"The right to be let alone..."

By Beryl Wajsman on September 2, 2015

Elected officials need not all be lawyers. In fact, sometimes it is better that they are not. But all those who present themselves for election as lawmakers - at any level of government - must be familiar with the basic concepts of justice that are the foundation of our free society. If they are not, they do damage to the delicate fabric of our most basic civil liberties.

The decision of the city of Beaconsfield to install cameras on its garbage trucks is an example of such damage. The position of the city is that the cameras are necessary to determine if any dangerous or toxic materials are in garbage bins. If any are found, notices will be sent to residents and if more incidents occur fines will be levied. The data is to be kept for an indeterminate amount of time. To the Mayor of Beaconsfield and its council, this is simply a matter of garbage. To many residents, legal experts and this writer it is a matter of infringing on what Justice Louis Brandeis called "the most comprehensive of rights." The right to our privacy. The right to be let alone.

Other municipalities similar, in demography and wealth, to Beaconsfield have stated clearly that trashcams will not be installed on their garbage trucks for this very reason. They consider it an intrusion in their citizens personal lives. Cote St. Luc, Hampstead and Montreal West have said no to video surveillance of their citizens.

When I spoke to the Director-General of Beaconsfield and asked whether lawyers had been consulted on the privacy aspects of this decision, I was told they had not been. Councillor Karen Messier defended Beaconsfield's decision by referring to a Supreme Court judgment in R. v Patrick that allowed police to take a suspected drug dealer's garbage when it was on the curb. And Mayor Bourelle told our Kevin Woodhouse when questioned on the privacy concerns that he should, "..ask your editor Beryl Wajsman since he seems to be such an expert." So Mayor Bourelle and Councillor Messier, here is Beryl Wajsman's answer.

Trashcams have little to do with garbage and everything to do with video surveillance and data gathering and storage by government authority. The cameras can be pointed at residents homes and the images captured can be used by many in muncipal government, aside from the information gathered in the garbage bins. The Patrick decision has no bearing on the public tort Beaconsfield is about to commit. 

In speaking with one of Canada's leading constitutional attorneys, Julius Grey, he was unequivocal in stating that the Patrick decision cannot possibly be used to justify the breach of privacy law and regulation that Beaconsfield is about to commit. He explained that the Patrick decision was one of criminal law - not civil administration. The case sought to test the limits of sec.8 of the Canadian Charter of Rights which protects us from unreasonable "search and seizure." The judgment simply stated that it was not "unreasonable" - in this particular case - for a police officer to have picked up Mr. Patrick's curbside garbage bag because there was reasonable cause to believe that Mr. Patrick was dealing in drugs. He had a history of it, and a warranted search had earlier turned up evidence of same. Me. Grey was adamant in stating that, "Nothing in Patrick opened the door for unlimited and generalized electronic surveillance of, and data collection and storage on, any individual's life, property or habits by state authority without specific purpose and sanctioned by judicial authority. The state does mot have any unrestricted right to profile your life regardless of the source of its information." And, he added, this is codified in law and regulation.

As Canadians and as Quebecers we are protected by two sets of Acts at the Federal level and two at each Provincial level. One act protects our privacy rights from the state. The other from corporations and organizations operating in the private sector.

Me. Eloïse Gratton, who has written the seminal text on privacy law entitled "Understand Personal Information: Managing Privacy Risks" (Lexis/Nexis) , points out in her article "Privacy Law in Quebec," that our privacy and data protection are governed by the following legal framework:  private sector organizations have to comply with the Quebec Act Respecting the Protection of Personal Information in the Private Sector, (the "Privacy Act") which has been in effect since 1993 and public sector entities (including Municipalities) have to comply with An Act Respecting Access to Documents held by Public Bodies and the Protection of Personal Privacy. The latter act requires individual consent or court sanction for surveillance. And at that, the surveillance must be for a specific purpose and a limited time.

Moreover, she points out, Quebec privacy rights are governed by the Civil Code of Quebec ("C.C.Q"), specifically articles 3, and 35 to 41 inclusively. 

Article 35, she writes, "..states a general principle under which every person has a right to the respect of his reputation and privacy, and that no one  may invade the privacy of a person without warrant or the consent of such person.  The aspect of consent  is common to all such Acts in all provinces that deal with civil matters and civil administration. Consent has two major characteristics:  the purpose for which consent is requested must be reasonable and the request for consent must make it clear that the information collected be for a limited purpose." The limitation as to purpose  naturally infers a limitation as to how long information may be held since a "purpose" does not go on forever. 

Arts. 36. 4 and 36.6 of the Civil Code of Quebec have special relevance on the question of video surveillance. They read, "The following may be considered invasions of the privacy of a person:    ( 4 )  keeping his private life under observation by any means; ( 6 )   using his correspondence, manuscripts or other personal documents. I would think that 36(4) would also put into serious question Beaconsfield's intention to use microchips in garbage bins as well. And as for 36(6), imagine how easy it would be for the cameras to capture image of personal documents. We have seen enough of identify theft and hacking in the digital world.

Further privacy protections exist in the Quebec Charter of Human Rights and Freedoms (Charte des droits et libertés de la personne), a statutory bill of rights, which states, at article 5, that "every person has a right to respect for his private life." Under article 7, "la demeure est inviolable" from state authority unless a warrant is obtained.  Privacy in non-criminal matters is taken so seriously in Quebec  that under the terms of article 46 of the Charter, which recognizes the right to "fair and reasonable working conditions," judges have ruled that an employer is prohibited from consistently monitoring his employees by means of video surveillance. If an employer has no right to monitor workers at his own premises, what right does a municipality have to monitor residents at their own property lines?

Finally, let me review the federal protections against state video surveillance. The federal Office of the Privacy Commissioner under Jennifer Stoddart issued exhaustive guidelines governing the conditions under which this type of oversight may be utilized. Let me cite just a few: 1. Video surveillance should only be deployed to address a real, pressing and substantial problem; 2.   Video surveillance should be viewed as an exceptional step, only to be taken in the absence of a less privacy-invasive alternative;  5. The video surveillance must be consistent with all applicable laws and  in accordance particularly with overarching laws such as the Canadian Charter of Rights and Freedoms and Quebec's Charter of Human Rights and Freedoms; and perhaps most important is this eighth guideline...8.    The information collected through video surveillance should be minimal; its use should be restricted, its disclosure controlled, its retention limited,and its destruction assured. There are some dozen more.

 

All the above is information that I fervently hope appeals to the minds of Mayor Bourelle and his council. Let me close with an appeal to their hearts citing in full the words of Justice Brandeis, 

"All civilized systems of law confer upon man, as against their Governments, the right to be let alone. The most comprehensive of rights and the most valued by civilized men. The progress of science in furnishing the Government with means of espionage is not likely to stop . The next step must be taken for the protection of the person, and for securing to the individual the right to be let alone."


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