Cops, cameras and the Constitution

Too many reporters are detained just for doing their job.

By Alan S. Hale

Payne
Photo of Jason Payne having his arm twisted behind his back in his neighbor’s yard. His left foot is on top of his camera. (Copyright 2009, the Province.)

By Alan S. Hale

The video of Polish immigrant Robert Dziekanski’s tragic death at the hands of the RCMP in Vancouver was not just a wake-up call about police use of tasers. It also sparked a debate about the disturbing trend of police confiscating crime scene film taken by journalists and citizen observers.

The illegal seizure of cameras in Canada is not common, but it is not rare enough to be ignored. When police violate the media’s constitutional rights it is often explained as an error in judgment. But these incidents come at the cost of the media’s ability to hold the police accountable, and the public’s trust in its police forces.

Dunlop’s arrest

On April 13, 2005 Scott Dunlop, then a photographer for the Chronicle Herald, was out in the field when he got a call from the Herald newsroom telling him to check out a car accident involving a RCMP officer in Sackville, an outlying community of Halifax. A driver in a Pontiac Montana did a u-turn across the road, cutting off an officer in an unmarked RCMP sedan.

Unknown member of the Halifax Police Department out in downtown Halifax.
Unknown member of the Halifax Police Department out in downtown Halifax.

“The RCMP officer T-boned her pretty much,” says Dunlop.

Dunlop took up position about 60 to 70 feet away from the accident behind a guardrail along the side of the road, trying to stay out of the way.

The officers at the scene repeatedly told him to stop taking pictures and eventually threatened to take his cameras. He refused. Then the officers gave Dunlop an ultimatum, he would either stop or he would be arrested for obstruction of justice.

“Then I said, ‘Well, you have to do what you got to do, and I have to do what I got to do.’ And I started to take some pictures. They arrested me.”

Dunlop was taken to a police cruiser, where he says, he was asked to delete the pictures from his camera but he refused. Dunlop called the Chronicle Herald newsroom to tell them what had happened.

Dunlop was held about 15 minutes, until the officer received a call from the station, telling him to release Dunlop and return his camera. The RCMP met with editors from the Herald the next day and offered an apology. Len Wagg was the photo editor for the paper at the time and was at the meeting.

“They said it was an error in judgement, heat of the moment, that kind of thing…  Everything that had happened [during the incident with Dunlop] was just done in a poor fashion, and at the end of it I got a sense that they were more embarrassed by what had happened,” says Wagg.

“Putting journalists in the back of cars, or detaining them and taking away their equipment and things like that. It doesn’t happen a lot here in Canada but when it does, it makes the news. So they went from a small little RCMP accident, to [a] national story” says Dunlop.

VPD Camera Incidents
2007 – Ricky Tong, Channel M: Showed up at a police shoot-out at a Shell gas station, located in the suburbs of Vancouver. He was detained on a bus by police after refusing to hand over his video camera. Was released a few hours later after it was arranged for investigators to see the tape as it was being transmitted back to the station.link
2009 – Adam Smolcic, citizen journalist: filmed a fatal shooting of a man by Vancouver police, in downtown Vancouver. Officer supposedly looked at the camera for a few minutes and returned it. Later realized that the video was gone. He believes the officer deleted it before giving back his phone.link
2009 – Jason Payne, the Province: occurred less than a month after the Smolcic incident.
2009 – Caitlin Buxton & Ania Wilczewski, citizen journalists: filmed an police altercation with a man outside a night club in the Gastown area of downtown Vancouver. Were arrested and when released the videos were missing from their phones.link

Payne puts his foot down

A more recent example is that of Jason Payne, a photographer for the Province newspaper, in British Columbia. On April 5, 2009, Payne had finished work for the day. He was at home making dinner when he heard a loud noise and then saw a Vancouver police officer running down the alley. He grabbed his camera and ran out of the house.

“I said, ‘Well what’s going on?’ and (a) civilian said, ‘Well, the police just shot a guy in that parking lot across the street.’”

Payne says as soon as he started taking pictures, an officer told him he had to leave.   “At that point I identified myself as a press photographer and that I was in no way impeding anything that was going on. And I continued to take pictures.”

“(One) grabbed me and I brushed her off saying, ‘Don’t touch me. I’m a working journalist.’ At that point her partner came over, and they both pushed me back across the street.”

Payne retreated to a neighbour’s yard and stopped taking any more pictures. The police demanded Payne’s camera. He refused, placed the camera on the ground and put his foot on top of it.

“I put the camera on the ground in a kind of defiant, body language statement: you’re not going to get my camera. At that point I had nothing to gain other than to get myself arrested and become a martyr.”

Unlike Dunlop, Payne was never arrested, but his camera was seized and returned to him an hour later after police investigators had looked through the pictures and determined they had no value as evidence.

One month later, the chief constable of the Vancouver Police, Jim Chu, issued an apology to the Province for the incident.

“Unfortunately, in the heat of the moment, there were concerns that he was coming too close to a crime scene that had not yet been secured…In addition, the police officer wanted to seize the camera he was using on the belief it might contain photographs of the actual incident… Therefore, I want to apologize for this unfortunate incident and assure you that we are taking steps to ensure such an incident doesn’t happen again.”

The law of law enforcement

It would happen again. The Vancouver Police Department in particular has had a distressing track record of officers seizing cameras from both professional and citizen journalists. This trend caused the Vancouver Police Department to update its policy manual last June to explicitly say that recording equipment such as cell phone cameras required consent of the individual to be seized.

In both cases the respective police forces tried to explain the action of their officers as “heat of the moment” lapses in judgement.

Mary Agnes Welch, president of the Canadian Association of Journalists, sympathizes with the officers and the pressure they work under, but does not accept pressure or inexperience as an excuse.

“I think a lot of times its younger officers just get pissed, and are looking for a way to push back against the attention from any media that have all swarmed onto a scene… Wherever that happens there’s very rarely a directive from the powers that be in a police department to say, ‘Listen guys, it is not cool to interfere with the ability of journalists to do their job,’” says Welch.

David Eby, the director of the British Columbia Civil Liberties Association, sees the matter in a more sinister light. Taking a camera isn’t just a simple lapse in judgement, but an attempt to avoid public scrutiny.

“If you take a look at the results of [the Dziekanski Inquiry], it completely undermined the official version of the RCMP. In terms of what happened you might understand why they would want to control the release of that videotape… So, if you can control the release of the video you can control the dissemination of the story, and it remains limited instead of wide spread.”

A Halifax police cruiser like the one that Scott Dunlop was held in.
A Halifax police cruiser like the one that Scott Dunlop was held in.

According to Canadian law, there are three ways for police to seize recording equipment without a warrant. First is with the consent of the individual. This is what happened with the cell phone video of the death of Robert Dziekanski shot by citizen journalist Paul Pritchard. While he willingly handed over the recording device to police, he eventually had to sue the RCMP in order to have a copy of the footage returned to him.

According to media lawyer David Coles, a second way can be to show that the recording equipment was being used in the commission of a crime. Kevin Brosseau, who is the senior director of operations of the Public Commission for Complaints against the RCMP points out that section 487.11 of the criminal code, allows an officer to take a camera without consent if they reasonably believe that the evidence recorded will be destroyed.

When asked whether or not it was reasonable to believe that a professional journalist was likely to destroy tape before a search warrant could be obtained he said, “In my personal opinion, probably not.”

Eby also believes that it would also be wrong to use this provision on citizen journalists either.

“The motivation of 99.99 per cent of the public when they get this video is to sell it to a news media outlet, or upload it for free to Youtube and distribute it as widely as possible.”

There is concern that after these incidents occur, nothing is ever truly done about them.

“There’s a little apology afterwards, but there’s not much that really changes in a police department in the aftermath,” explains Welch

According to Joe Taplin, the media relations officer for the Halifax Regional RCMP, “Nothing” is exactly what happened to the officer who arrested Dunlop.

“He would have been spoken to and advised that [journalists are] allowed in those areas,” admits Taplin, but says that the RCMP has improved the media training that officers receive since the incident.

Coles points out that the seizure of cameras is a threat to the media’s very ability to function. If the police can simply take, or the media always turns over any stills or footage the police want, the media runs the risk of being perceived as an arm of the state; unofficial evidence gathering. This would make any notion of independent reporting completely impossible.

The unblinking eye

Technology has changed the landscape of journalism in Canada . The tendrils of the Web 2.0 phenomenon have a much farther reach than just grade school essays researched on Wikipedia. Anyone with a camera can find a global audience instantly and it seems that everyone today does have a camera. Digital cameras are now standard feature on almost every cell phone on the market today, making just about everyone an impromptu journalist. And a single bystander’s video, the Dziekanski tape, has already left one police force’s reputation in tatters.

It’s a possibility that police have come down with a bad case of camera shyness, due to a combination of the proliferation of cameras and the realization of what kind of destruction a bad photo or video can bring down on their heads. Payne coined this as “Robert Dziekanski Syndrome,” a fear of finding themselves in the same position that the RCMP and the four officers from that incident now find themselves. The ironic thing about it is that whether it was fueled in part by inexperience or hotheadedness, the attempt to interference with the media, professional or not, can end up becoming an even bigger more embarrassing story.