Mr. Speaker, it is a pleasure to rise in the House and speak to Bill C-426.
I doubt that there is any Canadian who would argue with the statement that freedom of speech and freedom of the press are not two cornerstones of a free and democratic society. I think all would agree with the statement that they are imperative.
In fact, subsection 2(b) of the Canadian Charter of Rights and Freedoms provides a specific constitutional right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.
In consideration of Bill C-426, I think that it is important to first summarize the main components of the bill and then determine whether they are an improvement on the current law that we have in the country today. In other words, are there limitations in the current law that threaten freedom of the press and if so, do the provisions that Bill C-426 brings forward address these gaps? If no such limitation exists, then Bill C-426 may be unnecessary.
I would like to begin with a summary of the primary components of Bill C-426. The bill has three main components. The first is a statutory protection that prohibits a journalist from being compelled to disclose the source of information supplied to the journalist. Although not totally clear in the bill, this appears to be a protection from testimonial compulsion when the journalist becomes a witness in a case.
This protection, however, is not absolute. It is subject to a more general provision that expressly prohibits a judge from making an order forcing the journalist to disclose an information source unless the judge is satisfied that certain tests are met.
The difficulty with the two sections being in the same provision is that the first section addresses the journalist as a witness and the second section is all encompassing. It does not matter whether the journalist is a witness or not. This means that it is not clear which section applies and in which circumstance it applies.
A second component of Bill C-426 protects a journalist from having to disclose unpublished information only if the material is of “vital importance” and it cannot be produced in evidence by any other means.
The problem with the bill is that vital importance is not defined. What do we mean by vital importance? Also, the section refers to unpublished information that is produced as evidence. What if the information that is brought forward does not become evidence in the case? Is it still protected? This provision in this bill does not make that clear.
The final component of the bill creates restrictions on the ability of a judge to issue a search warrant to seize information in the possession of the journalist. The reference to a judge is curious in view of the fact that search warrants are usually issued by a justice, defined in the Criminal Code to be a justice of the peace or a provincial court judge. It is not clear whether the reference to a judge is intended to remove this discretion from what the Criminal Code lists as being a justice of the peace or a court judge.
The issuance of search warrants by judicial officers, usually justices, has been considered by the courts. The Supreme Court of Canada has expressively stated:
The privacy interests of individuals in a democratic society must be carefully weighed in a search warrant application against the interests of the state in investigating and prosecuting crimes.
The Supreme Court has also stated that even if the statutory requirements for issuing a search warrant have been met, where the premises to be searched are those of the media, the justice must exercise his or her discretion to determine whether a warrant is actually necessary.
Where a warrant is justified, the courts have directed that the justice must consider the conditions that may be attached to the warrant to ensure that any disruption of the gathering and dissemination of the news is limited as much as possible.
The Supreme Court of Canada has clearly said that a number of factors should be taken into consideration when a justice is exercising his or her discretion to issue a search warrant to seize documents in the possession of the press. The weight given to the various factors varies depending on the facts.
The courts have recognized that where the police seek to obtain a search warrant to retrieve materials in the possession of a journalist that carry a high expectation of privacy, for example, handwritten notes or information jotted down in a scribbler, the justice exercising his or her discretion as to whether to issue the warrant should consider factors that may not be relevant in other circumstances.
One such factor is whether reasonable efforts have been made by the police to obtain the information from other sources. The courts have recognized that a fear that the police can easily gain access to a reporter's notes could hamper the ability of the press to gather that information, to hold onto that information.
There are many examples to illustrate the fact that there is no one size fits all approach to determining whether a search warrant should be issued in particular circumstances involving the press, and if so, what conditions should be attached to the warrant. Each case is considered having regard to the particular facts before the judge.
I suggest that this case by case approach is a very effective way to ensure that an appropriate balance is struck between freedom of the press and the state interest in investigating and prosecuting crime.
In contrast to this approach, Bill C-426 sets out a set of mandatory statutory requirements that must be met in each and every case before a search warrant can be issued. In my view, there is a risk that this makes the law too rigid. I also think that there are two other serious problems with Bill C-426: first, is the very broad definition of a journalist; and second, is the absence of a definition or qualification on what type of information is protected by the bill.
In the bill, a journalist is defined as:
--a person who contributes regularly and directly to the gathering, writing, production or dissemination of information for the public through any media, or anyone who assists such a person.
The concern that I have with this definition is that it is so broad, it captures persons it was not clearly intended to include. Even my Liberal colleague from across the way questioned who then would be qualified, who would be listed as a journalist, so I think this particular aspect of the bill is a concern to all parties.
For example, the definition applies not only to persons engaged in journalistic activities, but also to teenagers who are daily bloggers on the Internet. They could be listed as journalists in those cases. The technician at the television station who repairs the computers used by journalists also technically falls within the definition of a journalist. I cannot imagine that the intent of Bill C-426 was to extend statutory protection to the activities of these individuals.
A further problem is that the bill does not define or qualify what kind of information in the possession of a journalist attracts the protection of the search warrant provision. The section is cast so broadly that it could include information that has absolutely nothing to do with the journalist's activity, for example, phone bills or other things.
The section also does not distinguish between information that journalists collect during their work and information relevant to a criminal investigation involving the journalist as a target.
In conclusion, I submit that it is not clear at all that there are any limitations in the current law that need to be addressed. I think the current law does a very good job of achieving the delicate balance between freedom of the press and the state interest in the investigation of the crime. The current law takes a principled approach that is sufficiently flexible to address a wide variety of fact situations.
I am also concerned that there are some serious problems with many of the provisions in Bill C-426. A number of these problems are sufficiently serious that, not only would they not achieve the policy objective of the bill, but they would create considerable uncertainty about the state of the law.
I am pleased to have had the opportunity today to bring forward in this place some of the concerns we have with this private members' bill. I want to thank the official opposition for addressing some of those concerns in their questions.