To film or not to film: be smart before you start


Filming police encounters has returned to the front pages of newspapers across North America since videos of police shootings – of Alton Sterling in Baton Rouge, La., and of Philando Castile in Falcon Heights, Minn. – went viral in the past few weeks. Both videos were shocking and caused significant public outrage. Both videos show “the-worst-case scenario” of what can happen when a police encounter goes awry and how valuable video footage can be.

 

Consider now what you might do if you were stopped by the police and what actions you could take.

 

The moment you are asked to pull over or taken aside for questioning by a police officer, the immense power imbalance between you and the officer becomes apparent. If you don’t cooperate, you may be arrested. If there’s a disagreement later about what happened, the justice system is generally inclined to accept the official police account. People have been turning to recording encounters with police to ensure there’s an objective account to reference later. Most police cruisers are equipped with video-recording technology too, but –with the ease and accessibility of smartphone cameras – self-recording has become an important additional safeguard. Most of us go about our routines without expecting to run into the police. Most interactions with police are unexpected and unsolicited. So, plan ahead. Consider now what you might do if you were stopped by the police and what actions you could take.

 

Photography is a form of power. It can assist you to “level the playing field.” It can corroborate your version of events and it can also back up officers who acted properly. So what do you need to know if you are considering filming the police?

 

First, know that there is “no sweeping authority in Canada to prevent taking pictures or video or to confiscate devices” (“Watching the watchmen,” Ottawa Citizen, 23 August 2012). Nothing in the Criminal Code prevents you from filming your – or someone else’s – interactions with the police, provided those interactions take place in public.

Second, play by the rules. It is reasonable to expect that any person being filmed would be on his or her “best behaviour” – this might include enforcing the letter of the law. So make sure you are on “the right side of the law”: be on public property – do not trespass; stay on the sidewalk – do not block traffic flow; listen to what the officer says and do what he or she says. Obey any orders the officer gives you. If you are not immediately involved in the interaction, do not interfere or obstruct the officer. That said, you can clarify orders and, if you are at all in doubt, you can ask if you are being detained.

 

While you should not be told to stop filming, know that you might be.

 

Third, be polite. Be courteous. Be respectful. Stay calm. Be upfront about the fact that you are filming. Don’t record in secret. There are many ways to make a video on a smartphone but if you are filming the police, remember not to make sudden or threatening movements. Do not pull your phone out of your pocket and quickly move to point it in front of you – this could be seen as threatening and your phone could be misconstrued as a weapon, potentially putting you in unnecessary danger and inadvertently escalating the encounter.

Fourth, while you should not be told to stop filming, know that you might be. How you choose to deal with that situation is up to you – and what risks you are willing to take. Know that you are allowed to videotape encounters with the police that take place in public places – don’t let the fear that you might be breaking the law by videotaping the interaction make you put your camera away. Jay Stanley, a senior policy analyst with the American Civil Liberties Union, suggests clearly stating that there is nothing preventing you from filming and continuing to record (“Know Your Rights: You Have Every Right to Photograph that Cop,” ACLU, 7 Sept. 2011). Similarly, in Canada, you can calmly say that there is no law preventing filming the police in Canada and there is no way for the police to prohibit filming. That said, responding in this way could intensify your interaction with the police and it contradicts the advice to obey any orders that the police officer might give you – conceivably up to you being arrested and charged. As much as possible, it’s important to be aware and prepared for this – and your personal comfort-level with that possibility.

 

If you are charged, detained, or arrested after filming – in regards to filming or otherwise – your phone could be searched as part of a search incident to arrest (R. v. Fearon, 2014 SCC 77). Keeping your phone locked when not in use is a good place to start ensuring your security – from anyone who might come into contact with your phone. Do not give your pass-code to police – this is never required. Remember too that you have the right to consult a lawyer and the right to remain silent – use both.

 

If you are concerned about footage being deleted from your phone (this is illegal and could lead to a separate criminal charges, though the burden of proof would be on the person trying to establish the chain of events), consider using live-streaming apps like Facebook Live, which Diamond Reynolds used to film and instantaneously stream what happened after she and her boyfriend, Mr. Castile, had been stopped by the police in Minnesota.

 

Other tips, if you decide to film an encounter with the police, include: begin filming right away – don’t wait until an interaction escalates to pull out your phone, capturing as much of the encounter as possible will provide more background later; keep enough space on your phone at all times to allow you to make a video; hold your phone at waist level, in front of your body, with both of your hands, so as to appear less threatening; stay calm, no matter what.

 


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About Katrina Trask

Katrina Trask is a graduate student at the University of Toronto’s Faculty of Law. Prior to beginning her graduate studies, she was a legal research lawyer at the Newfoundland and Labrador Court of Appeal. Katrina’s undergraduate and law degrees are both from the University of Manitoba.