Canadian law enforcement agencies have been rolling out body-worn cameras requiring police officers to record all interactions with the public in the course of their duties with an exception that allows for deactivation when directed by a supervisor. A recent ruling from the Ontario Superior Court of Justice has highlighted an emerging tension between law enforcement transparency and investigative practicality when undercover officers are engaged in covert tactics. But just where the judiciary will ultimately draw the line is yet unknown.

1. Introduction

On August 21, 2023, Tenzin Palden was arrested for possession of 34 kilos of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. (here) Officers with the Toronto Police Service were engaged in a major drug squad investigation that began with confidential informant information that Lucho Loder was trafficking drugs in kilogram quantities. During surveillance of Mr. Loder, the police saw him “retrieving and exchanging bins, bags and suitcases with other individuals including Camron Longmore, Bryan Sheritt and Shane Smith-Thomas.” The observations led to Mr. Palden’s arrest because the police believed he had met with Mr. Longmore for the purpose of obtaining a large quantity of drugs. When the arresting officers arrived on the scene they were instructed by a superior officer not to turn on their body-worn cameras until they had Mr. Palden in their custody. That decision generated an evidence exclusion motion by Mr. Palden asserting that his rights under s. 7 of the Charter of Rights and Freedoms were violated because “it was a deliberate, calculated attempt by the drug squad to subvert TPS policy, and intentionally created an incomplete record of the police conduct.”

2. Background

The body-worn camera policy of the Toronto Police Service requires that officers record any contact with a member of the public, a statement that would normally be taken in the field and any interactions with persons in custody. The policy also provides that a body-worn camera can be stopped, muted, or repositioned if “directed to do so by a supervisor”. The officers stood by for approximately nine minutes with their cameras off until Mr. Palden was turned over to them. Both officers then turned their cameras on and Mr. Palden was read his Charter rights and the police caution. The entirety of the police interaction with Mr. Palden from that point on was video and audio recorded. It was argued on the motion that the TPS drug squad has a policy to direct uniformed officers to either turn off or not turn on their body-worn cameras. But the evidence of the officers was that “it depends on the circumstances”. In some situations an instruction can be given to ensure that covert officers are not recorded. On January 24, 2025, Justice Jennifer Penman issued the ruling indexed as R. v. Palden holding that Mr. Palden’s s. 7 Charter rights were not violated. (here)

3. Ruling on the Motion

Although the TPS policy only addressed situations where a superior officer directs that cameras be “stopped, muted, or repositioned”, Justice Penman held that “the spirit of the policy exception” is the same in circumstances where the direction is to not activate the cameras at all. The applicant relied on R. v. Azfar where officers muted their cameras “specifically for the purpose of withholding from the defence information about [their] observations of Mr. Azfar” in the context of an impaired driving investigation. The Ontario Court of Justice found that this constituted part of the investigation, consisted of information that would have been disclosed to the defence and was thus a violation of Charter s. 7. (here) However, Justice Penman found Azfar was distinguishable in that the officers in Palden were in the middle of a surveillance operation and all of them were covert. The direction to not turn on the cameras was for the purpose of “protecting the identities of the officers and their vehicles as it could otherwise compromise their safety in further investigations.” Nevertheless, Justice Penman was concerned that TPS drug squad officers do not wear body-worn cameras including in circumstances where at least audio recording could be done.

The failure to create a recording for nine minutes did not result in lost evidence or an abuse of process. The ruling of the Ontario Superior Court of Justice in R. v. Virk was controlling. (here) “Courts have consistently concluded that absent evidence of a deliberate, bad faith choice to avoid gathering evidence, failure to activate a camera or other recording device does not amount to a breach of the Charter,” Justice Penman said. In Virk, the Ontario Superior Court of Justice had relied upon settled Ontario case law dating back fifteen years to R. v. Khan. (here) The law in Alberta is the same. In R. v. McCoy, Justice Corina Dario of the Alberta Court of Queen’s Bench held that “the non-recording of an investigatory interaction” is not sufficient to constitute a Charter breach. (here) “[T]he ‘outrageously cavalier or indifferent’ attitude of officers towards recording […] interactions may be relevant, but not because it necessarily invokes a Charter right; rather its relevance is in assisting the Court in evaluating the reliability and possibly credibility of testimony and other evidence provided at trial,” Justice Penman added. That finding applies regardless of police policies that do not create Charter rights.

4. Calgary Police Service Policy

The ruling in Palden presents an opportunity to review the body-worn camera policy of the Calgary Police Service that I have not discussed in previous posts to On The Wire. I will limit the review to those sections of the policy that are relevant to the issues raised in Palden.

(a) Principle and Purpose

The overarching principle in s. 1(1) provides that the Calgary Police Service will employ body-worn cameras in an “overt capacity” in support of police officers’ statutory and common law duties. Officers are directed to take reasonable steps to balance the privacy rights of individuals with the anticipated benefits of using body-worn cameras for law enforcement purposes. The use of body-worn cameras is mandated by s. 2(1) that requires officers to use them “to record all law enforcement interactions with the public in the course of their duties.”

(b) Officer Responsibility

The responsibility of officers to use body-worn cameras is contained in s. 5(4)(a)(i) which directs officers to use the cameras “whenever the information gathered will support the purposes outline in s. 2”. Specific examples of law enforcement interactions with the public include: (a) circumstances where an arrest or detention is likely to result; (b) during an arrest, detention or charge; (c) when providing a Charter and caution; (d) when issuing a legal demand such as a breath demand; (e) where use of force is possible; and, (f) where the body-worn camera may assist in de-escalating a situation by affecting the behaviour of individuals who are aware of the recording in progress.

(c) Deactivation

Officers are directed not to deactivate the body-worn camera before the completion of a contact with the public during a law enforcement matter unless approved or directed by a superior, or in certain other circumstances which include: (a) when inside any police facility unless dealing with a member of the public at the front counter, dealing with an arrest inside the facility or booking an arrest at the Arrest Processing Section; (b) at a point of continuity that is being held for a lengthy investigation (for example, a homicide scene, a fatal collision); and, (c) in situations where there are privacy considerations (outlined in s. 7).

The same deactivation policy in the Toronto Police Service policy has been adopted by the Calgary Police Service. However, the deficiency in the TPS policy regarding non-activation, highlighted in Palden, would appear to be covered by s. 2(1) of the CPS policy which states that “officers will use BWCs to record all law enforcement interactions with the public”.

5. Conclusion

On November 14, 2024, the Royal Canadian Mounted Police, Canada’s federal law enforcement agency, announced that frontline officers at select detachments would start wearing body-worn cameras starting November 18, 2024. (here) Audio and video captured by the cameras are to be uploaded and maintained on a secure digital evidence management system. It was projected that approximately 1,000 officers would be using the cameras over the next nine months with a target of 90% of frontline officers using them by 2026. In October 2022, the RCMP had published a new body-worn cameras operational policy in advance of the camera rollout. (here) The Operational Manual provides in s. 4 that an officer will start recording: (a) before arriving at a call for service; (b) when there is a decision to initiate contact with a member of the public for investigation purposes; (c) to record statements that would normally be taken in the field; (d) to record interactions with persons in custody; and, (e) in any other situation where an officer believes recording would support them in the execution of their duties. The RCMP manual also contains the same exception to deactivate when directed to do so by a supervisor. (here)