Mr. Speaker, as I mentioned earlier when I addressed my question to my colleague from the Bloc, the member for the riding of Marc-Aurèle-Fortin, I am very happy to speak in favour of his bill. I will be brief. Perhaps not as brief as you would like, but I will try.
Bill C-426, as the member for Marc-Aurèle-Fortin mentioned seeks to amend the Canada Evidence Act to protect the confidentiality of journalistic sources and the freedom of the press. It would also add a new clause to the Canada Evidence Act that would allow journalists who appear before a court to refuse to disclose information or a record that has not been published unless it is of vital importance and cannot be produced in evidence by any other means.
In addition, the new clause establishes specific conditions that must be met for a judge to issue a search warrant to obtain information or records that a journalist possesses. The bill stipulates the manner in which a search must be conducted.
Bill C-426 also allows journalists to refuse to disclose the source of the information that they gather, write, produce or disseminate to the public through any media, and to refuse to disclose any information or document that could identify a source.
Under the bill, a judge could only order a journalist to disclose the source of the information if the judge considers it to be in the public interest, having regard to the outcome of the litigation, the freedom of information and the impact of the journalist’s testimony on the source.
At present, as the member for Marc-Aurèle-Fortin stated, journalistic freedom is protected by provision 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression, including freedom of the press. However, there is no legislative measure in Canada that allows a journalist to refuse to disclose a source.
Many lower courts in the country have adopted diverging points of view on this question. They generally rule that even though disclosure of a journalistic source could harm the parties concerned, it is often more important to disclose the information before a court. They generally hesitate to compel journalists to reveal information obtained from a source on a confidential basis. Canadian courts follow the precedence established by the decision rendered by a court in Great Britain in the case of the Attorney General vs Mulholland, which states that journalists should not be required to disclose information provided by a source on a confidential basis unless the petitioner can show that the information is relevant and necessary to the conclusion of a case.
As I said in my question for the member for Marc-Aurèle-Fortin, the definition of “journalist” seems pretty broad to me. He suggested a few ways to resolve this, and I am looking forward to discussing this in committee. In fact, that is why I plan to vote in favour of this bill at second reading and why I am recommending that my Liberal colleagues support this bill.
I would like to raise a few points concerning weaknesses in some parts of the English version of the text. I simply wish to clarify this in the hope that, with the support of other members, my colleague will allow some amendments to be made in committee. Paragraph 39.1(7) reads as follows:
A journalist is required to disclose information or a record that has not been published only if the information or record is of vital importance and cannot be produced in evidence by any other means.
The English version of the bill refers to “vital importance”, while the French version refers to “importance déterminante”.
I should point out that the French version of the text provides a much more concise definition of the conditions required for such disclosure. For example, the word “déterminante” refers, I suppose, to the determination of the case, whereas in English, “vital importance” is very vague and much broader. Therefore, I think we need to find another English expression that makes the English version as clear as the French one.
Next, in the introductory paragraph to paragraph 39.1(8), the English text is poorly written.
It would make the subsection much clearer if the term “if” was replaced by “unless”.
The English text also refers to a search that is “unreasonably conducted”. This is a very broad term that has no precise meaning. I have been unable to find any kind of definition that is provided through jurisprudence on this.
Whereas the French version of the bill which refers to “effectuée de façon abusive” is much clearer and there is an abundance of jurisprudence that actually defines what an abusive search would be. We could be using our legislative drafters and experts in committee in order to tighten up the English text.
Subsection 39.1(9) states: “Any record seized...shall be sealed right away and opened only before a judge who shall determine the manner in which the record is to be kept and disclosed.”. In this subsection the English “right away” should be changed or replaced by the term “immediately”. “Right away” is not a term that we would use in legislation. Those are just a couple of examples.
One of the cases obviously that raised this as an issue with the member for Marc-Aurèle-Fortin was the O'Neill v. Canada which made a lot of headlines and received a lot of attention.
As the member knows, it was challenged constitutionally and section 4 of the Security of Information Act was struck down through a court decision, but the act has yet to be amended. Therefore, I would suggest that the member may wish to agree to an amendment which would go beyond the scope of his bill that would include amendments to the Security of Information Act. Given that it is his bill, he could accept the amendment or not.
In the case of O'Neill vs. Canada, the Ontario Superior Court judge struck down paragraph 4(1)(a), subsection 4(3), and paragraph 4(4)(b) of the Security of Information Act as violations of section 7: the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice and subsection 2(b).
Justice Ratushny held that these subsections were over-broad, arbitrary, and vague and gave the government an unfettered ability to protect whatever information it chose to classify as unauthorized for disclosure and to punish any violation by way of a criminal offence. Therefore, the relevant subsections were declared of no force and effect.