Protection of Journalist Records and Sources

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General Principles

See also: Special Search Warrant Issues

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.


2017, c. 22, s. 3.


CCC

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.

2017, c. 22, s. 3.


CCC