Thursday, August 23, 2012

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.

Thursday, August 16, 2012

BC Commissioner: Privacy is a partner, not a foe, in medical research

The Information and Privacy Commissioner of British Columbia, Elizabeth Denham, has a very good and thoughtful opinion piece in yesterday's Vancouver Sun:

Privacy is a partner, not a foe, in medical research

Medical research is vital to all British Columbians. It saves lives and decreases morbidity. It improves our health outcomes and creates efficiencies in health care. And attracting research dollars is good for B.C.’s economy.

In recent weeks, there has been a lively debate about the barriers researchers encounter in accessing health data for medical research. Many participants in this debate allege that privacy law and policies are the culprits. I disagree.

As B.C.’s information and privacy commissioner, I am confident that it is possible to facilitate research and protect privacy at the same time. I have no doubt that medical research is in the public interest. In my view, privacy and research are partners, not adversaries, in the pursuit of better health outcomes. Protecting privacy and promoting research are both laudable public policy goals and both are important to British Columbians.

Opinion polling consistently demonstrates that citizens generally support giving academic and clinical researchers access to their health data, in de-identified form, or when the research requires it, in identifiable form. But their support depends on robust protection of the personal health information collected in the course of that research.

Protection of privacy matters in medical research, because the data is never “just data”: It is sensitive health information provided by individuals in good faith, in the context of receiving care. If that personal information is lost, compromised or improperly accessed, it can have a significant effect on a person’s sense of autonomy, dignity and trust in the health care organizations, research institutions and the health care system as a whole. Moreover, if people cannot be assured their privacy will be respected, they may be less willing to participate in future research. So, protecting privacy is essential if we want to maintain public support for medical research.

Fortunately, B.C.’s current legal framework facilitates privacy-positive health research; our legal commitment to privacy protection is not an obstacle. Our laws and policies are in line with international ethical and legal standards, and strike an appropriate balance between the needs of researchers to access data and the right to privacy.

One of the statutes that I oversee, the Freedom of Information and Protection of Privacy Act, allows public bodies such as the Ministry of Health and health authorities to disclose information for a research purpose.

Nevertheless, privacy concerns have been raised about the effect of this legislation. So, in an effort to address this issue head-on, I brought together a small but representative group of thoughtful individuals including data stewards, elected officials, government representatives and members of the health research community to have a lively and frank discussion about the state of medical research and data access in B.C.

There was unanimous agreement around the table that there is a problem. The problem is real and it is systemic. Researchers in British Columbia are simply not getting access to the health data they need to conduct medical research. This is unacceptable.

Barriers identified at the meeting included a troubling lack of information about what data types are available to researchers, persistent data silos that make accessing data across and within health agencies an exercise in frustration, data stewards with no efficient processes to approve data access requests and inefficient administration, including duplicate paperwork and lengthy approval timelines, which result in significant delays.

While I am pleased that the roundtable participants confirmed that B.C.’s robust privacy laws are not getting in the way, I will remain vigilant in ensuring these laws do not become impediments to vital medical research.

The Ministry of Health has committed to improve its record, ensuring that researchers obtain more timely access to necessary data. Participants at the roundtable were keen to talk about administrative solutions to remove impediments, streamline the request process, and reduce the paperwork required for researchers seeking approval, while ensuring accountability for the release and security of the data. They identified the need to explore greater use of de-identified data and broader support for data sources such as Population Data B.C., a multi-university data resource facility.

What is needed now is for members of the legislature to enunciate the importance of health research, for the ministry of health to articulate their vision and make it a priority, and for stakeholders to continue the dialogue begun at the roundtable.

Now more than ever, it is important to keep the channels of communication open and to collaborate on lasting solutions to address the systemic problems that have been identified.

Elizabeth Denham is information and privacy commissioner for British Columbia. A public report of the commissioner’s roundtable on health research is available at: