On Friday September 27, 2019, the Supreme Court of Canada released a decision interpreting the provisions of the Canada Evidence Act that sets out the rules in cases where protection of journalistic sources is central.
The protection of journalistic sources is a key concern for journalists across Canada. Often whistle-blowers or parties with reliable evidence form an agreement with a journalist to provide information of societal importance. Parties identified or connected with any news story that follows are often motivated for various reasons to seek the identity of the informants. Recognizing the need to protect the relationship between journalists and their sources, and to foster freedom of the press, Parliament amended the Canada Evidence Act to make the law clearer and to some extent bolster the protection of journalistic sources. The Denis v. Côté case was the first opportunity for the Supreme Court of Canada to comment on the legislative change.
The facts aren’t the facts
During the course of his criminal case at the trial court in Quebec, the applicant sought an order from the court disclosing journalistic sources regarding some news stories written about him. He argued that it was necessary in the interest of his case before the court because he was seeking a stay of the entire proceedings if the journalistic source was a high-ranking government official. The decision was appealed and much of the case revolved around which court had jurisdiction to hear the appeal from the trial court. By the time it got to the Supreme Court of Canada the parties had become aware that the facts as alleged below were wrong. Consequently, the Supreme Court of Canada wasn’t going to enter into an appeal based on evidence that was wrong. The Court decided, nevertheless to discuss the legislation to ensure lower courts could have the benefit of the discussion.
The greatest protection of journalistic sources
There has been common law and Charter protection of journalistic sources before Parliament came along and amended the Canada Evidence Act, but the protection was one that the journalist had to prove, if called upon. In other words, the journalist was required to present the evidence that would establish the requirements for the legal test to further protect their source. The legislative change reversed the burden of proof which is the most significant change to this legal landscape. The Court in Denis confirmed without much comment that it is now up to the applicant to establish that all conditions are met to require the Court to lift the protection for a source.
Threshold test: Journalist
Although the burden is on the applicant, it’s important to consider the threshold tests, particularly if you are concerned about protecting the identity or evidence of a source.
The first step is meeting the definition of “journalist”. The provisions of the Act only apply to persons, organization or their assistant “whose main occupation” is journalism. This is a concern for anyone who does journalism as a side job. Bloggers need to be prepared to counter the argument that they are not journalists if they intend to protect a source. The court refused to give guidance on this, although they were clearly aware that the legislation may face this challenge in the years to come. The court stated in paragraph 38:
I would stress that nothing in these reasons should be regarded as deciding the question — which, moreover, is not before the Court — whether participants in a public debate who do not fall within the scope of these definitions can nonetheless invoke the common law scheme on this point on a residual basis.
So the one warning we would make off the top is that if you intend to rely on these provisions, ensure that you are a journalist or dealing with someone whose main occupation is journalism.
Threshold test: Source
The Court barely touches on what constitutes a source, merely reciting the legislation:
journalistic source means a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist
The definition in the Act is a codification of what was already understood. There must be an expectation of confidentiality, a promise not to divulge in a case where anonymity is essential to the relationship.
Threshold test: no other means
Each of the threshold tests must be met by the applicant, but the first two tests really require the journalist to respond to the evidence of the applicant. Although the burden is on the applicant, because the first two threshold tests are based on information known to the journalist, as a journalist it would be foolish to think it wasn’t essential to call the evidence to establish that you and your source are entitled to rely on this shield.
The third threshold test is referred to by the court as reasonable necessity. The legislation says that the applicant must prove that the information or evidence cannot be produced in evidence by any other reasonable means. This reasonable necessity speaks to the ability to obtain the information rather than the purpose of the information which is part of the balancing test that comes later on. The court confirmed that the test is whether “the information is available by other means” before entering the balancing exercise in s. 39.1(7)(b).
Balancing – where things get vague
If all of the three threshold tests are met, the court making the decision needs to balance whether the interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source or information. The legislation does not provide an exhaustive list of categories, says the court, because the introduction to the list of possible considerations starts with “among other things.”
Weighing vague considerations like this seems to have become a common approach in Canadian law in the last few decades, which creates uncertainty. As lawyers, we prefer not to let judges express their own opinion. That, after all, isn’t their job. In the Denis decision the Court gives unhelpful suggestions such as giving a remedy “only where the advantages of doing so outweigh the disadvantages.”
The stipulated considerations are expected to be given significant deference in this weighing process. With respect to freedom of the press, the Courts said at paragraph 47 that “it is easy to understand why mobilizing a journalist against his or her source is incompatible with freedom of the press. Without whistleblowers and other anonymous sources, is would be very difficult to for journalists to perform their important mission.” Further on the Court confirmed that the intention of the legislation recognized that is “in the public interest to provide a robust statutory protection to such confidential sources of information.”
Freedom of the press is a finger on the scale in the weighing process giving an advantage to the journalist. The Court said that “the freedom of the press criterion will quite often weigh against disclosure of the journalist’s source identity.” (paragraph 48)
An extra criterion: the chilling effect
Although the legislation does not speak to the chilling effect of failing to be able to protect confidential sources, the Court made clear at the start that this is part of the consideration.
It is not unreasonable to consider that an inadequate protection of sources could contribute to their drying up. Their confidentiality must be protected in order to encourage their contributions and thereby favour the existence of strong and effective investigative journalism. (paragraph 35)
What can you take from Denis?
Journalists and confidential informants can take comfort in the assurance that the applicant must make out all of the steps of the application and if they fail in the threshold tests, the matter is done and the confidence is preserved. The problem is that, despite the onus being on the applicant, for the first two steps the journalist really needs to be prepared to demonstrate that they meet the test.
After that, the onus for the applicant becomes much more difficult. The third threshold test, “no other means” or “necessity” can easily fall apart for the applicant if they do not establish that they have taken reasonable steps or considered other reasonable steps to get the information they need.
When it comes to balancing, the Court has indicated that significant deference should be granted to the journalists and their source to protect freedom of speech. The problem is the judge hearing the case has the discretion to make evidentiary findings and express their opinion of how the advantages of one course of action outweigh the advantages. That, in our view, is of particular concern and therefore we advise caution.
The chilling effect of caution
From our perspective we wish to see a robust media with the confidence to tell the difficult stories, to investigate and to know that the courts will back them up when necessary. This confidence is what allows journalists to do their job. An overabundance of caution for fear that the courts won’t have your back is not conducive to good investigative journalism so protection of journalistic sources is hugely important.