Bill C-426: An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants)

C-426 First Session, Thirty-ninth Parliament, 55-56 Elizabeth II, 2006-2007 HOUSE OF COMMONS OF CANADA BILL C-426 An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants) first reading, April 17, 2007 Mr. Ménard (Marc-Aurèle-Fortin) 391433 SUMMARY The purpose of this enactment is to protect the confidentiality of journalistic sources. It allows journalists to refuse to disclose information or a record that has not been published unless it is of vital importance and cannot be produced in evidence by any other means. It establishes specific conditions that must be met for a judge to issue a search warrant to obtain information or records that a journalist possesses. It also allows journalists to refuse to disclose the source of the information that they gather, write, produce or disseminate to the public through any media, and to refuse to disclose any information or document that could identify a source. However, a judge may order a journalist to disclose the source of the information if the judge considers it to be in the public interest, having regard to the outcome of the litigation, the freedom of information and the impact of the journalist’s testimony on the source. Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca .vis1 {position: absolute;display:block;} .vis2 {position: static;} 1st Session, 39th Parliament, 55-56 Elizabeth II, 2006-2007 house of commons of canada BILL C-426 An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants) R.S., c. C-5 Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. The Canada Evidence Act is amended by adding the following after section 39: Protection of Journalistic Sources Definitions 39.1 (1) The following definitions apply in this section. “journalist”« journaliste » “journalist” means a person who contributes regularly and directly to the gathering, writing, production or dissemination of information for the public through any media, or anyone who assists such a person. “record”« document » “record” has the meaning assigned to that word by section 3 of the Access to Information Act. Application (2) This section applies despite any other Act of Parliament and any other provision of this Act. Disclosure of the source (3) Subject to subsection (5), no journalist shall be compelled to disclose the source of any information that the journalist has gathered, written, produced or disseminated for the public through any media or to disclose any information or record that could identify the source. Power of the judge (4) A judge may, on his or her own initiative, raise the potential application of subsection (3) and ask the prosecution, the defence and any other party to present an opinion on the matter. Order (5) A judge may not order a journalist to disclose to a person the source of any information that the journalist has gathered, written, produced or disseminated for the public through any media, unless the judge considers that (a) the person has done everything in the person’s power to discover the source of the information; and (b) the disclosure is in the public interest, having regard to (i) the outcome of the litigation, (ii) the freedom of information, and (iii) the impact of the journalist’s testimony on the source. Burden of proof (6) A person who requests a judge to order the disclosure of a source has the burden of proving the matters referred to in paragraphs (5)(a) and (b). Disclosure of unpublished information (7) A journalist is required to disclose information or a record that has not been published only if the information or record is of vital importance and cannot be produced in evidence by any other means. Search warrant (8) A judge may not issue a search warrant, with or without conditions, in order to obtain information or a record that is in the possession of a journalist and have it produced in evidence if, having considered all the circumstances unless, the judge is satisfied that (a) all the conditions set out in section 487 of the Criminal Code are met; (b) in the circumstances, Her Majesty’s interest in the investigation and prosecution of an offence takes precedence over the journalist’s right to privacy in gathering and disseminating information; (c) the affidavit submitted in support of the application (i) contains sufficient detail to allow the judge to properly consider all the circumstances and determine whether all the conditions referred to in this subsection are met, and (ii) sets out all the alternative sources of information and affirms that they have been consulted and that every reasonable effort has been made to obtain the information from those sources; (d) any conditions imposed by the judge will ensure that the journalist and the media will not be unduly impeded from publishing the information; and (e) the search will not be unreasonably conducted. Record seized (9) Any record seized under subsection (8) shall immediately be placed in an envelope, and the envelope shall be sealed right away and opened only before a judge who shall determine the manner in which the record is to be kept and disclosed. Participant in seizure (10) A person who participates in the seizure of a record under subsection (8) shall keep the content of the record confidential, unless the judge directs otherwise. Information or record deemed published (11) For the purposes of this Act, information or a record is deemed to have been published if the publication that contains the information or record or its medium is produced in evidence. Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada