Toronto police can't stop you from filming them, nor seize your phone, lawyer says

The man who captured video of Toronto police officers using a stun gun on a pinned suspect "absolutely" had the right to record that footage, a criminal lawyer says.

Public 'absolutely allowed' to film arrests, so long as they don't obstruct police

Police officers used a stun gun twice to restrain a man accused of assaulting a female police officer in downtown Toronto on Tuesday. A criminal lawyer says the man who captured video of the incident was performing a civic duty. (Alanna Rizza/The Eyeopener )

The man who captured video of Toronto police officers using a stun gun on a pinned suspect "absolutely" had the right to record that footage, a criminal lawyer says.

Police are reviewing officers' use of force and conduct in connection with the Tuesday morning altercation in downtown Toronto, which Waseem Khan shot on his mobile phone and shared with the media.

Khan has since criticized police officers for threatening to seize his phone and warning him to stay back, telling him the suspect — who had been Tasered twice and was being held on the ground by multiple officers — was going to spit in his face and give him AIDS.

Toronto man films police using a stun gun on pinned suspect (Waseem Khan)

6 years ago
Duration 1:27
Torontonian Waseem Khan captured this video of a Toronto police officers using a stun gun on a pinned suspect.
The whole time I'm thinking, "They're going to kill this guy."- Waseem Khan, witness who filmed man being Tasered

Criminal lawyer Daniel Brown said he believes officers were trying to intimidate Khan, who had a legal right to record what was happening.

Brown said the officers' actions toward Khan are "just plain wrong."

"You are absolutely allowed to film police interactions with the public. It is part of our civic duties and responsibilities," he told CBC Toronto, adding that more people should know their rights.

Brown also said the officers couldn't have seized Khan's phone, even if it contained important evidence. As with a store's surveillance camera, he said, police can't just take the device — they have to seek permission to collect the evidence.

Khan told CBC Radio's Metro Morning that he knew the police couldn't legally take his phone, but in the heat of the moment he still stopped recording and went across the street. Khan said he didn't want to lose the footage, in case the man being arrested was seriously injured, or worse.

"The whole time I'm thinking, 'They're going to kill this guy,'" he said.

Toronto police said the suspect wasn't injured during the altercation.

Police association 'disturbed' by comments on video

In the wake of the incident, Both Toronto Police Services and the Toronto Police Association have reaffirmed the public's right to film arrests, so long as the person recording is not obstructing police work.

Officers are told in training that they will be filmed while they're working, and to allow that to happen as long as it doesn't pose a threat to their safety. "Life in 2017 is people will be filming you," said police spokesman Mark Pugash. 

Moments after using a stun gun on the suspect, the officer holding the weapon yelled at another officer to get Waseem Khan, who was filming the arrests, out of his face. (Waseem Khan)

Mike McCormack, president of the Toronto Police Association, said he's "disturbed" by some of the comments officers made during the incident and that those involved will have to answer for their actions.

McCormack said Khan's video, however, captures just part of a "dynamic" situation that played out over several downtown blocks and started with the suspect allegedly knocking a female officer to the ground, sending her to hospital.

He said the suspect then kicked out a police cruiser window near Church and Dundas streets, which led to the officers taking him out of the vehicle.

Khan, who had just arrived in the area, started recording moments later as he saw police officers using force on the suspect, who he said didn't appear to be resisting arrest.

Moments later, a police officer yells at him, "Move back, sir, if you want to be a witness." Later, the same officer yells, "Get that guy out of my face, please," at which point two officers move toward Khan.

One male officer tells Khan the suspect is "going to spit in your face and you're going to get AIDS." Then he was told: "Stop recording or I'm going to seize your phone as evidence and then you're going to lose your phone."

Student journalist Annie Arnone captured this image and several others for Ryerson University's The Eyeopener newspaper. (Annie Arnone/The Eyeopener)

McCormack said the internal review will determine if the officers were in the right or wrong, but said that because Khan at one point calls himself a witness (he also clearly tells police, "I'm not involved in the investigation") the officers may have wanted his footage for their investigation.

He noted other people were also recording the incident.

"I don't agree that this was intimidation. They weren't going up to every person who had a camera out saying, 'Stop filming or we're going to seize your camera,'" McCormack said.

Video holds police accountable

Brown said it's hard to second-guess the actions of police officers who were in the midst of an arrest, but suggested officers should get more training to better deal with situations like this.

Officers always have to look out for their safety, he said, and make sure nobody is making the situation more dangerous, but he said that's not what happened in this case. Instead, Brown said, it looks as if the officers are going out of their way to cover up what was happening.

"It undermines our confidence in the Toronto Police Service," he said. 

Brown said that if he was representing the suspect he would question why the officers were trying to block Khan from recording their actions.

"I would be asking the police, why didn't you encourage the person to videotape?"

He said people should continue recording police — especially until officers have body cameras — to keep officers accountable.