R v. National Post: Journalist-Source Confidentiality on a Case-by-Case Basis
Background and Facts
R. v. National Post, 2010 SCC 16 is a case stemming directly from the “Shawinigate” scandal involving former Canadian Prime Minister Jean Chrétien. According to a timeline provided by the National Post, the genesis of “Shawinigate” was the sale of a golf course and adjacent hotel by the former PM and his business partners to a Mr. Duhaime. The sale occurred in 1993—later that year, Chrétien was elected Prime Minister. Mr. Duhaime, wishing to expand the hotel, was initially rejected for a related loan from the Business Development Bank of Canada (BDBC). However, on his second application to BDBC he received a loan for $615,000.
Members of the media investigated the circumstances surrounding the second loan application, and various associated articles by reporter Andrew McIntosh appeared in the National Post. While Prime Minister, Chrétien admitted to calling the president of BDBC on behalf of Mr. Duhaime prior to the loan approval. As the scandal widened, Mr. Beaudoin, the president of BDBC at the time the loan was authorized, resigned under less than favourable circumstances. Then in 2001 the National Post obtained related documents from a secret source purporting to contain evidence of a debt owed by Mr. Duhaime to a Chrétien family holding company. The former PM claimed the documents were forged and his lawyer claimed that Mr. Beaudoin was the source.
Under a promise of confidentiality a “secret source”, appropriately referred to as Mr. X, and through an intermediary, Mr. Y, provided McIntosh with the documents implicating Chrétien. To assess the authenticity of the documents McIntosh forwarded them to the Prime Minister’s Office, the PM’s legal counsel, and the BDBC. All claimed the documents were a forgery and a complaint was made to the RCMP. After the National Post denied a request from the RCMP to hand over the documents the police obtained a warrant and assistance order from the Ontario Court of Justice for the National Post to produce the documents. The National Post made a successful application to the same court to quash the orders (R. v. National Post (2004), 69 O.R. (3d) 427). The Ontario Court of Appeal overturned that decision (R. v. The National Post (2008), 89 O.R. (3d) 1) and the National Post was granted leave to appeal by the SCC.
As mentioned, the RCMP claimed that there were reasonable grounds to believe that the loan documents in the possession of the National Post were forged and sought access to them as evidence of a crime. Accordingly, the majority of the SCC characterized R. v. National Post (2010) as a “physical evidence case” (that is, a case in which documents are possible physical evidence of a crime) and “not the usual case of journalists seeking to avoid testifying about their secret sources.”
In contrast to the majority’s characterization, the appellants presented their case in terms of whether or not it was appropriate to breach journalist-source confidentiality, along with a determination of the scope and legal basis for that privilege. As to be discussed, the SCC weighed the “public interest in the suppression of a crime” against the public interest in the “free flow of accurate and pertinent information.” Ultimately, whether or not the RCMP would be granted access to the documents would result from a determination of the nature and scope of journalist-source confidentiality. Accordingly, the following primary questions were addressed by the SCC:
- Does a journalist-source confidentiality privilege exist under s. 2(b) of the Charter?
- Is there a common law journalist-source confidentiality privilege?
- If question 2 is answered in the affirmative, should a journalist-source confidentiality privilege be applied on a class or case-by-case basis?
- Does the media merit special consideration under s. 8 of the Charter?
Section. 2(b) of the Charter Does not Guarantee Journalist-Source Confidentiality
Section 2(b) provides that everyone has fundamental freedoms including “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” The appellants and supporting interveners argued that s. 2(b) of Charter affords journalists a “constitutional immunity against compelled disclosure of secret sources.”
In arguing for constitutional (Charter) immunity, the British Columbia Civil Liberties Association and the Canadian Civil Liberties Association proposed the following broad three-part test: if (1) a journalist, has (2) engaged in news gathering, and (3) “has acquired information under a promise of confidentiality” she should enjoy immunity, unless an exception can be established under s. 1 of the Charter. Unfortunately, the majority rejected this civil libertarian ideal.
For one, the SCC held that finding in favour of constitutional immunity would establish Canada as one of the first common law jurisdictions to do so. Furthermore, similar privileges, such as solicitor-client privilege, have not been afforded constitutional protection. The SCC relied on precedent (R. v. McLure, 2001 SCC 14) that it interpreted as establishing solicitor-client privilege as a “fundamental and substantive rule of law” but not constitutionally engrained.
Next, the majority reasoned that the phrase “news gathering” necessitated a broad interpretation and various forms of news gathering, including the use of long-range microphones and telephoto lenses, were not “techniques entrenched in the Constitution.” In keeping with this line of reasoning, the majority stated that in this day and age the notion of “journalist” is quite broad, incorporating “blogging…[and] tweeting.” In view of that:
[t]o throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it…would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.
In my respectful opinion the majority appears to be getting ahead of itself when arguing against constitutional entrenchment on the basis of a problematic application of a potential immunity. To be clear, the majority reasoned that it would be difficult to precisely demarcate the diverse journalism profession between those whose actions may be worthy of constitutional immunity versus those who may not. Yet, the issue is not the precise scope of a potential constitutional immunity, but whether one exists at all. As an analogy, the application of s. 15 of the Charter requires, in part, the establishment of an enumerated or analogous ground. Not all distinctions in treatment under s. 15 violate the principle of equality. In fact, the courts have fashioned a test to limit what is considered in contravention of s. 15.
Furthermore, s. 1 (the reasonable limits clause) may be employed to validate exemptions to a constitutional right. If such an analysis were applied in the present case, whether or not to provide the constitutional right to a blogger would most likely rest on the application of the Oakes Test (R. v. Oakes,  1 S.C.R. 103). Under those circumstances it would appear difficult to reason that bringing to light potential evidence of a crime outweighs the protection of a constitutionally based journalist-source confidentiality privilege. Presumably, this would provide greater protection to journalists and the media. Yet, the majority held that “the purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity.”
The Journalist-Source Confidentiality Privilege is to be Determined on a Case-by-Case Basis
Does a journalist-source confidentiality privilege have a basis in the common law? If so, does this privilege belong to journalists as a class or on a case-by-case basis?
A common law privilege is deemed to exist on a case-by-case basis. The class privilege was rejected for the following reasons: a lack of precedent in both Canadian and foreign jurisdictions; journalists are not regulated professionals such as lawyers or the police; and it would be difficult to measure the scope and particulars of such a privilege considering the variable nature of the journalism profession.
The majority determined that the use of the Wigmore criteria (employed to establish confidentiality at common law) was suitable in order to establish if it is appropriate to breach journalist-source confidentiality, stating:
The Wigmore criteria provide a workable structure within which to assess, in light of society’s evolving values, the sometimes competing interests of free expression and the administration of justice and other values that promote the public interest. This will provide the necessary flexibility and an opportunity for growth that is essential to the proper function of the common law.
The SCC referred to the use of the Wigmore criteria set out by John Henry Wigmore when delineating the steps outlined below, along with reference to respective common law applications. For instance, the case of R. v. Gruenke,  3 S.C.R. 263 held that confidentiality surrounding “religious communications” was to be determined on a case-by-case basis. (More on Wigmore here and here).
Journalist-source confidentiality exists, according to the Wigmore criteria, if the following factors are met:
1. The communication originates 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…; and
4. The court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.
The onus was on the National Post to satisfy all of the aforementioned criteria. The first three conditions were satisfied in this case—the fourth was not. One and two were quickly validated to exist. As discussed, one of the factors against finding for a constitutional privilege was the difficulty with delineating serious or professional journalism from the myriad of non-professionals. Condition 3 of Wigmore accommodates this consideration. Determining whether the journalist-source relationship is one that should be “sedulously fostered in the public good” provides the opportunity to gauge the professionalism or seriousness of the relationship. For instance, the relationship between the small-time blogger and a confidential source “might be weighed differently” than the relationship in this case.
Despite the satisfaction of the first three Wigmore criteria, the failure to meet condition 4 represented the turning point in the decision and indicated that journalist-source confidentiality is afforded questionable protection under the law. For journalists, this may be of concern. In this case, the weight given to the potential evidence of a crime was significant. In future cases, the obvious question is whether or not police suspicion of a crime will lead the courts to mandate a breach of confidentially.
The majority found that when making a determination under criterion 4 “the nature and seriousness of the offense under investigation, and the probative value of the evidence sought to be obtained…[are] measured against respecting the journalist’s promise of confidentiality.” As well, “the underlying purpose of the investigation” is relevant at this stage. For instance, in O’Neill v. Canada (2006), 82 O.R. (3d) 241 the court found that the RCMP sought a warrant for the purpose of intimidating an alleged leaker to the Ottawa Citizen. In contrast, the underlying purpose of the investigation in the present case is deemed to be valid. (Readers may recall that, in O’Neill, an Ottawa Citizen journalist had written and published an article on Maher Arar purported to contain “secret official” information. The RCMP obtained search warrants for the journalist’s residence and Ottawa Citizen office based on the allegation that she “communicated “”secret official”” information” in violation of s. 4 of the Security of Information Act, R.S.C. 1985, c. O-5. On a challenge to the Ontario Superior Court of Justice, s. 4 was ruled unconstitutional for violating the freedom of the press guarantee under the Charter).
All things considered, in the present case the SCC recognized that the protection of confidential sources “is closely aligned with the role of ‘the freedom of the press…’” Furthermore, the “democratic deficit in the transparency and accountability of our public institutions” and the important role journalism plays in providing some level of transparency is acknowledged. However, it is ruled that “the “leak” of a forged document undermines rather than advances achievement of the purpose of the privilege claimed by the media in the public interest.” The competing interest to press freedom is the public interest in getting to the truth of the alleged forgery. This was held to outweigh the former. Thus, “[t]he bottom line is that no journalist can give a source a total assurance of confidentiality.”
The Court Orders were not Unreasonable under s. 8 of the Charter
Finally, the SCC dealt with the issue of the warrant and assistance order obtained by the RCMP authorizing a search of the National Post premises with the compelled aid of the editor-in-chief. Section 8 of the Charter states that “[e]veryone has the right to be secure against unreasonable search and seizure.” The National Post argued that the media enjoys a “special position” in relation to searches by authorities. Hence, the RCMP was obligated to provide notice of the warrant and assistance order.
The SCC determined that the issuing judge has the discretion to conclude at what stage in the process notice is required. A judge can proceed ex parte or a judge can exercise his or her discretion to provide notice to the targeted party of an application to obtain a warrant. Thus, the National Post would have had the opportunity to argue against the orders before they were issued.
To clarify, a judge has the discretion to proceed ex parte; or once the orders are issued, to provide adequate notice before they are executed. Adequate notice in the present case was one month from when the orders were issued. This period, the court reasoned, provided ample opportunity for the National Post to “move to quash it before any seizure occurred.” Furthermore, the judge has the discretion to insert “adequate terms…in any warrant to protect the special position of the media, and to permit the media ample time and opportunity to point out why…the warrant should be set aside.” In this case, the orders were held to be reasonable under s. 8; I will not discuss the reasoning on this element of the case in this post.
To conclude, a pledge of journalist-source confidentiality is only as good as the judiciary deems it to be, and a constitutionally entrenched immunity has been rejected. Unfortunately, only Justice Abella appears to accurately weigh the competing interests presented. Regarding journalist-source confidentiality, the Justice departed from the majority on the application of the fourth Wigmore criterion. Justice Abella asserted that injury to the journalist-source relationship is greater than the potential benefit “from the disclosure of the documents” especially considering that extracting physical evidence leading to the source at this point is questionable. Accordingly, Justice Abella reasoned that “[t]he remote possibility of resolving the debt forgery is far from sufficiently significant to outweigh the public benefit in protecting a rigorously thorough and responsible press.” Ultimately, Abella agreed with the majority’s employ of the common law test on a case-by-case basis, while rejecting a constitutionally entrenched journalist-source confidentiality privilege under s. 2(b) of the Charter.
On the related issue of notice under s. 8, Justice Abella held that the media is entitled to notice when a respective search warrant and similar order is sought, not merely after it has been issued. What’s more, “[a] search warrant of media premises is a particularly serious intrusion, and a decision should not be made about its propriety without submissions from the party most affected.”