Thank you, Mr. Chairman.
I did not table this bill in order to create a privilege, but quite the contrary, in order to protect a certain kind of journalistic activity that has proven in every country in which it has been applied that it allowed for certain very serious situations that required correcting to be corrected. And in passing, these countries are our allies, they are also recognized as democratic countries.
This bill deals with two topics of great importance to any democratic society in which freedom of the press and freedom of information are fundamental values ensuring that an informed debate can take place on issues facing modern societies. In the vast majority of democratic societies, legislation has been passed concerning these two topics. In other societies, such as ours, the courts have had to rule on these matters as specific cases were brought before them. This has resulted in a number of sometimes contradictory rules. As a whole, all these rules may therefore appear inconsistent.
However, the courts have consistently recognized the importance and relevance of such a debate in the context of a free and democratic society. The time has come for the elected representatives of the people to do their part to help solve in a civilized fashion conflicts which, inevitably, might arise from time to time between legitimate objectives of governments and the means specific to journalistic work.
In dictatorships or totalitarian regimes, these issues never arise, but they have arisen in all democracies. To understand this bill better, members need to see that it is divided into five parts. It might be appropriate to divide it into five clauses rather than five subclauses, or perhaps even six, as we shall see later on.
The first part includes the first two subclauses, which consist of the introduction and definitions. The second part includes subclauses (3), (4), (5) and (6). Subclause (3) sets out the principle of protecting a source that has provided a journalist with information in confidence. Since the purpose of the bill is not to give journalists a privilege but to protect a type of journalistic activity that is considered useful and even necessary in a democracy, subclause (4) provides that the judge may, on his or her own initiative, raise the potential application of subclause (4).
The judge does not have to do so, but can if he or she believes it is necessary. The judge is given this power because protecting confidential sources is in the public interest and not a corporate privilege. A source who demanded confidentiality must not suffer because of the negligence or error of the journalist in whom the source confided, if the journalist does not keep his or her promise to protect the source.
Subclauses (5) and (6) deal with the exceptional circumstances under which protection will not be granted. They set criteria that the judge must consider, essentially the values that are at stake, in upholding or refusing protection. They also cover the procedure to follow and the burden of proof on each of the partners.
Subclause (7) does not deal with the confidentiality of the identity of a journalist source who has provided a journalist with information. It deals with journalistic information that has not been disclosed or published even if the journalist did not obtain this information from a confidential source. This protection is important so that the public does not perceive journalists as auxiliary police or as assisting the government, which would impede their ability to obtain information and properly inform the public.
In this regard, I could quote Judge La Forest of the Supreme Court of Canada in Rex v. Lessard at length, but I see that time is running out more quickly than I anticipated. Since this case did not involve protecting a source that provided a journalist with information in confidence, but searching Radio-Canada premises to find and seize video recordings of a demonstration of strikers, the last sentence applied to the journalistic activity in general and not just confidential source protection.
I also believe it is in the public interest that journalists not be regarded as auxiliary police. In fact during the 1970s, at a time when demonstrations were more commonplace and often less peaceful than today, to say the least, camera operators often became the target of projectiles thrown by some demonstrators. I have to say that the choice of words to translate the term “importance déterminante” was not the best. The words in French I use in the strict French sense: the word “importance” has the usual meaning given in the dictionary while the qualifier “déterminante” has a specific legal meaning. It refers to the basis on which the judge can decide for or against the party on the substance of a case or an implicit element.
The best translation that was suggested to me would be “determinative of the outcome” rather than “of vital importance”, which is too vague. It is also the expression used by the European Human Rights Court in Goodwin v. the United Kingdom to translate what was determinative in that case.
This criterion is different from the ones the judge must consider in subclause (5), since it does not have to do with protecting the secrecy of a source, but the fact that journalists must remain independent to do their job. The values are different, even if they all have to do with the gathering of information.
We notice that this independence of journalists is one of the surest ways of identifying democratic societies. In all non-democratic regimes, journalists or the majority of them are auxiliaries of the state when they are not quite simply thurifers of the government in place.
Subclauses (8), (9) and (10) have to do with issuing search warrants for media premises, the procedure to follow, how the searches are conducted and the provisions that guarantee protection of any information the judge deems should be protected.
These measures essentially repeat what is in the case law, which is the current authority. They have the huge advantage of taking up only one page, compared to the hundreds of pages lawyers pleading this type of case must now consult. At least, that is what two lawyers who teach and work in the field of information law all said. So these measures will be a useful tool for justices of the peace who issue search warrants and for the police officers requesting them, for journalists and their bosses who are subject to them, and for the lawyers they call on when the police show up at their door. In a country like ours, the process set out in this subclause is a civilized way of doing things.
Subclause (10) provides for information to remain secret that the court deems must remain secret.
And finally, subclause (11) represents the fifth and final part of this bill. We're taking advantage of this opportunity to solve a problem that is very tiresome for publishers: how to prove something is published? By producing the publication. Was it really necessary to do something more? If we want to prove that something has been published, one will only have to produce it in evidence, or as a supporting document.
Currently, many lawyers still believe that they have to subpoena heads of media enterprises as businesses in order to prove that something has been published. Subclause (11), which I hope will become section 39.5, could be used to remind them.
Finally, the objective of this bill is not to provide immunity to some criminals or individuals who wish to libel someone through a journalist. This principle of anonymity of confidential sources is something that some journalists have been prepared to go to prison to defend, and will continue to be in future. Indeed, some have gone to prison for it.
I think it would offend them greatly to see that the principles that they have defended with such courage might be used by criminals to escape the punishment they deserve. I believe that my bill is clear enough, particularly as it obliges the court to assess the values at stake, which are freedom of information and the interest of the state in having knowledge about and in punishing the crimes that have been committed. However, after having discussed this with many people, I felt it would be a good idea to add a clause that clearly states that this bill does not apply... In fact, I have it here.
In fact it would read as follows: “Sections 39.1 to 39.5 would not prevent the seizure or disclosure of any communication or document prepared with a criminal offence or a fraud in mind.”
This interpretation, I am sure, will reassure the police, and will make it clear that we are not talking about a privilege and that this protection will cease when we are talking about indictable offences.
I felt it was a good idea to add a few words here and there in order to clarify the fact that it is not a case of protecting criminals. As far as sources are concerned, for example, I am talking about confidential sources. As far as the information gathered by journalists or the documents created are concerned, it is very specifically in the carrying out of their professional activities. These very short amendments will be able to reassure a lot of people.
Thank you, Mr. Chairman.
There are very few definitions of the word “journalist” in existence. I asked the people at the Library of Parliament to do some research on this subject, and they came up with the same results as me. They came to the same conclusion. There have been some definitions for some specific purposes. In this case, because it is an issue not of protecting journalists but of protecting their sources, we wanted the definition of the word “journalist” to correspond to people who would be likely, in the practice of their profession, to be the guardians of some secrets or of anonymity. Our definition limits the sense of the word “journalist”. For example, it does not include people who write editorials. We define the word “journalist” as follows in the bill:
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.
This is what one finds in the case law. The word “regularly” is important. We're not talking about someone here who wants to commit libel at some point. Furthermore, it is in the practice of the profession. It concerns the gathering of information and what follows that and it is through a media outlet. We are not talking about a private investigator or anything of that nature. Finally, it has to be intended for the public. I'm not talking about a niche group: I'm using an expression that is commonly used by journalists. We're talking about the general public. We're not talking about church bulletins, annual reports of corporations or other things of that nature, but indeed about information that is intended for the general public.
We have left enough flexibility to be able to plan for the future. Every morning, I read a paper on the Internet that is not easily accessible. I think there will be more and more papers on the Internet and some of them will only be available in that format. However, they will have to have people working for them that gather information and process it for the public. In addition, I added the words “anyone who assists such a person”. Experience in other jurisdictions has demonstrated that it was useful. In fact, cleaning ladies have been hired in some countries to go through journalists' notes in order to find out who their confidential sources were. The term “anyone who assists such a person” covers that kind of situation.
I also have an amendment to propose that, I believe, would deal with the objections that some police officers have raised and shared with me. As far as search warrants are concerned, I think I was able to appropriately sum up two Supreme Court cases that are part of the case law, that is to say the requirements of both Regina v. Lessard and CBC v. New Brunswick (Attorney General). I think that if you read the relevant excerpts, you will see that this summary is appropriate. I think we should probably be talking about “search warrants of media premises”. That is what I was saying in my presentation and it is also what is said in most of these cases. Journalists are not targeted at home.
I would have to disagree, because to take the assertion you've made, that a case could not be impacted—a case, for example, dealing with national security—would be to suggest that your private member's bill does nothing beyond what the law currently is in our country. The fact of the matter is, if this bill were to pass, my read of it says that it goes well beyond what the current common law is in this country.
I think, in fact, your bill is designed to protect certain sources and to protect certain information, as I see it—or that would be the effect, if it passed. Therefore, one is led to the inescapable conclusion that what would be a successful prosecution today on a case of national security would not be a successful prosecution if your bill were to pass.
Obviously we recognize—probably everyone around this table recognizes—those basic rights that you've talked about, the charter rights you've mentioned. But just to be clear, in law, if it were to pass, this bill goes well beyond those well-established rights.
I have to refer you—I know you've been following it—to the recent case in the Court of Appeal for Ontario, R. v. the National Post, where the Court of Appeal in Ontario discussed these very issues and this balance that we strive to have in Canada between protecting and upholding our freedoms, but also protecting and upholding the rights of Canadians—and that means protecting them from crime and from issues that could impact on national security. The court, in fact, strongly upheld what is the current state of the law.
I would like to get your perspective on that, because to say that a prosecution would be treated the same today as it would be after your bill had passed.... There would be some evidence available now that would not be available if your bill passed. I think we have to be quite aware of that.
That depends on the jurisprudence you refer to. And also, I'd need more details on the hypothetical case relating to national security that you're referring to.
I actually read the transcript of the case you're referring to closely and I refer you to paragraphs  and thereafter, including —which I will not read aloud now—since you seem to be familiar with them. You'll see that by applying my bill, and also the amendment put forward, the decision would be the same. Furthermore, it's a decision with which I would agree.
Now, when I drafted my bill, I modelled it not only on Canadian jurisprudence, but also international jurisprudence. I read cases from the European Court of Human Rights, including Goodwin v. United Kingdom. I can tell you that what you find in my bill is basically the norm in civilized countries such as ours; countries which consider journalistic independence to be a fundamental value in a modern democracy.
In fact, if you read subclause (5)(b), the judge is called upon to weigh things up. Now, for further clarity, I'd suggest you add paragraph (iv), which would be similar to subclause (8)(b). You would still have all of that as a safeguard since that's what the Ontario Court of Appeal decision was based on, that is on the object used to transport the fraudulent document. In other words, the envelope itself would have been used in the commission of a serious offence. Under my bill, I'm convinced that by applying the principle of subclause (5)(b)—
Good afternoon, Mr. Ménard.
First of all, before I get out my scissors and my paring knife, I wanted to congratulate the member for bringing the bill forward. He's done a really good job of attempting to codify the sought-after balance between the rights of the individual, the interests of the state, and the freedom of the press. The freedom of the press is a fundamental plank of our democracy, as it is in most democracies. The House has already accepted in principle the object of the bill, and it's a good effort.
Now I have some questions about some of the details, as Mr. Moore does. I think Mr. Moore probably has a slightly longer list of questions. But I want to direct your attention to subparagraph 39.1(5)(b)(i). These are the criteria, and it refers to the outcome of the litigation.
I'd like you to rethink that a little bit. You may not have an answer now, but how could the judge in making this decision, how could the parties in making a decision, take into account the outcome of the litigation when they wouldn't know it? They'd be right in the middle of the litigation.
You may be referring to the goal or object of the litigation as opposed to the actual outcome...unless you're thinking of the impact of the outcome of the litigation?
Again, further to Mr. Réal Ménard's question, to suggest that there wouldn't be an impact, to me, is to suggest that the bill does nothing. We wouldn't all be sitting here if this bill didn't do something. I would argue that it may not have been your intent, but this could have an impact on those types of investigations.
The bill establishes for journalists a new class privilege that does not exist now. The presumption now is that journalists are subject to the same treatment as all other Canadians, and there's a legal presumption that relevant evidence should be presented to the courts. That's the presumption, and I mentioned that in an earlier question. The assertion of journalistic privilege is an exception to that rule.
Whether it's the intention or not, your bill would supercede all other federal acts—that's stated explicitly in the bill—including Criminal Code provisions, as well as acts that could impact on terrorism and national security, as I mentioned. It would extend to journalists a privilege that is not accorded to any other Canadian and in fact throw out the balance that the courts as recently as this week have upheld, which says that there is an appropriate balance, that journalists can exert journalistic privilege but that has to be dealt with on and established on a case-by-case basis.
What we have with your bill is an overly broad definition of journalist that extends this privilege to journalists above and beyond all Canadians and really fundamentally shifts the balance that has been established. Again, I would put to you the question: is it not true that if this bill were to pass, there would be some cases that could proceed now that will not be able to proceed because of a lack of relevant evidence?
I appreciate the opportunity to be here. As the chair indicated, I am a prosecutor in Alberta. I have been prosecuting for approximately 17 years. Currently I prosecute cases in the courts of appeal and the Supreme Court of Canada. I have been asked by my department to appear and express our concern about this bill. That concern can really be divided into two main categories.
The first category relates more to process, and the second relates to the substance of the bill. The process concern can be summarized briefly. It is this. When fundamental changes are undertaken with respect to the criminal law or related acts, frequently, almost invariably, there is extensive consultation. That consultation is critical because not only are there many other stakeholders who are involved, but from the perspective of a prosecution service, the practice changes across the country.
The approach we might take in Alberta with respect to advising police on investigations or prosecutions might very well be different from the approach taken in another province or jurisdiction. Those differences can often have a critical impact on what the legislation is going to do. So without a consultation that gives an opportunity for all of those voices to be heard, and all of those differences to be taken into account, you run the very grave risk of significant unintended consequences. It is to those consequences that I wish to very briefly speak.
In my submission there are at least five areas of the bill that give rise to these unintended consequences. The first is something that has been spoken of, and that is the breadth of the definitions. The definition of journalist is particularly broad. It is broader than analogous provisions--for example, in the United States before the Senate and House of Representatives. The definition is, in my submission, impermissibly broad in two respects. First of all, you can see in analogous legislation in the United States, for example, that specific efforts were taken to exclude those who were not in the business of publishing or disseminating information for gain—that is, as part of their livelihood.
Now, in the age of the Internet, you can readily see where that difficulty might arise. If I have a blog, I can write anything on that blog. I gather the information. I may research it. I then disseminate it. I would qualify as a journalist and have protection under this bill. That could apply virtually without limit to anyone with access to the Internet.
The second difficulty with the definition, and this may be an intractable problem with this structure, is that you can't exclude from the definition certain kinds of journalists or people who would qualify as journalists. There are two organizations that I would reference in this regard. The first is an organization called NAMBLA. It's the North American Man/Boy Love Association. It's their object to, under the guise of seeking to change the law, advocate for sex between adults and children. They have a publication that circulates. Anyone who writes for them would qualify as a journalist. They may well have descriptions of activity that would either constitute an offence under the child pornography provisions of the code or be a description of a substantive offence under the code. We would have no way of excluding them from the definition of journalist.
As a related example, there's a website in the United States that I'm not advocating, but it's called whosarat.com. It gathers and publishes on confidential informants: the picture of the informant, a description of them. If you happen to be an undercover operative in the United States, you may well find your picture and your description on that website. People who run that website are journalists, according to this bill, and would be afforded the protections of the bill. I don't for a moment suggest that was the intention, but it may be the unfortunate reality.
Second, the definition of record in the bill is also very broad. It would capture virtually any kind of information, including pictures or videos. The case law, particularly Lessard, differentiates the expectations of privacy that might attach. You can well appreciate that speaking to a confidential source is a very different circumstance from videotaping a public demonstration; the bill doesn't differentiate between those types of information and the case law does.
A further difficulty, and this is a fundamental difficulty, is that this bill drastically increases the scope of privilege. Currently every legislative provision of which I am aware, as well as the common law, protects privileges for information that's given in confidence. There is no reference in the operative provisions of the bill to these being confidential sources. They are simply journalists' sources. That would result in a protection of virtually any kind of source, and it would be a fundamental and--with respect--virtually unprecedented expansion of the law that's not found in any other common-law country of which I am aware.
The next difficulty to which I refer is the restriction on the dissemination of unpublished information in proposed subsection 39.1(7) of the bill. This would provide a protection that's broader than that attached to what's called work product privilege. It's a subset of solicitor-client privilege. If I, as a lawyer, am preparing documents in contemplation of a court case or litigation, those documents are privileged. That privilege only lasts as long as that particular litigation. The Supreme Court has said that when that litigation ends, the privilege ends. That is not so with this subsection. If a journalist investigates something, it would fall subject to this protection, and the standard is particularly high.
Briefly, the onus provisions of the bill are fundamental and significant. They not only cause difficulty for prosecutions, but also fundamentally alter the law with respect to disclosure of third-party records. If I am Mr. Charkaoui and I am seeking to get information now that might be in the hands of a journalist and would assist me in my defence, this bill imposes a higher standard or onus than currently exists under the law. This bill changes the law with respect to disclosure and would impose a standard that would likely infringe the Constitution. It's a higher standard than in O'Connor or Stinchcombe or any of the related legislation.
Finally, with respect to search warrants, the bill seeks to codify the law, but in my respectful submission dangerously oversimplifies it. Significant considerations are left out of the list. I'm certain it is done by omission and unintentionally, but there are things not included in that list. If the bill is passed, it will be interpreted as a codification and a replacement of the existing common law. Those factors will no longer be available to be considered. All these things will result in a fundamental and, in my submission, drastic change of the laws that now exist.
I appreciate the opportunity to speak to you today. Perhaps I should indicate why I'm here. The Department of Justice is, of course, in view of the minister's responsibility for criminal law reform, interested in any bill that would propose fairly significant changes to the criminal law, and hence I am here today to very briefly give an overview of the current law and our assessment of how the bill might change the current law, again whether intentionally or not.
I won't repeat the points that have been already stated, in the interest of time. I might just start, though, by indicating that with respect to the definition of journalist, one of the things that I'd like to bring to your attention is that currently the case law, while not defining a journalist, has been in relation to professional journalists, people who have been employed by newspapers, etc. The activity that's been the subject of consideration by the courts has been journalistic activity. The information in question has been in relation to that activity, and while that may be intended in the definition, I direct your attention to the fact that there is no definition of information in this bill, and there isn't expressly a requirement that the information in question relates to journalist activity. I just highlight that for your consideration.
The other thing I'd like to point out certainly has been referred to by Mr. Hawkes. Currently at common law there is a journalistic privilege. It is a case-by-case privilege. The onus is initially on the journalist to show that the information in question, including the identity of a source, is confidential information. There is a common-law test in respect of assessing whether that information is confidential or not. Then the final aspect of that is, again, an onus on the journalist to demonstrate, through a balancing test, that the interest in non-disclosure outweighs the interest in disclosure. The entire time that onus is on the journalist. In the bill it would appear that there's an assumption that the information is confidential and it is not to be disclosed unless the individual seeking disclosure is able to satisfy particular statutory tests. That would certainly be a difference between the current law and the bill.
Also, very briefly, I'd like to direct your attention to the override provision, as we call it, subclause 39.1(2), which gives priority to this particular act over not only other acts of Parliament but also other provisions of the Canada Evidence Act. I perhaps could direct your attention to the fact that with the reference to search warrants, with the references in the bill to various tests, it would appear that the bill is primarily directed either to criminal or to civil proceedings. It is to be remembered that the Canada Evidence Act, of course, governs all federal proceedings, which includes proceedings in respect of which a judge is not the fact-finder. So it would include administrative tribunals, proceedings before committees, commissions of inquiry, etc. From that perspective, one might be concerned that the scope of the bill is perhaps not consistent with all federal proceedings that are governed by the Canada Evidence Act.
I would like to further indicate that the specific tests for determining, for example, whether or not the identity of a source and whether unpublished information in the possession of a journalist should be revealed are, in my submission, different from what currently is at play. Mr. Hawkes has referred to the test for unpublished information. The court is prohibited from ordering the journalists to disclose that unpublished information unless two specific statutory criteria are met. I suggest to the committee that this is quite different from, for example, the various factors that were considered in the case of R. v. Hughes, where the court was concerned with whether or not the statements of sexual assault complainants should be revealed to the defence. Those statements were in the possession of a journalist.
In that particular case, the court made reference to the importance of many different factors in balancing the interests of disclosure versus non-disclosure. They include such factors as the relevance and materiality of the evidence to the issues at trial; the necessity of the evidence to the accused's case and his or her ability to make full answer in defence; the probative value of the evidence; whether the evidence is available through any other means; whether the media's ability to gather and report the news will be impaired by being called to give evidence and, if so, the degree of the impairment; whether the necessity of the evidence in the case at hand outweighs the impairment, if any, of the media; and whether the impairment of the media's function can be minimized by confining the evidence adduced to only that which is necessary to the accused's case...[Technical difficulty--Editor]...certainly a sophisticated consideration of the pertinent factors.
Finally, in the interest of time, I'd just like to draw your attention to the fact that with regard to search warrants, currently the balancing test at play in terms of whether or not a search warrant should be issued involves a consideration of the court being required to strike a balance between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination.
You may be interested to see that the balancing test in proposed subsection 39.1(8) is reflected in one of the paragraphs, proposed paragraph 39.1(8)(b), leaving the possibility that as opposed to being the overarching determinant of whether or not a warrant will be issued, the balancing test becomes one of many criteria, all of which have to be met--and if all of them are not met, the judge is precluded from issuing the warrant. I think that is a relatively significant change from the current law.
Thank you, Mr. Chair.
Thank you for hearing our concerns.
I am a colleague of Karen Markham. I will not repeat what my colleague has said, but there are a few points I would like to raise with you.
Of particular concern to me, as the director of the national security group, is what we call the override provision--as mentioned by Karen--and the provision dealing with the other information that may be in the possession of the journalist.
The override appears to exclude the application of sections 37, 38, and 39 of the Canada Evidence Act. Those provisions are there to protect sensitive information. In particular, I simply want to briefly explain the process of protecting sensitive information under section 38 and to identify what appears to be a potential conflict with what is in the bill and what is currently in the Canada Evidence Act.
Essentially, section 38 of the Canada Evidence Act is a mechanism in place to ensure that sensitive information of the government is protected in the public interest in the context of proceedings. So the regime under section 38 will be triggered in the context of proceedings that, as Karen explained, include administrative tribunals, civil proceedings, and criminal proceedings when potentially injurious information or sensitive information may be disclosed. These are two terms that are defined in the act to mean information that would cause injury to national security, national defence, or international relations, or information that the government is making efforts to keep protected.
So essentially, in the context of a proceeding, if a participant knows that sensitive information may be disclosed in the course of the proceeding, the participant has an obligation to give a notice to the Attorney General of Canada.
The effect of the notice is to prevent the disclosure of the sensitive information, and it forces the Attorney General of Canada to look at the information, consult, and to make a decision as to whether to authorize disclosure of the sensitive information or to maintain the prohibition. This decision is also reviewable by the Federal Court through designated judges.
Both the Attorney General of Canada and the Federal Court will apply the same test: whether the information is relevant in the proceeding and whether the disclosure of the information will be injurious to national security, international relations, or national defence. Then they will do a public interest balance, which will assess what is the greater public interest in the context of the proceeding: to maintain the prohibition or disclose the information. Again, the Federal Court judge can issue an order that provides for the disclosure of all or some of the information or, in some instances, will issue a summary.
The regime in section 38, as I indicated, applies to all proceedings except those that are excluded through a schedule in the act. The proceedings that are excluded from this regime are those that already have a mechanism in place to ensure that the sensitive information remains protected in the public interest.
Where I see a potential conflict, with greatest respect to , is the override, and in particular subsection (7), which states “A journalist is required to disclose information or a record that has not been published”, but “is of vital importance and cannot be produced in evidence by any other means.” The scenario that comes to mind is that a journalist is in the context of a proceeding provided under section 39.1; therefore, he is a participant. The journalist knows what type of information he received, so he would be aware whether the information is sensitive or not. Though some of it may have already been published, we would not necessarily know if there is still more information that can be published at a later date.
So at the outset, the journalist is under an obligation to give a notice, and that will make the publication of that information prohibited. However, he may, on the other hand, be required to disclose the information if it is of vital importance.
There appears to be a conflict between his obligation to give notice and prevent the disclosure of the sensitive information and, on the other hand, to comply with a possible order of disclosure.
Also, as I indicated, the test applied by the Attorney General of Canada and the Federal Court appears to be different from the one mentioned here. I will not repeat them, but my colleague did indicate some of the criteria applicable in a national security or Canada Evidence Act application.
Again, there appears to be a conflict between the current section 38 regime and the legal test and whether that is overridden by this.
The only issue I wanted to raise is the possible risk of a vacuum. If journalists are compelled to and disclose information of vital importance, they may be ordered to disclose yet more sensitive information than they already have.
As a final point, Monsieur Ménard mentioned the Charkaoui case in Montreal. In that case, the journalists involved, Monsieur Bellavance and his colleague, had published an article in La Presse and Le Droit in which they cited a top-secret document that appeared to have originated from the Canadian Security Intelligence Service. Monsieur Charkaoui had sought access to that document by serving a subpoena to the journalist, asking him to appear and to bring the documents with him. Unbeknownst to anybody was what was in that document above and beyond the newspaper article. The Attorney General was a participant in that case and gave notice to the AG, two different groups of the Attorney General of Canada. The intent of that notice was to prevent the journalist from further disclosing information until a decision was made.
As it turned out, Monsieur le juge Noël was of the view that he could deal with that issue under section 78 of the Immigration Act, which is one that has a regime to protect sensitive information. In the end, Monsieur le juge Noël did not disclose the document but rather issued a summary, a power he has to ensure that Mr. Charkaoui could pursue his challenge on the one hand. The other public interest was to ensure the sensitive information in the document was maintained and protected, to ensure the two public interests were maintained.
That's an example of how it happened in the past. I wanted to raise the possible conflict between the current bill and the current section 38.
Thank you, Mr. Chair and honourable committee members. It's my pleasure to speak to you today about the amendments in Bill , and particularly to explain some of the practical impacts those proposed amendments would have on the Canadian Forces.
I would like to make it very clear that it's not my purpose today to question the importance of the legislation or the importance of the amendments that have been proposed, but to ensure that members of the committee are aware of some potential implications the proposed amendments have on the Canadian Forces and the Canadian military justice system. If I could classify this information, I would put it in the category that my friend Mr. Hawkes has--as unintended consequences of the proposed amendments.
First of all, as you know, the definition of journalist is defined in the proposed legislation to include any “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”.
As it's currently worded, this definition would apply to members of the Canadian Forces who are involved in activities that are not journalistic in nature. This would include members whose primary duties involve the gathering and dissemination of information to the public, such as public affairs officers. As well, the definition would include members who make regular contributions to Canadian Forces publications for the purpose of raising awareness on topical issues such as military personnel policies and information on compensation and benefits. Furthermore, anyone who provides assistance to those who gather and disseminate this type of information, such as computer technicians or administrative clerks, would also be covered by the definition.
The potential impact of having the definition of journalist apply to Canadian Forces members arises from the conflict that could emerge between the protections proposed under this bill and the obligation on military members to report breaches of discipline. Military regulations require members of the Canadian Forces to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders, and instructions governing conduct. Given the broad definition proposed for journalists, there is a real potential that conflicts will arise.
Second, as you are aware, the proposed amendments will apply not only to judicial proceedings but also to non-judicial proceedings over which Parliament has jurisdiction. Under the National Defence Act, that would include boards of inquiry, which can be held both in and outside of Canada. According to the proposed amendments, in order to compel journalists to disclose the identity of a source during a non-judicial proceeding such as a board of inquiry, it would be necessary to adjourn the proceeding and seek a judicial order. The potential logistical impact of this requirement is compounded by both the breadth of who can be considered a journalist, if the present definition is maintained, as well as the fact that boards of inquiry can proceed outside of Canada. There would be a requirement to seek an order back in Canada in order to proceed with that inquiry.
Furthermore, when determining whether it is in the public interest to compel the disclosure of a source, a judge is required under proposed paragraph 39.1(5)(b) to consider three factors, which have already been discussed: the outcome of the litigation, the freedom of information, and the impact of the journalist's testimony on the source.
The narrow construction of these factors would make it difficult to apply them in the context of a non-judicial proceeding, such as a board of inquiry, which is an investigative tool, not a tool for litigation, or to consider other potentially relevant factors, such as operational or national security, which would be very relevant in the types of non-judicial proceedings that could arise in the context of the Canadian Forces.
Honourable committee members, I would like to thank you for allowing me this opportunity to raise these practical matters with you. I'd be very happy to answer any questions you may have.