Bill C-426 (Historical)

An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants)

Canada Evidence Act

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

moved that Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants), be read the second time and referred to a committee.

Mr. Speaker, it must be quite something for individual members to have to select the topic of their private members' bills. Mine has to do with a concern I have ever since the late 1960s. As a young lawyer at the time, I witnessed the birth of the Quebec Federation of Professional Journalists. I had friends who were journalists and I was called upon, as a lawyer, to sort out many problems between journalists and the police.

At that time, we came to the conclusion that it would be great if there were legislation. Since then, we have had section 2(b) of the Canadian Charter of Rights and Freedoms guarantee the freedom of the press and other media of communication. In addition, the case law has evolved toward providing some protection. I think that the bill I have introduced is fitting a lot of case law in just two and a half pages. The sad reality is that the problem is still a current one. It happens all the time. It may not be as newsworthy as other items, but unfortunately there is still a problem.

The first broad principle we must understand is that this is not a question of giving journalists privileges; it is a question of protecting a journalistic activity that is for the common good and that enables people who are witnesses to breaches of trust or great injustices to direct investigative journalists toward sources of information or evidence of breaches of trust. The journalists will then write their articles based on that information.

The bill is also an attempt to protect another broad principle: that journalists must not be perceived as auxiliary police. In too many criminal cases, there have been attempts to use information that journalists have gathered, with harmful effects, because then demonstrators, for example, attack the journalists. In fact, several camera operators have had rocks thrown at them at demonstrations.

While the content of the bill is very brief, it addresses four major subjects. First, there is protection of journalistic sources. Sources request confidentiality because, if they are revealed, they could suffer reprisals, sometimes actual physical reprisals, and often economic.

Second, it establishes the principle that use of material that journalists have gathered but not published will be the exception. This involves various cases where confidentiality has been requested, but it is still important for journalists not to be perceived as auxiliary police. As well, it provides for search warrants to be issued in exceptional cases, and we will see the requirements that must be met. It also provides for how the search is to be conducted, once it has been begun. And I also decided to solve one small problem by offering a way in which publication can be easily proved. A publication has been published, and it seems to me that it can be proved by producing it in evidence.

As well, it obviously provides for the necessary exceptions: first, to prevent easy defamation through bad influence by a malicious source, and second, to reconcile these principles with the state’s interest so that an investigation can be carried out and crimes punished.

This bill is therefore based on the importance of freedom of information in a democratic society. Because this is a value of a democratic society, and not a privilege, we will also see that it provides that the judge may raise the question on his or her own initiative.

First, the bill uses the definition of the word “record” found in the Access to Information Act, because it is the broadest definition found in our legislation and it is also used in numerous other laws. The bill also relates to the Canada Evidence Act. Obviously, we are legislating only in relation to federal matters and this bill applies to federal matters.

Then it defines the word “journalist”. The definition is broad, but also contains restrictions, as we will see. A journalist is a 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.

Thus, we cannot act as a journalist one day and spread slander. No, it would have to be a regular contribution.

The definition of media is broad. It includes blogs, with the exception of occasional blogs, and includes those written for the public on a regular basis.

Subsection 3 establishes the principle that a journalist has the right to refuse to disclose a confidential source. As I said earlier, this is a principle of public interest and not a privilege given to journalists. If judges notice a problem of that nature, they can raise the issue themselves.

Subsection 5 talks about the inevitable exception. However, it is very limited and intended to protect public interest. Thus, a judge “may not order a journalist to disclose to a person the source of any information that the journalist has gathered, written, produced or disseminated for the public through any media, unless the judge considers that:”

First of all, the person who is requesting the disclosure has done everything in the person’s power to discover the source of the information through other means. The disclosure is in the public interest, and the judge must consider three principles: the outcome of the litigation, and therefore the importance of this case for the outcome of the litigation; the freedom of information, and thus the impact it could have on how easy it is for journalists to obtain information; and the impact of the journalist’s testimony on the source.

All of these provisions were based on current case law. The burden of proof falls to whoever requests the disclosure. They must prove that the disclosure is necessary.

Let us now move on to subsection 7. We are not talking about records with a confidential source, but notes that journalists have decided not to publish. This is done simply to establish the principle that journalists must not be seen as working on behalf of the state. If they decide to not publish something, then before searching for their personal notes, we must ensure that it is really necessary to do so and that other means have been attempted to obtain them. Television cameras are not police cameras and must not be perceived as such.

A judge must meet very strict conditions for issuing a warrant. When we read them, we realize the importance of these conditions. What is quite important, among other things, is that there must be a supporting affidavit enabling the judge to properly consider all the circumstances in order to determine if the applicable conditions are met.

Obviously, the judge must provide the conditions for the search to ensure that the media are not unduly prevented from publishing the information. The search must not interfere with their work.

Once the warrant is provided, the way in which the search is to be conducted is indicated. It must not be unreasonably conducted. Once again, I refer to jurisprudence. Given that a decision will have to be made on whether the information is public or secret, every document must be sealed immediately.

I have added something that I believe may be useful, that before sealing documents, the police involved in a search must obtain information.

To fully respect the principle that documents must not be disclosed before a judge has ruled to that effect, I establish this principle, namely that anyone who participates in seizing a document must keep its contents confidential, unless otherwise instructed by the judge at a later date.

Finally, the fourth part is to ensure, since we are amending the Canada Evidence Act to make it easier to produce a publication in evidence, that it is not necessary to summons the editor in chief or anyone else at the newspaper. If it is published, it is published and one only has to produce it. That is established by subsection 11.

The bill is a distillation but what purpose does it serve?

That is what I was told by one of the experts I consulted. Instead of citing 1,000 or 2,000 pages of jurisprudence, instead of identifying majority and minority judges and so on, this piece of legislation—which respects the principles of jurisprudence—is only two and a half pages long. That makes it a very useful, practical tool. It is useful to police officers because it tells them the requirements that must be met before seeking a search warrant. It also helps them execute search warrants. All of these rules exist in the many long pages of the jurisprudence. The bill will also be useful to justices of the peace who issue search warrants. Before publishing search warrants, justices will consult this short piece of legislation and know exactly what to do. It will also be useful to the media and journalists who can read it to find out how they are protected.

It should be noted that this is just a federal law. Therefore, it does not apply to civil matters. It does, however, cover police relations. In the past, this is what caused the most problems. I am sure that it will also influence civil law because it is inspired by paragraph 2(b) of the Canadian Charter of Rights and Freedoms, which also applies to civil legislation. It therefore affects civil law. Given that the principles underlying this act summarize the jurisprudence related to paragraph 2(b), judges in the civil law system will certainly look to it for inspiration.

Once again, it is important to understand that this is not a privilege for journalists. This does not release them from their civil obligation to not engage in gratuitous defamation. Journalists will have to use independently gathered evidence to decide whether to expose and disseminate what they have learned. The source must remain anonymous to avoid reprisals. In so doing, the paper or other medium the journalist works for that publishes findings assumes full civil responsibility for any damage resulting from false or defamatory information. To comply with their civil obligations, the media must be able to present a defence based on public interest and truth.

I had a lot of help drafting this bill. First, I was inspired by current jurisprudence on this issue, which I deal with as a hobby. In fact, I practised criminal law, but I have been interested in this issue since the end of the 1960s. I also relied on the work of the Fédération professionnelle des journalistes du Québec, including a remarkable study by Marie-Claude Pednault. I was also inspired by the memorandum of understanding in Quebec between the justice department, the bar and the Fédération professionnelle des journalistes du Québec. I consulted legislation in Belgium, France, Sweden and a number of other countries. I read jurisprudence in the European Court of Human Rights.

This bill is short, but, for those who are going to read it, it is dense. It was not scribbled down quickly on a napkin. I also consulted a number of expert lawyers and information law professors. I think this piece of legislation fills a need and it will be useful.

By the way, the United States has 32 laws on this very mater. This bill is consistent with the line of thinking in democratic countries that recognize the fact that in the society we live in, it is in the public's interest for some people with information about corruption or gross injustices to be able to turn to journalists and direct them in their investigations. Then, when there are legal debates and the crux of the debate is not on the defence of the corruption for which there is evidence, but on the knowledge of who provided the information, the judge will be able to refuse in order to protect the source.

Allow me to cite Justice Cory, in one of the cases that inspired me:

Freedom of the press is vital to a free society and comprises the right to disseminate news, information and beliefs. The gathering of information could in many circumstances be seriously inhibited, if government had too ready access to information in the hands of the media. The press should not be turned into an investigative arm of the police. Thus, the fear that the police can easily gain access to a reporter's notes could well hamper the ability of the press to gather information.

As you can see, this truly is an issue that raises extremely important principles of democracy.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I am honoured to ask my former minister a question. He was the public safety minister in the Quebec government when I was deputy commissioner for police ethics for the province of Quebec.

My question has to do with the definition of journalist. I would like to know if a definition already exists in any legislation in Canada, either federally or provincially, or if there is any case law that establishes the definition of a journalist.

I must admit, although I am in favour of this bill—and I intend to recommend that my caucus support it and refer it to committee—we have some concerns nonetheless. The definition of journalist, as written in the bill, is rather broad and could even include the distributor or printer of a document produced by a journalist.

I would like to hear the hon. member's response to this.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, that is a very good question that deserves a good answer and I will be quick to provide it.

There are several definitions for the term “journalist”. That was the most succinct one that I found. However, there is also an extremely important fact to be considered when we state: “anyone who assists such a person”. The idea is that if someone cannot obtain the information from the journalist, they may turn to the printer.

It is very important to protect the individuals who work with the journalist and who, through their jobs, as humble as they may be, may have knowledge of a secret source. These individuals may have seen, for example, notes on the journalist's desk or have information required for printing the newspaper.

Rather than considering each individual case—and I must admit that sometimes we found some expressions to be somewhat ridiculous—we opted for the expression, “anyone who assists such a person”. By accepting the rules of interpretation, namely that the words must always serve the obvious purpose of the law, this purpose must be to protect the source that could suffer retaliation if their name were to be disclosed, even by the housekeeper. In fact, the latter could have learned certain things by listening to a conversation between two people at some point.

Thus, we speak of any individual who works with the business and who would have access to these names. I believe that is how the courts would interpret it. That is why we decided to use this very simple expression which, when interpreted thus, is clear in concrete cases.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, I thank the member for introducing this important bill. It is certainly high time for it. I will speak directly to the bill later, but my first question is with regard to the blogosphere. The hon. member mentioned the not occasional bloggers and then referred to proposed subsection 39.1(1) that provides the definition of “journalist”, stating:

“journalist” means a person who contributes regularly and directly to the gathering, writing, production or dissemination....

I wondered if in this opening discussion of the bill the member would expand a little on how he sees this applying to the world of blogs in a positive way as well as any concerns he has identified that he might be hoping the committee would deal with at committee level should the bill pass in this place.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, perhaps I was a little hasty in using the word “blog”. Basically, in the definition, I was trying to anticipate the world in which we will probably live and in which there will be electronic journals. Furthermore, I sought the advice of computer experts on this. And it has already begun. There are people who keep blogs on a regular basis.

We believe that by applying the spirit of this definition to people who write, film or record, the expression of a person “who contributes regularly and directly to the gathering, writing, production or dissemination of information ...” is broad enough to include people who keep electronic journals or who already have real journals.

However, this will not apply to anyone who decides one day to start a blog, seek out their source and begin to slander. No—

[The Deputy Speaker, Bill Blaikie]

The member for Crowfoot has the floor.

[Kevin Sorenson, Conservative, Crowfoot, AB]

Mr. Speaker, it is a pleasure to rise in the House and speak to Bill C-426.

I doubt that there is any Canadian who would argue with the statement that freedom of speech and freedom of the press are not two cornerstones of a free and democratic society. I think all would agree with the statement that they are imperative.

In fact, subsection 2(b) of the Canadian Charter of Rights and Freedoms provides a specific constitutional right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

In consideration of Bill C-426, I think that it is important to first summarize the main components of the bill and then determine whether they are an improvement on the current law that we have in the country today. In other words, are there limitations in the current law that threaten freedom of the press and if so, do the provisions that Bill C-426 brings forward address these gaps? If no such limitation exists, then Bill C-426 may be unnecessary.

I would like to begin with a summary of the primary components of Bill C-426. The bill has three main components. The first is a statutory protection that prohibits a journalist from being compelled to disclose the source of information supplied to the journalist. Although not totally clear in the bill, this appears to be a protection from testimonial compulsion when the journalist becomes a witness in a case.

This protection, however, is not absolute. It is subject to a more general provision that expressly prohibits a judge from making an order forcing the journalist to disclose an information source unless the judge is satisfied that certain tests are met.

The difficulty with the two sections being in the same provision is that the first section addresses the journalist as a witness and the second section is all encompassing. It does not matter whether the journalist is a witness or not. This means that it is not clear which section applies and in which circumstance it applies.

A second component of Bill C-426 protects a journalist from having to disclose unpublished information only if the material is of “vital importance” and it cannot be produced in evidence by any other means.

The problem with the bill is that vital importance is not defined. What do we mean by vital importance? Also, the section refers to unpublished information that is produced as evidence. What if the information that is brought forward does not become evidence in the case? Is it still protected? This provision in this bill does not make that clear.

The final component of the bill creates restrictions on the ability of a judge to issue a search warrant to seize information in the possession of the journalist. The reference to a judge is curious in view of the fact that search warrants are usually issued by a justice, defined in the Criminal Code to be a justice of the peace or a provincial court judge. It is not clear whether the reference to a judge is intended to remove this discretion from what the Criminal Code lists as being a justice of the peace or a court judge.

The issuance of search warrants by judicial officers, usually justices, has been considered by the courts. The Supreme Court of Canada has expressively stated:

The privacy interests of individuals in a democratic society must be carefully weighed in a search warrant application against the interests of the state in investigating and prosecuting crimes.

The Supreme Court has also stated that even if the statutory requirements for issuing a search warrant have been met, where the premises to be searched are those of the media, the justice must exercise his or her discretion to determine whether a warrant is actually necessary.

Where a warrant is justified, the courts have directed that the justice must consider the conditions that may be attached to the warrant to ensure that any disruption of the gathering and dissemination of the news is limited as much as possible.

The Supreme Court of Canada has clearly said that a number of factors should be taken into consideration when a justice is exercising his or her discretion to issue a search warrant to seize documents in the possession of the press. The weight given to the various factors varies depending on the facts.

The courts have recognized that where the police seek to obtain a search warrant to retrieve materials in the possession of a journalist that carry a high expectation of privacy, for example, handwritten notes or information jotted down in a scribbler, the justice exercising his or her discretion as to whether to issue the warrant should consider factors that may not be relevant in other circumstances.

One such factor is whether reasonable efforts have been made by the police to obtain the information from other sources. The courts have recognized that a fear that the police can easily gain access to a reporter's notes could hamper the ability of the press to gather that information, to hold onto that information.

There are many examples to illustrate the fact that there is no one size fits all approach to determining whether a search warrant should be issued in particular circumstances involving the press, and if so, what conditions should be attached to the warrant. Each case is considered having regard to the particular facts before the judge.

I suggest that this case by case approach is a very effective way to ensure that an appropriate balance is struck between freedom of the press and the state interest in investigating and prosecuting crime.

In contrast to this approach, Bill C-426 sets out a set of mandatory statutory requirements that must be met in each and every case before a search warrant can be issued. In my view, there is a risk that this makes the law too rigid. I also think that there are two other serious problems with Bill C-426: first, is the very broad definition of a journalist; and second, is the absence of a definition or qualification on what type of information is protected by the bill.

In the bill, a journalist is defined as:

--a 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.

The concern that I have with this definition is that it is so broad, it captures persons it was not clearly intended to include. Even my Liberal colleague from across the way questioned who then would be qualified, who would be listed as a journalist, so I think this particular aspect of the bill is a concern to all parties.

For example, the definition applies not only to persons engaged in journalistic activities, but also to teenagers who are daily bloggers on the Internet. They could be listed as journalists in those cases. The technician at the television station who repairs the computers used by journalists also technically falls within the definition of a journalist. I cannot imagine that the intent of Bill C-426 was to extend statutory protection to the activities of these individuals.

A further problem is that the bill does not define or qualify what kind of information in the possession of a journalist attracts the protection of the search warrant provision. The section is cast so broadly that it could include information that has absolutely nothing to do with the journalist's activity, for example, phone bills or other things.

The section also does not distinguish between information that journalists collect during their work and information relevant to a criminal investigation involving the journalist as a target.

In conclusion, I submit that it is not clear at all that there are any limitations in the current law that need to be addressed. I think the current law does a very good job of achieving the delicate balance between freedom of the press and the state interest in the investigation of the crime. The current law takes a principled approach that is sufficiently flexible to address a wide variety of fact situations.

I am also concerned that there are some serious problems with many of the provisions in Bill C-426. A number of these problems are sufficiently serious that, not only would they not achieve the policy objective of the bill, but they would create considerable uncertainty about the state of the law.

I am pleased to have had the opportunity today to bring forward in this place some of the concerns we have with this private members' bill. I want to thank the official opposition for addressing some of those concerns in their questions.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, as I mentioned earlier when I addressed my question to my colleague from the Bloc, the member for the riding of Marc-Aurèle-Fortin, I am very happy to speak in favour of his bill. I will be brief. Perhaps not as brief as you would like, but I will try.

Bill C-426, as the member for Marc-Aurèle-Fortin mentioned seeks to amend the Canada Evidence Act to protect the confidentiality of journalistic sources and the freedom of the press. It would also add a new clause to the Canada Evidence Act that would allow journalists who appear before a court to refuse to disclose information or a record that has not been published unless it is of vital importance and cannot be produced in evidence by any other means.

In addition, the new clause establishes specific conditions that must be met for a judge to issue a search warrant to obtain information or records that a journalist possesses. The bill stipulates the manner in which a search must be conducted.

Bill C-426 also allows journalists to refuse to disclose the source of the information that they gather, write, produce or disseminate to the public through any media, and to refuse to disclose any information or document that could identify a source.

Under the bill, a judge could only order a journalist to disclose the source of the information if the judge considers it to be in the public interest, having regard to the outcome of the litigation, the freedom of information and the impact of the journalist’s testimony on the source.

At present, as the member for Marc-Aurèle-Fortin stated, journalistic freedom is protected by provision 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression, including freedom of the press. However, there is no legislative measure in Canada that allows a journalist to refuse to disclose a source.

Many lower courts in the country have adopted diverging points of view on this question. They generally rule that even though disclosure of a journalistic source could harm the parties concerned, it is often more important to disclose the information before a court. They generally hesitate to compel journalists to reveal information obtained from a source on a confidential basis. Canadian courts follow the precedence established by the decision rendered by a court in Great Britain in the case of the Attorney General vs Mulholland, which states that journalists should not be required to disclose information provided by a source on a confidential basis unless the petitioner can show that the information is relevant and necessary to the conclusion of a case.

As I said in my question for the member for Marc-Aurèle-Fortin, the definition of “journalist” seems pretty broad to me. He suggested a few ways to resolve this, and I am looking forward to discussing this in committee. In fact, that is why I plan to vote in favour of this bill at second reading and why I am recommending that my Liberal colleagues support this bill.

I would like to raise a few points concerning weaknesses in some parts of the English version of the text. I simply wish to clarify this in the hope that, with the support of other members, my colleague will allow some amendments to be made in committee. Paragraph 39.1(7) reads as follows:

A journalist is required to disclose information or a record that has not been published only if the information or record is of vital importance and cannot be produced in evidence by any other means.

The English version of the bill refers to “vital importance”, while the French version refers to “importance déterminante”.

I should point out that the French version of the text provides a much more concise definition of the conditions required for such disclosure. For example, the word “déterminante” refers, I suppose, to the determination of the case, whereas in English, “vital importance” is very vague and much broader. Therefore, I think we need to find another English expression that makes the English version as clear as the French one.

Next, in the introductory paragraph to paragraph 39.1(8), the English text is poorly written.

It would make the subsection much clearer if the term “if” was replaced by “unless”.

The English text also refers to a search that is “unreasonably conducted”. This is a very broad term that has no precise meaning. I have been unable to find any kind of definition that is provided through jurisprudence on this.

Whereas the French version of the bill which refers to “effectuée de façon abusive” is much clearer and there is an abundance of jurisprudence that actually defines what an abusive search would be. We could be using our legislative drafters and experts in committee in order to tighten up the English text.

Subsection 39.1(9) states: “Any record seized...shall be sealed right away and opened only before a judge who shall determine the manner in which the record is to be kept and disclosed.”. In this subsection the English “right away” should be changed or replaced by the term “immediately”. “Right away” is not a term that we would use in legislation. Those are just a couple of examples.

One of the cases obviously that raised this as an issue with the member for Marc-Aurèle-Fortin was the O'Neill v. Canada which made a lot of headlines and received a lot of attention.

As the member knows, it was challenged constitutionally and section 4 of the Security of Information Act was struck down through a court decision, but the act has yet to be amended. Therefore, I would suggest that the member may wish to agree to an amendment which would go beyond the scope of his bill that would include amendments to the Security of Information Act. Given that it is his bill, he could accept the amendment or not.

In the case of O'Neill vs. Canada, the Ontario Superior Court judge struck down paragraph 4(1)(a), subsection 4(3), and paragraph 4(4)(b) of the Security of Information Act as violations of section 7: the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice and subsection 2(b).

Justice Ratushny held that these subsections were over-broad, arbitrary, and vague and gave the government an unfettered ability to protect whatever information it chose to classify as unauthorized for disclosure and to punish any violation by way of a criminal offence. Therefore, the relevant subsections were declared of no force and effect.

[The Deputy Speaker, Bill Blaikie]

Order, please. I am sorry to interrupt the hon. member but there are only 10 minutes allotted for everyone.

The hon. member for Hamilton Centre.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, I appreciate the opportunity to join in the debate. I want to thank the hon. member for Marc-Aurèle-Fortin for bringing this forward. At the end of the day it would be nice to see unanimous support for this bill.

Quite frankly, this should be seen as complex, yes, but controversial, no. The issue should be motherhood in terms of whether we believe as a nation that we have laws that will protect the freedom of the press and, in this case, the specific part of it that relates to releasing confidential information, information that a reporter, during the course of his or her duties, has given such commitment and whether the law and the courts would have the right to force a reporter to divulge it.

We have had a couple of very clear examples in Canada. One of them happened in my own home town of Hamilton. All members and many people watching would be familiar with the reporter from the Ottawa Citizen, Juliet O'Neill. I believe the case has already been mentioned during the debates and we know what happened. We now have the benefit of 20/20 hindsight.

When we look back, now that we know exactly what happened, it is actually a bit of a stain on this country that this process took place. Police not only went through her office but they went to her home. I just want to make this as personal as possible because at the end of the day this person was looking at armed officers at her door carrying out the duties that the court had ordered. What it meant was that they were going through her underwear drawer.

Given the incredibly historic importance of the Maher Arar case, where was Canada? Where was our Charter of Rights? Where were the words that sound good about protection and the individual rights and freedoms that Canadians have under the Constitution for journalists and freedom of the press? Where was all of that? The speeches do not matter much if, when the rubber hits the road, the protection is not there for individual Canadians.

That is why I again want to thank my colleague, who I have known for quite some time. I said before that we had the opportunity, when we were both the respective solicitors general of our provinces, to work together on both provincial and national matters. I am not the least bit surprised that when we are talking about rights, it would be the hon. member for Marc-Aurèle-Fortin who stepped up and put this important legislation forward. I honour him for that. This is very good.

The other case I want to mention is the one of Ken Peters who was a reporter for The Hamilton Spectator. I also want to say that the mover of the bill acknowledged that he was aware of this case and its significance. I am sure it was one of the reasons that he saw fit to bring this bill forward.

Many of us in Hamilton have known Ken for a long time. He would be the poster child of a professional journalist. If we were to ask anybody who has worked with him, either within the business or as a community leader who has been on the other side of his role, the person would say that he is a professional through and through.

What did he say when he was eventually asked by a judge to divulge a confidential source? He stated:

“I have no alternative,” Peters told the Canadian Press last week. “I am a Canadian journalist. We protect our sources.”

The ability to say that as a proud Canadian only matters if we have the law to back it up, otherwise they are just words.

To illustrate the kind of class that Mr. Peters has, when the judge asked him directly to release that confidential source, he stood in his place and said, “With all due respect, Your Honour, I can't do that”.

At that moment Mr. Peters needed this place. He needed the Constitution of Canada and he needed the Canadian Charter of Rights and Freedoms. They were not there.

The Canadian Newspaper Association stated on November 18, 2004:

Anne Kothawala, President and CEO of the Canadian Newspaper Association called on media organizations across Canada to join in expressing support for Ken Peters, a Hamilton Spectator reporter cited yesterday for contempt of court for refusing to provide information that would expose a confidential source. Mr. Peters faces a possible jail term and will be sentenced next week.

“The principle that a journalist has not just a right but also an obligation to protect sources is absolutely fundamental to press freedom,” Ms. Kothawala said. “It's a principle that has been recognized all around the world as critical for democracy.”

What country stands prouder on the world stage in presenting itself as a democratic nation than Canada? This is where it all happens. This is where that pride comes from. If it is not based in law, again it is just words.

I want to say to the member in going through the procedures here, there has been a call for a shield. If I am interpreting that properly, a shield would mean “I am a journalist and I am protecting this source” and that ends it right there. Not having that would be the opposite. Canada falls somewhere in between but not in a great place, given the Ken Peters case and the Juliet O'Neill case.

We are open for more debate later I would hope. I hope the bill gets to committee where it can be thought out thoroughly, but it looks like it is a bit of shield and then a little more process.

I know that professional journalists across Canada have been calling for at the very least a more clarified process and this does that. I can appreciate that the member had to keep in mind when he wrote the bill that it has to get through the House, so the end product is not always what has been presented here. Knowing the member as I do, that committee would be fascinating to watch.

I would hope at that committee there would be an opportunity for all parties, or at least a majority, to beef up the shield part.

I know that we cannot go all the way, or at least I have heard pretty good arguments, that at some point there may need to be the ability and that we would want collectively as democrats, not New Democrats per se, but as democrats, to make sure that the flexibility is there.

As it is written I suspect when we begin to hear from some of the journalist associations and the journalists themselves they may suggest that the process is good and it provides more context and makes it clearer and tighter, but the fact is that the Security of Information Act which was brought in to amend the Official Secrets Act after the Anti-terrorism Act caused all kinds of trouble, section 4 of that act was used to actually issue the warrant for The Ottawa Citizen journalist. It would seem to me there is ample room and opportunity for us to provide more along the line of a guaranteed protection. Although I do believe the existence of it is necessary, I hope that we could collectively look at other legislation. Many American states are beginning to move toward this. I think there is an opportunity for us to have a good piece of legislation.

I do not want to be too partisan, so let me just read from the last paragraph from a Hamilton Spectator editorial that concerned a meeting with the Liberal minister at the time:

The minister admitted he hadn't had time to consider the matter much further since then, being distracted by the troubles inherent in a minority government and all. But he did say that he believed in the importance and necessary role a free press played in supporting democracy and that he felt that a “shield law or something” like it should be examined.

We'll take you at your word on that Mr. Minister and look forward to any proposals you may bring forward.

I am not aware that any came forward.

I thank very much the hon. member for bringing this bill to us. I hope that a majority in the House would wish that it least get to committee. Every one of us at some point has talked about the fact that freedom of the press needs to be protected. Now is the opportunity for parliamentarians to put their precious vote behind those words.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, before I begin, could you tell me how many minutes are left in the debate? Do I have 10 minutes?

[The Deputy Speaker, Bill Blaikie]

You have five minutes.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

All right, thank you. Now that I know how much time I have, I can choose from among the notes I have prepared.

First and foremost, I would like to commend my colleague, the member for Marc-Aurèle-Fortin, on his excellent initiative. He has worked very hard on something that is essential to improving our quality of life. This bill allows journalists to refuse to disclose information or a record that has not been published unless it is of vital importance and cannot be produced in evidence by any other means.

This bill is balanced. It protects sources and consequently the practice of journalism. It also takes the public interest into account. It does not create a privileged class of people—journalists—who could write or say anything with impunity. On this subject, Claude Ryan, the eminent editorialist for Le Devoir, once said that the threat of imprisonment meant that a journalist had to think twice before attacking someone's reputation without valid proof.

This bill concerns a matter of principle: the credibility of the journalist, but also of journalism. Imagine a situation where people with valuable information did not dare to pass it on to journalists.

Lawyer Marie Claude Pedneault did an excellent job for the Fédération professionnelle des journalistes du Québec, as my colleague from Marc-Aurèle-Fortin mentioned earlier. I invite anyone who is interested to read her report. I borrowed from it heavily in preparing my speech for today, not because I wanted to plagiarize her, but as a tribute to her. I essentially took factual information from her report. Hon. members will understand that any political comments I make are my own.

First and foremost, Ms. Pedneault gave specific cases where the journalistic source was problematic. The most famous case in the past 30 years is obviously the Watergate case, and the best-known journalistic source in the world was called Deep Throat. Everyone knows about that case, and I do not need to say anything more about it.

More recently, 30 years later, there was the Valerie Plame affair in the United States. The journalist’s crime was to have refused to reveal, to the commission of inquiry looking into the Valerie Plame affair, the name of the person who told her that Ms. Plame was a CIA agent. Right now, the New York Times reporter, Judith Miller, is behind bars, most likely in New York State. She will have to stay there until the end of the deliberations of the grand jury responsible for the inquiry. This is not right, you will agree.

My NDP and Liberal Party colleagues have spoken of other cases. There is Juliet O'Neil of the Ottawa Citizen. In January 2004, 20 RCMP officers searched her home looking for documents she had quoted in her newspaper and that talked about the alleged relations between Maher Arar and some terrorist groups.

There is also the case of Ken Peter of the Hamilton Spectator, of whom we have heard plenty from our NDP colleague. And in August 2004, Pierre Jobin told about the imminent transfer of mentally ill people in the Duberger area of Quebec City. Fortunately, the judge examined the situation and said that revealing the names ran the risk of irremediably affecting Pierre Jobin’s ability to get information in the future from confidential sources. As may be seen, judges sometimes choose to protect journalistic activity because the public’s interest is not directly at stake.

The trend in the U.S., however, is very worrying, because in recent years there have been more subpoenas issued to American journalists than there were in the previous 30 years. The chief reason is the fact that George Bush’s government is not very transparent and that a preferred way of publicizing an irregular situation or wrongdoing is to let a journalist know about it anonymously.

The Bush administration always takes the same approach. Journalists receive a subpoena, they are forced to testify and they are forced to give the name of their source.

American judges, following in the footsteps of George Bush, take a hard line—

[The Deputy Speaker, Bill Blaikie]

I am sorry, but the time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the order paper.