It is increasingly clear that the unjustifiable surveillance of journalists in Quebec has a great deal to do with the reckless rubber-stamping of electronic search warrants by juges de paix magistrats, all-powerful justices of the peace who can hand down search warrants, arrest warrants and seizure orders, and order the detention of suspects.
These practices came to light as an accidental result of the Montreal Police Service investigating one of its own officers.
Of course, there is nothing wrong with that, in itself. An informant believed that an officer named Fayçal Djelidi, who had been in the force for 16 years, was up to all sorts of things. He appeared to be not only a habitué of erotic massage parlours, but also seemed to be writing misleading police reports and planting evidence of heroin on his victims – perhaps with the intention of trying to get suspects to confess to crimes and so get praise and promotion from his superiors.
Eventually, the MPS began to investigate Mr. Djelidi. Quite properly, the police force applied to a juge de paix magistrat for search warrants.
But soon the justice in question started to become quite casual about granting surveillance warrants related to people who had only the most tenuous connections to the actual investigation.
The key to this expanding mess is that many justices of the peace in Quebec are retired Crown prosecutors. They have an understandable but foolish inclination to give all sorts of search warrants to their own successors in the prosecuting trade.
This practice was an accident waiting to happen. The lesson is that the job of juge de paix magistrat should not be a paid retirement activity for prosecutors and other government employees whose impartiality can be subject to question.
In the case of Mr. Djelidi, the justices of the peace granted warrants to investigate anyone in an expanding group of more or less tenuous acquaintances of the suspect. These included Quebec journalists.
It might have occurred to the Montreal police force, and to at least some of the justices of the peace, that reporters and columnists talk to all sorts of people, for all sorts of reasons, not just to criminals, or to cops who may have gone bad.
Patrick Lagacé is both a reporter and a columnist, very well known in Quebec. He writes for the highly respectable La Presse. He has spoken from time to time to Mr. Djelidi, but he hadn't talked to Mr. Djelidi about any troubles he might have been having with the Montreal Police Service itself.
Nonetheless, the justices of the peace uncritically granted police electronic search warrants on Mr. Lagacé, just as if the La Presse columnist was an accomplice of Mr. Djelidi. The warrants were remarkably thorough. There was even an order to track Mr. Lagacé's movements, using GPS, and to listen to his conversations with other people, including his colleagues at La Presse. The Montreal Police Service, not surprisingly, didn't learn anything.
When the surveillance of Mr. Lagacé came to light, La Presse was right to take legal action, and other media organizations, including The Globe and Mail, took part. In due course, the court ordered the warrants unsealed. No media conspiracy emerged, and nothing to indicate there was an effort to protect Mr. Djelidi or anyone else.
Trivial conversations were recorded. For example, Mr. Lagacé's communication with one of his colleagues about getting together during the holidays were recorded, as if this were a conspiracy.
As these facts emerged from the Montreal Police Service, it turned out that the provincial police force, the Sûreté du Québec, had been doing much the same pointless things – or perhaps worse. Seven other journalists in Quebec had been surveilled, on similarly flimsy grounds in unrelated cases.
The response to these revelations by government officials has been sensible – except perhaps for a certain surplus of overlapping proposed inquiries at various levels of jurisdiction. One worthwhile idea, recently raised in the Senate, is that journalists should have legal protection under federal evidence law from frivolous search warrants, on the ground that journalists help protect the public.
But the essence of the whole matter is that search warrants should be issued by justices of the peace if – and only if – there is real evidence of a serious offence. There should not be fishing expeditions, or put it another way, rabbit holes to be delved into, just in case something sinister might turn up.
Quebec's juges de paix magistrats, who are appointed for life, need to think carefully about the important power they exercise. They should not be biased by a prosecutorial mentality, and they should not routinely be former prosecutors and government officials, as has been the case for a decade. Much of the recent overreach could be solved simply by making better appointments to this important office in the first place.