On behalf of the Canadian Media Coalition: Jennifer McGuire and Michel Cormier

June 19, 2017, Ottawa

Monsieur Chair and Members of the Committee:

Good afternoon.

My name is Jennifer McGuire and I’m the General Manager and Editor in Chief for CBC news. I wish to thank you all for this opportunity to address this important topic once again.

I want to stress right up front how important Bill S-231 is. I can say on behalf of our coalition of media organizations that speedy passage and implementation of S-231 would be a great service to the country.

Why do I say this? Because investigative journalism is a vital component of a healthy democracy. It shines a light on issues that matter, whether it’s sexual assaults on Canadian campuses, questionable off-shore tax havens, or unethical real estate practices. The sort of stories that pave the way for legislators to make better public policy.

This journalism frequently relies on the people who are brave enough to share stories otherwise untold - sources and especially confidential sources. It also relies on journalists’ ability to protect those sources. Today in Canada, that ability is undermined because it is too easy for police to obtain a warrant allowing them to conduct surveillance missions on reporters.

Late last year, we learned that some of Radio-Canada’s top investigative journalists were being spied upon by the Sûreté du Québec. Five years of their phone records were asked for, some of the journalists had their location tracked, all of them had their freedoms infringed upon. All because police wanted to know who their sources were.

It’s bad enough that these journalists were spied upon by the authorities. But consider the impact this news had on their ability to do their jobs. What confidential source would share information knowing they could not rely on any protection a journalist might offer? What whistleblower might decide it’s better to stay quiet rather than risk being swept up in a police investigation? By scaring confidential sources into silence, we will never know how many cases of wrongdoing remain secret, and how many cover-ups were made possible.

Right now, the bar for obtaining warrants to conduct this type of surveillance is far too low. As just one example, dramatic testimony in recent weeks at the Chamberland Commission in Quebec has shown us that even baseless sexual innuendo can be enough.

Last Thursday, Radio-Canada’s Marie-Maude Denis testified that one of the justifications made by police for spying on her was that she had an intimate relationship with another police officer who was one of the targets of the investigation.

This was completely false and based on no credible information. That police made this allegation before a justice of the peace was shameful. That it was persuasive is, frankly, depressing. The clear implication was that successful women in journalism use sex as a way to get information. If you need proof that the bar for obtaining a warrant needs to be higher, look no further.

Let me be clear: we realize that there must be exceptions. When a journalist is legitimately suspected of a crime, police may well have a good reason to track their activities. If it can be shown that there is no link between the investigation and the journalistic activities, then the suspect should not be able to invoke their profession as a shield. But, as soon as the nature of the investigation has a link with the practice of journalism, then the protections of S-231 should apply in full force. That decision rests properly with a superior court judge.

My name is Michel Cormier and I’m Executive Director of News and Current Affairs for CBC/Radio-Canada French Services.

CBC/Radio-Canada and the Canadian Media Coalition appreciate the Government’s support for the bill being shepherded by Senator Claude Carignan.

Confidential sources, whom this bill is designed to protect, are essential to investigative journalism. No one disputes this fact – it was recognized a number of years ago by the Supreme Court of Canada. But the past few months have shown us that the existing police and judicial system falls short of providing adequate protection for journalistic sources.

Unwarranted spying

Over the last few weeks, the Chamberland Commission hearings have given us an opportunity to hear what motivated police officers to obtain the telephone records of several journalists, including three of Radio-Canada’s most distinguished investigative reporters. Their grounds were inadequate and their methods were doomed to failure.

In our opinion, the testimony of certain police officers involved in monitoring Radio-Canada journalists demonstrated to what extent our reporters and their sources were victims of abuse of authority. It has been acknowledged that the order issued by a presiding justice of the peace granting access to five years’ worth of records of journalists’ incoming and outgoing telephone calls, as well as, in two cases, their physical locations at the time of the calls, proved nothing regarding the crime under investigation – in this case, a potential leak of wiretapping information. Yet it substantially jeopardized the identity of the journalists’ sources.

In our view, this was clear from the very start. As a number of police officers have testified, far too many people had access to the wiretaps, and simple telephone contact between police officers and journalists proves nothing. So, why did they request access to five years of call logs? Why did they ask to track the reporters for those five years? These questions could have been asked by the presiding justice of the peace. Indeed, they should have been asked, but clearly weren’t, as the orders were issued without further proceedings.

I would ask you to reflect for a few seconds on what that means. The police officers gained access to call logs that could reveal the identity of confidential sources, although anyone could see, right from the outset, that the logs would serve no purpose. Breaching the confidentiality of journalists’ sources through these court orders was not only completely pointless, but also a serious abuse of authority.

The police officers in question were or should have been aware of this fact before requesting the first of the court orders, but the system completely failed to stop them.

According to Reporters Without Borders, Canada did not rank among the top 20 countries for defending freedom of the press this year. Several other democracies and even some U.S. states have laws protecting journalistic sources.

This bill must be adopted to change things – to ensure that confidential sources will be protected and that never again will a police force in Canada be authorized to spy on journalists without regard for their sources and the crucial role they play in a democracy.

However, the Coalition would like to stress that one of the proposed amendments creates a loophole in the protection of confidential sources. The new subsection 4.1 would exempt any order from the Act when it is alleged that a journalist has committed an infraction. If this amendment is adopted, it would suffice for investigators to claim that they suspect a journalist of having worked with a whistleblower for all protections afforded under S-231 to be completed voided and for sources’ identities to be revealed.

This loophole would encourage unjustified allegations against journalists, whereas no investigations involving journalists in the past have ever led to charges being laid against them.
Our proposal provides what we feel is a fair solution to this problem. It ensures that, in the case of journalistic work, the judge applies the test outlined in S-231 before approving the warrant, while exempting investigations into common law crimes from this requirement.

We are very satisfied with this bill. Not only will it put an end to abuses of authority and restore journalistic sources’ trust in the system; it will allow Canada to join those jurisdictions that legally protect all of these brave people who come forward to expose unacceptable situations and whose actions contribute to a freer, more democratic society.

That said, we ask that you pay special attention to the suggestions detailed in our factum.

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