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Journalist Source Confidentiality Privilege
Published in the May 2010 issue of Litigation Notes - View Article
The Supreme Court of Canada has released an important decision dealing with the circumstances in which a journalist can be required to reveal the identity of a confidential source.
The Supreme Court of Canada recently released a decision that involved the issue of journalist source privilege. The Court undertook a reasoned analysis to determine the test for when a journalist could be forced to reveal a source to whom confidentiality was promised. The Court concluded that while no blanket privilege exists in Canada, courts must undertake a case-by-case analysis which applies the factors in the common law Wigmore test for privilege to the circumstances.
The facts of the case that resulted in the landmark decision involved an investigation into then Prime Minister Jean Chretien. The National Post, a Canadian newspaper, employed McIntosh as a journalist. McIntosh investigated whether Chretien, as Prime Minister, was improperly involved with a loan from a federally funded bank to a hotel in Chretien’s riding. McIntosh received a document that appeared to be a loan document from an anonymous source, “X”, in exchange for a promise of confidentiality. If genuine, the document could show that Chretien indeed had a serious conflict of interest. The Prime Minister and the bank who allegedly provided the loan maintained the document was a forgery. X told McIntosh that he received the document anonymously in the mail and believed it was genuine; McIntosh, believing X to be a reliable source, did not want to breach his confidentiality by handing over the document and envelope in which it was received, both of which could be forensically tested and could possibly identify X.
The RCMP received a complaint from the bank and it sought production of the document and the envelope and identification of the source, requests which were refused by McIntosh and the National Post. The RCMP applied for a search warrant and assistance order compelling the editor of the National Post to assist the police in locating the document and envelope. The warrant and assistance order were issued by a lower court in a hearing without notice to McIntosh and the National Post (“the Appellants”). The Appellants applied to quash the warrant and assistance order which were then set aside by the reviewing judge. The Ontario Court of Appeal subsequently reversed the reviewing judge’s decision and reinstated the warrant and the assistance order and that decision was appealed to the Supreme Court.
The majority of the Supreme Court dismissed the appeal and found that the Court of Appeal correctly applied the Wigmore test for privilege to the circumstances of the case, the result being the piercing of the journalist-source privilege. There were several issues relating to the warrant and assistance order which were appealed to the Supreme Court, including the question of the reasonableness of the warrant and assistance order within the meaning of s. 8 of the Charter of Rights and Freedoms (right to be secure from unreasonable search and seizure) and the procedure required for obtaining such relief. Perhaps the most important conclusion, and what will be discussed in this article, was the Court’s pronouncement on the journalist-source confidentiality privilege itself.
Several interveners made submissions at the Court including a coalition of media outlets who sought a case-by-case privilege where the Wigmore criteria are clearly defined in accordance with international jurisprudence. The Wigmore test involves a four part test, namely: 1) the communication must originate in a confidence that the identity of the informant will not be disclosed; 2) the confidence must be essential to the relationship in which the communication arises; 3) the relationship must be one which should be sedulously fostered in the public good; 4) whether in the instance case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. It was accepted that the first three criteria were met in this case; however, the parties differed on the interpretation of the fourth criterion which involves a balancing of the competing interests. The Supreme Court noted that the fourth criterion “does most of the work” and that “having established the value to the public of the relationship in question, the court must weigh against its protection any countervailing public interest such as the investigation of a particular crime (or national security, or public safety or some other public good).”
The Appellants and media interveners submitted that once the first three Wigmore criteria are established by the party seeking to assert the privilege, the onus should switch to the Crown (or other party seeking disclosure) to show why, on a balance of probabilities, disclosure should be ordered. The Court rejected this argument and held that this argument presupposes that a privilege arises after the third step and is then subject to rebuttal by the opposing party at the fourth step. However, the Court held it is not until the media have met all four criteria that journalist source privilege arises.
Despite not allowing for a shift in onus at the fourth step, the Court concluded that “onus will rarely play a pivotal role at the fourth step where the exercise is essentially one of common sense and good judgment.” Of particular assistance to the media is the fact that the Court held that during the application of the fourth stage, when weighing the competing interests of both sides, “the public interest in free expression will always weigh heavily in the balance.” Although the Court held that journalist-source privilege is not constitutionally protected per se, it held that freedom of the press will be valued accordingly and therefore, one can conclude that the Court has held that the Wigmore test for privilege in the journalist-source context is thereby infused with constitutional values.
In the end, the majority of the Court upheld the warrant and assistance order on the basis that the alleged offences are of sufficient seriousness to justify the decision of the police to investigate the criminal allegations and that the physical evidence itself (the document and the envelope) were essential to the police investigation and likely essential to any future prosecution. To that end, the physical evidence could be subject to DNA analysis for the purposes of investigating the alleged forgery designed to “prove” an egregious conflict of interest on the part of the Prime Minister.
R. v. National Post, 2010 SCC 16 (CanLII)