Video Surveillance and Privacy

By Alan Gahtan - November 12, 2001

On October 4, 2001 , the Privacy Commissioner of Canada , George Radwanski, released a letter of finding in respect of an investigation of video surveillance activities conducted by the Royal Canadian Mounted Police (RCMP) in Kelowna , B.C. Specifically, the investigation concerned the lawfulness under the federal Privacy Act of the installation of surveillance cameras by the Royal Canadian Mounted Police in the downtown core of the City of Kelowna .

On February 22, 2001 , following consultation with City of Kelowna officials and downtown business representatives, the RCMP installed one camera in in Kelowna . At least five other locations were also selected for installation of surveillance cameras as soon as funds become available, as part of a plan to eventually provide total coverage of all downtown streets and avenues in Kelowna . Eleven signs were posted in the area under surveillance in order to provide notice to the public that the area was under surveillance.

Although the single installed camera was purchased with funds provided by the City and the Downtown Kelowna Association, it was operated and maintained solely by the RCMP. The video was recorded and saved for subsequent review in the event an incident in the area was reported to police.

Section 4 of the Privacy Act provides that "no personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution". Personal information is defined in the Privacy Act as any "information about an identifiable individual that is recorded in any form". The Privacy Commission found that recording the activities of individuals constituted a collection of personal information within the meaning of the Act. He then found that the continuous recording, as opposed to the recording of selective incidents related to law enforcement activities, to be in contravention of the Privacy Act.

The Privacy Commissioner noted that his finding was consistent with one made by the Québec Information and Privacy Commissioner in respect of similar surveillance activity in the City of Sherbrooke in 1992. The Québec Commissioner had concluded that the City of Sherbrooke contravened the Québec privacy legislation by "systematically collecting nominative information on video tape when it was not necessary for the carrying out of its duties or the implementation of a program under its management". The Privacy Commissioner also noted that his reasoning was consistent with that of the Supreme Court of Canada in its decision in the 1990 case of R. v. Wong, wherein the Court stated: "…to permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society."

The Privacy Act applies only to information "that is recorded in any form." Consequently, the RCMP discontinued continuous video recording on August 28. The Privacy Commissioner acknowledged that continuation of the video camera surveillance without continuous recording complies with the letter of the Privacy Act but in his view is not sufficiently respectful of the spirit of the law. However, the Privacy Commissioner acknowledged that that there may be specific circumstances where, even in his view, it is appropriate for police forces to use surveillance cameras in public places to maintain safety and order.

The finding must of course be put into perspective. It does not apply to other municipalities in Canada where policing is conducted using municipal or provincial police personnel. Also, the reasoning in the decision appears to be very focussed on video surveillance of public places by agents of the state. The Privacy Commissioner quotes the Supreme Court of Canada’s decision in Wong: "…there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape, a distinction that may in certain circumstances have constitutional implications. To fail to recognize this distinction is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities."

Several months earlier, the Privacy Commissioner issued a finding that the installation of surveillance cameras aimed at a public street for commercial purposes by a Yellowknife private security company was unlawful under the Personal Information Protection and Electronic Documents Act (PIPED). However, the Privacy Commissioner has since emphasized the importance of distinguishing between three different types of situations: security surveillance on private premises by a private organization; surveillance in public places by a private commercial organization, as was the case in the Yellowknife finding; and surveillance in public places by public authorities. In the case of private premises such as a bank, he stated that there should be signs clearly indicating that information is being collected by security cameras and that a person who chooses to enter such premises should be deemed to be giving implicit consent to being filmed.

Until 2004, the federal PIPED applies only to federal works, undertakings or businesses – primarily banks, telecommunications, broadcasting and transportation companies – and to the disclosure of personal information across provincial or national boundaries for consideration. Its application to the private security company that was the subject of the finding was due to its location in one of the three northern Territories.

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