Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 23 - Evidence - March 1, 2017
OTTAWA, Wednesday, March 1, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), met this day at 4:17 p.m. to give consideration to the bill.
Senator George Baker (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good afternoon and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we continue our consideration of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).
Joining us as witnesses for the first hour are, from the Canadian Police Association, Mr. Tom Stamatakis, President, who is joining us from Vancouver via video conference; from the Canadian Association of Chiefs of Police, Superintendent Kevan Stuart from the Criminal Investigations Unit of the Calgary Police Service; and Rachel Huntsman, who we know from previous meetings and we know from case law is a legal expert who will give the first presentation before the committee.
Rachel Huntsman, Legal Counsel, Royal Newfoundland Constabulary, Canadian Association of Chiefs of Police: Distinguished members of the committee, thank you for the invitation to speak on the important issues relating to Bill S-231. I'm Rachel Huntsman, legal counsel to the Royal Newfoundland Constabulary, and I'm here on behalf of the Law Amendments Committee of the Canadian Association of Chiefs of Police. I'm speaking on behalf of the president and fellow members. I'm joined here at the table by Superintendent Kevan Stuart with the Calgary Police Service.
Let me begin by stating that the importance of the press in a democratic society has been repeatedly affirmed through Canadian legal history. As well, section 2(b) of the Charter specifically protects the freedom of the press and freedom of expression.
In the case of R. v. National Post, the Supreme Court of Canada confirmed that the journalist-source privilege would be decided on a case-by-case basis following the four Wigmore criteria. The Supreme Court of Canada unanimously ruled that the onus of proof rests on the media to meet all four Wigmore criteria before the journalist- source privilege arises.
The Canadian Association of Chiefs of Police is of the view that the Supreme Court of Canada has provided sufficient guidance through jurisprudence in this area, most notably in the National Post case. However, should Parliament deem it necessary to enact legislation to codify a regime to protect journalist sources on a case-by-case basis, consistent with the National Post decision, we offer the following comments.
Timing of the bill: Arising from recent events in Quebec concerning police investigations involving journalists, the Government of Quebec on November 11, 2016, created a Commission of Inquiry on the Protection of the Confidentiality of Journalist Sources with a one-year mandate. The CACP questions whether this committee might benefit from hearing the recommendations of the commission when considering this bill.
Reversal of burden of proof: In the National Post case, the media accepted the burden of proof on the first three Wigmore criteria but argued that the onus should shift to the Crown to show why disclosure should be ordered on the fourth step. The court called this a "three steps forward and one step backward argument'' and firmly rejected it.
Although the Supreme Court of Canada has clearly ruled on who bears the onus of proof and why, the proposed amendment to section 39 of the Canada Evidence Act now reverses this onus of proof. The Supreme Court of Canada clearly stated that if the media is advancing the proposition that the public interest in protecting its secret source outweighs the public interest in the criminal investigation, the burden of persuasion lies on the media. The proposed amendment to section 39 of the Canada Evidence Act, in our respectful submission, should not reverse the onus of proof.
Definition of "journalist'': Testimony before this committee shows there has been much debate about the definition and, as well, what is meant by the term "media'' within this definition. This definition is very broad and needs to be carefully considered and clarified. If lawyers, senators and representatives of the media are having this debate, imagine the challenges faced by the front-line police officer. This definition is pivotal because all other sections of the proposed legislation hinge on this definition.
In addition, the proposed amendments require the police officer to give notice to the relevant media outlet. How is "media outlet'' defined? In this digital age, this will be very challenging for the police. In the world of Twitter and Facebook, are the administrators of social media sites to be considered media outlets?
The proposed warrant amendments to section 488 are problematic. The bill's amendments to the warrant provisions have created a completely separate process for journalists, even if the criminal investigation has nothing to do with their profession. For instance, if a journalist is the target of a criminal investigation, such as impaired driving causing bodily harm, and the police require a search warrant to seize an exhibit, there is now a separate process created for the individual who happens to be the journalist. Although the intent of this section could not have been to create a special protection which does not exist for any other citizen of Canada, this section does precisely that.
Second, how is the police officer to know that the subject of the investigation is a journalist? Although all citizens have a right to silence, should there be an onus on the citizen to identify himself or herself as a journalist?
Third, the notice and review provisions should not be legislated but should be left to the discretion of the issuing justice.
Fourth, the Criminal Code permits search and seizure without warrant where grounds exist for a warrant but by reason of exigent circumstances it would be impracticable to obtain a warrant. The proposed wording "Despite any other provision of this Act or any other Act of Parliament . . .'' eliminates this important search and seizure provision.
In conclusion, the recommendation of the Canadian Association of Chiefs of Police is to remain with the protections provided by the Supreme Court of Canada, most notably in the case of the National Post.
Not all sources or whistle-blowers should be provided the broad and sweeping protections provided under this bill. Privilege should be decided on a case-by-case basis. Furthermore, it may be of value to this committee to await the findings of the Quebec commission of inquiry before moving ahead with this bill.
Thank you and I look forward to answering any questions you may have.
The Deputy Chair: Thank you.
Superintendent, do you have a few words to say?
Kevan Stuart, Superintendent, Criminal Investigations Unit, Calgary Police Service, Canadian Association of Chiefs of Police: It was very well laid out. The biggest thing for us is the definition of "journalist'' and the definition of "media'' in today's changing world of social media, traditional media, bloggers, people who submit to regular magazines or regular journals. What is a definition of a journalist? What is a definition of the media? It is changing constantly.
The Deputy Chair: Thank you, superintendent.
Now we'll go to no stranger to this committee, Mr. Tom Stamatakis, who is joining us from Vancouver by video conference and has represented the police very well over the years. We want to thank him for appearing before this committee on so many occasions.
Tom Stamatakis, President, Canadian Police Association: Thank you, Mr. Chair. Good afternoon to you and all honourable senators on the committee.
Thank you again for the invitation to appear before you today regarding Senate public bill S-231 which was introduced by your colleague Senator Carignan and touches on the protection of journalistic sources. As always, I appreciate having the opportunity to speak before you, and I will keep my opening remarks brief to allow for as many questions as possible later.
I notice a few new faces around the committee table since my last appearance. For their information, I'm appearing today, as you said, as the President of the Canadian Police Association, an organization that represents over 60,000 front-line police personnel, civilian and sworn, across Canada. We are the largest policing advocacy organization in the country, and our membership includes police personnel serving in 160 police services across Canada, from Canada's smallest towns and villages, as well as those working in our largest municipal and provincial police services, and members of the RCMP, railway police and First Nations police personnel.
Also, as many of you already know, I'm a constable with the Vancouver Police Department seconded to our local association, which helps explain why I'm appearing today via video conference from Vancouver.
I also want to note that I won't be able to comment on the specifics of any particular incident regarding police interactions and investigations of journalists. I have followed many of the cases that have spurred the introduction of this legislation, but I don't have any inside information or special knowledge that I can share today. I'm here to offer my initial thoughts and try and answer any questions you might have to the best of my ability.
With respect to Bill S-231, I'll admit I have conflicting feelings on the bill. From a labour standpoint, I'm sympathetic to my friends in the media who have a very important role to play in our public society. Holding government, including our police services, to account is crucial to public confidence in policing, and their work should be allowed to take place with as few restrictions as possible for that work to be effective.
I also regularly represent police personnel who can be the subject of the same kind of invasive, investigative techniques this bill is focused on, so in that context I'm also interested in accountability surrounding these kinds of investigations. But from a policing standpoint, the answer is not quite as simple as it might seem on the surface.
It should be noted that journalists already have the benefit of a number of protections, some of which have already been alluded to in the opening comments, including those provided by the Charter of Rights and Freedoms. Any officer wishing to engage in surveillance of a journalist must follow accepted procedures and practices with respect to obtaining a warrant, which includes convincing a judge of the necessity of this extraordinary step.
This committee has to be mindful that any additional restrictions and red tape come at a cost. Impeding investigations, even under the best of intentions, may end up being an unforeseen consequence of this legislation, particularly with respect to the higher threshold of court judge that would be required to authorize surveillance by law enforcement. I'm certain every member of this committee has seen recent reports of the consequences of court delays on a number of serious ongoing trials, and Bill S-231, if passed, perhaps could contribute further to those delays.
Another concern I have regarding Bill S-231 is the rather broad definition of "journalist,'' which would be covered by this legislation. I'm quoting from the bill''
journalist means a person who contributes directly, either regularly or occasionally, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person.
Given the ever-changing nature of technology, I'm worried, from a policing perspective, that there are a number of people who may claim protection who might not be the intended targets of this legislation. With the proliferation of blogs, Facebook posts, even tweets, there exists a large grey area created here regarding who can claim to be producing material for dissemination by the media and even a broader number of people who could credibly claim to be assisting them. Is a civilian who films a criminal act in progress on their phone and then provides that footage to a journalist included?
As I said at the outset, while I don't always agree with my friends in the media, I respect the work they do, and I'm entirely sympathetic towards their desire to accomplish their important jobs with a minimum of impediment. The protection of sources is a key facet of that goal. Courts at every level have agreed, appropriately so, in my opinion, that this should be the case.
That being said, this committee has a difficult task. While journalists themselves may prefer carte blanche, our police services still have their job to do as well, which includes conducting investigations that protect our communities and our citizens. In a perfect world, these two jobs would not be at conflict with one another, but as we all know, nothing is perfect, so it falls to you and to this Parliament to balance those competing interests.
I'm still not convinced that a small number of well-publicized incidents necessitates this new and what appears to be onerous legislation, one that could have a number of unintended consequences, but I hope no members of this committee take that concern as a lack of support for a free and unfettered Canadian media.
I'm going to conclude with that thought. I would be happy to answer any questions you might have. Thank you again for the invitation to appear before you.
The Deputy Chair: Thank you. We'll start our questioning with Senator Carignan.
[Translation]
Senator Carignan: My question is for Rachel Huntsman. In your presentation, you suggested that we await the findings of the Quebec commission of inquiry in progress.
[English]
Ms. Huntsman: Yes, senator, I understand.
[Translation]
Senator Carignan: I'll continue with my question. I want to make sure that I've read everything properly. You know that, since the Supreme Court rendered the Keable decision in 1978, it has been recognized that provincial commissions of inquiry can't interfere with federal constitutional jurisdictions. The commission can't follow up at the federal level or provide recommendations related to the Criminal Code or to criminal proceedings. Don't you think it's a waste of time to await the findings of a commission that won't contribute anything at the federal level?
[English]
Ms. Huntsman: Thank you, honourable senator.
I don't think it's a waste of time. I believe that this commission of inquiry was struck because of questionable police conduct with respect to journalists. I'm sure this committee of inquiry will provide recommendations. Hopefully some of them with deal with how the police should investigate journalists and journalists' sources.
If the committee is able to provide recommendations, I would think that some of those recommendations may be of benefit to this honourable commission with respect to providing some guidance, because it's my understanding, and correct me if I'm wrong, that perhaps this bill was drafted arising from the events that did occur in Quebec.
Senator McIntyre: Thank you for your presentations.
I want to ask a follow-up to a question raised by Senator Carignan, and it has to do with the Quebec commission of inquiry. In your brief you mention that you're inviting this committee to await the findings of the Quebec commission of inquiry before moving ahead with this bill.
The problem that I have with that, and I agree with Senator Carignan, is that in Canada there are currently no statutory provisions protecting the confidentiality of journalistic sources, including whistle-blowers. We, therefore, have to rely on jurisprudence, and that to me appears to be one of the big problems.
Don't you think that it is very important to underline the importance of this bill instead of relying strictly on a commission of inquiry?
Ms. Huntsman: In response, honourable senator, you are obviously quite right that there are no statutory provisions that protect a journalist's source. However, we do have very strong case law that protects the source. As well, there are two very important class privileges: solicitor-client privilege and the confidential-informant privilege. Neither of those privileges is currently protected by statute. They are protected under the common law.
So if these two very important class privileges are properly protected under the common law, I question why it is necessary for the journalist source privilege to operate under its own statutory regime.
Senator McIntyre: Under the current law, a justice of the peace is responsible for issuing warrants, authorizations and orders relating to journalists. Bill S-231 would do away with justices of the peace, which means that a judge within the meaning of section 552 of the code, or a judge of a superior court of criminal jurisdiction, would now have that responsibility. I would like to have your thoughts on that, please.
Ms. Huntsman: Thank you, senator.
You're quite right that the bill does require that warrants pertaining to journalists must now go to a superior court judge. In response to that, from having listened to evidence heard at this inquiry last week, questions were raised with respect to the ability and training of justices of the peace and whether they should be issuing search warrants. I would like to speak on that, if I could.
In Quebec, justices of the peace do have training. Under the Court of Justice Act, in fact there's a distinction between administrative justices of the peace and presiding justices of the peace, the latter being lawyers who must have 10 years or more of experience. These lawyers are actually chosen from a pool of experienced Crown and defence lawyers. To suggest that justices of the peace are not adequately trained or are not sufficiently experienced to be able to issue these very important search warrants I think really needs to be considered.
As well, how justices of the peace operate does differ from province to province. For instance, in the province of Newfoundland, we do not have justices of the peace issuing search warrants. No search warrants are issued by justices of the peace.
I can only speak to my own province and from what I have been told with respect to the province of Quebec, but I do understand that the other provinces operate under their own regime.
Presently, search warrants pertaining to lawyers' offices can be issued by JPs. I believe the preferred practice is to have them issued by judges; however, case law does say that the justice of the peace is an option.
To have all journalists' warrants having to proceed to superior court has created a completely separate category of warrants only known to journalists. I question why it is that journalists' warrants go to superior court when lawyers' warrants can go to a judge of the provincial court in Newfoundland.
Senator McIntyre: Will the current procedure presently used by a justice of the peace change substantially with the coming of this bill?
Ms. Huntsman: My understanding is with this bill these warrants will not go before a justice of the peace. I may be misunderstanding your question, honourable senator, but my reading of this bill is that all warrants pertaining to journalists will now go to a superior court. That is what the bill states, I understand. So it is a huge change in procedure, separate and apart from any other process known to us.
Senator Joyal: On that very point, I beg to point out a nuance with your answer to Senator McIntyre: When a justice of the peace issues a search warrant involving the activities of a citizen, the presumed innocence of that citizen is at stake. When it is a journalist, there is an additional factor, which is the public interest that is incarnated by the job of that journalist. That's essentially what the Supreme Court stated in The Globe and Mail case of 2010. It stated:
The Court ultimately concluded that every claim to journalist-source privilege . . . is situation specific, with the public's interest in the freedom of expression always weighing heavily in the court's balancing exercise.
There is an additional element that has to be taken in consideration, which is very fundamental. In other words, a journalist has a public responsibility to inform. And by informing the citizens, we balance the democratic system. It's a pillar of our democracy.
When the police have a search warrant on me, if I have stolen goods in my office, then I am the only one concerned. It's my innocence that is at stake. There is no public interest at stake, per se, in the decision that the justice of the peace is going to make.
That's why I think there is an element that has to be taken into account. This bill tries to serve that objective. That's the nuance that I am making in regard to your answer.
A search warrant is a search warrant, yes, but a search warrant in this case has a specific public purpose that has to be protected. That's where you have to ask or expect that the person who is going to make the decision will be in a position to balance the objective of the police to lead an investigation and the decision to protect the public interest. That's why I think the level of "professional capacity'' of the person who makes the decision has to be at a higher level when the search warrant is requested on a journalist.
That is the nuance I wanted to make, which is in my opinion essential to the question asked by Senator McIntyre and the objective of the bill, the way the bill is framed. We might disagree with the bill, but that's essentially the logic of the system that the bill tries to put into operation.
Ms. Huntsman: Thank you, senator.
Having heard your comments, and with all respect, perhaps you're presupposing that all justices of the peace are not sufficiently trained to be issuing search warrants, especially search warrants pertaining to journalists.
However, clear guidelines are set out. You've mentioned The Globe and Mail case, but there are others. We have the Lessard decision. It's too long to really quote, but the Supreme Court of Canada has stated nine factors that justices of the peace must take into account before issuing a search warrant pertaining to a journalist. This is set out clearly by the Supreme Court of Canada. The need and necessity to strike a balance between the competing interests is one of those nine requirements.
I completely appreciate what you're saying with respect to the importance of these search warrants, that not only must we protect the presumption of innocence but also sources. However, there are clear guidelines already in place that have to be followed before a justice of the peace or a judge can issue a search warrant pertaining to a journalist.
Senator Joyal: The practice has shown, quite clearly, that a justice of the peace grants almost 95 per cent of the requests. In other words, it's more or less a procedure like going to the prothonotary to mark a document: "It's signed by a prothonotary; thank you very much; goodbye.''
The experience proves that the present system doesn't work, doesn't meet its objective.
Ms. Huntsman: With all respect, I heard the testimony last week coming from one of the representatives of the media with respect to that statistic and it did strike me as somewhat curious. I wondered whether the statistic took into account the fact that this police officer who went before the JP and ultimately got a search warrant may in fact have gone before that JP four or five times. That warrant may have been refused and he may have had to have gone back, curtailed it, corrected it, done whatever with it, and then gone back again to that same JP.
To say that JPs blindly sign off on warrants and approve 98 or 99 per cent of all warrants has to be looked at a little more closely. Are these warrants in the first instance or have they gone before a JP on two or three occasions?
From my own appearance in providing legal advice to the police on search warrants, I know the police officers oftentimes had to go back before the judge with a search warrant to improve it with regard to the grounds or conditions.
I wouldn't say I am suspicious or suspect of that statistic, but I do think it needs looking into.
Senator Joyal: But there are other facts that speak for themselves. I don't want to have an argument with you because there are other senators.
It's on the record that some journalists have been on search warrants for four years. This is totally ludicrous in relation to the length of time that those search warrants have been granted and the objective pursued by the police to get the information.
It was more for the police to try and find out who the whistle-blower was inside the police force that was leaking it to the journalists. It's more that than an investigation, because that journalist would have contact with a terrorist organization and organized crime in a way that was essential to keep him or her on track.
It was more, as I said, to try and debunk the whistle-blower that was within the police force. That's the perception that was created in the public.
There is something wrong with the system if the facts revealed show that the search warrant is merrily granted any time that it is asked for. And as long as it is asked for, there is nothing suspicious in the eyes of a justice of the peace that it's five years that that warrant has been valid in relation to a specific journalist.
Ms. Huntsman: I think we'll probably hear from the Quebec commission of inquiry with respect to — I don't know whether that case is under review — the facts of that case. I have not seen the information to obtain and I don't know what the grounds were with respect to the warrant, so I cannot speak to it. But I would say that it's obviously very serious if a police officer, who is sworn to an oath of confidentiality, divulges information obtained under a wiretap, and discloses that information to another person.
Senator Joyal: I will tell you why. We all give the benefit of the doubt to the police. It's like a doctor. We always give the benefit of the doubt to the professional we have in front of us. I trust my doctor as much as I trust the police force because I always presume that they are going to act within the system, as much as the doctor will follow within the framework of the principle of a medical treatment.
The practice is that in relation to journalists, the facts are so overwhelming that there is suspicion that the system doesn't serve its objective.
The Chair: Mr. Stuart or Mr. Stamatakis, did you wish to comment.
Mr. Stuart: We're at a disadvantage when we're asked to respond to certain cases that are being examined now where we don't know all the facts.
Ms. Huntsman raised a very good point in that the JPs that grant these warrants often will reject them and the officer will come back. I've done it myself two, three or four times for grounds, even for grammar or spelling. It's not uncommon to have warrants rejected based on content in an information-to-obtain.
When it comes to the media, nine points have to be covered in a search warrant before it will be issued. Again, we're not here to give commentary on a case that might be before the courts or in an inquiry now. We're at a disadvantage there.
I think the integrity of the officer can be called into question in court by the defence, and the integrity of the investigation can be called into question in court by the defence. Often the credibility of the confidential sources of police officers, the informants, is called into question, and it's through the court system that a decision is made.
The Deputy Chair: Of course, Ms. Huntsman would know that if a police officer asks for an authorization and is refused, and then goes to a different judge or JP, then they have to register within the ITO that they were refused, and there you have the statistics accumulating. We don't have the statistics on how many warrants are refused by provincial court judges or superior court judges.
Senator Pratte: For transparency's sake, I'm a former journalist, not a lawyer or a former police officer, so that might show in the questions.
All the witnesses today have expressed concern as to the definition of "journalist.'' We had witnesses from media organizations last week who suggested limiting the definition of a journalist to what they called career journalists or professional journalists. The journalists who would be protected would be journalists who have journalism as their main occupation and are remunerated as journalists. The scope would be limited to professional journalists. I would like your comments on that.
Mr. Stuart: To have that definition would be very helpful. We don't have that definition right now, as we give testimony on this proposed bill.
I will give you an example. In the Calgary Police Service, we have officers who are part of the Calgary Police Association. The Calgary Police Association produces a quarterly magazine written by members who are police officers. They could be deemed as journalists as well.
In the days of blogs and social media — Twitter, Facebook — before we can move forward on this, we need to have a definition of a journalist and what body they would fall under in regard to a code of ethics and a governance system.
Senator Pratte: I understand that even though you don't agree with the bill in general, you would be somewhat reassured by a definition that would point to professional journalists rather than the whole scope of people who write for information and so on?
Ms. Huntsman: We would submit that it certainly would improve upon the definition.
Senator Pratte: If I understand correctly the intention of the author of the bill, one reason to reverse the burden of proof was because it would be much more difficult for the journalist or media organization to demonstrate that this was the only way to get the information or the document in question and to have the journalist produce the document. It would be easier for the police organization to show that this is the only way to get the information.
Ms. Huntsman: The only way I can respond to that comment, senator, is that we have the four Wigmore criteria that the Supreme Court of Canada has said must or should be followed when looking at the journalist source privilege. They were quite clear when they said that all four criteria should fall on the person seeking the privilege. Because if that was not the case and you reversed the onus of proof, then you're almost presupposing that the privilege exists and almost creating a class privilege, when obviously there was no intent to do that.
The only comment I could make further to that is that the Supreme Court of Canada saw no issue with respect to placing the onus clearly on the party seeking the privilege. At least in the reported decision, the media didn't seem to make any statement that it would be unduly difficult for them to meet that test.
Senator Pratte: I'm getting into territory that is very risky for a journalist and not a lawyer, but the hesitation that the court had to give that privilege or constitutional protection was that journalists were not really well-defined. Right?
Ms. Huntsman: Exactly. That's part of the problem as well, that you're almost creating a class privilege for a group that is completely impossible to define, unlike solicitors belonging to a law society and doctors who are regulated. Obviously we know that journalists do not belong to any professional body.
Senator Pratte: This is why we should define "journalists'' as best as possible in the bill. Thank you.
The Deputy Chair: Now we'll move to two questioners who have a lot of experience with police forces. In doing so, I might say that what struck me as being a very important part of the presentation of the Canadian Association of Chiefs of Police is that your thought is that this bill goes beyond the intended intent of the legislation and even negates exigent circumstances. You didn't use the term "exigent circumstances,'' but that's what you meant.
Ms. Huntsman: Yes.
The Deputy Chair: But it removes entirely exigent circumstances with a police officer trying to carry out their duties beyond the scope of what was intended. I'm going to go to somebody who has a lot of experience. Then we're going to go to the RCMP and the provincial police and then to the Sûreté.
Senator White: Thanks to both of you for being here.
Superintendent, how many years of service do you have?
Mr. Stuart: Twenty-eight years this month.
Senator White: All with Calgary?
Mr. Stuart: All with the Calgary Police Service.
Senator White: Can you give us one instance where you would have applied for a search warrant or a wiretap authorization to find out the name of an informant to a media outlet?
Mr. Stuart: I have never experienced that.
Senator White: Have you ever signed off on one in the Calgary Police Service?
Mr. Stuart: I never signed off on one.
Senator White: Never seen one?
Mr. Stuart: Never seen one. I spent a lot of my career in organized crime, major crime investigations as a detective staff sergeant, inspector, now superintendent, and I've never seen that.
[Translation]
Senator Dagenais: My first question is for Mr. Stuart and Mr. Stamatakis. Fifteen days ago, journalists appeared before our committee. Brian Myles, the Director of Le Devoir, indicated that police officers tended to "cut corners'' during their investigations. Obviously, the police officers wanted to complete their investigations by trying to obtain the journalists' sources for faster results.
As career police officers, do you think police officers tend to use journalistic sources to save time?
[English]
Mr. Stuart: I can answer that to start, thank you.
As a supervisor, a commander and now a superintendent in a major police organization, it's my job to make sure that investigations are done correctly within the law and policy procedures and the Alberta Police Act are followed, as well as the Criminal Code and the Canada Evidence Act.
If that is, in fact, the case in my review of investigations, that will be dealt with immediately through the discipline process under the Alberta Police Act and the policies and procedures of the Calgary Police Service.
Have there been times when police officers were sloppy in their investigations? Yes, there have been, but there are many checks and balances within a police organization, with civilian oversight, with police commission and police boards in Ontario that monitor that, as well as a very observant and progressive Criminal Lawyers' Association of Alberta that also look into this when these cases come to trial.
Again, when it comes to wiretap investigations, there are a number of levels of oversight on these investigations. One of the most intrusive things police officers do, or police investigative teams do, is listen to conversations and intercept conversations. If we lose trust within the courts, if we lose that trust with our citizens, then we are unable to do our jobs, and those will be taken away from us.
There have been a series of events throughout history that have gotten us to the point where you have to have judicial review and judicial authorization to have these wiretaps done. They have to be done within a certain number of days and then you seek re-approval for an extension.
For anybody under a wiretap or a tracking device, once that investigation is complete, they are notified by that investigative jurisdiction that they were, in fact, subject to a wiretap and a tracking warrant, and that's part of the disclosure that they receive as well.
[Translation]
Senator Dagenais: Mr. Stamatakis, do you have any comments?
[English]
Mr. Stamatakis: Yes. I would just outright reject any suggestion that police officers routinely take shortcuts. It certainly wasn't my experience as an operational police officer very early in my career.
I can give you another perspective in addition to the superintendent's. I've been actively representing police officers for almost 20 years, and I can tell you that even from that side I've rarely, maybe on one or two occasions, had to represent a police officer because they took a shortcut on an ITO or on an attempt to obtain a warrant to do something and as a result there was a conduct investigation. I would reject that suggestion outright.
Police officers make mistakes. We know that. Those mistakes are generally responded to by the service very quickly, whichever service is involved.
We recognize that there need to be appropriate checks and balances. We take very seriously this issue of intruding on people's lives, and we're very concerned as a profession, whether on the association side or on the chief's side, to not be reckless with the authority we have with respect to obtaining a wiretap or other judicial authorizations to search or to obtain information.
I just don't agree with any statement that suggests it happens on a regular basis.
[Translation]
Senator Dagenais: I have a question for Ms. Huntsman. You mentioned that the Canadian provinces have different ways of handling warrants. The provinces act differently from territory to territory. Therefore, shouldn't a bill be adopted that can standardize things and prevent interpretations?
[English]
Ms. Huntsman: I think that the intent of the bill is to do away with the justice of the peace with respect to allowing the JP to issue search warrants pertaining to journalists. I believe that is one of the intents of the bill. I can only respond by saying that, yes, I agree that consistency and conformity is good and that it does appear that from province to province justices of the peace have different authorities.
However, to put this bill forward on the premise that the justices of the peace are not qualified or trained to issue these search warrants I believe is wrong.
The Deputy Chair: I don't know, Ms. Huntsman, if you have looked at the bill that includes the heading "Warrant, authorization and order'' and then refers to a search warrant, notably under 492.1 or 492.2. These are tracking warrants. They are not search warrants.
A 487.01, a general warrant, is not a search warrant. It's a technique to investigate by the police, which would be the warrants that would be used if any tracking were done under the circumstances we're talking about. Then it says 186 and 188 should be issued by a superior court judge. It already is.
Ms. Huntsman: Correct.
The Deputy Chair: It already is.
I want now to go to the former President of the Canadian Association of Chiefs of Police, Senator Boniface.
Senator Boniface: Actually, Senator Pratte asked my question. I just wondered if we could get a response from the Canadian Police Association on the question of definition of "journalist'' because I don't think the president had a chance to respond to that.
Mr. Stamatakis: I would just echo the comments that have already been made by the other witnesses. That's a key area of concern. It's too broad, and I think if this committee could do anything, it could better define who would be included in the context of that definition of a journalist. That would make a huge difference.
I can tell you from a front-line policing perspective that the issue for us is, first of all, access. Where do we go and can we get access when we're looking to obtain these organizations?
The second piece is when you're dealing with people on the street, particularly in today's environment with the proliferation of devices that everyone has on their person at any given time, everything is being videotaped. We constantly have to deal with issues where people claim to be reporting for somebody or posting somewhere or blogging somewhere. I know I'm a bit off topic, but they have these better protections in terms of taking the video and doing this and doing that. From an efficiency perspective — and I have appeared before committees before and I have made submissions on issues around the criminal justice system and delays and the administrative burden on police officers as they try to perform their duties in communities — the definition and how broad it is right now is a significant concern.
The Deputy Chair: Thank you.
Ms. Huntsman, you didn't have an opportunity to answer my question. Do you think that this bill should go ahead without covering 487.01, which is the general warrant provision under the Criminal Code? That is obviously not a search warrant, and there's quite a distinction, as you know. You're a former Crown prosecutor. You've handled a lot of cases. You have case law. I've looked at it. Do you think this needs to be corrected?
Ms. Huntsman: I wonder whether it was in error that the general warrant provision was not included. Obviously we know that it's a warrant issued and utilized by the police, and it can do all sorts of wonderful and magical things.
The Deputy Chair: Oh, my goodness, yes.
Ms. Huntsman: To not include that, I query that myself.
As well, perhaps the term "search warrant'' could be changed to "judicial authorization.'' Maybe that would clear it up.
The Deputy Chair: Absolutely.
[Translation]
Senator Dupuis: I want you to help me understand the current situation. I assume everyone here is of good faith, including me. As a lawyer, I comply with all the requirements imposed by the law and the bar. I'll give you the same benefit of the doubt. We're all people of good faith who comply with the law.
However, we're not here for nothing. Apparently, there are problems, and we must make certain decisions. We have a bill before us. We must choose between what you call "competing interests.'' Problems of all sorts are certainly arising. We've heard a great deal about the journalists' view and why they have a problem. The definitions of "journalist'' and "media'' were discussed.
Like me, you had to read The Globe and Mail articles on the sexual assault complaints. There's definitely a problem. Unless The Globe and Mail completely invented the story and we're gullible enough to blindly believe it, after reading the article, I think there's a problem. The issue of missing Aboriginal women is another problem area. I don't know the scope of it. However, there is a problem, and it may be better documented after a commission of inquiry is held.
Contrary to what we might believe, even the people from The Globe and Mail have confirmed that the problem extends beyond Quebec. However, the Quebec problem revealed that the issue is much greater, from a systematic point of view, than we might have initially believed. We could have said that only one inspector approached the same justice of the peace. I don't take that for granted. I think everyone did their job. Everyone worked hard. The person failed to obtain an initial warrant. This was corrected, and the request was made again to different judges. Everyone acted in good faith.
At least in Quebec, I think we're starting to realize that the problem is much greater within the police forces. I want to take advantage of the fact that we have before us both police force representatives and you, who obviously have another perspective, since you represent the chiefs of police. This is exactly what's at stake in the discussions being held as part of the Quebec commission of inquiry.
What you told us is already clearer, in terms of necessity, according to you, for the purpose of doing your job properly and better defining what a journalist is. Is there an answer to a question we haven't asked you and that would help us understand better? I assume that you're doing your job properly, that your police officers are doing their job properly, and that nothing in either Vancouver or Calgary is causing problems. However, everywhere else, there seems to be problems.
[English]
The Deputy Chair: That is the big question. That is the one and probably only question from the senator, but a very important question.
Mr. Stuart: It is a very important question, and thank you for asking it.
I go back to Ms. Huntsman's original submission that the media is very important in our democracy. You talk about The Globe and Mail's article in regard to sexual assaults that were unfounded by police, and the superintendent in charge of major crimes and specialized investigations of the Calgary Police Service forced us to go back into our organization and look at this. That was very important work done by The Globe and Mail.
I think in order to be a strong, strategic police organization, you have to have pillars of support and understanding, and those are the pillar of the community, the pillar of the police commission or the police board, the city council or the town council, your employees, but also a working relationship with the media. That is very important. I take that seriously and I have my whole career.
This isn't the police versus the media at all. This is the police working with the media and the media working with the police. We utilize the media often to help us in investigations, and it's very important for us to have that relationship and the ability to do that.
Are there issues in policing? Those issues are brought up and those issues are being investigated, like they are, from my understanding, in Quebec in regards to this commission, and in other areas. It's important that those are looked into and that there is civilian oversight to make sure that they are looked into properly in regard to governance. There is the Alberta Law Enforcement Review Board, and it conducts civilian oversight of police investigations.
This isn't us versus them. This is us working with them and working together for the benefit of democracy in Canada.
The Deputy Chair: Thank you very much. I don't know if Mr. Stamatakis wishes to have the final word.
Mr. Stamatakis: I will echo what Ms. Huntsman said at the outset. I would adopt her suggestion that we wait to see what the commission of inquiry in Quebec determines so that there's a better understanding of the full scope of the problem. That can better inform any decisions with respect to new legislation that, like she pointed out, creates this new class of privilege and whether those are the lengths we need to go to in order to address what seems like an issue now but perhaps is not.
I go back to Senator White's comment about how often I have dealt with this issue. I'm in my twenty-eighth year of service. I have not ever dealt with it myself, and I'm not aware of it ever coming up in my service in terms of seeking one of these authorizations.
So that's the concern. Are we going too far too fast? Not to say that we don't need to do something, but is it too fast? That's all.
The Deputy Chair: Thank you to the witnesses.
Mr. Stamatakis, you have a great history with this committee, and we want to thank you very much and congratulate you on your position as president.
Superintendent Stuart, thank you for your excellent testimony.
Ms. Huntsman, you have always been informative and instructive in the law, and we appreciate that very much.
Ms. Huntsman: Thank you.
The Deputy Chair: Joining us for our second hour are two people who agreed to come on very short notice for which we thank them.
We have with us Mr. Claude Robillard, the author of the book La liberté de presse, la liberté de tous, and also I think he was the president of the federation of journalists at one point in the province of Quebec.
We also have Jamie Cameron, Professor at Osgoode Hall Law School who is joining us by video conference from Toronto. She is an expert on the subject of freedom of the press and representing the Canadian civil liberties, I think in the Supreme Court of Canada case of The Globe and Mail. I believe that to be a fact.
First of all we will call on Mr. Robillard to give his presentation.
[Translation]
Claude Robillard, Writer — La liberté de presse, la liberté de tous, as an individual: I'm pleased to be here with you. I've been waiting for this opportunity for 27 years. My first major mandate as Secretary General of the Fédération professionnelle des journalistes du Québec was to sit on a protection of journalistic sources committee with the Barreau du Québec. We finished the assignment in 1990 with a memorandum of understanding in which we asked the government for legislation to protect sources using certain criteria.
Twenty-seven years later, I'm here before you with a very good bill. This may be a historic opportunity to move forward. For those of you who have concerns, I think about 40 American states have shield laws, along with New Zealand, Australia, the Commonwealth countries, Belgium, France and the European Union. There are police forces in those countries that understand people's concerns and that operate despite the laws. Therefore, we need to be fairly realistic with regard to our potential concerns.
Not much progress has been made since 1990. I'm convinced that the confidential sources of journalists should be considered an intrinsic part of democratic society. It's a key part of our democracy. To a certain extent, it's the voice of people who don't have a voice. In my 24 years at the Fédération des journalistes, we focused a great deal on government communications, among other things. We developed three black files documented with facts. We reviewed government communication policies and noticed that the policies are becoming increasingly rigid. Fewer and fewer people have the right to talk. When we ask for trivial information, we almost have to go through a long hierarchy. Three weeks later, they come back to us without an answer or ask us to email them. In Quebec and Canadian societies, the information on government businesses is increasingly monitored. We have well-documented files on the subject.
What citizens can expect, or what they receive if we don't have a confidential source or this type of leak, is official information that tells us what public agency can respond. The police may be a public agency, a department, a para- municipal agency, and so forth.
If we have only the official views on what is going on in society, we have a society where we don't want to live. We don't want to live in a society where only the official view can be shared, since other views are bypassed.
I'll give you an example from last Saturday. The first page of La Presse contained the headline "Autopsie d'un camouflage,'' or autopsy of a cover-up. The article describes the trial of a trainer accused of sexually assaulting 12 young skiers in the 1990s. La Presse learned that the management of the national alpine ski team tried to discourage the victims from filing complaints. The article is very short. It says that the sports federation, called Alpine Canada, conducted an investigation. The federation suspended the trainer, who resigned a few days later. We're then told that a widespread cover-up began. The three athletes at the heart of the scandal were advised to keep quiet. They were told they may lose sponsors and how the matter could affect their career. La Presse referred to five sources from the ski community who weren't authorized to speak publicly about the case. This is the other side of the coin. An organization appears to have done some covering up, and as a result of internal sources, we can know these things.
Today, I want to tell you that, to promote democracy, since the sources are protected, the decision-makers must know the sources are under surveillance. There may be someone who, without a retaliation right, speaks to journalists and shares something of public interest. By protecting sources, we limit possible abuses and encourage people to feel that they have a voice. They aren't powerless pawns. Also, consumer shows such as "J.E'' and "La facture'' receive hundreds of telephone calls from citizens who feel that they don't have a voice. By reporting a situation to a journalist, who then conducts an investigation, the citizens feel as though they're taking part in society. As a result, protecting sources is very good for democracy.
My second point is the following. The law has taken a major step forward with this bill. However, it must be clear that freedom of expression and the related freedom of the press are of greater public interest. The bill refers to public interest. Paragraph 3(3)(b) under "Criminal Code'' says that we must be satisfied that "the public interest in the investigation and prosecution of a criminal offence outweighs the journalist's right to privacy.''
We could take the argument further by saying that two visions or aspects of public interest are competing. It's not the journalist's right against the public interest in conducting an investigation. It's the public interest in conducting an investigation against the public interest in defending a fundamental right, which is freedom of expression and freedom of the press.
In the memorandum of agreement with the Barreau du Québec I referred to earlier, we said that two basic principles are competing. The public interest requires that justice be served and that all evidence be submitted to the court. However, another dimension as important to public interest, the free flow of information, requires that the press can use confidential sources as needed. We have these two visions of public interest. If we say that police officers serve the public interest by conducting a search, the source and the protection of sources also serve the public interest. A balance must be achieved, but I think it's worthwhile to present the argument this way.
I would say that, basically, freedom of the press isn't what's left when all other freedoms have been satisfied. The Canadian Charter of Rights Freedoms contains many freedoms, and the Supreme Court says there's no hierarchy. The fact remains that, in people's heads, freedom of the press is sometimes moved to the back burner. As evidence, I have people to whom I spoke when conducting research for the book on freedom of the press. Even academics found that freedom of the press was a corporatist concept. However, it's not a corporatist concept, but a fundamental right under the charters. It relates to freedom of expression. All citizens have the right to freedom of expression. When the argument is made that the investigation won't go as well, fundamental rights are at stake. Therefore, a great deal of care must be taken.
For my third and final point, I'll give you a small scoop. I asked journalists a certain number of questions. I arranged for the Fédération des journalistes — since I'm retired, I no longer work there — to send the survey questions to the professional members. We're currently collecting the data. It's not a scientific survey, but it's still quite good.
I'll read the questions very quickly. The first question was, "Do you ever use confidential sources in your reports?'' A little over one hundred journalists responded. The answers were as follows: never, 1.9 per cent; rarely, 57 per cent; quite often, 24 per cent; and often, 16 per cent.
If we combine "quite often'' and "often,'' we find that 41 per cent of journalists use confidential sources in their reports. It's not the marginal issue we might think it to be.
The second question was, "When you had to use confidential sources, how would you describe, in general, their role in your most significant reports? What role did confidential sources play in the report?'' The answers were as follows: essential, 59 per cent, so almost two-thirds; important, 25 per cent; useful, 15 per cent; secondary, 0 per cent. Nobody found that using sources was of secondary importance. Therefore, the sources played a very important role in the reports in question.
The last question was, "Do you think the sources would have given you the information if you hadn't guaranteed confidentiality?'' The choices were "yes'', "no'' and "it depends on the case''. The answers were as follows: yes, 1.9 per cent; no, 87 per cent; and it depends on the case, 10 per cent. Basically, one out of ten journalists said they wouldn't have obtained the information without promising confidentiality.
I won't read you the other question, but essentially, they were asked to provide examples of information of interest to the public that they were able to report on because of confidential sources. The question generated a wide range of answers involving public interest information, such as the La Presse example I talked about earlier.
That was the little scoop I wanted to give you. Although the figures have yet to be finalized, they still give you a sense of the very recent trend in relation to where things stand.
[English]
The Deputy Chair: Thank you, Mr. Robillard.
We'll now hear from our next witness, Jamie Cameron.
Jamie Cameron, Professor, Osgoode Hall Law School, York University, as an individual: Good afternoon, members of the committee, from Toronto. Thank you for inviting me to participate in your discussion of Bill S-231. I wish I was in the room with you, but that was not possible.
I've been a full-time faculty law member at Osgoode Hall Law School since 1984. As the chair said, much of my work over the years has been on freedom of expression and freedom of the press. In fact, I did appear at the Supreme Court of Canada on both the journalist source cases, the National Post case and The Globe and Mail case.
I actually don't have much of a presentation for you. I apologize that I wasn't able to send an outline. My role here is a little bit on the last-minute basis, but I do applaud Bill S-231. It's been my view for many years that journalist sources need statutory protection.
I'll make a couple of brief comments and then make myself available for questions because that's perhaps the best way I can be of assistance to the committee.
First of all, recent events make it clear to me that the law as it stands today does not adequately protect journalists and the newsgathering process.
I have two further points about that. First of all, we should remember that freedom of the press and media is constitutionally protected by section 2(b) of the Charter of Rights and Freedoms. That's a very important point, in my view, to take into account in any discussions of this proposed legislation.
The second and related point is that we should also bear in mind, as my co-presenter Mr. Robillard already mentioned, that the media and press play a very distinctive and vital role in democratic governance. Specifically, newsgathering, investigative journalism, and the wide dissemination of news and commentary advance core democratic values of transparency and accountability.
From my point of view, the press and media and journalists are very much the agents and servants of democracy. They can't really play that role and discharge that responsibility unless, number one, they are independent from the police and the state in their journalistic activities; and, number two, newsgathering and journalistic work is free from interference by the police and the state.
I really thought my primary role here today was to answer questions, so I'll close by saying that I'm very much an advocate of Bill S-231. It does help to catch Canada up with other countries and brings Canada into alignment with other countries that have already taken the step of providing statutory protection for confidential journalist sources. From that point of view, I very much see it as a step forward.
Having made those comments, I'm happy to respond to questions that members of the committee might have for me. Thank you very much.
The Deputy Chair: Thank you, Ms. Cameron. We appreciate your appearing on such short notice.
[Translation]
Senator Carignan: I would like to pick up on something the police officers who appeared before you said: they felt we were moving too quickly on this issue. I can appreciate that both of you feel we have done anything but moved too quickly. This is a long-standing request.
I would like to hear your thoughts on the importance of providing statutory protection, in other words, through legislation. We heard from police representatives who said that protections already existed, that the jurisprudence existed, that the Supreme Court ruled on the issue. As I see it, statutory protection obviously brings clarity to the issue of protecting sources. It also has the effect, however, of telling sources that protection exists, that it is not vague and that it does not depend on what a judge will decide five or 10 years down the road. It is a matter of fact, one they can verify, and so will not have the adverse effect of deterring sources. According to journalists, the recent events have deterred sources because they fear being identified.
To my mind, this legislation would send the message to sources that defined and measurable protections do exist, that the ins and outs are clear. The shielding effect would enable them to speak up in the public interest. Do you see that same effect at play? Do you see other benefits in extending statutory protection to sources?
Mr. Robillard: You took the words right out of my mouth. I would have said the same thing. I agree with you on the legislation's educational value and the clarity it provides for sources, journalists and judges.
We were discussing justices of the peace. I am not qualified to evaluate their work. The fact remains, however, that, if a justice of the peace has to go through hundreds of pages of case law in which the decisions vary, problems can arise. Legislation would make things very clear; it would specify the parameters that have to be taken into account and the protections granted.
When the police representatives were speaking to the committee earlier, they made it sound as though we were talking about protecting journalists. Journalists are not being protected here; their sources are. We are not talking about shielding journalists from arrest for impaired driving.
As far as statutory protection goes, I would say that laws were created in response to significant problems that arose at some point in time. Belgium experienced problems involving police seizures and the media; they were completely inappropriate. The matter went all the way to the European Court of Human Rights, which ruled that the police activities violated the European Convention on Human Rights. The work had to be done over. Statutory protection always stems from the misuse and abuse of power. Why do we exist? Why is your committee studying this bill? The reason is that abuses were committed in Quebec, and it happens repeatedly. If done right, the legislation could, in my view, control such abuse.
[English]
Ms. Cameron: I would have said that even without the recent events in Quebec that Bill S-231 was very much needed.
The current source of protection for journalist sources is the Wigmore test. The committee probably knows about this test. It's a judge-made test that was proposed first by an academic. I'll state why it's an inadequate form of protection for journalist sources.
First of all, it's a general test that is used for all forms of privilege. It's not a press-specific or a journalist-specific standard to determine the question of privilege or protection. As such, it doesn't really take into account the constitutional status of journalists and members of the press. I think that's a very important limitation of the Wigmore test as the basis for journalist protection in Canada.
The other thing about the Wigmore test is the burden of proof. Under the current common law test, the Wigmore test, the burden falls on the person who is seeking protections to prove or to justify the privilege, and it's not on the party seeking disclosure. I've always thought that is the wrong way around. The protection should attach to the privilege and that anyone who wants to break the privilege and compel disclosure of confidential relationship information should have the burden to explain why that's justifiable. That's one of the things that Bill S-231 does that I think is very positive and provides a corrective to the current law.
The other thing I would say is that I'm very much of the view that positive standards set out in a statutory bill that is promulgated are a much better way of providing the protection to confidential sources and providing reassurance to the whole newsgathering process so that there isn't a chill on access to confidential sources in that process.
So I do think there are many advantages to a statutory protection and that there are limitations in the current common law process.
Senator Pratte: I'd like to address both of my questions to Ms. Cameron.
The first one, you alluded to a bit. You mentioned the recent events in Quebec. A few of the witnesses who appeared before us mentioned that this seemed to be a problem that arose in the province of Quebec. In fact, a representative of police forces outside Quebec said that that problem apparently does not exist in other provinces and that therefore we should not amend federal laws, the Criminal Code or the Canada Evidence Act, for a problem that seems to be limited to one province. How would you react to that?
Ms. Cameron: I don't agree with the proposition. As I said a moment ago, even without the recent events in the province of Quebec, I would have supported Bill S-231. It's been pointed out already this afternoon that in this regard Canada has lagged behind a large number of other democracies that have already put this kind of protection in place.
So it may well be the case that the events in Quebec have provided the momentum and inspiration for Bill S-231, but I think it's warranted in its own right. I also believe that because it's under the auspices of the criminal law and the Canada Evidence Act, this should be the standard across the country.
So we're not just addressing a problem or an issue in Quebec. I think it's a much broader issue than that, and we simply haven't had the incentive to act on it previously.
Senator Pratte: Another point that was made in front of this committee was that this bill would give journalists a statutory protection that another group of citizens — lawyers, for instance — does not have. Lawyers have protection under common law, but they don't have a statutory protection. So why would journalists enjoy that kind of protection?
Ms. Cameron: I think that's a valid point. In discussions about protections for the press and special protocols for search warrants and special rules of evidence for confidential sources, you often hear push-back about this being a form of special protection for members of the press.
My answer to that would be that we go back to the function of journalism, of newsgathering and of investigative journalism and the role of the press in democratic governance and the core values I mentioned at the outset, which are the values of transparency and accountability. I would say that it's in the interest of democratic governance that these protections be granted.
It should also be pointed out that in granting these protections, they're not absolute. They're still decided on a case- by-case basis, depending on the circumstances and whether, at the end of the day, the balance favours disclosure of confidential material rather than protection of it.
It's a point that has to be addressed in any discussion of the legislation, but I think the answer has to do with the role that the press plays in democratic governance.
The Deputy Chair: Of course, we have section 488 of the Criminal Code.
Senator Carignan, you had a point to make here.
[Translation]
Senator Carignan: There is something I would like to clarify. There is much talk of journalists' rights, but I think it's important to highlight the following distinction. This bill does not grant journalists a right; rather, it grants the right to the protection of journalistic sources. Journalists have a duty to protect their sources. They have to take the necessary steps at their disposal to protect sources. I would like to hear your take on that point, specifically, Ms. Cameron.
[English]
The Deputy Chair: Very briefly, professor.
Ms. Cameron: You're right, of course, and that's another aspect of the answer. The privilege, though, is actually in the hands of the journalist at the point at which the evidence is being sought. That, I think, is why it's seen as a privilege that goes to the journalists rather than to the source. But the purpose of the privilege undoubtedly is to protect the source so that newsgathering and investigative journalism can be carried out.
The Deputy Chair: Very instructive.
[Translation]
Senator Joyal: Mr. Robillard, I would like you to elaborate on one of the points you raised. You said that, nowadays, information held by public bodies — governments, police departments, municipalities and such — is increasingly centralized and much harder to access than it used to be. Would you mind elaborating on that aspect of your presentation?
Mr. Robillard: I could, but it does not pertain to your bill.
Senator Joyal: Nevertheless, it does come into play.
Mr. Robillard: When I was with the journalists federation, we created three horror story files, if you will. Among other things, we asked people how they went about obtaining information from the government. We heard horror stories about unacceptable wait times and many other things. They would call an environmental officer in the Outaouais region and get a response from someone in Quebec City. The information is centralized in Quebec City, and no one else is allowed to comment. We met with government communications staff to advise them of what was going on. We told them that journalists were not satisfied; we explained that they had trouble obtaining information, when all they want is to communicate information. Journalists do not seek out information out of self-interest. Their response was that we were exaggerating and that such occurrences were rare. They brushed everything aside.
Pursuant to access to information legislation, I asked 23 public organizations to send me their communication policies. An analysis of those policies revealed that, when it is a journalist telephoning for information, red flags go up and the request is handled in a very delicate manner. It is right there in black and white.
The procedure followed in response to media requests ends up sterilizing the information, so much so that it becomes inadequate because it is received too late and has been excessively watered down. Regardless of what authorities say officially, this centralization of information and the formatting performed by communications staff poses an additional barrier to the dissemination of information.
That is why confidential sources sometimes give us the heads-up on a new internal report that has just come in and bears examination. They put journalists on a path that helps to chip away at the communication façade. That was more or less the point I was trying to make. There eventually comes a time when the façade, the communication wall, has to come down, for the sake of the source of the information and the public alike.
[English]
Senator Joyal: Professor Cameron, the part of the bill that amends section 488.01(3), on page 4 of the bill, reads "Warrant, authorization and order.'' The way I read that section of the bill is that the judge has to be satisfied of two things: first, that there is no other way by which the information can reasonably be obtained; and, second, the public interest in the investigation and prosecution of a criminal offence outweighs the journalist's right to privacy in gathering and disseminating information.
It seems to me that we put the judge in the role of more or less an investigator because he will be faced with the fact that he will have to pronounce that there is no other way by which the information can reasonably be obtained.
The judge normally is seized of two conflicting views. The first is the one that says I need the warrant to have my investigation completed, and the other one is that there is no other way for that information to be obtained.
In cases where there are conflicting views about another way to obtain information, would it not be better for the judge to be hearing a special advocate that is able to contradict the police forces about the contention of the police that there is only one way for them to get the information?
You put the judge in a difficult position of having to go and search for the information because he has only one view, which is the view of the police. He has to take into account that he is adjudicating on a matter of public interest at the same time. Would it not be better for the judge to request the assistance of a special advocate in a case where he needs additional options than the one the police are presenting to him?
To help you, we heard from the CBC, they proposed that that should be added to the bill, to put the hearings on better legal ground and maintain the neutrality and independence of the judge, more or less as we have in the situation of a security certificate. As you know, the procedure to get a security certificate is there is a special advocate that may contradict the information that the security service provides the judge in adjudicating whether there should be a security certificate.
Ms. Cameron: I'm not sure I fully understand the proposal and the point in the process where this special advocate would come in. I gather it's in the initial request by the police for a search warrant or some other authorization or order.
Just thinking out loud, I would say two things. One is that, as I read the bill, it's the responsibility of the police to satisfy the judge that there is no other way the information can be obtained, and so they have to put in affidavit evidence or evidence of some kind to address that point. On the second part, they have to show that the public interest in investigation and prosecution outweighs the journalist's right of privacy. That's also a matter of argument.
I'm not sure I'm as readily persuaded that it's necessary to over-complicate the procedure by bringing in a special advocate. It's not something we do ordinarily when search warrants are being sought.
As I understand the draft legislation, there are protections that come into play that will allow members of the media affected by any warrants or orders to be given notice and to make argument in the event that the material is actually going to be disclosed.
Now I may not have fully understood the proposal. I'm just saying that I'm a little hesitant to over-complicate the process and bring in a special advocate if the processes that normally apply for search warrants and authorizations can be adjusted to give the protections that are needed.
Senator Joyal: But the distinction between a warrant, as it is provided in the Criminal Code, and a warrant in that special case whereby public interest is at stake, somebody has to speak for the public interest. Somebody has to argue for it. In some cases, the judge who presides over that issue will have to do the reasoning and express the needs in that special circumstance of public interest.
The judge will also have the responsibility of evaluating if there are alternative ways to get the information. Of course the police will come to the judge with the case already prepared. They will have prepared their answers to those two conditions to satisfy the judge. But that is not enough for the judge to be able to adjudicate impartially on the views of the police. The judge will have to take the role of challenging the police on other ways that the information could be obtained, because the judge will be there to speak on behalf of the public interest.
The Deputy Chair: Professor, could you give us a short response to that because we have five other senators who want to question you.
Ms. Cameron: I would just say that I can see that the point of the proposal is to further protect the press and also to secure the public interest. From that point of view, I think it's a valid point.
[Translation]
Senator McIntyre: I want to thank the both of you for your presentations. As you pointed out, Mr. Robillard, protecting journalistic sources is important because of the bond of trust that must exist between journalists and their sources. In other words, if sources do not feel comfortable speaking out, they won't — hence the importance of the bill. Do you think sources will feel more comfortable disclosing information if the bill comes into force?
Mr. Robillard: Yes, because the purpose of the bill could be communicated to them, explained in layman's terms. It would add a layer of confidence without extending absolute protection. As things stand, the message to journalists is that they can have no assurances. If the bill becomes law, the message will be that they can have certain assurances within a given framework. So, yes, the bill would provide additional protection.
Senator McIntyre: If this bill is enacted, it will definitely be necessary to educate the public and make them aware of what it does. There is no doubt that the Lagacé controversy had repercussions in Quebec, prompting fear among sources, as though there were a fox in the henhouse. Are sources still worried about speaking to journalists?
Mr. Robillard: The survey figures I gave you earlier are from last night. When asked whether they would share information without any assurance of confidentiality, 87.38 per cent of sources said no, but what they do not realize is that confidentiality is not truly a given. In other words, they require confidentiality before they will speak.
[English]
Senator Sinclair: In the writings that you both have done and the publications that you have issued as researchers, academics and authors, do you consider yourselves journalists who would be protected and whose sources would be protected by this legislation?
[Translation]
Mr. Robillard: I am not a journalist. I was the secretary general of the journalists federation for 24 years, but I never had a federation press card, which I issued.
[English]
Ms. Cameron: I'm currently not a journalist. I wouldn't be protected by this bill.
Senator Sinclair: Thank you. Even in your capacity as a member of the editorial board at Osgoode Hall Law School?
Ms. Cameron: No, not really.
Senator Sinclair: Thank you.
[Translation]
Senator Dagenais: Mr. Robillard, as you surely know, I used to be a police officer, so I knew many journalists. Without meaning to be pretentious, I can tell you that I was able to identify who the journalist's source was on a few occasions. I think this is a good bill, and I believe sources need protecting. I would say that those who supply journalists with information often do so out of self-interest or vengeance. I don't want to comment on the situation in the Montreal police force, since it is under investigation, so I will wait to see how things unfold. The Sûreté du Québec will conduct its investigation, but, as you know, we are in the habit of finishing the work for them.
That said, looking back, we sometimes realize that the information published was not in the public interest. Journalists and media outlets, however, do not have a magic eraser at the end of their pencils to repair the damage caused. You may not be a journalist, but you no doubt read the papers, so you have had occasion to see that corrections frequently wind up at the bottom of some page far removed from the newspaper's featured headlines. That does nothing to help restore the reputation of an individual or a company. Yet, the journalist did their job and listened to the information provided by their source, who, all the while, acted out of vengeance.
What steps can be taken to control these types of attacks, which are not necessarily in the public interest?
Mr. Robillard: The government would be treading on very dangerous ground if it attempted to introduce such rules. To be perfectly frank, who cares whether sources speak up out of vengeance? Is the information true? Is it in the public interest? Take the sources in the Alpine Canada case, for example. Were they seeking vengeance against someone? I have no idea. Many are alleging a cover-up. When information pertains to sexual assault, it is in the public interest. The source's motivation has little bearing if the information is true. Journalists who receive information from a confidential source conduct checks and follow certain procedures. Obviously, some journalists are better than others. If it came down to imposing a framework to control a journalist's behaviour after they receive information, it would virtually be akin to totalitarian rule, because the very hallmark of journalism is freedom of expression.
Therefore, everyone here today could at some point become a journalist, and that would be great. Some would be better at it than others; some would quit after a year and others would carry on. Journalism cannot be confined to a neat little box where everyone works the same way. Journalists are sometimes compared to lawyers and doctors, but there is no constitutional right associated with the exercise of those professions. Journalists, however, do operate by constitutional right, freedom of expression, and it is important to accept that blunders are occasionally made. If it turns out that the person caused harm to someone, defamation remedies are available. If it can genuinely be proven that damages were suffered and that a cause-and-effect relationship exists, procedures are in place and the journalist is not protected. If a news story causes someone harm and results in financial losses, the individual can seek a remedy. It has no direct bearing on the protection of sources.
Senator Dupuis: In light of the data you shared with us about your survey and the fact that you spent many years as a journalist, I would like to know whether you see a connection. I ask because you drew an interesting link with the notion that information coming from the government and public organizations is under tighter and tighter control, at both the executive council and the Privy Council levels.
In the face of an increasingly tighter grip on information, have you measured whether sources have, in turn, become more and more inclined to contact journalists, because they were muzzled at work, regardless of the type of work they do? This is a link we had not necessarily identified, with governments increasingly touting their desire to be open and transparent. It's quite compelling and makes it seem as though things are moving in the opposite direction. Is that something you measured in your survey?
Mr. Robillard: The direct link between the prevalence of sources and the tightening grip over public communications is not something we can measure. Nevertheless, you may recall a few years back when federal government scientists took to the streets in Ottawa in protest because they had been muzzled. Scientists never protest. If information is blocked on one end, it has to come out the other. If you block the flow of a river somewhere, the water will simply go around the blockage. At the same time, if whistleblowers, or confidential sources, are subject to a great deal of repression, they have to be incredibly courageous.
I'm not sure whether you heard about Sylvie Therrien, the Service Canada employee who was fired for leaking documents to the media showing that all employment insurance employees had been told to reduce EI payouts to the tune of $485,000 in savings quotas. The person who dares to blow the whistle pays a huge price. If communication is blocked, then, yes, some sources will want to speak up, but if, on top of that, sources are repressed, it goes against their desire to speak up. That leads to an extremely complex game, but I don't have those figures. It is not something I can measure.
[English]
The Deputy Chair: Thank you.
We want to thank the witnesses who appeared before us today for their very excellent testimony and to thank them especially for appearing on short notice.
Senator White, you had a point of order or an observation on another matter before we conclude?
Senator White: Thank you, Mr. Chair.
As a result of some discussion, I was wondering if we might have a couple of minutes to consider a research piece that we could work on over the next couple of month before we finish. I have had discussions, if Senator Boniface doesn't mind me mentioning, in relation to funding for First Nations policing in Canada. It has been in dire straits over the past number of years, but it might be a good opportunity for us to engage in a bit of research that I think we could conclude before the end of the year. I didn't want to leave it for another meeting. I know we're very busy.
The Deputy Chair: Is it the wish of the committee that we deal with this in the steering committee for future operations of the committee?
Hon. Senators: Agreed.
(The committee adjourned.)