Surreptitious Little Eyes in Canadian Skies: What you don’t know about drones in Canada

 

Photograph of “The Low Light” UAV disclosed in an Access Information Request to Reem Zaia on September 27, 2014.
Photograph of “The Low Light” UAV disclosed in an Access Information Request to Reem Zaia on September 27, 2014.

They visualize, detect, measure, analyze, interpret, target, and – wait for it – they fly unattended. Many of us are familiar with unmanned aerial vehicles (UAVS), colloquially known as “drones”, and their many shapes and sizes. Very few Canadians know or would think that they serve a purpose domestically in the excusable domain we call “national security”.

But what we don’t know can’t hurt us, right?

In Canada, the RCMP and the OPP have acquired and utilize a fleet of drones regularly. If that’s not enough to keep you scrolling down the page, then consider this:

2011: The OPP uses drones to collect evidence for the first time in the context of a criminal investigation. 

2013: Newsfeeds begin to report on the OPP and RCMP’s acquisition of drone fleets

2014: An Ottawa resident wanted to know why a drone was buzzing around the neighbourhood.

2014: Access to Information documents reveal that the RCMP does not have an internal policy on the use of drones

2014: A research group in the Office of the Privacy Commissioner of Canada argues that “situational awareness’ is a policy shield used by law enforcement officials to justify the use of drones.

Today, the RCMP has 18 Canadian model drones across the country. Among many purposes, they are used for collisions, identifying potential threats, locating missing people, accident reconstruction, and major crime investigations. The RCMP is avid that it does not use drones for “fishing expeditions”.

But the trend in domestic drone purchases for law enforcement purposes provides a troublesome backdrop for existing legal parameters.

Interestingly, permission to fly a drone, for public or private uses, can only be acquired from Transport Canada.

Under the Canadian Aviation Regulations (CARs), a supplement to the Aviation Act, flying a UAV requires a special operations certificate (SFOC) from the federal Ministry of Transportation, and that includes those flown by law enforcement officials. Between 2007 and 2012, some 618 SFOCs were issued.

Despite the fact that the Privacy Act does not permit the collection of personal information unless it relates to an operating program or activity of the institution, the RCMP, not surprisingly, does not have an internal policy on the use of drones.

The RCMP publicly maintains that UAVs are not used for proactive surveillance in Canada, but their internal notes reveal that stealth is a positive attribute in the capabilities of their drone purchases.

So before we cry out in the name of civil liberties and all things privacy-related, what exactly is the fuss about?

While there appears to be no harm in a surreptitious little critter flying overhead, its information-gathering capabilities know no bounds. The type of information a drone gathers for law enforcement agencies is simply unknown.

Sadly, the Criminal Code has not been employed effectively to safeguard the use of drones in this area. While the general warrant provisions could theoretically extend to drones, they have not in practice. Warrants are, however, required to install cameras, tracking devices, and many other forms of surveillance. This begs the question: why is judicial oversight being swept under the rug?

While the effect of the Code is minimal, recent case law presents a potential silver lining. In 2014 in R v Spencer, the Supreme Court of Canada underscored, for the first time with such clarity, that the mere fact that someone leaves the privacy of their home and enters a public space doesn’t mean that they abandon their privacy rights. This marks the advent of the recognition of privacy in public – a legal pillar that has long been a point of contention in the “reasonable expectation of privacy” debate.

To date, the Privacy Act allows for the collection and disclosure of personal information without consent in accordance with any legislative act for an investigative body. Personal information can also be used “for the purpose for which it was obtained”, as per the Act.

The inference is that drones can be used to collect and disclose information without the subject’s consent for the purpose of any piece of legislation in Canada, however it is interpreted. Without statistics on SFOCs detailing flying times and information gathered, the sky is the limit – literally – for the RCMP and the OPP.

What is ostensibly harmless in Canada about drones, and yet so lethal in the war on terror, has minimal legal oversight in the criminal context.

Obtaining an SFOC is simply not good enough when the public is not aware of the specific uses of drones and there are no privacy impact assessments to scrutinize.

If warrants are not an option for the federal government in the interest of advancing “national security”, then its time for the RCMP to craft and roll out a comprehensive internal policy.

It’s simple: Canadians shouldn’t have to wait for yet another mysterious buzz hovering above before the law begins to adapt.

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