YouTube Alert: Visible Trauma

no visible trauma

In July 2020 the CBC aired a documentary titled “Above the Law” by filmmakers Marc Serpa Francoeur and Robinder Uppal of Lost Time Media. 

https://calgary-law.ca/blog/police-reform-peace-respect-and-trust/

The “Above the Law” documentary asserted that Calgary police tore apart the lives of some Calgary residents and that our justice system failed to hold them accountable.

“Above the Law” is apparently a smaller piece of a larger Lost Time Media project about policing in Calgary. As confirmed by the CBC in their report dated November 23^rd, 2020 headlined “Calgary officer files injunction to stop police brutality documentary from screening”, it appears that the production company is close to releasing a full feature length documentary titled “No Visible Trauma”.  This documentary is now facing a legal challenge.

As reported, Calgary police officer Cst. Chris Harris has filed an emergency injunction to stop the documentary about police brutality from airing. He has also apparently filed a civil lawsuit accusing the filmmakers of defamation.  

https://www.cbc.ca/news/canada/calgary/calgary-police-brutality-documentary-1.5813636

The basis of Cst. Harris’ complaint centres on police dash camera footage and body mic audio that reportedly captured a violent incident between Calgary police and a person named Clayton Prince. The audio portion apparently recorded words spoken by Cst. Harris to a police recruit; words that Harris asserts were intentionally twisted by the filmmakers when they tampered with the audio volume of words captured by his body mic.  The filmmaker counters that the

“…audio that Harris's team has submitted seems to have removed the lower frequencies of the word in question, something they intend to question”. 

the cbc story

To ensure the accuracy of my words, I have quoted the CBC story at length:

Concerns centre around audio following violent arrest

The concerns centre around a seven-minute clip from the full-length documentary posted online that shows an Indigenous man, Clayton Prince, running from police after a traffic stop. 

The clip shows dashcam footage of Prince lying facedown on the ground and putting his hands behind his head. Officers rush toward Prince, and one officer drops to his knees and begins to punch Prince in the back of the head. Then, the dashcam video is shut off. 

A later dashcam video shows Prince being taken into custody, alongside audio of Harris speaking with a young recruit in the background — but Harris disputes that the audio used in the documentary is accurate. 

In the documentary, Harris says in a subtitled clip, "What you saw here did not happen." The recruit giggles and responds, "That's policy, yeah, I know." 

Harris then says: "Guys decide to dispense some street justice. If that guy in the white van was videotaping us this would not do very well because buddy is surrendering, he gets down on the ground, and he gets fed a whole bunch of cheap shots." 

Harris isn't identified and is just referred to as a veteran CPS officer. 

'Did' versus 'should'

But Harris said he didn't say "What you saw here did not happen," but actually said, "What you saw here should not happen."

Harris said in an affidavit that the audio from the documentary was provided to two audio experts working independently from one another, one of whom was also given the original Calgary police audio recording. 

Harris said the audio experts told him the volume on that disputed word was lowered in the documentary, which makes it harder to hear. 

Harris's statement of claim argues he was teaching the recruit that the officers' behaviour during the arrest was not OK, and said that the clip is falsely subtitled in a way that damages his reputation and career. 

Francoeur said the filmmaking team emphatically denies that the audio was changed in any way to alter what was said. 

"We are very confident that we can provide expert testimony to reject that ... we take very, very seriously the onus to communicate clearly," he said.

Francoeur said the audio that Harris's team has submitted seems to have removed the lower frequencies of the word in question, something they intend to question. 

EVIDENCE TAMPERING

From reading the CBC report, it appears both parties – Harris and the filmmaker – are essentially claiming that evidence was tampered with.  In the opinion of this Calgary defence lawyer, if either party tampered with the evidence, they must be held accountable.

Tampering with evidence for any purpose is absolutely unacceptable. If it is proven that the filmmaker lowered the volume of the audio in question, how can anybody trust the filmmaker’s message?  Tampering with the evidence to sell a message demolishes both the reliability and credibility of the documentary.  

Without a reasonable measure of trust, the documentary is little more than fake news and in the opinion of this Calgary criminal lawyer, should not be released to the public as a Lost Time Media project. In my opinion, if is proven that Lost Time Media lowered the volume of the audio, Cst. Harris may have a sustainable defamation lawsuit.

By the same token, if Cst. Harris (or the police) submitted tampered audio, the credibility of the entire Calgary Police Service (CPS) may be imperilled. Indeed, if Francoeur and Uppal prove that Harris or the CPS was responsible for tampering with the audio (as they seem to suggest), they have more fodder for their criticism about a lack of credibility and accountability within the police service.  

In light of the apparently unresolved conflict between Cst. Harris and the filmmakers, I reserve further comment on this subject.

DIFFERENTIAL TREATMENT

There is a subject arising from the CBC story, however, that deeply concerns me.

According to the CBC, Cst. Harris effectively claimed that the conversation he was having with a police recruit was a teaching moment.  To reiterate:

"Guys decide to dispense some street justice. If that guy in the white van was videotaping us this would not do very well because buddy is surrendering, he gets down on the ground, and he gets fed a whole bunch of cheap shots." 

According to Harris, the “street justice” and “cheap shots” being delivered to “buddy” was “not ok”.

This begs a wicked questionable question: if members of the Calgary Police Service were delivering a “whole bunch of cheap shots” to a man who was surrendering, why did Harris – a police officer who took an oath to serve the community – let it happen? Why did Harris not intervene to actually stop the “street justice”?  Why did Harris not commence an investigation into the officers who may have assaulted the surrendering man?

I appreciate that at trial Harris testified that he yelled “YouTube alert” to try and stop the police from attacking the man.  I think it is safe to say that this is hardly sufficient. 

To contemplate this, simply imagine that the men attacking Clayton Prince were not police.

If an ordinary person was delivering some cheap shots to another person on the street, I suspect that Harris’ response wouldn’t be “YouTube alert”. Rather, I suspect he would, at a minimum, intervene to stop the attack. Further, I suspect that there is a very strong possibility that he would even act to (1) place the attackers under arrest for assault, (2) initiate a criminal investigation and perhaps (3) lay a criminal charge. After all, this is his duty.

Additionally, as reported by the CBC, Harris apparently did not submit notes about the incident on grounds that “[his notes] could have negative consequences for the officer’s involved”.

So, let’s get this straight: since it was the police who were purportedly involved in the attack, Cst. Harris decided not to submit notes because his fellow officers might suffer consequences. Essentially, it appears Harris decided not to create (or submit) potential evidence because his pen could jeopardize fellow law enforcement members. Seriously? 

If this is true, Harris’ decision not to intervene to stop the attack by police, combined with his purported decision not to submit notes on grounds that his fellow officers might suffer consequences, confirms a longstanding problem that there is a vastly different application of our criminal law to law enforcement members. Arguably, police are allowed to get away with violent crime, even when other police see it happening.

In the opinion of this Calgary criminal lawyer, this is unacceptable; for in my view, the most peaceful members of our society should be police.  Police should be honest -- they should not turn a blind eye to themselves. Police should not administer street justice or cheap shots. When it comes to police, violence should be a last resort and only that which is necessary.  There is little doubt in my mind that "cheap shots" are not necessary.  

Since a "cheap shot" constitutes a covert, unsportsmanlike or illegal act of roughness, I think there is a good chance that Clayton Prince was assaulted by the police in view of Cst. Harris. Having observed this, Cst. Chris Harris had a greater obligation to intervene than merely having a teaching moment with a recruit, yelling "YouTube Alert" and declining to submit notes because his words could have consequences for the police.

https://calgary-law.ca/blog/the-swing-hook-weapon-justification/

CONCLUSION

What I found striking about Cst. Harris’ lawsuit to defend his reputation is that even if his interpretation of the audio is correct, his reputation – along with that of the Calgary Police Service – is tarnished.  Simply stated, if Cst. Harris believed that his fellow officers were delivering cheap shots, he had a duty to do more to stop the attack.  He had a duty to preserve his evidence, not hide it.

What is further striking about Cst. Harris’ “YouTube” alert comment is that the camera may be the only protection a citizen has against police violence.  I mean, according to Harris, the concern was not really with the witness in the “white van”; the concern was that the witness in the white van could be videotaping. 

Ask yourself why Harris seemed so concerned with videotaping and not so much concerned with the witness itself.

In my article titled the "Swing Hook Weapon Justification" I posited this question:

If Cst. Dunn was prepared to use this technique, with this level of force against a petite girl in handcuffs, while in a police station and while in the presence of cameras and other officers, what is he prepared to do to people on the street?  

The same question applies to the incident involving Clayton Prince. For by extension, if police are not subject to a YouTube alert, what are they prepared to do to people on the street?  If police are prepared to decline to produce evidence (such as notes), are they prepared to conceal video, hide audio or perhaps even tamper with evidence? 

More wicked questionable little questions.

By way of a final comment: did Cst. Harris’ attempt to defend his reputation by filing an injunction to stop the screening of “No Visible Trauma” actually cause “visible trauma” to the Calgary Police Service?   What do you think?

David G. Chow

Calgary Criminal Lawyer

There are many quality Calgary criminal lawyers to choose from. David Chow thanks you for reading and if you are searching for a criminal defence lawyer in Alberta, appreciates the opportunity to earn your business.  David defends the entire spectrum of criminal offences, including but not limited to domestic assault, drug trafficking, impaired driving and all crimes of violence, including murder.