Journalist-Confidential Source Privilege May Exist In Canada -

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Journalist-Confidential Source Privilege May Exist In Canada

June 2010

First published Toronto Law Journal in Vol 5, No 7, Summer 2010

A journalist does not have the constitutional right to protect a confidential source. That is the ruling of the Supreme Court of Canada in R v National Post, released on May 7th. In an 8-1 decision, the Court also found that Canadian journalists, unlike their counterparts in Australia, New Zealand and many US states, cannot claim a common law class privilege. Such a privilege, or "shield", as it commonly referred to, exempts a journalist from being legally obliged to divulge information about, or from, a confidential source.

However, for the Canadian journalist, and the media organizations they work for, there was arguably some good news out of the majority judgment. Justice Binnie, writing for the majority, found that journalist-confidential source privilege may be found ("may" being the operative word), if in a particular case, the journalist can satisfy the classic 4 part Wigmore test for establishing privilege. Those criteria:

the communication originated in the confidence that the informant's identity would NOT be disclosed.
the confidence was essential to the relationship in which the confidence arose.
the relationship is one which should be diligently, deliberately and consciously fostered for public good and
the public interest in protecting the identity of the informant from disclosure, outweighs the public interest in getting at the truth.

It is clear that criteria (iv) will present the real challenge to the journalist. The Supreme Court rejected the argument that once the media establishes the first three criteria, the onus should shift to the Crown to prove that public interest outweighs confidentiality. Justice Binnie wrote:

"It is the media that advances the proposition that the public interest in protecting its secret source outweighs the public interest in the criminal investigation. The burden of persuasion therefore lies on the media."

However, as he notes, at the fourth stage, the Court will weigh up the evidence on both sides, and the public interest in free expression will "always weight heavily in the balance."

The case revolves around 2002 search warrant and assistance Order executed against the National Post and one of its investigative reporters. The allegation is the reporter was in possession of forged bank records received from a source that had been offered confidentiality. In applying the above Wigmore criteria to the facts of this case, not surprisingly, Justice Binnie had no trouble finding the first 3 criteria were met. However, he adopted the words of Laskin and Simmons JJA in the Ontario Court of Appeal ruling in this case when they found, "the document and envelope are not merely pieces of evidence tending show that a crime has been committed. They are the very actus reusif the alleged crime." As such Justice Binnie concluded that the Post had failed to show that public interest in the protection of their secret source(s) outweighed the public interest in the production of the physical evidence of the alleged crimes, and thus had failed to meet its onus under Wigmore criteria (iv).

With no constitutional protection for journalists with respect to their sources, and no recognition of a common law class privilege, it is easy to be somewhat skeptical that the media will ever be able to meet the onus under Wigmore criteria (iv), that is, that the analysis will always balance out in favour of disclosure. From a practical point view, the media will only be the subject of a search warrant, or assistance Order, in cases where the police and Crown obviously believe it is necessary to gain access to the potential evidence. If they have reached that conclusion, they most certainly can be expected to put forward clear and cogent arguments as to why it is crucial that there be disclosure in furtherance of a bona fide investigation. How will a journalist and/or the media organization ever be able to successfully rebut that presumption?

Perhaps, the media can take heart from the dissenting judgment of Madame Justice Rosalie Abella. She reviewed the same factual matrix in this case and found that disclosure would provide "the slightest possible benefit to an investigation of an alleged forgery." In doing the balancing under criteria (iv) she concluded,

"The harm and benefit of disclosure in this particular case is speculative at best. The major demonstrable harm, with no countervailing benefit, is to the ability of the press to carry out its public mandate."

As to when these arguments will be made, the judgment does suggest this should take place when the application for the warrant is brought, even when it is brought ex parte. In dealing with the issue of notice to media, the majority found the issuing judge must include in any warrant adequate terms to protect the "special position of the media and to permit the media ample time and opportunity to point out why, on the facts, the warrant should be set aside."

Clearly the circumstances of when the Crown will be seeking disclosure with respect to information from, or about a confidential source, will be few and far between. However, a journalist will have to be very careful now in what they represent to their sources. When the time comes again when there is an application for disclosure, regardless of how onerous the burden may be, R v National Post will give that particular journalist and/or media company, some good legal ammunition to use in the battle.

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe.

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