Significant New Statutory Protections For Journalistic Sources Affirmed By The Supreme Court Of Canada

Author:Mr Christopher Bredt, Pierre N. Gemson and Veronica Sjolin
Profession:Borden Ladner Gervais LLP
 
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The Supreme Court of Canada (SCC) has given effect to important new protections for journalistic source information in Denis v. Côté, 2019 SCC 44, its first case interpreting the Journalistic Sources Protection Act (JSPA). Enacted in 2017, the JSPA amended the Criminal Code and the Canada Evidence Act (CEA) to augment the journalist-source privilege recognized at common law with new statutory protections for journalists and their confidential sources. The SCC's decision confirms that the new statutory scheme altered the journalist-source privilege available at common law by creating a new presumption against disclosure and reallocating the burden of establishing that disclosure of journalistic source information is in the public interest to the party seeking disclosure.

Background

The appeal originated from a motion to stay a prosecution brought by Marc-Yvan Côté, a former Québec politician charged with offences including bribery, fraud, and breach of trust. Mr. Côté sought a stay on the grounds that the Unité permanente anticorruption (UPAC), a Québec government organization responsible for investigating public corruption, had leaked information gathered as part of the investigation for improper tactical purposes, that the leaks originated from high-ranking officials in UPAC, and were intended to deprive him of the right to a fair trial. The Crown disputed that any leaks were from employees of a sufficiently high rank to be acting on the government's behalf. Mr. Côté sought to supplement circumstantial evidence said to show that the leakers were acting on the government's behalf by seeking direct evidence of the identity of the leakers, and served subpoenas on journalists who had published information from the leaks. The appellant, journalist Marie-Maude Denis, had objected to the subpoena. This triggered the first application of JSPA amendments to the CEA by a Canadian court. Initially, the Court of Québec refused to authorize disclosure but an appeal to the Superior Court resulted in an order that journalistic source information be disclosed. After the Québec Court of Appeal found that it lacked jurisdiction to hear a further appeal, Ms. Denis obtained leave to appeal this interlocutory decision to the Supreme Court of Canada.

The appeal called upon the SCC to apply for the first time section 39.1 of the CEA, the statutory scheme enacted by the JSPA.

A "paradigm shift" in the law of journalist-source privilege

In an 8-1 decision the...

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