In this issue:
Media; journalists; confidential sources; freedom of expression; section 2(b); the Charter of Rights and Freedoms; search and seizure; search warrants; evidence; common law of privilege;
Andrew McIntosh was a journalist with the National Post from August 1998 through February 2005. He investigated Prime Minister Jean Chrétien's involvement with the Grand-Mère Golf Club located in Mr. Chrétien's home riding of St-Maurice, Quebec. He suspected Mr. Chrétien was involved in a 1997 loan from BDBC loan to the Auberge Grand-Mère, a hotel located next to the golf club, and with other federal grants in the riding.
A person, identified as "Y," advised Mr. McIntosh that he had information but would provide it only in exchange for a promise of confidentiality. Mr. McIntosh provided this blanket, unconditional promise, with the support of the National Post and its editor-in-chief. Y provided documents, explaining he was doing so on behalf of "X," a person from whom Mr. McIntosh had previously sought information. The documents appeared to be copies of BDBC file materials and other information. Based on this information, Mr. McIntosh reported that Mr. Chrétien had called the president of the BDBC and urged approval of the loan to the Auberge Grand-Mère. Mr. Chrétien acknowledged the story was accurate.
On April 5, 2001, Mr. McIntosh received a sealed plan brown envelope containing what appeared to be a copy of BDBC internal loan authorization documentation showing that a Chrétien family investment company was owed money by Auberge Grand-Mère. In checking the authenticity of the information, Mr. McIntosh was told by BDBC, by the prime minister's office and by Mr. Chrétien's lawyer that the documents were forgeries. Other news organizations also received the documents and ran the story. Mr. McIntosh did not.
X contacted Mr. McIntosh and confirmed (s)he had sent the envelope and asked that it be destroyed as (s)he was concerned that the police would use it to identify him/her. He told X that he would not dispose of them but that so long as he "believed that [X] had not provided the document to deliberately mislead. . . [the]undertaking of confidentiality would remain binding." He also told X that "should irrefutable evidence to the contrary emerge, [the] agreement of confidentiality would become null and void." X agreed to these terms.
BDBC made a complaint to the RCMP, who requested the envelope and X's identity from Mr. McIntosh, intending to pursue forgery charges. The RCMP advised that it would seek a search warrant and did so. Despite the National Post asking for notice and the ability to participate in the hearing of the application, the RCMP proceeded on an ex parte basis. The search warrant and order to provide assistance in locating the documents were given.
Mr. McIntosh and the National Post applied to set aside the search warrant and assistance order. These orders were set aside at the first instance. The Ontario Court of Appeal reversed the decision and reinstated the orders. Mr. McIntosh and the National Post appealed.
In dealing with criminal justice, the public has a right to all available evidence. Canadians have an obligation to come to court and provide their evidence when ordered. The issue in this case was whether freedom of expression under s.2(b) of the Charter, which includes "freedom of the press," can exempt persons from the obligation to provide evidence when the media is involved in protecting the confidential source.
The Supreme Court of Canada, in a 6 to 1 majority, dismissed the appeal, upholding the search warrant and assistance order. Justice Binnie wrote the decision of the majority.
The Court recognized the importance of the issues since the RCMP investigation potentially involved the creation of forged documents that implicated a sitting Prime Minister in a serious conflict of interest. Standing in the way of the investigation was a claim to constitutionally protected freedom of expression, or more particularly, the "freedom of the press." Despite the fact that Mr. McIntosh believed the sincerity of X, the police are not required to "accept at face value protestations of innocence by unknown persons relayed at third hand."
The Court acknowledged that the public has a right to knowledge about matters of public interest and that there are important cases in Canadian history that would not have disclosed without confidential sources and "whistleblowers." However, the Court did not recognize that the protection of confidential media sources is a constitutional imperative. The "purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity. Accordingly, a judicial order to compel disclosure of a secret source would not in general violate s. 2(b)."
The Court also did not recognize a broad class privilege that would broadly protect all confidential sources against disclosure by the media.
The Court favoured a case-by-case model of privilege for confidential media sources. This is not a mere rule of evidence, but could extend to preventing the execution of search warrants in appropriate cases. The general framework for considering media privilege is the "Wigmore criteria," long established in the common law.
In order to protect a communication: (1) it must originate in confidence such that the informant's identity is intended to be protected; (2) confidence must be essential to the relationship in which it arises; (3) the underlying relationship must be one that should be sedulously fostered; and (4) the court must be satisfied that the public interest would be served by protecting the informant's identity.
The fourth stage is the most important and most difficult. Neither party has the onus of proof in this last stage. The court will weigh all of the evidence and will always heavily weigh the public interest in free expression:
While confidential sources are not constitutionally protected, their role is closely aligned with the role of "the freedom of the press and other media of communication," and will be valued accordingly but, to repeat, at the end of the analysis the risk of non-persuasion rests at all four steps on the claimant of the privilege.
The Court also articulated a difference between protecting the identity of an informant and suppression of physical evidence, such as the envelope of documents.
In assessing the particulars of the specific informant and evidence, the Court had no trouble finding that the first three criteria were met. With respect to the fourth criterion, the Court reviewed the specifics of the evidence thought, including its potential probative value as evidence of a serious crime. Important to the Court's conclusion that the identity and documents were not to be protected is that there was only a third-hand, untested denial of wrongdoing.
With respect to notice to media, the Court held that there should be adequate terms in any warrant to protect the special position of the media and allow it ample time to point out why the Wigmore criteria are met and the warrant should be set aside.
The role of the media in a democracy is important, but also controversial. Like other groups in a democratic society, the professional media undoubtedly have a tendency to overestimate its own value. As stated by the New York Times:
In [whistleblowing] cases, press secretaries and public relations people are paid not to give out the whole story. Instead, inside sources trust reporters to protect their identity so they can reveal more than the official line. Without that agreement and that trust between reporter and source, the real news simply dries up, and the whole truth steadily recedes behind of a wall of image-mongering, denial and even outright lies.
This suggests that the media can be the sole, or at least most important protector of truth in a democratic society.
In this case, the objection of the National Post to disclosure of both hard evidence and source identity placed the media interests against "law and order" considerations of ensuring that the criminal law is enforced. In light of this, it is interesting that the National Post and Mr. McIntosh advocated for a "balancing of interests" approach, while the Canadian Civil Liberties Association and British Columbia Civil Liberties Association sought a blanket constitutional immunity under s.2(b) for confidential sources and evidence obtained by the media. In doing so, they incorrectly sought to elevate the relationship of media and source high above other confidential relationships in Canadian society.
How Important is the Media?
There is little doubt that the pursuit of truth is an important Canadian democratic principle. Freedom of expression is protected in Canada, in part, because the Charter recognizes that the seeking and obtaining of truth is an inherently valuable exercise. Section 2(b) of the Charter also encourages participation in social and political decision-making.
There is also little question that when media is free from government constraints to pursue and communicate information, these fundamental values are enhanced. However, this case did not involve the right of the press to communicate information. It dealt with how the press acquires information and whether its ability to pursue information should exempt it from complying with aspects of our criminal justice laws that other businesses and organizations are required to respect and obey.
Distinguishing between communication of information and the acquisition of information does not create a bright line. If legitimate media organizations are stymied in their ability to acquire information of wrongdoing, they are also prevented from communicating that information to the public. In this respect, when no journalist can give sources a total assurance of confidentiality, there may be a chilling effect on the willingness of whistleblowers to come forward.
As recognized by the Court, when investigative reporting "strikes at those in power it would not be unexpected that those in power including the police may wish to strike back." As much as the police are fundamental to our functioning democracy, they are not immune from corruptive influences or being used by unethical political masters to try to silence a source or prevent the light of truth shining on public wrongdoing.
That having been acknowledged, a blanket prohibition on the disclosure of sources or physical evidence would also protect those who seek to maliciously harm others. If the criminal and civil law were constitutionally prohibited from accessing the identity of confidential sources, there would be an increased incentive for some citizens, including those enjoying political or bureaucratic power, to spread false information for selfish or malicious purposes.
In light of these conflicting democratic considerations, who should balance the interests? If a journalist can independently decide to protect a source from the probing eye of law enforcement, that journalist is placed in a very powerful position. He or she determines the extent to which the information can be tested for its veracity in a court of law. His or her judgment as to the motives of the confidential source becomes unassailable.
In effect, the journalist decides what the public gets to know. This is already partially the case since the media is in the position of deciding what is news and acquires and distributes so much information in our democratic society. But when secrets are involved and there is limited access to information concerning potentially criminal behaviour, the public should not be expected to rely solely on the judgment of one or a small group of unelected journalists to determine whether the criminal justice system should be engaged, or allowed to succeed in prosecuting a wrongdoer.
In our parliamentary democracy, courts balance competing interests and should determine whether the public interest requires disclosure of evidence or compelling a source to give evidence. In determining that the Wigmore criteria should continue to be used to determine the extent of the protection, on a case-by-case basis, the Supreme Court of Canada properly circumscribed the role of the media and balanced the competing constitutional and democratic principles.
This approach allows the courts to determine whether the public will best be served by disclosure or identity protection. By removing this determination from an analysis under section 2(b) of the Charter, the government is not required to justify its pursuit of information in a criminal matter as an exception to a fundamental constitutional guarantee of freedom of expression. This does not mean that a confidential source will be disclosed in every situation; but it does allow the Court to more evenly balance the competing interests and ultimately determine what is in the public interest.
It's Also About the Relationship
It ought not to be forgotten that professional media is a business. In protecting a confidential source, a journalist is not solely protecting the person who provides information. The journalist is also protecting his or her business and his or her relationship with the person providing information. If, in a given situation, the source may not be protected, the journalist will have a greater incentive to be truthful and balanced in his or her reporting.
While some information may not be ascertained without the media, an approach that provides a blanket protection of confidential sources wrongfully presupposes that the media is our only or best source of public information. We cannot forget that criminal investigations and the civil lawsuits also result in the pursuit and establishment of truth. Through the courts, the disclosure of information can be compelled in a way that the media cannot achieve.
A blanket protection of confidential sources would also have elevated journalist-source relationships above equally or more valuable relationships in our society. In R. v. Gruenke, the Supreme Court of Canada dealt with confidentiality claims between a priest and penitent. It established that the guarantee of freedom of religion under s.2(a) of the Charter does not provide a blanket protection for "religious communications." Instead, the Court held that the Wigmore criteria should be applied to such communications to determine, on case-by-case basis, whether a particular discussion or disclosure should be immunized from disclosure at law.
Had the Supreme Court of Canada provided a blanket protection for confidential media sources, it would have made those relationships constitutionally more important in Canadian society than that between citizens and their priests and pastors. While there may be continued debate on whether freedom of religion should provide a wider blanket of protection for such relationships and communications, given the decision in Gruenke, a case-by-case analysis of media privilege claims was the correct approach.
How About the "New Media"?
Journalism in Canada is undergoing a sea change, with bloggers and other electronic sources of information usurping the traditional role of the "dead tree" press. Had the Supreme Court of Canada recognized a blanket constitutional protection for confidential "media" sources, it would either have given the professional media a significant advantage over newer sources of information or could have opened up the protection to every part-time blogger who gleefully toils at 3:00 am in her basement.
Either result would have been undesirable. Even though the traditional media is not strictly a "profession" with an enforceable code of ethics in the same manner as binds physicians, lawyers and others, there are significant educational, market and peer-pressure incentives that compel ethical and honest reporting. These do not apply to hobby bloggers in the same way. While the communications emanating from both needs protection under s.2(b) of the Charter, the relationships through which they acquire information are different and the application of the Wigmore criteria allow the courts to consider each specific privilege claim on its merits.
The court recognized this when stating "the relationship between the source and a blogger might be weighed differently than in the case of a professional journalist like Mr. McIntosh, who is subject to much greater institutional accountability" [emphasis added]. This potentially allows the protection to apply to bloggers, but also emphasizes the need for accountability on those who make it their business to widely disseminate information that can harm the interests and reputations of many in society.
Overall, the court's decision is a balanced one that recognizes the need for freedom of expression without unnecessarily allowing journalists to make themselves the sole arbiters of truth and justice. At the same time, the door is open for appropriate protection of information and sources when the public interest demands it. Ultimately, journalists will be accountable to the courts to justify their decisions purportedly made in the public interest.
This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar.
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