B.C. teen arrested for photographing mall takedown

[36Drew]

No, the mall is private property and can enforce all the rules they can come up with - unless they're against the law. They can tell you what you can and what you can not wear, they can tell you whether or not you're allowed to photograph, they can tell you what behavior is unwelcome, and they can flat out ban you from the properties. This is not public property.

Well - sort of.

The mall is a "Public Place" - in as much as the parking lot of the mall is a "Public Road". Police and can do hand out traffic violation tickets in mall parking lots for those who'd like to turn donuts in them.

The mall is a "Public Place" in that it's generally open to the public. They can prohibit photography by means of posting a sign at the entrance. They can ask you to stop photographing after the fact, and they can ask you to leave.

What they cannot do is insist that you delete or destroy your photographs. Even further, those mall guards had absolutely zero legal grounds on which to detain the teenager unless they suspected him of shoplifting. They *should* have escorted him to the exit, and called the police only if he refused to leave.

The police officers should have known better. If it were me, personally, I'd have been demanding charges laid against the guards for wrongful arrest. Those security guards, hands down, committed a criminal act. (Read s494(2) of the CCoC for clarification).

[castakelowna]

actually i dont think he can really demand photo's are not taken unless that rule is openly posted and enforced for every person who enters the mall.
even if there was a sign they still have no legal rights to assault a child and the police again without even investigating take a mickey mouse security mall cops word over a kid with pictures.
in kelowna a Andre's employee murdered a shoplifter and the police called it acceptable use of force.
go figure.
protecting a $20 cable from a shoplifter is worth a life
Murdered a shoplifter??? Some details please
sure

http://www.castanet.net/news/Kelowna/10 ... er-s-Death

i was wrong the police recommended charges and the crown decided it was acceptable.[/quote]

I think the crown set a really dangerous example in this one. Honestly, the guy was trying to steal, not hurt anyone, how can one be justified in killing someone trying to steal? he did not even make it out of the store! I was told by the xray tech that did the xrays on this guy after they killed him, she said he was beat bad! Funny what happens in a store owned by a city councillor....

[castakelowna]

No, the mall is private property and can enforce all the rules they can come up with - unless they're against the law. They can tell you what you can and what you can not wear, they can tell you whether or not you're allowed to photograph, they can tell you what behavior is unwelcome, and they can flat out ban you from the properties. This is not public property.

Well - sort of.

The mall is a "Public Place" - in as much as the parking lot of the mall is a "Public Road". Police and can do hand out traffic violation tickets in mall parking lots for those who'd like to turn donuts in them.

The mall is a "Public Place" in that it's generally open to the public. They can prohibit photography by means of posting a sign at the entrance. They can ask you to stop photographing after the fact, and they can ask you to leave.

What they cannot do is insist that you delete or destroy your photographs. Even further, those mall guards had absolutely zero legal grounds on which to detain the teenager unless they suspected him of shoplifting. They *should* have escorted him to the exit, and called the police only if he refused to leave.

The police officers should have known better. If it were me, personally, I'd have been demanding charges laid against the guards for wrongful arrest. Those security guards, hands down, committed a criminal act. (Read s494(2) of the CCoC for clarification).

[castakelowna]

yes i agree if the mall has a no photo rule then he is in the wrong.
now how far the police and security took it surprised me,

you think the security had the right to assault and rob this poor kid for taking a picture.....

[goatboy]

Absolute perfection in your post. At no point does one advocate their rights of search and seizure in this case unless the individual. But I'll take this ball one step further, for a Police Officer to Search and make a Lawful Arrest an individual there must be "reasonable suspicion" objective and factual events or evidence that a crime has been committed. Not a Rule of the Mall... an actual crime.

What was this young mans crime? Furthermore what were the objective events that necessitated this minor being held against his will and searched?
We have a judicial process for civil court that is the mall wanted those photos for to use, circumventing that and using arms of the criminal justice system is an absurd response to this matter.

I'm still guessing there was a little more to the story and how everything transpired. The kid admits:

He admits he started swearing and was then handcuffed by police and taken outside the mall to an RCMP cruiser by the officers and mall security.

And

Burnaby RCMP say Markiewicz was arrested for causing a disturbance, but was not charged. He has, however, been banned from Metrotown mall for six months.

He was told he couldn't take pictures and then proceeded to take one more:

But Markiewicz said the guards quickly turned on him, demanding he delete the photo, which he couldn’t do because he was shooting on a film camera.

Markiewicz said he turned to leave the mall and then snapped a second shot as RCMP arrived.

Swearing in public (for whatever reason) is causing a disturbance, so that was what he was arrested for. The guards told him to stop taking pictures (which they can on private property) and he continued to take more.


Now, with that said, should the guards have acted the way they did? Probably not. Should he have taken the last photo and instead complied with what they asked and then walk away. Probably.

[Captain Awesome]

Well - sort of.
The mall is a "Public Place" - in as much as the parking lot of the mall is a "Public Road".

I don't think there's a "sort of public place" legal term. Mall happens to be owned by Ivanhoe Cambridge, it is private property. Sure, there are a lot of people hanging out there, but it doesn't make it a public location.

Even further, those mall guards had absolutely zero legal grounds on which to detain the teenager unless they suspected him of shoplifting. They *should* have escorted him to the exit, and called the police only if he refused to leave.

That I don't know about. Perhaps Free Rights can tell us since he is in the security industry and knows that part of law more than any of us.

Those security guards, hands down, committed a criminal act.

Doubt that - but once again, I don't know much about laws in that area.

[keith1612]

yes i agree if the mall has a no photo rule then he is in the wrong.
now how far the police and security took it surprised me,

you think the security had the right to assault and rob this poor kid for taking a picture.....

well i dont think he was robbed, he was pushed around a bit by both the mall security and police.
he obviously didnt loose the picture as its posted.
no i dont think they should have done it but if there are in fact signs saying no photo's he was breaking the law.
but like the kid murdered in kelowna by a salesman they should have to prove any form of physical force and the reason for using it.
no good reasons they should be charged.

[36Drew]

I don't think there's a "sort of public place" legal term. Mall happens to be owned by Ivanhoe Cambridge, it is private property. Sure, there are a lot of people hanging out there, but it doesn't make it a public location.

The "Sort of" was in reference to you calling it private property. It is - but it's still a public place as defined by law. The CCoC states:

“public place” includes any place to which the public have access as of right or by invitation, express or implied;

The mall is, by the very definition as afforded by law, a public place regardless of it's status as private property.

Even further, those mall guards had absolutely zero legal grounds on which to detain the teenager unless they suspected him of shoplifting. They *should* have escorted him to the exit, and called the police only if he refused to leave.

That I don't know about. Perhaps Free Rights can tell us since he is in the security industry and knows that part of law more than any of us.

Those security guards, hands down, committed a criminal act.

Doubt that - but once again, I don't know much about laws in that area.

*sigh* - I provided a reference to the CCoC, but since you're too lazy to look it up, i'll paste here and then further comment:

Arrest without warrant by any person

494. (1) Any one may arrest without warrant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
Marginal note:Arrest by owner, etc., of property

(2) Any one who is
(a) the owner or a person in lawful possession of property, or
(b) a person authorized by the owner or by a person in lawful possession of property,
may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

I'm hoping that I don't need to explain "indictable office" or "criminal offence" for you.

This young lad did not commit any indictable or criminal offence by way of taking a photograph in a public place. Perhaps they could have had grounds for believing that he was escaping from persons who have lawful authority to arrest him - but reading Canlii shows there's a helluva strong onus on those who are not peace officers without the powers to arrest.

This young man may have broken the Mall's rules. He may have been outright disgustingly rude, and may have deserved a very forcible ejection from the mall. However, by the very strict definition of the law and the events stated in the article, he was unlawfully arrested by the mall security guards.

I'm not even touching on the interference of his personal property by same said guards.

Defer to freerights all you want - he'll tell you pretty much the same thing. "Shopkeeper's privilege" in Canada places a very strong burden of proof on the shopkeeper.

[SurplusElect]

Kid should get a lawyer - why was he "searched"?

Taking pictures generally does not denote that you have weapons, drugs or contraband on your persons. Where was the "reasonable suspicion"? Charter violation.

The police show up and destroy some of his property to illegally search him - why?

So they can luck out, find some pot and generate a arrest opportunity and justify their actions/justify the situation (after the fact)?

[keith1612]

Kid should get a lawyer - why was he "searched"?

Taking pictures generally does not denote that you have weapons, drugs or contraband on your persons. Where was the "reasonable suspicion"? Charter violation.

The police show up and destroy some of his property to illegally search him - why?

So they can luck out, find some pot and generate a arrest opportunity and justify their actions/justify the situation (after the fact)?

pretty hard to get a lawyer and sue the police better have lots of money.
they have the right to stop and search you with probable grounds.
they always seem to use the reason to search backpacks etc as looking for hidden weapons, if you say no well.....
the end point to consider is will the judge decide the police were acting in bad faith or just made a misstake.
unless bad faith they are found to be correct and just.
look at the guy they beat to a pulp in vancouver by going to the wrong door, still found to be acting in good faith.
proving their intent was malicious is next to impossible when they investigate and absolve themselves.

[Captain Awesome]

The mall is, by the very definition as afforded by law, a public place regardless of it's status as private property.

...yet the owner of said place can dictate how people behave there. I was simply pointing out that public space ISN'T public property where you can do whatever you want.

This young lad did not commit any indictable or criminal offence by way of taking a photograph in a public place. Perhaps they could have had grounds for believing that he was escaping from persons who have lawful authority to arrest him - but reading Canlii shows there's a helluva strong onus on those who are not peace officers without the powers to arrest.

As I've stated before, I don't know the law - and reading stuff on Internet doesn't help me in this department to the point where I can judge other people's behavior and make conclusions on police officers chosen way of actions. So, I avoid making any conclusions on my own in the area that I don't know about. Also, we don't know what happened there - few "minor" details could have been left out of the picture to change the perspective completely.

[keith1612]

basically this is the exact same issue cops all over were having and seem to be getting better with.
being filmed/taped in the process of doing a physical duty and worry about the reprocussions.
they wouldnt have done this to him if he was taking a photo of his girlfriend at the fountain or in the food fair.
so do they deserve protection while doing their job for the reason of worry give them grounds?
id say no
reporters would be out of work as would those skuz magazines sold in supermarkets.
police now are very carefull to not absue people filming them as they should be to a degree, if someone interferes to get photos they should be charged.

[goatboy]

*sigh* - I provided a reference to the CCoC, but since you're too lazy to look it up, i'll paste here and then further comment:

Arrest without warrant by any person

494. (1) Any one may arrest without warrant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
Marginal note:Arrest by owner, etc., of property

(2) Any one who is
(a) the owner or a person in lawful possession of property, or
(b) a person authorized by the owner or by a person in lawful possession of property,
may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

I'm hoping that I don't need to explain "indictable office" or "criminal offence" for you.

This young lad did not commit any indictable or criminal offence by way of taking a photograph in a public place. Perhaps they could have had grounds for believing that he was escaping from persons who have lawful authority to arrest him - but reading Canlii shows there's a helluva strong onus on those who are not peace officers without the powers to arrest.

This young man may have broken the Mall's rules. He may have been outright disgustingly rude, and may have deserved a very forcible ejection from the mall. However, by the very strict definition of the law and the events stated in the article, he was unlawfully arrested by the mall security guards.

I'm not even touching on the interference of his personal property by same said guards.

Defer to freerights all you want - he'll tell you pretty much the same thing. "Shopkeeper's privilege" in Canada places a very strong burden of proof on the shopkeeper.

Thanks, that's a pretty good explanation. Would Assault by Trespass apply here?

[36Drew]

Thanks, that's a pretty good explanation. Would Assault by Trespass apply here?

Against whom? The published story states that the security guards simply held him and attempted to seize his camera. in fact - the story states the boy was attempting to leave the mall. That would tell me that, if his intent was to leave after being told he couldn't take photos, there's no Assault by Trespass being committed as he's actually leaving (after, I presume, being told to do so).

[keith1612]

I'm hoping that I don't need to explain "indictable office" or "criminal offence" for you.

This young lad did not commit any indictable or criminal offence by way of taking a photograph in a public place. Perhaps they could have had grounds for believing that he was escaping from persons who have lawful authority to arrest him - but reading Canlii shows there's a helluva strong onus on those who are not peace officers without the powers to arrest.

This young man may have broken the Mall's rules. He may have been outright disgustingly rude, and may have deserved a very forcible ejection from the mall. However, by the very strict definition of the law and the events stated in the article, he was unlawfully arrested by the mall security guards.

I'm not even touching on the interference of his personal property by same said guards.

Defer to freerights all you want - he'll tell you pretty much the same thing. "Shopkeeper's privilege" in Canada places a very strong burden of proof on the shopkeeper.[/quote]


indictable really means squat, its just the higher end of the choice of charges.
police can charge either indictable or summary and you are always better with the latter.
but now should a shopkeeper/gas jockey/mickey mouse mall security/ general person on the street decide they should become a cop and beat a suspected criminal to the ground to arrest them?
i say no
if people left busting criminals to the cops we wouldnt have to prepay for gas etc.
sometimes maybe society would be better off to allow the scum bag to escape then go to far the other direction.
even good intentioned cops are now being charged for the bad result of poorly decided police chases.
sometimes the end isnt worth the result.
like the kelowna story i posted earlier, was it worth a human life to stop a dumb kid from shoplifting?
too often the excessive force (no matter how well intended) causes even a worse result