Privacy Law in the Policing Context - Reshmin Randhawa
Law enforcement officers are entrusted with access to confidential information about civilians, fellow officers, and high-risk police operations. Access to systems such as the Canadian Police Information Centre (CPIC) helps officers in performing their duties. However, these systems are susceptible to misuse especially when officers fail to follow protocols and standards set out by their department. Furthermore, with developing technology, privacy concerns arise with respect to the technology that is being used by police forces – including body-worn cameras (“BWCs”).
In Barlow v Ottawa Police Service[1], Constable Barlow disclosed Ottawa Police Records Management System (RMS) and Canadian Police Information Centre (CPIC) information to an Informant.[2] Constable Barlow’s conduct placed both the Informant and his colleagues at significant risk.[3] Constable Barlow failed to follow protocol on multiple occasions in his interactions with the Informant. His conduct resulted in charges under the Ontario Police Services Act for Neglect of Duty, Breach of Confidence, Insubordination and Discreditable Conduct.
On two occasions, Constable Barlow failed to concoct an adequate cover story before approaching individuals who the Informant knew. On one of these occasions, Constable Barlow approached an individual, who the Informant identified as being involved in a serious crime, without first coming up with an adequate cover story to maintain the Informant’s anonymity.[4]
On the second occasion, Constable Barlow had gone to the Informant’s home. When the Informant did not answer the knock on his door, Constable Barlow went to the Informants’ neighbor’s house looking for the Informant. He told the neighbor that he was following up on a 9-1-1 call. In both incidents, Constable Barlow failed to adequately protect the Informant’s identity and confidentiality. Furthermore, Constable Barlow’s disclosure of a high-risk police operation to the Informant put his colleagues at considerable risk.
The operation involved a takedown of an establishment where weapons could have been present.[5] At the hearing, two officers involved in the operation testified that the operation would have been aborted if they had known the confidentiality of the operation had been compromised.[6] Constable Barlow admitted that he spoke to the Informant about this operation “for entertainment purposes”.[7] Constable Barlow’s blatant disregard for protocol is unacceptable. The fact that he revealed information about a high-risk operation for entertainment purposes is even more inappropriate. The Hearing Officer ordered Constable Barlow to be dismissed from the Ottawa Police Service.[8] This dismissal was upheld on appeal. In this situation, this seems to be the only appropriate penalty. From a public interest standpoint, it is important that civilians can trust the officers who are there to protect them. It is also crucial that officers can be trusted to have access to confidential information and use that information appropriately. Additionally, there needs to be a sense of trust between officers and their colleagues for them to be able to work together.
In Nissen et al v Durham Regional Police[9], a civil trial for breach of informer privilege, the judge recognized the common law and equitable right of an informer to have their identity kept confidential.[10] The trial judge acknowledged that the common law duty not to disclose the identity of an informer may not be absolute; however an officer must make reasonable efforts to maintain confidentiality of the informer.[11] In this case, those reasonable efforts were not made. The appellant, Margaret Stack had learned about a robbery that took place in her neighborhood. She informed the Durham Regional Police Services Board. She maintained throughout her interactions with the police that she wished to remain anonymous. Margaret was frightened of the alleged robbers, whose parents were her neighbors. Margaret was reassured that her identity would remain undisclosed.
However, Margaret’s interview with the police was videotaped without her knowledge. At the end of the tape, the officer is heard saying: “[T]his is between you and I. Of course I have to keep records of this for ourselves… That stuff does not get disclosed. It is not made available to the public. You don’t have to worry about that.”[12] The robbers were subsequently charged with the robbery, and the recording of Margaret was included in the disclosure provided to them.
As a result, the family of the robber harassed Margaret and she “felt hopeless, depressed, anxious and fearful.”[13] Margaret was also diagnosed with PTSD. Ultimately, due to the on-going harassment, Margaret and her family sold their home and moved away from the neighbourhood. The Court of Appeal said that “[i]f the police decides that the witness does not deserve or warrant the requested assurance of confidentiality and anonymity, they should clearly say so and refuse to give the witness the requested assurance.”[14] This did not occur in Margaret’s situation. The Court of Appeal concluded that the bottom line is that an individual in this type of situation should be able to rely on what the police are telling them.[15] The Court of Appeal upheld the significant damages of $460,000 (plus costs).
These two cases illustrate the kinds of privacy issues that may arise in policing with respect to access to private information and confidentiality. However, the use of technology such as BWCs by law-enforcement officers gives rise to significant privacy concerns as well. BWCs are recording devices that could be found on an officer’s uniform.[16] These devices could provide recordings from an officer’s viewpoint as they go on with their daily duties.[17]
The images from BWCs are high-resolution and could “allow for a clear view of individuals and are suited to running video analytics software, such as facial recognition.”[18] BWCs could be equipped with microphones that may be able to capture conversations of bystanders as well as the individuals directly involved in the situation.[19] The recordings obtained from BWCs contain personal information given “the increasing quality of recordings and sensitivity of microphones, the images and sound captured by BWCs for the most part will be about identifiable individuals.”[20]
In addition, the use of BWCs inside homes could capture situations that are highly personal.[21] Furthermore, BWCs generate metadata, “which can include transactional information about the user, the device and the activities taking place.”[22] The use of this data and the footage from BWCs raise significant privacy concerns. Police forces should take into consideration these privacy concerns when using BWCs. However, it is important to note that with advancing technology and developments, privacy intrusions may be difficult to prevent absolutely. For example, we are constantly subject to CCTV cameras that record our every move. We have seen this around Robson Hall, where there are probably hundreds of cameras. However, most people don’t have any objections to this because we know that it is a safety measure in place to protect us.
Furthermore, many of us are on social media, where metadata is constantly collected. Therefore, it is also important to recognize the benefits of technology such as BWCs despite the privacy concerns that arise from it. That being said, it is crucial that officers who have access to BWCs use the technology with discretion and follow the protocols set out by their department.
Privacy law has a significant role in policing. Law enforcement officers have access to a lot of confidential information. This information helps them perform their duties. This information is susceptible to misuse. However, as Nissen and Barlow illustrated, officers that misuse protocols aimed at protecting privacy are reprimanded. There is no doubt that the use of certain technology by law enforcement officers raises privacy concerns – an example of this being BWCs. However, the use of this technology needs to be viewed in the larger context of public safety and performance of duties.
[1] Barlow v Ottawa Police Service, 2011 ONCPC 9 [Barlow]. [2] Ibid at para 65. [3] Ibid at para 66. [4] Ibid. [5] Ibid at para 71. [6] Ibid at para 37. [7] Ibid at para 71. [8] Ibid at para 14. [9] Nissen et al v DurhamRegional Police, 2015 ONSC 1268 [Nissen]. [10] Ibid at para 33. [11] Ibid at para 19. [12] Ibid at para 10. [13] Ibid at para 2. [14] Ibid at para 35. [15] Ibid at para 35. [16] “Guidance for the use of body-worn cameras by law enforcement authorities” (2015) at 2, online(pdf): Office of the Privacy Commissioners of Canada <https://www.priv.gc.ca/media/1984/gd_bwc_201502_e.pdf>. [17] Ibid. [18] Ibid at 3. [19] Ibid. [20] Ibid. [21] Ibid at 4. [22] Ibid at 3.
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.
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