Evidence of meeting #17 for Justice and Human Rights in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was journalists.
A recording is available from Parliament.
Counsel, Criminal Law Policy Section, Department of Justice
I'm sorry. Was that directed to me?
Counsel, Criminal Law Policy Section, Department of Justice
I can only indicate what the case law has been focused on. The case law has tended to focus on the identity of the source. Whether or not the identity of the source is available by some other means, other than calling the source or breaching journalistic privilege, has been an important consideration. I can only respond in that context.
As an Individual
As a footnote, there are cases that have interpreted this somewhat more broadly. We're dealing not only with alternative sources of information considered in relation to the source, but also with alternative sources of information considered in relation to the object. If one were videotaping a demonstration, it wouldn't be just alternative sources of the videotape; it would also be the information contained in the videotape. This gives rise to a host of other difficulties.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
My question is directed to Ms. Wry.
In your practice, have you ever heard, even once, of persons in the army who may have received information from a source which demanded confidentiality? I am referring to the individuals that you have spoken of.
LCol Jill Wry
My apologies. I hope I caught that question. Are you asking me if I've run into any cases where people have been required to provide information they've received from confidential sources?
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
It was a little more specific than that. Have you heard of a single case in the army of someone who may have received information from a source which demanded confidentiality?
LCol Jill Wry
Personally I'm not aware of any case of that nature. However, the concern we have with regard to the bill as it's proposed regards the breadth of the definition of journalist and the fact of the confusion and difficulty that may create, given its breadth, to people who are provided with different types of information and how they may then try to characterize their status.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Do you prefer the current state of affairs, where there is no definition of the word “journalist”?
LCol Jill Wry
No, sir, I'm not suggesting that at all. My goal here today was simply to advise you of some practical issues that this bill, as proposed, and the framework that's proposed would have on the Canadian Forces in the area of unintended consequences. It's not the idea that there ought not to be a mechanism in place, but a mechanism should perhaps take a number of different situations into account so as to avoid those types of consequences.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
The more you listen to a second language, the better you learn it. That is what I try and do. What is the overriding clause? Is it clause (2)?
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Would you be happy to learn that that's not my idea, it is the law clerk's? Personally, I'm satisfied with the general rules of thumb for interpreting legislation, where a specific act takes precedence over broader legislation. If the legislator decides to enact a specific act, he or she does so first being familiar with the broader legislation. As far as I'm concerned, that paragraph could be taken out; it wasn't my idea.
Does anyone else have a definition of the word “journalist” he or she would like to propose?
As an Individual
Certainly there are definitions from other jurisdictions, the United States, for example, that cover part of the problem by specifying that the information provided is a part of someone's livelihood or a substantial portion of their income. That doesn't capture the second difficulty with the definition; that is in such publications as NAMBLA's, where you have someone who, for very different interests, assumes the role of a journalist, and I'm not frankly sure how you would capture that within the definition. That's a very difficult drafting exercise, and I have the easy role of identifying a problem without having to propose a solution to it.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Chair. I guess I'll direct this, in the interests of time, to Ms. Markham or Mr. Hawkes. We've had a bit of discussion earlier on whether this is just codifying what is already the law, and when I hear your testimony, it seems very clear to me that this is going far beyond what the current state of the law is.
In fact, I'll put this question to you. Would there not be scenarios where, if this were to pass, an investigation that could be initiated and successfully completed under the current law, and even one dealing with an important case potentially involving national security, would perhaps not get off the ground or would fail under these provisions?
Is that fair to say, that this is going far beyond codifying what's already in existence?
As an Individual
I believe it does. It goes far beyond in that it extends in at least three respects. First of all, it extends what I would call a qualified class privilege because of the reverse onus on journalists, not in respect of confidential information but of any source information.
Second, it attempts to codify requirements for search warrants but leaves out many of the requirements that are identified in the case law as factors to be considered and leaves them as sole criteria, so that in the absence of those criteria you wouldn't get the warrant. In current circumstances it would be a balance of many factors.
And last, what I call the work product exception is not found in the law, not only here but anywhere else that I've been able to find.
Counsel, Criminal Law Policy Section, Department of Justice
I don't think I have anything to add to that.
Thank you.
Conservative
The Chair Conservative Art Hanger
Make it very quick. I see the bells are now beginning to ring, so we have very little time left. I'd like to go to Mr. Christopherson too.
Conservative
Rob Moore Conservative Fundy Royal, NB
Okay.
Ms. Markham, on the issue of the override, how encompassing is that? When I read the bill--and I've read Bill C-426--it appears to me that this trumps everything else that's out there. Can you quickly comment a bit on the impact that could have beyond what we may be contemplating around this table right now?
Counsel, Criminal Law Policy Section, Department of Justice
I might just say that in contrast to the current law, where the issue of journalistic privilege can be raised in any context, it wouldn't necessarily be...I won't say honoured, but agreed to in any context. It would be my understanding that the effect of this would be--in contrast to the current law--that this would be a starting point. This regime would be where you would start in terms of assessing whether or not the journalist could be compelled to provide information. To the extent that it could be in conflict with other provisions in the Canada Evidence Act or other federal statutes, it may raise some difficulties in terms of deciding how the courts would deal with the issue.
But this section would be the starting point.
