ST. Albert - A University of Alberta law professor said part of a judge's recent ruling that St. Albert RCMP breached a man’s Charter-protected privacy rights conflicts with existing case law.
Earlier this month, Court of King's Bench Justice Bob H. Aloneissi dismissed the case of Jesse Louie, who faced 12 gun- and drug-related charges following a 2021 arrest.
Louie’s lawyer successfully argued Mounties breached his Section 8 Charter rights by obtaining a search warrant using “misleading” evidence, seizing security camera footage of the accused's apartment building without a warrant, and through the unprompted disclosure of video recordings of the accused using the toilet in the detachment holding cell after not informing him of the availability of privacy screens.
U of A law professor Steven Penney said the case itself wasn't unusual, but the finding that the RCMP's seizure of security camera footage without a warrant was breach of the Charter was an interesting addition to existing case law, given an opposite ruling in a similar case in Ontario was issued in 2019.
“I think it's the most interesting legal issue in this case — one that hasn't generated a ton of case law in Alberta — and there are some conflicting authorities on that,” Penney said.
“I'm not sure that Justice Aloneissi's decision on that issue was the correct decision. I think it's debatable, and in a similar case, the Ontario Court of Appeal came to the opposite conclusion.”
The case Penney refers to involved a major Toronto Police Service (TPS) gang investigation in 2014 that ended in the arrest of 112 individuals. As part of their investigation, TPS officers obtained a warrant to install hidden cameras in the hallways of apartment buildings where suspects lived. However, officers installed more hidden cameras than authorized through initial warrants, which the accused argued was a violation of Section 8 Charter rights.
In the consensus ruling, three Ontario Court of Appeal judges ruled the unauthorized installation of hidden cameras was not a breach of the Charter because it fell outside the limits of a reasonable expectation of privacy.
“It does not follow that residents would reasonably expect to be secretly recorded by the state,” the ruling reads. “Both the fact that the camera was hidden and that it was installed and operated by police distinguish it from regular security cameras.”
“The appellants have different expectations of privacy in these different situations.”
In the St. Albert ruling, Justice Aloneissi wrote footage from security cameras installed and managed by apartment building owners or managers is used “as a shield to safeguard (the) property, not as a sword to defeat ... tenant's privacy.”
The “use of cameras does not give police carte blanche to seize and then harvest (security camera footage) by combing through it without prior judicial authorization,” Aloneissi ruled.
Penney, meanwhile, said a counter argument is that privacy rights could be maintained if police were to get the voluntary and informed consent of building managers to obtain security camera footage.
“Of course we're not talking about inside people's own residences or anything of that nature, but areas that everybody knows you're being surveilled and that there may be a reasonable expectation by residents that managers of the building would be permitted, if they choose to do so, to share that information with the police to ensure that the property is safe and secure and that people who commit crimes on that property are held accountable,” Penney said.
Aloneissi wrote in his ruling, “tenants give up some privacy to their landlord for a limited purpose, but not under the assumption that the landlord will use it or allow the state to use it for penal purposes.”
Regarding the breach of privacy Aloneissi found when St. Albert RCMP didn't inform the accused that a privacy screen could be provided in the detachment's holding cell for using the toilet, Penney said he agreed it was a “pretty significant breach.”
Penney said he wasn't familiar enough with RCMP policy to comment on whether or not Aloneissi's ruling might warrant a policy change. However, he said the detachment's reliance on single sign, not visible from inside the holding cell, to inform detainees privacy screens were available was not sufficient.
“At a minimum it was careless and sloppy and negligent for the officers at the detachment not to follow their policy and to ensure that at a minimum that detainees were informed (and) told directly (that privacy screens were available),” he said.
The Gazette has been waiting for a statement from the RCMP since June 14. K Division spokesperson Corp. Troy Savinkoff said on June 16 that a response would be provided through the RCMP's national communications group.
