CAVEAT: We are not lawyers, and this is not legal advice. However, with Darren’s past extensive experience enforcing the Criminal Code of Canada, we offer this perspective to help Canadian parents understand the “present” legal landscape surrounding the photography of children in public spaces.
It’s a common and valid concern among parents – “why are police often unable to take action when someone is seen taking pictures of children in public places, especially when these actions seem suspicious or inappropriate?” The recent case highlighted by Forbes Magazine involving a known paedophile in the United States who used a GoPro at Disney to create AI-generated Child Sexual Abuse Material (1), and cases here in Canada (2)(3), have only heightened this question. This article aims to clarify the legalities in Canada of taking these types of pictures, and offer guidance on what parents and caregivers can do if they encounter such situations.
The Law in Canada
In Canada, it is NOT illegal for anyone to take a picture or video of another person in a public space without their consent no matter what the age of person whose image is being captured. This includes situations where the subject of the photo is a child. While this may be extremely concerning, again, it is not illegal in Canada!
Here are some real-world examples we’ve encountered:
Scenario #1: A person is standing on a public sidewalk or roadway outside an elementary school, taking pictures of children on the playground.
- Concerning? Yes.
- Illegal? No.
Scenario #2: A person is in a public park, fairground, or public beach, taking pictures of children.
- Concerning? Yes.
- Illegal? No.
If the police are called to these situations, they will attend, but unless the person is committing a criminal or provincial offense, there is no power of arrest. It is also important to know that the individual taking the picture is not legally required to identify themselves to the police or to show them the images on their device.
So, When Might the Police Take Action?
The situation could change if the person taking the photos is already known to police to be under legal restrictions, such as court-ordered conditions or a police-issued recognizance that prohibits them from being near schools, parks, or other areas where children gather. In such cases, the individual could be arrested and searched. However, unless there are exigent circumstances, police would still need a warrant to search the suspect’s device, and if the images are password-protected, the suspect is not obligated to provide the password.
Exception: If the photos are taken in a public location where there is a reasonable expectation of privacy, such as a bathroom or change room, or if someone is covertly taking up-skirt pictures in a public place, these actions could be considered illegal under certain sections of the Criminal Code, such as voyeurism. In these cases, the individual could be arrested for obtaining images illegally.
What About Private Property?
Let’s consider another scenario:
Scenario #3: A person is taking pictures of children inside a private establishment like Costco, a shopping mall, or a movie theatre.
- Concerning? Yes.
- Illegal? No.
The situation may differ slightly if the private property has a clearly visible sign stating that photography or videography is not allowed. In such cases, store security or property representatives can ask the person to leave – it should be noted that security or the store representative still do not have the power to seize and/or search the phone or device that the pictures were taken on. If the person refuses to leave, and the police are called, the person could potentially be arrested for assault by trespass. However, even with an arrest, a warrant would still be required to search their device.
Our Recommendation
If you see someone taking pictures of children, especially if they appear to be doing so covertly, we still recommend contacting the police – DO NOT confront them yourself. While the person may not be arrested, or their device searched, your report could provide crucial information that helps law enforcement build a case over time that you may not be aware of. If it doesn’t place you in a position of danger, take a picture of this person if you can, or their car and licence plate number if they have one, that you can then share with the police if they leave before police arrival.
The legal landscape around taking pictures of children in public places can be frustrating for parents and caregivers, especially given the rapid advancements in artificial intelligence technology that make misuse of these images more accessible. Understanding the law is the first step in protecting your children. Stay vigilant, report suspicious activity, and remember that your awareness can contribute to broader efforts to keep our communities safe.
Digital Food For Thought
The White Hatter
Facts Not Fear, Facts Not Feelings, Enlighten Not Frighten, Know Tech Not No Tech
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