Recording video or taking pictures in public

What likely started out as a school prank has turned into a popular video series called Surveillance Camera Man

Video 1:

also Video 2 and Video 3. Although parts of this video series are obnoxious, it does raise the question of what we will accept for surveillance in our society. We typically accept that stores have CCTV cameras recording us, and with the increase in camera surveillance by law enforcement across North America, there’s not much time for us to have a serious debate on the issue to determine what we deem as acceptable. For example, in the case of law enforcement, we’re effectively paying for surveillance gear to spy on ourselves.

If we’re not explicitly consenting to video or pictures taken of us, what reasonable expectation of privacy does one have regarding the data? Can store owners sell their video footage to your employer or insurance company?

There also seems to be some confusion about one’s rights to takes photographs or video in public in Canada. Most of the details were highlighted 6 years ago by Chireru on thephoneforum.com. I’ve corrected some spelling and grammar:

You are guaranteed the right to take photographs
If you are Canadian, you should already know your rights:

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

- 2.b) of the Canadian Charter of Rights and Freedoms
This guarantees your right to express yourself through photography, and the freedom to publish your photos. So, unless you are relieved of your rights (by being arrested, or notwithstanding clause), the Charter guarantees your right to take photographs of anything. That’s right, you can take photos of anything, and under regular circumstances, it is not against the law.

However, the charter only dictates the government’s role (ie. the RCMP can’t stop you from taking photos, just because they feel like it). The charter doesn’t relieve you of breaking other laws, nor common law (private citizen vs private citizen).

So, although you can take photos of anything, you must be sure not to break any laws, statutes, regulations or bylaws by either the act of taking the photographs, or possession of the photographs. The following are some laws, statutes and regulations that I’ve found:

Criminal Activities
I’m assuming that you have a least a little grey matter. If not, do yourself a favour and read the Criminal Code of Canada. Don’t do things like Breaking & Entering, Fraud or impersonation, mischief, cruelty to animals, etc.

Security of Information Act
This act is to protect Canada. Basically, do not do anything, or possess any photos that could be considered national secrets, interfere with a large number of Canadian’s lives, impair or threaten the Canadian Forces, national security or intelligence.

Avoid taking a photograph of any of the following, specifically in relation to national secrets, unless you have permission (preferably written) from a ranking official:

  • Arsenals
  • Armed forces establishments or stations
  • Factories
  • Dockyards
  • Mines
  • Minefields
  • Camps
  • Ships
  • Aircraft
  • Telegraph, Telephone, Wireless or signal stations or offices
  • Places used for the purpose of building, repairing, making or storing
    any munitions of war or any sketches, plans, models or documents
    relating thereto, or for the purpose of getting any metals, oil or
    minerals of use in time of war
  • Any non-government military contributor
  • Any place that is, on the ground that information with respect thereto
    or damage thereto would be useful to a foreign power

Now, this is not to say you can’t take a photo of the things listed above; consider an Air Show, or parade, for example. However, when the RCMP approaches you after you take a photo of a nondescript building, expect to be hassled about this act. Note, however, that this is treason-level laws, and for anyone to be prosecuted for this Attorney General’s direct consent is required.

Realistically, the crown will have to prove that you possessed the photo, with intent to (or proof that you did) communicate it to foreign country or fail to comply with all directions in the disposal of the photo at the direction of a lawful authority. So, if the RCMP asks you to delete a photo with regards to this act, do it. (but for everyone else, ie: a screaming parent, you are not required to).

Privacy Act
Does not apply between two private citizens. This does apply between a business and a private citizen, which may apply to commercial photography.

“Reasonable Expectation of Privacy”
According to the Canadian Charter of Rights and Freedoms, every Canadian is guaranteed a reasonable expectation of privacy. Unfortunately, this charter, according to section 32.1, only applies between the government and a private citizen, not between two private citizens.

This unfortunately is the most abused explanation of privacy law in Canada.

The Personal Information Protection and Electronic Documents Act
This only applies to the activities of the federal government.

Trespassing
This Ontario regulation disallows trespassing. You can not take photos on someone else’s property unless the owner has permitted you to (if challenged, you must prove they permitted you in court). If you are permitted on the property, you must leave immediately if asked by the owner. You must also obey signs (no entrance, no trespassing, etc). Without signage, the following should be assumed no-trespass:

  • garden
  • field
  • any other land under cultivation
  • lawn
  • orchard
  • vineyard
  • anywhere with trees planted that average less than 2 meters in height
  • anywhere that is built in a way that it implies intention of keeping people off the premises, or keeping animals on the premises (ie: fences)

With that in mind, you can enter any property that provides notice that certain activities are permitted, or implies permission to approach a door (for approaching the door only, of course).

If you are taking photographs in a mall, or some other privately-owned-but-open-to-the-public property, and their rent-a-cops get uppity, they can essentially make up any policy or rules they want. There are no law with regards to this, you don’t have to do what they say. However, they can simply ask you to leave… if you don’t, you are trespassing on their property. They can also ban you from the property, in which case, if you come back, your trespassing.

Quebec Human Rights Code
In Quebec, the Quebec Human Rights Code (PDF) chapter I, item 5 grants all humans the right to their private life. I’m fairly sure this applies between two private citizens.

TTC
Toronto has a TTC Bylaw that restricts photography for *commercial* use, without authorization. This mentions nothing of photography for private purposes. However, before throwing this technicality back at a TTC officer, do remember that some TTC security staff are special constables, who are actual police officers, and that a metro transit system can be considered as one of the items under the Security of Information Act above, and they can always ask you to leave (trespassing). The TTC is allowed to create it’s own bylaws because of item #3 on this Ontario regulation.

Common Law
Canadian common law is case law… it’s very difficult to draw up a list of things that are against the law, it’s more just knowing about cases… if sometime in the past, a parent sued a photographer for taking a photo of their kid without consent  and the guy was found guilty, no law is actually created, but if the same thing happens again, the judge will look back to that case and rule the same for consistency.

As long as there is damage done that you want recovered, you can sue for it. What that damage is, I don’t know… taking your soul, public humiliation, loss of privacy, etc, but when it’s you behind the camera, you can bet that your subject will figure it out.

So far I haven’t been able to find anything that gives me the right or denies me from going to the park and taking a photo of someone. Similarly, I haven’t been able to find any common law cases in which a photographer is sued for taking photos in public. (Besides the recent one in Quebec, which falls under slightly different laws than the rest of Canada).

One friend of mine mentioned that he was taught in highschool to not take photos of children in public.. The reasoning goes if it’s a single parent and child that have moved from an abusive spouse and the fear is that if the photo some how comes into their possession it could be possible to identify where they’ve moved to. I haven’t found any mention of this anywhere though.

I’m also looking for a regulation or statute that says that everyone is welcome onto public-owned property (like parks, city hall, etc.).  Specifically I want to know if a private citizen can be charged with trespassing in a public park.

If you have any other examples or updates, let me know and I’ll add them to this article.

 

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