OPINION: Freedom to photograph in Canada is under threat

By William Kowalski for PEN Canada


By William Kowalski for PEN Canada


In any society where the police, military or government hold inordinate power over the people, there are restrictions on the right to take and publish photographs, especially when those pictures prove embarrassing or incriminating to those in charge. One sure measure of a society’s freedom is how its leaders react to such images. If the photographers go unpunished, that society is probably a relatively free one. If they go to jail, it definitely isn’t.

The situation in Canada has reached the point where it needs to be said loudly and clearly: there is no law against public photography in Canada; no one here can ever be arrested for the simple act of making a picture or film, unless other laws are being broken in the process; and police officers who are in uniform and executing their duties in public have no reasonable expectation of privacy.

In 2010, National Post photographers Brett Gundlock and Colin O’Connor were arrested during the Toronto G20 protests while attempting to photograph aggressive police crowd-dispersal tactics. They were never accused of anything except being “amongst violent people.”

In September of 2012, 16-year-old Jakub Markiewicz was detained by security guards and arrested by police after filming the violent takedown of a man by security guards at Metrotown shopping mall in Burnaby, B.C. Markiewicz was ordered by the guards to delete his footage, but since he was using a film camera, he could not comply. After Markiewicz took a second picture of arriving RCMP officers, he was physically attacked and restrained by security guards. At their request he was then handcuffed by police. Markiewicz was ultimately arrested for causing a disturbance. He was never officially charged.

On March 26, 2013, a Montreal student named Jennifer Pawluck, 20, an active protester with no criminal record, discovered some graffiti depicting police spokesman Ian Lafrenière with a bullet hole in his head. She took a picture of the image and posted it on Instagram. She was charged with uttering threats against Lafrenière.

On June 2, 2013, Star photographer Alex Consiglio was arrested at Union Station, put into a headlock, and charged with trespassing after he photographed police officers who were dealing with a disturbance on the tracks.

What do all these photographers have in common? None of them were breaking any laws at the time of their arrest.

The most glaring example of why public photography is important is the case of Robert Dziekanski, the Polish man who died after being Tasered by RCMP officers at the Vancouver airport in 2007. Dziekanski’s tasering and subsequent collapse was filmed by Paul Pritchard, who surrendered the video to police with the understanding that they would return it to him in 48 hours. When they did not do so, Pritchard initiated a lawsuit against them. The video was ultimately returned.

Partly as a result of its existence, the RCMP eventually admitted that they had misled the public in several statements about the Dziekanski incident. They issued an official apology for their actions and agreed to a financial settlement with Dziekanski’s mother. All four officers involved were formally accused of having lied in notes and statements about what happened that day. Without the existence of the Pritchard video, it is certain that the outcome of the investigation would have been different.

At PEN Canada, a non-partisan organization of writers that seeks to defend the right to self-expression at home and abroad, we are watching incidents like this closely. A recent blog post on the issue at PenCanada.ca received almost 6,000 hits within three days, highlighting the fact that many Canadians are also concerned. Canadians should know that they have the right to take pictures anywhere in public, as long as they are not breaking any other laws. At no time can anyone be arrested for the simple act of taking a picture.

We don’t recommend aggressively photographing police officers just because you can. We urge restraint, decorum and good judgment. But we also urge everyone to remember that a well-photographed society, which is what we have become whether we like it or not, has the potential to be a good thing, not just an Orwellian nightmare.


William Kowalski is a member of the PEN Canada National Affairs Committee. He is also the author of The Hundred Hearts, published by Thomas Allen, and seven other books. Kowalski lives with his family in Nova Scotia. 

This article was published in the Toronto Star as an op-ed piece and has been republished here with permission. It is a summary of a longer and more detailed blog post on PEN Canada titled "Public Photography is Not a Crime."