Denis v. Cote and the Myth of Onus in Journalist Shield Law

In Denis v. Cote, the Supreme Court considered Canada’s new journalist shield law, the Journalist Sources Protection Act (JSPA).[1] The JSPA, which amends both the Canada Evidence Act and the Criminal Code, altered the common law on protections afforded to the confidential sources and notes of journalists.[2]

The common law regime balances two competing public interests in deciding whether names or notes must be disclosed to police or civil plaintiffs. In the criminal context, there is the public interest in the detection and prosecution of crimes (law enforcement), to which journalist notes and sources are potential evidence or tools of investigation.[3] The other interest to be balanced is that of encouraging whistleblowers to come forward with secret wrongdoing to the media, which only happens on the assurance that the person’s identity will not be revealed to the police or public.

In two recent Supreme Court of Canada cases, National Post and Vice Media, the interest in law enforcement won out in circumstances in which the evidence sought was, at best, only possibly of probative value. (For my previous slaw commentary on these cases and journalist privilege more generally, see here and here). Concerns for the chilling effect on journalistic sources through the disclosure of names or handing over of notes, on the other hand, was downplayed in both cases.

The common law test also puts the onus on the journalist to prove that there is a chilling effect and, moreover, that it outweighs the law enforcement interest.

The JSPA changed some of that. It reversed the onus so that now the Crown (or in the civil context, the plaintiff) must prove “the administration of justice outweighs the confidentiality of the journalistic source having regard to

• The importance of the information or document to a central issue in the proceeding
• Freedom of the press
• The impact of disclosure on the journalistic source and the journalist”

The majority observed that “unquestionably” the most significant change to the common law through the JSPA was the reversing of the burden. Abella J., in dissent, went further in saying that “the new scheme anticipates that absent exceptional circumstances, a presumption for protection for journalistic sources will prevail.” In doing so, she quoted from Senate debates from one of the proponents of the legislation.

On first blush, Abella J. seems to have overreached. Nowhere in the JSPA is there language of “presumption” or “exceptional circumstances”. It seems to me however that she is right in setting the bar this high.

National Post and Vice Media both reveal a judicial attitude that favors law enforcement over the protection of journalist sources. The probative value of the evidence sought to aid in criminal investigations in those two cases was leniently presumed while the chilling effects of sources was not. This judicial attitude appears confirmed by the fact the police have been successful in 12 out of 13 disclosure/production order cases against the media in the past 25 years (cited here).

Source cases always involve incomplete – and usually an absence of– information (much less concrete evidence) about matters that the common law, and now the legislation, sets as part of the balancing exercise. Courts do not know what the probative value of a source’s evidence will be (since they have not seen it), the chilling effect on sources (since no one knows the effect of legal rules on the willingness of informants to come forward), or the impact of disclosure on journalists and their sources (since no one can presume to know how revealing a source’s identity will impact the person’s professional or personal life). Rather courts make highly speculative assumptions about these critical factors – and more fundamentally, choices between competing values imbedded therein – in the balancing exercise.

The majority decision in Denis shows that a bias that favors law enforcement over source protection is alive and well. At one point, the court notes that the motivation of the journalistic source is relevant. The example given is a source who has lied. But the identification of motivation as relevant is deeply problematic, and not only because it is highly speculative (i.e., we know nothing of the person’s identity or circumstances).

Studies show that most whistleblowers disclose wrongdoing internally and only go public when they are frustrated by a lack of response or action. Would a disclosure in such circumstances be considered a vendetta against a recalcitrant employer and thus an exempting motive? The court would have done better to treat lies as something not in in the public interest (implied in the protection of confidential sources) and therefore not worthy of protection.

The court also embarked on another highly speculative path in considering the impact on the journalistic source (which the JSPA requires). This impact, according to the majority, “could take the form of relatively minor personal or professional inconveniences (unwarranted publicity, being sidelined at work) or [more serious impacts]”. Again, we know nothing about the person or his or her circumstances. But it is even worse than that. There are countless case studies and books written about the serious – even tragic – effects of whistleblowing on personal and professional lives. For courts to engage in this kind of speculation is not only dangerous, it is irresponsible.

This factor should only come into play when the consequences would obviously be very serious. In other words, the consequences of whistleblowing are always serious but in some cases they may presumed to be very serious, thus auguring for non-disclosure.

By creating the reverse onus as the basis for remedying the lack of protection afforded in the common law regime, the JSPA seems fundamentally misconceived. It assumes that courts engage in a balancing exercise where, in the absence of evidence, one side’s burden is not discharged.

I doubt that will happen. Instead, courts – following dicta in Denis – will backslide into speculative exercises about presumed effects, which always favors law enforcement.

If that is true, then Justice Abella’s dissent better reflects the intent behind the JSPA by compensating for the misconceived notion that onus plays any role in the analysis.

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[1] The Supreme Court in Denis did not rule on the merits of the case, which was remanded back to trial, but instead provided guidance on this new legislation.

[2] To my knowledge, there is no comparable provincial legislation that might apply to actions brought in superior court, e.g. defamation suits. In these cases, courts have split in either applying the common law “Wigmore test” or denying any special protection to confidential sources.

[3] In the civil context, the public interest here would be the in the administration of justice or more particularly, providing fair disclosure to the plaintiff.