Public Safety Committee on June 19th, 2017

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I will call to order this 71st meeting of the public safety and national security committee. Welcome to everyone.

Welcome, Mr. Nicholson and Ms. Gallant. It's good to have you with us.

Pursuant to the order of reference of Friday, June 9, which was 10 days ago, our topic for today is Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).

We will have two panels of witnesses. The first panel will be the sponsor of the bill in the House, the originator of the bill in the Senate, and a collaborator on that bill. Our second panel will be members from the Canadian Media Coalition. I just heard from the clerk that Mr. Tom Henheffer, the executive director of Canadian Journalists for Free Expression, is delayed in transit, unfortunately. There have been airplane cancellations, so it is unlikely that he'll be with us today.

I also want to note for the committee that we attempted to get witnesses from the RCMP, the OPP, and the Canadian Association of Chiefs of Police. However, due to short notice as the principal reason, they're not able to be with us today. The Association of Chiefs of Police did submit a written brief. It is a fuller brief than what they were able to present at the Senate hearings on this bill, so I would commend it to your attention as well.

We'll begin the first panel with Senator Carignan, Senator Pratte, and Monsieur Deltell. I understand that we can expect the bells to ring at some point for a House of Commons vote. At that point I will seek unanimous consent to consider going a little longer. We'll just see where we are when the bells ring.

Who will begin?

Monsieur Carignan.

[Claude Carignan, Senator, Quebec (Mille Isles), C]

Yes, I can start. Thank you.

Mr. Chair, members of the Standing Committee on Public Safety and National Security, I would like to thank you for agreeing to study Bill S-231 so quickly.

The bill addresses a fundamental issue, freedom of the press, a pillar of our democracy safeguarded by section 2 of the Canadian Charter of Rights and Freedoms. As my colleagues will tell you, I care deeply about the Canadian values that the charter embodies.

As a lawyer, a parliamentarian, and an engaged citizen, I was astounded by the revelations this past fall that journalists were being spied on, so I decided to do something about it by introducing Bill S-231. It seeks to plug a legislative hole, and because of that hole, our current rules are completely out of step with what is expected of us, as a developed country ruled by the highest democratic standards.

The tangible benefits of this bill are many.

First, Bill S-231 recognizes the fundamental role of journalists in our democracy; protects the privilege of journalistic sources' secrecy, which legislation has yet to explicitly acknowledge; and seeks to protect whistle-blowers. Once the bill is passed, only a judge of a superior court—in Quebec, a Quebec court judge within the meaning of section 552—may issue a search warrant relating to journalists.

Immediately upon execution of a duly authorized warrant, the information collected will be sealed by the court and none of the parties is allowed to access the content without the judge's permission.

An officer wishing to consult sealed information relating to a journalist must send the journalist and media outlet a notice informing them that they wish to do so. The journalist and media outlet will have 10 days to oppose the officer's request for disclosure if they believe the information could likely identify an anonymous journalistic source. If the journalist objects to the disclosure, the onus is on the officer making the request to show that the information is crucial to further the investigation. The burden of proof is thus reversed.

An objection may be raised before any court or federally regulated body. The organization or tribunal may raise an objection on its own initiative. Bill S-231 protects the rights of all parties. It enables journalists to protect the identity of their sources and police authorities to complete their investigations. Finally, this act will put an end to potential fishing expeditions or source hunts.

In closing, I will say this: the media play an essential role in disseminating information and sparking public debate on important issues. Without journalistic sources and whistle-blowers, journalists could no longer perform their essential role in our democracy. Canadians, deprived of their fundamental right to be informed, would be the big losers. Those who abuse their power or misuse public funds would continue to get away with it, to the detriment of all Canadians.

It is up to us, as parliamentarians, to establish the necessary safeguards to protect journalistic sources and thus preserve freedom of the press and the public's right to be informed.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

It is now Senator Pratte's turn. You have five minutes.

[André Pratte, Senator, Quebec (De Salaberry), Independent Senators Group]

Thank you, Chair.

“Democracy dies in darkness”: this has been The Washington Post's slogan for a few months now. Like all slogans, it does not really need an explanation. It says it all. Without the spotlight shone by the media on public and private institutions, on those who govern us, citizens lack information and are therefore not able to properly play their role. Democracy collapses.

Unfortunately, even major media outlets, those who have the most resources in terms of investigative reporting, those who are equipped with the most powerful spotlights, can't see everything. You first have to know where to look. Then there are always the shadows, the places where incompetent or dishonest people hide to do their dirty work.

To spot these shadows and bring them to light, journalists need help. Let's call them “lamplighters”, the people inside who secretly light a candle that pierces the darkness and alerts the media, telling them where to turn their spotlights. These lamplighters are the sources. Because they betray the incompetents and the cheats, sources often take great risks. If they're discovered, they may lose their jobs. The punishment may be even heavier if a criminal organization is involved.

Journalists' sources must therefore be protected. That means journalists must be able to keep their sources' identities confidential, except in very special circumstances, even in a court of law and even in a police investigation. This is the only way journalists can reassure their sources and get them to come forward.

Canada does not have a shield law specifically protecting journalistic sources. The recent events in Quebec, involving journalists who were the targets of widespread police surveillance, are troubling not just for journalists, but also and above all, for their sources and society as a whole. If sources are not assured of confidentiality when coming forward and revealing their story to someone in the media, they will remain silent, and if that happens, darkness falls.

What happened shows that existing legislation is inadequate to protect journalistic sources. It is too easy to obtain warrants for surveillance. The case law would benefit from clarity around the protection of the identity of sources as regards the courts, and that is what Bill S-231 seeks to do.

I know that here, on the Hill, we often criticize the media and journalists, but we must take great care not to forget the essential role they play in our democracy. Of course, like those in every other occupation, some journalists are better than others. Naturally, they are highly critical of the work parliamentarians do, but thank goodness for that, because without their scrutiny, who would keep politicians in check? It goes without saying that they are always on the lookout for things that go wrong, and that can be very frustrating. If they weren't, however, who would let citizens know that all wasn't right with the government?

Warts and all, the media play a fundamental role in our democracy. Without confidential sources, they could not play that role. Let me insist on this: Bill S-231 aims to protect not journalists but their sources. They are the ones who need protection, because they are the ones who risk their friendships, and sometimes their families and their jobs, because they feel duty bound to inform Canadians of what they know.

Passing Bill S-231 would be a historic step forward for freedom of the press in Canada, in fact the most significant advance in decades. At a time when south of us the press has been attacked in a way it has rarely been attacked before, Canada would send a powerful message on the importance it attaches to this fundamental right guaranteed by our Charter of Rights and Freedoms.

More concretely, journalists' sources, those courageous and lonely lamplighters, would finally be protected for the greater good of Canadian democracy. The flame of a simple candle is fragile, but as long as it is protected from the storm and extinguishers, it is enough to make light, and under the light, democracy shines.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you, Senator Pratte.

Mr. Deltell, the floor is yours.

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

Thank you, Mr. Chair.

What a pleasure to be here with you again, a year after our time together on the Special Joint Committee on Physician-Assisted Dying.

Colleagues, good afternoon and welcome.

I am very honoured and proud to be appearing before you today as the member sponsoring the bill in the House of Commons, as well as a former journalist.

Mr. Chair, let me pay my respects to our colleagues from the Senate: Senator Claude Carignan, who worked so hard, so fast, and so well, with the support of colleagues like Hon. André Pratte, and all the other people in the Senate who worked to table this important piece of legislation.

As far as I am concerned, this bill is very correct, because it respects every aspect of our society.

To begin with, Bill S-231 correctly defines what a journalist is, in my view. The underlying principle is the protection of the journalistic source, not the journalist. That may seem like an obvious distinction because journalists make mistakes, like everyone else, but sources wishing to come forward with information must be protected. That is what this bill seeks to achieve.

One of the bill's many merits is the fact that, going forward, only superior court judges would be allowed to determine whether investigations pursuant to search warrants could proceed. Experience has unfortunately shown that they were sometimes issued too hastily by peace officers. In the case of Montreal's police force, the SPVM, such requests were granted 98% of the time.

The bill also reverses the burden of proof and ensures that the execution of a warrant relating to a journalist is truly the last resort.

A few of my colleagues may recall that in Quebec, in the last month, it was a real turmoil situation for journalists.

This past October, we found out that journalist Patrick Lagacé had been the target of 24 surveillance warrants by police in recent years.

To give you an idea of the type of individual we are talking about, I will tell you that Mr. Lagacé is a seasoned journalist with over 20 years of experience and recognized by all Quebecers as an established journalist. If he were in the military, he would be active in all three forces. As a journalist, he works in television, print, and radio, and has a daily column. He is a seasoned journalist who was put under police surveillance, further to a warrant, 24 times, and that obviously raised considerable concern in Quebec.

More revelations followed. It came out that some 15 journalists in Quebec had also been put under police surveillance; they were all very experienced and worked mainly in investigative journalism. Patrick Lagacé, Vincent Larouche, Marie-Maude Denis, Alain Gravel, Isabelle Richer, Éric Thibault, Denis Lessard, André Cédilot, Nicolas Saillant, Félix Séguin, Monic Néron, Joël-Denis Bellavance, Gilles Toupin, Daniel Renaud, and Fabrice de Pierrebourg had all been the subject of a police investigation by the Sûreté du Québec, SPVM, or RCMP.

We see Bill S-231 as a fair and balanced response to an intolerable situation.

In my final notes, Mr. Chair, let me just remind you that 45 years and one day ago, a newspaper named The Washington Post published a small article about a burglary that happened in the Democratic Party headquarters in Washington. The Democratic Party headquarters was situated in a building named Watergate. Two years later, all the world recognized what happened there, and it also recognized the importance of whistle-blowers. This is what this bill wants to protect.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Deltell.

Ms. Damoff, you can start off the first round. You have seven minutes.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

First, I would like to thank all three of you for being here today, and for your leadership in bringing this important legislation through the Senate and to us here in the House.

I do have some questions. You've had the benefit of far more time to study the bill in the Senate than we've had here, obviously. This is our first meeting on it. When I read the definition of “journalist”, it strikes me that in some ways it is somewhat backwards-looking. Journalism is certainly changing. We are seeing alternate forms of journalism, such as podcasts on social media and blogs. Having said that, I also recognize the importance of defining what a journalist is, to ensure that this term is not used to hide organized crime or terrorism. Finding that balance is no doubt challenging.

I'm just wondering if you have any suggestions that we might be able to make that would allow us to maintain the public safety aspect of it, while also being a little more forward-looking in terms of the definition of “journalist”. If you think this definition covers it all, I'd be happy to hear that as well.

[Claude Carignan]

Thank you for your question.

Initially, the definition was much broader. Both the coalition of Canadian media and police forces thought the definition was too broad, and could include bloggers working for free in their basements. That was problematic for police officers in terms of when the legislation would apply. They weren't quite sure when they would need to request a search warrant. They could not guess that a journalist was involved, even using reasonable means to verify the person's identity. Police organizations therefore had concerns and feedback around the application of the legislation.

In addition, some media outlets wanted to make sure it extended protection to journalists who earned their living working for a media organization, be it a weekly local paper or a web-based publication, but at a certain professional level. They wanted to make sure that not just anyone could claim protection of sources, so they proposed a definition of what a journalist was. There was consensus on the definition, which had the backing of such associations as the Quebec Press Council, I believe. I was in favour of their request.

I have here a passage from the Supreme Court's ruling in R. v. National Post, which establishes limits on what constitutes a journalist.

It reads as follows:

To throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.

That statement refers to the weight given to a blogger's source as compared with a professional journalist's source. Even the Supreme Court saw a problem with that, so that is why I agreed to make the necessary corrections to the bill.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

To be honest with you, one of the concerns I have is that we don't have anyone from the police side to testify before us today. They weren't available. We don't have the benefit of their testimony as we're looking at this.

Did you consult with any of the ethnic media, for example, OMNI TV, or some of the more non-traditional media, in particular the ethnic media, which we have a number of? OMNI TV is a much larger one, but there are several smaller newspapers.

[Claude Carignan]

We heard from associations who represented all journalists, including those in local and ethnic media. The definition obviously refers to a journalist who is being paid. That can include freelance journalists, so the scope of the bill is very broad.

I don't think it excludes basic constitutional protections, which exist in common law as well, in other situations that might have similar elements. The Criminal Code, as amended, would specifically extend protection to journalistic sources but would not necessarily exclude the common law dimension for others.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

You mentioned one broad organization that represents a number of journalists, but there isn't one specific organization that represents all journalists. I mean we don't have the Canadian Bar Association, for example, or we don't have—

I can think of, for example, in my riding a woman who runs an Indian online TV show. She does take advertising, so there is compensation involved, but I'm wondering if some of the smaller media like that have been part of the discussion on this bill, as opposed to the larger media outlets and journalists.

[Claude Carignan]

The journalist association, whose name escapes me right now, would probably be the one that best represents journalists in small local and ethnic media. Its representatives gave us a clear sense of the position of small media.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

I think that's my time.

[The Chair, Liberal, Rob Oliphant]

Your time is indeed up.

Ms. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Chairman, I'll be sharing my time with Mr. Nicholson.

I'd like to start by commending Mr. Deltell and senators Carignan and Pratte for their work in protecting independent and impartial journalism in Canada.

I agree with what you said in the House, Mr. Deltell, that the passage of the bill is a good day for democracy and freedom of the press, but I want to focus on freedom of the press for a moment before we get into the nitty-gritty of the bill. As a former journalist yourself, can you comment on how the $350-million slush fund that the government is proposing would impact the freedom of the press?

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

I think there was a huge debate in the last general election, and we all recognize that all the parties had straight positions.

It's very touchy when we talk about funding Radio-Canada/CBC because, as we know, this is a press group, and a press group shall be independent from any political power.

So the responsibility belongs in the hands of all journalists, and when I talk about hands, I talk about the fingers, the ones that hold the pencil, the ones that hone the machine, the ones that write or say something about the actual government. You always have to remember that when you work at CBC—during my 20-year career, I worked there for two years, and I know what I'm talking about—you have to think about the interests of the people, period.

You never have to add any political agenda, but for sure, when you see a huge debate surrounding the financing of this public institution—because it is a public institution—the responsibility belongs to every journalist to be frank, to be honest, to be equal, and to be non-partisan.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I'd like to go to section 488.02 of the Criminal Code. The bill refers to documents and says:

Any document obtained pursuant to a warrant, authorization or order issued under subsection 488.01(3) is to be placed in a packet and sealed by the court

How is it that the authorities come to acquire a document in the first place? How do they know a document exists unless the article which the journalist has written refers specifically to it?

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

That's quite a good question, Madam Gallant. I do appreciate that. I will start an answer, but I'm sure my colleague, Senator Carignan, will be more accurate than I am.

The bill is designed to protect the whistle-blower but to let the journalists do their job, but if the policeman is going to make an inquiry regarding a journalist, then, first, it must be the last step of the inquiry, and second, he has to convince a judge, a superior court judge, not a juge de paix, as we have now in Quebec. As I said in my presentation, in the whole administration—if we pass the bill—in 98% of the inquiries made by the SPVM, which is the municipal police in Montreal, they get it from a juge de la paix.

This is why we made it tougher for a policeman to make inquiries about a journalist, to be sure, first of all, that this is the last step of his job, and second, that it has been approved by a superior court.

This is my personal and first-draft answer, but I'm sure Senator Carignan will be more precise.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I'm looking for the types of documents that would be used to justify the warrant.

[Claude Carignan]

The definition of “document” is the same one that appears in the Criminal Code. I don't know the exact section, but it's the definition used in the Criminal Code. “Document” refers to any evidence or piece of evidence on any medium, computer-based or otherwise, on which data is registered or marked, and that document is sealed. If the document is a hard copy, it is placed in a packet and sealed. The same goes for a computer-based device. What matters is that the item is sealed to prevent police or the individuals executing the warrant from accessing it before the journalist or media outlet has been notified. The journalist or media outlet could then advise the individuals seeking the information that the computer or hard drive contains a multitude of other documents that have nothing to do with the case in question but that could be considered information likely to identify journalistic sources.

For a model, I relied heavily on the procedure used in the case of law firms. When a search warrant is executed on a lawyer's office, the information is protected by solicitor-client privilege and steps are taken to ensure that privilege is not violated.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Okay. Here's what I was trying to get at. How are the authorities getting the documentation in the first place to get a warrant issued if they haven't been doing something they shouldn't have been doing in terms of knowing that a journalist has something?

[Claude Carignan]

To obtain a warrant, police must have reasonable and probable cause to believe that the office or location in question contains information likely to prove that a crime was committed. Those are the ground rules.

[The Chair, Liberal, Rob Oliphant]

You have 20 seconds.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much. That's very generous.