Can someone legitimately try to stop you from taking photos or recording video in a public place? There are some laws to know about, but the answer for Canada is that you generally have the right to take photos or record video in a public place, and nobody can lawfully stop you from doing so.

How it came up

This past week on Twitter, I saw a couple of discussions about people taking photos in public places, either being called out about it online or being told in person to cut it out.

In the first example, Canadian journalist James MacLeod took it upon himself to get a radar speed gun and document people speeding through a park. He’d take photos of drivers and their speed, and post them on Twitter. One twitter user said doing so seemed “suspect”.

In the second example, a person in Toronto tweeted that he’d been told by a security guard to not take photos of a shipping container put in a public street, blocking a cycling lane. As I replied, “there is no legal basis upon which a security guard can require an individual private citizen to stop taking photos or video in a public place.”

I’ve previously done a video about recording the police in public (link below), but figured it was time to do a more general video about photography and videography in public.

Here’s the general rule: you can take photos in a public place or record video on public property without any legal consequences. That doesn’t always mean you should, but you generally can. You can also photograph or record any place or thing that is visible from a public place, which would include private property as long as you yourself are not trespassing.

There is nothing in our criminal law that makes it illegal to take photos or video in a public place. Other general laws are going to apply. You can’t be a nuisance, and you can’t damage property and you can’t obstruct the police when they are carrying out their duties. You can’t block traffic to get the perfect shot. Short of that, you can generally stand in a public place and take photos of everything and everyone you see.

In fact, you have a Charter right to take photos or record video. The right to freedom of expression protected in section 2(b) of the Charter also protects your right to collect information. Photography and videography are inherently expressive activities and are thus Charter-protected. Any limitation in law on that right would have to be justified under s. 1 of the Charter and any sort of blanket “no photography in public” law would not be justifiable.

Exceptions – voyeurism

That said, there is a crime of voyeurism that has a few nuances and can apply in public or quasi-public places. It was added to the Criminal Code relatively recently.

It involves surreptitiously observing or recording a person where there is a reasonable expectation of privacy. It has to be surreptitious and there has to be a reasonable expectation of privacy.

Paragraph (a) makes it an offence to observe or record in a place in which a person can reasonably be expected to be nude … or to be engaged in explicit sexual activity.

Paragraph (b) makes it an offence where the recording or observing is done for the purpose of observing or recording a person in such a state or engaged in such an activity.

Paragraph (c) covers a broader range of observation or recording, but where it is done for a sexual purpose.

People should be aware that the courts have held you can have a reasonable expectation of privacy in a relatively public place and that the expectation of privacy can vary according to the method of observation. For example, you may not have much of an expectation of privacy with regard to being observed by someone at eye level, but you may have a protected expectation of privacy from being observed or recorded up a person’s dress or from above to look down their top.

One of the leading cases on this is called Jarvis.

The accused was a teacher at a high school. He used a camera concealed inside a pen to make surreptitious video recordings of female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. The students were not aware that they were being recorded. Of course, they did not consent to the recordings. A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused. There were other official surveillance cameras in the school hallways.

The court said:

“Given ordinary expectations regarding video surveillance in places such as schools, the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hidden camera, let alone by a teacher for the teacher’s purely private purposes (an issue to which I will return later in these reasons). In part due to the technology used to make them, the videos made by Mr. Jarvis are far more intrusive than casual observation, security camera surveillance or other types of observation or recording that would reasonably be expected by people in most public places, and in particular, by students in a school environment.”

So while the students should have expected to be incidentally observed by the school’s cameras, that did not ultimately affect their expectation of privacy where a teacher with a hidden camera was concerned. He was convicted of voyeurism.

Another key element in the voyeurism offence is that it has to be surreptitious. In Jarvis, the camera was disguised in a pen. There is a case from Ontario called R. v. Lebenfish, 2014 ONCJ 130, in which a person was changed with voyeurism after he was observed taking photos, mainly of women, at a nude beach in Toronto. He was acquitted because he did not make any effort to hide what he was doing. The court also found that the other beach-goers did not have a reasonable expectation of privacy. The court did note that he wasn’t using a long zoom lens or other form of photographic enhancement.

Sneakily taking photos up dresses can be the offence of voyeurism, but standing on a sidewalk obviously taking a photo of someone else would not be.

In Lebenfish, the accused was also charged with mischief. Specifically, it was alleged he committed mischief “by willfully interfering with the lawful enjoyment without legal justification of property,” namely, the beach.

The court found that he did not interfere with the lawful enjoyment of the beach, but also noted that the answer may have been different if there were signs posted saying no photography or if there had been a municipal by-law prohibiting photography at the beach. If photography was prohibited, then part of the enjoyment of the beach would be that it was camera free.

One thing that is worth nothing is that the law doesn’t offer any special protection for children. A while ago, the police here in Halifax were looking for someone who was reported to have been taking photos of kids at a public park. That was followed by a lot of people saying that it is plainly illegal to take photos of other people’s children at a park. That’s not the case. It is certainly creepy and concerning, but likely not illegal in and of itself.

Privacy laws

What about other kinds of laws? We have privacy laws to think about. The ones I deal with most often regulate what businesses can do. An individual taking photos for personal purposes is not a business.

And just to be clear, they have carve-outs for personal use and artistic use. Here’s what PIPEDA says:

(2) This Part does not apply to

(b) any individual in respect of personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose; or

(c) any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose.

The other provincial general privacy laws have similar exclusions.

Privacy torts

So what about the risk of being sued for damages for invasion of privacy. That’s not likely either.

In most common law provinces, you can sue or be sued for “intrusion upon seclusion”.

It is, in summary “an intentional or reckless intrusion, without lawful justification, into the plaintiff's private affairs or concerns that would be highly offensive to a reasonable person.”

If you poke into someone’s private life in a way that would be highly offensive, harm and damages are presumed.

You can also be sued for public disclosure of private facts, which also has to engage someone’s private life and be highly offensive to a reasonable person.

It is hard to see how taking photographs or video in a public place would engage someone’s private and intimate life, and be highly offensive to a reasonable person. It could be engaged if one were stalking someone, though.

Statutory torts

Some provinces have what are called statutory torts of invasion of privacy.

Here is the gist of the British Columbia Privacy Act.

1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

Note the violation has to be without a claim of right or legitimate justification.

It then goes on and says …

(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.

(3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.

Note it specifically refers to eavesdropping and surveillance in subsection (4), which reads:

(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

Again, it is hard to see how obviously taking photographs or video in a public place would engage this tort, but it could be engaged if one were stalking someone.

Private property but public places

Regularly, we go to places where the public is generally invited, but it is private property. This can also include what we often think of as being “public property”, but it is owned by someone else. Think of a park, which is owned by a municipality. People or organisations that own property can put conditions on entry to that property. One of those conditions may be “no photography”. And if you exceed or violate the conditions of your invitation, you could then be trespassing. The property owner would be within their rights to ask you to leave under provincial trespassing statutes. In some provinces, it may be a provincial summary offence. But the owner or occupier of the property would have to put you on notice that photography is prohibited on the premises.

Requests to delete photos

Finally, I’m sometimes asked if you can be required to delete photos taken. The answer is a resounding no. No private individual can take your phone and nobody can require you to delete any photos.

Video: Recording the police in public

I've written before about the law around recording the police in public (see posts tagged "Photographing Police"), but thought it might be useful to have a video discussion about the topic. Here it is ...

If you have any comments on thoughts on future topics, please leave them in the comments for the video on YouTube.

Yes, you can photograph or video police in public in Canada

An interesting discussion on Reddit brought a new Ontario case to my attention that has a lot to say about the right of a member of the public to video or photograph police officers in a public place in Canada.

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.

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.