National Post: The Protection of Confidential Media Sources

The National Post recently announced that they are seeking leave to appeal an Ontario Court of Appeal decision, R v The National Post, 2008 ONCA 139, to the Supreme Court of Canada (“SCC”). The case looks at the tension between confidentiality and disclosure with regard to the protection of the sources of journalists.

In 2001, Andrew McIntosh, a reporter with the National Post received a document from a confidential source about an alleged conflict of interest involving then prime minister Jean Chretien. The document appeared to be a copy of a loan authorization by Business Development Bank of Canada for a hotel in Chretien’s home riding. Providing that the document was authentic, it could show that the prime minister had a conflict of interest involving the loan; however, representatives from the Business Development Bank of Canada complained to the police, claiming that the document was a forgery. In 2002 following these allegations, the police got an assistance order and search warrant and ordered that the National Post provide them with both the document and the envelope in which it was packaged. They planned to conduct fingerprint and DNA tests in an attempt to identify the individual who mailed it.

The Superior Court found in favour of the National Post, holding that by issuing a search warrant and assistance order without notice to the National Post, the issuing judge made a jurisdictional error. Further the order and warrant violated the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“] and journalist-confidential source privilege protected the impugned document and envelope.

On February 29, 2008, the Ontario Court of Appeal allowed the Crown’s appeal, setting aside the reviewing judge’s order and restoring the order of the issuing judge. In coming to this conclusion, the Court of Appeal found that the reviewing judge erred not only in holding that the issuing judge made a jurisdictional error in allowing the warrant and order without notice to the National Post, but also in finding that the envelope and document were privileged and that s. 2(b) of the Charter was violated by the warrant and order. While deference should be given to the reviewing judge’s decision, the record did not support the critical inferences that the conclusion was based upon.

Should the SCC grant leave to appeal to the National Post, the appeal could provide an important opportunity for clarification of the confidentiality rights of private sources to the media. Editor-in-chief of the National Post, Doug Kelly, explained in an article by Shannon Kari [(26 March 2008) online: <www.canada.com>]:

This issue is wider than the specifics of this case. It is about the media’s ability to do its job, to be able to bring forward information as part of its role in a functioning democracy. Stripping away a reporter’s ability to protect a credible source will spread a chill across journalism in this country and severely hamper our ability to expose wrongdoing and bring critical facts to light.

While this comment is certainly true, as sources to the media may be far less inclined to provide journalists with information and documents for stories if their anonymity may potentially be uncovered down the road, the Ontario Court of Appeal disagreed, explaining,

This is no ordinary crime. This is an especially grave and heinous crime… The National Post itself admitted that if the document was forged, it would be evidence of a criminal conspiracy to force a duly elected Prime Minister from office.” Further, the media in this case should be compelled to provide information to police as there is an “overwhelming law enforcement interest in the document.

While the Court of Appeal has a very legitimate concern considering significance of this issue, should the SCC set a precedent favouring disclosure over confidentiality, the media will likely be very negatively affected, as sources who expect confidentiality from reporters may be less inclined to come forward with information, leading fewer important news stories, or articles that are less informed without the potentially valuable information from these private sources.

[Editor’s note: the SCC has since rendered its judgement on this case in R v National Post, [2010] 1 SCR 477.]