Police impersonation of journalists did not violate s. 2(b) of Charter

CONSTITUTIONAL LAW

Police impersonation of journalists did not violate s. 2(b) of Charter

Applicants sought declaration that practice of Ontario Provincial Police officers impersonating journalists for purposes of criminal enforcement and investigation violated s. 2(b) of Canadian Charter of Rights and Freedoms and could not be justified under s. 1. Application dismissed. There was evidence that OPP officers did not engage in undercover operations as journalists but they did engage in media-presence surveillance. There was real practice of media-presence surveillance. However, there was no practice of plainclothes OPP officers engaged in media-presence surveillance to identify themselves as journalists if questioned about their identity. There was no evidence of any practice of impersonating journalists arising out of independent author operation or from police order. Only real and not theoretical practice that could be considered was media-presence surveillance. Pleadings were broad enough to encompass challenge to media-presence surveillance and it was properly before court. Effect of media-presence surveillance on freedom of expression was raised through correspondence with minister and OPP as soon as applicants became aware of issue, in application record before court and was fully addressed by respondents. Evidence did not establish practice of OPP posing as journalists through police order or independent author operation and they were not proper constitutional issues to be considered by court. Constitutionality of those issues was also not raised in application and it would cause prejudice to respondents to have court make findings on issues in absence of pleading. None of impugned conduct violated s. 2(b) of Charter. Evidence did not establish that media-presence surveillance had chilling effect on freedom of expression. Evidence did not establish direct link or causal connection between media-presence surveillance and restriction on freedom of expression. It was not common sense or self-evident that journalists would be in increased danger as result of media-presence surveillance. Connection between media-presence surveillance and restricting flow of information from journalistic sources or increasing danger to journalists was not indisputable. Applicants failed to establish that media-presence surveillance violated s. 2(b) of Charter. 
Canadian Broadcasting Corp. v. Ontario (Attorney General) (Jul. 23, 2015, Ont. S.C.J., Glustein J., File No. CV-10-409382) 256 A.C.W.S. (3d) 314.