Canada: Privacy Concerns Continue Over Border Security Television Show

Last Updated: November 11 2013
Article by Selina Koonar

The Canada Border Services Agency (CBSA) continues to participate in a documentary television series called Border Security: Canada's Front Line that follows the regular day-to-day duties of CBSA employees. The second season has aired even after the controversies of the first season have yet to be fully resolved.

The show has been criticized for violating the Privacy Act (R.S.C., 1985, c. P-21) which prohibits government agencies from collecting or using information in ways that fall outside its legal mandate. Furthermore, the show has been criticised for filming travellers crossing Canada's border without their free and informed consent. The CBSA states that it is currently working with the Office of the Privacy Commissioner to address concerns raised over the Agency's participation in the documentary series.

CBSA's Legislative Mandate

The CBSA states the show is not a CBSA or Government of Canada initiative. It is produced, owned and financed by BST 2 Media Inc., a subsidiary of a Vancouver-based television production company called Force Four Productions Ltd. However, the government's engagement was noted when it was disclosed that Public Safety Minister, Vic Toews, had approved the release of a demo reel of the show in 2011, authorizing the CBSA to enter negotiations for a full series to be developed for broadcast in Canada. In March 2013, Public Safety Minister, Vic Toews, also publicly defended his decision to approve the show. Furthermore, while the CBSA states that it only provides Force Four with access to its facilities, the agreement between Force Four and the CBSA states that representatives of the CBSA Communications Directorate must be present during all filming. In addition, the CBSA also identifies scenarios, sites and storylines for the show, and retains the right to review and approve all rough footage. The CBSA states "it is the policy of the Government of Canada to ensure that institutions are visible, accessible and accountable to the public they serve."

The CBSA views its participation in the show as an opportunity to educate the public about its mandate and the role its officers play in ensuring Canada's safety and prosperity. The CBSA's legislative mandate, as noted by Canada Border Services Agency Act (S.C. 2005, c. 38), is "providing... border services that support national security and public safety... and facilitate the free flow of persons and goods." The CBSA's own Charter also includes a commitment to respecting individuals' privacy and confidentiality.

The B.C. Civil Liberties Association (BCCLA) believes the Canadian government should not be actively supporting and participating in an activity that so grievously violates the rights of its citizens. It takes the position that filming for the purposes of a reality TV show serves absolutely no public purpose related to the CBSA's legislative mandate. The BCCLA notes that while there is no direct financial cost to the CBSA, "the government agency's contribution in terms of staff supervising film shoots, and providing editing and review of the show is 'not insignificant.'"

As such, the BCCLA intends to file a privacy complaint if individuals have found their privacy rights violated and wish to take further action. It asks members of the public who think they may have been filmed for this TV series while at the port of entry to contact them with their stories.

Informed Consent

Additionally, the BCCLA has launched an effort to allow travellers to explicitly refuse consent for CBSA, and Force Four, to film them and to collect and use their personal information and images in the Border Security show.

The CBSA states that all participation in the series is strictly voluntary and each filming opportunity is evaluated on a case-by-case basis taking into account operational, security and safety matters as well as relevant legal restrictions. It notes that if any persons filmed, including CBSA personnel, are identifiable the production company must obtain a consent form from such persons allowing their image and/or voice to be used. The CBSA requires the production company to conceal the identity of any person identifiable in an episode who has not consented to use of footage.

However, the CBSA received criticism in March 2013 for documenting and filming the CBSA on a raid of a Vancouver construction site searching for undocumented workers. In one case, a consent form for the show was obtained only after a migrant worker was detained and was signed under great duress and confusion. In this regard, the BCCLA lodged a formal complaint with the Privacy Commissioner on behalf of a migrant worker filmed during the raid (he was later deported on March 19th, 2013). The BCCLA reports that Force Four has since agreed not to air any of the footage obtained during the raid.

Since that incident, the CBSA also has stated that it has limited the filming of inland enforcement activities to situations involving individuals wanted for "serious criminality" or those on CBSA's "most wanted" list. The CBSA further notes that Force Four will not film without permission from the CBSA. All Force Four crew members will be accompanied by a CBSA escort at all times while filming or on CBSA premises and each filming opportunity is evaluated on a case-by-case basis taking into account operational, security and safety matters as well as relevant legal restrictions.

The current method of informed consent is by way of signs posted at the BC-US border which state that a traveller's presence at the border crossing, without any objection otherwise, constitutes consent to being featured on the show. If an individual does not want to have their personal information (i.e. their image) collected for this purpose, they are still required to actively opt-out of being filmed by notifying the film crew that they do not want their images to be used in the show. The signs found at the border-crossing inform travellers that individuals will not be identifiable in the series without first giving permission:

"Please be advised that BST Media 2 Inc. is filming scenes and background material in this area, for use in a television documentary series about border security and the Canada Border Services Agency. You will not be identifiable in the series without your permission. If you are in the background while others are being filmed, or if you do not agree to be identifiable in the series, your image will be altered so you are not recognizable. If you see the crew filming in your area and do not wish to be filmed, please notify a crew member and we will accommodate you. If you don't see a camera crew, no filming is taking place."

The BCCLA takes the position that filming individuals for entertainment purposes, by government and its agents, without obtaining full and freely-given informed consent remains a grievous infringement on their right to privacy. Canadians have the right to lawfully enter and exit the country as they please, and should not be subjected to being filmed for the purposes of a reality TV show to do so. Simply being present in a location (an airport or border crossing) that you are required to be in by law (in order to enter Canada) does not constitute informed consent to be filmed for a TV show.

The Show

The show premiered in Canada on Thursday, September 6, 2012 at 9 pm. Season 2 aired on August 27, 2013 on the National Geographic Channel with a commitment of 26 new episodes. Over 11 million Canadian viewers have seen Season 1 and it is now also being aired in over 50 other countries including Australia, Denmark, Sweden, Finland and in many countries in Asia. It is based on Border Security: Australia's Front Line which is now in its 11th season.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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