By Lisa Taylor, Brian MacLeod Rogers and Ryder Gilliland
Canada has a new law that offers significantly enhanced protections to reporters’ confidential sources and recognizes the societal value in protecting the journalist-source relationship.
It’s hard to overstate the importance of the Journalistic Source Protection Act, which became law on Thursday, Oct. 19 after being approved unanimously by both the House of Commons and the Senate. This Act amends both the Criminal Code and the Canada Evidence Act in favour of giving considerably more weight to a journalist’s promise of confidentiality to a source.
“I think this this bill goes a very long way in protecting confidential sources,” media lawyer Iris Fischer said of the bill in an episode of the Ryerson Review of Journalism’s “Pull Quotes” podcast. “This issue of sources has been a big one (for journalism) and it’s great to see that being addressed.”
Until this change, if authorities asked a journalist to identify a confidential source, it was up to the journalist to convince a court that their source was worthy of protection. In such a situation, the court would decide whether or not to shield the source’s identity based on a complex balancing act known as the Wigmore Test. With the new law, however, the burden shifts — it’s now up to the authorities who are seeking the information to make the case that the source’s identity should be revealed. And that argument will succeed only if police are able to show that:
- The information 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, with regard to the importance of the information to a central issue, freedom of the press and the impact of disclosure on the source and journalist.
It’s not just that the burden of proof rests with the police — it’s also a question of who will decide whether the police have successfully made out the case.
In the past, most applications for warrants or production orders to obtain information from journalists were made before a justice of the peace. Now, however, such an application will be made only to superior court judge, a move Fischer says highlights that a search warrant against the media is an “exceptional order.”
“It’s an exceptional warrant, and it really requires a judge of the superior court to make that determination,” she said.
Other protections have now been built into the warrant application process. The journalist who may be faced with a warrant or production order need not personally appear to oppose the warrant. Instead, to ensure that arguments in favour of press freedom are given due weight, the judge can appoint a “special advocate” to help decide the warrant issue.
If police are successful in obtaining the warrant, the journalist is then given 10 days to argue that the information should not be disclosed because it identifies a journalistic source. Finally, even in cases where police are able to convince a judge to issue a warrant, the judge may impose conditions to protect the identity of the source.
Of course, no law is perfect. Perhaps the strongest criticism of the Journalists’ Source Protection Act rests with how it defines a journalist. To qualify for protection under the new law as a “journalist,” a person must do journalism as their “main occupation” (rather than as a sideline, like a chef who writes a weekly food column). They must also receive some form of payment for producing information for “dissemination by the media.” (The latter reference is generally regarded as referring to mainstream news media, as opposed to a solo blogger.)
While this idea will become clearer through judicial interpretation over the coming months and years, freelancers and others who maintain a side hustle (or two, or three) to pay the rent may fall outside the law’s protection. But those tasked with drafting the new law were apparently concerned that, if they defined “journalist” too broadly, a shady organization would be able to use the law to protect its work from police scrutiny.
The law will undoubtedly make it easier for investigative journalists to do their work, but protecting journalists is not its primary purpose. Ultimately, it is the confidential source who is protected here. Senator Claude Carignan, the Conservative senator who proposed the private member’s bill in October, 2016, says the new law will allow whistleblowers more confidence when they take the risk of revealing vital information about matters of public interest.
“It’s … sending a message to the population that they will be protected if they ask for the protection from the journalist,” Carignan said on the “Pull Quotes” podcast. “It will probably help the media to receive more information to keep the government and public authorities (accountable).”
So in the end, maybe the biggest winner is the ordinary Canadian, who gets an assist toward the goal of informed citizenship.
Prof. Lisa Taylor teaches media law and ethics in the School of Journalism, Ryerson University. Media lawyers Brian MacLeod Rogers and Ryder Gilliland are adjunct professors at Ryerson.