The Supreme Court Of Canada Upholds Statutory Protections For Journalistic Sources

The first Supreme Court of Canada interpretation of the Journalistic Sources Protection Act

A former member of government charged with corruption offences. A CBC journalist investigating. Her sources allegedly came from within a government anti-corruption unit. These facts culminated in the first Supreme Court of Canada (“SCC”) decision interpreting new statutory protections for journalistic sources.

In Denis v Côté 1 the SCC provided guidance on the Journalistic Sources Protection Act (“JSPA”),2 which had amended the Criminal Code 3 and the Canada Evidence Act (“CEA”). The JSPA was ground-breaking legislation with the aim of enhancing protections for journalistic sources. 4 It was enacted in response to revelations that police have been—for years—surveilling journalists. Prior to the enactment of the JSPA, journalists and their sources did not have distinctive legal protections in Canada and were at the whim of the common law test for privilege (the Wigmore test). Perhaps most onerously, the common law presumed the source ought to be disclosed, so journalists had the initial burden of proving that their source ought to be protected.5

Journalistic sources leaking information about corruption allegations in Quebec

Marc-Yvan Côté, a former Quebec politician and consultant in the private sector was charged along with a number of co-accused with corruption related offences stemming from allegations that he orchestrated an elaborate system of secret political financing whereby construction and engineering companies made unlawful political contributions in return for advantages in obtaining government contracts.

A journalist for CBC, Marie-Maude Denis, presented four reports on an investigative journalism program about a possible system of corruption. The reports included sensitive information obtained from confidential journalistic sources, implicating Mr. Côté and his co-accused. Ms. Denis knew the identity of the sources in two of the four reports.

Mr. Côté moved to have the charges stayed on the basis of an abuse of process, alleging that high-ranking government officials leaked information to journalists to prejudice him and his co-accused. The effect of the government leaks, he argued, was to deny him a fair trial by contaminating potential jurors by using the media to ensure a de facto conviction.

The Crown, resisting Mr. Cote's application, argued that he provided only mere circumstantial evidence of such leaks, and that although the...