Videotaping a statement

Police do not need to obtain the consent of a suspect to videotape the start of an interview.  This, obvious, point seems to be cloudy to some police officers.  Today’s decision in R. v. Young, 2009 ONCA 891 clarifies the issue:

[9]              In the course of her ruling on the admissibility of the statements, Molloy J. adverted to what appears to an ongoing misperception among some police officers on the right to videotape (or tape record) the taking of a statement from an accused.  At paras. 25 to 26 of her ruling she wrote:

I agree that the taking of a formal statement from a suspect is different from filming the routine matters that occur at arrival and booking.  However, there is nothing about the taking of a formal statement that precludes it being tape recorded right from the start.  It is appropriate to explain to a suspect that the interview is being videotaped and why, and there is nothing wrong with discontinuing the videotaping if the suspect does not wish to be recorded.  However, there is absolutely no legal requirement to start the interview without taping and to only turn on the recording device upon obtaining consent.  Quite to the contrary, the norm should be that a suspect is spoken to from the outset with the videotape in operation: R. v. Backhouse at para. 118.  It should only be discontinued if the suspect objects.

It is not clear to me where these officers got the idea that it was unlawful to start the recording before getting permission.  However, this is not the first time that I have heard police officers speak of it.  It appears to be a commonly held view.  Crown counsel in this case was unaware why police officers had this understanding, but agreed that there was no legal basis for it.  I felt it important to comment on this formally in the hope that steps would be taken within the police force to educate officers on the importance of recording interviews from the outset.  Otherwise, the important principles underlying cases such as Moore-McFarlane will be seriously undermined.

[10]         We affirm these comments.  They hearken back to the words of Rosenberg J.A. in R. v. Backhouse (2005), 194 C.C.C. (3d) 1 at para. 118:

That said, I should not be taken as holding that it will always be an answer to the failure to videotape the statement that the suspect has refused to participate.  It could become all too easy for the authorities to attempt to avoid the impact of this court’s decision in Moore-McFarlane by attributing to the suspect a refusal to have his statements videotaped.  It would still be open to the police to tape record the statement, or at the very least electronically record the suspect’s wishes, to avoid any later dispute.  Depending on the context, the trial judge might well view with concern a bare assertion by police officers that the suspect refused to be videotaped or even tape-recorded.

[11]         In short, the police are entitled to begin to videotape or tape record an accused’s statement.  If the accused then objects or refuses to be videotaped, at least there will be a record of the accused’s refusal.