Justin Safayeni and Andrea Gonsalves practice media, defamation and constitutional law at Stockwoods LLP, a litigation firm in Toronto
The past year has seen an unprecedented rise in police investigation techniques targeting journalists in Canada. Most of the resulting outrage has focused on the aggressive conduct of police in these cases. Less attention has been paid to the fact that their activities were carried out with the blessing of the courts.
This troubling trend has to stop.
The latest revelations came last week, when it was reported that various police forces in Quebec had tracked the phones of at least seven journalists from three different news organizations. In the case of La Presse newspaper columnist Patrick Lagacé, Montreal police obtained at least 24 surveillance warrants from a justice of the peace, allowing them to monitor incoming and outgoing call numbers, as well as the physical location of Mr. Lagacé's phone. These extraordinary steps were apparently taken to investigate whether officers on the force were leaking information to Mr. Lagacé.
The fact that courts have authorized such sweeping and intrusive measures raises serious questions – both about the degree of judicial scrutiny being applied to the police's requests, and about the process followed in considering them.
Courts must be vigilant when asked to make orders targeting material in the hands of journalists. In the 1991 case of CBC v, Lessard, the Supreme Court of Canada emphasized that judges must give "careful consideration" to any such requests by law enforcement, given the importance of the media in a democratic society. The Supreme Court instructed judges to "ensure that a delicate balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination."
As part of this balance, courts must recognize that orders targeting the media can have a serious chilling effect on news gathering. Sources will be less willing to speak with journalists if they fear that the information they share will readily make its way into the hands of law enforcement. In the Lessard case, Justice La Forest observed that "the fear that the police can easily gain access to a reporter's notes could well hamper the ability of the press to gather information."
Those words were written a quarter century ago – but apply with equal force when it comes to police accessing a journalist's iPhone today.
Despite its importance, the chilling effect often gets little or no attention when courts are asked to authorize police conduct targeting journalists. This has to change. One cannot properly strike a "delicate balance" without including the chilling effect on one end of the scale.
Part of the problem may lie in the framework governing how these orders are made. Police requests are normally heard ex parte – meaning that the police are the only ones appearing before the court, and the target of the order receives no notice of the request. With nobody before the court to represent the interests of the media, it is perhaps little wonder that the chilling effect receives such scant attention.
Such one-sided hearings should not be the default where the media is involved. Even if notice to the target of the order is impractical, courts could appoint an advocate to represent the interests of the media, and to ensure that the relevant evidence and legal arguments are fully canvassed before any order is made.
After an order is made, it can be challenged in court. In most cases, however, the die is already cast by this point. As a practical matter, for wiretap orders or similar authorizations allowing for the collection of phone data, the intrusion will have already occurred (since journalists rarely find out about these orders in advance of their execution). And even with the benefit of hearing the media's evidence or arguments for the first time, a reviewing court will uphold any order that "could have" been made by the original court. This deferential standard sets an extremely high bar for journalists to meet if they are to succeed in overturning the order.
Let's be clear: journalists are not immune from police powers, nor should they be. But the role of the media in our democracy raises unique concerns and is deserving of special protection. It is the job of the courts – not the police – to ensure this occurs.
At the very least, that requires considering the chilling effect of the requested order, hearing from both sides, and refusing police requests that unduly interfere with the ability of journalists to do their work.