Bill S-231 (Historical)

Journalistic Sources Protection Act

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

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.

Journalistic Sources Protection Act

[Marco Mendicino, Liberal, Parliamentary 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.

[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.

[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.

The House resumed from May 11 consideration of the motion 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.

[John Barlow, Conservative, Foothills, AB]

Mr. Speaker, it is a pleasure to rise to speak to Bill S-231 and speak in support of my colleague, the member for Louis-Saint-Laurent. Like the member, I was a journalist prior to this career. I was a print journalist for close to 25 years. In fact, I think I still have some ink in my veins. Once people have that, they never lose it.

There are two things I want to focus on as part of the discussion tonight. I know it has been touched on a bit before, but there are two elements of the bill that are vitally important as we move forward. I like to think that my career as a journalist really helped get me where I am right now, which is representing my constituents of Foothills here in the House of Commons. I talked to a lot to the community members. I knew the issues. I knew who the councillors were, and those types of things, but the fundamental reason why the residents of Foothills elected me in 2014, and again in 2015, was that over the years as a journalist I had earned their respect. I had earned their trust, and I believe I earned their faith. Those are so fundamentally important for a journalist, and they transfer well into being an elected official as well.

That is something we are losing in the journalism industry, that respect factor and trust. Part of that is because in this day and age of social media, alternate facts, fake news, and whatever we want to call these things that are happening right now, people are having a difficult time trusting the media that is out there now.

One of the aspects of the bill that is a great step forward is to define journalism and who a journalist is. We are seeing that the focus of journalism has certainly changed over the 20-plus years I was in the industry. Now it is who can get the information out there first, not necessarily who gets it right. That is really the core issue when it comes to Canadians losing faith in journalism.

That is why we have to take those steps to define what journalism is and who a journalist is. That can be discussed further at committee. Certainly, there are many more media to get that information out there, but Canadians have to have faith in who the journalist is and whether they trust the facts he or she is bringing forward.

The other aspect I wanted to touch on especially was the fact about protecting our sources. Carl Bernstein said:

The lowest form of popular culture—lack of information, misinformation, disinformation, and a contempt for the truth or the reality of most people's lives—has overrun real journalism.

That touches on what I was saying about the lack of trust we have in journalism today. That is something the bill will help to address a great deal.

On protecting sources, in my years as a journalist, one of the big issues I dealt with was a magnesium plant that is in my constituency. It was in the circulation area of our newspaper. I was making phone calls from High River to New Orleans, to Dallas, Texas, and to Los Angeles, California. A lot of this had to do with a company many of us remember from the movie Erin Brockovich, Pacific Gas and Electric Company. I was able to track down a lot of corruption that had happened in the building and construction of that operation, which never really became operational. It became a huge white elephant for the Province of Alberta.

I would never have been able to track those things down if my sources did not have faith in me: they knew they would be kept secret. That is such a fundamental part of journalism and the media, but also a fundamental part of our democracy. As journalists, we have to ensure that our sources know they have the faith, trust, and security to come forward with information, whether it is about public spending, about government, about their community, or about misappropriation and misdeeds with businesses and corporations. We have to ensure that sources have that protection.

Many of us in the journalism industry, or even as members of Parliament, were shocked to learn that the Montreal city police and the Quebec provincial police were tapping the phones of journalists to try to track not only their sources but also their movements. Those of us in Canada just did not think something like this would ever happen. However, it has happened, and we have to take steps to ensure it does not happen again.

Take a look at our history. I was inspired to become a journalist because of some of the amazing stories that happened over the years. Take a look at Woodward and Bernstein in Watergate. Look at the Spotlight team at The Boston Globe. It shed a light on the Catholic church in Boston. What about the Liberal ad scam? Some of these things may never have been brought to light if we did not have sources who felt safe coming forward.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, despite the Liberals' obsession with living in the past, we need to remember that, last week, on World Press Freedom Day, Reporters Without Borders reminded us that Canada dropped 14 points in the World Press Freedom Index. I would like to remind members that this happened in the past two years. Those who do the math will figure out that we are coming up on this government's two year anniversary. Before resorting to petty partisanship, the government needs to realize that the status quo is unacceptable for democracy and journalism.

It goes without saying that Bill S-231 is a response to high profile cases, in particular, the surveillance of journalist Patrick Lagacé by the Montreal police. Contrary to what we heard in the government member's speech, the federal government is not safe, here in Ottawa, from these same traps and actions that threaten the freedom of the press and, consequently, our democracy.

Take for example, Vice reporter Ben Makuch who is currently in court trying to protect a source within the RCMP. He could go to prison for it.

He is facing prison because the RCMP is tyring to obtain information that will not help it at all in its investigation. On the contrary, all the information the RCMP needs is already in the public domain, in articles published by the journalist in question. I think this is a very striking example.

It does not stop there. The response provided by the RCMP and CSIS over the past weeks, months, and even years on the various incidents that have taken place are rather unconvincing. Consider the example of Joël-Denis Bellavance of La Presse, who was followed and spied on by the RCMP. I reiterate that the status quo is no longer working, and that is why we are pleased to support this bill. Indeed, we must move this forward.

Although the member for Louis-Saint-Laurent is sponsoring this bill in the House of Commons, I am sure he would agree that it is nice to have a private member's bill, but it is high time that this government introduced something even more robust. Much bigger reforms are needed. I am not criticizing what this bill does; on the contrary, it is a first step in the right direction. However, I think a lot of work remains to be done to bring our legislation in line with the 21st century.

As the member for Louis-Saint-Laurent pointed out, social networks and ubiquitous cell phones have changed how journalists and police officers operate, and are still changing things almost every day. We have a lot of catching up to do if we want a system that works the way we want it to.

People have explained what the bill will do, but I just want to go over that again. In a situation like what happened with the VICE reporter, that means reverse onus for protecting sources. This is very important because it does provide a way to ensure public safety if the police can prove, say, that this is the only way it can get information that would save lives. We know that option exists.

I think it is appropriate for the bill to place the onus on the police, not on journalists, who would have to prove that their sources need to be protected. I think this is essential. In addition, warrants are issued by Superior Court judges, not justices of the peace. That is a very important element that strengthens and tightens up the system a lot to make sure that journalistic sources are properly protected.

I am going to read some quotes that I found that illustrate my point. I am not sure if it is against the rules to comment on one's own absence in the House. Unfortunately, I arrived a bit late because I had other commitments. I apologize if I am repeating what my colleague from Louis-Saint-Laurent said.

I am going to read a few comments, which are quite interesting to me and illustrate the culture that is unfortunately starting to grip journalists and their desire to do their job. Being afraid to do one's job obviously has an adverse effect on the result and, accordingly, democracy.

I will start with a quote by Tom Henheffer from Canadian Journalists for Free Expression. Speaking about the case of the Vice journalist, he said:

He said, “Every civil society organization with ties to free expression in the country are supporting him and condemning the fact that the government is violating press freedom in such an aggressive way. We feel this is a serious blight on Canada's international reputation, and a major mistake on behalf of the RCMP.”

I have another interesting quote, this one from Denis Lessard, parliamentary bureau chief for La Presse in Quebec City. He may have since changed positions. I do not always follow what is happening in Quebec City because I have enough on my plate. He was talking about the police surveillance scandal in Montreal and the SQ. He said:

I have covered politics for almost 40 years, [I am not going to state my age, but let us just say that we are talking about a seasoned professional] and have often reported on politically sensitive topics. You tell yourself that it is always possible that you are being spied on by police, but you are also convinced that they would never dare go that far. Well, it seems we were wrong.

This illustrates the point I was making to show that a journalist starts to change his attitude toward police work even after 40 years of experience with sensitive topics. Let us just say that it has a dampening effect on the work that is done.

I have another quote, this one from Marie-Maude Denis from Radio-Canada:

I have always been extremely careful with regard to my confidential sources, but of course when ‘fighting’ against the police you are always outgunned, as they have access to this kind of investigative tool. The future will tell us or maybe we will never know everything they have discovered about me.

Once again, this perfectly illustrates the change in culture. Journalists would indeed like to know, but they remain in the dark. They wonder what information police departments or other national security agencies, such as CSIS, have on them. That is very worrisome.

I will deviate a little from the matter before us, specifically the bill. I just want to make a general comment. Earlier, I said that there is much work to be done. For the NDP, it goes without saying that the reforms are a good example of that. Our position is that Bill C-51 should be rescinded. We heard groups of journalists express concerns about certain provisions on criminalization and terrorist propaganda. These are very important concerns for the journalists covering these stories or those that infiltrate terrorist cells in order to report facts of public interest. Mainly, we are talking about journalists working for smaller media outlets that have neither the financial nor the legal resources that larger organizations have to give their employees greater and more robust legal protection during court proceedings. That is a very important consideration to bear in mind.

I want to end with a problem that we have with the bill and that we hope to fix in committee. We do not agree with the amendment adopted by the Senate regarding the definition of a journalist. After talking to some journalist groups working in the field and on this issue, we believe that the definition is too narrow and could cause problems for bloggers or journalists who work in non-traditional media.

The member for Louis-Saint-Laurent acknowledged it once again in his remarks. Social media and the Internet, among other things, are changing the field of journalism significantly. We therefore believe that judges should be given the discretion to decide whether someone is a journalist and works in the field of journalism. That would give judges enough discretion to ensure the integrity of what the bill is proposing, while also making sure that journalists working in new media or non-traditional media are not unfairly punished.

That is what we are going to propose in committee. That being said, this bill is an excellent step in the right direction. As the public safety critic, I am very pleased to recommend that my colleagues support the bill, just as I intend to do.

Of course, I would like to thank Senator Carignan and the member for Louis-Saint-Laurent for their efforts. The bill could not have been introduced at a better time, as May 3 was World Press Freedom Day. This is an issue that we should all be concerned about.

As politicians, we have all had our run-ins with journalists, but I believe that our democracy will always be better served by freedom of expression and freedom of the press, and the NDP will join all those who are working toward those goals.

[Joël Lightbound, Liberal, Parliamentary Secretary to the Minister of Health]

Thank you, Mr. Speaker, for the opportunity today to speak to Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).

Before I begin my speech, and in light of the little exchange we just heard, I still feel compelled to congratulate the member for Louis-Saint-Laurent. On the whole, I believe he and I agree on the issue of the protection of journalistic sources. Regarding the past 10 years, I am sure we will have other opportunities to discuss the issue, as we do when other subjects come up, but I still tend to agree with the member for Gatineau.

That being said, I would like to take this opportunity to thank Senator Claude Carignan, who did truly phenomenal work, for his diligence in this file and for all the work he did on Bill S-231. I think that is worth mentioning.

The overall objective of the bill is laudable, which is to ensure that the protection of journalistic sources is given due consideration whenever they are at issue in Canadian courts. As we all know, this bill was tabled in response to recent 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.

Let me be perfectly clear. Freedom of the press is a fundamental Canadian value, critical to Canadians and to Canadian democracy. I think we can all agree on that. That is why it is enshrined in our Constitution under our freedom of expression rights in section 2(b) of the Canadian Charter of Rights and Freedoms. Our government is firmly committed to defending it assiduously.

Last week, the Prime Minister himself acknowledged the importance of protecting journalistic sources to Canada's democracy, saying:

The Canadian Charter of Rights and Freedoms, now in its 35th year, established the freedom of the press as a fundamental freedom. Journalists start conversations, shine light on stories that would otherwise not be told, and give Canadians the facts they need to engage in public debate and shape events around them. A free and open press is crucial to an informed and engaged citizenry, which is at the heart of a healthy democracy.

We can find many examples of the importance of freedom of the press in Canadian society. Just last week, the 68th National Newspaper Awards honoured the best and brightest in the field in Canada.

The awards honoured, for example, reportage on the deadly opioid crisis across Canada, the tragedy of soldiers and veterans who died by suicide after serving in Afghanistan, an exposé of unsavoury practices fuelling the Lower Mainland real estate boom in B.C., the 50 years of mercury leaching in northwestern Ontario, the miscarriage of justice that resulted in a mentally ill Canadian ending up in one of America's most notorious prisons, and the investigation into the death of a four-year-old first nations foster child.

These fine examples of journalism provided citizens the information they needed to fully participate in democracy.

There is no doubt that some of them likely used confidential sources.

On that note, Bill S-231 proposes changes to the Canada Evidence Act and the Criminal Code, by creating special regimes to protect confidential journalistic sources. The Canada Evidence Act proposals would create a unique regime applicable any time the media wish to protect a journalistic source. This new regime attempts to codify the common law developed and interpreted through several Supreme Court of Canada cases. The bill effectively elevates journalistic source protection to a class privilege. It would also place the onus on the person who seeks disclosure of the information instead of the person seeking to protect the information, which is currently the case.

The Criminal Code proposals address the way in which investigative tools, such as search warrants and production orders can be obtained or executed when they involve a journalist.

Although the purpose of these proposals is to protect journalistic sources, the procedure would apply every time a journalist is the subject of an investigative tool. The bill also proposes a triage procedure that requires the gathered evidence to be sealed and a court review before the information can be disclosed to police.

The bill proposes that only a superior court judge shall authorize the use of an investigative tool on a journalist.

Many of these proposals seem like excellent improvements to the protection of journalistic sources, and our government is currently studying them closely. In doing so, there are several issues that I think we must closely consider.

We must look at how it seeks to codify the robust common law protections in this area. We should also consider that the regime would apply equally even in cases where the journalists themselves are suspected of criminal activity.

Additionally, I have some questions about the bill's provisions that would provide that the new procedures override all other laws in Canada, including those that relate to privacy and national security. We should ask whether override clauses are an appropriate tool here, as they necessarily create conflicts between statutes and can have unintended consequences as a result.

As some of my colleagues already know, the protection of journalistic sources afforded by common law and the Constitution are rigorous. For that reason, we should try to ensure that this bill follows common law as much as possible in order to avoid unintended consequences.

We must ensure that we do not unintentionally undermine these protections and that changes to the law adequately strengthen the protection of journalistic sources.

As for the protection of journalistic sources in courtrooms, the Supreme Court of Canada, in Globe and Mail v. Canada and R. v. National Post, applied the criteria test established by Wigmore to determine whether a specific journalistic source should be protected.

The Wigmore test is applied on a case-by-case basis to determine whether a source of confidential information should be protected.

Under the Wigmore test, the courts will protect the confidential source when the following conditions are met, as I am sure most members know.

First, the communications must have originated in a confidence that they will not be disclosed; second, the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; third, the relationship must be one that, in the opinion of the community, ought to be carefully and continuously fostered; and fourth, the injury that would be caused to the relationship by the disclosure of the communications must be greater than the benefit it would provide for the correct disposal of the litigation.

This differs from a traditional class privilege such as solicitor-client privilege, which is a presumed privilege recognized by the courts. In a class privilege, once individuals have established that they are members of the class, the privilege automatically protects against disclosure of certain information, and exceptions are extremely narrow and limited.

The intent of Bill S-231 is to codify the rules that apply to journalists and their confidential sources. However, as members, and especially as members of the government, it is incumbent upon us to ensure that Bill S-231 does so appropriately. In other words, we must ensure that these new rules, once codified, will apply in pertinent cases.

I would now like to go back to the amendments proposed by Bill S-231, which relate to how investigative tools are issued and executed when they relate to journalists.

This aspect of the bill is most relevant to the circumstances emanating from Quebec that gave rise to the introduction of Bill S-231. Like journalistic source privilege in the courtroom context, the issue of investigative tools targeting journalists has also been reviewed by the Supreme Court of Canada.

In Canadian Broadcasting Corp. v. Lessard and Canadian Broadcasting Corp. v. New Brunswick, the court set out a number of factors to be considered any time an investigative tool is sought against a journalist, and these include whether or not the evidence can be obtained through any other means, whether or not the information was already public and whether the execution of the tool can be tailored so as to minimize its impact on the media.

However, the court also stated that factors that may be vital in assessing the reasonableness of one search may be irrelevant in another.

We must bear in mind these words of wisdom while we debate and study this bill, and we must also ask ourselves whether the courts have the flexibility to adequately respond to these pressing issues.

To conclude, I believe it is important that we look to ensure that journalists and their sources are provided appropriate protection, but we must ensure that any reforms enacted in this area do so in a way that builds on the common law and does not adversely undermine other important societal interests.

To close on a more pragmatic note, in the end, with regard to the protection of sources, the objective of the bill is quite commendable. However, the government continues to study the different amendments and the bill before us today.

[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.

[The Chair, Liberal, Filomena Tassi]

I'm very happy to call this meeting to order. I wish everybody a good morning on this glorious day.

Welcome to the Subcommittee on Private Members' Business of the Standing Committee on Procedure and House Affairs.

The April 10 list has been replenished. We have 15 items on that list. What we'd also like to do today is add the three Senate public bills. One of them we've had previous notice of, which is Bill S-226, but two were introduced yesterday. They are Bill S-231 and Bill S-233, which we would like to add if we have consensus.

Do we have consensus to add those two Senate bills in the interests of time and efficiency?

Journlaistic sources Protection Act

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

moved for leave to introduce Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).

Mr. Speaker, with the support of the member for Charlesbourg—Haute-Saint-Charles, I am very pleased and proud to introduce this bill today, which happens to be World Press Freedom Day.

Our Senate colleagues passed this bill unanimously. It is a remarkable piece of legislation introduced by Senator Claude Carignan. When he found out about unacceptable situations happening in Quebec and elsewhere, he decided to take the bull by the horns and introduce a bill. Our Senate colleagues did some very thorough parliamentary work, and every member of the upper house voted in favour of the bill.

As a former journalist, like the members for Thornhill, Foothills, and Rosemont—La Petite-Patrie, as well as the Minister of Foreign Affairs, I can say that today is a historic day. Let us hope that this House will pass the bill unanimously, as the upper house did.

(Motions deemed adopted, bill read the first time)

Message from the Senate

[The Speaker, Liberal, Geoff Regan]

I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate has passed the following bills, to which the concurrence of the House is desired: Bill S-226, An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act, Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), and Bill S-233, An Act to amend the Customs Act and the Immigration and Refugee Protection Act (presentation and reporting requirements).

It being 4:15 p.m., pursuant to order made Monday, April 3, 2017, the House stands adjourned until tomorrow at 10 a.m,. pursuant to Standing Order 24(1).

(The House adjourned at 4:15 p.m.)