Canada: A New Era In Journalist Source Protection: The Supreme Court Of Canada Clarifies Section 39.1 Of The Canada Evidence Act

A New Era in Journalist Source Protection: The Supreme Court of Canada Clarifies section 39.1 of the Canada Evidence Act

Denis v Côté, 2019 SCC 44, is the first instance in which the Supreme Court of Canada has interpreted the provisions of the federal "press shield law" delivered by the Journalistic Sources Protection Act (JSPA).1 The JSPA amended the Canada Evidence Act2(CEA) and the Criminal Code3 to provide more statutory protections for journalists. Prior to the JSPA, various common law doctrines governed the ability of others to compel journalists to produce information or documents.

Writing for the majority in a landmark decision, Chief Justice Wagner provided guidance on the process by which a court must conduct a CEA section 39.1 analysis. He noted that although the amendments to the CEA were based on the former common law, the new statutory scheme differs from the common law in "significant ways".4

Background

The case came before the Supreme Court as a rare interlocutory appeal in a criminal case. Ms. Marie-Maude Denis, a Radio-Canada journalist who broke a story about corruption in Quebec government, advanced two grounds of appeal. In her main appeal, she challenged the validity of a subpoena served on her by Mr. Marc-Yvan Côté for the purpose of obtaining the identities of her confidential sources in support of an abuse of process motion for a stay of criminal charges against him. The Court allowed the appeal but remanded the case to the court of original jurisdiction because of new information that could affect the validity of the subpoena. The second ground of appeal was with respect to jurisdiction and was dismissed by the Court.

A Proper Section 39.1 Analysis

The statutory scheme under section 39.1 of the CEA differs from the common law scheme in significant ways, namely:5

  1. a shifting of the burden of proof;
     
  2. new threshold requirements to:
    1. meet the statutory definitions of "journalist" and "journalistic source";
    2. meet the criterion of reasonable necessity; and,
       
  3. a balancing exercise, different from the one required at common law.

Burden of Proof and Threshold Requirements: Journalistic-Source Privilege is Now the Rule, Not the Exception

Under the common law, there is a presumption in favour of disclosing the identity of a source unless the journalist meets the four criteria of the Wigmore test. However, under section 39.1 of the CEA, the journalist's only burden is to show that they satisfy the threshold requirement of meeting the definitions of "journalist" and "journalistic source." How leniently or strictly future courts interpret this aspect of the provision will be important to track.

If the journalist satisfies these definitional requirements, the burden shifts to the party seeking disclosure to establish that the information or document "cannot be produced in evidence or by any other reasonable means."6 This criterion exists at common law but the Court elevated it to a threshold requirement, highlighting that it is only as a last resort that confidential journalist sources ought to be revealed.

Importantly, courts now also have the power to raise the issue of the disclosure of information that is likely to identify a source.7

These are shifts away from the common law scheme that reflect the JSPA's goal of enhancing protections for journalist sources.

Balancing Exercise: Explicit Considerations Taken From the Common Law Framework

Section 39.1(7)(b) of the CEA prescribes considerations in the balancing exercise to determine whether the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.8 The non-exhaustive list of considerations are:

  1. the importance of the information to a central issue in the proceeding before it;9
  2. freedom of the press;10 and,
  3. the impact of the disclosure on the journalistic source and the journalist.11

The Court has provided a two-stage test12 for courts to apply under section 39.1(7)(b)(i):

  1. First, the determination must be made as to whether the issue for which the party seeks disclosure of the journalistic information is a central issue; and,
  2. Second, once it has been determined as such, then the importance of the information must be considered.

The Court noted that the freedom of the press consideration will often weigh against the disclosure of a journalistic source's identity because of the public interest in freedom of the press. Nevertheless, the Court observed that, in the circumstance of the subpoena of Ms. Denis, the information sought need not be a central issue to Mr. Côté's criminal trial as a whole, but rather only Mr. Côté's abuse of process motion.13 Furthermore, it is not required that the issue in question is "the" central issue in the proceeding, but rather that it is "a" central issue, meaning not peripheral or of little consequence.14

Key Takeaways

Through this decision, the Supreme Court has reinforced that the new section 39.1 of the CEA is more protective of journalistic sources than the common law. As balancing is an integral aspect of the test, it remains to be seen what kind of arguments by an accused based on the right to make full answer and defence, and with innocence at stake, can prevail. Further, the majority's decision to remand the case back to the court of original jurisdiction reflects that the availability of other reasonable means to access the information is likely to be a key threshold factor in many cases.

As Parliament has chosen to provide greater protections for journalists, provincial governments might follow suit with similarly enhanced protections under civil frameworks. The Supreme Court left the issue open as to whether parties who do not meet the definition of "journalist" or "journalistic source" may still have recourse to invoke the former common law scheme on a residual basis.15

Case Information

Denis v Côté, 2019 SCC 44

Docket: 38114

Date of Decision: September 27, 2019

Footnotes

1 SC 2017, c. 22.

2 RSC 1985, c. C-5.

3 RSC 1985, c. C-46.

4 2019 SCC 44 at para. 32.

5 Ibid. at para. 32

6 Ibid. at para. 39.

7 Ibid. at para. 34.

8 Ibid. at para. 41.

9 Ibid. at paras. 42-44.

10 Ibid. at paras. 45-49.

11 Ibid. at paras. 50-51.

12 Ibid. at para. 44.

13 Ibid. at para. 43.

14 Ibid. at para. 44.

15 Ibid. at para. 38.

To view the original article click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions