Christine Van Geyn: Do police have the right to peer at you in your car with a drone?

National Post

9 hours ago

Can police use a drone with a zoom lens to peer into the interior of vehicles stopped at red lights? Can police enter a home's private driveway and look in the windows of vehicles? Can the government track the cellphone location data of millions of Canadians to track their movements? And can a private foreign company scour the internet collecting photos of Canadians for use in facial recognition technology that is sold to police?
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These questions are not hypotheticals; they are real live issues in Canadian law. We are living in the mass surveillance era. But many Canadians do not have a thorough understanding of how far surveillance goes, or what the limits on it are, or whether our legal protections are adequate.
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The police in Kingston, Ont., are ticketing drivers at red lights for merely touching or holding their cellphones based on evidence collected by a drone. The Supreme Court recently heard a case about police entering a private driveway and not just looking in a truck window, but opening the door and collecting evidence — all without a warrant. The Alberta Court of Kings Bench just considered a case involving the facial recognition technology of Clearview AI. During the COVID-19 pandemic, the Canadian government was tracking the cellphone location data of 33 million Canadians. After the Trudeau government invoked the Emergencies Act, the government ordered the freezing of bank accounts of a police-compiled 'blacklist' of demonstrators, which was distributed by the government to a variety of financial institutions and even lobby groups.
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What these cases are demonstrating is that we have entered the era of mass surveillance, and Canada's legal protections are inadequate.
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First, Canada's privacy legislation is outdated. Privacy Commissioner Philippe Dufresne has said we are at a ' pivotal time ' for privacy rights in Canada. Former Ontario Privacy Commissioner Dr. Ann Cavoukian has also called for updates to Canadian privacy laws, 'so they apply to all data, including anonymized data.' Much has changed since the current federal privacy legislation was drafted in the early 2000s, but efforts to modernize this law died when Parliament was prorogued.
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Second, when it comes to state intrusions, the concept of privacy may be inadequate. Section 8 of the Charter of Rights and Freedoms guarantees the right to be secure against unreasonable searches and seizures, and the Supreme Court has interpreted this right to mean the protection of a person's 'reasonable expectations of privacy' against state intrusions. The notion of 'reasonable expectations of privacy' has become a mantra in Section 8 jurisprudence. But some academics have said that in the era of mass surveillance, this guiding principle is an inadequate gatekeeper.