[Recorded by Electronic Apparatus]

Tuesday, December 3, 1996

.1108

[English]

The Chair: I see a quorum. The House of Commons Standing Committee on Human Rights and the Status of Persons with Disabilities shall come to order.

I'm Sheila Finestone, chair of the committee.

[Translation]

Mr. Bernier (Mégantic - Compton - Stanstead): Good morning. My name is Maurice Bernier and I am the member for Mégantic - Compton - Stanstead. I represent the official opposition.

The Chair: And on the government side...

[English]

Mr. Godfrey (Don Valley West): I'm John Godfrey, from Don Valley West in Toronto.

Mr. Russell MacLellan (Cape Breton - The Sydneys): I'm Russell MacLellan from Cape Breton - The Sydneys, in Nova Scotia.

[Translation]

The Chair: Thank you.

[English]

Thank you very much. I believe Mr. Allmand should be here shortly, and one of our other members is out of town.

Ladies and gentlemen, I'm really very pleased to welcome you to this fourth and ongoing...

An hon. member: What about Andy?

The Chair: Oh, is Andy here yet? Mr. Scott, would you be good enough to just introduce yourself, please?

Mr. Scott (Fredericton - York - Sunbury): I'm Andy Scott, member for Fredericton - York - Sunbury. I'm also vice-chair of the committee.

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The Chair: Thank you very much.

We have some of our support staff with us. Susan Alter is from the research branch of the Library of Parliament. Nancy Holmes is from the law and government division. William Young, of the political and social affairs division, is also here. And finally, we have Wayne Cole, the clerk of the committee.

This committee has completed its study on the status of the disabled. The information that has been gathered has been placed before the cabinet and is presently being dealt with, we hope in the best interests of the disabled in our society.

We have now started a second study in this committee. For those of you who are joining us, by the way, these are televised exchanges. This is about the fifth in a series that has been looking at the right of privacy as a fundamental human right, as so declared in the Universal Declaration of Human Rights, which will be celebrating its fiftieth anniversary next year. December 10 is Human Rights Day, so this is a very appropriate moment at which to receive you. As well, the Covenants on Civil and Political Rights also cover the issue of privacy rights as a basic human right. The Canadian code does not so state, but it has broad language that is perceived to cover a degree of privacy.

Privacy does not really stem from any one source. As I've just pointed out, it's drawn from international law, from constitutional law, and from federal and provincial legislation. The province of Quebec has been in the lead with respect to privacy legislation and as a matter of fact had the first charter of rights in Canada. And privacy also stems from judge-made law, professional codes, ethics and guidelines that different organizations like those the Canadian Bankers Association and the Canadian Manufacturers' Association have in place. The result is often referred to in this mix, in this amalgam, as a patchwork of privacy protection in this country.

We have some serious concerns with the changing technologies in our new and evolving society. They do have implications for our human rights and our privacy rights. I think that if we look at the right to privacy in a high-tech world, we've all read a great deal about the implications of these vast, invasive new forms of technology. You look at them and you ask yourself who knows what about you, who is watching you, and how much they really have to know. I think the implications for our personal privacy and that balance of personal privacy vis-à-vis the public's right to know and the right to protect are things you will help us with this morning. Just what is a fair balance, where's the clash, and what can we do about it?

Essentially, when you know that with a blood test someone can now know about your DNA and what makes you as a human persona, you start to worry about some of these things. You know that some of the technologies can go right through brick walls. You can be overheard from quite a far distance. You can be seen with infrared light at night. So you again wonder just to what extent your personal life should be invaded.

Last week our privacy commissioner said that the story of Charles and Diana certainly illustrates how invasive this right to privacy has become, how it unfolds and impacts on people's lives. We're therefore looking at its balance.

I think Supreme Court Justice LaForest made a very profound observation. He said that if we are of the view that the limits of our personal private life - our personal privacy - define in large measure the limits of our freedom, then we should not be compelled to share our confidences with others, for this is the very hallmark of a free society.

And one of our witnesses, Dr. David Flaherty of British Columbia, wrote a book called Protecting Privacy in Surveillance Societies. He said ``Our technocratic societies can accomplish what Orwellian thought could only fantasize about in the aftermath of the Second World War.''

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Essentially what this committee feels compelled to examine is just how far privacy rights go. In your view, is it a fundamental human right, given that there is physical surveillance through video surveillance, personal information through ID cards and other mechanisms, biotechnology surveillance through genetic testing, DNA, insurance companies, etc.?

The issue for us is what kind of ethical framework or code of practice or set of laws with some teeth is needed by our society to protect the individual. How much should government and big business invade our space? What is the prior consent with the right to know? Those are just some of the issues. It is in a sense the monitoring of human rights.

I'll just say welcome to Deborah Grey. Excuse me for interrupting, but would you just introduce yourself please, Deborah?

Miss Grey (Beaver River): My name is Deborah Grey; I'm the member of Parliament for Beaver River in northern Alberta.

The Chair: She's also the House leader for the Reform Party.

Miss Grey: No, she's not, actually.

The Chair: Oh, she's the deputy. I'm sorry; I've done this to you twice, Deborah.

Miss Grey: Ray Speaker is the House leader of my party. I'm the caucus chairman and the deputy parliamentary leader. If everybody has their own title, that's what I am.

The Chair: Thank you very much, Deborah.

Sarkis.

Mr. Assadourian (Don Valley North): I am Sarkis Assadourian, member of Parliament for Don Valley North, Liberal, critic of everything.

Miss Grey: I used to do that too.

Mr. Assadourian: Including the Reform, by the way.

The Chair: The monitoring of human activity is nothing new to our society. You know that. You are the gentlemen involved in great part with that part of our lives.

However, with the advent of this new and rapidly advancing technology, modern surveillance seems to have taken on a whole new character. It's no longer cops and robbers. It's way beyond that in our society. It's expanded beyond the purview of national security and law enforcement. It now includes employers, commercial interests, and service providers. It's no longer labour-intensive and cumbersome and costly. At least, we believe it no longer is.

It would seem that physical surveillance can now monitor our physical condition, function in the dark, and operate from great distances. Moreover, information obtained through this type of monitoring can easily be aggregated with other sources of information and manipulated with ease.

There are numerous modes of physical surveillance, but none to date has surpassed the prevalence of closed circuit television systems. Technical developments have both increased the capacity and lowered the cost of video cameras, making them an almost regular feature in many city streets, heavily travelled highways, retail stores, banks, hospitals, and private homes. These cameras are state of the art. They can move in any direction, zoom in on minute objects as far as 300 metres away, and bring up images into daylight even in pitch blackness.

We've been told about the United Kingdom, which has centrally controlled, comprehensive, city-wide CCTV systems tracking individuals in dozens of cities. In the United States, we've been told the police in Baltimore have wired a 16-block area of downtown with enough video cameras to allow them to watch the activity on every street, sidewalk, and alley 24 hours a day. In fact, this gives me an uncomfortable feeling altogether.

In Canada the closed circuit surveillance camera business is estimated to be somewhere between $65 to $90 million annually and growing. Not only are video cameras being used openly in public spaces by some municipalities and businesses, but private individuals, retailers, and employers can put and have put concealed cameras in such places as retail washrooms, utility transformers, air vents, etc. We'd like to know what the personal justification is of this public surveillance, in your view. Is this something we really have to have in our society?

There has been general agreement, I think among everybody we've heard from and from the members of this table, that a certain degree of physical surveillance is necessary in the interest of peace and security and public safety. The question we are going to be asking you is how far are we prepared to go to protect social interests? How much should government and the private sector interfere in our lives? Where is the end zone?

To try to help us answer some of these questions, I'm going to call first on Mr. Skurka.

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I wonder if you would all introduce yourselves first, and then Mr. Skurka can start.

Mr. Steven Skurka (Individual Presentation): My name is Steven Skurka. I'm a lawyer practising in Ontario. I was called to the bar in 1983. I'm a certified specialist in criminal litigation and was formerly a prosecutor.

I practise exclusively in the area of criminal defence work and have been involved in a number of cases where there have been charter issues, specifically some of the issues I'll be relating in the topic I deal with today.

Mr. Godfrey: Excuse me. Whereabouts in Ontario do you practise?

Mr. Skurka: Toronto.

Mr. Godfrey: All right.

The Chair: Mr. Swan.

Mr. Kenneth Swan (Vice-President, Canadian Civil Liberties Association): My name is Kenneth Swan. I'm a lawyer and labour arbitrator in Toronto and I'm vice-president of the Canadian Civil Liberties Association.

The association is an organization of several thousand members across the country, with a number of affiliated chapters across the country and a number of groups, such as churches, synagogues and trade unions, that are affiliated organizations representing many thousands of other people.

The association has long taken an interest in matters of surveillance and intrusive investigative techniques, at least from the time of the McDonald commission until the present time. As one of the volunteer members of its board, this is an area I've concerned myself with particularly.

The Chair: Thank you very much.

Mr. Bobiasz.

Mr. Fred Bobiasz (Counsel, Criminal Law Policy Section, Department of Justice): I'm Fred Bobiasz. I'm with the criminal law policy section of the Department of Justice. I've been there for the last six or seven years. I'm involved in developing legislative changes and looking at various other policies relating to the Criminal Code.

I suppose the area of my recent activities that brings me here today is a piece of legislation that was considered by Parliament three years ago, Bill C-109. To a certain extent it responded to the cases Justice LaForest was involved with in the Supreme Court of Canada and made a variety of amendments, principally to the Criminal Code, in the area of consent intercept, tracking devices and access under legal authority to telephone records and information, as well as amendments to part XVI of the Criminal Code that among other things provided for a way for police to obtain authorizations in respect of matters involving video surveillance.

The Chair: Is this the Open and Shut report that was done by Justice and the Solicitor General?

Mr. Bobiasz: No, no. This was a bill that was inspired on two bases. One was simply the decisions of the Supreme Court of Canada in Duarte, Wise, and Wong involving consent to intercept, video surveillance and tracking devices. As well, there was another dimension to it that had to do with concerns about the interception of cellular communications.

The Chair: Thank you. I'm sure the committee is going to have a number of questions for you.

Mr. Chenoweth, please.

Mr. Richard Chenoweth (Corporate Vice-President, Intercon Security): My name is Richard Chenoweth. I'm the corporate vice-president of Intercon Security. We are a private security firm largely operating in the corporate sector. To our knowledge we are the largest Canadian-owned security firm.

Intercon practises all major forms of security. We have security officers and we have our own systems, as well as carrying a variety of other technologies, including the various types of video technologies that you likely were referring to, Madam Chair. We also provide a number of protective services to corporations and individuals.

So I guess we're the people who are carrying through, on behalf of the private sector, some of the actions to which you were referring this morning.

The Chair: I guess you're one of the companies, and insurance and banks are the others we're looking forward to next week.

Mr. Bell.

Mr. Alan Bell (Manager, Corporate Resource Group, Intercon Security): My name is Alan Bell. I also work for Intercon Security. I am the manager of the corporate resource group, and my function is to provide resources to corporations in terms of crisis management consulting and corporate security issues. A technical countermeasures department reports to me, and I primarily deal with the detection and investigation of corporate espionage.

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The Chair: Thank you very much.

Mr. Skurka, would you like to start, please?

Mr. Assadourian: Madam Chair, may I ask a question before we start with the witnesses?

On the list here I see we have groups from industry, consumer groups, the government and also the chiefs of police. The chiefs of police are not here today; it says ``To be confirmed''. Are we going to have them sometime in the near future?

The Chair: The chief of police will be here shortly. He's detained, doing a little surveillance for us.

Mr. Assadourian: Oh, okay. Good.

Mr. Godfrey: He's actually under the table, if you look.

Some hon. members: Oh, oh!

The Chair: Go ahead, please.

Mr. Skurka: I hope, in the time allotted to me, to give you my own views as a criminal defence lawyer as to where the balance you spoke of this morning should be struck.

When it comes to the interception of private communications - and I stress ``communications - through the use of technology, Parliament has deemed it appropriate to set up a comprehensive legislative scheme contained in part VI of the Criminal Code, entitled ``Invasion of Privacy''. For example, it's an indictable offence punishable by a sentence of up to five years for anyone, be it an agent of the state or otherwise, to wilfully intercept private communications through the use of a technical device, unless specific exceptions such as a prior judicial authorization or consent of one of the parties is met, but those exceptions are very limited.

By stark contrast, the interception of private acts - emphasizing ``acts'' - through video technology is monitored and controlled by only one section, in my view, of the Criminal Code, that being section 487.01, which essentially requires the police to secure a warrant with prior judicial approval to utilize video surveillance technology in their fight against crime.

The section - and this has already been alluded to - was very recently introduced and follows Mr. Justice LaForest's majority decision in the Wong case. It was held there that surreptitious video surveillance by law enforcement agencies can constitute a search and seizure within the meaning of section 8 of the Charter of Rights and is therefore deserving of charter protection.

The majority decision - and I'll refer to it only briefly - addressed what it termed the unthinkable or inconceivable notion that the state should have unrestricted discretion to target whomever it desired for surreptitious video surveillance. Surely, if one thing is clear, we can all agree, I would assume, that's something that should be condemned in a free and democratic society.

The majority went on to note that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy. It is quite true that one can point to this warrant provision, which is now firmly in place and is the law, and suggest we have addressed this problem of the potential for the annihilation of privacy by building in this warrant requirement with respect to videotaping surreptitious acts. It's my view that we're far from achieving that with the present legislation.

The failure to comply with the warrant requirements of section 487.01 may lead to the warrant being declared unlawful, or it may lead to the fruits of a search and potentially any derivative evidence from that search being excluded pursuant to a charter remedy. That's the starting point and the finishing point of this warrant provision in the Criminal Code.

However, no criminal sanction flows from such conduct. In the present legislation there's nothing to deter law enforcement from improperly using video surveillance of private acts as an investigative tool to gather information or to target suspects. They're able to do that, but they aren't able to use it, of course, in a criminal trial. But there is a dichotomy between the two.

This potential for invasion of privacy extends well beyond simply agents of the state. I heard of a case that was broadcast on national radio in New Brunswick where an adult stepdaughter having a bath was secretly videotaped by her stepfather. The matter came to light and the prosecutor was interviewed on this station. He described how he felt captive to what the law presently is and felt he was unable to prosecute.

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The Washington Post reported recently that in England, for about $20 Canadian, one can purchase a video titled Caught in the Act or one titled Really Caught in the Act. Those are the titles of the videos. These videos depict couples intertwined in office stockrooms, elevators and cars, women undressing in department store changing rooms and husbands and wives in squabbles.

These people were in it for a commercial venture, so they needed to take into account the cost benefit analysis. In order to alleviate and address any concern about lawsuits, the way they dealt with this, not from a privacy interest, was to merely create a fuzzy picture of the faces and obscure them enough so they wouldn't be identified.

These videos, as difficult as it is to imagine, sold in the tens of thousands to the people in England.

The thesis I propose to advance before you is that we take the parallel legislation in part VI of the Criminal Code, which already deals with audio surveillance, and extend it directly, in the spirit and the language of that legislation, to apply to video surveillance.

We're not concerned, therefore, about the Rodney King situation. We're not concerned about the media videotaping, for example, demonstrations outside the House of Commons. We're not concerned with law enforcement conducting routine investigations with prior judicial approval. What we are addressing by extending part VI of the Criminal Code to video surveillance is our right to conduct our private acts in our own homes and in our own workplaces without interference and without invasion of our privacy.

Those are my comments.

The Chair: Thank you very much.

Is it the committee's will that we hear from all the interveners first and then you can ask your questions? Okay, so you're taking note of your questions.

[Translation]

Is that alright, Mr. Bernier?

Mr. Bernier: Quite.

The Chair: Excellent.

[English]

Mr. Chenoweth, please.

Mr. Chenoweth: I'm new to this experience and did not come with a prepared speech per se, but we certainly do have a number of perspectives to this topic.

I imagine that in the last decade our firm has installed virtually every form of video technology you may consider or discuss. We have been doing this, obviously, upon the request of our clients, which are normally corporations, but we have acted on behalf of municipalities and crown corporations. We have installed CCTV, overtly and covertly, in federal buildings. You get a feeling of the range of our experience.

At the same time, as Mr. Bell referred to, we also have an electronic countermeasures unit, which often is involved in cases of deterring or detecting business espionage. In the course of those investigations, we would use covert CCTV as one of the investigative techniques. We also would use various kinds of electronic countermeasures to detect the placement of listening devices or taps.

I should say 99% of the video technology we use is overt technology. We can all observe the fact that the camera's there or the dome is there, though I would like to point out that seldom do people walk around looking up and observe it. Also, 99% of the time we place our video technology in private property, such as office buildings, retail malls, privately owned parking lots, etc. They're not in public venues per se.

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What have we and our clients found through the application and usage of video technology, particularly CCTV? We have found, detected and prevented vandalism. We have documented sexual harassment - and conversely, we have disproven it. We have had clients ask us to cooperate with the major crime units of several police forces, through which we have discovered and documented fraud. Currently, we're involved in one investigation whereby we've reached the point at which the sums involved are in excess of $5 million.

We have detected and documented the theft of cash, property, information, equipment and product. In the corporate environment, that is more often than not done by employees or contractors than an external thief.

In the ECM or electronic counter-measures area, we have detected listening devices or discovered them in the telephone room of a schedule I or schedule A bank. We've discovered them in corporate offices, boardrooms, private residences, cars, corporate jets and in literally almost every type of business environment of which you could perceive.

Ironically, we are often the ones being called in for the electronic countermeasures situation because the resources are just not available. I put forward to you that the normal citizen or corporation trying to seek assistance from the police or government agencies in trying to determine whether or not they indeed are in fact receiving, being bugged, or under surveillance finds that the resources are just not available. Were it not for my firm and legitimate practitioners such as myself, they would frankly have no defence whatsoever.

What are the benefits other than the types of things we've found in the protection and deterrence I've just described? We have saved or reduced the shrinkage of product virtually to the tune of millions of dollars. Obviously, that reduced the cost of product, insurance, liability claims, etc.

We've recovered property. We've apprehended robbers, rapists and drug dealers who have been successfully convicted by our video documentation support. We have broken car theft rings, or provided the evidence at least that has been used in that regard.

We have saved the reputations of a number of individuals who were personally accused of various types of behaviour be it sexual harassment, racial discrimination, etc. We documented that they were not the ones who were responsible for that. Conversely, of course, we have also documented those types of actions taking place.

There are other benefits of which you may not be aware. Frankly, manpower in terms of security is very ineffective and extraordinarily expensive. A low-wage, poorly trained, typically fat security guard occupying a site for 24 hours a day, seven days a week, 365 days a year can cost a corporation or a property manager in excess of $100,000. I'm not referring to an Intercon security officer, who's highly trained; I'm talking about the low end of the private security scale. Your representative of the Canadian Association of Chiefs of Police can talk to you about what a cop costs; it's more.

At the same time, you're dealing with frailties of human nature. People need lunch breaks. They have to go to the bathroom, etc. Frankly, if a guard is standing there, the act quite often won't take place until the guard goes. I'm not being very articulate on this subject, but quite frankly, it doesn't work very well. It's very poor. Guards and cops need to be supervised, etc.

What I'm leading up to is that in many environments, corporate, commercial, industrial, etc., the combination of CCTV or video technology blended with human nature is an effective form of security.

I can carry on; I shan't. Thank you very much.

The Chair: I'm sure you will be asked by our colleagues for a further explanation. Mr. Swan.

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Mr. Swan: Madam Chair, let me come at this from, I suppose, the other perspective.

I would start by asserting two presumptions that I think ought to guide whatever recommendations the committee makes. The first presumption is that all of us have a right to freedom generally from any surveillance by anyone in circumstances in which we have a reasonable expectation of privacy. How that might be defined is something that could be discussed, but I think all of us have a sense of when we feel we're alone and when we feel we can act as we want without being concerned about having anyone look at us and subject us to surveillance.

The second presumption is that everyone should have a right to freedom generally from state surveillance, which is surveillance by the arms of the state, everywhere, at all times.

As for these two presumptions, obviously there are going to be exceptions, but I think that as general principles, they're both fair principles to advance and support, and the exceptions should be argued for on their own merits as exceptions to those principles. We should be able to walk around the streets of our country without thinking that we might be the subject of ongoing, high-tech observation by the arms of the state.

When we talk about the exceptions the state might advance, first of all, where those exceptions might constitute an unreasonable search and seizure or a violation of that reasonable expectation of privacy, it seems obvious that they should only be justified where they can be supported by a warrant.

When I talk of a warrant, I do not mean a warrant of the kind that is now authorized under section 487.01. The Canadian Civil Liberties Association has taken the view that intrusive surveillance, in which I would include both videotape and video camera surveillance, as well as the interception of private communications, should only be authorized where there is a serious, security-related breach of the law in national security issues or where there is imminent peril to life and limb in criminal law enforcement issues. In other words, while a warrant provision is justified, it should be much more narrowly drawn than the ones we now have.

Second, there should be some control even over the power of the state to target individuals in circumstances in which the individual does not expect privacy from his fellow human beings. For example, when I'm walking down the street, it's quite reasonable for me to expect to pass other people, have them see me there, recognize me and perhaps even make a note of the fact that I'm there. It's another matter entirely for the state to be pursuing me with cameras that can, in effect, record evidence about my activities.

The Chair: The private sector?

Mr. Swan: I'll come to the private sector, if I might, Madam Chair.

The next aspect, apart from targeted surveillance, which I've just discussed, is area surveillance. This is the surveillance of a place, as opposed to the surveillance of people.

When the state is involved in the surveillance of public places, it seems to my association that this should only be in circumstances where there are specified purposes that have been argued for against established criteria and where those criteria have been applied in an open process that involves the input of citizens into what places should be subject to surveillance. There should also perhaps be the involvement of someone who has state-sponsored expertise, like a privacy commissioner, to look at and make recommendations in favour of such surveillance.

Here's an example of things that might be justified at opposite ends of the spectrum. First, it could well be justified for the state to provide area of surveillance for the purposes of establishing a sanctuary. The designated waiting areas in the Toronto subway station come to mind as a place where people can go to subject themselves to security surveillance for the purposes of their own safety.

On the other hand, at the other end of the spectrum, the use of the kind of surveillance techniques that involve videotaping every demonstration on Parliament Hill on the off chance there might be a breach of the law involved in that demonstration is clearly the kind of thing that could not meet the criteria I'm suggesting.

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When lawful surveillance takes place and a recording is made, the recording should be treated as personal information collected by government and subject to all the rules for the collection, retention, access and destruction of personal information, because that is exactly what it is.

Surveillance by private persons probably fits into a somewhat different category. Mr. Skurka has suggested that there should be a crime of invasion of privacy by videotape. Certainly where there is an expectation of privacy, then no one, the state or an individual, should be allowed to invade that privacy by invasive surveillance mechanisms.

As for circumstances in which there is no such expectation and where the surveillance takes place on private property, it might be reasonable to allow a wider latitude to the owner of the private property. This is subject always to the protection of the privacy of individuals based on a reasonable expectation. This is subject also to the use to which the product of that surveillance is to be put over the long run.

Finally, consider situations off of one's own property. I'm talking about the situation in which I take my video camera to my children's soccer game. In general, the best response probably lies in the law of tort and in the kind of mechanisms that four provinces, including British Columbia, have developed. This is where there is a tort of invasion of privacy and of appropriation of personality. Individuals may, as long as there is no direct breach of criminal law, in effect protect their own privacy through the law.

Thank you, Madam Chair.

The Chair: Thank you, Mr. Swan.

I wonder, Mr. Bell, did you have anything you would like to add to that before I move on to Mr. Bobiasz?

Mr. Chenoweth: Madam Chair, I brought Mr. Bell with me more for the question and answer period in case certain questions came up.

The Chair: Thank you very much. Mr. Bobiasz, please.

Mr. Bobiasz: Thank you, Madam Chairman. Some of what I had intended to say has already been said. I'll probably repeat a bit of it, but I'll try to avoid that.

The first thing I'd like to do is to make explicit something you, Madam Chairman, alluded to. Steven Skurka and Ken Swan also alluded to this as well. This was the talk of a right to privacy.

I think we probably all know that it's based on, at least in constitutional terms, among other things, section 8 - this is probably the most important place - of the Canadian Charter of Rights and Freedoms, which is the right to be secure against unreasonable search and seizure.

It's not obvious in just reading the charter that it's there, but I think one of the most significant steps in the development of charter law is with respect to section 8. At a very early stage, in one of the first charter cases, it was recognized that when looking at the charter with a purpose of sense, section 8 has to be seen as being there to protect privacy. Section 8 does more than that, but it certainly protects privacy.

However, there is a significant limitation. This has nothing to do with section 8 itself, but with the charter. The charter is to protect all of us against actions of the state. It's in that context that a series of significant decisions, to which I've already alluded, were decided in the early part of this decade.

Consider the decisions in Duarte, Wong, and Wise, in which the majority decisions were rendered by Justice La Forest. He reinforced the notion that section 8 is concerned with privacy, and that such search and seizure goes beyond looking for tangible objects and taking control of them.

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This means essentially that a search can be made by way of the state involving itself with the activities of its citizens by taking advantage of technology. In one instance, it was the interception of private communications to which someone was consenting. It was a police undercover agent using a body pack. In another instance, it was an undercover operation looking for evidence with respect to a gambling operation in a hotel room in which they used a hidden video camera. In the third instance, they were trying to follow an individual in the countryside where physical surveillance of a conventional nature would have defeated the purpose. They used a tracking device.

In all of those instances, the court was not so troubled by the particular investigative means used by the police - indeed the evidence that was being challenged in each instance was ultimately admitted - but that the police were legally entitled to engage in those activities without any control by the state under the law.

Mr. Justice La Forest insisted that before the agents of the state involved in law enforcement intruded on the privacy of citizens, it had to conform to the requirements of the charter, which in those cases generally involved judicial authorization in advance.

As a result of those decisions, the government of the day asked officials in the Department of Justice to look at what, if anything, had to be done in response to those cases. That led, among other things, to amendments that provided a way for police to obtain authorizations for those specific situations and a basis by which to use certain techniques without authorization in emergency situations or to protect life and limb.

It also led to the provision that Steven Skurka and Ken Swan mentioned, which is section 487.01. This at least covers video surveillance. The essential function of that provision is to permit a judge to consider granting a warrant, an authorization or an investigative process that would no doubt run afoul of the law were it done without a judicial authorization.

For video surveillance, although it's not readily obvious, the technique in the Criminal Code, including section 487.01, is to essentially apply the same standards, controls and restrictions as are presently in place for the interception of private communications.

The Chair: Is it sound and voice?

Mr. Godfrey: You were saying that basically the things that would apply to wiretapping or taping would now be applied to video -

Mr. Bobiasz: To video surveillance,

The Chair: Thank you.

Mr. Bobiasz: I want to be clear about it: this is when the police or agents of the state intend to use it.

What was not done in that legislative initiative was to parallel the interception of private communications completely in the sense that a decision was made not to create an offence equivalent to the present offence of the interception of private communications.

One of the reasons why that was not undertaken in that initiative is because the focus was fairly narrow in its inception. The instructions the department had was to look at what was required, if anything, from those Supreme Court of Canada cases I mentioned, which had to deal with the use of these techniques by law enforcement.

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The other reason is the more fundamental one. When the initiative started, it was shortly after the then Law Reform Commission of Canada had issued a report dealing with a variety of aspects of police practices. They examined the area of video surveillance briefly, but felt that the complexities of the area warranted a specific study.

They said that rather than make a recommendation at that time, they thought it should be a subject of a special study. Unfortunately, part way through that study, the government of the time collapsed the Law Reform Commission of Canada along with a number of agencies.

The Chair: What was the date?

Mr. Bobiasz: I think it was February 1992. It was one of a number of projects that just simply weren't completed.

In any event, that was one reason why the decision was made not to look at the area of video surveillance generally.

I think perhaps that might be enough from me at this time, Madam Speaker.

The Chair: Thank you, Mr. Bobiasz. I think one of the things you'll find is that questions will come now. As for any further information we might want, we might be in touch with you by letter for a completion of the information, for which we thank you very much.

The procedure will be a question period at this point by the members around the table.

I know, Miss Grey, that you have other very serious responsibilities too. I just want to know what your time constraints are and if we can have Mr. Bernier go first. Do you want to go second? Mr. Godfrey has just given -

Miss Grey: Sure. I'm here for half an hour or so.

The Chair: All right.

Miss Grey: I'll just fit into the best rotation.

The Chair: Mr. Bernier, s'il vous plaît. We'll give ten minutes for the starting round, and then we'll move.

[Translation]

Mr. Bernier: I would first like to thank all the witnesses who agreed to take part in our deliberations. My questions are for Mr. Chenoweth since he has a very practical experience of the various issues, but I would also appreciate receiving comments from the other witnesses.

I would like to start by saying, to Mr. Chenoweth and to Mr. Bell, that the committee is not a board of inquiry. It is not a court of law. My only aim in asking your these questions, even those that may unsettle you, is to gain an understanding of what these techniques can be used for and, more particularly, of the consequences that they may have.

You said earlier on that your firm does electronic debugging. In other words, you have devices that enables you to detect electronic eavesdropping devices, if I understood you correctly, and also allow you to protect your client from industrial espionage. Would the equipment that you put at your clients' disposal enable them, in turn, to indulge in electronic industrial espionage?

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Furthermore, when you spoke of surveillance cameras in public places, you also spoke of setting up this type of camera in private places. Would you tell me whether, in general, a shopping centre that belongs to private interests, would be considered as a public place. According to you, is one perfectly free to engage all types of surveillance but, especially, what happens to the videotapes recorded by the cameras? What is done with them? How can the population be sure that that type of information is only used for security purposes?

You then mentioned several positive uses for surveillance cameras and I agree, at least personally, that there are such positive uses. I would like you, however, to tell us if you can about the other side of the coin. In other words, when can the use of surveillance cameras be prejudicial to our rights and to our freedoms? When have reputations been jeopardized because people were videotaped in unflattering circumstances? Do you have any examples of that sort of thing that you might tell us about? I would hope that you could.

I would also imagine that a firm such as yours has given some thought to the limits that apply to the use of this type of surveillance cameras. Does your firm have an in-house code of behaviour, a code that you apply to your clients and which would insure the general population a certain level of trust regarding the use of this type of devices? Thank you.

[English]

The Chair: Mr. Chenoweth, I suppose that's an hour's conversation, but you have about five minutes. The rest will get picked up or else we'll write you and ask for a clarification.

Mr. Chenoweth: Thank you very much. I felt those were three very pertinent, excellent questions. I'll try to be as brief as possible.

Normally we do not make our equipment available to our clients. In a normal CCTV installation, which is the bulk of the work, it is permanently installed as is that light or clock there.

I believe you were referring to the kind of electronic equipment that could be used to detect surveillance or intrusion, and making that equipment available. The equipment is highly sophisticated and can only be used by experts. We do not make it available to our clients.

Having said that, sir, I brought with me examples from Popular Communications - I can leave these with the committee - and U.S. Cavalry. These are magazines you can buy at any news stand and they contain the ``wireless covert video clock camera'', which you can purchase for only $1500. Of course there's also the ``professional covert TV system''. Here you can get the audio jammer for only $169. You can get the advanced wiretap detector for $295. By the way, anyone who thinks that this really is a good wiretap detector is kidding themselves. Having said that, you can also buy in those magazines all the bugs you want to get.

Mr. Godfrey: Clock cameras are not like clock radios. They are the ones that actually register the time the image is taken and the date. Is that what that means?

Mr. Chenoweth: No, sir. This is what appears to be a clock radio. It just happens to have a covert camera in it.

Mr. Godfrey: Do most security cameras actually have dates and times on them as well?

Mr. Chenoweth: No. First of all, those aren't on the cameras; those are on the recorders.

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Here's a standard to illustrate how portable a recorder is. On this side is the battery that would allow it to be used for 24 to 48 hours, depending upon its temperature. So you can now see how easy it would be to place a recorder somewhere. This is the device that puts out the date and the time lapse and then superimposes it onto the recording. So it's not done in the camera itself; it's done in the recorder.

This is your proverbial Sony Walkman or something like that. It also happens to have a covert CCTV camera in it. Imagine that hooked up to this, and I could be in the room.

So it's not us providing the equipment that they in turn can use for their own purposes. Virtually any individual, much less a corporation, can buy, with no barriers whatsoever, the type of technologies we are discussing, both in terms of video and electronic technology. It's a matter of real public record in that regard.

Your second question referred to public locations.

The Chair: If you could just hold on for one second. I'm curious, Mr. Skurka, as to whether it's legal to use these things without a warrant or some kind of permission.

Mr. Skurka: This is how it works. This is how absurd the present state of the law is.

If you have the video portion on and you have no audio portion, then the law doesn't touch it. Take the very same scenario, put an audio machine on, and now we're into the wiretap provisions of the Criminal Code, assuming that one of the persons present isn't a consenting party.

That is the highlight of what I'm suggesting. It shows the dichotomy and really how artificial the separation is. Surely it can't be an on/off switch of an audio portion that should determine whether or not it's criminal conduct.

Mr. Chenoweth: The second question related to usage of cameras and surveillance in public versus in private, and what a private location was.

Do we consider, for instance, a mall to be a private property or location? Actually we do. Certainly the owners of the property and the mall and the property managers who run those malls also consider it private property. The laws that we carry out in terms of our security guards who are on those properties are carried through in terms of various acts relating to private property.

That's a legal answer, but I'm not a damn lawyer, so I'm not going to try to give you a legal answer.

What I will tell you is that we have been able to take shopping malls that were virtually being terrorized by gangs and we've been able to turn those malls into safe welcoming places for the community to shop at. These were places in which people would no longer shop because they were afraid that their car would no longer be parked, their children would be abducted or they would be personally attacked, etc.

We used a variety of security techniques. We did not just use manpower. The cost of taking a large, super-regional mall and only applying manpower as a security device would be prohibitive for that mall. Second, it wouldn't work. It would not be as effective as the usage of manpower plus things like video surveillance.

Frankly, in those malls or communities where we've gone in to make it a safer place to visit and shop, the community as well as the local law enforcement agencies have been extremely grateful. They have, in our perception, not minded the usage of things like CCTV, much of which is overt, but not all of it.

I hope I answered your second question satisfactorily.

You asked what happened to the tapes. Our normal procedure is that, first of all, it's up to the local user or applier.

In our instance, we generally would keep the log of tapes from the recordings for approximately a week to ten days. Depending upon the number of cameras and recorders, this can be quite an inventory, up to a hundred tapes. At that point in time, they are simply recycled. They're erased.

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The Chair: It's an ephemeral printing.

Mr. Chenoweth: Absolutely.

Mr. Assadourian: They're reused.

Mr. Chenoweth: They're reused, absolutely. There's no reason - it's extremely expensive - to treat them any other way.

The only time, to my knowledge, when that's not carried out is if the tape is observing something that involves a point of law. It might be the cops or a slip and fall. Say someone said that they slipped and fell on your walk and that they were going to sue you, or something like that. So there has to be some kind of specific action, such as a request by our client, the police or the lawyers involved to save that tape. That's normal practice for tapes.

What guarantees are there for the proper usage of cameras in these kind of environments? I don't know of any guarantees. Having said that, I can't remember - to my knowledge I don't know - being asked by someone like a property manager in a mall or a mall owner to apply CCTV surveillance or technology in what I would deem to be an ethically, morally or even legally improper usage.

There was the question of the harmful rights. You asked whether I could give you some positive usages for CCTV in surveillance and some negative examples.

If I thought there was covert video surveillance in my bedroom, I'd be extremely upset. Can that happen these days? Yes, it can. Is our firm asked to do that? No, we're not. Are there people out there, private practitioners, who can and would do something like that? Yes, there are.

The committee referred several times to the technology being invasive. The technology is not invasive; it's the people who use it or how it's used that's invasive. It's not the computer, but the people who use the damn computer, etc. We must be very careful about this. What partially concerns me is that we keep talking about the technology. I caution the committee to be careful on this point. People use the technology.

The Chair: However, Mr. Chenoweth, I think this is a committee that reflects somewhat the ordinary population out there. Many of us are not aware of the extent of the invasiveness of the newly designed technologies.

I recognize, therefore, that the issue is how it's used, but I think we also have to know what it is. I think you indicated to us today what it is in a much more graphic sense that some of us had even thought of. I appreciate your correction, but I'd like you to understand where we come from. We will certainly keep in mind what you have said.

Mr. Chenoweth: I'll just make one last point. It has to do with the public area.

Madam Chair, you referred to the fact that you were uncomfortable when you had heard or became aware of that Baltimore area of 16 square blocks. I don't know if you've ever been to that particular area of Baltimore; I have. Madam Chair, you would be uncomfortable walking in that area during the daylight, and you would not walk there at night. You would be far more uncomfortable than you are at the concept of having the surveillance there.

I put forward to you that Baltimore will be able to document for itself, the taxpayers and the community, a dramatic decline in the incidence of major crime in that area without necessarily having to increase significantly the cost of manpower and police. So at the end of the day, I believe that three or four years from now, if you were in the city of Baltimore, you would be extremely comfortable with that surveillance in that 16-square-block area.

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The Chair: Thank you.

Mr. Swan, I can see you bursting from the seams, and rightly so, I think. I'd like to hear your perspective.

Mr. Swan: Madam Chair, it's always difficult when the tools of the devil are in the hands of very reasonable and intelligent people. I agree with Mr. Chenoweth that it's not the technology itself that is the problem but those who use it. It can be put to good or evil uses at the will of those who have control over it. We shouldn't lose sight, however, of the fact that the technology makes it dramatically easier for evil people to be evil.

This isn't just a matter of allowing police officers to stand on stilts with binoculars. This is not just a matter of degree but a matter of kind; it's different from the kind of policing that normally takes place. I probably could never have described it to you in terms that would have gripped you as well as Mr. Chenoweth has, because in telling us what he does he indicates the dramatic potential for misuse of technology that has its purposes in the hands of other people.

I think Mr. Chenoweth has put exactly right the centre of the debate on area surveillance. There are places that are unsafe without surveillance and places that are safe with surveillance. But if we're going to create a society in which we use surveillance to achieve safe areas, to achieve sanctuaries, or to take back a large area from criminal elements, then that has to be a discussion that takes place in public. It has to be one where we know what the ground rules are. It can't be one that is done by police officials alone. It can't be a state decision imposed on everyone else. It's a community exercise and it's an exercise that can't be done merely by the political process, all those in favour of putting cameras in the downtown core, but one which also has to take place against the backdrop of some carefully crafted criteria.

The Chair: Thank you. I felt we had to get the pros and cons from a civil libertarian's perspective into the debate as well.

Miss Grey, please.

Miss Grey: Thank you, Sheila.

I just want to make reference, Steven, to something you said about the fact that someone was videoing and they just distorted the faces so you couldn't identify the people. Is that legal? Is it ethical?

Mr. Skurka: I have no doubt that it's unethical, no problem saying that at all.

Is it legal? It's not against our law right now. Their concern was for civil redress. All they were concerned about was that these people might engage them in a civil suit. So let's make their pictures obscure and fuzzy so that they're never going to be able to take us to a civil court and argue for damages. We'll always have a comeback; we'll say we didn't know it was you until you came to court and sued us.

That's really the motivation. It's all just that commercial motivation to guard against it. There's nothing wrong with that. I'm not aware of England, but if you transport that to Canada there would be no criminal conduct that would engage that kind of activity.

Miss Grey: You said we could just parallel section 6, which already deals with audio, to make it video. Would that be easy or hard to accomplish?

Mr. Skurka: You'd have to be somewhat fluid because there are differences between audio and video. The best example is that video surveillance is much easier to facilitate.

We can see two people sitting on a park bench. Their participation just sitting on that bench may be very incriminating, but they may not have any reasonable expectation of privacy if they're sitting on a park bench. If I want to overhear what they're going to say, I can't do it from a distance of 100 yards. I have to move close and I may have to engage that audio surveillance, that surreptitious surveillance. So it may be easier not to engage the Criminal Code if all we're interested in is video surveillance.

What I'm saying is that if you just allow for the differences of audio and video and the distinctions between the two, in my view it should be fairly easy to model legislation to deal with video surveillance. I can't envisage that it would be an obstacle, and I'm encouraged because it appears it hasn't really even been dealt with. All that's been dealt with by 487.01 was really a response to the Wong case and nothing more. No one has really considered it beyond that.

Miss Grey: Thank you.

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Ken, you made a couple of presumptions at the beginning of your remarks. One of them - and correct me if I'm wrong - was when you said that basically we all have a right to freedom where we have expectations of our own privacy. Was that close?

Mr. Swan: That's one, yes.

Miss Grey: Okay, that was one of them.

Now, in the case of the stepfather videotaping the stepdaughter in the bath, he had reasonable expectations of his own privacy. Where do rights, responsibilities and forfeiting rights come in where there is criminal activity and this kind of behaviour, for instance? He was in his own home, but should have had every expectation of his right to privacy.

Mr. Swan: But that may be his right to videotape in his own home. The expectation of privacy I would be referring to would be hers. It is her expectation that when she's taking a bath, she's not being the subject of surveillance. And that right actually raises a very important fact.

Assume the house is owned by the stepfather, and the stepdaughter is merely a visitor in the home. She can assert that right, even against the owner of the property, and each of us should be able to assert that right to an expectation of privacy.

When we go to the washrooms of the mall, for example, although a different set of circumstances might prevail out in the commercial areas, we carry with us a right of privacy. We can assert that against surveillance, in some circumstances at least, even when we knowingly go into a place, like a bank or a mall, where surveillance takes place both overtly and covertly.

Miss Grey: Fred, I noticed you were looking out the window here. There are people wandering these rooftops all the time. This is my caucus room, and it's interesting, because you were asking if I was nervous. I could tell by the look on your face and your body language that this obviously is a possibility, that this could happen. Somebody looks official. They have on the jacket. Could people be wandering around here doing surveillance?

Mr. Bobiasz: It was even more ironic, Miss Grey. There was a person just behind you, beside the camera outside, with what looked like a camera or a telescope.

Voices: Oh, oh!

A voice: Tell him he's wired.

Mr. Bobiasz: He wasn't looking our way; he was looking -

Mr. Godfrey: Can I explain that? It has to do with the rumours about Deborah Grey and Prince Andrew.

Voices: Oh, oh!

Mr. Godfrey: And I'd just like to say that those rumours are totally false.

Miss Grey: Well, I'm sure my husband will be really glad to hear that, and that's absolutely true. But really, it gives you the creeps, doesn't it?

Mr. Bobiasz: Well, as I said, it certainly appeared ironic in our context, but I think when you appreciate... The difference, too, is a point I tried to make, that when the department last looked at this area, it was six years ago.

A lot has changed now, and one is the ubiquitousness of the technology. This is not just the kinds of devices Richard mentioned. Every day I walk along the Hill, going back and forth to work. During the summer, if I had a dollar for every video camera I saw just getting offloaded from the tourist buses, it would be worth a lot.

Now, to the extent to which I have to be concerned, I would be concerned about some stranger videotaping me accidentally, or even deliberately. I haven't lost much sleep over that one. But as somebody who may have to look seriously at any recommendations this committee makes, and in trying to develop solutions, appropriate solutions, I would be concerned about not unduly interfering with what every one of us does on a day-to-day basis, just in our casual use of technology - video cameras and cameras - with what people who are interested in protecting their safety or their property want to do legitimately.

I agree with Steven Skurka that the starting place to deal with this problem is to see to what extent we simply want to parallel part VI of the Criminal Code. But we have to be concerned about being a little too broad, unduly inhibiting private citizens in their casual activities, or people trying to protect their property and safety.

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I noticed that terrible aircraft tragedy that happened in Comoro a few weeks ago. Probably one of the main pieces of investigative evidence that will be available to try to sort things out comes from a video camera.

We've all seen the casual use of video cameras producing pertinent information with regard to matters that are going on around us. It's clear in everybody's mind that there are good uses of the technology and there are inappropriate uses of the technology.

In terms of coming up with an appropriate balance from a legal framework, it will be imperative to identify what we want to deal with.

Miss Grey: Thank you. I might just say, Fred, if you're paranoid about people getting off buses with video cameras, wait until you see them jogging by with Walkmans on.

Voices: Oh, oh.

Miss Grey: That's just amazing. As I said earlier, it gives you the willies.

Richard, let me just finish off by asking you and/or Alan about the 16 square blocks in Baltimore we've talked about. Yes, that does make it much safer, and we would feel better walking around those streets, daylight or dark. Do the criminals figure this out? Of course, does the criminal activity then change rapidly, so that the criminals say those blocks are marked, and we're moving elsewhere? Does the crime then shift to a non-surveillance area?

Mr. Chenoweth: The question -

Miss Grey: So what do we do then? What's the next phase - 32 blocks?

The Chair: In a perfect society you just wire us all.

Miss Grey: Yes, well, that's the scary part. That's what we're getting -

The Chair: I fear.

Miss Grey: - closer and closer to, and that's why I'm asking you.

Mr. Chenoweth: Miss Grey, there's no one solution. I think it's important in terms of the protection of private property as well as public welfare. We again have to put this in context.

No, absolutely what will happen is that the incidents of crime will move to other sectors.

There are four large malls in a region of southwestern Ontario. We provide the security for three of them. You really don't want to shop at that fourth mall, because that's where they all move to. That's the reality of life.

Am I helping you on that?

Miss Grey: Yes. I think we all need help on that to realize that with this technology and the capability to use it -

Mr. Chenoweth: You must understand as a critical point that in that Baltimore area they will free up other police and law enforcement resources, which they, in turn, can redeploy to areas where they can be more effective. They don't have to have as many cars and foot patrols, etc.

The application of this type of thing, where it's the eyes, for example, is very cost-effective. Frankly it can really help make better use of our tax dollars.

Miss Grey: Good. Well, thank you. These are huge areas we need to grapple with in terms of legislation, morality and everything else.

Mr. Chenoweth: I would just like to make a point of correction for Steven, and this and that. If someone wanted to tap this room, they would not have to be standing outside. They could be 500 or 600 metres away. They could be on the roof of the building across the street. Quite frankly, they could be a mile and a half away, and none of you would know about it.

The point you were making about whether you have to be closer to eavesdrop, versus usage of a camera, is no longer true.

Mr. Skurka: I'm talking about just with your ear, not with technical equipment.

Mr. Chenoweth: With my eyesight, I have to be as close as my ear.

The Chair: Thank you very much.

Who had their hand up first? One question each, please, and then we'll see where we're at.

Mr. Assadourian: Actually I have a few short questions.

First, is there a requirement for training, screening, for someone to start a company like yours? That's my first question.

Second, I had a question my colleague from the Bloc asked. What happens to the tape after the investigation is over? You said that a week or so after you destroy it, because tapes are expensive, and you want to reuse it. But there is no law saying you have to destroy the tape? That tape can be used in the future against somebody else without his or her knowledge? That's the question.

Is there a regulation that tells you you can't sell your company to a criminal element? For example, if a company like yours... I'm a criminal element in organized crime, or whatever. I want to come and buy your company, because I know you have some information damaging X, Y, Z. So I buy everything, and that information is there.

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If there is no law requiring you or the police to destroy the tape a week or two after, the question is, do you as an individual corporation and the police comply with the same regulations? Does that mean nobody tells you what to do with the tape after you've done your investigation, so the police can also keep a tape 10 to 15 years old, and bring it forward for some other situation?

My final point is that say the police investigate a group, a church, an organization, whatever it is, and we're being investigated here. At the end of the investigation two or three of these individuals are charged. You, you, you, me...everybody is in the picture. Would that tape still be maintained on the file? Or by law do they have to be destroyed after the case is over, has gone through the court, the system, and everything else? The person is guilty, serves his or her sentence, so the case is finished. By law does that tape have to be kept or destroyed? Is there a requirement in the law either way?

The Chair: Thank you.

Legal counsel, who's going to answer this?

Mr. Bobiasz: I think I might be in a better position than Mr. Chenoweth to answer that question.

In terms of information collected by the police, usually that information is maintained and limited in use with respect to an investigation or a prosecution. After the investigation and prosecution is over, there is not going to be one. They still usually hang on to it.

In some jurisdictions they may have to hang on to it for a certain period of time because, as someone alluded to, it is personal information. It's collected at the federal level. It's controlled by the Privacy Act, and most provinces have similar legislation.

The Chair: Under criminal law as well?

Mr. Bobiasz: The Criminal Code says nothing, one way or another, about what to do with information the police gather during the course of an investigation.

If these are tapes that have been accumulated in the interception of private communications, there's nothing specific in the code that requires that information to be maintained. But there is a provision that places the materials used to get an authorization under the control of the court.

I understand the practice in most jurisdictions is to wait until the court decides what to do with those materials. When the matter is over and done with after a certain period of time, they might order it to be destroyed, at which time the police would probably get rid of those tapes.

Mr. Chenoweth: Your first question was is there a requirement or a legal qualification to do what we do. I'm extremely glad you asked us that question. The short and simple answer is no.

Mr. Assadourian: Can anybody start the business of investigating anyone? That's scary.

Mr. Chenoweth: For $299 you can buy the type of equipment that would allow you to claim that you have the ability to practise electronic countermeasures. Other than that, you might have to put in an ad in the yellow pages, and take out a business licence.

Mr. Assadourian: No nothing?

Mr. Chenoweth: To my knowledge, absolutely not, and in my opening remarks I personally made reference to that. To our knowledge, because this technology, on either side - detection or the usage... Frankly, you can simply walk into Radio Shack, and if it's not put together, you can buy the three components and glue them together, solder them together, and it's done. Anyone can do it. Anyone is doing it, and it's almost impossible to stop.

It's also extremely difficult to detect. With wireless technology, I could be bugging this room, I could be videotaping this room.

The Chair: You're making us all nervous, as we have private meetings in this room.

Mr. Chenoweth: Madam Chair, I could be a mile and a half away. So we're no longer in the days where you can follow the wires, and see what's at the other end.

I do believe that there are a number of people who call themselves private investigators, anti-fraud firms, or things like that, who, shall we say, do not act in an ethical, moral and sometimes legal fashion. I am not aware of any major deterrent to prevent them from carrying on that business.

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Sir, in the province of Ontario tomorrow, as long as you do not have a federal criminal record and you do not have outstanding parking tickets, you could apply for and receive your licence as a private investigator.

Mr. Assadourian: No training, nothing whatsoever required?

Mr. Chenoweth: That's right. As a private investigator, you are not allowed to do what we do. I will stop there. We operate extremely differently in terms of who we employ.

The Chair: Do you present a code of ethics or a code of practice to the potential client, which indicates the parameters within which you will work outside of the fact that you went and got...? I mean, you're not like someone who just went and picked up a licence?

Mr. Chenoweth: Yes.

The Chair: Is there a code of practice?

Mr. Chenoweth: Yes, there is. We are a private corporation, we're large, and quite frankly we don't get our business from advertising. We get our business from our clients, etc. Our business tomorrow is only as good as our reputation or conduct.

It's a bit ironic that in Mr. Bell's unit, we operate, for instance, on a need-to-know basis. I mean, that's how far we'll go to preserve confidentiality, etc. So yes, we have a strong code.

Mr Bell: Perhaps I can just sort of add a little to that scenario. When I, my director, or my countermeasures department go to speak to a potential client, we have to make a judgment decision about the guy's background, what he wants us to do. Sometimes -

Mr. Assadourian: That's your own code of law?

Mr. Bell: Yes, that is our own code of ethics. Now, the problem is that I have been in meetings where I've been asked to leave halfway through the meeting, because it's obvious to the client that we're not going to do what he requests. So we then leave.

As Mr. Chenoweth said, if one of my guys conducts a sweep, or we insert a covert camera into a client's location, there are only two people who know about it, the guy who does the installation and myself. I am not required by my company to pass on that information. Our records are such that there are file numbers so there are no names on any of these. That's how we maintain our confidentiality for our individual clients.

Not all companies do that. There are a lot of cowboys out there who will do anything for anything. This is the difference. It's those types of people really towards whom the legislation has to be looking.

Mr. Assadourian: One quick question.

The Chair: It's Russell's turn, unless you want to ask Russell.

Mr. MacLellan: As long as it doesn't take from my time.

The Chair: Well, I can tell you we have from now until 1 p.m. For the last ten minutes, we'll allow John to have a word to say, please. You're going to be next. So finish your question fast, please.

Mr. Assadourian: Is there a distinction between your organization and the police as far as the law is concerned? What you can do, the police can do; what the police can do, you can do? Is that right, or are there distinctions?

Mr. Chenoweth: Again, I'm not a lawyer, but I believe there are huge distinctions between what the police can do, and what they cannot do. There's also a huge distinction in terms of the circumstances. As I said, we mostly act on private property. The owners or the occupants of that property are calling us in to act on their behalf.

Mr. Assadourian: Thank you.

The Chair: Mr. MacLellan.

Mr. MacLellan: Thank you, Madam Chair. I want to thank the witnesses, as well, for their testimony. It's been very helpful.

I want to just throw out a few suggestions with respect to proposed legislation, and to get the feeling of the witnesses. One would be that we'd have to restrict the use of videotapes to just the purposes for which they were intended, and for no other purpose whatsoever. And it would be unlawful to use it for any purposes other than the purpose so intended.

Also, I think there's a difference between videotapes and listening devices. With respect to listening devices, we expect them to be clandestine. No one's going to leave a tape recorder on the table, and expect anyone to be fooled by it. With respect to video cameras, I think we have a reason to believe, even in public places such as shopping malls or in the 16-square-block area in Baltimore, that the cameras should be visible.

Frankly I would object, and I would think it an invasion of my privacy, if I went into a shopping centre where the video camera was not plainly visible. Frankly I would think that would be an invasion of privacy. There's no reason why video cameras can't be plainly displayed if you're looking for them.

The Chair: And over the gambling tables?

Mr. MacLellan: Yes.

Mr. Godfrey: You know what they are.

Mr. MacLellan: I would also want to suggest the possibility of certain notices being posted about the fact that video cameras are present in certain locations.

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I would also want to just think about the possibility of... As Mr. Chenoweth said, the distance for listening devices... A mile and a half is a remarkable distance when you consider that they can listen to a conversation here. We now have a central registry with respect to firearms. What about the possibility of a central registry with respect to certain listening devices or video cameras, or is that too onerous to require?

The Chair: Which one of you beside Mr. Chenoweth, who has to defend whatever, would like to speak to this?

Mr. Skurka: You might find one comment very interesting, Mr. MacLellan. At least in Metropolitan Toronto, there are videotape cameras at police stations, and they're at various locations in the police stations. When the person is under arrest and brought to the garage in the van, there is actually a huge sign that warns the prisoner they're going to be under videotape surveillance as they go through the police station.

A voice: That's under cover.

Mr. Skurka: There's the irony, because that's the only place I'm aware of where the sign exists, in police stations in Metropolitan Toronto. That's all.

Mr. Godfrey: Including in the cells.

Mr. Skurka: Well, no, they warn you as you come in that there are videotape cameras. You have to go through that door, and the cameras are visible. I know this, because I've defended officers who have been involved with the videotape cameras, and it's clear that they're not hidden - they're visible - and the prisoner is warned that they're there.

The Chair: I'm using hand signs, so that I don't interrupt. Mr. Swan, do you want to add anything?

Mr. Swan: Nothing Mr. MacLellan has said causes me any concern.

Mr. Bobiasz: I just want to make an observation about seeing the analogy between a firearm and a video camera. I think the question has to do with how likely harm is going to occur from a camera, as compared to a firearm, and whether or not you need an analogous -

The Chair: I'm sure with Charles and Diana it did a lot.

Mr. Bobiasz: Well, it did, but I have a camera and whether I want to have to pay $60 a year to register that camera... And for what purpose? So that if the police are called from my house, they can find out that I have a camera -

A voice: Yes.

Mr. Bobiasz: Because that's one of the reasons we want to register firearms. We want to be able to know where these are, so we can govern ourselves accordingly.

So I think there might be some similarities, but given the casual use of video cameras, I'm not sure whether a licensing scheme, like the one we're doing for firearms, is appropriate.

The Chair: We are just examining all other kinds of things.

Mr. Chenoweth, do you have any thoughts?

Mr. Chenoweth: I think you'll find that the usage of signage indicating the application of surveillance is actually quite extensive in the private sector. Certainly in the majority of situations where we are putting in overt cameras in that shopping centre, or that parking lot, it's being used. And quite frankly, it's a good thing, because it also acts as a deterrent.

Obviously there are situations where one is using covert CCTV as part of an investigative technique, so that if a sign was there, it would defeat the whole purpose of the exercise.

You cannot regulate or register the technology, because, as I said, you could literally go to Radio Shack, buy the various components, and assemble them yourselves, to have effective listening devices, etc.

Mr. Bobiasz: Mr. MacLellan mentioned long-range listening devices. If we're just looking at audio interception, there is a provision in Criminal Code section 191 that prohibits the possession of technical equipment that is primarily useful for the interception of private communications. Licences can be given and obtained through the Commissioner of the RCMP. For certain very specialized equipment, that's an effective provision.

The dilemma comes when a piece of equipment can be used to intercept private communications, contrary to law, but when it can also be used in a legal or lawful fashion. It's more practical to see the regulation of intercept equipment under this provision, rather than video equipment, simply because a lot of video equipment, as we all appreciate, is used perfectly appropriately.

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The Chair: This is the last question and answer.

Mr. MacLellan: I mean just the registration of those certificates the RCMP grant.

Mr. Bobiasz: I'm not sure to what extent they're actually involved in issuing certificates, and what they do with them. I expect that they are registered after a fashion, but I think it would take the RCMP to answer that one.

The Chair: Anything further, Russell?

Mr. MacLellan: On another, but it's not the same thing. If we get time later on, but it's...

The Chair: Okay. Mr. Godfrey, at long last.

Mr. Godfrey: Well, thank you.

I guess the first question is to Mr. Chenoweth, and I ask it with some trepidation. Not only is he a constituent, but he's also a fellow skier. After this question he has the capacity to run me down - or worse, videotape my performance.

Mr. Chenoweth: I already have, John.

Voices: Oh, oh.

Mr. Godfrey: Sorry about that. Fortunately, you haven't recorded my curses.

A voice: It's not pretty.

Mr. Godfrey: It ain't pretty. And they won't be selling it to the newspapers.

If I understand what you were saying with your colleague, Mr. Bell, basically since you're running an honest business, you turned down unethical offers and all the rest of it, but there are a lot of bad cats out there. I thought I heard you almost explicitly say that you would welcome some kind of regulation of... I guess I'm asking if it is a regulation of your business, as a business, or the creation of certain principles, which would then allow you both to protect yourselves - you know how far ``too far'' was, as you're going on your own ethics and your own code of conduct at this point - and also give the citizen protection against the bad cats, which seems to be a very haphazard business, as I understand it. It just depends on the goodwill of people like you, but there are many possible abuses.

What are you asking for? Is that a fair interpretation?

Mr. Chenoweth: John, I wasn't specifically asking for anything.

Mr. Godfrey: What would you suggest we do?

Mr. Chenoweth: Having said that, I believe that the private security industry in Canada has been a complete and absolute failure in terms of self-regulation. I believe that none of the Canadian private security industry associations are effective in that regard. I believe that if you look at the criteria for membership, there are people who sell products and services who I personally would not allow into my home.

Mr. Godfrey: Let me understand, there is an association, a loose -

Mr. Chenoweth: There's more than one.

Mr. Godfrey: I see. So if it's not a self-regulatory exercise, and if there are no barriers to entry, so that for $299 through a mail-order catalogue you can buy at the news stand down the street you can buy the technology either to do it or to prevent it, what's left to you? You're not going to be able to stop the technology.

The Chair: I don't think there is any question of our even thinking that we could stop the technology, unless there was some way in which we could encourage the personal responsibility of the companies building the technology that would allow certain preventative measures. I don't know; this is exactly what we're examining.

Mr. Chenoweth: Most of the technology is foreign-made, or sourced from a variety of countries in the world, ranging to our brothers to the south.

I do believe that perhaps the committee could consider looking at some means of, shall we say...along the lines of what you were talking about, Mr. Godfrey. That is something in terms of trying to legitimize, create a level of competency, honesty, whatever it is, in this area, for its practitioners.

Did you get my point, Madam Chair?

The Chair: Yes.

Mr. Godfrey: But is the emphasis on...? Where does the power lie? Is it the regulation of the industry, or is it enhancing the rights of the individual who is subject to abuse by the industry? I think there's a distinction, but perhaps one of the...

Mr. Chenoweth: Personally, John, I think that when you walk into Black's Photography, as a stocking-stuffer you can buy cameras that are almost as small as the ones I showed you, which also record, etc. I mean, to try to control the technology as manufacturing is very difficult. I could be walking down the street, and we could also be skiing. I could be taking you, taping you, etc. So I think that's very complicated.

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I really think we have to be very careful. If we overcontrol, I do believe we can actually impede freedom. We can actually lead to the further cost of life. I know of parking lots for hospitals where they couldn't get nurses to work the midnight shift because they were afraid of going to and from their cars. I'm sorry, just posting guards there didn't work.

The Chair: Yes, the balance did not -

Mr. Chenoweth: Of course, there's a balance.

So I would recommend that you look at the practitioners, and try to create, through whatever means are appropriate, a certain level of legitimacy for them.

Mr. Godfrey: I see the horse is straining over here, so let me just back up a bit, and perhaps you can roll what you might have said in response to that into a larger framework.

Here we are as a committee trying to figure out what effective contribution we can make to the debate. We understand that, for instance, certain things are probably excluded. We're not going to force through a constitutional amendment, and we can't tell the provinces how to conduct their affairs, though we might want to have a discussion with them on that.

So it seems to me that as we roll along, we have to operate under - how should I put it? - a moving hypothesis, or a rolling hypothesis, which we need to test on the witnesses. Let me just try this as a way of understanding the problem, because, as you can understand, we're really struggling with this.

It seems to me that there are really three realms of activity where privacy is affected. First, there's the realm where the state is the principal actor with regard to the citizens or group of citizens. The second range are those activities where individuals come into contact with business or commerce. The third one is really between individuals, the example of videotaping one's stepdaughter, or whatever it is.

Privacy is affected in each case, but it's a different dynamic in each case. It's one to one. One question would be, well, have I missed anything out in my roll call? Secondly, okay, if those are legitimate -

The Chair: We should take note of that, because we're going to wrap up with you responding.

Mr. Godfrey: If that is a legitimate series of ways of dealing with the problem of privacy through different prisms, how the individual can be affected by different outside agents - if I can put it that way - where do we go with that?

The researchers have asked this question, which I think is really crucial: what's the preferred way to regulate intrusions into people's privacy? Should it be through a single, all-encompassing statute or regulations, or through general codified principles, which can then be tailored or modified to suit particular sectors or situations?

Where are we right now? Today we're examining one of four areas that are in the area of emerging technologies. What has brought us together is a general concern for privacy, a belief that it is a fundamental human right, and a concern about the fact that these evolving technologies are setting up a whole series of intrusions into the life of the private person. We got a good example of it today.

Given that we're talking not only about closed-circuit television, as we are today, but we're also going to be talking about DNA testing, data matching where you bring banks of stuff together, biometrics, which are measuring the hand and all that sort of stuff, is it in the logic of each of these technologies that they need special treatment? We can use this one as our test case. They are unique, they present a different dynamic.

Or can one set up a general set of principles, and then get to work on the audio portion, the video portion, the regulation of companies, and so on?

My question, particularly to these folks, is whether my classification is right. Is that a useful way of looking at this?

Then what do we do about it? Do we then have a general code, or do we produce a huge series of detailed provisions that deal with the logic of each of these four sectors?

It's just a little pop-up. Who would like to go?

The Chair: Just before they go, there's one question.

[Translation]

Mr. Bernier, you have a final question? We are running out of time, these will be the last answers for today.

Mr. Bernier: This somewhat goes along with the explanation that Mr. Godfrey asked for.

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In his presentation, Mr. Swan spoke of a possible state intervention. When the state get involved in security matters, how far can it go in the use of electronic surveillance cameras? Would you tell us also what you understand by state? Does it mean the federal government, the provincial governments, a municipal government or hospital? What do we mean by state, and what limits should the state be subject to in matters of surveillance?

[English]

The Chair: Where shall we start? Mr. Swan? Do you want legal first and civil libertarian second, or civil libertarian and then legal?

Mr. Swan: I'm trying to figure out who the horse was that was straining at the starting gate.

The Chair: Oh, don't worry, Mr. Swan.

Mr. Swan: As long as we're talking about aging thoroughbreds.

Mr. Godfrey: If I may keep the metaphor going, you were the lead on the troika.

Mr. Swan: And I play lousy poker, too.

Voices: Oh, oh.

Mr. Swan: Let me respond first to Mr. Bernier, if I may, en anglais pour préciser.

I think that here in a federal country the state has many manifestations. Certainly I would think of both the federal authorities and provincial authorities, and to the extent that provincial authorities create municipal authorities, municipal authorities as well. I have made a differentiation between surveillance by the state and surveillance by ordinary citizens.

At the same time, to respond to Mr. Godfrey, I don't see any immediate principal distinction between citizens who are corporations or are engaged in commerce and citizens who are just wandering around with a video camera. There may be differences of kind, of the degree that can be advanced, but I think the main distinction is between the authority of the state and citizens.

What the state does and why that's different has to do with the fact that it acts with legal authority, and it acts with the possibility of legal compulsion. So the state may go to a judge and ask for a warrant that permits it to do something Mr. Chenoweth can never do legally. That's why I make the distinction between the state and ordinary citizens.

The question of what the state should do should be guided by the double presumption I began with. First, we should all be free from surveillance from the state, whether we're in our bedrooms - to use a rather old restriction on the powers of the state - or we're walking in the park. The state should not be engaged in surveillance of its citizens without very good reason. It should not be using its coercive legal powers against its citizens unless it can demonstrate a proper purpose for doing so.

The second thing is that all of us should be free from surveillance when we have an expectation of privacy. If that expectation of privacy is in the bathroom, something I try to impress upon my children every morning, with very little success -

An hon. member: It happened to me.

Mr. Swan: - then all of us have that. We have it no matter what bathroom we go into. We carry it around with us. It's a personal right that we should be able to exert, not just against the state, but against anyone else too.

Finally, as to a general theory of protections against new technologies, I'm not sure my experience gives me much faith in that being possible. I'm an inductivist, and I like to see us find solutions from the problems, as opposed to finding solutions from theories.

I used to be a law professor, as was my colleague, Mr. Bobiasz. The law professor's plaint is always, well, sure it works in practice, but does it work in theory? I'd hate to see us go that second way.

The Chair: They always see grey, never see black or white.

Thank you, Mr. Swan. Mr. Skurka.

Mr. Skurka: What's described here really is the technology that's racing ahead. It's quite easy to be mesmerized by it, and, as has been suggested, it's quite easy to put your hands up and give up, and really not even put up a fight.

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We already have a model in place - I keep coming back to it - so we don't have to start from scratch. What's important is to understand that surreptitious video surveillance is a more pernicious threat to our privacy than audio surveillance ever could be and that what we need are well-defined, articulated parameters for lawful conduct as well as criminal conduct. We have to criminalize the conduct so that if we do catch the people we have an effective deterrent.

The investigation is another area. We have to speak to the chiefs of police to see if we can get them to catch up to the technology of the crooks, but that's a different issue. The point is that we have to have legislative parameters to define what's lawful and unlawful, and we simply don't have that at present.

The Chair: Thank you, Mr. Skurka.

I don't know which one of you wants to go first. Mr. Bobiasz.

Mr. Bobiasz: I'd like to speak specifically to the categories Mr. Godfrey identified.

I think you have them right, with the possible addition of one more. It's one that I hadn't had on my list, but one of the examples Steven mentioned suggests to me that we might need to look at a separate category, which is the exploitative use of improperly obtained material.

The example is the blurred video tape with people caught in compromising positions. That is one situation that I hadn't thought of, and I think it's something that should be looked at.

The Chair: Do you believe this whole issue of being able to digitize the facial characteristics and then search the crowd...? I guess Mr. Chenoweth should answer that.

As I was thinking when you were talking about the blurred face, we've been told that you can digitize the face and you can scan at the rate of 20 a second. You can locate that person in a crowd at the rate of 20 a second. That's different from a blurred face.

Mr. Bobiasz: I think it is, but it raises another issue. I think the issues there are closer to some of the issues you're going to be addressing with regard to DNA -

The Chair: I think it's Dick Tracy gone mad, frankly.

Mr. Bobiasz: - and keeping track of individuals through the use of technology, as opposed to doing bad things through video surveillance. It is probably technically feasible, but I think it's a generation away from me, anyway, in terms of when it's likely to be a practical reality.

I think it does fall under one of the categories already mentioned and it could be looked it in that context. The value of analysing this in terms of categories is that the categories imply the need for different solutions. The first category had to do with the use of such technology by government or the state, and it is probably one of the more well developed and more regulated areas now, with the possible exception of a specific offence that would apply to everybody, not just the state, when they breach the provisions.

There is a regime in place under the Criminal Code. The charter applies, as do federal and provincial legislations such as privacy acts and the like. So there is something in place now that perhaps requires some fine tuning, but that dimension of the problem has been looked at.

As for the use of this kind of technology for commercial and entrepreneurial purposes, Mr. Chenoweth suggested that the difficulty has to do with regulating the people who are using it for commercial purposes. I think there is something in that.

The difficulty there is the ability to legally regulate. A business area or profession, if you like, is more properly within the responsibility of the provinces. The federal government does get into regulation through the use of various heads of power like the criminal law power, but it usually requires something as pernicious as drugs, guns, and the like. I'm not sure that problems that could arise in this area would justify creating a regime to regulate the entire security interest in Canada.

I don't know whether you plan to consult with the provinces, but it is an area where a collective or a joint kind of response would be appropriate. In the same way in which a lot of the problems would arise through the inappropriate use, the redress in the civil courts might more properly be under torts and the like. You mentioned that British Columbia has something, and that Quebec has something in its Charter of Human Rights. Maybe a lot of the other provinces should think about making it clear that individuals who have had their privacy invaded and who have suffered damage in and of itself have an ability to injunctive relief or damages, an ability to take action.

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As for individuals using it surreptitiously, I am inclined to the solution suggested by Mr. Skurka. I think we have to focus specifically on individuals who are unconnected with the state or business or whatever, and who are committing offences.

The Chair: Thank you very much.

Mr. Chenoweth.

Mr. Chenoweth: In light of the time, Mr. Godfrey, I agree with your model. I think it's a very apt approach. I believe, based on my experience, that the three areas that the committee has looked at cannot be applied across your model. Unfortunately, it is too complicated in some of the topics that you're involved in.

I believe an extension of the current laws to video technology, as they are applied to audio surveillance, is an approach that will not work. If you get into the real-world details of the application of video technology, the disparities arise. Secondly, I would put forward to you that the current laws on audio surveillance are not working. Approximately 10% of the time when we are called in to detect or do electronic countermeasures, we discover them or discover that they were in the process of being used. And I'll tell you that the apprehension rate - the number of times that we or the police are actually able to ascertain who put them in - is less than 1%.

I'm keeping it short in a light of the time, but in terms of the point of regulation, I do note that the transportation industry, the auto industry, and a number of other industries, have certain types of regulatory controls or approaches to them. In private security, we describe our jobs as being to protect lives, property and assets. If we make a mistake, it can cost someone his life, can cost someone millions of dollars worth of property, or it can cause irreparable damage to assets. There is some level of significance to it. I think that's part of the reason why the committee is looking at this topic today.

The Chair: Mr. Bell.

Mr. Bell: I'd just like to put everything in perspective with regard to what we've done. We carried out 82 investigations in the last 11 months of this year. In 76% of those 82 investigations, we found people carrying out illegal or unauthorized activity. So out of 82 investigations, in 76% we have caught a criminal doing something illegally - stealing, whatever the case may be.

With regard to investigations into eavesdropping, we've carried out 48 investigations. Out of those 48 investigations, we discovered an immediate concern for loss of information from the particular individual in 46 instances, and in 9% overall - that's an approximation - we uncovered surreptitious devices attached to those 48 investigations. And this is one company, one department, working in one particular area of Toronto, so if you multiply this by x amount in other provinces, etc., it's an endemic situation. It's happening every single day.

The Chair: Well, I certainly thank you. It's pretty obvious that we don't have a perfect society, perfect order or perfect control. My question is what we have to give up for it, in terms of our individual and human rights and our privacy rights, if we want it. You've helped us sharpen our focus considerably today. I know it has been fascinating for our members.

I thank you for your time, and for the energy and thoughtfulness of your input. It will serve us well as we examine the next aspect, which I think will be genetic technology, the human genome, what you know on your DNA, what you should avow, what the insurance people want to know, etc. So tune in next week. Thank you very much.

The meeting is adjourned.

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