Municipal by-laws and the use of residential cameras

The by-law was passed in 2010 as part of the anti-fortification response to, among other things, (biker) gang clubhouses that employed surveillance cameras for perimeter security purposes.

Hamilton’s Fortification By-Law, being a By-law to Prohibit and Regulate Fortification and Protective Elements of Land” reads:¹

(10) ” ‘excessive protective elements’ means the use, maintenance or construction of devices, objects, material components, or any contrivance designed for surveillance … and which are the following: 
c.  The application of visual surveillance equipment, including video cameras, ‘night vision’ systems, or electronic listening devices capable of permitting either stationary or scanned viewing or listening, designed or operated so as to listen or view persons or land beyond the perimeter of the land actually owned, leased or rented by the occupant, or the use of visual surveillance equipment where the exterior lenses are obstructed from view or which are employed so as to prevent observation of the direction in which they are aimed.”

Hamilton’s Fortification By-Law states that “4.  No person shall …(2) Apply, use, cause, permit or maintain excessive protective elements to or on land; or …”

This by-law effectively means that video surveillance cameras can only be used to monitor and/or record a homeowner’s land and nothing beyond its borders (i.e., property lines).  

If the by-law is contravened, then the owner or occupier of the land on which the contravention occurred can be ordered to do work to correct the contravention. The By-law does provide that contravention of its provisions can result in a fine.

Hamilton is not the only Ontario municipality to restrict the use of video surveillance cameras. There are many others.²

Supporters of this kind of by-law claim that it is necessary to “protect citizens right to privacy.” They claim that a person has a reasonable expectation of privacy even when in plain view of the public.  According to the Spectator story, Ontario’s privacy commissioner Brian Beamish “called the risk to privacy ‘particularly acute’ because street-pointed surveillance often needlessly records information about “law-abiding individuals going about their everyday activities.”

Those who oppose by-laws restricting where residential cameras can be aimed, argue that video recordings of street activity have assisted the police in their investigations (e.g., such images helped track down the murderers of Ancaster’s Tim Bosma). Recordings of street activities have also provided evidence of crimes-in-progress.

Security cameras on non-residential buildings are not affected by such by-laws but may be governed by provincial or federal privacy laws such as PIPEDA.³

Elliott Goldstein, B.A, J.D., can be reached at elgold@rogers.com.

³ See the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 and the website of the Office of the Privacy Commissioner of Canada, at www.priv.gc.ca