FIFTH ANNUAL REVIEW OF FREE EXPRESSION IN CANADA 2013–14 FREE EXPRESSION CONTENTS

Journalists at a CJFE/Al FOUNDING EDITOR Jazeera English rally for Bob Carty jailed colleagues in Egypt. The number of dollars SENIOR EDITORS that individuals can be Tom Henheffer fined for disobeying Number of Arnold Amber court orders to surren- recommendations MANAGING EDITORS The approximate der their computers, that Interim Privacy Jaclyn Law number of coun- cellphones and other Commissioner Cara Smusiak tries in which mobile devices Chantal Bernier under Nova Scotia’s Communications tabled in a special CONTRIBUTING EDITOR Cyber-safety Act. report to Parliament, Laura Tribe Security Estab- calling for reforms lishment Canada to Canada’s federal ART DIRECTION DTF Design The percentage by which the number of missing- (CSEC) conducted privacy law. records complaints submitted to the information surveillance for the PHOTO EDITOR commissioner increased from 2012 to 2013. National Security Andrew Williamson The number of years Agency (NSA) in that the Public Servants COVER ILLUSTRATOR the U.S., accord- Brian Gable Disclosure Protection ing to documents Act, Canada’s federal WRITERS leaked by Edward whistleblower law, Jesse Brown The number of Snowden. Bob Carty is overdue for its first Pierre Craig days by which independent review. Enacted in 2007, the Act Transport Canada David Hutton is supposed to be reviewed every five years. Adam Kingsmith Canada’s position on sought to extend Anita Mielewczyk the 2014 Press Free- its 30-day dead- Francine Navarro published dom Index, line for responding Radostina Pavlova by Reporters Without Jacques Poitras Borders. While Canada to a reporter’s ATI climbed two spots since request regarding Paula Todd the 2013 Index, it is still the Lac-Mégantic The number of Laura Tribe Alana Westwood eight spots down from derailment of JUST demonstrators Cara Zwibel its ranking in 2012. July 2013. arrested by police during anti-capitalist EDITORIAL ASSISTANTS THE protests held in Francine Navarro CONTENTS Montreal on Alexandra Theodorakidis May 1, 2013. 2 Free Expression Index 18 Cross-Canada Free 30 We Should Be Enraged STATS LAWYERS So why don’t Canadians Brydie Bethell 4 Expression Reports How did Canada CJFE’s Report Card care about surveillance? John Norris 2013-14 20 Freedom of the Press: Peter Jacobsen fare in protecting Quebec Journalists 32 We’re Watching Phil Tunley 6 CJFE Poll: Do Canadians The number of Sound the Alarm You Cyberbullying freedom of Care About Free federal institutions, FACTCHECKERS legislation threatens expression in Expression? 22 Anti-SLAPP Bill out of the 11 Amber Garratt free expression Stalled Ontario’s Bill Kate McCullough 9 investigated by 2013-14?  Digital Freedoms 83—which would protect 34 Q&A: Protecting the information The number of times Alexandra Zakreski in Danger What does the the RCMP arrested jour- by Francine Navarro public participation from Your Rights commissioner, Trans-Pacific Partnership frivolous lawsuits—is Four Canadian nalist Miles Howe in 2013 ADDITIONAL THANKS mean for free expression that do not store while he was covering The number of media ■ Cinders McLeod in danger of dying defenders of free outlets the RCMP asked in Canada? their employees’ anti-fracking protests in ■ Canadian Committee expression discuss New Brunswick. to submit raw footage 23 Alberta Bans their work—and instant messages for World Press 10 Feds Muzzle Scientists captured during anti- Pro-Strike Speech explain how you on a central email fracking protests in New Freedom (CCWPF) The federal government ■ Bill 45 strikes a blow can get involved server. As a result, Brunswick in 2013. These Fédération professionnelle continues to undercut des journalistes du to free expression with any information Canada’s include Brunswick News, valuable scientific research 38 Québec (FPJQ) its broad provisions About CJFE that falls under position on The number of organiza- Global Maritimes, CBC, APTN and Rogers TV. ■ Laurent Walter 12 They Blew It and stiff penalties 40 Appendix: the Access to the Global tions, including CJFE, Despite big promises, calling for the Ontario 24 Access Denied! Courts’ Access to Information Act Right to © CJFE 2014. All rights Legislative Assembly to Canada has utterly failed Ottawa’s new end Information Policies reserved. No part of this but is deleted from Information pass Bill 83. If passed, to protect whistleblowers run around access to employees’ mobile (RTI) Index, the bill would make publication may be 43 Appendix: Major 16 MP’s Sacrifice Saves information? Don’t devices cannot published by the Centre for Law and Ontario the second The approximate num- reproduced without Court Decisions written permission. Brent keep records. be recovered for Democracy in September 2013. This rank province in Canada to ber of dollars protestor CBC Integrity 2013-14 enact anti-SLAPP (stra- Katie Nelson says she Rathgeber is the first 28 Monopoly: Newspaper the purposes of places Canada in the bottom 50 per cent MP to kill his own 46 Support CJFE tegic lawsuit against was fined by Montreal Edition New Brunswick’s responding to an on an index that evaluates the quality of a public participation) police during and after private member’s bill shifting media landscape 47 Thank You ATI request. state’s national RTI law. legislation. student protests in 2012. WILLIAMSON ANDREW BY PHOTOGRAPHY

2 CJFE REVIEW 2014 CJFE REVIEW 2014 3 REPORT CARD

CJFE’s Report Card 2013-14 WHISTLEBLOWERS: EDGAR SCHMIDT suits against public participation), and most Canadians, with AND SYLVIE THERRIEN the exception of Quebecers—who have had anti-SLAPP laws Some lost, some won: Canada faces A Despite a lack of protections, brave Canadians in since 2009—have little protection against them. An initiative many battles for free expression the civil service do come forward and blow the whistle at great to change that in Ontario deserves a cautious B grade. The personal risk. The two most recent examples are Sylvie Ther- minority Wynne government has introduced Bill 83, which rien, who worked on employment insurance cases in Vancou- would make it more difficult to bring frivolous lawsuits against T’S BEEN FIVE YEARS since CJFE launched tative department, show that delays beyond the 30-day time ver, and Edgar Schmidt, a lawyer in the Justice Department people speaking out on a matter of public interest. However, the annual Review of Free Expression in Can- limit still affect almost 45 per cent of requests, while more in Ottawa. Both are granted a top grade for the personal and as of press time, the bill has yet to pass. All three parties ada. Now is a good time for reflection on how than 80 per cent of responses are partially or mostly censored. professional sacrifices they have made. have indicated support for Bill 83, but there’s no guarantee things have changed—or stayed the same. Staffing and budget cuts are crippling the ATI capacity of that support will stand, what with outside lobbying and the One of our reasons for launching the some departments (for example, see the RCMP case below). threat of an election. The fight to enact anti-SLAPP legisla- Review was a noticeable spike in free expres- There has been a significant increase in complaints about FEDERAL AND PROVINCIAL GOVERN- tion is far from over. sion issues. Five years ago, the courts were delays and a 51 per cent increase in complaints about missing MENTS' WHISTLEBLOWER PROTECTION For more about anti-SLAPP in Ontario, see Cara Zwibel’s awash in cases dealing with defamation records in 2012-13. Missing records may be the result of the F Little has been done across Canada in the past article, “Anti-SLAPP Bill Stalled,” on page 22. charges against reporters, the protection destruction of, failure to preserve or failure to create records year to develop a more active whistleblower system or to pro- of confidential sources and hate speech. concerning government deliberations and decision-making. tect those who speak out in the public interest. Major revi- Meanwhile, the access to information sys- Without major reform of the Access to Information Act and sions needed include putting teeth in provincial and federal CSEC AND THE OFFICE OF THE tem appeared to be entering an era of deep- a new law requiring the creation of records, Canadians may whistleblower legislation and providing real protection for COMMUNICATIONS SECURITY ening decay, and the Internet seemed like it could become witness the disappearance of a significant part of our history. whistleblowers. D ESTABLISHMENT COMMISSIONER both friend and foe of free speech. Unlike the United Kingdom, the United States and Austra- Leaks from former NSA contractor Edward Snowden sug- For more information, see “Access Denied!” on page 24. Five years on, freedom of expression is still very much part lia, Canada is alone in lacking specific legislation that provides gest that Communications Security Establishment Canada Iof the national debate, and it has increasingly become a touch- whistleblowers with real job security. The limited legislation that (CSEC)—Canada’s version of the NSA—has secretly been col- stone in assessing the health of Canadian democracy. A number THE RCMP: I(NCOMPLETE) covers government employees is essentially powerless, and there’s lecting the same kinds of private information as its U.S. coun- of concerns are unchanged from 2008-09: the courts remain Access to information complaints against the no protection anywhere in Canada for the private sector. As a terpart. The leaks show CSEC has been spying on Canadians an important front for freedom of expression, with decisions I RCMP tripled between 2011 and 2013. The RCMP result, whistleblowers in Canada almost always face dismissal. through Wi-Fi connections at an “unnamed” airport, collect- good, bad and mixed; the federal access to information system understaffed its ATI office so badly that it could not even ing data on businesses and politicians in Brazil, and allowing For more on this topic, see David Hutton’s article, is still in crisis; would-be whistleblowers still lack the protec- acknowledge the receipt of requests, let alone respond to them, “They Blew It ,” on page 12. security agencies from other countries access to surveillance tions to encourage more of them to come forward; and debates within the 30 days required by law. The information com- of Canadian citizens. Unfortunately, while the NSA has come continue over digital rights, Internet access and media busi- missioner couldn’t start investigating the delays because the under deep scrutiny in the U.S., and American politicians— ness models. Equally, earlier worries about government and requests didn’t even have file numbers to identify them. One ANTI-SLAPP IN ONTARIO including President Barack Obama—are being forced to speak corporate use of new technologies for surveillance of citizens request, submitted in September 2012, received a response If wealthy logging companies or developers want out on the situation, the Canadian government is staying almost have escalated to become a chorus of alarm bells. seven months later, in April 2013, with this explanation: “We B to silence their critics, it’s fairly easy for them completely silent. Worse still, the independent commissioner Adding to these troubling issues, the government has gone cannot give you a time frame for when your request will be to sue for defamation and bury their critics under moun- who is supposed to hold CSEC accountable has been unable beyond censoring “sensitive” information; now, there’s a completed at this time, but it is approximately half way thru tains of paperwork, years of litigation and expensive legal to determine what its agents are up to because of “incomplete” growing “verbal culture” in Ottawa that avoids the creation [sic] the process.” The RCMP is working with the informa- bills—regardless of whether any libel or slander has actually records, meaning the institution is essentially operating behind of communications records that could be used to hold officials tion commissioner to correct these problems, but has taken occurred. These lawsuits are called “SLAPPs” (strategic law- closed doors and without proper oversight.  accountable. This, combined with the destruction of govern- little action so far. ment documents, the disposal of archives and the shuttering of whole libraries, is leading to a “disappearance of history,” where information critical to informed public debate is failing GOVERNMENT TRANSPARENCY IN TRANS- ■ The Government Canadian Army For application to access programming activities. to see the light of day because it has been purged—or worse, PACIFIC PARTNERSHIP NEGOTIATIONS KUDOS & of British Columbia disobeying his bosses information related to For more information it wasn’t recorded in the first place. F Canada joined the Trans-Pacific Partnership MUZZLES For allowing a culture on ethical grounds. In Toronto mayor Rob Ford about the life and death of After five years, we remain convinced of the need for the (TPP) agreement in 2012 even though it meant agreeing to in which government January 2014, Drever from the Toronto Police Bill C-461, turn to page 16. officials do not create refused to deny a CBC investigation Project Review, and of the urgency with which we must fight the free all the terms previously negotiated, without actually knowing any permanent records News reporter access to Brazen 2. ■ The Government expression struggle. what they are. A draft of the Intellectual Property Chapter, of their communications a sensitive email written of Newfoundland and Once again, we begin our annual review of the state of free leaked in October 2013, highlighted just how damaging this Muzzles and, as a result, are by an army lieutenant- ■ MP Brent Rathgeber Labrador For launching expression in Canada with our Report Card—a shorthand secret trade agreement could be to free expression. One of ■ Department of failing to provide any general—in which that For killing his own private an independent review of member’s bill, C-461. The its access to information assessment of Canadian institutions and their impact on the the most concerning provisions would require Internet ser- Fisheries and Oceans, information in a full 20 lieutenant-general told Department of per cent of all access to his soldiers not to release bill had been altered by system and Bill 29. This most important free speech issues in the country. vice providers to act as copyright monitors, monitoring and Natural Resources, information requests. information to the press the government in such legislation, passed in filtering users’ content and Internet access. Canada would Environment Canada without permission—and a way that it no longer 2012, gutted access in the have to change its legal framework to align with that of the and Health Canada requested that senior reflected Rathgeber’s province by massively ACCESS TO INFORMATION U.S., which could require amending regulations for patents, For closing federal army staff reassess its “ill- interest in the disclosure broadening exemptions to libraries and destroying 4 considered” decision. of government salaries. ATI requests and giving (ATI) The federal access to information system copyright and fair use, with severe implications for the free- information critical to Kudos Instead, the bill cabinet ministers the F continues to be a source of bad news and a bad dom to publish and access information. Canada’s environmental, ■ Doug Drever, ■ Ontario Superior would have weakened power to decline requests grade. Recently released performance statistics for 2012-13, natural resource and civilian public affairs Court For efficiently protections for the by declaring them For more on this topic, see Adam Kingsmith’s article, “Digital when corrected for the distortion created by one unrepresen- Freedoms in Danger,” on page 9. health care policies. adviser for the processing the media’s CBC’s journalistic and frivolous or repetitive.

4 CJFE REVIEW 2014 CJFE REVIEW 2014 5 CJFE POLL

Q& Which of the following actions DO CANADIANS A would you take if you suspected the CARE ABOUT FREE government was monitoring your telephone calls, social media, emails EXPRESSION? or other communication? I would dramatically change the Federal employees OR OUR FIFTH ANNUAL Review of content of my communications 20% Free Expression in Canada, CJFE, in part- should be required by nership with Nanos Research, polled Cana- law to create a permanent, I would slightly change the content dians to find out their thoughts on access of my communications 17% to information practices, government retrievable record of their openness and digital surveillance—the first poll of its kind. deliberations and decision- I would not change the content FCanadians are passionate about access to information, with 75 per cent either agreeing (54%) or somewhat agreeing (21%) making at work, even when of my communications 60% that federal employees should be required to create records of these take place using their communications. Furthermore, 89 per cent either agreed Unsure 3% (75%) or somewhat agreed (14%) that federal employees should non-written forms be punished if they destroy communications records. of communication. “It speaks to an appetite to take a hard line on people who try to suppress or cover up information,” says pollster Nik Agree 54% Nanos, chair of Nanos Research. He adds that, to Canadians, Somewhat agree 21% As you may know, the current “that type of behaviour is unacceptable.” Along the same vein, more than half of those polled either Somewhat disagree 8% federal government has said it has a disagreed (36%) or somewhat disagreed (18%) with the cur- Disagree rent federal government’s assertions that it’s the most open 13% in Canadian history. Unsure 5% priority to be open and accountable. “It’s difficult for governments to reconcile the desire to be open and accountable with the pressures of governing and Would you agree, somewhat agree, managing political risks,” says Nanos. “Considering the Tories’ initial call for accountability when first elected in 2006, it must be disappointing for some to observe how accountability and somewhat disagree or disagree transparency has unfolded in Canada.” On the other hand, Canadians seemed less reactive about the There should be penalties that Canadians have more access to government secretly gathering their information. A full 60 per for federal employees cent said they wouldn’t change the content of their commu- government information, such as nications if they suspected those communications were being who destroy work-related monitored by government. The response is notably different emails and other records of how and why decisions were made, in the U.S., where a similar survey from Harris Interactive found 47 per cent of adults had changed their behaviour fol- government deliberations now than they ever had before? lowing revelations of NSA snooping, and about a quarter of and decision-making. those polled said they reduced their amount of online bank- ing, shopping and email usage. Agree 75% Agree 22% “People are increasingly conditioned to have less privacy, Somewhat agree 14% and [be subject to] more surveillance now,” says Nanos, adding Somewhat agree 21% that “the U.S. flare-ups on this issue have been more sensa- Somewhat disagree 6% tional. There hasn’t been, in Canada, a galvanizing Canadian Somewhat disagree 18% event to wake people up.” Disagree 5% Canadians were asked for their response to the following Unsure 1% questions: Disagree 36% Unsure Nanos Research conducted a national random telephone survey of 1,000 Canadians between March 6 and 12, 2014. The sample included 4% both land lines and cellphone lines across Canada. The margin of error for a random survey of 1,000 Canadians is ±3.1 percentage points, 19 times out of 20. Percentages may not add up to 100 due to rounding.

6 CJFE REVIEW 2014 CJFE REVIEW 2014 7 B:8.25” T:8” S:7”

FREE EXPRESSION

DIGITAL FREEDOMS lish a comprehensive, next-generation express themselves online. regional agreement that liberalizes trade Article 4.1 calls for the increased regu- IN DANGER and investment and addresses new and lation and restriction of temporary cop- What does the Trans-Pacific traditional trade issues and 21st-cen- ies—files that computers automatically tury challenges. We are confident that copy into their random access memory Partnership mean for free this agreement will be a model for ambi- (RAM) during routine processor oper- expression in Canada? tion for other free trade agreements in ations such as web browsing. Since it By A.T. Kingsmith the future, forging close linkages among is necessary to download a temporary our economies, enhancing our competi- version of everything we view on our tiveness, benefitting our consumers and devices, such copies are essential to HROUDED in secrecy, the supporting the creation and retention Internet usage. A definitive international Trans-Pacific Partnership of jobs, higher living standards, and the standard on temporary copies would not (TPP) has the potential to reduction of poverty in our countries.” only create an intricate layer of copy- radically alter how Canadians Yet as is the case with all multifaceted rights, but also impact the cost of access- express themselves both online and off. trade agreements, official statements can ing licensed content. SThe TPP is a relatively unknown mul- be ambiguous and enigmatic. Since the Article 16.3 posits that all signatories tilateral agreement aimed at reducing TPP has the potential to transform every- must force their domestic Internet ser- tariffs and addressing emerging trade thing from trade and unemployment to vice providers (ISPs) to act as copyright issues in the 21st century. But it has far investment and intellectual property, the monitors, meaning that the companies broader implications than the trade of only way to understand its implications that provide Canadians with Internet goods: the TPP has the power to restrict for free expression is to dissect what little access would be forced to act as digital your ability to share and receive infor- we know about it. watchdogs. Inspired by the Digital Mil- mation and communicate freely. By For starters, the Canadian government lennium Copyright Act (DMCA) and T:10.75” S:9.75” B:11” increasing the cost of accessing content lobbied heavily for two years to secure Anti-Counterfeiting Trade Agreement online, monitoring private communica- Canada’s spot at the table, believing the (ACTA), this policy would require ISPs tions, banning the use of materials for TPP was an opportunity to boost our to block access to websites that alleg- educational purposes, blocking websites economic profile. Admission came with edly facilitate copyright infringement that challenge these new rules, and insti- strings attached. Sight unseen, the gov- and screen private communications for tuting criminal penalties for those will- ernment had to agree to all previously copyrighted materials. ing to speak out, the TPP has the poten- negotiated text, including unbracketed As mentioned above, Canada could be tial to erode free expression in Canada. text still open for negotiation. As only one forced to amend dozens of democrati- How did we get into this mess? chapter has been closed to date, Canada cally instituted laws to bring them in line The TPP was established in 2005 as will be forced to implement policies we with TPP policies. Potential amendments the Trans-Pacific Strategic Economic had no say in shaping, and policies not include: bans on unlocking private mobile Partnership Agreement (TPSEP or P4); yet drafted. devices; 20-year increases to posthumous negotiations for an expanded version, patents for artistic works; criminalizing the TPP, began in 2010. According to a The TPP could petty copyright infringement for non- leaked 2013 draft of its Intellectual Prop- profit, non-commercial and educational erty (IP) Chapter, if ratified, the TPP will restrict our ability to purposes; and harsher criminal penalties further liberalize trade by restructuring communicate freely. for Internet users who refuse to comply trade remedies, technical barriers, intel- with content takedown orders. lectual property, government procure- What’s more, TPP negotiations take The fact that these negotiations have ment and competition policies. place behind closed doors, meaning only disregarded appeals for public consul- In November 2011, the TPP signa- those directly involved—appointed gov- tation and transparency show the TPP tories—Australia, Brunei Darussalam, ernment representatives and industrial definitely has something to hide. Check Chile, Malaysia, New Zealand, Peru, advisors—are privy to the policies being out openmedia.org/censorship for ways Singapore, the U.S. and Vietnam (Can- debated. Media, academics and citizen to get involved in fighting back, and fol- ada, Mexico and Japan joined negotia- lobby groups will be unable to access low CJFE as we counter this secrecy by tions in 2012 and 2013)—announced TPP-related documents until four years keeping you informed as the negotiation the broader objectives of the unprece- after negotiations have concluded. process continues. dented agreement, which would incor- Analyses of the TPP’s leaked IP Chap- CJFE’s 5th annual rE viE w OF porate over 792 million people and a ter reveal two articles and an overarch- A.T. Kingsmith (@akingsmith) is a mem- F r EE E xprE ssiO n in Canada. combined GDP of $27.5 trillion: “We ing U.S.-based coercive legal framework ber of CJFE’s Digital Issues Committee are delighted to have achieved this mile- that, when implemented concurrently, and a Ph.D candidate in political science stone in our common vision to estab- could severely restrict how Canadians at York University. It’s A BIttERs WEEt CELEBRAt ION. CJFE REVIEW 2014 9

CJFCORP45356_5thAnnual_8x10.75.indd 1 14-04-10 11:47 AM

CJFCORP45356_5thAnnual_8x10.75.indd from T11-0772 by Pratt, Rodman / Pratt, Rodman Printed At None

Job info Approvals Fonts & Images Job CJF COR P45356 Art Director Randy De Melo Fonts Client CJFE Copywriter Jonathan Careless DIN Schrift (1451 Engschrift) Ad # None Account Mgr Geoff Wilton Release Dt Apr. 1, 2014 Studio Artist Rodman Pratt Images Insert Dt NA Proofreader Angie N CJF_SmokeBomb_Balloon_m.psd (CMYK; 350 33 Bloor Street East, 14th Floor, Live 7” x 9.75” Producer Terry Wykurz ppi; 85.47%) Toronto, ON, Canada M4W 3H1 Trim 8” x 10.75” Notes Bleed 8.25” x 11” Inks main: 416.413.7301 Release Info None None Cyan, Magenta, Yellow, Black fax: 416.972.5486 Pubs None REV: 1 4-10-2014 11:47 AM

FREE EXPRESSION A Bad Year for Federal Scientists Feds Muzzle Scientists The government brazenly continues to undercut scientific research 2013 By Alana Westwood they could speak freely about their work, MARCH 86 per cent felt they could not report  Librarians begin to feel the muzzling pressure under a new code of conduct the situation. In the past year, Canada materials from, federal libraries, includ- actions that might harm the public with- for communication.  Evidence for Democracy launches its national Science Uncensored campaign, calling for free expression for scientists. has seen high levels of media coverage on ing those of the Fisheries Department out risk of censorship or reprimand, and this issue. But have we seen any change? and Health Canada. 24 per cent had been asked to alter or APRIL Rather than relenting under public Fortunately, we did not see further exclude information in government doc-  The Department of Fisheries and Oceans closes the national contaminants scrutiny, it seems that restrictions and drastic changes in environmental or sci- uments for non-scientific reasons. Fur- program, which monitored ocean pollution and its impact on marine wildlife and the pace of cutbacks have only increased. ence-related legislation in 2013. This thermore, 48 per cent reported being commercial fish stocks. The federal government asserts that its support for science is greater than that of any other government in Canadian history. More scientific institutions are clos- marks a quieter year, after the 2012 alter- aware of cases where their department or ing, and science and tech spending has ations to the Canadian Environmental agency supressed or withheld informa- MAY decreased 3.3 per cent in the past year, Assessment Act and the Fisheries Act, tion, which they believe resulted in the  After relentless public pressure, the federal government establishes an continuing a downward trend started in which included removing requirements public, media, industry or government agreement with the International Institute for Sustainable Development and the governments of Ontario and Manitoba to take over operation of the Experimental 2011. More than 2,000 scientists have for many federal assessments and rules officials being misled or misinformed. Lakes Area. In 2012, the federal government had announced it would close the been dismissed, and known cuts to per- for protecting fish habitats from serious Despite many scientists still being critically important research facility. Many suspended long-term sonnel and/or funding have been made harm, respectively. forced into silence, those who can speak monitoring projects may still be left in the lurch. to 165 research programs and facilities, Then there’s the muzzling of federal on these issues are doing so more loudly affecting almost every federal scientific scientists and other civil servants. Exam- than ever before. The past year saw major JUNE THE MUZZLING OF SCIENTISTS,  The Canadian Press reports that there has been a 15.3 per cent increase in the closure of government-funded research and monitoring institution. Canada’s ples of this silencing continue to emerge, coverage through Chris Turner’s book number of communications officers during Prime Minister Stephen Harper’s tenure. facilities, cuts to funding and staff, and global ranking has dropped from 16th and there is little evidence that condi- The War on Science: Muzzled Scientists and Some suggest that this represents an increase in the people responsible for spinning T information and muzzling scientists. denials of Access to Information requests to 23rd in expenditures on research and tions have improved since the first few Wilful Blindness in Stephen Harper’s Can- have become the norm in Canada since development related to GDP. The most accounts of muzzling in 2006. A sober- ada, and an episode of CBC’s The Fifth 2007. Hundreds of articles and news seg- dramatic recent event has been the sud- ing 2013 PIPSC report found that 90 Estate, “Silence of the Labs.” Organiza- SEPTEMBER T  The New York Times criticizes Canada’s silencing of scientists.  Stand Up For ments in dozens of publications decry den closures of, and loss of irreplaceable per cent of federal scientists did not feel tions such as the Canadian Association of Science rallies occur in 17 Canadian cities, calling on the government to unmuzzle University Teachers (through its Get Sci- scientists and appropriately fund research. ence Right campaign), Scientists for the Right to Know, and Evidence for Democ- OCTOBER  The Toronto Star reports that Alberta Environment excluded the Pembina Institute, Protesters at racy (E4D) have recently emerged in an organization that conducts environmental research and policy analysis, from the the Stand Up for Canada with the explicit agenda of end- approval process for an oil sands project expansion in relation to Pembina’s unfavourable Science rally in ing the muzzling of scientists and cut- reports on the oil sands.  The Professional Institute of the Public Service of Canada Vancouver on backs affecting scientific research. In Sep- (PIPSC) releases its survey on the muzzling of government scientists; 90 per cent Sept. 16, 2013. reported that they did not feel they could speak freely about their work. tember 2013, E4D facilitated 17 Stand Up for Science rallies nationwide. Thou- NOVEMBER sands of citizens and scientists attended,  Controversial changes to the Fisheries Act, particularly the removal of protection calling for an end to cutbacks and muz- for 80 per cent of endangered freshwater species, take effect.  Several doctors zling of federal scientists. And at univer- criticize the federal government for not releasing critical health reports on illness- causing bacteria that affect thousands of Canadians each year, resulting in death sities around the nation, seminars and in some cases.  The NDP calls for the creation of an independent parliamentary panels are popping up, with worried aca- science advisor via a private member’s bill. demics discussing the issue. While it’s unlikely that anything will DECEMBER  Fisheries Department libraries are closed and irreplaceable collections of grey reverse this trend in the short term, pub- literature (written documentation not widely published, e.g., local reports and fish lic pressure and media scrutiny is expos- censuses) are destroyed.  The House of Commons imposes a “loyalty agreement” ing the federal government’s restrictions for employees working for MPs, which could be used as a lifetime gag order. as increasingly draconian and short- sighted. Since federal scientists and other civil servants still cannot speak out, it is left to the media to keep Canadians aware 2014 of the scientific and environmental issues facing the country.  JANUARY  Alarm grows over the closures of Fisheries Department libraries and federal monitoring programs (such as the abovementioned Fisheries Department’s Alana Westwood (facebook.com/alana. contaminants program), with scientists citing threats to environmental and public westwood) is the Atlantic organizer for health.  The closure of the main Health Canada research library gains widespread Evidence for Democracy, a freelance writer attention. It is the latest of dozens of libraries to be shuttered since early 2012, and a PhD student studying conservation including those of Citizenship and Immigration Canada, and Employment and Social Development Canada. PHOTO: ZACK EMBREE ZACK PHOTO: biology at Dalhousie University.

10 CJFE REVIEW 2014 CJFE REVIEW 2014 11 WHISTLEBLOWERS

Integrity Commissioner Mario Dion

PUNISHING WHISTLEBLOWERS The failure to sanction wrongdoers is troubling; the nearly complete failure to protect whistleblowers is catastrophic. After enduring reprisals in the workplace, whistleblowers seeking help are expected to enter a legal obstacle course, with pitfalls at every step, the potential for endless delays and crushing legal costs—and with little chance of success in the end. Indeed, the Public Servants If a case does Disclosure Protection Tribunal is eventually the only body in Canada with any reach the power to protect whistleblowers, yet tribunal, the most cases never get there because whistleblower— the PSIC acts as a gatekeeper, screening all complaints, rejecting CASE OF NOTE whose career, most and sending only a handful to livelihood and the tribunal—just six cases among Sylvie Therrien mental health the more than 140 complaints of are likely in reprisal received in seven years. Sylvie Therrien was fired from ruins already If a case does eventually reach her job at Service Canada in 2013 —now faces a the tribunal, the whistleblower— whose career, livelihood and mental for truthfully sharing information legal process health are likely in ruins already— about departmental procedures in which the now faces a legal process in which other side has the other side has vastly superior that are accessible to anyone vastly superior resources (paid for by taxpayers). through access to information. resources The case may drag on for years. The law is badly written, plac- today than before the law was passed. There seems to be no (paid for by ing the onus on whistleblowers to FTER fied this by arguing work in the public relief for them in sight, with the current government refus- taxpayers). prove actions taken against them reveal- she had a “perfor- service again, and THEY ing to initiate reforms. The case were intended as reprisals. This is A ing she mance objective,” because she was The purpose of any whistleblowing system is twofold: to usually impossible. Under a simi- had been assigned not a “quota.” In fired with cause, may drag on a quota to deny an administra- she is not eligible deter wrongdoing that threatens the public interest, and to lar law in the United States (long BLEW IT for years. Employment Insur- tive investigation, for EI benefits. protect whistleblowers who put themselves at risk by report- since abandoned), only four out of ance benefits officials at Service Unable to afford Despite big promises, ing suspected wrongdoing. Canada is failing on both fronts. the first 2,000 whistleblowers succeeded. totalling at least Canada claimed her rent, Ther- Today, whistleblower laws in countries such as the United $485,000 per year, she was a “seri- rien found shelter Canada has utterly failed PROTECTING THE WRONG PEOPLE States and United Kingdom place the onus on employers to the government ous risk” to her in a friend’s home. Under the current system, few cases of wrongdoing in the fed- prove that their actions were not reprisals, thus giving whistle- swiftly suspended department, and Canadians have to protect whistleblowers eral public service have come to light (an average of about one blowers a much better chance of success. Twenty-seven per her without pay. they stripped Ther- raised more than By David Hutton per year, though the rate is improving), and there are rarely con- cent prevailed in hearings before the U.K. tribunal between First it called Ther- rien of her security $46,000 to help sequences for the perpetrators. In fact, the accused are sheltered 2000 and 2012. It is far from a sure thing, but far better than rien’s allegations clearance. She will her, but her future by Integrity Commissioner Mario Dion’s practice of refusing the odds in Canada. “false,” and justi- never be able to remains uncertain. to name alleged wrongdoers, enabling them to find jobs else- The first whistleblower to participate in the tribunal pro- N 2006, Prime Minister Stephen Harper swept where without potential employers knowing about allegations cess made a disclosure of wrongdoing in 2009, and he is cur- into power, promising federal employee whistle- of past misdeeds. Once they are outside of the federal public rently locked in a legal battle with the PSIC over which of ers—all related to the same situation—were referred recently. blowers “ironclad” protection. But seven years service, they become instantly untouchable, because the law three alleged acts of reprisal will be referred to the tribunal. The Canadian tribunal’s effectiveness is impossible to judge after coming into force, the federal government’s only applies to public sector employees. So far, the PSIC has referred only one. because of its lack of a track record: few hearings have taken Public Servants Disclosure Protection Act has One former senior executive resigned from the Canadian Even that one referral is at risk of being quashed. In a place, and no case has yet completed the process. But another failed to deliver on that promise. International Development Agency (CIDA) before Dion’s 2012 judicial review of the case, the PSIC’s investigation tribunal, the Public Service Labour Relations Board (PSLRB), The Act created two new agencies—the Office investigation into the executive’s use of government resources was harshly criticized. But after revisiting its investigation, illustrates how whistleblowers are likely to fare in this newer of the Public Sector Integrity Commissioner (PSIC) and for a private sector business was complete. The former CIDA the commission backtracked, saying it could find no repri- system. Dr. Shiv Chopra and two of his Health Canada col- the Public Servants Disclosure Protection Tribunal—which executive found a job touring the Caribbean—on a grant sals and may withdraw its referral of the case to the tribu- leagues testified to the Senate regarding alleged pressure on Ihave cost taxpayers more than $40 million to date. Yet little from CIDA. The NGO that employed him had no inkling of nal altogether. The whistleblower’s lawyer has applied for a scientists to release veterinary drugs into the food supply with- wrongdoing has been found, and even when exposed, perpe- his alleged past misdeeds and had no means of finding out, second judicial review in order to challenge this conclusion. out adequate testing for human safety. All three were fired in trators have gone largely unpunished. Worst of all, Canadian even after Dion’s report was published, because the former The second and third Canadian whistleblowers dropped 2004 for “insubordination” and their case was referred to the public servants who report wrongdoing face greater hazards executive’s identity was protected. their cases by accepting out-of-court settlements. Three oth- PSLRB when it came into being in 2005. The three spent PHOTO: CHRIS WATTE / REUTERS CHRIS WATTE PHOTO: PRESS / THE CANADIAN DYCK DARRYL PHOTO:

12 CJFE REVIEW 2014 CJFE REVIEW 2014 13

A tale of two tribunal systems: the U.K. vs. Canada The tribunal system in the U.K. covers the entire workforce—not just when it has identified them and described their acts of repri- public servants, as in Canada. Here’s how the two systems stack up: sal. This renders the tribunal powerless to order sanctions and creates the impression that Dion is shielding aggressors. Even if such sanctions were ever ordered, the aggressors can U.K. vs. Canada escape simply by leaving the public service—either by retir- Population Covered Tribunal’s Years In Operation ing or taking jobs elsewhere. The tribunal system has produced no useful results: no case has yet navigated the complete process (though some have been settled), no whistleblower has been provided with 1 2 a remedy and no aggressor has been disciplined. Given the way the law is written, it’s unlikely that any of these outcomes CASE OF NOTE will ever take place. 3 4 5 In effect, this means the protection for whistleblowers Edgar Schmidt promised in 2006 is an illusion. 6 7 8 1 2 CANADA LAGS BEHIND OTHER COUNTRIES Edgar Schmidt is a rare species During 2011, Canada became known internationally as the in Canada: a whistleblower who “Enron” of whistleblower protection. This was due to the scan- dal that occurred under the previous public sector integrity 9 10 11 3 4 managed to present allegations commissioner, Christiane Ouimet. During more than three 0.4 in a forum where they can be years in office, Ouimet received more than 200 complaints— million thoroughly examined, and one but found no wrongdoing and no reprisals. An investigation by 12 13 14 5 6 Sheila Fraser, then auditor general, revealed that Ouimet was 30 million who has suffered relatively an abusive boss who took reprisals against her own staff and, little personal damage. worst of all, did not do her job. No other developed country has had such a spectacular and public meltdown of its national whistleblowing system. Whistleblower Cases Referred To The Tribunal Successful Remedies FTER ately suspended public interest, the Under Dion there has been more activity but few useful initially him without pay government should results. Dion also lowered his sights in 2013, changing his approach- and launched an pay Schmidt’s legal A mandate so that “detecting wrongdoing” and “contributing ing the public investigation to costs. Embarrassed, sector integrity find grounds for the Justice Depart- to greater integrity in the public service” disappeared from commissioner its violation of his ment quickly the “desired strategic outcome” for his agency. These changes for assistance, employment rights. settled the employ- seem to confirm that he is not aiming to produce results. Schmidt instead But these tactics ment issues with The Canadian government, which should be rushing to took his employer, did not work. Jus- Schmidt, allowing fix this badly broken system, is instead blocking any reform the Justice Depart- tice Noel of the him to retire on by failing to launch the legally required five-year review of  ment, to court. His Federal Court cas- a reduced pen- the law, now two years overdue. 600 zero statement of claim tigated the depart- sion with no other Worse, the government is introducing departmental codes vs revealed that for ment for doing harm. He still faces of conduct that make it a firing offence for public servants to the past 20 years “everything in its spending much of say anything in public that displeases the people in charge. vs the department has power to kill this his retirement— Success Rate essentially ignored case”—he appar- likely years—in These codes effectively strip public servants of their Charter its legal duty to ently considered legal proceed- free speech rights and criminalize whistleblowing. screen new laws this an affront to ings to protect the Meanwhile, other countries such as the United States, the Not and regulations for Canadian democ- public interest by United Kingdom and Australia are taking steps to further vs Applicable compliance with racy—and ruled showing that the strengthen the working whistleblowing laws they’ve had in the Charter. The that because the department has place for many years, even decades. While even the strongest 27% Justice Depart- case was of such failed to comply laws will never make whistleblowing a safe or easy thing to ment immedi- importance to the with the law. do, these countries at least appear to be making a real effort. It is sad that after 20 years of promises by politicians Reforming the law: FAIR, a whistleblower protection advocacy organization, has Canada still does not offer any credible protection to hon- identified more than 40 significant shortcomings and loopholes in the whistleblowing 150 days in hearings spanning nearly five years while Health est public servants who speak out in order to protect the law (fairwhistleblower.ca/psdpa_critique). It has also outlined recommendations for reform Canada spent untold sums defending its actions against them. public interest.  (fairwhistleblower.ca/psdpa_fixes). These call for the law to: 1. Cover all parties and witnesses to If that weren’t enough, there’s another troubling twist: in government misconduct. 2. Cover all types of misconduct, including harassment and threats. 3. Ensure mandatory corrective action five out of the six cases, the PSIC has declined to ask the David Hutton is the executive director of FAIR, the preemi- and sanctions for misconduct. 4. Provide timely remedies for whistleblowers, access to the courts and adequate sanctions for reprisals. tribunal for disciplinary action against perpetrators—even nent organization defending whistleblower rights in Canada. 5. Require reporting and performance measurements that demonstrate whether the system is working as intended. PHOTO: DAVID KAWAI / POSTMEDIA KAWAI DAVID PHOTO:

14 CJFE REVIEW 2014 CJFE REVIEW 2014 15 LEGISLATION

only the independence but the freedom “gutted” his bill and had no respect for process that the government’s real inter- of expression of the corporation.” Oppo- backbench MPs. When C-461 returned est in C-461 was about reducing pro- MP’S SACRIFICE sition members of the Standing Com- to the House of Commons in November tections for the CBC’s journalistic and mittee on Access to Information, Privacy 2013, Rathgeber, by then sitting as an programming activities. And that deeply and Ethics prepared important amend- independent, introduced amendments worries Carmel Smyth, the national SAVES CBC INTEGRITY ments to the bill. that would reinstate lower salary thresh- president of the Canadian Media Guild, old and remove all aspects of the bill per- which is the largest union at the CBC. Brent Rathgeber is the first MP to kill THE GOVERNMENT AND THE CBC taining to the CBC. “I find it troubling the government his own private member’s bill The federal government seemed deaf to But, in February 2014, the Conser- would have passed this flawed legisla- these arguments. Although they added vatives defeated Rathgeber’s amend- tion knowing it would have hamstrung By CJFE some protection for confidential sources ments, although a handful of MPs did the CBC.” at the committee stage (though not as break ranks with their party. Rathgeber Bill C-461 is dead—thanks to the prin- much protection as other media enjoy), felt that he had no choice but to withdraw cipled action of Brent Rathgeber. He may N A COLD, late-Feb- mation system to request salary informa- in fact, comprehensive, not piecemeal, Conservative MPs on the committee sponsorship of his own bill. In its new have created a way for MPs to keep con- ruary evening, some- tion for employees of the federal govern- reform is urgently needed—nor against scuttled opposition amendments that form, rewritten by the government over trol over their own legislation. However, thing unprecedented, ment and its Crown corporations who more accountability in government and could have improved the bill. his objections, it would do more harm the government, on its own or through Oand important, happened in Ottawa. earn more than $188,600 yearly. at the CBC. “The need for transparency And then the government revealed than good, he said. an individual MP, can still reintroduce The House of Commons was about to When he asked the Prime Minister’s in our public institutions should not be that it was no longer interested in the dis- It has been evident throughout the the same proposals anytime.  take a final vote on a private member’s Office for support—fairly essential if a used as an excuse to weaken the public bill—sending it to the Senate and, likely, private member’s bill is to advance— broadcaster,” explained Brian Myles, the “I believe that into law. Most parliamentarians would Rathgeber says the government agreed vice-president of the FPJQ. give their front teeth to see their bill to prop up his bill if he incorporated CJFE argued that C-461 could expose CJFE’s arguments at finally get this far. But the sponsor of Bill changes to the section of the Access to the identity of the CBC’s confidential C-461, Brent Rathgeber (Edmonton-St. Information Act that protects the CBC’s sources, deter whistleblowers from Committee were vital Albert), who had spent more than two journalistic, programming and creative approaching the CBC and supply media in getting the bill’s years maneuvering it through the shoals activities (clause 68.1). competitors, individuals and corpora- of Parliament, rose from the backbenches tions with information about journalis- sponsor, and others, on a point of order. The CBC and Pub- The journey of C-461 tic and programming activities that no lic Service Disclosure and Transparency other media outlet has to disclose. Such to understand that Act no longer resembled his original bill, from birth to death information would only be protected if its the problems with the Rathgeber said. As its sponsor, he could disclosure would affect the CBC’s “inde- not ask for the concurrence of the House. is important to pendence.” That was insufficient protec- bill went beyond just The Speaker of the House, Andrew understand because tion, according to lawyer Peter Jacobsen, CBC’s concerns,” says Scheer, admitted he was faced with “an chair of CJFE’s Canadian Issues Com- unprecedented situation.” But, given his of what it reveals mittee. “The public broadcaster would Shaun Poulter, senior understanding of parliamentary process, have seen its journalistic integrity com- Scheer ruled that C-461 should be “dis- about the current promised,” he says. director of government charged” and “dropped from the order government’s attitude CBC management was also worried relations for CBC/ paper.” Bill C-461 was dead. And the toward the CBC/ about C-461, and later expressed its opposition benches gave Brent Rathge- appreciation of CJFE’s work. “I believe Radio-Canada Brent ber a standing ovation. Radio-Canada. that CJFE’s arguments at Commit- Rathgeber CJFE applauded as well. It was, we tee were vital in getting the bill’s spon- closure of civil service salaries. Conserva- withdrew said, a good day for democracy: an indi- sor, and others, to understand that the tive members of the committee voted as support for vidual politician had taken a pass on The result was a schizophrenic bill— problems with the bill went beyond just one to raise the threshold for disclosure his private member's personal prestige and, in a place known seeking salary disclosure on one hand CBC’s concerns,” says Shaun Poulter, to those earning more than $444,761 a bill, C-461. for narrow partisanship, had acted on and so-called “accountability” at the senior director of government relations year. That level would apply to only a principle. CBC on the other—and getting both for CBC/Radio-Canada very small number of Crown corporation The journey of C-461 from birth by the circuitous route of small changes These arguments did not go unheard. executives and senior bureaucrats enjoy- to death is important to understand to the Access to Information Act. The information commissioner admitted ing special bonuses. That left C-461 only because of what it reveals about the cur- The implications for journalism are the weakness of the “independence” defi- seriously addressing issues concerning rent government’s attitude toward the what concerned CJFE and others (the nition in C-461. And the bill’s sponsor, the CBC, and doing so with language CBC/Radio-Canada. Canadian Media Guild, the Fédéra- Rathgeber, then a backbench Conserva- that failed to protect the public broad- tion professionnelle des journalistes du tive MP, said he would accept improve- caster’s journalistic, creative and pro- MAKING LAWS AND SAUSAGES Québec, or FPJQ, and eight other orga- ments: “We heard cogent evidence that gramming activities. Brent Rathgeber says that his original nizations joined CJFE in our opposi- the independence test was too narrow,” It was at this point that Rathgeber interest was in crafting a bill that would tion to C-461). Critics of C-461 were he admitted, suggesting that the bill resigned from the Conservative party, allow citizens to use the access to infor- not against changing the access act— might include wording “to protect not bitterly complaining the government had PHOTO COURTESY OF THE OFFICE BRENT RATHGEBER COURTESY PHOTO

16 CJFE REVIEW 2014 CJFE REVIEW 2014 17 CROSS-CANADA REPORTS Cross-Canada of a pro-life student posts Levant made on his unit in Canada devoted Prince Edward Island government was drafting According to the school’s FREE EXPRESSION organization in October personal blog in 2009, solely to investigating made plans to develop a a policy designed, principal, the students will 2013. The motion was which described Awan cyberbullying complaints. new engineering school according to opposition start recording podcasts submitted after the club as a “liar” and “jihadist.” The first prevention in spite of recent job critics, to exert control later this year. held a pro-life display Levant’s comments REPORTS NEW BRUNSWICK order granted under the cuts, and by Redmond’s over education employees on campus that equated were targeted at Awan’s RCMP arrests Act was issued on Feb. call for an independent making public statements CJFE monitors free expression issues abortion with genocide. testimony before the journalist three times 11, 2014. Designed to audit of Charlottetown’s about education-related The Justice Centre for British Columbia Human curb cyberbullying, the snow removal service in issues. Known as Making from coast to coast. Here’s our round-up The RCMP has arrested Constitutional Freedoms Rights Tribunal in June Cyber-Safety Act has December 2013. Public Statements, the Miles Howe, a journalist of news from 2013 and early 2014. submitted a letter to the 2008; Awan was among been criticized by those draft policy was said for Media Co-op, three student union, defending a group of students who feel its protective to contain guidelines NUNAVUT Compiled by Francine Navarro times in 2013. He was first the club’s Charter- who issued a complaint measures, such as the for communicating Regulations on detained in July 2013 and protected right to free against an article printed seizure of the alleged confidential information Internet campaigning charged with uttering expression. in Maclean’s magazine, bully’s electronic devices to the public, including In the days leading up threats against a police Navarro otherwise unlikely to “The future belongs or the collection of directives to prohibit to a territorial general officer. Howe was arrested NEWFOUNDLAND support. As a result, law to Islam,” claiming the personal information education employees from election, reports surfaced again in October while AND LABRADOR makers wanted to create article was Islamophobic. from Internet service providing information alleging that Elections reporting on a violent Interim premier conditions that would An articling student at the providers and Internet to the media without Nunavut enforced undue anti-fracking protest, and creates panel to BRITISH rouse teachers into action, time Levant’s posts were companies, are excessive authorization and to restrictions on Internet SASKATCHEWAN was later released without review the COLUMBIA such as cutting pay and published, Awan asserts or unnecessary, and could refrain from criticizing campaigning. In October Failure to ONTARIO charge. Most recently, province’s access Former Vancouver cancelling leave. The NDP the false allegations be used to restrict free their employer in public. 2013, a former member of respond to access Defending the RCMP arrested Howe to information law Olympics CEO submitted an open letter Levant made against him expression online. the Nunavut Legislative to information in November 2013 while In January 2014, interim sued for defamation to Premier Christy Clark investigative threatened his credibility Assembly and current requests he was reporting on premier Tom Marshall In January 2014, journalist in February 2014, calling journalism as a prospective lawyer. Alberta resident was In January 2014, three seismic testing along a announced plans to Laura Robinson filed a for the documents to be After the Toronto Star At the time of writing, informed by Elections writers representing New Brunswick highway; form a panel of three defamation suit against released. broke multiple stories a decision had yet to be Nunavut that, because Briarpatch Magazine filed again, charges were experts tasked with former VANOC CEO detailing Toronto mayor reached. she did not live in the a statement of claim over eventually dropped. reviewing Newfoundland NORTHWEST John Furlong. She alleges Rob Ford’s substance use, territory, she was not access-to-information Media Co-op asserts PRINCE EDWARD and Labrador’s “toxic” TERRITORIES Furlong made false and the Ontario Press Council permitted to express her (ATI) requests submitted Howe is being targeted ISLAND access to information New media gives maligning statements received complaints from opinions about electoral to the community of by RCMP officers to Exemptions (ATI) laws. The review youth opportunities during a media campaign Canadians concerned candidates using social Northern Village of censor his coverage of to freedom of will focus largely on Bill to exercise freedom designed to discredit an about the ethics of the media. In another ALBERTA Pinehouse. Briarpatch had Elsipogtog First Nation information law 29. Passed in 2012, it of expression article in which Robinson Star’s investigation into instance, a candidate for Use of electronic made requests in April QUEBEC protests against shale In November 2013, made amendments to the Innovative media quoted several people Ford’s private life. The the Iqaluit-Niaqunnguu devices in Alberta 2013 to obtain information Montreal gas exploration in the provincial NDP leader province’s ATI law that projects developed in the accusing Furlong of council held a public constituency revealed for an investigative report municipality province. Mike Redmond spoke obstructed the release of Northwest Territories are physical and verbal abuse courtrooms prohibited hearing to determine that Elections Nunavut In October 2013, the about controversial upholds anti- out against “shameful” government documents, giving young students during his years as a whether the newspaper’s issued a directive for all Alberta Court of Appeal mining contracts valued exemptions given to increased fees and gave the chance to share their teacher in northern B.C. In investigative reporting protest bylaw candidates to remove issued its Policy on the at $200 million. The municipalities and post- ministers authority to stories. The territory’s November 2012, Furlong was irresponsible and In April 2013, Montreal election material from Use of Electronic Devices province’s information secondary institutions reject “frivolous” requests. first and only youth-driven filed a defamation suit unethical. Concluding that city councillors voted their websites or social in Courtrooms, which and privacy commissioner under P.E.I.’s Freedom The panel members— radio program, Feel Real against Robinson and the Star had chronicled not to amend a bylaw media pages. Neither prohibits the public from recommended that the of Information and former premier and chief Radio, hit the airwaves the Georgia Strait, which events that were a matter that restricts freedom of NOVA SCOTIA of these directives is using electronic devices justice minister and Protection of Privacy justice Clyde Wells, in November 2013. published the article. of public interest and had assembly. In addition to Legislature introduces explicitly justified by in its courtrooms; only attorney general consider Act. P.E.I. is the only former federal privacy The weekly half-hour He dropped the suit in engaged in ethical and prohibiting protesters cyberbullying law Nunavut’s Elections Act. lawyers and “accredited prosecuting the mayor Atlantic province without commissioner Jennifer program aims to stimulate October 2013. responsible reporting, from wearing masks, In April 2013, Nova Scotia media members” are for failing to adequately freedom of information Stoddart, and former CBC open discussions about the council dismissed the bylaw P-6 requires introduced the Cyber- B.C. government permitted. Anyone who respond to the requests. (FOI) legislation covering reporter and producer key social issues and complaints and reaffirmed demonstrators to safety Act to provide legal attempts to suppress fails to comply may municipal governments— Doug Letto—were showcase positive role the importance of free provide their protest recourse for victims of release of information be ejected from the an oversight that impairs announced in March. A models for Northern press and investigative route to authorities in cyberbullying. The law In February 2014, the courtroom or be held in local transparency and full review is expected youth. Similarly, in journalism in promoting advance—otherwise, allows victims to apply B.C. government sought civil contempt of court. accountability. These by January 2015, when January 2014, a group democratic and open the demonstration is for prevention orders to suppress information While this regulation may exemptions prevent the province is due for a of student bloggers at institutions. considered illegal and that restrict or identify Join CJFE as a about the political motives thorough investigations mandated election. Kaw Tay Whee School, + be designed to prevent MANITOBA demonstrators face a the alleged bullies. In Regional Monitor behind its attempt to the public from disrupting into the decisions, in Dettah, N.W.T., near Libel case against fine up to $500. In the cases where the accused to help ensure provoke a teachers’ strike. the functions of the court, Student union activities or expenses of Yellowknife, started a Sun TV personality weeks leading up to the bully is a minor, the we’re covering According to cabinet there is concern that it defeats motion to municipal governments collective Twitter account commences in Toronto vote, approximately 800 bully’s parents can be documents submitted discourages openness ban pro-life club and post-secondary (@KTW_School_YK1), the issues in your The libel case against people were fined under held responsible for his to the Supreme Court and transparency in the at the University institutions. According where they post photos area! Email cjfe@ Sun TV personality Ezra the bylaw. Decrying the or her actions under of British Columbia, the provincial judiciary and of Manitoba to the NDP, the need of their work and cjfe.org for more Levant went to trial in bylaw’s chilling effects on the new legislation. YUKON government assumed a prevents citizens from The University of for more inclusive FOI adventures at school, talk information. March 2014. Regina constitutional freedoms, Furthermore, with the Government accused strike would rally public promoting democratic Manitoba Student Union legislation is made about what they learn in lawyer Khurrum Awan protesters held a peaceful creation of the province’s of muzzling teachers support for legislation discourse about defeated a motion to apparent by reports class and connect with filed the $100,000 lawsuit sit-in at city hall as the CyberSCAN Unit, the Act In April 2013, it was that the public was courtroom proceedings. revoke the club status that the University of their favourite authors. in response to disparaging vote took place. also established the first reported that the Yukon

18 CJFE REVIEW 2014 CJFE REVIEW 2014 19 FREE EXPRESSION

FREEDOM OF THE PRESS: QUEBEC JOURNALISTS SOUND THE ALARM By Pierre Craig

AKE THAT OFF, PLEASE.” You may think these cases are exceptions. They are not. In His tone was uncompromis- December 2013, in Val-d’Or, the outgoing mayor, speaking ing. The new mayor of Saint- of a young journalist who had penned an article he disliked Lambert, on Montreal’s South and who was in the room, said: “I wouldn’t mind giving those Shore, was speaking to a jour- big-mouthed journalists a slap in the face.” Several other may- nalist who wanted to place a ors of the region who were present broke out laughing. In microphone on the munici- Saguenay, the mayor called journalists “no good” and accused pal council desk in order to tape the public session held Jan. them of playing the role of the opposition. A few years ago, 20, 2014. The same night, in the nearby city of Candiac, the the same mayor had threatened a journalist to the point that mayor had“ forbidden a Tjournalist from taking pictures of the he feared losing his job. municipal council. Earlier that same day, I could go on and on. in Quebec City, the mayor decided to pun- Intimidating journalists shows disregard ish journalists who had arrived at his office Intimidating for citizens—meaning all of us. Obstructing two minutes late for the briefing held before journalists shows journalistic work amounts to denying citizens council meetings. These journalists had been disregard for their right to know what is going on in their wrapping up their questions to the leader citizens—meaning municipalities. Can we afford to be kept in the of the opposition. The door was closed as all of us. dark about what our elected representatives are they arrived and they weren’t allowed entry. doing with our money? Let us not forget what the former mayor of Laval, who stands accused of gangsterism, said to a young candidate in the last election: “Let me tell you… The truth is that there is already another system,” he said, speaking of a corrupt system. Can we afford to keep filling the pockets of those who engage in corruption? If our answer is no, we

must—by all means—help journalists do their jobs. Because - without journalists, the Charbonneau Commission would not exist, and the Gomery Inquiry before it would never have taken place. The mission of the Quebec Professional Federation of Jour- optimistic that the grade for 2013 will be any better. I was at this conference. When I asked the minister, in nalists (Fédération professionnelle des journalistes du Québec, Alas, Quebec’s access to information law, which came into front of 500 conference goers, if he was ready for a thorough or FPJQ), with the strength of its 2,000 journalist members, place over 30 years ago, is ineffective and even detrimental to review of the law, Drainville replied that, as his was a minor- is defending freedom of the press. In Quebec, journalists are the work of journalists in its current state. ity government, he could only make minor modifications not tortured as they are in certain countries, but they are too Here’s a common example: a researcher for the Radio-Can- to the law in any timely manner. Stunning from a minority Pierre Craig, often intimidated, dissuaded or threatened. When the work of ada TV program I host, La Facture, recently asked a hospital government that was ready to take on Quebec’s war over president of the Quebec journalists is hindered, citizens are denied their democratic spokesperson how many private and semi-private rooms the religious freedoms. Professional right to be informed. hospital held. “Go file an access to information request,” the Access to information is, thus, essentially a question of politi- Federation of spokesperson replied. The same researcher recently asked a cal will. And we, at the FPJQ, will fight to create, and sustain, Journalists ACCESS TO PUBLIC INFORMATION borough spokesperson for the engineering plans of a condo this will. Without access to information, journalists are like a Journalists in Quebec are not rotting in prisons either, like too development: same response. This is absurd. tortoise in a puddle of molasses: everything happens extremely many of their colleagues abroad; but they are increasingly con- During a conference held in Quebec City, which brought slowly. Without access to information policies worthy of their fined in the labyrinths of government bureaucracy that, sadly, together those responsible for access to information policies in name, there is no democracy worthy of its name. considers public information as its private belongings. American states and big Canadian cities, the minister respon- In 2011 and 2012, Quebec received the disastrous grade sible for Quebec’s access to information law, Bernard Drain- Pierre Craig is president of the Quebec Professional Federation of “F,” the worst of all Canadian provinces, in a Newspapers ville, admitted that the law “blocks access to more information of Journalists. He is the host of the CBC/Radio-Canada TV Canada investigation into access to information. We are hardly than it permits.” program La Facture. PHOTO COURTESY OF FPJQ COURTESY PHOTO COMPETI CARTOON EDITORIAL / INTERNATIONAL CHMELA (SLOVAKIA) PETER (CCWPF) FREEDOM PRESS WORLD FOR COMMITTEE TION OF THE CANADIAN

20 CJFE REVIEW 2014 CJFE REVIEW 2014 21 COURTS FREE EXPRESSION

on its merits. Even if the court ultimately finds that the lawsuit had no validity or was brought for an improper purpose, and dismisses it, the damage will have been done. The suit chills free expression by sending a message that dissenting voices ALBERTA BANS will be dragged through a legal nightmare. Many activists who are sued will choose to simply give up their activism since the PRO-STRIKE costs of defending themselves can be so high. These lawsuits SPEECH also have the potential to put a chill on investigative report- ing and media coverage of controversial issues. In many ways, Bill 45 strikes a blow to free SLAPPs are the new frontier in terms of threats to freedom of expression with its broad expression. Brought by powerful private actors, SLAPPs use our court system to curb debate and discussion, and to skew provisions and stiff penalties the narrative on issues of broad importance. By Radostina Pavlova Although there are scenarios that might be described as classic SLAPPs—for example, a developer suing a residents’ group opposed to its development—the target of a SLAPP can O MOST CANADIANS, the liberty to speak take many different forms. Individual activists, environmental one’s mind on any topic is a fundamental groups, residents’ associations and media actors are all possible right protected by our laws. But this is not targets. The environmental NGO Greenpeace is currently facing always the case. Thanks to legislation passed a lawsuit launched by Montreal-based forestry company Reso- in December 2013, anyone speaking to an lute Forest Products Inc., which alleges defamation, malicious employee of the Alberta provincial govern- falsehood and intentional interference with economic relations, ment about public servants’ right to strike has and is seeking $7 million in damages. While Greenpeace char- Tlost the fundamental protection enjoyed by the acterizes the suit as a SLAPP, Resolute says it is taking legiti- rest of Canada. Alberta’s offence occurs or continues. Bill 45 only applies mate legal steps to protect its business and reputation against Expressing sympathy or support for an Alberta Bill 45 poses a to those public service employees who are already false and misleading statements. In the absence of anti-SLAPP public servant labour strike could cost a person serious threat forbidden to strike under Alberta’s Labour Rela- legislation in Ontario, where the suit was filed, this kind of case $500 under Alberta’s Bill 45, the Public Sector to freedom of tions Code or its Public Service Employee Rela- ANTI-SLAPP could stretch out over several years and incur huge legal fees Services Continuation Act. The provincial leg- tions Act. That includes firefighters, employees of before finally coming before the court. Regardless of the merits islature passed the controversial law in an effort expression in approved hospitals and employees of the Crown BILL STALLED of the suit, the delay in having a court deal with it has a number to discourage illegal striking by the members of Canada. It is and the agencies, boards and commissions cre- Nearly a year after being tabled, of negative consequences for all parties involved. Those who are its public service. The bill was adopted together broad in scope ated by the provincial legislature. concerned about Resolute’s practices will keep quiet, to avoid with Bill 46, the Public Service Salary Restraint and could cover The bill has been criticized by a number of Ontario’s Bill 83—which would protect facing a similar legal action. At the same time, Resolute will Act (the implementation of Bill 46 has been communication watchdog organizations, including CJFE, for public participation from improper continue to face claims that it is engaged in abusive litigation postponed because the provincial government by everyone potentially silencing the critics of the Alberta gov- until the case is heard. Bill 83 seeks to remedy this problem. employees’ union has launched a court chal- ernment’s labour relations policies. According to lawsuits—is in danger of dying If passed, Bill 83 would give defendants in a SLAPP a chance lenge). The two bills are part of the Alberta gov- from journalists Peter Jacobsen, chair of CJFE’s Canadian Issues By Cara Zwibel to bring a case before the court early on. The court would con- ernment’s response to the illegal strike of some to people on Committee, the bill’s broadly worded provisions sider whether the lawsuit arises out of expression on a matter of of Edmonton’s correctional facilities workers, the street to could capture, for example, journalists who say HE IDEA OF LEGISLATION to guard against public interest and, if it does, whether it nevertheless has sub- who walked off the job in April 2013 to protest public service public servants in the province ought to do some- SLAPPs has been floating around in Ontario for stantial merit and whether the defendant has a valid defence. unsafe working conditions. employees thing to get a fair deal in labour contracts. many years. Strategic litigation against public par- The court would also be asked to consider the relative harm Alberta’s Bill 45 poses a serious threat to discussing This is not the first time the Alberta govern- Tticipation (SLAPPs) are lawsuits that are launched against that the party suing might suffer because of the expression and freedom of expression in Canada. It is broad ment has adopted legislation encroaching on individuals or groups engaged in speaking out on a matter whether that harm outweighs the public interest in protecting in scope and could cover communication by strikes amongst freedom of expression. In 1937, Alberta’s Social of public interest. The point of a SLAPP is to deter the target the expression. This creates a procedure that seeks to balance everyone from journalists to people on the street themselves. Credit Party government passed the Accurate from participating publicly on the issue at hand by engaging in the scales and level the playing field in what is often a contest to public service employees discussing strikes News and Information Act. It required newspa- protracted litigation that will eat up time and money. between parties with vastly unequal resources. Bill 83 does not amongst themselves. The specific provisions that are cause for pers to reveal sources to the government and publish corrections It has been almost four years since the Anti-SLAPP Advi- make any significant substantive legal changes, so lawsuits with concern are in Section 4 of the bill. They prohibit employees prepared by the party. The following year, the Supreme Court sory Panel, appointed by Ontario’s then-Attorney General John genuine merit should not be deterred or dismissed. and union representatives from causing or agreeing to a strike, of Canada struck down the law on jurisdictional grounds—a Gerretsen, issued its report recommending the province adopt Despite all three parties making statements in the legislature and from any other behaviour that establishes a strike threat or common basis for declaring laws unconstitutional in the days anti-SLAPP legislation. A bill incorporating some of those rec- that are supportive of the bill, things seem to be at a standstill. a strike. The same section then stipulates that “no person shall before the adoption of the Canadian Charter of Rights and ommendations was tabled in June 2013 and, as of the date If Bill 83 doesn’t get to committee and pass before an election counsel a person” to contravene these anti-striking provisions. Freedoms. Today, Alberta’s government would have a diffi- of publication, still hasn’t moved to a committee. Bill 83, the is called (which could happen anytime with Ontario’s minor- The consequences for flouting the rules can be steep. Employ- cult time defending the constitutionality of the Public Sector Protection of Public Participation Act, would amend several ity government), it will likely die. This would be an unfortu- ees face a fine of up to a day’s wages for each day the offence Services Continuation Act, as it appears to run counter to the pieces of legislation so that those on the receiving end of a nate missed opportunity to protect freedom of expression and occurs or continues, while union representatives are liable to charter’s protection of the fundamental freedoms of thought, SLAPP could bring the issue before the court in a timely way. encourage robust and meaningful participation by the public. pay $10,000 per day. The fines are staggering for trade unions opinion and expression. The current problem for those who are named in a SLAPP and employers: a flat $250,000 fine plus a daily rate based on is that it can take many years (and tens of thousands of Cara Zwibel is the director of the Fundamental Freedoms Program the number of employees involved. Even individuals who are Radostina Pavlova is completing her law degree at the dollars) to get the case before a judge and have it dealt with of the Canadian Civil Liberties Association (ccla.org). SIGNE WILKINSON (USA/EUA) ILLUSTRATION: not in these categories face a fine of $500 for each day the University of Toronto. I;LLUSTRATION: CINDERS MCLEOD I;LLUSTRATION:

22 CJFE REVIEW 2014 CJFE REVIEW 2014 23 ACCESS TO INFORMATION

ACCESS DENIED! ACCESS TO INFORMATION PERFORMANCE, VARIOUS YEARS Ottawa’s new end run around access to YEAR 1999- 2005- 2009- 2011- 2012- information? Don’t keep records By Bob Carty 2000 2006 2010 2012 2013

TOTAL NUMBER HIS MAY BE THE YEAR when Canadians Those assertions are based on selected statistics. Clement OF REQUESTS 18,489 27,269 35,154 43,194 55,145 crossed a threshold in a key area of our free boasts, for example, that the number of access requests received RESPONSES EXCEEDING 36.8% 40.4% 43.9% 44.7% 35.2% expression rights—the right to information. by the government last year went up by 27 per cent. That’s THE 30-DAY TIME LIMIT On one hand, the health of our access to completely true. But there’s a difference between the public’s WITHOUT CITIZENSHIP 45.8% 46.4% 42.6% 44.3% information (ATI) system, weak and sickly growing demand for government information and proof of AND IMMIGRATION for many years, has now become chronically transparency. In fact, unless the performance of the ATI sys- fragile, with questionable likelihood of recovery. On the other tem is improved, more requests received only means more RESPONSES WHERE ALL 40.6% 28.4% 15.8% 21.2% 21.6% INFORMATION IS RELEASED hand, new threats to our right to information are emerging. ATI responses delayed, extended, censored and/or denied. WITHOUT CITIZENSHIP 30.3% 17.1% 18.1% 18.9% TThe stakes are high. Information—authentic information, Clement’s own department, the Treasury Board, tracks the AND IMMIGRATION and not just spin—is indispensable for a functioning democ- performance of the ATI system in its annual Infosource publica- racy. Public information, and the means of creating and pre- tion. One measure it uses is how many requesters received all Sources: Infosource (Treasury Board), “Access to Information and Privacy serving it, must be seen as vital national assets. If they are lost, of the information they asked for—or, conversely, how many Statistical Reporting,” various years; Citizenship and Immigration Canada, we will also be losing part of our history, and surely some of responses were refused or contained redactions or blackouts. “Access to Information—Annual Reports,” various years. our capacity to shape the future. In 2012-13, government departments and agencies refused This year’s assessment of the state of our right to infor- or censored almost four out of five access responses—justi- mation begins with our usual review of the performance of fied by a long list of exemptions or exclusions in the Access A PATTERN OF COMPLAINTS sioner effective enforcement powers. And now, a Federal Court the ATI system, and it continues with a look at the emerging to Information Act (ATIA). Conversely, only 21.6 per cent of Another barometer of access performance can be found in the decision may have given underperforming institutions a new threats and the new remedies that must be considered. all Access users received all of the information they requested complaints that users submit to the information commissioner excuse for thumbing their noses at the Act. (see table). In comparison, 13 years ago, twice as many (40 for her investigation. From 2011-12 to 2012-13, there was a In May 2013, the information commissioner took the Depart- per cent) of users received everything they asked for (some whopping 42 per cent increase in the number of new admin- ment of National Defence to court after the department gave “I am not the first information analysts point to 2000 as the time when access performance istrative complaints—the kind of complaints that usually con- itself 1,110 days (just over three years) to respond to an access commissioner that’s been saying the began to deteriorate significantly). cern delays and time extensions, and which in turn reflect the request. That is allowed by the Act, but the commissioner said Clement also asserts that the government has significantly basic capacity of a government institution. In her most recent it was unreasonable. A Federal Court judge ruled that while system is failing. What I’m saying improved its access response times, justifying his claim about annual report, Information Commissioner Suzanne Legault the commissioner was raising important issues that were in now is, failing dangerously. To government transparency. In 2012-13, Infosource reported noted signs of significant deterioration in the federal access the public interest, the court could not censure the Defence that government institutions completed almost 65 per cent system, such as the failure of institutions “to meet their most Department because of the way the Act is worded—one more the point where we’re not actually of access files within the statutory limit of 30 days—a major basic obligations under the Access to Information Act.” But an especially egregious case meeting our legal obligations.” bump from the 55 per cent of responses returned within the There are a number of possible reasons for declining per- time limit in the previous year. But a closer examination of formance: budget cuts have led to understaffing in some insti- was found at the Royal Canadian Suzanne Legault, information commissioner the data reveals a distortion that has crept into recent sta- tutions; in others there seems to be a simple unwillingness to of Canada, in an October 2013 interview tistics due to the very high number of requests made to one release information. Parks Canada officials took no action for Mounted Police. The number of with the CBC’s Evan Solomon department. Citizenship and Immigration Canada (CIC) 11 months on a request related to an announcement that Sable received 45.3 per cent of all ATI requests in the federal access Island, off the coast of Nova Scotia, would become a national complaints about how the RCMP system in 2012-13. And because ATI inquiries made to CIC, park. Transport Canada took roughly a year to release records managed access requests tripled ACCESS TO INFORMATION compared with other departments, are generally less com- because of staff shortages. Health Canada cited lack of resources The federal government continued to insist this past year, as in plicated—the great majority ask for personal immigration for its poor performance. between 2011 and 2013. previous ones, that it is one of the most open governments in files—CIC is able to complete 75 per cent of these files in But an especially egregious case was found at the Royal Cana- Canadian history. Tony Clement, the president of the Treasury 30 days or less, while it accounted for only 6.8 per cent of dian Mounted Police. The number of complaints about how reason why the it must be reformed. Board and the minister responsible for the access system, told all complaints to the information commissioner. the RCMP managed access requests tripled between 2011 and The commissioner is appealing the decision, but it could take reporters in October 2013 that he is “very proud of our record. Citizenship and Immigration, in other words, makes a large 2013. In that period the institution understaffed its ATI office more than a year. In such a lengthy time span, other depart- We have an open and transparent record second to none.” Such footprint in the ATI data although it carries a light load. If the so badly, it could not even acknowledge the receipt of requests ments and agencies could use the judgment as justification for declarations, however, are beginning to wear thin. government’s performance is looked at with CIC files removed, within the 30 days it should take to answer them. That made it long extensions—up to three years—because the courts will A public opinion poll conducted in early 2014 by the Nanos the performance calculations change quite dramatically in one impossible for the information commissioner to even begin an not likely challenge them. Research Group on behalf of CJFE asked Canadians if they category: judged by timeliness of response, non-CIC requests investigation into a complaint, because there was no file num- agree or disagree with the claim that the government has given exceeded the time limit 44.3 per cent of the time—a figure ber to identify the request. (This is why we gave the RCMP an MISSING RECORDS citizens more access to its information. A majority (53.2 per comparable to previous years (see table). “Incomplete” grade on our Report Card, on page 4.) There was also a worrisome new trend in 2012-13: 428 com- cent) disagreed. It would seem many Canadians have serious Overall, the access system remains in crisis—there has not Government bodies can get away with such poor access per- plaints concerning “missing records” were filed, an increase of doubts about Clement’s assertions. been any significant improvement. formance because the access Act does not give the commis- 51 per cent from the previous year. This high volume of com-

24 CJFE REVIEW 2014 CJFE REVIEW 2014 25 plaints about missing records has continued into 2013-14, with phones. The Correctional Service of Canada destroyed records and senators, along with the cabinet, are excluded from the AN AGENDA FOR 2015 a projected increase of another 10 per cent. that were only two years old and that were the subject of the reach of the access law. Secondly, it became clear that Wright The coming year will see Canada’s political parties revving This appears to be one of the reasons the commissioner information commissioner’s investigation into an ATI com- on occasion used a Gmail account instead of a government up for the 2015 federal elections. Promises will be made, prepared a special report to Parliament, released in November plaint. In another case, Transport Canada said that “no records one, and the information in those Gmail messages could not platforms will be pitched. CJFE believes that it is essential 2013, concerning the risk to the access system from instant were found” in response to an access user’s request for docu- be obtained through access to information. And thirdly, as and urgent that our national political parties adopt and cam- messaging technology. ments concerning the transport minister’s meeting with repre- the scandal unfolded, the Privy Council Office reported that paign on a platform for comprehensive reform of the ATIA. The federal government has issued approximately 98,000 sentatives of Canada’s largest railway, Canadian National, less emails from former PMO lawyer Benjamin Perrin—who alleg- The Act is more than 30 years old—and showing its age. In BlackBerrys, the primary wireless device used throughout its than a week after one of the worst rail accidents in Canadian edly knew about the deal with Duffy—had been deleted, and a study of 89 countries with right to information laws, the departments and institutions. Unlike emails, which are usu- history. It is hard to believe, but the department appears to be that this was standard practice for departing employees. That Centre for Law and Democracy ranked Canada’s ATIA at ally stored on central servers, instant messages (texts) sent on saying it created no records about such an important meeting. is a clear violation of government regulations. (Later the Privy number 56—a drop of one position from the previous year.* BlackBerrys can be transmitted in PIN-to-PIN mode, or from Legault also found evidence of an emerging problem that Council Office reported that Perrin’s email account had not device to device, with no central record storage. Messages stored could cause information to go missing. There are no clear proce- been erased, but merely frozen due to unrelated litigation.) “Without record keeping and on the devices themselves are usually erased after 30 days. So, dures, Legault pointed out, to secure information when depart- Meanwhile, the CBC had filed more than two dozen requests with so many BlackBerry devices in use by government employ- ments or agencies cease to exist or are amalgamated into other for information about the scandal to the Privy Council Office accountability, you have a very ees, there could easily be millions of messages—concerning organizations (examples include the demise of the International and the Justice Department. Both the Privy Council Office deliberations and decisions about policies and programming Centre for Human Rights and Democratic Development, the and Justice Department responded that their search yielded ill-informed democratic process— of government—that are erased every month. “zero” pages because the information “does not exist.” CBC what are people voting on if they It is possible to store these PIN-to-PIN messages. But in Unlike emails, which are reporter Greg Weston found it hard to believe that there was the commissioner’s investigation, only two out of 11 institutions no information trail concerning the government’s worst politi- don’t know the authentic record, studied actually save BlackBerry messages. As a result, Legault usually stored on central servers, cal crisis since taking power. not just the spin?” concluded: “There is a real risk that information that should be instant messages (texts) sent on accessible by requesters is being irremediably deleted or lost.” MISSING HISTORY And that infringes on the right of citizens “to know what their BlackBerrys can be transmitted Weston says that not generating records is as much a threat to Elsewhere, CJFE has outlined detailed recommendations government is doing and to hold it accountable for its decisions.” government transparency as shredding them. “There is much for ATIA reform (see “A Hollow Right” at cjfe.org/a-hollow- Noting that the government currently uses an “honour system,” in PIN-to-PIN mode, or from evidence that the bureaucracy and political staff are increas- right), but in concluding our analysis of the right to informa- with individual officials deciding what is preserved and what is device to device, with no ingly conducting their business verbally without retaining tion in this year’s Review, we believe two key measures have purged, the commissioner suggested that federal institutions dis- notes, often exchanging correspondence through private email pressing importance: able instant messaging on government-issued wireless devices. central record storage. addresses and digital systems that are largely untraceable.” ■ Duty to document: The evidence that more and more Treasury Board president Tony Clement called that recom- Ian Wilson agrees. Wilson is the former chief librarian and records are reported missing suggests that it is urgent that mendation “nonsensical.” Public servants use the technology, abolishment of the Hazardous Materials Information Review archivist of Canada, with more than three decades of expe- Parliament pass new legislation to firmly establish the duty Clement insisted, for things like “a quick message that their Commission, and the amalgamation of CIDA with Foreign rience in the creation, storage and retrieval of government to document, stressing the obligation of public servants to child has come home safely from school,” suggesting there is Affairs and International Trade). information. He insists that “one of the defining functions of create records and setting and enforcing penalties for failing no need to capture such messages. But given that Legault’s And then the recent “Senate scandal”—involving a secret a public service is the creation and maintenance of records.” to do so or for destroying information. New amendments study had shown how BlackBerry messages are widely used for $90,000 deal between the prime minister’s then-chief of staff This “duty to document,” Wilson asserts, is undermined by to the Access to Information Act should include strong government business, not just private missives, she told CJFE Nigel Wright and Senator Mike Duffy—was the source of sev- the growth, throughout the public service, of an oral culture. sanctions for non-compliance (current penalties for that she found Clement’s response “extremely disappointing.” eral revelations concerning missing records and the right to “I have seen it,” Wilson says. “Interactions between senior destroying or altering documents have had no deterrent The missing-records problem does not end with smart- information. Firstly, it drew attention to the fact that MPs officials and the political level is now, from what I can deter- effect). The duty to document could also be added to the mine, largely an oral culture.” Values and Ethics Code for the Public Service. It is difficult, however, to show proof of an oral culture ■ Expanding the scope of the Act: In the wake of the Senate or evidence of transgressions against the duty to document, scandal, it is all the more apparent that the House of Commissioner ■ Access users appear database of summaries and response times are because the intent is to leave no trail or evidence behind. ON THE resolves complaints to appreciate the of all ATI responses irregular—sometimes Commons, the Senate and the cabinet should be made But Canadians clearly want to reverse the growth of an oral PLUS SIDE efficiently—despite government’s initiative to government-wide. The fast, sometimes slow. subject to the Access to Information Act so that the While many budget limitations— allow access requests to database let users obtain Canadian Press reporter culture and to encourage the duty to document. In the Nanos cleansing effect of sunlight might reduce corruption and and continues to issue be made, and responses copies of responses Dean Beeby, a veteran Research Group–CJFE poll, a strong majority of Canadians deceit in those corridors. criticisms can principled and forceful returned, online. already released to other access user, says it’s said they want federal employees to be required to create per- warnings about right Launched in April 2013, users without having important to not forget manent records of deliberation and decision-making, and they be made of the to information issues. the online tool processed to make a new request. the heart of the problem, Bob Carty is a radio documentary producer and has worked with access system, In the coming months, almost 21,000 requests in The government has namely “the rampant also want to see those bureaucrats disciplined if they destroy CJFE since 1992. there are a the commissioner is the first 10 months. re-established a central delays in responses to those records or emails. (See “Do Canadians care about free expected to release the ■ On another digital access portal with the requests and the excessive expression?” on page 8.) *More evidence of the weakness of the Access Act and the few positive results of two important front, the federal Completed Access to use of exemptions once Ian Wilson says that the stakes will be very high should public studies: one concerning government was severely Information Requests requests are processed. information commissioner’s powers appeared in a mid-April developments servants continue to rely on an oral culture without a retriev- the alleged “muzzling” of criticized for its 2008 (data.gc.ca/eng/search/ The new tools, in 2014 report from Legault’s office. She has found evidence of to celebrate. government scientists, decision to kill CAIRS ati). Users appreciate some ways, merely able record: “Without record keeping and accountability, you ■ “systemic interference” in the access process by three Conservative Some departments and the other proposing (the Coordination of this initiative, although streamline the process of have a very ill-informed democratic process—what are people and agencies are staff members. The commissioner recommended that such a reforms that should be Access to Information some say its search delivering blank pages to voting on if they don’t know the authentic record, not just the performing well. The made to the Access Act. Requests System), a parameters are limited requesters.” serious incident be turned over to the police, but the Public Works Office of the Information spin? This is a crisis for democratic society.”

26 CJFE REVIEW 2014 CJFE REVIEW 2014 27 MEDIA OWNERSHIP

ference was elusive: by all accounts, the tisoning the free Brunswick News web- of ownership. “You don’t need to read heir of the great monopolist himself— Irvings left their publishers alone. site—updated once a day—in favour of the Telegraph-Journal,” Jim Irving says. means for democratic debate in New MONOPOLY:  The publishers they hired, however, a dynamic site residing behind a hard “There’s so many other sources. … It’s Brunswick remains to be seen. were hardly muckrakers—particularly paywall. In one sense, it was hardly a a low barrier to entry now. If somebody when it came to the Irvings. “What we surprise: the Irvings didn’t become bil- wants to start a virtual newspaper today, Jacques Poitras (@PoitrasBook) is a NEWSPAPER need is more industry,” Tom Crowther, lionaires by giving away their products. I guess you could do it.” CBC journalist and the author of Irving the publisher of Fredericton’s Daily True, they were once alleged to tolerate a When a newspaper proprietor himself vs. Irving: Canada’s Feuding Billion- Gleaner, said in a 1982 National Film money-losing Telegraph to deter competi- admits people can do without his prod- aires and the Stories They Won’t Tell EDITION Board documentary. “So if you ask, ‘Do tion, but now they insisted on profitabil- uct, you know the landscape is shifting. (Penguin Canada, fall 2014), on which we go out and attack industries?’ frankly, ity—and their monopoly meant online What this acknowledgment—from the this article is based. no.” This attitude, though, was easily readers had nowhere else to go. New Brunswick’s shifting explained by the same factors that afflict Except the monopoly wasn’t what it By Jacques Poitras many small-market newspapers: chronic had been. Frugal news junkies could media landscape staff turnover, a lack of capacity for enter- turn to the CBC’s New Brunswick prise reporting and a tendency to engage website. Bloggers, activists and citizen in hometown cheerleading. N DEC. 5, 2011, trol of all of the province’s English daily Eventually the Irvings overcame “You don’t need to the Irving newspa- papers—given his vast industrial hold- their fear that perception might prompt per monopoly van- ings in forestry, shipbuilding and oil regulation. In 1998 they grouped the read the Telegraph- ished from the New refining—“about as flagrant an example dailies back under a single company, Journal,” Jim Irving Brunswick zeitgeist. of abusing the public interest as you’re Brunswick News; it would soon gobble says. “There’s so many Well, not quite. But likely to find in Canada.” It was alleged up most of the province’s weekly news- other sources. … It’s that was the day Brunswick News, the that K.C. owned the papers, sometimes papers. Company officials insisted the a low barrier to entry O media company owned by the family of at a loss, to scare off those who might goal was not to control the news but billionaire industrialists, launched its launch competing papers and then scru- to acquire a province-wide vehicle for now. If somebody new paywalled website. advertising flyers. “The newspapers are wants to start a virtual After a brief transition, all the Irving It was alleged nice,” vice-president Victor Mlodecki newspaper today, I papers—three English dailies, six Eng- that K.C. Irving told a Senate committee in 2005, “but lish weeklies and six French weeklies— it is the distribution systems that are guess you could do it.” would be accessible online only to sub- owned the papers, important to me.” scribers. No metered quota of free stories sometimes at a loss, The newfound Irving comfort with journalists, some critical of the Irvings, each month, like The NewYork Times. No to scare off those their monopoly became more apparent were posting their own coverage of cur- complimentary search-engine hits. No who might launch in 2005, when Jamie Irving, the great- rent events. “Technology is going to do workarounds via Facebook or Twitter. grandson of K.C. Irving, was named what Senate committees couldn’t do,” “They’ve disappeared from the Inter- competing papers publisher of the Saint John-based flag- says David Shipley, a former Telegraph net, which seems like a strange business and scrutinize his ship Telegraph-Journal. Early in his reporter turned digital-content expert model,” says Philip Lee, a former Irving other enterprises. tenure, the Telegraph published tough, at the University of New Brunswick. editor and now director of the journal- critical reporting on a 25-year tax con- “It’s going to end that information ism program at St. Thomas University tinize his other enterprises. But a prose- cession given by the City of Saint John dominance.” in Fredericton. “If you’re not on Google, cution under the Combines Investigation to Irving Oil, run by Jamie’s cousins. Not everyone agrees. Sociologist Erin you’re not really in the game.” Act—designed to protect the public from But when the stories moved closer to Steuter, one of the Irvings’ fiercest critics, If it were true that the family owned monopolies—failed when the Supreme home—with the focus on Jamie’s father, says independent media in New Bruns- the newspapers to manipulate public Court of Canada ruled in 1976 that the Jim, lobbying the province to cut power wick are still at the “awkward teenager” opinion—as critics have long alleged— mere existence of a monopoly was insuf- rates for his pulp mills—the Telegraph stage, not yet skilled enough to provide a the paywall was a particularly odd move. ficient to convict: the Crown had failed was baldly supportive. The paper saw credible alternative at a time when Irving The one-time bête noire of media owner- to prove actual detriment. its role as a champion of business interests loom as large as ever over the ship in Canada was marching into the Despite their victory, the Irvings were growth, which happened to align with provincial economy. (Irving Oil’s refinery online era in its own way. shaken by Davey, by the prosecution and the corporate interests of its owner. Jim is the intended terminus for the proposed then by the Kent Commission, another Irving didn’t like surprises, nor ruffled Energy East pipeline from Alberta.) “I investigation of media ownership in 1980. feathers: he had told one editor that he would like to see professional journal- Long before Canadian media watch- “We’re terrified of government interfer- wanted the Telegraph “spicy, but not ism—standard techniques and abilities— ers fretted about Bell and Black, New ence,” K.C.’s son Arthur told the com- hot,” and he warned another, “I don’t in the indie media,” Steuter says. “We Brunswickers were well acquainted with mission. By then, K.C. had divided the want any mavericks here. I don’t want need that.” the notion of concentration of ownership. newspapers among his three sons, cre- a cowboy.” Still, there is clearly an evolution In 1970, a committee of senators chaired ating the appearance of autonomy. And On the business side, however, under way in a province once consid- by Keith Davey called K.C. Irving’s con- “smoking gun” evidence of family inter- Jim and Jamie made a bold move, jet- ered a textbook case of concentration ILLUSTRATION: CINDERS MCLEOD CINDERS MCLEOD ILLUSTRATION:

28 CJFE REVIEW 2014 CJFE REVIEW 2014 29 SURVEILLANCE

a surveillance state. There is not a sin- Defending CSEC, Stephen Rigby, able writing think pieces about our gle journalist working for a Canadian Prime Minister Stephen Harper’s national psyche, contrasting Canadian news outlet who is assigned full-time national security adviser, dismissed apathy with American worship of per- to domestic security issues. Meanwhile, metadata as simply “data about data,” sonal liberty. We are less adept at apply- our broadcast media, jumping on the while Defense Minister Rob Nichol- ing unyielding pressure on power by pur- surveillance scandal from time to time son assured Parliament that no Cana- posefully stoking public outrage. and without a deep understanding of its dians have been “tracked” by CSEC in The media must make the case that unchecked, secret mass surveillance is Our broadcast media has provided wholly incompatible with freedom in general and free expression in particu- lar. The press cannot be considered truly an open forum for ex-spooks calling independent or free, cannot truly hold power to account, with the spectre of the themselves security experts, who bully all-seeing eye of the state hovering above it. For those who feel they have nothing terrorism-fearing Canadians with to hide, the difference between secrecy and privacy, to paraphrase author Cory “nothing to hide” into acceptance. Doctorow, always proves useful: When I use the bathroom, I don’t do anything I context and complexities, has provided airports. But some of the data that the consider a secret, but that doesn’t mean an open forum for ex-spooks calling metadata is about is location data, which I’m okay with you watching me in that themselves security experts, who bully of course can easily be used to track indi- private moment. If people don’t under- terrorism-fearing Canadians with “noth- viduals. When all else fails, both Rigby stand this, we need to explain it. ing to hide” into acceptance. Intelligence and the head of CSEC, John Forster, To be clear: I’m not talking about agency talking points that say spying is have pointed to the independent com- “starting a public conversation” or other no big deal are echoed in editorials from missioner who is tasked with assuring such weak tea. I’m saying it’s our duty some of our top pundits. These are par- ticularly egregious examples, but more The press cannot be considered typically, Canadian reporting on CSIS and CSEC is bloodless and technical, drowning the reader in an alphabet soup truly independent or free, cannot of confusing acronyms and dull jargon. This serves the agenda of our watch- truly hold power to account, with the ers. CSEC has evaded accountability WE SHOULD BE ENRAGED through semantic games, misleading spectre of the all-seeing eye of the Why don’t Canadians care about surveillance? sophistry and outright lies. Its default response to any question is to cite the By Jesse Brown state hovering above it law that forbids it from targeting Cana- dians, knowing that it has welcomed its CSEC’s legality. But both Rigby and as journalists to intentionally stoke out- American counterparts to do so in its Forster neglect to mention that in his last rage, to insist that our readers and viewers place, and knowing that it often spies report to Parliament, outgoing CSEC and listeners give a damn and demand HEN AMERICANS tions Security Establishment Canada the courts in order to obtain surveil- on Canadians “incidentally” when its commissioner Robert Décary explicitly answers from the people who are spying found out that their (CSEC), has been: lance warrants. supposed targets are foreigners. It also withheld this very assurance, writing on them. In this, at least, the press can government had ■ collecting, in bulk, detailed informa- The public reaction to such revela- interprets “collecting metadata” as a that while there was reason to believe be shamelessly partisan. We are explicitly been spying on them—all of them, all tion about our phone calls that identifies tions, we are told by The Globe and Mail’s free pass for indiscriminate bulk sur- CSEC’s actions may have been ille- pro-information and pro-answers, just as Wof the time—they got understandably where we are and whom we speak to Elizabeth Renzetti, has been rolling over veillance: if it’s spying on large groups gally directed at Canadians, he couldn’t CSEC is explicitly pro-secrecy. Our mis- upset. An uproar over the NSA’s bulk- ■ spying on us indiscriminately through and going to sleep. Security news like of Canadians, then clearly no one reach a definitive conclusion, because sion is clear: if the public is asleep, it is our surveillance programs raged, and rages Wi-Fi at an unnamed Canadian airport this“is greeted with yawns in Canada, Canadian has been “targeted,” right? key CSEC records (provided by CSEC) job to wake them. If Canadians are ask- still, despite reforms promised by Barack and throughout an unnamed city she writes, while in the rest of the world We can’t know for sure, because CSEC were “unclear or incomplete.” ing “Why should we care?” then it is our Obama. Yet when we found out that spy- ■ allowing the NSA to spy on Canadi- it merits front-page headlines. I don’t won’t say just how it defines “targeting.” Of course, we still don’t know the full job as journalists to provide answers.  ing is occurring here in Canada, public ans, on our own soil, during the 2010 argue her point. But let’s remember who CSEC claims that it’s authorized to col- extent of CSEC’s domestic surveillance response was apathetic—and the media G8 and G20 summits writes our headlines. lect metadata because the collection of activities. But our media’s response to Jesse Brown is a media critic at canada- may have something to do with it. ■ spying on our trade partners in Brazil The Canadian public cannot be metadata is not explicitly prohibited in the not knowing has been to say as little as landshow.com. He created and hosted two We now know that our own elec- ■ along with CSIS and the Justice blamed for how its press underreports National Defense Act, which was writ- possible, to hedge bets and to under- CBC Radio programs: The Contrarians tronic surveillance unit, Communica- Department, deliberately misleading and downplays the news that they live in ten before the term “metadata” existed. serve this story. We are quite comfort- and Search Engine. ILLUSTRATION: RODRIGO DE MATOS MACAO / INTERNATIONAL EDITORIAL CARTOON COMPETITION OF THE CANADIAN COMMITTEE FOR WORLD PRESS FREEDOM ((CCWPF) FREEDOM PRESS WORLD FOR COMMITTEE OF THE CANADIAN COMPETITION CARTOON EDITORIAL / INTERNATIONAL MACAO RODRIGO DE MATOS ILLUSTRATION: 30 CJFE REVIEW 2014 CJFE REVIEW 2014 31 FREE EXPRESSION

WE’RE WATCHING YOU used—against them. Nor should citi- But we cannot let the government play a personal information is no better than Cyberbullying legislation threatens free expression zens living in a democracy be so freely similar card to the one it produced back sharing intimate images without per- surveilled on the suspicion they might in 2012, when Vic Toews, then public mission.  By Paula Todd be doing the wrong thing in the wrong safety minister, tried to shame Cana- place, especially since the Internet is dians into green-lighting the sweeping Paula Todd is a journalism and digital LAINA* is a 14-year-old stockpiling and sharing your personal tinely posted on a vast number of web- such a vast space. The Charter of Rights surveillance bill, C-30, by telling us we media professor and a lawyer. She sits Toronto student who information becomes the norm. sites, including those that forbid sexual and Freedoms guarantees Canadians were all siding with “child pornogra- on the CJFE Board and chairs its Digi- thought her life was over Equally unsettling, the proposed law content. If you see them, share them or the freedom to express themselves, to phers” if we didn’t give the government tal Issues Committee. Her latest book, after her “enemy,” Lisa*, would make it legal for anyone—child, “like” them, without knowing whether associate with whom they want, among more power over us. Extreme Mean: Trolls, Bullies and Pred- also 14, snapped pictures youth or adult, including “enemies” and consent was involved, are you liable to other protections. Yet, giving the state Yet again, we're being asked to stand ators Online (Penguin/Random House) of her naked body in the gym change cyberbullies, or cyberabusers—to pro- be monitored by authorities? more power to sneak and peek without with the government against cyberabus- looks at the causes of cyberabuse. Eroom and sent the photos to guys in their vide your personal data to the govern- ■ Anyone who is ordered to collect and supervision, and enlisting others to help ers by granting it carte blanche to our class. “I was so embarrassed I couldn’t ment without you knowing about it or preserve data but refuses to could face a without consequence, makes using the personal information. Requiring law About the cartoons: Cinders McLeod is a bear to go to school,” Elaina says in a being able to protest. How? maximum fine of $250,000 or imprison- Internet to communicate or associate enforcement—and anyone collecting writer, a political cartoonist and an illus- telephone conversation. “I’ve always Under Bill C-13, briefly known as ment for up to six months, or both. far less appealing. and sharing our personal data—to act trator. Visit cindersmcleod.com for info been shy, and now everyone is calling the “Protecting Canadians from Online ■ The federal government also wants There is no question that cyberabuse under judicial scrutiny is the best way about her art, blog and children’s books, me a slut.” Crime Act,” but formally and more the power to see all of your “transmission has the potential to do long-lasting psy- to filter goose-chases from strong police I’m a Girl! and I’m a Boy! (HarperCol- Sadly, Elaina’s case is not rare. Elec- transparently titled “An Act to amend the data” (metadata), such as the origin, des- chological and physical damage (such as work. Unchecked trafficking in citizens’ lins). She is working on a novel. tronic devices give us the unprecedented Criminal Code, the Canadian Evidence tination, date, time, duration, type and self-harm and playing a part in suicide). power to communicate and educate— Act, the Competition Act and the Mutual quantity of your phone calls and online But at the heart of the protest against Bill along with the ability to humiliate and Legal Assistance in Criminal Matters communications, as well as “tracking C-13 is something just as important as harm each other, not to mention harass, Act,” the government proposes to: data,” which pinpoints the location of a ending cyberabuse: protecting every citi- sexually extort and blackmail, as has been ■ Make it legally impossible for you person or object. This “information about zen’s right to live in a democracy rather alleged in the cases of Amanda Todd and to take criminal or civil action against information” doesn’t include content, so than a police state. And asking our gov- Rehtaeh Parsons. But, in riding to the any “person,” including an Internet ser- authorities are at risk of reaching false, ernments to do both simultaneously is rescue, Canada’s federal government is vice provider (ISP) or a telecom com- misleading and damaging—not to men- hardly unrealistic. once again camouflaging a power grab pany, who voluntarily preserves and tion convenient—conclusions about The Criminal Code, for instance, can beneath a needed social protection. turns over personal information to law whom you know and associate with, for be used to counter crimes that take place Bill C-13 would make it a crime to enforcement. In other words, all that how long and where you go. This height- online, with laws against creation and use intimate images without consent of you write, speak, text, video-record and ens concern, too, about social media distribution of child pornography, child the person pictured: 162.1 (1) Everyone abuse, harassment, stalking and threat- who knowingly publishes, distributes, trans- Electronic devices give us the unprec- ening, to name but a few. Police and mits, sells, makes available or advertises an some lawyers say those laws don’t always intimate image of a person knowing that edented power to communicate and edu- translate well online, but that’s hardly the person depicted in the image did not cate—along with the ability to humiliate grounds for throwing citizen protections give their consent to that conduct, or being out the window. The ban on non-consen- reckless as to whether or not that person and harm each other. But, in riding to the sual sharing of intimate images may be gave their consent to that conduct, is guilty rescue, Canada’s federal government is laudable, but the potential for its misuse (a) of an indictable offence and liable to screams out for judicial oversight. Citi- imprisonment for a term of not more than once again camouflaging a power grab zens need not allow the federal govern- five years; or (b) of an offence punishable beneath a needed social protection. ment to do through the back door what on summary conviction. it cannot do through the front—an old In addition, though, Bill C-13 would more online can be stockpiled, perused sites that routinely record your “check- legal trick historically frowned upon. Nor permit anyone to voluntarily give mas- and held against you without any judge in” information, along with the location should citizens have to look over their sive amounts of personal material to first deciding whether that’s fair. tracking used by popular mobile apps. shoulder as they go about their lawful police and government without risk- ■ Even when police do ask a judge for Under Bill C-13, authorities could see business. We are entitled to express our- ing any civil or criminal punishment. a “demand or preservation” order requir- data about your past movements without selves and associate with whomever we This means that Internet service pro- ing someone to stockpile and give them a warrant, but they would need one for please, until a lawfully justified investi- viders (ISPs), telecommunications com- your material, they only have to show ongoing “live” tracking and for remotely gation decides otherwise. panies, and website and social media that they have “reasonable grounds to turning on your cellphone's GPS. Criticizing Bill C-13 is in no way a operators—who have access to every- suspect”—not the tougher standard of Chilling? Absolutely. Even law-abid- measure of how much (or how little) we thing you’ve said, searched or done “reasonable grounds to believe”—“that ing citizens who think they have nothing care about what happens to children, online—are free to collect, store and an offense has been or will be com- to hide cannot predict what will happen youth and adults online or through hand over your personal data without mitted.” That’s a low hurdle to jump, in the future, who will govern and what other forms of electronic communica- risk. In other words, spying, recording, especially since sexual images are rou- personal data might be used—or mis- tion. We all care, some of us very deeply. ILLUSTRATION: CINDERS MCLEOD CINDERS MCLEOD ILLUSTRATION:

32 CJFE REVIEW 2014 *NAMES HAVE BEEN CHANGED CJFE REVIEW 2014 33 FREE EXPRESSION

PROTECTING organizers, whistleblowers, journalists also home to amazing academic work TPP’s Internet censorship plan. tion—but we showed it is possible to working with confidential sources—all in privacy and surveillance, includ- We also recently launched a nation- win when Canadians work together. the people we rely on to help us fight ing Michael Geist and the University wide consultation on how to build a Now we’re determined to do likewise YOUR RIGHTS and expose injustice are undercut and of Ottawa’s Canadian Internet Policy more Connected Canada, to ensure with Justice Minister Peter MacKay’s threatened by this surveillance. and Public Interest Clinic, scholars affordable alternatives to the giant new online spying bill, C-13. We know Four Canadian defenders of free working with The New Transparency telecom conglomerates. Canadians the government is already spying on us expression discuss their work—and Can you tell us about Project and the University of Toronto’s pay some of the highest prices in the through CSEC, and they’re trying to BCCLA’s lawsuit against terrific Citizen Lab. Canadian privacy industrialized world, and that needs to cover their tracks by granting immunity explain how you can get involved CSEC? CSEC is Canada’s “signals commissioners have also been criti- change. Having so much power in the to telecom providers who hand them intelligence” agency. CSEC works cal players in this work. People and hands of Big Telecom stifles the ability our private information without a war- Produced by Laura Tribe with the NSA, about which we have organizations in almost every country of independent and alternative voices rant. Canadians care about their pri- learned so much thanks to Edward in the world are contributing to this to freely express themselves. vacy, and opposition to MacKay’s bill Snowden. CSEC is supposed to focus work, which is emerging as one of the is spreading fast. part of “the Battle for the Free Inter- its surveillance on “foreign” intelli- most pressing human rights issues of What’s the biggest threat HE REVIEW net”—which is huge and complex, gence gathering, but it has vast pow- the 21st century. to free expression in Can- OpenMedia was work- highlights a num- and includes our opposition to the ers to spy on the communications of ada? I’m most worried about the ing to protect Canadians’ ber of ways that expansion of police and intelligence Canadians. It gets its specific authority chilling effect that blanket govern- digital privacy long before free expression is agencies’ powers to gather digital com- to do its spying from the Minister of ment surveillance can have on people the Snowden revelations. under threat in munications data without appropri- National Defence, and the minister’s expressing themselves. I firmly believe Have you noticed a change Canada. But it’s ate oversight and standards. We have authorizations are secret. Only one surveillance of law-abiding residents in Canadians’ perception not hopeless—some amazing people also launched a historic lawsuit against commissioner reviews CSEC’s activi- equals censorship. People’s behaviours of surveillance and pri- Tacross the country are working to pro- Communications Security Establish- ties to see if it’s operating lawfully— change when they know they’re being vacy in the past year? Abso- tect your rights. The Canadians fea- ment Canada (CSEC) (Canada’s sometimes years after the fact. Essen- watched. We need to avoid a situation lutely. We’ve seen a steady stream of tured here are part of the movement version of the NSA) for spying on tially, what you have is a system for where journalists and citizens self- revelations over recent months, and to defend online privacy, ensure equal Canadians. And, of course, traditional, mass surveillance conducted in almost censor because they’re worried about more and more Canadians are taking access to information, protect your non-digital protest and demonstra- total secrecy. No judge, no warrants, who’s keeping track of them. notice. We see this with the num- legal right to information and more. tion requires constant defending. not even a parliamentary committee We also know that giant media con- bers joining our Privacy campaign, Our recent work includes launch- keeping track. We say this is a violation glomerates, particularly in the U.S., for example—now more than 32,000. ing complaints against CSIS and the of Canadians’ constitutional rights to are trying to force Canada into adopt- Most people had no idea that mass RCMP for spying on opponents of the privacy and free expression. ing extreme copyright rules that would government surveillance of law-abid- Enbridge Northern Gateway Pipeline severely restrict people’s ability to ing citizens is taking place—and when project. It’s a message that has to be What is essential reading express themselves online. The Inter- people find out, they’re taking action endlessly reiterated: volunteers gath- for understanding the link net is all about open sharing, collabo- to help put a stop to it. It’s becoming ered in church basements to hand- between surveillance and ration and new forms of expression. clearer just how out of control gov- paint protest signs equals democracy, free expression? STEVE ANDERSON Ironically, copyright was first invented ernment spying is, and for many the not a national security threat. The Guardian is your go-to newspa- Founder and Executive Director, as a way to encourage innovation implications on our basic freedoms are per for all things Snowden. Bruce OpenMedia and expression; yet now old indus- coming into focus for the first time. What is the biggest threat Schneier’s blog (Schneier on Security, try interests are using it as a battering to free expression in Can- schneier.com) will help explain all the What are you working on? ram to stifle creativity online and prop Can you recommend any ada? The vast chill on free expres- geeky parts and answer questions you Our Protect Our Privacy Coalition up outdated business models. We’re reading on these issues? sion created by pernicious and ubiq- didn’t even know to ask. Also Susan involves more than 50 major organiza- fighting back with a crowdsourced OpenMedia produced an infographic uitous spying. It is rapidly becoming Landau’s Surveillance or Security?: The tions from across the political spec- vision for sharing and collaboration in on how Canadian government spy- apparent that advocating for human Risks Posed by New Wiretapping Technol- trum. We formed the coalition follow- the 21st century at OpenMedia.org/ ing could affect you. You can find it at rights or environmental causes is ogies. And, if you’d like to hear the long ing stunning revelations about how crowdsource. openmedia.ca/csecandyou. Ron Deib- going to get you spied on. Being version of what eroding privacy means CSEC is conducting blanket surveil- ert’s book Black Code: Inside the Battle spied on is intimidating. Granted, it for democracy, I spoke about that at lance against law-abiding Canadians— What has been OpenMe- for Cyberspace really lifts the lid on how hasn’t stopped Cindy Blackstock’s Simon Fraser University, and there’s a tracking and storing information that dia’s biggest success to powerful interests are trying to shape MICHEAL VONN advocacy for aboriginal children. But handy podcast at bit.ly/mvonn. can be hugely revealing about our pri- date? Our biggest success regarding the Internet to serve them and not citi- Policy Director, British Columbia what does Cindy’s case tell us about vate lives. We are also very concerned free expression is defeating Vic Toews’ zens. It’s a real wake-up call to every- Civil Liberties Association (BCCLA) where the bar is set? Advocating for Who else is doing impor- about the Trans-Pacific Partnership online spying bill, C-30. We rallied one who cares about the Internet’s children! Ordinary people who want to tant work in this area? The (TPP). Its extreme new copyright more than 150,000 Canadians to speak future, and is well worth a read. What projects are you voice concerns, who want to stand up wonderful OpenMedia has spear- rules would make the Internet far out and say that warrantless, invasive working on? Freedom of expres- for a cause, are chilled by the knowl- headed a broad-based coalition from more censored, expensive and policed. and costly spying is unacceptable. It’s What advice would you sion is at the core of BCCLA’s man- edge that they are likely to be spied on across the political spectrum to push We’re working with a large interna- rare for a majority government not like to give Canadians? date. A big piece of our recent work is and viewed as a “threat.” Campaign back against online spying. Canada is tional coalition to put a stop to the to get their way on proposed legisla- Believe in your power to change things

34 CJFE REVIEW 2014 Interviews have been edited for length. CJFE REVIEW 2014 35 for the better. The challenges we face countries have. We have also made mission and arguably the downfall of encoded in statutory law. Canada Alexander “Sandro” Lisi, a friend of parent system with the countervail- can seem so huge that people feel dis- some adjustments in Canada’s score the Liberal government. In other cases, does have whistleblowing legislation, Toronto mayor Rob Ford; and the ing interests such as privacy rights empowered, but when Canadians stand due to standardization changes, which requests lead to changes in the proac- in the form of the Public Servants Senate scandal. and the need to preserve an accused’s up and work together, we can push reduced its score somewhat. tive disclosure of information, which Disclosure Protection Act, but this right to a fair trial by jurors capable of back and win. Your MPs need your then benefits a far greater number of law has several shortcomings, includ- Can you explain what an rendering an unbiased decision. vote, and nothing scares them more How does Canada’s people. For example, following a series ing the wholesale exclusion from its ITO is? An Information to Obtain, The courts are also engaged in pro- than local voters organizing against performance on the RTI of requests in Nova Scotia, spending scope of Canada’s Armed Forces and or ITO, is an affidavit sworn by a tecting people against false and them. Send your MP a message about Rating differ from its by members of the legislative assembly the Canadian Security Intelligence police officer submitted to a judge in damaging statements through the spying at openmedia.ca/stand, and actual performance on is now posted online monthly, avail- Service (CSIS). Finally, there have order to persuade the judge to issue a administration of defamation laws. encourage others to do the same. managing ATI requests? able to everyone without the need to been abuses of freedom of assembly, search warrant or a production order Unfortunately, defamation suits The RTI Rating only measures the file an access to information request. and of freedom of expression, in the [which requires a person to hand over can give rise to “libel chill,” where legal framework for RTI, not how context of several demonstrations in documents within a specified time]. unmeritorious lawsuits are brought countries implement those laws. Which provinces or ter- Canada, as well as several very unfor- Since these are orders sanctioning to block or discourage legitimate and However, we have observed that while ritories that stand out tunate, if short-lived, pieces of legisla- highly intrusive actions by the police, important free expression. Just the there is no linear correlation between as leaders in this area? tion extending police powers during the ITO must disclose to the judge cost of defending a lawsuit, let alone score and performance—inasmuch Which have the most demonstrations. the status of the investigation and the the possibility of suffering an award of as some high-scoring countries have room for improvement? relevance of the information sought damages, often deters poorly funded abysmal implementation records— According to CLD’s report, Failing through the issuance of a search war- public interest groups such as NGOs it is difficult for countries with weak to Measure Up: An Analysis of Access to rant or a production order. Much of from exercising their legitimate right laws to perform very well. Our own Information Legislation in Canadian the debate over what to release to the to free speech. The pernicious dam- experience suggests that this is the case Jurisdictions (bit.ly/cldreport), Brit- public focuses on the need to protect age these “SLAPPs” (strategic litiga- for Canada, and this is corroborated ish Columbia has the best ATI law in confidential sources and to protect tion against public participation) do by other studies. A number of studies Canada, scoring 97 on the RTI Rat- the fair trial rights of the accused. to free expression has been recog- on implementation, for example, ing, while Canada (federally) ties for nized by anti-SLAPP legislation in have indicated that Canada scores bottom place along with Alberta and Why is it so important Quebec and many U.S. states, and it behind peer group countries like New Brunswick (all with 79 points), that the public has access is being contemplated in Ontario [see the United Kingdom, Australia and with Saskatchewan, Quebec, Nuna- to court documents? “Anti-SLAPP Bill Stalled,” page 22]. New Zealand. It is very significant vut and the Northwest Territories not Canada has an open courts system, Hopefully, in spite of intense lobbying that Canada is only now starting far ahead. However, British Colum- which is meant to ensure account- by big business interests against anti- to put in place systems for making bia’s score would just place it 30th in ability through transparency. Public SLAPP legislation, Ontario will follow TOBY MENDEL electronic requests—which obviously the world, which is not exactly stellar. oversight is essential to keep those in through and pass this important bill. Executive Director, Centre for hugely facilitates the requesting At the same time, as noted, the RTI power honest and acting in the pub- Law and Democracy (CLD) process—whereas much poorer and Rating is a formal measure of the lic interest. The open courts system What other cases are you less developed countries, like India strength of the legal framework, which is one of the hallmarks of a healthy involved in? First, I want to Canada continues to and Mexico, have had these systems does not assess the quality of imple- democracy and one way in which recognize Phil Tunley, who has been drop on CLD’s Right to in place since the beginning of their mentation efforts. Canada is distinguished from the spearheading CJFE’s court challenge Information (RTI) Rat- RTI laws. repressive totalitarian regimes that to prevent police officers from imper- ing. Why do you think What are the biggest PETER JACOBSEN plague the world. Access to court sonating journalists. I, along with our this is? Many of the countries that Many Canadians will threats to free expres- Founding partner of Bersenas documents that should be publicly firm’s media group, am also working have adopted access to information never file an access to sion in Canada? Other than Jacobsen, CJFE Board member and accessible is too often dependent on on an important copyright matter, laws in recent years score above Can- information request. Why RTI, which is clearly a priority issue, Canadian Issues Committee Chair the whims of administrative staff, who and cases where we are seeking to ada on the RTI Rating, thereby push- should they care about our I would point to a number of weak- seem to interpret the directions of protect academic freedom. ing its position down. As the number ATI system? That is an inter- nesses in the overall framework for What projects are you their superiors depending on the case. of countries with RTI laws has grown esting observation and question. All freedom of expression. Defamatory currently working on? There needs to be a clearer recogni- Is there anything else from 89 in 2011 to 97 today, many of Canadians benefit from RTI even if libel remains a criminal offence, which In addition to our defence and plain- tion from courts’ administration deci- you want to add? Without the those eight new countries have scores they do not actually make requests. is inherently problematical, and almost tiffs’ litigation practice, our media sion makers that the public should media’s considerable investment of above that of Canada. At the same When a request leads to information no Canadian jurisdictions have legisla- practice recently has acted for consor- not have to suffer through delay and time, money and resources in defend- time, other countries have amended that reveals wrongdoing or corruption, tion against SLAPPs (strategic litiga- tia of various media outlets in seeking expense to get access to public court ing freedom of expression, the public their laws to make them stronger. A this helps create an environment that tion against public participation)— access to the Information to Obtains documents. would be without much of the infor- key problem with Canada’s Access to militates against this sort of behav- cases brought not to recover damages (the ITOs) in several public interest mation it needs to make informed Information (ATI) law is that it has iour, which is clearly to the benefit of but to silence people. The law on cases including the alleged Via Rail How involved are Cana- comment and those vital election day hardly been amended since it was all Canadians. It was, for example, a protection of sources has been devel- bombing plot; Project Traveller, a dian courts in protecting decisions. In addition, many ground- first adopted in 1982. While Canada series of ATI requests that revealed the oped through jurisprudence, which Toronto “guns and gangs” investiga- freedom of expression? breaking Canadian defamation cases was a global leader at that time, it has Quebec sponsorship scandal, which necessarily leaves some gaps, and the tion; Project Brazen 2, the drug and Our courts play a vital role in balanc- were the result of the media’s defence not advanced since then, while other ultimately led to the Gomery Com- whole area would benefit from being extortion investigation implicating ing the need for an open and trans- of freedom of expression. 

36 CJFE REVIEW 2014 CJFE REVIEW 2014 37 ABOUT CJFE

About CJFE who are being held in an Egyptian jail our 2013 Gala; check it out on CJFE’s caster in a campaign for their release. WHO WE ARE CJFE monitors, defends and reports on free expression on spurious charges. Finally, CJFE inter- YouTube channel at youtube.com/user/ This has included a social media blitz, and access to information in Canada and abroad. Rooted in the field venes in legal cases that we hope will lead CJFECanada. an online petition, a major press con- to the creation of better laws to protect ference and ongoing media coverage. of journalism, we promote a free media as essential to a fair and freedom of expression across the coun- EVENTS open society. CJFE boldly champions the free expression rights of try. These include cases of hate speech, In addition to our annual Gala, CJFE PARTNERSHIPS access to information, protecting sources, organizes and participates in confer- CJFE is fortunate to have the support of all people, and encourages and supports individuals and groups in police impersonating journalists and def- ences, film screenings, panel discussions several key organizations. Their pro bono the protection of their free expression rights and those of others. amation and libel. and other events throughout the year. You services allow us to work at a level that can find all of our events on theCJFE would not be possible otherwise. This JOIN CJFE and help us defend freedom of expression and press CJFE.ORG website. Recent events include: includes: freedom in Canada and around the world. The past year has seen CJFE’s website ■ Voices of Freedom, a multimedia ■ Award-winning ad agency Juniper Park become a specialized hub covering free event featuring a wide range of speakers, has worked with us on numerous proj- expression in Canada and abroad. We musicians and artists, held in partner- ects, including branding and the design cjfe.org @canadaCJFE facebook.com/canadacjfe youtube.com/CJFEcanada continue to find creative ways to provide ship with the Art Gallery of Ontario and of CJFE’s logo, public service announce- context and analysis on critical issues. in solidarity with Chinese dissident art- ments and the image on page 8 of this Our audience is growing, and CJFE’s ist Ai Weiwei. He has been under house edition of the Review of Free Expression website is becoming a go-to resource for arrest since speaking out against his gov- in Canada. understanding complex matters related ernment in 2011. ■ The savvy public relations team at Programs to free expression. ■ To mark the International Day to End Media Profile helps us design and imple- IFEX journalists from South America, Central expression, most perpetrators—including Impunity, CJFE held an online interac- ment communications strategies for our CJFE manages IFEX, a global network America, Mexico and the Caribbean. The those responsible for the murder of Can- COMMUNICATIONS & OUTREACH tive chat with Aaron Berhane, an exiled campaigns. Their work on the 2013 Gala that defends and promotes freedom of 2013-2014 Fellow is José Peralta, a jour- ada’s own Tara Singh Hayer—are never CJFE received financial support in 2012 Eritrean journalist now living in Canada. resulted in stories that reached an audi- expression as a fundamental human right. nalist from Uruguay whose work on orga- brought to justice. IFEX launched the from OMNI Television, which led to the He shared his first-hand experiences of ence of 6.5 million people. IFEX.org is a smart hub for free expres- nized crime, government corruption and first International Day to End Impu- creation of two public service announce- working in a culture of impunity and flee- ■ Massey College works with us on our sion news, information and resources energy development is a crucial part of nity campaign in November 2011 to ments (PSAs) in partnership with adver- ing his home country for safety. Scotiabank/CJFE Journalism Fellowship. contributed by 88 IFEX member orga- the nation’s growing free press. shed light on this global problem. Last tising agency Juniper Park. These capti- ■ Following the arrest of several Al ■ CJFE also receives generous support nizations spanning 60 countries, includ- year, the network welcomed the United vating 30-second PSAs explain how the Jazeera English journalists (including from CBC, CTV, The Globe and Mail, ing CJFE in Canada. No other network CJFE GALA: A NIGHT TO HONOUR Nations’ decision to proclaim Nov. 2 the erosion of free expression rights affects Canadian citizen Mohamed Fahmy) in the Toronto Star, OMNI Television, Al brings together such a range of interna- COURAGEOUS REPORTING International Day to End Impunity for Canadians. The second PSA launched at Egypt, CJFE partnered with the broad- Jazeera and many others. tional and local free expression groups, Each year we recognize the brave work Crimes Against Journalists as an oppor- enhancing international understanding of journalists and free expression advo- tunity to further build and strengthen of the issues and creating opportunities cates from Canada and around the world support for this cause. for advocacy work. at our annual Gala. More than 450 Organized by CJFE and Al people attended our 16th annual CJFE WORLD PRESS FREEDOM DAY Jazeera English, protesters JOURNALISTS IN DISTRESS FUND Gala, held at the Fairmont Royal York in Each year on May 3, World Press Free- in Toronto call for the release CJFE provides humanitarian assistance Toronto on Dec. 4, 2013, and hosted by dom Day serves as a reminder of the of Mohamed Fahmy and other to journalists around the world who have CBC correspondent Adrienne Arsenault importance of press freedom, and the journalists held in Egypt. been attacked or threatened because of and CTV’s Canada AM co-host Bev- critical role of freedom of expression. their work. We also coordinate a group erly Thomson. The International Press of 21 international organizations that Freedom Award winners were Dessale ADVOCACY WORK IN CANADA provides distress assistance to writers Berekhet Abraham, Mebrahtu Tecle- The vital free expression rights of Cana- and journalists. Grants are provided to sion Berhe and Ruth Zecarias Ghebre dians have been challenged repeatedly, help journalists and their families acquire from Eritrea and Ahmet Sık¸ from Tur- from the creation of the Alberta “Gag medical attention, travel to safety and key. Bob Thomson, the Canadian civil Order” law to the ever-diminishing power receive legal assistance. To date, CJFE has servant who blew the whistle on the of our Access to Information legislation. provided more than $220,000 in funding Canadian government’s refusal to accept In the past year, CJFE has successfully through this program. Chilean refugees following Gen. Augusto lobbied MPs to kill two bills that would Pinochet’s violent military coup in 1973, have compromised journalistic integrity SCOTIABANK/CJFE won our Integrity Award. at the CBC. We’ve also held two protests JOURNALISM FELLOWSHIP to pressure governments to release jailed In 2009, CJFE partnered with Scotiabank INTERNATIONAL DAY journalists: one at the Turkish embassy in and Massey College to create a Fellow- TO END IMPUNITY Toronto and another at Nathan Phillips ship to promote dialogue and explore When people act with impunity, it means Square, the latter of which was part of an journalism and free expression issues in they are not held accountable for their ongoing campaign to free Canadian citi-

the Americas. The Fellowship is open to actions. In cases of crimes against free zen Mohamed Fahmy and his colleagues, WILLIAMSON ANDREW CREDIT: PHOTO

38 CJFE REVIEW 2014 CJFE REVIEW 2014 39 A guide to the rules for accessing and sharing information in Canada’s court systems

APPENDIX: COURTS’ ACCESS POLICIES

OPEN COURT? COURTS ACCESS TO TRANSCRIPTS, AUDIO-VISUAL ACCESS ELECTRONIC PUBLIC The Canadian justice system is based on the “open court” principle. DOCUMENTS AND EXHIBITS TO COURT BUILDINGS ACCESS TO COURTROOM But, with the exception of the Supreme Court of Canada and ALBERTA Anyone may ask to view or copy Use of cameras and audio recording Lawyers and accredited media the Federal Court, court policies are under provincial jurisdiction, exhibits, transcripts and other devices is prohibited without prior members are permitted to use documents in both civil and criminal approval, with the exception of electronic devices, subject to certain and they vary widely. As this cross-Canada comparison shows, matters. There are fees for searches and accredited members of the media, restrictions (e.g., audio recoding for photocopying. who are permitted to make audio note verification purposes only). the information available and the ways in which it can and cannot recordings for note verification Members of the public are prohibited be shared remains open to interpretation. purposes only. from using electronic devices. By Anita Mielewczyk Current as of March 6, 2014 EXHIBITS: In civil and criminal Media are allowed to audio-record Only legal counsel and members of This section was made possible by a generous grant from Ad IDEM/Canadian Media Lawyers Association. SASKATCHEWAN matters, the presiding judge determines proceedings for note verification the media who have been accredited what access to exhibits will be provided; purposes only. by the Court Services Division of this includes requests to photograph, the Ministry of Justice may use COURTS ACCESS TO TRANSCRIPTS, AUDIO-VISUAL ACCESS ELECTRONIC PUBLIC film, photocopy or otherwise reproduce devices, in silent mode, to receive DOCUMENTS AND EXHIBITS TO COURT BUILDINGS ACCESS TO COURTROOM exhibits. TRANSCRIPTS AND OTHER and transmit information. Accredited DOCUMENTS: Access to a transcript, media may also send live text-based tape or CD will be granted for a fee, with communication (e.g., tweet) from the SUPREME Public, including media, can attend in The SCC provides a live feed Audio recorders may be used. the understanding that the transcript or courtroom. All of the above is subject person at the Court in Ottawa and inspect of all appeals to the Canadian Cameras are not permitted. The use audio recording must not be published to the discretion of the presiding COURT OF or broadcast in any way. judge. CANADA court records. Photocopies may be made at Parliamentary Press Gallery. The of laptops, handheld devices and a per page cost. SCC holds copyright over all video cellphones is permitted, as long as the (SCC) recordings; arrangements can sound is turned off. be made with CPAC to be given MANITOBA All documents or other material Cameras are allowed in designated Electronic devices are permitted in permission for limited use of video (physical or electronic) received or courtrooms, and will be fixed on court facilities and courtrooms. Only recordings of cases. maintained by the Court are accessible the judge as they render their members of the legal profession and and may be viewed; fees may be charged judgment. Family court cases, jury eligible media may use the devices to for copies. A Court order banning trials and witness testimony will not transmit and receive data, so long as FEDERAL All documents are a matter of public record Members of the media holding Laptop computers, smartphones publication of certain information be heard in courtrooms equipped it does not interfere with or disrupt COURT OF unless a legislative provision or court order valid credentials may audio-record and similar devices are generally contained in a court record does not with cameras. Lawyers will continue the proceedings. CANADA prohibits public access. Documents may be proceedings for note verification permitted only for the purposes affect access to that Court record.Court to have the right to argue against viewed or obtained in person or requested purposes only, but not for of note verification or electronic of Appeal and Court of Queen’s Bench: TV cameras, but the assumption by fax; there is a fee for copying. broadcast. Others (e.g., counsel or communication, including texting, Electronic access is given to certain is that they are allowed. Media members of the public) must seek tweeting and blogging. Federal Court Court record information, such as court are permitted to have recording permission from the presiding of Appeal: The use of electronic file number, listing of documents filed equipment in the courtroom for judge. devices in silent or vibration mode is and next hearing date. note verification purposes. permitted. Broadcasting or sending information electronically from the courtroom to the outside is not ONTARIO EXHIBITS AND DOCUMENTS: DIGITAL AUDIO RECORDINGS: Media, counsel, paralegals, law permitted. Information and copies of criminal Ontario Court of Justice and students and clerks, and self- court documents are accessible to the Superior Court: Copies of digital represented parties are permitted to public. If an exhibit in a civil proceeding Court recordings of matters heard use electronic devices in silent mode. BRITISH EXHIBITS: Supreme Court of British Accredited journalists may British Columbia Court of Appeal: Columbia and Provincial Court: Public record audio for note verification Any person may use an electronic was attached to an affidavit and filed in open court are available to the Members of the public are prohibited COLUMBIA with the court, it is publicly accessible. access to exhibits in criminal and civil only. British Columbia Court of device to transmit or receive text media, the public, counsel, litigants from using electronic devices in TRANSCRIPTS: Access is presumed proceedings must always be determined Appeal: Requests to video-record in a discreet manner that does not and the accused upon request; there the courtroom unless the presiding on application to the Court. TRANSCRIPS: and/or televise court proceedings interfere with the proceedings. in all levels of the court for a fee, with is a fee for copying. AUDIO-VISUAL: judge orders otherwise. cost based on the format requested No photo or video-recording devices British Columbia Court of Appeal: Anyone should be made to the Chief British Columbia Supreme Court and (i.e., printed copy per page or a copy of are allowed in the courtroom without entitled to be present in the courtroom Justice. Supreme Court of British Provincial Court: Only accredited the digital recording of a court hearing for a proceeding is entitled to order and Columbia and Provincial Court: journalists and lawyers who are the approval of the presiding judicial receive the transcript. Supreme Court of Cameras are forbidden in court members of the Law Society of on CD). official. Counsel and media are British Columbia: The public is not entitled buildings. Formal applications British Columbia are permitted to use permitted to make audio recordings to transcripts of criminal proceedings for cameras in courtrooms can be electronic devices to send or receive of the proceedings for note unless the Court orders access. In civil made after consent is obtained text. verification purposes only. proceedings, with some exceptions, from all parties. anyone entitled to be present in Court for the proceeding may have access to the QUEBEC In civil matters, except when prohibited The use of cameras is allowed in No one is allowed to email, tweet transcript. Provincial Court of British by law or by a court order, proceedings specific areas of the courthouse as or text from inside the courtrooms. Columbia: Copies of the transcript can be and judicial records are public and access designated by chief justices. The It is prohibited to broadcast or purchased unless restricted by Court order. to records, exhibits and recordings is media are authorized to record communicate text messages, OTHER DOCUMENTS: Supreme Court of permitted. In criminal matters, before proceedings and any decision on observations, information, British Columbia: In criminal proceedings, allowing the reproduction of exhibits, audiotape, unless the judge decides notes, photographs, audio or other documents (e.g., bail applications, the Court clerk must verify that the otherwise; however, they are video recordings from inside the search warrants) are available under certain court has authorized it. Media in Quebec prohibited from broadcasting these courtroom to the outside. conditions. In civil proceedings, the public typically have access to exhibits during recordings. may access any affidavits and attached a trial, without any formal motion or exhibits that have been filed with the Court application. Provincial Court of Québec: unless a statutory provision, common-law It is permitted to obtain and broadcast a rule or Court order restricts or limits access. copy of official recordings of proceedings for criminal and civil matters.

40 CJFE REVIEW 2014 CJFE REVIEW 2014 41 APPENDIX: MAJOR COURT DECISIONS 2013-14

COURTS ACCESS TO TRANSCRIPTS, AUDIO-VISUAL ACCESS ELECTRONIC PUBLIC Helena DOCUMENTS AND EXHIBITS TO COURT BUILDINGS ACCESS TO COURTROOM Guergis

NEW BRUNSWICK No policy. No photographs, digital images Cellphones may be set on silent or or audio or visual recordings are vibrating mode, unless this interferes permitted. with the Court’s recording devices; answering calls and sending text messages is not permitted. Members of the media may make an audio recording Legally for note verification purposes, and they may use electronic devices to capture notes and transmit text provided that the device does not interfere with the Speaking Court’s recording equipment.

EXHIBITS: If the case is pending or Only media may produce, record Answering cellphone calls is not ongoing, media must make a request or transmit audio, video or still permitted, but cellphones must be IXED. That’s the best word to NOVA SCOTIA to the presiding judge for access photographs from inside the set on vibrating or silent mode only; to exhibits. TRANSCRIPTS: Typed courthouse, and only within receiving text is permitted only if it describe the impact court cases transcripts of proceedings are not designated media areas—not doesn’t interfere with the proceedings or provided to the public; however, in courtrooms. Media may courtroom recording system. Court of have had on free expression in copies of tapes of most proceedings in use audio recorders inside Appeal: Texting, tweeting and emailing is Canada over the past year. While there have the Appeal, Supreme and Provincial courtrooms for note verification allowed by default, unless the presiding M courts are available for a fee. OTHER purposes only. Nova Scotia justice says otherwise. Supreme and been some positive developments, certain DOCUMENTS: Media and the public Court of Appeal: Television or Provincial Courts: Transmission of rulings could have far-reaching and worri- have access to court documentation in other photographic coverage and information about the proceedings from the custody of the Court Administrator. audio recordings of proceedings inside the courtroom by any means is not some consequences for journalists and Documents that have a publication ban are not permitted except by allowed without permission. are open to public inspection. order of the Court. Canadian citizens in general. Media workers across the country gained PRINCE EDWARD EXHIBITS AND OTHER Only members of the bar, Court of Appeal: Members of the public improved access to information related ISLAND DOCUMENTS: CDs/tapes of the law clerks, law students, law are not permitted to use electronic evidence are provided upon request. enforcement officials, self- devices. Members of the bar, law clerks, to ongoing police investigations, most Unless otherwise provided by any represented litigants and law students, law enforcement officials, other Act, the rules or a court order, members of the media are self-represented litigants and members notably getting the opportunity to publish any person is entitled to see any permitted to make an audio of the media may use an electronic warrants and wiretap evidence used during document filed in a civil proceeding recording for note verification device in silent mode, which includes in a court, for a fee. P.E.I. Court of purposes only. Accredited media transmitting information from the a police probe into Toronto mayor Rob Appeal: The public and media may will, upon request, be provided courtroom to a publicly accessible search the file indices and review with a designated space in the medium (e.g., Twitter, Facebook or live Ford and his associates. On the other side documents except where access is courthouse for interviews. Court blog). of the spectrum, there has been disquieting restricted. TRANSCRIPTS: P.E.I. of Appeal: Media operation of Court of Appeal: Media may receive television and still cameras is movement on libel and defamation law. a CD of a decision or proceeding for allowed in the courtroom during a fee. a hearing, unless the presiding In one trial of note, the Ontario Court of judge orders otherwise due to Appeal ruled that libel republished across special circumstances. different mediums (e.g., in print and on COURTS OF APPEAL NEWFOUNDLAND EXHIBITS: A form must be submitted Newfoundland Court of Appeal: No policy currently in effect. websites) must be treated as a separate AND LABRADOR to a judge before access can be granted There is no restriction on audio libel on each of those mediums. This case MHR BOARD GAME DESIGN INC. V. to the public or media. TRANSCRIPTS: or visual recording, upon request, The Court Reporters’ Office will provide unless a sitting judge objects. sets a significant precedent that could leave CANADIAN BROADCASTING CORPORATION copies of the tapes of a civil proceeding Provincial Court: Use of cameras media outlets and citizens alike open to 2013 ONCA 728 (DEC. 3, 2013) for a fee. A transcript of an oral decision is prohibited unless the sitting The Ontario Court of Appeal ruled that the CBC could edit or order will be provided for a fee. judge grants permission. chilling, and potentially very expensive, a segment of Dragon’s Den “as it saw fit,” which included compounded litigation. the possibility of portraying a contestant in a “factual, fic- YUKON In criminal matters, exhibits and Counsel, parties or media Counsel and accredited media are documents not under publication ban representatives who wish to permitted to use electronic devices The past year’s rulings show that, in tional or defamatory image.” The contestant in this case had may be obtained at the Court registry record proceedings must make for note verification purposes and some cases, the efforts of those fighting signed a Consent and Release agreement, which amounted by accredited media, subject to the an application to the presiding transmitting digital information about to an “express and unambiguous” release of all such claims. discretion of the trial judge. If the judge. Devices capable of audio or the proceedings, including tweeting to expand free expression in Canada are Crown or defence object to publication video recording must have those and blogging; they are not allowed to paying off. But the laws governing that This decision confirms the validity of properly executed of an exhibit, the a formal application functions switched off or inactive make an audio or video recording of the release forms and should discourage defamation claims made to the Court must be made. during a Court proceeding. proceedings. right still run the gamut from laudable to by those who have signed them. slipshod to completely unacceptable, and ■ Full text of decision: canlii.ca/t/g23r1 NORTHWEST Transcripts are available from the Use of cameras and audio- and Use of cellphones, smartphones, laptops, strengthening those laws will continue to TERRITORIES Court Reporters’ Office on request; video-recording devices is tablets or anything of a similar nature is fees are charged for copies. prohibited. prohibited for the public. Lawyers, justice require vigorous efforts from the defenders GUERGIS V. NOVAK 2013 ONCA 449 professionals and members of recognized (JUNE 28, 2013) media organizations are permitted to use of free expression in Canada. electronic devices for note verification Former Conservative cabinet minister Helena Guergis, who only; sending or receiving email or The following summaries were written by Anita Mielewczyk. claimed she was pressured to resign under duress following a texts, recording audio or video or taking meeting with Prime Minister Stephen Harper, has been stopped photographs is prohibited. This section was made possible by a generous grant from

PHOTO BY: SEAN KILPATRICK/THE CANADIAN PRESS CANADIAN KILPATRICK/THE SEAN BY: PHOTO Ad IDEM/Canadian Media Lawyers Association. from suing the prime minister, the Conservative party and others.

42 CJFE REVIEW 2014 CJFE REVIEW 2014 43 Dennis Oland (with wife, Lisa)

ing was an issue, so the court decided to leave this decision to trial. However, the Court ruled that where an alleged libel material. Further, the negative impact on the public’s right to is republished across different mediums, including the Inter- know … would greatly exceed any beneficial effects of main- net, those republications will be treated as distinct libels. As a taining the sealing order.” result, plaintiffs can choose which allegedly libellous publica- ■ Full text of decision: canlii.ca/t/g1vsp tions they might wish to sue upon. The decision also meant that the plaintiffs’ action for libel with respect to the online R. V. CTV 2013 ONSC 5779 (SEPT. 20, 2013) version of the article could proceed to trial. Chiheb Esseghaier and Raed Jaser were charged with terror- ■ Full text of decision: canlii.ca/t/fz6kd ism offences relating to a plot to derail a VIA Rail train, and a judge sealed the six ITOs sworn by police to obtain search warrants. Media outlets applied to have the orders unsealed, SUPERIOR COURTS and for the right to publish the contents of the ITOs. The court granted the media applications in part. How- EDMONTON JOURNAL V. CANADA ever, to protect the fair trial rights of the two accused, certain (JUSTICE) 2013 ABPC 356 (DEC. 18, 2013) information in the ITOs will remain sealed until their trials. The Edmonton Journal successfully brought an application for ■ Full text of decision: bit.ly/1rRDOGl the right to see the information a justice relied on in issuing a production order (which compels someone other than the NORTHWEST ORGANICS LIMITED PARTNERSHIP person under investigation to produce documents) sought by V. MAGUIRE 2013 BCSC 1328 (JULY 26, 2013) the police. The Justice Department, on behalf of the police, In this case, which was heard in the Supreme Court of British had argued that the newspaper should not have the right to Columbia, the defendants (a group of residents in the Botanie see the Information to Obtain (ITO) on the basis that they Valley, near Lytton, B.C., who call themselves the “Botanie sought the production order for an ongoing police investigation. Valley Advisory Committee”) were sued for defamation by Mishael In his judgment, Justice J.L. Dixon stated: “the administra- Northwest Organics, Ltd. and Northwest Group Properties Shtaif tion of justice is always best served through fully illuminated Inc. (a corporation owning property in the Botanie Valley), and informed debate within the arena of the courtroom…” which was actively developing a composting facility. ■ Full text of decision: canlii.ca/t/g2jt1 The defendants, who oppose the development of the facility, applied for an order to dismiss the plaintiffs’ claim of defama- Guergis had been seeking general damages of $800,000, R. V. HUTH 2013 BCSC 2123 (NOV. 22, 2013) tion as strategic litigation against public participation (SLAPP). along with another $250,000 in punitive damages from each This judgment from British Columbia resulted in the release The defendants say the primary purpose of the lawsuit is to of the 10 defendants, alleging, among other things, defama- of copies of videotapes to CTV Vancouver Island News, after infringe on their freedom of expression. In their application, the tion, conspiracy, negligence and intentional infliction of men- it applied for their release. The videos were filmed by sur- restaurant in Victoria, B.C., where a murder took place, and defendants had argued that the tests for certain rules in B.C. tal suffering. The defendants argued they were protected by veillance cameras located inside and outside a McDonald’s they were used as exhibits in the manslaughter trial and con- civil proceedings should be revised in the context of SLAPP Crown or parliamentary privilege, and that their statements DENETTE/THE NATHAN (MICHAEL SHTAIF), AND MAIL GLOBE FERNANDO MORALES/THE BY: PHOTO (DENNIS OLAND) PRESS CANADIAN LISI), MICHAEL HAWKINS/THE (ALEXANDER PRESS CANADIAN viction of Brandon Huth. cases. Justice Savage noted that applying the rules in this way were not defamatory. ■ Full text of decision: canlii.ca/t/g1zlb would “radically change the substantive law of defamation,” The Ontario Court of Appeal agreed with the defendants and and he declined to address the defandants’ application. He ruled “the statements and letters upon which the allegations of CANADIAN BROADCASTING CORPORATION AND suggested that this issue could be addressed by the legisla- defamation are based are either not capable of being defama- OTHERS V. HMQ 2013 ONSC 6983 (NOV. 13, 2013) ture. Currently, only Quebec has rules specifically addressing tory or are protected by absolute privilege” on the grounds that In the fall of 2013, there were decisions on a number of media SLAPP suits. they were between officers of state. applications to the Ontario Superior Court of Justice request- ■ Full text of decision: canlii.ca/t/fzttb ■ Full text of decision: canlii.ca/t/fzgjl ing access to additional information in the ITO for the “Project Traveller” investigation. This most recent judgment focused on CANADIAN BROADCASTING CORPORATION SHTAIF V. TORONTO LIFE PUBLISHING edited material the Crown was withholding on various grounds. ET AL V. SAINT JOHN POLICE FORCE ET AL CO. LTD. 2013 ONCA 405 (JUNE 17, 2013) Project Traveller was an ongoing investigation into alleged NBQB 167 (MAY 17, 2013) Michael Shtaif and Gregory Roberts brought an action against gang-related activity concentrated in northwest Toronto. It In November 2013, Dennis Oland was charged with second- Toronto Life for an article published in June 2008 that they implicated Toronto mayor Rob Ford and several of his acquain- degree murder in the death of his father, Richard Oland, who claimed was libellous. However, when the article first came out tances, including friend and occasional driver Alexander Lisi. was found dead in his Saint John, N.B., office in July 2011. in print form, neither Shtaif nor Roberts sued. They became After having been ordered to release an edited version of the While the investigation was in progress, and prior to Dennis aware of the online version of the article a few months later ITO in an earlier judgment, the Crown argued that informa- Oland’s arrest, media organizations had been trying to have and then launched their lawsuit. tion relating to innocent third parties, wiretaps, police investi- the search warrants, ITOs and other sealed court documents Toronto Life argued, in its defence, that Shtaif and Roberts gative techniques and confidential informants should remain made public. This decision from the New Brunswick Court had waited too long to sue, based on the existing time limita- blacked out. However, Justice Ian Nordheimer found that, of Queen’s Bench quashed the publication ban on the names tion rules for commencing a defamation lawsuit involving a with the exception of information relating to the mayor’s wife of the persons searched and the murder suspect. Subsequent “newspaper” or “broadcast.” and information that could compromise the fair trial rights of decisions released in October 2013 removed other redactions The Ontario Court of Appeal noted that these time limita- Alexander Lisi, “there is no serious risk posed to the admin- on information contained in the transcripts of the cross exami- Alexander Lisi tions were written for traditional media before web publish- istration of justice arising from giving public access to this nation of one of the investigating officers.

44 CJFE REVIEW 2014 CJFE REVIEW 2014 45 SUPPORT CJFE THANK YOU YES I’ll support CJFE and TO OUR help advance freedom of expression in Canada and around the world. SUPPORTERS You can make a donation online at cjfe.org, or you can fill out this form and mail it to the address below. CJFE sincerely thanks the following organizations, whose generous support has been critical in making the publication of ENCLOSED IS MY DONATION OF our fifth annual Review of Free Expression in Canada possible:  $25  $50  $100  Other $ I WOULD PREFER TO MAKE A MONTHLY DONATION OF Canadian Media Guild  $10  $20  Other $ CWA/SCA Canada Media Profile  MY CHEQUE MADE PAYABLE TO CIFET TC Transcontinental (Canadian International Freedom of Ad IDEM Expression Trust) is enclosed. Juniper Park The Globe and Mail PLEASE CHARGE MY CREDIT CARD Canadian Commission for UNESCO  VISA  MASTERCARD NAME ON CREDIT CARD: NUMBER: EXPIRY DATE: SIGNATURE:

SUPPORTER INFO NAME: ADDRESS:

PHONE: EMAIL: We would also like to give special recognition to the dozens of people who donated to our crowdfunding campaign and shared it on social media. With your support, we surpassed our $5,000 goal, raising a total of $6,026—money that funds the Review PLEASE RETURN TO CJFE 555 Richmond St. W., Suite 1101, and greatly supports CJFE’s work in defense of free expression. Our deepest thanks PO Box 407, Toronto, Ontario M5V 3B1 go to all of you for helping to make this good work possible. Charitable #BN 891043 747 RR000 1

46 CJFE REVIEW 2014