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Appeal Court Considers Journalist’s Privilege
Published in the March 2008 issue of Litigation Notes - View Article
Summary: Where a court is presented with a journalist refusing to answer questions on grounds of an undertaking of confidentiality made to a confidential source, the court should first determine whether the claim for privilege is valid, as per the Wigmore criteria. Contempt proceedings should by instituted sparingly and only after the trial is completed.
On March 17, 2008, the Ontario Court of Appeal released an important decision on the procedure to be followed by Courts when faced with a situation where a journalist refuses to answer a question put to him/her while in the witness stand on the grounds that, by answering, the journalist will be violating a promise of anonymity made to a confidential source.
In 1995, Ken Peters, a municipal affairs reporter, wrote three articles that were published in the Hamilton Spectator on the issue of certain alleged health and safety practices of a lodging home for senior citizens in Hamilton, Ontario. The articles were born out of a number of documents that were leaked to Peters from a confidential source.
The lodging home commenced defamation proceedings against the City of Hamilton and the relevant regional government (which oversaw the department of public health) as a result of the leaked documents.
The identity of the confidential informant remained unknown well into the trial which took place over two years. In the course of putting in its case, the plaintiff subpoenaed Peters in the hope of learning the identity of the person who had leaked the document.
In giving his evidence, Peters testified that he had been provided with the documents from a confidential source, “A” while he was in the presence of another person, “B”. Peters’ evidence was also that the promise of confidentiality was only made to “A”.
On the judge’s instruction, plaintiff’s counsel proceeded incrementally in order to get as much information on the record as possible, before asking Peters to identify “A”.
After some initial questions, Peters was asked to identify “B”, to whom no confidentiality undertaking was ever made. Peters testified that if he were to identify “B”, this would lead to the identification of “A”, by inference. The trial judge then ruled that, because there had been no confidentiality undertaking given to “B” the question must be answered.
When pressed, Peters responded “With all due respect, Your Honour, I can’t do that.” In the face of this refusal to answer, the trial judge scheduled a contempt hearing for the following week.
One day before the contempt hearing, the Hamilton Spectator published an article in which a city councillor was quoted as saying that he knew “A’s” identity. This led to another city councillor, Henry Merling, voluntarily coming forward and testifying at the trial that he was the confidential source (i.e. “A”). Merling also identified “B” when giving his evidence.
On the completion of Merling’s evidence, the trial judge proceeded with the contempt hearing against Peters, during which he heard evidence from the Hamilton Spectator’s editor, who testified on the importance of preserving the confidential nature of anonymous sources and how they are important in the day-to-day work of journalists. Expert evidence on this point was also heard from a journalism professor at Ryerson University. In the end, the trial judge held that “the plaintiff was being denied the opportunity to attempt to prove a vital element of its case … The administration of justice is denied. The authority of the court has been refused. I find on all evidence, that the offence is proven beyond a reasonable doubt.”
At a later hearing, the matter was converted from a finding of criminal contempt to one of civil contempt, an apparent acknowledgement on the part of the trial judge that Peters’ actions were not deserving of criminal sanction.
Peters was ordered to pay the parties to the litigation $31,600 in “costs thrown away” as a result of the refusal to answer the question put to him. None of the litigants in the civil action asked for a finding of contempt. Rather, this was done at the instance of the trial judge.
The decision was appealed. The main issue before the appellate court was whether the trial judge erred by citing the appellant for contempt immediately upon his refusal to identify “B”.
Before dealing with this issue, however, the Court noted that the proper procedure in this case would have been for the trial judge to consider whether the classic “Wigmore criteria” had been met, in which case the journalist would have had a valid claim for journalist privilege. These are: (1) the communication must originate in a confidence that it will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relationship must be one which in the opinion of the community ought to be sediciously fostered; and (4) the injury that would be caused to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. According to case law from the Supreme Court of Canada (in R. v. McClure), had these criteria been present, Peters’ claim for journalistic privilege would have prevailed and he would not have been required to identify his source.
Notwithstanding the fact this test was not applied, the Court of Appeal assumed for the purposes of the appeal, that even if the test were considered, the trial judge would not have found that the privilege was engaged.
The Court then turned to the issue of whether it was proper for the trial judge to immediately cite the journalist in contempt, upon his refusal to answer the question put to him. In determining this, the Court considered case law and guidelines by the Canadian Judicial Council underscoring the fact that a court’s power to find someone in contempt should be used sparingly and with restraint. It also noted that, in keeping with other media law cases, courts should avoid, wherever possible, situations where different Charter rights are made to compete with each other (e.g. freedom of expression rights for journalists v. fair trial rights for plaintiffs).
In the end, the Court held that the proper procedure would have been to make the order that the question be answered, but not to conduct the contempt proceedings until after the trial was complete. In this case, they would not have been necessary as “A” would likely have come forward in any event, thereby releasing Peters from his confidentiality obligation. Moreover, the Court found that it was inappropriate for the trial judge to find the reporter in civil contempt, as that was a coercive power of the court, as opposed to a punitive one. Once Merling had been exposed as the source, it was no longer necessary to coerce Peters, and, therefore the finding of civil contempt was unnecessary. The Court of Appeal overturned the finding of contempt as well as the requirement that Peters pay the $31,600 in “costs thrown away” to the other litigants. In doing so, the Court noted that, even if the contempt finding were upheld, the penalty imposed in this instance was “excessive in the circumstances.”
St. Elizabeth Home Society v. Hamilton (City) 2008 ONCA 182 (CanLII)