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Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), with amendments)


Canada Evidence Act
Criminal Code

Bill to Amend—Thirteenth Report of Legal and Constitutional Affairs Committee Adopted

The Senate proceeded to consideration of the thirteenth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), with amendments), presented in the Senate on March 9, 2017.

Hon. Serge Joyal moved adoption of the report.

He said: Honourable senators, I seek leave because I am standing in for Senator Baker who has requested that I introduce the report today. Senator Baker was the chair of the Legal and Constitutional Affairs Committee. I did attend, of course, the meetings of Legal and Constitutional Affairs, and I need your concurrence to be able to act on his behalf in that capacity.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Joyal: Thank you, honourable senators. I'll look at my watch. I will try to keep my remarks short.

Bill S-231 is entitled an Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources.)

Honourable senators will remember that that private member's bill on the Senate floor was introduced by our colleague Senator Carignan, following, as you know, a lot of reports in the media in relation to investigations that took place against journalists in the improper, I should say, legalistic context.

The bill introduced by Senator Carignan was the object of extensive debate and study at Legal and Constitutional Affairs. I would like to list just a few names of the witnesses that we had the opportunity to hear. We had, of course, a coalition of Canadian media, including the Toronto Star, the National Post, The Globe and Mail, French CBC, English CBC, Le Devoir, Canadian Journalists for Free Expression, la Fédération professionnelle des journalistes du Québec. We heard also from representatives of the Canadian Council of Criminal Defence Lawyers, from lawyers from the firm Gowling. We also heard lawyers from Canadian Media Lawyers Association. We heard the Canadian Police Association and the Canadian Association of Chiefs of Police, plus, of course, experts from the university community and, of course, authors and retired journalists.

The committee had an extensive opportunity to delve into the proposed legislation. Your committee comes forward with five groups of amendments. The first amendment deals essentially with the definition of journalist. The original definition of journalist didn't contain the elements of restitution or the elements of, I should say, pay that are essential to try to circumscribe the group of journalists that would be covered by the bill.

For the purposes of the bill, we proposed that the definition of journalist include "a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration." The word "consideration" is very important. Consideration can be anything, of course: It could be money, it could be access to certain benefits and it could be compensation of any sort.

The essential element of the definition is an individual who is a journalist, as I say, who contributes directly, either regularly or occasionally, for consideration to the collection and dissemination of information. That is the first amendment, and it stems from the representation we had from the police associations and, of course, from the coalition of news media. So it's essentially the expression of that preoccupation they had.

The second amendment is in relation to extending the journalist protection to those who were journalists when a situation happened and they chose not to reveal their sources. So in other words, it would extend the definition of journalist to those who have been journalists in the past but might find themselves in another professional capacity or who have ceased to be a journalist.

The third amendment, and my personal comment in relation to it is I think it is an important one, states that when a court has to authorize the disclosure of information, the bill provides that there be two elements that the court would consider, and your committee is adding a third one. That third element is essentially that due consideration was given to all means of disclosure that would preserve the identity of the journalistic source.

In other words, when a person seeks to authorize the disclosure, it has to pay due consideration to all other means of disclosure that would have preserved the journalistic source. The authorization to disclose the journalist's source comes only when we have spent all other ways to provide the source.

The fourth amendment is essentially to extend the warrant procedure to those of a general purpose. The list of the bills included search warrants and other warrants provided in the code but not the general warrant of section 487.01; section 487 was essentially the amendment that we made.

Finally, the last amendment was also requested by the coalition of media, which is essentially that when a judge is requested to issue a warrant, he or she will have to balance what we call the public interest on one side and the prosecution of criminal offences on the other side.

The judge would find themselves in a situation where they would, in fact, have to act as an investigator to find if the protection of public interest has been sufficient as promoted, of course, by those seeking the warrant.

So we have provided that there will be a special advocate there, at the request of the court, to balance the requests of the police forces on one hand and the serving of the public interest on the other. The special advocate would be there to speak on behalf of the public interest.

I will mention again that the amendment was proposed by the witnesses that we heard from. So then the amendment would read:

The judge to whom the application for the warrant authorization order is made may, in his or her discretion, request that a special advocate present an observation in the interests of freedom of the press concerning the conditions set out in the bill.

In other words, it's to balance the bill. In a nutshell, honourable senators, you will understand that the study of the Legal and Constitutional Affairs Committee was extensive with the list of witnesses we've heard from. The subject is of great interest, honourable senators. You might have read in the paper last week that the Court of Appeal of Ontario made a decision in relation to a magazine called Vice regarding the disclosure of journalistic sources. The issue is still pending, and it is an issue that we have to address as a country.

Many other countries have already addressed it. In the United States, and in other parts of the western world, countries such as France, Britain, New Zealand and Australia, which are comparable to us in terms of democratic parameters, have protection for journalistic sources and I think that your committee has done its due diligence in studying this bill. I'm happy to report on behalf of the deputy chair of the committee, Senator Baker, that with the consideration of those amendments, I think your honourable chamber can continue to debate the bill at third reading.

Thank you, honourable senators.

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Senators: Question.

It was moved by the Honourable Senator Joyal, seconded by the Honourable Senator Cordy that the report be adopted.

Is it your pleasure, honourable senators, to adopt the motion?

(Motion agreed to and report adopted.)

The Hon. the Speaker: Honourable senators, when shall this bill, as amended, be read a third time?

(On motion of Senator Carignan, bill, as amended, placed on the Orders of the Day for third reading at the next sitting of the Senate.)