Video: Home surveillance cameras

In my legal practice, I exclusively advise businesses on matters related to privacy and technology law. But I am sometimes asked by individuals about the use of home surveillance cameras. Because of advances in technology and low cost, they’re everywhere. The rise of home delivery has led to porch pirates who steal packages, and people want to deter that or to try to catch porch pirates in the act.

If you keep an eye out walking down a suburban street, you’ll often see them. Doorbell cameras are very popular, but so are other cameras.

The purpose of this discussion is to review the laws that do and do not apply to individuals who use these devices on their own private property. At least in this discussion, I’m not going to talk about the laws as they may apply to companies that provide these services used by individuals.

Different rules

Many people are familiar with privacy regulations like the Personal Information Protection and Electronic Documents Act or the provincial Freedom of Information and Protection of Privacy Acts.

Businesses are regulated by commercial privacy laws, whether federal or provincial.

Government and police are regulated by public sector privacy laws.

But the personal and “domestic” collection of personal information is unregulated in Canada.

General privacy regulations do not apply

Commercial privacy regulations do not apply to private individuals collecting, using or disclosing personal information for their own personal purposes.

For example, the Personal Information Protection and Electronic Documents Act, known as PIPEDA, only applies to the collection, use and disclosure of personal information in the course of commercial activity.

And just to be more clear, paragraph 4(2)(b) of that Act excludes personal or domestic purposes:

It says This Part does not apply to …

(b) any individual in respect of personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose;

If you are collecting personal information – which includes video and images that include a person – only for personal or domestic purposes, that is excluded from the Act.

The Personal Information Acts of British Columbia and Alberta are very similar.

For example, paragraph 3(2)(a) has an exclusion that is very similar to PIPEDA’s.

“This Act does not apply to the following: (a) the collection, use or disclosure of personal information, if the collection, use or disclosure is for the personal or domestic purposes of the individual who is collecting, using or disclosing the personal information and for no other purpose;”

Other “Privacy” laws

Just because this activity is not captured by our general privacy laws, other laws may apply.

Our Criminal Code includes offences for voyeurism and the interception of private communications.

Voyeurism

The crime of voyeurism was added to the Criminal Code relatively recently.

It involves surreptitiously observing or recording a person where there is a reasonable expectation of privacy.

Paragraph (a) makes it an offence to observe or record in a place in which a person can reasonably be expected to be nude … or to be engaged in explicit sexual activity.

Paragraph (b) makes it an offence where the recording or observing is done for the purpose of observing or recording a person in such a state or engaged in such an activity.

Paragraph (c) covers a broader range of observation or recording, but where it is done for a sexual purpose.

People should be aware that the courts have held you can have a reasonable expectation of privacy in a relatively public place and that the expectation of privacy can vary according to the method of observation. For example, you may not have much of an expectation of privacy with regard to being observed by someone at eye level, but you may have a protected expectation of privacy from being observed or recorded up a person’s dress or from above to look down their top.

Don’t point a camera where someone has a reasonable expectation of privacy.

This would include pointing at a neighbour’s windows, fenced back yards, pool, hot tub, etc.

Interception of private communications

Audio recording is particularly hazardous in Canada.

Using a device to knowingly intercept a private communication can be a very serious offence in Canada.

If your camera can record audio, don’t put it where it might record a private communication or disable that feature. And be careful.

You may have a camera on your fence-post that is exclusively pointed at your property, but it may capture private conversations among your neighbours on the other side of the fence.

Consent is a defence to a charge under this section, but it’s unclear if signage can create adequate consent.

Other privacy laws

In addition to the criminal law, people should also be mindful of the laws where you can be sued.

This includes the law of nuisance, the law of trespass, and privacy claims under “intrusion upon seclusion” and some provincial privacy statutes.

Nuisance

Nuisance is a very old, and well established legal claim. It boils down to “unreasonable interference with the ordinary enjoyment of property.”

A lot of traditional, old nuisance claims relate to noises, bad smells, smoke and things like that, but we are starting to see cases where people claim that someone’s use of surveillance cameras is interfering with their enjoyment of their own property.

The case of Suzuki and Monroe from the British Columbia Supreme Court in 2009 is instructive.

In this case, the Suzukis sued the Monroes for having a loud air conditioner and for having a surveillance camera that included part of the Suzuki property. In finding in favour of the plaintiffs, the judge wrote:

“I have no doubt that a surveillance camera continuously observing the entrance areas to a neighbouring property, or any part thereof, in these circumstances, is an intolerable interference with the use and enjoyment of the neighbouring property…

No useful purpose of any kind is served by having the camera directed at any part of the Suzuki property.

I am forced to conclude that the Munroes installed the camera and refused to remove or redirect it at least in part in order to provoke and annoy the Suzukis.

Acts done with the intention of annoying a neighbour and actually causing annoyance will be a nuisance, although the same amount of annoyance would not be a nuisance if done in the ordinary and reasonable use of the property….”

It is important to note that the judge said the use of cameras was not really necessary for any legitimate purposes of the defendants. If it had been legit, it might not have been found to be a nuisance.

We’ll talk about another, similar BC case in a bit.

Trespassing

Trespassing is unlawful. It can be a criminal offence, a provincial offence or someting you can sue someone for.

Don’t enter a neigbhour’s property to install or locate a camera without their permission. Putting a camera physically on a property that is not yours without permission is also unlawful.

Intrusion upon seclusion

In addition to the more traditional torts that I just mentioned, we are seeing more pure privacy claims.

In most common law provinces, you can sue or be sued for “intrusion upon seclusion”.

It is, in summary “an intentional or reckless intrusion, without lawful justification, into the plaintiff's private affairs or concerns that would be highly offensive to a reasonable person.”

If you poke into someone’s private life in a way that would be highly offensive, harm and damages are presumed.

Statutory torts

Some provinces have what are called statutory torts of invasion of privacy.

Here is the gist of the British Columbia Privacy Act.

1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

This means that the plaintiff doesn’t have to prove they were actually harmed. That is presumed.

Note the violation has to be without a claim of right or legitimate justification.

It then goes on and says …

(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.

(3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.

Note it specifically refers to eavesdropping and surveillance in subsection (4), which reads:

(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

For the use of home surveillance cameras to protect your private property, paragraph 2(2)(b) is important:

2(2) An act or conduct is not a violation of privacy if any of the following applies:

(b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property; …

Let’s see how that plays out in practice.

This specifically came up in another British Columbia case called Minicucci and Liu, a 2021 decision from the British Columbia Supreme Court.

This was another dispute between neighbours.

For backyard privacy, the plaintiff planted eight 25-foot cedars and twenty 10-foot cedars along the property line. This is the property line between the parties’ homes. The plaintiffs had a pool in their backyard, and the defendants had one as well.

Sometime later, the defendants asked the plaintiffs to “top” the trees because they were interfering with the defendants’ view. The plaintiffs refused.

Sometime later, while the plaintiff was away from their home, the defendant topped numerous of the cedar trees.

The plaintiff installed cameras pointed at the trees, and the camera also could see into the defendant’s backyard.

So the plaintiff sued the defendants seeking damages and injunctive relief for trespass and damage to the cedar trees.

The defendants filed a counterclaim seeking damages from the plaintiff for nuisance and for invasion of privacy by the camera.

The defendant’s privacy claim was dismissed because the use and location of the cameras was justified. Capturing a portion of the defendant’s backyard was incidental and the camera had been installed because of the defendant’s trespass and topping their trees.

The court also noted that it would not have been possible to record the trees without incidentally including some of the backyard.

Other rules - Condo rules

In some cases, there may be other rules that affect whether or how someone can install surveillance cameras.

In a 2022 Alberta court case called Lupuliak and Condo Plan 82111689, the Court of Queen’s bench found against a condo owner because the installation of a doorbell camera on the person’s door violated the condo rules. A similar camera that had been installed on the person’s patio was found not to be an issue.

Other rules - Leases

If you’re a tenant, you would want to check your lease or check with your landlord before installing any device outside your leased space. This would also include your door.

Purely public places

Many cameras that people install to observe their front doors or driveways will also include coverage of public spaces like sidewalks and roads.

There’s a diminished expectation of privacy in a completely public space like a road or a sidewalk.

However, expectation of privacy is not binary but is more nuanced.

If it came up, the courts will likely do a balancing test: is your legitimate need to use the device proportionate to the intrusion for others?

What if police ask for your footage?

Since most people use home surveillance cameras to deter or detect criminal activity, it’s worth asking what to do if the police ask for your footage.

With the increasing adoption of the devices, police are more commonly doing a video or CCTV canvas as part of their investigations. This involves going around the area to see if there are any cameras that may have captured something that can further their investigation.

So if the police come knocking looking for footage from your camera, what should you do?

Unlike businesses that are subject to general privacy regulations, you can give them footage without a warrant or a court order. That doesn’t mean you have to. It’s entirely up to you, unless they have something called a production order, which requires you to provide it.

Personally, I would ask them what they’re investigating and I’d decide whether to hand it over on that basis.

And if you are dealing with the police to report a crime and your cameras captured anything relevant, you can feel free to hand it over.

Best practices

So at the end of the day, what are the best practices?

In short, don’t be an idiot.

Be a good neighbour and minimise any recording of anything that is not your own property.

Let people – residents and visitors – know what’s going on. Talk to your neighbours and put up signs. Your neighbour may actually appreciate that you have cameras.

Certainly, don’t point it at any place you’d expect people to be nude or doing “things”

Think about what you’re actually using the cameras for and adjust your settings accordingly. If you are concerned about prowlers at night or someone on your property when you’re not at home, some of these more advanced cameras can be set to only record at night or when you’re not at home.

Takeaways

Remember that though an individual in their private capacity is outside the usual privacy regulations, other laws and rules can still apply.

Respect your neighbours and their privacy interests