2011-2012 CJFE's Review of Free Expression in Canada

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2011-2012 CJFE’s Review of Free Expression in Canada LETTER FROM THE EDITORS

Oh, how the mighty fall. Once a leader in access to information, peacekeeping, human rights and more, Canada’s global stock has plummeted in recent years. This Review begins, as always, with a Report Card that grades key issues, institutions and governmental departments in terms of how their actions have affected freedom of expression and access to information between May 2011 and May 2012. This year we’ve assessed Canadian scientists’ freedom of expression, federal protection of digital rights and Internet JOIN CJFE access, federal access to information, the Supreme Court, media ownership and ourselves—the Canadian public. Being involved with CJFE is When we began talking about this Review, we knew we wanted to highlight a major issue with a series of articles. There were plenty of options to choose from, but we ultimately settled not restricted to journalists; on the one topic that is both urgent and has an impact on your daily life: the Internet. Think about it: When was the last time you went a whole day without accessing the membership is open to all Internet? No email, no Skype, no gaming, no online shopping, no Facebook, Twitter or Instagram, no news websites or blogs, no checking the weather with that app. Can you even who believe in the right to recall the last time you went totally Net-free? Our series on free expression and the Internet (beginning on p. 18) examines the complex free expression. relationship between the Internet, its users and free expression, access to information, legislation and court decisions. Lawyer Peter Jacobsen explains a recent court decision about hyperlinking and libel (p. 18); lawyer and researcher Michael Geist explores the implications of Bill C-30, the To become a member, get “Lawful Access” bill that will allow law enforcement to look in on what you’re doing online (p. 19); journalist-turned-lawyer Danielle Stone explores issues in online anonymity (p. 22); and involved in other ways or the Citizen Lab’s Ron Deibert takes a detailed look at the global cyber threat landscape (p. 26). Plus we take a look at an online collaborative journalism venture (p. 25). see what we’re up to, Of course, free expression on the Internet is but one area of concern for CJFE. Delays, refusals and redactions continue to block access to information at the federal email us at [email protected] government level. While slight improvements were made since our last Review went to press, journalists and others report that gaining access to information that should be available to the or visit cjfe.org. public remains a struggle (p. 11–15). Federally funded scientists continue to be muzzled by the Canadian government, and, as Kathryn O’Hara explains in “Silenced Scientists” (p. 8), science writers’ groups and other organizations are fighting back. They are joining forces to push for better access to scientists “No matter how independent we so that the public can know about research findings, which are key in shaping public policy and allowing the public to more accurately assess the validity of what policy-makers are telling may be in our individual work, we them. are all linked in a profession that The federal government was also in hot water over the question of whether politics strives to expose the truth, and played a part in funding cuts for non-governmental organizations, which created a chill on free expression throughout civil society. Grant Buckler takes a look back at some of the key unravel the intricacies of what is examples, connecting dots and bringing some clarity to this very murky issue (p. 16). happening around us. And though We also put the spotlight on whistleblowers in this Review. As CJFE President Arnold difficult enough, at times, in our Amber reveals, Canadian whistleblowers expose serious issues at great personal and professional expense, with no legal protection for private sector employees and ineffective protec- own country, it is next to impos- tions for public sector workers (p. 30). sible in others, without the help of As always, we include an appendix of notable free-expression-related court decisions from organizations such as CJFE.” the past year (p. 36); these cases involve libel, defamation and access to information. This Review of Free Expression in Canada will launch on May 3, World Press Freedom Day. — Anna Maria Tremonti, Each day, CJFE works to defend the rights of journalists, freedom of expression and access to host of CBC’s The Current information here in Canada and around the world. We invite you to join us in these efforts. and CJFE Board member Sincerely,

The Editors

The Canadian Charter of Rights and Freedoms was signed 30 years ago, on April 17, 1982. CONTENTS

About CJFE 4 Editorial Director Leslie de Freitas CJFE’s Report Card 2011–2012: Connected Disconnect 6

Managing Editor Silenced Scientists 8 Cara Smusiak Delay, Redact, Refuse, Repeat: The Access to Information Runaround 11 Art Director From Leader to Laggard: Canada’s Right to Information Rating 13 Gigi Lau When ATI Works 14 COPY EDITOR Lyndsie Bourgon The Rise and Fall of Freedom of Information 15

CONTRIBUTERS Freezing Out Civil Society 16 Arnold Amber Dean Beeby CYBER NATION 18 Grant Buckler Ron Deibert Links and Libel 18 Michael Geist The Price of Peeking 19 Peter Jacobsen Amy Johnson Cyber Nation Infographic 20 Paul Knox Susan Mohammad Anonymous in the Internet Age 22 Sophie Nicholls Kathryn O’Hara Collaborative Efforts 25 Danielle Stone Paula Todd Securing Cyberspace 26 Laura Tribe Controlling Interests: Media Ownership in Canada 28 INFOGRAPHIC DESIGNER Out on a Limb: Canadian Whistleblowers Face Great Obstacles 30 Mark Tang Truth and Consequences 32 Photo Editor David Lee Cross-Canada Free Expression Reports 33

Lawyer Appendix: Major Court Decisions 2011–2012 36 Peter Jacobsen

Additional Thanks We are grateful to the Canadian Commission for UNESCO and to the Globe and Mail for their support of this Review. Bob Carty John Norris Paul Saguil Phil Tunley Canadian Committee for World Press Freedom (CCWPF) We are also grateful to Transcontinental for printing this Review. Annie Game

CJFE celebrated its 30th year in 2011. ABOUT CJFE

Some of our programs include The International Freedom of Expression Exchange (IFEX) CJFE currently manages IFEX, a global network that monitors, promotes and defends freedom of expression. IFEX has more than 90 member organizations in over 60 countries, including CJFE in Canada. The network publishes daily alerts from around the world, while also collaborating on strategies to address specific freedom of expression issues.

Journalists in Distress Fund Who we are CJFE provides humanitarian assistance to journalists who have been attacked or CJFE is an independent Canadian orga- threatened because of their work. We also co-ordinate an email group of 18 inter nization that works to protect journalists, national organizations that provide distress assistance to writers and journalists, to share freedom of expression and access to information and speed up response time. Grants are provided to help journalists and information in Canada and around the their families acquire medical attention, travel to safety, and receive legal assistance. To world. We are active participants and date, CJFE has provided more than $200,000 in funding. builders of the global free expression community. In 2011, CJFE celebrated Scotiabank/CJFE Journalism Fellowship its 30th year. In 2009, CJFE partnered with Scotiabank and Massey College to create a Fellowship in order to promote dialogue and explore journalism and free expression issues in the Americas. The Fellowship is open to journalists from South America, Central America, JOIN CJFE and help us defend freedom Mexico and the Caribbean. The 2011–2012 Fellow is Luis Horacio Nájera, a veteran of expression and press freedom in journalist from Mexico who reported on the trafficking of drugs, people and weapons, Canada and around the world. until fears for his life and his family’s safety forced him to seek asylum in Canada.

@canadaCJFE Some of our activities include CJFE Gala: A Night to Honour Courageous Reporting Our annual gala, held in Toronto, serves as a forum to recognize the brave work facebook.com/canadacjfe of journalists and free expression advocates from Canada and around the world. More than 500 people attended the 14th annual CJFE Gala, held at The Fairmont Royal York in Toronto on Nov. 24, 2011, and hosted by Anna Maria Tremonti, host cjfecanada of CBC Radio One’s The Current. Among those honoured were Yemeni veteran journalist Khaled al-Hammadi, Egyptian citizen journalist Mohamed Abdelfat- tah, Canadian journalist Ron Haggart and Canadian scientists and whistleblowers Dr. Shiv Chopra, Dr. Margaret Haydon and Dr. Gérard Lambert. This year’s Gala will be held Dec. 5, 2012.

International Day to End Impunity Marked on November 23, the first annual International Day to End Impunity was held in 2011. This day recognizes individuals who have been killed for exercising their freedom of expression, including Canada’s own Tara Singh Hayer, and whose killers have never been brought to justice.

World Press Freedom Day Each year on May 3, World Press Freedom Day serves as a reminder of the importance of press freedom, and the critical role of freedom of expression. CJFE holds an event each year to mark this day.

The Manitoba Press Council served as the provincial watchdog agency over journalistic ethics for 27 years before ceasing operations in January 2012. 4 ABOUT CJFE

Advocacy work in Canada CJFE.ORG Events Canadians are comparatively lucky: Protest letters In addition to our annual Gala, CJFE battles for freedom of expression in CJFE responds to critical events affect- organizes and participates in conferences, this country are more often fought ing free expression, such as attacks on film screenings, panel discussions and with words in courtrooms than with journalists, threats to bloggers, or when other events throughout the year. All of bullets and tear gas on the streets. limiting legislation or challenges to our events can be found on the CJFE Nevertheless, Canadians’ vital free existing legal protections are proposed, website. Some of our events include: expression rights have been chal- by writing to the relevant authorities. • Presentation of High Tech, lenged repeatedly in Canada. All of our protest letters are posted Low Life, a documentary that CJFE intervenes in legal cases online, along with the tools necessary profiles two of China’s first that we hope will lead to the creation for you to compose your own. citizen journalists and captures of better laws to protect freedom of the fearlessness of a new expression across the country. These Feature articles digital generation, at the 2012 include cases of access to informa- CJFE’s articles provide context and Hot Docs Festival on May 3— tion, defamation and libel, hate speech, analysis on critical free expression World Press Freedom Day. police impersonating journalists and issues both in Canada and around the • Access Denied, a panel protection of sources. In 2010–2011, world. A great resource for under- discussion on access to CJFE intervened in two particularly standing complex matters, our articles information. important cases: Crookes v. Newton continue to address free expression • Reporting on the Arab Spring, a (issue of hyperlinks and defamation) and issues as they arise. panel discussion. Saskatchewan Human Rights Commis- • 2011 McLuhan Lecture: sion v. William Whatcott (issue of ambi- In Perpetual Peril: The Culture guity and application of hate speech law). and Practice of Community Journalism in the Philippines, with Carolyn Arguillas.

PARTNERSHIP WITH JUNIPER PARK CJFE is fortunate to have the pro bono support of a creative group of professionals from the award-winning ad agency Juniper Park. Their strategies and designs have informed everything from communication vehicles and branding to very successful campaigns such as the IFEX-led initiative, the International Day to End Impunity, and CJFE’s marking of World Press Freedom Day. This dynamic partnership has grown over the years and has contributed to raising the profile of CJFE and strengthening Canadians’ awareness of free expression issues.

6 organizations, CJFE included, co-signed an open letter to Prime Minister Stephen Harper calling for an end to the strategic silencing of federal scientists. 5 REPORT CARD

CJFE’s Report Card Access to Information and the Federal Government: 2011–2012: On the heels of last year’s shameful F- grade, we’ve given the federal government just the slightest bump up due to some marginal improvements in access to Connected information. In the past year, the number of federal ATI requests was up by just less than 1 per cent, and the number of requests denied for security Disconnect reasons was slightly down; nevertheless, the number of ATI requests denied on security grounds has tripled since 2002–2003. It’s certainly no surprise that e have never been more Canada remains at the mid-to-low end of the international spectrum when it connected. The Internet has comes to our right to information. For more on access to information, see page 11. blown open the doors of Wcommunication and access to information, and Canadians rank FEDERAL Scientists’ highest in the world in online engage- Freedom of Expression: ment. Yet our freedom of information Canada’s control over the communications of federally funded scientists is an and free expression track record is extreme example of a federal fixation on controlling the message that is bad nose-diving, threatening the very con- for our country and its citizens. After the policy was adopted in 2007, climate nections we’ve come to rely on. change science coverage in the media plummeted by 80 per cent, drastically Access to information at the federal reducing information available to Canadians. Perhaps the most puzzling of level continues to be marred by secrecy restrictions, some scientists have been told they are not allowed to discuss and delays. While there were some very their research even when it has been published in peer-reviewed journals. small improvements this year, the gov- Recent efforts to bring this situation to the attention of the public, spear- ernment is largely continuing its stone- headed by the Canadian Science Writers’ Association, have elicited support walling tactics in hopes that journalists from journalists, scientists and the general public, both at home and abroad. and other interested parties will simply Meanwhile, Peter Kent, minister of the environment, has simply dismissed give up and move on to something else. concerns about the issue. As a former award-winning journalist, Kent should The same could be said for the know better. For more on the muzzling of scientists, see page 8. muzzling of scientists. In perhaps its most openly brash act of control, the government has continued to prevent The SUPREME Court: federally funded scientists from speak- The Supreme Court of Canada ruled that emergency wiretapping by ing with the media about their research, police without a warrant is unconstitutional—but gave the government even after the findings are published and 12 months to redraft the provision, so stay tuned. In Crookes v. Newton, available to the public. This undermines the Court upheld a lower court’s ruling that hyperlinking is not the same public understanding of issues, limits as publication in alleged cases of libel, and noted the potential chilling debate and runs roughshod over the effect on the Internet had the decision gone the other way. Both deci- rights of the scientists, as individuals, to sions were welcomed by free expression advocates, but a Supreme Court speak freely. decision barring access to records held in cabinet ministers’ offices did Even the Internet—a game-chang- bring down the overall grade. For more on the legal cases that are shaping free ing tool when it comes to free expres- expression in Canada, see the Appendix, starting on page 36. sion—is facing challenges. We are in the midst of sweeping changes in the way information is shared and controlled. Understanding these issues is vital to developing a strong position against policies that curtail free expression in the cyber sphere. Here is CJFE’s assessment of the key issues and major institutions.

6 REPORT CARD

Media OWNERSHIP: It seems every time the dust settles from one massive media buy, another is announced. Over the past year alone, BCE Inc. purchased Astral Media (pending approval), includ- While it’s our role to highlight causes ing its 84 licensed radio stations; Transcontinental Inc. scooped up Quebecor World’s for concern, we also wish to recognize Canadian assets, as well as Le Canada Français (the oldest weekly newspaper in Quebec) individuals and organizations for their and 10 other Quebec weeklies; and Rogers Communications Inc. bought Saskatch- contributions in advancing free expres- ewan Communications Network, a Regina-based TV station. As media concentration sion rights: grows more pervasive, the number of people deciding what constitutes information the public needs to know shrinks, as does our access to varied ideas and opinions, • The Canadian Science Writers’ essential to a healthy democracy. For diagram of media ownership in Canada, see p. 28. Association, for its sustained efforts to inform the public of the muzzling of scientists. The Canadian Public : • The Canadian Newspaper Associa- While it seems free expression is tested at every turn, Canadians have been actively tion, for its singular and essential exercising and protecting this right, making their voices and opinions heard—whether work on Access to Information. through commenting on media websites, blogging, tweeting or participating in online • Dan Burnett, lead counsel, and petitions via sites such as openmedia.ca (which ran a forceful campaign against usage- Robert Anderson and Ludmilla based billing for Internet services). Canadians have also been taking advantage of new Herbst, for their pro bono work opportunities to collaborate with media: OpenFile, based on a model where the public and representing the media coali- pitches story ideas that journalists then develop, expanded into several new markets in tion in the Crookes v. Newton case. the past year. (For more on openfile.ca, see p. 25.) And while Canadian Occupy protests • Phil Tunley, lead counsel, and were small in comparison to some south of the border, people across Canada added Paul Jonathan Saguil, for their pro their voices to a global protest against greed and irresponsibility in the financial sector. bono work and representing CJFE But it’s not all sunny skies. Our performance when it comes to the cornerstone of free in the Whatcott v. Saskatchewan expression—voting—has been lackluster. In fact, voter turnout for the 41st General Human Rights Commission case. Election, held May 2, 2011, was a dismal 61 per cent. Could the potential to vote on • The provincial and territorial the Internet in the future help turn this around? information and privacy commissioners, who voiced strong objections to the proposed Bill Federal Protection of C-30 which, if passed, would Digital Rights and Internet Access: allow police to obtain personal Bill C-30 is at the heart of our concerns over free expression online in Canada. Bill information from Internet service C-30 would allow law enforcement access to Internet subscriber information; the providers without a warrant. potential for observation and the lack of privacy would have a chilling effect on all • The Canadian Centre for Law and uses of the Internet. And Internet access is apparently no longer a priority. Indus- Democracy, for their work in right try Canada has completely cut federal funding for the Community Access Program, to information, both gobally and which provides low-cost or free Internet access via libraries and community centres, in Canada. meaning fewer Canadians will have access to the Internet—vital for both access to information and free expression. Combined with the fact that Canada seems to be We have never been more connected, missing the boat altogether when it comes to playing a role in international Internet more able to share information and governance policy, there is certainly cause for concern. For more on free expression and ideas, than we are today. Safeguarding the Internet, see articles beginning p. 18. this connection against new policies and uses of technology that could have a chilling effect are key to protecting free speech—whether it’s online, in parliament, in our workplaces or in our homes.

7 FEDERAL SCIENTISTS

SCIENTISTS Federal communications policy bars scientists from talking to the media about their research, making it much more difficult to share key findings with the public

By Kathryn O’Hara

t is no secret that Prime Minister A few years ago, during an informal the government communications frame- Stephen Harper has introduced to phone conversation with a former gov- work was to encourage scientists to talk government a level of control and a ernment advisor, I asked how scientists about their research in a timely fashion, Ilack of transparency that continues are perceived on the Hill. The advisor and make it understandable to the public. to dismay his critics and concerned quipped that there is a special place in This spirit of openness suffered a Canadians. The control is part of a hell reserved for government scientists. blow in 2007, when an executive policy broader modus operandi that disregards Scientists, with their penchant for for communications from Environment parliamentary rules of fair play (with embracing uncertainty and insistence Canada called for centralized control, no apparent consequences), and curtails on data, can be pesky. Scientific evi- pre-approved media lines and limits on journalists’ relationships with ministerial dence is not always useful for political scientists’ ability to talk to media about staff and senior level bureaucrats. This agendas. But the taxpayers fund federal published research. One of the stated may be putting a dent in our democ- scientists to protect the public interest aims of this new central command was racy, but the real damage may lie ahead. and weigh in on the evidence side of to prevent any “surprises” to the minis- For years, scientists’ research and prudent decision-making. ter or senior bureaucrats. advice has informed policy and regula- To this end, journalists used to be When this new direction for Envi- tions in matters of the environment, able to talk to scientists in government ronment Canada came to the attention health, food safety, our fisheries and departments about their research, espe- of senior science reporter Margaret oceans and our natural resources, but cially when it was newsworthy research Munro, she shared it with other scien- these scientists are now largely ignored— published in peer-reviewed journals. tists and wrote about it for Postmedia or worse, muzzled—by the government. Accessibility was the norm. The thrust of News. The “one department, one

2008 2010 February Canwest News Service March Climate Action Network Canada publishes a document from publishes documents from Environment Environment Canada that says the tightened communication is associated Canada outlining the new communication with an 80 per cent decline in climate change stories in the Canadian media. policy: “We should have one department, one voice.” Federal scientists are required June The Canadian Association of Journalists denounces the federal to refer all media requests to Ottawa, government’s restrictive communications strategy and apparent interference in and to use media lines approved by the access to information system. headquarters. According to the journal Nature, the new policy demonstrates a September Postmedia News (formerly Canwest News Service) reports on “manifest disregard for science.” a departmental minister withholding permission to a federal scientist from talking about his published research on an Arctic flood that happened 13,000 October Eighty-five Canadian years ago. scientists call for Canada’s political parties to end the “politicization” and October The Professional Institute of the Public Service of Canada launches “mistreatment” of science. publicscience.ca to advocate for support of science and to underline the importance of science for the public good.

8 FEDERAL SCIENTISTS GREY Timely access to scientific experts for the media is just one part of the issue. The government has also cut the budget for grey literature—the publications between a press release and an academic publication, written for a general audience without a science background to help inform decision-making. “In the last six years, the government has managed to largely eliminate the grey literature at Environment Canada,” says Dr. Thomas J. Duck, an atmospheric scientist at Dalhousie University in Halifax. “We are dealing with significant environmental problems and the public needs to be properly informed by the leading scientific experts if we are to hold our government accountable.” voice” policy meant delays in access- and asked what each party would do to took calls from reporters instead. “The ing scientists for interviews, and exces- improve the situation, to “free scientists fact that Dr. Tarasick wasn’t able to speak sive oversight from media officers who to talk to journalists.” Only the Conser- was really troubling. In the House of crafted responses that served a political vative Party of Canada failed to respond. Commons, the government maintained agenda; their role had shifted from A year has passed since Canadians that Dr. Tarasick wasn’t being muzzled facilitator to gatekeeper. elected a majority government. There while at the same time they were sending The Canadian Science Writers’ Asso- have been minor improvements in the out emails to reporters saying that he ciation (CSWA) and the Society of Envi- access to some scientists, but mindful of wasn’t available. It was—I’m trying to ronmental Journalists met with senior deadlines, fewer journalists try to speak find Parliamentary language here—very bureaucrats to discuss their concerns, as with them—and fewer scientists have dishonest,” Dr. Duck said. a follow-up to a well-attended panel dis- any incentive to speak with journalists. Dr. Tarasick later told Postmedia cussion with government officials at the Case in point: When a study about News: “I’m available when media relations CSWA annual conference in 2010. With an unprecedented hole in the ozone says I’m available. I have to go through no real recognition on the government’s layer above the Arctic was published them.” Clearly, this is not good enough. part that a problem existed, little changed. in the journal Nature in October 2011, In February 2012, a panel discussion Before the 2011 federal election, Environment Canada told the media at the Annual Meeting of the American the CSWA wrote an open letter to the that co-author Dr. David Tarasick was Association for the Advancement of party leaders that referred to numerous not available for comment. Dr. Thomas J. Science in Vancouver ignited three weeks instances when journalists did not have Duck, an atmospheric scientist and physi- of media coverage, both national and timely access to government scientists, cist at Dalhousie University in Halifax, international, on the ability of Canada’s

2011 2012 2012 April The Canadian Press reveals the muzzling of February Journalists, APRIL In an article in the a Canadian scientist who co-wrote a report on toxic science communicators and Ottawa Citizen, science chemicals that were released in the Arctic. the federal public service reporter Tom Spears reveals union call for an open that while it took him just 15 July Postmedia News reports on documents showing that science communication minutes to talk to a scientist the Department of Fisheries and Oceans stopped researcher policy in Canada at the at NASA about a joint study Dr. Kristi Miller from giving interviews on her study of American Association with Canada’s National Fraser River sockeye salmon. Her study was published in for the Advancement of Research Council (NRC), his the journal Science. Science Annual Meeting request to speak with an NRC in Vancouver. Absent from scientist was denied. Spears’ August Dr. Kristi Miller tells the commission studying the the “Unmuzzling Federal article offers a fascinating Pacific salmon fisheries that the department told her not to Scientists: how to reopen glimpse into the current speak to the media until she testified. the discourse” panel, were bureaucracy by including representatives from the internal emails involving October A study published in Nature shows there’s federal government and the 11 different people at NRC an unprecedented hole in the ozone above the Arctic. senior bureaucracy, though who followed his request, Dr. David Tarasick, an Environment Canada researcher who several were invited to correspondence obtained after worked on the study, is not allowed to give interviews. participate. the fact through an ATI request.

9 FEDERAL SCIENTISTS

federal government scientists to speak Hutchings touched on this issue in information that supports or reveals with journalists about their published a paper he co-authored 15 years ago evidence to the contrary. We also need research in a timely fashion. in the aftermath of the cod fisheries to tell stories in which science shines a In the United States, the Union crisis under the Liberal government light on our daily lives. Many of these of Concerned Scientists systematically (“Is scientific inquiry compatible with issues are not the least controversial. But approached a similar problem under government information control?” pub- even if they turn out to be, that is the George W. Bush’s administration, and lished in the Canadian Journal of Fisher- chance our politicians take when they crafted evidence-based guidelines for ies and Aquatic Sciences), concluding: talk about accountability. government communication of science. “There is a clear and immediate need We need to work to make sure The essence of that document is con- for Canadians to examine very seri- that we build a case for transparency tained in the new guidelines from the ously the role of bureaucrats and poli- and accessibility. To do so, we need U.S. National Oceanographic and ticians in the management of Canada’s to gather more evidence, document Atmospheric Agency (NOAA). This natural resources.” The authors recom- existing communications policies and new policy has certainly raised the bar. mended a separate scientific body that examine the language we use. We also It states that scientists are free to speak to could operate at arm’s-length outside need to find funds to research the links journalists, no exceptions. They are free the government ministry. That obvi- between a Canadian electorate that is to have a media officer present, should ously hasn’t happened, and possibly science-aware and strong journalistic they so choose, and scientists can express never will. But it is all the more reason practice in advancing evidence-based their personal opinions provided they to make sure scientific integrity is not policymaking. Now that the interna- are clear the opinion is not departmen- compromised in a closed system that tional media has picked up our message, tally sanctioned. Indeed, change is pos- doesn’t allow for the checks and bal- we need to convince the public and sible; openness and transparency can be ances that come with transparency and the current government that muzzling realized. Canadian scientists and journal- the free flow of information. scientists is irresponsible, regressive, dis- ists need to spread the word and push for Canadian taxpayers expect the honest and, ultimately, a mug’s game. a similar policy. government to craft policies that will We may also need to re-examine protect our health and our environ- Kathryn O’Hara is an associate professor of how government science works in our ment and ensure our resources are journalism at Carleton University where she democracy, and how best to protect safeguarded for generations to come. holds the CTV Chair in Science Broadcast its value. Fisheries scientist Dr. Jeffrey Journalists need access to experts for Journalism.

“Why aren’t there people “In general, [the “Canadians have the right “For research results to inside going on strike over American Association to learn more about the change policy, government this? The answer is the way for the Advancement of science they support and scientists need direct that pressure is applied Science] expects open to have unfettered access access to the public in and scientific issues are and transparent science to the expertise of publicly order to explain the policy manipulated are often subtle communication, other funded scientists.” implications of their work to the inexperienced or than when national —From an OPEN LETTER to through the news media. unaware scientific employee security is involved. If, in Prime Minister Stephen Harper, Without that, it would be of government.” fact, scientists are being co-signed by the Association tempting for governments —Dr. Michele Brill- muzzled anywhere in the des communicateurs to ignore research results Edwards, a Health Canada world, that is unacceptable scientifiques du Québec (ACS), that do not suit them.” whistleblower who resigned and not in the public’s best the Association science et bien —BBC News science over industry interference and interests. The purpose of commun (ASBC), the Canadian correspondent Pallab political manipulation during science is the betterment of Science Writers’ Association Ghosh, in a column about the drug approvals process in humankind and we can’t do (CSWA), the Professional the Canadian government’s the 1990s that job if our findings will Institute of the Public Service muzzling of scientists be distorted or suppressed.” of Canada (PIPSC), the —Alan I. Leshner, CEO World Federation of Science American Association for the Journalists (WFSJ), and CJFE Advancement of Science

10 ACCESS TO INFORMATION

Governments continue to give journalists and other information requestors the runaround By Paul Knox, with reporting contributed by Paula Todd

e live in amazing times. Each the Toronto Star: “We are in the hands Compared to the rest of the world, day’s news brings fresh evi- of government agencies who use fee Canada is looking increasingly shabby dence of the exhilarating, estimates, legislated time delays, and on ATI/FOI. U.S.-based news agency Wliberating power of informa- often simple refusal to respond, to delay Associated Press filed requests last year tion. Never have so many billions of release of information.” for data on terrorism charges and con- people enjoyed access to such a vast Just before he left office last fall, victions in 105 countries that have FOI range of ideas, facts and statistics, and the former Alberta Information and Privacy laws. Canada asked for a 200-day exten- creations of their fellow human beings. Commissioner Frank Work blasted his sion, whereas Turkey supplied the infor- Dramatic events repeatedly under- government for creating 38 separate mation in seven days, India within a score the importance of freedom of legislative overrides to block requests month and Mexico within two months. expression combined with access to for information. The practice could turn Despite the obstacles, coura- information and the tools for commu- the province’s FOI law into “a piece of geous reporters who carry a torch for nicating it. Dictatorial regimes topple Swiss cheese,” he said. Federal Informa- fact-based journalism and meticu- in North Africa. Official wrongdoing tion Commissioner Suzanne Legault lous research are refusing to give up. is exposed in dozens of countries. A was more measured in her 2010–2011 Federal access requests by the news forlorn English teenager intent on annual report—but her message was media totaled 5,234 in the year ending taking his own life is rescued after clear. “The exercise of discretion in March 31, 2011—a 41 per cent increase someone in Canada acts on his cyber- determining which information to over 2009–2010. cry for help. disclose has been skewed toward greater One of those requests was filed by What a contrast to the attitude of protection of information,” Legault the Winnipeg Free-Press in the spring Canadian governments. For them, the wrote. She added that the number of of 2010. In April 2010, reporter Helen information revolution isn’t something ATI exemptions claimed every year on Fallding asked Health Canada for a to be celebrated. For far too many national security grounds has tripled study examining the link between proof politicians and officials, it’s apparently a since 2002–2003. water quality and a deadly H1N1 flu serious threat. The picture is not entirely gloomy. outbreak at the St. Theresa Point First Across the country, governments Every year, industry group Newspapers Nation in northern Manitoba. Reporter are finding new ways to stop Canadians Canada conducts an FOI audit, sending Mary Agnes Welch soon took over the from uncovering public records and identical requests to several governments, story from Fallding, and it took 20 telling one another about them. They’re and comparing the responses. Its 2011 months and a complaint to Legault’s subjecting Access to Information (ATI) report praised Saskatchewan municipali- office to get Health Canada to surren- and Freedom of Information (FOI) ties for their speedy no-hassle release of der the document. Despite extensive requests to extensive delays, and claim- contract documents. But in Winnipeg, blacked-out passages, its conclusions ing a growing number of exemptions the same kinds of documents are kept were clearly so disturbing that the Free- from disclosure. (ATI is the term used secret—and there were few other bright Press made Welch’s report the top story for the federal and some provincial spots. “Something that was supposed to be in its Dec. 15, 2011 edition. Even then, systems; FOI is used in others.) Report- a right to information has become a right Health Canada refused to allow the ers face special obstacles designed to to enter into a long, convoluted process,” study’s author to be interviewed. These keep them from shining a light in dark says Fred Vallance-Jones, the audit’s author days, Welch isn’t filing ATI requests at official corners. Says Kevin Donovan, and a professor of journalism at the Uni- the rate she used to—dealing with the a longtime investigative reporter with versity of King’s College in Halifax. stalling and roadblocks has become too

11 ACCESS TO INFORMATION

LEFT: Suzanne Legault, federal Information Commissioner

access laws where certain information is automatically released in 10 days,” he says. Others call for information commissioners to be given the power to order the release of documents, as permitted in some provincial laws. “If they don’t have the power to do their jobs I don’t know how it can work,” Vallance-Jones says. Many believe governments need to overhaul their management of information, setting higher standards for retention and storage—which in turn would make it easier to release it routinely to the public. (Some data was supplied to the Newspapers Canada researchers as unreadable image files or on antiquated paper printouts.) In January 2012, after federal Treasury Board President Tony time-consuming. “It should be a routine fied for exemption. “Access precedents Clement disclosed plans for an “open part of our day, and it’s not,” she says. do not exist,” Donovan observes. “The government partnership initiative,” In some jurisdictions, bureaucrats journalist must fight the same battle federal and provincial information create special hurdles for journalists each time.” commissioners responded by calling and others who are likely to publicize Journalists can smooth the process for significant improvements to records information (as opposed to businesses by working with information commis- management and a national system for or individuals requesting personal data). sioners and access co-ordinators, who are declassifying information. The Newspapers Canada audit found generally well-meaning. “Where there All Canadians, not just journal- that in Ontario, requests from reporters, is the will, access works,” Suzanne Craig, ists, enjoy the rights conferred by ATI watchdog groups, academics and oppo- integrity commissioner with the city of and FOI laws. We are also guaranteed sition politicians were far more likely “freedom of thought, belief, opinion and than others to take longer to process, expression” by the Charter of Rights and be denied in full or in part, or be aban- “Something that was Freedoms. As was written in last year’s doned. Such requests are often chan- Review: “Freedom of expression and nelled into Ontario’s contentious issues supposed to be a access to information are joined at the management system, designed to flag hip; the more we know about our world, potential public-relations problems. At right to information the broader our range of ideas and cre- the federal level, they may be referred ative expression will be.” to the Privy Council Office, ostensibly has become a right At best, Canada’s ATI and FOI laws because the requested material might need to be strengthened. At worst, if be the subject of confidential cabinet to enter into a long, their credibility is steadily eroded, they discussions. will fall into disuse. Use it or lose it? As At the Star, Donovan successfully convoluted process.” Linden McIntyre of the CBC’s the fifth used FOI laws to investigate reports of estate told the Ryerson conference: “You abuses in nursing homes, children’s aid Vaughan, Ont., told a conference on press have to take ownership of the things societies and group homes for the devel- freedom at Toronto’s Ryerson University you’re free to do.” opmentally challenged. But officials in March 2012. But she added that this initially sought to charge the newspaper will is often lacking in high circles. Paul Knox teaches journalism at Ryerson tens of thousands of dollars in search fees. Donovan believes Canada should University. During several decades in the The Star eventually got the fees reduced, adopt the practice, common in the news business he has been a reporter, editor, but it had to pay the money up front United States, of making disclosure the columnist, broadcaster and foreign correspon- while it argued that the information was rule instead of the exception. “What dent. He served on CJFE’s board of directors of public interest and therefore quali- is needed is an American-style set of from 2000 to 2006.

12 ACCESS TO INFORMATION

2011 Global Right-to-Information (RTI) Rating “The right of access to Rankings indicate Canada’s ACCESS TO information laws are outdated information is a foundation By Laura Tribe for citizen participation,

Despite being an open democracy, Canada has ranked nothing more than average good governance, public in an international survey of access to information. In 2011, Canada ranked 40th in the world’s first Global Right to Informa- administration efficiency, tion Rating. Published by the Halifax-based Centre for Law and Democracy, in partnership with Access Info Europe, the rating ranks the 89 countries in the accountability and efforts world that have right to information laws based on the actual access to information the legal framework provides. to combat corruption, media Canada shared its 40th place spot with Estonia and Montenegro, and scored only marginally higher than the overall average, with a total of 85 out of a pos- and investigative journalism, sible 150 points. Holding Canada back is the Access to Information Act, which has not been human development, social updated since it was created in 1983. A number of the countries that scored higher than Canada have recently overhauled their access to information (ATI) inclusion, and the realization legislation, making their legal framework far more up to date than ours. With particularly low scores in the Scope (13 out of a possible 30) and of other socio-economic and Exceptions and Refusals categories (11 out of 30), it is clear that although some government information is openly available to Canadians, a significant amount civil-political rights.” is not. When it comes to our legal structures, Canada’s ATI laws leave much to be desired. —The Atlanta Declaration and Access problems don’t stop with the law. The National Freedom of Infor- Plan of Action for the Advancement of the mation Audit 2011, administered by Newspapers Canada, highlights additional Right of Access to Information problems within access to information systems’ actual operations. (February 2008) Surveying federal, provincial and municipal governments, the audit revealed that wait times for ATI requests frequently take longer than the standard 30-day response period. Additionally, the audit found inconsistencies in the types and amounts of information released.

Laura Tribe is CJFE’s web and social media editor.

88% of provincial access to information requests in B.C. are not responded to within 30 days.

13 ACCESS TO INFORMATION

• Taxpayers footed a $16,000 bill to fly Defence Minister Peter MacKay from an exclusive Newfoundland fishing lodge to a nearby airport in a Cormorant helicopter while he was on vacation. MacKay was also caught inappropriately using military personnel for political purposes when emails revealed that his office ordered military staff to investigate politicians who had criticized him for taking the 30-minute ride.

• The RCMP began spying on socialist trailblazer Tommy Douglas in 1936, three years earlier than previously known. For more than four decades, the RCMP’s security branch followed the first national NDP leader and former Saskatchewan premier by monitoring his speeches, analyzing his writing and eavesdropping on his private conversations because of his links to the peace movement, and for associating with Communist Party members.

• When the Canada Science and Technology Museum was planning their exhibition, By Susan Mohammad “Energy: Power to Choose,” they sought out sponsors, including those in the oil industry, and gave these sponsors a seat at the table as the exhibition’s content was debated. The Imperial Oil Foundation and Encana Corp. are among the major sponsors of this Documents obtained exhibition, which paints a rosy picture of the oilsands.

through reporters’ • Health Canada officials advised the federal government to list chrysotile (a form of asbestos that has been linked to cancer and respiratory disease) as a hazardous material access to information (ATI) under the UN’s Rotterdam Convention. The government ignored the advice, and derailed international efforts to add the known carcinogen to the list of hazardous substances. requests often produce • Federal bureaucrats ordered references to the “Government of Canada” to be replaced eye-popping revelations with “Harper Government” in communications copy in an attempt to politically brand the public service. of mismanagement, over- • More than 700 CBC employees earn at least $100,000 each year. We know this because spending and dubious the CBC was forced to publicize certain financial records after the Federal Court of Appeal ruled in favour of its competitor, Quebecor, which had submitted hundreds of practices—despite the ignored ATI requests over the CBC’s spending habits. The Crown corporation fought to keep the records private, arguing that their journalistic, creative and programming stalling and secret pro- activities constitute an Access to Information Act exemption.

cedures that mar Canada’s • Civil servants participated in a government-staged re-affirmation citizenship ceremony for “new Canadians” at the Toronto studios of Sun News Network. Documents showed ATI system. Without ATI, federal bureaucrats and Sun News employees organized a ceremony separate from other scheduled Citizenship Week events, and ultimately agreed to include civil servants when Canadians would not have a last-minute call for new Canadians garnered a low turnout. learned about critical An efficient ATI system is about our right to freedom of expression. Article 19 of the issues regarding our Universal Declaration of Human Rights may guarantee us all the right to “seek, receive and impart information and ideas through any media and regardless of frontiers,” but health, privacy, security too often governments inhibit this in practice by placing unreasonable restrictions on it. Ultimately, transparency and ATI go hand-in-hand when measuring a healthy and how our tax dollars democracy. When ATI works, it empowers Canadians to hold decision-makers accountable for the actions that impact our day-to-day lives. are spent. For example: Susan Mohammad is a Toronto writer and broadcast journalist who has written for Maclean’s, The Atlantic, Canadian Business and the Ottawa Citizen.

14 ACCESS TO INFORMATION

By Dean Beeby

began using the Access to Infor- was ever jailed or fined. And the infor- soon stretched to include a broad swath mation Act as a young journalist mation commissioner, it turned out, had of material that once was readily acces- during the golden age of freedom only moral suasion to offer in most cases. sible. Time-consuming consultations I of information (FOI) in Canada, Still, requestors became more educated with other government departments are the period just after the bill became and aggressive. Both sides were still rea- permitted under the Act, and suddenly federal law in 1983. All of us were neo- sonably matched in the tug-of-war over requests were subject to lengthy con- phytes then, both the requestors and documents. The sponsorship scandal was sultations. In the meantime, the infor- the bureaucrats. No one really knew evidence that great FOI-based stories mation commissioner’s office, once an where the loopholes in the legislation were still within reach. Call it the silver FOI beacon, lost its fervour. Junior staff were, and no one really understood the age of FOI in Canada. replaced aggressive veterans, and the consequences of flouting the law. The In 1998, the number of Access to commissioner championed high-profile bureaucrats and politicians were largely Information Act requests spiked as new cases but allowed too many requestors’ on their best behaviour. The number of political forces shook up Canadian public complaints to grow stale from neglect. requests filed each year was small. The affairs. The National Post was founded The age of lead had arrived. Canada, inboxes were manageable. that year, and gave itself a strong FOI once a global FOI leader, had become The Mulroney years were bountiful, mandate. The Reform Party of Canada an international laggard. despite frustrations. The virgin field of also became the official Opposition in The future of FOI is bleak under FOI produced a bumper crop of stories 1997 and, using its new parliamentary a government that pays lip service to about government waste and hypocrisy. resources, soon took better advantage of openness, and tries to distract with the A couple of my own books could not the Act. The result was a sharper, better- Open Government initiative, which have been written without successful informed opposition and press, bringing pushes databases but steadfastly refuses access requests. Journalists would never more depth to public debate. to allow citizens to pull information. acknowledge it at the time, but those The Reform Party became the Fee increases seem inevitable. The chal- were the salad days. The courts were Canadian Alliance in 2000, then was lenge now is to build an FOI coalition, supportive, and the information com- folded into the Conservative Party of including businesses and journalists, missioner was a crusader in our corner. Canada in 2003, which went on to form that by the next election in 2015 will Things changed in the mid-1990s. the government in 2006. The party had clamour for an access-to-information The Chrétien program cuts of 1995 become familiar with the Access to Infor- regime designed for citizens rather cleared out the clerical ranks, and left mation Act—especially its loopholes— than governments. the government’s document-filing during its years in opposition. Once systems in chaos. Bureaucrats and poli- in government, Tory officials quickly Dean Beeby, deputy bureau chief in ticians became more obstinate about exploited the weaknesses of the Act. Ottawa for The Canadian Press, is a releasing embarrassing information after Cabinet documents are largely excluded frequent user of FOI systems and has it became clear there were no serious from the reach of the Act—and so the conducted FOI seminars for the CBC, penalties for impeding access—no one definition of cabinet confidences was the CAJ and others.

It takes an average of 395 days to resolve an ATI complaint in Canada.

15 CIVIL SOCIETY

Is the Canadian government deliberately withholding funds from dissenting civil society organizations? Maybe, maybe not.

he story broke on Jan. 24, 2012: A But even the perception places a chill former employee of ForestEthics, on free expression By Grant Buckler an organization opposed to the TEnbridge Northern Gateway oil pipeline from Alberta’s oilsands to the British Columbia coast, said the federal government had threatened Tides Kairos Canada and Kairos), a coalition of John Lewis, Kairos’ program co- Canada with loss of funding if it contin- churches and religious organizations that ordinator for international human rights ued supporting ForestEthics. had received money from the Canadian and Middle East partnerships, says he Andrew Frank, who said he was International Development Agency doesn’t know why Kairos lost its funding, told about the threats by his supervisor (CIDA) for 35 years. The clumsy way only that CIDA’s evaluation of Kairos’ at ForestEthics and by Tides Canada’s the deed was done ensured it received funding proposal was positive. energy initiative director, also said For- more media attention than it might In March 2009, the federal govern- estEthics had fired him the previous day have otherwise: Bev Oda, minister of ment named University of Toronto (Jan. 23), when he announced his inten- international co-operation, inserted the professor Aurel Braun chair of the board tion to take the story public. word “not” into a recommendation that of Rights & Democracy, a human rights The accusations might have had Kairos’ funding be continued—but she agency set up in 1988 by the Brian less impact if not for comments by Joe did so after Margaret Biggs, president of Mulroney government. Braun and other Oliver, natural resources minister, in an CIDA, and other senior CIDA officials, directors, all appointed around the same open letter released by his department had signed a positive recommendation. time, soon came into conflict with two weeks earlier. Referring to envi- Then, Jason Kenney, minister of citizen- Rémy Beauregard, named president of ronmental groups opposing the pipeline ship, immigration and multiculturalism, Rights & Democracy in 2008. Tensions as “radical,” Oliver attacked them for accused Kairos of anti-Semitism in a mounted over grants to B’Tselem, an receiving some of their funding from speech at the Global Forum for Com- Israeli human rights group, and partner international special interest groups, and bating Anti-Semitism. “We have articu- organizations Al Haq and Al Mezan. said the environmentalists “threaten to lated and implemented a zero-tolerance Braun accused the three organizations hijack our regulatory system to achieve approach to anti-Semitism,” he said. of being linked to extremists; Beaure- their radical ideological agenda.” Oliver “What does this mean? It means that gard disagreed. went on to suggest that the environmen- we eliminated the government funding The conflict led to allegations of tal review process for the pipeline might relationship with organizations…who mismanagement, and a negative perfor- need to be shortened and changed. promote hatred, in particular anti-Sem- mance review of Beauregard that was Did the federal government really itism. We have defunded organizations, sent to government officials without threaten Tides Canada with repercus- most recently like Kairos.” Beauregard being allowed to see it. sions if it continued to fund Forest- Toronto-based Kairos is backed by After an acrimonious board meeting in Ethics? We don’t know. But this is by 11 respected religious groups. Though January 2010, Beauregard died of a heart no means the first episode that suggests the organization has criticized the Israeli attack. Soon after, Rights & Democracy that disagreeing publicly with this gov- government’s treatment of Palestinians staff demanded the three directors’ resig- ernment’s agenda can cost civil society in the West Bank and Gaza, it has also nations. An audit of the organization by organizations dearly. explicitly stated that it does not support consulting firm Deloitte did not support Late in 2009, the federal govern- a general boycott or economic sanctions allegations of mismanagement. ment cut off funding to Kairos: Canadian against Israel, and favours a two-state Nonetheless, in early April 2012 the Ecumenical Justice Initiatives (also called solution in the Middle East. government announced it would shut

16 CIVIL SOCIETY

down Rights & Democracy. Though it that opposed the war in Afghanistan particular government or party,” he says. was founded as an arms-length organi- and the Israeli blockade of Gaza, lost Roch Tassé, co-ordinator of the zation, its functions will be moved into its CIDA funding in 2009. In 2010, the International Civil Liberties Monitoring the Department of Foreign Affairs and New Brunswick Coalition for Pay Equity Group in Ottawa, sees a marked differ- International Trade. lost its funding from Status of Women ence between this government and past In June 2010, the Standing Commit- Canada, the budget of which had been ones. “I’ve been working in the NGO tee on Foreign Affairs and International cut by the federal government in tandem world for most of my career,” he says. Development wrote a report on the with a change in funding criteria that “This is unprecedented.” situation, stating that: “It is abundantly excluded advocacy groups. In 2009, Some might argue that when you clear to the Committee that a significant Canadian Policy Research Networks, a accept funding from any source, you factor underlying the dispute between 15-year-old non-profit socio-economic open the door to their influence on your certain members of the Board and policy research group, closed after losing activities. This is why some organizations, Mr. Beauregard and the organization its federal funding. like Amnesty International, avoid govern- were differing views on the current Voices-Voix, a non-partisan coalition ment funding. dispute in the Middle East.” of organizations founded in 2010, docu- Is Ottawa merely focusing its dollars The Canadian Council for Inter- ments these and other cases on its website, on causes the government believes Cana- national Co-operation (CCIC), an voices-voix.ca. dians support? If so, perhaps the govern- umbrella group for Canadian NGOs, In a February 2012 report on the ment has too narrow a view of what received CIDA funding for 40 years new competitive funding mechanism that Canadians believe in. until the summer of 2010. The loss of CIDA introduced in 2010, CCIC warned Withholding public funds from CIDA funding eliminated 70 per cent of of a “chill on advocacy activities as a result civil society organizations at odds with CCIC’s budget and forced it to lay off 17 of the widely shared perception that CIDA government positions is not the exact of its 25 employees. looks unfavourably on organizations that equivalent of imprisoning dissidents or The federal government has not said do policy and advocacy work, especially in closing down newspapers, but it certainly why CIDA declined to continue CCIC’s areas that are controversial for the current doesn’t suggest a belief in the value of funding. The group, however, had spoken government or when advocacy efforts are free and open discussion. “There’s a direct correlation between freedom of expression and democracy,” “Some might argue that when you accept Shore says. Organizations afraid of losing funding aren’t likely to say publicly what funding from any source, you open the door they know the government doesn’t want to hear. You may or may not call that to their influence on your activities” censorship, but can you call it healthy? Grant Buckler is a freelance journalist based out against a government plan to freeze critical of current policies.” in Kingston, Ont., and moderator of CJFE’s foreign aid spending after 2010, and In the latest federal budget, the freedom of expression listserv. against Kairos’ defunding. Gerry Barr, government allocated $8 million to the then president of CCIC, was quoted in Canada Revenue Agency to tighten a Canwest News Service report as saying: the rules governing political activity by ING “It really is hard not to see the prospect organizations with charitable status and D of defunding as anything other than an to step up enforcement. The budget example of efforts at political chill.” also hints at restrictions on international N CCIC also focuses on policy and funding for Canadian charities. advocacy, notes Julia Sanchez, now its Has the Canadian government U president and CEO, and “this govern- moved into a new era of using funding ment has been very clear about its to pressure civil society groups that dis- F total lack of interest in funding policy agree with its positions? Many people advocacy-oriented organizations.” The think so. “I know for a fact there is a chill,” government wants civil society to stick says Darren Shore, communications to delivering services, she says. co-ordinator at Voices-Voix. But Shore There are other examples. Alterna- doesn’t put all the blame on the present tives, a Quebec-based social justice group government. “This issue is not about any

DING N U F CYBER NATION LINKS AND LIBEL Why hyperlinking is not publishing, and why that matters: implications of the 2011 Crookes v. Newton decision

By Peter Jacobsen

rookes v. Newton had the potential to set the publishing world on its ear, and so it was one of those rare Canadian cases that had the international legal community buzzing in anticipation. The issue was whether the act of creating Ca hyperlink to defamatory material constituted publication, thus making the person who created the hyperlink liable in damages along with the person responsible for the defamatory website the link leads to. The implications were enormous. Had the Supreme Court of Canada (SCC) found the hyperlinker liable in the circumstances, it would have imposed an enormous burden on authors to vet every hyperlinked reference to ensure it was free of defamatory material. Not surprisingly, the SCC found that merely hyperlinking to defamatory material is not publication, and, in and of itself, does not constitute defamation. However, the case is not without its subtleties. What is interesting is that while the majority held that individuals could not be found liable for repeating the defamatory words, two of the judges (including the chief justice) thought it necessary to dissent, in part to make the point that referring to the contents of a hyperlink with approval could be defamatory. Thus, just because the Court found that hyperlinking did not constitute publication, this does not mean that all hyperlinking is legally acceptable. They also made the point that a defamatory meaning will be discerned from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.” The Court was clear that it was only dealing with those hyperlinks that require the user to click the hyperlink to access the information—called “shallow” or “deep” hyperlinks in the trade. It left to another day the dilemma caused by emerging technology where “automatic hyperlinks” display the information with virtually no actions taken by the user. The question will be whether inserting “automatic hyperlinks” constitutes publication. As it stands, simply inserting a hyperlink into “a publication,” will not constitute a defamatory publication, but may be seen as defamatory if the author cites the contents of the hyperlink with approval and states, for example, that it contains true fact. For ABOVE: Editorial cartoon by Jugoslav Vlahovic, example, if the author of an article provides a hyperlink to a defamatory article that courtesy of the International Editorial Cartoon alleges someone is dishonest, and the author writes “go to this site to read the truth,” Competition of the Canadian Committee for the author may be found to have “published” a defamatory statement and be held liable World Press Freedom (CCWPF). in defamation. Consequently, care should be taken when an author goes so far as to refer to a hyperlinked material as telling the truth, expressing a correct opinion about someone or citing the hyperlink with approval. In short, the Court has cleared up the simple question but has yet to deal with its more complex next-generation offspring.

Peter Jacobsen is a CJFE Board member and a founding partner of Bersenas Jacobsen Chouest Thomson Blackburn LLP, a firm that practices, among other things, media law and defamation law (for both plaintiffs and defendants) and provides advice on public interest media related issues.

18 CYBER NATION THE PRICE OF PEEKING Lawful access sends signal Canada is open for ‘Big Brother Inc.’ business

By Michael Geist

ast year, Privacy International—one munication, such as web browsing, email regulatory environment for ISPs, requir- of the world’s leading privacy orga- and web-mails, social networks, peer to ing them to submit a report describing nizations—released the results of peer communication, chat and videochat.” their equipment and surveillance infra- L a multi-year investigation into the Endace Accelerated, a New Zealand-based structure within months of the law taking shadowy world of the commercial surveil- company, promotes the “power to see all for effect. Moreover, they would actively work lance industry. Dubbed “Big Brother Inc.,” Government,” and the U.K.-based Gamma with law enforcement agencies to test the investigation placed the spotlight on Group offers “turnkey lawful interception their facilities for interception purposes, more than 100 companies that specialize projects” that include SMS interception, and even provide the name of employees in covert surveillance technologies, which speech identifying tools and data retention. involved in interceptions to allow for pos- are typically sold to governments and law In all, the investigation reveals how sible RCMP background checks. enforcement agencies. online surveillance has become a massive In addition to the surveillance require- Governments in Asia and the Middle global industry—one that makes it easy ments, the Bill would also give the govern- East have provided a ready market for tech- for law enforcement agencies to implement the power to install its own equipment nologies that can monitor Internet activi- ment surveillance capabilities, and send a directly onto private Internet provider disturbing message that online expression networks. Section 14(4) states: “The Min- can be tracked and monitored. ister may provide the telecommunications Some Canadian companies, including service provider with any equipment or B.C.-based Vineyard Networks, that spe- other thing that the Minister considers the cialize in deep packet inspection of Inter- service provider needs to comply with an net traffic for lawful interception purposes order made under this section.” were included in the report. Deep packet This amounts to giving government inspection allows Internet service provid- the power to decide what specific sur- ers (ISPs) and other network providers to veillance equipment must be installed on look at parts of messages and transmissions private ISP and telecom networks. over a network; it’s often used to keep With ongoing doubts about the networks secure, but has also been used ability of Canadian ISPs to pay the to infer the habits of consumers. Yet more multimillion-dollar costs associated with important than the existing Canadian sur- new surveillance equipment (and some veillance industry is the potential market speculation the government is prepared in Canada for surveillance technologies. to provide tens of millions of dollars in Most of the attention on proposed assistance), the government may ultimately Canadian Internet surveillance legislation shift toward a model in which it buys the ties and create a chilling effect on freedom has focused on the mandatory disclosure surveillance equipment and uses Section of expression. But Canada is not innocent of Internet and telephone subscriber 14(4) to require the Internet providers to in this regard. New online surveillance information without court oversight. But install it. If that is what the government has legislation, Bill C-30, features provisions just as troubling is the plan to create a in mind, Bill C-30 will soon look like a that appear to open the door to using massive new surveillance infrastructure, giant Canadian “open for business” sign such tools. which has enormous free speech and to Big Brother Inc., placing freedom of The Privacy International investiga- privacy implications. expression at risk. tion revealed that surveillance companies Bill C-30 requires ISPs to acquire the commonly promote virtually unlimited ability to engage in multiple simultaneous Michael Geist holds the Canada Research monitoring capabilities to governments and interceptions, and gives law enforcement Chair in Internet and E-commerce Law at police agencies. For example, Italian-based agencies and officials the power to audit the University of Ottawa, Faculty of Law. He Innova offers “solutions for the interception their surveillance capabilities. Should it can reached at [email protected] or online at of any kind of protocols and IP-based com- take effect, the Bill would create a new michaelgeist.ca.

19 CYBER Nation We use the Internet every day, and Canadians are among the most engaged Internet users in the world. But do you really know what’s going on behind the scenes?

% 45 of all cell phones in use in Canada are Remote access smartphones. The technology now exists that makes it possible for government agencies to remotely install software on cell phones that allows them to trace location, listen to phone conversations and take pictures with the cell phone’s camera.

Sweeping censorship In February 2011, BC Ferries blocked any site with sex ed or abortion content on its Wi-Fi network as part of a sweeping block on sites with any sexual content. Facebook Fever 3 Other 44% of requests denied 9 Defamation Penetration in select countries 56% of requests fully or partially complied with CANADA 51.22% 1 Privacy & CHINA Security 0.03% MONACO 80.82%

EGYPT ICELAND Between January and June 2011, Google received 13.02% 68.12% nine content removal requests involving 13 items from the Canadian courts, government officials and/or law enforcement. US 50.25% UAE 58.48% 130,000+ People have who signed OpenMedia’s petition to stop Bill C-30.

BILL C-30

hosts infected by spyware 1,295originating in China The proposed Investigating and Preventing Criminal Electronic 79% Uncovered by Toronto-based Citizen Lab Communications Act (also known of Canadian households had access The interdisciplinary laboratory based at the Munk School of Global Affairs at the as the Protecting Children from Internet to the Internet in 2010. However, University of Toronto found that the hosts were spread across 103 countries and Predators Act) would require ISPs to among households with an income of that 30% of infected hosts were considered “high-value” targets: foreign affairs release subscriber info if police request $30,000 or less, only 54% did. ministries, embassies, international organizations, NGOs and media. it—no warrant would be required. The number of new proxy URIs (uniform resource identifiers) blocked daily by Guelph, Ont.-based Netsweeper. Proxies allow Internet users to get 40,000 around walls that block content. NETSWEEPER Fighting back One of the leading providers of “Internet content Ottawa-headquartered Psiphon develops filtering and web threat management solutions,” technologies that circumvent content Netsweeper helps governments and companies filtering/blocking. The company also has block access to web content. research facilities at the University of Toronto and other sites in Toronto.

Sweeping censorship In February 2011, BC Ferries blocked any site with sex ed or abortion content on its Wi-Fi network as part of a sweeping block on sites with any sexual content.

300,000 Legal protection for online Mason v. Doe: The number of comments made “Anonymity should not be by readers each month on CBC.ca. anonymity uniformly expected or ensured About 90% of these comments are in Canada simply because the Internet is made on CBCNews.ca. used as the communication tool.”

130,000+ Warman v. Wilkins Fournier: Mosher v. Coast Publishing Ltd.: “The removal of an individual’s People have who signed Anonymous posters were identified “because OpenMedia’s petition to right to remain anonymous may the court does not condone the conduct stop Bill C-30. constitute an unjustified breech of of anonymous Internet users who make freedom of expression.” defamatory comments.”

5.427M Unique visitors in Canada 110M Minutes Canadians spent on Twitter.com

Canadians Online How are we using the Internet at home?

The cost to put the infrastructure in place to comply with this is estimated in the billions, with speculation that the government 93% 19% Contribute content/participate may need to provide tens of millions 68% 58% in discussion groups (e.g., blogging, of dollars in subsidies to ISPs. E-mail Consume News Use Social Networking message boards, posting images) INFOGRAPHIC by Mark Tang [email protected] INFOGRAPHIC by Mark Tang CYBER NATION

Think you’re protected under a cloak of anonymity when you’re online? Think again

t was supposed to be a momentous Act, commonly referred to by its short day for Google. In June 2011, the title, the Protecting Children from Internet world’s No. 1 Internet search engine Predators Act. If enacted, it would force Iunveiled its new social networking Internet service providers (ISPs) to site, Google Plus, to the world. Google’s support investigations and give the vice-president of products praised police access to a customer’s private the new website for allowing users to data without a warrant. In exceptional control how they communicate infor- circumstances, “any police officer” could mation, and to whom, on the web. request customer information from an But Google faced the wrath of Inter- By Danielle Stone ISP, bypassing the courts and identifying net users, who tried to sign up to use the the “anonymous” Internet poster. site anonymously. Google forbade partic- In late 2010, former Charlottetown Toews told the House of Commons ipation in Google Plus with anything but MP Shawn Murphy blasted local web- that the legislation “is necessary in “the name you commonly go by in the sites, including those of CBC News and order to stop the proliferation of child real world”—this in a cyber world where Charlottetown’s The Guardian, for allow- pornography on the Internet,” and to many people choose to use pseudonyms ing anonymous comments on their sites. prevent individuals from committing to remain anonymous. “I am actually shocked at some illegal acts behind a cloak of anonymity. Internet outrage ensued. Message of the anonymous comments that are Eva Galperin, an activist with the boards, online news articles, status posted online,” Murphy said in a news Electronic Frontier Foundation, which updates and tweets criticized Google release after noticing several local orga- advocates for online anonymity around Plus’s identity rules. In response, Google nizations and religious groups were the the world, says there’s a cost to this sort Chairman Eric Schmidt told journalist target of disparaging online comments. of policy. “It’s very easy to scare people Andy Carvin of National Public Radio, “Some are hateful, many times untrue by saying ‘people are doing bad things “there are people who do really, really and potentially defamatory…I think if on the Internet,’” Galperin says. “They evil and wrong things on the Internet, you’re going to make a comment, you say, ‘Think of the children.’ But…to use and it would be useful if we had strong have to be prepared to put your name broader, more draconian tools [such as identity so we could weed them out.” behind it.” Bill C-30] would come at an enormous While this wasn’t the first time a More recently, in January 2012, Asso- cost to free speech.” website developer or host has taken ciate Minister of National Defence Julian For Galperin and other proponents a stand against anonymous users and Fantino warned that anonymous use of of online anonymity, recent efforts to comments on the Internet, the divide the Internet “has not escaped the attention eliminate online obscurity are ominous. between those for and against Internet of the criminal element, who have quickly Restricting the ability to speak anony- anonymity seems to have intensified adapted to make use of the Web for com- mously on the Internet will affect the recently. Over the last year and a half mitting fraud, producing and distributing most marginalized members of society, in Canada, the debate over anonymous child pornography and much more.” Galperin argues. commenting has extended beyond the The following month, Minister Remember the Arab Spring? The offices of web hosts and anonymous of Public Safety Vic Toews introduced ability to post anonymous comments bloggers’ websites to the House of Bill C-30, the Investigating and Prevent- on the Internet helped activists organize Commons and Canadian courtrooms. ing Criminal Electronic Communications the movement without fear of being tar-

Canadian company Netsweeper categorizes 5 billion URLs in order to provide clients with Internet filtering software. 22 CYBER NATION

geted by government supporters. In par- other relationships, is crucial. Canada (2001), the court had to decide ticular, protests organized and discussed This is not a debate affecting but a whether certain provisions of the via Facebook played a key role in the few individuals. Anonymous comments Canada Elections Act violated Section overthrow of the Egyptian government. make up a large portion of expression 2(b) of the Charter. One of the consid- Closer to home, Galperin says on the Internet. ered provisions requires a third party anonymity allows would-be whistle- In January 2012, a study by Disqus, to identify itself when it places elec- blowers to deliver important messages a company providing global comment tion advertising. The plaintiff, Stephen without facing harassment, embarrass- platforms to website owners, suggested Harper, argued that this requirement ment or other repercussions at work that people who use pseudonyms par- deprived third parties of the privacy and in their communities. ticipate in greater numbers on message that underlies freedom of expression, For example, in 2011 and 2012, boards and make higher quality com- and that it deterred third parties from the CBC broadcast a series of reports ments than those who use real names. exercising that freedom. Justice Cairns, on sex abuse scandals within Scouts The study evaluated half a billion com- of the Alberta Court of Queen’s Bench, Canada. Rachel Nixon, director of ments made by more than 70 million suggested that while Harper had not digital media for CBC News, says the users on the Disqus comment platform. provided any Canadian authority for ability to comment anonymously on However, it should be noted that Disqus the proposition that anonymous speech the CBC’s website allowed people who does have an interest in website owners is protected by Section 2(b) of the were either victims of the abuse, or allowing anonymous comments; it com- Charter, and while the proposition did otherwise involved with Scouts Canada, petes with Facebook, which also offers a not apply to the specific expression at to reach out to others. Their comments message board platform, but requires the issue in this case, “this argument should also helped the CBC advance the story. use of real names. not be foreclosed upon” in the future. “Our view around anonymous Part of the difficulty in this debate In the case of Warman v. Wilkins commenting is that it really allows is that while we have historically revered Fournier (2010), the Ontario Superior people to share their experiences anonymous speech (countless authors Court of Justice went so far as to support without fear of retribution,” Nixon says. have written under pseudonyms, for American courts, and the proposition “There are a number of difficult stories example), online anonymity is by no that “the removal of an individual’s right that we cover on a daily basis …We hear means a guaranteed component of free to remain anonymous may constitute an all the time from people who would be expression in Canada. unjustified breach of freedom of expres- very unlikely to share their opinions if In the United States, the courts have sion.” However, the Supreme Court they were forced to give their real name. confirmed that anonymous speech is a of Canada has never officially granted So we see that there is significant value cornerstone of the Bill of Rights and the Charter protection to anonymous speech. not only in allowing people to express First Amendment. Courts have protected While there may not yet be a solid themselves but also in giving further anonymous speech because “the interest Charter right to anonymous speech, context to the stories that we cover.” in having anonymous works Galperin suggests that if individuals enter the marketplace of can no longer rely on Internet anonym- ideas unquestionably out- ity in such circumstances, they will stop weighs any public interest reaching out altogether. in requiring disclosure as a Proponents of online anonym- condition of entry,” because ity also point to the necessary divide “it is an honorable tradition between personal and professional lives. of advocacy and of dissent,” For instance, there are aspects of yourself and because “anonymity is a that you show to your friends, but not shield from the tyranny of your employer. In the cyber world, an the majority” (McIntyre v. employer or client can search your name Ohio Elections Commis- and see every comment you’ve ever sion, 1995, United States made online, and where your personal Supreme Court). interests lie. The ability to speak out In Canada, however, ABOVE: Editorial cartoon by Liza França, personally, but anonymously, without the courts have been less courtesy of the International Editorial Cartoon Competition of the jeopardizing professional affiliations or generous. In Harper v. Canadian Committee for World Press Freedom (CCWPF).

Canadian Internet users spend 17% of their time on social networking sites.

23 CYBER NATION

there are general freedom of expression “ridicule, hatred and contempt.” But in the defamatory communication tool.” and privacy rights. So finding out the order to have her day in court, Morris had As Bill C-30 makes its way through real identity of an anonymous com- to be able to name the individuals who the House of Commons and Canadian menter is not easy. A complainant has to had harmed her. So she brought a motion courts try to balance the rights of indi- go to the website host to obtain the IP to the Court to compel the website mod- viduals in the cyber world, anonymous address of the anonymous commenter. erators, their lawyer and the web host to users are unsure of their privacy rights, and The complainant then has to take that reveal the identities of the anonymous web hosts, ISPs and others who have a part IP address to the website owner’s ISP to speakers. The Court refused to order the in the publishing of a website are left to obtain billing information (real identity disclosure of the information. In denying deal with the issue on a day-to-day basis. information) for the associated user. It’s the request, Justice Carole Brown, of Some websites, such as cbc.ca an arduous process, and many web hosts the Ontario Superior Court of Justice, (which relaunched its Internet platform implement policies where they refuse relied on earlier case law to conclude that in 2011) have decided to continue allow- to turn over identifying information while the right to free expression does ing anonymous comments on their sites, without a court order to avoid being not confer a license to ruin reputations, but they set strict user terms and policies sued by the anonymous commenter for there must be a robust standard before the prohibiting incivility and warning users invasion of privacy. As a result, people court will order the disclosure of a per- that illegal activity will not be tolerated. wanting to find out the identity of an son’s identity. Justice Brown confirmed Website publishers, to avoid being anonymous Internet user have to launch that before being entitled to obtain associated with incivility or illegal activ- a lawsuit and obtain a court order. Law identifying information, a plaintiff has ity, have taken measures to eliminate the enforcement officers investigating crim- to prove a prima facie case of defamation ability to post anonymous comments. inal activity need to obtain a warrant for against the anonymous speaker—in other For example, in September 2011, the San the information. words, it has to appear that the plaintiff Diego Union-Tribune implemented new This, understandably, places a high has been defamed. In this case, because rules requiring all users to post com- burden on Canadian courts. In 2010 the Morris had not established a prima facie ments using their Facebook account; Ontario Divisional Court confirmed case of defamation, the Court found Facebook requires users to provide their in Warman v. Wilkins Fournier that disclosure of the Internet users’ names real names. (While many users ignore courts must balance the interests of “clearly does not outweigh the legitimate this rule, they run the risk of being those harmed by anonymous Internet interests in freedom of expression and the caught by Facebook’s random checks.) comments with the freedom of expres- right to privacy of the persons sought to But Google Plus changed their tune. sion and privacy interests of anonymous be identified.” In October 2011, Google announced posters. In the 2011 case of Crookes v. But there are also cases where the that it was revising its “real names” Newton, the Supreme Court of Canada courts have ordered the disclosure of an policy to allow pseudonyms on the site. further confirmed that “the Internet’s anonymous user’s name. For example, It may have been a business decision, capacity to disseminate information has there’s the August 2010 case of Mosher v. ensuring increased use of the platform. been described by this Court as ‘one of Coast Publishing Ltd., in which a Nova Or perhaps Google decided to support the great innovations of the information Scotia court ordered weekly newspaper all forms of expression on the Internet. age’ whose ‘use should be facilitated The Coast, and Google, to provide infor- Either way, Yonatan Zunger, chief archi- rather than discouraged.’” (For more on mation about the identities of several tect of Google Plus said, “We thought… Crookes v. Newton, see page 18.) anonymous users who had posted critical that people would behave very dif- As a result, there have recently comments on The Coast’s website about ferently when they were and weren’t been cases where Canadian courts have Halifax’s fire chief and deputy fire chief. going by their real names. After watch- refused to order the disclosure of an In her ruling, Justice M. Heather Rob- ing the system for a while, we realized anonymous Internet user’s identity. ertson explained that she was granting that this was not, in fact, the case. And In 2011, former Aurora, Ont., mayor the chief and deputy chief’s application in particular, bastards are still bastards Phyllis Morris filed a lawsuit for defa- “because the court does not condone under their own names.” mation against a group of anonymous the conduct of anonymous Internet individuals who wrote critical comments users who make defamatory comments.” Danielle Stone is an associate at Blaney about her on auroracitizen.ca. At the Then in Manson v. Doe, Ontario Justice McMurtry LLP, practicing defamation and time, Morris was running for re-election J. Pepall held that “anonymity should privacy law. Prior to becoming a lawyer, she in the small Ontario city. She claimed the not be uniformly expected or ensured was an investigative journalist. statements falsely made her the subject of simply because the Internet is used as

1 billion: The total number of mobile broadband subscriptions worldwide in 2011.

24 CYBER NATION

Online news site OpenFile gives readers a stake in determining what is news

By Sophie Nicholls

n an age where tweets make head- level of communication is involved: that traditional journalism standards lines, Facebook users become sources the editor must communicate not only such as objectivity, transparency and and reader comments lead to news with the assigned journalist, but also accountability are adhered to? Dinnick Istories, the practice of journalism with the individual who suggested explains that OpenFile’s roster of more has been transformed. Increasingly, the the story. According to Toronto editor than 400 freelance journalists practice media are reaching out to the general Chantal Braganza, this can be tricky their craft as any good journalist should. public for their input, and publishing when an idea is rejected—particularly if The reporting process is just as rigorous, or broadcasting their tweets, photos and it’s propagating a specific agenda—or if determining what the real story is and videos. But OpenFile (openfile.ca), an the published story does not meet the using an adequate number of sources interactive community news site, takes contributor’s expectations. to present different points of view. It’s a collaboration to the next level. Communicating with readers “is an process that took about a year to develop. OpenFile is the brainchild of extra step you have to take,” Braganza So, what does the future hold for veteran broadcast journalist Wilf says, admitting it adds to her workload. collaborative journalism ventures like Dinnick. Launched almost two years ago “But I think the readers appreciate it. It’s OpenFile? Though Canada’s larger in Toronto, OpenFile now operates out absolutely worth it.” media outlets are not all on board, of Vancouver, Calgary, Toronto, Ottawa, According to Braganza, story idea OpenFile has made some headway with Montreal and Halifax (in late 2011, rejections are typically communicated partnerships. In 2010, it collaborated publishing was paused in Hamilton and via email, but there are times when the with Postmedia News, sharing coverage Waterloo, as audiences were not increas- contributor wants a more detailed expla- of the federal election. Dinnick hopes ing as quickly as desired). Pushing the nation from the editor. An editor may these partnerships continue to grow and boundaries of mainstream journalism also discuss a potential story idea further, eventually become the norm within the trends, OpenFile allows for an alterna- to unravel an interesting angle or focus. industry. OpenFile is currently in discus- tive point of view expressed from the Once the story is published online, the sions about their next partnership. ground up. The driving concept behind reporter is also available to offer insight, Overall, collaborative journalism the site is that news should be “commu- feedback and explanations if the contrib- opens up the discussion forum, allowing nity-powered.” Individuals email story utor is unhappy with the result. Readers citizens to engage in the process and ideas on issues they deem important, and are also welcome to comment on stories. to have their concerns better reflected. trained journalists investigate and write “Collaborative journalism absolutely Stories covered are cultivated not just the stories that make the cut. enhances free expression,” says Danny with the reader in mind, but with the “The referral has become much more Greenberg, a reader who recently pitched reader involved. For the practice to important than search,” explains Dinnick, an article exploring the standard of Mon- expand, media outlets must think outside emphasizing how story ideas these days are treal’s EMS service. “I wanted to know the box and relinquish their proprietor- often generated by the public rather than about cardiac survival rates for patients ship over generating news content. journalists themselves. “There’s going to treated in the field by Montreal EMTs. With this, a new avenue for freedom of be someone there before a reporter is, we Without OpenFile, I wouldn’t even begin expression is born, increasing the free have to accept that…but they don’t apply to know where to start…. And yet, I as flow of ideas and information. Citizens the rigours of journalism. That’s where a citizen should have access to this simple are empowered to contribute, rather we provide a service. We start creating the statistic. The collaborative efforts of readers than simply accept what they receive. valuable content.” (i.e., citizens who have a right to know) OpenFile’s editors sift through the and reporters (i.e., those who have the Sophie Nicholls is a Toronto-based journal- story pitches, distinguishing between tools to get to the information) lead to ist working as a copy editor with Metro the promising “files” and the dead-ends more people having more information.” News International. She is currently an much like a news editor would at a With all this collaboration, how intern at CJFE. daily newspaper. However, an additional does a news source like OpenFile ensure

OpenFile opperates in 6 cities: Vancouver, Calgary, Toronto, Ottawa, Montreal and Halifax.

25 CYBER NATION

Canada needs to set an example for global Internet security By Ron Deibert nother day, another announce- Canada? In fact, the connections are not ers based in Syria, was an open-source ment of hacker exploits. Only so remote. What we do here in Canada remote access tool that the Syrians this time, the perpetrator is not can have important consequences had commandeered for their purposes. AAnonymous or LulzSec, or any for what goes on abroad. Canadian Those infected by the Trojan horse of their hacker sympathizers. A group approaches to cyber security help set would have their computers fully calling itself the Syrian Electronic Army standards that other countries follow. exposed to the attackers, who would (SEA) posted email credentials, includ- When we raise the bar, it puts a spotlight then be able to remotely monitor every ing usernames and passwords, of Al on those who fall below it. Alternatively, communication and map their social Jazeera journalists, as well as a series of when we set low standards at home, we networks through email and other emails that pertained to bias in reports legitimize actions that work at cross- contacts. Whereas prior defacement and of the revolution in Syria. The SEA purposes to our core values. spam attacks had the imprecision of a boasted about it on their Arabic Face- The SEA is a curious hybrid, and sledgehammer, the Trojan horse attack book page, and went so far as to publish a model of the new type of “active is more like a carefully calibrated set of on Internet forums what they claim are defense” that is emerging among auto- pliers. Targeted attacks such as these are the private correspondences of a Syrian cratic regimes. Not formally linked to especially dangerous because they could Al Jazeera anchorwoman complaining the government of Syria, but receiving expose dissidents’ private correspon- of the apparent biased coverage she was its tacit support, the SEA undertakes dences, and even location, leading to pressured to adopt at the network. information operations in support of arrest, assault or murder. Encountering episodes such as these the regime—but does so at an arm’s- Around the world, pro-regime is unfortunately all too common in the length, so as to provide the government hacking attacks on opposition groups day-to-day routine of the Citizen Lab, with a degree of plausible deniability. Its are becoming widespread and a an advanced research and development methods are not technically complex by growing menace. China’s adversaries laboratory working at the intersection of any measure; indeed, they are among have been the most frequently tar- digital security and human rights at the the run-of-the-mill techniques widely geted for the longest period of time. University of Toronto. Although based in employed in the world of cyber crime. They are the most well-known, in part Canada, the Citizen Lab monitors global The SEA defaces and spams websites because so many other high profile cyberspace using a combination of techni- of adversaries of Assad, but also targets targets—including major corporations cal and in-country field research methods. groups that appear to have dubious and U.S. government agencies—have Working with groups in Asia, the Middle relevance to Syria, and look more like fallen victim to Chinese-based cyber East, Africa and Latin America, we docu- convenient targets of opportunity. For espionage attacks. The research our ment targeted cyber attacks on human example, the SEA once defaced the group helped to undertake in the Trac k- rights groups, and monitor censorship and website of an obscure town council in ing Ghostnet and Shadows in the Cloud surveillance practices and technologies, the United Kingdom. reports, which began with evaluations of all with an eye towards protecting and But Syrian active defense in cyber- targeted threats against the offices of the preserving cyberspace as a medium for space is evolving: the regime’s methods Dalai Lama and Tibetan Government- free expression, association and access to are showing signs of climbing up the in-exile, revealed dozens of government information. ladder of sophistication. Recently, CNN ministries, foreign affairs departments Canadians may find the SEA’s inva- profiled a malicious software program and international organizations that had sion of private email correspondences that was hidden in images that had also been victimized by the same per- between Al Jazeera reporters distant circulated among Syrian diaspora and petrators. It is noteworthy that in both from their daily lives. How is an obscure pro-democracy activities. Researchers of our reports we could make no direct hacking attack amidst a far-away civil who analyzed the malware determined connection to the Chinese government war in the Arab world connected to that the Trojan horse, which connected itself—there was no “smoking gun.” back to command and control comput- Many observers believe China tacitly

26 CYBER NATION

condones the vast cyber criminal under- operations. As recent actions by Anony- strategy among civil society networks, world as a kind of convenient malaise mous have shown, just about anyone the private sector and liberal democratic from which it strategically benefits. with a grievance can marshal an attack governments. Distributed research and China is not alone in this respect. on nearly any target of their choosing. monitoring networks that lift the lid on Over the years, our research has docu- With enough crowd support, these can cyberspace and track and analyze the mented denial of service and hacking be devastating and effective. growing threats to rights and openness attacks, information operations and other A second factor, which reinforces are critical, as are information sharing computer network exploitation against and builds upon the first, is the growing coalitions that point to best practices human rights and opposition groups pressures on governments and their and secure technologies. For liberal originating from shadowy underground armed forces to develop cyber warfare democratic governments, the growing groups whose operations coincidentally capabilities. While cyber warfare threats militarization of cyberspace has to be benefit entrenched authorities in places are often exaggerated to justify massive seen in more than the narrow terms of like Russia, Kyrgyzstan, Belarus and defense contracts, there is an undeni- the threat to national security, but also as Burma. Perhaps the most aggressive of able arms race occurring and a process a disease that is gradually undermining these is associated with Iran. In the wake of militarization unfolding. Govern- the gains that have been made in rights of the 2009 “Green Movement” that ments around the world now see cyber and networking over the past decade. sprouted in and around Iran, a group security as an urgent priority, and their These risks underscore the importance calling itself the Iranian Cyber Army armed forces are stepping up to the of building global coalitions of govern- emerged and began menacing Green challenge. However, not all of them will ments to protect and preserve cyber- Movement sympathizers at home and follow the same playbook. While the space as an open commons governed by abroad. As with the SEA, the Iranian United States and other western coun- multiple stakeholders at an international Cyber Army defaces websites and anony- tries build official “cyber commands,” level, and also the importance of creating mously spams forums with threatening employing uniformed personnel with a regulatory environment and a system messages, creating a climate of fear and clearly defined missions, the world’s of incentives to encourage responsible suspicion within the Green Movement. corrupt, autocratic and authoritarian private sector behaviour, particularly Recently, quite sophisticated attacks on regimes will likely continue to exploit when it comes to market opportunities the certificate authority systems that the cyber criminal underground. These that violate human rights. secure Internet traffic were undertaken regimes will also target a different Viewed from this broad perspec- by an individual claiming to be con- adversary, reflecting their own unique tive, the counterproductive impacts of nected to the Iranian Cyber Army. As perception of what constitutes a threat short-sighted domestic policies are put with other governments of its ilk, the to regime stability: opposition groups, in stark relief: Who are we in western Iranian regime has tacitly condoned the independent media, bloggers and jour- liberal democratic countries to criticize activities of the Iranian Cyber Army, even nalists, and the vast networks of civil the Iranian Revolutionary Guard for going so far as to applaud its efforts, while society groups pressing for openness, compelling mobile operators to share also keeping one step removed from democracy and accountability. private conversations of dissidents and formal endorsement and incorporation. For many years, global civil society activists, when we are about to pass a law Quasi-national cyber armies like networks saw the Internet and other that authorizes massive electronic sur- these are spreading for at least two reasons. new media only as powerful fuel for veillance without judicial oversight? On First, the tools to engage in cyber attacks their cause. They have gradually come to what basis can we condemn the Syrian and exploitation have become widely learn that these media can be controlled Electronic Army or other quasi-state available and increasingly easy to use as in ways that limit access to informa- hacker groups for infiltrating the com- the ecosystem of cyber crime diversifies tion and freedom of speech for citizens puters of opposition groups when Cana- and expands worldwide without check. living behind national firewalls. Now dian companies openly market offensive Today, botnets (a large number of com- there is another, more ominous, cause computer network attack products and promised computers) that can be used to for concern: cyberspace is becoming a services in Las Vegas-style trade shows? bring down virtually any website with dangerously weaponized and insecure Protecting and preserving cyberspace a denial of service attack can be rented environment within which to operate. It as a secure and open commons has to from open websites—and some even is now a domain through which global begin at home. offer real-time customer service support. civil society networks can be entrapped, Trojan horses and other so-called “Zero harassed and exploited, as much as they Ron Deibert is director of the Citizen Lab Day” exploits can be purchased from can be empowered. and Canada Centre for Global Security underground forums. We have entered Reversing these trends will not be Studies at the Munk School of Global the age of do-it-yourself information easy, and will require a multi-pronged Affairs, University of Toronto.

27 MEDIA OWNERSHIP

BELL CANADA ENTERPRISES (BCE) ASTRAL MEDIA RADIO C-FAX 1070 580 CFRA NEWSPAPERS/MAGAZINES RADIO AM 800 15% OWNERSHIP OF: EZ Rock The Globe and Mail 107.3 KOOL FM TELEVISION Sun FM 104.5 CHUM FM Report on Business AM 1150 SE (Super Écran) ENERGY 99.7 FM Canadian University Report Virgin Radio Cine Pop 98.3 FLY FM Real Estate Collection AM 650 TMN C 100 FM SHORE 104.3 FM HBO Canada 103.5 QMFM CJAY 92 FM MPix 104.9 JRFM TELEVISION Classic Country AM 1060 Family MAJIC 100 FM CTV CJFW FM Disney Junior 94.5 The BEAT FM CTV2 TEAM 1260 Viewer’s Choice 93.5 FLOW FM CTV News Channel 100.3 The Bear Vie 101.3 The Bounce BNN QX 104 CanalD KOOL 101.5 CP24 HOT 103 Series+ 93.9 The River MuchMusic 101.1 The Farm Télé 98.9 The Drive MTV Canada KX 96 Historia 105.3 Kool FM MuchLOUD Big Dog 92.7 Vrak AM 580 MuchMore 102.3 The Bear Disney XD K FUN 99.5 MuchMoreRetro 101.5 The Bear MP (Musique Plus) FAB 94.3 MuchVIBE BX 93 Musimax Country 105 Juicebox Funny 1410 TeleToon TEAM Radio, 1040 MTV2 Canada NewsTalk 1290 TeleToon Retro TEAM Radio, 1410 TSN NewsTalk 610 CFTK-TV (TERRACE, B.C.) TEAM Radio, 1210 TSN2 102.9 K-Lite CJDC-TV (DAWSOM CREEK, B.C.) TSN Radio 990 RDS 820 CHAM TSN Radio 1050 RDS2 Oldies 1150 TSN Radio 1290 RDSINFO Star 96 NHL Network Canada 890 CJDC ESPN Classic NRJ Fashion Television Rouge FM CORUS Bravo! 97.7 HTZ FM ENTERTAINMENT Book Television boom FM Discovery Channel Bear 106.9 Discovery Science CJAD 800 AM RADIO Discovery World HD CHOM 97.7 The Peak 95.1 ID (Investigation Discovery) MAX 104.9 B101 SC (Science Channel) K 93 FM Chay today 93.1 Animal Planet Big Dog 100.9 AM 770 The Comedy Network 99.5 Cat Country Country 105 Comedy Gold Capital FM 106.9 Q 107 E! KHJ CJSS 101.9 Space FOX 105.3 Variety 104.5 CJ 104 92.5 JOE FM AM 630 CISN Country 103.9 News 880 AM 1460 CJOY Magic 106.1 TELEVISION SHAW AM 900 ABC Spark Vinyl 95.3 Channel 12 (DURHAM, ONT.) TELEVISION Y108 CHEX Peterborough Global TV FM 96 CKWS Action CKWS 104.3 CMT (Canada) BBC Canada 107.5 Dave FM Cosmopolitan TV Dejaview 91.5 The Beat DUSK DIY Network Canada More 103.9 Encore Avenue Global Reality Channel AM 980 HBO Canada HGTV FM 96 Movie Central Food Network Canada 103.1 Fresh FM Nickelodeon (Canada) History Television 99.1 Fresh FM OWN IFC The Wolf 101.5 Sundance Channel (Canada) Movietime 100.5 KRUZ Teletoon Mystery 102.1 The Edge Teletoon Retro National Geographic AM 640 Telelatino Showcase Q107 Treehouse Showcase Diva 99.3 FOX W Movies Slice AM 730 W Network TV Tropolis CKNW AM 980 YTV Twist TV Classic Rock 101 CJOB 68 Power 97 MEDIA OWNERSHIP

QUEBECOR

NEWSPAPERS TELEVISION TVA (SUN MEDIA CORPORATION) “SOCIETIES NEED TO HAVE ACCESS TO A DIVERSITY OF LCN Le Journal de Montréal Sun TV MEDIA AND A PLURALITY OF POINTS OF VIEW. AND Le Journal de Québec Argent Calgary Sun Prise 2 THIS WHY WE ALWAYS CHALLENGE AND CONFRONT Edmonton Sun Yoopa + Ottawa Sun THE IDEA OF HUGE CONGLOMERATES OF MEDIA OR Toronto Sun Winnipeg Sun OF MONOPOLIES AND OLIGOPOLIES—THAT, I THINK, 24 Hours (TORONTO, CALGARY, VANCOUVER, EDMONTON) 24 heures (MONTRÉAL, OTTAWA) VIOLATES THE RIGHTS OF THE POPULATION.” Barrie Examiner MAGAZINES Belleville Intelligencer Dernière Heure —FRANK LA RUE, SPECIAL RAPPORTEUR ON Brantford Expositor Magazine Animal FREEDOM OF EXPRESSION FOR THE UNITED NATIONS Chatham Daily News 7 jours Cobourg Daily News tv hebdo Cornwall Standard-Freeholder Le Lundi Fort McMurray Today Échos vedettes Kingston Whig-Standard star système Niagara Falls Review Star Inc. North Bay Nugget Clin d’oeil Orillia Packet & Times ﬁ lles ROGERS Owen Sound Sun Times fa Pembroke Daily Observer Cool! Peterborough Examiner decoration chez soi RADIO Port Hope Evening Guide 660 AM MAGAZINES clodine Sarnia Observer Country (93.3, 107.1) Advisor’s Edge Rénovation bricolage Sault Star JACK FM Advisor’s Edge Report Les idées de ma maison Simcoe Reformer Lite 95.9 Assurance Côté jardins St. Catharines Standard Mountain FM 106.5 Avantages espace parents St. Thomas Times-Journal Mountain FM (107.1) Baby & Toddler Moi & Cie Stratford Beacon Herald Sonic (102.9, 107.5, 104.9, 94.5) Beneﬁ ts Canada femme plus Sudbury Star ROCK (105.3, 106, 97.7, 97.9) Bout de Chou TV 7 jours Timmins Daily Press FAN 960 Business Research Services The Daily Herald Tribute (GRAND PRAIRIE, ALTA.) The River 107.7 Canadian Business The Daily Graphic (PORTAGE LA PRAIRIE, MAN.) World FM (101.7) Canadian Capital The Daily Miner and News 91.7 The Bounce Canadian Corporate Counsel Association The Recorder and Times star 98.3 Canadian Directory of Shopping Centres Welland Tribune The Ocean 98.5 Canadian Grocer Woodstock Sentinel Review (1310, 95.7, 570, 680) Canadian Healthcare Manager News 1130 +259 WEEKLY TITLES 92.1 CITI FM Canadian Insurance Top Broker 102.3 Clear FM Canadian Investment Review Lite 92.9 CARDonline 600 CKAT Chatelaine 98.1 CHFI Châtelaine MAGAZINES CHEZ 106 Connected A+ 96.7 CHYM Connected For Business Les Affaires EZ Rock (99.3, 100.5, 105.3) Conseiller Bel Âge Magazine K-Rock 105.7 Cosmetics Condo Direct 105.3 Kiss Cosmétiques Coup de Pouce Kiss 92.5 Directory of Restaurant & Fast Food Chains Canadian Gardening Kix 93.5 Directory of Retail Chains Canadian Living Kix 106.7 Drugstore Canada TRANSCONTINENTAL Décormag Q 104 (104.3 FM) Enfants Quebec Elle Québec Q 92 Flare Elle Canada SN 590 The FAN HELLO! Finance et Investissement 102 FOX L’actualité NEWSPAPERS Fleurs, Plantes et Jardins Y 101 L’actualité pharmaceutique Journal Métro Good Times 102.3 BOB FM L’actualité médicale Amherst Daily News The Hockey News Magazine LouLou Cape Breton Post Investment Executive LOULOU The News (NEW GLASGOW, N.S.) Le Journal Bel Âge Maclean’s Truro Daily News Journal Constructo TELEVISION Marketing The St. John’s Telegram Magazine Voir Vert Citytv (TORONTO, VANCOUVER, Monday Report on WINNIPEG, CALGARY, EDMONTON) The Western Star (CORNER BROOK, NFLD.) Magazine les 100 Leaders de la Construction Retailers & Shopping Centre News OMNI (CALGARY, EDMONTON, VANCOUVER) Journal Pioneer Maison d’aujourd’hui MoneySense OMNI.1 The Charlottetown Guardian Maison Direct National OMNI.2 Moose Jaw Times Herald More Pharmacy Practice The Biography Channel Prince Albert Daily Herald Premium, l’intelligence en affaires Poupon Sportsnet +110 WEEKLY, BI-WEEKLY AND MONTHLY TITLES Québec Vert G4 Tech TV PROFIT Style at Home The Shopping Channel Québec Pharmacie Vancouver Magazine Rogers TV Sportsnet Vita OLN The Medical Post Western Living The National List of Advertisers Today’s Parent 29 WHISTLEBLOWERS

Canadian whistleblowers face great obstacles with little or no legal protection—just for doing the right thing

By Arnold Amber

hen it comes to the protec- provides whistleblowers with protection tion of whistleblowers, Canada against victimization and dismissal. ranks near the bottom of In 2007, Canada finally passed its Wwestern democracies that have Public Servants Disclosure Protection Act, taken up the issue. which established a procedure for the We are deficient when it comes to a disclosure of wrongdoing in the federal strong legal framework and the develop- public sector, including the protection ment and administration of protection of whistleblowers. But the Public Service

protocols in corporations and govern- Modernization Act made things worse for PHOTO: REUTERS ment. There is also an extremely aggressive federal employees, because it prohibits ABOVE: Allan Cutler pushback by companies, governments and present or former civil servants from others against whistleblowers when their suing the federal government because of Despite these dismal conditions, a institutions are accused of wrongdoing. issues once they become whistleblowers. number of Canadians have taken the chal- When asked why Canada has such (See fairwhistleblower.ca for an analysis lenge to raise issues of wrongdoing, first a meagre record of whistleblowers suc- of the shortcomings of the PSDP Act.) internally with their employers, and when cessfully taking on private corporations, To make matters worse, along came that did not change anything, by going David Hutton, executive director of Federal Christiane Ouimet. A longtime bureau- public. The FAIR website details cases Accountability Initiative for Reform crat, Ouimet was appointed the first federal involving more than 30 whistleblowers; (FAIR), this country’s pre-eminent whistle- public sector integrity commissioner by the their targets include abuse in federal, pro- blowers organization, answers quite bluntly: Conservative government in 2007, and was vincial and city governments, the RCMP “Because they have all been smashed down responsible for the administration of the and local police departments, the Cana- by their employers with threats about their newly passed whistleblower protection law. dian Armed Forces and other institutions jobs or lawsuits if they go public.” But the watchdog became the hound including a hospital and a union. Here, In fact, there is no direct legal pro- dog three years later when Sheila Fraser, from FAIR, are five prominent examples. tection in Canada for whistleblowers then Canada’s celebrated auditor general, working in the private sector. (See last began an investigation into Ouimet’s per- Joanna Gualtieri year’s Review for “Whistleblower Protec- formance. Ouimet immediately resigned, Gualtieri’s saga began in the early 1990s tion Still in its Infancy in Canada” by and Fraser later issued a damning report, when she complained about waste and Phillip Tunley for a rundown of the legal disclosing that Ouimet had intimidated extravagance in the purchase of high-end situation in this country.) employee whistleblowers and engaged in accomodations for Canadian diplomats While Canada still fumbles with “retaliatory actions.” posted abroad. Among the examples of protection rights, the first law in the The investigation also found that waste she chronicled was a multimillion- United States to protect those we now call during Ouimet’s tenure, only five inves- dollar mansion in Tokyo that was allowed whistleblowers in the federal civil service tigations were launched into the 228 to stand empty for three to four years was passed way back in 1863. The law pro- complaints filed concerning alleged while the diplomat who was to occupy it tected them from wrongful dismissal, and wrongdoing, and not even one instance received hundreds of thousands of dollars even provided a percentage of the money of wrongdoing was deemed to have a year to rent a luxury apartment, also recovered or damages won by the govern- occurred. Lastly, it showed that 19 out of in Tokyo. She also claimed that million- ment. Since then, federal and state govern- 22 of Ouimet’s staff had left in the previ- dollar condos in Tokyo were used to ments have passed a number of other laws ous year, and that complaints from some house the ambassador’s butler and chef, a which have expanded protection in both of them triggered the investigation. (It violation of the rules. the public and private sectors. The British was later reported that Ouimet received Following her reports, Gualtieri only got around to passing legislation $500,000 in severance for her 25 years of claimed foreign affairs brass began a in 1998, but it includes a provision that service in the federal civil service.) pattern of harassment that eventually

30 WHISTLEBLOWERS forced her to go on medical leave. In cerns were being ignored due to pres- 1998, she filed a $30-million lawsuit sure from drug company lobbyists. After against the federal government, claiming years of dispute with Health Canada, all department officials emotionally abused three were fired in 2004. and ostracized her. In 2011, Dr. Lambert was reinstated The case dragged on for 10 years at by the Public Service Labour Relations various court levels before Gualtieri and Board. The cases for the others are being the government reached an undisclosed appealed to Canada’s Federal Court. settlement. During those years, Gualtieri The three were awarded the first CJFE PHOTO: CANADIAN PRESS took other action as well—she founded Integrity Award last year. ABOVE: Richard Colvin FAIR (Federal Accountability Initiative for Reform) the activist organization Dr. Nancy Olivieri memos to 79 government officials, includ- that works to protect whistleblowers In 1998, Dr. Olivieri, a scientist at the Hos- ing those in the Foreign Affairs and National who protect the public interest. pital for Sick Children in Toronto and clini- Defence departments. When no action was cal professor at the University of Toronto, taken, Colvin went to the Military Police Allan Cutler discovered evidence suggesting that a drug Complaints Commission. Although 22 Cutler became a key whistleblower in she was testing might be life threatening. public servants were subpoenaed to testify, the sponsorship scandal, and a prominent Apotex Inc., which partly funded her only Colvin did so after the Department of witness in the Gomery inquiry. research, insisted that she should not publish Justice lawyers sent letters to them. A procurement officer with Public her findings, and threatened legal action if Meanwhile, the issue boiled over on Works Department in Ottawa, Cutler she were to inform the patients in the trials. the political level: the minority Conserva- refused to go along with improper pro- The University refused to intervene in spite tive government kept insisting that there curement practices, and as a result suf- of its responsibilities for public health and had been no torture, no cover-up and the fered retaliation from management over for scientific integrity. Canadian military had done no wrong, but the course of many years. He lodged After six years of legal proceedings the other parties eventually forced a House a complaint with his superiors, which and independent investigations that sup- of Commons committee meeting. prompted a departmental audit of the ported Dr. Olivieri’s findings, she reached Colvin told the committee that all advertising and public opinion division. a settlement with Apotex in 2004, which detainees transferred by Canadians to During the sponsorship investigation, included a substantial payment to her. Afghan prisons were likely tortured, and Cutler tabled an inch-thick document However, the company refused to pay, many of the prisoners were innocent. He that contained meticulous notes, memos claiming that Olivieri had violated the derided the policies of Canada’s Armed and his own diary detailing how the rules terms of the settlement by “disparaging” Forces, which did not monitor their condi- were being broken. It can be argued that the company or its drug. tions, took days, weeks or months to notify Cutler’s testimony was a key factor in the After another four years of litiga- the Red Cross, and kept poor records. downfall of the Liberal government in tion, Apotex was ordered by the Ontario Colvin said that for Afghan intelligence the 2006 federal election. Superior Court to pay up. In response, the interrogators in Kandahar, torture was “a company launched a new lawsuit against standard operating procedure.” The ‘Health Canada Three’ Dr. Olivieri. As of publication, this latest Government ministers responded In 1998, three Health Canada scientists lawsuit has not been settled. immediately to Colvin’s testimony with in the Veterinary Drugs Directorate an all-out attack on his credibility. Then of Health Canada, Dr. Shiv Chopra, Richard Colvin Defence Minister Peter McKay told report- Dr. Margaret Haydon and Dr. Gérard Although he does not like being referred ers Colvin’s evidence “was not credible…. Lambert, blew the whistle on the drug to as a whistleblower, and says he was only what we’re talking about here is not only approval process for bovine growth doing his job, diplomat Richard Colvin hearsay, we’re talking about basing much hormone. They said human health con- faced a most ferocious attack when speak- of his evidence on what the Taliban have ing against government wrongdoing. been specifically instructed to lie about if His opposition: Prime Minister Stephen captured.” During the continuing political Harper, Defence Minister Peter MacKay, uproar Prime Minister Harper prorogued their cabinet, their parliamentary caucus Parliament for two months to deflect atten- and the Conservative Party of Canada. tion from the issue. Colvin was a senior diplomat in Afghanistan in 2006–2007. He repeatedly Arnold Amber was a longtime executive producer raised concerns about the potential for with CBC Television. He was a union representative torture of prisoners the Canadian military involved in an early federal government consultation PHOTO: S alman A ghvami ABOVE: Dr. Shiv Chopra handed over to Afghan authorities. He sent on the drafting of whistleblower legislation.

31 WHISTLEBLOWERS

the erosion of public support for the whose mandate is “Protecting whistle- TRUTH AND CONSEQUENCES war and changed U.S. policy. blowers who protect the public interest,” Blowing the whistle is risky business • Jeffrey Wigand spilled the beans about says that it’s only after whistleblowers go the nicotine his tobacco company public that they discover “it’s not just By Arnold Amber was putting into cigarettes to addict their immediate boss or a colleague that smokers. It ignited the debate that led they are up against, but perhaps an entire CJFE launched a new award last year to to stronger non-smoking regulations department, perhaps an entire govern- honour Canadians who, at great personal in many parts of the world. ment, desperate to avoid bad publicity.” and professional risk, report wrongdoing • Cynthia Cooper and Sherron Watkins Many whistleblowers say they in their workplaces. Called the CJFE exposed financial illegalities at originally brought their concerns to Integrity Award, it recognizes whistle- WorldCom and Enron, respectively, their immediate superiors or other senior blowers who have attempted to correct two giant enterprises that eventu- managers because they believed that behavior in the public or private sectors. ally went bankrupt. Their informa- doing so was part of their job. Their first In creating the award, CJFE believes that tion led to lengthy prison terms for motivation was to stop the wrongdoing, whistleblowing is a right of free expres- senior executives. and they went public only when they sion, and affirms its belief that there should became convinced their employers had be greater protection for whistleblowers in Despite the fame some whistleblow- no intention of fixing the problem. Canadian law and practice. ers have gained, nearly everyone who Now, probably more than ever, we Whistleblowing is generally undertakes the path less travelled faces vicious need whistleblowers. Over the past few taken by those who combine an extraordi- and unrelenting opposition from their years nearly all levels of government nary sense of conscience and determination employers—whether government, corpo- have changed how they keep an eye on with a desire to make society better and rate or another type of institution. Most industries. Monitoring has been replaced safer. What most Canadians do not know is whistleblowers are censured, defamed, dis- with a self-regulation system where the how difficult it is, and how great the risks ciplined, sometimes fired and, in extreme companies themselves are required to are. People who are brave enough to go cases, sued by those trying to cover up the do the inspections and report the results public about misdeeds in the workplace wrongdoing that had been done. back to government. In many cases, are often attacked by their employers and Becoming a whistleblower is like there is no independent evaluation in branded ratfinks, squealers, snitches or competing in a marathon, not a sprint. A sectors ranging from aviation to food, disloyal traitors—or worse. Alan Levy, an whistleblower’s first obligation is to make water quality to rail traffic, and on and associate professor at Brandon University, the complaint within the organization on. The inadequacy of the situation in Brandon, Man., who has done consider- where they work; only if this process does was vividly exposed earlier this year able research on whistleblowers in Canada, not address the wrongdoing will they then when the federal auditor general blasted estimates that nearly all end up losing their have protection when they go public. Transport Canada because 70 per cent of jobs—either because they are hounded In many cases, the harassment and Canadian aviation companies were not out or actually fired. ensuing arbitration or court cases result inspected last year. In his report Michael There are many definitions of what in stress, mental pressure, anguish and Ferguson said: “Transport Canada is not whistleblowers do, but the common anxiety for the whistleblowers. And adequately managing the risks associated elements are that they have inside infor- nothing moves quickly. In Canada, for with its civil aviation oversight.” mation of wrongdoing or negligence example, it took 18 years for the charges The battle to improve whistleblower involving corruption, misconduct, illegal by Joanna Gualtieri against the Foreign protection is reminiscent of the struggle or unethical activity or other actions Affairs department to be settled, while years ago to promote other human that can adversely affect the public’s Dr. Nancy Olivieri of Toronto is in year rights, such as racial equality and sexual well-being, or the strength of a country’s 14 of her fight with a drug company. orientation. That means a need for more democratic processes. Whistleblowers are needed because education in the public realm, and direct Whistleblowers, particularly in the they know more about what is going on and sustained pressure on politicians to United States, have taken on government where they work than anybody else. They pass better laws and commit to effec- and corporations in famous cases that know when and how corporations are tive enforcement (not lip service) in the have changed public policy, protected the cutting corners in quality and safety, when public sector. Moreover, protection for public from harm, or led to the arrests of proper procedures are not being followed in whistleblowers must be extended to the senior executives of major corporations: government dealings, and so on. private sector. These changes will be an But the problems for whistleblow- uphill battle, but one that is definitely • Daniel Ellsberg gave the Pentagon ers are usually very difficult. The Federal worth taking on to create a better and Papers, about the Vietnam War, to The Accountability Initiative for Reform safer Canada. New York Times, which contributed to (FAIR), a Canadian support organization

32 CROSS-CANADA REPORTS

Cross-Canada Free Expression Reports Compiled by Amy Johnson

British Columbia Saskatchewan Ontario Campaign signs removed MP wins defamation lawsuit Information and Privacy The British Columbia Civil Liberties Saskatoon MP Maurice Vellacott won a Commissioner Opposes Bill C-30 Association (BCCLA) called attention to defamation lawsuit in February 2012 Ontario Information and Privacy “draconian” actions by municipal officials related to a suggestive question posed Commissioner Ann Cavoukian has been in Vancouver and Chilliwack during the by George Laliberte during the call-in vocal in her opposition to the Conserva- Harmonized Sales Tax referendum cam- portion of a televised elections debate in tive government’s draft of Bill C-30, paign. Reports released by the BCCLA 2006. Laliberte called from the Liberal the Protecting Children from Internet in June 2011 claimed that officials from campaign office and asked Vellacott if Predators Act. In an editorial for the both municipalities had been removing he had sexually assaulted a secretary at National Post, Cavoukian called the Bill, political signs from public spaces such a specific church. Vellacott denied the which would permit any police officer as boulevards. sexual assault and association with the to acquire the personal information church in question. This is a unique case of a client from their Internet service of a defendant’s question, rather than provider without a warrant, “a system of statement, being deemed defamatory. expanded surveillance,” and Cavoukian emphasized, if enacted, Bill C-30 would “substantially diminish the privacy of Ontarians and Canadians as whole.” For Alberta more on Bill C-30, see page 19. MLA threatens funding cut for school board Sun News TV interview: an exercise Conservative MLA Hector Goudreau Manitoba in free expression? invoked strategic intimidation tactics Removal of signs in classrooms The Canadian Broadcast Standards in a letter to an Alberta school board in The Border Land School Division of south- Council ruled in February 2012 that Sun February 2012, by threatening to delay western Manitoba mandated the removal News Network host Krista Erickson’s inter- or cancel funding for a new school if of “Ally” signage advocating support of view with interpretive dancer Margie Gillis the board expressed any views critical a safe space for youth of various sexual did not violate the group’s ethics code or of the provincial government. Betty orientations from classrooms of an hinder the interviewee’s right to respond. Turpin, superintendent for the Holy Family Altona elementary school. In March 2011, The interview garnered more than 6,500 Catholic Regional Division (HFCRD) parent complaints led to the decision to complaints regarding the host’s treatment school board, had written to the MLA’s take down the signs, and debate over the of her guest on the program in June office about potential funding for a infringement on open academic dialogue 2011, which featured Erickson mimicking dilapidated school in her division, and and freedom of expression on the basis of interpretive dance, verbally berating Gillis the HFCRD sent a video to provincial discriminatory viewpoints has ensued. and criticizing the Canada Council for the authorities revealing the extent of the Arts’ funding of Gillis’ dance foundation. deterioration. The school board chair Manitoba Press Council shuts down The interview was vindicated by the believes their requests were interpreted The Manitoba Press Council ceased Council’s decision that Erickson was as criticism. After Goudreau’s threatening operations on Jan. 1, 2012, after its entitled to “determine the course of the letter garnered negative response, he remaining newspaper participants interview, and raise topics the interviewee resigned as head of a cabinet policy pulled their subsidies, eliminating the might not have anticipated,” and that committee on community development in organization’s funding. The organization the guest was offered the chance to leave, early March. functioned as a watchdog over jour- which she refused. nalistic ethics for 27 years. Its closure marks another year of decline in support for such accountability organizations.

33 CROSS-CANADA REPORTS

Québec New Brunswick Nova Scotia Journalist organization Blogger arrested and charged Coalition formed to improve fights for ATI with criminal libel access to information La Fédération professionnelle des In January 2012, the Fredericton Police In July 2011, former Nova Scotia Informa- journalistes du Québec (FPJQ), a non- Force executed a warrant to search the tion Commissioner Darce Fardy formed governmental organization of journalists home and seize computer equipment the province’s Right to Know Coalition that defends freedom of the press and the of local blogger Charles LeBlanc. The (RTKC) as an effort on the part of journal- public’s right to information, have been search came in response to a series of ists and former government workers to notably vocal about access to information critical posts he wrote regarding the vie for improvement of provincial freedom (ATI) issues this past year. The FPJQ municipal police, including allegedly of information legislation. Fardy, who recently joined a coalition of media outlets libelling a Fredericton police officer. The has witnessed the increasing struggles in the campaign to protect journalists’ Canadian Civil Liberties Association sent of navigating the legislation from both right to defend themselves before the Fredericton Police Chief Barry McKnight ends since his time in office, is currently Commission d’accès à l’information, after a letter regarding their concern over the leading the RTKC in drafting an appeal Hydro-Québec recently called attention to possible infringements the case makes to Nova Scotia’s current information com- an article from provincial bar legislation on LeBlanc’s right to free expression. missioner, with a list of recommendations that could deny it. The FPJQ has also LeBlanc is currently facing criminal libel on how to improve upon and facilitate published alerts on their website about charges in court. the common use of the legislation. the silencing of federal scientists, and called upon its members to submit Bill tabled to promote artists’ ATI experiences in a survey that would free expression demand more transparency and account- Nova Scotia Communities, Culture and ability to the system in Québec and at the Heritage Minister David Wilson intro- federal level. duced the Status of the Artist legislation, defining support for the arts and culture Journalist’s home raided by police sector, on March 30, 2012. The new In February 2012, officers from the Sûreté legislation seeks to emphasize the prov- du Québec (SQ), Quebec’s provincial ince’s commitment to artists’ freedom police force, invaded the home of of expression rights in its promotion journalist Éric-Yvan Lemay in response to of their “fair treatment” and financial his coverage of confidential medical files support for various modes of expression. he had encountered in the open at four This legislation was developed from the hospitals in the greater Montréal area. province’s five-point plan to improve Police officers confiscated the journalist’s support for arts and culture, released in computer and clothing items he wore February 2011. during his investigations at the hospitals, and they took photographs of his hands. Condemnation by groups including Paris- based Reporters sans frontières, the FPJQ, CJFE and the Canadian Association of Journalists followed. The SQ dropped the criminal charges nearly a month after the initial raid.

Voter turnout was a dismal 61% in the 41st General Election on May 2, 2011.

34 CROSS-CANADA REPORTS

Prince Edward Island Newfoundland Nunavut Paper runs names, salaries Whistleblower protection Native-Language Program for Teens of government agents entrenched in St John’s In September 2011, the Inuit Broadcasting In a gesture towards transparency and St. John’s City Council passed a new Corporation introduced its fourth original accountability, Prince Edward Island’s bylaw in February 2012 aimed at the program titled Qanurli? What Now?, a tele- Eastern Graphic newspaper ran a list legal protection of city workers who vision show directed at Inuit adolescents of the salaries and job titles of P.E.I. report misconduct. The bylaw had been with the purpose of providing a voice for, employees from three federal government undergoing drafting and revisions for and local representation of, “the everyday agencies. The move was intended to more than two years before a recent life of Inuit youth.” Qanurli? What Now? protest the fact that P.E.I. is the only whistleblower complaint over improper combines a series of local youth discus- province in which freedom of information spending at a city depot pushed the sions, on topics such as local modes of legislation prohibits the release of the issue to the top of the city’s agenda. expressing and exploring Inuit culture, salary data of its provincial employees. The motion is considered a movement with satirical comedy segments, and is The story, which ran the week of March towards accountability, and encourages filmed in Inuktitut with English subtitles. 26, 2012, garnered mixed feedback: employees to express their dissent and The second season begins this fall. While some bureaucrats were displeased concerns freely and legally. with the exposure and non-federal employees “staggered at the salaries,” many government officials supported the transparency and the poignancy of such a piece before the federal budget was announced in early April. Northwest Territories Yukon Bureaucrat whistleblower Top marks in national FOI audit Yukon moving to limit protesters asked to resign Prince Edward Island’s capital city in public spaces Bill Turner, a policy adviser at the NWT received the highest municipal ranking In June 2011, a group of Yukon protesters Business Development Investment in Newspapers Canada’s National Audit organized a campsite at the territory’s Corporation (BDIC), was asked to resign of Freedom of Information 2011, by fully legislature in order to draw attention to from his part-time security post at the releasing information requested within a study revealing the Yukon’s rates of legislative assembly after leaking emails 10 days on average. Charlottetown was homelessness. The Yukon government to the media. Turner, who was pursuing also praised by Newspapers Canada issued eviction notices to the protesters an affirmative action grievance against for fully releasing information that in late November 2011, ordering the the BDIC regarding their hiring policy doesn’t necessarily fall under access individuals off the peaceful protest site, for out-of-region First Nations workers, to information law. Moreover, the city’s with the threat of forced removal after discovered printed copies of MLA Daryl Queen Elizabeth Hospital complied with 48 hours. Since that time, MLAs in the Dolynny’s emails in the open while on requests for senior officials’ credit card territory have begun preparing to amend duty at the legislative assembly. In these records, releasing all desired information the Financial Administration Act to allow emails, Dolynny allegedly offered to in less than 30 days. officials the right to create new rules testify for the BDIC that Turner had been to restrict the use of public space, and responsible for an earlier information further abilities to fine and remove those leak, in exchange for the dismissal of who disobey. charges Dolynny was facing relating to an unpaid loan guarantee. After Turner leaked Dolynny’s emails, he was asked by N.W.T. labour relations to halt communications with the media, and the manager of security at the legislative assembly asked him to submit his resignation.

In the 2012 budget, the federal government cut the CBC’s funding by $115 million over three years.

35 APPENDIX: MAJOR COURT DECISIONS 2011–2012

Legally Supreme Court of Canada Canadian Broadcasting Corp v. Canada (Attorney General), 2011 In a bid to make court proceedings more public, the CBC, Groupe TVA, La Presse and the Speaking Fédération professionnelle des journalistes du Québec brought a Section 2(b) freedom of the press Charter challenge against the Québec government’s “decorum” policy and the By Paula Todd Rules of Practice, which prohibit broadcast of official court recordings and limit journalists from filming, taking photographs or interviewing at certain spots in court hallways. But while the Supreme Court of Canada acknowledged such rules violate the media’s It’s been a year of push and pull on the Charter rights, it ruled the limits were reasonable for the serenity of the administration of free speech frontier, with Canadian courts justice (Oakes test). Increased press access might generate anxiety. There were, however, making it both easier and a little tougher two brighter notes: The case affirmed the media’s constitutional right to cover the courts, for journalists to do what they do best— which should help journalists in other provinces where cameras are banned altogether. find out things, and tell other people. And since cameras inside courtrooms weren’t addressed, the issue is still in play. As the In Québec, the media couldn’t win Court stated: “Although the primary purpose of a courthouse is to serve as a place to the right to broadcast official recordings conduct trials and other judicial proceedings, the presence of journalists in the public of court proceedings. Nor could jour- areas of courthouses has historically been—and still is—authorized. When journalists nalists there loosen the rules that keep conduct themselves appropriately, their presence enhances the values underlying s.2(b), them tethered to specific locations in namely democratic discourse, self-fulfillment and truth finding.” courthouse corridors. A Montréal shock jock honed the COURT DECISION: canlii.org/en/ca/scc/doc/2011/2011scc2/2011scc2.html test for “group defamation,” while partisan bloggers were given greater latitude thanks to the immediacy of Supreme Court of Canada their medium. A Nova Scotia teenager Canadian Broadcasting Corp v. The Queen, 2011 shocked by a fake and sexually offensive News outlets that want to show viewers court exhibits—a critical component of cases— Facebook page will have to wait a few sometimes bump up against protective officials. Now, the highest court has confirmed more months until the Supreme Court there is a distinction between broadcasting court proceedings and broadcasting the of Canada considers whether she can exhibits themselves. For exhibits, the onus is on the party seeking restrictions to justify sue for defamation anonymously. And in limitations (Dagenais/Mentuck test). The Court also increased circumstances to consider, Ottawa, the dusty RCMP and Canadian including the vulnerability of the intellectually disabled accused, his acquittal and any Security Intelligence Service spy records taint to a co-accused’s trial. Radio-Canada and TVA were ultimately prohibited from of Tommy Douglas, the “father” of uni- broadcasting the accused’s police interview exhibit because other developments in the versal health care, were finally hauled case rendered the original access argument moot. into the light. COURT DECISION: canlii.org/en/ca/scc/doc/2011/2011scc3/2011scc3.html Paula Todd is journalist, lawyer and member of the Board of CJFE. Supreme Court of Canada Crookes v. Newton, 2011 In October, the Supreme Court of Canada’s decision stating that merely “hyperlinking”—inserting automatic prompts to material available elsewhere online—does not constitute a republication of the defamatory material itself, was met with a national sigh of relief. But hyperlinking can lead to liability if a defamatory statement is cited with approval. That could be considered publishing, and opens up the possibility of a defamation suit. For more on the nuances of this decision, see p. 18.

COURT DECISION: canlii.org/en/ca/scc/doc/2011/2011scc47/2011scc47.html

36 APPENDIX: MAJOR COURT DECISIONS 2011–2012

Supreme Court of Canada Bou Malhab v. Diffusion Métromédia CMR Inc., 2011 After a Montréal shock jock, apparently upset over taxi service, ranted on air about the linguistic skills, civility, hygiene and driving abilities—or lack thereof—of certain cabbies, Bou Malhab filed an action for group defamation on behalf of “[e]very person who had a taxi driver’s licence in the region of the Island of Montréal on November 17, 1998…and whose mother tongue is Arabic or Creole.” Yet, in a 6–1 ruling, the Supreme Court of Canada pointed out that indignation alone is not proof of defamation, which must be “assessed objectively, from the perspective of

an ordinary person.” Plus, the more sweeping the generalizations PHOTO: CANADIAN PRESS made by a known “polemicist,” the less likely individual harm can ABOVE: Former shock jock André Arthur occur to a single individual. “Here, an ordinary person would not have believed that the wrongful, scornful and racist comments made…damaged the reputation of each member of the group of taxi drivers working in Montréal whose mother tongue is Arabic or Creole.” The Court didn’t rule out individual injury within a group, but proscribed a judicial checklist to consider: size and nature of the group; plaintiff’s relationship with the group; target of the defamation; seriousness of the allegations; plausibility or likelihood of acceptance of the comments; and any other “extrinsic factors.”

COURT DECISION: canlii.org/en/ca/scc/doc/2011/2011scc9/2011scc9.html

Supreme Court of Canada Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 Ten years after the initial requests under the Access to Information Act, this appeal pulled together four applications by the Informa- tion Commissioner of Canada for judicial review of refusals to disclose records (including emails) within the offices of then Prime Minister Jean Chrétien, then Minister of Defence Art Eggleton and then Minister of Transport David Collenette, as well as portions of the Prime Minister’s materials in the possession of the RCMP and Privy Council Office. The applications judge refused disclosure on the first three applications, but ordered it on the fourth. The Federal Court of Appeal overturned his decision on the fourth application only. Then, the Supreme Court of Canada dismissed all appeals and the records remain off-limits to the public. This is, in part, because most of the requested material originated from or was maintained by exempt staff or offices and is not within reach PHOTO: CANADIAN PRESS of access to information law. As for the Prime Minister, he is not an “officer” of the Privy Council Office and his records and emails aren’t accessible under information laws.

COURT DECISION: canlii.org/en/ca/scc/doc/2011/2011scc25/2011scc25.html

37 APPENDIX: MAJOR COURT DECISIONS 2011–2012

Nova Scotia Court of Appeal A.B. v. Bragg Communications Inc., 2011 Special personal circumstances were raised in the ongoing case of A.B. v. Bragg Communications Inc. (an Internet service provider). A 15-year-old girl discovered a Facebook page had been created using her photograph, a slightly altered name and “humiliating” sexual details. Through her litigation guardian, the teen was granted an order requiring Bragg to identify the people behind a particular IP address. She failed, however, to convince either the trial judge or the Nova Scotia Court of Appeal to approve a pseudonym and a partial press ban to prevent the public from learning the exact information in the offensive cyber ruse. As the Court stated: “Defamation is a claim that one’s reputation has been lowered in the eyes of the public. To initiate an action for defamation, one must present oneself and the alleged defamatory statements before a jury and in open court.” Possibly anticipating an appeal to the Supreme Court of Canada—which has granted leave to hear the case—the lower Court added: “Should she be successful, one might expect that she will be lauded for her courage in defending her good name and rooting out on-line bullies who lurk in the bushes, behind a nameless IP address.” But given the intervenors in the Supreme Court case, including anti-bullying groups and the Privacy Commissioner of Canada, that conclusion will be vigorously debated.

COURT DECISION: canlii.ca/en/ns/nsca/doc/2011/2011nsca26/2011nsca26.html

Ontario Superior Court of Justice Baglow v. Smith, 2011 All levels of courts are grappling with the new cyber jurisdiction—reappraising laws made when words and images couldn’t fly around the world in a nanosecond. In Baglow v. Smith, the court noted there’s more latitude for insults and heated rhetoric online because, as with live debates, the opportunity to rebut the slurs exists almost simultaneously. The Court concluded: “A statement is not derogatory when made in a context that provides an opportunity to challenge the comment and the rules of the debate anticipate a rejoinder, unless the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.”

COURT DECISION: canlii.org/en/on/onsc/doc/2011/2011onsc5131/2011onsc5131.html

Federal Court Bronskill v. Canada (Minister of Canadian Heritage), 2011 In 2005, investigative reporter Jim Bronskill began his arduous journey to uncover the RCMP and the Canadian Security Intelligence Service’s (CSIS) dossier on Tommy Clement Douglas, a Canadian politi- cian often referred to as the father of universal health care. Douglas had died more than 20 years earlier. Applying under the Access to Information Act (AITA), Bronskill traced the summary of surveillance and suspicion to Library and Archives Canada (LAC). But LAC consulted CSIS and refused to disclose certain portions, relying on the international affairs and defence exemption (ATIA, Section 15). Clashes with the information commissioner and court officials finally culminated last year when Federal Court Judge Simon Noel shut down the paper chase. Ruling that LAC had been unreasonable and inconsistent (not to mention disingenuous, troubling and worrisome), he ordered it to make a new decision—one that carefully followed the Court’s reasons, spirit and precedents.

COURT DECISION: canlii.ca/en/ca/fct/doc/2011/2011fc983/2011fc983.html

38 APPENDIX: MAJOR COURT DECISIONS 2011–2012

Federal Court Attaran v. Canada (Minister of National Defence), 2011 Canadian law professor Amir Attaran applied under the Access to Information Act to see Depart- ment of National Defence (DND) photographs of detainees being transferred by Canadian Forces to the Afghanistan Ministry of Defence. Three of those photos allegedly showed a detainee with facial injuries. The DND refused to remove or redact “personal information” from the pictures and therefore wouldn’t let Attaran see them. When the information commissioner later held that the DND’s refusal was justified, Attaran also applied for judicial review. The Federal Court examined the photographs and said it was satisfied that the edits required to prevent potential disclosure of personal information would be so extensive as to render the images meaningless. The Court said the decision wasn’t about balancing competing interests, but rather required an approach to severance that prevents error or risk of disclosure of one’s identity. This approach, the Court said, is consistent with the general treatment of personal information under the Act, which is to be protected unless it falls within a recognized privacy exception. Attaran’s revised request—to see only the hairdos of the detainees—was also refused.

COURT DECISION: canlii.org/en/ca/fct/doc/2011/2011fc664/2011fc664.html

Federal Court of Appeals Attaran v. Canada (Minister of Foreign Affairs), 2011 Canadian law professor Amir Attaran’s quest to see Department of Foreign Affairs reports on human rights in Afghanistan gained momentum after the Supreme Court of Canada refused to hear the case. The Ottawa freedom of information proponent first became embroiled in the tussle when he was offered only heavily redacted (censored) annual foreign affairs reports from 2002 through 2006. He then sought the assistance of the information commissioner and the Federal Court, but wound up at the Federal Court of Appeal, where he was granted more access to the documents. The Court ruled Attaran didn’t have the burden of proving the minister failed to exercise discretion over the file—because that was the very file he couldn’t see. The burden of proof was on the minister to establish that the discretion was exercised in a reasonable manner. The government sought leave to appeal that decision, which the Supreme Court of Canada denied.

COURT DECISION: canlii.org/en/ca/fca/doc/2011/2011fca182/2011fca182.html PHOTO: CANADIAN PRESS

ABOVE: Amir Attaran