The Elephant in the Room

Elephant in the room

“He Said. She Said.” The Legality and Prudence of Using Audio Recording with CCTV Cameras

By Quintin Johnstone, President/CEO of Riskboss Inc.

As described by Wikipedia, “Elephant in the Room” is an American English metaphorical idiom for an obvious problem or risk that no one wants to discuss.” Controversial yes; however, very necessary conversation(s) here at Riskboss Magazine. In every publication, Riskboss Magazine will address the latest Elephant in the Room to clearly answer hard asked questions.

Our most recent Elephant in the Room is something impacting risk and security every day. It is the debate created by some detractors regarding installing audio recording devices at security desks that augment CCTV cameras. Claims and fear of potential Intrusions of Privacy are most often used to dissuade against installing such devices.

Pundits and experts strongly recommend the inclusion of audio as it removes the inevitable, “He said. She said.” outcome of investigations into inappropriate behavior of security guards, realtors, tradespersons, delivery workers and even resident-to- resident interactions. Without independent eyewitnesses, investigations of this nature most often fail without audio recording devices.

This article will clarify the law on this matter and also, the prudence of installing such devices. It also hopes to answer the often-overlooked question of whether it is fair to both the alleged aggressor and/or the victim of such complaints to leave questions unanswered during investigations. Lastly, it will answer the question, “What happens if I don’t have audio?”

History & Current State

The security desk is typically the central hub and gathering point for most residential condominium communities with respect to people, parcels, deliveries, access control and community concerns. This is also the location where there is likely to be more confrontations than anywhere else.

There was a time not too long ago when even the thought of having CCTV cameras at a residential security desk would have some residents up in arms regarding their privacy and the perceived intrusiveness of such devices in their community. Fast-forward, society has dramatically changed since ‘911’, the aftermath and the wakeup call to improved security and risk management. So to have the expectations of commercial tenants and condominium residents who demand a more secure community given the impacts of illegal short-term renters, trespassers and illegal commercial use (e.g. prostitution, illegal short term rentals, etc.). CCTV cameras are the norm now at security desks and for good reason.

Technology has advanced so dramatically in recent years that it seems like everyone has audio and visual recordings devices in the cars, motorcycle helmets, bicycles, and even home nanny-cams.

Audio and visual is available on cellular phones with a quick click of a button. Two-way communication in condominiums has been recently enhanced through the innovation of remotely monitored security kiosks that includes both audio and visual.

Society has not only accepted both audio and visual in the mainstream but in fact, in many respects it is now the new norm and society is demanding and expecting it. So the question begs, given the societal changes surrounding the increased desire for security, the technical advances that include both audio and visual recordings as a social norm, and the increased desire to enhance security and decrease risk, how do decision makers struggle with the right to privacy versus the right of commercial tenants, condominium residents and workers to be protected conundrum?

One Party Consent

In Canada, and according to the Criminal Code, only one person needs to consent to the recording of conversations. That means that if you are in any place, you do not need the permission of others present to record them. Once you leave that place, any continued recording by you of the people who remain is illegal.

Expectation of Privacy & the Law

The expectation of privacy is well rooted in Canadian law not only in the Criminal Code where the interception of private communication can lead to a five-year jail sentence for the interception of private communications but other relevant laws with respect to privacy.

For example, respecting compliance with the privacy provisions of the Personal Information Protection and Electronic Documents Act (“PIPEDA”) on when and how such recordings can be obtained, kept, legally released and used is not only important to understand but moreover essential to abide by.

According to the Canada’s Office of the Privacy Commissioner and as set out in the, “Guidelines for Overt Video Surveillance in the Private Sector”, surveillance is a reasonable expectation in areas requiring protection and where there is no privacy expectation.

It is a reasonable expectation that in these areas, people will not only be monitored but also be heard. Clearly visible notices and signage must be displayed indicating what type of recording is being made. This has been the norm for some time.

Protection Against Workplace Harassment & Abuse

The rights for the protection of workers in their workplace are very clear and well established in law in Ontario. It is a joint and shared responsibility for employers in all corporations. So is the protection against bullying and workplace harassment. The obligations of all corporations to ensure that all such incidents are deal with properly and warning/sanctions against offenders are levied immediately is very clear. Proactively, corporations are obligated to ensure that the proper tools are in place to protect workers in their work environment.

Expert lawyer, Michael Smyth is an employment and labour lawyer in Hicks, Morley LLP in the Toronto office. Mr. Smyth explains, recordings are a particularly useful tool to help to ensure that workplaces are safely maintained.

“From an employer’s perspective, having audio and CCTV cameras in areas where there is the potential for harassment or violence makes practical sense. Such surveillance can be used to assist in maintaining a safe workplace and investigating complaints as long as privacy responsibilities have been adequately accounted for and addressed.”

According to Mr. Smyth, pursuant to Ontario’s Human Rights Code and the Occupational Health and Safety Act, condos, as employers, have a duty to provide a violence and harassment-free workplace, develop policies and programs regarding violence and harassment, investigate incidents and implement corrective measures. As it concerns recordings, Mr. Smyth goes so far as to state that,

“If an employer has resisted implementing audio and CCTV recordings for fears of intruding on privacy rights, it should reconsider it in such circumstances, or risk being found liable for failing to take all reasonable steps to protect the health and safety of its employees.”

Is Audio Prudent at a Security Desk?

The Prudence of Audio in Condominium Expert condominium lawyer, Gerald Miller, managing partner of Gardiner Miller Arnold LLP, points out that with the recent implementation of amendments to the Condominium Act, 1998, boards and managers are under increased pressure to utilize technology to enforce rule compliance and ensure condo security, “Audio visual surveillance with recording capability at the security or concierge desk should become the norm in all high-rise buildings. It becomes critical that property management have audio and visual records of what exactly transpires in all circumstances in cases when an owner or tenants complains.

Similarly, when owners, tenants or guests complain about the behaviour of the concierge or security guards, the recording can verify the truth of any allegations made against the condominium corporation’s employees or contractors. This is especially true when allegations of sexual or other forms of workplace harassment are made.”

The Risk of Not Having Audio

Riskboss has conducted Comprehensive and Independent Risk Assessments of condominiums, commercial buildings institutions and organizations for over ten years. Part of that assessment is to measure risk using a number of variables that identifies threats and provides alternatives and solutions to such threats.

Riskboss evaluators consider the lack of audio at security desks as a high risk that should be mitigated. The lack of audio leaves far too many unintended consequences. It leaves both the alleged aggressor and the victim without closure that in many cases perpetuates negative feelings.

Expert condominium insurance broker, Basel Kaskas, from the Paisley-Manor Insurance Group, provides a real-world example of the consequences of not including audio as part of a condo’s risk mitigation process,

“A security guard was alleged to have been careless in his duties with respect to access control to a complex. Complaints were made by residents reporting that the security guard regularly left the gate open and let anyone pass without confirming that they were a resident or invited guest of a resident. The company employing the security guard never took the complaints seriously, as no audio was available at the desk so that they could confirm any problems. During a shift, this security guard left the gate wide open and, as result, a vehicle inside the parking garage was

entered and an iPad stolen. A ‘Failure to Perform’ lawsuit was filed and those involved were found liable.”

Conclusion

As the experts have indicated, installing audio recording devices in high-traffic areas in buildings, and, in particular, at

security desks, is very prudent and appropriate. The question is no longer whether audio is required or not as the law is very clear on the matter. It is rather a matter of what is the impact and implications of not having it.