Privacy rights and video surveillance

by Tamara Hunter & Violet Allard

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.-Mr Justice LaForest, Supreme Court of Canada

What is privacy? Once described as the “right to be let alone” (The Right to Privacy by S.D. Warren and L.D. Brandeis), privacy has evolved from that simple formulation to a modern understanding that focuses on the preservation of an individual’s dignity and autonomy.

On February 7, 2002, the Privacy Commissioner of Canada, George Radwanski, presented his views regarding a Vancouver Police Department (VPD) proposal to create a wide-ranging network of public video surveillance to be initially targeted in the Downtown Eastside of Vancouver. In order to promote public debate on this issue, the CBABC and the BC Civil Liberties Association jointly sponsored this event, which was open to media and all interested members of the public. Commissioner Radwanski’s appearance in Vancouver was just one of many he has made across the country raising public awareness about the issue of video surveillance and its potential impact upon citizens’ privacy.

The Vancouver Police Department proposal recommends that 23 cameras be permanently mounted in the Downtown Eastside, Gastown, Chinatown and Strathcona communities. In addition, the VPD wants to add two mobile cameras to deal with the problems of displaced crime caused by the stationary cameras. The video cameras would have the capacity to pan whole streets and to zoom in on targets for close-up surveillance.

Commissioner Radwanski stated that, in his view, video surveillance of public places is the most important privacy issue facing Canadian society today. The Commissioner’s opinion is that, at most, video surveillance can displace crime, not reduce it. He provided a number of examples in both the U.S. and the U.K. where video surveillance had failed to deter crime.

In his remarks, the Commissioner explained that after the tragic events of September 11, he recognized that privacy was not an absolute right. There clearly could be some circumstances where it was legitimate and necessary to sacrifice some elements of privacy in the interests of vital security precautions. But he suggested that the burden of proof must always be on the state and state agents who suggest that such a sacrifice is necessary for security.

The Commissioner recommended that any proposed measure to limit or infringe privacy must meet four very specific criteria. First, it has to be demonstrably reasonable to address a specific problem. Second, it must be demonstrably likely to be effective in addressing that problem. Third, it must be proportional to the security benefit to be derived. Fourth, it must be demonstrable that no less privacy-invasive measure would suffice to achieve the same result. Such a test would, in his view, create a carefully reasoned balance between the legitimate needs of law enforcement and security on one hand and the need to maintain Charter rights and freedoms and values on the other.

Following his address, a number of questions were put to the Commissioner which indicated that there is a wide range of views on this topic and that some attendees felt that the Commissioner was overstating the negative effects of the proposed video surveillance on personal privacy and that the public should not expect to have privacy on public streets. These issues (and others) were further discussed in a Question and Answer Session with the Commissioner for members of the CBA Freedom of Information and Privacy Law Section, following the Commissioner’s public address.

In our view, the Commissioner’s proposal for a modified Oakes test to be applied before citizens’ privacy rights are infringed is an interesting one and worthy of more public debate. While the right to privacy is not explicitly mentioned in our constitution, Canadian courts have found that a right to privacy is protected by certain provisions of the Charter which guarantee the right to “life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice” (s. 7) and to freedom from unreasonable search and seizure (s. 8).

In R. v. Mills, the Supreme Court of Canada confirmed that there was no hierarchy of Charter values and that protection of privacy must be considered on an equal footing with other rights protected under the Charter. Constitutional protection of the right to privacy therefore has an impact on the proposals for video surveillance across the country and it is through this lens that Commissioner Radwanski’s proposal should be reviewed and considered.

Let the debate begin!

This article was submitted by Tamara Hunter, Chair of the Freedom of Information and Privacy Law Section and Violet Allard, Secretary of the Freedom of Information and Privacy Law Section.

This article was published in the April 2002 issue of BarTalk. © 2002 The Canadian Bar Association. All rights reserved.