Public Safety Committee on June 19th, 2017

[Voices]

Oh, oh!

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you to my colleague.

[The Chair, Liberal, Rob Oliphant]

I'll give you a minute.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough.

Senators, thanks to you and to the member for doing this. With the proliferation of information these days, it is becoming more critical to get something like this.

Senator Carignan, you said that this was very specific with respect to the protection of journalists and journalistic sources, but you made the comment that protection still exists throughout the common law. This is not the exclusive protection. Give me some examples of that protection that might otherwise exist and is not included in this bill.

[Claude Carignan]

The protection for journalists currently available is through common law. We used some of those criteria in the bill, but we raised the current level of protection by setting out a very specific procedure for the obtaining and disclosure of information.

We also reversed the burden of proof, meaning that it is up to police, believing the information to be of benefit to the investigation, to show that the information or document cannot be produced in evidence by any reasonable means other than by executing a search warrant at a journalist's office or media outlet.

Although a series of Supreme Court decisions do grant some protection, the bill clearly defines that protection in relation to the journalist. That obviously does not exclude protection for others who are not explicitly covered by the definition. In those cases, the court's decisions would be relied on for greater clarity.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Mr. Dubé, you have eight minutes.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

Senators, Mr. Deltell, thank you for being here.

I don't often do this in the presence of witnesses, but I'm going to take a moment to editorialize a bit, which may not be entirely inappropriate given what we were just talking about.

It was mentioned that we weren't able to get any witnesses from police organizations because of the short notice. That's an interesting point, because, for far too long in Canada, the balance of power has been all too often tipped in the police's favour when it comes to cases involving journalists. I think that's why we are seeing these abuses. Contrary to claims, those abuses are not limited to Montreal or Quebec police. There are cases involving the RCMP as well. Mr. Bellavance, of La Presse, among others, could speak to that.

The other thing that I think is worth pointing out is there was a piece just today where Canada has fallen another four places to number 22, after falling 10 places last year in the press freedom index, which is very edifying. Given that the U.S. and the U.K. have already had this type of journalistic shield law in place for many years, I certainly want to be on the record as saying we need to get this done as quickly as possible.

That said, I have some questions mainly for the senators, because they are the ones who heard from witnesses in the Senate on certain provisions in the bill.

Mr. Carignan, you talked a bit about a journalist being investigated in a case that does not necessarily involve a source being identified. Given what you heard from the Canadian Association of Chiefs of Police, for example, do you think the current version of the bill provides enough flexibility? In fact, it's important to make sure that the bill doesn't create a loophole that police can take advantage of to claim that they are investigating a journalist for another reason entirely—be it fraud or what have you—when they are actually trying to discover the identity of a source through the back door, if you will.

Do the police organizations and other stakeholders you heard from see the current version of the bill as appropriate in that regard?

[Claude Carignan]

Yes, of course. We took into account the briefs we received from police forces and the organizations who appeared. Their primary concern had to do with how the definition of “journalist” would be applied. That is why we relied on the feedback we received from police and the Canadian media coalition to reach a consensus on a definition specific enough for police to determine when they needed to obtain a warrant from a superior court judge, in accordance with these provisions.

Is it possible that police could reasonably and in good faith claim that they did not know a journalist was involved? Yes, that is possible. For instance, despite using reasonable means to ascertain whether the investigation involves a journalist, a police officer may not realize that a journalist is involved and thus obtain a search warrant without following the appropriate procedure. What consequences would that have? That's a situation where amendments could provide greater clarity.

No doubt, you've had some experience in dealing with police in your life. That's true for me, at least. They usually have a pretty good idea of what you're up to, before they go to your home and sit down with you.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I don't mean to cut you off, but I only have so much time. I get just one turn.

I wanted to discuss clause 2, which seeks to add paragraph 39.1(2), known as an override provision, to the Canada Evidence Act. The provision reads as follows:

(2) This section applies despite any other provision of this Act or any other Act of Parliament.

I'd actually like to hear your thoughts on the importance of the provision. When an act of terrorism, some form of violence, or another crisis occurs in any country, people feel the need for heightened security measures. I'm a bit biased, but that's what I observed during the debate on Bill C-51. The October crisis, in Quebec, comes to mind as well.

Do you think this provision is important to make sure that, in such situations, national security cannot be used as an excuse to undermine freedom of the press?

I'd like to hear all of your opinions on that, if possible.

[Claude Carignan]

I'll give you a quick answer.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Of course.

[Claude Carignan]

Yes, I included it because I think it's an important provision. Is it essential? Could it have unintended consequences? Perhaps. The idea is to show how important it is to protect journalistic sources and to ensure that in a very specific way.

However, the rule of interpretation stipulates that specific provisions override general ones. Is that adequate? Perhaps, but the idea behind the bill is to send a strong message about the protection of journalistic sources.

[André Pratte]

I would say the same thing. With this bill, I think we have an important first step. It is often said that we should not throw out the good in pursuit of the perfect, so I think we need to look at what we can achieve today without necessarily trying to get it perfect. We also need to take into account any consequences that conflict with what we are trying to achieve.

Personally, I think we've already laid some crucial groundwork with this bill. I wouldn't want to lose that because we were hell-bent on getting everything right.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

I would refer to two cases.

First, I would point to what Patrick Lagacé, himself, said a few weeks ago: it may be appropriate in certain situations to spy on or wiretap a journalist. In other words, it comes down to pure common sense.

As a former journalist, the example I always give is this. If, on June 5, 1944, I had found out that something was going to happen the next day in Normandy, I never would have reported on it, because I would've had the sense not to.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you.

Mr. Pratte, I want to pick up on what you said. I'm not sure whether your colleagues agree, but you rightly called this measure a first step. Clearly, a tremendous amount of work is necessary in order to flesh out the bill in a way that allows journalists to do their job.

Would you agree with that observation?

[André Pratte]

Are you referring to the fact that it's a first step and that there is still a long way to go?

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Yes.

[André Pratte]

There is no doubt about that.

We need to test out the measure first to see how it will work. It establishes many parameters, which judges will have to interpret. I do think, though, that those parameters are extremely sound and that they should hold water come what may.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I'm almost out of time, and I have one last comment.

[André Pratte]

Go ahead.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

When you compare Canada with the United States or the United Kingdom, we do, after all, have a fair bit of ground to make up in terms of shield laws.

[Claude Carignan]

There is no denying that.

To use someone else's words, I think we are the dunces when it comes to protecting journalistic sources. I think this bill will propel us into the big leagues. It's important to keep the Constitution in mind; we are applying the parameters of constitutional law as well.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

I owe the Liberals about eight and a half minutes. I understand that two of you are sharing, Mr. Spengemann and Mr. Di Iorio, so you get four minutes and 15 seconds each.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

That's very kind. Thank you, Mr. Chair.

I would like to thank all three of you for your championship of this bill and for bringing it to us. It's a very important subject.

Senator Carignan, you said it very well, that the profession of journalism is a pillar of our democracy. It's an institution that very much falls into the fabric of Canada's democracy, and yet there are challenges. It's a complex subject. It's as much about the bill that's before us today as it is about the financial aspects of the profession, the financial challenges, the structural changes, and the employment relationship that journalists face today. The media environment is transforming, with so much information now making its way through social media to us.

I also want to put it to you that there is a prospect of people using the vehicle of journalism to do us harm. I sit on the defence committee, in addition to this one, and the whole paradigm of fake news and intentional misleading through journalistic channels is something we need to take very seriously. I want to echo my colleague Pam Damoff's concerns that we do not have representatives from the police forces in front of us this afternoon, even though we have a written brief.

The subject matter is complex. In addition to having the aspiration of being expedient with this bill, the committee also needs to be mindful of the various facets and aspects of this important piece of legislation.

Senator Pratte, I would like to ask you to give to the committee, and also Canadians, your snapshot of the state of the profession as it exists in 2017, and how you see it evolving over a short-term horizon, say, the next five years. What is journalism all about these days? What does the committee need to be mindful of when we talk about a bill such as this one, even though this might be only the first step, as my colleague just pointed out?