January 29, 2018 by The Canadian Press
SYDNEY, N.S. – A Nova Scotia judge says it’s not the court’s place to enforce good manners, in ruling on a case that pitted a homeowner’s interests in monitoring her property against her neighbour’s privacy concerns.
Provincial court Judge Peter Ross found Joan O’Connor not guilty of committing mischief for installing security cameras around her property in Sydney, N.S., that captured some views of the home next door.
In a 21-page decision released Wednesday, Ross said the Crown had not proved its assertion that O’Connor’s recordings amounted to criminal interference with Stephanie Ayre’s ability to enjoy her property.
“While (O’Connor) was aware that her actions bothered Ms. Ayre, she did not set her cameras out with this purpose in mind,” he wrote.
Ross wrote that O’Connor “may have been inconsiderate and uncaring about the effect the video-recording had on Ms. Ayre, but even if this is so, it does not give rise to criminal culpability.”
Aside from the occasional exchange of pleasantries, the judge wrote, O’Connor and Ayre did not have much of a relationship beyond sharing a fence and an adjacent alleyway.
Their relations took a turn in the summer of 2016, according to court documents, when Ayre noticed that security cameras had been installed around O’Connor’s property, with at least one pointed towards the rear of Ayre’s home.
Pregnant and with her husband often away, Ayre grew concerned that the cameras could peer through her window and into her home, and she worried the footage would be shared on social media, according to the documents.
Ayre told the court that when she expressed her displeasure about the security camera, O’Connor replied, “Google does it,” the documents said.
“She said she lost sleep, stopped using the back door, and worried what the camera might pick up through the windows of her house. She admitted to being anxious by nature, but claimed that this worsened her condition,” Ross wrote.
“She moved her kitchen furniture so that it was not next to the windows, and covered the windows with plastic … She said these were all factors in her decision to separate from her partner and leave the property in July of 2017.”
O’Connor, who lives alone, testified that after her car was damaged, she installed the security cameras to monitor her own property for intruders, and also got a dog, the documents said.
Ross wrote that after Ayre asked police to look into the matter “discreetly,” and soon after officers paid O’Connor a visit, more cameras went up.
“There may have been some existing tension between the defendant (O’Connor) and police, unrelated to these charges, which caused the defendant some resentment at their involvement in the matter,” he wrote.
“A friend of Ms. Ayre became more assertive, if not outright hostile, about the presence of the cameras. This only cemented Ms. O’Connor’s determination to continue with it.”
O’Connor testified that she had as many as four cameras actively recording and two digital video recorders, according to court documents, but the cameras were low-resolution with no zoom capability.
The documents said O’Connor cited the lack of damage on her property as proof of the cameras’ effectiveness.
O’Connor acknowledged sharing some images captured by the cameras online, the documents said.
The judge said this evidence, largely online materials compiled by Ayre, was treated “casually” in court, and left him feeling like he was only seeing part of the whole picture, but he could not embark on an investigation of his own to determine what’s “out there.”
Ross found there was no proof O’Connor uploaded identifiable images of Ayre or her property to the internet, or that she ever intended intimidate or embarrass her neighbour.
“Few would wish to be unwilling and unwitting stars in an online ‘reality TV’ show,” he wrote, but said that hypothetical did not apply to this case.
“Even if Ms. O’Connor had nothing more than a prurient curiosity about her neighbour’s activities, it is not at all clear that viewing and/or recording on camera what is apparent to the naked eye constitutes criminal interference with a neighbour’s use and enjoyment of property.”
Ross mused about how the prevalence of closed-circuit TVs, privately owned security cameras and drones could erode people’s expectations of privacy to the point that surveillance of personal activity becomes a simple “fact of life.” Legislatures could see fit to limit surveillance in residential areas, he said, but those issues fall beyond the court’s scope.
He said that while O’Connor’s conduct might not have been particularly neighbourly, the facts show she had legitimate security concerns and was justified in monitoring her own property.
“This case raises legitimate concerns, but if there is a gap in the law it is not the court’s business to fill it,” wrote Ross. “Neither are courts arbiters of good manners; incivility is not a crime. Courts cannot force homeowners to be considerate of their neighbours.”
— By Adina Bresge in Halifax