Canada: The Skies Are Watching You

Last Updated: October 20 2014
Article by Lisa R. Lifshitz

During my Arctic expedition trip to Baffin Island this summer, I was surprised to encounter a professional American filmmaker and his partner using an unmanned aerial vehicle (aka: a 'remote piloted aircraft system, an unmanned aircraft system, or simply, a drone) to capture footage of our vacation.

They had been sent to film wildlife in Canada on behalf of a U.S. travel company seeking to drum up interest since the commercial use of drones in the United States is largely banned.

Watching a rough cut of his film, I could not help but think that while the resulting sweeping aerial footage of tundra, polar bears, glaciers, and happy hikers captured by the device was brilliant, and it was reasonably acceptable to use this technology on remote islands in Nunavut, I would likely have a completely different view if he was filming me on a crowded city street in Toronto.

Drones are breaking new ground when it comes to surveillance technologies and practical applications in areas such as military aviation, scientific research, police surveillance, emergency and disaster monitoring and assistance, photography and film, as well as providing recreational fun for hobbyists. However, I question whether Canadians have fully turned their minds to the pervasive privacy implications of drones equipped with cameras, thermal imaging, and other surveillance technologies.

South of the border, the U.S. has in recent years taken a very restrictive position on the use of drones. The Federal Aviation Administration claims authority over drone operations in U.S. airspace and in 2007 banned all commercial drone uses unless special permission is granted.

Per the FAA Modernization and Reform Act of 2012, the FAA is supposed to produce regulations relating to UAVs by the end of the year, but appears to be falling behind Congressional timelines.  A near-miss between a US Airways 50-passenger flight en route to Florida and a drone in March additionally highlighted the safety concerns relating to drones.

Somewhat surprisingly, in September the FAA granted six film and TV production companies an exemption to operate drones in a commercial setting, for the purposes of "scripted, closed-set filming for the motion picture and television industry," which is only the second time the FAA has granted an exemption for commercial drone use.

Compare this to Canada, where 945 flight operation certificates for commercial drone use were approved in 2013 alone by Transport Canada, which has jurisdiction over the regulation of civil UAVs, through the Canadian Aviation Regulations, made under the Aeronautics Act.

The CAR state that commercial drone use is only permitted if: (i) the operator has received a Special Flight Operations Certificate from Transport Canada at least 20 working business days prior of the operation or as otherwise agreed with Transport Canada; or (ii) holds an Air Operator Certificate that specifically permits the use of UAVs.

Section 623.65 of the CAR mandates that applicants for SFOCs must provide considerable information to Transport Canada, including:

  • the type and purpose of the drone use (operation);
  • a complete description of the aircraft to be flown;
  • the security plan for the area(s) of operation, and security plan for the area(s) to be overflown to ensure no hazard is created to persons or property on the surface;
  • the emergency contingency plan to deal with any disaster resulting from the operation;
  • a detailed plan how the operation is to be carried out (including a clear, legible presentation of the area to be used during the operation, aerial routes, maps, location and height of obstacles, exact boundaries of the area, altitude, and routes); and,
  • other pertinent safety information.

Each application is considered on its own merits and if accepted, the minister issues certificates on a case-by-case basis. Even Transport Canada acknowledges "the regulatory structure is not in place, to support routine operations" but once an initial SFOC has been issued to a party, subsequent requests to the same entity may be expedited.

Transport Canada's main concern regarding UAVs has always been safety, not privacy.  In fact, Transport Canada has repeatedly stated that its mandate does not include addressing privacy concerns for any aviation activity, even though some UAVs may contain actual surveillance technologies, such as high-powered zoom lenses, radar, night vision, infrared, ultraviolet, thermal imaging, and LIDAR (light detection and ranging) technologies.

Interestingly, while commercial drone permission is clearly granted in Canada at a much higher rate than the U.S., both countries maintain similar rules for drones under 35 kg (77 lbs) in Canada and 55 lbs in the U.S., which are considered recreational hobbyist aircraft. The corresponding regulations in both countries are non-existent. Regardless of whether or not the drone is equipped with any photography, film, or other technologies, if it is used for a recreational purpose, it is categorized as a model aircraft and falls completely outside of the minimalist legal regime Canada (and the U.S.) has in place for UAVs.

This current state of the law is concerning, given possible (misuse) by recreational-sized camera drones, including "lateral surveillance" (citizens conducting surveillance on other citizens). The FAA south of the border intends to regulate model aircraft in the future, but Transport Canada has stated no similar mandate and is content with regulating the safety of our airspace alone.

The Office of the Privacy Commissioner of Canada has written extensively about its privacy concerns due to the emerging growth of the drone market, and has confirmed that The Personal Information Protection and Electronic Documents Act and the Privacy Act will apply to commercial and governmental drone use, respectively, although some loopholes (possibly including journalistic or artistic exemptions) remain. It is not hard to imagine the Criminal Code could also apply in many circumstances of drone misuse, though there is very little current discussion on that topic.

Outside of PIPEDA and Criminal Code sanctions, the Information and Privacy Commissioner of Ontario has implied that drone misuse by organizations or individuals could be subject to civil litigation such as that in Jones v. Tsige, in which the Ontario Court of Appeal found a new tort of "intrusion upon seclusion" to reflect the ability of individuals to use technology to seriously invade the privacy of others.

There is also some question of the possible violation of citizens' Charter rights by law enforcement agencies that use drone surveillance technologies to monitor suspected criminal activity. In R. v. Tessling, the Supreme Court of Canada found police use of a forward looking infrared camera over the accused's home was not considered a violation of the Charter s. 8 right to be free from unreasonable search and seizure.

The long line of case law, including Tessling, R. v. Edwards, R. v. Duarte, and R. v. Wong, that examines police surveillance techniques in light of s. 8, combined with the fact the RCMP has already received long-term SFOCs from Transport Canada to use drones, anticipate that constitutional litigators may be ready to challenge police drone surveillance techniques in the near future.

Presently, it is arguably difficult for Canadians to complain too loudly about existing drone usage. While the privacy commissioner has a complaint mechanism for violations against PIPEDA and the Privacy Act and can investigate alleged privacy breaches, in the absence of the ability to levy significant financial penalties for breach, the deterrent effect upon unwanted surveillance by UAVs is limited.

Moreover, how is an affected party even going to know their privacy is being violated and who is behind it? Even if an individual challenges a company alleging their privacy has been violated by the operation of a UAV, it would be challenging to produce evidence to support the complaint.

While there are restrictions on the use of drones over urban areas, and in a majority of cases SFOCs are only granted to UAVs within the visual line of sight, there are still exceptions. For UAVs that can operate outside of the controller's sight, or "beyond a visual range" as Transport Canada terms it, the potential for abuse for remotely-operated and stealthy drones remain.

To end on a personal note, since I spent most of my time kayaking rather than where my fellow passengers were shooting video (and clearly operating their drone within eyesight), there is very little actual footage of me in their film. Not an unhappy development from my perspective.

Originally published on Canadian Lawyer Online - IT Girl Column

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Lisa R. Lifshitz
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