'An important first step' in protecting journalists' sources
By Tonda MacCharlesOttawa Bureau reporter
Bruce Campion-SmithOttawa Bureau
Sat., Nov. 25, 2017timer7 min. read
OTTAWA—Vancouver Sun crime reporter Kim Bolan writes a crime blog called Real Scoop, a go-to stop for cops and gang members alike. Often they don't like what they read.
The good guys sometimes come after Bolan for her sources. The bad guys, too.
Until now, Bolan has had few tools to shield the identity of people who talk to her other than the legal resources of a big-city newspaper and editors willing to stand behind her refusal to divulge her sources.
In a resource-challenged media world right now, that's not a given.
In fact, Bolan is in the middle of a court battle to deflect an effort to force her to disclose a source. She'll say very little about it because it is an ongoing case subject to a sweeping publication ban.
So for Bolan, the Journalistic Sources Protection Act, that was unanimously passed by the House of Commons and Senate, and took effect Oct. 18, is not an abstract feel-good piece of legislation.
"It's an important first step," she says.
The law does not offer retroactive protection, nor does it put journalists' sources completely beyond the reach of a court disclosure order. Indeed, the act is so new — there has not yet been a test case to see it in action — that it's hard to know how strong the protections truly are.
But Bolan believes it puts law enforcement on notice they must exhaust other avenues before they start looking for court orders to seize journalistic source material.
And in addition to protecting sources, the law may help protect journalists who face real risks — like her — if sources believe the media is simply doing the bidding of the police.
"That helps me do my job," says Bolan, and allows her to back up a promise of anonymity by pointing to a law on the books.
Big stories about the transgressions of powerful institutions and influential people often begin with a tentative phone call, an email, an envelope from an insider providing information that puts a journalist on the trail of a story.
While such sources are known to the reporters writing the story, the sensitivity of the information they provide often means their careers, even their lives, could be at risk if their identities were to become public.
Think of the federal sponsorship scandal in the early 2000s.
Globe and Mail reporter Daniel LeBlanc wrote groundbreaking stories based on information from a confidential source he nicknamed "Ma Chouette," whose identity he fought to protect, all the way to the Supreme Court of Canada. In 2010, the high court said journalists' sources may be protected but it was to be decided on a case-by-case basis.
The hunt to identify sources can also intrude on the personal privacy of journalists.
In 2007, La Presse journalists Joel-Denis Bellavance and Gilles Toupin wrote a story containing leaked information about Adil Charkaoui, who was suspected of having terrorist ties.
Remarkably, the story put the police on their tail. A team of Mounties placed the two journalists under surveillance for nine days, hoping it would lead them to the person who had leaked sensitive documents cited in the story.
It would only be several years later that the operation came to light, exposing a gap in the law that left journalistic sources vulnerable to police tracking in a way that imperilled reporting in this country.
Conservative Sen. Claude Carignan, a lawyer, proposed Bill S-231following the revelations that police had spied on the two Quebec journalists.
"For me, the problem was urgent . . . the role of the media is fundamental," Carignan said in an interview in his Parliament Hill office.
The disturbing reports of police surveillance of Bellavance and Toupin revealed that lawmakers and citizens had a "false sense of safety" about press freedoms in this country, he said.
It was not an isolated occurrence.
It soon emerged that Montreal police had been monitoring Patrick Lagacé, a columnist with La Presse, checking his iPhone calls in a bid to discover the source of a suspected leak within the force.
Then news broke that the Quebec provincial police had tracked the cellphones of six journalists in 2013 to try to identify the source of a leak.
The revelations prompted the Quebec government to call an inquiry, brought political condemnation from Prime Minister Justin Trudeau and helped spur passage of Carignan's bill by appalled legislators.
The new law ensures that police may gain access to journalistic source material only as a last resort. It amends the Criminal Code and Canada Evidence Act to provide that only a superior court judge may approve a search warrant or production order, after a closed hearing with the police or state agency in which the judge may request the advice of a special advocate as he or she weighs whether the public interest in the investigation outweighs the journalist's right to privacy. That's the legal test that must be met.
To a journalist, the suggestion that the police might be eavesdropping or following you is a stomach-churning one. Not just one source but potentially many could be identified.
The Star's Ottawa bureau was recently tipped off that one of its journalists was under RCMP surveillance in connection with an exclusive news story last February reporting the federal government had reached a settlement in a lawsuit by three Muslim Canadian men jailed and tortured in the Middle East.
It's almost impossible to nail down such a tip. Warrants for wiretaps or tracking a person's communications or movements are sealed. And for months, it served as a warning that chilled communications with sources.
In the past several weeks, a senior RCMP source who cannot be identified told the Star the tip is wrong, that the country's national police force has no Canadian journalist under surveillance, and that the Mounties seek other routes to look for the source of suspected leaks of classified information.
It wasn't always that way. The RCMP was lambasted for its 2004 raid on the home of Ottawa Citizen journalist Juliet O'Neill looking for the source of a leak. A judge two years later struck down the section of the Security of Information Act used to issue that raid authorization.
Today, there is clearer authority in Carignan's bill for the rare occasions when such court orders would be issued, and it provides for the first time statutory protection for the identity of journalists' sources.
Duncan Pike, co-director of the Canadian Journalists for Free Expression, said that Canada had been one of the few western democracies without a shield law.
The police surveillance of journalists was one reason that Canada has fallen 14 places to 22nd spot in the past two years in the World Press Freedom Index. The incidents underscored how the rules that governed this "were completely broken," Pike said.
"We needed more stringent and much greater protection for journalist sources, and how and when police could use these kinds of investigative tools," he said.
The initial surveillance of La Presse's Bellavance and Toupin was done by RCMP officers without the required authorization from their superiors.
But the subsequent surveillance of other Quebec journalists was done within the bounds of judicial process, including the sign-off by justices of the peace — highlighting how the legal system offered little safeguards for journalists and their sources, Pike said.
"They were fully within the law doing all this, which was the problem," Pike said. "That's why it so desperately needed to change."
Advocacy groups and media outlets, including the Toronto Star, got behind the push to make the Carignan's proposed legislation a reality, warning that without better protections for sources, the information they provide journalists would dry up – and with it, vital stories.
"Many journalists' investigations begin with a reporter being given confidential information from a whistle-blower," Toronto Star editor Michael Cooke told a Senate hearing earlier this year during its study of the bill. Like the proverbial pebble starting an avalanche, sometimes all it takes is a concerned citizen or a civil servant or a serving police officer to confide in a reporter.
"Such revelations of public interest . . . would not have been possible without the contribution of those anonymous sources who trust journalists to protect them," Cooke said.
Lawyers and media experts say it will take a test case to define the legal balances between police investigations and journalistic freedoms.
But Paul Schabas, an experienced media lawyer who has represented the Star, called the new law a "good, strong step."
"If the media can't rely on confidential sources, the sources will dry up and that goes to the heart of how investigative journalism works," Schabas said in an interview.
"Law enforcement, Crown attorneys and frankly even judges need this legislative reminder that media are only supposed to be a last resort for information and only after a really carefully balancing of freedom of the press."