PHOTO: Jon S/Flickr. CC BY 2.0
By Tom Henheffer and Shawn McCarthy
As recent events in Quebec and elsewhere in Canada amply demonstrate, journalists are vulnerable to often arbitrary and summary treatment concerning search warrants and production orders with regard to sources.
Ben Makuch of VICE News is appealing a court order to turn over his communication with his source to the RCMP. While working at VICE, Makuch communicated via the messaging application Kik with an alleged Canadian member of the group ISIS in Syria. As a result, the RCMP demanded access to Makuch’s chat records.
In March 2016 a court found in favour of the RCMP. However, in October 2016 a judge permitted an intervention by civil liberties, labour and media organizations, including CJFE, are alarmed about the precedent setting nature of the case. February 6th was the final court date in this process before a decision is reached by the court.
The March ruling set a precedent that has potentially ruinous and wide-ranging implications for press freedom and the integrity of journalism in Canada. This makes the outcome of the appeal a matter of importance to all Canadians. The public’s right to know is at risk.
As well as the legal action against Makuch, news outlets reported in 2016 that police had issued warrants to spy on at least eight journalists, checked phone records to see if officers had been in contact with journalists, and seized a journalist's laptop. Authorities also called for increased police surveillance powers and criticized encryption for hampering police work. Last month, CJFE released details of a nationwide poll that only 11% of the 2,316 Canadians surveyed believe it is acceptable for police to monitor journalists to find their sources, while 70% believe that placing journalists under surveillance undermines press freedom.
Journalists play a unique role in our democracy. Because of their independence from government and their objective nature, they in the rarified position of being able to communicate with and gather information from certain groups, be they marginalized peoples, members of organized crime, suspected terrorists, or other persons who normally would not speak to government, security agencies, police officers, or the public at large. Journalists are the go-between for the public, who can reach out to these people and tell their stories.
These stories, whether they be from a gang member or a suspected ISIS militant, are crucial to informing the public. But the ability for journalists to disseminate this information depends on an extremely fragile relationship. If journalists are seen to be an arm of law enforcement, or if it is believed that their communications are being monitored, their sources will dry up. If that happens, the public, governments, police and security agencies, will all lose because journalists will no longer be able to tell these stories. Confidentiality is key to these relationships, and it must be protected.
This is why a private member’s bill by Senator Claude Carignan, head of the Senate Opposition, represents a good start in filling a void in Canadian law protecting journalists. Bill S-231 is now before the Senate Legal and Constitutional Affairs and stands a good chance of receiving Third Reading in March or April before being sent on to the House of Commons for approval.
Journalists and non-journalists should be applauding. In fact, the same poll showed widespread support for these efforts, with 70% of Canadians supporting the creation of a press shield law at the federal level.
Responsible reliance on confidential sources is a recognized practice by journalists in providing information to society when reliance on attributable sources of information is not possible. In recent years it has been increasingly recognized in judicial rulings and by public office holders.
Unfortunately, there is a need to codify protection of this practice, particularly in regard to the issuance of search warrants and production orders leading to identity of sources.
Bill S-231 would amend the Canada Evidence Act to protect the confidentiality of journalistic sources. It would allow journalists to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source. These are overdue amendments.
Several sections of this bill provide urgently needed protections in the courts to protect confidential sources and prevent a chilling effect on willingness to communicate with journalists.
These sections are:
· Amendment of the Criminal Code so that only a judge of a superior court of criminal jurisdiction may issue a search warrant relating to a journalist. Search warrants issued against journalists are far too important to be left to Justices of the Peace, often retired bureaucrats, to grant on a summary basis, as is all too common practice.
· S-231 also provides that a search warrant can be issued only if the judge is satisfied that there is no other way by which the desired information can reasonably be obtained and that the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in the collection and dissemination of information. In other words, the onus would be on applicants to demonstrate the orders they are seeking are in the public interest rather than on news organizations to prove anonymity is in the public interest.
The bill has a narrow definition of who can legally call themselves journalists. We would suggest the definition be widened to reflect emergence of newer practitioners of journalism such as bloggers. Our proposed definition of journalist reads:
any person who contributes directly, either regularly or occasionally, to the collection, writing or production of information for dissemination by any media, including newspapers, magazines or other print media, television, radio and other broadcast media, and any online or other media, or anyone who assists such a person.
Our proposed definition of journalistic source reads:
any source that transmits information to a journalist.
We realize this is very broad, but there are two reasons for this: (1) a court or police agency will usually not know whether a source is "confidential" or not in advance, and this should not be part of the "threshold" that triggers special care; and (2) as in the Makuch situation, compelling information about a source, even if they are not a "confidential" source, has a chilling effect on journalistic sources.
We would also recommend all documents seized through search warrants issued against journalists be automatically sealed for at least 48 hours to provide news organizations time to challenge them.
In addition, provision should be included for regular legislative review to keep the legislation relevant.
Senator Carignan’s bill could turn out to be beginning of full legal recognition of how modern, responsible journalists serve the public and protect democracy. Both houses of Parliament should support this initiative.