David Loukidelis
Office of the Information and Privacy Commissioner
P.O. Box 9038
Stn Prov Govt
Victoria, B.C.
V8W 9A4

July 12, 2004

Dear Commissioner:

Re: Municipal Bylaw Investigation (OIPC File #17823)

I am writing on behalf of the B.C. Civil Liberties Association (BCCLA) to provide our submission on your investigation of municipal bylaws that require private businesses to collect personal information from customers and make that information available to police agencies.

As you note in your invitation to comment, registries of personal information collected for the purpose of monitoring legal activities are essentially surveillance databases. The BCCLA has serious concerns about municipal bylaws that mandate these databases. Canadian courts have recognized elements of privacy as part of our constitutional rights in sections 7 and 8 of the Charter of Rights and Freedoms. Our primary concerns about the breach of privacy that these types of bylaws create are that:

1. the requirement to provide a database of personal information for police agencies is constructive search and seizure without judicial oversight;

2. these bylaws are ultra vires municipal authority as they deal with criminal law;

3. the customers of the businesses that the bylaws apply to are being targeted for police monitoring and this differentiation is discriminatory.

Constructive Search and Seizure

There is no real distinction between a law allowing the police to break, enter, search and seize and a law compelling a person to provide to the police lists or information without such breaking and entering. Both constitute search and seizure.

Section 8 of the Charter of Rights and Freedoms protects everyone from unreasonable search and seizure. Our laws generally provide that judicial authorization is required for police search and seizure. This means that the police must obtain the approval of a judicial officer, normally a justice of the peace, before they proceed with a search. The police can only obtain approval for a search by satisfying a justice that they have reasonable and probable grounds for believing:

a) that an offence has been or is likely to be committed, and

b) that the evidence uncovered by the proposed search will be evidence of the offence mentioned and against the person mentioned.

Bylaws which require that certain private businesses regularly provide customers’ personal information to the police or that require that such information be given to the police merely on request circumvent the search warrant process. These bylaws provide for constructive search and seizure without judicial oversight. There is no requirement that reasonable and probable grounds exist for believing an offence has occurred before this kind of search is undertaken. Additionally, rather than being a particular search against one person for a particular offence, surveillance databases are a blanket search of many people for unknown offences. This is antithetical to the jurisprudence interpreting section 8 of the Charter.

Courts have declared that to give any meaningful protection to privacy, section 8 must be understood as preventing invasions of privacy from happening. It is axiomatic that this is accomplished by a “system of prior authorization”. A system of prior authorization balances privacy rights with the needs of law enforcement and it is this balance that section 8 is meant to achieve (R. v. Dyment, [1988] 2 S.C.R. 417). These bylaws authorize searches that are “unreasonable”.

There is also an issue of requiring business proprietors to act as agents of the police. While it is against the law for citizens to obstruct the police, there are only limited circumstances in which there is a positive duty to assist the police, such as the duty to remain at the scene of an accident. Citizens do not have a general legal duty to assist the police. Private businesses required to give their customers’ personal information to the police may be acting essentially as agents of the police against their will. There are areas where a positive duty to inform the police correctly balances privacy concerns with law enforcement, for example, the positive duty to report suspected child abuse. By contrast, the mischief that these kinds of bylaws is aimed at is not nearly pressing enough to warrant conscripting private citizens into acting as agents of police.

Ultra Vires

There is no doubt that the purpose of bylaws that require surveillance databases is to identify the use of these businesses for criminal purposes. So, for example, bylaws that require the disclosure of the personal information about pawn shop customers are to identify sources of stolen items entering the pawn shop and identifying persons who have committed a criminal act to obtain the stolen items. These bylaws are only incidentally regulating a business. The purpose of the bylaws is to assist the police in identifying criminal activity. In their pith and substance, these bylaws are criminal law and as such, outside the jurisdiction of a municipality to legislate.

In The City of Fredericton and The Re-Purchase Shop (3 December 2003), New Brunswick (N.B. Prov. Ct.) [“Fredericton”], Justice Cumming found that a bylaw which required a pawnbroker to submit reports to the police was criminal legislation and consequently unenforceable because ultra vires. Justice Cummings concluded that:

The sole purpose of this subsection [of the by-law] is to facilitate criminal investigations. Given the contents of Subsection 5(1) there can be no other conclusion. The purpose is to require pawnbrokers to act, for all intents and purposes, as agents of the police. It forces the pawnbroker to provide information to the police for the purpose of the police investigating criminal offences which would not otherwise be available to the police outside the search warrant framework. This is not an ancillary aspect of the by-law, a “side effect”, so to speak, of a valid enactment relating to property and civil rights. It is the purpose of the subsection (Fredericton at para. 12).

Canadian case law, including R. v. Morgentaler, [1993] 3 S.C.R. 463 establishes that courts can look “beyond the four corners of the document” when determining the reason why a law was enacted to determine whether, in pith and substance, it is a criminal law. Regardless of how municipalities may have framed rationales for enacting bylaws mandating surveillance databases for select businesses, it is our opinion that these bylaws are in pith and substance criminal law and therefore, within the exclusive jurisdiction of the federal government.

Discrimination

The Association of Chiefs of Police of Alberta issued a paper calling for Alberta-wide legislation to govern surveillance databases for all pawnshops. The authors of the paper note that there are numerous examples “where the identification of persons is already occurring for the public good” (identifying drivers and owners of vehicles and persons routinely videotaped at banks, ATM machines, convenience stores, etc.). Arguing that no person is required to use the services of a pawnbroker because alternatives exist, such as selling an item through the newspaper, at a garage sale or by posting the item on notice boards, the authors take the position that the citizen who has privacy concerns is not obligated to use pawn shops and therefore, the privacy implications of surveillance databases for pawnshops are negligible.

However, the problem with the alternatives cited in the paper is that they are all equally untenable for anyone who needs to sell a personal possession in order to get money quickly. That is, they aren’t alternatives at all. This kind of apologia for surveillance databases — assurance of alternatives; concession to providing notification — skirts entirely the fact that “alternatives” don’t exist for practical purposes below a certain income level. There may be no discriminatory intent in these bylaws, but there is nevertheless a discriminatory effect.

To take another case, a requirement for surveillance databases of clients and staff of escort agencies is frequently discriminatory. Ostensibly such bylaws cite an intention to protect workers as a rationale, but a surveillance database is ill suited to such a purpose and considerably more suited to deterring the legal activity in question by invading the privacy of escorts and their clients and making them fearful of public identification and shaming.

Position of the BCCLA

The BCCLA’s position is that bylaws requiring surveillance databases are unconstitutional both on the basis of breaching section 8 of the Charter by permitting unreasonable search and seizure and on the basis of being ultra vires the authority of municipalities. We are further concerned that such bylaws provide considerable scope for either discriminatory intent or discriminatory effect.

It is the BCCLA’s position that where personal information is collected in the course of a private business, that information collection must conform to privacy legislation and may not be disclosed to the police except where:

a) there is a warrant

b) there a court order

c) there is a subpoena

d) the business itself is making a criminal complaint against the customer in question.

Please do not hesitate to call us if you have any questions in regard to this submission.

Yours truly,

Micheal Vonn

Policy Director