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)

The House proceeded to the consideration of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), as reported without amendment from the committee.

Public Safety and National SecurityCommittees of the HouseRoutine Proceedings

June 20th, 2017 / 10:05 a.m.
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Liberal

Rob Oliphant Liberal Don Valley West, ON

Mr. Speaker, I have the honour to present, in both official languages, the 13th report of the Standing Committee on Public Safety and National Security concerning Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).

If you would allow me, I would like to thank the members of my committee for the herculean task of doing this in just 10 days, as well as the member for Louis-Saint-Laurent for sponsoring it in the House.

I would also like to thank the following people for the herculean task of getting this bill done in nine days: the clerk, Jean-Marie David; the legislative clerk, Philippe Méla; the analysts of the committee, Tanya Dupuis and Dominique Valiquet; and my staff person, Jake Eidinger.

The committee has studied the bill and has decided to report the bill back to the House with amendment.

June 19th, 2017 / 4:50 p.m.
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Tom Henheffer Executive Director, Canadian Journalists for Free Expression

Thank you.

I apologize for being late. I think we've all had experiences with Porter Airlines before. Thank you for allowing me to testify.

I am speaking today as executive director of Canadian Journalists for Free Expression, CJFE, a non-profit, non-governmental organization that works to promote and protect press freedom and free expression around the world. We would like to use our time today to speak to the importance of passing the legislation now, the definitions in this bill, and the amendments proposed by the government.

CJFE strongly supports Bill S-231, the journalist sources protection act. If passed today in its present form, Bill S-231 would be the country's first journalistic shield law, bringing us closer to compliance with international standards for the protection of sources. This is a badly needed bill, and its coming into force would be an important step forward for press freedom in Canada.

As recent events in Quebec and elsewhere in Canada demonstrate, journalists today are vulnerable to arbitrary and summary treatment concerning search warrants and production orders with regard to sources. Bill S-231 was first introduced last November, following appalling revelations that police had obtained warrants to track La Presse journalist Patrick Lagacé's phone and to monitor the phone calls of several other journalists.

Canada needs this bill now more than ever. In addition to the reports of Quebec police spying, no fewer than four Canadian journalists have been arrested this past year. VICE News' Ben Makuch continues to fight a court ruling forcing him to hand over communications with a source to the RCMP. Justin Brake of The Independent faces up to 10 years in prison for reporting on a protest. Cori Marshall, a freelance journalist in Montreal, was spuriously charged with unlawful confinement for simply covering a protest inside a government building, charges which were dropped in large part due to CJFE's intervention. Photographer David Ritchie and Global News videographer Jeremy Cohn were arrested by Hamilton Police Service for their coverage of a pedestrian collision. David Ritchie, as has just hit the news today, has now been remanded and is still facing a court date for these charges on July 20.

Canada fell four places on this year's Reporters Without Borders world press freedom index. In recent years, we've dropped from the top 10 to 22nd in the world, largely because journalists in the country are not currently protected by any shield law.

Despite our suggestions to improve this bill, which I will lay out in a second, we believe this is significant and necessary legislation, and we would impress upon committee members the importance of its swift passage. Let me be clear: Canada needs this legislation to be in effect today. However, passage of this bill in its present form is only a first step to addressing many issues facing journalists in Canada today. This is because many of the definitions are still too restrictive. Further reforms will be required in the future so these protections reflect the reality of Canada' s modern media landscape, but we do not believe that this should prevent the passage of this bill in this session.

For example, the bill has a narrow definition of who can legally call themselves a journalist. We would suggest the definition should eventually be widened to reflect the emergence of newer practitioners of journalism, such as bloggers, and to include the many journalists who would not list the craft as their main occupation, such as student journalists and freelancers. They also deserve to be covered under this law.

We endorse the amendment proposed by Matthew Dubé to broaden the definition to:

any person who contributes directly, either regularly or occasionally, to the collection, writing or production of information for dissemination by any media, including newspapers, magazines or other print media, or television, radio, online dissemination or other electronic media, or any person who assists that person in doing so.

We see similar problems in the current definition of a journalistic source, which reads:

a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source.

The deficiencies in this definition are vividly demonstrated by the ongoing case of Ben Makuch of VICE News. Makuch is currently seeking leave to appeal to the Supreme Court a court order to turn over his communications with his source to the RCMP. The order against Makuch sets a precedent that is potentially ruinous and has wide-ranging implications for press freedom and the integrity of journalism in Canada. While we strongly support Bill S-231, it must be stated that this will provide no protection in the context of the Ben Makuch situation because, although his source refused to disclose his identity, he did not conform to the strict definition of a confidential source as defined in this bill. This leaves our country open to a situation in which a young Canadian journalist could soon be behind bars for simply doing his job.

Clearly, this demonstrates a need for stronger legal protections. Again, we believe this can be fixed in later legislation and this should not prevent this bill from passing in its current form. Requiring an undertaking of confidentiality is problematic, as sources, by their nature, are confidential. Journalists and their editors have a right to decide which parts of an interview are published publicly, regardless of whether that interview was with a confidential source or for attribution.

The definition we propose is as follows: “journalistic source” means any source that transmits information to a journalist. This is broader than the current bill, but there are two reasons for this. One, since a court or police agency cannot know whether a source is in fact “confidential” or not in advance, this should not be part of the threshold that triggers special care. Two, as in the Makuch situation, compelling information about any source, whether or not they meet the strict definition of a confidential source, has a chilling effect. While this change may be outside the scope of consideration for the current bill, the protection of sources that are not anonymous must form a part of further discussion and factor into future measures to protect press freedom in Canada.

The government proposes to amend the wording of proposed subparagraph 39.1(8)(b)(i) to replace the word “essential” with “important”. We believe this change would undermine the principle of the bill and be inconsistent with existing protections. Existing jurisprudence says that it must be a last resort to force the media to pass over information. Setting the threshold for information at “important” falls short of this standard.

The government proposes that the requirement to demonstrate that “due consideration was given to all means of disclosure that would preserve the identity of the journalistic source” become a separate criterion, applicable at each stage of the analysis, rather than a specific branch of the test provided for in proposed subsection 39.1(8). We support this change.

The government proposes that the additional conditions for the attainment of a warrant would not apply in cases where the journalists themselves are suspected of criminal activity. This is meant to prevent the application of Bill S-231 in a context outside of journalistic activities. The Media Coalition has offered remarks regarding this matter and has offered a suggested amendment, both of which we strongly endorse.

The government proposes that the precedence clauses of proposed subsections 39.1(2) and 488.01(2) be withdrawn from the bill, and has expressed its belief that these clauses would unduly affect privacy and national security laws. As the wording of proposed subparagraph 39.1(8)(b)(i) already provides for the disclosure of information or a document that is essential for public safety, we believe the government proposal would unnecessarily undermine the effectiveness of the act.

We thank those who spearheaded this effort, including Senator Carignan and Mr. Deltell. CJFE would also like to commend the Liberal government for its support of Bill S-231. It is a promising, concrete follow-up to Prime Minister Justin Trudeau's previous strong statements of support for press freedom in Canada, and will help establish Canada's position as a world leader on this issue.

Thank you.

June 19th, 2017 / 4:45 p.m.
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Michel Cormier General Manager, News and Current Affairs, French Services, Canadian Broadcasting Corporation, Canadian Media Coalition

Hello. Thank you for having us.

I’m Michel Cormier, the executive director of news and current affairs for Radio-Canada's French services. I'm the boss of Marie-Maude Denis and other Radio-Canada journalists who were electronically monitored by the Sûreté du Québec.

Radio-Canada and the Canadian Media Coalition appreciate the government’s support for the bill being shepherded by Senator Carignan.

Confidential sources, whom this bill is designed to protect, are essential to investigative journalism. No one disputes this fact, which was recognized a number of years ago by the Supreme Court of Canada. However, the past few months have shown us that the existing police and judicial system falls short of providing adequate protection for journalistic sources.

Over the last few weeks, the Chamberland Commission hearings have given us an opportunity to hear what motivated police officers to obtain the telephone records of several journalists, including three of Radio-Canada’s most distinguished investigative reporters. Their grounds were inadequate and their methods were doomed to failure.

In our opinion, the testimony at the commission of certain police officers involved in monitoring the journalists demonstrated to what extent our reporters and their sources were victims of abuse of authority. It has been acknowledged that the order issued by a presiding justice of the peace granting access to five years’ worth of records of journalists’ incoming and outgoing telephone calls, and, in two cases, their physical locations at the time of the calls, proved nothing regarding the crime under investigation, a potential leak of wiretapping information. However, it substantially jeopardized the identity of the journalists’ sources.

In our view, this was clear from the very start. As a number of police officers have testified at the commission, far too many people had access to the wiretaps, and simple telephone contact between police officers and journalists proves nothing. So, why did they request access to five years of call logs? These questions could have been asked by the presiding justice of the peace. Indeed, they should have been asked, but clearly weren’t, since the orders were issued without further proceedings.

I would ask you to reflect for a few seconds on what that means. The police officers gained access to call logs that could reveal the identity of confidential sources, although anyone could see, right from the outset, that the logs would serve no purpose. Breaching the confidentiality of journalists’ sources through these court orders wasn’t only completely pointless, but also a serious abuse of authority.

The police officers in question were or should have been aware of this fact before requesting the first of the court orders. However, the system completely failed to stop them.

According to Reporters Without Borders, as the member said, Canada did not rank among the top 20 countries for defending freedom of the press this year. Several other democracies and even some American states have laws protecting journalistic sources.

This bill must be adopted to change things, and to ensure that confidential sources will be protected and that never again will a police force in Canada be authorized to spy on journalists without regard for their sources and the crucial role they play in a democracy.

However, the coalition would like to stress that one of the proposed amendments creates a loophole in the protection of confidential sources. The new subsection 488.01(4.1) would exempt any order from the act when it’s alleged that a journalist has committed an infraction. If this amendment is adopted, it would suffice for investigators to claim that they suspect a journalist of having worked with a whistleblower for all protections afforded under Bill S-231 to be completely voided and for sources' identities to be revealed.

This loophole would encourage unjustified allegations against journalists, whereas no investigations involving journalists in the past have ever led to charges being laid against them.

Our proposal provides what we feel is a fair solution to this problem. It ensures that, in the case of journalistic work, the judge applies the test outlined in Bill S-231 before approving the warrant, while exempting investigations into common law crimes from this requirement.

We're very satisfied with this bill. Not only will it put an end to abuses of authority and restore journalistic sources’ trust in the system, it will allow Canada to join those jurisdictions that legally protect all these brave people who come forward to expose unacceptable situations and whose actions contribute to a freer and more democratic society. That said, we ask that you pay special attention to the suggestions detailed in our factum.

Thank you.

June 19th, 2017 / 4:40 p.m.
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Jennifer McGuire General Manager and Editor in Chief, CBC News, Canadian Broadcasting Corporation, Canadian Media Coalition

Mr. Chair and members of the committee, good afternoon.

My name is Jennifer McGuire. I'm the general manager and editor-in-chief for CBC News. I wish to thank all of you for this opportunity to address this important topic once again.

I'd like to stress right up front how important we feel Bill S-231 is. I can say on behalf of our coalition of media organizations that speedy passage and implementation of Bill S-231 would be a great service to the country.

Why do I say this? Because investigative journalism is a vital component of a healthy democracy. It shines light on issues that matter, whether those are sexual assaults on Canadian campuses, questionable offshore tax havens, or unethical real estate practices—the sorts of stories that pave the way for legislators to make better public policy.

This journalism frequently relies on people who are brave enough to tell their stories and to share stories that would otherwise be untold: sources, especially confidential sources. It also relies on a journalist's ability to protect these sources. Today in Canada that ability is undermined because it is too easy for police to obtain a warrant allowing them to conduct surveillance missions on reporters.

Late last year, we learned that some of Radio-Canada's top investigative journalists were being spied upon by the Sûreté du Québec. Five years of their phone records were asked for; some of the journalists had their locations tracked, and all of them had their freedom infringed upon, all because police wanted to know who their sources were.

It's bad enough that these journalists were spied upon by the authorities, but consider the impact this news had on their ability to do their jobs. What confidential source would share information knowing they could not rely on any protection a journalist might offer? What whistle-blower might decide that it's better to stay quiet rather than risk being swept up in a police investigation? By scaring confidential sources into silence, we will never know how many cases of wrongdoing remained secret and how many cover-ups were made possible.

Right now, the bar for obtaining warrants to conduct this type of surveillance is far too low. As just one example, dramatic testimony in recent weeks at the Chamberland commission in Quebec has shown us that even baseless sexual innuendo can be enough.

Last Thursday, Radio-Canada's Marie-Maude Denis testified that one of the justifications made by police for spying on her was that she had an intimate relationship with another police officer who was one of the targets of the investigation. I want to point out that this was completely false and based on no credible information. That police made this allegation before a justice of the peace was shameful. That it was persuasive is frankly depressing.

The clear implication was that successful women in journalism use sex as a way to get information. If you need proof that the bar for obtaining a warrant needs to be higher, look no further.

Let me be clear: we realize that there must be exceptions. When a journalist is legitimately suspected of a crime, police may well have a good reason to track their activities. If it can be shown that there is no link between the investigation and the journalistic activities, then the suspect should not be able to invoke their profession as a shield, but as soon as the nature of the investigation has a link with the practice of journalism, then the protections of Bill S-231 should apply in full force, and this decision rests properly with a superior court judge.

Thank you for your time. I will pass this on to my colleague, Michel Cormier.

June 19th, 2017 / 4:25 p.m.
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Senator, Quebec (Mille Isles), C

Claude Carignan

Yes, it is very significant, but at the end of the day, what it will mean is instructions for police on how to apply the provincial legislation. Bill S-231 amends the Criminal Code, the measures on how to obtain a search warrant and produce evidence in Canada.

June 19th, 2017 / 4:20 p.m.
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Senator, Quebec (De Salaberry), Independent Senators Group

André Pratte

It's a difficult situation because there's not an obvious business model for journalism, but at the same time I think there is a positive side because if you look at what's going on in the U.S. today, it is obvious that people are yearning for quality news. There is a lot of fake news, but people want quality news. It's a matter of finding the right business model. You can see that in the United States. Quality newspapers are doing quite well right now. The New York Times and The Washington Post are finding ways of getting back in the black. That's good news, but those are exceptions right now. It's a matter of finding how to get advertising back to traditional newspapers or news organizations, and that's very difficult. I worked for 30 years for La Presse , which is now one of the more innovative news platforms in the world, and they're in difficulty.

If I might add a word about police forces, in the Senate committee where we studied Bill S-231, we tested that definition of “journalist”, and they agreed that this definition alleviated their concern. They were satisfied with it. I think it's important to know.

June 19th, 2017 / 3:45 p.m.
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Conservative

Gérard Deltell Conservative Louis-Saint-Laurent, QC

Thank you, Mr. Chair.

What a pleasure to be here with you again, a year after our time together on the Special Joint Committee on Physician-Assisted Dying.

Colleagues, good afternoon and welcome.

I am very honoured and proud to be appearing before you today as the member sponsoring the bill in the House of Commons, as well as a former journalist.

Mr. Chair, let me pay my respects to our colleagues from the Senate: Senator Claude Carignan, who worked so hard, so fast, and so well, with the support of colleagues like Hon. André Pratte, and all the other people in the Senate who worked to table this important piece of legislation.

As far as I am concerned, this bill is very correct, because it respects every aspect of our society.

To begin with, Bill S-231 correctly defines what a journalist is, in my view. The underlying principle is the protection of the journalistic source, not the journalist. That may seem like an obvious distinction because journalists make mistakes, like everyone else, but sources wishing to come forward with information must be protected. That is what this bill seeks to achieve.

One of the bill's many merits is the fact that, going forward, only superior court judges would be allowed to determine whether investigations pursuant to search warrants could proceed. Experience has unfortunately shown that they were sometimes issued too hastily by peace officers. In the case of Montreal's police force, the SPVM, such requests were granted 98% of the time.

The bill also reverses the burden of proof and ensures that the execution of a warrant relating to a journalist is truly the last resort.

A few of my colleagues may recall that in Quebec, in the last month, it was a real turmoil situation for journalists.

This past October, we found out that journalist Patrick Lagacé had been the target of 24 surveillance warrants by police in recent years.

To give you an idea of the type of individual we are talking about, I will tell you that Mr. Lagacé is a seasoned journalist with over 20 years of experience and recognized by all Quebecers as an established journalist. If he were in the military, he would be active in all three forces. As a journalist, he works in television, print, and radio, and has a daily column. He is a seasoned journalist who was put under police surveillance, further to a warrant, 24 times, and that obviously raised considerable concern in Quebec.

More revelations followed. It came out that some 15 journalists in Quebec had also been put under police surveillance; they were all very experienced and worked mainly in investigative journalism. Patrick Lagacé, Vincent Larouche, Marie-Maude Denis, Alain Gravel, Isabelle Richer, Éric Thibault, Denis Lessard, André Cédilot, Nicolas Saillant, Félix Séguin, Monic Néron, Joël-Denis Bellavance, Gilles Toupin, Daniel Renaud, and Fabrice de Pierrebourg had all been the subject of a police investigation by the Sûreté du Québec, SPVM, or RCMP.

We see Bill S-231 as a fair and balanced response to an intolerable situation.

In my final notes, Mr. Chair, let me just remind you that 45 years and one day ago, a newspaper named The Washington Post published a small article about a burglary that happened in the Democratic Party headquarters in Washington. The Democratic Party headquarters was situated in a building named Watergate. Two years later, all the world recognized what happened there, and it also recognized the importance of whistle-blowers. This is what this bill wants to protect.

June 19th, 2017 / 3:45 p.m.
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André Pratte Senator, Quebec (De Salaberry), Independent Senators Group

Thank you, Chair.

“Democracy dies in darkness”: this has been The Washington Post's slogan for a few months now. Like all slogans, it does not really need an explanation. It says it all. Without the spotlight shone by the media on public and private institutions, on those who govern us, citizens lack information and are therefore not able to properly play their role. Democracy collapses.

Unfortunately, even major media outlets, those who have the most resources in terms of investigative reporting, those who are equipped with the most powerful spotlights, can't see everything. You first have to know where to look. Then there are always the shadows, the places where incompetent or dishonest people hide to do their dirty work.

To spot these shadows and bring them to light, journalists need help. Let's call them “lamplighters”, the people inside who secretly light a candle that pierces the darkness and alerts the media, telling them where to turn their spotlights. These lamplighters are the sources. Because they betray the incompetents and the cheats, sources often take great risks. If they're discovered, they may lose their jobs. The punishment may be even heavier if a criminal organization is involved.

Journalists' sources must therefore be protected. That means journalists must be able to keep their sources' identities confidential, except in very special circumstances, even in a court of law and even in a police investigation. This is the only way journalists can reassure their sources and get them to come forward.

Canada does not have a shield law specifically protecting journalistic sources. The recent events in Quebec, involving journalists who were the targets of widespread police surveillance, are troubling not just for journalists, but also and above all, for their sources and society as a whole. If sources are not assured of confidentiality when coming forward and revealing their story to someone in the media, they will remain silent, and if that happens, darkness falls.

What happened shows that existing legislation is inadequate to protect journalistic sources. It is too easy to obtain warrants for surveillance. The case law would benefit from clarity around the protection of the identity of sources as regards the courts, and that is what Bill S-231 seeks to do.

I know that here, on the Hill, we often criticize the media and journalists, but we must take great care not to forget the essential role they play in our democracy. Of course, like those in every other occupation, some journalists are better than others. Naturally, they are highly critical of the work parliamentarians do, but thank goodness for that, because without their scrutiny, who would keep politicians in check? It goes without saying that they are always on the lookout for things that go wrong, and that can be very frustrating. If they weren't, however, who would let citizens know that all wasn't right with the government?

Warts and all, the media play a fundamental role in our democracy. Without confidential sources, they could not play that role. Let me insist on this: Bill S-231 aims to protect not journalists but their sources. They are the ones who need protection, because they are the ones who risk their friendships, and sometimes their families and their jobs, because they feel duty bound to inform Canadians of what they know.

Passing Bill S-231 would be a historic step forward for freedom of the press in Canada, in fact the most significant advance in decades. At a time when south of us the press has been attacked in a way it has rarely been attacked before, Canada would send a powerful message on the importance it attaches to this fundamental right guaranteed by our Charter of Rights and Freedoms.

More concretely, journalists' sources, those courageous and lonely lamplighters, would finally be protected for the greater good of Canadian democracy. The flame of a simple candle is fragile, but as long as it is protected from the storm and extinguishers, it is enough to make light, and under the light, democracy shines.

Thank you.

June 19th, 2017 / 3:40 p.m.
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Claude Carignan Senator, Quebec (Mille Isles), C

Yes, I can start. Thank you.

Mr. Chair, members of the Standing Committee on Public Safety and National Security, I would like to thank you for agreeing to study Bill S-231 so quickly.

The bill addresses a fundamental issue, freedom of the press, a pillar of our democracy safeguarded by section 2 of the Canadian Charter of Rights and Freedoms. As my colleagues will tell you, I care deeply about the Canadian values that the charter embodies.

As a lawyer, a parliamentarian, and an engaged citizen, I was astounded by the revelations this past fall that journalists were being spied on, so I decided to do something about it by introducing Bill S-231. It seeks to plug a legislative hole, and because of that hole, our current rules are completely out of step with what is expected of us, as a developed country ruled by the highest democratic standards.

The tangible benefits of this bill are many.

First, Bill S-231 recognizes the fundamental role of journalists in our democracy; protects the privilege of journalistic sources' secrecy, which legislation has yet to explicitly acknowledge; and seeks to protect whistle-blowers. Once the bill is passed, only a judge of a superior court—in Quebec, a Quebec court judge within the meaning of section 552—may issue a search warrant relating to journalists.

Immediately upon execution of a duly authorized warrant, the information collected will be sealed by the court and none of the parties is allowed to access the content without the judge's permission.

An officer wishing to consult sealed information relating to a journalist must send the journalist and media outlet a notice informing them that they wish to do so. The journalist and media outlet will have 10 days to oppose the officer's request for disclosure if they believe the information could likely identify an anonymous journalistic source. If the journalist objects to the disclosure, the onus is on the officer making the request to show that the information is crucial to further the investigation. The burden of proof is thus reversed.

An objection may be raised before any court or federally regulated body. The organization or tribunal may raise an objection on its own initiative. Bill S-231 protects the rights of all parties. It enables journalists to protect the identity of their sources and police authorities to complete their investigations. Finally, this act will put an end to potential fishing expeditions or source hunts.

In closing, I will say this: the media play an essential role in disseminating information and sparking public debate on important issues. Without journalistic sources and whistle-blowers, journalists could no longer perform their essential role in our democracy. Canadians, deprived of their fundamental right to be informed, would be the big losers. Those who abuse their power or misuse public funds would continue to get away with it, to the detriment of all Canadians.

It is up to us, as parliamentarians, to establish the necessary safeguards to protect journalistic sources and thus preserve freedom of the press and the public's right to be informed.

Thank you.

June 19th, 2017 / 3:40 p.m.
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Liberal

The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)) Liberal Rob Oliphant

I will call to order this 71st meeting of the public safety and national security committee. Welcome to everyone.

Welcome, Mr. Nicholson and Ms. Gallant. It's good to have you with us.

Pursuant to the order of reference of Friday, June 9, which was 10 days ago, our topic for today is Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).

We will have two panels of witnesses. The first panel will be the sponsor of the bill in the House, the originator of the bill in the Senate, and a collaborator on that bill. Our second panel will be members from the Canadian Media Coalition. I just heard from the clerk that Mr. Tom Henheffer, the executive director of Canadian Journalists for Free Expression, is delayed in transit, unfortunately. There have been airplane cancellations, so it is unlikely that he'll be with us today.

I also want to note for the committee that we attempted to get witnesses from the RCMP, the OPP, and the Canadian Association of Chiefs of Police. However, due to short notice as the principal reason, they're not able to be with us today. The Association of Chiefs of Police did submit a written brief. It is a fuller brief than what they were able to present at the Senate hearings on this bill, so I would commend it to your attention as well.

We'll begin the first panel with Senator Carignan, Senator Pratte, and Monsieur Deltell. I understand that we can expect the bells to ring at some point for a House of Commons vote. At that point I will seek unanimous consent to consider going a little longer. We'll just see where we are when the bells ring.

Who will begin?

Monsieur Carignan.

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

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

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 / 1:45 p.m.
See context

NDP

Gord Johns NDP Courtenay—Alberni, BC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Journalistic Sources Protection ActPrivate Members’ Business

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

Liberal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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