Supreme Court of Canada upholds media source protection law, affirms the rights balancing test to be used by judges

The Supreme Court of Canada has issued a decision that suggests journalistic source protection, which many reporters and editors believe is guaranteed under a law brought in by the Trudeau government, is far from absolute. Now, though, judges have clear guidance on how to weigh the rights of the accused against society’s need for media scrutiny of public affairs.

Yesterday (Sept. 27, 2019), the Court set aside an order from a Quebec court that would have forced Radio-Canada reporter Marie-Maude Denis to reveal her sources in a highly-charged political corruption case. Former provincial Liberal cabinet minister Marc-Yvan  Coté (called “C” in the Supreme Court decision) claims government insiders effectively used the media to set him up on charges of fraud, breach of trust and bribery in 2016.

Coté’s lawyers tried attempted to force Denis to reveal her sources, who, she admitted, were sources inside the government. The former minister’s counsel asked the court to order Denis to give up her sources or to throw out the charges because of behind-the-scenes political manipulation. The Defence argued that continuing the trial with the knowledge of the conduct of the behind-the-scenes state actors undermines the integrity of the justice system.

The Defence claimed high‑ranking government representatives had provided journalists with a significant quantity of confidential information for the purpose of prejudicing him, and wanted Denis to be ordered to give evidence that would shed light on their actions. Denis was subpoenaed.

The Court of Québec used the balancing exercise required by the new federal statutory scheme for the protection of journalistic sources set out in s. 39.1  of the Canada Evidence Act  (CEA ), the new provision that had been enacted by the Liberals when they brought in the Journalistic Sources Protection Act, S.C. 2017, c. 22 . The Quebec Court (the trial court in this case) judge quashed the subpoena. The Superior Court, hearing an appeal, applied s. 39.1  CEA  anew and confirmed that the subpoena was valid.

That decision was appealed to the Quebec Court of Appeal, which held that it did not have jurisdiction to rule on the appeal.

The Supreme Court of Canada performed a saw-off. It ruled the appeal against the Superior Court’s decision should be allowed in part. The Superior Court’s the order authorizing disclosure has been set aside, but Denis will have to go back to the original trial court for “reconsideration”. That’s hardly the outcome Canadian journalists should have been hoping for, but the CBC is claiming it’s a complete victory.

The Supreme Court sent the case back to the trial judge because the Crown in the case says disclosure of the source would alter the “factual matrix” of the case. It was not critical of the judge’s analysis per se.

Still, the Supreme Court upheld the new source protection law, looking at the wording of the legislation and the purpose of it, as it was explained in the Senate, where the bill got less partisan scrutiny.

Chief Justice Justice Wagner, writing for the majority, outlined the test to be used when courts consider ordering journalists to hand over material from sources, or the sources themselves: “A threshold requirement for the application of the new scheme is that the person objecting to the disclosure of information or a document that identifies or is likely to identify a journalistic source must show that he or she is a “journalist”, and his or her source a “journalistic source”, as defined in the CEA .

“Next, if the person succeeds in doing so, it is the party who seeks to know the source’s identity who must then prove that the conditions for judicial authorization of the disclosure are met. If a journalist objects to the disclosure of information on the ground that it is likely to identify a confidential source, non‑disclosure should be the starting point for the analysis.

“It is then up to the party seeking to obtain the information to rebut this presumption. This shifting of the burden of proof is the most important difference between the former common law scheme and the new federal statutory scheme. “

CJ Wagner noted that protection of  journalist‑source privilege was the exception in the former scheme. Now it has become the rule, but a two-part balancing test is available to litigants seeking journalistic sources.  “The court may not authorize the disclosure of information unless the party seeking its disclosure shows that the condition based on reasonable necessity is met and that the balancing exercise under the CEA  weighs in favour of disclosure.

“The party seeking the disclosure of information or a document that identifies or is likely to identify a journalistic source must show that the disclosure is reasonably necessary, that is, that the information being sought cannot be produced in evidence by any other reasonable means. (My use of bold type)  If this is not shown, the case is closed, and the application for disclosure will be dismissed.

If the party seeking the disclosure of information meets this requirement, he or she must then convince the court that the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source. This balancing exercise requires considering, on the one hand, the importance of the document or information being sought to a central issue in the proceeding and, on the other hand, the impact on freedom of the press and on the journalist and the source.

“To be successful, a party must convince the court that the document or information at issue is so important that this balancing exercise weighs in favour of disclosure. The court must bear in mind that disclosing information that identifies or is likely to identify a source is an appropriate remedy only where the advantages of doing so outweigh the disadvantages. It is only as a last resort that a court should require a journalist to breach a confidentiality undertaking with a source.”

Justice Abella argued that the Supreme Court should have upheld the trial court’s decision, saying the Superior Court wrongly shifted the onus onto the journalist to prove why she should be allowed to protect her sources: “(T)he legal foundation for the Superior Court of Quebec’s conclusion that a disclosure authorization was appropriate is unsustainable in light of the language and purposes of the Act.

“The Superior Court effectively placed a burden on the journalist to demonstrate why she should not be forced to reveal her sources, rather than requiring the party seeking disclosure to prove why those sources should be revealed.

“Moreover, the Superior Court applied the new legislation in a way that mirrored, rather than departed from, the former common law regime, and failed to recognize the paramount objective of protecting journalistic sources. Given these fundamental legal errors in the interpretation and application of the legislation, the disclosure authorization issued against the journalist should be set aside and the subpoena quashed.”

This will likely be the key case on this issue, at least for a while. The test seems solid, and the devil will be in the details of how the balancing is applied: what facts are required, what the level of proof is for the parties, whether journalists’ claims of hypothetical harm will be believed.