The Ottawa Citizen has a very good editorial on the practice of police intimidation of citizens who use their cellphone cameras and other devices to record the police.
Here's a summary of what Canadians should know about this:
- There is no law in Canada that prevents a member of the public from taking photographs or video in a public place (other than some limitations related to sensitive defense installations);
- There is no law in Canada that prevents a member of the public from taking photographs or video of a police officer executing his or her duties in public or in a location lawfully controlled by the photographer (in fact, police officers have no privacy rights in public when executing their duties);
- Preventing a person from taking photos or video is a prima facie infrigement of a person's Charter rights;
- You cannot interfere with a police officer's lawful execution of his or her duties, but taking photos or videos does not, in and of itself, constitute interference;
- A police officer cannot take your phone or camera simply for recording him or her, as long as you were not obstructing;
- These privileges are not reserved to media -- everyone has these rights;
- A police officer cannot make you unlock your phone to show him or her your images; and
- A police officer cannot make you delete any photos.
Here's the Citizen's editorial:
Watching the watchmenEvery Ontarian should read the Police Services Act’s Code of Conduct, especially the part in Section 30 that says an officer engages in discreditable conduct when he or she “uses profane, abusive or insulting language or is otherwise uncivil to a member of the public.”
This reminder is necessary given what appears to be a predilection on the part of some police to order citizens to cease using cellphones or video cameras to record officers in the public performance of their duties.
The fact is, police have no sweeping authority under Canadian law to order people to stop taking pictures or videos of them in public or confiscate their devices without a court order. Certainly, police can arrest anyone who wilfully obstructs them while taking pictures, but even then they have no automatic right to seize the device, much less delete its contents.
Unfortunately, say observers, too many police think otherwise. And even if they know better, they too often use the excuse of obstruction and the threat of arrest to cover their illegal demands.
“Increasingly, people are being arrested, charged or even assaulted by police officers, merely for attempting to take photos or videos of officers at work,” says lawyer Karen Selick, who wrote on the topic last week in the National Post. “Often, police simply command people to stop photographing. Scared into thinking they must be breaking some law, citizens comply.”
“Police are being caught on camera and they don’t like it,” says Carleton University criminologist Darryl Davies. “But contrary to what the police may feel about the use of this technology to record their activities, there is no restriction on people taking pictures.”
“There is nothing in the Criminal Code that would directly prohibit someone taking pictures of officers in the performance of their duties in public,” says Abby Deshman, Director of the Public Safety Program at the Canadian Civil Liberties Association. “They can tell you to move away but they don’t have the right to stop you taking pictures.”
Deshman says the association has been contacted by several people complaining of “feeling intimidated or threatened with charges by police for taking pictures of them in public.”
The most infamous case in Canada in this cops versus cameras confrontation is undoubtedly that of Robert Dziekanski, the Polish visitor, who died after he was tasered at the Vancouver airport in 2007. A bystander captured the tragedy on video. The RCMP seized the camera and the owner had to threaten court proceedings to get it back.
In Selick’s account, a client whose property was being searched by police asked friends to videotape the event. The police, however, forbade them taking pictures. They also confiscated the cellphones of three others they thought connected to Selick’s client when they searched their homes. The photos taken on one phone were even deleted. According to Selick, when the phone’s owner complained, police responded: “We can do whatever we want.”
No they can’t. So, what should you do when a police officer (or, for that matter, a self-important security guard, pompous park warden, officious bylaw officer or any other badge-carrying public servant) tells you to stop taking pictures?
Davies offers this advice: Politely and respectfully inform them that they have no authority to issue such an order, that there is no law in Canada that forbids you taking pictures in a public space, and if they act aggressively toward you or threaten to seize your advice, calmly inform them they will face an official complaint and, possibly, criminal charges of illegal search-and-seizure.
As a society, we give large-scale powers to police. However, cellphones and video cameras readily expose how those powers can be abused. And as Davies remarks, “that is why the presence of this technology is being resisted by some police. They don’t want to be caught on camera doing what they have always done.”
Policing is a tough and risky job. Officers confront the worst of human nature. It is also true that subduing someone can appear excessively violent to an outside observer when, in fact, the controlled use of violence may be the safest thing for both the suspect and the officer. Police officers may think those who question their authority — or take pictures of them — raise the risk threshold. Thus, they react aggressively.
But unwarranted aggressiveness is a symptom of inadequacy and, indeed, compensation for the insecurity born of that inadequacy. In this regard, more psychological testing of police officers over the course of their career might be warranted. Police cadets take a psychological examination when they join the force, but considering the nature of the job and the effects of police culture — that thin blue line mentality that regards anyone not wearing the badge with skepticism — periodic testing every, say, five years might prove worthwhile.
Citizens should always be respectful of police, but the greater onus is on the police to respect the citizen — even when they are taking pictures that might embarrass officers — because they have sworn an oath to uphold the law.
Possessing a badge and a gun is not an excuse for petty tyranny. The police exist to ensure the safety of the public, not control the public.
25 comments:
Thank for this.
It is very clear in respect of public space, but so little space these days is public. What are the rules in a shopping mall, or on public transit? Does the owner or the leasee of a space have the right to restrict the taking of photos of, for example, the security guards removing a person from the mall?
What about when a drunken passenger spits on a transit driver? Do I have right to take that video and post it?
I'm pro-privacy and a photographer, which means that I tend to focus on pictures of friends and landscapes. Pictures of strangers on the street...not so much!
Thanks, David!
Wouldn't posting the photos or videos online potentially breach privacy laws in Quebec? E.g., the Supreme Court of Canada case of Aubry v. Éditions Vice-Versa inc., in which a photo was of a person in public was published in a magazine without that person's permission.
@John, as I understand it, anyone who controls property can set the terms by which people can enter the property and how the can act on it. So an owner of private property can say that nobody on the property can take photographs (which has no impact on someone off the property taking photos from the outside-in). About a transit driver, the rules may be different because they would not be doing it as a private citizen but as an employee of the transit company. So what rules apply to the employer likely apply to the employee.
@Arbuckle, as I understand it, it would depend on the use of the photos. If used in a journalistic way (and not commercial), I would at least argue that the use is protected by the Canadian Charter and any rule that limits that usage is unconstitutional. But others may disagree...
Hi all
As a Police Officer, I have no issue with a citizen filming or recording me in the performance of my duties. Police officers should not fear this because in most cases if acting accordingly and doing what you have authority to do it actually supports your version of events. It is the best evidence.
The only comment I would make is to the citizens who engage in recording Police in action. Please be advised that by doing so you will likely become a compellable witness in a criminal prosecution or a disciplinary hearing against an officer who was engaged in misconduct. You may have to attend court on multiple occasions and miss work probably without pay. Your phone or device may become subpoenaed or the subject of a court order or a search warrant and therefore lost to you for several months or years.
I commend article for highlighting this issue.
Thanks for highlighting that, Warren.
It's worth noting that many police departments and other law enforcement agencies have started using dashboard-mounted cameras and even wearable cameras. The rationale is that they not only protect the public against police misconduct, but also protect the police against untrue allegations of misconduct. I haven't seen any reviews of their effectiveness, however.
For example, Taser has been heavily marketing their AXON FLEX On-Officer Camera. Part of their sales pitch is that it:
Improves behavior of all parties during police interactions.
Reduces false complaints and lawsuits by accurately capturing video from the officer’s perspective.
Enhances public trust and creates safer communities at a lower cost.
Good read, and very important public information for a free and democratic society. But, how would you go about handling such a situation? Couldn't a police officer wrongfully just charge you with obstruction of justice, or an otherwise unrelated charge to prevent you from recording, and force you to defend yourself in Court? Also, what are the "limitations related to sensitive defense installations" you refer to in point 1? What could be the possible outcome if you violate these limitations? Just interested in the subject! Let me know if you have a minute and thanks!
Recording video or audio of officer misconduct and releasing it to the media is a good idea. Do not give them your name and make sure they cannot trace it back to you. Instead of getting ionvolved, just pass the footage onto the media which will be far more effective. The officer commenting on this article is accurate and you can be asked to testify and also provided the recording gear. But if you supply it to the media agency, the media agency lawyer will most likly fight to keep your identity secret and there is no need for you to go to court or lose your gear. In my opinion the officer is just tryingto keep people from sharing controversial footage since he does not share any alternative method of releasing the footage.
@seand - The Security of Information Act, which may not be constitutional, deals with collecting or disseminating information about "prohibited places", which are defined pretty broadly. Click on the link to see the statute and read the definition. Way broad.
@anonymous - Anyone who is a witness to anything relevant and at issue in a criminal proceeding (regardless of whether there is police misconduct involved) can be compelled to give evidence about what they saw. Anyone who is visibly recording it would obviously be of interest for the real evidence they would have collected.
I have experienced the police "upset" at being recorded first hand. Although police have no right to stop you from recording a situation they can punish you for doing so. In my case I recorded a police take down in the lobby of a hotel I was staying at, keeping my distance from the scene, and for my trouble I was arrested and charged with assaulting a peace officer and obstructing a peace officer. I also had my phone taken as evidence. Got a cracked rib and bruises for exercising my right to record. Be aware that although you might be within your legal rights you face an uphill battle for exercising them.
Thanks for posting this article. I have a question regarding the use of dash mounted camera's and the posting of videos of driver's breaking traffic laws, i.e. no signaling of turning/lane changes, passing on the shoulder, using hand held electronic devices ( I'm in Ontario ), tailgating etc. When these videos are posted and the licence plates or faces of the drivers are visible, do these have to be "blurred" out so they aren't recognizable? I've seen many postings on video sharing websites where this is the case that everything is visible. These are Canadian, and more specifically Greater Toronto Area related videos that I watched. Sorry if this comment isn't relating to the recording of police, but more out on the roadways.
I'm curious about how this applies to Canadian hospitals, which, if I understand correctly, are considered public space but not public property, even when they are mainly funded with government finances?
Does a person have right to take photographs in Canadian hospitals?
About hospitals ... publicly owned doesn't necessarily equal a "public place" or a "public space". Many hospitals have policies regulating photography on their property.
I was stopped by police many times(British Columbia)for petty stuff, burnt out signal light which turned into a drug search by a cop dog and three cops on the side of the road for three hours
Because I was a bit cold,nervous and shaken i looked "suspicius"....I am quite positive
Being nervous, is quite a regular and common occurrence with the public...I dont believe it justifies probable cause to search me,and hold me on the side of the Road for hours,screaming at me telling me I have pounds of dope in my car and hours later coming up with nothing...I recently read an article a woman in the states,I believe Texas, came upon a road block...she slowed from 67 to 59mph
and the cops ran in their car turned around followed her for a distance,then pulled her over on the claim of lane swerving and traveling over the fog line...the police dash cam showed different also a judge ruled actions like,shaking,sweating,inability nervousness are natural interactions when people come across an law authority and does not justify a pull over,let alone turning around to follow someone
I've had multiple interactions like the one I stated above with police,this by far the worst in terms of amount of police over nothing...I've NEVER had a cop help me, not once! Tons of power trippin Bullying
Cops Tho who have little to no knowledge of law
It's a joke to deal with them to say the least
Approval of my comments? That's in violation of my free speech rights
Thank you for this informative article. I have just one question. If one is filming police officers in operation and possibly in the midst of police misconduct, and they notice you are filming, do they have a right to confiscate your recording equipment as evidence on the scene? And if you refuse can they charge you with obstruction of justice if you don't hand it over immediately?
It would seem that they can use that excuse to forcibly take your equipment and lock you in jail, and in the meantime delete any evidence and the one filming will be in a lot of hot water with no evidence and having to defend oneself and pay lawyer fees.
I'm curious about the answer to the comment posted directly above as well.
I know someone who used their cell-phone to film the Police arresting someone on the side of the road. After the arrest had taken place, and the suspect was carted off to jail, one Officer approached him and asked him if he had videotaped the incident. My friend informed the Officer that he had, and the Officer told him that he would have to seize the cell-phone.
My friend refused to hand over the cell-phone, stating that he believed the Officer needed a warrant in order to legally seize it. The Officer informed him that this was not the case, and that he was legally allowed to seize the cell-phone without any warrant, because it contained "evidence" relating to a Police investigation.
My friend even offered to accompany the Officer to the Police station, where he would allow them to make a copy of the video. But, the Officer refused, and demanded that he hand-over the entire phone. The Officer then threatened to charge him with withholding evidence and obstructing a Police Officer if he didn't hand-over the cell phone.
With that, my friend acquiesced, and gave up the cell-phone. He did, eventually, get the cell-phone back - fully intact, undamaged and unaltered.
Was this legal? Can they seize a recording device if you used it to film them arresting someone?
This happened in Ontario.
My lawyer friend encountered a situation like this. The officer confronted him when he tried to take a photograph of him while standing in line. It's a good thing my friend know all about these laws so the police can't do anything about it.
Hi, I have filmed and uploaded footage of tactical police officers on youtube (video here: youtu.be/G2hk33tR6MU) and now a detective wants to meet me to talk about it. He won't say exactly what the nature of the interview will be but he told me I'm not under arrest and that I am involved in his investigation. My question is what law could I have possibly violated in this case?
I can't give legal advice through blog comments, but I would suggest you contact a lawyer in your jurisdiction who may be able to provide some guidance. Alternatively, you can ask him to provide you with his questions in writing to determine the scope of your involvement in his investigation.
I was taking pictures inside a public space at a City of Ottawa swimming pool from the stands of my kid's swimming lesson. I was told that I was not allowed by the city staff and they posted a sign saying I had to ask permission first and after that they would watch over me and tell me who I could take pictures of etc... As I understand it, in a public space, they should not be allowed to restrict photography, yet they have. And I also asked what would happen if I did not comply and they said they would ask me to leave. If I did not leave then I would be charged with trespassing. This seems to fly in the face of what the charter says... thoughts?
Police misconduct is usually hidden from the public and these cops who regularly act inappropriately know how to get around anyone taking an incriminating photo or video depicting them acting outside the law.
try and prove anything if there are two of them and just you on the street, your camera pics get deleted or video and you have to prove that happened , good luck !
The cellphone/smartphone is a very effective weapon to punish bad cops.
If you are in a potentially hostile situation where you feel the police are going to try to unlawfully take your phone...stop recording and send what footage you have -- to a freind, family member, etc. Once that footage is out there, then taking your phone and deleting the video will proove meaningless for the police.
The second best thing to do, if you feel you won't have the time to send the video, is to save it to your memory card. There is software available to retrieve deleted video from your phone once the police hand it back to you, if they do.
Failing all of this, keep in mind that surveillance cameras are usually everywhere. If the police are caught in view of these cameras taking your phone and/or committing the misconduct or criminal activity which you may have videotaped, you can always try and get the security video (if any) from the place of business, neighbouring businesses, or a nearby school. This, of course, is one of the first things police do whenever a crime is committed so you do the same (this is strongly recommended for victims of police brutality).
Finally, if police unlawfully charge you with obstruction of justice, file suit against the police service Board. Obstructing police, if I'm not mistaken, involves preventing police from performing their LAWFULL duties and it must have been your willfull intent do so...and the police must proove obstruction beyond a reasonable doubt. It is also a legal defense if you were on the scene for a purpose other than to obstruct police.
* As we've seen in high-profile cases in Canada and the United States, mobile phone and surveillance camera video are devastatingly effective at nailing police who engage in, among other things, perjury...obstruction of justice...breach of trust...assault!
The cellphone/smartphone is a very effective weapon to punish bad cops.
If you are in a potentially hostile situation where you feel the police are going to try to unlawfully take your phone...stop recording and send what footage you have -- to a freind, family member, etc. Once that footage is out there, then taking your phone and deleting the video will proove meaningless for the police.
The second best thing to do, if you feel you won't have the time to send the video, is to save it to your memory card. There is software available to retrieve deleted video from your phone once the police hand it back to you, if they do.
Failing all of this, keep in mind that surveillance cameras are usually everywhere. If the police are caught in view of these cameras taking your phone and/or committing the misconduct or criminal activity which you may have videotaped, you can always try and get the security video (if any) from the place of business, neighbouring businesses, or a nearby school. This, of course, is one of the first things police do whenever a crime is committed so you do the same (this is strongly recommended for victims of police brutality).
Finally, if police unlawfully charge you with obstruction of justice, file suit against the police service Board. Obstructing police, if I'm not mistaken, involves preventing police from performing their LAWFULL duties and it must have been your willfull intent do so...and the police must proove obstruction beyond a reasonable doubt. It is also a legal defense if you were on the scene for a purpose other than to obstruct police.
* As we've seen in high-profile cases in Canada and the United States, mobile phone and surveillance camera video are devastatingly effective at nailing police who engage in, among other things, perjury...obstruction of justice...breach of trust...assault!
The cellphone/smartphone is a very effective weapon to punish bad cops.
If you are in a potentially hostile situation where you feel the police are going to try to unlawfully take your phone...stop recording and send what footage you have -- to a freind, family member, etc. Once that footage is out there, then taking your phone and deleting the video will proove meaningless for the police.
The second best thing to do, if you feel you won't have the time to send the video, is to save it to your memory card. There is software available to retrieve deleted video from your phone once the police hand it back to you, if they do.
Failing all of this, keep in mind that surveillance cameras are usually everywhere. If the police are caught in view of these cameras taking your phone and/or committing the misconduct or criminal activity which you may have videotaped, you can always try and get the security video (if any) from the place of business, neighbouring businesses, or a nearby school. This, of course, is one of the first things police do whenever a crime is committed so you do the same (this is strongly recommended for victims of police brutality).
Finally, if police unlawfully charge you with obstruction of justice, file suit against the police service Board. Obstructing police, if I'm not mistaken, involves preventing police from performing their LAWFULL duties and it must have been your willfull intent do so...and the police must proove obstruction beyond a reasonable doubt. It is also a legal defense if you were on the scene for a purpose other than to obstruct police.
* As we've seen in high-profile cases in Canada and the United States, mobile phone and surveillance camera video are devastatingly effective at nailing police who engage in, among other things, perjury...obstruction of justice...breach of trust...assault!
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