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VIDEO EVIDENCE OF EMPLOYEE CONDUCT IS HERE TO STAY

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VIDEO EVIDENCE OF EMPLOYEE CONDUCT IS HERE TO STAYThe recent Report Following a Public Interest Investigation respecting the death of Robert Dziekanski relied heavily on video evidence produced by a bystander.  I’m thinking employers should get accustomed to facing such evidence of the actions of their staff.

Mr. Dziekanski died while in the custody of members of the RCMP in the early morning hours of October 14, 2007, in the international arrivals area of the Vancouver International Airport.  The critical video was shot by a witness, Mr. Paul Pritchard.

It may be fair to say that the presentation of this video evidence, and its impact on the findings of the Commission for Public Complaints Against the RCMP, is a watershed moment in Canadian policing.  With the proliferation of compact devices having the ability to record video and sound, instances of recording of such controversial events can only increase.

The so-called Pritchard video isn’t of course, the first instance of critical video evidence captured by a bystander.

Perhaps not the first, but likely the most famous, bystander video was shot by Abraham Zapruder at Dealey Plaza in Dallas, Texas on November 22, 1963.  Zapruder’s video captured the presidential limousine of John F. Kenney from the time it completed its turn onto Elm Street until it passed out of view under a railway overpass.

In particular, Zapruder’s video is famous for having recorded the fatal shot to President Kennedy’s head when his limousine was almost directly in front of Zapruder’s position.  It seems to have been accepted as the clearest rendition of those tragic events.

Zapruder used a Model 414 PD Bell & Howell Zoomatic Director Series Camera powered by a spring-wound mechanism.  That device was a far cry from today’s digital technology, but it served to impact history in its own way.

The Zapruder film was examined by the Warren Commission and all subsequent investigations into the assassination.  Later, the film footage was deemed “culturally significant” by the United States Library of Congress and was selected for permanent preservation in the National Film Registry.

On March 3, 1991 George Holliday preserved on video the events of the 1991 police beating of Rodney King in Los Angeles.  After a freeway chase, King’s vehicle had been cornered and he was ordered to exit his vehicle and lay face down on the ground.

While on the ground, King initially resisted being handcuffed.  Police officers struck King twice with a Taser conducted energy weapon.  Holliday’s video commenced at about that time and recorded over fifty baton blows by the officers to King’s body.

This brutal beating was caught on a camcorder by Holliday, apparently unseen by the officers, from his apartment balcony.  Mr. Holliday’s delivery of his video to the news media set off a firestorm of scrutiny and revulsion at the actions of police, culminating in riots after the officers were initially acquitted.

In Vancouver, Paul Pritchard’s digital video camera demonstrated that, just 26 seconds after the officers first made contact with Mr. Dziekanski, a Taser was first discharged.  The Commission found that no significant attempts were made by the RCMP officers to communicate with Mr. Dziekanski or to obtain clarification of information pertaining to his situation and that deployment of the taser was premature and was inappropriate in the circumstances.

The Commission did not accept as accurate any of the versions of events as presented by the involved officers because there were “considerable and significant discrepancies in the detail and accuracy of the recollections of the members when compared against the otherwise uncontroverted video evidence”.

We can only wonder what the outcome of the Commission’s investigation would have been (or if there would have been an investigation at all) without Pritchard’s critical video evidence.

Some of the fallout of the Dziekanski tragedy can already be seen.  Police organizations have reviewed and revised their policies regarding the discharge of conducted energy weapons.  On a larger scale, the RCMP and the B.C. Association of Chiefs of Police have now called on government to establish an independent unit to investigate such deaths.

For employers, the fallout of the Dziekanski investigation and the Pritchard video may be a heightened boldness by bystanders – employees and non-employees alike – to record employees’ actions in the course of their duties.  Whether that’s a good or a bad thing may not matter much – the evolution of technology makes it a certainty.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law.  For more information about his practice, log onto www.pushormitchell.com.

 

Past “Legal Ease” columns, may be viewed at http://www.pushormitchell.com/law-library/publication/legal-ease.  This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.
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