BACKGROUND
The Deployment
Between April 3, 2020 and June 4, 2020, VPD deployed a PST to the Chinese Cultural Centre in Vancouver, BC in response to graffiti that contained racist and serious threats of violence against Asian people, including references to the Holocaust and Hitler, mass murder of Asian people, and the COVID-19 pandemic (the “Graffiti”) (the “Deployment”). The Graffiti caused fear in the Chinatown community, which was compounded by the fact that eighty percent of the businesses were vacant, and the public perception that there was a lack of police presence in the area.
VPD’s primary purpose for the Deployment was to deter any further similar criminal activity and to address the public’s safety concerns by creating the perception of police presence. In addition, the PST was intended to supplement existing CCTV from local businesses, the Cultural Centre, and other public spaces if further offences related to the Graffiti occurred at the Cultural Centre or if the Cultural Centre was otherwise targeted.
The first PST was replaced by a second PST at the end of May 2020. The PSTs were each equipped with four cameras set to record approximately 40 square metres of the sidewalk in front of the Cultural Centre. Once the field of view for each camera was set, the cameras were static.
Contrary to the Plaintiff’s allegations in the Notice of Civil Claim, none of the PSTs were equipped with heat-detecting or infrared technology or facial software that allowed VPD to see through walls inside buildings and vehicles or under clothing.
The PSTs were also configured to automatically overwrite and delete any footage after four days unless VPD preserved the data. With the exception of one screenshot showing the initial field of view of the PSTs, no data was preserved from the Deployment.
The Allegations
The Plaintiff alleged VPD violated her right to privacy, pursuant to the Privacy Act, RSBC 1986, c 373 (“Privacy Act”) and her rights under sections 7 & 8 of the Charter, by deploying the PST without prior judicial authorization to do so.
The Plaintiff alleged her image, location, behaviour, activities, dress and other personal information and data were captured, stored, analysed, retained, broadcast, transmitted, and shared with other institutions and organizations. She also claimed the information captured by the PSTs engaged information privacy interests going to her identity and biographical core, including information about her lifestyle, who she associated with and to what degree, where she shopped, where she lived, what she wore, and how she presented and other social and political aspects of her identity. The Plaintiff also alleged she was deterred from using public and private spaces within the scope and field of view of the cameras in a manner that breached her section 7 Charter rights.
The Plaintiff sought damages under section 24(1) of the Charter, a declaration that her rights were breached, and an injunction prohibiting VPD from using PSTs without prior judicial authorization.
TRIAL DECISION
The trial judge, Justice Elwood, noted this case was not about continuously recorded police surveillance in public spaces, the use of new surveillance technologies, or the collection, use, and disclosure of personal information by VPD. Justice Elwood accepted VPD’s evidence that the primary purpose of the Deployment was deterrence — to prevent further criminal behaviour at or around the Cultural Centre — while the secondary and tertiary purposes were to reassure the Chinatown community that VPD took their concerns about the pandemic-related hate crimes and lack of police presence seriously, and for investigating any further criminal activity, if it occurred.
Section 8 of the Charter: Protection Against Unreasonable Search & Seizure
Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure. The primary objective of section 8 is to protect privacy (the right to be left alone) and it recognizes that privacy is vital to individual dignity, autonomy and personal growth.
To establish a breach of section 8, a plaintiff must establish there was a search or a seizure and that the search or seizure was unreasonable. A “search” occurs where the state invades an individual’s reasonable expectation of privacy.
An expectation of privacy is considered reasonable where the public’s interest in being left alone by the government outweighs the government’s interest in intruding on the individual’s right to privacy in order to advance its goal. To make this determination, the court must assess the “totality of the circumstances” which is guided by the following questions:
(a) What was the subject matter of the alleged search?
(b) Did the plaintiff have a direct interest in the subject matter?
(c) If so, was the plaintiff’s subjective expectation of privacy in the subject matter?
(d) If so, was the plaintiff’s subject expectation of privacy objectively reasonable?
VPD argued at trial that there was no “search” within the meaning of section 8 of the Charter because the Plaintiff did not establish that she walked within the field of view of the cameras during the Deployment, therefore her image was never captured; and, even if the Plaintiff walked within the field of the cameras, no one ever accessed footage of the Plaintiff.
What was the subject matter of the search?
In order to determine the scope of the subject matter of a search, the court must consider “what the police were really after” by taking a broad and functional approach and examining the connection between the police investigative technique and the privacy interest at stake.
The “subject matter” of a search is defined both in terms of the information gathered and the tendency of the information sought to support inferences in relation to other personal information. Importantly, Justice Elwood reiterated that the focus of the enquiry is on the information that can actually be delivered by the technology used by the police, and not on the “theoretical capacity” of the technology.
Justice Elwood found that by deploying the PSTs, VPD was not investigating a crime or a suspect, and what VPD was “really after” was not information but rather an effect: to deter criminal behaviour and reassure the community. Justice Elwood held that this type of measure was analogous to parking a police patrol vehicle outside a synagogue during unrest in the Middle East.
Further, Justice Elwood found that VPD was not using the PSTs to conduct general video surveillance of the neighbourhood. Rather, he accepted VPD’s evidence that the surveillance was confined to recording a static view of public space outside the Cultural Centre, which was overwritten every four days, and that VPD did not monitor the video feed or preserve any footage. There was no evidence that VPD had any ability to identify pedestrians as they walked through the field of view of the cameras, nor was VPD “really after” the identification of law-abiding citizens.
Justice Elwood concluded that while the Plaintiff proved she walked through the field of view of the PST and it recorded her image at least once (which would have been deleted within four days), there was no evidence VPD accessed, reviewed, or distributed any images of her, or that VPD attempted to identify her or use the footage of her for any other purpose.
Justice Elwood disagreed with the Plaintiff that this case involved “indiscriminate untargeted mass video surveillance.” Justice Elwood concluded that the subject matter of the search was defined as a temporary recording of the public space outside the Cultural Centre that could be saved and used in the event of a criminal investigation, but never was.
Did the Plaintiff have a direct interest in the subject matter?
The courts recognize three types of privacy interest: personal privacy, territorial privacy, and informational privacy.
Justice Elwood held that personal privacy did not arise in this case because there was no evidence the PST could have recorded any details of the Plaintiff’s body she might want kept private. He held that informational privacy was also not engaged because the temporary image of the Plaintiff on the local hard drive of the PST did not reveal any biographical information or disclose anything that would tend to identify her or reveal details of her lifestyle or personal choices.
Territorial privacy includes an individual’s interest in places within a hierarchy, with a personal residence at the high end and a prison at the low end. In Justice Elwood’s view, the alleged search occurred on a public street and did not encompass the Plaintiff’s home, place of employment or any locations she frequented in the neighbourhood. Justice Elwood found that while the Plaintiff’s interest in the subject matter of the search engaged a territorial privacy, it was at the low end of the spectrum.
Did the Plaintiff have a subjective expectation of privacy in the subject matter?
Justice Elwood accepted the Plaintiff’s evidence that she thought the PST was recording her image and her movements, which she sincerely did not want. Therefore, he held that she had a subjective expectation of privacy in the subject matter of the alleged search.
Was the Plaintiff’s subjective expectation of privacy objectively reasonable?
Justice Elwood noted that courts have recognized a reasonable expectation of privacy may exist in public depending on the nature of the recording and the activity in which the person is engaged when recorded. He echoed the Supreme Court of Canada’s finding in R v. Jarvis, 2019 SCC 10, that being in a public space “does not automatically negate all expectations of privacy with respect to observation or recording” (see Jarvis at para. 41).
Justice Elwood concluded that, in some cases, a PST could give rise to a reasonable expectation of privacy over a person’s image or conduct in public view, depending on the duration, scope and nature of its deployment, its placement or because of other contextual or technological factors. However, he agreed with the Defendants that whether an expectation of privacy is reasonable must be decided on the evidence, and not on hypotheticals.
In considering the evidence, Justice Elwood held the recordings would have been temporary images of the Plaintiff on a public street, doing nothing remarkable, and that in the “totality of the circumstances” the Plaintiff’s subjective expectation of privacy was not objectively reasonable.
Section 8: Conclusion
In dismissing the Plaintiff’s claim under section 8 of the Charter, Justice Elwood accepted VPD’s evidence that VPD positioned the PST, set the cameras, and configured the system so as to minimize the intrusion on law-abiding citizens in the neighbourhood and that VPD had no intention of monitoring or deterring lawful behaviour. Further, VPD used basic video technology, conducted a limited search of a public street, and deleted the information collected.
Justice Elwood also rejected the Plaintiff’s arguments that VPD did not put forward any empirical data that PSTs are “efficacious” as a deterrent or investigative tool. Justice Elwood found empirical data was unnecessary for the purpose of the section 8 analysis and what was relevant was that VPD reasonably believed a PST could help prevent or if necessary, investigate, another racist incident at the Cultural Centre.
Justice Elwood reiterated that the reasonableness inquiry under the section 8 analysis requires an analysis of the actual information that could be generated by the existing technology and an evaluation of its impact on a reasonable privacy interest, not based on the theoretical capabilities of surveillance technology.
Section 7: Protection of Liberty Interests
The Plaintiff also claimed VPD deprived her of her liberty in a manner inconsistent with the principles of fundamental justice contrary to section 7 of the Charter because the “signal” sent by the PSTs that, “this is the VPD, and we are watching you” caused her to take unnecessary detours to avoid being recorded. Justice Elwood held that the decision to take a relatively short detour, and not be recorded, was not a fundamental personal choice on a matter critical to the Plaintiff’s dignity, autonomy, or independence, and dismissed the Plaintiff’s claim under section 7 of the Charter.
Privacy Act
Under section 1 of the Privacy Act, it is a tort to violate the privacy of another individual.
Justice Elwood held that, in this case, a violation of privacy caused by a PST recording would arise not from the recording itself, but rather from the publication or disclosure of certain information about a person without their consent or without ensuring to the greatest extent possible, that their identity is masked. In dismissing the Plaintiff’s claim under the Privacy Act, Justice Elwood reiterated his findings in the section 8 analysis that any recordings of the Plaintiff would have included an image of her on a public street, doing nothing remarkable, and that VPD did not access, distribute, or publish any images of her. Therefore, there was, and continues to be, no risk of disclosing any personal information about the Plaintiff.
CONCLUSION
Justice Elwood’s conclusions in this case provide important direction to police agencies in British Columbia and across Canada. In defending this case, we did not locate any other cases where the courts commented on the use of overt video surveillance as a tool for deterring crime independently from a criminal investigation.
Justice Elwood’s finding that VPD’s use of the PSTs in the circumstances was reasonable establishes helpful parameters for overt video surveillance in the future, particularly where a primary police objective is to deter future criminal activity. Similarly, Justice Elwood’s finding that VPD did not engage in broad and indiscriminate surveillance provides a helpful caution for police agencies. When using overt video surveillance technologies like the PSTs, police agencies should be prepared to identify a specific purpose for and scope of the video technology, and the least invasive means possible for accomplishing the desired outcome should be used to withstand legal scrutiny.
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