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.

Journalistic Sources Protection Act

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, I am pleased to be able to speak to this situation, because it is in the context of events that occurred in Quebec.

Last spring, Quebec media revealed that journalists had been under police surveillance, meaning that their telephone conversations had been tapped. Of course, people were shocked to learn about it. It was reported that journalist Patrick Lagacé was not the only one who had been under surveillance, and that other journalists had been under police surveillance, not just for a few weeks, but for periods of four to five years. They included journalists from Enquête, even Alain Gravel. This was clearly a serious situation.

Many people were shocked, and after some hesitation, the Quebec government decided to launch an inquiry into the protection of journalistic sources on November 11, 2016. Other measures were also adopted by the National Assembly of Quebec, including a unanimous motion stressing the importance it attaches to the protection of journalistic sources.

Quebec Minister of Justice Stéphanie Vallée stated:

The new disclosures are extremely serious, and as mentioned, it is essential that the public trust in its public institutions, in all institutions.

Thus, it is important to remember the principle behind the protection of journalistic sources. It has to do with public trust in its institutions. A number of scandals have been uncovered by journalists who did a tremendous amount of investigative work, and by sources who never would have spoken up without the anonymity provided by the protection of journalistic sources. Without it, some of those stories might never have come to light.

It is really important that those kinds of things be made public, because it helps us move forward and create a healthy democracy. Without the work of journalists, there might even be more wrongdoing. Thanks to journalists, who do rigorous investigations and often get information from sources who could face serious consequences if their names ever got out, we have access to that information. Since people know that some oversight exists, perhaps this keeps them more honest in their work.

Given that the commission of inquiry is mandated to make recommendations on police practices and ways to protect sources, I think this could produce very positive results. Since the bill before us addresses only about 75% of the problem, it will be important to follow up on it, especially after what we have learned from Quebec, in order to settle things for good and address other protections that could prove necessary.

After what happened in Quebec, something needed to be done. People realized the magnitude of the problem, and since the federal government did not want to create its own commission of inquiry to protect journalistic sources, claiming that these problems did not exist at the federal level, it was important to find a solution. That is why Bill S-231 was introduced in the Senate.

This bill is based on another bill from 10 years ago. There was an attempt to solve this problem 10 years ago, but unfortunately, thanks to our sometimes inefficient parliamentary process, it was not successful, because bills died on the Order Paper, work stopped and started, and there were back-to-back minority governments.

Back in 2007, all political parties were unanimously in favour of taking action. Unfortunately, no action was taken. Then we learned that journalists had been spied on for years. That is terrible, but I applaud Mr. Ménard for the work he did 10 years ago to protect journalistic sources.

Bill S-231 resurrects most of the measures in Bill C-426, which was introduced 10 years ago, and it adds other measures to keep it current because new laws have been passed, so some additions were necessary to keep journalistic source protection up to date.

Let us consider the true ramifications of these revelations. In light of the revelations about the police surveillance of journalists, Canada's international ranking in terms of freedom of the press dropped 14 spots to 22nd. This had an extremely negative impact on Canada's image, a country considered to be rather free. It came to light that behind the image, the police were allowed to spy on journalistic sources.

The thing that really got me in all of this was how long it went on for. The spying did not just go on for a short period of time, for a week or two because the police thought that the journalists were in contact with certain people. The police were listening in on the telephone conversations of renowned journalists in Canada for four or five years. They listened to all the details of the journalists' lives. It makes no sense. There was no specific timeframe involved. It was truly an ongoing wiretap to try to gain some information. When we look at this mess, the first thing that comes to mind is that we should have gone further to solve this problem 10 years ago.

Now, 10 years later, it is vital that we pass the bill. It will not solve the problem in its entirety, but I estimate that it will address at least 75% of it. That is why we cannot allow parliamentary procedure to again prevent us from taking action on this problem.

It would have been good for the present government to introduce its own bill to resolve this issue. This is a members' bill. However, for the sake of Canada's public image, we can no longer afford to not act on this issue. Freedom of the press is a fundamental principle in Canada and Quebec. Our journalists deserve to know that they can do their job without being spied on with impunity. Furthermore, Quebeckers and Canadians deserve to know that they are protected when they speak to a journalist, and that there will be no fallout.

With respect to employment insurance, we remember that in 2013 we learned that investigators had quotas for recovering payments from the unemployed. Had the journalist not investigated this story and had there been no guarantees to protect the source, we perhaps would never have learned about this. For that reason, it is important to protect our sources. Otherwise, people will not dare blow the whistle on such situations. When people no longer report such situations out of fear that they will not be able to remain anonymous, and when this has consequences, we stop making progress and democracy suffers.

Given that the protection of sources is closely linked to democracy, it is vital that we address this issue now. I hope that we will do so once and for all and that it will not take another 10 years.

[The Chair, Conservative, Art Hanger]

--which updates the Youth Criminal Justice Act; the impaired driving study report; or private members' bills, BillC-426, Bill C-484, Bill S-207, and Bill S-213, which have been referred to this committee.

I would like to turn everyone's attention to a recent and most unprecedented statement by the Speaker of the House, which is aimed directly at our committee.

[Erik Vanchestein, Lawyer, Bar Member, Barreau du Québec]

Mr. Chairman and members of the Standing Committee on Justice and Human Rights, I am pleased to appear today on behalf of the Barreau du Québec to discuss Bill C-426. I want to thank the Committee for inviting us to take part in this important discussion.

The Barreau du Québec has had an interest in the question of protection of journalistic sources and journalists' testimony for several decades now. In 1988, in a brief prepared in response to a policy proposal aimed at amending the Loi sur la presse du Québec, the Barreau du Québec suggested provisions intended to set parameters regarding the testimony of journalists, seizures and searches of journalistic materials and also to protect journalistic sources. It supported specific principles: the free flow of information must be ensured by protecting journalistic activity; the public interest justifies the protection of journalists' confidential sources of information; it is in the public interest for justice to be done and material evidence providing for fair resolution of litigation or conclusion of an inquiry to be available.

Consequently, there is a need to seek the appropriate balance between those two sides of the public interest: the free flow of information, on the one hand, and fair resolution of a dispute or conclusion of an investigation or inquiry, on the other. A court would seem to be the only appropriate forum for ensuring that there is that balance.

The Barreau du Québec's recommendations included: maintaining the rule regarding the compellability of journalists, at the same time limiting their testimony to only those cases where they could play a material role and where it had been demonstrated that evidence of the facts could not be secured by other reasonable means.

Another recommendation was to prohibit disclosure of seized journalistic material likely to reveal the identity of a confidential source, even if the content was of material importance, unless it could be established that the public interest required that the source's identity be disclosed.

Finally, it was suggested that a publication/dissemination presumption be established, by means of the simple filing of a journal or video-audio tape, in order to avoid the need for multiple testimony by journalists for the sole purpose of establishing that the information was published or disseminated. We note that the bill tabled by the member for Marc-Aurèle Fortin, Mr. Serge Ménard, reflects the spirit of those recommendations.

Also, in May of 1990, the Barreau du Québec participated in the development and signature of a memorandum of understanding with the Fédération professionnelle des journalistes du Québec, the Fédération nationale des communications and the Conseil de presse du Québec. That MOU laid out a framework for the process, as well as certain principles that the signatories defined as follows:

1. the need for legislative intervention as regards the testimony of journalists and seizure of journalistic material is a function of the public's interest in journalists' retaining access to all sorts of information;

2. it is also in the public's interest that justice be done, that conclusive evidence leading to fair resolution of litigation or the conclusion of an inquiry or investigation be available;

3. it is the journalistic activity, based on which the right to freedom of the press is exercised, rather than the individuals who engage in that activity, that needs to be protected, in order to ensure that the public has access to comprehensive information with respect to all matters on which citizens are asked to express an opinion;

4. it is possible, without granting privileges to journalists who must, like all other members of the public, continue to be compellable witnesses, to pass legislation that preserves the conditions under which a journalist must exercise his or her profession, while at the same time respecting the imperatives associated with the administration of justice.

This MOU contains a legislative proposal that lays out the circumstances in which a journalist's testimony may be used. Some of the points raised are as follows:

1. In the case of testimony dealing with facts gleaned by journalists in carrying out their duties, but which were neither published nor disseminated, such testimony should be limited to only those cases where it is of material importance to the resolution of litigation, or where it has been demonstrated that evidence of the facts cannot be secured by any other means;

3. in the case of testimony involving disclosure of a confidential source of information, journalists should not divulge the identity of the source, even if disclosure is of critical importance to the resolution of litigation, unless the court believes that the public interest requires that the source's identity be revealed: in such cases, the judge will have to render a decision based on both facets of the public interest—namely, resolution of the litigation and freedom of access to the information; in establishing the appropriate balance, the court should also consider all the consequences of the journalist's testimony, particularly for sources themselves, and immediately intervene for the purposes of weighing the two dimensions of the public interest when a party, or the journalist who is being asked to testify as to his or her confidential sources, fails to oppose it.

5. in the case of journalistic material that has already been published or disseminated, that a publication or dissemination presumption be established, through the simple filing of a journal or video audio/tape [...]

Once again, these recommendations are echoed in the proposed provisions of Bill C-426.

The Barreau du Québec believes that this bill fosters the free flow of information, by preserving the right to a fair trial, which are two fundamental rights. Indeed, journalists must be able to freely collect all information that is relevant in conveying news to the public. Also, persons appearing before a court of law are entitled to aduce any and all evidence that allows them to defend themselves.

The bill establishes the principle that journalists cannot be compelled to disclose in court their unpublished documents, unless they are of material importance to resolving litigation or cannot be introduced in evidence by any other means. In cases where the identity of a confidential source is at stake, the judge should ensure that disclosure is in the public interest, considering the outcome of the litigation, the need for the free flow of information, and also the impact on the source of disclosure of his or her identity.

Justice La Forest of the Supreme Court of Canada ruled in Radio-Canada v. Lessard that freedom of the press is critical in a free society and includes the right to disseminate news, information and opinions. Information collection could be seriously hindered in many cases if the government had unreasonably easy access to information in the possession of the media. The press should not be turned into a police investigation service. The fear that police could gain easy access to a reporter's notes could represent a hindrance for the press in terms of information collection.

Therefore, the Barreau du Québec believes that this legislation is an appropriate response to the repeated request made by signatories of the 1990 MOU in terms of providing a legislative solution that would establish appropriate parameters for the use of a journalist's testimony, as well as protecting journalistic sources.

Thank you. We are now available to answer your questions.

[Superintendent Jennifer Strachan, Acting Director General, Community, Contract and Aboriginal Policing, Royal Canadian Mounted Police]

Thank you very much, Mr. Chair and committee members and fellow invitees. I'd like to thank you for the opportunity today to speak before you. My name is Jennifer Strachan, as already mentioned. I'm an RCMP superintendent in charge of operational policy and programs here at national headquarters for the RCMP.

My purpose today is to provide you with information on the RCMP perspective relative to the proposed Bill C-426 related to the protection of journalistic sources.

The RCMP respects the work of professional journalists and understands the importance of protecting sources in certain circumstances. We believe the common law principles currently afforded a journalist in protection of their sources is critical to their profession.

Journalistic standards and practices are not legally binding in the way standards are for doctors and lawyers; however, at least one nationally recognized journalistic organization encourages its practitioners to default always to transparency in their reporting and only resort to withholding sources' names in extraordinary circumstances. RCMP members need to challenge journalistic protection of sources on very rare occasions, and since journalists should resort to confidentiality practices as sparingly as possible, it would appear that problems may not arise very often. With that in mind, it should not be difficult to find ways to avoid working at cross-purposes.

There are several amendments we would like to see that would make the bill clearer and more manageable. I understand the originator of the bill has already proposed amendments to Bill C-426C-426, and we see this as a positive step in finding an acceptable solution to what we consider critical issues.

Strict and clear definitions of terms such as “journalist” and “source” are very important, as these terms could otherwise be interpreted so widely as to hinder normal police investigations. Ambiguity exists in this regard; for example, bloggers encouraging hate crime or underground websites propagating beliefs unacceptable in Canadian society could realistically fall under the current definition.

The protection proposed by this legislation would also extend to anyone who assists a journalist. This could offer protection to people who, for various reasons, should not be given such a privilege.

The RCMP is not in favour of conferring privileges upon journalists that are similar to solicitor-client privileges for lawyers. No other profession, not doctors or priests, has such legislative protection, even though those two groups have complex admission and qualification criteria for anyone seeking accreditation. So far, this kind of professional standard does not exist for journalists, and the bill implicitly seeks to confer a privilege on them that is not recognized by law.

In addition, based on these facts, we must be mindful that legislation of this nature, for journalistic protection, could open the door to other professional groups who might seek similar recognition.

Under the proposed bill, the police would be required to investigate all other sources of potential information prior to considering a search warrant on a journalist's possessions. This broad requirement could compromise public safety and cause undue delay while police attempt to meet the criteria of the bill.

Any impediment to obtaining information about the identity of a perpetrator, such as a journalistic claim to confidentiality, could result in the compromise or destruction of evidence, for example concealment of the whereabouts of potential victims, or further harm to victims.

Victims' rights advocates should be made aware of this bill and the impact upon those they seek to represent. They should also be afforded an opportunity to voice their opinions on potential ramifications.

A further impediment would be the time police would have to go about meeting the proposed bill's burden of proof to obtain this type of information, as already mentioned, in time-sensitive cases. This is one example in which police operations could be affected.

Currently, legislation allows for a balancing of interests between the public, police, and journalists under the Criminal Code of Canada and common law. Justices have the ability to order disclosure where a party can prove that the public interest in disclosure outweighs the public interest in non-disclosure. For these reasons, I would suggest that the clauses pertaining to search warrants be removed or significantly revisited within the bill.

Legislation already exists that addresses seizure and securing of evidence. This includes search warrants, information to obtain and the ability to seal search warrants, as well as reports to justices on evidence seized on form 5.2. Already these processes are very complex and have their own set of rules, and in the past they have been able to manage expectations of the criminal justice system.

The process of filing a return, which is a form 5.2, manages the activities of law enforcement in relation to the execution of search warrants and provides an opportunity for the respondent to contest the detention of items seized. Respondents can also file an application to quash a search warrant.

In addition, as it relates to protection of the interests of a potential source, police agencies do not disclose evidence to the public while investigations are ongoing unless circumstances, such as imminent risk of death or grievous bodily harm, make disclosure necessary. If the police were to obtain information from journalists and were worried that the disclosure of that information would cause harm to their source, it would be handled with the same level of confidentiality as all other evidence.

In a democratic society, the work of the police is work on behalf of the people. Our goal of community safety and security is shared by all law-abiding citizens. Additionally, a journalist strives to serve communities by providing information, warnings, news, and entertainment that improves our quality of life as a society. In fact, we often work together in that regard.

These two sets of objectives are not incompatible. Legislation to clarify those potential instances where conflict could arise and to provide direction for both parties gives us an opportunity to understand how the relationship between the police and journalists can function without undue conflict.

Thank you very much.

[D/Chief Clayton Pecknold]

Thank you, Mr. Chair and honourable members. Thank you for the opportunity to speak to you today.

Many of you will know that CACP appears before your committee and before the Senate on a wide range of bills. In fact, members of our association have appeared before this committee on several of the bills you have dealt with recently, and so have my colleague and I, as you recall.

This is the first time, to our recollection, that we have appeared before you concerning a private member's bill. We ask that you notice that the CACP is here, because we wish to bring your attention to some quite serious concerns we have with the language of this bill.

Before we comment further, let me state first that the CACP understands the motivation behind Bill C-426. The press and the journalists who operate within that estate are a vital part of a free and democratic society, holding government and its institutions to a high degree of accountability and public scrutiny.

We in the policing community know very well the importance of public accountability and the service provided to our citizens by the media. Clearly, to do that job effectively, journalists must work free from political or other interference. It is important to state at the outset that the police community does not object to the principle of journalist privilege. It is in fact currently recognized in this country as a common law principle.

Yet it is also important to note that the codification of such a privilege should be suited to address precisely that privilege and not used to potentially shield illegal communications or documents from legitimate law enforcement investigations and prosecutions and thus ultimately discredit the very values it is meant to protect.

As the committee knows very well, however, in most aspects of our society and the legal framework under which we live, there's a need to find the appropriate balance between the rights and powers of one institution or activity as against those of the other. Drafters of legislation and you, honourable members, must carefully weigh that balance when you bring laws forward into legislation.

In this case, with respect, some important modifications to this bill are needed before it meets that test. Permit me to elaborate after making two general points.

Our association notes that to date the courts and legislators have declined to add to the class privileges afforded to, for example, solicitor-client communications and informant privilege. In our view, that decision should be formulated after the appropriate level of public policy consultation and debate. That has not occurred in this case, and in our estimation it should. There has been insufficient debate, and we would urge you to consider affording that opportunity.

The second general point is that we believe the bill as presently drafted attracts a series of unintended consequences. Some of the language is overly broad, imprecise, and ambiguous and may therefore become a hindrance to the effective administration of justice. Such a result, in our respectful submission, defeats the balance of interest that you, honourable members, must so carefully maintain. That is the balance between the public good of a free and vigorous press and the equally important public good of an effective criminal justice system.

As stated, we believe the intention behind the bill is to facilitate true journalism and all of the public good that comes from a free press. In order to achieve that goal, it is important firstly that the bill aim at true journalism. Today many persons, especially by using the Internet, may be called journalists or “the press” because they disseminate information to the public, yet may not merit the journalist's confidential source privilege. Many websites promoting racism, hate, or drug cultivation, for instance, would qualify under the notion that they're engaged in the dissemination of information to the public, yet would the average Canadian call them journalists?

Since this bill purports to do that which the courts presently determine on a case-by-case basis, the wording and definitions within it are crucial. Some jurisdictions where similar laws have been enacted have chosen to provide a definition, while others refer to notions of profession, gain, or employment as a way of putting appropriate boundaries around who might be considered a journalist and therefore be entitled to assert the privilege. We acknowledge the amendment suggested yesterday by the proponents of this bill as being a step in that direction.

In addition, we also respectfully submit that it should be made very clear that illegal documents or communications are excluded from the application of the act. As the Ontario Court of Appeal very recently said in the case of the National Post:

Although, in pursuit of their constitutional right to gather and disseminate the news, journalists are entitled to protect their sources, that entitlement loses much of its force when journalists use it to protect the identity of a potential criminal or to conceal possible evidence of a crime.

As the court said, the press, like anyone else, should have an interest in seeing that crimes are investigated and prosecuted. Society expects as much. Instead of furthering that interest, however, the respondents, in that case, were shielding a potential wrongdoer from prosecution for a serious crime by refusing to deliver to the authorities the items representing the actual actus reus of the offence. But again, we notice that the proponent of the bill wants to introduce what we understand to be a crime exception, and we submit that such an amendment is very necessary.

Furthermore, we think the recent decision in the National Post case shows that the case-by-case approach works very well in Canada. If, however, the intent of this legislative body is to codify the recognition of journalistic privilege, we see no necessity to introduce a complete class privilege, or a de facto class privilege, by reversing the burden of proof as found in proposed subsection 39.1(6) of the bill.

Permit me, if you will, to summarize a few points. First and foremost, the CACP believes the present state of the law as most recently applied in the National Post case applies the appropriate balance between the state's legitimate need for effective public security and an unfettered and free press. This means that the present application of a journalistic source privilege is being applied appropriately on a case-by-case basis. The law, in our respectful submission, is working well.

Secondly, if it is the intention to codify the present state of the law and not to extend the class of privilege, the bill as presently drafted should be improved in order to meet this aim. Any intention to create a new class of privilege must, in our view, be done after a much more enhanced period of public debate and consultation.

Thirdly, in order to avoid unintended and detrimental consequences, some amendments to the language are required. As stated, the definition of who's a journalist needs refinement; as well, some language that clearly states that unlawful communications or when the communication constitutes the actus reus of an unlawful act—for example, child pornography or hate-promoting communications—cannot be privileged, or where the journalist is engaged in illegal activity, for example, as a co-conspirator, and receives information from a source in furtherance of an unlawful activity. We note that while this might be implied by the common law, as it is with solicitor-client privilege, solicitor-client privilege as applied to the criminal law is created by the common law, so the common law exclusions clearly apply. It is much less clear that common law exclusions would automatically apply to a statute-based journalist privilege, unless clearly stated so in the statute.

Clearly, the goal behind the bill is laudable. The effect of the bill, though, and the imprecision of some of the drafting leaves those laudable goals in peril. We believe journalists may also share our concern. They too have an interest in protecting the integrity of their profession from the stain of hate-mongers or child pornographers, hiding behind the cloak of a claim of privilege that the courts, you honourable members, and our fellow Canadians neither sought nor wished to grant them.

Thank you. Those are my remarks.

Mr. Pichette will now make some closing remarks.

[Pierre-Paul Pichette, Assistant Director, Corporate Operations Services, City of Montreal Police Service]

Mr. Chairman and honourable members of the Committee, my name is Pierre-Paul Pichette and I am Assistant Director of the Montreal Police Service. As you just noted, I am accompanied today by Mr. Clayton Pecknold. We appear before you today representing the Canadian Association of Chiefs of Police, as both of us are Vice-Chairs of the organization's Legislative Amendment Committee. I also want to take this opportunity to convey the greetings of our President, Mr. Steven Chabot, who is the Assistant Director General of the Sûreté du Québec.

The Canadian Association of Chiefs of Police represents the management of police and law enforcement agencies in Canada. Ninety per cent of its members are directors, assistant directors or other senior managers of various Canadian police services, both at the municipal and federal levels. Our association's mission is to promote the effective enforcement of Canadian and provincial laws and regulations to ensure the safety of all Canadians.

In that context, we are regularly called on to take a position on legislative reforms that are contemplated. Indeed, we have always been enthusiastic participants in consultations organized by government with respect to changes in the criminal law, just as we are doing today.

I am going to turn it over now to my colleague, Mr. Pecknold, to present our position on Bill C-426. Mr. Pecknold will make his presentation in English. After that, I will have some closing remarks.

[Rob Moore, Conservative, Fundy Royal, NB]

Okay.

Ms. Markham, on the issue of the override, how encompassing is that? When I read the bill--and I've read Bill C-426--it appears to me that this trumps everything else that's out there. Can you quickly comment a bit on the impact that could have beyond what we may be contemplating around this table right now?

[Lieutenant-Colonel Jill Wry, Director of Law, Military Justice, Policy and Research, Office of the Judge Advocate General, Department of National Defence]

Thank you, Mr. Chair and honourable committee members. It's my pleasure to speak to you today about the amendments in Bill C-426, and particularly to explain some of the practical impacts those proposed amendments would have on the Canadian Forces.

I would like to make it very clear that it's not my purpose today to question the importance of the legislation or the importance of the amendments that have been proposed, but to ensure that members of the committee are aware of some potential implications the proposed amendments have on the Canadian Forces and the Canadian military justice system. If I could classify this information, I would put it in the category that my friend Mr. Hawkes has--as unintended consequences of the proposed amendments.

First of all, as you know, the definition of journalist is defined in the proposed legislation to include any “person who contributes regularly and directly to the gathering, writing, production or dissemination of information for the public through any media, or anyone who assists such a person”.

As it's currently worded, this definition would apply to members of the Canadian Forces who are involved in activities that are not journalistic in nature. This would include members whose primary duties involve the gathering and dissemination of information to the public, such as public affairs officers. As well, the definition would include members who make regular contributions to Canadian Forces publications for the purpose of raising awareness on topical issues such as military personnel policies and information on compensation and benefits. Furthermore, anyone who provides assistance to those who gather and disseminate this type of information, such as computer technicians or administrative clerks, would also be covered by the definition.

The potential impact of having the definition of journalist apply to Canadian Forces members arises from the conflict that could emerge between the protections proposed under this bill and the obligation on military members to report breaches of discipline. Military regulations require members of the Canadian Forces to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders, and instructions governing conduct. Given the broad definition proposed for journalists, there is a real potential that conflicts will arise.

Second, as you are aware, the proposed amendments will apply not only to judicial proceedings but also to non-judicial proceedings over which Parliament has jurisdiction. Under the National Defence Act, that would include boards of inquiry, which can be held both in and outside of Canada. According to the proposed amendments, in order to compel journalists to disclose the identity of a source during a non-judicial proceeding such as a board of inquiry, it would be necessary to adjourn the proceeding and seek a judicial order. The potential logistical impact of this requirement is compounded by both the breadth of who can be considered a journalist, if the present definition is maintained, as well as the fact that boards of inquiry can proceed outside of Canada. There would be a requirement to seek an order back in Canada in order to proceed with that inquiry.

Furthermore, when determining whether it is in the public interest to compel the disclosure of a source, a judge is required under proposed paragraph 39.1(5)(b) to consider three factors, which have already been discussed: the outcome of the litigation, the freedom of information, and the impact of the journalist's testimony on the source.

The narrow construction of these factors would make it difficult to apply them in the context of a non-judicial proceeding, such as a board of inquiry, which is an investigative tool, not a tool for litigation, or to consider other potentially relevant factors, such as operational or national security, which would be very relevant in the types of non-judicial proceedings that could arise in the context of the Canadian Forces.

Honourable committee members, I would like to thank you for allowing me this opportunity to raise these practical matters with you. I'd be very happy to answer any questions you may have.

Thank you.

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order this Wednesday, March 5, 2008. The committee will be following the agenda as noted pursuant to the order of reference of Wednesday, November 18, 2007. Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants) is before this committee.

The witnesses and the presenter of this bill, Mr. Serge Ménard, will be presenting the private member's bill to the committee.

Testifying will be Joshua Hawkes, as an individual. From the Department of Justice we have Karen Markham, counsel, criminal law policy section; and Josée Desjardins, general counsel, director, national security group. From the Department of National Defence we have Lieutenant Colonel Jill Wry, director of law, military justice, policy and research, Office of the Judge Advocate General.

Monsieur Ménard, you have the floor.

Canada Evidence Act

[The Acting Speaker, Conservative, 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 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.

[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.

[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.

[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?

[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.