Journalistic Sources Protection Act Slated to Become Federal Law

Bill S-231 will protect journalists’ confidential sources in almost all circumstances

Bill S-231, also known as the Journalistic Sources Protection Act, received royal assent on Oct. 18, amending both the Canada Evidence Act and the section of the Criminal Code that relates to the protection of journalistic sources.

The bill was first proposed in November of last year by Conservative Senator Claude Carignan of Quebec. It stipulates that journalists are not compelled to “disclose information or a document that identifies or is likely to identify a journalistic source” unless compelled to by a search warrant issued by a superior court judge, according to the Parliament of Canada website.

A professor of journalism at Kwantlen Polytechnic University, Mark Hamilton, explains that the bill’s passage into law will offer two important benefits for journalists.

The first is that now low-ranking judicial officials, including justices of the peace, are no longer able to order journalists to provide information that reveals their source. The second is that journalists no longer need to argue over why they must protect their sources. Rather, those who want to identify a source must now prove that the issue is of public interest, and that there is no other means of obtaining the source’s identity than issuing a warrant.

Hamilton says that this will dissuade some people from going after journalists and their confidential sources, including whistleblowers.

“It really raises the bar at that end,” he says. “You will see fewer people doing that.”

The bill was born out of a 2013 scandal in Quebec, where—according to The Globe and Mail—“police sought warrants to obtain the telephone records of a total of eight journalists in Quebec, sometimes going back five years, and to track a reporter using his cellphone.”

During the last federal election, the Liberal Party made addressing the issue a part of its campaign, and once the bill began its journey through the Senate and the House of Commons, it received support from all parties.

Hamilton believes that the passage of the bill “was overdue, [and] it was, to a degree, unprecedented … but I think all of the parties saw it was really important symbolically to support this.”

While the new law stipulates that a journalist must only surrender information related to their source if it’s deemed to be in the public interest and there’s no other way to obtain the information, Hamilton says that ultimately, “the interpretation is going to be up to the courts.”

He does, however, identify one flaw with the bill, in that it will not protect a journalist if they used a named source in their story. Hamilton cites a recent incident with a VICE reporter, who is being compelled to surrender their notes to the RCMP for a Supreme Court of Canada case, as an example.

Though Hamilton doesn’t think that the Journalistic Sources Protection Act will have much of an effect on how journalism is practiced in Canada, he supports the passage of the bill because he believes that protecting the confidentiality of journalistic sources is more important now than ever.

“The big effect it’s going to have is—knowing that the burden of proof now is on their side—the RCMP and other institutions are going to be much less likely to go after journalists and say, ‘Give us your notes or we’ll take you to court,’ because the journalist can now say, ‘Okay, fine. See you in court.’ It’s a very tough thing that they have to prove now.”