The use of an unmanned aircraft (UAV) or drone to conduct surveillance is contentious public issue when government does it. When the private sector does it, it is particularly contentious.
As a speaker at a training event in Toronto, Ontario, I was asked about using UAVs for surveillance. This surprised me, as these were experienced private investigators. What follows was my answer to these questions.
If a private investigator intrudes into an area where the subject has a reasonable expectation of privacy and takes pictures and video, then that material is likely to be excluded by any court in Canada. The investigator must respect the Criminal Code as well as all municipal, provincial, and territorial laws regarding trespassing and privacy. The investigator may also face criminal charges or civil suit. A civil suit will name everybody even remotely associated with the sordid affair. These consequences pale in the face of what will happen next.
When a UAV is used for work done for hire and reward, as in a private investigation, a Special Operation Flight Certificate (SFOC) from Transport Canada is required. Aeronautics Act defines hire and reward as “any payment, consideration, gratuity or benefit, directly or indirectly charged, demanded, received or collected by any person for the use of an aircraft.”
The Canadian Air Regulations (CAR) Section 602.41 states that no person shall operate an unmanned air vehicle in flight except in accordance with a Special Flight Operation Certificate. Any violation of the CAR may result in substantial penalties: up to $5000 for an individual and $25,000 for a corporation. The UAV operator bears civil liability if property damage or injury occurs. If the video or image evidence was gathered in contravention of CAR do you think any court would allow the material in evidence? If the court did allow it, would the rest of your evidence be credible?
It takes 20 days to get a SFOC for each flight. Do you think the Transport Canada would even consider giving a private investigator such a permit? Can you plan your surveillance 20 days in advance?
In the U.S.A., commercial operation of a UAV it is still illegal. The Federal Aviation Administration (FAA) is considering allowing commercial UAV use in 2015.