Reporters’ sources safe — for now
In ‘exceptional remedy,’ case sent back to lower court for second look
OTTAWA— The Supreme Court of Canada has set aside an order that would have forced a journalist to reveal her confidential sources and has ordered the case back to a lower court for a second look.
For now, at least, Radio-Canada reporter Marie-Maude Denis will be able to keep secret the identities of people who gave her information about Marc-Yvan Côté, a former provincial Liberal minister in Quebec charged in 2016 with fraud, breach of trust and bribery.
Arguing that the leaks constituted state interference in his case that would justify staying the charges against him, Côté demanded to know who Denis’ sources were.
Though the Supreme Court set aside the disclosure order issued by the Superior Court of Quebec, it refused to rule on the merits of that order, instead saying new facts in the case require that the process be restarted in a lower court.
The high court acknowledged that sending the case back for reconsideration was an “exceptional remedy” in an exceptional situation.
The majority on the Supreme Court also reaffirmed that under new laws, journalists should be forced to reveal their sources only as a last resort.
In a conference call Friday, Denis said she was heartened by the decision, which she called a “huge step forward” and a victory for press freedom in Canada.
“We’re very confident that this is the end of the story as far as I’m concerned,” she said, speaking in French.
This was the first time the court had looked at those new rules, created in 2017 through the federal Journalistic Sources Protection Act. Though it did not rule on the merits of the Denis case, it took the opportunity to explain how it viewed the new legislation.
Writing for the majority, Chief Justice Richard Wagner highlighted the role of the media in contributing to “the existence and maintenance of a free and democratic society” and of the necessity of protecting confidential sources, as far as the law extends.
“It can be said that without such protection, the public’s very right to information would be jeopardized,” Wagner wrote.
Justice Rosalie Abella dissented from the majority opinion in that she would not have sent the issue back to the lower court, saying the legal issues were clear regardless of the change in facts.
“The new scheme anticipates that absent exceptional circumstances, a presumption of protection for journalistic sources will prevail,” Abella wrote.
The case came before the court when Côté sought to force Denis to reveal her sources, whom Côté described as senior government officials.
Based on that claim, Côté argued his trial had been tainted by inappropriate state influence and argued it should be suspended.
The lower court dismissed the request to force Denis to disclose her sources, but on appeal, the Superior Court sided with Côté. Denis appealed to Quebec Court of Appeal, which rejected her appeal on jurisdictional grounds, before she appealed to the Supreme Court. The reason for not ruling decisively on the case, the majority on the top court wrote Friday, was that the Crown had changed its arguments on the necessity of having Denis reveal her sources.
The Crown had originally argued Denis’ sources were likely low-level officials whose actions could not constitute state interference. But with the case already before the Supreme Court, the Crown submitted new information implying there might be new ways of getting that information. This shift was a result of the ongoing investigation into Côté’s case.
The change of position “precludes” a review on the merits of the Superior Court’s decision, Wagner wrote.
Denis said her sense was her sources would no longer be necessary because the new debate in the Court of Quebec would now centre on the new information obtained by the Crown.
In the written opinion, Wagner also noted the Crown should look to speed communication of the results of the investigation because of the need to justify delays beyond the deadlines for trials the court set in 2016.