Globe and Mail v Canada: Whistle(blow) While You Work

As it stands, 2010 has been an interesting year for members of the media and media lawyers who are interested in the legal dimensions of the relationship between a journalist and her source. In particular, the Supreme Court of Canada has weighed in on two different issues related to journalist-source privilege.

Earlier this year, the Supreme Court of Canada in R v National Post, [2010] 1 SCR 477 [R v National Post] considered the dimensions of such a privilege in the context of the “Shawinigate” scandal involving former Prime Minister Jean Chretien. (Read more about the R v National Post decision here.) Essentially, the court rejected the argument for a class-based privilege between journalists and their sources, and also rejected the Charter argument put forth by the National Post. Instead, the court concluded that the common law Wigmore test should be applied to assess privilege on a case-by-case basis.

Globe and Mail v Canada (Attorney General), [2010] 2 SCR 592 [Globe and Mail v Canada], a decision released late in October, raises many of the same concerns about source confidentiality and journalist-source privilege, but in the civil litigation context. Relying on its earlier precedent in R v National Post, the court quickly concluded that the Wigmore test was preferable to a blanket class privilege or a constitutional protection for the journalist-source relationship. But the court also had to find a way to introduce the Wigmore framework – a doctrinal creation of the common law – into Quebec’s civil law system.

History and Facts

Using information obtained through a confidential source, Globe and Mail journalist Daniel Leblanc wrote a series of articles on the problematic activities surrounding the administration of the Sponsorship Program, a program created by the federal Cabinet in the late 90s to increase the government’s visibility in Quebec. Leblanc’s articles, which primarily targeted the misuse and misdirection of public funds, spawned a media furor, a political backlash and eventually even a Royal Commission (the Gomery Inquiry).

In 2005, the Attorney General of Canada filed a motion to recover money – a total of over $60 million – paid by the federal government under the program, and the Groupe Polygone was one of the entities implicated in the scandal. In response, the group maintained that the government had earlier knowledge of the scandal. It tried to advance a defence of prescription under the Civil Code of Quebec, LRQ, c C-1991 [Civil Code].

In the course of the litigation, Groupe Polygone applied for an order requiring certain persons to answer questions aimed at identifying the source behind the Globe and Mail articles. Hebert J. issued a series of orders instructing individuals to answer questions in writing.

A year later, the Globe and Mail brought a motion for revocation, arguing that the orders would have the effect of breaching journalist-source privilege. De Grandpré J. dismissed the paper’s objections, and leave to appeal was denied.

Additionally, in 2008, Leblanc wrote another article that reported details of the negotiation of a settlement between Groupe Polygone and the federal government.  Counsel for Groupe Polygone responded by complaining about the leak at the discontinuance proceedings, which created the need for further judicial guidance. As a result, de Grandpré J. made an order that prohibited Leblanc from reporting on the confidential settlement negotiations between the Attorney General and the defendants. Although the Globe and Mail argued that the order was, in effect, a publication ban, de Grandpré J. maintained that it was not despite providing no interim written or oral reasons. Once again, leave to appeal was rejected by the Quebec Court of Appeal.

At the Supreme Court of Canada, the two principal issues were the journalist-source privilege that should be afforded to Leblanc and the anonymous tipster, and the publication ban.

Let us be Civil about this: Introducing the Wigmore Framework

In R v Globe and Mail, the court strongly endorses the conclusion reached in R v National Post. There, the court rejected arguments on the Charter and on a reporting-class privilege, and adopted the Wigmore framework for issues of journalist-source privilege.

In essence, in order for a privilege to be recognized, the claimant of the privilege – in this case, the journalist and the Globe and Mail – must satisfy all four of the factors:

(1) the relationship must originate in a confidence that the source’s identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fostered in the public interest; and (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.

Writing for the court, LeBel J. does not seem to deviate from Binnie J.’s approach in R v National Post, where a particular emphasis was placed on the third and fourth factors for the journalist-source context. However, LeBel J. is well-aware that the circumstances of this case are quite different, stating:

While this appeal raises issues similar to those addressed in [R v] National Post, the context is nevertheless different. This case involves civil litigation, not the criminal investigative process. It involves testimonial compulsion, and not the production of documents or other physical evidence. The parties’ dispute is subject to the laws of Quebec and the Quebec [Charter of Human Rights and Freedoms, CQLR c C-12, [Quebec Charter]]. These factors must be considered in determining how, and to what extent, the majority reasons in [R v] National Post are equally applicable to the issues raised by this appeal.

Thus, although the court concluded that the Wigmore case-by-case approach should apply in the context of ordinary civil litigation, it had to contend with Quebec’s unique civil law tradition. As noted by the court, “it would be inappropriate for this Court to introduce into the Quebec law of civil procedure and evidence a framework for considering journalist-source privilege which originates entirely in the common law.”

In addition to the Civil Code, civil procedure is also codified in Quebec by means of the Code of Civil Procedure, CQLR c C-25 [Code of Civil Procedure]. The court was quick to note, however, that the codification of civil procedure does not mean that civil procedure “is completely detached from the common law model.” They noted that the Civil Code sets out a legal framework and essential rules of the law of civil evidence, but general principles have still have to be considered when an unresolved issue emerges in the application of the law.

The court quickly rejected arguments that journalist-source privilege is a quasi-constitutional privilege under the Quebec Charter, and acknowledged that neither the Civil Code nor the Code of Civil Procedure explicitly provided for the recognition of the privilege in a civil litigation context. However, the court noted that constitutional and quasi-constitutional rights are engaged because “some form of legal protection for the confidential relationship between journalists and their anonymous sources is required.”

Thus, the need for a framework represents a “legitimate and necessary exercise” of the court’s power to interpret the law, and the court analogized journalist-source privilege to police-informer privilege in this regard. Although police-informer privilege is a class privilege, the very thing they were rejecting, it does share roots in a common law rule of public policy.

In Bisaillon v Keable, [1983] 2 SCR 60, it was argued that since the Code of Civil Procedure was comprehensive, the omission of a testimonial exception for police informants meant that the Commissioner in the case could compel disclosure. Beetz J., writing for a unanimous case, concluded that because the police-informer privilege originated in the common law, the rule would only be overturned in Quebec law by a “validly adopted statutory provision.” Thus, since the Code of Civil Procedure was found to be lacking on this point, the common law rule remained a part of Quebec law.

Using this premise, the court in Globe and Mail concludes that:

Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in [R v] National Post, is equally relevant for litigation subject to the laws of Quebec.

Thus, although the Wigmore test does not have to explicitly guide the analysis of lower court judges, the court believes that it can “shape the structure of the analysis” when claims of journalist-source privilege are made in a Quebec civil litigation context.

On the issue of journalist-source privilege, LeBel J. concludes that Leblanc was entitled to have his claim for privilege tested against these criteria, and allowed the appeal. The court remitted the matter to Superior Court for a consideration of his claim, in accordance with the framework provided in the court’s judgment.

It is Not, Not A Publication Ban

After counsel for Groupe Polygone voiced their frustration over an article by Leblanc that publicized some of the details of a settlement negotiation between the Groupe and the Attorney General, de Grandré J. made an order without notice, without an application, and without submissions from either party. The judge also maintained that his order was not a publication ban, even though the order in effect forbade Leblanc from writing articles about the settlement negotiations.

On this point of appeal, LeBel J. clearly stated that de Grandpré J. had erred by depriving the parties the opportunity to be heard. Although the court acknowledged that art. 46 of the Code of Civil Procedure gave the Superior Court judge the authority to make orders ex proprio motu, the judge must do so in light of the rights of the parties. Given that a publication ban infringes on the constitutional rights of a party, it cannot be imposed unilaterally.

The court also rejected Groupe Polygone’s submission that Leblanc had committed a civil wrong under art. 36(2) of the Civil Code, which quantifies “intentionally intercepting or using…private communications” as the invasion of the privacy of a person. The court concluded that the wrong contemplated by this article was committed by the government source, and not the reportage of the information in the Globe and Mail. LeBel J. also cited strong policy grounds for this conclusion:

The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples. In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not provided the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources or information.

LeBel J. also concluded that this policy is consistent with the “Daily Mail principle” in the United States, where the state cannot punish the publication of truthful information about a matter of public importance, absent a higher order public interest.

The court also has no difficulty in qualifying the order as a publication ban, and concludes that the Dagenais/Mentuck framework should have been applied prior to making the order. In order to satisfy this framework, the order must be necessary to “prevent a serious risk to the proper administration of justice.” Additionally, the salutary effects of the ban must outweigh the deleterious effects to the rights and interests of the parties and the public.

LeBel J. found that the facts in this case failed to satisfy both prongs of the framework, and also addressed the question of the obligation on journalists when their source might be in violation of their confidentiality obligations:

I am reluctant to endorse a situation where the media or individual journalists are automatically prevented from publishing information supplied to them by a source who is in breach of his or her confidentiality obligations. This would place too onerous an obligation on the journalist to verify the legality of the source’s information.

Entering a Post-Post Era

Picking up where R v National Post left off, R v Globe and Mail confirms that the Wigmore case-by-case analysis is the appropriate test for journalist-source privilege whenever it is raised as an issue. In addition, it provides a workable legal framework for the analysis under the Quebec civil law traditional.

However, if I may editorialize for a moment, both these cases also reaffirm the importance of the news media as the fourth estate. As a former journalist and editor, I have watched the discussion of a journalist-source privilege with great interest and although I know that many of my former peers would disagree with me, the court has struck the appropriate balance in taking a case-by-case view.

Although there are a few negatives to a case-by-case standard – for one, it does not offer a reliable protection, and whistleblowers may be deterred for fear of having their anonymity compromised – it reflects the current nature of the journalistic profession. The truth of the matter is that “journalism” encompasses a broad range of media and a diverse range of reportage. Although a class privilege may have made more sense in print media’s heyday, it would not reflect the current nature of the profession.

More importantly, however, the court’s approach to the Wigmore framework in cases of journalist-source privilege rightly places the focus on the third and fourth branches of the test, where a particular emphasis is placed on the public interest. Leblanc’s writings are an excellent example of how journalists play an essential role in serving the public interest. These kinds of journalistic endeavours, as we can see in the aftermath of the Sponsorship Scandal, can play a pivotal role in holding public actors accountable.

Thus, by placing greater weight on the third and fourth factors in both R v National Post and R v Globe and Mail, the court has essentially afforded greater protections for journalist-source relationships that are beneficial to the public interest at large. In my view, these kinds of relationships are definitely worth fostering and protecting, and I think the court has struck an appropriate balance.