September 16, 2020
CBC/Radio Canada v Arsenault 2020 QSC 500-36-009608-202
In this case, Michel Arsenault, a former gymnastics coach charged with sexual assault and assault, presented a motion (based on O’Connor) to obtain the full interviews conducted by Radio-Canada with confidential sources and non-confidential sources. A story had been aired about him before criminal charges were laid.
Arsenault claimed that the confidential sources were either the complainants or Crown witnesses in his criminal case and that he needed the interviews to attack their credibility at trial. Radio-Canada contested the motion but the judge in the Court of Quebec rejected their submissions.
In appeal, Justice Bourque accepted all of Radio-Canada’s arguments, in particular with regard to:
– the impact of disclosing the identity of confidential sources, even to the Court;
– the application of the Mills’ regime to the accused’s request for disclosure of the interviews with the confidential sources as they contain personal information for which there is a reasonable expectation of protection of privacy within the meaning of Art. 278.1 Cr. C.;
– the burden of proof required under section 39.1 of the Journalistic Sources Protection Act;
– the circumstances in which it can be considered that a confidential source waived the privilege;
– the application of the Vice test to requests for journalistic material even when they are presented by an individual (and not by the state);
– the chilling effect which would result from the disclosure of the interviews with the sources, confidential or not;
– the constitutional protection of the principle of confidentiality in the process of collecting and disseminating information even in the absence of confidential sources.