It’s been a frantic week in Québec’s media community. The City of Montreal Police Service (SPVM) acknowledged Monday it had tracked La Presse reporter Patrick Lagacé’s phone calls during an investigation into one of its own officers. It later emerged that at least six other reporters had their calls tracked by the SPVM or Québec’s provincial police force, the Sûreté du Québec. None of the reporters were suspected of any crime; the surveillance appeared to be part of an internal crackdown on what SPVM chief Philippe Pichet has called “leak culture.”
Pichet has defended his department’s actions, saying officers acted within the rules. Officers appear to have followed the letter of the law, and according to a growing chorus of lawyers and elected officials, that’s precisely the problem.
In the Lagacé case, officers received 24 separate warrants which allowed them to track the reporter’s incoming and outgoing calls, as well as his phone’s location, for seven months. “In principle, the police need to show evidence when applying for a warrant,” explains Pierre Trudel, a professor at the Université de Montréal law school, who specializes in media law. “They need to convince a judge that the information they’re looking for will allow them to prove whether a crime was committed. They also need to prove there’s no other way to get the information they need. In this case, it seems like the judge was exceptionally easily convinced.”
“It was clear that the police did get the required permission, and incorrectly applying the law isn’t the same as breaking it,” said human rights lawyer Julius Grey, who along with 13 other lawyers signed an open letter denouncing the surveillance.
Simon Jolin-Barrette, a lawyer and the justice critic for the Coalition Avenir Québec, a centre-right opposition party in Québec’s National Assembly, is among those calling for new laws to protect journalists from surveillance. He compares the Lagacé case to the seizure of the computer of Journal de Montréal reporter Michaël Nguyen earlier this year by SQ officers investigating a judge’s behaviour. A rival newspaper later found that all the information Nguyen had obtained was accessible via Google. “The evidence backing up the [Nguyen] search was very thin,” Jolin-Barrette said. “Information obtained via that sort of exceptional warrant should not be part of a fishing expedition and not be used to protect an organization from itself.”
“These standards have been established by a series of Supreme Court cases, and in theory, they should have the force of law in every province,” Jolin-Barrette said. “We’re looking into modifying the existing provincial law around search warrants to codify this, although we want to start with a transparent public inquiry and hear from journalists and legal experts.”
Stéphane Beaulac, constitutional law professor at the Université de Montréal, questioned the constitutionality of the ease to which police were able to monitor journalists, in a New York Times report. “It is extremely unlikely that they warranted such a broad scope,” he told the Times about warrants. “This seems to blatantly be a misapplication of the system.”
The official opposition Parti Québécois want the law to clearly define these boundaries, with justice critic Véronique Hivon calling for immediate legislation. “It’s high time we had a law that clearly affirmed the protection of journalists’ sources and the criteria that need to be respected before making the rare decision to bypass that principle,” Hivon said.
Québec’s governing Liberal Party has shied away from calling for new legislation but announced in a press release that an “independent expert committee” presided by a retired judge and including experts with backgrounds in journalism and law enforcement, would investigate police surveillance of journalists. Couillard also issued a directive stating that further requests for warrants involving phone tracking would have to be approved by the province’s director of criminal and penal prosecution.
If Québec passes legislation specifically protecting journalists and their sources, it would go further than existing federal law. “Journalists have no specific privileges under Canadian law,” said Anna Keller, professor of media law at Carleton University. “In one sense that works in journalists’ favour, because you don’t need a licence to practice journalism. But it also means that unfortunately the journalist-source relationship doesn’t have special protections. Our system relies a lot on trusting officials to follow internal rules.”
In the Lagacé case, Grey said, “the police have shown they cannot be trusted.”
“I’m hoping a law will be passed, because what the police have done has been nearly universally condemned. I’m also worried about the police using technology to hack into phones without a warrant. They couldn’t use that evidence in court, but they could use it as background information to pursue other evidence. We need a new law, but we also need a new culture where spying on journalists is considered so reprehensible that it won’t be done.”
At the federal level, Bloc Québécois MP Rhéal Fortin is calling on MPs to resurrect a 2007 bill calling for increased whistleblower protections. “We want to amend the Evidence Act, which is part of the Criminal Code, to specify that when a law enforcement body wants to access a journalist’s communications, they need to show that the information is in the public interest, not being used to settle an internal dispute, and that every effort has been made to find the information some other way. They should also have to take into account the consequences for the source,” Fortin said.
“Both the provincial and federal governments need to do their jobs,” sums up Trudel, the Université de Montréal professor. “We need to specify the very rare situations when the police could spy on journalists. If we leave the door wide open, the profession of investigative journalism is in danger, because whistleblowers will no longer speak to journalists.”
Since the extent of the SPVM’s surveillance of Patrick Lagacé came to light last week, the story has made headlines around the world. “Are you a journalist? Do you think that police spying on you to identify your sources is a hypothetical? This is today,” tweeted whistleblower and press freedom advocate Edward Snowden. In a live videoconference at McGill University on Wednesday night, planned months beforehand, Snowden called the surveillance “a radical attack on freedom of the press.”
Are you a journalist? The police spying on you specifically to ID your sources isn't a hypothetical. This is today. https://t.co/6JtOIb7Q4n pic.twitter.com/p4pURXH4nU
— Edward Snowden (@Snowden) October 31, 2016
“The local police can go to a justice of the peace and they will happily say, okay, unlock the GPS on the guy’s phone, find out anyone he met with and who he called,” Snowden said. “Can we at least debate in a reasoned way the idea that law is beginning to fade as a guarantor of our rights? We the public know almost nothing about how [law enforcement] operate, and that inverts the dynamic of private citizens and public officials into a brave new world of private officials and public citizens.”