Photographing in public in Canada

Street and documentary photographers in Canada need a working knowledge of the law: what they may photograph in public, when they need consent, what rules apply on private property, how to handle encounters with security guards and police, and how images may be used afterward. Canadian law in this area combines federal criminal law, the Charter of Rights and Freedoms, provincial privacy statutes, court decisions on privacy, Quebec's distinctive civil law protection of a person's image, and privacy legislation for organizations. This lesson summarizes the main principles for photographers in Canada.

The general principle

In most of Canada, there is no general law that prohibits photographing people, buildings or events that are visible from public places, such as streets, sidewalks and parks. Photography is a form of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms, subject to reasonable limits. People generally have a reduced expectation of privacy in public, though Canadian courts have recognized that privacy is not lost entirely in public spaces, particularly where recording is persistent, targeted or reveals intimate matters. The main exceptions concern Quebec's right to one's image, provincial privacy laws, voyeurism and intimate images, specific restrictions at certain sites, and the commercial use of images.

Privacy, image rights and publication

Quebec stands apart from the rest of Canada. The Civil Code of Québec (articles 3, 35 and 36) and the Quebec Charter of Human Rights and Freedoms (sections 4 and 5) protect a person's right to privacy and to their image. In Aubry v. Éditions Vice-Versa (1998), the Supreme Court of Canada held that a magazine infringed a young woman's rights by publishing, without her consent, a photograph taken of her sitting on a doorstep in Montreal, and awarded damages. The Court explained that the right to one's image is part of the right to privacy, but must be balanced against the public's right to information: publication without consent may be justified when the person is engaged in public activity or is newsworthy, or when they appear incidentally in a photograph of a public place or crowd, rather than as its main subject. In practice, street photographers in Quebec can usually photograph in public, but publishing images in which an identifiable person is the main subject, without consent and without a public interest justification, carries legal risk.

Outside Quebec, four provinces, British Columbia, Manitoba, Saskatchewan and Newfoundland and Labrador, have privacy statutes that make it a tort to violate another person's privacy wilfully and without a claim of right, and that specifically prohibit using a person's name or likeness for advertising or promotion without consent. In Ontario and some other provinces, courts have recognized common-law privacy torts, such as intrusion upon seclusion in Jones v. Tsige (Ontario Court of Appeal, 2012) and public disclosure of embarrassing private facts. These rarely affect ordinary street photography, but they matter for intrusive surveillance, publication of private matters and commercial use.

Voyeurism, intimate images and harassment

The Criminal Code makes voyeurism a crime (section 162): surreptitiously observing or recording a person in circumstances that give rise to a reasonable expectation of privacy, where the person is in a place where they might be nude or engaged in sexual activity, or where the recording is done for a sexual purpose. Publishing or distributing intimate images without consent is also a crime (section 162.1). Criminal harassment (section 264), including repeatedly following or watching someone so that they fear for their safety, can apply to persistent, targeted photography. These provisions do not affect ordinary street photography, but they draw clear lines around intrusive and sexualized image-making.

Recording sound

Video and audio recording raise an additional issue: the interception of private communications. Under Part VI of the Criminal Code, it is generally lawful to record a private conversation if at least one party to it consents, which includes the person recording if they are a participant. Recording a private conversation between other people without the consent of any participant can be an offence. Ordinary ambient sound on a street, and conversations held openly in public without an expectation of privacy, generally do not raise this problem.

Private property

Private property owners, including shopping malls, stores, restaurants, office buildings, stadiums and many transit stations, can set rules about photography on their premises and can ask photographers to stop or to leave; refusing to leave can lead to removal under provincial trespass legislation. Security guards may ask you to stop photographing or to leave, but they have no authority to take your camera, demand to see your images or force you to delete them; doing so could itself be unlawful. Photographing private property from a public place, such as a building's exterior from the sidewalk, is generally lawful. Some public property, such as government buildings, airports, ports and military sites, may have specific restrictions.

Encounters with police

Photographing and filming police officers carrying out their duties in public is lawful in Canada, and several police services have policies acknowledging the public's right to record. Officers may give lawful directions, for example to move back from an emergency scene, and obstructing an officer in the execution of their duty is an offence (Criminal Code section 129), so photographers should keep a safe distance and comply with reasonable instructions. Police generally cannot require you to delete images, and seizing a camera or searching its contents normally requires lawful authority such as a warrant, although police may sometimes seize evidence in urgent circumstances. The Supreme Court of Canada has recognized enhanced protection for journalistic sources and materials, and Parliament passed the Journalistic Sources Protection Act in 2017. If stopped, stay calm and polite, ask whether you are being detained, explain what you are doing, and do not physically resist.

Commercial use and releases

How an image is used affects what permissions are needed. Editorial uses, such as news, documentary, books, exhibitions and educational publications, are generally the most protected, though in Quebec identifiable subjects may still have claims where there is no public interest. Commercial uses, such as advertising, promotion, merchandise or stock photography licensed for marketing, normally require model releases from identifiable people and property releases for some private property, both under the provincial privacy statutes that prohibit unauthorized use of likeness for advertising and as a matter of standard industry practice. Organizations collecting personal information in the course of commercial activity are subject to federal privacy law (PIPEDA) or provincial equivalents, but PIPEDA excludes information collected for journalistic, artistic or literary purposes.

Special situations

Several situations deserve particular attention. Drones are regulated by aviation authorities, with rules about where and how they may be flown and over people (PHOT-350). Schools, hospitals, courts and correctional facilities usually prohibit photography without permission, and courts in many jurisdictions restrict photographing inside courtrooms. Transit systems often permit personal photography but restrict tripods, lighting and commercial filming without permits. Events, concerts and festivals may restrict photography through ticket conditions. Protests and demonstrations are generally public, but photographers should consider the safety of participants (Lesson 2). Photography of critical infrastructure, such as power plants and bridges, is generally lawful from public places, but may attract questions from security personnel.

Practical advice

Knowing the law helps photographers work confidently and handle confrontations calmly. Useful practices include carrying a summary of your rights, staying polite in every encounter, never physically resisting police or guards, backing up images regularly so that a lost or seized device does not lose your work, and seeking legal advice through professional associations, press freedom organizations or a lawyer if you face legal action. Remember that what is legal is not always ethical, and what is ethical may sometimes require more restraint than the law demands (Lessons 2 and 6).

Photographing in other countries

Laws about photography in public vary widely around the world, and photographers travelling abroad should research the rules of each country before they go. Some European countries, such as France and Germany, give individuals stronger rights over their image than Canada or the United States, which can affect the publication of identifiable street photographs. Some countries restrict photography of government buildings, military sites, police, bridges, airports or religious sites, and penalties can be severe, including confiscation of equipment, detention or deportation. Drone use is restricted or banned in many places. Local advice from photographers, fixers or press organizations is invaluable, and travel advisories published by governments sometimes mention photography restrictions. When in doubt, ask permission and err on the side of caution.

Documenting your interactions

If a legal dispute or complaint arises, records of what happened can be important. Photographers who work in sensitive situations sometimes note the date, time and location of encounters with security guards or police, the names or badge numbers of officers, what was said, and any witnesses. Some record encounters with police on video, which is lawful in public in both Canada and the United States, though it can escalate tension. Keeping signed releases, consent notes and correspondence organized also protects photographers if subjects later raise concerns. Professional associations and press freedom organizations can advise members facing legal problems.

Releases in practice

A model release is a short document in which the person photographed, or a parent or guardian for a minor, grants permission for specified uses of their image. Releases typically identify the photographer and the subject, describe the images, specify the uses permitted, note any payment or consideration, and are signed and dated. Apps now allow releases to be signed on a phone, often with a photograph of the signer attached. For documentary projects, releases can also record agreements about anonymity or restrictions, which is useful for both parties. A release should be explained in plain language, and people should not feel pressured to sign; a signature obtained under pressure undermines both its ethical and legal value.

Keeping up to date

Laws and court decisions about photography change, and new technologies such as facial recognition, drones and generative AI continue to prompt new rules. Professional associations, press freedom groups and legal clinics publish updates and practical guides, and it is worth reviewing them periodically, especially before major projects or travel.