Crown’s change of position was serious enough to justify intervention by Court

Evidence - Privilege - Statutory Privilege

Former politician charged with numerous offences brought motion seeking to have proceedings stayed. He argued that significant quantity of confidential information had been leaked to journalists by members of government agency. To establish his case, he served subpoena on journalist. Application judge quashed subpoena, concluding in particular that journalist did not know identities of sources in question. Politician appealed to Superior Court, which held that application judge made palpable and overriding error. It found that the journalist was in fact aware of identities of sources for two of her four reports and held that criteria for disclosure were met. Journalist appealed to Quebec Court of Appeal, which held that only decision that could be appealed was that of application judge. Journalist further appealed with leave to Supreme Court of Canada. Appeal dismissed with respect to jurisdiction, allowed in part on merits. Crown recently indicated that it could no longer support factual framework originally advanced before application judge and in Superior Court. Effect of this change of position was to deprive Court of basis in fact that was sufficient for it to adequately assess Superior Court’s decision on merits. However, Crown’s change of position was serious enough to justify intervention by Court. Therefore, journalist’s appeal against Superior Court’s decision on merits was allowed in part, order authorizing disclosure was set aside, and case was remanded to court of original jurisdiction for. reconsideration.

Denis v. Côté (2019), 2019 CarswellQue 7997, 2019 CarswellQue 7998, 2019 SCC 44, 2019 CSC 44, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellQue 2585, 2018 QCCA 611, Bich J.C.A., Ruel J.C.A., and Dutil J.C.A. (C.A. Que.).

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