BC court rejects “mass surveillance” application

On December 16, the Supreme Court of British Columbia dismissed a Charter application that challenged police use of surveillance cameras to continuously record a public space in an attempt to deter further hate crimes.

Police use of surveillance cameras is attracting attention, primarily because of the ability to integrate surveillance technology with facial recognition and other similarly advanced technologies.

This case is about the use of video surveillance alone. The Vancouver Police Department parked a “public safety trailer” or “PST” on a street in Chinatown after a hate crime incident. It did so to deter further incidents and demonstrate to the community that it was taking action.

The PST had cameras mounted on a 10 metre pole. The cameras had the capacity to pan (360 degrees) and zoom (32x), but the VPD only used them to capture 40 square meters of public space outside the community centre that had been targeted with hateful graffiti. The applicant was a local resident who at first didn’t appreciate what the PST was, but then avoided walking near it to avoid “state surveillance.”

Those interested in privacy advocacy and litigation know that privacy is a concept that people value in wildly different ways. The spectre of this type of surveillance would be shocking to some. The applicant in Ontario case R v Hoang (also unsuccessful in their challenge), described pole mounted camera surveillance by police as follows:

A pole camera has a Big Brother undertone to it. Undertone that becomes the very melody when you consider the contemporary availability of ubiquitous wireless networks and increased availability of miniature devices at nominal costs as well as the massive digital storage media now available. All this means entire streets, neighborhoods, cities could be continuously recorded. Unlimited amounts of information about what its citizens are up to could be gathered by the state authorities. The pole camera is truly “the camel’s nose under the tent.”

What strikes me about the VPD case is how well the VPD did in mitigating the risk that the application judge would take this view – both by good advocacy and good privacy management. Here is some of the mitigating evidence that led the judge to find that the applicant had no reasonable expectation of privacy in the circumstances:

VPD adduced evidence of the hate crime itself, in detail. The crime involved egregiously racist anti-Asian graffiti.
VPD tied this evidence to the broader context, which showed “a troubling increase in the targeted crime against the Asian community.”
VPD adduced good evidence of privacy management, including evidence (a) that it configured PST software in consultation with the Office of the Privacy Commissioner of British Columbia, (b) that it generally minimizes the use of PSTs given their perceived privacy impact, and (c) that the entire chain of command was involved in the decision to implement the PST in Chinatown, based on a clearly articulated objective.
VPD adduced evidence demonstrating rationality and proportionality of its response to the hate crime – i.e. evidence of its other investigative efforts and interventions, including deploying more officers to Chinatown.

This evidence swayed the judge to view the entire endeavour favourably, even though the record was not perfectly in favour of the VPD. One PST malfunctioned for a period of time, for example, during which someone tagged the PST itself with graffiti. One could use evidence like this to cast the VPD as Keystone Cops, but the application judge found this problem of no great consequence; equipment malfunctions, and the VPD (acting rationally and aligned with its objectives), replaced malfunctioning PSTs more than once.

On all the above facts and others, the application judge found the applicant had no reasonable expectation of privacy. In my view, there were two factors that drove this outcome. First, the surveillance was conducted openly, so the applicant was able to avoid being surveilled by altering how she travelled through her neighbour hood – i.e. she continued to have control over her informational privacy. Second, the surveillance footage was never used by the VPD or even intended to be used given the VPD’s deterrence objective. The judge said:

Had the VPD used the PST for an investigation, it may have provided them with information with which to help identify a suspect using ordinary investigative techniques. However, there is no evidence that the VPD had any ability to identify pedestrians as they walked through the field of view of the PST. Nor was identification of law-abiding citizens what the police were “really after”

The case therefore stands for the proposition that “deterrence video surveillance” of public spaces does not invite a “search” under section 8 of the Charter. It may be alarming to some, especially given the prospect of AI embedded facial recognition. Ironically, the alarmist picture of police surveillance trailers with powerful cameras on ten metre poles that could be connected to all sorts of matching technology supports the aim of deterrence. However, per Tessling, actual impact rather than “theoretical capabilities” determines the scope of section 8 rights.

Note that the judge also dismissed a allegation that the VPD breached section 7 of the Charter, finding that the choice between taking a “short detour” and being subject to video recording by the state does not impede a protected liberty interest.

Papenbrock-Ryan v Vancouver (City), 2024 BCSC 2288 (CanLII)

Arbitrator gives employers a “nugget” for justifying in-plant surveillance

Saskatchewan Labour Arbitrator William Hood made the following comment in dismissing a grievance that challenged the installation of video cameras in a distribution centre that supplies product to hospitals and pharmacies:

The Employer’s implementation of a video surveillance system passes the reasonableness tests both in terms of need and manner of use. To suggest there first must be a breach of the security of the premises before one can justify the use of video cameras for security purposes makes no sense to me in the circumstances. Why would management wait until someone stole the gold to install video surveillance at the Royal Canadian Mint?

This is a nice statement for employers, though the award was carried on a number of good facts.

Re Saskatchewan Joint Board, Retail, Wholesale and Department Store Union and McKesson Canada Corp. (Privacy Grievance), [2010] S.L.A.A. No. 26 (Hood) (QL).

Case Report – Alberta OIPC blesses picket line videotaping for limited purposes

On March 30th the Alberta Office of the Information and Privacy Commissioner held that a union did not need consent to continuously video tape a picket line so it could capture any evidence of picket line misconduct.

The OIPC held that the union could rely on the Alberta PIPA “investigations exception” to the rule against collecting personal information without consent. The exception applies when a collection, use or disclosure of personal information is “reasonable for the purposes of an investigation or legal proceeding.” The OIPC held that this language is engaged when misconduct is “likely to occur.” It explained:

I accept the broadest of the possible interpretations of the provision. In my view the inclusion of the phrase “reasonable for the purpose” takes the place of any temporal restriction, allowing information to be collected in the appropriate circumstances even though an investigation or legal proceeding may never take place in fact. It strikes me as prudent and therefore reasonable to collect information which could avoid contests, in the context of an investigation or legal proceeding that is reasonably likely to arise over contentious facts which would be hard to establish through witness testimony. As there was a reasonable likelihood of incidents on the picket line that could lead to a police investigation and law enforcement proceedings, and as a Labour Relations Board or court proceeding relative to the conduct of the picketing was reasonably forseeable, an investigation or legal proceeding was reasonably likely to arise in the circumstances of the present case.

This finding – that the investigations exception can apply to surveillance – is of significance that goes beyond the picket line scenario being considered. The OIPC’s treatment of the picket line scenario itself is of less significance but nonethless interesting.

Picketers often employ video cameras and still cameras, a practice thought by some to be an intimidation tactic. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and the union admitted to several suspect purposes, including dissuading people from crossing the picket line and using humour to support picket line morale. The OIPC did not draw a negative inference from this evidence and accepted that the union’s asserted investigative purpose for collecting images was genuine. Since the union had a single genuine purpose for collecting and using the images, the OIPC explained, it violated neither the consent requirement in the Act nor the reasonable purposes requirement of the Act:

I note finally that the result would be the same even if the Union’s primary purpose was one relative to which the Act gives no authority, and the authorized purpose was relatively a very minor one, as long as the latter was genuine. If I thought the Union was fabricating the authorized purpose to try to validate its collection of information, and that its only true purpose or purposes was other than the authorized one asserted in its submission, I would declare that the collection was in contravention of the Act (or order cessation if collection were continuing) even though the Act authorized collection of the same kind of information for a purpose that the Union did not genuinely have. In this case I believe that the gathering of evidence for the purpose of a possible investigation or legal proceeding was one of the reasons the Union was collecting information through video recordings and photos. Thus it is sufficient to declare that the video recording and photographing was in contravention of the Act (in the absence of consent) only insofar as it was for any of the other purposes.

Despite this limited blessing, the OIPC found that the union nonetheless violated the Act by collecting, using and disclosing images for purposes other than its investigative purpose and, specifically, by taking still photograps of individuals (which did not reveal any misconduct) and by using pictures of a vice-president of the employer in its posters and newsletters. The OIPC also held that the union failed to give notice of its investigative purpose as required by the Act.

Order P2008-008 (30 March 2009).

Case Report – Arbitrator says thorough probing is a prerequisite to surveillance

On November 27th, Manitoba labour arbitrator A. B. Graham excluded video surveillance evidence that showed an employee who was on light duties playing sponge hockey, in part, because the company ought to have been more direct in questioning the employee about his off duty conduct.

When the employee was confronted about playing sponge hockey, he did not lie but his answers were evasive. As a result, the company hired a private investigator to conduct video surveillance. Although the arbitrator excluded the video surveillance evidence based on a finding that the company should have asked the employee pointed questions first, he also held that the employee breached a duty to cooperate in the accommodation process by being more forthright about playing hockey and whether it was consistent with his medical restrictions.

Re Praxair and General Teamsters Local Union 979, [2007] M.G.A.D. No. 37 (Graham).