Criminal Code

Marginal note:Definitions

• 488.01 (1) The following definitions apply in this section and in section 488.02.

  data

  data has the same meaning as in section 487.011. (données)

  document

  document has the same meaning as in section 487.011. (document)

  journalist

  journalist has the same meaning as in subsection 39.1(1) of the Canada Evidence Act. (journaliste)

  journalistic source

  journalistic source has the same meaning as in subsection 39.1(1) of the Canada Evidence Act. (source journalistique)

  officer

  officer means a peace officer or public officer. (fonctionnaire)

• Marginal note:Warrant, authorization and order

  (2) Despite any other provision of this Act, if an applicant for a warrant under section 487.01, 487.1, 492.1 or 492.2, a search warrant under this Act, notably under section 487, an authorization under section 184.2, 184.3, 186 or 188, or an order under any of sections 487.014 to 487.017 knows that the application relates to a journalist’s communications or an object, document or data relating to or in the possession of a journalist, they shall make an application to a judge of a superior court of criminal jurisdiction or to a judge as defined in section 552. That judge has exclusive jurisdiction to dispose of the application.

• Marginal note:Warrant, authorization and order

  (3) A judge may issue a warrant, authorization or order under subsection (2) only if, in addition to the conditions required for the issue of the warrant, authorization or order, he or she is satisfied that

  • (a) there is no other way by which the information can reasonably be obtained; and

  • (b) the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.

• Marginal note:Special Advocate

  (4) The judge to whom the application for the warrant, authorization or order is made may, in his or her discretion, request that a special advocate present observations in the interests of freedom of the press concerning the conditions set out in subsection (3).

• Marginal note:Offence by journalist — exception

  (5) Subsections (3) and (4) do not apply in respect of an application for a warrant, authorization or order that is made in relation to the commission of an offence by a journalist.

• Marginal note:Offence by journalist — order

  (6) If a warrant, authorization or order referred to in subsection (2) is sought in relation to the commission of an offence by a journalist and the judge considers it necessary to protect the confidentiality of journalistic sources, the judge may order that some or all documents obtained pursuant to the warrant, authorization or order are to be dealt with in accordance with section 488.02.

• Marginal note:Conditions

  (7) The warrant, authorization or order referred to in subsection (2) may contain any conditions that the judge considers appropriate to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities.

• Marginal note:Powers

  (8) The judge who rules on the application for the warrant, authorization or order referred to in subsection (2) has the same powers, with the necessary adaptations, as the authority who may issue the warrant, authorization or order.

• Marginal note:Discovery of relation to journalist

  (9) If an officer, acting under a warrant, authorization or order referred to in subsection (2) for which an application was not made in accordance with that subsection, becomes aware that the warrant, authorization or order relates to a journalist’s communications or an object, document or data relating to or in the possession of a journalist, the officer shall, as soon as possible, make an ex parte application to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and, until the judge disposes of the application,

  • (a) refrain from examining or reproducing, in whole or in part, any document obtained pursuant to the warrant, authorization or order; and

  • (b) place any document obtained pursuant to the warrant, authorization or order in a sealed packet and keep it in a place to which the public has no access.

• Marginal note:Powers of judge

  (10) On an application under subsection (9), the judge may

  • (a) confirm the warrant, authorization or order if the judge is of the opinion that no additional conditions to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities should be imposed;

  • (b) vary the warrant, authorization or order to impose any conditions that the judge considers appropriate to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities;

  • (c) if the judge considers it necessary to protect the confidentiality of journalistic sources, order that some or all documents that were or will be obtained pursuant to the warrant, authorization or order are to be dealt with in accordance with section 488.02; or

  • (d) revoke the warrant, authorization or order if the judge is of the opinion that the applicant knew or ought reasonably to have known that the application for the warrant, authorization or order related to a journalist’s communications or an object, document or data relating to or in the possession of a journalist.