Mr. Speaker, I am pleased to rise today to speak to Bill C-426 on the protection of journalistic sources and the issuance of a warrant to search media facilities. This bill was introduced by my hon. colleague from Marc-Aurèle-Fortin.
We know that Bill C-426 deals with two topics of great importance to any democratic society in which freedom of the press and freedom of information are fundamental values ensuring that an informed debate can take place on issues facing modern societies.
In the vast majority of democratic societies, legislation has been passed concerning these two topics. In other societies, such as ours, the courts have had to rule on these matters as specific cases were brought before them, as indicated by my colleague from Hamilton East—Stoney Creek.
This has resulted in a number of sometimes contradictory rules. As a whole, all these rules may therefore appear inconsistent. However, the courts have consistently recognized the importance and relevance of such a debate in the context of a free and democratic society.
The time has come for the elected representatives of the people to do their part to help resolve in a civilized fashion conflicts which, inevitably, might arise from time to time between the legitimate objectives of governments and the needs specific to journalistic work.
In dictatorships or totalitarian regimes, these issues never arise, but they have arisen in all democracies.
To understand this bill better, members need to see that it is divided into five parts. It might be appropriate to divide it into five clauses rather than five subclauses.
The firs part includes the first two subclauses, which consist of the introduction and definitions. By the way, the term “journalist” is defined in the bill. When the bill is studied in committee, the committee members will do doubt want to discuss and debate this definition of “journalist” again.
The second part includes subclauses 3, 4, 5 and 6. Subclause 3 sets out the principle of protecting a source who has provided a journalist with information in confidence.
Since the purpose of the bill is not to give journalists a privilege but to protect a type of journalistic activity that is considered useful and even necessary in a democracy, subclause 4 provides that the judge may, on his or her own initiative, raise the potential application of subclause 3. I stress the word “may”.
The judge does not have to do so, but can if he or she believes it is necessary. The judge is given this power because protecting confidential sources is in the public interest and not a “corporate” privilege. A source who demanded confidentiality must not suffer because of the negligence or error of the journalist in whom the source confided, if the journalist does not keep his or her promise to protect the source.
Subclauses 5 and 6 deal with the exceptional circumstances under which protection will not be granted. They set criteria that the judge must consider—essentially, the values that are at stake—in upholding or refusing protection. They also cover the procedure to follow and the burden of proof on each of the parties.
Subclause 7, for those who have read it, does not deal with the confidentiality of the identity of a journalistic source who has provided a journalist with information. It deals with journalistic information that has not been disclosed or published—often notes—even if the journalist did not obtain this information from a confidential source.
This protection is important so that the public does not perceive journalists as “auxiliary police” or as assisting the government, which would impede their ability to obtain information and properly inform the public.
In this regard, Judge La Forest of the Supreme Court of Canada wrote in R. v. Lessard in 1991:
Like Justice Cory, I take it as a given that freedom of the press and other media is vital to a free society. There can be no doubt, of course, that it comprises the right to disseminate news, information and beliefs. This was the manner in which the right was originally expressed, in the first draft of s. 2(b) of the Canadian Charter of Rights and Freedoms before its expansion to its present form. However, the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference.
The judge went on to say:
I have little doubt, too, that the gathering of information could in many circumstances be seriously inhibited if government had too ready access to information in the hands of the media. That someone might be deterred from providing information to a journalist because his or her identity could be revealed seems to me to be self-evident.
Since this case did not involve protecting a source that provided a journalist with information in confidence, but searching Radio-Canada premises to find and seize video recordings of a demonstration of strikers, the last sentence applied to the journalistic activity in general and not just confidential protection.
Am I to understand that I have just one minute left, Mr. Speaker?