Watch Out, They're Watching You

… the Charter is meant to protect those expectations on which we rest our belief that our society is one in which we are not exposed to unauthorized clandestine electronic surveillance on the part of the state. I take it to be beyond dispute that just as we hold to the belief that a free and open society is one in which the state is not free to make unauthorized recordings of our conversations, so too it is no less an article of faith in a society that sets a premium on being left alone that its members presume that they are at liberty to go about their daily business without courting the risk that agents of the state will be surreptitiously filming their every movement.

Justice Gérard La Forest, R. v. Wong, [1990] 3 S.C.R. 36

Video surveillance in public places has been a hot topic in Winnipeg these days. Touted as a tool for crime prevention and security, Winnipeg City Council recently approved a Surveillance Camera Pilot Project for 20 to 30 cameras in so-called high crime areas of the City.¹ Toronto established a similar pilot project at a cost of $2 million for 22 cameras, not including the costs related to monitoring or associated police time.² Winnipeg City Council has also approved the installation of cameras on each of Winnipeg Transit’s 535 buses at a cost of about $3 million.³ The proliferation of cameras in public places should concern us all.

A recent Free Press editorial advocated for so-called “passive” video surveillance as a means of deterring crime and promoting security. The cameras would record our activities but not be monitored in real time. We should not so readily discard our right to privacy, even in public places. This is especially true given that public surveillance cameras require a significant expenditure of public monies with no proven efficacy at preventing or solving crime. Indeed, a May 6th article from The Guardian reports that a “massive investment in CCTV cameras to prevent crime in the UK has failed to have a significant impact, despite billions of pounds spent on the new technology”. The UK experience provides little evidence that routinely monitoring citizens on public streets has any effect on security, crime prevention or one’s sense of safety.

We must avoid the urge to create a police state in the name of crime prevention. Having Big Brother watch or record our every move on a daily basis is hardly a way to make the public feel secure. The Supreme Court of Canada has repeatedly emphasized the overarching importance of privacy in a free society. The “restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state”. Few things are as important to our way of life as the amount of power the state gives to the police to invade our privacy.⁴

Of course, like most rights and freedoms we cherish, privacy is not absolute. Citizens value privacy but at the same time, the community insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns. The key is to strike an appropriate balance between the state’s need to search (whether for law enforcement or public safety at airports or some other public purpose) against the invasion of privacy which may entail disruption or embarrassment to law-abiding citizens.

Our Charter of Rights and Freedoms protects everyone from unreasonable search and seizure. We do not permit the ends to justify the means. In other words, we do not allow the police to conduct purely random searches of innocent people simply because it may result in the discovery of criminal conduct. Usually, though not always, the police must have reasonable and probable grounds to get a search warrant from a court, before conducting a search.

So where do we draw the line? It is true that, generally, we do not expect things we knowingly expose to public view to remain private. But does the fact we are in a public place deprive us of any reasonable expectation of privacy from government’s watchful eye? Being in public is an important consideration but surely privacy includes the right not to have the state watch its citizens randomly in the hope of preventing crime or catching a criminal. In the process, many innocent citizens may be forced to reveal intimate details of their lifestyle or personal choices.

The use of surveillance technology to record people randomly in public places is highly objectionable. Even if the use of cameras is widely publicized, it is effectively surreptitious. In a free society, citizens should not have to walk down the streets in the knowledge that they are being “watched” all the time. Even in public places, surveillance cameras have the potential to expose intimate details of lifestyle or personal choices. For example, what if you visit a place that sells adult videos or provides hair transplants or offers debt counselling? What if you visit a psychiatrist or a weight loss clinic or tattoo parlour or abortion clinic?

It is one thing to argue that we cannot prevent the risk that someone might see us enter any of these public places or otherwise observe our actions in public. It is an entirely different matter where the state, at its sole discretion, makes a permanent electronic recording of our every move in public, without any reasonable grounds to suspect criminal behaviour. As the Supreme Court remarked:

“To fail to recognize this distinction is to blind oneself to the fact 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.”⁵

Aside from electronically capturing (private or embarrassing) information about an innocent person’s lifestyle or choices, what guarantee is there that the tapes will not be misused? The potential for a flagrant abuse of privacy is only exacerbated by the ease of dissemination afforded by technology. (One only needs to be reminded of the recent example involving an indigent person in Winnipeg relieving himself in public, the surveillance tape of which was broadcast on the internet site YouTube). The off chance that police will catch something illegal on tape seems a flimsy justification for recording the everyday actions of law abiding citizens.

In 2004, the Supreme Court quoted a passage from George Orwell’s Nineteen Eighty-Four as a reminder about the dangers of government surveillance:

“ There was of course no way of knowing whether you were being watched at any given moment. … It was even conceivable that they watched everybody all the time … You had to live – did live, from habit that became instinct – in the assumption that every sound you made was overheard, and … every movement scrutinized.”⁶

Fortunately, Orwell’s ominous predictions of a society ruled by a police state have not come to fruition. At the same time, as Gérard La Forest, an eminent jurist and law professor, observed in one case, “we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy”. In his view, it was inconceivable that the state should have unrestricted discretion to target whomever it wishes for surreptitious video surveillance. While Justice La Forest was speaking about hidden surveillance, the fact that people are aware the cameras are present recording their every move offers little solace to anyone who values their privacy and autonomy. It is fundamentally irreconcilable with what is acceptable government behaviour. It is a hallmark of our society that citizens are free to go about their daily business without risk that their words or actions will be recorded at the sole discretion of the state.⁷

I do not suggest that video surveillance by police is never acceptable. It is a matter of balance and reasonableness. For example, airport security may dictate the use of cameras to protect the travelling public. We have come to expect this limited intrusion on privacy as both necessary and reasonable. Similarly, it cannot be disputed that people have a much lower expectation of privacy in public places than say, in our houses or cars or hotel rooms. But the use of video cameras in public has a pernicious effect on our sense of dignity and autonomy. We should not countenance such random surveillance in a free society that rightly eschews Big Brother. Apart from the Orwellian overtones, the unreasonableness of random video surveillance by agents of the state, without a search warrant, becomes patent when one considers the financial cost of the cameras measured against the lack of any cogent evidence that they will actually deter or solve crime.

- Michael Conner
President

¹April 23, 2008, ctv.ca http://www.ctvwinnipeg.ca/servlet/an/local/CTVNews/20080423/wpg_cameras_...
²March 3, 2008, cbcnews.ca
³April 8, 2008, cbc.ca
⁴R. v. Tessling, 2004 SCC 67 at paragraph 13
⁵R. v. Wong, [1990] 3 S.C.R. 36
⁶R. v. Wong, supra
⁷R. v. Wong, supra