Information & Ethics Committee on June 5th, 2013

[The Chair, NDP, Pierre-Luc Dusseault]

Before handing the floor over those who would like to answer that question, I would recall, as we said at the start of the process, that the legislative clerk is here to answer procedural questions and to determine whether amendments are in order, not to answer questions of a legal nature such as the one just asked. Mr. Butt is in the best position to answer that, since he drafted and moved the amendment. The legislative clerk will not answer that question since it is of a legal nature.

Mr. Butt, do you have something to say?

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

It's pretty clear what it says.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Warkentin, do you want to answer Mr. Andrews' question?

[Chris Warkentin, Conservative, Peace River, AB]

Thank you.

I don't know if I can answer the question of Mr. Andrews directly, but there are two things. Number one, I think we could probably get an official here from the justice department if necessary, if that would be the will of the committee, to answer questions such as those Mr. Andrews asks. That's the first offer. That could possibly happen, I understand.

The second point is that I think the context of what the government seeks to do here is essential. The first thing is to make this amendment, but then it comes shortly before the next amendment, and the next amendment will also help clarify the intent of government.

We believe it's important that all journalists in the country are treated equally, regardless of what institution they serve at. We believe it's important that there be an ability for the taxpayer to find out information that is relevant to taxpayer expenditures and that does not in any way impact the protection of journalistic and confidential sources, so we have proposed this amendment. There will be another amendment, which you have already seen and which will effectively change the process.

Right now, what we propose is a situation by which the corporation can turn down a request for information if they believe that it relates to a source material. If somebody wants to challenge that, they can challenge it in the courts. They will not take it.... If the amendments succeed in collaboration, then it will not go to the Information Commissioner, because we believe that while the Information Commissioner is well versed in a number of things, she's not well versed as it relates to the protection of confidential sources.

So we believe that CBC reporters and Radio-Canada reporters have to have the same rights and the same protections as every other journalist in this country. It has been established all the way up to the Supreme Court of Canada that confidential journalistic sources, in the protection of that, also protect information that would lead one to find out who those folks are, so the issue of activities will be covered in that.

We believe the courts are best suited to protect journalistic integrity and journalistic sources, so we will leave it in the court's hands. The courts that have consistently protected the information from being released. We believe that CBC reporters should be subject to the same system and the same protections as every other reporter in the country, and that is what is proposed with the two amendments.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Andrews, you still have the floor. Do you have any further comments?

[Scott Andrews, Liberal, Avalon, NL]

No.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Warkentin was also on my list.

Just a moment, please. I am told that someone wants to answer Mr. Andrews' question.

[Miguel Bernal-Castillero, Committee Researcher]

Thank you, Mr. Chair.

Mr. Andrews, to your question as to the word “prejudice” in the Access to Information Act, I refer you to sections 14 and 15 of the act. They talk of when a disclosure “could reasonably be expected to be injurious to the conduct by the Government ”, in the case of section 14, and in the case of section 15, “could reasonably be expected to be injurious to the conduct of international affairs”. Similarly, paragraph 16(1)(c), the Access to Information Act talks of “disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada”.

The way the Access to Information Act is currently written doesn't create a prejudice test using the word “prejudice”, but rather an injurious test or an injury-based test where, again, the standards are reasonability and the cause of, in this case, injury. So the wording, as proposed, is different. The Access to Information Act does contain certain, while not identical, rather similar tests.

I hope that helps answer your question.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Angus, you have the floor.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Yes, thank you. I know we were just discussing one motion at a time but my colleague Mr. Warkentin had made reference to the other amendment that is supposed to deal with this. My concern is that the other amendment says specifically it would reveal the identity of any—

[The Chair, NDP, Pierre-Luc Dusseault]

Those principles must be observed. We cannot refer to an amendment that has not yet been moved. It is still up to the Conservatives, who are the sponsors of the amendment, to decide whether to move it. At this point, we cannot refer to an amendment that has not been moved and that has not yet been made public.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Okay, Mr. Chair, it might not be appropriate but it's on the record. If we're going to get through this—and I don't want to spend all night here. But if you limit it to the identity of a journalistic source, you're talking about the name of a person, and that's the problem. Identity of a journalistic source is saying that this is not going to be released. That wouldn't be released anyway.

The problem with this is if we are just saying “source” as a person, then we're not talking about the issue of journalistic activities. I understand what my colleagues are trying to do, but they are creating a very narrow scope. This is not about the journalistic work, it's only about the name. I say the best way to deal with this would be if we just amended the amendment with “to reveal the identity of any journalistic activities”.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Angus, what amendment are you talking about?

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm speaking of the main amendment, but we were told there was a subsequent amendment that would cover off our concerns. In my subsequent amendment, I'm concerned because it identifies a person, not anything to do with what the sources are—

[The Chair, NDP, Pierre-Luc Dusseault]

From what I understand, the amendment you want to amend has not yet been moved. We could wait until later, once we get there, to move a subamendment.

[Charlie Angus, NDP, Timmins—James Bay, ON]

So this is the issue. If we can find a word that ensures that journalists' sources are their activities as well.... This is our issue, the journalistic activities, so that someone can't track where major journalists are going, what they are doing, what story they are on, through all the efforts that these journalists are doing in their day-to-day business of gathering evidence. The name alone is not sufficient. If we could find a word, we'd be very happy.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Andrews, you are still on my list.

[Scott Andrews, Liberal, Avalon, NL]

I just want to thank you for getting that piece of information for us because sometimes, I guess, when we change legislation we're not consistent with the exact wording. That's why I was concerned about having in the first clause, the word “prejudice” when it should probably be “injurious”. I was hoping we could give that some consideration, that's all.

[The Chair, NDP, Pierre-Luc Dusseault]

We go back to Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Chair.

To Mr. Angus's point, the activities are already protected under the bill. The amendment doesn't hope to encapsulate every provision. The word “activities” is already in the bill. Not every protection will be in the amendment. The amendment just goes further to protect. I think you have to read this in the context of the bill. It's there. There are officials who could answer these questions better than I can.

Is there a desire from committee members to have officials from the justice department here to help answer some of these questions?

[The Chair, NDP, Pierre-Luc Dusseault]

If that is the committee's wish, of course, but it must be on the subject of amendment CPC-1. I do not want anyone to talk about the second amendment, to which you have been referring for some time now. If the committee wishes to allow a departmental official here in the room to answer questions, I am at the committee's service.

[Chris Warkentin, Conservative, Peace River, AB]

Do you want the officials here?

[The Chair, NDP, Pierre-Luc Dusseault]

I am told they are already here. That is why I am asking the committee whether it wants to hear them.

[Chris Warkentin, Conservative, Peace River, AB]

They're here? Okay. Pardon me.

[The Chair, NDP, Pierre-Luc Dusseault]

We can invite them to sit down and answer more specific and more technical questions since, from what I understand, the government's amendments were drafted by the Department of Justice.

Does a committee member wish to ask a question? We are still on amendment CPC-1.