OSCE media freedom representative welcomes passage of Canada’s new press shield law

VIENNA, 6 October 2017 – Canada’s new Journalistic Source Protection Act, known as Bill S-231, which was passed on Wednesday 4 October, was today welcomed by the OSCE Representative on Freedom of the Media, Harlem Désir. The legislation, which protects the confidentiality of journalistic sources, was adopted with the support of all three political parties. The bill was first introduced by Conservative Senator Claude Carignan in November 2016.

The new legislation, which amends the Canada Evidence Act, protects the right of a journalist to refuse to disclose information that identifies or is likely to uncover their source who has requested to remain anonymous.

Under the new law, Canada’s law enforcement agencies can only be granted search warrants or production orders for the disclosure of such information if a superior court judge decides there is no other “reasonable” means for them to acquire it and if the importance of the investigation outweighs the public interest in protecting a journalistic source. In addition, the new law reverses the burden of proof so that law enforcement agencies are now required to show why they require access to the information. The new law also allows the superior court judge to consult a special advocate who would be responsible for defending the interests of press freedom before the court.

“I congratulate the Canadian legislature on the passage of the country’s new ‘press shield law’,” said Désir. “I note that the new law, which is partly the result of a great campaign by civil society organizations, including the Canadian Journalists for Free Expression, brings Canada further into step with international human rights standards on the protection of journalistic sources.”

The new law has some shortcomings, as highlighted by civil society organizations, however. The definition of who is a journalist is limited and does not protect sources who are not anonymous. It therefore does not apply in the case of VICE News reporter Ben Makuch, who is currently seeking leave to appeal a court order requiring him to hand over his communications with an alleged ISIS fighter.

“While the new law reinforces Canada’s long-standing reputation as a defender of media freedom and freedom of expression, I hope it is but a first step towards a more comprehensive protection of all those who practice journalism and their sources in Canada,” said Désir.