Bill C-426 (Historical)

Erik Vanchestein Lawyer, Bar Member, Barreau du Québec

Mr. Chairman and members of the Standing Committee on Justice and Human Rights, I am pleased to appear today on behalf of the Barreau du Québec to discuss Bill C-426. I want to thank the Committee for inviting us to take part in this important discussion.

The Barreau du Québec has had an interest in the question of protection of journalistic sources and journalists' testimony for several decades now. In 1988, in a brief prepared in response to a policy proposal aimed at amending the Loi sur la presse du Québec, the Barreau du Québec suggested provisions intended to set parameters regarding the testimony of journalists, seizures and searches of journalistic materials and also to protect journalistic sources. It supported specific principles: the free flow of information must be ensured by protecting journalistic activity; the public interest justifies the protection of journalists' confidential sources of information; it is in the public interest for justice to be done and material evidence providing for fair resolution of litigation or conclusion of an inquiry to be available.

Consequently, there is a need to seek the appropriate balance between those two sides of the public interest: the free flow of information, on the one hand, and fair resolution of a dispute or conclusion of an investigation or inquiry, on the other. A court would seem to be the only appropriate forum for ensuring that there is that balance.

The Barreau du Québec's recommendations included: maintaining the rule regarding the compellability of journalists, at the same time limiting their testimony to only those cases where they could play a material role and where it had been demonstrated that evidence of the facts could not be secured by other reasonable means.

Another recommendation was to prohibit disclosure of seized journalistic material likely to reveal the identity of a confidential source, even if the content was of material importance, unless it could be established that the public interest required that the source's identity be disclosed.

Finally, it was suggested that a publication/dissemination presumption be established, by means of the simple filing of a journal or video-audio tape, in order to avoid the need for multiple testimony by journalists for the sole purpose of establishing that the information was published or disseminated. We note that the bill tabled by the member for Marc-Aurèle Fortin, Mr. Serge Ménard, reflects the spirit of those recommendations.

Also, in May of 1990, the Barreau du Québec participated in the development and signature of a memorandum of understanding with the Fédération professionnelle des journalistes du Québec, the Fédération nationale des communications and the Conseil de presse du Québec. That MOU laid out a framework for the process, as well as certain principles that the signatories defined as follows:

1. the need for legislative intervention as regards the testimony of journalists and seizure of journalistic material is a function of the public's interest in journalists' retaining access to all sorts of information;

2. it is also in the public's interest that justice be done, that conclusive evidence leading to fair resolution of litigation or the conclusion of an inquiry or investigation be available;

3. it is the journalistic activity, based on which the right to freedom of the press is exercised, rather than the individuals who engage in that activity, that needs to be protected, in order to ensure that the public has access to comprehensive information with respect to all matters on which citizens are asked to express an opinion;

4. it is possible, without granting privileges to journalists who must, like all other members of the public, continue to be compellable witnesses, to pass legislation that preserves the conditions under which a journalist must exercise his or her profession, while at the same time respecting the imperatives associated with the administration of justice.

This MOU contains a legislative proposal that lays out the circumstances in which a journalist's testimony may be used. Some of the points raised are as follows:

1. In the case of testimony dealing with facts gleaned by journalists in carrying out their duties, but which were neither published nor disseminated, such testimony should be limited to only those cases where it is of material importance to the resolution of litigation, or where it has been demonstrated that evidence of the facts cannot be secured by any other means;

3. in the case of testimony involving disclosure of a confidential source of information, journalists should not divulge the identity of the source, even if disclosure is of critical importance to the resolution of litigation, unless the court believes that the public interest requires that the source's identity be revealed: in such cases, the judge will have to render a decision based on both facets of the public interest—namely, resolution of the litigation and freedom of access to the information; in establishing the appropriate balance, the court should also consider all the consequences of the journalist's testimony, particularly for sources themselves, and immediately intervene for the purposes of weighing the two dimensions of the public interest when a party, or the journalist who is being asked to testify as to his or her confidential sources, fails to oppose it.

5. in the case of journalistic material that has already been published or disseminated, that a publication or dissemination presumption be established, through the simple filing of a journal or video audio/tape [...]

Once again, these recommendations are echoed in the proposed provisions of Bill C-426.

The Barreau du Québec believes that this bill fosters the free flow of information, by preserving the right to a fair trial, which are two fundamental rights. Indeed, journalists must be able to freely collect all information that is relevant in conveying news to the public. Also, persons appearing before a court of law are entitled to aduce any and all evidence that allows them to defend themselves.

The bill establishes the principle that journalists cannot be compelled to disclose in court their unpublished documents, unless they are of material importance to resolving litigation or cannot be introduced in evidence by any other means. In cases where the identity of a confidential source is at stake, the judge should ensure that disclosure is in the public interest, considering the outcome of the litigation, the need for the free flow of information, and also the impact on the source of disclosure of his or her identity.

Justice La Forest of the Supreme Court of Canada ruled in Radio-Canada v. Lessard that freedom of the press is critical in a free society and includes the right to disseminate news, information and opinions. Information collection could be seriously hindered in many cases if the government had unreasonably easy access to information in the possession of the media. The press should not be turned into a police investigation service. The fear that police could gain easy access to a reporter's notes could represent a hindrance for the press in terms of information collection.

Therefore, the Barreau du Québec believes that this legislation is an appropriate response to the repeated request made by signatories of the 1990 MOU in terms of providing a legislative solution that would establish appropriate parameters for the use of a journalist's testimony, as well as protecting journalistic sources.

Thank you. We are now available to answer your questions.

Superintendent Jennifer Strachan Acting Director General, Community, Contract and Aboriginal Policing, Royal Canadian Mounted Police

Thank you very much, Mr. Chair and committee members and fellow invitees. I'd like to thank you for the opportunity today to speak before you. My name is Jennifer Strachan, as already mentioned. I'm an RCMP superintendent in charge of operational policy and programs here at national headquarters for the RCMP.

My purpose today is to provide you with information on the RCMP perspective relative to the proposed Bill C-426 related to the protection of journalistic sources.

The RCMP respects the work of professional journalists and understands the importance of protecting sources in certain circumstances. We believe the common law principles currently afforded a journalist in protection of their sources is critical to their profession.

Journalistic standards and practices are not legally binding in the way standards are for doctors and lawyers; however, at least one nationally recognized journalistic organization encourages its practitioners to default always to transparency in their reporting and only resort to withholding sources' names in extraordinary circumstances. RCMP members need to challenge journalistic protection of sources on very rare occasions, and since journalists should resort to confidentiality practices as sparingly as possible, it would appear that problems may not arise very often. With that in mind, it should not be difficult to find ways to avoid working at cross-purposes.

There are several amendments we would like to see that would make the bill clearer and more manageable. I understand the originator of the bill has already proposed amendments to Bill C-426C-426, and we see this as a positive step in finding an acceptable solution to what we consider critical issues.

Strict and clear definitions of terms such as “journalist” and “source” are very important, as these terms could otherwise be interpreted so widely as to hinder normal police investigations. Ambiguity exists in this regard; for example, bloggers encouraging hate crime or underground websites propagating beliefs unacceptable in Canadian society could realistically fall under the current definition.

The protection proposed by this legislation would also extend to anyone who assists a journalist. This could offer protection to people who, for various reasons, should not be given such a privilege.

The RCMP is not in favour of conferring privileges upon journalists that are similar to solicitor-client privileges for lawyers. No other profession, not doctors or priests, has such legislative protection, even though those two groups have complex admission and qualification criteria for anyone seeking accreditation. So far, this kind of professional standard does not exist for journalists, and the bill implicitly seeks to confer a privilege on them that is not recognized by law.

In addition, based on these facts, we must be mindful that legislation of this nature, for journalistic protection, could open the door to other professional groups who might seek similar recognition.

Under the proposed bill, the police would be required to investigate all other sources of potential information prior to considering a search warrant on a journalist's possessions. This broad requirement could compromise public safety and cause undue delay while police attempt to meet the criteria of the bill.

Any impediment to obtaining information about the identity of a perpetrator, such as a journalistic claim to confidentiality, could result in the compromise or destruction of evidence, for example concealment of the whereabouts of potential victims, or further harm to victims.

Victims' rights advocates should be made aware of this bill and the impact upon those they seek to represent. They should also be afforded an opportunity to voice their opinions on potential ramifications.

A further impediment would be the time police would have to go about meeting the proposed bill's burden of proof to obtain this type of information, as already mentioned, in time-sensitive cases. This is one example in which police operations could be affected.

Currently, legislation allows for a balancing of interests between the public, police, and journalists under the Criminal Code of Canada and common law. Justices have the ability to order disclosure where a party can prove that the public interest in disclosure outweighs the public interest in non-disclosure. For these reasons, I would suggest that the clauses pertaining to search warrants be removed or significantly revisited within the bill.

Legislation already exists that addresses seizure and securing of evidence. This includes search warrants, information to obtain and the ability to seal search warrants, as well as reports to justices on evidence seized on form 5.2. Already these processes are very complex and have their own set of rules, and in the past they have been able to manage expectations of the criminal justice system.

The process of filing a return, which is a form 5.2, manages the activities of law enforcement in relation to the execution of search warrants and provides an opportunity for the respondent to contest the detention of items seized. Respondents can also file an application to quash a search warrant.

In addition, as it relates to protection of the interests of a potential source, police agencies do not disclose evidence to the public while investigations are ongoing unless circumstances, such as imminent risk of death or grievous bodily harm, make disclosure necessary. If the police were to obtain information from journalists and were worried that the disclosure of that information would cause harm to their source, it would be handled with the same level of confidentiality as all other evidence.

In a democratic society, the work of the police is work on behalf of the people. Our goal of community safety and security is shared by all law-abiding citizens. Additionally, a journalist strives to serve communities by providing information, warnings, news, and entertainment that improves our quality of life as a society. In fact, we often work together in that regard.

These two sets of objectives are not incompatible. Legislation to clarify those potential instances where conflict could arise and to provide direction for both parties gives us an opportunity to understand how the relationship between the police and journalists can function without undue conflict.

Thank you very much.

D/Chief Clayton Pecknold

Thank you, Mr. Chair and honourable members. Thank you for the opportunity to speak to you today.

Many of you will know that CACP appears before your committee and before the Senate on a wide range of bills. In fact, members of our association have appeared before this committee on several of the bills you have dealt with recently, and so have my colleague and I, as you recall.

This is the first time, to our recollection, that we have appeared before you concerning a private member's bill. We ask that you notice that the CACP is here, because we wish to bring your attention to some quite serious concerns we have with the language of this bill.

Before we comment further, let me state first that the CACP understands the motivation behind Bill C-426. The press and the journalists who operate within that estate are a vital part of a free and democratic society, holding government and its institutions to a high degree of accountability and public scrutiny.

We in the policing community know very well the importance of public accountability and the service provided to our citizens by the media. Clearly, to do that job effectively, journalists must work free from political or other interference. It is important to state at the outset that the police community does not object to the principle of journalist privilege. It is in fact currently recognized in this country as a common law principle.

Yet it is also important to note that the codification of such a privilege should be suited to address precisely that privilege and not used to potentially shield illegal communications or documents from legitimate law enforcement investigations and prosecutions and thus ultimately discredit the very values it is meant to protect.

As the committee knows very well, however, in most aspects of our society and the legal framework under which we live, there's a need to find the appropriate balance between the rights and powers of one institution or activity as against those of the other. Drafters of legislation and you, honourable members, must carefully weigh that balance when you bring laws forward into legislation.

In this case, with respect, some important modifications to this bill are needed before it meets that test. Permit me to elaborate after making two general points.

Our association notes that to date the courts and legislators have declined to add to the class privileges afforded to, for example, solicitor-client communications and informant privilege. In our view, that decision should be formulated after the appropriate level of public policy consultation and debate. That has not occurred in this case, and in our estimation it should. There has been insufficient debate, and we would urge you to consider affording that opportunity.

The second general point is that we believe the bill as presently drafted attracts a series of unintended consequences. Some of the language is overly broad, imprecise, and ambiguous and may therefore become a hindrance to the effective administration of justice. Such a result, in our respectful submission, defeats the balance of interest that you, honourable members, must so carefully maintain. That is the balance between the public good of a free and vigorous press and the equally important public good of an effective criminal justice system.

As stated, we believe the intention behind the bill is to facilitate true journalism and all of the public good that comes from a free press. In order to achieve that goal, it is important firstly that the bill aim at true journalism. Today many persons, especially by using the Internet, may be called journalists or “the press” because they disseminate information to the public, yet may not merit the journalist's confidential source privilege. Many websites promoting racism, hate, or drug cultivation, for instance, would qualify under the notion that they're engaged in the dissemination of information to the public, yet would the average Canadian call them journalists?

Since this bill purports to do that which the courts presently determine on a case-by-case basis, the wording and definitions within it are crucial. Some jurisdictions where similar laws have been enacted have chosen to provide a definition, while others refer to notions of profession, gain, or employment as a way of putting appropriate boundaries around who might be considered a journalist and therefore be entitled to assert the privilege. We acknowledge the amendment suggested yesterday by the proponents of this bill as being a step in that direction.

In addition, we also respectfully submit that it should be made very clear that illegal documents or communications are excluded from the application of the act. As the Ontario Court of Appeal very recently said in the case of the National Post:

Although, in pursuit of their constitutional right to gather and disseminate the news, journalists are entitled to protect their sources, that entitlement loses much of its force when journalists use it to protect the identity of a potential criminal or to conceal possible evidence of a crime.

As the court said, the press, like anyone else, should have an interest in seeing that crimes are investigated and prosecuted. Society expects as much. Instead of furthering that interest, however, the respondents, in that case, were shielding a potential wrongdoer from prosecution for a serious crime by refusing to deliver to the authorities the items representing the actual actus reus of the offence. But again, we notice that the proponent of the bill wants to introduce what we understand to be a crime exception, and we submit that such an amendment is very necessary.

Furthermore, we think the recent decision in the National Post case shows that the case-by-case approach works very well in Canada. If, however, the intent of this legislative body is to codify the recognition of journalistic privilege, we see no necessity to introduce a complete class privilege, or a de facto class privilege, by reversing the burden of proof as found in proposed subsection 39.1(6) of the bill.

Permit me, if you will, to summarize a few points. First and foremost, the CACP believes the present state of the law as most recently applied in the National Post case applies the appropriate balance between the state's legitimate need for effective public security and an unfettered and free press. This means that the present application of a journalistic source privilege is being applied appropriately on a case-by-case basis. The law, in our respectful submission, is working well.

Secondly, if it is the intention to codify the present state of the law and not to extend the class of privilege, the bill as presently drafted should be improved in order to meet this aim. Any intention to create a new class of privilege must, in our view, be done after a much more enhanced period of public debate and consultation.

Thirdly, in order to avoid unintended and detrimental consequences, some amendments to the language are required. As stated, the definition of who's a journalist needs refinement; as well, some language that clearly states that unlawful communications or when the communication constitutes the actus reus of an unlawful act—for example, child pornography or hate-promoting communications—cannot be privileged, or where the journalist is engaged in illegal activity, for example, as a co-conspirator, and receives information from a source in furtherance of an unlawful activity. We note that while this might be implied by the common law, as it is with solicitor-client privilege, solicitor-client privilege as applied to the criminal law is created by the common law, so the common law exclusions clearly apply. It is much less clear that common law exclusions would automatically apply to a statute-based journalist privilege, unless clearly stated so in the statute.

Clearly, the goal behind the bill is laudable. The effect of the bill, though, and the imprecision of some of the drafting leaves those laudable goals in peril. We believe journalists may also share our concern. They too have an interest in protecting the integrity of their profession from the stain of hate-mongers or child pornographers, hiding behind the cloak of a claim of privilege that the courts, you honourable members, and our fellow Canadians neither sought nor wished to grant them.

Thank you. Those are my remarks.

Mr. Pichette will now make some closing remarks.

Pierre-Paul Pichette Assistant Director, Corporate Operations Services, City of Montreal Police Service

Mr. Chairman and honourable members of the Committee, my name is Pierre-Paul Pichette and I am Assistant Director of the Montreal Police Service. As you just noted, I am accompanied today by Mr. Clayton Pecknold. We appear before you today representing the Canadian Association of Chiefs of Police, as both of us are Vice-Chairs of the organization's Legislative Amendment Committee. I also want to take this opportunity to convey the greetings of our President, Mr. Steven Chabot, who is the Assistant Director General of the Sûreté du Québec.

The Canadian Association of Chiefs of Police represents the management of police and law enforcement agencies in Canada. Ninety per cent of its members are directors, assistant directors or other senior managers of various Canadian police services, both at the municipal and federal levels. Our association's mission is to promote the effective enforcement of Canadian and provincial laws and regulations to ensure the safety of all Canadians.

In that context, we are regularly called on to take a position on legislative reforms that are contemplated. Indeed, we have always been enthusiastic participants in consultations organized by government with respect to changes in the criminal law, just as we are doing today.

I am going to turn it over now to my colleague, Mr. Pecknold, to present our position on Bill C-426. Mr. Pecknold will make his presentation in English. After that, I will have some closing remarks.

Lieutenant-Colonel Jill Wry Director of Law, Military Justice, Policy and Research, Office of the Judge Advocate General, Department of National Defence

Thank you, Mr. Chair and honourable committee members. It's my pleasure to speak to you today about the amendments in Bill C-426, and particularly to explain some of the practical impacts those proposed amendments would have on the Canadian Forces.

I would like to make it very clear that it's not my purpose today to question the importance of the legislation or the importance of the amendments that have been proposed, but to ensure that members of the committee are aware of some potential implications the proposed amendments have on the Canadian Forces and the Canadian military justice system. If I could classify this information, I would put it in the category that my friend Mr. Hawkes has--as unintended consequences of the proposed amendments.

First of all, as you know, the definition of journalist is defined in the proposed legislation to include any “person who contributes regularly and directly to the gathering, writing, production or dissemination of information for the public through any media, or anyone who assists such a person”.

As it's currently worded, this definition would apply to members of the Canadian Forces who are involved in activities that are not journalistic in nature. This would include members whose primary duties involve the gathering and dissemination of information to the public, such as public affairs officers. As well, the definition would include members who make regular contributions to Canadian Forces publications for the purpose of raising awareness on topical issues such as military personnel policies and information on compensation and benefits. Furthermore, anyone who provides assistance to those who gather and disseminate this type of information, such as computer technicians or administrative clerks, would also be covered by the definition.

The potential impact of having the definition of journalist apply to Canadian Forces members arises from the conflict that could emerge between the protections proposed under this bill and the obligation on military members to report breaches of discipline. Military regulations require members of the Canadian Forces to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders, and instructions governing conduct. Given the broad definition proposed for journalists, there is a real potential that conflicts will arise.

Second, as you are aware, the proposed amendments will apply not only to judicial proceedings but also to non-judicial proceedings over which Parliament has jurisdiction. Under the National Defence Act, that would include boards of inquiry, which can be held both in and outside of Canada. According to the proposed amendments, in order to compel journalists to disclose the identity of a source during a non-judicial proceeding such as a board of inquiry, it would be necessary to adjourn the proceeding and seek a judicial order. The potential logistical impact of this requirement is compounded by both the breadth of who can be considered a journalist, if the present definition is maintained, as well as the fact that boards of inquiry can proceed outside of Canada. There would be a requirement to seek an order back in Canada in order to proceed with that inquiry.

Furthermore, when determining whether it is in the public interest to compel the disclosure of a source, a judge is required under proposed paragraph 39.1(5)(b) to consider three factors, which have already been discussed: the outcome of the litigation, the freedom of information, and the impact of the journalist's testimony on the source.

The narrow construction of these factors would make it difficult to apply them in the context of a non-judicial proceeding, such as a board of inquiry, which is an investigative tool, not a tool for litigation, or to consider other potentially relevant factors, such as operational or national security, which would be very relevant in the types of non-judicial proceedings that could arise in the context of the Canadian Forces.

Honourable committee members, I would like to thank you for allowing me this opportunity to raise these practical matters with you. I'd be very happy to answer any questions you may have.

Thank you.