Pbd Surveillance

SURVEILLANCE, THEN AND NOW:
Securing Privacy in Public Spaces

Ann Cavoukian, Ph.D.
Information and Privacy Commissioner
Ontario, Canada
June 2013

Acknowledgements
I would like to express my deepest appreciation to Stephen McCammon
for all his hard work and dedication! His invaluable contributions were
vital in giving this paper life.
I would also like to recognize Hannah Draper for her tireless efforts and
Jenny Ryu for her support in preparing this paper.

Information and Privacy
Commissioner,
Ontario, Canada

2 Bloor Street East
Suite 1400
Toronto, Ontario
M4W 1A8
Canada

416-326-3333
1-800-387-0073
Fax: 416-325-9195
TTY (Teletypewriter): 416-325-7539
Website: www.ipc.on.ca
Privacy by Design: www.privacybydesign.ca

Table of Contents
Executive Summary

1

Commissioner’s Foreword

5

Introduction

7

Part I – The Importance of Privacy

9

Part II – Looking Back

12

Securing Privacy in Government’s Information-Handling Practices

12

Securing Privacy in Private Communications and Activities

14

Part III – Current Challenges
Securing Privacy in the Online and Digital World

18
18

In the United Kingdom

19

In the United States

20

In Canada

21

Part IV – Meeting the Future Head On
Securing the Right to Privacy in Public Spaces

23
23

Automatic Licence Plate Recognition Systems

26

Video Surveillance and CCTV Cameras

31

Geolocational Tracking

38

DRONES: Drone-based Surveillance

41

Conclusions

49

Endnotes

50

Executive Summary
S

urveillance is growing, as are the technologies that extend its reach. But surveillance that
facilitates the sustained monitoring of people engaged in everyday activities in public is, in
Justice Gérard La Forest’s unforgettable words, “an unthinkable prospect in a free and open society
such as ours.”1

Unthinkable as it may be, the prospect of close and continuous surveillance is no longer simply
the stuff of science fiction. Governments now have access to precise and affordable technologies
capable of facilitating broad programs of indiscriminate monitoring. The unfettered use of these
technologies raises the spectre of a true surveillance state. To freedom-loving people, that is an
unacceptable prospect.
The purpose of this paper is to assist law enforcement, lawmakers, and the broader public in
understanding and protecting our fundamental right to privacy with respect to surveillance by the
state of our activities in public spaces through the use of ever-growing new technologies.
Of course, our expectation of privacy in public spaces is lower than in private places. However, it
is not entirely eliminated. Let us remember that the right to privacy protects people, not places.
In addition, as governments consider the implications of recent terrorism-related developments
in Canada and the United States, we must consider that new technologies may be able to provide
increased efficiencies for law enforcement and their performance of vital public safety functions.
How can free and democratic societies ensure that the public receives the benefits associated
with these new technologies, while continuing to provide strong privacy protections? To secure
our right to privacy in public, in an era of explosive new technologies, requires a proactive
approach that emphasizes the right to informational privacy owed to all citizens. The true value
of privacy must be recognized, and ideally enhanced, not diminished, in any effort to modernize
law enforcement powers.
A proactive Privacy by Design approach is central to designing and implementing the regulatory
framework needed to properly supervise state surveillance. It is our experience that, where the use
of a particular surveillance technology is justified, proportionate, and effective at delivering public
safety, a proactive positive-sum approach is available that will ensure that privacy, accountability,
and transparency are embedded into the legal and technical design specifications of any proposed
surveillance system.
–1–

In an effort to encourage a proactive approach to the use and supervision of the next generation of
surveillance technologies, this paper examines the following:
• The vital importance of privacy to freedom and liberty (Part I);
• How we came to secure privacy in government’s information-handling practices, as well as in
our private communications and activities (Part II); and
• A range of the current challenges to securing privacy in the online and digital world (Part III).
What emerges from this study is a set of 10 principles that we apply to law enforcement’s use of
four emerging surveillance technologies: video surveillance cameras and closed circuit television
(CCTV), automatic licence plate recognition systems, geolocational tracking, and drone-based
surveillance (Part IV).
One of the crucial principles is that the police power to deploy any form of intrusive surveillance
technology must be supervised under a system of prior judicial authorization. The importance of this
point cannot be overemphasized. Unfettered law enforcement access to surveillance technologies
that are capable of facilitating indiscriminate monitoring threatens our right to a reasonable
expectation of privacy, particularly where that monitoring may be continuous and persistent.
At the same time, not all surveillance programs are equally intrusive. For example, it is possible that
surveillance may be effective without being persistent or penetrating. Nonetheless, with respect
to the deployment of any surveillance technology, what will be required is the right mix of legal,
administrative and technical controls to ensure that their use is appropriate and accountable.
This paper sets out what we believe to be the controls necessary to ensure the appropriate and
accountable use of CCTV video surveillance cameras, automatic licence plate recognition systems,
geolocational tracking, and drone-based surveillance. Those controls include open, accountable and
proportionate information-handling practices that are subject to independent scrutiny, including
through notification and reporting requirements.
Whatever the future holds, we know that, in addition to privacy and freedom, people will require
safety and security. We believe that now, and for the foreseeable future, it is essential that we strive
to have both, in tandem. Freedom must be preserved from both terrorism and tyranny. While
eternal vigilance will be required to secure our fundamental rights, including our right to privacy,
we remain confident that we can have both public safety and personal privacy in public spaces.
There is neither reason, nor need, to settle for anything less.
In summary, our approach to the proper supervision of law enforcement’s use of new and emerging
surveillance technologies is based upon the following key principles:

–2–

Privacy Principles in Public Spaces
1. Data-gathering by the state should be restricted to that which
is reasonably necessary to meet legitimate social objectives, and
subjected to controls over its retention, subsequent use, and disclosure.
2. The state should be open and accountable for its informationhandling practices.
3. Compliance with privacy rules and restrictions should be subject to
independent scrutiny.
4. The authority to employ intrusive surveillance powers should
generally be restricted to limited classes of individuals such as
police officers.
5. The police power to deploy any form of intrusive surveillance must
be supervised under a system of prior judicial authorization.
6. Even where genuine emergencies make it impracticable for the police
to obtain judicial authorization before they employ surveillance
measures, the state must remain transparent and accountable
for its use of intrusive powers through subsequent, timely, and
independent scrutiny of their use.
7. A positive-sum approach to designing a regulatory framework
governing state surveillance can avoid false dichotomies and
unnecessary trade-offs, demonstrating that it is indeed possible to
have both public safety and personal privacy. We can and must have
both effective law enforcement and rigorous privacy protections.
8. Close attention must be paid to the privacy impact of new
technologies, business practices, and police tactics if we are to
continue to ensure strong, principle-based privacy protections.
9. Surveillance practices that intrude upon privacy by leveraging
new technological platforms or transmission processes must be
scrutinized to ensure that they are accompanied by sufficiently
rigorous privacy and accountability protections.
10. Eternal vigilance will be required to secure our fundamental rights,
including the right to personal privacy in relation to all public
spaces, including those found online and in other virtual spaces.

–3–

Commissioner’s Foreword
A

s we all adjust to the tragic bombings at the Boston Marathon, followed by the thwarted plot
to derail a VIA Rail passenger train travelling between Toronto and New York, and the flurry
of terrorism-related charges that ensued, it is critical that citizens of free and democratic societies
raise their voices in support of those committed to achieving both security and privacy.

In this climate, the authorities in multiple jurisdictions, including the United States, will be under
enormous pressure to overreact. Some officials are already arguing that they need “an enhanced ability
to monitor public places.”2 Others have even suggested that, post-Boston, “privacy is overrated.”3 Of
course, reasonable proposals to achieve real improvements in public safety should be welcomed, but
the notion that we should somehow dispense with privacy protections is clearly excessive.
Proposals to obtain security at any cost must be resisted. In the drive for unattainably perfect
security, we will invariably experience the real loss of privacy and freedom. As Benjamin Franklin,
one of the founding fathers of the United States, wisely observed, “They that can give up essential
liberty to obtain a little temporary safety, deserve neither liberty nor safety.”4
I believe we must continue to seek measures designed to provide both security and privacy, in an
accountable and transparent manner. Whether the issue is one relating to cybersecurity legislation
or surveillance technologies ranging from CCTV cameras to biometrics, to automatic licence plate
recognition to drones, we must reject the dated zero-sum, either/or, win/lose approach. By shifting
to a positive-sum mindset focused on win-win solutions, we will be able to accommodate multiple
legitimate interests, thereby avoiding unnecessary trade-offs and false dichotomies.

–5–

–6–

Introduction
[I]n this era of explosive technology, can it be long before a device is developed
that will be able to track our every movement for indefinite periods even
without visual surveillance? … This is the time to begin regulating the use of
electronic tracking devices while they are still in their infancy and before the law
enforcement authorities begin routinely using them as part of their work habits.
(R. v. Wise, 1992, Supreme Court of Canada Justice Gérard La Forest)

G

overnments around the world have long used technology to help prevent serious harm and
prosecute wrongdoing. Periodically, however, in order to protect our fundamental right
to privacy, lawmakers have had to respond by imposing controls on the use of intrusive new
surveillance techniques. The purpose of this paper is to assist lawmakers, law enforcement, and the
broader public in understanding and protecting our fundamental right to privacy, particularly with
respect to state surveillance of our activities in public spaces using new technologies.
By state surveillance, we mean surveillance carried out by the law enforcement agencies responsible
for investigating, prosecuting, and preventing serious harm. In the discussion that follows, we will be
referring to these agencies using the terms law enforcement, the police, and the state interchangeably.
As a regulator with oversight over law enforcement institutions, we have the greatest respect for the
important work they do. At the same time, as Justice Jackson of the United States Supreme Court
“pointed out in [a case dating back to 1948], law enforcement is a competitive enterprise in which
government agents will naturally seek any strategic advantage available to them. Pursuit of that
advantage naturally impels government agents, acting with the best of intentions, toward broader
and more intrusive forms of surveillance.”5

Twenty years have passed since the Supreme Court of Canada first grappled with the police use of
a primitive “beeper” to track a suspect’s car in R. v. Wise;6 nearly 10 years since the Court looked
at police surveillance from an airplane using an unsophisticated infrared radar camera in R. v.
Tessling.7 In the meantime, we have seen a significant increase in the state’s capacity for intrusive
surveillance. One emerging issue that raises substantial privacy concerns is the state’s use of drones
for domestic surveillance. Others include law enforcement’s use of geolocational tracking and
–7–

Internet-based surveillance. Left unchecked, such surveillance will have considerable implications
for the future of freedom and liberty.
Now, more than ever, it is critical that we revisit the way we supervise the state’s use of new
surveillance technologies. Neither a “wait and see” nor an individual “case by case” approach will
suffice. Legislative rules, independent oversight, policy guidance, and administrative and technical
controls can all contribute to the protection of privacy. To secure our right to privacy in an era of
explosive new technologies, however, requires a proactive approach that emphasizes the right to
informational privacy owed to all citizens.
The right to informational privacy or data protection includes the individual’s right to exercise
a significant measure of control over the collection, use, and disclosure of one’s own personal
information. In the context of state surveillance, individuals frequently do not have sufficient
knowledge and power to effectively control the collection, use, and disclosure of their own
personal information by law enforcement. Instead, the right to informational privacy must be
protected by both: (i) the implementation of Privacy by Design8 principles in the design and
operation of legitimate state-deployed surveillance; and (ii) the insistence on legal rules and
norms as found in systems of prior judicial authorization and other systems of independent
oversight and accountability. The latter rules and norms are the primary focus of this paper.
While special attention will be given to the Canadian context, we also look farther afield at
developments in the United States (U.S.) and beyond.
Before considering some of the current challenges and emerging technologies, let us first recall the
important role privacy plays in a free and democratic society, and look back at the emergence of
FIPs-based9 public sector privacy legislation and how we came to regulate some of the early and stillevolving surveillance techniques.

–8–

Part I – The Importance
of Privacy
The protection of privacy is essential to safeguard the “type of society which
Canadians, by the adoption of the Charter, have elected to live in.” The
constitutional restraints imposed on government limit its power to “pry into the
lives of the citizen [and] go to the essence of a democratic state.” Privacy
rights and the legal rules supporting them are designed to increase government
accountability while leaving individuals secure in the knowledge that “information
collected by government institutions is relevant to their legitimate programs and
operations.” 10

T

he right to privacy, which has its origins in the recognition of the inherent worth of the individual,
plays a central role in the promotion of “respect for individual dignity and autonomy” and the
“preservation of a free and democratic society.”11
Privacy includes the right to exercise control over one’s own person, personal spaces, and personal
information. It preserves an “essential space for the development of ethically grounded citizens
capable of engaging in the critical functions of public citizenship.”12 In shielding dissidents and
human rights advocates, it supports and facilitates freedom of speech and freedom of association.
It also helps to ensure freedom from interference and repression.
What of the right to privacy in public? “While the expectation of privacy in public spaces may
be lower than in private spaces, it is not entirely eliminated.”13 We must remember that the right
to privacy “protects people, not places.”14 In a 2012 case discussing the right to “public privacy”
— a privacy right closely associated with our right to informational privacy — the Ontario
Court of Appeal stated that “personal privacy protects an individual’s ability to function on a
day-to-day basis within society while enjoying a degree of anonymity that is essential to the
individual’s personal growth and the flourishing of an open and democratic society.”15 Indeed,
in the information and technology era we live in, the protection of our right to informational
privacy is increasingly critical to the preservation of our rights to life, liberty, and security of the
person — in essence, our freedom.

–9–

Properly understood, informational privacy protects our ability to live as both private and social
beings, secure in the knowledge that the state will not access our personal information or seek
to identify us, let alone record and retain our conversations, communications, movements, or
activities, without just cause. These rights are guaranteed under section 8 of the Charter of Rights
and Freedoms (the Charter), which provides that “Everyone has the right to be secure against
unreasonable search or seizure.”16 This right to be secure is not the security or safety interest
frequently invoked as a value weighing against or overriding privacy rights. Like its antecedent
in the Fourth Amendment to the U.S. Bill of Rights, the constitutional concept of security that
animates section 8 of the Charter was born of “the conviction that certain kinds of searches and
seizures [are] intolerable.”17
Today, both section 8 of the Charter and the Fourth Amendment recognize that everyone has
a right to be secure against the use of unreasonable state powers in the form of unjustifiable
and intrusive searches or seizures. As a general rule, this constitutionally mandated security
can only be provided by ensuring that intrusive powers are subject to timely, exacting, and
independent scrutiny.
In addition, privacy legislation such as Ontario’s Freedom of Information and Protection of Privacy
Act (FIPPA) and Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)18
ensure that people “have a right to expect the following: that their personal information will only
be collected for legitimate, limited and specific purposes; that the collection of their personal
information will be limited to the minimum necessary for the specified purposes; and that their
personal information will only be used and disclosed for the specified purposes.”19 In our view,
these general principles apply to all public space surveillance systems.
Of course, in addition to privacy and freedom, people require safety and security. Benjamin
Franklin’s resounding cry from 1775 bears repeating: “They who can give up essential liberty to
obtain a little temporary safety, deserve neither liberty nor safety.” This declaration is as relevant
today as it was then; we believe it is essential that we strive to have both together. We recognize that
freedom must be preserved from both terrorism and tyranny.
And the public clearly recognizes this too. In the aftermath of the Boston Marathon bombings, a
Time Magazine poll shows that 61 per cent of Americans are more concerned about the government
enacting new antiterrorism policies that will excessively restrict civil liberties than they are about
government going soft on security. Not surprisingly, at a time when private security cameras and
personal cellphone cameras are always rolling (and considering their role in the quick identification
and capture of the suspected bombers), Americans’ tolerance for video surveillance in public places
has spiked to a post-9/11 high (81 per cent are now in favour of increased cameras, up from 63 per
cent). However, there are also indications that there is wariness about enhanced video surveillance.
Two weeks after the bombings, support for use of facial recognition technology to scan public
events has declined from a September 2001 high of 86 per cent to 79 per cent. More telling is
the fact that “Americans are warier than ever about government monitoring of their cell phone
and email communications, with 59 per cent opposed to such actions.” In fact, only 38 per cent
of Americans favour increased powers with respect to the monitoring of these communications,
down from 54 per cent.20
– 10 –

Fortunately, we are not faced with the unpalatable and impractical choice of trying to prohibit the
state from using emerging technologies for public safety purposes. By adopting a Privacy by Design
framework and imposing legal, administrative, and technical controls to ensure that the use of
such technologies is appropriate and accountable, we can accommodate all legitimate interests and
objectives in a positive-sum, win-win manner, not the dated zero-sum model of win/lose, either/
or. In this context, it is critical to recall that our approach to wiretapping, video surveillance and
other forms of surreptitious electronic surveillance has allowed for necessary and effective law
enforcement while securing the public interest in a reasonable expectation of privacy. Success in
achieving a constitutionally appropriate regulatory framework has taken considerable time and
debate, but the lessons learned point to the continuing need for a principled approach in order to
sustain not only “peace, order and good government,”21 but freedom and liberty.

– 11 –

Part II – Looking Back
Securing Privacy in Government’s
Information-Handling Practices
[A] privacy protection policy intended to preserve informational privacy would
therefore attempt to restrict personal data-gathering activity to that which
appears to be necessary to meet legitimate social objectives and would attempt
to maximize the control that individuals are able to exert over subsequent use
and dissemination of information surrendered to institutional records keepers. 22

I

n the years following the adoption of the Charter in 1982, comprehensive FIPs-based public sector
privacy legislation was enacted across Canada. In one jurisdiction after another, federal and
provincial Parliaments established rules restricting the collection, retention, use, and disclosure of
personal information by institutions at all levels of government. These privacy rules also provided for
rights of access and correction, complaint mechanisms, and other means of ensuring government
compliance with and accountability for privacy requirements. The institutions bound by these rules
include police services and a range of other institutions that carry out law enforcement functions.
Independent Privacy Commissioners and ombudsmen were established to oversee compliance
with privacy requirements.
The public concerns that motivated this wave of legislative activity focused on the fact that, in
many circumstances, individuals were unlikely to have an effective choice to refuse to supply their
personal information to the state, information holdings were becoming increasingly extensive, and
there was public anxiety about government agencies sharing their holdings of personal information
and building comprehensive files on individuals.
As with criminal law safeguards provided for by prior judicial authorization, FIPs-based privacy
legislation was drafted with the intention of preventing privacy harms before they occur. Data
minimization forms a critical component of privacy harm prevention. This principle instructs
government not to collect, retain, use, or disclose any more personal information than is reasonably
necessary to meet well-defined, legitimate social objectives.
– 12 –

Like the Criminal Code of Canada (“Criminal Code”)23 rules providing for public reporting and
after-the-fact notice with respect to wiretapping, compliance with FIPs-based privacy legislation
ensures a commitment to openness and accountability. For example, government is generally
required to be open about its data-handling practices, ensure the accuracy of its information
holdings, and provide individuals the right to access and request a correction of their personal
information. In addition, Privacy Commissioners have a role to play in recommending improved
information-handling practices to ensure compliance with privacy requirements. Many may also
order an institution to comply with privacy requirements.
The resulting framework of privacy statutes is not based on a confidentiality analysis in which
privacy is only protected with respect to information that has been kept secret. Privacy statutes
generally apply to all personal information collected by government, whether captured on the street
or the Internet.24 Moreover, a government institution’s authority to collect personal information for
one purpose does not entitle it to use that same information for a secondary purpose. In addition,
while law enforcement officials have been granted exemptions from certain privacy rules,25 their
authority to collect, use, and disclose personal information must nonetheless fall within the scope
of their law enforcement duties and powers as circumscribed in legislation, under the common law,
and by the Charter.
The crucial principles to emerge with the rise of privacy legislation: Data-gathering by the state
should be restricted to that which is reasonably necessary to meet legitimate societal objectives, and
subjected to controls over its retention, subsequent use, and disclosure. The state should be open and
accountable for its information-handling practices. Compliance with privacy rules and restrictions
should be subject to independent scrutiny.
Further consideration will be given to the role of FIPs-based privacy legislation, as well as Privacy
by Design, in Part IV of this paper. In the meantime, let us turn to consider how we came to regulate
some of the early and evolving surveillance techniques.

– 13 –

Securing Privacy in Private Communications
and Activities
The right to privacy implies not just freedom from unreasonable search and
seizure, but also the ability to identify and challenge such invasions, and to
seek a meaningful remedy.
(R. v. Tse, 2012, Supreme Court of Canada Justice Rosalie Abella)
There is a longstanding relationship between emerging technologies, police surveillance tactics,
and the means by which we secure our right to privacy. Throughout this relationship, privacy has
shown itself to be resilient, yet not to be taken for granted, even with respect to privacy in activities
such as speaking on the telephone at home. Periodically, we face the challenge of law enforcement
wanting a free hand in the use of new or evolving surveillance technologies. In response, we must
ensure the proper supervision of their use of powerful new, evolving, and often undetectable
surveillance technologies.
Consider, for example, that in Ontario in 1972, the decision to authorize audio surveillance of
telephone conversations was made, not by a court, but by the police. At the same time, wiretapping
technology had “advanced so rapidly” that the Ontario High Court of Justice recognized that:
The apparatus used in snooping devices have been developed in such miniature and deceptive
form that it has become difficult to detect that one is being subjected to its secretive observation
or attention. Such listening is not now confined to apparatus directly connected with the
telephone or with wires leading to one’s residence. Devices have been developed that permit
listening in to conversations in a room without any apparatus being installed in the premises
whatsoever.26
While the High Court of Justice identified “a pressing need for legislation in Canada providing
protection to the individual … and regulating the area within which such devices may be lawfully
used,” it nonetheless found that, at that time, a person had “no legally enforceable right to the
privacy of his conversation even if held on the telephone.” In this context, the Court was reluctant
to “interfere with the judgment of the … Police [authority] as to the methods which it feels essential
to meet the task of retaining law and order and suppressing crime.”
Since this ruling, the public, governments, and Parliament, as well as the Courts, have given careful
consideration to the police use of electronic surveillance in the course of their duties, and to the
individual’s right to privacy. Beginning in 1974 and with periodic updates over the ensuing decades,
Parliament has laid down a detailed set of rules to both protect privacy in private communications
and allow for necessary surveillance by the police. Now found in Part VI of the Criminal Code,
these rules signal Parliament’s appreciation that “as a general proposition, surreptitious electronic
surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure
under [section] 8 of the Canadian Charter of Rights and Freedoms.”27
– 14 –

In Canada, this means the “presumed constitutional standard for searches or seizures in the criminal
sphere” is judicial authorization: “a prior determination by a neutral and impartial arbiter, acting
judicially, that the search or seizure is supported by reasonable grounds, established on oath[.]”28
In the early 1990s, this principle-based approach to protecting privacy was extended to video
surveillance as well as to “all existing means by which the agencies of the state can electronically
intrude on the privacy of the individual, and any means which technology places at the disposal of
law enforcement authorities in the future.” In concluding that all such surveillance must be carefully
regulated, the Supreme Court of Canada emphasized that:
[T]here is an important difference between the risk that our activities may be observed by
other persons, and the risk that agents of the state, in the absence of prior authorization, will
permanently record those activities on videotape … 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.29
As a result, in Canada, the police use of any device or investigative technique, including a television
camera or similar electronic device, generally requires prior judicial authorization wherever its use
would intrude upon a person’s reasonable expectation of privacy.30
The crucial principle to emerge over the two decades spanning 1972 – 1992: the police power
to deploy any form of intrusive surveillance must be supervised under a system of prior judicial
authorization.
The importance of this point cannot be overemphasized. Are there exceptions to this principle?
What about in “genuine emergencies?”31 If there must be an exception to the warrant requirement
in emergencies, how can we ensure that the state remains accountable for the use of such an
extraordinary power?
In an April 2012 case called R. v. Tse, the Supreme Court of Canada ruled that the state’s statutory
power to engage in warrantless wiretapping in an emergency was unconstitutional. The Court
gave Parliament one year to amend the relevant provision in the Criminal Code (section 184.4).
The fact that the nearly 20-year-old power includes strict statutory conditions to help ensure that
warrantless interceptions are only available in exigent circumstances to prevent serious harm was
found to be insufficient. What was missing was an effective means for ensuring accountability. In
this context, the Court understood that:
Unless a criminal prosecution results, the targets of the wiretapping may never learn of the
interceptions and will be unable to challenge police use of this power. There is no other measure
in the Code to ensure specific oversight of the use of s. 184.4. For s. 8 purposes, bearing in mind
that s. 184.4 allows for the highly intrusive interception of private communications without
prior judicial authorization, we see that as a fatal defect.32
In recognizing after-the-fact accountability as a critical privacy protection required under the
Charter, the Court emphasized that its ruling would protect privacy rights without impairing
important police functions:
– 15 –

The obligation to give notice to intercepted parties would not impact in any way the ability of
the police to act in emergencies. It would, however, enhance the ability of targeted individuals
to identify and challenge invasions to their privacy and seek meaningful remedies.33
As the deadline for complying with the Court’s order to ensure notice loomed, Parliament passed
Bill C-55, the Response to the Supreme Court of Canada Decision in R. v. Tse Act.34 Not only did the
bill amend the Criminal Code to provide that a person who has been the object of an emergency
wiretap must be notified of the interception within a specified period, it went further. The federal
Minister of Public Safety and provincial Attorneys General are now required to issue annual public
reports on the number of interceptions made under section 184.4. In addition, the wide range of
officials previously permitted to conduct electronic surveillance under Part VI of the Criminal
Code has been restricted to police officers. Mayors, bailiffs, prison guards, and other officials no
longer have access to this extraordinary power.35
The Court’s analysis in Tse and Parliament’s legislative response provide an excellent example of
the power of positive-sum thinking. The resulting regulatory framework achieves the goal of both
enabling law enforcement functions and protecting privacy, demonstrating that it is as possible as it
is desirable to have both.
The key principles to emerge from Tse: Even where genuine emergencies make it impracticable for
the police to obtain judicial authorization before they employ surveillance measures, the state must
remain transparent and accountable for its use of intrusive powers through subsequent timely, exacting,
and independent scrutiny of their use. The authority to employ intrusive surveillance powers should
generally be restricted to limited classes of individuals such as police officers. A positive-sum approach
to designing a regulatory framework governing state surveillance can avoid false dichotomies and

– 16 –

unnecessary trade-offs, demonstrating that it is indeed possible to have both effective public safety and
rigorous privacy protections.
Given the bewildering rate at which new, complex technologies and services continue to emerge,
how can we continue to ensure the preservation of our right to privacy?
The Supreme Court of Canada decided a case raising these kinds of issues in March 2013. TELUS v.
The Queen was initiated by a communications service provider determined to protect the privacy of
its texting customers. Canadians communicate with one another through millions of text messages
sent every day. As part of its standard business practices, TELUS briefly preserves records of such
conversations, solely for the purpose of “troubleshooting customer problems.”36
In the course of conducting a criminal investigation, the police may need to see a suspect’s text
message conversations. TELUS was faced with production orders requiring it to provide the police
with access to anticipated future strings of text messaging conversations shortly after they are
created and recorded. These court orders are easier to obtain and come with fewer safeguards than
Part VI wiretap warrants. Protections provided under Part VI — but missing from a production
order — include limits on: which officers can apply to conduct intrusive surveillance; when they
can apply (only as a “last resort”); and whose privacy will be invaded, where, and in what manner.
The protections also include accountability controls in the form of requirements that the authorities
provide: notice to the surveillance target(s) within certain timeframes; and annual reports to
Parliament concerning the number of applications made for authorizations under Part VI and the
details thereof.
TELUS successfully questioned whether the police should have too-ready access to the ongoing
conversations of Canadians simply because of the technical and customer service arrangements
facilitating their effective delivery. We applaud TELUS for challenging the routine collection of
such information by the police.
Faced with an emerging pattern of police applying for and obtaining hundreds of less onerous
production orders requiring TELUS to provide police with future access to strings of such
conversations, the Supreme Court of Canada observed that “technical differences inherent in new
technology should not determine the scope of protection afforded to private communications.”37
The Court held that when the police seek to seize an anticipated stream of text messages, they must
observe the same rigorous privacy and accountability protections governing the interception of other
live or ongoing electronic communications, such as voice calls. In so ruling, the Court recommitted
itself to the proposition that “the broad and general right to be secure from unreasonable search and
seizure guaranteed by s. 8 [of the Charter] is meant to keep pace with technological development
… to ensure that we are ever protected against unauthorized intrusions upon our privacy by the
agents of the state, whatever technical form the means of invasion may take.”38
The key principles to emerge from TELUS: Close attention must be paid to the privacy impact of new
technologies, business practices, and police tactics if we are to continue to ensure strong principle-based
privacy protections. Surveillance practices that intrude upon privacy by leveraging new technological
platforms or transmission processes must be scrutinized to ensure that they are accompanied by
sufficiently rigorous privacy and accountability protections.
– 17 –

Part III – Current
Challenges
Securing Privacy in the Online and
Digital World
[I]n Canadian society people can reasonably expect that they can move about
on public highways [or while “participating in activities on the Internet”] without
being identified and continually monitored by the state. If the state chooses to
engage in that kind of invasive conduct, it must be able to meet the constitutional
requirements of s. 8. … [W]hile the public nature of the forum in which an
activity occurs will affect the degree of privacy reasonably expected, the public
nature of the forum does not eliminate all privacy claims.
(R. v. Ward, 2012, Ontario Court of Appeal Justice David Doherty)

I

n 2012, in a case concerning the ability of the police to pierce online anonymity by obtaining
information linking an Internet Service Provider (ISP) customer to an Internet Protocol (IP)
address associated with a criminal offence conducted online,39 the Ontario Court of Appeal held
that: “Anonymity ‘to some degree at least’ is a feature of much Internet activity ... Depending on the
totality of the circumstances, [a person’s] anonymity may enjoy constitutional protection under s. 8
[of the Charter].”40 In this context, the Court affirmed that the right to privacy includes the concept
of “public privacy.” In particular, the Court’s reasoning clarified that public privacy is the right to
seek and find freedom from identification and surveillance with respect to activities engaged in
within public spaces, including on the street and on the Internet.41 In coming to this conclusion,
the Court held that:
Personal privacy is about more than secrecy and confidentiality. Privacy is about being left
alone by the state and not being liable to be called to account for anything and everything one
does, says or thinks.42
In reaching this conclusion, the Court gave careful attention to the implications of new technologies
and business practices, as well as the relationship between the police, ISPs, and ISP customers.
– 18 –

While the Court rejected the notion that law enforcement should be able to “unilaterally, and
without restraint, gather information [from third parties] to identify individuals engaged in public
activities of interest to the state,” it recognized that ISPs can, in the appropriate circumstances,
exercise their discretion to disclose the personal information of a customer to the police for the
purpose of assisting an active criminal investigation.43 In this further example of the power of
positive-sum thinking, the Court’s reasoning allows for the maintenance of law and order and the
protection of fundamental rights.
Contemporaneously, in Canada, the U.S., and the United Kingdom (U.K.), Legislators have
been asked to authorize very significant changes to the relationship between ISPs and other
communications service providers and the state. With these kinds of changes, communications
service providers would be much more tightly controlled by the state, particularly through legislative
proposals that would require the retention and warrantless disclosure of personal information to
law enforcement and security agencies. If adopted, such proposals threaten our right to digital
privacy and the related right to move about and participate in activities in social spaces without
the risk of being identified and monitored by the state. Fortunately, the latest developments suggest
that elected officials are becoming increasingly sensitive to the concerns their constituents have
about state surveillance and the right to personal privacy. Consider the fate of three such bills:
the U.K. Communications Data Bill; the U.S. Cyber Intelligence Sharing and Protection Act, and
Canada’s Bill C-30, the Protecting Children from Internet Predators Act.

In the United Kingdom
The U.K. government’s July 2012 draft
Communications Data Bill seeks to extend the
range of information that communications
service providers will have to store for up to 12
months. It would include — for the first time —
communications traffic data related to messages
sent on social media, by webmail, text, tweet, and
instant messaging, in voice calls over the Internet
and while gaming, in addition to emails and
telephone calls. This data is capable of showing
who was involved in what digital activity, and
when and where. Pursuant to current U.K. law,
a number of investigative bodies would have
warrantless access to this data, namely the
police, intelligence agencies, and revenue and
customs authorities. They would not need the
permission of a judge to see details of the time
and place of digital messages, provided that
they were investigating an offence or protecting
national security. The bill would, however, place
restrictions on warrantless access to the data by
other public bodies, including local authorities.
– 19 –

The draft Communications Data Bill was subject to substantial scrutiny by a joint committee of
the House of Commons and the House of Lords, which made its final report to Parliament in
December 2012. The report was highly critical of the draft bill. In response to this criticism, the
British government indicated that it will rewrite the legislation. As hinted at in the Queen’s May 8th,
2013 Speech to the Throne, the new draft is expected shortly. However, many remain concerned
about the risks associated with mandatory data retention. In this challenging context, many key
questions remain. For example, will the retention requirements and access powers be clearly spelled
out in the bill? Will they be justified and proportionate? Will the data be stored securely? Will law
enforcement access be properly supervised? Under what circumstances, if any, should the state be
allowed to have direct access to communications network traffic, for example, by way of automated
inspection tools capable of sifting through all network traffic? Answers to these questions may
dictate the state of digital privacy in the U.K. for years to come.
Meanwhile, the European Union Data Directive that requires European governments like that in
the U.K. to enact data retention legislation is being reviewed. And, in the background, European
Courts continue to declare provisions of some of the transposing national laws unconstitutional.
As observed in rulings from countries such as Romania and Germany, sweeping communications
data retention requirements expose people to the potential for arbitrary state action and generate
a perception of surveillance which — on its own — may impair the free exercise of fundamental
rights. In addition, those Courts have indicated that such laws may not be necessary, efficacious,
or appropriate given that criminals may be able to sidestep a data retention regime through
the use of offshore service providers and anonymous SIM cards. Sooner or later, the European
Court of Justice will likely have to determine whether the broad mandatory retention of
communications data comports with the “right to a private life” guaranteed in the European
Convention on Human Rights.44

In the United States
In February 2013, the proposed Cyber
Intelligence Sharing and Protection Act (CISPA)
was reintroduced before the U.S. Congress. It
passed the House of Representatives in midApril, 2013. If such a bill were enacted, it
would authorize broad information-sharing
between government agencies and private
sector companies (including of the content
of communications) and provide the private
sector with substantial immunity from
civil and criminal proceedings. At the same
time, CISPA provides for a degree of postdisclosure oversight by the Inspector General
and Congress.
Supporters of CISPA see it as a means of
helping companies and government share information to catch “bad actors” who breach networks
to steal information or sabotage systems. Critics worry it will trump existing privacy laws, and
– 20 –

allow information about the mobile activities and Internet communications of Americans to go
directly to law enforcement and intelligence agencies without effective checks and balances. Given
that companies are already permitted to disclose personal information to the authorities in a
range of related circumstances,45 it appears that CISPA sets the stage for unjustified and overbroad
information-sharing.
Meanwhile, President Barack Obama’s February 2013 Executive Order, “Improving Critical
Infrastructure Cybersecurity,” has been praised for focusing on cybersecurity solutions that do not
negatively impact civil liberties. That Order directs federal departments and agencies to use their
existing authorities to provide better cybersecurity, with an emphasis on increased informationsharing by government and the private sector, while adhering to “Fair Information Practice
Principles, and other applicable privacy and civil liberties frameworks and polices.”46
In this context, it is expected that cybersecurity proposals will face close scrutiny in the Senate in
the months ahead, particularly in view of President Obama’s April 16th, 2013 statement that he will
veto an insufficiently privacy-protective CISPA. Indeed, at the end of April, the Senate signalled
that protecting privacy will be critical to its efforts to strengthen cybersecurity. Media reports also
indicate that while the Senate may yet introduce a different information-sharing bill at some point,
the House version will not be advanced any further.47 Coming up with a good plan to protect
cybersecurity is, of course, essential, as is respect for privacy.
Meanwhile, on May 15th, 2013, U.S. Attorney General Eric Holder signalled that the U.S. Justice
Department supports privacy protections requiring the government to obtain a probable cause
warrant in order to access emails and other content stored in the Cloud. This provides further
reason to be hopeful for a comparable privacy-protective approach to cybersecurity legislation.

In Canada

In Canada, proposed legislative changes introduced before Parliament in February 2012 represented
the most significant attempt to rewrite the rules governing electronic surveillance since the 1970s.
Unfortunately, the bill’s drafters appeared to misconceive how Canadians interact with new
communications technologies and significantly underestimated the sensitivity of the personal
information involved. As a result, Bill C-30 amounted to a sweeping proposal for new surveillance
powers without adequate attention to necessary privacy protections.

– 21 –

In particular, the bill would have significantly increased the state’s surveillance capacity by: (i)
allowing for warrantless access to subscriber information identifying and linking customers to both
their online and offline, mobile and desktop activities; (ii) expanding, simplifying, and accelerating
court-supervised avenues for law enforcement access to and monitoring of other sensitive
digital information and activity; and (iii) giving the state significant control over the design of
communications systems and software. Privacy Commissioners, civil society groups, and a wide
variety of citizens spoke out forcefully against the privacy-invasive bill. While acknowledging
that it contained some positive elements, we warned that it “represented a looming system of
‘surveillance by design.’”48
An engaged public recognized the risks the bill posed to privacy in digital communications and
joined together to call on their elected representatives to reject the proposed surveillance powers.
To their credit, Members of Parliament and the government listened to the enormous public
outcry against overbroad and warrantless access and withdrew the bill in February 2013. Together
we demonstrated that the true value of privacy must be recognized — and ideally enhanced, not
diminished — in any effort to modernize law enforcement powers.
With citizens calling on government to withdraw or at least rewrite controversial privacy-intrusive
legislative proposals, now more than ever, it is crucial that we deepen our commitment to work together
to help ensure that: (i) first and foremost, Privacy by Design is built into new communications systems
and other technologies; and (ii) new surveillance and information-sharing regimes do not undermine the
independently-supervised rules and procedures which secure our shared rights to privacy, freedom, and
security of the person. Intrusive surveillance tools without adequate safeguards are a recipe for disaster.
Even if such disasters appear remote or hypothetical, history teaches us that injustice and tyranny
are preceded by a rising tide of intrusions on the privacy and dignity of ordinary citizens. In the
meantime, even in free and democratic societies, sophisticated and readily available technologies
add a whole new dimension to the state’s power to subject its citizens to surveillance. In the words
of U.S. Supreme Court Justice Brennan, “[t]hey make [surveillance] more penetrating, more
indiscriminate, more truly obnoxious to a free society. Electronic surveillance, in fact, makes the
police omniscient, and police omniscience is one of the most effective tools of tyranny.”49 The time
to maintain and strengthen democratic safeguards is now, while we enjoy a strong consensus about
respect for human rights and the rule of law.
People everywhere expect and deserve privacy in their online and digital activities. The protection
of both public safety and fundamental rights requires careful attention to the implications of
the relationship between law enforcement agencies and communications service providers. Law
enforcement’s power to gather information from third parties to identify individuals engaged in
activities of interest to the state must be subject to timely, exacting, and independent scrutiny in
the form of the appropriate combination of prior judicial authorization and/or subsequent notice,
reporting, and accountability requirements.
The preceding three principles may be particularly relevant to the emerging debate about Big Data,
Data Analytics, and online privacy. The key principles that have emerged from recent legislative
controversies and related criminal cases which we will consider in this paper are that: We can
and must have both effective law enforcement and rigorous privacy protections. Eternal vigilance will
be required to secure our fundamental rights, including the right to privacy in relation to all public
spaces, including those found online and in other virtual spaces.

– 22 –

Part IV – Meeting the
Future Head On
Securing the Right to Privacy in Public Spaces
… a moment’s reflection will confirm that as we go about our daily business
many, if not the majority, of our activities are inevitably carried out in the plain
view of other persons. The prospect that the agents of the state should be free,
on account of this fact alone, to make it their business to electronically track all
our comings and goings is simply an unthinkable prospect in a free and open
society such as ours.
(R. v. Wise, 1992, Supreme Court of Canada Justice Gérard La Forest)

I

t is one thing to be seen in public. It is another to be tracked by the state. Public spaces facilitate
a range of vital, everyday activities in a democratic society: transportation, recreation, shopping,
socializing, and artistic performance. “They are places in which political movements … make
themselves visible” and in which the individual is able to merge into the “situational landscape.”50
Similar things can be said about tracking people in open fields and woods — spaces which facilitate
solitary walks, intimacy and romance, as well as group worship.51 Warrantless surveillance that
facilitates the sustained tracking or monitoring of people engaging in everyday activities in public
and open spaces is, in Supreme Court Justice La Forest’s words, “an unthinkable prospect in a free
and open society such as ours.”
Unthinkable as it may be, the prospect of close and continuous surveillance is no longer simply
the stuff of science fiction. Increasingly sophisticated surveillance technologies are being deployed
by the state. Miniature surveillance drones, unseen digital recognition systems, and surreptitious
geolocational monitoring are readily available, making long-term surveillance relatively “easy
and cheap.”52 Unfettered law enforcement access to surveillance technologies that are capable of
facilitating indiscriminate monitoring risks intruding upon our right to a reasonable expectation
of privacy, particularly where that monitoring may be close and continuous.53 After all, the right
to privacy is of concern, not only to accused persons, “but to the general … public who have
every right to go about their law-abiding business without being the subject of random police
– 23 –

searches …”54 As previously indicated, we are not faced with the unpalatable and impractical choice
of trying to prohibit the state from using emerging technologies altogether, but simply of imposing
legal, administrative, and technical controls to ensure that their use is appropriate and accountable.
The Supreme Court of Canada faced the issue of the right to personal privacy in public spaces in
1992, in a case concerning the warrantless and non-consensual use of an unsophisticated tracking
device — a “beeper” — installed under a car by the police. In R. v. Wise, the Court determined that
police monitoring or tracking of a person’s movements on public roads intrudes on the reasonable
expectation of privacy, even if that expectation is a reduced or diminished one. Since this decision,
in Canada, the use of a tracking device has required a warrant.
The U.S. Supreme Court only faced this issue head on 20 years later, in 2012, in a case involving GPS
(or global positioning system) tracking.55 In U.S. v. Jones, the entire Court held that the government’s
warrantless use of a GPS tracking device violated an individual’s Fourth Amendment right to be
free from unreasonable searches and seizures by the state. While the Court was divided on whether
the violation resulted from the government’s physical intrusion on the individual’s vehicle in
installing the device to monitor his movements on public streets (the view of five justices), or from
a violation of the individual’s reasonable expectation of privacy from long-term GPS monitoring of
his movements (the view of four justices), both views recognize society’s privacy interests in public
places as a factor in any future Fourth Amendment analyses. This is significant given future cases
will likely involve new technologies like remote location tracking technologies that do not require
a physical trespass for their activation.
While both Canadians and Americans can take some comfort that they have a constitutional right
to a degree of privacy in public spaces, it is critical that lawmakers and the public begin to think
more proactively about the relationship between emerging technologies, police practices, and our
right to privacy in public. As indicated at the outset, we live in the era of explosive new technologies.
Governments now have access to technologies capable of facilitating broad programs of continuous
and indiscriminate monitoring — technologies that are increasingly precise, scalable, affordable,
and widely available. Unfettered use of these technologies by law enforcement and security agencies
raises the spectre of a true surveillance state.
At the same time, new technologies can provide increased efficiencies for law enforcement and
safety. How can democracies ensure that the public receives the benefits associated with these new
technologies, while continuing to provide strong privacy protections?
The answer to this critical question lies in the key principles and lessons that have emerged during
the course of our look back, from past to present. These are summarized here as follows:
In the remainder of this paper, we will consider the application of these principles to the way we
supervise law enforcement’s use of a number of surveillance technologies: automatic licence plate

– 24 –

Privacy Principles in Public Spaces
1. Data-gathering by the state should be restricted to that which
is reasonably necessary to meet legitimate social objectives, and
subjected to controls over its retention, subsequent use, and disclosure.
2. The state should be open and accountable for its informationhandling practices.
3. Compliance with privacy rules and restrictions should be subject to
independent scrutiny.
4. The authority to employ intrusive surveillance powers should
generally be restricted to limited classes of individuals such as
police officers.
5. The police power to deploy any form of intrusive surveillance must
be supervised under a system of prior judicial authorization.
6. Even where genuine emergencies make it impracticable for the police
to obtain judicial authorization before they employ surveillance
measures, the state must remain transparent and accountable
for its use of intrusive powers through subsequent, timely, and
independent scrutiny of their use.
7. A positive-sum approach to designing a regulatory framework
governing state surveillance can avoid false dichotomies and
unnecessary trade-offs, demonstrating that it is indeed possible to
have both public safety and personal privacy. We can and must have
both effective law enforcement and rigorous privacy protections.
8. Close attention must be paid to the privacy impact of new
technologies, business practices, and police tactics if we are to
continue to ensure strong, principle-based privacy protections.
9. Surveillance practices that intrude upon privacy by leveraging
new technological platforms or transmission processes must be
scrutinized to ensure that they are accompanied by sufficiently
rigorous privacy and accountability protections.
10. Eternal vigilance will be required to secure our fundamental rights,
including the right to personal privacy in relation to all public
spaces, including those found online and in other virtual spaces.

– 25 –

recognition systems, video surveillance cameras and CCTV, geolocational tracking, and dronebased surveillance. The approach outlined here builds on the constitutionally appropriate regulatory
framework required to secure our right to privacy and provide for effective law enforcement. It
does so by combining a Privacy by Design approach with a modern appreciation of our right to
informational privacy.

Automatic Licence Plate Recognition Systems
Automatic Licence Plate Recognition (“ALPR”) technology is used to take digital pictures of vehicle
licence plates in order to recognize and record vehicle licence plate numbers. It employs optical
licence plate detection software to seek out and recognize the presence of licence plates in view of
an ALPR camera. Once an ALPR system recognizes the presence of a licence plate, the plate number
is automatically extracted, at which point it can be recorded. ALPR systems can also leverage GPS
technology to record the date and time, as well as relative location of all recorded images.
While ALPR systems generally do not film vehicle occupants — their focus is on the licence plates of
vehicles — associated cameras could be configured to capture images of all drivers and passengers,
as well as vehicle licence plates. ALPR systems — whether they are focused on licence plates or
enhanced to create a more detailed record of a vehicle and its occupants — may be deployed openly
from a stationary platform such as a pole, or mounted on a vehicle such as a marked police cruiser.
Nonetheless, in many circumstances, they may operate in an opaque manner that may go unnoticed
by much of the affected public.56
In Ontario, basic ALPR systems are currently being used for valid law enforcement purposes
— in particular, those related to road safety. However, the use of enhanced ALPR systems to
maintain a detailed accounting of every licensed vehicle that passes along a stretch of road, clears a
check-point or enters into a park, town or city, 24 hours a day, seven days a week, would obviously
have grave implications for privacy. So too could their use to track and monitor the comings
and goings of political activists or anyone on a vaguely-defined “person of interest” watch list.
Such surveillance could intrude upon a reasonable expectation of privacy — even if it were not
conducted surreptitiously.
At the same time, a proactive, positive-sum approach allows for the accountable, limited, and
justifiable deployment of an ALPR system. In taking this approach, we can avoid unnecessary
trade-offs and demonstrate that it is indeed possible to have both public safety and personal privacy
on public roads.
In this context, it is significant to note that driving is a regulated activity and some surveillance
and supervision of vehicles and their drivers is expected. Surveillance of drivers, however, must
be reasonable. As discussed above, Canadians have a legally-recognized “privacy interest in
automobile travel” and the use of surveillance technologies in public spaces may violate section
8 of the Charter.57 In this regard, police roadside and highway operations may interfere with

– 26 –

the “fundamental right to move about in the community.”58 As such, they must be designed and
operated in a manner consistent with legislation, the common law, and the Charter. 
Even if ALPR surveillance only results in roadside stops in a small percentage of cases, the system
effects a digital identity check of drivers and their vehicles, typically for the purpose of identifying
whom to stop or subject to further surveillance. FIPPA, which sets out rules governing the collection,
use, and disclosure of personal information by government institutions in Ontario, permits the police
to collect personal information where it is to be “used for the purposes of law enforcement.”59 Section
2 of FIPPA defines personal information as “recorded information about an identifiable individual”
and “law enforcement” to include “policing.”60  Consistent with the overarching legal framework,
our office has determined that the words used for the purposes of law enforcement require a policing
institution to demonstrate that a collection of personal information is to be used by police acting
within the scope of their law enforcement powers.61 And, as indicated, in Ontario, ALPR systems are
currently being used for valid law enforcement purposes.
In this context, we note that, in considering the scope of law enforcement powers at the roadside
and in highway operations, the Courts have consistently determined that the powers granted to
the police for the purpose of enforcing the highway traffic laws, while significant, are nonetheless
limited. For example, in 1992, the Supreme Court of Canada held that:
[Highway safety] programs are justified as a means aimed at reducing the terrible toll of death
and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim
of the [roadside stop] program is thus to check for sobriety, licences, ownership, insurance and
the mechanical fitness of cars. The police use of check stops should not be extended beyond
those aims. Random stop programs must not be turned into a means of conducting either an
unfounded general inquisition or an unreasonable search.62
While a legitimate police interest beyond highway safety concerns need not taint the lawfulness of
an otherwise valid exercise of a police power, road and highway safety concerns do “not provide
the police with a means to pursue objects which are themselves an abuse of the police power or
otherwise improper.”63 In this context, the Supreme Court of Canada has observed that a random
stop program “designed as a ‘comprehensive check for criminal activity’ … was … fatally flawed
from the outset.”64
To date, ALPR surveillance systems have been used by Canadian police for purposes such as
recovering stolen vehicles and licence plates, enforcing rules prohibiting driving under a suspended
licence, and identifying “persons of interest” to law enforcement. Licence plate information
collected by police-operated ALPR systems is recorded and compared against other information
retained in police databases.
Concerned Privacy Commissioners have conducted investigations and reviews and engaged in
consultations with police about their use of ALPR systems. To their credit, the police have responded
by indicating their commitment to comply with Commissioner recommendations. As a result, we
understand that ALPR systems are now generally only being used by police to vet vehicles against
defined and appropriate hit-lists without retaining any data on law-abiding, non-hit vehicles or
their occupants.
– 27 –

– 28 –

Getting to this point has taken a positive, collaborative, but vigilant approach. Over the course
of the last 10 years, the Privacy Commissioner of Canada, as well as the Information and Privacy
Commissioners of British Columbia and Ontario have cautioned that, without significant controls,
ALPR systems are capable of subjecting law-abiding Canadians to excessive and improper
surveillance.
Beginning in 2003, our office accepted the use of mobile ALPR systems for the location and retrieval
of stolen vehicles, but cautioned against their use to enforce minor regulatory offences such as
parking infractions. In the intervening years, we have worked with the Ontario Provincial Police
(OPP) to ensure that the personal information of law-abiding drivers — non-hit data — is deleted
immediately after the ALPR system determines that there is no match with data on a properlycontrolled highway safety-related hit-list. Similarly, the Privacy Commissioner of Canada has
vigorously engaged the Royal Canadian Mounted Police (RCMP) over their retention of non-hit
information, describing their initial practices as “ubiquitous surveillance of law-abiding Canadians
who had committed no infraction.” In 2012, she reported that “the RCMP agreed to stop retaining
the no-hit information for the present.”65
At the end of 2012, the Information and Privacy Commissioner of British Columbia wisely
determined that “collecting personal information for law enforcement purposes does not extend to
retaining information on the suspicionless activities of citizens, just in case it may be useful in the
future.”66 In addition to recommending that police delete non-hit data immediately after the system
determines that it is not a match to licence plates linked to an RCMP alert list, she recommended
that the police limit their collection to reducing auto theft and motor vehicle violations. She also
recommended that the municipal police work with the RCMP to amend their alert list to restrict it
to addressing unlicensed drivers, driver-related court orders, and stolen vehicles.67
Bearing in mind the restrictions and recommendations described above, and applying our principled
framework to law enforcement’s use of ALPR systems, leads us to the following conclusions about
the deployment of ALPR systems.
ALPR surveillance practices that intrude on privacy by leveraging new technologies must come
with rigorous privacy and accountability protections. With those privacy requirements built into
the technological, administrative, and legal controls, the public can be satisfied that the fair and
efficient enforcement of highway safety is accomplished in a positive-sum manner.
In this regard, the deployment of ALPR systems should be restricted to circumstances where its
use is necessary to meet legitimate social objectives, such as the identification of stolen vehicles
or suspended drivers on a properly controlled hit-list. The resulting data collection should be
subject to strict controls to limit the retention and subsequent use and disclosure of any personal
information of law-abiding Canadians. Non-hit data should be deleted and destroyed immediately
after the system has determined that it does not match the data on the hit-list.
Recalling that ALPR systems may operate in a manner that may frequently go unnoticed by much
of the affected public, police services should provide the public with annual reports on their use of
ALPR surveillance. In order to ensure that law enforcement remains transparent and accountable
for its use of ALPR systems, such reports could, for example, provide:
– 29 –

• A detailed description of the times and locations at which ALPR surveillance is used;
• The purposes for which it is used;
• Whether it is deployed in a covert, overt, or opaque manner;
• How the applicable highway safety-related hit-lists are defined;
• How many hits are recorded; and
• The number of non-hits that are observed.
Each report could also:
• Include a declaration confirming that all non-hits were purged, deleted, or destroyed
immediately after the system determined that they did not match data on the applicable hitlist(s) and that they were purged, deleted, or destroyed in such a manner that the non-hit data
cannot be reconstructed;
• Indicate how many ALPR deployments have occurred that, for operational reasons associated
with the need to protect the integrity of ongoing police investigations, cannot be described in
detail in the report; and
• In the event that any non-hit data has been preserved, list the number of instances where such
data has been retained, and the length, purpose, and justification for its retention.
Finally, we must not lose sight of the issue of ALPR systems being used surreptitiously or covertly.
In our view, the authority to employ a covert ALPR surveillance system should be restricted to the
police. In addition, the police power to deploy ALPR surveillance surreptitiously or for purposes
other than those related to highway safety — such as to monitor the comings and goings of a
suspect or person of interest — should be carefully supervised under a system of prior judicial
authorization. Even where a genuine emergency makes it impracticable for the police to obtain
judicial authorization before they employ such surveillance, the state can and must remain
transparent and accountable for its use of such powers through subsequent timely, exacting,
and independent scrutiny of their use — facilitated, for example, by notification and reporting
requirements.

– 30 –

Video Surveillance and CCTV Cameras
Historically, pervasive video surveillance has posed a threat to privacy and our constitutional rights.
When controlled by government departments, video surveillance can provide the government with
massive amounts of personal information about the activities of law-abiding citizens, simply going
about their daily lives. When individuals know they are being watched, this may have a chilling
effect on their freedom to speak, act, and associate with others. Since individuals may censor their
own activities when they are aware of being watched, video surveillance may also be perceived as a
means of enforcing social conformity.
Privacy and the right of individuals to go about their daily activities in an anonymous fashion
not only protects freedom of expression and association, but also protects individuals from
intrusions into their daily lives by the government. Accordingly, when government organizations
wish to use surveillance technology in a manner that will impact the privacy of all citizens, there
must be clear justification for doing so. Specifically, the benefits of the technology should justify
any invasion of privacy.68
The appropriate deployment of video surveillance can also provide significant benefits. In the
aftermath of the April 2013 acts of terrorism in Boston and the alleged terrorist plot to bomb
a VIA Rail passenger train travelling between Toronto and New York, it is not surprising that
many have urged the deployment of increased video surveillance, including in public spaces,
with CCTV cameras controlled by the police. As stated at the outset, however, the need for
security must not come at the expense of privacy. Instead, we must consider achieving both goals
— privacy and security.
With respect to surreptitious video surveillance, recall that, in Canada, the police use of any device
or investigative technique, including a television camera or similar electronic device, generally
– 31 –

requires prior judicial authorization wherever its use would intrude upon a person’s reasonable
expectation of privacy.
As Justice La Forest observed in an opinion he provided to the Privacy Commissioner of Canada
regarding public space video surveillance in 2002:
[S]ome may be tempted to conclude that there can be no reasonable expectation of privacy in
what is by definition public space.
Such a conclusion, however, would be far too facile. Section 8 protects personal privacy in a host
of situations. It does not demarcate rigid, formalistic borders between private and public spatial
domains. As I stated for the Court in R. v. Dyment, “the spirit of s. 8 must not be constrained by
narrow legalistic classifications.” Determining whether individuals have a reasonable expectation
of privacy in a given context is a nuanced, contextual, and fundamentally normative enterprise.
As Justice Dickson held in Hunter, in each case “an assessment must be made as to whether
in a particular situation the public’s interest in being left alone by government must give way
to the government’s interest in intruding on the individual’s privacy in order to advance its
goals, notably those of law enforcement.” This assessment must be made in the light of all the
circumstances.69
Decisions dealing with public space video surveillance illustrate that we have a reasonable
expectation of privacy in the confines of a public washroom cubicle. As one Ontario Court judge
expressed it in 1995, “it would be difficult ... to find many ‘public’ places where there is more
‘reason’ for an ‘expectation of privacy’ than in the closed cubicle of a public washroom.”70
A 2010 decision of the British Columbia Supreme Court dealing with the criminal prohibition against
making a voyeuristic visual recording of a person in circumstances that give rise to a reasonable
expectation of privacy indicates that we “maintain a reasonable expectation of some privacy” in
public settings such as a park:
One can conceive of many examples where a person, sitting in a park, has his or her privacy
interests interfered with. A person, sitting on a park bench, who reads or writes in her diary
does not reasonably anticipate that someone may, with a telephoto lens, be reading that diary.
A person sitting on a park bench with a friend does not expect that their conversation may be
overheard and recorded with sophisticated eavesdropping equipment. A woman who lies on a
blanket in a park does not anticipate a person can, with a telephoto lens, peer up her skirt.
In each of these cases, though the person in question sits or lies in a public setting, they continue
to maintain a reasonable expectation of some privacy. The person’s expectation is certainly
lower and different than if they were in their own home, but it nevertheless exists and can be
violated.71
In this case, the Court concluded that we have a reasonable expectation that — while we may be
observed by others or incidentally captured in a third party’s photograph or video — we will not
be surreptitiously filmed with the zoom feature of a camera, particularly for a voyeuristic purpose.
In reaching this conclusion, the Court was mindful of “the quality and nature of the information
or interest at issue” and that:
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… the use of technology can transform what is reasonably expected and intended to be a private
setting into something that is completely different [and that] through the use of technology [it
is possible] to not only see or hear more acutely but to create a recording and to capture and
preserve an image or communication.72
In reaching these conclusions, the British Columbia Supreme Court commented on an observation
made by Justice Binnie in R. v. Tessling. Drawing on a number of Supreme Court of Canada
decisions dealing with physical rather than technology-driven searches, in Tessling, Justice Binnie
observed that “it is true that a person can have no reasonable expectation of privacy in what he or
she knowingly exposes to the public, or to a section of the public, or abandons in a public place.”73
This is a form of “risk analysis” (e.g., that when we are in public, we take the risk of being exposed).
Taking note of other Supreme Court decisions dealing directly with electronic surveillance in which
the Court clearly rejected the application of such a risk analysis, the British Columbia Supreme
Court ruled that “the suggestion that because a person is in a location which is ostensibly public
they can no longer continue to have any reasonable expectation of relative privacy is not tenable.
… [T]he assessment and interpretations of privacy expectations must keep pace with technological
developments. The failure to do so would lead to the inevitable erosion of [the] normative standards
that are central to reasonable privacy expectations.”74
Of course, surreptitious public space surveillance by law enforcement brings additional considerations
to bear and the case law reflects this. Courts have determined, for example, that law enforcement may,
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in the course of conducting an investigation, take pictures and videos of people at a shopping complex
or walking from their front door to their garage from a publicly accessible adjacent roadway.75 As
Justice La Forest put it in 2002:
We cannot reasonably expect the police to refrain from observing or overhearing persons they
consider to be suspicious. To require the police to have cause or obtain authorization for such
surveillance would unjustifiably limit their ability to investigate and prevent crime. Indeed,
it may be permissible for the police to use a video camera to observe and record a particular
suspect’s movements in public spaces. For this type of targeted surveillance, the relatively
minor intrusion into privacy may possibly be balanced by the state’s interest in effective law
enforcement.
In contrast, Justice La Forest then observed that “comprehensive and continuous video surveillance
is a very different matter:”
It permits the police to systematically observe, often at high resolution and across a broad
spatial expanse, everyone present within the camera’s or cameras’ range. This type of video
surveillance is equivalent to having individual police officers closely follow, 24 hours a day,
every person within a certain geographical space. That would be a police state, not a free society.
We may not have a reasonable expectation that the police will never observe our activities in
public spaces, either incidentally or as part of a targeted investigation. But surely it is reasonable
to expect that they will not always do so.
We agree. In our view, unfettered law enforcement use of, or access to, video surveillance technologies
that are capable of facilitating indiscriminate monitoring, particularly where that monitoring may
be close and continuous, is likely to intrude upon our right to a reasonable expectation of privacy,
whether those technologies are employed overtly or covertly. In light of the expanding use of
video surveillance technologies, not to mention the increasing sophistication of sensoring devices,
biometrics, and facial recognition systems, the future of privacy may well lie in ensuring that the
necessary protections are built right into the design of surveillance systems.
With respect to covert video surveillance, recall that, in Canada, the police use of any device or
investigative technique, including a television camera or similar electronic device, generally requires
prior judicial authorization whenever its use would intrude on a person’s reasonable expectation of
privacy. How are we to ensure a constitutionally appropriate regulatory framework with respect to
overt video surveillance?
Fortunately, we grappled with this issue first-hand in 2007 during our mass transit system
investigation concerning the use of video surveillance cameras by the Toronto Transit Commission
(TTC) in buses, streetcars, and subways, as well as on subway platforms and other transit property.76
Our investigation report (the “TTC Report”) brought to the fore questions about personal privacy
in public spaces. In public spaces, law-abiding people may be visible and audible to others,77 but
they should reasonably expect that they will generally be able to go about their lives without being
tracked and identified.
Video surveillance is often implemented in public spaces because of an expectation that it will
deter crime. Aside from research suggesting that some video surveillance may deter crimes like
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car theft in “hot spots,” this does not appear to be supported by the research.78 However, as was
demonstrated in Boston, cameras — including privately owned and operated cameras — can
serve as an effective tool in the detection, arrest, and prosecution of offenders. When an incident
occurs in the presence of video surveillance cameras, the authorities can respond quickly and
appropriately. In this context, the value of surveillance technologies to law enforcement appears to
be clear. At the same time, given its inherently invasive nature, privacy must be considered right
from the outset, wherever and whenever surveillance technologies are contemplated.
While there is “evidence to suggest that the general public recognizes that video surveillance may
be justifiable in certain high risk locations,”79 the public may be significantly less tolerant of more
widespread surveillance — for example, on residential streets — or of routine, active, real-time
monitoring. In addition, the public may not view a degree of video surveillance as unreasonable if
the resulting video recordings are routinely destroyed, in a reasonably short time frame. At the same
time, all legal privacy requirements must be met.
In this context, in Ontario, the state must be able to demonstrate that the collection of personal
information is in accordance with the statutory privacy rules in FIPPA and MFIPPA. In general
terms, the collection should be restricted to that which is reasonably necessary to meet legitimate
societal objectives, and subjected to controls over retention and subsequent use and disclosure.
The state should also be open and accountable for its information-handling practices.
It follows that, even where the deployment of video surveillance cameras is justified — for example,
for compelling safety and security purposes, law-abiding individuals are still entitled to the privacy
afforded by the ability to merge into the “situational landscape.” Accordingly, necessary public
spaces video surveillance must be restricted to ensure that:
• Personal information will only be collected for legitimate, limited, and specific purposes;
• The collection of personal information will be limited to the minimum amount necessary for the
specified purpose(s);
• Personal information will only be used and disclosed for the purpose(s) specified; and
• Personal information will be deleted pursuant to precise and appropriately limited retention
schedules and in such a manner that the personal information cannot be reconstructed.
With respect to the TTC — having found that its video surveillance program was justified — our
report rejected a “privacy versus security” paradigm in favour of a positive-sum, Privacy by Design
model. Under this model, privacy and security coexist through the use of Privacy-Enhancing
Technologies (PETs) and strong procedural controls.
PETs refer to information and communications technologies that incorporate measures to protect
privacy by eliminating or minimizing the collection, retention, use, and disclosure of personal
information. This is often referred to as “data minimization,” and increasingly represents a vital
component of privacy protection. An example of a PET described in the TTC Report is object-based
encryption that can be used to obscure the images of individuals captured by video surveillance.
Where an incident takes place requiring further investigation, the images may be decrypted,
but only by authorized parties. When deployed successfully, this technology reduces the risk of
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random, invasive, and unlawful surveillance of individuals, while permitting the use of images for
legitimate safety and security purposes — a doubly-enabling, positive-sum solution.
Beyond the effective implementation of PETs, Privacy by Design calls for privacy to be built
proactively into an organization’s information practices, by default. In the TTC Report, we
recommended that, among other things, the TTC:
• Install accessible signage providing clear notice of collection to all passengers;
• Require all employees accessing or using the video surveillance system to sign a written
agreement with the TTC regarding their duties and obligations in respect of video surveillance,
including a strong undertaking of confidentiality;
• Retain used surveillance images (i.e., those viewed for incident-driven, law enforcement
purposes) for a maximum of one year;
• Only retain unused images for a maximum of 72 hours (with surface vehicles — buses,
streetcars — overwriting unused footage every 15 hours);
• Keep abreast of research on emerging PETs and adopt these technologies, whenever possible;
• Implement a two-signature sign-off protocol for police requests for incident-driven remote
access to images recorded by the TTC surveillance system, with the Police Chief or his
designate being the second sign-off; and
• Undertake comprehensive privacy audits on an annual basis.
Consistent with the TTC’s policy of limiting law enforcement access to recorded images to the
investigation of specific incidents, the two-signature sign-off protocol is critical to ensuring that
privacy is strongly protected when providing the police with remote access to captured information
for law enforcement purposes. The TTC provided a copy of a Memorandum of Understanding
between the TTC and the Toronto Police Services Board (TPSB) addressing the police’s remote
access to and use of recorded images from TTC surveillance cameras. Incident-driven remote
access would take place from a computer, located within police headquarters, connected to the
TTC’s surveillance system through a fibre-optic cable. To ensure proper oversight of remote access,
the TTC and TPSB agreed on a double sign-off request protocol. This protocol requires that any
requests from the police to the TTC for access to images captured by video surveillance be signed
off both by the police officer requesting access, and by the Chief of Police, or his or her designate.
This additional protection against any unauthorized access to and use of surveillance images is an
excellent example of Privacy by Design in action, and has been working very effectively since being
put into place.
The recommendations in the TTC Report, as well as in our Guidelines for the Use of Video Surveillance
Cameras in Public Places (the Guidelines), still resonate today.80 Once an appropriate decision has
been made to deploy an overt video surveillance system, a Privacy by Design approach will ensure
that surveillance is implemented in a privacy-protective manner that meets multiple legitimate
needs — a positive-sum approach.

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The application of Privacy by Design to surveillance technologies is not confined to video surveillance
in mass transit systems. Privacy by Design principles may be applied to virtually any surveillance
technology in a positive-sum manner, to achieve both the protection of privacy and the security of
the public. We know that video surveillance technologies present a particular challenge for privacy
due to their extraordinary potential for data capture and retention. Recent events serve to remind us
that there are legitimate uses for some degree of surveillance in high-risk locations. The challenge is
to rein in, as tightly as possible, any potential surveillance-driven erosion of privacy. We can do this
by ensuring that strong controls are in place, through the implementation of appropriate legal rules
and administrative policies and procedures, the use of independent audits and other measures to
ensure strong oversight and accountability, and the continued development and implementation of
innovative PETs to preserve privacy, while effectively providing security in public spaces.

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Geolocational Tracking
Every day, millions of people move about while making use of location-enabled portable computing
devices and services. Many of us are inseparable from our cellphones, smartphones, and other
mobile devices and enjoy their associated location-related functionalities. More and more of our
cars and trucks feature GPS-assisted mapping and roadside assistance services. However, these
enormously useful tools come with a downside — they allow our movements and activities to be
tracked. Indeed, this surreptitious technology is sophisticated enough in its current form to be
configured to “track our every movement for indefinite periods … without visual surveillance.”81
Geolocational monitoring by the state may sometimes involve a police officer having to physically
install a GPS tracking device on, for example, a person’s vehicle. Alternatively, this functionality
can be activated remotely — for example, on a GPS-enabled device already in the possession of
a person of interest. Such remote activation may require the cooperation of a third party such
as a communications service provider. Geolocational tracking may also be effected by the police
deploying a “stingray” (or “IMSI catcher”) to trick nearby mobile phones and other wireless
communications devices into connecting to the surveillance device rather than a legitimate
communications tower. When devices unwittingly connect to the police, the stingray can see and
record their unique device ID numbers and traffic data, as well as information that points to their
precise location.
Close attention to the technical capacities and potential uses and abuses of this technology tells us
that such monitoring is a form of intrusive surveillance that should generally require supervision
under a system of prior judicial authorization. After all, geolocational tracking allows for close and
continuous surveillance. The privacy implications of GPS-facilitated locational monitoring were
described by U.S. Supreme Court Justices Sotomayor and Alito in U.S. v. Jones. Justice Sotomayor
focused on the wealth of information collected through even short-term use of this powerful
tracking technology:
GPS monitoring generates a precise comprehensive record of a person’s public movements that
reflects a wealth of detail about her familial, political, professional, religious and sexual associations
… “Disclosed in GPS data … will be trips the indisputably private nature of which takes little
imagination to conjure: trips to the psychiatrists, the plastic surgeon, the abortion clinic, the AIDS
treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union
meeting, the mosque, synagogue or church, the gay bar and so on.” The Government can store
such records and efficiently mine them for information for years into the future. … And because
GPS monitoring is cheap in comparison to conventional surveillance techniques and by design,
proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement
practices: “limited police resources and community hostility.”82
Justice Alito expanded on the implications for future police practices, pointing to the possibility of
more frequent resort to the use of such sophisticated and intrusive GPS surveillance in a wider array
of investigations:
The surveillance at issue in this case — constant monitoring of the location of a vehicle for
four weeks — would have required a large team of agents, multiple vehicles, and perhaps aerial
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assistance. Only an investigation of unusual importance could have justified such an expenditure
of law enforcement resources. Devices like the one used in the present case, however, make
long-term monitoring relatively easy and cheap.83
In view of the facts of the case before it, however, and out of respect for the limited role assigned to
the judiciary in a democracy, the majority of the U.S. Supreme Court was only prepared to declare
that the Fourth Amendment requires a probable cause warrant where police installation of a GPS
tracking device involves a trespass on a suspect’s property. Other “vexing problems,” the majority
said, should be left to be resolved as future cases required.84 At the same time, the Court appeared
to appreciate that the regulation of this form of surveillance may properly move elected officials
to enact a constitutionally appropriate regulatory framework.85 Such legislative protections may
be necessary to ensure the protection of privacy and freedom. As Justice Sotomayor expressed it,
“the Government’s unrestrained power to assemble data that reveal private aspects of identity is
susceptible to abuse [and] may ‘alter the relationship between citizen and government in a way that
is inimical to democratic society.’”86
As indicated above, the use of a tracking device has long required a warrant in Canada. To obtain
permission to install, maintain, and use a tracking device on anything, including a thing carried,
used, or worn by a person, the police must first satisfy a justice of the peace or judge that there are
reasonable grounds to suspect an offence has been or will be committed and the tracking device will
provide relevant information about that offence. The terms of the relevant Criminal Code provision,
section 492.1, would appear to capture GPS or any other electronic monitoring of the location of
a person’s mobile device or vehicle, whether that monitoring is activated remotely or first requires
that the authorities gain physical access to a person’s cellphone or car. However, in addition to
incorporating a lower suspicion-based rather than belief-based threshold, the warrant regime does
not require notice to individuals that they have been subject to tracking, or reports to Parliament
on how frequently and in what circumstances such tracking is conducted. The same shortcomings
apply with respect to section 487.11, the Criminal Code provision for warrantless use of a tracking
device in exigent circumstances — it too lacks notice and reporting safeguards.
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We believe that a positive-sum regulatory framework governing electronic locational surveillance
must allow for some necessary electronic locational surveillance, while securing our right to
privacy. It must ensure that a warrant is generally required, irrespective of how that surveillance
is activated (e.g., via a trespass or remotely) or whether, in any particular case, it is used for brief
periods or in a prolonged or continuous sweep. In addition, it must also provide for much greater
transparency and accountability. In other words, it must also provide for appropriate post-use
notice to those targeted for tracking. As the Supreme Court of Canada recognized in R. v. Tse,
such privacy protections would not impact the ability of the police to investigate offences or “act
in emergencies.” It would, however, “enhance the ability of targeted individuals to identify and
challenge invasions to their privacy and seek meaningful remedies.”87
In view of the foregoing, legislative changes appear to be required in Canada (as well as in the
U.S.) to ensure proper supervision and accountability in the use of this sophisticated form of
surveillance technology. Recalling the principles that guide our review of law enforcement uses of
new surveillance technologies, it is our view that, in addition to the existing warrant requirement,
the authority to employ geolocational tracking should generally be restricted to limited classes
of state actors such as police officers. Moreover, in order to ensure that law enforcement remains
transparent and accountable for its use, police services should, as a matter of routine, provide the
public with periodic reports on their use of geolocational tracking. Finally, and, as indicated, the
authorities should provide appropriate notice to those targeted for geolocational tracking.

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DRONES: Drone-based Surveillance
The word “surveillance” comes from the French word for “watching over.” “Sur” means “from
above” and “veiller” means “to watch.” In this context, it is easy to appreciate that drone technology
represents the “cold technological embodiment of observation.”88
Drones, also referred to as remotely piloted aircraft (RPAs) and unmanned aerial vehicles (UAVs),
present unique privacy challenges, due to their ability to carry a variety of sensors and to gather
information from virtually any vantage point — often for long periods, and on a continuous
and covert basis. Regarded as effective, low-cost alternatives to manned aircraft, drones can also
sustain a greater amount of G-force, allowing for more complex flight manoeuvring. Indeed,
improvements in navigation and sensor technology have made drones more reliable in terms of
flight control, while advanced telecommunications technologies permit control at high altitudes,
over considerable distances.89
Drones have attracted enormous controversy for their deadly use by the Central Intelligence Agency
and the U.S. military in Pakistan, Afghanistan, and other countries. Meanwhile, in February 2013,
U.S. President Barack Obama signed the FAA Modernization and Reform Act into law. The Act
explicitly allows the Federal Aviation Administration (FAA) to permit the domestic use of unarmed
drones, but fails to address the privacy of Americans. Transport Canada has been issuing Special
Flight Operation Certificates allowing the use of drones in Canada since 2007.
Of course, drones may be deployed in a myriad of contexts, for a wide range of purposes. And, like
so many technologies, drone-based surveillance can be properly deployed to provide enormous
benefits. Drones may assist with fighting fires and protecting remote critical infrastructure like
hydroelectric lines and oil and gas pipelines. They may also be used by law enforcement agencies in
search and rescue operations, at hostage-taking incidents and other emergencies, and to document
crime scenes and accidents. But drones may also be used to record people’s lawful participation
in events such as political protests, as well as to conduct sustained, intrusive, and surreptitious
surveillance of persons of interest.
Indeed, in the hands of law enforcement, drones may be equipped with sophisticated zoom cameras,
infrared thermal imagers, radar, location-based tracking tools, communication interception and
listening devices, and other surveillance technologies that can record and transmit digital data to
ground control systems. These technologies have become cheaper and more sophisticated, allowing
data capture at greater distances, with greater resolution and granularity. Advanced video analytics
can apply artificial intelligence to collecting and processing considerable amounts of video data. When
combined with facial recognition software, this could be used to continuously track individuals in
public, as well as in private spaces (e.g., through windows or perhaps even walls). Moreover, since
they can provide effective aerial surveillance at a fraction of the cost of manned vehicles such as
helicopters, it follows that drones could also facilitate a substantial increase in intrusive surveillance.
Meanwhile, the use of drones is expected to rise. In the U.S., the FAA has issued 1,428 licences to
police, universities, and federal agencies between 2007 and the beginning of 2013. Of these, 327
were still listed as active in February 2013.90 The FAA has estimated that as many as 30,000 drones
could be in use domestically in the U.S. by 2020, spurred on by the Department of Homeland
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Security and other government agencies. That estimate includes commercial and government
drones, but not private drone hobbyists or the peeping Toms already popping up in media reports.
For example, on May 29th, 2013, it was reported that, earlier that month, a Seattle woman looked
out of her upper-floor window to find an aerial drone hovering outside! “On the sidewalk next to
her house ... she found the man operating the drone [who] claimed that he was doing research and
that what he was doing was ‘perfectly legal.’”91 Whatever the purported justification for this kind of
intrusive activity, it should not go unregulated because it was on public property. Whether acting
on their own behalf, or on behalf of the state, citizens’ privacy must be protected.
In addition, the FAA recently announced that it has “achieved the first milestone included in the
2012 FAA reauthorization — streamlining the process for public agencies to safely fly [drones]
in the nation’s airspace,” by: (i) developing “an automated, web-based process to streamline” the
authorization process; (ii) creating “expedited procedures ... to grant one-time [authorizations] for
time-sensitive emergency missions such as disaster relief and humanitarian efforts;” and (iii) “[c]
hanging the length of authorization[s] from the current 12-month period to 24 months.”92
The FAA is now working to select six drone test sites. Drone testing, however, will be focused on
ensuring that drones do not “collide with planes or endanger people or property on the ground.”
And, while the FAA has announced a public consultation directed at protecting privacy interests
associated with test site operations, the chief of the FAA’s Unmanned Aircraft Systems Integration
Office has acknowledged that “the FAA has no authority to make rules or enforce any rules relative
to privacy.”93 That responsibility appears to lie primarily with Legislators and the Courts.
Between January 2007 and January 2012, Transport Canada issued 293 Special Flight Operation
Certificates for drone operations. These certificates do not address privacy. The “ultimate goal” of
Transport Canada’s UAV program is stated as being “to ‘normalize’ UAV operations within civil
airspace, [but] the industry technology is not mature enough, and the regulatory structure is not
in place, to support routine operations.”94 In our view, the challenges are, however, not limited to
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immature collision avoidance systems for drones operating beyond the visual range of their human
pilots — privacy issues must also be addressed, directly and explicitly.
Legislation to provide for a constitutionally appropriate regulatory framework for the domestic use
of aerial drones is moving ahead — in the U.S. Faced with mounting privacy-related concerns from
American citizens, we are delighted to see lawmakers at the municipal, state, and federal levels
taking a proactive, privacy-protective stance. In this context, it should come as no surprise that as
of May 28th, 2013:
• Cities and towns such as Charlottesville, Virginia, St. Bonifacius, Minnesota, and Seattle,
Washington have moved to restrict drone use in their communities;
• Twenty-eight state Legislators are actively considering passing drone legislation, most
to require law enforcement to get a probable cause warrant before using a drone in an
investigation;95
• Five states — Florida, Idaho, Montana, Tennessee, and Virginia — have already enacted laws
restricting the use of drones by either imposing warrant requirements or moratoriums;96
• The Department of Homeland Security has set up a working group to study the impact of
government UAVs on civil liberties and civil rights, as well as other legal and policy issues;
and
• A comprehensive bipartisan drone bill was introduced before the U.S. House of Representatives
in February by Ted Poe (R-Texas), Trey Gowdy (R-S.C.), and Zoe Lofgren (D-Calif.). Since
referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations,
H.R. 637, the Preserving American Privacy Act of 2013 (PAPA), would significantly restrict
the use of drones. Like similar bills from the last session of Congress (where it was first
introduced),97 under PAPA, court authorization would be required for government and law
enforcement drone-based surveillance, with exceptions for exigent circumstances, consentbased surveillance, and surveillance for the purpose of U.S. border control. PAPA would also
prohibit the arming of drones and make the intentional private use of drone surveillance
unlawful if it invades an individual’s reasonable expectation of privacy in a “highly offensive”
manner, regardless of whether there is any trespass.98
In contrast, it appears that, for the time being, Canadians may have to rely on the prudence of law
enforcement and the oversight provided by Privacy Commissioners and the Courts. Canadian
Legislators have yet to grapple directly with the emerging privacy issues associated with drone use.
The reason may be that, thus far, the public perceives drones to be a largely American phenomenon.
However, while they may not yet be in widespread use by police in Canada, the RCMP have a
fleet of approximately 20 drones. Meanwhile, in Ontario, the OPP and the Halton Police Service
are actively using drones. In addition to using them for purposes related to search and rescue
operations, hostage-taking incidents, and other emergencies, as well as the documentation of
crime scenes and accidents, the police appear to have used drones to investigate drug offences.99
In this context, it is time for a proactive public discussion of the issues. The key is to ensure that we
receive the benefits associated with drone-based technologies, while continuing to provide strong
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privacy protections, including in public spaces. Once more, we turn to the principles and lessons
that emerged during the course of our retrospective. They will instruct us as to how to ensure a
constitutionally appropriate regulatory framework with respect to drone-based surveillance.
And, once again, we recall that, in Canada, the police use of any device or investigative technique,
including a television camera or similar electronic device, generally requires prior judicial
authorization wherever its use would intrude on a person’s reasonable expectation of privacy.
Moreover, recalling our discussion of ground-based video surveillance, we join with our Canadian
Courts in asserting that Canadians “maintain a reasonable expectation of some privacy” on public
roads and other public settings such as parks, public squares, plazas, and playgrounds.
This conclusion is consistent with the weight of the case law dealing with manned aerial video
surveillance by the police over occupied and unoccupied private land, as well as over Native reserves.
As affirmed by Courts in New Brunswick,100 Ontario,101 Saskatchewan,102 and British Columbia,103
“an expectation of privacy, which society is prepared to recognize is reasonable, can exist in respect
of unoccupied lands,” as well as occupied lands, particularly with respect to individuals entitled to
be present on those lands. This body of law tells us that even low-tech manned aerial surveillance
of open private spaces generally requires a warrant, especially when that surveillance is conducted
at low altitudes.104
In one of the two cases where a Provincial Court would have permitted warrantless aerial video
surveillance of open spaces, the Supreme Court of Canada effectively set that finding aside, explicitly
leaving the critical issue of the constitutionality of “open-space searches” to a more appropriate
future case.105 In the remaining case, the Court determined that the police may conduct some
aerial surveillance from an airplane flying over adjacent private land at an altitude in excess of the
minimum altitude for permissible aircraft flyovers (over 500 feet for rural areas, over 1,000 feet for
built-up areas), where they used a commonly available zoom lens camera.106
In our view, an analysis that places too much emphasis on the altitude, angle, or availability of
surveillance tools and tactics must be rejected. The key question is whether the surveillance
provides a close or penetrating gaze. In this regard, we join with Justice Drapeau, writing for the
Court of Appeal of New Brunswick, where he states that:
For my part, I reject the suggestion that the application of s. 8 to [open spaces in an occupied
residential lot] is contingent on the presence of view-proof walls or roofs. Such an approach
would deny s. 8 rights to most open spaces in residential properties, and it would limit s. 8 rights
to the few who can afford such privacy shields. As a rule, lawful occupants have an expectation
of privacy in all open spaces within their residential lots that is qualitatively sufficient to invest
them with s. 8 protection against unlawful aerial as well as terrestrial searches.107
As the Saskatchewan Court of Queen’s Bench said in 2008, “there has been no determination by the
Supreme Court of Canada regarding the right to privacy on open, privately owned land.”108 That
remains the case to date. What of the Supreme Court of Canada’s 2004 ruling in R. v. Tessling? In that
decision, the Court determined that police did not need a warrant to conduct surveillance of the
patterns of heat distribution on the external surfaces of a private residence from an airplane using
an unsophisticated infrared radar camera (FLIR). In reaching this conclusion, the Court’s focus

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was squarely on “the quality of information that [existing] FLIR imaging can actually deliver.”109
The Court was careful to remind us that:
If, as expected, the capability of FLIR and other technologies will improve and the nature and
quality of the information hereafter changes, it will be a different case, and the courts will have
to deal with its privacy implications at that time in light of the facts as they then exist.110
While the intrusiveness of a drone operation will depend on its surveillance ‘payload,’ as well as
the circumstances, manner, and length of its deployment, it is self-evident that drone-facilitated
surveillance has the capacity to facilitate close, continuous, and indiscriminate monitoring.
Bearing in mind our 2012 paper, Privacy and Drones, as well as the approach emerging out of
U.S. Legislatures, we make the following further recommendations about the constitutionally
appropriate governance of the state’s use of drone-based surveillance.
As indicated throughout this paper, data-gathering by the state should be restricted to that which
is reasonably necessary to meet legitimate social objectives, and subjected to controls over its
retention and subsequent use and disclosure. The state should be open and accountable for its
information-handling practices. Compliance with these rules and restrictions should be subject to
independent scrutiny. In particular, we recommend that the authority to employ intrusive dronebased surveillance powers should generally be restricted to limited classes of state actors such as
police officers. Barring any genuine urgencies, the police should secure a warrant before conducting
any sophisticated drone-facilitated surveillance that targets one or more individuals, including
people participating in political activities including speeches, demonstrations, picket lines or other
forms of non-violent protests. The police should also be required to provide appropriate post-use
notice to those targeted for any drone surveillance.
At the same time, not all drone-facilitated police surveillance will be intrusive of privacy interests.
Like geological inspections or environmental surveys, police surveillance of a remote piece of
– 45 –

energy infrastructure will rarely intrude upon the privacy of any member of the general public. In
such circumstances, a warrant may not be necessary. Of course, any personal information collected
by law enforcement through such uses of drones will generally be governed by applicable privacy
legislation and should not be used for secondary law enforcement purposes.111
Other law enforcement uses of drone-based surveillance in search and rescue operations, at hostagetaking incidents, and to document crime and accident scenes also call for a different approach.
Drone use in geographically-confined, time-limited, emergency situations of these kinds may not
require a warrant. However, to ensure that the state remains transparent and accountable, all drone
use should be subject to additional restrictions, as well as subsequent, timely, and public scrutiny. In
particular, the decision to deploy a drone should be made by a senior officer. In all cases, images of
identifiable individuals captured by drone-based surveillance technologies should not be retained
longer than one year following their collection — or shared with third parties at all — unless there
is reasonable suspicion that the images contain evidence of criminal activity or are relevant to an
ongoing investigation or pending criminal trial.
Moreover, clear written policies and procedures governing the use of aerial surveillance technologies
should be adopted and made available to the public. To help ensure necessary transparency and
accountability, law enforcement agencies should also be required to issue annual public reports on
their use of drones. This will help both lawmakers and the public understand how drones work in
practice. Such reports could, for example, indicate:
• The purpose for which drones have been used and the circumstances under which their use
has been authorized, and by whom (i.e., a Court or a senior officer);
• The specific kinds of information that the drone(s) have collected about individuals;
• The length of time for which the information will be retained;
• The possible impact on individuals’ fundamental rights including the right to privacy;
• The specific steps the police service takes to mitigate the impact on individuals’ privacy,
including protections against unauthorized use and disclosure; and
• An individual point of contact for citizen complaints and concerns.
Throughout, any move to regularize drone use — for example, within a municipality — should
be preceded by a full public discussion. Consultations should be conducted with all relevant
stakeholders to examine the necessity of any proposed drone program and the policies required for
a justified and proportionate program that is acceptable to the public.
Finally, we must make a commitment to proactively embed privacy into the design of these new
technologies. By adopting a Privacy by Design framework, we can limit the negative impacts that may
otherwise be produced. The prospect of having our every move monitored, and possibly recorded,
raises profound privacy and civil liberty concerns. We must avoid, as many privacy scholars and
regulators have cautioned, “sleepwalking into a surveillance society.”112 Instead, we encourage law
enforcement authorities to take a proactive Privacy by Design approach to developing and operating
a drone program which truly respects privacy.
Privacy by Design principles should be adopted into all aspects of drone operations, particularly in
any circumstances where personal information may be collected, retained, used, disclosed, and/
or disposed of. Where possible, the collection of personally identifiable information should be
– 46 –

avoided. Drone operators should ensure that they are transparent with respect to any collection
of personal information. In addition, consideration should be given to employing object-based
encryption to obscure any images of individuals that are captured by drone-based surveillance.
Under this approach, where an incident takes place requiring further investigation, the images may
be decrypted, but only under the authority of two authorized officials. If deployed successfully, this
technology could reduce the risk of random, invasive, and unlawful surveillance of individuals,
while permitting the use of images for legitimate safety and security purposes. In addition, access
to drone data recordings would be restricted to authorized personnel only. Logs would be kept
of all instances of access to, and use of, recorded material, to enable a proper audit trail. Where
records are maintained electronically, the logs should also be electronic. Such measures would
ensure that the proposed design and operation of a drone system strictly limits privacy intrusions
to those which are absolutely necessary to achieve required, lawful goals.

– 47 –

– 48 –

Conclusions
I

n a free and open society such as ours, privacy plays a critical role. It is a constitutional right
“integral to an individual’s relationship with the rest of society and the state.”113 Legislatures,
Courts, and Privacy Commissioners continue to provide further instruction and guidance on how
to protect this fundamental right. A Privacy by Design approach is central to designing a regulatory
framework governing state surveillance, whether we are considering the use of video surveillance,
an ALPR system, geolocational tracking, drones, or any other new surveillance technology.
Now more than ever, calls for increased public surveillance must be vigorously questioned.
Technologies capable of facilitating broad programs of continuous and indiscriminate monitoring
must be subject to strict controls. As Justice Ian Binnie stated in 2004:
Efforts to counteract terrorism are likely to become part of our everyday existence for perhaps
generations to come. … The danger in the “war on terrorism” lies not only in the actual damage
the terrorists can do to us but what we can do to our own legal and political institutions by way
of shock, anger, anticipation, opportunism or overreaction.114

The same cautions apply in respect of any proposal to obtain “a little temporary safety” at any cost.
Excessive surveillance is anathema to freedom and liberty, and must thus be opposed.
In the words of Justice Binnie’s colleagues, Justice Iacobucci and Justice Arbour, however, “we must
not forget that the legislative and executive branches also desire, as democratic agents of the highest
rank, to seek solutions and approaches that conform to fundamental rights and freedoms.”115
Fortunately, it is our experience that, where the use of a particular surveillance technology is
justified, proportional, and effective at delivering public safety and privacy, a proactive, win-win,
positive-sum approach is available that will ensure that privacy, accountability, and transparency are
embedded into the legal and technical design specifications of any proposed surveillance system.
While eternal vigilance is required to secure our fundamental rights, including the right to personal
privacy, we remain confident that we can have both public safety and personal privacy in public
spaces. There is neither reason, nor need, to settle for anything less.

– 49 –

Endnotes
1 R. v. Wise, [1992] 1 S.C.R. 527 at para 82.
2 Phil Mattingly, “Boston Police Chief Urges Surveillance Increase After Attack,” Bloomberg, (9 May 2013) online:
<http://www.bloomberg.com/news/2013-05-09/boston-police-chief-urges-surveillance-increase-after-attack-1-.html>.
3 Richard A. Posner, “Privacy is Overrated,” New York Daily News, (28 May 2013) online: <http://www.nydailynews.
com/opinion/privacy-overrated-article-1.1328656> . See also Commissioner Ann Cavoukian Letter to the Editor, New
York Daily Times (1 May 2013) online: <http://www.nydailynews.com/opinion/2-school-lunch-privacy-ed-article1.1332648?pgno=1>.
4 Benjamin Franklin, Memoirs of the Life and Writings of Benjamin Franklin (London: Henry Colburn, 1818) at 270.
5 Danielle Citron and David Gray, “A Technology-Centered Approach to Quantitative Privacy,” (14 August 2012) at 4. See
also Danielle Citron and David Gray, “The Right to Quantitative Privacy” (2013) 98 Minnesota Law Review at 4.
6 Supra note 1.
7 R. v. Tessling, [2004] 3 S.C.R. 432.
8 An important means of achieving proper privacy is through the Privacy by Design (PbD) approach. PbD’s approach is
to embed privacy in the design specifications of information technologies and systems, accountable business practices,
and physical design and networked infrastructures, as the default, right from the outset. PbD principles accommodate
all legitimate interests and objectives in a positive-sum, win-win manner. PbD avoids the pretense of false dichotomies,
such as privacy versus security, demonstrating that it is possible, and far more desirable, to have both. PbD represents
a significant shift from traditional approaches to protecting privacy, which focus on setting out minimum standards
for information management practices, and providing remedies for privacy breaches after the fact. PbD requires an
evolution in the way that private organizations and government institutions think about privacy — moving from a
reactive mode to a proactive one. Similarly, enshrining a PbD approach in statutes, regulations, administrative codes,
and best practices may require an evolution in how policy and lawmakers approach privacy rule-making. For example,
surveillance-related rule-making should ensure that surveillance is accountable, limited, and transparent.
9 FIPs refers to the Fair Information Practice Principles, online: < http://www.priv.gc.ca/resource/tool-outil/english/fairinfo-practices.asp>.

– 50 –

10 R. v. Patrick, [2009] 1 S.C.R. 579 at para 20. See also R. v. A.M., [2008] 1 S.C.R. 569 at paras 35 and 36; R. v. Dyment,
[1988] 2 S.C.R. 417 at pp. 427-428; and H.J. Heinz of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441 at
para 22.
11 Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para 71, per La Forest J. dissenting in the result; and Lavigne
v. Canada (Commissioner of Official Languages), [2002] 2 S.C.R. 773 at paras 24-25.
12 Supra note 5 (“A Technology-Centered Approach to Quantitative Privacy”) at 17.
13 Office of the Information and Privacy Commissioner of Ontario, Privacy and Video Surveillance in Mass Transit Systems:
A Special Investigation Report — Privacy Investigation Report MC07-68 (3 March 2008) at 2.
14 Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145.
15 R. v. Ward 2012 ONCA 660.
16 Canadian Charter of Rights and Freedoms, Part I of the  Constitution Act, 1982, being Schedule B to the Canada  Act
1982 (UK), 1982, c 11. ss. 8 and 24(1).
In the majority of section 8 cases, search and seizure issues arise in the context of criminal proceedings where the primary
focus is on a specific factual context of a particular police investigation, the rights of the accused, the admissibility of
evidence, and the application of the section 8 and 24(1) tests. While these issues are obviously important, they are not
the focus of this paper. Our focus is on ensuring the privacy rights of the public at large in the face of increasingly
sophisticated surveillance technology.
17 Jed Rubenfeld, “The End of Privacy,” (2008) 61:1 Stanford Law Review 121.
The Fourth Amendment provides that: “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”
18 Freedom of Information and Protection of Privacy Act R.S.O. 1990, Chapter F.31 (FIPPA); Municipal Freedom of Information
and Protection of Privacy Act R.S.O. 1990, Chapter M.56 (MFIPPA).
19 Supra note 13.
20 Massimo Calabresi and Michael Crowley, “Homeland Insecurity; Do we need to sacrifice privacy to be safer?” Time
Magazine (13 May 2013) at 28.
21 Constitution Act, 1867, 30 & 31 Vict, c.3, (U.K.) reprinted in RSC 1985, App II, No 5., s. 91.
22 Cash Converters Canada Inc. v. Oshawa (City) 2007 ONCA 502 at paras 30-31, quoting the Williams Commission Report
(Public Government for Private People: The Report of the Commission on Freedom of Information and Protection of
Individual Privacy (1980) 3) at 504-505, the report that led to the enactment of Ontario’s public sector privacy legislation.
23 Criminal Code, R.S.C., 1985, c C-46.
24 At the same time, note that, for example, under s. 21(1)(c) of FIPPA and s. 14(1)(c) of MFIPPA, the privacy protective
rules regulating the handling of “personal information” by Ontario public sector institutions do not apply to a narrow

– 51 –

class of “personal information” that is maintained “for the express purpose of creating a record available to the general
public.” (The fact that an individual has disclosed the information to the public, for example, via the press, does not
render it public within the meaning of these provisions. See Investigative Report I94-011P quoted in MO-1366 [2000]
O.I.P.C. No. 203 at para 44 and I95-24M [1996] O.I.P.C. No. 80 at para 13. Further, note that our office has determined
that: “Other institutions cannot claim the benefit of the exclusion for the same personal information unless they, too,
maintain the information for the purpose of making it available to the general public. In our view, this interpretation
is not only reasonable, but also in keeping with one of the fundamental goals of the Act, namely ‘to protect the privacy
of individuals with respect to personal information about themselves held by institutions.’ … Information contained in
police daily arrest sheets (Order M-849), dockets listing daily matters being heard under the Police Services Act (Order
M-1053), a list of all doctors registered with the College of Physicians and Surgeons of Ontario (Order P-1635) and a list
of the names and addresses of all persons licensed to drive in the province of Ontario (Order P-1144) have all been found
to not satisfy the requirements of ss. 14(1)(c) and 21(1)(c).” [MO-1366 at para 45].
25 For example, s. 39(3) of FIPPA provides certain law enforcement-related exemptions from the general duty to provide all
affected individuals notice of indirect collections of their personal information.
26 Copeland and Adamson, [1972] 3 O.R. 248 (OHCJ).
27 R. v. Tse 2012 SCC 16 at para 17, quoting Justice La Forest in R. v. Duarte, [1990] 1 S.C.R. 30.
28 Ibid at para 16.
29 Supra note 1, at para 69 (quoting the majority in R. v. Wong, [1990] 3 S.C.R. 36) and para 81.
30 R. v. Wong, [1990] 3 S.C.R. 36. See also Supra note 23, s. 487.01, but note Supra note 7 at 30.
31 Supra note 27, at para 28.
32 Supra note 27, at para 85.
33 Supra note 27, at para 98.
34 Bill C-55, An Act to Amend the Criminal Code (Response to the Supreme Court of Canada Decision in R. v. Tse),1st Sess,
41st Parl, 2013.
35 Note that, in R. v. Tse (supra note 27) at para 57, the Supreme Court signalled that it had strong “reservations about the
wide range of people who, by virtue of the broad definition of ‘peace officer,’ can invoke the extraordinary measures
permitted under s. 184.4 [of the Criminal Code].”
The definition of “peace officer” includes “mayors and reeves, bailiffs engaged in the execution of civil process, guards and
any other officers or permanent employees of a prison, and so on.” Without ruling on the point, the Court stated that the
emergency warrantless wiretap powers “may be constitutionally vulnerable” for this additional reason (see paras 55-57).
In addition, at para 89 the Supreme Court had welcomed rather than required “added safeguards, such as the preparation
of reports for Parliament.” The Court did observe that, as a “matter of policy, a reporting regime that keeps Parliament
abreast of the situation on the ground would seem to make good sense.”
36 R. v. TELUS Communications Co. 2013 SCC 16 at para 58.
37 Ibid at paras 75 and 5.
38 Supra note 36 at para 33.
39 Supra note 15.

– 52 –

40 Supra note 15 at para 75.
41 Supra note 15 at paras 72-74.
42 Supra note 15 at para 71.
43 Supra note 15 at paras 74, 95-109.
44 See, for example, Lukas Feiler, “The Legality of the Data Retention Directive in Light of the Fundamental Rights to
Privacy and Data Protection” European Journal of Law and Technology, Vol 1, No 3 (2010). Online: <http://ejlt.org/
article/view/29/75> and EC, Commission Directive 2006/24/EC of 15 March 2006 on the retention of data generated
or processed in connection with the provision of publicly available electronic communications services or of public
communications networks and amending Directive 2002/58/EC.
45 As indicated in letters from various private sector entities supporting CISPA, U.S. companies are already engaged in
some critical infrastructure protection-related information-sharing. Online: <http://intelligence.house.gov/hr-3523letters-support>.
46 U.S. Presidential Exec Order, “Improving Critical Security Infrastructure” (12 February 2013).
47 Chris O’Brien, “Senate Indicates it Won’t Consider CISPA,” LA Times (29 April 2013) online: <http://www.latimes.com/
business/technology/la-fi-tn-senate-cispa-20130429,0,357666.story>.
48 Ann Cavoukian, “The Issue,” online: RealPrivacy < http://www.realprivacy.ca/issue>.
49 Malvin Gutterman, “A Formulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically
Enhanced Surveillance” (1988) 39 Syracuse Law Review at 647. See also United States v. White 401 U.S. 745. And see
the discussion of “Project Champion” in Pete Fussey and Jon Coaffee, “Urban spaces of surveillance,” The Routledge
Handbook of Surveillance Studies, edited by Kirstie Ball, David Lyon, Kevin Haggerty. Routledge: New York (2012) at
207-208.
50 Jason W. Patton, “Protecting privacy in public? Surveillance technologies and the values of public places,” Ethics and
Information Technology (2000) 2: 3 at 183; and Alan F. Westin, Privacy and Freedom (New York: Athenum, 1967) at 31.
51 R. v. Poncelet, [2008] SKQB 157 at para 27.
52 United States v. Jones 625 F. 3d 544 at 3.
53 Supra note 5 (“A Technology-Centered Approach to Quantitative Privacy”).
54 R. v. Kang-Brown, [2008] 1 S.C.R. 456 at paras 79 and 104.
55 As discussed in Supra note 52, in U.S. Supreme Court cases from the 1980’s, the use of a beeper was effected with the
consent of the original owner of the vehicle or container being tracked. See U. S. v. Knotts, 460 U.S. 276 [1983] and U. S.
v. Karo, 486 U.S. 705 [1984].
56 Office of the Information and Privacy Commissioner of British Colombia Investigation Report F12-04: Use of
Automated Licence Plate Recognition Technology by the Victoria Police Department (15 November 2012) online:
<http://www.oipc.bc.ca/orders/investigation_reports/InvestigationReportF12-04.pdf>.
57 Supra note 1 at para 14.
58 Brown v. Durham (Regional Municipality) Police Force, [1998] 116 O.A.C. 126 at paras 67, 77.
59 Supra note 18 (FIPPA) at s. 38(2). See also Supra note 18 (MFIPPA) at s. 28(2).

– 53 –

60 Supra note 18 (FIPPA) at s. 2(1). See also supra note 18 (MFIPPA) at s. 2(1).
61 IPC Investigation I94-048M: A Regional Police, [1994] O.I.P.C. No. 428 at 2-3.
62 R. v. Mellenthin, [1992] 3 S.C.R. 615 at 624.
63 Supra note 58 at para 38.
64 R. v. Ladouceur 2002 SKCA 73 at paras 43, 54.
65 Office of the Privacy Commissioner of Canada, 2011-2012 Annual Report to Parliament on the Privacy Act: The Privacy
Act 1982-2012 — Three Decades of Protecting Privacy in Canada (October 2012), at 19 online: <http://www.priv.gc.ca/
information/ar/201112/201112_pa_e.pdf>.
66 Supra note 56 at 3.
67 Supra note 56 at 6 and 28.
68 Supra note 13 at 2.
69 Justice Gérard La Forest, Opinion (5 April 2002) online: <http://www.priv.gc.ca/media/nr-c/opinion_020410_e.asp>.
70 R v. Silva, [1995] O.J. No. 3840 at para 46. See also R. v. Baker, [1998] B.C.J. No. 1854; but also see R. v. LeBeau, [1988]
O.J. No. 51 where the Ontario Court of Appeal determined the accused had no reasonable expectation of privacy in
the circumstances.
71 R. v. Rudiger 2011 BCSC 1397 at paras 91-92.
72 Ibid at paras 101, 93, 98.
73 Ibid note 71 at para 40.
74 Ibid note 71 at paras 113 and 117.
75 R. v. Hounsell, [1994] N.J. No. 319 and R. v. Bryntwick [2002] O.J. No. 3618.
76 Supra note 13.
77 Supra note 1.
78 Supra note 13 at 3-10. And see John Papazian, “The Lens of Law Enforcement: A Geospatial Statistical Program
Evaluation of Denver’s HALO Camera Surveillance System,” 2013 Sanford Journal of Public Policy 4 at 109, online:
<http://sites.duke.edu/sjpp/files/2013/04/Papazian-The-Lens-of-Law-Enforcement.pdf>; and Rajiv Shaha and Jeremy
Braithwaite, “Spread too thin: analyzing the effectiveness of the Chicago camera network on crime,” Police Practice and
Research: An International Journal (2012) online: <http://www.tandfonline.com/doi/abs/10.1080/15614263.2012.67003
1#.UaYP6kA4tBl>.
79 Supra note 13 at 26. And see Charles Farrier, “Civil Liberties and CCTV Camera Surveillance. Landmark Court Decision
in Australia,” Global Research (9 May 2013) online: <http://www.globalresearch.ca/civil-liberties-and-cctv-camerasurveillance-landmark-court-case-in-australia/5334423>.
80 The Guidelines are intended to assist organizations in determining whether the collection of personal information by
means of overt video surveillance is lawful and justifiable as a policy choice, and if so, how privacy-protective measures
may be built into the system. Before deciding whether to use overt video surveillance, the Guidelines recommend that
organizations consider the following:

– 54 –

• A video surveillance system should only be adopted after other measures to protect public safety or to deter, detect, or assist
in the investigation of criminal activity have been considered and rejected as unworkable. Video surveillance should only
be used where conventional means (e.g., foot patrols) for achieving the same law enforcement or public safety objectives
are substantially less effective than surveillance or are not feasible, and the benefits of surveillance substantially outweigh
the reduction of privacy inherent in collecting personal information using a video surveillance system.
• The use of video surveillance cameras should be justified on the basis of verifiable, specific reports of incidents of
crime or significant safety concerns.
• An assessment should be made of the effects that the proposed video surveillance system may have on personal
privacy and the ways in which any adverse effects may be mitigated.
• Consultations should be conducted with relevant stakeholders as to the necessity of the proposed video surveillance
program and its acceptability to the public.
• Organizations should ensure that the proposed design and operation of the video surveillance system minimizes
privacy intrusion to that which is absolutely necessary to achieve its required, lawful goals.
Once a decision has been made to deploy overt video surveillance, the Guidelines set out the manner in which video
surveillance cameras should be implemented in order to minimize their impact on privacy.
81 Supra note 1 at para 75.
82 Supra note 52 at 955-956.
83 Supra note 52 at 963-963.
84 Supra note 52 at 954.
85 Supra note 52 at 962, 964, per Alito J.; 956 per Sotomayor J.
86 Supra note 52 at 956.
87 Supra note 27 at para 98.
88 Calo, R. (2011), “The drone as privacy catalyst.” 64 Stan. L. Rev. 29 online: <http://www.stanfordlawreview.
org/online/drone-privacy-catalyst>.
89 At present, there are three main types of drones: micro and mini drones, tactical drones, and strategic drones. Micro
drones, weighing as little as 100 grams (about 3.5oz), fly at low altitudes (below 300 metres, or approximately 1,000
feet). Mini drones, which weigh up to 30 kilograms (approximately 66 pounds), fly at altitudes between 150 and 300
metres (approximately 500 and 1,000 feet). Tactical and strategic drones are considerably larger and heavier (from 150
to 1,500 kilograms and up to 15,000 kilograms, or from approximately 330 to 3,300 pounds and up to 33,070 pounds,
respectively) and fly at much greater altitudes (from 3,000 to 8,000 metres, or approximately 10,000 to 26,250 feet) and
up to 20,000 metres (approximately 66,000 feet), respectively, and for longer periods of time (35 to 40 hours or more).
Tactical and strategic drones are associated predominately with military applications.
90 See Brian Bennett and Joel Rubin, “Drones are taking to the skies in the U.S.,” LA Times (15 February 2013) online:
<http://articles.latimes.com/2013/feb/15/nation/la-na-domestic-drones-20130216>.
91 See Ben Wolfgang, “FAA chief says drones will force change at agency,” The Washington Times (7 August 2012) online:
<http://www.washingtontimes.com/news/2012/aug/7/faa-chief-says-drones-will-force-change-at-agency/>. And see
Matt Hickey, “Is Seattle Being Buzzed By Drone-Equipped Peeping Toms?” Forbes, 29 May 2013, online: <http://www.
forbes.com/sites/matthickey/2013/05/28/is-seattle-being-buzzed-by-drone-equipped-peeping-toms/>.

– 55 –

92 See “FAA Makes Progress with UAS Integration,” Federal Aviation Administration (page last modified 14 May 2012)
online: <http://www.faa.gov/news/updates/?newsId=68004>.
93 Supra note 91 and see “Unmanned Aircraft Systems (UAS) – Online Session on UAS Test Site Privacy Policy,” Federal
Aviation Administration online: <http://www.faa.gov/about/initiatives/uas/>.
94 See Alexandra Gibb, “Privacy concerns hover over RCMP drones in British Columbia,” TheThunderbird.Ca (29 March
2012) online: <http://thethunderbird.ca/2012/03/29/privacy-concerns-hover-over-rcmp-drones-in-british-columbia/>;
“Unmanned Air Vehicle (UAV),” Transport Canada online: <http://www.tc.gc.ca/eng/civilaviation/standards/generalrecavi-brochures-uav-2270.htm>.
95 See Allie Bohm, “Status of Domestic Drone Legislation in the State,” American Civil Liberties Union online: < http://www.
aclu.org/blog/technology-and-liberty/status-domestic-drone-legislation-states>.
96 Ibid.
97 The Preserving American Privacy Act was first introduced by Republican Reps. Poe and Gowdy in 2012 as H.R. 6199.
Like two other comparable drone bills from the last session of Congress (Sen. Rand Paul’s (R-Kentucky) S.3287, The
Preserving Freedom from Unwarranted Surveillance Act of 2012, and Rep. Ed Markey’s (D-Mass) H.R. 6676, The Drone
Aircraft Privacy and Transparency Act of 2012), H.R. 6199 died when the session concluded. All 3 bills set warrants as the
general rule for most law enforcement drone-based surveillance.
98 See progress of H.R. 637 at: <http://thomas.loc.gov/cgi-bin/query/z?c113:H.R.637.IH>. And see Senator Rand Paul’s
comparable bill, S. 1016, The Preserving Freedom from Unwarranted Surveillance Act of 2013, introduced before the
Senate on 22 May 2013, which aims to protect individual privacy against unwarranted governmental intrusion through
the use of drones by imposing a warrant requirement with exceptions for the patrol of national borders, imminent
danger to life or a high risk of a terrorist attack.
99 “Not just for modern warfare: RCMP to expand use of drone mini-helicopters,” Douglas Quan, Postmedia News,
13/01/27, <http://news.nationalpost.com/2013/01/27/not-just-for-modern-warfare-rcmp-to-expand-use-of-dronemini-helicopters/ …> “RCMP expands its drone fleet as watchdogs worry Canadians may face aerial snoops”, Steve
Mertl, Daily Brew, Jan. 28, 2013 <http://ca.news.yahoo.com/blogs/dailybrew/rcmp-expands-drone-fleet-watchdogsworry-canadians-may-211447954.html ...> “Police drones sparks debate over personal privacy,” Jennifer Quinn, Feb. 5,
2013,

<http://www.thestar.com/news/world/2013/02/05/privacy_vs_security_when_does_the_use_of_drones_cross_

the_line.print.html>.
100 R. v Kelly, [1995] N.B.J. No. 98 (C.A.) at 49-50.
101 R. v. Lauda 121 O.A.C. 365 AT 60-72, and see [1998] 2 S.C.R. 683. While Lauda is not an aerial surveillance case, in it,
the Ontario Court of Appeal held that there may be a reasonable expectation of privacy in an open field, a finding not
overturned by the Supreme Court of Canada.
102 Supra note 51 at paras 14-32.
103 R. v. Douglas 2000 BCPC 9 at paras 101-111.
104 In view of the Supreme Court of Canada’s decision in R. v. Boersma, [1994] 2 SCR 488, a case dealing with a physical,
on-the-ground search on Crown lands, it is not clear whether an individual would have a reasonable expectation of
privacy with respect to drone surveillance over such lands.
105 R. v. Patriquen, [1994] N.S.J. No. 573 (CA), [1995] 4 S.C.R. 42 (SCC) at para 1.

– 56 –

106 R. v. Kwiatkowski 2010 BCCA 124 at paras 40-41.
107 Supra note 100 at para 50.
108 Supra note 51 at para 24.
109 Supra note 7, at para 28.
110 Ibid at para 29.
111 Note that the collection of personal information by a drone operator in the course of commercial activity is likely to be
regulated under the Personal Information Protection and Electronic Documents Act (PIPEDA) S.C. 2000, c.5., as well as
comparable legislation in British Columbia and Alberta. While the collection of personal information for personal or
domestic purposes as well as for journalistic, artistic or literary purposes may not be covered by PIPEDA, in Ontario,
any egregious, drone facilitated violation of privacy may attract civil litigation under the new tort of intrusion upon
seclusion. See also Jones v. Tsige 2012 ONCA 32.
112 Comments of the then-UK Information Commissioner Richard Thomas, as reported in BBC News, “Britain is
‘surveillance society’” (2 November 2006) online: <http://news.bbc.co.uk/2/hi/uk_news/6108496.stm>.
113 Jones v. Tsige 2012 ONCA 32 at para 39.
114 Application under s.83.28 of the Criminal Code (Re) 2004 SCC 42 at paras 115-116.
115 Ibid at para 8.

– 57 –

Ann Cavoukian, Ph.D.
Information and Privacy Commissioner,
Ontario, Canada
2 Bloor Street East, Suite 1400
Toronto, Ontario
Canada M4W 1A8
Web site: www.ipc.on.ca
Privacy by Design: www.privacybydesign.ca
Telephone: 416-326-3333
Fax: 416-325-9195
June 2013