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

[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.

[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]

Mr. Speaker, that is a very good question. I had also spoken about bloggers. Even though I use computers, I am not a computer geek.

That depends. I established a fairly broad definition that can be adapted to new technologies. That is why we do not refer to the type of media but rather to the activity of a journalist. In this regard, my colleagues will certainly agree with me that this definition fully covers the journalistic activity and that the journalist is the individual who carries out this activity. 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.

I could have easily answered that we are not talking about the occasional blogger. However, out of respect for the member and the question he posed, it could cover the evolution of journalism towards electronic newspapers. In my opinion, that is important.

I would also have expected my colleague to have asked a question regarding “anyone who assists such a person”. This part—“anyone who assists such a person”—concerns the application of this section. You must realize that it is the source we wish to protect and not the journalist.

In other countries where the law has granted this protection to the source, police officers have questioned housekeepers, printers and other persons. That is why it was necessary to insert “anyone who assists such a person” in the legislation. It goes without saying that it is in the context of the preceding definition.

I would like to add something else before answering another question: it must be understood that it is difficult to craft a perfect law from the outset. During the session, the government showed us how difficult that can be. There is every advantage to having a committee examine this matter and make the necessary amendments.

[The Acting Speaker, Royal Galipeau]

The hon. member for Etobicoke North will want to keep an eye on the Chair because there is very little time left for the next question.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I would like to congratulate the member for Marc-Aurèle-Fortin for introducing this bill for debate in the House. The member for Marc-Aurèle-Fortin has extensive experience in public safety.

I understand what he is trying to accomplish and I think I am generally in agreement.

When it comes to matters of national security and there is someone in the Department of National Defence or the Department of Foreign Affairs who reveals something that is clearly a matter of national security or a threat to national security, I am wondering if the member for Marc-Aurèle-Fortin could comment on what sort of protections would be available or would not be available in circumstances like that.

[The Acting Speaker, Royal Galipeau]

The member for Marc-Aurèle-Fortin has 50 seconds to respond.

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

Mr. Speaker, I addressed that in subclause 5.

Let us put ourselves in the position of the judge applying the criteria I am suggesting. First of all, what is required? It depends on the circumstances. It could be the outcome of the litigation or it could be a libel suit against a third party.

I do not think that some who commits libel or tries to manipulate the media deserves protection. In examining the criteria set out in subclause 5, we can see that the judge would conclude that he must order that the source be disclosed. However, if we are not sure, we could always make amendments in committee to be certain.

[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.

[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.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I support and speak in favour of this bill, along with my party.

Many things that have been discussed and put forward in support of this bill, but some of those ideas and concepts bear repeating. I hope to touch on a couple of other facets of the bill that are worthy of underlining.

I will say at the beginning that we do support this bill and, if there are ways to improve it, it will be done at committee.

One of the things that is most disturbing in any democracy is any attempt to close off or shut down the freedom of the press. Members will know of the most recent events around the world where the rights of the press have been suppressed. I think of the recent situation that we are watching with great unease in Burma. When we look at the freedom of the press, which seems to be challenged around the world these days, and certainly this has been documented, journalists are having a harder time doing their jobs.

Many of us in this place from time to time might disagree with how journalists contemplate or exercise that freedom but no one in this place would be in any way critical of their right to have an opinion and to ensure it is unfettered, with some obvious qualifications and responsibilities.

I say that in general because this is too important an issue to play partisan politics with. This is a foundation of our democracy, that is, the freedom of the press and the freedom of those who are practitioners in the fourth estate, to ensure they are able to do their jobs without the state interfering unnecessarily.

Therefore, the bill in front of us is critical. What is being attempted here meets the nod test from us but we need to ensure there is more clarity for judges, that there are cleaner and clearer guidelines for judges.

We have mentioned the case of Juliet O'Neill from the Ottawa Citizen. Many of us, not only in my home town here in Ottawa, were aghast at what happened in that case. I think people right across the country and indeed those who were following the story internationally, were surprised, saddened and very concerned that this could happen.

If we look at what journalists' responsibilities are, they have many, but they have a responsibility to protect sources at times. We see this not only in the field of journalism but in the field of litigation. We see it with lawyers and with doctors. We actually see it with those who are from faith communities, that there is some delegation of trust. I think most people understand that there is an understanding and a responsibility of confidentiality.

What is the responsibility of confidentiality, in this case of journalists, and the role of the state for reasons of national security? How are those two things dealt with? How do we navigate those waters?

The bill sets out to lay down some criteria that is important. A colleague from the Bloc has already spoken about this. The first couple of paragraphs of the bill are more or less descriptive and then we get into the meat of it, particularly when we get into section four, and that is the power of the judge. Judges may, on their own initiative, raise the potential application of subsection three and ask the prosecution and the defence and any other party to present an opinion on the matter. I think that gets things going.

Then we get to subsection five, which reads:

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....

There is where we get the required clarity, the clarity that was required certainly in the case of Juliet O'Neill and other cases. We see from today's Quorum that some La Presse journalists are being challenged in this very area. I cannot get into the details of the case, nor will I, because it is being debated now, but I will just point to the fact that this is an ongoing concern. Certainly it does not just affect journalists like Juliet O'Neill, but at present also some journalists at La Presse.

It means that this sequence of events where the judge must follow the laid-out criteria is what has been missing. Again, if there are other facets that need to be dealt with at committee, then so be it.

Proposed subsection 39.1(7) regarding disclosure states:

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.

That is another important facet that had not been addressed. When we move on to proposed subsection 39.1(8) about search warrants, that certainly was a cause of concern before. It deals with the Criminal Code and talks about the criteria and the further clarity required.

In essence, the bill is trying to fine-tune the debate we have had since freedom of the press has existed, and that is the time honoured tradition of those who are in the fourth estate being able to practise their trade on the one hand and on the other hand to make sure that if there are issues of national security, they have worthy protection, as well.

Because of the times in which we are living, it is of absolute critical importance that a balance be struck, and that the clarity that is needed for judges be provided. I say that because of some other considerations we will have before the House, in particular, Bill C-3, which was tabled today.

We have had concerns about how we deal with border security, as recently as yesterday when a retired colonel from the American military was not allowed into our country because of being on an FBI watch list.

Freedom of the press and freedom of expression are critical in the atmosphere in which we are living. They are the foundation of our democracy. If we are not able to find the balance now, we will regret it later. If journalists are not able to protect their sources, we know what will happen. We have seen it around the world and in history. People will no longer come forward. It would not only affect members of Parliament in not being able to find critical analysis because information would not be shared, but citizens in general would not have the information they need to hold institutions to account.

I will end my comments with the plea that we need to follow up on this bill quickly. We need to support it in a non-partisan fashion because it is so important that all those in the business of journalism be able to practise their profession without any fear.

We hope that the government will come forward on one other aspect that needs tweaking, and that is on freedom of information. The government promised after the passing of Bill C-2, the accountability act, that it would act on that. It is one thing to protect sources, but it is another thing to have access and a window to the business that government does.

While we need speedy passage of this bill, which is something we support, we also look forward to and hope that the government will fulfill its promise to bring forward changes to the freedom of information act. Until that time, we know that it will be difficult for journalists not only to ply their trade, but to have a clear window on what government is doing.

[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—

[The Acting Speaker, Royal Galipeau]

Unfortunately, I must interrupt the hon. member.

Resuming debate, the hon. member for Cambridge.

The hon. member for Cambridge knows that he has 10 minutes of which there are 3 today.

[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—

[The Acting Speaker, Royal Galipeau]

The time provided for the consideration of private members' business has now expired and the order is dropped to the bottom of the order of precedence on the order paper.

When the bill returns to the House, there will be seven minutes left for the hon. member for Cambridge.

It being 2:30 p.m., the motion to adjourn the House is now deemed to have been adopted. The House stands adjourned until Monday next at 11 a.m., pursuant to Standing Order 24(1).

(The House adjourned at 2:31 p.m.)

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.

[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.

[The Acting Speaker, Royal Galipeau]

The hon. member for Marc-Aurèle-Fortin has the floor for his right to reply.

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

Mr. Speaker, since I do not have much time left, I will cut to the chase. First, I would like the members to realize that a great deal of work has been put into this bill. In my view, a well written law is clear and concise and, at the same time, has more to it than meets the eye.

I was struck by the comments of one speaker who seemed to think that journalistic sources are the same as police informants. That is not at all the case. When a confidential source speaks to a journalist, I do not believe they commit an offence. No matter, the journalist investigates on the basis of the information provided by the source. When the story is published, he and his newspaper take responsibility for it on the basis of the evidence collected, independent of the source that pointed them to it. It is not the same issue.

I urge those who criticize the definition of the term “journalist” to read it and then read it again. I could provide thirty definitions taken from all over: they would all provide the same meaning. Journalists do not wish to be members of a professional corporation because they believe they exercise a right that should belong to every individual. Everyone acknowledges that true journalists are defined by their activity, which is to seek out and collect information in order to disseminate it to the public. Thus, it is the best definition we can provide.

I wanted to add the phrase “or anyone who assists such a person”—that is, the journalist—to the legislation because of the experiences in other countries. I would like to point out again that such laws exist in almost every democratic country to which we generally compare ourselves. In some of these countries, the police have hired cleaning ladies or other individuals to obtain information from these journalists about their sources. That is why protection given to the source must be complete and extended to anyone who assists journalists.

There is something odd I would like to mention. I sometimes wonder if the rest of Canada is really listening to us. In Quebec, the profession has almost unanimous support. Both the Fédération professionnelle des journalistes du Québec and the Quebec bar have stated they support this bill. I consulted Quebec experts who told me, among other things, that the bill is great. First of all, rather than the 500 pages of jurisprudence that a judge must consult, we finally have something that provides a good summary—

[The Acting Speaker, Royal Galipeau]

Unfortunately, I must interrupt the member.

It being 7:29 p.m., the time provided for debate has expired. The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Royal Galipeau]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Royal Galipeau]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Royal Galipeau]

In my opinion the nays have it.

And five or more members having risen:

Pursuant to Standing Order 93, the recorded division is deferred until Wednesday, November 28 just before the time provided for private members' business.

The House resumed from November 21 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.

[The Acting Speaker, Andrew Scheer]

It being 5.30 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-426, under private members' business.

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #16

[The Deputy Speaker, Bill Blaikie]

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Justice and Human Rights.

(Bill read the second time and referred to a committee)