OTTAWA, Sept. 30, 2019 — The Supreme Court of Canada (SCC) has set aside a court order which would have forced a Radio-Canada journalist to reveal confidential sources, and referred the case back to a lower court to hear arguments again.
This case was the first time the Journalistic Sources Protection Act (JSPA) has been tested in the courts since it was enacted in October 2017.
While the SCC did not rule decisively on the case, the written decision handed down on Friday showed the SCC was interpreting the JSPA in a way that offers more protection to journalists’ confidential sources.
“The decision recognized the important role media serves in preserving a free and democratic society, and the necessity of protecting confidential sources, which is very positive,” said Karyn Pugliese, president of the Canadian Association of Journalists (CAJ).
“We hope that the jurisprudence of the Supreme Court in its decision will guide the lower court in its next decision on this case and this matter can finally be closed,” Pugliese said.
The decision to set the case aside was made due to new facts put forward by the Crown which have cast doubt on whether or not the identity of Denis’ source(s) is actually needed in order to rule on Marc-Yvan Côté’s motion for a stay of proceedings.
Marie-Maude Denis, a Radio-Canada journalist who broke a story about government corruption in Quebec, was seeking to protect the source(s) who leaked her the information. Her work led to the establishment of the Charbonneau Commission to investigate corruption in public contracts, and fraud charges against several individuals.
One of these, Marc-Yvan Côté, former Quebec Liberal cabinet minister said he needed the identity of Denis’ source(s) because his ability to have a fair trial was being impacted. Quebec’s lower courts gave inconsistent decisions. The Court of Québec dismissed the motion to divulge the identity of the source. A Quebec Superior Court ordered Denis to reveal her source.
The court shifted the burden of proof onto the party seeking disclosure, saying they must show they require the information and cannot get it any other way. Shifting the burden of proof is the most important difference between the former common law and the way the court is interpreting the JSPA. If that burden is met, the court must then balance the public interest in the administration of justice against the public interest of journalism.
Marie-Maude Denis was the recipient of the CAJ Charles Bury Award in 2018. The award is given under circumstances of exceptional merit to those people or organizations that have made a significant contribution to Canadian journalism.
The Canadian Association of Journalists is a professional organization with more than 700 members across Canada. The CAJ’s primary roles are public-interest advocacy work and professional development for its members.
For more information contact:
Karyn Pugliese, CAJ president
Brent Jolly, CAJ vice-president