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Confidential Source Protected
Published in the March 2009 issue of Litigation Notes - View Article
Supreme Court of British Columbia considers the scope of the journalist-informant privilege
The Supreme Court of British Columbia recently ruled on an application to force a newspaper reporter to reveal the identity of a confidential informant. The plaintiff, Saggu, is an appointed member of the Board of Variance of the City of Burnaby, British Columbia, and a member of the City’s Indo-Canadian community. A group of residents presented a petition to the City alleging that the plaintiff was influencing members of the public, especially members of his own community, for personal gain.
Brooke Larsen, a reporter with the Canwest publication “Burnaby Now” received a telephone call from an informant, who told her that the petition had been submitted to the Mayor and Council of the City. The informant would not provide specifics of the petition, but offered to provide a copy on the condition that Ms. Larsen not reveal the informant’s identity. Ms. Larsen agreed and received a copy of the petition.
After conducting her own investigation, Ms. Larsen wrote an article headlined “Petition questions Board Member’s ethics”.She later wrote a second article headlined, “Mayor to ‘encourage’ Saggu to step down”.
After an investigation by the City solicitor it was determined that the allegations against the plaintiff had not been substantiated. The newspaper published an article written by a different reporter headlined “Report clears Saggu”, sub-headlined “Mayor Corrigan says ‘allegations have not been substantiated’ ”.
Saggu commenced a defamation action against Ms. Larsen and Canwest, as well as various individuals. They defended the action on the basis that articles were published without malice on an occasion of qualified privilege, based on the right of the citizens of the City of Burnaby to be informed of a public allegation of wrongdoing by a city official. They also pleaded that qualified privilege applied on the basis of “responsible journalism in the public interest”,defence which has been recognized recently by the Ontario Court of Appeal in Cusson v. Quan. An appeal from this latter decision was argued at the Supreme Court of Canada on February 17, 2009 and is currently under reserve.
The plaintiff argued that Larson and Canwest were obliged to produce relevant documents and to answer questions about the informant pursuant to the rules of court. It was argued that the identity of the informant, and questions and documents about the informant would be relevant to matters in question in the action. The Canwest defendants relied on the journalist-informant privilege which was recognized by the Supreme Court of Canada in R.v.. In determining whether the privilege should apply, the court will apply the four criteria set out in Wigmore on Evidence: (1) The communications must originate in a confidence that they will not be disclosed.(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
The Canwest defendants also argued that the information sought was not relevant to the case, as pleaded or if it was relevant at all, its relevance was marginal. On this point the Court agreed: “There is no plea against any party for having prepared or signed the Petition.Specifically, there is no plea that a defendant or even an unknown third party made the newspaper aware of the Petition and provided a copy of the Petition to the newspaper…It is clear on the evidence before me that the informant simply made the reporter aware of the Petition, and then, on condition of confidentiality, provided a copy of the Petition to the reporter.The informant’s identity is not germane to the allegations in the pleadings…”
The Court was prepared to dismiss the application on this basis, but in case it were found to be wrong on the issue of relevance, went on to consider the privilege argument. In considering the four Wigmore criteria, the court concluded 1) the informant stipulated for confidentiality and would not otherwise have provided the Petition to the reporter, and 2) Ms. Larsen and the newspaper would be significantly hampered in their ability to report on matters of interest to the public if confidentiality cannot be maintained, and 3) It is clear on the cases that the relation between informants and journalists is one which in the opinion of the community ought to be sedulously fostered, and 4) the facts to be disclosed were marginally relevant, at best, and the benefit to be gained by their disclosure was also marginal.
The application for disclosure of the informant’s identity was denied.
Saggu v. Canwest Publishing Inc., 2009 BCSC 362 (CanLII)