Bill C-334: An Act to amend the Canada Evidence Act and the Criminal Code (journalistic sources)

Canada Evidence Act Criminal Code First Session, Forty-second Parliament, 64-65 Elizabeth II, 2015-2016-2017 HOUSE OF COMMONS OF CANADA BILL C-334 An Act to amend the Canada Evidence Act and the Criminal Code (journalistic sources) FIRST READING, January 31, 2017 Mr. Fortin 421344 SUMMARY This enactment amends the Canada Evidence Act to impose conditions in respect of the power to compel a journalist to communicate information likely to compromise the confidentiality of the identity of a source who has provided the journalist with information useful in the writing, production or dissemination, through the media, of information for the public. It also amends the Criminal Code to impose conditions in respect of the power to issue certain warrants concerning a journalist or something found in the office or residence of a journalist. Finally, it provides for provisions for the packaging of certain things seized. Available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca 1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016-2017 HOUSE OF COMMONS OF CANADA BILL C-334 An Act to amend the Canada Evidence Act and the Criminal Code (journalistic sources) Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.‍S.‍, c. C-5 Canada Evidence Act 1 The Canada Evidence Act is amended by adding the following after section 39: Journalistic Sources Disclosure — journalistic sources 39.‍1 (1) A journalist may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying, orally or in writing, that the information should not be disclosed because it is likely to compromise the confidentiality of the identity of a source who has provided the journalist with information useful in the writing, production or dissemination, through the media, of information for the public. Non-disclosure (2) If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act. Objection made to superior court (3) If an objection to the disclosure of information is made before a superior court, that court may determine the objection. Objection not made to superior court (4) If an objection to the disclosure of information is made before a court, person or body other than a superior court, the objection may be determined, on application, by (a) the Federal Court, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or (b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case. Limitation period (5) An application under subsection (4) shall be made within 10 days after the objection is made or within any further or lesser time that the court having jurisdiction to hear the application considers appropriate in the circumstances. Prohibition order (6) The court having jurisdiction may issue an order prohibiting the disclosure of information to which an objection was made under subsection (1) if it concludes that (a) the source provided the information to the journalist after receiving an assurance from the latter that the source’s identity would not be revealed; (b) the anonymity of the source is essential to the relationship between the source and the journalist; (c) the relationship between the source and the journalist has been sedulously fostered; and (d) the public interest in prohibiting the disclosure of the information outweighs in importance the public interest in the search for the truth. Disclosure order (7) If the court does not prohibit the disclosure under subsection (6), it shall, by order, authorize the disclosure of the information. Evidence (8) The court may receive into evidence anything that, in its opinion, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence. Date order takes effect (9) An order of the court that authorizes disclosure does not take effect until the time provided or granted to appeal the order has expired or, if the order is appealed, the time provided or granted to appeal a judgment of an appeal court that confirms the order has expired and no further appeal from a judgment that confirms the order is available. R.‍S.‍, c. C-46 Criminal Code 2 (1) The portion of subsection 487(1) of the Criminal Code before paragraph (a) is replaced by the following: Information for search warrant 487 (1) Subject to subsection (1.‍1), the justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (2) Section 487 of the Act is amended by adding the following after subsection (1): Journalistic sources (1.‍1) If the thing referred to in the information is in the office or residence of a journalist, the justice shall also, before issuing the order, be satisfied by the information that there are reasonable grounds to believe that (a) reasonable efforts have been made to obtain the thing; (b) the thing cannot be obtained by other means; and (c) the public interest in uncovering and prosecuting the offenders outweighs in importance, in the circumstances, the journalist’s right to the confidentiality of the identity of a source who has provided the journalist with information useful in the writing, production or dissemination, through the media, of information for the public. Terms and conditions — journalistic sources (1.‍2) The order may contain such terms and conditions as the justice deems appropriate so that the search and seizure does not impede the journalist’s writing, production or dissemination, through the media, of information for the public. 3 Section 487.‍01 of the Act is amended by adding the following after subsection (1): Journalistic sources (1.‍1) If the person who is the subject of the information is a journalist, the judge shall also, before issuing the order, be satisfied by the information that there are reasonable grounds to believe that (a) reasonable efforts have been made to obtain the information referred to in paragraph (1)‍(a); (b) the information cannot be obtained by other means; and (c) the public interest in uncovering and prosecuting the offenders outweighs in importance, in the circumstances, the journalist’s right to the confidentiality of the identity of a source who has provided the journalist with information useful in the writing, production or dissemination, through the media, of information for the public. 4 The Act is amended by adding the following after section 488.‍1: Definitions 488.‍2 (1) The following definitions apply in this section. judge means a judge of a superior court of criminal jurisdiction of the province where the seizure was made. (juge) officer means a peace officer or public officer. (fonctionnaire) Journalistic sources (2) It is prohibited for an officer acting under the authority of this or any other Act of Parliament to examine or reproduce a document in the possession of a journalist that the journalist claims is likely to compromise the confidentiality of the identity of a source who has provided the journalist with information useful in the writing, production or dissemination, through the media, of information for the public. Retention of documents (3) A journalist who claims that a document is likely to compromise the confidentiality of the identity of a source under subsection (2) shall (a) place the document, together with any related document, in a package and suitably seal and identify the package; and (b) retain it and ensure that it is preserved until it is produced to a judge as required under this section and an order is issued under this section in respect of the document. Application to judge (4) If a document has been retained under subsection (3), the journalist may (a) within 14 days after the day the document was begun to be so retained, apply, on three days’ notice of motion to the Deputy Attorney General of Canada, to a judge for an order (i) fixing a day, not later than 21 days after the date of the order, and a place for the determination of the question whether the document is likely to compromise the confidentiality of the identity of a source who has provided the journalist with information useful in the writing, production or dissemination, through the media, of information for the public, and (ii) requiring the production of the document to the judge at that time and place; (b) serve a copy of the order on the Deputy Attorney General of Canada; and (c) if the journalist has served a copy of the order under paragraph (b), apply at the appointed time and place for an order determining the question. Disposition of application (5) An application under paragraph (4)‍(c) shall be heard in private and, on the application, the judge (a) may, if the judge considers it necessary to determine the question, inspect the document and then, in that case, shall ensure that it is repackaged and resealed; (b) shall decide the question summarily and (i) if the judge is of the opinion that the document is likely to compromise the confidentiality of the identity of a source who has provided the journalist with information useful in the writing, production or dissemination, through the media, of information for the public, order that the document be returned to the journalist, or (ii) in any other case, order that the journalist make the document available for examination or reproduction by the officer; and (c) when making an order under paragraph (b), shall deliver concise reasons that identify the document without divulging the details of it. Order to deliver (6) If a document is being retained under subsection (3) and a judge, on the application of the Attorney General of Canada, is satisfied that the journalist has not made an application under paragraph (4)‍(a) or that after having made that application the journalist has made no further application under paragraph (4)‍(c), the judge shall order that the journalist make the document available for examination or reproduction by the officer. Application to another judge (7) If the judge to whom an application has been made under paragraph (4)‍(a) cannot act or continue to act in the application under paragraph (4)‍(c) for any reason, the application under paragraph (4)‍(c) may be made to another judge. Costs (8) No costs are to be awarded on the disposition of an application under this section. Prohibition (9) It is prohibited for the officer to examine or reproduce a document without giving the journalist a reasonable opportunity to argue that the document is likely to compromise the confidentiality of the identity of a source who has provided the journalist with information useful in the writing, production or dissemination, through the media, of information for the public. Prohibition (10) It is prohibited for the officer to examine or reproduce a document in the possession of a person, not being a journalist, who contends that the document is likely to compromise the confidentiality of the identity of a source who has provided a journalist with information useful in the writing, production or dissemination, through the media, of information for the public, without giving that person a reasonable opportunity to contact the journalist in question. Published under authority of the Speaker of the House of Commons