The first test case on the protection of journalists’ confidential sources under a two-year-old federal law is to be decided Friday morning by the Supreme Court of Canada.
The case pits Marie-Maude Denis, an award-winning investigative journalist, and host of the Radio-Canada program Enquête, against Marc-Yvan Côté, a former Liberal cabinet minister who faces charges of fraud, breach of trust and corruption in Quebec.
Mr. Côté argues that he cannot receive a fair trial unless he uncovers who leaked police documents to Ms. Denis, which informed her reports in 2012 on alleged links between political donations and the awarding of government contracts. His lawyers say he hopes to show that the leaks were part of a vendetta against him, and should result in the charges being dismissed.
Ms. Denis says protecting confidential sources is “paramount” for journalists.
“It’s crucial to what we’re trying to achieve – to inform the general public about public interest subjects,” she said in an interview.
“In investigative journalism it’s particularly important because it’s sometimes very risky subjects with legal impacts. Without the documents [confidential sources] may feed us and without their willingness to help, we couldn’t do our jobs. It’s as simple as that.”
The Globe contacted a member of Mr. Côté’s legal team on Thursday, but no response was forthcoming.
The 2017 Journalistic Sources Protection Act passed with all-party support. It does not give absolute protection to confidentiality of sources, unlike source-protection shield laws in dozens of U.S. states. Instead, it allows journalists to protect their sources unless the information sought by another party in a court case cannot be obtained by any other reasonable means, and “the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source,” according to the Canadian justice department’s website.
In the Denis case, the Court of Quebec sided with the journalist. But Quebec Superior Court Justice Jean-François Émond overturned that decision, stressing the importance of the presumption of innocence, and saying that society’s interest in a fair trial for Mr. Côté outweighed the need to protect Ms. Denis’s source. The Quebec Court of Appeal said it didn’t have jurisdiction to hear an appeal, which then went directly to the Supreme Court.
In a 2010 case predating the Journalistic Sources Protection Act, the Supreme Court ruled that journalists should be forced to reveal their sources only when disclosure of sources’ identities is vital to the administration of justice, and when no other way to obtain the information exists. The case involved Globe and Mail reporter and author Daniel Leblanc, who had earlier been ordered to reveal his confidential source on the sponsorship scandal that contributed to an election loss by then-Prime minister Paul Martin in 2006.
In the Denis case, media lawyers argued in a court filing that only in “rare and exceptional circumstances” should journalists be ordered to reveal a source. They told the Supreme Court of a long list of stories that could not have been written without confidential sources – from Watergate and Abu Ghraib prisoner abuse to the sponsorship scandal and this year’s SNC-Lavalin affair.
“I think there’s a real risk that the whole purpose of the act could be gutted if the decision in the court below stands,” media lawyer Iain MacKinnon said in an interview. He represented a coalition that included The Globe and Mail, Postmedia, Global News, CTV, Vice Media Canada and the Media Lawyers Association.
“Freedom of expression generally will take a severe body blow if the Supreme Court doesn’t overturn the decision below, because of the possible chilling effect this could have,” he said.
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