Volume 1, number 2

Law
Surveillance cameras: accused are better protected than employees

To do camera surveillance of a person suspected of committing a crime, police must have a court warrant. But there is no restriction on camera surveillance of employees by their employer outside the workplace. "The rights of criminal suspects are protected better by the charter than the rights of employees, especially employees of a private company," notes Louise Viau, a professor in the Faculty of Law at Université de Montréal.

Ms. Viau compared two judgments that established jurisprudence on the question. The first involved police surveillance of persons suspected of engaging in games of chance, while the second dealt with surveillance of a worker on sick leave. The first case, dubbed the "Wong Affair," occurred in Ontario, and went as far as the Supreme Court. In 1990, the Court determined that video surveillance is tantamount to a search, and therefore violated the clause of the Canadian Charter of Rights and Freedoms protecting individuals against unreasonable search and seizure. A warrant is thus needed before this kind of surveillance can be carried out, as is the case for wire tapping. The Criminal Code was amended in accordance with this ruling in 1993. However, despite the legal void, the proof was accepted because the police had acted "in good faith."

The Court of Appeal of Quebec was then presented with the case of an employee who was fired after his employer demonstrated that he had produced false statements about his state of health. Video pictures taken by a private detective agency showed him making movements he said he was incapable of making. The Court had to determine whether this procedure violated his right to privacy, which is protected by the Quebec Charter of Human Rights and Freedoms. The judgment that was handed down in 1999 recognized that this procedure, while apparently violating his privacy, was admissible because it was "justified by rational arguments" and "conducted with reasonable means." "The Court of Appeal thus weakened a right guaranteed by both the Quebec Charter and the Civil Code," Louise Viau notes. "The right to privacy is only protected against unreasonable violation." The professor therefore believes that there is a double standard, depending on whether a criminal or civil case is involved, as well as which charter is invoked.

Researcher : Louise Viau
Phone : (514) 343-6127

DNA proofs: Canada has one of the best laws

In the United States, no fewer than 76 individuals who had been condemned to death have been declared innocent since 1987 thanks to their genetic profiles. Many of them had spent more than 15 years on death row. Illinois, which is responsible for 13 of the 76 legal errors, decreed a moratorium on executions in order to do systematic proofs of genetic identification.

In Canada, the most notorious case is David Milgaard in Saskatchewan, who spent 25 years in prison for rape and murder before being acquitted by a DNA check. Better late than never… "Canada has one of the most complete laws on DNA proof and is ahead of European countries such as France and Belgium," notes Marie Angèle Grimaud, a researcher at the Center for Research into Public Law at Université de Montréal. Ms. Grimaud devoted her doctorate to this question, focussing on the problem of the legitimacy of samples of bodily substances.
In her view, the situation has not always been so positive. At the time when she began her research (under the direction of professors Bartha Maria Knoppers and Pierre Béliveau), there was no law on DNA proof in Canada. "The first case where a DNA proof was presented before the courts goes back to 1998, but at that time there were no guidelines for taking samples of bodily substances. Several other cases have followed, and the genetic imprint was accepted as an element of proof on the basis of its relevance alone. In 1994 the Supreme Court ruled that in the absence of a law, samples had to be given freely. "Free and informed consent was necessary, since the genetic imprint yields a lot of information-much more intimate information than fingerprints. You can find out a person's ancestry or his susceptibility to certain diseases. With this kind of information, every aspect of a person's privacy rather than just his physical integrity is threatened, and in the absence of legislation, the individual's dignity was not protected."

Under the present Act, samples of bodily substances are only authorized for certain crimes, such as sexual crimes, murders, kidnappings, assaults, robberies with violence or impaired driving causing injury or death. Any person who is found guilty of one of the these designated crimes must allow a sample of bodily substances to be taken to establish the genetic imprint insofar as the effect on his privacy is not "clearly out of proportion to the public interest."

Researcher : Marie Angèle Grimaud
Phone : (514) 343-2138
Director : Bartha Maria Knoppers
Phone : (514) 343-6714