Journalists Don’t Have to Disclose Confidential Sources, but There is a Catch

by Christopher Fleury

We all hear about ‘fake news’. The Supreme Court of Canada (the Court) has weighed in on the issue and journalists’ credibility. The recent decision, penned by Chief Justice Richard Wagner, affirmed Parliament’s recent reversal of the burden of proof for journalists ordered to reveal the identity of their confidential sources. The law has essentially shifted from a presumption of disclosure of the source to a presumption of non-disclosure. You can read the full decision here: Denis v. Côté, 2019 SCC 44.

The applicant in the case, a Quebec journalist named Marie-Maude Denis revealed sensitive information about the alleged corruption of former Quebec Liberal Minister Marc-Yvan Côté. Côté and the other defendants were alleged to have set up an elaborate system of secret political financing in Quebec; a quid pro quo to gain advantage in public calls for tender and applications for subsidies. Côté and the other defendants were charged criminally and subpoenaed Denis as part of their defence. The subpoena compelled Denis to appear in Court and reveal the identities of her sources. The Quebec Provincial Court judge hearing the case upheld the subpoena and ordered Cote to reveal her sources. She appealed the decision.

The case centers on the interpretation of the 2017 amendments to the Canada Evidence Act protecting journalistic sources. The 2017 Legislation was a response to revelations the year prior that police in Quebec were surveilling journalists. The controversy galvanized multiparty support for the Bill, which passed unanimously in the House of Commons.

Under rather unusual circumstances, the Court sent the matter back to the Quebec Provincial Court for a rehearing. At the appeal hearing, the Crown provided the Court with new evidence, sent in a sealed envelope, which they said changed the ‘factual matrix’ of the decisions below.

This is a disappointing development as it was certainly open to the Court to set aside the decision of the lower court which effectively reverted to the pre-2017 analysis, putting the burden on the journalist to justify why she can not disclose her source.

The majority decision did make a number of significant acknowledgements regarding the importance of a free press. The Court commented: “In light of these founding values, it is easy to understand why mobilizing a journalist against his or her source is incompatible with freedom of the press” and “It can, in fact, be said that without such [journalist source] protection, the public’s very right to information would be jeopardized.” Still, much of the resoundingly affirmative comments toward the importance of press freedom are really just restatements of decades-old jurisprudence.

What will be interesting going forward is seeing the Court provide clarity on the meaning of the words ‘journalist’ and ‘journalistic source’ under the Act. Although these words are defined in the Act, in an increasingly digital age of journalism, the interpretation of these definitions is up for debate. For example, someone who comments in the public sphere, but is not a journalist by occupation, may not receive the types of protections that a more traditional journalist would. The Court’s decision comments on this issue but declines to interpret the definitions one way or the other. With this uncertainty, I predict that we will see future cases in which the Court is forced to provide more clarity on these definitions.