The videos of the shooting, taken by YouTubers “Marko G,” Martin Baron, and later, of the aftermath, by “CaplinGrey,” made it to social media without interference from police, perhaps because they were shot from a distance, in the shadows.
But legal experts say that even if the videographers had been standing closer to the scene, they had every right to record those pictures without fear of confiscation of their cameras or intimidation by police.
That’s because there is no law, says Halifax-based lawyer David T.S. Fraser, that stops citizens from taking photographs or video in a public place. That includes shopping malls, airports, retail outlets and subway stations — unless management, not police, prohibit photography.
“I think it’s as close to an unequivocal right as you can get,” insists Fraser, whose practice focuses on privacy legislation. “As long as you’re in a public place, as long as you are not obstructing the police in the execution of their duties, and as long as you are not creating new risks and dangers, then you have the right to photograph and video-record anybody, including the police — and I would say especially the police. They are public servants, they are there exercising their duties and they should expect to be subject to scrutiny and accountability in doing so.”
Which may be easier said than done, Fraser admits, when faced with “a big burly cop” demanding your camera, insisting that you delete images, or ordering you to stop recording because you are “obstructing justice.”
“Obstructing justice is an offence under the Criminal Code, so it’s ultimately up to a judge or a jury what obstructing justice is,” explains Fraser. “You have to actually intend to obstruct — not just be on the sidelines, but actively interfere.
“The problem is that very often people are arrested for it, their cameras are taken away and then the charges are dismissed. So ‘obstructing justice’ is often used as an intimidation tactic. It’s a significant abuse of authority.”
Carleton University criminologist Darryl Davies maintains that police officers had better adjust to the proliferation of citizens with cameras. In fact, he feels that shoulder-mounted videocams should become part of an officer’s uniform.
“I teach a class in criminology called Challenges Facing Police in the 21st Century,” he explains. “I tell my students in that class, if you’re joining a police force after graduation, you should conduct yourself, when you have an interaction with the member of the public, as though there were a video camera on your shoulder recording everything you say and everything you do. That will ensure that you will conduct yourself according to the law.”
Fraser believes that, until shoulder-mounted video cameras become standard issue, it’s up to citizens to keep police forces honest.
“I would call for citizens to take more pictures of police officers, to make it more normal and make it more difficult for police officers to intimidate individuals,” he said.
The question is, how much does video count in a courtroom?
“There likely is little doubt that video or photos captured by bystanders in a public place would be admissible in court,” Fraser says. “There can still be questions about its authenticity and reliability but, just because it was taken by a witness, would not affect the admissibility. It may even be considered more reliable since it was made by someone who was not involved in the altercation. Even a recording made in a private place or covertly would likely be admissible, since the test is generally whether admitting the video into evidence would bring the administration of justice into disrepute.”
But retired CTV National News videographer Brian Magee, who has covered everything from Mexican shout-outs to Russian military standoffs, worries that budding i-journalists might find themselves up too close and personal, both with cops and conflicts.
“It takes time to build the instinct to cover volatile fluid situations,” he advises, via an email to the Star. “You need to be aware of not just what you see through the lens/screen, but what is around you (and) to try and anticipate what may be coming, have a take-cover plan and an escape route.
“That’s what zoom lenses are for,” he continues. “These fixed phone lens leave you with an impression of distance when you are closer than you think. If the poor kid had a gun, it could have escalated to a full shootout.”
Professionals are also more likely to know their rights when faced with police demands, plus they have media organizations to back them up, says Davies. He advises that citizens be as polite and respectful as possible, and calmly inform the police officers who may be demanding that they stop shooting footage that they are aware of their rights to continue recording in a public space — and that they may file charges of illegal search-and-seizure if it comes to that.
“We have to stand up as citizens and protect our civil liberties,” he says. “We have to ensure that police officers are held accountable.”
Concludes Fraser, “I would recommend that people take more photos of the police. Constitutional rights, like muscles, can atrophy if they are not used.”
Original Article
Source: thestar.com
Author: Antonia Zerbisias
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