Surveillance evidence in BC: when it holds up

A client calls with video on a phone and the same sentence every time: we have him on camera. Sometimes that is exactly right. Often it is the start of a much longer conversation, because a video file is not a finding. It is an exhibit somebody will have to explain — where it came from, who held it, what was happening on either side of the clip, and why it was collected at all.

The uncomfortable part is that almost none of what determines the answer is in the footage. It is in the record built around the footage, and that record is either created contemporaneously or it is not created at all — the attempt to reconstruct it afterwards is itself something opposing counsel will make a great deal of.

This article is about that surrounding record. It is general information about British Columbia law, not legal advice.

The thing nobody can promise you

No firm can tell you that material will be admitted. Admissibility is decided by the decision-maker hearing the matter — a judge, an arbitrator, a tribunal member — on the record in front of them, applying rules and discretion that belong to them and not to us. Any investigator who guarantees admissibility has told you something useful about the investigator.

What can be controlled is everything upstream of that decision. A decision-maker weighing whether to rely on a recording asks the same small set of practical questions every time. Is this the whole of what was recorded, or a selection? Who can speak to how it was obtained? Was it altered, and how would we know? And, increasingly in this province, should it have been collected at all?

Work that answers those questions in advance survives challenge. Work that leaves them to memory, a year and a half later, usually does not — not because the footage was wrong, but because nobody can any longer say with confidence what it is.

The question that comes before the camera

In British Columbia, the lawfulness of the collection is not a footnote to the evidence discussion. It is frequently the whole of it.

BC's Privacy Act creates a statutory tort. Section 1(1) provides that "it is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another." Two features of that sentence do more work than people expect. Actionable without proof of damage means a person does not have to show they lost anything; the violation is the cause of action. And wilfully and without a claim of right is the standard the conduct is measured against — which is why the reasoning recorded at the outset of an assignment, about why this collection was thought justified, is not paperwork. It is the substance of the defence.

Section 1(2) sets the measure: "the nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others." That is a balancing test, not a location test. It does not say a person has no privacy interest outdoors, and it does not say a business's interest in answering a question automatically outweighs the interest on the other side. Both go on the scale.

Section 1(4) closes the gap most people assume exists: "without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass." Staying on the public side of the property line does not settle the question. Trespass is one way to violate privacy; the Act is explicit that it is not the only way. Section 2 sets out the exceptions, including consent and conduct authorized by law.

The full statutory picture — what a licensed BC investigator may and may not do, section by section — is set out in what a BC private investigator can and cannot legally do. This article assumes those limits and deals with what happens to lawfully gathered material afterwards.

Proportionality, in the form a tribunal actually asks it

The reasonableness test in s.1(2) turns, in practice, into a single question worth writing at the top of every file: was this the least intrusive method that could have answered the question actually being asked? It has three parts, and each is a place where files come apart.

Was there a defined question? "Find out what he is up to" is not a question; it is an open mandate, and an open mandate cannot be proportionate to anything because there is nothing to weigh it against. "Is this person performing physical work inconsistent with the restrictions in the claim" is a question. It has a boundary, a stopping point, and an answer. It is also the version that can be scoped and estimated, which is why the cost of an investigation and its defensibility move together rather than in opposition.

Was something less intrusive tried first? Records and open-source enquiry, a direct request, an interview, a documented internal process — where one of these could have answered the question, going straight to observation is hard to defend later. Where they were tried and did not answer it, that attempt is part of the record and should be dated.

Was the collection bounded to the question? Observation that keeps running after the question has been answered, or that sweeps in family members or activity unrelated to the mandate, is collection nobody asked for. It carries risk without carrying value.

A file that can answer those three in writing, from notes made at the time, is in a different position from one where the answers must be assembled after a demand letter arrives.

What surrounds the footage

Assume the collection was lawful and proportionate. Four things now make the material usable, none of which are the video.

Continuity of the record. The original material, unedited, from the device it was captured on, with its metadata intact — plus a documented path from that device to wherever it now sits: every transfer, every copy, every person who had it. The common failure is not tampering. It is that the original was replaced by an export, the export by a clip, and the clip by a version trimmed for a meeting, until nobody can produce what the camera actually recorded. When the challenge comes, "this is the relevant part" is much weaker than "this is all of it, and here is where the relevant part sits within it."

Contemporaneous notes. A log written as the work happens — times, locations, conditions, what was observed, what was not, when observation started and stopped, and the gaps. Notes written afterwards are recollection dressed as record, and the difference is visible to anyone who does this for a living. Contemporaneous notes are what let their author say, years later, not just that something happened but how they know.

A person who can speak to it. Material has to be introduced by someone who can describe what they did and when, be questioned on it, and not contradict their own notes. If the work was done by someone unavailable, or unable to explain their own file, the footage arrives with nobody behind it.

A report that separates observation from inference. "The subject lifted a box from the truck bed and carried it the length of the driveway" is an observation. "The subject is not injured" is an inference, and one belonging to a medical opinion rather than to us. Files lose credibility when the two are blended: once a decision-maker finds one conclusion overstated, they begin discounting the observations too — and the observations were the part with real value.

When footage becomes its own problem

Three patterns account for most of the cases where material collected to help a party ends up harming them.

The gap in the middle. Coverage that runs, stops without explanation, and resumes invites the question of what happened in between. An honestly logged break — reason and time — is a normal feature of a real record. An unexplained discontinuity in a file presented as complete is what the cross-examination gets built around.

The edited highlight. A compilation assembled to be persuasive, presented without its source material, is the most common way to convert good work into a credibility problem.

The collection nobody can justify. Material gathered without a defined purpose, or continued long past the point where the purpose was served, creates exposure under the Privacy Act that can exceed whatever the file was worth — the scenario where a client wins the factual point and loses more than they gained. It is why we decline assignments that cannot state what decision the result is meant to support.

The obligations that begin once you have it

Collection is the start of the handling duty, not the end of it. Where the subject is an employee, BC's Personal Information Protection Act governs the collection (s.13), use (s.16) and disclosure (s.19) of employee personal information for purposes reasonably required to establish, manage or terminate the employment relationship — each carrying a duty to notify the individual about what is being handled and why. The sequence in which that notification happens is frequently what separates an investigation that supports a decision from one that becomes a second dispute.

Section 34 requires an organization to "protect personal information in its custody or under its control by making reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification or disposal or similar risks." Surveillance material is precisely that: personal information, often about several people, sitting on somebody's drive. Section 35 runs in both directions — information used to make a decision that directly affects an individual must be kept at least a year so the individual has a reasonable opportunity to obtain access to it, and documents containing personal information must be destroyed or de-identified once it is reasonable to assume the collection purpose is no longer served and retention is no longer necessary for legal or business purposes.

Between them, those provisions mean "we still have it somewhere" is not a neutral state. Fixed-site camera systems raise the same questions in a different shape, covered in what BC privacy law means for camera coverage and masking.

What to ask before anyone starts recording

• What is the question, in one sentence, and what decision does the answer support?
• What less intrusive method could answer it, and why was it rejected?
• How will the original material be preserved, and who will hold it?
• What notes will be kept, when, and by whom?
• Who will be available to speak to the work if the matter proceeds?
• Where will the material live, how is it secured, and when is it destroyed?

A firm that has thought about evidence answers all six without pausing.

Frequently asked questions

Is surveillance footage automatically admissible if it was legally obtained?

No. Lawful collection is necessary but not sufficient. The decision-maker still weighs relevance, reliability, continuity, and whether the material is what it is said to be. Lawful collection mainly removes one category of objection.

Does staying on public property make surveillance lawful?

Not by itself. Privacy Act s.1(4) states that privacy may be violated by surveillance "whether or not accomplished by trespass", and s.1(2) measures privacy by what is reasonable in the circumstances. Where the investigator stands is one fact among several, not the answer.

Can we just use the clip rather than the full recording?

You can, and it is usually a mistake. An excerpt produced without its source invites the argument that the excerpt was chosen. Keep the original intact and identify where within it the relevant passage sits.

What if the surveillance found nothing?

That is a result: on these dates, during these hours, the activity in question was not observed. A documented absence is evidence about the period covered, not a failed assignment.

If you are weighing whether to collect

The useful conversation starts with the decision you need to make, not the technique you have in mind. From there it is possible to work out what may lawfully be collected, what would answer the question with the least intrusion, and what the record has to look like for the result to be worth having. Guard Nation holds a private investigator licence in British Columbia; the number is in the footer of this page.

Sources

• Privacy Act, RSBC 1996, c. 373, s.1 (violation of privacy actionable without proof of damage), s.1(1), s.1(2) (reasonable in the circumstances), s.1(4) (surveillance, with or without trespass), s.2 (exceptions) — https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96373_01
• Personal Information Protection Act, SBC 2003, c. 63, s.13 (collection of employee personal information), s.16 (use), s.19 (disclosure), s.34 (protection of personal information), s.35 (retention and destruction) — https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03063_01

Admissibility is governed by evidence law and by the procedural rules of the particular court or tribunal hearing the matter. Nothing above states or paraphrases those rules; what is described here is documentation practice, not the law of evidence. This article is general information about British Columbia law, not legal advice. For advice on a specific matter, consult a lawyer.