Photographing and filming police officers in Canada

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 infringement 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 watchmen

Every 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.

Update (2013-11-09): If you are interested in this topic, you'll also want to read this: Canadian Privacy Law Blog: Yes, you can photograph or video police in public in Canada.