Globe and Mail v. Canada (Attorney General)

Globe and Mail v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2010-10-22
Neutral citation
2010 SCC 41
Report
[2010] 2 SCR 592
Case number
32975, 33097, 33114
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 33097, 32975, 33114
Decision Content
SUPREME COURT OF CANADA
Citation: Globe and Mail v. Canada (Attorney General),
2010 SCC 41, [2010] 2 S.C.R. 592
Date: 20101022
Docket: 33114, 33097, 32975,
Between:
Globe and Mail, a division of CTVglobemedia Publishing Inc.
Appellant
and
Attorney General of Canada and Groupe Polygone Éditeurs inc.
Respondents
‑ and ‑
Fédération professionnelle des journalistes du Québec,
Ad IDEM/Canadian Media Lawyers Association, Astral Media Radio Inc.,
Groupe TVA inc., La Presse, ltée, Médias Transcontinental inc.,
Canadian Broadcasting Corporation and
Canadian Civil Liberties Association
Interveners
and between:
Globe and Mail, a division of CTVglobemedia Publishing Inc.
Appellant
and
Attorney General of Canada and Groupe Polygone Éditeurs inc.
Respondents
‑ and ‑
Barreau du Québec, Gesca Limitée, Joël‑Denis Bellavance
and Canadian Civil Liberties Association
Interveners
and between:
Globe and Mail, a division of CTVglobemedia Publishing Inc.
Appellant
and
Attorney General of Canada and Groupe Polygone Éditeurs inc.
Respondents
‑ and ‑
Fédération professionnelle des journalistes du Québec,
Ad IDEM/Canadian Media Lawyers Association, Astral Media Radio Inc.
Groupe TVA inc., La Presse, ltée, Médias Transcontinental inc. and
Canadian Broadcasting Corporation
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 102)
LeBel J. (McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
______________________________
Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592
Globe and Mail, a division of CTVglobemedia Publishing Inc. Appellant
v.
Attorney General of Canada and
Groupe Polygone Éditeurs inc. Respondents
and
Fédération professionnelle des journalistes du Québec,
Ad IDEM/Canadian Media Lawyers Association,
Astral Media Radio Inc., Groupe TVA inc.,
La Presse ltée, Médias Transcontinental inc.,
Canadian Broadcasting Corporation and
Canadian Civil Liberties Association Interveners
‑ and ‑
Globe and Mail, a division of CTVglobemedia Publishing Inc. Appellant
v.
Attorney General of Canada and
Groupe Polygone Éditeurs inc. Respondents
and
Barreau du Québec,
Gesca ltée, Joël‑Denis Bellavance and
Canadian Civil Liberties Association Interveners
‑ and ‑
Globe and Mail, a division of CTVglobemedia Publishing Inc. Appellant
v.
Attorney General of Canada and
Groupe Polygone Éditeurs inc. Respondents
and
Fédération professionnelle des journalistes du Québec,
Ad IDEM/Canadian Media Lawyers Association,
Astral Media Radio Inc., Groupe TVA inc.,
La Presse ltée, Médias Transcontinental inc.
and Canadian Broadcasting Corporation Interveners
Indexed as: Globe and Mail v. Canada (Attorney General)
2010 SCC 41
File Nos.: 33114, 33097, 32975.
2009: October 21; 2010: October 22.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the superior court of quebec and the court of appeal for quebec
Constitutional law — Canadian Charter — Human rights — Quebec Charter of human rights and freedoms — Evidence — Journalist‑source privilege — Freedom of expression — Access to information — Professional secrecy — Newspaper journalist receiving information from confidential unauthorized government source concerning company retained by federal government under Sponsorship Program — Newspaper publishing information alleging misuse and misdirection of public funds — Journalist compelled on cross‑examination to answer questions possibly leading to identity of source — Newspaper objecting — Whether relationship protected by class‑based journalist‑source privilege — Whether basis for privilege constitutional or quasi‑constitutional rooted in Canadian Charter and Quebec Charter rights — Whether common law framework to recognize case‑by‑case privilege relevant for civil litigation proceedings under Quebec law — Canadian Charter of Rights and Freedoms, s. 2 (b) — Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 3, 9, 44.
Constitutional law — Charter of Rights — Freedom of expression — Publication ban — Newspaper journalist receiving information from confidential unauthorized government source concerning company retained by federal government under Sponsorship Program — Information published including details about confidential settlement negotiations between government and company — Court making order prohibiting journalist from reporting and publishing further details concerning settlement negotiations — Whether order having effect of limiting journalist’s freedom of expression rights under Canadian Charter — Whether publication ban necessary to prevent serious risk to proper administration of justice
— Whether salutary effects of publication ban outweigh deleterious effects — Canadian Charter of Rights and Freedoms, s. 2 (b).
These three appeals have as their origin the litigation flowing from what is known as the Sponsorship Scandal. In March 2005, the Attorney General of Canada filed a motion in the Quebec Superior Court seeking to recover the money paid by the federal government under the Sponsorship Program. The proceedings were instituted against several of the companies and individuals retained by the Program and implicated in the Scandal, including Groupe Polygone. In response, Groupe Polygone advanced a defence of prescription under the Civil Code of Québec. As the litigation proceeded, and in support of its prescription defence, Groupe Polygone obtained orders requiring that certain persons, including several federal government employees, answer questions aimed at identifying the source of a journalist’s information. Based primarily on information received from a confidential unauthorized government source, L, a Globe and Mail journalist, had written a series of articles about the Sponsorship Program, alleging the misuse and misdirection of public funds. The Globe and Mail brought a revocation motion in respect of the orders issued by the Superior Court judge, arguing that their effect would be to breach journalist‑source privilege. L testified on the motion and was cross‑examined by counsel for Groupe Polygone. Counsel for the Globe and Mail objected to a number of questions posed to L, on the basis that they were either irrelevant, or that his answering them would lead to a breach of journalist‑source privilege. The judge refused to recognize the existence of a journalist‑source privilege and the objections were dismissed. Leave to appeal was denied by the Court of Appeal (“journalist‑source privilege appeal”). Rather than have its journalist answer the questions, the Globe and Mail sought to discontinue the revocation proceedings. The judge refused to allow the discontinuance, and the Quebec Court of Appeal dismissed the appeal (“discontinuance appeal”). Meanwhile, during the hearing of the discontinuance proceedings, Groupe Polygone complained about leaks dealing with the content of confidential settlement negotiations in which it was engaged with the Attorney General, the details of which were reported by L and published by the Globe and Mail. In response, and on his own motion, the Superior Court judge made an order prohibiting L from further reporting and publishing on the state of the negotiations. While the Globe and Mail objected to what it insisted was a publication ban, and one issued without the benefit of hearing from either party, the judge maintained that the order was not a publication ban, providing no further written or oral reasons for his decision. The Quebec Court of Appeal again rejected the Globe and Mail’s application for leave to appeal (“publication ban appeal”).
In the journalist‑source privilege appeal in this Court, the Globe and Mail argued that a class‑based journalist‑source privilege is rooted in the Canadian Charter and the Quebec Charter. In the alternative, it contended that the common law Wigmore doctrine to establish privilege on a case‑by‑case basis, but modified to account for the civil law tradition, is applicable. The Globe and Mail also challenged the order prohibiting the publication of information related to the settlement negotiations, as well as the order denying the discontinuance.
Held: The journalist‑source privilege appeal should be allowed and the matter remitted to the Superior Court of Quebec for consideration in accordance with the reasons for judgment. The publication ban appeal should be allowed and the order prohibiting the publication of information relating to the settlement negotiations quashed. The discontinuance appeal should be dismissed as moot.
There is no basis for recognizing a class‑based constitutional or quasi‑constitutional journalist‑source privilege under either the Canadian Charter or the Quebec Charter. For reasons set out in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, and in particular the difficulty in defining such a heterogenous and ill‑defined group of writers and speakers with the necessary degree of certainty, freedom of expression under the Canadian Charter and the Quebec Charter cannot constitute the basis for recognizing journalist‑source privilege. Similarly, s. 44 of the Quebec Charter, which protects access to information, does not broaden the scope of the right beyond what is defined by the provision itself. While the s. 44 right can inform the protection of the confidential relationship between journalists and their sources, it cannot constitute the basis for recognizing the privilege. Finally, because journalists are not bound to professional secrecy by law, s. 9 of the Quebec Charter, which protects professional secrecy, cannot ground a quasi‑constitutional right to the protection of media sources. There is, however, a basis in the laws of Quebec for a journalist‑source privilege or an exemption from the general obligation to give evidence in civil cases. Despite its common law origins, the use of a Wigmore‑like framework to recognize the existence of case‑by‑case privilege in the criminal law context is equally relevant for civil litigation matters subject to the laws of Quebec; recognition would result in consistency across the country, while preserving the distinctive legal context under the Civil Code of Québec. This case‑by‑case approach is consistent with the overarching principles set out in the Civil Code, the Quebec Charter and the Canadian Charter , and conforms with the law of evidence in Quebec as found in the Civil Code and the Code of Civil Procedure. It is also sufficiently flexible to take into account the variety of interests that may arise in any particular case.
Therefore, under the proposed test, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate first that the questions are relevant. If the questions are relevant, the court must then consider the four Wigmore 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. At the crucial fourth Wigmore factor, the court must balance the importance of disclosure to the administration of justice, against the public interest in maintaining journalist‑source confidentiality. This balancing must be conducted in a context specific manner, having regard to the particular demand for disclosure at issue. The considerations relevant at the fourth Wigmore stage include: the stage of the proceeding when a claim of privilege is raised; the centrality of the issue to the dispute; whether the journalist is a party to the litigation, or simply a witness; whether the facts, information or testimony are available by any other means; the degree of public importance of the journalist’s story; and whether the story has been published and therefore already in the public domain. In this case, the Superior Court judge erred in concluding that it was preferable to compel L’s answers on cross‑examination. L was entitled to have the questions put to him challenged for relevancy, and his claim for privilege rigorously tested against the Wigmore criteria. In particular, if the judge concluded that the first three factors favoured disclosure, he was then required to ask whether, on balance, the public interest in maintaining journalist‑source confidentiality outweighed the importance of disclosure to the administration of justice. The public interest here, is based largely on whether the questions would tend to reveal the identity of L’s confidential source. Ultimately, these matters are for the judge to determine, but in this case they were never considered because neither party was permitted to make submissions or tender evidence on the issue.
With respect to the publication ban appeal, the Superior Court’s order must be assessed for what it is: a court‑ordered publication ban which had the effect of limiting L’s s. 2 (b) freedom of expression Canadian Charter rights. The Superior Court judge therefore erred in not applying the Dagenais/Mentuck framework. The order was made without notice, without application and without the benefit of formal submissions from either party. By proceeding in this manner, in a case where there was no suggestion of urgency or delay inherent in hearing submissions that would prejudice either party, the Superior Court violated one of the fundamental rules of the adversarial process: it denied the parties an opportunity to be heard before deciding an issue that affected their rights. This, in itself, is sufficient to allow the appeal. Considering the publication ban on its merits, maintaining the confidentiality of settlement negotiations is a public policy goal of the utmost importance. However, confidentiality undertakings bind only the parties and their agents. Neither L nor the Globe and Mail was a party to the settlement negotiations. The wrong was committed by the government source who provided L with the information. Nothing in the record suggests that L was anything other than a beneficiary of the source’s desire to breach confidentiality. L was not required to ensure that the information was provided to him without the source breaching any of her legal obligations and he was under no obligation to act as her legal adviser. In any event, Groupe Polygone offered no tangible proof that its ability to effectively engage in settlement negotiations with the government has been irreparably harmed, nor has it offered any evidence of a serious risk to the administration of justice. At the time L’s article was published, the fact that the parties were engaged in settlement negotiations was already a matter of public record. Even if the ban were necessary to prevent a serious risk to the administration of justice, its salutary effects do not outweigh its deleterious effects which are serious. Upholding the order would prevent the story from coming to light, stifling the media’s exercise of their constitutionally mandated role to report stories of public interest, such as one where the federal government is seeking to recover a considerable amount of public money because of an alleged fraud against a government program. Given the result in the journalist‑source privilege and publication ban appeals, the discontinuance appeal is moot.
Cases Cited
Referred to: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; Gesca ltée v. Groupe Polygone Éditeurs inc. (Malcom Média inc.), 2009 QCCA 1534, [2009] R.J.Q. 1951, rev’g 2009 QCCS 1624 (CanLII); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665; Doré v. Verdun (City), [1997] 2 S.C.R. 862; Lac d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Société d’énergie de la Baie James v. Lafarge Canada Inc., [1991] R.J.Q. 637; Boiler Inspection and Insurance Company of Canada v. Corporation municipale de la paroisse de St‑Louis de France, [1994] R.D.J. 95; Grenier v. Arthur, [2001] R.J.Q. 674; Centre de réadaptation en déficience intellectuelle de Québec v. Groupe TVA inc., [2005] R.J.Q. 2327; Drouin v. La Presse ltée, [1999] R.J.Q. 3023; Tremblay v. Hamilton, [1995] R.J.Q. 2440; Landry v. Southam Inc., 2002 CanLII 20587; Marks v. Beyfus (1890), 25 Q.B.D. 494; D. v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171; R. v. Gruenke, [1991] 3 S.C.R. 263; Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89 O.R. (3d) 81; Charkaoui (Re), 2008 FC 61, [2009] 1 F.C.R. 507; Attorney‑General v. Mulholland, [1963] 2 Q.B. 477; Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487; Secretary of State for Defence v. Guardian Newspapers Ltd., [1985] 1 A.C. 339; In re An Inquiry under the Company Securities (Insider Dealing) Act 1985, [1988] 1 A.C. 660; Globe and Mail v. Canada (Procureur général), 2008 QCCA 2516 (CanLII); Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; Kosko v. Bijimine, 2006 QCCA 671 (CanLII); Waldridge v. Kennison (1794), 1 Esp. 143, 170 E.R. 306; Histed v. Law Society of Manitoba, 2005 MBCA 106, 195 Man. R. (2d) 224; Canadian Broadcasting Corp. v. Paul, 2001 FCA 93, 198 D.L.R. (4th) 633; Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); Bartnicki v. Vopper, 532 U.S. 514 (2001); Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Peat Marwick Thorne v. Canadian Broadcasting Corp. (1991), 5 O.R. (3d) 747; Amherst (Town) v. Canadian Broadcasting Corp. (1994), 133 N.S.R. (2d) 277; Canada (Canadian Transportation Accident Investigation and Safety Board) v. Canadian Press, [2000] N.S.J. No. 139 (QL); Calgary Regional Health Authority v. United Western Communications Ltd., 1999 ABQB 516, 75 Alta. L.R. (3d) 326; K. v. K. (E.), 2004 ABQB 847, 37 Alta. L.R. (4th) 118.
Statutes and Regulations Cited
Alberta Rules of Court, Alta. Reg. 390/68, r. 173.
Canadian Charter of Rights and Freedoms, ss. 2 (b), 32 .
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 3, 4, 5, 9, 9.1, 44, 52.
Civil Code of Lower Canada, art. 1206.
Civil Code of Québec, R.S.Q., c. C-1991, preliminary provision, arts. 3, 35, 36(2), 2803 to 2874.
Civil Procedure Rules (Nova Scotia), rr. 10.13(4)(a), 10.14(4)(a), 10.16.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 20, 46, 151.14, 151.16, 151.21, 398.1.
Constitution Act, 1867, s. 96 .
Professional Code, R.S.Q., c. C‑26, Sch. I.
Queen’s Bench Rules, Man. Reg. 553/88, rr. 49.06(1), (2), 50.01(9), (10).
Queen’s Bench Rules (Saskatchewan), rr. 181(3), 191(14), (15).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 24.1.14, 49.06, 50.09, 50.10.
Supreme Court Civil Rules, B.C. Reg. 168/2009, rr. 9‑1(2), 9‑2(1), (3).
Authors Cited
Cross and Tapper on Evidence, 11th ed. by Colin Tapper. New York: Oxford University Press, 2007.
Ducharme, Léo. L’administration de la preuve, 3e éd. Montréal: Wilson & Lafleur, 2001.
Ducharme, Léo. Précis de la preuve, 6e éd. Montréal: Wilson & Lafleur, 2005.
Jutras, Daniel. “Culture et droit processuel: le cas du Québec” (2009), 54 McGill L.J. 273.
Leblanc, Daniel. Nom de code: MaChouette: l’enquête sur le scandale des commandites. Outremont, Qué.: Libre Expression, 2006.
Leblanc, Daniel. “Sponsorship firm moves to settle with Ottawa”, The Globe and Mail, October 21, 2008, p. A11.
Québec. Assemblée nationale. Commission permanente de la Justice. Étude du projet de loi no 50 — Loi concernant les droits et les libertés de la personne. Journal des débats: Commissions parlementaires, 3e sess., 30e lég., no 6, 22 janvier 1975, p. B‑322.
Quebec. Ministry of Justice. Justice Today, by Jérôme Choquette. Québec: Ministry of Justice, 1975.
Royer, Jean‑Claude, et Sophie Lavallée. La preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.
Vallières, Nicole. “Le secret professionnel inscrit dans la Charte des droits et libertés de la personne du Québec” (1985), 26 C. de D. 1019.
[33114] APPEAL from an order of the Superior Court of Quebec (de Grandpré J.) dismissing objections to evidence. Appeal allowed.
[33097] APPEAL from a judgment of the Quebec Court of Appeal (Pelletier, Doyon and Duval Hesler JJ.A.), 2009 QCCA 235, [2009] J.Q. no 713 (QL), dismissing an application for leave to appeal from an order of de Grandpré J. prohibiting the publication of information. Appeal allowed.
[32975] APPEAL from a judgment of the Quebec Court of Appeal (Otis, Forget and Côté JJ.A.), 2008 QCCA 2464, [2008] J.Q. no 13554 (QL), 2008 CarswellQue 12763, dismissing an application for leave to appeal from an order of de Grandpré J. refusing to grant a discontinuance of proceedings. Appeal dismissed.
William Brock, Guy Du Pont, David Stolow and Brandon Wiener, for the appellant.
Claude Joyal, for the respondent the Attorney General of Canada.
Patrick Girard, Louis P. Bélanger, Q.C., and Frédéric Pierrestiger, for the respondent Groupe Polygone Éditeurs inc.
Christian Leblanc, Marc‑André Nadon and Chloé Latulippe, for the interveners Fédération professionnelle des journalistes du Québec, Ad IDEM/Canadian Media Lawyers Association, Astral Media Radio Inc., Groupe TVA inc., La Presse ltée, Médias Transcontinental inc., the Canadian Broadcasting Corporation, Gesca ltée and Joël‑Denis Bellavance.
Jamie Cameron, Christopher D. Bredt and Cara F. Zwibel, for the intervener the Canadian Civil Liberties Association.
Michel Paradis, François‑Olivier Barbeau, Gaston Gauthier and Sylvie Champagne, for the intervener Barreau du Québec.
The judgment of the Court was delivered by
LeBel J. —
I. Introduction
[1] It is a general and well-accepted rule of evidence that witnesses who are called to testify are obliged to answer the questions put to them, so long as they are relevant. The Globe and Mail (“Globe and Mail”) seeks an exception to this rule for the benefit of one of its journalists, Mr. Daniel Leblanc, on the basis that his testimony would reveal the identity of a confidential source and thereby infringe his s. 2 (b) rights under the Canadian Charter of Rights and Freedoms . The Globe and Mail also asks this Court to quash an order prohibiting it from publishing any information, however obtained, regarding confidential settlement negotiations involving the Government of Canada and Groupe Polygone Éditeurs inc.
[2] These appeals all have as their origin the litigation flowing from what is now known as the “Sponsorship Scandal”. More broadly, however, these appeals raise questions concerning access to the information provided by sources to journalists, and the confidentiality of their relationship, in the context of civil litigation subject to the law of Quebec. While some of these questions are analogous to those recently considered by this Court in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, which also dealt with the confidentiality of the journalist-source relationship, although in the context of a criminal investigation, these appeals also require this Court to consider the propriety of ordering a ban on the publication of settlement negotiations. A related procedural issue, in respect of an attempted discontinuance of procedures before the Superior Court of Quebec, is also before our Court in a third appeal.
[3] For the reasons that follow, the appeals dealing with the confidentiality of the journalist-source relationship and the publication ban are allowed. Because this result renders the discontinuance appeal moot, that appeal is dismissed.
II. Source of the Litigation and Its Procedural History
[4] Following the results of the 1995 referendum on Quebec sovereignty, the federal Cabinet created the Sponsorship Program (“Program”), which was designed to counteract the sovereignty movement and increase the visibility of the federal government in Quebec. Based primarily on information he received from a confidential source — who later became known by the alias MaChouette — a Globe and Mail journalist, Daniel Leblanc, wrote a series of articles on the Program. Mr. Leblanc focussed primarily on several problematic activities relating to the Program’s administration. His most significant allegations targeted the misuse and misdirection of public funds. Throughout the course of his communication with MaChouette, Mr. Leblanc agreed to protect her confidentiality and anonymity.
[5] In response to the articles written by Mr. Leblanc and others who picked up the story, considerable media and public interest was directed toward the Sponsorship Program. Following a scathing report from the Auditor General, a Royal Commission (the “Gomery Inquiry”) was struck to investigate what had become known colloquially as the “Sponsorship Scandal”.
[6] In 2006, Mr. Leblanc took an unpaid leave of absence from the Globe and Mail in order to author a book about the Sponsorship Scandal, which he eventually published under the title Nom de code: MaChouette: l’enquête sur le scandale des commandites (2006). While the Globe and Mail authorized the reproduction of articles that it had published and for which it held the copyright, it was not Mr. Leblanc’s book publisher. Nor did the Globe and Mail have any financial stake in the book’s publication.
[7] In March 2005, the Attorney General of Canada filed a motion, in the Quebec Superior Court, seeking to recover the money paid by the federal government under the impugned Program, which amounted to over $60 million. The proceedings were instituted against several of the companies and individuals retained by the Program and implicated in the Sponsorship Scandal, including the entities that collectively form Groupe Polygone. Since these proceedings were initiated, the Attorney General has maintained that it was not until May 2002 — after receiving the Auditor General’s report — that the government began to suspect fraud. The full extent of the fraud and the identity of its perpetrators, the government says, crystallized only with the revelations disclosed by the Gomery Inquiry.
[8] In response, Groupe Polygone, maintaining that the Government of Canada had earlier knowledge of the scandal, sought to advance a defence of prescription under the Civil Code of Québec, R.S.Q., c. C-1991 (“Civil Code” or “C.C.Q.”). As the litigation proceeded, and in support of its prescription defence, Groupe Polygone applied for an order requiring that certain persons, including several federal government employees, answer questions aimed at identifying Mr. Leblanc’s source. In a series of orders, Hébert J. instructed the individuals identified by Groupe Polygone to answer the questions in writing and to keep the matter confidential. At the request of the Attorney General, he also appointed counsel to act as advisor to those named individuals. Hébert J. then extended his initial order to answer questions to an additional group of individuals.
[9] Almost a year later, the Globe and Mail brought a revocation motion in respect of the orders issued by Hébert J., arguing that their effect would be to breach journalist-source privilege. It asked that these orders be quashed. Mr. Leblanc testified on the motion, argued before de Grandpré J., and he was cross-examined by counsel for Groupe Polygone. Counsel for the Globe and Mail objected to a number of questions posed to Mr. Leblanc, on the basis that they were either irrelevant, or that his answering them would lead to a breach of journalist-source privilege (the “objection motion”). De Grandpré J. dismissed these objections, orally, and refused to recognize the existence of a journalist-source privilege. Leave to appeal was denied by a single judge of the Court of Appeal, on the basis that the court lacked jurisdiction to hear the appeal. Rather than have its journalist answer the questions, the Globe and Mail sought to discontinue the revocation proceedings. De Grandpré J. refused to allow the discontinuance, and the Quebec Court of Appeal dismissed the appeal (2008 QCCA 2464 (CanLII)).
[10] In October 2008, Mr. Leblanc, in an article entitled “Sponsorship firm moves to settle with Ottawa”, The Globe and Mail, October 21, 2008, at p. A11, reported that Groupe Polygone had made a $5 million offer to settle its portion of the lawsuit. He also reported that the federal government had rejected the offer, and was in negotiations to obtain an additional $10 million from Groupe Polygone. Mr. Leblanc obtained the information at the heart of this article from an unauthorized government source.
[11] During the hearing of the discontinuance proceedings, counsel for Groupe Polygone complained intently about the leaks dealing with the content of the confidential settlement negotiations, and about repeatedly finding Groupe Polygone the subject of news articles and stories. In response, and on his own motion, de Grandpré J. made an order prohibiting Mr. Leblanc from further reporting and publishing on the state of the confidential settlement negotiations between the Attorney General and the defendants in the principal litigation. While the Globe and Mail objected vigorously to what it insisted was a publication ban, and one issued without the benefit of hearing from either party, de Grandpré J. maintained that the order was not a publication ban. He provided no further written or oral reasons for his decision, and the Quebec Court of Appeal again rejected the Globe and Mail’s application for leave to appeal (2009 QCCA 235 (CanLII)).
[12] A few months later, de Grandpré J. ordered a similar publication ban against La Presse and one of its journalists, Joël-Denis Bellavance. It forbade the publication of any information related to the confidential settlement negotiations. On this occasion, he provided written reasons (2009 QCCS 1624 (CanLII)). The Quebec Court of Appeal quashed this decision (Gesca ltée v. Groupe Polygone Éditeurs inc. (Malcom Média inc.), 2009 QCCA 1534, [2009] R.J.Q. 1951), and an application for leave to appeal is currently before this Court.
[13] The legal issues raised by the appeals concerning journalist-source privilege in the civil litigation context and the publication ban warrant their own consideration. I will consider each appeal in its own right.
III. The Objections and Questions Relating to the Confidentiality of Sources
A. Nature of the Appeal
[14] The first appeal (33114) deals with the questions put to Mr. Leblanc in the course of his examination with respect to the revocation matter. The issue raised by this appeal is whether the relationship between Mr. Leblanc and MaChouette is protected by journalist-source privilege, and thereby exempts Mr. Leblanc from answering any questions that would lead to her identification.
[15] The Globe and Mail argues that the basis of the journalist-source privilege is a constitutional one, rooted in s. 2 (b) of the Canadian Charter and s. 3 of the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12 (“Quebec Charter”). The privilege will arise when a person (1) is engaged in newsgathering; and (2) has provided an undertaking of confidentiality to his or her source, without which it is reasonable to assume that the source would not have come forward. Recognizing that no constitutional right is absolute, the Globe and Mail argues that s. 9.1 of the Quebec Charter requires a weighing of the right not to disclose the identity of a confidential source, against the “democratic values, public order and the general well-being of the citizens of Québec”. In the absence of a competing Quebec Charter right to obtain all relevant evidence in civil proceedings, the balancing must tip in favour of freedom of the press. The Globe and Mail argues that a wide range of factors are relevant to this balancing exercise: whether the cause of action is patrimonial or extra-patrimonial; whether the action is for damages, or some other form of relief; whether the journalist is a party to the proceedings; whether the issue is central to the resolution of the dispute; whether the story was published, and if so, its degree of public importance; and the potential consequences of disclosure.
[16] According to the Globe and Mail, the party seeking to pierce the privilege must then demonstrate (1) that the identity of the source is necessary to establish a particular fact; and (2) that establishing that particular fact is necessary for disposing of an issue in the dispute. Requiring a journalist to reveal the identity of a confidential source, under testimonial compulsion, should be a matter of last resort, not one of mere convenience. A recognition of the privilege, the Globe and Mail argues, translates into an evidentiary privilege, and thereby operates in a manner analogous to the right to professional secrecy under s. 9 of the Quebec Charter. However, if this Court rejects the existence of a stand-alone right, then the Globe and Mail argues, in the alternative, that the Wigmore doctrine, developed under the common law, however modified so as to account for the civil law tradition, is appropriate.
[17] Groupe Polygone argues ardently against the recognition of constitutional protection for the journalist-source relationship. Rather, the Wigmore test or a similar test developed under the civil law, and more specifically a recognition of the privilege on a case-by-case basis, is preferable. For the privilege to be recognized in a particular case, a journalist must demonstrate, on the facts, that the benefits of maintaining the privilege outweigh the prejudicial effects on the rights of parties to civil litigation, and those of society in the quest for truth and the proper administration of justice. Pursuant to this approach, Groupe Polygone says, disclosure should be the rule and testimonial immunity the exception.
[18] The Attorney General of Canada argues that, prior to determining whether a privilege of any kind exists, a court must first consider whether the proposed questions are relevant. If they are not, then there is no need to consider the existence of a privilege. As to the nature of journalist-source privilege, the Attorney General advances that, in the context of civil proceedings under the Civil Code, the court cannot resort to the Wigmore framework. The applicable framework must be grounded in the Civil Code and the Quebec Charter, and involve an assessment and balancing of competing interests. A journalist seeking to have the privilege recognized must demonstrate: that he or she was performing the work of a journalist; that the source requested anonymity and the journalist agreed to protect the source’s identity; that the protection has not been waived; that the questions put to the journalist, if answered, would disclose the identity; and that the prejudice caused to freedom of the press outweighs any prejudice to the fairness of the trial. By contrast, a party seeking disclosure must demonstrate: that the questions are relevant, and not simply a fishing expedition; that there is no other means of obtaining the information; that the cause of action or defence is well-founded in law; that the questions do not infringe unnecessarily on the right to privacy; and that the failure to answer the questions will necessarily jeopardize the fairness of the trial.
B. The Scope and Reach of R. v. National Post
[19] In R. v. National Post, this Court recently addressed the question of whether journalist-source privilege exists in Canada and, more importantly, the methodological framework through which it should be assessed. R. v. National Post involved the sending to the National Post newspaper, and its investigative reporter Andrew McIntosh, of a document that appeared to implicate then Prime Minister Jean Chrétien in a serious financial conflict of interest. The document in question, upon further investigation, appeared to be a forgery. The National Post found itself in possession of physical evidence, which in the view of the Crown was reasonably linked to a serious crime, and possibly the actus reus or corpus delicti of the alleged offences. The RCMP sought and obtained a search warrant and assistance order, which compelled the National Post to assist in locating the document, in order to conduct forensic and DNA testing on it and, it was hoped, identify the alleged forger. The National Post applied to have the warrant and assistance order quashed, partly on the basis that its disclosure, and the subsequent forensic testing, would “out” Mr. McIntosh’s confidential source.
[20] The Court was presented with three possibilities for recognizing the journalist-source privilege in the context of a criminal investigation: a constitutional privilege rooted in s. 2 (b) of the Canadian Charter ; a class-based privilege, analogous to solicitor-client privilege; or a privilege recognized on a case-by-case basis according to the four-factored Wigmore framework. The Court, unanimously, rejected the first two options. With respect to a constitutional privilege, Justice Binnie, writing for the majority, found that it carried the argument too far to suggest that specific newsgathering techniques are constitutionally entrenched. Furthermore, this Court had avoided conferring constitutional status on testimonial immunities more generally. Finally, the Court was unprepared “[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” (para. 40). The Court also held that, while there was a need for the law to protect the identity of confidential sources in some circumstances, the purpose of free expression guaranteed in s. 2 (b) could be met without granting a broad constitutional immunity to journalistic sources. Therefore, an order compelling a journalist to identify a source would generally not violate s. 2 (b) (para. 41).
[21] The Court also rejected the existence of a class-based privilege, on the basis that there is no formal accreditation or licensing process for journalists in place, as there is for lawyers for example, and no professional organization regulates the profession and maintains professional standards (para. 43). Nor is it clear, when dealing with this type of privilege, whether the journalist or the source is the “holder” of the privilege (para. 44), and no one had been able to suggest “workable criteria for the creation or loss of the claimed immunity” (para. 45). Finally, because a class-based privilege is more rigid than a privilege recognized on a case-by-case basis, it would “not lend itself to the same extent to be tailored to fit the circumstances” (para. 46) as they arise in individual cases.
[22] The Court concluded that the case-by-case approach, based on the Wigmore