As Canadian Police Demand Journalists' Material, the Law Offers Limited Protection

More than five years after a landmark case decided that Canadian journalists have no blanket protections from having police seize their notes to protect their work or their confidential sources, little movement has been made to ensure that media can adequately protect their informants, notes, or confidential information.

While the outgoing Conservative government maintained an animus towards the domestic media, the incoming Liberals have struck a more cooperative tone with the Canadian press. But, until this point, there still has been no mention — from any major political party — about giving journalists protections from police investigations and court subpoenas..

The issue has become increasingly relevant in recent months, as investigators around the world have begun knocking on reporters' doors to get information about Westerners heading to the Islamic State (IS) to fight on behalf of the terrorist organization.

In the United Kingdom, police used that country's Terrorism Act to seize BBC journalist Secunder Kermani's laptop after he produced a series of reports on British-born militants.

In February, the Royal Canadian Mounted Police (RCMP) served VICE offices in Toronto and Montreal with production orders for "any notes and all records of communications" between reporter Ben Makuch and Canadian-born Mohamed Shirdon, who claims to be a member of IS.

While VICE News did not turn over any documents — and is fighting the order in court — the RCMP eventually made a high-profile, mid-election announcement that it would be charging Shirdon with various terrorism offences in absentia. The materials the RCMP are seeking from VICE do not involve a confidential source.

Related: VICE News Battles Canadian Police Over Right to Protect Journalist's Material

Worldwide, most Western nations have, to varying degrees, protections that would prevent, or at least discourage, the police from serving journalists with production orders or search warrants.

In 48 states, American journalists enjoy differing degrees of privilege that protects them from having to out confidential sources and information. Attempts to provide a federal 'shield law' — which codifies that legal privilege — have, thus far, failed.

The UK has laws that prevent the court system from forcing journalists to disclose their confidential sources, unless it deems it necessary for public safety. But, as the Independent newspaper noted regarding the seizure of Kermani's laptop, that defense "carries little weight with Terrorism Act orders."

New Zealand recently determined that journalists, even bloggers, are protected by a national shield law. Australian law looks similar, although protections can vary from province-to-province.

In Canada, no such laws exist.

That became very clear in 2010, when the Supreme Court of Canada concluded, in a pair of decisions, that journalists in Canada do not have those broad protections. Instead, they have to prove it to the court on a case-by-case basis.

One case involved reporter Andrew McIntosh, working for the National Post, who broke a story that implicated then-Prime Minister Jean Chretien in a funding scandal concerning a hotel in which he had a financial stake. The second case centered around the Globe and Mail's reporting on the sponsorship scandal, in which journalist Daniel Leblanc raised the possibility that federal money was disproportionately helping companies linked to the then-governing Liberal Party.

Both reporters used sources in their reporting who only spoke on the condition that their identity would be kept confidential. In both cases, for differing reasons, the courts tried to pierce the reporters' privilege.

Those decisions clearly defined the law in Canada: reporters do not enjoy blanket protections, and instead must defend their privilege on a case-by-case basis.

"Following the National Post and Globe and Mail decisions, Canadian law inadequately protects the journalist-source relationship," says Jamie Cameron, a professor at Osgoode Law School. "In my view there's a real need for statutory provisions that provide that legal protection."

Cameron intervened before the Supreme Court in both cases on behalf of the Canadian Civil Liberties Association, and specializes on freedom of the press.

The Supreme Court, in the Globe and Mail case, wrote that "the burden of persuasion remains on the media to show that the public interest in protecting a secret source outweighs the public interest in criminal investigations."

In other words: police in Canada can issue production orders and search warrants to media organizations in order to discover their confidential sources, and it's up to the reporters to explain why unmasking their contacts would be bad.

While it does not appear to be common for police to try and seize journalists' notes and materials, it's not unprecedented. A 2014 case in Newfoundland saw local police demand one newspaper reporter's interview tapes.

Related: Whistleblowers in Peril as Government Policies Shaft Press Freedoms

"Police seizures of notes and tapes compiled by reporters is a practice which must be stopped," said the Canadian Association of Journalists in a statement regarding the case.

"This kind of thing is increasingly becoming a problem, as police use journalists to do their investigative work for them," the association's vice chairman Charles Bury said in the statement. "They should spend less time going after journalists and more time doing what they're supposed to do."

Cameron says that a law protecting journalists' confidential sources from the get-go would send a signal to the courts that the police must prove that the benefit of breaking that confidentiality is worth impugning the freedom of the press. She says she prefers that "upfront protection.

"I am very much of the view that the burden should be on anyone, including the police, who want to violate that confidential relationship," she says.

There has been some effort to do exactly that.

Serge Ménard, a member of parliament with the Bloc Quebecois, introduced a bill in 2007 that would update the law to add that "no journalist shall be compelled to disclose the source of any information that the journalist has gathered, written, produced or disseminated for the public through any media or to disclose any information or record that could identify the source."

While the bill added exemptions where the journalists' sources could be disclosed, it also added procedures to ensure that as few eyes as possible would see the sensitive information.

The bill passed its first vote, but never became law.

Follow Justin Ling on Twitter: @justin_ling

Image via Flickr user marke1996