moved that Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants), be read the second time and referred to a committee.
Mr. Speaker, it must be quite something for individual members to have to select the topic of their private members' bills. Mine has to do with a concern I have ever since the late 1960s. As a young lawyer at the time, I witnessed the birth of the Quebec Federation of Professional Journalists. I had friends who were journalists and I was called upon, as a lawyer, to sort out many problems between journalists and the police.
At that time, we came to the conclusion that it would be great if there were legislation. Since then, we have had section 2(b) of the Canadian Charter of Rights and Freedoms guarantee the freedom of the press and other media of communication. In addition, the case law has evolved toward providing some protection. I think that the bill I have introduced is fitting a lot of case law in just two and a half pages. The sad reality is that the problem is still a current one. It happens all the time. It may not be as newsworthy as other items, but unfortunately there is still a problem.
The first broad principle we must understand is that this is not a question of giving journalists privileges; it is a question of protecting a journalistic activity that is for the common good and that enables people who are witnesses to breaches of trust or great injustices to direct investigative journalists toward sources of information or evidence of breaches of trust. The journalists will then write their articles based on that information.
The bill is also an attempt to protect another broad principle: that journalists must not be perceived as auxiliary police. In too many criminal cases, there have been attempts to use information that journalists have gathered, with harmful effects, because then demonstrators, for example, attack the journalists. In fact, several camera operators have had rocks thrown at them at demonstrations.
While the content of the bill is very brief, it addresses four major subjects. First, there is protection of journalistic sources. Sources request confidentiality because, if they are revealed, they could suffer reprisals, sometimes actual physical reprisals, and often economic.
Second, it establishes the principle that use of material that journalists have gathered but not published will be the exception. This involves various cases where confidentiality has been requested, but it is still important for journalists not to be perceived as auxiliary police. As well, it provides for search warrants to be issued in exceptional cases, and we will see the requirements that must be met. It also provides for how the search is to be conducted, once it has been begun. And I also decided to solve one small problem by offering a way in which publication can be easily proved. A publication has been published, and it seems to me that it can be proved by producing it in evidence.
As well, it obviously provides for the necessary exceptions: first, to prevent easy defamation through bad influence by a malicious source, and second, to reconcile these principles with the state’s interest so that an investigation can be carried out and crimes punished.
This bill is therefore based on the importance of freedom of information in a democratic society. Because this is a value of a democratic society, and not a privilege, we will also see that it provides that the judge may raise the question on his or her own initiative.
First, the bill uses the definition of the word “record” found in the Access to Information Act, because it is the broadest definition found in our legislation and it is also used in numerous other laws. The bill also relates to the Canada Evidence Act. Obviously, we are legislating only in relation to federal matters and this bill applies to federal matters.
Then it defines the word “journalist”. The definition is broad, but also contains restrictions, as we will see. A journalist is 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.
Thus, we cannot act as a journalist one day and spread slander. No, it would have to be a regular contribution.
The definition of media is broad. It includes blogs, with the exception of occasional blogs, and includes those written for the public on a regular basis.
Subsection 3 establishes the principle that a journalist has the right to refuse to disclose a confidential source. As I said earlier, this is a principle of public interest and not a privilege given to journalists. If judges notice a problem of that nature, they can raise the issue themselves.
Subsection 5 talks about the inevitable exception. However, it is very limited and intended to protect public interest. Thus, a judge “may not order a journalist to disclose to a person the source of any information that the journalist has gathered, written, produced or disseminated for the public through any media, unless the judge considers that:”
First of all, the person who is requesting the disclosure has done everything in the person’s power to discover the source of the information through other means. The disclosure is in the public interest, and the judge must consider three principles: the outcome of the litigation, and therefore the importance of this case for the outcome of the litigation; the freedom of information, and thus the impact it could have on how easy it is for journalists to obtain information; and the impact of the journalist’s testimony on the source.
All of these provisions were based on current case law. The burden of proof falls to whoever requests the disclosure. They must prove that the disclosure is necessary.
Let us now move on to subsection 7. We are not talking about records with a confidential source, but notes that journalists have decided not to publish. This is done simply to establish the principle that journalists must not be seen as working on behalf of the state. If they decide to not publish something, then before searching for their personal notes, we must ensure that it is really necessary to do so and that other means have been attempted to obtain them. Television cameras are not police cameras and must not be perceived as such.
A judge must meet very strict conditions for issuing a warrant. When we read them, we realize the importance of these conditions. What is quite important, among other things, is that there must be a supporting affidavit enabling the judge to properly consider all the circumstances in order to determine if the applicable conditions are met.
Obviously, the judge must provide the conditions for the search to ensure that the media are not unduly prevented from publishing the information. The search must not interfere with their work.
Once the warrant is provided, the way in which the search is to be conducted is indicated. It must not be unreasonably conducted. Once again, I refer to jurisprudence. Given that a decision will have to be made on whether the information is public or secret, every document must be sealed immediately.
I have added something that I believe may be useful, that before sealing documents, the police involved in a search must obtain information.
To fully respect the principle that documents must not be disclosed before a judge has ruled to that effect, I establish this principle, namely that anyone who participates in seizing a document must keep its contents confidential, unless otherwise instructed by the judge at a later date.
Finally, the fourth part is to ensure, since we are amending the Canada Evidence Act to make it easier to produce a publication in evidence, that it is not necessary to summons the editor in chief or anyone else at the newspaper. If it is published, it is published and one only has to produce it. That is established by subsection 11.
The bill is a distillation but what purpose does it serve?
That is what I was told by one of the experts I consulted. Instead of citing 1,000 or 2,000 pages of jurisprudence, instead of identifying majority and minority judges and so on, this piece of legislation—which respects the principles of jurisprudence—is only two and a half pages long. That makes it a very useful, practical tool. It is useful to police officers because it tells them the requirements that must be met before seeking a search warrant. It also helps them execute search warrants. All of these rules exist in the many long pages of the jurisprudence. The bill will also be useful to justices of the peace who issue search warrants. Before publishing search warrants, justices will consult this short piece of legislation and know exactly what to do. It will also be useful to the media and journalists who can read it to find out how they are protected.
It should be noted that this is just a federal law. Therefore, it does not apply to civil matters. It does, however, cover police relations. In the past, this is what caused the most problems. I am sure that it will also influence civil law because it is inspired by paragraph 2(b) of the Canadian Charter of Rights and Freedoms, which also applies to civil legislation. It therefore affects civil law. Given that the principles underlying this act summarize the jurisprudence related to paragraph 2(b), judges in the civil law system will certainly look to it for inspiration.
Once again, it is important to understand that this is not a privilege for journalists. This does not release them from their civil obligation to not engage in gratuitous defamation. Journalists will have to use independently gathered evidence to decide whether to expose and disseminate what they have learned. The source must remain anonymous to avoid reprisals. In so doing, the paper or other medium the journalist works for that publishes findings assumes full civil responsibility for any damage resulting from false or defamatory information. To comply with their civil obligations, the media must be able to present a defence based on public interest and truth.
I had a lot of help drafting this bill. First, I was inspired by current jurisprudence on this issue, which I deal with as a hobby. In fact, I practised criminal law, but I have been interested in this issue since the end of the 1960s. I also relied on the work of the Fédération professionnelle des journalistes du Québec, including a remarkable study by Marie-Claude Pednault. I was also inspired by the memorandum of understanding in Quebec between the justice department, the bar and the Fédération professionnelle des journalistes du Québec. I consulted legislation in Belgium, France, Sweden and a number of other countries. I read jurisprudence in the European Court of Human Rights.
This bill is short, but, for those who are going to read it, it is dense. It was not scribbled down quickly on a napkin. I also consulted a number of expert lawyers and information law professors. I think this piece of legislation fills a need and it will be useful.
By the way, the United States has 32 laws on this very mater. This bill is consistent with the line of thinking in democratic countries that recognize the fact that in the society we live in, it is in the public's interest for some people with information about corruption or gross injustices to be able to turn to journalists and direct them in their investigations. Then, when there are legal debates and the crux of the debate is not on the defence of the corruption for which there is evidence, but on the knowledge of who provided the information, the judge will be able to refuse in order to protect the source.
Allow me to cite Justice Cory, in one of the cases that inspired me:
Freedom of the press is vital to a free society and comprises the right to disseminate news, information and beliefs. 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. The press should not be turned into an investigative arm of the police. Thus, the fear that the police can easily gain access to a reporter's notes could well hamper the ability of the press to gather information.
As you can see, this truly is an issue that raises extremely important principles of democracy.
