Waseem Khan knew he had the right to use his phone to film Toronto police officers as they arrested and Tasered a man on a downtown street corner.

He was standing an appropriate distance away and not obstructing the officers.

He was performing what he believes to be his civic duty — holding his city’s police service accountable for their actions, particularly when vulnerable or marginalized people are involved.

He did not expect the police officers to try to stop him from filming, or warn that his phone would be seized as evidence if he continued.

This week, Khan, 33, received an apology from the Toronto police sergeant who ordered junior officers to “get that guy out of my face, please.”

The statement, read out at a police tribunal hearing, came after Khan’s complaint to the Office of Independent Police Review Director was investigated and charges of discreditable conduct and use of excessive force were laid against Sgt. Eduardo Miranda.

“Sgt. Miranda wishes to acknowledge that on January 24, 2017 he had no authority or grounds upon which to prohibit Mr. Khan from video recording the police interaction with a member of the public,” said the statement read out by Miranda’s lawyer. “Mr. Khan was acting lawfully, was not interfering with the arrest in any way, and had every right to film the police in the course of an arrest. Sgt. Miranda regrets interfering with Mr. Khan’s attempt to film.”

Both charges were withdrawn following mediation facilitated by the OIPRD. The settlement — which does not have any financial aspect — was approved by the OIPRD and is confidential. Andrew Henry, the man who was arrested, did not participate in the mediation, according to Selwyn Pieters, Khan’s lawyer.

Both Pieters and Khan said they believe Miranda’s apology was sincere.

“(Miranda) came away a better person and a better police officer,” Pieters said. “We want (police officers) to learn from their mistakes.”

Khan said he made the complaint thinking about what would make the most change across the police force as a whole.

The victory, for him, is that a written order was distributed to police officers after the incident stating that the public are completely within their rights to record police officers, cementing what a Toronto police spokesperson said at the time: “Let me be clear: we have told our officers if somebody is videoing them and they are not obstructing and interfering, they have every right to film.”

A Toronto Police spokesperson confirmed a training advisory was issued in February 2017. It stated, in part, there is no authority for police officers to seize cellular phones or other recording devices simply because they are being used to record police activity.

Earlier that year, another mediation settlement in a similar case resulted in the condition that Toronto police officers would receive training on the fact that citizens have the right to film officers as they work.

“And we should record,” Khan said. “If we see police officers doing something wrong or unjust, I almost feel that it is a civic duty that we take out our phones and record them.”

Khan sees the police response to him taking the video that day as “illustrating the problem I think that we have with Toronto police services and often police everywhere with no check to their power and no accountability on how they treat the public, especially minority communities, racialized communities.”

Henry was arrested and charged after an altercation that allegedly began when he spat at a staff member at a downtown homeless shelter. A police spokesperson at the time defended the force used by police during the arrest.

Officers caught up to the suspect in the Dundas and Church area Tuesday morning. Police say the officer had been responding to an assault call at another location when she was assaulted by the suspect. He then fled the scene.

Henry’s case was initially transferred to the mental health court at Old City Hall. The Ministry of the Attorney General said it has so far been unable to locate his court file. As a result, the Star could not verify the status of his case.

Loading... Loading... Loading... Loading... Loading... Loading...

Police said Henry punched a female officer who arrived at the scene and bit a construction worker who intervened. After he was placed in a police car, police said he kicked out the window of the cruiser and then bit an officer. He was then pulled out the car by officers.

It was at this point that Khan started filming, he said because he saw a police officer appear to kick the man in the head. Khan was standing about six meters away, along with other bystanders who had stopped to watch.

The video shows police using a Taser on the man and appearing to stomp on him as he is on the ground. Police said Henry was Tasered because he still had an officer’s hand in his mouth.

The officers then ask Khan to move back, and he protests that he has the right to record: “I’m not obstructing your arrest. I’m not involved in the investigation.”

Miranda gestures towards Khan and loudly instructs junior officers to “get that guy out of my face, please.”

When Khan objects and says he is a witness, officers warn him they will seize his phone as evidence, which they did not have the authority to do. One of the officers tells Khan the man police are arresting is “going to spit in your face, you’re going to get AIDS.”

This comment — widely condemned as wrong and offensive — especially bothered Khan, given that 51 Division covers an area that includes the Gay Village. At the time, Alexander McLelland, a researcher in the criminalization of HIV non-disclosure, observed that: “if the man being restrained is indeed living with HIV, the police officer breached his privacy. Worse, he did so to incite fear.”

Following the release of the video, Toronto Police spokesperson Victor Kwong apologized for the comment and said 51 Division would bring in an HIV expert to train officers. He also tweeted a correction: HIV, the virus that causes AIDS, is not spread through saliva.

None of the junior officers at the scene, including the officer who made the comment, were charged under the Police Services Act. The OIPRD investigation found that their actions “brought discredit” upon the Toronto police service, but that the misconduct could be resolved without a hearing.

Khan said police officers should be held to high standards about how they interact with the public, and they must treat people fairly and equally, no matter what neighbourhood they live in or what background the person is.

Citizen videos, like the one he took, help ensure that police actions are scrutinized, he said. “This needs to be important to us.”

He said he hopes the incident has helped the public know what their rights are when it comes to filming the police.

“Recording is one of the ways to protect (citizens),” he said. “We shouldn’t need to protect them against police but it seems like we do.”

With files from Wendy Gillis