The Journalistic Sources Protection Act, also known as Bill S-231, received Royal Assent on October 18, 2017. According to the author of Bill S-231, the legislation aims to increase protection for freedom of the press, considered a pillar of democracy, and protected by s. 2 of the Canadian Charter of Rights and Freedoms.
The Bill implements the following changes:
Officers must give notice to a journalist or relevant media outlet before obtaining documents for examination or reproduction.
Journalists may object to disclosure of information that identifies or is likely to identify a journalistic source unless the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.
The Criminal Code is amended by the enactment so that Superior Court judges of criminal jurisdiction or judges under s. 552 have exclusive authority over warrants, authorizations, and orders relating to journalists.
The requester of warrants, authorizations, and orders must know the request is being made for a journalist. According to the author of the Bill, social media platforms allow for the proliferation of stakeholders in the news which may create confusion concerning the true profession of individuals. The enactment adds the notion of “recognition” of the profession as a subject of interest for law enforcement agencies.
A public servant who obtains a warrant for an individual without previous knowledge that the person is a journalist must immediately notify ex parte a judge who is qualified under the enactment to uphold, modify or cancel the original warrant. Until the judge reaches a decision, the public servant must refrain from examining or reproducing any obtained documents; also, the documents must remain sealed and inaccessible to the public.
Judges may order disclosure only if satisfied that there is no other way it can be reasonably obtained and that public interest relating to a criminal offence outweighs the journalist’s right to privacy.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.