Public Photography, the Police and Our Rights1

Consider the following fact pattern:

At the corner of Queen St. W and University Ave., a bystander films a police officer in

the process of detaining a suspicious person under investigation. The officer

demands that the bystander stop filming, delete the video and/or hand over the

recording device, with said demand possibly including a the threat of detention or

arrest.

This scenario is commonplace in a world of ubiquitous smart-phone ownership and inexpensive

digital recording technology. Yet, how many people are able to articulate the bystander’s legal

rights and responsibilities? Must they acquiesce to the officer’s demands? Have they violated

any law(s)? Are they under an obligation to say anything to police, or can they remain silent and

walk away? It is likely the case that most people (and most lawyers, including this author) cannot

accurately answer these questions. Hence, the purpose of this article is to clarify the extent of

our rights in these types of situations.

Before proceeding any further, however, this author wishes to state an assumption underlying

this article: our fundamental freedoms are the linchpins upholding a free and democratic society.

This is true irrespective of one’s political leanings or moral position on power balance between

“the State” and its citizenry. We are granted these rights by legislative decree, but it is by

legislative decree only, for solely through their exercise do they acquire meaning. So, with that

out of the way, let us proceed.

Our rights and responsibilities in the context of capturing pictures or videos in public places have

their roots both in the Canadian Charter of Rights and Freedoms, and in federal and provincial

privacy legislation.2,3 For the most part, these bodies of law also govern important aspects of how

we interact with police.

Subject to certain privacy and intellectual property law exceptions, generally Canadians have the

right to:

photograph or film in any public place;

photograph or film in any private place open to the public, unless otherwise prohibited by

signage or told to stop by the owner;

photograph or film in any government site other than restricted access areas (marked by

a recognizable perimeter or otherwise monitored);

1 This article does not contain legal advice and is intended solely for information or entertainment purposes. No solicitor-client relationship is formed by your acceptance or review of this article. 2 A discussion of constitutional and privacy law is the scope of this short article. However, it suffices to say that, in this type of situation, relevant Charter rights include the fundamental freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication (Section 2(b)); the right to life, liberty and security of the person and the right (“Life, liberty and security of person”, Section 7); the right to be secure against unreasonable search or seizure (“Search or Seizure”, Section 8); and, the right not to be arbitrarily detained or imprisoned (“Detention or Imprisonment”, Section 9). See The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11. Available at http://canlii.ca/t/ldsx. Retrieved on January 21, 2014. 3 Relevant privacy legislation includes the Privacy Act (R.S.C., 1985, c. P-21), the Access to Information Act (R.S.C., 1985, c. A-1), the Freedom of Information Act (R.S.O. 1990, C. F.31), and the Personal Information Protection and Electronics Documents Act (S.C. 2000, c.5). Certain rights to privacy trace their roots to Charter rights, i.e. section 7: the right to be secure against unreasonable search and seizure (emphasis added).

photograph or film police officers in public, provided that you do not interfere with the lawful

exercise of their authority.4

These rights will often not apply in private places; similarly, they do not include the right to

commercialize, distribute or otherwise exploit pictures or videos without the necessary

permissions (e.g. consider the implications of uploading pictures or video to social media

platforms).

When dealing with police officers, our rights include (assuming you are not being detained or

arrested):

the right to remain silent and not speak with police, even if you are a witness and not

charged with an offence or otherwise involved in an investigation;

the right to be secure from a police officer ordering you to unlock your phone to show them

images or video;

the right to be secure from a police officer ordering you to delete any images or videos.5

These Charter and privacy rights attach to us not only because we are Canadian, but also by

virtue of our very personhood. While we may choose not to exercise them, it is important to

remind ourselves that they are there for us when we need them, and that it is a mistake to take

them for granted.

For more information on this and other issues, please consult the website of the Canadian Civil

Liberties Association. The CCLA publishes an excellent guidebook entitled “Know Your Rights: A

Citizen’s Guide to Rights When Dealing with Police”.

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Andreas Kalogiannides is Toronto lawyer practising in corporate and intellectual property law. He

may be reached at andreas@kalogiannideslaw.com.

4 “Photography is no crime”. PEN Canada pocket guide. Available at http://pencanada.ca/wpcontent/uploads/2013/06/Photography-Know-your-rights-poster.pdf. Retrieved on January 20, 2014. 5 Ibid. See also the Canadian Charter of Rights and Freedoms, Section 8 “Search of Seizure” and Section 9 “Detention or Imprisonment”. For case law concerning the right to be free from arbitrary detention, see R. v. Mann (2004), 21 C.R. (6th) 1 (S.C.C.).