When does freedom of the press cede to investigating crime?: R v National Post

The Supreme Court of Canada (“SCC”) is set to decide whether confidential sources for newspaper reporters are entitled to a claim of privilege similar to that of confidential police informants. The case of R v National Post, which received leave to appeal this morning, will settle a long-standing grey area in Canadian media law, but to get there, the SCC will be asked to mediate between the conflicting public interests of investigating crime on the one hand, and the freedom of the press on the other.

The case revolves around the so-called “Shawinigate Scandal” involving former Prime Minister Jean Chrétien that caused a media flurry in 1999-2000. Mr. Chretien helped secure public grant and loan funding for a hotel he had owned in his home riding in Shawinigan, QC, causing a series of angry debates in the national newspapers and in the House of Commons. In 2001, a journalist at the National Post named Andrew McIntosh received a bank document from a confidential source which disclosed highly incriminating evidence of a conflict of interest on the part of the Prime Minister in the Shawinigate affair.

The bank, the Prime Minister’s Office, and the Prime Minister’s lawyer all claimed that the document was a forgery, spawning a police investigation. In 2002, the RCMP obtained a search warrant and production order whose combined effect was to require the Editor-In-Chief of the National Post to produce the document to the RCMP for the purpose of subjecting it to DNA and fingerprint analysis. In other words, the police hoped to use the document to identify Mr. McIntosh’s confidential source and to potentially lay charges for forgery.

The National Post applied for a certiorari order to quash the warrant on two grounds: first that the warrant violated the newspaper’s s. 2(b) Charter right to free expression, and second, that the document was protected from disclosure by journalist-confidential source privilege. The trial judge agreed with the Applicants and quashed the warrant, but the Ontario Court of Appeal disagreed.

At issue on appeal was whether the so-called “Wigmore critera” were satisfied such that privilege would attach to the relationship between Mr. McIntosh and his confidential source. Notably, the fourth and final criteria asks whether the harm to the relationship between the reporter and the source resulting from disclosure of the document would outweigh the benefits of getting to the truth of the matter of the allegedly forged document. Citing the fact that his document was potentially fabricated to stir up controversy surrounding the Prime Minister of Canada, the Court of Appeal found that the benefits of getting to the truth were ‘overwhelming.’ The interest in protecting confidential sources, meanwhile was ‘attenuated’ by the fact that in this case the media was “shielding a potential wrongdoer from prosecution for a serious crime.” To make its point clear, the Court of Appeal borrowed a line from a 1972 US Supreme Court decision: “…it is not necessarily better to write about crime than to do something about it.”

The National Post case is part of a long lineage of controversial events involving confidential media sources. More than once, a reporter has gone to jail to protect the identity of a source. In 1914, the Nova Scotia Legislature voted to imprison a Halifax reporter for refusing to disclose the author of an anonymous letter accusing some members of the government of corruption. During the FLQ bombings in Quebec in 1970, a CBC reporter was sent to prison for refusing to name a person who claimed to be the bomber. And more recently in 1995 a camera operator from a television station in Hull, QC, was jailed for contempt of court when he refused to reveal a source. For reporters, maintaining the confidentiality of sources is essential to proper journalism. Often it is only through a promise of confidentiality that a source will be willing to speak for fear of reprisals from the powerful employers, criminals, police, or government officials whom their information might implicate. If journalists are unable to make that promise, the argument goes, those sources will simply not come forward and the public’s access to information will suffer.

The National Post case has broader implications beyond the investigation of crime, however. Indeed, the case is far more significant to media law for the sort of action that newspapers find themselves in most often: defamation. When newspapers are sued for defamation, the plaintiffs can request the identities of their sources so they can be subpoenaed to trial. Likewise, if a reporter is asked at trial for the name of a source, she must answer. Such was the case in St. Elizabeth Home Society v Hamilton, 2008 ONCA 182 [St. Elizabeth Home Society], which went to the Ontario Court of Appeal earlier in 2008. In that case a reporter was found guilty of contempt of court for refusing to name a source when called to testify at trial. On appeal to the Ontario Court of Appeal, however, the conviction was overturned. The Court of Appeal did not address the privilege issue, deciding the case on other grounds. But significantly, the Court of Appeal found that pressuring reporters to disclose their confidential sources would have a ‘chilling effect’ on reporting and would potentially imperil the freedom of the press.

Confronted with the confusing and somewhat contradictory cases of National Post and St. Elizabeth Home Society arising from the same court, today’s decision of the SCC’s to review the matter will bring a welcome clarification to this perplexing area of law. Whether it will come down on the side of the police and their investigative powers or the freedom of the press will remain to be seen.

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