UK Court of Appeal causes re-set for facial recognition surveillance

On September 11th, the England and Wales Court of Appeal held that the South Wales Police Force violated Article 8 of the European Convention on Human Rights and the UK Equality Act 2018 by using facial recognition software on two occasions. The finding is narrow, though, and leaves facial recognition technology open to police use.

The police piloted facial recognition technology on two occasions. They were governed by the Data Protection Act 2018, a surveillance “code of practice” issued under the protection of Freedoms Act 2012 and written local police policy. The police also conducted a data protection impact assessment and a (somewhat limited) equality impact assessment.

The police conducted overt facial recognition surveillance under this framework based on pre-deployment notice made, in part, via advertising and via notices posted on the police cars equipped with facial recognition cameras. On two occasions the police collected images for an entire day and matched the images against images in “watch lists” comprised of persons wanted on warrants, persons identified as suspects and other persons of interest. The police used human validation to screen matches, which led them to make two arrests on one occasion and no arrests on another. Significantly, the police immediately disposed of images of all persons who did not match.

The Court found the deployment to have been unlawful based on two problems, both problems of process rather than fundamental problems.

First, the Court held that the deployments were not sufficiently prescribed by law to justify an infringement of Article 8 (which protects the right to privacy). More specifically, it held that the legal framework for the deployments left too much discretion to the police as to who may be placed on a watch list, in particular for intelligence gathering purposes. The police failure to reckon with this aspect of the technology and surveillance program also led the Court to conclude that its data privacy impact assessment was inadequate.

Second, the Court held that the police did not conduct an adequate equality impact assessment, which it held requires “the taking of reasonable steps to make enquiries about what may not yet be known to a public authority about the potential impact of a proposed decision or policy on people with the relevant characteristics, in particular for present purposes race and sex.” The police ought to have, the Court said, assessed the facial recognition software to determine if it resulted in “unacceptable bias,” even if human validation was to be a feature of the matching process.

Notably, the Court held (in obiter) that the police infringement of Article 8 rights was justifiable in regards to the relative consequences and benefits of the surveillance scheme, calling the impact on Article 8 rights “negligible.”

As noted, this leaves facial recognition technology open to police use in the UK. Use for intelligence gathering purposes may be more questionable than use for investigatory purposes.

Bridges, R (On the Application Of) v South Wales Police [2020] EWCA Civ 1058 (11 August 2020).

PEICA finds no “search” in interviewing a hacker informant

The headline is sensational, but it aptly describes the issue that the Prince Edward Island Court of Appeal recently addressed in R v Molyneaux. The Court held that the police did not conduct a search (governed by section 8 of the Charter) by interviewing an informant about what she saw when she surreptitiously viewed the accused’s phone.

The police charged the accused with child pornography offences. There was a separate dispute about the seizure of images from the accused’s phone, but the Court of Appeal dealt with the informant’s statement alone. The informant attended the police station for an interview, and told the police that she had viewed numerous pornographic pictures of her child when browsing the accused’s phone. The defence argued that the police conducted a search into the phone by conducting this interview. It relied, in part, on cases that have precluded the police from obtaining private information from commercial actors – namely, R. v. Spencer, 2014 SCC 43 and R. v. Orlandis-Habsburgo, 2017 ONCA 649.

The Court rejected the defence argument, explaining:

Society’s conception of the proper relationship between the investigative branches of the state and the individual surely must allow the police to speak to a witness without prior judicial authorization.

I do not believe that the subject matter of the “search” was Molyneaux’s cell phone or the contents thereof. The police were seeking information that might reveal whether or not a crime occurred, and if so, whether or not they should pursue further investigation.  The subject of the search was K.’s memory of what she saw the morning of December 31, 2017.

The Court distinguished Spencer and Orlandis-Habsburgo as matters arising out of the commercial context, in which expectations differ.

R v Molyneaux, 2020 PECA 2 (CanLII).

Ont CA says bag search unlawful, order $500 in damages

On April 16th, the Court of Appeal for Ontario held that the Toronto Police breached sections 2(b), 8 and 9 of the Charter by enforcing a “condition of entry” to a public park because they were not properly authorized to establish the condition.

The City of Toronto had authorized the police to act as its agents “for the purpose of administering the Trespass to Property Act.” Acting under this authority, the police decided to search bags (and all other things in which weapons could be concealed) possessed by those attending a G20 protest at Allan Gardens. The appellant took issue with the legality of this “condition of entry.” The police restrained him when he refused to comply, searched his bag and confiscated a pair of swim goggles. You can see a video of the altercation here.

The Court of Appeal decision turned on text of the grant of authorization, which the Court held was too narrow given the Trespass to Property Act only provides property owners and occupiers with “a suite of enforcement powers” and not a power to create restrictions on access to property. It said, “The jurisprudence consistently takes a rigorous approach when interpreting the sources of legal authority relied upon by government to encroach upon the liberty of the subject.”

The Court ordered the police to pay $500 in damages. It said the appellant (who drew attention to his fate during the altercation and afterwards) did not establish any reputational or other personal loss. The Court also noted that the police acted in good faith with a view to the safety of the public.

Stewart v Toronto (Police Services Board), 2020 ONCA 255 (CanLII).

Case Report – Companion sniffer dog cases establish reasonable suspicion search standard

On April 25th, the Supreme Court of Canada released two decisions involving Charter challenges to sniffer dog searches. Very briefly, R. v. Kang-Brown was about the search of an individual traveller’s luggage at a bus station based on a police officer’s observation of suspicious behavior. R. v. A.M. was about a routine sniffer dog search at a public school. In both cases, the Court found a violation of section 8 of the Charter and held that the evidence found should be excluded.

The two cases are primarily about about the legal rules for police use of sniffer dogs and, to some extent, “snooping technologies” that facilitate scanning for crimes outside of a targeted investigation.

On the key issue, the Court split 4-4, with Bastarache J. writing a swing judgement on his own. Lebel J. (with Fish, Abella and Charron JJ. on this point) held that the police have no common law authority to use sniffer dogs outside of an investigation based on reasonable and probable cause. Binnie J. (with McLachlin C.J. and Deschamps and Rothstein JJ. on this point) held that the police possess a common law power to search using sniffer dogs on the basis of a Charter compliant standard of “reasonable suspicion.” Bastarache J. held that the police posses a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of “generalized suspicion.” Bastarache J. also endorses the reasonable suspicion standard, so it appears the police may continue to use sniffer dogs without statutory enactment based on the reasonable suspicion standard.

Police powers and Charter constraints – reasonable suspicion standard prevails

On the main issue, A.M. is a better example of what was at stake. Binnie J. characterizes the sniffer dog search in A.M. as one used in a “routine criminal investigation.” Calling what happened in A.M. an “investigation” seems a slight misnomer because there was really no crime under investigation at all. The sniffer dog search was used by the police in A.M. as a type of surveillance tactic, with its purpose rooted in keeping the peace and preventing crime. “Routine criminal inspection” might be a more accurate description of how sniffer dogs were used in A.M., though the word “inspection” is ordinarily used to describe regulatory rather than police activity.

This was the problem. In fact, a concern about the use of search powers for keeping the peace (as opposed to investigating crime) arguably drives Lebel J.’s judgement. In both cases, he held that the police only have a common law power to engage in a search that is based on reasonable and probable cause. Although he does not reject the permissibility of search powers for purposes that will naturally involve less targeted suspicions, he says that such policing powers ought to based in statute, not the common law.

Binnie J. held that a requirement for reasonable and probable cause would render a longstanding law enforcement tool unusable, so the Court ought to recognize the power and subject the reasonable suspicion standard to Charter scrutiny. In Kang-Brown, he said:

… the “leave it to Parliament” approach ducks a practical and immediate problem facing law enforcement. Sniffer dogs have been in common use by police forces in Canada for the last 30 years or more. If the police have lawful authority to use sniffer dogs only when they already have reasonable grounds to believe contraband is present, sniffer dogs would be superfluous and unnecessary, i.e. because ex hypothesi the police already have the grounds to obtain a search warrant and would not require the confirmatory evidence of a dog.

He held sniffer dog searches are Charter compliant when they meet the reasonable suspicion standard, characterizing a search with a well-trained and accurate dog as relatively unintrusive.

While Binnie J. states in Kang-Brown that the reasonable suspicion standard contemplates a suspicion “in relation to one or more members of a group of people closely linked in proximity to the crime,” in both cases Bastarache J. endorses a standard that is de-linked from individuals – the generalized suspicion standard. He says this standard is justifiable in environments such as public terminals and schools where there is a reduced expectation of privacy. In Kang-Brown, he explains:

In my view, it is, in some circumstances, appropriate for police to conduct random searches using sniffer dogs on the basis of generalized suspicion. Allowing this type of search recognizes the important role sniffer dogs can play not only in detecting crime but also in preventing and deterring crime. Given the accuracy and efficiency of sniffer-dog searches, it is reasonable to conclude that their known presence, or potential presence, at particular locations would have a significant preventative effect. Allowing random searches in certain situations also has the benefit of avoiding inappropriate profiling and reducing any embarrassment which may be associated with a targeted search. I agree with the finding in Simmons that there is no stigma attached “to being one of the thousands of travellers who are daily routinely checked” at border crossings (p. 517), and believe that that lack of stigma results in large part from the random nature of the search process.

School searches

A.M. was not resolved in a manner that significantly alters or speaks to the law regarding searches conducted by school boards themselves. When police search schools using sniffer dogs or conduct similar premises searches, it is now clear they must meet the reasonable suspicion standard. When school officials physically search individual students, based on the Supreme Court of Canada’s 1998 decision in M.R.M., they must meet a similar relaxed standard (which Binnie J. interestingly characterizes as the reasonable suspicion standard, though that term was not used in M.R.M.). Whether school boards (acting on their own and not through the police) can engage in routine searches of school premises is not yet clear.

A.M. does not speak to a school board’s own power to search school premises because it was clear that the search under review was initiated by the police. Despite this, Deschamps J. (with Rothstein J. on this point) held that the search in question did not affect a reasonable expectation of privacy such that it engaged a section 8 right to be free from unreasonable search. She stressed the difficult challenge school boards face in maintaining safety and order, that the search was supported by policy that was known to students and parents and the relatively unintrusive nature of a sniffer dog search. The other judges’ position seems to be represented by Binnie J., who rejects Deschamps J.’s argument by stating that it fails to recognize the difference between a school board exercising its authority to maintain a safe and orderly school environment and a police search. Without endorsing routine school board searches, Binnie J. reinforces the different function of a school board and implicitly leaves open the possibility that properly constructed and executed routine or generalized suspicion searches by school boards may be lawful. School boards should nonetheless be very cautious in embarking upon any such initiatives and should seek legal advice before proceeding.

R. v. Kang-Brown, 2008 SCC 18.

R. v. A.M., 2008 SCC 19.

Case Report – Investigator to suspect duty of care recognized by SCC

On October 4th, a 6-3 majority of the Supreme Court of Canada held that an investigating police officer owes a private law duty of care to the suspect under investigation. This is a duty of care case and not directly about information and privacy. There are, however, a couple of points of significance to readers of this blog.

First, investigations obviously involve the collection of personal information, and the new duty will inform such collections. Unlike section 8 of the Canadian Charter of Rights and Freedoms, which only operates to restrict the collection of information, the new duty could conceivably require its collection. In fact, in this case one of the allegations was that the police breached their duty of care by failing to re-investigate after receiving exculpatory evidence after charges were laid. Based on the majority’s reasoning, there is no reason why a private investigator or a member of a company’s audit or security staff would not be found to be subject to an analogous duty quite apart from any factors related to the underlying relationship between the investigator’s principal and her suspect.

Second, this is the first time the Supreme Court of Canada has commented on the important Jane Doe duty to warn case, which was relied upon by the majority (of five judges) at the Court of Appeal in recognizing the new duty. Writing for the majority of the Supreme Court, McLachlin C.J.C. said that Jane Doe was not analogous and noted that there is significant debate over the content and the scope of its ratio. For the minority, Charron J., went further and explained:

Hence, the trial judge in Jane Doe held that where the police are aware of a specific threat to a specific group of individuals, the police have a duty to inform those individuals of the specific threat in question so that they may take steps to protect themselves from harm. As Moldaver J. (as he then was) said, speaking for the Divisional Court in confirming that the action could proceed to trial, “[w]hile the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk”: Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 72 D.L.R. (4th) 580, at p. 584. Hence, Jane Doe cannot be read to stand for the wide proposition that the police owe a general duty of care to all potential victims of crime. Such an interpretation would ignore the fact that there must be more than mere foreseeability of harm before a duty of care will arise; there must also be sufficient proximity between the parties and the absence of policy considerations negating the existence of any prima facie duty of care.

Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41.