PART ONE

On February 14, 1995, in the course of a routine service call, a technician employed by Public Works and Government Services Canada (PWGSC) discovered a hidden video camera unit trained on the work station of a clerk employed by Immigration and Refugee Board (IRB) in Montreal.

Being the innocent that she was, the employee thought nothing of it when the technician cavalierly tossed part of the unit back behind a ceiling tile.

On March 1, 1995, after colleagues convinced her of the seriousness of the matter, she informed members of the executive of the Montreal local of the Canada Employment Immigration Union (CEIU) who conducted an inspection and requested clarification from Montreal IRB management.

Neither the employees nor the local executive accepted the explanations offered by management.

Furthermore, it was learned that at least two employees had found voice messages on their telephones (one at work, one at home) implying that management was investigating the costs of telephone bugging equipment. (This was subsequently the subject of another unsatisfactory RCMP investigation)

When they discovered the second camera on March 2, 1995, the union local executive requested my assistance and intervention as the (then) National Coordinator CEIU/IRB. As well, as a consequence of the outrage of employees milling about attempting to disconnect the cameras, management called in Public Works Government Services Canada (PWGSC) to effect removal.

In a failed attempt at damage control, management met first with the union local executive, and then with all of the employees. Management told both groups that the cameras had been installed as part of a Royal Canadian Mounted Police (RCMP) investigation into thefts at the IRB and that the investigation did not involve an employee of the IRB.

As a consequence of a fax sent to IRB senior management in Ottawa, Montreal IRB management held another meeting with the union local executive. During the meeting, management alleged that the RCMP investigation actually related to a complaint alleging an attempt by someone outside of the IRB to extort moneys from refugee claimants using leaked information. Montreal IRB management again stated that the investigation did not involve any particular employee of the IRB.

Although the explanations satisfied neither the union local executive nor myself, in order to resolve the matter expeditiously and without fanfare, the union and the employee agreed not to pursue the matter except via normal grievance redress before pursuing alternate measures.

During the month of March, we filed a grievance, a complaint to the Privacy Commissioner and a number of Access to Information and Privacy requests for the purposes of grievance representations and in an effort to determine why the IRB had seen fit to place the employee's work station under video camera surveillance.

As well, on March 8 and 9, 1995, the Regional Directors of both Toronto IRB offices sent an e-mail to all Toronto employees and Board Members announcing that:

"..surveillance equipment (2 cameras) had been installed by the RCMP in November 1994 to monitor a computer and work station in the Montreal IRB office. This was part of an investigation by the RCMP regarding an alleged leak of information to a third party where the information was being used to extort money from refugee claimants."

On March 28 and 29, 1995, pursuant to questions posed both in the House of Commons and before the House Standing Committee on Immigration and Citizenship by Member of Parliament and Reform Party Immigration critic, Art Hanger, the issue came to the attention of the media.

While it is unclear who said what first, the following was subsequently reported:

Pierre Bourget, Acting Executive Director, IRB

"..this particular investigation concerned one employee." Minutes of the House Standing Committee, March 28, 1995.

"..simply to monitor the activity of a single employee." CBC Radio, Ottawa, March 28, 1995.

"..management at the Montreal office obtained a legal opinion that it was OK to install a camera in the ceiling above the work station of a public servant to determine whether the comportment of that person was appropriate." Edmonton Sun, March 29, 1995.

".. the investigation was a joint initiative with the RCMP." Edmonton Sun, March 29, 1995.

Nurjehan Mawani, Chairperson, IRB

"..satisfied the camera was installed for a good reason and was necessary." Chronicle Herald, Halifax, March 29, 1995.

David Austin, Director of Communications, IRB

"..the RCMP are more involved than they admit. It was done in consultation with the RCMP. It was not done on our own." Toronto Sun, March 30, 1995.

Hon. Sergio Marchi, Minister of Citizenship and Immigration

" I would frown upon the idea of spying on employees." CBC Radio, Ottawa, March 28, 1995.

" This monitoring device was put there as part of an on-going criminal investigation..." Edmonton Sun, March 29, 1995.

" The Chair of the IRB subsequently consulted both Public Works Security, that (sic) has responsibility for the building, and the RCMP for a normal police investigation." House of Commons Question Period, March 29, 1995.

"..the camera was installed after a formal complaint was lodged against an employee at the Montreal Immigration and Refugee Board office." Ottawa Sun, March 29, 1995.

"..a public servant is being investigated..the proper consultations have taken place..it is a criminal investigation..I do not wish to second guess our professional police authorities in this country but rather allow the investigation to continue as it should." House of Commons Question Period, March 29, 1995.

RCMP Sgt. Yvon Poirier

" We did not have anything to do with the installation of a camera at the Immigration office." Edmonton Sun, March 29, 1995.

" We do have an investigation at the Montreal board office but we did not install a camera. We did not ask for a camera to be installed." Toronto Sun, March 30, 1995.

Art Hanger, M.P. Reform Party

" The RCMP would have needed a warrant to install the cameras and would not have been able to leave them in the ceiling for the five months they were there. There would have been a time limit with the warrant. The question was asked who was responsible and it wasn't answered." Calgary Herald, March 30, 1995.

The announcements that she was the specific target of a criminal investigation by the RCMP shocked the employee. She was devastated to learn that the Minister of Immigration, the Chairperson of the IRB, the Acting Executive Director of the IRB, the Director of Communications of the IRB and the management of the Montreal IRB were all sanctioning illegal video camera surveillance without even asking her a single question. She was embarrassed and humiliated to suffer the whispers and the suspicious look from some of her colleagues.

As a result of the stress and pursuant to Doctor's orders, she went on sick leave for several weeks and then returned to the same work station.

After realizing that Montreal IRB management had effectively lied to her, had breached her privacy and had damaged her good reputation, we filed a much more detailed grievance and demanded, among other things, that the IRB draft a security policy that would prevent such abuse.

Between the end of March and mid July, we pursued the search for the truth and, when unable to obtain satisfactory response to the Access and Privacy requests to the IRB, to the RCMP and to Public Works, we filed formal complaints to both the Information and Privacy Commissioners.

On July 14, 1995, we received sufficient documents to enable us to deduce the country of origin of the complaining refugee claimant and from that the possible reason for the IRB and RCMP interest in her.

We concluded that the investigation likely related to an individual with whom the employee had been friends for thirty years. She was aware that her friend had been intimately involved with a refugee claimant and understood that the relationship had ended acrimoniously after a dispute over moneys owed by the refugee claimant.

The documents we obtained under Access and Privacy legislation, although incomplete, also revealed the following:

- that the RCMP took part in an October 5, 1994 meeting with the Chief of Finance and Administration, Montreal IRB and the PWGSC Chief of Security for the Guy-Favreau Complex during which they determined that the installation of illegal video surveillance was an appropriate response to the complaint;

- that the RCMP abrogated its responsibility to maintain conduct and legal control of an investigation which fell within its area of responsibility;

- that Public Works effected the installation of the first video camera on October 12, 1994 and the second video camera on November 6, 1994, both without legal warrant;

- that the IRB did not seek independent legal opinion prior to requesting the installation of video cameras by Public Works and further relied on the opinion of unqualified managers;

- that in statements to the media, the RCMP misled the public when it failed to reveal its knowledge of the installation of the video cameras;

- that in statements to the media, senior management of the IRB misled the public when they implied that Montreal IRB management had obtained an independent legal opinion prior to the installation of the video cameras;

- that in statements to both Members of the House of Commons and to the media, the Minister misled the public when describing the level and quality of pre-installation consultations between the Chairperson of the IRB, Public Works and the RCMP.

After a review of all of the documentation and consultation with union lawyers, the employee offered to assist the RCMP in its investigation and offer whatever clarification necessary to put an end to the suspicion of her.

On July 24, 1995, union counsel contacted the RCMP and made an offer for the employee to provide a statement. The RCMP officer in charge of the investigation declined and indicated that it was not certain that they needed to speak to the employee.

At this juncture, it was clear that Montreal management and senior management ignored many, if not most, of the requirements of the Treasury Board policies (of the time) detailed in the Treasury Board Manual Information and Management Component, Security, Section 16, Inspections and Investigations.

The most relevant portions of that policy are detailed below.

16.2 "The Canadian Charter of Rights and Freedoms guarantees that government employees have a right to a reasonable expectation of personal privacy; and this right extends to the workplace. They also have protection under the Privacy Act. A security inspection or investigation in the workplace , including any search or seizure, must respect this right and be balanced with the department's need for supervision, control and efficient operation of the workplace.

If a proper balance is not struck, and a search or seizure is found to be unreasonable, any evidence obtained may not be admissible in court. Moreover, the department may be liable for any damages, civil or criminal, that result. What is "reasonable" will depend on the circumstances in each case, and may vary from department to department, depending inter alia on specific responsibilities and activities, the nature of the work site and the purpose of the inspection or investigation. If challenged, the onus will be on the department to show that a particular search or seizure was reasonable.

A departmental security policy that clearly sets out the conditions under which searches or seizures will be carried out, would be important evidence in such a case."

16.3 "Departments conducting security inspections and investigations must have policies that establish the conditions under which these will be carried out. Security inspection policies and procedures must be clear, unequivocal and comprehensive; reasonable in the circumstances; and brought to the attention of employees before being implemented. They must also conform with the collective bargaining regime or any collective agreement in force.

Informing employees of inspection and investigation policies and procedures before they are implemented means giving reasonable notice to existing employees and advice on application or commencement for new employees. Where appropriate, the consent of the affected individuals should be obtained.

There is a need for prudence where inspections begin to merge with criminal investigations. That is, inspections are to be confined to the conditions set out in departmental policies; they are not to be deliberately used to by-pass the procedural requirements of the criminal law.

In particular, inspections should not be used as a pretext for carrying out a search for or to gather evidence of criminal wrong-doing without reasonable grounds."

16.5 "Suspected cases of theft, fraud, defalcation or any other offence or illegal act that involves employees and that do not require an immediate response by a police agency may be referred to departmental legal services for an opinion on the seriousness of the incident before taking further action. Otherwise, government policy requires that all losses of money and suspected cases of fraud, defalcation or any other offence or illegal act against the Crown must be reported to law-enforcement authorities. For further information, see Chapter 8 of the "Financial Management" volume of the Treasury Board Manual."

16.6 "All search requirements connected with an investigation into a suspected or potential criminal offence must be reviewed by a departmental security officer in consultation with departmental legal services and local police. A warrant is to be obtained where and when legally required."

16.9 "It is often necessary for departments, police and other agencies to cooperate to achieve a thorough inquiry.

Where appropriate, protocols should be established to regulate these cooperative requirements and departments should incorporate them into their policies and procedures. However, such protocols, policies and procedures are not to be used as substitutes for or means of bypassing warrant or other constitutional requirements."

It was also clear that Montreal management and senior management ignored many, if not most, of the requirements of the Treasury Board policies detailed in the Treasury Board Manual Program Management and Comptrollership Component, Comptrollership, Chapter 4-7 (formerly Chapter 8 Financial Management).

The most relevant portions of that policy are detailed below:

Appendix A, Preliminary Examination. Any preliminary examination undertaken by a department should be limited to ascertaining whether there is a possible basis to suspect hat an allegation might reasonably be expected to have some substance, the matter should be reported as outlined in Appendix C.

Appendix C, Reporting Instructions. Suspected cases of theft, fraud, defalcation or any other offence or illegal act involving employees that do not require an immediate response by a police agency may be referred to departmental legal services which will consult with the Criminal Prosecutions Section of the Department of Justice before providing an opinion.

(a) When, after consulting legal services, it is determined that the act is of a minor, employment-related nature more appropriately dealt with by disciplinary action, appropriate action should be taken after consulting with departmental staff relations advisors.

(b) When, after consulting legal services, it is determined that the act is of a more serious nature, in addition to taking any appropriate disciplinary action that the department determines is warranted, the matter must be referred to the Criminal Operations Branch of the RCMP which will decide what investigation will be undertaken and by whom.

In summary, it was clear that the IRB, PWGSC and the RCMP (by tacit agreement):

- conducted warrantless, surreptitious video surveillance in circumstances where the employee had a reasonable expectation of privacy thereby violating her fundamental right under Section 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable search and seizure.

- violated her fundamental rights under Sections 5, 24.1 and 46 of the Quebec Charter of Human Rights and Freedoms to respect for her private life, to be secure against unreasonable search or seizure, to fair and reasonable conditions of employment which have proper regard for her health, safety and physical well-being.

- violated her right under Section 35 of the Civil Code of Quebec to respect for her reputation and her privacy.

On September 7, 1995, we sent a complaint to the Minister of Justice, the Solicitor General and the Commissioner of the RCMP requesting a review of IRB, PWGSC and RCMP actions.

On September 8, 1995, the RCMP finally interviewed the person who was the subject of the original complaint. As well, on September 11, 1995, the RCMP finally interviewed the IRB employee whose offer to assist had been rebuffed by the RCMP in July.

Subsequent to this interview, the RCMP advised that it could be several more months before the investigation would be completed and a post-investigation decision made.

In October, the office of the Commissioner of the RCMP made contact and advised that they were conducting an investigation into their (own) actions in the matter.

On November 15, 1995 during an attempt to ascertain the status of the investigation, we learned that the RCMP had wrapped up its investigation and had sent two final reports to the IRB, one three weeks prior and one the previous week. When asked for copies of the report, the RCMP intimated that no further action was contemplated and stated that the RCMP had no obligation to provide a copy to the IRB employee or her union representative and that their client was the IRB.

The RCMP also expressed resentment that the RCMP was subject to an internal investigation, an investigation by the Privacy Commissioner and an investigation by the Solicitor General.

We then contacted the Regional Director Montreal IRB who also refused to provide copies of the RCMP reports stating that since we had taken the issue out of Montreal IRB management's hands and taken action under the collective agreement we could wait until final response was provided at third level of the grievance process.

On November 16, 1995, the Executive Director IRB came to Montreal to provide a briefing on an unrelated issue. During a planned meeting with the union local executive, the President of the Local informed the Executive Director that productive discussions would be facilitated were the Executive Director to intervene and make the RCMP reports available to the employee and her representative.

At a meeting later that day, the Executive Director provided an October 20, 1995 report from the RCMP to the Regional Director Montreal IRB indicating that the investigation had concluded with a recommendation to the Department of Justice (DOJ) that there was no evidence to support criminal charges.

Also provided was a November 1, 1995 report from the DOJ to the RCMP agreeing with the RCMP conclusions and expressing concern with the year and a half delay in resolving the original complaint, and a November 9, 1995 letter from the RCMP to the Regional Director Montreal IRB indicating that the DOJ had agreed with the RCMP recommendations that no further action was required.

We were offered no explanation as to why the IRB could not have immediately advised the employee and her representative of the RCMP findings on October 20, 1995 or the Dept. of Justice findings of November 1, 1995 or the RCMP notification of November 9, 1995.

At the conclusion of the meeting with the Executive Director IRB, we were informed that a full and final answer to the grievance would be issued by the close of business November 21, 1995.

In his unsatisfactory grievance response to the employee, the Executive Director IRB, Jean-Guy Fleury, wrote:

“this enquiry could not demonstrate with certainty that confidential information was divulged to external sources by you (griever) or other IRB employees”; and that

“the individuals involved in taking the decision to initiate such installation (of cameras) felt that reasonable grounds did exist at the time to proceed with such action, and did so to protect the integrity and confidentiality of the Board’s Refugee determination System after having explored all other alternatives.”

However, in documents subsequently received as a consequence of Access and Privacy complaints we learned that in an October 20, 1995 internal report, the RCMP indicated that it was already apparent by September 13, 1994 that the claimant’s lawyer could not have heard what she said she heard when she filed a complaint against the IRB employee.

Accordingly, when Montreal IRB management decided on October 5, 1994 to install video camera surveillance, the only so-called “evidence” was the allegation itself and the case had already seriously unraveled.

It is clear that at the time of the decision, when the IRB was subject to such intense media attention, Montreal management were motivated more by paranoia and desperation than by any lofty ideals and quite prepared to sacrifice an employee to appease the critics. It is also clear that management did not explore reasonable alternatives, such as asking the employee a few simple questions, but instead embarked on a fishing expedition.

In light of the November 1, 1995 comments by the DOJ (commenting on the RCMP report) describing any possible conclusion of wrong-doing on the part of the IRB employee as “insupportable, untenable, unwarrantable, unmaintainable or indefensible” (translated from the French insoutenable), it is also clear that the text of the statement by the Executive Director IRB concerning the lack of evidence was a gross understatement, was insulting and demeaning to the employee and constituted a self-serving prevarication intended to avoid moral and legal responsibility.

Since the Montreal office of the IRB had never apologized to the employee nor admitted its fault in the matter, it was clear that management at the IRB would continue to abuse employees' basic human, civil and contractual rights with impunity and immunity unless called to account.

Accordingly, we continued to explore a number of means to that end.

The Minister of Justice did not respond to our letter of September 1, 1995 nor to our follow-up letter of November 24, 1995.

The Solicitor General responded on December 11, 1995, denying responsibility on the part of the RCMP. He further indicated that responsibility for the use of video camera surveillance rested with the IRB and PWGSC and he forwarded our concerns to the (then) Minister of Citizenship and Immigration and to the (then) Minister of Public Works, neither of whom responded.

The new Minister of Public Works wrote on March 13, 1996 and indicated that Public Works had simply followed the wishes of its client, the IRB. She referred the issue to the Minister of Citizenship and Immigration.

The new Minister of Citizenship and Immigration wrote on March 20, 1996 and someone in her office wrote on April 18, 1996 stating that the subject was an internal matter and should be addressed to the Chairperson of the IRB.

The RCMP finally responded and wrote that while the RCMP took advantage of the video surveillance, it did not commission the surveillance.

The Office of the Information Commissioner had actionned and upheld all of our complaints and instructed the RCMP, PWGSC and the IRB to furnish the information withheld in contravention of the employee’s rights under the Access to Information Act. As well, the IRB was informed that it was not authorized to destroy the video cassettes until it had provided access to them by the employee concerned. Repeated attempts to arrange for the employee to view the cassettes had been ignored by the IRB and were subject to yet another complaint.

The Office of the Privacy Commissioner had actionned and upheld all of the withholding complaints against the RCMP, PWGSC and the IRB. More importantly, the Privacy Commissioner in a December 23, 1997 letter/finding ruled that the IRB had collected personal information about the employee without her knowledge and consent, contrary to the collection provisions of the Privacy Act.

Segments of particular interest selected from the letter are as follows:

“No one is more aware than I that it is well over two years since you filed this complaint and our investigation began. I regret the extraordinary delay in finalizing this matter. However, because I consider covert surveillance of employees in the workplace to be extremely privacy-intrusive, more time was required to deal with the matter than do most investigations and only recently has a resolution been achieved to my satisfaction.”

“ In their representations during the course of our investigation, the Board’s officials explained that covert surveillance of the employee was approved by the Board’s senior management.....”

“...the Board’s security officer in Montreal was given responsibility by the regional director to deal with the matter.”

“In the case at hand, however, the Board’s decision to utilize what I consider to be excessively intrusive means to collect the information was not justified. The decision to effect video surveillance of the employee’s work station was based solely on hearsay......Otherwise there was no hard evidence to suspect the employee of any wrong-doing.”

“I expressed to the Chairman of the Board my concern that the use of covert video surveillance in this instance was based on insufficient grounds. In my view, surveillance should only be carried out after conducting a thorough preliminary investigation that would lead an employer to have reasonable cause to suspect an employee of wrong-doing, and only after all other alternative techniques have been exhausted or considered to be ineffective. I therefore questioned the Board’s decision to collect the employee’s personal information in the manner used, especially since at no time was consideration given to using less intrusive alternatives to establish the extent, if any, of the employee’s involvement that would have achieved the same goal.”

“Following my review of the Chairman’s representations and the Board’s policy and procedures, I informed Ms Mawani of my finding that this complaint of an improper collection of personal information was well-founded. At the same time, I took the opportunity to offer my recommendations for enhancing the policy in such a way that it conforms with the fair information practices set out in Sections 4 to 8 of the Privacy Act. I also made several recommendations directed specifically at covert video surveillance.”

“I am pleased to report to you and the employee that Ms Mawani accepted my recommendations with respect to covert video surveillance; indeed, she indicated that the Board will not undertake such surveillance in the future. As for my recommendations on the general policy of investigations, the Board’s management will strive to incorporate them in its policy to ensure that it meets the requirements of the confidentiality provisions of the Privacy Act........ Please rest assured that we will follow up with the Board at some point in the not too distant future so that I am satisfied that my recommendations have been incorporated. “

On January 5, 1998, the employee concerned, Madame Ginette Millaire, decided to go public with the findings of the Privacy Commissioner.

On February 4, 1998, a complaint was filed with the RCMP Public Complaints Commission.

On February 26, 1998, Madame Millaire filed suit in the Federal Court against the IRB and the RCMP. Her suit had the support of the Canada Employment Immigration Union and the Public Service Alliance of Canada.

On December 8, 1998, the Federal Court-Trials Division declined jurisdiction and threw out Madame Millaire’s action against the both the Immigration Refugee Board and the RCMP.

To understand the reasoning behind the Federal Court's decision requires a brief review of the Master (collective) Agreement, the Public Service Staff Relations Act and recent jurisprudence.

Section M38.02 of the Master Agreement allows an employee who feels she has been treated unjustly or aggrieved by any action by her employer to present a grievance under Section 91 of the Public Service Staff Relations Act (PSSRA).

Section 91(1) of the PSSRA entitles any employee who feels aggrieved, as a result of any occurrence or matter affecting the terms and conditions of employment, in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, to present a grievance at each of the levels, up to and including the final level in the grievance process.

At the Immigration Refugee Board, there are three grievance levels, generally the first immediate supervisor excluded under the Public Service Employment Act (non-unionized), then the Regional Director and then the Executive Director.

Madame Millaire filed her grievances and pursued them to the final level at the IRB. One of the measures of redress sought was financial compensation in the amount of $50,000.00. This redress was not granted as the then Executive Director of the IRB wrote that he lacked the authority under the Financial Administration Act to grant financial compensation.

Section 92 of the PSSRA entitles any employee dissatisfied with the decision at final level to refer the grievance to adjudication, but only with respect to:

- the interpretation or application of a provision of a collective agreement or an arbitral award;

- disciplinary action resulting in suspension or a financial penalty; or

- termination of employment or demotion.

There is no provision in the collective agreement that remotely deals with secret video surveillance of employees. Accordingly, in Madame Millaire’s case, neither of the three scenarios above applied. Consequently, the grievance was not sent on to adjudication..

Section 96(3) of the PSSRA states that, where a grievance has been presented up to and including final level, and is not one that can be taken to adjudication, the decision on the grievance taken at final level in the grievance process is final and binding for the purposes of the PSSRA and no further action can be taken under the PSSRA.

Upon receipt of the ruling of the Privacy Commissioner that the IRB had breached Madame Millaire’s right to privacy, the suit was filed in the Federal Court. We argued, as others have argued, that the actions of the employer did not fall within the collective agreement.

In its decision in Madame Millaire’s case, the Federal Court followed the arguments by the Department of Justice and the reasoning in Weber v. Ontario Hydro (1995) 126 DLR, 583 (S.C.C.) to the effect that

“the issue is not whether the action, defined legally, is arising under the collective agreement. Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal (Public Service Staff Relations Board) and the courts can not try it.”

In other words, the Court has effectively ruled that it will not interfere in the unlawful video surveillance of employees of the Federal Government notwithstanding that such employees do not have any measure of redress beyond the final level in the grievance process. Accordingly, employers such as the Immigration Refugee Board, a tribunal devoted to compensating for the absence of human rights in other countries, can do whatever it wants to employees so long as it occurs at the worksite and is not specifically covered by the collective agreement. What a sad day for Canada!

One final note from the 1993 Information and Privacy Commissioner of Ontario study: Workplace Privacy: The Need for a Safety-Net

“ The legislative regulation of potentially intrusive employment practices is piecemeal, at best, thereby providing insufficient protection against potential abuses. Although guidelines and court decisions are helping to further define workplace privacy rights, some privacy advocates are concerned that the pace of these developments is too slow.

In unionized workplaces, employment practices may be restricted through collective agreements. Although labour arbitration cases have developed a right to privacy in the workplace, the collective bargaining process is viewed as not being a sufficiently far-reaching and powerful tool to regulate employment practices such as electronic surveillance.”

On December 16, 1998, the four year battle for Madame Millaire to access the video surveillance cassettes ended.

Faced with the threat of action in the Federal Court by the Privacy Commissioner, and a mounting number of complaints by other employees at the Immigration Refugee Board, the IRB finally stopped stone-walling and allowed Madame Millaire and I to review the cassettes.

Here is what we found:

- 15 of the 130 cassettes used by the two cameras during the five months surveillance were missing (later found);

- a total of 72 IRB employees (almost half of the Montréal IRB staff) were captured on video;

- between February 10 and March 2, 1995, the camera angle was deliberately changed with no other possible objective but to capture anyone entering Madame Millaire’s office, putting the lie to the IRB’s argument that anyone else filmed was done so by accident.

What important evidence did the IRB and the RCMP gather during this very expensive and intrusive five month piece of voyeurism?

- Madame Millaire usually took her coffee and lunch breaks at her desk;
- Madame Millaire’s favorite morning snacks: muffins or toasted cheese sandwiches;
- Madame Millaire favorite beverages: chocolate milk or Coca Cola;
- Madame Millaire’s favorite brand of salad dressing: Kraft;
- Madame Millaire’s favorite chocolate bar: Kit-Kat;
- Madame Millaire’s favorite newspaper: Journal de Montréal;
- Madame Millaire likes to do crossword puzzles during her break;
- Madame Millaire recycles her plastic lunch bags;
- Madame Millaire likes to keep her finger nails short:
- Public Works only water the plants every six to eight weeks:
- Someone’s hand is seen grabbing a piece of Madame Millaire’s muffin when she wasn’t looking;
- Someone broke Madame Millaire’s small makeup mirror.

The latter two pearls were undoubtedly the subject of another very hush hush IRB and RCMP investigation using the latest in forensic methods and surveillance technology!

On February 11, 1999, the Privacy Commissioner made a similar finding concerning the complaints of 11 additional employees of the Montreal IRB.

The Privacy Commissioner wrote:

"This letter constitutes my finding in the Privacy Act complaint you initiated against the Immigration Refugee Board on behalf of (employee). You complained in May 1998 that the Board had improperly collected his personal information on videotape without his consent.

Your complaint is directly associated to an earlier investigation my Office conducted with respect to the Board's covert video surveillance of one of its employees working in the Montreal regional office. In that case, our investigation established that in November 1994, Board officials installed a video camera above the employee's workstation following their decision to place the individual under investigation. The camera remained in place until March 1995, when it was discovered and then dismantled. The camera also recorded visual information about other individuals, including (employee), during those occasions when they entered and exited the employee's work area.

It was my view that the Board had insufficient grounds to resort to this intrusive method of investigating an employee and concluded that its decision to do so constituted an improper collection of personal information.

Clearly then, my decision in this instance must be similar. In other words, the Board should not have collected the employee's personal information in the form of video taping, nor did it have the necessary authority under the Privacy Act to collect any other individual's information on videotape. Consequently, your complaint on behalf of (employee) is also well-founded.

In a March 18, 1999 response to my letter of January 25, 1999 to the Chair of the RCMPPCC, they wrote:

"The Commission received your request for review on January 22, 1998. The Commission asked the RCMP to provide the relevant material pertaining to your complaint, which was received on March 19, 1998.

The Commission has been asked to review in the order of 1200 complaints over the last four years. Although Commission staff have been working diligently to cope with this workload, the fact is that we have not been able to complete the reviews requested during this period in a timely fashion. Accordingly, we now face an accumulated backlog of over 500 cases. These cases are at various stages of the review process; some are near completition, some are under active review, while others are yet to be undertaken.

Your file has not yet been assigned to a Reviewer/Analyst, who will conduct the review. That person will be contacting you once the file is assigned."

The Privacy Commissioner published his Annual Report for 1999-2000. He reported that his recommendations to the Immigration Refugee Board were incorporated into Treasury Board's Spring 1999 changes to Security policies (see below) applicable throughout the federal government.

In October, 2000, the RCMPPCC advised the file had been assigned to a reviewer who expected to deliver a final report by the end of December 2000.

On January 30, 2001, the RCMPPCC advised it had sent an interim report of its findings to the Solicitor General and the RCMP Commissioner. Upon receipt of a response from the RCMP Commissioner, a final report would be sent.

On July 25, 2001, the RCMPPCC, now known as the Commission for Public Complaints Against the RCMP, finally released their report into our complaint. Their findings were as follows:

"The video surveillance equipment was installed by an official of PWGSC, at the request of an official of the IRB. No warrant was obtained for the installations and there is no evidence of any prior legal opinion having been sought with respect to the installations. There is no evidence that Corporal Gendron asked for, explicitly approved of, or explicitly objected to, the installations.

The IRB (and PWGSC) understood that it had the approval, tacit or otherwise, of Corporal Gendron for the video installations. Corporal Gendron, on the other hand, viewed the investigation of Ms Millaire by the IRB as an internal employer-employee matter under the control and direction of the IRB. In this context, Corporal Gendron cannot have been considered as having given his tacit approval of the installations; nor can his actions or inaction be in violation of the rights of Ms Millaire under the Canadian Charter of Rights and Freedoms, the Quebec Charter of Human Rights and Freedoms, or the Civil Code of Quebec.

Corporal Gendron should, however, have considered the investigations of Ms Millaire as of a potentially criminal nature from the time she was identified by the IRB as the possible source of the information leak in the IRB. Corporal Gendron should have ensured that all parties participating in the criminal investigations were aware of their roles and responsibilities, that proper investigative techniques were employed, and that all necessary legal requirements were satisfied as regards the collection of evidence."

Every action and possible avenue of redress has now been completed in this file. There will be no further updates however this web page will remain as a reminder, big brother is watching!

Robin Kers
National Vice-President CEIU-IRB
August 22, 2001

Excerpt from the 1997-1998 Annual Report of the Privacy Commissioner

Video surveillance "excessively intrusive" and unjustified

Of all the tools in an employer's arsenal, covert surveillance of its employees is surely one of the most intrusive and thus should meet the most rigorous tests. A complaint against the Immigration Refugee Board (IRB) illustrates.

A lawyer representing a refugee applicant told the IRB that within hours of her client's in camera hearing, a third party told the refugee that her application had been approved. According to the refugee, the third party had been seen in the company of an IRB employee whom she described. The lawyer complained to IRB.

Concerned about the leak of information and a possible internal source, Board security staff began an internal investigation. Security staff focused on the employee based on the refugee's description which appeared to match the employee, a clerk in one of the regional offices.

IRB senior management approved the use of cameras which remained in place until a Public Works technician moved some ceiling tiles during routine maintenance and dislodged one in the employee's presence. IRB then removed them.

The Commissioner concluded that the Board's evidence was insufficient to warrant such excessively intrusive surveillance; it amounted to hearsay and the employee's acquaintance with the third party. The investigator determined that security staff had never considered confronting or consulting the employee. As well, using a video camera (without audio capability) trained on the clerk's desk begs the question of what useful information it could possibly have captured. Presumably an employee leaking information would not do so in the middle of the employer's premises in full sight of everyone. And, without audio, the camera would not capture compromising phone calls.

The Commissioner questioned the Board's resorting to covert surveillance on mere suspicion. "In my view, surveillance should only be carried out after conducting a thorough preliminary investigation that would lead an employer to have reasonable cause to suspect an employee of wrongdoing, and only after all other investigative techniques have been exhausted or considered to be ineffective" he wrote. He asked for the Board's representations.

The Board responded, acknowledging that "in hindsight, an investigation by a law enforcement agency would have been preferable". The Board had apologized to the employee and drafted a policy to guide staff in any future incidents. While the Commissioner applauded the intent, he had several recommendations on the specifics. (See below.)

The Commissioner concluded that although the Board had reason to be concerned about leaks, and an obligation to protect personal information, its investigation method was excessive given the dearth of evidence. He considered the complaint well-founded.

Needed: A government policy on employee surveillance

Not content to leave the matter there, the Commissioner wrote to the Treasury Board urging it to draft a government-wide policy on covert employee surveillance. As a foundation, he offered the recommendations made to IRB.

His recommendations were both general, concerning any investigation of employees, and specific. Any policy on covert video surveillance should satisfy all the following requirements:

reasonable grounds to suspect serious misconduct, which may include criminal misconduct, must exist before covert video surveillance is considered an investigative option;

use only when all other reasonable measures, including non-investigative measures such as counselling, workplace notices and education programs, have proven ineffective or are likely to prove ineffective;

do not use where individuals have a reasonable expectation of privacy (for example, changerooms). If the alleged conduct under investigation is believed to be criminal, police should be asked to investigate. This will ensure a court review since police must first obtain a warrant to conduct covert video surveillance where there is a reasonable expectation of privacy;

where individuals do not have a reasonable expectation of privacy, authority to order covert video surveillance should rest only with the head of the government institution personally, and not be delegated;

to the extent possible, covert video surveillance should not intrude on the privacy of persons other than the individual under investigation;

the surveillance must not continue longer than is reasonably necessary to conduct the investigation;

access to the videotape and any information generated by the video-tape must be strictly limited to those who have a legitimate investigative need for the information, and must not be used, for example, as a vehicle for monitoring employee performance generally; and,

the individual placed under covert video surveillance must be notified afterwards about the surveillance, including where and when it occurred, and the justification for the surveillance, unless there are compelling reasons not to do so.

Excerpt from the 1999-2000 Annual Report of the Privacy Commissioner

Video surveillance was the subject of a complaint reported in the 1997-1998 annual report. We observed at the time that covert videotaping, as one of the most intrusive tools, demands the most rigorous justification.

Concerned about the general privacy issue, the Commissioner wrote to Treasury Board, urging it to develop a government-wide policy on covert surveillance. He recommended that the policy specify, among other things, that surveillance should be based on reasonable suspicion and used only after less intrusive methods had been ruled out, that reasonable expectations of privacy should be respected, and that surveillance should be restricted as much as possible to the person under suspicion, rather than sweeping in employees indiscriminately. These recommendations, while specifically addressing video surveillance, arguably apply to all forms of workplace surveillance.

Some of the Commissioner's concerns about surveillance were addressed by the Treasury Board Policy on the Use of Electronic Networks, published in 1998. Although, as noted above, that policy is not without its shortcomings, it did ensure that electronic networks were not the basis of an "electronic sweatshop." And in April, 1999, Treasury Board released a policy on video surveillance, which adopted all the recommendations made by the Commissioner the previous year.

Visit these sites and send them an e-mail with your comments on this issue.

Immigration Refugee Board

Public Works and Government Services Canada (PWGSC)

RCMP

RCMP Public Complaints Commission

Department of Justice

Canadian Human Rights Commission

Privacy Commissioner of Canada

Workplace Privacy Links

Criminal Code of Canada

"Invisible Eyes: Report on Video Surveillance in the Workplace", The Privacy Committee of New South Wales

"Workplace video surveillance - controls sought",The Privacy Committee of New South Wales

"Workplace Privacy: The Need for a Safety-Net", Information and Privacy Commissioner/Ontario

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