Photography Laws in Canada

[Chireru]

I've been researching on this topic for a while, and still have not found solid answers. After being approached by people who just make up rules/regulations/laws about photography in public, I got to wondering what the real laws were.

I have a great deal of content that I've found, which I'll post when I get a chance a little later, but for now, does anyone here have an understanding of what laws are in effect with regards to photography in Canada? (more specifically, Toronto, Ontario).

 

[GoM]

I think it's just...with most public places, if you ask a security gaurd/get approached by one and explain, they're fine with it. Dunno about random people in a park or whatnot, but I've had no problems

 

[Chireru]

Well, here's what I have so far (please contribute anything you can find!):

You are guaranteed the right to take photographs
If you are Canadian, you should already know your rights:

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

~ Canadian Charter of Rights and Freedoms, 2.b)

This guarantees your right to express yourself through photography, and the freedom to publish your photos. So, unless you are relieved of your rights (by being arrested, or notwithstanding clause), the Charter guarantees your right to take photographs of anything. That's right, you can take photos of anything, and under regular circumstances, it is not against the law.

However, the charter only dictates the government's role (ie. the RCMP can't stop you from taking photos, just because they feel like it). The charter doesn't relieve you of breaking other laws, nor common law (private citizen vs private citizen).

So, although you can take photos of anything, you must be sure not to break any laws, statutes, regulations or bylaws by either the act of taking the photographs, or possession of the photographs. The following are some laws, statutes and regulations that I've found:

Criminal Activities
I'm assuming that you have a least a little grey matter. If not, do yourself a favor and read the Criminal Code of Canada. Don't do things like Breaking & Entering, Fraud or Personation, Mischief, Cruelty to Animals, etc.

Security of Information Act
This act is to protect Canada. Basically, do not do anything, or possess any photos that could be considered national secrets, interfere with a large number of Canadian's lives, impair or threaten the Canadian Forces, national security or intelligence.

Avoid taking a photograph of any of the following, specifically in relation to national secrets, unless you have permission (preferably written) from a ranking official:

• Arsenals
• Armed forces establishments or stations
• Factories
• Dockyards
• Mines
• Minefields
• Camps
• Ships
• Aircraft
• Telegraph, Telephone, Wireless or signal stations or offices
• Places used for the purpose of building, repairing, making or storing
  any munitions of war or any sketches, plans, models or documents
  relating thereto, or for the purpose of getting any metals, oil or
  minerals of use in time of war
• Any non-government military contributor
• Any place that is, on the ground that information with respect thereto
  or damage thereto would be useful to a foreign power

Now, this is not to say you can't take a photo of the things listed above, consider an Air Show, or parade, for example. However, when the RCMP approaches you after you take a photo of a nondescript building, expect to be hastled about this act. Note, however, that this is treason-level laws, and for anyone to be prosecuted for this, it requires the Attorney General's direct concent.

Realistically, the crown will have to prove that you possessed the photo, with intent to (or proof that you did) communicate it to forign country or fail to comply with all directions in the disposal of the photo at the direction of a lawful authority. So, if the RCMP asks you to delete a photo with regards to this act, do it. (but for everyone else, ie: a screaming parent, you are not required to).

Privacy Act
Does not apply between two private citizens. This does apply between a business and a private citizen, which may apply to commercial photography.

"Reasonable Expectation of Privacy"
According to the Canadian Charter of Rights and Freedoms, every Canadian is guaranteed a reasonable expectation of privacy. Unfortunately, this charter, according to section 32.1, only applies between the government and a private citizen, not between two private citizens.

This unfortunately is the most abused explination of privacy law in Canada.

The Personal Information Protection and Electronic Documents Act
This only applies to the activities of the federal government.

Trespassing
This ontario regulation disallows trespassing. You can not take photos on someone else's property unless the owner has permitted you to (if challenged, you must prove they permitted you in court). If you are permitted on the property, you must leave immediately if asked by the owner. You must also obey signs (no entrance, no trespassing, etc). Without signage, the following should be assumed no-trespass:

• garden
• field
• any other land under cultivation
• lawn
• orchard
• vinyard
• anywhere with trees planted that average less than 2 meters in height
• anywhere that is built in a way that it implies intention of keeping people off the premesis, or keeping animals on the premesis (ie: fenses)

With that in mind, you can enter any property that provides notice that certain activities are permitted, or implies permission to approach a door (for approaching the door only, of course).

If you are taking photographs in a mall, or some other privately-owned-but-open-to-the-public property, and their rent-a-cops get uppity, they can essentially make up any policy or rules they want. There are no law with regards to this, you don't have to do what they say. However, they can simply ask you to leave... if you don't, you are trespassing on their property. They can also ban you from the property, in which case, if you come back, your trespassing.

Quebec Human Rights Code
In Quebec, the Quebec Human Rights Code (PDF) chapter I, item 5 grants all humans the right to their private life. I'm fairly sure this applies between two private citizens.

TTC
Toronto has a TTC Bylaw that restricts photography for *commercial* use, without authorization. This mentions nothing of photography for private purposes. However, before throwing this technicality back at a TTC officer, do remember that some TTC security staff are special constables, who are actual police officers, and that a metro transit system can be considered as one of the items under the Security of Information Act above, and they can always ask you to leave (trespassing). The TTC is allowed to create it's own bylaws because of item #3 on this Ontario regulation.

Common Law
Canadian common law is case law... it's very difficult to draw up a list of things that are against the law, it's more just knowing about cases... if sometime in the past, a parent sued a photographer for taking a photo of their kid without concent, and the guy was found guilty, no law is actually created, but if the same thing happens again, the judge will look back to that case and rule the same for consistancy.

As long as there is damage done that you want recovered, you can sue for it. What that damage is, I don't know... taking your soul, public humilliation, loss of privacy, etc, but when it's you behind the camera, you can bet that your subject will figure it out.



So far I haven't been able to find anything that gives me the right or denies me from going to the park and taking a photo of someone. Similarly, I haven't been able to find any common law cases in which a photographer is sued for taking photos in public. (Besides the recent one in Quebec, which falls under slightly different laws than the rest of Canada).

One friend of mine mentioned that he was taught in highschool to not take photos of children in public.. The reasoning for it is if it's a single parent and child that have moved from an abusive spouse and the fear is that if the photo some how comes into their posession it could be possible to identify where they've moved to. I haven't found any mention of this anywhere though.

I'm also looking for a regulation or statute that says that everyone is welcome onto public-owned property (like parks, city hall, etc.), specifically I want to know if a private citizen can be charged with trespassing in a public park.

 

[Chiller]

Thank you so much for posting this. It might be a good idea to print this, and keep it in the camera bag , just in case. I have been hassled a few time, and also escorted out of two places for photography. ONe being a cemetery. After reading this, I can see where Chuck got on the power trip when I questioned him about not having no photography sign.
Thanks again.

 

[Chireru]

Thank you so much for posting this. It might be a good idea to print this, and keep it in the camera bag , just in case. I have been hassled a few time, and also escorted out of two places for photography. ONe being a cemetery. After reading this, I can see where Chuck got on the power trip when I questioned him about not having no photography sign.
Thanks again.

This is a work in progress, and I am no lawyer. It seems to make sense given the information I've found. Whether or not it is an accurate or complete interpretation of the laws, I have no clue. I'd like to hear more, as I've heard of a lot of photographers getting hastled by police, rent-a-cops, and private citizens, when it is nothing but prejudice. The guy with the P&S is OK, but the guy with the SLR and the zoom, he's up to no good.
Thanks for the support though.

 

[Peanuts]

Yes, thank you Chireru for posting this information. I have read it thoroughly and, though most of it sounded familiar, there were several points I was unaware of.

It is always good to have an understanding of ones rights, especially from a recent 'case' from two days ago. I recently went to a concert, which by no means whether through signs or warnings was it stated that cameras were not allowed. A person who also came brought in their DSLR, passing by at least four workers without any difficults. After they had taken several pictures, I shot a few, in which a security guard came crawling (quite literally) across the row of people in front, at least three of whom had their smaller digis in their hands, and proceeded to forcefully warn me that photography was not allowed. With this, I apologized and put the camera back into its case. For the rest of the concert, flashes from cameras and screens of camera phones were all over, but they ran into no problems. By the end of the concert, the band asked everyone to take their cameras out and take a picture. Now, by this time the guard had left his post. When leaving I inquired with another individual who was in charge and he informed me that the only banned recording device was video cameras. Now, whether it was simply a mis-interpretation of the first fellow assuming due to the size that it was a video camera, or he was simply on a power streak, I missed out a few photos. Just a reminder to always check your 'rights'.

Once again, thanks.

 

[Chiller]

I was escorted out of Mount Pleasant cemetery. They are a private group known as The Mount Pleasant Group of Cemeteries. Apparently, you can not take pictures if the cemetery is privatly owned. My beef with him was that there are no signs stateing that. He did not want me taking pictures of the front of the stones, and captureing the names. Said it was a privacy issue, which I was willing to accept. Where I felt he was wrong was he threatened me with a fine(he was a rent a cop) and with calling the police. I just suggested to him that maybe, it should be posted, cause I see photographers there all the time.
I was also asked to leave the grass of a building on Bloor street. I was photographing a monument there, and even tho, I was about 10' from the monument, it set off some sort of motion detector, and security came running out asking me to leave. There is no fence there, and it is a matter of a few feet from the sidewalk. I was able to capture the same picture from the sidewalk using a zoom lens anyways.
I just find that the laws are a little wierd. A guy can relieve himself on the Canadian War Memorial, but a photographer can not take a photo of a monument.
I will see what info I can find to help you. what you have posted is a great start, but will not apply to everyone, as the laws differ in provinces and cities.
Thanks again.

 

[Chireru]

There is a lot of disinformation out there with regards to laws with regards to Canadian photography, particularly a lot of US citizens believing that our laws must be the same as theirs, or that "Reasonable Expectation of Privacy" applies between private citizens (I believed this when I first started looking). In reality, if you can take the photo and it does not cause damage (financial or otherwise) to the subject or someone else, then you are allowed to take it (by my understanding).

As for your situation, the worst the rent-a-cop could have done is asked you to leave, then called the police with the complaint of trespassing. He could not directly fine you (but the police might). Same thing for the bloor street property (I wonder if that was public property, being a memorial?).

From everything I've read, as long as you know your rights, keep a cool head about it, and talk to the rent-a-cops in an understanding manor, it's just problem solving... they see that something is wrong... find out what, and work with them to solve the problem.
"I see people taking photos all the time, is this a new policy, or have there been complaints?"
"Which Canadian privacy law does this fall under, or is this just a policy?"
"I can understand the privacy reasons. Do you mind if I take photos where the names are unrecognizeable, or from another angle where the names are less visible? Your cemetary is very nice, look at some of these.."

If you play your cards right, (note in the above sentances that they offer an obviously wrong choice and a more correct choice), you can lead them along to eventually allow you to continue. Either way, a smile and a friendly demeanor can go a long way. Either they will realize that their objection holds no water, or you will solve the problem by creating an alternative, or they will ask you to leave.

I haven't heard it work often, but if they are unresponsive to that, you can try strong-arming them by shotgunning questions at them... "Who created this new policy? What is their name? Do you have a phone number or contact information for them? What is your full name? How do you spell that? When was this policy put in place? Who is your supervisor? Can I get their phone number or contact information?" This may make them realize that you will make them accountable for their decision to hastle you, but you are more likely to tick them off and get yourself banned from the property.

Remember that no-one can threaten to destroy your camera (Criminal Mischief + maybe civil liability) or hurt you (Assault). They can not confiscate your film or card (Theft, or Mischief if they expose your film), or force you erase the photos (with the exception listed in my earlier post). Even if it is their property, they do not own in any way the photos, or rights to your photos. According to the Canadian Copyright Act, even if they are unregistered, your photos are copyrighted by you, for your lifetime, and 50 years after the end of the year you die. (Commercial photography differs).

 

[Big Mike]

Great information, thanks for posting this.

I'm not 100% sure about this, but I think I've read about a major difference between US and Canadian copyright laws.

In the US, by most accounts, the photographer (artist) owns the copyright to any image they create. The rights can be sold or contracted to the artist's employer (staff photographer etc.).

In Canada, if a piece of art (photo etc.) is commissioned, the copyright belongs to the person or party that commissioned it and not the artist, providing payment was made. Photographers would then need specify in a contract if they wanted to retain the copyright.


I've heard some conflicting information on this...so I'm not sure what is correct.

 

[markc]

There's the same thing in the US. It's called work-for-hire.

 

[Chireru]

In Canada, if a piece of art (photo etc.) is commissioned, the copyright belongs to the person or party that commissioned it and not the artist, providing payment was made. Photographers would then need specify in a contract if they wanted to retain the copyright.

By my understanding, you own all photographs you take. If you are being commissioned to take photos, then in that agreement, you would sign over your rights to the photographs you take under that agreement, in exchange for money.

You would need to stipulate in that agreement (or ask permission afterwards) if you want to retain the rights to use the photos for your personal portfolio, print them for yourself, or use them elsewhere. If you want recognition for taking them ("Photograph by"), then you will want to stipulate that in the contract too. This would be civil law, more than copyright law (copyright would only really take effect if you sign over a photo to them, then reproduced it or sold it to someone else).

 

[Chireru]

So does anyone have any more information on this subject?

 

[Pixel9ine]

Thank you Chireru for your informative, detailed (and well-linked) post!

 

[angelwings]

Thank you so much for posting this. It might be a good idea to print this, and keep it in the camera bag , just in case. I have been hassled a few time, and also escorted out of two places for photography. ONe being a cemetery. After reading this, I can see where Chuck got on the power trip when I questioned him about not having no photography sign.
Thanks again.

This is a work in progress, and I am no lawyer. It seems to make sense given the information I've found. Whether or not it is an accurate or complete interpretation of the laws, I have no clue. I'd like to hear more, as I've heard of a lot of photographers getting hastled by police, rent-a-cops, and private citizens, when it is nothing but prejudice. The guy with the P&S is OK, but the guy with the SLR and the zoom, he's up to no good.
Thanks for the support though.

So here's my question. If you take a picture at a concert and it shows up just showing the lights with a shadow of a person on it, and you wanted to use it for a book cover, if you don't include the person's name or when it was taken etc, could you use it without having to get a release? I have a shot I took by fluke at a concert that is just the shadow of one of the guys in the band. It's mostly the lights in the background that I loved. I wanted to use it for a novel that I wrote that I am getting published, but I also don't want to ruffle the feathers of that band since they are my favorite. What do I do???

 

[Josh66]

What do I do???

Ask a bunch of people that were talking about it 5 years ago on a forum? Wait - you already did that?

In the US, I don't think you need a model release for a shadow... Not sure about Canada.

I would ask your publisher if they have a legal team that you can talk to or something...