Madam Speaker, I am thankful for the opportunity to speak in support of Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code regarding the protection of journalistic sources, otherwise known as the journalistic sources protection act.
I would like to begin by thanking the Senate sponsor for his diligence and hard work on this very important bill, which aims to ensure that the protection of journalistic sources is given due consideration whenever they are at issue in Canadian courts. I would also like to thank my colleague opposite, the member for Louis-Saint-Laurent, for shepherding the bill through the House and his commitment to journalistic freedom. The bill has moved swiftly through the House, thanks to the broad support from all parties.
As we all know, this issue was brought to the forefront a little less than a year ago following events involving the use of investigative tools targeting journalists, in particular revelations that police in Quebec had obtained warrants to monitor the cellphones of several journalists. Following this incident, the Quebec government reacted swiftly and amended its guidelines and safeguards for obtaining warrants that target journalists. As a result, journalists are now listed alongside lawyers, judges, and members of the National Assembly for whom added safeguards and special protocols are in place in relation to warrant applications.
In November 2016, the Quebec government also launched the Chamberland commission to study the issue of the protection of journalists' confidential sources. The commission's hearings have recently concluded and the commission's final report is expected by next March. lt is in this context that Bill S-231 was introduced last November.
In essence, Bill S-231 proposes changes to the Canada Evidence Act and the Criminal Code to enact special regimes to protect confidential journalistic sources. The Canada Evidence Act proposals would create a unique regime applicable any time the media wished to protect a journalistic source. This new regime would codify the common law developed and interpreted through several Supreme Court of Canada cases, while introducing some added protections. For example, the bill would place the onus on the person who seeks disclosure of the information instead of the person seeking to protect the information, as is currently the case.
The Criminal Code proposals relate to how investigative tools, such as search warrants and protection orders, can be issued and executed when they target journalists. Although the goal of these proposals is to protect journalistic sources, the procedure will apply any time a journalist is targeted by an investigative tool. The bill also proposes a triage procedure that requires the sealing of evidence collected and a review by a court before the information is disclosed to the police. Finally, the bill proposes that only Superior Court judges can issue an investigative tool in relation to a journalist.
When the merits of the bill were debated in this chamber at second reading, members expressed support for the bill's laudable objective and solid foundation. Members also expressed the view that the bill could be further improved, bearing in mind the complexity of the law in this area.
This bill is being reported back to the House today with amendments adopted by the Standing Committee on Public Safety and National Security. It was a pleasure to study this bill at committee. I would like to take this opportunity to personally thank my committee colleagues from this side, as well as across the aisle, for their collaboration during the bill's study. The bill, as amended, truly reflects a multi-partisan initiative.
I will focus the remainder of my remarks on the substantive amendments made to Bill S-231 by the committee.
With respect to the amendment to the Canada Evidence Act provisions, the public safety committee deleted the override provision found in proposed subsection 39.1(2) from the Canada Evidence Act portion of the bill. The override provision was problematic because it could conflict with other federal legislation, including matters of privacy and national security. We also did not think it was necessary to give effect to the protections for journalistic sources contained in the bill.
The committee also amended the test found in proposed subsection 39.1(8) of the Canada Evidence Act portion of the bill for the disclosure of information or a document that identified or was likely to identify a journalistic source.
In essence, Bill S-231 has been amended to replace the reference to “the essential role of the information or document in the proceeding” with “the importance of the information or document to a central issue in the proceeding”, as this more accurately reflects the common law as confirmed by the Supreme Court of Canada.
The committee also improved the bill by moving the condition added by the Senate at committee at proposed paragraph 39.1(8)(c), which relates to whether “due consideration was given to all means of disclosure that would preserve the identity of the journalistic source”, to a new proposed subsection 8.1, separate and apart from the test for authorizing disclosure. I think this should strengthen the protection, since it ensures that the source's identity is protected as a separate step, even when the document in question is admissible.
The public safety committee also made a few, and in my view, important improvements to the bill's proposed changes to the Criminal Code. First, the committee amended proposed subsection 488.01(2) so that it would not apply, despite any other act of Parliament. As I mentioned earlier, such an override provision is not necessary to give effect to the protections for journalistic sources contained in the bill and could conflict with other federal legislation, including in matters of national security. Proposed section 488.03 was also removed from the Criminal Code portion of the bill, for the same reason. These are sensible amendments, and I agree with them.
The committee also added a knowledge element to proposed subsection 488.01(2). As originally drafted, this subsection would have required that a warrant, authorization, or order relating to a journalist only be issued by a judge of a superior court, regardless of whether police were aware that their investigation related to a journalist. This is problematic, because in practice, for example in relation to online crime, police may not know the identity of the person they are investigating. If police do not know that they are investigating a journalist, they cannot be expected to follow these new requirements that would have been imposed by Bill S-231, as introduced, when obtaining a warrant, authorization, or order. I therefore agree with the amendment of proposed subsection 488.01(2) to ensure that it only applies if police know that they are seeking a warrant, authorization, or order in relation to a journalist.
Importantly, the committee also amended the bill to add a new process to confirm the validity of a warrant, authorization, or order issued outside of Bill S-231's new regime—in other words, obtained in good faith under the regular process—in the event that an officer subsequently discovered that the target of the investigative tool was a journalist. According to this new process, once they became aware that the warrant related to a journalist, police would be required to, first, inform a judge of the superior court; second, refrain from examining or reproducing the evidence; and finally, seal it until the superior court judge disposed of the application. The superior court judge would have the ability to confirm the existing warrant, vary it, and impose appropriate conditions to safeguard journalistic sources or revoke the order if the judge was of the opinion that the officer knew, or reasonably ought to have known, that the application related to a journalist.
The importance of this amendment cannot be overstated, because it would allow appropriate measures to be taken to protect the confidentiality of journalistic sources, even in cases where a warrant was issued in good faith outside of Bill S-231's regime.
Finally, the last key amendment made by the public safety committee is the addition of proposed subsections (4.1) and (4.2) to proposed section 488.01 of the Criminal Code to ensure that the new test for the issuance of warrants, authorizations, or orders relating to journalists would not apply when the application relates to a journalist's criminal activity. This amendment recognizes that it should not be more difficult for police to obtain a warrant against a journalist if that journalist is engaged in criminal activity.
I believe that these targeted but important amendments are perfectly in keeping with the spirit and important objectives of Bill S-231. I hope that all members support this bill, as amended, with bipartisan support, by the Standing Committee on Public Safety and National Security.