On September 27, 2019, the Supreme Court of Canada released the 8-1 ruling in Denis v Cote, 2019 SCC 44 examining the trust relationship between journalists and their confidential sources. If it is a victory for freedom of the press, it is not the one many had hoped for. Here’s the story.

Between 2012 and 2016 journalist Marie-Maude Denis presented court reports on her Radio Canada public affairs program Enquete about a possible system of corruption involving former Quebec Liberal minister, Marc-Yvan Cote. In 2016, Cote was charged with fraud and related bribery offences. The Crown alleges that Cote set up a system of secret political financing in Quebec in which engineering and construction companies made unlawful political contributions to gain advantages in public calls for tenders and applications for subsidies.

Cote brought an application for a stay of proceedings on the ground that they were abusive, claiming that high-ranking government representatives leaked confidential information to journalists to prejudice him and a number of other defendants. He asserted that his right to a fair trial and the presumption of innocence were violated as the potential jury pool was “contaminated by the numerous leaks” and the government “used the media to ensure his de facto conviction”. He served a subpoena on Denis seeking disclosure of her sources in order to identify who was responsible for the leaks and thereby establish the extent of the government’s involvement. Denis applied to quash the subpoena.

This is the first case to consider the new test under the Journalistic Sources Protection Act, SC 2017, c 22. The statute amended the Canada Evidence Act, RSC 1985, c C-5 by adding a new s 39.1. Sub-section (2) provides that a journalist may object to disclosure of information “on the grounds that the information or document identifies or is likely to identify a journalistic source.” Under sub-section (7) the onus is on the party seeking disclosure to show: (a) that the information or document cannot be produced by any other reasonable means; and, (b) that the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the source.

In balancing the public interest in the administration of justice and the public interest in preserving confidentiality of journalistic sources, a court is required to consider: (1) the importance of the information or document to a central issue in the proceeding; (2) freedom of the press; and, (3) the impact of disclosure on the source and the journalist. It appears on plain reading that the balancing is not limited to consideration of these three things as they are positioned by the statute “among other things”.

On February 12, 2018, in a ruling reported as Cote c R, 2018 QCCQ 547, Judge Andre Perreault of the Court of Quebec held, at paras 204 and 212, that disclosure of the sources was the only reasonable means to obtain the information and that the “proceeding” in issue under s 39.1(7) of the statute was the motion for a stay of proceedings. The importance of the information (the identities of the sources) was to be assessed in the context of the issues on that application and not the issues at trial.

Judge Perreault went on to conclude, at paras 215-6, that the public interest in preserving the confidentiality of the sources outweighed the public interest in the administration of justice because the information being sought was not important to a central issue in the motion. Denis did not know the identities of the sources. Even if the sources could be identified, it was uncertain whether that would make it possible to trace the people who made the leaks. The subpoena was quashed. Cote appealed.

On March 22, 2018, Justice Jean-Francois Emond of the Quebec Superior Court released the judgment reported as Cote c R, 2018 QCCS 1138 reversing the ruling of Judge Perreault. The parties had agreed that Judge Perreault made an error of fact. Denis was aware of the identities of her sources for two of her four reports. Justice Emond held, at para 137, that the error was central to Judge Perreault’s reasons on the key question of the importance of the information to a central issue on the application. Denis appealed.

On April 12, 2018, the Quebec Court of Appeal held that it lacked jurisdiction to hear the appeal in a unanimous opinion reported as Denis v Cote, 2018 QCCA 611. In the Court of Appeal’s view, the effect of s. 39.1(10) of the statute is that the only decision that can be appealed is that of the court that ruled on the original application for disclosure, because the “court, person or body” referred to in s. 39.1(7) is the decision-maker before whom the journalist originally objected; i.e., the ruling of Judge Perreault in the Court of Quebec. Therefore, in this case, the appeal to the Superior Court was the only recourse provided for under s. 39.1(10). On August 9, 2018, the Supreme Court of Canada granted leave to appeal.

4. In the Supreme Court

Writing for the majority, Chief Justice Richard Wagner began with this opener, at para 23: “The factual matrix has changed since the decisions of the courts below.” In the fall of 2018, the Crown received new evidence with this consequence – it could no longer “support the factual framework originally advanced in the Court of Quebec and the Superior Court.” On November 20, 2018, an adjournment of the hearing of the appeal scheduled for December 12, 2018, was granted. The Crown then sent “sealed information” to the court that it considered to be protected by “ongoing investigation” privilege.

However, Chief Justice Wagner went on to comment in obiter dicta, at para 24, that it was appropriate to define the scope of s. 39.1 and how it is to be applied. I will give you three takeaways from the analysis.

First, a reasonable necessity test is incorporated in s. 39.1(7)(a) which requires that an applicant seeking disclosure must establish that the information or document cannot be produced in evidence by any other reasonable means. “It is thus only as a last resort,” Chief Justice Wagner stated at para 40, “that a court should ‘[r]equir[e] a journalist to breach a confidentiality undertaking with a source.” (See also: Globe and Mail v Canada, [2010] 2 SCR 592)

Second, s. 39.1(7)(b)(i) contains two elements – the importance of the information or document to a central issue in the proceeding. Chief Justice Wagner suggested, at para 44, that the analysis should proceed in stages. It must first be determined whether the issue is a central one. The requirement is not that it be the central issue in the proceeding, but only that it be a central issue. A peripheral or limited issue would not favour disclosure. When it is determined that the issue is a central one to the proceeding, the importance of the information to that issue must then be considered.

5. Conclusion

The most significant aspect of the new statutory scheme is the shifting of the burden of proof. Under the common law scheme journalists claiming the privilege had to establish that it applied on a case-by-case basis. There was a presumption in favour of disclosure. The test under the new scheme only requires a journalist to prove that he or she is a “journalist” and that the confidential source is a “journalistic source” as defined in s. 39.1(1). The burden has been explicitly shifted under s. 39.1(9) to “the person who requests the disclosure” to prove that the statutory conditions are fulfilled.

But that is an evidentiary question. It is a question of proof. It is not a constitutional question. Although, as Justice Rosalie Abella observed in dissent at para 71, “the new scheme anticipates that absent exceptional circumstances, a presumption of protection for journalistic sources will prevail”, it is not a constitutional protection. The words freedom of the press contained in s. 39.1(7)(ii) of the Journalistic Sources Protection Act do not have constitutional content. (See: R v Vice Media Canada Inc, 2018 SCC 53; and, On The Wire. The Vice Media Case. December 14, 2018)