Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 22 - Evidence - February 15, 2017
OTTAWA, Wednesday, February 15, 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 4:15 p.m. to give consideration to the bill.
Senator George Baker (Deputy Chair) in the chair.
[English]
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 begin our consideration of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources). We will be hearing from the Canadian Media Coalition later on, the Canadian Broadcasting Corporation, The Globe and Mail and representatives of Le Devoir.
For the first hour of proceedings, we will start with the Honourable Senator Claude Carignan, P.C., who is the sponsor of the bill. Thank you for being here with us today, senator. The floor is yours.
[Translation]
The Honourable Senator Claude Carignan, sponsor of the bill: Mr. Chair, it is my pleasure to be here today as part of the committee's study on Bill S-231, An act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).
Bill S-231 seeks to protect one of the essential components of freedom of the press that is increasingly threatened. I am referring to journalistic sources.
In a free and democratic society, the democratic system rests on various pillars, without which, a democracy loses the very essence of its reason for being. Freedom of the press is one of the pillars of a free and democratic society. The media has a duty to provide fair and accurate information and acts as a counterweight by exerting a sustained pressure on the government of the day. And a duty to inform is closely linked to a right to be informed.
A government or any public institution that plays a legislative, executive or judicial role, or any private organization funded wholly or partially by public funds, must account for the use of these public funds or the exercise of its public power. Anyone who holds public power is susceptible to abuse. A person who witnesses an abuse of power or an abuse of funds should be able to use and trust the most appropriate means at their disposal to denounce wrongdoing. For many people, and for many reasons, this most appropriate means is represented by journalists. People become what we call journalistic sources.
Why protect journalistic sources? They are essential to keep the state and anyone who uses public funds responsible and accountable to the public. Without them, major scandals like Shawinigate or the sponsorship scandal would never have been discovered.
Journalistic sources who reveal abuse can have fears or face physical and psychological threats, as well as financial threats. Sources who live in fear or are being pressured may well stop revealing information and thus prevent the public from being informed. A relationship based on confidence and trust is needed between journalists and their sources, as well as the presence of a comprehensive legal code that gives sources the certainty that journalists will be able to keep their commitment in favour of anonymity. That code will serve to strengthen the relationship of trust with the source.
[English]
Investigative reporting relies on relationships based on trusts with sources. Society as a whole is affected when the journalist-source relationship is undermined. Bill S-231 seeks to protect this trust in the best interests of the public.
It is through confidential sources that matters of great public importance are revealed to the public. Bill S-231 will ensure their protection.
[Translation]
But sources are increasingly worried about revealing wrongdoing.
Bill S-231 is founded on a contract based on trust between a journalist and a source. Without this contract, there would be no trust. A journalist's corresponding obligation is to maintain the anonymity of their sources and to protect it at all legal costs.
Bill S-231 amends the Canada Evidence Act and the Criminal Code. First, with regard to the Canada Evidence Act, Bill S-231 creates a new subsection 39.1(1), which provides definitions for "journalistic source'' and "journalist.''
Subsection 39.1(1) allows journalists to object to the disclosure of information before a court, a person or body holding the legal authority to compel the disclosure of information. The objection can be brought forward by a journalist or their media organization because the information or document identifies or is likely to identify a journalistic source. A court, person or body could bring such an objection on their own initiative.
According to subsection 39.1(7), a court or compelling authority could authorize the disclosure of information only if the information or document cannot be obtained by any other reasonable means and if the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source. The court would have to consider, one, the essential role of the information or the document, two, the freedom of the press and, three, the impact of disclosure on both the journalistic source and the journalist. Bill S-231 thus codifies case-law criteria of the Supreme Court of Canada.
Subsection 39.1(8) provides that the burden of proof would be on the person requesting the disclosure, who is in the best position to prove the information is essential and, especially, to show the information is impossible to obtain by any other means. Bill S-231 also provides for an appeal mechanism in subsection 39.1(9).
Concerning the Criminal Code, clause 3 details the judicial process relative to search warrants, authorizations and orders. A new subsection 488.02(1) specifies that the concept of "data'' includes computer data, such as logs and geolocation data. Subsection 488.01(2) provides that only a judge of a superior court of criminal jurisdiction within the meaning of section 552 may issue a search warrant, an authorization or an order related to a journalistic source.
This amendment strengthens the criteria used to justify a request as fundamental as a search warrant. The variety of warrants that a judge of a superior court can issue with regard to journalistic sources would cover, namely, section 492.1 on warrants for tracking devices and section 492.2 on warrants for transmission data recorders.
A warrant, an authorization or an order could be obtained only if, in addition to the conditions required for the issue of the warrant, authorization or order, a judge is satisfied that, on one hand, there is no other way by which the information can reasonably be obtained and, on the other hand, the public interest in the investigation and prosecution of a criminal offence outweighs the journalist's right to privacy in the process.
Subsection 488.01(4) stipulates that the warrant can contain any conditions that the judge deems appropriate to protect the confidentiality of sources and limit the disruption of journalistic activities.
The new subsection 488.02(1) provides that, upon execution of a 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 examine or reproduce a sealed document will have to send to the journalist and the media outlet a notice informing them that they wish to do so. The journalist and media outlet will have ten days to oppose the officer's request for a disclosure if they believe this information identifies or could likely identify a journalistic source. In order to issue a disclosure order, a judge must be convinced there is no other way by which the information can reasonably be obtained.
Moreover, the public interest must outweigh the journalist's right to privacy. The onus is on the police to convince a court that this information is crucial to the ongoing investigation. The onus is therefore reversed. Journalists and their sources benefitted from measures taken following the Globe and Mail and National Post decisions. Today, with Bill S- 231, their rights are strengthened in a piece of legislation.
For the first time in Parliament's history, a bill recognizing the protection of confidential relationships between journalists and their sources can become law. I urge you to adopt this bill in the public interest.
[English]
If we do not protect whistle-blowers, they will not come forward with the information that they possess. This information matters for you, for me and for every Canadian. This is why Bill S-231 is so important.
Thank you and I'm available to answer your questions.
The Deputy Chair: Thank you, senator.
Senators, if you could please be short in your questions. I will try not to cut you off here, but Senator Carignan has gone over time substantially. I will not ask any questions on this matter. I'm compelled to do so.
Senator Joyal?
[Translation]
Senator Joyal: Thank you, Senator Carignan, for your presentation. To begin with, I would like to understand exactly what is being protected and what level of protection is being extended to journalists and their sources. Police can follow a journalist. They can, for instance, seek authorization for electronic surveillance. With everything we know today about geolocation, the police can virtually track a person's every move.
You chose to focus on search warrants, in other words, seizures executed to identify journalistic sources or obtain documents or information that may be in the journalist's possession. If I understand your bill correctly from a practical standpoint — and this may not have been something you were interested in addressing — it does not cover all of the journalistic activities that could be subject to police surveillance or of interest to police, whether in relation to organized crime or sensitive matters involving national security.
Senator Carignan: The primary objective of the bill is to protect journalistic sources, not necessarily journalists likely to commit a crime. In such a case, the journalist could be subject to surveillance.
The part of the bill that deals with the Criminal Code indicates that a search warrant should contain special conditions when it applies to a journalist or media organization and that steps must be taken to minimize the disruption of journalistic activities.
It also states that the information held or seized will be protected only if it is likely to reveal or identify a source. That applies to the search warrant provisions.
The bill amends the Canada Evidence Act with respect to the admissibility of evidence and applies to any court that hands down decisions on matters under federal jurisdiction. As far as the production of evidence is concerned, the journalist would be able to object to producing information likely to identify a journalistic source.
Obviously, when it comes to search warrants and placement under seal measures, the journalist must take the necessary steps. In the case of the Canada Evidence Act, it pertains to the evidence presented to the court; it is a matter of admissibility of evidence.
Common law already includes certain measures to determine whether evidence is admissible, such as the Wigmore criteria. The bill codifies the Wigmore criteria and reverses the burden of proof in the fourth criterion, further to which the court must consider the public interest. So that is the main part.
In terms of civil law, the bill clearly does not cover the entire system of Canadian law. You no doubt noticed that provincial criminal law — or provincial civil law — is not covered.
As we saw in the Globe and Mail decision, Quebec, specifically, was allowed to use the Wigmore criteria in determining the admissibility of the evidence. Supreme Court rulings apply, but the provinces have to pass specific legislation in relation to their jurisdiction.
Senator Joyal: I am concerned about the structure you are putting in place. To my mind, it leaves a hole around the police's ability to provide evidence, themselves, without any contradictory elements, without a prosecutor assigned to cross-examine or argue the facts before the judge.
In a situation where police request a security certificate, they present the evidence to the judge, but some of the information is also disclosed to a specialized lawyer representing the public interest. In this case, however, the police would be alone with the judge. Would it not be advisable to balance out the presentation of facts relied on by police so that the judge's decision reflects that of an adjudicator and not that of an investigator?
Senator Carignan: With all due respect, I disagree.
Senator Joyal: I am not saying the bill should be amended in that regard. I am simply asking you why you excluded that approach.
Senator Carignan: In practice, if the police go before a superior court judge to obtain a search warrant, the judge could ask the media organization to submit observations before issuing the search warrant.
Under the bill, the judge would have the authority to attach any other condition deemed appropriate to protect the journalistic source, in addition to ordering that the information be sealed. From the moment the information has been seized, the police are not allowed to reproduce it or consult the material. It can only be placed under seal.
The court controls the consultation of the sealed material. If the police wish to consult the material, they must give the journalist or media outlet notice indicating their desire to consult the material in the sealed packet. The journalist or media outlet will then have 10 days to apply to the judge and argue that the material should not be disclosed given that it would likely identify a journalistic source. Counsel would then have an opportunity to debate the matter on site and fully discuss the issue of source protection.
[English]
The Deputy Chair: Senator Carignan, you have had an opportunity to explain the entire bill and I think you have covered it all. Please keep your answers fairly short so we can get around to a second round for Senator Joyal later on.
[Translation]
Senator Boisvenu: Senator Carignan, congratulations on your bill. This is much-anticipated legislation given the recent events in Quebec.
This is not the first time the House of Commons or Senate has tried to protect journalistic sources. Ten years ago, the Bloc Québécois brought forward Bill C-426, which had the support of the Fédération professionnelle des journalistes du Québec at the time.
Could you tell us whether your bill essentially reiterates the same objectives and uses the same legal approach to protect journalistic sources, or whether there are differences between the two pieces of legislation?
Senator Carignan: I read Bill C-426, and, initially, I used it as a model in drafting my bill. However, the Supreme Court issued rulings after Bill C-426 and went much further in terms of ensuring protection with the Wigmore criteria.
I set it aside. There is perhaps one clear provision, the one stating that the act takes precedence over all others. I drew on that for the definition of a "journalist'', but I gave greater consideration to the Supreme Court decisions.
Senator Boisvenu: In Quebec, there is the Superior Court, the Court of Quebec, and the municipal courts. Which courts in Quebec will have jurisdiction to apply the act?
Senator Carignan: Any court that applies the Criminal Code, any judge that issues a search warrant under the Criminal Code, any judicial, quasi-judicial body or person that makes a decision based on a federal law. It could be the Competition Act or the Copyright Act, for instance, so anything that falls under federal jurisdiction. The bill would not apply to provincial civil law or criminal law.
Senator Boisvenu: Does your bill also cover the issuing of search warrants? That is one of the problems that has been raised in Quebec.
Senator Carignan: Yes. Clearly, I would say that a third or half of the bill pertains to the issuing and application of search warrants. It provides tools for judges and a guide on how to issue specific orders when a media organization is involved.
Senator Pratte: I have two quick questions for you, Senator Carignan. First, the bill very closely follows the lessons from the Supreme Court, except on one matter: the burden of proof. You completely reverse that. Why did you follow the Supreme Court so closely except on this matter?
Senator Carignan: I read the judgment. Counsel in the National Post decision argued that the burden of proof was on the plaintiff, and I share that opinion. The plaintiff is in a better position to know that there can be no other measures than the use or disclosure of the source.
I think it is too heavy a burden for journalists to demonstrate that there are other measures. It is rather up to the police or the plaintiff to prove that. According to the Supreme Court, the burden of evidence is not a heavy burden in achieving this balance, since it is ultimately a matter of common sense if one looks at all the elements at play. I am paraphrasing the Supreme Court to some extent, but that is what the justices said.
Senator Pratte: In the two series of amendments to the Evidence Act and the Criminal Code, as regards authorization to disclose a document or authorization to disclose the content of a warrant, the seriousness of the crime is not considered whatsoever. Do you not think that it would have been appropriate to consider the seriousness of the crime that is alleged or under investigation?
Senator Carignan: No, because in weighing the public interest against the interest of the administration of the justice department, the judge will consider the seriousness of the crime. It is among the indicators to be used in applying the fourth part of the Wigmore test. There could be some situations where we might want to protect the source, regardless of the seriousness of the crime committed, objectively speaking, since the public or political body involved requires protection. For example, it might be a case involving the prime minister, who might have committed a minor infraction that had degenerated into a huge conflict or led to a political crisis.
[English]
Senator Batters: Senator Carignan, some have suggested that the definition of "journalist'' in this bill should perhaps be more specific and more expansive, perhaps including bloggers, editors, columnists or freelancers, for example. I'm wondering if you're open to widening the definition of journalist under your legislation or if you feel that the current definition sufficiently addresses all of those different groups.
[Translation]
Senator Carignan: I think the definition already includes editorial writers, columnists and everyone in that environment. It is a broad definition, as it was intended to include as many people as possible, both employees and freelancers. It will be up to the court to determine the balance that is in the public interest. According to one aspect of the Wigmore test, the court must verify whether the relationship between the journalist and the source must be protected in the public interest. That is more or less the term that is used. This allows for consideration of the idea of a journalist, which could even include a blogger, for example. That is clearly stated in the National Post decision.
[English]
Senator Batters: Your particular bill requires search warrants, authorizations and orders relating to journalistic sources to go to a superior court judge rather than to a justice of the peace. Why do you think that's a better option, and do you foresee any court delays arising from that particular change, given that our committee has been studying that issue?
[Translation]
Senator Carignan: No, I do not think that would cause delays. The Superior Court justices are available for this type of file.
We saw an increase in the degree of protection when the Superior Court is involved as opposed to a justice of the peace. There is a difference in the status, training and experience of justices of the peace as opposed to Superior Court judges.
Justices of the peace play a fairly technical role. They are responsible for issuing search warrants. They have a pile of files on one side at the start of the day, and the next day, the pile is on the other side. At the Superior Court level, the judges pay very close attention to and are aware of constitutional aspects. I think the legal community is in agreement that there is a greater degree of protection when the Superior Court is involved.
Senator McIntyre: Thank you for your presentation, senator. I commend you on sponsoring this bill, which is tremendously important. There are no laws in Canada right now that protect the confidentiality of journalistic sources, including whistleblowers. We have to rely on the jurisprudence, in particular the two Supreme Court of Canada decisions in the National Post and the Globe and Mail, which analyzed the constitutional protection of journalistic sources. As you stated, that is when the Wigmore test emerged. The bill seeks to protect journalistic activities, in particular the use of whistleblowers and other confidential sources.
That said, are you confident that journalists and their sources will enjoy better protection once this bill is adopted?
Senator Carignan: Given the current judicial context, it would provide sufficient protection. To go any further, journalists would have to make compromises as regards a professional body. This has been the topic of discussion for several years, that is, whether journalists should be members of a professional association similar to members of the bar, for instance. That idea has always been rejected.
Optimal protection could no doubt be provided through a charter, the Quebec charter, in particular. Given the current evolution of the concept of a journalist — the media are evolving quickly —, that is the best possible solution.
Senator McIntyre: Senator Pratte referred to the burden of proof. If I have understood correctly, the burden of proof was the responsibility of journalists previously.
As part of your bill, the burden of proof will now rest with the Crown. I think that is good. Instead, it would be up to the Crown to provide proof and not the journalists themselves. Do you agree with that statement?
Senator Carignan: I share your opinion, because the police have many more ways to provide proof that there are no reasonable alternatives than the arrant in question or to obtain the information in question, unlike journalists.
[English]
The Deputy Chair: I wonder, Senator Carignan, if you can keep your answers a little bit shorter.
Senator White: I have two questions.
In relation to defining "journalist,'' it refers to information for dissemination by the media. The word "media'' has a new meaning in today's world. Should it not be "media organization'' or a definition of "media means media organization''?
[Translation]
Senator Carignan: I considered that idea, but I found that it was more appropriate to place it in the broader sense of the media, including new media, given the rapid and meteoric rise of new communication media.
[English]
Senator White: My concern would be that we would have members of the Hells Angels blogging in an attempt to try to disrupt the lawful wiretap. That's what I was looking at. When I look at media, I think that blogging would be included. Even if it was on a limited site, it might impact negatively.
[Translation]
Senator Carignan: That is why the court must apply criteria before it gives authorization. In particular, the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source. At that point, we have different criteria. This part of the test is fundamental for judges who might not consider, say, a blog by the Hells Angels as a journalistic source. I do not think it is in the public interest to maintain a regular connection between the source and the Hells Angels.
[English]
Senator White: My next question will refer specifically to where this is a problem.
I have been watching all the media reports. I worked 32 years in policing in three provinces and three territories. I have never seen this problem anywhere except in Quebec. To be pointed, I'm not a fan of legislation that deals with a specific regional problem. Have we seen this issue reported anywhere outside of Quebec in the last couple of years? Every case I've seen has been a problem in Quebec, and if it's a problem about oversight, maybe it's not a legislative issue but an oversight issue.
[Translation]
Senator Carignan: I do not think that Quebec is a global exception because several democracies have codes for source protection. The brief of the Canadian Media Coalition listed several countries with such a code, countries that have certainly faced threats and the need to protect journalistic sources as a result of those threats.
When I was on the Standing Senate Committee on National Security and Defence, I put this question to intelligence services officials concerning the rest of Canada. The answers we received were that, at present, no journalists are being bugged or monitored. This suggests that some may have been in the past and that some may be in the future. I think that's the kind of problem that can be difficult to predict.
One thing is certain: during my consultations with journalists, they told me that since these events, they have felt that sources were more nervous, that people talked less and that sources were drying up because they feared that their anonymity would not be protected.
For that reason alone, if the effect of the bill was simply to create a legal framework that would provide assurance to sources that journalists would have the means to protect their anonymity that would allow those citizens to report abuse, I believe that the objective will have been achieved.
[English]
The Deputy Chair: It's unfortunate we don't have the sworn information to obtain and the actual warrants before us that were issued in the province of Quebec. It's unfortunate we don't have those exhibits before us in consideration of the bill, wouldn't you say?
Senator White: We used to call witnesses to assist, Mr. Chair.
The Deputy Chair: From the RCMP, we're now going to go to the man representing the Sûreté du Québec and after that we're going to go to the judge for questions.
Senator Dagenais, you represented the Sûreté for 20 years. What are your questions and response to the RCMP on the previous question?
Senator Dagenais: I have a question, but not for the RCMP. Thank you so much Mr. Chair.
[Translation]
My question will be quick because time is running out. As Senator Joyal and Senator McIntyre mentioned, the police have many ways of obtaining information, be it through shadowing or electronic surveillance.
We have new technologies now that allow us to do many things. For instance, we can track our luggage around the world from our cellphone in Ottawa, and it is great.
Perhaps you have mentioned it already, but will your bill reassure journalists about source protection?
Senator Carignan: The goal isn't necessarily to reassure journalists as much as to reassure the sources. I think the sources need to know that, in a democracy like Canada, if they speak in confidence, under a mutual agreement where the sources agree to communicate information on the essential condition that their anonymity will be preserved, and the journalist accepts the agreement, this bill will give journalists tools to respect their commitment toward the source's confidentiality and to take all the necessary steps to protect the source's identity. I believe it does this.
[English]
Senator Sinclair: Thank, you Senator Carignan, for the work that you put together on this. Generally, I support the principle. I just want to make sure that we have a bill that's going to work in the final analysis. I've been on the other end of the warrant application process, so I have some questions.
This is one of those areas where the intention is to protect the third party and not the offender. The offender is the person who is disclosing information, I assume, to the journalist. The intention, I gather, is to protect the journalist and his sources.
Going back to the premise of that question, I wonder whether your intention is to limit the application of this bill to only those situations where a crime is alleged, or is it in every situation where a journalist is talking to a source that the police want intelligence about.
[Translation]
Senator Carignan: For me, the bill applies to any jurisdiction under federal authority.
[English]
Senator Sinclair: So that would include situations where the police are merely gathering intelligence by listening to a conversation between a journalist and a potential terrorist?
Senator Carignan: Yes.
The Deputy Chair: Senator Dupuis?
[Translation]
Senator Dupuis: Thank you, Senator Carignan. My first question relates to the journalistic source. Are we still talking about a person here? Because the definition of the source is a source. In your opinion, can an entity other than a person constitute a journalistic source?
Senator Carignan: In my opinion, no, because a corporation would have difficulty disclosing information, unless it was through a physical person.
Senator Dupuis: That's what I wanted to clarify.
Senator Carignan: There has to be a counterpart to protecting the anonymity. With an agreement like this, where the source provides information in return for the promise to remain anonymous, we automatically mean a physical person.
Senator Dupuis: What I was wondering was why not say a journalistic source? Was there a reason for choosing the term "source'' rather than "person'', since we are only talking about a person?
My other question relates to the definition of "journalist''. You said it could be employees or freelancers. So it is a person doing this activity, regardless of whether they are a volunteer for a community newspaper, a salaried employee or a contract worker.
Senator Carignan: Yes. A freelancer might very well have obtained information that is in the public interest. We are seeing more and more freelancers. Their work can be done on a voluntary basis, in the sense that they are not paid, but the information they collect is likely to be disseminated or published. In this sense, this condition is covered.
Senator Dupuis: I am trying to understand paragraph 2 of clause 39.1, after the definition. The current clause applies notwithstanding any other provision of this legislation and every other federal act.
Senator Carignan: Under the Interpretation Act, I wanted to give paramountcy with this provision. If there is any ambiguity between the two statutes, the courts must understand that Parliament intended to give paramountcy to specific provisions that affect the protection of journalistic sources. That is one of the provisions I have included in Bill C-426.
Senator Dupuis: Further on, in clause 7(b)(ii), where the court must determine whether a number of conditions have been met, freedom of the press is mentioned. Does that mean that the paramountcy of what appears in clause 2 over any other federal statute would give paramountcy to the freedom of the press in relation to protecting privacy rights, which is set out in the Canadian Human Rights Act?
Senator Carignan: Freedom of the press is already guaranteed under the Charter. The two rights are protected by the Constitution anyway. This balance between the two rights would be at the constitutional level.
Senator Dupuis: Clause 488.02(2) refers to a journalist and a relevant media outlet. Could you clarify what you mean by "relevant''?
Senator Carignan: Take the example of a Globe and Mail journalist. If a search is carried out of the journalist's office at the media outlet, involving information that The Globe and Mail intended to use, a relevant media outlet might be The Globe and Mail.
Senator Dupuis: Could it be any other body? Because the interest, you know. . .
Senator Carignan: Exactly. It involves a legal interest. The word "relevant'' indicates that the person must demonstrate a particular interest.
[English]
Senator Boniface: As you would expect, one of the questions I'm thinking of is from an investigator's perspective.
Senator Carignan: I expected that.
Senator Boniface: On the definition of "journalist,'' as a follow-up to Senator White's question, I think this is a difficult definition, given where the current industry is. I'll ask other witnesses this as well. From an investigator's perspective, have you thought about how you interpret this in a way that either includes or excludes people, if you know what I mean? For me it's just about anybody who picks up as a pen and identifies as a journalist, and it's my concern from the investigator's perspective to give them the best guidance we can give them.
[Translation]
Senator Carignan: The fact that the person contributes directly, regularly or occasionally to the collection, drafting or production of information for dissemination by the media indicates that this person is responsible for generating information for dissemination. As with any definition, there may be grey areas. The courts will surely have to set the parameters of this definition as it is understood. However, that is the fate of any legislation.
[English]
Senator Boniface: Was there any thought as to whether or not it would be valuable to define what "media'' means?
[Translation]
Senator Carignan: I thought about that. The danger is wanting to protect only one certain type of media and not others. As we are experiencing the explosion of different types of media, it seemed inappropriate to limit myself to one media. The Huffington Post celebrated its fifth anniversary. It has taken on an incredible scope, which I, for one, didn't foresee. I think it is now clearly a media outlet. Five years ago, was the Huffington Post referred to as a media outlet? I am not sure. Now, there is no doubt about it.
[English]
Senator Munson: Very briefly I want to follow up on the questions on the definition of journalism.
By the way, thank you for this bill. I see where the Canadian Media Coalition generally supports what you have here, but there are concerns about the definition of "journalist.''
They are saying that the proposed definition excludes editorial writers and columnists, and that the situation is problematic because editorial writers and columnists, being so visible to the public, tend to receive many tips and confidential information, and moreover it is necessary to stipulate that persons who are acting as journalists when they received information will also be protected.
Would you be open to an amendment to your amendment on making sure that it is specific of including this group?
[Translation]
Senator Carignan: I am open to any amendments that would improve the bill. But, when I read the brief, I did not understand that it might be seen to exclude anyone. I thought it was inclusive. In my opinion, the definition is as broad as possible. It includes anyone who collects information for the purpose of dissemination. This automatically includes columnists and editorial writers. The danger of drawing up a list is that it can indicate that some people are excluded. For me, it was already inclusive.
[English]
Senator Munson: This is a private member's bill, right?
Senator Carignan: Yes.
Senator Munson: We know how long these take. What are your expectations of this becoming law in a period of time that is relevant in light of what's happened in Quebec?
[Translation]
Senator Carignan: If the Senate passes this bill, as recommended by the committee, if the bill passes third reading quickly enough to be sent on to the House of Commons, which has great respect for the Senate's work, and if the bill is passed with a strong majority, it will be an important indication to the government to pay particular attention to it. I expect the government to take note of that. It has already expressed a desire to protect journalistic sources. So it will be an extraordinary opportunity to put words into action.
[English]
The Deputy Chair: I was trying to not ask any questions, but I have to ask this, Senator Carignan, given the fact that you said you're open to amendments. Questions were asked by Senator Joyal and Senator Sinclair as to the coverage of the bill.
There is a section in which you wish to have the superior court judge issue a search warrant. You say in your bill:
. . . search warrant under this Act, notably under section 487, 487.1, 492.1 or 492.2 . . . .
Only one of those sections is a search warrant. The others are authorizations and warrants, and there's quite a difference between a warrant and a search warrant. There's quite a distinction.
It also doesn't cover 487.01. That's the most used, and some people say abused, section of judicial authorizations. That's the general warrant, which is not a search warrant at all. It allows for the police to do whatever they wish. They can do it by satellite; they can do many different things, as Senator Joyal was referring to. The most-used section is not covered under your bill.
Go down further to 188 and 186. You already need a superior court judge to get those authorizations. You not only need a superior court judge but you need the agent to sign an authority on behalf of the minister if it's a federal investigation, or the provincial Minister of Justice if it's a provincially litigated matter. So the composition of the bill will present some problems.
Since you're open to amendments, if you were to give consideration to changing the wording not to identify search warrants but to say judicial authorizations, it would not be to give specifics but to say under Part VI and Part XV where all authorizations are given in the Criminal Code. Would you be open to doing that?
You can think about that while we go to a second round. I'll give each questioner one question on the second round. We'll go to Senator Joyal first.
[Translation]
Senator Joyal: I would like to come back to the issue of the proof required to show that there is no other reasonable way of obtaining the information.
In the case of a search warrant, as Senator Baker said, the police show up with reasonable grounds to believe such- and-such. Here, we have an entirely different procedure, an ex parte procedure between the judge and the police, in which the judge is made an investigating judge who verifies that there are no other practical means than those the police want to present to him.
That is why I'm asking you if there is any way, in order to make the decision-making process as credible as possible, to consider putting in place a procedure before a judge where the judge remains an arbitrator and does not become an investigator. That is where the inherent difficulty lies in the approach you are proposing. I'm not saying that we shouldn't keep it; I'm saying that we have an ex parte procedure that takes a different form than the search warrant procedure.
Senator Carignan: I understand. On the other hand, if we consider that the possibility of intervention by a prosecutor would be included in the issuing of the search warrant, we would need to determine what type of prosecutor could be chosen. I find it difficult to see how it is the representative of a journalist or media outlet, depending on the factual situation, at the risk of seeing the evidence disappear should the journalist be the subject of an investigation.
This part of the bill is a bit tricky. That's why I have included in the provisions of the bill the obligation that the judge would have to provide the measures necessary for keeping the anonymity sealed.
I was inspired by the search procedures at law offices, where the trustee oversees the operation to ensure that everything is sealed. Only afterwards can the debate take place. I made this parallel with the bill so that the measures could be taken to ensure that the information is sealed as soon as it is seized, that the procedure is done and that the journalist's lawyer can argue at that level.
[English]
Senator Sinclair: The issue of notifying a journalist raised itself for me when I was reading this. I am familiar with applications for warrants to search lawyers' offices. There's a requirement to give notice to the lawyer, to the law firm and for another lawyer to supervise.
There doesn't appear to be an obligation here to notify the journalist when a warrant is either being sought or has been issued or a document has been obtained or information has been obtained. There's no ability for the journalist to object when the information is sought to be presented.
Did you give some thought to the possibility of giving journalists the opportunity to object to being searched?
[Translation]
Senator Carignan: The procedure does not exclude the possibility of requesting the cancellation of the search warrant. Protection of the source is an additional procedure, but it doesn't prevent a media outlet or journalist from challenging the search warrant.
[English]
Senator Sinclair: The reason I mention that is for long-term warrants under the Criminal Code there's an obligation after a certain period of time that the police have to notify the accused or the person against whom the warrant has been granted that a warrant in fact was issued relating to perhaps another offender but with them as the target. That doesn't seem to be the case with regard to your bill.
[Translation]
Senator Carignan: The bill targets that specific situation; the effect is not to exclude the other provisions that may apply with a warrant. If it was a long-term warrant such as you mention, it would not remove the prosecutor's obligation to notify. These are specific provisions and, unless they contradict the others, they do not exclude them.
[English]
Senator Sinclair: One of the cases highlighted in the media reports around the situation in Quebec appeared to relate to a journalist who had been the subject of search warrants or search activity for a lengthy period of time — I think years, as a matter of fact — and there was no effort on the part of authorities to notify him or her.
If there had been a provision in the code that applied to that situation, you would have thought they had followed it, but maybe the answer is to put something into this bill to make it very clear that when it's a journalist you have to notify.
[Translation]
Senator Carignan: That is the case, because, if a police officer wants to look at the information, everything is sealed. From the moment a police officer wants to become familiar with the information, he is required to notify and the journalist has ten days to object or to propose ways in which to protect the source. That situation could not happen with a bill like this.
[English]
The Deputy Chair: Thank you, Senator Carignan, for your initiative with this bill.
For our second hour, we have joining us, from the Canadian Media Coalition, Éric Trottier, Associate Editor and Vice-President, Information, La Presse, Ltd.; Michael Cooke, Editor, Torstar Newspaper Ltd.; and Sébastien Pierre- Roy, Lawyer, Chenette, Litigation Boutique Inc., who due to a lack of space at the table is sitting behind his colleagues but will come to the table if they need help answering questions.
From the Canadian Broadcast Corporation, we have Michel Cormier, well-known General Manager, News and Current Affairs, French Services; and Jennifer McGuire, General Manager and Editor in Chief, CBC News.
From The Globe and Mail, we have David Walmsley, Editor in Chief; and from Le Devoir, we have the great investigative journalist Brian Myles, Editor.
We thank you all for attending and for providing the important testimony that you are about to give to the committee.
Mr. Trottier, the floor is yours first.
[Translation]
Éric Trottier, Associate Editor and Vice-President, Information, La Presse, Ltd., Canadian Media Coalition: Honourable senators, thank you for inviting me. My name is Éric Trottier. I have worked in journalism for 25 years, mostly at La Presse.
I am here before you today because, last fall, we experienced something that we did not believe was possible in this country. By pure chance, we learned that the Montreal police service had been spying on the communications of a journalist of ours, Patrick Lagacé, for more than a year, though he was a suspect in no crime. During that time, the police obtained the names, addresses, and telephone numbers of people who had had dealings with our journalist for more than a year. In addition, the police had access to data that allowed them to track his location directly.
A short time after those revelations, we learned that at least six Quebec journalists, from Radio-Canada, from the Journal de Montréal, from TVA and from La Presse, had had their telephone conversations spied on by the Sûreté du Québec. In another incident, Patrick Lagacé was placed under surveillance, this time after asking questions at the mayor of Montreal's office about a ticket that the mayor had received. In all cases, the police were trying to discover the identity of the journalists' confidential sources.
Like all my colleagues, and like all of you, I am sure, I adhere to the concept of a free press, without which genuine democracy cannot exist. You have heard those words a thousand times, mostly here, I am sure. However, since this fall, they ring even truer for us. We thought we were sheltered from this kind of intrusion from those representing the state. We thought that this kind of thing does not happen in a constitutional democracy like Canada. Something good has come from those events: they have given rise to a solidarity, expressed by all the media, to reaffirm the principles and values of journalism. They have also provided an opportunity for parliamentarians to restate how sacred the freedom of the press is.
In addition to La Presse, the Canadian Media Coalition, which, along with my colleagues around the table, I represent here, is made up of five other media groups that are among the largest in Canada. We have come to tell you that we appreciate the speed with which the Senate has undertaken to introduce and study Bill S-231. We wish to offer you our full support.
Without confidential sources, there can be no investigative journalism, no serious journalism, period. This bill is designed to protect journalistic sources but, at its heart, it's about the integrity of our democratic institutions.
The current legislative framework is outdated. The proof of that is clear: warrants to put our journalists under surveillance can be obtained as they are investigating matters that do not constitute criminal acts, let alone serious ones. Nor do investigators have to justify violating the confidential nature of journalists' sources. Without guarantees against police intrusion, the protections provided by the Supreme Court mean nothing. So redressing the balance between police forces and the media is as necessary as it is urgent. The measures proposed in the bell re-establish this balance by tightening the procedure needed to obtain a surveillance warrant against a journalist.
The brief we are submitting to you today proposes some improvements, but, from our perspective, please be assured that the bill, if passed, will represent significant progress in protecting the freedom of the press.
Let me remind you that, as things stand at the moment, Canada seems to lag far behind in terms of protecting journalistic sources in comparison to other major western nations. At the same time, spying on journalists seems to have become a routine investigation tool for police forces. We are counting on you to rewrite this history.
Michel Cormier, General Manager, News and Current Affairs, French Services, Canadian Broadcasting Corporation: Senators, thank you for having us here and thank you for this bill. My name is Michel Cormier. I am the executive director of news and current affairs, French services, for the Canadian Broadcasting Corporation, Radio-Canada.
One of the essential components of Radio-Canada's mandate is to enlighten Canadians by providing them with complete, accurate news and information programming. The investigative reports we produce would not be possible without the cooperation of confidential sources whose guaranteed anonymity is key to their coming forward.
I am sure you will understand that we were somewhat disturbed when, on November 3, 2016, we received confirmation that the Sûreté du Québec had, three years earlier, got a justice of the peace to order phone companies to turn over the incoming and outgoing call records of three of Radio-Canada's most respected investigative reporters: Alain Gravel, Marie-Maude Denis and Isabelle Richer.
The order covered a very long period, nearly five years, from November 1, 2008 to October 1, 2013, which just happens to coincide with the period when Enquête was investigating widespread corruption in the Quebec construction industry. For us, that was possibly five years of confidential sources that could have been exposed, not only in those investigations but in other investigations that we were working on as well, dozens and dozens of investigations with hundreds of sources. That is how serious it was. Two reporters from La Presse and one from Le Journal de Montréal were also targeted by similar orders, as my colleague Éric Trottier said.
What is particularly disturbing about this case is that the SQ asked a justice of the peace to order the disclosure of information that could reveal the names of numerous journalistic sources over a five-year period without any steps being taken to protect their identity. The request was made without anyone being informed. If it had not been for the crisis sparked by the Lagacé affair, Radio-Canada, its reporters, the media and the general public would never have found out about this serious attack on the freedom of the press and the protection of journalistic sources. The SQ's investigation ended in 2014 with no one being charged.
This is why, in general terms, we support Bill S-231. We will be proposing some amendments. I will propose one that deals with journalists participating in the legal arguments.
We need to ensure that Bill S-231 includes a mechanism that will allow journalists and the media to participate, as often as possible, in the legal debates. We are convinced of the problems we have experienced over the past year are largely due to a lack of transparency in the process.
Experience shows that involving journalists in the discussion about transparency in the legal system provides the courts with essential insight. We can give countless examples of when publication bans were issued by a judge, and then reconsidered, often by the very same judge, after he or she had the opportunity to hear the media's point of view. Some prior notice is needed, in our opinion.
We feel that, in the vast majority of cases, there is no reason why the courts could not notify the affected journalist before issuing warrants or orders. That is why we are asking for an amendment to this effect. I will leave it to my colleague Jennifer McGuire to present our proposal in detail.
[English]
Jennifer McGuire, General Manager and Editor in Chief, CBC News, Canadian Broadcasting Corporation: My name is Jennifer McGuire and I'm the General Manager and Editor in Chief for CBC news. I would like to add my thanks to you all for allowing us to speak today.
The amendment I want to discuss is fairly straightforward and it remedies a key problem from the case Michel described that the only perspective the court heard was that of the police. Surely the public interest demands more thoughtful consideration. We propose that before a ruling is made, the journalist involved should be able to articulate why, in some instances, the public interest might be better served by protecting the source than it would be by sharing the information with law enforcement.
This builds on one of the strongest provisions already outlined in Bill S-231; that is, the provision which makes it clear that a warrant cannot be issued by a justice of the peace but instead requires a hearing in front of a judge from a provincial or superior court. We believe this is an excellent standard. After all, obtaining a warrant relating to a news organization should be the exception, not the norm.
A report prepared last year for Montreal's city council concluded that in the past few years more than 98 per cent of all warrant requests presented to the justice of the peace by Montreal police were approved. So clearly, it's our perspective that the bar needs to be higher.
Now, we recognize that in some cases the information would be too sensitive to allow a journalist inside the tent. We deal with this in our proposal by calling for the creation of a special advocate, a sort of amicus curiae, who could, after reviewing the disclosure, make the necessary representations to the judge.
By accepting our suggestions, you can strike a better balance in achieving the core promise of this draft bill: protecting journalistic sources while giving police the tools they need to do their jobs.
I can imagine no better time to reaffirm our country's commitment to freedom of the press. Canadians deserve and demand to be informed. And make no mistake: That quality of investigative journalism matters. Confidential sources play a part in some of our most important stories.
I will add one to the list that you have heard today. Think, for example, about the issue of sexual harassment in the RCMP. The CBC's stories did more than expose wrongdoing. They led to change and they preserved the integrity of one of Canada's most critical institutions and ultimately contributed to the public trust.
The current environment puts the confidential sources at risk, which will have a chilling effect on them and affect our capacity to report news. We need more protection. That's why we are encouraged by Bill S-231 and hope it will be passed.
Our modest suggestion would go far to enhance this bill and preserve the finely tuned balance required to serve the public interest. It would serve as a moderating influence on any authority who might submit an exaggerated or ill- thought-out request, and it would provide the judge with a broader view of the issues at play.
We look forward to any questions you may have. Thank you again.
Michael Cooke, Editor, Torstar Newspaper Ltd., The Canadian Media Coalition: I would like to thank Senator Carignan for his reasoned and passionate support of this bill. I agree with the sentiment and pretty much every word. I will add a few of my own for emphasis.
I'm the editor of the Toronto Star. Like other journalists I know, and for you, too, there is an uneasy understanding between journalists and the police. Most of the time, we are driving toward the same common ideals. In our own ways, we both seek the truth and to expose wrongdoing. So it's of particular concern to me that Canada is one of a few tiny Western democracies without some form of journalist shield law. This is a very small club and we should not be a member.
It's true that the concept of the protection of confidential sources is present in case law, but the problem is that it is not currently applied. Sometimes people forget, or do not know to start with, that many journalists' investigations begin with a reporter being given confidential information from a whistle-blower. Like the proverbial pebble starting an avalanche, sometimes all it takes is a concerned citizen or a civil servant or a serving police officer to confide in a reporter. The basis of this confiding is confidence, trust; it's trusting the journalist. Often if the story is important enough to the public interest, we get a public inquiry, or we get a criminal probe, or we get a change of our law. Sometimes we get all three, which is a glorious trifecta demonstrating the value of our free press.
That free press is getting changed and making our communities better places to live. I suggest these kinds of stories getting that kind of change happen much more in Canada than Canadians think. They happen in English and in French. They happen with the CBC and Radio-Canada's "Enquête''; with CTV's "W5''; to The Globe and Mail's current investigation into how police handle rape complaints across our country, and to our humble selves at the Toronto Star. This work of revealing wickedness, the very revelation of which leads to change, is celebrated across our country, most notably applauded by our own Governor General with the prestigious Michener prize awarded annually for journalism that reveals official negligence or wrongdoing and that leads to change. Whistle-blowers are almost always at the root or almost always the key to journalists exposing this kind of change.
Senators here today will probably remember the Toronto Star's investigations into the allegations of crack cocaine use by then-Mayor of Toronto Rob Ford. The allegations were aggressively denied to the point where the Toronto Star newspaper was covered in spittle directly from the lips of Mayor Ford and his councillor brother, in a public dispute that lasted many months. The allegations were aggressively denied until Mayor Ford was forced to admit he had lied to the citizens of Toronto. Such revelations of public interest, the "Micheners'' and the work being done by my colleagues here would not have been possible without the contribution of those anonymous sources who trust journalists to protect them.
Mr. Chairman and senators, I am worried about what has happened in Quebec in the last few months. Based on what we have learned in the last couple of months, none of those investigations that resulted in widespread authorizations from the bench to gather records of confidential sources appeared to be for any kind of serious crime or crimes for which the journalist himself was being investigated. Rather, all of those investigations were carried out with the sole purpose of identifying whistle-blowers or even stopping simple internal leaks from the police force. That's alarming, mainly because our Supreme Court of Canada established rules to follow before someone — anyone — could ask about confidential sources. Yet all those rules were circumvented in Quebec, and that is why we need the law to change.
We're not asking for a change in an extreme way to protect journalism from any police action; that's not what we're asking for. We're asking for stronger safeguards, more accountability and greater transparency. It's our contention that if these measures are adopted, the hammers in the police toolbox will no longer be used to smash internal leakers or harass journalists because the great care, assiduous and smart, taken by the court will ensure that warrants are only issued when absolutely necessary to investigate very serious crimes, and that's why we suggest these modifications.
Our position is not all investigations warrant police intrusion into newsrooms. We agree that some crimes such as sexual assault and child pornography might qualify for exemptions, whereas possession of false ID or the smaller crimes such as committing a common nuisance, the theft of a trinket or mere police embarrassment would not.
[Translation]
Thank you for listening.
[English]
The Deputy Chair: Thank you, Mr. Cooke.
And now to The Globe and Mail and editor David Walmsley.
David Walmsley, Editor in Chief, The Globe and Mail: Thank you for taking the time to consider this important issue before us today.
Confidential sources exist for good reason. For decades, the public interest of Canada has been served by those who come forward, often at great personal risk, to expose wrongdoing. The Globe and Mail supports the initiative contained in this bill. It applies higher standards that are befitting of the complex and crucial environment of source-based journalism. In particular, the bill places more burdens on the state, namely, that future judicial authorization would have to brought for argument before a superior court judge, and the burden of proof as to why a source's identity be disclosed is removed from the journalist and the onus is placed instead on the police.
Thirdly, the bill promotes a standardized treatment of all sealed material, in effect adding a level of protection around the complexities of our source relationships.
If I may cast the committee's mind back seven years ago to 2010, in that year, The Globe and Mail fought a case all the way to the Supreme Court. We were fighting to protect sources involved in our work around the sponsorship scandal. I sat in the Supreme Court and listened to the arguments. I recognized what was at stake. In the end, the Supreme Court made a favourable ruling.
The highest court recognized that while journalists and sources did not enjoy a blanket constitutional protection, there were clear rules, the so-called four Wigmore tests, by which journalists and the state would be governed regarding keeping a source's identity a secret.
It is worth noting in the national record this afternoon that the bill for The Globe and Mail for that largely successful court case was roughly $1 million. One million dollars: that is an amount very few media organizations have either the ability or the inclination to spend, and when we do spend it, we expect results.
We certainly did not expect to find ourselves here today, responding seven years later to actions that ran roughshod over legal convention.
As an industry, we are appalled at what has gone on with the recent revelations in Quebec. Can anyone suggest that the Charbonneau commission was not in the public interest? Can anyone suggest it would even exist without brave sources and trusted journalism? The unimpeachable work of investigative journalism has to be defended and protected. The Supreme Court ruling we fought so hard for in 2010 clearly needs further strengthening. The senator's proposed bill goes a distance further in providing that assurance. Thank you.
The Deputy Chair: Thank you, Mr. Walmsley.
We now have the editor of Le Devoir, Mr. Brian Myles.
[Translation]
Brian Myles, Editor, Le Devoir: Thank you for inviting me today, Mr. Chair. As editor of Le Devoir, I also support Bill S-231. I should first thank Senator Carignan for taking the initiative to introduce the bill and for achieving a miracle by generating an all-but-consensus among media owners and editors in Quebec and Canada. It is very difficult to achieve a consensus with people like us. Congratulations, Senator Carignan! You succeeded in doing so because the bill responds to a number of our concerns. I will not go back over the importance of investigative journalism; you all understand full well that no investigative journalism worthy of the name can happen if sources are not confidential.
If I may, I would add just one nuance: there are sources and there are documents. It is as important to protect the material as it is to protect the source, to protect what is released and also what is not, because, in investigative journalism, we may move forward because of a combination of sources. The visible aspect is the source quoted in the paper on condition of anonymity and shown behind a screen on television. But there are others before them who must be protected.
It is important to see journalism as a craft, not a profession. If attempts are made to persuade you that journalists as a group must be defined, I urge you to resist that temptation. There is no consensus within our craft for it to become a profession. There are lessons in the Supreme Court's landmark decision in the "Ma Chouette'' case, which was courageously argued by The Globe and Mail and by other media. The lessons are that we form a heterogeneous and ill- defined group and that we have no access to statutory or quasi-constitutional protection. We have come to terms with a qualified privilege, with a case-by-case logic that courts apply when rights must be balanced. Rights are not established in hierarchical order in our constitutional environment; they compete with one another. We have learned to live with a system of that kind. The Wigmore test has given us quite significant assurance that investigative journalism and our sources will be protected. The bill is helpful precisely in that it reconciles the case-by-case logic with the Wigmore test.
I urge you to understand that there is no real need to consider professional status and the protection of sources in order to achieve this. A number of countries, and more than thirty American states, have refused to give journalists legislation on the protection of sources without those journalists having a status as professionals. The key to success is to provide a reasonably broad definition of journalistic activity. There are concerns about knowing where to draw the line. Could a blogger in the pay of the Hells Angels obtain protection for his sources? I would say that there are ways of not going there. First, by trusting in the judgement of higher courts to attribute value to journalistic activity and then, perhaps, by clarifying the definition of a journalist. To do so, I invite you to adopt the definition used by the Fédération professionnelle des journalistes du Québec, an organization that will soon be 50 years old and that brings together the core of professional journalists active in Quebec.
It is important that any legislation on the protection of sources be enforced by higher courts and higher court judges. Justices of the peace and magistrates cannot be allowed to become involved in assessing requests because that is precisely the problem we have experienced in Quebec. To those asking whether we are creating legislation for a Quebec problem, I say no. This is a national problem that unfortunately has come into sharp focus in Quebec at the moment. When the RCMP decides to put Joël-Denis Bellevance — who is here with us today — under surveillance, they do so as a federal police force with federal powers, acting under federal legislation, the Criminal Code. We must not be so naïve as to tell ourselves that this is a Quebec problem with Quebec police. It concerns us all.
Let us now deal with the definition of the term "journalist''. Some aspects of the bill need to be amended, comprehensive though it may be, specifically subsection 39.1. In my opinion, it should include journalists who are contributing and those who have contributed. Once again, the sponsorship scandal provides the best example. The actions took place in 1998, the scandal broke in 2004, and the last person convicted went to prison barely a month ago. Protection should extend over a long period of time, including for journalists who may have left the craft. It should also extend to senior positions, those in authority who have access to the sources' secrets. That distinction must be made and there must be assurance that journalistic content, the facts, will be protected as much as the opinion, that is, the columns and the editorials because, and you may be surprised to learn this, columns are also sometimes written with the help of anonymous sources.
If you have to look for an additional level of comfort about what is or is not a journalist, let me read you, word for word, the definition that the FPJQ has been using for almost 50 years. The FPJQ defines a journalist as those who, without exercising a parallel occupation or function that is incompatible with journalism, and without being in conflict of interest with the practice of journalism, exercise a journalistic function as their principal, regular and paid occupation.
With that foundation, higher courts will be able to make distinctions between things that deserve protection and things that do not. The system is flexible enough to protect potential bloggers. Ten years ago, we would never have imagined that websites or Vice Media would be asking for their sources to be protected. Today, they can make a clear and specific case for protecting sources, a case in which the opponent is national security. It seems to me that journalists at Vice Media deserve protection. Hence the importance — and I salute your concern, Senator Carignan — to keep the definition quite broad and not to categorize it too much.
In subsection 39.1(7) and the ones that follow, we should include a more protected, more secure concept. The agency or the person making the request should show that they have exhausted all reasonable means of investigation. Basically, we are talking about police officers who are searching the sources and are bringing evidence from them to the judges. We must ensure that the police officers demonstrate that. If you are concerned about the reversal of the burden of proof, I would say that it has already been achieved through the Dagenais decision, which ensures that the rule in trials is that they are public and that publication bans are prohibited. The Dagenais decision also led to a reversal of the burden of proof in the courts. The person requesting a publication ban must make the case that the ban is in the public interest. The onus is not on the journalists and the media to demonstrate that the debate must be public.
I would add — still in relation to subsection 39.1(7) and the ones that follow — that a judge must consider the importance of investigative journalism in addressing the deficit of our democratic institutions. This is important so that the freedom of the press can be weighed against the other rights.
In terms of the amendment to the Criminal Code, I had the opportunity to read my colleagues' brief and I agree with it 100 per cent. Thank you.
[English]
The Deputy Chair: Thank you to all the witnesses for providing us with some suggested amendments, which are very helpful, and the remarkable facts behind some of these warrants. The Criminal Code is supposed to provide protections, so unless you violated sections of the Criminal Code, I guess that's something for an investigation to uncover, but it's certainly, on the facts that you have presented here today, an alarming outline of what's happened to these journalists.
We will go to questions and try to keep them and the answers as short as possible.
[Translation]
Senator Joyal: First, do you think this bill will put an end to fishing expeditions? I'm thinking of Mr. Trottier and others who were tracked for five years. People hope they'll eventually find something. I think that's one of the major shortcomings of the system.
My second question is for Ms. McGuire.
[English]
With regard to the special advocate, I raised that issue earlier on because I had experience with the anti-terrorism legislation, and in its first iteration there was no special advocate in the government proposal into 2001. We proposed one and finally the Supreme Court confirmed the necessity of a special advocate when there are competing interests at stake; and the public interest, of course, is the ultimate objective.
Could you expand more on the status as you see it operating in relation to the media generally?
[Translation]
My first question is for Mr. Trottier.
Mr. Trottier: To the extent that there is no serious protection given to the sources, we could end the fishing expeditions with this bill, or at least reduce the kinds of opportunities available to the police.
[English]
Senator Joyal: As Senator Sinclair has said, there is no obligation to notify the journalist after a certain period of time. In other words, the time factor is not constrained in that bill. That's why I think the point raised by Senator Sinclair is important, if you want to frame the fishing expedition. The fishing expedition is open ended. If we want to put a limit on it, we have to establish criteria or some deadline whereby the police, security forces or whoever will have an obligation to disclose that they did it. Otherwise, I don't see how we can really expect that there will be much change.
[Translation]
Mr. Trottier: That's a good point. Our lawyer, Mr. Pierre-Roy, who is here with us and who wrote the brief, might be able to tell you more.
[English]
Sébastien Pierre-Roy, Lawyer, Chenette, Litigation Boutique Inc., The Canadian Media Coalition: We're confident that the sealing order that is in place automatically when data related to a journalist is seized will have that effect, because if the police force wants access to the information, they will have to give notice. So even if the time period for the investigation is long, before the data can be accessed and the source can be revealed, the notice will be given and that's an element that is satisfactory to us.
As for the special advocate, the way the immigration act works is complex, but it boils down to simply giving access to a lawyer who will have the data and information and will be able to either contest some of the allegations made or just suggest better solutions and limits that may even simplify matters down the road. That is why that was one of the things we had in mind.
Senator Joyal: Who would have the responsibility to designate that special advocate and to whom would he be reporting? Do you see him as somebody who is identified in a pool of lawyers, for instance, that the media would consider being fit to know the domain of what journalism and media operations are, generally?
Mr. Pierre-Roy: I certainly nominate myself.
The point is that in order to make these representations in a constructive manner, you would need lawyers that have a certain experience in media law. There is a pan-Canadian organization of media lawyers in place called Ad IDEM. There are retired members and new members and all of them can act and be sworn as officers of the court to absolute secrecy. That is being done in the immigration context and we believe it could be done here.
Senator Joyal: Mr. Cooke, I see you are nodding.
Mr. Cooke: I was going to add that I think one of the interesting and important things we have heard today is, to answer your question, one would move the granting of these orders from a mere JP's bench to a judge at a higher level and put the jurisdiction there. In my own experience, I've found if you're dealing with JPs on these kinds of search warrants, it's a toss of the coin, so you need to move it up to a more experienced bench.
[Translation]
Mr. Cormier: If I may, Senator Joyal, one of the reasons the fishing expedition lasted five years is because we did not know it was taking place. So if we have to be informed and we have the right to challenge the injunction before it is issued, it will be difficult to spy on us without our knowledge for such a long time.
Senator Joyal: Should there not be limits to the spying authorization? For some wiretaps, a warrant is obtained for a determinate period, after which the authorities must go back before the judge. There are safety features in the system, which is what I think is essential if we want to regulate those police initiatives so that they remain focused on the target, not simply scattered to the winds, trying to catch something.
Mr. Cormier: That's a good point.
[English]
The Deputy Chair: We will have representatives from the Canadian Media Lawyers Association presenting to us tomorrow morning, and that's an excellent question. As you know, under normal circumstances a warrant such as that can last for a year. They have to report after three months, and they have to report to the justice and then they must be given authorization to continue, but it cannot go beyond a year; you're absolutely right.
Senator Joyal: And you remember we passed that legislation here in this committee.
The Chair: Yes, you're right.
Senator Pratte: Mr. Myles discussed this, but I would like to hear other witnesses on this point, which was raised earlier by Senator White.
The issue of surveillance of journalists has been perceived by some as a Quebec-only problem. Many have asked me why we should legislate at the federal level, amend the Canada Evidence Act and amend the Criminal Code since this is a Quebec-only issue. I would like to hear other witnesses on this.
Mr. Walmsley: I think the test we're trying to satisfy here is overreach, and generally those who have the ability to do it are the ones who will do it. I don't think it's a provincial-specific issue. The Globe and Mail faces issues of overreach involving the state right across the country, so I would be very comfortable in saying that it is a federal issue.
[Translation]
Mr. Trottier: Let me remind you that CSIS cannot commit to saying that there has not been or will not be one. The RCMP had no qualms about following two of our journalists, in 2007 and 2008, for quite a long time. Clearly, with the technology available to us, ambitious investigators would be foolish not to use all the means at their disposal. The intent of the bill is to stand in the way of this fine ambition of some of our police officers.
Senator Pratte: I'm clearly in favour of the bill, which will not come as a surprise to anyone. However, I want to be sure that we are doing the right thing and that the balance between searching for the truth and protecting journalistic sources is maintained. That is why I am reassured to see that the Canadian Media Coalition's brief considers the seriousness of the crime in the amendments to be made to the Criminal Code.
As for the amendments to the Canada Evidence Act, I see that's not in there. Would it not be a good idea to include that concept in the amendments to the Canada Evidence Act?
Mr. Pierre-Roy: We see those issues as two different playing fields. There is a need to protect journalists from police investigations that go too far, which has been addressed in the amendments to the Criminal Code. That was the most urgent issue.
In terms of the Canada Evidence Act, we have a privilege against testimony. We have a privilege against interrogations that could take place in an already well-defined arena, with a judge to whom the matter is referred. Quite often, we will not be in a criminal context. That is why we did not include the concept of the seriousness of the crime in relation to the Canada Evidence Act, since, at any rate, the discussion can fully take place, according to the criteria established, before a judge who will render a decision. It will be rarely done in secret.
[English]
Senator Batters: Thank you all for being here.
All of us recognize the vital importance of a free press, freedom of information and the need to protect journalistic sources in order to facilitate that. But I am assuming we would also agree on the paramount importance of our nation's safety and security, and some of the significant situations we've heard about today and recently arose out of the clash between those two competing priorities.
It's my understanding that the courts have currently left this to be decided on a case-by-case basis. I'm wondering if you foresee any problems with codifying the protection of journalistic sources in law. I'm addressing my question to both Mr. Walmsley and Mr. Myles. Does this provide adequate flexibility for dealing with an urgent national security matter, for example, or is the need for protecting journalistic sources absolute, in your opinion?
Mr. Walmsley: The issue of protecting sources, specifically on national security issues, is probably the most complex question that we have. I don't think for a moment that the police involved in national security questions are considering that the journalist is perhaps their first entry point, but often when the journalist is talking to people who perhaps are criminals, that is when the journalist gets scooped up.
There needs to be a relative balance. I think that the idea of an amicus curiae is very helpful with respect to the national security arena, which I would almost separate out from source protection generally.
Let's remember that sources are, under the Supreme Court, to be sedulously fostered, so it is not just the full name or the drive-by tip. It is through discussions and a trusted relationship that has grown and can be demonstrated to have grown over time.
I can't imagine where national security, if the question is implied based on an imminent threat, in any way would satisfy a test of source-based relationships.
[Translation]
Mr. Myles: Since the National Post case and The Globe and Mail "Ma Chouette'' case, the protection of sources is still relatively limited.
I must remind you that, as a G7 country that's part of the Commonwealth and as a healthy democracy, we are at the back of the pack when it comes to protecting sources. We are completely lacking legislation on protecting the sources. The current system does not provide the reassurance we are looking for in matters of wiretapping, surveillance, access to GPS data on a cellphone, where the police can intrude very quickly, as justices of the peace authorize warrants complacently.
It is not so much a question of national security or investigation that must be addressed; it's a question of police laziness. Police officers cut corners and go directly to the address books of journalistic sources to move forward with an investigation. This happens all too often to flush out a whistleblower internally and to punish them for talking to the media. I have seen those cases in my practice. As soon as individuals talk, which is very serious for public institutions, and even more so for police organizations, the issue is not what they said, but the fact that they said it. The bill would make it possible to avoid those punitive expeditions.
[English]
Senator Sinclair: I want to ask you all about border crossings. You know they are not "warrant-required,'' so that when somebody crosses a border, border security people believe they have the right to access your computer, your phone and search you, your shoes, your body cavities and do all sorts of things. Do you think that journalists should have extra protection than those others who are not journalists crossing the border?
Did I catch you by surprise? I'm sorry.
Mr. Cormier: Totally.
Mr. Walmsley: I'm happy to take that.
I think the test of a personal search is that you know you're being searched; that's the first part of it, unlike the fishing trips we have seen.
We know in recent weeks there has been a thickening of the border, and journalists are getting secondary screening in a greater number than they were before in going into the United States. We do now take measures when we go into the United States to try and protect our sources in a greater fashion than we did a matter of months ago.
We have new protocols in place, and we're doing that in a defensive way in order to try to restrict and show a responsibility to the relationships with our sources as opposed to it being in an attempt to prevent the state, per se, coming at us.
When you enter a relationship with a source, the responsibility is as much on you to protect it as it is to prevent the state from figuring it out. When you have technology now that allows for a lot of eavesdropping and other characteristics to be carried out without your knowledge, we have to introduce higher and stricter protocols than ever before, and that's a very real issue we have at the moment.
So I would say, yes, journalists do need to be put through on a fast track and protected line.
Senator Sinclair: It was raised as an issue for the indigenous journalists, for example, who were covering the pipeline standoff in North Dakota, all of whom were searched when they went across the border.
Ms. McGuire: We had an issue of a cell phone being confiscated, and the journalist chose to go back rather than try to cross.
Senator Sinclair: The other area that I wonder about protection is the one-off writers and film producers, a fiction writer or an author who's doing a book about a particular field of criminal activity. Take, for example, the author who did the story about the Hells Angels and talked to many people and may or may not have been a journalist. But assuming they're not a journalist in the context of the definition used here, which seems to imply contributing on a regular or occasional basis, but with some degree of frequency, to a media outlet, what about the protection needed by authors and film producers who are trying to put together a particular single project, or even if they talk to a single source of information and don't have an otherwise ongoing relationship with that source? Could you comment on whether you think they require protection or are protected by this?
Mr. Walmsley: I think the test is less with respect to the employer. It can be a freelancer, and I would put the group that you talk about in that role.
The onus of this legislation is an attempt to try and protect those who are trying to out wrong. Whatever the vehicle, be that a movie or a book, if you had to depend on people who were speaking outside of what is officially their remit, they deserve to be afforded protection based on the public interest offence as opposed to the employee defence.
Mr. Cooke: It's true that a judge will always be responsible for balancing the various interests at stake. I tend to look back at that great Canadian Supreme Court judgment a few years ago in libel laws, which was a great gift to journalists and Canadians. I look at the spirit of that and try and have this law interpreted through the eyes of those judges on the bench that day.
Mr. Cormier: If the onus is to determine whether it's a journalistic act, the collection of information and the intent to publish in the public interest, I think that's an easy way to get at it also, not just to look at how much money the person makes in a month for whom.
Senator Sinclair: Or the status.
[Translation]
Senator Dagenais: I am delighted to see so many prominent journalists at a Senate committee. I can tell you that the last time we saw so many reporters in the Senate was a few years ago, and it was not for the same reasons. This will allow you to see first-hand the excellent work done in the Senate.
Mr. Cormier, you mentioned that the story began on Radio-Canada with Patrick Lagacé's case and that a number of other cases were subsequently disclosed.
Do you think there are still cases that have not been made public? And do you think there would be other cases that would go much further back than the period currently discussed in Senator Carignan's bill?
Mr. Cormier: We don't know. We have no idea. As you know, there's a commission of inquiry that will be starting its work soon in Quebec on the cases before us. Will there be more information coming out? We don't know. That's the heart of the problem, we don't know. Had the Lagacé incident not happened, we wouldn't have known it today, we would have never had the information and we wouldn't be here. That is why we are asking for transparency from the outset so that we can address the issue of injunctions and requests made by the police to a judge on this kind of issue.
Senator Dagenais: Mr. Trottier, could the negative impact of the recent events you have mentioned counteract Senator Carignan's bill or is the fear of being eventually identified likely to persist? Could you lose sources as a result?
Mr. Trottier: As someone said earlier, in the current situation, the sources we are losing right now are asking us to find a safer method to communicate with our journalists. The next day, we felt that some journalists were no longer receiving calls from their regular sources. We are in the process of assessing the consequences. For now, there are an awful lot.
We think the bill will definitely reassure a lot of people because, once again, we are creating a major roadblock for police officers who have no qualms about using those methods right now.
Senator Dagenais: My last question is for Mr. Walmsley. Senator White, who was here earlier, seems to believe that the bill may have been designed to address a typically Quebec problem. Apart from the "Ma Chouette'' episode we discussed, involving Daniel Leblanc, do you think your journalists in Toronto or elsewhere in the country have already been intruded on by police who were trying to find out their sources?
[English]
Mr. Walmsley: Yes, I would say that is the case. I don't know if the committee plans to or has already heard from sources who have been prepared to give up their anonymity, but I can tell you that when you meet them, you realize that that's why we're all here. We're here because they are facing enormous threats, and it has slowed down our news gathering ability. We have to use encryption. We have to do more physical work, which involves flying to places to see people individually. We can't do things by phone as we used to.
Even if it were not the case, we feel it. In some ways, that perception is as strong a test as anything.
Senator Dean: Thank you, everyone, for joining us. It's wonderful to hear from you.
One of you talked earlier about the broadening of the media or the journalistic industry, and there was reference to a couple of organizations that aren't here. The breadth goes beyond that to people that we likely wouldn't want here, and I refer to those that might be called or termed alt-left or alt-right or alt-something else, organizations that have also been enabled by the ubiquity of digital media.
Where do they fit into this? Is it the fact that the protection is extended where it's appropriate, and it goes through the process and stays in the hands of a judge, in which case it might be easier to process? Have you thought about where other types and forms of so-called media organizations fit within this ambit?
Mr. Walmsley: I would say that any organization involved in public interest journalism would fall under this. The number involved in public interest journalism is relatively small versus the plethora of material that is disseminated. That means that I'm actually distribution agnostic; I don't have a view. If you work at a paper or you work only in a digital sphere, there is one way or another that you're going to trip yourself up.
If you're dealing with public interest work, then the discussion of protection has to be very relevant. Generally, our view would be that those who are out just to cause mischief, cause trouble, play a political spin game, they fail at that test that currently exists already.
Mr. Cooke: Going back to the Supreme Court ruling on libel with journalism in the public interest, it's a standard for libel. It could well be and perhaps should be the standard for this legislation once it's adopted, we hope.
In the end, the courts will rightly determine — and it will be become common law — what kind of journalism applies to these protections. It's a great question and something that troubled us. We've thought a lot about it.
It needs to play out. It's very granular, but they are very important grains.
Senator Dean: I will say that I'm deeply supportive of the legislation. I was just worried about the fringes of it.
[Translation]
Senator McIntyre: Thank you for your presentations. In November, following the revelations about the surveillance of journalists, the Government of Quebec announced the creation of a public inquiry into the protection of journalistic sources. However, the mandate of the commission is limited, for now at least, to investigating police investigation practices. Mr. Walmsley and Mr. Cormier, could you comment on this inquiry?
Mr. Cormier: Our main concern — and we have discussed it at length among ourselves and with the Fédération des journalistes — is that we absolutely don't want the inquiry to be about the work of journalists, but rather the work of the police.
We want what happened to lead to corrective measures to prevent this from happening again. We won't go too far in the discussion, because the inquiry will start hearing from witnesses, but that's basically our main concern. In terms of how far this should go, I will not comment on that.
Senator McIntyre: Mr. Walmsley, would you like to make a comment?
[English]
Mr. Walmsley: Yes. I recently ran a piece in The Globe and Mail by Michel Cormier, because I think he puts it better. He's closer to it, and it's his team. But I look over my shoulder at the possibility that such an inquiry could be taking place in any other city or province. The test we are struggling to satisfy is one whereby we can understand, on the one hand, the need for police protection with the journalistic protection, and I'm not convinced at the moment that the inquiry in Quebec has wrestled with that in an appropriate balance.
I think there needs to be, as Michel says — I agree with him — the idea that looking at journalism is probably the false balance. It really should be looking at police behaviour almost unilaterally.
[Translation]
Senator McIntyre: A commission of inquiry is good but it's still just a commission of inquiry. As we can see, Bill S- 231 goes a step further in amending the Criminal Code and the Canada Evidence Act. For instance, in terms of the Criminal Code, it structures the judicial process for search warrants, authorizations and orders.
You said you were hoping for a slight amendment to the bill. That said, with or without amendment, do you think the sources will be more comfortable disclosing information if the bill becomes legislation?
[English]
Mr. Walmsley: I do. I have examples where I have sources on stories who have raised this issue. They haven't walked away from us, but they are aware of it. Again, the sources are often on a case-by-case basis, but what they have in common is the desire to stay secret often because of personal risk. On the odd occasion, we can get sources to sign affidavits that say if it gets to the final point, they will go public, but those are rare, and I think there is a broader chill and certainly an awareness. When we say, "We will provide or afford confidentiality to you,'' the challenge they offer to us is, "How can you guarantee that?'' And, of course, we can't.
Senator Sinclair: I apologize. We have another committee that's just starting.
The Deputy Chair: I was going to say that. Another committee is now starting, so some members will have to leave.
Senator Boniface: I'm one of those members. I will go and follow up later.
Senator Dupuis: Why don't you raise your question?
The Deputy Chair: Why don't you first, then.
Senator Boniface: Thank you.
I'm going back to the question of definition and turn it in a different way. How would you frame it if you were talking to the police in terms of how to interpret the definition of "journalist,'' the practicality of this and making the decision at the front end?
[Translation]
Mr. Trottier: In our brief, we made an addition to the definition that covers the profession of journalist relatively well in the bill. We have added the fact that the person must earn a living primarily by collecting and distributing information to the public. We think we are close to coming up with a definition that would achieve consensus and that would make it possible to protect all the sources that must be protected.
Mr. Myles: I would like to just mention the criterion of public interest that keeps coming up in our conversations and that the courts are using anyway, which is important.
This criterion governs the practice of the profession so that it is practised when there is no conflict of interest. That's the person's main activity, the activity for which the person is compensated, and if the journalist is a freelancer or casual, they are not involved in related activities that may be a conflict of interest or an appearance of conflict of interest. So someone who is a fake journalist and who is feeding a department store or big company brand would not be protected as a source because of the principle of incompatible duties.
Senator Dupuis: Thank you for making that clarification, because I think it's very important. In the amendment you are proposing, there's a question of tightening the definition of "journalist'' as a person engaged in a primary paid occupation. Is that the nature of your amendment?
I would also like to understand what's behind the police work with respect to search warrants. I understand that they don't take them out of their hats. That's why I would like to better understand what motivates such and such a police force — be it the SPVM or the RCMP — to request warrants for national security or other reasons.
Could you help me better understand the circumstances behind this hunt for warrants by police officers?
Mr. Trottier: I could talk to you about the Patrick Lagacé case. The most egregious situation caused quite a stir, and it involved Denis Coderre, the mayor of Montreal. Mayor Coderre had received a ticket, and something happened with regard to the payment of the ticket. Patrick Lagacé heard about the story and simply made a call to the Montreal mayor's office. The same day or the next day, Mayor Coderre called the chief of police to ask him how Patrick Lagacé could have known about his ticket and his failure to pay. Patrick Lagacé was then investigated, because people wanted to know who was talking to him.
Senator Dupuis: Thank you for providing this example, because it shows why I'm asking the question. In other words, a police officer didn't wake up and say "it would be good to monitor Lagacé.'' A mayor asked his chief of police a question.
We'll probably never know the whole story. Did the chief of police feel intimated by the mayor's request? Was the chief of police pressured? That's what I was trying to understand better. It seems that we're only focusing on the fact that there are police officers. I'm very aware that the police use methods or take action because they receive orders.
Are there types of situations other than the specific case you're describing?
Mr. Trottier: The other type of situation is the first story that came out regarding Patrick Lagacé. The police's internal affairs department was investigating a police officer's behaviour. At the start, it wasn't a criminal investigation, but a quasi-disciplinary internal affairs investigation. The police officer was believed to be leaking information, in particular to journalists. While searching for information on the police officer, they obtained other types of information. There was a story of fabricated evidence, and during their investigation, they discovered that Patrick Lagacé often spoke to this police officer.
Of course, the police officers responsible for the investigation could listen to all these conversations and spy on them. However, instead of doing only that, they decided to investigate Patrick Lagacé, since he often spoke to the police officer being investigated. That's how they started this investigation, which lasted over a year.
Mr. Myles: There's also an underlying culture. I was the president of the Fédération des journalistes for four years, and I was in close contact with the major police organizations. There's a culture of secrecy and message control. When people show interest in the sources of journalists, they want to identify a whistleblower, someone who dared to speak and break the culture of secrecy.
Police officers don't act alone. They act according to a chain of command and a hierarchy. We're wondering — and the commission may be able to tell us — whether this could be traced back to policies.
There's an underlying culture of secrecy, and not only within the police forces. Public institutions also tend to look for whistleblowers and punish them. The most blatant example in Ottawa was the case of Sylvie Therrien, who spoke out about employment insurance quotas. She lost her job.
Mr. Trottier: In all these cases, within what has been revealed up to now, the idea was to obtain information on police officers who were journalistic sources. At the root of all this, we learned that, in 2015 — I think Le Journal de Montréal revealed it following one of our stories — one of the heads of the Montreal police said that he had had enough of the leaks and that he wanted to find out who was behind them. We hope the commission will look into this so that we can truly find out that, initially, an order was issued.
I said earlier that, when the technology exists, it's very tempting to use the technology to get to the bottom of things. Clearly police officers will continue to use it as long as Ottawa doesn't create legislation.
[English]
The Deputy Chair: Senator Carignan, you have the last question, the last word before the committee.
[Translation]
Senator Carignan: I want to thank you for being here and for speaking about this bill.
You've each slipped in a few words, every now and then, but the bill's purpose is also to protect the source. I want you to talk about your practical experiences and to explain why the source must be protected.
Tell us about the vulnerability of the whistleblower and what threats the person faces, whether the person's fears have a physical, psychological or financial impact or whether organized crime is involved. Can you explain how a source feels psychologically and how the source feels threatened?
Mr. Trottier: We've had a number of situations at La Presse. My colleagues can speak along the same lines and provide more details. In the past 15 years, senior officials or police officers have spoken to us for reasons of public interest. They were aware of a story unfolding, of a situation or of misdeeds occurring around them, and they decided to speak out simply to serve the public interest. They knew the risks. However, they believed it was appropriate, given the public interest issues at stake, and they lost their jobs. They were dismissed because their employer obtained evidence against them or because they were simply suspected. In some cases, there were forced retirements, but there were also direct dismissals.
These sources experience tremendous stress when they approach us. That's why — it was said earlier — since the Lagacé story has come out, many people have kept silent. People feel as though they're playing with fire when they speak to us.
There's currently no legal protection, and the police forces take full advantage of this. In any case, in Quebec, we have seen this become a fairly regular practice. This has certainly caused significant stress. My colleagues can talk more about it.
[English]
Ms. McGuire: I would use the RCMP example that I referenced in my remarks. When Natalie Clancy was doing that story, she spoke to dozens of women who were telling her that in the culture in which they worked, they were more afraid of retribution from their bosses than they were of dealing with criminals externally on the job. In this case, it wasn't trying to change the accountability of a public institution. It was a work environment that was untenable.
Without the actions by the journalists to show they take it seriously and will honour the commitments we make to people who are taking very big risks in the context of their own lives, the added protection of sources that you're proposing today we feel would benefit all of us and certainly support the practise of good journalism.
[Translation]
Mr. Myles: There are trust issues, and fears as well. The sources aren't dupes. They know they'll be tracked, so the first thing they ask us is how we can protect them.
Today, since we know that police officers are spying on us, we must show that we're very vigilant about technology. When we meet with our sources, we don't bring our cellphone with us. We must show them that we haven't made calls using cellphones, we've kept conversations that could be intercepted to a bare minimum and we've made sure only the source and the journalist know the meeting place. We need to be a bit paranoid and to make sure we haven't been tailed.
Consequences range from job loss to sanctions, as well as the loss of social status. Sometimes, it's even a matter of life or death. I have a concrete example. A source called me, and I thought I was going to hear a new story. Instead, the person spent an hour sharing a "political last will and testament'' with me and told me "I have spoken a lot recently, and if anything happens to me, I want someone somewhere whom I trust to know it as well.'' Things can go that far in extremely serious cases involving organized crime, where the whistleblower is under enormous pressure.
No sources who spoke to the media have come out unscathed after being publicly exposed. Protection is important. There's talk of investigative journalism disappearing if sources no longer trust our ability to protect them.
It's not only for our sake. In any event, the government must ensure that sources are protected and must curb the police's appetite for our address books.
[English]
The Deputy Chair: Thank you.
Thank you very much, Senator Carignan.
I also note the presence in the audience here with us today of Joël-Denis Bellavance. Bob Fife was here. Many great journalists around the room are with us here today.
We want to thank all of our witnesses here today for their outstanding testimony that we're going to use in crafting the type of legislation that Senator Carignan and the rest of the Senate want to see passed in this institution.
(The committee adjourned.)
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