Undercover cops cripple press freedom

by Ruth Mestechkin
Many big-city police departments across Canada are willing to pose as journalists to catch the bad guys. And they are genuinely perplexed about why anyone would object.

By Ruth Mestechkin

A Vancouver police officer caught and arrested an anti-poverty protester last May in B.C.

That’s pretty run-of-the-mill.

Except for one whispered detail behind the curtains: the officer was undercover as a writer for local paper 24 Hours. He rang the protester and cooked up a meeting spot for an interview.

And snap went the handcuffs.

Tim Fanning is the Media Relations Officer for Vancouver Police Department (VPD). He says it isn’t likely the VPD will stage an encore.

“The media make a really big issue out of it,” says Fanning. “The public don’t mind.”

Many major police departments in Canada are game to consider posing as a journalist to combat crime. Others say they have already used the tactic, and would do so again. A KJR survey of police practices in Vancouver, Halifax, Toronto, Winnipeg, Calgary and Ontario found that not one department would rule it out.

But the real kicker? Police don’t understand how this practice stings journalists.

Organizations like the Canadian Association of Journalists (CAJ) have blasted police impersonation of media in undercover missions. Past president of the CAJ and Chronicle Herald reporter Paul Schneidereit says the group has voiced the problem to cops more than once: posing as journalists harms the credibility of the job.

“I shouldn’t say with a broad brush that all cops don’t get it,” says Schneidereit. “But certainly some continue not to get it because we see incidents where this sort of thing goes on.”

Gotcha! — hiding the badge is a ruse

The set-up in Vancouver points to Schneidereit’s plaint.

“(The officer) said, ‘I’m so and so from 24 Hours, meet me here, I want to talk to you.’ And the person was arrested,” explains Fanning. “It wasn’t even undercover. He was just saying he was somebody on the phone.”

Fanning adds there wasn’t even an interview. The situation is similar to, he says with a chuckle, those “hilarious” stories where police tell suspected criminals they’ve won the lottery, send out a stretch limo and cruise them straight to prison.

“It’s just a ruse to get somebody so they won’t run from the police,” he says. “If you look like a police officer, you’re not going to have any luck.”

Police posing as journalists isn’t commonplace. Const. Jeff Carr, Public Information Officer of Halifax Regional Police, says it hasn’t happened in his department.

“No one’s ever posed as a journalist here, nor do I foresee a situation where we would,” he says. “But never say never, I guess.”

A policy for going undercover as journalists to break into a group doesn’t exist, explains Carr.

“We’ve got policy on undercover operations,” he says, adding that posing as a journalist falls under this category.

Not all departments are raring to show and tell. The Toronto Police Department’s Sgt. James Hogan says disclosing undercover work can shatter an investigation. Terry Kolbuck of the Winnipeg Police Service also keeps mum. He says it’s not a practice that ever happened in Winnipeg.

Both refused to say whether or not their departments would consider the action in the future.

Sgt. Marc LaPorte, Media Relations Officer for the Royal Canadian Mounted Police (RCMP), will spill more.

“We can use the technique any time we feel that’s the best way to gather the information we need,” says LaPorte. “It’s a tool that’s at our disposal. The courts require the best evidence possible and sometimes the only way to get it is through the technique.”

LaPorte can’t unveil the circumstances that lead to undercover techniques, but says the police force is permitted to use these measures.  Like Halifax, the RCMP has no specific policy.

“Our policy is fairly broad and it doesn’t specifically say when to use a specific technique or not to use a specific technique,” explains LaPorte

And the RCMP hasn’t pencilled in any future policy revamp.

Did it before, and I’ll do it again

In June 2007, the CBC reported an Ontario Provincial Police (OPP) officer went undercover as a journalist at a Mohawk protest on the Aboriginal Day of Action. The case cracked one year later in July 2008 when the CBC learned of the guise. It reported the officer in question, Const. Steve Martell, said there were no real rules regarding this practice.

Sgt. Pierre Chamberland, Media Relations Coordinator for the OPP, explains the officer didn’t intend to pose as a journalist — he was pretending to be a member of the public snapping photos. The public assumed he was media. But the officer didn’t deny he was media at the scene to avoid riot breaking out — he played along with the role.

Chamberland says OPP officers have posed as journalists in the past, like the 1995 aboriginal takeover of Ipperwash Provincial Park.

“You have to pose as something that would grant you credibility with the people you’re interacting with,” says Chamberland.

He adds this is a valuable investigative technique.

“If it’s something that we need to do to gather intelligence in an effective manner, we would consider it, for sure,” he says. “The OPP will continue to do this whenever it is required in order to gather intelligence.”

And it’s justified, says LaPorte. He draws the distinction between “portrayal” and “impersonation.”

“I can’t pretend to be, say, (CBC anchor) Peter Mansbridge and go interview somebody and pretend I’m that person,” explains LaPorte. “We usually portray to be something, but not necessarily impersonating another person … So in that aspect, anybody can be a truck driver or anybody can write for a newspaper.”

Criminology professor at Halifax’s Saint Mary’s University, Dr. David Perrier, says this police practice is legitimate within the law if it doesn’t stray from the line of duty and the department waves the green flag.

“If it’s to gather information for some obscure reason or to gain access to information that reporters have, so that they can use that information for some devious reason, then that wouldn’t be legitimate,” explains Perrier. “Is it proper for them to go and act as a cameraman if the law’s being violated and that’s the only access police have? The answer may very well be it is appropriate.”

Every scenario needs justification, says LaPorte. The department will back the job if the officer makes a case for its seriousness, if it’s apt to succeed and if it’s clear this ploy tops the list of other options.

Although he says his police force doesn’t jump to this practice all the time, he says it’s “definitely not the last resort.”

“There are other techniques that we use that are more intrusive,” says LaPorte. “It’s just a tool that we have at our disposal and we use it when we need to use it.”

LaPorte says the media is “most likely not” contacted before the undercover scene is set to play out.

“They don’t want to jeopardize the investigation,” he explains.

Spokesperson for the Calgary Police Service (CPS), Kevin Brookwell, says CPS officers have never posed as media while undercover. It’s also not the first option his department would choose.

But would the CPS ever consider donning the guise?

“Without question,” says Brookwell.

“If it’s determined that being a media person or using that disguise or identity would be the best way to infiltrate or get information or further an investigation,” he says, “then absolutely it would be considered and, if need be, employed.”

We’d like our credibility back now

In this tug of war, the police pull to avoid uncloaking the methods of a secret case. But they don’t see why impersonation causes journalists to fall.

LaPorte pauses for a few seconds to mull it over.

“I don’t know,” he says.

Over to you, Chamberland.

“I … don’t know,” he says with a sigh. “I can’t really answer that question.”

Fanning doesn’t know either.

“No reporter ever said, ‘I was denied an interview with somebody because they thought I was a cop,'” he says. “I talked about it a lot with reporters after it happened. It didn’t seem to have any influence on their job.”

Brookwell says undercover action may never end up hurting any professional group. His department never exposes the identity of the undercover officer and some tactics are never revealed in court.

“That would compromise the ability of police to ever employ those again,” he says.

This is the same argument journalists are making: their methods risk being compromised when police borrow their identity.

But the reporters aren’t sitting still with zipped lips.

“Media has to have the trust of people,” says  CAJ director and Canadian Press reporter Murray Brewster. “It’s tough enough to gain the public’s confidence or the confidence of sources without that sort of thing happening. People are extremely distrustful today, and that really doesn’t help.”

Schneidereit argues police actions can hurt journalists’ reputation.

“They’re using means that interfere with the functioning of an important part of society, and that’s the free press,” explains Schneidereit. “I object to it. I fundamentally object to it.”

The risk here, says Schneidereit, is shrivelling trust.

“Police actions of impersonating reporters plant a seed of doubt in the public’s mind about whether or not they can trust the person who is purporting to be a journalist is actually a journalist,” he says. “Police actions have basically chilled potential sources.”

Julie Payne is the manager of Canadian Journalists for Free Expression (CJFE). She says the CJFE has written to the Minister of Public Safety in Ontario, Rick Bartolucci, in protest of police actions in the Mohawk case.

“What I’m more concerned about is the way the public regards a journalist at a protest or at some controversial situation, and that they won’t be able to trust whether this person they’re speaking to is really a journalist or whether it’s an undercover police officer,” explains Payne. “That compromises the journalist’s ability to get the story, to get the news out, and it compromises their potential as a journalist.”

The CJFE is pounding on the ministry’s door for a set of guidelines for Ontario police officers. They want journalist impersonation outlawed.

Ontario Ministry of Public Safety spokesperson Anthony Brown isn’t about to twist the knob. He says the ministry doesn’t set a policy on how police should conduct their investigations. And a policy doesn’t exist in other provinces either.

“Police will make the decision as to what’s best in their view,” says Brown. “Police are free to conduct investigations as they see fit, so long as it is within the law.”

Brown adds there are no plans for future policymaking or revisions.

President of the Canadian Civil Liberties Association, Marsha Hanen, shifts the spotlight on police convenience.

“The real trouble with these things is that they become easy ways of doing your job,” says Hanen. “I can’t do my job if they know I’m a police officer so I’ll just be somebody else and I’ll be able to do my job better.”

Journalists have aired their alarm to police and their political heads. But something gets lost in translation.

“The problem is that cops don’t seem to get it. They don’t seem to understand why it makes journalists angry,” says Schneidereit. “They’re trying to catch criminals and we don’t have any objection to their goal, but it doesn’t mean that we accept that they go about that using any means.”

There is a role for undercover police work, says Janet Keeping, President of the Sheldon Chumir Foundation for Ethics in Leadership, but it’s not so black and white.

“On the one hand, you have to concentrate on the law enforcement value,” says Keeping. “On the other hand, we know the press is really important to the healthy functioning of society. And the worry here is that our press won’t function as well in protecting our interests, in providing the information we need in acting as a watchdog on the rest of us in society.”

She’s also treading in quicksand as she tries to piece together police reaction.

“I would have thought police forces would say, we understand what you’re saying but it was more important to get these guys,” says Keeping. “But to not really get it, you’re undermining the public’s confidence in journalists.”

It’s not just a one-time deal.

Click one of these links to learn more about police undercover operations.

Mohawk Protest and Ipperwash Takeover

Vancouver Anti-Poverty Protest

The Canadian Journalists for Free Expression Statement to Ban Journalist Impersonation

Canadian Association of Journalists Statement on Independence from Police

The Canadian Department of Justice’s Concerns with Undercover Operations

Parliament of Canada Bill C-24 Allowing Police to Engage in Undercover Operations