An Ontario court has struck down a Charter challenge against a police practice of officers posing as journalists for investigative purposes.
“The ruling is disappointing in that the court’s approach makes it extremely difficult, if not impossible, to challenge police practices that are publicly reported and widely known to exist but are also inherently covert and can rarely be traced to specific cases,” says Philip Tunley, a lawyer who represented the media groups who challenged the police practice in Canadian Broadcasting Corp. v. Attorney General of Ontario.
In an application heard by the Superior Court of Justice this May, the CBC, Canadian Journalists for Free Expression, and RTDNA Canada, an electronic journalists’ association, asked the court to declare that “the practice of Ontario Provincial Police officers impersonating journalists for purposes of criminal enforcement and investigation” violates s. 2(b) of the Canadian Charter of Rights and Freedoms.
In a ruling last month, however, Justice Benjamin Glustein struck down the challenge, writing that the group wasn’t able to prove that police tactics, such as using plainclothes surveillance of protesters in the presence of news media, have a chilling effect on freedom of speech.
Specifically, the news media groups were challenging three separate practices by the OPP: surveillance by plainclothes officers of protests in the presence of media; undercover operations such as a 2009 incident in which an OPP officer posed as an author in order to get information from a federal inmate; and practices related to OPP Police Order 2.8.6 that allows an officer to pose as a “person in authority” — a category that includes journalists — subject to the approval of the commander of the OPP’s provincial operations intelligence bureau.
Glustein, however, ruled that the OPP didn’t undertake the second and third of those actions to count as “practices.” The 2009 incident, he found, was the only known instance of an OPP officer impersonating an author and there’s no evidence at all that they’ve impersonated journalists under Police Order 2.8.6, the ruling stated.
“Consequently, the only ‘real’ and not ‘theoretical’ practice which could be considered by the court is Media-Presence Surveillance” or surveillance by plainclothes police in the presence of journalists, wrote Glustein.
But media-presence surveillance doesn’t violate the Charter, Glustein ruled.
In his decision, Glustein looked first at whether the evidence filed by the media groups established a connection between media-presence surveillance and media chill and then considered whether such a link is “indisputable” or based on common sense.
The evidence filed by the media groups, he found, was unable to “establish a direct link or causal connection between Media-Presence Surveillance and restriction on freedom of expression.”
Glustein also cited an affidavit from an OPP chief superintendent who testified that he “was not aware of any occasion on which an undercover OPP officer had posed as a journalist” partly because the risk of being found out would be too high.
Plainclothes officers doing media-presence surveillance don’t assume particular roles but rather attempt to merely “blend in” by appearing to be civilians, wrote Glustein.
Among the examples of media-presence surveillance the media groups brought before the court was an incident during a 1995 protest at Ipperwash Provincial Park. Two OPP officers were ordered to do plainclothes surveillance of protesters at the park and in response to a question from someone present among the group of journalists, one of the officers replied that he was freelancing for “U.P.A.,” which, when pressed, he said stood for United Press Associates.
Glustein’s ruling suggests he didn’t accept that the episode was proof that OPP officers impersonated journalists. The officer’s response, he wrote, “was an on-the-spot . . . reaction to a series of questions. It was not part of pre-planned undercover personas. The constables were not at Ipperwash in any undercover capacity to pose as journalists.”
Tunley says he was disappointed with Glustein’s analysis of the evidence in “a very technical, segmented way.”
“He just didn’t come to grips with what we say is a single practice with various manifestations and he instead made us break it down and prove the individual elements one by one to a high standard,” says Tunley.
The media groups, according to Tunley, are considering an appeal.
Peter Rosenthal, who represented intervener and native activist Shawn Brant, says he was disappointed at distinctions Glustein made, such as the one between undercover police officers posing as particular people and plainclothes officers attempting to merely blend in with their surroundings. Those distinctions, he says, don’t matter when it comes to the effect that police have on free speech when they act as though they were journalists.
“If officers try to act as though they’re journalists by blending in or posing or whatever word you want to use . . . their cover is to try to be journalists. And that does have a chilling effect,” he says. “Non-journalists might feel that the potential person interviewing them or just watching them and looking like a journalist is really an officer.”
Brendan Crawley, a spokesman for the Ministry of the Attorney General, the respondent in the case, said the province’s position “was that the Ontario Provincial Police used investigative techniques that were in accordance with the law and do not infringe freedom of expression under the Charter,” but he declined to comment further.