Sometimes it takes an outrage to trigger long overdue reform. When Quebec police were caught spying on journalists, it inspired Senator Claude Carignan to introduce a private members bill. In a reversal of the usual legislative order, first the Senate and then the House of Commons passed the bill, and the Journalist Source Protection Act (“JSPA”) was born, receiving Royal Assent on October 18, 2017.

In September 2019, the Supreme Court of Canada applied the new JSPA with commentary that illustrates its significant change to the law.

The JSPA amends both the Criminal Code and Canada Evidence Act, creating a new procedure and onus which is engaged when any judicial authorization is sought concerning journalistic materials, or even where an order unexpectedly results in police obtaining such material. The amendments require that the journalistic material not be disclosed without Crown discharging its onus to show that the authorization is both necessary and that its importance outweighs the public interest in protecting journalist sources.

In Denis v. Côté, 2019 SCC 44, the JSPA was invoked to quash a subpoena issued to a journalist, Marie-Maude Denis. An accused who was charged with several offices, including fraud and bribery, had applied to stay the charges on the grounds that confidential information was leaked to the journalist, and his counsel obtained a subpoena for the journalist’s material.

The motion to quash the subpoena succeeded. Writing for eight of the justices, Chief Justice of Canada Richard Wagner, observed that the prior law put the onus on the journalist who objected to the disclosure of information that might identify a source to establish that the four criteria of the Wigmore test were met. The JSPA displaced this common law scheme and now places the onus on those seeking disclosure to prove that the information “cannot be produced... by any other reasonable means” and to convince the court the document or information is so important that it outweighs the public interest in preserving the confidentiality of the journalistic source. Wagner, CJC was clear, it will only be as a “last resort” that a court should require a journalist to breach a confidentiality undertaking with a source.

Due to additional facts asserted by the Crown, the majority remitted the matter back for determination. Justice Rosalie Abella gave even more forceful reasons and would have quashed the subpoena outright.

The Côté decision contrasts interestingly with the Supreme Court’s decision almost one year earlier in R. v. Vice Media Canada Inc., 2018 SCC 53. The court at that time, confirming at the outset that the then-new JSPA had not been in force at the material time and therefore did not apply, upheld an order for a journalist to turn over electronic messages with a former Calgarian, Farah Mohamed Shirdon, who claimed to have joined ISIS in Syria. There was no agreement to hide his identity and his quotes in the Vice articles “strongly implicated” him in terrorist activities.

Still, the Vice case raised important issues regarding subpoenas and court orders which undermine neutrality by converting journalistic work product into police evidence. Recognizing that, the court underlined the importance of narrowly tailoring orders touching upon journalistic material, and emphasized the circumstances, in which neither the identity nor anything in the messages were provided on a confidential basis.

Vice was a 5-4 split, and it is noteworthy that Justice Abella was also in dissent in Vice, on this occasion writing for three other justices. Justice Abella observed that for 25 years the court has “flirted” with acknowledging that s. 2(b) of the Charter protects independent rights for the media (emphasis in original), rather than treating freedom of the press as merely an aspect of the broader right to freedom of expression. Though Justice Abella’s distinct constitutional recognition of “freedom of the press” was not adopted by the majority of the court in this instance, such recognition is likely not far off.

The JSPA creates a brighter future for serious investigative journalism in Canada by requiring both police and justices — those who issue authorizations as well as those reviewing them — to apply a new level of scrutiny to the true necessity of invading journalists’ confidences, and a new level of paramountcy to journalist/source protection except in cases of last resort.