Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 22 - Evidence - February 16, 2017
OTTAWA, Thursday, February 16, 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 10:30 a.m. to give consideration to the bill.
Senator George Baker (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we continue our consideration of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).
We have with us today, from the Quebec Federation of Professional Journalists, Stéphane Giroux, President of the Board of Directors; Caroline Locher, Executive Director; and from the Canadian Journalists for Free Expression, Tom Henheffer, Executive Director.
Tom Henheffer, Executive Director, Canadian Journalists for Free Expression: As recent events in Quebec and elsewhere in Canada amply demonstrate, journalists are vulnerable to often arbitrary and summary treatment concerning search warrants and production orders with regard to sources.
Ben Makuch of VICE News is appealing a court order to turn over his communication with his source to the RCMP. While working at VICE, Makuch communicated via the messaging application Kik with an alleged Canadian member of the group ISIS in Syria. As a result the RCMP demanded access to Makuch's chat records.
Ben is a now facing jail time, a fact that has potentially ruinous and has far-reaching implications for press freedom and the integrity of journalism in Canada. The public's right to know is at risk.
As well as the legal action against Makuch, news outlets reported in 2016 that police had issued warrants to spy on at least eight journalists, checked phone records to see if officers had been in contact with journalists, and seized a journalist's laptop. Authorities also called for increased police surveillance powers and criticized encryption for hampering police work.
Last month, CJFE released details of a nationwide poll that only 11 per cent of the 2,316 Canadians surveyed believe that it is acceptable for police to monitor journalists to find their sources, while 70 per cent believe that placing journalists under surveillance undermines freedom.
Journalists play a unique role in our democracy. Because of their independence from government and their objective nature, they are in the rarefied position of being able to communicate with and gather information from certain groups, be they marginalized peoples, members of organized crime, suspected terrorists or other persons who normally would not speak to government, security agencies, police officers or the public at large. Journalists are the go-between for the public who can reach out to these people, tell their stories and shed light on their motives.
These stories, whether they be from protesters, gang members, suspected ISIS militants, or anyone else, are crucial to informing the public. The ability for journalists to disseminate the information depends on an extremely fragile relationship. If journalists are seen to be an arm of law enforcement, or if it is believed that their communications are being monitored, their sources will dry up. If that happens, the public, governments, police and security agencies will all lose because journalists will no longer be able to tell these stories. These relationships are key to telling those stories and they must be protected.
This is why a private member's bill by Senator Claude Carignan, head of the Senate opposition, represents a good start in filling a void in Canadian law protecting journalists.
Bill S-231, now before the Senate Standing Senate Committee on Legal and Constitutional Affairs, stands a good chance of receiving third reading in March or April before sent to the House of Commons for approval. We strongly encourage that this bill be adopted.
Our poll also showed widespread support of these efforts with 70 per cent of Canadians supporting the creation of a press shield law at the federal level. There is a need to codify protection of journalistic sources, whether confidential or not, particularly in regard to the issuance of search warrants and production orders leading to the identity of sources.
Bill S-231 would amend the Canada Evidence Act to protect the confidentiality of journalistic sources. Several sections of this bill provide urgently needed protection in the courts to protect confidential sources and prevent a chilling effect on willingness to communicate with journalists.
This bill has a narrow definition of who can legally call themselves journalists. We would suggest that the definition be widened to reflect the emergence of newer practitioners of journalism such as bloggers. Our proposed definition of "journalist means: "a person who contributes directly, either regularly or occasionally, to the collection, writing or production of information for dissemination by the media,'' including newspapers magazines, television, radio and other broadcast media online or other media, "or anyone who assists such a person.''
Our proposed definition of journalistic source reads: "any source that transmits information to a journalist.'' This specifically does not include the word "confidential.''
We realize this is broad, but there are two reasons for it. First, a court or police agency will usually not know whether a source is confidential or not in advance, and this should not be part of the threshold that triggers special care.
Second, as in the Makuch situation compelling information about a source, even if they are not a confidential source, has a chilling effect on journalistic sources. We recommend all documents seized through search warrants issued against journalists be automatically sealed for at least 48 hours to provide news organizations time to challenge them.
In addition, a provision should be included for regular legislative review to keep the legislation relevant.
Senator Carignan's bill could turn out to be beginning of full legal recognition of how modern, responsible journalists serve the public and protect democracy. Both houses of Parliament should support this initiative.
[Translation]
Stéphane Giroux, President of the Board of Directors, Quebec Federation of Professional Journalists: Honourable senators, I am speaking to you today on behalf of the Quebec Federation of Professional journalists (FPJQ). With almost 2,000 members, we are the largest journalists' association in Canada. In particular, the FPJQ issues press cards and provides professional training. We are neither a union nor a corporate organization. Our principal mission is to champion the freedom of the press and public access to information.
I have been the organization's president since last November, in addition to my job as a court reporter at CTV Montreal. With me is Caroline Locher, our Executive Director, and a former reporter with the BBC in London and CBC in Montreal.
You do not need me this morning to tell you that the profession has been shaken to its core in recent months, as the result of what we might call the spying scandal that has targeted some of Quebec's best-known journalists.
To fully understand the need to protect journalistic sources, you have to know why those sources are so important. Little investigative, in-depth reporting can be done without the contributions of well-placed people in public and private organizations who observe and report wrongdoing.
The Senate cannot forget, for example, how Daniel Leblanc, a reporter with The Globe and Mail, uncovered what later became the sponsorship scandal. It all started with a confidential source, "Ma chouette'', who agreed to talk to the journalist on the condition of confidentiality.
Can our democracy do without similar contributions from people who are prepared to put their careers on the line in order to expose the truth? Absolutely not.
Recently, Daniel Leblanc told me that he had spoken to his source again. "Ma chouette'' told him unequivocally that there would have been no conversations with him if the source had been aware that Daniel could have been under police surveillance. Do you see, senators? The sponsorship scandal may well not come to light if the source had known what we know today: that the police were spying on journalists.
In the light of the scandal, few journalists still dare to communicate with their sources by telephone or by email. They encrypt their communications and hold their meetings in secret locations. This is all in order to protect the sources who, more than ever, are afraid for their confidentiality.
We have looked at Bill S-231 very closely. I will make way for my colleague Caroline Locher, who will provide you with our recommendations. Thank you.
Caroline Locher, Executive Director, Quebec Federation of Professional Journalists: Honourable senators, our president has told you about the urgent need to act in the public interest. The effect of the chill that is already being felt is to the detriment of the public and to the information it receives. In that context, the FPJQ would like to recognize the important work that the Senate has undertaken. The FPJQ supports this bill; it represents a considerable advance for our democracy. In the short time we have available, we would like to focus on three major recommendations we have for the bill.
First, the power of the court. Currently, as they are deciding whether to authorize the surveillance of a journalist, judges hear only one side: the police officers who want the surveillance order or search warrant. No one acts in the interests of the journalists, much less of the sources, or in the interests of information to the public.
We now know that, taking the requests from the City of Montreal Police Service as an example, that, in the last three years, justices of the peace have granted 98.6 per cent of requests and orders that number in their thousands. That means that spying on a journalist has become disconcertingly easy. In order to ensure some balance before judges receiving requests for surveillance or searches, the three following points must find a place in the bill: (1) that the media can represent themselves in cases where they are "innocent third parties'', meaning that having them represented would not obstruct the police investigation; (2) if that is not possible, a friend of the court — the legal term is amicus curiae — or a specialist lawyer must be allowed to be present to represent the interests of those who are not represented; (3) as a basic minimum, the court must itself start the process of weighing rights, even though the journalist is not opposed to revealing a source, which may be the case with small media outlets and with journalists who defend themselves.
Ladies and gentlemen, you do not need me to tell you that Canada lags behind in protecting journalistic sources. We should look to exemplary legislation internationally, such as in Australia, New Zealand, Austria and most American states. The law in Belgium, for example, sets a limit on the ability to put a journalist under surveillance to grave threats to the physical safety of one or more people, such as in terrorist attacks, for example.
So, how do we restrict the disclosure of a journalistic source as much as possible while still allowing the police to conduct their investigations? Revealing a source must be the last resort. So it is important to add, in clause 7, that "all efforts have been made by the person requesting the disclosure to find a source other than the media organization''.
It is also important to address the notion of "serious crime''. The Supreme Court has ruled that this standard is subjective. For example, falsifying a document may constitute a serious crime, in the same way as a murder or a terrorist attack. However, which of those crimes justifies spying on journalists and exposing their sources? Which of those crimes justifies depriving the public of important information, because sources are too frightened to talk to journalists? We invite the Senate to consider that question. Could we find an objective standard of what would constitute a crime sufficiently serious as to justify identifying a journalistic source?
We will finish with the proposal to broaden the definition of "journalist'', which is already very appropriate in this bill, with two minor recommendations. So, in clause 39.1, at the definition of journalist, we would add "or has contributed'' after the words "who contributes'' and "including an employer'' after the words "anyone who assists such a person''.
Ladies and gentlemen, we will be pleased to answer your questions, both on the content of the bill and on the reality of the environment in which journalists practice their craft.
[English]
The Deputy Chair: We will start our questioning with Senator Carignan.
[Translation]
Senator Carignan: Thank you, Mr. Chair. My thanks to our witnesses for being here and for supporting the bill.
First, I would like to ask you a technical question. The media consortium proposed an amendment to the definition of journalist that includes the concept of remuneration. When I drafted the bill, I did not include that idea because I wanted to cover freelancers or people who are working on building their story and subsequently publishing a book or "selling'' the story to a media outlet. What do you, as journalists, think about adding the idea of remuneration? Are you for or against?
Ms. Locher: Actually, we think that your proposal is perfectly adequate. In our reality, we represent neither the interests of major media, with paid journalists, nor of small media such as community radio, or student newspapers. We represent the entire journalistic profession, or craft, and that diversity of the craft is represented within the FPJQ.
We know that there are journalists working as volunteers, in Montreal, at CIBL, in small community radio stations, like Radio Haïti, which could very well be made aware of wrongdoing, for example. In addition, the reality of freelancers is growing all the time with the media crisis. There are student journalists; student journalism is big. Is it likely that, on a small scale, on a university campus, a university employee might confide in a student journalist, who would and up in the same situation as a journalistic source? Or say, at Radio Haïti, if an employee at the Haitian embassy is witness to a form of corruption and talks about it to the community radio station, the station becomes a journalistic source as well. For us, it is important to keep the broadest possible view of the craft, as you have done. We know that the craft is in constant flux, and also represents a broad diversity.
Senator Carignan: My second question is about preauthorizing a friend of the court to be represented before a judge. Such a provision does not currently exist, even with a lawyer's professional privilege, when a lawyer's office is to be searched, for example. Don't you think that there might be a risk of providing a higher level there, one that might be interpreted as giving journalists and the media a greater guarantee than is currently provided by a lawyer's professional privilege?
Ms. Locher: At the moment, the interests of the media are not at all represented when warrants are issued, so there really is an imbalance there. When police make their applications, we know that they are granted almost automatically, as we saw in the Quebec cases. Someone has to put on the brake and check whether, during the process, anyone has considered the importance of journalistic sources, the chilling effect it might have, and the long-term impact on the public at large and the information they receive.
My colleagues and I are not lawyers. Later, you will hear from specialist lawyers who will be much more able to suggest possible approaches. However, it seems clear that it is very important to have a specialist lawyer, or a friend of the court, on hand to represent, not one media outlet in particular, but the principle of the protection of journalistic sources in general. At very least, it seems essential for judges to start the process of weighing rights themselves. That is why we are proposing a change from "may'' to "must'' in clause 39.1, so that, at a minimum, the process of weighing the decision becomes a requirement.
[English]
Senator Pratte: Mr. Henheffer, since last fall the issue of protection of sources and surveillance of journalists has often been presented as a Quebec only problem. Therefore it was said, even yesterday at this committee, that the problem should be solved in Quebec, notably at the commission of inquiry that has been established.
The question has been asked: Why should we change federal laws, the Criminal Code and the Canada Evidence Act, since it is mostly a problem in Quebec? What is your comment on this?
Mr. Henheffer: It's a problem in Quebec in the sense that is where we have uncovered it. It does not mean that is not happening in the rest of Canada. The fact is the same issues that exist in Quebec exist in the rest of the country. There is no protection for journalism. There is a huge imbalance between the powers of surveillance example of that is Ben Makuch, the VICE journalist currently facing jail time for refusing to turn over his notes to the RCMP around his interview with an ISIS militant.
There is an overriding public interest in reporters being able to talk to these types of people. Ben has said many times that there is no way any of these sources would have come to him, or he would have been able to communicate with them, if they believed that everything he was doing was going to be turned over to the RCMP. At the same time he published everything that could have been actionable in his notes, so there is no reason for the RCMP to be going after that information. There is one example there of a chill.
In another case we have had evidence across the country, especially in B.C., of stingrays being used. They are devices that can collect all the data in an area of two to five kilometres square of all cellphones in those areas. Police would use these to try to track down a criminal, but it also scoops up all the metadata and cellphone information.
It can even intercept phone calls from any innocent bystander nearby, which would include journalists. It could potentially be used to determine journalistic sources as well because there is no oversight in terms of how these devices are used at the moment.
There are new, emerging technologies that make this more of a risk than ever and there is a severe imbalance between those things. This is not a Quebec problem; this is a national issue.
Senator Sinclair: Does it capture senators?
Mr. Henheffer: It's completely agnostic. It would capture the Prime Minister's cellphone.
[Translation]
Senator Pratte: There is a passage in the FPJQ's brief in which you talk about the seriousness of a crime, about what constitutes a serious crime. I understand your message, but I perhaps don't understand why you make this comment in the context of Bill S-231, which makes no mention of the seriousness of a crime. I don't quite understand the link, or exactly where you want to go with it.
Ms. Locher: It is in order to specify the limits, in the "authorization'' part of the bill, to specify how far you can go to prevent a source being disclosed. So we could use the Belgian model, for example, and make it as difficult as possible. At the moment, the seriousness of a crime is used to give access to the sources; it ranges from someone forging a signature to someone who is about to commit a murder. The disparity there could be corrected. We are not lawyers, but, in their brief yesterday, media outlets proposed a threshold of ten years' imprisonment as the criterion. That seems quite acceptable to us and it would become an objective standard. So, if a crime were punishable with a sentence of less than ten years, you could not spy on a journalist. That seems acceptable to us.
Senator McIntyre: Ms. Locher, if I understand correctly, you want a slight modification to the definition of "journalist''. The bill has a definition of "journalist'' that applies to the procedures and applications for warrants, authorizations and orders against journalists. In your view, should the definition of "journalist'' include bloggers and those who put out information on social media? Do you believe that people who do not work as journalists for recognized media outlets could be included?
Ms. Locher: The category of people putting out information on social media includes everyone in Canada. The definition deals with those who collect, write or produce information for dissemination by the media. Information is the key to the role. Bloggers can be included in that definition, just like columnists and editorial writers. Journalism takes many forms. We can see how quickly journalism is developing. Five years ago, we may not have seen bloggers in the same way and some of today's media outlets like the Huffington Post and Vice News did not exist. Where will we be in five or ten years? We do not know, hence the importance, in our view, of coming up with as broad a definition as possible and not including any specific roles.
[English]
Senator McIntyre: Mr. Henheffer, what risks are journalistic sources exposing themselves to? Are they possibly physical or psychological threats, demotions or even loss of employment?
Mr. Henheffer: One of the main examples in terms of whistle-blowers would be loss of employment reprisals. We do not have whistle-blower protection in the country for private employees. The whistle-blower protection that was brought in under the Harper government for public employees has never seen anyone make it all the way through the tribunal process. It is completely ineffective.
In terms of a whistle-blower coming forward with information such as with the sponsorship scandal or something like that, the fear of reprisals is very real. You can see this in the Lagacé case and other cases in Montreal. It's obvious the police were trying to plug the leak, and that's why they did the surveillance. There's a serious risk for anyone like that.
In terms of other sources they certainly would be worried about incriminating themselves. People will give information to journalists, especially confidential sources, if released to the public, if their name were associated with it and if the police were able to tap their phones would result in criminal prosecution. There is an overriding public interest that the information be made public. The sources will simply dry up. They already are drying up because people believe that journalists are being spied on, and they are.
Senator McIntyre: Are you confident that this bill will put an end to fishing expeditions?
Mr. Henheffer: It's a strong step in the right direction. If these amendments are adopted to strengthen it, to broaden the definition of journalists and to cover not just confidential sources but any sources, there is a really good chance that the fishing expeditions will be reined in. As it stands right now, the balance is far too in favour of the law enforcement agencies and their ability to surveil.
[Translation]
Mr. Giroux: To answer your question, journalistic sources have good cause for concern about their physical or mental health. Most of the people who choose to share confidential things with journalists to the point of putting their careers and their reputations in jeopardy are not doing so for a laugh; they are deeply torn between loyalty to their employers and what they believe to be the need to disclose a situation to the media. Given that people have to live with that kind of stress, we surely have a responsibility to make sure that those sources do not become even more vulnerable. The burden of protecting those identities rests on our shoulders. In addition, if we have to start feeling concerned that police forces are listening to us, it becomes difficult, not just for the journalist, but also for the source.
Let me be honest with you, senator. Since this scandal broke at the beginning of November, I have noticed that a number of my sources don't want to call me. The scandal scared them, and that is very troubling.
Senator Joyal: I would like to go back to the proposal you made, which is two-fold at the hearing, in that the media outlet in question must be informed and may appear, that is to say, may present its position, and/or have a specialist lawyer, or what, in legal terms, is known as a "special advocate''. That person would be specifically designated to ensure that the presentation made to the judge had all the facts and that the judge did not become an investigator himself by having to go and find information to support the presentation he is hearing. Personally, I have always hesitated to turn a judge into an investigating judge, which requires him to be the decision-maker at the same time as he is gathering items of information on which he has to make that decision.
There are cases in which media outlets can be freelancers, just like journalists. Having the media outlet present in a case like that is not possible, because the outlet is not working for a large consortium with permanent jobs. As you said yourself, the number of freelance journalists is growing rapidly compared to journalists who remain with major media outlets as salaried employees. I am thinking of the written media in particular.
Where in the bill do you see the need to make amendments in order to guarantee the presence of that special advocate who normally should be able to be heard by the judge?
Ms. Locher: In terms of the power of the court, we would first like to see the weighing process become mandatory by replacing the word "may'' with the word "must'' in clause 39(1)(4).
However, the principle is the same, whether it's a specialized lawyer as you mentioned or a friend of the court; it means that the media outlet may represent itself when it's an innocent third party. In terms of the method, the lawyers will have to think about it and see how it might work in the rights balancing process. We are making the argument about the importance of the principle that a judge cannot have only one part of the equation and do the rest of the investigation himself. The two parties must be represented. First of all, our suggestion was to allow the media to represent itself in the case of an investigation into a past event, when it is an innocent third party and when this would have no impact on the police investigation.
The issue of the specialized lawyer is very important, because the lawyer cannot represent just one media group, such as the mainstream media or a media coalition. It must represent the big principles of the freedom of the press. Journalism is open to a large number of people who practice this craft of keeping the public informed. Since journalists may in fact have no access to a litigator with their employer, if they are freelancers or volunteers, it's important for a lawyer to be there to defend the protection of journalistic sources, not the best interests of some media outlets in particular.
Senator Joyal: Mr. Henheffer?
[English]
Mr. Henheffer: I would like to add that the Supreme Court has outlined very clearly in Lessard and National Post that there need to exist protections for the confidential sources of journalists.
Essentially, by having these disclosure orders, as outlined well in the media coalition brief, obtained and executed without the knowledge of the journalists in question makes it impossible for these protections to be put in place.
In that case it's very necessary that either the journalists be made known of these things beforehand or that there be a special advocate present to argue their case.
Senator Joyal: I read Wigmore again to try to understand the principle of public interest that is involved. Wigmore starts with the principle that journalists need to be protected to have a thriving democracy. If this is the principle to protect, somebody has to speak for that principle when there is an adjudication on the basis of proof, or on the basis that the police might try to explain to the judge that there is no other way to get the information or to get that criminal person who is not yet guilty but is a criminal person.
I try to understand that and I think Senator Carignan's bill is very important in relation to that. It has to start with the principle and the objective of Wigmore. Once you clearly understand the objective of Wigmore, you can define a system of authorization that has to remain rational with the objective you want to serve.
That's how I try to conceive the approach of Senator Carignan and the role of the police. The court is in balance there. They have to balance the role of security or anti-terrorism and organized crime, people who exercise their criminal activities at the detriment of public interest generally.
The court is there on one hand to balance the interests of protection of the public and on the other hand the principle that a thriving press is essential in our democracy. It is in balancing those two elements that the judge can come to a conclusion. In doing that exercise the judge has to have in front of him or her all elements of information.
If you put the judge in a position whereby he becomes the person responsible to plead for the public interest in that very specific instance, you unbalance the approach of the system.
That's what concerns me in relation to Senator Carignan's bill. It is a very important approach in relation to that because we would be strengthening not only the democracy but the capacity of the police forces to exercise their responsibility, which is also part of public interest.
Mr. Henheffer: Exactly, but to follow up on that briefly it is important to know that the Wigmore test exists for a reason. Under the current system the vast majority of times when journalists may be coming under surveillance, the Wigmore test is an exercise because it's never going before a judge and there is no advocate there to advocate on behalf of the journalist.
If 99.2 per cent of search warrants are being approved by justices of the peace, there's no opportunity for the Wigmore test to be applied. There is obviously no consideration going to the actual balance of public interest in terms of journalistic sources. That's what this bill strives to rectify.
The Deputy Chair: Actually, Ms. Locher said it was 98.6 per cent.
Ms. Locher: That was just the Montreal police example.
Mr. Henheffer: Yes, there are various statistics.
Senator White: I want to first talk about cell-site simulators, the Stingrays. They have been around over 20 years. There is an issue with cell-site simulators, but I don't think it has anything to do with this legislation. That is talking about accessing information that the public probably would agree with you shouldn't be accessed without a warrant. I don't want to muddy the waters because there is no evidence that there are cell-site simulators across the country tracking journalists.
Mr. Henheffer: I was saying that the practice of digital surveillance is pervasive across the country. There are instances in Montreal where we have journalists specifically being targeted but also in the rest of the country journalists could easily be swept up in this information.
Senator White: As everybody could.
Mr. Henheffer: Yes, absolutely.
Senator White: I just don't want it to look like we have police agencies across the country using Stingrays tracking journalists.
Mr. Henheffer: Right, that's true. We don't have any evidence of that but they could.
Senator White: We have no evidence of that.
Mr. Henheffer: No, not at the moment.
Senator White: The second piece is in relation to the word "chill.'' There are lots of things we've seen happen in Quebec in the past couple of years that caused a chill across the country. That doesn't mean we react as a country to develop legislation to fix a problem that I would argue is in Quebec.
I have been looking for a case and I have seen no evidence that a wiretap authorization to find out who a journalist's informant was happened anywhere else. I haven't seen it. I'm not arguing it's not a problem in Quebec. In fact I would agree with you that it's a problem in Quebec. I'm looking for that case. Maybe the others have a case. If so, I would like to hear about it.
Mr. Giroux: There's a very obvious case that took place recently of Joël-Denis Bellavance of La Presse who was followed by the RCMP.
Senator White: In Quebec.
Mr. Giroux: I believe it was in Ottawa and it was the RCMP, not the Quebec police force. When we ask the RCMP whether they are following any journalists, we don't get a yes or no answer.
Senator White: This legislation doesn't stop the police from following a journalist. We're talking about wiretapping a journalist. If this was an argument that the police shouldn't be allowed to follow a journalist they believe might be involved in criminal activity then that's a different story.
We're talking about wiretapping a journalist. Do you have evidence of one case outside of Quebec where a police agency wiretapped a journalist?
Mr. Giroux: No evidence. However, I'll give you an example. Quebec got swept up in a corruption scandal that led to the Charbonneau commission. Is this evidence that corruption only exists in Quebec? Of course it is not.
Senator White: No, but my argument is we're not writing federal legislation to fix what the Charbonneau commission identified as a problem.
When we talk about whether a journalist showed up on a wiretap we also have to discuss whether they were the primary target as they would have been in some of the cases identified in Quebec where they were looking to find out who the informant was, or were they a secondary target making a phone call to the accused?
That's the kind of discussion we should be having here, not just whether or not journalist informants should be afforded a level of protection. After 32 years in policing I would agree with that.
My concern is this is so sweeping that it has the potential to write legislation that isn't necessary if we had appropriate level of oversight on policing in Quebec in the first place.
Mr. Giroux: Like I said, I do not believe that giving oversight to the police in Quebec would solve the problem. Freedom of the press is not something limited to the province of Quebec. It is Canada-wide.
If we check the methods of the Sûreté du Québec and the Quebec police force, let's check the RCMP, CSIS and other police forces while we are at it.
Senator White: I am not arguing with you. There's an inquiry happening in Quebec today that we'll check. My concern is that we will write legislation that becomes binding on every police agency across the country. We have oversight in British Columbia, Alberta and Ontario. Ontario, in particular, might have the highest level of oversight on policing in the world.
To turn around and state that we will fix a problem that we have only identified in one region and impose legislation across the country is, I think personally, problematic.
The last piece is a question around the definition of media. I am a bit concerned that today the definition of media could be me posting on my Facebook page, whereas the real definition for me is media organization. I am concerned about bloggers being able to access a level of protection that really isn't meant to protect a blogger.
Ms. Locher: Briefly, it has been said that we are a distinct society in Quebec, but it would be extremely naive to think that our police behaves in any different way than the police in the other provinces in Canada.
Senator White: I disagree.
Mr. Henheffer: You asked for evidence as to whether spying has taken place anywhere else. By the nature of this it's extremely secretive. The fact that we found this out in Quebec is extraordinary. By its very nature, it's extremely difficult to uncover these kinds of things.
The Deputy Chair: Senator White, we're going to have the lawyers on next. We'll give you some priority. In fact, I'll ask your question if you wish.
Senator White: Regarding these responses, by law every single wiretap authorization has to notify people if they're named in the authorization. If they're not, they're breaking the law. They have to be notified. When you say we don't know, we do know, actually. We do know who's named in those authorizations by law.
Mr. Henheffer: Assuming if they follow the law, yes.
Senator White: But if they're not following the law, they're not going to follow the new law.
Mr. Henheffer: This can help with the culture shift. To address your question about the independent media, as Caroline stated, the nature of media has changed dramatically.
The way this legislation is written there's little chance that someone who's a terrorist or involved in organized crime could throw something up on Facebook or on Twitter and then argue that they have some kind of journalistic privilege. A judge's discretion in terms of reading the law would prevent that from happening.
We have a large Eritrean community in Toronto. It is important that journalists in that community work, not necessarily on a paid basis because they do not have enough money, to bring Eritrean news forward.
There are examples across the ethnic media of these same things. These people are not being paid for it but they are writing for print in the public interest for their communities and they deserve to be protected by this as well.
The Deputy Chair: As someone who has worked on behalf of the Sûreté for 20 years, we will call on Senator Dagenais.
[Translation]
Senator Dagenais: Let me digress for a moment. Of course, a lot of things are happening in Quebec. However, the sponsorship scandal took place in Ottawa. Anyway, we can play with the words.
Mr. Giroux, we hear so much about the role of judges in protecting journalistic sources from police investigations. When we get to that point, the broadcasting has often already been done on the spot. Since there are more and more independent journalists, how can we be sure that there will be an authority to decide whether the information a source provides to a journalist truly corresponds to what might be defined as being in the public interest? Who can draw the line?
Mr. Giroux: The public interest is extremely subjective. Many people here will argue that what a political party says is not in the public interest; only what my party says is in the public interest. This is the cynical version of what the public interest is.
Generally speaking, news media know their audience and what interests them. Is it in the public interest to reveal that a municipal government has a contracting process that does not follow the rules? Yes. Have we received information from an official recommending that we look into a case because something suspicious is happening with the tenders? Yes, it is in the public interest.
I have spoken with journalists, and I was even one to follow what was to become the Charbonneau Commission. That's how we determine what's in the public interest. Must a court be asked to determine what's in the public interest? That question takes us down a slippery slope.
Senator Dagenais: How does the FPJQ make a distinction between those you call professional journalists and others who communicate on different platforms? Where do you think we should draw the line with Senator Carignan's bill to identify the professional journalists and the independent ones who work on certain platforms? How can we fit all those people into the bill?
Ms. Locher: At the FPJQ, we have developed our own rules. We are a private organization that journalists can join voluntarily. However, they commit to following the Guide de déontologie des journalistes du Québec. Not all journalists are required to be members of FPJQ.
At the FPJQ, we ask that professional journalists work for compensation. Our requirements include that this be their primary occupation, that there be no conflicts of interest or incompatible occupations.
According to the freedom of the press principles, anyone can be a journalist, not just the members of the FPJQ. We are talking about anyone working in the interest of informing the public. This is very clearly reflected in the definition: writing or production of information for dissemination by any media. Those people must be included in the legislation and their sources must be protected.
Senator Dupuis: I would like to go back to what you have proposed to add to the definition of "journalist''. As I understand it, the amendment you are proposing is to include assistants and employers to section 39.1.
Ms. Locher: It is a minor amendment. In some cases, an attempt could be made to force a media owner, who's not a journalist himself, to disclose the source of the journalist he employs. We thought that's important.
The assistants generally include researchers, cameramen, producers and the entire team around the journalist. We thought it was appropriate to add the employer for cases where the employer of a news organization is not a journalist.
The other small amendment was to include the person who contributes or has contributed to the work, because we know that there may be investigations on past sources. The sponsorship scandal is one example, and the investigation spanned many years. So that's just a minor amendment.
Senator Dupuis: You have talked a lot about freelancers, contract employees who do not have an employer, in theory. Is my understanding correct that you want to broaden this definition to include not only journalists, but also assistants and media companies?
I'm trying to figure out whether you want to protect the source, the journalist, or the journalist and the media company. That's not clear to me.
Ms. Locher: For us, it is very clear that the purpose of this bill is to protect the journalistic source first and foremost. The police officer can go and seek out the sources from the journalists they have spoken to, but potentially there might be cases where the police officer might go directly to the head of the company, and that is why we wanted to include the employer.
Mr. Giroux: Senator, I would like to add that often, in cases of extremely sensitive reports, journalists may be asked by the employer to reveal their sources. In the hierarchy of a news organization, a number of people, in addition to the journalist, may know the anonymous source. If my cameraman and sound technician are there, the person installing the screen to hide the identity of the source knows the identity of the person who is hidden. In the great scheme of things, the station manager would know it too.
So we want to ensure that those people are protected in the same way.
[English]
Senator Boniface: I wanted some clarity around taking out "confidential.'' I can't remember which one of you suggested it. First, I would be interested in what that is broadened to include from an interpretation. How does the Crown or the police interpret something that's identified as a source? To me, that makes it very broad.
Mr. Henheffer: That suggestion comes specifically from the Makuch case because he is being asked to turn over his entire conversation with a source. The source was not confidential, but the agreement between him and the source was essentially that his notes would not be turned over to law enforcement. He could publish something freely to the public but the entire contents of his notes would not be given to law enforcement.
The reason for that is because there needs to be a firewall between journalists and law enforcement. Otherwise they will be seen by these sources as being part of another branch of government, another arm of law enforcement.
To restrict this to confidential sources will prevent people from speaking to journalists on the record who then don't want something potentially incriminating to go out that would maybe be in the journalist's notes but not in their report. That's the idea.
This isn't for sources who don't want to be named. This is also to ensure we protect sources that are willing to be named and go on the record but then don't want the entire contents of their whole discussion.
One common practice in journalism is to say something common is on background. A named source may tell a journalist certain information that would be incriminating to them but it's on background, so it's not to be published or attributed to them.
This only protects confidential sources. A production order could be granted to get that kind of information. This would protect those types of situations, without being overly broad. It's generally just to protect the sources. It wouldn't prevent an overriding public interest.
The definition of journalistic is very broad in the way this is written, but it is broad intentionally because we believe that judges in this country have enough knowledge of law and are smart enough to be able to interpret it in such a way as to balance public safety and the public interest.
Senator Boniface: I agree with you that somewhere the judges will sort it out and give some guidance on that. My perspective goes back to the actual investigation. I start with who is the journalist, and I raised this issue yesterday, and we're broadening it.
Senator Sinclair, for instance, asked yesterday: "If I'm writing a book and I'm talking to different people, am I now a journalist?'' The answer was, "Yes.'' I'm thinking as an investigator how to frame this so that I stay within the parameters you're suggesting. Then we add on this issue around source and we take out confidential, and now it seems broader.
If we have the broader definition, the broader issue around confidential source, and then you look at all the steps that law enforcement would have to go through, do all those steps still make sense given the broadening of the issues?
Mr. Henheffer: I'm not sure what you mean by the steps that law enforcement would have to go through.
Senator Boniface: Going before the judge, however we decide that will be.
Mr. Henheffer: You're worried about a situation where there would be a special representative or something, that it would apply to anybody just to initiate the process.
Senator Boniface: Yes.
Mr. Henheffer: I believe the way this is written it would not be expanded that far. When it comes to granting a warrant for something like this, even at the very beginning of the process a judge would be able to tell the difference between an organized criminal who has postings on Facebook and a journalist who is actually speaking with sources for the purpose of furthering democratic debate and such in the country. Those distinctions are very obvious.
I understand the worries of the committee that this could be abused, but I think the likelihood of that is extremely small. On balance, there exists no real protection for journalists right now in the current situation. It is far better that we enshrine these protections than to simply have nothing.
We're talking about broadening the definition of journalists and sources, but right now there's no definition to be broadened. It doesn't exist. We need to start somewhere, and this is a good place to start.
[Translation]
Senator Carignan: Let me go back to the issue of the pre-approval or representation by amicus curiae when a search warrant is authorized.
To me the other side of the coin, the protection of freedom of the press, comes up when after the seizure everything is sealed. When the journalists or the media concerned are told that the official or the officer wants to examine the information, they can speak up and say that this piece of information may disclose the identity of sources. They may ask for the information not to be disclosed, or for special measures to be taken to avoid identifying the sources.
I think that sealing the information attains the objective you mentioned. Do you not think that the fact of adding an amicus curiae would be equivalent to adding a belt and suspenders to the measure? In my opinion, the fact that everything is sealed solves the problem.
I drafted the bill with that in mind, I must admit. I didn't go as far as preauthorization, since in my opinion, sealing the information does the job.
Ms. Locher: I understand your point of view, and your thinking in getting there. Today we know that geolocation was used in the past, and that Patrick Lagacé was tracked using GPS. We know that there can be electronic eavesdropping. We aren't talking simply about the search of a computer or a document.
So for the moment, we think that the brake has to be put on to protect the sources long before the authorization is given, and not after it has been given, because at that point the judge will already have given an authorization. And so the principles of protecting sources, and freedom of the press, particularly for journalists who cannot defend themselves, must come first. In fact, there is truly a lack of balance currently, in the process where only the police officer's lawyer intervenes.
As we have seen, the provision of warrants has become automatic, and that should never be the case. As we have learned, sealing information is not always a solution and it is not always respected. There are problems with that as well. Let's face the problem and stop things right from the beginning, at the outset.
[English]
Mr. Henheffer: Potentially in cases where a warrant can be issued and the police go to get the paper document and seal it, it's possible it would work. However, when it is live surveillance where the police are currently tracking someone and seeing who they are calling as they are calling and getting that information, a sealing order doesn't do anything. They are being tracked live and that information is being disseminated by the police live. In that case the only option to protect the sources is to stop before the warrant is issued.
Senator Joyal: A fishing expedition.
Mr. Henheffer: Exactly.
The Deputy Chair: Thank you, witnesses, for your very excellent presentations to us here today. We appreciate it very much.
For our second hour we have joining us from the Canadian Council of Criminal Defence Lawyers, William Trudell, Chair; from the Canadian Media Lawyers Association, Mr. Christian Leblanc, Chair, Protection of Sources Committee; and Iain MacKinnon, media lawyer. We're also joined by video conference from Montreal by Mark Bantey, Partner from Gowling WLG (Canada) LLP.
I am not about to ask a question before we start, but since we have experts here from the legal profession I have something for you to think about, to turn your minds to, and perhaps to answer during your presentation or in response to questions.
Senators have pointed out that the interception of private communications in Canada can only take place with a judicial authorization from a superior court judge under section 185 of the Criminal Code where it is firmly established.
Plus, it is not just the judicial authorization of a superior court judge that is the existing law but also an authority by the federal ministers or the persons representing the federal Minister of Justice or of Public Safety and Minister of Emergency Preparedness, if it's federal in prosecution or investigation, and from the provincial ministers. There are safeguards, as Senator White has pointed out in the last committee hearing.
The Quebec situation gives rise to a consideration of whether or not it's under the general warrant provisions that you could do anything that no other warrant authorizes you to do in section 487.011. However, that can only be issued by a provincial court judge or a superior court judge.
The issue in Quebec was with justices of the peace. Senator Joyal, Senator Carignan and others pointed out that if you are seizing the records of somebody you must report it to a justice within three months or within a reasonable period of time, and if it's somebody's records you must notify the person.
Perhaps you could explain what you think has transpired in Quebec because some of the senators obviously feel that it would be in violation of sections of the Criminal Code.
I am just throwing that out there for you because that is a major discussion we had with our last panel and Senator White.
First, we will call on the famous Mr. William Trudell, Chair of Canadian Council of Criminal Defence Lawyers for his presentation.
William Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Honourable senators, it's an honour and privilege to be here again.
Not that you were throwing a question out specifically for anyone to address, but it kind of dovetails with what I would like to say here. The preservation of privacy, the freedom of the press and some of those protections that a democracy holds dear have to be protected by the gatekeepers.
The gatekeeper in these cases and the one we are talking about in Quebec was not a superior court judge or provincial court judge but a justice of the peace. It's my respectful submission that justices of the peace, not to fault them, are not equipped in my respectful submission with legal training and background to say "no'' when the circumstances arise.
As I listen to others and not to simplify it, I respectfully submit that there are a couple of issues. There is a gatekeeper issue in terms of warrants and some of the guidance the courts have given us, and there is an investigation problem. In other words, some would criticize the police for going too far. The police may not recognize that a journalist is a special person and see law enforcement as the goal. Unless there is protection and understanding by the gatekeepers, these problems are going to exist.
As I've said it before, with great respect one of the luxuries you have in taking on these important tasks is that other work is being done. The commission in Quebec will be dealing with the very issue you will be dealing with, not just in a Quebec frame.
On March 21st there will be applications for standing. I know some national associations will be making applications for standing. There is no way in a commission that you will keep it centralized only in Quebec because it's a national issue, as my friends from the media have suggested.
We are concerned about the bill. We think it is creating a new class of privilege. The whole bill talks about sources but we are really talking about journalists. That may be inherently conflictual but I leave that for your consideration.
In our respectful submission, the bill does exactly what the Supreme Court of Canada and the National Post say we aren't doing in this country. We are not creating a class privilege. It's a specific case-by-case analysis. I think that has served us well.
If, as I've heard, there is a need to address the protection of journalists, not on a speculative basis, not on what could have happened or what might happen if the police abuse their power, but on real issues, then the definition of journalist is too broad.
Senator Joyal talked about the balance in Wigmore and stuff that is not in the bill, but what I haven't heard mentioned is that innocence is at stake. In terms of disclosure, as defence counsel I don't want an onus on me to show that I can't make full answer and defence unless this is disclosed. Innocence at stake is not in this bill and it must be in this bill. That's the guideline for informant privilege.
There are some defence issues here. I am happy to talk about special advocate if the question arises, but this is a major step contrary to what the National Post decision in the Supreme Court of Canada ascribed.
[Translation]
Christian Leblanc, Chair, Protection of Sources Committee, Canadian Media Lawyers Association: Thank you, Mr. Chair, and good morning, honourable senators.
It is my honour to be here on behalf of the Canadian Media Lawyers Association, which brings together all of the lawyers who practice media law and represent press firms and journalists. We intervened in the National Post case and the Globe and Mail case before the Supreme Court of Canada. We are in a good position to testify about the importance of journalistic sources in a journalist's work.
Many things have been said and I think it is essential to reframe some of them. I myself represented Joël-Denis Bellavance in the case that led to his being followed regarding Mr. Charkaoui's security certificate. At the hearing, I was able to see the restiveness of the police. This was the RCMP and not provincial police forces. Like everyone else, I read in the media, for instance in La Presse, that this person had been followed. I personally accompanied him from his residence to federal court in order to hand the judge a copy of a document he had received in confidence, as was determined in federal court, not in a Quebec provincial court, but at the Federal Court of Canada.
I think we have to acknowledge that the courts did everything they could. We experienced the Globe and Mail and National Post cases, and with all due respect, I must disagree with my colleague Mr. Trudell, when he says that "it served us well''. Unfortunately, what happened in Quebec is a demonstration of the fact that it did not serve us well, and that we must provide a proper framework.
Whether we are talking about a superior court judge or a justice of the peace, judges need a framework. I will be very happy to answer any questions on the amicus curiae, but whether we are talking about an amicus curiae or a lawyer, when a sealed packet is being opened this sort of framework must be made available to the court, and that is exactly what is done in the case of publication ban orders.
When the Supreme Court handed down its decision in the Dagenais case — the key decision in this matter — two important elements were brought forward by Justice Lamer at the time. The first was that rights are not ranked in some hierarchical order; the right of the public to be informed is not less important than the right to a fair and equitable trial, since normally, in publication ban issues, those are the two rights that are in conflict. The second point the justice made is that media have to be informed, and they must be given the opportunity to speak to the judge before the order is issued.
The same things must apply regarding warrants served on journalists. Whether when sealed packets are being opened or when electronic surveillance is being authorized, this other side of the coin related to the public's right to know, which is protected under the Canadian Charter of Rights and Freedoms, must be brought forward to the judge, whether we are talking about a justice of the peace, a judge of the Superior Court or a Quebec court, since we have a demonstration — yes, only in Quebec — that we have reached the limits of jurisprudence. I am sure that this problem is Canada-wide, since the same rules apply everywhere, including the Criminal Code regarding electronic surveillance authorizations.
[English]
The Deputy Chair: Mr. MacKinnon, do you wish to say anything?
Iain MacKinnon, Media Lawyer, Canadian Media Lawyers Association: I'll be very brief because I think this may come up in questions as well. This committee is correct in one of the key issues of the bill that needs to be addressed perhaps more specifically in the wording is the definition of journalist and who is captured by that.
Courts around the world have grappled with that in their own definitions and in applying shield laws. In the U.S. they have found in certain circumstances where a blogger has been captured by the definition of journalist. I think it was the Ninth Circuit of the Court of Appeals. In Australia they made a similar finding.
I don't think there is any correct magic bullet wording. The wording has to capture the nature of the activity being undertaken by the author. It doesn't necessarily have to be paid. It doesn't have to be a professional. Nobody in this room has to reinvent the wheel because Canada is somewhat lagging behind other countries.
Forty states in the U.S., four states in Australia and the European Union have all grappled with this issue. We can all look to their guidance and their wording in their statutory provisions to determine how narrowly or how broadly we want this definition to be.
For example, the European Union has defined journalist as any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication. Arguably, that captures a blogger.
However, it's narrowed for anybody concerned about it being able to include anybody who posts something on social media. It's narrowed by the previous description of somebody who is regularly or professionally engaged in the dissemination. It has to be somebody who does this on a regular basis, paid or not.
As has already been discussed, one of the key issues with shrinking media, budgets, staff and media layoffs there are now ex-professional journalists that worked for major media outlets who are now doing good work and good stories on their own blogs and websites. Sometimes it's for subscription. Sometimes it's for their own interest because they think it's an important story. There is no reason on a principled basis why they shouldn't be covered as well. I think that definition of journalist is a critical issue.
The Deputy Chair: Now we will hear from Mr. Mark Bantey, a partner with Gowling WLG (Canada) LLP. We asked him to present because of his vast experience in this area of law we are dealing with.
Mark Bantey, Partner, Gowling WLG (Canada) LLP: Senators, ladies and gentlemen, good morning. As a lawyer who has been practising media law for some 35 years, I want to express my support for Bill S-231 proposed by Senator Carignan with the fine-tuning suggested by the Canadian media coalition and the Quebec Federation of Professional Journalists.
It has long been clear that the protections elaborated by the Supreme Court in Lessard and National Post are insufficient to safeguard the media's crucial role in a democratic society. While freedom of press is a fundamental right guaranteed under the Charter, the Supreme Court has made it clear that right in and of itself does not translate into a constitutional or generic immunity for protection of sources. The case-by-case model adopted by the Supreme Court has led to a great deal of uncertainty and arbitrariness. As we have seen in recent cases in Quebec, the case-by-case model has not prevented outright abuses.
Short of some constitutional immunity which may or may not be desirable or politically viable, statutory protection is clearly required. Senator Carignan's bill goes a long way in correcting the shortcomings of the case-by-case model. First and foremost, it shifts the burden of proof from the journalist to the person who is seeking disclosure of the identity of the source. In the National Post case, the Supreme Court said that the burden rests on the journalist to establish according to the Wigmore factors that his or her source merits the court's protection.
First, Bill S-231 establishes a presumption in favour of the protection of the sources and that the party who is seeking disclosure of the identity of the source is to establish that the public interest outweighs the right to protect its source.
Second, the bill sets out clearly defined criteria that must be satisfied before a journalist can be forced to reveal the source. It creates sort of what we have now for publication bans and other measures seeking to restrict the open court principles.
Third, the bill recognizes the privilege as a generic one giving a definition of journalist that recognizes the public's right to receive information of public interest from a variety of sources.
Fourth, with respect to search warrants production, surveillance orders and other extraordinary measures, it puts in place a mechanism whereby notice was given to the media and the information gathered or received from the media is immediately placed under seal.
These measures give the media the ability to challenge the validity of the order before the authorities have the opportunity to sift through the material they have seized. The bill would codify the so-called Lessard factors of the Supreme Court and would place the material under seal so that the media's challenge of any such order would not become illusory.
The privilege set out in Senator Carignan's bill is not an absolute privilege. It is a relative one. I submit it does not infringe on the ability of police and powers to conduct investigation and to prevent crime.
Many jurisdictions have adopted shield laws to protect sources and journalistic material. I invite the committee to review the shield laws in Belgium, New Zealand and Australia. Some 40 U.S. states have also adopted shield laws, and those laws have not impeded or decreased the ability of the police to fight crime.
In the current context when the media are under attack even in the United States, it's important for the Senate to take a position in favour of a vigorous free press and adopt the legislation proposed by Senator Carignan.
The Deputy Chair: We will now go to questions.
Senator Pratte: Mr. Trudell, you mentioned the situation of innocence, and I gather from your comments that you disagree with the bill in its entirety or maybe not. If the bill were to become legislation, what changes could we bring to it that would maybe re-establish the balance in the way that you would wish or better balance for the sake of innocence?
Mr. Trudell: We are not against the entire bill. If this committee of the Senate decides there is a need for this, then we move on to the second phase of how we can help you from a defence point of view. One of the factors that should be taken into consideration and should be written in the bill is when disclosure is being considered.
I've already mentioned that I don't think the onus should shift to the defence, but you can build in where innocence is at stake or in order to make full answer and defence. That's one of the factors that specifically protects in this bill the important presumption of innocence and the accused. That's number one. It's silent and I think it could go in there easily.
The Supreme Court in National Post talked about some of the other jurisdictions that have shield laws, et cetera. It decided on balance that a case-by-case analysis was important and we did not need or should not create a special class of privilege.
If you are convinced by representatives of the media or your own experience that this is a problem nationwide, as opposed to a situational problem — and I'm going to use the word "abuse'' — without knowing if a warrant should not have issued, if surveillance should not have taken place, or if the law had been followed, then to create this new privilege class in the face of what may only be a situational problem may cause some issues or concerns.
We are not against the protection of journalists. There is no question about it. We are not against protection of sources. As a defence counsel, I rely on sources all the time. Some people think the defence bar operates on gossip. It may be true, but if you look at the definition of journalists, in this day of false news and everybody becoming a journalist or being able to create some kind of a blog that might fit in with this, it's a lot of pressure on a judge to decide who is a journalist and who is not because it brings some personal point of view to that decision.
If you look at journalistic source, it means a source that confidentially — and that word has already been discussed this morning — transmits information to a journalist on the journalist's undertaking. This bill is to protect sources because it's the source's privilege. What kind of undertaking are we talking about here?
In the National Post case and in The Globe and Mail case there was a paragraph wherein the journalist went to his respected editor who said to give the undertaking. When we see the decrease in the ordinary media as we have known it, where is that sort internal protection?
What does undertaking mean? Is it a verbal undertaking? Is it a written undertaking? How do you protect the source in the wording that is used here?
On behalf of the Canadian Council of Criminal Defence Lawyers, it is most important for us that there is a presumption of innocence when you have a trial. If disclosure is relevant to the defence and innocence is at stake, it should be reflected in this bill. The presumption of innocence and the right to be tried are as important democratic rights as the role that journalists perform in shining the light on darkness where we may not see it.
This is creating a class of privilege that you may decide is necessary. We raise the caution that the Supreme Court of Canada has already addressed that. If you decide to do it, you have to build in more cautions for the defence in this matter.
[Translation]
Senator Pratte: Mr. Leblanc, regarding the definition of "journalist'', in the brief the Canadian Media Coalition submitted yesterday they proposed that we add the notion that a journalist is a person who is "remunerated'' for the work that he does in his "principal'' occupation. There are two concepts here, one being an occupation that must be the main one, and it must be paid work. Mr. MacKinnon seemed to say that we should not necessarily talk about remuneration. So there are two concepts.
I would like to hear your opinion about adding the idea of remuneration, and whether we need to specify that it must be the person's main occupation.
Mr. Leblanc: All of this is related to our concerns. We always refer to the example of the blogger or the person who publishes content on Facebook. We must not forget that the judge — earlier someone referred to the "guard'', and I agree — will always have to make that determination. He will always have to evaluate whether it is in the public interest to protect the source or not. If extreme examples are captured by a broad definition of what is a "journalist'', they could easily be reviewed during that assessment. In other words, I don't think we need to get too hung up on the definition of "journalist'' and "media'', because, yes, we need guidelines, but at the same time the question will be decided case-by-case. When I hear people say that situations will not be assessed case-by-case and that there will be an automatic application, that is not quite true. There is a debate, a request is submitted to a judge, there will be representations, and the judge must give an authorization, and every situation will be analyzed on a case-by-case basis.
The definition of "journalist'' the coalition gave was very good. There are two models. The Australian law in fact refers to media for the general public, and when debates were held in the Australian Parliament the politicians said that provisions should not be broadened too much because they would provide protection to people who did not deserve it. That was being said. In New Zealand the model is completely different. It states that protection will not be framed in that way and that there will be measures taken later. They were referring to the judge's authorization, but it will not be given in the context of the definition of "journalist'' or "media''. They chose a broader definition, as my friend and colleague indicated earlier. As far as I am concerned, both definitions are good. With all due respect, the definition of "journalist'' and "media'' is almost unnecessary. I think that what is important is the authorization stage, and the guidance that will be provided to judges who will be issuing those authorizations.
[English]
Senator McIntyre: Gentlemen, thank you for your presentations. I would like to pick your legal brains.
It appears to me that we have two criteria: the Wigmore criteria used by the Supreme Court and the criteria used in the bill. Looking at the Wigmore criteria, the courts assess arguments regarding protection of journalistic sources on a case-by-case basis and according to four criteria, which also speaks of public good and public interest. The criteria in the bill set the mechanism that a judge would use to authorize disclosure of information, a document relating to a journalist, and a search warrant authorization or order.
What connection do you see between the criteria used by the Supreme Court and the criteria used in the bill?
Mr. Trudell: The criteria set out in Wigmore have stood the test of time. It is more expansive.
First, you start with the relationship in which the communication arises. The relationship must originate in the confidence that the source's identity will not be disclosed. It's a lot easier to apply that when the definition of journalist is understandable and not as broad.
Second, anonymity must be essential to the relationship in which the communication arises.
Third, the relationship must be one that should be sedulously or diligently fostered in the public interest.
Fourth, the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.
In my respectful submission, when you get to the fourth step of that definition it's even a broader consideration of public interest. As a defence counsel I would probably argue that it may include the rights of the accused that may not be included in a shorter definition in the bill.
The disclosure provision is set out in the bill. Subparagraph (7) is the authorization and under subparagraph (3) the document is to be disclosed to an officer.
Senator McIntyre: Subsection 488.02(3) as well.
Mr. Trudell: In subparagraph (3) the judge may order disclosure, and:
(a) there is no other way by which the information can reasonably be obtained; and
(b) the public interest in the investigation and prosecution of a criminal offence outweighs the journalist's right to privacy in gathering and disseminating information
We suggest the innocence at stake issue goes back to the granting of the initial warrant. If you read the bill, it seems to have truncated the Wigmore four-step approach. In my respectful submission, it is a concern that it could be read as less protective,
Senator Joyal: In answer to Senator McIntyre you admit to recognizing that it has changed the onus. It's a reverse onus that doesn't exist in Wigmore.
Senator McIntyre: It is a reverse onus, yes.
Mr. Trudell: I said that in my opening.
Senator Joyal: I didn't catch that. It seems to be fundamental to the overall test.
Mr. Trudell: There is no question I raised that in my opening.
Senator McIntyre: I have a supplementary question, Mr. Chair. This is an important bill because at the present time there are no statutory provisions protecting the confidentiality of journalistic sources, including whistle-blowers in Canada. Basically what this bill is doing is protecting journalistic activities.
I thought what Mr. Bantey mentioned was very interesting. Without clear legislation the court will continue to apply a court-by-court approach to decide if a source is granted protection or not.
The bill may not be perfect but at least it's a starting point. It could put an end to potential fishing expeditions or source hunts. That's my opinion, if you wish to elaborate on that.
Mr. Trudell: I agree with you, senator, but there's a problem at the front end with the gatekeeper. We've used the situational example that apparently has developed in Quebec. If there were no problem at the front end with the gatekeeper, would we be here?
In other words, if a proper gatekeeper had done the right thing in restricting the use of investigative power in Quebec, would we be here? That's a question I'm sure there are lots of answers to.
The Deputy Chair: Mr. Leblanc wishes to make a short comment as well.
[Translation]
Mr. Leblanc: I think we have shown that judges need guidance. The Supreme Court cannot legislate. It deals with facts, arguments and must render rulings. You, however, may legislate. Earlier my colleague William Trudell was talking about "legal training'' and "background''. I am not criticizing his statement. Justices of the peace are lawyers who were crown prosecutors or members of the criminal defence bar. They have all of the necessary legal baggage. What they are lacking are some guidelines. In my opinion the judges of the Superior Court would be in the best position to provide those. I think that would be desirable.
I'd like to go back to the example of publication ban orders, where judges of the Superior Court intervened. They needed guidance. The Supreme Court provided some in the Dagenais case, for instance in saying that the public's right to be informed is just as important as the right to the presumption of innocence and the right to a fair and equitable trial. In addition, they ordered the courts to have media representation in connection with that guidance. Judges do excellent work in Canada, but it is important that they be guided by legislation, since that is what they must apply.
[English]
Senator McIntyre: The bottom line for me is that at the moment we have no statutory provisions and we have to rely on jurisprudence. We have to clear the deck.
Mr. Leblanc: I agree, senator.
The Deputy Chair: Justices of the peace in some provinces cannot issue a search warrant. Justices of the peace in some provinces have no legal training whatsoever. Whereas in other provinces they do. This is just in defence of Mr. Trudell's point.
Mr. Leblanc: My point, Mr. Chairman, was that I don't think it's a lack of legal training. I think it's a lack of guidance through legislation.
Senator Batters: Mr. Trudell, you said in your opening statement that you preferred to have superior court judges deal with these issues rather than justices of the peace. As you know, our committee has been studying the issue of criminal court delays for the last year and you've appeared before us on that.
I'm just wondering if you have any comment. Do you believe that would have any impact on potentially worsening criminal court delays, which are already a significant concern in our justice system?
Mr. Trudell: Senator, do you mean if there were more protections by a superior court judge?
Senator Batters: If a superior court judge had that additional duty.
Mr. Trudell: In listening to myself think and in talking to other people on the Canadian council, the provincial court benches across the country are extremely talented, with wonderful judges who exercise some of the same powers and make some of the very difficult decisions as superior court judges do. It may be very difficult to find a superior court judge in a remote community.
With the greatest respect, I don't believe justices of the peace are equipped, but I do not think that it necessarily has to be a superior court judge. It may be more difficult to get a superior court judge and a provincial court judge may be just as equipped to deal with these. If it's going to add a burden in terms of the front end, I think a provincial court judge is probably very capable of exercising the restraint necessary here.
I apologize if I misinterpreted this, but one of the things we saw in terms of your delay issue is that it looks like there could be an interlocutory appeal. In other words, if a judge orders no disclosure or orders disclosure, there seems to be an appeal right, but it doesn't seem to wait until the case is over.
If you have an interlocutory appeal to review whether a disclosure is going to take place in the middle of a trial, you have a real problem with delay. If the bill is going to change, maybe this is one of those pretrial matters that has to be dealt with by a management judge.
There's no question about it. If I am bringing an application to have the source identified and I believe it's important to make full answer and defence, and I have the right to bring an interlocutory appeal, I'm going to do it.
Senator Batters: those are very good points. Mr. Leblanc, if the definition of journalist contained in the act currently is not changed in any way, would you be concerned that someone who simply has a Twitter feed or a Facebook page could be considered to be a journalist for the purpose of the act?
[Translation]
Mr. Leblanc: Madam Senator, it all depends on the context. We must not forget that, according to the definition, the purpose is public communication. This can't be about a Facebook friend or a private friend. The danger is that the concept of the media or the person who contributes to the public debate through the media is very vague because of social media. So it is difficult at the outset, upstream, to have a definition which, we hope, will be a broad one.
You raise an excellent subtext question regarding the abuse of persons. I want to go back to the concept of true protection. If we are dealing with such abuse through Facebook or a blog, the judge will be able to see that when he or she ponders the fourth Wigmore criterion, and what the bill currently states regarding public interest. That is where the most important assessment will be made. This is what reassures me on the fact that there will not be abuse by bloggers or others using their Facebook accounts. We must not forget that there are political blogs in the United States at this time that are very credible and that have a wider audience than some of the better-known media.
[English]
Senator Batters: Unless you have your account locked up, Twitter is generally public in Canada too. You could have public Facebook pages. I have one. It's not necessarily just people who are accepted to be friends who can view it. The public in general could view it.
Mr. Leblanc: I'm not saying Mr. Trump is a journalist when he uses Twitter, but he certainly uses it to communicate.
The Deputy Chair: We're having some transmission difficulties with Mr. Bantey. If you can hear me, Mr. Bantley, do you have any comments to make about what you may have heard so far in the questions and answers?
Mr. Bantey: The key test in this bill is whether or not the public interest in the administration of justice outweighs the right of a journalist to protect his or her source.
Where Mr. Trudell's concerns about the right of an accused to a fair trial are included, that right is included in the notion of the proper administration of justice. Any judge that is faced with a threat to an accused's right to a fair trial will take that into consideration when evaluating whether or not a journalist should be forced to reveal his or her source.
As interpreted by the courts in the Dagenais/Mentuck test, the notion of public administration of justice is a very wide one. It encompasses many factors that the court could take into consideration before forcing a journalist to reveal their source.
Senator Joyal: Mr. Bantey, I want to corroborate what you say and partly answer Mr. Trudell's concern about the right to a fair trial. In paragraph 22 of The Globe and Mail decision Justice LeBel stated:
The Court concluded that the case-by-case approach, based on the Wigmore criteria and infused with Canadian Charter values, provided "a mechanism with the necessary flexibility to weigh and balance competing public interests in a context-specific manner.''
When the court adjudicates on the basis of what is the right balance of competing interests, the interests of the public for information or the right to privacy and the role of the police to protect the security of society generally, the court has to hear the party, as the court says, with the infused Canadian Charter values. Those Canadian Charter values involve the right to a fair trial. It is another charter of rights that is competing in the adjudication process.
The jurisprudence is pretty clear in relation to that. I'm not sure we need to concern ourselves with amending the bill to recognize the process of adjudication referred to in subparagraph (3). Do you want to comment on this?
Mr. Trudell: It wouldn't hurt.
Senator Joyal: No, of course not.
Mr. Trudell: It's specific and it reflects something that is very important, especially when the onus has shifted. I would hope the onus doesn't stay shifted.
The bill talks about sources. It talks about journalists. It talks about protection in creating a new class. In my respectful submission nothing is the matter. It is almost incumbent to reinforce that one of the most important aspects is innocence at stake.
Senator Joyal: In paragraph 23 of the same decision the court emphasized the importance of the fourth principle of Wigmore, which is the one you stated:
. . . the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.
What we have here is:
(b) the public interest in the investigation and prosecution of a criminal offence outweighs the journalist's right to privacy in gathering and disseminating information.
What did Justice Binnie say in relation to that, and I quote:
. . . the fourth factor does the lion's share of the work, and the court's task is to "achieve proportionality in striking a balance among the competing interests.''
That's essentially the legal decision that is at stake. There are different competing interests. What is the position of the judge in relation to them? In my humble opinion I respectfully submit that justices of the peace don't have all the information and knowledge of the background needed to be part of a process as complex as this one, especially if we had the criteria by which the information could reasonably be abstained and there could be no other way.
You are a defence lawyer. If you had to plead this, it's real proof. There's no other way in which the information could reasonably be obtained. It's not sufficient for the police to say to a justice that there's no other way. A judge would not accept that as being a statement of truth. The judge will want an explanation of the facts in front of him or her to come to that conclusion. That conclusion is intimately linked to the public interest at stake. The bill says "and.'' The two have to be twins in the same operation.
We are doing something much more complex than the Wigmore test, unless I don't correctly read the jurisprudence and the way the bill is drafted. As mentioned in my reflections and question to the witnesses a special advocate is needed. Otherwise, you will transform the judge into an investigator, especially in relation to subparagraph (a), because nobody will be there to counterbalance the truth that will be brought before the judge.
Mr. Trudell: When a Superior Court judge gives a warrant and there's a confidential informant, there's a separate schedule that we don't see where that judge has to be satisfied with the reliability of that informant and the background. We don't get that but the judge goes through that important step.
In my respectful submission, the same tests or the same steps have to be in this bill. Therefore, if a special advocate is necessary, especially with an expanded definition of journalist, who is the source? It's the source's protection here. We're talking about a journalist, but it's just like it's my client's privilege. It's the source's privilege.
You're creating a new class here, so there's no question that robust care and attention have to be at that front end at the gatekeeper stage.
Senator White: We are dealing with a case over a five-year period between 2009 and 2013 of an average of 125 wiretap authorizations per year applied for and approved in the country. If we suggested and accepted that 12 or 10 per cent were in relation to wiretapping a journalist to find out who the informant was or other information, I would argue that it is not even close. The hammer we are to use would far outweigh the concern, particularly when we hear Mr. Trudell argue that the gatekeeper is the important piece.
If either a special prosecutor or a special prosecutor and only specific judges could approve such a wiretap, it would only require minor changes in the legislation rather than dealing with a piece of legislation that I would argue goes so much further than is necessary. Keep in mind that you're absolutely right, Mr. Trudell, from my experience that the gatekeeper is the most important part of wiretap authorizations. Wouldn't you agree?
Mr. Trudell: I agree. In criminal justice we've abandoned the front end and then we end up with looking into delay. It's what happens in the front end. It's the respect of privacy, the rights of the accused, and proper oversight and investigation. To that end, I agree with you, senator.
The Deputy Chair: Wiretap authorizations in Canada can only be given by Superior Court judges. That's the law right now. Mr. Leblanc, you were shaking your head for a moment there. Go ahead.
Mr. Leblanc: The law goes much further than wiretaps. The Patrick Lagacé example in Quebec was DNR orders, dialed numbers recording.
[Translation]
So the numbers that called or were called from the device, which is not technically wiretapping, were also recorded. We are talking about protecting the source in a way that goes beyond listening to a journalist.
[English]
The Deputy Chair: Yes, it does. Subsection 492.2 of the Criminal Code can be issued by a provincial court judge or a Superior Court judge.
Mr. MacKinnon: If I can follow up on Senator White's question and Mr. Trudell's point about it being a gatekeeper issue, that is all well and good in theory. The problem is and the reason why the bill is so necessary is the reality that the gatekeepers aren't doing their job.
In 1991, in the Lessard case and the CBC New Brunswick case, Justice Cory of the Supreme Court set out nine factors to consider when issuing a production order or search warrant against a media outlet. The problem is that we do not even know if JPs are aware of those factors. We don't know if anybody's applying them. They don't appear to be.
The most astonishing number to me in the media coalition's presentation and notes from yesterday is that somewhere between 98 and 99 per cent of search warrants issued by JPs are just being rubber-stamped. They are approving them almost wholesale.
That would not be the case if they were applying something like the Lessard factor. It's great to say the gatekeepers should be doing their job and the existing law is there. The problem is that they are not following the existing law. We need a statute to force them to follow the law. This can only be done a statute and not by saying they should be doing this and they have the opportunity to do it. I agree with that. That is entirely correct, but the problem is that they are not doing it.
Mr. Bantey: I wholeheartedly agree with Mr. MacKinnon. In the Lessard case the Supreme Court said the factors were not constitutional requirements. If they are not constitutional requirements they have to be set out in the law. There has to be statutory protection if they are not constitutional requirements.
The beauty of this bill is that it unites both the Lessard factors and the Wigmore factors in one bill and makes them requirements. A justice of the peace or judge of a provincial court will see them in black and white in the Criminal Code, in the evidence act, and they will have no choice but to follow those requirements.
[Translation]
Senator Boisvenu: Thank you very much for this very enlightening information.
Mr. Trudell, your opinion is somewhat different from that of the other witnesses we heard up to now on this bill. I am intrigued by the two terms you used, "privileged class'' and "risk of abuse''. You did not demonstrate these possibilities at length. When you talk about a privileged class, are you talking about journalists who would benefit from specific protection under the Criminal Code? When referring to abuse, are you talking about police officers or journalists who could abuse that? Could you tell us more?
[English]
Mr. Trudell: The National Post and The Globe and Mail cases are the guidance of the court. They have basically said that it's not a class privilege but a specific situation that has to be measured. The bill is creating a class of privilege for journalists even though it's directed at sources.
The issue is if I'm a police officer I have to recognize that a journalist stands in an important position in society. If I don't recognize that, I'm not going to convey that information to the issuing officer and I may not follow the guidelines in the court. That's the way I see both of these. We're going against what the Supreme Court of Canada said and creating a new class of privilege.
Only lawyers really have that and the informants are another situation that's a class. That's something that has not been done and that's something that the Supreme Court of Canada rejected.
Senator Pratte and the sponsor of the bill suggest that there is a vacuum here. If you find there is a vacuum then some kind of legislative guidance is important. This bill is fraught with real concerns as far as we're concerned.
[Translation]
Senator Boisvenu: Is your opinion the same as to the risk of abuse? When you spoke about the risk of abuse, would that be by the journalists themselves? I am trying to understand your reasoning.
[English]
Mr. Trudell: No, it's impossible to try to understand my logic. I'm not talking about abuses by journalists because I have no evidence of journalistic abuse. What I'm talking about is a journalist saying, "I must protect my source.'' A defence counsel will say that the full answer and defence demand that there be disclosure of that, so there is another balance here. Senator Joyal suggests that this is combined Wigmore and there are concerns here.
[Translation]
Senator Carignan: I would like to signal my disagreement with Mr. Trudell on the issue of the creation of a new right. The Supreme Court recognized the fact that that right needs to be protected. What we are creating is a legal framework for the exercise and protection of that right. Basically we are even creating an obligation for journalists to protect their sources. We are giving tools to journalists to protect this commitment to confidentiality.
Mr. Leblanc, when you speak about the definition of "journalist'', the Supreme Court has specified that that could include bloggers, but we have to assess whether it is a relationship that must be "sedulously fostered''. In the National Post ruling in paragraph 57, it says this:
"The third criterion (that the source-journalist relationship is one that should be "sedulously fostered'' in the public good) introduces some flexibility in the court's evaluation of different sources and different types of "journalist''. The relationship between the source and a blogger might be weighted differently than in the case of a professional journalist like Mr. McIntosh''.
Do I understand that this is the Supreme Court statement you are referring to in your testimony:
Mr. Leblanc: That is exactly right, senator. I was at the Supreme Court representing the Media Coalition and Justice LeBel put a question to me, which was that if we go in that direction, we don't need to define what a journalist is. I answered that, indeed, that definition becomes less important if we do. At that stage of the test, all possibilities of abuse are raised. That is exactly what I was trying to express, Senator Carignan.
[English]
Mr. MacKinnon: To add one quick point, it's worth noting that Chief Justice McLachlin of the Supreme Court in a speech in 2012 acknowledged that:
The explosive growth of new media signals a shift in who reports on legal proceedings. Court decisions may no longer be the preserve of trained professional journalists. Anyone with a keyboard and access to a blog can now be a reporter. And who is to say they are not? Some bloggers will be professionals and academics providing thoughtful commentary and analysis. Others will fall short of basic journalistic standards.
The whole speech about the media and the courts is on the Supreme Court website under "speeches.'' Even the chief justice has said publicly in a speech this is a reality; bloggers can be journalists too. As Mr. Leblanc discussed, that's exactly what has been shown in some of the case law too.
[Translation]
Senator Carignan: Thank you.
Finally, I have a technical question about the appeal. The bill includes an immediate appeal when the judge orders the disclosure of a source, particularly as concerns evidence. This could be disastrous and prolong delays if it were done during a trial. I have not thought about this for a long time, but I had begun writing a thesis on client-professional confidentiality that I had to set aside because of my children — that said, I don't want them to feel guilty. So the appeal regarding client-professional confidentiality can be immediate, because this is a secret. Once the thing has been disclosed, that cannot be helped by the trial judge. Is that still the situation?
Mr. Leblanc: Yes. People say that once the toothpaste is out of the tube you can't put it back in, and that is why there is this immediate appeal possibility. There are also appeals for non-publication orders in criminal cases. I have been working in media law for 23 years and intervening on behalf of the media in criminal trials, for instance regarding publication bans or evidence. Theses interventions have never caused a trial to go off the rails, nor have they caused undue delays.
In the Dagenais Supreme Court case, Judge Lamer even stated that there could be difficulties inherent to publication ban requests and to the fact that the media are called upon to testify and be involved in criminal trials. However, since this is a charter-protected right and since it is just as important as other protected rights, it has to be included.
[English]
The Deputy Chair: We are going to conclude but I would like the members to stay for 45 seconds after the conclusion.
I thank witnesses for their very excellent presentations to this committee on a very important matter.
(The committee continued in camera.)