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Ottawa, March 15, 2002 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Honourable Lawrence MacAulay, Solicitor General of Canada, regarding video surveillance by the RCMP.
Dear Minister MacAulay:
I am writing to formally request your assistance in the following matter:
On October 4, 2001, I issued the finding of my investigation regarding a Privacy Act complaint about the RCMP's use of a video surveillance camera on a public street in Kelowna, B.C.
In the finding, I made clear that while the RCMP had brought itself into technical compliance with the letter of the Privacy Act during the course of my investigation by ceasing its continuous recording through the camera, it was still violating the spirit and intent of the Act by maintaining 24-hour-a-day surveillance through the camera without recording.
As I stated in my finding, "the very presence of video cameras, whether they are recording at any given moment or not, is what creates the privacy-destroying sense of being observed.The level and quality of privacy in our country risks being struck a crippling, irrevocable blow if we allow ourselves to become subjected to constant, unrelenting surveillance and observation through the lens of proliferating video cameras controlled by the police or any other agents of the state."
I therefore recommended that to be appropriately respectful of the privacy rights of Canadians, the RCMP should immediately cease this video surveillance and dismantle the camera. A copy of my letter of finding is enclosed herewith for your convenience.
The RCMP has flatly refused to heed my recommendation.
This is highly unusual and deeply disturbing. There is well-established precedent that when the Privacy Commissioner of Canada, as the Officer of Parliament mandated to oversee privacy rights, recommends a course of action to come into compliance with the spirit - not just the letter - of privacy law, federal institutions comply. As just two recent examples, I would cite the dismantling of the HRDC Longitudinal Labour Force file and the modified approach to the opening by CCRA customs agents of letter mail on behalf of Citizenship and Immigration Canada.
The RCMP's behavior in this instance is particularly unacceptable for three additional reasons.
First, there is no evidence that this dramatic new intrusion on privacy is necessary. Crime rates in Kelowna, as in all of Canada, have been steadily declining - not increasing - for the past five years. Nor has any evidence been adduced of an exceptionally serious and urgent crime situation in Kelowna that this camera was needed to address.
Second, there is absolutely no evidence that video surveillance cameras on public streets are effective in reducing or deterring crime. I asked the Commissioner of the RCMP for statistical evidence as to the effectiveness of the Kelowna camera after it had been in place for eight months. He was unable to produce any data whatsoever, even though this was supposed to be a pilot project. London, England, has more street surveillance cameras than any other city in the Western world, last year it had more such cameras than any preceding year - and last year in London, street crime went up 40 per cent.
And, finally, the RCMP - of all federal institutions - should as the national police force be exemplary in showing the maximum respect possible for the fundamental human right of privacy.
As the British Columbia Civil Liberties Association stated in its February 22 letter to you on this subject:
"After all, the motto of the RCMP is 'Maintain the Right,' not 'Skirt around the Right'.If Canadians are going to be asked to sacrifice their freedom for greater security and safety (in the aftermath of September 11), then the least we must expect from the police is that they will respect our privacy to the greatest extent possible. The use of video surveillance in public places defies this reasonable expectation."
Based on all these considerations, I am hereby formally requesting that you exercise your responsibilities as Solicitor-General and instruct the Commissioner of the RCMP to comply with my finding and recommendation by immediately dismantling the existing camera in Kelowna and refraining from any further such initiatives.
This request is of the greatest urgency because the current plan calls for the RCMP to install another five video surveillance cameras on the streets of Kelowna in the course of this month. Since I first brought this matter to your personal attention in an informal meeting on January 25, I am hopeful that there need be no further delay required for you to look into it.
I note that you expressed some preliminary thoughts on this issue in a CBC radio interview on March 2. Since the approach you took would not, in my view, satisfactorily dispose of the matter, I would like at this time to address the substance of the points you made in that interview.
First, you stated: "In fact, the person that would take the camera down would be the Attorney General of British Columbia. The RCMP are operating under provincial jurisdiction in the .a contract position. I'm not trying to escape the issue, but in fact that's who would, if there was a decision like that to make."
This is not correct.
Article 3.1(a) of the Municipal Policing Agreement between the Province of British Columbia and the Government of Canada, dated April 1, 1992, states:
"The internal management of each of the Municipal Police Services, including its administration and the determination and application of professional police procedures, shall remain under the control of Canada."
The RCMP's own document, Provincial Police Services Agreement: Interpretation and Administrative Procedures, 1995, states at page 19:
"The scope of ministerial (Solicitor General of Canada) direction of the internal management of the RCMP is qualified only by the independence from interference that is due to the police in the legal exercise of their peace officer powers, on a case-by-case basis. With this exception, and the accountability to the law that this exception entails, the RCMP is, in all matters relating to management, accountable to the Solicitor General who, in turn, is accountable to Parliament. The fact that the RCMP Act places certain authority in the hands of the Commissioner does not allow the Solicitor General to evade his responsibility for the direction of the Force. Should matters of concern to the Solicitor General arise with respect to administrative standards or procedures in general, it is within his power to issue directives.The Solicitor General of Canada is responsible to Parliament for ensuring that the RCMP operates in conformity with the law."
Indeed, the RCMP itself clearly accepts federal jurisdiction in this matter. That is why the British Columbia Information and Privacy Commissioner, David Loukidelis, had to make a complaint to me under the Privacy Act rather than deal with the issue himself. And it is why the RCMP resorted to the tactic of no longer recording continuously, to come into minimal technical compliance with the federal Act. If this video surveillance activity by the RCMP's own admission falls under the federal jurisdiction of the Privacy Act, then it also indisputably falls under your federal jurisdiction as Solicitor General, and the Attorney General of British Columbia has no role in this matter.
I therefore respectfully submit that it you have the exclusive jurisdiction, and the responsibility, to direct the RCMP to comply with my recommendation.
Second, you stated in the CBC radio interview that "about 80 per cent, or 80-plus per cent of the people in this area want the camera there."
In fact, this is not factually correct. The only source for this "80 per cent" figure, to which the RCMP makes frequent reference, is a single, very general question buried in a mail-in "Citizens Survey" conducted by the City of Kelowna. Only 997 of 2,500 questionnaires were returned, and the relevant question asked whether people agreed with the following statement: "Community safety cameras (approved by City Council and controlled by the RCMP) are an effective crime prevention tool."
When I briefly visited Kelowna in February, I encountered a significant number of people who are quite concerned about the RCMP's use of the street surveillance camera. In any event, I am sure you would agree that a fundamental human right such as privacy cannot be abrogated in a community by majority opinion. And, of course, nothing in the Privacy Act suggests that recommendations of the Privacy Commissioner should be subject to approval by plebiscite or opinion polling before a federal institution must heed them.
Finally, you stated in the CBC interview that "it's been a difficult time since September 11 to juggle the rights and to make sure that we have the proper measures in place."
As you know, I have said repeatedly since September 11 that privacy is not an absolute right and that it must be carefully balanced, on a case-by-case basis, against other vital societal needs such as security. But not even the RCMP or the mayor of Kelowna have tried to suggest that the Kelowna street camera is an anti-terrorist measure or in any way related to September 11, because to do so would be patently silly.
The camera long pre-dates September 11. There is no indication that the streets of Kelowna are frequented by, or any interesting target for, international terrorists. And if New York City had had so many street surveillance cameras as to turn the whole city into a virtual TV studio, this would have done nothing to prevent the terrorists from hijacking airplanes and crashing them into the World Trade Centre.
I consider this to be a matter of the greatest importance and urgency.
If the RCMP is able to continue using street video surveillance in Kelowna even though it is unnecessary, in no way demonstrably effective against crime, and a grave threat to privacy rights, this will set the worst possible example for police forces across the country.
As well, it is unacceptable, in terms of the effectiveness of Canada's privacy protection regime, that an important national institution such as the RCMP be able to cavalierly ignore the strongest possible recommendation from the Officer of Parliament mandated to oversee the privacy rights of Canadians.
I therefore respectfully request that you immediately direct the Commissioner of the RCMP to discontinue the video surveillance of public streets in Kelowna, in conformity with my finding and recommendation.
Privacy Commissioner of Canada
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Tel.: (613) 995-0103
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