Denis v Côté : Dancing at the Margins of Independent Rights for Journalists
If Canada’s journalists were unable to uphold their promise to some sources that their identities were protected, many valuable stories with far-reaching implications could disintegrate, with no one to substantiate them. The essential relationship of trust between the press and the people informing them could be left hanging in the balance.
These concerns provided the backdrop for the Supreme Court of Canada’s (“SCC” or “the Court”) recent decision in Denis v Côté, 2019 SCC 44 [Côté], and its discussion of the recently enacted federal statutory scheme that heightens protections for journalistic sources, specifically s. 39.1(2) and s. 39.1(7) of the Canada Evidence Act, RSC 1985 c C-5 [CEA].
In 2017, the Journalistic Sources Protection Act amended the CEA to include s. 39.1, an additional protective provision concerning orders issued to journalists that would have them reveal the identities of confidential sources. Most significantly, the provision entirely shifts the burden of proof from the journalists to those seeking disclosure, transforming a presumption of disclosure into a presumption of non-disclosure. In the Court’s own words, the amendment indicated that Parliament was primarily concerned with “[affording] enhanced protection to the confidentiality of journalistic sources in the context of journalists’ relations with those sources” (Côté, para 28).
From a glance, the new statutory scheme may appear to be nothing more than a natural culmination of a series of cases exploring journalistic protection. However, viewed from the vantage point of the press and the proponents of its freedom — for whom the relationship with confidential sources is one inherently interwoven with trust and confidence — the change is nothing short of historic. And so, the strength of these heightened protections seemed to reflect in the general anticipation for and expectations of the Court’s decision in Côté. This case comment will explore why the case was the Court’s chance to interpret the statutory scheme in a way that tightens limitations on journalistic integrity and how the Court did not take that chance, still dancing at the margins.
From 2012 to 2016, journalist Marie-Maude Denis gave four reports on her Radio-Canada program Enquête, each containing information gleaned from confidential sources. The reports revealed sensitive information about a possible network of corruption involving former Quebec Liberal minister Marc-Yvan Côté. In 2016, Mr. Côté and several co-accused were arrested and charged with fraud, breach of trust and bribery of officers — just a few in a series of offences — in connection with an alleged system of secret political financing in Quebec (Côté, para 6).
Mr. Côté attempted to have the proceedings stayed on the grounds that the leaks of confidential information were by high-ranking government officials seeking to prejudice him and his co-accused. He stated that the government was aimed at hurting his case, specifically by denying him the right to a fair trial and using the media’s “de facto conviction” to deprive him of the presumption of innocence (Côté, para 9). Côté argued that knowing the identity of the confidential sources would reveal this prejudice, thereby justifying a stay.
Mr. Côté issued Ms. Denis and Louis Lacroix, another journalist who published similar information stemming from the leaks, with subpoenas — orders to disclose information — to reveal these sources. The order to Mr. Lacroix was quashed because he did not know the identities of his sources. Ms. Denis, on the other hand, refused and contested the subpoena in court (Côté, para 11).
Statutory Framework and Procedural History
Under s. 39.1(2) of the CEA, journalists can object to the disclosure of information or the production of documents that could reveal the identities of confidential sources. In order the authorize an objecting journalist to reveal their sources, the court must first consider the threshold requirement — that the person objecting disclosure meets the provision’s definition of “journalist” and the source in question meets the definition of a “journalistic source.”
Then, under the s. 39.1(7) test — a strengthened and heightened version of the common law scheme that existed prior — the court will place the onus on the party seeking disclosure (Mr. Côté, in this case) to meet the necessary criteria. They must show that the information cannot be found in another way, that the interest in protecting the identity of the sources is outweighed by “the public interest in the administration of justice,” which includes considerations of its importance to the central issue in the proceeding, freedom of the press, and the impact that disclosure would have on the source and the journalist.
At the Court of Quebec, Judge Perreault found that Ms. Denis was a “journalist” and the information in her reports was from a “journalistic source,” thereby passing the threshold requirement. Judge Perreault concluded that the information that Mr. Côté was seeking was not central to the issue of the proceeding, which was the stay proceeding rather than the criminal trial. Therefore, the interest in protecting the sources’ identities outweighed the public interest in the administration of justice because. He concluded that Ms. Denis did not have to reveal her sources because she did not know them (Côté, para 18).
The Superior Court agreed that the application judge, in stating that Ms. Denis did not know any of her sources, had made an error of fact because she knew the identities of some. In repeating the application of the test under s. 39.1(7), Justice Émond disagreed with the application judge in finding that the information was not important to the central issue of the proceeding. He therefore authorized that Ms. Denis’s sources be disclosed (Côté, para 20).
On appeal, the Quebec Court of Appeal interpreted s. 39.1(10) to say that Ms. Denis had no right of appeal beyond the first ruling on the original application, which Ms. Denis had already exercised at the Superior Court. It concluded that it did not have jurisdiction to hear the appeal, but that she could apply for leave to appeal at the Supreme Court, which she did (Côté, para 22).
The Majority Judgement
For many, the Court’s decision in Denis v Côté was an “opportunity to give the law real teeth.” With Parliament already having boldly exercised moved towards protecting journalistic integrity with the new statutory scheme, Côté left the door open to the Court to test the scheme in Court and give real credence to its underlying purpose, And although it did provide some guidelines on how to consider the criteria under the new scheme, and clearly recognized the purpose behind these protections, it seemed to fall far short of momentous and left key questions unexplored.
Instead of deciding whether Ms. Denis should have to reveal her confidential sources, the Court found that the case should be remanded to the court of original jurisdiction, meaning that the Court of Quebec should consider the issue once again. Due to new evidence being sent from the Crown to the Court in a sealed envelope, which significantly shifted the “factual matrix” (Côté, para 23) upon which the case rests, the Court found this restoration of the case to be most fair.
The Court walked through each consideration under the statutory test, providing some interpretive guidelines for its application to this case and for future instances. At the first stage, where the party seeking disclosure must show that the information is of “reasonable necessity” — that it can’t be produced in any other reasonable way. This requirement, the Court states, ensures that a journalist’s disclosure of a confidential source is “only as a last resort” (Côté, para 40).
The heart of the test is in the balancing stage. Going through the three non-conclusive factors under this exercise, the Court provides some clarity. Considering whether the importance of the information to a central issue in the proceeding should be done in stages, first exploring proximity to a central issue (not the central issue) before placing the information on a scale of importance (Côté, para 44).
The interpretation of the freedom of the press in relation to the test is the area with public interest considerations, touching on the broader landscape of journalistic freedoms and their connection to a democratic society. The Court clearly reiterates the Parliamentary intent behind the statutory change and reinforces its gravity — that it is “in the public interest to provide robust statutory protection to such confidential sources” (Côté, para 47).
However, the Court says markedly little about recognizing independent rights for Canadian media and granting the provision any more substance than already exists, especially against the backdrop of past decisions in the area, as discussed in more detail below. It also did not say what additional criteria could be considered in this balancing.
Chief Justice Wagner writes, “it is not unreasonable to consider that an inadequate protection of sources could contribute to their drying up. Their confidentiality must be protected in order to encourage their contributions and thereby favour the existence of strong and effective investigative journalism” (para 35). This strong stance — a clear statement on the overarching reasons behind strengthened protections for journalistic sources — seemed to hint at a more conclusive victory not only for Ms. Denis, but a more conclusive precedent for future applications of s. 39.1 of the CEA.
The Slow Walk Towards Journalistic Protections
An understanding of the prior common law development of journalistic protections sheds greater clarity on the Court’s judgement in Côté. The common law scheme for protecting confidential sources was built through a series of cases, namely R v National Post, 2010 SCC 16 [National Post], Globe and Mail v Canada, 2010 SCC 41 [Globe and Mail], and, most recently, R v Vice Media, 2018 SCC 53 [Vice Media].
In the common law test laid out by the Court in National Post and Globe and Mail, the burden was on the journalist to meet four criteria: (i) that the communication originated with the trust that the identity of the source would not be revealed, (ii) that this confidence was essential to the journalist’s relationship with the source, (iii) that the relationship was “sedulously fostered” in the public good, and, (iv) if the previous three were met, that protecting the source’s identity better serves the public interest than revealing it.
Although the considerations themselves appear quite similar to the new statutory scheme, the burden of proof being entirely on the journalist was a significant message by the Court — that it recognized the ambiguities of press freedoms and appreciated the central purpose of protecting journalistic sources, but that it was not yet ready to go the mile. To place the onus on the journalist, rather than the party seeking disclosure, weighed presumptively in favour of disclosure and, in turn, presumptively in favour of deterring confidential sources from coming forward with any manner of significant information. The odds were stacked against investigative journalism.
In Vice Media, the Court considered an order for a journalist to provide confidential police conversations with a person who confessed to belonging to a terrorist group. Although the decision, which was split 5-4, did not turn on the issue of disclosing the identity of confidential sources per se, Justice Abella’s dissent offers a precursor to what the majority decision in Côté could have been and what her own dissent in Côté alludes to. There, she questions why the Court cannot “openly acknowledge that freedom of the press is not a derivative right?” (Vice Media, para 123). She argues that the Court’s increased protection of confidential sources is indicative of a necessary constitutional protection of journalistic standards, particularly those closer to the core of “professional journalistic ethics” (para 130).
This same bold perspective is paralleled in her dissent in Côté, where Abella states that regardless of the shift in the factual matrix of the case, she would still set aside the disclosure authorization, quashing the subpoena, due to the “fundamental legal errors in the interpretation and application of the legislation” on the part of the Superior Court judge, specifically by placing undue burden on the journalist “to demonstrate why she should not be forced to reveal her sources” (Côté, para 72-73).
To understand this more clearly, the reasoning of the Superior Court decision warrants a closer look. In balancing the public interest of the sources and that of the public for the administration of justice, Justice Émond seemed to place considerable weight on Ms. Denis and that she and Mr. Lacroix “are not concerned about the consequences of a disclosure on their sources themselves, the ones the legislator seeks to protect [translation]” (Denis v Côté, 2018 QCCS 1138) This does not seem farfetched on Justice Abella’s part — the reasoning in the Superior Court decision in balancing the central elements of the test leans heavily on how Ms. Denis appears and how she influences the considerations, while the CEA provision clearly establishes a presumption in favour of the journalist.
It would also be unsurprising if part of the anticipation for this case came from the current cultural landscape. It is a landscape increasingly marred by threats to journalistic freedoms and yet, one that relies on the invaluable information gleaned from confidential sources more than ever. The stories that have shaped our collective consciousness in the past decade or so — the first break of the SNC-Lavalin story, the first Harvey Weinstein allegations, and the anonymous source behind the Panama Papers leak — have depended on the trust between journalists and confidential sources.
A decision that mirrored the conclusiveness of Justice Abella’s dissent would have seemed fitting in two major respects — in light of expectations that the case would take the opportunity to make a strong case for journalistic freedoms in a cultural landscape increasingly marred by threats to the same and, secondly, in light of Parliament’s own seemingly strong conviction towards protecting these freedoms through the enactment of s. 39.1 in the first place.
We will likely continue to see the protective provision being tested by courts in the years to come. The Court refrained from stating the kinds of additional criteria that could be considered in the balancing exercise or clarifying the inevitable ambiguities that will arise in defining a “journalist” or a “journalistic source” for the purposes of the Act. These are both issues that will likely return for further clarification. In the meantime, this is a victory for journalists, though not the broad victory expected.