Charter Rights and Vancouver’s BarWatch Program
In the recent British Columbia Supreme Court decision R. v. Roudiani, the accused was charged with aggravated assault arising from an incident near the intersection of Granville and Smithe Streets in Vancouver – the heart of the Granville Entertainment District. Mr. Roudiani was ultimately acquitted and those reasons can be read in full here. Mr. Roudiani was successfully defended by a friend of Alcohol & Advocacy – Mr. Joven Narwal.
Of interest to readers of Alcohol & Advocacy is the unreported decision of Mr. Justice N. Smith on a voir dire relating to the admissibility of BarWatch records at trial. Mr. Roudiani asserted that the use of this information gathered by the police during its investigation was a breach of his Charter right to be free from unreasonable search and seizure.
The incident occurred at a location close to a number of nightclubs and bars that participate in Vancouver’s BarWatch program. BarWatch operates by requiring that individuals who wish to enter a participating establishment have their photograph taken and identification cards scanned. That information is then temporarily stored in an electronic database. One purpose of the system is to match this information against a list of individuals who have been barred from entering participating establishments. By accessing the data at Studio Nightclub, police were able to compare the nightclub’s photograph of the accused with the alleged assailant shown on other surveillance video. Crucially, the BarWatch photograph of the accused was attached to his name – information not otherwise known to police.
The accused asserted that in obtaining this information, without a warrant, the police had violated his Charter rights.
On the voir dire the accused did not object to the admissibility of surveillance videos obtained by the police showing someone, who was alleged to have been, him on the street. The objection was to the Crown’s use of a photograph of him, associated with his name and age, that they obtained from the Studio Nightclub. Defence counsel submitted that the police should have obtained judicial authorization (a search warrant) before requesting that the nightclub turn over its BarWatch records from the night in question.
The issue before the Court was this: did the accused have a privacy interest in his BarWatch records sufficient to attract protection from s.8 of the Charter?
To claim s.8 protection a claimant must first establish a “reasonable expectation of privacy” in the subject matter. The person must demonstrate they subjectively expected the information would remain private, and that this expectation was objectively reasonable in all the circumstances.
The Crown’s position was that the information obtained by police from the participating BarWatch establishment consisted solely of a name and a photograph of a person who attended a publicly accessible nightclub, and that no further inferences about the accused person’s lifestyle or choices could be drawn from that information standing alone. Crown submitted that individuals routinely given their names to a wide variety of people and businesses for countless reasons and that this does not always engage a reasonable expectation of privacy.
The Court observed that this informational transaction must be viewed in the context of the other information gathered at or around the same time. Here, in addition to the photograph of the accused, the police had surveillance footage taken on the street. When the photographic information is paired with surveillance footage, the police had a reasonably complete picture of the accused person’s movements and whereabouts for approximately two hours.
Thus, the information must be seen not only as a name, but a name, connected with a photo, which can then be tied to otherwise anonymous video surveillance of the street. It is this combination that gives the BarWatch information particular significance.
A person’s name is clearly personal information in which a person has an interest, although it is routinely disclosed without hesitation in a variety of social and commercial interactions. In most situations, there is always the option of not disclosing it, even if that means choosing not to proceed with a particular transaction.
When patrons enter a nightclub and are processed through BarWatch, or some similar program, the Court observed that to the extent patrons give the matter any thought at all, there would likely be a wide variety of subjective expectations and understandings of the process. Some might see the identification procedure as part of a private transaction for the limited purpose of verifying they are of legal drinking age or that they had not previously been barred from the establishment. Others would see it as part of a bona fide safety and security system and understand that the database may be used in the investigation of an incident on the premises should one occur.
The Court observed that there was no evidence of posted signage in the nightclub informing customers about how the information collected by BarWatch could be used.
Ultimately the Court concluded that the police had violated the accused’s Charter rights by obtaining the BarWatch data without first obtaining a warrant, although Justice N. Smith commented that this case was close to the “line.” The Court found that there existed a reasonable expectation of privacy in the BarWatch information and that the police in obtaining the same were conducting a search that should have been the subject of prior judicial authorization.
Although R. v. Roudiani was a criminal decision, for bar and nightclub operators Justice N. Smith’s decision is a welcome and useful clarification on what use BarWatch data, and similar personal information, can be put to by investigators, and the process that ought to be followed when accessing it.
Importantly, this decision like all Charter decisions is fact specific, and Alcohol & Advocacy recommends that all licensees obtain the advice of counsel whenever dealing with issues of privacy, evidence, or police requests.
If your establishment requires assistance responding to the demands of liquor inspectors or police officers contact Dan Coles at Owen Bird.
*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.