Canada passes law to protect whistleblowers and journalists’ confidential sources

moved that the bill be read the third time and passed.

Mr. Speaker, this is not the first time that I have had the privilege of rising in the House, specifically to speak to Bill S-231, but I do it every time with some emotion. Having enjoyed the privilege and good fortune of being a journalist for 20 years, I am fully aware of the perils that lie ahead for the profession if, unfortunately, it cannot be practised with all the freedom bestowed upon us. Bill S-231 allows journalistic practice to be carried out in the noblest, safest, and fairest way for the public.

This is the third reading of this bill, which means that if parliamentarians agree, in a few hours, days, or weeks we will pass this very important piece of legislation that has a fantastic history.

About a year ago, misfortune befell journalists in Quebec, when it was discovered that senior journalists were the subject of police investigations and that their phones, iPhones, for example, their work tools, were being tapped. We learned that people whose job was to inform Canadians had been under surveillance far too regularly.

As soon as word got out about Patrick Lagacé, we learned that many other leading journalists in Quebec had been the subject of investigations either by the Sûreté du Québec, the Montreal police, or the RCMP. They include Patrick Lagacé, Vincent Larouche, Marie-Maude Denis, Alain Gravel, Isabelle Richer, Éric Thibault, Denis Lessard, André Cédilot, Nicolas Saillant, Félix Séguin, Monic Néron, Joël-Denis Bellavance, Gilles Toupin, Daniel Renaud, and Fabrice de Pierrebourg. Those are just some of the seasoned journalists who have been working in Quebec for years and who need to gather information in order to do their jobs properly.

When they learned that all these people were under investigation and were being wiretapped, Quebeckers, particularly journalists, were shocked. That was when Senator Claude Carignan decided to draft a bill that would protect journalistic sources so that journalists would never again be prevented from doing their jobs properly.

The beauty of Bill S-231 is that it sets out clear safeguards and makes the public the primary beneficiaries of a free press.

What we are talking about is one of the cornerstones of our very democracy. We are talking about a free press and freedom of expression here in the House of Commons, but first and foremost, from coast to coast in this country, the protection of journalists' sources. That is why the quality of the bill tabled by the hon. Senator Claude Carignan in the upper House, two months ago months ago, cleared the way and gave a clear mandate and clear signal to all whistleblowers in this country that when they talk to a journalist, they are free to do that and no one will interrupt them in the process.

This is a cornerstone of democracy. This is a cornerstone for whistleblowers. This is a cornerstone of journalism, so that is why I am so proud to be the godfather of the bill here in the House of Commons, thanks to the studious and very well done job by the hon. Senator Claude Carignan in the upper House.

Let us now take a detailed look at the issue to see what is so important about this bill and why it is so good for the future of press freedom in Canada. There are four key parts to this bill. First and foremost, it protects not journalists themselves but journalistic sources, the whistleblowers who uncover wrongdoing and want to tell a journalist about it.

The bill also defines a journalist. Anyone can write the odd blog post and call themselves a journalist, but a real journalist is someone who meets certain criteria, which we will get into later.

If a police officer wants to conduct an investigation—and they are in no way being prevented from doing so—they are given even better tools to do that.

In the future, superior court judges will be able to issue warrants to the police. I will be sharing some examples later that are a little disturbing, to say the least.

Lastly, it reverses the burden of proof. Police officers will have to prove that wiretapping is absolutely vital to the investigation. That reverses the burden of proof. Those are the four key parts of this bill: protecting sources, defining who is a journalist, enabling superior court judges to issue warrants, and placing the burden of proof on the police. We must take the time to look at all four of these closely.

I will begin by talking about protecting sources. I mentioned it briefly earlier, but it is fundamental. In plying their trade, journalists are not immune to making mistakes, but when journalists want to do a thorough investigation, they must have the freedom to do so and, more importantly, the ability to speak openly to someone who wants to share information. They also need to have assurances that that individual will not be targeted by a few people with bad intentions. Sources are therefore protected, but journalists themselves are not. Why? Because journalists are still seen as vectors in all this. One of the key components of this exercise is based on the source, and that is why we want to protect sources. This is why we also realize that the only way journalists can do their jobs properly is if their sources are protected.

Some people may call themselves or see themselves as journalists, which can be problematic. I would like to read the definition of “journalist” as it appears in the second paragraph of subsection 39.1(1) of the bill:

Journalist means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person.

Clearly, no one can suddenly begin calling themselves a journalist overnight. They must practise that trade for a media outlet or in a serious, recognized, and established sector. It must be their livelihood. The definition clearly indicates that not just anyone can call themselves a journalist. This is crucial because, as a journalist myself for 20 years, I remember being angry and annoyed at times when people claimed to be journalists, when in the end, apart from some friends who saw their scribbles, they definitely were not journalists. With the amazing and spectacular evolution of the media and the means of communicating information, anyone can quickly publish something online, but that does not mean they have the serious and rigorous fundamental skills needed to practise the profession correctly and responsibly.

I mentioned earlier that warrants authorizing police to investigate will now be issued by superior court judges. That is the third key part of the bill. Again, the police will never be prevented from doing their job properly or from stopping evildoers from doing bad things.

We are protecting whistleblowers, but at the same time, we are also protecting police officers, who need to do their due diligence. The difference is that the police will have even greater moral authority whenever they need to intervene, because they will have received authorization from a superior court judge.

Let us take the example of the Montreal police, better known as the SPVM. Does the House know how often the SPVM was given permission to investigate when it was asking so-called justices of the peace? Fully 98% of the SPVM's applications for warrants to investigate were granted. Is there even any point asking a justice, if they are going to say yes 98% of the time? I do not mean to put down those serving as justices of the peace, as their work is important and essential, but when it is a question of listening in on conversations between a journalist and a source, we need to make sure the decision lies with an experienced superior court judge.

In fact, this will give the police even more authority to do their job. Bill S-231, introduced by Senator Claude Carignan, strikes just the right balance. Yes, this bill protects the source, but on the off chance that a police officer needs to conduct an investigation into potential wrongdoing, then the officer will also have the moral authority to do so, because he or she will be armed with a warrant issued by a superior court judge.

We believe that strikes the right balance.

The last point I want to address is the reverse onus. Again I will cite the bill, specifically clause (9) on page 3, regarding the burden of proof:

A person who requests the disclosure has the burden of proving that the conditions set out in subsection (8) are fulfilled.

The idea behind this is to ensure that everything is legitimate. People cannot just pretend to be journalists, nor can people expect investigations to always be conducted right away or granted by lower court judges 98% of the time. These things have to be done properly. In the end, the police officer has the burden of proof to ensure that the entire process is done correctly and legitimately.

When the bill was introduced in the Senate it obviously caught the attention of journalists, but also of observers. I will quote a few people who were enthusiastic about the initiative, including the editor of Le Devoir, Brian Myles, who commended the senator “for achieving a miracle by generating an all-but-consensus among media owners and editors in Quebec and Canada”.

Tom Henheffer is the executive director of Canadian Journalists for Free Expression. In an article on April 12, 2017, he said, “Senator Carignan’s bill is the beginning of full legal recognition for the role that journalists play in serving the public and protecting democracy. The Liberal government must offer its complete support”.

So far that has been the case, and may it continue to be for the remaining hours of this debate.

The Globe and Mail's David Walmsley said, “We’re here because [we] are facing enormous threats”.

They are facing enormous threats when it comes to protecting sources. The Globe and Mail has spent up to $1 million in the past few months protecting journalistic sources. Today we are witnessing the culmination of a very important exercise that is of great value to Canadian democracy, since we are at third reading stage of the bill.

In the last few months, we have seen a threat to many journalists who have to work correctly and protect the whistle-blowers. These people all across this country, in the public service or elsewhere, can see bad things happening and want to call the shots, want to blow the whistle like we used to say, but they must say that to journalists with the clear protection that belongs to them. This is why this bill is good. This bill is correct for journalists, but first and foremost this bill is great for Canadian democracy.

For that reason, we hope to have the support and co-operation of the entire House of Commons at this third reading stage. To date, the work has been done in a rigorous, positive, and constructive manner. There was the study in parliamentary committee where people with different views were able to provide input. I was even asked to appear before a parliamentary committee for the first time, which I enjoyed. I was accompanied by Senator Claude Carignan, the sponsor of the bill, and by another senator, the Hon. André Pratt, who was in the noble profession of journalism for decades, and had a stint as the editor-in-chief of La Presse. At the end of his career, he was a distinguished columnist at that newspaper.

I am very proud to have sat with these two parliamentary colleagues, Senators Pratte and Carignan, to push for the bill and especially for the protection of working journalists' sources. This bill is the embodiment of what must be done to protect what is very precious in our democracy, freedom of the press.