Thank you very much.
I appreciate the opportunity to be here. As the chair indicated, I am a prosecutor in Alberta. I have been prosecuting for approximately 17 years. Currently I prosecute cases in the courts of appeal and the Supreme Court of Canada. I have been asked by my department to appear and express our concern about this bill. That concern can really be divided into two main categories.
The first category relates more to process, and the second relates to the substance of the bill. The process concern can be summarized briefly. It is this. When fundamental changes are undertaken with respect to the criminal law or related acts, frequently, almost invariably, there is extensive consultation. That consultation is critical because not only are there many other stakeholders who are involved, but from the perspective of a prosecution service, the practice changes across the country.
The approach we might take in Alberta with respect to advising police on investigations or prosecutions might very well be different from the approach taken in another province or jurisdiction. Those differences can often have a critical impact on what the legislation is going to do. So without a consultation that gives an opportunity for all of those voices to be heard, and all of those differences to be taken into account, you run the very grave risk of significant unintended consequences. It is to those consequences that I wish to very briefly speak.
In my submission there are at least five areas of the bill that give rise to these unintended consequences. The first is something that has been spoken of, and that is the breadth of the definitions. The definition of journalist is particularly broad. It is broader than analogous provisions--for example, in the United States before the Senate and House of Representatives. The definition is, in my submission, impermissibly broad in two respects. First of all, you can see in analogous legislation in the United States, for example, that specific efforts were taken to exclude those who were not in the business of publishing or disseminating information for gain—that is, as part of their livelihood.
Now, in the age of the Internet, you can readily see where that difficulty might arise. If I have a blog, I can write anything on that blog. I gather the information. I may research it. I then disseminate it. I would qualify as a journalist and have protection under this bill. That could apply virtually without limit to anyone with access to the Internet.
The second difficulty with the definition, and this may be an intractable problem with this structure, is that you can't exclude from the definition certain kinds of journalists or people who would qualify as journalists. There are two organizations that I would reference in this regard. The first is an organization called NAMBLA. It's the North American Man/Boy Love Association. It's their object to, under the guise of seeking to change the law, advocate for sex between adults and children. They have a publication that circulates. Anyone who writes for them would qualify as a journalist. They may well have descriptions of activity that would either constitute an offence under the child pornography provisions of the code or be a description of a substantive offence under the code. We would have no way of excluding them from the definition of journalist.
As a related example, there's a website in the United States that I'm not advocating, but it's called whosarat.com. It gathers and publishes on confidential informants: the picture of the informant, a description of them. If you happen to be an undercover operative in the United States, you may well find your picture and your description on that website. People who run that website are journalists, according to this bill, and would be afforded the protections of the bill. I don't for a moment suggest that was the intention, but it may be the unfortunate reality.
Second, the definition of record in the bill is also very broad. It would capture virtually any kind of information, including pictures or videos. The case law, particularly Lessard, differentiates the expectations of privacy that might attach. You can well appreciate that speaking to a confidential source is a very different circumstance from videotaping a public demonstration; the bill doesn't differentiate between those types of information and the case law does.
A further difficulty, and this is a fundamental difficulty, is that this bill drastically increases the scope of privilege. Currently every legislative provision of which I am aware, as well as the common law, protects privileges for information that's given in confidence. There is no reference in the operative provisions of the bill to these being confidential sources. They are simply journalists' sources. That would result in a protection of virtually any kind of source, and it would be a fundamental and--with respect--virtually unprecedented expansion of the law that's not found in any other common-law country of which I am aware.
The next difficulty to which I refer is the restriction on the dissemination of unpublished information in proposed subsection 39.1(7) of the bill. This would provide a protection that's broader than that attached to what's called work product privilege. It's a subset of solicitor-client privilege. If I, as a lawyer, am preparing documents in contemplation of a court case or litigation, those documents are privileged. That privilege only lasts as long as that particular litigation. The Supreme Court has said that when that litigation ends, the privilege ends. That is not so with this subsection. If a journalist investigates something, it would fall subject to this protection, and the standard is particularly high.
Briefly, the onus provisions of the bill are fundamental and significant. They not only cause difficulty for prosecutions, but also fundamentally alter the law with respect to disclosure of third-party records. If I am Mr. Charkaoui and I am seeking to get information now that might be in the hands of a journalist and would assist me in my defence, this bill imposes a higher standard or onus than currently exists under the law. This bill changes the law with respect to disclosure and would impose a standard that would likely infringe the Constitution. It's a higher standard than in O'Connor or Stinchcombe or any of the related legislation.
Finally, with respect to search warrants, the bill seeks to codify the law, but in my respectful submission dangerously oversimplifies it. Significant considerations are left out of the list. I'm certain it is done by omission and unintentionally, but there are things not included in that list. If the bill is passed, it will be interpreted as a codification and a replacement of the existing common law. Those factors will no longer be available to be considered. All these things will result in a fundamental and, in my submission, drastic change of the laws that now exist.