The following is not to be construed as legal advice. For expert advice, consult a lawyer, barrister, or solicitor who is qualified to answer your questions on this subject.
The news has reported that law enforcement officers are now sporting cameras on their vests which will record the actions of the police thereby removing any question as to what an officer may or may not have said or done at any point during his or her shift. While many have lauded this move by police forces across Canada, there are many more who remain unconvinced that this will curb the disputes that arise from “we say, they say” confrontations.
I have yet to find a law in Canada that prohibits recording on public property, and this includes recording situations where police involvement occurs. In other words, if it happens on public property, the expectation of privacy is vacated, even for law enforcement.
Difficulty arises, however, when people don’t understand the difference between public property and publicly owned property. Publicly owned properties such as hospitals and court houses have policies that regulate audio and visual recording, and while the property may be paid for with taxpayer money and accessed by the general public, that doesn’t automatically make it public property.
Likewise libraries may have similar policies in place. And believe it or not, even cemeteries may have similar policies in place that prevent audio and visual recording of live people or tombstones!
It is legal to take, publish, and sell street photography without the consent of those whose image is in the photos when said photos are taken on public property. It is unlawful to take photos on publicly owned property even if you have the permission of those who image is in the photos.
It is not legal to stand on public property and extend a recording device over publicly owned property that enforces a policy that prohibits recording or over private property. Is it legal however to stand on one’s own property and record onto private property that is in close proximity to one’s own property.
In other words, it’s a confusing world when it comes to what and where recordings can legally be done.
Suppose you are standing on public property and you see police action unfold before your eyes. You may feel the need to record what you are witnessing, and you whip out your smart phone and begin recording. You may very well be within your legal rights to do so.
But there is something you need to remember in recording such a situation.
The police have a right to order you to surrender your recording device to them and in recording the action, you could become a compellable witness in any legal actions or disciplinary hearings.
You could receive a subpoena to appear in court on several occasions and even though you are neither the plaintiff nor the defendant, you will have to present yourself in court or at a hearing as many times as you are ordered to appear in court or at a hearing. What’s more, since your recording device aka smart phone will be introduced as evidence in court or at a hearing, you won’t have access to your smart phone until the case or hearing has concluded.
Do you have any idea how long you could be without your smart phone? A very long time. Months. Perhaps even a year or two.
Am I saying you shouldn’t get involved or that you shouldn’t record incidents? I’m not saying that at all. What I’m saying is that what you think is the law and what is the law may not be the same thing, and in the end, it’s up to you to decide how much of a chance you’re willing to take on losing your recording device should you feel compelled to record the action.