Lawyer David Shellnutt and Christine O’Gilvie, mother of Hasani O’Gilvie, in Toronto, on Feb. 1.Christopher Katsarov/The Globe and Mail
When Dave Shellnutt filed a freedom-of-information request to the Toronto Police Service last year for officers’ notes and body-worn camera footage, he already knew what the video would show.
Mr. Shellnutt, managing partner of Toronto law firm the Biking Lawyer LLP, was representing Hasani O’Gilvie, a Black University of Toronto student who alleges three officers mistook him for someone else, tackled him, put a knee on his neck and tasered him in August, 2021. The video, which Mr. Shellnutt has viewed as part of the police complaints process but cannot legally share or describe, is “horrifying and shocking,” he says, and the public deserves to see it.
While Toronto Police eventually shared the officers’ notes with Mr. Shellnutt, they refused to release the footage, which he says directly contradicts the released officers’ notes. Mr. Hasani’s allegations have not been proven in court.
In a letter to Mr. Shellnutt’s firm, a freedom-of-information (FOI) co-ordinator for the police said the video could not be released because “the responsive records are currently related to a labour matter in which our institution has an interest.”
Mr. Shellnutt is appealing the Toronto Police’s decision with Ontario’s Information and Privacy Commissioner. The case will test the police’s reasoning for withholding the body-camera footage requested under FOI.
Freedom-of-information laws exist at all levels of government in Canada, and provide a process by which individuals can formally request records held by public bodies that would otherwise be inaccessible.
Body cameras have become increasingly common in North America, and are often touted as a police accountability tool. Strapped to front-line officers’ chests, they can record hours of continuous footage.
But as the United States reels from video of Tyre Nichols’s fatal police beating, experts warn that Canadian citizens looking to obtain this kind of footage are likely to face very different challenges from their American counterparts. This is largely because of the broader nature of Canadian privacy law, which allows police forces to withhold videos they may not want released in the first place.
Kirsten Thompson, a lawyer with Dentons who specializes in privacy and cybersecurity, said that American law creates fewer hurdles for the release of this type of information.
“Consistent with the Founding Fathers of the United States, and the hands-off approach to government, they generally don’t legislate unless problems arise,” she said. As a result, there is no general, overarching privacy legislation south of the border. Instead, there are sector-specific privacy laws in the United States, and some states have also passed their own privacy laws.
Ms. Thompson said that under Canadian law, people are entitled to access information about themselves that has been collected by public institutions – with some exceptions. For example, in the case of body-camera footage, an individual should be able to view video of an interaction between themselves and police. However, if there are other private citizens in the video, they may need to be edited out. Or, if the footage is part of an active police investigation, the service may be able to withhold access.
If a third party – such as a member of the media – tried to obtain footage that pertained to an individual and police, they would have a harder time, she said. The video would need to be altered in a way that did not compromise any of the personal information about the private citizen, including their likeness, voice or identifying details.
At least 36 police services in Canada have used body cameras in some capacity in recent years, according to a 2022 analysis by Queen’s University criminology professor Alana Saulnier that surveyed 172 national, provincial, municipal and First Nations policing services. Those include police in Toronto, Thunder Bay, Saskatoon and Medicine Hat, along with the Royal Canadian Mounted Police.
According to Toronto Police deputy chief of information and technology Colin Stairs, the service released body-camera footage in response to FOI requests 37 times in 2021, and 94 times between January and October, 2022. Generally speaking, he said, “this is people requesting videos about themselves.”
Mr. Stairs said videos are also released to lawyers during court cases, and that in some instances individuals have been allowed to view body-camera footage without an FOI request or legal proceeding by sitting down with a desk sergeant.
In the case involving Mr. O’Gilvie, the officers’ notes should not have been released at all, Mr. Stairs contended.
“While no records relating to this matter should have been released, our Access and Privacy Section was not aware of the ongoing nature of the proceedings at the time when notes were released,” Mr. Stairs said in an e-mail. “It was only through the process of collecting the body-worn camera footage that the Access and Privacy Section became aware of the ongoing proceedings and the denial of the record ensued.”
All front-line, uniformed officers at Toronto Police now wear body cameras, he said, and will switch it on whenever they are responding to a call or engaged in an investigation. Some officers now also use it to take video statements, instead of the more traditional handwritten notes. “We’re finding that, generally, front-line officers like the tool because it is an accurate representation of what occurred,” Mr. Stairs said.
The footage is uploaded to cloud servers in Canada at the end of each shift, and is kept for at least two years; this could be longer if the video becomes part of a misconduct proceeding or court case.
Inspector Quinn Jacques of the Tsuut’ina Nation Police Service in Alberta told The Globe that body cameras have been enormously valuable.
“It’s been such a benefit to our police service. I would encourage all police services to move as swiftly as possible to adopt this technology,” he said. “For us it’s been a game changer in terms of being transparent to the public. When our officers are interacting with the public, the cameras are always on, creating an indelible record of the interaction for our community.”
Body cameras instill confidence in the police service, create evidence for court and help the service with training, he said.
Scot Wortley, a University of Toronto professor at the Centre for Criminology and Sociolegal Studies, said that body cameras are “not a panacea,” but could be a useful accountability tool – if the public is able to access the videos.
Currently, police often act as if they own the footage, and this benefits the police services, he said. In some cases, forces have released video that depicts them in a positive light without the permission of the civilians involved in the case.
“There seems to be a definite pro-police policy with respect to when this information can be released,” Prof. Wortley continued. “It’s released strategically, when it supports police interests. But if it makes the police look bad, then that video footage is going to be held back.”
Brenda McPhail, a privacy, technology and surveillance expert with the Canadian Civil Liberties Association, said that Toronto Police’s reasoning for withholding the video – that it was part of a continuing labour matter – was “fundamentally contradictory and a bit hypocritical,” and a “really crafty way” of getting around requirements under Ontario’s freedom-of-information law.
In many cases, people filing FOIs for police body camera footage will be aggrieved in some way, Ms. McPhail said, and those grievances could very well result in internal labour issues for the officers in question.
Mr. Shellnutt believes the video will eventually become public, either through the police complaints process, the FOI appeal or through civil litigation he is undertaking on behalf of Mr. O’Gilvie and his mother, Christine. It will take a while, however: At the earliest, he expects this could happen in early 2024.
Until then, the police will “fight tooth and nail” to hold back the video, he said.
“I think that where body-camera footage is going to damage the reputation of the police, they will fight it at all costs,” he said. “They have unlimited resources to do so.”