The Supreme Court of Canada has observed that mobilizing a journalist against his or her source is incompatible with freedom of the press.
The Court observed that the freedom of the press criterion will quite often weigh against disclosure of the journalistic source's identity and therefore a journalist could be required to breach a confidentiality undertaking with a source only as a last resort.
Marie-Maude Denis, a journalist had appealed to the Supreme Court challenging the order of Superior Court directing her to disclose the journalistic source. While setting aside the order, the Supreme court interpreted the new statutory scheme for the protection of journalistic sources set out in s. 39.1 of the Canada Evidence Act, introduced vide Journalistic Sources Protection Act, S.C. 2017.
The court observed that an inadequate protection of sources could contribute to their drying up and thus their confidentiality must be protected in order to encourage their contributions and thereby favour the existence of strong and effective investigative journalism. It said:
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: National Post, at para. 28. This is why Parliament, fully aware of the possible consequences of disclosure orders both at the individual and the collective levels, clearly recognized by enacting the JSPA, and in particular by adding s. 39.1 to the CEA, that it was in the public interest to provide robust statutory protection to such confidential sources of information. It can in fact be said that without such protection, the public's very right to information would be jeopardized
The court further observed that, though the freedom of the press criterion will quite often weigh against disclosure of the journalistic source's identity, but it is possible that an applicant who seeks the disclosure of a journalistic source's identity will submit evidence capable of convincing the court that the source's purpose is contrary to the public interest. It said:
"One such situation might involve the communication of information the source knows to be deliberately false for the purpose of hindering the orderly progress of public business. In such a case, freedom of the press would in the end not have the same weight in the balancing exercise, because upholding that freedom would then be incompatible with the very interests it is intended to protect."
Summarizing the principles enunciated in Section 39, the court explained the procedure while considering an application seeking disclosure:
The person objecting to the disclosure must show that he or she is a "journalist" as defined in s. 39.1(1) CEA (or a former journalist to whom s. 39.1(3) CEA applies) and that the source is a "journalistic source" as defined in s. 39.1(1) CEA. The party seeking the disclosure of information or a document that identifies or is likely to identify a journalistic source must show that the disclosure is reasonably necessary, that is, that the information being sought (i.e. the source's identity) "cannot be produced in evidence by any other reasonable means": s. 39.1(7)(a) CEA. If this is not shown, the case is closed, and the application for disclosure will be dismissed. If the party seeking the disclosure of information meets the requirement of reasonable necessity set out in s. 39.1(7)(a) CEA, he or she must then convince the court, in accordance with s. 39.1(7)(b), that "the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source". This balancing exercise requires considering, on the one hand, the importance of the document or information being sought to a central issue in the proceeding and, on the other hand, the impact on freedom of the press and on the journalist and the source. To be successful, a party must convince the court that the document or information at issue is so important that this balancing exercise weighs in favour of disclosure.
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