Thank you, Mr. Chairman.
I did not table this bill in order to create a privilege, but quite the contrary, in order to protect a certain kind of journalistic activity that has proven in every country in which it has been applied that it allowed for certain very serious situations that required correcting to be corrected. And in passing, these countries are our allies, they are also recognized as democratic countries.
This bill deals with two topics of great importance to any democratic society in which freedom of the press and freedom of information are fundamental values ensuring that an informed debate can take place on issues facing modern societies. In the vast majority of democratic societies, legislation has been passed concerning these two topics. In other societies, such as ours, the courts have had to rule on these matters as specific cases were brought before them. This has resulted in a number of sometimes contradictory rules. As a whole, all these rules may therefore appear inconsistent.
However, the courts have consistently recognized the importance and relevance of such a debate in the context of a free and democratic society. The time has come for the elected representatives of the people to do their part to help solve in a civilized fashion conflicts which, inevitably, might arise from time to time between legitimate objectives of governments and the means specific to journalistic work.
In dictatorships or totalitarian regimes, these issues never arise, but they have arisen in all democracies. To understand this bill better, members need to see that it is divided into five parts. It might be appropriate to divide it into five clauses rather than five subclauses, or perhaps even six, as we shall see later on.
The first part includes the first two subclauses, which consist of the introduction and definitions. The second part includes subclauses (3), (4), (5) and (6). Subclause (3) sets out the principle of protecting a source that has provided a journalist with information in confidence. Since the purpose of the bill is not to give journalists a privilege but to protect a type of journalistic activity that is considered useful and even necessary in a democracy, subclause (4) provides that the judge may, on his or her own initiative, raise the potential application of subclause (4).
The judge does not have to do so, but can if he or she believes it is necessary. The judge is given this power because protecting confidential sources is in the public interest and not a corporate privilege. A source who demanded confidentiality must not suffer because of the negligence or error of the journalist in whom the source confided, if the journalist does not keep his or her promise to protect the source.
Subclauses (5) and (6) deal with the exceptional circumstances under which protection will not be granted. They set criteria that the judge must consider, essentially the values that are at stake, in upholding or refusing protection. They also cover the procedure to follow and the burden of proof on each of the partners.
Subclause (7) does not deal with the confidentiality of the identity of a journalist source who has provided a journalist with information. It deals with journalistic information that has not been disclosed or published even if the journalist did not obtain this information from a confidential source. This protection is important so that the public does not perceive journalists as auxiliary police or as assisting the government, which would impede their ability to obtain information and properly inform the public.
In this regard, I could quote Judge La Forest of the Supreme Court of Canada in Rex v. Lessard at length, but I see that time is running out more quickly than I anticipated. Since this case did not involve protecting a source that provided a journalist with information in confidence, but searching Radio-Canada premises to find and seize video recordings of a demonstration of strikers, the last sentence applied to the journalistic activity in general and not just confidential source protection.
I also believe it is in the public interest that journalists not be regarded as auxiliary police. In fact during the 1970s, at a time when demonstrations were more commonplace and often less peaceful than today, to say the least, camera operators often became the target of projectiles thrown by some demonstrators. I have to say that the choice of words to translate the term “importance déterminante” was not the best. The words in French I use in the strict French sense: the word “importance” has the usual meaning given in the dictionary while the qualifier “déterminante” has a specific legal meaning. It refers to the basis on which the judge can decide for or against the party on the substance of a case or an implicit element.
The best translation that was suggested to me would be “determinative of the outcome” rather than “of vital importance”, which is too vague. It is also the expression used by the European Human Rights Court in Goodwin v. the United Kingdom to translate what was determinative in that case.
This criterion is different from the ones the judge must consider in subclause (5), since it does not have to do with protecting the secrecy of a source, but the fact that journalists must remain independent to do their job. The values are different, even if they all have to do with the gathering of information.
We notice that this independence of journalists is one of the surest ways of identifying democratic societies. In all non-democratic regimes, journalists or the majority of them are auxiliaries of the state when they are not quite simply thurifers of the government in place.
Subclauses (8), (9) and (10) have to do with issuing search warrants for media premises, the procedure to follow, how the searches are conducted and the provisions that guarantee protection of any information the judge deems should be protected.
These measures essentially repeat what is in the case law, which is the current authority. They have the huge advantage of taking up only one page, compared to the hundreds of pages lawyers pleading this type of case must now consult. At least, that is what two lawyers who teach and work in the field of information law all said. So these measures will be a useful tool for justices of the peace who issue search warrants and for the police officers requesting them, for journalists and their bosses who are subject to them, and for the lawyers they call on when the police show up at their door. In a country like ours, the process set out in this subclause is a civilized way of doing things.
Subclause (10) provides for information to remain secret that the court deems must remain secret.
And finally, subclause (11) represents the fifth and final part of this bill. We're taking advantage of this opportunity to solve a problem that is very tiresome for publishers: how to prove something is published? By producing the publication. Was it really necessary to do something more? If we want to prove that something has been published, one will only have to produce it in evidence, or as a supporting document.
Currently, many lawyers still believe that they have to subpoena heads of media enterprises as businesses in order to prove that something has been published. Subclause (11), which I hope will become section 39.5, could be used to remind them.
Finally, the objective of this bill is not to provide immunity to some criminals or individuals who wish to libel someone through a journalist. This principle of anonymity of confidential sources is something that some journalists have been prepared to go to prison to defend, and will continue to be in future. Indeed, some have gone to prison for it.
I think it would offend them greatly to see that the principles that they have defended with such courage might be used by criminals to escape the punishment they deserve. I believe that my bill is clear enough, particularly as it obliges the court to assess the values at stake, which are freedom of information and the interest of the state in having knowledge about and in punishing the crimes that have been committed. However, after having discussed this with many people, I felt it would be a good idea to add a clause that clearly states that this bill does not apply... In fact, I have it here.
In fact it would read as follows: “Sections 39.1 to 39.5 would not prevent the seizure or disclosure of any communication or document prepared with a criminal offence or a fraud in mind.”
This interpretation, I am sure, will reassure the police, and will make it clear that we are not talking about a privilege and that this protection will cease when we are talking about indictable offences.
I felt it was a good idea to add a few words here and there in order to clarify the fact that it is not a case of protecting criminals. As far as sources are concerned, for example, I am talking about confidential sources. As far as the information gathered by journalists or the documents created are concerned, it is very specifically in the carrying out of their professional activities. These very short amendments will be able to reassure a lot of people.
Thank you, Mr. Chairman.