Thank you, Mr. Chair and honourable committee members. It's my pleasure to speak to you today about the amendments in Bill C-426, and particularly to explain some of the practical impacts those proposed amendments would have on the Canadian Forces.
I would like to make it very clear that it's not my purpose today to question the importance of the legislation or the importance of the amendments that have been proposed, but to ensure that members of the committee are aware of some potential implications the proposed amendments have on the Canadian Forces and the Canadian military justice system. If I could classify this information, I would put it in the category that my friend Mr. Hawkes has--as unintended consequences of the proposed amendments.
First of all, as you know, the definition of journalist is defined in the proposed legislation to include any “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”.
As it's currently worded, this definition would apply to members of the Canadian Forces who are involved in activities that are not journalistic in nature. This would include members whose primary duties involve the gathering and dissemination of information to the public, such as public affairs officers. As well, the definition would include members who make regular contributions to Canadian Forces publications for the purpose of raising awareness on topical issues such as military personnel policies and information on compensation and benefits. Furthermore, anyone who provides assistance to those who gather and disseminate this type of information, such as computer technicians or administrative clerks, would also be covered by the definition.
The potential impact of having the definition of journalist apply to Canadian Forces members arises from the conflict that could emerge between the protections proposed under this bill and the obligation on military members to report breaches of discipline. Military regulations require members of the Canadian Forces to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders, and instructions governing conduct. Given the broad definition proposed for journalists, there is a real potential that conflicts will arise.
Second, as you are aware, the proposed amendments will apply not only to judicial proceedings but also to non-judicial proceedings over which Parliament has jurisdiction. Under the National Defence Act, that would include boards of inquiry, which can be held both in and outside of Canada. According to the proposed amendments, in order to compel journalists to disclose the identity of a source during a non-judicial proceeding such as a board of inquiry, it would be necessary to adjourn the proceeding and seek a judicial order. The potential logistical impact of this requirement is compounded by both the breadth of who can be considered a journalist, if the present definition is maintained, as well as the fact that boards of inquiry can proceed outside of Canada. There would be a requirement to seek an order back in Canada in order to proceed with that inquiry.
Furthermore, when determining whether it is in the public interest to compel the disclosure of a source, a judge is required under proposed paragraph 39.1(5)(b) to consider three factors, which have already been discussed: the outcome of the litigation, the freedom of information, and the impact of the journalist's testimony on the source.
The narrow construction of these factors would make it difficult to apply them in the context of a non-judicial proceeding, such as a board of inquiry, which is an investigative tool, not a tool for litigation, or to consider other potentially relevant factors, such as operational or national security, which would be very relevant in the types of non-judicial proceedings that could arise in the context of the Canadian Forces.
Honourable committee members, I would like to thank you for allowing me this opportunity to raise these practical matters with you. I'd be very happy to answer any questions you may have.