Commentary
The Supreme Court of Canada’s refusal to protect the National Post’s confidential source and grant constitutional protection to all journalists’ sources is “disappointing,” writes Toronto media lawyer Brian MacLeod Rogers. But the door is open to future privilege claims and the court has clearly recognized the importance of confidential sources to investigative journalism and the public’s right to know. Read his analysis of the ruling and its implications:

By Brian MacLeod Rogers

On May 7 the Supreme Court of Canada ruled against the appeal brought by the National Post and Andrew McIntosh to set aside a search warrant and assistance order that could reveal a confidential source.  The ruling is disappointing not only in its result, but also in its failure to apply full constitutional protection for journalists’ confidential sources. However, the decision also contains much that will be helpful for protecting sources in future cases. Certainly, there is clear recognition that confidential sources can be key to investigative reporting and that “transparency and accountability of government are issues of enormous public importance”.  Indeed, freedom to publish the news includes the use of confidential sources as an element of the news-gathering process.

Essentially, the Court ruled that the existing common law approach, after taking into account the importance of such sources to free expression, was sufficient to safeguard the interests and concerns involved when a journalist may be compelled to reveal a confidential source. “Journalistic privilege is very context specific”, the Court held, and a detailed inquiry into all of the circumstances is always necessary – with the onus on the journalist to overcome the presumption that disclosure is required. This makes it difficult, if not impossible, to predict at the time a commitment is made to a source whether privilege will ultimately be available.

There is no doubt that the particular circumstances of the case had a significant impact. As the Court noted, “this is not the usual case of journalists seeking to avoid testifying about their secret sources. This is a physical evidence case. It involves what is reasonably believed to be a forged document. Forgery is a serious crime.” (para. 3) The public interest in effective law enforcement was directly at issue. There is good reason to believe that the careful and respectful approach set out by the Ontario Court of Appeal in the Ken Peters case (St. Elizabeth Home Society v. Hamilton (2008) ONCA 182), which recognized the Charter value of free expression involved, will continue to apply where journalists face contempt of court for failing to identify a confidential source when testifying. It was specifically cited favourably by Binnie J. (para. 30)

This distinction could be important for the appeal to the Supreme Court of Canada brought by The Globe and Mail and Daniel Leblanc. It arose over attempts in a Quebec civil case brought by the Canadian government against the ad agency, Groupe Polygone, to compel Leblanc to reveal a key source, “Ma Chouette”, for his coverage of the sponsorship scandal. (SCC no. 33114) The appeal was argued October 21, 2009, and had been expected to be released at the same time as the National Post case.

Unfortunately, as with earlier search warrant cases involving the media (CBC v. Lessard, [1991] 3 S.C.R. 421; CBC v. New Brunswick, [1991] 3 S.C.R. 459), the Court has failed to recognize that constitutional protection for free expression, which encompasses newsgathering, should have direct application when the state wishes to obtain evidence from the newsroom – even when confidential sources are at risk of being exposed.  Nevertheless, there may be situations where “the public interest in protecting the secret source from disclosure outweighs other competing public interests – including criminal investigations”.  (para. 34)  The Court did not accept the Crown’s argument that the existence of any crime should vitiate the privilege and recognized that, for example, the Pentagon Papers case represented an instance where publication, despite the fact that an offence had been committed, was in the greater public interest.  Further:

“When investigative reporting strikes at those in power, it would not be unexpected that those in power including the police may wish to strike back.  There may be circumstances where the criminal investigation appears to be contrived to silence improperly the secret source, and in such cases the Court may decline to order protection, … [citing the example of Juliet O’Neill].  (para. 62)”

Importance of Journalists’ Sources

There are a number of observations of Justice Binnie that are most helpful and recognize the importance of sources for effective newsgathering and true freedom of expression:

“It is well established that freedom of expression protects readers and listeners as well as writers and speakers.  It is in the context of the public right to knowledge about matters of public interest that the legal position of the confidential source or whistle-blower must be located. … The public also has an interest of being informed about matters of importance that may only see the light of day through the co-operation of sources who will not speak except on condition of confidentiality. Benotto J. accepted the evidence that many important controversies were unearthed only because of secret sources (often internal whistle-blowers) [referring to seven major Canadian controversies such as the tainted tuna scandal, secret commissions paid by Airbus Industrie and wrongdoing by members of the RCMP Security Service in 1977]. (para. 28)”

The media perspective was forcefully put in a 2005 editorial in the New York Times:

“In such [whistle-blowing] cases, press secretaries and public relationships people are paid not to give out the whole story.  Instead, inside sources trust reporters to protect their identities so they can reveal more than the official line.  Without that agreement and that trust between reporter and source, the real news simply dries up, and the whole truth steadily recedes behind a wall of image-mongering, denial and even outright lies. (para. 29)”

In Lessard and New Brunswick the Court accepted that freedom to publish the news necessarily involved a freedom to gather the news.  We should likewise recognize in this case the further step that an important element in the newsgathering function (especially in the area of investigative journalism) is the ability of the media to make use of confidential sources.  The Appellants and their expert witnesses make a convincing case that unless the media can offer anonymity in situations where sources would otherwise dry-up, freedom of expression in debate on matters of public interest would be badly compromised.  Important stories will be left untold and the transparency and accountability of our public institutions will be lessened to the public detriment. (para. 33)

Viewed in this light, the law should and does accept that in some situations the public interest in protecting the secret source from disclosure outweighs other competing public interests – including criminal investigations.  In those circumstances the courts will recognize an immunity against disclosure of sources to whom confidentiality has been promised.(para. 34)

The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and the accountability of our public institutions.  The need to shine the light of public scrutiny on the dark corners of some private institutions as well is illustrated by Benotto J.’s reference to corporate delinquencies in the list reproduced above at para. 28. (para. 55)

Case-by-Case Privilege

Despite recognition of the importance of the media and their sources, no broad “class” privilege has ever been recognized by common law courts for journalists and confidential sources, even in the United States. The Court cites a number of reasons for this, including “the immense variety and degrees of professionalism” of those claiming to be journalists.  It points to other jurisdictions which have rejected such a privilege but have instead passed shield laws, suggesting that is the proper avenue for introducing any broader privilege; these include many U.S. states, England, Australia and New Zealand.  This is certainly a signal for close examination of the merits of such shield laws here.

The Court therefore rejected any “constitutional immunity” against disclosure of confidential sources and instead favoured a case-by-case privilege based on an analysis of “Wigmore criteria” that are generally applied to claims for confidentiality at common law.  The person seeking the privilege has the onus of proving that all four criteria have been met, and this means that journalists can never be sure when they make a commitment to source just what might be ordered disclosed.  The first two require an explicit commitment of confidentiality that is essential to the relationship involved (journalist/source).   The third criterion requires that the relationship is one deserving society’s protection and encouragement.  Here the Court made a distinction between a “blogger” and someone who is clearly a professional journalist: “In general the relationship between professional journalists and their secret sources is a relationship that ought to be “sedulously” fostered.” (para. 57)

The fourth Wigmore criterion is the most challenging one, requiring a court to balance the different rights and interests involved.  Here, the Court rejected the media’s position that the onus should shift to the Crown on this issue once the first three criteria have been established.  Instead, the onus remains on the journalist to overcome the presumption that all evidence is compellable and admissible. The seriousness of the offence and probative value of the evidence involved are other factors for the court to take into account.

In summary, at the fourth stage, the court will weigh up the evidence on both sides (supplemented by judicial notice, common sense, good judgment and appropriate regard for the “special position of the media”).  The public interest in free expression will always weigh heavily in the balance. While confidential sources are not constitutionally protected, their role is closely aligned with the role of “the freedom of the press and other media of communication”, and will be valued accordingly but, to repeat, at the end of the analysis the risk of non-persuasion rests at all four steps on the claimant of the privilege. (para. 64)

Physical Evidence of Crime

The Court went on to point out “there is a significant difference between testimonial immunity against compelled disclosure of secret sources and the suppression by the media of relevant physical evidence.” (para. 65)  Journalists have “no blanket right to suppress physical evidence of a crime,” and their acceptance of sources’ claims of innocence won’t end the matter:

It is the Courts, however, and not individual journalists or media outlets, that must ultimately determine whether the public interest requires disclosure.  Mr. McIntosh’s belief in the good faith of his source cannot prevent the Courts from reaching a different conclusion. (para. 77)

The bottom line is that no journalist can give a source a total assurance of confidentiality.  All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed.  In the end, the extent of the risk will only become apparent when all the circumstances in existence at the time of the claim for privilege is asserted or known and can be weighed up in the balance.  What this means, amongst other things, is that a source who uses anonymity to put information into the public domain maliciously may not in the end avoid a measure of accountability.  (para. 69)

This will focus attention in future on the decision to retain original documents or other evidence that could reveal a confidential source, particularly in circumstances where a criminal investigation might ensue. For many news organizations, especially in the United States, it is common practice to destroy any such revealing evidence as soon as possible after the story has been published. The importance of protecting sources outweighs any possible negative repercussions for defending the story in defamation or other civil proceedings, particularly under US law. Because of the importance of proving truth as a defence in Canada, the usual practice has been to retain everything that might help in defending libel cases. This seems open to question now – at least at an early stage, well before any interest has been expressed by police or other authorities in such evidence.

Notice of Applications for Warrants

The Court goes on to examine other conditions that are required for search warrants and the like issued against the media, even in the absence of any privilege. In keeping with its 1991 decisions in CBC v. Lessard and CBC v. New Brunswick, these must take into account the media’s “special position” and be careful to avoid a disruption of its work.  While not requiring prior notice of an application for a warrant to be provided to the media, the Court makes it clear that an issuing judge has discretion to require notice, suggesting that he/she “may well conclude that it is desirable to proceed on notice to the media organization rather than ex parte”. (para. 83) In any event, even where notice isn’t given, ample opportunity must be given to the media to challenge the validity of the warrant, as was done in the National Post case itself.

Dissent of Justice Abella

In her dissent, Justice Abella held that such notice should presumptively be given unless the purpose of the warrant would be defeated.  She also would have set aside the warrant against the National Post in the circumstances of the case.  She accepted the same approach as Justice Binnie, employing Wigmore criteria, but took a different view of both the importance of the source, on the one hand, and the lack of significance of the evidence, on the other.  She also pointed to the RCMP’s failure to pursue alternative avenues before turning to the search warrant to obtain evidence about the alleged crime. Justice LeBel, in a short concurring opinion sided with Justice Abella, on the issue of notice but otherwise agreed with Justice Binnie’s decision.

Conclusion

In the end, the particular facts of this case made it difficult for the Court to accept that journalists, rather than Courts, should determine when sources should be protected and whether evidence was critical to a criminal investigation. Certainly, no one expected the Court to adopt anything but a case-by-case privilege. At least, it clearly acknowledged that confidential sources are important for free expression and that this will be an important element to consider when applying Wigmore’s fourth criterion. This represents a “soft” approach of applying Charter values and certainly does not go as far as the media would have liked in recognizing the constitutional protection.  Nonetheless, there is much good news in the decision that will be useful in future cases. We will have to wait for the “other shoe” to drop when the SCC’s decision in Globe and Mail v. Canada is released.

Brian MacLeod Rogers and colleague Iain A. C. MacKinnon acted for the interveners in the National Post case – the Canadian Newspaper Association, AD IDEM/Canadian Media Lawyers Association, Canadian Journalists for Free Expression, the Canadian Association of Journalists, the Professional Writers Association of Canada, RTNDA Canada/Association of Electronic Journalists, Magazines Canada, the Canadian Publishers’ Council, the Book and Periodical Council, the Writers’ Union of Canada and Pen Canada.

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