Kingston Police's use of a drone to catch distracted drivers stirs backlash

Drivers at three busy intersections in Kingston, Ont., had no way of knowing they were being watched earlier this month, but high above them police hovered, zooming in to catch those using their phones while behind the wheel.

By the end of the day on May 7, officers had handed out 20 tickets for distracted driving — each alleged violation captured on video by a drone flying overhead.

It was the first time Kingston Police had used the tactic, and as residents heard what was going on, debate began to swell on social media between those who felt it had crossed a line and others who believed a novel approach was needed.

Chief Scott Fraser said the police service is simply using new technology to gather the same photos investigators have always used as evidence of texting and driving.

But legal experts argue it's an invasion of privacy that amounts to an unreasonable search, and violates Canada's Charter of Rights and Freedoms.

Constitutional group threatens court action

Dominic Naimool, a local lawyer who's passionate about privacy issues, said he was surprised and concerned when he heard drones were being used to monitor drivers.

"In Canada, the court has been consistent in explaining to us that invasions of privacy, if they ever are justified, need to be necessary and as minimal as possible."

Naimool said while police have a job to do, their methods must be balanced against people's rights.

"These things tend to happen slowly and then suddenly," he said. "To see drones being widely used in an era where we're currently contending with things like widespread facial recognition and indiscriminate surveillance, that was concerning."

He contacted the Canadian Constitution Foundation (CCF) to share his worries. Earlier this week, the organization wrote a letter to Fraser calling for police to immediately stop using drones to record drivers inside their vehicles.

Lawyer says residents find it 'creepy'

The organization argued the practice violates Canadians' freedom from unreasonable search and seizure under Section 8 of the Charter. The CCF also warned Kingston Police it intends to take the service to court if it doesn't stop.

"There are a lot of Kingston residents who are concerned about this, who find it creepy and are asking whether it's legal, and in our view it isn't," said Josh Dehaas, a constitutional lawyer with the group.

Dehaas said he's unaware of any other police service in Canada or the U.S. using drones in a similar way.

"Kingston's on the cutting edge of, in our opinion, violating rights," he said.

Former Ontario privacy commissioner Ann Cavoukian also hadn't hear of the approach being used before, describing it as "absurd."

While red light cameras, photo radar and even planes flying above highways have been used to enforce traffic laws before, Cavoukian said drones are far more intrusive.

"People are allowed to have privacy when they're in cars," she said.

"If you're being filmed at a close range by a drone ... your privacy is out the door. You have no privacy."

Police ask, 'What's the difference?'

Fraser said the service has used drones for years for everything from crash reconstruction to monitoring crowds during St. Patrick's Day celebrations.

While he's aware of the debate the enforcement blitz has stirred up, Fraser said residents have also stopped him in person or sent letters saying they appreciate the effort to stop distracted driving.

"All you have to do is drive around for five minutes and everyone is on their phone despite the three day licence suspension, despite a $600-plus fine," said the chief.

He pointed out that in the past, police have used buses and vans to peer down on passing motorists who might be texting while driving. Fraser said the images they capture using such methods are "indistinguishable" from the evidence collected by drones.

"What's the difference of me sitting in a truck looking down in your window than a drone at 120 feet looking down in your window?" he asked.

The chief said the intent was never to snoop at what's on a driver's phone screen, nor anything else that might be going on inside their vehicle.

"If we thought this was intrusive violation of a person's privacy, then we would have sought permission or authorization to do it," he said. "But we're not obtaining anything that we wouldn't obtain anyways."

As for the threat of litigation, Fraser said the service will assess the CCF's arguments and consider the its opinion, and if the court rules police shouldn't use drones to catch distracted drivers, the police service will comply.

Naimool said he wants police to realize their approach is no minor invasion of privacy, and that it should be examined through a legal lens.

"My hope is that the Kingston Police reconsider when they are deploying surveillance technology [and] the significant impact that it can have, not only on the residents of the community, but also the precedent that they set," he said.