Remarks by the Senator Claude Carignan at the Senate Committee on Legal and Constitutional Affairs o

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It is my pleasure to be here today as part of the Committee’s study on Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources).

Bill S-231 seeks to protect one of the essential components of freedom of the press which is increasingly threatened: journalistic sources.

In a free and democratic society, the democratic system rests on various pillars without which a democracy loses the very essence of its reason for being. Freedom of the press is one of these pillars. The media has a duty to provide fair and accurate information and acts as a counterweight by exerting a sustained pressure on the government of the day. And a duty to inform is closely linked to a right to be informed.

A government within any public institution that plays a legislative, executive or judicial role or any private organization funded wholly or partially by public funds must account for the use of these public funds or the exercise of its public power. Anyone who holds public power is susceptible to abuse. A person who witnesses an abuse of power or an abuse of funds should be able to use and trust the most appropriate means at their disposal to denounce wrongdoings. For many people, and for many reasons, this most appropriate means are journalists. These people become what we call “journalistic sources”.

Why protect journalistic sources? They are essential to keep the State and anyone who uses public funds responsible and accountable to the public. Without them, major scandals like “Shawinigate” or the sponsorship scandal would never have been discovered.

Journalistic sources who reveal abuse can have fears or face physical and psychological threats, and financial threats also. Sources who live in fear may well stop revealing information, and thus prevent the public from being informed.

A relationship based on confidence and trust is needed between journalists and their sources, as well as the presence of a legal code that gives sources the certainty that journalists will be able to keep their commitment in favour of anonymity. Investigative reporting relies on relationships between journalists and sources based on confidence and trust. Society as a whole is affected when the journalist-source relationship is undermined. S-231 seeks to protect this trust, in the best interest of the public.

It is through confidential sources that matters of great public importance are revealed to the public. S-231 will ensure their protection. But sources are increasingly worried about revealing wrongdoing.

Bill S-231 is founded on a contract based on trust between a journalist and a source. Without this contract, there would be no trust. A journalist’s corresponding obligation is to maintain the anonymity of its sources and to protect it at all legal costs.

Bill S-231 amends the Canada Evidence Act and the Criminal Code.

First, with regard to the Canada Evidence Act, S-231 creates a new subsection 39.1(1) which provides a definition for “journalistic source” and “journalist”.

Subsection 39.1(3) allows journalists to object to the disclosure of information before a court, a person or body holding the legal authority to compel the disclosure of information. The objection can be brought forward by a journalist or its media organization because the information or document identifies or is likely to identify a journalistic source. A court, person or body could bring such an objection on their own initiative.

According to subsection 39.1(7), a court or compelling authority could authorize the disclosure of information only if the information or document cannot be obtained by any other reasonable means and if the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.

The court would have to consider (1) the essential role of the information or the document, (2) the freedom of the press and (3) the impact of disclosure on both the journalistic source and the journalist. S-231 thus codifies case-law criteria of the Supreme Court of Canada.

Subsection 39.1(8) provides that the burden of proof would be on the person requesting the disclosure, who is in the best position to prove the information is essential and, especially, to show the information is impossible to obtain by any other means.

S-231 also provides for an appeal mechanism (subsection 39.1(10).

Concerning the Criminal Code:

Clause 3 details the judicial process relative to search warrants, authorizations and orders.

A new subsection 488.02(1) specifies that the concept of “data” includes computer data, such as logs and geolocation data.

Subsection 488.01(2) provides that only a judge of a superior court of criminal jurisdiction within the meaning of section 552 may issue a search warrant, an authorization or an order related to a journalistic source.

This amendment strengthens the criteria used to justify a request as fundamental as a search warrant. The variety of mandates that a judge of a superior court can issue with regard to journalistic sources would cover, namely, sections 492.1 on warrants for tracking devices and 492.2 on transmission data recorders.

A warrant, an authorization or an order could be obtained only if, in addition to the conditions required for the issue of the warrant, authorization or order, a judge is satisfied that: on one hand there is no other way by which the information can reasonably be obtained; and on the other hand, the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in the process.

The new subsection 488.‍02(1) provides that, upon execution of a mandate, the information collected will be sealed by the court and none of the parties is allowed to access the content without the judge’s permission.

An officer wishing to examine or reproduce a sealed document will have to send to the journalist and the media outlet a notice informing them that they wish to do so pursuant to subsection 488.02(2).

The journalist and media outlet will have ten days to oppose the officer’s request for a disclosure if they believe this information identifies or could likely identify a journalistic source.

In order to issue a disclosure order, a judge must be convinced there is no other way by which the information can reasonably be obtained. Moreover, the public interest must outweigh the journalist’s right to privacy. The onus is on the police to convince a court that this information is crucial to the ongoing investigation (reverse onus).

Journalists and their sources benefitted from measures taken following the Globe and Mail decision. Today, with S-231, their rights are strengthened in a piece of legislation.

For the first time in Parliament’s history, a bill recognizing the protection of confidential relationships between journalists and their sources can become law. I urge you to adopt this bill in the public interest.

If we do not protect whistleblowers, they will not come forward with the information that they possess. And this information matters for you, for me, and every Canadian. This is why S-231 is so important.

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