Honourable senators, I am pleased to speak today to explain the reasons why I felt it necessary to table Bill S-231. This bill seeks to protect a pillar of our democracy — the protection of the whistle-blower or the protection of anonymity of sources.

Over the past few weeks, Canadians, as well as the political, legal and journalistic communities, have been dismayed to learn that the Montreal police force and the Sûreté du Québec placed a number of journalists under electronic surveillance after seeking and obtaining warrants.

More recently, during his testimony before the Standing Senate Committee on National Security and Defence, Mr. Brian Rumig, Assistant Director of Operations for the Canadian Security Intelligence Service, admitted that in the 30-year existence of CSIS, it was probable that journalists could have been the subject of surveillance.

Journalistic sources or whistleblowers that provide information to the media or blow the whistle on abuse they have witnessed play a critical role in our society. They help keep the government accountable to Canadians. Journalistic sources, or people who blow the whistle on abuse in their workplace or elsewhere in the public administration system, take a great deal of risk when they expose wrongdoing, fraud, abuse or the misappropriation of public funds.

As the Supreme Court ruled in the Globe and Mail decision, and I quote:

The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process.

In the National Post ruling, Supreme Court justices were clear about the fundamental importance of protecting confidential sources, those who are known as "whistleblowers." In this case the Supreme Court wrote, and I quote:

It is in the context of the public right to information about matters of public interest that the legal position of the confidential source or whistleblower must be located. The public has an interest in effective law enforcement. The public also has an interest in being informed about matters of public importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality.

The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions. There is a demonstrated need, as well, to shine the light of public scrutiny on the dark corners of some private institutions.

The Supreme Court also addressed the disruptive effects as follows:

. . . unless the media can offer anonymity in situations where sources would otherwise dry-up, freedom of expression in debate on matters of public interest would be badly compromised. Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment.

Honourable colleagues, the infamous sponsorship scandal is just one of the journalistic revelations that happened because confidential sources wanted to disclose information about a democratic deficit. A Globe and Mail journalist, Daniel Leblanc, relied primarily on information from a confidential source who later became known by the pseudonym "Ma Chouette" to write a series of articles about the sponsorship program.

Without that whistleblower, who remains unknown to this day, hundreds of millions of dollars would have been spirited away without honest citizens ever finding out. The source's confidential information was mainly about a number of problematic and fraudulent activities related to program administration. The most serious allegations had to do with the misuse and misappropriation of public funds. For the entire period they were in contact, Mr. Leblanc agreed to protect his source's anonymity and the confidentiality of their exchanges.

In a healthy democracy, the role of the media is to keep those in power in check. Inadequate protection for sources could compromise that ability to counterbalance judicial, political or police powers, an ability that relies in part on information provided by men and women who are not prepared to reveal anything if doing so could pose a significant risk to their physical, financial or material safety.

They will do it only on condition that their anonymity is guaranteed.

Basically, journalists are the active agents of freedom of the press, which is recognized as a fundamental right in our society. However, in order for journalists to be able to act as the effective force behind freedom of the press, they must be allowed to enter into confidentiality agreements with the sources who guide them in their research, inform them of dubious schemes and provide them with crucial information in their search for the truth.

Without these sources, the sometimes scandalous stories that undermine the integrity of our democratic institutions or that violate the most basic rules of probity and good governance may never come to light. The blight affecting public administrations could therefore spread even further until it finally reaches the very core of our institutions.

Honourable senators, without these sources, the sponsorship scandal of the late 1990s would never have come to light. Therefore, without journalistic sources, there would have been no Gomery Commission, and this serious scandal would never have been uncovered and made public.

More importantly, the discovery of this wrongdoing served to prevent other similar and equally insidious abuses. This notorious scandal also served to clarify and define the confidentiality of journalistic sources. At the time, Groupe Polygone was being sued by the Government of Canada — which wanted to recover the $35 million it had paid the Group through the sponsorship program — and it wanted to know the source Daniel Leblanc had used to get very sensitive information from the government bureaucrats. First, the Superior Court of Quebec ruled that Mr. Leblanc had to reveal his source and could not assert his right to protect the source under the Wigmore test to protect that anonymity. I will come back to this test a little later on.

This case made it all the way to the Supreme Court. In October 2010, the highest court in the country determined that, on the contrary, the protection of Mr. Leblanc's source's confidentiality was just as legitimate under Quebec civil law as it was in the rest of Canada under the common law system.

In this important unanimous decision written by Justice Louis Lebel, the Supreme Court indicated, and I quote:

. . . bearing in mind the high societal interest in investigative journalism . . .

The judge indicated that an anonymous source should only have to be identified if it is "vital to the integrity of the administration of justice."

The Globe and Mail decision therefore confirmed that anonymous sources are protected in Quebec by applying the Wigmore doctrine in the evidentiary process. The Wigmore doctrine sets out four criteria that help a judge determine whether a request for the disclosure of a source's identity is justified.

The courts use this test to determine whether the identity of a confidential source can be disclosed. The relationship must be one that should be sedulously fostered in the public interest. It also must be determined whether the public interest served by protecting the identity of the informant outweighs the public interest in getting at the truth. In such conditions, the right to protect a source is not automatically granted. The courts decide on a case-by-case basis, in accordance with the importance of the case and especially the public interest.

Unlike solicitor-client privilege, journalist-source privilege is not a constitutional privilege, and like solicitor-client privilege, the right not to disclose the identity of a confidential source must be weighed against the underlying democratic values. As with solicitor-client privilege, it is the client that benefits. When it comes to journalist-source privilege, it is not a privilege of journalists but rather a right to protect sources.

Honourable senators, in the case of the surveillance warrants targeting journalists that were exposed this fall, we think it unlikely that the justices of the peace who authorized these orders were actually compelled to apply the criteria set out by the Supreme Court.

The Government of Quebec launched a public inquiry into the matter, but it aims only to examine the practices, without any constitutional jurisdiction to examine the many aspects that fall under federal jurisdiction. However, beyond the merits of a commission of inquiry in Quebec, whose recommendations would only be submitted in a few years' time, these cases nevertheless reveal the weaknesses of the current systems.

These troubling cases show that the pillars of our democracy remain fragile. In addition, since the jurisdiction of such a commission could not extend to federal legislation, which includes the Criminal Code and the Canada Evidence Act, federal action is needed.

Prior to that ruling, in 2009, the Fédération professionnelle des journalistes du Québec was already very worried about the tactics being used to try to uncover the identity of Mr. Leblanc's source. It called for legislation to guarantee the protection of journalistic sources. Without such legislation, the Fédération professionnelle des journalistes du Québec said that confidential sources would always be at the mercy of people who sometimes do not fully understand these other facets of public interest that include freedom of the press, the public's right to information and the duty of our public institutions to be accountable.

Honourable senators, considering the recent revelations, it has become extremely important that we provide a framework for the protection of sources or whistle-blowers through formal legislation. That is the purpose of Bill S-231.

In concrete terms, this bill recognizes the fundamental role of the work of investigative journalists, of their sources and of whistle-blowers in our democracy. It protects the journalistic source privilege that has not been expressly recognized in our legislation to date.

It provides procedural tools that will help journalists meet the obligation of confidentiality that they have to their sources who are acting in the public interest.

More specifically, Bill S-231 amends the Canada Evidence Act and the Criminal Code. The bill defines what constitutes a "journalist" and what constitutes a "journalistic source" for the purposes of applying the Canada Evidence Act and the Criminal Code.

If this bill passes, only a judge of a superior court within the meaning of section 552 of the Criminal Code — in Quebec that means a judge of the Court of Quebec — may issue a search warrant, authorization or order relating to a journalist.

Any information obtained as part of an investigation pursuant to a duly authorized search warrant and the conditions set by the court is to be placed in a packet and sealed by the court, and none of the parties can consult it without the court's authorization.

If an officer wants to consult the sealed evidence, a notice must be sent to the journalist in question and the relevant media outlet. They will then have 10 days to object if they feel that the information could identify one of the journalist's anonymous sources who was acting in the public interest.

If the journalist objects to the information being disclosed, it would be up to the officer soliciting the information to provide evidence to show that the information in question is vital to the investigation under the Evidence Act and the Criminal Code.

An objection can be raised before any court or federal agency, which will make it possible to extend protection to the many administrative agencies that often manage issues that are not known to the public but that are still in the public interest.

The four criteria of the Wigmore test would continue to apply. This means that, first, the communications must originate in a confidence that they will not be disclosed.

Second, this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

Third, the relation must be one which in the opinion of the community ought to be sedulously fostered.

Fourth, the injury that would insure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

The fourth criterion is important. It means that the court must weigh the importance of disclosure for the administration of justice and the public interest in preserving the confidentiality of the journalistic source.

The judge issuing an order referred to in the Criminal Code, Lessard, can establish the conditions to minimize the disruption of the news organization's activities. The request procedure for search warrants must consider the need to limit excessive or overly invasive disruptions of these activities and enable the organization to voice its concern at the first opportunity.

The new act will override all existing legislation.

Bill S-231 would codify the practice shaped by the jurisprudence on this matter. Codification would result in a single process that respects the distinctness of the media and freedom of the press while adopting a uniform approach across the country.

This bill will preserve the rights of all parties. Its primary goal will be to protect the source, not the journalist. Journalists will have to protect the identity of sources to whom they have guaranteed protection, and police forces will be able to pursue their investigations if they are in the public interest.

This law will put an end to fishing expeditions in which police forces opt for the ease of following a journalist to reach a suspect rather than use conventional investigative methods.

Finally, the purpose of the bill is to not to put journalists above the law or to shield journalists from law enforcement if they are under criminal investigation or if they have committed a criminal offence. However, this bill will prevent what I call the Trojan horse technique.

What is more, it is important to legislate in such a way as to ensure that police officers or Canada's intelligence services cannot use a journalist without his or her knowledge to spy on someone else or gather information in order to catch another person.

In Canada, this would help earn the public's trust to help blow the whistle on government abuses. Outside Canada, in war zones, when journalists venture into risky territory, this measure would prevent them from being used unwittingly as a tool for spying on the enemy, which, should they be captured, might put their physical integrity or life in jeopardy while detained.

Honourable senators, the purpose of this bill is to protect the best interests of Canadians and preserve their trust in the integrity of their institutions. It is about protecting ourselves against attacks on one of the pillars of our democracy, Canadians' right to information and sound administration of their public institutions.

I invite you to support Bill S-231.