In ALG Blog
Photo: Alcatraz Cells by William Warby (CC BY 2.0) http://bit.ly/1tq1W06

 

Justin Bieber is not the only person worried about police video recordings of intimate activities like using the toilet.

The practice of some police services to video record everything that everyone does while in custody has come under judicial scrutiny in the last few months. At least three provincial court judges (Mok, Chasovskikh, Deveau, King) and a Superior Court judge (Mok) held that the routine recording of detainees exposed while using the toilet in their cells is a “highly intrusive invasion of privacy.” Another Superior Court judge recently held that a lawyer was ineffective by failing to discuss evidence of a police toilet video and a possible Charter motion with his client before assisting her in pleading guilty.

The right to privacy is not extinguished in Canada just because police take a decision to arrest and hold someone in police custody. Unless there is genuine concern about the detainee, for example a high suicide risk, there is no justification to record his or her use of the toilet for posterity.

The courts have not so far thrown cases out of court altogether. Because the issue is new, judges are giving the police an opportunity to fix the problem by installing modesty screens or finding another solution. However, the police have now been repeatedly put on notice that this policy is unconstitutional.

The Bieber case bears out exactly what Justice West flagged as a real concern in Mok: the possibility that the recording will be publicly broadcast. Under any other circumstances making a video recording of someone using the toilet without their knowledge is a criminal offence. The police have been told multiple times to stop doing it. If they fail to follow this clear direction from the courts, their cases are going to get flushed.

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