Link between police and courts called into question
by Emilee Gilpin & Matt Gilmour
Canada prides itself on being a country where individual rights and the freedoms of thought and expression serve as pillars of a liberal democracy. Yet, recent revelations that police have tapped the phones of journalists indicate that those freedoms are under attack in Quebec.
An investigation into the relationship between police and the courts reveals that changes to the legal system may be necessary in order to protect journalists’ rights.
In early November, La Presse newspaper reported that one of its most prominent journalists, Patrick Lagacé, had been the subject of court-mandated surveillance by Montreal police. Soon after, the Quebec provincial police admitted that they had also monitored the phones of six reporters in 2013. That surveillance included GPS data collection and in some cases, eavesdropping on private calls.
The police’s attempts to use surveillance of this nature to discover the identities of journalists’ sources have sparked outrage today in the press and public.
The news came as a shock to Lagacé, who alone had been the subject of at least 24 separate warrants. “I always thought that if a police officer were to go to a judge and ask for my phone records or to put a DNR [digital number recorder] on me, he would basically be laughed out of the chambers by the judge,” he said in an interview.
“It turns out I was naive.”
Without the guaranteed protection of source confidentiality, how can journalists cultivate secret sources, or receive information from would-be whistleblowers?
“I would [also] be naive to tell you this will have no effect,” Lagacé said, expressing concern that his credibility as a journalist might be compromised as a result of the spying.
“A lot of the information comes from sources who trust reporters,” agreed Stephane Giroux, the recently appointed president of the Federation of Professional Journalists of Quebec.
“One of the greatest stories to break in the last 20 years was the corruption in Quebec that eventually led to the Charbonneau Commission,” a four-year investigation into how construction contracts are awarded, he said. It’s unlikely that corruption would have been exposed if sources within the government had not felt safe speaking with reporters.
“And now we’re finding out that the journalists who investigated that corruption were under surveillance by police [for] at least five years,” he said. “So you can only imagine now how people will be fearful about sharing their stories with the media.”
The fact that these surveillance warrants were obtained legally in Quebec, despite a Supreme Court ruling in 2010 that granted special privilege to the reporter-source relationship, concerns those watching the story unfold.
Years after Globe and Mail reporter Daniel Leblanc first exposed what would later become known as the “Sponsorship Scandal,” that tainted the federal Liberal Party in Quebec, the Attorney General of Canada pressed him to reveal the identity of MaChouette, the pseudonym name for the whistleblower Leblanc relied on during his investigation.
The Globe and Mail successfully argued to the Supreme Court that Leblanc should be allowed to withhold MaChouette’s true identity; the court’s ruling stated that the preservation of MaChouette’s anonymity was integral to the public’s right to benefit from investigative journalism.
“What the Supreme Court of Canada [said] is that if you want to breach reporter-source confidentiality, it has to be about a very serious matter,” said Alan Conter, a media critic and law and ethics professor at Concordia University.
“You as a police force, or as a prosecuting force, like the Crown, have to demonstrate that you have exhausted all other avenues to get that information,” he explained.
The Supreme Court used a test known as the Wigmore Doctrine, which allows courts to determine whether reporter-source privilege should be granted on a case-by-case basis. Therefore, it can be concluded that Quebec judges felt that identifying internal leaks and protecting the secrets of authority figures provided sufficient cause to violate the sanctity of reporter-source relationship, Conter explained.
“Prior to the introduction of the 1982 Charter, courts in Canada tended to err on the side of helping out the Crown or cops,” he said. “What the Supreme Court has been trying to do is correct a former bias, and what has been revealed in Quebec over the past few weeks indicates that there is a lot of work to be done in that regard.”
Hugo D’Astous, a criminal defence lawyer in Montreal, agreed and called for an examination of potential conflicts of interest in municipal courthouses. “Crown attorneys and police officers work very closely together,” he said in a phone interview. He referenced a 2016 study conducted by the Quebec Remuneration of Judges Committee which showed that 94 per cent of the justices of the peace are former Crown attorneys.
This was the case with Justice of the Peace Josée de Carufel who signed off on the warrants to spy on Lagacé, according to La Presse. De Carufel was nominated to the position four years ago, after working for two decades as a government lawyer.
Justice de Carufel’s office did not respond to a request for an interview.
“There is a perceived bias,” Conter said. “Justices of the peace would be culturally more prone to acquiesce to requests coming from people who they used to work with all the time.”
Conter indicated that requests to private information may be more easily granted in the context of the cultural shift brought on by the fear of terrorism that has spread over the past decade.
“What I think we are seeing is that in a post-9/11 world, police forces throughout the western world have generally been granted access to information and data that is theoretically protected by law,” he said.
D’Astous pointed out that “theoretically protected” and “legally protected” are two very different concepts. He argued that the Wigmore test, the only piece of legal precedent that serves as protection for reporter-source confidentiality, does not go far enough.
“It’s not a very stringent test,” he said. “It basically asks: Is it more important for us to know the truth? Or to protect the journalistic source? In criminal investigations, it will probably lead to the journalist having to reveal their source.”
Unlike the protection of police sources, D’Astous said, “There’s very little privilege granted to journalistic informants.”
Both D’Astous and Conter agreed that the Supreme Court’s inability to effectively direct the lower courts could mean that legislators need to step in and codify reporter-source privilege.
“If judges actually read the decisions, we wouldn’t be in this mess; they would rule accordingly,” Conter said. “Perhaps, since they don’t, we need legislation at the federal level and possibly also at the provincial level, to ensure that this kind of thing doesn’t happen again.”
Immediately after La Presse made its original report, the Quebec Liberals announced that an inquiry with commission powers will commit to a thorough investigation into the Lagacé scandal. Journalists across the province will be watching intently, including Lagacé himself, who feels emboldened by his experience.
“I hate it that they spied on me,” he said. “I think we have to be much more combative as a profession.”
Correction: The quote by Huge D’Astous, “There’s very little privilege granted to journalistic informants,” was incorrectly cited in an earlier version of this article, published Dec. 1. He revised his previous statement, “There’s no generic or specific privilege to journalistic informants. None.”
The Wigmore Test, as referenced in the 2010 Globe and Mail v. Canada (Attorney General) requires four specific features.
- That the relationship between the reporter and source is founded on an understanding of the protection of the source’s identity
- Anonymity needs to be essential to the relationship of reporter and source
- The relationship should be fostered for the benefit of the public
- The protection of the source’s information must serve the public interest more than the consequences of sharing said information
In order to protect their source’s confidentiality, a journalist must be able to answer yes to all four questions in a judicial proceeding that may attempt to reveal their source’s information. Ultimately, it is up to the judge to weigh potential outcomes and determine whether or not to grant access.
Legal Protection from Whistleblowers
The four-year Charbonneau Commission, an inquiry into potential corruption in the management of public construction contracts, made 60 recommendations, one of which called for a law that would grant better protection to whistleblowers.
“Whistleblowing must not be seen as an act of betrayal, but as an act of loyalty to society,” France Charbonneau said in her 2015 address to the National Assembly.
Right now, Bill 87, known as the Act to facilitate the disclosure of wrongdoing within public bodies, is under review in Quebec. If passed, the law would protect public sector workers who speak up about wrongdoing inside government agencies from reprisals, such as job loss or demotion. It would also protect their identity and job title.
However, Quebec Federation of Journalists head Stephane Giroux feels that the Bill, in its current form, does not live up to the spirit of the commission’s recommendation.
“[It] does not satisfy the FPJQ because it provides absolutely zero protection to those going to the press,” he said. “We think Bill 87 as it stands right now totally defeats the purpose, and we are going to lobby for major changes [to it].”
In order to be protected by Bill 87 in its current form, whistleblowers would have to bring their information to an ombudsman or to a designated official within a government department or agency.