I figured since this is an instance where charter rights were breached, it would be useful to post for the general information of RS members to know their rights.

Well no one has said that he was obstructing justice. We don't know what he did when the police got there...we really don't KNOW anything at all if you think about it. But from what we've been told by the media thus far is that he's altercation was with the security guards. The security guards can and often do enforce the no photography policy and ask you to leave the mall/store if that happens.

The laws around shopping malls is tricky because it's considered a private property that is opened up to the general public. It is expected that the public will come in and do things that they commonly do while shopping. Photography isn't one of them, unfortunately. The only exception I know is that if something from nature (i.e. a bird) was on the property NATURALLY, then you are permitted to take photos of that animal.


It's good to know your Charter Rights but it's also not a good idea to waive them around frivolously. I don't see any Charter Rights that have been violated in this situation.

My response was to this post:

where he suggested that the teenager could have been obstructing the guards. what i was trying to suggest with my post is that there is no legal provision in the criminal code for obstructing guards from doing their duties.

Sure but we're throwing all these Criminal Code provisions and Charter of Rights and Freedoms Acts around acting like they play in here. Don't look at things so narrowly. This can be played in several different ways. If he was fighting, kicking, screaming etc. which he admits to doing, he was creating a disturbance. That's sanctioned by the Criminal Code.

Here is how this could've played out by someone who is a little more experienced and perhaps more mature than this amateur kid.

See's an opportunity to take a photograph of something he feels is important.
Takes said photograph but then is told by an authority of the premise to seize from taking the photograph and delete it.
Realizes he's having trouble here, whether or not you understand the idea that you are indeed violating mall policies.
..now you leave the mall and exit on out, hopefully with any altercation. I can't tell you what to do if an altercation arises after that but I can say that the steps I've stated above are reasonable methods of handling this situation.

Instead, the young man must've created a scene in an already high tensioned atmosphere. He didn't just take his belongings and leave the mall, instead he stayed there. I have a hard time believing that the security guards saw him taking photographs and they went after him IMMEDIATELY after. If the RCMP arrived there on scene just as he was "turning around and taking his last photograph" that means he wasn't being apprehended by the security guards yet because he had the ability to take another photograph, and he was there around the altercation long enough for someone to call the RCMP and for them to arrive on the scene........food for thought.

I am sure he is playing the "Oh I'm just a kid and aspiring to be a photographer, THEY ARE OPPRESSING ME I HAVE RIGHTS AND STUFF." Really not much here now that I look at everything. The only thing is really his version of how they cut his bag off. I would like the hear from the security/police on this one though.

Sorry for the long post...

Criminal investigation must be done carefully and with regard to the law governing search and seizure. Section 8 of the Charter does not use the word “privacy” in any of its sections, we, as Canadians, value and uphold the concept of privacy, at times going to extreme lengths and expense to prevent others from invading our personal space and property. However, there is a balance that must be struck between protecting an individual's right and keeping our society safe safe. The large number of criminal cases challenging the legaality of a search or seizure indicates the range or interpretations that can be given to this section of the Charter. It is the role of the courts to determine if there has been an unreasonable search or seizure. They must also rule on any application made to have evidence excluded should it be established that to admit the evidence would bring the admission of justice into disrepute.

These applications are submitted under s. 24(2) of the charter:

“Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

In the case of R. v. Collins,[1987] 1 S.C.R. 265, Ruby Collins was charged with possesion of heroin for the prupose of drug trafficking. She and her husband had been under surveillence by two police officers. When Collin's husband left a pub with a friend, he was arrested, searched, and found to be in possession of heroin. The officers returned to the pub and saw Ruby sitting with another woman at a table. The officers approached the table. Fearing that Collins might try to swallow any drugs she was in possession of, one officer used a choke-hold procedure on her, which is a drug seizure technique designed to prevent the swallowing of any suspected drugs. Collins didn't have any drugs in her mouth; the heroin was in her hand, contained in a green baloon.

The trial focused on the validity of the search and seizure and the admissibility of the drug evidence. The officers did not have reasonable and probable grounds for detaining her(sounds familiar????)
The supreme court set out a test for a reasonable search: “A search will be reasonable if it is authourizable by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”

The court held that the search and seizure in this case was unreasonable. They struggled with whether the evidence should be excluded under the authority of s. 24 (2) of the Charter. Ultimately, the majority of the court decided that it would bring the admission of justice into disrepture if the drug evidence were allowed. In deciding whether to exclude the evidence, the court considered many factors, including the seriousness of the offence and the unfairness it brings to the trial. In other words, would admitting to the drug evidence adversely effect Collins' chances of recieving a fair trial and would it cast a negative light on the justice system?

In certain cases, a search can be executed without a warrant. The Criminal Code of Canada under s. 177.02 permits warrantless searches for offences ONLY including weapons. Therefore, taking away the camera from Markiewicz was totally unjustifiable and infringes his rights.

"whether" :troll:

Err, yeah lol... im tired and its almost 11... I'm sure there are more typos there (;

...when was his camera taken away?

Also, you should know that Section 8 of the Charter does not apply to security guards. In this case, the RCMP searched his backpack, but had the security guards done so, they would not have violated Section 8. And the search of his backpack was legal as well...Nothing that happened in this incident violated Charter rights.

they take you to their office, than they take a photo of you and give u a written form stating ur ban, etc etc and cops get involved too

previous experience? :troll:

Do you think that searching of the backpack was necessary for the application of law in a "causing a disturbance" case?

I can't comment on that, I wasn't there, I don't know how the events unfolded. I'm simply speaking from a legal point. Now we're discussing personal opinions which do not hold much validity in the eye of the law.

If the the disturbance was of a kind, where this young man seemed like he may have been a danger, I would definitely want his shit searched.

A danger to whom? And how was he being a danger?

Is an attempt a violation of Sec. 8?

Huh?
Section 8 of the Charter: Everyone has the right to be secure against unreasonable search or seizure.

You are grossly incorrect. A security guard has no greater authority to search someone than an ordinary citizen.

This means they CANNOT search or seize anything without the person's permission.

Furthermore, they cannot detain you legally if the guard suspects you commited a crime and keep you on the property.

....seriously? A security guard is NOT a public authority. This applies ONLY to public authorities! It can become a tort claim for assault if the backpack is taken but it is NOT a Charter violation.

Keep in mind, the Charter of Rights is primarily a Government vs Citizen. It protects us from misuse power of the government.

I will try to draw this out for you because with all do respect, YOU sir, are "grossly incorrect."

Section of the Charter of Rights and Freedoms: Everyone has the right to be secure against unreasonable search or seizure.

What needs to be defined here? Everyone, secure, unreasonable and search and seizure. The first 3 aren't being argued, they're pretty straight forward so skip right to "search and seizure."

Search and Seizure: the taking of a thing from a person by a public authority without that person’s consent.

See how that works?
No, I don't believe an attempt is, but I could be wrong on that one, but I'm pretty certain it's not.

parm104 -- Can you please cite what criminal offence Markiewicz did on or in relation to the property which the security gaurd was authorized to protect.

We're going in circles now! I hit one point and instead of acknowledging that you move to the next one. This is, so far, a constructive and civil discussion and will probably be rather helpful to other members when they read it. But let's continue to do it that way. Don't spit out 10 different points and get me to respond to them in vain and not acknowledge them.

First you talked about Charter violation by the police. They're the ones who searched, not the security guards. They arrested him, so they were within their grounds to search his person for dangerous or illegal substances. It's the law.

Now you're jumping to the security guard's authorization to protect the premise. If you read the first posts in this thread, you will have already read that it is possible that he has violated the mall's strict policy on no photographs. This can be at the very least, a copyright violation. MOST stores have a no-photography policy. Photographs can be taken, but with permission from the management authority.

Here is is:

In Harrison v. Carswell (1975), [1976] 2 S.C.R. 200 Legislation recognizes malls as public spaces.

The guards were probably just worried they were being video taped taking down another citizen which can open a can of worms. So they wanted to deal with the video tape right away and make up whatever reason later.

....a case that was decided before the establishment of our Charter...

Although it is true, mall spaces have been interpreted by the courts to be a public space where land owners of that space should expect public taking part in commonly performed activities....but citing that case does not set precedent and is not applicable right now. It's been going back and forth whether malls are private places, public places, semi-public, quasi public, etc.

I think I should mention that I am not advocating one side or another. As I mentioned, before I make my personal opinion, I need to see/hear the full story from both sides, which none of us have. I am advocate for sticking up for personal rights as I have made it clear in past threads in the Police Forum. However, if we are speaking strictly on the law, which, again, is the only thing we can comment on since we do not have the full story, then legally speaking...shit went down right.

Fair enough...

The security guard attempted to seize his camera, which the security guard had no authority to do because he did not witness a criminal offence. You are only allowed to seize property when you witness a criminal offence being committed. If the kid wouldn't had protected his property the security guard would have taken his property unlawfully.

When a security guard arrests someone it must be because the person broke a criminal offence. Taking a photo is not grounds to arrest someone and hold them until the police arrives. You can only put a person in detention if they broke a criminal offence.

A no-photography policy is NOT a criminal offence last I checked. Also, were there signs displayed clearly indicating "No Photography" ? This was not mentioned.

Thats pretty rude man and didnt sound civil at all.

was thinking about this earlier as well.

ignorance of the law is no defence in the law.

however, policy if it is to be enforced should be made known public. coquitlam center has it made clear that photography is not allowed on premise. how come metrotown didnt implement the same?