R. v. National Post

R. v. National Post
Collection
Supreme Court Judgments
Date
2010-05-07
Neutral citation
2010 SCC 16
Report
[2010] 1 SCR 477
Case number
32601
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
Ontario
Subjects
Constitutional law
Criminal law
Evidence
Notes
SCC Case Information: 32601
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477
Date: 20100507
Docket: 32601
Between:
National Post, Matthew Fraser and Andrew McIntosh
Appellants
and
Her Majesty The Queen
Respondent
‑ and ‑
Attorney General of Canada, Attorney General of New Brunswick,
Attorney General of Alberta, Bell GlobeMedia Inc.,
Canadian Broadcasting Corp., British Columbia Civil Liberties
Association, Canadian Civil Liberties Association, and
Canadian Newspaper Association, AD IDEM/Canadian Media
Lawyers Association, Canadian Journalists for Free Expression,
Canadian Association of Journalists, Professional Writers Association
of Canada, RTNDA Canada/Association of Electronic Journalists,
Magazines Canada, Canadian Publishers’ Council,
Book and Periodical Council, Writers’ Union of Canada
and Pen Canada (“Media Coalition”)
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 92)
Partially Concurring Reasons:
(paras. 93 to 97)
Dissenting Reasons:
(paras. 98 to 159)
Binnie J. (McLachlin C.J. and Deschamps, Fish, Charron, Rothstein and Cromwell JJ. concurring)
LeBel J.
Abella J.
______________________________
R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477
National Post,
Matthew Fraser and
Andrew McIntosh Appellants
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada,
Attorney General of New Brunswick,
Attorney General of Alberta,
Bell GlobeMedia Inc.,
Canadian Broadcasting Corporation,
British Columbia Civil Liberties Association,
Canadian Civil Liberties Association, and
Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association,
Canadian Journalists for Free Expression,
Canadian Association of Journalists,
Professional Writers Association of Canada,
RTNDA Canada/Association of Electronic Journalists,
Magazines Canada, Canadian Publishers’ Council,
Book and Periodical Council, Writers’ Union of Canada
and PEN Canada (“Media Coalition”) Interveners
Indexed as: R. v. National Post
2010 SCC 16
File No.: 32601.
2009: May 22; 2010: May 7.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Freedom of expression — Journalist and confidential source — Document received by confidential source from anonymous sender given to journalist on condition of confidentiality — Document alleged to be forged — Search warrant and assistance order compelling production of document and envelope — Protection of confidential source — Whether guarantee of freedom of expression creates constitutionally entrenched immunity to protect journalists against compelled disclosure of confidential source — Canadian Charter of Rights and Freedoms, s. 2 (b).
Constitutional law — Charter of Rights — Search and seizure — Journalist and confidential source — Document received by confidential source from anonymous sender given to journalist on condition of confidentiality — Document alleged to be forged — Search warrant and assistance order compelling production of document and envelope — Protection of confidential source — Whether search warrant and assistance order reasonable within meaning of s. 8 of Canadian Charter of Rights and Freedoms — Whether newspaper should have been given notice of warrant application to search its premises.
Evidence — Privilege — Journalist and confidential source — Document received by confidential source from anonymous sender given to journalist on condition of confidentiality — Document alleged to be forged — Search warrant and assistance order compelling production of document and envelope — Protection of confidential source — Whether guarantee of freedom of expression creates constitutionally entrenched immunity to protect journalists against compelled disclosure of confidential source — Whether confidential source protected by common law of privilege — If so, whether journalist‑confidential source privilege constituted on case‑by‑case basis — What elements must be established and who bears burden of proof.
Criminal law — Search warrants — Search of newspaper office — Whether newspaper should be given notice of application for search warrant.
The National Post employed M as a journalist. M investigated whether C, then Prime Minister of Canada, was improperly involved with a loan from a federally funded bank to a hotel in C’s riding which allegedly owed a debt to C’s family investment company. X, a secret source, provided M with relevant information in exchange for a blanket, unconditional promise of confidentiality. In 2001, M received a sealed envelope in the mail that contained a document which appeared to be the bank’s authorization of its loan to the hotel. If genuine, it could show that C had a conflict of interest in relation to the loan. M faxed copies of the document to the bank, to the Prime Minister’s office, and to a lawyer for the Prime Minister. All three said that the document was a forgery. Shortly thereafter, X met M. X described receiving the document anonymously in the mail, discarding the original envelope, and passing the document on to M in the belief that it was genuine. M was satisfied that X was a reliable source who did not believe that the document was a forgery when he or she forwarded it to M. X feared that fingerprint or DNA analysis might reveal his or her identity and asked M to destroy the document and the envelope. M refused but told X that his undertaking of confidentiality would remain binding as long as he believed that X had not deliberately misled him.
The bank complained to the RCMP and an officer asked the appellants to produce the document and the envelope as physical evidence of the alleged crimes i.e. the forgery itself and the “uttering” (or putting into circulation) of the doctored bank records. They refused and M declined to identify his source.
The officer applied for a search warrant and an assistance order compelling M’s editor to assist the police in locating the document and the envelope. He intended to submit them for forensic testing to determine if they carried fingerprints or other identifying markings (including DNA) which might assist in identifying the source of the document. Although the Crown informed the judge that the National Post had requested notification of the application, the hearing proceeded ex parte and a search warrant and an assistance order were issued.
The warrant and the order provided the appellants with one month before the RCMP could search the National Post’s premises and included other terms intended to accommodate the needs of the National Post as a media entity. The appellants applied to quash the warrant and assistance order. The reviewing judge held that there was sufficient information to conclude the document was a forgery but that there was only a remote and speculative possibility that disclosure of the document and the envelope would advance a criminal investigation. She set aside the search warrant and the assistance order. The Court of Appeal reversed that decision and reinstated the search warrant and the assistance order. In this Court, the appellants and supporting interveners argued that the warrant and the order should be quashed because they infringe s. 2 (b) or s. 8 of the Canadian Charter of Rights and Freedoms , or because the secret sources are protected by the common law of privilege.
Held (Abella J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Binnie, Deschamps, Fish, Charron, Rothstein and Cromwell JJ.: It is well established that freedom of expression protects readers and listeners as well as writers and speakers. It is in the context of the public right to information about matters of public interest that the legal position of the confidential source or whistleblower must be located. The public has an interest in effective law enforcement. The public also has an interest in being informed about matters of public importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality. The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions. There is a demonstrated need, as well, to shine the light of public scrutiny on the dark corners of some private institutions. The appellants and their expert witnesses make a convincing case that unless the media can offer anonymity in situations where sources would otherwise dry‑up, freedom of expression in debate on matters of public interest would be badly compromised. Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment.
In appropriate circumstances, accordingly, the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor. The public’s interest in being informed about matters that might only be revealed by secret sources, however, is not absolute. It must be balanced against other important public interests, including the investigation of crime. In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence.
This case involves an attempt by person(s) unknown to dupe the appellants into publishing a document which, on its face, implicated a former Prime Minister of Canada in a serious financial conflict of interest. The appellants were unable to confirm the document’s authenticity and the police have reasonable grounds to believe that the document is a forgery. The document and envelope that came into M’s possession constitute physical evidence reasonably linked to a serious crime. The police seek to subject this material to forensic analysis. A search to retrieve the physical instrumentality by which the offence was allegedly committed would likely satisfy the test in s. 487 of the Criminal Code , even if (as the reviewing judge predicted) forensic analysis of the document and the envelope do not shed light on the identity of the offender. The document and the envelope are not merely pieces of evidence tending to show that a crime has been committed. They constitute the actus reus or corpus delicti of the alleged offences.
Freedom to publish the news necessarily involves a freedom to gather the news, but each of the many important news gathering techniques, including reliance on secret sources, should not itself be regarded as entrenched in the Constitution. The protection attaching to freedom of expression is not limited to the “mainstream media”, but is enjoyed by “everyone” (in the words of s. 2 (b) of the Charter ) who chooses to exercise his or her freedom of expression on matters of public interest. To 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 (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy. The law needs to provide solid protection against the compelled disclosure of secret sources in appropriate situations, but the history of journalism in this country shows that 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 in accordance with the principles of common law privilege would not in general violate s. 2 (b).
Although the common law does not recognize a class privilege protecting journalists from compelled disclosure of secret sources, a journalist’s claim for protection of secret sources can be assessed properly using the case‑by‑case model of privilege. 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 scope of the privilege will depend, as does its very existence, on a case‑by‑case analysis, and may be total or partial. It is capable, in a proper case, of being asserted against the issuance or execution of a search warrant. A promise of confidentiality will be respected if: the communication originates in a confidence that the identity of the informant will not be disclosed; the confidence is essential to the relationship in which the communication arises; the relationship is one which should be sedulously fostered in the public good; and the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. This approach properly reflects Charter values and balances the competing public interests in a context‑specific manner.
The media party asking the court to uphold a promise of confidentiality must prove all four criteria and no burden of proof shifts to the Crown. This includes, under the fourth criterion, proving that the public interest in protecting a secret source outweighs the public interest in a criminal investigation. The weighing up under this criterion will also include the nature and seriousness of the offence under investigation, and the probative value of the evidence sought to be obtained measured against the public interest in respecting the journalist’s promise of confidentiality. The underlying purpose of the investigation is relevant as well. Until the media have met all four criteria, no privilege arises and the evidence is presumptively compellable and admissible. Therefore, no journalist can give a secret source an absolute assurance of confidentiality.
In this case, the first three of the four criteria are met. The communication originated in confidence and neither the journalist‑source relationship nor the communication would have occurred without confidentiality. This type of journalist‑source relationship ought to be sedulously fostered given the importance of investigative journalism exploring potential conflicts of interest at the highest levels of government. The appellants, however, have failed to establish the fourth criterion. The alleged offences are of sufficient seriousness to justify the decision of the police to investigate the criminal allegations. The physical evidence is essential to the police investigation and likely essential as well to any future prosecution. While it is appropriate under this criterion to assess the likely probative value of the evidence sought, the reviewing judge ought not to have pre‑empted the forensic investigation by seemingly prejudging the outcome without first considering all the relevant factors in her assessment. DNA analysis is capable of producing results even under exceptionally unpromising circumstances. The police should not be prevented from pursuing well‑established modes of forensic analysis of relevant physical evidence on the basis that in the end such analysis may prove to be unsuccessful.
The argument that there is a “fatal disconnect between the envelope, the document, the identity of X and the alleged forgery” hinges on the credibility of X’s story that he or she was not the perpetrator of the forgery, but an innocent recipient, who passed it on to M in good faith. However a denial of criminal involvement is not a sufficient ground to put an end to a serious criminal investigation, even where the intermediate (though not the ultimate) intended victim of the alleged crime happens to be a media organization. The police need not accept X’s anonymous, uncorroborated and self‑exculpatory statements to a third party (M) as a reason to terminate their investigation of the physical evidence any more than they need accept the disclaimers of any other potential witness to a crime, especially when the witness may also be the perpetrator.
The media’s ss. 2 (b) and 8 Charter interests are clearly implicated when the police seek to seize documents in their possession. Even where no privilege is found to exist, warrants and assistance orders against the media must take into account their “special position” and be reasonable in the “totality of circumstances”. It is not sufficient for the Crown merely to establish that the requirements set out in ss. 487.01 and 487.02 of the Criminal Code were met. In this case, the conditions governing the search ensured that the media organization would not be unduly impeded by a physical search in the publishing or dissemination of the news. The order contained the usual clause directing that any documents seized be sealed on request. The police had reasonable grounds to believe that criminal offences had been committed and that relevant information would be obtained. The search warrant was reasonable within the meaning of s. 8 of the Charter .
On the facts of this case, the ex parte nature of the issuing judge’s order is not a ground for setting the warrant aside. There is no jurisdictional requirement to give notice to a media entity of an application for a warrant to search its premises. The media should have an opportunity to argue against a warrant at the earliest reasonable opportunity, but whether and when to provide prior notice remain matters of judicial discretion. Where, as here, a court proceeds ex parte, adequate terms must be inserted in the warrant to protect the special position of the media, and to permit the media ample time and opportunity to challenge the warrant.
In this case, the issuing judge was aware that the secret source issue lay at the heart of the controversy, and the appellants’ position was fully protected by the terms of the warrant. They have not demonstrated any prejudice on that account. The assistance order also was reasonable. Given the concerted action between M and his editor, it was appropriate to enlist the editor’s assistance in locating and producing the concealed documents.
Accordingly, the warrant and assistance order were properly issued and must be complied with even if the result is to disclose the identity of the secret source who, the police have reasonable cause to believe, uttered (and may indeed have created) a forged document.
Per LeBel J.: Claims of journalist‑source privilege should be resolved on a case‑by‑case basis applying the Wigmore criteria, and there is agreement with the majority’s weighing of the relevant rights and interests under the fourth criterion of the analysis.
There is agreement with Abella J. that when an application for a search warrant is made against a media organization, there is a presumptive requirement to give notice of the application to the affected organization. The media play a key role in disseminating information and triggering debate on public issues. The process of applying for search warrants should be sensitive to the need to prevent undue or overly intrusive interference in media operations and affected media organizations should be able to raise their concerns at the first opportunity. The requirement to give notice may be waived in urgent situations, in which case the issuing judge should craft conditions to limit interference with the media organization’s operations. In this case, since the lack of notice did not make the search unreasonable and the issuing judge proceeded on the basis of established law, the search warrant should not be quashed.
Per Abella J. (dissenting): Journalist‑source privilege should be assessed on a case‑by‑case basis. The balancing of the interests of the press against other societal interests, such as crime prevention, prosecution and investigation, should be done in accordance with the four Wigmore criteria, infused with Charter values. In this case, the search warrant and assistance order should be quashed. The criteria are met, including the fourth criterion, which requires the claimant to demonstrate that the injury that would inure to the relationship by the disclosure of the communications is greater than the benefit thereby gained for the correct disposal of the litigation. The harm caused by the disclosure of the identity of the confidential source in this case is far weightier on the scales than any benefit to the investigation of the crime.
The media’s role in disseminating information is pivotal in its contribution to public debate, and the use of confidential sources can be an integral part of the responsible gathering of the news and the communication of matters of public interest. Several jurisdictions have already recognized the importance of confidential sources by granting, legislatively or judicially, some form of qualified privilege to journalists. The chilling effect that could result from the compelled exposure of confidential journalistic sources also cannot be ignored. In the case before us, X’s confidentiality was crucial to M’s ability to write on a subject of public interest. M had prior positive experiences with X where he had been able to confirm the authenticity of information provided by X via an intermediary. He also took steps to assure himself of X’s credibility and integrity in connection with the latest document by asking for a confidential affidavit and telling X that his/her confidentiality would only be protected if M were satisfied that he was not being misled. Where a journalist has taken credible and reasonable steps to determine the authenticity and reliability of a source, one should respect his or her professional judgment and pause before trespassing on the confidentiality which is the source of the relationship. In this case, demonstrable and profound injury to the journalist/source relationship will result from disclosure of the documents and potentially of the identity of the source.
On the other side of the balancing exercise, the benefits of disclosure range from speculative to negligible. While it is undisputed that the investigation of crime is an important public objective, the evidence sought by the state is of only questionable assistance in this case. The police hoped to find DNA and fingerprint evidence on the envelope and the document which they thought might reveal the identity of the source of the alleged forgery. However, there is a fatal disconnect between the envelope, the document, the identity of X and the alleged forgery. X received the document anonymously and discarded the original envelope in which he/she received the document. Since X does not know the identity of the sender, learning X’s identity will yield virtually no evidence that could assist in determining who was responsible for the alleged forgery. Moreover, the more documents are manipulated, the less likely the chances of obtaining fingerprints. Both the document and the envelope had been extensively handled. X is therefore in no position to provide any information of assistance to the investigation and is, in any event, under no legal obligation to speak to the police. The benefit to the forgery investigation of getting the documents is, therefore, at best marginal. The only remaining purpose for learning the confidential source’s identity is to discover who created this public controversy. This by itself is not an acceptable basis for interfering with freedom of the press. Lastly, the remote possibility of resolving the debt forgery — a crime of moderate seriousness — is far from sufficiently significant to outweigh the public benefit in protecting a rigorously thorough and responsible press.
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. The operating presumption should be that the media’s unique institutional character entitles it to notice when a search warrant is sought against it unless there are urgent circumstances justifying an ex parte hearing. No such notice was given to the National Post and there was no such urgency. It therefore lost the opportunity to make timely submissions on the confidential nature of the source and the serious informational gaps in the Information to Obtain. Had the fuller record and their arguments been known, the outcome of the hearing might have been different.
Cases Cited
By Binnie J.
Referred to: St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 230 C.C.C. (3d) 199; Canadian Broadcasting Corporation v. Lessard, [1991] 3 S.C.R. 421; Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; R. v. Gruenke, [1991] 3 S.C.R. 263; Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572; Ashworth Hospital Authority v. MGN Ltd., [2002] UKHL 29, [2002] 1 W.L.R. 2033; McGuinness v. Attorney‑General of Victoria (1940), 63 C.L.R. 73; John Fairfax & Sons Ltd. v. Cojuangco (1988), 165 C.L.R. 346; Branzburg v. Hayes, 408 U.S. 665 (1972); M. (A.) v. Ryan, [1997] 1 S.C.R. 157; Slavutych v. Baker, [1976] 1 S.C.R. 254; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; O’Neill v. Canada (Attorney General) (2006), 213 C.C.C. (3d) 389; R. v. Murray (2000), 144 C.C.C. (3d) 289; Financial Times Ltd. v. The United Kingdom, [2009] ECHR 2065 (BAILII); Financial Times Ltd. v. Interbrew, [2002] EWCA Civ 274 (BAILII), leave to appeal to the House of Lords denied, 9 July 2002; E.C.H.R., Goodwin v. The United Kingdom judgment of 27 March 1996, Reports of Judgments and Decisions 1996‑II; Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487; John v. Express Newspapers, [2000] 3 All E.R. 257; Sanoma Uitgevers B.V. v. The Netherlands, E.C.H.R., No. 38224/03, 31 March 2009 (online: http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc.en); In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (2005); R. v. Canadian Broadcasting Corp. (2001), 52 O.R. (3d) 757, leave to appeal dismissed, [2001] 2 S.C.R. vii; R. v. Serendip Physiotherapy Clinic (2004), 73 O.R. (3d) 241; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860.
By Abella J. (dissenting)
Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572; Branzburg v. Hayes, 408 U.S. 665 (1972); In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (2005); New York Times Co. v. Gonzales, 459 F.3d 160 (2006); X Ltd. v. Morgan‑Grampian Ltd., [1991] 1 A.C. 1; Ashworth Hospital Authority v. MGN Ltd., [2002] UKHL 29, [2002] 1 W.L.R. 2033; E.C.H.R., Goodwin v. The United Kingdom judgment of 27 March 1996, Reports of Judgments and Decisions 1996‑II; Slavutych v. Baker, [1976] 1 S.C.R. 254; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 230 C.C.C. (3d) 199; John v. Express Newspapers, [2000] 3 All E.R. 257; Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127; Ernst v. Belgium (2004), 39 E.H.R.R. 724; Voskuil v. Netherlands (2007), 24 B.H.R.C. 306; Prosecutor v. Brdjanin and Talic, ICTY, No. IT‑99‑36‑AR73.9, 11 December 2002; Van den Biggelaar v. Dohmen/Langenberg, Hoge Raad der Nederlanden, Judgment of 10 May 1996, NJ 1996/578; British Steel Corp. v. Granada Television Ltd., [1981] 1 All E.R. 417; Financial Times Ltd. v. The United Kingdom, [2009] ECHR 2065 (BAILII); R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519; O’Neill v. Canada (Attorney General) (2006), 213 C.C.C. (3d) 389; Canadian Broadcasting Corporation v. Lessard, [1991] 3 S.C.R. 421; Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487.
Statutes and Regulations Cited
28 C.F.R. § 50.10(a) (2009).
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 3 , 7 , 8 , 24(2) .
Contempt of Court Act 1981 (U.K.), 1981, c. 49, s. 10.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 487 , 487.01 , 487.02 .
Criminal Procedure Act (S. Afr.), No. 51 of 1977, ss. 189, 205.
Free Flow of Information Act of 2009, H.R. 985, 111th Congr. (2009).
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 10.
Authors Cited
Abramowicz, David. “Calculating the Public Interest in Protecting Journalists’ Confidential Sources” (2008), 108 Colum. L. Rev. 1949.
Article 19 and Interights. Briefing Paper on Protection of Journalists’ Sources: Freedom of Expression Litigation Project, May 1998 (online: www.article19.org/pdfs/publications/right-to-protect-sources.pdf).
Bartlett, Peter. “Australia”, in Charles J. Glasser Jr., ed., International Libel and Privacy Handbook, 2nd ed. New York: Bloomberg, 2009.
Brabyn, Janice. “Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers’ Confidential Sources in Common Law Jurisdictions” (2006), 69 Mod. L. Rev. 895.
Canadian Association of Journalists. Guidelines for Investigative Journalism, approved at the 2004 Annual General Meeting (online: http://www.eagle.ca/caj/principles/principles-statement-investigative-2004.htm).
Editorial. “Shielding a Basic Freedom”, The New York Times, September 12, 2005, p. A20.
Freedman, Eric M. “Reconstructing Journalists’ Privilege” (2008), 29 Cardozo L. Rev. 1381.
Gora, Joel M. “The Source of the Problem of Sources: The First Amendment Fails the Fourth Estate” (2008), 29 Cardozo L. Rev. 1399.
New Shorter Oxford English Dictionary on Historical Principles, 6th ed., vol. 2. Oxford: Clarendon Press, 2007, “sedulous”.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 5th ed. Toronto: Irwin Law, 2008.
Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. by Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst. Markham, Ont.: LexisNexis, 2009.
United States. Congressional Research Service. CRS Report for Congress. Journalists’ Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes, June 27, 2007.
Wigmore, John Henry. A Treatise on the Anglo‑American System of Evidence in Trials at Common Law, 2nd ed. Boston: Little, Brown and Co., 1923.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
Youm, Kyu Ho. “International and Comparative Law on the Journalist’s Privilege: The Randal Case as a Lesson for the American Press” (2006), 1 J. Int’l Media & Ent. L. 1.
APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Simmons and Gillese JJ.A.), 2008 ONCA 139, 230 C.C.C. (3d) 472, 290 D.L.R. (4th) 655, 56 C.R. (6th) 163, 168 C.R.R. (2d) 193, 234 O.A.C. 101, 89 O.R. (3d) 1, [2008] O.J. No. 744 (QL), 2008 CarswellOnt 1104, setting aside a decision of Benotto J. (2004), 69 O.R. (3d) 427, 19 C.R. (6th) 393, 115 C.R.R. (2d) 65, [2004] O.T.C. 50, [2004] O.J. No. 178 (QL), 2004 CarswellOnt 173. Appeal dismissed, Abella J. dissenting.
Marlys A. Edwardh, John Norris and Jessica Orkin, for the appellants.
Robert Hubbard and Susan Magotiaux, for the respondent.
Cheryl J. Tobias, Q.C., Jeffrey G. Johnston and Robert J. Frater, for the intervener the Attorney General of Canada.
Written submissions only by Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
Jolaine Antonio, for the intervener the Attorney General of Alberta.
Peter M. Jacobsen and Tae Mee Park, for the intervener Bell GlobeMedia Inc.
Daniel J. Henry, for the intervener the Canadian Broadcasting Corporation.
Tim Dickson, for the intervener the British Columbia Civil Liberties Association.
Jamie Cameron and Matthew Milne‑Smith, for the intervener the Canadian Civil Liberties Association.
Brian MacLeod Rogers and Iain A. C. MacKinnon, for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, the Canadian Journalists for Free Expression, the Canadian Association of Journalists, the Professional Writers Association of Canada, RTNDA Canada/Association of Electronic Journalists, Magazines Canada, the Canadian Publishers’ Council, the Book and Periodical Council, the Writers’ Union of Canada and PEN Canada.
The judgment of McLachlin C.J. and Binnie, Deschamps, Fish, Charron, Rothstein and Cromwell JJ. was delivered by
[1] Binnie J. — The public has the right to every person’s evidence. That is the general rule. The question raised by this appeal is whether the appellants can exempt themselves from this obligation on the basis of a journalistic privilege rooted either in s. 2 (b) of the Canadian Charter of Rights and Freedoms which guarantees freedom of expression, “including freedom of the press and other media of communication”, or in the common law.
[2] Specifically, the National Post, its editor-in-chief and one of its journalists apply to set aside a search warrant obtained from the Ontario Court of Justice authorizing the police to seize what are alleged to be forged bank records and the envelope in which the appellants received the records from secret source(s). The police believe that seizure of the physical documents is essential to proof of the forgery, and that forensic analysis may lead them directly or indirectly to the identity of the perpetrators. The appellants, for their part, seek to protect the identity of their secret source(s), who may or may not be directly implicated in the forgery. If the police are correct, therefore, the documents in the control of the National Post and its co-appellants are not merely links in the chain of criminal investigation but constitute in themselves the essential physical evidence of alleged crimes — the forgery itself and the “uttering” (or putting into circulation) of the doctored bank records in the plain brown envelope.
[3] The courts should strive to uphold the special position of the media and protect the media’s secret sources where such protection is in the public interest, but this is not the usual case of journalists seeking to avoid testifying about their secret sources. This is a physical evidence case. It involves what is reasonably believed to be a forged document. Forgery is a serious crime. For the reasons that follow I agree with the Ontario Court of Appeal that the media claim to immunity from production of the physical evidence is not justified in the circumstances disclosed in the evidence before the court even if the end result proves to be information that may lead to the identification of the secret source(s). I would dismiss the appeal.
I. Overview
[4] This dispute is a controversy of undoubted public importance. It involves an attempt by a person or persons unknown to dupe the National Post into publishing an allegedly forged bank document which, on its face, implicated the then Prime Minister of Canada, Jean Chrétien, in a serious financial conflict of interest. The courts below concluded that the police possess reasonable and probable grounds to believe that the inculpatory entries on the “leaked” document are false. The document, if authentic, would have suggested that at the same time the Prime Minister was said to be exerting influence on the federal Business Development Bank of Canada (“BDBC”) to grant a $615,000 loan to the Auberge Grand-Mère, a private business in his riding, the Auberge Grand-Mère allegedly owed the Chrétien family investment company $23,040. Unless the Auberge Grand-Mère could be saved from insolvency, the story went, the debt would likely go unpaid. The Prime Minister’s private financial interest, on this theory of events, conflicted with his public duty. Some in the media referred to cluster of events around the loan controversy as “Shawinigate”.
[5] The public interest in freedom of expression is of immense importance but it is not absolute and in circumstances such as the present it must be balanced against other important public interests, including the investigation and suppression of crime. The courts understand the need in appropriate circumstances to protect from disclosure the identity of secret sources who provide the media, on condition of confidentiality, with information of public interest, but even the journalist Andrew McIntosh recognized that if his source had provided the document “to deliberately mislead me” the source would no longer be worthy of protection (A.R., vol. 4, p. 1, McIntosh Affidavit, at para. 227). It is true that Mr. McIntosh believed his source to be sincere. Nevertheless, according to Mr. McIntosh, the source acknowledged participation (he or she says innocently) in forwarding the alleged forgery. There would not be many successful criminal investigations if the police were required to accept at face value protestations of innocence by unknown persons relayed at third hand.
[6] The reviewing judge, Benotto J., quashed the warrant in part because she considered it unlikely that the outcome of the forensic analysis of the appellants’ documents would be successful ((2004), 69 O.R. (3d) 427). With respect, I do not think the possibility of failure is a reason to prevent the police from undertaking forensic inquiry by well-established techniques such as DNA analysis of documents which the appellants concede are reasonably linked to the alleged criminal offences. A search to retrieve the physical instrumentality by which the offence was allegedly committed would likely satisfy the test in s. 487 of the Criminal Code, R.S.C. 1985, c. C-46 , even if the documents did not shed light on the identity of the offender. Moreover, if Benotto J. is correct, and the envelope is unlikely to identify the confidential source, then there is little public interest in refusing its production to the police.
[7] In terms of the Charter , the appellants go too far in claiming a broad immunity from production of physical evidence. A claim that secret sources may be disclosed is not a complete answer to a criminal investigation. I conclude that the warrant in question does not infringe the appellants’ s. 2 (b) Charter freedom of expression. Nor, in my view, are the documents in question protected by a common law journalistic privilege. Nor, for the reasons to be discussed, does the warrant at issue in this case give rise to an unreasonable search or seizure within the meaning of s. 8 of the Charter . Journalistic privilege is very context specific. The appellants have not, in my view, made out their claim on the facts. The warrant is valid.
II. Facts
[8] The appellant Andrew McIntosh was employed by the National Post from August 1998 until February 2005. He took an interest in then Prime Minister Jean Chrétien’s involvement with the Grand-Mère Golf Club located in Mr. Chrétien’s home riding of St-Maurice, Quebec. His investigation led him to suspect Mr. Chrétien’s involvement with a 1997 loan from the BDBC to the Auberge Grand-Mère, a hotel located next to the golf club, and with other federal grants in the riding. During his investigations, Mr. McIntosh contacted a per