What is Surveillance?
Surveillance is the collection of information on someone with or without his or her knowledge. The operative words here are ‘collection’ and ‘information’. However, in the context of tort litigation, in order to be somewhat effective, it will usually be of the surreptitious kind. The defendant will hope to observe a plaintiff doing activities that contradict what he or she is reporting. If the means of surveillance were rather rudimentary at one time, i.e. direct observation of the subject, technological developments have made them almost limitless. It extends the whole gamut of options, from tailing someone, listening in on his or her conversations, bugging a phone line, video surveillance, thermal imaging, etc. The technology exists to permit invasion of a person’s most private life as much as the life displayed in public places.
Furthermore, social networks have added a completely new layer of information over what was available previously. In the good old days, if a defendant wished to collect information on a plaintiff, he or she had to hire an investigator to follow the subject to observe and report on his or her activities. The information would typically be of the public sort, when the person was already in the public’s eye, outdoor or in places accessible to everyone. Nowadays, some people will gladly post a lot of private information online which would not normally be available to the public. Some defendants seek out that information with a clear intention of using it: Knight v. Barrett, 2008 NBQB 8; Carter v. Connors, 2009 NBQB 317; Sparks v. Dubé, 2011 NBQB 40; Lodge v. FitzGibbon, 2011 NBQB 226 para 43; Comeau v. Thomas, 2019 NBQB 187 paras 17 & 48. That information, at least the part relevant to a litigation, already has to be disclosed pursuant to Rule 31.02 of the New Brunswick Rules of Court.
For the purpose of what follows, surveillance is limited to the actions of a party directed at observing, reporting and recording the activities of another for use in litigation. The information sought is without the knowledge of the subject, as whomever suspects being watched may alter his or her behaviour, which can defeat the original goal. This paper looks at the right to do surveillance, its use and efficacy in court proceedings.
The Right to Carry Out Surveillance
Evidently, given the complexity of the technology now available, one of the first questions arising in relation to surveillance pertains to the right to record the words, images and actions of another person without his or her knowledge. If agents of the Canadian State are prohibited from carrying out “unreasonable searches or seizures” pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (R. v. Duarte,  1 SCR 30; R. v. Wong,  3 SCR 36; R. v. Tessling, 2004 SCC 67), what stops private investigators from doing the same? There are a few legislative provisions that restrict some modes of surveillance, but there is no general prohibition to that effect.
Part VI of the Criminal Code, RSC 1985, c. C-46, deals with invasions of privacy. There is, namely, a general prohibition against interception of private communications, as provided by ss. 183-184 and 193-193.1:
- In this Part,
electro-magnetic, acoustic, mechanical or other device means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing;
Intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;
183.1 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part.
- (1) Every person who, by means of any electromagnetic, acoustic, mechanical or other device, knowingly intercepts a private communication is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
- (1) If a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator of that communication or of the person intended by the originator to receive it, every person commits an offence who, without the express consent of the originator of that communication or of the person intended to receive it, knowingly
(a) uses or discloses the private communication or any part of it or the substance, meaning or purpose of it or of any part of it, or
(b) discloses the existence of the private communication.
193.1 (1) Every person who knowingly uses or discloses a radio-based telephone communication or who knowingly discloses the existence of such a communication is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction, if
(a) the originator of the communication or the person intended by the originator of the communication to receive it was in Canada when the communication was made;
(b) the communication was intercepted by means of an electromagnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator of the communication or of the person intended by the originator to receive the communication; and
(c) the person does not have the express or implied consent of the originator of the communication or of the person intended by the originator to receive the communication.
Most other provisions of Part VI are concerned with the process to authorize interceptions by police officers. This part of the Criminal Code has been held not to prevent video surveillance: Druken v. R.G. Fewer and Associates Inc. (1998), 171 Nfld & PEIR 312 (NLSC).
Other types of legislation, like the Privacy Act, RSC 1985, c. P-21, Personal Information Protection and Electronic Documents Act, SC 2000, c. 5 (PIPEDA), Right to Information and Protection of Privacy Act, SNB 2009, c. R-10.6, and Personal Health Information Privacy and Access Act, SNB 2009, c. P-7.05, deal with the collection of personal information, but they are usually limited to public authorities or commercial activities. A few months after the coming into force of PIPEDA, an Ontario Superior Court judge held it inapplicable to the activities of private investigators in insurance cases: Ferenczy v. MCI Medical Clinics Ltd (2004), 70 OR (3d) 277 (ONSC). Nevertheless, the Act was amended in 2015 by the Digital Privacy Act, SC 2015, c. 32, ss. 6(3) & 6(5), to add the following provisions to s. 7:
- (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if
(b.1) it is contained in a witness statement and the collection is necessary to assess, process or settle an insurance claim[.] […]
So, except for oral communications protected from interception by the Criminal Code, surveillance is expressly allowed under federal legislation while provincial legislation is silent on the subject matter. However, the fact that the information is collectible doesn’t make it disclosable or admissible in court proceedings.
Does Surveillance need to be disclosed?
The goal of obtaining surveillance in tort cases is usually to check on the legitimacy of a claim, or ‘assess, process or settle’ it. Courts from various jurisdictions have held that it is usually carried out in preparation for litigation and is thus privileged: Murray v. Woodstock General Hospital Trust (1988), 66 OR (2d) 129 (ONDC); Davis v. Toronto Transit Commission, 2018 ONSC 7527. However, production is required where the privilege is waived: Thorpe v. Insurance Corp. of British Columbia, 2001 BCSC 1086; Lanthier v. Volk, 2006 BCSC 2092; Huntley v. Larkin, 2007 NSSC 298; O’Scolai v. Antrajenda, 2008 ABQB 77; Chong v. Lee, 2014 BCSC 734;
In certain cases, the defendant may try to use the surveillance to challenge the credibility of a plaintiff. Of course, that is most crucial when the claim rests predominantly on the testimony of the victim. The first rule to follow is the disclosure of the information pursuant to Rule 31.02 of the New Brunswick Rules of Court, even if privileged: Imperial Oil v. Jacques, 2014 SCC 66; Iannarella v. Corbett, 2015 ONCA 110 paras 40-70; Karpowicz v. Glessing, 2018 BCSC 887 paras 29-38; Cavouras v. Moscrop, 2019 BCSC 1762; Syed v. Petrie, 2020 ONSC 664. If a privilege is claimed and not waived, then surveillance will not be allowed in evidence, except to contradict or impeach a witness or only with leave of the court: Rule 31.09; Clark v. O’Brien (1995), 146 NSR (2d) 135 (NSCA); Landolfi v. Fargione (2006), 79 OR (3d) 767 paras 38-66(ONCA); Iannarella, supra 77-107; Brundige v. Bolton, 2017 BCSC 2664; Wray v. Pereira, 2018 ONSC 4623. Where no privilege is claimed or it is waived in time, the surveillance can be introduced as any other piece of evidence.
In order to be admissible into evidence, there are three criteria that surveillance products generally have to satisfy. They were formulated as follows in the case of R. v. Creemer,  1 CCC 14 p. 22 (NSCA):
All the cases dealing with the admissibility of photographs go to show that such admissibility depends on (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; (3) their verification on oath by a person capable to do so.
Those criteria have been extended to video surveillance: Iannarella, supra para 94; Taylor v. Durkee, 2017 ONSC 7358 para 8. They apply whether the evidence is used to impeach the witness or on its own: Nemchin v. Green, 2019 ONCA 634 paras 10-12.
Surveillance evidence will not be admissible where it has no probative value. One example may be where a plaintiff claims for posttraumatic stress disorder with no apparent physical limitation but the video purports to show an ability to perform daily activities: Nemchin v. Green, 2017 ONSC 1321. It is instructive to note that, although the Ontario Court of Appeal held that the trial judge erred by excluding the video surveillance, “it was not so significant that the evidence would have affected the jury’s verdict on damages” (para 77). In another case, Lis v. Lombard Insurance Co., 2006 CanLII 21595 para 21 (ONSC), the trial judge held that “the surveillance videotape is not admissible because it is not relevant to the credibility of the witness Mrs. Lis as to whether or not she suffers chronic pain as a result of the accident”.
In New Brunswick, although there are no published court decisions dealing with the admissibility of surveillance in cases of motor vehicle accidents, such evidence has been used regularly: see Stephens v. Aviation Products Co. Ltd (1981), 34 NBR (2d) 694 (QB); Chiasson v. Thériault, 2018 NBQB 177; Matthews v. McIntyre, 2019 NBQB 127.
Efficiency of Surveillance
All that being said, it is worth noting that the usefulness of surveillance is far from being clear or consistent. Numerous judges over a long period of time have given little to no weight to such evidence: Donnelly v. Bélanger (1991), 117 NBR (2d) 393 (QB); Doucette v. Verner (1994), 154 NBR (2d) 184 (QB); Wilson v. Wilson, 1996 CanLII 12106 (NBQB); Albert v. Zellers Inc., 1998 CanLII 9832 (NBQB); Belyea v. Hammond (2000), 220 NBR (2d) 201 (QB); Debly v. Bowland (2000), 232 NBR (2d) 378 (QB); Gommer v. Lawrence, 2004 NBQB 412; McGraw v. Sullivan, 2005 NBQB 366; Tapper v. McGaghey Estate, 2005 NBQB 471; Brideau v. Fortier, 2008 NBQB 18; Guignard v. Hall, 2013 NBQB 7; Chiasson, supra; Matthews, supra. Even when a claim is dismissed, a defendant’s cost of surveillance will not necessarily be reimbursed: Stephens, supra.
Of course, it has been used more effectively in other cases (Arsenault v. Lusk (1989), 101 NBR (2d) 138 (QB); Poirier v. Bourque (1992), 128 NBR (2d) 296 (QB); Chevarie v. Williston, 1997 CanLII 9612 (NBQB); Steeves v. McLong, 2002 CanLII 34947 (NBQB); Hébert v. Boudreau, 2003 NBQB 444; Gagnon v. Black, 2005 NBQB 125; Thomas v. Hanlon, 2007 NBQB 97), but video surveillance is far from being as determinative as insurers make it to be.
This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship.