Journalistic Sources Protection Act

An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)

Status

Third reading (House), as of Sept. 19, 2017

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill S-231.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Canada Evidence Act to protect the confidentiality of journalistic sources. It allows journalists to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.

The enactment also amends the Criminal Code so that only a judge of a superior court of criminal jurisdiction or a judge within the meaning of section 552 of that Act may issue a search warrant relating to a journalist. It also provides that a search warrant can be issued only if the judge is satisfied that there is no other way by which the desired information can reasonably be obtained and that the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in the collection and dissemination of information. The judge must also be satisfied that these same conditions apply before an officer can examine, reproduce or make copies of a document obtained under a search warrant relating to a journalist.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Journalistic Sources Protection ActPrivate Members' Business

September 19th, 2017 / 5:30 p.m.
See context

Conservative

Gérard Deltell Conservative Louis-Saint-Laurent, QC

moved that the bill be read the third time and passed.

Mr. Speaker, this is not the first time that I have had the privilege of rising in the House, specifically to speak to Bill S-231, but I do it every time with some emotion. Having enjoyed the privilege and good fortune of being a journalist for 20 years, I am fully aware of the perils that lie ahead for the profession if, unfortunately, it cannot be practised with all the freedom bestowed upon us. Bill S-231 allows journalistic practice to be carried out in the noblest, safest, and fairest way for the public.

This is the third reading of this bill, which means that if parliamentarians agree, in a few hours, days, or weeks we will pass this very important piece of legislation that has a fantastic history.

About a year ago, misfortune befell journalists in Quebec, when it was discovered that senior journalists were the subject of police investigations and that their phones, iPhones, for example, their work tools, were being tapped. We learned that people whose job was to inform Canadians had been under surveillance far too regularly.

As soon as word got out about Patrick Lagacé, we learned that many other leading journalists in Quebec had been the subject of investigations either by the Sûreté du Québec, the Montreal police, or the RCMP. They include Patrick Lagacé, Vincent Larouche, Marie-Maude Denis, Alain Gravel, Isabelle Richer, Éric Thibault, Denis Lessard, André Cédilot, Nicolas Saillant, Félix Séguin, Monic Néron, Joël-Denis Bellavance, Gilles Toupin, Daniel Renaud, and Fabrice de Pierrebourg. Those are just some of the seasoned journalists who have been working in Quebec for years and who need to gather information in order to do their jobs properly.

When they learned that all these people were under investigation and were being wiretapped, Quebeckers, particularly journalists, were shocked. That was when Senator Claude Carignan decided to draft a bill that would protect journalistic sources so that journalists would never again be prevented from doing their jobs properly.

The beauty of Bill S-231 is that it sets out clear safeguards and makes the public the primary beneficiaries of a free press.

What we are talking about is one of the cornerstones of our very democracy. We are talking about a free press and freedom of expression here in the House of Commons, but first and foremost, from coast to coast in this country, the protection of journalists' sources. That is why the quality of the bill tabled by the hon. Senator Claude Carignan in the upper House, two months ago months ago, cleared the way and gave a clear mandate and clear signal to all whistleblowers in this country that when they talk to a journalist, they are free to do that and no one will interrupt them in the process.

This is a cornerstone of democracy. This is a cornerstone for whistleblowers. This is a cornerstone of journalism, so that is why I am so proud to be the godfather of the bill here in the House of Commons, thanks to the studious and very well done job by the hon. Senator Claude Carignan in the upper House.

Let us now take a detailed look at the issue to see what is so important about this bill and why it is so good for the future of press freedom in Canada. There are four key parts to this bill. First and foremost, it protects not journalists themselves but journalistic sources, the whistleblowers who uncover wrongdoing and want to tell a journalist about it.

The bill also defines a journalist. Anyone can write the odd blog post and call themselves a journalist, but a real journalist is someone who meets certain criteria, which we will get into later.

If a police officer wants to conduct an investigation—and they are in no way being prevented from doing so—they are given even better tools to do that.

In the future, superior court judges will be able to issue warrants to the police. I will be sharing some examples later that are a little disturbing, to say the least.

Lastly, it reverses the burden of proof. Police officers will have to prove that wiretapping is absolutely vital to the investigation. That reverses the burden of proof. Those are the four key parts of this bill: protecting sources, defining who is a journalist, enabling superior court judges to issue warrants, and placing the burden of proof on the police. We must take the time to look at all four of these closely.

I will begin by talking about protecting sources. I mentioned it briefly earlier, but it is fundamental. In plying their trade, journalists are not immune to making mistakes, but when journalists want to do a thorough investigation, they must have the freedom to do so and, more importantly, the ability to speak openly to someone who wants to share information. They also need to have assurances that that individual will not be targeted by a few people with bad intentions. Sources are therefore protected, but journalists themselves are not. Why? Because journalists are still seen as vectors in all this. One of the key components of this exercise is based on the source, and that is why we want to protect sources. This is why we also realize that the only way journalists can do their jobs properly is if their sources are protected.

Some people may call themselves or see themselves as journalists, which can be problematic. I would like to read the definition of “journalist” as it appears in the second paragraph of subsection 39.1(1) of the bill:

Journalist means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person.

Clearly, no one can suddenly begin calling themselves a journalist overnight. They must practise that trade for a media outlet or in a serious, recognized, and established sector. It must be their livelihood. The definition clearly indicates that not just anyone can call themselves a journalist. This is crucial because, as a journalist myself for 20 years, I remember being angry and annoyed at times when people claimed to be journalists, when in the end, apart from some friends who saw their scribbles, they definitely were not journalists. With the amazing and spectacular evolution of the media and the means of communicating information, anyone can quickly publish something online, but that does not mean they have the serious and rigorous fundamental skills needed to practise the profession correctly and responsibly.

I mentioned earlier that warrants authorizing police to investigate will now be issued by superior court judges. That is the third key part of the bill. Again, the police will never be prevented from doing their job properly or from stopping evildoers from doing bad things.

We are protecting whistleblowers, but at the same time, we are also protecting police officers, who need to do their due diligence. The difference is that the police will have even greater moral authority whenever they need to intervene, because they will have received authorization from a superior court judge.

Let us take the example of the Montreal police, better known as the SPVM. Does the House know how often the SPVM was given permission to investigate when it was asking so-called justices of the peace? Fully 98% of the SPVM's applications for warrants to investigate were granted. Is there even any point asking a justice, if they are going to say yes 98% of the time? I do not mean to put down those serving as justices of the peace, as their work is important and essential, but when it is a question of listening in on conversations between a journalist and a source, we need to make sure the decision lies with an experienced superior court judge.

In fact, this will give the police even more authority to do their job. Bill S-231, introduced by Senator Claude Carignan, strikes just the right balance. Yes, this bill protects the source, but on the off chance that a police officer needs to conduct an investigation into potential wrongdoing, then the officer will also have the moral authority to do so, because he or she will be armed with a warrant issued by a superior court judge.

We believe that strikes the right balance.

The last point I want to address is the reverse onus. Again I will cite the bill, specifically clause (9) on page 3, regarding the burden of proof:

A person who requests the disclosure has the burden of proving that the conditions set out in subsection (8) are fulfilled.

The idea behind this is to ensure that everything is legitimate. People cannot just pretend to be journalists, nor can people expect investigations to always be conducted right away or granted by lower court judges 98% of the time. These things have to be done properly. In the end, the police officer has the burden of proof to ensure that the entire process is done correctly and legitimately.

When the bill was introduced in the Senate it obviously caught the attention of journalists, but also of observers. I will quote a few people who were enthusiastic about the initiative, including the editor of Le Devoir, Brian Myles, who commended the senator “for achieving a miracle by generating an all-but-consensus among media owners and editors in Quebec and Canada”.

Tom Henheffer is the executive director of Canadian Journalists for Free Expression. In an article on April 12, 2017, he said, “Senator Carignan’s bill is the beginning of full legal recognition for the role that journalists play in serving the public and protecting democracy. The Liberal government must offer its complete support”.

So far that has been the case, and may it continue to be for the remaining hours of this debate.

The Globe and Mail's David Walmsley said, “We’re here because [we] are facing enormous threats”.

They are facing enormous threats when it comes to protecting sources. The Globe and Mail has spent up to $1 million in the past few months protecting journalistic sources. Today we are witnessing the culmination of a very important exercise that is of great value to Canadian democracy, since we are at third reading stage of the bill.

In the last few months, we have seen a threat to many journalists who have to work correctly and protect the whistle-blowers. These people all across this country, in the public service or elsewhere, can see bad things happening and want to call the shots, want to blow the whistle like we used to say, but they must say that to journalists with the clear protection that belongs to them. This is why this bill is good. This bill is correct for journalists, but first and foremost this bill is great for Canadian democracy.

For that reason, we hope to have the support and co-operation of the entire House of Commons at this third reading stage. To date, the work has been done in a rigorous, positive, and constructive manner. There was the study in parliamentary committee where people with different views were able to provide input. I was even asked to appear before a parliamentary committee for the first time, which I enjoyed. I was accompanied by Senator Claude Carignan, the sponsor of the bill, and by another senator, the Hon. André Pratt, who was in the noble profession of journalism for decades, and had a stint as the editor-in-chief of La Presse. At the end of his career, he was a distinguished columnist at that newspaper.

I am very proud to have sat with these two parliamentary colleagues, Senators Pratte and Carignan, to push for the bill and especially for the protection of working journalists' sources. This bill is the embodiment of what must be done to protect what is very precious in our democracy, freedom of the press.

Journalistic Sources Protection ActPrivate Members' Business

September 19th, 2017 / 5:45 p.m.
See context

Liberal

Pam Damoff Liberal Oakville North—Burlington, ON

Madam Speaker, I am thankful for the opportunity to speak in support of Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code regarding the protection of journalistic sources, otherwise known as the journalistic sources protection act.

I would like to begin by thanking the Senate sponsor for his diligence and hard work on this very important bill, which aims to ensure that the protection of journalistic sources is given due consideration whenever they are at issue in Canadian courts. I would also like to thank my colleague opposite, the member for Louis-Saint-Laurent, for shepherding the bill through the House and his commitment to journalistic freedom. The bill has moved swiftly through the House, thanks to the broad support from all parties.

As we all know, this issue was brought to the forefront a little less than a year ago following events involving the use of investigative tools targeting journalists, in particular revelations that police in Quebec had obtained warrants to monitor the cellphones of several journalists. Following this incident, the Quebec government reacted swiftly and amended its guidelines and safeguards for obtaining warrants that target journalists. As a result, journalists are now listed alongside lawyers, judges, and members of the National Assembly for whom added safeguards and special protocols are in place in relation to warrant applications.

In November 2016, the Quebec government also launched the Chamberland commission to study the issue of the protection of journalists' confidential sources. The commission's hearings have recently concluded and the commission's final report is expected by next March. lt is in this context that Bill S-231 was introduced last November.

In essence, Bill S-231 proposes changes to the Canada Evidence Act and the Criminal Code to enact special regimes to protect confidential journalistic sources. The Canada Evidence Act proposals would create a unique regime applicable any time the media wished to protect a journalistic source. This new regime would codify the common law developed and interpreted through several Supreme Court of Canada cases, while introducing some added protections. For example, the bill would place the onus on the person who seeks disclosure of the information instead of the person seeking to protect the information, as is currently the case.

The Criminal Code proposals relate to how investigative tools, such as search warrants and protection orders, can be issued and executed when they target journalists. Although the goal of these proposals is to protect journalistic sources, the procedure will apply any time a journalist is targeted by an investigative tool. The bill also proposes a triage procedure that requires the sealing of evidence collected and a review by a court before the information is disclosed to the police. Finally, the bill proposes that only Superior Court judges can issue an investigative tool in relation to a journalist.

When the merits of the bill were debated in this chamber at second reading, members expressed support for the bill's laudable objective and solid foundation. Members also expressed the view that the bill could be further improved, bearing in mind the complexity of the law in this area.

This bill is being reported back to the House today with amendments adopted by the Standing Committee on Public Safety and National Security. It was a pleasure to study this bill at committee. I would like to take this opportunity to personally thank my committee colleagues from this side, as well as across the aisle, for their collaboration during the bill's study. The bill, as amended, truly reflects a multi-partisan initiative.

I will focus the remainder of my remarks on the substantive amendments made to Bill S-231 by the committee.

With respect to the amendment to the Canada Evidence Act provisions, the public safety committee deleted the override provision found in proposed subsection 39.1(2) from the Canada Evidence Act portion of the bill. The override provision was problematic because it could conflict with other federal legislation, including matters of privacy and national security. We also did not think it was necessary to give effect to the protections for journalistic sources contained in the bill.

The committee also amended the test found in proposed subsection 39.1(8) of the Canada Evidence Act portion of the bill for the disclosure of information or a document that identified or was likely to identify a journalistic source.

In essence, Bill S-231 has been amended to replace the reference to “the essential role of the information or document in the proceeding” with “the importance of the information or document to a central issue in the proceeding”, as this more accurately reflects the common law as confirmed by the Supreme Court of Canada.

The committee also improved the bill by moving the condition added by the Senate at committee at proposed paragraph 39.1(8)(c), which relates to whether “due consideration was given to all means of disclosure that would preserve the identity of the journalistic source”, to a new proposed subsection 8.1, separate and apart from the test for authorizing disclosure. I think this should strengthen the protection, since it ensures that the source's identity is protected as a separate step, even when the document in question is admissible.

The public safety committee also made a few, and in my view, important improvements to the bill's proposed changes to the Criminal Code. First, the committee amended proposed subsection 488.01(2) so that it would not apply, despite any other act of Parliament. As I mentioned earlier, such an override provision is not necessary to give effect to the protections for journalistic sources contained in the bill and could conflict with other federal legislation, including in matters of national security. Proposed section 488.03 was also removed from the Criminal Code portion of the bill, for the same reason. These are sensible amendments, and I agree with them.

The committee also added a knowledge element to proposed subsection 488.01(2). As originally drafted, this subsection would have required that a warrant, authorization, or order relating to a journalist only be issued by a judge of a superior court, regardless of whether police were aware that their investigation related to a journalist. This is problematic, because in practice, for example in relation to online crime, police may not know the identity of the person they are investigating. If police do not know that they are investigating a journalist, they cannot be expected to follow these new requirements that would have been imposed by Bill S-231, as introduced, when obtaining a warrant, authorization, or order. I therefore agree with the amendment of proposed subsection 488.01(2) to ensure that it only applies if police know that they are seeking a warrant, authorization, or order in relation to a journalist.

Importantly, the committee also amended the bill to add a new process to confirm the validity of a warrant, authorization, or order issued outside of Bill S-231's new regime—in other words, obtained in good faith under the regular process—in the event that an officer subsequently discovered that the target of the investigative tool was a journalist. According to this new process, once they became aware that the warrant related to a journalist, police would be required to, first, inform a judge of the superior court; second, refrain from examining or reproducing the evidence; and finally, seal it until the superior court judge disposed of the application. The superior court judge would have the ability to confirm the existing warrant, vary it, and impose appropriate conditions to safeguard journalistic sources or revoke the order if the judge was of the opinion that the officer knew, or reasonably ought to have known, that the application related to a journalist.

The importance of this amendment cannot be overstated, because it would allow appropriate measures to be taken to protect the confidentiality of journalistic sources, even in cases where a warrant was issued in good faith outside of Bill S-231's regime.

Finally, the last key amendment made by the public safety committee is the addition of proposed subsections (4.1) and (4.2) to proposed section 488.01 of the Criminal Code to ensure that the new test for the issuance of warrants, authorizations, or orders relating to journalists would not apply when the application relates to a journalist's criminal activity. This amendment recognizes that it should not be more difficult for police to obtain a warrant against a journalist if that journalist is engaged in criminal activity.

I believe that these targeted but important amendments are perfectly in keeping with the spirit and important objectives of Bill S-231. I hope that all members support this bill, as amended, with bipartisan support, by the Standing Committee on Public Safety and National Security.

Journalistic Sources Protection ActPrivate Members' Business

September 19th, 2017 / 5:55 p.m.
See context

NDP

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.

Journalistic Sources Protection ActPrivate Members' Business

September 19th, 2017 / 6:05 p.m.
See context

Winnipeg North Manitoba

Liberal

Kevin Lamoureux LiberalParliamentary Secretary to the Leader of the Government in the House of Commons

Madam Speaker, there are a few thoughts that come to mind right away when we are debating Bill C-231, and one of those thoughts is reflecting on Arnold Chan, and some of the things he advocated for were to bring people and parties together in terms of how we can improve things if we work together. The bill going through the committee process demonstrated just that, where we were able to take a piece of legislation and improve it, with individuals from different parties working together and ultimately seeing amendments brought forward, which has improved the legislation we are debating here today.

Freedom of the press is something we should never ever take for granted. We understand it is a fundamental pillar to good governance, to the whole issue of democracy. When I was first elected in 1988, I quickly found out the important relationship between the media and politicians. I will not go over the stories, but there were some embarrassing moments. At that time I may have had some different thoughts about the media, but I can honestly say today—with the experience I have gained over the years as a parliamentarian, whether inside the Manitoba legislature or here in the House of Commons—how important it is that we have an independent press, a press that feels it has the freedom to do what is necessary to ensure that there is a higher sense of accountability through the media on a wide variety of issues, whether it is within the political realm or any other realm on which media representatives will report.

I know when the issue first surfaced—if we were to narrow it down, and it has already been referred to—it was an incident where police officers in Quebec obtained warrants to monitor the cell phones of a fairly well known and respected journalist and a number of others. The journalist who garnered a great deal of attention was Patrick Lagacé. There was an instant reaction from coast to coast to coast that something was wrong. It did not take long for things to come together, whether it was inside the House of Commons or outside in different communities that realized this action was a serious offence against a profession that we need to ensure has a sense of independence and the ability to protect its sources.

My colleague across the way said he was a journalist for 20 years, and I am sure he speaks from experience in terms of how important those sources are. I cannot say how many times I have had a journalist come to me and ask what I would share off the record. Sometimes it is important to have those off-the-record discussions to give some depth on the issue at hand, whatever it might be. We should always be careful if we go off the record, but we find incredibly good reporters who want to be better informed and have a better sense of what is taking place behind the story.

Equally, when we look at some of the issues that are so critically important for the public to become aware of, the sources of information that make the public aware do need to be protected.

A vast majority of Canadians recognize the value of a free press. We should never take it for granted, and the Prime Minister makes sure that direction comes from the government through the different ministries and that direction is given in the mandate letters that are issued to the ministers. In the mandate letter issued to the Minister of Justice, the Prime Minister tasked the minister with ensuring that the rights of Canadians are protected and that the guarantees set out in the Canadian Charter of Rights and Freedoms are respected. The minister recognizes that freedom of the press is fundamental, that it is a Canadian value as stated in the charter. Moreover, in the spring of this year, during question period here in the House, the Prime Minister himself made a fairly clear statement indicating that the government strongly believes in the protection of journalistic sources. It should surprise no one that our government understands the importance of this issue.

We saw good work done by the standing committee. It reflected on the previous debate, reviewed some of the incidents that have occurred, including the one that I cited earlier, and came up with ways to improve the system. That is the way I look at Bill S-231.

I applaud the actions of those individuals whom I have named and the many whom I have not named, because as I have indicated, we should never take those fundamental issues for granted. We do need to stand guard and protect our democracy, our free press, those fundamental pillars that ultimately made Canada the great country that it is.

Journalism and the way the media reports events have greatly changed. I make reference to the days when I was first elected. I can remember sitting in the Manitoba legislature and looking into the press gallery, where I could see representatives from all the different mainstream media. There were three reporters from the Winnipeg Free Press and two from the CBC. CTV had a reporter there. Even Global had a permanent reporter there. There was also a reporter from the Winnipeg Sun. Other media outlets were also there. Back then there was no blogging, no Internet, and no social media.

I appreciate the member's discussion about what a lot of people question: what is a journalist? Today, with issues like fake news and so forth, there is a great deal of concern about that. I appreciate the member across the way recognizing that. We recognize that journalism is an honourable profession in this legislation, a profession with high standards, a profession that is the main source of income for its practitioners. To me it is also important for a journalist to be employed by a main media outlet. These are important things. We need to recognize that there is a difference between CTV National News and Joe Blow on some blog claiming to be a journalist.

I appreciate the debate that we have had here today and I look forward to an ongoing debate on the issue.

Journalistic Sources Protection ActPrivate Members' Business

September 19th, 2017 / 6:15 p.m.
See context

Liberal

Filomena Tassi Liberal Hamilton West—Ancaster—Dundas, ON

Madam Speaker, I am pleased to rise this evening to speak to Bill S-231 to protect the confidentiality of journalist sources. I wish to commend the member for Louis-Saint-Laurent, who I know is very passionate about this. It was good to see that he had the opportunity to speak today and to express his passion.

Freedom of the press is a fundamental Canadian value that is protected by the charter. Our government supports this and will defend charter rights. We know that journalists play a key role in ensuring that Canada remains a free and democratic society. Therefore, as my colleagues have said, we will be supporting the bill with the amendments made at committee.

The bill would protect journalists and their sources. That is the distinguishing factor here. We know journalists are protected under section 2(b) of the charter. However, case law has demonstrated that their sources are not protected. That is part of the reason why the need for this has come forward.

It is important to protect the sources of journalists for a number of reasons, the main one being that it enables us to get closer to the truth. We know journalists have sources who are reliable and who would hesitate to come forward if they knew their names would be disclosed. It is important to know that is not sneaky or inappropriate. We have to recognize that certain risks and costs that are taken are not fair and that people are coming forward in the interests of truth. They need to have that assurance.

I relate this to my own life because I, unlike the member, I am not a journalist and have never taken on that role. However, I was a chaplain in a high school and had students come to see me. Over the years, we formed beautiful relationships of trust, friendship, and those sorts of things. If there were any issues or anything that students thought needed attention, they could come to me. The importance for them when they were going to share certain things with me was that it would be in the interest of the community. They would tell me things like a fight was going to break out after school and that it would happen in the park a half mile away. However, they would only tell me that if I promised I would not say where my source came from. Was what they were telling me important? Absolutely. Did I then notify the authorities so the police would be there and there would not be a brutal fight? That is exactly what I did. Did it prevent that fight from happening? Yes.

There are many other examples. Some of these examples were very serious, such as mental health issues, where self-harm was happening. Students would come to me in the interest of protecting another student, in the interest of saving that other student's life. However, they would tell me that I could not reveal where I got the information. I could give them that assurance, and I could follow up and reach out. At the end of the day, justice was served and help was offered. It was a good thing because I had that right.

The goal of journalists is a bit different, but they are after truth and they want accountability. They want Canadians to be informed. This is very important for a free and democratic society. We want Canadians to be informed as well. We, as a government, want to be accountable. For those constituents who have said that they want members to make a difference, to be honest, and they want to be able to trust us, that is exactly what I want to deliver. I want to restore their faith. That is why I am here today.

We, as a government, want to ensure that journalists get the information they need in order to keep us accountable. We want to be held to account. If an investigation is required, we want to ensure we have the information to lead us to that investigation. We do not want that information to be held back. At the end of the day, we know all Canadians will benefit from it.

The bill does many things, but what I want to focus on next is the test that is used. The common law would apply in a situation where we are talking about journalist source confidentiality privilege. The common law uses the Wigmore test. That test has four criteria: one, the communications must originate in a confidence that they will not be disclosed; two, this element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; three, the relationship must be one that in the opinion of the community ought to be diligently, deliberately, and consciously fostered; and, four, the public interest served by protecting the identity of the source in this particular case must outweigh that of the public interest in getting the truth.

Bill S-231 codifies and simplifies that legislation so that we are not involved in conflicts and wondering what test to use. The test here is simple: the administration of justice outweighs the public interest in preserving confidentiality. It is simplified and codified so that we do not have to go back to the Wigmore test.

This also applies to warrants. The bill includes conditions that allow any material seized by a warrant to be held until a decision is made. This ability to build conditions into a warrant is important because the warrant can be issued and the conditions can be set.

The other thing I would like to talk about, which is very important and very different, is that the burden of proof now shifts to the person who wants the information disclosed. I know that journalists will appreciate and value that very much.

At the end of the day, the bill puts in place a robust and unprecedented protection of journalists' sources by clarifying the test, by preventing conflict of interest law issues, and by ensuring that new safeguards will only apply in appropriate places. I am pleased about this change for journalists. I want to encourage journalists and impress upon them today how important we, as representatives, as members of Parliament, believe their job is. They are doing a very important job. We want to help them do their job well. We think this legislation will help them do that.

Journalistic Sources Protection ActPrivate Members' Business

September 19th, 2017 / 6:25 p.m.
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Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

Madam Speaker, it is an honour to rise today to speak again on Bill S-231. I recall that the last time I spoke in the House, I think at second reading in May, my time was also truncated. Perhaps I will be able to say what I need to say in the short period of time we have.

This bill came to the House by way of its sponsorship by my good friend from Louis-Saint-Laurent in the other place. It is being debated here in the last few minutes of private members' business on our second day back after we have been in our constituencies for the summer. These facts should not belie the importance of this bill. This is a fundamental bill. This will fundamentally underline what we see as important to Canadians and as Canadians.

Fundamentally, this bill is about democracy. It has been said that democracy is the worst government, except for all of the other types. We need to hold what we have dear. We must cherish our democracy. Our democracy is not going to remain strong and robust if the good people in this place and throughout Canada stand idly by. Democracy, like all that we love and cherish, must always be nourished. It must always be improved. At its essence, this bill would improve our democracy.

Why is that so? It is for many reasons, but let me take the brief time I have to elaborate on one or two of them. I believe it was the British member of Parliament Lord Macaulay who first said that the media is the fourth pillar of democracy, after the executive, Parliament, and the judiciary. The media plays just as important a role. None of us here today would imagine that democracy could exist without Parliament. None of us here today could possibly fathom democracy without an effective judiciary. None of us here would even dare to dream of government or democracy existing without an executive answerable to Parliament.

I suggest that a robust media is as important as these other three branches of government. Without the protection of journalists and journalistic sources, there can be no free media. Make no mistake about it, that is how democracies die in this world: it is when journalists cannot do their job, cannot speak truth to the people who send us here, are afraid of the state, or fear for their safety and that of their families. This is what we are talking about here. We need to make no mistake about this.

Bill S-231, in its essence, is at the foundation of democracy. I urge every member to support it. It is a fantastic piece of legislation. It has been amended in committee. This is what we need to support. This bill highlights where democracy, the law, and journalism meet, all of which are important and fundamental principles of our free society.

Professionally, I am a lawyer, and I am entitled to privileges. Lawyer-client privilege is one of the most sacred tenets of our law. I could not possibly have done my job as a lawyer without my client having the full and utmost confidence in knowing that whatever they said to me, I could never tell another soul. That fosters truth. That is how people can be confident in this system and how they can be free to say what they need to say.

As a lawyer, I do not think that that privilege is any more important than the same privilege a journalist has they are speaking to their sources. How will the wrongs of the world be righted if good people do not have other people to speak to and explain the wrongs. Those journalists take those stories of woe, corruption, and fraud and bring them to the people. Without journalism, these stories do not see the light of day. Not only will these stories or the people who want to tell the stories potentially die, but I also suggest that democracy itself will die.

I for one will not stand by and let democracy die. I urge all members to support Bill S-231.

Journalistic Sources Protection ActPrivate Members’ Business

June 9th, 2017 / 1:15 p.m.
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Conservative

Gérard Deltell Conservative Louis-Saint-Laurent, QC

Mr. Speaker, I seek unanimous consent to move the following motion:

That, notwithstanding any Standing Order or usual practice of the House, the motion for second reading of S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), be amended by deleting the words “Standing Committee on Justice and Human Rights” and by substituting the words “Standing Committee on Public Safety and National Security”.

Journalistic Sources Protection ActPrivate Members’ Business

June 9th, 2017 / 1:15 p.m.
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NDP

Brigitte Sansoucy NDP Saint-Hyacinthe—Bagot, QC

Mr. Speaker, I am rising in the House today to speak about and defend freedom of the press. I thank the sponsor of the bill, which I will support.

Canada has dropped 14 points in the World Press Freedom Index in two years, since the Liberals took office. This is alarming, and it is time to act.

Protecting the freedom of the press, particularly a journalist’s confidential sources, is vitally important, which is why I am standing in support of the intentions of this bill. However, I do have a few regrets about certain aspects of it.

Today we live in a connected world, in an era with a variety of platforms and social networks. The concept of media must evolve with the new information distribution channels and new journalistic practices. We should go with a broad definition of what a journalist is. We need to leave it up to judges to decide whether an individual was acting as a journalist or not when a disclosure request is received.

I am concerned to see that the Senate committee narrowly limited the definition, since it is unacceptable that protection of journalistic sources be given only to the traditional media. I am certain that many journalists are doing a tremendous job outside of conventional media. The NDP will therefore be submitting an amendment in committee to restore the definition of “journalist” that was in the original version of the bill.

The NDP has always been on the side of the media against attacks on their independence and has always defended press freedom. The NDP was there, on November 16, at a press conference with major Canadian media organizations to condemn the wiretapping of journalists and to defend press freedom in this country. I would like to thank my colleague from the riding of Beloeil—Chambly, who is standing up for press freedom and the protection of journalistic sources.

Where are the Liberals? The situation is troubling. The Liberal government is always shirking its responsibilities. Internationally, we see that nothing is being done to bring home Raif Badawi, who has been confined and mistreated since 2012 in Saudi prisons. Nothing is happening here at home either. Once again, Canadian citizens cannot count on their government to take the appropriate action.

Considering how often the Prime Minister makes grand pronouncements about freedom of the press, I would like to know why this bill came from the Senate, not from the government. Protecting people takes more than just good intentions. Our journalists and their sources risk their jobs and sometimes their lives to supply us with reliable information on matters of public interest. This is a serious issue that calls for serious action now.

Media in my riding are doing outstanding work. Our newspapers, Le Courrier de Saint-Hyacinthe, Le Clairon, Journal Mobiles, and La Pensée de Bagot, and our radio stations, Boom Montérégie and Radio Acton, as well as our television stations, CogecoTV Saint-Hyacinthe, Maskatel, and Cooptel, are doing great work. I know them all well, I have worked with them, and I know they do top-notch work on the ground that our entire region is proud of. Every day, women and men across Canada work to keep us informed about what is going on in Quebec, Canada, and the world. That includes journalists, but it also includes sources, who often reveal vital information on matters of public interest.

Unfortunately, this reporting could be threatened if nothing is done to maintain the bonds of trust between journalists and their sources and to protect the confidentiality of these sources. Le Courrier de Saint-Hyacinthe, in print since 1853, is the oldest French newspaper in America. Many residents of Saint-Hyacinthe read it, and they recognize the quality and reliability of the information in that newspaper and other local media. How can media consumers feel confident that they are well informed, knowing that print journalists are possibly being spied on by their own government? It is time we legislate to protect journalists' confidential sources and to change the way surveillance warrants are issued.

Under this bill, a justice of the peace will no longer have the authority to issue search warrants to investigate a journalist. Only a Superior Court judge would be authorized to do so, under certain conditions. This represents major progress that will provide journalists with assurances that a search warrant really is the last resort.

I would also like the Minister of Public Safety to call a public inquiry as soon as possible to get to the bottom of the issue of journalists under surveillance by the RCMP and other federal security agencies. There have been repeated incidents for many years now.

In 2007, La Presse journalist Joël-Denis Bellavance was under surveillance by the RCMP, which is completely unacceptable, and his is not the only one. In October 2016, La Presse revealed that journalist Patrick Lagacé had also been under surveillance, this time by the Montreal police. That came as no surprise given that 98% of applications for a warrant to investigate a journalist submitted by the police to a justice of the peace were granted. I think these repeated scandals raise some very serious questions about the state of freedom of the press and democracy in this country.

On November 4, 2016, after the attacks on the freedom of the press in Quebec had come to light, I asked the Minister of Public Safety in the House to tell us exactly how many journalists are being spied on. At that time, the minister said that this was not happening at the federal level.

Why then did the government not immediately launch a public inquiry in order to shed some light on the RCMP's practices regarding journalists? After all of the attacks on the freedom of the press that have occurred in recent years, Canadians have the right to call the government to account.

We need to determine the extent of the problem and establish new safeguards to prevent this sort of thing from happening again. I would also like to talk about Ben Makuch, a journalist for VICE, who could go to prison because he is refusing to reveal his sources to the RCMP. In the bill that we are examining today, there is a provision that allows journalists to refuse to disclose information if they believe that the confidentiality of their source would be threatened. This represents some progress toward stronger protections for our journalists and their sources.

We can no longer keep count of the scandals that have been uncovered here in Canada and around the world because of anonymous yet highly credible sources. For journalists to be able to investigate freely, they have to be allowed to gain the trust of their sources. Establishing this trust becomes impossible for journalists if they are forced to disclose information that might jeopardize the confidentiality of their sources.

Freedom of the press is everyone's business. It is a non-partisan issue because it is a pillar of our democracy. To ensure this freedom, journalists working coast to coast to provide quality information to the public need assurances that they will not be under surveillance. This means that their confidential sources have to be protected.

Every journalist needs to be able to investigate without fear of being watched or wiretapped. Bill S-231 is an improvement, but does not quite go as far as I had initially hoped, including in providing a broader definition of media.

This bill has the support of journalists associations across the country, of Canada's major media outlets, and lawyers who specialize in media law, as well as the Barreau du Québec. The government cannot vote against this bill. For far too long, it has been avoiding the issue and trying to shirk its responsibilities. Soon we will see whether the Liberals are the valiant defenders of freedom of the press that they claim to be or whether this was just more rhetoric.

As I said, my region is home to the oldest French-language newspaper in America, and we are very proud of it. I have been in office for several years now, first as a municipal councillor and now as an MP. I appreciate the fact that our local media can be critical of our work. I appreciate how they act as watchdogs and keep abreast of the issues.

Much of their work is in the public interest. They make sure that we spend public money appropriately and that the people's interests are properly represented. Their questions might make us squirm sometimes, but they are important for our democracy. As I often said to my fellow municipal councillors, those looking for subservient media should move to a dictatorship.

Protecting our journalists is important.

Journalistic Sources Protection ActPrivate Members’ Business

June 9th, 2017 / 1:25 p.m.
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Conservative

Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC

Mr. Speaker, I am very pleased to rise in the House to speak to Bill C-231, which was introduced by my colleague, Senator Carignan, who did an exceptional job as opposition leader in the upper house for our party. Mr. Carignan is from the Montreal region, so he is very familiar with what is going on in the media sector in our greater metropolitan area.

I am also glad that the government decided to support this bill, which is so important for our democracy.

Last year, like many Quebeckers, I was shocked to learn that police forces, whose job is to protect us, had a number of journalists under surveillance. Naturally, I have a lot of admiration for this country's police forces and law enforcement agencies, whose members, for the most part, choose to work in policing because they want to keep us safe and protect our families and our rights. For them, it is a matter of principle, honour, and ensuring a healthy democracy.

We need to ensure that our law enforcement officers continue to serve all Canadians, rather than just one branch of a political office, whether it be that of a mayor or MP. We need to avoid the embarrassments we have seen over the past few years, and still recently, in certain regions of Canada.

We are not a communist country like China or Cuba, despite our Prime Minister's willingness to sing the praises of some of their leaders. One thing is certain; Canada is a democratic country. In a country like ours, everyone should ensure maximum freedom of expression so that the rights of all Canadians are protected.

The resources available to the state, especially when it comes to surveillance and wiretapping, are supposed to be used only in situations where they are deemed essential, specifically in order to thwart an attack that is imminent or in the works. The fact that an employee working for a municipal, provincial, or federal government wants to blow the whistle on an embarrassing situation is clearly not a matter of national security that would require police forces to set aside important investigations to sound the alarm. That is what we believe on this side of the House, and of course all parties agree on this.

The most blatant example in Canadian history is that of the Gomery commission. Journalist Daniel Leblanc from The Globe and Mail uncovered a story that caused quite an uproar and ended with the investigation that we are all familiar with today. The whole thing started with an informer known as “Ma Chouette”. We never found out the person's real name because Mr. Leblanc went so far as to go to court to protect his journalistic sources. This helped Canadian society to make significant advances.

It is therefore essential that we be able to protect those people. Senator Carignan, who sponsored this bill, was aware of the importance of striking a balance so as not to create a free-for-all where government secrets would be leaked in violation of the law.

It is important to point out that this bill still allows the courts to authorize the disclosure of information, even if they do so only in rare cases where the public interest in the administration of justice outweighs the public interest in protecting confidentiality. Under clause 39 of the bill, the court must take into account the following three factors: the essential role of the information in the proceeding, freedom of the press, and the impact of disclosure on the journalistic source.

Judges are required to think carefully before issuing wiretap warrants, and obtaining such warrants will not be a mere formality that is automatically rubber-stamped. Judges cannot issue such warrants unless they are absolutely necessary.

The Chamberland commission on the wiretapping of journalists is currently under way in Quebec, and it is causing quite the stir.

This is further proof that the bill must be passed, so that all of these things can change and that journalists are able to conduct the necessary investigations to advance democracy.

That said, as he acknowledged himself before the Chamberland commission this week, the officer responsible for wiretaps in the case of Mr. Lagacé, of La Presse, acknowledged that despite the lack of urgency, he had no trouble obtaining a wiretapping warrant. Had Bill S-231 already been in place at the time, things would have played out entirely differently, and for the better.

I would like to reiterate that freedom of the press is fundamental in a free and democratic society such as ours. The press' role is to question, to investigate and to ensure that governments at all levels respect their commitment to openness and transparency. Incidentally, I would like to digress for a moment by touching on the events, starting last week, that led to the withdrawal of Ms. Meilleur's candidacy this week for the position of Commissioner of Official Languages.

MPs and journalists alike worked on this file. Journalists uncovered the facts and presented them to us. Certain individuals, some under the cover of anonymity, spoke to journalists and expressed reservations about Ms. Meilleur’s appointment. Not only did this spark controversy, but it also prompted us elected representatives to action. Though people would not necessarily have contacted us directly, they were comfortable enough talking to journalists, who then publish the news in a neutral way. Neutrality is very important. We all have our contacts and our networks, that is the nature of politics, but I think that people will still regularly supply information that may move certain matters forward or even allow all the facts to come to light, as the Gomery commission did. Sources often prefer to supply information anonymously to a journalist, as journalists are neutral and not tied to any particular political party. That makes it possible for them to speak freely, which is not always the case.

The government has boasted for a year and a half about being open and transparent. Transparency is not creating a website where people can enter their name. Over time it was revealed that Ms. Meilleur made contributions to the Liberal Party. There were still some dots to connect, however. As more time passed, we became aware of mounting evidence pointing towards the fact that this was indeed a partisan appointment. There was still more digging to do.

The press' role is to question, investigate and ensure that governments at all levels respect their commitment to openness and transparency. Without the press, Canadians may not have become aware of scandals such as the sponsorship scandal, the Prime Minister's wheeling and dealing, cash-for-access fundraisers, or partisan appointments such as that of Ms. Meilleur.

Despite Liberal promises to be open and transparent, Ms. Suzanne Legault, the Information Commissioner, concluded in her report yesterday that government is more secretive than ever.

I am pleased to support this bill, which recognizes the importance of journalists and sets clear safeguards to prevent the government from pushing too far with the powers that Canadians have given it.

I would also like to note, as my colleague from the NDP has just done, that there are also local media venues in our ridings. The local community media can also receive information in a neutral manner. I would like to list them: on radio, there is CIEL FM in Rivère-du-Loup, CHOX FM in La Pocatière, and CIQI FM in Montmagny. For newspapers, there is Le Placoteux, Info Dimanche and Journal L’Oie Blanche. On television there is CIMT and CMATV. I am firmly convinced that all these communications networks allow for better democracy. I support them and I would ask them to continue their good work. We need them, as they are essential to Canadian democracy.

Journalistic Sources Protection ActPrivate Members’ Business

June 9th, 2017 / 1:35 p.m.
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Eglinton—Lawrence Ontario

Liberal

Marco Mendicino LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, today, I would like to advise my colleagues of the government’s position regarding this important debate on Bill S-231 , the journalistic sources protection act.

It is an issue that affects all Canadians. Since this discussion is taking place at a time when the media is under attack in certain parts of the world, it is important to highlight their essential role in protecting our freedoms and our democracy.

Last October, it was made known to the public through the media that several media outlets and journalists were the targets of police surveillance in Quebec. Although a journalist, just like any other Canadian, can be the subject of a criminal investigation, what the public and parliamentarians were most concerned about was the possibility of the media being surveilled to identify their sources in a context where it was not evident that the criminality of the journalists was in question.

It is clear that such conduct is profoundly troubling, as it has a potential chilling effect on the willingness of whistleblowers to come forward with their stories. Whistleblowers are often the only source for uncovering systemic corruption and other issues that undermine our democracy.

As a result of that incident, the Government of Quebec acted quickly and amended its guidelines and protections for obtaining warrants against journalists.

To that end, it put them in the same group as lawyers, judges, and members of the National Assembly, for whom additional guarantees and special protocols for obtaining warrants apply.

The Government of Quebec also established a commission of inquiry to look into the issue. The commission should conclude its hearings by the end of the month.

In light of these events, two bills were introduced in Parliament on the issue of privilege concerning journalistic sources. Today we are debating the merits of the bill from the Hon. Senator Claude Carignan, sponsored in the House by my colleague, the member for Louis Saint Laurent.

Our government believes that the overall objective of the bill, to ensure that the protection of journalistic sources is given due consideration whenever they are at issue in Canadian courts, is laudable. This initiative transcends political lines. On that note, we would like to thank Senator Carignan, as well as all the other senators who worked so tirelessly and passionately on this important bipartisan initiative. That is why we are proud to support Bill S-231, all the while proposing certain amendments that will not only address certain legal and policy concerns that have been voiced but will help it better meet its objective.

This issue is clearly very important, but it must be noted that the jurisprudence on confidential sources is very complex.

The current laws have been referred to the Supreme Court of Canada for consideration of the very issues addressed by the bill we are debating.

At this time, the protections afforded to journalists and their sources have been upheld over the evolution of common law, in other words, in this context, the jurisprudence that interpreted the freedoms granted by the charter and the legislative framework consisting of the Canada Evidence Act and the Criminal Code.

This is important to note, because when Parliament enacts laws, it is codifying strict practices that will frame an issue, and as a result, supplant the common law. This is why it is important that whatever legislative change we enact in the name of journalistic protection, it must further protect journalists and their sources and not weaken them.

In relation to the Canada Evidence Act amendments, the bill seeks to create a unique regime, applicable any time the media wish to protect a journalistic source. However, there are some problems relating to this new regime. In clause 2 of the bill, one of the factors listed, in proposed subparagraph 39.1(8)(b)(i), is the “essential role of the information or document to the proceeding”.

Our government is concerned that the reference to “essential” could impede the administration of justice in some cases, as it may be unknown at the outset of a proceeding whether a piece of information or a document is essential. Requiring consideration of the “importance” of the information or document would still be within the spirit of the bill but would provide the court with greater latitude to make its determination.

Next, the new condition added by the Senate at committee, proposed paragraph 39.1(8)(c), “due consideration was given to all means of disclosure that would preserve the identity of the journalistic source”, is a valuable addition, even if a document is admissible. This condition will always be met, which will weaken the privilege. As such, our government believes that this new condition should be moved to a separate section such that it is not a condition of admissibility but rather a step the decision-maker must undertake once information is admissible. This is expected to strengthen the protection of journalistic sources.

Finally, the bill proposes an override provision that would give the provisions of the bill supremacy over any other provision of the act or any other act of Parliament. This provision is not only unnecessary for the proper operation of this new scheme but raises significant legal and policy issues. It is wholly unclear how this override would affect other laws, including those that relate to privacy and national security. As Parliament believes that every law it passes is important, override clauses should be used sparingly.

With regard to clauses affecting the Criminal Code, we need to look at how investigative tools such as search warrants and production orders can be issued and executed when they relate to journalists. Although the purpose of these proposals is to protect journalistic sources, the procedure in the bill would apply the moment a journalist becomes the subject of an investigative tool even if the journalist is the subject of a criminal investigation.

The bill also proposes a triage procedure that requires the gathered evidence to be sealed and reviewed by a court before the information can be disclosed to police. It is important to note that the bill says only a superior court judge shall authorize the use of an investigative tool on a journalist.

Like the proposed amendments to the Canada Evidence Act, our government is of the view that these proposed Criminal Code amendments raise some discreet legal and policy issues.

The fact that the new regime would apply even in cases where a journalist is suspected of criminal activity was a major concern of Senator Vernon White at the Senate committee, and our government remains concerned that it was not adequately addressed by the Senate.

Our government does not suggest that a confidential journalistic source should lose his or her protection in this context. As such, we propose that the additional conditions for the attainment of a warrant would not apply in cases where the journalists themselves are suspected of criminal activity, but the sealing order provisions would still apply to protect the source.

The other policy question arises because the new regime seems to apply each and every time a journalist is implicated, even when the police are not aware that the target is a journalist. Our government does not believe this was the intention of the bill, but the fact remains that it could lead to court challenges where police subsequently discover they are investigating a journalist but were not aware at the time of the application. Making it clear that the regime would only apply when the police know or reasonably ought to have known that the target is a journalist, and creating a process whereby the police could inform the court when they become aware that the target is a journalist, would make the scheme much more workable.

Lastly, the bill also provides for an override clause with respect to the Criminal Code provisions. This is not a situation that needs an override clause, yet there is the real potential for conflicts with other acts. Most notably, it would prevent the police from acting in exigent circumstances, which may include ongoing terrorist activities or attacks where the perpetrators use the media to increase their exposure.

I ask all members in the chamber and in the other House to support the bill for all of the reasons that I have identified, as well as the amendments the government is proposing to improve upon it.

Journalistic Sources Protection ActPrivate Members’ Business

June 9th, 2017 / 1:45 p.m.
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NDP

Gord Johns NDP Courtenay—Alberni, BC

Mr. Speaker, it is an honour to rise today on Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code. I would first like to thank the member for Louis-Saint-Laurent for bringing forward this bill. He was an esteemed journalist in his past life and knows this very well.

As I was preparing my thoughts on this bill today, I was hoping to talk about a friend of mine, a local reporter on Vancouver Island, Keven Drews. Keven has been a pillar of journalism on Vancouver Island and the west coast for over 20 years. He has shown me what strong, unflinching journalism looks like. Unfortunately, Keven is fighting a brutal 10-year battle with cancer. He is in the hospital today and watching us talk about this very important bill. I am certain he would be happy to know that we are here fighting for freedom of speech and journalists.

The first time I met Keven, and it is hard to believe, I met him surfing. I was in Tofino and he was a cadet, a real, true Canadian committed to Canada and to becoming a journalist who could tell very important stories for coastal people.

As a journalist, he started the local paper, telling our stories, and moved up to become the Alberni Valley Times reporter and editor. Then he went down to Peninsula Daily News, and then over to Port Angeles, Washington, before he got sick. Then he started his own paper, the westcoaster.ca, and started telling a very important story, the west coast story, to make sure that people across our country heard our story. When Keven got sick, he was on the way up in his career, and he went to work for The Canadian Press so he could be close to the hospitals in Vancouver.

Wherever Keven was, he would stop to hear what was happening in our communities. His late father or his mother, Louise, would be with him, who are very proud of Keven, or his wife Yvette and kids Tristan and Elleree. Keven always made time to hear our important stories. His priorities were to ensure that in the stories of coastal people, stories about economic justice and social justice and environmental justice and indigenous people's rights were included. Some of the stories were difficult and painful.

Keven interviewed me many times, and I always respected his sources. I respected that he had to protect his sources so that he could get the story right. He covered really bad accidents, suicides, corruption, and scandals, really difficult stories to cover. It was the confidentiality that earned Keven the respect that he deserved, and he could cover all of these difficult issues. I acknowledge journalists across our country for the passion and caring that they have to make sure they get it right and build trust within communities.

Before I dive into the rest of my speech, I want to thank Keven. I know a lot of people have gone back to their ridings and I appreciate that, but I would ask members to join me in acknowledging this great man, who fought for journalism, people in our communities, and our country.

One of the biggest challenges for journalists and the journalism profession in general is trust, as I touched on. In a changing media landscape where clicks and views have become its currency, the public's trust in journalism has eroded. In this environment, probing investigative journalism has become all that much more important. This is the kind of journalism that we not only need to celebrate but also rigorously protect.

Along with developing trust with the public through their hard work, it is also vital for journalists to develop trust with their sources. Many of these sources need to speak with anonymity. If sources feel their communication with the journalist could compromise them, those sources will dry up. Bill S-231 aims to protect these journalists and the sources they rely upon to create the powerful, well-founded journalism we deserve here in Canada. If we want to sustain our free and independent press, the protections that this bill provides are necessary.

This bill was introduced in the House on May 3, which was fitting, as it was World Press Freedom Day. On that day, the Prime Minister released a statement, which stated:

Today, we recognize the many journalists who seek out the truth, challenge assumptions and expose injustices, often at great personal risk. They are the cornerstones of any strong and healthy democracy, informing and challenging us all to think more critically about the world around us.

I cannot agree more with the sentiment of the Prime Minister's statement last month. The government needs to move past well-meaning platitudes, though, and pass legislation that grants journalists and their sources the protections they need to pursue difficult stories.

The government needs to clear the way on these reforms. I cannot understand why it remains silent while reporters are prosecuted. If the Prime Minister wants to continue to label himself a champion of the free press, now is the time to prove that claim. The Liberals have yet to act upon Bill C-51 and the threat to free speech it poses for journalists, but support for this bill would be a great step in the right direction. To this point, it is worth noting that in 2015, Canada ranked 10th in the World Press Freedom Index, and this year we have slid to 22nd in the world. We can and need to do better.

The World Press Freedom Index cited four items that caused our rank to drop. One was the revelation that Montreal police tailed a La Presse journalist in an attempt to uncover a leak from their own source. Second, the RCMP is prosecuting a Vice media journalist who has been charged with refusing to give up his direct documents to RCMP officers and could be sentenced to up to 10 years for withholding these documents. Third, a journalist for TheIndependent.ca is being charged by the RCMP for his reporting on a protest at the Muskrat Falls hydroelectric project in Labrador. He followed protestors to bear witness to the protest, and he was prosecuted for this action. Finally, there is our lack of a shield law for journalists and their sources.

The first three examples are offensive, overreaching actions, and these cases need to be resolved. The importance of a shield law for Canada falls to us to accomplish and would help to stop injustices such as these from occurring in the future. We need to follow the examples of countries such as Australia, France, Germany, and the United Kingdom in developing a shield law.

I would like to take a moment to speak to some of these cases. In the cases of the Vice reporter and TheIndependent.ca's journalist, both filed stories that will be vital evidence for police in other cases, so it baffles me that journalists acting in the public interest and assisting the public in an invaluable way are then being prosecuted for doing that work. This is a short-sighted approach by police, as it will make journalists consider what stories they pursue in the future. It pushes directly against the rights of these individuals and their protection from self-incrimination. Journalists and the media are not accountable to the government. Strong-arm tactics such as these are the sorts of measures that break down free speech.

I am glad to stand with my colleagues from other parties to advocate for this legislation. This is not a partisan issue. This is an issue of freedom of speech and our democracy, and I think we can all see that. I hope that the government comes to see this as well and supports this bill.

Bill S-231 is a well-meaning piece of legislation. However, I still have reservations about its scope in the bill's current form. I am particularly concerned that small news outlets and freelance writers may still be forced to self-censor or risk entering into an extended legal battle, which remains something few can afford. In 2009-10, The Globe and Mail spent almost a million dollars in legal fees to protect one of its sources, and this kind of expense cannot be expected of local media outlets.

Another concern I have is the limited definition of journalist in the bill's current form. I hope that as this bill reaches the House committee, this language is scrutinized. There is a serious problem if size rather than substance limits the inclusion of publications in the scope of this bill. Bill S-231 is a strong first step, but it is clear that more can be done to reflect the enormity of the media landscape in this day and age.

One of the strongest parts of this legislation is the paradigm shift the bill would provide at the beginning of a police investigation. From the beginning of an investigation, it sets out checks and balances in the judicial process to weigh journalistic integrity against public safety. Journalist advocates provided during warrant requests could lend their expert knowledge and mediate between police forces and judges. This would make sure the onus was on the agencies to prove the need to investigate these journalists.

The bill would also amend the Criminal Code to no longer give a justice of the peace the authority to issue a search warrant relating to a journalist. Only a judge in a superior court would be able to issue a search warrant, under certain conditions that would provide maximum protection to journalists' right to the confidentiality of their sources. This is a wise change. The journalists I have mentioned have been charged with serious crimes, with the potential for significant jail time if they are convicted. Going forward, we need the experience and knowledge of our most seasoned judges in these cases from the very beginning.

This bill needs to be a true shield and not a hurdle to be navigated around. We have a duty to support journalists and freedom of speech in this country. Democracy is at its best when journalists are free to do their job without fear of reverberation. My New Democrat colleagues and I will stand by those who make our country strong with an independent free press.

Journalistic Sources Protection ActPrivate Members’ Business

June 9th, 2017 / 1:55 p.m.
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Conservative

Arnold Viersen Conservative Peace River—Westlock, AB

Mr. Speaker, it is my pleasure to also rise today to speak to Bill S-231. I would like to begin by thanking my colleague, the member for Louis-Saint-Laurent, for recognizing the importance of this issue and supporting the bill from the other place.

Today, we are speaking about a bill that cuts to the very heart of democracy: freedom of speech and freedom of the press. Those are two concepts that every good and flourishing democracy must uphold. This is imperative and I see the importance of the need to bring this forward today.

One of the reasons these two principles, freedom of the press and freedom of speech, are important is that we are in the pursuit of truth. Our society, western democracy, is always predicated on the pursuit of truth. Truth, typically, needs no defence, but it does need to be brought into the light in that we need to see what the truth is.

As parliamentarians, we have a duty to protect the public and to reduce public health and safety risks by ensuring that everyone knows what the truth is. That can only be found out in certain ways because there are forces in the world that want to limit the truth. They want to hide the truth. Exposing truth can only be done when private citizens engage in a public discourse to bring the truth to light. Sometimes the truth is ugly. Sometimes it is not something everyone wants known. However, in a lot of cases, when the truth is brought out into the light, we can then make appropriate decisions that will make our communities and society better.

That is why, in the defence of truth, we need to ensure that sources are able to bring forward the truth, and to do that with some anonymity, to ensure that our democracy continues to flourish, because if we can stifle truth, we will make decisions based on false information. We will make decisions that are based on misinformation that will then have significant ramifications down the road. The truth must be brought forward. It must be unbiased, and our decisions should not be driven by hidden agendas, whether for profit, prestige, or influence. All these kinds of things can have the effect of people trying to limit the truth.

I am very much in support of the bill. It will improve the likelihood of someone bringing the truth forward and approaching a journalist to say, “You should probably know about this. However, if I do go public with this my life might be at risk, so I need you to bring it forward.”

Journalists take on some of that risk when they come forward as well. We must commend the journalists that do the hard work of bringing truth to light. That is very important. As a society, we must always focus on what the truth is. It is not always what we would like it to be, but it is the truth at the end of the day. Again, I go to the fact that it does not need a defence, but it does need to be brought into the light.

Often, sources find themselves in positions of conflict, where the release of information could harm the organization they work for or harm the security of their job. If they go forward with information that could harm their organization or threaten the security of their job, that is to some degree an understandable situation, but we all know situations where accusations have been made and significant things have happened in terms of people's lives being ruined. Therefore, if we could to some degree share the impact of that with the rest of society, that would be great.

In the past, whistle-blowers have been shunned, demoted, threatened, sued, fired, and their lives have been significantly affected. However, we must commend these people for their pursuit of truth, for identifying the moral good for society in the pursuit of truth. If there is a moral ill that is happening in society and decisions are being made without a key piece of information being brought to the forefront, it is significant and we must have the ability to bring that significant piece of information to the forefront and minimize the backlash or impact that could happen to the person who is bringing it forward.

I would like to bring forward the case of a whistle-blower. Dr. Chopra, a Health Canada scientist, was pressured in the 1990s to approve bovine growth hormone as a veterinarian drug. He had concerns about this drug. Despite his concerns, the pressure to allow this drug to go forward continued, and the pressure was immense. He could not make headway within the organization, so he went public with it and was immediately fired. However, under the bill before us, Dr. Chopra would have been allowed to go to a journalist, go public, and be more anonymous about it.

It is people like Dr. Chopra, who put their livelihoods on the line for the moral good in the pursuit of truth, that the bill would help protect. It would also ensure that we have a society that has all the information it needs to make important decisions.

Specifically in this place, we make a lot of decisions that, in some cases, could be a life and death situation. Therefore, we need to have all the information when we are making decisions, and the pursuit of truth is an immensely important aspect of that.

Freedom of the press and freedom of speech are the two principles that we are dealing with today, and behind those two principles is the idea that we pursue truth. Democratic nations in the world typically recognize that the truth does not need defence. If the truth is brought to light, we have to deal with it. Yes, there might be situations where it may be uncomfortable for particular people, but at the end of the day, if we have that truth, we will be able to flourish and make proper decisions.

Democratic countries also recognize that there is risk in the world. We have all heard of situations where somebody noted in their particular workplace that there was a danger, but when they talked to their supervisor or manager, nothing happened. They felt they wanted a particular thing to change, but if they went public with it, they would immediately be fired. This would not do any good for the rest of the employees in that business, because that risk or danger would still be there. However, with a source safety net, such that we are discussing today, they could go to a journalist, tell their story, and the person would not necessarily be identified. This is a very important component.

This is particularly important when it comes to government. If a government can bury the truth, bury the reality, then it can dictate reality to some degree. If we are not pursuing truth, if we can bury the truth, we can rewrite history or rewrite the reality, which is incredibly dangerous when people are making decisions about what type of government they want. We know that propaganda is often a non-truth or half-truth being put forward as a truth. Therefore, we need to ensure that truth is something that we pursue. We need to ensure that we have freedom of speech and freedom of the press in this country in order to be a viable democracy.

I am supporting the bill, and I would like to thank the member for Louis-Saint-Laurent for bringing it forward.

Journalistic Sources Protection ActPrivate Members’ Business

June 9th, 2017 / 2:05 p.m.
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Conservative

Gérard Deltell Conservative Louis-Saint-Laurent, QC

Mr. Speaker, a friend of mine used to say, “What a great day to be alive.” That is exactly the case today. This is a great day for democracy. This is a great day for the press. This is a great day for freedom of the press.

We are at second reading of Bill S-231. In my final remarks, I would like to begin by pointing out that we are indeed here debating this important bill thanks to the efforts of Senator Claude Carignan who worked very hard, quickly, and effectively to find a solution to the problem of protecting journalistic sources, in light of the scandal that broke a few months ago. The case of Patrick Lagacé comes to mind, a veteran Quebec journalist who, unfortunately, was put under surveillance by certain police forces, which was absolutely shameful.

Senator Carignan worked very efficiently to introduce a bill in the upper chamber. He managed to win the support and backing of every press association and to have his bill pass unanimously in the Senate. He did so in a positive and constructive manner by accepting the recommendations made by other senators, including Senator André Pratte, who, as everyone knows, is a veteran journalist who now serves in the upper chamber. Senator Pratte contributed several new, positive, and constructive elements to Bill S-231.

I acknowledge and thank Senator Carignan. I will quickly remind the House of the key elements of this bill.

First, it serves to protect whistleblowers, journalists' sources. The bill does not protect journalists so much as it protects their sources. This bill also defines exactly what constitutes a journalist. Not everyone can define themselves as a journalist. We need to clearly define exactly what constitutes a journalist.

Also, if the police want to conduct a particular investigation, this must be the last resort and the burden of proof must be reversed. A Superior Court judge will now have to authorize them to investigate, whereas, in the past, they could obtain such authorization from a justice of the peace.

We and Senator Carignan do not believe that that was enough. We needed to give this approach some teeth, and that is exactly what this bill does.

I have listened carefully to all members who have participated in the debate in the last hour. I was very impressed by the quality of the speeches. The quality of the arguments the members have tabled was sometimes better than what we had tabled as the godfathers of this bill in the House of Commons, so I want to pay my respects, especially to the NDP members, who always recognize that freedom of the press is important.

We recognize also that in every riding and every locality, there is a local press to protect. Certainly here in Ottawa we sometimes have la crème de la crème as journalists, those who cover us, and for sure we will be polite with them. However, we also recognize that in every community we have strong journalists, good journalists who work hard, and we think of them when we table this bill.

I appreciate the openness of the Liberal Party, of the government, which tabled some suggestions and some positive amendments, and we welcome the fact that we all worked together on this issue.

Let me be crystal clear: this is not a partisan issue. This is a real, true Canadian issue. We are here to protect the liberty of the press. We are here to protect the liberty of democracy. That is why we tabled this bill and some amendments, and we welcome them.

At the end of my speech, I want to say that many of the 338 members in this House have been journalists. I have had that privilege, and just in the Conservative Party, I count at least 10 members who have been journalists. That is why Canadians have recognized for so many years that the Conservative Party is so media-friendly.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:15 p.m.
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Conservative

Gérard Deltell Conservative Louis-Saint-Laurent, QC

moved that Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), be read the second time and referred to a committee.

Mr. Speaker, as a former journalist, it is with sincere emotion that I rise today to speak to the second reading of Bill S-231, which pertains to the protection of journalistic sources.

It is a wonderful story. It gets off to a bad start, but we hope that it will end well. It gets off to a bad start because, just a few months ago, we learned that terrible situations were happening in Quebec, where the police were wiretapping journalists in order to flush out their sources. That is shameful in a democracy.

Senator Claude Carignan from the upper chamber picked up on that and worked quickly, yet in an appropriate and effective manner, to draft Bill S-231, which seeks to protect journalistic sources. This bill was unanimously passed by Canada's upper house. It is therefore a great honour and privilege for me to sponsor this bill, because it is a key component of Canada's democracy that we are going to talk about.

Bill S-231 includes four key points that make it a good bill. First of all, it protects the source and not the journalist. Second, it clearly defines who is considered a journalist, to prevent people from suddenly claiming to be a journalist and committing irrelevant acts.

In addition, moving forward, the only people who can authorize police officers to investigate journalists will be superior court justices and not justices of the peace. Lastly, the bill changes the burden of proof. Police officers will have to prove that their last possible recourse for properly conducting their investigation is to get permission from a judge to investigate a journalist.

The most important distinction in this bill is that it protects the source and not the journalist. Simply put, it is similar to the first laws passed in this place regarding whistleblowers, those who discover wrongdoings and call journalists to tell them when something fishy is going on.

When I was a journalist, it was crucial for me to be able to speak directly to people who had information and wanted to get it out to others. Anyone who has ever been a journalist knows how important this is. However, sources need to feel that they are protected. If journalists are wiretapped and this allows the police to uncover their sources and then track them, the journalists' sources dry up. That is the worst thing that can happen. Therefore, the bill seeks to protect the source and not the journalist. That is an important distinction.

Second, the bill sets out a clear definition of a journalist. Many people can easily write a blog or anything else in their basement in the evening and call themselves journalists. However, the bill provides a clear and precise definition of a journalist.

In that regard, I would like to point out the remarkable contribution, that has not gone unnoticed, of Senator André Pratte, a career journalist and a former manager, editor-in-chief, and distinguished columnist at La Presse. It is a major benefit for democracy to have him in the upper chamber.

Senator Pratte moved an amendment. Senator Carignan, with his good will and desire to move things along, agreed, and that is how we came to have a clear definition of a journalist in the bill. Not just anyone is a journalist. Ultimately, the judge decides whether or not the target of a police investigation is a journalist.

Third, going forward, only Superior Court judges will be able to authorize police investigations.

Right now in Quebec, justices of the peace are the ones with the power to authorize investigations. I know it is the same thing in other Canadian jurisdictions, but I will limit my comments to my own personal experience. In the case of the Montreal police service, 98% of such requests were granted. That number was a tad high. Perhaps an investigation, or at the very least further analysis, was required.

That is why, with his usual efficiency and great skill, Senator Carignan suggested that we leave those decisions to Superior Court judges rather than justices of the peace. Without wanting to disparage justices of the peace, such sensitive situations require the attention of an experienced jurist.

Indeed, Superior Court judges have the necessary training to deal with just such circumstances.

The last point is rather tricky. It deals with reversing the burden of proof. In other words, the police officers seeking to investigate a journalist or identify a source are the ones who will have to make an application to a judge and offer supporting arguments; only those that succeed in convincing the judge of the merits of their arguments will see their applications granted. This is a major change to operational procedure. Even with the burden of proof reversed, no one will be able to prevent the police from investigating if they believe they have very good reasons to do so. Nevertheless, they will first have to undertake a rigorous analysis and make a solid argument. Then, they will have to convince a Superior Court judge.

This bill is well put together and well-intentioned. If by chance it passes, journalists will be able to do their work with even more confidence. Thanks to this bill, sources will not dry up or be scared off. It just so happens that I talked to Patrick Lagacé when he was being wiretapped. I got a kick out of saying, “Hi, police officer”. When we found out just a few months ago that he was being wiretapped, that struck us all as unacceptable. We have to fix it.

Senator Carignan's bill fixes the problem. It has gone through a Department of Justice analysis, where it was tweaked. It has also been vetted by police services to make sure they can continue to do their work. We have no desire to handicap them in the work they do. We want to give them even more tools to help them do an even better job. That is what Senator Carignan's bill does. This bill is well written and will get the job done.

Unfortunately, Canada has been at the back of the pack because many countries like ours have laws that protect journalistic sources. That includes Australia, Germany, France, and Great Britain, which have laws about this. Let us hope that a majority of parliamentarians will support this bill so we can go forward.

Editors, executives, and journalists' associations alike enthusiastically applauded Senator Carignan's bill in both English and French. That hardly ever happens. I would like to read some of their comments. “Sources are scared”, said Éric Trottier, deputy editor of La Presse. “They want us to find safer ways for them to communicate with our journalists”. This bill will fix that.

Other opinions came from Michael Cooke, editor-in-chief of the Toronto Star, as well as editor-in-chief of The Globe and Mail David Walmsley, who said:

We’re here because [confidential sources] are facing enormous threats....

At a Senate committee, Mr. Walmsley pointed out that the Globe spent nearly $1 million in legal fees in 2009 and 2010 to protect the identity of a source whose revelations concluded in good and great articles.

As everyone knows, the entire press praised Senator Carignan's bill, which was passed unanimously by the Senate. Professionals were even called in to amend the bill and make it as relevant as possible. The Department of Justice carefully vetted it and acknowledged it was good piece of legislation.

Among other things, the bill clearly defines the journalistic profession, protects journalistic sources, and ensures that police officers will still be able to do their job. The burden of proof will be reversed, which will only strengthen their authority when they conduct an investigation, especially since Superior Court judges will be the ones authorizing them, when required.

This is an excellent bill. Today is a good day for democracy. It is a good day for freedom of the press. I hope that my colleagues will all agree on this bill.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:25 p.m.
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Gatineau Québec

Liberal

Steven MacKinnon LiberalParliamentary Secretary to the Minister of Public Services and Procurement

Mr. Speaker, as a Quebecker, I share my colleague's concerns regarding the inappropriate surveillance our media have long been debating. Fortunately, we have had the freedom to debate it. In many countries, people do not have that freedom. I join my colleague and share his concerns regarding the protection of sources and the best way to ensure that journalists can do their jobs and report the facts fully and freely.

The journalism profession is in transition. This issue is certainly worth debating. I am pleased that we can debate it here in this place.

That said, I have a question that my colleague might not like. It is a bit of a paradigm shift for the Conservative Party. The member was not here, so he can be forgiven, but for 10 years, cabinet meetings were held in secret, only a small number of journalists were allowed to ask questions, and scientists were forbidden from communicating with journalists.

Does the member think that this bill is somehow a way to win back the journalistic profession?