Precedents show that courts can rule differently on matters involving video cameras and residences.

Is it a violation of the Canadian Charter of Rights and Freedoms for the police to point a video camera at your home without a search warrant?

Should the police be allowed to erect on public property a pole with a camera attached to surveil the front of a drug-trafficking suspect’s home?

Can a condo owner put a video doorbell on the outside of the unit?

If a man’s home is his castle, what is his entitlement to personal privacy and security?

Precedents shows courts can rule differently on the matter.

Duc Tung Hoang lived in a detached home in Mississauga. Under police surveillance between April and July, 2018, he was observed driving three different vehicles in connection with the trafficking of heroin, fentanyl, carfentanil and crack cocaine.

For nine days in July, 2018, the police mounted a pole camera on the street outside of his home. It captured the movement of people and vehicles in and out of the home and activities taking place in front of the property.

Individuals were observed carrying full and empty duffel bags, knapsacks, reusable shopping bags, and plastic pails.

Based on the video evidence, the police executed search warrants and seized 16 kg. of narcotics and drug paraphernalia, more than $250,000 in cash, a shotgun and ammunition.

Before his trial on numerous drug-related offences, Hoang applied under section 8 of the Charter of Rights and Freedoms to exclude evidence from the pole camera on the basis that it infringed his rights to be secure against unreasonable search and seizure.

The application judge concluded that the recordings were taken from a device on public property, did not record audio, and captured activities and traffic in front of the house which were “visible to the public eye.”

Hoang argued that he had a right to be left alone in his house, but the court did not agree, and the camera footage was admitted as evidence.

Hoang was convicted and appealed. Even if he had a subjective expectation of privacy, the Court of Appeal held that the expectation was highly diminished given the nature of the recordings. It upheld the lower court ruling that the recordings only captured what was “plain view” in front of his home, did not use any enhanced recording devices or tools, and did not capture any core biographical information.

Alan Gold, who acted for Hoang at trial and on appeal, told Law Times earlier this month that the question of the constitutionality of pole cameras is currently the most important Canadian Charter privacy issue. He pointed to numerous American cases going both ways under the Fourth Amendment to the Constitution.

Hoang was sentenced to 18 years in jail.

His case reminds me of a 2022 Alberta court decision involving Lillian Lupuliak who owned a residential condominium in Calgary. She installed a motion-activated doorbell which captured audio and video recordings of the hallway in front of her unit.

The condominium board took Lupuliak to court and succeeded in obtaining an order requiring removal of the doorbell.

I find it difficult to reconcile the Hoang decision allowing video surveillance with the Lupuliak case which ruled it unlawful.

Hoang Appeal https://www.canlii.org/en/on/onca/doc/2024/2024onca361/2024onca361.html

Lupuliak case: https://www.aaron.ca/judge-finds-unwise-use-of-smart-doorbell-in-condominium/

Lupuliak v Condominium Plan No 8211689, 2022 ABQB 65 (CanLII), <https://canlii.ca/t/jm082>