This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.
This bill has received Royal Assent and is now law.
This is from the published bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
The House resumed from September 19 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 third time and passed.
Journalistic Sources Protection ActPrivate Members' Business
September 29th, 2017 / 1:30 p.m.
NDP
Hélène Laverdière NDP Laurier—Sainte-Marie, QC
Madam Speaker, I thank my colleagues for their warm reception. I am delighted to rise here this morning to speak to Bill S-231 on the protection of journalistic sources.
Journalists play a vital role in our democracy. Parliament is a fundamental democratic institution, but I believe that journalism is, as well. Just look at what programs like Enquête and The Fifth Estate have achieved. Those are two of the most commonly used examples, but they are not the only ones. All journalists, including our friends in the parliamentary press gallery and parliamentary correspondents—they all do extremely important work.
In order to do their job, however, they must be able to work freely, without undue interference. Unfortunately, we have seen a very troubling trend in that regard. There have been some disturbing examples, like the ones reported in Quebec, specifically in Montreal involving Patrick Lagacé and Joël-Denis Bellavance, but we have also seen a broader, long-term trend that should be setting off alarm bells among those who care about our democracy.
For example, under the Liberal government, Canada's global ranking for freedom of the press dropped 14 points. That raises a lot of questions. That is why Bill S-231 is a real step in the right direction, quite timely, and so important.
The bill will do a number of things. It will allow journalists to better protect their sources. That is important because when journalistic sources do not feel protected, they keep quiet. Speaking of sources, they are drying up. They are holding on to information that can sometimes be crucial, which prevents journalists from giving us the complete story and getting to the bottom of things.
Through the proposed legislative changes in this bill, a journalist could refuse to disclose information if he believes that the confidentiality of his source would be compromised. In fact, the onus is reversed. Now it will be up to the police to prove that the information they are looking for is more important for public safety than the right to protect sources. That is a key component.
We are also going to take the power to issue search and surveillance warrants away from justices of the peace. Obviously, we still need some judges to have this power, so it will be transferred to superior court judges. I think this is a very important change. I would like to cite one figure I find quite surprising: 98% of the search or surveillance warrants requested by Montreal police were granted. I think that is a very high success rate. It is not that I do not trust the police or think they are not being diligent, but that percentage seems a little high to me. I think it is a good idea to keep a close eye on this.
Let us take a closer look at what this bill is proposing. A judge will be able to appoint defence counsel, of a sort. Normally, when this kind of warrant is requested, the journalist or media outlet being targeted is not notified.
Obviously, someone who wants to conduct a search or surveillance is not going to notify the target. The target does not know what is going on. Having a special advocate to defend the rights of the journalist or media outlet will ensure that all perspectives are taken into account and result in a more fair and comprehensive legal process. There are other elements that I will not mention here today, but I think they are all very important.
Nevertheless, I want to emphasize that this bill is not perfect. During the Senate debates, the definitions of “media” and “journalist” were narrowed somewhat. We have so many platforms nowadays that it is hard to pin down who exactly is a journalist, who is a part-time or full-time journalist, and what counts as traditional media versus new media. It is important to work with fairly broad definitions of “journalist” and “media” even if that means judges have to make their own calls about that as necessary.
This is an important bill whose time has come. I know the Liberals slowed the process down a bit, but I think they eventually came around to our view that we really have to pass this bill quickly. I hope that this bill will be sent to committee soon and come back to us for third reading before too long. That is all I have to say.
Journalistic Sources Protection ActPrivate Members' Business
September 29th, 2017 / 1:35 p.m.
Conservative
Steven Blaney Conservative Bellechasse—Les Etchemins—Lévis, QC
Madam Speaker, as I was saying earlier, I had the opportunity to be here in the House to hear the farewell speech of former NDP leader Ed Broadbent. He said that we tend to focus more on what divides us, that 80% of the time we are in confrontation mode, and 20% of the time, we are not talking about what unites us.
I have to say that I am very pleased to rise in the House today following my colleague from Laurier—Sainte-Marie, only to agree with her and the rest of the House, and support an important bill that, in a way, preserves one of the pillars of our democracy, specifically, freedom of expression.
I would first like to commend the hard work done by the bill's sponsor, my Conservative colleague from Louis-Saint-Laurent, who is himself a former journalist and who understands, from first-hand experience, the importance of being able to protect journalistic sources. Unfortunately, in recent years, these sources have been mistreated, and there have even been attempts to expose sources that have revealed some of the scandals that unfortunately occur in our public institutions and elsewhere. Hats off to my colleague from Louis-Saint-Laurent for taking the lead on this bill.
My colleague was only able to sponsor this bill because, in the wake of a scandal that erupted in Quebec, Conservative Senator Claude Carignan took the bull by the horns and proposed the bill we are discussing today, Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code regarding the protection of journalistic sources. Senator Carignan tabled his bill less than a year ago in November 2016. The bill was passed by the Senate in April 2017, which shows how fast it has progressed.
Last spring, the bill was tabled in the House, where it was slightly amended with the collaboration of the government, the NDP, our sponsor, and our party. Now we are at the final stage in the House, the statements leading up to the vote at third reading, after which the bill will move forward. Since the House of Commons has made amendments, the bill will have to go back to the Senate for the changes to be approved. It is interesting to note that this time, it is the House of Commons that is acting as the chamber of sober second thought for the other place.
The bill we are discussing today, as my colleague said, introduces a key component: it changes the burden of proof. That is one of the key components of the bill. What is more, my colleague from Louis-Saint-Laurent mentioned that this bill was reviewed by the Department of Justice and police forces to ensure that it is balanced.
According to La Presse, the interesting thing about this bill is that it will take Canada from slacker to leader. We will be on par with countries that have measures to protect journalistic sources, countries such as Australia, Germany, France, and Great Britain. This is a positive outcome to an alarming situation. Let us not forget that a Quebec journalist, Patrick Lagacé, was under police surveillance by a municipal police force. That is troubling.
This is nothing new. In 2007, a former Bloc Québécois MP, Serge Ménard, introduced a similar bill. Unfortunately, we were under a minority government at the time and the bill died on the Order Paper.
Today, we truly have an opportunity to achieve the desired result and a chance for the bill to receive royal assent. I will come back to that a bit later.
Of course, journalists like Patrick Lagacé were wiretapped. Closer to home, Senator Claude Carignan reminded us that among the examples of journalistic revelations based on confidential sources wanting to reveal information, there was the famous sponsorship scandal.
Globe and Mail reporter Daniel Leblanc relied heavily on information from a confidential source known as “Ma Chouette” in writing a series of articles on the sponsorship scandal. The confidential information he got from his source about fraudulent activities related to the sponsorship scandal resulted in what was certainly Canada's biggest political scandal in recent decades. The problem is that Mr. Leblanc, who did his job to protect democracy, had to fight tooth and nail to defend himself in court and protect the journalistic source who enabled him to expose the scandal.
If not for those whistle-blowers, if not for people being able to talk to reporters in strict confidence, hundreds of millions could have been squandered without the Canadian people ever getting wind of it. In a healthy democracy, the media function as a check and balance and journalists do enjoy press freedom. That is a basic right, but, as we saw with Mr. Leblanc, who was taken to court, it is a fragile one.
I would like to quote a Supreme Court ruling, because it is important. The top court asked us to take action, in a sense, because we have a constructive dialogue with it. In the National Post ruling, the court states:
The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions. There is a demonstrated need, as well, to shine the light of public scrutiny on the dark corners of some private institutions.
The Supreme Court goes even further:
...unless the media can offer anonymity in situations where sources would otherwise dry-up, freedom of expression in debate on matters of public interest would be badly compromised.
Freedom of expression is one of the pillars of our democracy. It is what is at stake here today, and what we want to protect. As I have already mentioned, and as we have heard in previous debates, the bill aims to protect sources, reverse the burden of proof, and clarify the definition of “journalist”. In addition, if this bill passes, going forward, only Superior Court judges, as set out in section 552 of the Criminal Code, will be able to rule on the terms and conditions. In Quebec, it would be a Quebec court judge.
Time flies, but I just want to say that this bill provides parameters. In particular, it provides a definition of “journalist”. The purpose is not to place journalists above the law, but rather to give them the tools to protect their journalistic sources. It is a bill to protect journalistic sources.
In closing, I want to quote Senator Carignan:
Honourable senators, the purpose of this bill is to protect the best interests of Canadians and preserve their trust in the integrity of their institutions. It is about protecting ourselves against attacks on one of the pillars of our democracy, Canadians' right to information and sound administration of their public institutions.
There is no better way to defend this bill than to quote Senator Carignan.
My colleagues and I know that politics is a matter of trust. We know how important it is to maintain trust between the public, our political institutions, and our public institutions. We truly have a chance to do that today, especially considering that the symbol of our democracy, the governor general, will take office next week. I hope that with the co-operation of hon. members of the House of Commons, we will give her the opportunity to stand up for freedom of expression by giving royal assent to this bill to protect journalistic sources.
Journalistic Sources Protection ActPrivate Members' Business
September 29th, 2017 / 1:45 p.m.
Liberal
Mona Fortier Liberal Ottawa—Vanier, ON
Madam Speaker, I thank you for this opportunity to speak to Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).
Please allow me, Madam Speaker, as others have done before me, to express my gratitude to the Senate sponsor for his hard work and dedication in relation to this important bill. My thanks also go to my colleague opposite, the member for Louis-Saint-Laurent, for his role in helping move Bill S-231 expeditiously through the House. Finally, I would like to thank the various witnesses who appeared before the Standing Committee on Public Safety and National Security during its study of the bill, including representatives of the media who shared their compelling stories and the important challenges they have faced in protecting the confidentiality of their sources in the course of doing their work, particularly in the aftermath of the events in Quebec last fall.
Evidently there is overwhelming support for the bill's overall objective. This bill truly reflects a multi-partisan consensus. All agree that due consideration must be given to the protection of journalistic sources. This is true not only when someone is seeking the disclosure of a document or information before a court that would identify a journalistic source but also when law enforcement officers are seeking a warrant, or other court orders, to obtain information or documents relating to a journalist.
Before I get into the various measures proposed in the bill, I would like to remind members that Canadian law is not silent in this regard. In fact, the protection of journalistic sources afforded by common law and the Constitution are rigorous.
Because of this, we have a responsibility to ensure that this bill reflects the common law as much as possible to avoid unintended consequences. More specifically, we have a responsibility to ensure that we do not unintentionally undermine existing protections. We must also ensure that the new protection measures introduced by the bill would apply in all appropriate cases, but only in appropriate cases. I will come back to this shortly.
This, in essence, is what the proposed amendments to Bill S-231 made by the public safety committee are all about. As we know, Bill S-231 would amend two acts. The first set of proposed amendments relates to the Canada Evidence Act. The amendments are aimed at protecting the confidentiality of journalistic sources in the courtroom context. The second set of amendments relates to the Criminal Code and seeks to protect confidential journalistic sources in the investigative context by introducing a new process for the issuance of search warrants, and other orders, in relation to journalists' communications and their belongings.
I will focus first on the second series of amendments because they target the main concerns arising from the Lagacé case, which had to do with whether common law protections for the confidentiality of journalistic sources are in effect given due consideration when warrants and orders are issued against journalists.
In essence, the new process proposed in Bill S-231 for obtaining warrants and orders concerning journalists would not only codify the existing common-law protections but would also add additional safeguards to ensure a high level of scrutiny when the state wished to intrude on the privacy of a journalist. For example, such warrants would only be issued by superior court judges, and only if there was no other way to obtain the information and if the public interest in the investigation of the crime outweighed journalists' right to privacy in doing their work. Also, the resulting evidence would be automatically sealed. All these new measures would be designed to protect the confidentiality of journalistic sources at the investigative stage, before the state has brought charges or obtained evidence.
The amendments that the Standing Committee on Public Safety and National Security made to the new process and to the changes to the Criminal Code proposed in Bill S-231 can be summarized as follows: first, the override clauses were removed from the proposed changes to the Criminal Code in order to prevent potential conflicts with other federal laws, particularly with regard to matters of national security and privacy protection. The rules set out in Bill S-231 are sufficiently clear and there is no need to override other federal laws in this regard.
The second amendment relates to the scope of application of the proposed Criminal Code process in practical terms. As originally drafted, the new requirements for police to apply to a judge of a Superior Court for a warrant, authorization, or order relating to a journalist would have applied in all cases where a journalist was involved, regardless of whether police were actually aware that their investigation related to a journalist.
This needed to be fixed, because in real life, particularly in this day and age of online crime, police do not always know the identity of the suspect, let alone what that person does for a living. Unless police know a journalist is involved, they cannot logically be expected to apply the new Criminal Code process. The amendment made at committee makes it clear that the new process only applies if police are aware that a journalist is implicated.
That said, if and when police subsequently find out that their investigation relates to a journalist's communications, the amendment would require that they apply to a judge at a Superior Court so that the warrant or order can be confirmed and appropriate conditions can be imposed to safeguard journalistic sources. In the meantime, police would be prohibited from examining the evidence and from making copies of it. I believe this is a significant improvement to the bill.
Another important issue with regard to the proposed new Criminal Code process for issuing warrants and orders in relation to journalists—and I think we are all in agreement on this aspect—is that this process is intended to protect the confidentiality of journalistic sources. It is not, however, intended to protect journalists from criminal investigation and prosecution when they engage in criminal conduct.
The original version of Bill S-231 did not make that distinction. The changes made by the Standing Committee on Public Safety and National Security clearly state that the new Criminal Code criterion for issuing a warrant, authorization, or order relating to a journalist does not apply when the journalist engages in criminal conduct.
Such a warrant or order would, however, still be issued by a judge of a Superior Court, and, where necessary, the judge would be able to protect the confidentiality of journalistic sources by ordering that some or all of the evidence be sealed. This, in my view, is a very sensible and necessary amendment.
Insofar as Bill S-231's proposed new Canada Evidence Act provisions are concerned, it is important to remember that they seek to protect confidential journalistic sources by allowing a journalist to object to the compelled disclosure of information or document on the grounds that it identifies, or is likely to identify, a confidential journalistic source. The provisions would also ensure that disclosure in such cases is only authorized if certain conditions are met.
I wanted to speak briefly about the amendments made by the Standing Committee on Public Safety and National Security, but since I have very little time left, maybe I can ask one of my colleagues to present them.
In closing, the amended bill we are proposing will provide better protection for confidential journalistic sources, in the interest of all Canadians, and it deserves everyone's support.
Journalistic Sources Protection ActPrivate Members' Business
September 29th, 2017 / 1:55 p.m.
Scarborough Southwest Ontario
Liberal
Bill Blair LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada
Madam Speaker, I am very pleased to have the opportunity to rise in the House today and speak to Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code, otherwise known as the journalistic sources protection act.
I would like to take this opportunity to express my gratitude. There are sometimes issues that arise in the House for which there is all-party agreement that action is necessary and appropriate. In this case it is very appropriate for us to take the opportunity to acknowledge, first of all, the outstanding work of Senator Carignan, with the assistance of Senator Pratte, in ensuring that this very important issue was brought forward, as they sponsored bringing Senate Bill S-231 before the House. I would also like to take the opportunity to thank and acknowledge the work of the member for Louis-Saint-Laurent for helping bring the bill before the House.
The issue that is contained within Bill S-231 is an issue that affects and concerns all Canadians in the aftermath of the Lagacé issue that arose in Quebec. In other instances as well there is legitimate concern among Canadians about the protection of our journalists and journalistic sources. The independence of a free press is the hallmark of our democracy, and it is critical. All members of the House recognize the importance of protecting our journalists and allowing them to do their job.
The bill before us today reflects that shared value that everyone in the House and all Canadians feel about the importance of the fifth estate, of journalists, in helping keep Canadians informed and in having the ability and the freedom to bring forward issues that might not otherwise be made public, thereby protecting the rights and the values of all Canadians.
It is also important to acknowledge the important work that our Standing Committee on Public Safety and National Security did. I want to thank the chair, the hon. member for Don Valley West, and the members of that committee for the very conscientious way in which they approached the bill to ensure that it reflects long-standing traditions in our common law and creates protections while upholding and maintaining the important values that were represented in the Senate bill. Frankly, as a former police officer, I feel that the clarifications that the public safety committee brought to the bill did much to restore all Canadians' confidence that the law will be appropriately applied.
In particular, I wanted to acknowledge the work of the committee to ensure that this legislation did not provide a shield for criminal behaviours that might be perpetrated by a journalist, yet provided those absolutely essential protections for journalists when doing their job. I am very confident that the legislation that has been produced and is before the House is worthy of all-party support.
While the amendments brought forward by the public safety committee are limited in number and scope, they are important for very many reasons. They ensure that the new measures in Bill S-231 will apply in appropriate circumstances without undermining the important protective measures that are arguably already in place in a very complex area of the law. Second, I believe that the work of the SECU committee in bringing forward these amendments provides more clarity in terms of how these measures are intended to be applied in practice. This will be invaluable assistance to those engaged in journalistic practice throughout the country and those who are tasked with the important job of keeping all of our communities safe.
I believe Bill S-231, as amended, will translate into better protection to all confidential journalistic sources to the benefit of all Canadians and I believe it is worthy of all-party support.
Some hon. members
Question.
The Assistant Deputy Speaker Carol Hughes
The question is on the motion. Is it the pleasure of the House to adopt the motion?
Some hon. members
Agreed.
No.
The Assistant Deputy Speaker Carol Hughes
In my opinion the yeas have it.
And five or more members having risen:
Pursuant to Standing Order 98 the recorded division stands deferred until Wednesday, October 4, immediately before the time provided for private members' business.
It being 2:03 p.m., the House stands adjourned until Monday at 2 p.m. pursuant to order made on Friday, September 22.
(The House adjourned at 2:03 p.m.)
The House resumed from September 29 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 third time and passed.
The Speaker Geoff Regan
The House will now proceed to the taking of the deferred recorded division on the motion at third reading stage of Bill S-231 under private members' business.
(The House divided on the motion, which was agreed to on the following division:)