Canadian Broadcasting Corporation v Attorney General of Ontario 2015 ONSC 3131

In dismissing the application, while finding that there is a “real” practice of Media-Presence Surveillance, Glustein J. found no evidence that the practice includes responding to identity questions from protesters or others by posing as a journalist.

In describing Media-Presence Surveillance, Glustein J. stated at para 30:

…The role of a plainclothes officer is not to take on a particular role but rather to “hide in plain sight” or “blend in” by being dressed as a civilian. Plainclothes surveillance by officers dressed in civilian clothes is frequently effective. These officers may carry a camera or small video camera, as may any member of the public. These cameras are unmarked and do not carry any media logo.

Glustein went on to say, at para 33:

There are numerous situations in addition to public protests where the OPP deploys plainclothes officers to obtain surveillance evidence. Plainclothes officers may capture photos and/or video of individuals involved, analyze these images and then lay charges later if required. Plainclothes OPP officers gather intelligence during these events, including public protests, to preserve the peace and to protect the protesters and the public.

Glustein J. then stated, at para 148:

…the issue of whether Media-Presence Surveillance violates s. 2(b) depends on two sub-issues: (i) whether the evidentiary record supports a finding that there is a chilling effect on news gathering as a result of the practice, and (ii) in any event, whether such a finding can be made by the court as a matter of common sense.

He concluded, at para 220:

I find that the evidentiary record before the court does not establish a direct link or causal connection between Media-Presence Surveillance and restriction on freedom of expression.

And, at para 232:

…I do not find it “self-evident”, or a matter of “common sense”, or that “no reasonable person would dispute” that Media-Presence Surveillance would have a chilling effect on freedom of expression.

Justice Glustein concluded that the applicants had not established that Media-Presence Surveillance violates s. 2(b).

However, the Appeal from this decision has been settled and withdrawn, on terms that include the signing of the attached Statement of Principles by the OPP. This may be useful in future cases that raise these issues.