Tilson Speaks In The House On Bill C-426 - An Act To Amend The Canada Evidence Act
November 21, 2021
Mr. Speaker, I am pleased to rise today to speak to Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants).
I want to congratulate the hon. member for Marc-Aurèle-Fortin, for bringing to the attention of the House the issue of journalistic privilege. Obviously, it is not the importance of the freedom of the press, or the hon. member's intentions that I am concerned with.
The issue of concern is with the provisions of the bill itself. I say this with respect to the hon. member and with an understanding of the difficulty of attempting to codify an extremely complex area of the law. However, I am concerned not only with what is in the bill, but also what is not in the bill.
A number of previous speakers have highlighted some of the problems with the provisions of the bill. For example, the definition of “journalist” is far too broad to the point that it would even include bloggers. The provision of the bill supercedes all other federal acts. Many of the provisions of the bill, especially the search warrant provision, should be in the Criminal Code rather than the Canada Evidence Act.
The bill contains tests that are unclear. There are illogical provisions in the bill that appear either to overlap or to contradict each other.
There are other gaps in the bill. For example, there is no waiver provision in respect of the privilege. There is no requirement that the journalist must be an innocent third party. There is no requirement that the information in the possession of a journalist must relate to a journalistic activity. Correction of these deficiencies of the bill would be difficult, and some of them, such as opening up the Criminal Code, would likely be ruled out of order.
I would like to turn my attention to the second concern I have about Bill C-426 and that is what is not in the bill. As indicated previously by another hon. member, the Canada Evidence Act is extremely broad in its application. It pertains to the reception of evidence in all criminal and civil proceedings and in other matters in respect of which Parliament has jurisdiction.
Specifically, the act applies to the judicial proceedings, proceedings from court before court marshals, federal tribunals, administrative bodies, proceedings before federal parliamentary committees, and the federal commissions of an inquiry.
The bill is heavily slanted toward considerations pertinent to criminal proceedings which, as noted, are only one component of the matters governed by the Canada Evidence Act. It is not at all evident that the provisions of the bill have been formulated in contemplation of the breadth of proceedings covered by the Canada Evidence Act. This is a very serious limitation. It will be extremely important to assess the operational impact of such a limitation.
Some of the questions which come to mind are the following: How will the issue of journalistic privilege be resolved when the proceedings do not involve a judge, for example, proceedings before a federal parliamentary committee? Section 37 of the Canada Evidence Act regarding public interest privilege has been carefully crafted to cover that scenario. Bill C-426 has not.
What about the proceedings before federal tribunals or administrative bodies? What procedural processes are to be followed to determine whether journalistic privilege applies in these kinds of proceedings? What, if any, review mechanisms are contemplated? The bill is completely silent on all of these important issues.
There is a clear and pressing public interest and public debate about what the policy of the law should be in respect of the protection of journalistic sources and information.
Fundamental policy and operational questions need to be addressed. For example, as a matter of policy, how should freedom of the press be balanced against other pressing public interest considerations? What procedures should be followed to determine these issues? Should these procedures differ, depending upon the nature of the proceedings, for example, a criminal trial versus a proceeding before a federal tribunal? What procedures should be adopted to protect the confidentiality of sources or information until the issue of journalistic privilege is determined by the decision-maker?
There are precedents in the Criminal Code and the Canada Evidence Act for provisions that have been carefully crafted to determine the important policy and operational questions regarding confidential or protected information.
So rather than proceeding with a bill that would need extensive amendments, some of which are likely to be ruled out of order, I believe that the issue of journalistic privilege should be the subject of careful study by the committee.
This study should be based on the review of other privileges, to ensure that protection measures are proportionate to the degree to which this privilege serves the public interest. The study should also take into consideration the numerous types of procedures and contexts under which privileges can be invoked.
The results of this study and the public debate on the issue may lead to very constructive conclusions that go beyond the four corners of the act.
In conclusion, the issue of journalistic privilege raises such fundamental policy and operational issues that the bill should be the subject of further study by the committee rather than being moved forward at this time.
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