Justice Committee on March 5th, 2008

[The Chair, Conservative, Art Hanger]

Thank you, sir. You have the floor.

[Joshua Hawkes]

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.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Hawkes.

From the Department of Justice, will it be Ms. Markham who will present?

You have the floor.

[Karen Markham, Counsel, Criminal Law Policy Section, Department of Justice]

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.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Markham.

Ms. Desjardins, do you have a presentation?

[Josée Desjardins, General Counsel and Director, National Security Group, Department of Justice]

I have a very few words.

[The Chair, Conservative, Art Hanger]

That's fine. You have the floor, then.

[Josée Desjardins]

Thank you for hearing our concerns.

I am a colleague of Karen Markham. I will not repeat what my colleague has said, but there are a few points I would like to raise with you.

Of particular concern to me, as the director of the national security group, is what we call the override provision--as mentioned by Karen--and the provision dealing with the other information that may be in the possession of the journalist.

The override appears to exclude the application of sections 37, 38, and 39 of the Canada Evidence Act. Those provisions are there to protect sensitive information. In particular, I simply want to briefly explain the process of protecting sensitive information under section 38 and to identify what appears to be a potential conflict with what is in the bill and what is currently in the Canada Evidence Act.

Essentially, section 38 of the Canada Evidence Act is a mechanism in place to ensure that sensitive information of the government is protected in the public interest in the context of proceedings. So the regime under section 38 will be triggered in the context of proceedings that, as Karen explained, include administrative tribunals, civil proceedings, and criminal proceedings when potentially injurious information or sensitive information may be disclosed. These are two terms that are defined in the act to mean information that would cause injury to national security, national defence, or international relations, or information that the government is making efforts to keep protected.

So essentially, in the context of a proceeding, if a participant knows that sensitive information may be disclosed in the course of the proceeding, the participant has an obligation to give a notice to the Attorney General of Canada.

The effect of the notice is to prevent the disclosure of the sensitive information, and it forces the Attorney General of Canada to look at the information, consult, and to make a decision as to whether to authorize disclosure of the sensitive information or to maintain the prohibition. This decision is also reviewable by the Federal Court through designated judges.

Both the Attorney General of Canada and the Federal Court will apply the same test: whether the information is relevant in the proceeding and whether the disclosure of the information will be injurious to national security, international relations, or national defence. Then they will do a public interest balance, which will assess what is the greater public interest in the context of the proceeding: to maintain the prohibition or disclose the information. Again, the Federal Court judge can issue an order that provides for the disclosure of all or some of the information or, in some instances, will issue a summary.

The regime in section 38, as I indicated, applies to all proceedings except those that are excluded through a schedule in the act. The proceedings that are excluded from this regime are those that already have a mechanism in place to ensure that the sensitive information remains protected in the public interest.

Where I see a potential conflict, with greatest respect to Monsieur Ménard, is the override, and in particular subsection (7), which states “A journalist is required to disclose information or a record that has not been published”, but “is of vital importance and cannot be produced in evidence by any other means.” The scenario that comes to mind is that a journalist is in the context of a proceeding provided under section 39.1; therefore, he is a participant. The journalist knows what type of information he received, so he would be aware whether the information is sensitive or not. Though some of it may have already been published, we would not necessarily know if there is still more information that can be published at a later date.

So at the outset, the journalist is under an obligation to give a notice, and that will make the publication of that information prohibited. However, he may, on the other hand, be required to disclose the information if it is of vital importance.

There appears to be a conflict between his obligation to give notice and prevent the disclosure of the sensitive information and, on the other hand, to comply with a possible order of disclosure.

Also, as I indicated, the test applied by the Attorney General of Canada and the Federal Court appears to be different from the one mentioned here. I will not repeat them, but my colleague did indicate some of the criteria applicable in a national security or Canada Evidence Act application.

Again, there appears to be a conflict between the current section 38 regime and the legal test and whether that is overridden by this.

The only issue I wanted to raise is the possible risk of a vacuum. If journalists are compelled to and disclose information of vital importance, they may be ordered to disclose yet more sensitive information than they already have.

As a final point, Monsieur Ménard mentioned the Charkaoui case in Montreal. In that case, the journalists involved, Monsieur Bellavance and his colleague, had published an article in La Presse and Le Droit in which they cited a top-secret document that appeared to have originated from the Canadian Security Intelligence Service. Monsieur Charkaoui had sought access to that document by serving a subpoena to the journalist, asking him to appear and to bring the documents with him. Unbeknownst to anybody was what was in that document above and beyond the newspaper article. The Attorney General was a participant in that case and gave notice to the AG, two different groups of the Attorney General of Canada. The intent of that notice was to prevent the journalist from further disclosing information until a decision was made.

As it turned out, Monsieur le juge Noël was of the view that he could deal with that issue under section 78 of the Immigration Act, which is one that has a regime to protect sensitive information. In the end, Monsieur le juge Noël did not disclose the document but rather issued a summary, a power he has to ensure that Mr. Charkaoui could pursue his challenge on the one hand. The other public interest was to ensure the sensitive information in the document was maintained and protected, to ensure the two public interests were maintained.

That's an example of how it happened in the past. I wanted to raise the possible conflict between the current bill and the current section 38.

[The Chair, Conservative, Art Hanger]

Thank you very much, Ms. Desjardins.

Lieutenant-Colonel Jill Wry, please, you have the floor.

[Lieutenant-Colonel Jill Wry, Director of Law, Military Justice, Policy and Research, Office of the Judge Advocate General, Department of National Defence]

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.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you.

A point of order, Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Before we begin this dialogue, can we just clarify whether the first witness was speaking as an individual or on behalf of the Government of Alberta? It wasn't clear, and I'd like us to know this before engaging in a discussion. He claimed to have been delegated by his department, but we're told that he was appearing as an individual.

[The Chair, Conservative, Art Hanger]

Mr. Hawkes.

[Joshua Hawkes]

I'll try to clarify. I have been requested by my department to appear, so the views that I have expressed are in fact the views of the criminal justice division of Alberta Justice.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Hawkes.

Colleagues, there is very little time between now and the bell. However, we will move matters along. I may cut you short on your question time, because I want to give as many people as I can the opportunity to ask a question.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

A big concern, I guess, is the override in proposed subsection 39.1(2). When you bring in a small private member's bill, it's supposed to do something small. But here you override all the other laws. I'm not a lawyer, but to me it seems strange. The only other such case I remember is the Constitution. Of course, the bill of rights overrides everything. Then maybe there's also a non-derogation clause, something related to aboriginal rights.

Is this a little unusual, Mr. Hawkes and Ms. Markham?

[Joshua Hawkes]

I believe it is, and it may underscore the need for broader consultation. There may yet be further unintended consequences than the few that we've been able to identify in the short time we have here. The scope of the override is, in my submission, very unusual.

[The Chair, Conservative, Art Hanger]

Ms. Markham.

[Karen Markham]

I would tend to agree that the scope would be unusual. We sometimes see provisions that say “notwithstanding” a specific subsection or paragraph, so I would agree with Mr. Hawkes.

[Larry Bagnell, Liberal, Yukon, YT]

Ms. Markham, you spoke about other proceedings not covered by the Canada Evidence Act. Can you explain that a bit?

[Karen Markham]

The Canada Evidence Act applies to all different types of federal proceedings, including criminal prosecutions and civil proceedings involving the federal government, commissions of inquiry, and proceedings before federal administrative tribunals. As Colonel Wry was saying, this is a much broader type of proceeding than those governed strictly by the Criminal Code.

[Larry Bagnell, Liberal, Yukon, YT]

The bill would allow this protection in a whole bunch of other forums that it didn't allow before?

[Karen Markham]

One could argue that the effect might be to cause some confusion about whether the bill was intended to cover all federal proceedings when some of the provisions are much more specific to criminal proceedings.

[Larry Bagnell, Liberal, Yukon, YT]

Proposed paragraph 39.1(5)(a) states as one of the conditions that “the person has done everything in the person’s power to discover the source of the information” . Shouldn't it be discovering the information rather than the source? Are you supposed to hire a private detective to follow a journalist around to see who they're talking to? That was my question about that.

My other one is on—

[The Chair, Conservative, Art Hanger]

Mr. Bagnell, I think one question will be enough, given our time situation.

Would you answer Mr. Bagnell, please?