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EVIDENCE - Privilege - Witnesses - Compelling attendance by subpoena - Setting aside

Friday, September 27, 2019 @ 12:42 PM  


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Appeals from a judgment of the Quebec Court of Appeal affirming a decision of the Quebec Superior Court setting aside a decision of the Court of Québec. The main appeal concerned the validity of a subpoena served on a journalist, the appellant, Denis, for the purpose of obtaining evidence in support of a motion for a stay of proceedings. Her testimony was likely to reveal the identities of certain of her confidential journalistic sources. Coté, together with several co accused, was charged with numerous offences, including fraud, breach of trust and bribery of officers, in relation to events that had taken place between 2000 and 2012. They were alleged to have set up an elaborate system of secret political financing in Quebec. Côté sought to have the proceedings stayed on the ground that they were abusive. He submitted that high ranking government representatives had, between 2012 and 2017, provided journalists with a significant quantity of confidential information for the purpose of prejudicing his co accused and himself. In his opinion, these leaks were intended, among other things, to deny him the right to a fair trial by judge and jury. Côté wished to adduce direct evidence of the identities of the those responsible for the leaks. He therefore served a subpoena on Denis, which she contested. The Court of Québec quashed the subpoena, concluding in particular that she did not know the identities of the sources in question. The Superior Court, on appeal, held that this conclusion was a palpable and overriding error, and, applying s. 39.1 of the Canada Evidence Act (CEA) anew, confirmed that the subpoena issued to Denis was valid. That decision was appealed to the Quebec Court of Appeal, which held, relying on the wording of the relevant provision as well as the provision’s purpose of efficiency and expediency, that it did not have jurisdiction to rule on the merits of the appeal. It accordingly granted Côté’s motion to dismiss the appeal. Denis was granted leave to appeal from both the decision of the Court of Appeal concerning jurisdiction and the decision of the Superior Court on the merits.

HELD: Appeal allowed in part. The Court of Appeal was right to find that it did not have jurisdiction to rule on the merits of Denis’s appeal. The right of appeal was an exceptional, statutory right that could not exist if no legislation provided for it. Further, where there are two levels of appeal, as in the case of summary conviction offences, they are provided for in legislation. In carrying out its plan to modernize the law by including s. 39.1 in the CEA, Parliament drew upon the various decisions rendered by the Court on this subject over the years. Although s. 39.1 CEA was based on several elements of the former common law scheme, the scheme it established is new law. The common law scheme included an exceptional privilege against disclosure. Journalists claiming this privilege had to show that it applied on a case by case basis. Where the test under s. 39.1 CEA is concerned, however, the journalist’s only burden is to prove that he or she is a “journalist”, and his or her confidential source is a “journalistic source”, as defined in s. 39.1(1). If the journalist discharges that burden, the opposing party is then required to prove that the conditions for judicial authorization of the disclosure are met. To be successful, the party must convince the court that the document or information at issue is so important that the balancing exercise weighs in favour of disclosure. In the courts below, the Crown claimed that the leaks had come from people at low levels of the government hierarchy who wanted to cause harm to the government and as a result, the information being sought by having Denis testify was of no consequence given that the motion was therefore certain to fail. It now maintained that the disclosure of new information altered the factual matrix as presented in the courts below. This change of position by the Crown precluded appellate review of the Superior Court’s decision on the merits. The case had to be remanded to the application judge pending completion of the investigation into the media leaks in order to safeguard the parties’ rights. Remanding the case to the application judge means that the parties must be restored to the positions they were in before the decisions of the courts below. The Superior Court’s order authorizing the disclosure of information was therefore set aside. The application judge must review the entire case, including the Crown’s new evidence, assessing it in light of the principles established by this Court on the scope and application of s. 39.1 CEA before ruling on the legality of the subpoena served on Denis.

Denis v. Côté, [2019] S.C.J. No. 44, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., September 27, 2019. Digest No. TLD-September232019016-SCC