A victory for journalists (and everyone) at the Supreme Court

September 27, 2019

Cara Zwibel


Director of Fundamental Freedoms Program
czwibel@ccla.org

 

If you care about press freedom and the vital role of the media in exposing injustice, you’ll want to celebrate this win with us!

In a landmark decision issued this morning, the Supreme Court of Canada has affirmed the vital importance of protecting confidential journalistic sources. The Court has recognized that, in light of legislation passed by Parliament, the protection of a journalist’s confidential sources has become the rule, rather than the exception. Without this protection, whistleblowers exposing corruption in government might never be willing to come forward and our democracy would suffer. 

Denis v. Cote is the first Supreme Court case interpreting provisions of Canada’s Journalistic Sources Protection Act (JSPA), which became law in 2017 after being unanimously adopted by the House of Commons. The JSPA was a response to shocking revelations that surfaced in 2016 that police in Quebec had been surveilling journalists for years. 

CCLA intervened in the case to assist the Supreme Court in interpreting the new statute. Our goal was to ensure that the law was interpreted in a manner that furthers freedom of the press – something that cannot be done unless journalists have adequate protection for confidential sources. 

We argued that the JSPA clearly marked a fundamental shift from the common law approach to the protection of sources, which had required journalists to bear a significant burden in demonstrating to the Court that the public interest required keeping the source confidential. Under the new law, the burden is reversed and there is a strong presumption in favour of preserving confidentiality. The party seeking disclosure of the source has to demonstrate that disclosure is necessary, and that the public interest in the administration of justice favours disclosure. We also urged the Court to recognize that in the rare instances when disclosure is ordered, conditions should be attached to such an order to ensure that it minimally impairs Charter protected rights.

The Supreme Court decision confirms the essential role of the media in Canadian democracy, stating: 

There is no doubt that the role of the media in our country is unique. By investigating, questioning, criticizing and publishing important information, the media contribute to the existence and maintenance of a free and democratic society…

…it is easy to understand why mobilizing a journalist against his or her source is incompatible with freedom of the press. WIthout whistleblowers and other anonymous sources, it would be very difficult for journalists to perform their important mission. As this Court has rightly pointed out, many important controversies have been unearthed only with the help of sources who would not agree to speak other than on condition of confidentiality. (paras 45, 47)

These statements by the Court, paired with its clear understanding of the importance of the changes wrought by the JSPA, will be an important tool in ensuring robust protection for journalism and freedom of the press. CCLA is grateful to Prof. Jamie Cameron of Osgoode Hall Law School and Chris Bredt, Pierre Gemson and Veronica Sjolin of BLG who represented the CCLA pro bono before the Supreme Court.

A link to the CCLA’s factum in the case is here.

A link to the SCC’s decision is here