The Canadian Constitution Foundation is urging Kingston Police to immediately stop using drones to monitor and record motorists inside their vehicles, arguing that the practice infringes on constitutional rights.
In a letter sent to police Chief Scott Fraser, CCF lawyer Josh Dehaas said the use of drones to peek through car windows and capture footage of drivers is a breach of Section 8 of the Canadian Charter of Rights and Freedoms, which protects against unreasonable search and seizure.
“Canadians do not give up their right to privacy simply by being in public,” Dehaas reiterated, citing the Supreme Court of Canada precedent that upholds a reasonable expectation of privacy even outside the home.
The precedent referred to by Dehaas relates to a case in which police secretly recorded a conversation between a suspected cocaine trafficker and an undercover police officer. The alleged trafficker’s lawyer successfully challenged the evidence in a voir dire—a ‘trial within a trial,’ typically relating to the admissibility of evidence—as a Section 8 breach.
As Justice Gérard La Forest wrote in R v Duarte, [1990] 1 SCR 30 “…if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance.”
Dehaas likewise described the practice of monitoring drivers with drones as a “serious infringement” on civil liberties, likening it to the “type of surveillance state that George Orwell warned about in Nineteen Eighty-Four.”
The foundation is demanding Kingston Police discontinue the program immediately and says it is prepared to pursue legal action if the practice continues.
The full letter is available on the CCF’s website.
In the letter, Dehaas further explains, “Canadians have a reasonable expectation of privacy in the activities they are undertaking inside their automobiles, including that which is displayed on their device screens, which may include deeply
personal information such as photos, text messages, and map directions.”
“They do not expect to be surreptitiously filmed at close range by a drone hovering outside their window,” Dehaas continued.
The Canadian Constitution Foundation is an independent, non-partisan registered charity that advocates for the constitutional rights and freedoms of Canadians through litigation and public education.