Journalistic Sources Protection Act

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

Status

This bill has received Royal Assent and is, or will soon become, law.

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.

Votes

Oct. 4, 2017 Passed 3rd reading and adoption of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)

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?

Journalistic Sources Protection ActPrivate Members' Business

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

Gérard Deltell Conservative Louis-Saint-Laurent, QC

Mr. Speaker, though I find it thoroughly disappointing, I cannot say that I am surprised by just how low the Liberal party can go on this otherwise fine day for democracy and freedom of the press.

Need I remind the House that the member for Louis-Saint-Laurent used to be a reporter, that the member for Foothills used to be a reporter, that the member for Charlesbourg—Haute-Saint-Charles is a magazine editor, of which there are many among us, and that the member for Thornhill is a distinguished journalist who, among other things, witnessed the election of Pierre Elliott Trudeau in 1968? I am sorry, but this is too much; I am so utterly disappointed by this clumsy, amateurish, and oh so Liberal display of partisanship.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:25 p.m.
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Winnipeg North Manitoba

Liberal

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

Mr. Speaker, I always appreciate the comments of my colleague across the way.

One of the things I have witnessed over the years is the significant way in which media have actually evolved. That is one of the things I believe we also need to take into consideration. I can recall when I was first elected—and like the member opposite, I too have served in a provincial legislatures—there was a great deal more media attention, at that point, at the local legislature levels. At least, that is what I found.

I wonder if my colleague across the way has anything he would like to add, in terms of the modernization or the changes we have witnessed. Are there some other things that maybe we should be taking into consideration when we talk about legislation such as the member opposite is proposing today?

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:30 p.m.
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Conservative

Gérard Deltell Conservative Louis-Saint-Laurent, QC

Mr. Speaker, that is a great question. I do appreciate it. The point is that, for sure, this is a very evolving situation. When I was a journalist just eight years ago, one of my last reports was about Facebook. Believe it or not, Facebook was not permitted in the national assembly. It was considered social media, just for the fun of it. It is crazy to see how important it is. Can members believe that politicians did not have the right to have their Facebook page in the national assembly in 2008? That was the reality of the time. It is moving so fast.

Yes, for sure, journalists shall address new issues day after day.

Nothing is perfect, for sure, but I think in that case, we cover so many areas to protect journalists' sources that today, it is correct. Maybe in two years from now, we will have to refresh this piece of legislation; we will welcome that kind of work.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:30 p.m.
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Louis-Hébert Québec

Liberal

Joël Lightbound LiberalParliamentary 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.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:40 p.m.
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NDP

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.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:50 p.m.
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Conservative

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.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:55 p.m.
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Conservative

John Barlow Conservative Foothills, AB

Maybe that will be next.

These were transformational stories that will not only will be remembered for generations, but also forced governments to change how we did things to ensure these things did not happen again. We want to protect our constituents.

Protecting sources is fundamentally important. The journalists and the sources out there are protecting us, shining a light on things that need to be exposed, and we need to ensure they have the opportunity to do that.

We have to give journalists the tools they need to do their job properly. That is another fundamental piece of the bill.

Journalists have a very difficult job, but sources and journalists have to understand they are protected, that they can do their job unmolested in the quest for the truth. We have to support them in that quest. This quest that journalists are on takes them to where history is made. I want them to take that journey, to find that quest for the truth unmolested, knowing they are safe and that we as legislators are here to back them up as well.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 5:55 p.m.
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Winnipeg North Manitoba

Liberal

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

Mr. Speaker, it is a pleasure to rise and provide some comments on what is a very important bill. I look forward to hearing more members express their thoughts on it.

I have had many experiences over the years with journalists. I think it is safe to say that when we think of Canada as the great nation that it is, there are some very important components to the foundation of who we are. We can talk about our elections and democracy. We can talk about how important it is that there is that interplay between our Parliament and our media, this sense of accountability and transparency, and how that is best had through interactions between politicians and the media, but it goes far beyond the issue of politics.

We only need to ask Canadians what is important to them today. One of the things I often make reference to inside this chamber is that in the early 1980s, Pierre Elliott Trudeau brought in the Canadian Charter of Rights and Freedoms. That has become a part of our Canadian values. We genuinely appreciate the role the media play in our society. I believe our Charter of Rights ensures that we continue to have a free media that feels comfortable reporting on the facts of matters. There are certain tools that the people in the media require in order to do the job that they do.

I want to use as examples some of the things that I have had to go through. They have not always been good reports that I have had with the media, but good or bad, I have always accepted the importance to recognize the independence of the media and what we can do to support that independence. That is why I was glad when we had the mandate letter from the Prime Minister to the minister responsible. In that mandate letter to the Minister of Justice, the Prime Minister tasked her with ensuring that the rights of Canadians are protected and that the guarantees that are set out in the Charter of Rights and Freedoms are respected.

The minister herself has recognized that freedom of the press is a fundamental Canadian value stated in the charter. Moreover, on May 3 during question period, our Prime Minister made it very clear that protection of journalistic sources is something our government strongly believes in. Let there be no doubt that this government recognizes and respects the independence of our media.

When I posed the question, I talked about how the media have really changed. Before, the industry tended to be a bit more focused on TV, newspapers, and radio. Those would have been the big three, if I can put it that way. Today, I am not convinced that those are the big three anymore. Because of social media and the Internet, different pressures are being applied to other media outlets. Today, quite honestly, there are some media networks where, if people get that 10-second clip, it will do them well. It can reach many thousands and hundreds of thousands of Canadians. Today, I recognize to what degree social media is playing a much larger role. Facebook is a great example of that. It is truly amazing. I believe that Canadians, on a per capita basis in the world, are more connected to that social network than the people of any other country in the world.

We are seeing a great deal more advertising on Facebook. If every member in the House is not on Facebook, all of us ought to be in order to communicate our messages, not only to constituents but also to the broader community. YouTube has been utilized in this way. I am not the most computer literate individual, but I recognize that there have been significant changes.

One change I recognized relatively early in the game was blogging. It is important that we factor in many aspects of journalism. It does not take much for individuals to say they are journalists and to start writing stories or blogging on the Internet. There are very real and tangible credentials. There is obviously a great difference between, let us say, CKY or the Winnipeg Free Press and John Doe's blog on the Internet. There is a significant difference. We need to recognize that, at least in good part. That is not to take anything away from John Doe. John Doe could have a super fantastic blog and could have literally hundreds or thousands of dedicated followers. It is a way we often reach out to our communities.

We often underestimate some of those community efforts. There are ethnic and community media outlets in Winnipeg. Pilipino Express, Ang Peryodiko, Filipino Journal, and Artista are four ethnic community newspapers that have done so well, even with the competition from mainstream media. When I was the immigration critic, I visited Toronto. I met with some Indo-Canadian newspapers and media outlets. I was amazed at how many there are in print and radio, in particular.

We need to look at the bigger media picture and ensure that media remains a very important and protected industry. With respect to this bill, it is the individuals who take the time to become investigative journalists, who will do the background work that is quite often required to uncover things, some of which may be uncomfortable. My colleagues across the way cited a couple of examples. I too could cite a couple of examples, such as the Senategate issue that occurred just a couple of years ago.

No doubt many examples could be used, whether it is at the national level or provincial level or in other jurisdictions, where there have been outstanding reports and investigative journalism. With the efforts of journalists, we have a better, more educated society. Whether it is government, non-profits, or even private industry, there is a higher sense of accountability because of the independence of journalism. The legislation from the Senate which my friend has sponsored is something on which we need to have a healthy discussion in the chamber, and I look forward to hearing what others have to say.

From my perspective, when we think of that journalist, we have to go beyond stating the obvious, the main stream media. We need to factor in the Internet, the different community newspapers, and radio stations. I felt that was a good thing to contribute to the debate and I look forward to further comments by others.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 6:05 p.m.
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Liberal

David Graham Liberal Laurentides—Labelle, QC

Mr. Speaker, this is a fascinating topic. Like many of my colleagues here, I spent a long time as a journalist, but in somewhat more in the tech field than most. I spent nine years as an editor and freelance journalist with an online technology publication, so I was way ahead of the curve. I started writing in 2000, entirely online. We had no print publication. By the end of 2008, we were up to about two million monthly readers on the website. It was called linux.com at the time. The company was sold, without the staff, and that is how I ended up leaving journalism, which is another whole story.

The subject in front of us is protecting sources. I cannot say how important that is to journalism, no matter what an individual is covering, no matter where he or she is. It is a very important topic to discuss. I have not had a chance to read the bill closely, but I look forward to doing that when I have the chance.

Writers have to go out and network. It is really important to know the sources, the companies, and the people who working in the trenches. When they need information, they feel comfortable talking to us and telling us what they know. They use that information to write stories without revealing who it is. This is a really important topic. I thank both the senator and the member for Louis-Saint-Laurent for bringing this before us.

When I was writing, one of my favourite things to do was to write satire pieces. Around 2003, the state of California, where my company was based but I was not and had not been there at the time, was going through an entertaining state election. It had removed the governor and some 100-plus candidates were running for governor, including Arnold Schwarzenegger who went on to become the governor of the state of California. I am sure many remember that particular moment in time.

I wrote a satire piece declaring that Linus Torvalds, who was the creator of Linux, was getting into the race. The article was fairly popular in the technical community. I invented a number of quotes for him in this satire piece. What amazed me was a couple of other publications took my clearly marked satire piece, ripped my quotes, and used them as their own in an article about the same thing, making it a real story. It certainly was not the intention, but it made for a good laugh.

Protecting sources has another side to it. Journalists need to have sources. They need to have legitimate research. Real journalism truly requires it. The topic before us is very important and I am certainly enjoying listening to this debate.

I just wanted to get a few quick words on the record.

Journalistic Sources Protection ActPrivate Members' Business

May 11th, 2017 / 6:10 p.m.
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Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

Mr. Speaker, I know that my time is limited, but I want to comment on this bill emanating from the hard-working member for Louis-Saint-Laurent. We appreciate his efforts in getting this bill into this place from the other place.

This bill brings up a number of questions of law. I spent many years practising as a lawyer. The bill engages the charter under subsection 2(b) and under section 8, of course. Subsection 2(b) protects freedom of the press. Section 8 protects all Canadians from unreasonable search and seizure. It also engages the common law on a number of occasions.

There is something called privilege under the Canada Evidence Act and under common law in Canada. There is a specific privilege, journalistic source privilege, that is engaged from time to time. It is meant to protect journalists and to protect their sources, because without unfettered access to these sources, journalists could not do their jobs. Subsection 2(b) of the charter would therefore be undermined, freedom of the press would be prejudiced, and our democracy would suffer.

I think everyone in this House agrees that a robust and free press is a fundamental pillar of a democratic society. We would be hard pressed to find any member who does not agree with that. That is why this bill is an important one, which the House should give due consideration to, considering all the consequences. It puts it in the proper legal framework as well as in the sense of a social framework.

We have heard many members speak eloquently about how journalism has changed, how media has changed, and how people are getting their news from other sources. I do not disagree with that at all. That is quite apparent.

Something that has not changed, something that is almost immutable, is that journalists, especially investigative journalists, need to have the proper tools to do their jobs. Whether their stories are written in the print media, spoken on the radio or on television, or frankly, are on their own blogs on the Internet or on their social media pages, when journalists rely on sources to get their stories, generally speaking those sources ought to be protected.

I mentioned the common law before. This has been known as the Wigmore test. It has been considered by the Supreme Court. There is a significant threshold that needs to be met.

Journalistic source privilege is assessed on a case-by-case basis, but it is not something that should be taken lightly.

When the House considers this private member's bill, it would serve us well if we gave some consideration to how the law exists now. I think our analysis must be this: does the law need to be improved? Frankly, I am not in a position to come to a conclusion just yet. I appreciate the time to consider this bill.

The Wigmore test, as it is known, and it was determined by the Supreme Court in R. v. Gruenke, requires that:

(1) the communications must originate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously...

That is a great old word that means diligently, deliberately, and consciously.

...fostered;

Fourth is that the public interest served by protecting the identity of the source in the particular case must outweigh the public interest in getting at the truth.

I think we have to remember number four. In essence, journalistic privilege is meant to serve the public interest, and we need to keep that in mind when we consider whether to support this bill.