SCC File No. 38114 in the SUPREME COURT of CANADA (ON APPEAL from the COURT of APPEAL for QUEBEC) BETWEEN: MARIE-MAUDE DENIS Appellant (Respondent) – and –

SCC File No. 38114 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC) BETWEEN: MARIE-MAUDE DENIS Appellant (Respondent) – and –

MARC-YVAN CÔTÉ Respondent (Appellant) – and –

HER MAJESTY THE QUEEN, ATTORNEY GENERAL OF QUEBEC, FÉDÉRATION PROFESSIONELLE DES JOURNALISTES DU QUÉBEC, CANADIAN ASSOCIATION OF JOURNALISTS, CANADIAN JOURNALISTS FOR FREEDOM OF EXPRESSION ET REPORTERS WITHOUT BORDERS, LA PRESSE (2018) INC., CANADIAN CIVIL LIBERTIES ASSOCIATION and AD IDEM/CANADIAN MEDIA LAWYERS ASSOCIATION, CTV, A DIVISION OF BELL MEDIA INC., GLOBAL NEWS, A DIVISION OF CORUS TELEVISION LIMITED PARTNERSHIP, GLOBE AND MAIL INC. POSTMEDIA NETWORK INC., VICE STUDIO CANADA INC. Interveners

FACTUM OF THE INTERVENERS, AD IDEM/CANADIAN MEDIA LAWYERS ASSOCIATION, CTV, A DIVISION OF BELL MEDIA INC., GLOBAL NEWS, A DIVISION OF CORUS TELEVISION LIMITED PARTNERSHIP, THE GLOBE AND MAIL INC., POSTMEDIA NETWORK INC., and VICE STUDIO CANADA INC. (COLLECTIVELY, THE “MEDIA COALITION”) (Pursuant to Rules 42 of the Rules of the Supreme Court of Canada)

Borden Ladner Gervais LLP Borden Ladner Gervais LLP 1200 Waterfront Centre World Exchange Plaza 200 Burrard Street 1300 - 100 Queen St. P.O. Box 48600 Ottawa, ON K1P 1J9 Vancouver, BC V7X 1T2

David Crerar Karen Perron Tel.: 604.640.4181 Tel.: 613.2369.4795 Fax.: 604.622.5000 Fax.: 613.230.8842 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Media Coalition Media Coalition

- 2 - Linden and Associates Royal Bank Plaza 2010 - 200 Bay Street, North Tower Toronto, ON M5J 2J1

Iain A.C. MacKinnon Tel.: 416.861.9338 Fax.: 416-861-9973 Email: [email protected]

Counsel for the Intervener, Media Coalition

ORIGINAL TO The Registrar Supreme Court of Canada 301 Wellington Street Ottawa, ON K1A 0J1

COPY TO: Fasken Martineau DuMoulin LLP Fasken Martineau DuMoulin LLP Bureau 3700 - 800, rue du Square-Victoria 1300 - 55 Metcalfe Street Montréal, QC H4Z 1E9 Ottawa, ON K1P 6L5

Christian Leblanc | Patricia Hénault Sophie Arseneault Geneviève McSween - Société Radio- Canada Tel: 514.397.7545 | 514.397.7488 Tel: 613. 236.3882 514.597.7762 Fax: 514.397.7600 Fax: 613. 230.6423 Email: [email protected] Email: [email protected] [email protected] [email protected]

Counsel for the Appellant Ottawa Agent for the Appellant

- 3 - Jacques Larochelle avocat inc. 75, rue Saint-Jean Québec, QC G1R 1N4

Jacques Larochelle | Olivier Desjardins Tel: 418.529.5881 Fax: 418.529.1656 Email: [email protected] [email protected]

Counsel for the Respondent

Criminal and Penal Prosecutions of Québec Criminal and Penal Prosecutions of Québec Bureau 600 - 393, rue St-Jacques Bureau 1.230 - 17, rue Laurier Montréal (Québec) H2Y 1N9 Gatineau (Quebec) J8X 4C1

Robert Rouleau Emily K. Moreau Tel: 514.873.3856 Tel: 819.776.8111 Ext: 60412 Fax: 514.904.4130 Fax: 819.772.3986 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Her Majesty the Queen Her Majesty the Queen

Attorney General of Québec Noël & Associés Bureau 8.0 - 1, rue Notre-Dame Est 111 rue Champlain Montréal, QC H2Y 1B6 Gatineau, QC J8X 3R1

Michel Déom Sylvie Labbé Tel.: 514.393.2336 Ext: 51498 Tel: 819.771.7393 Fax: 514.873.7074 Fax: 819.771.5397 E-mail: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Attorney General of Québec Attorney General of Quebec

- 4 - Gowling WLG (Canada) LLP 3700 - 1 Place Ville Marie Montréal, QC H3B 3P4

Mark Bantey Tel: 514.392.9501 Fax: 514.876.9501 Email: [email protected]

Counsel for the Intervener, Fédération professionnelle des journalistes de Québec, Canadian Association Journalists, Canadian Journalists for Freedom of Expression et Reporters Without Borders

Chenette, Boutique de litige inc. Gowling WLG (Canada) LLP 400 - 388, rue Saint-Jacques 2600 - 160 Elgin Street Montréal, QC H2Y 1S1 Ottawa, ON K1P 1C3

Sébastein Pierre-Roy Guy Régimbald Tel: 514.877.4228 Ext: 227 Tel: 613.786.0197 Fax: 514.397.4064 Fax: 613.563.9869 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, La Presse (2018) Inc. La Presse (2018) Inc.

Borden Ladner Gervais LLP Borden Ladner Gervais LLP 3400 - 22 Adelaide Street West 1300 - 100 Queen St. Toronto, ON M5H 4E3 Ottawa, ON K1P 1J9

Christopher D. Bredt | Pierre Gemson Karen Perron Tel: 416.367.6165 Tel.: 613.369.4795 Fax: 416.367.6749 Fax.: 613.230.8842 Email: [email protected] Email:[email protected] [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Canadian Civil Liberties Association Canadian Civil Liberties Association

TABLE OF CONTENTS

Part I – Overview ...... 1

Part II – Position on the Questions in Issue ...... 3

Part III – Statement of Argument ...... 3

A. Introduction: the JSPA seeks to better protect journalists and their sources ...... 3

B. Journalistic confidential sources presumptively protected ...... 5

C. Plain wording, the Constitution, and judicial economy mandate provincial appeals 8

D. Conclusion ...... 10

Part IV – Costs ...... 10

Part V – ORDER SOUGHT ...... 10

Part VI – Table of Authorities ...... 12

Case Law ...... 12

Parliamentary Materials ...... 12

Academic and Journalistic Works ...... 13

Legislation...... 14

APPENDIX A ...... 15

Members of the Media Coalition ...... 15

PART I – OVERVIEW

1. History shows that confidential sources are critical to safeguarding our democracy. The Pentagon Papers, Watergate, Snowden, Abu Ghraib, the Somali Affair, the present White House, the Sponsorship Scandal, Shawinigate: confidential sources have revealed to the public, through the voice of the media, fundamental issues of public and corporate governance. 1 Without those confidential revelations, these important matters may well never have seen the light of day.2 Therefore, the disclosure of information that would identity confidential sources should only be permitted in rare and exceptional circumstances.

2. As of the current date, two matters of importance to the rule of law and the governance of the country dominate the news: the Mark Norman trial, and the SNC-Lavalin affair. Each matter had its genesis in anonymous sources who shared information with a journalist. Regardless of the outcome or ultimate truth of those matters, our democracy requires their transparent investigation.

3. The present appeal is this Court’s first consideration of the Journalistic Sources Protection Act provisions in the Canada Evidence Act (s.39.1) (the “JSPA”).3 The outcome of this appeal, and the interpretation of the JSPA, will critically affect the way journalism is conducted across this country, and the ability of journalists to investigate and reveal problems in our society, to hold

1 R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477 at para. 28 [National Post]; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592 [Globe]; J. Cameron, “Of Scandals, Sources, and Secrets: Investigative Reporting, National Post and Globe & Mail,” (2011) 54 SCLR (2d) 233 at 233-34; C. Hutchison, “Leaks to Media May Decrease After Vice Media Decision”, slaw.ca (March 6, 2019); R. Fife, S. Chase, S. Fine, “PMO pressed Wilson-Raybould to abandon prosecution of SNC-Lavalin; Trudeau denies his office ‘directed’ her,” Globe & Mail (February 7, 2019); D. Pugliese, “Federal ministries investigate after officials provide Irving Shipbuilding with information about Postmedia journalist”, Ottawa Citizen (March 14, 2019); Anonymous, “I Am Part of the Resistance Inside the Trump Administration” (September 6, 2018), New York Times; G. Greenwald, “XKeyscore: NSA tools collect ‘nearly everything a user does on the internet”, The Guardian (July 31, 2013); K.L. Sager and R.L. Wilcox, “Protecting Confidential Sources,” (Winter 2007) 33:2 Litigation 36 at 37, 40; D. Banisar, “Silencing Sources: An International Survey of Protections and Threats to Journalists’ Sources”, Privacy International (November 2007) at 8; Centre for Free Expression, “Prominent Canadian Whistleblowers”; J.D. Burke, “Shielding the Public Interest: What Canada Can Learn from the United States in the Wake of National Post and Globe & Mail”, (Winter 2012) 35 Boston College International and Comparative Law Review 189 at 199-200. 2 National Post at para. 28. 3 Journalistic Sources Protection Act, SC 2017, c. 22; Canada Evidence Act, RSC 1985, c C-5.

those in power to account, and to communicate this information to a well-informed citizenry.

4. The JPSA was enacted partly to provide better protections than those previously offered by the common law, and specifically in response to the egregious state intrusions on the privacy of journalists, such as Patrick Lagacé, as canvassed by the Chamberland Commission in Québec.4

5. Remarkably, the JSPA was passed unanimously, across party lines, in both Houses of Parliament.5 Its Senate sponsor, Senator Carignan, stated its objectives:

Journalistic sources or whistleblowers that provide information to the media or blow the whistle on abuse they have witnessed play a critical role in our society. They help keep the government accountable to Canadians. Journalistic sources, or people who blow the whistle on abuse in their workplace or elsewhere in the public administration system, take a great deal of risk when they expose wrongdoing, fraud, abuse or the misappropriation of public funds….

…the purpose of this bill is to protect the best interests of Canadians and preserve their trust in the integrity of their institutions. It is about protecting ourselves against attacks on one of the pillars of our democracy, Canadians' right to information and sound administration of their public institutions.6

6. In this, the JSPA brings Canada closer in line to the protections offered by other Western democracies (while still falling short of the “shield law” privilege enjoyed in at least 36 US states).7

7. The Media Coalition, consisting the only Canada-wide law association dedicated to media law and to freedom of the press,8 as well as five nation-wide media entities involved in print, radio,

4 Report Overview: Québec, Commission d’Enquête sur la confidentialité des sources journalistiques (Québec, Publications du Québec, 2017) at 3; Québec, Commission d’Enquête sur la confidentialité des sources journalistiques (Québec, Publications du Québec, 2017) [Chamberland Commission]; Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (December 12, 2016), 2010 at 2020-30 (Senator Pratte) ; Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (April 6, 2017), at 1690 (Senator Carignan). 5 Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (April 11, 2017) at 1950. House of Commons Journals, 42nd Parl. 1st Sess. (October 4, 2017), vote #361. 6 Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (December 5, 2016), at 2010. 7 National Post at para. 48-49; Burke at 189-190, 197, 222; Banisar at 15-18, 23-25; UNESCO, “Protecting Journalism Sources in the Digital Age,” (2017) (UNESCO Publishing) at pp. 11, 41- 52, 75-76, 91, 94 [UNESCO]. 8 Canadian Media Lawyers Association / Ad IDEM

television, and internet journalism,9 intervenes in this appeal to submit that the plain language interpretation of the JSPA accords with the legislative intent of broad protection of the public’s interest in journalistic privacy.

PART II – POSITION ON THE QUESTIONS IN ISSUE

8. The Media Coalition takes no position on the outcome of the appeals. It makes submissions on the proper interpretation of the JSPA with respect to both appeals: a. the provisions protecting confidential sources must be read purposively so that disclosure of such sources should only be ordered in rare and exceptional circumstances, considering the importance of freedom of the press and the chilling effects that such disclosure would have on important stories of public interest being brought to light;10 and b. in order to enhance the overall effectiveness of the administration of justice, an appeal pursuant to s. 39.1(10) from a superior court of justice should be heard by a provincial court of appeal, even when a journalist’s objection to disclosure of a confidential source occurs at first instance in a provincial court.11

PART III – STATEMENT OF ARGUMENT

A. Introduction: the JSPA seeks to better protect journalists and their sources

9. The Media Coalition’s journalists, reporters, editors, and producers are directly on the firing line when dealing with confidential sources as part of their day-to-day duties. They face the dilemma of making and honouring commitments to sources who seek confidentiality. They must make difficult decisions when faced with legal compulsion to disclose sources’ identities. They are the very people who would be subject to orders such as the one issued in this case to compel disclosure of a confidential source, and who face contempt of court if those orders are not obeyed.

10. They are also the people who must decide whether to spend funds on the legal defence of

9 Postmedia Network Inc; CTV, a Division of Bell Media Inc. / CTV, une division de Bell Média inc.; The Globe and Mail Inc.; Global News, a division of Corus Television Limited Partnership; and VICE Studio Canada Inc. 10 Appeal from R. v. Côté, 2018 QCCS 1138 11 Appeal from R. v. Côté, 2018 QCCA 611.

confidential sources: funds that would otherwise be spent on journalistic endeavours. This is an increasingly difficult decision in these times when journalism,12 and funds for journalism, are notoriously under strain. 13

11. Confidential sources play a critical role for journalists investigating matters of great public importance in our democratic society: scrutinizing the powerful, and informing the public. Protecting such sources is critical to the rights protected by section 2(b) of the Charter: the right to communicate and to receive information.14 The right and interest is ultimately that of the public.15

12. The independence of media in this country is fundamental to its role. When the state (directly or indirectly via the courts) compels evidence from journalists, as in an order to provide a document or information concerning a confidential source, it undermines the independence of the media and creates the perception of the media as agents of the state.16

13. Journalists’ commitments of confidentiality must be assiduously protected and only

12 UNESCO at 7-8, 23-24; Public Policy Forum, “The Shattered Mirror Series: Mind the Gaps: Quantifying the Decline of News Coverage in Canada (September 2018) at 2, 5-9; Public Policy Forum, “The Shattered Mirror News, Democracy and Trust in the Digital Age” (January 2017), at 14-15, 17-30, 44-45; T. Pedwell, “Local news cut in half, not-for-profit funding models emerging, reports say”, The Canadian Press (September 25, 2018); E. Jackson, “Torstar to move to a subscription model, charge readers for online news” Financial Post (May 9, 2018); “Postmedia cuts staff and stops printing 9 newspapers”, Canada Newswire (June 26, 2018); “Postmedia to Close Community Newspapers across southern Ontario,” CBC News (November 27, 2017); “The Global Slump in Press Freedom”, The Economist (July 23, 2018). 13 As stated by the House of Commons sponsor of the JSPA bill, Gérard Deltell, “The Globe and Mail's David Walmsley said, “We’re here because [we] are facing enormous threats”. They are facing enormous threats when it comes to protecting sources. The Globe and Mail has spent up to $1 million in the past few months protecting journalistic sources. Today we are witnessing the culmination of a very important exercise that is of great value to Canadian democracy….” House of Commons Debates, 42nd Parl., 1st Sess. (September 19, 2017) 1730 at 1740. 14 Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 at paras. 50 and 59 15 National Post at para. 28, 64; R. v. Vice Media Canada Inc., 2018 SCC 53 at para.124 (Abella J, dissenting) [Vice]. 16 Vice at para. 26; Canadian Broadcasting Corporation v. Lessard, [1991] 3 SCR 421 at 430, 432 [Lessard]; Canadian Broadcasting Corporation v. Manitoba (AG), 2009 MBCA 122 at para. 74.

revealed where the party seeking to disclose the confidential source clearly discharges its statutory burden to prove both requirements of s.39.1(7). In this, the JSPA realizes the observation of Binnie J, pre-JSPA, that “....given the importance of investigative journalism in exploring potential conflicts of interest in decision making at the highest levels of government, the relationship between the appellants and their secret sources ought in general to be “sedulously fostered””.17

14. Investigative journalism in particular often depends on confidential sources, even if only for initial tips or corroboration of information obtained elsewhere. This type of reporting is an essential part of the media’s public watchdog function, providing a means to explore, probe and expose issues of public concern.

B. Journalistic confidential sources presumptively protected

15. The JSPA is not a mere codification of the Wigmore factors or the principles of the National Post.18 Nor does it seek to limit journalistic source protection, as suggested by the Superior Court.19 The JSPA represents a fundamental and remedial legislative change designed to strengthen the protection of media privacy and confidential sources. As stated by Senator Carignan:

Journalists and their sources benefitted somewhat from the ruling in the Globe and Mail case. Today, with Bill S-231, their rights will be strengthened by legislation.20

16. The JSPA amends not one but two statutes, and improves upon the common law safeguards in multiple ways. It effectively responds to the observation of Binnie J. that a class privilege for journalistic sources would appropriately come through legislation, rather than the courts.21

17. First, the tightening of jurisdiction reflects the importance of confidential sources to the public. Justices of the peace or provincial court justices may no longer issue a search warrant against a journalist that relates to the journalist’s communications or materials in his/her possession. The JSPA amends the Criminal Code such that only a judge of a superior court of

17 National Post at para. 57, 70. 18 With respect to R. v. Côté, 2018 QCCS 1138 at para. 77. 19 With respect to R. v. Côté, 2018 QCCS 1138 at para. 81. 20 Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (April 6, 2017), at 1710. 21 National Post at paras. 42, 49.

criminal jurisdiction or a judge within the meaning of section 552 of that Act may do so.22

18. With respect to the privilege itself, the JSPA represents a significant departure from the common law case-by-case privilege canvassed in National Post and Globe & Mail. The JSPA now creates a presumptive protection of confidential sources. Importantly, it reverses the burden of proof.23 A journalist no longer must establish the privilege.24 Now the party seeking to compel disclosure must displace the presumption that confidential sources will stay confidential.

19. The information or document sought will be ordered disclosed only if the party seeking disclosure satisfies both of the two conditions in s.39.1(7). This test of necessity mirrors the high standard set out in the Dagenais/Mentuck test with respect to restraints on the media and public knowledge: such an abrogation of s.2(b) is to be ordered only if necessary to avert clear harm, which harm must be based on evidence and not speculation.25

20. With respect to s.39.1(7)(b), the information or document must be important to “a central issue in the proceeding” (such as, for example, the guilt or innocence of the accused), rather than a peripheral procedural issue (such as, an application like the present Babos motion).26 The JSPA’s objectives will be stymied if these two italicized words are downplayed.

22 JSPA, s. 3, amending Criminal Code, 488.01(2). 23 s. 39.1(9); Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (December 12, 2016), at 2030. 24 National Post at para. 64. 25 R. v. Mentuck, [2001] 3 SCR 442 at para. 34 [Mentuck]; Dagenais v. CBC, [1994] 3 SCR 835 at 880 [Dagenais]; Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 SCR 188, 2005 SCC 41 at para.19, 23 [Torstar]. 26 Emphasis added. R. v. Babos, 2014 SCC 16 at para. 44. In this, Babos presents a very high threshold for the applicant: "Undoubtedly, the balancing of societal interests that must take place and the “clearest of cases” threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be “exceptional” and “very rare”… But this is as it should be. It is only where the “affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay of proceedings will be warranted..." Should a confidential source be revealed, and journalistic privacy abrogated, for the sake of a tenuous application?

21. The legislation’s broad changes present an appropriate balance to protect the fragile yet critical role of confidential sources to the media and to the public. Among the fragilities canvassed in the sources cited above, a confidential source, as whistleblower, will almost always be vulnerable to vindictive action, such as termination, liability, censure, ostracism, or violence. That is why they seek confidentiality. Conversely, the party seeking to compel the identity of a confidential source may well have ulterior motives to reveal a whistleblower’s identity.27

22. If the JSPA is interpreted such that confidential sources are too readily and regularly disclosed, confidential sources will be less likely to come forward, and journalists will be less able to carry out important investigations and stories, with the public deprived of the media’s information and watchdog role.28 This chilling effect is a risk particularly acute with confidential sources.29 The JSPA seeks to alleviate this chill. As stated by Senator Claude Carignan, sponsor of the Bill leading to the JPSA: “It’s sending a message to the population that they will be protected if they ask for protection from the journalist…It will probably help the media to receive more information…”30

23. Further, a stilted approach to the JSPA will mean that journalists will be less able to probe and corroborate the information. Notes will be deliberately circumspect. Important articles will be less likely published. Those that are published will be less thoroughly investigated. Thus, in the words of Binnie J, “Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment.”31

24. The chill is reciprocal. A journalist who publishes a story based on an anonymous source may face greater liability and exposure in defamation, and will be less able to rely on the defence of responsible communication, a key factor for which is the status and reliability of the source.32

27 Burke at 198, 200-201; Hutchison at para.3. 28 National Post at para.15 (majority); 122-123 (dissent); 1654776 Ontario Limited v. Stewart, 2013 ONCA 184 at paras. 101-102; lv to appeal dism’d (September 19, 2013) No. 35394. 29 Vice at paras. 26-32; National Post at para.78; UNESCO at 103-104; Chamberland Commission at 174. 30 L. Taylor et al., “Understanding Canada’s New Shield Law for Confidential Sources”, Oct. 23, 2017, J-Source. 31 National Post at para.33. 32 Grant v Torstar Corp., [2009] 3 SCR 640 at paras. 114-115 [Grant].

25. The applicant Mr Côté places much weight on the sub judice point. But even where the confidential source has broken a law, the communication, even under the more limited common law, may be protected. As stated by Binnie J, “...The Crown argues that the existence of any crime is sufficient to vitiate a privilege but that is too broad a generalization. The Pentagon Papers case originated in circumstances amounting to an offence, yet few would now argue that the publication of the true facts in that situation was not in the greater public interest.”33 Further, any concerns with respect to illegality should be dealt with directly, through contempt or criminal charges, rather than through a distortive interpretation or application of the JSPA.

26. An order under s.39.1 should also not be an all-or-nothing enquiry. Given the protective purpose of the JSPA and the constitutional principle of minimal impairment, even where the court decides that the applicant has discharged its burden of proving both aspects of s.39.1(7), the court should ask itself a further question: can the information or documentation be redacted or limited such as to reveal only so much information about the confidential source as is necessary?34 To use the present appeal as an example, the information could be limited to a confirmation that the source is governmental, or, alternatively, the level or department of that source, rather than compelling the specific name of the source. A carefully tailored order would best preserve the legislative protections of the JSPA, and be consistent with the jurisprudence.

C. Plain wording, the Constitution, and judicial economy mandate provincial appeals

27. If the legislature had intended to deprive parties the right to appeal to provincial courts of appeal, or to deny those courts appellate jurisdiction over the JSPA, and institute a regime where such appeals must go straight to the Supreme Court of Canada, it would have made that clear.35

28. The plain wording of the JSPA suggests the opposite: ss. (10)(a) and (b) expressly allow

33 National Post at para.61. See also Globe at paras. 95-98 34 Mentuck at para. 36, 60; Canadian Broadcasting Corp. v. New Brunswick (Attorney-General) [1996] 3 SCR 480 at paras. 60-61; Dagenais at 880-881, 890. 35 Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Lexis Nexis, 2014) at §15.41. An appeal directly to this court, per saltum, occurs only in the rarest of cases, and concerns a point of law rather than a contextual determination such as the present: Supreme Court Act, RSC 1985, c. S-26, ss.38-40.

an appeal to a provincial court of appeal.

29. The Court of Appeal emphasizes the word “determination” in the English version of the JSPA (“An appeal lies from a determination under subsection (7)”) and concluded “le législateur emploie d’ailleurs le terme «determination» pour désigner la «décision» dont il peut être fait appel, terme qui appartient habituellement au registre lexical de la première instance.” 36

30. But in its plain language and in its general jurisprudential uses, the word “determination” is not limited to a ruling by the court of first instance.37 Appellate courts also “determine” issues on appeal and could do so under s.39.1(7) or (10). Conversely, the JSPA could have easily stated, “of the first instance” if that was the intent.

31. Further, a JSPA order is not a mere evidentiary ruling. It could not have been the intention of the drafters to limit an appeal of an order revealing a journalist source from a provincial court – an issue always imbued with constitutional and ethical importance – to a single judge of a superior court. Nor could it have made such an important appeal subject to a leave application to this Court.

32. Further, practical considerations also indicate that provincial courts of appeal retain jurisdiction. Given the omnipresent constitutional and journalistic importance of confidential sources, and, at times, the importance of the evidence to the state and other parties, an order to reveal a source will often be appealed. The Ontario Court of Appeal has noted, in the context of media applications for access to court exhibits in criminal cases, that allowing provincial courts of appeal to have jurisdiction in these types of situations,

enhances the overall effectiveness of the administration of justice by allowing the matter to proceed through all stages of the judicial hierarchy, beginning with the initial hearing, through the intermediate court of appeal and, if necessary, to the

36 R. v. Côté, 2018 QCCA 611 at para.15, citing s.39.1(10). 37 See, for example, Flexume Sign Co. Limited v. Globe Securities Limited, [1917] 12 OWN 138 (OSC – HC) at para.7-8: “…the case is not “determined” until the last appellate Court has made its pronouncement”; R v. Calnen, 2019 SCC 6 at para.130-131; Supreme Court Act, s. 2(1): “final judgment means any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding; (jugement définitif).”

Supreme Court of Canada. Intermediate courts of appeal play a meaningful role in the resolution of individual cases and the development of a coherent and effective jurisprudence. Appeal routes that pass through intermediate courts of appeal allow those courts to perform those functions.38

33. It could also not have been the intention of the drafters to subject a journalist (whom s.39.1(2) specifically anticipates will be the party asserting protection of the source) to the additional cost and complexity of Supreme Court of Canada filings, a leave application, and travel, in order to defend their presumptive right to protection of confidential sources. Such a logistic scheme would run counter to the streamlined process of the JSPA, with its short limitation period for appeals (s.39.1(11)), its expedited summary appeals (s.39.1(12)), and the ability of any person, or the court, to “raise” the objection to disclosure on its own, without a formal motion (s.39.1(4)).

34. Finally, the practical principles and objectives noted by this Court in Dagenais and Mentuck, including the valuable input of provincial courts of appeal, support an interpretation of the JSPA that permits an appeal to a provincial court of appeal.39

D. Conclusion

35. The Media Coalition submits that the legislative intent of the JSPA is to foster and protect the important societal role of journalists and their sources. There will always be a tendency for the police and courts to focus narrowly on the investigative and justice concerns in the particular case at hand and fail to properly take into account the broader social impact such rulings can have. It is all too easy to ignore the subtle future impact of rulings that override commitments of confidentiality and compel disclosure. A strong message needs to be sent to support this broader perspective, and to breathe life into the fledging JSPA.

PART IV – COSTS

36. The Media Coalition seeks no order on costs and asks that no costs be awarded against it.

PART V – ORDER SOUGHT

37. The Media Coalition is intervening in the public interest and does not take a position on the order as against the parties.

38 Canadian Broadcasting Corporation v. Ontario, 2011 ONCA 624 at para. 35 39 Dagenais at 872; Mentuck at para.17.

PART VI – TABLE OF AUTHORITIES

Case Law

Cited at Authority Paragraph 1. 1654776 Ontario Limited v. Stewart, 2013 ONCA 184 23 2. Canadian Broadcasting Corp. v. New Brunswick (Attorney-General) 27 [1996] 3 SCR 480 3. Canadian Broadcasting Corporation v. Ontario, 2011 ONCA 624 31 4. Dagenais v. CBC, [1994] 3 SCR 835 20, 27, 35 5. Flexume Sign Co. Limited v. Globe Securities Limited, [1917] 12 OWN 138 31 (OSC – HC) 6. Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 11 7. Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 1 S.C.R. 592 8. Grant v Torstar Corp., [2009] 3 SCR 640 25 9. R. v. Babos, 2014 SCC 16 21 10. R v. Calnen, 2019 SCC 6 31 11. R. v. Côté, 2018 QCCA 611 8(b), 30 12. R. v. Côté, 2018 QCCS 1138 8(a), 16 13. R. v. Mentuck, [2001] 3 SCR 442 20, 27, 35 14. R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477 1, 5, 12, 14, 17, 19, 23, 24, 26 15. R. v. Vice Media Canada Inc., 2018 SCC 53 6, 12, 13, 23 16. Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 SCR 188, 2005 SCC 41 20

Parliamentary Materials

Cited at Authority Paragraph 1. House of Commons Debates, 42nd Parl., 1st Sess. (September 19, 2017) 10, 23 2. House of Commons Journals, 42nd Parl. 1st Sess. (October 4, 2017), vote 4 #361

Cited at Authority Paragraph 3. Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (December 5, 2016) 3 4. Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (December 12, 2016) 3, 19 5. Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (April 6, 2017) 3, 16 6. Senate Debates, 42nd Parl. 1st Sess. Vol. 150 (April 11, 2017) 4

Academic and Journalistic Works

Authority Cited at Paragraph 1. Anonymous, I am Part of the Resistance Inside I Am the Trump 1 Administration (September 5, 2018), New York Times 2. Cameron Hutchison, “Leaks to Media May Decrease After Vice Media 1 Decision”, slaw.ca (March 6, 2019) 3. Centre for Free Expression, “Prominent Canadian Whistleblowers” 1 4. David Banisar, “Silencing Sources: An International Survey of Protections 1 and Threats to Journalists’ Sources”, Privacy International (November 2007) 5. D. Pugliese, “Federal ministries investigate after officials provide Irving 1 Shipbuilding with information about Postmedia journalist” Ottawa Citizen (March 14, 2019) 6. Emily Jackson, “Torstar to move to a subscription model, charge readers 10 for online news” Financial Post (May 9, 2018) 7. Glenn Greenwald, “XKeyscore: NSA tools collect ‘nearly everything a user 1 does on the internet’”, The Guardian (July 31, 2013) 8. J. Cameron, “Of Scandals, Sources, and Secrets: Investigative Reporting, 1 National Post and Globe & Mail,” (2011) 54 SCLR (2d) 233 9. Jason D. Burke, “Shielding the Public Interest: What Canada Can Learn 1 from the United States in the Wake of National Post and Globe & Mail”, (Winter 2012) 35 Boston College International and Comparative Law Review 189

10. K.L. Sager and R.L. Wilcox, “Protecting Confidential Sources,” (Winter 1 2007) 33:2 Litigation 36 11. Lisa Taylor et al., “Understanding Canada’s New Shield Law for 23 Confidential Sources”, October 23, 2017, J-Source

Authority Cited at Paragraph 12. “Postmedia cuts staff and stops printing 9 newspapers” Canada Newswire 10 (June 26, 2018) 13. “Postmedia to Close Community Newspapers across southern Ontario,” 10 CBC News (November 27, 2017) 14. Public Policy Forum, “The Shattered Mirror News, Democracy and Trust 10 in the Digital Age” (January 2017) 15. Public Policy Forum, “The Sheltered Mirror Series: Mind the Gaps: 10 Quantifying the Decline of News Coverage in Canada (September 2018) 16. Québec, Commission d’Enquête sur la confidentialité des sources 3 journalistiques (Québec, Publications du Québec, 2017) 17. Report Overview: Québec, Commission d’Enquête sur la confidentialité 3 des sources journalistiques (Québec, Publications du Québec, 2017) 18. Reports chronicle devastation of local news, The Canadian Press 10 (September 25, 2018) 19. Robert Fife, Steven Chase, “Trudeau sought RCMP probe of cabinet leaks 1 on navy supply ship” (Globe & Mail, April 24, 2017) 20. Robert Fife, Steven Chase, Sean Fine, “PMO pressed Wilson-Raybould to 1 abandon prosecution of SNC-Lavalin; Trudeau denies his office ‘directed’ her” (Globe & Mail, February 7, 2019) 21. Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Lexis 28 Nexis, 2014) 22. Terry Pedwell, “Local news cut in half, not-for-profit funding models 10 emerging, reports say”, The Canadian Press (September 25, 2018) 23. “The Global Slump in Press Freedom”, The Economist (July 23, 2018) 10 24. UNESCO, Protecting Journalism Sources in the Digital Age, (2017) 5, 10, 14, 23 (UNESCO Publishing)

Legislation

Authority Section 1. Canada Evidence Act, RSC 1985, c C-5 39.1 Loi sur la preuve au Canada, L.R.C. (1985), ch. C-5 39.1 2. Criminal Code, R.S.C., 1985, c. C-46 488.01 Code Criminel, L.R.C. 1985, c. C-46 488.01 3. Journalistic Sources Protection Act, S.C. 2017, c. 22

Authority Section Loi sur la protection des sources journalistiques, LC 2017, c 22

4. Supreme Court Act, RSC 1985, c. 2(1), 38-40 Loi sur la Cour supréme, LSC 1985, ch. S-26 2(1), 38-40

APPENDIX A

Members of the Media Coalition

CMLA: Founded in 1994, CMLA is the only national organization of media lawyers in Canada. Its alternative name, Ad IDEM, is derived from the phrase, “Advocates In Defence of Expression in the Media.” CMLA is dedicated to the protection and enhancement of free expression in Canada and abroad, through public and professional education; advocacy and law reform initiatives; and cooperation with related professional organizations. CMLA members are lawyers representing the media, both traditional and digital, across Canada. Its members represent most of the major media organizations and their journalists across Canada, and also represent many international media organizations. Its members often work and communicate with other advocates for freedom of expression values around the world, and participate in international conferences, projects, reforms, and advocacy. The CMLA has been granted intervener status in most Supreme Court of Canada and other cases where freedom of expression or media law is at issue. It was also appointed amicus curiae by this Court in A.B. v. Bragg Communications Inc., 2012 SCC 46. CMLA has also made submissions, both oral and written, to House of Commons and Senate Committees, to the Canadian Judicial Council, to various Chief Justices and courts across the country, to the Department of Justice and to provincial Crown Prosecution Services in respect of various aspects of freedom of expression and the principle of open courts.

CTV: is an English-language broadcast television network in Canada first launched in 1961. It is owned by Bell Media Inc., a division of BCE, Inc. CTV is Canada's largest privately or commercially-owned network, and CTV News is the news division of CTV. CTV News is Canada's most-watched news organization both locally and nationally, and has a network of national, international, and local news operations. CTV News Digital properties reach approximately 8.9 million unique visitors per month and approximately 120 million total page

views per month. CTV news.ca and the CTV News apps host, print and broadcast stories from 16 local CTV News markets, plus national news programmes produced by CTV, such as CTV National News, W5, Power Play and Question Period.

The Globe and Mail: first began publishing as a national newspaper in 1844. It is one of Canada's oldest and most trusted sources for news and investigative reporting, and is operated by The Globe and Mail Inc. The Globe and Mail Inc. also publishes the www.globeandmail.com news website and Report on Business Magazine, both in hard copy and online. The Globe and Mail newspaper has won 166 National Newspaper Awards and 11 Michener Awards for public-policy reporting, the most of any newspaper in Canada. The Globe and Mail is the most-read newspaper in the country, with a weekly combined readership of 6.5-million in print and through its globeandmail.com website and digital platforms, which publish print and video news and current affairs content. The Globe and Mail's monthly Report on Business Magazine has approximately 1.6 million cumulative readers in both print and digital. The Globe and Mail also licenses its news content to third-party publishers, including online publishers.

Postmedia Network: publishes 15 daily metropolitan newspapers (nine broadsheets and six tabloids), a national newspaper, dozens of local community publications along with newspaper and destination websites. Postmedia’s daily newspapers are geographically diverse and well- established in the communities that it serves, several dating back more than 100 years.

Global News: is the multi-platform news and current affairs division of the Global Television Network in Canada, operated by Corus Television Limited Partnership. Global News produces award-winning local, regional, national and international news content for more than a dozen conventional television news stations across Canada, Corus Radio stations (AM news talk & music) from coast to coast, and its news website, Globalnews.ca. Global News’ early evening network news program “Global National,” is seen by an average of one million Canadians every day. Global News local TV newscasts in Vancouver, Edmonton and Calgary are market ratings leaders. In October, 2018, Globalnews.ca reached 105-million page views, 92-million visits, 44- million unique visitors, and 29-million video views. Global News’ web platforms include text, video and infographic storytelling, as well as commentary contributed by radio, television and

online journalists across the network. advises that protecting the identity of those sources is critical to its newsgathering and reporting process.

VICE: VICE is a digital media company, providing content for its websites vice.com/en_ca and news.vice.com/canada, among others, which publish news stories and a wide variety of other print articles and videos targeted toward a Canadian audience. VICE's target audience is youth, primarily the 18- to 34-year-old demographic. VICE's website and social media channels attract millions of unique visitors per month. The news division of VICE's parent company in the U.S. operates a network of websites and digital platforms, which publish and broadcast news stories online from more than 30 offices around the world. VICE also licenses its content to third-party publishers and broadcasters around the world.