Public Safety Committee on June 19th, 2017

[The Chair, Liberal, Rob Oliphant]

Okay. Very good.

Thanks to our panel. That was very good. I think we could go on quite a bit longer.

I know that members were waiting for a vote. There is a concurrence motion in the House that will be debated for some time, so that's why there were no bells for a vote. That's also been fortuitous, because Mr. Henheffer is en route from the airport. It's serendipitous for us in regard to being able to continue with our second panel.

I'm going to suggest that we suspend for five minutes. Mr. Henheffer will arrive, and then we'll begin with our second panel. Thank you.

[The Chair, Liberal, Rob Oliphant]

I'll begin by thanking our witnesses from the Canadian Media Coalition and Canadian Journalists for Free Expression for being here. We'll be able to go for maybe even up to an hour in this panel, if you're good for that. I believe there are a lot of questions from the members.

We've agreed on five minutes from each of the two groups. I'll be a little liberal with that—small-l liberal.

We'll begin with the media coalition.

[Jennifer McGuire, General Manager and Editor in Chief, CBC News, Canadian Broadcasting Corporation, Canadian Media Coalition]

Mr. Chair and members of the committee, good afternoon.

My name is Jennifer McGuire. I'm the general manager and editor-in-chief for CBC News. I wish to thank all of you for this opportunity to address this important topic once again.

I'd like to stress right up front how important we feel Bill S-231 is. I can say on behalf of our coalition of media organizations that speedy passage and implementation of Bill S-231 would be a great service to the country.

Why do I say this? Because investigative journalism is a vital component of a healthy democracy. It shines light on issues that matter, whether those are sexual assaults on Canadian campuses, questionable offshore tax havens, or unethical real estate practices—the sorts of stories that pave the way for legislators to make better public policy.

This journalism frequently relies on people who are brave enough to tell their stories and to share stories that would otherwise be untold: sources, especially confidential sources. It also relies on a journalist's ability to protect these sources. Today in Canada that ability is undermined because it is too easy for police to obtain a warrant allowing them to conduct surveillance missions on reporters.

Late last year, we learned that some of Radio-Canada's top investigative journalists were being spied upon by the Sûreté du Québec. Five years of their phone records were asked for; some of the journalists had their locations tracked, and all of them had their freedom infringed upon, all because police wanted to know who their sources were.

It's bad enough that these journalists were spied upon by the authorities, but consider the impact this news had on their ability to do their jobs. What confidential source would share information knowing they could not rely on any protection a journalist might offer? What whistle-blower might decide that it's better to stay quiet rather than risk being swept up in a police investigation? By scaring confidential sources into silence, we will never know how many cases of wrongdoing remained secret and how many cover-ups were made possible.

Right now, the bar for obtaining warrants to conduct this type of surveillance is far too low. As just one example, dramatic testimony in recent weeks at the Chamberland commission in Quebec has shown us that even baseless sexual innuendo can be enough.

Last Thursday, Radio-Canada's Marie-Maude Denis testified that one of the justifications made by police for spying on her was that she had an intimate relationship with another police officer who was one of the targets of the investigation. I want to point out that this was completely false and based on no credible information. That police made this allegation before a justice of the peace was shameful. That it was persuasive is frankly depressing.

The clear implication was that successful women in journalism use sex as a way to get information. If you need proof that the bar for obtaining a warrant needs to be higher, look no further.

Let me be clear: we realize that there must be exceptions. When a journalist is legitimately suspected of a crime, police may well have a good reason to track their activities. If it can be shown that there is no link between the investigation and the journalistic activities, then the suspect should not be able to invoke their profession as a shield, but as soon as the nature of the investigation has a link with the practice of journalism, then the protections of Bill S-231 should apply in full force, and this decision rests properly with a superior court judge.

Thank you for your time. I will pass this on to my colleague, Michel Cormier.

[Michel Cormier, General Manager, News and Current Affairs, French Services, Canadian Broadcasting Corporation, Canadian Media Coalition]

Hello. Thank you for having us.

I’m Michel Cormier, the executive director of news and current affairs for Radio-Canada's French services. I'm the boss of Marie-Maude Denis and other Radio-Canada journalists who were electronically monitored by the Sûreté du Québec.

Radio-Canada and the Canadian Media Coalition appreciate the government’s support for the bill being shepherded by Senator Carignan.

Confidential sources, whom this bill is designed to protect, are essential to investigative journalism. No one disputes this fact, which was recognized a number of years ago by the Supreme Court of Canada. However, the past few months have shown us that the existing police and judicial system falls short of providing adequate protection for journalistic sources.

Over the last few weeks, the Chamberland Commission hearings have given us an opportunity to hear what motivated police officers to obtain the telephone records of several journalists, including three of Radio-Canada’s most distinguished investigative reporters. Their grounds were inadequate and their methods were doomed to failure.

In our opinion, the testimony at the commission of certain police officers involved in monitoring the journalists demonstrated to what extent our reporters and their sources were victims of abuse of authority. It has been acknowledged that the order issued by a presiding justice of the peace granting access to five years’ worth of records of journalists’ incoming and outgoing telephone calls, and, in two cases, their physical locations at the time of the calls, proved nothing regarding the crime under investigation, a potential leak of wiretapping information. However, it substantially jeopardized the identity of the journalists’ sources.

In our view, this was clear from the very start. As a number of police officers have testified at the commission, far too many people had access to the wiretaps, and simple telephone contact between police officers and journalists proves nothing. So, why did they request access to five years of call logs? These questions could have been asked by the presiding justice of the peace. Indeed, they should have been asked, but clearly weren’t, since the orders were issued without further proceedings.

I would ask you to reflect for a few seconds on what that means. The police officers gained access to call logs that could reveal the identity of confidential sources, although anyone could see, right from the outset, that the logs would serve no purpose. Breaching the confidentiality of journalists’ sources through these court orders wasn’t only completely pointless, but also a serious abuse of authority.

The police officers in question were or should have been aware of this fact before requesting the first of the court orders. However, the system completely failed to stop them.

According to Reporters Without Borders, as the member said, Canada did not rank among the top 20 countries for defending freedom of the press this year. Several other democracies and even some American states have laws protecting journalistic sources.

This bill must be adopted to change things, and to ensure that confidential sources will be protected and that never again will a police force in Canada be authorized to spy on journalists without regard for their sources and the crucial role they play in a democracy.

However, the coalition would like to stress that one of the proposed amendments creates a loophole in the protection of confidential sources. The new subsection 488.01(4.1) would exempt any order from the act when it’s alleged that a journalist has committed an infraction. If this amendment is adopted, it would suffice for investigators to claim that they suspect a journalist of having worked with a whistleblower for all protections afforded under Bill S-231 to be completely voided and for sources' identities to be revealed.

This loophole would encourage unjustified allegations against journalists, whereas no investigations involving journalists in the past have ever led to charges being laid against them.

Our proposal provides what we feel is a fair solution to this problem. It ensures that, in the case of journalistic work, the judge applies the test outlined in Bill S-231 before approving the warrant, while exempting investigations into common law crimes from this requirement.

We're very satisfied with this bill. Not only will it put an end to abuses of authority and restore journalistic sources’ trust in the system, it will allow Canada to join those jurisdictions that legally protect all these brave people who come forward to expose unacceptable situations and whose actions contribute to a freer and more democratic society. That said, we ask that you pay special attention to the suggestions detailed in our factum.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Cormier.

We'll continue with Mr. Henheffer.

[Tom Henheffer, Executive Director, Canadian Journalists for Free Expression]

Thank you.

I apologize for being late. I think we've all had experiences with Porter Airlines before. Thank you for allowing me to testify.

I am speaking today as executive director of Canadian Journalists for Free Expression, CJFE, a non-profit, non-governmental organization that works to promote and protect press freedom and free expression around the world. We would like to use our time today to speak to the importance of passing the legislation now, the definitions in this bill, and the amendments proposed by the government.

CJFE strongly supports Bill S-231, the journalist sources protection act. If passed today in its present form, Bill S-231 would be the country's first journalistic shield law, bringing us closer to compliance with international standards for the protection of sources. This is a badly needed bill, and its coming into force would be an important step forward for press freedom in Canada.

As recent events in Quebec and elsewhere in Canada demonstrate, journalists today are vulnerable to arbitrary and summary treatment concerning search warrants and production orders with regard to sources. Bill S-231 was first introduced last November, following appalling revelations that police had obtained warrants to track La Presse journalist Patrick Lagacé's phone and to monitor the phone calls of several other journalists.

Canada needs this bill now more than ever. In addition to the reports of Quebec police spying, no fewer than four Canadian journalists have been arrested this past year. VICE News' Ben Makuch continues to fight a court ruling forcing him to hand over communications with a source to the RCMP. Justin Brake of The Independent faces up to 10 years in prison for reporting on a protest. Cori Marshall, a freelance journalist in Montreal, was spuriously charged with unlawful confinement for simply covering a protest inside a government building, charges which were dropped in large part due to CJFE's intervention. Photographer David Ritchie and Global News videographer Jeremy Cohn were arrested by Hamilton Police Service for their coverage of a pedestrian collision. David Ritchie, as has just hit the news today, has now been remanded and is still facing a court date for these charges on July 20.

Canada fell four places on this year's Reporters Without Borders world press freedom index. In recent years, we've dropped from the top 10 to 22nd in the world, largely because journalists in the country are not currently protected by any shield law.

Despite our suggestions to improve this bill, which I will lay out in a second, we believe this is significant and necessary legislation, and we would impress upon committee members the importance of its swift passage. Let me be clear: Canada needs this legislation to be in effect today. However, passage of this bill in its present form is only a first step to addressing many issues facing journalists in Canada today. This is because many of the definitions are still too restrictive. Further reforms will be required in the future so these protections reflect the reality of Canada' s modern media landscape, but we do not believe that this should prevent the passage of this bill in this session.

For example, the bill has a narrow definition of who can legally call themselves a journalist. We would suggest the definition should eventually be widened to reflect the emergence of newer practitioners of journalism, such as bloggers, and to include the many journalists who would not list the craft as their main occupation, such as student journalists and freelancers. They also deserve to be covered under this law.

We endorse the amendment proposed by Matthew Dubé to broaden the definition to:

any person who contributes directly, either regularly or occasionally, to the collection, writing or production of information for dissemination by any media, including newspapers, magazines or other print media, or television, radio, online dissemination or other electronic media, or any person who assists that person in doing so.

We see similar problems in the current definition of a journalistic source, which reads:

a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source.

The deficiencies in this definition are vividly demonstrated by the ongoing case of Ben Makuch of VICE News. Makuch is currently seeking leave to appeal to the Supreme Court a court order to turn over his communications with his source to the RCMP. The order against Makuch sets a precedent that is potentially ruinous and has wide-ranging implications for press freedom and the integrity of journalism in Canada. While we strongly support Bill S-231, it must be stated that this will provide no protection in the context of the Ben Makuch situation because, although his source refused to disclose his identity, he did not conform to the strict definition of a confidential source as defined in this bill. This leaves our country open to a situation in which a young Canadian journalist could soon be behind bars for simply doing his job.

Clearly, this demonstrates a need for stronger legal protections. Again, we believe this can be fixed in later legislation and this should not prevent this bill from passing in its current form. Requiring an undertaking of confidentiality is problematic, as sources, by their nature, are confidential. Journalists and their editors have a right to decide which parts of an interview are published publicly, regardless of whether that interview was with a confidential source or for attribution.

The definition we propose is as follows: “journalistic source” means any source that transmits information to a journalist. This is broader than the current bill, but there are two reasons for this. One, since a court or police agency cannot know whether a source is in fact “confidential” or not in advance, this should not be part of the threshold that triggers special care. Two, as in the Makuch situation, compelling information about any source, whether or not they meet the strict definition of a confidential source, has a chilling effect. While this change may be outside the scope of consideration for the current bill, the protection of sources that are not anonymous must form a part of further discussion and factor into future measures to protect press freedom in Canada.

The government proposes to amend the wording of proposed subparagraph 39.1(8)(b)(i) to replace the word “essential” with “important”. We believe this change would undermine the principle of the bill and be inconsistent with existing protections. Existing jurisprudence says that it must be a last resort to force the media to pass over information. Setting the threshold for information at “important” falls short of this standard.

The government proposes that the requirement to demonstrate that “due consideration was given to all means of disclosure that would preserve the identity of the journalistic source” become a separate criterion, applicable at each stage of the analysis, rather than a specific branch of the test provided for in proposed subsection 39.1(8). We support this change.

The government proposes that the additional conditions for the attainment of a warrant would not apply in cases where the journalists themselves are suspected of criminal activity. This is meant to prevent the application of Bill S-231 in a context outside of journalistic activities. The Media Coalition has offered remarks regarding this matter and has offered a suggested amendment, both of which we strongly endorse.

The government proposes that the precedence clauses of proposed subsections 39.1(2) and 488.01(2) be withdrawn from the bill, and has expressed its belief that these clauses would unduly affect privacy and national security laws. As the wording of proposed subparagraph 39.1(8)(b)(i) already provides for the disclosure of information or a document that is essential for public safety, we believe the government proposal would unnecessarily undermine the effectiveness of the act.

We thank those who spearheaded this effort, including Senator Carignan and Mr. Deltell. CJFE would also like to commend the Liberal government for its support of Bill S-231. It is a promising, concrete follow-up to Prime Minister Justin Trudeau's previous strong statements of support for press freedom in Canada, and will help establish Canada's position as a world leader on this issue.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Before we begin with the round of questioning, I want to put Mr. Pierre-Roy on notice that I think the committee may want his comments on the suggestions around the amendments, just as a lawyer helping the coalition.

[Sébastien Pierre-Roy, Lawyer, Chenette, Litigation Boutique Inc., Canadian Media Coalition]

Yes.

[The Chair, Liberal, Rob Oliphant]

If you'd like to make them now, you'd be welcome to.

[Sébastien Pierre-Roy]

No. Since I am a litigation attorney, I was told that I should not address the committee unless asked a direct question, because I would use everyone's time. I will answer only legal questions that my colleagues here are not able to answer to your satisfaction.

Thank you.

[The Chair, Liberal, Rob Oliphant]

All right. If you would like a chance to comment on those things, I want you to think about it, because I think we could take some time to do that.

[Sébastien Pierre-Roy]

Thank you, Mr. Chairman.

[The Chair, Liberal, Rob Oliphant]

We'll begin questions with Monsieur Picard.

[Michel Picard, Liberal, Montarville, QC]

Thank you, Mr. Chair.

I'll share my speaking time with my colleague, Mr. Arseneault.

I want to welcome the witnesses and thank them for being here.

First, I want to say that I have great respect for journalistic work. A number of years ago, in another life, I was at times a journalist's source, contributor and coach. It's an essential and necessary occupation. We must do our best to support the work of journalists.

That said, the bill concerns the protection of sources. We spent an hour discussing the definition of “journalist”. However, I think the focus must be on the sources themselves. Our approach must also be current and contemporary

How would you assess the Chamberland Commission's current work? What do you expect from the report the commission will release?

[Michel Cormier]

I can talk about it because some of our journalists are testifying before the Chamberland Commission. I don't see any incompatibility between this bill and the commission's work. There's simply the fact that Radio-Canada has journalists working in Canada's 10 provinces, whereas the Chamberland Commission hearings concern the work of journalists in Quebec.

From the start, we've always wanted the Chamberland Commission's work to explore what occurs when warrants are obtained rather than focus on the journalists' work. We must see what improvements can be made when it comes to obtaining these warrants, whether the warrants are issued by justices of the peace or by superior court justices, as proposed in the bill. There's the whole issue of an individual's involvement in politics and how this influenced the police. The cases being studied by the commission typically concern these issues.

We also certainly want to set guidelines for certain things, as the bill proposes. These include the type of evidence needed to obtain surveillance warrants and the criteria that must be met. We're confident that the commission will look at this. According to the testimony we've heard, the commission's work seems very broad and concerns all the factors that affect these issues.

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

Gentlemen, thank you for being here.

Since I don't have much time, I'll keep my question short.

This bill is mainly to protect confidential information. At one end of the spectrum, the information must be protected. However, at the other end, the interest of the general public must be protected. Somewhere in the middle, these two concepts collide.

I may ask my question backward. I don't know who can answer it. Maybe you can, Mr. Cormier.

Am I right to think the bill doesn't provide absolute protection for the source?

[Michel Cormier]

It doesn't provide protection—

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

Absolute and ironclad protection for the journalistic source.

[Michel Cormier]

We discussed an amendment to make sure this will be the case.

This may be the time to ask Mr. Pierre-Roy to clearly explain the details of the amendment, which we think would improve the bill.

[Sébastien Pierre-Roy]

You're perfectly right, Mr. Arseneault. The bill doesn't provide absolute protection. Far from it.

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

Is there a practical example that could enlighten us, or a case where we could say the journalistic source wouldn't be protected by the bill?

[Sébastien Pierre-Roy]

If the bill were in effect, the 2010 National Post case would be settled exactly the same way. The bill seeks, like the Supreme Court did at the time, to balance certain interests.

All we're asking is that the information on the source be protected until the balance can be determined by a judge. Once the police officer shows that the information is essential to the investigation of a crime, we expect the warrant to be issued.

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

You're referring to the 2010 Supreme Court case involving the National Post. We were discussing it earlier, before the temporary suspension of the meeting.

I'll refer to subsection 39.1(8) on page 2 of the bill:

(8) The court, person or body may authorize the disclosure of information or a document only if they consider that (a) the information or document cannot be produced in evidence by any other reasonable means;

This is perfectly legitimate.

(b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to (i) the essential role of the information or document in the proceeding,

Since you're familiar with this Supreme Court case, you know that Justice Abella dissented. Her dissent concerned precisely this issue.

[Sébastien Pierre-Roy]

The Globe and Mail decision was made at the same time. The Supreme Court determined that, to override the source privilege, we must be dealing with a central issue, which is the wording used in the English version. This means an issue that's essential to the resolution of the dispute, according to the French translation. In other words, if the issue is peripheral to the matter that must ultimately be settled by the judge, it's not worth it to violate the source privilege. However, if the issue is central or essential, it becomes possible to do so.

I think these words are only the fulfillment of the criteria set out in the The Globe and Mail case.

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

However, the Wigmore criteria cited in the National Post decision didn't seem to focus on the essential role of the information once that information is obtained. At least, that's what I understood. I'm not much of a constitutional expert.