In R. v. Zarafonitis, 2013 ONCJ 570, the Court was considering the appropriate sentence for a police officer who pled guilty to using excessive force in arresting a photographer who was recording an altercation outside a crowded, noisy bar. The police arrested the individual with the camera for public intoxication, which was admitted to be justified, but used grossly disproportionate force when the photographer resisted and injured the man significantly. The man had been singled out and ordered by the officer to stop taking pictures:
While the noise investigation was ongoing in the restaurant, Mr. Farkas took pictures of Mr. Zarafonitis and another officer inside the restaurant. When Mr. Zarafonitis expelled a performer onto the street, Mr. Farkas followed them and tried to photograph the event. The scene outside the restaurant was noisy, with agitated restaurant patrons screaming and yelling at the officers; the crowd was drunk, aggressive and confrontational. Mr. Farkas stood on the sidewalk taking photographs and Mr. Zarafonitis told him to stop photographing and to leave the area. Mr. Farkas declined to leave, feeling he was entitled to continue taking photographs. Mr. Zarafonitis responded to the refusal by arresting Mr. Farkas for public intoxication under the Liquor Licence Act, an arrest that Mr. Zarafonitis believed to be valid.
The Court made some important observations about the right of the public to photograph police and the lack of justification for an officer to direct an individual to either move, leave the scene or stop photographing:
Police-citizen interaction typically involves a significant power imbalance. Just as judges should be hesitant to second-guess police decisions often made under stress without time for long reflection in back alleys late at night, we have to recognize that the citizen on the other side of that interaction, who may or may not have committed an offence and who is entitled to the protection of the rule of law, is also often alone in a back alley late at night. In the absence of an overarching and tangible safety concern, such as telling a photographer at a fire scene to back away if there is a danger that the building will collapse on him, telling people not to record these interactions, whether they be a bystander or the person the police are dealing with, is not a lawful exercise of police power. An officer who conducts himself reasonably has nothing to fear from an audio, video or photographic record of his interaction with the public. The public has a right to use means at their disposal to record their interactions with the police, something that many police services themselves do through in-car cameras and similar technology. The officer’s powers exist to allow him to protect the public and himself and to enforce the law; they do not extend to controlling the public record of what happened. The maintenance of that public record plays a significant role in the maintenance of the rule of law. The existence of this form of objective “oversight” has great potential to minimize abuses of authority and to maintain peaceable interaction between police and the citizenry, all of which is very much in the public interest. Interference by a police officer in the public’s exercise of that right is a significant abuse of authority.
Update: For further discussion on this topic, with lots of comments, check out: Canadian Privacy Law Blog: Photographing and filming police officers in Canada.