Canada's Original Think Tank

Second reading of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)

Second reading of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)

Second reading of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)

Second reading of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)


Published on 14 December 2016
Hansard and Statements by Senator Serge Joyal

Hon. Serge Joyal:

Thank you, Your Honour. I would like to commend the Honourable Senator Fraser for her reflection on and study of this bill.

I have a concern I want to share with you about this bill so that we understand quite clearly the implications of such a bill.

As honourable senators know, a democratic Constitution is a way of balancing the power among various entities so that there is a counterweight to the exercise of power so that one of the groups of power doesn’t have an advantage over another. It’s the delicate exercise of defining how you diffuse power among Parliament, among the executive, with the court, and with the fourth power, which is the media, the press.

When we are dealing with an issue related to journalism generally, we’re dealing with an essential element of the composition of our democratic system. There are many ways to juggle those various parts. You could give less power to the court and more power to the supremacy of Parliament, that is, the capacity of Parliament to make any legislation it wants.

You might have, as we do in Canada, a democratic parliamentary system whereby there are limits to the supremacy of Parliament. In parallel, so it is with the media. We can approach the media’s role as a counterweight with unlimited restraint and let them publish whatever they want. Or we can devise a system whereby there are parameters to the media, as much as there are parameters to the court. The court doesn’t come into Parliament to tell us how to rule our affairs. Similarly, we don’t go into the courts to tell the judges how to rule their own institutions.

The same with the journalists. We can conceive a system, as we are facing now, where one element of the executive, the police — the police is an arm of the executive of the government — gives unlimited access to the media, which is a way in fact to limit the capacity of the media to exercise their counterweight to the capacity of government to decide what is the public group.

In this bill we are faced with something fundamental, in my opinion. We will be redefining the capacity of the media as the fourth power to exercise its responsibility to keep the executive in check.

This bill does much more than say, “Oh, let’s give the journalists a capacity to do their job.” It’s more than that. We are venturing into the fundamental role of a Constitution.

We are caught presently with a review of Bill C-51 in the other place. There they are tackling how to reassess the exorbitant power that was voted by the previous Parliament into the hands of the police. In that bill, we gave the police a very large and broad capacity to look into data and metadata, which police used in those days to try to picture the way citizens exercise their freedom in our democratic society.

In the coming months, we will be called to look into those reports. The journalists are now caught in that. They are the first ones to be subjected to the new environment in which we find ourselves, considering that we are “at war with terrorism.”

When we are at war with an enemy, it changes the dynamics of the exercise of our democracy. This is a clear example of what has been raised by Senator Carignan and supported by Senator Pratte, that by studying this bill we will have to also take into account how the police forces have been invested with additional power to evaluate and to keep an eye on all of the other citizens who exercise their freedom normally, with nothing to reproach. They go on with their daily lives with the light conscience of the honest person, the honest man and the honest woman. But you can be caught in that web of being watched, being spied on, without even knowing it.

Honourable senators, in my opinion, this bill has to be understood in light of that approach and a re-evaluation of the power that we give to the police forces and that we need in the system. They are requesting additional power. The police are now resisting a recent decision rendered by the Federal Court and the Supreme Court recently whereby the police cannot look into your computer, by means of your IP number or whatever other access they have, to know more about you without you knowing. That’s the trigger. Journalists have been caught in that by a different means but with exactly the same result.

When we send this bill to the Standing Senate Committee on Legal and Constitutional Affairs, as I think has been proposed, the first thing that we should do is put our minds to this to understand the overall picture in which we will be proposing that Parliament legislate in relation to that very segment of the role of the media in our democracy, in a world whereby terrorism is part of the most important responsibility of the government, which is to keep our country secure and to make sure that everybody can go about daily life without Big Brother behind his or her back, in the context that we need to maintain the counterweight of the media against the executive. Don’t fool yourself. This is what it is.

Senator Pratte has given us examples of the sponsorship deal and whatever else, but there is also the Maher Arar affair. This is terrorism; this is within the context of the fight against terrorism. There are very serious issues there. It’s not just to catch the crooks who put money in their back pocket, and it makes a good movie. That’s not at all what we’re dealing with here. We are dealing here with the fundamentals of our democratic system, which is broad and which involves the way that we balance those different components of our democratic system.

Honourable senators, when we reflect upon those bills and each one of us is called to make a decision in relation to that — and I hope the bill is going to be referred to the Legal and Constitutional Affairs Committee — we will have that as the broad parameters of what we want to do in relation to the proposal that Senator Carignan is putting forward, which I think is totally welcome. We’ve come to the point where, considering what we have to face as challenges to the security of Canada, we have to take into account that when we’re touching one element, in fact we’re triggering a reaction somewhere else in that kind of balance we have to keep.

Honourable senators, that’s the only element I wanted to share with you because reflecting upon this is a very important fundamental constitutional challenge, in a way, that we will have to address in this session. It touches not only the freedom of journalists to go around and chase whoever they think they should chase, but also on the capacity of each and every one of us to go about our daily responsibility with a free mind, knowing that nobody is trying to check on our freedom to participate in the democratic life of our country.

That’s essentially what I wanted to share with you, senators, because it was one element of what has been proposed by Senator Carignan and elaborated upon by Senator Fraser and Senator Pratte.

 

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