At one point during the recent tragic encounter between Sandra Bland and trooper Brian Encinia in Texas during a traffic stop that ended with her death in a jail cell, Bland attempts to film the exchange of words between the two of them on her cell phone. Encinia then demands that she “get off the phone.” Bland responds by insisting that she has “a right to record,” After Encinia yells, “PUT YOUR PHONE DOWN!” multiple times as the tension escalates, Bland eventually complies.
If this exchange had happened in Canada, would Bland have been correct in asserting that she did in fact have a “right to record” the police officer during the course of that traffic stop? The answer is probably yes.
It is “probably” yes because there is little question that as a general proposition, Canadians have the right to film police in public. There is no law in Canada that prevents a member of the public from taking photographs or video in a public place generally. There is also no Canadian law that prevents a member of the public from taking photographs or video of a police officer executing his or her duties in public or in a location lawfully controlled by the photographer.
As such, an individual filming a police encounter with a third person will almost always be within their rights to make a video of the incident, so long as they are not interfering with the officer’s lawful execution of his or her duties. The act of making a video is not, in and of itself, interference with an officer’s execution of their duties, and a police officer cannot take your phone or make you show any contents of your phone simply because you were recording their activities.
The trickier issue is when an officer is making a lawful arrest of the person who is doing the filming. At some point, the officer’s demand to put the phone down will need to be complied with. Even if an officer is wrongfully threatening to arrest you just for filming him or her, resisting at that point is ill-advised
The bottom line is that you as a Canadian citizen have a right to film police and record their conduct so long as you are not interfering with the performance of their duties. That right likely ends at the moment you are arrested, however, and have been ordered to cease recording by the arresting officer.
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