Police decision to release photo of Jays suspected beer-can thrower comes with risks

The decision of Toronto police to release the picture of a man alleged to have thrown a beer can at a Baltimore Orioles outfielder during their game against the Toronto Blue Jays is not particularly unusual, as they often resort to such measures when searching for a suspect.

But David Fraser, a Halifax-based privacy lawyer, says in this case, police may not have made the most prudent of moves. 

"My inclination is to say the magnitude of the offence doesn't necessarily warrant [the release]," said Fraser.

"This was one person doing something stupid that didn't kill or injure or maim anybody in any significant way."

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The incident, in which a beer can was chucked at and narrowly missed Orioles outfielder Hyun Soo Kim, has sparked widespread condemnation and an official apology from the Blue Jays. It also prompted the Toronto Sun to offer a $1,000 reward for information leading to the arrest of the beer-can thrower.

Social media impact

Fraser said he can appreciate that police want to identify the culprit and that the sharing of information often leads to important arrests. But he said police need to consider whether the crime is proportional to the response they will get, meaning a picture like this will go viral through social media.  

And if the police have the wrong individual, that person will have to deal with their image and this incident showing up in search results for the rest of their lives.

"If this person was misidentified, then this is going to follow him. This has taken a life on its own and this is going to have significant consequences," Fraser said.

If it turns out that the police got it wrong ... it would turn an embarrassing situation for the city into an even more embarrassing situation- Nader Hasan, criminal lawyer

The police have said they have video footage of the incident and are "confident we have made a positive ID." But the man in the picture, identified as Ken Pagan, a Postmedia employee, has suggested that "the police may have it wrong."

Pagan turned himself in and has been charged with mischief.

Toronto-based criminal defence lawyer Nader Hasan says whether the police made the right move depends on whether they have reasonable grounds to believe that an offence has been committed and how sure they are about zeroing in on the right person in the crowd.

How certain were they?

If police have a strong basis for believing that they know what the suspect looks like, but do not have a name or address, then releasing a photo is a legitimate way to conduct the investigation, he said. 

But if there was some uncertainty, it would have been been preferable for officers to give the individual more time to turn himself in before an image was distributed, he said.

"Given the public furor and the fact that the entire world is watching and the fact that this man has now been made public enemy No. 1, the police ought to be sure they got it right," Hasan said.

"If it turns out that the police got it wrong ... it would be absolutely catastrophic, and it would turn an embarrassing situation for the city into an even more embarrassing situation."

Toronto lawyer Daniel Lerner, who was formerly an Ontario Crown prosecutor, said police need to have a reasonable basis to believe the person did something wrong and that it's necessary to make that information public.

They also need to balance how important it is to identify the individual quickly against whether there are any other investigative steps they can take to determine the person's identity, he said.

You hope the police don't rush into doing it. You hope this was a reasoned decision.- Daniel Lerner, former Crown attorney

When he worked as Crown attorney, Lerner said police, in some cases, would ask for legal advice about releasing a photo of a suspect. 

"Because it can be a very difficult situation. You hope the police don't rush into doing it," Lerner said. "You hope this was a reasoned decision, it was thought about, they went through how important it is to find this person as quickly as possible and how many other investigative steps have [they] done before [they] do this."

Carissima Mathen, a law professor at the University of Ottawa, said that while the incident was no trivial matter, some people might question whether the police released the image because it occurred during a high profile game that attracted millions of viewers and had the potential to sully the city's reputation.

'Risk by enraged members of the public'

Police have to be careful in "potentially putting people in a position where they could be in some risk by enraged members of the public," she said.

What if it is the wrong guy?

Internet and defamation lawyer Gil Zvulony said that, if police are wrong, the individual identified would have little legal recourse, as long as investigators weren't reckless and didn't act maliciously but in good faith.

"If it is the wrong guy, then he should take this 15 minutes of fame that he has to straighten the record so that every story that talks about the incident has his side of the story," Zvulony said.