First Session, Forty-second Parliament, 64-65-66 Elizabeth II, 2015-2016-2017

STATUTES OF CANADA 2017

CHAPTER 22 An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)

ASSENTED TO October 18, 2017 BILL S-231

This enactment amends the Canada Evidence Act to protect the confidentiality of journalistic sources. It allows journalists to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained 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.

The enactment also amends the Criminal Code so that only a judge of a superior court of criminal jurisdiction or a judge within the meaning of section 552 of that Act may issue a search warrant relating to a journalist. It also provides that a search warrant can be issued 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. The judge must also be satisfied that these same conditions apply before an officer can examine, reproduce or make copies of a document obtained under a search warrant relating to a journalist.

64-65-66 Elizabeth II

CHAPTER 22

An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)

[Assented to 18th October, 2017]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Journalistic Sources

Definitions

39.‍1  (1) The following definitions apply in this section.

document has the same meaning as in section 487.‍011 of the Criminal Code. (document)

journalist means a person 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. (journaliste)

journalistic source means 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. (source journalistique)

Objection

(2) Subject to subsection (7), a journalist may 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.

Former journalist

(3) For the purposes of subsections (2) and (7), journalist includes an individual who was a journalist when information that identifies or is likely to identify the journalistic source was transmitted to that individual.

Power of court, person or body

(4) The court, person or body may raise the application of subsection (2) on their own initiative.

Objection of court, person or body

(5) When an objection or the application of subsection (2) is raised, the court, person or body shall ensure that the information or document is not disclosed other than in accordance with this section.

Observations

(6) Before determining the question, the court, person or body must give the parties and interested persons a reasonable opportunity to present observations.

Authorization

(7) The court, person or body may authorize the disclosure of information or a document only if they consider that

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

• (b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to, among other things,

  • (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 disclosure on the journalistic source and the journalist.

Conditions

(8) An authorization under subsection (7) may contain any conditions that the court, person or body considers appropriate to protect the identity of the journalistic source.

Burden of proof

(9) A person who requests the disclosure has the burden of proving that the conditions set out in subsection (7) are fulfilled.

Appeal

(10) An appeal lies from a determination under subsection (7)

• (a) to the Federal Court of Appeal from a determination of the Federal Court;

• (b) to the court of appeal of a province from a determination of a superior court of the province;

• (c) to the Federal Court from a determination of a court, person or body vested with power to compel production by or under an Act of Parliament if the court, person or body is not established under a law of a province; or

• (d) to the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.

Limitation period for appeal

(11) An appeal under subsection (10) shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances.

Hearing in summary way

(12) An appeal under subsection (10) shall be heard and determined without delay and in a summary way.

Definitions

488.‍01  (1) The following definitions apply in this section and in section 488.‍02.

data has the same meaning as in section 487.‍011. (données)

document has the same meaning as in section 487.‍011. (document)

journalist has the same meaning as in subsection 39.‍1(1) of the Canada Evidence Act. (journaliste)

journalistic source has the same meaning as in subsection 39.‍1(1) of the Canada Evidence Act. (source journalistique)

officer means a peace officer or public officer. (fonctionnaire)

Warrant, authorization and order

(2) Despite any other provision of this Act, if an applicant for a warrant under section 487.‍01, 487.‍1, 492.‍1 or 492.‍2, a search warrant under this Act, notably under section 487, an authorization under section 184.‍2, 184.‍3, 186 or 188, or an order under any of sections 487.‍014 to 487.‍017 knows that the application relates to a journalist’s communications or an object, document or data relating to or in the possession of a journalist, they shall make an application to a judge of a superior court of criminal jurisdiction or to a judge as defined in section 552. That judge has exclusive jurisdiction to dispose of the application.

Warrant, authorization and order

(3) A judge may issue a warrant, authorization or order under subsection (2) only if, in addition to the conditions required for the issue of the warrant, authorization or order, he or she is satisfied that

• (a) there is no other way by which the information can reasonably be obtained; and

• (b) the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.

Special Advocate

(4) The judge to whom the application for the warrant, authorization or order is made may, in his or her discretion, request that a special advocate present observations in the interests of freedom of the press concerning the conditions set out in subsection (3).

Offence by journalist — exception

(5) Subsections (3) and (4) do not apply in respect of an application for a warrant, authorization or order that is made in relation to the commission of an offence by a journalist.

Offence by journalist — order

(6) If a warrant, authorization or order referred to in subsection (2) is sought in relation to the commission of an offence by a journalist and the judge considers it necessary to protect the confidentiality of journalistic sources, the judge may order that some or all documents obtained pursuant to the warrant, authorization or order are to be dealt with in accordance with section 488.‍02.

Conditions

(7) The warrant, authorization or order referred to in subsection (2) may contain any conditions that the judge considers appropriate to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities.

Powers

(8) The judge who rules on the application for the warrant, authorization or order referred to in subsection (2) has the same powers, with the necessary adaptations, as the authority who may issue the warrant, authorization or order.

Discovery of relation to journalist

(9) If an officer, acting under a warrant, authorization or order referred to in subsection (2) for which an application was not made in accordance with that subsection, becomes aware that the warrant, authorization or order relates to a journalist’s communications or an object, document or data relating to or in the possession of a journalist, the officer shall, as soon as possible, make an ex parte application to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and, until the judge disposes of the application,

• (a) refrain from examining or reproducing, in whole or in part, any document obtained pursuant to the warrant, authorization or order; and

• (b) place any document obtained pursuant to the warrant, authorization or order in a sealed packet and keep it in a place to which the public has no access.

Powers of judge

(10) On an application under subsection (9), the judge may

• (a) confirm the warrant, authorization or order if the judge is of the opinion that no additional conditions to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities should be imposed;

• (b) vary the warrant, authorization or order to impose any conditions that the judge considers appropriate to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities;

• (c) if the judge considers it necessary to protect the confidentiality of journalistic sources, order that some or all documents that were or will be obtained pursuant to the warrant, authorization or order are to be dealt with in accordance with section 488.‍02; or

• (d) revoke the warrant, authorization or order if the judge is of the opinion that the applicant knew or ought reasonably to have known that the application for the warrant, authorization or order related to a journalist’s communications or an object, document or data relating to or in the possession of a journalist.

Documents

488.‍02 (1) Any document obtained pursuant to a warrant, authorization or order issued in accordance with subsection 488.‍01(3), or that is the subject of an order made under subsection 488.‍01(6) or paragraph 488.‍01(10)‍(c), is to be placed in a packet and sealed by the court that issued the warrant, authorization or order and is to be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and is not to be dealt with except in accordance with this section.

Notice

(2) No officer is to examine or reproduce, in whole or in part, a document referred to in subsection (1) without giving the journalist and relevant media outlet notice of his or her intention to examine or reproduce the document.

Application

(3) The journalist or relevant media outlet may, within 10 days of receiving the notice referred to in subsection (2), 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 identity a journalistic source.

Disclosure: prohibition

(4) A document that is subject to an application under subsection (3) is to be disclosed to an officer only following a disclosure order in accordance with paragraph (7)‍(b).

Disclosure order

(5) The judge may order the disclosure of a document only if he or she is satisfied that

• (a) there is no other way by which the information can reasonably be obtained; and

• (b) the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.

Examination

(6) The judge may, if he or she considers it necessary, examine a document to determine whether it should be disclosed.

Order

(7) The judge must,

• (a) if he or she is of the opinion that the document should not be disclosed, order that it be returned to the journalist or the media outlet, as the case may be; or

• (b) if he or she is of the opinion that the document should be disclosed, order that it be delivered to the officer who gave the notice under subsection (2), subject to such restrictions and conditions as the judge deems appropriate.