Justice Committee on March 5th, 2008

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order this Wednesday, March 5, 2008. The committee will be following the agenda as noted pursuant to the order of reference of Wednesday, November 18, 2007. Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants) is before this committee.

The witnesses and the presenter of this bill, Mr. Serge Ménard, will be presenting the private member's bill to the committee.

Testifying will be Joshua Hawkes, as an individual. From the Department of Justice we have Karen Markham, counsel, criminal law policy section; and Josée Desjardins, general counsel, director, national security group. From the Department of National Defence we have Lieutenant Colonel Jill Wry, director of law, military justice, policy and research, Office of the Judge Advocate General.

Monsieur Ménard, you have the floor.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Chairman.

I did not table this bill in order to create a privilege, but quite the contrary, in order to protect a certain kind of journalistic activity that has proven in every country in which it has been applied that it allowed for certain very serious situations that required correcting to be corrected. And in passing, these countries are our allies, they are also recognized as democratic countries.

This bill deals with two topics of great importance to any democratic society in which freedom of the press and freedom of information are fundamental values ensuring that an informed debate can take place on issues facing modern societies. In the vast majority of democratic societies, legislation has been passed concerning these two topics. In other societies, such as ours, the courts have had to rule on these matters as specific cases were brought before them. This has resulted in a number of sometimes contradictory rules. As a whole, all these rules may therefore appear inconsistent.

However, the courts have consistently recognized the importance and relevance of such a debate in the context of a free and democratic society. The time has come for the elected representatives of the people to do their part to help solve in a civilized fashion conflicts which, inevitably, might arise from time to time between legitimate objectives of governments and the means specific to journalistic work.

In dictatorships or totalitarian regimes, these issues never arise, but they have arisen in all democracies. To understand this bill better, members need to see that it is divided into five parts. It might be appropriate to divide it into five clauses rather than five subclauses, or perhaps even six, as we shall see later on.

The first part includes the first two subclauses, which consist of the introduction and definitions. The second part includes subclauses (3), (4), (5) and (6). Subclause (3) sets out the principle of protecting a source that has provided a journalist with information in confidence. Since the purpose of the bill is not to give journalists a privilege but to protect a type of journalistic activity that is considered useful and even necessary in a democracy, subclause (4) provides that the judge may, on his or her own initiative, raise the potential application of subclause (4).

The judge does not have to do so, but can if he or she believes it is necessary. The judge is given this power because protecting confidential sources is in the public interest and not a corporate privilege. A source who demanded confidentiality must not suffer because of the negligence or error of the journalist in whom the source confided, if the journalist does not keep his or her promise to protect the source.

Subclauses (5) and (6) deal with the exceptional circumstances under which protection will not be granted. They set criteria that the judge must consider, essentially the values that are at stake, in upholding or refusing protection. They also cover the procedure to follow and the burden of proof on each of the partners.

Subclause (7) does not deal with the confidentiality of the identity of a journalist source who has provided a journalist with information. It deals with journalistic information that has not been disclosed or published even if the journalist did not obtain this information from a confidential source. This protection is important so that the public does not perceive journalists as auxiliary police or as assisting the government, which would impede their ability to obtain information and properly inform the public.

In this regard, I could quote Judge La Forest of the Supreme Court of Canada in Rex v. Lessard at length, but I see that time is running out more quickly than I anticipated. Since this case did not involve protecting a source that provided a journalist with information in confidence, but searching Radio-Canada premises to find and seize video recordings of a demonstration of strikers, the last sentence applied to the journalistic activity in general and not just confidential source protection.

I also believe it is in the public interest that journalists not be regarded as auxiliary police. In fact during the 1970s, at a time when demonstrations were more commonplace and often less peaceful than today, to say the least, camera operators often became the target of projectiles thrown by some demonstrators. I have to say that the choice of words to translate the term “importance déterminante” was not the best. The words in French I use in the strict French sense: the word “importance” has the usual meaning given in the dictionary while the qualifier “déterminante” has a specific legal meaning. It refers to the basis on which the judge can decide for or against the party on the substance of a case or an implicit element.

The best translation that was suggested to me would be “determinative of the outcome” rather than “of vital importance”, which is too vague. It is also the expression used by the European Human Rights Court in Goodwin v. the United Kingdom to translate what was determinative in that case.

This criterion is different from the ones the judge must consider in subclause (5), since it does not have to do with protecting the secrecy of a source, but the fact that journalists must remain independent to do their job. The values are different, even if they all have to do with the gathering of information.

We notice that this independence of journalists is one of the surest ways of identifying democratic societies. In all non-democratic regimes, journalists or the majority of them are auxiliaries of the state when they are not quite simply thurifers of the government in place.

Subclauses (8), (9) and (10) have to do with issuing search warrants for media premises, the procedure to follow, how the searches are conducted and the provisions that guarantee protection of any information the judge deems should be protected.

These measures essentially repeat what is in the case law, which is the current authority. They have the huge advantage of taking up only one page, compared to the hundreds of pages lawyers pleading this type of case must now consult. At least, that is what two lawyers who teach and work in the field of information law all said. So these measures will be a useful tool for justices of the peace who issue search warrants and for the police officers requesting them, for journalists and their bosses who are subject to them, and for the lawyers they call on when the police show up at their door. In a country like ours, the process set out in this subclause is a civilized way of doing things.

Subclause (10) provides for information to remain secret that the court deems must remain secret.

And finally, subclause (11) represents the fifth and final part of this bill. We're taking advantage of this opportunity to solve a problem that is very tiresome for publishers: how to prove something is published? By producing the publication. Was it really necessary to do something more? If we want to prove that something has been published, one will only have to produce it in evidence, or as a supporting document.

Currently, many lawyers still believe that they have to subpoena heads of media enterprises as businesses in order to prove that something has been published. Subclause (11), which I hope will become section 39.5, could be used to remind them.

Finally, the objective of this bill is not to provide immunity to some criminals or individuals who wish to libel someone through a journalist. This principle of anonymity of confidential sources is something that some journalists have been prepared to go to prison to defend, and will continue to be in future. Indeed, some have gone to prison for it.

I think it would offend them greatly to see that the principles that they have defended with such courage might be used by criminals to escape the punishment they deserve. I believe that my bill is clear enough, particularly as it obliges the court to assess the values at stake, which are freedom of information and the interest of the state in having knowledge about and in punishing the crimes that have been committed. However, after having discussed this with many people, I felt it would be a good idea to add a clause that clearly states that this bill does not apply... In fact, I have it here.

In fact it would read as follows: “Sections 39.1 to 39.5 would not prevent the seizure or disclosure of any communication or document prepared with a criminal offence or a fraud in mind.”

This interpretation, I am sure, will reassure the police, and will make it clear that we are not talking about a privilege and that this protection will cease when we are talking about indictable offences.

I felt it was a good idea to add a few words here and there in order to clarify the fact that it is not a case of protecting criminals. As far as sources are concerned, for example, I am talking about confidential sources. As far as the information gathered by journalists or the documents created are concerned, it is very specifically in the carrying out of their professional activities. These very short amendments will be able to reassure a lot of people.

Thank you, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Thank you, Monsieur Ménard.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, and congratulations on getting your bill this far. That's great.

I guess we're treading a fine line in legislation like this. We need freedom of the press; it's a hallmark of our society. But we don't want to put in provisions that will give them powers other individuals don't have that aren't related to their work.

I just want to make sure--and I think you cleared it up at the end of your opening statement--that if an ongoing series of articles resulted in a criminal investigation, the police would have access to the journalist's source and would be able to ask the journalist and the source questions about that criminal situation.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I have no objection to adding that, but as you can see—it is in subclauses (5) or (3)—the procedure that is set out allows the judge to weigh the contradictory values. On the one hand, we are talking about freedom of information and the fact that journalists must not be perceived as being auxiliaries of the police or of the state, so as to allow people who would like to give them information to trust them, and on the other hand, the interest of the state to investigate crimes and punish criminals. The document used in the commission of an indictable offence could be seized.

[Larry Bagnell, Liberal, Yukon, YT]

Of course, a journalist is not going to do the police's work for them. But the police would have the same right to ask questions of the journalist as they would of anyone else in a criminal investigation, including who their source was.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Yes, but as you know, no one is obliged to answer police officers, except in very unusual cases. Under such conditions, the journalist is the guardian of the trust that he has promised. And during a police investigation, he needs protection from a court order. In any case, no one is obliged to cooperate with the police in our country, except under rare circumstances.

[Larry Bagnell, Liberal, Yukon, YT]

Could you briefly explain, without going into the section, the major way in which journalists are not protected now in the way they are under this bill?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

They are currently protected by the charter and by case law. I attempted to sum up in two pages what was the essential case law and I made a small addition to it that I will talk to you about later. The huge advantage of my bill affects practice. The procedure generally is recognized in case law, but within the framework of cases that at times are contradictory, the judge would have to apply it. He would at that time see what values are involved.

He would have to review the case law in order to determine how to weigh the contradictory interests in light of our values. This is the great advantage of this bill. That in fact is what one of the lawyers I consulted said, and he is a judge today, but this was his specialty and he worked in this domain at the time. He told me that my bill was fantastic because in two pages, I was allowing him to avoid quoting one thousand pages of case law. I did not want to add any provisions to my bill that were not already recognized by the charter—

[Larry Bagnell, Liberal, Yukon, YT]

Okay.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

—except for one, which I will discuss with you later.

[The Chair, Conservative, Art Hanger]

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Congratulations on your bill, Mr. Ménard. You are appearing before the committee, and I see that you have the support of the Barreau du Québec, the Conseil de presse, the Fédération nationale des communications and the Fédération professionnelle des journalistes. You have shown how important this bill is in terms of freedom, democracy and the balance of power.

If I may, I would like to deal with two questions at the outset. I would first of all like to know what inspired your definition of the word “journalist”, and to have you talk to us about the main elements of that, if you could explain how this definition is clearly set out and how it could prevent any excess. Afterwards, you could perhaps deal with the issue that no doubt represents the second most important component of your bill, that is the conditions under which a search warrant can be issued. I am referring here, of course, to the access to premises where sources might be found, where the media are located.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

There are very few definitions of the word “journalist” in existence. I asked the people at the Library of Parliament to do some research on this subject, and they came up with the same results as me. They came to the same conclusion. There have been some definitions for some specific purposes. In this case, because it is an issue not of protecting journalists but of protecting their sources, we wanted the definition of the word “journalist” to correspond to people who would be likely, in the practice of their profession, to be the guardians of some secrets or of anonymity. Our definition limits the sense of the word “journalist”. For example, it does not include people who write editorials. We define the word “journalist” as follows in the bill:

A person who contributes regularly and directly to the gathering, writing, production or dissemination of information for the public through any media, or anyone who assists such a person.

This is what one finds in the case law. The word “regularly” is important. We're not talking about someone here who wants to commit libel at some point. Furthermore, it is in the practice of the profession. It concerns the gathering of information and what follows that and it is through a media outlet. We are not talking about a private investigator or anything of that nature. Finally, it has to be intended for the public. I'm not talking about a niche group: I'm using an expression that is commonly used by journalists. We're talking about the general public. We're not talking about church bulletins, annual reports of corporations or other things of that nature, but indeed about information that is intended for the general public.

We have left enough flexibility to be able to plan for the future. Every morning, I read a paper on the Internet that is not easily accessible. I think there will be more and more papers on the Internet and some of them will only be available in that format. However, they will have to have people working for them that gather information and process it for the public. In addition, I added the words “anyone who assists such a person”. Experience in other jurisdictions has demonstrated that it was useful. In fact, cleaning ladies have been hired in some countries to go through journalists' notes in order to find out who their confidential sources were. The term “anyone who assists such a person” covers that kind of situation.

I also have an amendment to propose that, I believe, would deal with the objections that some police officers have raised and shared with me. As far as search warrants are concerned, I think I was able to appropriately sum up two Supreme Court cases that are part of the case law, that is to say the requirements of both Regina v. Lessard and CBC v. New Brunswick (Attorney General). I think that if you read the relevant excerpts, you will see that this summary is appropriate. I think we should probably be talking about “search warrants of media premises”. That is what I was saying in my presentation and it is also what is said in most of these cases. Journalists are not targeted at home.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have time to ask another question, Mr. Chairman?

[The Chair, Conservative, Art Hanger]

You may ask one.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Ménard, clauses 39.1(6) and (7) of your bill appear to set out different criteria for removing journalistic privilege. Can you elaborate?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Yes, I can. I've noticed that this closeness confuses a lot of people. I don't believe, however, that it will confuse the court. In clause 39.1(6), a further reference is made to protecting confidential sources; in clause 39.1(7), another issue is raised: unpublished journalistic material. This may include, for example, notes or film excerpts taken by journalists, which they have not published. These provisions are based on the principle that journalists must not be perceived by the public as adjuncts to the police. The public must be able to trust journalists implicitly.

[The Chair, Conservative, Art Hanger]

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, Mr. Chairman.

Mr. Ménard, thank you for being with us.

It has been suggested that the definition of “journalist” is not rigid enough and that too many people may call themselves journalists. Could you comment on this?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

To begin with, the definition only applies to clauses in the bill. What are the chances that a cameraman would be covered by the words “anyone who assists such a person”? It is only important insofar as he would probably know the source, if that information were of interest. The definition must therefore cover any individual who may be, albeit sometimes accidentally, a depository of the identity of the source one is seeking to protect. He is not given a status.

It is perhaps the genius of the French language at work here, but legislation seeking to protect any journalistic activity must define the word “journalist”. I noted that other pieces of legislation use the expression “individual covered” to designate individuals who may refuse to reveal a source. I still have a preference for that wording because it is a question of journalistic activity. You must find “journalist” and indicate that under this definition, in the clauses in question, any persons assisting such an individual are included.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Have you seen any other definitions of the word “journalist”?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I have seen others. We've tried to do our best based on what we've read. Nevertheless, I would suggest you improve it. So as to reassure the public, I'd be willing to add to the definition by saying “as part of independent or paid work”. This would further highlight the fact that the journalist must be a member of a media company, and not just someone who suddenly calls himself a journalist so as to defame someone or spread a falsehood all the while claiming he has a secret source.

In any event, any journalist with a secret source is civilly liable. Any such individual is also criminally liable should he or she engage in libel. The journalist can't use the excuse that he wants to keep a source secret. I want to protect individuals who may end up doing something positive for our society. I'm referring to journalists who get information from confidential sources. I'm referring to journalists who carry out an investigation and publish it once they are in a position to submit independent proof of their source to the public. Should their source mislead them, these individuals would be liable for any damage caused to a third party as a result.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

One other criticism has to do with clause 39.1(8). You use the word “judge” in relation to search warrants. In Ontario, it is a justice of the peace. Is the same true of Quebec?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

A justice of the peace.