Bill C-426 (Historical)

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

The purpose of this enactment is to protect the confidentiality of journalistic sources. It 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.
It establishes specific conditions that must be met for a judge to issue a search warrant to obtain information or records that a journalist possesses.
It 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. However, a judge may 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.

Canada Evidence Act

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, I am pleased to join in the debate on Bill C-426. I believe that our colleague from the constituency of Marc-Aurèle-Fortin has put much effort into his research on this bill.

The bill is not long, but I think the content of the bill is something that has to be discussed here in Canada at this time. There seems to be a body of case law, but it is not a complete body of case law covering every situation. This is an issue that is going to be with us not only here in Canada but in other jurisdictions around the world.

In fact, the author of this bill tells us that there are other countries in Europe and states in the country to the south of us that have worked hard to enshrine this concept of journalistic protection either inside their legislative works or, as in Sweden, inside a constitutional body of work.

I am always troubled by these bills that try to attempt to answer the big questions of the day. Unlike legislation put forward by a government, on which there should be wide consultation, we have here work compiled on the research, a compilation of case law, that influences different aspects of how it will affect those who are working to have a free press in this country.

I know we all value the free press in this country, although I think sometimes that we do not value it enough, especially the investigative journalism that highlights some of the things we might never hear about without journalists having confidential sources. I also believe that confidential sources are not a substitute for good police investigative work.

However, like other members in the House, I do not even know the principal stakeholders' viewpoint on this piece of legislation, that is, the journalists. I believe that is why we have a committee structure. In committee, we can do our best work in hearing from stakeholder groups, those in favour of a piece of legislation such as this which codifies certain elements of the jurisprudence, some parts even codified by the Supreme Court of Canada, and we also can hear the negative voices, the other side of the issue, who may be concerned about the definitions section on journalism.

Everything seems to be encapsulated, even though it may not be the author's intent to go from a blog writer to a new media source. When I grew up, newspapers were printed newspapers, but online newspapers in my jurisdiction and constituency now enjoy a greater readership than the printed word. We are in a changing time with our media consumption.

I think there is value in sending this bill to committee. I am not sure that I would support this bill at the final stage, but debate has to be heard. I applaud my colleague from the Bloc for spending the time on this and compiling all of the research in all of the various jurisdictions. I look forward to hearing about that research at a later date if this bill passes in the House.

The profession of journalism is vital in a democratic society, I believe, and this is, on balance, a commendable effort to support journalism as a profession. However, it also opens us up to questions and concerns about the balance with protection of sources. I know the member has tried in his various subclauses to put the balance of what is in the public interest into the legislation, but how do we define that? Is it public safety and security interests? What is the definition of “public interest”?

I think there are many times when search warrants are being granted and executed when we should be more cautious and circumspect. I like the fact that in this bill the judge has a right to talk about journalistic protections even if the journalist does not. I think that shows from the author's perspective that it is a public interest that is being defended and not a journalistic one. It is important to note that difference of interpretation in this bill.

We have a situation with this bill that a very interesting and important subject has been addressed in a private member's bill. There are issues. I have read in Hansard some of the parliamentary secretaries' input into this, and they seem to have more concerns than I do at this stage of the game.

I would suggest it would be incumbent upon the justice department officials, knowing that this bill probably will go to committee, to work on some friendly amendments with respect to those areas that could be a void in the legislative process. Either that or they should come to committee and outline why this path should not be followed. Really, it just takes the case law and adds a few parts and, in the author's opinion, protections to an area that will not go away.

We have had many cases and there has been debate about this issue. For instance, would we protect a source that has lied and caused a great deal of problems? Would we protect every source? Would we protect a source, as the bill purports to do, of material that has been used in an investigation, material that is not public? These are all questions.

It is important that we consider the bill. It is very important to acknowledge the hard work and honest effort that has been put into the bill. I applaud the member, because I have worked with him many times in committees and I know his efforts are sincere. For that reason, I would like to have the benefit of more of the stakeholders' input before I make my final decision, but I will vote to send the bill to committee for further work.

The House resumed from October 26 consideration of the motion 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.

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I appreciate the opportunity to rise in what time is left to speak to Bill C-426.

I know the hon. member for Marc-Aurèle-Fortin is a respected criminal law lawyer who has had a long-standing interest in protecting journalistic activity. I expect that one of the purposes of the bill is to codify or cement current conditions and current common law protection to ensure they are not eroded either through legislation before us or perhaps by subsequent case law.

I agree with the hon. member that there is a very important public interest in ensuring that journalists are free to pursue truth, to expose wrongdoings, to look into avenues and to keep public officials accountable. There is also an extremely important public interest in pursuing truth in another arena, and that is in the context of legal proceedings, especially criminal trials where the innocence and liberties of a person are at stake.

There is thus the potential for the pursuit of truth by the journalistic context to clash with the pursuit of truth at trial. The courts have tried to address this tension. They have done so by applying a sophisticated balancing test between protection of freedom of the press and the state's interest in the investigation and prosecution of criminal activity.

The issue before us is not the importance of journalistic activity in their pursuit of truth. Rather the issue is whether the provisions of Bill C-426 bring greater clarity to the law without unduly compromising the pursuit of truth in civil and criminal proceedings. Therein lies my concern with Bill C-426. I do not feel it does address the serious operational and policy problems.

For example, the reality is that search warrant provisions, which are already contained in the Criminal Code, are an extremely important tool in the investigation of crime. By attempting to shift these provisions into the Canada Evidence Act instead, a serious flaw would be created by the bill not clarifying the current law.

Clearly it is beyond the scope of Bill C-426 to consider amendments to the Criminal Code to modify search warrant—

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I am pleased to have the opportunity to speak to this important bill. I wish to congratulate my Bloc Québécois colleague, the member for Marc-Aurèle-Fortin, who initiated this bill. One need only read it to realize that my colleague has been able to distill hundreds, even thousands, of pages of jurisprudence and case law into a few clauses. For that is the issue.

Bill C-426 does not grant a privilege to journalists, nor to the media. The bill, and particularly the section dealing with searches, protects journalistic activity. It clarifies and protects the most noble elements of journalistic activity, freedom of speech and the public's right to information, conditions which are essential for democracy.

In cases of wrongdoing or in any other action that causes harm or injustice, it is normal that a citizen who understands these values would be tempted to alert the public and thus help identify and denounce the errors committed. Do we really believe that a citizen will feel like doing so if he or she thinks there may be reprisals?

However, if the justice system can count on clear legislation such as BIll C-426, a citizen who witnesses a fraudulent act or one that harms someone will feel comfortable informing the public through a journalist, in an attempt to improve our society. Similarly, journalists will feel comfortable publishing this information if the conditions allowing them to protect their sources are clearly set out in the legislation. Society can only benefit.

In September 2005, the Fédération professionnelle des journalistes du Québec took a stand on the matter by publishing a report entitled “Protection des sources et du matériel journalistique”. The report was written by Marie-Claude Pednault and is available in French on that organization's Web site. I invite all my colleagues in the House to read it. I would like to quote part of that report.

In January 2004, in R v. The National Post, Justice Mary Lou Benotto of the Superior Court of Ontario pointed out that the evidence heard demonstrates that the use of anonymous sources is crucial to uncovering and reporting information of interest to the public. According to the judge, forcing a journalist to break a promise to not disclose the name of a source would cause considerable harm to the public's right to information. Justice Benotto referred to a very interesting comparison made the House of Lords in Britain: if the identity of police informers could be revealed in a court room, police informers would stop informing, and the police would be very limited in their duty to prevent and solve crimes. To force journalists to reveal their sources could have similar repercussions on the freedom of the press.

Closer to home, in the Supreme Court of Canada ruling Canadian Broadcasting Corp. v. Lessard, Justice La Forest wrote:

I have little doubt, too, that 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. That someone might be deterred from providing information to a journalist because his or her identity could be revealed seems to me to be self-evident.

As the judges I quoted—and I could have quoted more—so clearly expressed, if society wants to shed some light on many crimes and injustices, it has no choice but to ensure its citizens anonymity in the disclosure of certain information.

Anonymity is fundamental to the activities of a number of organizations that protect the public and fight crime, such as RECOL, a system for reporting economic crime in Canada, InfoCrime Québec and Quebec's youth protection branch, which receives reports of child abuse, violence and negligence.

Protecting sources of information in the case of tips or journalism is vital in societies that value public safety, but also in societies that fight abuse and injustice. Consequently, can this House afford not to pass Bill C-426, given how clear and relevant it is? I do not think so.

It would not be the first time a country has passed legislation enabling journalists to protect their sources. In her 2005 report, Ms. Pednault says that legislation to protect journalists has been passed in 31 American states and the District of Columbia.

In Sweden, protection of journalists in both the print and electronic media is enshrined in the constitution. The Swedes are so convinced of the importance of protecting journalistic sources that a journalist who reveals the identity of a source can face criminal prosecution.

Protecting sources is not the only important consideration when it comes to freedom of expression and information. It is just as important that the public sees the media as independent from the government and its public safety agencies.

Media credibility is crucial to the public's perception of what they see in the media. Under Communist rule in the former USSR, if Pravda, the official government newspaper, reported that the potatoes were excellent that year, people would stop buying them. I am joking, but you can see that this is not so far from reality. On issues such as the neutrality of journalistic information, the smallest suspicion creates doubt in people's minds. We who work in politics understand this all too well.

Now, after having explained why I think Bill C-426 is so important and so relevant, I want to emphasize one final, essential aspect of the bill.

Although the bill clearly defines the conditions with respect to disclosure of sources, disclosure of unpublished documents, warrants for documents and the publication of information following a warrant, it maintains the judge's right to apply the subsection that recognizes a journalist's right not to reveal a source except under the conditions set out in the bill. In such cases, the judge must ask the prosecution, the defence and any other party to the cause to submit their opinions on the matter.

That way, the judge can protect a source known to a journalist as defined by the bill who does not have sufficient resources to make full answer and defence. I appreciate my colleague from Marc-Aurèle-Fortin's experience and rigour, which minimized the loopholes that could have undermined the protection provided by the law. This is very important because it shows, once again, that the purpose of the bill is to provide a legal framework that is both effective and useful.

I have just one more point I would like to raise about—

[Lloyd St. Amand, Liberal, Brant, ON]

Mr. Speaker, like my Bloc colleague across the way, the mover of the bill, I am very pleased to join in this debate and speak on Bill C-426, which is, as we have heard, an act to amend the Canada Evidence Act.

The substance of this bill is the protection of the confidentiality of journalistic sources. It would, in short, allow journalists to refuse to disclose information or a record which has not been published unless that information or that record is of vital importance and could not otherwise be produced in evidence in any other fashion.

The bill, as I read it, would also stipulate conditions which must be met or complied with before a judge issues a search warrant to obtain information or records in the exclusive possession of a journalist.

The bill would also allow journalists to refuse to disclose the source of the information which they gather, write, produce or otherwise disseminate to the public through any media and to further refuse to disclose any information or document that could identify a source or sources.

However, a judge would have at his or her discretion the authority to order a journalist to disclose the source of the information if that judge considered the information or the data to be in the greater interest of the public.

I am inclined to vote in favour of the bill at least going to committee stage, with the expectation that the committee members would see fit to amend the bill when they scrutinize it.

There have been various court decisions on this topic. Generally, Canadian courts have followed the ruling in a decision from Great Britain, cited as Attorney-General v. Mulholland. The nub of that decision is that journalists should only be required to reveal information received from a source in confidence when it can be demonstrated that the information is relevant and necessary in order for the case to be resolved.

Closer to home, one of the best known cases on the issue of journalistic freedom is the case involving the Ottawa Citizen reporter Juliet O'Neill. Members of the House will recall that Ms. O'Neill, a journalist writing for the Ottawa Citizen, wrote an article on November 8, 2003 about Maher Arar, the Syrian-born Canadian citizen whom American authorities arrested and wrongly deported to Syria.

In January 2004, some several weeks after her article, the RCMP obtained two search warrants to search Ms. O'Neill's home, as well as her office at the Ottawa Citizen. The warrants were issued by a justice of the peace in support of a criminal investigation into alleged violations of the Security of Information Act.

The searches of Ms. O'Neill's residence and office took place on January 21, 2004, and resulted in the seizure of certain documents and certain computer information. Needless to say, Ms. O'Neill did not agree to the searches taking place either at her home or at her office.

The matter found its way to the Ontario Superior Court of Justice and an extensive hearing over several days took place in the late summer and early fall of 2006. The Superior Court Justice struck down various subsections of the Security of Information Act, ruling that the subsections violated both section 7 and section 2 of the Canadian Charter of Rights and Freedoms. We know that section 7 in particular deals with “the right to life, liberty and security of the person and the right not to be deprived” of those rights “except in accordance with the principles of fundamental justice”.

In commenting on the subsections of the Security of Information Act, the justice held that the subsections were overly broad, arbitrary, 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. In short, the justice ruled that the subsections were of no force and effect.

After the decision of the court, the federal government announced that it would not appeal the decision and that it would consider its options. In February 2007, the special Senate committee on the Anti-terrorism Act released a report recommending that the Security of Information Act be amended to narrow the scope of information for which disclosure is an offence.

As always, the issue is the proper balance to be struck between the public's right to know, broadly speaking, and the interest of the public with respect to security matters. Clearly, it is essential for the government to be able to prevent or deter the release of certain types of data in the interests of national security and that deterrence can and should include the imposition of criminal sanctions. But public discourse is a vital part of any democracy, as was expressed by the Supreme Court of Canada in 1996, and I quote:

The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule. The liberty to criticize and express dissenting views has long been thought to be a safeguard against state tyranny and corruption.

As the well-known French author, Albert Camus, said, “A free press can of course be good or bad, but, most certainly, without freedom it will never be anything but bad”.

In my view, Bill C-426 moves us further along with respect to the proper balance to be struck between journalistic freedom on the one hand, and the disclosure of information which is of critical importance and cannot be produced by any other means on the other hand.

Like the member opposite who spoke prior to me, amendments that I would like to see introduced at committee stage include a tighter or better definition of “journalist”. The definition of “journalist” as presently written in the bill is too broad and would undoubtedly be problematic. It is peculiar, however, that currently no federal or provincial legislation appears to define the term “journalist” nor does Canadian case law provide a consistent definition. Ideally, the committee will see fit to recommend an improved definition of the term “journalist”.

There are also a number of instances where the English wording of parts of the bill is weaker than the French wording. This situation can also be remedied through amendments at the committee stage.

Simply put, my inclination is to support the bill proceeding to committee in the hope and expectation that amendments will be made at that stage.

[Jacques Gourde, Conservative, Parliamentary Secretary to the Minister of Labour and Minister of the Economic Development Agency of Canada for the Regions of Quebec]

Mr. Speaker, I am pleased to address Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants).

This bill includes three key measures: it protects the confidentiality of journalistic sources, it protects the unpublished information that a journalist may have, and it sets additional requirements for the issuance of a warrant to search media facilities.

There is probably not a single Canadian who would question a statement to the effect that freedom of information and freedom of the press are two pillars of a free and democratic society. Indeed, paragraph 2(b) of the Canadian Charter of Rights and Freedoms specifically provides a constitutional guarantee whereby everyone has fundamental freedoms, namely freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

However, I wish to point out with all due respect that protecting freedom of the press is not the issue here. Rather, we must determine whether the provisions of Bill C-426 improve existing legislation and allow us to ensure a fair balance between the interests of the state, when it investigates crimes and prosecutes criminals, and the public interest that consists in protecting journalists who are seeking the truth from state intervention.

I commend the hon. member for Marc-Aurèle-Fortin for trying to include in legislation protections offered in common law for journalistic activities. I know he has been studying this issue for a long time. Nonetheless, this area of law is very complex and it is extremely difficult to formulate legal provisions that cover all relevant considerations.

I feel it is important to remember that the general rule in penal law and civil law is that all information that concerns a trial is admissible. Confidential information is an exception to this general rule.

The law of privilege has over time become a means for protecting individual relationships that are essential for the administration of justice or for society in general. Solicitor-client privilege, police informer privilege and spousal privilege are well-known examples.

It is important to realize that privilege in effect denies both the state and the parties involved in the case, including defence lawyers in a criminal trial, access to information that could be quite useful. A change to the law of privilege, and even an attempt to include in legislation what already exists in common law, could have far reaching repercussions on the administration of justice and on the public's confidence in the justice system as a whole.

There are provisions in Bill C-426 that raise concerns. For instance, the definition of journalist is so broad that it could include occasional bloggers. Do the members of this House really want to have a provision that will make it harder for those who want to obtain relevant information from bloggers?

Other provisions of Bill C-426 pose serious strategic problems. For example, Bill C-426 says that the provisions designed to protect journalists take precedence over any other federal legislation. This means that a journalist who has information pertaining to national security could use the provisions in this bill to make it very difficult for government to have access to this information, if and when necessary. Given that the word “information” used in the bill has not been defined, it is not limited to information gathered or disseminated for journalistic purposes.

I raise these concerns to show how difficult it is to entrench in law notions that already exist in common law, and to emphasize the very important strategic and operational issues raised by this bill.

I urge hon. members to defer consideration of Bill C-426. It would be in the public interest that the very important subject of journalistic privilege, and all its implications for the justice system, be referred to the Standing Committee on Justice and Human Rights for an in-depth review. Such a review would give the hon. members an opportunity to hear the experts and give careful consideration to all the important issues related to journalistic privilege, a number of which are beyond the scope of Bill C-426.

I thank hon. members for this opportunity to speak on this very important issue.

[Jacques Gourde, Conservative, Parliamentary Secretary to the Minister of Labour and Minister of the Economic Development Agency of Canada for the Regions of Quebec]

Mr. Speaker, certain provisions of Bill C-426 are of concern. For example, the definition of “journalist” is so vague that it could include occasional bloggers. Does my dear colleague and member really wish to adopt a provision that would complicate the work of parties that wish to obtain information from bloggers?

[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, I believe this is the second time that I have the honour of addressing the Chair regarding this bill. It is because of the parliamentary recess and prorogation that I have an additional hour of debate. However, I do feel the need to summarize what I said when the bill was introduced for the first time. Following this new process, many people may think, when they read Hansard, that this legislation is being debated for the first time. So, this is an opportunity for me to respond to a few questions, and even to some criticism that I have heard since the introduction of this bill.

It is true that I have been interested in this issue for a least some 30 years, perhaps even longer—since 1968, in fact. I remember that, at the time—this was before the Charter—we were hoping for legislation to deal with what this bill is addressing. The Charter allowed us to make some progress, but not enough. I find it deplorable that the journalistic practice that I want to protect with this legislation has not been better protected here, even though it has been protected to some extent by the Supreme Court of Canada. The fact is that a very large number of countries in the world, which abide by the same principle of press freedom, have passed laws to ensure such protection.

It is important to first understand this: I am not asking that privilege be bestowed upon journalists. What I am asking for is what the bill would establish: protection for these individuals who we have to recognize have the courage to expose scandals, instances of misappropriation or fraud, and who might face reprisals, should their identity be revealed. The risks they face can run high, depending on the organizations they go after, for example when there is fraud within major organizations.

We are talking about a journalistic practice that has developed over the past 50 years and which is generally recognized as a good thing in our societies. In fact, these individuals who become aware of situations where funds are misappropriated take this information to a journalist. In return, the journalist offers confidentiality, promising never to disclose their name without their consent. That journalistic activity is what this bill seeks to protect.

Usually, journalists look into the matter brought to their attention. They are guided in their investigation by this confidential source, but do not reveal the scandal until the facts can be independently confirmed and they believe it is in the public interest to make the misappropriation known.

The first part of the legislation would enshrine this journalistic practice whereby a journalist may promise his sources that they will remain anonymous for as long as they see fit or fear reprisals.

I also want to protect the practice of journalism. I might add that journalists should not be regarded as auxiliary police, as Supreme Court judges have pointed out in R. v. Lessard.

There are therefore five major provisions in this bill. The first one provides for the protection of journalistic sources, as set out in subclauses 3 to 6, the first two subclauses dealing with definitions and application respectively. As for subclause 7, it provides for something special: lesser but nevertheless very significant protection for unpublished journalistic material.

The objective here is that journalists not be perceived by the public as aiding the police. Usually out of laziness, the police want to give journalists information that they themselves have decided not to release. This is especially true in the case of demonstrations or strikes that turn bad.

The third part refers to issuing search warrants, the conditions for such warrants and conducting the search. Finally, subclause 11 provides a simple way of publishing information under the Canada Evidence Act. It seems to me that there is no need to require someone to appear. A publication is a publication. All someone would have to do to prove that something has been published is produce the publication.

As with any right or duty we want to grant or any value we want to protect, we have to think about other values that may conflict with those we want to protect. Certainly, nearly all the members of this House recognize that the journalistic practice of protecting confidential sources has made it possible to shed light on serious misdoings.

History is filled with such cases, the most famous being Watergate, the Enron scandal and even the sponsorship scandal. In my opinion, confidential sources will likely be increasingly necessary and common as companies secretly try to circumvent environmental protection rules, for example. A journalist would need to be pointed in the right direction in such a case. Here again, journalists will always have to base what they write on evidence they have obtained independently, or else pay damages in case of libel. Their papers will have to pay as well, which is why newspapers are fairly cautious in using this journalistic practice. Our intent is not to create a licence to commit hidden libel.

Since we are talking about a social value and not a privilege given to a certain category of people, the bill provides that judges themselves may raise the issue if they see that there is a problem of a confidential source. Judges may—I am not saying they must—raise the issue and ask the lawyers for their opinion. In this way, judges can protect the source against a negligent journalist who promised to protect a source but did not take steps to do so or no longer objects to the source's identity being revealed. Because the bill aims to protect the source, judges may raise this issue on their own initiative.

This tool is well defined in clause 5. A judge can weigh the values that may lead to contradictory decisions.

I was asked what judge this refers to. If we understand the section well, it means the judge before whom the journalist testifies or a judge who is asked to order the journalist to disclose their sources. This can mean a number of different types of judges who preside over criminal or civil courts, or even a federal court, as is currently the case. The judge could nonetheless order this disclosure, but only if the judge considers it to be in the public interest or if the following conditions are met.

The person has done everything in their power to discover the source of the information and the disclosure is in the public interest, having regard to the outcome of the litigation—that which is at stake—the freedom of information, and the impact of the journalist’s testimony on the source. Obviously, they will assess whether the source did indeed tell the truth or not and whether they committed a crime or not. It is still quite possible to have cases on this issue.

As far as clause 7 is concerned, perhaps because it is short, some people did not exactly understand the significance of it. This is the third part of the legislation I am proposing.The purpose of this clause is to protect a journalist's information, namely unused footage for television. Journalists must not be perceived as auxiliary police, as an easy place to go to for evidence of wrongdoing during a demonstration, for example. That was the context of most of the cases I dealt with in my career as a pro bono legal advisor.

The courts have been very clear about their reasons for accepting such a thing. For example, Justice La Forest, in Canadian Broadcasting Corp. v. Lessard, said:

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.

Clause 7 seeks to protect that freedom. It sets out the exceptional situations in which it might apply.

The rest of the bill, except for the last subsection, deals with search warrants. I have basically summarized existing case law, which is much clearer on this issue than on the first one my bill addresses. I have explained all of this in detail before, and people can review the record.

I also want to point out that this principle has been recognized in most European countries. It has been recognized in 32 of the United States through legislation and in 18 others through case law. There is one major exception in the United States: the principle is not recognized in federal legislation, but it is widely recognized elsewhere.

In Sweden, the principle was considered so important that it was enshrined in the Swedish constitution. England does not have laws to protect journalists, but the European Court of Human Rights overturned the conviction of a journalist who refused to reveal a source he had promised to keep anonymous.

It is clear that this journalistic practice is widely recognized in the civilized world. The principle is recognized in Canada, but I think that it now makes sense to enshrine it in law to simplify things and to guide the people involved, such as police officers, journalists and justices of the peace who issue warrants.

The courts will decide whether this complies with the charter or not. The charter recognizes basic rights, but in a society like ours, people have much more than basic rights. It makes sense to define those rights in relation to the charter, of course, but sometimes we need to go beyond the charter. Parliament must step up to the plate and must not leave the toughest problems to the judges.

[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.

[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.

[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.

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

moved for leave to introduce C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants).

Mr. Speaker, it is always a great pleasure to introduce a private member's bill for the first time.

I have chosen an issue which has concerned me since the late 1960s and which, unfortunately, is still ongoing. I am referring to the protection of journalistic sources and a civilized way of conducting searches, which sometimes must be done at media premises.

The purpose of this enactment is to protect the confidentiality of journalistic sources. It 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.

It establishes specific conditions that must be met for a judge to issue a search warrant to obtain information or records that a journalist possesses and sets out the way in which a search must be conducted to protect that which must be protected.

It 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.

However, a judge may 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.

In conclusion, the purpose of this bill is not to confer privileges on a journalist but to protect journalistic activity, which is essential to ensure a just and truly democratic society.

(Motions deemed adopted, bill read the first time and printed)