How Montreal police were able to use legal means to track a journalist

A bill originally meant to curb cyberbullying may be part of the reason why Montreal police were able to spy on La Presse journalist Patrick Lagacé, some experts say.

Bill C-13, police culture, lax justices of the peace could be factors, experts say

Montreal police Chief Philippe Pichet speaks to the media about tracking a newspaper reporter's smartphone at a news conference, Monday, October 31, 2016 in Montreal. (Ryan Remiorz/Canadian Press)

The Quebec government says it wants to make it more difficult to obtain a search warrant that would target a journalist, raising the bar to a higher level – on par with lawyers and judges.

The move, announced by Premier Philippe Couillard, comes after it came to light that La Presse journalist Patrick Lagacé was being spied on by Montreal police.

Through 24 issued surveillance warrants, the SPVM was 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.

But how were the Montreal police able to obtain that in the first place?

Cyberbullying law to blame?

It will only be known on Nov. 24 how the Montreal police obtained the warrants from a justice of the peace. That's the date the warrants will be unsealed.

Though some have pointed to the contentious anti-terrorism legislation, Bill C-51, as a catalyst for more invasive police tactics in Canada, Christopher Parsons, managing director of the Telecom Transparency Project at Citizen Lab, says a bill originally passed to curb cyberbullying may be to blame.

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.
Christopher Parsons, managing director of the Telecom Transparency Project at Citizen Lab, says 'we have an absolute deficiency in accountability' when it comes to how police obtain tracking orders. (Courtesy Christopher Parsons)

Parsons said that Bill C-13 was "sold to the Canadian public as necessary to stop cyberbullying," but applies to the general public.

"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," he said.

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."

Parsons said Bill C-13 is serious legislation that was rushed through Parliament.

At least 24 surveillance warrants were issued for Patrick Lagacé's phone this year at the request of the police's special investigations unit. (CBC)
Critics already expressed concern that the bill gave police too much surveillance power when it was on the cusp of being approved in December 2014.

"What it really means we need to do is evaluate the existing powers, evaluate whether or not they should be granted to the police in their current format," Parsons said, adding that no one really knows how these surveillance powers are being used.

"We have an absolute deficiency in accountability, to be honest, at both the provincial and federal level," he said.

More protection for reporters

Independent senator and former journalist Andre Pratte wants the Liberal government to look seriously at beefing up protection for reporters and their sources and says he'll pursue the idea himself if the federal government doesn't.

In an interview, Pratte says it is quite worrisome that Montreal police obtained warrants to monitor one of his former colleagues, La Presse columnist Patrick Lagace.

Public Safety Minister Ralph Goodale says the Supreme Court of Canada has already explicitly laid out the test that must be satisfied when police investigations intersect with media freedoms.

Pratte, a former editor-in-chief of La Presse, says those rules were not enough to protect Lagace and his sources.

The justice of the peace

Regardless of the laws the police used to justify requesting the warrants, a justice of the peace had to approve them.

That's not so hard to do, according to criminal defence lawyer Jeffrey Boro, who added that in Lagacé's case, "it was particularly easy."

That's because police only wanted to monitor Lagacé's metadata – tracking the numbers of all incoming and outgoing calls and texts. They did not want the content of his data, which would require a wire tap.

The latter "is the tool of absolute last resort," Parsons said, and the police would need to go to court instead of seeing a justice of the peace.

"Usually police know which justice to go see if they want to have a liberal interpretation of what it is they want to know," Boro said, adding that justices ask fewer questions and offer up less of a challenge.

"They take advantage of that when they have touchy cases," Boro said of the police.

Criminal defence lawyer Jeffrey Boro says it was 'particularly easy' for police to obtain surveillance warrants in Patrick Lagacé's case. (CBC)
To get the justice they want, police can find out when they're on duty and time their requests accordingly, he added.

"There's a certain familiarity that, let's say, is born between the parties, and the result is a certain laxity," Boro said.

The justice that approved most the surveillance warrants that targeted Lagacé's phone records used to work for the Crown prosecutor, an agency that works closely with the office.

What it really means we need to do is evaluate the existing powers.- Christopher Parson, Citizen Lab

Parsons says Couillard's promise to better protect journalists from surveillance would be "relatively novel," but there are still unanswered questions as to what those protections are.

However, the fact that Montreal police chose to spy on Lagacé in the first place may point to "the cultures that have been built up within policing or security services," Parsons said.

Even CSIS, he said, "tends to place the monitoring of journalists alongside monitoring of academics or monitoring certain government officials, so they're fairly protected."

"The very fact that they were using these very, very invasive tools to monitor where the journalist was going and whom they were speaking with struck me as fairly extraordinary."

With files from CBC's Alison Northcott and Emily Brass