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CONFIDENTIALITY OF REPORTER SOURCES

R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477

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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.

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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.

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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.

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Jim O'Neil, LL.B.

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