On December 16, the Supreme Court of British Columbia dismissed a Charter application that challenged police use of surveillance cameras to continuously record a public space in an attempt to deter further hate crimes.
Police use of surveillance cameras is attracting attention, primarily because of the ability to integrate surveillance technology with facial recognition and other similarly advanced technologies.
This case is about the use of video surveillance alone. The Vancouver Police Department parked a “public safety trailer” or “PST” on a street in Chinatown after a hate crime incident. It did so to deter further incidents and demonstrate to the community that it was taking action.
The PST had cameras mounted on a 10 metre pole. The cameras had the capacity to pan (360 degrees) and zoom (32x), but the VPD only used them to capture 40 square meters of public space outside the community centre that had been targeted with hateful graffiti. The applicant was a local resident who at first didn’t appreciate what the PST was, but then avoided walking near it to avoid “state surveillance.”
Those interested in privacy advocacy and litigation know that privacy is a concept that people value in wildly different ways. The spectre of this type of surveillance would be shocking to some. The applicant in Ontario case R v Hoang (also unsuccessful in their challenge), described pole mounted camera surveillance by police as follows:
A pole camera has a Big Brother undertone to it. Undertone that becomes the very melody when you consider the contemporary availability of ubiquitous wireless networks and increased availability of miniature devices at nominal costs as well as the massive digital storage media now available. All this means entire streets, neighborhoods, cities could be continuously recorded. Unlimited amounts of information about what its citizens are up to could be gathered by the state authorities. The pole camera is truly “the camel’s nose under the tent.”
What strikes me about the VPD case is how well the VPD did in mitigating the risk that the application judge would take this view – both by good advocacy and good privacy management. Here is some of the mitigating evidence that led the judge to find that the applicant had no reasonable expectation of privacy in the circumstances:
- VPD adduced evidence of the hate crime itself, in detail. The crime involved egregiously racist anti-Asian graffiti.
- VPD tied this evidence to the broader context, which showed “a troubling increase in the targeted crime against the Asian community.”
- VPD adduced good evidence of privacy management, including evidence (a) that it configured PST software in consultation with the Office of the Privacy Commissioner of British Columbia, (b) that it generally minimizes the use of PSTs given their perceived privacy impact, and (c) that the entire chain of command was involved in the decision to implement the PST in Chinatown, based on a clearly articulated objective.
- VPD adduced evidence demonstrating rationality and proportionality of its response to the hate crime – i.e. evidence of its other investigative efforts and interventions, including deploying more officers to Chinatown.
This evidence swayed the judge to view the entire endeavour favourably, even though the record was not perfectly in favour of the VPD. One PST malfunctioned for a period of time, for example, during which someone tagged the PST itself with graffiti. One could use evidence like this to cast the VPD as Keystone Cops, but the application judge found this problem of no great consequence; equipment malfunctions, and the VPD (acting rationally and aligned with its objectives), replaced malfunctioning PSTs more than once.
On all the above facts and others, the application judge found the applicant had no reasonable expectation of privacy. In my view, there were two factors that drove this outcome. First, the surveillance was conducted openly, so the applicant was able to avoid being surveilled by altering how she travelled through her neighbour hood – i.e. she continued to have control over her informational privacy. Second, the surveillance footage was never used by the VPD or even intended to be used given the VPD’s deterrence objective. The judge said:
Had the VPD used the PST for an investigation, it may have provided them with information with which to help identify a suspect using ordinary investigative techniques. However, there is no evidence that the VPD had any ability to identify pedestrians as they walked through the field of view of the PST. Nor was identification of law-abiding citizens what the police were “really after”
The case therefore stands for the proposition that “deterrence video surveillance” of public spaces does not invite a “search” under section 8 of the Charter. It may be alarming to some, especially given the prospect of AI embedded facial recognition. Ironically, the alarmist picture of police surveillance trailers with powerful cameras on ten metre poles that could be connected to all sorts of matching technology supports the aim of deterrence. However, per Tessling, actual impact rather than “theoretical capabilities” determines the scope of section 8 rights.
Note that the judge also dismissed a allegation that the VPD breached section 7 of the Charter, finding that the choice between taking a “short detour” and being subject to video recording by the state does not impede a protected liberty interest.
Papenbrock-Ryan v Vancouver (City), 2024 BCSC 2288 (CanLII)