Civil Litigation

Senate passes bill to protect journalists’ sources

By Mia Clarke, Associate Editor

Fredericton litigator Matthew Pearn is encouraged by a private member’s bill that aims to protect journalists’ confidential sources.

“It’s considerably better than what we have right now,” says Pearn, an associate with Foster & Company and a former CBC radio reporter.

Bill S-231, the Journalistic Sources Protection Act, was passed by the Senate in April. It now heads to the House of Commons, where members of Parliament would have to pass it for it to become law.

According to the bill, a journalist would be ordered to turn over information “only if the judge is satisfied that there is no other way by which the desired information can reasonably be obtained and that the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in the collection and dissemination of information.”

Quebec Senator Claude Carignan introduced the bill last year amid revelations that police spied on several journalists while investigating internal police leaks, reports the Globe and Mail.

“It’s a fundamental principle,” Carignan tells the Globe. “It’s very important to protect the journalist and also the whistle-blower.”

Bill S-231 proposes amendments to the Criminal Code of Canada that would allow a Superior Court judge to order a journalist to turn over information. The court may authorize the disclosure of information or a document only if it considers that:

(a) the information or document cannot be produced in evidence by any other reasonable means;

(b) 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 essential role of the information or document in the proceeding,

(ii) freedom of the press, and

(iii) the impact of disclosure on the journalistic source and the journalist; and

(c) due consideration was given to all means of disclosure that would preserve the identity of the journalistic source.

While the bill doesn't prevent journalists from having to hand over information, it certainly makes it more difficult, Pearn tells AdvocateDaily.com.

“If this becomes law, the courts will have to first consider whether it’s in the public's best interest to breach the confidentiality of the source.”

Pearn says it will likely embolden news organizations to fight police attempts to access confidential sources or information.

“If I were a journalist facing a police warrant, I would take some comfort in knowing that I'm entitled under the law to protect my sources and my editor might be more willing to spend the money to fight the warrant,” Pearn says.

The Journalistic Sources Protection Act, if passed, will give journalists 10 days to apply to “a judge of the court that issued the warrant, authorization or order to issue an order that the document is not to be disclosed to an officer on the grounds that the document identifies or is likely to identify a journalistic source.”

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