News organization asks Supreme Court to protect privacy of interview with sexual assault complainant

A news organization forced to turn over a videotaped interview with a complainant in an alleged rape involving a hockey player is asking the Supreme Court of Canada to hear an appeal of that decision, describing it as a test of federal legislation protecting journalistic sources.

The player, Jake Virtanen, formerly of the National Hockey League’s Vancouver Canucks, was acquitted of sexual assault by a jury in July. His lawyer, Brock Martland, says in a filing with the Supreme Court that the interview and electronic communications with reporter Alanna Kelly of Glacier Media Inc., were crucial to Mr. Virtanen’s defence.

The case is at least the fourth in Canada involving court applications by men accused of sexual assault seeking to obtain media interviews with alleged victims since the federal Journalistic Sources Protection Act took effect in 2017. The results were mixed, depending partly on the facts of each case.

The source protection act was passed after justices of the peace in Quebec signed warrants authorizing police to conduct surveillance on journalists. The act protects journalists from being compelled to reveal their sources. But the protection is not absolute; it is balanced against the public interest in the administration of justice.

Mr. Virtanen’s acquittal is not being contested. Glacier Media, which runs community newspapers, is asking the Supreme Court to hear an appeal of a court order that it turn over the interview and e-mails and texts between the complainant, known as M.S., her lawyer and the reporter.

That order could “adversely affect the ability and willingness of those alleging a sexual assault to share their story with the media,” Glacier Media said in its court filing. It emphasized that journalists have a right to privacy in their work under the new law.

Kirk LaPointe, Glacier Media’s vice-president of editorial, said in a published comment piece that the lower-court rulings are “a troubling new roadblock on the rights of journalists to research in confidence many of our most delicate issues, particularly crimes and abuse of power.”

But Mr. Martland says in a court filing that there is “nothing jarring for press freedom.”

“The source’s identity was not a secret,” he told the Supreme Court of Canada in a document in which he asked the court not to hear an appeal. He said the federal law’s purpose is to shield identity, but not the information the source discloses.

“The obvious intention is to publish the information possessed by the source, not to hide,” he said in the document. “That was on display here, where the interview between the reporter and the complainant was understood to be for broadcast.”

The sexual assault was alleged to have occurred in a Vancouver hotel in 2017, when Mr. Virtanen was about 20 and the complainant was 18. In April, 2021, Ms. Kelly video-recorded an interview with a woman who alleged Mr. Virtanen sexually assaulted her. The Canucks suspended Mr. Virtanen, and later removed him from the team. After the interview, the woman went to the police, and filed a civil claim against the hockey player.

Last spring, as the trial approached, Mr. Virtanen’s legal team went to court to seek a copy of the interview and other communications. Glacier argued that the materials were covered by journalistic “privilege” – a protection from compelled disclosure. But B.C. Supreme Court Justice Catherine Wedge found that “freedom of the press is not at stake here,” saying the reporter had kept her promise of confidentiality, and that disclosure would have minimal impact on both the complainant and the reporter. (The complainant, who had legal counsel, chose not to make an argument on whether the interview should be handed over.) The judge ordered Glacier Media to turn the materials over to her so she could decide what parts if any would be given to Mr. Virtanen’s defence team.

The British Columbia Court of Appeal upheld the judge’s order in a 3-0 ruling.

In his filing to the Supreme Court, Mr. Martland said the interview and related communications “proved highly relevant and extraordinarily useful.” He alleged the reporter “prompted” the complainant to go to the police, and “pushed” her to file a lawsuit, while giving “substantive input” into the drafting of that lawsuit.

“The records revealed a treasure trove of conduct and complications – of obvious relevance to trial issues for the accused,” the court filing says.

Mr. LaPointe responded on Ms. Kelly’s behalf to a request from The Globe and Mail for comment. “Words like ‘promoted,’ ‘pushed’ and ‘substantive input’ represent a gloss Mr. Martland seeks to place on the facts,” he said in an e-mail.

Mr. Virtanen tried out for the Edmonton Oilers this fall but did not make the team.