McGill vs. the Quebec Charter

The photo is of a McGill University (Montreal, Quebec) security guard trying to prevent me from taking a photograph while I was on the sidewalk in front of campus. That is, I was NOT on campus while taking these pictures; I was on a public sidewalk, in a public space, where I am allowed, per the the laws of Canada and in particular the Quebec Charter, to photograph just about anything I can see. McGill, however, apparently believes otherwise.

Here is the full story:

The teaching assistants are on strike at McGill. So far the administration has taken a strike-busting approach and in general has behaved quite badly, preferring to address the situation with illegality, mendacity, and thuggishness not worthy of an institution of higher learning.

Yesterday, Friday May 30, was graduation day for students in the McGill Faculty of Arts. Sometime before the ceremony, somebody taped some plastic flags, bearing the logo of the TA union's parent organization, CSN (Confederation des Syndicats Nationaux) to the fence separating McGill from the rest of the city. In the afternoon, during the graduation ceremony, I was walking along the sidewalk in front of campus, along Sherbrooke street, and noticed the flags. I also noticed that McGill security was taking these flags down. McGill security, I should note, is provided by rented security agents from the Canadian Bureau of Investigations and Adjustments, a private security firm. There were two agents present, a man and a woman.

I took a few photos of the flags on the fence. I did so while standing on a public sidewalk.

When McGill security saw me, the woman told me I could not take pictures there. I insisted that I could. She said if I did not stop she would call someone. I said that I hoped they would call someone. At that point I decided that I should take pictures of McGill security engaged in attempting to stop me from exercising my rights. This was, after all, a public space and the Charter and subsequent court cases clearly say that I can take photographs in public spaces, even of people. That McGill, via its security, found it desirable to infringe my rights was, I thought, worthy of a photograph or two, so I turned my camera toward the guards.

The female guard attempted to block my camera with her hand.

The guards continued to insist I could not take pictures there, and I continued to insist that I could. A passing pedestrian attempted to intervene on my behalf, telling the guards that I had the right to take pictures in public, and offered to call the real police. There was, I suppose, some hope that perhaps the actual police would know the actual laws. Though the experience of this Concordia University student suggests that, while the Montreal police do know it is legal to take photos in public spaces, they are not averse to using absurd bylaws to harass photographers who insist on photographing people in uniform.

The guards radioed their superiors, and soon someone else came out from campus. This did not take long: campus was thick with security workers all that week for graduation ceremonies. When he arrived, he told me I could not take pictures there, and that if I did not stop, he would call someone. By this point I was wondering what action, beyond calling someone ELSE, these people would take if confronted by someone truly intent on harm, and not merely confronted by someone whose only offense was to legally wield a camera. So, again, I encouraged him to make the call. He did, someone else came out, and the someone else told me that I had to stop taking pictures, and that if I didn't he would call somebody. Once again, I said I was in the right, that they could not prohibit me taking pictures in a public space, and I asked him to please call somebody else in. Scintillating conversation was not the order of the day.

This went on for perhaps 10 minutes, by the end of which I had 5 or 6 security guards in front of me.
And then quite suddenly they all walked off the sidewalk and back onto campus.

Then, a few moments later, out came "Patrick", pictured here, wielding a small video camera. (By now we are surely aware that the videotaping by security forces of law-abiding citizens has become the latest expression of the authoritarian mind, a mind certainly on display at McGill these days.) "Patrick" asked if there was a problem. No, I said, only that I have a right to take pictures here and McGill seems to think I don't. Our exchange lasted several minutes, and I don't remember the actual words, but since he seemed to be filming me, I suspect the conversation was recorded; perhaps the Canadian Bureau of Investigations would be kind enough to send a transcript. He, too, tried to tell me that I was not allowed to take pictures there, on the public sidewalk, and I continued to insist that I did. He said he was not going to debate the issue, and I told him there was nothing to debate, as the law on this subject is clear. To his credit, he seemed to know the law a bit better than the others, and he did not continue to press the issue. It is unfortunate, however, that he, like too many security personnel, has no qualms about lying to us about about our rights. He backed down only after I failed to defer to his authority.

Instead, he subtly tried to change the terms of the argument: he began to tell me I could not photograph people if they did not want me to. This, of course, was not the original issue, and is not true anyway. I can photograph anything and anybody in a public space. The primary restrictions, especially in Quebec, relate to publication (on which, see below), not to photography itself.

After this, I walked across campus, through the crowds of happy parents who were shooting photographs by the hundreds, with no apparent opposition from McGill security.

Why publish the photos?

I am publishing these photos online partly because they constitute evidence that this episode happened, and partly as a matter of principle. McGill tried to prevent me from taking photographs in a public space; I have an obligation, I believe, to stand in opposition to what I would characterize as an authoritarian mentality. I also have an obligation to publicize McGill's behavior as widely as possible. This, unfortunately, is how too many institutions and their security apparatuses behave, and they will continue to do so as long as they feel they can get away with it. That is, they will continue for as long as we fail to offer opposition. And we cannot offer opposition if such behavior remains unpublicized.

In these photos I have, for the most part, attempted to preserve the anonymity of those involved. This applies especially to the passing pedestrian who offered to help; he was visible in the full-frame version of the first photograph above, but I cropped him out in order to protect his privacy.

I feel far fewer compunctions regarding the McGill security agents. As I mentioned, my right to take these photos of these agents in a public space is beyond question. However, publication is another matter, and here there are ambiguities, both ethical and legal.

For strictly ethical reasons, I have decided to not publish any of the photographs that clearly show the faces of the uniformed security agents. I have several photographs showing, for example, the faces of the first two agents, the ones who were removing the flags. I cannot condone their activity, and their ignorance of the law is troubling, but these people are low-level employees who were given an unsavory task (infringing CSN's speech) by their superiors and by McGill. In the process of carrying out that order, they found themselves suddenly in the presence of someone (me) who appeared able and willing to document their activities. Their response to my camera was unfortunate, and there should be no tolerance for security agents who attempt, even through ignorance, to infringe the rights of citizens. But their unfamiliarity with the law is the fault the Canadian Bureau of Investigations, who failed to train them properly, and of McGill, who failed to insist that its security agents be properly trained.

As a legal matter, however, I maintain that I do have the right to publish any photograph I took that day. (I will state again that my right to take the photographs is beyond question.) In Quebec, my publication rights are limited by law, in the form of privacy guarantees in the Quebec Human Rights Code. In general, I cannot publish photos of people without their consent, with certain exemptions. The primary case law on the matter is to be found in the majority opinion in Aubry vs. Editions Vice-Versa inc., 1998 CANLII 817 (S.C.C), which is available here. In that case the court ruled that a photograph of a person published without that person's consent was an infringement of the right to control one's image, which is part of the right to privacy. However, the court also said that the right to privacy and to control one's image needs to be balanced against the public's right to know:

The public’s right to information, supported by freedom of expression, places limits on the right to respect for one’s private life in certain circumstances. The balancing of the rights in question depends both on the nature of the information and on the situation of those concerned. In short, this is a question that depends on the context.

That case was decided against the publisher because, as the court said:

It has not been shown that the public’s interest in seeing this photograph is predominant.

I hold that the behavior of McGill and its security personnel in this case remain very much a matter of public interest, and that is why I chose to publish the photos. The public has a right to know that McGill believes it can send its security personnel onto public sidewalks in order to interfere with citizens who exercise their rights. In this case, I am publishing the photograph of "Patrick" because in this encounter he represented--and represents--the face of McGill, in a way that the uniformed agents do not. Even after the other guards had been called back onto campus, surely by someone who knew that they were in the wrong, he walked out from the McGill campus, onto the public sidewalk, to continue to tell me that I could not take photographs there. He must have known he was wrong, that he was making an authoritarian bluff. In this, he is a perfect metaphor for McGill in regards to McGill's behavior toward its TA union and towards me that day on the sidewalk. McGill is a public institution, these security guards are its agents and the public has every right to know what they are up to. Hence the photographs.

If you too, are appalled by McGill's behavior, distribute this post widely. In addition, you can ask McGill why it feels the Charter does not apply on the sidewalks of Montreal.

The provost is Anthony Masi, anthony.masi@mcgill.ca.

The principal is Heather Munroe-Blum, heather.munroe.blum@mcgill.ca

Update: I am making these photographs available for all non-commercial use; please download, repost, distribute widely. Same for the text.