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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD July 3, 2002

Privacy issues pertaining to surveillance cameras


Twelve days ago, George Radwanski, Canada's privacy commissioner, decided to rescue the privacy rights of the citizens of Kelowna, B.C. He did so by initiating a Charter challenge of the RCMP's video surveillance activities in downtown Kelowna. Why the RCMP? Because much like the SQ in Quebec, The RCMP acts as the municipal force in Kelowna, the largest city in the Okanagan region with a population of approximately 95,000.

The case turns on the legality of a surveillance dome camera suspended from a metal post, high above the ground in the core of downtown Kelowna. Radwanski is asking the Supreme Court of British Columbia to declare the surveillance activities unconstitutional on grounds that they violate the Canadian Charter of Rights and Freedoms.

Not only do the city and RCMP officials take issue with the commissioner's opinion - much like 80 per cent of the population of Kelowna - if they have their way five more cameras will be installed on other public streets. If we are to believe the Commissioner, the camera and others like it are illegal and constitute the single greatest threat to the fundamental human right of privacy that our society faces. At first glance it is difficult to understand why the Commissioner would chose to fight a legal battle over a camera that was installed for law enforcement purposes and is considered by so many as an effective tool to prevent crime. In fact, municipal police forces all across Canada have been relying on them. If sufficient funds were available they would probably be installed in every downtown area. Canada is certainly not unique. Britain has now has more than one million surveillance cameras. The camera in Kelowna is clearly not part of some sinister spy or police plot. In fact, it was made possible thanks to the Downtown Kelowna Association who kicked in $5,000. The balance of $17,000 was paid for by the city, which also hired four watch commander assistants to help the RCMP monitor the camera. After installing the camera in February 2001, the RCMP posted 11 signs declaring that the area was under surveillance.

Up until the Commissioner's ruling in 2001, which declared the activities as illegal, everything observed by the surveillance camera was recorded on video. The videotapes were changed on a daily basis and only reviewed when an incident was subsequently reported to the police. After six months they were normally erased and then re-used. Following his ruling, the RCMP stopped filming on a continuous basis. While the video camera is presently in operation, the actual videotaping takes place only when the watch commander assistant observes something suspicious and concludes a crime is about to be committed However, according to the federal privacy commissioner, the mere running of the camera on a continuous basis violates the Privacy Act, hence the law suit.

The federal Privacy Act, which came into effect on July I, 1983 seeks to protect the privacy of individuals with respect to their personal information held by any of the 150 federal government departments and agencies. In practical terms the Act places limits on the collection, use and disclosure of personal information. At the same time, Parliament created the office of the Privacy Commissioner of Canada, whose mandate is to oversee and defend the privacy rights of Canadians. Section 4 of the Act states 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 and includes any "information about an identifiable individual that is recorded in any form."

There can be little doubt that capturing information within the range of the video surveillance camera about an individual, such as his whereabouts and behavior, amounts to collecting personal information within the meaning of the Act. Furthermore, the Act also establishes a fair information code so as to regulate government handling of personal records. One of the many code requirements obliges the federal government to limit its collection of personal information to the minimum details needed to operate programs or activities.

As far as the Privacy Commissioner is concerned, "the wholesale monitoring or recording of vast numbers of innocent citizens runs afoul of the requirement to collect only the minimum amount of personal information required for the intended purpose." The Commissioner's ruling in 2001 was based on the premise that video surveillance amounts to the gathering of personal information on thousands of innocent citizens without reasonable grounds. According to the Commissioner, not only was the RCMP violating the basic precondition of proper cause, it was engaged in activities irrelevant to its mandate.

As to the mere operation of the camera presenting a serious threat to privacy rights even in the absence of recording, the Commissioner contends it is too great a price to pay to have a safe society. He points out that since the public has no idea whether or when the recording might take place, it amounts to a violation of their fundamental right to privacy.

He is equally convinced that if the proliferation of video surveillance cameras in public places is allowed to take place, it will lead to cameras with biometric technology capable of "identifying individuals by matching their facial characteristics with photos that are on record." Although the Commissioner recognizes there are indeed specific circumstances that would justify the use of a surveillance camera on a public street, such as when a crime cannot be prevented by other "less privacy-invasive means", they do not include the circumstances in downtown Kelowna.

No doubt the Commissioner was inspired by a 12-year-old ruling by the Supreme Court of Canada. The case involved a Toronto police investigation, which relied on a hidden video camera in a hotel room to gather evidence of illegal gambling. Because of reasonable expectations of privacy in a hotel room, coupled with the fact that judicial authorization had never been obtained for the use of the camera, the highest court of the land declared the evidence inadmissible and pronounced the following warning:

". . . 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 . . . we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy."