Blog by John Miller

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Unwarranted power

Until this week, Josée De Carufel was an obscure Quebec justice of the peace, one of 10 toiling at the Montreal courthouse at 1, Rue Notre-Dame Est.

Appointed for life, JPs in Quebec handle a range of lower-level judicial proceedings, including bail hearings and applications for search warrants.

Now, because of her repeated and outrageous authorizations of police surveillance of a journalist, De Carufel stands at the centre of one of the most important debates over freedom of the press in recent memory.

Here's why you and I should care about it.

1. Journalists should not be treated as investigative tools of the police.

According to La Presse, De Carufel issued most of the 24 warrants that allowed Montreal police to track phone calls made by one of its columnists, Patrick Lagacé, for more than a year. Using the warrants, police were able to obtain  the identities of the people he spoke  and texted with as well as to track his whereabouts via his iPhone's GPS.

La Presse quoted one of the investigators who met with Lagacé as saying:“You were like an investigative tool, in a sense.”

This seems to fly in the face of what the Supreme Court of Canada ruled in 2010. While Canadian journalists do not have an automatic right to protect their sources, they will not be compelled to reveal sources without a good reason. The revelation of a source's identity must have some public good or else it will not be ordered.
De Carufel's actions do not appear to pass that test. We do not yet know how police justified the warrants to her, but we do know this: Lagacé was not suspected of any crime, nor was any member of the public. The target of the police investigation was one of their own, an officer who was suspected of leaking information to criminals. But no information gathered by the surveillance resulted in any criminal charges. And the head of the police unit that applied for the warrants was investigated not long ago for allegedly lying in an attempt to get other search warrants.

And that, it seems to me, amounts to no justification at all.

2. Trust lies at the heart of good journalism.

Although Montreal Police Chief  Philippe Pichet  defended the warrants and said the police broke no rules in obtaining them, the Quebec government has moved to protect journalists from such surveillance and is investigating the actions of the Montreal police. Montreal Mayor Denis  Coderre  sounded a welcome note of concern: "Democracy is fragile. We have to make sure we're protecting it, and one of the reasons why we have democracy is freedom of speech and freedom of press."

Lagacé, the columnist whose phone was compromised, said it best, though. “I was living in the fiction that police officers wouldn't dare do that, and in the fiction that judges were protecting journalists — and hence the public — against this type of police intrusion. Clearly, I was naive.''

Journalism is important to democracy but isn't effective unless there is trust – the trust of readers that what is printed is verified, the trust of editors in the ethics and tactics of their reporters, and – above all – the trust of journalists in their sources and the trust of sources in the integrity of journalists.

That trust is fragile and it was broken by the police decision to track whom Lagacé chose to talk to. Suppose he'd spoken with someone who asked for anonymity because she was a government employee who could be fired for leaking information that the public was being misled by an action of a minister. That person would surely go to ground if she knew or suspected that police were monitoring everyone who was speaking to the journalist. The duty of the media to inform citizens about issues that are in the public interest is one reason why freedom of the press is guaranteed in Section 2(b) of the Charter of Rights.

In the case at hand, police clearly violated that right, and for no good reason.

Evidence that police were  tracking Lagacé came to light accidentally, when another  LaPresse reporter looked  into a police investigation about anti-gang officers fabricating evidence — and Lagacé's  name kept coming  up.

Investigators met with Lagacé last Friday to explain the context in which police wanted access to his phone. “We were not  legally  obliged to, but wanted to meet with him to explain what we were doing," Montreal's police chief said.

According to La Presse, they told the journalist that they found Lagacé’s telephone number among the contacts during a search of the telephone of a police officer who was suspected of leaking information to the Mafia. They also noticed that sensitive newspaper articles had been published a short time later that involved files on which the officer was involved.

But La Presse said that none of the articles in question were written by Lagacé. At times they were not even published by La Presse. The police officer in question, Faycal Djelidi, was charged with perjury and obstruction of justice, but not with leaking police information. So the invasion of the reporter's telephone produced nothing.

This violation of impartial journalism is important because fewer and fewer Canadians say they trust the news media. According to the results of a national poll released last month by CBC and the Angus Reid Institute, 64 percent of people aged 18 to 34 said most of the stories you see in the news can't be trusted.

3. Abuse of power is the real issue.

 A  committee reviewing judges’ compensation in Quebec last month  said justices of the peace bear "a heavy responsibility"  because many of their decisions are heard in camera and based solely on documents prepared by peace officers or public officials. It noted  the vast majority of JPs have previously worked for the government, which could lead to “an appearance of institutional bias.” Before she became a JP in 2012, De Carufel spent two decades as a lawyer employed by the provincial government.

Given the seriousness of the intrusions into freedom of the press, it seems strange that the Montreal police force would rely on the same justice of the peace, and not a judge, to grant its warrants.

In its only statement on the case, the Quebec Court refused to comment on the role played by De Carufel. "The fundamental principle of judicial independence guarantees their freedom to decide without fear of interference, control or influence on the part of anyone,” it said.

There is also no explanation for the sudden reassignment of Chief Inspector Costa Labos, who approved the application for the Lagacé warrants as head of the Montreal force’s internal affairs department and who defended them as the “least intrusive” way to gather information in the case.

The day after La Presse learned police had spied on  Lagacé, Labos  was transferred to another department.
This summer, Labos was himself investigated by the Sûreté du Québec over an allegation that he lied to a judge in 2014 to obtain a search warrant to wiretap the phones of former police officer Roger Larivière, as well as to search his  home. Labos suspected Larivière was leaking information to a journalist. The Crown prosecutor's office found evidence that Labos lied but decided against laying charges.

Some commentators are blaming the contentious anti-terrorism legislation passed by the former Conservative government of Stephen Harper, Bill C-51.  Although it was originally passed to curb cyberbullying, Bill C-13  amended the  Criminal Code to allow police to, among other things, track an object, person, or transmission of data if the  authorities have the suspicion or belief that doing so could assist an investigation.

Technology expert Christopher Parsons told CBC that “we have an absolute deficiency in accountability” when it comes to how police obtain tracking orders. "These orders that were used to conduct surveillance on the journalist and his respective sources, those are all powers that can be used in ongoing investigations, so most Canadian citizens will be subject to them."

What's more, the target of such surveillance "won't necessarily be notified that they were targeted by the surveillance unless charges are brought against them," Parsons told CBC. "So the police could conduct surveillance and the target would never know."

It wouldn't surprise me if, in the coming days, we find other journalists coming forward to say they've been spied upon by police.

And that should concern you, me and every Canadian.