2018 QCCQ 547, 2018 QCCQ 547

Unofficial English Translation Côté c. R. 2018 QCCQ 547 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC "Criminal and Penal Division" No.: 200-01-199659-164 DATE: February 12, 2018 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE ANDRÉ PERREAULT, J.C.Q. ______________________________________________________________________ MARC-YVAN CÔTÉ MARIO MARTEL FRANCE MICHAUD NATHALIE NORMANDEAU BRUNO LORTIE FRANÇOIS ROUSSY Applicants - Accused v.

HER MAJESTY THE QUEEN Respondent-Prosecutrix and ATTORNEY GENERAL OF QUEBEC Impleaded party and MARIE-MAUDE DENIS LOUIS LACROIX Interveners ______________________________________________________________________ JUDGMENT ON AN APPLICATION TO CANCEL THE SUMMONS OF JOURNALIST WITNESSES ON THE GROUNDS OF THEIR REFUSAL TO DISCLOSE INFORMATION OR DOCUMENTS THAT IDENTIFY OR ARE LIKELY TO IDENTIFY JOURNALISTIC SOURCES (

Section 39.1 of the Canada Evidence Act , RSC 1985, c.

C-5) ______________________________________________________________________ [ 1 ] In the context of a criminal investigation and resulting criminal charges laid against the six co-accused, documents and information arising from this and other investigations concerning some of the accused found their way into the hands of journalists, who published them. [ 2 ] The Court has before it an application to stay proceedings due to abuse of process based on conduct of the State that does not pose a threat to the fairness of the trial but risks undermining the integrity of the judicial process.

Among other things, the applicants invoke the number of leaks, their consequences, their origin, and the complete lack of reaction by the State to these leaks. By their application, the co-accused-applicants seek to force the two journalists who published these documents and this information to testify. They hope to thus obtain their sources and trace them back to the person or persons within the State who contributed to the leak.

[ 3 ] The two journalists seek the cancellation of their summons, invoking protection of their journalistic sources.

BACKGROUND [ 4 ] To better understand what led the applicants to become interested in the sources of the journalistic leaks in this case, it is necessary to set out the chronology of events to situate them in context and explain the relationships between the information and the documents, on the one hand, and this case and the applicants, on the other. [ 5 ] The six co-accused are facing some of the following 14 counts set out in the indictment: fraud, breach of trust, conspiracy to commit fraud and/or breach of trust, fraud on the government, bribery of judicial officers, and municipal corruption.

The total period covered by the 14 counts starts on January 1, 2000, and ends on December 31, 2012. [ 6 ] The Crown alleges that Marc-Yvan Côté, with certain accomplices working for the engineering firm Roche, organized a covert financing system for the benefit of Nathalie Normandeau, then the Minister of Municipal Affairs, Regions and Land Occupancy (hereinafter the “MAMROT”) and MNA for Bonaventure. [ 7 ] It is alleged that in exchange for this covert financing, Roche fraudulently obtained subsidies for its clients from the MAMROT to complete certain projects related to water quality and that in other cases, the project subsidies were increased. [ 8 ] The charges in this case arise from two police investigations, Operations JOUG and LIERRE. [ 9 ] Operation JOUG was concerned with MAMROT subsidies that Roche is alleged to have fraudulently obtained on behalf of its clients, municipalities in eastern Quebec. [ 10 ] Operation LIERRE was concerned with a subsidy from the MAMROT to the Ville de Boisbriand, also a client of Roche. [ 11 ] Operations JOUG and LIERRE followed Operation FICHE, which concerned Roche’s alleged collusion and corruption in obtaining a professional mandate from the Ville de Boisbriand in the context of upgrading its water treatment plant. [ 12 ] On April 7, 2010, in the context of the FICHE investigation, the police officers involved in Operation Marteau searched Roche’s offices. [ 13 ] On February 3, 2011, also in the context of the FICHE investigation, the police arrested several individuals, including France Michaud, one of the six co-accused in this case, and charged them with offences related to collusion and corruption. [ 14 ] On April 12, 2012, the television show Enquête broadcast a report by journalist Marie-Maude Denis about Operation FICHE on Radio-Canada. [ 15 ] Among other things, the report recalled the arrest on February 3, 2011, of Roche Vice-President France Michaud, one of her engineer colleagues at Roche, Gaétan Morin, as well as Claude Brière, Rosaire Fontaine, former mayor of Brossard Sylvie Saint-Jean, Lino Zambito, and his father.

The report also referred to the arrest, two weeks later, of former mayor of Boisbriand Robert Poirier. [ 16 ] The report consisted of video and audio excerpts from the interrogations by investigators of the five persons arrested, including France Michaud. [ 17 ] It was reported that the investigation lasted 17 months and that there were some 60 witnesses and thousands of pages of documents

that led to the arrest of 8 people. [ 18 ] The journalist stated that she had obtained a portion of the evidence against them. A paper investigation report bearing the Sûreté du Québec letterhead was shown. [ 19 ] The report also referred to a letter found during a search conducted by the Sûreté du Québec at Roche’s premises in 2010. An excerpt was shown on screen from a letter dated December 2, 1994, addressed to Marc-Yvan Côté from one of Roche’s senior officers, whose name was blurred out.

Excerpts from the letter were shown, with an emphasis on those identifying political contributions as a means of obtaining contracts. [ 20 ] The report presented an audio and video excerpt from France Michaud’s interrogation concerning this letter. Excerpts from a statement made by a Roche engineer whom France Michaud supervised were shown on screen.

The journalist noted that, according to the evidence obtained by Marteau, France Michaud actively participated in the financing of political parties on behalf of Roche. [ 21 ] The report also referred to a statement made by a former employee of Roche, Gilles Cloutier, to Sûreté du Québec police officers, a statement of a high-ranking civil servant at the Ville de Boisbriand, and statements made by employees of BPR-Triax and Roche, from which certain excerpts were cited. [ 22 ] The report then showed a list, found by the police at Infrabec’s premises, identifying potential bidders for the construction of the plant.

The list was allegedly sent to Infrabec by Roche during the call for tenders. [ 23 ] Other documents portrayed as arising from the investigation were shown on screen. [ 24 ] The fact that Nathalie Normandeau was the Minister responsible for the Boisbriand plant subsidies was noted. [ 25 ] The report also showed an excerpt from a letter from Nathalie Normandeau’s chief of staff, Bruno Lortie, another co-accused, describing a meeting held in June 2006 between France Michaud, Sylvie St-Jean, and Nathalie Normandeau about obtaining a subsidy. [ 26 ] The journalist noted that, according to the police evidence, France Michaud had boasted about her political contacts to promote Roche’s candidacy with the Ville de Boisbriand.

An excerpt from the police interrogation of France Michaud in this regard was also broadcast. [ 27 ] The members of the permanent anti-corruption unit (UPAC) were not surprised by this report and the documents used because documents had been provided to counsel for the accused in Operation FICHE during the disclosure of evidence. [ 28 ] On May 11, 2012, the Superior Court ordered the Société Radio-Canada to remove this report from its website to avoid negatively affecting the upcoming trial of France Michaud and the co-accused. [ 29 ] In December 2012, Investigator Mathieu Venne became the lead investigator in the JOUG matter. [ 30 ] In early 2013, Operation JOUG was presented to the investigators of the Commission of Inquiry on the Awarding and Management of Public Contracts in the Construction Industry (hereinafter the “Charbonneau Commission”). [ 31 ] On January 2014, the UPAC police officers searched Roche’s offices again. [ 32 ] On February 27, 2014, police officers, including Investigator Venne, went to Marc-Yvan Côté’s home and his business and

searched the premises. [ 33 ] During these searches, the police seized documents and computer equipment belonging to Marc-Yvan Côté, among other things. [ 34 ] In the ensuing months, police officers analyzed the content of the seized computer equipment. [ 35 ] When reviewing the file, Investigator Venne paid particular attention to a series of emails that Marc-Yvan Côté apparently exchanged with certain officers of Premier Tech about obtaining a subsidy. [ 36 ] The emails allegedly show that Marc-Yvan Côté used his friendship with Minister Sam Hamad to obtain certain privileged information, get the file moving, and obtain significant subsidies for Premier Tech. [ 37 ] Investigator Venne prepared an investigation report concerning this event ([ translation ] “the Sam Hamad file”) because he believed there had been wrongdoing. [ 38 ] On May 6, 2014, the police searched Roche’s Gaspé office. [ 39 ] On November 21, 2014, the television show Enquête revealed that UPAC investigators were looking into the roles of former Premier Jean Charest and businessman Marc Bibeau in the implementation of a covert financing system.

This police operation was called MÂCHURER. [ 40 ] Investigator Venne saved everything he had gathered concerning the connection between Marc-Yvan Côté and Sam Hamad on the U drive of the Direction des enquêtes sur la corruption (corruption investigation department). He then prepared an alert report.

He saved the emails on a CD-ROM, which he gave to Lieutenant Pinet, the officer in charge of the Centre de gestion des signalements (hereinafter the “alert management centre”). [ 41 ] On January 27, 2015, Investigator Venne sent his investigation report on the Sam Hamad file to his superior, Lieutenant Benoît Pinet, who opened a file on this aspect the next day. [ 42 ] In February 2015, Investigator Venne insisted on several occasions that the Sam Hamad file be given careful consideration. The case managers informed him that this aspect would not be explored because they did not see anything concrete.

Investigator Venne’s team leader, Sergeant Geneviève Leclerc, was of the view that, after investigating JOUG for four years, it would not be appropriate to expand the investigation in this way and thought instead that if it was necessary to look into this aspect, it should be the subject of a separate investigation. [ 43 ] In view of Investigator Venne’s insistence, the managers decided to add the Sam Hamad file to the JOUG file so that they could obtain the prosecutors’ opinion. [ 44 ] On February 16, 2015, the JOUG file was submitted to the Bureau de la lutte à la corruption et à la malversation (the anti- corruption and malfeasance office) for review.

Over the following weeks and months, no request for additional investigations in the Sam Hamad file was made. [ 45 ] In July 2015, while his team leader, Sergeant Geneviève Leclerc, was absent, Investigator Venne tried to renew Lieutenant Pinet’s interest in the Sam Hamad file. [ 46 ] On Saturday, August 8, 2015, from 11:07 p.m. to 11:29 p.m., an unidentified person used Investigator Venne’s password to access the JOUG file server (“UO 4200 ” ) and consult documents. One of the files accessed contained six of the seven emails broadcast during a

Radio-Canada report on March 31, 2016.

The Court will return to this. [ 47 ] The entire anti-corruption office had access to the JOUG investigation server. [ 48 ] On December 10, 2015, a report by Marie-Maude Denis entitled “ Ratures et ruptures ” ([ translation ] “deletions and breach”) was broadcast on the Radio-Canada show Enquête . [ 49 ] The show addressed the dissenting opinion of Commissioner Renaud Lachance of the Charbonneau Commission, based on handwritten documents he prepared and emails the commissioners exchanged during their deliberations. [ 50 ] During the report, excerpts from the drafts exchanged among the commissioners and Commissioner Lachance’s handwritten comments concerning Bruno Lortie were quoted.

Next, Nathalie Normandeau’s trial was referred to as an example. It was noted that the majority of the passages struck out by Commissioner Lachance concerned Minister Nathalie Normandeau and her management of the subsidy program for water treatment plants. Excerpts that Commissioner Lachance wanted to correct were quoted. [ 51 ] The report received extensive media coverage. [ 52 ] On February 29, 2016, counsel for the department of criminal and penal prosecutions (DCPP) asked Investigator Venne to conduct further investigations.

In view of the number and nature of the additional investigations requested, Investigator Venne said that he needed a month. [ 53 ] In early March 2016, counsel for the DCPP were ready to file charges in this case, but the police were not. [ 54 ] On March 11, 2016, Investigator Venne told Mtre Claude Dussault of the DCPP that he wanted a month to complete the further investigations. [ 55 ] Sergeant Leclerc was informed that they were being asked to make the arrests the following week.

At that time, her team was working on another file involving an active civil servant, and she was of the view that the rush to proceed with the arrests was not justified. She asked her superior, Mr. Cossette, to postpone the arrests. He refused to allow the arrests to proceed on Monday, March 21, 2016. [ 56 ] On Monday, March 14, 2016, Investigator Venne was informed by his superior, Ms. Leclerc, that the arrests in this case had been moved up to the following week. Later, he learned that they would instead take place on Friday, March 18. It was changed again.

He was informed that the arrests would take place on Thursday, March 17. Counsel did not think it was necessary to wait for the results of the additional investigations. [ 57 ] It appears that the date chosen, March 17, was also the date of presentation of the Quebec government’s budget. [ 58 ] Investigator Venne did not know where the orders to proceed with the arrests on 17, 2016, came from. For Sergeant Leclerc, this was the first time that an arrest date was not agreed upon between the police and counsel and that the decision was made unilaterally.

She was not surprised that the date was changed from Friday, March 18 to Thursday, March 17, however, because two-thirds of police officers are off on Fridays and conducting this type of operation on a Friday is therefore expensive. [ 59 ] The March 17, 2016, arrests in this case caused considerable media hype that several UPAC police officers found excessive and unfair for the arrested persons. Investigator Venne, for his part, was shocked. [ 60 ] The morning of March 19, 2016, journalist Louis Lacroix received a telephone call from a person using the name Pierre, who

asked to speak to the journalist confidentially. [ 61 ] During the conversation, which lasted about half an hour, Pierre wanted to discuss Nathalie Normandeau’s arrest. He said that the evidence gathered by UPAC was based solely on the testimony of her former chief of staff, Bruno Lortie. Pierre provided a certain analysis of the situation concerning Jean Charest, Bruno Lortie, Nathalie Normandeau, Marc-Yvan Côté, UPAC boss Robert Lafrenière, and Philippe Couillard. [ 62 ] Louis Lacroix noted that Pierre was very familiar with the ins and outs of the government.

He also noted that Pierre had obtained his cellular telephone number, which is not listed anywhere except for a press gallery list. [ 63 ] Pierre offered to meet Louis Lacroix the following Tuesday or Wednesday, as he would be in Quebec City. He suggested a restaurant far from the scrutiny of Parliament Hill. Pierre told Mr. Lacroix that he would call him back on Monday, March 21, 2016. [ 64 ] On the morning of Monday, March 21, 2016, shortly before 9:00 a.m., Pierre called the journalist Lacroix. Pierre told him that he had started to consult the evidence gathered by UPAC since their first conversation.

Pierre said that there were 1500 pages of affidavits, electronic surveillance, and other testimony gathered by the police, and offered to send him all the files on a CD-ROM. Pierre asked Lacroix to copy the files and destroy the disk because it was encoded and could be traced back to him if it was found. Pierre was also concerned that Louis Lacroix’s office could be searched. [ 65 ] Pierre told Lacroix he would call him back the next morning to set up a meeting time. When Louis Lacroix’s

article was published on April 5, 2016, Pierre, to whom we will return, had not called back. [ 66 ] On March 21, 2016, Sergeant Leclerc met with Investigator Venne. She found him to be still in shock. He was emotional to the point of tears. [ 67 ] On March 31, 2016, journalist Louis Lacroix telephoned UPAC, asking for information.

He asked Anne-Frédéric Laurence, who was in charge of communications for UPAC, if the evidence in the JOUG file was saved on a CD-ROM or a hard disk. [ 68 ] In view of the unusual nature of this request, Anne-Frédéric Laurence immediately informed Sergeant Leclerc, who, in turn, informed Investigator Venne. [ 69 ] Louis Lacroix also contacted the DCPP to ask about certain information leaks in the JOUG file. [ 70 ] In the hour following these two calls, Pierre contacted Louis Lacroix and told him that he knew he had called UPAC and the DCPP. [ 71 ] On March 31, 2016, Radio-Canada broadcast a report by journalist Marie-Maude Denis entitled “ Notre ami Sam ” ([ translation ] “Our Friend Sam”) on the show Enquête .

First, the report recalled the 2003 candidacy of Sam Hamad, who until just shortly before then was Vice-President at Roche. The connections between Sam Hamad and Marc-Yvan Côté were mentioned.

The report revealed emails for the admitted purpose of showing that Marc-Yvan Côté was involved in the political financing of Sam Hamad. [ 72 ] Also discussed were the government subsidies received by Premier Tech – a company located in the Lower Saint-Lawrence region specialized in horticulture, industrial equipment, and biotechnology – for the purchase of a competitor. [ 73 ] The journalist specified that the emails obtained described the steps Sam Hamad took and the information he provided about the confidential deliberations of the Treasury Board.

[ 74 ] The report included six of the seven emails from one the files indicated as having been modified on Investigator Venne’s U drive on August 8, 2015, which he says he did not realize until May 2017. [ 75 ] Reference was also made to emails exchanged between President and Chief Operating Officer of Premier Tech Jean Bélanger, Vice-President of corporate development of Premier Tech Yves Goudreau, Marc-Yvan Côté, presented as having been Vice-Chair of the Board of Directors of Premier Tech until his arrest on March 17, 2016, and Sam Hamad, elected in 2003 and having served almost continuously as a member of Cabinet. [ 76 ] Next, the report mentioned that on September 7, 2011, Sam Hamad became Quebec’s Minister of Economic Development, Innovation and Export Trade. [ 77 ] The report then emphasized another subsidy that came directly from Minister Sam Hamad, which according to the report was for eight million dollars. [ 78 ] Emails exchanged on this subject between Marc-Yvan Côté, Jean Bélanger, and Sam Hamad’s deputy chief of staff were again mentioned. [ 79 ] On March 31, 2016, Investigator Venne was shocked to learn that journalist Marie-Maude Denis had access to six emails concerning the Sam Hamad matter, which were saved on his U drive.

He was well aware that these documents had not yet been disclosed to the accused or their counsel in this case. [ 80 ] The report received extensive media coverage. [ 81 ] This media frenzy led to the downfall of Sam Hamad’s ministerial portfolio and triggered an inquiry by the Lobbyism Commissioner and another by the National Assembly Ethics Commissioner. [ 82 ] On April 1, 2016, Investigator Venne once again wrote to his team leader, Sergeant Leclerc: [ translation ] Considering everything that is going on, do you think they will tell us to dig deeper into this matter? [ 83 ] The prosecution then entertained the idea of seeking an injunction to prevent the rebroadcast of the report but decided against it because it did not know the source of the leak and did not think that the report would jeopardize the fairness of the trial. [ 84 ] On April 5, 2016, the magazine L’Actualité published an

article by journalist Louis Lacroix entitled “ Qui veut faire dérailler le procès de Nathalie Normandeau? ” ([ translation ] “Who is trying to derail Nathalie Normandeau’s trial?”). [ 85 ] The journalist recounted the conversation he had with Pierre on March 19, as described above. [ 86 ] Louis Lacroix added in the

article that one of his colleagues, with whom Pierre had also spoken, told him that Pierre said he was aware that Louis Lacroix had made calls to the DCPP and UPAC asking whether the evidence was saved on disk. [ 87 ] Louis Lacroix added that three other journalists, including Michel Hébert of the Journal de Montréal , had received the same call from “Pierre” but nothing after that. He made the following comment:

[ translation ] Clearly, “Pierre” is not a source but someone who wants to use journalists to further his case. That is why I feel comfortable telling this story. [ 88 ] Louis Lacroix then speculated about Pierre’s true identity and commented on certain scenarios concerning his motivation.

He said that Pierre had called Nathalie Normandeau and that the people around her had distanced themselves appropriately. [ 89 ] On April 13, 2016, the Sûreté du Québec’s department of internal investigations and disciplinary proceedings launched an investigation to identify the source of the leak. [ 90 ] On April 19, 2016, the TVA network obtained documents found during the search of Marc-Yvan Côté from the Coalition Avenir Québec, including a list of exhibits on Sûreté du Québec letterhead. [ 91 ] When asked about the identity of the source that provided these confidential documents to him, the MNA for La Peltrie answered: [ translation ] People who have an interest in asking these questions, who have an interest in obtaining the right answers, and who perhaps have doubts about what has been said in the public sphere. [ 92 ] That same day, Investigator Venne was informed that the National Assembly Ethics Commissioner wanted to inquire into the allegations made in the March 31, 2016, investigative report concerning the role that Sam Hamad played in granting a subsidy to Premier Tech.

He was profoundly shocked by this news. [ 93 ] On April 19, 2016, the Minister of Justice and Official Opposition critic expressed concern at the turn of events. [ 94 ] The Director of Criminal and Penal Prosecutions, Mtre Annick Murphy, said that she was also concerned, that an investigation was in progress, and that the leak could not have come from her department. [ 95 ] On April 20, 2016, the accused appeared and obtained a copy of the initial disclosure of evidence. [ 96 ] On April 21, 2016, counsel for Marc-Yvan Côté wrote to the prosecution asking essentially what measures had been taken and were being considered to put a stop to the leaks of evidence to the media and asking it to lay the appropriate charges against Radio- Canada and TVA, including contempt of court. [ 97 ] On April 22, 2016, the magazine L’Actualité published an

article by journalist Louis Lacroix entitled “ Il y a plus d’un « Pierre » impliqué dans la fuite du dossier Normandeau ” ([ translation ] “There is more than one ‘Pierre’ involved in the Normandeau case leak”). [ 98 ] The

article pointed out that UPAC Commissioner Robert Lafrenière had stated during a parliamentary committee meeting the previous Wednesday evening that the leaks had been taken very seriously by his department and that they had asked the Sûreté du Québec to investigate in one case, which it was now doing. He also emphasized the measures taken by his office to avoid possible leaks. [ 99 ] The journalist noted that Pierre had contacted him again the day after his first

article was published on April 5, 2016, and four

other times over the following days. Pierre told him that his

article had the effect of making everyone act cautiously and that his and his accomplice’s intention was not to derail Nathalie Normandeau’s trial. He said that the “big fish” was Jean Charest. [ 100 ] When it came time to

schedule an appointment, Pierre said that the other person was uncomfortable. [ 101 ] Louis Lacroix reported that the last time he spoke to Pierre was on Friday, April 8, 2016 – 24 hours before a meeting scheduled in Montreal. During that conversation, Pierre told him that, as he was leaving for lunch, a colleague intercepted him and asked him if he was still going to meet Lacroix the following afternoon downtown. Pierre did not attend that meeting. [ 102 ] Louis Lacroix noted the telephone number displayed on the screen at the time of this call on April 8.

It corresponded to the number of a community education centre. [ 103 ] On April 22, 2016, at the request of the Sûreté du Québec’s senior staff, Sergeant Michel Comeau of the Sûreté du Québec’s Direction des norms professionnelles (professional standards department) was appointed to investigate obstruction of justice involving a leak of police information to the media.

At issue were the emails seized by UPAC from Marc-Yvan Côté’s home on February 27, 2014, in connection with JOUG and broadcast during the show Enquête on March 31, 2016, and the emails and documents from the JOUG file that Pierre told several journalists he had in his possession. [ 104 ] On April 25, 2016, l’Actualité published an

article by journalist Louis Lacroix entitled “ Pourquoi dévoiler l’existence de « Pierre »? ” ([ translation ] “Why reveal ‘Pierre’s existence?”). Lacroix said that Pierre was never angry when the journalist published the details of their conversations. He added that Pierre had contacted close to a dozen other journalists and promised them documents but never provided them. [ 105 ] Over the following weeks, the applicants found out upon reading a

summary of the evidence prepared by the Crown that the events covered in the report on the show Enquête on March 31, 2016, concerning the Sam Hamad file were a substantial part of the acts alleged against them. [ 106 ] On May 3, 2016, the Crown answered the April 21, 2016, email from counsel for Marc-Yvan Côté, simply stating that the applicants should file a complaint with the competent authorities to put a stop to the leaks but failing to answer the applicants’ question concerning the possible legal proceedings that would be taken against the media outlets. [ 107 ] On May 25, 2016, the internal investigators met with Lino Zambito, a former construction contractor and Crown witness in the LIERRE matter.

Zambito allegedly had strong ties to the police and the media.

According to him, the media leaks were orchestrated by UPAC’s senior management for oblique reasons. [ 108 ] On July 4, 2016, counsel for Marc-Yvan Côté, who was not satisfied with the Crown’s answers, reiterated his request that the fruits of the investigation be revealed to him so that the source of the leaks of which he was a victim could be identified and noted that his question about the measures that would be taken against the media outlets responsible for publicizing evidence had not been answered. [ 109 ] On July 5, 2016, the applicant and his co-accused announced their intention to be tried before a judge and jury, with a preliminary inquiry. [ 110 ] On July 28, 2016, the Crown refused to disclose the measures taken to find the source of the leaks and again suggested that the applicant file a complaint against the media outlets. [ 111 ] On March 30, 2017, the Journal de Montréal published a series of emails from the disclosure of evidence showing that Marc- Yvan Côté apparently helped Philippe Couillard to a certain degree in the Liberal Party’s leadership race.

[ 112 ] The Court notes that there is no indication of how the Journal de Montréal obtained these documents. [ 113 ] On March 31, 2017, Marc-Yvan Côté, through his counsel, asked the Crown to take concrete action to stop the leaks, failing which he would present an application to stay proceedings once the judge who would preside over his trial was appointed. [ 114 ] On April 4, 2017, the Crown acknowledged receipt of this request and promised to answer in the coming days. [ 115 ] On April 5, 2017, UPAC announced that an internal investigation would be conducted to identify the source of the transmission of confidential documents that led to the public disclosure of certain elements of an active criminal investigation. [ 116 ] On April 24, 2017, the Journal de Montréal published an

article entitled “ Exclusif : Jean Charest et Marc Bibeau surveillés de près par la police jusqu’en 2016 ” ([ translation] “ Exclusive: Jean Charest and Marc Bibeau under close police surveillance until 2016”). The

article revealed that the Journal de Montréal ’s investigation office had discovered that two men and some thirty persons including former Minister Line Beauchamp and the Quebec Liberal Party’s former head of fundraising, Violette Trépanier, were targeted by UPAC in a criminal investigation referred to as MÂCHURER. [ 117 ] The

article described certain physical surveillance measures taken with respect to Marc Bibeau and Jean Charest. It also stated that, according to several sources, the MÂCHURER investigation arose from UPAC’s Operation LIERRE, which led to the arrest of Nathalie Normandeau and six other people in 2016. It referred to the police theory whereby the large engineering and construction firms made significant illegal political contributions in exchange for government contracts and subsidies under the Liberal reign between 2003 and 2012.

It reproduced an organizational chart from Operation MÂCHURER on which Marc Bibeau, Violette Trépanier, Jean Charest, and engineering firms, including Roche, were identified. It reported on what was said by the witnesses that UPAC met with. It also included records prepared by UPAC concerning Jean Charest and Marc Bibeau, in which the journalists said they themselves had blurred out considerable personal information, and the list of Canadian border crossings by Jean Charest as of 2003 provided to UPAC by Border Services during Operation MÂCHURER and dated January 19, 2016. [ 118 ] The

article also included an application form for the disclosure of personal information from Passport Canada relating to Jean Charest’s passport, filled out by UPAC investigators. [ 119 ] Finally, excerpts were cited from a statement given to UPAC by a witness on January 21, 2016, and an image of the first two pages of the statement was reproduced. [ 120 ] This

article was shared at least 8,300 times on Facebook alone. [ 121 ] The news was repeated by all Quebec media outlets. [ 122 ] On April 25, 2017, the Journal de Montréal published a new

article stating that the investigation concerning Charest and Bibeau should be completed before Christmas 2016. The

article included a

schedule of the various deadlines established in the file. [ 123 ] This news was repeated in the media. [ 124 ] That same day, the DCPP stated that it had not received the file concerning the MÂCHURER investigation. [ 125 ] The prosecution admits that only UPAC employees had access to all this information, given that (1) because the investigation was in progress, no defence counsel had obtained a copy, (2) the DCPP had not received the file, (3) the documents all clearly came directly from the police, and (4) only the police could have been aware of the deadlines established.

[ 126 ] In view of the new leaks, counsel for Marc-Yvan Côté, who was still waiting for an answer to his March 31, 2017, email, wrote to the Crown. At the outset, he again announced his intention to file an application to stay proceedings because of the information leaks and requested certain information for the purpose of this application.

In addition, he provided certain leads to the Crown that might steer it in the right direction in its search for the source of the leak. [ 127 ] As of April 25, 2017, UPAC investigators’ file access was restricted to the files of their team. [ 128 ] On April 26, 2017, the Crown acknowledged receipt of the most recent correspondence from counsel for Marc-Yvan Côté and said that they would get back to him soon. [ 129 ] According to Investigator Venne, in May 2017, while conducting research on his computer in preparation for a meeting with Investigator Comeau, he noticed that the JOUG files on his U drive, which was shared with the UPAC investigators, had been modified on August 8, 2015, between 11:07 p.m. and 11:29 p.m.

Investigator Venne usually left his computer at his workstation with the token, which was required to access the computer, plugged in to the USB port. To his knowledge, however, nobody else but him knew the password associated with his token. [ 130 ] In May 2017, an administrative investigation led by retired investigators was launched to investigate the UPAC leaks. [ 131 ] On May 16, 2017, the TVA network broadcast emails from the evidence concerning the relationship between the former Chief Administrative Officer of the Ville de Gaspé and current MNA, Gaétan Lelièvre, and Roche.

These events were related to Operation JOUG. [ 132 ] On May 31, 2017, the TVA network again broadcast emails from the evidence establishing a friendship between Marc-Yvan Côté and Philippe Couillard. [ 133 ] They showed one email from the disclosure of evidence and referred to another. [ 134 ] This news was repeated in the media. [ 135 ] On June 1, 2017, the Journal de Québec published more emails between Philippe Couillard and Marc-Yvan Côté from the evidence.

There was no indication of how the journalist obtained this information. [ 136 ] This latest incident was relayed by the press. [ 137 ] In June 2017, Operation A was launched. It concerned the leaks in the “ Anguille sous Roche ” ([ translation ] “Something Fishy”) and “ Notre ami Sam ” Radio-Canada reports and the leaks from MÂCHURER on April 24, 2017, in the Journal de Montréal .

Police officers from the anti-corruption team oversaw the Operation A investigation. [ 138 ] On June 20, 2017, the prosecution answered the April 21, 2016, and March 31, 2017, requests by reiterating that Marc-Yvon Côté should file a complaint regarding the leaks with the competent authorities.

The prosecution subsequently disclosed some of the information the applicants requested on April 26, 2017, to support their application to stay proceedings due to abuse of process. [ 139 ] On June 21, 2017, the prosecution refused to provide reasons for insisting on a trial before a judge and jury. [ 140 ] On June 29, 2017, Marc-Yvan Côté announced his intention to be tried by a judge without a jury.

[ 141 ] Over the summer, the applicant’s co-accused indicated their intention to also be tried by a judge without a jury. [ 142 ] For the entire summer of 2017, the Crown objected to the applicants being tried before a judge without a jury but gave no explanation for its position. [ 143 ] On September 8, 2017, the Honourable Richard Grenier J. of the Superior Court ruled that the file should be referred back to the Court of Quebec so that the applicants could be tried before a judge without a jury. [ 144 ] On September 11, 2017, in response to a letter from counsel for Marc-Yvan Côté, the DCPP wrote to defence counsel and sent them a letter dated August 8, 2017, from Captain Duquette of the department of internal investigations and disciplinary proceedings stating that the source of the leaks in JOUG and LIERRE could not be found and that the police file in this regard was closed. [ 145 ] The Court notes that this is the conclusion set out in Michel Comeau’s report dated September 13, 2017, which he signed on that date, and that the date of verification made official by Michel Pagé’s signature was September 17. [ 146 ] On September 13, 2017, the Journal de Québec published information concerning a meeting between Éric Tétreault and the UPAC investigators in the context of Operation MÂCHURER. [ 147 ] On September 14, 2017, Marc-Yvan Côté requested the investigation file on the leaks referred to in the DCPP’s email of September 11, 2017. [ 148 ] On October 25, 2017, the MNA for Chomedey and Chair of the Committee on Institutions, Guy Ouellette, was arrested by UPAC. [ 149 ] UPAC claimed it was trying to find the leaks in the MÂCHURER file.

To date, no charges have been laid. [ 150 ] With respect to the application to stay proceedings due to abuse of process, the Court heard the testimony of Stéphane Bonhomme, a police officer with UPAC since 2011 at the time of his suspension on October 25, 2017.

He had done some work in the FICHE file at the time of the search at Infrabec but did not work in the LIERRE, JOUG, or MÂCHURER files at all. [ 151 ] At UPAC, Bonhomme worked at the alert management centre, whose mandate is to receive alerts and assess whether they fall under UPAC’s jurisdiction before reporting them to the Commissioner. [ 152 ] Bonhomme denied having participated directly or indirectly in any leak whatsoever. He said that he did not know who the source of the leaks was. [ 153 ] On October 25, 2017, Bonhomme’s home was searched.

Lieutenant Grenier-Lafontaine prepared an inventory of the items found, including computer media from Operations LAURÉAT and FAUFIL and a hard disk containing the database from Operation NEPTUNIUM provided by UPAC’s technology support department when the data was extracted. It should be added that Bonhomme played no role in NEPTUNIUM or FAUFIL. He had worked in LAURÉAT for a period, but there was no legitimate explanation for the presence of items from these operations in his home. Also found were two tracking tables, prepared on Friday, September 1, 2017, and Friday, October 6, 2017.

These tables were used to monitor developments in the investigation files and contained sensitive information. The only ones who had access to them were the three people in charge of the module, the captain, the coordinators (including Bonhomme), and two assistants. [ 154 ] Also, a document containing a list of all the office’s files, a

summary of each file, and the people involved was found in one of Bonhomme’s closets.

[ 155 ] Bonhomme’s dissatisfaction with his superiors was well known. He had made some disparaging remarks. He acknowledges having called one of his superiors an imbecile. He also distributed a caricature of his boss, the UPAC Commissioner, represented as a slow-speaking turtle. Bonhomme was not surprised that there were leaks. [ 156 ] Bonhomme did not remember that in early 2015, his boss, Pinet, gave him a CD-ROM concerning JOUG and LIERRE. It disappeared and was never found. [ 157 ] Bonhomme explained that he had inadvertently brought the Friday tables home a week or two before the search.

He admitted that they should not have been removed from the office. He said that he subsequently forgot to bring them back. He denied that certain documents found in his home were there. He said he did not know who Pierre was. [ 158 ] Retired Sûreté du Québec police officer Richard Despaties also testified before the Court. After retiring from the Sûreté du Québec in 2008, Despaties was hired by UPAC as a civilian with peace officer status. He was an investigator-analyst. He was relieved of his duties on July 25, 2016, and his employment was terminated on October 18, 2016.

He attributes his dismissal to a complaint made by Annie Trudel, who wanted UPAC to investigate the Ministère des transports. According to him, it was thought that he had incited Trudel to file a complaint. He says he was fired because he is alleged to have disclosed information, but he claims that he did not have access to JOUG, LIERRE, or MÂCHURER. [ 159 ] Despaties says that he had access to the premises of the alert management centre for approximately three weeks in February 2016.

He knew Bonhomme, however, and they kept in touch after Despaties’s dismissal. [ 160 ] Despaties denies having participated directly or indirectly in the leaks. He says he does not know who Pierre or the source of the leaks is. [ 161 ] The Court also heard the testimony of Guy Ouellette, MNA for Chomedey. From Ouellette’s testimony, the Court accepts that he knew Richard Despaties but not Bonhomme or Venne. He denies having given UPAC documents to journalists.

To his knowledge, he has never spoken to Pierre. [ 162 ] Although the investigation in Operation A was not finished at the time of hearing the witnesses for the purposes of this decision on February 2, 2018, Richard Despaties and Stéphane Bonhomme were persons of interest from the start of the investigation. Lieutenant Grenier-Lafontaine, who led the investigation in Operation A, noted that Despaties was unhappy about having been transferred to UPAC in January 2016 and that Bonhomme’s superiors had met with him because of his performance. Bonhomme had access to the G drive and all the Operations.

The investigation unearthed telephone records revealing certain discussions between these two individuals. She also said that on June 28, 2017, Despaties was relieved of his duties at UPAC and has not had access to UPAC’s computers since 2016; he had access to information in the UPAC offices. [ 163 ] She added that the investigation of Lino Zambito is not finished but the telephone records have sparked interest. [ 164 ] She has already ruled out Investigator Venne as a person of interest.

The investigation revealed that he did not have a sufficient motive, and he was never mentioned in the discussions with Bonhomme and Despaties.

In addition, Lieutenant Grenier-Lafontaine had obtained explanations from the person in charge of information technology, who put forth several scenarios that could explain the modifications made to Venne’s files on August 8, 2015, without his involvement. [ 165 ] Lieutenant Grenier-Lafontaine noted that no elements from Operations LAURÉAT, FAUFIL, or NEPTUNIUM have appeared in the media. [ 166 ] At the end of her testimony on February 2, 2018, Lieutenant Grenier-Lafontaine was still unable to say who Pierre was, who leaked the information, or if they would eventually be able to identify Pierre or journalist Marie-Maude Denis’ sources. [ 167 ] Operation A will not reveal much more for the time being because, on January 8, 2018, the National Assembly of Quebec claimed parliamentary privilege over the main fruits of the investigation in connection with Guy Ouellette’s arrest and the search of his

home and his person. [ 168 ] The Court is convinced by the details provided by Lieutenant Grenier-Lafontaine regarding the searches of Bonhomme’s home that Bonhomme’s explanations appear far-fetched and that all of this simply adds to the plausibility, based on the available evidence, of the theory that he participated in the leaks at issue. [ 169 ] On October 26, 2017, the daily newspaper La Presse revealed the details of the investigation of the MNA for Chomedey. La Presse was able to reconstruct the background to the operation that had taken place the day before from interviews with a half-dozen sources. Among other things, the

article referred to a special team that had been formed, comprised of some ten investigators. UPAC investigators, officers of the Montreal, Quebec, Longueuil, and Gatineau police departments and the RCMP met in a secret office. [ 170 ] They were assisted by Revenu Québec. The

article stated that, according to La Presse ’s sources, the investigators of the MÂCHURER file had met with witnesses on ten occasions since June 2017. La Presse reported that a police source complained that the presence of a Liberal politician among the targets would put additional pressure on the special team: [ translation ] “We have become caviar for the politicians.” [ 171 ] On October 30, 2017, TVA Nouvelles published an

article stating that its investigation office had consulted documents showing how UPAC investigators were already planning to use information leaked to Radio-Canada television to get people talking about the suspects. It was noted that there was no indication that UPAC was the source of the documents disclosed on an episode of the show Enquête , but that UPAC was aware of the journalists’ plans and had put in place various action plans to take advantage of these reports and incite discussion among the people involved with whom UPAC investigators would meet. Two documents were reproduced in the

article showing that UPAC indeed intended to take advantage of the information leaked to the media to further its investigation. According to TVA Nouvelles, it had itself redacted the names of the people whose conversations the police intended to intercept. There was also a document describing an action plan based on the knowledge that the show Enquête would broadcast a report about certain information concerning Premier Jean Charest and Marc Bibeau’s involvement in the financing of the Quebec Liberal Party.

The document indicated that during week six, a meeting was held with Jean Charest on day one, and with the former Minister of MAMROT and Deputy Premier Nathalie Normandeau in connection with the LIERRE file on day two. [ 172 ] On November 8, 2017, the prosecution announced its consent to provide the investigation file concerning the leaks to the defence, while specifying that there was another investigation in progress. [ 173 ] On November 15, 2017, the Journal de Montréal published an

article containing sensitive information about Operation MÂCHURER that could only have come from the police, including the telephone records of businessman Marc Bibeau, photographs from a physical surveillance operation, and UPAC’s case theory. [ 174 ] These new revelations were repeated in the media. [ 175 ] On November 17, 2017, the defence obtained the investigation file concerning the leak at issue in the “ Notre ami Sam ” report on the show Enquête from March 31, 2016.

Sergeant Michel Comeau of the department of internal investigations and disciplinary proceedings signed this report, which, including schedules, totalled close to 600 pages. The report was dated September 13, 2017. It was presented as an obstruction of justice file. Just before concluding by submitting his report to the DCPP for review and decision, Sergeant Comeau provided the following

summary: [ translation ] To date, the investigation has not led to the identification of the person responsible for the leak. Several people (civilians and police officers) may be involved. In view of the investigative steps taken; In view of the number of potential witnesses;

In view of the fact that the investigative methods available have little or no chance of success; We are of the view that this investigation should be closed until new information or new evidence is provided to us. [ 176 ] On November 27, 2017, the TVA Nouvelles investigation office obtained Jacques Duchesneau’s report dated June 14, 2012, which was filed before the Charbonneau Commission and was supposed to remain sealed for one hundred years. The report painted a harsh and scathing picture of the influence that consulting engineering firms and construction companies had on politics. ANALYSIS

a) The legislative framework and the case law [ 177 ] On October 18, 2017, the Journalistic Sources Protection Act [1] came into force. The Act amended the Canada Evidence Act [2] by adding the following after s. 39 : Journalistic Sources

Definitions • 39.1

(1) The following

definitions apply in this section. document has the same meaning as in

section 487.011 of the Criminal Code . ( document ) journalist means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person. ( journaliste ) journalistic source means a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source. ( source journalistique ) • Objection

(2) Subject to subsection (7), a journalist may object to the disclosure of information or a document before a court, person or body with the authority to compel the disclosure of information on the grounds that the information or document identifies or is likely to identify a journalistic source. • Former journalist

(3) For the purposes of subsections (2) and (7), journalist includes an individual who was a journalist when information that identifies or is likely to identify the journalistic source was transmitted to that individual.

• Power of court, person or body

(4) The court, person or body may raise the application of subsection (2) on their own initiative . • Objection of court, person or body

(5) When an objection or the application of subsection (2) is raised, the court, person or body shall ensure that the information or document is not disclosed other than in accordance with this section. • Observations

(6) Before determining the question, the court, person or body must give the parties and interested persons a reasonable opportunity to present observations. • Authorization

(7) The court, person or body may authorize the disclosure of information or a document only if they consider that o (

a) the information or document cannot be produced in evidence by any other reasonable means; and o (

b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to, among other things, ▪ (

i) the importance of the information or document to a central issue in the proceeding, ▪ (ii) freedom of the press, and ▪ (iii) the impact of disclosure on the journalistic source and the journalist. • Conditions

(8) An authorization under subsection (7) may contain any conditions that the court, person or body considers appropriate to protect the identity of the journalistic source. • Burden of proof

(9) A person who requests the disclosure has the burden of proving that the conditions set out in subsection (7) are fulfilled. • Appeal

(10) An appeal lies from a determination under subsection (7) o (

a) to the Federal Court of Appeal from a determination of the Federal Court; o (

b) to the court of appeal of a province from a determination of a superior court of the province;

o (

c) to the Federal Court from a determination of a court, person or body vested with power to compel production by or under

an Act of Parliament if the court, person or body is not established under a law of a province; or o (

d) to the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case. • Limitation period for appeal

(11) An appeal under subsection (10) shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances. • Hearing in

summary way

(12) An appeal under subsection (10) shall be heard and determined without delay and in a

summary way. • 2017, c. 22, s. 2 . [ 178 ] In R. v. National Post , [3] a secret source gave a journalist a sealed envelope containing a document that appeared to be a copy of a bank’s authorization of a loan to a hotel in the Prime Minister’s riding. The journalist was investigating whether the Prime Minister was involved in the loan that was granted. The bank, the Prime Minister’s office, and counsel for the Prime Minister said the document was a forgery.

The Court had to rule on National Post’s application to quash the search warrant and assistance order issued to find the document and envelope in its premises so as to identify the source of the document. [ 179 ] Binnie J. wrote the following: [26] The investigation and punishment of crime is vital in a society based on the rule of law but so is the freedom of the press and other media of communication. The general principle that the public has the right to every person’s evidence is not absolute.

Narrow exceptions have been recognized as necessary to further precisely defined and overriding public interests. … [4] [ 180 ] He added: … It is important, therefore, to strike the proper balance between two public interests — the public interest in the suppression of crime and the public interest in the free flow of accurate and pertinent information. Civil society requires the former.

Democratic institutions and social justice will suffer without the latter. [5] [ 181 ] Binnie J. indicated that it was important for the media to be able use confidential sources, particularly in the case of investigative journalism: [33] In Lessard and New Brunswick , the Court accepted that freedom to publish the news necessarily involves a freedom to gather the news. We should likewise recognize in this case the further step that an important element in the news gathering function (especially in the area of investigative journalism) is the ability of the media to make use of confidential sources.

The appellants and their expert witnesses make a convincing case that unless the media can offer anonymity in situations where sources would otherwise dry-up, freedom of expression in debate on matters of public interest would be badly compromised. Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment. [6] [ 182 ] In Globe and Mail v.

Canada (Attorney General) , [7] the Supreme Court considered the issue of information obtained by a journalist from a confidential unauthorized government source in the context of a motion brought by the Attorney General seeking to

recover money the government had paid to a company who advanced a defence of prescription. [183] The Court noted that the use of a Wigmore-like analytical framework was equally relevant in litigation matters subject to the lawsof Quebec.[8] [184] With respect to the stage of the proceedings, the Court noted that the fact that case was at its preliminary stages only mightmilitate in favour of recognizing the privilege, as the case was yet to reach the stage of determining the liability or rights of theparties.[9] [185] As for the second Wigmore factor, the Court stated: [60] The centrality of the question to the dispute will also be a relevant consideration.

While the identity of a confidential source may berelevant to the dispute, particularly given the broad definition of relevancy in civil proceedings, that fact may nevertheless be soperipheral to the actual legal and factual dispute between the parties that the journalist ought not to be required to disclose the source’sidentity. [61] Another consideration, related to the centrality of the question to the dispute, is whether the journalist is a party to the litigation, orsimply an ordinary witness.

For example, whether it is in the public interest to require a journalist to testify as to the identity of aconfidential source will no doubt differ if the journalist is a defendant in a defamation action, for example, as opposed to a third partywitness, compelled by subpoena to testify in a matter in which he or she has no personal stake in the outcome. In the former context, theidentity of the source is more likely to be near the centre of the dispute between the parties.

When a journalist is called as a third partywitness, there is likely to be more of a question whether the source’s identity is central to the dispute. [62] A crucial consideration in any court’s determination of whether the privilege has been made out will be whether the facts,information or testimony are available by any other means. As the Court recognized in National Post, “[t]he ‘alternate sources’ principlehas been part of Canadian law since Re Pacific Press Ltd. and The Queen (1977), (BC SC), 37 C.C.C. (2d) 487(B.C.S.C.), as it has been in the U.K.” (para. 66).

Indeed, courts in the United Kingdom have endorsed this necessity requirement, andheld that mere administrative convenience is insufficient (Secretary of State for Defence v. Guardian Newspapers Ltd., [1985] 1 A.C.339; In re An Inquiry under the Company Securities (Insider Dealing) Act 1985, [1988] 1 A.C. 660; Cross and Tapper on Evidence (11thed. 2007), at p. 501). [63] This, of course, makes perfect sense. If relevant information is available by other means and, therefore, could be obtained withoutrequiring a journalist to break the undertaking of confidentiality, then those avenues ought to be exhausted.

The necessity requirement,like the earlier threshold requirement of relevancy, acts as a further buffer against fishing expeditions and any unnecessary interferencewith the work of the media. Requiring a journalist to breach a confidentiality undertaking with a source should be done only as a lastresort. [64] Other considerations that may be relevant in a particular case include the degree of public importance of the journalist’s story, andwhether the story has been published and is therefore already in the public domain. This list is, of course, not comprehensive. In the end,context is critical. G.

Summary of the Proposed Test [65] In

summary, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidentialsource, the requesting party must demonstrate that the questions are relevant. If the questions are irrelevant, that will end the inquiry andthere will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must goon to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particularcase.

At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) thepublic interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context-specific manner, havingregard to the particular demand for disclosure at issue.

It is for the party seeking to establish the privilege to demonstrate that the interestin maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.[10] [186] The Court cited the examples of the United Kingdom, Australia, New South Wales, and New Zealand, which have enacted laws

protecting the journalistic sources of journalists, and stated that in Canada, no such legislative proposals have received legislative approval. [11] [ 187 ] The Court therefore referred to the “Wigmore criteria”, consisting of the following four elements: • first, the communication must originate in a confidence that the identity of the informant will not be disclosed; • second, the confidence must be essential to the relationship in which the communication arises; • Third, the relationship must be one which should be “sedulously fostered” in the public good, “sedulously” being defined as diligently, deliberately, and consciously; • Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. [12] [ 188 ] Parliament has therefore modified the Wigmore test in the following manner with respect to the protection of journalistic sources. [ 189 ] First, s. 39.1(9) has reversed the burden that previously fell on the journalist. [ 190 ] The first two elements of the Wigmore test have been incorporated into the definition of “journalistic source”. [ 191 ] The third element of the Wigmore test, requiring that the relationship be sedulously fostered, has been abandoned. [ 192 ] The fourth element of the Wigmore test has been modified significantly.

The public interest in getting at the truth gives way to the public interest in the administration of justice.

The person seeking disclosure will have to show that the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source. [ 193 ] Parliament has also set out a non-exhaustive list of three factors that the court, person, or body carrying out this balancing exercise must consider: • the importance of the information or document to a central issue in the proceeding, • freedom of the press, and . • the impact of disclosure on the journalistic source and the journalist . [ 194 ] It is worth repeating that in Globe and Mail , the Supreme Court set out other considerations in paragraph 64, as we have seen. [ 195 ] The requirement that t he information or document cannot be produced in evidence by any other reasonable means, as set out in s. 39.1(7)( a ), seems to arise from the remarks of the Supreme Court in Globe and Mail v.

Canada (Attorney General) with respect to the requirements of necessity and last resort. [13]

b) The application of the legislative framework and case law in this matter [ 196 ] Through their counsel, the two journalists submit that none of the conditions set out in s. 39.1(7) has been established by the accused, who are applicants in this application to stay proceedings due to abuse of process under the residual category. [ 197 ] The applicants are of the view that they have discharged their burden.

[ 198 ] Let us consider this. [ 199 ] The applicants have established the relevance of the issues likely to lead to the identification of the confidential sources of the two journalists. [14] [ 200 ] It is therefore necessary to determine whether the applicants have established that the conditions of s. 39.1(7) are met. [ 201 ] At the stage of the application to stay proceedings based on the leak of information, there is no other reasonable means for the applicants to produce in evidence the identity of the two journalists’ sources to trace the leak of secret information back to the person or persons involved.

The prosecution acknowledges that, on a balance of probabilities, at least one State employee is involved. [ 202 ] Counsel for the journalists submits that Operation A may eventually lead to the identification of the persons behind the leaks among the current material suspects. Nothing is less sure, and even if it does come to pass, we do not know when. The Court notes that they have been working on this for months.

The applicants did indeed try to trace the leak back to their source by calling to the stand several witnesses who were the leading suspects, but to no avail. [ 203 ] In the context of an application to stay proceedings for abuse of process, the Court does not consider the application for summons premature.

We cannot allow the prejudice to the accused to continue for months in the event that the abuse of process justifies a stay of proceedings. [ 204 ] The Court is therefore of the view that the information sought by the applicants, that is, the identity of the two journalists’ sources so as to find the persons responsible for the leak, cannot be entered in evidence by any other reasonable means. [ 205 ] Let us now move on the exercise of balancing the public interest in the administration of justice and the public interest in protecting the confidentiality of journalistic sources. [ 206 ] We are dealing here with journalistic sources within the meaning of s. 39.1(1).

The journalists stated under oath that the sources insisted that their identities remain confidential, which the journalists undertook to ensure, failing which the information would not have been provided to them. [ 207 ] No one questions that Marie-Maude Denis and Louis Lacroix are journalists within the meaning of s. 39.1(1). [ 208 ] Let us now consider the factors identified by Parliament. [ 209 ] We must first determine the nature of the proceedings in this case. Is this an application to stay proceedings for abuse of process or the trial?

Counsel for the journalists argues that it is the trial and submits that the connection between the identity of the journalistic sources and the innocence of the accused is extremely tenuous and has little probative value. [ 210 ] As noted by counsel for Marc-Yvan Côté, it is easy to see that Parliament used vocabulary suitable to all the forums in which the Canada Evidence Act applies. [ 211 ] It thus chose the term “proceeding” to determine the context in which the importance of the information or document must be a central issue. [ 212 ] The applicants argue that the proceeding here is the application to stay.

Counsel for the two journalists submits that it is the trial,

which leaves room for only the rare recognized exceptions to the class privileges. [ 213 ] The Court finds that s. 39.1 enacted by Parliament is a framework allowing disclosure to be authorized in several situations going beyond the rare exceptions to the class privileges. The conditions set out in s. 39.1(7) are evidence of this. I find that in the case of criminal charges, the proceeding may refer to a stage of the proceeding, such as an interim release hearing, preliminary inquiry presided by a justice of the peace or a sentencing hearing.

Similarly, I find that the present application to stay proceedings due to abuse of process constitutes a proceeding within the meaning of s. 39.1(7)( b )(i). [ 214 ] The Court must consider whether the importance of the sources’ identity is a central issue to the application to stay proceedings for abuse of process rather than to the trial and the determination of the guilt or innocence of the accused. [ 215 ] It should be noted that the two journalists stated under oath on January 26, 2018, that they did not know the identity of their sources.

That includes the conversations between Louis Lacroix and Pierre and those of Marie-Maude Denis with respect to the April 12, 2012, “ Anguille sous Roche ”, the December 10, 2015 “ Ratures et ruptures ”, and the March 31, 2016 “ Notre ami Sam ” Radio-Canada reports. [ 216 ] It can be expected that the testimony of the two journalists has little chance of leading the applicants to the sources and even less to the State employees who first leaked the information. [ 217 ] The possibility of having the witnesses hear vocal excerpts of certain people was raised.

That would clearly be a fishing expedition, as the Court put it in Globe and Mail v. Canada (Attorney General) . [15] The courts must not become investigative bodies when those bodies fail.

It is not their role to embark on a witch-hunt for crooked State employees. [ 218 ] It is therefore clear that the applicants have not established that the information obtained from the two journalists would be important to a central issue in the context of their application. [ 219 ] Even if the sources are identified, it remains unlikely that this will allow us to trace the leak back to the persons responsible. [ 220 ] The Court therefore finds that the factor of the importance of the information or document to a central issue in the proceeding does not weigh in favour of disclosure. [ 221 ] As for the factor of freedom of the press, it is necessary to bear in mind that the two journalists’ reports and articles occurred in the context of investigative journalism. [ 222 ] It is appropriate to recall the following remarks of the Commission d’enquête sur la protection de la confidentialité des sources journalistiques, the Chamberland Commission of inquiry on the protection of the confidentiality of journalistic sources, in its report published in December 2017 in support of its first recommendation to adopt legislation protecting journalistic materials and sources in civil and penal matters: [ translation ] It is the public’s right to information, an essential element of democracy, which requires the protection of journalistic materials and sources.

It should be confirmed in legislation that journalism is at the service of the public’s right to information rather than the service of the police and the courts. [16] [ 223 ] The applicants argued vigorously that when, as in this case, the sources disclose confidential information and documents obtained unlawfully and criminally, the public interest in protecting the confidentiality of the journalistic source is no longer served.

[ 224 ] The Court does not accept that reasoning in this case. In no way will the applicants be prevented from raising, as alleged in their application, that the numerous leaks concern police files leaked by State employees, who thereby committed penal and criminal offences, that the Crown did not take the necessary measures to stop the leak, and that the applicants suffered the consequences. [ 225 ] Relatively speaking, the impact of disclosure on the two journalists, another factor identified by Parliament, is irremediable.

As for the impact of disclosure on the journalistic sources at issue, the Court has little concern, given the nature and character of the documents they transmitted and the inference that may be drawn with respect to the knowledge that the sources may have had of the unlawfulness of obtaining this information and these documents. [ 226 ] In Globe and Mail v.

Canada (Attorney General ), [17] the Supreme Court also noted that other considerations could include the degree of public importance of the journalist’s story and whether the story has been published and is therefore already in the public domain. [ 227 ] In this case, the information and documents concerned several aspects in addition to those of interest to the applicants.

Significant information was being provided to the public that could help them better understand issues of general public interest, such as political financing and the efforts made to stop the leaks at UPAC concerning the versions provided during parliamentary committees.

The news was published by journalists, but the information revealed did not identify the State employees at the source of the leak, with the result that this information is still not in the public domain. [ 228 ] The Court therefore finds that the applicants have not discharged their burden of establishing that the public interest in the administration of justice outweighs the public interest in preserving the journalistic sources of Marie-Maude Denis and Louis Lacroix.

c) Summary [ 229 ] To summarize, • the information that the applicants seek to obtain from the two journalists, i.e., the identity of their journalistic sources, is relevant; • Marie-Maude Denis and Louis Lacroix are journalists within the definition set out in s. 39.1(1) of the Canada Evidence Act ; • the information and documents they received come from journalistic sources within the definition set out in s. 39.1(1) of the Canada Evidence Act ; • the applicants have established that the information or documents cannot be produced in evidence by any other reasonable means in accordance with s. 39.1(7) (

a) of the Canada Evidence Act ; • the applicants have not established that the public interest in the administration de la justice outweighs the public interest in preserving the confidentiality of the journalistic source as required under s. 39.1(7) (

b) of the Canada Evidence Act , having regard to, • the importance of the information or document to a central issue in the application to stay proceedings due to abuse of process; • freedom of the press; • the impact of disclosure on the two journalists and their journalistic sources; • the importance of the reports and articles of the two journalists for the public; and • the fact that the information obtained from the journalistic sources was published by the journalists, but this information did not concern the identity of the State employees at the source of the leak.

That information is therefore still not in the public domain. [ 230 ] The applicants have therefore not established that the conditions set out in s. 39.1(7) are met. The Court cannot therefore authorize the journalists Marie-Maude Denis and Louis Lacroix to disclose the information or documents that would or would likely identify their journalistic sources. FOR THESE REASONS, THE COURT: ALLOWS the application;

DOES NOT AUTHORIZE the disclosure by journalists Marie-Maude Denis and Louis Lacroix of information or documents identifying or likely to identify their journalistic sources. CANCELS the witness summons requiring Marie-Maude Denis and Louis Lacroix to appear before the Court in the context of this application. __________________________________ ANDRÉ PERREAULT, J.C.Q.

Mtre Christian Leblanc Counsel for the interveners Marie-Maude Denis and Louis Lacroix Mtre Jacques Larochelle Mtre Olivier Desjardins Counsel for the applicant Marc-Yvan Côté Mtre Réjean Lavoie Counsel for the applicant Mario Martel Mtre Charles Levasseur Mtre Jean-Philippe Lanthier Counsel for the applicant France Michaud Mtre Maxime Roy Counsel for the applicant Nathalie Normandeau Mtre Olivier Desjardins Counsel for the applicant Bruno Lortie Mtre Olivier Desjardins Counsel for the applicant François Roussy Bruno Lortie Applicant François Roussy Applicant

Mtre Robert Rouleau Mtre Édith Lafontaine Mtre Catherine Dumais Mtre Justin Tremblay Director of Criminal and Penal Prosecutions Mtre Michel Deom Counsel for the impleaded party, the Attorney General of Québec