Dylan Williams  is a law student at the University of British Columbia