Remarks for Jennifer McGuire and Michel Cormier at the Standing Committee Legal and Constitutional Affairs

February 15, 2017

Jennifer McGuire, General Manager and Editor in Chief, CBC News, and Michel Cormier, General Manager, News and Current Affairs - French Services, appeared before the Standing Committee Legal and Constitutional Affairs on February 15, 2017.

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

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Mr. Chair, Senators,

My name is Michel Cormier. I have been executive director of news and current affairs for CBC/Radio-Canada French services since 2012.

One of the essential components of Radio-Canada’s mandate is to enlighten Canadians by providing them with complete, accurate news and information programming. The investigative reports we produce would not be possible without the cooperation of confidential sources whose guaranteed anonymity is key to their coming forward.

On November 3, 2016, we received confirmation from the Sûreté du Québec (SQ) that the provincial police force had, three years earlier, got a justice of the peace to order phone companies to turn over the incoming and outgoing call records of three of Radio-Canada’s most respected investigative reporters – Alain Gravel, Marie-Maude Denis and Isabelle Richer.

The order covered a very long period – nearly five years – from November 1, 2008, to October 1, 2013, which just happens to coincide with the period when Enquête was investigating widespread corruption in the Quebec construction industry. Two reporters from La Presse and one from Le Journal de Montréal were also targeted by similar orders.

What is particularly disturbing about this case is that the SQ asked a justice of the peace to order the disclosure of information that could reveal the names of numerous journalistic sources over a five-year period, without any steps being taken to protect their identity. The request was made without anyone being informed. Had it not been for the crisis sparked by the Lagacé Affair, Radio-Canada, its reporters, the media and the general public would never have found out about this serious attack on the freedom of the press and the protection of journalistic sources. The SQ’s investigation ended in 2015 with no one being charged.

That is why we support Bill S-231.

We need to ensure that Bill S-231 includes a mechanism that will allow journalists and the media to participate, as often as possible, in the legal debates. We are convinced that the problems we have experienced over the past year are largely due to a lack of transparency in the process.

Experience shows that involving journalists in the discussion about transparency in the legal system provides the courts with essential insight. We can give countless examples of when publication bans were issued by a judge, and then reconsidered, often by the very same judge, after he or she had the opportunity to hear the media’s point of view.

We feel that, in the vast majority of cases, there is no reason why the courts could not notify the affected journalists before issuing warrants or orders. That’s why we are asking for an amendment to this effect. I will leave it to my colleague Jennifer McGuire to present our proposal.

Thank you, Michel.

Mr. Chair, and members of the Committee,

My name is Jennifer McGuire. As the general manager and editor-in-chief for CBC news, I add my thanks to all of you for allowing us to speak today.

The amendment I want to discuss is straightforward. And it remedies a key problem from the case Michel described: that the only perspective the court heard was that of the police. Surely, the public interest demands more thoughtful consideration than that.

We propose that before a ruling is made, the journalist involved should be able to articulate why, in some instances, the public interest might be better served by protecting the source than it would be by sharing the information with law enforcement.

This builds on one of the strongest provisions already outlined in s-231. That is the provision which makes clear a warrant cannot be issued by a justice of the peace, but instead requires a hearing in front of a judge from a provincial or superior court. This is an excellent standard.

After all, obtaining a warrant relating to news organizations should be the exception, not the norm. A report prepared last year for Montreal’s city council concluded that in the past few years more than 98 percent of all warrant requests presented to a justice of the peace by Montreal police were approved. So clearly, the bar needs to be higher.

Now, we recognize that in some cases, the information would be too sensitive to allow a journalist inside the tent. We deal with this in our proposal by calling for the creation of a special advocate, a sort of amicus curiae, who could, after reviewing the disclosure, make the necessary representations to the judge.

By accepting our suggestions, you can strike a better balance in achieving the core promise of this draft Bill: protecting journalistic sources while giving police the tools they need to do their jobs.

I can imagine no better time to reaffirm our country’s commitment to freedom of the press. Canadians deserve and demand to be informed. And make no mistake that quality investigative journalism matters. Confidential sources play a part in some of our most important stories. Think for example about the issue of sexual harassment inside the RCMP. The CBC’s stories did more than expose wrongdoing. They led to change, they preserved the integrity of one of Canada’s most critical institutions, and ultimately they contributed to public trust.

But the current environment puts the confidential sources at risk which will have a chilling effect on them and affect our capacity to report news. Frankly, we need more protection. That is why we are encouraged by Bill S-231, and hope it will be passed.

Our modest suggestion would go far to enhance this Bill and preserve the finely-tuned balance required to serve the public interest. It would serve as a moderating influence on any authority who might submit an exaggerated or ill-thought-out request. And it would provide the judge with a broader view of the issues at play.

I look forward to any questions you may have, and thank you again for hearing from us.

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