Commercial Litigation and Dispute Resolution Blog

The first Supreme Court of Canada interpretation of the Journalistic Sources Protection Act

A former member of government charged with corruption offences. A CBC journalist investigating. Her sources allegedly came from within a government anti-corruption unit. These facts culminated in the first Supreme Court of Canada (“SCC”) decision interpreting new statutory protections for journalistic sources.

In Denis v Côté ^[1] the SCC provided guidance on the Journalistic Sources Protection Act (“JSPA”),^[2] which had amended the Criminal Code ^[3] and the Canada Evidence Act (“CEA”). The JSPA was ground-breaking legislation with the aim of enhancing protections for journalistic sources. ^[4]  It was enacted in response to revelations that police have been—for years—surveilling journalists. Prior to the enactment of the JSPA, journalists and their sources did not have distinctive legal protections in Canada and were at the whim of the common law test for privilege (the Wigmore test). Perhaps most onerously, the common law presumed the source ought to be disclosed, so journalists had the initial burden of proving that their source ought to be protected.^[5]

Journalistic sources leaking information about corruption allegations in Quebec

Marc-Yvan Côté, a former Quebec politician and consultant in the private sector was charged along with a number of co-accused with corruption related offences stemming from allegations that he orchestrated an elaborate system of secret political financing whereby construction and engineering companies made unlawful political contributions in return for advantages in obtaining government contracts.

A journalist for CBC, Marie-Maude Denis, presented four reports on an investigative journalism program about a possible system of corruption. The reports included sensitive information obtained from confidential journalistic sources, implicating Mr. Côté and his co-accused. Ms. Denis knew the identity of the sources in two of the four reports. 

Mr. Côté moved to have the charges stayed on the basis of an abuse of process, alleging that high-ranking government officials leaked information to journalists to prejudice him and his co-accused. The effect of the government leaks, he argued, was to deny him a fair trial by contaminating potential jurors by using the media to ensure a de facto conviction.

The Crown, resisting Mr. Cote’s application, argued that he provided only mere circumstantial evidence of such leaks, and that although the leaks probably came from a “rogue official” or “group of individuals” within the government anti-corruption unit, there was no evidence the leaks came from a high-ranking official. Mr. Côté sought to adduce direct evidence of the sources—by issuing subpoenas to Ms. Denis (and another journalist who did not know the identity of his sources, resulting in his subpoena being quashed) to reveal her sources.

The SCC Decision

As a result of a potential change in the factual matrix (involving the significant issue of whether Ms. Denis’s testimony would be necessary) the SCC sent the issues back to the court at first instance, but elected to provide general guidance on the journalistic source provisions in the CEA.

The SCC interpreted the JSPA provisions in the CEA and outlined four major changes from the old common law test.

First, under the common law test there was a presumption of disclosing the journalistic source identity, which had to be rebutted by the journalist. Now, non-disclosure is the new presumption. ^[6] The court can also raise s 39 of the CEA on its own initiative.

Second, the journalist need merely show that they meet the definitions of “journalist” and their source is a “journalistic source” (s 31.1(1)). Once that initial burden is met, the applicant must prove that conditions to disclose the source are met.

Third, as a threshold matter, the applicant then must establish that the information or document “cannot be produced by evidence by any other reasonable means”. ^[7] If this threshold requirement is met, the court will consider the balancing exercise. If not, the application fails.

Fourth, the balancing exercise requires the court to consider whether “the public interest in the administration of justice outweighs the public interest in preserving confidentiality of the journalistic source”, ^[8] taking account of the following criteria: (i) the importance of the information to a central issue in the proceeding before it, (ii) freedom of the press, and (iii) the impact of the disclosure on the journalistic source and the journalist.

The first question must be applied in stages: the information sought to be obtained must be “a” central issue (not “the” central issue), indicating that the further away from the central issue the information contains will lean towards non-disclosure. ^[9] The word “proceeding” should be interpreted narrowly to the specific motion before the court (in this case Mr. Côté’s application, not his criminal trial as a whole). ^[10]

In regards to freedom of the press, the court repeated the importance of the media in promoting democratic and free society, and that without whistleblowers and other sources, it would be difficult for journalists to preform their important mission. ^[11] In enacting the JSPA, Parliament decided it was in the public interest to provide statutory protections to journalists and their sources—as such, the freedom of the press criteria will often weigh against disclosure of the journalistic source. The court did, however, qualify this broad pronouncement on freedom of the press by giving the example of content that would lean towards disclosure of the source: false news. ^[12] The court’s comment in this regard indicates that the court won’t shy away from analyzing the “motives” of the source or the “content” of the information—which is potentially problematic for freedom of expression and of the press.

The court will look at the impact of disclosure on the journalist and source, noting that although the burden rests on the applicant, the journalist can provide evidence to the extent possible it would not reveal their source. ^[13] Impacts could include minor inconveniences (unwanted publicity) or more serious professional or financial consequences, judicial proceedings, or violence. ^[14] Although the court noted that the list of criteria is non-exhaustive, ultimately disclosing the identity of the source is only the appropriate remedy where the advantages of doing so outweigh the disadvantages. ^[15]

Abella J., in the sole dissent, would have set-aside the disclosure authorization and quashed the subpoena. In her view, the new test anticipates that “absent exceptional circumstances, a presumption of protection for journalistic sources will prevail”. ^[16]

Future Implications

The SCC’s interpretation of the new CEA provisions confirm broader, more robust protections for journalistic sources. It has, however, left unanswered a number of issues that are bound to end up before the courts again. For instance, the definition of “journalist” seemingly applies to professional journalists. Can citizens journalists (those participating in journalistic-like roles through social media or other platforms) fall under the definition of “journalist” and take advantage of these broader protections for sources? And if not, can these citizen journalists, or those participating in the public debate, take advantage of the old common law Wigmore test? ^[17]

Further, any “balancing” exercise entered into by the court can lead to discretionary decision-making and less-predicable outcomes. Will future courts conduct a balancing exercise that affords greater protections to upholding freedom of expression and the media’s essential role in Canadian democracy, or carve out exceptions by analyzing the content of information provided by sources (without the full context) thereby reducing the ability of journalists to fulfill their mandate?

Although the SCC did not rule on the specifics in this case, it did provide helpful guidance to lower courts, particularly by affirming that the JSPA was intended to provide robust protections for journalistic sources and confirmed greater protections for the media in conducting their investigative work that remains of central importance to Canadian democracy.

_{[1] Denis v Côté, 2019 SCC 44 [Denis v Côté].}

_{[2] Journalistic Sources Protection Act, SC 2017, c 22}

_{[3] S 488.01 of the Criminal Code was amended by the JSPA and applied to warrants issues with respect to journalist’s communications or to objects, documents of data in the possession of a journalist.}

_{[4] Denis v Côté at para 27 and Abella J.’s dissent at para 69.}

_{[5] See R v National Post, 2010 SCC 16 and Globe & Mail v Canada (Attorney General), 2010 SCC 41.}

_{[6] Denis v Côté at para 34.}

_{[7] Denis v Côté at para 39.}

_{[8] Ibid at para 41.}

_{[9] Ibid at para 44.}

_{[10] Ibid at para 43.}

_{[11] Ibid at para 47.}

_{[12] Ibid at para 49.}

_{[13] Ibid at para 51.}

_{[14] Ibid.}

_{[15] Ibid at para 52.}

_{[16] Ibid at para 71.}

_{[17] This question was undecided and left open by the Court: Ibid at para 38.}