Journalistic Sources Protection Act Evaluated by Supreme Court
Despite the important role that the media plays in a democracy, Canada has long lagged behind other jurisdictions when it came to source protection. When law enforcement sought an order under the Criminal Code or compelled disclosure was sought through civil discovery, the courts were forced to resort to common law principles.
With the passing of Bill S-231 -An Act to amend the Canada Evidence Act and the Criminal Code in 2017, Canada formalized these protections through the Journalistic Sources Protection Act.
Some of the main features of the Act include a broad definition of a journalist. The Court in Grant v. Torstar appeared to use a more expansive definition, providing the protection of the new defence of “responsible communication” to bloggers and tweeters, expressly rejecting the label of “responsible journalism” at paras 96-97 to allow for other forms of communication that rapidly displacing communication.
In contrast, the Court in R. v. National Post and Globe and Mail v. Canada (Attorney General) referenced these same passages in Grant, and expressed reluctance at paras 40-41 to extend constitutional immunity to a heterogeneous and ill-defined group utilizing various communication tools.
The Act addresses this by providing an explicit definition of “journalist” in s. 39.1(1) of the Canada Evidence Act, and therefore identifies the parties it intends to provide protections for,
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.
People will invariably (and eventually) quibble about the definition of the media, especially with traditional media increasingly moving primarily or exclusively online, but for now this appears to be a source protection exclusively for the traditional media alone.
The Act also provides a definition for the types of sources it intends to protect,
journalistic source means a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source
Because the Act came into force prior to the facts in R. v. Vice Media Canada Inc., it’s still unclear how the Court would have applied it to that case, or whether the framework used in National Post and Globe and Mail would apply, including the emphasis on confidential and non-confidential sources in evaluating the journalistic relationship. The Act does provide far broader protections to journalists from warrants, wiretaps, or production orders under s. 488.02(5) of the Criminal Code.
The Act modifies the tests for orders under the Criminal Code and the Canada Evidence Act, allowing journalists to provide a formal objection under s. 39.1(2) to the disclosure of information or document where it is likely to identify a journalistic source.
The main distinction in the Act from the Court’s approach in National Post and Globe and Mail, and a Wigmore-style approach to protection, is that it creates a reverse onus for the party seeking the disclosure. After a journalist makes an objection, the test to be met by the court is as follows,
39.1(7) The court, person or body may authorize the disclosure of information or a document only if they consider that
(a) the information or document cannot be produced in evidence by any other reasonable means; and
(b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to, among other things,
(i) the importance of the information or document to a central issue in the proceeding,
(ii) freedom of the press, and
(iii) the impact of disclosure on the journalistic source and the journalist.
The first case interpreting this Act before the Supreme Court of Canada was recently released in Denis v. Côté, reviewing a subpoena that sought the disclosure of confidential information from a journalist, whose leaks were the basis for numerous offences against the accused, including fraud, breach of trust and bribery of officers.
The appeal was unique at the outset in that it was an interlocutory matter within the criminal context. The subpoena in question served on the journalist would likely reveal confidential journalistic sources, and was quashed on first instance, granted on appeal, and then dismissed by the Court of Appeal. The appeal to the Supreme Court was therefore on two separate but related appeals.
The subpoena itself emerged in a unique context, in that the accused sought a stay of proceedings on the grounds they were abusive, in that the state conduct risks undermining the integrity of the justice system. The accused’s argument was that high-ranking government officials had provided journalists confidential information specifically for the purposes of implicating him and ensuring his conviction. The identity of these journalistic sources were therefore central to demonstrating the merits of the stay he was seeking.
The majority allowed the appeal against the Superior Court decision, setting aside the order that authorized the disclosure and remanding to the initial court for reconsideration. They also dismissed the Court of Appeal’s decision. What makes their decision interesting though is the manner in which they did so.
The majority based its decision on what they described as a change in the “factual matrix” that had “serious consequences,” including the ability of the Court of a factual basis to assess the Superior Court’s decision. The remedy they provided was therefore an exceptional one provided in exceptional circumstances.
Instead, the Court embarked on an interpretation of the new Act. Although they correctly identified the shift away from the common law and the reverse onus provisions under s. 39.1, they characterized the new statutory statutory definitions of “journalist” and “journalistic source” as a threshold requirement for these protections,
 These definitions overlap the first three criteria of the Wigmore test, whose role was essentially to determine whether the relationship at issue could correctly be characterized as being “journalistic”. The third criterion, that of the existence of a relationship that was “sedulously fostered”, was based on the premise that the maintenance of constant relationships between “journalists” and “journalistic sources” is generally in the public interest. That being said, as we will see below, this premise does not bar a court, in the course of the balancing exercise, from assessing the importance of this relationship in the context of the actual facts of a specific case, especially where a clear attempt has been made to divert journalism from its legitimate purposes.
 At first blush, the definitions of “journalist” and “journalistic source” in the CEA limit the spectrum of persons who can claim the privilege against disclosure. I would stress that nothing in these reasons should be regarded as deciding the question — which, moreover, is not before the Court — whether participants in a public debate who do not fall within the scope of these definitions can nonetheless invoke the common law scheme on this point on a residual basis. This question is beyond the scope of this appeal, and I will therefore not answer it.
The Court also created a threshold test from the first part of the provisions under s. 39.1(7), which they termed as reasonable necessity, thereby importing a significant body of of case law into the interpretation of this provision,
 This criterion based on reasonable necessity existed in the former common law scheme in the context both of search warrants targeting the media (Canadian Broadcasting Corp. v. Lessard, 1991 CanLII 49 (SCC),  3 S.C.R. 421, at pp. 431‑32; Vice Media, at para. 16) and of the Wigmore test, of which it was one of the relevant factors (National Post, at paras. 66‑67). Moreover, the idea that particular importance should be attached to this criterion, indeed that it should be an essential condition for the disclosure of confidential information, was expressed in two dissents: Lessard, at p. 455, per McLachlin J. (as she then was); see also National Post, at paras. 147‑49, per Abella J. These dissenting reasons seem to have been a source of inspiration for the reasons in Globe and Mail, in which the Court held that, although reasonable necessity was not explicitly found to be determinative, a court must determine whether the information is available by any other means. It is thus only as a last resort that a court should “[r]equir[e] a journalist to breach a confidentiality undertaking with a source”: Globe and Mail, at paras. 62‑63. The fact that the reasonable necessity criterion is provided for in s. 39.1(7)(a) CEA means that it is now a threshold requirement. If the applicant meets this requirement, the court will turn to the core of the analysis required by the new statutory scheme: the balancing exercise under s. 39.1(7)(b) CEA.
Finally, the Court commented on the non-exhaustive nature of the factors listed in s. 39.1(7)(b),
 …The court is therefore not barred from taking other factors into account, such as certain of the considerations that were formerly applied in relation to the fourth criterion of the Wigmore test. The case law from before the enactment of s. 39.1 CEA remains relevant, although the application of such additional considerations must not have the effect of eclipsing the ones explicitly retained by Parliament. Moreover, it is clear that the required balancing exercise is not a purely mathematical operation and that the weights of the statutory criteria — importance of the information being sought to a central issue in the proceeding, freedom of the press and impact of disclosure on the journalistic source and the journalist — will be assessed on a continuum of varying situations.
The sole dissent was provided by Justice Abella, who took issue with the formulation of the Act undertaken by the majority. She cites heavily from the Hansards around the Act to point to the legislative intent behind it, specifically in Parliament’s reaction to the ineffectiveness of the common law regime in protecting journalists appropriately.
The creation of threshold definitions as proposed by the majority would defeat the purpose of the Act, which is to create a presumption of protection of journalistic sources. Her reading of s. 39.1(7)(a) and (b) was that this presumption could only be displaced where there were no other reasonable means for obtaining the information, and the public interest in preserving the confidentiality was outweighed,
 Far from requiring an even balancing of interests, therefore, the new scheme anticipates that absent exceptional circumstances, a presumption of protection for journalistic sources will prevail.
The major flaw with the Superior Court’s application of the Act is that it attempted to mirror the approach already employed by the common law, effectively attempting to place the burden on the journalist rather than requiring the party seeking disclosure to prove why it should be revealed.
It’s possible that this application of the Act was informed by the approach in civil law, as it was interpreted in Quebec. The Superior Court’s statements certainly do appear to place an onus on the journalists, not the accused, stating,
 Quant aux conséquences de la divulgation sur la source journalistique et le journaliste, D et L s’inquiètent des répercussions qu’aurait une divulgation sur leur travail, leur crédibilité et celle des journalistes en général. Ils craignent qu’on ne veuille plus leur fournir de renseignements. Ce faisant, ils s’en remettent à des énoncés de principes généraux, les conséquences dont ils se plaignent étant inhérentes à toute divulgation. Ils n’allèguent aucune conséquence reliée à leur situation particulière.
 Par ailleurs, ils ne se préoccupent guère des conséquences d’une divulgation sur leurs sources elles-mêmes, celles que le législateur cherche pourtant à protéger.
 Ainsi, l’on peut affirmer sans crainte de se tromper que l’argumentaire des journalistes tend à présenter les facteurs relatifs à la liberté de presse et aux conséquences de la divulgation sur le journaliste comme étant des facteurs déterminants, des facteurs qui feraient foi de tout sur la base des valeurs qu’ils sous-tendent.
In “Comparative Approaches to Statutory Interpretation in Civil Law and Common Law Jurisdictions,” Gerard Carney states that French civil lawyers are loath to supplement statutory law, as the statute is intended to be comprehensive. Article 5 of the French Civil Code, for example, states that “Judges are forbidden to decide cases submitted to them by way of general and regulatory provisions.”
However, French interpretation is more creative than this formal expression, because according to Carney civil codes do have gaps and French judges therefore do engage in interpretation. He cites Jean-Étienne-Marie Portalis, one of the drafters of the Napoleonic Code, to illustrate how French judges have historically engaged in interpretation and filling of gaps. The basis for the stay sought in Denis by the accused also has parallels in the civil system, with the detournement de pouvoir (abuse of power) function being one of the main roles of the Conseil d’Etat in France.
It’s possible that the Quebec court, in interpreting the Act, understood the source protections in the context of this type of abuse of power, specifically in relation to s. 39(2), (4). At paras 123-125, they refer to the essence of the application as a case of state abuse of power through use of the media. In doing so, however, they may have achieved the opposite of giving effect to the intention of the legislature in the creation of presumptions, despite referring to this legislative context at paras 74-80.
The Superior Court characterized the facts, which they claimed were not in dispute, as disclosure very much within the context of an abuse of power claim, making explicit reference to the role of law enforcement,
 Comme cette description n’est pas remise en question en appel, il suffira de rappeler que…
(5) la transmission de ces éléments de preuve aux médias est le fait d’une ou de plusieurs personnes œuvrant au sein de l’appareil étatique, vraisemblablement au sein des services de police ou du ministère public;
(6) cette transmission des éléments de preuve aux médias constitue un acte illégal et criminel, étant ici précisé que la police les a recueillis en vertu des pouvoirs extraordinaires que lui accorde la loi, pouvoirs qu’aucun journaliste d’enquête ne détient.
The possibility of law enforcement or police being the ones to disclose the information to the journalist is omitted entirely by the Supreme Court, possibly due to the shifting factual matrix they describe.
The Superior Court decision details this further, explaining at para 48 that some of the media reports included information collected by the police through the execution of search warrants. A significant part of the analysis by this court wrestles with the idea of whether these are junior police officers or senior management, the latter of which would be a more compelling case of abuse of power by the state.
It’s the implication of police officers which compelled the Superior Court to conclude that this information was indeed a central if not crucial issue in the proceedings. If true, this information would weigh heavily indeed under s. 39.1(7)(b). The only clue we have is a potential sealing order and media lock-up that was proposed prior to the release of the judgement.
What we are left with is a deeply unsatisfying application and analysis by the initial application court of the new Act, and an equally hollow review by the Supreme Court of Canada. There is no indication that the reconsideration by the original court will be any more enlightening.
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