Denis v Côté: Balancing Journalism and Justice

P Gutowski - law student

Jan 20, 2020

5 min read

Updated: Oct 26

Author: P Gutowski

Around the world, journalists face a daily uphill battle. The occupation has historically been fraught with the dangers associated with investigating powerful people. In recent years, we have become inundated with stories exposing various abuses faced by men and women seeking to expose truth to the public. Certain leaders and governments continue to violently silence their critics. Approximately 870 have been murdered since 1992 including famous examples such as Jamal Khassoggi and Daphne Caruana Galizia.[1] Disturbingly, the American president has spent the last few years accusing the free press of being the “Enemy of the People”.

People disagree on what information is deemed to be appropriate for public consumption. We all can agree, however, that access to information strengthens the decision-making abilities of the body politic. This information is shared with the public through journalists who serve as investigators, curators and communicators. Canadian journalism plays an essential role in the maintenance of a healthy democratic society. Journalists bring scandals, crime, corruption and other stories to the public’s attention, creating a society of well-informed citizens. Knowledge of crimes committed by government officials or businesses are often only unveiled because journalists receive information from confidential sources or whistleblowers too afraid to provide this information publicly. Therefore, building trust and protections for sources of information is decidedly beneficial to all Canadians and journalists acting responsibly should be protected.

Legislative History

In 2017, Parliament passed the Journalistic Sources Protection Act (JSPA) which amended the Canada Evidence Act (CEA) and the Criminal Code.[2] This new legislation was designed to change how journalistic sources are treated by law enforcement and in court proceedings. When applying the previous common law criteria, journalists bore the burden of proof for convincing the court that preserving the confidentiality of their source is more important to the public interest than revealing it.

This legislation provides a set of criteria for how a journalist’s sources, activities and data should be protected in the administration of criminal law. An application for a warrant which relates to a journalist’s communications, objects, documents, or data must be brought to a judge with jurisdiction under this Act. The judge must be convinced that there is no other way to reasonably obtain this information, and that the public interest in using this information for the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.

Likewise, journalists are given the ability to object to the disclosure of such information to a court. The courts must follow the same guidelines as involved in granting warrants. The key difference now is that the burden of proof falls on whoever wants this information disclosed. Denis v Côté is the first case to involve these new guidelines.[3]

Case Facts

Marc-Yvan Côté was a former Quebec National Assembly Cabinet Minister. From 1994 to 2005, he was vice-president of Roche Ltd., Consulting Group.[4] He was arrested and charged for acts of fraud, breach of trust and bribery taking place between 2000 and 2012. The allegation against him involves establishing a secret political financing scheme in Quebec. Marie-Maude Denis was a journalist who published reports about these alleged crimes. She obtained information from confidential sources. Mr. Côté claimed that the source of the leaks to journalists, including Ms. Denis, were high-ranking government officials. He argued that this was done tactically on behalf of the government to use “the media to ensure his de facto conviction”.[5[ This, according to Mr. Côté, amounts to an abuse of process that should result in a stay of proceedings. He argued that facing trial after being the subject of these leaks from Quebec’s anticorruption agency would undermine the integrity of the Canadian justice system.

Supreme Court of Canada Judgement

The majority of the Supreme Court of Canada ultimately sent this case back to the Court of Quebec due to new evidence coming to light. Despite that, it provided a definition of the scope of s. 39.1. of the Canada Evidence Act as well as guidance for its application.

The majority mentions that the CEA appears to limit who can claim to be a journalist. Parties claiming the privilege against disclosure will have to prove they meet the threshold for being considered a journalist as per the definition. It declined to answer whether people outside this definition may still adopt the common law scheme. Next, the majority stated that the party seeking disclosure must satisfy the threshold requirement of proving there is no other way to attain the desired information. If these criteria are met, a balancing exercise must be done where courts must consider factors such as “the importance of the information (…) to a central issue in the proceeding”, “freedom of the press” and “the impact of disclosure on the journalistic source and the journalist”.[6] The majority states that other relevant factors may be considered when performing this balancing exercise. This exercise is not

performed on the facts of this case, however.

The sole dissenting voice, Justice Abella, argued that the subpoena should be quashed instead of being sent back to its originating court. This is based on the view that the JSPA was of unique historical significance and that Parliament’s intention for the Act should be emphasized in its application. The Act passed with unanimous support in the House of Commons, indicating an unquestioned level of support in these changes. Therefore, the courts should not only interpret this law as shifting the burden to the party attempting to reveal a journalist’s source, but “that absent exceptional circumstances, a presumption of protection for journalistic sources will prevail.”[7] Effectively, Justice Abella is arguing that Parliament expects courts to consider freedom of the press and confidentiality of journalistic sources to be of utmost importance to the public interest aside from extreme exceptions.

Analysis

Denis v. Côté sends a message to all the lower courts. The new rules for authorizing the disclosure of a journalistic source has similarities to the common law scheme but must be approached in a fundamentally different manner. The preeminent concern of legislators was the protection of journalists and their sources. Moving forward, courts are expected to place an added value to freedom of the press and place the burden of proving the need to reveal confidential journalistic sources on those requesting it.

The majority did warn that courts should not ignore that a journalist may have dishonest or negative motivations, that may be contrary to the public interest. The courts are reminded that journalists have this privilege but in return they owe a duty to the public. Journalists must act ethically and be constructive when participating in public debate. The public expects journalists to act responsibly by speaking truthfully and stamping out misinformation. The protections being afforded are not meant to benefit journalists as individuals, but rather society as whole. The JSPA denies this privilege to journalists that are being criminally investigated themselves.

This decision by the Supreme Court of Canada is one that discusses important Canadian values. In the administration of criminal law, courts are expected to honour the Canadian Charter of Rights and Freedoms freedom of expression, with specific emphasis on the expression of journalists who play a unique and indispensable role in public life.[8] Courts are now being asked to continue trying to balance the need to find information and protect sources, considering the ramifications of Parliament’s clearly message that protecting freedom of the press is in the public interest.

Image Description: A journalist captures the intensity of a protest demanding accountability and truth, with demonstrators holding signs that advocate for justice and free press.

Endnotes:

[1] Margaret Sullivan, ”When a crusading Maltese journalist was murdered, her sons vowed justice. Almost miraculously, it’s happening.”, The Washington Post (Dec 2, 2019), online: <www.washingtonpost.com> [https://perma.cc/FAX6-5BGR].