Law Times

March 20, 2017

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Page 4 March 20, 2017 • Law TiMes www.lawtimesnews.com Bill to protect media sources sees amendments BY DALE SMITH For Law Times A bill designed to protect journalistic sources has seen some amend- ments at the Senate's legal and constitutional affairs committee, which includes a new provision to require that a special advocate be consulted before judges issue warrants for journalists. Lawyers who act on behalf of clients in the media say the bill is a good start, but more protec- tions are still needed under the law. Iain MacKinnon, partner with Linden & Associates Bar- risters and Solicitors in Toronto, says the bill is long overdue to protect journalists' sources, but it could go even further. MacKinnon is currently de- fending VICE journalist Ben Makuch, who wrote an article on an accused terrorist and was ordered to turn over his back- ground materials to the RCMP. "[The bill is] limited to only confidential sources as opposed to work product, notes, outtakes in the case of TV that may also be confidential and proprietary and shouldn't be disclosed," says MacKinnon. "Over 40 states in the U.S. have some type of shield law that offers some type of protection. Some of the shield laws are restricted to confidential sources like this one, while others offer broader protec- tion like a journalist's notes or in- terview transcripts or tapes." Bill S-231, currently awaiting report stage debate in the Sen- ate, seeks to create a definition of journalist and journalistic source for use in legal circumstances. Lawyers who protect journal- ists would be impacted by the bill, if passed, because it ensures that only Superior Court judges can issue warrants against jour- nalists, and it shifts the burden of proof so that the party seeking disclosure must prove why they need to compel the information from a journalist, instead of the current laws, where journalists must prove why their sources should be protected. Conservative Senator Claude Carignan, the bill's sponsor and counsel with Dufresne Hébert Comeau Avocats in Montreal, said he was spurred to draft the bill in light of revelations that Montreal police were spying on journalists to discover their sources, as well as revelations that the RCMP had also surveilled journalist Joël-Denis Bellavance, saying that it was happening too frequent for it to be an accident and threatening the free press. "My first draft was to have a definition that could include blogs and students, but at the end of the day, it's very difficult for police to know exactly when they have to go to a judge and have this special procedure if it's a media issue," says Carignan. "The more important change is the possibility for a judge to ask for an amicus curiae to rep- resent the media. "When you have a warrant, it's without the presence of the journalist, so it's to give the judge another point of view to protect the free press." MacKinnon says part of the problem is that justices of the peace, who are typically the ones issuing search warrants and pro- duction orders, have not been considering the factors laid out by the Supreme Court of Cana- da in Canadian Broadcasting Corp. v. Lessard in 1991. In the case, the SCC found that when it comes to issuing warrants, the media was entitled to special considerations because of its importance in a democratic society, and it laid out nine fac- tors that should be considered before warrants could be issued. "They're just rubber-stamp- ing these requests for search war- rants or production orders by police forces," says MacKinnon. "Since 2013, the justices of the peace in Montreal have ap- proved between 98.3 and 99.2 per cent of applications pre- sented by the SPVM [Montreal police force]. "That's against journalists and media outlets. That clearly shows that JPs are not fulfilling their roles as gatekeepers of the media's Charter rights." MacKinnon adds that if S-231 already was law, it still wouldn't apply to his current VICE case because the bill doesn't protect other work products. MacKinnon says that the provision for a special advo- cate dates back to suggestions made by the Supreme Court of Canada in R. v. National Post in 2010, where it said that the media should have the opportu- nity to put forward its case at the earliest opportunity, but it also noted that the timing was at the discretion of the judge issuing the warrant or production order. The advocates would also be a compromise where the police are concerned that the media would destroy or hide the data if tipped off. "The special advocate is a pret- ty common-sense, logical option if the judge is concerned about understanding and appreciating the journalist's rights in protect- ing their source in any particular circumstance," says MacKin- non. "It has to be a balancing test, but if you're only listening to the Crown or the cops, what are they balancing it against?" It was also suggested at com- mittee that a special advocate could be equated to similar ones employed by courts when it comes to issuing security certifi- cates. However, Jamie Cameron, law professor at Osgoode Hall at York University in Toronto, says having a special advocate tasked to deal with issues concerning media may bring its own issues. "I'm not sure that the analogy is a perfect one; however, it was attractive to the committee be- cause the special advocate would add a level of protection which may well have seemed advisable following the revelations from Quebec," says Cameron. Cameron served as counsel for the Canadian Civil Liber- ties Association at the Supreme Court of Canada in both R. v. National Post and Globe and Mail v. Canada (Attorney General) in 2010. "I see [special advocates] as a response to the lack of process surrounding the warrants and orders that were issued in Que- bec," she says. "In my view, the court's guidelines were not protective enough, and personally, I think that legislative guidelines are much more preferable to the guidelines that were set down by the Supreme Court, and indeed, [Justice Beverley McLachlin], as she then was, dissented in 1991. "The other members of the court did not find a violation of s. 2(b). She was the only one who did, and she would have set more rigorous requirements for search warrants to be granted than the ones that were set by the major- ity in those cases." Cameron says the importance of protecting the role of journal- ists has not been adequately un- derstood in Canada, and it took the revelations of what has been happening with the surveillance of journalists in Quebec to get people to realize the seriousness of the threat to the independence of the press. Carignan, for one, hopes that the bill will be accept- ed by the government when it reaches the House of Commons. "It's unlikely that this initia- tive would have been taken if that had not happened," says Cameron. "I hope that this measure will be passed and that it will motivate the provinces to enact legislation of their own to protect confidential journalists' sources." LT NEWS NEWS NEWS Jamie Cameron says the importance of protecting the role of journalists has not been adequately understood in Canada. © 2017 Thomson Reuters Canada Limited 00242EH-A85034-CM Who is liable and how? A risk management resource for everything from auto racing to ziplining AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # 987798-65203 $109 Softcover approx. 320 pages February 2017 978-0-7798-7798-0 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 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New Publication Sports and Recreation Liability Law in Canada Lorne Folick, B.A. (Hons.), LL.B., Michael Libby, B.A., LL.B., and Paul Dawson, B.A., M.A., LL.B. The special advocate is a pretty common-sense, logical option if the judge is concerned about understanding and appreciating the journalist's rights in protecting their source in any particular circumstance. Iain MacKinnon

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