M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on�� on May 18, 2022.

On May 2, 2022, Canada’s privacy regulatory authorities (the Regulators) issued a����calling for a legal framework that clearly establishes the acceptable circumstances for police to use facial recognition technology (FR).

Police agencies greatly benefit from FR, because it is a useful resource for solving crimes, locating missing persons, and supporting national security objectives. However, the Regulators noted that FR involves the collection and processing of highly sensitive biometric information, which raises a series of privacy and human rights concerns when it is applied on a large scale. Widespread adoption of the technology would enable police agencies to covertly identify and surveil individuals and this may impair Canadians’ privacy right to participate in the world without being regularly identified, tracked, and monitored.

The Regulators called for Canadian legislators to implement a legal framework that outlines the boundaries associated with FR. Although Canada’s current principle-based privacy laws are adaptable to evolving technologies, the Regulators took the position that they are too high-level to address the specific risks associated with police use of FR. They argued that the current legal framework leaves much discretion to police agencies, which creates the possibility for serious harms to an individual’s privacy and other fundamental rights.��

In the joint statement, the Regulators suggested that a new legal framework should be implemented by legislators that includes the following:

• Defined Purpose and Prohibited Uses:��A clearly defined purpose for police agencies to use FR and a list of prohibited uses, i.e. “no-go zones”.
• Necessity and Proportionality:��Overarching requirements for the use of FR to be necessary and proportionate for a given objective.
• Independent Oversight:��Empowering an independent, external public body to oversee police use of FR, including requirements for police agencies to obtain authorization to launch an initiative.
• Mitigate Privacy Risks:��Privacy control measures that mitigate individuals’ risks, including controls to ensure the accuracy of information and appropriately limit data retention for police databanks.

Together with their joint statement, the Regulators released the final version of their joint privacy ��on FR use by police agencies that clarifies the agencies’ obligations under current laws. The guidance and joint statement are the product of a public consultation launched in June 2021, in which a large majority of stakeholders agreed that new legislation is required to govern police use of FR going forward.

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Andrew Wood was photographed as he was leaving the annual general meeting of , which owns Spearhead Exhibitions, a company that hosts arms trade fairs. Wood is the media officer for and Wood had purchased a single share in Reed, to enable himself to attend shareholder meetings. Reed hosted an arms trade fair that CAAT objected to.�� Therefore Wood’s attendance at the fair was considered controversial by some onlookers. While the court said that taking the photographs was not a breach of Wood’s privacy, the fact that the police retained the photos for days after the event with full knowledge that no crime had been committed, or allegation of inappropriate behaviour, was the issue before the court. Two out of the three judges deemed the retention of the photos was a breach of privacy as per

In his judgment, Lord Justice Dyson effectively articulates the core of the argument within the case:

“In my judgment the interference with the appellant’s article 8 rights was disproportionate. In deciding whether the interference is necessary, the court must have regard to the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference.”

The Court of Appeal decision extends farther than police retention of photographs. , Michael Marper recently won the right to have his DNA records that were held by the UK Government destroyed. Marper was never charged with the crime that his records were held for. In response, the UK Government plans to make legislative changes that require records be destroyed 12 years after a person is arrested but not convicted of serious violent or sexual crimes and 6 years after all other crimes. that the proposed changes do not effectively distinguish between those who are convicted, under suspicion, or completely innocent. The government also did not outline a minimum standard for the destruction of DNA profiles and samples. In the 2006 case , the Supreme Court of Canada upheld the legality of police DNA databases, which includes retroactively collecting samples.��

DNA evidence is not used just for criminal investigations, but helps police identify victims of mass disasters using hereditary information from surviving family members. Family information can also be used to convict suspects. In April 2004, a United Kingdom resident became the first person to be convicted of a crime after the police . Cases such as these no doubt raise issues of genetic privacy. Even though a common argument for people who are in favour of police retaining information about suspects later cleared of charges is that the innocent should theoretically have nothing to hide, cases such as the one described above are a clear example that a breach of privacy of one person could have implications for another. While there is some evidence of trends within families towards criminal behaviour, such arguments would be quite controversial. Clearly the heart of the controversy involves the conflict between victim’s rights and offender’s rights. Organizations such as argue that, “Victim's rights should mean far more to all of us than the rights of those who victimize,” a standpoint that would likely be hard fast to survive in court. Should DNA testing be done when suspects are charged or only after conviction? Waiting until after conviction means that often those charged with crimes who fail to appear at trial could theoretically never have their DNA put into the database. It is also doubtful that obtaining samples at the time of arrest would survive a Charter challenge in Canada.

While the debate of obtaining DNA samples from suspects is not exactly the same as the debate about police retaining photos, both issues highlight the fact that the technology age is posing a new series of concerns for privacy that are unprecedented. As information is becoming more easily accessible and quickly transferrable from one person to another, privacy rights will be an ongoing issue both here in Canada and the United Kingdom.

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