I will call to order this 71st meeting of the public safety and national security committee. Welcome to everyone.
Welcome, Mr. Nicholson and Ms. Gallant. It's good to have you with us.
Pursuant to the order of reference of Friday, June 9, which was 10 days ago, our topic for today is Bill , an act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).
We will have two panels of witnesses. The first panel will be the sponsor of the bill in the House, the originator of the bill in the Senate, and a collaborator on that bill. Our second panel will be members from the Canadian Media Coalition. I just heard from the clerk that Mr. Tom Henheffer, the executive director of Canadian Journalists for Free Expression, is delayed in transit, unfortunately. There have been airplane cancellations, so it is unlikely that he'll be with us today.
I also want to note for the committee that we attempted to get witnesses from the RCMP, the OPP, and the Canadian Association of Chiefs of Police. However, due to short notice as the principal reason, they're not able to be with us today. The Association of Chiefs of Police did submit a written brief. It is a fuller brief than what they were able to present at the Senate hearings on this bill, so I would commend it to your attention as well.
We'll begin the first panel with Senator Carignan, Senator Pratte, and Monsieur Deltell. I understand that we can expect the bells to ring at some point for a House of Commons vote. At that point I will seek unanimous consent to consider going a little longer. We'll just see where we are when the bells ring.
Who will begin?
Yes, I can start. Thank you.
Mr. Chair, members of the Standing Committee on Public Safety and National Security, I would like to thank you for agreeing to study Bill so quickly.
The bill addresses a fundamental issue, freedom of the press, a pillar of our democracy safeguarded by section 2 of the Canadian Charter of Rights and Freedoms. As my colleagues will tell you, I care deeply about the Canadian values that the charter embodies.
As a lawyer, a parliamentarian, and an engaged citizen, I was astounded by the revelations this past fall that journalists were being spied on, so I decided to do something about it by introducing Bill . It seeks to plug a legislative hole, and because of that hole, our current rules are completely out of step with what is expected of us, as a developed country ruled by the highest democratic standards.
The tangible benefits of this bill are many.
First, Bill recognizes the fundamental role of journalists in our democracy; protects the privilege of journalistic sources' secrecy, which legislation has yet to explicitly acknowledge; and seeks to protect whistle-blowers. Once the bill is passed, only a judge of a superior court—in Quebec, a Quebec court judge within the meaning of section 552—may issue a search warrant relating to journalists.
Immediately upon execution of a duly authorized warrant, the information collected will be sealed by the court and none of the parties is allowed to access the content without the judge's permission.
An officer wishing to consult sealed information relating to a journalist must send the journalist and media outlet a notice informing them that they wish to do so. The journalist and media outlet will have 10 days to oppose the officer's request for disclosure if they believe the information could likely identify an anonymous journalistic source. If the journalist objects to the disclosure, the onus is on the officer making the request to show that the information is crucial to further the investigation. The burden of proof is thus reversed.
An objection may be raised before any court or federally regulated body. The organization or tribunal may raise an objection on its own initiative. Bill protects the rights of all parties. It enables journalists to protect the identity of their sources and police authorities to complete their investigations. Finally, this act will put an end to potential fishing expeditions or source hunts.
In closing, I will say this: the media play an essential role in disseminating information and sparking public debate on important issues. Without journalistic sources and whistle-blowers, journalists could no longer perform their essential role in our democracy. Canadians, deprived of their fundamental right to be informed, would be the big losers. Those who abuse their power or misuse public funds would continue to get away with it, to the detriment of all Canadians.
It is up to us, as parliamentarians, to establish the necessary safeguards to protect journalistic sources and thus preserve freedom of the press and the public's right to be informed.
Thank you, Chair.
“Democracy dies in darkness”: this has been The Washington Post's slogan for a few months now. Like all slogans, it does not really need an explanation. It says it all. Without the spotlight shone by the media on public and private institutions, on those who govern us, citizens lack information and are therefore not able to properly play their role. Democracy collapses.
Unfortunately, even major media outlets, those who have the most resources in terms of investigative reporting, those who are equipped with the most powerful spotlights, can't see everything. You first have to know where to look. Then there are always the shadows, the places where incompetent or dishonest people hide to do their dirty work.
To spot these shadows and bring them to light, journalists need help. Let's call them “lamplighters”, the people inside who secretly light a candle that pierces the darkness and alerts the media, telling them where to turn their spotlights. These lamplighters are the sources. Because they betray the incompetents and the cheats, sources often take great risks. If they're discovered, they may lose their jobs. The punishment may be even heavier if a criminal organization is involved.
Journalists' sources must therefore be protected. That means journalists must be able to keep their sources' identities confidential, except in very special circumstances, even in a court of law and even in a police investigation. This is the only way journalists can reassure their sources and get them to come forward.
Canada does not have a shield law specifically protecting journalistic sources. The recent events in Quebec, involving journalists who were the targets of widespread police surveillance, are troubling not just for journalists, but also and above all, for their sources and society as a whole. If sources are not assured of confidentiality when coming forward and revealing their story to someone in the media, they will remain silent, and if that happens, darkness falls.
What happened shows that existing legislation is inadequate to protect journalistic sources. It is too easy to obtain warrants for surveillance. The case law would benefit from clarity around the protection of the identity of sources as regards the courts, and that is what Bill seeks to do.
I know that here, on the Hill, we often criticize the media and journalists, but we must take great care not to forget the essential role they play in our democracy. Of course, like those in every other occupation, some journalists are better than others. Naturally, they are highly critical of the work parliamentarians do, but thank goodness for that, because without their scrutiny, who would keep politicians in check? It goes without saying that they are always on the lookout for things that go wrong, and that can be very frustrating. If they weren't, however, who would let citizens know that all wasn't right with the government?
Warts and all, the media play a fundamental role in our democracy. Without confidential sources, they could not play that role. Let me insist on this: Bill aims to protect not journalists but their sources. They are the ones who need protection, because they are the ones who risk their friendships, and sometimes their families and their jobs, because they feel duty bound to inform Canadians of what they know.
Passing Bill would be a historic step forward for freedom of the press in Canada, in fact the most significant advance in decades. At a time when south of us the press has been attacked in a way it has rarely been attacked before, Canada would send a powerful message on the importance it attaches to this fundamental right guaranteed by our Charter of Rights and Freedoms.
More concretely, journalists' sources, those courageous and lonely lamplighters, would finally be protected for the greater good of Canadian democracy. The flame of a simple candle is fragile, but as long as it is protected from the storm and extinguishers, it is enough to make light, and under the light, democracy shines.
What a pleasure to be here with you again, a year after our time together on the Special Joint Committee on Physician-Assisted Dying.
Colleagues, good afternoon and welcome.
I am very honoured and proud to be appearing before you today as the member sponsoring the bill in the House of Commons, as well as a former journalist.
Mr. Chair, let me pay my respects to our colleagues from the Senate: Senator Claude Carignan, who worked so hard, so fast, and so well, with the support of colleagues like Hon. André Pratte, and all the other people in the Senate who worked to table this important piece of legislation.
As far as I am concerned, this bill is very correct, because it respects every aspect of our society.
To begin with, Bill correctly defines what a journalist is, in my view. The underlying principle is the protection of the journalistic source, not the journalist. That may seem like an obvious distinction because journalists make mistakes, like everyone else, but sources wishing to come forward with information must be protected. That is what this bill seeks to achieve.
One of the bill's many merits is the fact that, going forward, only superior court judges would be allowed to determine whether investigations pursuant to search warrants could proceed. Experience has unfortunately shown that they were sometimes issued too hastily by peace officers. In the case of Montreal's police force, the SPVM, such requests were granted 98% of the time.
The bill also reverses the burden of proof and ensures that the execution of a warrant relating to a journalist is truly the last resort.
A few of my colleagues may recall that in Quebec, in the last month, it was a real turmoil situation for journalists.
This past October, we found out that journalist Patrick Lagacé had been the target of 24 surveillance warrants by police in recent years.
To give you an idea of the type of individual we are talking about, I will tell you that Mr. Lagacé is a seasoned journalist with over 20 years of experience and recognized by all Quebecers as an established journalist. If he were in the military, he would be active in all three forces. As a journalist, he works in television, print, and radio, and has a daily column. He is a seasoned journalist who was put under police surveillance, further to a warrant, 24 times, and that obviously raised considerable concern in Quebec.
More revelations followed. It came out that some 15 journalists in Quebec had also been put under police surveillance; they were all very experienced and worked mainly in investigative journalism. Patrick Lagacé, Vincent Larouche, Marie-Maude Denis, Alain Gravel, Isabelle Richer, Éric Thibault, Denis Lessard, André Cédilot, Nicolas Saillant, Félix Séguin, Monic Néron, Joël-Denis Bellavance, Gilles Toupin, Daniel Renaud, and Fabrice de Pierrebourg had all been the subject of a police investigation by the Sûreté du Québec, SPVM, or RCMP.
We see Bill as a fair and balanced response to an intolerable situation.
In my final notes, Mr. Chair, let me just remind you that 45 years and one day ago, a newspaper named The Washington Post published a small article about a burglary that happened in the Democratic Party headquarters in Washington. The Democratic Party headquarters was situated in a building named Watergate. Two years later, all the world recognized what happened there, and it also recognized the importance of whistle-blowers. This is what this bill wants to protect.
Thank you for your question.
Initially, the definition was much broader. Both the coalition of Canadian media and police forces thought the definition was too broad, and could include bloggers working for free in their basements. That was problematic for police officers in terms of when the legislation would apply. They weren't quite sure when they would need to request a search warrant. They could not guess that a journalist was involved, even using reasonable means to verify the person's identity. Police organizations therefore had concerns and feedback around the application of the legislation.
In addition, some media outlets wanted to make sure it extended protection to journalists who earned their living working for a media organization, be it a weekly local paper or a web-based publication, but at a certain professional level. They wanted to make sure that not just anyone could claim protection of sources, so they proposed a definition of what a journalist was. There was consensus on the definition, which had the backing of such associations as the Quebec Press Council, I believe. I was in favour of their request.
I have here a passage from the Supreme Court's ruling in R. v. National Post, which establishes limits on what constitutes a journalist.
It reads as follows:
||To throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.
That statement refers to the weight given to a blogger's source as compared with a professional journalist's source. Even the Supreme Court saw a problem with that, so that is why I agreed to make the necessary corrections to the bill.
I think there was a huge debate in the last general election, and we all recognize that all the parties had straight positions.
It's very touchy when we talk about funding Radio-Canada/CBC because, as we know, this is a press group, and a press group shall be independent from any political power.
So the responsibility belongs in the hands of all journalists, and when I talk about hands, I talk about the fingers, the ones that hold the pencil, the ones that hone the machine, the ones that write or say something about the actual government. You always have to remember that when you work at CBC—during my 20-year career, I worked there for two years, and I know what I'm talking about—you have to think about the interests of the people, period.
You never have to add any political agenda, but for sure, when you see a huge debate surrounding the financing of this public institution—because it is a public institution—the responsibility belongs to every journalist to be frank, to be honest, to be equal, and to be non-partisan.
That's quite a good question, Madam Gallant. I do appreciate that. I will start an answer, but I'm sure my colleague, Senator Carignan, will be more accurate than I am.
The bill is designed to protect the whistle-blower but to let the journalists do their job, but if the policeman is going to make an inquiry regarding a journalist, then, first, it must be the last step of the inquiry, and second, he has to convince a judge, a superior court judge, not a juge de paix, as we have now in Quebec. As I said in my presentation, in the whole administration—if we pass the bill—in 98% of the inquiries made by the SPVM, which is the municipal police in Montreal, they get it from a juge de la paix.
This is why we made it tougher for a policeman to make inquiries about a journalist, to be sure, first of all, that this is the last step of his job, and second, that it has been approved by a superior court.
This is my personal and first-draft answer, but I'm sure Senator Carignan will be more precise.
Senators, Mr. Deltell, thank you for being here.
I don't often do this in the presence of witnesses, but I'm going to take a moment to editorialize a bit, which may not be entirely inappropriate given what we were just talking about.
It was mentioned that we weren't able to get any witnesses from police organizations because of the short notice. That's an interesting point, because, for far too long in Canada, the balance of power has been all too often tipped in the police's favour when it comes to cases involving journalists. I think that's why we are seeing these abuses. Contrary to claims, those abuses are not limited to Montreal or Quebec police. There are cases involving the RCMP as well. Mr. Bellavance, of La Presse, among others, could speak to that.
The other thing that I think is worth pointing out is there was a piece just today where Canada has fallen another four places to number 22, after falling 10 places last year in the press freedom index, which is very edifying. Given that the U.S. and the U.K. have already had this type of journalistic shield law in place for many years, I certainly want to be on the record as saying we need to get this done as quickly as possible.
That said, I have some questions mainly for the senators, because they are the ones who heard from witnesses in the Senate on certain provisions in the bill.
Mr. Carignan, you talked a bit about a journalist being investigated in a case that does not necessarily involve a source being identified. Given what you heard from the Canadian Association of Chiefs of Police, for example, do you think the current version of the bill provides enough flexibility? In fact, it's important to make sure that the bill doesn't create a loophole that police can take advantage of to claim that they are investigating a journalist for another reason entirely—be it fraud or what have you—when they are actually trying to discover the identity of a source through the back door, if you will.
Do the police organizations and other stakeholders you heard from see the current version of the bill as appropriate in that regard?
I don't mean to cut you off, but I only have so much time. I get just one turn.
I wanted to discuss clause 2, which seeks to add paragraph 39.1(2), known as an override provision, to the Canada Evidence Act. The provision reads as follows:
||(2) This section applies despite any other provision of this Act or any other Act of Parliament.
I'd actually like to hear your thoughts on the importance of the provision. When an act of terrorism, some form of violence, or another crisis occurs in any country, people feel the need for heightened security measures. I'm a bit biased, but that's what I observed during the debate on Bill . The October crisis, in Quebec, comes to mind as well.
Do you think this provision is important to make sure that, in such situations, national security cannot be used as an excuse to undermine freedom of the press?
I'd like to hear all of your opinions on that, if possible.
That's very kind. Thank you, Mr. Chair.
I would like to thank all three of you for your championship of this bill and for bringing it to us. It's a very important subject.
Senator Carignan, you said it very well, that the profession of journalism is a pillar of our democracy. It's an institution that very much falls into the fabric of Canada's democracy, and yet there are challenges. It's a complex subject. It's as much about the bill that's before us today as it is about the financial aspects of the profession, the financial challenges, the structural changes, and the employment relationship that journalists face today. The media environment is transforming, with so much information now making its way through social media to us.
I also want to put it to you that there is a prospect of people using the vehicle of journalism to do us harm. I sit on the defence committee, in addition to this one, and the whole paradigm of fake news and intentional misleading through journalistic channels is something we need to take very seriously. I want to echo my colleague Pam Damoff's concerns that we do not have representatives from the police forces in front of us this afternoon, even though we have a written brief.
The subject matter is complex. In addition to having the aspiration of being expedient with this bill, the committee also needs to be mindful of the various facets and aspects of this important piece of legislation.
Senator Pratte, I would like to ask you to give to the committee, and also Canadians, your snapshot of the state of the profession as it exists in 2017, and how you see it evolving over a short-term horizon, say, the next five years. What is journalism all about these days? What does the committee need to be mindful of when we talk about a bill such as this one, even though this might be only the first step, as my colleague just pointed out?
Mr. Chair and members of the committee, good afternoon.
My name is Jennifer McGuire. I'm the general manager and editor-in-chief for CBC News. I wish to thank all of you for this opportunity to address this important topic once again.
I'd like to stress right up front how important we feel Bill is. I can say on behalf of our coalition of media organizations that speedy passage and implementation of Bill S-231 would be a great service to the country.
Why do I say this? Because investigative journalism is a vital component of a healthy democracy. It shines light on issues that matter, whether those are sexual assaults on Canadian campuses, questionable offshore tax havens, or unethical real estate practices—the sorts of stories that pave the way for legislators to make better public policy.
This journalism frequently relies on people who are brave enough to tell their stories and to share stories that would otherwise be untold: sources, especially confidential sources. It also relies on a journalist's ability to protect these sources. Today in Canada that ability is undermined because it is too easy for police to obtain a warrant allowing them to conduct surveillance missions on reporters.
Late last year, we learned that some of Radio-Canada's top investigative journalists were being spied upon by the Sûreté du Québec. Five years of their phone records were asked for; some of the journalists had their locations tracked, and all of them had their freedom infringed upon, all because police wanted to know who their sources were.
It's bad enough that these journalists were spied upon by the authorities, but consider the impact this news had on their ability to do their jobs. What confidential source would share information knowing they could not rely on any protection a journalist might offer? What whistle-blower might decide that it's better to stay quiet rather than risk being swept up in a police investigation? By scaring confidential sources into silence, we will never know how many cases of wrongdoing remained secret and how many cover-ups were made possible.
Right now, the bar for obtaining warrants to conduct this type of surveillance is far too low. As just one example, dramatic testimony in recent weeks at the Chamberland commission in Quebec has shown us that even baseless sexual innuendo can be enough.
Last Thursday, Radio-Canada's Marie-Maude Denis testified that one of the justifications made by police for spying on her was that she had an intimate relationship with another police officer who was one of the targets of the investigation. I want to point out that this was completely false and based on no credible information. That police made this allegation before a justice of the peace was shameful. That it was persuasive is frankly depressing.
The clear implication was that successful women in journalism use sex as a way to get information. If you need proof that the bar for obtaining a warrant needs to be higher, look no further.
Let me be clear: we realize that there must be exceptions. When a journalist is legitimately suspected of a crime, police may well have a good reason to track their activities. If it can be shown that there is no link between the investigation and the journalistic activities, then the suspect should not be able to invoke their profession as a shield, but as soon as the nature of the investigation has a link with the practice of journalism, then the protections of Bill should apply in full force, and this decision rests properly with a superior court judge.
Thank you for your time. I will pass this on to my colleague, Michel Cormier.
Hello. Thank you for having us.
I’m Michel Cormier, the executive director of news and current affairs for Radio-Canada's French services. I'm the boss of Marie-Maude Denis and other Radio-Canada journalists who were electronically monitored by the Sûreté du Québec.
Radio-Canada and the Canadian Media Coalition appreciate the government’s support for the bill being shepherded by .
Confidential sources, whom this bill is designed to protect, are essential to investigative journalism. No one disputes this fact, which was recognized a number of years ago by the Supreme Court of Canada. However, the past few months have shown us that the existing police and judicial system falls short of providing adequate protection for journalistic sources.
Over the last few weeks, the Chamberland Commission hearings have given us an opportunity to hear what motivated police officers to obtain the telephone records of several journalists, including three of Radio-Canada’s most distinguished investigative reporters. Their grounds were inadequate and their methods were doomed to failure.
In our opinion, the testimony at the commission of certain police officers involved in monitoring the journalists demonstrated to what extent our reporters and their sources were victims of abuse of authority. It has been acknowledged that the order issued by a presiding justice of the peace granting access to five years’ worth of records of journalists’ incoming and outgoing telephone calls, and, in two cases, their physical locations at the time of the calls, proved nothing regarding the crime under investigation, a potential leak of wiretapping information. However, it substantially jeopardized the identity of the journalists’ sources.
In our view, this was clear from the very start. As a number of police officers have testified at the commission, far too many people had access to the wiretaps, and simple telephone contact between police officers and journalists proves nothing. So, why did they request access to five years of call logs? These questions could have been asked by the presiding justice of the peace. Indeed, they should have been asked, but clearly weren’t, since the orders were issued without further proceedings.
I would ask you to reflect for a few seconds on what that means. The police officers gained access to call logs that could reveal the identity of confidential sources, although anyone could see, right from the outset, that the logs would serve no purpose. Breaching the confidentiality of journalists’ sources through these court orders wasn’t only completely pointless, but also a serious abuse of authority.
The police officers in question were or should have been aware of this fact before requesting the first of the court orders. However, the system completely failed to stop them.
According to Reporters Without Borders, as the member said, Canada did not rank among the top 20 countries for defending freedom of the press this year. Several other democracies and even some American states have laws protecting journalistic sources.
This bill must be adopted to change things, and to ensure that confidential sources will be protected and that never again will a police force in Canada be authorized to spy on journalists without regard for their sources and the crucial role they play in a democracy.
However, the coalition would like to stress that one of the proposed amendments creates a loophole in the protection of confidential sources. The new subsection 488.01(4.1) would exempt any order from the act when it’s alleged that a journalist has committed an infraction. If this amendment is adopted, it would suffice for investigators to claim that they suspect a journalist of having worked with a whistleblower for all protections afforded under Bill to be completely voided and for sources' identities to be revealed.
This loophole would encourage unjustified allegations against journalists, whereas no investigations involving journalists in the past have ever led to charges being laid against them.
Our proposal provides what we feel is a fair solution to this problem. It ensures that, in the case of journalistic work, the judge applies the test outlined in Bill before approving the warrant, while exempting investigations into common law crimes from this requirement.
We're very satisfied with this bill. Not only will it put an end to abuses of authority and restore journalistic sources’ trust in the system, it will allow Canada to join those jurisdictions that legally protect all these brave people who come forward to expose unacceptable situations and whose actions contribute to a freer and more democratic society. That said, we ask that you pay special attention to the suggestions detailed in our factum.
I apologize for being late. I think we've all had experiences with Porter Airlines before. Thank you for allowing me to testify.
I am speaking today as executive director of Canadian Journalists for Free Expression, CJFE, a non-profit, non-governmental organization that works to promote and protect press freedom and free expression around the world. We would like to use our time today to speak to the importance of passing the legislation now, the definitions in this bill, and the amendments proposed by the government.
CJFE strongly supports Bill , the journalist sources protection act. If passed today in its present form, Bill S-231 would be the country's first journalistic shield law, bringing us closer to compliance with international standards for the protection of sources. This is a badly needed bill, and its coming into force would be an important step forward for press freedom in Canada.
As recent events in Quebec and elsewhere in Canada demonstrate, journalists today are vulnerable to arbitrary and summary treatment concerning search warrants and production orders with regard to sources. Bill was first introduced last November, following appalling revelations that police had obtained warrants to track La Presse journalist Patrick Lagacé's phone and to monitor the phone calls of several other journalists.
Canada needs this bill now more than ever. In addition to the reports of Quebec police spying, no fewer than four Canadian journalists have been arrested this past year. VICE News' Ben Makuch continues to fight a court ruling forcing him to hand over communications with a source to the RCMP. Justin Brake of The Independent faces up to 10 years in prison for reporting on a protest. Cori Marshall, a freelance journalist in Montreal, was spuriously charged with unlawful confinement for simply covering a protest inside a government building, charges which were dropped in large part due to CJFE's intervention. Photographer David Ritchie and Global News videographer Jeremy Cohn were arrested by Hamilton Police Service for their coverage of a pedestrian collision. David Ritchie, as has just hit the news today, has now been remanded and is still facing a court date for these charges on July 20.
Canada fell four places on this year's Reporters Without Borders world press freedom index. In recent years, we've dropped from the top 10 to 22nd in the world, largely because journalists in the country are not currently protected by any shield law.
Despite our suggestions to improve this bill, which I will lay out in a second, we believe this is significant and necessary legislation, and we would impress upon committee members the importance of its swift passage. Let me be clear: Canada needs this legislation to be in effect today. However, passage of this bill in its present form is only a first step to addressing many issues facing journalists in Canada today. This is because many of the definitions are still too restrictive. Further reforms will be required in the future so these protections reflect the reality of Canada' s modern media landscape, but we do not believe that this should prevent the passage of this bill in this session.
For example, the bill has a narrow definition of who can legally call themselves a journalist. We would suggest the definition should eventually be widened to reflect the emergence of newer practitioners of journalism, such as bloggers, and to include the many journalists who would not list the craft as their main occupation, such as student journalists and freelancers. They also deserve to be covered under this law.
We endorse the amendment proposed by Matthew Dubé to broaden the definition to:
||any person who contributes directly, either regularly or occasionally, to the collection, writing or production of information for dissemination by any media, including newspapers, magazines or other print media, or television, radio, online dissemination or other electronic media, or any person who assists that person in doing so.
We see similar problems in the current definition of a journalistic source, which reads:
||a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source.
The deficiencies in this definition are vividly demonstrated by the ongoing case of Ben Makuch of VICE News. Makuch is currently seeking leave to appeal to the Supreme Court a court order to turn over his communications with his source to the RCMP. The order against Makuch sets a precedent that is potentially ruinous and has wide-ranging implications for press freedom and the integrity of journalism in Canada. While we strongly support Bill , it must be stated that this will provide no protection in the context of the Ben Makuch situation because, although his source refused to disclose his identity, he did not conform to the strict definition of a confidential source as defined in this bill. This leaves our country open to a situation in which a young Canadian journalist could soon be behind bars for simply doing his job.
Clearly, this demonstrates a need for stronger legal protections. Again, we believe this can be fixed in later legislation and this should not prevent this bill from passing in its current form. Requiring an undertaking of confidentiality is problematic, as sources, by their nature, are confidential. Journalists and their editors have a right to decide which parts of an interview are published publicly, regardless of whether that interview was with a confidential source or for attribution.
The definition we propose is as follows: “journalistic source” means any source that transmits information to a journalist. This is broader than the current bill, but there are two reasons for this. One, since a court or police agency cannot know whether a source is in fact “confidential” or not in advance, this should not be part of the threshold that triggers special care. Two, as in the Makuch situation, compelling information about any source, whether or not they meet the strict definition of a confidential source, has a chilling effect. While this change may be outside the scope of consideration for the current bill, the protection of sources that are not anonymous must form a part of further discussion and factor into future measures to protect press freedom in Canada.
The government proposes to amend the wording of proposed subparagraph 39.1(8)(b)(i) to replace the word “essential” with “important”. We believe this change would undermine the principle of the bill and be inconsistent with existing protections. Existing jurisprudence says that it must be a last resort to force the media to pass over information. Setting the threshold for information at “important” falls short of this standard.
The government proposes that the requirement to demonstrate that “due consideration was given to all means of disclosure that would preserve the identity of the journalistic source” become a separate criterion, applicable at each stage of the analysis, rather than a specific branch of the test provided for in proposed subsection 39.1(8). We support this change.
The government proposes that the additional conditions for the attainment of a warrant would not apply in cases where the journalists themselves are suspected of criminal activity. This is meant to prevent the application of Bill in a context outside of journalistic activities. The Media Coalition has offered remarks regarding this matter and has offered a suggested amendment, both of which we strongly endorse.
The government proposes that the precedence clauses of proposed subsections 39.1(2) and 488.01(2) be withdrawn from the bill, and has expressed its belief that these clauses would unduly affect privacy and national security laws. As the wording of proposed subparagraph 39.1(8)(b)(i) already provides for the disclosure of information or a document that is essential for public safety, we believe the government proposal would unnecessarily undermine the effectiveness of the act.
We thank those who spearheaded this effort, including Senator Carignan and Mr. Deltell. CJFE would also like to commend the Liberal government for its support of Bill . It is a promising, concrete follow-up to 's previous strong statements of support for press freedom in Canada, and will help establish Canada's position as a world leader on this issue.
I'll share my speaking time with my colleague, Mr. Arseneault.
I want to welcome the witnesses and thank them for being here.
First, I want to say that I have great respect for journalistic work. A number of years ago, in another life, I was at times a journalist's source, contributor and coach. It's an essential and necessary occupation. We must do our best to support the work of journalists.
That said, the bill concerns the protection of sources. We spent an hour discussing the definition of “journalist”. However, I think the focus must be on the sources themselves. Our approach must also be current and contemporary
How would you assess the Chamberland Commission's current work? What do you expect from the report the commission will release?
I think that really is crucial. Again, I believe that the bill in its present form is still worth passing. I would strongly recommend that the committee adopt this amendment by Mr. Dubé.
A lot of times I've heard people say that just because someone tweets doesn't mean they should get protection of it. Just because someone is a blogger doesn't mean they're necessarily a journalist simply because they maintain a blog, and that they should not get this protection. I have more faith in the judges in this country to be able to distinguish between someone who has tweeted occasionally or had a blog or something like that who would claim these decisions. I believe that the judges in our country are well enough trained to be able to tell the difference.
The fact is the nature of journalism has changed. Many journalists now are freelancers. They are not getting paid for it as their primary job. A lot of journalists get 60% to 75% of their income from writing technical manuals or speeches or things like that and the rest of their journalism is a passion project.
There are organizations out there like Discourse Media on the west coast, the Halifax Examiner on the east coast, VICE News in Toronto, and CANADALAND, which everyone is familiar with, that rely on freelancers, many of whom might only write one or two stories for them a year, but which could have extremely important impacts on Canada. Often, depending on the type of outlook and the stories they're working on, they will have confidential sources whom they need to speak to in order to get this information, and yet they would not be covered by this very narrow definition of a journalist. That is why we feel that it needs to be somewhat broader so that it is left up to a judge, and a judge can make the decision as to whether someone should fall under this protection.
If I could, I'll add a little bit of extra context on the state of journalism in this country. First of all, as the panel's resident millennial, I suppose—
Voices: Oh, oh!
Mr. Tom Henheffer: —I'd like to say that my generation does consume news ravenously. There's more of an appetite out there for news than there ever has been. The problem is that in our country the news industry has literally been decimated, if not more than that. I mean that in the literal sense. A tenth has been destroyed, and probably quite a bit more than that.
I cut my teeth at Macleans magazine. When I was there, I believe there were 50 people working in the editorial side of the newsroom. Now there are approximately 15. That's in a matter of 10 years. That's a frightening decline, and it's one that we've seen across the country.
I like to look at the journalism industry in this country as being like a forest or a jungle and that large parts of it, unfortunately, have been completely burned to the ground. But that has left us some fertile soil, and there are some new things sprouting up. There are a lot of organizations that are doing really wonderful things despite these challenges. I think CBC is an excellent example of what we've had, but it's the same thing with The Globe and Mail and Toronto Star, the legacy media.
The thing is, there is still a massive hole in this country. While people are ravenously devouring content, there aren't as many people providing good, quality content. There's more noise and less signal out there now. Also, because sources are drying up, we need legislation like this to give journalists as much of a fighting chance as we can and to make this pillar of democracy as strong as possible. Taking away those sources by not having a shield law is a serious issue.
Maybe it was from that. I don't know when or where it happened.
We begin clause-by-clause of the bill now. We welcome Mr. Wong and Mr. Noël from the Department of Justice, who are here to help us with any questions we have. Monsieur Méla is here as our legislative clerk to help us with any procedural questions we have regarding our clause-by-clause process.
We are going to begin. As is our custom we will postpone clause 1, the short title.
(On clause 2)
The Chair: As you can see from your amendment package there are three amendments to clause 2.
I am going to note for the committee that there was discussion about the eligibility of NDP-1 and whether or not it was within the scope of the bill. I have read it and have decided that yes, it is within the scope of the bill, because the scope of the bill is broadly the protection of journalistic sources. So I think it is appropriate for us to begin with it.
I will turn to Mr. Dubé if he would like to move that amendment.
Are there any questions or comments?
(Amendment agreed to [See Minutes of Proceedings])
(Clause 3 as amended agreed to)
The Chair: Shall the short title carry?
Some hon. members: Agreed.
The Chair: Shall the title carry?
Some hon. members: Agreed.
The Chair: Shall the bill as amended carry?
Some hon. members: Agreed.
The Chair: Shall the chair report the bill as amended to the House?
Some hon. members: Agreed.
The Chair: I will report it as soon as we are able to clean up the text.
I think that complete the business before the committee.
You guys didn't have to work too hard today.
Voices: Oh, oh!
The Chair: You should have seen the last officials we had here for clause-by-clause.
Voices: Oh, oh!
A voice: I heard.
The Chair: You got it easy. You owe them one.
All right. Seeing there is no other business, the meeting is adjourned.