Opinion by Justice Gérard La Forest

April 5, 2002

George Radwanski
Privacy Commissioner of Canada
112 Kent Street
Ottawa, Ontario
K1A 1H3

Dear Sir:

re: Opinion - Video Surveillance

You have asked for my opinion regarding the legal implications of the use of video surveillance by the police on public streets (what I shall call "general video surveillance."). Emulating programs in the United Kingdom and in some municipalities in the United States, a number of police forces and local governments in Canada have either instituted video surveillance programs or are contemplating doing so. Of particular importance is the installation by the RCMP of a video surveillance camera on a public street in Kelowna, British Columbia, a program that has been the subject of a complaint to your office. This opinion will focus on the legal and constitutional ramifications of the Kelowna case. But the analysis applies, mutatis mutandis, to similar programs employed by the RCMP in any location in Canada. And though your jurisdiction is limited to the activities of the RCMP and other Canadian government institutions, my discussion of the Charter's application to video surveillance is relevant to programs conducted by any police agency or governmental authority in Canada.

Introduction

Although you have asked for a legal opinion, I should stress that the issue of general video surveillance is not solely or even primarily a legal question, at least not in the sense that it is to be resolved exclusively by the courts. As you are well aware, it raises broad socio-political issues, the resolution of which will help to define the proper relationship between the individual and the state in coming decades. As I will attempt to describe later, the courts will have a role to play in defining this relationship. But ultimately the continuance of a free society depends on an alert citizenry, the constant scrutiny of legislative organs (now supported by offices like your own), and the sensitive exercise of the executive's power to control overreaching by the police.

The nub of the problem lies in the nature of policing and the attitude of police. Police tend to define their job as the prevention of crime for the protection of the public. Naturally, they strive to obtain the tools they believe may be useful in fulfilling these objectives. But as in the case of general video surveillance, they often do so with little or no empirical evidence that these tools will reduce crime, or even materially assist in doing so. They also often underestimate the dangers these tools may pose to other basic societal values. That is why executive control must be carefully exercised, and why we should look with suspicion at demands for additional intrusions on individual liberty.

In seeking broader powers, the police are assisted by a common misperception in the wider public that the purpose of the criminal law is somehow to eradicate crime. But as the Law Reform Commission noted in its report Our Criminal Law,¹ the existence of crime is dependent on many other social conditions. In a free society, the real purpose of the criminal law is to underline the fundamental values of society for the vast majority of citizens who are law abiding.

The police are often abetted in obtaining unnecessary, ineffective, and dangerous powers by the reflexive belief among many citizens that restrictions on liberty do not affect them, or more dangerously, that such restrictions are insubstantial and worth the sacrifice. This danger has been eloquently expressed by Walter Gelhorn as follows:

"In every society, in every age, and certainly in our own there are multitudes who, in Archibald MacLeish's phrase, "fear freedom or are frightened of the loneliness it implies." For the most part, however, inroads on freedom are not initiated by those who prefer that others assume responsibility for directing their lives; these flabby folk become the hordes that sustain dictatorships, but they themselves are too inert to bring it to pass. We need not worry, in my estimation, that freedom will be brought low upon their initiative. Nor do I think that evilly motivated men will successfully trick us into surrendering one after another bastion in a heedless quest for an unattainably perfect security. The real danger lies among those of us who genuinely desire to protect freedom, and who think that this can best be done by limiting it. They propose to give a little here to protect a lot there. The motive is admirable, but the judgment is unsound. The very amplitude of our American brand of freedom sometimes seduces us into believing that a good deal of it can be spent without anyone's really noticing the difference--that we can afford, as Carl Becker put it, "to take liberties with our liberty." But the trouble is that small restrictions accumulate into large restrictions and, in the process, may become as habitual as, before, freedom was. Restrictions justified as necessary safeguards of freedom may in fact safeguard freedom out of existence altogether."²

In Kelowna and elsewhere, some citizens have said that they have nothing to hide and are comforted in the belief that video surveillance will permit the police to check the actions of malefactors. But this wholly mistakes the nature of a free society. It is not only criminals who are harmed by intrusions on liberty. In the absence of compelling justification, we should all be free to move about without fear of being systematically observed by agents of the state. As the Supreme Court put it in Dagg v. Canada (Minister of Finance), "privacy is grounded on physical and moral autonomy - the freedom to engage in one's own thoughts, actions and decisions."³ Privacy, in other words, is at the heart of liberty in a modern state.⁴

With this broad context in mind I propose to examine three legal questions: the application of federal legislation to general video surveillance; the impact of the Charter; and the jurisdiction of the Solicitor General to regulate the use of video surveillance by the RCMP. I have come to the conclusion that a strong case can be made that:

1. continuously recorded general video surveillance violates the Privacy Act;
2. general video surveillance, whether or not recorded, violates section 8 of the Charter; and
3. the Solicitor General has the authority to regulate the use of video surveillance by the RCMP.

The Statutory Framework

As is often the case with new technologies and new applications of existing technology, legislatures have been slow to respond to the problems presented by video surveillance. There are two relevant federal statutes: the Privacy Act⁵ and the Criminal Code.⁶ But as I elaborate below, neither statute prohibits the RCMP's use of general video surveillance that is not continuously recorded.

The Privacy Act

There is no doubt that the RCMP is subject to the provisions of the Privacy Act. The Act lists the RCMP as a "government institution."⁷ As you are aware, this designation triggers the various obligations arising under the Act. But it is less clear whether the Act can be applied to video surveillance. The Act regulates the collection and use of personal information by government. Section 3 defines "personal information" as "information about an identifiable individual that is recorded in any form . . .." As you recognized in your findings in the Kelowna case, the Act does not therefore apply to unrecorded video surveillance.⁸

You concluded in those findings, however, that the Act does apply to recorded video surveillance. This is an eminently plausible interpretation of the Act. In Dagg, the Supreme Court noted that the definition of personal information in the Act is expansive.⁹ Its intent is to "capture any information about a specific person, subject only to specific exceptions."¹⁰ This interpretation, the Court continued, "accords with the plain language of the statute, its legislative history and the privileged, foundational position of privacy interests in our social and legal culture."¹¹ As you stated in your Kelowna findings, an "individual caught within the visual range of a video surveillance camera can, in theory be identified" and the "captured image reveals information about the individual (such as the individual's whereabouts and behaviour)." On a plain reading, therefore, the definition of "personal information" supports the conclusion that all video surveillance records depicting persons are subject to the Act.

This leads to the next question whether the practice of continuous recording violates the Act.

Section 4 prohibits government institutions from collecting personal information unless that information "relates directly to an operating program or activity of the institution." You stated in your Kelowna findings that:

"It is a tenet of the Act that an institution can collect only the minimum amount of personal information necessary for the intended purpose. There must be a demonstrable need for each piece of personal information collected in order to carry out the program or activity."

This a perfectly reasonable conclusion. Though the principle of "minimal collection" is not expressly referred to in the legislation, it is consistent with the purposes of the Act referred to in section 2 and interpreted in Dagg.¹²

You further found that the continuous "monitoring and recording the activities of vast numbers of law-abiding citizens as they go about their day-to-day lives" is not a legitimate part of the RCMP's operating programs or activities. You therefore concluded that this practice contravened the Act.

In my opinion this is the better view. As you have compellingly argued, video surveillance without cause poses a grave threat to privacy. This threat is compounded by continuous recording. As I emphasized for the Supreme Court in R. v. Duarte, "if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance."¹³ The fact that video-only recording does not capture oral communications is not determinative. In R. v. Wong, which involved surreptitious video-only surveillance, I again spoke for the Court in holding 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."¹⁴

There are differences between the factual contexts of Duarte and Wong and the present situation. I discuss these later. But the basic point here is simple: the electronic recording of the movements and activities of persons by a government institution without cause threatens to obliterate the privacy interests the Act was designed to protect. This intrusion into privacy can only be justified by a compelling state interest. At best, the recording of general video surveillance serves legitimate police functions only marginally. Leaving aside the question whether video surveillance without continuous recording is efficacious in reducing crime, continuous recording appears to provide few advantages. One possible benefit is to ensure that a record will be made of criminal activities that are missed by observers. This is unlikely to occur, however, if monitoring stations are adequately staffed and observers reasonably diligent. The possibility that recording might reduce monitoring costs cannot justify such a serious intrusion into personal privacy.

Moreover, one of the alleged virtues of general video surveillance is the ability to detect crime in progress to minimize harm and facilitate apprehension. The ex post facto review of surveillance records does nothing to minimize harm and is less effective than real-time monitoring in facilitating apprehension. In short, continuous recording significantly diminishes privacy without adding appreciably to the RCMP's ability to carry out its legitimate activities.

Of course, there is no guarantee that the courts will agree with this analysis. Judges less sympathetic to privacy interests may take a more deferential approach. Some may be reluctant to read substantive, policy-based limitations into the section 4 prohibition on collecting personal information that does not directly relate "to an operating program or activity" of the institution. They may conclude that the benefits of continuous recording, however minor, serve the police functions of preventing or deterring crime.

In summary, your findings in the Kelowna case are reasonable, logical, and supportable in law and policy.

The Criminal Code

The Criminal Code, which contains a number of provisions regulating the use of electronic surveillance technologies by the police, does not deal directly with general video surveillance. Section 487.01 authorizes the police to obtain a warrant to "use any device or investigative technique . . . that would, if not authorized, constitute an unreasonable search or seizure . . .." It requires, inter alia, that the judge issuing the warrant be satisfied that there are reasonable and probable grounds to believe that an offence has been (or will be) committed and that the device or technique will reveal information concerning that offence. This provision, which Parliament enacted in response to Wong, expressly contemplates the use of video surveillance to observe persons "in circumstances in which the person has a reasonable expectation of privacy."¹⁵ But it does not authorize the use of video cameras to observe individuals in the absence of particularized suspicion.

The Criminal Code, however, does not prohibit general video surveillance, either by the police or any other person. Section 184 makes it an offence to intercept a private, oral communication without lawful authorization. But there is no equivalent provision applicable to video-only interceptions. In summary, the Criminal Code neither authorizes nor forbids general video surveillance. Its legality must be determined by reference to the Charter.

Section 8 of the Charter

The common law has long provided protection against arbitrary or unjustified governmental searches and seizures.¹⁶ In the United States, this protection was enhanced by inscribing a right to be secure against "unreasonable searches and seizures" into the Fourth Amendment to the United States Constitution. For many years, however, English and American courts defined these protections primarily in terms of the law of property and trespass. This changed in Katz v. United States,¹⁷ where a majority of the United States Supreme Court recast the Fourth Amendment as a guarantor of personal privacy. "[T]he Fourth Amendment protects people," Justice Potter declared, "not places."¹⁸ In interpreting for the first time Canada's new constitutional protection against unreasonable searches and seizures, our Supreme Court followed suit.¹⁹ In Hunter v. Southam,²⁰ Justice Dickson (as he then was) stressed that section 8 of the Charter guarantees a "broad and general right" to privacy. And in R. v. Plant, the Court confirmed that it is not necessary for a person to establish a possessory interest to attract section 8 protections.²¹

Needless to say, privacy, like other rights, has its limits. As was noted in Hunter, individuals are only entitled to a "reasonable expectation" of privacy. The problem here, of course, is that the surveillance is conducted on public streets and from this some may be tempted to conclude that there can be no reasonable expectation of privacy in what is by definition public space.

Such a conclusion, however, would be far too facile. Section 8 protects personal privacy in a host of situations. It does not demarcate rigid, formalistic borders between private and public spatial domains. As I stated for the Court in R. v. Dyment, "the spirit of s. 8 must not be constrained by narrow legalistic classifications."²² Determining whether individuals have a reasonable expectation of privacy in a given context is a nuanced, contextual, and fundamentally normative enterprise. As Justice Dickson held in Hunter, in each case "an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement."²³ This assessment must be made in the light of all the circumstances.²⁴

Though the courts have yet to pronounce on the constitutionality of general video surveillance, the principles that have been developed under section 8 can be applied by analogy to the present situation. In Duarte, the Court considered whether the surreptitious electronic recording of a conversation between a suspect and a police informant violated section 8. Writing for the majority, I stated that

". . . if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: "Electronic surveillance is the greatest leveler of human privacy ever known." If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime."²⁵

The same reasoning was applied in Wong. There, I determined for a majority of the court that the unauthorized, surreptitious video recording of activities in a private hotel room violated section 8. I explained my reasoning as follows:

"[I]f a free and open society cannot brook the prospect that the agents of the state should, in the absence of judicial authorization, enjoy the right to record the words of whomever they choose, it is equally inconceivable that the state should have unrestricted discretion to target whomever it wishes for surreptitious video surveillance. George Orwell in his classic dystopian novel 1984 paints a grim picture of a society whose citizens had every reason to expect that their every movement was subject to electronic video surveillance. The contrast with the expectations of privacy in a free society such as our own could not be more striking. The notion that the agencies of the state should be at liberty to train hidden cameras on members of society wherever and whenever they wish is fundamentally irreconcilable with what we perceive to be acceptable behaviour on the part of government. As in the case of audio surveillance, 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. . . . Moreover, as Duarte indicates, we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy."²⁶

It is true that Duarte and Wong dealt with interceptions in contexts where the expectation of privacy was high. The expectation of privacy on a public street, in contrast, is very much attenuated. We cannot reasonably expect the police to refrain from observing or overhearing persons they consider to be suspicious. To require the police to have cause or obtain authorization for such surveillance would unjustifiably limit their ability to investigate and prevent crime. Indeed, it may be permissible for the police to use a video camera to observe and record a particular suspect's movements in public spaces.²⁷ For this type of targeted surveillance, the relatively minor intrusion into privacy may possibly be balanced by the state's interest in effective law enforcement.

But comprehensive and continuous video surveillance is a very different matter. It permits the police to systematically observe, often at high resolution and across a broad spatial expanse, everyone present within the camera's or cameras' range. This type of video surveillance is equivalent to having individual police officers closely follow, 24 hours a day, every person within a certain geographical space. That would be a police state, not a free society. We may not have a reasonable expectation that the police will never observe our activities in public spaces, either incidentally or as part of a targeted investigation. But surely it is reasonable to expect that they will not always do so. Melvin Gutterman articulates the underlying rationale for this conclusion as follows:

"In a variety of public contexts, we may expect to be casually observed, but may justifiably be outraged by intensive scrutiny. In these public acts we do not expect to be personally identified and subject to extensive surveillance, but seek to merge into the "situational landscape." The ability to move about freely without constant supervision by the government is an important source of individual liberty that must be addressed. A fear of systematic observation, even in public places, destroys this sense of freedom. Justice Douglas recognized the importance of this privacy value in a democratic society, commenting that free movement is as dangerous to a tyrant as free expression of ideas or the right of assembly and is, therefore, controlled in most countries."²⁸

I elaborated on this analysis in my reasons in Wise, in which the police installed an electronic device in a suspect's vehicle:

"The crucial point is that there is a qualitative difference between the risk one takes that one's movements in a car will be observed by others, including the authorities, and the risk that one's vehicle will be monitored by a device that will follow its every movement. This is the proposition that lies at the heart of the Wong decision. It is as if one had an agent of the state in the car constantly reporting one's location. ...."

". . .[T]here exists a crucial distinction between exposing ourselves to the risk that others will see us or overhear our words, and the much more pernicious risk that they will be electronically monitored at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between courting 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 track our every move. In both instances, it is constitutionally unacceptable that the state should be allowed to rest a justification for the unauthorized electronic surveillance of a given person on the mere fact that that person had been in a situation where he could be the object of scrutiny on the part of private individuals. To sanction state intrusions on this basis is to blind oneself to the fact that the threat to privacy inherent in courting the ordinary observations of other members of society pales by comparison with the threat to privacy posed by allowing the state to electronically monitor our every movement. Section 8 of the Charter exists to protect privacy and not solitude."²⁹

In Lopez v. United States, Justice Brennan stated that electronic enhancements made eavesdropping "more penetrating, more indiscriminate, more truly obnoxious to a free society."³⁰ The same can be said of general video surveillance. As Brennan, J. put it, electronic surveillance "makes the police omniscient; and police omniscience is one of the most effective tools of tyranny."³¹

Indeed, the type of targeted surveillance considered in Duarte, Wong, and Wise requires a considerable investment of time and resources on the part of the police. That in itself provides some check on their ability to intrude on the privacy of innocent individuals. We can presume that the police will not often make such an investment in the absence of some cause for suspicion. Yet because of the potential for abuse, we require reasonable grounds and prior authorization before we will permit it. General video surveillance, in contrast, provides no such check. It allows the police to easily and efficiently observe at close proximity the activities of anyone within range of the camera system, for any reason, however arbitrary or discriminatory. In R. v. Thompson, the Supreme Court of Canada warned that section 8 must be attentive to a "potentially massive invasion of the privacy" of persons not suspected of criminal activity.³² As I stated in my dissenting reasons in that case, "electronic surveillance is indiscriminately acquisitive; its reach extends to the conversations of the innocent and guilty alike."³³

There is reason to believe, moreover, that general video surveillance can be readily abused. There is evidence that it is often used to monitor unconventional (but not criminal) behaviour and to control members of marginalized groups.³⁴ As I noted in Landry, broad, discretionary search powers are more likely to be used against disadvantaged groups than the "economically favoured or powerful."³⁵

Duarte and Wong dealt with recorded electronic surveillance. The constitutionality of general video surveillance with section 8 should not depend, however, on whether or not it is continuously recorded. It is evident from Wong that individual autonomy is seriously threatened even when the surveillance is not recorded. The Supreme Court of Canada has repeatedly found that unrecorded police surveillance can constitute an unreasonable "search." In R. v. Kokesch, the Court held that a warrantless perimeter search of a suspect's property for evidence of marijuana cultivation violated section 8.³⁶ Similarly, in R. v. Evans, the Court concluded that section 8 was infringed when the police "sniffed" for evidence of marijuana cultivation after having knocked on the suspect's door. And in Wise, it determined that the installation of a relatively unsophisticated electronic tracking device in a suspect's vehicle constituted an unreasonable search.³⁷ As mentioned, the continuous recording of general video surveillance may heighten the threat to privacy. But the absence of such recording does not render the surveillance harmless.

Wise is a particularly instructive case in this context. There, the Court found that the tracking device violated section 8 even though it was only a "rudimentary extension of physical surveillance."³⁸ The device, the Court noted, "did not provide a visual record of the movement or position of the vehicle," was "capable of giving only a very rough idea of the vehicle's location," and was manifestly not capable of "tracking the location of the vehicle at all times."³⁹ It was used only as a supplement, and not a replacement, for physical surveillance. Though the majority concluded that the installation of the device and subsequent monitoring constituted only a "minimally intrusive search," it nonetheless concluded that it implicated a reasonable expectation of privacy and violated section 8.⁴⁰

The Court recognized in Wise, therefore, that technologically-aided physical surveillance in public spaces can violate section 8. The degree of enhancement in that case, moreover, pales in comparison with the enhancements provided by video surveillance networks. The device used in Wise was not only crude, non-visual, and supplementary. It also required installation and monitoring on a case-by-case, suspect-by-suspect basis. As discussed, video surveillance cameras permit the police to monitor scores of individuals, in fine visual detail, over a considerable geographic area, without any physical backup. It is difficult to imagine a more "maximally intrusive" search.

Lastly, it must be noted that unlike the situations in Duarte, Wong, and Wise, general video surveillance is not generally surreptitious. In the Kelowna case and most other video surveillance programs, notices are posted warning that the area may be monitored. But this should not be permitted to efface a reasonable expectation of privacy. As mentioned, determining whether there is a reasonable expectation of privacy in a particular situation is a normative, objective endeavour. The question that must be asked is "whether, by the standards of privacy that persons can expect to enjoy in a free and democratic society, the agents of the state were bound to conform to the requirements of the Charter when effecting the intrusion in question."⁴¹ I think that in this case that question must be answered in the affirmative. It would make a mockery of the Charter to allow governments to extinguish a legitimate expectation of privacy by simply informing citizens that their movements and activities may be monitored; particularly where the area monitored is a central public space heavily used for commerce, leisure, travel, and social interaction. Whether a person has a subjective expectation of privacy may be a factor in some circumstances.⁴² But the fundamental question is whether a reasonable person would consider that the investigative tec