Spectator photo ruling “patronizing”

By Dean Jobb

Memo to the police: Next time, bring your own cameras.

A judge has authorized the seizure of 170 photos from the Hamilton Spectator to help the Ontario Provincial Police (OPP) prosecute native protestors who threatened officers in the latest violent flare-up at Caledonia.

Why such a blatant intrusion on the media’s right to gather news? Well, turns out it’s for our own good.

Spectator reporters and photographers, who have been covering the land-claims drama at Caledonia for more than two years, “have been the subject of attacks by protestors for some time. Protesters have stolen a camera and forced a photographer to delete photos,” Justice James Ramsay of the Ontario Superior Court of Justice noted last week as he authorized the seizure.

“Obviously, in the mind of some of the protesters the presence of photographers is a threat to their ability to break the law. Seizure of the photos by warrant would not change this. A successful prosecution of those involved in the attack on the police could only have a beneficial impact on the safety of the (Spectator’s) personnel.” 

Patronizing? You bet. A reasonable compromise between the media’s rights and the need to identify and prosecute criminals? Not on your life.

The law does not protect news photos and videotapes from seizure by police, but there are limits. The seizure must not interfere with a media outlet’s ability to report the news – for instance, by taking the only available copies of an image.

Judges also consider images that have been published or broadcast to be fair game for seizure. And police are not required to exhaust all other possible sources of evidence before resorting to a search warrant on a newsroom.

In this case, the Spectator only published 16 of the 170 photos taken during a confrontation between OPP officers and protesters last April. Yet Justice Ramsay approved the seizure of unpublished images as well.

The most troubling aspect of the ruling is whether there were other sources of evidence – and whether the police even need the photos.

The search warrant served on the Spectator discloses that officers involved in the incident have already viewed a photo lineup and identified the driver of an all-terrain vehicle who made threats and tried to run down two policemen. Several motorists who witnessed the incident were seen taking photos with their cellphones but it is not clear whether police have made efforts to locate them to obtain those images.

Despite this, Justice Ramsay concluded “it is difficult to conceive what other source (of evidence) could have existed.”

Not really. There were at least a dozen officers on the scene. If police put so much stock in photographic images, perhaps they should arm themselves with cameras.

“We’re not agents of the state,” Spectator editor-in-chief David Estok said in May, when the photos were seized. “It is not our job to collect information for the police.”

The courts should not force the media to become a proxy for the police. Taking news photos at a volatile protest is a risk journalists are willing to take, and they don’t need judges to tell them what’s in their best interests.

The court should expect police officers take their own risks – and take their own photos.

J-Source Law section editor Dean Jobb teaches journalism at the University of King’s College in Halifax and is author of Media Law for Canadian Journalists, published by Emond Montgomery.