Canadian Laws For The Use of Video Surveillance Systems

    

Note: Is important for you to be aware that in addition to National laws, there may/will also be Provincial, City and Local Police laws that may/will be in effect in your area.

So check with each state agency to ensure you are not breaking any laws in your region.

Ignorance is no longer an excepted excuse for not being aware.

There are really three common points to ensure you utilize when deploying the surveillance devices, see items listed below, each are explained in detail throughout the article:

  1. The Law
  2. Intent
  3. Obligation

The Law

Implementation of hidden cameras in public places does not prohibit users in Canada.  Inside the Canadian law there is a continuing debate, which reveals how legitimate surveillance installations can be useful.

We should not forget that according to the Criminal Code, recorded footage can be used as evidence in litigation, since they provide proof of the crime and identification of the suspect.

Speaking about the legality of video surveillance, there is a law that clearly specifies organizations, as well as private individuals involved in operational - search operations, that they can use the equipment in their line of work to obtain covert video surveillance. Based on the foregoing, the legality of the use of video surveillance in a case is confirmed.   The agencies and individuals this pertains to, deals with investigators, who are contracted to prove infidelity or insurance scams, medical claims etc…

However, Canadian law referring to the Constitution states, a citizen has the right to complete privacy, and to collect information about an individual and its further distribution and use without his/her consent is prohibited.

As you can see there is a thin line which divines privacy and it could be argued that it is in contradiction with the law.

Intent

When a hidden surveillance system in Canada is used by law enforcement agencies, as well as organizations involved in private investigation, they cannot publish or distributed footage. However, there is no law that would let individuals make covert video surveillance at this time.

Furthermore: a growing popular trend has been the installation of surveillance equipment in offices. However, employers are not justified in using these devices to monitor how well the employee performs his/her duties.  They can only use the equipment to ensure the safe guard of the employees, visitors and the contents of the area being monitored

A ruling by an Ontario judge in 2011 in a case between a major rail company and its union, ruled that the company had the right to install devices to protect its property after having been vandalized twice, but did not have the right to use the equipment to monitor what its employees were doing;  or where its employees were.

Some employers have put in place a contract which defines that the video surveillance will monitor such occurrences,. But just like an employer has “NO” right to know your passwords, they have “NO” right to ask you to sign such a document. 

They “Do” have the right to record you, “Not Intentionally” for safeguard of person or property, but they “Do Not” have the right to use this video against you.  Unless you were stealing or damaging said property.

The law is also clear and states that any building which has these types of devices must display signs stating that video recording devices are present and in use.  If you choose to enter the establishment, then you are in fact acknowledging you are being recorded and that you automatically agree to it by entering said premises, thereby affirming the legality of installing security cameras.

Any corporation, company, individual, etc who installs this equipment and fails to post that the systems are in use, can be prosecuted under the law for invasion of privacy which all Canadians are entitled to.

The OPC (Office of the Privacy Commissioner) Guidelines for the Use of Video Surveillance of Public Places by Police and Law Enforcement Authorities

March 2006


Over the past ten years, digital cameras have shrunk in cost and size, and have proliferated across the country. Networking these cameras used to be a significant expense, but now thanks to the Internet, wireless hubs, and progress in digital streaming and image compression, transmission adds little expense or technical challenges.

As a result, and partly in response to a growing perception that video surveillance increases our security, video surveillance of public spaces is increasing rapidly, by public sector authorities, private sector parties, and property owners.

Video surveillance of public places nonetheless presents a challenge to privacy, to freedom of movement and freedom of association, all rights we take for granted in Canada. This is especially true when the surveillance is conducted by police or other law enforcement authorities.

Widespread Use by Law Enforcement

The use of video surveillance to detect, deter and prosecute crime has increased significantly over the last few years in Canada and abroad. Police and law enforcement authorities increasingly view it as a legitimate tool to combat crime and ward off criminal activity including terrorism. Recent events have heightened the interest of public authorities in deploying video-surveillance in public places. It is widespread in the United Kingdom and increasingly used by law enforcement and anti-terrorism authorities in the U.S. and Canada, particularly since September 2001.

Here at home, police and public security agencies monitor public parks and streets. Some cities have put in place video surveillance systems for specific festival periods. The Royal Canadian Mounted Police (RCMP) use cameras to monitor high-security areas such as Parliament Hill. Cameras are used to survey Canada-US border crossings. They are very extensively used in airports, and port authorities are becoming increasingly interested in using video cameras to monitor their facilities.

A Challenge to Privacy

Video surveillance of public places subjects everyone to scrutiny, regardless of whether they have done anything to arouse suspicion. At the very least it circumscribes, if it does not eradicate outright, the expectation of privacy and anonymity that we have as we go about our daily business.

The medium’s very nature allows law enforcement to observe and monitor the movements of a large number of persons, the vast number of whom are law-abiding citizens, where there are no reasonable grounds to be capturing a record of their activities. When video surveillance was done with tapes, where an operator had to watch each event to make a judgment about an individual, the volume of work kept misuse down to a minimum.

Now we have facial recognition systems and pattern recognition software that can massage the vast stream of images, so the actual use of the data increases, even if it is not by human operators. The likelihood of images being retained for further data mining increases simply because the workload is now potentially manageable.

The risk of systematic observations of groups or persons now exists, simply because it is technically feasible. On top of all this, fear of terrorism and street crime has driven the numbers of cameras up, as public officials seek to quell the fears of it’s citizens and gain control of the uncontrollable.

Proliferation of video-surveillance raises a concern that inevitably will be drawn about people, that the data will be used for trivial or discriminatory purposes. People are well aware of the presence of cameras, in fact there is a brisk trade in fake cameras because they are promoted as being as effective as real ones in deterring bad behavior. For these reasons, there is good reason to believe that video surveillance of public places by the police or other law enforcement authorities has a chilling effect on behavior and by extension on rights and freedoms.

Obligation

The Need for Guidelines

Given the widespread use by police of video surveillance in public spaces, and its potentially chilling effect on privacy, the Office of the Privacy Commissioner of Canada (OPC) offers these guidelines to help define and circumscribe the use of this medium. The guidelines below set out principles for evaluating the need for resorting to video surveillance and for ensuring that, if it is conducted, it is done in a way that minimizes the impact on privacy.

These guidelines were developed as a result of the work of a discussion group established jointly by the Office of the Privacy Commissioner of Canada and the RCMP with other stakeholders, following an investigation into the use of video surveillance in Kelowna which started in 2001.

In the conduct of these discussions, we reviewed the extent of use of video surveillance in Canada and abroad, the circumstances that gave rise to this use, the way in which video surveillance has been conducted, and an assessment of the effectiveness of the tool in curbing or investigating crime.

Video Evidence

The impact of recorded video evidence on the judicial process has been unprecedented: When confronted with a video recording of their alleged actions, many accused change their pleas from “not guilty” to “guilty.” But video evidence is not infallible. Even the clearly shot, properly authenticated and comprehensively documented video can be ruled inadmissible in a Canadian court of law.

No matter how good it is, video evidence is inadmissible if it cannot be shown to be relevant to the case at hand. “For instance, showing video of a hammer with dried blood and hair on it is not relevant unless it can be linked to the crime!

An acknowledged video evidence expert who lectures at the Ontario Police College, stated. “However, showing video of this hammer and the skull of the deceased, and being able to illustrate that the hammer head fits into the damaged skull of the deceased, is relevant.”

The rule of thumb: Do not let the quality and any apparent/imagined implications of the video cloud your judgment. For this evidence to be allowed in court, “it must be shown that the video evidence is relevant,”

Unquestioned Authenticity

We live in an age where recorded video can be edited to rearrange the chronology of events depicted, distort the passage of time, and show events out of sequence and context.  

The digital recording process, which usually involves ‘compressing’ video data to save hard drive space, can lead to data loss and affect image quality. If the chain of custody of the video evidence is not proven (e.g., because of inadequate documentation) the video evidence can be ‘thrown out of court’.

“In the old days, video images were recorded on videotapes,” Goldstein says. “When it came to submitting them as evidence, there was no problem: You just took the original tape into court and played it for the judge and jury. But today most [surveillance] video is recorded on hard disk drives, which are routinely wiped as new data comes in. This means that the video evidence has to be downloaded onto a DVD or digital tape, requiring very careful procedures, witnessing, and documentation to prove that you have an unedited ‘exact duplicate copy’ of the original.”

“The party tendering video evidence must establish how the video was recorded, what impact the recording process had on the captured video, whether the exporting of the video evidence has further comprised the reliability of the images and whether all relevant video has been obtained of the incident in question.” As a result, “video evidence must be authenticated in order to gain admissibility in court. Authentication can be accomplished by witnesses familiar with the video content — for example, the person who captured the video images — or technically, showing that the images have not be altered in any improper way. This is a requirement of both the Canada Evidence Act and common law.”

Probative versus Prejudicial

A long-time crime scene videographer with the Texas Department of Public Safety, who documented the Branch Davidian compound in Waco where 76 people died, including 20 children and two pregnant women.  Even in this horrific carnage, he shot his video in a methodical, factual and non-sensational manner. “I am not trying to make an impact with my footage, save the actual impact of what is being shot,” he explains.

There’s a very good reason why he and other crime scene shooters resist the temptation to shock their viewers: They know that if their video is too upsetting to the viewer, it could be ruled as prejudicial by the judge, and not allowed as evidence.

“The key is striking the balance between probative value and prejudicial effect,” says Goldstein. “If the video is too gruesome, even if it accurately portrays the crime scene, it can be excluded by the trial judge on the grounds of being overly prejudicial.

The reason is that the graphic nature of the video affects the jurors’ emotions, ‘arouses the sympathy and passions of the jury,’ and biases their impressions, which is precisely what the trial judge is trying to avoid.”

On the other hand, some crime scenes are unavoidably gory by nature. As a result, they cannot be ‘cleaned up’ to spare the jury’s feelings for fear of compromising the evidence.

So how do you strike the balance; either in the Crown or Defense roles? “An over-riding test for admissibility provides that the probative value of the evidence must outweigh the prejudicial effect,”

“‘Prejudice’ in this context means evidence that may operate unfairly against the defendant or that may be used incorrectly by the Trier of fact. Video evidence that is graphic in nature is not excluded for that reason alone. It depends on the issues in the case and the purpose for which the video evidence is tendered.”

Image Enhancement (Pros & Cons)

Police call it ‘The CSI Effect’: It’s the expectation on the part of some judges and juries that fuzzy video evidence can be infinitely resolved down to the smallest detail; just like the Hollywood detectives do on TV’s CSI: Crime Scene Investigation.

In real life, this doesn’t happen.  It is possible to enhance the brightness, contrast, and colour of a video image to bring out more detail by using computer programs such as Ocean Systems’ dTective. It must also be noted that dTective can also clarify an image by removing video noise and graininess, revealing details hidden beneath. But that’s about it.

The key is striking the balance between probative value and prejudicial effect.

However such “enhancement” comes with a risk: The more you enhance video, the more the admissibility of your final product can be challenged in court on the ground that the image has been altered and is no longer accurate or fair.

“I see this as a before-and-after situation.. “You need to bring both the original unenhanced (source) video — the before — and the enhanced (altered) version — the after — to court, so that the judge and jury can see what you’ve done and hear you explain why you did it.  This may forestall an objection from opposing counsel.”

Any defensible procedure for documenting and preserving digital video evidence must answer with these questions:

  1. Who captured the image and when? 
  2. Who had access to the image between the time it was captured and the time it was introduced into court? 
  3. Has the original image been altered in any way since it was captured? 
  4. Who enhanced the image, when and why? 
  5. What was done to enhance the image and is it repeatable? 
  6. Has the enhanced image been altered in any way since it was first enhanced?

Expert Video Witnesses

It is not sufficient to take video evidence into court, hit ‘play’ and assume that the jury will fully understand what they are seeing. To ensure that they do, you need to have the video explained to them by one or more qualified expert witnesses.

The reason: “Relying on video evidence without expert interpretation risks failure to reach the correct conclusions based on the evidence or worse, reaching the wrong conclusions. “Expert analysis and interpretation will assist in understanding the impact of such technical and practical issues as multiple camera views, frame rated, aspect ratios, compression, the tracking of people, vehicles and objects, and the alignment of audio to video images.”

“The Supreme Court of Canada, recognized and endorsed the analysis of video evidence at the image by image level, clearly accepting that merely playing surveillance video evidence will not maximize the value of such evidence,” A properly trained and qualified expert will have spent many hours examining the video evidence and can assist the Trier of fact in appreciating not only the overall events that are depicted but the fine details that are often otherwise overlooked or misunderstood.”

The Bottom Line

Video evidence is a lot like explosives, properly handled; it can demolish an opposing counsel’s case. Carelessly managed, it can blow up in your face.

For this reason, those offering video evidence need to use it with the greatest of care. Meanwhile, those trying to oppose such evidence should be meticulous in their attack, because there are ways that such evidence can be legitimately challenged as irrelevant, inaccurate, unfair, unauthenticated, and prejudicial, and thereby excluded from evidence.

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