Papenbrock-Ryan v. Vancouver (City)

2024 BCSC 2288 Papenbrock-Ryan v. Vancouver (City)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Papenbrock-Ryan v. Vancouver (City), 2024 BCSC 2288 Date: 20241216 Docket: S205971 Registry: Vancouver Between: Karina Papenbrock-Ryan Plaintiff And City of Vancouver and The Chief Constable of the Vancouver Police Department Defendants And The Attorney General of British Columbia Respondent (Pursuant to the Constitutional Question Act, R.S.B.C. 1996, c.

68) Corrected Judgment: The cover page and the text of the Judgement at paragraphs 51, 68, 69, 70, 75, 76, and 77 were corrected on December 18, 2024. Before: The Honourable Justice Elwood Reasons for Judgment Counsel for the Plaintiff: J.B. Gratl T. Rauch-Davis Counsel for the Defendant, City of Vancouver: A. Aguilar J.S. Twa Counsel for the Defendant, The Chief Constable of the Vancouver Police Department: D. McKnight N. Krueger K. McGoldrick A. Nel Counsel for the Respondent, The Attorney General of British Columbia: P.D. Ameerali Place and Date of Trial: Vancouver, B.C. December 11‒15 and 14‒15, 2023 May 8‒10 and 29‒30, 2024 Place and Date of Judgment: Vancouver, B.C. December 16, 2024 Table of Contents I. INTRODUCTION.. 4 II. SUMMARY. 6 III. FACTS. 7 A. The Graffiti at the Chinese Cultural Centre. 7 B. The Public Safety Trailers. 9 C. The Deployment to the Chinese Cultural Centre. 11 D. Ms. Papenbrock-Ryan's Encounters with the Public Safety Trailer 15 IV. ANALYSIS. 18 A. Section 8 of the Charter 18 1. What was the subject matter of the alleged search?. 21 2. Did the claimant have a direct interest in the subject matter?. 23 3. Did the claimant have a subjective expectation of privacy in the subject matter?. 25 4. Was the claimant's subjective expectation of privacy objectively reasonable?. 26 5. Conclusion on s. 8 of the Charter 28 B. Section 7 of the Charter 29 C. The

Privacy Act 33 V. CONCLUSION.. 34 I. INTRODUCTION [1] Karina Papenbrock-Ryan alleges that her privacy and her rights guaranteed by ss. 7 and 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, were violated when the Vancouver Police Department ("VPD") located a mobile trailer equipped with cameras and recording equipment in her neighbourhood. [2] Ms. Papenbrock-Ryan refers to the vehicle in question as a Mass Surveillance Unit ("MSU"). The VPD call it a Public Safety Trailer ("PST"). Without picking sides, I will refer to it as a PST. [3] On April 3, 2020, the VPD deployed a PST to the sidewalk outside the Chinese Cultural Centre ("CCC") on East Pender Street in response to racist graffiti left on the windows of the CCC with threats of violence against Asian people and references to the Holocaust, Hitler and the COVID-19 pandemic. [4] The PST was clearly marked as a police vehicle. It was equipped with four cameras mounted on a pole that extended approximately 10 metres above a small mobile trailer. One camera looked into the courtyard of the CCC; two cameras looked east and west along the sidewalk on the south side of East Pender; and the fourth camera looked down at the trailer itself. [5] The VPD recorded footage captured by the cameras and stored it locally on a hard drive in the PST trailer. The system was configured to overwrite and

delete the footage after four days unless an investigating officer asked for data to be preserved. With the exception of a single screenshot, no data was preserved or reviewed from the deployment to the CCC. [6] The PST malfunctioned on a number of occasions. While it was malfunctioning, it did not record anything, including an incident in May when the trailer itself was tagged with graffiti. The VPD removed the PST on June 4, 2020. [7] Ms. Papenbrock-Ryan lives about one and a half blocks west of where the PST was located outside the CCC. She estimates that she walked through the field of view of the PST at least 10 times without knowing what it was. On June 2nd, she learned that it was equipped with cameras, and began taking a detour to avoid it because, she testified, she did not want to be surveilled by the state. [8] Ms. Papenbrock-Ryan brings this action against the Chief Constable of the VPD and the City of Vancouver alleging that, by deploying the PST without prior judicial authorization, the VPD infringed ss. 7 and 8 of the Charter and violated her privacy under the Privacy Act, R.S.B.C. 1996, c. 373. [9] Ms. Papenbrock-Ryan describes this action as a test case dealing with the rights of the public to be free from mass surveillance by means of video cameras deployed in a public place or, put differently, general video surveillance without a specific investigative

purpose. [10] Ms. Papenbrock-Ryan seeks a declaration that mass video surveillance in public places requires prior judicial authorization, and an injunction prohibiting the VPD from deploying a PST without a general warrant. She also seeks nominal damages under s. 24(1) of the Charter and/or s. 1 of the Privacy Act. [11] The defendants argue that Ms. Papenbrock-Ryan has failed to prove on a balance of probabilities that she was recorded by the cameras on the PST, and that this fact alone is dispositive of all of her claims under the Charter and the Privacy Act. [12] In the alternative, the defendants argue that there was no search or breach of privacy because the VPD were not looking for information about Ms. Papenbrock-Ryan, and Ms. Papenbrock-Ryan did not have a reasonable expectation of privacy over her image or conduct while she was in public view. [13] The defendants further argue that there is no need to consider s. 7 of the Charter because the privacy rights asserted by Ms. Papenbrock-Ryan are fully addressed by the s. 8 analysis and, in any event, the evidence falls short of establishing that her interests under s. 7 were engaged. II. SUMMARY [14] It is helpful to state at the outset what this case is not about. This case is not about continuously recorded police surveillance of public spaces. It is not about the use of new surveillance technologies like facial

recognition. It is not about the collection, use and disclosure of personal information by the VPD. These and other important privacy issues are subject to oversight and investigation by the Privacy Commissioner under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165. [15] This case is also not about targeted surveillance as part of a criminal investigation. It is not about the admissibility of video evidence at a criminal trial. These issues are governed by a well-developed body of case law under ss. 8 and 24(2) of the Charter in the criminal law context. [16] Instead, this case is a civil claim brought by Ms. Papenbrock-Ryan alleging that her Charter rights and her privacy were breached by the use of a specific law enforcement asset in a specific factual context. [17] The evidence establishes that the VPD deployed the PST to the CCC primarily as a deterrent to prevent repeat or copycat criminal activity. A secondary purpose was to reassure the Chinatown community that the VPD took seriously their concerns about pandemic-related hate crime, as well as general vandalism and property damage in the neighbourhood. [18] The VPD did not use the PST to gather evidence for the investigation into the racist graffiti on the CCC or any other investigation. The PST may have provided evidence in the event of further criminal activity at the CCC. Provided it

was working at the time, the PST may have recorded a criminal act in progress, an image of a suspect, their direction and mode of travel, etc. However, its primary purposes were to serve as a physical and psychological deterrent, and to reassure the community. [19] Ms. Papenbrock-Ryan has proven on a balance of probabilities that she walked through the field of view of the PST and it recorded her image, at least once. Any image of her, however, was deleted within four days. [20] There is no evidence that the VPD accessed, reviewed or distributed any image of Ms. Papenbrock-Ryan. There is no evidence that they attempted to identify her or used the footage of her for any other purpose. [21] I have concluded on these facts that there was no search of Ms. Papenbrock-Ryan within the meaning of s. 8 of the Charter because, based on the governing "totality of the circumstances" test, the VPD did not invade her reasonable expectation of privacy. [22] I have also considered whether the "signal" sent by the PST--"This is the VPD, and we are watching you"--deprived Ms. Papenbrock-Ryan of a liberty interest under s. 7 of the Charter. I have concluded that it did not. [23] Lastly, for many of the same reasons I found that the VPD did not conduct a search of Ms. Papenbrock-Ryan, I have concluded that the City is not liable under the Privacy Act for a violation of her privacy. III. FACTS A.

The Graffiti at the Chinese Cultural Centre [24] The CCC is located at 50 East Pender Street, in Chinatown, on land owned by the City of Vancouver. The CCC is home to a museum of Chinese-Canadian history and a Chinese language school. It also hosts programming for seniors, Tai Chi classes, health classes, cultural arts classes and other community events. [25] On April 3, 2020, at roughly 11:00 a.m. William (Bill) Kwok, Vice Chair of the Board of Directors of the CCC, discovered graffiti on six windowpanes of the David Lam Hall in the courtyard of the CCC, which read: Hong Kong These people are in effected [sic]. They should be killed and sent back to their place of birth stay out of Canada lets stop letting them come here to our beautiful Canada. They come here by the boat loads to kill our people. Lets put a stop to them coming here. If they are found here kill them on the stop [sic]. Just like Hitler did to the Jews. To stop this we need to stand strong and stop them at once. We need to kill them. Just like Hitler did to the Jews. If we did this and stood strong [sic] the program at ones [sic]. Stop letting the *s come to Canada. So they come over popalate [sic] our great beautiful motherland Canada. (the "Graffiti"; *s was a racist word for people of Chinese ancestry) [26] In early April 2020, Canada was still in the initial outbreak phase of the COVID-19 pandemic.

In British Columbia, the Minister of Public Safety and Solicitor General had declared a provincial state of emergency. In Chinatown, many stores and business were closed, and there were fewer people on the street than normal. [27] Mr. Kwok was alarmed by the threatening and racist nature of the Graffiti. He was concerned for the safety of patrons and employees of the CCC. He looked through footage from the closed-circuit security ("CCTV") cameras on the property and located footage of the person who wrote the Graffiti. He emailed photos of the Graffiti and stills of the suspect to several contacts at the City of Vancouver. [28] One of Mr. Kwok's contacts forwarded his email and attachments to several people at the VPD, including Superintendent Marcie Flamand of the North Command, which covers Chinatown. [29] The Graffiti also quickly came to the attention of Deputy Chief Constable Howard Chow. DCC Chow oversees the Operations Division of the VPD with leadership responsibility for public safety. [30] DCC Chow testified that the Graffiti incident was consistent with what he was hearing at the time from front-line officers, crime analysts and community leaders about a troubling increase in targeted crime against the Asian community following the outbreak of the pandemic. [31] The investigation into the Graffiti was led by Sergeant Valerie Spicer of the Diversity, Inclusion, and

Indigenous Relations Section ("DIIRS"). Sgt. Spicer reviewed the photographs of the Graffiti and spoke to several community members. She determined that the incident should be treated as a hate crime. [32] In the evening of April 3, Sgt. Spicer reported to Supt. Flamand and DCC Chow that the Graffiti was causing extreme fear in the Chinatown community, compounded by the fact that 80 percent of the businesses were vacant and a public perception that there was a lack of police presence. She recommended a police presence in response to the Graffiti to provide some level of reassurance to the community. [33] The public safety concerns around the Graffiti initiated a discussion within the VPD chain of command about deploying a PST to the CCC as quickly as possible. B. The Public Safety Trailers [34] PSTs are mobile trailers that contain a generator, some batteries, an electrical system, and a small computer network. The trailers have a 10-metre vertical pole or mast with four, pan-tilt-zoom cameras that stream video to the computer. The footage is stored locally on the computer. The system can be controlled remotely by way of cellular or Wi-Fi signal. Access to the system is password-restricted. [35] The VPD currently owns three PSTs. It configured the video management software in the PSTs in consultation with the Office of the Privacy Commissioner. Amongst other parameters, the VPD

set the system to record and then overwrite and delete footage after four days. The VPD does not live-monitor video footage from the PSTs. [36] The original PST ("PST #1") has four AXIS cameras. The AXIS cameras have 360-degree pan and 32 times zoom functions. The AXIS cameras do not have infrared capabilities. [37] The two newer PSTs ("PST# 2" and "PST #3") have Avigilon cameras. The Avigilon cameras are higher resolution. They also have 360-degree pan and 32 times zoom functions. They can use infrared to illuminate a target at a range of 250 metres so that objects may be seen at night. [38] The VPD does not use LiDAR (a technology for determining range using lasers) or heat detection in connection with the PSTs. The PST cameras do not have the ability to see through walls, inside buildings or vehicles or under clothing. The PSTs are not equipped with facial recognition software. The VPD has not used facial recognition software on any data from the PSTs. [39] Ms. Papenbrock-Ryan argues that the VPD has no internal policy or controls for the use of a PST which balance privacy concerns against law enforcement objectives. In my view, it is not necessary or appropriate for the Court to review internal VPD policy. However, on the evidence, I do not accept the allegation that the VPD has no internal controls with respect to the PSTs. Nor do I accept the assertion that the VPD does

not consider privacy interests when it deploys the PSTs. [40] In general, the PSTs are reserved by the VPD for significant incidents, meaning those that pose a public safety concern. DCC Chow testified that the PSTs are used sparingly because the VPD recognizes that some people believe there is an element of invasion of privacy. He testified that, in deploying a PST, the VPD strives to mitigate and minimize public privacy concerns. When a PST is deployed, he testified, it is placed in the least invasive position possible. [41] DCC Chow described a PST as a tool that the VPD uses to address public safety, including the perception of safety in public places. He testified that, when a PST is proposed as a tool to address a public safety concern, there are multiple discussions within the chain of command about its appropriateness in the circumstances. He said the considerations include whether the PST is a viable option for the desired outcome, other tools that might be more appropriate or that may need to be used in conjunction with the PST, and the overall efficacy of using the PST as a tool to ensure safety. [42] DCC Chow testified that the superintendent or inspector in charge of the district where the PST is to be deployed has the ultimate approval for a specific deployment, subject to checks and balances within the chain of command. [43] In April 2020, the VPD was in the

process of transferring PST #1 from the Organized Crime Section ("OCS") of the Investigation Division, where it was used by the Gang Crime Unit ("GCU"), to the Operations Division. [44] OCS developed a deployment checklist for the PST (the "Checklist"). The Checklist includes a requirement that the camera and recording equipment be utilized at all times, and a recommendation that the images be stored indefinitely. The Checklist also sets out a number of documentation requirements, including the rationale for the use of surveillance equipment. [45] Ms. Papenbrock-Ryan argues that the VPD failed to follow the Checklist in this case. For example, the VPD did not retain the footage and did not complete all of the documentation requirements. In my view, nothing turns in this case on whether the VPD fully completed the Checklist. [46] Inspector Rajprit Mander, who was responsible for the logistical and technical aspects of the PST deployment, explained that the VPD used the Checklist as a guideline to ensure that certain steps were considered, but not all of the items needed to be completed in every circumstance. Importantly, as quoted below, Insp. Mander documented the rationale for using the PST in this case. C. The Deployment to the Chinese Cultural Centre [47] DCC Chow testified that the decision to deploy the PST to the CCC was a fluid and dynamic process within the entire chain

of command, including Chief Palmer, ultimately resulting in an operational decision implemented by Supt. Flamand as the senior officer in charge of North District. [48] The best evidence of the rationale for the deployment is the following entry in the GO (General Occurrence) Report by Insp. Mander at 8:27 pm on April 3, 2020: Due to high risk of racially motivated property damage and theft, and to prevent business owners from taking additional measures, contrary to the Provincial and Municipal Health Order, the VPD has chosen to deploy the Public Safety Trailer as a means of deterring future property damage and break and enters. VPD is exercising their common law powers to protect life and property. The VPD believes that this pro-active approach is a beneficial investigative technique at this stage to deter any racially motivated crimes in the area and to keep the public safe. The damage to the Chinese Cultural Center is still an open investigation. [emphasis added] [49] The evidence as a whole establishes that the VPD had three objectives: a) to deter further hate crimes or additional property damage; b) to investigate any further criminal activity, if it occurred; and c) to address the community's concern about the lack of police presence. [50] Ms. Papenbrock-Ryan argues that there is no evidence PSTs are "efficacious" as a deterrent or as an investigative tool. She seeks an

adverse inference to be drawn from the fact that the VPD did not tender crime data analytics to show whether the PSTs are effective for these purposes generally, or at the CCC specifically. [51] In my view, data or empirical evidence is unnecessary for the analysis I must undertake under s. 8 of the Charter. What is relevant is that the VPD decision‑makers believed, reasonably in my view, that a PST could help prevent, or if necessary investigate, another racist incident at the CCC. [52] I accept the evidence of the decision-makers that they deployed the PST in response to a public safety concern from members of the community in the context of an increase in anti-Asian hate crime. Many local businesses were closed at the time, meaning that the VPD could not rely on the watchful eyes of the public, local merchants or property contacts from whom they normally could obtain CCTV footage. The VPD's own ability to increase officer patrols was limited by pandemic-related challenges. The PST may not have been a perfect deterrent (as evidenced by the graffiti done to the trailer itself), but it was a reasonable tool in the circumstances. [53] The VPD positioned PST #1 outside the CCC shortly after 9:00 pm on April 3, 2020. Special Constable Hearfield logged into its computer network remotely and set the field of view for each camera as described above. Once Sp. Cst. Hearfield set the

cameras, they were static throughout the deployment. [54] There is no record of exactly what was captured by the cameras on PST #1. The only evidence of the field of view of the PST is a screenshot Sp. Cst. Hearfield took from PST #3, which was deployed later as a replacement as described below, on June 2, 2020, which he testified was the same field of view as the original deployment. [55] From the screenshot, the combined field of view of the PST appears to have been approximately 40 square metres. The entrance courtyard of the CCC, with two small lion statues, is visible in the screenshot. The sidewalk on the south side of Pender Street is visible for approximately 10 metres in either direction. A small portion of the sidewalk on the north side of the street is also visible, but obscured by cars parked along Pender Street. On the screenshot, one cannot see into any windows or doors. No businesses or other institutions are recognizable except for the CCC itself. [56] On April 8, 2020, Sgt. Spicer asked Insp. Mander about the location of the PST, and whether thought had been given to placing it inside the courtyard. Insp. Mander responded: We thought about it. We wanted it to be a deterrent for the entire neighbourhood to signal we are there and watching. If we placed it inside, then only a select few may see it. It would address our local issue of that courtyard but not

necessarily our issue for the neighbourhood as a whole. [emphasis added] [57] In addition to the PST, the VPD deployed more police officers to Chinatown. The City installed fencing around the courtyard. The Park Board increased park ranger patrols on the property. The Chinatown BIA increased security patrols through the area. [58] Meanwhile, DIIRS continued their investigation of the Graffiti incident. They obtained and reviewed CCTV footage from the fixed cameras on the CCC property. They eliminated palm prints left at the scene as belonging to the suspect who wrote the Graffiti. They also conducted a canvass of CCTV cameras in the vicinity, without much success. [59] The VPD issued a media release with images of the suspect from the CCTV footage provided by the CCC. The media release ultimately resulted in an identification of the suspect. The PST was not used in the investigation. [60] On or about May 11, 2020, someone tagged the PST trailer with graffiti. The act was not captured by the PST cameras. Sp. Cst. Hearfield determined that the PST likely had not been recording since at least May 9th. On May 12th, he reset the system and confirmed that the video feed was working properly. The next day, however, it was down again. [61] On May 24, 2020, the VPD removed PST#1 to take it to the fleet yard for repairs. On May 26th, the VPD deployed PST #2 to the CCC, but discovered

that it, too, was not working. Sp. Cst. Hearfield reported to Insp. Mander that PST #2 was left in place as a "physical deterrent": We have left Camera Trailer 2 in Chinatown as a physical deterrent until we decide how to proceed with resolving the electrical issue. [emphasis added] [62] The VPD subsequently took PST #2 back to the yard for repairs as well. Insp. Mander enquired into the availability of PST #3, but learned that it was needed elsewhere for another week. At this point, there was no PST at the CCC. [63] On or about May 29, 2020, someone tagged the lions at the Millennium Gate with graffiti. The Millennium Gate spans Pender Street about one block west of the CCC, out of the field of view of where the PST had been located outside the CCC. [64] Supt. Flamand directed that a PST be moved back into the area as a result of the graffiti at the Millennium Gate. That night, the VPD positioned PST #3 outside the CCC and Sp. Cst. Hearfield set the cameras. [65] On May 30, 2020, Sgt. Spicer requested screenshots of the fields of view of the cameras so she could see what aspects of the lions in the CCC courtyard were seen by the PST. In response, Sp. Cst. Hearfield took the screenshot described above which consolidated the four views. [66] On June 4, 2020, the VPD removed PST #3 from the CCC for repairs. The VPD did not deploy any further PSTs to the CCC. [67] With the

exception of the single screenshot described above, the VPD did not bookmark, preserve, or save any footage from the deployment at the CCC. With the exception of a request for footage of the graffiti being done to the PST in May (of which there was none), Sp. Cst. Hearfield did not receive any requests for access to the footage from the deployment at the CCC. D. Ms. Papenbrock-Ryan's Encounters with the Public Safety Trailer [68] Ms. Papenbrock-Ryan lives in a condominium building on the north side of East Pender Street, near the middle of the block between Abbott Street and Carrall Street. [69] The PST was located in front of the CCC, on the sidewalk on the south side of East Pender Street, near the middle of the block between Carrall Street and Columbia Street. [70] To pass within the field of view of the PST, Ms. Papenbrock-Ryan would need to turn left out of the front door of her building and walk east along Pender Street, past Carrall Street. To pass directly under the PST, she would need to cross Pender Street and walk along the south sidewalk in front of the CCC. She may have also have passed briefly within the field of view if she stayed on the northside sidewalk. (As discussed above, a section of the northside sidewalk is visible on the screenshot, but would likely be partially obscured by parked cars.). [71] Ms. Papenbrock-Ryan first saw the PST sometime in April

2020. She testified that, during this time period, she typically left her residence one to three times per day, and she turned left out the door, heading east on Pender Street, approximately half of those times. [72] Ms. Papenbrock-Ryan estimated that she walked past the PST at least 10 times. Initially, she did not know what it was. On June 2nd, she became aware from a post on Facebook that it had cameras, and she researched its capabilities on‑line. After that, she avoided the block where the PST was located. [73] Ms. Papenbrock-Ryan was questioned about the locations she frequented that required her to walk past the PST or avoid it. She identified several possibilities: her father's residence on Water Street; her friend's residence on Cordova Street; Jack Chow Insurance; Bamboo Village; and the Vancity branch at Main and Keefer. [74] The defendants argue that Ms. Papenbrock-Ryan was not required to walk within the field of view of the PST to reach any of these destinations. [75] Some of Ms. Papenbrock-Ryan's destinations would not logically take her within the field of view of the PST. There was no reason for her to pass by the PST to reach her father's residence. Water Street, where he lives, runs parallel to Pender Street several blocks north of Pender and does not continue east past Carrall Street. She may have seen the PST when she turned north on Carrall Street toward

Water Street, but it could not see her. [76] Ms. Papenbrock-Ryan also most likely turned north on Carrall Street to reach her friend's residence on Cordova Street. If so, she would not have walked into the field of view of the PST. She also may have walked along the northside of Pender and turned north on Columbia Street. If so, she would have walked past the PST on the opposite (north) side of the street. However, there would be no reason for her to cross to the south side of Pender Street and walk directly under the PST. [77] The entrance to Jack Chow Insurance is on the northeast corner of Pender and Carrall, which was not within the field of view of the PST. Ms. Papenbrock-Ryan may have seen the PST when she walked into Jack Chow Insurance, but it could not see her. [78] Bamboo Village is on the north side of Pender Street, east of where the PST was located. To shop at Bamboo Village, Ms. Papenbrock-Ryan would have walked along the north side of Pender Street. It is unlikely she would have crossed to the south side, and then crossed back to the north side to enter Bamboo Village. [79] If the PST was operational when Ms. Papenbrock-Ryan walked along the north sidewalk on Pender Street, it may have captured her image, but the image would have been at the outer reach of the cameras' frame, for a brief moment, and it was likely partially blocked by parked cars. [80] It is most

likely that Ms. Papenbrock-Ryan walked clearly into the field of view of the PST when she walked to Vancity at Keefer and Main. It makes sense that, on her way to the bank, she would cross Pender Street and walk along the south sidewalk in front of the CCC, directly under the PST cameras. If the PST was operational, it would have captured her image coming and going. [81] It is not possible to be certain whether Ms. Papenbrock-Ryan walked through the field of view of the PST while it was operational. In a civil case, however, the court need not be certain of what happened; it is enough that there is at least a 51 percent probability that it happened: Snell v. Farrell, [1990] 2 S.C.R. 311. [82] I agree with the defendants that Ms. Papenbrock-Ryan's estimate that she walked through the field of view at least 10 times was based on the incorrect assumption that, when she could see the PST, it could see her. However, on a balance of probabilities, I find that she walked through the field of view of the PST and it recorded her image at least once. [83] There was nothing about Ms. Papenbrock-Ryan's image when she walked through the field of view of the PST that could easily identify her. She was likely wearing a COVID-19 mask, because she normally wore one in April-June 2020, even outdoors. Ms. Papenbrock-Ryan testified that she has tattoos, but she did not describe anything

distinctive about the tattoos. She did not give evidence that she wore any clothing that was particularly revealing or unusual. She did not testify that she did anything within view of the PST except walk down the sidewalk. She did not have any specific recollection of walking with other people. She did not identify any specific places that she visited except for those discussed above. [84] At most, the footage of Ms. Papenbrock-Ryan would have disclosed her gender, her general appearance, her direction of travel, her mode of travel, and the date and time when she passed by the CCC. It would not have revealed where she lives, where she works, where she was going, her religious or political beliefs, with whom she associates or any other biographical information about her. IV. ANALYSIS A. Section 8 of the Charter [85] Section 8 of the Charter guarantees "the right to be secure against unreasonable search or seizure". Its principal object is the protection of privacy, or the individual's "right to be left alone". It recognizes that personal privacy is vital to individual dignity, autonomy, and personal growth: R. v. Bykovets, 2024 SCC 6 at para. 29. [86] The right to privacy under s. 8 of the Charter applies to "people and not places." For this reason, a claimant must establish that her personal rights to privacy have been violated. It is insufficient for her to prove that another

person's rights to privacy have been violated: R. v. Edwards, [1996] 1. S.C.R. 128 at paras. 40‒41 and 45. [87] Privacy is a normative rather than descriptive concept. It aims to strike a balance between competing demands: "The community wants privacy but it also insists on protection. Safety, security, and the suppression of crime are legitimate countervailing concerns": R. v. Tessling, 2004 SCC 67 at para. 17. [88] Section 8 protects "a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state": R. v. Marakah, 2017 SCC 59 at para.

31. This includes "information which tends to reveal intimate details of the lifestyle and personal choices of the individual": Tessling at para. 25. [89] To establish a breach of s. 8, a claimant must show there was a search or seizure, and that the search or seizure was unreasonable: Bykovets at para. 30. [90] Only the first requirement--whether Ms. Papenbrock-Ryan was subject to a search--is at issue in this case. The defendants do not argue that the alleged search, if there was one, was authorized by a statutory power or a judicial authorization, the normal grounds on which law enforcement would establish that a search was reasonable. [91] A search occurs where the state invades a reasonable expectation of privacy. An expectation of privacy is reasonable where the public's interest in being left alone by the government outweighs the government's interest in intruding on the individual's privacy to advance its goals: Bykovets at para.

31. To make this determination, the court must assess the "totality of the circumstances". Four "lines of inquiry" guide the analysis: a) What was the subject matter of the alleged search? b) Did the claimant have a direct interest in the subject matter? c) Did the claimant have a subjective expectation of privacy in the subject matter? d) If so, was the claimant's subjective expectation of privacy objectively reasonable? Bykovets at para. 31; Tessling, at para. 32; Marakah, at para. 11; R. v. Spencer, 2014 SCC 43 at para. 18. [92] This case is unusual because the claim does not arise in the context of an application to exclude evidence relating to criminal charges against the party claiming the breach of their s. 8 rights. The defendants argue that, in these unusual circumstances, the Court should first determine whether the police conduct amounted to a "search" within the general meaning of that word. They argue that, as a threshold requirement, Ms. Papenbrock-Ryan should be required to establish that the police "looked for information about her". [93] The defendants draw support for this position from discussion of the meaning of the word "search" by some judges and in secondary sources. For example, in Constitutional Law of Canada, 5th ed. (Toronto: Thompson Reuters, 2021) (loose‑leaf updated 2023, release 1), Peter W. Hogg & Wade K. Wright, state at §48:1: Section 8

imposes a requirement of reasonableness on the techniques available to the police (or other agents of the state) to look for and obtain evidence of a crime (or other legal wrong). [Emphasis added.] [94] In R. v. Sandhu, 1993 CarswellBC 501 (C.A.) at para. 110, Southin J.A. in concurring reasons described a "search" as follows: 110 "Search" is a common English word. We speak of a search for a person as in a search for a child who is lost. We speak of a search for a culprit seen running from the scene of a crime and lost sight of. But in this section of the Charter, I think the word is about looking for things (and in this context I use the word "things" to include words spoken) to be used as evidence of a crime [Emphasis added.] [95] In R. v. Evans, [1996] 1 S.C.R. 8, Justice Major, concurring with the majority of the Court in that not every investigative technique is a search, said: [41] The word "search" is defined by The Oxford English Dictionary (2nd ed. 1989), vol. XIV as: "1. a. The action or an act of searching; examination or scrutiny for the purpose of finding a person or thing. ... Also, investigation of a question; effort to ascertain something." In this sense, every investigatory method used by the police will in some measure constitute a "search" " [Emphasis added.] [96] In my view, the four lines of inquiry set out above are sufficient to determine whether Ms. Papenbrock-Ryan was subject to a search within the meaning of s. 8 of the Charter. The defendants' proposed threshold requirement is unnecessary and unduly restrictive.

1. What was the subject matter of the alleged search? [97] The subject matter of an alleged search is to be defined functionally, with reference to the privacy interests at issue, not narrowly in terms of the physical acts, spaces or modalities of transmission. A guiding question is "what were the police really after?": Bykovets at para. 34; Marakah, at paras. 15, 17; see also: Spencer at paras. 22, 26; [98] The court must take a broad and functional approach by "examining the connection between the police investigative technique and the privacy interest at stake": Spencer at para.

26. The subject matter is defined, not only in terms of the information gathered, but also "the tendency of information sought to support inferences in relation to other personal information": Bykovets at para. 38; Spencer at para. 31; Marakah at para. 20. [99] However, the focus is on the information that the technology the police used can actually deliver, and not on the "theoretical capacity" of the technology: Tessling at paras. 28‒30. [100] In this case, the VPD were not investigating a crime or a suspect. What they were "really after" was not information, but rather an effect: to deter criminal behaviour and reassure the community. In this way, placing the PST outside the CCC was not unlike parking a patrol car outside a synagogue during unrest in the Middle East. The primary objective was to be seen, not to investigate. [101] As Insp. Mander explained in his email to Sgt. Spicer: "We wanted it to be a deterrent for the entire neighbourhood to signal we are there and watching." [102] The actual surveillance by the PST was confined to recording a static view of approximately 40 square metres of public space outside the CCC, which was overwritten every four days. As stated, the VPD did not monitor the video feed or preserve any of the footage. [103] In other words, the VPD did not use the PST to conduct general video surveillance of the neighbourhood. [104] The VPD might

have used footage from the PST had something happened at the CCC that required investigation. However, the one time they accessed the PST for that purpose (the May graffiti incident), it failed to provide them with any information. [105] As Ms. Papenbrock-Ryan points out, the subject matter of an alleged search is not necessarily defined according to one particular use of the information. In Bykovets, the Court found that the subject matter of the search was an IP address, not for the IP address itself, but rather as the key to obtaining more information about a particular Internet user including their online activity and, ultimately, their identity as the source of that information (paras. 41‒43). In reaching this conclusion, the Court explained: [38] This Court has never described the constitutional right to privacy according to the state's declared intention, or according to one particular use of the information. Rather, we have consistently taken a broad and functional approach to the subject matter of the search, "examining the connection between the police investigative technique and the privacy interest at stake" (Spencer, at para. 26). The subject matter is defined not only in terms of the information itself, but also "the tendency of information sought to support inferences in relation to other personal information" (para. 31) [Emphasis added] [106] Notably, however,

there was expert evidence in Bykovets explaining how an IP address can be used by law enforcement to discover a user's identity: paras. 19‒22. [107] Had the VPD used the PST for an investigation, it may have provided them with information with which to help identify a suspect using ordinary investigative techniques. However, there is no evidence that the VPD had any ability to identify pedestrians as they walked through the field of view of the PST. Nor was identification of law-abiding citizens what the police were "really after". [108] Thus, while I agree with plaintiff's counsel that the court must take a "broad and functional" approach to the subject matter of an alleged search, I do not agree that this case involves "indiscriminate untargeted mass video surveillance". [109] In my view, the subject matter of the alleged search was a temporary recording of the public space outside the CCC that could be saved and used in the event of a criminal investigation, but never was.

2. Did the claimant have a direct interest in the subject matter? [110] The courts recognize three types of privacy interests: personal privacy, territorial privacy and informational privacy: Tessling at para. 20 [111] Personal privacy protects bodily integrity and specifically "the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal": Tessling at para.

21. Personal privacy does not arise in this case. There is no evidence the PST could have recorded any details of Ms. Papenbrock-Ryan's body she might want to keep private. [112] Territorial privacy reflects a claimant's interest in places within a hierarchy, with a personal residence at the high end and a prison at the low end. This hierarchy does not contradict the underlying principle that s. 8 of the Charter protects "people, not places", but rather uses the notion of place as an analytical tool to evaluate the reasonableness of a person's expectation of privacy: Tessling at para. 22. [113] Territorial privacy arises in this case, but at the low end on the hierarchy of places. The alleged search occurred on a public street. It did not encompass Ms. Papenbrock-Ryan's home, place of employment or any of the locations she frequents in the neighbourhood. [114] Informational privacy reflects a claimant's interest in determining "for themselves when, how, and to what extent information about them is communicated to others": Tessling at para.

23. It includes at least three conceptually distinct although overlapping understandings of what privacy is: secrecy, control and anonymity: Spencer, at para. 38. [115] Anonymity permits individuals to be in public places but preserve their freedom from identification and surveillance. As Justice Binnie explained in Spencer, at para. 44: [44] The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of his or her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her in public. Thus, in order to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception of privacy (citation omitted). [116] The privacy interest in anonymity is not simply an individual's name, but also the link between the identified individual and personal information about them. In this way, privacy "protects an individual's ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to the individual's personal growth and the flourishing of an open and democratic society": Spencer at para. 48. [117] A key question in considering the use of surveillance in public spaces, therefore, is whether the information gathered removes people from the "situational landscape" and subjects

them to identification as individuals: Spencer at para. 44. [118] Informational privacy potentially arises in this case because Ms. Papenbrock-Ryan had a valid interest in preserving her anonymity as she went about her law-abiding business. However, for the reasons discussed above, the temporary image of her on the local hard drive of the PST computer did not reveal any biographical information or disclose anything that would tend to identify her or reveal details of her lifestyle or personal choices. [119] I find that Ms. Papenbrock-Ryan's interest in the subject matter of the alleged search was a territorial privacy interest at the low end on the hierarchy of places.

3. Did the claimant have a subjective expectation of privacy in the subject matter? [120] As stated, Ms. Papenbrock-Ryan testified that she did not want to be surveilled by the state. She testified that, once she learned that the PST had cameras, she believed it was recording her image and her movements, which she sought to avoid by detouring around its location. [121] The defendants argue that not wanting to be recorded is not the same thing as a subjective expectation of privacy in the subject matter of the alleged search. They argue that Ms. Papenbrock-Ryan's desire not to be surveilled by the state is "so plainly unreasonable" that the Court should find she had no subjective expectation of privacy in the subject matter of the alleged search. [122] The defendants note that Ms. Papenbrock-Ryan knew she was being recorded by CCTV cameras at Jack Chow Insurance, Bamboo Village, Vancity and likely other businesses she frequents on a regular basis. They also note that she sat for a video-recorded interview, in her home, by CTV news, and openly discussed her role as the plaintiff in this case. [123] The difference, of course, is that Ms. Papenbrock-Ryan consented to being recorded by the private businesses and CTV news. She did not consent to being recorded by the VPD. [124] While the cameras may not have had the range or some of the capabilities Ms. Papenbrock-Ryan believed, I accept her evidence that she thought the PST was recording her image and her movements, which she sincerely did not want. [125] I accept Ms. Papenbrock-Ryan's testimony as evidence that she had a subjective expectation of privacy in the subject matter of the alleged search.

4. Was the claimant's subjective expectation of privacy objectively reasonable? [126] In Tessling, the Supreme Court of Canada listed a number of factors that may be considered in determining whether the claimant's subjective expectation of privacy is objectively reasonable, not all of which will apply in every case: [4] a. the place where the alleged "search" occurred; b. whether the subject matter was in public view; c. whether the subject matter had been abandoned; d. whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of surveillance technology was itself objectively unreasonable; g. whether [the information gathered] exposed details of the claimant's lifestyle, or information of a biographical nature. Tessling at paras. 4, and 43‒62. [127] The defendants cite para. 40 of Tessling for the proposition that a person does not have a reasonable expectation of privacy over their image or conduct in public view: [40] It is true that a person can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a section of the public, or abandons in a public place (R. v. Boersma, [1994] 2 S.C.R. 488; Stillman, supra, at para. 62, per Cory J., and at para. 226, per McLachlin

J. (as she then was), dissenting; Evans, supra, at para. 50, per Major J., concurring; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 453; Dyment, supra, at p. 435; and R. v. Monney, [1999] 1 S.C.R. 652, at para. 45). [128] Paragraph 40 of Tessling is not as categorical as the defendants suggest. The cases cited by the Court do not hold that a person can never have a reasonable expectation of privacy over their image or conduct in public. That suggestion is at odds with para. 44 of Spencer quoted above: [44] The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of his or her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her in public [129] A reasonable expectation of privacy in a public space was recognized in the landmark decision by the European Court of Human Rights in Peck v. United Kingdom, (2003) 36 E.H.R.R.

41. Mr. Peck was filmed by a CCTV camera operated by the Brentwood Borough Council on a public street, moments after he had attempted to commit suicide by slashing his wrists with a knife. The Council subsequently published two photographs taken from the footage in an article about the benefits of CCTV cameras. In finding a breach of Article 8 of the European Charter of Fundamental Rights, the Court held that certain incidents which take place in public can still fall within a person's private life for which they have a reasonable expectation of privacy. [130] In R. v. Jarvis, 2019 SCC 10, the Supreme Court of Canada held that privacy is "not an all-or-nothing concept", and that being in a public space "does not automatically negate all expectations of privacy with respect to observation or recording" (at para. 41). Jarvis was a voyeurism case about a teacher who used a pen camera to surreptitiously record female students. However, it illustrates that a reasonable expectation of privacy may exist in public, depending on the nature of the recording and the activity in which a person is engaged when recorded. [131] The defendants also cite case law developed under s. 8 in the criminal law context which they submit "overwhelmingly establishes that individuals do not have a reasonable expectation of privacy over their image or conduct in public view". Again, the law is not as

categorical as the defendants suggest. [132] The analysis in the criminal cases is highly fact-dependent. I do not find it necessary to review the large number of lower court decisions cited by the defendants. [133] In R. v. Hoang, 2024 ONCA 361, the Ontario Court of Appeal accepted "as a general proposition" that surveillance of a suspect in a public space may give rise to an objective expectation of privacy, depending on the circumstances: [46] [P]ole camera surveillance could give rise to an objective expectation of privacy over the subject matter of the recording within the s. 8 Charter analysis, based on its duration, the scope and nature of its surveillance, the basis for its placement or because of other contextual or technological factors [134] Using this approach, a PST could give rise to a reasonable expectation of privacy over a person's image or conduct in public view, depending on the duration, scope and nature of its deployment, its placement or because of other contextual or technological factors. For example, a PST could record a person coming and going from a drug rehabilitation centre. It could record a revealing image of a person's body. It could capture drug use, a psychotic episode or a suicide attempt. [135] For these reasons, I would not accept as a general rule that individuals do not have a reasonable expectation of privacy over their image or conduct

in public view. [136] However, I agree with the defendants that the reasonableness of the expectation of privacy in this case cannot be decided on the basis of hypotheticals. It must be decided on the basis of the evidence. [137] As discussed, the recording in this case was a temporary image of Ms. Papenbrock-Ryan on a public street, doing nothing remarkable. [138] In the totality of the circumstances, I find that Ms. Papenbrock-Ryan's subjective expectation of privacy was not objectively reasonable.

5. Conclusion on s. 8 of the Charter [139] Ms. Papenbrock-Ryan has not demonstrated that the VPD invaded a reasonable expectation of privacy. Accordingly, I find that there was no search within the meaning of s. 8 of the Charter. It follows that the VPD is not required to demonstrate that the alleged search was reasonable. [140] Ms. Papenbrock-Ryan argues that the VPD could change the system parameters on the PST to save the recordings or use facial recognition or artificial intelligence to monitor crowds or deter behaviour that the state considers undesirable. [141] That is not this case. The evidence is that the VPD positioned the PST, set the cameras and configured the system so as to minimize the intrusion on law-abiding residents of the neighbourhood. The VPD had no intention of monitoring or deterring lawful behaviour. [142] As Tessling holds, the reasonableness line under s. 8 is not to be drawn based on the theoretical capabilities of surveillance technology, but rather by looking at the actual information that can be generated by the existing technology, and then evaluating its impact on a reasonable privacy interest (at paras. 28‒30). [143] In this case, the VPD used basic video technology, conducted a limited search of a public street, and then deleted all of the information that they collected. [144] Ms. Papenbrock-Ryan also relies on the general Charter value of a

"citizen's right to be left alone by the state". However, the focus of the normative analysis under s. 8 is on the subject matter of the alleged search and how close the information revealed lies to a person's "biographical core". Put another way, the right to be left alone is not enforced for its own sake, but rather in relation to information the alleged search may reveal and the extent to which individuals in a free and democratic society would want to maintain control of that information: R. v. Cole, 2012 SCC 53 at paras. 45‒46. [145] For these reasons, the claim under s. 8 of the Charter must be dismissed. B. Section 7 of the Charter [146] Ms. Papenbrock-Ryan argues that the VPD deprived her of liberty in a manner that is inconsistent with the principles of fundamental justice, contrary to s. 7 of the Charter. [147] The defendants argue that there is no need to consider s. 7 because this case is based fundamentally on an alleged breach of privacy. They argue that the privacy rights Ms. Papenbrock-Ryan asserts are co-extensive under ss. 7 and 8, and, as a result, there can be no breach of s. 7 if Ms. Papenbrock-Ryan did not have a reasonable expectation of privacy under s. 8. [148] Section 7 incorporates a number of rights and guarantees that find specific protection elsewhere in the Charter. In general, when both s. 7 and a specific Charter provision are pleaded, the

courts have shown a preference for analysing the issues under the specific provision. For example, in R. v. Kang, 2021 BCSC 209, Justice Ker found that s. 8 provided the proper framework to consider legislation that authorized automatic recording of telephone calls from a correctional facility, and s. 7 "adds nothing to the analysis": at paras. 40, 49; see also R. v. Van Buskirk, 2023 BCSC 2162. [149] Given that s. 8 protects a person's privacy by prohibiting unreasonable searches, and given that the s. 8 analysis addresses a particular application of the principles of fundamental justice, it is safe to say that an alleged search that passes scrutiny under s. 8 is consistent with the principles of fundamental justice: R. v. Mills, [1999] 3 S.C.R. 668 at para. 88. [150] Having found under s. 8 that there was no search because the VPD did not invade a reasonable expectation of privacy, I would not find that the same alleged search violated a s. 7 right to privacy. [151] However, in her oral submissions, Ms. Papenbrock-Ryan raised a claim under s. 7 that is not fully reliant on the alleged search. Ms. Papenbrock-Ryan argues that, regardless of whether the VPD recorded any images of her, the "signal" it broadcast with the PST violated s. 7 of the Charter. In my view, this claim is not foreclosed on by the result under s. 8. [152] To establish a breach of s. 7, Ms. Papenbrock-Ryan

must demonstrate that: a) The conduct of the VPD deprived her of a liberty interest (she does not rely on her right to life or security of the person); and b) The deprivation of her liberty was not in accordance with the principles of fundamental justice. Bakhtiari v. British Columbia (Minister of Finance), 2023 BCSC 1260 at para. 59, citing Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 [153] As discussed, the VPD deployed the PST primarily as a deterrent to prevent repeat or copycat criminal activity at the CCC. Its deterrent value lay in the message that it sent to any individuals who may have been tempted to commit further hate crimes: "This is the VPD, and we are watching you". [154] Many law-abiding citizens would have received a similar message from the PST. Some of them may have been reassured by the apparent police presence in their community. Others, like Ms. Papenbrock-Ryan, may have been concerned by the perceived invasion of their privacy. In Ms. Papenbrock-Ryan's case, she detoured around its location to avoid being recorded. [155] In other words, the "signal" sent by the PST caused Ms. Papenbrock-Ryan to alter her behaviour. I cannot say that her reaction was plainly unreasonable. Her interpretation of the "signal" was the very message that the VPD sought to send to would-be criminals and vandals. [156] The question is whether causing Ms. Papenbrock-Ryan to detour around a city block with nothing on it of any personal interest to her deprived her of a liberty interest within the meaning of s. 7 of the Charter. [157] Ms. Papenbrock-Ryan relies on R. v. Heywood, [1994] 3 S.C.R.

761. Mr. Heywood was convicted under s. 246.1(1) (now s. 271(1)) of the Criminal Code for sexual assault of a child. At the time, the conviction made him subject to s. 179(1)(b) which prevented sex offenders from "loitering in or near a school ground, playground, public park or bathing area". In the Supreme Court of Canada, the case turned primarily on the definition of the word "loiter". In finding that the provision was overly broad and violated s. 7, Justice Cory for the majority said: "There can be no question that s. 179(1)(b) restricts the liberty of those to whom it applies" (p. 789). [158] Heywood is clearly distinguishable. The law at issue in that case prohibited certain individuals from attending at places that the rest of the public was "free to roam". The VPD did not prohibit Ms. Papenbrock-Ryan from walking down East Pender Street. She made that choice of her own free will. [159] The liberty interest in s. 7 protects fundamental personal choices. It establishes an "irreducible sphere of personal autonomy", meant to protect "basic choices going to the core of what it means to enjoy individual dignity and independence": Bakhtiari at paras. 65‒67. This includes: a) Deciding whether to have an abortion: R. v. Morgentaler, [1988] 1 S.C.R. 30 at p. 166. b) An individual's response to a grievous and irremediable medical condition and the decision to seek medical

assistance in dying: Carter v. Canada (Attorney General), 2015 SCC 5 at paras. 64‒66. c) Fundamental decisions regarding the choice of medical treatment for one's children: B.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at pp. 368‒374. d) Whether to see a therapist in connection with a sexual assault: R. v. O'Connor, [1995] 4 S.C.R. 411 at para. 115. e) Temporary shelter from the elements for a person who is homeless where there is no good alternative: Victoria (City) v. Adams, 2009 BCCA 563 at paras. 102‒109. [160] A choice between walking the most direct route to one's destination, and possibly being recorded by the police, and taking a relatively short detour, and not being recorded, does not belong in this category. It is not a fundamental personal choice. It is not a decision on a matter that is critical to Ms. Papenbrock-Ryan's dignity, autonomy or independence. [161] I find that the VPD did not deprive Ms. Papenbrock-Ryan of a liberty interest within the meaning of s. 7 of the Charter. It is therefore unnecessary to consider whether the conduct of the VPD was in accordance with the principles of fundamental justice. The claim under s. 7 must also be dismissed. C. The Privacy Act [162] The Privacy Act creates a statutory tort for violating the privacy of another. s. 1 provides: Violation of privacy actionable 1 (1) 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. (2) 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 other. (3) In determining whether the act or conduct or a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties. (4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass. [163] As Peck demonstrates, a violation of privacy, if was to occur as a result of a PST recording, would not be as a result of the recording itself, but rather from the publication or disclosure of certain information about a person without their consent or at least ensuring as far as possible that their identity is masked. [164] In this case, any recording of Ms. Papenbrock-Ryan was an image of her on a public street, doing nothing remarkable. The VPD did not access, distribute or publish any images of Ms. Papenbrock-Ryan. There was, and remains, no risk of disclosing any personal information about her. [165] I find that the VPD did not commit the tort under s. 1 of the Privacy

Act. [166] In the circumstances, it is not necessary to consider the defences pleaded by the defendants under s. 2 of the Privacy Act. V. CONCLUSION [167] The action is dismissed. [168] The parties may speak to costs by making the necessary arrangements through trial scheduling. [169] I am grateful to Ms. Papenbrock-Ryan and her counsel for brining the issues in this case forward. I am grateful to all counsel for their excellent written and oral submissions. "Elwood J."