Information & Ethics Committee on June 5th, 2013

[Chris Warkentin, Conservative, Peace River, AB]

[Inaudible--Editor]...I was talking to the chair.

[Charlie Angus, NDP, Timmins—James Bay, ON]

If they want us to stay till midnight on an issue like this, then we'll stay. We can do this in a reasonable manner, or if they want to do what they do in every committee, and in the House, and attempt to bully the opposition into being quiet about a major issue—

[Chris Warkentin, Conservative, Peace River, AB]

Point of order....

[Charlie Angus, NDP, Timmins—James Bay, ON]

—which is the issue of journalistic sources, then we certainly can talk.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Angus, that is not a point of order. I will therefore have to interrupt you.

Mr. Warkentin, do you have a point of order? No, then in that case, I am going to allow Mr. Boulerice to continue to speak to the amendment.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chair.

Coming back to the importance of protecting journalistic sources, I repeat that we believe the amendment presented by the Conservative Party still fails to address all the concerns that have been submitted to us.

There were other, much more effective ways of doing that, but the Conservatives preferred to head in this direction, thus raising quite serious concerns within the profession across the country. If there had been a genuine concern to enable the Information Commissioner to do her job, we could perhaps have drawn on foreign legislation that grants full authority to obtain documents and determined whether the access to information request is legitimate. Instead of that, they have restricted the definition of "activities" to that of "independence", which has somewhat inflamed the situation.

On this point, the Canadian Media Guild, which is concerned with matters pertaining to the right to information, told us this during the hearings:

We are concerned that the impetus behind Bill C-461 is to strengthen the hand of the CBC's media competitors and to weaken the Corporation's journalistic integrity and ability to protect its confidential sources.

We are really addressing the issue of protection for journalistic sources. Most of the bill's opponents pointed out this particular feature. It did not concern disclosure of the compensation of the most highly paid employees, a point on which most people could agree.

The Guild also said this:

If the supporters of this bill really want the Access to Information system to work better—and we would agree that this is desperately needed—then they should bring forward a comprehensive package for reforming the Act, with careful consideration for how it intersects with the Privacy and Broadcasting acts. For example, the House of Commons and the Senate should be put under the act as they are in most modern freedom to information laws and in other parliamentary democracies…. The Information Commissioner should receive order-making powers….

That is not provided for in the bill or in this amendment. Bill C-461 addresses none of these changes.

The Guild also noted the following:

If one of the objectives of C-461 is to achieve greater transparency about the salaries paid to employees of Crown Corporations, of which the CBC is only one, as well as those of government departments and agencies, then it should address that directly and comprehensively, naming all the departments, corporations and agencies involved and thoroughly examining the relevant privacy issues.

We can also address the issue of the bureaucracy. I recall a comment by Mr. Carmichael that I thought was interesting. He talked about the danger involved in creating a new registry. That is an explosive word, and I do not think the Conservative government intends to create more registries, red tape and bureaucracy.

The Guild also told us this:

Bill C-461 cannot be salvaged—

[The Chair, NDP, Pierre-Luc Dusseault]

One moment, please, Mr. Boulerice. Can you read more slowly, please? The interpreters do not have the document in hand.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

I apologize. I will try to do better.

As I was saying:

Bill C-461 cannot be salvaged, even by extensive amendments. The government and Parliament have no place in the newsrooms of the country. Bill C-461 turns an outright exclusion for CBC journalism into an exemption based on an injury test that could be fought by each applicant in court. This would place conditions on CBC's journalism that exist for no other news organization in Canada. This is an affront to the principle of freedom of the media. Some have argued that such demands of the CBC would be unconstitutional. Bill C-461 moves further away from what is really needed: additional measures [to provide protection] from the government and powerful interests.

There are journalistic sources, but also the issue of programming. Mr. Chair, I am sure that we will have occasion to talk about this later since the CBC is in a competitive market, particularly as regards advertising purchases.

In the years immediately after the CBC was put under the Access to Information Act in 2007, the corporation admittedly experienced serious problems in responding to access requests in a timely fashion. That problem has been rectified, as exemplified by the "A" grade recently awarded to the CBC in the most recent report card by the Information Commissioner of Canada.

The author of the bill reminded us during his testimony that Canada had fallen to 56^th place out of 90 countries with regard to transparency. My impression is that this bill will solve nothing, that it will jeopardize journalistic sources and that it will also be an attempt to solve a problem that does not exist. There are enough federal government departments and agencies that have transparency and access to information problems. This direct attack on the CBC could have been avoided.

The Guild is not the only organization concerned about journalistic work. Ms. Maryse Bertrand, who is Vice-President, Real Estate, Legal Services and General Counsel at the Canadian Broadcasting Corporation, wrote to you, Mr. Chair. I believe she testified before this committee.

While this legislation proposes to increase the public's access to information held by removing the specific exclusions provided in law to the Canadian Broadcasting Corporation, Bill C-461 may undermine the Corporation's ability to do its job as mandated by Parliament. As the Information Commissioner pointed out in her submission to the Committee, the Federal Court of Appeal ruling is clear: The Commissioner can review documents held by CBC/Radio-Canada in order to determine whether the exclusion under section 68.1 applies, except when it comes to journalistic sources. We are both satisfied with that decision and have been working well together to process our outstanding cases. C-461 would remove the 68.1 exclusion completely. As we noted in our appearance, public broadcasters in Ireland, Great Britain, and Australia all have exclusions from their Freedom of Information laws for journalism, programming and creative activities. The exclusion exists in order to ensure that these public broadcasters are subject to freedom of information legislation without compromising the very job they are mandated to do. It is unclear why that situation should be different for Canada's public broadcaster.

Indeed, Mr. Chair, they are not clear at all. That is our criticism of this bill, which risks jeopardizing one of the most effective newsrooms in Quebec and Canada.

Vice-President Bertrand continued as follows:

Our specific concerns are the following: By changing "journalistic, programming and creative activities", to "journalistic, programming and creative independence", C-461 limits the protection of CBC/Radio-Canada's activities to areas where the Corporation can prove damage to its independence.

Under the system of exemptions, the burden of proof is now on the CBC. Mr. Bob Carty, of the Canadian Media Guild, told the committee about the proof of prejudice to its independence from the government. He told us this:

...a pharmaceutical company eager to know what we are finding out about the deadly side effects of one of its drugs could argue in court that the release of my journalistic materials, even sources, in no way compromises the CBC's independence from government and Parliament. The release would damage my credibility, the CBC's journalistic integrity, and quite possibly subject us to a lawsuit to prevent the material from being broadcast.

Going back to Ms. Bertrand's letter: By failing to specifically protect journalistic sources, C-461 may undermine the ability of CBC journalists to secure the trust of sources, obtain confidential information, and report to Canadians. To be clear, this is not a question of whether the Commissioner can be trusted to see confidential information. The issue is whether confidential sources will trust in CBC/Radio-Canada journalists knowing that their identity will be shared with the Commissioner's office. We must disagree with the Commissioner's belief that journalistic sources are adequately protected elsewhere. They are not.

That is Ms. Bertrand's point of view.

Furthermore, like judges who do not need to see the names of sources in order to decide if they should be protected, we believe the Commissioner does not need access to such names in order to decide that information is at the heart of our journalism. This is why the decision from the Federal Court of Appeal specifically excludes the Information Commissioner from viewing journalistic sources in the current law.

We are not talking about redacting a document to remove only names, but rather about all the information, context, dates and places that might help identify a whistleblower or person working in close co-operation with the commissioner.

I want to close with Ms. Bertrand's conclusion. I will also let my colleagues give us their comments on the amendment that has been presented to us.

Ms. Bertrand writes as follows:

If Parliament wishes to update Canada's Access to Information Act, we believe that it should do so, as part of an overall review. As the Commissioner told the Committee, changes to Access to Information "demand thoughtful, unified action and are not easily amenable to a piecemeal solution. Piecemeal efforts result in unintended consequences which it is now clear, would be the case with this piece of legislation, however well-intentioned. For these reasons, we believe that the Parliament should not proceed with C-461.

In our humble opinion, the amendment designed to protect journalistic sources is inadequate. In fact, the entire bill should be reviewed. The protections provided for the CBC's journalistic, creative and programming work should be strengthened. However, that is not what we see before us.

In light of these preliminary remarks, Mr. Chair, I would like to say that we will vote against the amendment.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

The next person on the list is Ms. Borg.

I remind you that we are talking about the amendment.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you.

I would like to congratulate my colleague. His comments were very comprehensive, based on the information and quite brief. He could have spoken at length on this very interesting topic.

First, I consider it quite unusual that transparency should be demanded of the CBC. Transparency is very important. Everyone in a democratic society looks for it, but the fact is that we have a government that is not very transparent at all. The Information Commissioner has said on numerous occasions that there is a genuine problem of access to information. Scientists may not speak publicly and even librarians are not allowed to give conferences. It is therefore quite unusual to set transparency as the objective of this bill—which, incidentally, we do not think will achieve that goal—whereas the government itself has no best practices with regard to transparency. The Parliamentary Budget Officer, for example, has to petition the Federal Court to obtain the documents he needs to do his job.

The amendment shows the haphazard manner in which the bill has been put together. No thought was given, when it was drafted, to the fact that it was important to protect journalistic sources. I am pleased to see that this amendment has been introduced. I think it will improve matters somewhat. However, it does not attack the root of the problem. Journalistic sources are very important. The CBC is really very important to my fellow citizens. However, if it is unable to guarantee the confidentiality of its journalistic sources, it will be difficult for it compete with the major news and media companies. It is very important to protect those sources.

Although we support this amendment, it does not address the root of the problem. In fact, the bill creates more problems than it solves. The Information Commissioner stated in her testimony that it was important to amend and update the Access to Information Act but that that should not be done haphazardly, that is to say by correcting one thing and then another. That means focusing too much on one specific issue, which is then politicized.

Information regarding confidential sources has come to us from various sources. Letters, in particular, have been written. I would note that I am receiving an enormous number of emails from people who are opposed to this bill. I think it is our duty to discuss them and to think about them very seriously. The Canadian Media Guild, more particularly, spoke specifically about protection for confidential sources. In its view, this bill would unfortunately jeopardize that protection. We want to ensure that the CBC remains competitive and continues to be the organization that is so much appreciated by my fellow citizens and colleagues.

This bill generally addresses CBC/Radio-Canada, not the problem of transparency. The intent may have been to attack that problem, but it unfortunately does not go far enough in that direction. In short, although the amendment improves matters somewhat, we will be proud to vote against this bill.

That sums up my comments. I am sure my colleague Mr. Angus will add to them.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

Mr. Warkentin, you have the floor.

[Chris Warkentin, Conservative, Peace River, AB]

I'm fine, thank you.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Angus, it is your turn.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair.

To follow my two colleagues, I think what's really important to talk about here is the importance of the work of the journalists.

I heard Mr. Butt and Mr. Menegakis say earlier that the CBC is no friend of ours, but I think that whether you like CBC or not is—

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Menegakis, you have a point of order?

[Costas Menegakis, Conservative, Richmond Hill, ON]

On a point of order, I never used those words in my life, sir.

[An hon. member]

I think you were hearing it.

[Costas Menegakis, Conservative, Richmond Hill, ON]

No.

[The Chair, NDP, Pierre-Luc Dusseault]

That is not a point of order, but thank you nevertheless.

[Costas Menegakis, Conservative, Richmond Hill, ON]

I would like the member to take that back. I've never uttered those words in my life.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I think it was your colleagues.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Angus, you have the floor.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Anyway, Mr. Chair, this isn't whether or not I drive off the road on Sundays when Stuart McLean comes on, or I change the channel on the Lang & O'Leary Exchange, or I scratch my head at some stuff I hear. Canadians have a love-hate relationship with the CBC. We love some stuff. Other stuff drives us crazy. It's our public broadcaster and that's our relationship.

The issue here is what the journalists do. This is our discussion. I appreciate my colleague, Mr. Butt, trying to clarify because certainly Mr. Rathgeber has tried to come forward with some issues in terms of accountability. I'm intrigued by some of them, but the issue of independence was clearly an untested word and would give us problems in the courts.

I'm worried about the narrow definition of “confidential journalistic source” because it does not give the context of journalistic activities. I worked for 12 years as an independent journalist and I ran a magazine. We were involved in a number of investigative pieces, and you realize that it's not just the source. It's where the source comes from. It's the context of the source. When I heard the other day “the name will get blotted out”, that's not necessarily the most important thing. If someone wants to find out the source, where something came from, they want to find out the context of it because you can find out a great deal of things. If you want to find out what the investigation is, if you want to find out what that journalist was doing, it's the activities of the journalist that are crucial here.

This is really important because CBC, as the public broadcaster, is the only media institution in this country that is subject to issues of access to information. The other media companies in this country do excellent work. In my region, CTV is our news service on television. Sun Media runs our newspapers. They're out in the field. They do work, but they're not subject to access to information. It's a different set of standards. So the only thing we want to make sure about is that journalists are all working on the same playing field.

That is the important issue here. It's not attack the CBC or pro-CBC versus private sector broadcasters. The difference is that we cannot allow the journalists to be caught up as though they are somehow government bureaucrats, because if they're treated under the same rules as government bureaucrats or government institutions, then the Canadian public will certainly lose out.

It's really important to point out as well that if you've worked in the field as a journalist you know that a source doesn't go and knock on the door of the corporation. They go to the journalist. It's the relationship between the journalist and the source. They didn't go to CTV with the Mike Duffy scandal. They went to Bob Fife, and Bob Fife broke the story because of who Bob Fife is.

There may be some people who would love to know how Bob Fife found out what he found out. I certainly would love to find out how Bob Fife knew what he found out. I'm feeling my sources just aren't good enough here. If I could do access to information I might not find the source, but I could find out generally how Bob Fife found that out. That would be very important for someone, but Bob Fife, fortunately, is not subject to access to information.

Nobody calls CBC's 1-800 number and says, I'm a whistle-blower. They go to Terry Milewski because Terry Milewski has the reputation, or they go to another individual journalist. For example, if you wanted to break a really good story you would go to David Akin. You wouldn't call the Sun, and I would certainly know that Althia Raj would do an excellent job. In fact, I might have called Althia Raj a few times myself with whistle-blowers, and I certainly wouldn't want anyone to be able to access information and find out that we won't say the name but the phone call came from Timmins—James Bay. It certainly could have been one of my neighbours. Althia can deny it, but I think she has received those calls in the past from me, with me saying a little birdie told me you might want to listen.

This is what we're talking about. How do we define the protection of what the journalists do? It's the journalistic activities. It's not the name. It's the activities that are important.

I'm looking at this motion and I don't believe it covers what needs to be covered and what we've heard from independent journalists. We've heard from the CBC, and I understand CBC's concern because they're in a competitive fight. They're a public broadcaster, but they're also a semi-private broadcaster and the media game is a tough business. They have their competitors and certainly the ongoing war with CBC and Quebecor is one for the books. Somebody is going to write that book. I'm not going to write it, but somebody will write that book.

That's a side issue to what we're debating now, which is ensuring that when a journalist meets with someone that person can know they are fully protected.

There's a long history—not just in Canada, but certainly in the United States as well—of journalists being willing to go to jail. That's the journalist's code. You have to be willing to do everything to protect your source. If you can't protect it through the corporation because you're subject to access to information, and if you can't say you can guarantee that it won't be out there in an access to information request—because things do get out through access to information—your word isn't really much good for anything.

Certainly we're big believers in access to information. I'm always upset when I see blacked out redacted documents from the government. In fact, the more I make requests, the more redacted they seem to get all the time. Occasionally you do find significant things through access to information. Sometimes mistakes are made under access to information.

What we believe is important here is to ensure that it's not just the source, it's not just the name, it's not just the person who is going to be blacked out, because we know that would be blacked out anyway. It is the activity that the journalist is engaged in. Sometimes when a journalist is on a story it's a dead end. Certainly there might be mileage. Certainly a journalist went to a place. Why were they going to that place? What were they spending that money on? Why did they take a hotel? Why were they flying there? They are going there to establish the relationship with the source to break the story. This is the important thing. It's not just the name. It's the overall context within which the journalist works.

This is why we don't believe this particular amendment is clear enough. We believe that we need to have the language around the activities of the journalist. That would reassure us that at the end of the day the public broadcaster, just like any journalistic institution in this country, would have the independence to do its work without intimidation.

I use the word “intimidation”, Mr. Chair, to provide context so my colleagues understand why we have been so strong on this in the opening round. It's not that we're trying to be obstructive here.

When someone is involved in a long-term investigation, they could be going after organized crime. They could be going after a corporate interest. There could be millions of dollars at stake. If someone wants to find out where the leak is coming from, they're going to do what they have to do, and they will certainly go through freedom of information if they can. They're going to find out everything they can and they will fight it. They will fight it with the Information Commissioner. They will fight it with the courts, because it's important to them.

We heard the example about a set of a pharmaceutical trials that might be going wrong, and someone on the inside is telling. Certainly the pharmaceutical industry is going to want to know why the public was informed.

This brings us back to the role of the whistle-blower. The whistle-blower is not the rat. The whistle-blower is often the person who's very concerned about the public interest and thinks that what they are being asked to do is wrong. But there is nobody they can go to above them to say it is wrong. The whistle-blower puts their career on the line because they believe the public has a right to know. The person they go to is often the journalist, because at the end of the day it's the journalist's role to tell those stories and to make sure the facts get out.

The journalist knows—and their institution knows—that if they're wrong, big lawsuits await. This isn't an easy business. This is a tough business, but it's based on your word to your source. This is what we want to maintain, that the individual journalist working in the field can go back to their source and say, “I will ensure that if you give me this information, that if I have the information, you will be protected.” That is absolutely essential.

I don't think Mr. Rathgeber in any way intended to undermine the independence of journalists. I certainly respect what he has tried to do, but laws have unintended consequences and the language around the law is very important.

I appreciate the amendment to try to clarify the language, but just saying “journalistic source” is not clear enough. Thank you.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Angus.

The next person on my list is Mr. Andrews.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Mr. Chair.

First, I have just a thought on some of Mr. Angus' testimony. It got me thinking about how, recently, this government and the Department of National Defence will go through any means necessary to find out how stories get leaked and how they get out to the media. It just reminded me of that occurrence this week and of how important it is to protect journalistic sources. I think we need to do that, and today there are a couple of amendments here to do that.

For my question, I'd like some clarity from the legislative clerk or the library staff we have here. In looking at the first clause, or proposed section 18.2, as it's referred to in the bill, as Mr. Rathgeber has put it in the bill, it says, “could reasonably be expected to prejudice the Corporation's journalistic, creative or programming independence”. I'd like to go back to the “prejudice” part, because I think we heard testimony in a couple of examples from the commissioner that this type of prejudice or injury-based test is something that is similar to the national security and CSIS issues that come before her.

I was wondering if this wording and the prejudice test are similar to the national security and the CSIS departments', which has been brought to our attention through the deliberations. I was wondering if the analysts or the legislative clerk could tell us if this prejudice test is in any other statute regarding national security. Would this be something that's similar if the clause here goes unamended?