51: The percentage by which the number of missing-records complaints submitted to the information commissioner increased from 2012 to 2013.
20: The approximate number of countries in which Communications Security Establishment Canada (CSEC) conducted surveillance for the National Security Agency (NSA) in the U.S., according to documents leaked by Edward Snowden.
5,000: The number of dollars that individuals can be fined for disobeying court orders to surrender their computers, cellphones and other mobile devices under Nova Scotia’s Cyber-safety Act.
10: Number of recommendations that Interim Privacy Commissioner Chantal Bernier tabled in a special report to Parliament, calling for reforms to Canada’s federal privacy law.
2: The number of years that the Public Servants Disclosure Protection Act, Canada’s federal whistleblower law, is overdue for its first independent review. Enacted in 2007, the Act is supposed to be reviewed every five years.
447: The number of demonstrators arrested by police during anti-capitalist protests held in Montreal on May 1, 2013.
5: The number of media outlets the RCMP asked to submit raw footage captured during antifracking protests in New Brunswick in 2013. These include Brunswick News, Global Maritimes, CBC, APTN and Rogers TV.
6,500: The approximate number of dollars protestor Katie Nelson says she was fined by Montreal police during and after student protests in 2012.
140+: The number of organizations, including CJFE, calling for the Ontario Legislative Assembly to pass Bill 83. If passed, the bill would make Ontario the second province in Canada to enact anti-SLAPP (strategic lawsuit against public participation) legislation.
56: Canada’s position on the Global Right to Information (RTI) Index, published by the Centre for Law and Democracy in September 2013. This rank places Canada in the bottom 50 per cent on an index that evaluates the quality of a state’s national RTI law.
3: The number of times the RCMP arrested journalist Miles Howe in 2013 while he was covering anti-fracking protests in New Brunswick.
9: The number of federal institutions, out of the 11 investigated by the information commissioner, that do not store their employees’ instant messages on a central email server. As a result, any information that falls under the Access to Information Act but is deleted from employees’ mobile devices cannot be recovered for the purposes of responding to an ATI request.
18: Canada’s position on the 2014 Press Freedom Index, published by Reporters Without Borders. While Canada climbed two spots since the 2013 Index, it is still eight spots down from its ranking in 2012.
340: The number of days by which Transport Canada sought to extend its 30-day deadline for responding to a reporter’s ATI request regarding the Lac-Mégantic derailment of July 2013.
Canadian Committee for World Press Freedom (CCWPF)
Fédération professionnelle des journalistes du Québec (FPJQ)
© CJFE 2014. All rights reserved. No part of this publication may be reproduced without written permission.
IT’S BEEN FIVE YEARS since CJFE launched the annual Review of Free Expression in Canada. Now is a good time for reflection on how things have changed—or stayed the same.
One of our reasons for launching the Review was a noticeable spike in free expression issues. Five years ago, the courts were awash in cases dealing with defamation charges against reporters, the protection of confidential sources and hate speech. Meanwhile, the access to information system appeared to be entering an era of deepening decay, and the Internet seemed like it could become both friend and foe of free speech.
Five years on, freedom of expression is still very much part of the national debate, and it has increasingly become a touchstone in assessing the health of Canadian democracy. A number of concerns are unchanged from 2008-09: the courts remain an important front for freedom of expression, with decisions good, bad and mixed; the federal access to information system is still in crisis; would-be whistleblowers still lack the protections to encourage more of them to come forward; and debates continue over digital rights, Internet access and media business models. Equally, earlier worries about government and corporate use of new technologies for surveillance of citizens have escalated to become a chorus of alarm bells.
Adding to these troubling issues, the government has gone beyond censoring “sensitive” information; now, there’s a growing “verbal culture” in Ottawa that avoids the creation of communications records that could be used to hold officials accountable. This, combined with the destruction of government documents, the disposal of archives and the shuttering of whole libraries, is leading to a “disappearance of history,” where information critical to informed public debate is failing to see the light of day because it has been purged—or worse, it wasn’t recorded in the first place.
After five years, we remain convinced of the need for the Review, and of the urgency with which we must fight the free expression struggle.
Once again, we begin our annual review of the state of free expression in Canada with our Report Card—a shorthand assessment of Canadian institutions and their impact on the most important free speech issues in the country.
The federal access to information (ATI) system continues to be a source of bad news and a bad
grade. Recently released performance statistics for 2012-13, when corrected for the distortion created by one unrepresentative department, show that delays beyond the 30-day time limit still affect almost 45 per cent of requests, while more than 80 per cent of responses are partially or mostly censored. Staffing and budget cuts are crippling the ATI capacity of some departments (for example, see the RCMP case below). There has been a significant increase in complaints about delays and a 51 per cent increase in complaints about missing records in 2012-13. Missing records may be the result of the destruction of, failure to preserve or failure to create records concerning government deliberations and decision-making. Without major reform of the Access to Information Act and a new law requiring the creation of records, Canadians may witness the disappearance of a significant part of our history.
For more information, see “Access Denied!”
Access to information complaints against the RCMP tripled between 2011 and 2013. The RCMP understaffed its ATI office so badly that it could not even acknowledge the receipt of requests, let alone respond to them, within the 30 days required by law. The information commissioner couldn’t start investigating the delays because the requests didn’t even have file numbers to identify them. One request, submitted in September 2012, received a response seven months later, in April 2013, with this explanation: “We cannot give you a time frame for when your request will be completed at this time, but it is approximately half way thru [sic] the process.” The RCMP is working with the information commissioner to correct these problems, but has taken little action so far.
GOVERNMENT TRANSPARENCY IN TRANS-PACIFIC PARTNERSHIP NEGOTIATIONS
Canada joined the Trans-Pacific Partnership (TPP) agreement in 2012 even though it meant agreeing to all the terms previously negotiated, without actually knowing what they are. A draft of the Intellectual Property Chapter, leaked in October 2013, highlighted just how damaging this secret trade agreement could be to free expression. One of the most concerning provisions would require Internet service providers to act as copyright monitors, monitoring and filtering users’ content and Internet access. Canada would have to change its legal framework to align with that of the U.S., which could require amending regulations for patents, copyright and fair use, with severe implications for the freedom to publish and access information.
For more on this topic, see Adam Kingsmith’s article, “Digital Freedoms in Danger.”
WHISTLEBLOWERS: EDGAR SCHMIDT AND SYLVIE THERRIEN
Despite a lack of protections, brave Canadians in the civil service do come forward and blow the whistle at great personal risk. The two most recent examples are Sylvie Therrien, who worked on employment insurance cases in Vancouver, and Edgar Schmidt, a lawyer in the Justice Department in Ottawa. Both are granted a top grade for the personal and professional sacrifices they have made.
FEDERAL AND PROVINCIAL GOVERNMENTS' WHISTLEBLOWER PROTECTION
Little has been done across Canada in the past year to develop a more active whistleblower system or to protect those who speak out in the public interest. Major revisions needed include putting teeth in provincial and federal whistleblower legislation and providing real protection for whistleblowers.
Unlike the United Kingdom, the United States and Australia, Canada is alone in lacking specific legislation that provides whistleblowers with real job security. The limited legislation that covers government employees is essentially powerless, and there’s no protection anywhere in Canada for the private sector. As a result, whistleblowers in Canada almost always face dismissal.
For more on this topic, see David Hutton’s article, “They Blew It.”
ANTI-SLAPP IN ONTARIO
If wealthy logging companies or developers want to silence their critics, it’s fairly easy for them to sue for defamation and bury their critics under mountains of paperwork, years of litigation and expensive legal bills—regardless of whether any libel or slander has actually occurred. These lawsuits are called “SLAPPs” (strategic lawsuits against public participation), and most Canadians, with the exception of Quebecers—who have had anti-SLAPP laws since 2009—have little protection against them. An initiative to change that in Ontario deserves a cautious B grade. The minority Wynne government has introduced Bill 83, which would make it more difficult to bring frivolous lawsuits against people speaking out on a matter of public interest. However, as of press time, the bill has yet to pass. All three parties have indicated support for Bill 83, but there’s no guarantee that support will stand, what with outside lobbying and the threat of an election. The fight to enact anti-SLAPP legislation is far from over.
For more about anti-SLAPP in Ontario, see Cara Zwibel’s article, “Anti-SLAPP Bill Stalled."
CSEC AND THE OFFICE OF THE COMMUNICATIONS SECURITY ESTABLISHMENT COMMISSIONER
Leaks from former NSA contractor Edward Snowden suggest that Communications Security Establishment Canada (CSEC)—Canada’s version of the NSA—has secretly been collecting the same kinds of private information as its U.S. counterpart. The leaks show CSEC has been spying on Canadians through Wi-Fi connections at an “unnamed” airport, collecting data on businesses and politicians in Brazil, and allowing security agencies from other countries access to surveillance of Canadian citizens. Unfortunately, while the NSA has come under deep scrutiny in the U.S., and American politicians—including President Barack Obama—are being forced to speak out on the situation, the Canadian government is staying almost completely silent. Worse still, the independent commissioner who is supposed to hold CSEC accountable has been unable to determine what its agents are up to because of “incomplete” records, meaning the institution is essentially operating behind closed doors and without proper oversight.
The Government of British Columbia
For allowing a culture in which government officials do not create any permanent records of their communications and, as a result, are failing to provide any information in a full 20 per cent of all access to information requests.
Ontario Superior Court
For efficiently processing the media’s application to access information related to Toronto mayor Rob Ford from the Toronto Police investigation Project Brazen 2.
MP Brent Rathgeber
For killing his own private member’s bill, C-461. The bill had been altered by the government in such a way that it no longer reflected Rathgeber’s interest in the disclosure of government salaries. Instead, the bill would have weakened protections for the CBC’s journalistic and programming activities. For more information about the life and death of Bill C-461, read "MP’s Sacrifice Saves CBC Integrity."
The Government of Newfoundland and Labrador
For launching an independent review of its access to information system and Bill 29. This legislation, passed in 2012, gutted access in the province by massively broadening exemptions to ATI requests and giving cabinet ministers the power to decline requests by declaring them frivolous or repetitive.
“It speaks to an appetite to take a hard line on people who try to suppress or cover up information,” says pollster Nik Nanos, chair of Nanos Research. He adds that, to Canadians, “that type of behaviour is unacceptable.”
Along the same vein, more than half of those polled either disagreed (36%) or somewhat disagreed (18%) with the current federal government’s assertions that it’s the most open in Canadian history.
“It’s difficult for governments to reconcile the desire to be open and accountable with the pressures of governing and managing political risks,” says Nanos. “Considering the Tories’ initial call for accountability when first elected in 2006, it must be disappointing for some to observe how accountability and transparency has unfolded in Canada.”
On the other hand, Canadians seemed less reactive about the government secretly gathering their information. A full 60 per cent said they wouldn’t change the content of their communications if they suspected those communications were being monitored by government. The response is notably different in the U.S., where a similar survey from Harris Interactive found 47 per cent of adults had changed their behaviour following revelations of NSA snooping, and about a quarter of those polled said they reduced their amount of online banking, shopping and email usage.
“People are increasingly conditioned to have less privacy, and [be subject to] more surveillance now,” says Nanos, adding that “the U.S. flare-ups on this issue have been more sensational. There hasn’t been, in Canada, a galvanizing Canadian event to wake people up.”
Canadians were asked for their response to the following questions:
Federal employees should be required by law to create a permanent, retrievable record of their deliberations and decisionmaking at work, even when these take place using non-written forms of communication.
There should be penalties for federal employees who destroy work-related emails and other records of government deliberations and decision-making.
Which of the following actions would you take if you suspected the government was monitoring your telephone calls, social media, emails or other communication?
As you may know, the current federal government has said it has a priority to be open and accountable. Would you agree, somewhat agree, somewhat disagree or disagree that Canadians have more access to government information, such as how and why decisions were made, now than they ever had before?
Nanos Research conducted a national random telephone survey of 1,000 Canadians between March 6 and 12, 2014. The sample included both land lines and cellphone lines across Canada. The margin of error for a random survey of 1,000 Canadians is ±3.1 percentage points, 19 times out of 20. Percentages may not add up to 100 due to rounding.
The TPP was established in 2005 as the Trans-Pacific Strategic Economic Partnership Agreement (TPSEP or P4); negotiations for an expanded version, the TPP, began in 2010. According to a leaked 2013 draft of its Intellectual Property (IP) Chapter, if ratified, the TPP will further liberalize trade by restructuring trade remedies, technical barriers, intellectual property, government procurement and competition policies.
In November 2011, the TPP signatories—Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, the U.S. and Vietnam (Canada, Mexico and Japan joined negotiations in 2012 and 2013)—announced the broader objectives of the unprecedented agreement, which would incorporate over 792 million people and a combined GDP of $27.5 trillion: “We are delighted to have achieved this milestone in our common vision to establish a comprehensive, next-generation regional agreement that liberalizes trade and investment and addresses new and traditional trade issues and 21st-century challenges. We are confident that this agreement will be a model for ambition for other free trade agreements in the future, forging close linkages among our economies, enhancing our competitiveness, benefitting our consumers and supporting the creation and retention of jobs, higher living standards, and the reduction of poverty in our countries.”
Yet as is the case with all multifaceted trade agreements, official statements can be ambiguous and enigmatic. Since the TPP has the potential to transform everything from trade and unemployment to investment and intellectual property, the only way to understand its implications for free expression is to dissect what little we know about it.
For starters, the Canadian government lobbied heavily for two years to secure Canada’s spot at the table, believing the TPP was an opportunity to boost our economic profile. Admission came with strings attached. Sight unseen, the government had to agree to all previously negotiated text, including unbracketed text still open for negotiation. As only one chapter has been closed to date, Canada will be forced to implement policies we had no say in shaping, and policies not yet drafted.
What’s more, TPP negotiations take place behind closed doors, meaning only those directly involved—appointed government representatives and industrial advisors—are privy to the policies being debated. Media, academics and citizen lobby groups will be unable to access TPP-related documents until four years after negotiations have concluded.
Analyses of the TPP’s leaked IP Chapter reveal two articles and an overarching U.S.-based coercive legal framework that, when implemented concurrently, could severely restrict how Canadians express themselves online.
Article 4.1 calls for the increased regulation and restriction of temporary copies—files that computers automatically copy into their random access memory (RAM) during routine processor operations such as web browsing. Since it is necessary to download a temporary version of everything we view on our devices, such copies are essential to Internet usage. A definitive international standard on temporary copies would not only create an intricate layer of copyrights, but also impact the cost of accessing licensed content.
Article 16.3 posits that all signatories must force their domestic Internet service providers (ISPs) to act as copyright monitors, meaning that the companies that provide Canadians with Internet access would be forced to act as digital watchdogs. Inspired by the Digital Millennium Copyright Act (DMCA) and Anti-Counterfeiting Trade Agreement (ACTA), this policy would require ISPs to block access to websites that allegedly facilitate copyright infringement and screen private communications for copyrighted materials.
As mentioned above, Canada could be forced to amend dozens of democratically instituted laws to bring them in line with TPP policies. Potential amendments include: bans on unlocking private mobile devices; 20-year increases to posthumous patents for artistic works; criminalizing petty copyright infringement for nonprofit, non-commercial and educational purposes; and harsher criminal penalties for Internet users who refuse to comply with content takedown orders.
The fact that these negotiations have disregarded appeals for public consultation and transparency show the TPP definitely has something to hide. Check out openmedia.org/censorship for ways to get involved in fighting back, and follow CJFE as we counter this secrecy by keeping you informed as the negotiation process continues.
A.T. Kingsmith (@akingsmith) is a member of CJFE’s Digital Issues Committee and a Ph.D candidate in political science at York University.
Rather than relenting under public scrutiny, it seems that restrictions and the pace of cutbacks have only increased. More scientific institutions are closing, and science and tech spending has decreased 3.3 per cent in the past year, continuing a downward trend started in 2011. More than 2,000 scientists have been dismissed, and known cuts to personnel and/or funding have been made to 165 research programs and facilities, affecting almost every federal scientific and monitoring institution. Canada’s global ranking has dropped from 16th to 23rd in expenditures on research and development related to GDP. The most dramatic recent event has been the sudden closures of, and loss of irreplaceable materials from, federal libraries, including those of the Fisheries Department and Health Canada.
Fortunately, we did not see further drastic changes in environmental or science-related legislation in 2013. This marks a quieter year, after the 2012 alterations to the Canadian Environmental Assessment Act and the Fisheries Act, which included removing requirements for many federal assessments and rules for protecting fish habitats from serious harm, respectively.
Then there’s the muzzling of federal scientists and other civil servants. Examples of this silencing continue to emerge, and there is little evidence that conditions have improved since the first few accounts of muzzling in 2006. A sobering 2013 PIPSC report found that 90 per cent of federal scientists did not feel they could speak freely about their work, 86 per cent felt they could not report actions that might harm the public without risk of censorship or reprimand, and 24 per cent had been asked to alter or exclude information in government documents for non-scientific reasons. Furthermore, 48 per cent reported being aware of cases where their department or agency supressed or withheld information, which they believe resulted in the public, media, industry or government officials being misled or misinformed.
Despite many scientists still being forced into silence, those who can speak on these issues are doing so more loudly than ever before. The past year saw major coverage through Chris Turner’s book The War on Science: Muzzled Scientists and Wilful Blindness in Stephen Harper’s Canada, and an episode of CBC’s The Fifth Estate, “Silence of the Labs.” Organizations such as the Canadian Association of University Teachers (through its Get Science Right campaign), Scientists for the Right to Know, and Evidence for Democracy (E4D) have recently emerged in Canada with the explicit agenda of ending the muzzling of scientists and cutbacks affecting scientific research. In September 2013, E4D facilitated 17 Stand Up for Science rallies nationwide. Thousands of citizens and scientists attended, calling for an end to cutbacks and muzzling of federal scientists. And at universities around the nation, seminars and panels are popping up, with worried academics discussing the issue.
While it’s unlikely that anything will reverse this trend in the short term, public pressure and media scrutiny is exposing the federal government’s restrictions as increasingly draconian and short-sighted. Since federal scientists and other civil servants still cannot speak out, it is left to the media to keep Canadians aware of the scientific and environmental issues facing the country.
Alana Westwood (facebook.com/alana.westwood) is the Atlantic organizer for Evidence for Democracy, a freelance writer and a PhD student studying conservation biology at Dalhousie University.
Evidence for Democracy launches its national Science Uncensored campaign, calling for free expression for scientists.
The federal government asserts that its support for science is greater than that of any other government in Canadian history.
Stand Up For Science rallies occur in 17 Canadian cities, calling on the government to unmuzzle scientists and appropriately fund research.
The Professional Institute of the Public Service of Canada (PIPSC) releases its survey on the muzzling of government scientists; 90 per cent reported that they did not feel they could speak freely about their work.
Several doctors criticize the federal government for not releasing critical health reports on illness-causing bacteria that affect thousands of Canadians each year, resulting in death in some cases.
The NDP calls for the creation of an independent parliamentary science advisor via a private member’s bill.
The House of Commons imposes a “loyalty agreement” for employees working for MPs, which could be used as a lifetime gag order.
The closure of the main Health Canada research library gains widespread attention. It is the latest of dozens of libraries to be shuttered since early 2012, including those of Citizenship and Immigration Canada, and Employment and Social Development Canada.
The Act created two new agencies—the Office of the Public Sector Integrity Commissioner (PSIC) and the Public Servants Disclosure Protection Tribunal—which have cost taxpayers more than $40 million to date. Yet little wrongdoing has been found, and even when exposed, perpetrators have gone largely unpunished. Worst of all, Canadian public servants who report wrongdoing face greater hazards today than before the law was passed. There seems to be no relief for them in sight, with the current government refusing to initiate reforms.
The purpose of any whistleblowing system is twofold: to deter wrongdoing that threatens the public interest, and to protect whistleblowers who put themselves at risk by reporting suspected wrongdoing. Canada is failing on both fronts.
One former senior executive resigned from the Canadian International Development Agency (CIDA) before Dion’s investigation into the executive’s use of government resources for a private sector business was complete. The former CIDA executive found a job touring the Caribbean—on a grant from CIDA. The NGO that employed him had no inkling of his alleged past misdeeds and had no means of finding out, even after Dion’s report was published, because the former executive’s identity was protected.
Indeed, the Public Servants Disclosure Protection Tribunal is the only body in Canada with any power to protect whistleblowers, yet most cases never get there because the PSIC acts as a gatekeeper, screening all complaints, rejecting most and sending only a handful to the tribunal—just six cases among the more than 140 complaints of reprisal received in seven years.
If a case does eventually reach the tribunal, the whistleblower—whose career, livelihood and mental health are likely in ruins already—now faces a legal process in which the other side has vastly superior resources (paid for by taxpayers). The case may drag on for years.
The law is badly written, placing the onus on whistleblowers to prove actions taken against them were intended as reprisals. This is usually impossible. Under a similar law in the United States (long since abandoned), only four out of the first 2,000 whistleblowers succeeded.
Today, whistleblower laws in countries such as the United States and United Kingdom place the onus on employers to prove that their actions were not reprisals, thus giving whistleblowers a much better chance of success. Twenty-seven per cent prevailed in hearings before the U.K. tribunal between 2000 and 2012. It is far from a sure thing, but far better than the odds in Canada.
The first whistleblower to participate in the tribunal process made a disclosure of wrongdoing in 2009, and he is currently locked in a legal battle with the PSIC over which of three alleged acts of reprisal will be referred to the tribunal. So far, the PSIC has referred only one.
Even that one referral is at risk of being quashed. In a 2012 judicial review of the case, the PSIC’s investigation was harshly criticized. But after revisiting its investigation, the commission backtracked, saying it could find no reprisals and may withdraw its referral of the case to the tribunal altogether. The whistleblower’s lawyer has applied for a second judicial review in order to challenge this conclusion.
The second and third Canadian whistleblowers dropped their cases by accepting out-of-court settlements. Three others—all related to the same situation—were referred recently.
The Canadian tribunal’s effectiveness is impossible to judge because of its lack of a track record: few hearings have taken place, and no case has yet completed the process. But another tribunal, the Public Service Labour Relations Board (PSLRB), illustrates how whistleblowers are likely to fare in this newer system. Dr. Shiv Chopra and two of his Health Canada colleagues testified to the Senate regarding alleged pressure on scientists to release veterinary drugs into the food supply without adequate testing for human safety. All three were fired in 2004 for “insubordination” and their case was referred to the PSLRB when it came into being in 2005. The three spent 150 days in hearings spanning nearly five years while Health Canada spent untold sums defending its actions against them.
If that weren’t enough, there’s another troubling twist: in five out of the six cases, the PSIC has declined to ask the tribunal for disciplinary action against perpetrators—even when it has identified them and described their acts of reprisal. This renders the tribunal powerless to order sanctions and creates the impression that Dion is shielding aggressors. Even if such sanctions were ever ordered, the aggressors can escape simply by leaving the public service—either by retiring or taking jobs elsewhere.
The tribunal system has produced no useful results: no case has yet navigated the complete process (though some have been settled), no whistleblower has been provided with a remedy and no aggressor has been disciplined. Given the way the law is written, it’s unlikely that any of these outcomes will ever take place.
In effect, this means the protection for whistleblowers promised in 2006 is an illusion.
Under Dion there has been more activity but few useful results. Dion also lowered his sights in 2013, changing his mandate so that “detecting wrongdoing” and “contributing to greater integrity in the public service” disappeared from the “desired strategic outcome” for his agency. These changes seem to confirm that he is not aiming to produce results.
The Canadian government, which should be rushing to fix this badly broken system, is instead blocking any reform by failing to launch the legally required five-year review of the law, now two years overdue.
Worse, the government is introducing departmental codes of conduct that make it a firing offence for public servants to say anything in public that displeases the people in charge. These codes effectively strip public servants of their Charter free speech rights and criminalize whistleblowing.
Meanwhile, other countries such as the United States, the United Kingdom and Australia are taking steps to further strengthen the working whistleblowing laws they’ve had in place for many years, even decades. While even the strongest laws will never make whistleblowing a safe or easy thing to do, these countries at least appear to be making a real effort.
It is sad that after 20 years of promises by politicians, Canada still does not offer any credible protection to honest public servants who speak out in order to protect the public interest.
David Hutton is the executive director of FAIR, the preeminent organization defending whistleblower rights in Canada.
PHOTO: DARRYL DYCK/THE CANADIAN PRESS
PHOTO: DAVID KAWAI/POSTMEDIA
The House of Commons was about to take a final vote on a private member’s bill—sending it to the Senate and, likely, into law. Most parliamentarians would give their front teeth to see their bill finally get this far. But the sponsor of Bill C-461, Brent Rathgeber (Edmonton-St. Albert), who had spent more than two years maneuvering it through the shoals of Parliament, rose from the backbenches on a point of order. The CBC and Public Service Disclosure and Transparency Act no longer resembled his original bill, Rathgeber said. As its sponsor, he could not ask for the concurrence of the House.
The Speaker of the House, Andrew Scheer, admitted he was faced with “an unprecedented situation.” But, given his understanding of parliamentary process, Scheer ruled that C-461 should be “discharged” and “dropped from the order paper.” Bill C-461 was dead. And the opposition benches gave Brent Rathgeber a standing ovation.
CJFE applauded as well. It was, we said, a good day for democracy: an individual politician had taken a pass on personal prestige and, in a place known for narrow partisanship, had acted on principle.
The journey of C-461 from birth to death is important to understand because of what it reveals about the current government’s attitude toward the CBC/Radio-Canada.
When he asked the Prime Minister’s Office for support—fairly essential if a private member’s bill is to advance—Rathgeber says the government agreed to prop up his bill if he incorporated changes to the section of the Access to Information Act that protects the CBC’s journalistic, programming and creative activities (clause 68.1).
The result was a schizophrenic bill—seeking salary disclosure on one hand and so-called “accountability” at the CBC on the other—and getting both by the circuitous route of small changes to the Access to Information Act.
The implications for journalism are what concerned CJFE and others (the Canadian Media Guild, the Fédération professionnelle des journalistes du Québec, or FPJQ, and eight other organizations joined CJFE in our opposition to C-461). Critics of C-461 were not against changing the access act—in fact, comprehensive, not piecemeal, reform is urgently needed—nor against more accountability in government and at the CBC. “The need for transparency in our public institutions should not be used as an excuse to weaken the public broadcaster,” explained Brian Myles, the vice-president of the FPJQ.
CJFE argued that C-461 could expose the identity of the CBC’s confidential sources, deter whistleblowers from approaching the CBC and supply media competitors, individuals and corporations with information about journalistic and programming activities that no other media outlet has to disclose. Such information would only be protected if its disclosure would affect the CBC’s “independence.” That was insufficient protection, according to lawyer Peter Jacobsen, chair of CJFE’s Canadian Issues Committee. “The public broadcaster would have seen its journalistic integrity compromised,” he says.
CBC management was also worried about C-461, and later expressed its appreciation of CJFE’s work. “I believe that CJFE’s arguments at Committee were vital in getting the bill’s sponsor, and others, to understand that the problems with the bill went beyond just CBC’s concerns,” says Shaun Poulter, senior director of government relations for CBC/Radio-Canada.
These arguments did not go unheard. The information commissioner admitted the weakness of the “independence” definition in C-461. And the bill’s sponsor, Rathgeber, then a backbench Conservative MP, said he would accept improvements: “We heard cogent evidence that the independence test was too narrow,” he admitted, suggesting that the bill might include wording “to protect not only the independence but the freedom of expression of the corporation.” Opposition members of the Standing Committee on Access to Information, Privacy and Ethics prepared important amendments to the bill.
And then the government revealed that it was no longer interested in the disclosure of civil service salaries. Conservative members of the committee voted as one to raise the threshold for disclosure to those earning more than $444,761 a year. That level would apply to only a very small number of Crown corporation executives and senior bureaucrats enjoying special bonuses. That left C-461 only seriously addressing issues concerning the CBC, and doing so with language that failed to protect the public broadcaster’s journalistic, creative and programming activities.
It was at this point that Rathgeber resigned from the Conservative party, bitterly complaining the government had “gutted” his bill and had no respect for backbench MPs. When C-461 returned to the House of Commons in November 2013, Rathgeber, by then sitting as an independent, introduced amendments that would reinstate lower salary threshold and remove all aspects of the bill pertaining to the CBC.
But, in February 2014, the Conservatives defeated Rathgeber’s amendments, although a handful of MPs did break ranks with their party. Rathgeber felt that he had no choice but to withdraw sponsorship of his own bill. In its new form, rewritten by the government over his objections, it would do more harm than good, he said.
It has been evident throughout the process that the government’s real interest in C-461 was about reducing protections for the CBC’s journalistic and programming activities. And that deeply worries Carmel Smyth, the national president of the Canadian Media Guild, which is the largest union at the CBC. “I find it troubling the government would have passed this flawed legislation knowing it would have hamstrung the CBC.”
Bill C-461 is dead—thanks to the principled action of Brent Rathgeber. He may have created a way for MPs to keep control over their own legislation. However, the government, on its own or through an individual MP, can still reintroduce the same proposals anytime.
You may think these cases are exceptions. They are not. In December 2013, in Val-d’Or, the outgoing mayor, speaking of a young journalist who had penned an article he disliked and who was in the room, said: “I wouldn’t mind giving those big-mouthed journalists a slap in the face.” Several other mayors of the region who were present broke out laughing. In Saguenay, the mayor called journalists “no good” and accused them of playing the role of the opposition. A few years ago, the same mayor had threatened a journalist to the point that he feared losing his job.
I could go on and on.
Intimidating journalists shows disregard for citizens—meaning all of us. Obstructing journalistic work amounts to denying citizens their right to know what is going on in their municipalities. Can we afford to be kept in the dark about what our elected representatives are doing with our money?
Let us not forget what the former mayor of Laval, who stands accused of gangsterism, said to a young candidate in the last election: “Let me tell you… The truth is that there is already another system,” he said, speaking of a corrupt system. Can we afford to keep filling the pockets of those who engage in corruption? If our answer is no, we must—by all means—help journalists do their jobs. Because without journalists, the Charbonneau Commission would not exist, and the Gomery Inquiry before it would never have taken place.
The mission of the Quebec Professional Federation of Journalists (Fédération professionnelle des journalistes du Québec, or FPJQ), with the strength of its 2,000 journalist members, is defending freedom of the press. In Quebec, journalists are not tortured as they are in certain countries, but they are too often intimidated, dissuaded or threatened. When the work of journalists is hindered, citizens are denied their democratic right to be informed.
In 2011 and 2012, Quebec received the disastrous grade of “F,” the worst of all Canadian provinces, in a Newspapers Canada investigation into access to information. We are hardly optimistic that the grade for 2013 will be any better.
Alas, Quebec’s access to information law, which came into place over 30 years ago, is ineffective and even detrimental to the work of journalists in its current state.
Here’s a common example: a researcher for the Radio-Canada TV program I host, La Facture, recently asked a hospital spokesperson how many private and semi-private rooms the hospital held. “Go file an access to information request,” the spokesperson replied. The same researcher recently asked a borough spokesperson for the engineering plans of a condo development: same response. This is absurd.
During a conference held in Quebec City, which brought together those responsible for access to information policies in American states and big Canadian cities, the minister responsible for Quebec’s access to information law, Bernard Drainville, admitted that the law “blocks access to more information than it permits.”
I was at this conference. When I asked the minister, in front of 500 conference goers, if he was ready for a thorough review of the law, Drainville replied that, as his was a minority government, he could only make minor modifications to the law in any timely manner. Stunning from a minority government that was ready to take on Quebec’s war over religious freedoms.
Access to information is, thus, essentially a question of political will. And we, at the FPJQ, will fight to create, and sustain, this will. Without access to information, journalists are like a tortoise in a puddle of molasses: everything happens extremely slowly. Without access to information policies worthy of their name, there is no democracy worthy of its name.
Pierre Craig is president of the Quebec Professional Federation of Journalists. He is the host of the CBC/Radio-Canada TV program La Facture.
PETER CHMELA (SLOVAKIA) / INTERNATIONAL EDITORIAL CARTOON COMPETITION OF THE CANADIAN COMMITTEE FOR WORLD PRESS FREEDOM (CCWPF)
It has been almost four years since the Anti-SLAPP Advisory Panel, appointed by Ontario’s then-Attorney General John Gerretsen, issued its report recommending the province adopt anti-SLAPP legislation. A bill incorporating some of those recommendations was tabled in June 2013 and, as of the date of publication, still hasn’t moved to a committee. Bill 83, the Protection of Public Participation Act, would amend several pieces of legislation so that those on the receiving end of a SLAPP could bring the issue before the court in a timely way.
The current problem for those who are named in a SLAPP is that it can take many years (and tens of thousands of dollars) to get the case before a judge and have it dealt with on its merits. Even if the court ultimately finds that the lawsuit had no validity or was brought for an improper purpose, and dismisses it, the damage will have been done. The suit chills free expression by sending a message that dissenting voices will be dragged through a legal nightmare. Many activists who are sued will choose to simply give up their activism since the costs of defending themselves can be so high. These lawsuits also have the potential to put a chill on investigative reporting and media coverage of controversial issues. In many ways, SLAPPs are the new frontier in terms of threats to freedom of expression. Brought by powerful private actors, SLAPPs use our court system to curb debate and discussion, and to skew the narrative on issues of broad importance.
Although there are scenarios that might be described as classic SLAPPs—for example, a developer suing a residents’ group opposed to its development—the target of a SLAPP can take many different forms. Individual activists, environmental groups, residents’ associations and media actors are all possible targets. The environmental NGO Greenpeace is currently facing a lawsuit launched by Montreal-based forestry company Resolute Forest Products Inc., which alleges defamation, malicious falsehood and intentional interference with economic relations, and is seeking $7 million in damages. While Greenpeace characterizes the suit as a SLAPP, Resolute says it is taking legitimate legal steps to protect its business and reputation against false and misleading statements. In the absence of anti-SLAPP legislation in Ontario, where the suit was filed, this kind of case could stretch out over several years and incur huge legal fees before finally coming before the court. Regardless of the merits of the suit, the delay in having a court deal with it has a number of negative consequences for all parties involved. Those who are concerned about Resolute’s practices will keep quiet, to avoid facing a similar legal action. At the same time, Resolute will continue to face claims that it is engaged in abusive litigation until the case is heard. Bill 83 seeks to remedy this problem.
If passed, Bill 83 would give defendants in a SLAPP a chance to bring a case before the court early on. The court would consider whether the lawsuit arises out of expression on a matter of public interest and, if it does, whether it nevertheless has substantial merit and whether the defendant has a valid defence. The court would also be asked to consider the relative harm that the party suing might suffer because of the expression and whether that harm outweighs the public interest in protecting the expression. This creates a procedure that seeks to balance the scales and level the playing field in what is often a contest between parties with vastly unequal resources. Bill 83 does not make any significant substantive legal changes, so lawsuits with genuine merit should not be deterred or dismissed.
Despite all three parties making statements in the legislature that are supportive of the bill, things seem to be at a standstill. If Bill 83 doesn’t get to committee and pass before an election is called (which could happen anytime with Ontario’s minority government), it will likely die. This would be an unfortunate missed opportunity to protect freedom of expression and encourage robust and meaningful participation by the public.
Cara Zwibel is the director of the Fundamental Freedoms Program of the Canadian Civil Liberties Association (ccla.org).
Expressing sympathy or support for an Alberta public servant labour strike could cost a person $500 under Alberta’s Bill 45, the Public Sector Services Continuation Act. The provincial legislature passed the controversial law in an effort to discourage illegal striking by the members of its public service. The bill was adopted together with Bill 46, the Public Service Salary Restraint Act (the implementation of Bill 46 has been postponed because the provincial government employees’ union has launched a court challenge). The two bills are part of the Alberta government’s response to the illegal strike of some of Edmonton’s correctional facilities workers, who walked off the job in April 2013 to protest unsafe working conditions.
Alberta’s Bill 45 poses a serious threat to freedom of expression in Canada. It is broad in scope and could cover communication by everyone from journalists to people on the street to public service employees discussing strikes amongst themselves. The specific provisions that are cause for concern are in Section 4 of the bill. They prohibit employees and union representatives from causing or agreeing to a strike, and from any other behaviour that establishes a strike threat or a strike. The same section then stipulates that “no person shall counsel a person” to contravene these anti-striking provisions.
The consequences for flouting the rules can be steep. Employees face a fine of up to a day’s wages for each day the offence occurs or continues, while union representatives are liable to pay $10,000 per day. The fines are staggering for trade unions and employers: a flat $250,000 fine plus a daily rate based on the number of employees involved. Even individuals who are not in these categories face a fine of $500 for each day the offence occurs or continues. Bill 45 only applies to those public service employees who are already forbidden to strike under Alberta’s Labour Relations Code or its Public Service Employee Relations Act. That includes firefighters, employees of approved hospitals and employees of the Crown and the agencies, boards and commissions created by the provincial legislature.
The bill has been criticized by a number of watchdog organizations, including CJFE, for potentially silencing the critics of the Alberta government’s labour relations policies. According to Peter Jacobsen, chair of CJFE’s Canadian Issues Committee, the bill’s broadly worded provisions could capture, for example, journalists who say public servants in the province ought to do something to get a fair deal in labour contracts.
This is not the first time the Alberta government has adopted legislation encroaching on freedom of expression. In 1937, Alberta’s Social Credit Party government passed the Accurate News and Information Act. It required newspapers to reveal sources to the government and publish corrections prepared by the party. The following year, the Supreme Court of Canada struck down the law on jurisdictional grounds—a common basis for declaring laws unconstitutional in the days before the adoption of the Canadian Charter of Rights and Freedoms. Today, Alberta’s government would have a difficult time defending the constitutionality of the Public Sector Services Continuation Act, as it appears to run counter to the charter’s protection of the fundamental freedoms of thought, opinion and expression.
Radostina Pavlova is completing her law degree at the University of Toronto.
The stakes are high. Information—authentic information, and not just spin—is indispensable for a functioning democracy. Public information, and the means of creating and preserving it, must be seen as vital national assets. If they are lost, we will also be losing part of our history, and surely some of our capacity to shape the future.
This year’s assessment of the state of our right to information begins with our usual review of the performance of the ATI system, and it continues with a look at the emerging threats and the new remedies that must be considered.
A public opinion poll conducted in early 2014 by the Nanos Research Group on behalf of CJFE asked Canadians if they agree or disagree with the claim that the government has given citizens more access to its information. A majority (53.2 per cent) disagreed. It would seem many Canadians have serious doubts about Clement’s assertions.
Those assertions are based on selected statistics. Clement boasts, for example, that the number of access requests received by the government last year went up by 27 per cent. That’s completely true. But there’s a difference between the public’s growing demand for government information and proof of transparency. In fact, unless the performance of the ATI system is improved, more requests received only means more ATI responses delayed, extended, censored and/or denied.
Clement’s own department, the Treasury Board, tracks the performance of the ATI system in its annual Infosource publication. One measure it uses is how many requesters received all of the information they asked for—or, conversely, how many responses were refused or contained redactions or blackouts. In 2012-13, government departments and agencies refused or censored almost four out of five access responses—justified by a long list of exemptions or exclusions in the Access to Information Act (ATIA). Conversely, only 21.6 per cent of all Access users received all of the information they requested (see table). In comparison, 13 years ago, twice as many (40 per cent) of users received everything they asked for (some analysts point to 2000 as the time when access performance began to deteriorate significantly).
Clement also asserts that the government has significantly improved its access response times, justifying his claim about government transparency. In 2012-13, Infosource reported that government institutions completed almost 65 per cent of access files within the statutory limit of 30 days—a major bump from the 55 per cent of responses returned within the time limit in the previous year. But a closer examination of the data reveals a distortion that has crept into recent statistics due to the very high number of requests made to one department. Citizenship and Immigration Canada (CIC) received 45.3 per cent of all ATI requests in the federal access system in 2012-13. And because ATI inquiries made to CIC, compared with other departments, are generally less complicated—the great majority ask for personal immigration files—CIC is able to complete 75 per cent of these files in 30 days or less, while it accounted for only 6.8 per cent of all complaints to the information commissioner.
Citizenship and Immigration, in other words, makes a large footprint in the ATI data although it carries a light load. If the government’s performance is looked at with CIC files removed, the performance calculations change quite dramatically in one category: judged by timeliness of response, non-CIC requests exceeded the time limit 44.3 per cent of the time—a figure comparable to previous years (see table).
Overall, the access system remains in crisis—there has not been any significant improvement.
There are a number of possible reasons for declining performance: budget cuts have led to understaffing in some institutions; in others there seems to be a simple unwillingness to release information. Parks Canada officials took no action for 11 months on a request related to an announcement that Sable Island, off the coast of Nova Scotia, would become a national park. Transport Canada took roughly a year to release records because of staff shortages. Health Canada cited lack of resources for its poor performance.
But an especially egregious case was found at the Royal Canadian Mounted Police. The number of complaints about how the RCMP managed access requests tripled between 2011 and 2013. In that period the institution understaffed its ATI office so badly, it could not even acknowledge the receipt of requests within the 30 days it should take to answer them. That made it impossible for the information commissioner to even begin an investigation into a complaint, because there was no file number to identify the request. (This is why we gave the RCMP an “Incomplete” grade on our Report Card.)
Government bodies can get away with such poor access performance because the access Act does not give the commissioner effective enforcement powers. And now, a Federal Court decision may have given underperforming institutions a new excuse for thumbing their noses at the Act.
In May 2013, the information commissioner took the Department of National Defence to court after the department gave itself 1,110 days (just over three years) to respond to an access request. That is allowed by the Act, but the commissioner said it was unreasonable. A Federal Court judge ruled that while the commissioner was raising important issues that were in the public interest, the court could not censure the Defence Department because of the way the Act is worded—one more reason why the it must be reformed.
The commissioner is appealing the decision, but it could take more than a year. In such a lengthy time span, other departments and agencies could use the judgment as justification for long extensions—up to three years—because the courts will not likely challenge them.
This appears to be one of the reasons the commissioner prepared a special report to Parliament, released in November 2013, concerning the risk to the access system from instant messaging technology.
The federal government has issued approximately 98,000 BlackBerrys, the primary wireless device used throughout its departments and institutions. Unlike emails, which are usually stored on central servers, instant messages (texts) sent on BlackBerrys can be transmitted in PIN-to-PIN mode, or from device to device, with no central record storage. Messages stored on the devices themselves are usually erased after 30 days. So, with so many BlackBerry devices in use by government employees, there could easily be millions of messages—concerning deliberations and decisions about policies and programming of government—that are erased every month.
It is possible to store these PIN-to-PIN messages. But in the commissioner’s investigation, only two out of 11 institutions studied actually save BlackBerry messages. As a result, Legault concluded: “There is a real risk that information that should be accessible by requesters is being irremediably deleted or lost.” And that infringes on the right of citizens “to know what their government is doing and to hold it accountable for its decisions.” Noting that the government currently uses an “honour system,” with individual officials deciding what is preserved and what is purged, the commissioner suggested that federal institutions disable instant messaging on government-issued wireless devices.
Treasury Board president Tony Clement called that recommendation “nonsensical.” Public servants use the technology, Clement insisted, for things like “a quick message that their child has come home safely from school,” suggesting there is no need to capture such messages. But given that Legault’s study had shown how BlackBerry messages are widely used for government business, not just private missives, she told CJFE that she found Clement’s response “extremely disappointing.”
The missing-records problem does not end with smartphones. The Correctional Service of Canada destroyed records that were only two years old and that were the subject of the information commissioner’s investigation into an ATI complaint. In another case, Transport Canada said that “no records were found” in response to an access user’s request for documents concerning the transport minister’s meeting with representatives of Canada’s largest railway, Canadian National, less than a week after one of the worst rail accidents in Canadian history. It is hard to believe, but the department appears to be saying it created no records about such an important meeting.
Legault also found evidence of an emerging problem that could cause information to go missing. There are no clear procedures, Legault pointed out, to secure information when departments or agencies cease to exist or are amalgamated into other organizations (examples include the demise of the International Centre for Human Rights and Democratic Development, the abolishment of the Hazardous Materials Information Review Commission, and the amalgamation of CIDA with Foreign Affairs and International Trade).
And then the recent “Senate scandal”—involving a secret $90,000 deal between the prime minister’s then-chief of staff Nigel Wright and Senator Mike Duffy—was the source of several revelations concerning missing records and the right to information. Firstly, it drew attention to the fact that MPs and senators, along with the cabinet, are excluded from the reach of the access law. Secondly, it became clear that Wright on occasion used a Gmail account instead of a government one, and the information in those Gmail messages could not be obtained through access to information. And thirdly, as the scandal unfolded, the Privy Council Office reported that emails from former PMO lawyer Benjamin Perrin—who allegedly knew about the deal with Duffy—had been deleted, and that this was standard practice for departing employees. That is a clear violation of government regulations. (Later the Privy Council Office reported that Perrin’s email account had not been erased, but merely frozen due to unrelated litigation.)
Meanwhile, the CBC had filed more than two dozen requests for information about the scandal to the Privy Council Office and the Justice Department. Both the Privy Council Office and Justice Department responded that their search yielded “zero” pages because the information “does not exist.” CBC reporter Greg Weston found it hard to believe that there was no information trail concerning the government’s worst political crisis since taking power.
Ian Wilson agrees. Wilson is the former chief librarian and archivist of Canada, with more than three decades of experience in the creation, storage and retrieval of government information. He insists that “one of the defining functions of a public service is the creation and maintenance of records.” This “duty to document,” Wilson asserts, is undermined by the growth, throughout the public service, of an oral culture. “I have seen it,” Wilson says. “Interactions between senior officials and the political level is now, from what I can determine, largely an oral culture.”
It is difficult, however, to show proof of an oral culture or evidence of transgressions against the duty to document, because the intent is to leave no trail or evidence behind. But Canadians clearly want to reverse the growth of an oral culture and to encourage the duty to document. In the Nanos Research Group–CJFE poll, a strong majority of Canadians said they want federal employees to be required to create permanent records of deliberation and decision-making, and they also want to see those bureaucrats disciplined if they destroy those records or emails. (See “Do Canadians care about free expression?”)
Ian Wilson says that the stakes will be very high should public servants continue to rely on an oral culture without a retrievable record: “Without record keeping and accountability, you have a very ill-informed democratic process—what are people voting on if they don’t know the authentic record, not just the spin? This is a crisis for democratic society.”
Elsewhere, CJFE has outlined detailed recommendations for ATIA reform (see “A Hollow Right” at cjfe.org/a-hollow-right), but in concluding our analysis of the right to information in this year’s Review, we believe two key measures have pressing importance:
• Duty to document: The evidence that more and more records are reported missing suggests that it is urgent that Parliament pass new legislation to firmly establish the duty to document, stressing the obligation of public servants to create records and setting and enforcing penalties for failing to do so or for destroying information. New amendments to the Access to Information Act should include strong sanctions for non-compliance (current penalties for destroying or altering documents have had no deterrent effect). The duty to document could also be added to the Values and Ethics Code for the Public Service.
• Expanding the scope of the Act: In the wake of the Senate scandal, it is all the more apparent that the House of Commons, the Senate and the cabinet should be made subject to the Access to Information Act so that the cleansing effect of sunlight might reduce corruption and deceit in those corridors.
Bob Carty is a radio documentary producer and has worked with CJFE since 1992.
*More evidence of the weakness of the Access Act and the information commissioner’s powers appeared in a mid-April 2014 report from Legault’s office. She has found evidence of “systemic interference” in the access process by three Conservative staff members. The commissioner recommended that such a serious incident be turned over to the police, but the Public Works Department, where the incident happened, declined.
• Access users appear to appreciate the government’s initiative to allow access requests to be made, and responses returned, online. Launched in April 2013, the online tool processed almost 21,000 requests in the first 10 months.
• On another digital front, the federal government was severely criticized for its 2008 decision to kill CAIRS (the Coordination of Access to Information Requests System), a database of summaries of all ATI responses government-wide. The database let users obtain copies of responses already released to other users without having to make a new request. The government has re-established a central access portal with the Completed Access to Information Requests (data.gc.ca/eng/search/ati). Users appreciate this initiative, although some say its search parameters are limited and response times are irregular—sometimes fast, sometimes slow. Canadian Press reporter Dean Beeby, a veteran access user, says it’s important to not forget the heart of the problem, namely “the rampant delays in responses to requests and the excessive use of exemptions once requests are processed. The new tools, in some ways, merely streamline the process of delivering blank pages to requesters.”
After a brief transition, all the Irving papers—three English dailies, six English weeklies and six French weeklies—would be accessible online only to subscribers. No metered quota of free stories each month, like The New York Times. No complimentary search-engine hits. No workarounds via Facebook or Twitter. “They’ve disappeared from the Internet, which seems like a strange business model,” says Philip Lee, a former Irving editor and now director of the journalism program at St. Thomas University in Fredericton. “If you’re not on Google, you’re not really in the game.”
If it were true that the family owned the newspapers to manipulate public opinion—as critics have long alleged—the paywall was a particularly odd move. The one-time bête noire of media ownership in Canada was marching into the online era in its own way.
Long before Canadian media watchers fretted about Bell and Black, New Brunswickers were well acquainted with the notion of concentration of ownership. In 1970, a committee of senators chaired by Keith Davey called K.C. Irving’s control of all of the province’s English daily papers—given his vast industrial holdings in forestry, shipbuilding and oil refining—“about as flagrant an example of abusing the public interest as you’re likely to find in Canada.” It was alleged that K.C. owned the papers, sometimes at a loss, to scare off those who might launch competing papers and then scrutinize his other enterprises. But a prosecution under the Combines Investigation Act—designed to protect the public from monopolies—failed when the Supreme Court of Canada ruled in 1976 that the mere existence of a monopoly was insufficient to convict: the Crown had failed to prove actual detriment.
Despite their victory, the Irvings were shaken by Davey, by the prosecution and then by the Kent Commission, another investigation of media ownership in 1980. “We’re terrified of government interference,” K.C.’s son Arthur told the commission. By then, K.C. had divided the newspapers among his three sons, creating the appearance of autonomy. And “smoking gun” evidence of family interference was elusive: by all accounts, the Irvings left their publishers alone.
The publishers they hired, however, were hardly muckrakers—particularly when it came to the Irvings. “What we need is more industry,” Tom Crowther, the publisher of Fredericton’s Daily Gleaner, said in a 1982 National Film Board documentary. “So if you ask, ‘Do we go out and attack industries?’ frankly, no.” This attitude, though, was easily explained by the same factors that afflict many small-market newspapers: chronic staff turnover, a lack of capacity for enterprise reporting and a tendency to engage in hometown cheerleading.
Eventually the Irvings overcame their fear that perception might prompt regulation. In 1998 they grouped the dailies back under a single company, Brunswick News; it would soon gobble up most of the province’s weekly newspapers. Company officials insisted the goal was not to control the news but to acquire a province-wide vehicle for advertising flyers. “The newspapers are nice,” vice-president Victor Mlodecki told a Senate committee in 2005, “but it is the distribution systems that are important to me.”
The newfound Irving comfort with their monopoly became more apparent in 2005, when Jamie Irving, the great-grandson of K.C. Irving, was named publisher of the Saint John-based flagship Telegraph-Journal. Early in his tenure, the Telegraph published tough, critical reporting on a 25-year tax concession given by the City of Saint John to Irving Oil, run by Jamie’s cousins. But when the stories moved closer to home—with the focus on Jamie’s father, Jim, lobbying the province to cut power rates for his pulp mills—the Telegraph was baldly supportive. The paper saw its role as a champion of business growth, which happened to align with the corporate interests of its owner. Jim Irving didn’t like surprises, nor ruffled feathers: he had told one editor that he wanted the Telegraph “spicy, but not hot,” and he warned another, “I don’t want any mavericks here. I don’t want a cowboy.”
On the business side, however, Jim and Jamie made a bold move, jettisoning the free Brunswick News website—updated once a day—in favour of a dynamic site residing behind a hard paywall. In one sense, it was hardly a surprise: the Irvings didn’t become billionaires by giving away their products. True, they were once alleged to tolerate a money-losing Telegraph to deter competition, but now they insisted on profitability—and their monopoly meant online readers had nowhere else to go.
Except the monopoly wasn’t what it had been. Frugal news junkies could turn to the CBC’s New Brunswick website. Bloggers, activists and citizen journalists, some critical of the Irvings, were posting their own coverage of current events. “Technology is going to do what Senate committees couldn’t do,” says David Shipley, a former Telegraph reporter turned digital-content expert at the University of New Brunswick. “It’s going to end that information dominance.”
Not everyone agrees. Sociologist Erin Steuter, one of the Irvings’ fiercest critics, says independent media in New Brunswick are still at the “awkward teenager” stage, not yet skilled enough to provide a credible alternative at a time when Irving interests loom as large as ever over the provincial economy. (Irving Oil’s refinery is the intended terminus for the proposed Energy East pipeline from Alberta.) “I would like to see professional journalism—standard techniques and abilities—in the indie media,” Steuter says. “We need that.”
Still, there is clearly an evolution under way in a province once considered a textbook case of concentration of ownership. “You don’t need to read the Telegraph-Journal,” Jim Irving says. “There’s so many other sources. … It’s a low barrier to entry now. If somebody wants to start a virtual newspaper today, I guess you could do it.”
When a newspaper proprietor himself admits people can do without his product, you know the landscape is shifting. What this acknowledgment—from the heir of the great monopolist himself—means for democratic debate in New Brunswick remains to be seen.
Jacques Poitras (@PoitrasBook) is a CBC journalist and the author of Irving vs. Irving: Canada’s Feuding Billionaires and the Stories They Won’t Tell (Penguin Canada, fall 2014), on which this article is based.
We now know that our own electronic surveillance unit, Communications Security Establishment Canada (CSEC), has been:
• collecting, in bulk, detailed information about our phone calls that identifies where we are and whom we speak to
• spying on us indiscriminately through Wi-Fi at an unnamed Canadian airport and throughout an unnamed city
• allowing the NSA to spy on Canadians, on our own soil, during the 2010 G8 and G20 summits
• spying on our trade partners in Brazil
• along with CSIS and the Justice Department, deliberately misleading the courts in order to obtain surveillance warrants.
The public reaction to such revelations, we are told by The Globe and Mail’s Elizabeth Renzetti, has been rolling over and going to sleep. Security news like thisis greeted with yawns in Canada, she writes, while in the rest of the world it merits front-page headlines. I don’t argue her point. But let’s remember who writes our headlines.
The Canadian public cannot be blamed for how its press underreports and downplays the news that they live in a surveillance state. There is not a single journalist working for a Canadian news outlet who is assigned full-time to domestic security issues. Meanwhile, our broadcast media, jumping on the surveillance scandal from time to time and without a deep understanding of its context and complexities, has provided an open forum for ex-spooks calling themselves security experts, who bully terrorism-fearing Canadians with “nothing to hide” into acceptance. Intelligence agency talking points that say spying is no big deal are echoed in editorials from some of our top pundits. These are particularly egregious examples, but more typically, Canadian reporting on CSIS and CSEC is bloodless and technical, drowning the reader in an alphabet soup of confusing acronyms and dull jargon.
This serves the agenda of our watchers. CSEC has evaded accountability through semantic games, misleading sophistry and outright lies. Its default response to any question is to cite the law that forbids it from targeting Canadians, knowing that it has welcomed its American counterparts to do so in its place, and knowing that it often spies on Canadians “incidentally” when its supposed targets are foreigners. It also interprets “collecting metadata” as a free pass for indiscriminate bulk surveillance: if it’s spying on large groups of Canadians, then clearly no one Canadian has been “targeted,” right? We can’t know for sure, because CSEC won’t say just how it defines “targeting.” CSEC claims that it’s authorized to collect metadata because the collection of metadata is not explicitly prohibited in the National Defense Act, which was written before the term “metadata” existed.
Defending CSEC, Stephen Rigby, Prime Minister Stephen Harper’s national security adviser, dismissed metadata as simply “data about data,” while Defense Minister Rob Nicholson assured Parliament that no Canadians have been “tracked” by CSEC in airports. But some of the data that the metadata is about is location data, which of course can easily be used to track individuals. When all else fails, both Rigby and the head of CSEC, John Forster, have pointed to the independent commissioner who is tasked with assuring CSEC’s legality. But both Rigby and Forster neglect to mention that in his last report to Parliament, outgoing CSEC commissioner Robert Décary explicitly withheld this very assurance, writing that while there was reason to believe CSEC’s actions may have been illegally directed at Canadians, he couldn’t reach a definitive conclusion, because key CSEC records (provided by CSEC) were “unclear or incomplete.”
Of course, we still don’t know the full extent of CSEC’s domestic surveillance activities. But our media’s response to not knowing has been to say as little as possible, to hedge bets and to underserve this story. We are quite comfortable writing think pieces about our national psyche, contrasting Canadian apathy with American worship of personal liberty. We are less adept at applying unyielding pressure on power by purposefully stoking public outrage.
The media must make the case that unchecked, secret mass surveillance is wholly incompatible with freedom in general and free expression in particular. The press cannot be considered truly independent or free, cannot truly hold power to account, with the spectre of the all-seeing eye of the state hovering above it. For those who feel they have nothing to hide, the difference between secrecy and privacy, to paraphrase author Cory Doctorow, always proves useful: When I use the bathroom, I don’t do anything I consider a secret, but that doesn’t mean I’m okay with you watching me in that private moment. If people don’t understand this, we need to explain it.
To be clear: I’m not talking about “starting a public conversation” or other such weak tea. I’m saying it’s our duty as journalists to intentionally stoke outrage, to insist that our readers and viewers and listeners give a damn and demand answers from the people who are spying on them. In this, at least, the press can be shamelessly partisan. We are explicitly pro-information and pro-answers, just as CSEC is explicitly pro-secrecy. Our mission is clear: if the public is asleep, it is our job to wake them. If Canadians are asking “Why should we care?” then it is our job as journalists to provide answers.
Jesse Brown is a media critic at canada-landshow.com. He created and hosted two CBC Radio programs: The Contrarians and Search Engine.
Sadly, Elaina’s case is not rare. Electronic devices give us the unprecedented power to communicate and educate—along with the ability to humiliate and harm each other, not to mention harass, sexually extort and blackmail, as has been alleged in the cases of Amanda Todd and Rehtaeh Parsons. But, in riding to the rescue, Canada’s federal government is once again camouflaging a power grab beneath a needed social protection.
Bill C-13 would make it a crime to use intimate images without consent of the person pictured: 162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty (a) of an indictable offence and liable to imprisonment for a term of not more than five years; or (b) of an offence punishable on summary conviction.
In addition, though, Bill C-13 would permit anyone to voluntarily give massive amounts of personal material to police and government without risking any civil or criminal punishment. This means that Internet service providers (ISPs), telecommunications companies, and website and social media operators—who have access to everything you’ve said, searched or done online—are free to collect, store and hand over your personal data without risk. In other words, spying, recording, stockpiling and sharing your personal information becomes the norm.
Equally unsettling, the proposed law would make it legal for anyone—child, youth or adult, including “enemies” and cyberbullies, or cyberabusers—to provide your personal data to the government without you knowing about it or being able to protest. How?
Under Bill C-13, briefly known as the “Protecting Canadians from Online Crime Act,” but formally and more transparently titled “An Act to amend the Criminal Code, the Canadian Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act,” the government proposes to:
• Make it legally impossible for you to take criminal or civil action against any “person,” including an Internet service provider (ISP) or a telecom company, who voluntarily preserves and turns over personal information to law enforcement. In other words, all that you write, speak, text, video-record and more online can be stockpiled, perused and held against you without any judge first deciding whether that’s fair.
• Even when police do ask a judge for a “demand or preservation” order requiring someone to stockpile and give them your material, they only have to show that they have “reasonable grounds to suspect”—not the tougher standard of “reasonable grounds to believe”—“that an offense has been or will be committed.” That’s a low hurdle to jump, especially since sexual images are routinely posted on a vast number of websites, including those that forbid sexual content. If you see them, share them or “like” them, without knowing whether consent was involved, are you liable to be monitored by authorities?
• Anyone who is ordered to collect and preserve data but refuses to could face a maximum fine of $250,000 or imprisonment for up to six months, or both.
• The federal government also wants the power to see all of your “transmission data” (metadata), such as the origin, destination, date, time, duration, type and quantity of your phone calls and online communications, as well as “tracking data,” which pinpoints the location of a person or object. This “information about information” doesn’t include content, so authorities are at risk of reaching false, misleading and damaging—not to mention convenient—conclusions about whom you know and associate with, for how long and where you go. This heightens concern, too, about social media sites that routinely record your “check-in” information, along with the location tracking used by popular mobile apps. Under Bill C-13, authorities could see data about your past movements without a warrant, but they would need one for ongoing “live” tracking and for remotely turning on your cellphone's GPS.
Chilling? Absolutely. Even law-abiding citizens who think they have nothing to hide cannot predict what will happen in the future, who will govern and what personal data might be used—or misused—against them. Nor should citizens living in a democracy be so freely surveilled on the suspicion they might be doing the wrong thing in the wrong place, especially since the Internet is such a vast space. The Charter of Rights and Freedoms guarantees Canadians the freedom to express themselves, to associate with whom they want, among other protections. Yet, giving the state more power to sneak and peek without supervision, and enlisting others to help without consequence, makes using the Internet to communicate or associate far less appealing.
There is no question that cyberabuse has the potential to do long-lasting psychological and physical damage (such as self-harm and playing a part in suicide). But at the heart of the protest against Bill C-13 is something just as important as ending cyberabuse: protecting every citizen’s right to live in a democracy rather than a police state. And asking our governments to do both simultaneously is hardly unrealistic.
The Criminal Code, for instance, can be used to counter crimes that take place online, with laws against creation and distribution of child pornography, child abuse, harassment, stalking and threatening, to name but a few. Police and some lawyers say those laws don’t always translate well online, but that’s hardly grounds for throwing citizen protections out the window. The ban on non-consensual sharing of intimate images may be laudable, but the potential for its misuse screams out for judicial oversight. Citizens need not allow the federal government to do through the back door what it cannot do through the front—an old legal trick historically frowned upon. Nor should citizens have to look over their shoulder as they go about their lawful business. We are entitled to express ourselves and associate with whomever we please, until a lawfully justified investigation decides otherwise.
Criticizing Bill C-13 is in no way a measure of how much (or how little) we care about what happens to children, youth and adults online or through other forms of electronic communication. We all care, some of us very deeply. But we cannot let the government play a similar card to the one it produced back in 2012, when Vic Toews, then public safety minister, tried to shame Canadians into green-lighting the sweeping surveillance bill, C-30, by telling us we were all siding with “child pornographers” if we didn’t give the government more power over us.
Yet again, we're being asked to stand with the government against cyberabusers by granting it carte blanche to our personal information. Requiring law enforcement—and anyone collecting and sharing our personal data—to act under judicial scrutiny is the best way to filter goose-chases from strong police work. Unchecked trafficking in citizens’ personal information is no better than sharing intimate images without permission.
Paula Todd is a journalism and digital media professor and a lawyer. She sits on the CJFE Board and chairs its Digital Issues Committee. Her latest book, Extreme Mean: Trolls, Bullies and Predators Online (Penguin/Random House) looks at the causes of cyberabuse.
About the cartoons: Cinders McLeod is a writer, a political cartoonist and an illustrator. Visit cindersmcleod.com for info about her art, blog and children’s books, I’m a Girl! and I’m a Boy! (HarperCollins). She is working on a novel.
*NAMES HAVE BEEN CHANGED
Interviews have been edited for length.
What is the biggest threat to free expression in Canada? The vast chill on free expression created by pernicious and ubiquitous spying. It is rapidly becoming apparent that advocating for human rights or environmental causes is going to get you spied on. Being spied on is intimidating. Granted, it hasn’t stopped Cindy Blackstock’s advocacy for aboriginal children. But what does Cindy’s case tell us about where the bar is set? Advocating for children! Ordinary people who want to voice concerns, who want to stand up for a cause, are chilled by the knowledge that they are likely to be spied on and viewed as a “threat.” Campaign organizers, whistleblowers, journalists working with confidential sources—all the people we rely on to help us fight and expose injustice are undercut and threatened by this surveillance.
Can you tell us about BCCLA’s lawsuit against CSEC? CSEC is Canada’s “signals intelligence” agency. CSEC works with the NSA, about which we have learned so much thanks to Edward Snowden. CSEC is supposed to focus its surveillance on “foreign” intelligence gathering, but it has vast powers to spy on the communications of Canadians. It gets its specific authority to do its spying from the Minister of National Defence, and the minister’s authorizations are secret. Only one commissioner reviews CSEC’s activities to see if it’s operating lawfully—sometimes years after the fact. Essentially, what you have is a system for mass surveillance conducted in almost total secrecy. No judge, no warrants, not even a parliamentary committee keeping track. We say this is a violation of Canadians’ constitutional rights to privacy and free expression.
What is essential reading for understanding the link between surveillance and free expression? The Guardian is your go-to newspaper for all things Snowden. Bruce Schneier’s blog (Schneier on Security, schneier.com) will help explain all the geeky parts and answer questions you didn’t even know to ask. Also Susan Landau’s Surveillance or Security?: The Risks Posed by New Wiretapping Technologies. And, if you’d like to hear the long version of what eroding privacy means for democracy, I spoke about that at Simon Fraser University, and there’s a handy podcast at bit.ly/mvonn.
Who else is doing important work in this area? The wonderful OpenMedia has spearheaded a broad-based coalition from across the political spectrum to push back against online spying. Canada is also home to amazing academic work in privacy and surveillance, including Michael Geist and the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic, scholars working with The New Transparency Project and the University of Toronto’s terrific Citizen Lab. Canadian privacy commissioners have also been critical players in this work. People and organizations in almost every country in the world are contributing to this work, which is emerging as one of the most pressing human rights issues of the 21st century.
We also recently launched a nationwide consultation on how to build a more Connected Canada, to ensure affordable alternatives to the giant telecom conglomerates. Canadians pay some of the highest prices in the industrialized world, and that needs to change. Having so much power in the hands of Big Telecom stifles the ability of independent and alternative voices to freely express themselves.
What’s the biggest threat to free expression in Canada? I’m most worried about the chilling effect that blanket government surveillance can have on people expressing themselves. I firmly believe surveillance of law-abiding residents equals censorship. People’s behaviours change when they know they’re being watched. We need to avoid a situation where journalists and citizens self-censor because they’re worried about who’s keeping track of them.
We also know that giant media conglomerates, particularly in the U.S., are trying to force Canada into adopting extreme copyright rules that would severely restrict people’s ability to express themselves online. The Internet is all about open sharing, collaboration and new forms of expression. Ironically, copyright was first invented as a way to encourage innovation and expression; yet now old industry interests are using it as a battering ram to stifle creativity online and prop up outdated business models. We’re fighting back with a crowdsourced vision for sharing and collaboration in the 21st century at OpenMedia.org/crowdsource.
What has been OpenMedia’s biggest success to date? Our biggest success regarding free expression is defeating Vic Toews’ online spying bill, C-30. We rallied more than 150,000 Canadians to speak out and say that warrantless, invasive and costly spying is unacceptable. It’s rare for a majority government not to get their way on proposed legislation—but we showed it is possible to win when Canadians work together. Now we’re determined to do likewise with Justice Minister Peter MacKay’s new online spying bill, C-13. We know the government is already spying on us through CSEC, and they’re trying to cover their tracks by granting immunity to telecom providers who hand them our private information without a warrant. Canadians care about their privacy, and opposition to MacKay’s bill is spreading fast.
OpenMedia was working to protect Canadians’ digital privacy long before the Snowden revelations. Have you noticed a change in Canadians’ perception of surveillance and privacy in the past year? Absolutely. We’ve seen a steady stream of revelations over recent months, and more and more Canadians are taking notice. We see this with the numbers joining our Privacy campaign, for example—now more than 32,000. Most people had no idea that mass government surveillance of law-abiding citizens is taking place—and when people find out, they’re taking action to help put a stop to it. It’s becoming clearer just how out of control government spying is, and for many the implications on our basic freedoms are coming into focus for the first time.
Can you recommend any reading on these issues? OpenMedia produced an infographic on how Canadian government spying could affect you. You can find it at openmedia.ca/csecandyou. Ron Deibert’s book Black Code: Inside the Battle for Cyberspace really lifts the lid on how powerful interests are trying to shape the Internet to serve them and not citizens. It’s a real wake-up call to everyone who cares about the Internet’s future, and is well worth a read.
What advice would you like to give Canadians? Believe in your power to change things for the better. The challenges we face can seem so huge that people feel disempowered, but when Canadians stand up and work together, we can push back and win. Your MPs need your vote, and nothing scares them more than local voters organizing against them. Send your MP a message about spying at openmedia.ca/stand, and encourage others to do the same.
How does Canada’s performance on the RTI Rating differ from its actual performance on managing ATI requests? The RTI Rating only measures the legal framework for RTI, not how countries implement those laws. However, we have observed that while there is no linear correlation between score and performance—inasmuch as some high-scoring countries have abysmal implementation records—it is difficult for countries with weak laws to perform very well. Our own experience suggests that this is the case for Canada, and this is corroborated by other studies. A number of studies on implementation, for example, have indicated that Canada scores behind peer group countries like the United Kingdom, Australia and New Zealand. It is very significant that Canada is only now starting to put in place systems for making electronic requests—which obviously hugely facilitates the requesting process—whereas much poorer and less developed countries, like India and Mexico, have had these systems in place since the beginning of their RTI laws.
Many Canadians will never file an access to information request. Why should they care about our ATI system? That is an interesting observation and question. All Canadians benefit from RTI even if they do not actually make requests. When a request leads to information that reveals wrongdoing or corruption, this helps create an environment that militates against this sort of behaviour, which is clearly to the benefit of all Canadians. It was, for example, a series of ATI requests that revealed the Quebec sponsorship scandal, which ultimately led to the Gomery Commission and arguably the downfall of the Liberal government. In other cases, requests lead to changes in the proactive disclosure of information, which then benefits a far greater number of people. For example, following a series of requests in Nova Scotia, spending by members of the legislative assembly is now posted online monthly, available to everyone without the need to file an access to information request.
Which provinces or territories that stand out as leaders in this area? Which have the most room for improvement? According to CLD’s report, Failing to Measure Up: An Analysis of Access to Information Legislation in Canadian Jurisdictions (bit.ly/cldreport), British Columbia has the best ATI law in Canada, scoring 97 on the RTI Rating, while Canada (federally) ties for bottom place along with Alberta and New Brunswick (all with 79 points), with Saskatchewan, Quebec, Nunavut and the Northwest Territories not far ahead. However, British Columbia’s score would just place it 30th in the world, which is not exactly stellar. At the same time, as noted, the RTI Rating is a formal measure of the strength of the legal framework, which does not assess the quality of implementation efforts.
What are the biggest threats to free expression in Canada? Other than RTI, which is clearly a priority issue, I would point to a number of weaknesses in the overall framework for freedom of expression. Defamatory libel remains a criminal offence, which is inherently problematical, and almost no Canadian jurisdictions have legislation against SLAPPs (strategic litigation against public participation)—cases brought not to recover damages but to silence people. The law on protection of sources has been developed through jurisprudence, which necessarily leaves some gaps, and the whole area would benefit from being encoded in statutory law. Canada does have whistleblowing legislation, in the form of the Public Servants Disclosure Protection Act, but this law has several shortcomings, including the wholesale exclusion from its scope of Canada’s Armed Forces and the Canadian Security Intelligence Service (CSIS). Finally, there have been abuses of freedom of assembly, and of freedom of expression, in the context of several demonstrations in Canada, as well as several very unfortunate, if short-lived, pieces of legislation extending police powers during demonstrations.
Can you explain what an ITO is? An Information to Obtain, or ITO, is an affidavit sworn by a police officer submitted to a judge in order to persuade the judge to issue a search warrant or a production order [which requires a person to hand over documents within a specified time]. Since these are orders sanctioning highly intrusive actions by the police, the ITO must disclose to the judge the status of the investigation and the relevance of the information sought through the issuance of a search warrant or a production order. Much of the debate over what to release to the public focuses on the need to protect confidential sources and to protect the fair trial rights of the accused.
Why is it so important that the public has access to court documents? Canada has an open courts system, which is meant to ensure accountability through transparency. Public oversight is essential to keep those in power honest and acting in the public interest. The open courts system is one of the hallmarks of a healthy democracy and one way in which Canada is distinguished from the repressive totalitarian regimes that plague the world. Access to court documents that should be publicly accessible is too often dependent on the whims of administrative staff, who seem to interpret the directions of their superiors depending on the case. There needs to be a clearer recognition from courts’ administration decision makers that the public should not have to suffer through delay and expense to get access to public court documents.
How involved are Canadian courts in protecting freedom of expression? Our courts play a vital role in balancing the need for an open and transparent system with the countervailing interests such as privacy rights and the need to preserve an accused’s right to a fair trial by jurors capable of rendering an unbiased decision. The courts are also engaged in protecting people against false and damaging statements through the administration of defamation laws. Unfortunately, defamation suits can give rise to “libel chill,” where unmeritorious lawsuits are brought to block or discourage legitimate and important free expression. Just the cost of defending a lawsuit, let alone the possibility of suffering an award of damages, often deters poorly funded public interest groups such as NGOs from exercising their legitimate right to free speech. The pernicious damage these “SLAPPs” (strategic litigation against public participation) do to free expression has been recognized by anti-SLAPP legislation in Quebec and many U.S. states, and it is being contemplated in Ontario [see “Anti-SLAPP Bill Stalled,” page 22]. Hopefully, in spite of intense lobbying by big business interests against anti-SLAPP legislation, Ontario will follow through and pass this important bill.
What other cases are you involved in? First, I want to recognize Phil Tunley, who has been spearheading CJFE’s court challenge to prevent police officers from impersonating journalists. I, along with our firm’s media group, am also working on an important copyright matter, and cases where we are seeking to protect academic freedom.
Is there anything else you want to add? Without the media’s considerable investment of time, money and resources in defending freedom of expression, the public would be without much of the information it needs to make informed comment and those vital election day decisions. In addition, many groundbreaking Canadian defamation cases were the result of the media’s defence of freedom of expression.
JOIN CJFE and help us defend freedom of expression and press freedom in Canada and around the world.
JOURNALISTS IN DISTRESS FUND
CJFE provides humanitarian assistance to journalists around the world who have been attacked or threatened because of their work. We also coordinate a group of 21 international organizations that provides distress assistance to writers and journalists. Grants are provided to help journalists and their families acquire medical attention, travel to safety and receive legal assistance. To date, CJFE has provided more than $220,000 in funding through this program.
SCOTIABANK/CJFE JOURNALISM FELLOWSHIP
In 2009, CJFE partnered with Scotiabank and Massey College to create a Fellowship to promote dialogue and explore journalism and free expression issues in the Americas. The Fellowship is open to journalists from South America, Central America, Mexico and the Caribbean. The 2013-2014 Fellow is José Peralta, a journalist from Uruguay whose work on organized crime, government corruption and energy development is a crucial part of the nation’s growing free press.
CJFE GALA: A NIGHT TO HONOUR COURAGEOUS REPORTING
Each year we recognize the brave work of journalists and free expression advocates from Canada and around the world at our annual Gala. More than 450 people attended our 16th annual CJFE Gala, held at the Fairmont Royal York in Toronto on Dec. 4, 2013, and hosted by CBC correspondent Adrienne Arsenault and CTV’s Canada AM co-host Beverly Thomson. The International Press Freedom Award winners were Dessale Berekhet Abraham, Mebrahtu Teclesion Berhe and Ruth Zecarias Ghebre from Eritrea and Ahmet Sık from Turkey. Bob Thomson, the Canadian civil servant who blew the whistle on the Canadian government’s refusal to accept Chilean refugees following Gen. Augusto Pinochet’s violent military coup in 1973, won our Integrity Award.
INTERNATIONAL DAY TO END IMPUNITY
When people act with impunity, it means they are not held accountable for their actions. In cases of crimes against free expression, most perpetrators—including those responsible for the murder of Canada’s own Tara Singh Hayer—are never brought to justice. IFEX launched the first International Day to End Impunity campaign in November 2011 to shed light on this global problem. Last year, the network welcomed the United Nations’ decision to proclaim Nov. 2 the International Day to End Impunity for Crimes Against Journalists as an opportunity to further build and strengthen support for this cause.
WORLD PRESS FREEDOM DAY
Each year on May 3, World Press Freedom Day serves as a reminder of the importance of press freedom, and the critical role of freedom of expression.
ADVOCACY WORK IN CANADA
The vital free expression rights of Canadians have been challenged repeatedly, from the creation of the Alberta “Gag Order” law to the ever-diminishing power of our Access to Information legislation. In the past year, CJFE has successfully lobbied MPs to kill two bills that would have compromised journalistic integrity at the CBC. We’ve also held two protests to pressure governments to release jailed journalists: one at the Turkish embassy in Toronto and another at Nathan Phillips Square, the latter of which was part of an ongoing campaign to free Canadian citizen Mohamed Fahmy and his colleagues, CJFEcanadawho are being held in an Egyptian jail on spurious charges. Finally, CJFE intervenes in legal cases that we hope will lead to the creation of better laws to protect freedom of expression across the country. These include cases of hate speech, access to information, protecting sources, police impersonating journalists and defamation and libel.
The past year has seen CJFE’s website become a specialized hub covering free expression in Canada and abroad. We continue to find creative ways to provide context and analysis on critical issues. Our audience is growing, and CJFE’s website is becoming a go-to resource for understanding complex matters related to free expression.
COMMUNICATIONS AND OUTREACH
CJFE received financial support in 2012 from OMNI Television, which led to the creation of two public service announcements (PSAs) in partnership with advertising agency Juniper Park. These captivating 30-second PSAs explain how the erosion of free expression rights affects Canadians. The second PSA launched at our 2013 Gala; check it out on CJFE’s YouTube channel at youtube.com/user/CJFECanada.
In addition to our annual Gala, CJFE organizes and participates in conferences, film screenings, panel discussions and other events throughout the year. You can find all of our events on the CJFE website. Recent events include:
• Voices of Freedom, a multimedia event featuring a wide range of speakers, musicians and artists, held in partnership with the Art Gallery of Ontario and in solidarity with Chinese dissident artist Ai Weiwei. He has been under house arrest since speaking out against his government in 2011.
• To mark the International Day to End Impunity, CJFE held an online interactive chat with Aaron Berhane, an exiled Eritrean journalist now living in Canada. He shared his first-hand experiences of working in a culture of impunity and fleeing his home country for safety.
• Following the arrest of several Al Jazeera English journalists (including Canadian citizen Mohamed Fahmy) in Egypt, CJFE partnered with the broadcaster in a campaign for their release. This has included a social media blitz, an online petition, a major press conference and ongoing media coverage.
CJFE is fortunate to have the support of several key organizations. Their pro bono services allow us to work at a level that would not be possible otherwise. This includes:
• Award-winning ad agency Juniper Park has worked with us on numerous projects, including branding and the design of CJFE’s logo, public service announcements and the image "5 Years" in this edition of the Review of Free Expression in Canada.
• The savvy public relations team at Media Profile helps us design and implement communications strategies for our campaigns. Their work on the 2013 Gala resulted in stories that reached an audience of 6.5 million people.
• Massey College works with us on our Scotiabank/CJFE Journalism Fellowship.
• CJFE also receives generous support from CBC, CTV, The Globe and Mail, the Toronto Star, OMNI Television, Al Jazeera and many others.
Media workers across the country gained improved access to information related to ongoing police investigations, most notably getting the opportunity to publish warrants and wiretap evidence used during a police probe into Toronto mayor Rob Ford and his associates. On the other side of the spectrum, there has been disquieting movement on libel and defamation law. In one trial of note, the Ontario Court of Appeal ruled that libel republished across different mediums (e.g., in print and on websites) must be treated as a separate libel on each of those mediums. This case sets a significant precedent that could leave media outlets and citizens alike open to chilling, and potentially very expensive, compounded litigation.
The past year’s rulings show that, in some cases, the efforts of those fighting to expand free expression in Canada are paying off. But the laws governing that right still run the gamut from laudable to slipshod to completely unacceptable, and strengthening those laws will continue to require vigorous efforts from the defenders of free expression in Canada.
The following summaries were written by Anita Mielewczyk. This section was made possible by a generous grant from Ad IDEM/Canadian Media Lawyers Association.
The Ontario Court of Appeal ruled that the CBC could edit a segment of Dragon’s Den “as it saw fit,” which included the possibility of portraying a contestant in a “factual, fictional or defamatory image.” The contestant in this case had signed a Consent and Release agreement, which amounted to an “express and unambiguous” release of all such claims.
This decision confirms the validity of properly executed release forms and should discourage defamation claims made by those who have signed them.
• Full text of decision: canlii.ca/t/g23r1
PHOTO: SEAN KILPATRICK/THE CANADIAN PRESS
GUERGIS V. NOVAK 2013 ONCA 449 (JUNE 28, 2013)
Former Conservative cabinet minister Helena Guergis, who claimed she was pressured to resign under duress following a meeting with Prime Minister Stephen Harper, has been stopped from suing the prime minister, the Conservative party and others.
Guergis had been seeking general damages of $800,000, along with another $250,000 in punitive damages from each of the 10 defendants, alleging, among other things, defamation, conspiracy, negligence and intentional infliction of mental suffering. The defendants argued they were protected by Crown or parliamentary privilege, and that their statements were not defamatory.
The Ontario Court of Appeal agreed with the defendants and ruled “the statements and letters upon which the allegations of defamation are based are either not capable of being defamatory or are protected by absolute privilege” on the grounds that they were between officers of state.
• Full text of decision: canlii.ca/t/fzgjl
PHOTO OF MICHAEL SHTAIF: FERNANDO MORALES/THE GLOBE AND MAIL
SHTAIF V. TORONTO LIFE PUBLISHING CO. LTD. 2013 ONCA 405 (JUNE 17, 2013)
Michael Shtaif and Gregory Roberts brought an action against Toronto Life for an article published in June 2008 that they claimed was libellous. However, when the article first came out in print form, neither Shtaif nor Roberts sued. They became aware of the online version of the article a few months later and then launched their lawsuit.
Toronto Life argued, in its defence, that Shtaif and Roberts had waited too long to sue, based on the existing time limitation rules for commencing a defamation lawsuit involving a “newspaper” or “broadcast.”
The Ontario Court of Appeal noted that these time limitations were written for traditional media before web publishing was an issue, so the court decided to leave this decision to trial. However, the Court ruled that where an alleged libel is republished across different mediums, including the Internet, those republications will be treated as distinct libels. As a result, plaintiffs can choose which allegedly libellous publications they might wish to sue upon. The decision also meant that the plaintiffs’ action for libel with respect to the online version of the article could proceed to trial.
• Full text of decision: canlii.ca/t/fz6kd
The Edmonton Journal successfully brought an application for the right to see the information a justice relied on in issuing a production order (which compels someone other than the person under investigation to produce documents) sought by the police. The Justice Department, on behalf of the police, had argued that the newspaper should not have the right to see the Information to Obtain (ITO) on the basis that they sought the production order for an ongoing police investigation.
In his judgment, Justice J.L. Dixon stated: “the administration of justice is always best served through fully illuminated and informed debate within the arena of the courtroom…”
• Full text of decision: canlii.ca/t/g2jt1
R. V. HUTH 2013 BCSC 2123 (NOV. 22, 2013)
This judgment from British Columbia resulted in the release of copies of videotapes to CTV Vancouver Island News, after it applied for their release. The videos were filmed by surveillance cameras located inside and outside a McDonald’s restaurant in Victoria, B.C., where a murder took place, and they were used as exhibits in the manslaughter trial and conviction of Brandon Huth.
• Full text of decision: canlii.ca/t/g1zlb
PHOTO: NATHAN DENETTE/THE CANADIAN PRESS
CANADIAN BROADCASTING CORPORATION AND OTHERS V. HMQ 2013 ONSC 6983 (NOV. 13, 2013)
In the fall of 2013, there were decisions on a number of media applications to the Ontario Superior Court of Justice requesting access to additional information in the ITO for the “Project Traveller” investigation. This most recent judgment focused on edited material the Crown was withholding on various grounds. Project Traveller was an ongoing investigation into alleged gang-related activity concentrated in northwest Toronto. It implicated Toronto mayor Rob Ford and several of his acquaintances, including friend and occasional driver Alexander Lisi.
After having been ordered to release an edited version of the ITO in an earlier judgment, the Crown argued that information relating to innocent third parties, wiretaps, police investigative techniques and confidential informants should remain blacked out. However, Justice Ian Nordheimer found that, with the exception of information relating to the mayor’s wife and information that could compromise the fair trial rights of Alexander Lisi, “there is no serious risk posed to the administration of justice arising from giving public access to this material. Further, the negative impact on the public’s right to know … would greatly exceed any beneficial effects of maintaining the sealing order.”
• Full text of decision: canlii.ca/t/g1vsp
R. V. CTV 2013 ONSC 5779 (SEPT. 20, 2013)
Chiheb Esseghaier and Raed Jaser were charged with terrorism offences relating to a plot to derail a VIA Rail train, and a judge sealed the six ITOs sworn by police to obtain search warrants. Media outlets applied to have the orders unsealed, and for the right to publish the contents of the ITOs.
The court granted the media applications in part. However, to protect the fair trial rights of the two accused, certain information in the ITOs will remain sealed until their trials.
• Full text of decision: bit.ly/1rRDOGl
NORTHWEST ORGANICS LIMITED PARTNERSHIP V. MAGUIRE 2013 BCSC 1328 (JULY 26, 2013)
In this case, which was heard in the Supreme Court of British Columbia, the defendants (a group of residents in the Botanie Valley, near Lytton, B.C., who call themselves the “Botanie Valley Advisory Committee”) were sued for defamation by Northwest Organics, Ltd. and Northwest Group Properties Inc. (a corporation owning property in the Botanie Valley), which was actively developing a composting facility.
The defendants, who oppose the development of the facility, applied for an order to dismiss the plaintiffs’ claim of defamation as strategic litigation against public participation (SLAPP). The defendants say the primary purpose of the lawsuit is to infringe on their freedom of expression. In their application, the defendants had argued that the tests for certain rules in B.C. civil proceedings should be revised in the context of SLAPP cases. Justice Savage noted that applying the rules in this way would “radically change the substantive law of defamation,” and he declined to address the defandants’ application. He suggested that this issue could be addressed by the legislature. Currently, only Quebec has rules specifically addressing SLAPP suits.
• Full text of decision: canlii.ca/t/fzttb
PHOTO: MICHAEL HAWKINS/THE CANADIAN PRESS
CANADIAN BROADCASTING CORPORATION ET AL V. SAINT JOHN POLICE FORCE ET AL NBQB 167 (MAY 17, 2013)
In November 2013, Dennis Oland was charged with second-degree murder in the death of his father, Richard Oland, who was found dead in his Saint John, N.B., office in July 2011.
While the investigation was in progress, and prior to Dennis Oland’s arrest, media organizations had been trying to have the search warrants, ITOs and other sealed court documents made public. This decision from the New Brunswick Court of Queen’s Bench quashed the publication ban on the names of the persons searched and the murder suspect. Subsequent decisions released in October 2013 removed other redactions on information contained in the transcripts of the cross examination of one of the investigating officers.
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CJFE sincerely thanks the following organizations, whose generous support has been critical in making the publication of our fifth annual Review of Free Expression in Canada possible:
We would also like to give special recognition to the dozens of people who donated to our crowdfunding campaign and shared it on social media. With your support, we surpassed our $5,000 goal, raising a total of $6,026—money that funds the Review and greatly supports CJFE’s work in defense of free expression. Our deepest thanks go to all of you for helping to make this good work possible.