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.

Canadian police state legislation needs closer examination

I try not to get too opinionated on this blog, but there are some things I feel strongly about. One thing is the ability of people to live their lives (online and off) free of state surveillance and intrusion unless an impartial judge decides that the balance needs to be shifted in favour of the state.

When the recent election was called, a bill fell off the order paper that would remove the impartial judge and put significant surveillance powers it the hands of the state. (In fairness, I have to say that this was originally conceived under the previous Liberal goverment, but is currently part of the Conservative Party's law and order platform that they say will be passed within 100 days if they win a majority (Conservative majority would pass lawful access [laws] within 100 days)). One Bill in particular needs a full airing and thorough debate. It was introduced in the last session and never made it past first reading. This means there was no debate and no scrutiny of any kind.

Here's why Bill C-52 - An Act regulating telecommunications facilities to support investigations needs much closer examination.

Section 16 of the Bill requires all telecommunication service providers to hand over enormous quantities of customer information to the police, CSIS or the competition cops. There is no limit on the amount of information to be provided and is only restricted to "duties" of the cops or intelligence agency.

The provisions, at least as they appeared in Bill C-52, read as follows:

OBLIGATIONS CONCERNING SUBSCRIBER INFORMATION

16. (1) Every telecommunications service provider must provide a person designated under subsection (3), on his or her written request, with any information in the service provider’s possession or control respecting the name, address, telephone number and electronic mail address of any subscriber to any of the service provider’s telecommunications services and the Internet protocol address, mobile identification number, electronic serial number, local service provider identifier, international mobile equipment identity number, international mobile subscriber identity number and subscriber identity module card number that are associated with the subscriber’s service and equipment.

(2) A designated person must ensure that he or she makes a request under subsection (1) only in performing, as the case may be, a duty or function

(a) of the Canadian Security Intelligence Service under the Canadian Security Intelligence Service Act;

(b) of a police service, including any related to the enforcement of any laws of Canada, of a province or of a foreign jurisdiction; or

(c) of the Commissioner of Competition under the Competition Act.

(3) The Commissioner of the Royal Canadian Mounted Police, the Director of the Canadian Security Intelligence Service, the Commissioner of Competition and the chief or head of a police service constituted under the laws of a province may designate for the purposes of this section any employee of his or her agency, or a class of such employees, whose duties are related to protecting national security or to law enforcement.

(4) The number of persons designated under subsection (3) in respect of a particular agency may not exceed the greater of five and the number that is equal to five per cent of the total number of employees of that agency.

(5) The Commissioner of the Royal Canadian Mounted Police and the Director of the Canadian Security Intelligence Service may delegate his or her power to designate persons under subsection (3) to, respectively, a member of a prescribed class of senior officers of the Royal Canadian Mounted Police or a member of a prescribed class of senior officials of the Canadian Security Intelligence Service.

17. (1) A police officer may request a telecommunications service provider to provide the officer with the information referred to in subsection 16(1) in the following circumstances:

(a) the officer believes on reasonable grounds that the urgency of the situation is such that the request cannot, with reasonable diligence, be made under that subsection;

(b) the officer believes on reasonable grounds that the information requested is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and

(c) the information directly concerns either the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

The police officer must inform the telecommunications service provider of his or her name, rank, badge number and the agency in which he or she is employed and state that the request is being made in exceptional circumstances and under the authority of this subsection.

Let me break this down: Any designated police officer or CSIS agent can ask a telecommunications service provider to hand over any of the following information about a customer:

• name,
• address,
• telephone number,
• electronic mail address,
• Internet protocol address,
• mobile identification number,
• electronic serial number,
• local service provider identifier,
• international mobile equipment identity number,
• international mobile subscriber identity number and
• subscriber identity module card number.

This goes well beyond the usual scenario of when the cops have an IP address of someone suspected of online child exploitation and want the customer name and address information. But the bill doesn't say that if the cops have X info, they can get Y subscriber data. Instead, it just says on request the telco has to hand over the entire laundry list of data on customers. This is without a warrant, without a production order and without any court oversight at all. Unlike wiretap laws where stats have to be released, there is no obligation on the part of the police or the ministers responsible to release information about how these powers are used and under what circumstances. The Privacy Commissioner gets to audit it, but I don't think this saves any of the problems with the Bill.

The Bill contained no limitation on what level of investigation was required. It isn't limited to serious crimes or even trivial crimes. It is not limited to criminal or national security investigations. All that's necessary is that it be connected with the cop's duties. Collecting parking tickets fit within that category.

Think about what this means, given the laundry list of data to be provided with no threshold of probable cause or even a real investigation. The police can scan the airwaves at a protest and identify the IMEIs of the mobile phones in the vicinity. One request to the telcos can get the names and addresses of virtually everyone who was there. I bet the Egyptian authorities would have loved to have done this in Tahrir Square. Next time there's a G-20 protest in Canada, the police can do this, too.

There is no limitation in the statute that would prevent the police from asking for all the above data for any subscribers who connected, for example, to any cell site in a particular neighbourhood at a particular time.

In Canada, we expect that we can generally live our lives free of government surveillance and intrusion, unless an independent judge says that the government interest in crime fighting outweighs our individual right to privacy. This legislation would remove this balance and tips the scales dramatically toward police state powers.

A look at video surveillance in Halifax

The Sunday Chronicle Herald has two articles on the increasing use of video surveillance by police and private organizations in Halifax. They are interesting reading, but what I find most interesting is that this is the first time that I've seen any dicussion of how the police manage the feeds and access to recordings. Check them out:

• Eyes in the sky - Nova Scotia News - TheChronicleHerald.ca
• Wireless cameras add to police toolbox - Nova Scotia News - TheChronicleHerald.ca

  The cameras in place now are not monitored all day long, although they are recording, Supt. Moore said. The images are automatically deleted if there’s no request to see them within 14 days.

  The department used guidelines from the province’s Freedom of Information office as well as the federal Office of the Privacy Commissioner to develop its guidelines for using the images, he said.

  All viewing requests are made to him and only he and his technical staff have access to the recordings.

  "They’re very much locked down and once they’re collected, there’s a formalized process for someone looking to go in and find these images," he said.

  Supt. Moore said police haven’t used video from those downtown cameras to solve "big" crimes – yet.

  "We are still optimistic that it will, but to date it has not been pivotal," he said.

Any discussion of the policies regulating the use of video surveillance is a good thing, and better late than never.

Privacy Commissioners call for reconsideration of expanded surveillance powers

The federal, provincial and territorial Privacy Commissioners meeting together in St. John's have issued a statement calling for "caution" on the expansion of investigative powers proposed by the conservative government.

They issued the following media release, referring to resolutions available on the federal Commissioner's website:

Privacy commissioners urge caution on expanded surveillance plan

ST. JOHN'S, Sept. 10 /CNW Telbec/ - Parliament should take a cautious approach to legislative proposals to create an expanded surveillance regime that would have serious repercussions for privacy rights, say Canada's privacy guardians.

Privacy commissioners and ombudspersons from across the country issued a joint resolution today urging Parliamentarians to ensure there is a clear and demonstrable need to expand the investigative powers available to law enforcement and national security agencies to acquire digital evidence.

The federal government has introduced two bills aimed at ensuring that all wireless, Internet and other telecommunications companies allow for surveillance of communications, and comply with government agency demands for subscriber data - even without judicial authorization.

"Canadians put a high value on the privacy, confidentiality and security of their personal communications and our courts have also accorded a high expectation of privacy to such communications," says Jennifer Stoddart, the Privacy Commissioner of Canada.

"The current proposal will give police authorities unprecedented access to Canadians' personal information," the Commissioner says.

The resolution is the product of the semi-annual meeting of Canada's privacy commissioners and ombudspersons from federal, provincial and territorial jurisdictions across Canada, being held in St. John's.

The commissioners unanimously expressed concern about the privacy implications related to Bill C-46, the Investigative Powers for the 21st Century Act and Bill C-47, the Technical Assistance for Law Enforcement in the 21st Century Act. Both bills were introduced in June.

"We feel that the existing legal regime governing interception of communications - set out in the Criminal Code and carefully constructed by government and Parliament over the decades - does protect the rights of Canadians very well," says Ed Ring, the Information and Privacy Commissioner for Newfoundland and Labrador and host of the meeting.

"The government has not yet provided compelling evidence to demonstrate the need for new powers that would threaten that careful balance between individual privacy and the legitimate needs of law enforcement and national security agencies."

The resolution states that, should Parliament determine that an expanded surveillance regime is essential, it must ensure any legislative proposals:

• Are minimally intrusive;
• Impose limits on the use of new powers;
• Require that draft regulations be reviewed publicly before coming into force;
• Include effective oversight;
• Provide for regular public reporting on the use of powers; and
• Include a five-year Parliamentary review.

At the meeting in St. John's, the commissioners and ombudspersons also passed a resolution about the need to protect personal information contained in online personal health records.

The resolution emphasizes the importance of empowering patients to control how their own health information is used and shared. For example, it calls for developers of personal health records to allow patients to gain access to their own health information, set rules about who else has access, and to receive alerts in the event of a breach.

"Personal health records have the potential to deliver significant benefits for patients and their health care providers. However, given the highly sensitive personal information involved, developers need to ensure they build in the highest privacy standards," says Commissioner Ring.

Both resolutions are available on the Privacy Commissioner of Canada's website, http://www.priv.gc.ca/.

The resolutions are here:

• “Protecting Privacy for Canadians in the 21st Century” – Resolution of Canada’s Privacy Commissioners and Privacy Enforcement Officials on Bills C-46 and C-47
• “The Promise of Personal Health Records” – Resolution of Canada’s Privacy Commissioners and Privacy Enforcement Officials

Halifax police plan to use covert cameras in public places

Halifax Police plan to augment their network of surveillance cameras with hidden cameras in public places. Law abiding citizens have nothing to fear, according to the Mayor. Besides, the Mayor says, people are used to being surveilled on private property. What he doesn't seem to get is that private property is "private" property that you enter on the terms set out by the property owner. Public places do not have those stipuations. Or at least they shouldn't.

From the Halifax Chronicle Herald:

Police plan more camera surveillance - Nova Scotia News - TheChronicleHerald.ca

Halifax police intend to step up camera surveillance in public places, the city’s police chief said Tuesday.

Chief Frank Beazley said Halifax Regional Police officers will be using portable digital equipment in the near future to record images at "hot spots" in the municipality and public gatherings like rock concerts.

He told a city hall budget meeting the new gear won’t need to be installed — the police department already has fixed cameras at several locations — because police personnel will simply arrive at a potential trouble spot with cameras and leave with the pictures they’ve collected.

Mayor Peter Kelly supports more secret camera use at different sites. He said cameras tracking public goings-on are already a fact of life here and in other cities.

Asked if extra police snooping is an invasion of privacy, Mr. Kelly said law-abiding citizens have nothing to fear.

"For those who cause concern for others, you’ll have things to worry about," the mayor said, adding, additional surreptitious camera work will hopefully lead to crime prevention and the arrests of lawbreakers.

Mr. Kelly said people are routinely photographed on private property, such as banks, stores, parking lots and elsewhere, and the police plan to beef up surveillance at common areas used by many people makes sense.

Chief Beazley acknowledged the enhanced camera gear will be used at various locations throughout the city.

"If we have a hot spot — there’s crime going on in certain areas — we’re going to be able to take these mobile cameras and surreptitiously (use) them" without the knowledge of those being photographed, he told regional council’s committee of the whole.

Metro has seen a month of violent crime, including three murders. The most recent shootings in the city occurred Friday night and Saturday afternoon. Nobody was killed in either attack.

Saturday’s shooting took place at a house in a residential neighbourhood in Fall River, prompting RCMP to say police are concerned an innocent bystander could get hurt, or worse.

Government proposes to fingerprint before charges

The federal government introduced legislation in Parliament to "modernize" criminal procedure in Canada. What it means, among other things, is that police will get the authority to fingerprint suspects even before charges are laid. Bill C-31 amends the Identification of Criminals Act (but oddly doesn't rename it the Identification of Criminals and People We Don't Have Enough Evidence to Charge Act).

From the DOJ:

Minister of Justice Moves to Modernize Criminal Law Procedure in Canada

OTTAWA, May 15, 2009 – The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, today introduced in the House of Commons an Act to Amend the Criminal Code and other federal legislation, which will modernize criminal procedure and make the justice system more efficient and effective.

“Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it,” said Minister Nicholson. “With these amendments, our Government is taking action to help ensure the safety and security of our communities. It is the latest step in our continuing commitment to tackling crime.”

Proposed amendments in the legislation include:

Creating a new offence to help prevent individuals from fleeing a province or territory in order to avoid prosecution;

Streamlining the identification process in police stations by allowing the fingerprinting and photographing of persons in lawful custody who have not yet been charged or convicted of specific offences;

Improving the application procedure for search and seizure warrants by providing both peace and public officers with greater access to telewarrants;

Enhancing the expert witness process to allow parties more time to prepare their response to expert evidence in criminal matters;

Updating rules related to the use of “agents” (non-lawyers) in criminal proceedings, to provide the provinces with greater flexibility on this issue and ensuring better representation of accused individuals by agents; and,

Expanding the list of permitted sports covered under the current prize fighting provisions, and updating Canada’s pari-mutuel betting system.

“Our provincial and territorial partners have been instrumental in helping us identify and review a number of evolving issues in criminal law across Canada,” said Minister Nicholson. "This bill will increase the effectiveness of the justice system in a number of ways, including giving peace and public officers greater access to warrants relating to search and seizure, and helping address the issue of those who evade justice by travelling to other jurisdictions.”

Here's some media coverage:

Canada wants to fingerprint first - UPI.com

OTTAWA, May 17 (UPI) -- The Canadian government wants to give police the power to fingerprint and photograph suspects who have been arrested and not formally charged.

Justice Minister Rob Nicholson announced legislation Friday, The Toronto Globe and Mail reported. He said that Canada needs to bring its justice system up to date.

"Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it," Nicholson said in a statement.

The Conservative government described the plan as something that would help suspects as well as police by speeding up processing so that they might end up spending less time in police custody.

But one prominent defense lawyer in Toronto opposes the plan.

"Providing fingerprints is self-incrimination and the Constitution protects us from this. The line that is drawn is when you are charged. And to allow police to compel you to incriminate yourself before that moment is open to abuse," Clayton Ruby said.