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Index

1,100

The length in days of the extension set by Canada’s Defence Department for responding to one particular access to information request (more than three years beyond the 30-day limit).

2 637 Dollars that people could be fined for participating in a protest that has been deemed “illegal” by Montreal police.

The number of scientists who protested in July 2012 at the “Death of Evidence” demonstration on Parliament Hill in Ottawa.

By the Numbers

Revealing stats from some of the hot-button free expression issues of 2012-13

+ 0 0 69 1,0

30

The number of months it took Saskatchewan’s Ministry of Justice to respond to a man’s request for any records about himself.

Age in years of Canada’s outdated Access to Information Act (ATIA).

2 CJFE REVIEW 2013

The number of years before Department of Fisheries and Oceans researcher Kristi Miller, who specializes in West Coast salmon, was allowed by the Canadian government to speak to the press about her research.

29 The number of U.S. states that have anti-SLAPP laws.

vs

The number of pages of governmentcollected documents about her own life, including surveillance records, that Cindy Blackstock obtained through Access to Information requests.

55 363

The number of Canadian provinces and territories that have anti-SLAPP laws.

The rank of Canada’s Access law, measured against 61 indicators, compared to the laws of 92 other countries, according to the Centre for Law and Democracy.

Number of days after the introduction of Bill C-30 that the “Spying Online Bill,” as it was nicknamed, was scrapped.


Contents

PAGE 16 FOUNDING EDITOR

Bob Carty EDITORIAL DIRECTOR

Julie Payne SENIOR EDITOR

Arnold Amber MANAGING EDITORS

Jaclyn Law and Cara Smusiak CONTRIBUTING EDITOR

Annie Game ART DIRECTION

DTF Design WRITERS

Bob Carty Daniel Henry Peter Jacobsen Amy Johnson Normand Landry Anita Mielewczyk Radostina Pavlova Paula Todd Nadine Touma Laura Tribe Phil Tunley Heidi Turner Mary Agnes Welch

PAGE 10

PHOTO EDITOR

David Lee

PAGE 38

LAWYERS

PAGE 34

Brydie Bethell John Norris Paul Jonathan Saguil Phil Tunley FACTCHECKERS

Amber Garratt Amy Johnson Kate McCullough ADDITIONAL THANKS

■ Grant Buckler ■ Canadian Committee for World Press Freedom (CCWPF) ■ The Canadian Press ■ Cinders McLeod ■ IFEX ■ Paul Knox ■ Toronto Star ■ Laurent Walter ■ World Association of Newspapers and News Publishers (WAN-IFRA)

© CJFE 2013. All rights reserved. No part of this publication may be reproduced without written permission.

2  Free Expression Index 4  CJFE’s Report Card 2012-13 6  About CJFE 8   Assessing Access 2012-13

Transparent? Opaque? Or just plain murky?

10 A Hollow Right

CJFE’s fix for Access to Information

14  Let Science Speak Government

muzzling of scientists

16  Under the Microscope

The surveillance of Cindy Blackstock

18 Small Steps Forward, Big Steps Back

Whistleblowing update

20 Blowing the Whistle on the Justice Ministry 21 Truth Is Not a Defence Why hate

speech should be dealt with by the courts

24 A Tough Bill to Swallow Bill C-461

30 Cross-Canada Free Expression Reports 32 Bill C-30: An Autopsy 34 A Step Closer to Open Justice Electronic

communications from courtrooms

36 Privacy, Free Expression and You 37 Keeping Us Connected

OpenMedia compromises the integrity of the CBC’s journalism 38 A Tangled Web Experts talk about 25 An End to Police defending digital rights Posing As Journalists?

26 The Chill of Impunity 28 Quebec Leads on Anti-SLAPP Law

42  Appendix: Major Court Decisions 2012-13 47 Thank you CJFE REVIEW 2013 3


Report Card

CJFE’s Report Card 2012-13

Free speech rights should be robust, comprehensive and equally enjoyed in all parts of Canada Parents faced with a child’s report card featuring both A’s and F’s might understandably think the teacher had mixed up the grades with those of another student. But free expression in Canada truly does span the spectrum from head of the class to flunking out. As always, we look at one of the most important components of free expression: access to information, where it is obvious that Canada is falling behind, not only when measured against the standards we set for ourselves, but also in international studies that compare us to others. The vital link between free expression and access to information was underlined this year by the information commissioner’s significant decision to investigate seven federal departments because of alleged muzzling of government scientists. But it is clear in other areas—for instance, Quebec’s anti-SLAPP law or the federal government’s creation

4 CJFE REVIEW 2013

of the Parliamentary Budget Office—that we understand what should be done. We need only look within our borders for solid examples of best practices in every area of free expression. And yet, just as one province moves forward, another one takes a step back, and we are left with a patchwork of laws and policies across the country. CJFE believes Canadians deserve the same robust

D-

rights, no matter which part of the country they live in. It only makes sense to strive for greater consistency and implement our best legislation and policies in every province and territory. After all, it was not just one province or territory that spoke out against the Internet surveillance bill, C-30—it was Canadians across the country working together. We can and should learn from each other.

ACCESS TO INFORMATION & THE FEDERAL GOVERNMENT

It’s somewhat of a balancing act this year. There are good reasons to go even lower than last year’s failing F: Canada’s increasingly archaic Access law was ranked 55th out of 93 countries with such laws; the muzzling of government scientists was so bad that Information Commissioner Suzanne Legault had to launch an investigation; the statistics on delays and redactions/exemptions got worse; and the Harper government’s culture of secrecy did not improve. But there were also a few tiny signs of hope: in 2014, the government plans to make summaries of completed requests searchable across all departments; 13 of 18 federal institutions that were performing poorly are now doing better; a pilot project will test the value of offering online requests and payment; and Legault is pushing for the reform of the 30-year-old Act. We could have given another failing grade, but rather than repeating this dismal year, we hope the federal government will heed the many voices calling for change. For more on access to information, see page 8.

C-

THE FEDERAL GOVERNMENT

Another middle-of-the-pack grade here. On the one hand, the federal government withdrew its controversial Internet surveillance bill under pressure from digital activists. A huge victory for privacy advocates in Canada, this decision could be seen as a positive step toward a government that’s willing to listen to its citizens’ concerns. For an analysis of Bill C-30, see page 32. On the other hand, there was nothing to applaud in the government’s response to Edgar Schmidt, a Justice Department lawyer who blew the whistle on his employer, claiming that it was acting unlawfully by setting the bar ridiculously low when assessing whether a piece of legislation is inconsistent with the Charter. The government suspended Schmidt without pay and attempted to have his case dismissed before even filing a defence. Whether or not Schmidt is correct in his analysis, surely the federal government’s duty is to listen to its counsel and respond if warranted. For more on whistleblowers, see page 28.


F

THE DEPARTMENT OF FISHERIES AND OCEANS (DFO)

This department deserves special mention for its zeal in muzzling scientists, controlling its message and keeping critical information away from the public. The DFO would not allow Kristi Miller, a DFO researcher and peer-reviewed author of a study about salmon diseases, to speak to the media about her work for two full years. The DFO is also one of the departments under investigation by the information commissioner for muzzling its scientists, and international researchers might pull out of collaborative research with DFO scientists because of severe limits on publication. For more on the muzzling of scientists, see page 14.

A

THE PARLIAMENTARY BUDGET OFFICE

At the opposite end of the classroom spectrum was the Parliamentary Budget Office (PBO). For the past five years, former parliamentary budget officer Kevin Page and his staff—in particular Mostafa Askari, Chris Matier and Sahir Khan—made an important contribution to the discourse in Canada about access to information, transparency and accountability of government. At a time when many who work for the government have been muzzled or forced to speak only the official line, Page made it his duty to tackle difficult and controversial issues with integrity and conviction, and to communicate to Canadians much-needed information about these issues. Unfortunately, despite the excellent work, Page’s appointment has not been renewed. Instead, the government has appointed an interim parliamentary budget officer with far less experience. Nor is there any evidence the government is willing to give the PBO the status of an independent officer of Parliament, like the auditor general, which would enable it to truly hold the government to account.

C

THE SUPREME COURT

A middling grade for a middling year for a court that appears intent on finding and sticking to the middle of the road. No new ground was broken for free expression, and in at least one major hate speech case, Saskatchewan (Human Rights Commission) v. WilliamWhatcott, the Court had a real opportunity to bring important change to how hate speech cases are adjudicated, but instead rendered a disappointingly timid decision that changed very little. A powerful institution with the opportunity to implement strong protections for free expression rights in this country, the Supreme Court is failing to live up to its potential. For more on hate speech, see page 21.

A

ANTI-SLAPP AND THE GOVERNMENT OF QUEBEC

F

ANTI-SLAPP AND THE REST OF CANADA

SLAPPs (strategic lawsuits against public participation) are used to silence dissent by consuming the energy and financial resources of critics. For instance, developers have used them to silence people objecting to a proposed project. That is what’s clear about the subject. The rest is more complex. Four years ago, the Quebec National Assembly, citing the importance of free expression, passed a law prohibiting the use of such legal manoeuvres. For that, Quebec politicians deserve a belated grade of A. Unfortunately, a study of the first two years of the new law shows that Quebec courts have been reluctant to dismiss SLAPP cases at an early stage. Meanwhile, the rest of the country lags far behind.There is no anti-SLAPP legislation in any other province or territory. Four provinces have had discussions about the problem and one, Ontario, even struck an advisory panel, which recommended the creation of legislation, but three years on there has been no progress. Legislatures in the rest of Canada receive a grade of F for their lack of action. For more about anti-SLAPP legislation, see page 28. 

KUDOS & MUZZLES

4

Kudos ■ Democracy Watch and the Environmental Law Clinic of the University of Victoria for their report Muzzling Civil Servants: A Threat to Democracy?, which asked federal Information Commissioner Suzanne Legault to look into the government’s muzzling of scientists. Legault has agreed to investigate. ■ Elizabeth Denham, British Columbia’s information and privacy commissioner, for her work in pushing the provincial government to document key decisions and keep a record of its actions, and furthermore, to make this “duty to document” a requirement through legislation. She has spoken out against the widespread practice of “oral government” and the use of private email and phones for public business.

6 Muzzles ■ The legislature of Prince Edward Island, for turning down a request for any information about its own $6-million budget, which covers spending by the offices of the speaker, government members and the opposition (the legislature is not covered by P.E.I.’s Freedom of Information and Protection of Privacy Act). Perhaps the politicians believe that their spending is a private matter. ■ Jean Charest and Quebec’s Bill 78, for a draconian approach to handling student protests over tuition increases. Stripping citizens of their rights to free assembly and free expression is no way to respond to public protests and outrage.

CJFE REVIEW 2013 5


About CJFE

WHO WE ARE

About CJFE CJFE monitors, defends and reports on free expression and access to

information in Canada and abroad. Rooted in the field of journalism, we promote a free media as essential to a fair and open society. CJFE boldly champions the free expression rights of all people, and encourages and supports individuals and groups in the protection of their own and others’ free expression rights. SUPPORT CJFE and help us defend freedom of expression and press freedom in Canada and around the world. cjfe.org

@canadaCJFE

ADVOCACY WORK IN CANADA AND INTERNATIONALLY Canadians’ free expression rights have been challenged repeatedly in Canada, from the creation of the “Truncheon Law” in Quebec last year to the everdiminishing power of our Access to Information legislation. CJFE intervenes in legal cases that we hope will lead to the creation of better laws to protect freedom of expression across the country. These include cases of access to information, defamation and libel, hate speech, police impersonating journalists and protection of sources. In February 2013, we finally heard the decision on Saskatchewan (Human Rights Commission) v.William Whatcott, a case we had intervened in. It dealt with the issue of ambiguity and application of hate speech law (for more on this case, see page 21). In addition, CJFE takes part in joint actions nationally and internationally on campaigns about free expression issues and cases.

PROGRAMS

International Freedom of Expression Exchange (IFEX) IFEX, a global network that defends and promotes freedom of expression, has member organizations in 60 countries, including CJFE in Canada. The network enhances international understanding of the issues and creates opportunities for advocacy work. IFEX advocates for the free expression rights of all, including media workers, 6 CJFE REVIEW 2013

facebook.com/canadacjfe

citizen journalists, activists, artists and scholars. CJFE manages the day-to-day operations of the network and remains an active participant in bringing a Canadian point of view to the issues. Journalists in Distress Fund CJFE provides humanitarian assistance to journalists who have been attacked or threatened because of their work. CJFE also coordinates a group of 20 international organizations that provide distress assistance to writers and journalists, in order to share information and speed up response time. Grants are provided to help journalists and their families obtain medical care, travel to safety and receive legal assistance. To date, CJFE has provided more than $215,000 in funding.

Mary Triny Mena, 201213 Journalism Fellow

Scotiabank/CJFE Journalism Fellowship CJFE partnered with Scotiabank and Massey College at the University of Toronto in 2009 to create a fellowship to promote dialogue and explore jour-

youtube.com/CJFEcanada

nalism and free expression issues in the Americas. The Fellowship is open to journalists from South America, Central America, Mexico and the Caribbean. The 2012–13 Fellow is Mary Triny Mena, an award-winning Venezuelan investigative reporter who has worked in print, television and radio. CJFE Gala: A Night to Honour Courageous Reporting Every year, the CJFE Gala: A Night to Honour Courageous Reporting serves as a forum to recognize the brave work of journalists and free expression advocates from Canada and around the world. On Dec. 5, 2012, 500 people attended the 15th CJFE Gala at The Fairmont Royal York in Toronto. The event, co-hosted by CBC foreign correspondent Nahlah Ayed and CTV National News correspondent Omar Sachedina, honoured International Press Freedom Award winners Mae Azango of Liberia and Rami Jarrah of Syria. Radio-Canada’s program Enquête won the Tara Singh Hayer Memorial Award, and media lawyer Daniel Henry was the recipient of the Vox Libera Award. The next Gala will be held on Dec. 4, 2013. The Review of Free Expression in Canada and World Press Freedom Day Throughout the year, CJFE monitors, promotes and defends the fundamental right to free expression in Canada. Building on this work, CJFE publishes


GALA PHOTO: SAMAN AGHVAMI

the Review of Free Expression in Canada, an in-depth analysis of the state of free expression. It features articles that provide context and analysis of how institutions, governmental departments and public figures have affected freedom of expression and access to information over the past year. We search out some of the leaders in this field to write insightful pieces about court cases, trends and how these issues affect Canadians. It is the only publication of this kind produced in Canada. In 2013, CJFE will mark World Press Freedom Day (May 3) with a special event to launch the Review. International Day to End Impunity, daytoendimpunity.org Marked on Nov. 23, the first annual International Day to End Impunity was held in 2011. This day recognizes individuals who have been targeted for exercising their right to freedom of expression, including Canada’s own Tara Singh Hayer. The journalist was murdered in 1998, and his killers have not been brought to justice. (For more about impunity, see page 26.) Communications and Outreach CJFE received financial support in 2012 from OMNI Television, which led to the creation of two public service announcements (PSAs). Each explains,

in 30 captivating seconds, the impact of the erosion of free expression rights on Canadians. The first PSA, created with the help of advertising agency Juniper Park, has been launched and viewed widely. It is available on CJFE’s YouTube channel in six languages. It also inspired this year’s Review cover design. We will launch the second PSA at the 2013 CJFE Gala.

CJFE.ORG In 2011, CJFE launched its new website, cjfe.org. We continue the work of building the site into the most comprehensive resource of its kind, specializing in analysis and advocacy of free expression issues in Canada. We are finding creative ways to provide context and analysis on critical free expression issues, and CJFE’s website is becoming a go-to resource for a growing audience. As part of this new approach, CJFE has created a Digital Issues Committee, which oversees CJFE’s work exploring the intersection of the digital world with free expression rights. We held a pilot online-only event on the subject of digital privacy on March 12, 2013, featuring Ann Cavoukian, information and privacy commissioner of Ontario, and Wilf Dinnick, founding editor and CEO of OpenFile, and moderated by Jesse Brown, tech blogger at macleans.ca and columnist for Toronto Life.

2012 CJFE Gala award winners and speakers

EVENTS In addition to our annual Gala, CJFE organizes and participates in conferences, film screenings, panel discussions and other events throughout the year. Past events include: ■ As part of Freedom to Read Week 2013, CJFE was involved in events including a lecture by Paul Knox, “Too Many Secrets: Why open government makes sense,” and a discussion with CJFE Board member Peter Jacobsen, “Libel and Privacy: Why you should watch what you say on the Internet.” ■ To mark the International Day to End Impunity on Nov. 23, 2012, CJFE held a screening of A Bitter Taste of Freedom, a documentary film about the life of murdered Russian journalist Anna Politkovskaya. ■ “I Write What I Think: A Conversation with Heather Mallick,” a stimulating talk and Q&A session with the Toronto Star columnist, held after CJFE’s 2012 Annual General Meeting. Information about our past and upcoming events is available at cjfe.org.

PARTNERSHIPS CJFE is fortunate to have the support of several key organizations. Their provision of pro bono services allows us to work on a level that would not be possible otherwise. Our partners include: ■ Award-winning ad agency Juniper Park, which has worked with us on numerous projects including branding and the design of CJFE’s logo, public service announcements and this year’s Review cover design. ■ The savvy public relations team at Media Profile, which helps us craft and implement communications strategies. Their work on the 2012 CJFE Gala resulted in 81 media stories. ■ Massey College, which works with us on the Scotiabank/CJFE Fellowship at Massey College and has also provided space for CJFE events. ■ CBC, CTV, The Globe and Mail, the Toronto Star, OMNI Television and many others that have provided generous support.

CJFE REVIEW 2013 7


Access to Information

Assessing Access 2012-13 Transparent? Opaque? Or just plain murky?

“O

is the most transparent government in Canadian history. There has never been a time when Canadians have had as much access to government information.” That’s what Treasury Board President Tony Clement crowed in a press release in December 2012, his response to critics of the government’s record on Access to Information (ATI). Clement, and a lot of other ministers and MPs, like to repeat it frequently. For many of us, though, it provokes chortles of disbelief. After all, isn’t this the first government ever to be found in contempt of Parliament for failing to provide information requested by the House of Commons? The government that prorogued Parliament to avoid a pesky inquiry into the torture of Afghan detainees? The administration whose access law, measured against 61 indicators and compared to the laws of 92 other countries, was ranked 55th by the Centre for Law and Democracy—just ahead of Malta and Angola? UR GOVERNMENT

APPLES AND ORANGES Well, it turns out that Minister

Clement can justify his assertions with some facts—conveniently chosen ones. The minister first points to the total number of Access requests the federal government receives (43,194 in 2011-12), a number that has been going up year by year. And it’s fair for the government to claim that part of the credit is due to its fulfilment of a 2006 election promise to increase the number of Crown corporations and entities subject to the Access law, including the CBC (for an update on the CBC and the Access to Information Act, see our article on Bill C-461 on page 24). But—and here is where a number of buts begin—that’s not the whole picture. First, the number of Access requests has been going up pretty steadily for 30 years, under Conservatives and Liberals alike. Second, the numbers could have gone up more if the Harper government had not left another 100 agencies and bodies outside the Access law. And third, the numbers that really matter are not the total requests received but the proportion that were answered on time and without redaction. This table is a sample of what the record shows: YEAR

Federal Access to Information Performance (selected years)

8 CJFE REVIEW 2013

LATE NEWS IS NO NEWS On timeliness, there has been a

steady decline in performance. The Access law says requests are supposed to be answered in 30 days. Twelve years ago, 36.8 per cent of all requests exceeded that limit; in 2012, it rose to 44.7 per cent. Put another way, the percentage of requests returned on time has dropped year by year. Such delays were identified by CJFE supporters as a major barrier to using the Access system. Newspapers Canada has noted the trend. Its 2012 FOI Audit noted that the federal government’s performance compared to that of the provinces was “again among the worst” in terms of speed of response. And Canada’s information commissioner, Suzanne Legault, is not amused: “On timeliness, unfortunately, we’re seeing a clear regression, and that’s really negative.” One of the main reasons for delays is that government departments can grant themselves deadline extensions. The most egregious example is a case so bad that the information commissioner went to court at the end of January. The Defence Department used an extension to delay its response to one request—at that point, by 1,100 days, more than three years beyond the 30-day limit.

EXEMPTIONS, REDACTIONS AND BLACKOUTS Another

performance test of the Access system is what proportion of responses include all the information requested. A dozen years ago, in 1999-2000, the federal ATI system disclosed all the requested information 40.6 per cent of the time. By 2006, when the Conservatives came to power, that rate had already dropped to 28.4 per cent. Then it plummeted by almost half—to only 15.8 per cent in 2009-10, which, admittedly, may not have been a representative year. The level has since recovered to a still-dismal 21.2 per cent in 2011-12. In comparison, in the United Kingdom for 2008, 60 per cent of all freedom of information requests received full disclosure; in the United States, the same year, 43 per cent received all they had asked for. But back to Tony Clement. His claim about his “transparent government” was in part aimed at rebutting that study that put 1999-2000

2005-06

2010-11

2011-12

19,294

27,269

41,641

43,194

Percentage of responses that exceeded the 30-day limit

36.8

40.4

43.1

44.7

Percentage of responses that exceeded 60 days

20.4

22.5

22.1

23.4

Percentage of responses where all information was released

40.6

28.4

19.6

21.2

Total number of new requests

Source: Info Source bulletins published by the Treasury Board (various years)


Treasury Board President Tony Clement

By Bob Carty

NOT WHAT I ASKED FOR: ONE REPORTER’S ENCOUNTER WITH ACCESS

A common complaint among Access users is that officials sometimes go out of their way to transform electronic records into print form in order to frustrate the effective use of the information. Here’s one example from Canadian Press reporter Steve Rennie:

Canada’s Access law in 55th place. The government wrote an internal memo to try to refute that study, but ironically, under the Access law, it took Ottawa five months to release it.

INFORMATION PUSHING VS. INFORMATION PULLING

ADRIAN WYLD/CP

And that brings us to the second argument that Minister Clement uses: the Harper government is transparent, Clement argues, because its “Open Government” initiative has made 273,000 “datasets” available on an online Open Data Portal (data.gc.ca). Now, to be clear, CJFE welcomes this initiative—more information is always a good thing. In fact, instead of government databases and documents being available only after someone requests them through the Access procedure, many should simply be made available. We like the Open Data Portal, but only up to a point. If you use the portal to search the Department of National Defence for the F-35 fighter plane, you are told, “No documents matching your criteria were found.” No records at all, let alone any about the controversy over the real cost of the planes. You can find 159 datasets about “immigration” but nothing about the phony citizenship ceremony where federal bureaucrats posed as “new Canadians,” staged for the Sun News Network in October 2011. But the problem with the portal is that politicians and bureaucrats are increasingly using “pro-active disclosure” as an excuse for not releasing controversial or policy-sensitive information. Veteran Access user Dean Beeby, the Ottawa deputy bureau chief for The Canadian Press, sees the Open Data Portal as a case of the government “pushing” information to citizens, whereas Access to Information is about the right of citizens and others to “pull” information. Those are two very different activities, Beeby contends. “The Open Data initiative is a distraction from the main issue, which is the utter breakdown of the Access to Information regime. It provides the federal government a convenient cover for its abysmal performance on freedom of information.”

THE SUNNY SIDE

It’s not all bad news. By May 2012, the information commissioner was able to tell Parliament that 13 of the 18 at-risk federal institutions had improved. Nota-

In May 2012, I filed a number of Access to Information requests to the Privy Council Office (PCO) for monthly visitor logs to Langevin Block [where the prime minister works] for a period spanning January 2011 to May 2012. After months of delays, I finally got stacks of

printed pages back from the PCO this past January. Printed pages were useless to me, as I wanted either a database or an electronic spreadsheet so I could search them to find things like the most frequent visitors. I requested the documents in electronic format. In this case, the PCO is not being asked to create new documents; the spreadsheet already exists. The PCO’s ATI director, Ann Wesch, refused to provide anything but paper copies in order “to protect the integrity and security of redacted PCO information from electronic tampering.” I complained to the information commissioner, citing sections of the Act that require departments to provide records in the format requested. That’s where things currently stand. I have a stack of paper on my desk that is growing more and more irrelevant by the minute.

ble was a grade “A” she later awarded to the CBC/RadioCanada—a sign that, with leadership, things can change. Legault is undertaking a national consultation on reforming the Access law (see page 10). In April the government launched a pilot project in three departments, allowing users to submit access requests and pay fees online instead of through the current paper-based system. In 2014, the government plans to make summaries of completed requests searchable across all departments.

BACK TO THE FUTURE But the continuing concern for a number of analysts is the culture of secrecy in the federal government, exacerbated by the high degree of centralization of power in the triumvirate of the Privy Council, the Treasury Board and the Finance Department. The centre of government appears to want to control all messaging and sees information as ammunition that must be kept out of enemy hands. And so scientists are given new rules to control their access to the media (see page 14). Workers at Library and Archives Canada are told their “duty of loyalty” pervades their personal lives, discouraging their participation in conferences and classroom visits. And academics across the country are fearful about a government plan to reduce its number of websites by 90 per cent or more—a logical measure of efficiency in the eyes of some, but for others, a plan to curtail the amount of publicly available information. The chortles continue for “the most transparent government in Canadian history.”  Bob Carty is a CJFE Board Member.

CJFE REVIEW 2013 9


Access to Information

A HOLLOW RIGHT CJFE’s fix for Access to Information

F

That’s the grade CJFE has given the federal government, in previous Reviews, for its abysmal record on access to information. We scorched the Harper government for excluding huge parts of government and government spending from the access law, for redacting more and more content year by year and for extending delays in responding to requests by weeks, months and even years. Part of the problem is simply the lack of political will to respect the fundamental rights of citizens to hold their government to account. But another part of the problem is that the Access to Information Act (ATIA) is now 30 years old, and its age is showing—it is desperately in need of reforms for the digital age to reduce delays and diminish censorship. The Centre for Law and Democracy (CLD) assessed countries with right to information legislation and out of 93 nations, Canada now ranks 55th, far behind many developing countries and just ahead of Malta and Angola. If the Act is not reformed, we fear that access to information will become a hollow right. So, when the information commissioner of Canada launched a national dialogue on modernizing the ATIA, CJFE felt compelled to respond. Here are excerpts from our submission (the full document is at cjfe.org/a-hollow-right). We called it A Hollow Right: Access to Information in Crisis. For freedom of expression to flour10 CJFE REVIEW 2013

ish, its promoters must do more than reactively denounce and defend. We must work to ensure that those exercising free expression have the raw material necessary to form their opinions and create their types of expres-

sion in the first place. This raw material includes available knowledge of the world they live in. That available knowledge includes the information collected and created by governments. The access to information system is

MIKHAIL ZLATKOVSKY / WAN-IFRA AND CARTOONING FOR PEACE

FOR FAILING.


By CJFE

worth saving—in fact, we would argue that more than ever, it is critical to our free speech and democratic government.

ize its law accordingly. CJFE believes that Canada’s ATIA should be reformed to permit anyone to request information.

THE RIGHT TO INFORMATION

2

Amendments to the current ATIA will not work unless and until there is a major attitudinal shift in the federal government away from the culture of secrecy. Often, it seems, the dominant attitude in government today is that information must be kept away from citizens—the less they and their media know, the better. Within this mindset, access to information is not seen as a right, only as a nuisance. Therefore, CJFE holds that any new or reformed access to information legislation must be preceded by a strong statement of support of several key principles: ■ The government, its agencies and its employees have a duty to create records about their deliberations, communications and policy decisions. ■ Access to information needs to be integral to the design of public programs. ■ The default action for dealing with information should be to release it, not refuse it. Access should be the norm, secrecy the exception. ■ Exceptions and exemptions to the right of access must be discretionary, narrowly defined and subject to both a test of actual harm and a mandatory public interest override.

REFORMING THE ACCESS SYSTEM

We now turn to specific recommendations for reform of Access to Information legislation.

1

Right of access: Who can use Access to Information?

Currently, the ATIA can only be used by Canadian citizens, permanent residents, and individuals and incorporated entities present in Canada. However, the spirit of Article 19 of the Universal Declaration of Human Rights is universal—it states that “everyone” has the freedom to seek, receive and impart information. Fifty-one other countries with access laws have such provisions, and former information commissioner John Reid, among others, thought Canada should modern-

Coverage of the Act: Which institutions should be subject to the right of access found in the Act? The ATIA currently lacks a clear definition of which institutions should be subject to the right of access. Instead it relies on a list in appended schedules. The Conservative government did extend coverage to a number of previously uncovered Crown corporations and arm’s-length bodies in the 2006 Federal Accountability Act (bringing, among others, the Canadian Broadcasting Corporation, the Export Development Corporation, and Atomic Energy of Canada under the ATIA). However, there are still more than 100 “other corporate interests” of the Government of Canada that should be subject to the ATIA. And there is still a lack of principled consistency. Therefore, we recommend that new access to information legislation contain a clear and principled definition of who the Act covers, a definition such as that in the Model Freedom of Information Law of the organization Article 19: (1) For purposes of this Act, a public body includes any body: (a) established by or under the Constitution; (b) established by statute; (c) which forms part of any level or branch of Government; (d) owned, controlled or substantially financed by funds provided by Government or the State; or (e) carrying out a statutory or public function, provided that the bodies indicated in sub-section (1)(e) are public bodies only to the extent of their statutory or public functions. The ATIA should also cover the House of Commons and Senate with appropriate exceptions to protect information that is a parliamentary privilege. The ATIA should also cover the administration and financial activities of the federal courts.

3

Limitations on the right of access: Should there be limitations or exemptions on the information that

governments are required to make public? CJFE accepts that some exemptions are appropriate. But exemptions must be discretionary, narrowly defined and limited by a proof-of-harm test and a public interest override (as in B.C. and Alberta). Under the current system, many exemptions are automatic, not discretionary, and the onus is on the requester or the commissioner to show that there would be no harm in releasing the information. The onus should be reversed. This means that the government department or agency wishing to enjoy an exemption would have to prove: ■ there is a legitimate interest in need of protection; ■ the release of information would be harmful to this legitimate interest; and ■ the likely harm outweighs the public’s interest in the specific information.

Often, it seems, the dominant attitude in government today is that information must be kept away from citizens— the less they and their media know, the better.

4

Cabinet confidences: Should the Access to Information Act exclude records that directly inform cabinet decisions? No, cabinet documents and information in ministers’ offices should be subject to the Act. This is the case in all Canadian provinces where cabinet documents are reviewed by the commissioner in the CJFE REVIEW 2013 11


case of a dispute between the requester and the public body. The failure of the ATIA to cover cabinet documents and ministers’ offices has created a black hole in the Access to Information Act. Former commissioner John Grace said that “no single provision brings the Access to Information Act into greater disrepute than section 69,” the section that excludes cabinet documents. We agree with

reporter Dean Beeby’s observation that the federal government has too often invoked this section with the effect of “drawing a black curtain across vast swaths of government information.” Furthermore, it is precisely the offices of ministers where we have already witnessed cases of direct political interference in the release of documents. CJFE is particularly concerned with the national security provisions in an

amendment to the ATIA in 2001 under the post-9/11 Bill C-36. This amendment was unnecessary and made a bad section of the Act even worse. As we stated in 2001 in our analysis of Bill C-36: “The government already has sweeping powers to prohibit the release of sensitive information to protect Canada’s international relations. Quite properly, they are subject to review by an independent commissioner appointed specifically for the purpose. To our knowledge, during the life of the Access to Information Act there have been no instances in which the security of Canadians has been compromised through release of information under the Act…” We were quite concerned with the recent Supreme Court of Canada finding, in Canada (Information Commissioner) v. Canada (Minister of National Defence) 2011 SCC 25, exempting records produced in and/or held by ministers’ offices. It is not well defined what information can be considered a cabinet confidence. While there may be narrow exemptions in some types of cabinet records, we are very worried that this broad and automatic exemption allows the government to hide information critical to accountability and democratic governance. For example, on March 25, 2011, the Government of Canada was found in contempt of Parliament for its refusal to produce information regarding the costs associated with government crime bills, cuts to corporate taxes and purchasing fighter jets. The government had argued that these were matters of cabinet confidence—and therefore exempt from the ATIA. A parliamentary committee concluded that the failure to produce the documents impeded the House of Commons in performing its functions. This loophole—so large it is sometimes called the “Mack Truck” exemption—is not acceptable and must be corrected.

5

CJFE believes that for many of the above reforms to work, and for the delays in the access to information system to be significantly reduced, the powers of the

12 CJFE REVIEW 2013

CINDERS MCLEOD

Empowering the information commissioner:


The default action for dealing with information should be to release it, not refuse it. Access should be the norm, secrecy the exception.

OTHER RECOMMENDATIONS

1 End the practice of charging a fee

information commissioner should be transformed from those of an ombudsman to those of an order-making tribunal. In most modern access to information legislation, either the information commissioner or some oversight body has power to a) make decisions concerning administrative matters (e.g., time extensions for release of documents) and b) order disclosure over most requests after reviewing materials and make a determination on the tests of harm and public interest override arguments. There would still be recourse to the courts for appeals, but the commissioner would be able to decide many cases— reviewing cabinet documents, for example, to see if any harm would be done in releasing them, and, even if there is some harm, to decide if release is nonetheless justified by a strong public interest.

WHAT CJFE SUPPORTERS SAY ABOUT FIXING ACCESS

In late 2012 and early 2013, we asked our members and supporters to complete a survey about access to information. Here is what some of them had to say.

for submitting an access request. 2 Costs associated with searching for, copying and delivering information should be set at market rates or lower, again simply because it is a core duty of government to release information to the public. 3 Modernize information systems so that they facilitate access by using digital technologies for submitting requests, for monitoring their progress and for delivering information. 4 Digital release: Information should be available in electronic formats to avoid copying costs. 5 A database of completed requests: Users of ATI would benefit from a centralized database that consolidates, across the federal government, all completed access requests—and makes these released documents available for easy download. An enhanced Coordination of Access to Information Requests System (CAIRS), or something similar, should be restored.

CONCLUSION

CJFE is deeply involved in promoting and defending free speech rights around the world through our management of IFEX, the global network of free expression organizations. We have come to appreciate that a functioning access to information system is something tyrants deeply fear. In Canada, it is long past the time

■ “I finished a doctorate in May 2011. I was still receiving information requested under ATI from requests I made three years earlier at the very beginning of my research. For the most part, all the information I received was both late and useless/ redacted beyond all recognition.”

■ “I am fighting to find out about the lack of oversight over the nurses that were caring for (my husband) the night that he died. I am being denied access to notes and documents from my own hearings, and there are too many mechanisms and strategies for how to avoid giving me access to information

when the ATIA should have been amended. Countless politicians and political parties (including the current governing party) have called for changes. The time has come to translate this talk into action. We fear that if the ATIA is not modernized and reformed now, it will become so dysfunctional as to be of questionable usefulness. Canadians will not trust it as a reliable way they can find out how government decisions are made, and to whose benefit. If that happens, there will be consequences. A country that does not maintain a healthy and modern access to information system will find its economy corroded and corrupted by the lack of accountability, possibly leading to economic meltdowns, as we have seen only too recently. Without an up-to-date, comprehensive and rapid access to information system, a country risks debasing its democracy and eroding the rights of its citizens. Certainly, governments will lose the trust of the people. CJFE looks forward to the day that Canada’s Access law will no longer be ranked 55th in the world, but will once again take its place among the world leaders on this important right. One way we will be able to measure the success of the reforms we and many others are suggesting will be when we find more and more Canadians using the system and more and more stories written each year on the basis of access requests. 

pertaining directly to me and my husband.” ■ “More public education on how to use the system. It’s not just journalists who need to use it but individuals pursuing law cases against the government and its agencies (and I suppose lawyers, too).” ■ “If our tax dollars are involved it is the right and responsibility of the

citizens to evaluate these expenditures. General Accounting Principles as I understand depend on open disclosure rather than hidden agendas and misappropriations.” ■ “Documents that have been released to an individual should then be made available to all Canadians. To prevent duplication of efforts.”

CJFE REVIEW 2013 13


Free Expression

Let Science Speak Harper government continues to muzzle federally funded scientists

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journalist, I see a lot of protests on Parliament Hill. But none like the one in July 2012. Oh, it had the usual trappings of a protest—placards and passionate speeches, even some theatrics with the entrance of a coffin draped in black, accompanied by a scythe-wielding Grim Reaper. But what was extraordinary about that demonstration was that the estimated 2,000 protesters were scientists. That’s right, scientists—from government and academia—dressed in white lab coats and assembled in mock mourning for the “death of evidence” under the Harper government. It takes a lot to make scientists—a group used to being unappreciated— angry in public. Two things have fuelled their indignation: severe and targeted cutbacks on government research programs and new rules limiting the ability of government scientists to talk to journalists. On the first front, government scientists have witnessed a long and growing list of cuts to evidence-gathering programs by the Harper administration: ■ Omnibus budget bills impose cuts and layoffs that affect the monitoring of waterways, fisheries and natural resource projects. ■ The government instructs Statistics Canada to terminate its mandatory long-form census. ■ The Department of Fisheries and S AN OTTAWA-BASED

14 CJFE REVIEW 2013

Oceans (DFO) stops funding the Experimental Lakes Area, the only facility of its kind in the world, credited with making groundbreaking discoveries about phosphates and acid rain. ■ After producing more than $100 million worth of groundbreaking climate change research, the Harper government ends support for the Canadian Foundation for Climate and Atmospheric Sciences. Casualties include the Polar Environment Atmospheric Research Laboratory (PEARL) and the Polar Environment Climate Stability Network (PECSN), both critical to studying climate change in the Arctic. ■ Ottawa cuts all funding for the First Nations Statistical Institute (FNSI), which gathers information on Aboriginal peoples, who are usually less represented in government data. ■ Cutbacks to Canada’s ozone monitoring network limit the world’s ability to monitor air quality and ozone depletion. ■ The government shuts down sources of scientific policy advice such as the National Science Advisor (the first and last person in the position was Dr. Arthur Carty, known for his strong stance on “open access” to scientific information) and the National Round Table on Environment and Economy (accused by Foreign Affairs Minister John Baird of pushing for a carbon tax). There’s an obvious pattern here: the Harper government appears intent on suppressing certain kinds of science:

science that could undermine its policies about climate change, the oil sands, ozone depletion, mining and pipeline projects, and other sensitive issues. We are witnessing the erosion of the principle that evidence should be the foundation of political discourse, sound policy and government regulation. Or, as the protesting scientists have put it, Ottawa is becoming “an evidence-free zone” with a governing party dedicated to “decision-based evidence making.” The protestors’ second grievance was the degree to which they have been muzzled by a government obsessed with message control. Beginning in 2007, the Harper administration brought in new communications guidelines. Scientists were required to submit media interview requests to the Privy Council in Ottawa and then wait, sometimes for weeks, before being told they would not be given approval to speak. As stories about the restrictions grew, Environment Minister Peter Kent was adamant. “We are not muzzling scientists,” he insisted. The problem resided with “a small number of journalists … who believe that the universe rotates around them and their deadlines.” However, documents released in late 2012 under Access to Information revealed the heavy hand of Kent’s office and that of the Privy Council. Both directly intervened to prevent Environment Canada scientist David Tarasick from talking to the media about his discovery of an unprecedented ozone hole over the Canadian Arctic. It had nothing to do with the impatience of selfcentred reporters. Tarasick was eventually allowed to speak, but only several


By Bob Carty

BRUCE CAMPION-SMITH/TORONTO STAR

TIMELINE weeks after the news had broken, and then with a government “minder” listening in. The damage had been done—for journalists, news delayed is news denied. This year, Ottawa has added a few new measures for muzzling government scientists—measures that directly handcuff scientific research. In January 2013, the DFO sent an email for the Central and Arctic Science Sector instructing scientists that they must await departmental approval to submit research to scientific journals. Even if a manuscript has been accepted by a journal, the DFO has eleventh-hour powers to pull the paper if it doesn’t want the data to go public. The DFO has also proposed confidentiality provisions that, for the first time, would apply to non-government and non-Canadian research collaborators. Some American scientists have already said they won’t sign such confidentiality agreements, especially when their own government is actively promoting greater openness with government-funded research. The Harper administration isn’t the first government to try to massage the message. But in my experience, it’s never been this bad. Some journalists have given up even trying to get a comment from a federal scientist in Canada—it’s easier to call someone in the U.S. or the U.K. And it need not be like this. Climate scientist Gordon McBean, who was an assistant deputy minister at Environment Canada in the ’90s, says that instead of silencing scientists, he sent them away for media training—so that they would talk more to the media. That’s what CJFE would like to see. More than a year ago we wrote a public letter to Prime Minister Harper saying: “We want freedom of speech for federal scientists because we believe it makes for better journalism, for a more informed public, for a healthier democracy, and it makes it more likely that Canadians will reap the maximum benefit from the research they fund.”  Bob Carty is a CJFE Board Member. An earlier version of this article appeared in Canadian Chemical News.

2012

■ APRIL In a scene reminiscent of the Cold War, government “minders” shadow scientists at an international polar conference to ensure they do not say something inappropriate to the media. The so-called “media relations contacts” monitored and recorded all interactions between Canadian scientists and the press. No government scientists were willing to discuss the novel chaperone service; off record, one called it an embarrassment to Canada. ■ JULY More than 2,000 scientists stage the “Death of Evidence” demonstration on Parliament Hill, garnering headlines across Canada and around the world. Jeff Hutchings, a professor of biology at Dalhousie University, addressed the protestors: “When you inhibit the communication of science, you inhibit science. When you inhibit science, you inhibit the acquisition of knowledge … An iron curtain is being drawn by government between science and society. Closed curtains, especially those made of iron, make for very dark rooms.” Protest organizers continue to monitor censorship and galvanize public opinion at scienceuncensored.ca. ■ NOVEMBER A document released under Access to Information to Postmedia’s Mike De Souza reveals that Environment Canada scientists had confirmed results published earlier by water expert David Schindler to the effect that contaminants were accumulating in snow near oil sands operations. The document reveals that government

researchers were discouraged from speaking to reporters about their findings, and a scripted list of answers was developed to contradict the findings. ■ DECEMBER Contrary to government claims that there was no muzzling of scientists, documents released under Access to Information show that ozone scientist David Tarasick was prevented from talking to the media by order of Environment Minister Peter Kent and the Privy Council Office.

2013

■ JANUARY The Royal Society of Canada joins the debate, with its president, Yolande Grisé, telling Ottawa: “The federal government should immediately unshackle government scientists and let them do their jobs. The integrity of evidence-based public policy development is at stake. The public should be allowed to learn directly from our scientists when they make discoveries in areas of public concern.” The Montreal Gazette, in an editorial, expresses dismay “that the present Conservative government in Ottawa is so insecure that it is afraid to let scientists in its employ speak freely about their findings.” ■ FEBRUARY Democracy Watch and the Environmental Law Centre of the University of Victoria ask Canada’s information commissioner, as part of her mandate to investigate complaints about access to information, to look into the government’s “systematic efforts” to obstruct researchers. An accompanying 128-page study, Muzzling Civil Servants: A Threat to Democracy?,

charges that: Natural Resources Canada has “particularly strict rules restricting the ability of scientists to talk to the media about ‘climate change’ and ‘oil sands’”; Environment Canada “specifically forbids scientists from speaking to the public on identified issues such as climate change or protection of polar bear and caribou until the Privy Council Office gives approval”; and Fisheries and Oceans Canada staff “comprehensively control interviews.” In the U.S., the Obama administration instructs government scientists to release federally funded scientific papers more quickly, and for free, to the public. ■ MARCH Two years after she was forbidden to talk to the media about her peer-reviewed and already published research into diseases that are killing West Coast salmon, DFO researcher Kristi Miller is allowed to talk to the press for the first time— about her future salmon research. ■ MARCH Information Commissioner Suzanne Legault responds favourably to the request from Democracy Watch and the Environmental Law Centre, announcing the launch of an investigation into seven federal government departments over the muzzling of scientists. ■ MARCH Federal funding stops for the Experimental Lakes Area. The $2-million annual cost of the unique, world-renowned research facility is equivalent to seven per cent of the bill for the Conservative government’s spending to commemorate a 200-year-old war.

CJFE REVIEW 2013 15


Surveillance

ATI requests filed by Aboriginal child welfare advocate Cindy Blackstock reveal the extent to which the federal government is watching and documenting her every move

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HE FIRST THING that shocked Cindy Blackstock was the sheer volume of stuff—hundreds of pages of government documents about her own life—squeezed onto two discs. “I go through the slides, and I’m starting to see they are following me to different talks,” says Blackstock, the executive director of the First Nations 16 CJFE REVIEW 2013

Child and Family Caring Society of Canada. “And they would be sending reports about these talks, not just to one or two people, but in many instances to 10 or 15 people. That, in and of itself, is kind of disturbing. It’s kind of like I had a professional stalker.” The federal Department of Aboriginal Affairs and Northern Development even documented Blackstock speaking at a conference in remote Alice Springs, Australia. Amid the documents was ample evidence of frequent Facebook creeping— screenshots of Blackstock’s private, personal Facebook page, including chats with friends about movies and cooking, circulated among several government officials. The kicker, found in a second batch of documents, was her Indian status registry, complete with personal information about her entire family. According to the date stamp, it was obtained by department staff the very day Blackstock appeared on the CBC’s The Current to talk about being surveilled. “You don’t want to believe your government is doing this,” says

—Cindy Blackstock Blackstock. “Even I was sitting there thinking, ‘I don’t believe this.’ But it was page after page after page.” With those documents, Blackstock became the latest victim of what some fear is now a routine strategy employed by the federal bureaucracy to systematically collect and circulate public and private information on critics. According to human rights lawyer Paul Champ, it’s a strategy that could intimidate citizens, stifle free speech and discourage

PAWEL DWULIT/TORONTO STAR

Under the Microscope

“You don’t want to believe your government is doing this. Even I was sitting there thinking ‘I don’t believe this.’ But it was page after page after page.”


By Mary Agnes Welch

“It’s kind of like I had a professional stalker.” —Cindy Blackstock activism among citizens who disagree with government policies. “It brings to mind a Big Brother image of government, following every move of a citizen,” says Champ, who represents Blackstock and the Caring Society. “It certainly causes a chilling effect.” Blackstock’s case is not the first, nor the worst. In 2010, Sean Bruyea, an outspoken advocate for wounded soldiers and a critic of Veterans Affairs, earned an apology and an out-of-court financial settlement after government staff snooped through his private military medical records and circulated them widely in an attempt to smear him. The backdrop to Blackstock’s case is the landmark Canadian Human Rights Tribunal hearings, which began Feb. 25, 2013, that could overhaul how Ottawa funds child welfare and other social services on reserves. Backed by the Canadian Human Rights Commission, the Caring Society and the Assembly of First Nations are arguing that federal funding for Aboriginal children on-reserve is discriminatory when set against much more generous provincial funding off-reserve. As part of the case, the Caring Society will also argue that the relentless surveil-

DON’T GET BLACKSTOCKED

Filing a request under the Privacy Act is very much like filing a federal access to information request. Here are some tips, courtesy of Cindy Blackstock:

lance of Blackstock was triggered by the child welfare complaint and amounts to retaliation and intimidation prohibited by the Human Rights Act. That relentless surveillance has been largely clumsy and futile in Blackstock’s case. There are no juicy tidbits for federal officials to use against her, not even a parking ticket. “She is by no means a threat to society,” scoffs Mi’kmaq lawyer, professor and Idle No More activist Pam Palmater. “She is standing up for kids.” Inspired by Blackstock, Palmater requested her own information file under the Privacy Act, and she received 1,000 pages in response, all detailing a similar kind of surveillance. Now, whenever Palmater steps up to a podium, she (only half-jokingly) does “random spot checks for feds” in the audience. She says Blackstock’s case and others like it will create a chill among many activists—environmentalists and students, but especially Aboriginal peoples, who already have an ingrained mistrust of government. Blackstock first turned to the federal Privacy and Access to Information acts after she was punted from a meeting with government officials in Ottawa in December 2009. That meeting was meant to bring together senior Aboriginal Affairs staff and Ontario’s chiefs to discuss child welfare issues, and Blackstock was there as a policy advisor to the chiefs. But she says she was barred from the meeting because of her “issues” with child welfare funding and was left waiting in a reception area while a beefy

■ Not all government documents are date-stamped, and if you ask for documents between certain dates, you may only get those that have been datestamped. Be sure to use phrases such as “date-stamped or likely to be date-

stamped” and “produced or likely to be produced” during a certain time frame. ■ Make the same request to several government departments. In Blackstock’s case, she asked for documents from Aboriginal Affairs, Justice

security guard kept watch over her. “I wondered, ‘What is it about me that invokes the Government of Canada to call up a security guard to guard me?’” That security guard turned out to be one of 189 government staffers who authored, received or were copied on information about Blackstock’s daily doings, raising red flags for her and many others about the extent of bureaucratic spying, the protocols that govern it and whether persistent surveillance is now the government’s preferred way to silence critics.  Mary Agnes Welch is a reporter at the Winnipeg Free Press, the former president of the CAJ and a 2012-13 Southam journalism fellow at Massey College.

“It brings to mind a Big Brother image of government, following every move of a citizen. It certainly causes a chilling effect.” —Paul Champ

and others. ■ Ask for documents and drafts of documents. The back-and-forth between staff as they craft media lines, for example, can be revealing. ■ Use a combination of names to ensure you are getting

everything— Cindy Blackstock, Cynthia Blackstock, Dr. Blackstock, etc. ■ Appeal all redactions and extension notices. ■ Be patient, but persistent. It took Blackstock 18 months to get her first batch of files.

CJFE REVIEW 2013 17


Whistleblowing

SMALL STEPS FORWARD,

BIG STEPS BACK Whistleblowers continue to face tremendous hardship

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HERE HAVE BEEN a few steps forward for whistleblowing in Canada over the past year, but we have fallen backward in developing solid conditions to encourage the practice in the public’s interest and in protecting those who are brave enough to report malfeasance where they work. Often, heralded improvement doesn’t stand deeper scrutiny and is analyzed as having more sizzle than substance. The new whistleblower legislation passed in Alberta, which came into effect Dec. 10, 2012, is a vivid example. And when individuals persevere in their determination to see wrongdoing stopped, most are chastised, vilified, fired from their jobs and unable to work in their industry or field anymore. In the latest prominent case, that of whistleblower Edgar Schmidt (see page 20), we are once again seeing the tactics of vilifying the whistleblower and retribution in the form of suspension without pay—hardly encouragement for anybody considering blowing the whistle. To cap the steps backward, one of the three independent organizations sitting on the advisory committee of Canada’s federal Integrity Commission was expelled, and the two others quit in protest of this action.  

ALBERTA: NEW LAW, OLD PROBLEMS

When the government of Progressive Conservative Premier Alison Redford 18 CJFE REVIEW 2013

brought the proposed Public InterThe most comprehensive analysis est Disclosure (Whistleblower Protec- of the Alberta bill came from FAIR tion) Act to the Legislative Assembly, it (Federal Accountability Initiative for claimed the Act was better than those Reform), one of the foremost organifound in the six other provinces that zations devoted to promoting and proalready had whistleblower statutes of tecting whistleblowers across Canada. one kind or another. Indeed, the bill FAIR claims there are nine key shorthad much text on how permanent gov- comings and four other serious issues ernment employees could file claims of in the bill including the following: wrongdoings, how allegations would ■ “The Commissioner has unlimbe investigated and how proven repri- ited powers to exempt any person or sals against whistleblowers would draw organization, placing them above the heavy fines. law—an extraordinary But the bill also had provision to put in any major shortcomings, legislation.” Provinces and the three opposi■ “The Commissioner tion parties filed many need not ever conduct that have major amendments— a single investigation some form of all of which were of alleged wrongdoing: whistleblower rejected by the Conserhe has unlimited disprotection: vative majority. While cretion to do nothing.” ■ Alberta criticism of the legisla■ “There is no mech■ Manitoba tion was expected from anism to challenge ■ New Brunswick the political left, there the Commissioner’s ■ Nova Scotia was also a strong negadecisions...” ■ Ontario tive reaction from the ■ “The law does not ■ Quebec Wildrose Party on the cover wrongdoing in ■ Saskatchewan right. Wildrose Party private sector organizaLeader Danielle Smith tions at all, even when said the regulations government money is served to protect the government, not involved, or public health and safety public servants. She complained that are at risk.” the new law “is designed to keep the David Hutton, FAIR’s execuinformation internal...not to shed light, tive director, says the Alberta law is but to hide information and there’s “demonstrably worse than the deeply absolutely no protection in the legisla- flawed and long-discredited federal tion that compels the Commissioner to law: stripping out its few good features, protect their [public servants’] jobs.” copying some of its worst provisions Like most whistleblower laws in Can- and adding several more loopholes. ada, the Alberta version provides rules The Alberta law stands out because about whistleblowing only in govern- of the way the government so brazenly ment institutions, not in the private sec- ignored best practices and even introtor. It does not even extend the law to duced additional measures that seem cover consultants and private companies designed to render the law useless to that have contracts with the government. whistleblowers and perfect for keeping


misconduct under wraps.” The complete text of FAIR’s report is available at
fairwhistleblower.ca/files/ fair/docs/alberta/Analysis_of_Alberta_ PIDA.pdf.

ADRIAN WYLD/CP

THE RUMBLE IN OTTAWA

In what would have been laughable if it weren’t so indicative of what’s wrong at the federal level involving whistleblowing, Public Sector Integrity Commissioner Mario Dion expelled FAIR from his advisory committee on Oct. 15, 2012, two days after the Ottawa Citizen published a letter to the editor in which FAIR’s David Hutton criticized Dion’s Office. In the letter, Hutton noted that a Federal Court ruling severely excoriated Dion’s commission for its handling of whistleblower cases, including one in which there were so many mistakes that it was “a clear breach of the common law duty of procedural fairness,” according to the Federal Court judicial review of the case. The Court ordered Dion to reopen the investigation he had closed. Hutton’s letter also attacked Dion’s lack of results since taking office, and said FAIR had heard from more than 30 whistleblowers who expressed difficulties in dealing with the Office. Dion, a veteran Ottawa bureaucrat, served as interim commissioner from December 2010 until he was appointed commissioner in 2011, and was faced

By Arnold Amber

with clearing up the mess left by Christiane Ouimet, another bureaucratinsider, who resigned suddenly after an investigation by the auditor general. That probe revealed that during her 38 months as commissioner, Ouimet formally investigated only seven of the 228 allegations brought by whistleblowers and found no wrongdoing in any of them. In his email notifying FAIR of its removal from the advisory committee, Dion claimed: “Constantly undermining the work of this Office in the media and before parliamentary bodies and in so doing discouraging potential whistleblowers from coming forward is inconsistent with the role of a Committee member.” The advisory committee’s two other independent organizations involved in protecting whistleblowers—Canadians for Accountability and Democracy Watch—heatedly refuted Dion’s charges and asked him to invite FAIR back to the committee. When Dion refused, they left the committee. In a press release, Allan Cutler, president of Canadians for Accountability and a key whistleblower in the Liberal party sponsorship scandal, said he cannot serve on an advisory panel where members are dismissed “at a whim.”

“We will not continue in an environment where we are expected to help cover up mistreatment of whistleblowers by not reporting situations publicly,” Cutler stated in his resignation email. In the press release, he also noted, “we will not be muzzled.” In an opinion piece in the Hill Times, Ian Bron, managing director of Canadians for Accountability, went even further, urging Dion to change his ways, and, if he does not, calling for the commissioner’s removal from office: “He has turned his back on the voices of those who speak plainly for whistleblowers and dissenters… This is what will prevent people from coming to his office, not well-deserved criticism. This is unworthy of a person in his position, and if he can’t admit his mistake and fix it, then Parliament should remove him.” At the time of this writing, there has not been any rapprochement, and Dion’s Office keeps issuing news releases about how well it’s doing in promoting and protecting whistleblowing.  Arnold Amber, CJFE president, was a longtime executive producer with CBC Television. He was a union representative involved in an early federal government consultation on the drafting of whistleblower legislation.

Whistleblower Profile: EVAN VOKES Evan Vokes, an engineer devoted to adhering to his profession’s code of ethics and practices, took on TransCanada, this country’s largest pipeline operation, which wants to build the controversial Keystone XL oil pipeline. Like many other whistleblowers, Vokes lost his job in doing so. After about five years working for TransCanada, Vokes told his superiors, vice-president of operations and the CEO, that it was not complying with National Energy Board (NEB) regulations when inspecting pipelines, the quality of its welding and other engineering matters. When TransCanada did not take action, he met with top NEB officials and then filed a written complaint on May 1, 2011. Seven days later, TransCanada fired Vokes without cause. When the NEB did not act on Vokes’s complaints for a long period of time, he went public. That appeared to move the NEB along, and in October 2012, it said it found some of Vokes’s complaints were valid. It ordered a major audit of TransCanada’s internal engineering standards and some of its 57,000 kilometres of oil and gas pipelines. Vokes is still unemployed, a fate suffered by most whistleblowers in the private sector because there is no legal job protection for them in Canada. In March 2013, Vokes was awarded the Golden Whistle, presented by the organization Canadians for Accountability. In an interview at the ceremony, Vokes said engineers have “a duty of care—and the code of ethics is very, very clear. The duty of care says you take care of the public before you take care of who you work for.”

CJFE REVIEW 2013 19


Whistleblowing

By Philip Tunley

Blowing the Whistle on the Justice Ministry

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AWYER Edgar Schmidt’s

battle with his employer, the federal Department of Justice, involves a new kind of whistleblowing. Rather than going to the media with his allegations, he went straight to the Federal Court. In doing so, he has put his professional status on the line, as well as his career as a lawyer employed to advise the Justice Department about the very matters he seeks to expose and change. Lawyers’ duties of confidentiality to their clients, and clients’ privilege to protect communications with their legal advisers, involve fundamental professional obligations, not just terms of an employment contract.

The day after Schmidt filed his claim in the Federal Court, he was suspended without pay. Schmidt’s court action is an important one. It claims Canada’s Justice Ministry is not doing its job of advising Parliament and the public when proposed laws appear to be inconsistent with the constitutional rights and freedoms protected by Canada’s Charter of Rights. As a senior legal adviser 20 CJFE REVIEW 2013

in the Justice Department’s Legislative Services Branch, Schmidt is well qualified to make that allegation. Right or wrong, his freedom to raise that issue, and the public interest involved in allowing members of Parliament, lawyers and the public to hear and debate it, could hardly be more compelling. Importantly, his claim is that the Department of Justice is acting unlawfully. The Department is a public body, created by the laws of Canada and bound to act in accordance with those laws. Its minister, the attorney general and minister of justice for Canada, has a broad responsibility to independently advise the cabinet and the prime minister on the legality or illegality of the government’s actions. One of the Justice Department’s responsibilities, expressly imposed by Parliament, is to “examine” every proposed bill or regulation to see whether the proposed laws “are inconsistent with” the Charter and other fundamental legal requirements. If so, the Department is required to “report any such inconsistency” to Parliament. Schmidt claims the Justice Department is failing to perform that duty. He claims the Department’s practice is only to report if a proposed law is “manifestly or certainly” invalid, such that the arguments to support its validity “have a combined likelihood of success of 5% or less.” He has asked the Federal Court to declare that the laws mandating this review, properly interpreted and applied, require the Justice Department to make a report whenever

Edgar Schmidt

it is “more likely than not” that the proposed law is invalid. Professional codes governing the conduct of lawyers in Canada generally recognize the legitimacy of lawyers breaching the law in order to bring an important test case such as this before the courts. Yet Schmidt’s case immediately appears to have provoked punitive retaliation by the Justice Department. The day after he filed his claim in the Federal Court, he was suspended without pay. The lawyers assigned by the Department to respond immediately asked the Court for orders to remove Schmidt’s claim from the public court file and to strike out or stay the action. The Globe and Mail reported that, at a hearing on Jan. 15, 2013, Federal Court Judge Simon Noël criticized the Justice Department’s tactics, saying: “It’s unbelievable … Your client has done everything it can to kill this thing. The court doesn’t like that … We see that in different countries and we don’t like it … Canada is still a democracy.” CJFE will continue to monitor this important case and, if appropriate, seek leave to intervene.  Lawyer Philip Tunley is a member of CJFE’s Board of Directors.


By Peter Jacobsen and Nadine Touma

Free Expression

Truth is Not a Defence …and other reasons why hate speech allegations should only be adjudicated through the criminal law process

W

the Supreme Court of C a n a d a ’s r e c e n t decision on hate speech (Saskatchewan Human Rights Commission v. William Whatcott, 2013 SCC 11), many had hoped the Court would lead off with a robust affirmation of freedom of expression that would inform the guidance it would provide to the lower courts and the various Canadian human rights commissions. In its intervention on this case, CJFE advocated removing the offence of “committing hate speech” from the purview of the various federal, provincial and territorial human rights codes altogether, in favour of leaving the heavy lifting in this area to our criminal courts HILE AWAITING

and the provisions of the Criminal Code. In addition to the inconsistencies and vagaries inherent in having each federal, provincial and territorial jurisdiction possess its own distinctly worded human rights code, each of the freestanding human rights commissions and tribunals enforces its legislation to prohibit hate speech in accordance with its particular standards and definition of “hate speech.” Indeed, one positive development from the Whatcott ruling, released Feb. 27, 2013, was the Supreme Court striking down part of the definition of hate speech contained in the Saskatchewan Human Rights Code. Unfortunately, a Supreme Court review of the other Canadian human rights codes must await the “right case” coming before the Court. There have also been troubling questions raised about whether Canada’s various human rights commissions and tribunals possess the expertise and clinical objectivity that need to be brought to bear when divining the bright line between actionable hate speech and merely vile, objectionable speech. In the WIC Radio case (WIC Radio Ltd. v. Simpson, 2008 SCC 40), the Supreme Court proclaimed that freedom of expression and debate is the “very life blood of our freedom and free institutions.” The Court went on to assert that in Canada, “we live in a free country where people have as much right to express outrageous and CJFE REVIEW 2013 21


ridiculous opinions as moderate ones.” Nevertheless, the Supreme Court began its ruling in Whatcott by cautiously reminding us that Section 2(b) of the Charter of Rights and Freedoms, which provides a constitutional guarantee of freedom of expression, is not an absolute right.

By assigning the exclusive jurisdiction over hate speech to the courts, we would achieve the benefit of standardizing the definitions, interpretation and procedure for prosecuting hate speech throughout Canada.

The Court is correct on the theory. Any Charter guarantee of constitutional rights, including freedom of speech, is subject to limits designed to prevent clear and identifiable harm (not merely speculative harm) to specific individuals. There are many examples of laws that restrict free speech aimed at a clear and identifiable harm: the laws of defamation; laws to protect the identity of minors in certain circumstances; restrictions to prevent victims of certain crimes from being identified; restrictions to limit expression that could be harmful to Canada’s national 22 CJFE REVIEW 2013

security; and laws to protect an accused person’s right to a fair and public trial. In accordance with Section 1 of the Charter, all of these legislated limits must be “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Our courts, with their well-trained judges and established procedures, are better equipped to make these judgment calls than the various human rights commissions and tribunals, whose members come from a variety of backgrounds. As mentioned above, CJFE urged the Court to remove the decisions as to what constitutes hate speech from those commissions and tribunals. CJFE argued that, among other things, applying the Criminal Code standard provides some clarity as to what constitutes hate speech and ensures that the accused gets all of the attendant protections provided by the criminal law process. Furthermore, by assigning the exclusive jurisdiction over hate speech to the courts, we would achieve the benefit of standardizing the definitions, interpretation and procedure for prosecuting hate speech throughout Canada. Instead, the Supreme Court merely reiterated its 1990 decision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, saying hate speech should not be the exclusive purview of the criminal law. The Criminal Code, while not perfect, is consistent and clear. Section 318 of the Code forbids hate propaganda, which includes advocating or promoting genocide. “Genocide” means acts committed with the intent to destroy an identifiable group by killing or deliberately inflicting conditions of life calculated to bring about

its physical destruction. An “identifiable group” is defined as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.” Section 319 of the Code creates two offences. The first offence is public incitement of hatred, which prohibits communicating statements, in any public place, that incite hatred against any identifiable group where such incitement is likely to lead to a breach of the peace. The second offence prohibits wilful promotion of hatred against any identifiable group by communicating statements other than in private conversation. The criminal law process establishes a wide range of carefully calibrated offences and penalties, designed to assure proportionality between each offence and the penalty imposed. In addition, the Code allows a judge to confiscate publications that appear to be hate propaganda, which assures protection of the public and restricts the harm that the publications could cause before the Court reaches a verdict. The state’s limitation of acceptable speech is a grave and important step that should only be initiated and prosecuted by the state in accordance with the checks and balances inherent in our criminal law system. As it stands, the decision to initiate a hate speech complaint is usually up to complainants before human rights tribunals. They are entitled to seek damages with little personal risk. The commissions, with their lawyers and investigators, typically “prosecute” the cases on behalf of the complainants. The “accused” has to fend for him- or herself by defending against the allegations in what is inevitably a very time-

to read sections of the criminal code referred to in this article , visit :

laws-lois.justice.gc.ca/eng/acts/C-46/page-152.html#h-92 laws-lois.justice.gc.ca/eng/acts/C-46/page-153.html#docCont


consuming and expensive process—one that lacks the presumption of innocence and the requirement that the case be proved beyond a reasonable doubt. Astoundingly, as revealed again in Whatcott, human rights codes do not allow defences based on the truthfulness of the communicated statements. Rather, the court darkly opined that “truth may be used for widely disparate ends”—whatever that is supposed to mean. The Supreme Court affirmed that the accused’s honest belief in what he or she said is not a defence, but more troubling is the Court’s affirmation that speaking the truth is not a defence. It is remarkable that truth, which is a defence in defamation cases and the determining factor in most legal cases, is not a defence. While the rest of the legal system is engaged in the search for truth, the law of hate speech endorsed by the Supreme Court says truth is of no consequence. In an ironic twist of reasoning, the Court assumes that a failure to ban hate speech, to the extent that it tends to silence the targeted groups, may be “more rather than less damaging to freedom of expression.” But what about potentially silencing the speech that may be truthfully and accurately describing targeted groups? While we do not argue that this is the case in Whatcott, any judicially sanctioned restriction of free speech that includes preventing truthful speech that does not reach the criminal standard of being “likely to lead to a breach of the peace” or “wilful promotion of hatred” against any identifiable group should be of great concern to a free and democratic society. A few years ago, the Court required evidentiary proof of the self-evident proposition, put forward by journalists, that requiring journalists to reveal confidential sources would result in those sources drying up. There is no such evidentiary rigour demanded by the Court to evaluate the many harmful effects it suggests hate speech is likely to cause.

CJFE asserts that the use of censorship by the state must be confined to the restricted category of harmful expression that threatens (or advocates or justifies) violence or hatred against the members of an identifiable group.

For example, the Court says hate speech “opposes the targeted group’s ability to find self-fulfillment” and “impacts on that group’s ability to respond to the substantive ideas under debate.” Hate speech also “acts to cut off any path of reply by the group under attack” and is “an effort to marginalize individuals” based on their membership. Commentators have justifiably asked if there is any proof of these effects or how serious these alleged consequences really are in the real world. Are we doing the discouragement of hate speech any favours by making a public spectacle out of prosecuting those “offences” that fall below the criminal standard and giving the promoters of abhorrent speech another soapbox from which to disseminate their vile messages? There is no justification for: 1) laws limiting hate speech beyond the limitation in the Criminal Code; 2) allow-

ing the state to satisfy a standard of proof less stringent than the “beyond a reasonable doubt” standard imposed by criminal law, to “convict” someone of a hate speech violation; or 3) denying the accused the defences contained in the Criminal Code by proceeding by way of a prosecution under a human rights code. Since freedom of expression is constitutionally protected in Canada, any restrictions on this fundamental and cornerstone freedom must be as limited as possible and demonstrably justifiable. CJFE asserts that the use of censorship by the state must be confined to the restricted category of harmful expression that threatens (or advocates or justifies) violence or hatred against the members of an identifiable group. The federal, provincial and territorial human rights codes must not be used as means of dealing with group defamation. Only when the speech reaches the level of inciting violence should the state weigh in. When it does so, the impugned communicator must be afforded the defences of criminal law and not the variable and vague language of the federal, provincial and territorial human rights codes. In its effort to clarify the law on hate speech, the Supreme Court of Canada in Whatcott regrettably sanctioned an overly broad and vague notion of actionable hate speech to the detriment of freedom of expression, and it missed the opportunity to ensure that the courts, not inferior tribunals, decide these seminal cases.  Peter Jacobsen is a founding partner of the firm Bersenas Jacobsen Chouest Thomson Blackburn LLP. He is a member of CJFE’s Board of Directors and Chair of the Canadian Issues Committee. Nadine Touma is a partner of the firm Poupart, Dadour, Touma and associates and a member of CJFE’s Canadian Issues Committee.

CJFE REVIEW 2013 23


Access to Information

By CJFE

A Tough Bill to Swallow

tion is no clearer on its face than Section 68.1. If passed, it would wipe out the benefit of judges’ extensive deliberations on the existing law.

Bill C-461 would compromise the integrity of the CBC’s journalism

C

JFE IS CONCERNED that a private member’s bill

currently before Parliament will jeopardize the journalistic integrity of the CBC and its ability to protect the identity of confidential sources.* In March 2013, the House of Commons passed, on second reading, Bill C-461, which would change the Access to Information Act (ATIA) and the Privacy Act concerning CBC/Radio-Canada. The bill was introduced by MP Brent Rathgeber (Edmond-St. Albert), who is on record as saying that he sees no need for public broadcasting today. He says he wants more accountability from the CBC and the release of more information about the salaries of top managers and personalities. CJFE does not object to the CBC being put under the Access law for documents pertaining to its general administration. But our organization, deeply rooted in the field of journalism, is very concerned that this bill could jeopardize the ability of the CBC to protect journalists’ notebooks and confidential sources. We support the kind of accountability and protections that public broadcasters have in the United Kingdom, Ireland and Australia. The CBC should have no less.

WHAT DOES THIS BILL DO? Bill C-461 makes changes to the Access to Information Act, taking away the CBC’s “exclusion” in Section 68.1—which protects the CBC’s journalistic, creative and programming activity. Under the proposed bill, the CBC would be subject to an “exemption” with an injury test. It’s not just a matter of legalistic semantics. Under Bill C-461, the CBC would have to prove, in each and every case, that releasing journalistic, creative and programming documents would not cause injury to the broadcaster’s “independence”—itself a vague term vulnerable to subjective interpretations.

The most serious concern—one even recognized by the Justice Department, which says it will introduce amendments—is that Bill C-461 would undo the Supreme Court of Canada’s recognition of the importance of confidential journalistic sources (which includes a legal framework that makes it very difficult to prove it’s necessary to turn over a name). Without that protection, what whistleblower would approach a CBC reporter? How could CBC journalists in good faith promise to protect their sources? How could the CBC conduct investigative journalism and hold those in power to account? Bill C-461 would significantly weaken the CBC’s ability to deliver a key component of its journalistic mission: carrying out public service journalism and creating programming completely independent from the government. To carry out that mandate, CBC journalists must be able to conduct research and prepare programs without pressure to disclose the results prematurely or surrender operational details. The corporation must be able to acquire broadcasting rights and creative content without being required to disclose negotiating positions or strategy. In this respect, arm’s-length public broadcasters differ from government departments. That is why other parliamentary democracies protect these broadcasters with exclusions. Since the CBC was made subject to the Access Act, the majority of Access requests to the CBC have come from one media competitor seeking information that would often enhance its competitive position—such as the salaries of top talent or an Olympic bid amount. We fear that far from being an exercise in accountability, Bill C-461 would weaken the public broadcaster and strengthen the hand of media competitors. This is hardly the best way to serve accountability or journalism in the public service. 

IT’S NOT NEEDED CJFE argues that this bill is simply unnecessary. Contrary to the claims of the bill’s supporters, there is no longer a lack of clarity about the existing section of the Access law concerning the CBC. That section (68.1) was clarified by the Federal Court of Appeal in late 2011 and since then appears to be working without problems and to the satisfaction of both the CBC and the information commissioner. In fact, the commissioner recently awarded the CBC an “A” grade for its timeliness when answering Access requests. So the CBC appears to be improving its accountability to taxpayers through Access. By contrast, the wording of Bill C-461’s proposed exemp24 CJFE REVIEW 2013

*For more, see CJFE’s position paper on Bill C-461 at cjfe.org/bill-c-461.

DALE CUMMINGS (CANADA) / INTERNATIONAL EDITORIAL CARTOON COMPETITION OF THE CANADIAN COMMITTEE FOR WORLD PRESS FREEDOM (CCWPF) 

WHAT’S AT STAKE


By Philip Tunley

Free Expression

An End to Police Posing as Journalists? Update on legal action against OPP launched its Charter application against the Ontario Provincial Police for using the tactic of police posing as journalists, the proceedings will go before a judge this summer.The case pits the media’s free expression interests against the OPP’s investigative activities. CJFE started the legal action after written requests to the Ontario government and OPP commissioner to end the practice failed to get results.The CBC and RTNDA Canada joined CJFE in bringing the case forward. The OPP was selected as the respondent after a public inquiry, court proceedings and news reports revealed it used this technique at least twice, at Aboriginal protests involving the Ipperwash land claim in 1995, and at the Day of Action blockade of road and rail lines by Mohawk activists at Tyendinaga in 2007. Mohawk leader Shawn Brant was added as an intervenor in the case in 2012, supporting the media position. Leading journalists have filed affidavits to illustrate how this police practice interferes with the relationship between journalists and their sources, and how it undermines public trust of journalists, particularly that of marginalized groups whose activities engage police attention, such as protestors, sex trade workers and prison inmates. Their unique experiences and views and their reliance on the media to bring their stories and perspectives to a mainstream audience, make them particularly vulnerable to this police tactic. The free expression interests of all participants—of the media in news-gathering, the sources in getting their message out and the public in learning about important matters—suffer equally from the distrust created by this police practice, and it increases the risk of physical harm to journalists who may be thought to be police. CJFE and its co-applicants also point out that free expression is not the only right or freedom at stake. When suspects in a police investigation are tricked into saying things or giving police documents intended for a journalist “in confidence,” the suspects’ fundamental rights to remain silent and to be free from unreasonable search and seizure are infringed. The recent use of the tactic to target Aboriginal groups also raises concerns about discrimination. In response to this application, the OPP is raising the public interest in law enforcement. This involves producing documents and presenting witnesses about the OPP’s investigative objectives and methods—which they typically go to some lengths to keep secret. It raises questions about who is a journalist; whether distinctions should be drawn between officers assuming a detailed undercover persona as a journalist and a plainclothes officer taking a camera among the crowd of media at a protest; and whether there are circumstances, such as a hostage-taking, where this technique might be justified.

CINDERS MCLEOD

HREE YEARS AFTER CJFE

Evidence assembled by CBC provides insights into the practices of other police forces. Some, particularly in the U.S., strictly forbid the practice; others say they have never used it, but won’t rule it out; some, like the OPP, acknowledge they have and will continue to do so; and others simply won’t say. Since the case seeks a declaration that the practice violates the Canadian Charter of Rights and Freedoms, it could go all the way to the Supreme Court, in which case a decision in favour of the media would impact all Canadian police forces. This case has been a significant undertaking for CJFE and its co-applicants. It required the dedicated effort of many people to assemble evidence to support the case, and collaboration is required to challenge the OPP’s response. The case must be decided by the Ontario Superior Court before appeals can proceed to the Ontario Court of Appeal and the Supreme Court. This is quite a departure from the usual case, in which CJFE simply intervenes in a free expression dispute between other parties, once it reaches the appeal courts. The application’s central objective is one that every journalist recognizes. Allowing police to masquerade as journalists conscripts the practice of journalism in aid of law enforcement, and thereby undermines public confidence in the media. It interferes with journalists’ ability to gain the confidence of sources and get at the truth, especially in situations involving public protest or non-mainstream communities. In tense protest situations, it potentially puts journalists at an increased risk of violence. CJFE and its co-applicants are asking the Court to end this police practice, because it severely infringes free expression rights not only of the media, but also of the sources they seek to engage and the general public they seek to inform.  Philip Tunley is a lawyer and a CJFE Board member.

CJFE REVIEW 2013 25


Impunity

The Chill of Impunity Worldwide problem poses challenges for free expression community

I

MPUNITY, as

it relates to free expression, thrives in societies that allow people and organizations to threaten and harm those who exercise their right to free expression—including journalists, bloggers, activists and artists. The threats often extend to their families, friends and colleagues. “Impunity exists when crimes committed against journalists and media workers go uninvestigated and unpunished,” says Heather Orrange, campaigns and advocacy specialist with IFEX, the global network of free expression organizations. “Such crimes range from intimidation and threats to attacks and murder. A culture of impunity silences free expression in all its forms.” Impunity makes people afraid to question authority. Corruption and abuses of power go unchecked, leading to more oppression, injustice and violations of human rights. “When no one is held responsible, and everyone knows where the threats are coming from, there’s an incredible chill,” says Annie Game, executive director of CJFE and IFEX. “Writers stop writing. Reporters stop reporting. People stop expressing themselves, and that diminishes democracy.” “It leads to further violations,” adds Rachael Kay, IFEX manager. “Where people in society learn that nothing will happen if they intimidate or threaten others, it becomes an accepted form of silencing people.” Sometimes, those ordering the silencing are involved in criminal or corrupt organizations. But in some countries, it is the people in power behind the threats, and they are liter26 CJFE REVIEW 2013

By Heidi Turner

ally getting away with murder. UNESCO’s director-general underlined the magnitude of the problem in a report to a meeting of the organization in March 2012. The report, The Safety of Journalists and the Danger of Impunity, stated, “the primary aim of guaranteeing the safety of journalists, and striving to combat impunity of the perpetrators of crimes committed against journalists, are both essential to preserving the fundamental right to freedom of expression, ensured by Article 19 of the Universal Declaration of Human Rights, as well as to promote democracy.” Many of the crimes cited in the UNESCO report not only go unprosecuted, but they are not even investigated. In those cases where charges are laid, they are often filed against the person who committed the murder but not those who ordered the assassination. Although many people think of impunity as a problem only affecting thirdworld countries and perpetrated by oppressive regimes, it is an international issue—and it has happened in Canada. In 1998, Tara Singh Hayer, publisher of Indo-Canadian Times, a weekly Punjabi-language newspaper, was shot to death at his Surrey, B.C., home; 14 years later, his murder remains unprosecuted. He is the only journalist in Canada to be assassinated for his work. For several years, Hayer had been the victim of threats and intimidation. In 1986, just seven months after the bombing of Air India Flight 182—an incident Hayer reported on—a bomb was left on his paper’s doorstep. It was defused with no injury. In August 1988, a week after he wrote an article about the Air India bombing—a story that implicated Canadian Sikh separatist group Babbar Khalsa International (BKI)—Hayer was shot. One bullet hit his spine, paralyzing him. The shooter was sentenced to 14 years in prison, but Hayer believed someone else ordered the attack. If he was right, that person has not been brought to justice. In 1998, Hayer was supposed to testify as the Crown prosecution’s witness against Ripudaman Singh Malik and Ajaib Singh Bagri, BKI members alleged to have planned the bombing

of Air India Flight 182 and a bombing at a Japanese airport. However, Hayer was killed on Nov. 18, 1998. Although many people connected to Hayer believe someone has information about his murder, they say no one will come forward because of the fear that they or their loved ones will be in danger. Since 2000, CJFE has honoured Canadian journalists who risk their safety with the Tara Singh Hayer Memorial Award. Honourees include Michel Auger, who was attacked after writing about the biker war in Quebec; GuyAndré Kieffer, who disappeared in Abidjan, Ivory Coast, after receiving death threats; Zahra Kazemi, who died in an Iranian prison due to injuries inflicted during an interrogation; and RadioCanada’s television program Enquête, which won in 2012 for its investigation of corruption and Mafia involvement in Quebec’s construction industry. In response to impunity, IFEX coordinates the International Day to End Impunity (IDEI), held each year on Nov. 23. Launched in 2011, the goal of the day is to raise awareness about the factors that create and sustain a culture of impunity, while encouraging citizens around the world to take action. The date marks the anniversary of the 2009 Ampatuan massacre in the Philippines, in which 58 people, including 32 journalists and media workers, were murdered. So far, no one involved in carrying out the massacre has been brought to justice. Although impunity often refers to the silencing of journalists and media workers, a culture that targets journalists will target any citizen who speaks up. “Where there is no accountability for such violence, the whole culture suffers,” Game says. “It is not a true democratic culture if this is happening. Impunity is so pernicious and it’s very complex. We can talk about journalists and the culture of impunity, but there are artists, teachers and lawyers that this happens to. How can you participate in a meaningful way in democracy with this going on?”  Heidi Turner is a freelance writer in Abbotsford, B.C.


Courts

QUEBEC LEADS ON ANTISLAPP LAW

Free expression is at the heart of legislation protecting public participation

municipal election in Aurora, Ont., Mayor Phyllis Morris made a rather puzzling move for a seasoned politician: She launched a defamation lawsuit against several individuals connected to the Aurora Citizen (auroracitizen.ca), a website set up as a forum for individuals to discuss local politics, where many commenters had been critical of her. After Morris lost the election, she dropped the suit without explanation. Two of the defendants, Richard Johnson and William Hogg, decided to sue for legal costs (this is often referred to as a “SLAPPback,” though it typically occurs while the original lawsuit is underway). They argued that Morris’s lawsuit was the very definition of a SLAPP, or a strategic lawsuit against public participation—in other words, the use of a lawsuit against an individual or group(s) who are speaking out on an issue of public interest. Ontario Superior Court Master Thomas Hawkins agreed. “In my view, Mayor Morris wanted to hit Johnson, Hogg and Bishenden quickly and hard, in order to silence them as her critics sooner rather than later in the weeks leading up to the October 25, 2010, municipal elections,” he wrote in his Oct. 22, 2012, ruling. “I have therefore come to the conclusion that this action is indeed SLAPP litigation.” N THE HEAT OF THE 2010

28 CJFE REVIEW 2013

The court ordered Morris to pay the legal fees. But many cases do not end so well for the defendant. Though there are provisions in common law that should, in theory, be able to deal with SLAPPs, research shows that they are poorly used and largely ineffective, and courts have been reluctant to apply them. In fact, in an earlier motion, another judge had declined to define the Morris v. Johnson case as a SLAPP action. Specific anti-SLAPP legislation is key to protecting free expression and public participation. But there is no such law in Ontario—or any other province or territory, with the notable

exception of Quebec. Nearly five years ago, the Quebec National Assembly’s special consultations on Bill 99—the first draft of the province’s anti-SLAPP legislation— were described by one participant as an “historic debate on freedom of expression and citizen participation in public debates.” Indeed, difficult questions were raised surrounding: ■ The growing role of the justice system in public controversies; ■ The individual’s responsibility in speaking publicly and taking public action; ■ Frontiers of, and conciliation between,


GEMENA COMMUNICATION/ISTOCKPHOTO

fundamental rights and freedoms (e.g., balancing freedom of expression and the right to reputation, or the right of the plaintiff to address the court versus the prompt dismissal of SLAPPs); and, ■ The destructive effects of having to endure legal proceedings over an extended period of time. The complexity of these issues certainly has something to do with the fact that no other province or territory has enacted anti-SLAPP legislation. (Bills have unsuccessfully been proposed in the legislatures of New Brunswick, Nova Scotia and Ontario, and an antiSLAPP bill passed in British Columbia in April 2001 was repealed just four months later.) Also at issue is that SLAPPs closely resemble ordinary tort lawsuits (suits involving some form of injury), making them difficult to identify and quantify—it’s tough to say how frequently they occur, what their impact is and the extent to which public and private resources are wasted in proceedings, according to a 2010 study by Michaelin Scott and Chris Tollefson out of the University of Victoria. Elected representatives at all levels of government have been slow to recognize that the magnitude of this problem justifies legislative change. In 2008, Quebec’s then–minister of justice, Jacques Dupuis, wanted to get ahead of the curve. He proposed Bill 99, “An Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate,” in order “to move on an extremely important social issue before it becomes a social problem.” This desire to be pro-active rather than reactive to SLAPPs was unanimous among the National Assembly’s political parties, and the groups invited to participate in the public consultations largely agreed, with the notable exceptions of private industry lobbies and a skeptical Quebec law bar. Bill 99 died when an election was called late in 2008, but it was reintroduced as Bill 9 by newly elected member Kathleen Weil following the December 2008 election. The adoption of Bill 9 was partially a result of the high regard for free expres-

By Normand Landry

sion and public participation in Quebec. In fact, the preamble to the bill illustrates this rather effectively: AS it is important to promote freedom of expression affirmed in the Charter of human rights and freedoms; AS it is important to prevent improper use of the courts and discourage judicial proceedings designed to thwart the right of citizens to participate in public debate; AS it is important to promote access to justice for all citizens and to strike a fairer balance between the financial strength of the parties to a legal action. The insertion of such a preamble is rare in Quebec legislation. In addition to supporting the right to free expression and underlining the deterrence of misuse of the courts, the preamble was also intended to provide the courts with guidance in interpreting the articles it adds or modifies. Ultimately, the Act provides the courts with more adequate power to identify and deal with abusive proceedings, including: ■ Specifying what may constitute an improper use of legal procedure and allowing the courts to promptly dismiss a proceeding that is improper (Articles 54.1 and 54.3). ■ Authorizing the reversal of the burden of proof if the improper use of procedure is summarily established (Article 54.2). ■ Allowing the courts to order the payment of a provision for costs, declare that a legal action is improper, condemn a party to pay the fees and extrajudicial costs of the other party and order a party to pay punitive damages (Articles 54.3 and 54.4). ■ Allowing the courts to order the directors and officers of a legal person who took part in a decision to make an improper use of procedure to personally pay damages (Article 54.6). Legal scholars have studied cases in the two years from the date the Act came into effect (June 4, 2009 – June 4, 2011), and they have found that seven cases could be considered SLAPPs. But the courts remain reluctant to intervene and reject cases that are likely abusive at an early stage, and are interpreting the new law in a conser-

vative way. Civil society organizations, led by la Ligue des droits et libertés and le Réseau québécois des groups écologistes (RQGE), have called for the law to be revised in order to correct current limitations—as is mandated in Article 54.6.7 of the Act. Following the assent of Quebec’s antiSLAPP law, things are looking up in Ontario. An anti-SLAPP advisory panel was struck, and after consulting with civil society organizations, its October 2010 report concluded that while the current law addresses abuse of process related to frivolous lawsuits, the remedies were ineffective. The panel was “persuaded that threats of lawsuits for speaking out on matters of public interest, combined with a number of actual lawsuits, deter significant numbers of people from participating in discussions on such matters.” It recommended the government promote public participation by “enacting targeted legislation.” The panel noted that new anti-SLAPP measures should not focus on the intentions of the person filing the suit (which is difficult to establish in court), but on the effect that the legal action is likely to have on discourses of public interest. A private member’s bill, Bill 132, the Protection of Public Participation Act, passed first reading in the Legislative Assembly of Ontario in October 2012. While more than half of American states have enacted some sort of antiSLAPP legislation, Canada still lags behind. SLAPP suits have been shown to directly threaten participative democracy by making the very institution charged with the protection of basic civil liberties complicit in their violation. This is an issue that urgently requires public attention and organized, vigorous political action.  Normand Landry is a professor at Télé-université (TÉLUQ, Université du Québec) and a researcher at the Interdisciplinary Research Group on Communication, Information, and Society (GRICIS). His work focuses on social movement theory, law, media and communication governance, communication rights and democratic communications.

CJFE REVIEW 2013 29


Cross-Canada Reports

Cross-Canada FREE EXPRESSION REPORTS british columbia

alberta

saskatchewan

■ Poor

■ Freedom

■ Sixty-eight-

In September 2012, the B.C. Freedom of Information and Privacy Association filed a complaint with Information and Privacy Commissioner Elizabeth Denham, arguing that the province may be failing to keep proper records. The organization suggested this was done so that there would be no need to fulfill access to information requests. The commissioner then went on record highlighting the province’s overall failure to respond to Freedom of Information requests, noting that the premier’s office fared worst of all departments, with a response of “no records found” returned for 45 per cent of requests. The commissioner highlighted the need for proper record keeping to ensure adequate access to information.

After 11 years, Alberta’s Court of Appeal dismissed the case of Lund v. Boissoin, regarding an inflammatory, homophobic letter to the editor written by Reverend Stephen Boissoin and sent to a local newspaper in June 2002. A 2008 decision by the Alberta Human Rights and Citizenship Commission upheld Calgary professor Darren Lund’s claim that Boissoin violated the hate speech clause in the province’s Human Rights, Multiculturalism and Citizenship Act. In 2009 however, Boissoin appealed his case in the courts, where a Queen’s Bench judge overturned the ruling. The Alberta Court of Appeal dismissed the case on the grounds that the verdict violated Boissoin’s right to free speech. Presiding over the Lund v. Boissoin decision, Justice Clinton O’Brien concluded: “Freedom of speech does not just protect polite speech.”

record keeping leads to failure to respond to information requests

30 CJFE REVIEW 2013

of speech on trial

month ATI request causes a stir In January 2013, Saskatchewan Information and Privacy Commissioner Gary Dickson called the province out on its poor record in responding to Freedom of Information requests, highlighting a case that has been in the system for more than 68 months. Calling the delay “unconscionable,” the commissioner expressed concerns that Saskatchewan was failing to live up to promises of increased transparency and accountability.

manitoba

■ Company

halts protest roadblocks Mining company Hudbay won an injunction on March 20, 2013, preventing the Mathias Colomb Cree Nation from holding future protests involving blockades at the company’s Lalor Lake

development site, where protests had been held. Hudbay is suing the First Nation over rallies its members held on Jan. 28, 3013, as part of the Idle No More national day of action and on March 5 against the company’s development project. Chief Arlen Dumas argues that Hudbay’s injunction violates freedom of expression laws and the First Nation’s treaty right to protest.

ontario

■ Information

and Privacy Commissioner asks for councillors to be included in freedom of information laws Ann Cavoukian, the information and privacy commissioner of Ontario, asked the province in February 2013 to amend municipal Freedom of Information legislation to make city councillors’ records accessible to the public. The communications of most elected officials in Canada are not covered by access to information laws, so this change would be a significant move towards greater transparency in Canadian politics.

quebec

■ Freedom

of assembly under attack In February 2012, Quebec students took to the streets protesting proposed increases to postsecondary tuition. As the protests grew, the National Assembly of Quebec attempted to quell them by passing legislation on May 18, 2012, imposing severe restrictions on the right to public assembly in the province. A coalition of Quebec student groups filed a legal challenge to the bill, but the Quebec Superior Court denied the injunction. Montreal also passed a bylaw that restricted individuals from wearing a mask during a protest. In objection to Bill 78’s passage, Quebec residents joined the students on the streets with pots and pans in “manifs des casseroles” (pot and pan demonstrations). In the September 2012 provincial election, Charest lost his seat and Parti Québécois leader Pauline Marois became premier. Two weeks later, the Parti Québécois voted to dissolve the bill.


new brunswick

■ Push

for salary disclosure in Saint John Saint John councillor Greg Norton began a push in February 2013 for the City to publicly post the salary ranges for all public servants. The City of Fredericton began to post salary ranges for particular municipal jobs on its website after municipalities were folded into New Brunswick’s Right to Information and Protection of Privacy Act, and Norton wants Saint John to follow suit. He believes the move would be a positive step toward increasing transparency and access to information.

nova scotia

■ Media

coverage leads province to boycott legal proceedings The Government of Nova Scotia boycotted out-of-court hearings in the class-action lawsuit brought by 140 former residents of Nova Scotia’s Home for Colored Children after Halifax newspaper The Chronicle Herald announced it intended to cover the proceedings. The provincial government is arguing that media

Compiled by Laura Tribe and Amy Johnson

should not be present at these hearings, but the law firm representing the claimants is arguing that out-of-court proceedings are a matter of public record. The Chronicle Herald’s lawyer argues that the newspaper serves as a proxy for the public and therefore has a right to be present at any stage of the court process.

prince edward island

■ Provincial

legislature still exempt from ATI In February 2013, the CBC was denied its request for details of the P.E.I. legislature’s spending. As the legislature is exempt from the province’s Freedom of Information and Protection of Privacy Act, it remains unclear how the $6-million budget is spent. Items under this budget include the offices of the speaker, members of the Legislative Assembly the conflict of interest commissioner and the information and privacy commissioner. There is no appeal process in the P.E.I. access to information system.

This report has yet to be translated to legislation. newfoundland

&

labrador

■ Draconian

law restricts access to information In June 2012, Newfoundland passed Bill 29, an amendment to the province’s Access to Information legislation. This grants officials the ability to refuse frivolous or trivial ATI requests and those considered to be in bad faith, and includes increased exemptions for cabinet records and cabinet ministers’ briefing notes for five years. The Canadian Association of Journalists called the changes “draconian,” and Newspapers Canada described the bill as Canada’s “biggest setback” in access to information in 2012.

■ Defamation

suit for protest placards In July 2012, Watson Lake resident Vianna Abou organized a protest that called for the resignation of Chief Liard McMillan and economic development officer Alex Morrison of Liard First Nation due to an alleged lack of fiscal transparency and accountability. In September 2012, Chief Liard and Morrison launched a defamation suit against Abou over accusatory placards posted at the event, and for calling officials “bullies” and “dictators” in media interviews. Abou filed a statement of defence in December 2012, claiming that her statements were “fair comment on a matter of public interest.”

yukon

■ Long-awaited

report on whistleblower protection In December 2012, an all-party committee produced a report on ways to implement whistleblower protection for the territory’s government employees. The report, which took 10 years to produce, recommends protection from threats or reprisals for whistleblowers.

nunavut

■ Mandatory

training for radio announcers Beginning as early as June 2013, radio announcers in Nunavut will be required to take a training course before going on air. The requirement resulted from numerous complaints from community members to mayors’ offices and the Canadian

Radio-television and Telecommunications Commission (CRTC) that certain broadcasts featured slanderous and obscene language.

■ Access

to the Internet Quality Internet access is a challenge for Canada’s northern communities, as connections remain slow and unreliable. In Nunavut, the government instituted a ban on Facebook and YouTube in schools to save on limited bandwidth. Similarly, a lack of adequate bandwidth caused Yukon College to cancel its video conference classes in smaller communities, despite the school’s attempts to increase its use of technologies to attract more students. 

Special thanks to CJFE’s Regional Monitors for submitting these stories and tracking important free expression issues across the country. Join CJFE as a Regional Monitor to help ensure we’re covering the issues in your area! Email cjfe@cjfe.org for more information.

CJFE REVIEW 2013 31


Digital Issues

Bill C-30: An Autopsy Dissecting the problems that plagued “The Spying Online Bill”

B

introduced by Minister Vic Toews on Feb. 14, 2012, was a Valentine’s Day present no one wanted to unwrap. From privacy and civil rights advocates, to ordinary people fearing that government officials would poke their noses into Canadians’ online affairs, to Internet service providers (ISPs) balking at the high cost of implementing a cybersurveillance program, everyone just loved to hate Bill C-30, the Protecting Children from Internet Predators Act. After a year-long uphill battle, jubilation ensued when federal Justice Minister Rob Nicholson pronounced it dead on Feb. 11, 2013. The controversial bill would have allowed police to access the IP addresses and other information of Internet subscribers without a warrant. It also would have obliged ISPs to keep track of the online activities of Canadians. Many critics, and the 2011-2012 CJFE Review of Free Expression in Canada, warned of the dangers embodied in the proposed law, such as its overbroad reach and susceptibility to abuse. Causing a majority government to

markedly change course is a rare victory, one brought about in part by a very specific set of circumstances and the nature of the proposed legislation. This victory also owed much to an unusual agreement among many activists from across the political spectrum and civil society, and holds important lessons for future fights for freedom of expression and civil rights.

ILL C-30,

THE GOVERNMENT’S GAFFE The federal government’s face of the bill, Public Safety Minister Vic Toews, contributed to its death. A legislative proposal like Bill C-30, which threatened to invade the day-to-day online activities of regular Canadians, predictably caused a significant public outcry. An astute communications strategy would have kept the message subdued and would have avoided anything too aggressive. Yet, while defending Bill C-30 in Parliament, Minister Toews uttered the now-famous line: “either stand with us or stand with the child pornographers.” It became a slogan that, in the eyes of many, embodied the Harper government’s divisive mode of governance and its propensity to stifle opposition by appealing to the fears of Canadians. That this was not an unfortunate slip of the tongue, but part of a deliberate campaign to present the bill as a tool to fight abhorrent crime, is evidenced by the last-minute change of its name: Reportedly through a direct intervention of the Prime Minister’s Office, the Lawful Access Act was

renamed the Protecting Children from Internet Predators Act just minutes before its presentation in the House of Commons. The aggressiveness of the government’s communications regarding the bill galvanized an immediate wave of protests, and it was not long before the online community gave it the moniker “The Spying Online Bill.” ONLINE OPPOSITION TO BILL C-30 The controversial proposal provoked a massive online backlash, spanning the blogosphere, Twitter and other social media and online mainstream media. Perhaps the most prominent was the campaign by OpenMedia, a grassroots organization that advocates for open Internet. It was credited with coining the “Spying Online” nickname. Impressive as the sizeable and forceful Internetbased reaction was, we still need to ask: How did it succeed while other vigorous online campaigns have failed? (Remember the opposition to the government’s decision to discontinue the long-form census?) At least one distinguishing characteristic of the campaign deserves mention. We often talk about “taking online” opinions, criticisms, political campaigns and even elections and revolutions. In this case, the Protecting Children from Internet Predators Act impacted the most digitally influential and active Canadians. They already had the know-how, the infrastructure and the ammunition in place, and the government stood little chance.

A BRIEF TIMELINE OF BILL C-30 ■ MARCH 2011 The federal and all provincial and territorial privacy commissioners sign a letter to the deputy minister of public safety outlining their concerns with Bill C-52, the Investigating and Preventing Criminal Electronic Communications Act—the predecessor of Bill C-30. Bill C-52 later dies on the Order Paper.

32 CJFE REVIEW 2013

■ JUNE 2011 OpenMedia launches its “Stop Online Spying” campaign. ■ FEBRUARY 2012 Bill C-30 is introduced as the Protecting Children from Internet Predators Act. While defending the bill in Parliament, Public Safety Minister Vic Toews infamously says: “He can either stand with us or with the child pornographers.”

Canada’s online community is galvanized into action. ■ APRIL 2012 The Supreme Court of Canada’s ruling in R v. Tse outlines a narrow legal scope for accessing private information without a warrant. ■ DECEMBER 2012 The National Post publishes Ontario Privacy

Commissioner Ann Cavoukian’s highly critical op-ed on Bill C-30 and the relationship between law enforcement and privacy. ■ FEBRUARY 2013 In a surprise about-face, federal Justice Minister Rob Nicholson announces Bill C-30 will not proceed due to public opposition.


SEAN KILPATRICK/CP

THE SUPREME COURT RULES AGAINST WARRANTLESS SEARCH AND SEIZURE A probable contributory reason for the government’s decision to abandon Bill C-30 was the Supreme Court of Canada’s (SCC) ruling in R. v. Tse, which asked the legislature to amend the wiretap provisions of the Criminal Code in order to bring them in line with the Charter. Justice Minister Rob Nicholson, in fact, pronounced Bill C-30 dead at the same time he announced Bill C-55, the Response to the Supreme Court of Canada Decision in R. v. Tse Act. While not directly related to Bill C-30, R. v. Tse sent a message that the circumstances in which the government could access the private information of Canadians without a warrant and without violating the Charter would be quite limited. The case involved an allegedly kidnapped man making calls to his daughter, and the SCC considered the constitutionality of the emergency wiretap provisions under Section 184.4 of the Criminal Code. The provisions allow peace officers to intercept telecommunications without prior judicial authorization and without the party’s consent when this is necessary to prevent serious and imminent harm. The SCC concluded that the interception without a warrant was not unconstitutional as such, as it was allowed only in “exigent circumstances,” and that it would be unrealistic to expect police to obtain a prior warrant in cases of extreme urgency. However, the Court found that the lack of requirement to provide notice to implicated parties violated their right to be free from unreasonable search and seizure under Section 8 of the Charter, and gave Parliament one year to amend the law, which the government did with Bill C-55. The impact of R. v. Tse on the fate of Bill C-30 did not stem from the specific findings of unconstitutionality in the ruling, as Bill C-30 actually called for the provision of notice after the interception of the content of Internet communications (for which it also required judicial

By Radostina Pavlova

authorization). The problem lies, rather, in the discrepancy between the narrow legal scope for accessing private information without a warrant, as outlined by the SCC, and the very broad power that Bill C-30 granted to police to obtain IP address information without a warrant and in non-emergency circumstances. CRITICISM FROM PRIVACY AND INFORMATION COMMISSIONERS Bill C-30 met with the criticism of the majority of privacy and information commissioners across Canada. In a 2011 letter, they objected to the changes proposed by Bill C-52 (as well as C-50 and C-51), which were predecessors of Bill C-30 (they died on the Order Paper). The federal Office of the Privacy Commissioner (OPC) issued an alarmed reaction on the day after Bill C-30 was tabled. The federal watchdog has also expressed concerns regarding its constitutionality. In addition, the OPC’s Feb. 13, 2013, statement on the scrapping of the bill reminded Canadians that, far from being an innocuous piece of information comparable to a listing in a phone book, an IP address can be the key to painting a detailed picture of an individual’s life. Such demystifying of the legal and technical jargon to reveal the practical impact of the legislative changes is a crucial component of any advocacy campaign seeking to garner public support. Provincial commissioners’ voices also resounded loudly in opposition to the bill. Ontario’s com-

missioner, Ann Cavoukian, called it “one of the most invasive threats to our privacy and freedom,” and launched a dedicated website (realprivacy.ca) for Canadians to write to their MPs in protest of the bill. THE CHALLENGES AHEAD We should commend the blogging, tweeting and speaking up by Canadians who said, “Not so fast, Minister.” But, without diminishing the feat of the advocates who fought to have Bill C-30 scrapped, this was a relatively easy challenge compared to those that lie ahead. Above all, the proposed law would have affected a great number of individuals, in a serious, direct and easy-to-understand manner. However, many other obstacles to free expression are not as obvious in the dangers they pose, and fighting them is a much tougher sell to the public. Whether campaigning to update Canada’s outdated privacy and access to information laws, strengthening the inadequate protection accorded to whistleblowers, or fighting future legislation that will seek to achieve the goals of Bill C-30 in a less invasive manner, the challenge for civil rights advocates will be to join forces and send a clear message about these dangers to our much-cherished freedoms, and once again inspire Canadians to effect change.  Radostina Pavlova is a J.D. candidate at the University of Toronto’s Faculty of Law.

CJFE REVIEW 2013 33


Courts

A STEP CLOSER TO OPEN JUSTICE Electronic communications from the courtroom

34 CJFE REVIEW 2013

N THEORY, our

courts are open to the public. We can sit in on public hearings and tell anyone we know what’s happened there. Our ability to do that is not a gift from the authorities, offered to us as long as we’re good; it’s every citizen’s constitutional right. Knowledgeable citizens are more informed electors, and that is essential to a properly functioning democracy. In principle, judges should facilitate public communication of public information about court proceedings. In practice, they’ve been slow to use modern technology to do that. Media reporting, for its part, is not a substitute for citizen access, but a conduit for it (and an important supplement to it, given the difficulties most citizens have attending court in person). Nevertheless, Canadian courts have hesitated to follow the basic concept of citizen access through to its logical modern conclusion: to let the public hear and see court proceedings for themselves through radio and television. For the past few years, we’ve had ondemand webcasts of proceedings of the Supreme Court of Canada, and occasionally some provinces’ highest courts of appeal, and over three decades we’ve had routine electronic coverage of public inquiries and even occasional coverage of trial proceedings. But we have yet to see routine electronic coverage of trials, due to fears of potential effects on testimony (not well founded in Canadian experience), and an absolute veto often granted to parties and witnesses to deny that coverage, with no requirement for specific judicial oversight and public interest accountability. While this debate continues its slow pace, the electronic landscape has dramatically changed. Millions of smartphones now connect us to each other. Smartphones are in everyone’s hands,

enabling us to communicate through text and good-quality audio and video. Courts may be able to ignore the wishes of a few reporters and media organizations to communicate electronically from court, but not the public at large. The spectacular growth of an electronically equipped population, and social media like Facebook and Twitter, have forced an answer, and courts have begun to respond. While speaking to students at Ottawa’s Carleton University in February 2012, Chief Justice Beverley McLachlin asked: “What will be the consequences for public understanding of the administration of justice and confidence in the judiciary? How can a medium such as Twitter inform the public accurately or adequately in 140 characters or less?” Twitter and other social media arrange public information for their users in timely and useful ways. While tweets are only 140 characters long, they can offer links to more complete information, a click away. A tweet is a means to an end. In September 2012, the Canadian Centre for Court Technology (CCCT) submitted a draft proposal on national guidelines, recommending that communication from courtrooms via handheld electronic devices be generally permitted, as long as users respect publication bans. Like others dipping into this subject, its proposal contains a ban on taking photos or videos, without any consideration of its merits or necessity. The response to Twitter in each province and territory varies widely. As of April 15, 2013, Quebec courts adopted a policy banning journalists from using electronic devices to communicate from court. Members of the public must keep their electronic devices turned off, while journalists (as well as lawyers and parties) can use electronic devices to silently receive communications and take notes, but


RYAN BALDERAS/ISTOCKPHOTO

cannot press “send.” The policy is absolute, but is based on a principle permitting judicial discretion to control order and decorum, so a judge could in exceptional cases permit electronic communication out of the courtroom. If judges are interested in accurate reporting, they will find this ban ultimately counterproductive. It encourages journalists to leave court regularly to communicate important new information on a timely basis, with the potential disruption of the coming and going inherent in that, and potential inaccuracies in their reporting because they miss key information. Courts in other provinces that have considered the subject generally permit electronic communication by journalists on a variety of terms. None of them is as permissive for the public as recommended by CCCT (with the exception, perhaps, of Newfoundland and Labrador, which does not restrict social media in courts). Before Quebec, the most recent provincial court policy to be announced on this subject was in Ontario (effective Feb. 1, 2013). The new Superior Court of Justice policy (“Protocol on the Use of Electronic Devices in the Courtroom,” ontariocourts.ca/scj/en/ policies/electronic-devices.htm) created a two-tier approach: those who can use electronic devices unless the presiding judge rules otherwise, and those who cannot unless the judge specifically permits it. “Media or journalists” (undefined) are included in a group of professionals and self-represented parties who can use electronic devices for live communication of text from court, unless the presiding judge orders otherwise. There are restrictions: the device has to be used in silent mode, in a discreet and unobtrusive manner; it can’t interfere with decorum or the operation of court equipment; it can’t be used as a phone; it can’t be used to transmit

By Daniel Henry

audio or video (due to restrictions in the Courts of Justice Act), though it can be used to record audio only for note-taking purposes; and publication bans have to be respected. This is a useful clarification for journalists in traditional media, but it is not a panacea. Members of the public cannot use electronic devices in the courtroom at all, unless the judge permits it. Presumptively barring members of the public from using these devices, without any specific justification in the circumstances, is contrary to basic openness principles. Requiring members of the public to ask a judge’s permission each time one of them wants to use a smartphone is impractical and unnecessarily hinders good note-taking and the accurate relay of public information to others. Everyone should respect publication bans, but the fact that some hearings have one is not a justification for a blanket presumptive denial of free expression. I suspect that judges will soon tire of dealing with applications for permission in routine cases. Courts will also tire of having to police citizens’

every use of a smartphone. There will also come a point when some citizens attending open court, perhaps as members or leaders of interested groups, will demand the right to record and transmit what happens there to pass on to their followers. Perhaps other citizens will unthinkingly start to record and even transmit audio and video from their smartphones, since they use them routinely for that virtually everywhere else. Rarely will any damage be done. One can only hope that judges will eventually become as comfortable as most of us already are with audio-visual information, and will focus their concern on specific audio-visual communication that may have a harmful effect in specific cases…and let citizens do what they’re entitled to do: monitor justice and, on the basis of the best information available to them, discuss the merits of the cases being heard and the judgments rendered in them.  Media lawyer Daniel Henry was the recipient of CJFE’s Vox Libera Award in 2012.

CJFE REVIEW 2013 35


Digital Issues

Privacy, Free Expression & You Seven things you should know

O

the federal government announced that it would permanently kill the proposed Bill C-30, which had been largely criticized as a threat to Canadians’ digital privacy. Consumer advocacy groups like OpenMedia celebrated the death of the bill, and Ontario Information and Privacy Commissioner Ann Cavoukian called the bill’s defeat “a victory for privacy and for freedom.” With so much discussion about the influence of privacy on free expression, CJFE wanted to help Canadians better understand how these two issues relate to one another and impact your digital activities on a daily basis. In March 2013, CJFE held an online Q&A to help shed light on this complicated subject. Panellists Ann Cavoukian, Ontario’s information and privacy commissioner, and Wilf Dinnick, founding editor and Panellists: ■ Ann Cavoukian, CEO of OpenFile, shared their information and privacy insights. Jesse Brown, technology commissioner of Ontario, affairs critic for macleans.ca and @IPCinfoprivacy columnist for Toronto Life, mod■ Wilf Dinnick, founding erated the conversation. editor and CEO of OpenFile, @WilfDinnick Here are key takeaways about digital privacy in Canada, based Moderator: ■ Jesse Brown, technology on the Q&A and conversations affairs critic of macleans.ca with our panellists: N FEB. 11, 2013,

CONNECT

and columnist for Toronto Life, @jessebrown

1 PRIVACY PROTECTS FREE

EXPRESSION The connection isn’t always obvious, but your right to privacy is closely linked to your ability to freely express yourself. Without the ability to control what you say, and to whom, you would lose the comfort of freely associating, communicating and expressing yourself as you want. Fear of governments, corporations or others watching what you say also impinges on your comfort level with expressing yourself freely. 2 IT’S NOT ABOUT HAVING SOMETHING TO HIDE One of the counter-arguments that privacy advocates hear most often is, “If I have nothing to hide, I have nothing to fear.” But the issue isn’t secrecy—it’s control. You should have the right to decide how your information is collected, used and disclosed. The fight for privacy is about dignity, autonomy and the right to exercise significant control over your own person, your personal space and your personal information. 3 ANONYMITY IS IMPORTANT The debate about anonymity online is about more than whether or not real names should be required for posting comments. Whistleblowers and journalists’ anonymous sources need to be protected, and the 36 CJFE REVIEW 2013

By Laura Tribe

ability to track digital data makes this more important than ever before. If media outlets can earn their sources’ trust and ensure their protection, then sources may be more willing to come forward. 4 THERE ARE LAWS IN PLACE TO PROTECT PRIVACY In Canada, there are two main pieces of federal legislation that govern how your personal information is collected, used and disclosed. The Personal Information Protection and Electronic Documents Act (PIPEDA) regulates how personal information can be collected, used or disclosed by private sector organizations. Under this law, you have the right to access personal information about yourself that private organizations have collected, and to request that it be corrected if necessary. The Privacy Act is a similar piece of legislation that regulates the collection, use and disclosure of your information by over 250 federal government departments, and also allows you to request that your information be corrected.

5 MAKE INFORMED CHOICES ABOUT YOUR DIGITAL PROFILE

Social media platforms have become closely integrated into many people’s day-to-day lives. But no matter how much you think you know about Facebook, Instagram, YouTube or Twitter, do you know what information you’re giving up and how it can be used? It’s important to educate yourself about the user agreements you’re signing, and to recognize that choosing to use these platforms to speak and share your opinions may also mean forfeiting some of your privacy rights. Knowing what you’re agreeing to, and understanding what privacy you may be sacrificing in doing so, may help you decide where to draw the line between what you say and share online and what you keep to yourself. 6 YOUR CHOICES HAVE AN IMPACT How can you stop companies and organizations from infringing on your digital privacy? Remember that your voice matters. Tell companies that fail to respect your privacy that they can’t have your business, and let those who do respect your privacy rights know how much it matters to you. 7 KNOW HOW YOUR INFORMATION CAN BE USED You don’t have to be paranoid, but be cautious. If you’re not sure who has access to your information or how it’s being used, don’t post anything you don’t want made public. Use common sense and know that, in the wrong hands, your photos, conversations and personal information may be shared with a larger audience than you intended. For examples of ways your online profile can have real-life consequences, take a look at this interesting campaign from Amnesty International, scan your Facebook timeline and see what punishments you might have received in different countries around the world at trialbytimeline.org.nz. To learn more about how the violation of an individual’s privacy can affect free expression, read “Under the Microscope” on page 16.  Laura Tribe is CJFE’s web and social media editor.


By Paula Todd

Free Expression

Keeping Us Connected OpenMedia founder Steve Anderson fights for online freedom

“W

E WILL NOT be proceeding with Bill C-30

COURTESY OF OPENMEDIA

... including the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems.” —Justice Minister Rob Nicholson, February 2013 Steve Anderson and his small team of OpenMedia Internet freedom advocates in Vancouver could scarcely believe it, despite the fact they’d worked hard for the precise result: the federal Conservative government was backing down on its proposed Internet “spying” law, Bill C-30. “We won!” Anderson announced on the organization’s website, OpenMedia.ca, giving credit to the growing group of Canadians and international allies who are rallying behind Internet freedom. Sitting in his sunny, sparse office in Vancouver’s Gastown during the winter of 2013, the often-serious Anderson allows himself a flicker of a smile. “That was a meaningful result,” he says. “They said we couldn’t do it. The fact we came together to defend our online rights and show government the power of public cohesion is proof it can be done again.” The success was another confidence boost for OpenMedia, which since 2008 has been bringing together diverse voices to protect online freedom in order to block profit-hungry media conglomerates, overreaching governments and trade partners from seizing greater control of the Internet. “The question is whether institutional and industry structures are going to evolve and become more participatory, or is the web going to become more like top-down bureaucracy,” says Anderson. “We are in the middle of that debate. Until we get through that and make a decision as a species, there will continue to be a lot of tension.” Anderson has intentionally put himself in the middle of this tension for years. “My first serious involvement started when large U.S. telecom companies began to speak in possessive terms about containing web content inside a controlled boxlike environment.” he says. In 2007, he founded Campaign for Democratic Media—an early iteration of OpenMedia—with the help of Robert A. Hackett, a professor at Simon Fraser University and a leader in online advocacy. OpenMedia’s mission is to “engage, educate and empower citizens to defend and advance their communication interests, values and rights.” Five years after the organization was founded, the stakes are higher than ever. “There’s a growing understanding that the possibilities of the Internet are

under threat and need to be Steve defended,” Anderson says. Anderson He sees his group as a conduit between citizens around the world who want the same online freedom. So far, Anderson says, the award-winning organization is making significant progress by: ■ Using its stopspying.ca campaign to help block “warrantless search” Bill C-30 and continue protest against Bill C-12, which could also threaten online use and personal privacy. ■ Putting up strong resistance to telecom conglomerate Bell in its proposed takeover of Astral Media, one of the largest media companies in Canada. ■ Connecting more than 500,000 protestors online via its stopthemeter.ca campaign to block fees for using the Internet. ■ Leading an international stopthetrap.net campaign against the Trans-Pacific Partnership (TPP) trade agreement, which could criminalize everyday Internet use. OpenMedia’s biggest focus at the moment is the “secret” bilateral negotiations over the TPP free trade deal, including proposed intellectual property rights that are so expansive, companies or governments could block citizens from using the Internet, expose personal information, shut down websites and even send users to jail for “everyday” use. Also in the spotlight: “backroom” deals between large telecom companies hoping to increase cellphone and online charges, Anderson says. And concern continues over Bill C-12, the Safeguarding Canadians’ Personal Information Act. Critics say the longstalled proposed legislation could make Canadians’ private information vulnerable, while doing little to force companies to report privacy breaches. Anderson worries many people still think their personal details just disappear into the ether of the Internet. “That’s why it is really critical that the government not have access to the trail, because that’s a very dangerous thing to empower anyone with. They need to have a just cause before they get that.” Far from being exhausted by the endless attacks on Internet freedom, Anderson says he feels buoyed by the surge of online citizenship; more than a half million people receive OpenMedia posts, many of whom are drawn in by its high-profile protest campaigns. “I can see the possibilities. The energy out there for an open and affordable Internet is powerful.”  Paula Todd is an investigative author, a lawyer and a journalism professor who sits on the CJFE Board and chairs its Digital Issues Committee.

CJFE REVIEW 2013 37


Digital Issues

A TANGLED WEB

Four Canadians talk with CJFE about defending digital rights

F

ROM PRIVACY to surveillance,

censorship to hacking, there are a number of ways that the use and governance of technologies can impact our digital activities. Around the world, people are working to defend digital rights. The four Canadians featured here are working on important projects related to the right to free expression online, and also raising public awareness about this critical issue. CJFE talked to them about their projects, whom they’re watching and what issues they think should be on your radar in the coming year.

GABRIELLA COLEMAN

Wolfe Chair in Scientific and Technological Literacy in the Art History and Communication Studies Department at McGill University, and author of Coding Freedom: The Ethics and Aesthetics of Hacking CJFE: What are your main

areas of interest? GABRIELLA COLEMAN: I am primarily focused on computer hackers of all sorts. Last fall I taught a class in computer hacking, and I am very interested in the issue quite broadly. One of my most recent interests is the issue of scientists being silenced, unable to talk about their research. And I am also quite interested in the overlap between copyright and free expression, and the issue of surveillance—more specifically, governments hiring firms to do surveillance or propaganda work for them. This last one has been reported on a bit more recently, but I believe is still quite under-covered. 38 CJFE REVIEW 2013

CJFE: What are you currently working on? GC: I’m currently writing a book on

Anonymous. The book will give a sense of where they came from, how they work and what is so interesting about them. I am hoping that it will be out by the end of the year, or very early in 2014.

(these tools are difficult to use), to journalists and activists. It’s incredibly important, and also very difficult. Finally, the capabilities to track and gather information, and then sift through it, are astronomical. Particularly what they can do with all of this information once they have used technology to process it.

CJFE: While we’re waiting for your

CJFE: Who else’s work should

book, what are some other great reads you could recommend? GC: Hacking the Future: Privacy, Identity, and Anonymity on the Web by Cole Stryker, and This Machine Kills Secrets: How WikiLeakers, Cypherpunks, and Hacktivists Aim to Free the World’s Information by Andy Greenberg.

we follow? GC: Christopher Prince, strategic policy analyst at the Office of the Privacy Commissioner of Canada, and Chris Soghoian, principal technologist and senior policy analyst at the American Civil Liberties Union.

CJFE: What are the most important

issues or obstacles related to free expression in the digital realm, either in Canada or globally? GC: A strong desire by the copyright industry to take websites down, or punish individuals for piracy. This is a big issue that could really impact nations and the international sphere. Using copyright as a penalty isn’t new—there is a strong history of this, and an incredible amount of resources copyright industries have put into doing this for more than 25 years. This is particularly of concern in the U.S., where they have international agreements pushing for these laws that impinge on free speech. The second issue is the surveillance of individuals online. It’s important to be thinking about how to make sure people are aware of the issues when they have minimal knowledge of basic technologies, layered with how can we provide encryption tools for security and privacy, with better usability Interviews have been edited for length.


Produced by Laura Tribe

MICHAEL GEIST Canada Research Chair in Internet and E-commerce Law at the University of Ottawa

CJFE: What are you working on? MICHAEL GEIST: I’m working on a num-

ber of different projects, but I’m currently focused on advocacy with the new counterfeiting legislation introduced in early March 2013, and broadcast and telecommunications issues with the CRTC, and issues of privacy. CJFE: What is the most pressing

free expression issue in Canada? MG: I think that the biggest concern, which actually cuts across a number of different other issues, is the role of intermediaries in our daily communication. Most of the expression that Canadians engage in online happens on someone else’s platform. The question of if your content stays up, when it will be taken down, and so on, is a huge concern—and is largely in the hands of others. This is particularly pertinent for content that someone else may not like, which can be challenged with any kind of legal action like defamation or libel. It’s a cross-cutting issue that may not seem directly related to free expression, but is critically important to ensuring that we have the space to safely express ourselves. CJFE: How is this different from

the role that intermediaries play in other countries? MG: In Canada, intermediaries don’t have the same protections that those in the U.S. enjoy—especially on basic speech issues. Complaints about a comment or post on a website in the U.S. will not be immediately held

“The question of if your content stays up, when it will be taken down, and so on, is a huge concern—and is largely in the hands of others.” —Michael Geist against the intermediary, and they are therefore quite likely to keep the content up—we don’t have that in Canada. Here, companies are more likely to pro-actively take the content down, fearing repercussions for hosting it. CJFE: If we don’t like it, can’t

we just choose to use other platforms? MG: That’s the approach that a lot of the big companies take online: if you don’t like it, go speak somewhere else. In some ways, this is true. There’s always another place you can get that content out, and you should be aware of the intermediaries you are using. But if your content is unavailable through a search platform, then it’s still effectively shrouded from most people. If you are unable to disseminate and propagate your content through the social web, it is another form of silencing or suppressing speech. CJFE: How important is public participation in making a difference in digital rights? MG: Public participation is critical,

but it goes far beyond just signing petitions. We need to demand more from individual politicians, organizations and companies, to all address these concerns and defend

our rights. Canadians also need to take the time to educate themselves to ensure they know their rights and are aware of what changes are being made to practices that impact them. CJFE: What should Canadians

be learning more about? MG: People need to know the limits of their ability to speak out. When choosing a platform such as Facebook, Twitter, Google or countless others, the decision has real implications for the kind of protection their speech might have. Depending on what they’re saying, and what they think might prove controversial, this needs to be factored into what people choose to post online. There is also value in people knowing the terms and conditions that accompany the products and services they’re signing up for, and the fact that some of those terms and conditions may sign over their rights. Finally, it’s important for people to know what they can do. There have been a number of great decisions made lately, particularly around mash-ups and remixes of music, which are just as important to know about. CJFE: Who do you regard

as leaders in this field? MG: Ron Deibert, professor of political science and director of the Canada Centre for Global Security Studies and Citizen Lab at the Munk School of Global Affairs, University of Toronto; Dwayne Winseck, professor of communication studies at the School of Journalism and Communication, Carleton University; and the Canadian Internet Policy and Public Interest Clinic. CJFE REVIEW 2013 39


CJFE: How important is public

JENNIFER STODDART

Privacy Commissioner of Canada CJFE: What projects is your Office

currently working on? JENNIFER STODDART: We have identified four top strategic priorities: information technology, public safety, identity management and genetic information. These priorities help guide our daily work—be it public education, audits, investigations or research. CJFE: What are the top three

pressing issues for your Office? JS: At the moment, I would say they are: law enforcement in an era of evolving communications technologies; the role of the individual in safeguarding privacy; and the importance of organizational responsibility in both the public and private sector. In the public sector, particularly in the wake of some recent alarming data breaches, we are reinforcing the need for vigilance in handling and safeguarding data through investigations but also by pro-actively conducting audits of government departments. In the private sector, PIPEDA [the Personal Information Protection and Electronic Documents Act] (our federal private-sector law), which only allows for non-binding recommendations and the threat of reputation loss, is not very effective against the quasi-monopoly of multinational, digital giants. As a result, I am of the opinion that this Office needs much stronger powers. 40 CJFE REVIEW 2013

participation in ensuring that privacy rights are being observed? JS: Public participation is very important—and we have seen that it can be very effective. Recently, the government announced that Bill C-30, which would have enabled law enforcement to gain warrantless access to subscriber information, such as an IP address, would not be proceeding in Parliament. When the bill was tabled last year, Canadians reacted strongly against it and expressed concern that it would have a significantly negative impact on their fundamental right to privacy. We were very pleased to see the government respond to these concerns, and I applaud the many, many Canadians who spoke out about their concerns with the bill and their deep attachment to their privacy rights. CJFE: What are the most important

issues or obstacles related to free expression in the digital realm, in Canada or globally? What steps need to be taken to solve them? JS: I am concerned about the misuse of the Internet for cyberbullying. The consequences for the victims of bullying over the Internet can be devastating—and recourse can be very difficult to obtain. Individuals need to develop their privacy literacy so that they have the skills to engage fully in the digital world, without compromising their personal information—or that of others. There are limits to what we should be posting about others. Some of the ways in which individuals can improve their privacy literacy include respecting the rights of others; understanding how to use privacy settings on social networking sites; realizing that personal information they

“I am concerned about the misuse of the Internet for cyberbullying. The consequences for the victims of bullying over the Internet can be devastating.” —Jennifer Stoddart

place online may wind up being used in ways they never imagined; and taking appropriate security steps, such as using strong passwords and adjusting privacy settings. CJFE: What is some of the

best work being done on these issues in Canada? What is one area where you see the need for more work? JS: I would like to see more research being done on the impact on privacy of using personal information in public safety and law enforcement initiatives. During the lengthy debate over Bill C-30, the federal government’s lawful access legislation, the bill’s proponents suggested this was akin to information in a phone book. But, unlike a telephone directory, information behind an IP address is not generally publicly available and can unlock doors to much more information about people. We’ve seen that an IP address can, in fact, provide a starting point to compile a picture of an individual’s online activities, including, for example, online services for which an individual has registered; personal interests based on websites visited; organizational affiliations; and even physical location.


WHO ELSE SHOULD WE FEATURE? Let us know! Email us at cjfe@cjfe.org.

SARAH MCKUNE

Senior Researcher at Citizen Lab at the Munk School of Global Affairs at the University of Toronto

implicating technologies be properly controlled? How can those controls be properly calibrated so they are not over- or under-inclusive, and how can they be effectively enforced? How can we increase transparency in the market for those technologies? And how can we best encourage companies in this market to incorporate human rights due diligence and accountability measures as a fundamental aspect of doing business in this space? CJFE: What are the most important

CJFE: What projects are you

currently working on? SARAH MCKUNE: I work on a few key projects, one of the most important of which is a research study on targeted cyber-threats against civil society organizations. This is an ongoing study of the spectrum of cyber-threats encountered by human rights groups, activists and others working on rights-related issues. Such threats— often politically motivated—include malware attacks delivered through compromised websites or attachments to socially engineered email; denialof-service attacks; and long-term cyber-espionage. I am also involved in research regarding the spread of surveillance and censorship technologies around the world, and possible methods to control their proliferation. For example, Citizen Lab recently released a report titled Planet Blue Coat: Mapping Global Censorship and Surveillance Tools, which documented the use of Blue Coat Systems devices capable of filtering, censorship and surveillance in numerous countries with questionable human rights records. This issue raises some difficult questions that I’m continuing to work on, such as: How can sales of rights-

issues or obstacles related to free expression in the digital realm, either in Canada or globally? What steps need to be taken to solve them? SM: One of my main concerns right now is the prevalence of cyber-espionage undertaken against civil society activists. We’ve seen a number of advanced persistent threats designed to exfiltrate sensitive information to an attacker over periods of time, as well as attacks that appear to incorporate reconnaissance against the target. But when the target is a civil society organization, such as a human rights NGO, it is unlikely to have the resources available to corporations or government officials to defend against or mitigate the attack. Yet public discourse to date has largely focused on cyber-espionage and attacks against industry and government, without fully addressing the critical civil society component. Dialogue regarding cyber-security and related norms that fails to integrate the civil society experience—how politically motivated cyber-threats compromise fundamental principles and human rights—will ultimately be skewed, and proposed solutions will likewise miss the mark.

CJFE: What work isn’t getting

done that should be? SM: We need increased awareness among individuals, companies and other entities of the scope and ramifications of Western involvement in the global surveillance and filtration industry. This is an industry that lacks transparency, and which, in many instances, has demonstrated a cavalier attitude toward the impact of surveillance and censorship technologies on human rights. Citizen Lab has sought to raise the issue with companies, governments and the public by documenting use of rights-implicating technologies when we find evidence of them. It’s time for investors and the general public to also call for greater company transparency, and governments to take action on enforcing transparency and accountability in the industry. CJFE: Who do you regard

as leaders in this work? SM: Important work has been undertaken by the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, who issued a groundbreaking report on applicability of international human rights law to the Internet, and who has contributed significantly to ongoing debate. And corporate social responsibility efforts— which will be essential to control of the surveillance and filtration technology industry—have also been greatly advanced through the work of John Ruggie, a professor and the former UN secretary-general’s special representative for business and human rights, who developed the UN Guiding Principles on Business and Human Rights.  Laura Tribe is CJFE’s web and social media editor.

CJFE REVIEW 2013 41


Appendix: Major Court Decisions 2012-13

Legally speaking FREEDOM OF EXPRESSION ISSUES were, once again, at the heart of

many court decisions in the past year as the courts grappled with the protection of journalistic sources, requests for publication bans and, most recently, the definition of hate speech. While journalists continued trying to bring stories into the public sphere, the subjects of the stories continued trying to place limits on what was said. Applications for publication bans, in the name of privacy protection, were often invoked and sometimes granted. Across Canada, journalists were able to convince the courts to resist demands for the release of the identities of confidential sources. And, in a landmark decision, the Supreme Court of Canada released its judgment in the case of Saskatchewan (Human Rights Commission) v. Whatcott, giving us a clearer definition of hate speech, but still leaving it within the purview of human rights tribunals. The following summaries were written by Anita Mielewczyk with input from fellow lawyer and CJFE Board Member Phil Tunley.

This section was made possible by a generous grant from Ad IDEM / Canadian Media Lawyers Association.

SUPREME COURT OF CANADA ■ Saskatchewan

(Human Rights Commission) v.William Whatcott, 2013 SCC 11

CJFE was one of more than 20 intervenors in this case, in which the Court examined the constitutionality and interpretation of the Saskatchewan Human Rights Code, impacting the interpretation and strength of hate speech legislation across Canada. Hate speech had been defined in the Saskatchewan Human Rights Code as language “that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.” This decision recognized that the language is overly broad and struck down the section that included “ridicules, belittles or otherwise affronts the dignity.” The Supreme Court ruled that these words “unjustifiably infringe” on freedom of expression and found them “constitutionally invalid.” Even though the Court agreed that “the quest for truth is an essential component of the ‘marketplace of ideas’ which is, itself, central to a strong democracy,” it found that “truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.” The Court recognized that media reporting would ordinarily not fall within the prohibitions under the Saskatchewan legislation: “expression that targets a protected group in the context of…news reports about hate speech perpetrated by someone else, would not likely constitute hate speech.” ■ canlii.ca/t/2d49q ■ See “Truth is Not a Defence” on p. 21 for more information about this issue.

42 CJFE REVIEW 2013


■ R. v. Tse, 2012

SCC 16, [2012] 1 SCR 531

This case from the Supreme Court of British Columbia looked at the constitutionality of wire-tap legislation in Section 184.4 of the Criminal Code. The case involved a man who had allegedly been kidnapped and had been calling his daughter. Police used Section 184.4 to get an urgent wiretap on his daughter’s phone. This section allows police to intercept private communications via a wire-tap without getting a warrant, if the officer believes it is absolutely necessary in order to prevent a crime that could cause serious harm. The judgment finds that while s. 184.4 is fairly narrow in scope and does set a number of reasonable limitations, where it fails is the lack of accountability. In its current form there is no oversight and no requirement to inform the person whose communications have been intercepted, after the fact. The Court ruled that this was constitutionally invalid legislation and gave Parliament 12 months to bring in new legislation that addressed these deficiencies. ■ canlii.ca/t/fqxmc ■ See “Bill C-30: An Autopsy” on p. 32 for a more detailed discussion of these issues.



■ A.B. v. Bragg Communications Inc., 2012 SCC 46

Internet provider Bragg Communications Inc. was ordered by the Court to disclose the identity of the person who used an IP address to create a fake Facebook page of a 15-year-old girl (identified as “A.B.” in the suit), to assist the girl’s guardian in identifying potential defendants for an action in defamation. The Court ruled the girl’s father had the right to anonymously obtain the order, even though specific harm from publicity had not been proven. A publication ban on the contents of the Facebook profile had also been requested; however, the Court ruled that non-identifying portions of the Facebook profile could be made public. “If the non-identifying information is made public, there is no harmful impact on the girl since the information cannot be connected to her. The public’s right to open courts— and press freedom—therefore prevail with respect to the non-identifying Facebook content.” The Nova Scotia Court of Appeal had ruled earlier that the action for defamation be brought in open court, with unrestricted publication of the proceedings so as to “inform citizens that the appellant is taking legal action to obtain redress for the alleged lies that have been posted on Facebook.” In the Court of Appeal’s words: “The public will be much better informed as to what words constitute defamation, and alerted to the consequences of sharing information through social networking among ‘friends’ on a 21st Century bulletin board with a proven global reach.”

Conrad Black

■ canlii.ca/t/fstvq

CHRIS YOUNG/CP

■ Breeden v. Black, 2012 SCC 19

This case involved defamation lawsuits brought by Conrad Black, at the time a non-resident of Ontario, against members of a special committee that issued press releases and a report to the United States Securities and Exchange Commission regarding his tenure at Hollinger. The Court held (unanimously) that the selection of an Ontario court for the trial of the libel actions brought by Lord Black was appropriate because the defamatory statements had been read, downloaded and republished in Ontario by three newspapers (based on press releases and a report that had been sent to the U.S. Securities and Exchange Commission in the U.S.). The Court then weighed various factors and decided that although an Illinois court was also appropriate (Lord Black was the chair of Hollinger International, whose headquarters were at one point in Chicago), it was not necessarily a more convenient forum than Ontario. The libel laws of Canada can be seen as more plaintiff-friendly than other jurisdictions. However, the Court stated, in this case, that “Juridical advantage…should not weigh too heavily in the analysis.” ■ canlii.ca/t/fqzt1

CJFE REVIEW 2013 43


■ Éditions Écosociété Inc. v. Banro Corp, 2012 SCC 18

In a similar case, the Court unanimously held that a real and substantial connection existed between the action and the Ontario court’s territory. In this case, an Ontario-based mining company, Banro, sued a Quebec-based publisher for defamation. The book was published in French, with 5,000 copies printed, only 108 of which were available in Ontario (93 in bookstores and 15 in libraries). Éditions Écosociété argued, unsuccessfully, that they should have the advantage of Quebec’s anti-SLAPP (strategic lawsuit against public participation) provisions, in their fight against the mining company. The Court concluded that although the “claim has connections to more than one forum, given the strength of the connections between the plaintiff and Ontario, it is not at all clear that the plaintiff is engaged in libel tourism and that Quebec would be a clearly more appropriate forum.” The issue of “forum shopping” or “libel tourism” in cases of alleged defamation, where a plaintiff may decide to sue in a location they deem more favourable, will continue to be problematic. ■ canlii.ca/t/fqzt5

 

COURTS OF APPEAL ■ 1654776 Ontario Limited v. Stewart 2013 ONCA 184

The Ontario Court of Appeal upheld a lower court decision that ruled that journalist Sinclair Stewart should not be required to disclose the identity of confidential sources. On June 30, 2008, The Globe and Mail published an article by its then financial reporter, Sinclair Stewart, about the ongoing negotiations in the proposed takeover of BCE. Stewart had written several articles already, describing the deal’s progress, and many of his articles relied on information provided by several unnamed confidential sources. Jeffrey MacIntosh, a University of Toronto law professor and an expert in corporate and securities law, alleged that the article caused him to lose money in a securities transaction he made through a numbered company. MacIntosh was seeking to have the identities of the confidential sources identified so that they could be named in a proposed class action that includes BCE and others as defendants. He had been unsuccessful in his earlier attempt to get the Ontario Securities Commission to investigate what he alleged were “misrepresentations” by the confidential sources, and a breach of the Ontario Securities Act. As stated by Justice Juriansz, “The public interest in a free press is clear. Confidential sources are closely aligned with a free press.” He went on to say, “The public interest in promoting compliance with the disclosure regime regulated by the Securities Act can be adequately served without granting disclosure.” ■ canlii.ca/t/fwq57



■ Berthiaume c. Carignan, 2012 QCCA 2061

Marie-Josée Berthiaume and several other doctors shared a radiology practice at the Maisonneuve Rosemont hospital. She sued her former partners for defamation for allegedly harassing and denigrating her. During those proceedings, the newspaper La Presse published an article about an inquiry by the Quebec College of Physicians into alleged errors made by Berthiaume’s spouse. Berthiaume amended her action against her former colleagues and subpoenaed La Presse journalist André Noël to compel him to testify in her action against her former partners. The Quebec Superior Court ruled that Noël would not have to answer questions or provide documents that would identify confidential sources. The Court held that the identities of the confidential sources were not relevant to the proceedings in the action between Berthiaume and her former partners. The Quebec Court of Appeal upheld the lower court’s decision. Application for leave to appeal to the Supreme Court of Canada was dismissed. ■ canlii.ca/t/ftt2j

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■ Coltsfoot Publishing Limited v. Foster-Jacques, 2012 NSCA 83

A well-known Nova Scotia couple, Hector Jacques and his estranged wife, Sharon FosterJacques, asked the Court for a sealing order on their divorce proceedings when they learned that Frank Magazine had made a request to view their divorce file. At the initial hearing, in the Nova Scotia Supreme Court, Family Division, the Court granted the sealing order on the file. However, subsequently, the Nova Scotia Court of Appeal overturned the lower court’s decision. The Court of Appeal found that public access to the hearing and to the Reasons for Decision would not be sufficient to satisfy the “open court” principle. The “open court” principle assumes that public confidence in the integrity of the court system and understanding of the administration of justice is fostered by openness and full publicity. The Court ordered a more limited publication ban under which Coltsfoot, which publishes Frank Magazine, was prohibited from publishing, disclosing, communicating or using information in the court file that might lead to identity theft—something that Coltsfoot had already agreed to do, at both the trial level and the Court of Appeal.

Hector Jacques

■ canlii.ca/t/fsbr7

 

■ Baglow v. Smith, 2012 ONCA 407

As reported in last year’s Review, all levels of courts have been grappling with the new cyber jurisdiction—reappraising laws made when words and images couldn’t be shared around the world in a split second. In the initial judgment in this action, in which one political blogger sued another for defamation, the Court noted that there is more latitude for insults and heated rhetoric online because “Internet blogging is a form of public conversation…[and] it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame.” The Court dismissed the action. On appeal, the Ontario Court of Appeal directed that this action proceed to trial. The Court noted that there is no existing case law that examines whether different legal considerations apply in determining whether a statement is defamatory in the “blogosphere” rather than in publication in a traditional media outlet. The Court of Appeal set aside the lower court’s decision and sent this case back for a new trial where these important issues can be more fully explored. ■ canlii.ca/t/frphh



FRED CHARTRAND/CP

■ United Food and Commercial Workers Union, Local 401 v. Alberta (Attorney General), 2012

ABCA 130 The Court of Appeal of Alberta upheld the right of the applicant union to videotape people crossing a picket line and to post the videos on the Internet, as part of its publicity campaign surrounding a work stoppage. The Court disagreed with the lower court’s decision to permit the union to rely on a broad reading of the “journalism exemption” in Alberta’s Personal Information Protection Act in order to avoid finding a Charter Section 2(b) free expression violation. Rather, the Court focused on the labour relations context of the union’s expressive activity, and found that “[d] issuading people from crossing the picket line, enhancing morale of the strikers, deterring violence and threats, and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression.” Rather than striking down the relevant sections of the Personal Information Protection Act, the Court simply declared that the attempt to apply those provisions to the union unjustifiably infringed on its free expression rights. ■ canlii.ca/t/fr4l5

 

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■ Out-of-Home Marketing Association of Canada v. Toronto (City), 2012 ONCA 212

Out-of-Home Marketing and Pattison Outdoor Advertising challenged a City of Toronto bylaw imposing a tax on “third party signs” at locations where the goods and services advertised are not located, seeking to have it quashed. Pattison also argued for a sealing order on the basis that it needed to prevent public disclosure of certain financial information it had filed in support of the litigation. The lower court’s decision “grandfathered” existing signs and exempted them from the new tax, and granted Pattison the sealing order. The Ontario Court of Appeal reversed the lower court’s decision and set aside the sealing order. Justice Epstein states that “a request to have exhibits sealed implicates the open court principle, and must be approached with great care.” The Court found that the applicant for the sealing order failed to meet the first part of the Dagenais/Mentuck test, which requires that the order be “necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk.” ■ canlii.ca/t/fqtdj

 

■ Canwest Publishing Inc. v.Wilson, 2012 BCCA 181

This case, involving the right of Vancouver journalist Elaine O’Connor to protect her sources, is also connected to a defamation case. The defamation claim by Charles Blair Wilson resulted from a lengthy story given front-page prominence by Vancouver newspaper The Province on Oct. 28, 2007. At the time, Wilson was the Liberal member of Parliament for the riding of West Vancouver-Sunshine Coast. The article contained information from a number of sources, including three sources who spoke on condition of anonymity. In the lower court, the chambers judge ruled that the journalist reveal the identity of her confidential sources. The journalist and Canwest, the publisher, appealed the decision. The British Columbia Court of Appeal ruled that a journalist sued for defamation was entitled to protect the identity of her confidential sources. In overturning the lower court’s decision, the Court of Appeal held that the identities of the confidential sources were not relevant to whether Canwest or the journalist had acted maliciously. ■ canlii.ca/t/fr4fq



■ Erdmann v. Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee),

2012 ABCA 52 Maria Cornelia Erdmann had been found guilty of professional misconduct by the Institute of Chartered Accountants of Alberta. She was appealing this ruling to the Alberta Court of Appeal. Prior to her appeal being heard, she applied for an order to have all of the files of the Court of Appeal sealed, allow her to prosecute her appeal under a pseudonym, and have the appeal heard in camera. The Court of Appeal dismissed Erdmann’s application, stating: “Court files cannot be sealed simply because of a desire for privacy by the litigants, or to protect individuals from embarrassment or inconvenience. The applicant has not demonstrated any compelling reason to seal this file.” ■ canlii.ca/t/fq3v3



SUPERIOR COURTS ■ Laforest c. Collins, 2012 QCCS 3078 (decision only available in French)

In a recent variation of the Supreme Court’s decision in Crookes v. Newton, the Quebec Superior Court has held that the protection against liability for defamation by hyperlinking established in that case does not apply when the defendant hyperlinks to material that they themselves authored. Judge Gratien Duchesne said: “The Web has become the most powerful and frequently used medium of communication on earth. It permits wars to be halted quickly, criminals to be quickly captured.Teaching has no limit. Communication can be personal as well as impersonal. The Web can make anyone a celebrity in a few minutes. It can tarnish or destroy a reputation with one click.” ■ canlii.ca/t/frz8g

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■ R. v. Dingwell, 2012 PESC 14

On the third day of Dylan Dingwell’s trial for second-degree murder, the CBC and Guardian newspaper applied to the Supreme Court of Prince Edward Island to have access to audio recordings of 911 calls, video and audio tapes of three statements made by the accused, and a police video of the crime scene. All of these exhibits were being used as evidence in the trial. The media sought access to these exhibits on the basis of the “open court” principle. The Court ordered copies of the 911 calls and the accused’s videotaped statements to police to be released to the media. However, restrictions were placed on the use of the crime scene videotape, with the Court citing privacy interests of the next-door neighbours. ■ canlii.ca/t/fr3zm

 

■ Constructions Louisbourg ltée c. Société Radio-Canada, 2012 QCCS 767

In December 2010, after an investigation by the Canada Revenue Agency, two companies owned by Antonio Accurso, Constructions Louisbourg ltée and Simard-Beaudry Construction inc., pled guilty to fraud charges and were ordered to pay fines totalling more than $4 million. On Feb. 9, 2011, Revenu Quebec, which was conducting its own investigation, got a court order to obtain documents from the CRA. On that same day, Enquête, Radio-Canada’s investigative TV program, which had been investigating Accurso and the corruption in the construction industry since 2009, broadcast a news report and published an online article that included a portion of the order. One week later, a Quebec court judge issued a sealing order on the file. Radio-Canada continued to report on the story throughout 2011. As a result, the Louisbourg and SimardBeaudry construction companies asked the Court to find Radio-Canada in contempt, on the basis that its journalists had violated a sealing order and breached the confidentiality of the file. Constructions Louisbourg ltée was also seeking the identity of a confidential source. The judge ruled that Radio-Canada was not in contempt and that the identity of the confidential source should not be revealed. ■ canlii.ca/t/fqfmw

 

THANK YOU TO OUR SUPPORTERS CJFE would like to offer our sincere thanks to the following organizations, which have provided generous support for CJFE’s Review of Free Expression in Canada:

CJFE REVIEW 2013 47



2012/2013 Review of Free Expression in Canada