An untested presumption

If you were holding your breath waiting to see how the Supreme Court would interpret Canada’s new journalism shield laws, you might as well exhale and repeat. You will be left at it awhile longer.

In its ruling on Friday in Denis v. Côté, the Supreme Court set aside an order that would have forced journalist Marie-Maude Denis to identify journalistic sources, but sent the matter back to the lower courts to be reexamined.

The case started with a criminal proceeding against Marc-Yvan Côté, a former Quebec Liberal Party politician who was arrested and charged with a variety of criminal charges, including fraud and bribery. There were allegations about his role in a dirty financing scheme to solicit political contributions from engineering firms in exchange for government contracts.

Côté sought to have the prosecution thrown out on the grounds that a series of leaks to Quebec media outlets, he alleges, came from the government itself. Those leaks, he argued, were prejudicial to his right to a fair trial.

In court, the Crown argued that the leakers seemed to be government employees, but not so highly ranked to be acting on the government’s behalf. It denied there was any conspiracy afoot to damage Côté in the public eye.

To settle the question, Côté’s legal team wanted to know who the sources were. It served subpoenas on two journalists who had published reports based he leaks: Louis Lacroix of L’Actualité and the Radio-Canada‘s Marie-Maude Denis.

Lacroix stated he didn’t know his sources’ identity, and could be of no help even if he wanted to. The case, therefore, focused on Denis, who did know the identities of some of the sources.

The law around journalistic sources has, for most of the past decade, been slowly working through the challenges surrounding press freedoms. In R. v. National Post, the top court decided that courts must determine if and when journalists can keep the identity of their sources secret on a case-by-case basis.

In 2017, the Trudeau government passed the Journalistic Sources Protection Act — a law designed to create the class-based protection that had been sought by journalists in the National Post case.

But the courts must still decide when to compel testimony, or when to issue a warrant, which can compromise that privilege. The new law introduced a balancing exercise for them to consider. They must weigh the importance of information being sought and how central it is to the proceeding against the impact disclosure would have on freedom of the press, as well as on the journalist and the source.

It was based on the new law that the Court of Québec denied Côté’s application to have the Denis’ sources identified. Côté successfully appealed the decision to the Superior Court. The Court of Appeal decided it had no jurisdiction in the case.

By the time the case landed before the Supreme Court, the Crown had announced that new information had come to light. It sent new evidence to the court in a sealed envelope.

“This change justifies remanding the case to the court of original jurisdiction in order to have that court conduct anew, once the new evidence has been adduced by the Crown, the analysis required by [the Act.]” the Chief Justice wrote.

“The Supreme Court of Canada’s decision in Denis v. Côté was not as momentous as I was expecting,” says Thomas Slade, a partner at Supreme Advocacy. 

Expectations surrounding the case had been high, particularly in the wake of the Supreme Court’s ruling in R. v. Vice Media. In that decision, it upheld an RCMP production order for text messages between a reporter and his source -- a Canadian alleged to be a member of the Islamic State.

“The Court in Vice Media was split on whether to formally recognize that freedom of the press enjoys distinct and independent constitutional protection,” Slade says. “Justice Abella and three other judges, including the Chief Justice, said it did in concurring reasons, while the other five judges took a more narrow approach.”

But that decision didn’t engage the new legislation, which hadn’t been introduced and passed into law until later. The court did, however, hint that it would have more to say on the matter, Slade says, and many thought that opportunity would be its ruling in Côté. “It felt like there was a great opportunity to take Justice Abella’s concurring reasons in Vice Media and make it the law with a majority.”

Even so, the justices did underscore the importance of the new act — a law, they wrote, that took the court’s jurisprudence on the matter and only modified it.

“Parliament has created a scheme of new law from which a clear intention emerges: to afford enhanced protection to the confidentiality of journalistic sources in the context of journalists’ relations with those sources,” the Chief Justice, for the majority court, wrote.

And in some of its clearest language to date, the court even goes out of its way to recognize that “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.”

It serves as some guidance. But as Slade notes, some questions will require clarification.

“We’ll no doubt see confusion over what it means to be a journalist or a journalistic source given the rise of citizen journalism,” he says.

The Journalistic Sources Protection Act also leaves the door open to judges to introduce their own criteria to the balancing test for disclosure of confidential sources. The top court acknowledged, in Denis v. Côté, that the balancing act “is not a purely mathematical operation.” But it did not take steps to fill in what sort of other subjective criteria could be used, except to say that disclosure should happen “only where the advantages of doing so outweigh the disadvantages.”

Abella’s dissent in this decision is much starker. It is, as Slade puts it, “a nod to what could have been.”

“Far from requiring an even balancing of interests,” she writes, “the new scheme anticipates that absent exceptional circumstances, a presumption of protection for journalistic sources will prevail.”

Abella would have seen Côté’s application quashed, taking issue with the Superior Court ruling which, she found, “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.”

Her dissent, in this case, wasn’t surprising, as it was in line with her opinion in Vice Media. But Slade says it could all be building up to something bigger.

“The next time these issues come back around, that dissent likely won’t make any waves, but her concurring reasons in Vice Media could be persuasive.”