Alexandra Ellerbeck is North America program co-ordinator for the Committee to Protect Journalists.
While more and more leaders around the world publicly spar – or worse – with the press, Canada’s leaders routinely extol the values of a free media. Foreign Minister Chrystia Freeland, a former journalist, condemns the imprisonment of journalists in Myanmar and Russia. The Canadian press wins international awards, and it is a Canadian non-profit that is tracking the technology that countries like Saudi Arabia used to spy on a colleague of Jamal Khashoggi, the journalist murdered in Saudi Arabia’s Turkish consulate. While its position varies year to year, Canada ranks highly in surveys of press freedom.
But despite Canada’s leadership on this issue, it is not perfect. In 2016, Canadian reporter Justin Brake was charged civilly and criminally after covering a protest in Labrador. The same year, it was revealed that police in Quebec had surveilled the phone records of nearly a dozen journalists to identify their sources. But even in the latter case, we saw the type of course-correction that you would hope for in a democratic country: the passage in 2017 of a shield law to protect reporters and a commission to investigate the surveillance in Quebec.
This is why the Supreme Court of Canada’s recent decision on the issue is so disappointing. On Nov. 30, the Court upheld a production order against Vice Media reporter Ben Makuch in a 9-0 decision, forcing him to hand over sensitive communication with a source. The RCMP ordered Mr. Makuch to turn in records of communications that he had with Farah Shirdon, a Canadian citizen who police allege travelled to Syria to join the militant group Islamic State.
In its decision, the Court gave significant weight to the fact that the source in this case was not anonymous and the conversations were off the record; because the case began before the shield law came into effect, it wouldn’t affect future rulings on confidential sources. Still, there are serious consequences for the media. Journalists cultivate sources – anonymous and named – with whistleblowers, criminal groups, foreign officials or terrorist networks. Many of these individuals would not talk to the police. And they will not talk to journalists if the media is seen as an investigative arm of authority. “My sources … don’t expect that I’m going to turn over every single piece to the authorities,” Mr. Makuch told the Committee to Protect Journalists (CPJ) last year.
This issue of journalistic independence is not an abstract concept. We see it when police subpoena unaired video footage taken by television reporters covering protests. While this footage is not “off the record,” I still remember talking to journalists covering Standing Rock protests in North Dakota who had their equipment seized by police. They were terrified that if police used their video footage, it would undermine their sources and put them in a volatile situation. The need for journalistic independence is why we condemn the impersonation of journalists by intelligence or law-enforcement agents. Of course, journalistic material could be a useful tool in an investigation, and posing as a nosy reporter is a clever cover. But these practices have real consequences: They chill sources and they put journalists in danger.
When it comes to the Vice Media case, it’s hard to see why this potential blow to press freedoms was worth pursuing for the authorities. This was not a case of a ticking bomb: Canadian authorities already had a significant amount of evidence, and Mr. Shirdon was not in the country. In fact, the U.S. military claims that he was killed in an airstrike in 2015.
As part of a coalition of a dozen international media and press-freedom groups, CPJ argued that Canada’s legal test for weighing the state’s interest against that of the media’s is behind international standards. Notwithstanding a couple of potentially positive clarifications in the Supreme Court’s ruling – like highlighting the importance of giving media outlets a heads-up when authorities apply for production orders – the decision against Vice Media shows that’s where the court remains.
More journalists are imprisoned than ever around the globe. In Europe, investigative journalists have been murdered. U.S. President Donald Trump continues to lambaste and spread lies about the press, and American reporters are ramping up security and reporting threats in the wake of the June shooting in a newsroom in Annapolis, Md. The current U.S. administration seems intent on letting the Saudi government get away with murdering a journalist.
Never has it been more important for Canada to be a leader in press freedom, so talk is not enough: Canada must take concrete steps to protect the media. But decisions like this undermine this role. They put Canada behind other countries, when instead it should – and must – be a global leader.
Editor’s note: (Dec. 6, 2018) A earlier version of this article said Justin Brake was arrested at a protest in 2017. He was not arrested but was charged civilly and criminally after the protest, which took place in 2016.