June 17, 2024
500-01-229363-228 2024 Court of Quebec

The accused is facing two charges, regarding sexual offences allegedly committed in
1997 towards a person under the age of fourteen. The trial was set to start June 17th,
2024.

In this application, the accused was seeking to obtain access to the entire record of third-party record holder, Canadian Jewish News (CJN) regarding an interview given by the
complainant to one of its journalists.

Section 278.3, of the Criminal Code, creates a regime governing the access to third -party held records related to a complainant.

In a s. 278.3 third-party record application, the third-party record holder and the person
affected by the record (here, the complainant), are parties to the application. Section
278.3(5) requires that they must receive notice of, and be served with, the application.
Section 278.4(2) provides them with the right to appear and make submissions at the
hearing and it removes their compellability as witnesses.

CJN objected to the disclosure of the information requested by the accused on the
grounds that the information identified or is likely to identify a journalistic source, invoking s. 39.1(2) of the Canadian Evidence Act ( CEA). Crown and complainant
counsels agreed with this and also opposed the application for disclosure, adding that
it did not satisfy the criteria set out in s. 278.5.

The Court found that the accused did not satisfy the criteria set out in S. 278.5
concerning all material requested in Pre-Trial Application B, namely the likely relevance
prerequisite.

CJN’s objection to Pre-Trial Application B under s. 39.1 of the CEA was rejected as
the journalist did not establish that the person transmitting the information was a journalistic source as defined by s. 39.1 of the CEA.

If the person had been considered a journalistic source, the defense would not
have satisfied its burden to establish that the information requested cannot be produced
in evidence by any other reasonable means, nor that the public interest in the
determination of justice outweighs the public interest in preserving confidentiality of the
journalistic source.

CJN’s objection to Pre-Trial Application B under the adapted Vice Media regime
is maintained as the material requested by the accused is privileged and cannot be
disclosed.