(Co-written with Andrea Gonsalves)
Welcome to the club, Canada. On October 18, 2017, we joined the ranks of nearly every other Western democracy when Bill S-231 – the Journalistic Sources Protection Act (“JSPA”) – was finally passed into law, codifying a set of important protections for journalists and their sources.
Before the JSPA, the ability to compel information or documents from journalists had been limited mainly by a patchwork of common law doctrines. The JSPA marks a significant change in the legal landscape, and has been rightly celebrated as a victory for free expression in general and journalism in particular. This post will aim to highlight four key reasons why this is so. At the same time, it is important to understand some of the limitations and potential drawbacks of the JSPA, as it is far from a panacea when it comes to the protection of journalistic sources.
#1. Broad scope of protection
Defining who is a “journalist” is always a thorny issue. The JSPA adopts a generous approach, which is entirely appropriate given the objective of protecting news gathering and dissemination.
Under the JSPA, a “journalist” includes any person (including a corporation) whose “main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person.” (It also includes former journalists who met this definition at the time they received information from a source.) Although this definition would exclude the hobbyist blogger who writes for free or has another main source of income, it would include freelancers, career bloggers, those engaged in news ‘start ups’ and others who fall outside the sphere of traditional media establishments.
The definition of “journalistic source” in the JSPA is also broad: “a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source.” This formulation maintains the key Wigmore criteria for journalist-source privilege recognized by the Supreme Court in R. v. National Post. But it dispenses with the cumbersome and potentially problematic requirement that the journalist-source relationship “must be one which should be sedulously fostered in the public good.”
#2. Significant safeguards for confidential sources (Canada Evidence Act)
The JSPA establishes different tests for orders made under the Criminal Code (e.g. search warrants, production orders and wiretaps), and for compelled disclosure made outside of the Criminal Code and in the context of civil and other proceedings governed by the Canada Evidence Act (e.g. matters in respect of which Parliament has jurisdiction).
(Civil and other proceedings that are governed by provincial law fall under the purview of provincial evidence legislation, not the Canada Evidence Act, and therefore would be outside the scope of the JSPA.)
With respect to compelled disclosure by means outside the Criminal Code, the key safeguard in the JSPA is that it amends the Canada Evidence Act so as to allow journalists to “object to the disclosure of information or a document before a court, person or body with the authority to compel the disclosure of information on the grounds that the information or document identifies or is likely to identify a journalistic source.” The reference to “court, person or body” is broad enough to include not only judicial proceedings, but also proceedings before federal boards, commissions and other administrative agencies or tribunals.
Once the disclosure or likely disclosure of a journalistic source is established, then the burden shifts to the party requesting disclosure of the information or document to prove that:
- the information or document cannot be produced in evidence 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, having regard to (i) the importance of the information or document to a central issue in the proceeding, (ii) freedom of the press, and (iii) the impact of the disclosure on the journalistic source and the journalist.
The JSPA’s framework mirrors, in large part, the Supreme Court’s common law framework for handling disclosure in the civil discovery process – with one notable exception. Once it is shown that the identity of a journalistic source is likely to be revealed through disclosure, the requesting party bears the onus of proving that the public interest favours such disclosure. This is a major role reversal from the Wigmore case-by-case privilege approach, where the burden was borne throughout by the party seeking to avoid disclosure.
Unfortunately, the JSPA’s amendments to the Canada Evidence Act are limited to those cases involving journalistic – that is, confidential – sources. Unless such a journalistic source is involved, the statute affords no protection against compelled disclosure that may intrude into the privacy of a journalist’s work product, disrupt the ability of a media organization to operate effectively, or use a journalist’s records as evidence in regulatory or administrative proceedings against a source. In all of these situations, a journalist could still presumably rely on common law protections, but would find no additional recourse in the JSPA.
#3. Significant safeguards for all sources (Criminal Code)
When it comes to warrants, wiretaps or production orders under the Criminal Code that target journalists, the JSPA protections extend beyond confidential journalistic sources. Regardless of whether or not it engages the identity of journalistic sources, any order “relating to a journalist’s communications or an object, document or data relating to or in the possession of a journalist” may only be issued if:
- there is no other way by which the information can reasonably be obtained; and
- the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.
The fact that the state must meet these requirements before an order will be made – even if the material in question involves non-confidential sources or no sources at all – is an important development. Under the previous common law analysis (established in the Lessard case), courts were often quick to equate an absence of information or documents revealing confidential sources with the lack of any harm to the media’s interests, and to uphold orders targeting journalists on that basis without further analysis. The JSPA imposes a more stringent approach in these situations.
Part of that approach requires courts to take account of “the journalist’s right to privacy in gathering and disseminating information.” The notion that journalists should enjoy a zone of privacy with respect to their work product (e.g. notes, recordings, interviews, contact books) was discussed by Justice La Forest in his concurring opinion in Canadian Broadcasting Corp. v. Lessard, but has received scant judicial attention since then. If taken seriously, the concept of a journalist’s right to privacy could serve as an important and effective safeguard against state intrusion into a journalist’s files – both in cases where journalistic sources are involved, and in cases where there are no confidential sources but where privacy is essential to journalistic expression. This could be achieved by focusing the inquiry on the concrete question of whether the material sought falls within a journalist’s work product, rather than the more difficult question of whether disclosing the material would cause a chilling effect on potential sources of news coming forward.
That being said, the fact that a “journalist’s right to privacy” is the only factor expressly listed on the journalist’s side of the balancing scale may prove to be problematic. (Recall that under the Canada Evidence Act amendments, the weighing exercise considers the more malleable factors of “freedom of the press” and “the impact of the disclosure on the journalistic source and the journalist”). On its face, it could be argued that the Criminal Code would allow orders to be made without any consideration of their chilling effect on potential sources – a somewhat absurd result, given that this chilling effect has long been recognized as the primary consideration for whether and on what terms an order should be made against journalists. This issue may ultimately prove to be academic if courts take a robust view of the need to protect a journalist’s right to privacy; indeed, it is difficult to imagine how an order that gives rise to a chilling effect would not also involve some aspect of a journalist’s work product.
#4. A better process
A frequent complaint of media lawyers in the pre-JSPA era was that applications for search warrants or production orders targeting journalists could be made by law enforcement on an ex parte basis (i.e. without notice to the media), before a justice of the peace who might not have any legal training. Not surprisingly, search warrants or production orders were granted almost without exception under that regime. By the time the media received notice and the matter was before a judge, the deck was already stacked in favour of law enforcement due to a highly deferential standard of review: the initial order could only be overturned if the reviewing court was convinced that the order was not one the justice of the peace “could have” made.
The JSPA puts in place a far better process. Warrants, wiretaps and production orders now may be issued only by superior court judges. And although they may still be made ex parte, the JSPA gives judges the discretion to appoint a special advocate to “present observations in the interests of freedom of the press” before making any such orders. If an order has been made, the documents obtained pursuant to the order are kept sealed in the court pending further authorisation from the judge. The journalist or media target is entitled to apply for an order that the documents not be disclosed to the law enforcement officer. The judge hearing the application must then consider the requirements for disclosure afresh, rather than on the deferential “could have” standard.
In the case of compelled disclosure by means outside of the Criminal Code, the JSPA requires that “[b]efore determining the question [of disclosure], the court, person or body must give the parties and interested persons a reasonable opportunity to present observations.” Where disclosure is authorized and a journalist wishes to appeal, the JSPA establishes clear appeal routes.
While the JSPA may not be perfect, it does afford important substantive and procedural protections for journalists over and above the common law. As with any legislation, however, the ultimate test of the JSPA’s impact and effectiveness must await judicial interpretation. At least on paper, Canada has given journalists some potentially strong tools with which to safeguard their work and their sources. Whether and to what extent that promise is achieved will be decided by the courts.
 For orders sought by law enforcement under the Criminal Code, those common law protections are set out in cases like Canadian Broadcasting Corp. v. Lessard,  3 SCR 42 and R. v. National Post,  1 SCR 477. For compelled disclosure in the civil discovery context, the common law framework was established in Globe and Mail v. Canada (Attorney General),  2 SCR 592.
 Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(1); Criminal Code, RSC 1985, c. C-46, s. 488.01(1).
 Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(3).
 Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(1).
 2010 SCC 16. Those well-established criteria are: (1) The communications must originate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relationship must be one that, in the opinion of the community, ought to be sedulously fostered; and (4) the injury to the relationship that disclosure of the communications would cause must be greater than the benefit gained for the correct disposal of the litigation.
 Ibid. at para. 53. Some courts had questioned whether the analysis of this criterion should take place at a general level (e.g. relationship between professional journalists and their sources generally), or at a more granular level (e.g. relationship between a particular journalist and a particular source, in certain circumstances, for certain reasons): see 1654776 Ontario Limited v. Stewart, 2013 ONCA 184 at paras. 84-96.
 The statutory text lacks clarity and there is certainly room for an argument that Canada Evidence Act protections should apply in the context of orders made under the Criminal Code as well. After all, a court issuing a warrant, production order or wiretap is a “court, person or body with the authority to compel the disclosure of information”: see Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(2). However, considering the different regimes established in the JSPA to assert and assess the effect of journalistic sources on a disclosure order in the Criminal Code versus the Canada Evidence Act, the better interpretation is likely that they are distinct regimes that do not overlap.
 Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(2). Courts, persons or bodies may also raise the issue of journalistic sources on their own initiative: s. 39.1(4).
 Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(7).
 Globe and Mail v. Canada (Attorney General),  2 SCR 592 at paras. 58-64.
 Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(9).
 Ibid. at para. 65.
 Criminal Code, RSC 1985, c. C-46, ss. 488.01(3) and 488.02(5).
 Supra, note 2.
  3 SCR 42
 Criminal Code, RSC 1985, c. C-46, s. 488.01(2).
 Criminal Code, RSC 1985, c. C-46, s. 488.01(4). The authors of this post published an article in 2016 arguing in favour of a special advocate regime in circumstances where it would be impractical to give prior notice to the media. See: Safayeni and Gonsalves, “The role of media in our democracy deserves special protection,” Op-Ed, The Global and Mail, 8 November 2016.
 Criminal Code, RSC 1985, c. C-46, s. 488.02(1)
 Criminal Code, RSC 1985, c. C-46, s. 488.02(3). On its face, this provision inexplicably limits a journalist’s right to apply for an order that the document not be disclosed by stating that it must be “on the grounds that the document identifies or is likely to identify a journalistic source.” This makes no sense since the protections afforded under the Criminal Code do not turn on whether a document identifies or is likely to identify a journalistic source: see ss. 488.01(3) and 488.02(5). Reading the statute contextually and purposively, the only sensible interpretation is that a journalist’s right to apply for a non-disclosure order is not limited to situations where the order identifies or is likely to identify a journalistic source.
 Criminal Code, RSC 1985, c. C-46, s. 488.02(5).
 Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(6).
 Canada Evidence Act, RSC 1985, c. C-5, s. 39.1(10).