Police Body Cameras: Problems with the Presumption of ‘Good Discretion’

pro bono 14

Fredericton police started a 90-day body camera project this past week. Six members of the police force, 3 Traffic Safety officers, and 3  of the Primary Response Team, will be equipped with these cameras.

Deputy Police Chief Martin Gaudet affirmed the project will assist police in evidence collecting, increase officer accountability, and also help deescalate situations since people will be informed that they are being recorded. The Chief hopes the effect of this program will increase police safety, and convey transparency to build public trust.

One volunteer for the project, Const. Patrick Small especially liked the project because it will make evidence gathering easier, which as an effect will make it easier to mount evidence against individual’s in court, and also allow them to debunk or legitimize any complaints that come in. I get a sense that the convenience these cameras will bring to Const. Patrick Small’s job is empowers him and his colleagues, yet may expand the public’s feeling of incarceration since these cameras will add to the machinery of surveillance in this country. Put in a less melodramatic and inflammatory way, these cameras have the capability to place limitations on our freedom.

Let’s not be so quick to despair. As members of the public we should have more confidence that police will be more self-aware in abiding to the legal standards of police powers, and will be held accountable for any failure to meet this standard, since of course, their conduct is also under surveillance.

In implementing this project, police are left to their own ‘good discretion’ to choose when and when not to record investigations. Pump the brakes! Intuitively, you should be thinking this as a red flag, and allow me to affirm your intuition because it is suspicious, so let me break it down.

First of all, let me begin my explanation with caveating what I think of this program – that it uses paranoia as a tactic for people to co-operate with the police. It also furthers the imbalance of power between police officers and the public, emphasizing the perspective of the police officer over the perspective of the individual, which makes it easier for the police to present a case in court while weakening the ability to craft a defence. Since we have not seen these cameras in action yet, here is a hypothetical that exemplifies the type of power imbalance that it creates.

A robbery occurs at a local gas bar in Fredericton. The thief holds the clerk at knifepoint, and then flees the scene, but the gas bar employee catches a glimpse of the getaway car pulling out of the parking lot. When she reports the robbery, she also gives a description of the car. While on patrol, a police officer wearing the new body camera sees a car matching the getaway car’s description, and before proceeding to pull the car over, turns on his camera so everything is caught on tape. As the officer informs the driver their interaction is being recorded, the officer questions the driver, and quickly notices a knife on the passenger side floor of the car. The officer begins questioning the driver about the knife, and the driver does not give a sufficient answer, so the police officer places the suspect under arrest. After reading the suspect their rights the police officer turns off their camera and begins questioning the suspect where they incidentally make a self-incriminating statement.

This fact scenario shows the benefit of the body camera for police, who videotapes the description of the vehicle, the knife in the car, and also the suspect’s inadequate answer to why the knife – all evidence that will be used against him in court. At the officer’s ‘good discretion’, he decided to turn off the camera just before violating the suspect’s 10(b) Charter right. Section 10 pertains to rights of individuals who the police arrest or detain, section 10(b) reading:

Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right.

I based this hypothetical on a case called R v Manninen [1987], where the Supreme Court acquitted the accused since the fairness of the trial fell into disrepute because the self-incriminatory evidence police used against him was a result of the denial of the right to counsel. The court in that case interpreted s. 10(b) as imposing two duties on police officers: first, they must give a detainee a reasonable opportunity to obtain and instruct a lawyer without delay, and to cease questioning until the detainee has a reasonable opportunity to obtain and instruct a lawyer.

So while the suspect in my scenario would be acquitted of any charges because the officer infringed his Charter rights, it still raises the question the court asked itself in Manninen, “is this fair?” An officer’s use of ‘good discretion’ can still distort what happens because the officer chooses what gets recorded. If one of the goals of the Fredericton police is to be more transparent, then they should be more candid in their explanation as to why they think this method of implementation is the best way to gain the public’s trust. Wouldn’t abandoning the ‘good discretion’ policy and simply letting the camera record everything be a more fair and holistic approach?

Don’t get me wrong, I realize being a cop is a tough and thankless job that does not get enough respect, and instead people often treat cops with scorn and contempt for just doing their jobs. I am not criticizing police officers, but I am criticizing the way they chose to implement this program. The power of control cops have in getting to choose why and when to record investigations allows them to develop a one-sided narrative that will be harder to argue against because the optics of being able present real tangible evidence in comparison to an accused’s testimony is persuasive. This suppression of the public perspective seems totalitarian to me. For the next 90-days, six police officers in Fredericton will get to act like a director in their own movie, the only restraint against their judgement being a presumption of ‘good discretion’.

As a cautionary word of advice: keep the cameras rolling.

 

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.