Supreme Court ruling bolsters journalists’ authority to protect confidential sources

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The Supreme Court has set aside a lower court’s order requiring an investigative reporter to reveal her confidential sources in a ruling that bolsters journalists’ authority to protect the identities of their informants.

“Without whistleblowers and other anonymous sources, it would be very difficult for journalists to perform their important mission,” Chief Justice Richard Wagner wrote in an 8-1 ruling, stressing that court orders to force journalists to reveal their sources should be a last resort.

But the ruling was only a partial victory for Radio-Canada journalist Marie-Maude Denis. The majority sent her case back to the Court of Quebec for a fresh look, in light of new facts. The court also held out the possibility some reporters will be ordered to unmask their informants – for instance, when sources have knowingly provided false information.

Even so, a cheer went up when the news of the ruling broke at Enquête, a news magazine program hosted by Ms. Denis, who says the court’s view of source protection means a steep climb for anyone trying to force her and others to reveal an identity.

“For me, it’s a huge step forward for the protection of sources,” she said in an interview.

The case was the first test of a two-year-old federal law known as the Journalistic Sources Protection Act.

Ms. Denis did reports in 2012 and 2015 based on information from confidential sources relating to corruption allegations against Marc-Yvan Côté, a former Liberal cabinet minister and organizer charged in Quebec in 2016 with fraud, breach of trust and corruption.

Mr. Côté argued that senior members of a Quebec anti-corruption police unit leaked documents to Ms. Denis. He called this an abuse of process, and said the charges should be stayed to protect the justice system’s reputation. To make his case, he said, he needed to know who Ms. Denis’s sources were.

The Court of Quebec declined to order her to reveal her sources. But on appeal, the Quebec Superior Court said she must. The Quebec Court of Appeal said it had no jurisdiction to hear an appeal from Ms. Denis, so she went to the Supreme Court.

A complication arose when Quebec prosecutors revealed to the top court, under seal, new information about an investigation into the source of the leaks. The Supreme Court does not usually hear new facts; it hears arguments about facts established in a lower court. The court said the new facts may make it harder for Mr. Côté to say the information from Ms. Denis is necessary to his argument that the charges should be stayed. It voted to send the case back to the Court of Quebec to reconsider.

Justice Rosalie Abella was the sole judge to say the court order should be quashed for good.

The majority ruling set out the Supreme Court’s approach to the new law. It said the Charter of Rights and Freedoms’ protection of free speech is intended not only for speakers (in this case, the journalist) but for those who hear or read it. Still, in spite of a “presumption” that the new law protects reporter-source confidentiality, judges need to balance the advantages and disadvantages case by case, the majority said.

Justice Abella suggested the majority put too much emphasis on the notion of balance. “Far from requiring an even balancing of interests … the new [law] anticipates that absent exceptional circumstances, a presumption of protection for journalistic sources will prevail,” she wrote.

Oliver Desjardins, a lawyer for Mr. Côté, said the ruling sets out an interpretation of the new law accepted by all parties. “There is nothing new under the sun,” he said in an interview.

Senator Claude Carignan, whose affiliation is Conservative, and who sponsored the source protection law in the Senate, where it originated, called the ruling “fantastic,” adding in an interview, “now there’s high protection for journalistic sources.”

Iain MacKinnon, who represented a media coalition with intervenor status, including The Globe and Mail and Postmedia, said he was disappointed the court sent the case back to a lower court, but added that the interpretation of the law reinforces the importance of confidential sources.

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