Public Safety Committee on June 19th, 2017

[Sébastien Pierre-Roy]

I don't want to take up all the committee's time. However, we must combine the Lessard decision with the National Post decision for a complete picture of what a police officer can do when looking for information from any media. The essential role of the approach with the media is one of the criteria in the Lessard decision.

I think this bill consolidates the jurisprudence of the past 25 years for searches of media premises. The National Post and The Globe and Mail cases aren't the only ones reflected in the bill. The Lessard decision is also included.

I'll answer a question you didn't ask, but it may help you understand. The National Post decision can be applied concretely only if the police officer arrives at the media premises with a warrant and says that he wants to seize the computers. At that point, the journalist can appear before a judge.

He can argue the Wigmore criteria to try to have the privilege recognized, but what is happening right now is that police officers are obtaining phone registers without the journalist's knowing. He will learn about it five years later, when all the names of the sources are disclosed. R. v. National Post cannot be applied, and that's the main problem this bill is fixing.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

I imagine that you're referring to the Lagacé case, among others.

[Sébastien Pierre-Roy]

All the recent cases involve orders issued secretly.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chair. You've been generous.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Arseneault.

We'll continue with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

I think there's probably a consensus that the bill's not perfect, but we have to move forward on this or we basically will have nothing.

I have a question that I was going to ask the previous witnesses, and I'll probably ask you, Ms. McGuire. We've heard that Canada is far behind a lot of countries: the United States, Britain, others. Would this bill in its present form basically make us consistent with the protections that are in place in the United Kingdom and the United States, or would you be in a position to answer that?

[Jennifer McGuire]

I'll defer to Sébastien on the benchmarks worldwide, but it's our view and that of the coalition overall that this represents a significant step forward in this country, both in the level of oversight in terms of the judicial intervention and in reframing the process for access to source information.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm pleased to hear that, because it seems to me that the longer we go without something specific in writing, the more difficult it will become in the future, for some of the reasons Monsieur Pierre-Roy mentioned.

Monsieur Cormier, you mentioned something with respect to one of the sections in the bill, specifically the section that has an amendment for dealing with the commission of an offence by a journalist. I just want to make sure that I understand this. Are you satisfied that the amendment provided by the government is good?

I'll get to you on this one, Mr. Henheffer, in a second.

What was your comment with respect to the amendment? Was it that it is as good as it could be, or not good, or does not go far enough?

[Michel Cormier]

We want to make sure that a police officer cannot just go to the judge and argue that just because they believe a journalist has participated in a crime committed by a source that it's enough to have a mandate of inquiry. We would rather have more safeguards in the process and make the role of the judge, in layman's terms, stronger. Maybe Sébastien can argue the finer points of the law on this, but basically that's the gist of it.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough. I suppose one of the safeguards we heard is that these warrants will be in the hands of a superior court judge, which is one more level of responsibility.

Mr. Henheffer, you mentioned that in your comments, and also that you may have your own amendment with respect to the section. I believe this is the section you're talking about, the one where there's a suspicion of an offence by a journalist. Is that the one that you said you have a specific amendment for?

[Tom Henheffer]

Yes. We certainly feel that if the police suspect that a journalist has actually committed a crime this type of immunity would not apply in that case. But, again, to echo what the Media Coalition is saying, the fact that there may be suspicion that a crime has been committed, that a source may have committed the crime, having that in there can completely invalidate the strength of the bill if there's no protection just because a source has potentially committed a crime.

[Rob Nicholson, Conservative, Niagara Falls, ON]

My colleagues and I are new to this committee. This is my first time on this committee. You may have distributed that amendment. Do we have the amendment, Mr. Henheffer, with respect to that?

[Tom Henheffer]

We haven't supplied an entire amendment. We deferred to the Media Coalition in that regard.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough, then.

Thank you. Those are my questions, Mr. Chair.

[The Chair, Liberal, Rob Oliphant]

Okay.

Mr. Dubé.

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

Thank you, Mr. Chair.

I'll start with you, Mr. Henheffer, but I'll hear the others as well on this idea of the definition of a “journalist”. Obviously, there's an evolving media landscape, with freelancers who have different tools at their disposal to protect themselves. For example, I say this with all due respect, the journalist working for a larger media conglomerate probably has more legal tools at their disposal to protect themselves in court. I just want to hear from you a bit more on that. For example, there have been many intervenors in the Ben Makuch case because they have been required, given that he wasn't at one point able to muster the appropriate resources to defend himself. How important is that?

[Tom Henheffer]

I think that really is crucial. Again, I believe that the bill in its present form is still worth passing. I would strongly recommend that the committee adopt this amendment by Mr. Dubé.

A lot of times I've heard people say that just because someone tweets doesn't mean they should get protection of it. Just because someone is a blogger doesn't mean they're necessarily a journalist simply because they maintain a blog, and that they should not get this protection. I have more faith in the judges in this country to be able to distinguish between someone who has tweeted occasionally or had a blog or something like that who would claim these decisions. I believe that the judges in our country are well enough trained to be able to tell the difference.

The fact is the nature of journalism has changed. Many journalists now are freelancers. They are not getting paid for it as their primary job. A lot of journalists get 60% to 75% of their income from writing technical manuals or speeches or things like that and the rest of their journalism is a passion project.

There are organizations out there like Discourse Media on the west coast, the Halifax Examiner on the east coast, VICE News in Toronto, and CANADALAND, which everyone is familiar with, that rely on freelancers, many of whom might only write one or two stories for them a year, but which could have extremely important impacts on Canada. Often, depending on the type of outlook and the stories they're working on, they will have confidential sources whom they need to speak to in order to get this information, and yet they would not be covered by this very narrow definition of a journalist. That is why we feel that it needs to be somewhat broader so that it is left up to a judge, and a judge can make the decision as to whether someone should fall under this protection.

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

If I may, before we hear from Ms. McGuire, I think that CANADALAND—and I don't want to get into the weeds, because journalists sometimes will argue who broke the story first and so forth—is a great example, because they had a large role to play in the Jian Ghomeshi affair.

[Tom Henheffer]

Absolutely. I'm in a very privileged position in my job, where I get to know the majority of journalists, at least in Toronto. So I know a lot of people who write for them. One of their main freelancers at the moment is a guy whose main career was as a political staffer and then he decided to gradually go into journalism. He has broken some very interesting stories on the rise of the alt-right in Canada and some dangerous extremist groups on that side.

He would not have been able to talk to those people had they feared that their conversations were being spied on, because all of the sources are confidential. Again, he would not fit into the definition of a journalist.

CANADALAND is just one example. There are many others—

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

It's tangible for folks.

[Tom Henheffer]

Including the CBC, which also uses freelancers.

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

Ms. McGuire.

[Jennifer McGuire]

Freelancers connected to the CBC would be considered part of the CBC for the nature of this exercise.

I hear the point, but I also think the reality is that a lot of the investigative journalism in this country would be captured by this bill, and for the greater good, it's a really positive step forward.

[Tom Henheffer]

I encourage that.

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

I have a question that I raised with the first panel. If you go to clause 2 of the bill, it reads in part, “This section applies despite any other provision of this Act or any other Act of Parliament”.

The question I posed to the last panel was to nail down the importance of that, given that when we are in periods of crisis or when there is a terrorist attack or some kind of national disaster or something like the October Crisis in Quebec, when these crackdowns happen, journalists are often collateral damage. How important is a piece like that in a bill like this to make sure there aren't any loopholes that allow a crackdown later on from other legislation or something like Bill C-51, for example?