Canada's press freedom threatened by demands to reveal confidential sources

A Supreme Court case involving VICE News reporter Ben Makuch highlights the lack of protection for correspondence between sources and journalists.

by Chris Arsenault
May 3 2018, 3:35pm

Canadian Press

Legal actions launched by the government targeting reporters to demand information on sources represent gravest threat to journalistic expression in Canada, said a senior official with Reporters Without Borders amid celebrations of World Press Freedom Day on May 3.

Practical problems in obtaining government documents under the the Access to Information Act, along with the general decline in newsroom budgets across much of the industry, are some of the other most pressing issues facing Canadian journalists, two other experts added.

“The biggest concern in Canada in press freedom is the protection of confidentiality of journalists’ sources,” Margaux Ewen, executive director of Reporters Without Borders North America told VICE News. “There needs to be more than lip service to press freedom.”

Canada ranks 18th on Reporters Without Borders 2018 index of press freedom, ahead of the United States and Great Britain, but behind Estonia, Portugal and Costa Rica.

Canada’s ranking improved by four spots in 2018 compared to the previous year, with Reporters Without Borders citing new legislation passed by the Liberal government at the end of 2017 designed to protect journalistic sources. That legislation still has not been tested in court, so its effectiveness remains unclear.

“While Canada guarantees freedom of the press under its 1982 constitution, circumstances faced by journalists indicate otherwise, despite recent concrete steps to address them,” Reporters Without Borders said in its analysis.


Several prominent journalists in Quebec were placed under police surveillance in 2013 amid their reporting on public sector corruption. Police launched the surveillance to try and track down the journalists’ confidential sources “not because the journalists had done anything wrong,” Ewen said.

VICE News journalist Ben Makuch is facing a related ordeal on source protection after the RCMP demanded access to his electronic communications with Farah Shirdon, a Calgary man suspected of leaving Canada to fight with Islamic State militants in Syria and Iraq. An Ontario court issued a production order in 2015, demanding Makuch hand over the correspondence. Makuch refused, citing the journalistic responsibility to protect sources.

The ongoing case will be heard by the Supreme Court on May 23, despite the fact that Shirdon, the source at the centre of the dispute, was killed in a US airstrike, according to a 2017 US military statement.

“The action against Ben Makuch going before the Supreme Court is another illustration of the principle concern,” Ewen added. The government has not been commenting on the specifics of the Makuch case because litigation is ongoing.


Some press freedom advocates believed Canada’s ranking would rise faster, and the situation for reporters would improve, following the election of the Liberals in 2015.

Prime Minister Justin Trudeau has called independent media and the free press “essential in the protection of our democracy and of its institutions" and “something we believe in strongly as a government.”

The Conservative government of former Prime Minister Stephen Harper had been criticized by journalists' organizations for excessive secrecy and a frosty relationship with much of the press corps, according to Errol Salamon, a visiting scholar at the Annenberg School for Communication in Pennsylvania.

“The problem with the Trudeau government is, like in other areas, Trudeau doesn’t always practice what he preaches for media freedom,” Salamon told VICE News.

The Liberals passed the Journalistic Source Protection Act last year, which was supposed to protect confidential communications between journalists and people who provide them with information.

If the government is serious about source protection, authorities should drop the case against Makuch, according to Salamon, adding, “otherwise, journalists have the potential to be an extension of law enforcement agencies and sources may not report information to journalists.”


Colette Brin, director of the media studies department at Laval University in Quebec, is more optimistic about the new legislation. Although the source protection law hasn’t been tested in court yet, unveiling the legislation “certainly sent a signal,” Brin told VICE News.

While it “remains to be seen how the legislation will work for the day-to-day activities of reporters,” she said the the situation “certainly is not going well on the Access to Information Act.”

First created in 1985, Access to Information legislation allows researchers to obtain documents from public bodies, such as spending records, minutes from meetings, or briefing notes prepared for politicians in a bid to make government more transparent.

Reporters increasingly rely on the legislation as part of their investigations which is a positive development, said Brin, although “there many criticisms that the material is either being destroyed or not being created so journalists can access it.”

The Liberals launched new legislation last year to update the act, following a series of public consultations. Ironically, details on how the government came up with its plan to reform the Access to Information system were redacted when VICE News requested the material last year.

Briefing notes prepared in advance of the new legislation do show, however, that the federal government applied more than 30,000 exceptions to the 67,000 requests for information it received in 2015. In other words, nearly half of the requests for public data were not fully approved.

Moreover, the delay in actually receiving the information from public bodies like police forces, provincial agencies or federal departments can last years, Brin added.

"Journalists are constantly disappointed with access to information."