Journalist shield law could soon become reality in Canada

The bill would make it harder for police and other law enforcement or security agencies to spy on journalists’ communications or to seize documents that could reveal their sources. It would also make it harder for the cops to use whatever information is seized or captured by warranted surveillance.

The Journalistic Sources Protection Act, S-231, was introduced by Sen. Claude Carignan in November after revelations that Montreal police spied on the communications of 10 journalists in Quebec in recent years — a scandal that has prompted a public inquiry in the province.

In a major move that could see a new law adopted within a few months, the Liberals will propose a handful of technical amendments to address “legal and policy concerns” with the bill as drafted — changes that a senior government official characterized as “reasonable” and that Carignan said he supports.

The Conservative senator was privately consulted by justice officials on the changes the government will advance and believes they improve the bill because they would prevent “unforeseen effects.”

The government official, who was not authorized to speak on the record, said the amendments are intended to ensure that journalistic source protections would not interfere with the ability of law enforcement or security agencies to act in urgent or emergency situations “particularly in a national security context.”

The amendments would also ensure that the protection extends to the sources, not to a reporter as an individual if he or she was the object of a criminal investigation. “Without that amendment there would be a risk that the search warrant against journalists who themselves commit crimes would be improperly invalidated,” said the source.

“Freedom of the press is a fundamental value and is something we wish to support and strengthen in any possible way . . . and this bill will support the authority and the ability of journalists to do your work,” the official said.

Last month, Prime Minister Justin Trudeau signalled he supported the need for journalists to protect their sources.

It’s unusual for governments to back private member’s bills, let alone a senator’s bill and an opposition one at that.

“That’s a rare moment in a parliamentarian’s life, and the matter is very important — to promote democracy and to promote free press,” said Carignan. His bill creates a class privilege that Carignan said could ultimately bolster Canadians’ confidence in institutions, politics and judges.

“Sometimes the only way people can denounce an injustice is to go to the media, and if we don’t have good protection, we will cut off sources. If people don’t have confidence also in journalists, the implication for democracy is very bad.”

“This kind of bill is long overdue in Canada,” said longtime media lawyer Paul Schabas who has often represented the Star. Effective journalistic shield laws have been in place in most of the United States and the United Kingdom for many years, he noted.

The Supreme Court of Canada agreed in a 2010 ruling that investigative journalism is in the public interest and that confidential sources are key to that work. But the top court said journalists’ right to shield a source’s identity must be balanced on a case-by-case basis with competing interests.

That ruling didn’t prevent police in Quebec from spying on cellphone communications of top investigative journalists to find the source of embarrassing leaks.

In another disturbing case, the RCMP got a production order to seize the communications between Vice News journalist Ben Makuch and Farah Shirdon, a Canadian suspected of fighting abroad with Daesh, also known as ISIS. Vice is challenging the order in court.

Under S-231, police would gain access to journalists’ source material only as a last resort, if there were no alternative means to obtain the information.

It would amend the Criminal Code and the Canada Evidence Act to provide that a judge could only approve a search warrant or production order after a closed hearing in which police or the state agency seeking the information would have to meet two tests: that there is no other “reasonable” means to obtain the information; and the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.

Even then, the information that could reveal a journalist’s source would remained sealed. Reporters and their news organizations would be notified and given the right to appeal any move by police to access information gathered from such investigations. A police officer could not examine, reproduce or make copies of a document obtained under a search warrant unless a judge was satisfied the same conditions were met — that there is no other way to obtain the information and the administration of justice outweighs the journalist’s right to claim confidentiality.

Finally, the bill would add an amendment to the Criminal Code so that lower-level justices of the peace would not be able to issue search warrants relating to journalists — as happened in Quebec. Only a judge of a superior court of criminal jurisdiction could issue a search warrant relating to a journalist, after giving serious consideration to the journalistic and public interests at play.

Schabas said to have those rights entrenched in a federal law sends an important signal.

“It sends a stronger message than we’ve received from the courts . . . because too often journalists and media organizations are the subjects of warrants and subpoenas that they shouldn’t be.”

The Canadian government’s willingness to enshrine such protections stands in sharp contrast to the approach of U.S. President Donald Trump toward journalists and whistleblowers, who have disclosed damning details about Trump’s campaign and his administration’s ties to Russia.

“We have to protect journalists,” said Schabas. “The president of the United States isn’t interested in protecting journalists because journalists do a good job. That’s exactly why we have to protect journalists from the abuse of power that can otherwise be visited upon them.”

Carignan said his consultations suggest the Conservatives, NDP and BQ will support the bill in the Commons.

Editors from major news organizations across Canada, including the Toronto Star, testified in February and urged Parliament to enact legal protections for reporters and the whistleblowers who turn to them to disclose wrongdoing.

“It’s of particular concern to me that Canada is one of a few . . . western democracies without some form of journalist shield law. It’s a very tiny club, and we should not be a member,” Michael Cooke, editor of the Toronto Star, said at the time.