Justice Committee on March 5th, 2008

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

Is the same true of Quebec?

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

Sometimes we make mistakes in French because of a poor translation. Now the same thing is happening, but in the other direction. In French, you always refer to the “juge de paix”, “juge de la cour provinciale”, “juge de la cour supérieure”. I think that Superior Court judges can also issue warrants, but they are obviously not the ones being covered. By using the word “judge”, I thought that I really covered all three categories in English, i.e. “justice of the peace”, “justice” and “judge”. You could correct this translation error. To make this correction match in English, you could add “juge de paix ou juge” in French, because subsection 487(1) of the Criminal Code refers to “juge de paix”.

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

Do I still have time?

[The Chair, Conservative, Art Hanger]

You still have time, Mr. Comartin.

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

Mr. Ménard, another criticism is that you haven't made the distinction between information involving public safety derived from a terrorist and the information which comes from your everyday criminal. Did you consider that it might be necessary to make such a distinction? I'm thinking in particular to what happened to Ms. O'Neill. The RCMP and other intelligence agencies want more power to protect or to be in a position to charge journalists in order to obtain their sources, when national security is at stake.

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

Correct me right away if I'm wrong, but I think Ms. O'Neill is the one who published information about Maher Arar in the Toronto Star. Justice O'Connor went to the trouble of investigating this and found that the information was false. I certainly do not want to protect that kind of thing. And that's why I'm suggesting an amendment.

When the judge applies subsection 39.1(5) and weighs up findings in the matter, freedom of information, its legitimacy, and the ramifications testimony on the source would have—and the source himself would have committed a crime for having provided information with such a goal in mind—I believe the judge will necessarily come to the conclusion that the source is not protected.

Now, I'll say this quite honestly, my goal was not to protect police officers or secret agents either when they use journalists to discredit somebody they're not in a position to charge. Moreover, when you factor in the addition I suggested earlier, those cases would be covered.

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

Merci.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair, and thank you, Mr. Ménard, for being here and appearing today on behalf of your bill.

Mr. Ménard, would it be safe to say that if your bill were to pass there will be instances when, but for your bill passing, a successful prosecution might have been possible in a case dealing with a serious criminal offence, or even a case dealing with our national security...? Would it be safe to say that there could be an instance, it's very conceivable, where under the current law we would have a successful prosecution, and if your bill were to pass, the evidence required for successful prosecution would not be available otherwise?

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

I don't think so.

Honestly, I don't think so. I basically tried to summarize and clarify the current legislation because, when it comes to journalists and the world they inhabit, you have to make sure judges follow the same procedure across Canada.

Let's look at our neighbours. In the United States, in 30 states and in the District of Columbia, there are 31 pieces of legislation on protecting sources. The federal government is in the process of drafting one. Virtually every civilized country—certainly every western European country—already has such legislation. This came about after the First World War, after Wigmore, for those who prefer that point of reference. The free and independent press in the context of a complex modern society, is a core value. What's more, this is stated in the charter, although it is good for legislators to make such a pronouncement.

[Rob Moore, Conservative, Fundy Royal, NB]

I would have to disagree, because to take the assertion you've made, that a case could not be impacted—a case, for example, dealing with national security—would be to suggest that your private member's bill does nothing beyond what the law currently is in our country. The fact of the matter is, if this bill were to pass, my read of it says that it goes well beyond what the current common law is in this country.

I think, in fact, your bill is designed to protect certain sources and to protect certain information, as I see it—or that would be the effect, if it passed. Therefore, one is led to the inescapable conclusion that what would be a successful prosecution today on a case of national security would not be a successful prosecution if your bill were to pass.

Obviously we recognize—probably everyone around this table recognizes—those basic rights that you've talked about, the charter rights you've mentioned. But just to be clear, in law, if it were to pass, this bill goes well beyond those well-established rights.

I have to refer you—I know you've been following it—to the recent case in the Court of Appeal for Ontario, R. v. the National Post, where the Court of Appeal in Ontario discussed these very issues and this balance that we strive to have in Canada between protecting and upholding our freedoms, but also protecting and upholding the rights of Canadians—and that means protecting them from crime and from issues that could impact on national security. The court, in fact, strongly upheld what is the current state of the law.

I would like to get your perspective on that, because to say that a prosecution would be treated the same today as it would be after your bill had passed.... There would be some evidence available now that would not be available if your bill passed. I think we have to be quite aware of that.

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

That depends on the jurisprudence you refer to. And also, I'd need more details on the hypothetical case relating to national security that you're referring to.

I actually read the transcript of the case you're referring to closely and I refer you to paragraphs [116] and thereafter, including [118]—which I will not read aloud now—since you seem to be familiar with them. You'll see that by applying my bill, and also the amendment put forward, the decision would be the same. Furthermore, it's a decision with which I would agree.

Now, when I drafted my bill, I modelled it not only on Canadian jurisprudence, but also international jurisprudence. I read cases from the European Court of Human Rights, including Goodwin v. United Kingdom. I can tell you that what you find in my bill is basically the norm in civilized countries such as ours; countries which consider journalistic independence to be a fundamental value in a modern democracy.

In fact, if you read subclause (5)(b), the judge is called upon to weigh things up. Now, for further clarity, I'd suggest you add paragraph (iv), which would be similar to subclause (8)(b). You would still have all of that as a safeguard since that's what the Ontario Court of Appeal decision was based on, that is on the object used to transport the fraudulent document. In other words, the envelope itself would have been used in the commission of a serious offence. Under my bill, I'm convinced that by applying the principle of subclause (5)(b)—

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Ménard, I hear what you're saying. The fact of the matter is, though, there is a difference. I mean, obviously Canada is a civilized country, and we all have tremendous respect for human rights. We recognize that through case law and through amendments that have been made there is right now what we feel is a balance, and it's a balance that's been upheld. It's a balance that respects the charter, respects charter rights.

But to be clear, under the current law the onus is on a journalist to show that information is privileged--that's the current law--and that it is in the public interest not to disclose the information. That is the test.

In really direct contrast with that, your bill would assume that all this information is confidential and would prohibit the disclosure unless the person seeking disclosure meets the test of the bill.

Quite frankly, that is a fundamental shift.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Mr. Ménard, you have one quick reply to that comment from Mr. Moore.

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

You're right, the burden of proof is shifted, and that is deliberate. That's what's new. But I think that that shift would bring us in line with the international jurisprudence.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chair.

Mr. Ménard--

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

The principles are the same, but you are right to say that the burden of proof is different. Perhaps it is not different, but it does not attach to the same individual.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Good afternoon, Mr. Ménard.

First of all, before I get out my scissors and my paring knife, I wanted to congratulate the member for bringing the bill forward. He's done a really good job of attempting to codify the sought-after balance between the rights of the individual, the interests of the state, and the freedom of the press. The freedom of the press is a fundamental plank of our democracy, as it is in most democracies. The House has already accepted in principle the object of the bill, and it's a good effort.

Now I have some questions about some of the details, as Mr. Moore does. I think Mr. Moore probably has a slightly longer list of questions. But I want to direct your attention to subparagraph 39.1(5)(b)(i). These are the criteria, and it refers to the outcome of the litigation.

I'd like you to rethink that a little bit. You may not have an answer now, but how could the judge in making this decision, how could the parties in making a decision, take into account the outcome of the litigation when they wouldn't know it? They'd be right in the middle of the litigation.

You may be referring to the goal or object of the litigation as opposed to the actual outcome...unless you're thinking of the impact of the outcome of the litigation?

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

I cannot give you a better example than Justice Noël's decision in Charkaoui versus the two journalists from La Presse who published information from the Canadian Security Intelligence Service. This information was not at all flattering to Mr. Charkaoui. The issue in question was to determine whether, which is what Mr. Charkaoui claimed, the government or government officials deliberately used journalists in order to discredit Mr. Charkaoui and bolster the grounds for having the security certificate issued against him upheld. He called for a stay of proceedings, because of this abuse. Justice Noël questioned the importance, as it turns out, of knowing the identity of the secret agents who, illegally, according to Charkaoui, gave false and confidential information to the journalists. That was the matter in regard to which he had to make a decision.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Okay.

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

It may be something else, but—

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Ménard, if you go through all of the details of the case, it'll be an interesting anecdote, but it will use up all of the five minutes I have.

I raise that as an issue that I did notice.

Secondly...I'd like you to answer real quickly. Think about this, in terms of the definition of who a journalist is. The definition does appear rather broad. I'm sure all the journalists appreciate it, but is Conrad—

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

Some journalists find it too restrictive.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Let me ask you a question. Is Conrad Black a journalist? Is Don Cherry a journalist? Are the Yellow Pages and the people who make them, corporate-wise, journalists? Are the employees of an access to information office journalists? Is Microsoft Corporation a journalist? Is the party who prints and collates our Quorum here in Parliament a journalist?

The answer may be yes to all of those. It may not be your intention, but if the answer is yes to most of those, then perhaps the definition has become a little too broad, and we may have to spend some more time looking at that.

Do you have any comment on that?