Thank you very much.
I appreciate the opportunity to speak to you today. Perhaps I should indicate why I'm here. The Department of Justice is, of course, in view of the minister's responsibility for criminal law reform, interested in any bill that would propose fairly significant changes to the criminal law, and hence I am here today to very briefly give an overview of the current law and our assessment of how the bill might change the current law, again whether intentionally or not.
I won't repeat the points that have been already stated, in the interest of time. I might just start, though, by indicating that with respect to the definition of journalist, one of the things that I'd like to bring to your attention is that currently the case law, while not defining a journalist, has been in relation to professional journalists, people who have been employed by newspapers, etc. The activity that's been the subject of consideration by the courts has been journalistic activity. The information in question has been in relation to that activity, and while that may be intended in the definition, I direct your attention to the fact that there is no definition of information in this bill, and there isn't expressly a requirement that the information in question relates to journalist activity. I just highlight that for your consideration.
The other thing I'd like to point out certainly has been referred to by Mr. Hawkes. Currently at common law there is a journalistic privilege. It is a case-by-case privilege. The onus is initially on the journalist to show that the information in question, including the identity of a source, is confidential information. There is a common-law test in respect of assessing whether that information is confidential or not. Then the final aspect of that is, again, an onus on the journalist to demonstrate, through a balancing test, that the interest in non-disclosure outweighs the interest in disclosure. The entire time that onus is on the journalist. In the bill it would appear that there's an assumption that the information is confidential and it is not to be disclosed unless the individual seeking disclosure is able to satisfy particular statutory tests. That would certainly be a difference between the current law and the bill.
Also, very briefly, I'd like to direct your attention to the override provision, as we call it, subclause 39.1(2), which gives priority to this particular act over not only other acts of Parliament but also other provisions of the Canada Evidence Act. I perhaps could direct your attention to the fact that with the reference to search warrants, with the references in the bill to various tests, it would appear that the bill is primarily directed either to criminal or to civil proceedings. It is to be remembered that the Canada Evidence Act, of course, governs all federal proceedings, which includes proceedings in respect of which a judge is not the fact-finder. So it would include administrative tribunals, proceedings before committees, commissions of inquiry, etc. From that perspective, one might be concerned that the scope of the bill is perhaps not consistent with all federal proceedings that are governed by the Canada Evidence Act.
I would like to further indicate that the specific tests for determining, for example, whether or not the identity of a source and whether unpublished information in the possession of a journalist should be revealed are, in my submission, different from what currently is at play. Mr. Hawkes has referred to the test for unpublished information. The court is prohibited from ordering the journalists to disclose that unpublished information unless two specific statutory criteria are met. I suggest to the committee that this is quite different from, for example, the various factors that were considered in the case of R. v. Hughes, where the court was concerned with whether or not the statements of sexual assault complainants should be revealed to the defence. Those statements were in the possession of a journalist.
In that particular case, the court made reference to the importance of many different factors in balancing the interests of disclosure versus non-disclosure. They include such factors as the relevance and materiality of the evidence to the issues at trial; the necessity of the evidence to the accused's case and his or her ability to make full answer in defence; the probative value of the evidence; whether the evidence is available through any other means; whether the media's ability to gather and report the news will be impaired by being called to give evidence and, if so, the degree of the impairment; whether the necessity of the evidence in the case at hand outweighs the impairment, if any, of the media; and whether the impairment of the media's function can be minimized by confining the evidence adduced to only that which is necessary to the accused's case...[Technical difficulty--Editor]...certainly a sophisticated consideration of the pertinent factors.
Finally, in the interest of time, I'd just like to draw your attention to the fact that with regard to search warrants, currently the balancing test at play in terms of whether or not a search warrant should be issued involves a consideration of the court being required to strike a balance between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination.
You may be interested to see that the balancing test in proposed subsection 39.1(8) is reflected in one of the paragraphs, proposed paragraph 39.1(8)(b), leaving the possibility that as opposed to being the overarching determinant of whether or not a warrant will be issued, the balancing test becomes one of many criteria, all of which have to be met--and if all of them are not met, the judge is precluded from issuing the warrant. I think that is a relatively significant change from the current law.
Thank you, Mr. Chair.