Former member of the cabinet convicted of corruption. A writer with the CBC questioning. Its origins are said to have come from the government’s anti-corruption agency. These facts resulted in the first decision of the Supreme Court of Canada (SCC) interpreting new constitutional guarantees for journalistic sources. The Legislation on the Safety of Journalistic Sources amends the Checking of Directives under the Criminal Code and the Canada Facts Act, enabling journalists to make a substantive objection under s. 39.1(2) to the dissemination of information or records where a news source is likely to be found.
Before the Journalistic Sources Protection Act (JSPA), the right to compel information or records from journalists was limited primarily by a patchwork of common law doctrines. The JSPA marks a major shift in the legal system and has rightly been hailed as a triumph for free speech in general and media in particular. The goal of this post is to illustrate four main reasons why this is so. Around the same time, it is necessary to consider some of the shortcomings and possible disadvantages of the JSPA, since it is far from panacea when it comes to protecting journalistic sources.
With regard to compelled disclosure by means beyond the Criminal Code, the main protection of the JSPA is that it amends the Canada Evidence Act in such a manner as to encourage journalists to object to the disclosure of information or records before a judge, person or agency with power to compel disclosure of information on the basis that the information or record reveals or is likely to be identified. The reference to the term “court, entity or body” is broad enough to encompass not only judicial hearings but also trials before federal boards, commissions and other regulatory agencies or tribunals.
In Denis v Côté, the SCC issued clarification on the Legislation on the Defense of Journalistic Sources (JSPA), which revised the Criminal Code and the Canada Evidence Act (CEA). The JSPA was a ground-breaking piece of law with the goal of improving security for journalistic sources. It was introduced in reaction to revelations that the police had been tracking journalists for years. Prior to the promulgation of the JSPA, journalists and their sources had no distinctive legal defence in Canada and had been checked for privilege at the discretion of the Common Law Test (Wigmore Test). Perhaps the most relevant thing is that the common law assumed that the information should be revealed, meaning that journalists have the original responsibility of demonstrating that their source should be covered.
JOURNALISTIC SOURCES LEAKING INFORMATION ABOUT CORRUPTION ALLEGATIONS IN QUEBEC
Marc-Yvan Côté, a former Quebec official and private sector contractor, was charged, along with a number of co-accused, with corruption related offences arising from charges that he had engineered an intricate scheme of covert campaign finance under which building and engineering firms made illicit political donations in exchange for advantages in securing government contracts.
Marie-Maude Denis, a CBC journalist, delivered four reports of an investigative news programme on a potential system of corruption. The findings contained classified knowledge gathered from secret news outlets, concerning Mr. Côté and his co-accused. In two of the four papers, Ms. Denis knew the name of the sources.
Mr. Côté has sought to stay the proceedings on the grounds of a misuse of process, arguing that high-ranking government authorities have leaked documents to newspapers in order to injure him and his co-accused. The effect of the government leaks, he argued, was to refuse him a fair hearing by contaminating prospective jurors by manipulating the media to obtain a de facto conviction.
The Crown, refusing Mr. Cote ‘s appeal, argued that it presented merely a mere circumstantial proof of such leaks, and that while the leaks possibly originated from a “rogue official” or “gang of people” inside the government’s anti-corruption unit, there was no evidence that the leaks came from a senior official. Mr. Côté tried to provide clear proof of the origin — by providing a subpoena to Mrs. Denis (and another writer who did not know the name of his sources, culminating in his subpoena being quashed)—to disclose the sources.
THE SCC DECISION
As a result of a possible shift in the factual matrix (including a major concern as to whether the testimony of Ms. Denis will be necessary) the SCC sent the concerns back to the court at first instance, but decided to include general clarification on the conditions of the journalistic source in the CEA. The SCC interpreted the provisions of the JSPA in the CEA and outlined four significant changes to the old common law exam.
Firstly, on the grounds of the common law test, there was a requirement of disclosure of the media origins of identity, which the journalist had to refute. Today, the latest presumption is non-disclosure. Section 39 of the CEA can also be raised by the court on its own initiative.
Second, the writer has only to prove that he fits the concept of “journalist” and that his source is a “journalistic source” (s. 31.1(1)). Once the initial burden has been reached, the claimant must show that the requirements for disclosure of the source have been met.
Third, as a threshold question, the claimant must then determine that the information or record “cannot be generated by any other fair means.” If this threshold condition is satisfied, the court will consider the exercise of balance. If not, the appeal would fail.
Fourthly, the balancing exercise allows the court to decide whether “the public interest in the administration of justice outweighs the public interest in protecting the secrecy of the journalistic source,” taking into account the following criteria: I the relevance of the information to the key question in the litigation before it; (ii) freedom of the press; and (iii) the effect of the dissent.
The first question must be applied in stages: the information sought must be “a” central issue (not “the” central issue), suggesting that the further away from the central issue the information found would be geared towards non-disclosure. The term “proceeding” should be interpreted narrowly to the particular case before the court (in this case Mr. Côté’s application, not his criminal case as a whole).
With respect to freedom of the press, the Court affirmed the value of the media in fostering a democratic and equal culture, and that without whistleblowers and other outlets, it will be impossible for journalists to carry out their vital task. In implementing the JSPA, the Parliament agreed that it was in the general interest to offer constitutional protection to journalists and their sources — as such, freedom of the press can also be countered by the transparency of the media source. The court, however, qualified this expansive assertion on freedom of the press by providing an indication of the material that would contribute to the exposure of the source: fake news. The Court’s statement in this regard suggests that the Court would not shy away from examining the “motives” of the source or the “material” of the information — which is potentially dangerous for freedom of speech and of the press.
The court would weigh the effect of the disclosure on the journalist and the source, recognizing that, while the responsibility falls on the complainant, the journalist could, to the extent practicable, offer facts that does not disclose the source of the disclosure. Impacts may involve small inconveniences (unwanted publicity) or more serious professional or financial consequences, court action or abuse. Though the court acknowledged that the list of conditions is non-exhaustive, the revealing of the name of the source is only an acceptable solution if the benefits of doing so exceed the drawbacks.
Abella J., in her single dissension, may have set down the disclosure authorization and quashed the warrant. In its opinion, the latest test predicts that “in the absence of extraordinary situations, the principle of confidentiality of journalistic sources will prevail.”
KEY TAKEAWAYS OF THE DECISION
The decision improved the current section 39 of the Supreme Court. The CEA covers journalistic outlets rather than the common law. Since juggling is an important part of the test, it remains to be seen what sort of claims the victim may have based on the right to give a complete explanation and to justify himself, and with innocence at stake. Moreover, the majority decision to appeal the case back to the original court of jurisdiction reflects that the existence of other fair means of entry to the information is likely to be a crucial threshold consideration in many cases.
As the Parliament has opted to provide greater security for journalists, provincial governments will follow suit with equally improved protection under the civil framework. The Supreme Court left open the question as to whether parties who do not conform with the concept of “journalist” or “journalist source” could still have recourse to the enforcement of the former common law scheme on a residual basis.
The declaration further amends the Criminal Code in such a way that only a judge of a higher court of criminal jurisdiction or a judge within the scope of section 552 of the Criminal Code can issue a search warrant for a journalist. Which also states that a search warrant can be granted only if the judge is convinced that there is no other means in which the sought information can legally be accessed and that the public interest in detecting and pursuing a criminal crime outweighs the journalist’s right to privacy in the gathering and distribution of information. The judge must also be assured that the same requirements apply before an officer can examine, duplicate or render copies of a record seized in the form of a journalist’s search warrant.
The confidentiality of journalistic correspondence is an essential part of freedom of the media, generally accepted and protected under international norms and Canadian legislation. Infringing journalists’ confidentiality rights can lead to the silence of whistleblowers, weakening the media’s freedom to report on issues of public interest. This reforms in Canadian legislation are of considerable significance to the media industry, their outlets and the general public. The security of journalistic sources is a key journalistic concept enshrined in the Directive Principles. It is a requirement for a free and unbiased press and guarantees that journalists have access to information, including information about incidents of corruption and government misconduct. It is in the interests of people that the confidentiality of journalists’ sources is genuinely protected.
The analysis of the current CEA provisions by the SCC confirms wider, more stringent safeguards for journalistic sources. However, it has left a host of questions unresolved that are likely to end up in the courts again. For example, the concept of “journalist” tends to refer to accredited journalists. Will citizen journalists (those who take part in journalism positions through social media or other platforms) come under the category of “journalist” and profit from these wider channels of protection? If not, should these citizen journalists, or others taking part in the democratic discussion, take advantage of the Wigmore test of the old common law?
Furthermore, any “balancing” exercise conducted by the court can lead to discretionary decision-making and less consistent outcomes. Would future courts perform a balancing exercise that provides better protection to the maintenance of freedom of speech and the vital role of the media in Canadian society, or can they make allowances by examining the quality of information supplied by whistleblowers (without a complete context) to limit the capacity of journalists to serve their mandate?
Although the SCC did not rule on the specifics in this case, it provided useful guidance to the lower courts, in particular by affirming that the JSPA was intended to provide robust protection for journalistic sources and confirmed greater protection for the media in carrying out their investigative work, which remains of central importance to Canadian democracy.