Adam Smolcic alleges that on March 20, 2009, he used his cellphone to record two Vancouver police officers while they shot and killed Michael Hubbard, a homeless man.
The officers involved in the shooting were investigating a vehicle break-in that had taken place five blocks away in downtown Vancouver. Hubbard had the misfortune of owning a black bag, and a black bag had been taken from the car. In the worst imaginable case of mistaken identity, Hubbard was shot and killed, and Smolcic says he captured the whole incident on his cellphone.
Shortly after the shooting took place, while he was still recording, Smolcic alleges that a third officer responding to the scene took his phone from him, deleted the video and told him to “get lost.”
Beyond the obvious concerns about police allegedly destroying evidence, telling an eyewitness to “get lost,” and shooting a homeless man, some readers may wonder what rights Smolcic had with his video, and in what situations the police could seize his phone.
Citizens in Canada have a nearly absolute right to refuse to turn over their recordings to police, but there are three clear exceptions to this rule.
First, if Smolcic himself had committed a crime, when the police were searching him incidental to his arrest, they could take his phone. This is called the “search incidental to arrest” exception.
The second way the police could have taken Smolcic’s phone was if they had obtained a warrant from a judge to seize the phone, most commonly called a search warrant.
Finally, the police could take Smolcic’s phone if Smolcic gave them permission, which is exactly what happened on March 20. Smolcic says the last thing he ever expected was that the police officer would erase his video, and he handed over the phone to be helpful to their investigation.
As for the officer who allegedly erased the video, if Smolcic’s allegations are true, he could face criminal charges in the form of mischief, theft, or obstruction of a peace officer.
The B.C. Civil Liberties Association is working with Smolcic to recover the deleted video with the help of data recovery experts in Vancouver and the United States. In the meantime, citizen journalists should know their rights to avoid ending up in this kind of situation.
– David Eby is the acting executive director of the B.C. Civil Liberties Association and an adjunct professor of law at the University of British Columbia.
