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.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, I am pleased to rise tonight to speak to private member's Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants).

I find myself in the position of following a number of other speakers on this bill, but I do believe it is important to reiterate some of the previous comments and points made and to add my own views to the debate.

I also want to be clear at the outset that I rise in support of Bill C-426 and its intent to protect journalistic freedom in Canada.

In this House when speaking to a number of bills previously, I have made the statement that I feel democracy, yes even our democracy, is a fragile thing that needs not only to be nurtured, but sometimes to be pushed a bit to match the expectations of Canadians.

I know Canadians from the Hamilton area in particular will be quick to say that they feel the role journalists play at times when leaks on government practices or other situations of mismanagement or misconduct are brought to light is essential to their knowing the issues and how they can expect the government to respond.

I would also suggest that the reason this issue would be of particular interest to the residents of Hamilton is the fact that they observed a reporter for the Hamilton Spectator, Mr. Ken Peters, face a contempt of court charge on this very issue.

Mr. Peters was called before Justice Crane on a case involving alleged abuse at a seniors residence in Hamilton. Mr. Peters had exposed this case based on, to a large part, evidence he had received from a confidential source.

We all know the type of interest that would happen in a community around such allegations. This particular residence is a very high profile one. Of course that creates quite a situation if there is any chance of the name of that private source coming out.

One has to ask, would the individual have offered the information had he or she known that his or her name would be part of a court record?

The judge in this case had not even ruled that knowing the name of the source was essential to the case before he threatened to penalize Mr. Peters and cause him to pay court costs to the sum of around $31,000 if he did not reveal that confidential source.

I have known Mr. Ken Peters for close to, if not more than, 20 years. One thing people in my community would agree on is that Mr. Peters conducted himself professionally and exhibited professionalism in his work at all times.

When Mr. Peters was ordered by Judge Crane to reveal his source, Mr. Peters declined, saying, “With all due respect, your honour, I cannot do that”.

I would ask the members present to think about this for a moment. We function in this place with the protection of the House of Commons surrounding us. How would we feel in the day to day cut and thrust of what happens in Parliament if that protection were removed and we faced endless prosecutions or court challenges as we brought forth the issues of the day?

I would like to quote Peter Desbarats who wrote in the Globe and Mail in 2004 on this particular point:

Judge Crane's ruling was extraordinary for its lack of knowledge and perspective on media practices and its narrowly legalistic approach. It represented a step backward in what has recently been some progress in Canadian courts toward treating secrecy of source with the respect it deserves.

Secret sources are vital. Without the ability to protect the identity of sources, journalists would be severely handicapped in performing one of their essential functions.

This becomes clearer if one considers all journalism as falling into two categories. The first is “official,” and most of the information carried by the media--from major political news to weather reports--belongs to this group. Almost all of this service information comes from official sources. And when it comes to political information, almost all is biased or incomplete.

The second category is “unofficial” journalism. Although it is much smaller by volume than official information, it is far more significant. It usually contains key facts that governments or corporations try to conceal for self-serving reasons. This information, by definition, can only come from unofficial or secret sources.

The media rightly place a high value on this kind of exclusive information, and they give it prominence. Journalists who earn a reputation for being adept in uncovering this type of information are the respected leaders in our field; they expose corruption in government and business and alter the course of affairs for the better.

It is not an exaggeration to say that the measure of an effective democracy is the amount of unofficial information carried by its media. And the growing trend toward enacting “whistleblower” legislation to protect the sources who provide this information is an indication of its importance.

Later on he said:

Why would journalists place themselves in such jeopardy? According to Judge Crane, they are pawns of media owners intent on selling “the news”. These owners “employ journalists to search out newsworthy information using as one means, the undertaking of confidentiality to sources.”

After hearing from a few journalists and media experts, Judge Crane concluded that “any journalist that has revealed a source will never again be employed in a newsroom.” He blames the “oppressive nature of the culture” for the predicament of Mr. Peters.

This is truly a bizarre distortion of what occurs in most newsrooms.

To begin with, the obvious need to use secret sources is apparent to all journalists, not something that employers force them to do. It's an essential element in obtaining the kind of unofficial information that enables journalists to produce their most meaningful work.

Far from insisting on the use of secret sources, publishers, editors and news directors try to ensure that their reporters don't lightly give undertakings of confidentiality. In fact, they won't allow a reporter to do this without the express consent of a senior editor to whom the reporter has confided the identity of his or her source. News organizations do this for their own protection, as the Spectator did in Mr. Peters' case.

This common practice engages the news organization intimately in all risks involved in promising confidentiality to a source. Far from being an example of an “oppressive culture” in the newsroom, it illustrates, in our best media, a co-operative effort to produce truly significant information.

Virtually all journalists are aware of the dangers involved in promising confidentiality; they use this method only as a last resort.

He went at some length beyond that.

In democracies around the world, the right to protect one's confidential sources is seen as critical to the very core beliefs of the democracies. Canada has a long-standing reputation around the world as a defender of citizens' rights as well as human rights, but in the case of the journalist's rights, it is just words and is not codified in law.

I commend my Bloc colleague who brought this bill before the House to ensure that Canada lives up to those words.

It is ironic that as we debate this bill, the protective shadow of the Charter of Rights and Freedoms fails to cover such a basic protection as that needed by journalists. I would add that the irony of the fact that the current federal government, which espouses accountability and honesty and thus has nothing to fear from such a bill, did not bring forth proper legislation during the early months of its tenure.

Earlier in this debate, the member for Hamilton Centre referred to a Hamilton Spectator editorial on Mr. Peters' case and the response from the then Liberal minister. The editorial stated:

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 a “shield law or something” like it should be examined.

The editorial ended with:

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

We are not aware of any proposals from that minister or the current one.

I would say that in the life of any politician, we may well disagree with the direction in which a journalist may choose to exercise his or her freedom of choice to report, but it is our democratic responsibility to legislate to protect that very freedom.

I have asked how long would the sponsorship scandal have festered if it had been ignored by the media out of fear. Today we see nightly reports on the Mulroney-Schreiber case. What would have happened if the media had not been working on those cases?

In closing, I would say it is essential for all parties to send a clear message to journalists that they need no longer live in fear as they respond to their obligation to report to our nation on the controversial issues brought forward by confidential sources.

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

Mr. Speaker, I am pleased to rise today to speak to Bill C-426 on the protection of journalistic sources and the issuance of a warrant to search media facilities. This bill was introduced by my hon. colleague from Marc-Aurèle-Fortin.

We know that Bill C-426 deals with two topics of great importance to any democratic society in which freedom of the press and freedom of information are fundamental values ensuring that an informed debate can take place on issues facing modern societies.

In the vast majority of democratic societies, legislation has been passed concerning these two topics. In other societies, such as ours, the courts have had to rule on these matters as specific cases were brought before them, as indicated by my colleague from Hamilton East—Stoney Creek.

This has resulted in a number of sometimes contradictory rules. As a whole, all these rules may therefore appear inconsistent. However, the courts have consistently recognized the importance and relevance of such a debate in the context of a free and democratic society.

The time has come for the elected representatives of the people to do their part to help resolve in a civilized fashion conflicts which, inevitably, might arise from time to time between the legitimate objectives of governments and the needs specific to journalistic work.

In dictatorships or totalitarian regimes, these issues never arise, but they have arisen in all democracies.

To understand this bill better, members need to see that it is divided into five parts. It might be appropriate to divide it into five clauses rather than five subclauses.

The firs part includes the first two subclauses, which consist of the introduction and definitions. By the way, the term “journalist” is defined in the bill. When the bill is studied in committee, the committee members will do doubt want to discuss and debate this definition of “journalist” again.

The second part includes subclauses 3, 4, 5 and 6. Subclause 3 sets out the principle of protecting a source who has provided a journalist with information in confidence.

Since the purpose of the bill is not to give journalists a privilege but to protect a type of journalistic activity that is considered useful and even necessary in a democracy, subclause 4 provides that the judge may, on his or her own initiative, raise the potential application of subclause 3. I stress the word “may”.

The judge does not have to do so, but can if he or she believes it is necessary. The judge is given this power because protecting confidential sources is in the public interest and not a “corporate” privilege. A source who demanded confidentiality must not suffer because of the negligence or error of the journalist in whom the source confided, if the journalist does not keep his or her promise to protect the source.

Subclauses 5 and 6 deal with the exceptional circumstances under which protection will not be granted. They set criteria that the judge must consider—essentially, the values that are at stake—in upholding or refusing protection. They also cover the procedure to follow and the burden of proof on each of the parties.

Subclause 7, for those who have read it, does not deal with the confidentiality of the identity of a journalistic source who has provided a journalist with information. It deals with journalistic information that has not been disclosed or published—often notes—even if the journalist did not obtain this information from a confidential source.

This protection is important so that the public does not perceive journalists as “auxiliary police” or as assisting the government, which would impede their ability to obtain information and properly inform the public.

In this regard, Judge La Forest of the Supreme Court of Canada wrote in R. v. Lessard in 1991:

Like Justice Cory, I take it as a given that freedom of the press and other media is vital to a free society. There can be no doubt, of course, that it comprises the right to disseminate news, information and beliefs. This was the manner in which the right was originally expressed, in the first draft of s. 2(b) of the Canadian Charter of Rights and Freedoms before its expansion to its present form. However, the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference.

The judge went on to say:

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.

Since this case did not involve protecting a source that provided a journalist with information in confidence, but searching Radio-Canada premises to find and seize video recordings of a demonstration of strikers, the last sentence applied to the journalistic activity in general and not just confidential protection.

Am I to understand that I have just one minute left, Mr. Speaker?

[The Acting Speaker, Royal Galipeau]

You have four and a half minutes left.

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

Thank you, Mr. Speaker. I was wondering because I cannot see you all that well. I shall carry on, then.

It is in the public interest that journalists not be regarded as auxiliary police. In fact, during the 1970s, at a time when demonstrations were more commonplace and often less peaceful than today, to say the least, camera operators often became the target of projectiles thrown by some demonstrators.

I have to say that the choice of words to translate the term “importance déterminante” was not the best. Each of the words in French has a given meaning: “importance” has the usual meaning given in the dictionary, while the qualifier “déterminante” has a specific legal meaning. It refers to the basis on which the judge can decide for or against a party on the substance of the case or an implicit element. Eventually, this will have to be changed, but we will leave it up to professional translators or speakers of the English language to chose between decisive and determining or some other appropriate qualifier. What matters is that a decision be made, one way or the other.

This criterion is different than the ones the judge must consider in subclause (5), since it does not have to do with protecting the secrecy of a source, but with the fact that journalists must remain independent to do their job. The values are different, even if they all have to do with the gathering of information. Subclauses (8), (9) and (10) have to do with issuing search warrants for media premises, the procedure to follow, how the searches are conducted and the provisions that guarantee protection of any information the judge deems should be protected.

These measures essentially repeat what is in the case law, which is the current authority. They have the huge advantage of taking up only one page, compared to the hundreds of pages lawyers pleading this type of case must now consult. At least, that is what two lawyers who teach and work in the field of information law said. So these measures will be a useful tool for justices of the peace who issue search warrants and for the police officers requesting them, for journalists and their bosses who are subject to them, and for the lawyers they call on when the police show up at their door. In a country like ours, the process set out in this subclause is a civilized way of doing things.

Everyone will benefit from this excellent bill introduced by my colleague from Marc-Aurèle-Fortin: journalists, judges, lawyers, media leaders and their teams and most of all, the public. Marc-Aurèle-Fortin was the perfect person to devise such a relevant bill. His experience as a former minister with the Quebec government, as a criminal lawyer and even as a volunteer legal counsel for the Fédération professionnelle des journalistes du Québec, as well as his knowledge, contacts and personal experiences will now benefit the entire country.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, I am pleased to have the opportunity to speak today on Bill C-426, An Act to amend the Canada Evidence Act .

No one in this House is questioning the importance of the freedom of the press or the essential role of journalists in reporting events or conducting investigations to expose wrongdoings. The freedom of the press is a fundamental cornerstone of any free and democratic society.

That is not to say, however, that the bill before the House is the best way to protect the work of journalists and reconcile their work with other equally important aspects of democratic society, such as the right to a fair trial.

I agree completely with the hon. member for Ottawa Centre, who, during the first hour of debate at second reading, said of the freedom of the press that is was “too important an issue to play partisan politics with”. That is precisely why it is absolutely essential that the hon. members scrutinize this bill and understand the reasons for the government's strong reservations about it.

One of the major problems with Bill C-426 is that the proposed amendments are not being applied to the appropriate legislation. As all members well know, the Canada Evidence Act applies to all criminal and civil proceedings, as well as all other matters under federal jurisdiction. The act has a very broad scope. It applies to judicial proceedings, courts martial, federal tribunals and administrative tribunals, parliamentary committee proceedings and federal judicial inquiries.

Hon. members of this House will recall that the purpose of the Canada Evidence Act is to govern the submission of evidence, in accordance with the rules of common law, in the context of judicial proceedings and all other proceedings. Upon careful examination of the provisions of Bill C-426, it is very clear that, of the 11 subclauses, only two serve that purpose.

The other provisions establish the basic requirements that must be met so the Crown can force a journalist to disclose the identity of their source of information. The bill focuses primarily on considerations linked to criminal proceedings that include, as underscored earlier, only one aspect governed by the Canada Evidence Act.

The forms of protection cited in most of the subclauses of Bill C-426 seem to be linked to proceedings concerning the various stages of the investigation of a criminal trial. Theoretically, if it were decided that such protection is necessary, those provisions should be added to the Criminal Code, and not the Canada Evidence Act. This is such a fundamental shortcoming that it cannot be rectified through an amendment at the review stage in committee.

The bill poses another problem: the provisions of the legislation take precedence not only over the provisions of all other federal legislation—particularly the Security of Information Act—but also over all other provisions of the Canada Evidence Act. This means that these provisions would take precedence over the provisions concerning spousal immunity. They could also overrule the relatively new provisions of the Canada Evidence Act, provisions that give a detailed plan that establishes when it is possible to oppose the disclosure of information on the grounds of a specified public interest or because the disclosure would be injurious to international relations, national defence or national security.

It would be irresponsible for members of the House to study a bill that includes these provisions without a thorough examination of the implications of rescinding recent provisions that were drafted with such care. Such legislative amendments would undoubtedly have very significant operational consequences.

We should at least consult many stakeholders to ensure that the provisions of C-426 do not have a negative impact on other legislative provisions protecting interests that are just as important. I raise these concerns to highlight the crucial strategic and operational difficulties posed by this bill.

I would like to provide a constructive alternative to the immediate study of specific provisions of Bill C-426. It would be in the public interest to return this very important issue of journalistic privilege, as well as the repercussions on the justice system and on all procedures governed by federal legislation, to the Standing Committee on Justice and Human Rights so that it may examine the bill more closely.

This would allow members to hear the comments of experts and to pay particular attention to the various significant issues pertaining to journalistic privilege, most of which are beyond the scope of Bill C-426.

Finally, I would like to thank the members for giving me the opportunity to speak to this issue of vital importance to all individuals.

[David Tilson, Conservative, Dufferin—Caledon, ON]

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

I want to congratulate the hon. member for Marc-Aurèle-Fortin, for bringing to the attention of the House the issue of journalistic privilege. Obviously, it is not the importance of the freedom of the press, or the hon. member's intentions that I am concerned with.

The issue of concern is with the provisions of the bill itself. I say this with respect to the hon. member and with an understanding of the difficulty of attempting to codify an extremely complex area of the law. However, I am concerned not only with what is in the bill, but also what is not in the bill.

A number of previous speakers have highlighted some of the problems with the provisions of the bill. For example, the definition of “journalist” is far too broad to the point that it would even include bloggers. The provision of the bill supercedes all other federal acts. Many of the provisions of the bill, especially the search warrant provision, should be in the Criminal Code rather than the Canada Evidence Act.

The bill contains tests that are unclear. There are illogical provisions in the bill that appear either to overlap or to contradict each other.

There are other gaps in the bill. For example, there is no waiver provision in respect of the privilege. There is no requirement that the journalist must be an innocent third party. There is no requirement that the information in the possession of a journalist must relate to a journalistic activity. Correction of these deficiencies of the bill would be difficult, and some of them, such as opening up the Criminal Code, would likely be ruled out of order.

I would like to turn my attention to the second concern I have about Bill C-426 and that is what is not in the bill. As indicated previously by another hon. member, the Canada Evidence Act is extremely broad in its application. It pertains to the reception of evidence in all criminal and civil proceedings and in other matters in respect of which Parliament has jurisdiction.

Specifically, the act applies to the judicial proceedings, proceedings from court before court marshals, federal tribunals, administrative bodies, proceedings before federal parliamentary committees, and the federal commissions of an inquiry.

The bill is heavily slanted toward considerations pertinent to criminal proceedings which, as noted, are only one component of the matters governed by the Canada Evidence Act. It is not at all evident that the provisions of the bill have been formulated in contemplation of the breadth of proceedings covered by the Canada Evidence Act. This is a very serious limitation. It will be extremely important to assess the operational impact of such a limitation.

Some of the questions which come to mind are the following: How will the issue of journalistic privilege be resolved when the proceedings do not involve a judge, for example, proceedings before a federal parliamentary committee? Section 37 of the Canada Evidence Act regarding public interest privilege has been carefully crafted to cover that scenario. Bill C-426 has not.

What about the proceedings before federal tribunals or administrative bodies? What procedural processes are to be followed to determine whether journalistic privilege applies in these kinds of proceedings? What, if any, review mechanisms are contemplated? The bill is completely silent on all of these important issues.

There is a clear and pressing public interest and public debate about what the policy of the law should be in respect of the protection of journalistic sources and information.

Fundamental policy and operational questions need to be addressed. For example, as a matter of policy, how should freedom of the press be balanced against other pressing public interest considerations? What procedures should be followed to determine these issues? Should these procedures differ, depending upon the nature of the proceedings, for example, a criminal trial versus a proceeding before a federal tribunal? What procedures should be adopted to protect the confidentiality of sources or information until the issue of journalistic privilege is determined by the decision-maker?

There are precedents in the Criminal Code and the Canada Evidence Act for provisions that have been carefully crafted to determine the important policy and operational questions regarding confidential or protected information.

So rather than proceeding with a bill that would need extensive amendments, some of which are likely to be ruled out of order, I believe that the issue of journalistic privilege should be the subject of careful study by the committee.

This study should be based on the review of other privileges, to ensure that protection measures are proportionate to the degree to which this privilege serves the public interest. The study should also take into consideration the numerous types of procedures and contexts under which privileges can be invoked.

The results of this study and the public debate on the issue may lead to very constructive conclusions that go beyond the four corners of the act.

In conclusion, the issue of journalistic privilege raises such fundamental policy and operational issues that the bill should be the subject of further study by the committee rather than being moved forward at this time.

[Art Hanger, Conservative, Calgary Northeast, AB]

Mr. Speaker, it is a privilege to address this issue. As a former police officer, I had numerous occasions to utilize confidential sources for information that led to maybe lengthy investigations and some major charges, which were only solved through the need to have a source. Those sources were very much protected as well as registered.

In fact, now I think all police departments in the country have a registry for sources. There were many dangers fraught with using sources among the police because the sources began to run the police. They would provide information to one police officer in one jurisdiction. At the same time, they would supply information to another police officer in another jurisdiction. Before the registry and the structure was developed, they were committing criminal acts themselves and getting away with it, sometimes unbeknownst to the handlers of the sources. Therefore, they became rather dangerous to any police officer who managed these sources, even though it was pertinent to the investigation.

I am not quite sure how journalists look at their position in this issue of protection of a source. Yes, they can receive confidential information. I can recall journalists being under substantial scrutiny by the police for obtaining information that was embargoed, even embargoed from the House. A lengthy hearing would pursue and journalists were subject to police scrutiny.

I do not know if it is a good idea to remove the authority of the police when it comes to investigating any kind of activity that may involve a source who has passed information, maybe very sensitive information, on to a journalist.

What does the member define a journalist as? I do not know if the bill clearly defines what a journalist is. Is it someone who carries credentials, or someone who is recognized by the media overall, or someone who temporarily acts in that position, or is the tag “journalist” put on anyone who reports to another new media or another source? It is difficult to understand where this is all going.

The provisions of the bill supercedes all other federal acts. I do not know if that is the intention of the crafter of the bill. Many of the provisions of the bill, especially the search warrant provision, should be in the Criminal Code rather than in the Canada Evidence Act. Throughout my history and knowledge of the Criminal Code, those provisions have always remained in the Criminal Code as opposed to any other act.

There are illogical provisions in the bill that appear either to overlap or to contradict each other. There is no question that there is a substantial amount of clarification needed to make the bill an acceptable instrument.

I will talk about a few other gaps that exist.

For instance, there is no waiver provision in respect of the privilege. What if the handlers, who we will call the journalists, decide that the sources they are using have gone beyond what they are even comfortable with, that they may be going deeper into some kind of other criminal activity, but they are also supplying information to those journalists.

If the source is doing such things, where is the provision for the journalist to waive that provision? There does not seem to be any such provision in the bill. It is something to really pay attention to, given the fact that sources can go on a wild tangent. I personally have experienced that, even on a police investigation. Until a tight rein is put on them and restrictions on how that information is used, journalists could run into serious problems, but the bill does not provide any way out. There is no requirement that the journalist must be an innocent third party.

This is a very touchy area on any investigation. If the police were looking for the source of information that the journalist received and reported on and the source had, for whatever reason, determined some information that was very sensitive in the House, for instance, or even if it were a breach of national security, how would it be handled as far as the evaluation of the police and their relationship with a journalist? Would the journalist be looked at as an innocent third party? It is highly unlikely. If there were an investigation into some major breach of security, journalists would be considered as much of the problem as the sources would be.

I assume this is where the crafter of the bill is going with it. He wants to provide absolute protection to any journalist who may receive that kind of information.

I guess the only absolute protection for any group or any individual would be within the legal community, and there are even some limitations there. I can reflect back to the Karla Homolka trial and a source that one of the lawyers had, and it failed. The police never recovered evidence that was confiscated by a lawyer, but the source provided that information. In here, lawyer-client privileges supercede all.

There are many gaps in the bill. There is no requirement that the information in the possession of a journalist must relate to the journalistic activity. Therefore, it appears a fair amount of study is still required to deal with the issue of the protection of journalistic sources.

I suggest the member address some of those points maybe in the future, because I cannot support the bill the way it is.

[Brian Jean, Conservative, Parliamentary Secretary to the Minister of Transport]

Mr. Speaker, I am pleased to speak to the bill. I do not support it as it is not at all well thought out because of what it does and, more specific, because of some of the ramifications relating to what would happen if the common law was codified.

I know the member has passion for this issue and has asserted it for some time. Like all members in the House, we are very interested in pursuing our own interests, and that is important. However, we also have to think these things through logically and thoroughly because of public policy considerations.

The codified version in the U.S. is in some sense a very well established principle, but it is not part of the common law, which Canada is guided by, the principles we follow and the different case law that has been decided over hundreds of years. My friend previously discussed some of the public policy considerations. I think he would agree with me that if this legislation were enacted, it would cause some circumstances that would not be in the interests of Canadians.

In particular, I had an opportunity to study media law. I studied it in Australia, so I have background in both the common law version of this type of legislation and codified law, which Australia has some semblance of as well.

What I noticed the most in studying and practising law in northern Alberta for some period of time and dealing with some cases like this, is the common law is a very good base. It takes into consideration hundreds of years of common law, and hundreds of common law cases that deal with this cannot be codified in such a simplistic manner. In essence, it comes down to that.

The idea is to have a new test for journalistic privilege. As I said, we should commend the member for his interest and passion on this subject. I do not believe it is in the interest of Canadians to rush through a bill such as this. We need to deal with this type of law on a case by case basis and journalists must prove a valid privilege before being exempted.

If we examine the case law and what has happened throughout the hundreds of years of history, we would find that it cannot be done logistically by this type of test. Very seldom have courts actually found a privilege worth backing and keeping.

American qualified privilege is a statutory test and has been effective. However, if we examine the case law, we will see that it has not been as effective as the laws in Canada under common law. This leads to uncertainty.

For instance, one of the main concerns I have with the legislation is it would override all other federal legislation. If that is the intent of the member, I suggest it is a disturbing intent and one that has not been very well thought out. It would also override provincial and territorial legislation that incorporates federal legislation.

I know I have never read all the legislation, but there are volumes and volumes of laws. I do not know if the member went through all of them, but if he did, and this is a work of art that has taken some 20 or 30 years, it would take a tremendous amount of time and resources in order to incorporate what is necessary and to review all the legislation, both federal and provincial.

I was just getting into the meat and potatoes, but I see I am out of time, which it too bad.

[The Acting Speaker, Royal Galipeau]

I am now recognizing the hon. member for Marc-Aurèle-Fortin, for his right to reply.

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

Mr. Speaker, I would like to get the unanimous consent of the House to allow the member for Portneuf—Jacques-Cartier to use two of the five minutes that I have.

[The Acting Speaker, Royal Galipeau]

Does the hon. member have the unanimous consent of the House?

[Some hon. members]

Agreed.

[The Acting Speaker, Royal Galipeau]

The hon. member for Portneuf—Jacques-Cartier.

[André Arthur, Independent, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, after 35 years in the information trenches, I firmly believe that a journalist is only as good as his sources, and these sources can never tell him about the real and significant issues, if they are afraid of being hassled by the police or the courts.

I heard all sorts of technical arguments on specific reasons why we should be suspicious about certain aspects of the bill introduced by the hon. member for Marc-Aurèle-Fortin, but I want to tell all members that there is not a single free country that does not protect journalistic sources in a strong and courageous fashion.

Another important point is that, because of the two Canadian solitudes, we do not always realize that some people enjoy a great deal of credibility in certain areas, even though this may not be readily known in the rest of Canada. That is the case for the hon. member for Marc-Aurèle-Fortin. His credibility as a criminal lawyer, as a president of the Quebec bar and as a Minister of Justice gives him the right to present a major bill as a member of Parliament, and not as a spokesman for a parliamentary group.

I will conclude by asking Conservative members to reconsider their position and to ensure that this bill is unanimously passed, when we will vote on it.