Mr. Speaker, like my Bloc colleague across the way, the mover of the bill, I am very pleased to join in this debate and speak on Bill C-426, which is, as we have heard, an act to amend the Canada Evidence Act.
The substance of this bill is the protection of the confidentiality of journalistic sources. It would, in short, allow journalists to refuse to disclose information or a record which has not been published unless that information or that record is of vital importance and could not otherwise be produced in evidence in any other fashion.
The bill, as I read it, would also stipulate conditions which must be met or complied with before a judge issues a search warrant to obtain information or records in the exclusive possession of a journalist.
The bill would also allow journalists to refuse to disclose the source of the information which they gather, write, produce or otherwise disseminate to the public through any media and to further refuse to disclose any information or document that could identify a source or sources.
However, a judge would have at his or her discretion the authority to order a journalist to disclose the source of the information if that judge considered the information or the data to be in the greater interest of the public.
I am inclined to vote in favour of the bill at least going to committee stage, with the expectation that the committee members would see fit to amend the bill when they scrutinize it.
There have been various court decisions on this topic. Generally, Canadian courts have followed the ruling in a decision from Great Britain, cited as Attorney-General v. Mulholland. The nub of that decision is that journalists should only be required to reveal information received from a source in confidence when it can be demonstrated that the information is relevant and necessary in order for the case to be resolved.
Closer to home, one of the best known cases on the issue of journalistic freedom is the case involving the Ottawa Citizen reporter Juliet O'Neill. Members of the House will recall that Ms. O'Neill, a journalist writing for the Ottawa Citizen, wrote an article on November 8, 2003 about Maher Arar, the Syrian-born Canadian citizen whom American authorities arrested and wrongly deported to Syria.
In January 2004, some several weeks after her article, the RCMP obtained two search warrants to search Ms. O'Neill's home, as well as her office at the Ottawa Citizen. The warrants were issued by a justice of the peace in support of a criminal investigation into alleged violations of the Security of Information Act.
The searches of Ms. O'Neill's residence and office took place on January 21, 2004, and resulted in the seizure of certain documents and certain computer information. Needless to say, Ms. O'Neill did not agree to the searches taking place either at her home or at her office.
The matter found its way to the Ontario Superior Court of Justice and an extensive hearing over several days took place in the late summer and early fall of 2006. The Superior Court Justice struck down various subsections of the Security of Information Act, ruling that the subsections violated both section 7 and section 2 of the Canadian Charter of Rights and Freedoms. We know that section 7 in particular deals with “the right to life, liberty and security of the person and the right not to be deprived” of those rights “except in accordance with the principles of fundamental justice”.
In commenting on the subsections of the Security of Information Act, the justice held that the subsections were overly broad, arbitrary, 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. In short, the justice ruled that the subsections were of no force and effect.
After the decision of the court, the federal government announced that it would not appeal the decision and that it would consider its options. In February 2007, the special Senate committee on the Anti-terrorism Act released a report recommending that the Security of Information Act be amended to narrow the scope of information for which disclosure is an offence.
As always, the issue is the proper balance to be struck between the public's right to know, broadly speaking, and the interest of the public with respect to security matters. Clearly, it is essential for the government to be able to prevent or deter the release of certain types of data in the interests of national security and that deterrence can and should include the imposition of criminal sanctions. But public discourse is a vital part of any democracy, as was expressed by the Supreme Court of Canada in 1996, and I quote:
The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule. The liberty to criticize and express dissenting views has long been thought to be a safeguard against state tyranny and corruption.
As the well-known French author, Albert Camus, said, “A free press can of course be good or bad, but, most certainly, without freedom it will never be anything but bad”.
In my view, Bill C-426 moves us further along with respect to the proper balance to be struck between journalistic freedom on the one hand, and the disclosure of information which is of critical importance and cannot be produced by any other means on the other hand.
Like the member opposite who spoke prior to me, amendments that I would like to see introduced at committee stage include a tighter or better definition of “journalist”. The definition of “journalist” as presently written in the bill is too broad and would undoubtedly be problematic. It is peculiar, however, that currently no federal or provincial legislation appears to define the term “journalist” nor does Canadian case law provide a consistent definition. Ideally, the committee will see fit to recommend an improved definition of the term “journalist”.
There are also a number of instances where the English wording of parts of the bill is weaker than the French wording. This situation can also be remedied through amendments at the committee stage.
Simply put, my inclination is to support the bill proceeding to committee in the hope and expectation that amendments will be made at that stage.