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When the cops break the law

By | National Post on Nov 16 2015

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Photo Courtesy of SPBer under CC BY-SA 3.0

Which do you think is worse: police officers who don’t know the law, or officers who know the law but deliberately ignore or even mock it?

That question has been on my mind since I saw the video made by Mike Miller, who observed two police officers making an arrest in broad daylight in a Toronto parking lot on Sept. 14. The video, which was published online by the Toronto Star on Oct. 27, shows a police cruiser with two officers standing beside it, apparently arresting two men whose faces have been deliberately blurred by the video editor. Another cruiser pulls up and two officers emerge. One of the officers from the first cruiser points at Miller and says to the new arrivals, “Could you turn the camera on that guy over there?”

I expected the new arrivals to return to their cruiser, pull out another video camera and train it on Miller. But they didn’t. Apparently I didn’t understand the code words used by the first officer, but the two new guys did. They knew he was not asking them to film the videographer; he was asking them to prevent the videographer from recording.

The two officers (identified by the Star as constables Brian Smith and Shawn Gill) crowd in on Miller, asking why he is videoing. “’Cause I have the right to,” Miller correctly responds. He was obviously aware of the recurring incidents throughout North America where police have wrongfully attempted to intimidate citizens into turning off their cameras.

But Smith and Gill continue to advance, questioning Miller and advancing towards him, forcing Miller to walk backwards. They got so close that their bodies filled the camera lens, preventing Miller from capturing the events continuing in the background. He asks them to “get out of my personal space” but they don’t back off an inch. In fact, they acknowledge verbally that he has the right to record in a public place, while Smith waves his hand directly in front of the lens for several seconds. His intentions are clear: he’ll pay lip service to Miller’s right to record, while actively preventing him from exercising it.

Miller found the experience daunting. Who wouldn’t? Yet at the same time, the officers’ behaviour was downright childish. Did it never occur to them that they shouldn’t be caught on camera flagrantly violating a citizen’s rights?

A police spokesperson later told the Star that the individuals being arrested were 15- and 16-years old and “their identities are protected by law.” But this is a pathetically lame excuse for the officers’ conduct. The Youth Criminal Justice Act prevents people from publishing identifying information about youths involved with the law, but not from recording it. Smith and Gill had no reason to believe that Miller would break the law by publishing identifying information. When he and the Star did eventually put the video online, they protected the youths by blurring their faces.

But even more egregious, in my mind, is that Smith and Gill seem completely oblivious to the notion that they themselves were probably performing a criminal act. Accosting and intimidating someone, even if you don’t lay hands on them, can constitute an assault. Section 265 of the Criminal Code says you’re committing assault if you attempt or threaten, by an act or gesture, to apply force to someone, if the victim has reasonable grounds to believe that you have the present ability to apply that force. Furthermore, if you’re openly wearing a weapon — and both officers were wearing sidearms — then it’s an assault merely to accost or impede someone. It will be interesting to see whether they are charged.

But someone also needs to investigate the first officer, the one who asked Smith and Gill to prevent the scene from being filmed. Why did he expect the other cops in his unit to understand his murky request?

The Toronto Police Service says its officers know they can be filmed by the public. But it appears they need a refresher course, one that tells them, “We really mean this.”

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