The furor over allegations of Beijing interfering in our elections stems from whistleblowers, most likely CSIS employees who leaked classified information to Global News and The Globe and Mail.
As the revelations pile up in the media, the Prime Minister has been roundly criticized for failing to address them with transparency. However, this response only highlights the public interest role of whistleblowers who, in such situations, become the only means of exposing government corruption or incompetence.
One of the anonymous whistleblowers published an opinion piece in the Globe and Mail Friday. “I asked myself: Can I do this while mitigating the risk to our country’s sources and methods? Will this mean the end of my career? Who will take care of my family if I go to prison?” the source wondered. “For me, the answer to these questions was found in weighing them against the public interest.”
On one hand, our Supreme Court has acknowledged how pivotal leakers are in bringing truths out of the dark. In the R v. National Post case, Justice Ian Binnie explicitly located the role of whistleblowers and confidential news sources in the context of the public’s right to know. He elaborated: ”The public is interested in being informed about matters of importance that may only see the light of day through the cooperation of sources who will not speak except on the condition of confidentiality.”
We might add to this the benefits of such matters coming to light: public debate ensues, governments are made accountable for their action or inaction, and meaningful policy and legal reforms can result.
To deflect attention, however, Prime Minister Justin Trudeau blamed others outside his government for the controversy. This has included Mr. Trudeau turning the guns on the leakers from the Canadian Security and Intelligence Service, calling for an investigation to identify them – a request that CSIS head David Vigneault has acceded to.
Internal investigations meant to out confidential news sources are a time-worn method to plug damaging leaks. This happened in 2020 when an anonymous source leaked voice recordings of “confidential deliberations” that showed expert advice on COVID measures being rejected by the Alberta government.
If CSIS ferrets out its leakers, they will likely be fired without legal recourse. Even worse, they may be charged with the indictable offence of wrongful communication of secret information under the Security of Information Act.
“Can I do this while mitigating the risk to our country’s sources and methods?” asked one of the anonymous leakers in Friday’s Globe and Mail Comment piece. “Will this mean the end of my career? Who will take care of my family if I go to prison?”
Likewise, the journalists are potentially criminally liable under the same legislation for simply receiving the classified information.
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If the internal investigation fails, the police could seek a court order to compel journalists to identify their sources.
This would not be automatic since the law protects confidential news sources and journalistic newsgathering. The police need to convince a court that the public interest in gathering evidence for a criminal investigation outweighs the public interest in preventing a chilling effect on confidential news sources coming forward in the future.
Historically, the police come out on top almost every time. For example, in the two leading Supreme Court of Canada cases, National Post and R. v. Vice Media, the court ordered journalists to hand over their notes and information about a source as evidence. In fact, according to arguments advanced in Vice Media, the police have successfully secured evidence from journalists in 12 of 13 prior cases.
The federal Journalistic Sources Protection Act (JSPA) passed in 2017 promises greater protection for confidential news sources by reversing the burden of proof onto the police to show the evidence that reveals a source is needed. However, this misses the mark. Courts never based their decisions on who had the burden of proof. In the two cases that have applied the JSPA since it came into force, R v. CBC and R. v. Virtanen, both courts ordered journalists to hand over evidence without even considering the burden of proof.
Ideally, CSIS whistleblowers would have proper channels to disclose their concerns. For most federal employees, the Public Servants Disclosure Act is supposed to offer them a haven to report government wrongdoing. However, this mechanism is not available to CSIS employees.
In its place, an internal procedure is set up to deal with “suspected irregularities,” though there are no details about how this works. One fatal deficiency is the lack of an outside independent agency to investigate allegations of wrongdoing and to protect against internal workplace reprisals.
It is indeed a strange paradox that our law recognizes the public interest value of leakers but does so little to protect them. This leaves a grim choice. Act according to your conscience, suffer the prospect of job loss and ensuing personal turmoil and, if you work for CSIS, a possible criminal conviction. Or you keep quiet.
This is not the way it should be. The road to better government should not be littered with the broken lives of whistleblowers or the journalists who try to protect them while informing the public about profound national matters.
One wonders what other information the CSIS agents or journalists have in hand, but many now be wary to publish. For example, could there be photos or wiretaps of Canadian politicians meeting with high-ranking Chinese government officials? We may never know.
We should not expect the journalists involved to tempt fate by disclosing even more sensitive information. Nor should we expect the uncertain process initiated by the prime minister, who just controversially appointed David Johnson as rapporteur, to bring such information to the public’s attention.
The public has a right to know more about what is going on with Chinese interference in our electoral process and in the everyday lives of Canadians of Chinese origins.
Trudeau and the CSIS brass should lay off the intimidation tactics. To avoid this kind of scandal, they should create better mechanisms to effectively manage whistleblower complaints. In the meantime, the public is looking for the government, not the whistleblowers or journalists involved, to be accountable.
Cameron Hutchison is a law professor at the University of Alberta who teaches and researches in the area of freedom of expression and the public interest.