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 Joan Fraser (retired)
Hon. Joan Fraser:
Colleagues, this bill that Senator Carignan has presented — he is very busy these days, I must say — is designed to achieve a good and important goal. That goal is the protection of journalists from abusive police searches, searches that may be physical or electronic, and they would be conducted in order to discover confidential sources.
As both Senator Carignan and Senator Pratte have pointed out, this is not a theoretical problem. We have seen in Quebec that long, dreadful list that Senator Pratte gave us of journalists who have been subject to electronic surveillance by the police. There are other cases of abuse of police searches in their quest to find out who was supplying journalists with information.
Testimony from CSIS certainly sounds to me as if they have been engaging in similar surveillance in that if they haven’t, then why don’t they just say so? It is a really serious matter, colleagues.
Confidential sources of journalists are among the most important elements of some of the most important functions of journalism. I would quote the Supreme Court of Canada, Mr. Justice Binnie, in the 2010 case of R. v. National Post.
Mr. Justice Binnie wrote:
. . . an important element in the news gathering function (especially in the area of investigative journalism) is the ability of the media to make use of confidential sources.
He went on to say:
. . . the law should and does accept that in some situations the public interest in protecting the secret source from disclosure outweighs other competing public interests — including criminal investigations. In those circumstances the courts will recognize an immunity against disclosure of sources to whom confidentiality has been promised.
Of course, the reason why we believe those sources need to be protected is because, without those sources, stories, reports and news that is clearly in the public interest — usually of some kind of abuse, frequently by a public figure — would never become public, would never be known, if the journalists could not promise confidentiality to the sources who may be putting their livelihoods or sometimes even their lives at risk.
There are many good elements in this bill. Let me mention two. One is that authority to conduct such searches could not be given simply by warrants issued by Justices of the Peace.
In discussion with Senator Baker, I gather that this particular element may already exist in the Criminal Code. However, I am not sure that there is anything wrong with having it reiterated in a purpose-specific bill of this nature.
Another element that I like very much is the proposed careful safeguarding of seized material, after the warrant has been issued and the police have done the searches, until the journalist or the journalist’s employer has had time to respond before the court. The police could not use or even examine the material until the journalist has had an opportunity to make their case.
This is quite similar to what the law provides already to safeguard solicitor-client privilege if police seize material where that privilege might be involved. It is a fine safeguard to build in if we’re going to pass a bill like this.
I have, however, serious concerns about some of the specific language of this bill and, most particularly, about its definition of a journalist.
Defining journalism, as Senator Pratte suggested, is an extremely thorny and delicate thing to tackle. I’ll try to explain why.
First of all, if a law sets out to protect someone, it has to say, relatively specifically, who is going to get that protection. In this case, the people who would be benefiting from the protection are journalists and their confidential sources. We have to define who is a journalist.
Here is the other side: Having government, legislators, parliamentarians and politicians define who is and who is not a journalist, as this bill will do, can set us, collectively, on a most dangerous path. That is because the first function of a free press is to be a watchdog on governments, parliaments and politicians. We do not normally ask the people who are to be watched over to determine who is going to do the watching. That’s essentially what any attempt to define a journalist in law does.
I think that the tension between these two requirements is why the Supreme Court of Canada has never made a general definition of who is a journalist, nor has Canadian law, as far as I know. Indeed, the Supreme Court has avoided giving any blanket definition even of who is covered by the freedom of the press guaranteed in the Charter.
In that same National Post decision, Justice Binnie had the following striking remarks:
. . . the protection attaching to freedom of expression is not limited to the ‘traditional media’, but is enjoyed by ‘everyone’ (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the ‘news’ at passing pedestrians or publishing in a national newspaper. To throw a constitutional immunity —
This particular case was a constitutional case.
— around the interactions of such a heterogeneous and ill- defined group of writers and speakers and whichever ‘sources’ they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it . . . would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.
That was the Supreme Court speaking. Instead of giving blanket protection, the Supreme Court has always studied these matters on a case-by-case basis.
Of course, very few cases make it to the Supreme Court. Fighting such cases is extremely costly, takes a long time, and before you fight the case, you have to know that the search was conducted. If it’s an electronic search, you may not know that. Meanwhile, while a case does wind its way through the courts, if it ever does, the damage, too often, has been done.
Now let me turn to Senator Carignan’s attempt to square this circle by providing a legislative remedy. I applaud him for wanting to tackle this, for trying to tackle it.
Here is how his bill defines a journalist:
. . . journalist means a person who contributes directly, either regularly or occasionally, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person.
This is actually very close to the definition that was used in Bill C-426. That’s a private member’s bill presented in the other place in 2007 by the former MP Serge Ménard, a man for whom I have very great respect. That bill was not passed. I have to tell you that I’m just as glad it wasn’t.
The problem is that this definition is very broad, in my opinion. It could too easily protect people who should not be protected.
Let me stress, before I go on, that this is not a matter of freedom of expression. Under the Charter, everyone has freedom of expression, including freedom of the press and other media of communication. That means that subject only to normal laws like libel or hate-speech laws, everyone has freedom of the press. Everyone has the freedom to start a newspaper, a blog, a Twitter account or whatever method of expression they choose.
The issue with this bill is not who has freedom of the press in general. The issue here is who gets to claim special legal protection for confidential sources.
This bill’s definition is so broad that it could apply to all kinds of people, even, say, to people who sell ads for on-line peddlers of drugs or child pornography. It could apply to a web technician who posts false news and claims protection for a so-called confidential source. It might be their own imagination, but they would claim protection for a confidential source.
Another problem is that the bill does not define the media to which it refers. The explosion of technology and social media that we live with means that the question of who would benefit from this bill becomes increasingly murky.
In our time, in these days of what has become known as the post-truth age, these are not academic questions. Consider a few recent widely publicized phenomena. They are all, as it happens, American examples, but sobering nonetheless.
Consider the President-elect of the United States, who tweets regularly. Sometimes he tweets opinion. Fine. I may not share his opinions, but he has the right. Quite often in his tweets, which are quite regular, he makes factual assertions, and those whose business it is to verify these matters have sometimes found that the veracity of his factual assertions is dubious.
Are we going to give him confidential source protection, or somebody else less eminent but who, nonetheless, makes dubious and damaging assertions about other persons, calling them crooks or liars?
Another example: This month in Washington, a man from North Carolina walked into a pizzeria and started shooting. It’s a merciful blessing that no one was killed. But the reason he started shooting was because he had been reading reports on social media that this pizzeria was the centre of a child abuse operation involving prominent persons, notably Hillary Clinton. There was no truth whatsoever to the allegations. They had been completely fabricated, but this man acted on them. Should we be giving legal protection to some imaginary confidential source who fed the electronic media? I have a little trouble with that.
Then there is the case of what we believe to be Wikipedia and the Russians. American intelligence authorities say that the Russians have been hacking American political parties’ computers and leaking the material, presumably selectively, to Wikipedia. Wikipedia, as far as I know, has not confirmed that the Russians are its source. But it is a very serious matter when allegations end up being made and are not verifiable and nobody can be held responsible.
The Supreme Court of Canada has given some recognition to the concept known as “responsible journalism,” which might bring some discipline to the practical implementation of this bill. I must acknowledge and stress that Senator Carignan’s bill has been drafted to take into account — to reinforce, if you will — the Wigmore principles. Those principles exist in law and have been summarized thus:
(1) the relationship must originate in a confidence that the source’s identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fostered in the public interest; —
This is perhaps the most important one.
— and (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.
Those are really good principles, and the fact that they are in that bill would give me considerable comfort.
I do remain troubled. I would be happier if this bill included an updated version of the definition of “journalist” that now exists in the State of New York’s shield law. That law defines a professional journalist — I have trouble with the word “professional, but that’s another dispute:
“Professional journalist” shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.
Among other things, that does narrow the field of application of protection down to actual news. That has its own intrinsic value.
All that said, however, I want to acknowledge that this bill is a serious attempt to address a serious problem; therefore, I believe it deserves to be sent to committee for careful study, and I shall vote accordingly.
When the committee does that careful study, I hope it will call upon legal experts and experts in the field of journalism and communications so that the committee will be able to consider the points I have raised and maybe others have raised. I would be delighted to be proved wrong, but I would really like that study to be done thoroughly and carefully.
Thank you, colleagues.