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

a shifting of the burden of proof; new threshold requirements to: meet the statutory definitions of "journalist" and "journalistic source"; meet the criterion of reasonable necessity; and, 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...