Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 24 - Evidence - March 8, 2017
OTTAWA, Wednesday, March 8, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), met this day at 4:19 p.m. to give clause-by-clause consideration to the bill.
Senator George Baker (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good afternoon and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we continue our clause-by-clause consideration of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources). This is put forward by Senator Carignan, who is with us today and a voting member of this committee.
We will pick up where we left off last week with the consideration of clause 2 of the bill, to which Senator Carignan had moved an amendment. Now, it is my understanding that Senator Carignan wishes to withdraw that amendment for the moment so that Senator Pratte may move an amendment instead.
Senator Carignan, is that correct? Do you have a motion to withdraw your amendment?
Senator Carignan: Yes.
The Deputy Chair: Go ahead. Do you move it?
Senator Carignan: I move it.
The Deputy Chair: Senators, are there any objections to the senator removing his amendment that we had under consideration at our last meeting? It is removed.
Now we'll go to Senator Pratte.
Senator Pratte: I move:
That Bill S-231 be amended in clause 2, page 1, by replacing lines 12 and 13 with the following:
"journalist means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or''.
The goal of this amendment is to add two concepts. The first one is that the journalist is someone whose main occupation is to contribute directly, et cetera. The main occupation would be journalism, and it's someone who does journalism for consideration, for remuneration.
This was the language suggested by the group of news organizations that came before the committee composed of the Toronto Star, La Presse, Post Media, et cetera — a coalition of main news organizations. Their purpose was to ensure that the protection given to journalists and their sources was given to professional or career journalists.
I remind members of the committee that when representatives of police organizations were in front of the committee, they expressed grave concerns over the definition of "journalist'' in the bill in front of us. I specifically asked them if this change would alleviate their concerns. I think that I'm faithful to what they said, that it would alleviate in large part their concern to have it limited to professional career journalists.
Now, the definition includes part-time journalists, freelancers — because the reality of journalism today is that many are freelancers and work part time — but it would still be their main occupation and they would be remunerated as journalists.
The Deputy Chair: Senator Pratte, you will probably have to answer some questions. We will call on a very experienced former journalist, Senator Munson.
Senator Munson: Thank you, chair. That's very kind of you.
Senator Pratte, does "occasionally'' include occasional opinion writers? Let's say it's a debate on prison reform, you name it, and you don't see that person for two or three years but this particular issue has sparked interest and that person is writing opinions on that. Does that cover this person?
Senator Pratte: Senator Munson, there was a suggestion by some witnesses that we specifically indicate that opinion journalism — editorialists, columnists — be specified in the definition, but we were told by most media lawyers, experts, that the courts have recognized that when we talk about journalism, it includes opinion journalists. That is included in the large definition.
Senator Joyal: I don't pretend to be a journalist.
[Translation]
Senator Pratte, in practical terms, doesn't your proposal amount to aligning the bill's definition with the Fédération professionnelle des journalistes du Québec's definition? I'll read a translated version of the FPJQ's definition.
The professional members are the people whose main, regular and paid occupation is journalism and who work for one or more media firms in Quebec.
What I read this definition, four components stand out. First, the people's main occupation must be journalism, so it must be their main activity and predominant activity in general. Then, the occupation must be regular, so there must be some repetition in a relatively short time frame. The occupation must be paid, so the people must receive some type of compensation, financial or otherwise. They must also work for one or more media firms, so they must be associated with a media firm and work for some type of media outlet.
Therefore, I can identify four components in the Fédération professionnelle des journalistes du Québec's definition. In your proposal, with your amendment and Senator Carignan's original proposal, would we find these same four components in the definition to help us understand what a journalist is for the purposes of the Canada Evidence Act?
Senator Pratte: We didn't choose the terms randomly. We drew inspiration from both the Fédération professionnelle des journalistes du Québec's words and the terms used by the major media outlets that appeared before us, which are those same terms. There's a nuance, and it's the use of the word "occasionally''. The nuance is significant, because in terms of the FPJQ's definition, you gave the definition for professional members. The FPJQ has another category for associate members, such as students and retirees.
We wanted to make sure that our definition also included, for example, a journalist who is retired but whose main occupation, from time to time, is to appear on television to comment on current events and who may very well have confidential sources when doing so. We wanted the definition to cover this person, since the person's main activity at that given time is journalism. We also wanted the definition to cover freelancers and people who work part-time. That's why we added the term "occasional''. However, for the rest, you're right. The words are exactly the same.
Senator Joyal: Are the concepts the same?
Senator Pratte: The concepts are the same.
Senator Joyal: This was a particular area of concern, Mr. Chair, and I'll explain why. There's no professional order of journalists in Quebec or elsewhere in Canada. We heard this from our witnesses. In that case, we can't refer to a definition provided by a provincial order. As a result, if we try to come up with a definition of a journalist and if we want to remain within the Canadian Parliament's jurisdiction, the definition must be based as much as possible on what is commonly heard in provincial activities, which are under the jurisdiction of the provincial courts.
In reading these definitions, it seems extremely important that we stick as closely as possible to the reality expressed in the provincial legislation if we want to remain within the Canadian jurisdiction, especially when we're dealing with the Criminal Code and the Canada Evidence Act.
[English]
Senator Lankin: I have two questions, but I saw Senator Carignan raise his hand. I don't know if it was in response to this.
The Deputy Chair: Senator Carignan, did you have a supplementary question for someone?
[Translation]
Senator Carignan: It is not a question, but more of a comment to add to the debate about the definition. I would like to say that the notion of "anyone who assists such a person'' is kept. I think that's important, because I have seen reports with people interpreting it and saying that interns would be excluded because they are not compensated. However, they are included in the definition of "anyone who assists'' when they work for a paid professional journalist.
I think this would make it possible to maintain the framework. In light of the concerns raised by our chiefs of police on the committee and the testimony of the RCMP members, I think the amendment also works in providing greater practical applicability when it comes to requesting a warrant. The definition is clearer on that front.
[English]
Senator Lankin: Thank you very much. That was a great segue. I am substituting today for Senator Boniface but am very interested in this bill.
My question was with respect to the second part of the definition, in that it would include anybody who works to support such a person defined as a journalist.
Given the concern about some constituencies wanting a very broad definition of who is a journalist, would that be protected under this legislation? And given the intent of this particular amendment, which is to give it some definition, would it behoove us to think about whether there needs to be a similar definition to a person who assists? Must it be their main profession or something they're paid for?
I understand the role of a researcher, for example, but for those people who would like to extend a very broad net, could a blogger be considered to be working with a journalist on a one-off and covered by this legislation? And is that a good outcome? I don't want to judge that; I just want to ask this question.
Senator Pratte: To be frank, I think it would be difficult to do that without going into an enumeration of possible collaborators. If you have a setting where you have a professional journalist, the number of collaborators is quite high. You have bosses, researchers, cameramen.
Senator Joyal: Cameraperson.
Senator Pratte: Thank you, Senator Joyal.
Senator Lankin: This is Canada.
Senator Pratte: Once you define a professional career journalist and you have that professional setting, I'm not certain it would be useful to define the collaborator. The important thing, as far as I understand it, is a professional setting.
Do not forget that the idea here is not to protect either the journalist or the collaborator but to protect the source.
Senator Lankin: When we were speaking earlier, you made that point to me and I'm glad you made it again. That's very important.
I have a second question. I do know that this definition of "journalist'' is for this section of the Canada Evidence Act, so it is narrowed by that. This comes from Senator Joyal's comment about provincial definitions. Is there a definition of "journalist'' that appears in other federal legislation?
I'm seeing people say "no.'' I'll just leave it at that. If the answer is no, that's fine.
Senator Joyal: Nobody would dare.
[Translation]
Senator Dupuis: Professional journalists from the Fédération professionnelle des journalistes are telling us that it is not important to try to have a strict and rigorous definition of the term "journalist'' because they manage well with what they have.
The representative from Radio-Canada who appeared before our committee raised a point that we did not have an opportunity to debate and that was not brought up by others: the person performing an act of journalism. Apparently, that's what defines journalism, the person who performs an act of journalism. I'm not sure whether that concept holds true. From our point of view in terms of the evidence and protection of journalistic sources, do we want to focus on the professional status of journalists or do we want to provide the protection of journalistic sources to someone who performs an act of journalism?
In other words, we have to make a choice. I think we have these two choices, as well as others. If we stick to the first category of members from the Fédération professionnelle des journalistes, are we not in danger of excluding from the second category people who are actually considered members of the federation? Is that a red herring? I'm not asking you to answer whether it is a red herring. I can admit it. I don't know.
Senator Pratte: That's always the dilemma, and it's the same dilemma in attempting to define what a journalist is. As Senator Carignan pointed out and as some witnesses who appeared before our committee pointed out, there is the issue of the applicability of the legislation. At some point, we have to ask what is applicable and what is not.
Senator Joyal: And to whom the legislation applies.
Senator Pratte: And to whom the legislation applies, exactly. Even the Supreme Court said so. When we end up asking to whom the protection applies and one group is undefinable, it is not easy to define who will be protected. As long as the protection applies to journalists, it applies to the sources.
First, we have the duty to try to make the legislation applicable. I would add that, in the protection of journalistic sources and what you call an act of journalism, ethics also play a role in relation to the source and the act of journalism itself.
When we try to define who is a journalist, in the case of paid professional journalists who work in news organizations, there is a set of related ethical obligations that are not generally felt by someone who decides overnight that they are performing an act of journalism because they are bloggers or because they decided to write a book on some topic. This set of ethical rules is important, particularly in establishing a relationship with the source. That's one of the reasons in support of the narrower definition of journalist, in the definition of a piece of legislation that protects the journalist's source.
Senator Dupuis: May I ask an additional question? You are amending the definition of journalist, but we are talking about someone who produces information for dissemination through the media. My concern is that it does not just cover regular or occasional journalists from the major media outlets. In your world, it is very clear that the concept of media covers community newspapers, not just the big newspapers like The Globe and Mail. The answer is yes? Thank you.
My understanding is that — and it's not because of a lack of respect, but rather to encourage our colleague, who is an expert in newspapers — when we talk about the media in general, it's about all newspaper companies, which is consistent with the definition used by the Fédération professionnelle des journalistes du Québec.
Senator Pratte: Yes.
Senator Dupuis: Thank you.
Senator Pratte: It's the newspaper business in general.
Senator Joyal: The newspaper business is bigger than the newspaper itself.
[English]
The Deputy Chair: Senator Joyal?
Senator Joyal: I was stating to Senator Pratte, as you know, a former journalist of La Presse, that in fact the press business is much bigger than La Presse, which happens to be the medium in which Senator Pratte was working before.
The Deputy Chair: If there are no further comments or questions concerning this amendment put forward by Senator Pratte, shall the amendment carry?
Hon. Senators: Agreed.
The Deputy Chair: Agreed.
Shall clause 2, as amended, carry?
[Translation]
Senator Carignan: I would like to move an amendment.
I move that Bill S-231 be amended in clause 2, on page 2, by adding after line 8, the following:
"(3.1) For the purposes of subsections (3) and (7), journalist includes an individual who was a journalist when information that identifies or is likely to identify the journalistic source was transmitted to that individual.''
The intent is mainly to target a journalist who retires, for example. The source does not lose protection just because the journalist is now retired.
[English]
The Deputy Chair: Is that your total explanation? That covers both subsections (3) and (7); is that correct?
[Translation]
Senator Carignan: Yes.
[English]
The Deputy Chair: Any comments or questions for Senator Carignan on his amendment?
[Translation]
Senator Joyal: Could you elaborate on that?
Senator Carignan: For example, journalists who are retired are no longer journalists, but they were journalists when a source disclosed information to them in secret. So the source is still protected. If a retired journalist is being investigated and he has information that would disclose the identity of a source, the source would still be protected, and the retired journalist should take the necessary steps to maintain confidentiality.
Senator Joyal: If we go back to the definition, you are removing the notion of "regular'' from it.
Senator Dupuis: "Regular'' or "occasional'', both.
Senator Carignan: No, I am adding a person who is retired, a journalist who, at one point, contributed directly to journalism, either regularly or not, and who had a piece of information or dealt with a source, but subsequently retired. He is no longer a journalist, but he retains his status if, at the time when he received the information, he fell under the original definition of journalist.
Senator Joyal: He is still considered to be a journalist for the purpose of protecting the source.
Senator Carignan: For the purpose of protecting the source, yes.
[English]
Senator White: So that I'm clear, the way I read what you're saying, Senator Carignan, it would not cover someone who stopped being a journalist but continued receiving information.
Senator Carignan: Yes.
Senator White: Okay. I'm good.
The Deputy Chair: Any further comments or questions?
[Translation]
Senator Dupuis: I just have a question for clarification purposes. As I understand it, being a journalist when the information was transmitted becomes the determining factor in calling a person a journalist.
Senator Carignan: Yes, that is correct. The source must be protected.
[English]
The Deputy Chair: Any further questions or comments on this amendment?
[Translation]
Senator Joyal: Was this request for clarification made by any of the witnesses we have heard?
Senator Carignan: Witnesses have mentioned it. I have also heard about it outside presentations. I am having trouble determining when the suggestion was made, but I think the witnesses mentioned it as well.
Senator Pratte: It was not the same amendment in its current form, but the media coalition, La Presse and the Toronto Star had put forward the idea of protecting retired journalists.
[English]
The Deputy Chair: Any further questions or comments?
Shall this amendment carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Senator Pratte: I have another amendment. I move:
That Bill S-231 be amended, in clause 2, on page 2,
(a) by replacing lines 19 and 20 with the following:
"sure of information or a document only they consider that'';
(b) by replacing line 22 with the following:
"in evidence by any reasonable means;'';
(c) by replacing line 30 with the following:
"source and the journalist; and''; and
(d) by adding after line 30 the following:
"(c) due consideration was given of all means of communication that would preserve the identity of the journalistic source.''.
In all of these changes, there is one substantive change. The first one, (a), is a linguistic change. If you read proposed subsection 39.1(7), it presently states:
The court, person or body may authorize the disclosure of information or a document only if the court considers . . . .
So "The court'' is replaced by "They.'' It is simply a linguistic change.
Senator Joyal: It stands for "court, person or body.''
Senator Pratte: Exactly.
The other changes, (b) and (c), are simply to accommodate the fact that we introduced a (c). So the "and'' at the end of (a) is displaced to (b) to accommodate the fact that we introduced a new subparagraph (c).
So we come to proposed subparagraph (c), which is simply to give to the court person or body the possibility — how the bill is written presently, if the judge or the court decides to authorize the disclosure, he or she can only authorize full disclosure of the document or the information, and that's it.
This gives the judge the authority of maybe authorizing partial disclosure of the document in a way to protect the source, without the source being identified, which is sort of the equivalent of when you authorize issuance of a warrant but with conditions. This is the equivalent of that, but in the Evidence Act.
The Deputy Chair: Any comments?
[Translation]
Senator Dupuis: I'm sorry, but I am lost. I'm looking at the English version.
Senator Pratte: The amendment is not the same in English and in French.
Senator Dupuis: That is my understanding. I would like us to read the French version because it looks very simple.
Senator Pratte: It is for purely linguistic considerations.
Senator Dupuis: I understand that. I'm just trying to find my place in the text. Are we talking about subsection 39.1(7)?
Senator Pratte: Yes, exactly. In French, only paragraph (c) is added for purely linguistic reasons. I will try to explain it in French.
[English]
Maybe the translator can do a better job translating my thoughts in English than I can, or maybe my thoughts are desperately confusing and cannot be translated into any language at all.
[Translation]
The idea is simply that, right now, in the legislation as it is written, when the court decides to impose the publication of a document or information, it can simply authorize or require publication of the document as it is. There is no leeway.
Senator Dupuis: Yes.
Senator Pratte: Here it says that the judge may authorize the partial disclosure of the document or information in a way to protect the journalistic source. This gives judges some leeway so that, ideally, they can preserve the identity of the journalistic source as much as possible. It is therefore a question of giving judges the discretion to have some flexibility.
[English]
The Deputy Chair: What is commonly referred to as vetting or editing.
[Translation]
Senator Carignan: I am comfortable with the amendment. For me, that was implicit in the bill, but I think Senator Pratte's proposed amendment clarifies and removes any doubt as to whether or not the court can authorize communication when the necessary means are considered to protect the identity of the source. I am comfortable with that.
[English]
The Deputy Chair: Senator Sinclair, did you want to intervene?
Senator Sinclair: I think it's clear. I understand it. It took me a while to find it, but once I found it, I understood the purpose of it. I think it achieves that purpose that Senator Pratte talks about, which is to make the court go through a step-by-step procedure before ordering disclosure of all the identifying information.
The Deputy Chair: It's like redacting.
Senator Sinclair: It's not only that, but it may end up giving all the information at the end of the day once it has completed all the steps, but it has to look for alternative means to final and full disclosure.
The Deputy Chair: Senator Joyal, is it clear to you?
Senator Joyal: It's clear to me, but I think the addition of (c) puts a burden on the court, quite clearly, because it means that the court will have to check that "due consideration was given of all means of communication that would preserve the identity of the journalistic source.'' You cannot expect that it's the police that will help the court do that. It's the court itself that will have to go through that process.
[Translation]
Senator Carignan: Before I answer, I would like to point out that just beforehand, paragraph (6) states:
(6) Before determining the question, the court, person or body must give the parties and interested persons a reasonable opportunity to present observations.
Of course that will be part of the observations that people will have to make on both sides.
[English]
Senator Joyal: It makes it more important to for the court to have the capacity to resort to a special advocate to do that.
[Translation]
Senator Carignan: That is the other amendment.
[English]
Senator Joyal: That's it. It adds to the onus of the court. The court is not there to arbitrate. The court is there to have due consideration to all means of communication that would preserve the identity of the journalistic source. You can't expect that the police are going to do that.
Senator Carignan: Agreed.
Senator Joyal: It's not the role of the police to do that. It's the role of the court to do that.
Senator Carignan: We will propose another amendment for that.
Senator Joyal: But you understand my point.
Senator Carignan: Yes. It's a package deal.
Senator Joyal: As Senator Sinclair has said, it's a step-by-step approach, a checklist of things that the court has to verify before deciding whether or not to grant the authorization.
In doing this, we add to the responsibility of the court to measure "all means of communication that would preserve the identity of the journalistic source.'' As I say, from the beginning, if you put the judge in a position whereby he will become, to a point, part of the decision because he will have to reassess those means of communication, then it requests a balance of the views of what the judge can consider on his own versus what the police put forward.
[Translation]
Senator Carignan: Senator Joyal, I am still comfortable, given that the lawyers for the parties will be present, and given that another amendment, which I hope will be carried, will be introduced, and through which the court may ask an amicus curiae to express the other point of view.
It is important to remember that it is not uncommon for the court to have certain obligations in some situations. Take solicitor-client privilege, for example. When this happens, if the ex officio judge identifies a solicitor-client issue, he or she may raise it.
Senator Joyal: But the syndic of the Barreau is there to protect the best interests of the Barreau.
Senator Carignan: Not necessarily. In some situations, solicitor-client privilege is an issue and the syndic is not there yet. This can simply happen at a trial, in which case they can call the syndic. Sometimes, this can happen during a trial, and the syndic of the Barreau is not there.
But in any event, I think the lawyers for each of the parties are there at that time. They have had an opportunity to present their views and, ultimately, the judge, if the following amendment is carried, may appoint a friend of the court.
[English]
Senator Sinclair: This particular provision is not unusual for judges to consider. It essentially requires judges in their reasons in making a decision to indicate on the record that they have done these things. If there is no evidence before them, the parties don't bring that evidence, then the court will say, "I've given due consideration to the evidence before me on this point, and the evidence is nothing. No evidence has been provided to me.'' As long as the court avers to that fact.
The only potentially problematic situation is if there is only one party who shows up in front of the court.
The Deputy Chair: Ex parte.
Senator Sinclair: Then the court may have to call upon an amicus — and I hear there might be an amendment — to ensure that that argument or that evidence is called and put in front of the judge.
This kind of provision is not unusual. I'm talking specifically about proposed subparagraph (c) about giving due consideration to "all means of communication that would preserve the identity of the journalistic source.'' It's in giving the reasons that the court would actually have to show it did that. Of course, it's up to the parties to take advantage of the procedure or not.
[Translation]
Senator Dupuis: I was trying to understand subsection (7). It seems to me that there is a difference in the nature of subparagraphs (a) and (b) and the sought addition in subparagraph (c). Subsection (7) states:
(7) The court. . . may authorize. . . only if the court considers that
(a) the information. . . cannot be produced in evidence by any other reasonable means; and
(b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality. . .
Then paragraph (c) all of a sudden states:
(c) due consideration was given of all means of communication that would preserve the identity of the journalistic source.
I don't know whether it is a question of wording in the addition that you want to make, or whether it's really different in nature from what you are trying to introduce as an element that the court must consider. Do you see the nature of my problem with paragraph (c)?
[English]
The Deputy Chair: Senator Pratte, do you have any comment?
Senator Pratte: Yes, I'm looking at this.
[Translation]
These are the means of communication in the document. Is that what you are referring to?
Senator Dupuis: There are two things that concern me. First, "due consideration'' is translated by "à envisager'', which is problematic. Second, when you say "all means of communication'', what does that mean? All means of communication —
Senator Pratte: It is because we are talking about when the court decides that the document will be made public. The idea is to figure out how the court will make the information public while protecting the identity of the source. These are the means by which information will be made public while protecting the identity of the source.
Senator Dupuis: If that is what you are saying, that is not what it says in French, and I do not know whether that is what it says in English. Just now, you answered something along these lines: "We want the court to have the discretion to partially disclose information, but to the extent that the identity of the source is preserved as much as possible.'' Is my understanding correct? It is a matter of giving the court discretion, but it must ensure that the identity of the source is preserved as much as possible.
Senator Pratte: It is also how it circulates the document to protect the identity of the source, if possible.
Senator Dupuis: Okay.
[English]
Senator Lankin: I have two questions.
What I heard Senator Pratte explain is quite different than what I heard Senator Sinclair explain. Senator Sinclair commented on consideration of evidence put forward before the court, and Senator Pratte is talking about the duty on the court for due consideration of anything that they're going to authorize to be released, to do its best and look at all means to preserve the identity. Those are two very different things, so I'd some clarity.
Second, I don't know the latitude of legislative language and what the most appropriate words are to use. In the English language, common usage would be "due consideration was given 'to' all means of communication.'' The amendment refers to due consideration "of'' things. When I heard Senator Sinclair read the provision and comment on it being common, he used the words "was given to all means,'' and I wondered what's appropriate.
Senator Joyal: I'm having the exact same issue.
Senator Lankin: Good.
The Deputy Chair: Perhaps we could go to Senator Sinclair to ask him why he used "to'' instead of "of.'' It's very common. It depends on the judge who was writing it. Anyway, we'll go to the master himself, Senator Sinclair.
Senator Sinclair: I'm not sure if it's a semantics issue, but I think there is a way we could clean this up. We should probably consider cleaning it up if we're going to end up voting for something that ultimately will be interpreted by a court.
I think the word "of'' should probably be the word "to,'' so it would read "was given to all means of communcation.''
Then the word "communication'' probably would best be replaced by the word "disclosure.'' It would read, "due consideration was given to all means of disclosure that would preserve the identity of the journalistic source.''
Does that make sense now? That's exactly what you said, senator.
The Deputy Chair: Senator Sinclair is just being nice to everybody.
Is everyone in agreement with this? Does this work in French as well? Can we just check with the law clerk's office? Could we just leave this, because this is perhaps the solution? If we could leave this and go on, we'll come back to it.
Jessica Richardson, Clerk of the Committee: We can't go to the next clause until we're finished with this one.
The Deputy Chair: We can't go to the next clause until we're finished with this one? We can stand clause 2 and go back to it after clause 3 with unanimous consent of the committee. We're the master of our own proceedings.
Ms. Richardson: I'm sure they'll give a quick response if we just want to take a brief break.
The Deputy Chair: Is there any further comment?
If we can start discussions on clause 3 without actually approving the amendment in clause 2, I understand there are proposed amendments to clause 3. Could we have an advance explanation of what those amendments are and who's moving them?
I'll call on Senator Carignan. Do you have an amendment, sir?
[Translation]
Senator Carignan: Yes.
I propose that the bill be amended in clause 3, on page 4, by replacing lines 9 and 10 with the following:
"Act of Parliament, a warrant under section 487.01, 487.1, 492.1 or 492.2, a search warrant under this Act, notably under section 487, or any other.''
Senator Baker, I would be tempted to ask you to explain it yourself.
[English]
Senator Joyal: It's your point.
The Deputy Chair: He has now included the general warrant provisions. Instead of a search warrant, he's called it a warrant, or he could have said a judicial authorization. It means the same thing.
A warrant would cover, then, a tracking warrant as well as a search warrant under 487, as well as a general warrant, which is a technique. It's not a search warrant; it's not a tracking warrant. It's a technique that's used every single hour of the day in Canada, as Senator White would attest to, to do all kinds of things that are not provided for in any other section of the Criminal Code. Correct, Senator White?
Senator White: Correct, sir.
The Deputy Chair: That's the reason, and I commend you, senator, for changing "search warrant'' to "warrant.'' There is a difference between a search warrant and a warrant. I commend you for including the general warrant provisions.
Senator Joyal: But he has made another change.
The Deputy Chair: He has made another change, and Senator Joyal, what's that?
Senator Joyal: Section 487 has disappeared from the clause.
The Deputy Chair: Yes, but then he's added, "notably under section 487.'' I have no idea why he did that, but anyway, he's done it.
Senator Carignan, did you have anything further?
[Translation]
Senator Carignan: Do you mean after 487?
Senator Joyal: Yes. You moved section 487. You stated "notably under section 487'' whereas previously, section 487 was at the start of the list of sections.
[English]
The Deputy Chair: It's not a change, Senator Carignan. Section 487 is there. Senator Joyal pointed out that it's there now in a different place than it was originally, that's all.
[Translation]
Senator Carignan: It was written that way, but it does not change the substance.
Senator Joyal: Could you tell me why?
Senator Carignan: I followed the advice of my lawyer.
Senator Dupuis: If I have understood correctly, you added the warrant under section 487.01, which was not in the original section.
Senator Carignan: Yes, exactly.
Senator Dupuis: Right. Thank you.
[English]
The Deputy Chair: It's the most used warrant these days, I think.
Senator Sinclair: I think it's always risky when a lawyer says, "I always rely upon the advice of my lawyer.''
As I understand it, you're essentially moving sections around. From my reading of this, it looks like it makes sense and is consistent. Nothing new has been added in terms of sections. Section 487.01 has been added, but all of the others have been included, I gather, in the phrase "or any other.''
Senator Carignan: Exactly.
The Deputy Chair: And he has erased the words "search warrant'' and replaced them with just "warrant.''
I have one further observation, Senator Carignan. That part of the bill continues on to say that sections 186 and 188 are to be issued only by a superior court judge. That is presently the law anyway, which you are aware of.
I have a little concern. I don't know if you've turned your mind to it, but if this is a code unto itself in issuing warrants in relation to journalists, then are we saying that a section 186 warrant could be issued if it is issued by a judge of a superior court and that is all?
My concern is that section 185 of the Criminal Code spells out who can issue a warrant under section 186, and it says specifically a judge of a superior court. However, it also says that it requires the authorization/approval of the minister or a designate of the minister or an agent of the minister if it's concerning a federal matter, and of the province, of the provincial minister, designate or agent of that minister, which would apply to all warrants issued for persons who are not journalists.
So if this is in fact a code unto itself for journalists and all you require is a warrant from a superior court judge, it then falls short of what is required under normal circumstances under section 185 of the Criminal Code, which requires not only a judge of the superior court but also approval of federal and provincial authorities, namely, ministers, their designates or their agents. I don't know if you've turned your mind to that particular problem.
[Translation]
Senator Carignan: It is a floor and not a ceiling in the sense that if there are already other authorizations that must be added to those of the Superior Court judge, they are kept. If there are preconditions to going to the Superior Court judge, such as the minister's authorization, they remain.
[English]
The Deputy Chair: This was one of the major points made by the lawyer for the Canadian Association of Chiefs of Police when they appeared before us, that if this is a code unto itself, problems would arise. She didn't particularly alert to this problem, but those persons who pay attention to case law would know that section 185 of the Criminal Code is far more broad than just a warrant by a superior court judge.
[Translation]
Senator Carignan: This is a minimum. Other practical elements should be considered. I suggest that we adopt the amendment. We will have at least two weeks to see if there are other things that need to be considered. A specification proposal can always be presented at third reading if necessary.
[English]
The Deputy Chair: Good.
Did anybody else wish to comment?
Senator Sinclair: I don't share that concern, Senator Baker. I think that by invoking and referring to that section, it incorporates into this provision all the requirements of that section, including a requirement that the minister or the Crown representative has to give their consent. So I don't think this changes that.
My concern related to another matter that's not in front of us. I just flag it because it's something we may need to consider later.
You may remember that the lawyer representing the Royal Newfoundland Constabulary, with the Canadian Association of Chiefs of Police, flagged the fact that this particular provision applies to all journalists, regardless of charge. She suggested that this should be limited not to exclude all of those cases where the journalist is charged himself or herself with a separate offence, because this would appear to require that if a journalist is charged with an offence, and it's a different offence altogether — I think impaired driving was the example given — this provision would kick in, and that's not the intent of it.
So we may need to consider a further amendment. I'm not suggesting we not support Senator Carignan's amendment — I support it — but I think we also need to consider whether a further amendment should be made to address that legitimate concern.
The Deputy Chair: Since you mentioned it, I have the two sentences here. Here's what the police association's lawyer said:
The proposed warrant amendments to section 488 are problematic. The bill's amendments to the warrant provisions have created a completely separate process for journalists, even if the criminal investigation has nothing to do with their profession. For instance, if a journalist is the target of a criminal investigation, such as impaired driving causing bodily harm, and the police require a search warrant to seize an exhibit, there is now a separate process created for the individual who happens to be the journalist. Although the intent of this section could not have been to create a special protection which does not exist for any other citizen of Canada, this section does precisely that.
And this is what Senator White brought up after she made the following statement. Let me continue:
. . . the Criminal Code permits search and seizure without warrant where grounds exist for a warrant but by reason of exigent circumstances it would be impracticable to obtain a warrant. The proposed wording "Despite any other provision of this Act or any other Act of Parliament . . .'' eliminates this important search and seizure provision.
That's exactly what she said.
[Translation]
Senator Carignan: It has been said that the common law jurisprudence and the Supreme Court have already covered the matter, but that it was put in the statutes.
It is already covered at the moment, and it does not give special status to journalists. Instead, it forces police forces to act more cautiously in the presence of a journalist when it comes to protecting a source. The same is true of solicitor- client privilege.
I am a lawyer, and I have no privilege if an arrest warrant is issued against me for impaired driving. However, if I have a briefcase containing my clients' files, special measures must be taken to protect the solicitor-client privilege related to the contents of my briefcase.
The situation here is no different, and I think it is something that is fairly well-defined.
[English]
Senator Sinclair: I think it's a simple amendment, actually. With respect, I think that the police association raised an important point. It's a simple amendment by simply removing the phrase "to a journalist'' in line 13.
Senator Sinclair: It would refer to all of those warrants, and then it would say "relating to an object, document or data relating to or in the possession of a journalist.'' So it's intended to be warrants for documents.
The Deputy Chair: Relating to or in the possession of?
Senator Sinclair: Yes. So instead of "relating to a journalist or an object, document or data,'' it would now read "relating to an object, document or data relating to or in the possession of a journalist.''
The Deputy Chair: In the possession of.
Senator Carignan, do you follow what Senator Sinclair has just said?
[Translation]
Senator Carignan: Yes, at first glance, I have no problem. Senator Joyal?
[English]
Senator Joyal: I'm trying to read that in relation to all of the other warrants that are enumerated in the previous lines.
The Deputy Chair: It's one continuous sentence, Senator Joyal. There are not two sentences.
Senator Sinclair: There may be another need to remove the phrase "relating to or'' in the next line because it becomes cumbersome.
The Deputy Chair: This is very important, Senator Sinclair.
Senator Sinclair: I realize we're doing this on the fly, so I don't have a draft of an amendment here. I do remember the issue as it was coming up in this discussion.
Again, I do support Senator Carignan's amendment, but I suggest we consider having an amendment drafted to this clause which would make it read, "relating to an object, document or data in the possession of a journalist.''
The Deputy Chair: Absolutely.
Senator Sinclair: So it would be limited to warrants relating to the document, data or object as opposed to the journalist. Do you want me to read that again?
The Deputy Chair: Yes.
[Translation]
Senator Carignan: Can we do it now?
[English]
The Deputy Chair: Go ahead, Senator Pratte.
Senator Pratte: I'm very uncomfortable doing it like this. I have a feeling that we may be missing something by doing it rapidly. Frankly, I don't think it's necessary, with all due respect to all the lawyers and especially my colleague Senator Sinclair, for whom I have the greatest of respect.
Suppose a journalist is accused of causing bodily harm and a judge has to decide whether he will issue a warrant. He has the act in front of him, and he has to consider whether there is any other way that the information can reasonably be obtained and concludes no. Then he has to consider whether the public interest in the investigation and prosecution of a criminal offence outweighs the journalist's right to privacy in gathering and disseminating information.
It would be obvious to the judge that this has nothing to do with the journalist's right to privacy in gathering or disseminating information. This has nothing to do with the journalist's work. This is the journalist who is charged with an offence, so the judge will issue the warrant.
The Deputy Chair: Senator Pratte, supposing there's no judge. Supposing there are exigent circumstances by the police.
Senator Pratte: What do you mean?
The Deputy Chair: The police have the authority, as Senator Dagenais will tell you, that if they don't have the time, if there's an emergency, an urgent exigent circumstance, to go before a judge or even apply by tele-warrant, they have the authority, if they have reasonable grounds to believe, to enter that establishment or carry out that action of arrest, section 495 of the Criminal Code.
So what the lawyer for the police association is saying is this will erase the exigent circumstance ability of the police to carry out their duties in such circumstances.
Senator Pratte: But the act applies to them also, doesn't it?
The Deputy Chair: Yes. In other words, an unintentional consequence would be that you could not do this because this is a journalist that you're —
Senator Pratte: But this is not a journalist doing his job as a journalist. This is a journalist who is a private citizen.
Senator White: More importantly, it's not a journalist who is trying to protect his source, so who cares really? If it is impaired driving causing bodily harm, I don't think this pertains at all. I think it only pertains if that journalist is trying to protect his source. So I'm not concerned, actually, and I heard the witness from the Royal Newfoundland Constabulary.
The Deputy Chair: It was from the Canadian Police Association, Senator White; it was not just the Royal Newfoundland Constabulary.
Senator White: I understand their concern, but their concern should only be in relation to protecting the source. That should be their only concern. It's not in relation to impaired driving causing bodily harm or homicide. It's whether or not the police are trying to find out information about the journalistic source. If I'm wrong, then I have a problem with the whole bill. For me, that's what the bill is meant to do in the first place. That's the intention of this piece of legislation.
If that's the intention, I'm not as concerned. If it was up to CPA and/or CACP, I would argue the bill is problematic for them anyway.
[Translation]
Senator Dupuis: I had a question that is not necessarily related to that point. Have you considered the brief that the Barreau du Québec sent to members of the committee? I think the brief was sent to all members of the committee.
[English]
The Deputy Chair: Yes, it was.
[Translation]
Senator Dupuis: There are questions about the need to appeal to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 of the Criminal Code. In Quebec, justices of the peace and magistrates will no longer be able to do what they were doing, which is to issue warrants and authorizations under section 488.01. We are wondering why this is being removed from a system that seems to work well, they say, to protect only journalists and put issuing these warrants into the hands of a judge of the Superior Court or the Court of Quebec.
Senator Carignan: We are moving away from the amendments. We are getting into the body of the bill, which is to hand this over to a judge of the Superior Court. The vast majority of witnesses said that they fully agreed with this amendment in order to put this in the hands of a Superior Court judge rather than a justice of the peace. We were given a brief explanation of certain issues related to justices of the peace, who have some independence. We want to send the message that source protection is an important aspect of freedom of the press, and that there is an important protection that must be put in place, and that a judge of the Superior Court is better placed to conduct this investigation than a justice of the peace will do in an office.
I have a great deal of respect for justices of the peace. I myself have asked for signatures from justices of the peace. I have often been asked to write the document myself so that they can sign it. We're talking about another level. In practice, this is another level.
Senator Dupuis: I have a supplementary question. I would like an explanation of the reasoning being followed here, which is leading us to make this choice. Because what we are talking about is amending a federal law to protect people who are highly valued socially — journalists. I am not talking about you personally, Senator Carignan. I am talking about the social value of the journalistic function, which is important, and which I understand very well.
They would be given a special process because they are journalists, whereas in other types of federal legislation, we legislate in such a way that provincial processes or laws of general application can apply and continue to operate, which presupposes systems that amount to the same thing. In other words, we incorporate elements of provincial legislation into federal legislation.
What strikes me — and I want this in the transcript of the meeting — is that the Indian Act is federal legislation based on that kind of reasoning, on the social value attributed to the Indian band councils compared to the social value given to journalists. Has that consideration been taken into account?
In other words, my question about the position of the Barreau du Québec is that there is an issue raised.
[English]
Have you given due consideration to the Quebec bar association's argument?
[Translation]
Senator Carignan: We are moving away from the amendment and are looking at another aspect of the bill. I want to point out that this bill does not give journalists rights. No rights are given to any journalists here. On the contrary, it is an obligation to protect their sources. They are also given some means to do so. But for me, this bill creates an obligation for journalists rather than a right. It is the source I am protecting.
[English]
The Deputy Chair: Could we continue back on our original discussion?
By the way, Senator White, the legal counsel who appeared before us said as follows:
. . . I'm here on behalf of the Law Amendments Committee of the Canadian Association of Chiefs of Police.
It wasn't a province. It was someone representing an organization that you belong to.
Senator White: I understand that.
Senator Sinclair: I just want to comment upon Senator Pratte's reply to what I said earlier.
This bill really deals with two processes. One is the warrant process, which is the process of authorizing police to go out and get something, and that's what this particular amendment deals with. It will require that those warrants only be issued by a judge of a superior court.
The process that you talked about, Senator Pratte, is in the earlier subsection, which is when a court is called upon whether or not to disclose what has been brought to the court because of the warrant, then the court must go through a certain step. So that's how I read that provision. When the court is called upon whether or not to disclose that information, it must go through that process of analyzing, among other things, whether the privacy interests of the journalist are affected.
Am I missing something here?
The Deputy Chair: No. The legal counsel who presented this to us said it only applies to section 488 of the Criminal Code. Clause 3 of this bill deals with section 488 of the Criminal Code, so you're absolutely right in that assessment, Senator Sinclair. Did you wish to add anything to that?
Senator Sinclair: I would point out that in deciding whether to disclose, assuming that the warrant has been issued against a journalist for an offence like drunk driving or murder and the warrant was issued by the appropriate judge, when the court comes to analyze whether to disclosure that or to allow that evidence to be brought into court, the court will not be particularly swayed by the privacy interests of an individual accused. So it's going to allow it in actually more easily, or just as easily, I'd imagine, as long as the warrant was properly issued.
The problem becomes that if the warrant was issued by somebody other than a judge of a superior court and it was a murder case, then the judge would have to consider whether to allow the evidence in because the warrant was improperly issued. I think that's the argument from the counsel for the police association. That's why they flagged it for us.
All I was suggesting was that we need to consider whether that's a legitimate concern. I think it is, and I think we should prevent that from becoming an issue in any case involving a journalist, other than those cases where he's trying to protect the sources from being obtained through a warrant or disclosed in a court.
Senator Joyal: Considering the question related to this section, which is certainly the objective of the bill, as was stated by Senator Carignan, would it not be better to have this issue put to Mr. Saint-Denis and get his feedback on the text as we have amended it by hand by deleting words in two lines, line 13 and line 14? Would it not be better to get the input of Mr. Saint-Denis on the basis of what the law division of the police association has been putting forward to reassure all of us that what we're doing will not have the unintended consequence of raising a problem in its interpretation in relation to the situation that Senator Sinclair has described? I raise it as a possibility to reassure all of us that this is the right definition we want to achieve.
[Translation]
Senator Dagenais: I wanted to make a comment, but I think it would be better to get back to the amendment, and my comment was not necessarily related to it. So I will restrain myself.
Senator Carignan: I think we should proceed with the amendment and, if there is anything to add, we can always make further amendments at third reading. We will, therefore, have time to clarify this issue at third reading, and we can come up with a more specific amendment that we will have more time to think about particularly. So I suggest that we proceed with the amendment, which is fairly technical.
[English]
Senator Pratte: I have no qualms about looking at the idea of taking out the phrase "to a journalist,'' but I would like more time to think and consult about it because I'm afraid that we may remove something important. I would agree with Senator Carignan that we adopt the amendment and take time to see whether we can maybe make changes to make it better at third reading.
Senator Lankin: As I understand it, there are two issues. One is what Senator Pratte just spoke to and the technical amendment. The other is the broader issue of the referral to the superior court judge and what we are capturing here. Are we capturing all situations or only situations where the journalist is attempting to protect a source?
When this comes to third reading, because I'm not here, that is something I will want to know about and be assured of in the debate.
If we're saying, "Pass this,'' but Senator Pratte has some language he wants to be assured of before that, I think there's a second issue, which is the one that you're referring to in terms of the testimony from the chiefs of police legal counsel. I just want to be sure that we're going to get some assurances or advice back on that to this committee. Whether it is moved at third reading or not is not of concern to me, but I know others will want to hear the reason for that.
Senator Sinclair: My suggestion is we deal with Senator Carignan's proposed amendment, which I think is fine, and that we defer any further discussion on my suggestion until we have an opportunity to get input from the legal drafters to see if this is an issue for which we should be proposing an amendment, and we can deal with that question of amendment at third reading. I have no problem with that, because we'll have an opportunity to have a discussion amongst ourselves by that point in time. It might be an amendment that we can do by consensus, but if we can't, then it's a question for debate and persuasion.
At this point in time, I agree that because we're doing it on the fly, it becomes problematic. I totally understand Senator Pratte's concern about wanting to be sure that we're not doing something inadvertently, that wasn't intended. That's why I said I didn't have the draft of an amendment in front of us to look at. It just occurred to me as we were discussing this provision.
I agree we should defer that argument, and we should just deal with Senator Carignan's amendment.
Senator White: I think we should task the clerk with taking these two issues and having the drafters go through them again, because I do agree. I'd like to move this forward, because we have raised legitimate concerns about what has been occurring. But I don't want us to bog this down on something that may be, because we do have one more chance, at least, in correcting it if we have to.
My perspective would be to move it forward, pass it here and then have an opportunity in two weeks to bring this back in the Senate.
Senator Joyal: I come back to my proposal and I will tell you why. If we have Mr. Saint-Denis testify on behalf of the Department of Justice and answer our questions in relation to that section of the bill, it would be on record as part of the proceedings of this committee.
Mr. Chair, you are one of the prophets of the position that the court will read the debates of this committee and then make an interpretation. If we have Mr. Saint-Denis here, in a chair, to testify, it is part of our proceedings. Otherwise what we will do is speak to ourselves individually. At the third reading stage of debate in the Senate, we won't, of course, have the benefit of interventions, other than those of individual senators. Of course, that is always welcome, but it's not the same as having the Department of Justice on the record, interpreting that section to be sure about the preoccupation that the chiefs of police legal division has put forward and reassuring us that the additional amendments that Senator Sinclair, for instance, has suggested, are totally in sync with what we intend to achieve with this bill.
As you know, the government will look at this bill with a magnifying glass, and we have to make sure we're able to stand by the bill and not leave it open to all types of criticism from the government side in the other place that would make it difficult for it to be adopted.
Senator Munson: Why couldn't we get Mr. Saint-Denis to send us a written submission on the concerns that have been expressed here, and we'd have that to use at third reading debate? What he's saying may be definitive or it may not be, but at least we would have his recommendation as opposed to holding this up.
The Deputy Chair: Are there any further comments?
[Translation]
Senator Dupuis: It seems to me that as soon as at least two types of problems are raised, some by people at the table and some by people outside, it should lead us to look at the issue, here in committee, and get opinions, not just a written statement, because that does not solve the problem. We have questions.
The idea of having witnesses, specialists or experts coming to meet with us is also an opportunity to discuss the issues that have been raised. In that sense, I understood that it was the responsibility of a committee to clear up the potential issues of a bill, find answers and then report back to the Senate. In no way is it to delay anything, but it isn't as if we hadn't thought of that. We have been discussing it for a long time around the table. Specific issues were identified. Isn't it up to us? Maybe I don't understand the role of committees.
Senator Carignan: Every day we deal with issues raised in committees or by witnesses. We have to make a decision at some point. I move that we proceed with this amendment. I have another one. If we want to hear from Mr. Saint- Denis, if he is available tomorrow, we can hear him tomorrow, but it would be better if we went ahead. The bill has already been deferred.
Two meetings were scheduled, and now there are three. Clause-by-clause consideration was to take place before, but now it is today. The next two weeks will be break weeks. I hope the report will be tabled in the Senate this week so we can proceed with third reading of the bill after the break. We mustn't forget that if this bill isn't passed before Easter, there is a risk of prorogation, and it will never see the light of day. If we want this bill and want to protect journalistic sources, there must be some discipline about the timelines related to its adoption.
What I propose is that we adopt the amendments in due form. If Mr. Saint Denis is available tomorrow, we will hear from him; otherwise, we adopt the report, table it in the Senate tomorrow and hold the debate at third reading on specific items that could be brought forward. Given the number of people here, we will have time over the next two weeks to think about our choice of words.
[English]
The Deputy Chair: Is there any further comment on what Senator Carignan has just said?
[Translation]
Senator Boisvenu: In response to Senator Dupuis, I would say that this is our job, and that we aren't transferring this responsibility to a technical committee. People from the department are here, and we will ask them about things that may seem obscure to us. But the committee's role is to make decisions in that sense. Then it is up to jurists to apply the legislation enacted by Parliament.
Senator Dupuis: We fully agree. We may not agree on the type of decision to make, but we fully agree that we are there to decide.
[English]
The Deputy Chair: Is there any further comment? If not, we'll go back to clause 2.
Senator Sinclair: Question!
The Deputy Chair: We're waiting for an answer.
Clerk, could you tell us what the answer is from the law clerk?
Ms. Richardson: The law clerk prefers the word "communication,'' but if the committee agrees to change it to "disclosure'' in English, then in French it should be changed to "divulgation.''
The Deputy Chair: Senator Joyal, what do you think of that?
Senator Joyal: I would certainly defer to the comment.
[Translation]
I think the word "disclosure'' in French will certainly help judges to understand that "communication''. . .
[English]
. . . is "disclosure.'' I think that I would support the way that the law clerk has been suggesting it to us.
The Deputy Chair: Do we have agreement that the word "of'' will change to "to'' and the word "communication'' will change to "disclosure''? Did you want to do that? And then we have the French as we have just heard it outlined from the law clerk's office.
All those in favour?
Hon. Senators: Agreed.
The Chair: Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
What are the amendments for clause 3, Senator Carignan?
[Translation]
Senator Carignan: It's an amendment that introduces the concept of amicus curiae.
[English]
Ms. Richardson: You've done it; you have to now officially put the motion.
The Chair: We have not adopted it yet, Senator Carignan. Could you please start with your first amendment on clause 3?
[Translation]
Senator Carignan: The one I moved. . . so I move it.
[English]
The Deputy Chair: You're moving what you read:
That Bill S-231 be amended in clause 3, on page 4, by replacing lines 9 and 10 with the following:
"Act of Parliament, a warrant under section —
Dispense?
Some Hon. Senators: Agreed.
The Deputy Chair: Is everyone agreed?
Senator Sinclair: May I raise a point of order?
The Deputy Chair: Absolutely.
Senator Sinclair: We voted just a moment ago on the amendment that I proposed, which the law clerk approved. Did we vote on the amendment proposed by Senator Pratte, to approve that?
Ms. Richardson: The amendment, as amended.
Senator Sinclair: Yes, but the amendment was only my amendment, not his amendment.
The Deputy Chair: Yes, that's in clause 2, isn't it?
Senator Pratte: Yes.
The Deputy Chair: Okay, so we didn't deal —
Senator Sinclair: I amended his amendment. So we've approved my amendment to his amendment. Have we approved his amendment?
The Deputy Chair: Shall Senator Pratte's amendment, as amended, carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the first amendment, clause 3 on page 4, which I read a moment ago, replacing lines 9 and 10, carry?
Hon. Senators: Agreed.
The Deputy Chair: Agreed.
The next amendment to clause 3, Senator Carignan.
[Translation]
Senator Carignan: I move that the bill be amended in clause 3, on page 4, by adding after line 27 the following:
"(3.1) the judge to whom the application for the warrant, authorization or order is made may, in his or her discretion, request that a special advocate present observations in the interests of freedom of the press concerning the conditions set out in subsection (3).''
The intent is to allow the judge, before issuing a warrant, to appoint a lawyer to present his or her perspective with a view to protecting the freedom of the press, and to make comments. Therefore, the judge is prevented from playing an inquisitorial role, and is instead assisted by a friend of the court. That is the intent, and this has been suggested and has been the subject of many of Senator Joyal's questions during witness hearings. That was a suggestion that I thought was important.
[English]
The Deputy Chair: Any further comment or questions?
Shall the amendment carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 3, as amended, carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Deputy Chair: Before I get to the title, what we're doing is that, at third reading stage, we're to turn our minds to the important subject brought up by the chiefs of police, their legal authority, and perhaps the movement of further amendments, as has been suggested here, specifically with reference to Senator Sinclair's suggestion that we will be considering this at third reading.
Quite honestly, I'm very concerned about what that counsel said, after having looked at the case law relating to it.
Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Deputy Chair: Does the committee wish to consider appending observations to the report?
Senator Sinclair: Nobody is to amend this any more.
The Deputy Chair: An order of no further amendments, apart from what we've discussed.
Senator Lankin: I only have a question as an interloper here. The observations that you just made with respect to the further work to be done and the concern that the committee has and the desire to bring some clarity to that, is that an observation?
The Deputy Chair: It could be. Turn our minds to it, yes.
Senator Lankin: Then I think, quite frankly, that that should be part of the report of the committee. At third reading debate, you can either say it's been resolved and people can speak to the resolution of that or not, unless that holds this up in an inappropriate way.
The Deputy Chair: Could we dispose of this question in short order?
Senator White: If I may, having not been here as long as many, my understanding of observations is that they are observations to the government. I don't believe that an observation would be appropriate, personally.
Senator Lankin: Okay.
Senator Batters: I agree with that. I don't think that's the proper subject for an observation on this particular bill.
The Deputy Chair: But it is a good observation for each one of us to consider as this bill goes to third reading.
Senator Joyal: That doesn't preclude you, Mr. Chair, from contacting Mr. Saint-Denis and asking him to reflect upon that and report to you. We have the interim time of two weeks. His answer can come back to you in writing and you can circulate it. Then we could advise on a common ground as to how we would approach the Commons with recommendations, if there are any from Mr. Saint-Denis. I would move that you contact Mr. Saint-Denis at the Justice Department and proceed with that request for information in relation to this specific section 3 of section 2 of the bill.
The Deputy Chair: Is it the committee's wish that I contact Mr. Paul Saint-Denis or some other person assigned in the Department of Justice who would have knowledge of this particular section and look up the case law to find out exactly where we should be in relation to this question as it relates to third reading of the bill and any possible amendments?
Senator Joyal: And the pre-occupation expressed by the chief of police in relation to that section.
The Deputy Chair: And the preoccupation of the chief of police, exactly. Agreed?
Hon. Senators: Agreed.
Senator Munson: Who is going to talk to the media that are banging at the door right now? Are you going to carry the can?
The Deputy Chair: No, Senator Pratte is going to do that.
Is it agreed that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Deputy Chair: Thank you for an excellent meeting and your attention.
(The committee adjourned.)