The unjust deaths of Black people like George Floyd have galvanized protests against police brutality globally, with footage of the police officers involved figuring heavily into public anger and investigations that lead to arrests.
But recording the cops can become complicated, both from practical and legal standpoints: Depending on what is and isn’t in front of the lens, a video may lack what’s needed to hold wrongdoing accountable in a courtroom. During tense encounters, police officers have a history of intimidating members of the public collecting video evidence and demanding they stop, lawyer Karen Selick noted in an Ottawa Citizen editorial.
This is true even for those whose jobs are to cover events as they unfold, as having a press pass doesn’t necessarily make a difference in how police treat reporters. New York City watchdog group The Committee To Protect Journalists lists over 300 violations of press freedom during recent U.S. protests, which include examples of police assaulting and threatening members of the media.
Watch: HuffPost reporter Christopher Mathias details police arrest at U.S. protest. Story continues below.
With peaceful anti-racism protests ramping up in many provinces, what should Canadians know if they see law enforcement using excessive force and want to record them doing so? HuffPost Canada spoke to media lawyer Peter Jacobsen, who serves as a board member for the Canadian Journalists for Free Expression, which recently called on the Trudeau government to condemn police attacks on American media. Jacobsen shared lawful ways to record police encounters while staying safe.
Yes, it’s legal to record police officers in Canada
There is no law prohibiting taking video of uniformed police and, in fact, Pen Canada states that officers who prevent people from recording them are violating charter rights.
As long as you aren’t interfering with a police officer’s duties, you’re within your rights to film or take photos, Jacobsen said. Obstructing an officer is a criminal charge and may lead to jail time or a fine. Stopping an arrest or destroying evidence would also fall under this.
What should I be filming?
If your purpose is to share misconduct, Teen Vogue recommends making sure details that confirm the footage is real are as visible as possible. Continuous shooting in landscape mode with steady hands that capture what cops are doing and identifying details can make footage more recognizably authentic, as well as including landmarks or time-verifying objects like newspapers on stands. Given the pandemic, it’s worth adhering to social distancing as much as possible while shooting in order to reduce COVID-19 spread.
What to say if a cop wants you to stop recording
Although it’s perfectly legal, Canadian police officers have been known to ask civilians to stop recording them in public, sometimes wrongly stating that the act is against the law.
So what should you do in situations where you’re asked to put down your phone or camera?
“The first question you should be asking is, ‘Are you detaining me?’” Jacobsen advised. “If they’re not detaining you, they can only search you with limited powers for safety purposes. If they are detaining you, they have to have reasonable suspicion that you are implicated in a criminal act.”
Canadians who aren’t detained should be free to continue recording or leave, should they choose to. Those who are detained have the charter right to ask why and are under no obligation to talk unless they want to.
Are officers allowed to take my phone?
Unless you’re being arrested and they have a search warrant, police officers can’t take or go through your phone against your will. Police can’t force you to tell them your locked phone’s password either, but have been cleared of doing so at the U.S. border.
“The first question you should be asking is, ‘Are you detaining me?’”
However, there are some exceptions. Police can take and look at phones without a warrant during an arrest if they believe it’s “objectively reasonable,” such as if they think it’s needed to protect lives.
A police watchdog confirmed that Toronto officers engaged in misconduct for intimidating a bystander filming them during a 2017 violent takedown.
As their colleagues were tasering and stomping a man in the city’s downtown core, officers threatened to take bystander Waseem Khan’s phone, which he was using to record.
If a cop insists I stop, what should I do?
While recording is within your legal rights, for your own safety it’s worth being “as cooperative as possible,” Jacobsen said, and comply with requests, such as to give them space.
During protests and public demonstrations, tensions may be high and the power dynamics between law enforcement and citizens are unequal. Jacobsen notes that cops in Canada have a lot of “discretionary power” on the ground.
“To use the vernacular, they [police officers] can just make shit up. They can say, ’You’re implicated for smashing that car window.′ I’m not necessarily saying they would or that they’re all liars. But if you get into hot-head situations, you should de-escalate.”
Once police officers have reasonable suspicion that you’re involved with a crime, which is up to their own discretion, that can lead to problems. “At that point, reasonable suspicion, who defines that? They define it on the spot,” he said.
Going against a police officer’s word is safest done after an incident and having their demands on-tape can make fighting their stance easier.
There are ways to keep recording and comply with cops: If they ask you to move, it’s fair to keep your camera on them from a distance.
It’s also legal to record anyone in public, but not always ethical
People can shoot footage of anyone in public spaces, such as agitators taking advantage of peaceful protests, with little legal recourse for those who don’t want to be seen on-camera. However, as Global reports, harassment charges may be possible if a stranger does it repeatedly.
However, many online have pointed out the potential legal and life-threatening repercussions facing those who are identified on social media or in news coverage.
If your aim is to raise awareness of a protest on social media, minimizing harm by cropping out protesters’ faces is common advice.
Legal counsel is possible if your rights are undermined
Many journalists from major Canadian outlets can count on legal protections provided by their employers to help them fight attempts to subdue press freedom. But most citizens aren’t able to afford the legal fees to fight the police. They may also feel afraid or burdened by the idea of a drawn-out courtroom battle challenging law enforcement.
Still, it’s possible to overcome these barriers for anyone determined to hold injustice accountable, as many ethically-minded lawyers and legal organizations may offer pro-bono help to those whose causes they support.
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