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Let’s Talk Filming the Police, Allegations of “Obstruction” And Canada’s Charter of Rights and Freedoms

A video is making the rounds of an RCMP member ordering a journalist to be “silent”,  “quiet” and not to “engage” with the police at all while filming ongoing tensions between authorities and logging protests.

As with other cases of police unhappy being filmed while out in public real caution needs to be exercised to ensure they are not infringing on the Charter rights of Canadians lawfully gathering news and recording matters of public interest.

Section 2 of the Charter guarantees various “fundamental freedoms” including “freedom of the press and other media of communication…freedom of peaceful assembly and freedom of association“.

The Supreme Court of Canada has made it clear that “the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference.“.

It is true that members of the public cannot go so far as obstructing police in doing their jobs while exercising these freedoms but numerous cases exist of false allegations of obstruction in order to shut down individuals from exercising their rights.  The following judicial comments from R v. Zarafonitis, 2013 ONCJ 570 are of value on the interweaving of these rights and obligations: 

23      From a public policy perspective it is also worth noting that police officers who generate community disrespect for the police by exceeding their authority not only violate their oath, they put other police officers in danger because widespread disrespect for the police has the potential to engender greater resistance.

24      In the course of submissions, I asked Mr. McKay whether or not the direction to stop photographing was a lawful direction. I eventually got an answer that I take to be the only sound answer to that question: unless Mr. Farkas’s presence or actions were creating a danger to him or others, ordering him to stop photographing was not a lawful command on Mr. Zarafonitis’s part.

25      This is not a trivial matter…..

26      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,9 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.

Police are often not held to account when they unlawfully interfere with individuals exercising their s. 2 Charter rights.  However, a remedy of damages under section 24 of the Charter would not be far fetched.  If someone was stifled while trying to lawfully record police behaviour they could seek a remedy of damages.  The Supreme Court of Canada has held  that 24(1) of the Charter gives a broad discretion to the court to award “such remedy as the court considers appropriate and just in the circumstances” for a Charter infringement. The scope of what constitutes a remedy which is “appropriate and just in the circumstances” was discussed in Ward v. Vancouver (City), 2010 SCC 27 (“Ward”) at para 20 as remedy that will:

1) meaningfully vindicate the rights and freedoms of the claimant;

2) employ means that are legitimate within the framework of our constitutional democracy;

3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and

4) be fair to the party against whom the order is made.

The steps of the Ward test for Charter damages was summarized in Henry v. British Columbia (Attorney General), 2015 SCC 24 as follows:

The (1) first step in the inquiry is to establish that a Charter right has been breached. The (2) second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the (3) third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The (4) final step is to assess the quantum of the damages.

Individuals who are shut down from exercising their “fundamental” section 2 rights are not without recourse.  And police should remember this when exercising their duties.