Is it legal to film people in public? Is it legal to film the police? What about recording phone calls or listening in on someone’s conversation?
Generally speaking, one may record others in public, however, there are some important legal limits. This blog will examine those limits.
Voyeurism/Invasion of Privacy
In Canada, filming someone naked or for a sexual purpose without their consent is criminal. Section 162 of the Criminal Code makes it a crime to secretly record a person where the person has a reasonable expectation of privacy in all of the following circumstances:
● where the person can be expected to be naked (e.g., changeroom, locker room or bathroom);
● where the person is in fact naked; or
● where the recording is being made for a sexual purpose.
Voyeurism requires an invasion of privacy. If a person is streaking publicly, that person has no expectation of privacy, and therefore it is legal to film that person. At the same time, Canadian courts have held that there is a reasonable expectation of privacy at a public beach and that zooming into the buttocks of women sunbathing is voyeurism.
Voyeurism carries a maximum penalty of five years in prison.
In BC, section 1 of the Privacy Act makes it unlawful to violate the privacy of another by way of a “tort”. A “tort” is a civil wrong. If someone commits a tort against you, you can sue them in civil court for a remedy. A tort is not a criminal offence. The police are not involved. The civil courts primarily provide compensation as a remedy. People found civilly liable for a tort do not go to jail.
The degree of privacy a person has depends entirely on the circumstances. For example, the privacy interest one has in their bedroom is much higher than the privacy interest one has when out in public. In R v Jarvis, 2019 SCC 10, the Supreme Court of Canada determined that finding a reasonable expectation of privacy is highly contextual, and depends on a number of factors, including:
1. the location the person was in when she was observed or recorded;
2. the nature of the impugned conduct (whether it consisted of observation or recording);
3. awareness of or consent to potential observation or recording;
4. the manner in which the observation or recording was done;
5. the subject matter or content of the observation or recording;
6. any rules, regulations or policies that governed the observation or recording in question;
7. the relationship between the person who was observed or recorded and the person who did the observing or recording;
8. the purpose for which the observation or recording was done; and
9. the personal attributes of the person who was observed or recorded.
Publishing an Intimate Image
Section 162.1 of the Criminal Code makes it a crime to publish or otherwise make available an intimate image without consent. An intimate image is defined as an image where:
1. the person is nude or engaged in explicit sexual activity;
2. had a reasonable expectation of privacy at the time of the recording; and
3. the person has a reasonable expectation of privacy at the time of publication.
This section makes it illegal to secretly record otherwise consensual sexual activity and publish it online. It was added to the Criminal Code to combat what is colloquially known as “revenge porn”. However, no proof of revenge or malice is required. Even the act of showing a video or image to one’s friend or sharing it on a private messaging application without the person’s consent is illegal. The consent of all parties depicted is required to publish an intimate image.
In several provinces, there are also provincial laws that create civil remedies for publishing an intimate image. In BC, the Intimate Images Protection Act makes it unlawful to (i) distribute an intimate image without consent and to (ii) threaten to distribute an intimate image. An individual affected may apply to the Civil Resolution Tribunal, an online civil resolution forum, for the following orders without notice to those involved:
1. To have the person refrain from distributing an intimate image.
2. To have the person destroy all copies in their control.
3. To have the person remove the image from any online platform.
4. To have the person de-index the image from any search engine.
5. To have the person pay damages.
6. To have an online platform remove the intimate image from their platform.
7. To have an online platform delete or destroy the intimate image.
8. To have an online platform de-index the intimate image from any search engine;
The Civil Resolution Tribunal can award damages up to $5,000 in favour of an applicant.
Failing to comply with an order may result in administrative penalties. For individuals, there may be a fine of $500 per day up to a maximum of $10,000; for online platforms, where the content is hosted online, there may be a fine of $5,000 per day up to a maximum of $100,000.
Filming the Police
It is not an offence to film the police but the police do not like being filmed. If you are filming the police, you must be very careful not to obstruct them in the execution of their duties. Section 129 of the Criminal Code makes it a criminal offence to obstruct a peace officer who is acting lawfully. “Peace officer” includes police officers. This means that one may be arrested if one’s filming interferes with a police officer’s lawful duties. There are only three elements to the crime of obstruction:
1. An individual obstructs a police officer.
2. The obstruction affected the officer in the lawful execution of their duty.
3. The individual who obstructed did so wilfully, knowing the officer was a peace officer and knowing that the officer was executing their lawful duties.
The maximum penalty for obstructing a peace officer is two years in prison.
A police officer may lawfully order a person who is filming to move for safety reasons. For instance, where there is a live hazard, such as a fire or a downed electrical wire, or there is an ongoing dynamic criminal investigation. A police officer may also order a person to move if they are impeding emergency response teams. Failure to move could result in the person being charged or convicted for obstruction.
Eavesdropping
Section 184 of the Criminal Code makes it a criminal offence to willfully intercept or record private communications. This section carries a maximum penalty of five years in prison.
One important exception to this offence is consent. Canada has what is commonly known as the “one-party consent” rule. This means that both parties in a communication do not have to consent to recording; only one of the two parties engaged in communication needs to provide their consent. For example, if person A and person B are having a conversation, and person A consents to recording the conversation, then the recording is not criminal even if person B did not consent.
Listening to a private conversation with ordinary human hearing and without a device is not a criminal offence. A device could be as simple as using one’s smartphone to record a call, or as complex as installing software or secret cameras.
Certain uses of a recording where the other party is unaware they are being recorded may not be allowed. Secret recordings of conversations with one’s boss are grounds for the recorder to be fired. Secret recordings of one’s spouse may not be admissible in family court. And of course, using a secret recording to force someone to do something may be extortion, which is an offence under section 346 of the Criminal Code.
If you are being investigated, or have been charged with a criminal offence call the lawyers at Filkow Law for representation and expert advice.
