Thank you, Mr. Chair and honourable members. Thank you for the opportunity to speak to you today.
Many of you will know that CACP appears before your committee and before the Senate on a wide range of bills. In fact, members of our association have appeared before this committee on several of the bills you have dealt with recently, and so have my colleague and I, as you recall.
This is the first time, to our recollection, that we have appeared before you concerning a private member's bill. We ask that you notice that the CACP is here, because we wish to bring your attention to some quite serious concerns we have with the language of this bill.
Before we comment further, let me state first that the CACP understands the motivation behind Bill C-426. The press and the journalists who operate within that estate are a vital part of a free and democratic society, holding government and its institutions to a high degree of accountability and public scrutiny.
We in the policing community know very well the importance of public accountability and the service provided to our citizens by the media. Clearly, to do that job effectively, journalists must work free from political or other interference. It is important to state at the outset that the police community does not object to the principle of journalist privilege. It is in fact currently recognized in this country as a common law principle.
Yet it is also important to note that the codification of such a privilege should be suited to address precisely that privilege and not used to potentially shield illegal communications or documents from legitimate law enforcement investigations and prosecutions and thus ultimately discredit the very values it is meant to protect.
As the committee knows very well, however, in most aspects of our society and the legal framework under which we live, there's a need to find the appropriate balance between the rights and powers of one institution or activity as against those of the other. Drafters of legislation and you, honourable members, must carefully weigh that balance when you bring laws forward into legislation.
In this case, with respect, some important modifications to this bill are needed before it meets that test. Permit me to elaborate after making two general points.
Our association notes that to date the courts and legislators have declined to add to the class privileges afforded to, for example, solicitor-client communications and informant privilege. In our view, that decision should be formulated after the appropriate level of public policy consultation and debate. That has not occurred in this case, and in our estimation it should. There has been insufficient debate, and we would urge you to consider affording that opportunity.
The second general point is that we believe the bill as presently drafted attracts a series of unintended consequences. Some of the language is overly broad, imprecise, and ambiguous and may therefore become a hindrance to the effective administration of justice. Such a result, in our respectful submission, defeats the balance of interest that you, honourable members, must so carefully maintain. That is the balance between the public good of a free and vigorous press and the equally important public good of an effective criminal justice system.
As stated, we believe the intention behind the bill is to facilitate true journalism and all of the public good that comes from a free press. In order to achieve that goal, it is important firstly that the bill aim at true journalism. Today many persons, especially by using the Internet, may be called journalists or “the press” because they disseminate information to the public, yet may not merit the journalist's confidential source privilege. Many websites promoting racism, hate, or drug cultivation, for instance, would qualify under the notion that they're engaged in the dissemination of information to the public, yet would the average Canadian call them journalists?
Since this bill purports to do that which the courts presently determine on a case-by-case basis, the wording and definitions within it are crucial. Some jurisdictions where similar laws have been enacted have chosen to provide a definition, while others refer to notions of profession, gain, or employment as a way of putting appropriate boundaries around who might be considered a journalist and therefore be entitled to assert the privilege. We acknowledge the amendment suggested yesterday by the proponents of this bill as being a step in that direction.
In addition, we also respectfully submit that it should be made very clear that illegal documents or communications are excluded from the application of the act. As the Ontario Court of Appeal very recently said in the case of the National Post:
Although, in pursuit of their constitutional right to gather and disseminate the news, journalists are entitled to protect their sources, that entitlement loses much of its force when journalists use it to protect the identity of a potential criminal or to conceal possible evidence of a crime.
As the court said, the press, like anyone else, should have an interest in seeing that crimes are investigated and prosecuted. Society expects as much. Instead of furthering that interest, however, the respondents, in that case, were shielding a potential wrongdoer from prosecution for a serious crime by refusing to deliver to the authorities the items representing the actual actus reus of the offence. But again, we notice that the proponent of the bill wants to introduce what we understand to be a crime exception, and we submit that such an amendment is very necessary.
Furthermore, we think the recent decision in the National Post case shows that the case-by-case approach works very well in Canada. If, however, the intent of this legislative body is to codify the recognition of journalistic privilege, we see no necessity to introduce a complete class privilege, or a de facto class privilege, by reversing the burden of proof as found in proposed subsection 39.1(6) of the bill.
Permit me, if you will, to summarize a few points. First and foremost, the CACP believes the present state of the law as most recently applied in the National Post case applies the appropriate balance between the state's legitimate need for effective public security and an unfettered and free press. This means that the present application of a journalistic source privilege is being applied appropriately on a case-by-case basis. The law, in our respectful submission, is working well.
Secondly, if it is the intention to codify the present state of the law and not to extend the class of privilege, the bill as presently drafted should be improved in order to meet this aim. Any intention to create a new class of privilege must, in our view, be done after a much more enhanced period of public debate and consultation.
Thirdly, in order to avoid unintended and detrimental consequences, some amendments to the language are required. As stated, the definition of who's a journalist needs refinement; as well, some language that clearly states that unlawful communications or when the communication constitutes the actus reus of an unlawful act—for example, child pornography or hate-promoting communications—cannot be privileged, or where the journalist is engaged in illegal activity, for example, as a co-conspirator, and receives information from a source in furtherance of an unlawful activity. We note that while this might be implied by the common law, as it is with solicitor-client privilege, solicitor-client privilege as applied to the criminal law is created by the common law, so the common law exclusions clearly apply. It is much less clear that common law exclusions would automatically apply to a statute-based journalist privilege, unless clearly stated so in the statute.
Clearly, the goal behind the bill is laudable. The effect of the bill, though, and the imprecision of some of the drafting leaves those laudable goals in peril. We believe journalists may also share our concern. They too have an interest in protecting the integrity of their profession from the stain of hate-mongers or child pornographers, hiding behind the cloak of a claim of privilege that the courts, you honourable members, and our fellow Canadians neither sought nor wished to grant them.
Thank you. Those are my remarks.
Mr. Pichette will now make some closing remarks.