SURVEILLANCE CAMERAS: What are the limits to the right to privacy?

Article locked Published on by Me Jean-Olivier Reed

Topic(s): Legal

Note aux lecteurs : Ces articles sont des résumés de décisions rendues dans les affaires citées. Veuillez noter qu'il ne s'agit pas d'une revue de la jurisprudence et que d'autres décisions peuvent être rendues par la suite ou être différentes et changer l'état du droit. C'est également le cas si les faits ne sont pas les mêmes que ceux présentés dans l'affaire mentionnée.

SURVEILLANCE CAMERAS: What are the limits to the right to privacy?

Owners of multi-unit buildings who deal with criminal acts, erratic, disturbing or violent behaviour, vandalism or theft in their buildings may decide to have surveillance cameras installed as a security measure. The following question should be asked then: what are the criteria and guidelines that make such means acceptable to the residents' right to privacy? The jurisprudence of the Régie du logement sets out some criteria that require your attention.

Indeed, in the decision Filliatreault v. Beaudoin, of May 2017, Administrative Judge Me Sophie Alain explains from paragraph 27 onward of her decision that "The Court reminds us that before using video surveillance a landlord must have serious reasons. Indeed, the capture of images of people by a camera in the corridor of the building calls into question the right to respect for the private life of the people who circulate there, a right protected in particular by section 5 of the Charter of Human Rights and Freedoms which reads as follows:
5. Everyone has the right to respect for his private life.
28 This right to respect for private life is also protected by Sections 3 and 35 of the C.c.Q., while Section 36 of the C.c.Q. considers an invasion of privacy the monitoring of privacy by any means whatsoever:
3. Everyone is entitled to certain personal rights, such as the right to life, to the inviolability and integrity of his person, to respect for his name, reputation and private life.
These rights are non-transferable.

35. Everyone has the right to respect for his reputation and his private life.

No infringement may be made to a person's private life without the consent of the person or the law.

36. In particular, the following acts may be considered to be an invasion of a person's private life:

1 ° ...
2 ° ...
3 ° To capture or use his image or voice when he is in private places;
4 ° To supervise his private life by any means whatsoever;
5 ° To use his name, image, resemblance or voice for any purpose other than the legitimate information of the public;
6 ° ...
29 From this follows therefore that the right to capture images is limited by the imperatives of protecting the privacy of individuals. Capturing video images of an identifiable individual in a public place is similar to obtaining personal information.
30 Although it is lawful to collect such information, this information-gathering must comply with the Privacy Act in the private sector7 which provides in particular that it must be proportionate to the reasons for which it is carried out.
31 Moreover, it is necessary to inform persons on guarded premises of the existence of surveillance. Therefore, persons travelling on the premises should be warned that a CCTV system is in use and that the information obtained from this system can be stored or shared with others.
32 As the Superior Court points out in Boivin v. Syndicat des copropriétaires Terrasse Le jardin Durocher inc.8, according to Section 9.1 of the Charter9:
Rights and freedoms must be exercised in relation to one another, while respecting democratic values, public order and general well-being. We must therefore reconcile all rights and values and strike a balance and compromise in the general interest in the specific context of the case before us.
33 In a preliminary way, does a corridor of a boarding house require a greater expectation of privacy than in a residential building? The Court does not think so. Although its use is restricted to residents of the premises, the corridor is not a private place; it is a common area that requires the respect of all occupants, such as dressing appropriately.
34 Has the tenant demonstrated that a fundamental right has been infringed? If so, the landlord must demonstrate that the infringement is lawful given the context of democratic values, public order and general well-being
35 The tenant opposes the cameras simply because he suspects the landlord is spying on him. However, he did not demonstrate that the direction of the cameras was particularly aimed at the door of his room or the bathroom. He has not demonstrated that the presence of cameras affects his dignity.
36 Also, the landlord had reasonable grounds to install cameras as a result of him having been assaulted and because of theft in the rooms. And it appears that the occurrence of misdeeds did not happen anymore afterwards.
37 This situation is different from that of Lessard v. Doré10, where the landlord had installed cameras in the room without the knowledge of the tenant of the cameras in the bathroom to spy on him. Administrative Judge Jacques Cloutier notes that the landlord then knowingly violated the dignity and privacy of the tenant and his daughter in an unlawful and intentional manner.
38 In the present case, the Court considers that the infringement is minimal and justified in the context of the protection of a place shared by all the residents of the boarding house. The Court dismisses the request for an order requested by the tenant.

To summarize, the reasonableness criteria for installing surveillance cameras in your building may include the following:

The owner must have a serious reason to install them, usually following an event that justifies it;

Residents should be informed of the presence of these cameras;

They must be installed in a common area;

They will be pointed towards general directions, common areas and not towards a door or a specific place.

The camera filming in the common corridor of the building, for instance, should not be pointed directly or even indirectly to a tenant's door, but should be pointed towards the main entrance door towards the street, a public place.

In all cases, the installation of the surveillance cameras must be done in concert between the installer and the owner and respecting the privacy of the tenants.

If the tenants install surveillance cameras themselves, you can ask to withdraw them because they must, in addition to respecting the criteria above, obtain your consent.

In any case, clear communication with tenants can often limit conflicts.

2017 QCRDL 16673 198948
QCRDL 32463 341529

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