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Blog January 13, 2017

Journalists, police, and democracy

Last fall the news broke that Quebec police forces had been spying on journalists, over a period of time and almost as a matter of routine. Not only did Montreal police obtain warrants to tap into the phone and electronics of Patrick Lagacé (La Presse), close to a dozen reporters and journalists have been monitored by municipal and provincial forces, acting with and without warrants. The ensuing outrage focused on the alarming invasion of privacy and revelation that some violations took place with the law’s blessing, under warrants issued by justices of the peace. For the public, the point of connection was not so much innate sympathy or concern for the press, but this: a realization that if members of the institutional press could so easily be watched, the community at large was that much more vulnerable to unseen and unknown police surveillance.

That authorities could choose targets, with apparent impunity, is and is not the point of the scandal. In a way it is, because privacy in this technological age is a threatened and fragile value, and no one knows for sure whether or when ours might be compromised, or by whom. Yet the press and media are a special case because they stand in a constitutional zone that guarantees their freedom from interference by the state.  With that in mind, it is troubling that any warrants against journalists were available to the police. It is even more disturbing that the Lagacé incident was not isolated, but in effect formed part of a dragnet aimed at the covert and insidious infiltration of the press by municipal and provincial forces.  

Spying on journalists and reporters without a warrant is one matter, but doing so under the legitimacy of a warrant is another. If it is unclear which is worse, it is difficult to fathom how the law, and the Charter of Rights and Freedoms, allowed these warrants to issue.

Freedom of the press and media are protected by s.2(b) of the Charter, which also guarantees freedom of expression. Media issues are subsumed under freedom of expression in most Supreme Court of Canada decisions, though a few address the Charter status of the press.  These cases acknowledge the vital importance of a free and independent press corps but stop short of granting it the constitutional status and protection it requires.

Many years ago, the CBC challenged search warrants for video footage of violent demonstrations which would help police identify criminal offenders. The warrants in question covered clips that had been broadcast, as well as raw footage. Although the Court recognized the need for vigilance before allowing a search of the press, it found that the warrants did not violate the Charter.  Justice Cory’s majority opinion chastised the CBC for resisting and added that the broadcaster should be willing, like any good citizen, to surrender relevant evidence to police (note the Court’s italics).  Meanwhile, Justice L’Heureux Dubé rejected the suggestion of different treatment for the press; in her view, different was a proxy for preferred or favourable treatment under the Charter, and was offensive for that reason. Both judges failed to understand that the press and media play a critical and distinctive role in democratic governance. For that reason, this institution must remain independent and, absent compelling circumstances, cannot be co-opted – by search warrants or otherwise – as an investigative arm of the state.

Many years later, the Supreme Court refused to protect a National Post reporter’s confidential source in an ongoing investigation into the Shawinigate scandal, which related to then Prime Minister Chretien’s alleged conflicts and breaches of ethics.  The reporter and newspaper could not withhold the envelope, which contained an allegedly forged bank document, because it constituted physical evidence of a criminal offence.  Even at the level of principle, the Court’s hostility toward the reporter and his claim of journalist-source privilege was unmistakeable.

Again, the Court missed the point, failing in National Post to understand the role of confidential sources in investigative journalism. The Shawinigate investigation was ongoing and had revealed damaging information about the prime minister’s business dealings and affairs. Andrew McIntosh won recognition and an award for his reporting. Yet the Court focused its attention on one event in a long saga of investigative journalism – the envelope’s delivery to McIntosh.  As the dissent pointed out, any DNA on the envelope had long since vanished, making the envelope functionally irrelevant as evidence, and alternative sources of evidence to test the bank document’s authenticity had not been fully explored. In balancing the interest in investigating the alleged forgery against the interest in protecting the source, the Court gave little credence to the broader context of Shawinigate: McIntosh’s sources over a period of years; suspicions about the integrity of bank documents; the many parts of the story; and the reporter’s role – in investigating and telling the story – in promoting transparency and accountability values. The Court also refused to grant confidential sources constitutional status, claiming that Charter values could infuse judicial decision making on a case-by-case basis and, in that way, protect confidential sources in appropriate circumstances.

A companion case decided at the same time softened the law’s position on confidential journalist sources.  The Court took a more benevolent view in circumstances arising from the Quebec sponsorship scandal, in which a Globe & Mail reporter sought protection for his confidential source, “Ma Chouette”.  The sponsorship case proposed a more protective approach, and suggested that National Post could be narrowly read as a decision on physical evidence. Even so, I called for legislative reform to create legal protection for the confidential sources for journalists, reporters, and news entities engaged in the work of newsgathering and news dissemination.

Vitally, the democratic function of the press and media is concerned with paramount values of transparency and accountability. The traditional press and media currently face economic and technological challenges that threaten the survival of the institution. And, it should not be ignored that public perception is negatively influenced by unsavoury moments and practices – i.e., sensationalism; profit mongering; privacy invasion; disregard for the truth; phone hacking; chequebook journalism, and etc. But those moments are part of a commitment to freedom that also and primarily counts on members of the press and media to serve democracy’s purposes with dedication, courage, and honour.

The institutional press and its professionals are largely responsible for holding public officers and powerful public figures accountable. Importantly, this bulwark of democracy discharges that responsibility through practices conducted for the most part at a high level of ethical professionalism: newsgathering through access to information legislation and reliance on sources, whether confidential or not. For journalists and reporters to be subject to covert surveillance by police, as occurred on a large scale in Quebec, is a serious violation that places the lines of transparency and accountability in our system of democratic governance dangerously at risk. The importance of a free and independent institutional media could hardly be more important than it is today, as president-elect Trump prepares to take office in a few days.

In domestic terms, two issues must now be addressed, across Canada as well as in Quebec: one is statutory protection for confidential journalist sources; the other is protection from covert searches on journalists and reporters, not only as part of a particular investigation but also when police are on a snoop at large to find out who has been talking to members of the media.

It is no secret, as Juliet O’Neill and others in Canada and the US can attest, that reporters and news institutions are targeted by agencies of the state to find out who among their own ranks has been disloyal or a whistleblower. Inevitably, some sources are honourable and others are not. As I have said elsewhere, “[t]he unavoidable paradox is that journalists cannot tell some secrets without promising to keep others, and pursue objectives of transparency and accountability in their reporting, despite [necessarily] being neither transparent nor accountable for their own sources”.

A privilege for confidential sources cannot be absolute, and nor can the press and media claim exemption from search by police in all circumstances. Still there must be a strong presumption in favour of the press, media, and journalists, which is subject only to exceptions that are defined and tested by a rigorous, evidence-based standard of justification.

Quebec has called a public inquiry and federal Senator Carignan recently introduced Bill S-231, which would protect journalists and reporters from the police and is titled “The Journalist Source Protection Act”. Bill S-231’s status as a private bill makes its prospects for enactment uncertain, though much can be done to encourage it along. A preamble articulating the bill’s purposes in light of the democratic role of the press and media might be a valuable addition. As well, the legislation might gain momentum once Quebec’s inquiry is underway. The time is now for long overdue steps to be taken which would protect confidential sources and prevent unconstitutional police searches of the press and media. Organizations and commentators should mobilize around the inquiry and Carignan initiative, with the objective of securing legislation, at federal and provincial levels, to protect and secure the democratic function of the press and media.