Evidence of meeting #18 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.

On the agenda

MPs speaking

Also speaking

Chief Clayton Pecknold  Deputy Chief, Central Saanich Police Service, Canadian Association of Chiefs of Police
Pierre-Paul Pichette  Assistant Director, Corporate Operations Services, City of Montreal Police Service
François Bourque  President, , Fédération professionnelle des journalistes du Québec
Jennifer Strachan  Acting Director General, Community, Contract and Aboriginal Policing, Royal Canadian Mounted Police
Nicole Dufour  Lawyer, Research and Legislation Service, Barreau du Québec
Erik Vanchestein  Lawyer, Bar Member, Barreau du Québec

4:25 p.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. Ménard.

Go ahead, Mr. Comartin.

4:25 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Bourque, does your federation have a definition that applies to its members—in other words, the journalists who are part of it?

4:25 p.m.

President, , Fédération professionnelle des journalistes du Québec

François Bourque

We have two definitions which are not contradictory. The Federation professionnelle des journalistes is made up of individual members. Therefore, people often come to us asking to become members. Our decision is based on a criterion which, without being perfect, allows us to function: does the individual draw most of his or her income from journalism? Is it the person's main occupation?

That is an operational definition as regards management of our membership. Our code of ethics also proposes the following definition: any person performing the duties of a journalist for a media organization.

I must admit, however, that the media world is undergoing significant change. A number of people at the table have already made that point. We are seeing the rapid emergence of all kinds of new media, either the Internet or other media forms, to the point where there could be some confusion as to what a journalist is or is not. We are currently giving that whole issue some thought. We are thinking that there may be a need to better define the term “journalist”. For the moment, we have been able to function perfectly well with our current definition, and we agree with the one proposed in the bill. However, some situations could be ambiguous. There are blogs that are clearly authored by journalists, whereas others are authored by members of the public.

4:25 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Are any of the bloggers members of your federation?

4:25 p.m.

President, , Fédération professionnelle des journalistes du Québec

François Bourque

Yes, absolutely. I had a blog last fall during the municipal election campaign in Quebec City. As was already pointed out, the same criteria and the same rules apply to people keeping a journal.

4:25 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

The definition of “journalist” in sub-clause 39.1(1) of the bill refers to “anyone who assists”. Could individuals that assist be members of your federation?

4:25 p.m.

President, , Fédération professionnelle des journalistes du Québec

François Bourque

Yes, absolutely. Our federation does not only accept journalists who are the salaried or unionized employees of a specific media company, but also freelance and independent journalists. They have every right to be members of our federation and are considered to be professional journalists if they draw most of their income from the profession.

4:25 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Can you refuse membership to individuals who write blogs containing pornographic or offensive material?

4:25 p.m.

President, , Fédération professionnelle des journalistes du Québec

François Bourque

I don't think members of our federation are involved in that kind of activity. The term “pornography” is not part of the criteria on which we base our decisions on a daily basis. We will not refuse memberships to someone who writes a blog, because a blog is not, in itself, inconsistent with journalistic practices. It is simply a different method of expression used to provide information or disseminate different viewpoints. A blog is not inconsistent with journalism. However, some blogs written by members of the public or certain organizations may not meet the criteria established by the profession.

4:25 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Merci.

Ms. Strachan, you are looking specifically for better definitions, in your perspective, of the “journalist”, the “source”, and I think you mentioned one other category. Have you any specific proposals as to how you would define those individuals?

4:30 p.m.

Supt Jennifer Strachan

I understand there were some amendments put forward yesterday, and I have to apologize that I haven't had the time to review those, since I had a lot of work during the day. So I can't comment on what was proposed yesterday, sir, but when I read what's in the bill that was provided to me and I read that “‘journalist’ means a 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”, I see that as being very broad. It wouldn't allow me as an investigating officer, if I was investigating a crimes against a person case where I felt that it was important for me to get the information as soon as possible...and I want to be very careful here because I believe that a majority of the journalists out there would always provide that information. I do believe that, and I've worked in various capacities, whether it be on the front line or when I did do quite a bit of work in the area of sexual exploitation on the Internet, where we relied heavily on the media to support us in getting that information out.

Our worry is that I believe, because it's so broad, some could utilize that definition to their defence. And I actually see it as a means of bringing unprofessionalism to journalists as a group of professionals.

4:30 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Let me ask Mr. Pichette.

4:30 p.m.

Conservative

The Chair Conservative Art Hanger

Mr. Comartin, I'm sorry, our time is limited.

Mr. Moore.

4:30 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Thanks, Mr. Chair.

I note, in a response to a question, that the Barreau du Québec mentioned they haven't had the opportunity to go through it clause by clause but were commenting generally on the theme of this bill.

I guess that's the problem; it's why we can't rush something like this. The words that are in this bill are powerful words. I've heard some testimony that would suggest that there's a complete vacuum now on this issue and that we are faced with the need to bring in the law, when the fact of the matter is that a long-standing balance has been established in Canada.

I think everyone around this table would agree—certainly the witnesses mentioned it, but I think every one of the members of the committee would agree—that one of the great things about our country is freedom of the press. We want to celebrate and to promote that freedom. But the thought could be out there that somehow this is the wild west when it comes to getting this information, when in fact we have achieved, right now—and it's been upheld as recently as last week—a balance in Canada that weighs those competing interests: tackling crime and also, of course, freedom of the press.

There was a recent Ontario Court of Appeal case dealing with this issue that upheld the law as it is. I should note that a member of the Canadian Association of Journalists and, as a matter of fact, a journalism professor, Professor John Miller, who wrote in The Globe and Mail, I think yesterday, says, “A closer look at the facts of this case show[s] that the judges got the balance between press freedom and crime detection just about right.”

That's a comment from a member involved in journalism. He's addressing the suggestion that journalists should have the unfettered right to protect the identity of their confidential sources, period. That has not been the common law experience, and I don't think it is in a direction we want to go in.

Her testimony today, and yesterday's, about the special privilege this would accord journalists if it were to pass as is, going beyond even what we think of with priests, with doctors, going beyond that level and according them a special status that, as drafted now, is overly broad, both the definition of “journalist” and of “source”....

I want to get some comment from you, Mr. Pecknold or Ms. Strachan, on some real-life examples of how this could impact on an investigation. I put the question yesterday of even cases involving national security. The threshold that is provided in this bill is completely different from what we have now in common law and the balance that we've achieved.

I'd ask you to comment on how, with perhaps a real-life scenario, that could be impacted here.

4:35 p.m.

Supt Jennifer Strachan

I'll make brief comments, and then I'll leave it to my cohorts here.

The first thing you often think about in this sort of information is the national security issue, and it should be of great concern to all Canadians. But I look beyond that. I look at the front-line policing perspective, which protects the rights of victims.

Again, my background is in the area of investigations in relation to sexual abuse of children on the Internet, sites such as NAMBLA, which is an organization that seeks to propagate conduct between adults and children. There are websites out there such as that. If a source provides information related to that and the investigation is of a time-sensitive nature, perhaps related to locating a child, I think it's important that the information can be gathered quickly. We see this, as you've already mentioned, existing in common law.

Again, there's a story out of New Brunswick in which a media newscaster—not utilizing a source, but you could work source into that—preparing for an interview with a tech crime person in relation to child exploitation on the Internet, did research up to the point when the interview was done and then continued to access illegal images on the Internet.

Again, that's just journalists, or in this a case a media newscaster—and I apologize if I'm bringing the two into one—but it's just not lending itself to a good definition of “journalist”. Could that be seen as an issue here?

I would give you those two examples and leave it to my colleague.

4:35 p.m.

D/Chief Clayton Pecknold

It's interesting, because to my knowledge journalism is not regulated in every province in the same way that a solicitor is. A solicitor is defined. You have to be a member of the bar. It's defined, so we know what a solicitor is.

I actually think the concern is—and our child exploitation people will tell us this—that there are websites written in such a way as to have editorials. They have papers. They are promoting the benefits of child exploitation. It's hard to understand, it's bizarre, but they're promoting it in a way that one could argue that they say they're disseminating information.

Our concern is that the way this bill is drafted, it could be used as a shield for people it was never intended for, and in many ways it colours legitimate, true journalism and brings a level of disrepute that we don't want to introduce into it.

4:35 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Do I have a little bit of time?

Yes, that example you mentioned, NAMBLA, I think that was raised yesterday also. I don't think that's where anyone around this table wants to go, but certainly we don't want to have a piece of legislation that could be interpreted in that way. My fear as well is that this is overly broad as currently written.

Could you comment a bit...and I'll leave this open to Mr. Bourque also. There has been a recent case on this dealing with the National Post. Many are commenting that there is a balance that we've achieved and it's the right balance.

Mr. Pecknold, Ms. Strachan, or Mr. Bourque, would you comment a bit on the fact that there is a law in place now and how perhaps this would change things? Because there is a test that can take place right now, there is a balance to protect journalistic sources even now. So could you comment on the balance that we've managed to achieve to this point?

4:35 p.m.

Conservative

The Chair Conservative Art Hanger

If you could make those comments in a timely fashion, we'd appreciate it.

4:35 p.m.

D/Chief Clayton Pecknold

Sure. I'll be as quick as possible.

I have a case in front of me, and there's an important part of it where the Ontario Court of Appeal, I believe, in that case restated that “a ‘privilege’ is an exception to the fundamental proposition that everyone has a general duty to give evidence relevant to a matter before the courts”, and from a starting point, that's the presumption. This bill would reverse that presumption. That's the key point. That's a major public policy shift, and we suggest it needs a wider view.

4:35 p.m.

Conservative

The Chair Conservative Art Hanger

Superintendent Strachan.

March 6th, 2008 / 4:40 p.m.

Supt Jennifer Strachan

The processes are in place. Sometimes we call upon a justice of the peace or a judge, as officials who are well trained and who have a lot of expertise, to look at both sides of the story and render a decision. As a law enforcement officer, I have been there when they haven't sided with my version of what I had put forward and the information to obtain, and at times where they have. I've always tried to respect that.

I agree with you that there is a system in place and it seems to work efficiently. Again, taking it to another extreme just opens the door for other interest groups to seek similar support.

4:40 p.m.

Conservative

The Chair Conservative Art Hanger

Monsieur Bourque.

4:40 p.m.

President, , Fédération professionnelle des journalistes du Québec

François Bourque

As I said at the outset, I am not a lawyer, nor am I an expert on legal issues. Based on my understanding and perception of the bill being debated today, what is proposed is not an extreme. On the contrary, I see this as an attempt to codify what has become a practice, as seen in certain court rulings. This bill is a fairly accurate reflection of the case law. It has the merit of clarifying these practices for some time to come and avoiding a situation where journalists would be compelled to testify or would have their journalistic materials seized in cases not deemed to be critical. This bill avoids multiple recourse to journalists as witnesses or to provide support to police carrying out investigations or to the courts.

4:40 p.m.

Conservative

The Chair Conservative Art Hanger

Go ahead, Ms. Dufour.

4:40 p.m.

Lawyer, Research and Legislation Service, Barreau du Québec

Nicole Dufour

At the risk of repeating myself, I have to say I agree with Mr. Bourque that this bill has the merit of clarifying the situation upstream and avoiding legal debates that can at times be long, laborious and costly. This is something that is very important for the proper administration of justice. This is not a step backwards. On the contrary, it clarifies things upstream, allowing all stakeholders to arrive at appropriate decisions.